Department of Economic & Employment Development v. Hager

SALMON, Judge. The principal issue to be decided in this appeal is whether the Board of Appeals of the Department of Economic & Employment Development (“the Board”) erred when it concluded that an employee’s failure to accept a transfer to another shift constituted “gross misconduct” within the meaning of section 8-1002, Labor and Employment Article, Mary ³⁶⁶ land Annotated Code, 1 thus disqualifying the employee from receiving unemployment compensation benefits. FACTS The relevant facts are undisputed. On May 22, 1989, appellee and cross-appellant, Richard D. Hager (Mr. Hager), was hired by Imperial Cup Corporation (Imperial Cup) as a maintenance mechanic.

When Mr. Hager took the job he was told it would entail working on different shifts. Imperial Cup had three shifts: the first was 8:00 a.m. to 4:00 p.m.; the second was 4:00 p.m. to midnight; and the third was midnight to 8:00 a.m. Between May 22, 1989 and June 20, 1991, Mr. Hager worked primarily on the first shift although he also worked for nine months on the third shift and had occasionally been assigned to the second shift. On June 19, 1991, Mr. Hager was working the first shift when his supervisor advised him that another maintenance mechanic had quit and, as a consequence, he was going to be reassigned to the second shift.

Mr. Hager was selected for reassignment because he was the maintenance mechanic with' the least seniority. Mr. Hager’s response to the contemplated reassignment was a flat refusal. He gave no reason for his refusal except to say that the shift change “would disrupt his life style.” His supervisor then suggested that he might be able to limit the duration of Mr. Hager’s time on the second shift. The supervisor said that Imperial Cup would consider training other maintenance mechanics in order to allow Mr. Hager to return to the first shift after a period of between one and three months.

The supervisor also said that they would consider splitting the shift between Mr. Hager and another employee while the new maintenance mechanics were being trained. After hearing this, Mr. Hager again refused reassignment. He was promptly warned that his refusal might ³⁶⁷ lead to termination. Mr. Hager responded to the warning by retorting, “You do what you have to do.” The next day, June 20, 1991, Mr. Hager was advised by his supervisor that Imperial Cup had no choice but to transfer him to the second shift and that the transfer was to be effective on July 1, 1991.

Mr. Hager was asked for his response to the transfer and he said, “No, [I’m] not going to do that.” The supervisor again suggested “splitting the shift” and Mr. Hager again adamantly refused reassignment. Mr. Hager was then fired. On July 3, 1991, thirteen (13) days after he was fired, Mr. Hager filed a claim with the Department of Economic and Employment Development [“DEED”] for unemployment benefits. He said on his application for benefits that the reason he refused reassignment was that he had “child care” obligations.

He acknowledged that at the time he was fired his child care problems were not permanent but were ones he “couldn’t remedy ... overnight.” He admitted that his child care obligations were no longer a problem and therefore he was available to work “all hours.” On his application, Mr. Hager’s explanation for his failure to mention to his employer that he had child care problems was: “I got mad and offended by their trying to force something on me.” On June 25, 1991, a DEED claims examiner denied Mr. Hager unemployment benefits because in his view Mr. Hag-er’s conduct showed “gross indifference” to his employer’s interest, thereby constituting “gross misconduct” within the “meaning of Section 6(B) of the Maryland Unemployment Insurance Law.” 2 Mr. Hager appealed the claims examiner’s decision. On August 28, 1991, a DEED hearing examiner conducted a full ³⁶⁸ evidentiary hearing. Only Mr. Hager and a representative of Imperial Cup testified at the hearing. Mr. Hager was asked by the hearing examiner why he refused reassignment and he responded: Well, at the present time my ex-wife had taken a part-time job, and she wanted me to keep my son evenings, and I said okay.

I didn’t know what was going to happen, and — have the second shift transfer or nothing like that. In fact, it was pretty sudden. I mean, the guy that was on second shift, he quit, and they needed me to go there, and it just — I just couldn’t do it at the time. Mr. Hager made no other explanation at the hearing as to why he had refused reassignment.

The hearing examiner ruled, in pertinent part, as follows: Article 95A, Section 6(b) provides that an individual shall be disqualified from benefits where he/she is discharged from employment because of behavior which demonstrates a deliberate and willful disregard of standards which the employer has a right to expect. The preponderance of the credible evidence in the instant case will support a conclusion that the claimant was discharged for actions which meet this standard of the Law. Here, the employer has met its burden of proving that the claimant was discharged for gross misconduct. The claimant gave no reason to the employer for refusing to transfer to the second shift other than it would disrupt his life.

The disruption was, in actuality, the fact that the claimant was keeping his son in the evenings so that his ex-wife could work part-time. Since the employer’s intent was to start the claimant on the 4:00 to 12:00 shift on July 1, 1991, some ten days later, it must be concluded that his discharge was for gross misconduct within the meaning of the Law. Therefore, the determination of the Claims Examiner will be affirmed. (Emphasis added.) Mr. Hager appealed the hearing examiner’s decision to the Board.

The Board denied review and Mr. Hager appeal ³⁶⁹ ed, pursuant to section 8-512, to the Circuit Court for Baltimore City. 3 The circuit court heard argument and reversed the Board’s finding that Mr. Hager’s discharge was due to gross misconduct within the meaning of section 8-1002. Nevertheless, the circuit court remanded the case to the hearing examiner for the latter to determine if Mr. Hager was guilty of “misconduct” within the meaning of section 8-1003. 4 DEED filed a timely appeal and Mr. Hager filed a cross-appeal from the trial judge’s remand order. Additional facts will be included below as needed. ISSUES DID THE TRIAL COURT ERR IN REVERSING THE BOARD’S DETERMINATION THAT HAGER’S DISCHARGE WAS DUE TO “GROSS MISCONDUCT” AS DEFINED IN SECTION 8-1002?

The standard of judicial review of unemployment insurance determinations made by the Board is set out in section 8-512(d). Under that standard, the court should review the decision of the Board to determine only “the legality of the decision and whether there was ‘substantial evidence’ from the record as a whole to support the decision.” Department of Employment v. Jones, 79 Md.App. 531, 534 , 558 A.2d 739 (1989) and cases therein cited. The “substantial evidence” standard means that judicial inquiry should be limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. This need not ³⁷⁰ and should not be either judicial fact-finding or a substitution of judicial judgment for agency judgment.

Id. (quoting Baltimore Lutheran High School v. Employment Sec. Adm., 302 Md. 649, 661-62 , 490 A.2d 701, 708 (1985)). The agency’s decision is reviewed in the light most favorable to the agency and the reviewing court “should not substitute its judgment for the expertise of those persons who constitute the administrative agency from which the appeal is taken.” Board of Education v. Paynter, 303 Md. 22, 35-36 , 491 A.2d 1186 (citing Bulluck v. Pelham Wood Apts., 283 Md. 505 , 390 A.2d 1119 (1978)) (emphasis omitted). Section 8-1002 reads, in pertinent part, as follows: (a) “Gross misconduct” defined. — In this section “gross misconduct”: (1) means conduct of an employee that is: (i) deliberate and willful disregard of standards of behavior that an employing unit 5 rightfully expects and that shows gross indifference to the interests of the employing unit; or (ii) repeated violations of employment rules that prove a regular and wanton disregard of the employee’s obligations; and (2) does not include other misconduct.

(b) Grounds for disqualification. — An individual who otherwise is eligible to receive benefits is disqualified from receiving benefits if unemployment results from discharge or suspension as a disciplinary measure for behavior that the Secretary finds is gross misconduct in connection with employment. The Board found that Imperial Cup had met its burden of proving gross misconduct as defined in section 8-1002(a)(l)(i). The question then becomes whether there was ³⁷¹ substantial evidence presented to the Board from which a reasoning mind could have reached that conclusion. The Board contends that there was and we agree.

Disregard of Rightfully Expected Behavior When Mr. Hager first accepted employment with Imperial Cup, he agreed to work all three shifts. Mr. Hager was at the bottom of the seniority ladder and he was given ten days’ notice of the impending shift change. As admitted by Mr. Hager’s counsel during oral argument in this Court, Imperial Cup had a perfect right to reassign Mr. Hager to a different shift. Therefore, Imperial Cup had a right to expect its employee to accept reassignment.

In this employment context, Mr. Hager’s adamant refusal to accept reassignment was in disregard of the standard of behavior that Imperial Cup had a right to expect. Willful and Deliberate Whether Mr. Hager’s refusal to accept reassignment was accompanied by a “deliberate and willful” state of mind was a factual issue for the Board to resolve. “The state of a man’s mind is as much a matter of fact as the state of his digestion.” Noffsinger v. Noffsinger, 95 Md.App. 265, 275 , 620 A.2d 415 (1993) (quoting Lord Bowen in Edgington v. Fitzmaurice, 29 Ch.D. 459, 483 (1885)). It is a fact that cannot be proven directly. The matter is determined by drawing reasonable inferences from admitted conduct.

As stated in Department of Employment v. Jones, supra, 79 Md.App. at 535-36 , 558 A.2d 739 , There are no hard and fast rules to determine what constitutes deliberate and willful misconduct. Department of Employment v. Owens, 75 Md.App. 472, 477 , 541 A.2d 1324 (1988). In Emp. Security Board v. LeCates, 218 Md. 202 , 145 A.2d 840