Department of Public Safety & Correctional Services v. Thomas

LAWRENCE F. RODOWSKY, Judge (retired, specially assigned). The appellee, Constance Thomas, was a correctional officer employed by the appellant, Department of Public Safety and Correctional Services (the Department). After Ms. Thomas had been absent from duty without notifying her supervisor why she was absent, the Department considered that she had resigned without notice. This is the second judicial review action involving this separation of Ms. Thomas from State service.

Under the applicable personnel regulation, the appointing authority has a discretion to expunge the resignation. For the reasons that follow, we shall affirm the agency’s finding of resignation without notice. We shall remand in part, however, because the record fails to reveal that the Department exercised its discretion as to whether to expunge the resignation. Ms. Thomas was employed in the Division of Pretrial Detention and Services (the Division).

The regulation that is pertinent to this action is Maryland Regs. Code (COMAR) Title 17, “Department of Budget and Management,” Subtitle 04, “Personnel Services and Benefits,” Chapter 4, “Separations, Reemployment, and Reinstatement,” .03, “Resignations.” It provides in relevant part as follows: “A. An employee may separate from employment by resigning. ⁵⁴⁵ “D. An enaployee who is absent from duty without notifying the supervisor of the reasons for the absence and of the employee’s intention to return to duty is absent without leave. After 5 working days from the first day of absence, the appointing authority shall advise the employee by certified and regular mail sent to the employee’s last address of record that the employee is considered to have resigned without notice. A resignation without notice may be expunged by the appointing authority when extenuating circumstances exist, and the employee had good cause for not notifying the appointing authority. “E. Resignations shall be reported to the Secretary.

Resignations that are tendered without the proper notice or resignations without notice shall be entered in the employee’s personnel record.” 1 COMAR 17.04.04.03D is hereinafter referred to as “the Rule.” The Department also has adopted Standards of Conduct, a copy of which Ms. Thomas acknowledged receiving. In relevant part, Standard of Conduct III, “ATTENDANCE REQUIREMENTS,” Part A, “Employee Responsibilities,” reads as follows: “2. In situations where an employee does not have leave approved and will not be reporting for duty as required, ⁵⁴⁶ he/she shall contact his/her supervisor with a request for unscheduled leave. “3. For absences that exceed one day, the employee shall call in daily until a date of return is established!.]” At the evidentiary hearing of the administrative process Ms. Thomas’s work attendance record was introduced through Gwendelyn Bullock, the acting personnel director for the Division.

According to her personnel file, Ms. Thomas was injured at work on March 16, 2000, after which time she filed a claim with the Injured Workers Insurance Fund (IWIF). The Division first was notified of Ms. Thomas’s IWIF claim on April 3, 2000, when she requested sick days. Ms. Bullock related that medical documentation “should be submitted to cover a time frame that would include either a return to work or the next appointment.” She stated that a regulation of the Comptroller’s office required medical documentation every pay period. Ms. Thomas was absent from work on “sick accident” leave from mid-March through mid-September 2000, assertedly due to the work-related accident.

She returned to work on September 20, 2000, and worked fairly consistently, with the exception of nine unscheduled days off, until November 27. From November 27 through the date of her termination, with the exception of a single day of work on November 29, Ms. Thomas did not report to work. The time record reveals that she had exhausted all of her personal, annual, and sick leave, and compensatory time by January 2, 2001, after which time the notation “FTR,” signifying “failure to report,” is listed on her time record. Ms. Thomas failed to report to work from January 2 through January 6, and from January 9 through January 12, the date of her termination. 2 During December 2000 Ms. Thomas caused two certificates from her physician, Donald J. Hayes, M.D., to be delivered to her supervisor through a co-worker, O’Neil Dezonie.

One certificate, dated December 5, 2000, read: “Excuse absence ⁵⁴⁷ from 11/30/00 to 12/10/00U Return to work 12/11/00.” The second certificate, dated December 20, 2000, read: “Excuse absence from 12/11/00 to pending treatment and response.” On January 12, 2001, LaMont Flanagan, the Commissioner of the Division, wrote to Ms. Thomas by certified and ordinary mail. He quoted the Rule and stated: “Our records indicate you have been absent without notification to your supervisor, in person or in writing, since 01/02/01. Therefore in accordance with the above stated regulation, we have terminated your employment as a correctional officer effective 01/12/01.” Ms. Thomas contacted her union representative, Andrew Jackson. The events that thereafter transpired are not presented with precision in the record. 3 Documentary evidence reflects that on January 16, 2001, there was a discussion concerning Ms. Thomas’s “grievance or discipline” with the “appointing authority.” This information is recited in a preprinted, fill-in-the-blanks, “appeal and grievance form” that Mr. Jackson filed with the personnel division of the Department on January 26, 2001.

In the blank headed, “State the issues of fact and law that support the employee’s appeal,” Mr. Jackson inserted “COMAR 17.04.05.” 4 At a time that is not specified in the record, there was exhibited or delivered to the Department a certificate by Dr. ⁵⁴⁸ Hayes, dated January 22, 2002, that stated that Ms. Thomas “continues to be under my care.” Of similar vague origin in the record is a letter from Dr. Hayes, dated January 23, 2001, addressed, “To Whom It May Concern,” the text of which is set forth in the margin. 5 The record also contains a letter dated February 8, 2001, from the supervisor, Employee Relations Unit, Office of Personnel Services and Benefits, of the Maryland Department of Budget and Management (DBM). It was addressed to Mr. Jackson and acknowledged receipt of Ms. Thomas’s grievance. By this letter the writer, per an agreement of all parties, remanded the case to Step I of the grievance appeal procedure in order to give the Division “an opportunity to further review this matter.” The reference is to Maryland Code (1993, 1997 Repl. Vol.), § 12-203 of the State Personnel and Pensions Article (SPP).

Section 12-203 specifies that a grievance is initiated by filing in writing with the grievant’s appointing authority (subsection (a)), who is to render a written decision within ten days after a conference with the grievant (subsection (d)). Step II of the grievance procedure is an appeal to the “head of the grievant’s ⁵⁴⁹ principal unit or designee,” who also is obliged to issue a written decision. SPP § 12-204(a) and (c). The third step is review by the secretary of the DBM.

SPP § 12-205(a). At that level, “[i]f the grievance is not settled, the Secretary or designee shall refer the grievance to the Office of Administrative Hearings [OAH].” SPP § 12 — 205(b)(2)(ii). In any event, Ms. Thomas’s grievance obviously was not resolved, and a contested case hearing was held before an administrative law judge (ALJ). The ALJ looked to SPP § 12 — 101(b)(1), which defines “grievance” to mean “[a] dispute between an employee and the employee’s employer about the interpretation of and application to the employee of: “(i) a personnel policy or regulation adopted by the Secretary; or “(ii) any other policy or regulation over which management has control.” The ALJ considered that “the action grieved” was “management’s issuance of the resignation without notice,” and, applying the definition of “grievance,” concluded that Ms. Thomas had not presented a grievable issue.

The grievance was dismissed. 6 Ms. Thomas sought judicial review in the Circuit Court for Baltimore City. That court vacated the ALJ’s order and remanded the matter to the OAH “(1) for a full evidentiary hearing on all the issues raised, including and not limited to the COMAR Title 11 and Title 12 issues, and following the hearing (2) for a full decision on all issues raised.” The Department did not appeal that judgment to this Court. On remand, the ALJ considered that “[t]he central question is whether [Ms. Thomas’s] termination on January 12, 2001 was a disciplinary action and ⁵⁵⁰ grievable pursuant to SPP § 11-101 or a resignation from employment, SPP § 12-101 and COMAR 17.04.01.04A(1) and (3), and not subject to the grievance procedures.” 7 The ALJ made two significant fact-findings. He concluded “that the Grievant failed to prove by a preponderance of the evidence that she provided information to her employer of her continued illness effective January 2, 2001.” He also concluded that “she failed to present credible evidence to support her position,” namely, “that her January 12, 2001 separation was a disciplinary action[.]” The ALJ again held that Ms. Thomas had “resigned without notice, and that management’s issuance of the resignation without notice, is not a grievable issue.” The ALJ’s letter transmitting his opinion advises that his opinion was the final decision of the DBM.

On Ms. Thomas’s second petition for judicial review, the circuit court again vacated and remanded. It directed the OAH to hold a full evidentiary hearing on all issues, specifically: “1. Whether the Respondent properly applied the provisions of [the Rule]; “2. If the Respondent failed to properly apply [the Rule], whether the Petitioner’s matter is grievable under [SPP] Title 12; “3.

Whether Respondent discharged the Petitioner in violation of [SPP] § 11-106; and “4. Whether Petitioner was denied her right to appeal her discharge in violation of [SPP] § 11-109.” The Department appealed to this Court. At the threshold, there are two overarching aspects to this appeal. First, there was substantial evidence that the triggering events expressly set out in the Rule were present here for the Department’s initial application of the Rule to Ms. Thomas.

Second, both the ALJ’s opinion, and the Department’s brief, direct little or no attention to that provision in the Rule which states that the ⁵⁵¹ resignation “may be expunged by the appointing authority when extenuating circumstances exist, and the employee had good cause for not notifying the appointing authority.” Hereinafter, we shall refer to the quoted language as the “Second Look” provision. Based on the arguments of the parties in this Court, the issues fairly may be restated by us as follows: I. Was the Second Look provision of the Rule invoked by Ms. Thomas in the administrative process?

II

If so, was the administrative process governed by SPP Title 11, “Disciplinary Actions, Layoffs, and Employment Terminations in State Personnel Management System,” or by SPP Title 12, “Grievance Procedures in State Personnel Management System”?

III

If governed by Title 12, is the complaint grievable? and IV. If grievable, did the Department address the Second Look provision? Standard of Review In reviewing the decisions of administrative agencies, such as that handed down by the ALJ in this case, our review is limited in scope. In such an appeal, “this Court’s role is ‘precisely the same as that of the circuit court.’ ” Stover v. Prince George’s County, 132 Md.App. 373, 380 , 752 A.2d 686, 690 (2000). “A distinction is drawn in the scope of review depending upon whether the court is reviewing an administrative agency’s findings of fact as opposed to purely legal conclusions. ‘To the extent the issues on appeal turn on the correctness of an agency’s findings of fact, such findings must be reviewed under the substantial evidence test.’ ” Beeman v. Department of Health, & Mental Hygiene, 107 Md.App. 122, 136 , 666 A.2d 1314, 1320-21 (1995) (citation omitted).

Under this test, our inquiry is focused on whether evidence exists in the record from which a reasonable person could draw the same conclusion as the ALJ. Caucus Distrib., ⁵⁵² Inc. v. Maryland Securities Comm’r, 320 Md. 313, 324 , 577 A.2d 783, 788 (1990). In applying this test, however, we “d[o] not substitute [our] judgment, even on the question of the appropriate inference to be drawn from the evidence, for that of the agency.” Beeman, 107 Md.App. at 136-37 , 666 A.2d at 1321 . Rather, we afford deference to the factual findings of the agency, as long as they are supported by the record.

Christopher v. Montgomery County Dep’t of Health & Human Servs., 381 Md. 188, 199 , 849 A.2d 46, 52 (2004). In contrast, “[determining whether an agency’s ‘conclusions of law’ are correct is always, on judicial review, the court’s prerogative, although we ordinarily respect the agency’s expertise and give weight to its interpretation of a statute that it administers.” Id. at 198 , 849 A.2d at 52 . Further, an arbitrary and capricious standard applies to our review of an agency’s discretionary functions, making such actions essentially unreviewable “[a]s long as [the agency’s] exercise of discretion does