Department of Public Safety & Correctional Services v. Neal

⁴⁹⁹ DEBORAH S. EYLER, Judge. Audrey Neal, the pro se appellee, was automatically terminated from her employment by the Department of Public Safety and Correctional Services (“Department”), the appellant, as a Correctional Dietary Officer II, at the Maryland Correctional Institution for Women (“MCIW”) in Jessup. The termination followed an incident in which Neal placed her hands around the throat of an inmate. The termination was approved by the Secretary of the Department.

Neal appealed to the Secretary of the Department of Budget and Management (“DBM”), who referred the matter to the Office of Administrative Hearings (“OAH”) for a contested case hearing before an Administrative Law Judge (“ALJ”). The ALJ issued a written decision rescinding the termination, reinstating Neal, and imposing a 30-day suspension without pay. The ALJ’s decision was the final decision of the DBM. In the Circuit Court for Anne Arundel County, the Department brought an action for judicial review of the final agency decision.

The court entered a judgment affirming the ALJ’s decision. On appeal, the Department presents two questions for review, which we have rephrased: I. Did the circuit court err by allowing Neal to participate in the action for judicial review proceeding?

II

Did the ALJ improperly substitute her judgment for that of Neal’s appointing authority by changing the discipline imposed by the appointing authority? For the following reasons, we shall affirm the judgment of the circuit court. FACTS AND PROCEEDINGS On October 5, 2002, in the mid-morning, Neal and four inmates, including Kelly Ramsburg, were preparing meal trays in a small area in the MCIW dining room. As Rams-burg was working, she bumped into Neal several times.

Neal told Ramsburg to slow down and be more careful. Ramsburg ⁵⁰⁰ apologized, but kept bumping into Neal, giggling each time. After several such bumping incidents, Neal put her hands around Ramsburg’s neck, in a choking gesture, and said words to the effect of, “If I choked you, would you think it was funny or an accident?” Neal’s choking gesture was seen by another inmate, Fannie Penn, who was standing about 100 feet away. Later that morning, Penn went to speak to Lieutenant Deborah Warren about another matter.

In the course of that meeting, Penn told Lt. Warren that she had witnessed Neal put her hands around Ramsburg’s neck, in a choking manner. Ramsburg then came into Lt. Warren’s office and told her about the incident.

Lt. Warren approached Neal and asked her about the incident, but Neal would not discuss it. Lt. Warren immediately reported the incident to Captain Jacqueline Craig, the day shift supervisor.

Lt. Warren made a written report of the information she had been given. Capt. Craig met with Ramsburg and questioned her about the incident.

Ramsburg said that Neal had been “playing around” and had put her hands on her and attempted to choke in. a “joking manner.” Ramsburg had “laughed off’ the gesture^ and did not take it to mean that Neal intended her any harm. The choking gesture did not cause Ramsburg any harm. Capt. Craig inspected Ramsburg’s neck and did not see any bruises or marks.

She also took photographs of Ramsburg’s neck, and sent her to the infirmary for a medical check, to be “on the safe side.” Capt. Craig directed Rams-burg to write a statement about the incident, which she did. Capt. Craig spoke to Penn, who repeated that she had seen Neal place her hands around Ramsburg’s throat.

From her position, Penn could not see the expression on Neal’s face, and her view of Ramsburg was partially blocked. She thought Ramsburg looked surprised, however. Penn also gave a written statement about the incident. Capt.

Craig interviewed Neal, who was cooperative. Neal acknowledged that, after Ramsburg bumped into her several times and giggled, she put her hands on Ramsburg’s throat. ⁵⁰¹ At Capt. Craig’s request, Neal prepared a written report of the incident, which was several pages long. She wrote that she had placed her hands near Ramsburg’s throat, in a “choking motion,” and had said, “[I]f I choked you would you think it was funny or an accident?” Neal further wrote that she did not apply any pressure to Ramsburg’s neck, even though she did touch her neck.

Nurse Campbell examined Ramsburg and did not find any bruises or marks. She prepared a brief report. 1 That same day, Capt. Craig prepared a memorandum to Chief Marcia Fair about the “alleged choking incident.” She recounted what had been reported to Lt. Warren by Penn and Ramsburg and what Neal had told her had happened.

Capt. Craig stated, In conclusion, I find that Sgt Neal may not have acted in a hostile or malicious manner when she placed her hands on or near the throat of inmate Kelly Ramsburg. Both inmate Ramsburg and Sgt Neal’s written statement are consistent in that regard! 1, however Neal’s own statement clearly indicates that she acted in a very extreme, unprofessional and unruly manner. I also find that Sgt Neal was very negligent in controlling inmate Ramsburg.

Sgt Neal contributed to inmate Ramsburg’s disruptive, negative and escalating behavior by failing miserably to take the appropriate disciplinary action. The reports and statements about the incident were forwarded to Marsha Maloff, Warden of MCIW. Warden Maloff has been employed by the Department for over 30 years, and has been in a management position since 1979. At the time of the incident, she had been warden of MCIW for three and one-half years.

Warden Maloff was not familiar with Neal, because Neal only had started working at MCIW on August 7, 2002, about two months before the incident. Warden Maloff considered the incident to be “a serious violation of standards that the ⁵⁰² Standards call for termination of employment,” and therefore obtained Neal’s personnel records from the Maryland House of Corrections (“MHC”), where Neal had worked before starting at MCIW, and from Patuxent Institution (“Patuxent”), where she had worked prior to then, to review her disciplinary history. Warden Maloff prepared a report, on October 17, 2002, detailing the contents of Neal’s personnel record. The records showed an employment start date in 1999, as a Correctional Dietary Officer II, at Patuxent. 2 In March 2002, Neal was promoted to Correctional Dietary Supervisor at MHC.

She was then rejected from that position during the probationary period, and demoted to her former position. Because there was no opening for a Correctional Dietary Officer II at MHC, Neal was transferred to MCIW, where there was such an opening. In addition to the rejection on probation, Neal’s record showed, for the period of 12 months prior to October 5, 2002, the following: • 6/20/02 at MHC: Level I reprimand for Personal Conduct, Performance of Duty and Insubordination. • 6/16/02 at MHC: Level I reprimand for Gross Lateness and Unscheduled Leave. • 6/13/02 at MHC: Counseling for Insubordination and Performance of Duty. • 6/11/02 at MHC: Counseling for Performance of Duty. • 1/11/02 at Patuxent: Level II reprimand for Unprofessional Conduct and Use of Profanity. The record also showed that, before January 2002, Neal had been disciplined for five infractions at Patuxent, from March 27, 2001, to August 14, 2001, including a Level I reprimand, two Level II reprimands, a one-day suspension for gross ⁵⁰³ lateness, and a forfeiture of 5 days annual leave in lieu of suspension.

Warden Maloff found Neal’s disciplinary history “appalling” and concluded that Neal “should have never been promoted and should have been fired at least 1 year ago.” On October 18, 2002, Warden Maloff held a mitigation conference with Neal, to give her the opportunity to explain her conduct on October 5. According to Warden Maloff, Neal admitted having touched Ramsburg’s neck and that she had not been trained to address inmate behavior problems in such a fashion. At the conclusion of the conference, Warden Maloff announced that she was going to recommend to the Department Secretary that Neal be terminated. That day, Warden Maloff issued a Notice of Termination (“Notice”), discharging Neal effective October 31, 2002.

The Notice alleged that Neal was subject to automatic termination, under Md.Code (1997 RepLYol.), subsections 11-105(l)(iii) and (8) of the State Personnel and Pensions Article (“SPP”), which provide: The following actions are causes for automatic termination of employment: (l)intentional conduct, without justification, that ... (iii) seriously threatens the safety of the workplace. (8) wantonly careless conduct or unwarrantable excessive force in the treatment or care of an individual who is a client, patient, prisoner, or any other individual who is in the care or custody of this State. It further alleged that Neal had violated Code of Maryland Regulations (“COMAR”) section 17.04.05.04 (Disciplinary Actions Relating to Employee Misconduct), promulgated under SPP Title 11, by: 1) negligently performing her duties; 2) engaging in conduct that if publicized would bring the State into disrepute; and 3) being unjustifiably offensive in her conduct toward fellow employees, wards of the State, or the public. ⁵⁰⁴ The Notice went on to state that Neal had violated several Department standards included in the “Standards of Conduct and Internal Administrative Disciplinary Process” (“Standards”): 1) conduct unbecoming an employee of the Department (Standard II.B.1); 2) unprofessional working relationship with coworkers, supervisors, or subordinates (Standard II.B.2); 3) offensive conduct toward other employees, inmates, supervisors, offenders, clients, or members of the public (Standard II.B.3); and 4) use of physical force upon an inmate except in self-defense, in defense of others, or to prevent escape, serious disturbance, or to control an unruly inmate (Standard II.Y).

The Notice further explained that Neal’s conduct was being charged as a First Category Infraction, “Inadequate or unsatisfactory job performance,” under Standard IV.E.1(a)(5); and as a Third Category Infraction, “Use of unnecessary force which could reasonably be expected to result in serious bodily harm or death,” under Standard IV.E.3(a)(7). Referring to SPP subsections 11 — 105(l)(iii) and (8), quoted supra, and Standard IV.E.(3)(b), the Notice stated that “Third category infractions shall result in termination from State service.” In the Notice, Warden Maloff gave the following written explanation for Neal’s termination for the October 5, 2002 incident: [Neal’s] actions constitute conduct unbecoming a Correctional Dietary Officer and the excessive use of force. Such conduct on the part of a Correctional Dietary Officer seriously threatens the safety of the inmate as well as the workplace, and if publicized, would bring the Department into disrepute. [Neal’s] actions constitute a Third Category infraction under the Standards of Conduct and an automatic ground for the termination of her employment. Her inappropriate conduct and her disciplinary history support the proposal to terminate her employment with this Department.

The Secretary signed the Notice on October 31, 2003. The DBM issued an unsatisfactory report of service reporting the ⁵⁰⁵ termination on November 4, 2003. Neal filed a timely challenge to the termination with the Department Secretary, and appealed to the DBM Secretary. Pursuant to SPP section 11-110(b)(1)(h), the DBM Secretary transmitted the appeal to the OAH, for a contested case hearing.

The hearing was held on April 8, 2003. Warden Maloff, Capt. Craig, and Lt. Warren testified on behalf of the Department.

All the reports and statements prepared about the incident were introduced into evidence by the Department, as were the personnel records for Neal that Warden Maloff reviewed prior to issuing the Notice. Neal testified on her own behalf. 3 She said that she did not actually touch Ramsburg’s neck, but just placed her hands near it, in a choking gesture. She did not call any witnesses or introduce any documents into evidence. On May 19, 2003, the ALJ issued a written decision stating her factual findings, setting forth the applicable law, and applying the law to the facts.

The ALJ found that, regardless of whether Neal actually touched Ramsburg’s neck, she did not use force against Rams-burg; did not intend to use force against or injure Ramsburg; and in fact did not cause any injury to Ramsburg. The ALJ further found that Neal’s conduct was “horseplay,” as Capt. Craig had characterized it, that was unprofessional but did not involve the use of force (excessive or otherwise) and did not seriously threaten the safety of the workplace. On that basis, the ALJ determined that the evidence did not support an automatic termination under SPP section 11 — 105(l)(iii) or (8); did not support a finding of conduct prohibited by Standard 1I.Y (use of physical force upon an inmate except in self-defense, in defense of others, or to prevent escape, serious disturbance, or to control an unruly inmate); and did not ⁵⁰⁶ support a finding of a Third Category Infraction under Standard IV.E.3.(a)(7).

The ALJ further found that Neal’s conduct was not a violation of Standard II.B.2 (unprofessional working relationships with other employees), because Ramsburg was not an employee; and was not a violation of Standard II.B.3 (conduct offensive to community standards), because it was “horseplay” that was not offensive to Ramsburg or any of the officers immediately involved in investigating it. The ALJ found, however, that Neal’s conduct had been unprofessional and therefore was a violation of Standard II.B.1 (conduct unbecoming). Neal’s actions also constituted “unjustifiably offensive” conduct toward Ramsburg, a ward of the State, in violation of COMAR 17.04.05.04(4). Pursuant to Standard IV.E.l(a), the unprofessional and offensive conduct was a First Category Infraction.

Having found the evidence legally insufficient to support the Department’s automatic termination of Neal, the ALJ reversed the termination, reinstated Neal, and imposed a four-week suspension, without pay. It was that aspect of the ALJ’s decision, and only that aspect, that the Department challenged in the action for judicial review, and again challenges in this Court. We shall set forth the reasons given by the ALJ in imposing the suspension in our discussion of Issue II. Pursuant to SPP section ll-110(d)(3), the ALJ’s decision, as the decision of the OAH, became the final agency decision.

As stated above, the Department pursued an action for judicial review, which resulted in a judgment by the circuit court affirming the final agency decision. The Department then noted this appeal. DISCUSSION I. The Department contends that Neal should not have been permitted to participate in the judicial review action, because she abandoned her status as a party to that action. ⁵⁰⁷ It is unclear what relief the Department seeks in pursuing this contention. The Department does not argue, and there would be no basis to argue, that an abandonment by-Neal of her party status in the judicial review action would have worked a change in the standard of re-view applied by the circuit court, or would have had any impact on the circuit court’s ruling.

Moreover, on appeal in this Court, we do not review the circuit court’s ruling, but review directly the final agency decision, see McKay v. Dep’t of Public Safety, 150 Md.App. 182, 193 , 819 A.2d 1088 (2003), and the Department does not argue, and also would have no basis to argue, that our standard of review would be affected by an abandonment of party status by Neal in the circuit court. Also, the Department does not argue that Neal has lost her right to participate as a party in this Court. In any event, the Department’s contention is without merit. The Department filed its petition for judicial review on June 16, 2003, and mailed notice to Neal that day.

The OAH filed a certificate of compliance, in accordance with Rule 7-202(e), on June 27, 2003. Neal did not file a response to the petition within 30 days after June 16, 2003, as required by Rule 7-204(c). On July 28, 2003, the Department filed a motion for stay of the ALJ’s decision, under Rule 7-205. On August 13, 2003, Neal, acting pro se, filed an opposition to the motion to stay, arguing that the Department was violating the ALJ’s decision by not returning her to duty with back pay and benefits.

Neal’s opposition addressed why, in her view, it was unlikely that the Department would prevail in the judicial review action. On August 18, 2003, the Department filed a reply to Neal’s opposition, and a Rule 7-207 memorandum. The circuit court issued an order on August 29, 2003, granting in part and denying in part the Department’s motion for stay. The order stayed that part of the ALJ’s decision awarding Neal reimbursements and benefits, from November 30, 2002, to August 31, 2003, and for the pendency of the ⁵⁰⁸ circuit court proceedings.

Thus, the Department remained obligated under the ALJ’s decision to return Neal to work. 4 Neal did not file a Rule 7-207 memorandum. The court held a hearing on October 15, 2003. The Department was represented by counsel, and Neal appeared on her own behalf. At the outset of the proceeding, the Department moved to preclude Neal from participating, on the ground that she had not filed a response to the petition for judicial review, and therefore was not a proper party to the case.

The Department further argued that, even if Neal was a proper party, she should not be allowed to be heard in oral argument, because she did not file a Rule 7-207 memorandum. Neal responded that she had filed an opposition to the motion to stay, but nothing else. The judge denied the Department’s motion, stating: The Court is going to permit the Respondent to participate. The Court finds that at least with respect to the Respondent’s 1 response to motion to stay that there is sufficient information in there in order to put the Department on notice as to what essentially the arguments are that are going to be raised by the Respondent.

So I am going to allow Ms. Neal to be heard. The Department argues that Neal abandoned her party status by not filing a timely response to the petition under Rule 7-204, and that for that reason the circuit court erred by allowing her to participate in the judicial review action as a party. Moreover, the Department asserts, even if Neal propérly was allowed to maintain her party status, the court 'abused its discretion in allowing her to make an oral argument at the hearing, because she did not present a Rule 7-207 memorandum. Rule 7-204, entitled “Response to petition,” states, in relevant part: ⁵⁰⁹ (a) Who may file; contents.

Any person, including the agency, who is entitled by law to be a party and who wishes to participate as a party shall file a response to the petition. The response shall state the intent to participate in the action for judicial review. No other allegations are necessary. ... (c) Time for filing response; service.

A response shall be filed within 30 days after the date the agency mails notice of the filing of the petition unless the court shortens or extends the time. The response need be served only on the petitioner, and shall be served in the manner prescribed by Rule 1-321. (Emphasis added.) Neal plainly had party status when the petition was filed. (The Department does not argue otherwise.) She did not file a timely response to the petition, however.

As the ruling quoted above makes plain, the circuit court treated Neal’s opposition to the Department’s motion to stay as a late-filed response to the petition by a person entitled to be a party. In Colao v. County Council of Prince George’s Co., 109 Md.App. 431 , 675 A.2d 148 (1996), aff'd, 346 Md. 342 , 697 A.2d 96 (1997), we recognized that Rule