George v. Div. of Parole & Prob.
| Decision Date | 19 February 2020 |
| Docket Number | No. 2392,2392 |
| Parties | REGINA GEORGE v. DIVISION OF PAROLE AND PROBATION, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Baltimore County
Case No.: 03-C-17-012549
UNREPORTED
Beachley, Gould, Adkins, Sally D. (Senior Judge, Specially Assigned), JJ.
Opinion by Gould, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Regina George suffered a workplace injury that according to her employer, the Division of Parole and Probation, Department of Public Safety and Correctional Services ("Department"), prevented her from performing the essential tasks of her position. As a result, Ms. George entered into an agreement in which she agreed to submit a conditional resignation, in return for the Department's agreement to look for another suitable position in light of her limitations. The Department agreed that it would only accept her resignation should its search prove fruitless. Ultimately, the Department concluded that Ms. George's injuries prevented her from working in any other position and accepted her conditional resignation. Ms. George challenged this determination (and the process that led thereto) through a grievance process that ultimately reached the Office of Administrative Hearings ("OAH"), where her grievance was denied.
Subsequently, Ms. George filed a petition for judicial review in the Circuit Court for Baltimore County. The circuit court dismissed her petition as untimely, prompting this timely appeal. For the reasons that follow, we affirm the judgment of the circuit court.
Ms. George was a Pre-Trial Release Investigator II with the Department. In 1999, she injured her left foot and ankle in an elevator accident at work. Until 2013, the Department accommodated her injury by allowing her to enter her workplace (the Department's "Central Booking" facility) through an entrance that was more easily accessed than the one used by other employees. However, in 2013, Ms. George was caught bringing prohibited items into Central Booking, and the accommodation was revoked. Ms. George pursued a grievance alleging that the revocation of the accommodation violated her rights under the Americans with Disabilities Act, the denial of which was affirmed by an administrative law judge. Ms. George also filed a lawsuit in the United States District Court of Maryland alleging similar claims, which was dismissed on summary judgment.
In 2015, Ms. George suffered another workplace accident, this time falling and hitting her head on the concrete floor and suffering a concussion. As a result, she was unable to return to work. Over the ensuing 11 months, Ms. George was evaluated and treated for the injuries arising out of the accident. In August 2016, the State Medical Director (the "Medical Director") concluded that Ms. George was unable to perform the essential duties of her position, with or without accommodation. As a result, the Department initiated the process for terminating Ms. George.
The termination process included a mitigation conference at which representatives of the Department met with Ms. George and negotiated a resolution in which the Department would look for a position that Ms. George was both qualified for and able to perform notwithstanding her limitations. In return, Ms. George agreed to execute a conditional resignation, to be effective in the event no such position could be found.1
Subsequently, a psychologist tested Ms. George and found that she was experiencing difficulties with her memory and concentration, including severe lapses in recall. Based on this report, the Medical Director determined that there were no suitable positions for Ms. George, and the Department accepted her previously-submitted resignation.
Ms. George filed a grievance alleging that the Department had failed to conduct a good faith search for other suitable positions and not offered her the services of its Interactive Americans with Disabilities Act Process. A hearing on her grievance was held before OAH on July 27, 2017. Ms. George was represented by her union representative, as is permitted under Md. Code Ann., State Personnel and Pensions Article ("SPP") § 12-105 . Ms. George contends that when asked for her address at the beginning of her testimony, she gave both her physical address and her post office box.2
Pursuant to SPP § 12-205(c)(2)(i), OAH was required to issue a decision within 45 days of the close of the hearing, which meant that the deadline for the decision was September 11, 2017. On that date, OAH issued its written decision to uphold her termination. OAH mailed the decision to Ms. George's address of record—her physical street address—as well as to her union representative. The mail addressed to Ms. George was returned to OAH on September 21, 2017, marked as "not deliverable as addressed."
On December 12, 2017, three months after the decision was due, after having received nothing from OAH, Ms. George contacted OAH. OAH informed her that a copy of the decision had been mailed to her home address and had been returned to OAH as undeliverable. At Ms. George's request, OAH mailed a copy of the decision to her post office box address.
On December 26, 2017, Ms. George filed a petition for a judicial review of OAH's decision. The Department filed a motion to dismiss the petition as untimely, arguing that under Maryland Rule 7-203, the deadline for Ms. George's petition was October 13, 2017—30 days after the decision had been first mailed to her street address of record. The circuit court granted the Department's motion and dismissed the petition as untimely. This appeal followed.
Ms. George presents one question for review which we have rephrased as follows: did the circuit court properly dismiss Ms. George's petition for judicial review as untimely?
Ms. George argues that the "circuit court should have considered December 12, 2017 as the date that OAH sent notice to her, since that is the date the notice was sent to her mailing address. According to Ms. George, the September 11 mailing of the decision was insufficient because OAH was aware from her testimony that she had been using a post office box address, and OAH knew that she had not received the decision because it had been returned as undeliverable. Thus, Ms. George argues, the 30-day time period under Md. Rule 7-203 did not begin until December 12, 2017, when OAH mailed a copy of the decision to her post office box address.
Claiming that she had a "property interest in her continued employment," Ms. George relies on cases that address the procedural due process implications when notices of various kinds are not actually received. See Jones v. Flowers, 547 U.S. 220 (2006) (); Griffin v. Bierman, 403 Md. 186 (2008) (); Maryland State Bd. of Nursing v. Sesay, 224 Md. App. 432 (2015) (). Relying on these cases, Ms. George contends that the notice by regular mail "was insufficient to protect her due process rights."
The Department counters that the petition was untimely. The Department argues that the requirement for OAH to "issue a written decision" within 45 days "after the close of the hearing record," as provided under SPP § 12-205(c)(2)(i), means that "the statute requires notice to be sent to the petitioner," which the ALJ did by mailing it to Ms. George's address of record. The Department relies on S.B. v. Anne Arundel County Dep't of Soc. Servs., 195 Md. App. 287 (2010), for the proposition that when a statute requires a final decision to be mailed or delivered, notice is complete upon mailing.
As for Ms. George's due process argument, the Department argues that: (1) Ms. George waived this argument because she did not raise it in the circuit court; (2) there was no due process violation because the Department did, in fact, mail the decision to the home address on record; (3) Ms. George was on constructive notice that the case had been decided because the statute required a decision within 45 days of the close of the hearing; and (4) the due process cases cited by Ms. George did not apply because they involved the failure to provide notice of potential loss of property or other rights, whereas Ms. George received all of the notice and opportunity to be heard to which she was entitled. As the Department puts it: "Moving forward with the deprivation of rights where it is unclear whether the affected parties received notice is fundamentally different from this case, where Ms. George had actual notice of the operative proceedings, participated fully in them, and then, by virtue of her failure to update her address of record with OAH, did not receive timely notice of the ALJ's decision."
We agree with the Department and the circuit court that Ms. George filed her petition for review too late. As we explain below, Ms. George was charged with actual knowledge that, as of September 11, 2017, OAH had issued a decision denying her claim, and this legal conclusion is compelled by statute, even if OAH had mailed the decision to the wrong address on September 11, 2017. Our analysis begins with a brief review of the statutory framework within which Ms. George's grievance was adjudicated.
The grievance proceeding begins with the three-step process set forth in SPP §§ 12-201, 12-203, 12-204, and 12-205. In the first step, the grievant files her written complaint, which is reviewed and decided by the "appointing authority."3 SPP § 12-203. The appointing authority must issue its written decision within ten days from its meeting with the grievant. SPP §§ 12-201, 12-203.
In the second...
To continue reading
Request your trial