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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2588 September Term, 2003

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES v. AUDREY NEAL

Hollander, Eyler, Deborah S., Eldridge, John C. (Ret'd, Specially Assigned), JJ. Opinion by Eyler, Deborah S., J.

Filed: December 30, 2004

Audrey Neal, the pro se appellee, was automatically terminated from her employment by the Department of the Public Safety as and a

Correctional

Services

("Department"),

appellant,

Correctional Dietary Officer II, at the Maryland Correctional Institution for Women ("MCIW") in Jessup. The termination followed an incident in which Neal placed her hands around the throat of an inmate. The termination was approved by the Secretary of the

Department. Neal appealed to the Secretary of the Department of Budget and Management ("DBM"), who referred the matter to the Office of Administrative Hearings ("OAH") for a contested case hearing before an Administrative Law Judge ("ALJ"). The ALJ issued a written

decision rescinding the termination, reinstating Neal, and imposing a 30-day suspension without pay. decision of the DBM. In the Circuit Court for Anne Arundel County, the Department brought an action for judicial review of the final agency decision. The court entered a judgment affirming the ALJ's decision. On appeal, the Department presents two questions for review, which we have rephrased: I. Did the circuit court err by allowing Neal to participate in the action for judicial review proceeding? Did the ALJ improperly substitute her judgment for that of Neal's appointing authority by changing the discipline imposed by the appointing authority? The ALJ's decision was the final

II.

For the following reasons, we shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS
On October 5, 2002, in the mid-morning, Neal and four inmates, including Kelly Ramsburg, were preparing meal trays in a small area in the MCIW dining room. Neal several times. As Ramsburg was working, she bumped into

Neal told Ramsburg to slow down and be more

careful. Ramsburg apologized, but kept bumping into Neal, giggling each time. After several such bumping incidents, Neal put her

hands around Ramsburg's neck, in a choking gesture, and said words to the effect of, "If I choked you, would you think it was funny or an accident?" Neal's choking gesture was seen by another inmate, Fannie Penn, who was standing about 100 feet away. Later that morning, Penn went to speak to Lieutenant Deborah Warren about another matter. In the course of that meeting, Penn

told Lt. Warren that she had witnessed Neal put her hands around Ramsburg's neck, in a choking manner. Ramsburg then came into Lt. Lt. Warren

Warren's office and told her about the incident.

approached Neal and asked her about the incident, but Neal would not discuss it. Lt. Warren immediately reported the incident to Lt. Warren

Captain Jacqueline Craig, the day shift supervisor.

made a written report of the information she had been given.

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Capt. Craig met with Ramsburg and questioned her about the incident. Ramsburg said that Neal had been "playing around" and

had put her hands on her and attempted to choke in a "joking manner." Ramsburg had "laughed off" the gesture, and did not take The choking gesture

it to mean that Neal intended her any harm. did not cause Ramsburg any harm. neck and did not see any

Capt. Craig inspected Ramsburg's or marks. She also took

bruises

photographs of Ramsburg's neck, and sent her to the infirmary for a medical check, to be "on the safe side." Capt. Craig directed

Ramsburg to write a statement about the incident, which she did. Capt. Craig spoke to Penn, who repeated that she had seen Neal place her hands around Ramsburg's throat. From her position, Penn

could not see the expression on Neal's face, and her view of Ramsburg was partially blocked. surprised, however. incident. Capt. Craig interviewed Neal, who was cooperative. Neal She thought Ramsburg looked

Penn also gave a written statement about the

acknowledged that, after Ramsburg bumped into her several times and giggled, she put her hands on Ramsburg's throat. At Capt. Craig's

request, Neal prepared a written report of the incident, which was several pages long. She wrote that she had placed her hands near

Ramsburg's throat, in a "choking motion," and had said, "[I]f I choked you would you think it was funny or an accident?" Neal

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further wrote that she did not apply any pressure to Ramsburg's neck, even though she did touch her neck. Nurse Campbell examined Ramsburg and did not find any bruises or marks. She prepared a brief report.1

That same day, Capt. Craig prepared a memorandum to Chief Marcia Fair about the "alleged choking incident." She recounted

what had been reported to Lt. Warren by Penn and Ramsburg and what Neal had told her had happened. Capt. Craig stated,

In conclusion, I find that Sgt Neal may not have acted in a hostile or malicious manner when she placed her hands on or near the throat of inmate Kelly Ramsburg. Both inmate Ramsburg and Sgt Neal's written statement are consistent in that regard[], however Neal's own statement clearly indicates that she acted in a very extreme, unprofessional and unruly manner. I also find that Sgt Neal was very negligent in controlling inmate Ramsburg. Sgt Neal contributed to inmate Ramsburg's disruptive, negative and escalating behavior by failing miserably to take the appropriate disciplinary action. The reports and statements about the incident were forwarded to Marsha Maloff, Warden of MCIW. Warden Maloff has been employed

by the Department for over 30 years, and has been in a management position since 1979. At the time of the incident, she had been

warden of MCIW for three and one-half years. Warden Maloff was not familiar with Neal, because Neal only had started working at MCIW on August 7, 2002, about two months before the incident. Warden Maloff considered the incident to be

"a serious violation of standards that the Standards call for

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Nurse Campbell's first name is not in the record. 4

termination of employment," and therefore obtained Neal's personnel records from the Maryland House of Corrections ("MHC"), where Neal had worked before starting at MCIW, and from Patuxent Institution ("Patuxent"), where she had worked prior to then, to review her disciplinary history. Warden Maloff prepared a report, on October 17, 2002,

detailing the contents of Neal's personnel record.

The records

showed an employment start date in 1999, as a Correctional Dietary Officer II, at Patuxent.2 In March 2002, Neal was promoted to

Correctional Dietary Supervisor at MHC. She was then rejected from that position during the probationary period, and demoted to her former position. Because there was no opening for a Correctional

Dietary Officer II at MHC, Neal was transferred to MCIW, where there was such an opening. In addition to the rejection on probation, Neal's record showed, for the period of 12 months prior to October 5, 2002, the following:

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