Parham v. Department of Labor, Licensing & Registration

KENNEY, J. Michelle Parham, appellant, filed a claim for unemployment benefits following the end of her employment with Mid Atlantic Baking Co., LLC (“Mid Atlantic”). A Claims Specialist from the Department of Labor, Licensing and Regulation (“DLLR”) granted Parham benefits on July 19, 2007. Mid Atlantic appealed, and a hearing was held on August 21, 2007. On August 30, 2007, the DLLR hearing examiner found that Parham had left Mid Atlantic’s employment voluntarily and, therefore, was not entitled to unemployment benefits.

She appealed to the DLLR Board of Appeals (“the Board”), which adopted the hearing examiner’s findings of fact and affirmed his decision to deny her benefits. The Circuit Court for Baltimore City affirmed the decision of the Board on July 1, 2008. Parham appeals that decision, raising one question, which we have reworded as follows: 1 Was the hearing examiner’s finding and conclusion that Parham voluntarily quit her job, which was adopted by the Board, supported by competent, material, and substantial record evidence? For the following reasons, we shall reverse the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND Parham was employed at Mid Atlantic from January 31, 2007, through April 14, 2007. During this period she missed three days of work: March 5, April 11 and April 12. On April 14, 2007, she returned to work for her next scheduled shift following the April 11 and 12 absences. After Parham “clocked in,” Barbara Wolferman, the “manager” on duty, asked to talk with her.

The substance of this conversation, ⁶⁰⁸ which is the heart of this matter, is disputed. What is not in dispute is that, when the conversation ended, Parham left the premises without “clocking out” and did not contact Mid Atlantic again. On June 19, 2007, a Claims Specialist from DLLR determined that “insufficient information [had] been presented to show that the claimant’s actions constituted misconduct in connection with the work” and that “the circumstances surrounding the separation [did] not warrant a disqualification under section 8-1002 [2] or 8-1003 [3] of the Maryland Unemployment Insurance Law.” Mid Atlantic appealed the Claim Specialist’s determination on August 3, 2007. The notice of a hearing on the appeal, sent to Parham on August 7, 2007, stated that the issues on appeal were: “Whether the claimant’s separation from this employment was for a disqualifying reason within the meaning of the MD Code Annotated Labor and Employment Article, Title 8, Sections 8-1001 (voluntary quit for good cause), [4] 8-1002- ⁶⁰⁹ 1002[.]1 [5] (gross/aggravated misconduct connected with the work) or 8-1003 (misconduct connected with the work).” The notice also stated that “[e]ach Party should arrange for all necessary -witnesses to attend the hearing, and for all necessary documents to be presented at the hearing,” and, under the heading “Instructions for Telephone Hearings,” that “[a]ny evidence [parties] wish the hearing examiner to consider must be received by the Appeals Division at least five working days prior to the hearing.

Copies must be sent to other parties.” A telephone hearing was set for August 21, 2007. On August 16, 2007, a Mid Atlantic representative sent to DLLR a “Fax” captioned “Exhibits Attached,” stating that it “would ⁶¹⁰ like to submit the attached documents as exhibits for the hearing.” The attached documents included a section of the applicable union contract dealing with the probationary status of new employees and two forms related to Parham’s separation from the company, titled “Employee Disciplinary Report” (“EDR”) and “Employee Hire and Change Report” (“EHCR”). The EDR, dated April 11, 2007, 6 described the “Nature of Incident” as “Unexcused Absence.” Under “Facts of the Incident” was written: “Said her legs hurt-won’t be in. (April 11, 2007).

Called 4-12-07 said she won’t be in.” Under the heading “Action to be Taken,” the box for “Termination” was marked. Next to “Signature of Supervisor,” it was signed “Barbara Wolferman.” The EHCR, dated April 24, 2007, described the “Change(s)” as “Quit” with the following under “Remarks:” “Job Abandonment Was Ask [sic] To Call Manager Refuse For No Reason And Walk Out.” It was signed by “Donald A. Kauffman” as “Dept. Head” and “Bill Hogan” as “Plant Manager.” During the hearing on August 21, 2007, Mid Atlantic presented two witnesses: Erica Stokes, a human resources coordinator for Mid Atlantic, and Kauffman. Neither was present when Parham left work on April 14.

Stokes testified that Parham was instructed, on April 12, to speak with Kauffman about her absenteeism when she returned to work. 7 She also testified that she was not present on April 14 but that her records showed that Parham was written up for quitting “because she walked out without punching out on April 14th.” In her testimony, Stokes referred only to the EHCR and Parham’s timecard. She did not refer to the EDR or indicate that she had discussed the incident with Wolferman directly. ⁶¹¹ Kauffman testified that he learned of the incident on April 15, 2007, when he returned to work. He received the write-up for Parham’s absences of April 11 and 12, 2007, and talked to Wolferman about her April 14 discussion with Parham. He testified: [T]hat next day when I came to work, the 15th, that’s when [Wolferman] had told me that [Parham] had come into work, and that she had words with her saying that she did not, you know, like what was, you know, she had discussed the absenteeism of the 11th and 12th with her, and she wasn’t happy with that.

So [Wolferman] wrote her up and wanted [Parham] to sign it. She refused. There’s no signature on the write-up. She refused to sign it.

At that point, [Parham] had left the building. She didn’t even punch out. She just left the building and she was instructed that she needed to talk to me before she came back to work. [8] Parham’s testimony at the hearing directly contradicted Stokes and Kauffman’s testimony that she was told to call Kauffman. Parham testified: Barbara told me that I had to call out and Don said I couldn’t operate so she had to let me go.

So I just left. What was I supposed to do-stand there and disrespect the lady or argue with her? I had to leave the building. She also stated, “No one told me to call anyone. [Wolferman] just told me to leave the building.

That was that.” In deciding the matter against Parham, the hearing examiner found: .... When [Parham] arrived for work on April 14th, she was told by her supervisor that she must report to the manager, Donald Kauffman. [Parham] never reported to Mr. Kauffman but left the premises without punching off the time clock. [Parham] was not heard from after that time, although work was available for her had she continued to report for her next scheduled workday. The manager, ⁶¹² Mr. Kauffman did not have a conversation with [Parham] to determine the circumstances for her absences and had not made a determination whether or not he should exercise the employer’s right to terminate the claimant’s employment within the probationary period. Finding that Parham had failed to present sufficient evidence that the quit was for either good cause or due to a valid circumstance, the hearing examiner concluded that Parham had voluntarily quit and reversed the determination of the Claims Specialist, thereby denying Parham unemployment benefits under Lab. & Empl § 8-1001.

Parham appealed the hearing examiner’s decision to the Board, which, upon review of the record, “adopted” the findings of fact and conclusions of law of the hearing examiner. The Board affirmed the decision of the hearing examiner, denying Parham unemployment benefits. Parham then sought judicial review in the Circuit Court for Baltimore City. The Board opted to participate as an appellee pursuant to Lab. & Emp. § 8-512(a)(3). 9 The Office of the Attorney General, representing the Board, filed a response and informed Mid Atlantic that if it wished to participate in the appeal it had thirty days to file a response.

No response was filed by Mid Atlantic. The circuit court affirmed the decision of the Board. This appeal followed. STANDARD OF REVIEW “When reviewing an administrative agency decision, our role ‘is precisely the same as that of the circuit court.’ ” Tabassi v. Carroll County Dep’t of Soc.

Servs., 182 Md.App. 80, 85 , 957 A.2d 620 (2008) (quoting Howard County Dep’t of Soc. Servs. v. Linda J., 161 Md.App. 402, 407 , 869 A.2d 404 ⁶¹³ (2005) (citation omitted)). We review the administrative decision itself and not the decision of the circuit court. Id.

Lab. & Empl. § 8-512(d) establishes the scope of review of a final decision of a Board of Appeals. It provides: In a judicial proceeding under this section, findings of fact of the Board of Appeals are conclusive and the jurisdiction of the court is confined to questions of law if: (1) findings of fact are supported by evidence that is competent, material, and substantial in view of the entire record; and (2) there is no fraud. In reviewing an administrative action, the Court of Appeals has said that “[a] court’s role 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 v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226 (1994). In addition, the Court of Appeals, quoting its decision in United Steelworkers v. Bethlehem Steel, 298 Md. 665, 679 , 472 A.2d 62 (1984), stated that “fa] reviewing ‘Court may not uphold the agency order unless it is sustainable on the agency’s findings and for the reasons stated by the agency.’ ” United Parcel, 336 Md. at 577 , 650 A.2d 226 .

This Court, in Dept. of Economic & Empl. Dev. v. Taylor, 108 Md.App. 250, 261-262 , 671 A.2d 523 (1996), aff'd, DLLR v. Taylor, 344 Md. 687 , 690 A.2d 508 (1997), stated: Our review of the Board’s findings of fact is deferential. In the absence of fraud, our inquiry is whether the findings are supported by substantial evidence and are reasonable, not whether they are right. Bulluck v. Pelham Wood Apartments, 283 Md. 505, 515 , 390 A.2d 1119 (1978).

We examine the agency’s findings of fact to determine whether they are supported by “substantial evidence” in light of the record as a whole-that is, whether a reasoning mind could have made those findings from the evidence adduced. Singletary v. Maryland State Dep’t of Public Safety and Corr. Services, 87 Md.App. 405, 416 , 589 A.2d 1311 (1991). ⁶¹⁴ DISCUSSION This case presents the narrow question of whether the hearing examiner’s finding and conclusion that Parham voluntarily quit her job, which was adopted by the Board, was supported by competent, material, and substantial evidence and was reasonable. Parham argues that the decision violates her right to due process of law.

She states: In the case at bar, the only factual finding bearing on [her] intent in leaving Mid Atlantic’s building on April 14 is that she “was told by her supervisor that she must report to the manager, Donald Kauffman” but did not do so and instead walked out of the building. [ ] The only evidentiary basis for this finding is Kauffman’s testimony that [she] “just left the building [on April 14] and she was instructed to talk to me before she came back to work.” This hearsay evidence was accepted for the truth of the matter asserted: that someone told Kauffman that [she] was told when she returned to work on April 14 to report to Kauffman, but she instead left the building. The Board first argues that Parham’s arguments “were not preserved for appellate review,” and, therefore, we should decline to consider them: Ms. Parham argues for the first time on appeal before this Court that the Hearing Examiner’s decision was based upon unreliable hearsay and, therefore, the Hearing Examiner violated her due process rights. [ ] First, during the hearing, Ms. Parham did not object to the testimony she now identifies as hearsay. Second, Ms. Parham did not raise this issue in her appeal of the Hearing Examiner’s decision to the Board, which never had the opportunity to consider it. [] Accordingly, this argument is foreclosed from appellate review. See [Department of Economic & Employment Development v.] Owens, 75 Md.App. [472,] 477, 541 A.2d 1324 [(1988)].

Arguing that “[t]he issue of whether the Board’s decision was supported by sufficient evidence is preserved,” Parham states: ⁶¹⁵ As hearsay is generally admissible in an administrative hearing, there was little reason for [her] to have noted an objection, even if she had known as a pro se claimant to do so. But the question of admissibility is very different from whether the total quantity of evidence considered by the hearing examiner and Board of Appeals is sufficient to constitute substantial evidence and comport with due process Parham cites Maryland Dept. of Human Res. v. Bo Peep Day Nursery, 317 Md. 573 , 565 A.2d 1015 (1989), cert. denied, Cassilly v. Maryland Dep’t of Human Res., 494 U.S. 1067 , 110 S.Ct. 1784 , 108 L.Ed.2d 786 (1990), where, she states, the Court of Appeals noted the distinction between objecting to the admissibility of hearsay evidence and arguing “that hearsay was both so unreliable and so pervasive as to undermine the substantiality of the evidence” supporting the agency decision. According to Parham: DLLR’s proposition also runs counter to the thrust of Md.Code Ann., Labor and Employment Article § 8-5A-12(d)(1) (2008), which provides that the Court shall review Board decisions for whether its “findings of fact are supported by evidence that is competent, material, and substantial in view of the entire record.” It is the challenge to the underlying basis of the Board’s decision, not admissibility, that Ms. Parham has raised here, asking if the Board’s decision was supported by substantial evidence where the sole evidentiary basis of the decision was Kauffman’s rendition of