Montgomery v. ECI

• Decision Date: 10 November 2003
• Docket Number: No. 13,13
• Citation: 835 A.2d 169,377 Md. 615
• Parties: Sheila MONTGOMERY v. EASTERN CORRECTIONAL INSTITUTION, et al.
• Court: Maryland Court of Appeals

835 A.2d 169

377 Md. 615

Sheila MONTGOMERY v. EASTERN CORRECTIONAL INSTITUTION, et al.

No. 13, Sept. Term, 2003.

Court of Appeals of Maryland.

November 10, 2003.

Robin R. Cockey (Cockey Brennan & Maloney, P.C.) of Salisbury, for petitioner.

Scott S. Oakley, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), of Baltimore, for respondents.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ HARRELL, Judge.

On 9 September 1999, Petitioner, Sheila Montgomery, an administrative assistant in the Warden's Office at the Eastern Correctional Institution ("the ECI") in Westover, Maryland, filed a personnel grievance against her then supervisor, the Acting Warden, George Kaloroumakis. Approximately two months later, Montgomery was reassigned by the newly appointed Warden, Robert Kupec, to an administrative assistant position, at the same pay and classification, in the ECI's Maintenance Department. Montgomery, a few months after that event, filed a "Whistleblower" complaint with the Secretary of the Maryland Department of Budget and Management ("the Department") that Montgomery contends comes within the ambit of subtitle 3 of section 5 of the State Personnel and Pensions Article of the Maryland Code (1993, 1997 Repl.Vol.), entitled "Maryland Whistleblower Law in the Executive Branch of State Government" ("Whistleblower Law"). In sum, Montgomery there complained that her reassignment was in retaliation for having filed the initial personnel grievance against Kaloroumakis. The Department found no merit in Montgomery's "Whistleblower" complaint. Montgomery then appealed that action to the Maryland Office of Administrative Hearings ("OAH").

An administrative law judge ("ALJ") of the OAH, relying on federal precedent interpreting the federal Whistleblower Protection Act ("WPA") upon which the Maryland statute was based, ruled that the information contained in Montgomery's "Whistleblower" complaint "challenging the actions of a supervisor towards an employee is not a protected disclosure" within the meaning of the Maryland Whistleblower Law.¹ The ALJ ruled further that Montgomery's complaint did not allege facts sufficient to show that she had made disclosures that were protected by Maryland's Whistleblower Law.

Montgomery filed a petition for judicial review of the ALJ's decision in the Circuit Court for Somerset County. After a hearing, the judge concluded that Montgomery's complaint about the behavior of her supervisor is not a protected disclosure under Maryland's Whistleblower Law and affirmed the ALJ.

Regarding Montgomery's direct appeal, the Court of Special Appeals, in an unreported opinion, affirmed. We granted Montgomery's petition for writ of certiorari, Montgomery v. Eastern Correctional, 374 Md. 358, 822 A.2d 1224 (2003), to consider the question:

1. Has a State employee who has filed a grievance about the behavior of her supervisor, complaining that he has created a hostile work environment that is detrimental to her career, made a "protected disclosure" under Maryland Code section 5-305 of the Maryland Whistleblower Act, in the State Personnel & Pensions Article?

I.

Sheila Montgomery, prior to 8 November 1999, was for a number of years an administrative aide in the Warden's Office at the ECI. She served as a personnel liaison between the Warden and staff members at the ECI and was responsible for maintaining the Warden's calendar and drafting letters for his signature. In June 1999, Warden Ralph Logan left the ECI and was replaced, on a temporary basis, by Acting Warden George Kaloroumakis. Between June and September 1999, Montgomery served as an administrative aide to Acting Warden Kaloroumakis.

On 9 September 1999, Montgomery filed a grievance with the State Personnel Management System complaining about the Acting Warden's behavior towards her. Under the section of the form asking Montgomery to state her grievance, she wrote: "Ongoing and continuing harassment by the Acting Warden (George Kaloroumakis) which constitutes a hostile work environment or places me in a hostile work environment." Under the heading "The issues of fact and law that support the employee's appeal," she stated:

The derogatory demeanor and belittling comments of the Acting Warden ... in my opinion create a hostile work environment which is detrimental to my career with the State of Maryland and creates a hostile work place. I feel his behavior violates Executive Order 01.01.1995.19 Code of Fair Employment Practices.[²] The remedy sought in Montgomery's grievance was that she

wish[ed] to be able to be given the opportunity to perform [the] functions of [her] classification and that the State provide meaningful conflict resolution which would be agreeable to both parties of the grievance and that proper and adequate sensitivity training be provided.

As previously related, the newly appointed Warden Kupec transferred Montgomery on 9 November 1999 from her administrative assistant's position in the Warden's Office to one in the ECI's Maintenance Department. In addition to the physical surroundings of her new workplace not being as nice as in the Warden's Office, Montgomery observed that her secretarial duties became less challenging and fulfilling and generally that the prestige of her new position was less. Nevertheless, she suffered no decrease in classification or pay.³

Consequently, about six months after filing the personnel grievance and four months' service in her new position, Montgomery wrote a letter (the "Whistleblower" complaint), dated 20 March 2000, to Frederick W. Puddester, the Secretary of the State Department of Budget and Management. In the "Whistleblower" complaint, she alleged that the November 1999 transfer was a reprisal for filing her grievance against Acting Warden Kaloroumakis.

In her "Whistleblower" complaint, Montgomery explained that Kaloroumakis referred to office workers as "peons" and "made disparaging remarks about our income and social standing." When she and a co-employee attempted to bring to his attention their objections regarding his behavior, Kaloroumakis reportedly acknowledged making "the discourteous remarks attributed to him" and also admitted that he "express[ed] himself in a manner `locals' might consider sarcastic or even abrasive." Kaloroumakis summarily rejected their complaints by saying that "such behavior was the norm in his native New York."

Montgomery's "Whistleblower" complaint letter was referred by Secretary Puddester to the Office of the Statewide Equal Employment Opportunity ("EEO") Coordinator.⁴ On 2 June 2000, the Acting Statewide EEO Coordinator wrote a letter to Montgomery advising her that the evidence of record did not support her allegations that she had made a protected disclosure under the Whistleblower Law and that, accordingly, no violation of that Act was found. Montgomery noted an appeal to the OAH, pursuant to Md.Code (1993, 1997 Repl.Vol.), § 5-310 of the State Personnel and Pensions Article.⁵ The ECI responded by filing a "Motion for Summary Decision."⁶ In that motion, the ECI contended that the information contained in Montgomery's grievance did not constitute a "protected disclosure" under the Whistleblower Law. The ALJ treated the ECI's "motion for summary decision" as a motion to dismiss on the ground that the complaint failed to state a cause of action upon which relief could be granted. Accordingly, the ALJ treated all allegations in Montgomery's complaint as true. Relying on federal precedent interpreting and applying the WPA, upon which the Maryland statute was based, the ALJ ruled that "challenging the actions of a supervisor towards an employee is not a protected disclosure" under the Maryland Whistleblower Law. Alternatively, the ALJ ruled that the type of information disclosed by Montgomery in her complaint was not protected by the Act because (1) the disclosure was "not a matter of interest to the greater public" and (2) the "disclosure in the grievance in no way addressed the fiscal, health, or safety concerns of the public at large, which is an essential element of a" claim under the State Whistleblower Law. On those grounds, the ALJ ruled that the complaint did not allege facts sufficient to show that Montgomery had made disclosures that were protected by the Whistleblower Law.

On 30 November 2000, Montgomery filed a petition for judicial review in the Circuit Court for Somerset County. Following a hearing on 24 July 2001, the judge opined in open court:

"[T]his court agrees [with the ALJ]... that under the federal Whistleblower Act, which is ... similar to Maryland's Act, [an] employee[`]s complain[t] about the behavior of a supervisor is not a protected disclosure. The court is not persuaded that a hostile work environment is a protected disclosure under the Whistleblower Act. And it appears to this court that the Whistleblower statute does not cover the type of conduct that Ms. Montgomery was alleging. The court finds no error as a matter of law.

* * *

"An administrative agency's decision must be reviewed in the light most favorable to the agency since decisions of administrative agencies are prima facie correct and carry with them the presumption of validity. Therefore the court will affirm the decision of the administrative law judge."

After the hearing, by written order, dated 27 July 2001, the Circuit Court affirmed the decision of the ALJ.

In the Court of Special Appeals, Petitioner argued that an allegation of a "hostile work environment" affecting co-workers as well as herself is not the type of personal grievance that is prohibited under federal law from being pursued as a whistleblower complaint. Petitioner also maintained that the Maryland state employee personnel law affords employees who are retaliated against for filing a grievance the option of filing a whistleblower complaint. In addition, Petitioner argued that the ALJ may not...