Maryland Aviation Administration v. Noland

Opinion by ELDRIDGE, J. This is an action for judicial review of an adjudicatory administrative decision terminating the employment of a state governmental employee. The Circuit Court for Anne Arundel County, while accepting the administrative findings of fact as being supported by substantial evidence, reversed the administrative decision on the ground that the termination sanction for the employee’s misconduct was “arbitrary.” The Court of Special Appeals, in an unreported opinion, affirmed. Both courts relied upon an earlier Court of Special Appeals’ case, Maryland State Retirement Agency v. Delambo, 109 Md.App. 683 , 675 A.2d 1018 (1996). We shall reverse, shall direct that the administrative decision be affirmed, and shall overrule Maryland State Retirement Agency v. Delambo, supra.

I. The respondent Clifton F. Noland was a paramedic employed by the Maryland Aviation Administration, which is a unit of the Maryland Department of Transportation. The basic facts concerning Noland’s employment history and the incident leading to his termination were undisputed. They are set forth in the opinion of Administrative Law Judge (ALJ) Sharonne R. Bonardi as follows: “FINDINGS OF FACT” “Having considered the evidence presented, I find the following facts by a preponderance of the evidence:” “1. At all times relevant to this proceeding, the Employee [Clifton F. Noland] was employed as an Airport Ad ⁵⁵⁹ vanced Life Support Provider with the Maryland Aviation Administration.” “2.

The Employee began employment as an Airport Advanced Life Support Provider on December 14, 1988. During the period 1989-1992, in a range of superior, satisfactory, and unsatisfactory, the Employee received satisfactory on his performance evaluations. In 1993 and 1994, he received superior ratings. From 1995-1998, in a range of far exceeds, exceeds, meets, below, and far below, the Employee received an exceeds standards rating.” “3.

On May 1, 1997, THRS [Transportation Service Human Resources System of the Maryland Aviation Administration] issued a Workplace Violence policy. On November 6, 1997, the Employee signed an Employee Acknowledgment Receipt acknowledging that he received a copy of TSHRS Workplace Violence policy and was required to familiarize himself and comply with that policy as a condition of employment.” “4. On March 30, 1999, the Employee and Paramedic James Clopein were working the ‘D’ shift within the Fire Rescue and Safety unit at the Baltimore Washington International (‘BWI’) Airport. At 12:21 a.m., the Consolidated Dispatch Center (‘CDC’) received a call from Police Officer Reed, Maryland Transportation Authority Police (‘MTA’) requesting an ambulance to assist in transporting a combative psychiatric prisoner (‘Patient’) to the North Arundel Hospital.

The CDC immediately dispatched a two-member paramedic team consisting of the Employee and Paramedic Clopein.” “5. Before entering the MTA police station, both the Employee and paramedic Clopein placed latex gloves on their hands and then took a stretcher and portable radio into the police station.” “6. The police officers informed the paramedics that the combative patient was spitting and drinking water from the toilet in his cell.” ⁵⁶⁰ “7. The Employee returned to the ambulance to retrieve protective face shields.

He located two face shields in the vehicle and brought them back to the police station.” “8. When the Employee returned to the police station, the police officers opened the cell to remove the Patient. As the police officers were opening the cell, the Patient spit fluid onto one of the police officer’s face, neck, and chest.” “9. The Employee and Paramedic Clopein requested that the Patient be placed face-down on the stretcher.

The police officers restrained the Patient with handcuffs and placed the Patient on his back onto the stretcher rather than face-down as requested. The Employee placed a face shield onto the Patient. Both the Employee and Paramedic Clopein strapped the Patient to the stretcher, and with the assistance of the police officers, began carrying the patient from the police station.” “10. The Patient, while spitting and screaming ‘f — you’ and other expletives, dislodged the face shield and spit at the Employee.

The Patient also threatened to kill the Employee, Paramedic Clopein, and the police officers present. The Employee struck the Patient in the face with closed fist and then reattached the face shield onto Patient’s face. The police officers and Paramedic Clopein observed the blow to the Patient’s face and made no comments regarding the Employee’s actions.” “11. The Employee and Paramedic Clopein exited the police station and were pushing the stretcher to the ambulance when the Patient again dislodged the face shield and spit at the Employee.

The Employee once again hit the Patient in the face with a closed fist and reattached the face shield onto the Patient’s face. Paramedic Clopein observed the hit. A police officer was also present when the Employee struck the Patient this time as well.” “12. During the incident, the Employee had a portable radio in one hand but never used the radio to strike the Patient.” ⁵⁶¹ “13.

Both hits were with the Employee’s closed fist and neither caused bruising, swelling, or any other visible injury to the Patient.” “14. The blows were to prevent the Patient from spitting and to protect the police officers and the paramedic team from possible exposure to a communicable disease.” “15. The Employee, Paramedic Clopein, and a police officer transported the Patient to North Arundel Hospital without further incident.” “16. The Employee and Paramedic Clopein did not report the incident to the North Arundel Hospital staff.” When Noland and Clopein returned to BWI, Clopein, as the non-driving paramedic and pursuant to established internal agency practice, completed and filed a Maryland Ambulance Information System Report and a BWI Fire and Rescue Service Report, but, as found by the ALJ, he “did not include any statements regarding the Employee’s act of twice striking the Patient.” In addition, upon returning from the Hospital to BWI, Noland and Clopein failed to report Noland’s act of twice striking the patient either to the Emergency Medical Services (EMS) Coordinator, or to the Shift Supervisor, or to the Shift Commander.

The ALJ further found that, later in the day of March 30, 1999, “Paramedic Clopein described the incident to Paramedic Fayer, the EMS Coordinator, and informally asked if the incident should have been reported. Paramedic Fayer informed Paramedic Clopein that he should have reported the incident. Paramedic Fayer immediately informed Francis Jester, Division Fire Chief, ... of the incident, and Fire Chief Jester advised Paramedic Fayer to obtain written statements from both the Employee and Paramedic Clopein and forward the reports to the shift commander.” Noland completed his report on April 3, 1999, and submitted it to Paramedic Fayer and the Division Fire Chief on the same day. Clopein completed and submitted his report on April 15,1999.

According to the ALJ’s findings, “[a]ll BWI paramedics and emergency medical personnel operate under the medical li ⁵⁶² cense of Dr. Phillip Phillips, BWI, FRS Medical Director.” Dr. Phillips was informed of the striking incident on April 15, 1999, and, that same day, suspended Noland from operating under Dr. Phillips’s medical license. On the next day, the Maryland Institute of Emergency Medical Services System suspended for one.year Noland’s paramedic license for twice striking the patient. Also on April 16, 1999, the BWI Airport Fire Department began an investigation of the incident. The investigation was competed on April 20, 1999, and Clopein was suspended without pay for five days for failing to report the incident.

Noland, on April 22, 1999, was suspended without pay pending the disposition of charges for his termination as an employee with the Maryland Aviation Administration. Following the completion of the investigation, Noland was informed on July 2, 1999, that charges for termination of his employment and disqualification for future employment with the Maryland Aviation Administration, based upon his striking a patient twice and failing to report the incident, had been filed against him. Noland filed a timely appeal to the Maryland Office of Administrative Hearings, and a hearing was held before ALJ Bonardi on January 27, 2000, and continued on March 6, 2000. The ALJ on April 20, 2000, filed an extensive opinion containing findings of fact as summarized above, conclusions of law, and a proposed decision.

The ALJ concluded that Noland did not violate “Management’s Workplace Violence Policy” because “he did not strike the Patient out of anger, but rather to prevent or reduce possible exposure to an infectious disease,” and that his “actions were not done for the purpose of intimidation, or for the purpose of harming, damaging, or causing injury to persons or property.” 1 ALJ Bonardi, after ⁵⁶³ a detailed review of COMAR regulations, the “Manual of Maryland Medical Protocols for Cardiac Rescue Technicians and Emergency Medical Technicians-Paramedic,” and the expert testimony at the hearing, further concluded as follows: “I conclude as a matter of law that the Employee used excessive force when twice striking the restrained Patient. COMAR 11.02.08.06B(10). I also find as a matter of law that in striking the Patient and failing to report the incident, the Employee violated a written policy and committed an act of misconduct and that act could have caused loss or injury to the State. COMAR 11.02.08.06B((6), COMAR 11.02.08.06B(8), COMAR 11.02.08.06B(12).

Those charges are therefore sustained.” With regard to the appropriate sanction, the ALJ recommended a suspension rather than termination of Noland’s employment, stating: “Management can terminate an employee for conduct amounting to one or more of the enumerated causes for termination. COMAR 11.02.08.06B. Management has established that the Employee has violated three (3) of the six (6) causes of termination set forth above. Thus, the Management has met its burden of persuasion and can terminate the Employee.

The Employee argues that Management should apply its progressive discipline policy and not impose the termination. Management counter-argues that progressive discipline is discretionary. Management is correct that it is not required to implement the Progressive Discipline Policy (‘Policy 7G’) (Emp. Exhibit 6.) The policy states that in some cases a particular form of discipline may be bypassed depending on the severity or number of violations, documentation, or the employee’s work history.

(7G 4.3) After Chief Allen met with Employee Relations and the MAA Attorney general, Management concluded that the ⁵⁶⁴ Employee’s actions were so severe that termination was warranted.” “The Employee has not been disciplined for any reason in the past years while employed by the MAA. The Employee has received ‘superior’ or ‘exceed standards’ in his performance evaluations since 1993. Also, Chief Pace testified that after completing the investigation, he orally recommended that the Employee be suspended for thirty days. In considering the Employee’s action, his work history, and the recommendation of the Investigator Chief Pace, the Employee’s Motion to Modify the Penalty of Termination is GRANTED.

I propose that the appropriate sanction is to suspend the Employee without pay. The period of suspension began April 22, 1999 and continues until the Employee’s paramedic license is reinstated by MIEMSS.” The Maryland Aviation Administration filed, with the Secretary of the Department of Budget and Management, exceptions to the ALJ’s proposed decision, and the exceptions were considered by a designee of the Secretary who rendered an opinion and a final administrative decision on July 27, 2000. The designee “adopt[ed] the 41 findings of fact the ALJ made” and “sustained” the ALJ’s conclusions of law with one “exception.” The “exception” was that the designee concluded that Noland’s actions constituted a violation of the “Management’s-Workplace Violence Policy.” The designee explained: “The Maryland Aviation Administration ... filed an exception to the ALJ’s conclusion that the employee did not violate the employer’s workplace violence policy. The ALJ read into the policy the requirement that someone must act out of anger to violate the policy, and in this case the employee was concerned for his safety and did not act out of anger.

Consequently, in the view of the ALJ, the employee did not violate the policy. However, I disagree, as a matter of law, with the reasoning of the ALJ. Striking a restrained and handcuffed patient with a closed fist is not acceptable, and is an unjustified act of violence. The trouble in the ⁵⁶⁵ ALJ’s reasoning lies in the fact that someone may be motivated by fear, yet his actions could still be intimidating, harming or damaging.

The fact that Mr. Noland twice struck the patient with a closed fist 2 leads to the inference that while one of the purposes was to stop the patient from spitting, the means of doing so was to intimidate the patient, through the escalation of the event from a verbal warning to the introduction of force, to get him to stop spitting. See footnote 2, supra. Indeed, the ALJ elsewhere found that the striking of the employee was an unwarranted and excessive use of force. ALJ proposed opinion, page 19.

Hence, because the use of force was unwarranted and excessive, the policy on workplace violence also was violated.” 3 The Secretary’s designee disagreed with the ALJ’s recommended sanction, saying (footnote omitted): “Penalty determinations are judgment calls within the discretion of the employing agency. We will not disturb a choice of penalty within the agency’s discretion unless the severity of the agency’s action appears unwarranted in light of all factors. That choice does not appear unwarranted here.” “I recognize that Mr. Noland’s performance was satisfactory or better, and indeed exceeded standards in recent years. It was uncontested that Mr. Noland had a good overall history, had a good attendance record, had a good disciplinary record, had good work habits, and got along well with his co-workers.

It is clear that all of these factors ⁵⁶⁶ are in his favor. However, they do not outweigh the severity of what he did.” “It was the testimony of Dr. Phillips that it is never warranted to strike a patient. Chief Allen said the same thing. While Noland’s record was unquestionably good, and would mitigate ordinary misconduct, what management in effect was saying was that even a stellar record was irrelevant based on the facts of the incident.

(For similar reasons, management chose not to impose progressive discipline: it concluded that the offense was serious enough to warrant immediate termination.)” “Indeed, the actions were severe enough so that Mr. No-land’s license was suspended for a year by the Maryland Emergency Medical Service Systems. In the State Personnel Management System statute Vantonly 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’ is a cause for automatic termination. State personnel and Pensions Article § 11-105(8). The statute is a legislative recognition of the severity of this type of misconduct, which no mitigating factors can outweigh, and in which termination should be automatic.

It also makes it clear that it is not unreasonable, arbitrary or capricious for management to terminate for conduct of that nature.” “I also have given my own consideration to the factors specified in [Maryland State Retirement Agency v.] Delambo. Unquestionably, each of the five factors weighs in Mr. Noland’s favor. However, the stubborn fact remains that he twice struck a restrained and handcuffed medical patient, with unwarranted and excessive force. This is not outweighed by the five Delambo factors.

In this case, a reasonable employer could impose the punishment imposed. The punishment fits the crime, and it is clear that the employee was not punished simply because he could be ⁵⁶⁷ punished: he was terminated for extreme misconduct. None of the alternative sanctions would have been appropriate.” 2 A final administrative order was filed separating Noland from his position at the Maryland Aviation Administration and disqualifying him from future employment with the Administration. Noland filed in the Circuit Court for Anne Arundel County, pursuant to the Maryland Administrative Procedure Act, Maryland Code (1984, 2004 Repl.Vol.), § 10-222 of the State Government Article, a petition for judicial review.

Following a hearing, the Circuit Court reversed the administrative decision and remanded the case for further administrative consideration of the appropriate sanction. The reversal was not based upon a judicial holding that any of the administrative findings of fact were unsupported by substantial evidence. Furthermore, the Circuit Court did not hold, as a matter of law, that Noland was not guilty of any misconduct. (Such a legal holding, in light of the administrative record and the applicable regulations, would not be sustainable).

Rather, the Circuit Court’s decision was largely based upon the Court’s view that, in determining the appropriate sanction, the Secretary’s designee gave insufficient consideration to what the court believed were substantial mitigating factors. Thus, according to the Circuit Court, because Noland “was working with the police and came to the scene at the request of the police, he should be afforded similar protection under the law as to the use of force,” and that this was a “factor that ⁵⁶⁸ should have, at the very least, been considered in mitigation.” In ascertaining the “similar protection under, the law as to the use of force,” the Circuit Court relied on language from State v. Pagotto, 361 Md. 528 , 762 A.2d 97 (2000), a case dealing with the sufficiency of the evidence to sustain a police officer’s criminal convictions for involuntary manslaughter and reckless endangerment. The Circuit Court also relied on language from a Supreme Court opinion, cited in Pagotto , concerning whether alleged excessive force by a police officer violated the Fourth Amendment. Furthermore, the Circuit Court indicated that the Secretary’s designee failed to give sufficient weight to the mitigating factors that Noland “was acting in self defense and the defense of others,” which “are recognized defenses in Maryland which may excuse even criminal offenses.” In addition, the Circuit Court stated that “this court finds arbitrary the Secretary’s apparent premise that it always will constitute unwarranted and excessive force if an individual is struck with a ‘closed fist.’ ” (Emphasis in original).

While acknowledging that the Secretary’s designee purported to have considered all of the factors set forth in Maryland State Retirement Agency v. Delambo, supra, the Circuit Court obviously disagreed with the weight which the designee had given to such factors. The court stated: “Nonetheless, he [the Secretary’s designee] found no grounds to mitigate or reduce the maximum punishment— termination of employment. This peremptory dismissal of all factors in Petitioner’s favor, again, appears arbitrary and must be reversed. The Secretary is required to weigh the seriousness of Petitioner’s momentary, highly mitigated, and minor infraction, which caused no injury to anyone and served the apparent needs of public safety and law enforcement, against his 11 years of prior exemplary service.

In this proper legal context and given the Secretary’s approval of prior fact-finding, it is difficult to understand how the ultimate sanction of termination could be appropriate.” The Maryland Aviation Administration appealed to the Court of Special Appeals which, in an unreported opinion, ⁵⁶⁹ affirmed the judgment of the Circuit Court. The intermediate appellate court began its opinion by pointing out that “[j]udicial review of an agency’s factual findings does not permit the Court to make an independent decision on the evidence.” The appellate court then continued: “[o]n the other hand, ‘when reviewing issues of law, ... the court’s review is expansive and it substitutes its judgment for that of the agency,”’ quoting prior Court of Special Appeals’ opinions. The Court of Special Appeals then relied upon its earlier opinion in Maryland State Retirement Agency v. Delambo, supra, saying: “In Maryland State Retirement Agency v. Delambo, 109 Md.App. 683 , 675 A.2d 1018 (1996), this Court stated that before an agency can terminate an employee from his or her employment, that agency must take into consideration the employee’s (1) overall employment history in State service, (2) attendance record during that period of time, (3) disciplinary record at the present agency and at other State agencies as well, (4) work habits, and (5) relations with fellow employees and supervisors. Id. at 691 , 675 A.2d 1018 .

Delambo also held that ‘[t]he agency must prepare findings of fact and conclusions of law that are adequate for judicial review.... ’” “We recognize that ... the Secretary stated that he proceeded to take the Delambo factors into consideration before terminating appellee’s employment and that those factors did not outweigh the seriousness of appellee’s conduct. We hold, however, that one sentence stating that appropriate consideration was given to those factors is not adequate to permit meaningful judicial review.” Like the Circuit Court, the Court of Special Appeals characterized the Secretary’s position as being “that striking a patient with a closed hand will automatically constitute both unwarranted and excessive force,” and the appellate court stated that, while it may “always be unwarranted conduct for a physician or a paramedic to strike his or her patient, that ⁵⁷⁰ does not mean that the force is always excessive under the circumstances, especially where that individual is acting in self-defense.” In the Court of Special Appeals, the Maryland Aviation Administration had relied on MTA v. King, 369 Md. 274 , 799 A.2d 1246 (2002). This Court in King held, inter alia, that judicial review of an adjudicatory administrative decision disciplining a state governmental employee for misconduct, where the sanction imposed was lawful and authorized, does not encompass review to determine whether the sanction was “ ‘disproportionate to the offense’ ” or “disproportionate to [the employee’s] misconduct” or an “abuse of discretion” unless “the disproportionality or abuse of discretion was so extreme and egregious that the reviewing court can properly deem the decision to be ‘arbitrary or capricious.’ ” MTA v. King, supra, 369 Md. at 290-291 , 799 A.2d at 1255-1256 (emphasis in original). The Court of Special Appeals in the present case distinguished King in the following language: “The case at bar is distinguishable from King .

This is not a case in which an individual claims that his or her punishment was disproportional to that of others who committed the same act. We are not comparing appellee’s punishment to punishment imposed upon others.” The Maryland Aviation Administration filed in this Court a petition for a writ of certiorari which we granted. MAA v. Noland, 374 Md. 358 , 822 A.2d 1224 (2003). Noland did not file a cross-petition for a writ of certiorari.

II

We shall first review some of the basic Maryland administrative law principles applicable to cases of this nature, as well as the Court of Special Appeals’ opinion in Maryland State Retirement Agency v. Delambo, supra. Thereafter, we shall address the decisions below in light of these principles. A. About six years ago, in Board of Physician Quality Assurance v. Banks, 354 Md. 59, 67-69 , 729 A.2d 376 , 380-381 ⁵⁷¹ (1999), this Court extensively reviewed the role of a court in reviewing an adjudicatory decision of an administrative agency, stating (some internal quotation marks omitted): “A court’s role in reviewing an administrative agency adjudicatory decision is narrow, United Parcel v. People’s Counsel, 336 Md. 569, 576 , 650 A.2d 226, 230 (1994); it ‘is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.’ United Parcel, 336 Md. at 577 , 650 A.2d at 230 . See also Code (1984, 1995 Repl.Vol.), § 10-222(h) of the State Government Article; District Council v. Brandywine Enterprises, Inc., 350 Md. 339, 349 , 711 A.2d 1346, 1350-1351 (1998); Catonsville Nursing v. Loveman, 349 Md. 560, 568-569 , 709 A.2d 749, 753 (1998).” “In applying the substantial evidence test, a reviewing court decides ‘whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.’ Bulluck v. Pelham Wood Apts., 283 Md. 505, 512 , 390 A.2d 1119, 1123 (1978).

See Anderson v. Dep’t of Public Safety, 330 Md. 187, 213 , 623 A.2d 198, 210 (1993). A reviewing court should defer to the agency’s fact-finding and drawing of inferences if they are supported by the record. CBS v. Comptroller, 319 Md. 687, 698 , 575 A.2d 324, 329 (1990). A reviewing court ‘ “must review the agency’s decision in the light most favorable to it; .. . the agency’s decision is prima facie correct and presumed valid, and ... it is the agency’s province to resolve conflicting evidence” and to draw inferences from that evidence.’ CBS v. Comptroller, supra, 319 Md. at 698 , 575 A.2d at 329 , quoting Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 834-835 , 490 A.2d 1296, 1301 (1985).

See Catonsville Nursing v. Loveman, supra, 349 Md. at 569 , 709 A.2d at 753 (final agency decisions ‘are prima facie correct and carry with them the presumption of validity’).” “Despite some unfortunate language that has crept into a few of our opinions, a court’s task on review is not to ⁵⁷² ‘substitute its judgment for the expertise of those persons who constitute the administrative agency,’ United Parcel v. People’s Counsel, supra, 336 Md. at 576-577 , 650 A.2d at 230 , quoting Bulluck v. Pelham Wood Apts., supra, 283 Md. at 513 , 390 A.2d at 1124 . Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by