Department of Economic and Employment Development v. Propper

• Decision Date: 01 September 1995
• Docket Number: No. 590,590
• Citation: 673 A.2d 713,108 Md.App. 595
• Parties: DEPARTMENT OF ECONOMIC AND EMPLOYMENT DEVELOPMENT v. Nancy M. PROPPER. ,
• Court: Court of Special Appeals of Maryland

Page 595

108 Md.App. 595

673 A.2d 713

DEPARTMENT OF ECONOMIC AND EMPLOYMENT DEVELOPMENT v. Nancy M. PROPPER.

No. 590, Sept. Term, 1995.

Court of Special Appeals of Maryland.

March 27, 1996.

Andrew Auerbach, Staff Attorney (J. Joseph Curran, Jr., Attorney General, and Lynn M. Weiskittel, Assistant Attorney General, on the brief), Baltimore, for Appellant.

Randolph C. Knepper (Levin & Gann, P.A., on the brief), Baltimore, for Appellee.

Argued before WILNER, C.J., and BLOOM and HOLLANDER, JJ.

HOLLANDER, Judge.

The Board of Appeals ("the Board") of the Department of Economic and Employment Development ("DEED"), ¹ appellant determined that Nancy M. Propper, appellee, was disqualified from receiving unemployment benefits based on her "gross misconduct" within the meaning of Md.Code (1991, 1995 Supp.), § 8-1002 of the Labor and Employment Article ("L.E."). The Board concluded that Propper was discharged by her employer, Antwerpen Dodge Ltd. ("Antwerpen"), for gross misconduct because she repeatedly worked erratic hours, even though her employer warned her that her conduct was unacceptable. Propper sought review of the Board's decision in the Circuit Court for Baltimore City, which reversed. The Board now appeals, and presents for our consideration two questions, which we have re-worded slightly for clarity:

1. Was the Board's determination that Propper had been discharged for gross misconduct a reasonable application of L.E. § 8-1002(a)(1)(i) (Supp.1995)?

2. Was this determination supported by substantial evidence?

We answer both questions in the affirmative. Accordingly, we shall reverse the circuit court.

FACTUAL BACKGROUND

Prior to March 1994, Propper and her husband, Scott Propper, were owners and employees of Motor Coach Ltd., located in Randallstown, Maryland. On March 7, 1994, the assets of Motor Coach Ltd. were purchased by Antwerpen. The company retained Ms. Propper as a "transitional employee" in the office.

After Ms. Propper was terminated on May 7, 1994, she filed a claim for unemployment benefits pursuant to Title 8 of the Labor and Employment Article. A DEED claims examiner determined that insufficient information had been presented to support a finding of misconduct. Antwerpen appealed and, on July 5, 1994, an evidentiary hearing was conducted before a hearing examiner.

The evidence showed that, immediately after Antwerpen assumed control of the business, it began to experience problems with Propper, because she worked an abbreviated day. Randy Silverman, Antwerpen's office manager, testified that she was responsible for making sure that employees arrived on time and completed their assignments. She stated that Propper was required to work full-time, from 9:00 a.m. to 5:00 p.m., Monday through Friday. According to her testimony, Propper worked from approximately 9:30 a.m. to 3:00 p.m. or 3:30 p.m., although there were occasions when she would come in later than 9:30 a.m. or as early as 8:00 a.m., and would stay as late as 6:00 p.m.

Time records kept by Silverman for the period from April 20, 1994 through May 3, 1994 evidenced a rather erratic schedule on Propper's part. On April 20, she arrived at 10:15 a.m., took one hour for lunch and an additional hour later in the afternoon, and left at 5:00 p.m. On April 21, she did not come to work at all in the morning, arrived at 1:30 p.m., and left for the day at 5:15 p.m. On April 22, she arrived at 9:15 a.m. and left at 3:45 p.m. On April 25, she arrived at 9:00 a.m., took an hour for lunch, and left at 3:00 p.m. On April 26, she arrived at 10:00 a.m., took one hour and forty minutes for lunch, and left at 4:30 p.m. On April 29, she arrived at 9:15 a.m. and left at 3:15 p.m. On May 2, she arrived at 9:15 a.m., took two hours and ten minutes for lunch, and left at 3:50 p.m. On May 3, she arrived at 9:30 a.m., took two hours for lunch, and left at 3:45 p.m. By May 7, she was fired.

Silverman testified that she told Propper her work hours were unacceptable and that Propper was required to work from 9:00 a.m. to 5:00 p.m., Monday through Friday. Propper told Silverman that, although she would try to arrive at 9:00 a.m., she could not stay until 5:00 p.m. because she had to pick up her children on certain days. Sharon Hamby, Antwerpen's comptroller, also spoke with Propper about her hours. Jacob Antwerpen, the owner of the business, discussed appellee's hours with Scott Propper, appellee's husband, who had been retained as general manager of the business after the purchase by Antwerpen.

The hearing examiner issued a written opinion in which he found, inter alia, that Silverman had instructed Propper "that her hours would be 9:00 a.m. to 5:00 p.m. Monday through Friday," but Propper instead worked only around thirty hours per week. The hearing examiner also found that Silverman reminded Propper about what her hours should have been, "but this proved unaffected [sic]." In addition, the examiner found that "[a]fter numerous talks with the claimant regarding her erratic hours, the decision was made to terminate the claimant effective May 7, 1994."

On the basis of his findings, the hearing examiner concluded that Propper had been discharged for "misconduct" within the meaning of L.E. § 8-1003(a) (Supp.1995), ² and was disqualified from receiving benefits for ten weeks. The hearing examiner concluded, however, that Propper's conduct did not constitute "gross misconduct" within the meaning of L.E. § 8-1002(a) (Supp.1995), because "most of the job duties for Antwerpen were accomplished even though she worked erratic hours."

Propper appealed the hearing examiner's decision to the Board. The Board adopted the hearing examiner's findings of fact but concluded that they warranted a different conclusion of law. It found that "[a]fter counseling and in the face of warning, [Propper] repeatedly violated her work schedule, working up to ten hours per week less than required." It thus concluded that Propper had been discharged for "gross misconduct" within the meaning of § 8-1002 and was disqualified from receiving benefits.

Propper sought judicial review of the Board's decision in the circuit court, which agreed with Propper and reversed. The court ruled that the Board's decision was "not supported by substantial evidence," and remanded to the Board for a new hearing on the merits. This appeal followed.

Additional facts will be presented in our discussion of the issues.

SCOPE OF REVIEW

L.E. § 8-512(d) governs the standard of judicial review in connection with administrative adjudications of unemployment insurance benefits. It provides, in pertinent part, as follows:

In a judicial proceeding under this section, findings of fact of the Board of Appeals are conclusive and the jurisdiction of the court is confined to questions of law if:

(1) findings of fact are supported by evidence that is competent, material, and substantial in view of the entire record; and

(2) there is no fraud.

See also Board of Education of Montgomery Co. v. Paynter, 303 Md. 22, 34-35, 491 A.2d 1186 (1985) (interpreting predecessor statute, Md.Code Ann., art. 95A, § 7(h) (1984)); Board of Appeals, Department of Employment and Training v. Mayor and City Council of Baltimore, 72 Md.App. 427, 431-32, 530 A.2d 763 (1987); Adams v. Cambridge Wire Cloth Co., 68 Md.App. 666, 673-74, 515 A.2d 492 (1986).

Under the case law interpreting § 8-512(d) and its predecessor, "findings of fact made by the Board are binding upon the reviewing court, if supported by substantial evidence in the record." Board of Appeals v. Mayor and City Council of Baltimore, 72 Md.App. at 431, 530 A.2d 763. See also Allen v. Core Target City Youth Program, 275 Md. 69, 74-75, 338 A.2d 237 (1975). Any inference to be drawn from the facts is also left to the agency. It is "the province of the agency to resolve conflicting evidence, but where inconsistent inferences from the same evidence can be drawn, it is for the agency to draw the inference." Baltimore Lutheran High School Association v. Employment Security Administration, 302 Md. 649, 663, 490 A.2d 701 (1985).

The test is not how this Court would resolve a factual dispute or questions of credibility. On review, we may only determine "if, from the facts and permissible inferences in the record before the [Board], reasoning minds could reach the same result." Id. Consequently, we may not reject the Board's decision if it is supported by substantial evidence, unless the decision is wrong as a matter of law. Adams, 68 Md.App. at 673, 515 A.2d 492.

Furthermore, decisions of administrative agencies are prima facie correct. On appeal, the agency's decision must be viewed in the light most favorable to the agency. Paynter, 303 Md. at 35-36, 491 A.2d 1186. See also Bulluck v. Pelham Wood Apartments, 283 Md. 505, 511-13, 390 A.2d 1119 (1978). Accordingly, "the reviewing court should not substitute its judgment for the expertise of those persons who constitute the administrative agency from which the appeal is taken." Paynter, 303 Md. at 35, 491 A.2d 1186 (emphasis in original).

DISCUSSION

I.

Propper challenges the Board's determination that her conduct constituted "gross misconduct" within the meaning of L.E. § 8-1002(a) (Supp.1995). In the first instance, our inquiry is directed to the disputed findings of fact that the Board adopted. We must determine whether its findings are supported by substantial evidence.

Based on the evidence, the hearing examiner found that Silverman was Antwerpen's office manager. ³ We reject Propper's contention that Silverman was not Propper's supervisor. According to Silverman, she had the responsibility of making sure employees were at the office on time, keeping a log of when they arrived and left, and making sure they did their jobs while they were at the office.

At the hearing, Propper denied that Silverman ever took her to task about her hours, although Silverman testified that she had done so. ⁴ The hearing examiner found that...