Department of Economic & Employment Development v. Taylor

HOLLANDER, Judge. In this case, we must decide whether the doctrine of “constructive voluntary quit” constitutes a ground for disqualification from unemployment benefits. We conclude that it does not apply as a bar to recovery of unemployment compensation. Maria M. Taylor, appellee, applied for unemployment benefits after she was terminated from her employment with the County Commissioners of Frederick County, Maryland (“the County”).

The County discharged Taylor because her Frederick County driving permit, which she needed in order to perform her job, was revoked after Taylor was convicted for driving while intoxicated. The Board of Appeals (“the Board”) of the Department of Economic and Employment Development (“DEED”), 1 appellant, held that Taylor’s loss of her driver’s permit constituted a breach of “a condition of continued employment ... required by her employer,” and amounted to a “constructive voluntary quit,” thus disqualifying her from receiving benefits under the “voluntarily leaving work” provision of the Maryland Unemployment Insurance Act, Md.Code (1991, 1995 Supp.), § 8-1001(a) of the Labor & Employment Article (“L.E.”). Taylor sought review of the Board’s decision in the Circuit Court for Washington County. It reversed, holding that Taylor’s actions did not amount to “voluntarily leaving work.” The Board has now appealed to this Court; appellee did not ²⁵⁸ submit a brief or appear at oral argument. 2 The Board presents the following issues for our consideration: I. Is the Board’s determination that Appellee voluntarily left her employment by failing to meet a condition of the employment correct as a matter of law?

II

Is the Board’s finding that Appellee voluntarily quit her employment supported by substantial evidence? We hold that the Maryland Unemployment Insurance Act does not authorize the denial of benefits to a claimant on the ground of “constructive voluntary quitting.” Therefore, we answer both questions in the negative and shall affirm the circuit court. FACTUAL SUMMARY Since 1986, Taylor was employed as a laborer for the County. Her job entailed manual work for the County Department of Parks and Recreation, including a variety of parks maintenance and custodial tasks.

As part of her job, she was required to operate a County vehicle, both in the parks and on public roads. Therefore, as a condition of her employment, Taylor was obligated to have a valid Maryland driver’s license and, in addition, a “Frederick County Employee Driving Permit.” In order for employees to retain their driving permits, the County required that the employees have fewer than six points on their driving records. In January 1989, Taylor was stopped on suspicion of driving while intoxicated. She refused to submit to a chemical test and her driving record indicates that she was not convicted of any alcohol-related offense.

Nor was her license revoked, notwithstanding her refusal to take the chemical test. Instead, the Motor Vehicle Administration (“MVA”) restricted her driver’s license to employment and educational purposes. ²⁵⁹ This apparently occurred because Earl A. Eyler, the County parks superintendent, wrote a letter to the MVA, dated February 17, 1989, informing it that Taylor needed to have a license to perform her job satisfactorily. Nevertheless, by March 1989, the County discovered that Taylor had accumulated four points on her driving record, due to prior speeding violations. Consequently, her County driving permit was placed on probationary status, and Taylor was warned that she would be terminated if her County driving permit were revoked.

Several years later, on February 2, 1993, Taylor was again arrested for driving while intoxicated and, on May 20, 1993, she was convicted. Pursuant to Md.Code (1977, 1993 Repl.Vol, 1995 Supp.), § 16—402(a) of the Transportation Article (“Transp”), twelve points were assessed on her driving record. Nevertheless, the MVA again allowed Taylor to keep her license, and restricted her driving to employment and educational purposes. See Transp. § 16-405.

During a routine check of driving records on July 20, 1993, the County discovered the points that had been assessed against Taylor’s license as a result of the alcohol offense, and it revoked her County driving permit. But, for reasons that are not apparent from the record, the County continued to retain Taylor as an employee. In February 1994, however, Taylor was ordered to clear the points from her license within ninety days, which she had no authority to do. Consequently, on May 27, 1994, Eyler sent Taylor a letter terminating her employment, effective the following day.

The letter stated, “[t]he ability to drive is essential to satisfactorily perform the job of parks laborer,” and added, “Only a temporary accommodation of this requirement can be made for this position. I have made this temporary accommodation for a reasonable period of time.” Taylor filed for unemployment benefits under L.E., Title 8. A claims examiner concluded that “insufficient evidence has been presented to show any misconduct connected with the work.” The claims examiner thus allowed Taylor’s claim. ²⁶⁰ The County contested this determination and, on July 15, 1994, an evidentiary hearing was conducted before a hearing examiner. The hearing examiner found that, “as a condition of her employment,” Taylor was “required to possess ... the ability to obtain ... a Frederick Employee County Permit.” The hearing examiner also found that the “claimant became aware of the [Cjounty’s regulation that an accumulation of more then [sic] six points on a drivers [sic] record can result in disciplinary action leading to termination of employment.” The hearing examiner further noted that, although the claimant had the “legal right” to drive to and from work, she could not drive a vehicle while at work.

Therefore, the hearing examiner determined that the County “was justified in discharging the claimant for her inability to continue in her work classification for lack of a valid County drivers [sic] permit. ...” Although the hearing examiner concluded that Taylor’s conduct constituted “misconduct connected with employment,” within the meaning of L.E. § 8-1003(a), the hearing examiner rejected any finding of gross misconduct. The hearing examiner said: Accordingly, I cannot find that the claimant’s violation of the employer’s rules concerning driving privileges rises to the level of gross misconduct---- But, clearly, the claimant’s conduct in driving while intoxicated is a matter which is connected with the work, because she knew or should have know [sic] that the accumulation of driving points could result ip termination from employment, and that she would be in violation of the employer’s rules and regulations if such would occur. Taylor was thus denied unemployment benefits for ten weeks. Both Taylor and the County appealed to the Board.

After the Board reviewed the record, it issued an opinion in which it adopted the hearing examiner’s findings of fact, but disagreed with the hearing examiner’s legal conclusion. The Board determined that Taylor’s failure to retain her County driving permit constituted a “constructive voluntary quit” within the ²⁶¹ meaning of L.E. § 8-1001(a). Accordingly, the Board disqualified Taylor from receiving benefits. Taylor then sought judicial review in the circuit court, which held that the evidence was insufficient to support the conclusion that Taylor had voluntarily left her employment.

It thus reversed the Board’s decision, and remanded the case to the Board for a determination of whether Taylor’s actions constituted misconduct under L.E. § 8-1003(a) or gross misconduct under L.E. § 8-1002(a). STANDARD OF REVIEW The standard for our review is established by L.E. § 8-512(d), which states: In a judicial proceeding under this section, findings of fact of the Board of Appeals are conclusive and the jurisdiction of the court is confined to questions of law if: (1) findings of fact are supported by evidence that is competent, material, and substantial in view of the entire record; and (2) there is no fraud. In reviewing the decision of an administrative agency, our review is generally limited to a determination of: (1) whether the agency applied the correct principles of law; and (2) whether the agency’s findings of fact are supported by substantial evidence. See Caucus Distributors, Inc. v. Maryland Securities Commissioner, 320 Md. 313, 323-24 , 577 A.2d 783 (1990); Board of Education of Montgomery County v. Paynter, 303 Md. 22, 35 , 491 A.2d 1186 (1985); Board of School Commissioners of Baltimore City v. James, 96 Md.App. 401, 418-19 , 625 A.2d 361 , cert. denied sub nom.

Davis v. Board of School Commissioners, 332 Md. 381 , 631 A.2d 451 (1993). See generally Anderson v. Department of Public Safety and Correctional Services, 330 Md. 187, 210-13 , 623 A.2d 198 (1993). Our review of the Board’s findings of fact is deferential. In the absence of fraud, our inquiry is whether the ²⁶² findings are supported by substantial evidence and are reasonable, not whether they are right.

Bulluck v. Pelham Wood Apartments, 283 Md. 505, 515 , 390 A.2d 1119 (1978). We examine the agency’s findings of fact to determine whether they are supported by “substantial evidence” in light of the record as a whole—that is, whether a reasoning mind could have made those findings from the evidence adduced. Singletary v. Maryland State Department of Public Safety and Correctional Services, 87 Md.App. 405, 416 , 589 A.2d 1311 (1991). We will not engage in our own fact finding, however.

Board of Trustees of the Employees’ Retirement System of the City of Baltimore v. Novik, 87 Md.App. 308, 312 , 589 A.2d 976 (1991), aff'd, 326 Md. 450 , 605 A.2d 145 (1992). Instead, the tasks of drawing inferences from the evidence and resolving conflicting evidence are exclusively the province of the Board. Prince George’s Doctors’ Hospital, Inc. v. Health Services Cost Review Commission, 302 Md. 193, 200-02 , 486 A.2d 744 (1985). A reviewing court must also take care not to substitute its judgment for the expertise of the Board.

Westinghouse Electric Corp. v. Callahan, 105 Md.App. 25, 34 , 658 A.2d 1112 (1995). In contrast, our review of the Board’s decisions on issues of law is not deferential. Columbia Road Citizens’ Association v. Montgomery County, 98 Md.App. 695, 698 , 635 A.2d 30 (1994). Thus, “the reviewing court may substitute its judgment for that of the agency.” Liberty Nursing Center, Inc. v. Department of Health and Mental Hygiene, 330 Md. 433, 443 , 624 A.2d 941 (1993).

On issues of statutory construction, we will afford substantial deference to an agency’s construction of a statute that it is charged with administering. Westinghouse, 105 Md.App. at 37 , 658 A.2d 1112 . Nevertheless, an administrative agency is not authorized to disregard the terms of a statute when that statute is clear and unambiguous. See Sugarloaf Citizens Association v. Northeast Maryland Waste Disposal Authority, 323 Md. 641 , 663 n. 1, 594 A.2d 1115 (1991); Bosley v. Dorsey, 191 Md. 229, 239 , 60 A.2d 691 (1948); Baines v. Board of Liquor License Commission ²⁶³ ers for Baltimore City, 100 Md.App. 136, 141 , 640 A.2d 232 (1994).

With these principles in mind, we shall analyze the issues presented. DISCUSSION I. The Board disqualified Taylor from receiving benefits pursuant to L.E. § 8-1001(a)(1), which states: “An individual who otherwise is eligible to receive benefits is disqualified from receiving benefits if the Secretary finds that unemployment results from voluntarily leaving work without good cause.” 3 Yet the Board does not contend that Taylor actually “voluntarily [left] work” or quit. Rather, it contends that, based on her conduct, Taylor essentially put the employer in the position of having to terminate her because, without a County driving permit, she no longer met the criteria for employment. Thus, according to the Board, she “constructively” voluntarily left work due to the drunk driving conviction that resulted in the loss of the County driving permit that she needed for her employment.

We begin our analysis with a discussion of the doctrine of constructive voluntary leaving. It is a theory under which an employee who is actually discharged or terminated by the employer is nonetheless deemed to have “constructively” voluntarily quit. 4 Under the doctrine, the employee’s actual intent to terminate the employment is not relevant. The Board apparently first adopted the doctrine in 1984 in Queen ²⁶⁴ v. Maryland Lumber Co., No. 910-BR-84 (November 21, 1984). 5 Later, in Hoffman v. Maryland Car Care, No. 643-BH-93 (April 13, 1993), the Board described the principle as follows: “[W]hen a claimant has failed to abide by a condition of employment (in this case possession of a valid drivers [sic] license) the absence of which leaves the employer absolutely no choice but to terminate the claimant’s services, the claimant has ‘constructively’ voluntarily quit his employment without good cause or valid circumstances.” (Emphasis added). While the states have split on the issue of whether to recognize the doctrine of constructive voluntary leaving, see generally 76 Am.Jur.2d Unemployment Compensation § 107 (1992); 81 C.J.S. Social Security § 225b (1977), the Board’s articulation of the principle of constructive voluntary leaving is similar to the expressions of the doctrine by courts of those states that have recognized it.

In Steinberg v. California Unemployment Insurance Appeals Board, 87 Cal.App.3d 582, 585 , 151 Cal.Rptr. 133, 134-35 (1978), for example, California’s intermediate appellate court said: A claimant is said to have constructively quit his job when, although discharged by the employer, the claimant himself set in motion the chain of events which resulted in the employer’s having no choice except to terminate him. All three of the following elements must be present before it can be said that a claimant has constructively quit his job. 1. The claimant voluntarily committed an act which 2. made it impossible for the employer to utilize his services, and 3. the claimant knew or reasonably should have known the act would jeopardize his job and possibly result in the loss of his employment. 87 Cal.App.3d at 585 , 151 Cal.Rptr. at 134-35 (citation and italics omitted). ²⁶⁵ The issue is one of first impression in Maryland, although the Board asserts that the Court of Appeals “recognized” the doctrine of constructive voluntary leaving in Allen v. Core Target City Youth Program, 275 Md. 69 , 338 A.2d 237 (1975). In that case, the Court construed former Art. 95A, § 6(a), the predecessor to L.E. § 8-1001(a)(1). 6 The Board focuses on the following statement in Allen : [W]e can envision limited circumstances where, although the employee was shown to have been factually and technically discharged, it might be evident that he in fact undertook to terminate the employment relationship and thus be held to have “constructively” voluntarily left his employment.

This is particularly true where an employee is shown to have abandoned his employment by pursuing a course of conduct which resulted in his severance from employment. 275 Md. at 81 , 338 A.2d 237 . This statement is, however, dictum. Indeed, on the next page of its opinion, the Court stated that it was merely assuming the applicability of the doctrine without deciding whether Maryland would recognize it. The Court said: “Assuming that the doctrine of ‘constructive voluntary leaving’ would be applicable under appropriate circumstances, it is self-evident that the facts in this case do not bring it within that doctrine.” Id., 275 Md. at 82-83 , 338 A.2d 237 . 7 ²⁶⁶ Dictum is, of course, worthy of consideration, but it is not binding.

In State v. Wilson, 106 Md.App. 24 , 664 A.2d 1 (1995), Judge Moylan, writing for this Court, stated at the conclusion of an extensive discussion of the differences between dicta and holdings: “[SJtare decisis is ill-served if readers hang slavishly on every casual or hurried word as if it had bubbled from the earth at Delphi. Obiter dicta, if noticed at all, should be taken with a large grain of salt.” Id., 106 Md.App. at 39 , 664 A.2d 1 . Furthermore, any notion that the Allen Court recognized the doctrine of constructive voluntary leaving was put to rest by the Court in Sinai Hospital of Baltimore, Inc. v. Department of Employment and Training; 309 Md. 28 , 522 A.2d 382 (1987). There, the Court expressly stated that the issue was still open.

The Court said: “Whether the doctrine of constructive voluntary leaving is recognized in Maryland has not been decided by this Court.” Id. at 34 , 522 A.2d 382 . This case squarely presents for resolution the question of the viability of the doctrine. There is evidence in the record that Taylor’s County driving permit was a condition of her employment, that the County permit was essential to Taylor’s ability to work, and she lost this permit through her voluntary act of drinking and driving. There was also testimony that Taylor was terminated because, without her driving permit, she was unable to perform the job for which she was hired.

These facts fit within the concept of constructive voluntary leaving as articulated by the Board and the courts of other states. Therefore, we must determine whether the doctrine is encompassed in L.E. § 8-1001(a)(l). In essence, this is an issue of statutory construction.

II

The principles of statutory construction are well settled. The polestar of statutory construction is to ascertain and effectuate the intention of the Legislature. Jones v. State, 336 Md. 255, 260 , 647 A.2d 1204 (1994); Motor Vehicle Administration v. Gaddy, 335 Md. 342, 346 , 643 A.2d 442 ²⁶⁷ (1994). In our inquiry, the primary source for determining that intent is the language of the statute.

In re Douglas P., 333 Md. 387, 392 , 635 A.2d 427 (1994); State v. Patrick A., 312 Md. 482, 487 , 540 A.2d 810 (1988); Comptroller of the Treasury v. Martin G. Imbach Inc., 101 Md.App. 138, 144 , 643 A.2d 513 , cert. denied, 336 Md. 593 , 650 A.2d 239 (1994). We read the statute in a natural and sensible fashion, assigning its words their ordinary and commonly understood meanings. Parrison v. State, 335 Md. 554, 559 , 644 A.2d 537 (1994); NCR Corp. v. Comptroller of the Treasury, 313 Md. 118, 124-25 , 544 A.2d 764 (1988). A litigant who asks us to ignore the plain language of the statute bears an “exceptionally heavy” burden.

Union Bank v. Wolas, 502 U.S. 151, 156 , 112 S.Ct. 527, 530 , 116 L.Ed.2d 514 (1991). That party must show that it is “manifest” that the legislature could not possibly have meant what it said in that language, see State v. Bricker, 321 Md. 86, 92 , 581 A.2d 9 (1990); Privette v. State, 320 Md. 738, 744 , 580 A.2d 188 (1990), or that a natural reading of the statute would lead to an absurd result, see Thanos v. State, 332 Md. 511, 525 , 632 A.2d 768 (1993); In re Special Investigation No. 281, 299 Md. 181, 200 , 473 A.2d 1 (1984). Courts are not “at liberty to gather a legislative intention contrary to the plain words of the statute or to insert words to express an intention not shown in the original form.” Allen, 275 Md. at 77, 338 A.2d 237 , citing Celanese Corp. of America v. Davis, 186 Md. 463 , 47 A.2d 379 (1946). We also read the language of the statute in the context that it appears, considering surrounding statutes, the statutory scheme as a whole, see Outmezguine v. State, 335 Md. 20, 41 , 641 A.2d 870 (1994), and the purpose that the Legislature had in mind in enacting the statute.

Motor Vehicle Administration v. Vermeersch, 331 Md. 188, 194 , 626 A.2d 972 (1993); Tracey v. Tracey, 328 Md. 380, 387 , 614 A.2d 590 (1992). Moreover, “when there is no ambiguity or obscurity in the language of a statute, there is no need to look elsewhere to ascertain the intent of the legislative body.” ²⁶⁸ Montgomery County v. Buckman, 333 Md. 516, 523 , 636 A.2d 448 (1994). Accord Harris v. State, 331 Md. 137, 145-46 , 626 A.2d 946 (1993); Ferguson Trenching Co., Inc. v. Kiehne, 329 Md. 169, 177 , 618 A.2d 735 (1993). In the context of unemployment insurance law, because of its remedial nature, its provisions are liberally construed in favor of eligibility for benefits.

Sinai Hospital of Baltimore, Inc. v. Department of Employment and Training, 309 Md. 28, 40 , 522 A.2d 382 (1987). Consequently, provisions that disqualify claimants from receiving benefits are construed, narrowly. Id; Taylor v. Department of Employment and Training, 308 Md. 468, 472 , 520 A.2d 379 (1987). As we continue our analysis, we shall apply these principles.

III

We turn next to the language of L.E. § 8-1001(a)(1). The provision is relatively straightforward. The statute disqualifies claimants from receiving benefits if their unemployment “results from voluntarily leaving work without good cause.” The plain language of the statute suggests that a claimant is disqualified under its terms only when the employee intentionally terminates his or her employment or affirmatively undertakes or elects to do so. See The American Heritage Dictionary at 762 (1983) (defining “voluntary,” inter alia, as “[a]rising from one’s own free will,” “acting by choice and without constraint or guarantee of reward,” “[n]ot accidental; intentional”).

The question is whether an employee, who is involuntarily discharged by the employer based on the employee’s voluntary act, such as driving while intoxicated, has voluntarily quit his or her employment. Clearly, a discharge is not the same thing as a voluntary quit. See MacFarland v. Unemployment Compensation Board of Review, 158 Pa.Super. 418 , 45 A.2d 423, 425 (1946). Two decisions of the Court of Appeals support a plain meaning approach to L.E. § 8-1001(a)(1): Allen v. Core Target City Youth Program, supra, 275 Md. 69 , 338 A.2d 237 ²⁶⁹ which, as we have noted, construed the predecessor to L.E. § 8-1001(a)(1), and Wills v. Jones, 340 Md. 480 , 667 A.2d 331 (1995), which used Allen to construe the term “voluntarily impoverished” in Maryland’s child support law, Md.Code Ann., Fam.Law §§ 12-201(b)(2) & 12-204(b) (1991 & Supp.1995).

In Allen , the Court held that a teacher who was discharged after she “contumaciously” refused to prepare for courses that she had undertaken to teach had not “voluntarily” left work. The Court recognized that “[t]he term ‘leaving work voluntarily’ is not anywhere defined in the statute and absent some imperative reason for enlarging its meaning the term ‘should be construed as having its ordinary and commonly-accepted meaning.’ ” Id., 275 Md. at 77 , 338 A.2d 237 , quoting Scoville Service, Inc. v. Comptroller, 269 Md. 390, 395 , 306 A.2d 534 (1973). It determined that the “phrase ‘leaving work voluntarily’ cannot by construction be extended so as to make it applicable to any case which is not shown to be clearly within the contemplation of the Legislature.” Allen, 275 Md. at 78 , 338 A.2d 237 (emphasis supplied). The Court also considered dictionary definitions of the word “voluntary”: “1.

Proceeding from the will, or from one’s own choice or full consent; produced in or by an act of choice; ... 2. Unconstrained by interference; unimpelled by another’s influence; spontaneous; acting of oneself; free ... 3.a. Done by design or intention; intentional; purposed; intended, not accidental ... b. Made or given of one’s one free will; ____” [Webster’s New International Dictionary of the English Language at 2858 (2d ed. 1944) ] “[djone by design or intention, intentional, purposed, intended, or not accidental ...

Intentionally and without coercion” [Black’s Law Dictionary at 1746 (Rev. 4th ed. 1968) ] 4; 4; 4< 4s 4: 4: “of one’s own free will” [Webster’s Seventh New Collegiate Dictionary at 998 (1967) ] Id., 275 Md. at 78 , 338 A.2d 237 . After a brief discussion of the case law from this and other jurisdictions, the Court concluded: ²⁷⁰ As we see it, the phrase “due to leaving work voluntarily” ... has a plain, definite and sensible meaning, free of ambiguity; it expresses a clear legislative intent that to disqualify a claimant from benefits the evidence must establish that the claimant, by his or her own choice, intentionally, of his or her own free will, terminated the employment. If an employee is discharged for any reason, other than perhaps for the commission of an act which the employee knowingly intended to result in his discharge, it cannot be said that his or her unemployment was due to “leaving work voluntarily. ” ****** In this case the record does not establish that the claimant of her own volition and from her own choice undertook to terminate her services. Although it certainly cannot be challenged that her conduct precipitated her severance, based upon the factual findings that she contumaciously refused to prepare herself to perform the duties she had undertaken, the record clearly demonstrates that the employer was the party who elected to and did, in fact, terminate the relationship when she was discharged.

She did not quit or otherwise “voluntarily” leave. In view of the plain meaning of the statutory language, and the clear intention of the Legislature, we cannot conclude, as a matter of law, upon the factual findings made by the referee, as adopted and affirmed by the Board, that the appellant’s unemployment was “due to [her] leaving work voluntarily, without good cause.” We hold-that the factual circumstances resulting in her termination did not bring her case within the provisions of Art. 95A, § 6(a). To construe the statute otherwise would render the distinction maintained by the Legislature between unemployment due to “leaving work voluntarily” and unemployment resulting from discharge as completely meaningless and the Legislature, in our view, did not intend such a result. Id., Id., 275 Md. at 79-80 , 338 A.2d 237 (emphasis added).

The Court of Appeals’s recent decision of Wills v. Jones, supra, is also instructive. There, the Court construed the ²⁷¹ term “voluntarily impoverished” in Maryland’s child support law, Md.Code Ann., Fam.Law §§ 12-201(b)(2) & 12-204(b) (1991 & Supp.1995). In interpreting the word “voluntarily,” the Court discussed Allen at length and stated, “Our inquiry here is similar to that made in the unemployment context.” Wills, 340 Md. at 496 , 667 A.2d 331 . The Court held in Wills that a father who was incarcerated was not “voluntarily impoverished” unless he committed the crime with the intent of going to prison to become impoverished.

Id., 340 Md. at 497 , 667 A.2d 331 . It is salient that, in Wills , the Court distinguished the intent to become impoverished from the intent to commit the act that necessarily resulted in impoverishment. Thus, the Court rejected the mother’s claim that the father had voluntarily impoverished himself because he purposely committed a criminal act that resulted in his impoverishment: “The contention that Jones’s incarceration and subsequent impoverishment should be considered ‘voluntary’ because he made the free and conscious choice to commit a crime stretches the meaning of the word beyond its acceptable boundaries. Jones’s incarceration can only be said to be ‘voluntary’ if it was an intended result.” Id., 340 Md. at 496 , 667 A.2d 331 .

The Board attempts to rely on a