Department of Health and Mental Hygiene v. Shrieves

MOTZ, Judge. The Secretary of Personnel’s designee (SOPD) determined that a state employee should be terminated from his employment because he engaged in improper sexual harassment. The Circuit Court for Howard County reversed and ordered that the employee be reinstated with back pay. This appeal involves the issue of whether the circuit court was correct in finding that the SOPD’s order was “unsupported by substantial evidence” because it did not “adequately state her reasons for disagreeing with the ... decision” of an Administrative Law Judge (ALJ).

(i) On December 10, 1991, the employee, appellee Carl M. Shrieves, was suspended pending the filing of charges for removal from his security attendant position at the Clifton T. Perkins Hospital Center (Perkins), a facility of appellant, the Department of Health and Mental Hygiene (DHMH). Mr. Shrieves was charged with violations of certain personnel department rules and Standard Procedure D-31 (Sexual Harassment Policy) arising from an incident on November 13, 1991. Mr. Shrieves appealed to the Office of Administrative Hearings (OAH) and a hearing was held before an ALJ in February and March 1992. Twenty-four witnesses testified before the ALJ and numerous exhibits were presented; the transcript of the hearing consumes 1158 pages.

The proposed decision of the ALJ is twenty-nine pages and includes eighty-five separately numbered factual findings. The ALJ’s num ²⁸⁶ bered factual findings are excerpted and summarized below; quotation marks indicate the ALJ’s words, not those of the witnesses. At the time of the ALJ hearing, Mr. Shrieves had been employed at Perkins for seventeen years. Among his job responsibilities were training officer, Agency Technical Representative (training employees on the State drug testing policy) and photographer for employee identification cards.

On November 13, he took the photograph of Kristen M. Shavatt, a twenty-two year old telephone operator, who had been employed at Perkins for two years at the time of the ALJ hearing. The photograph was taken in the “photo identification room.” That room, which is audio-monitored, is located in Perkins’ maximum security section and so must be kept locked at all times; Ms. Shavatt did not have a key to the room, but Mr. Shrieves did. Because Ms. Shavatt did not like her first photograph, she requested it be retaken and so was the last person in the locked photo identification room with Mr. Shrieves. Ms. Shavatt testified at the hearing that during the photography session Mr. Shrieves made “unwanted sexual advances.” He told her “he wanted to take her out and make love to her.” When she tried to leave the locked photo identification room, she stated that Mr. Shrieves “would not let her out unless she kissed him.” Finally, when “she raised her voice and told Mr. Shrieves to let her out, he did so.” In a written statement, made for the police the day following the incident, November 14, 1991, Ms. Shavatt similarly stated that Mr. Shrieves told her during the photography session that he wanted “to spend time with her alone.” She walked away “over to the door” and said “come on let’s go.” Mr. Shrieves then “went over to her and said he would not let her go unless she kissed him.

Ms. Shavatt stated that she quickly pushed him away and yelled that he had better let her out and to open the door.” In a criminal complaint filed by ²⁸⁷ Ms. Shavatt shortly after the incident, 1 she related a very similar story. In it “Ms. Shavatt stated that Mr. Shrieves told her he was hoping that they would spend some time together alone and that he wanted to make love to her. After trying to get Mr. Shrieves to hurry and finish the photos, Ms. Shavatt stated that he then snapped her picture. He pulled out the picture and stated that he wanted to take her out for a couple drinks after work.

Ms. Shavatt stated that she walked over to the door and turned the knob to let Mr. Shrieves know she was ready to leave. According to Ms. Shavatt, Mr. Shrieves finally walked over to the door and told her she would have to kiss him if she wanted to get out. Ms. Shavatt stated that Mr. Shrieves got very close, then she pushed him away, and yelled to let her out.” “In his testimony, Mr. Shrieves denied Ms. Shavatt’s account of the incident. He stated that after taking her picture, she was dissatisfied with it and asked him several times to retake it.

In order to get her to smile, Mr. Shrieves joked with her about puckering her lips for a kiss. He denied telling Ms. Shavatt that she would have to kiss him if she wanted to be let out of the room. Mr. Shrieves testified that before he finishes his work, equipment is cleaned up. While he was cleaning up, Ms. Shavatt became impatient and asked to leave.

He stated that he did not open the door immediately because of the need to clean up and because he could not let her leave the room unescorted since it was a maximum security area. When Ms. Shavatt elevated her voice and said let me out of here, Mr. Shrieves stated that he told her to stop being silly and that people would hear her.” In a written statement dated November 20, 1991, Mr. Shrieves “denied touching Ms. Shavatt or engaging in any improper or unprofessional conduct.” State Trooper P.A. Jameson, who testified at the hearing, interviewed both Ms. Shavatt and Mr. Shrieves shortly after the incident. “According to Trooper Jameson, Ms. Shavatt ²⁸⁸ stated that she had one picture taken and left the room to get another form. When she returned, she was the last person in the room. Ms. Shavatt did not like her first picture and asked for another.

When she was finished and ready to leave, Ms. Shavatt stated that Mr. Shrieves came toward her and stated that he wanted to spend time with her alone. Ms. Shavatt walked away and stood by the door, but could not leave because it was locked. Mr. Shrieves then approached her again and stated that she could not leave until she gave him a kiss. Ms. Shavatt stated that she pushed Mr. Shrieves away and screamed that she wanted to be let out of the room.

According to the report, Ms. Shavatt then stated that Mr. Shrieves opened the door.” “Trooper Jameson’s account of his interview with Mr. Shrieves was recorded in a question and answer format. Mr. Shrieves was asked 15 specific questions about various aspects of the incident and his relationship with Ms. Shavatt. His report states in pertinent part: Question # 4: Did you make any statements that you would consider inappropriate to Kristen while both of you were in the photo lab? Answer # 4: Mr. Shrieves stated that he jokes around a lot and may have said something suggestive. “I may have said I love you”, however, I say this to many people just being playful.

Kristen had finished her picture and wanted another re-taken that is why she was the last to leave. She couldn’t leave because I had the key and was cleaning up. Question # 6: Did you make the statement that Kristen could not leave unless she gave you a kiss? Answer # 5: [sic] Mr. Shrieves stated that I may have said “If you don’t confess that you love me I won’t let you leave.” I made this comment to make Kristen laugh while I was taking her picture.

Question #11: Did you approach Kristen in a threatening manner? ²⁸⁹ Answer #11: Mr. Shrieves stated, “I did approach her and she only pushed me away after she disliked the picture I had taken. If you are asking whether any contact was made, at some point, yes, but it happens with a lot of employees.” Question # 13: Did you ever ask for a kiss from Kristen while in the photo room? Answer # 13: Mr. Shrieves stated, “I may have asked her for a kiss, I get along with a lot of people, I don’t keep count of what I say. I wouldn’t say anything different to anyone.” “With respect to the police report, Mr. Shrieves admitted that part of the report was accurate, but contended that some of the statements attributed to him were taken out of context.

Further, while Mr. Shrieves admitted to asking Ms. Shavatt for a kiss, he stated that he told the officer he did so jokingly. Mention is made of this claim in the police report.” In addition to the evidence as to the November 13 incident, there was also conflicting testimony by Ms. Shavatt and Mr. Shrieves as to their prior communications. For example, “[ajccording to Ms. Shavatt, when Mr. Shrieves saw her, he would put his arm around her and make ‘crazy’ conversation. Further, Ms. Shavatt stated that Mr. Shrieves would ask her out after work for drinks a couple of times a week....

Ms. Shavatt stated that Mr. Shrieves told her that he would get an apartment so that they could live together.” On the other hand, “Mr. Shrieves denied asking Ms. Shavatt for a date, or to live with him. He stated that he would not ask her for a date due to the age differences between them and that he did not view their friendship in that manner. Further, Mr. Shrieves stated that he is married and would not have asked her to live with him. Mr. Shrieves further testified that he does not drink.” When Ms. Shavatt returned to her work station on November 13, she encountered her supervisor, Gwendolyn Joyner.

Ms. Joyner testified, that Ms. Shavatt did not seem upset and did not mention any sexual harassment, only that her identifi ²⁹⁰ cation picture was ugly. Another employee who had been in the room with Ms. Shavatt and Mr. Shrieves prior to the incident, Ursula Carter, testified that Mr. Shrieves had joked with both of them in order to make them smile. Moreover, there was testimony from a number of other Perkins employees that Mr. Shrieves often joked in this manner and that no one took any offense; in addition, a number of witnesses testified to Mr. Shrieves’s good character. There was, however, testimony from some other witnesses that Mr. Shrieves had made inappropriate remarks to them and other employees. “After reviewing the police report, the [Perkins] Committee [established to review this matter] decided, based on the report, that Mr. Shrieves had committed the alleged offense of sexual harassment.” One member of the Committee “testified that prior to the receipt of the report, a case had not been established against Mr. Shrieves because it was Ms. Shavatt’s word against his.

After review of the report, [that member] testified that she concluded that Mr. Shrieves was guilty of the alleged offense because he had made an admission of guilt. [Dr.] Sasscer-Burgos [the Chair of the Committee] similarly testified that she concluded, based on the report, that Mr. Shrieves had admitted to guilt. On the other hand, [still another member] testified that the report did not provide a basis for finding that Mr. Shrieves had committed sexual harassment of Ms. Shavatt.” “Dr. Sasscer-Burgos testified that the committee recommended that Mr. Shrieves be suspended pending termination because it believed the incident to be of such a serious nature as to warrant dismissal. In reaching this decision, Dr. Sasscer-Burgos testified that the committee took into account the facts that the incident involved a young girl, that Mr. Shrieves was a training officer who was familiar with the sexual harassment policy, that Mr. Shrieves was an older, long-term employee and that he had the keys to the room while the employee did not. Further, Dr. Sasscer-Burgos testified that the committee considered the fact that Mr. Shrieves was in a ²⁹¹ security position and could potentially affect anyone’s job because of the drug testing.” “Dr. Sasscer-Burgos further stated that the incident, itself, was sufficient to warrant dismissal, but that other evidence was also considered.

Specifically, the committee considered a complaint of sexual harassment filed by another employee, a Ms. Helbig. . Although this complaint was settled prior to adjudication, Ms. Sasscer-Burgos testified that she believed that Mr. Shrieves had committed the alleged acts of sexual harassment. Dr. Sasscer-Burgos also testified that the committee considered other instances of sexual harassment engaged in by Mr. Shrieves. Dr. Sasscer-Burgos described to the committee her own experiences.

She stated that Mr. Shrieves had a habit of standing too close to her. Dr. Sasscer-Burgos further testified that students mentioned to her that Mr. Shrieves joked with them in ways that made them uncomfortable. Dr. Sasscer-Burgos could not recall the jokes, but conceded that they were not of a sexual nature. She also stated that Mr. Shrieves had a reputation of being overly familiar with female employees.” The Acting Superintendent of Perkins, Dr. Christiane Tellefsen, was responsible for making the final decision regarding disciplinary action against Mr. Shrieves.

In making her decision, Dr. Tellefsen “considered the nature of the incident, the position of authority of Mr. Shrieves, his history of prior behavior, including the Helbig case, and [his] training position.” Dr. Tellefsen testified “that she assumed the Helbig case was settled because the Hospital was unable to defend the charge.... Dr. Tellefsen also based her decision on the police report” in which she believed Mr. Shrieves “said he may have done the things of which he was accused.” After recounting these facts, the ALJ discussed her conclusions. She noted that although “Management” had filed charges for removal based on Mr. Shrieves’s unsatisfactory attendance record and his asserted sexual harassment of a female co-worker, the “main, if not sole” reason for his discharge was the sexual harassment charge; no party disputes ²⁹² that conclusion. The ALJ then examined the COMAR regulations and Sexual Harassment Policy that Mr. Shrieves was charged with violating.

The ALJ appears, sub silentio, to have concluded that a violation of the COMAR regulations could only have been found if the policy had been violated; again, no party challenges this conclusion. The sexual harassment policy provides in pertinent part: Every employee shall refrain from such conduct as sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature which may constitute sexual harassment. Sexual harassment is defined to include, but is not limited to: (1) Unwelcomed sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature. (2) Discrimination is based on sex that results in economic or privilege loss to the employee.

(3) Infringement of any employee’s right to work in an environment free from unwanted sexual attention and sexual pressure of any kind that creates a hostile or offensive working environment. (4) Unwelcomed sexual remarks or unwelcomed sexual actions against a fellow employee or applicant for employment while on the work site or during working hours. These prohibited unwelcomed remarks or actions may be, but are not limited to, the following: 1. Lewd remarks, catcalls, whistles, or obscene reference to an employee’s anatomy. 2.

Unwanted physical advances or contact by one employee to another. 3. Requests for acquiescence in sexual acts by one employee to another. 4. Repeated propositions for dates by one employee to another. ²⁹³ The ALJ concluded that Perkins “failed to show, by a preponderance of the evidence, that Mr. Shrieves committed the offense of sexual harassment in violation of” this policy, and that Mr. Shrieves’s conduct, although perhaps inappropriate, did not constitute sexual harassment. Noting that there were no eyewitnesses to the incident, the ALJ found “Mr. Shrieves’ls] account of the incident credible.” According to the ALJ, Mr. Shrieves’s credibility was bolstered by several factors.

The ALJ noted that Mr. Shrieves had a reputation for joking “and has made the same kinds of comments ... to other employees” and so, although his “behavior may seem unusual, it would not have been out of character.” The ALJ found Mr. Shrieves’s credibility “further demonstrated” by testimony of Ms. Carter, whom the ALJ found “to be credible,” that Mr. Shrieves had been joking with her and Ms. Shavatt in the photo-identification room prior to the incident. This testimony, the ALJ stated, was “not only consistent with Mr. Shrieves[’sJ account, but ... at odds with the claimed acts of harassment.” The ALJ concluded that Ms. Joyner’s testimony that Ms. Shavatt “made no complaints ... and showed no signs of discomfort or stress” after the incident added further “credence to Mr. Shrieves’[s] account.” The ALJ noted that the room where the incident took place was “audio-monitored and that Mr. Shrieves knew that this was the case”; she believed it “unlikely that he would have engaged in the claimed conduct knowing” this. The ALJ concluded that Ms. Shavatt’s other charges, e.g., that Mr. Shrieves asked her out for drinks and to live with him, were contradicted by Mr. Shrieves’s “unrebutted testimony” to the contrary, and this was “further supportive of Mr. Shrieves’ account.” In addition, the ALJ “was impressed with testimony of [Mr. Shrieves’s] numerous character witnesses.” The ALJ rejected Perkins’s contention that Mr. Shrieves’ “made an admission of guilt in the police report prepared by Officer Jameson.” She was “troubled by Management’s reliance on this report since it was based on unrecorded interviews and did not contain verbatim transcripts of the interviews.” She concluded, in any event, that “review of the ²⁹⁴ report discloses no admission of guilt on the part of Mr. Shrieves.” Thus, the ALJ found “no basis for concluding that Mr. Shrieves committed the alleged offense on the basis of an admission of guilt.” Finally, the ALJ determined that Perkins’s introduction of evidence of Mr. Shrieves’s improper conduct and comments toward other employees was unpersuasive. She concluded that the evidence failed to demonstrate “unwelcome sexual advances” as opposed to mere “joking.” With regard to the Helbig complaint, she noted that it had “some relevance,” but that its filing did not “prove Mr. Shrieves committed the offense charged,” and that he was never “disciplined” as a result of the Helbig complaint.

The DHMH filed exceptions to the ALJ’s proposed decision with the SOPD. After hearing oral argument, and considering the record, 2 the SOPD issued her own thirty page order. The SOPD rephrased, reordered, and renumbered the ALJ’s factual findings, which we have summarized above, however, the SOPD adopted the substance of each of the ALJ’s numbered findings in the SOPD’s own findings. The SOPD also made several additional factual findings.

She found, “Ms. Shavatt was reluctant to report th[e] incident at the agency because of Mr. Shrieves’[s] position with the Security Department and his friendship with Ms. Joyner.” The SOPD found the following additional portions of Trooper Jameson’s report were also “pertinent”: Question # 6: At any time did you approach Kristen in the photo lab in a manner in which she would find threatening and at any time did she scream? Answer # 6: I may have walked toward her at some time. ²⁹⁵ Question # 7: Did she start to scream? Answer # 7: Mr. Shrieves stated that Kristen started yelling let me out of this door. She yelled that.

I think she was pretending that she was being held hostage. I told her to be quiet there are people all around us. I did not want anyone to think something was going on. Some people were walking by the door but I don’t know who.

I don’t think Kristen had ever been in a maximum security section before. I think she got scared. Question # 8: Did there ever come a time when you walked toward Kristen and she pushed you away? Answer #8: She only pushed me in a playing manner because she didn’t like the picture I took.

Question # 9: Did she ever push you away from her? Answer # 9: Mr. Shrieves stated that even if she did I wouldn’t find it significant. At times she has thrown things at me in a playful manner. Mr. Shrieves then stated that he believes Kristen is dating Aaron Barnett another security attendant.

Question # 15: What exactly again did Kristen scream while she was at the door? Answer # 15: I think it was a playful holler there was no physical contact. “I play around a lot, I go to the radio room, I sit on the other operator’s lap and always hug her. Kristen can tell you that. I wouldn’t put my hands on a twenty year old girl.” Finally, the SOPD found, “Trooper Jameson testified that Mr. Shrieves’fs] exact words are enclosed in quotation marks in his report.” The SOPD “conclude[d] that the agency had met its required burden of establishing that Mr. Shrieves violated COMAR .47D, E and M, as well as the agency’s policy on sexual harassment.” (ii) Mr. Shrieves appealed to the Circuit Court for Howard County, which reversed the order of the SOPD.

The circuit court recognized that the “substantial evidence” test was ²⁹⁶ applicable in this administrative appeal. See, e.g., Bulluck v. Pelham Wood Apartments, 283 Md. 505, 512 , 390 A.2d 1119 (1978). Relying on Anderson v. Department of Pub. Safety & Correctional Servs., 330 Md. 187 , 623 A.2d 198 (1993), the circuit court found, however, that its “job” was “to determine if the ALJ had a rational basis for making the decision she did,” i.e., if there was substantial evidence to support the ALJ’s decision.

The lower court concluded that “the decision of the ALJ was based on substantial evidence.” The court explained that the ALJ was in the best position to judge the credibility of the witnesses, which was “the cornerstone of the case,” and that Anderson permitted the SOPD “to reject credibility assessments only if [she] gives strong reasons for doing so.” See Anderson, 330 Md. at 217 , 623 A.2d 198 (quoting Charles H. Koch, Administrative Law and Practice, § 6.73 at 522 (1985)). Because the circuit court concluded that the SOPD “did not adequately state her reasons for disagreeing with the ALJ’s decision,” it found that the SOPD’s decision was “unsupported by substantial evidence.” For this reason, the circuit court ordered that Mr. Shrieves “be reinstated to his position as a Security Attendant” and awarded “back pay and any lost benefits.” The circuit court is to be commended on its careful consideration of and obvious attempt to follow Anderson . Unfortunately, however, the lower court misunderstood the foundation of the Anderson opinion. Although Anderson focused on the relationship between the ALJ’s recommendation and the final agency order, Anderson did not set forth a new standard for judicial review of administrative decisions involving ALJ recommendations, as the circuit court apparently believed.

Thus, Anderson does not direct that when an agency rejects an ALJ’s recommendation—even one based on credibility determinations—a reviewing court is to reverse the agency if the ALJ’s recommendation “was based on substantial evidence.” Rather, in Anderson the Court of Appeals carefully reiterated the longstanding substantial evidence standard: it is the final order of the administrative agency that is subjected to deferential judicial review. Anderson, 330 Md. at 215 , 623 ²⁹⁷ A.2d 198. Only if that order is not based on substantial evidence can it be reversed by a court. Id.

Thus, the Anderson court expressly held that the creation of the Office of Administrative Hearings, with its core of ALJs, did not change the well established common law “standard for judicial review.” Id. at 214, 623 A.2d 198 . Relying on Justice Frankfurter’s famous explication of this issue in Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 (1951), the Court of Appeals noted the “ ‘substantial evidence’ standard is not modified in any way when the [agency] and its examiner disagree.” Anderson, 330 Md. at 215-16 , 623 A.2d 198 (quoting Universal Camera, 340 U.S. at 496 , 71 S.Ct. at 468-69 ) (alteration in original). The court below erred in viewing its “job” as “determining] if the ALJ had a rational basis for making the decision she did” or if the ALJ’s decision was supported by substantial evidence. The court’s “job” was not to assess the “rationality” of or evidentiary basis lor the ALJ’s recommendation; it was to assess the rationality or evidentiary basis of the agency’s—here the SOPD’s—final order.

See Parker for Lamon v. Sullivan, 891 F.2d 185, 189 (7th Cir.1989) (a court “does not review the decision of the ALJ but rather the decision of the” agency); Drexel Burnham Lambert, Inc. v. Commodity Futures Trading Comm’n, 850 F.2d 742, 747 (D.C.Cir.1988) (when the agency and an “ALJ disagree on factual inferences to be drawn from the record ... the question to be decided is not whether the agency has ‘erred’ in ‘overruling’ the ALJ’s findings, but whether its own findings are reasonably supported on the entire record”) (emphasis in original). It is, of course, true that the central teaching of Anderson and Universal Camera is that when making this assessment a court should recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the [agency’s] than when he has ²⁹⁸ reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. Anderson, 330 Md. at 216 , 623 A.2d 198 (quoting Universal Camera, 340 U.S. at 496 , 71 S.Ct. at 468-69 ) (alteration in original).

When “assessing the credibility of the witnesses ... the agency should give appropriate deference to the opportunity of the examiner to observe the demeanor of the witnesses,” and the agency should reject credibility assessments only if it gives “strong reasons.” Id. at 216-17, 623 A.2d 198 . See, e.g., Chirino v. National Transp. Safety Bd., 849 F.2d 1525, 1530 (D.C.Cir.1988) (agency’s determination that witness was “inherently incredible” when “adequately buttressed by the record” was a “compelling reason” to overturn ALJ’s credibility determination). Nevertheless, because the “responsibility for the final decision [is] placed on the agency,” not the ALJ, it is “wholly inconsistent with this notion that the [agency] has power to reverse an examiner’s findings only when they are clearly erroneous.” Anderson, 330 Md. at 215 , 623 A.2d 198 (quoting Universal Camera, 340 U.S. at 492 , 71 S.Ct. at 466-67 ).

Indeed, only a few years after Universal Camera, the Supreme Court held that a lower court erred in concluding that an examiner’s findings “based on demeanor of a witness are not to be overruled” by an agency “without a ‘very substantial preponderance in the testimony as recorded.’ ” See Federal Communications Comm’n v. Allentown Broadcasting Corp., 349 U.S. 358, 364 , 75 S.Ct. 855, 859 , 99 L.Ed. 1147 (1955). What deference then is an agency to give to the various findings of the ALJ? Anderson and Universal Camera teach that all of the ALJ’s findings “are to be considered” by the agency. Anderson, 330 Md. at 216 , 623 A.2d 198 (quoting Universal Camera, 340 U.S. at 496 , 71 S.Ct. at 468-69 ).

Generally, the ALJ’s findings, however, “are not entitled to any special deference from the agency except insofar as [they] are based on witness credibility determinations.” Mattes v. United States,