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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 02142 SEPTEMBER TERM, 2000 ______________________________

JOHN R. DANAHER v. DEPARTMENT OF LABOR, LICENSING & REGULATION ______________________________ _ Hollander, Krauser, Alpert, Paul E. (Retired, Specially Assigned), JJ. ______________________________ Opinion by Hollander, J. ______________________________ Filed: November 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? Did DLLR violate appellant's rights by ignoring the legal strictures of Title Eleven of the State

II.

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 SUMMARY1 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.2 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

As we indicated, there was no administrative hearing. As a result, no evidence was presented at the agency level. Moreover, the record does not include appellant's personnel file or other information as to his date of hire, job responsibilities, or performance evaluations. Therefore, we have relied on the facts as presented by the parties, most of which are not disputed. Donald Crumble, Director of the Office of Personnel and Training for DLLR, said in an affidavit of April 15, 2000, submitted to the circuit court, that appellant held this position since January 1997, not January 1998. The date discrepancy is not significant, however. 2
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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 It

Harassment Policy," which became effective on July 1, 1997.

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 "[s]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 the Office of Personnel and Training, regarding a "Lewd Statement by Rick Danaher." According to Ms. Carroll's memorandum, Sheena Thomas and Andrea, whose last name was not known to Ms. Carroll, were "within the hearing distance..."3 when appellant made his offensive remarks on May 15, 1998. part: On the afternoon of Friday, May 15, 1998,....I went to Ms. Carroll stated, in

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We are advised that Andrea's full name is Andrea Yeates. 3

the fourth floor snack room to make a purchase. ...Richard Danaher, started a conversation with me and made a colorful statement. The conversation started out discussing voting preferences and continued like this: As I was paying for my purchase at the coffee mug next to Andrea's cubicle, Mr. Danaher asked, "Who are you?" I said to him, "Rick, I was in your office for a meeting not too long ago, you don't remember who I am? If you don't remember my name, you should remember my face." Rick said to me, "I am not good with faces; I'm better with butts." I put up my hand up as if to say stop and said, "Hold it right there. Don't even go there." I then told Rick my name and that I worked in Personnel. Rick asked me, "Where do you work in Personnel?" I said to him, "I work with Sharon Ball." Rick put his hand to his head and said, "Oh no! I stay in trouble. Another one of those social service people." (Italics and underline in original). Ms. Carroll added that the

conversation occurred within "hearing distance" of Sheena Thomas and an individual named Andrea, whose last name she did not know. But, Ms. Carroll was not "sure" if they heard what had been said. In addition, Meriel Newsome, another DLLR employee, sent an undated memo to Sharon Ball, the "Deputy Director/Employer

Relations Manager," regarding "Inappropriate Statements Made by Rick Danaher" on May 15, 1998. named Sheena was also present. She indicated that an employee Ms. Newsome stated, in part:

On Friday, May 15, 1998, ... Sheena [Thomas] ... introduced me to Mr. Rick Danaher.... ... I mentioned [in my conversation with Danaher] 4

that in Canada the sales tax is really high ... however the health care system is totally free. He made the statement "You must be a democrat, you have to be because you are black[.]"... I then stated that I always had very good health care because my parents have good jobs and that I felt that everyone is entitled to good healthcare [sic]. Then Rick made a joke about my having Polish ancestry which I didn't understand. He explained to me that there was a stereotype about Polish people being hypochondriacs. Rick asked me if I had ever seen a certain television show and I told him "No." He said to me "You need to stop watching so much B.E.T. (Black Entertainment Television)." I told him that I don't watch very much television at all.... Sheena then mentioned, to Rick, that I was elected "Miss Coppin" and showed Rick the Ebony Magazine so that he could see my picture. He stated that "I can't tell which one you are because you all look alike." Rick then asked me if I had any naked pictures of myself and I told him no. He then made a joke, saying "Do you want to buy some?" Rick also, in my presence, told Sheena that she needs to get married because she is ruining her life since she had two children and wasn't married. She told Rick that she her [sic] life was not ruined. Rick said "Not necessarily because you are not young but the Bible says that people should marry if they are going to have children." Rick then said most of those girls having babies are very young. I felt that this comment was racially motivated. I got the feeling that Rick wanted me to respond in some way because he made all of these inappropriate statements twice to make sure that I heard him clearly. I didn't take any of these statements personally because I don't know Rick very well. However, I don't feel the comments he made were in good taste. I felt that his racially stereotypical comments could make someone very angry. I also felt that the question he asked me about ... owning naked pictures was belittling and sexist. In an undated memorandum, Melissa Ellen, Personnel Clerk, reported to Crumble that she 5 witnessed appellant engage in

inappropriate touching of Trudy Meads, Danaher's Administrative Assistant.4 in part: They [i.e., Trudy Meads and appellant] were about to leave [my cubicle] when Mr. Danaher got behind Trudy (who is about 6 months pregnant) and put his hand underneath her blouse, and I really did not pay any attention to this action until I heard this popping noise which I realized was the elastic of her pants. This was in the middle of the aisle in my office because I have an open cubicle and there was also another person in the office at the time. This was a very open scene. On May 18, 1998, Crumble sent a memorandum to Thomas Crowley, Chief Financial Officer.5 Crumble said: At the time, Ms. Meads was pregnant. Ms. Ellen wrote,

In less than one month, Mr. Danaher has managed to offend another female member of my staff. Ms. Denise Carroll of my Employee Relations Unit was wantonly offended when Mr. Danaher made a verbal statement to her indicating that he "was not good at remembering faces, but good at remembering BUTTS!" Mr. Danaher also makes reference that my Deputy Director is a "Social Worker" and that shows a lack of respect. I feel that we can no longer tolerate this kind of attitude from a senior staff member who evidently has no regard for the feelings of female employees in this Department. I recommend that Mr. Danaher be terminated immediately under the circumstances of the attached memorandum from Ms. Denise Carroll dated May 15, 1998 and the written testimony from Ms. Lisa Allen [sic] dated April 28, 1998. At about 3:00 p.m. on May 19, 1998, Danaher was orally advised

Based on the text of Ms. Ellen's memorandum, it appears that it was written in late April 1998. The memorandum dated May 18, 1998, from Crumble to Crowley refers to complaints by Lisa Allen and Denise Carroll. We assume that Crumble's reference to Lisa Allen was a mistake, and that he actually meant Melissa Ellen. 6
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about the allegations of inappropriate workplace behavior that had been lodged against him. from the Secretary of By 4:00 p.m. on that date, in a letter DLLR, appellant was terminated, with

prejudice, effective June 3, 1998.

Citing

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