Leese v. Baltimore County

• Decision Date: 01 September 1984
• Docket Number: No. 1599,1599
• Citation: 64 Md.App. 442,497 A.2d 159
• Parties: Sterling LEESE, Jr. v. BALTIMORE COUNTY, et al. ,
• Court: Court of Special Appeals of Maryland

Page 442

64 Md.App. 442

497 A.2d 159

Sterling LEESE, Jr. v. BALTIMORE COUNTY, et al.

No. 1599, Sept. Term, 1984.

Court of Special Appeals of Maryland.

Sept. 9, 1985.

J. Carroll Holzer, Towson (Holzer, Maher & Demilio, Towson, on brief), for appellant.

L. Paul Snyder, Jr., Asst. County Atty., Towson (Malcolm F. Spicer, Jr., County Atty., Towson, on brief), for appellees.

Argued before GARRITY, ADKINS and GETTY, ^* JJ.

ADKINS, Judge.

This case had its genesis in the circumstances surrounding Baltimore County's decision to terminate the employment of the appellant, Sterling Leese, Jr., as the director of its senior citizen transportation network. After his dismissal, Leese brought suit against the appellees--the county and several of its supervisory employees--alleging a number of constitutional and common law infractions. To this initial declaration, the court below sustained a demurrer. Leese filed a thirty-two page amended declaration. That was dismissed for failure to state a claim upon which relief could be granted. Leese appealed. Here, he argues that the lower court erred in granting the motion to dismiss his multi-count amended declaration. We agree in part and reverse.

FACTUAL BACKGROUND

According to the well-pleaded facts in his amended declaration, Leese was employed by appellee Baltimore County from August of 1976 until October of 1982. During that period, he planned, implemented and managed the county's "Senioride" program. At the outset, the Senioride program was administered under the county's Department of Social Services. In 1979, however, it was assigned to the newly-created Department of Aging. This brought Leese into contact with appellee Timothy Fagan, the Director of the Department of Aging.

Throughout his tenure as the director of Senioride Leese's position was classified as "part time." Under the county's merit system, part-time employees were expressly denied tenure or any of the other legal protections accorded merit employees. In an effort to obtain the benefits of the merit system, Leese was successful in persuading Fagan to create a new position, designated "Senior Affairs Associate II (Supervisor Senioride Services)." Because this new position conferred full-time merit status, it had to be filled according to the procedures set forth in the county code and regulations. Specifically, the position had to be posted and a test had to be given. Those who cleared these first two hurdles were interviewed by the hiring authority. In this case the hiring authority was Timothy Fagan.

Leese successfully completed the first two steps: he met the criteria in the posting and he achieved the highest score on the exam. At this point, his application, along with others, was forwarded to the hiring authority for an interview. Rather than conducting the interviews himself, Fagan delegated this chore to a panel of supervisory employees: appellees Ellen Yerman, Majorie Fortner, and Gloria Albinok.

Instead of receiving the fair interview that he claims he was due under the Baltimore County Administrative Code and Regulations, Leese asserts that his interview was a sham. In the words of his amended declaration, "the Selection Committee ... and the Director of Aging were predisposed to eliminate [Leese] as a candidate for the merit system position as a result of personal bias and without official and reasonable justification." He further asserts that the "Committee established a different standard to judge [him] during the oral interview, than was used to judge the other candidates, all to [his] prejudice."

This tainted interviewing procedure, Leese asserts, was incorporated in a report to Fagan that stated that Leese "has not demonstrated ability to assume a professional management role beyond daily operations." Acting upon this report, Fagan and the "ultimate Appointing Officer," B. Melvin Cole, directed that someone other than Leese be selected to fill the merit position. Nevertheless, Leese was retained in a new non-merit part-time position, at a reduced salary, "in which he [was] responsible for continuing his duties of day to day operation of the Senioride Program as well as additional responsibilities."

The decision not to place Leese in the merit position prompted him to challenge the propriety of the hiring process. He retained counsel and began the steps necessary to appeal the decision. Shortly after his attorney contacted Fagan and informed him of the basis for this challenge, Leese was summarily fired. The amended declaration averred that this occurred in "retaliation for exercising his legal rights to appeal" the decision to hire someone other than Leese.

In spite of his dismissal, Leese pursued his administrative appeal of the hiring decision. The matter was first brought before Administrative Officer B. Melvin Cole. When he found no impropriety with the hiring process, a further appeal was taken to the Personnel and Salary Advisory Board of Baltimore County. In an evenly-split decision (2-2), the Board upheld the hiring process.

Undaunted by his lack of success with his administrative appeals, Leese filed a nine-count declaration in the Circuit Court for Baltimore County. The first three counts focused on procedural improprieties in the hearing before the personnel board. Counts IV and VII alleged that the tainted review of Leese's credentials violated the county charter, code, and administrative regulations and thereby denied Leese due process of law under the Fourteenth Amendment to the United States Constitution. Similarly, in counts V and VIII, Leese asserted that he was denied due process when his employment was summarily terminated, and that his dismissal was an unconstitutional retaliation to the exercise of his First Amendment rights. He also averred that these claims amounted to an abusive discharge under Maryland's common law. Counts VI and IX alleged that Leese was defamed by critical statements that were placed in his personnel records. ¹

When a demurrer to this initial pleading was sustained with leave to amend, the appellant filed an "amended declaration." ² This pleading included counts I through IX from the initial declaration and added claims for violations of 42 U.S.C. § 1983 and a claim for intentional infliction of emotional distress. To this amended declaration, the trial court granted a motion to dismiss and entered judgment in favor of the appellees.

ISSUES

Before addressing the many questions presented by this case, it is important to define precisely what the issues are. In doing this, we are cognizant that this case is before us to review a dismissal for failure to state a claim upon which relief can be granted. Accordingly, we must assume that the facts alleged in the amended declaration are true. Ungar v. State, 63 Md.App. 472, 479, 492 A.2d 1336 (1985). Also, in conducting our review of the record, we look only to see if the amended declaration truly represented a "failure to state a claim upon which relief can be granted." Md.Rule 2-322(b)(2). In other words, we shall look to see if Leese has alleged facts which, if proven, would entitle him to relief. Dick v. Mercantile-Safe Dep. and Trust Co., 63 Md.App. 270, 273, 492 A.2d 674 (1985).

With this in mind, we believe that the following issues have been properly preserved and presented: ³

I. Due Process/42 U.S.C. § 1983

Has Leese alleged facts sufficient to show that:

A. In light of the Baltimore County Code and its accompanying rules and regulations he had a due process right to a fair appraisal of his qualifications for a merit system position?

B. Under the due process clause of the Fourteenth Amendment to the U.S. Constitution, he, as a part-time non-merit status employee, had a proprietary interest in his continued employment?

C. By including in his personnel file allegedly false statements about his performance as a manager, the appellees stigmatized the appellant so as to deprive him of liberty without due process of law?

II. First Amendment/42 U.S.C. § 1983

Has Leese alleged facts sufficient to show that the county unconstitutionally fired him in retaliation for exercising his First Amendment rights?

III. Abusive Discharge

Has the appellant sufficiently alleged all the elements of an abusive discharge?

IV. Emotional Distress

A. Do the allegations concerning the appellee's conduct with regard to the appellant sufficiently charge extreme and outrageous behavior?

B. Are the injuries alleged to have been suffered by the appellant sufficiently severe?

V. Defamation

A. Has the appellant adequately alleged that the statements about his work performance were defamatory and published, and that they have caused him actual injury?

B. Are the defamatory remarks privileged?

VI. Immunities

A. Are the common law tort and contract claims against the county barred by governmental immunity?

B. Are the common law tort and contract claims against the county employees barred by Maryland's common law public official immunity?

C. Are the constitutional claims incorporated in the 42 U.S.C. § 1983 claim barred by the official immunities?

VII. Punitive Damages

Are punitive damages recoverable if the appellant ultimately prevails on the claims that must be remanded?

I. Due Process/42 U.S.C. § 1983

The bulk of the appellant's disagreement with the lower court's decision focuses upon its unwillingness to allow him to challenge the constitutionality of the appellee's hiring and firing decisions. Pleading his case under both the common law ⁴ and 42 U.S.C. § 1983 ⁵ Leese asserted that each of these employment decisions was made without according him the notice and hearing he believes were guaranteed him under the due process clause of the Fourteenth Amendment.

Before the appellant can be allowed to proceed with either his common law or § 1983 action, it must appear that there has been a violation of the Fourteenth Amendment by the appellees. In other words, the amended declaration must...