Aviation Administration v. Noland

Citation386 Md. 556,873 A.2d 1145
Decision Date10 May 2005
Docket NumberNo. 15,15
PartiesMARYLAND AVIATION ADMINISTRATION v. Clifton F. NOLAND.
CourtMaryland Court of Appeals

Maureen M. Dove, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Andrew H. Baida, Asst. Atty. Gen., Louisa H. Goldstein, John C. Bell, Asst. Atty's Gen., on brief), for petitioner.

Dennis Gottesmann (Law Offices of Dennis M. Gottesmann, P.A., Greenbelt, on brief), for respondent.

Argued before BELL, C.J., ELDRIDGE1, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

Opinion by ELDRIDGE, J.

This is an action for judicial review of an adjudicatory administrative decision terminating the employment of a state governmental employee. The Circuit Court for Anne Arundel County, while accepting the administrative findings of fact as being supported by substantial evidence, reversed the administrative decision on the ground that the termination sanction for the employee's misconduct was "arbitrary." The Court of Special Appeals, in an unreported opinion, affirmed. Both courts relied upon an earlier Court of Special Appeals' case, Maryland State Retirement Agency v. Delambo, 109 Md.App. 683, 675 A.2d 1018 (1996). We shall reverse, shall direct that the administrative decision be affirmed, and shall overrule Maryland State Retirement Agency v. Delambo, supra.

I.

The respondent Clifton F. Noland was a paramedic employed by the Maryland Aviation Administration, which is a unit of the Maryland Department of Transportation. The basic facts concerning Noland's employment history and the incident leading to his termination were undisputed. They are set forth in the opinion of Administrative Law Judge (ALJ) Sharonne R. Bonardi as follows:

"FINDINGS OF FACT"
"Having considered the evidence presented, I find the following facts by a preponderance of the evidence:"
"1. At all times relevant to this proceeding, the Employee [Clifton F. Noland] was employed as an Airport Advanced Life Support Provider with the Maryland Aviation Administration."
"2. The Employee began employment as an Airport Advanced Life Support Provider on December 14, 1988. During the period 1989-1992, in a range of superior, satisfactory, and unsatisfactory, the Employee received satisfactory on his performance evaluations. In 1993 and 1994, he received superior ratings. From 1995-1998, in a range of far exceeds, exceeds, meets, below, and far below, the Employee received an exceeds standards rating."
"3. On May 1, 1997, THRS [Transportation Service Human Resources System of the Maryland Aviation Administration] issued a Workplace Violence policy. On November 6, 1997, the Employee signed an Employee Acknowledgment Receipt acknowledging that he received a copy of TSHRS Workplace Violence policy and was required to familiarize himself and comply with that policy as a condition of employment."
"4. On March 30, 1999, the Employee and Paramedic James Clopein were working the `D' shift within the Fire Rescue and Safety unit at the Baltimore Washington International (`BWI') Airport. At 12:21 a.m., the Consolidated Dispatch Center (`CDC') received a call from Police Officer Reed, Maryland Transportation Authority Police (`MTA') requesting an ambulance to assist in transporting a combative psychiatric prisoner (`Patient') to the North Arundel Hospital. The CDC immediately dispatched a two-member paramedic team consisting of the Employee and Paramedic Clopein."
"5. Before entering the MTA police station, both the Employee and paramedic Clopein placed latex gloves on their hands and then took a stretcher and portable radio into the police station."
"6. The police officers informed the paramedics that the combative patient was spitting and drinking water from the toilet in his cell."
"7. The Employee returned to the ambulance to retrieve protective face shields. He located two face shields in the vehicle and brought them back to the police station."
"8. When the Employee returned to the police station, the police officers opened the cell to remove the Patient. As the police officers were opening the cell, the Patient spit fluid onto one of the police officer's face, neck, and chest."
"9. The Employee and Paramedic Clopein requested that the Patient be placed face-down on the stretcher. The police officers restrained the Patient with handcuffs and placed the Patient on his back onto the stretcher rather than face-down as requested. The Employee placed a face shield onto the Patient. Both the Employee and Paramedic Clopein strapped the Patient to the stretcher, and with the assistance of the police officers, began carrying the patient from the police station."
"10. The Patient, while spitting and screaming `f—you' and other expletives, dislodged the face shield and spit at the Employee. The Patient also threatened to kill the Employee, Paramedic Clopein, and the police officers present. The Employee struck the Patient in the face with closed fist and then reattached the face shield onto Patient's face. The police officers and Paramedic Clopein observed the blow to the Patient's face and made no comments regarding the Employee's actions."
"11. The Employee and Paramedic Clopein exited the police station and were pushing the stretcher to the ambulance when the Patient again dislodged the face shield and spit at the Employee. The Employee once again hit the Patient in the face with a closed fist and reattached the face shield onto the Patient's face. Paramedic Clopein observed the hit. A police officer was also present when the Employee struck the Patient this time as well."
"12. During the incident, the Employee had a portable radio in one hand but never used the radio to strike the Patient."
"13. Both hits were with the Employee's closed fist and neither caused bruising, swelling, or any other visible injury to the Patient."
"14. The blows were to prevent the Patient from spitting and to protect the police officers and the paramedic team from possible exposure to a communicable disease."
"15. The Employee, Paramedic Clopein, and a police officer transported the Patient to North Arundel Hospital without further incident."
"16. The Employee and Paramedic Clopein did not report the incident to the North Arundel Hospital staff."

When Noland and Clopein returned to BWI, Clopein, as the non-driving paramedic and pursuant to established internal agency practice, completed and filed a Maryland Ambulance Information System Report and a BWI Fire and Rescue Service Report, but, as found by the ALJ, he "did not include any statements regarding the Employee's act of twice striking the Patient." In addition, upon returning from the Hospital to BWI, Noland and Clopein failed to report Noland's act of twice striking the patient either to the Emergency Medical Services (EMS) Coordinator, or to the Shift Supervisor, or to the Shift Commander.

The ALJ further found that, later in the day of March 30, 1999, "Paramedic Clopein described the incident to Paramedic Fayer, the EMS Coordinator, and informally asked if the incident should have been reported. Paramedic Fayer informed Paramedic Clopein that he should have reported the incident. Paramedic Fayer immediately informed Francis Jester, Division Fire Chief, ... of the incident, and Fire Chief Jester advised Paramedic Fayer to obtain written statements from both the Employee and Paramedic Clopein and forward the reports to the shift commander." Noland completed his report on April 3, 1999, and submitted it to Paramedic Fayer and the Division Fire Chief on the same day. Clopein completed and submitted his report on April 15, 1999.

According to the ALJ's findings, "[a]ll BWI paramedics and emergency medical personnel operate under the medical license of Dr. Phillip Phillips, BWI, FRS Medical Director." Dr. Phillips was informed of the striking incident on April 15, 1999, and, that same day, suspended Noland from operating under Dr. Phillips's medical license. On the next day, the Maryland Institute of Emergency Medical Services System suspended for one year Noland's paramedic license for twice striking the patient. Also on April 16, 1999, the BWI Airport Fire Department began an investigation of the incident. The investigation was competed on April 20, 1999, and Clopein was suspended without pay for five days for failing to report the incident. Noland, on April 22, 1999, was suspended without pay pending the disposition of charges for his termination as an employee with the Maryland Aviation Administration. Following the completion of the investigation, Noland was informed on July 2, 1999, that charges for termination of his employment and disqualification for future employment with the Maryland Aviation Administration, based upon his striking a patient twice and failing to report the incident, had been filed against him.

Noland filed a timely appeal to the Maryland Office of Administrative Hearings, and a hearing was held before ALJ Bonardi on January 27, 2000, and continued on March 6, 2000. The ALJ on April 20, 2000, filed an extensive opinion containing findings of fact as summarized above, conclusions of law, and a proposed decision. The ALJ concluded that Noland did not violate "Management's Workplace Violence Policy" because "he did not strike the Patient out of anger, but rather to prevent or reduce possible exposure to an infectious disease," and that his "actions were not done for the purpose of intimidation, or for the purpose of harming, damaging, or causing injury to persons or property."2 ALJ Bonardi, after a detailed review of COMAR regulations, the "Manual of Maryland Medical Protocols for Cardiac Rescue Technicians and Emergency Medical Technicians-Paramedic," and the expert testimony at the hearing, further concluded as follows:

"I conclude as a matter of law that the Employee used excessive force when twice striking the restrained Patient. COMAR 11.02.08.06B(10). I also find as a matter of law that in striking the Patient and failing to report the
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