Rogers v. Radio Shack

• Decision Date: 31 January 1974
• Docket Number: No. 170,170
• Citation: 314 A.2d 113,271 Md. 126
• Parties: Dannie A. ROGERS v. RADIO SHACK et al.
• Court: Maryland Court of Appeals

Page 126

271 Md. 126

314 A.2d 113

Dannie A. ROGERS v. RADIO SHACK et al.

No. 170.

Court of Appeals of Maryland.

Jan. 31, 1974.

Dennis M. Sweeney, Baltimore, for appellant.

Diana G. Motz, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and Joel J. Rabin, Asst. Atty. Gen., Baltimore, on the brief), for appellees.

Argued before MURPHY, C. J., and BARNES, SINGLEY, SMITH, DIGGES, LEVINE and ELDRIDGE, JJ.

ELDRIDGE, Judge.

This appeal involves a denial by the Employment Security Administration of 10 weeks' unemployment insurance benefits to the appellant, Dannie A. Rogers. The denial of benefits was based upon the administrative determination that Rogers had been guilty of misconduct which led to his discharge.

Dannie A. Rogers was the manager of a retail store in Hyattsville, Maryland, owned by his employer, Allied Radio Shack. On January 31, 1972, the employer's district manager and another man came to the store and informed Rogers that he was being fired. According to Rogers's testimony, the two men stated that the discharge was because Rogers installed a citizen's band radio in his car, because he loaned a stereo set to a customer, and because the store's petty cash was allegedly $70.00 short. Thereafter, in response to Rogers's application for unemployment insurance benefits, the employer filed a statement with the Employment Security Administration saying that Rogers had been discharged for misconduct. The misconduct was described as taking company funds and merchandise without authorization and for Rogers's personal use in violation of company policy. The official of Allied Radio Shack signing the statement designated himself as 'Tax Accountant.'

A claims examiner of the Employment Security Administration determined that Rogers's discharge was due to his 'gross misconduct' and that, therefore, Rogers was disqualified from receiving benefits. Under the Maryland Unemployment Insurance Law, a discharge for 'gross misconduct' totally disqualifies an employee from receiving benefits whereas a discharge or suspension for ordinary 'misconduct' results in the denial of benefits for a period from two to ten weeks, depending on the seriousness of the misconduct. Maryland Code (1957, 1969 Repl.Vol.), Art. 95A, §§ 6(b) and 6(c).

Rogers appealed the claims examiner's determination to an appeals referee. After a hearing, at which the employer did not appear but Rogers testified extensively, the referee affirmed the claims examiner's decision. Thereafter, Rogers took an appeal to the Board of Appeals of the Employment Security Administration. The Board initially declined to review the referee's decision but, after receiving new evidence, the Board granted Rogers another hearing before a special examiner designated by the Board. The new evidence consisted of a letter signed by the vice president of Radio Shack, advising the Employment Security Administration that the information previously furnished by the employer was 'untrue,' in that Rogers's actions did not constitute gross misconduct, and that he did not convert funds or merchandise to his own benefit. The letter concluded by stating that the employer would be willing to rehire Rogers.

At the hearing before the special examiner, the employer again did not appear, and the only evidence consisted of Rogers's testimony. Following the hearing, the Board of Appeals held that there was insufficient evidence to sustain the prior finding of gross misconduct. Nevertheless, the Board found that Rogers was guilty of ordinary misconduct connected with his work, and it disqualified him from receiving benefits for the maximum ten-week period.

Rogers appealed the administrative decision to the Circuit Court for Prince George's County, and the court affirmed the Employment Security Administration's decision. From that order of affirmance, Rogers prosecutes the present appeal. The employer did not participate in the proceedings either before the circuit court or this Court.

Two questions are raised on this appeal. First, Rogers contends that the circuit court should have granted his motion to strike a certain document from the administrative record. Second, he claims that there was an insufficient evidentiary basis for the administrative determination that he was guilty of misconduct.

(1)

At some time during the administrative proceedings, an investigation into Rogers's discharge was apparently ordered by the administrative officials, and the investigator's report wa included in the record submitted to the circuit court. Rogers filed a motion in the circuit court to strike the investigator's report from the record on the grounds that it had never been introduced in evidence at any of the hearings, that Rogers and his representative had been unaware of it until several months after the administrative decision, and that there had been no opportunity to cross-examine the investigator or rebut the contents of the report. The circuit court denied the motion to strike.

Administrative agencies, while not bound by common law rules of evidence, 'must observe the basic rules of fairness as to parties appearing before them.' Dal Maso v. Board of County Comm'rs, 238 Md. 333, 337, 209 A.2d 62, 64 (1965). We agree with Rogers that under the circumstances here, with no opportunity for cross-examination or rebuttal, fundamental fairness would preclude reliance upon the report by an administrative agency or a reviewing court. Dal Maso v. Board of County Comm'rs, supra; Temmink v. Board of Zoning Appeals, 205 Md. 489, 496-497, 109 A.2d 85, 89 (1954); Dembeck v. Shipbuilding Corp., 166 Md. 21, 170 A. 158 (1934). Nevertheless, our examination of the record convinces us that neither the Board of Appeals nor the circuit court placed any weight upon the investigator's report. Because of this, we need not decide whether, as a technical matter, the court should have stricken the report from the administrative record. Any error in this regard was harmless. This is particularly so in light of our disposition of the case.

(2)

The appellant's second claim of error relates to the evidentiary basis for the administrative determination that he had engaged in misconduct.

The judicial review section of the Maryland Unemployment Insurance Law, Code (1957, 1969 Repl. Vol.), Art. 95A, § 7(h), provides in pertinent part:

'In any judicial proceeding under this section, the findings of the Board of Appeals as to facts, if supported by evidence and in the absence of fraud, shall be conclusive . . ..'

As no allegation of fraud is made, the question presented is whether there is sufficient support for the administrative finding that Rogers was guilty of misconduct because he used the citizen's band radio in his car as a demonstrator, because he loaned a stereo to a customer, and because of the charge that the store's petty cash was $70.00 short.

As a preface to his argument concerning the lack of evidenciary support for the administrative decision, appellant Rogers contends that the Board of Appeals' findings are concluvise only if supported by 'substantial' evidence. Reliance is placed upon this Court's opinions in Bethlehem Steel Co. v. Board of Appeals, 219 Md. 146, 150, 148 A.2d 403, 406 (1959), and Steamship Ass'n v. Unemployment...