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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 00763 September Term, 2010

SANDRA PERRY v. DEPARTMENT OF HEALTH AND MENTAL HYGIENE, WICOMICO COUNTY HEALTH DEPARTMENT

Zarnoch, Wright, Thieme, Raymond, G., Jr.
(Retired, Specially Assigned), JJ.

Opinion by Thieme, J.

Filed: October 27, 2011

Appellant, Sandra Perry, appeals the May 4, 2010, Memorandum Decision and Order of the Circuit Court for Wicomico County, dismissing her administrative appeal of an adverse employment action implemented by the Wicomico County Health Department (WCHD). In her timely appeal, appellant raises one question for our review which we have rephrased slightly: Did the circuit court err in granting WCHD's motion to dismiss, thereby denying appellant's request for judicial review on the merits of her grievance appeal? For the reasons set forth below, we shall affirm the judgment of the circuit court holding that administrative mandamus was the appropriate vehicle to invoke the original jurisdiction of the circuit court, but that mandamus does not lie in the instant case.

FACTUAL AND PROCEDURAL HISTORY Appellant was employed by WCHD as an Agency Procurement Associate II. In January 2009, appellant applied for a position as an Agency Procurement Specialist II.1 Shortly thereafter she was notified, along with the other applicants for the position, that no one met the minimum qualifications for the promotion. The position was reclassified at the Trainee Level. On January 6, 2009, appellant indicated that she would like to be considered

The State has argued based upon language in appellant's original appeal and grievance form, that appellant never actually applied for the position to which she claims entitlement. Based upon the arguments presented at oral argument as well as the findings of the circuit court set forth in its Memorandum Opinion and Order, we are persuaded that appellant did, in fact, submit an application for the position of Agency Procurement Specialist II.

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for the position at the Trainee Level. The Trainee level position was later filled by another applicant. On April 15, 2009, appellant was notified that she was being laid off from WCHD. In conjunction with the Department of Health and Mental Hygiene (DHMH), WCHD worked with appellant to identify reassignment opportunities. Appellant accepted a lateral position as an Agency Procurement Associate II at Deer's Head Center. Appellant's reassignment to Deer's Head Center commenced on July 1, 2009. On July 2, 2009, appellant filed a grievance challenging the denial of her application for a promotion to the position of Agency Procurement Specialist II. On July 17, 2009, appellant received a response from WCHD indicating that a hearing was being scheduled pursuant to State Personnel and Pension Section 7-201. On August 10, 2009, an appeal hearing was conducted before Lori Brewster, the Health Officer of the WCHD. Ms. Brewster issued a written decision on August 17, 2009, notifying appellant that her appeal was being denied on the basis that there was nothing illegal or unconstitutional alleged in her appeal. As a result of Ms. Brewster's decision, appellant filed a petition for judicial review under Maryland Rule 7-401 seeking administrative mandamus in the Circuit Court for Wicomico County on September 16, 2009. The only issue before the circuit court was whether appellant had alleged sufficient facts to entitle her to a full evidentiary hearing.

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WCHD filed a motion to dismiss appellant's appeal on October 22, 2009. On November 2, 2009, appellant filed an opposition to WCHD's motion to dismiss. WCHD filed a reply to appellant's opposition on March 31, 2009. The circuit court heard oral argument on April 7, 2010, and granted appellant leave to file a subsequent response by April 19, 2010. On April 26, 2010 the court issued a Memorandum Opinion and Order granting WCHD's motion to dismiss. In its opinion, the circuit court concluded that appellant had failed to allege sufficient facts to support the conclusion that she was deprived of a substantial right by WCHD's actions. This appeal followed. Additional facts will be provided as necessary to support the analysis of the issues.

ANALYSIS Appellant contends that under Maryland Rule 7-401 governing administrative mandamus, the circuit court had jurisdiction to review her appeal of WCHD's denial of her promotion. The State responds that whereas appellant failed to demonstrate a clear legal right or protected property interest in the promotion, the circuit court's dismissal of her action was proper. The merit of appellant's arguments regarding the procedures employed by WCHD in relation to the challenged employment actions is not before the Court at this time. Where, as in the instant case, the judgment of the circuit court pertains solely to conclusions of law, we owe no deference to those decisions, and will review them de novo . Talbot County v. Miles Point, 415 Md. 372, 384 (2010) (citing Belvoir Farms Homeowners

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Ass'n v. North , 355 Md. 259, 267 (1999)(stating that decisions of an administrative agency are owed no deference when the conclusions are based upon an error of law.)); see also Nesbit v. Gov't Employees Ins. Co ., 382 Md. 65, 72 (2004) ("When the trial court's order involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court's conclusions are legally correct under a de novo standard of review.") (internal quotation marks and citation omitted). "To the extent issues on appeal turn on the correctness of an agency's factual findings, such evidence is reviewed under the substantial evidence test." Hurl v. Bd. of Ed. of Howard County , 107 Md. App. 286, 305 (1995) (citing Dep't of Human Resources v. Thompson , 103 Md. App. 175, 190 (1995)). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support an agency's conclusion. Id . (citations omitted). Appellant challenged the denial of promotion to the appropriate appointing authority under Title 7, Subtitle 2 of the State Personnel and Pensions Article which provides in pertinent part: (a) Who may appeal.

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