Stuples v. Baltimore City Police Dept., 674

CourtCourt of Special Appeals of Maryland
Citation704 A.2d 518,119 Md.App. 221
Docket NumberNo. 674,674
Decision Date01 September 1997

Page 221

119 Md.App. 221
704 A.2d 518
Bobby L. STUPLES, Jr.
No. 674, Sept. Term, 1997.
Court of Special Appeals of Maryland.
Jan. 13, 1998.

[704 A.2d 520]

Page 224

Michael Marshall (Schlachman, Belsky & Weiner, P.A., on the brief), Baltimore, for Appellant.

Bernard Ilkhanoff, Asst. City Solicitor (Frank C. Derr, Deputy City Solicitor, on the brief), Baltimore, for Appellee.

Argued before MOYLAN, HOLLANDER and EYLER, JJ.

MOYLAN, Judge.

The appellant, Bobby L. Stuples, Jr., broadly asserts that his appeal presents the question:

Should an employee who is found by a court to be terminated wrongfully be reinstated and awarded retroactive back pay pending a legal termination proceeding?

The question, thus framed, presents an issue far too sweeping for our consideration. Its resolution would call for us to sit as the equivalent of a trial court or even an administrative agency, exploring, as a matter of first impression, the nuanced merits of the appellant's cause.

The sober reality is that appellate review is far more constrained. We are not necessarily concerned with the ultimate merits of the appellant's alleged grievance. We are concerned only with whether the judicial machinery designed to deal with those merits was operating properly. The appellant must pose for us a precise instance wherein a trial judge 1) was timely called upon to make a specific ruling, 2) either failed to rule or ruled erroneously, and 3) the ruling, if erroneous, is ripe for appellate review.

Page 225

The Factual and Procedural Background

The appellant was a police officer who was charged in a departmental disciplinary proceeding with sexual harassment. It was alleged that on several occasions between March 20 and May 22, 1992, he had "directed gestures and sexually explicit language" toward two female police officers. A Hearing Board found the appellant guilty as charged and recommended that his employment be terminated. The Police Commissioner adopted the Board's recommendation and terminated the appellant's employment on November 30, 1994.

The record extract that the appellant has provided includes neither the formal findings or recommendations of the Hearing Board nor the official order of the Police Commissioner. We have, therefore, no indication that either of those parties expressly directed that any action be taken with respect to the appellant's pay status during any of the time periods while the charges against him were pending.

The appellant appealed that action by the Police Department to the Circuit Court for Baltimore City. The Petition for Judicial Review did not raise any issue with respect to the appellant's pay status. It stated simply:

Bobby L. Stuples, Jr., the defendant in the administrative proceeding, requests that an appeal be entered pursuant to Maryland Rule 7-201 et seq. from the Order of Commissioner Thomas C. Frazier, dated November 30, 1994, upholding the administrative trial board's recommendation of termination from the Baltimore City Police Department.

[704 A.2d 521] The appellant also complied with Maryland Rule 7-207(a), which provides that a petitioner

shall file a memorandum setting forth a concise statement of the questions presented for review, a statement of facts material to those questions, and argument on each question, including citations of authority and references to pages of the record and exhibits relied on.

Pursuant to the Rule, the appellant set forth a concise statement of his three contentions: 1) that he had been found

Page 226

guilty of offenses for which he had not been charged, 2) that the decision of the Trial Board was arbitrary and capricious and was not supported by legally sufficient evidence, and 3) that the sanction imposed by the Trial Board, termination from employment, was excessive. Not one of those contentions even alluded to the subject of retroactive back pay. As further required by the Rule, the appellant presented a statement of facts material to the questions raised. Those facts had nothing to do with retroactive back pay. As further required by the Rule, the appellant presented argument on each of the three questions raised, along with citations to pertinent Maryland case law. None of that authority had the slightest bearing on the issue of retroactive back pay.

On the fourteenth and final page of the appellant's memorandum the final conclusory sentence did, to be sure, move that "the decision of the Baltimore City Police Department should be reversed and Officer Stuples should be reinstated with retroactive back pay and seniority." The actual arguments raised in and supported by the memorandum, however, had not even alluded to the issue of retroactive back pay and seniority.

Following a hearing in circuit court on August 1, 1995, Judge Thomas E. Noel orally indicated from the bench that he intended to vacate the departmental decision and to remand the case to the agency for further proceedings. We have reviewed the transcript of the hearing before Judge Noel on August 1, 1995 and find that in the course of those proceedings not one word even alluded to the entitlement of the appellant, should he prevail, to retroactive back pay. The almost exclusive focus of the hearing was on the fact that the appellant was indisputably guilty of some grossly inappropriate and harassing sexual conduct in the presence of two female police officers but that the inappropriate conduct had not, as charged, been specifically directed at them. It was that lack of agreement between the allegata and the probata that persuaded Judge Noel to vacate the judgment against the appellant and to remand the proceeding to the Trial Board:

Page 227

I find that the Board's decision that his conduct created a hostile work environment to be supported by substantial evidence. The problem I have, however, is with the way he was charged.

(Emphasis supplied).

Judge Noel's findings, however, made it abundantly clear that the evidence established misconduct on the part of the appellant sufficient to justify his termination from employment:

[W]hen you get to the specification that he directed his conduct toward two particularized individuals, ... the evidence supports a completely different finding. I find that he was inappropriately charged. That's not to say that his conduct was not of an offensive nature, and that his conduct would not have constituted sexual harassment, but he was not properly charged.... [H]e was simply mischarged. Consequently, I'm vacating the decision of the Board and remanding this matter.

(Emphasis supplied).

Although it may have been gratuitous in view of his disposition of the administrative appeal, Judge Noel went out of his way to announce his findings 1) that the decision of the Trial Board had not been arbitrary or capricious and 2) that the sentence imposed did not shock the conscience of the court:

I find that there was not arbitrariness or capriciousness in the decision of the reviewing Board. The subject of the sentence or sanction imposed, I don't find to actually shock the court. Particularly in light of the conduct, because when you consider the definition of sexual harassment, I believe his conduct meets that [704 A.2d 522] standard quite clearly without any problem whatsoever.

(Emphasis supplied).

Rather than terminate the proceeding in the appellant's favor, Judge Noel's decision was to remand the case to the Trial Board for possible further action:

Page 228

So the matter is vacated and remanded to the Board either to review this matter and one, to see if in fact the decision would be sustained whether this charge is part of the case or not. And two, [if it] would be an alternative procedure to charge him properly, and take testimony on that issue.

(Emphasis supplied).

Judge Noel's formal order of September 28, 1995 (filed on October 2) indisputably did not terminate the litigation but only remanded it to the administrative agency for further proceedings. Although directing that the charging document would have to be amended by the deletion of several words, the decision of the circuit court in every other respect placed its imprimatur upon the findings of the Trial Board:

ORDERED, that the decision of the trial board in the above captioned case is vacated and the case is remanded for further proceedings upon the court's finding that the Petitioner was charged with "directing" his comments and actions toward various individuals, but that the evidence supported only a finding that the comments and actions were done in the presence of various individuals and the Petitioner was therefore inappropriately charged, and it is

FURTHER ORDERED, that the case may be retried after the charges have been modified to delete the words "directed towards" and/or resubmitted to the trial board for a determination whether the evidence supports a finding that the comments and actions were "directed towards" various individuals, and it is,

FURTHER ORDERED, that this Court finds that there was sufficient evidence to support the allegation that the Petitioner made the comments and/or gestures of which he was accused and that the Court will not review the credibility of witnesses; therefore, this Court finds that the trial board's decision was not arbitrary and capricious, and was supported by sufficient facts, and it is

FURTHER ORDERED, that the Court does not find that the sentence of termination sufficient to shock the conscience of the Court and that the conduct of the Petitioner

Page 229

meets the standard of sexual harassment and creating a hostile work environment.

(Emphasis supplied).

In the wake of Judge Noel's disposition, the appellant filed, presumably pursuant to Maryland Rule 2-535, a Motion to Exercise Revisory Power. In it, he raised for the first time the issue of his payroll status, arguing that Judge Noel's vacating of the Trial Board's decision "removed the only impediment to Mr....

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