Smack v. Department of Health & Mental Hygiene

EYLER, Judge. On February 9, 1998, the Department of Health & Mental Hygiene, appellee, terminated the employment of Stephanie Smack, appellant, a new employee with the Somerset County Health Department. Subsequently, on a petition for judicial review of the administrative decision, the Circuit Court for Worcester County affirmed. Appellant appeals to this Court and contends (1) that the Administrative Law Judge (ALJ) and the circuit court committed legal error in holding that Md.Code (1987), State Personnel & Pensions (State Pers. & Pens.) § 11-106, was not applicable to appellant, and (2) that the termination was based on racial discrimination.

Facts There is no dispute with respect to the relevant underlying facts. On October 8, 1997, appellant was employed by the Somerset County Health Department as a Social Worker I assigned to the Addiction Unit located in Westover, Maryland. Appellant was a new employee, and as such, was subject to a probationary period that would have expired on April 8, 1998. ⁴¹⁶ As part of her duties, appellant assessed substance abuse problems, tested for substance abuse, and provided counseling. Appellant also provided weekly therapy to a group located in Crisfield, Maryland.

The location of the group therapy session in Crisfield was approximately a ten-minute drive from appellant’s office in Westover. Appellant was required to use her personal vehicle to drive to Crisfield for the sessions. On January 29, 1998, appellant was scheduled to meet the group in Crisfield at 2:00 p.m. Flooding had been caused in the area by a major storm described as a “nor’easter.” Appellant left Westover at 1:45 p.m.

When appellant neared the location of the session, she heard someone scream. The unnamed person advised appellant that (1) the street, presumably leading to the location, was under water, and (2) members of the group had not been able to make it because of the water. Appellant observed two vehicles having difficulty getting through a flooded area of the street and determined that her vehicle would not make it. Appellant testified that she “panicked” because of a radio report of a rising tide.

Appellant had no money with her to make a telephone call, and she returned to her Westover office. At that time, appellant obtained the phone number for the facility where the session was to meet and called, but she was unable to get through. Appellant did not report to her supervisor, Gail Lankford, that day. Ms. Lankford, another counselor from the Westover office, and three members of the group did attend the therapy session at the appointed hour.

On January 30, 1998, Ms. Lankford discussed the incident with appellant. On February 3, 1998, Ms. Lankford discussed the incident with Curtis Dixon, head of the County Health Department. Subsequently, Mr. Dixon decided to terminate appellant’s employment. On February 9, 1998, appellant was notified that her employment would be terminated for failing to attend the group session and failing to report her absence to her supervisor. ⁴¹⁷ Pursuant to Md.Code, State Pers. & Pens. § 11-110, appellant appealed the termination to the Office of Administrative Hearings on September 14, 1998.

On March 8, 1999, the ALJ issued a decision affirming the termination of employment. Appellant filed a petition for judicial review in the Circuit Court for Worcester County, and on September 30, 1999, the circuit court affirmed appellee’s decision to terminate appellant’s employment. Questions Presented As rephrased by us, appellant inquires on appeal whether (1) Md.Code, State Pers. & Pens. § 11-106 applies to appellant; and (2) whether the decision to terminate appellant was illegal or unconstitutional based on racial discrimination. For the reasons that follow, we answer both questions in the negative and affirm the judgment of the Circuit Court for Worcester County.

Standard of Review The proceedings before the ALJ were governed by the Administrative Procedure Act, Md.Code (1995 RepLVol. & Supp.1998), State Gov’t §§ 10-201 to 10-226. Our role is the same as that of the circuit court. Consequently, we review the decision of the ALJ, not the decision of the trial court. Pub.

Serv. Comm’n v. Baltimore Gas & Elec. Co., 273 Md. 357, 362 , 329 A.2d 691 (1974); Consumer Protection Div. v. Luskin’s, Inc., 120 Md.App. 1, 22 , 706 A.2d 102 (1998), rev’d in part on other grounds, Luskin’s, Inc. v. Consumer Protection Div., 353 Md. 335 , 726 A.2d 702 (1999), and we pay no deference to the legal conclusions of the ALJ. See Md.Code (1999), State Gov’t § 10-222(h)(3); Baltimore Lutheran High Sch. v. Employment Sec. Admin., 302 Md. 649, 662 , 490 A.2d 701 (1985); Maryland Sec. Comm’r v. United States Sec. Corp., 122 Md.App. 574, 587 , 716 A.2d 290 (1998).

The issues presented in this case are issues of law. The parties do not contest any of the factual conclusions of the ALJ or inferences that may have been derived from those facts. The first issue presented for our review is simply ⁴¹⁸ whether State Pers. & Pens. § 11-106 applies to appellant despite her status as a probationary employee and whether the ALJ and the circuit court committed legal error in concluding that it was not applicable. Discussion 1.

Section ll-106(a), the pertinent subsection, provides: Procedure. — Before taking any disciplinary action related to employee misconduct, an appointing authority shall: (1) investigate the alleged misconduct; (2) meet with the employee; (3) consider any mitigating circumstances; (4) determine the appropriate disciplinary action, if any, to be imposed; and (5) give the employee a written notice of the disciplinary action to be taken and the employee’s appeal rights. The implementing regulation, entitled “Disciplinary Actions Relating to Employee Misconduct,” appears in COMAR 17.04.05.04. Subsections (D) and (E) provide: D. Before an employee may be disciplined for conduct-related reasons, the appointing authority shall: (1) Notify the employee of the misconduct and provide an explanation of the employer’s evidence; (2) Investigate the alleged misconduct; (3) Meet with the employee, unless the employee is unavailable or unwilling to meet; (4) Consider any mitigating circumstances; (5) Determine the appropriate disciplinary action, if any, to be imposed; and (6) Give the employee written notice of the disciplinary action to be taken and the employee’s appeal rights, and inform the employee of the effective date of the disciplinary action. ⁴¹⁹ E. Unless otherwise provided by law, an appointing authority shall take each of the actions required in § D of this regulation within the time limits provided in State Personnel and Pensions Article, § 11-106, Annotated Code of Maryland. Appellant asserts that these provisions were not complied with, a position not challenged by appellee, and because of the noncompliance, reversal is required.

We find no error and agree with the ALJ and the circuit court that appellant’s termination was governed by § 11-303, which provides: Termination of probationary employee. (a) Authorized. — An appointing authority may terminate the employment of a probationary employee. (b) Notice. — Before terminating an employee who is on probation, the appointing authority shall give the employee a notice of termination at least 10 days before the effective date of the termination. (c) Suspension during interim. — An appointing authority may suspend a probationary employee with pay between the date of the notice and the effective date of the termination.

(d) Appeal limited. — A probationary employee may appeal a termination under this section only on the grounds that the termination is illegal or unconstitutional. 1 ^ ⁴²⁰ Statutory Construction In dealing with an issue of statutory construction, our goal is to discern and effectuate the intent of the legislature at the time it enacted the statute. Brown v. Housing Opportunities Com’n, 350 Md. 570, 575 , 714 A.2d 197 (1998). If the statutory language is clear, unambiguous, and consistent with the purposes of the legislation in general and the particular provision being interpreted, our inquiry usually ends at that point. Philip Electronics North America v. Wright, 348 Md. 209, 216-17 , 703 A.2d 150 (1997); Sears, Roebuck & Co. v. Gussin, 350 Md. 552, 561-62 , 714 A.2d 188 (1998).

When, as is the case here, the plain language of the statute fails to reveal a particular intent, we look to the entire statutory scheme and consider the purpose of the particular statute before us. Department of Pub. Safety & Correctional Serv. v. Howard, 339 Md. 357, 369 , 663 A.2d 74 (1995). Additionally, “we seek to discern the intent of the legislature from surrounding circumstances, such as legislative history, prior case law, and the purposes upon which the statutory framework was based.” Philip Electronics, 348 Md. at 217 , 703 A.2d 150 .

Courts also may examine any interpretive regulations promulgated by an administrative agency, giving deference to the agency’s own application. Baltimore & Ohio R.R. Co. v. Bowen, 60 Md.App. 299, 305 , 482 A.2d 921 (1984). Courts must also be cognizant of avoiding an illogical, absurd, or inconsistent result. Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 513 , 525 A.2d 628 (1987)(citing Tucker v. Fireman’s Fund Ins.

Co., 308 Md. 69, 75 , 517 A.2d 730 (1986)); Williams v. State, 329 Md. 1, 15 , 616 A.2d 1275 (1992) (court interprets statutory language in light of full context in which it appears, and in light of external manifestations of legislative intent or general purpose available through other evidence); Richmond v. State, 326 Md. 257, 262 , 604 A.2d 483 (1992)(quoting Cunning ⁴²¹ ham v. State, 318 Md. 182, 185 , 567 A.2d 126 (1989)); Dickerson v. State, 324 Md. 163, 170-71 , 596 A.2d 648 (1991). Statutory Scheme An appellate court attempts to divine legislative intent from the entire statutory scheme, as opposed to scrutinizing parts of the statute in isolation. Williams, 329 Md. at 15-16 , 616 A.2d 1275 . Accordingly, we briefly explain the relevant statutory scheme.

The employment categories in the State Personnel Management System are (1) skilled service, § 6-401, (2) professional service, § 6-402, (3) management service, § 6-403, (4) executive service, § 6-404, (5) special appointees, § 6-405, and (6) temporary employees, § 6-406. Each employee is required to complete a six-month probationary period as the final step in an employee’s initial appointment to a position in the State Personnel Management System. § 7-402. The parties agree that appellant was a probationary employee and her position was such that she would have been in the professional service category if a permanent employee. To successfully complete a probationary period, an employee is required to demonstrate proficiency in the assigned duties and responsibilities of the position to which the employee is appointed.

Section 7-402(c). An appointing authority may take disciplinary action against or terminate the employment of a probationary employee in accordance with Title 11 [of the State Pers. & Pens, article]. Section 7-405. Title 11 of the State Personnel and Pensions Article is entitled “Disciplinary Actions, Layoffs, and Employment Terminations in State Personnel Management System.” Of relevance here are subtitle 1, “Disciplinary Actions” and subtitle 3, “Employment Separations and Terminations.” The language of both the title and subtitles indicate that “disciplinary actions” and “employment terminations” are distinct concepts. ⁴²² Subtitle 1 is labeled “disciplinary actions” and applies to all employees in the State Personnel Management System within the Executive Branch except temporary employees.

See § 11-102. Thus, subtitle 1 appliés to probationary employees. The disciplinary actions permitted against any employee are set forth in § 11-104 and include 'a written reprimand, forfeiture of annual leave, and suspension. Disciplinary action also includes termination of employment.

See § 11-104(7). Section 11-105 enumerates actions providing cause for automatic termination of employment. Section 11-106 outlines the procedure required before taking any disciplinary action related to employee misconduct. Section 11-107 identifies actions which do not constitute disciplinary action, which include counseling memoranda, leave without pay, and restitution.

Subtitle 3 of Title 11 is entitled “Employment Separations and Terminations,” and applies to “all nontemporary employees in the State Personnel Management System.” § 11-301. Section 11-303 specifically addresses the termination of a probationary employee. Employees in the management service, executive service, or special appointment categories are “at will,” and their employment may be terminated for any reason, § 11-305. The appeal rights of those employees are limited to an assertion that the termination was illegal or unconstitutional, § 11— 113(b)(2)(ii).

If a probationary employee does not successfully complete the probationary period and the employment is terminated, such employee’s appeal rights are limited to an assertion that the termination was illegal or unconstitutional. Section ll-303(d). By contrast, employees in the skilled or professional service categories are not subject to such limited appeal rights. Section 11-109.