Danaher v. Department of Labor11/27/2002
This appeal is rooted in the discharge of John Richard Danaher, appellant, who was terminated from employment in 1998 by the Maryland Department of Labor, Licensing and Regulation ("DLLR," the "Department," or the "Employer"), appellee, after approximately twenty-five years of State service. Following complaints by three DLLR employees, appellant was fired because of "unjustifiably offensive conduct toward fellow employees."
The Employer discharged appellant, with prejudice, about one hour after advising him of the allegations of misconduct. Based on procedures applicable to an at-will, "management service" employee in the Executive Branch of State government, appellant was not afforded a hearing with the Office of Administrative Hearings ("OAH"). Thereafter, Eugene Conti, Jr., the Secretary of DLLR, denied Danaher's appeal, on the ground that Danaher failed to identify an illegal or unconstitutional ground with respect to the termination, as required by 17.04.05.01 of the Code of Maryland Regulations ("COMAR").
Appellant subsequently sought review of DLLR's action in the Circuit Court for Baltimore County. By order dated November 13, 2000, the circuit court affirmed. From that order, appellant noted this appeal, and presents the following questions for our review:
I. Did the Department fail to reclassify appellant as either a skilled or professional service employee after restructuring his job position, thus denying him appropriate administrative review of his termination?
II. Did DLLR violate appellant's rights by ignoring the legal strictures of Title Eleven of the State Personnel and Pensions Article, requiring the appointing authority to investigate, consider mitigation, and meet with the employee within thirty days prior to termination?
III. Did DLLR arbitrarily and capriciously classify this termination as one "with prejudice", which is reserved for only those proven actions that are so egregious as to not merit employment in any capacity with the State?
For the reasons that follow, we shall vacate the judgment and remand for further proceedings.
FACTUAL SUMMARY
As noted, Danaher was an employee of the State for twenty-five years. At one time, he served as the Director of Finance of DLLR, a position within the management service of the State Personnel Management System. According to appellant, his duties changed considerably on January 6, 1998, when he was reassigned to the Accounting Unit as a Fiscal Administrator V. As a result of that reassignment, Danaher claims he no longer had direct responsibility for the oversight and management of personnel or financial resources. Nevertheless, it is clear that, at the time of his discharge, appellant was a management service employee.
The Record Extract shows that Danaher and others attended "Sexual Harassment Training" on March 19, 1996, for a total of three hours. Moreover, DLLR has a written, one-page "Sexual Harassment Policy," which became effective on July 1, 1997. It states that the Department is "committed to creating a workplace void of all unlawful discrimination and . . . free from harassment or intimidation based upon sex." The policy lists examples of unacceptable conduct, including suggestive remarks, gestures, or jokes of a sexual nature, and intentional physical behavior. Further, the policy provides that " wift and appropriate disciplinary actions up to and including termination will be taken against any DLLR employee found to have sexually harassed any other DLLR employee."
By memorandum of May 15, 1998, Denise Carroll, an employee in DLLR's Employee Relations Unit, wrote to Donald Crumble, DLLR's Director of
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