Mobley v. Md. Dep't of Health
| Decision Date | 21 February 2020 |
| Docket Number | No. 2785,2785 |
| Parties | GREGORY MOBLEY v. MARYLAND DEPARTMENT OF HEALTH |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Baltimore City
Case No. 24-C-17-006081
UNREPORTED
Opinion by Fader, C.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.
Gregory Mobley, the appellant, was terminated with prejudice from two part-time skilled services positions at two institutions operated by the Maryland Department of Health (the "Department") due to alleged misconduct. He appealed to an administrative law judge ("ALJ"), who upheld the terminations, and then petitioned for judicial review by the Circuit Court for Baltimore City. The circuit court denied Mr. Mobley's petition, and Mr. Mobley appealed. We conclude that Mr. Mobley waived three of the four claims he currently raises on appeal by failing to present them to the administrative agency and that his remaining claim is without merit. We also conclude that substantial evidence supported the ALJ's decision to uphold the terminations and, therefore, will affirm.
We begin by outlining the statutory scheme governing administrative appeals of state personnel actions, and then discuss the facts of Mr. Mobley's case.
As a skilled services employee, Mr. Mobley was covered by Title 11, Subtitle 1 of the State Personnel and Pensions Article,1 which both "contains a comprehensive administrative appeal process for disciplinary actions" and also "provides for . . . processes that must occur before certain disciplinary actions are taken." Pub. Serv. Comm'n v. Wilson, 389 Md. 27, 68-69 (2005). Most relevant here, § 11-106 provides that the "appointing authority"—which is the "individual or a unit of government that has the power to make appointments and terminate employment," § 1-101(b)—"is restricted in itsability to take any disciplinary action, including termination, when that action is based on 'employee misconduct.'" Wilson, 389 Md. at 69. Section 11-106 reads in pertinent part:
By regulation, the appointing authority may "[d]elegate in writing the authority to act on the appointing authority's behalf to any other employee or officer under the appointing authority's jurisdiction." COMAR 17.04.01.04(A). The singular exception identified in the regulation is that the appointing authority "may not delegate the authority to make the final decision regarding disciplinary termination of a nontemporary employee." Id. 17.04.01.04(B).
When an employee is disciplined or terminated pursuant to § 11-106, that employee has a right of appeal to the Secretary of Budget and Management, who may "refer the appeal to the Maryland Office of Administrative Hearings ('OAH'), the State's centralized panel of neutral administrative law judges." Wilson, 389 Md. at 69 ). "If the matter is referred to the OAH," then "the OAH must hold ahearing on the matter." Wilson, 389 Md. at 69. "The hearing is governed by the procedures in the State Administrative Procedure Act ('APA')," §§ 10-201-10-226 of the State Government Article (Repl. 2014; Supp. 2019). Wilson, 389 Md. at 69 ). "The decision of the OAH is the final agency decision in such matters," Wilson, 389 Md. at 69 ), and under the APA, the employee may petition for judicial review of that decision in an appropriate circuit court. See Md. Code Ann., State Gov't § 10-222(a) & (c) (Repl. 2018; Supp. 2019).
On judicial review, the court may:
Mr. Mobley worked for two institutions of the Department: he was employed part-time by the Department's Secure Evaluation & Therapeutic Treatment ("SETT") program,3 and part-time by the Department's Clifton T. Perkins Hospital Center ("Perkins"). SETT, which is overseen by the Department's Developmental Disabilities Administration ("DDA"), houses intellectually disabled patients, see Md. Dep't of Health, State Residential Centers and Secure Evaluation & Therapeutic Treatment (SETT), https://dda.health.maryland.gov/Pages/Facilities.aspx (accessed Feb. 14, 2020); Perkins, which is overseen by the Department's Behavioral Health Administration, "is a maximum-security psychiatric hospital reserved for patients who have committed violent felonies," State v. Crawford, 239 Md. App. 84, 101 (2018), or who are "charged with serious crimes," see also Powell v. Md. Dep't of Health, 455 Md. 520, 532 (2017). At both facilities, Mr. Mobley worked as a therapeutic recreator, in which capacity he "engage[d] with residents and patients in therapeutic recreational activities."
As part of his work at SETT, Mr. Mobley was trained in Behavioral Principles and Strategies ("BPS"), a curriculum developed by the DDA "to keep people safe when a clientis out of control behaviorally." "BPS . . . teaches that when faced with an aggressive resident, staff should first verbally deescalate and create distance between him/herself and the resident and then, only if the aggression continues, staff should deploy blocking techniques." "BPS also trains [staff] to provide the least restrictive, non-injurious mechanisms of control over aggressive behavior." A similar curriculum, Prevention and Management of Aggressive Behavior ("PMAB"), has been developed by the Behavioral Health Administration for use at Perkins. PMAB "teaches that, absent a life threatening situation, physical intervention by staff on a patient is not to be attempted alone," but only by "at least two staff working as a team." Mr. Mobley had been trained in PMAB, as well.
On October 24, 2016, Mr. Mobley was on duty in the lobby at SETT when he was confronted aggressively by a patient, A.S. Mr. Mobley "failed to create distance" between himself and A.S., and A.S. "threw a punch at [Mr. Mobley]." Mr. Mobley "responded by punching [A.S.] back, hitting [A.S.] on the left side of the face," which is not permitted by BPS or PMAB. A.S. "then shoved [Mr. Mobley] down to the floor and repeatedly punched him in the head."
Two SETT police officers responded and "requested multiple times that [Mr. Mobley] disengage and leave the building so that the officers could intervene and deescalate [A.S.]." Mr. Mobley failed to leave the building and "continued to fight [A.S.], . . . hit[ting] [A.S.] two more times in the head." "The altercation escalated into a tug-of-war situation where[] some individuals were pulling and trying to disengage [Mr. Mobley] while others were trying to disengage [A.S.]" Eventually, Mr. Mobley and A.S. were separated, but Mr. Mobley continued to "disregard[] all directions and requests for him to leave the building." When A.S. returned to the lobby shortly thereafter, he and Mr. Mobley "ended up on the floor, fighting again." "Staff again had to separate the two and they had to forcibly usher [Mr. Mobley] out of the facility, after he refused to exit at the request of the police officers."
Once he had been removed from the building, Mr. Mobley "attempted to push past" one of the police officers "in an effort to attempt to regain entry." The officer and other staff members blocked Mr. Mobley from reentering. Mr. Mobley "was argumentative and belligerent" in response. "Four staff members were needed to prevent [Mr. Mobley] from regaining entry."
The entire incident was recorded from multiple angles by SETT's security cameras.
On November 2, 2016, Commanding Officer Patrick L. Morris of the DDA/SETT Police Department asked Officer Robert Patton—a former Baltimore homicide detective with over 30 years' experience—to investigate the fight between Mr. Mobley and A.S. Officer Patton read written statements and police incident reports produced by witnesses to the incident, interviewed the two police officers present during the altercation, and conducted a frame-by-frame review of the security camera footage. In a report dated November 7, 2016, Officer Patton stated that although A.S. "was the initial physical aggressor," "Mr. Mobley failed to utilize his Behavioral Principles and Strategies training" to deescalate and instead "engage[d] in full combat" with A.S., which led to him "punching patient [A.S.] three times in the head." Officer Patton also determined that Mr. Mobley"was deliberate in his failure . . . to disengage and leave the facility."...
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