Hider v. Department of Labor, Licensing & Regulation

SALMON, Judge. The main legal issue to be resolved in this case is whether an employee may be disqualified from receiving unemployment compensation insurance if the employee is fired for unintentional misconduct. This is an issue of first impression, which we answer in the negative, based on our interpretation of the term “misconduct” as used in Maryland Code Annotated, Labor and Employment section 8-1003 (Supp.1996). Barbara Hider and Virginia White (appellants), employees of the North Arundel Nursing & Convalescent Center, Inc. (the Nursing Home), were fired on October 7, 1994, for an ²⁶² incident that occurred at the Nursing Home on October 6, 1994.

Ms. Hider, a registered nurse, had worked as Assistant Director of Nursing at the Nursing Home for five years prior to her discharge. Ms. White, a licensed practical nurse, had been a nursing supervisor for over two years before her discharge. The Office of Unemployment Insurance of the Maryland Department of Economic and Employment Development (DEED) conducted a fact-finding hearing to determine whether appellants were separated from their employment for a “disqualifying reason” within the meaning of Maryland Code Annotated, Labor and Employment sections 8-1001 to 8-1003 (Supp.1996). The Office of Unemployment Insurance, in separate notices dated Nov. 15, 1994, concluded: “Insufficient information has been presented to show misconduct in connection with the work.

As a result the circumstances surrounding the separation do not warrant a disqualification under section 8-1002 or 8-1003 of the Maryland Unemployment Insurance Law.” The Nursing Home appealed the decisions and a hearing was held on January 23 and January 24, 1995, before the Appeals Division of DEED. 1 In a written decision dated February 3, 1995, Hearing Examiner Kevin M. O’Neill found: The claimants were terminated by the employer on or about October 7, 1994, for failing to respond to an emergency situation. The claimants presented numerous witnesses and documentation to support a finding that they were not aware of an emergency situation with a specific patient. (Emphasis added.) He concluded that the claimants “apparently misunderstood the gravity of the situation” and “used poor judgment.” He held that their “misjudgment in this ... case amounts to misconduct” connected with employment within the meaning of Labor and Employment section 8-1003. ²⁶³ Accordingly, appellants were denied unemployment insurance benefits for ten weeks. The Board of Appeals of DEED 2 (the Board), in separate but identical decisions, dated April 3, 1995, adopted the findings of fact and conclusions of law of Hearing Examiner O’Neill.

On April 20, 1995, in the Circuit Court for Anne Arundel County, appellants filed a Petition for Judicial Review of the Board’s decision. Both the Nursing Home and DEED notified the circuit court of their intent to participate in the appeal. The Nursing Home filed a motion to dismiss the appeal, on November 20,1995, alleging that appellants failed to either file a timely memorandum pursuant to Maryland Rule 7-207(a) or to timely seek a filing extension. On December 8, 1995, Judge Robert H. Heller heard arguments on the Nursing Home’s motion to dismiss.

Judge Heller denied the motion but entered a judgment of $500 against appellants for a portion of the Nursing Home’s attorney’s fees. The circuit court (Goudy, J., presiding), after hearing arguments, affirmed the Board’s decision. Appellants filed a timely appeal raising three issues, 3 which we have rephrased and reordered: I. Whether appellants were discharged from the Nursing Home for the same behavior that the Board found to be misconduct.

II

Whether the Board erred as a matter of law by concluding that appellants’ misjudgment amounted to miscon ²⁶⁴ duct within the meaning of section 8-1003 of the Labor and Employment Article.

III

Whether the circuit court erred in entering a judgment of $500 against appellants to reimburse the Nursing Home for certain attorney’s fees. FACTS The incident leading up to the discharge of Ms. White and Ms. Hider involved the care of a sixty-nine year old chronically ill patient (the patient) at the Nursing Home, on October 6, 1994. In the words of his physician, the patient was a “very seriously ill gentleman,” who had been “in and out of the hospital many, many times during his admission” at the Nursing Home. The patient had been the victim of several heart attacks and suffered from recurrent pneumonia.

He often moaned and got agitated and, to calm him, Ativan and Tylenol were prescribed. His mental faculties were adversely affected by his heart ailment, and as of October 6, 1994, the patient was getting progressively sicker and weaker. After the incident in question, the patient was transferred from the Nursing Home to North Arundel Hospital for “evaluation.” A “transfer summary” by North Arundel Hospital noted that the patient was “diaphoretic” (profusely sweating) and was “agitated and chanting.” The patient was admitted to the hospital to rule out a “cardiac event.” He remained in the hospital for two weeks and was discharged with a diagnosis of pneumonia in both lungs. The Multi-Purpose Room Incident A considerable portion of the testimony presented to the Hearing Officer was devoted to events that allegedly took place in the multi-purpose room at the Nursing Home on October 6,1994.

According to witnesses testifying on behalf of the Nursing Home, at approximately 12:30 p.m. on that date, Sandra Osborne, Lorraine Hill, Melinda Miller, Charlene Roberto, and appellants were present in the multi-purpose room. The ²⁶⁵ Nursing Home’s witnesses testified that while Ms. White was in the room she was paged by Robin Anderson, LPN, the nurse in charge of the patient. Ms. Osborne remembered that Ms. White answered the page and was advised of the patient’s grave condition; Ms. White then instructed Ms. Anderson to call the patient’s physician for input. Several witnesses testified that after finishing the conversation, Ms. White asked if anyone had heard the patient complain about “his heart hurting.” According to Ms. Osborne, the following events then took place: Melinda Miller [LPN] stated she had never heard him make a statement like that, it sounded serious.

Ms. Osborne: And was there any reaction from anyone? [Counsel]: They discussed it back and forth— Ms. Osborne: And then what happened? [Counsel]: Barbara Hider was sitting in a chair. She was writing out a care plan, and they [White and Hider] got up to leave out of the multipurpose room. Barbara Hider said, “What about the food in the car?” 4 Ms. Osborne: [Counsel]: And what did Ms. White say, if anything? Ms. Osborne: She said, “Well, we’ll get the food out of the car, and then we’ll dial 911 when we get back.”[ 5 ] Ms. Osborne remembered that appellants were laughing when they left the multi-purpose room.

The Nursing Home’s witnesses also testified that after appellants left the room, Ms. Miller also left to check on the patient. In contrast, both Ms. White and Ms. Hider testified that they neither heard nor answered a page from Ms. Anderson. Ms. Anderson, who testified on behalf of appellants, partially ²⁶⁶ corroborated their version of the events. She testified that the patient’s family had told her that he was moaning, “My heart, my heart.” She paged Ms. White because she “wasn’t quite sure what to do, because he [the patient] does this so often.” Ms. Anderson further testified that someone answered her page, and that, although she did not recognize the voice, at the time she “assumed” it was Ms. "White.

She testified that she was not sure if she, in fact, spoke with Ms. "White, “because the person didn’t identify” herself and because, minutes later, when she met Ms. "White and Ms. Hider in the hallway, Ms. White “didn’t understand what I was talking about.” 6 The Hearing Examiner did not credit the testimony of the Nursing Home’s witnesses regarding the events in the multipurpose room: Much testimony was produced with regard to activities that occurred in the morning in the multi-purpose room. This Hearing Examiner does not find as fact that either part[y] heard a page in that multi-purpose room. It is clear that both claimants spoke to Ms. Anderson prior to exiting the building____ Ms. Anderson had made a page minutes prior believing that she had communicated with Ms. "White. Ms. Anderson may not have communicated with Ms. White on a prior page.

The Hallway Conversation Although the Hearing Examiner determined that neither Ms. Hider nor Ms. White were informed of the patient’s condition as a result of the page to the multi-purpose room, he concluded that they were informed of Ms. Anderson’s concern for the patient’s condition in a hallway conversation prior to their exit from the building. The testimony of Ms. Hider, Ms. ²⁶⁷ White, and Ms. Anderson confirms that such a conversation took place. Ms. Anderson testified that, after she explained the patient’s condition to the person answering her page, she was told to call the doctor. Dr. O’Chaney, the patient’s regular physician, testified that when Ms. Anderson called him she said that the patient was “agitated” and moaning “My heart, my heart.” When Dr. O’Chaney asked Ms. Anderson if she thought the patient was having chest pains, she replied that “it’s hard to tell ... because he’s acting the same as he does every day.” Dr. O’Chaney understood her problem because the patient was “a difficult patient to assess most of the time, because of his mental condition.” Ms. Anderson asked Dr. O’Chaney if she could “send him out” via 911. 7 Dr. O’Chaney instructed her to give the patient Ativan and Tylenol and to “wait and watch what happens.” From the information that Nurse Anderson conveyed to Dr. O’Chaney, he did not think that it was an emergency situation, and thus, he told her that she should not transfer the patient to a hospital via 911.

After speaking with Dr. O’Chaney, Ms. Anderson was still concerned about the patient because she “really felt that he should be sent out” to be evaluated, “even if he wasn’t having chest pains.” Ms. Anderson decided to talk to Ms. White “again.” As she got up from her desk, she saw Ms. White and Ms. Hider walking down the hall. She told both of them that she had spoken with Dr. O’Chaney and that he didn’t want the patient sent to the hospital. According to Ms. Anderson, Ms. White “didn’t act like she quite understood what I was talking about” and she asked questions such as “why did you call the doctor” and “what is [the patient] doing.” During the conver ²⁶⁸ sation, Ms. Anderson informed appellants that she had not yet taken the patient’s vital signs. Ms. White and Ms. Hider testified that they instructed Ms. Anderson to get the patient’s vital signs and assess his condition.

They advised her that they would return shortly. The two then left the building and went to the parking lot to get food for an employee’s bridal shower. Ms. Anderson never evaluated the patient, however, because on her way to his room Ms. Miller waved to her and told her, “We’re sending him out.” Ms. Miller explained that she had been in the patient’s room, that he was sweating profusely with a rapid pulse rate of 104, and that she had called 911. 8 At the hearing, Ms. Anderson admitted that, while in the hallway, she did not tell Ms. Hider and Ms. White that the patient was sweating profusely because “he wasn’t real dia-phoretic when I saw him.” Ms. White testified that Ms. Anderson did not request her or Ms. Hider’s. assistance, nor did she indicate that there was an emergency: “[S]he was just giving me a general update like the other nurses do periodically through the day.” Ms. Anderson admitted that she did not use the word “emergency” when speaking to Ms. Hider and Ms. White. When Ms. Anderson was asked whether, during the hallway conversation, she indicated in any way to appellants that it was an emergency, she replied somewhat ambiguously: Yes, I did, in the way that I was concerned that he had said that he was having chest pains.

And that ... I thought that he should be evaluated, sent out. Regarding the hallway conversation, the Hearing Examiner found: The charge nurse, Robin Anderson, notified her Supervisor, Ms. White and the Assistant Director of Nursing, Ms. Hider, that she had a great concern for a specific patient. ²⁶⁹ Ms. Anderson informed them that she had called the doctor with regard to her concern for the patient. Ms. Anderson was seeking advice and opinion from her two supervisors, because of her concern for a patient.

Ms. Anderson testified credibly that she believed it was an emergency situation, but did not use these words. The claimant, [] Ms. White, and Ms. Hider did not follow Ms. Anderson back to the patient’s room. They proceeded to the parking lot to receive personal items which were to be used later during the day. The Decision to Terminate Sandra Mennerick, Administrator of the Nursing Home, investigated the events of October 6, 1994, and made the decision to terminate Ms. Hider and Ms. White.

She testified that, on October 6, she was informed of the incident in the multi-purpose room by Sandra Osborne. On October 7, 1994, she spoke with Marcy Ely, Nursing Director, who agreed to conduct an investigation of the incident. According to Ms. Mennerick, Ms. Ely spoke with appellants, and they both denied being in the multi-purpose room. 9 As a result, both Ms. Ely and Ms. Mennerick determined that “someone’s lying.” To clarify the matter, Ms. Ely and Ms. Mennerick called Lorraine Hill, Volunteer Supervisor, into Ms. Mennerick’s office and asked her to describe what had happened in the multi-purpose room. Ms. Hill confirmed Ms. Miller’s and Ms. Osborne’s versions of the incident.

As a result of their investigation, Ms. Ely and Ms. Menner-ick decided that Ms. Hider and Ms. White must be terminated immediately. 10 Ms. Mennerick called Ms. Hider and Ms. White into her office, and the following took place: ²⁷⁰ Ms. Mennerick: The four of us [Mennerick, Ely, White & Hider] started to discuss the situation. ... Barbara [Hider] did most of the talking, and Barbara was emphatic that she was not in the room, she had never been in the room the entire day, and was not in there. And I said to her, “Well, I saw you in there myself. I saw you earlier in there at the back table.” And she said, “I was never in there.

I wasn’t in there the entire day. I was never in the room. I know nothing about this.” [Counsel]: So how did the conversation proceed after that? Ms. Mennerick: So the four of us, and I don’t remember the exact words or in exactly what order people were talking, except that Marcy [Ely] reiterated again her concern about [the patient] that they had left the building; about the statement about his heart hurting, their denying that they knew anything about that, that they never heard him say anything like that.... [Counsel]: Who told them that they were being terminated?SUMs.

Mennerick: I did. I told them based on the information that was presented to me, that I felt that they were not [ ] credible people, and that under those circumstances that they failed to respond to a patient that was in distress. That that was extremely against any of our policies, and that I didn’t want them working there any longer. (Emphasis added.) Prior to terminating Ms. Hider and Ms. White, Ms. Mennerick did not speak with Ms. Anderson, nor did she have knowledge of Ms. Anderson’s conversation with ²⁷¹ appellants in the hallway prior to their exit from the building. 11 In response to a form titled “Request for Separation Information” from the Office of Unemployment Insurance of the DEED, Ms. Mennerick, in her capacity as Administrator of the Nursing Home, gave the following reason for Ms. White’s and Ms. Hider’s discharges: 10/6/94 Failed to respond to a request for assistance regarding patient’s health status and during the situation left the building to get personal items from [] car.

This resident was sent out 911 & resulted in a myocardial infarction.[ 12 ] STANDARD OF REVIEW Our role in reviewing the decision of an administrative agency “is precisely the same as that of the circuit court.” Department of Health and Mental Hygiene v. Shrieves, 100 Md.App. 283, 303-04 , 641 A.2d 899 (1994). Like the circuit court, we must review the administrative decision itself. Public Serv. Comm’n v. Baltimore Gas & Electric Co., 273 Md. 357, 362 , 329 A.2d 691 (1974).

Inasmuch as the Board adopted the Hearing Examiner’s findings of fact and conclusions of law, we look to the Hearing Examiner’s decision in order to determine whether the Board erred in concluding that appellants were discharged for misconduct, within the meaning of Labor and Employment section 8-1003. The standard of review of unemployment insurance determinations is governed by Labor and Employment section ²⁷² 8-512(d). 13 Under that standard, our review of the Board’s decision is limited to determining: (1) whether the Board “applied the correct principles of law,” Department of Economic and Employment Dev. v. Taylor, 108 Md.App. 250, 261 , 671 A.2d 523 (1996), aff'd, 344 Md. 687 , 690 A.2d 508 (per curiam); and (2) whether the Board’s factual findings are supported by “substantial evidence.” United Parcel Serv. v. People’s Counsel for Baltimore County, 336 Md. 569, 577 , 650 A.2d 226 (1994). The Board’s decision is reviewed in the light most favorable to the Board, “since decisions of administrative agencies are prima facie correct and carry with them the presumption of validity.” Board of Education v. Paynter, 303 Md. 22, 35-36 , 491 A.2d 1186 (1985). We can, however, only affirm the Board’s decision based on its findings and for the reasons presented.

Department of Economic Employment Dev. v. Propper, 108 Md.App. 595, 607 , 673 A.2d 713 (1996) (citing United Parcel Serv., 336 Md. at 570 , 650 A.2d 226 ). “[F]indings of fact made by the Board are binding upon the reviewing court, if supported by substantial evidence in the record.” Board of Appeals, Dep’t of Employment and Training v. Mayor and City Council of Baltimore, 72 Md. App. 427, 431 , 530 A.2d 763 (1987). The “substantial evidence” standard means that the scope of review is limited to determining “whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.” Department of Economic and Employment Dev. v. Hager, 96 Md. App. 362, 369 , 625 A.2d 342 (1993) (quoting Baltimore Lutheran High Sch. Ass’n v. Employment Sec. Admin., 302 Md. 649, 661-62 , 490 A.2d 701 (1985)). In addition, it is the Board’s exclusive province to resolve factual conflicts and draw inferences from the evidence.

Paynter, 303 Md. at 36 , 491 A.2d ²⁷³ 1186; Taylor, 108 Md.App. at 262 , 671 A.2d 523 . “ ‘The Court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness.’ ” Snowden v. Mayor and City Council of Baltimore, 224 Md. 443, 448 , 168 A.2d 390 (1961) (citation omitted). In contrast, our review of the Board’s legal conclusions is much broader: When the issue before the agency is one of law, “no deference is appropriate and the reviewing court may substitute its judgment for that of the agency.” Liberty Nursing Ctr., Inc. v. Department of Health and Mental Hygiene, 330 Md. 433, 443 , 624 A.2d 941 (1993); see Westinghouse Electric Corp. v. Callahan, 105 Md.App. 25, 34 , 658 A.2d 1112 (1995) (court may substitute its judgment on the law if agency’s “factual findings supported by substantial evidence are susceptible of but one legal conclusion, and the agency does not so conclude”). Moreover, if there is an issue of statutory construction, “[s]uch an issue involves a question of law,” and our review of the Board’s interpretation of a statute is expansive.

Gray v. Anne Arundel County, 73 Md.App. 301, 309 , 533 A.2d 1325 (1987) (citing Comptroller of the Treasury v. Mandel Re-election Comm., 280 Md. 575, 579 , 374 A.2d 1130 (1977)). Analysis of the first and second issues presented by appellants requires us to interpret section 8-1003 of the Labor and Employment Article and to apply well-settled principles of statutory construction. The cardinal rule of statutory interpretation is to ascertain and effectuate the legislative intent in enacting the statute. Montgomery County v. Buckman, 333 Md. 516, 523 , 636 A.2d 448 (1994).

The language of the statute itself is the primary source for determining the intention of the Legislature, Gray, 73 Md.App. at 309 , 533 A.2d 1325 , and we give that language its “natural and ordinary meaning.” Buckman, 333 Md. at 523 , 636 A.2d 448 ; Harford County v. University of Md. Medical Sys. Corp., 318 Md. 525, 529 , 569 A.2d 649 (1990). Absent a clear intent to the contrary, a statute must be read “so that no word, clause, ²⁷⁴ sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory.” Buckman, 333 Md. at 523-24 , 636 A.2d 448 ; State v. 149 Slot Machines, 310 Md. 356, 361 , 529 A.2d 817 (1987). Moreover, we read “pertinent parts of the legislative language together, giving effect to all of those parts if we can, and rendering no part of the law surplusage.” Sinai Hosp. v. Department of Employment, 309 Md. 28, 40 , 522 A.2d 382 (1987).

In considering the statutory scheme as a whole, we also consider the Legislature’s purpose in enacting the statute. Taylor, 108 Md.App. at 267 , 671 A.2d 523 . The Unemployment Insurance Law is a remedial statute “intended to prevent economic insecurity and to alleviate the consequences of involuntary unemployment and economic distress.” Allen v. Core Target City Youth Program, 275 Md. 69, 75 , 338 A.2d 237 (1975). Given the remedial nature of the Unemployment Insurance Law, the Court of Appeals has held that such laws are to “be read liberally in favor of eligibility,” and “disqualification provisions are to be strictly construed.” Sinai Hosp., 309 Md. at 40 , 522 A.2d 382 .

ANALYSIS I. Whether appellants were discharged from the Nursing Home for the same behavior that the Board found to be misconduct. Labor and Employment section 8-1003 states: (a) Grounds for disqualification. — An individual who otherwise is eligible to receive benefits is disqualified from receiving benefits if the Secretary finds that unemployment results from discharge or suspension as a disciplinary measure for behavior that the Secretary finds is misconduct in connection with employment but that is not: (1) aggravated misconduct, under § 8-1002.1 of this subtitle; or (2) gross misconduct, under § 8-1002 of this subtitle. ²⁷⁵ (b) Duration of disqualification. — A disqualification under this section shall (1) begin with the first week for which unemployment is caused by discharge or suspension for misconduct; and (2) continue for a total of at least 5 but not more than 10 weeks, as determined by the Secretary, based on the seriousness of the misconduct. (Emphasis added.) A plain reading of section 8-1003(a) dictates that to disqualify a claimant from receiving benefits, the Secretary is required to find that the employee was discharged “for behavior” that the Secretary “finds is misconduct in connection with employment.” In other words, in order to deny unemployment insurance benefits, the Secretary must first focus on the misbehavior of the employee that the employer alleges justified the termination; if the Secretary finds that the employee was not guilty of that misbehavior or that such misbehavior does not constitute misconduct, denial of unemployment benefits is unwarranted. An employee may not be denied benefits based on some action or inaction, that does not constitute the employer’s basis for the discharge.

Any contrary reading of the statute would deny due process to unemployment insurance claimants. The most basic requirement of due process “in any adversary proceeding ... is that the person proceeded against be given notice and an adequate opportunity to contest the claim against him.” Burns v. Mayor and City Council of Midland, 247 Md. 548, 553 , 234 A.2d 162 (1967). To allow the Board to find misconduct for reasons different from those alleged by the