Department of Health and Mental Hygiene v. Shrieves

• Decision Date: 01 September 1993
• Docket Number: No. 1719,1719
• Parties: DEPARTMENT OF HEALTH AND MENTAL HYGIENE v. Carl M. SHRIEVES. ,
• Court: Court of Special Appeals of Maryland

Page 283

100 Md.App. 283

641 A.2d 899

DEPARTMENT OF HEALTH AND MENTAL HYGIENE v. Carl M. SHRIEVES.

No. 1719, Sept. Term, 1993.

Court of Special Appeals of Maryland.

May 31, 1994.

David R. Morgan, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellant.

Barry C. Steel, Towson, for appellee.

Argued before BISHOP, DAVIS and MOTZ, JJ.

MOTZ, Judge.

The Secretary of Personnel's designee (SOPD) determined that a state employee should be terminated from his employment because he engaged in improper sexual harassment. The Circuit Court for Howard County reversed and ordered that the employee be reinstated with back pay. This appeal involves the issue of whether the circuit court was correct in finding that the SOPD's order was "unsupported by substantial evidence" because it did not "adequately state her reasons for disagreeing with the ... decision" of an Administrative Law Judge (ALJ).

(i)

On December 10, 1991, the employee, appellee Carl M. Shrieves, was suspended pending the filing of charges for removal from his security attendant position at the Clifton T. Perkins Hospital Center (Perkins), a facility of appellant, the Department of Health and Mental Hygiene (DHMH). Mr. Shrieves was charged with violations of certain personnel department rules and Standard Procedure D-31 (Sexual Harassment Policy) arising from an incident on November 13, 1991. Mr. Shrieves appealed to the Office of Administrative Hearings (OAH) and a hearing was held before an ALJ in February and March 1992. Twenty-four witnesses testified before the ALJ and numerous exhibits were presented; the transcript of the hearing consumes 1158 pages. The proposed decision of the ALJ is twenty-nine pages and includes eighty-five separately numbered factual findings. The ALJ's numbered factual findings are excerpted and summarized below; quotation marks indicate the ALJ's words, not those of the witnesses.

At the time of the ALJ hearing, Mr. Shrieves had been employed at Perkins for seventeen years. Among his job responsibilities were training officer, Agency Technical Representative (training employees on the State drug testing policy) and photographer for employee identification cards. On November 13, he took the photograph of Kristen M. Shavatt, a twenty-two year old telephone operator, who had been employed at Perkins for two years at the time of the ALJ hearing. The photograph was taken in the "photo identification room." That room, which is audio-monitored, is located in Perkins' maximum security section and so must be kept locked at all times; Ms. Shavatt did not have a key to the room, but Mr. Shrieves did. Because Ms. Shavatt did not like her first photograph, she requested it be retaken and so was the last person in the locked photo identification room with Mr. Shrieves. Ms. Shavatt testified at the hearing that during the photography session Mr. Shrieves made "unwanted sexual advances." He told her "he wanted to take her out and make love to her." When she tried to leave the locked photo identification room, she stated that Mr. Shrieves "would not let her out unless she kissed him." Finally, when "she raised her voice and told Mr. Shrieves to let her out, he did so."

In a written statement, made for the police the day following the incident, November 14, 1991, Ms. Shavatt similarly stated that Mr. Shrieves told her during the photography session that he wanted "to spend time with her alone." She walked away "over to the door" and said "come on let's go." Mr. Shrieves then "went over to her and said he would not let her go unless she kissed him. Ms. Shavatt stated that she quickly pushed him away and yelled that he had better let her out and to open the door." In a criminal complaint filed by Ms. Shavatt shortly after the incident, ¹ she related a very similar story. In it "Ms. Shavatt stated that Mr. Shrieves told her he was hoping that they would spend some time together alone and that he wanted to make love to her. After trying to get Mr. Shrieves to hurry and finish the photos, Ms. Shavatt stated that he then snapped her picture. He pulled out the picture and stated that he wanted to take her out for a couple drinks after work. Ms. Shavatt stated that she walked over to the door and turned the knob to let Mr. Shrieves know she was ready to leave. According to Ms. Shavatt, Mr. Shrieves finally walked over to the door and told her she would have to kiss him if she wanted to get out. Ms. Shavatt stated that Mr. Shrieves got very close, then she pushed him away, and yelled to let her out."

"In his testimony, Mr. Shrieves denied Ms. Shavatt's account of the incident. He stated that after taking her picture, she was dissatisfied with it and asked him several times to retake it. In order to get her to smile, Mr. Shrieves joked with her about puckering her lips for a kiss. He denied telling Ms. Shavatt that she would have to kiss him if she wanted to be let out of the room. Mr. Shrieves testified that before he finishes his work, equipment is cleaned up. While he was cleaning up, Ms. Shavatt became impatient and asked to leave. He stated that he did not open the door immediately because of the need to clean up and because he could not let her leave the room unescorted since it was a maximum security area. When Ms. Shavatt elevated her voice and said let me out of here, Mr. Shrieves stated that he told her to stop being silly and that people would hear her." In a written statement dated November 20, 1991, Mr. Shrieves "denied touching Ms. Shavatt or engaging in any improper or unprofessional conduct."

State Trooper P.A. Jameson, who testified at the hearing, interviewed both Ms. Shavatt and Mr. Shrieves shortly after the incident. "According to Trooper Jameson, Ms. Shavatt stated that she had one picture taken and left the room to get another form. When she returned, she was the last person in the room. Ms. Shavatt did not like her first picture and asked for another. When she was finished and ready to leave, Ms. Shavatt stated that Mr. Shrieves came toward her and stated that he wanted to spend time with her alone. Ms. Shavatt walked away and stood by the door, but could not leave because it was locked. Mr. Shrieves then approached her again and stated that she could not leave until she gave him a kiss. Ms. Shavatt stated that she pushed Mr. Shrieves away and screamed that she wanted to be let out of the room. According to the report, Ms. Shavatt then stated that Mr. Shrieves opened the door."

"Trooper Jameson's account of his interview with Mr. Shrieves was recorded in a question and answer format. Mr. Shrieves was asked 15 specific questions about various aspects of the incident and his relationship with Ms. Shavatt. His report states in pertinent part:

Question # 4: Did you make any statements that you would consider inappropriate to Kristen while both of you were in the photo lab?

Answer # 4: Mr. Shrieves stated that he jokes around a lot and may have said something suggestive. "I may have said I love you", however, I say this to many people just being playful. Kristen had finished her picture and wanted another re-taken that is why she was the last to leave. She couldn't leave because I had the key and was cleaning up.

Question # 6: Did you make the statement that Kristen could not leave unless she gave you a kiss?

Answer # 5: [sic] Mr. Shrieves stated that I may have said "If you don't confess that you love me I won't let you leave." I made this comment to make Kristen laugh while I was taking her picture.

Question # 11: Did you approach Kristen in a threatening manner?

Answer # 11: Mr. Shrieves stated, "I did approach her and she only pushed me away after she disliked the picture I had taken. If you are asking whether any contact was made, at some point, yes, but it happens with a lot of employees."

Question # 13: Did you ever ask for a kiss from Kristen while in the photo room?

Answer # 13: Mr. Shrieves stated, "I may have asked her for a kiss, I get along with a lot of people, I don't keep count of what I say. I wouldn't say anything different to anyone."

"With respect to the police report, Mr. Shrieves admitted that part of the report was accurate, but contended that some of the statements attributed to him were taken out of context. Further, while Mr. Shrieves admitted to asking Ms. Shavatt for a kiss, he stated that he told the officer he did so jokingly. Mention is made of this claim in the police report."

In addition to the evidence as to the November 13 incident, there was also conflicting testimony by Ms. Shavatt and Mr. Shrieves as to their prior communications. For example, "[a]ccording to Ms. Shavatt, when Mr. Shrieves saw her, he would put his arm around her and make 'crazy' conversation. Further, Ms. Shavatt stated that Mr. Shrieves would ask her out after work for drinks a couple of times a week.... Ms. Shavatt stated that Mr. Shrieves told her that he would get an apartment so that they could live together." On the other hand, "Mr. Shrieves denied asking Ms. Shavatt for a date, or to live with him. He stated that he would not ask her for a date due to the age differences between them and that he did not view their friendship in that manner. Further, Mr. Shrieves stated that he is married and would not have asked her to live with him. Mr. Shrieves further testified that he does not drink."

When Ms. Shavatt returned to her work station on November 13, she encountered her supervisor, Gwendolyn Joyner. Ms. Joyner testified that Ms. Shavatt did not seem upset and did not mention any sexual harassment, only that her identification picture was ugly. Another employee who had been in the room with Ms. Shavatt and Mr. Shrieves prior to the incident, Ursula Carter, testified that Mr. Shrieves had joked with both of them in order to make them smile. Moreover, there was testimony from a number of other Perkins employees that Mr. Shrieves often joked in this manner and...