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Smack v. Department of Health and Mental Hygiene11/18/2003
Presented in this case is the issue whether termination of a probationary employee, for whom cause for termination may exist and of which the probationary employee has been apprised as the basis for the termination, may proceed without complying with Maryland Code (1987, 1997 Replacement Volume) § 11-106 of the State Personnel and Pensions Article. Stated differently, the issue is whether a termination "related to employee misconduct," occurring during an employee's probationary period, a "disciplinary action" within the meaning of § 11-106, is subject to the requirements of that provision. The trial court determined that the probationary employee could be terminated without regard to § 11-106. The Court of Special Appeals agreed and, therefore, affirmed. Smack v. Department of Health and Mental Hygiene, 134 Md. App. 412, 759 A. 2d 1209 (2000). We issued the writ of certiorari to review this important question. 362 Md. 359, 765 A2d 142 (2001).
The facts out of which the present controversy arose are not in dispute. At the time of her termination, the petitioner, Stephanie Smack, was a probationary employee of the Somerset County Health Department. See § 7-402 of the State Pensions and Personnel Article. Having been employed on October 8, 1997 as a Social Worker I and assigned to the Addiction Unit, her probationary period would not have expired until April 8, 1998. § 7-402 (a).
The petitioner's duties required her to conduct weekly group therapy sessions in Crisfield, Maryland. The group therapy session scheduled for January 29, 1998 was to begin at 2:00 p.m. On that day, there was flooding in the area, the result of a "nor'easter," as the major storm causing it was described. The petitioner's supervisor and three of the group members nevertheless were able to get to the group session and therefore, were present. The petitioner did not attend the group therapy session.
According to the petitioner, she left her office at approximately 1:45 p.m., the location of the group therapy session being approximately a ten-minute drive. When the petitioner approached the location of the session, she was told by an unnamed person that the street leading to the group therapy location was under water and that members of the group had not been able to make it because of the flooding. The petitioner also observed two vehicles having difficulty traversing the flooded street, and a radio broadcast reported rising tides. As a result, she determined that her car could not make it through the flooded streets. Consequently, she returned to her office, from where she called, without success, the facility where the group therapy session was to be held. The petitioner stated that she did not call before because she had neither money for a telephone call nor a cell phone.
Following discussions with her supervisor and the head of the Agency over the next several days, the petitioner was terminated on February 9, 1998. She was told that it was for failing to attend the group session and failing to report her absence to her supervisor.
The petitioner appealed the termination pursuant to State Personnel & Pensions Article, § 11-110. At the hearing before the Administrative Law Judge, she complained that the respondent had failed to follow the procedure for "taking ... disciplinary action related to employee misconduct..." prescribed by § 11-106. The respondent conceded the point, but it argued that the section was inapplicable to the termination of a probationary employee. The respondent submitted that such terminations are not firings for "misconduct." The Administrative Law Judge agreed and, subsequently affirmed the decision to terminate the petitioner's employment. The pet
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