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Venue Federal law specifies appropriate venue


for discrimination cases in federal court.36 State law venue provisions are less expan- sive. Article 49B specifically provides only that: “An action under subsection (a) of this section shall be commenced in the circuit court for the county in which the alleged discrimination took place.”37 In Pope-Peyton v. Realty Management


Services, Inc., the Court of Special Appeals resolved a conflict between the employer who sought to have the case litigated in Montgomery County (where its office was located and the employment decisions at issue had been made) and the employee who brought the litigation in Prince George’s County (where she worked) holding: As mentioned earlier, the phrases ‘took place’ and ‘to happen’ have equivalent meanings. In our view, the discrimina- tion, which Ms. Pope-Payton alleges, happened in Prince George’s County because it was there that RMS’s alleged decision to discriminate was imple- mented. If the decision had not been implemented, no discrimination could be said to have ‘taken place.’38 At the risk of stating, or missing, the


obvious, if an employee who works in Harford or Worcester County, for exam- ple, is fired by a human resource director whose office is in Prince George’s County, that employee has no private cause of action because the discrimination was implemented in Hartford or Worcester County, neither of which is a jurisdiction which affords a private cause of action. It should be noted that Article 49B specifies that actions are to be brought in circuit court. Presumably this is meant to supersede those provisions of the Courts and Judicial Proceedings Article vesting concurrent jurisdiction in the District


36


37 38


An action may be brought “in [1] any judicial district in the State in which the unlawful employment practice is alleged to have oc- curred, [2] in the judicial district in which the employment records relevant to such practice are maintained and administered, or [3] in the judicial district in which the per- son would have worked but for the alleged unlawful employment practice, but [4] if the respondent is not found within any such district, such action may be brought within the judicial district in which the respondent has his principal office.” 42 U.S.C. §2000e- 5(f) (3) (emphasis added). § 42(b)(1) (emphasis added).


815 A.2d 919, 930 (Md. 2003) (emphasis added).


44


Court of Maryland for claims between $5,000 and $25,000.39 Practitioners, however, should consider


that some employer actions may also constitute common law claims. For ex- ample, unwanted touching may be either or both sexual harassment and battery. In such case, it is advisable to consider the advantages of pursuing the less com- plicated, time consuming and expensive route of a District Court claim alleging battery and foregoing a claim of sexual harassment.40


Avoiding Removal to Federal Court Having chosen to bring a state cause


of action, one does not want to open the door to a defendant’s efforts to remove the case to federal court.41


The first (and


sometimes not so obvious) point is to plead only the state cause of action. Add- ing a federal claim is an invitation to a defendant to file a notice of removal. Removal, however, is also proper, if


there is diversity between all plaintiffs and defendants. 42


The citizenship of a


corporation is expressly stated to be: “For the purposes of . . . [removal] – (1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principle place of business. . . .” 28 U.S.C. §1332(c)


Damages Injunctive relief is available under all


of the statutes discussed in this Article. In other words, a court may order an employer to cease discriminating against an employee and order reinstatement, promotion, or otherwise undo the ef- fects of discrimination.43


Monetary relief,


however, is a more complicated issue. Under federal law, both compensa-


39


This is specified notwithstanding the con- current jurisdiction of the District Court of Maryland for claims which exceed $5,000 exclusive of interest, costs and attorney’s fees recoverable by law, but are within the District Court’s maximum of $25,000, also excluding interest, costs and attorney’s fees. Annotated Code of Maryland Courts and Judicial Proceedings Article §§4-402(d)(1)(i) and 4-401(1).


40 41


This course of action would prevent the plaintiff from recovery her attorneys’ fees.


28 U.S.C. § 1441, et seq. Note that 28 U.S.C. §1446 provides that notice of re- moval must be filed “within thirty [30] days after the receipt by the defendant by service or otherwise, a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty [30] days after service of summons upon the defendant if such initial pleading has then been filed in court and is not re- quired to be served on defendant , whichever period is shorter.” See also F.R.Civ.P. 81(c).


42


28 U.S.C. § 1332(a) (“The district courts shall have original jurisdiction of all civil ac- tions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs”).


Trial Reporter


tory and punitive damages are available. However, punitive damages may only be awarded if the plaintiff demonstrates the discrimination was intentional. Compen- satory damages are available for “future pecuniary losses, emotional pain, suffer- ing, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecu- niary losses,” but the combined total for punitive and compensatory damages may not exceed $300,000.00 for the largest employers (500 or more), or $50,000.00 for the smallest employers (no more than 50).44


Backpay and other related damages


are not included in the cap under federal law. Article 49B § 42 permits employees


filing civil suits in Montgomery, Prince George’s, and Howard Counties to recover “damages, injunctive relief, or other civil relief.” Section 43, however, specifically excludes punitive damages from the avail- able awards in Baltimore County.


Attorneys’ Fees Although attorneys’ fees are available


to the prevailing party under both federal and Maryland law (in the court’s discre- tion), the amount may be determined


43 See, e.g., Article 49B §§ 42(a), 43(a). Winter 2007


It has become expected for employ-


ers to claim, whenever colorable, that corporations are non-Maryland citizens and therefore a state law claim brought by a citizen of Maryland may be properly removed to federal court. Sometimes that is a reality that must be confronted, but diversity jurisdiction is available only if the “amount in controversy exceeds the sum or value of $75,000.” A realistic evaluation of potential damages may lead to the conclusion that the case will not reach the statutory threshold. And it is necessary for a competent practitioner to weigh the relative merits of making a claim above the threshold and risking removal to federal court with the advan- tages claiming less and remaining in state court.


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