Petition for Writ of Certiorari — Weliver v. Board of Appeals, Maryland Department of Labor (No. 07-292)

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upreme Court, U.S.

ey, 07-292 AUG 31 2007

OFFICE OF THE CLERK

Sn The

Supreme Court of the Gnited States

FATIMA G. WELIVER,

Petitioner,

BOARD OF APPEALS, DEPARTMENT OF LABOR,

LICENSING AND REGULATION OF MARYLAND

and U.S. SOCIAL SECURITY ADMINISTRATION,

Respondents.

On Petition For Writ Of Certiorari

To The Court Of Special Appeals Of Maryland

PETITION FOR WRIT OF CERTIORARI

HENRY EIGLES

Attorney at Law

10729 Evening Wind Court

Columbia, Maryland 21044

(410) 730-1195

Counsel of Record

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALA. COLLECT 1402) 342-2831

QUESTIONS PRESENTED

The Board of Appeals, Department of Labor, Licensing

and Regulation of Maryland (“DLLR”) denied unemploy-

ment insurance benefits to Petitioner, discharged from

employment from the U.S. Social Security Administration

(“SSA”), on grounds that she engaged in gross misconduct

within the meaning of Md. Code, Labor and Employment

Article, § 8-1002. The unemployment insurance benefit

program is found in § 8-101 et seq. Hearings on unem-

ployment insurance benefit claims are provided by the

DLLR Board of Appeals, with authority to appoint hearing

examiners, pursuant to § 8-505 and § 8-506. Hearings are

to be conducted in accordance with the Md. Code, State

Government Article, Administrative and Procedure Act,

§ 10-101 et seq. Judicial review is conducted pursuant to

§ 8-512(d) and under the State APA as provided for con-

tested claims. See Spencer v. Md. State Board of Phar-

macy, 380 Md. 515, 527-529, 846 A.2d 341, 348-349 (2004)

for judicial review pursuant to § 10-222(h) of the State

APA. The questions presented in this case are:

1. Did the Board of Appeals fail to provide due

process of law when the Board did not conduct a de novo

hearing and continued the hearing of the hearing exam-

iner to take additional testimony, where the hearing

examiner engaged in due process deficiencies in conduct-

ing the initial hearing, and the Board thereafter rendered

a decision based on the combined hearing record of the

hearing examiner and Board of Appeals?

2. Did the Board of Appeals fail to provide due

process of law a) when not properly considering the evi-

dence, and determined credibility of witnesses based on

QUESTIONS PRESENTED - Continued

the transcript of their testimony presented before the

hearing examiner, and b) when issuing a decision of

findings of fact without setting forth an evaluation of the

evidence presented, without resolving conflicts in the

evidence, and without setting out an evidentiary basis to

support its findings of fact?

3. Did the Maryland judiciary fail to provide due

process of law when refraining from applying applicable

established legal principles of due process that are clear in

Maryland law and as enunciated by this Court?

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED... cccccccccccccscccsccsssceseercevece i

TE A FGF FARE EOD terse cserscvescecerescauvesessurevcess iv

er TE MEET OY pices vincnévivasscnsccesenpivacneusisssdsccinvcess 1

I ci clnaciuscidcbianinneeiuprosusiabdeéinintodnbedouies 1

CONSTITUTIONAL AND STATUTORY PROV'SIONS

TIED Ai sincdenconsctahskcdesuvasemtibdaveniesicehieresesbaninend 1

Se I lt os son tuhsstn cde casindetnisennengeimiiocidasenianmsanies 2

Bh.. TNE oo dnisctes ceisctcscessinnccccccereesners 3

B. DLLR Administrative Proceedings................. 9

C. Proceedings in the Circuit Court for Anne

Arundel County, Maryland...................c:eceeeee 13

D. Proceedings in the Court of Special Appeals

AEE LED AS Ae #2 MOPS Ee OCT TT TE 15

E. Proceedings in the Court of Appeals of

PN cadankntetesilensiskcktmunsnisbiseminbenbessicihiuvediies 18

REASONS FOR GRANTING THE PETITION ......... 18

I. The Hearing Examiner Denied Petitioner

Due Process of Law Which Was the Basis for

Petitioner’s Motion for a De Novo Hearing.... 20

Ii. A. The DLLR Board of Appeals Did Not

Properly Consider the Evidence, And

Credibility of Witnesses Based On Tran-

script Testimony Upon Continuing the

Hearing of the Hearing Examiner............ 25

TABLE OF CONTENTS — Continued

Page

B. The DLLR Board of Appeals Issued a

Decision of Findings of Fact Without Set-

ting Forth an Evaluation of the Evidence

Presented, Without Resolving Conflicts

In the Evidence, And Without Presenting

an Evidentiary Basis to Support Its Find-

BN Ie I sacks csc bi civn eas ceavavatascnssdedbencndsasss 27

III. The Maryland Judiciary Denied Petitioner

BPE TIE OE BAW viricsieciorsccdizseoscivicssersecsveanes 29

ee IIT cies bekcniaddnpcceveniiiaaeieagudaubseatepeenabaas 30

APPENDICES

Appendix A — Opinion, Court of Special Appeals of

NE wissisanidinshsatepduabenteatiipesusecdias App. 1

Appendix C - Memorandum and Opinion, Circuit

Court for Anne Arundel County ........... App. 30

Appendix D — Decision, Board of Appeals, State

Department of Labor, Licensing and

Regulation of Maryland....................... App. 35

Appendix E ~ Order, Court of Appeals of Maryland

denying petition for writ of certiorari ... App. 44

Appendix F — Order denying motion for reconsidera-

iiiinlsssindnoncungeshassircsnicisntandsedcblanateaindel App. 45

TABLE OF AUTHORITIES

Page

CASES:

Ahalt v. Montgomery County, 113 Md. App. 14, 686

SN I TIITIITID Uk aecttecichiodscsdentsnetjnenol vakrualiininbinaesinngaioaios 15

Anderson v. Bessemer City, 470 U.S. 564 (1985).............. 27

Anderson vu. Dep’t of Pub. Safety & Corr. Serv’s, 330

ee re A SIP Ce is icveprenscenevenivenrsctiseesenvocee 27

Baltimore Lutheran High School Ass’n, Inc. v.

Employment Sec. Admin., 302 Md. 649, 490 A.2d

ee SIT Aiasidinntipinecesnsevcenndeuscinabindiedinbbenecencmneieetores 28

Beech Aircraft Corporation v. Rainey, 488 U.S. 153

NI cial indica teil itannddbnliahdneresbaiacendeinenieininmenineeiuds 24, 25

Beli vu. Burson, 402 U.S. 536 (1971) ....cccccvescssovseevrvevesveesseses 2

Bd. of Educ. of Montgomery County v. Paynter, 303

Pe Siig MAA FRc SAO CAO ire ceverescevscssensctonsoinesenssasone 22

Bd. of Educ. of Prince George’s County v. Waeldner,

298 Md. 354, 470 A.2d 332 (1984).........ccccccscccersesscorsees 28

Dept. of Health & Mental Hygiene v. Shrieves, 100

Md. App. 283, 641 A.2d 899 (1994) .........cccccscrreccerrteeees 27

Forman vu. MVA, 332 Md. 201, 630 A.2d 753 (1993)......... 28

Goldberg v. Kelly, 397 U.S. 254 (1970) 0... eeeeees 2,29

Kennard v. Louisiana, 92 U.S. 480 (1876).............. eee 30

Montana v. Egelhoff, 518 U.S. 37 (1996) ...... 0. eeeneeee 29

NLRB v. Metropolitan Life Insurance Co., 380 U.S.

RS ETE EE Aer Ae RN A ee EE MAE: 23, 28

Richardson v. Perales, 402 U.S. 389 (1971)................ 26

TABLE OF AUTHORITIES - Continued

Page

Shipbuilding & Drydock Co., Inc. vu. Md. Comm. On

Human Relations, 70 Md. App. 538, 521 A.2d

RE CT ittikiesst din vitcnioumeuisiienadinlindantnidciebigtii 16, 17, 23

Spencer v. Md. State Board of Pharmacy, 380 Md.

a, ae PE CP cece cacisinecinittnccminaiidusiens i, 3, 15, 28

State of Maryland v. Brown, 129 Md. App. 517, 743

PT Fe Seiichi intnccicnnbiiainsiibbieciniainiinpaiatinitnileipisicioniiis 24

Weil v. Terrell Air Conditioning, 48 Md. App. 439,

SE EF RE eiiisadeinctincneidulialnesnnlisueitasinedesaiaias 25

Weliver v. Merit Systems Protection Board, 127

i Ae MAN NIE cicoeshsinlinessichicesscecinetaeenccehinsicaasdaciindiiboeeidiclonasenapiniain 9

Willner v. Committee on Character & Fitness, 373

ee ee icc daiiesecoseiotccgcneenieibsonsieasiiaatabihabipdeibateibianmbuonaiias 8

CONSTITUTION, STATUTES, AND RULES:

CONSTITUTION

Fourteenth Amendment, Section 1 .................006 1, 18, 29

STATUTES

ey Seas te IT cai wichinddaabdtendddeinmseuniniuupdesnccduapediacionainenibbensints 1

Md. Code, Labor and Employment Article § 8-505

iF Gl icndacessubsctntonebnviderdediniatnadbéiammactatemiatembalabaniieielbins 1

IIIT: 2 sis su\ lens oucseilagisbbindiipomebeibiselbeasbinesua neuen aisolanaionalela i

TABLE OF AUTHORITIES — Continued

Page

Md. Code, State Gover -.nent Article, Administra-

tive and Procedure Act

SE NTI ccusciuiadaeiniaebaiecniesehaisnrhonrianssseunioauanabronaieisetes i

TURES ER Rane Nee ence A eae MIE AC IED ROD i

RULES

Federal Rules of Civil Procedure

ETRE AHSAN Ss aay a PORTS CAE EOS OEE 27

Federal Rules of Evidence

a acladdoubicn 24

MISCELLANEOUS: |

McCormick on Evidence (2d Ed., 1972) ..csscsssssssessesseseeese 24 :

;

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

1. The orders of the Court of Appeals of Maryland

(“CA”) denying Petitioner’s petition therein for writ of

certiorari (App. 44), and denying her motion for reconsid-

eration (id. at 45) are both unreported.

2. The decision of the Court of Special Appeals of

Maryland (“CSA”) (id. at 1), and order denying Petitioner’s

motion for reconsideration (id. at 29) are both unreported.

3. The decision of the Circuit Court for Anne Arundel

County, Maryland (id. at 30) affirming the decision of the

DLLR Board of Appeals is unreported.

4. The decision of the DLLR Board of Appeals

denying Petitioner’s claim for unemployment insurance

benefits is unreported. (Jd. at 35)

JURISDICTION

The Court of Appeals of Maryland denied Petitioner’s

petition therein for writ of certiorari to the Court of

Special Appeals of Maryland on March 16, 2007, and

denied her motion for reconsideration on June 8, 2007.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Due Process Clause contained in Section 1 of the

Fourteenth Amendment to the U. S. Constitution provides,

in pertinent part, that “[nJo State shall * * * deprive any

person of life, liberty, or property, without due process of

law *** .” Section 8-506, Md. Code, Labor and Employ-

ment Article, provides that “[a} hearing examiner, special

examiner, and the Board of Appeals shall conduct a hear-

ing or appeal that ascertains the substantial nghts of the

parties,” and “shall consider evidence offered in accordance

with § 10-213 of the State Government Article.”

STATEMENT

This case raises questions of recognition of fundamen-

tal elements of due process of law in the conduct of agency

administrative proceedings. “The hearing required by the

Due Process Clause must be ‘meaningful... ,’” and “appro-

priate to the nature of the case.” Bell v. Burson, 402 U.S.

535, 542 (1971). Further, it is an “elementary requirement

that the decision maker should state the reasons for his

determination and indicate the evidence he relied on.”

Goldberg v. Kelly, 397 U.S. 254, 271 (1970).

Prior to the hearing proceeding before the DLLR

Board of Appeals, Petitioner filed a motion for a de novo

hearing with the hearing examiner based on denial of due

process of law in the hearing proceeding before the hear-

ing examiner: a) the hearing examiner permitted gross

post hoc rationalization testimony (asserted bases for

removal not contained in the documents removing Peti-

tioner from her employment); and failed to control gratui-

tous post hoc rationalizations on cross-examination of

employer SSA’s witnesses and limit answers to the ques-

tions asked, and allowed non-responsive answers; b) the

hearing examiner would not require employer SSA’s

counsel to submit documents as evidence concurrently

with witness testimony presented about what they con-

tain, and permitted all such documents to be introduced

at the conclusion of the testimony; and c) on cross-

examination of employer SSA’s witnesses, the hearing

examiner refused to admit into evidence a document

relating to the direct testimony that was incorporated by

reference into the removal documents, and refused to

admit into evidence documents so to show a defect in the

opponent’s case in chief.

When ruling on Petitioner’s motion for de novo hear-

ing, the hearing examiner transferred the case to the

jurisdiction of the Board of Appeals with a recommenda-

tion that it be referred to the Maryland Office of Adminis-

trative Hearings (“OAH”) to conduct a de novo hearing.’

Rather than referring the case to OAH or conducting a

de novo hearing itself, the Board of Appeals simply contin-

ued the hearing proceeding of the hearing examiner to

take testimony of Petitioner and her witnesses, and

incorporated the hearing examiner’s record as its own. The

Board rendered its decision denying Petitioner’s claim for

unemployment insurance benefits when ruling that

“testimony of the employer’s witnesses {and Petitioner’s

hostile witness] [as viewed in the hearing transcript] to be

more credible than Petitioner’s [in person] testimony.” Its

decision also sets forth findings of fact without evaluation

of the evidence presented, without resolving conflicts in

the evidence, and without presenting an evidentiary basis

to support its findings of fact.

Review by this Court is warranted to further clarify

the standards and procedural safeguards to afford due

process of law in the conduct of agency administrative

hearings.

A. Factual Background

1. This case arises out of removal of Petitioner

Fatima Weliver from her employment with the Social

Security Administration. Until June 4, 2004, Weliver, a

native Brazilian naturalized U.S. citizen, with a baccalau-

reate degree in International Relations from Ohio State

' Delegation of matters to OAH is not a mandatory function but is

within the discretion of the State administrative agency. Spencer v. Md.

State Board of Pharmacy, supra, 846 A.2d at 347.

University, who speaks four languages: English, Spanish,

Portuguese, Italian, held the position of Claims Examiner

with the Glen Burnie, Maryland SSA District Office where

she was employed as a bilingual Claims Examiner. See

CSA Joint Record Extract (“E.”), at 369, 376. Weliver had

been employed by SSA for over four years and had re-

ceived acceptable performance ratings when removed from

her employment. (E. 365)

During her tenure with the SSA, Weliver had claimed

harassment and abuse by her office management: Linda

Faulkner-Martin, Manager, and Donna Jones, Assistant

Manager, of the Glen Burnie, Maryland SSA District

Office. Following a grievance filed on her behalf by

Weliver’s union (Local 1923, American Federation of

Government Employees) alleging harassment and abuse,

SSA entered into an agreement on August 9, 2002 provid-

ing for placement of Weliver in an SSA union office outside

of the Glen Burnie office. (E. 369) In April, 2003, however,

Faulkner-Martin without cause cancelled Weliver’s union

placement and compelled her to return to the Glen Burnie

office. This action, as Weliver contends, violated the

settlement agreement and that upon her return to the

Glen Burnie office she was again subject to harassment

and abuse by Faulkner-Martin and Jones. Jbid.

2. On March 24, 2004, Assistant Manager Jones issued

a letter proposing to remove Weliver from her job, citing two

grounds: (a) failure to follow a management directive; and (b)

conduct unbecoming a federal employee. (E. 185)

In this letter Jones faulted Weliver for telephoning a

few other employees, in a training class, at their home

after working hours. (Jd. at 186) According to Jones, these

calls “violated a management directive” forbidding Weliver

to call “your classmates at home” after working hours. (/d.

at 185) This directive, Jones contended, was issued after

management received complaints by Weliver’s classmates

about critical comments she had made “about manage-

ment officials.” Jbid.

Jones’s letter also faulted Weliver for “conduct unbe-

coming a federal employee” — allegedly behaving in a

manner that was “disrespectful and discourteous” as well

as “disruptive.” (Jd. at 186) Weliver’s supposedly unac-

ceptable behavior, virtually all of which was in her direct

interactions with Jones, included objecting to participating

in a meeting about her workplace behavior with Jones

without being allowed to have her lawy r present. (/d. at

187) Jones terminated the meeting after initially permit-

ting Weliver to call her lawyer and thereafter making

Weliver end the telephone call “because [Weliver] started

discussing issues that were not relevant to our conversa-

tion.” Ibid. This and other behavior on Weliver’s part,

Jones’s letter claimed, “violated the letter, spirit, and

intent of government wide and agency standards of con-

duct.” (Jd. at 187, 188) (“Without question, such behavior

is non compliant and aberrant — overstepping recognized

workplace norm [sic].”)

On April 2, 2004, Jones rescinded the March 24, 2004

proposal to remove letter (E. 184), and sent Weliver a

revised letter setting forth additional reasons for the

proposed removal from her job. (E. 176) In addition to

reiterating the earlier charges and allegations verbatim,

the revised letter included new allegations to support

Jones’s claim that Weliver had engaged in “conduct unbe-

coming a federal employee.” Specifically, Jones’s revised

letter stated that Rebecca Gartelman, an office cleaning

maintenance worker, employed by an outside contractor

rather than by SSA, had complained to District Office

Manager Linda Faulkner-Martin of various assaults by

Weliver on March 16, 2004 and assaults on March 29,

2004 and that Weliver had been “tormenting” her. (/d. at

178) Among other things, it is alleged, that Gartelman

told agency management, Faulkner-Martin and Jones,

that Weliver had come up behind her while Gartelman

. was cleaning a commode and forced her head down into a

toilet, causing the ends of Gartelman’s hair to get wet from

the toilet water, and all the while screaming at Gartelman:

“You know that you are a dirty rat, don’t you?” (Jd. at 179)

Jones’s revised letter also cited as a further example of

“conduct unbecoming a federal employee” Weliver’s re-

fusal, at a meeting on March 31, 2004, to discuss her

workplace behavior with Jones (after Jones, once again,

refused to allow Weliver to have her lawyer present for the

meeting). Ibid.

3. After receiving the April 2, 2004 letter proposal to

remove, Weliver through counsel, on April 29, 2004 sub-

mitted a written response to Jones’s letter. (E. 168) Among

other things, Weliver vigorously disputed the veracity of

Rebecca Gartelman’s charges and noted that because

Weliver was undergoing certain treatments for cancer, she

simply lacked the physical strength to push another

person’s head into a toilet bowl. (Jd. at 169) Weliver also

contended that the charge that she disobeyed a manage-

ment directive not to phone her co-workers after work

hours was “bogus” and any such directive was clearly

beyond the agency’s authority. (/d. at 170) Such authority

extends only “at the worksite,” and “[m]anagement may

not discipline an employee who refuses to obey an order

that is found to be unlawful or illegal.” (SSA Managers

Labor Relations Handbook. (E. 336)) In addition, Weliver

claimed that agency management had violated the 2002

settlement agreement as well as her right to have her

attorney present at meetings related to her job perform-

ance. (E. 168-169)

On May 26, 2004, Weliver’s counsel sent a letter to

Commissioner of Social Security Administration JoAnne

B. Barnhart explaining that Weliver had “been [the]

subject of orchestrated harassment and abuse by the Glen

Burnie District Office, and now that [same] management

was seeking to remove her from the Federal Government”

based on unfounded allegations and “false testimony.”

Counsel referred to his telephone interview with Gartel-

man on April 1, 2004. (E. at 226) Counsel requested that

the Commissioner review, investigate, and resolve this

matter, “instead of the Regional Office, Region I[i, which

has oversight responsibility for the Glen Burnie District

Office.” (Id. at 227) Along with this letter, counsel enclosed

Jones’s April 2, 2004 proposal to remove and Weliver’s

April 29, 2004 response to Jones’s allegations. (Jd. at 226)

Six days after Weliver requested intervention by the

Commissioner’s office, Faulkner-Martin by letter of June

1, 2004, adopted Jones’s April 2, 2004 proposal to remove

letter in all respects, effective June 4, 2004 — “adoptling]

and incorporat[ing] herein all of the reasons for removal

articulated by Ms. Jones in her April 2, 2004 Proposal to

Remove.” (E. 170) Faulkner-Martin concluded that Weliver

was a “divisive force in this office” and should be fired. (Jd.

at 171)

4. On June 3, 2004, Weliver’s counsel sent another

letter to SSA Commissioner Barnhart again requesting

that the Commissioner resolve this matter and taking

issue with the numerous statements made in Faulkner-

Martin’s June 1, 2004 termination letter. (E. 228)’ Among

other things, counsel again reported (set forth in an

affidavit (E. 208)) that he had spoken with Rebecca Gar-

telman on April 1, 2004 (id. at 229), three days after the

alleged incident involving the lavatory and one day before

* Attached to the June 3 letter from Weliver’s counsel was a copy of

an April 7, 2004 letter from Weliver’s physician (previously submitted

to agency counsel on April 12, 2004) attesting that Weliver had under-

gone surgery and radiation for breast cancer, that she continues to

“experience[] pain in her breast,” and that “she remains at high risk.”

(E. 229, 368)

Donna Jones issued her revised proposal to remove letter.’

He explained that Gartelman’s “demeanor” during the

telephone interview — and a friendly note of March 24,

2004 containing her telephone number (in contrast to

charges of Gartelman being assaulted on March 16, 2004),

a week or so before April 1, 2004, given to Weliver — flatly

refuted any suggestion that Weliver was threatening and

harassing Gartelman, as Faulkner-Martin and Jones

claimed in firing Weliver. (/d. at 229) Both communications

to the Commissioner were forwarded to the Regional Com-

missioner Laurie Watkins, Region III — who gave the matter

short shrift. “If Ms. Weliver wishes to appeal the personnel

action against her, she may avail herself of the statutory or

contractual processes available to her.” (E. 231)

* Gartelman was calm and expressed no fear of Weliver, and,

instead, revealed orchestrated harassment of Weliver by Faulkner-

Martin: she instructed the Security Guard (not an Office employee) to

follow and closely monitor Weliver in the office; the Security Guard

gives Weliver a hard time, makes fun and harasses her; and most

employees in the Office make fun of Weliver and Weliver is harassed

and no one tries to help her. Gartelman’s oral statements to counsel

thus implicitly demonstrated that her subsequent assault charges

against Weliver, presented by Faulkner-Martin and Jones in the agency

case file (E. 216, 217) were false. (Gartelman’s statement of counsel’s

telephone interview with her is likewise false. Jd.)

* This appears to be a collusive action by SSA. Linda Faulkner-

Martin has since been elevated by SSA from District Office Manager,

Glen Burnie, Maryland to the position of Human Resources Center

Director, Office of Management and Operations Support, Office of

Central Operations. (Source: Leadership Directories, Inc.)

Petitioner appealed the removal to the Merit Systems Protection

Board which assigned the case to an Administrative Judge. MSPB No.

PH-0752-04-0428-I-1. Issues of denial of due process also arose therein

in view that the Administrative Judge by her rulings did not allow

Petitioner to develop her case during pre-hearing discovery, particularly

to depose Rebecca Gartelman, nor issue a subpoena for Gartelman (on

whose statements of the toilet bow! assault Petitioner was removed

from her employment, cf. Willner v. Committee on Character & Fitness,

373 U.S. 96 (1963)) to testify at the scheduled hearing a few days

(Continued on following page)

5. On June 6, 2004, after being removed from her

employment with SSA, Weliver filed for unemployment

insurance benefits with the Maryland State Department of

Labor, Licensing and Regulation, Office of Unemployment

Insurance, stating: “I was discharged on 06/04 because I

am the victim of a horrible discrimination scam. I was

accused of shoving a cleaning lady’s head into the toilet on

03/29/2004. They are accusing me of harassing Mr. Taylor

and others involved in our organization. I did not do any of

this.” (E. 323)

B. DLLR Administrative Proceedings

A lower level telephone hearing conducted on July 27,

2004 (E. 325) included documents submitted ex parte by

SSA (E. 319, 320). “The employer provided written state-

ments from Bobby Keaton and Suzy Solis indicating that

they had been threatened and harassed by the claimant.”

(E. 325) On further appeal, an in-person hearing was held

before a hearing examiner on October 1, 2004 and was

discontinued because Weliver’s counsel fell ill. (App. 37)

Because of being rushed during that hearing, being in the

nature of an “ambush,” counsel requested a new hearing

by another hearing examiner. Jbid. During a de novo

hearing on January 11, 2005 before Chief Hearing Exam-

iner Louis Wm. Steinwedel (E. 232) evidence was taken, at

following the prehearing conference — notwithstanding that the

Administrative Judge had committed to issuing the subpoena during

the prehearing conference. To withdraw from a hearing at which

Petitioner could not present her evidence and with foreseeability would

have resulted in an MSPB published decision damaging to her reputa-

tion, Petitioner under such duress moved to dismiss. The Administra-

tive Judge’s subsequent dismissal of that case was affirmed by the

Board of the MSPB and affirmed by the Federal Circuit Court of

Appeals. A petition for writ of certiorari was denied by this Court on

October 10, 2006 in Weliver v. Merit Systems Protection Board, 127

S. Ct. 420 (2006).

which Linda Faulkner-Martin (id. at 233), Donna Jones

(id. at 269) and Rebecca Gartelman (id. at 306) testified.

Petitioner, thereafter, filed a motion for a de novo

hearing (E. 131-231) based on denial of due process of law:

the hearing examiner permitted testimony of gross post

hoc rationalizations from employer SSA witnesses Faulk-

ner-Martin and Jones — assertions that were not contained

in Jones’s April 2, 2004 letter as bases for Petitioner’s

removal; would not control gratuitous post hoc rationaliza-

tions on cross-examination and limit answers to the

questions presented, and allowed non-responsive answers

during cross-examination of Faulkner-Martin and Jones.

(Id. at 135-141) The hearing examiner, further, would not

require introduction of documentary evidence concurrently

with witness testimony to what the documents contained,

and permitted all such documents to be introduced as

evidence at the conclusion of the witness’s testimony (id.

at 142); and on cross-examination would not admit a

document into evidence that was incorporated by reference

in the April 2, 2004 letter proposal to remove and related

to the direct testimony, and documents to show a defect in

the opponent’s case in chief. (Jd. at 143-145) Additionally,

the hearing examiner intimidated Petitioner (id. at 145-

146); made derogatory comments regarding representation

by Petitioner’s counsel (id. at 147-150); and had ex parte

communications with SSA counsel. (Jd. at 150-151)

When jurisdiction was transferred to the Board of

Appeals by the hearing examiner, the Board did not refer

the case to the Maryland Office of Administrative Hear-

ings for a de novo hearing as recommended by the hearing

examiner. (E. 108) Nor did the Board conduct its own de

novo hearing to observe the demeanor of Faulkner-Martin,

Jones and Gartelman - in addition to having their testi-

mony and documentary evidence properly presented.

Contrary to Petitioner’s objections (E. 98), the Board

incorporated evidence and testimony submitted before the

hearing officer as its record (E. 20, 24) and on June 2, 2005

continued the hearing of the hearing examiner (E. 96, 26)

at which Petitioner and other witnesses testified. (E. 24-

95)

The Board refused to enter into evidence (E. 54-55) an

investigative report disclosing that Gartelman had given

perjured testimony before the hearing examiner, and has

an extensive criminal record. (E. 193) Also the Board

refused to enter into evidence a handwriting analysis of

Gartelman’s handwriting (E. 86-87) revealing further

perjured testimony when Gartelman denied before the

hearing examiner of having written the March 24, 2004

note to Weliver that was in her handwriting. (E. 311-312)

The Board of Appeals issued a decision — the only and

final DLLR decision — on September 2, 2005. (App. 35) The

Board did not evaluate or refer to any particular evidence

in the record, did not resolve conflicting evidence of record

— neither testimony nor documents — and provided no

evidentiary basis for its findings of fact. (Jd. at 39) The

Board’s decision, having incorporated the hearing exam-

iner’s hearing and its continued hearing as one proceed-

ing, is the following:

The Board of Appeals has considered all the evi-

dence presented, including the testimony offered

at the hearing. The Board has also considered all

the documentary evidence introduced in this

case, as well as the Department of Labor Licens-

ing and Regulation’s documents in the appeal

file.

The Board of Appeals finds the testimony of the

employer’s witnesses and the claimant’s witness,

Rebecca Gartelman, to be more credible than

claimant’s testimony. The overwhelming weight

of the credible evidence supports a finding that

the claimant was discharged for gross miscon-

duct within the meaning of Section 8-1002. [Em-

phasis added.]

The Board held:

a) The claimant violated a management direc-

tive, issued to her orally and on December 10,

2003 to refrain from calling co-workers at their

homes and harassing them. She called three co-

workers at home during evening hours of March

4, 2004 to harass them.

b) Claimant refused to meet with her supervi-

sor Donna Jones on March 4, [2004] to discuss al-

legations from her co-workers, and that claimant

blew a kiss to Donna Jones and patted her be-

hind when leaving the office that day.

c) On March 5, 2005, the claimant interrupted

the speaker at a graduation ceremony for herself

and some co-workers and walked out before the

ceremony was concluded, and

d) later that day stated to Ms. Jones “I am go-

ing to kill you.”

e) On or about March 16, 2004, the claimant

began to harass Ms. Gartelman: telling Ms. Gar-

telman that she was being watched and was go-

ing to lose her job; pressured Ms. Gartelman to

assist her in making complaints against her em-

ployer; claimant wanted Ms. Gartelman to sign

statements attesting to the fact that claimant

was being harassed by the employer and her co-

workers; on one occasion claimant pushed Ms.

Gartelman into a filing room; claimant made

threats against Ms. Gartelman and her child;

and beginning March 16, 2004 made nightly calls

to Ms. Gartelman’s home, calling hour after hour

until as late as 11:00 p.m.

f) On March 29, 2004, while Ms. Gartelman

was working in one of the building bathrooms,

claimant came up behind Ms. Gartelman, tried to

push her head into the commode and did so far

enough to cause the ends of Ms. Gartelman’s hair

to become wet; and while doing this the claimant

was again telling Ms. Gartelman that if she did

not help her, by confirming that the claimant was

being mistreated on the job, Ms. Gartelman

would be hurt in some way.

g) Following an earlier proposal to remove

claimant from her position, upon learning of

claimant’s actions towards Ms. Gartelman that

proposal was withdrawn and a new proposal was

issued on April 2, 2004, resulting in the immedi-

ate discharge by her employer.

The Board again concluded that Petitioner “was

discharged for gross misconduct connected with the work,

within the meaning of Maryland Code Annotated, Labor

and Employment Article, Title 8, Section 1002.” Ud. at 43)

C. Proceedings in the Circuit Court for Anne Arun-

del County, Maryland

The Circuit Court affirmed the decision of the Board

of Appeals.

The foregoing due process issues, embraced by the

Board’s refusal to provide a de novo hearing, were initially

raised by Petitioner upon appeal for judicial review of the

Board’s decision in the Circuit Court. Notwithstanding,

the Circuit Court passed over the due process issues while

connoting that all testimony and evidence had been

presented at the Buard’s hearing - disregarding the

hearing proceeding conducted by the hearing examiner,

and giving no recognition to Petitioner’s request for a de

novo hearing.

_In disregard of Maryland judicial review provisions

(see page (i), supra), the Circuit Court also provided no

‘meaningful review and/or analysis of the Board’s decision

to ascertain the evidentiary basis as substantial evidence

that the Board relied on to support its findings of fact (the

court referring to evidence generally — post hoc rationali-

zations) And so without referring to particular evidence,

and recognizing contrary evidence, the Circuit Court

stated: “The record indicated that there were several

instances of Ms. Weliver violating an employer’s directive

to refrain from calling co-workers after hours. It contained

evidence that Ms. Weliver threatened co-workers, made

obscene gestures, and even physically attacked a co-

worker [sic] by forcing her head into a toilet.” The decision

of the Circuit Court is the following (App. 30):

At the Board of Appeals hearing, both Ms. Weliver

and the employer had equal opportunity to pre-

sent evidence concerning the circumstances of Ms.

Weliver’s dismissal. At the conclusion of the hear-

ing, the Board held that the employer’s testimony

and evidence concerning the dismissal was more

credible than the evidence provided by Ms. Weliver.

The Court must decide whether there was

enough substantial evidence presented at the

hearing to support the Board of Appeals decision

that “/t/he overwhelming weight of the credible

evidence supports a finding that the claimant

was discharged for gross misconduct within the

meaning of Section 8-1002.” The Court finds that

there is substantial evidence in the record to sup-

port the Board’s finding that Ms. Weliver was

discharged for “gross misconduct.” The record in-

dicated that there were several instances of Ms.

Weliver violating an employer’s directive to re-

frain from calling co-workers after hours. It con-

tained evidence that Ms. Weliver threatened co-

workers, made obscene gestures, and even physi-

\ cally attacked a co-worker [sic] by forcing her

head into a toilet.

The preceding examples of Ms. Weliver’s conduct

clearly amount to substantial evidence that a

reasonable person could rely upon to find her

guilty of gross misconduct. Since this Court can-

not substitute its own judgment in light of the

facts, it must uphold the Board of Appeals find-

ings. Therefore, this Court finds that the Board

of Appeals did not err in its decision. [Emphasis

added.]

D. Proceedings in the Court of Special Appeals of

Maryland

The due process issues were similarly raised before

the CSA. The CSA affirmed the lower court and the

decision of the Board of Appeals. In Maryland, rather than

reviewing errors of the Circuit Court’s review of the

agency administrative decision, judicial review at any

court level is review of the administrative decision directly.

Spencer v. Md. State Board of Pharmacy, supra, 846 A.2d

at 346; Ahalt v. Montgomery County, 113 Md. App. 14, 20,

686 A.2d 683, 686 (1996).

The CSA’s opinion contains many misstatements of

fact. The opinion is largely devoted to discussion and

evaluation of the evidence, and resolution of conflicts in

the evidence, as a substitute for that which is wholly

absent to support the Board of Appeals findings of fact. In

this manner, the CSA ruled as to each that the Board’s

findings of fact were supported by substantial evidence.

The opinion thus contains a series of post hoc rationaliza-

tions that the CSA otherwise recognizes as being pro-

scribed. (App. 26, n. 14)

The CSA’s reasoning, too, is designedly inconsistent.

See, e.g., note 9 (App. 15) where the court discusses that

the Board could not properly make a demeanor-based

credibility assessment of Faulkner-Martin, Jones and

Gartelman based on a transcript of their testimony pre-

sented before the hearing examiner, and in juxtaposition

states that while the Board was able to observe the de-

meanor of Weliver during her testimony: “[t]he testimony

of Gartelman, while not made in the presence of the

Board, was corroborated and documented by two other

witnesses, Faulkner and Jones,” and is thus substantial

evidence that the “Board could reasonably infer that

Gartelman was telling the truth.” (App. 23)

The CSA also discounted documents that Petitioner

sought to put into evidence before the Board: the investi-

gative report of Gartelman’s testimony before the hearing

examiner documenting perjury, and her extensive criminal

record; and analysis of Gartelman’s handwriting further

documenting perjury before the hearing examiner (while

incorrectly stating as a reason that “samples of Gartel-

man’s handwriting had not been identified and introduced

into evidence during the prior hearing.”) (App. 22, n. 11

and 12)

The court noted that Petitioner moved for a de novo

hearing and raised due process issues embraced by the

Board of Appeals’ decision but it nonetheless affirmed that

decision. (The court refers, too, to the first de novo hearing

which is irrelevant.) (App. 24)

Weliver contends that she was denied due proc-

ess of law at the January 11, 2005 hearing before

Examiner Steinwedel.[*] She offers numerous

reasons in support, none of which are persua-

sive.”

(*} As discussed supra, Weliver moved for a de

novo hearing following the January 11, 2005

hearing. Examiner Steinwedel removed the case

to the Board of Appeals and the Board denied

Weliver’s request for a de novo hearing, holding a

continued hearing instead. Weliver had already

been granted a de novo hearing after her first

hearing before Examiner Sapp was continued

due to her counsel becoming ill.

The CSA misreads Shipbuilding & Drydock Co., Inc.

v. Md. Comm. On Human Relations, 70 Md. App. 538, 552,

§21 A.2d 1263, 1270 (1987) regarding non-admissibility of

a pro hoc rationale during an administrative proceeding

when it states that “this Court was merely noting that the

hearing examiner made an appropriate credibility deter-

mination when assessing the employer’s reasons for

terminating the employee.” (Emphasis added.)). (App. 26,

n. 14) To the contrary, the court in that case refused to

accept as evidence, a post hoc rationale, a reason for

[claimant’s} denial of promotion by the company: a knee

injury (injured in 1976), since it was not raised in the

employer’s position paper of 25 February 1980 as asserted,

nor was it discussed at the 26 February 1980 fact finding

conference of the Commission’s investigator. Shipbuilding

& Drydock Co., Inc., supra, 521 A.2d at 1270, n. 3) “Credi-

bility determination,” moreover, applies to witness testi-

mony, discussed in the opinion as relating to other

evidence in the case.

The CSA wrongfully observes that “Weliver’s improper

conduct during the training class was specifically ad-

dressed by Jon»s in the ‘Proposal to Remove.’” (App. 26)

The quoted commentary is contained in the April 2, 2004

proposal to remove, in part (a): “Failure to follow a man-

agement directive,” pertaining to telephoning co-workers

at home, not in part (b) “Conduct unbecoming a Federal

employee.” (E. 176) Inasmuch as that statement was not

referred to by SSA as purported conduct unbecoming a

Federal employee, claiming employee misconduct, it is a

post hoc rationale to refer to alleged conduct during a

training class as a part (b) conduct charge.

Rather than the hearing examiner controlling wit-

nesses, the CSA observes that “all the witnesses [were

given] considerable leeway.” (App. 27 n. 15) But such leeway

was in permitting gross post hoc rationalizations that

were accepted by the hearing examiner, e.g., by Faulkner-

Martin, as he opined: “I think that’s the answer to the

question.” (E. 260)

With regard to the hearing examiner permitting

testimony on direct examination respecting a document

without requiring that the document be concurrently

introduced into evidence, the CSA posits on the one hand

that hearing examiners are not bound by court rules of

evidence or procedures (App. 27-28), but on the other hand

notes that “{W]hile administrative agencies are not con-

strained by technical rules of evidence, they myst observe

basic rules of fairness as to the parties appearing before

them so as to comport with the requirements of due

process afforded by the Fourteenth Amendment.” (Jd. at

25)

The CSA decision affirming the Circuit Court and the

Board of Appeals decisions was issued on November 3,

2006. (App. 1) Petitioner timely filed a motion for recon-

sideration on November 30, 2006, and the motion for

reconsideration was denied on December 21, 2006. (App.

29)

E. Proceedings in the Court of Appeals of Maryland

Petitioner timely filed a petition to the Court of

Appeals for writ of certiorari on January 3, 2007. The

court denied the petition on March 16, 2007. (App. 44)

Petitioner timely filed a motion for reconsideration of that

order on April 13, 2007, and the motion for reconsideration

was denied June 8, 2007. (App. 45)

REASONS FOR GRANTING THE PETITION

At every turn, when disregarding established rules

and principles of jurisprudence of this Court and State of

Maryland, Petitioner had been denied due process of law

in the administration of her claim for unemployment

insurance benefits. Such denial maintains SSA’s libel of

Petitioner assaulting Rebecca Gartelman, an office clean-

ing maintenance worker, including pushing her head into

a toilet bowl. And, inter alia, on this basis, Petitioner was

removed from her employment with SSA.

When not providing Petitioner a de novo hearing and

continuing the hearing of the hearing examiner, the DLLR

Board of Appeals incorporated that hearing transcript as

its own and all the due process deficiencies therein: “All

testimony and documents entered into evidence at the

hearing held on January 11, 2005 before Chief Hearing

Examiner Louis Wm. Steinwedel are in evidence before

the Board of Appeals and no additional testimony is

needed from the witness having already testified.” (E. 96)

Additionally, the Board of Appeals superimposed its own

due process deficiencies by improper consideration of the

evidence in this case, and the manner in which it rendered

its decision.

Upon judicial review, the Circuit Court for Anne

Arundel County, Maryland, failed to give recognition to

the proceedings of the hearing examiner and the due

process issues raised, and disregarded the State APA

provisions when affirming the decision of the Board of

Appeals. The Court of Special Appeals of Maryland,

although explicitly recognizing due process deficiencies in

the decision of the DLLR Board of Appeals, yet affirmed

the decisions of the Circuit Court and Board of Appeals.

Thereafter, the Court of Appeals, highest court in the

State of Maryland, would not accept the case for review

and denied Petitioner’s petition therein for writ of certio-

rari.

Petitioner’s only, and final, recourse to obtain due

process of law and to achieve justice in this case — and to

remedy SSA’s wrongful removal of Petitioner from her

employment based on a libel perpetrated by SSA - is by

review of this Court.

I. The Hearing Examiner Denied Petitioner Due

Process of Law Which Was the Basis for Peti-

tioner’s Motion for a De Novo Hearing

a. SSA counsel was permitted free reign to question

employer SSA witnesses Faulkner-Martin and Jones, so to

present pro hoc rationalizations for Petitioner’s removal from

her employment that were not contained in the letter re-

moval documents of April 2, 2004 and June 1, 2004. (E. 239)

BY MR. MELENDEZ: Continuing on, and let’s

discuss Ms. Weliver’s behavior while attending

training class.... Did there come a time when

students in that training class came to you to tell

you that Ms. Weliver was —

MR. EIGLES: Your Honor, if I may object, there

isn’t anything in the decisions as a basis for re-

moval —

* * *

MR. STEINWEDEL: Well, I’m going to admit

that because it’s the way we operate here. And I’m

going to overrule that objection. If you continue

to make it, I’m going to continue overruling it, so

let’s get that settled up front.

MR. EIGLES: All right, Sir, I’m just following

what they presented as a basis for removal.

MR. STEINWEDEL: It’s going to be admitted.

The case may or may not turn on any of these

elements, but I have to hear what the employer

wants to testify to, and J will hear it. Okay, let’s

proceed. {Emphasis added.]

The hearing examiner continued to permit extempo-

raneous post hoc rationalizations of SSA’s witnesses on

cross-examination. [E. 258-259]

Q. Did Monique ever talk to you about the

phone calls Ms. Weliver made to her?

A. Yes. Monique told me that she had talked

with Ms. Weliver, but Monique told me, “I will

handle it myself.”

Q. Did Monique ever tell you that she asked

Ms. Weliver to call her?

A. No. When Monique approached to talk with

me, she came to tell me that Fatima was saying

things to her that she didn’t like. And she han-

dled it herself. That was the extent of Monique’s

talking to me. She never signed a statement —

Q. That’s fine. So what’s referred to here, that

Ms. Weliver called her, and you say she -

Monique had never discussed with you that she

asked Ms. Weliver to call her, is that your state-

ment?

A. Monique never said anything to me about

who initiated anything ... in terms a call being

placed.

Q. That’s fine.

A. She just came to say that Fatima was har-

assing her and she would handle it herself.

Q. That’s fine, but my question was did she ask

— had she told you that she had asked Ms.

Weliver to call you and you said she had not dis-

cussed that with you.

The question was whether Monique had told

Faulkner-Martin that Monique asked Petitioner

to call her. The answer was given: no. No further

question was asked.

A. Let me make something clear that maybe

didn’t come out before. Ms. Weliver made friends

initially with everyone in the —

Q. Answer my question please.

MS. JASNER: Objection, Your Honor.

Q. Objection, objection.

MR. MELENDEZ: I believe she’s trying to an-

swer it.

MR. EIGLES: But she -

THE WITNESS: Im trying to answer the ques-

tion.

MR. STEINWEDEL: We finally got to a ques-

tion and now we're getting an answer. You

opened the door to this.

MR. EIGLES: Well I asked if Monique —

THE WITNESS: I want to tell you how Ms.

Weliver came to have these phone numbers.

MR. STEINWEDEL: This is responsive to your

question, you went there.

MR. EIGLES: All right.

THE WITNESS: Fatima approached the entire

staff, the entire training class and said she likes

to get together and go out after hours —

MR. EIGLES: Oh, come on.

THE WITNESS: And she wanted phone num-

bers.

MR. LIGLES: Objection, Your Honor.

THE WITNESS: Can] finish my statement?

MR. EIGLES: This goes well beyond my ques-

tion, Your Honor.

MR. STEINWEDEL: No, it doesn’t. You asked

for an answer and she’s giving you an answer.

MR. EIGLES: I asked about —

MR. STEINWEDEL: You know, there is an old

saying, counsel, be careful what you ask for, you

might get it.

MR. EIGLES: I asked about Monique and now

she —

THE WITNESS: But I think this answer will

address Monique’s issue and everyone else’s —

MR. STEINWEDEL: I’m going to permit the

answer. |Emphasis added.]

Maryland law proscribes post hoc rationalizations during

review of agency decisions. Bd. of Educ. of Montgomery County

v. Paynter, 303 Md. 22, 41, 491 A.2d 1186, 1196 (1985); Ship-

building & Drydock Co., Inc. v. Md. Comm. on Human

Relations, supra.

Post hoc rationalizations likewise are clearly pro-

scribed as the Court set out in NLRB v. Metropolitan Life

Insurance Co., 380 U.S. 438, 444 (1965):

Although Board counsel in his brief and argu-

ment before this Court has rationalized the dif-

ferent unit determinations in the variant factual

situations of these cases on criteria other than a

controlling effect being given to the extent of or-

ganization, the integrity of the administrative

process requires that “courts may not accept ap-

pellate counsel’s post hoc rationalizations for

agency action... .” {citations omitted] For review-

ing courts to substitute counsel’s rationale or

their discretion for that of the Board is incom-

patible with the orderly function of the process of

judicial review. Such action would not vindicate,

but would deprecate the administrative process

for it would “propel the court into the domain

which Congress has set aside exclusively for the

administrative agency.” [Emphasis added.]

The law, however, was not applied in this case.

b. The hearing examiner also would not require SSA

counsel to submit documents as evidence concurrently

with direct testimony offered about what they contain, and

permitted all documents to be introduced after conclusion

of the testimony. This served to curtail proper cross-

examination as to the accuracy of the testimony of what

the documents contain. (E. 244, 241)

STEINWEDEL: -—- at this moment, the hearing

doesn’t recognize that there is a document until

it is submitted into evidence. There is no docu-

ment in evidence at this point. What is being of-

fered is direct testimony, and certainly I have no

grounds to refuse that.

MR. EIGLES: Direct testimony about what the

document states —

MR. STEINWEDEL: What did I just say about

there being no document in evidence at this time?

There may be admission of a document in evi-

dence at a later time, or there may not, I have no

way of knowing that. [Emphasis added.]

The hearing examiner thus disregarded “[t]he danger of [a

witness] mistransmitting critical facts which accompanies

the use of written copies or recollection, but which is largely

avoided when an original writing is presented to prove its

terms, justifies preferences for original documents.”

McCormick on Evidence (2d Ed., 1972), quoted in State of

Maryland v. Brown, 129 Md. App. 517, 522, 743 A.2d 262,

264-265 (1999). Compare, too, the common-law “rule of

completeness,” which underlies Federal Rules of Evidence

106. Beech Aircraft Corporation v. Rainey, 488 U.S. 153, 172

(1988). “We take this to be a reaffirmation of the obvious:

that when one party has made use of a portion of a docu-

ment, such that misunderstanding or distortion can be

averted only through presentation of another portion, the

material required for completeness is ipso facto relevant.”

c. On cross-examination of SSA witnesses, Faulkner-

Martin and Jones, the hearing examiner, too, would not

permit introduction of a document into evidence that was

incorporated by reference in the April 2, 2004 letter

proposal to remove (E. 255-256), nor permit introduction of

other documents to supply a defect in the proof presented

during SSA’s case in chief. (E. 293)

MR. EIGLES: Can we enter this into evidence?

EXAMINER STEINWEDEL: Refer to it first.

MR. EIGLES: Refer to it? All right. I had re-

frained from introducing documents into evi-

dence because you indicated that this was cross-

examination.

EXAMINER STEINWEDEL: I! didn’t say intro-

duce it into evidence. I said refer to it.

MR. EIGLES: Refer to it? All right.

EXAMINER STEINWEDEL: There’s a differ-

ence.

MR. EIGLES: All right, all right, all right.

Restricting the record on cross-examination is con-

trary to Weil v. Terrell Air Conditioning, 48 Md. App. 439,

442, 759 A.2d 1071, 1072-1073 (1981). To similar effect, in

Beech Aircraft Corporation v. Rainey, supra, at 168, the

Court held: “And of course it goes without saying that the

admission of a report containing ‘conclusions’ is subject to

the ultimate safeguard — the opponent’s right to present

evidence tending to contradict or diminish the weight of

those conclusions.” (Emphasis added.)

II. A. The DLLR Board of Appeals Did Not Prop-

erly Consider the Evidence, And Credibility

of Witnesses Based On Transcript Testi-

mony Upon Continuing the Hearing of the

Hearing Examiner

In failing to provide Petitioner a de novo hearing to

remove the due process deficiencies of the hearing exam-

iner’s proceeding by having witness testimony be pre-

sented anew, and to permit documentary evidence to be

admitted with due regard to due process considerations,

the Board of Appeals, too, denied Petitioner due process of

law.

First, the Board of Appeals states in its decision that

it “considered all the evidence presented,” notwithstanding

that the Board refused to admit into evidence the investi-

gative report of Gartelman’s testimony before the hearing

examiner that reveals that she gave perjured testimony —

and that she has an extensive criminal record.’ The Board

* The Board denied admission of the report of the private investi-

gator because the investigation “occurred almost a year after the

(Continued on following page)

also refused to admit into evidence the report of a hand-

writing analyst that further establishes that Gartelman

gave perjured testimony with regard to her March 24,

2004 note (E. 215) that she denied under oath of having

written. On its face, the Board incorrectly held that

Gartelman’s testimony is more credible than Petitioner’s

testimony with regard to Gartelman’s contentions of

Petitioner having physically assaulted her. Reports of

unbiased experts are relevant, admissible, and substantial

evidence in an administrative hearing. Cf. Richardson v.

Perales, 402 U.S. 389 (1971)

Secondly, the Board of Appeals made a determination

of credibility of SSA witnesses Faulkner-Martin and Jones,

and Gartelman, based on the transcript testimony before

the hearing examiner and thus had no opportunity to

observe these witnesses to make a demeanor based as-

sessment. The CSA affirmed the Board’s decision irrespec-

tive of its extensive discussion of Maryland law that “[a]

‘testimonial inference’ can only be drawn by a trier of fact

who actually observes the witness ... [w]hereas inferences

drawn from the evidence itself -- such as the number of

witnesses testifying to the same version of events, the

likelihood that one version of events is true based on logic

alleged assault and was based on a few observations of the area” (E.

55), although the investigator had also questioned employees in offices

near the restroom off the building lobby who worked there when the

alleged incident occurred. (E. 54, 193)

* The Board refused admission on grounds that the note had not

been introduced into evidence before the hearing examiner. (E. 86-87)

The note, however, was extensively described and identified at the

hearing, and the hearing examiner would not recognize it as evidence

because of a slight rumpling in a copy machine. (E. 312) The Board,

further, indicated that Gartelman was not present for cross-

examination (E. 86), notwithstanding that it denied Petitioner’s motion

for a de novo hearing. The Board also disregarded counsel’s request to

have Gartelman called back for further testimony. (E. 87)

or common sense, or documentary evidence — can be made

absent observation of the witnesses.” (App. at Op. 14, n. 9)

The CSA further noted that “the Board did not observe

three of the witnesses in this case, and, therefore, could

not make demeanor-based credibility assessments.” Ibid.’

Anderson v. Dep’t of Pub. Safety & Corr. Serv’s, 330 Md.

187, 623 A.2d 198 (1993); Dept. of Health & Mental Hy-

giene v. Shrieves, 100 Md. App. 283, 299-300, 641 A.2d 899,

907 (1994).

In like manner, the Court held in Anderson v. Besse-

mer City, 470 U.S. 564, 575 (1985):

When findings are based on determinations re-

garding the credibility of witnesses, Rule 52(a)

demands even greater deference to the trial

court’s findings; for only the trial judge can be

aware of the variations in demeanor and tone of

voice that bear so heavily on the listener’s under-

standing of and belief in what is said. [Emphasis

added. ]

B. The DLLR Board of Appeals Issued a Decision

of Findings of Fact Without Setting Forth an

Evaluation of the Evidence Presented, With-

out Resolving Conflicts In the Evidence, And

Without Presenting an Evidentiary Basis to

Support Its Findings of Fact

The failure of the Board of Appeals, to evaluate the

evidence, to resolve conflicts in the evidence, and present

" The CSA’s statement that “Weliver does not raise this argument

on appeal” is erroneous. The CSA contrarily notes that “Weliver makes

a passing reference in her brief to the inability of the Board to observe

the demeanor of the three initial witnesses.” Petitioner’s motion for a de

novo hearing directly sought to have their testimony presented anew

before the Board.

an evidentiary basis to support its findings of fact alone

renders its decision a denial of due process.

The Board asserts that it considered all the evidence

“including testimony” offered at the hearing and “all the

documentary evidence introduced in this case.” Apart from

its conclusion that the “overwhelming weight of the

credible evidence” supports a finding that the claimant

was discharged for gross misconduct, nowhere does the

Board relate what the “overwhelming evidence” is that

supports its findings of fact. As it does not discuss the

evidence, it has not evaluated the evidence, and has thus

presented no evidentiary basis for its findings of fact —

apart from lack of efficacy of the evidence introduced.

The Board’s findings of fact plainly appear to be

simply an iteration of the false charges of Faulkner-Martin

and Jones in the April 2, 2004 letter proposal to remove

Petitioner from her employment.

Under Maryland law, “the examiner [is] to focus on

the evidence presented and its sufficiency to support a

particular conclusion.” Forman v. MVA, 332 Md. 201, 220-

221, 630 A.2d 753, 764 (1993). Resolving conflicting

evidence and properly determining credibility of witnesses

are duties of the Board as trier of fact. Baltimore Lutheran

High School Ass’n, Inc. v. Employment Sec. Admin., 302

Md. 649, 663, 490 A.2d 701, 708 (1985). Evidence stated to

support a particular conclusion is “substantial” if a reason-

ing mind might accept it to support the conclusion reached

by the agency. Spencer v. Md. State Board of Pharmacy,

supra, 846 A.2d at 349; Bd. of Educ. of Prince George’s

County v. Waeldner, 298 Md. 354, 363, 470 A.2d 332, 336

(1984). These fundamental principles of due process were

disregarded by the Board.

The Court similarly observed in NLRB v. Metropolitan

Life Ins. Co., supra, at 442-443, that

[D]ue to the Board’s lack of articulated reasons

for the decisions in and distinctions among these

cases, the Board’s action here cannot be properly

reviewed. When the Board so exercises the dis-

cretion given to it by Congress, it must “disclose

the basis of its order” and “give clear indication

that it has exercised the discretion with which

Congress has empowered it.” [Emphasis added.]

Accord: Goldberg v. Kelly, supra.

Ill. The Maryland Judiciary Denied Petitioner

Due Process of Law

Notwithstanding the clear multitudinous due process

deficiencies of the decision of the DLLR Board of Appeals,

the Circuit Court for Anne Arundel County, Maryland, and

the Court of Special Appeals of Maryland affirmed that

decision. And the highest court of the State, Court of

Appeals of Maryland, denied review. Although the estab-

lished legal principles of due process applicable to this

case are clear in Maryland law and as enunciated by this

Court, the Maryland judiciary refrained from applying

them in this case. By so failing to properly apply the law,

the Maryland judiciary itself effected a denial of due

process of law.

Recognized clements of procedural due process re-

quired of the States under the Fourteenth Amendment are

fundamental to the administration of justice. “(I]t is

normally ‘within the power of the State to regulate proce-

dures under which its laws are carried out,’... and its

decision in this regard is not subject to proscription under

the Due Process Clause unless ‘it offends some principle of

justice so rooted in the traditions and conscience of our

people as to be ranked as fundamental.’” (Emphasis

added.) Montana v. Egelhoff, 518 U.S. 37, 43 (1996).

Going back to 1876, Chief Justice Waite articulated

the term “due process of law” to mean “a course of legal

proceedings according to those rules and principles which

have been established by our jurisprudence for the protec-

tion and enforcement of private rights.” Kennard v. Lou-

isiana, 92 U.S. 480, 481 (1876). Unlike Kennard where

statutory procedures, followed by the State judiciary, were

reviewed as to whether they complied with due process, in

the instant case established prescribed rules to afford due

process were not followed by the State judiciary.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

HENRY EIGLES

Attorney at Law

10729 Evening Wind Court

Columbia, Maryland 21044

(410) 730-1195

August 31, 2007

App. 1

APPENDIX A

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 20

September Term, 2006

FATIMA G. WELIVER

BOARD OF APPEALS

DEPARTMENT OF LABOR, LICENSING

AND REGULATION, ET AL.

Eyler, Deborah S.,

Barbera,

Rodowsky Lawrence F.,

(Ret’d, Specially Assigned),

JJ.

Opinion by Eyler, Deborah S., J.

Filed: November 3, 2006

Fatima G. Weliver, the appellant, applied for unem-

ployment benefits after being terminated from her job

with the Social Security Administration (“the Agency”). A

claims specialist for the Department of Labor, Licensing,

and Regulation (“DLLR”), the appellee, denied her claim,

finding that she had been terminated for gross misconduct

and, hence, pursuant to Md. Code (1999 Repl. Vol.) section

App. 2

8-1002 of the Labor and Employment Article (“LE”), was

not entitled to benefits. Weliver appealed to the DLLR

Board of Appeals (“the Board”), which affirmed the deci-

sion of the claims specialist. She then brought an action

for judicial] review in the Circuit Court for Anne Arundel

County. The court upheld the Board’s decision.

On appeal to this Court, Weliver raises eight ques-

tions for review,’ which we have rephrased, reordered, and

combined:

' The questions, as posed by Weliver, are:

1. Did the Board deny Appellant due process of law

when not granting Appellant a de novo hearing and contin-

ued a prior hearing proceeding of a hearing examiner that

contained due process deficiencies, and thereafter rendered

a decision based on such combined hearing record?

2. Did the Board err in deciding that Appellant vio-

lated a management directive of December 10, 2003 direct-

ing that she not call co-workers at home after work hours?

3. Did the Board err in deciding that Appellant re-

fused to meet with her supervisor Donna Jones on March 4,

2004 and that Appellant blew a kiss to Ms. Jones and patted

her behind when leaving the office that day?

4. Did the Board err in deciding that Appellant offen-

sively interrupted a speaker at a training exercise gradua-

tion on March 5, 2004?

5. Did the Board err in deciding that Appellant

threatened her supervisor, Donna Jones, on March 5, 2004

with the statement “I am going to kill you?”

6. Did the Board err in deciding that Appellant com-

mitted assaults on Rebecca Gartelman on March 16, 2004?

7. Did the Board err in deciding that on March, 29,

2004 Appellant committed assaults on Ms. Gartelman in-

cluding pushing her head into a toilet bowl?

8. Did the Board err in deciding that SSA’s proposal to

remove of Apri] 2, 2004 was substituted for SSA’s March 24,

(Continued on following page)

App. 3

I. Was there substantial evidence to support

the Board’s findings of fact in support of its

decision?

II. Was the appellant afforded due process of

law in her hearing before a hearing e.am-

iner?

For the following reasons, we shall affirm the judg-

ment of the circuit court.

FACTS AND PROCEEDINGS

Weliver began working for the Agency as a claims

representative in September of 1999. From 2001 until her

eventual termination, she worked at the Glen Burnie

office under the supervision of Donna Jones, the Assistant

District Manager.

On April 2, 2004, Jones issued a “Proposal to Remove”

Weliver from her job,’ The proposal stated in part:

I am proposing your removal from your position

as Claims Representative, and from the Federal

service, no earlier than thirty (30) calendar days

from the date you receive this notice, because of

2004 proposal to remove based on “learning of claimant’s ac-

tion toward Ms. Gartelman?”

* Jones had issued a prior “Proposal to Remove” on March 24,

2004. The April 2 proposal superseded the March 24 proposal because

the April 2 proposal contained additional facts unknown at the time of

the March 24 proposal. Aside from the additional facts, the two

proposals were identical. One of the Board's findings of fact disputed by

Weliver concerns the reason Jones issued the April 2 proposal. We shall

discuss her argument infra.

App. 4

your (a) failure to follow a management directive,

and (b) conduct unbecoming a Federal employee.’

Weliver was placed on administrative leave without pay.

In a letter dated June 1, 2004, Linda Faulkner-

Martin, the District Manager of the Glen Burnie office,

concluded that Jones’s “Proposal to Remove” Weliver was

adequately supported and that, in light of Weliver’s

extensive disciplinary record with the Agency, termination

was the appropriate course of action. Weliver’s termina-

tion became effective June 4, 2004.

On June 6, 2004, Weliver filed a claim for unemploy-

ment insurance benefits with the DLLR. She alleged that

she had been fired for “simple or no misconduct.” Her

claim was challenged by the Agency. On July 27, 2004, the

parties participated in a telephone hearing before a DLLR

claims specialist. The claims specialist made the initial

benefits determination that Weliver was fired for gross

misconduct and, therefore, pursuant to LE section 8-1002,

was not entitled to benefits.

On August 9, 2004, Weliver appealed the initial

benefits determination to the Appeals Division of the

DLLR. A hearing was scheduled for August 30, 2004, on

the issue of:

Whether the claimant’s separation from this em-

ployment was for a disqualifying reason within

the meaning of [LE sections 8-1002-1002.1]

(Gross/Aggravated Misconduct connected with

* The specific allegations raised in one Proposal to Remove will be

discussed infra.

App. 5

the work), 1003 (Misconduct connected with the

work) or 1001 (Voluntary Quit for good cause),

After numerous postponements, a hearing was held on

October 1, 2004, before DLLR Hearing Examiner Sapp.’

The hearing could not be completed that day, however,

because Weliver’s attorney became ill. The hearing was

continued and counsel were asked to submit dates for a

future hearing.

In the meantime, Weliver’s lawyer wrote to the

Director of the Appeals Division of DLLR and requested a

de novo hearing before a different hearing examiner. His

letter stated:

I have much reservations concerning the conduct

of the hearing in that the hearing officer was

seeking to have me rush through it and did not

permit me to engage in a deliberative process to

develop my questions on cross-examination of the

first Agency witness.... It appeared to me to be

in the nature of an “ambush” and a race out the

door, ... I would appreciate your review of the

tape, and as appropriate assign another hearing

officer to the case.

Weliver’s counsel also complained that much of the testi-

mony by Agency witnesses was hearsay. He asked for leave

to take depositions prior to the next hearing.

The Agency opposed Weliver’s requests, arguing that a

de novo hearing was not necessary, because the prior

hearing had been conducted “according to due process and

federal hearing standards,” and that Weliver’s “attorney’s

* Hearing Examiner Sapp’s first name is not reflected in the

record.

App. 6

failure to subpoena witnesses or otherwise prepare for the

hearing does not provide a basis for a de novo hearing.”

Weliver’s request for a de novo hearing was granted

on October 25, 2004. After further postponements, a de

novo hearing was held on January 11, 2005, before Chief

Hearing Examiner Louis W. Steinwedel.° The Agency

called two witnesses — Faulkner-Martin and Jones. One of

Weliver’s witnesses, Rebecca Gartelman, was called out of

order due to her work obligations. The hearing was then

continued.’

On February 22, 2005, Weliver filed a “Motion for New

De Novo Hearing to Provide Due Process of Law.” She

argued that 1) the hearing space was insufficient; 2) the

hearing examiner had improperly allowed the Agency

to give its opening statement second; 3) the hearing

examiner had improperly admitted testimony by Agency

* At the October 1, 2004 hearing, the Agency called Faulkner-

Martin, and completed direct examination of her. During her cross-

examination, counsel for Weliver asked for a continuance, stating that

he felt ill. It is unclear whether Weliver’s counsel subpoenaed any

witnesses for the hearing, but the Agency specifically requested in its

response that “counsel should be permitted to present only those

witnesses present at the October 1, 2004 hearing.”

* Weliver’s lawyer asked to subpoena 21 witnesses, and said he

planned to call nine additional] witnesses who would appear voluntarily.

The Appeals Division allowed him five subpoenas. He also asked that

the hearing be scheduled for three consecutive days. A one-day hearing

was scheduled instead.

’ The hearing ended at approximately 3:13 p.m. The hearing

examiner had informed the parties at the start of proceedings that he

would need to leave for another appointment at 3:30 p.m. At the close of

Gartelman’s testimony, counsel for Weliver sought to call one additional

witness prior to the end of the hearing. The hearing examiner denied

this request because he did not believe the testimony could be com-

pleted prior to 3:30.

App. 7

witnesses about conduct by Weliver not covered in the

“Proposal to Remove” and other impermissible “post hoc

rationalizations” for her termination; 4) the hearing

examiner had improperly allowed the Agency to question

witnesses about documents not in evidence and to intro-

duce all the documents at the close of its direct examina-

tions, and would not allow counsel for Weliver to introduce

a document during cross-examination; 5) the hearing

examiner intimidated Weliver when she tried to speak to

him; 6) the hearing examiner improperly criticized the

performance of counsel for Weliver during the hearing; 7)

the hearing examiner spoke ex parte with Agency counsel

regarding Gartelman; 8) Gartelman falsely testified at the

hearing; and 9) the hearing examiner concluded the

hearing prematurely and denied Weliver the opportunity

to present a final witness.

The Agency opposed the motion, stating:

[O]pposing counsel seeks a de novo hearing sim-

ply because he is not satisfied with the Hearing

Examiner’s rulings, and, as a result, wants to

start over again, as he has in the past.

The Agency asserted that the hearing was conducted

properly and consistent with due process.

On March 23, 2005, Chief Hearing Examiner Stein-

wedel ruled on the motion as follows:

The allegations raised in [Weliver’s] Motion are

without merit and are rejected. However, due to

the nature of the allegations and the possible

perception of bias, and in consultation with the

Board of Appeals, this case is hereby removed

to the Board of Appeals, pursuant to LE, Section

App. 8

8-509 of the Maryland Unemployment Insurance

Law.

The Board of Appeals assumed jurisdiction over the

case. The Agency filed a “Motion to Limit Testimony and

Evidence in Board of Appeals Hearing,” asking the Board

to limit the live testimony at the hearing to those wit-

nesses who had not yet testified and that it accept the

exhibits introduced into evidence at the hearing before

Chief Hearing Examiner Steinwedel. Weliver filed an

opposition, seeking a de novo hearing. The Board of Ap-

peals ruled the hearing would be a continuation of the one

that had started before Chief Hearing Examiner Stein-

wedel and that “[aJll testimony and documents entered

into evidence” at that hearing would be “in evidence before

the Board of Appeals.” The continued hearing was sched-

uled for June 2, 2005.

At the June 2 hearing, Weliver called four witnesses

and testified on her own behalf. The hearing was con-

cluded that same day.

On September 2, 2005, the Board of Appeals issued its

final decision. It found that Weliver was fired for gross

misconduct and therefore was not entitled to unemploy-

ment insurance benefits.

Weliver filed a timely action for judicial review of the

Board’s decision. The DLLR filed a notice with the court

that it intended to participate in the action. As noted

above, the circuit court affirmed the final Agency decision.

We shall recount additional facts as pertinent to the

issues.

App. 9

DISCUSSION

Weliver contends that the DLLR erred factually, by

making numerous incorrect findings of fact, and legally, by

denying her due process of law.

Our role as an appellate court is to review the final

agency decision, not the decision of the circuit court. Ahalt

uv. Montgomery County, 113 Md. App. 14, 20 (1996). The

standard of review we employ in reviewing a decision of

the DLLR Board of Appeals is set out in LE section 8-

512(d):

In a judicial proceeding under this section, find-

ings of fact of the Board of Appeals are conclusive

and the jurisdiction of the court is confined to

questions of law if:

(1) findings of fact are supported by evidence

that is competent, material, and substantial in

view of the entire record; and

(2) there is no fraud.

Thus, factual findings of the Board are accorded great

deference. Dep’t of Econ. & Employment Dev. v. Taylor, 108

Md. App. 250, 261-62 (1996). Legal determinations are

reviewed de novo, however. Liberty Nursing Center, Inc. v.

Dep't of Health & Mental Hygiene, 330 Md. 433, 443

(1993).

We will begin by deciding whether there is substantial

evidence in the agency record to support the factual

findings that Weliver challenges. We then will address

Weliver’s due process argument.

In reviewing the factual errors asserted by Weliver,

we apply the “substantial evidence test,” t.e., we determine

App. 10

whether the facts found by the Board are supported by

substantial evidence in the agency record. State Dep’t of

Assessments & Taxation v. Reier, 167 Md. App. 559, 590

(2006). Evidence is “substantial” if a reasoning mind might

accept it as adequate to support the conclusion reached by

the agency. Bd. of Educ. of Prince George’s County uv.

Waeldner, 298 Md. 354, 363 (1984).

Weliver contests numerous factual findings.

A. Violation of Management Directive

The “Proposal to Remove” accused Weliver of violating

a December 10, 2003 management directive from Jones

prohibiting Weliver from telephoning at their homes co-

workers who also were classmates in her training class.

The Board made the following findings of fact in regard to

this issue:

This directive was issued by the employer in re-

sponse to complaints they [sic] had received from

co-workers regarding the claimant’s harassment

of them. The claimant violated this directive

when she made phone calls to three co-workers

[sic] homes during the evening hours of March 4,

2004. The claimant called one co-worker, and

proceeded to scream at and accuse the co-worker

of harassing her. The claimant called another co-

worker and after receiving no initial answer re-

peatedly called the co-worker’s home telephone

number approximately every fifteen minutes

from 5:30 to 8:30 p.m. The claimant admitted

calling her co-workers in violation of the man-

agement directive.

App. 11

Weliver initially argues that Jones’s directive was

unlawful because the Agency had no authority to control

employee behavior outside of the work site.

The Agency introduced into evidence the “SSA Man-

agers Labor Relations Handbook” and questioned Faulk-

ner-Martin about the specific contract language relied

upon by the Agency in issuing such a directive:

Employees shall have the right to direct and fully

pursue their private lives, ... without interfer-

ence coercion or discrimination at the worksite,

and without imposition of discipline or adverse

action unless such pursuit impairs the efficiency

of the service.

(Emphasis added.) Weliver’s lawyer did not cross-examine

Faulkner-Martin about the handbook.

Weliver testified, on cross-examination, in response to

questions about the telephone calls she had made to

coworkers: “Who can tell me that I cannot call my co-

workers? There’s no law that can tell me that I cannot call

someone outside of the office.” Weliver was directed to

read the above-quoted paragraph from the handbook, and

was asked what she understood it to mean. She testified

that she thought the handbook paragraph did not prohibit

friendly telephone calls.

The management directive issued by Jones on Decem-

ber 10, 2003 specifically referred to an employee complaint

about a telephone call from Weliver:

Ms. Faulkner-Martin has also been approached

by one of your classmates who complained that

you had called her at home after work hours to

suggest that her job was in jeopardy. This is

clearly not appropriate.

App. 12

The handbook permits the Agency to discipline employees

for off-site behaviors if they “impair|] the efficiency of

service.” Weliver’s call to a classmate at home caused the

employee concern and anxiety about her job security and

necessitated a meeting with Faulkner-Martin. The man-

agement directive was within the authority of the Agency

because its purpose was to correct behavior demonstrated

to impair workplace efficiency.

Weliver also argues that there was insufficient evi-

dence adduced at the hearing to support a finding that she

violated the management directive. She asserts that her

classmates voluntarily provided her with their telephone

numbers; therefore her calls were invited, and only unin-

vited telephone calls were a violation of the directive.

There was much testimony about whether Weliver’s

calls to several classmates were invited. Jones testified

that the classmates decided to give Weliver their telephone

numbers at the beginning of the training class when

Weliver said she would like to socialize with them during

the course of the class. According to Jones, the classmates

later regretted this decision, because Weliver began calling

them at home to discuss her belief that management was

harassing her.

Even if we were to accept Weliver’s assertion that the

directive only prohibited uninvited calls, there is substan-

tial evidence in the agency record to show that Weliver’s

telephone calls to her classmates were uninvited. Weliver

admitted calling one classmate, Bobby Keaton, after the

December 2003 management directive.* She admitted that

* Weliver apparently called Keaton many times at home, but he did

not pick up the phone because he recognized her phone number on his

(Continued on following page)

App. 13

Keaton did not give her his telephone number. In a written

statement Keaton submitted to Jones, which was admitted

into evidence, he described Weliver’s approaching him

numerous times during class and accusing him of harass-

ing her, and recounted that Weliver had “told her husband

about me and that he was to call me and come see me

about her being harassed.” Clearly, Keaton did not invite

Weliver to call him.

Weliver testified about the reason for her call to

Keaton:

But my reason to call was to confront my co-

workers why they threat me, why they were

mean to me, why they were doing what they

were doing to me....

When a member of the Board panel questioned Weliver

about her calls to Keaton, the following ensued:

[PANEL MEMBER]: When you dialed the

number, who were you intending to call?

WELIVER: Mr. Bobby Keaton, and —

[PANEL MEMBER]: Okay. And you had been

directed not to call him. Isn’t that correct?

WELIVER: Correct.

Caller ID system. Weliver testified that someone answered one of her

phone calls to Keaton, but the speaker stated that she had called the

wrong number. It is unclear whether the speaker was Keaton. Counsel

for Weliver suggested during his direct examination of her that the fact

that she did not reach Keaton meant that she did not violate the

directive.

App. 14

The Board’s finding that Weliver violated the man-

agement directive of December 10, 2003, was supported by

this evidence, which was substantial.

B. Refusal to Meet with Donna Jones on

March 4, 2004 and Vulgar Conduct During

the Meeting

The Proposal to Remove also identified numerous

instances of conduct by Weliver that was deemed “conduct

unbecoming a Federal employee.” One such instance

happened on March 4, 2004. In the Proposal to Remove,

Jones described the conduct as follows:

I asked you [referring to Weliver] if I could speak

to you in my office before you left for the day. I

told you that I needed to discuss with you allega-

tions made by your classmates. I also informed

you of your right to have union representation at

the meeting. You immediately told me that you

were not going to discuss anything with me today

or tomorrow... . You said that the students’ prob-

lems with you are my fault. You accused me of in-

fluencing them. You then told me that I would

pay for everything that I have done to you.

You then blew a kiss as you rose from your

chair and walked towards the door. As you were

leaving, you made a gesture to me by patting

your rear end towards me.

The Board found as a fact that this incident occurred. On

appeal, Weliver maintains this finding was in error be-

cause Jones was not a credible witness.

Jones’s testimony during the hearing before Examiner

Steinwedel confirmed this account of the meeting. Jones

App. 15

further testified that, immediately after the meeting, she

reported Weliver’s conduct to Faulkner-Martin. Faulkner-

Martin also testified about Weliver’s conduct at this

meeting (apparently based on Jones’s report to her). On

direct examination before the Board, Weliver denied

making the obscene gesture. Weliver was not asked

whether she told Jones that she would not meet with her.

Credibility determinations are normally within the

discretion of the Board.’ In its decision, the Board stated:

* This Court has distinguished between “testimonial inferences”

based on the demeanor of a witness and “derivative inferences” based

upon the evidence itself. Dep’t of Health & Mental Hygiene v. Shrieves,

100 Md. App. 283, 299-300 (1993); See also Anderson v. Dep't of Pub.

Safety & Corr. Serv’s, 330 Md. 187 (1993) (holding that an ALJ's

findings of fact based on demeanor-based credibility assessments

should be accorded greater weight by an agency because of the ALJ’s

unique opportunity to observe the witnesses). A “testimonial inference”

can only be drawn by a trier of fact who actually observes the witness

because:

All aspects of the witness’s demeanor — including the ex-

pression of his countenance, how he sits or stands, whether

he is inordinately nervous, his coloration during critical ex-

amination, the modulation or pace of his speech and other

non-verbal communication - may convince the observing

trial judge that the witness is testifying truthfully or falsely.

These same very important factors, however, are entirely

unavailable to a reader of the transcript, such as [an agency

or reviewing court}.

Shrieves, supra, 100 Md. App. at 300 (quoting Penasquitos Vill., Inc. v.

Nat'l Labor Relations Board, 565 F.2d 1074, 1078-79 (9th Cir. 1977)).

Whereas inferences drawn from the evidence itself - such as the

number of witnesses testifying to the same version of events, the

likelihood that one version of events is true based on logic or common

sense, or documentary evidence ~— can be made absent observation of

the witnesses.

In the case at bar, two hearings were held: one before Examiner

Steinwedel and one before the Board. Because the Board held a

continued, rather than de novo, hearing, it could only review the

(Continued on following page)

App. 16

“The Board of Appeals finds the testimony of the

[Agency]’s witnesses ... to be more credible than

[Weliver]’s testimony.” The Board had the opportunity to

observe Weliver’s testimony and to read the transcript of

the testimony of Jones and Faulkner-Martin, which

sharply conflicted with it. The Board apparently con-

cluded, based both on its demeanor-based assessment of

Weliver and the inferences it chose to draw from the

testimony of the Agency’s witnesses, that the Agency’s

version of events was more credible. We will not disturb

this finding because it was supported by substantial

evidence in the record.

C. Interruption of Training Exercise Gradua-

tion Speaker

The Proposal to Remove also alleged that Weliver had

interrupted the graduation speaker at an in-office cere-

mony commemorating the end of the training class. The

Board made the following finding in regard to this inci-

dent:

transcript of the testimony of the three witnesses presented at the first

hearing — Jones, Faulkner-Martin, and Gartelman. However, unlike in

Shrieves and Anderson, Examiner Steinwedel did not make any

findings of fact after the first hearing. Thus, the Board’s findings were

not in conflict with any previous findings.

While Weliver makes a passing reference in her brief to the

inability of the Board to observe the demeanor of the three initial

witnesses, she does not argue that the Board was unable to assess

credibility. Nevertheless, we are aware of the law and are conscious of

the fact that the Board did not obse.-ve three of the witnesses in this

case and, therefore, could not make demeanor-based credibility

assessments. However, because Weliver does not raise this argument on

appeal, we will not accord it much weight.

App. 17

On March 5, 2004, [Weliver], while attending a

graduation ceremony for herself and some of her

co-workers, interrupted the speaker and walked

out before the ceremony was concluded.

Jones and Faulkner-Martin both testified that the stu-

dents in the training class were told during class that an

in-office staff party and graduation ceremony would be

held at 8:00 a.m. on March 5, 2004. At that time, Jim

Riley, the Area Director, would hand out certificates to the

class members. A second graduation ceremony would be

held immediately thereafter, at 8:30 a.m., via teleconfer-

ence, for all the students across the country who had

perticipated in the same training.

Weliver testified that she was never told about the

first ceremony and that an electronic “Daily Reminders

List,” which appeared on each class members’ computer

screen, was misleading in that it stated “3/5/04 — Please

try real hard to have your food here by 8:00 a.m. The class

must attend the 8:30 IVT graduation after words of

encouragement from Jim Riley, AD.” Weliver thought this

notice meant there was no reason to be present until 8:30

a.m.

Jones testified that the students had been advised

orally, several times, that there would be an in-office

ceremony that would precede the national ceremony. It

was not reasonable, then, for Weliver to interpret the

electronic reminder as she did. Jones and Faulkner-Martin

both pointed out that Weliver was the only student (aside

from one student who was ill) who did not arrive on time

for the 8 a.m. ceremony.

According to Faulkner-Martin, Weliver arrived in the

classroom after the national ceremony was over. In Riley's

App. 18

written statement, which was admitted into evidence, he

stated that Weliver arrived around 9 a.m. Weliver testified

that she arrived around 8:35 a.m. All three agree that,

when Weliver arrived, the graduation certificates already

had been distributed, and Riley was in the middle of

making his remarks to the class. According to Jones,

Weliver walked to her desk and sat down, but then stood

up and said, “Excuse me, Mr. Riley, that’s a nice speech

that you're giving, but I didn’t get my certificate, and I

wanted to know why I didn’t get my certificate.” She then

turned and walked out of the classroom. Riley’s written

statement also confirms that Weliver walked out of the

classroom without asking permission.

Weliver testified that, during the ceremony, she raised

her hand and asked Riley, “May I impose?” She then asked

him why she had not received a certificate and whether

she could be excused from class. As Weliver described it,

the incident was not disruptive.

Again, conflicting testimony was received in regard to

this incident both before the Board and before Examiner

Steinwedel. The testimony of Jones and Faulkner-Martin

and the written statement of Riley were entirely consis-

tent. Weliver’s testimony conflicted with these accounts.

Further, according to Riley’s written statement, Weliver

arrived at 9 a.m., more than thirty minutes beyond the

time stated in the Daily Reminders List upon which she

claimed to have relied. Even if the Board credited

Weliver’s testimony that she arrived at 8:35 a.m., she was

still admittedly late to the ceremony. The Board reasonably

could infer from the evidence presented by the Agency that

the interruption of a graduation speaker, no matter how

polite the manner, would be inappropriate and disruptive,

especially if the student arrived late to the ceremony. There

App. 19

was substantial evidence in the record to support the

Board’s finding.

D. Threat to Donna Jones

The Proposal to Remove alleged that Weliver whis-

pered “I am going to kill you” to Jones, after she walked

out of the graduation ceremony. The Board found as a fact

that Weliver said those words.

Jones testified that Weliver made the death threat in

a soft voice, as Jones was walking by her cubicle. Thus,

only Jones and Weliver could have heard the alleged

threat. Jones testified “there was no mistake in what she

was saying.” Further, she testified that she immediately

informed Faulkner-Martin and Riley of Weliver’s threat.

Faulkner-Martin confirmed that Jones reported the threat

to her and to Riley shortly after Weliver walked out of the

graduation ceremony. Weliver denied having threatened

Jones. She testified that she would not have made this

type of threat because she would not have had the physical

strength to carry it out.

Again, the Board was faced with conflicting evidence

in the record. Jones testified that the incident occurred;

Weliver testified that it did not. Faulkner-Martin testified

that Jones reported the incident to her. As discussed

earlier, see supra, note 10, the Board could not make

demeanor-based assessments of the credibility of Jones

and Faulkner-Martin. However, the Board did observe

Weliver’s testimony and could make an assessment of her

credibility based on her demeanor. It is clear from the

totality of the Board’s decision that they did not find

Weliver to be a credible witness. Additionally, Jones’s

immediate report of the alleged threat to Faulkner-Martin

App. 20

provided corroboration for her version of events. The

Board’s finding was supported by substantial evidence.

E. Assaults upon Rebecca Gartelman

In the Proposal to Remove, Weliver was accused of

assaulting and harassing Rebecca Gartelman, a cleaning

woman in her office. The Board made the following find-

ings of fact about these allegations:

The [Agency] ... employed an outside con-

tractor, Service Master, to perform their cleaning

services. One of Service Master’s [sic] employees,

Ms. Rebecca Gartelman, worked at the Glen

Burnie office performing cleaning duties. On or

about March 16, 2004 [Weliver] began to harass

Ms. Gartelman. [Weliver] began telling Ms. Gar-

telman that she was being watched and that she

was going to lose her job. [Weliver] attempted to

pressure Ms. Gartelman into assisting her in

making complaints against the employer.

([Weliver] wanted Ms. Gartelman to sign state-

ments attesting to the fact that [Weliver] was be-

ing harassed by the employer and her co-

workers. Ms. Gartelman declined to get involved.

On one occasion [Weliver] pushed Ms. Gartelman

into a filing room and told her not to tell anyone

what [Weliver] had been saying to her. [Weliver]

made threats against Ms. Gartelman and Ms.

Gartelman’s child. Beginning on March 16, 2004

[sic] [Weliver] made nightly calls to Ms. Gartel-

man’s home, calling her hour after hour until as

late as 11:00 p.m.

On March 29, 2004, as Ms. Gartelman was

working in one of the building bathrooms, she

was approached by [Weliver]. [Weliver] came up

behind Ms. Gartelman, as she was cleaning a

App. 21

commode, and tried to push her head into the

commode. [Weliver] was able to push Ms. Gar-

telman’s head far enough into the commode to

cause the ends of her hair to become wet from

the water in the commode. While doing this

[Weliver] was again telling Ms. Gartelman that if

she did not help her, by confirming that [Weliver]

was being mistreated on the job, Ms. Gartelman

would be hurt in some way.

Three witnesses testified at the hearing before Exam-

iner Steinwedel about these allegations: Gartelman,

Jones, and Faulkner-Martin. The Board’s findings in effect

adopted Gartelman’s testimony about what had tran-

spired. Both Jones and Faulkner-Martin testified about

two meetings in which Gartelman had told them about

Weliver’s threats and assaults.” Faulkner-Martin de-

scribed Gartelman’s demeanor during these meetings as

“hysterical. She was crying. She was very upset. She was

shaking.” Jones testified that Gartelman was extremely

emotional.

Weliver testified that none of these incidents hap-

pened. She pointed out that, if the assault in the bathroom

had taken place as Gartelman described it — with the

bathroom door open — workers in nearby cffices would

Gartelman initially approached Jones on March 30, 2004 (after

the first Proposal to Remove dated March 24, 2004, had been issued),

and told her that she was having problems with W liver. Jones took

Gartelman to Faulkner-Martin’s office, where Gartelman recounted the

alleged assault in the file room and other harassment by Weliver.

Apparently, Gartelman returned to Jones and Faulkner-

Martin the next day and said she had not told them about another

incident because she was too embarrassed about it. She then told about

the incident when Weliver pushed her head into a toilet.

App. 22

have heard the commotion.” Finally, she claimed to have

had a cordial relationship with Gartelman, so much so

that Gartelman even had left her a note on one occasion

asking her to call her at home with regard to comments

Faulkner-Martin had made behind Weliver’s back.”

During Weliver’s testimony about the day she learned

about Gartelman’s allegations, the following ensued:

WELIVER: ...I discussed with [my lawyer] that we

must start an investigation. And I found out that this

woman [referring to Gartelman] has an — criminal re-

cords [sic].

[AGENCY COUNSEL]: Objection, Your Honor.

[BOARD MEMBER]: Sustained

" The Board denied Weliver’s request to introduce into evidence a

report by a private investigator describing the foot traffic in the area of

the bathroom at the time of the alleged assault. The Board reasoned

that the report was not relevant because it was made almost a year

after the alleged assault and was based on only a few observations of

the area.

” Weliver’s counsel obtained a handwriting expert to analyze

Gartelman’s handwritten note against known samples of her handwrit-

ing. The expert concluded that Gartelman wrote the note to Weliver.

However, the analysis was completed weeks after the first hearing

before Examiner Steinwedel ended and Gartelman’s testimony had long

since been concluded. Gartelman denied writing the note at the first

hearing.

At the continued hearing, the Board denied counsel’s request to

introduce the handwriting expert’s affidavit into evidence because the

samples of Gartelman’s handwriting had not been identified and

introduced into evidence during the prior hearing. (Additionally, the

original note was not presented at either hearing and there was some

question about the authenticity of the photocopy.) Weliver’s counsel

objected to the exclusion of the report. The Board overruled the

objection, but admitted the report for the purposes of identification on

appeal.

App. 23

WELIVER: I found out that she is —

[WELIVER’S COUNSEL]: All right. Let me

ask -

WELIVER: No, I must say it, Mr. Eigles [referring

to her attorney].

[WELIVER’S COUNSEL]: All right.

WELIVER: Please, I want, I want to tell them.

[WELIVER’S COUNSEL]: All right.

WELIVER: Then we found out that they want

to kill me.

Weliver’s counsel moved on to other matters after this

exchange.

The Board did not credit much of Weliver’s testimony

during the hearing, including her denial of Gartelman’s

accusations. They observed her demeanor and heard her

version of the events. Her testimony suggested a belief

that the entire staff of the Agency, as well as contractual

cleaning and security personnel, were conspiring against

her. The Agency, in its closing argument, stated: “You

should now understand that Ms. Weliver has grand

conspiracy theories. She believed everyone was harassing

her. She testified that everyone was lying about her.” The

testimony of Gartelman, while not made in the presence of

the Board, was corroborated and documented by two other

witnesses, Faulkner-Martin and Jones. In considering the

evidence as a whole, the Board could reasonably infer that

Gartelman was telling the truth. Therefore, substantial

evidence in the record supported the Board's findings.

App. 24

F. Reason for Rescission of Initial Proposal

for Removal

Lastly, Weliver challenges the Board’s finding that the

reason Jones rescinded the first Proposal to Remove

(dated March 24, 2004) and issued the superceding Pro-

posal to Remove (dated April 2, 2004) was because she

learned of the assaults upon Gartelman in the intervening

days.

Weliver argues that Faulkner-Martin and Jones

coerced Gartelman into making false statements against

her in order to bolster the Proposal to Remove. Weliver

provides no support for these allegations in her brief and

none was found in the record.

We have previously found substantial evidence sup-

ported the Board’s findings that the assaults occurred. We

similarly find substantial evidence in the record to support

the Board’s finding that the second Proposal to Remove

was issued in response to Gartelman’s allegations.

Il.

Weliver contends that she was denied due process of

law at the January 11, 2005 hearing before Examiner

Steinwedel.” She offers numerous reasons in support,

none of which are persuasive.

* As discussed, supra, Weliver moved for a de novo hearing

following the January 11, 2005 hearing. Examiner Steinwedel removed

the case to the Board of Appeals and the Board denied Weliver’s request

for a de novo hearing, holding a continued hearing instead. Weliver had

already been gramted a de novo hearing after her first hearing before

Examiner Sapp was continued due to her counsel becoming ill.

App. 25

We begin by noting that, in a hearing before an

administrative agency, the hearing examiner is not bound

by the rules of evidence or the procedures followed in a

court of law. See LE 58-506(a)(2) (describing procedures

before the Board of Appeals). The hearing examiner may

“admit probative evidence that reasonable and prudent

individuals commonly accept in the conduct of their,

affairs and give probative effect to that evidence.” Md.

Code (2004 Repl. Vol.), State Government Article (“SG”)

§ 10-213(b). “[W])hile administrative agencies are not

constrained by technical rules of evidence, they must

observe basic rules of fairness as to the parties appearing

before them so as to comport with the requirements of

procedural due process afforded by the Fourteenth

Amendment.” Travers v. Baltimore Police Dep't, 115

Md.App. 395, 411 (1997).

Weliver initially argues that the Agency was allowed

to offer “post hoc rationalizations” for terminating her

during the hearing. She asserts that “[plost hoc rationali-

zations are foreclosed when reviewing an agency determi-

nation whether by, counsel, administrative appellate body

or reviewing court.” Specifically, she complains that

Agency witnesses were allowed to testify about her exten-

sive history of disciplinary problems with the Agency and

were not constrained by the hearing examiner to testify

only about the specific allegations against her in the

Proposal to Remove.

The authority Weliver cites for the proposition that “post

hoc rationalizations” are impermissible at an administrative

App. 26

hearing does not support her argument.“ Moreover, the

testimony Weliver complains about concerned her conduct

during the training class, not prior instances of miscon-

duct. Weliver’s improper conduct during the training class

was specifically addressed by Jones in the “Proposal to

Remove”:

It is also noted that you [referring to Weliver]

harassed and intimidated other students while in

class. You complained to employees about man-

agement discriminating against you. Another

employee said that you accused him of harassing

* “Two of the cases cited by Weliver in her brief, Board of Educ. of

Montgomery County v. Paynter, 303 Md. 22 (1985) and N. L. R. B. v.

Metropolitan Life Ins. Co., 380 U.S. 438 (1965) concern the role of an

appellate court reviewing an agency decision. Paynter states that a

circuit court may not search the record and find “post hoc rationaliza-

tions” for an agency decision, but rather must rely on the agency’s

findings of fact when acting as a reviewing court. Paynter, supra, 303

Md. at 41. The Supreme Court decision in Metropolitan Life similarly

states that an agency may not argue on appeal new reasons why an

agency determination was made when those reasons are not apparent

from the agency decision at the administrative level. Metropolitan Life

Ins. Co., supra, 380 U.S. at 442-44. Neither of these decisions place any

restrictions on the hearing examiner at an administrative hearing.

Weliver also cites Maryland Shipbuilding & Drydock Co., Inc. v.

Maryland Com’n on Human Relations, 70 Md. App. 538 (1987) (“Mary-

land Shipbuilding”). In Maryland Shipbuilding, this Court affirmed

the decision of the Commission on Human Relations, finding that an

employee was denied a promotion for discriminatory reasons. In

discussing findings of fact made by the hearing examiner, this Court

stated that they agreed with the examiner that evidence offered during

the hearing by the employer had “the appearance of a post hoc ration-

alization.” Jd. at 552. Contrary to Weliver’s argument, this case does

not prohibit the use of “post hoc rationalizations” during administrative

hearings. Rather, this Court was merely noting that the hearing

examiner made an appropriate credibility determination when assess-

ing the employer’s reasons for terminating the employee.

App. 27

you and that his name was on your list of people

to sue.

The Hearing Examiner properly allowed testimony by

Agency witnesses that was relevant to the issue of

Weliver’s termination.

Weliver next argues that the hearing examiner failed

to control Agency witnesses during cross-examination and

allowed them to digress during their answers. Again, our

review of the record finds no evidence of any due process

violations.”

The next error asserted by Weliver concerns the

examiner’s decision to allow the Agency to question its

witnesses about a multitude of documents on direct

examination, before, they were formally moved into

evidence. Counsel for the Agency was allowed to wait until

the end of each witness’ testimony to identify and submit

all of the documents sequentially.

Weliver does not explain how this procedure violated

her right to due process of law. Weliver had previously

been given copies of all of the documents that the Agency

introduced. Furthermore, the documents were introduced

into evidence prior to her cross-examination of the Agency

witnesses. As previously discussed, administrative hear-

ings may be conducted informally and the examiner is not

bound by the rules of evidence and procedure followed in a

* We note that counsel for Weliver was admonished numerous

times for making arguments and failing to ask questions during cross

examination. The hearing examiner thus allowed all the witnesses

considerable leeway in attempting to answer the questions posed by

counsel.

App. 28

court of law. See COMAR 09.32.06.02. We find no due

process violation in this practice.

JUDGMENT AFFIRMED. COSTS

TO BE PAID BY THE APPEL-

LANT.

App. 29

APPENDIX B

Fatima G. Weliver * In the

Appellant " COURT OF SPECIAL

, APPEALS

vs.

Department of Labor, ; No. 20

Licensing and Regulation . September Term, 2006

Appellee *

ORDER

Upon consideration of Appellant’s Motion for Recon-

sideration of the Court’s reported opinion filed on Novem-

ber 3, 2006, it is this 21st day of December, 2006, by the

Court of Special Appeals,

ORDERED that Appellant’s Motion for Reconsidera-

tion is denied.

For a Panel of the Court

(CHIEF JUDGES SIGNATURE

APPEARS ON ORIGINAL ORDER)

CHIEF JUDGE

App. 30

APPENDIX C

Fatima G. Weliver ; IN THE

Petitioner * CIRCUIT COURT

v. : FOR

Social Security Administration, , ANNE ARUNDEL

and * COUNTY

Board of Appeals, Dep’t of Labor, : Case No.: C-2000-69271

Licensing and Regulation i

Respondents *

* - * ° Hs

MEMORANDUM OPINION AND ORDER

On February 27, 2006, the Court heard oral argu-

ments in a record appeal of this matter from the Board of

Appeals, Department of Labor, Licensing and Regulation.

The Court held the matter under advisement.

BACKGROUND

This is an Appeal from the Board of Appeals, Depart-

ment of Labor, Licensing and Regulation’s (“DLLR”)

decision, which affirmed the decision of the DLLR Claim

Specialist finding that Petitioner had been discharged

from her employment for gross misconduct within the

meaning of MD. CODE ANN., LABOR AND EMPLOYMENT §8-

1002. Gross misconduct is defined as a “deliberate and

willful disregard of standards of behavior that an employ-

ing unit rightfully expects and that shows gross indiffer-

ence to the interest of the employing unit.” MD. CODE

ANN., LABOR AND EMPLOYMENT §8-1002. Gross misconduct

is grounds for denying unemployment benefits.

App. 31

The Social Security Administration employed the.

Petitioner, Ms. Weliver, as a Social Insurance Specialist.

Ms. Weliver’s last day of work was March 29, 2004. She

was later discharged for her failure to follow a manage-

ment directive directing Petitioner to refrain from calling

co-workers after work hours and for actions that were

unbecoming of a federal employee. Petitioner’s actions

included a few alleged assaults.

Petitioner subsequently filed for unemployment

benefits. However, the DLLR Claims Specialist found that

the claimant’s actions constituted “gross misconduct”

pursuant to § 8-1002. Therefore, she was denied unem-

ployment benefits. Petitioner appealed the decision.

After several failed attempts to hold a hearing, on

January 11, 2005, a hearing took place before a DLLR

Hearing Specialist. Due to time constraints, the hearing

was scheduled to continue on a later date. The Board of

Appeals assumed jurisdiction of the case to continue the

hearing. The Board riled that the testimony and evidence

from the January 11, 2005, hearing were to be considered

evidence before the Board.

The Board of Appeals upheld the DLLR Claims

Specialist’s finding.

This appeal followed.

STANDARD OF REVIEW

Judicial review of the administrative adjudication of

unemployment insurance appeals is governed by MD.

CODE ANN., STATE GOv’T §8-512. “Findings of fact of the

Board of Appeals are conclusive and the jurisdiction of the

court is confined to questions of law if: (a) findings of fact

App. 32

are supported by evidence that is competent, material, and

substantial in view of the entire record; and (2) there is no

fraud.” See §8-512(d).

Findings of fact made by the Board are binding upon

this court if there is substantial evidence in the record to

support them. The Circuit Court must uphold an order of

an administrative agency if it is not based upon an errone-

ous determination of law and if the agency’s conclusions

reasonably may be based upon facts proven. Montgomery

County v. Buckman, 333 Md. 516, 519 (1994).

DISCUSSION

At the Board of Appeals hearing, both Ms. Weliver and

the employer had equal opportunity to present testimony

and evidence concerning the circumstances of Ms.

Weliver’s dismissal. At the conclusion of the hearing, the

Board held that the employer’s testimony and evidence

concerning the dismissal was more credible than the

evidence provided by Ms. Weliver.

This Court must decide whether there was enough

substantial evidence presented at the hearing to support

the Board of Appeals decision that “[t]he overwhelming

weight of the credible evidence supports a finding that the

claimant was discharged for gross misconduct within the

meaning of Section 8-1002.”

The Court finds that there is substantial evidence in

the record to support the Board’s finding that Ms. Weliver

was discharged for “gross misconduct.” The record indi-

cated that there were several instances of Ms. Weliver

violating am employer’s directive to refrain from calling

co-workers after hours. It contained evidence that Ms.

App. 33

Weliver threatened co-workers, made obscene gestures,

and even physically attacked a co-worker by forcing her

head into a toilet.

The preceding examples of Ms. Weliver’s conduct

clearly amount to substantial evidence that a reasonable

person could rely upon to find her guilty of gross miscon-

duct. Since this Court cannot substitute its own judgment

in light of the facts, it must uphold the Board of Appeals

findings. Therefore, this Court finds that the Board of

Appeals did not err in its decision.

CONCLUSION

For the above-stated reasons, the Court AFFIRMS the

decision of the Board of Appeals in this matter and will

enter the Order attached hereto.

/s/ Paul F. Harris, Jr.

PAUL F. HARRIS, JR., JUDGE

App. 34

ORDER

Upon consideration of the Petitioner’s Petition for

Judicial Review heard before this Court on February 27,

2006, it is this 3 day of March 2006, ORDERED that the

decision of the Board of Appeals be AFFIRMED.

/s/ Paul F. Harris, Jr.

PAUL F. HARRIS, JR., JUDGE

App. 35

APPENDIX D

DLLK JAMES D. FIELDER, Jr., Ph.D.,

STATE OF MARYLAND Secretary

DEPARTMENT OF LABOR

: Board of Appeals

LICENSING AND REGULATION Donna Watte-Lamont,

Chairperson

-~DECISION-

Claimant: Decision No.: 1875-BH-05

FATIMA G WELIVER ;

713 CLAREMONT DR. Date: September 2, 3006

LAFAYETTE, IN 47905 Appeal No.: 0418815

Employer: S.S. No.: 16-66-5565

SOCIAL SECURITY L.O. No.: 63

ADMINISTRATION Appellant: Board of

UC EXPRESS Assumed Jurisdiction

P.O. BOX 66945

ST. MO 63166-6945

Issue: Whether the claimant was discharged for miscon-

duct or gross misconduct connected with the work

within the meaning of Maryland Code, Labor and

Employment Article, Title 8, Section 8-1002 or

1003.

Whether the claimant was discharged for aggra-

vated misconduct connected with the work within

the meaning of Maryland Code, Labor and Em-

ployment Article, Title 8, Section 1002.1.

~- NOTICE OF RIGHT OF APPEAL TO COURT -

You may file an appeal from this decision in the Circuit

Court for Baltimore City or one of the Circuit Courts in a

county in Maryland. The court rules about how to file the

App. 36

appeal can be found in many public libraries, in the

Maryland Rules of Procedure, Title 7, Chapter 200.

The period for filing an appeal expires: October 1, 2005

- APPEARANCES -

FOR THE CLAIMANT: FOR THE EMPLOYER:

Henry Eigles, Esquire Taryn Jasner, Esquire

Fatima G. Wiliver Ray Melendez, Esquire

Dr. Betsy Crozier Linda Faulkner-Martin

Rebecca Gartelman Donna Jones

1100 N. EUTAW STREET 410-767-2781

ROOM 515 FAX 410-767-2787

BALTIMORE, MD 21201 TTY USERS, CALL VIA

THE MARYLAND RELAY

SERVICE

[LOGO]

Keeping Maryland Working and Safe

Ina Pippin

Robert Keaton

Theodore Taylor

Nita R. Alba, Union Representative

Emma L. Elder, Union Representative

PRELIMINARY STATEMENT

This case was originally scheduled for a hearing on August

30, 2004. The claimant’s attorney, Mr. Henry Eigles,

requested and was granted a postponement. The case was

next scheduled for September 10, 2004. The case was

again postponement [sic] at the request of the Employer’s

Representative and re-scheduled for September 16, 2004.

On September 7, 2004 this matter was again postponed,

pursuant to a request from the claimant’s attorney, as that

App. 37

date conflicted with the Jewish holiday of Rosh Hashanah.

The hearing was then set for October 1, 2004.

The first hearing in this matter finally began on October 1,

2004. However the claimant’s attorney became ill during

the course of the hearing. The Hearing Examiner stopped

the proceedings and it was agreed that the hearing would

be continued to another day. Before this matter could be

re-scheduled for the continued hearing the claimant’s

attorney requested and was granted a de novo hearing.

The new hearing was scheduled for November 15, 2004,

before Chief Hearing Examiner Louis Steinwedel. Unfor-

tunately none of the employer’s witnesses were available

on November 15th and this case again had to be post-

poned. The new hearing date was set for December 7,

2004. On the weekend preceding December 7, the em-

ployer’s counsel, Rafael Melendez was involved in a

motorcycle accident. This resulted in the case being

postponed until January 11, 2005.

On January 11, 2005 the de novo hearing in this matter

began with Chief Hearing Examiner Steinwedel presiding.

Testimony was presented from two witnesses for the

employer, Linda F. Martin and Donna Jones. The claim-

ant’s witness, Rebecca Gartelman, was allowed to testify

out of order. Following Ms, Gartelman’s testimony the

hearing was concluded for the day with a future date to be

set for additional testimony.

On February 18, 2005, the claimant’s attorney filed a

Motion for New De Novo Hearing To Provide Due Process

of Law. Chief Hearing Examiner Steinwedel ruled that the

allegations raised in the motion were without merit and

were rejected. However due to the nature of the allega-

tions and the possible perception of bias, and in consulta-

tion with the Board of Appeals, the case was removed to

the Board of Appeals.

App. 38

The Board of Appeals took jurisdiction of this case on April

11, 2005. In response to the employer’s Motion to Limit

Evidence and Testimony and the claimant’s response to

that motion, the Board of Appeals had an official tran-

script, of the hearing held on January 11, 2005, prepared.

After reviewing the entire record and history of this case

the Board of Appeals ordered the following on May 12,

2005:

1. All testimony and documents entered into evi-

dence at the hearing held on January 11, 2005

before Chief Hearing Examiner Louis Wm.

Steinwedel are in evidence before the Board of

Appeals and no additional testimony is needed

from the witnesses having already testified.

2. The Board of Appeals shall conduct a continued

hearing on this matter on June 2, 2005, begin-

ning at 9:30 a.m.

3. The following individuals shall be subpoenaed to

testifv on June 2, 2005:

Theodore Taylor (9:30)

Ina Pippin (9:30)

Suzy Solis (9:30)

Monique Hawley (9:30)

Robert Keaton (9:30)

James Riley (9:30)

Pilar Rhodes (1:30)

Lawrence W. Rhodes (1:30)

Brenda Van Bergen (1:30)

Emma Elder (1:30)

Nita Alba (1:30)

4. At the conclusion of the hearing on June 2, 2005

the Board of Appeals will determine whether or

App. 39

not to schedule additional time to hear further

testimony.

5. The Agency’s request to participate via telephone

is denied.

The hearing before the Board of Appeals was held and

concluded on June 6, 2005.

EVALUATION OF EVIDENCE

The Board of Appeals has considered all of the evidence

presented, including the testimony offered at the hearing.

The Board has also considered all of the documentary

evidence introduced in this case, as well as the Depart-

ment of Labor Licensing and Regulation’s documents in

the appeal file.

The Board of Appeals finds the testimony of the employer’s

witnesses and the claimant’s witness, Rebecca Gartelman

to be more credible than the claimant’s testimony. The

overwhelming weight of the credible evidence supports a

finding that the claimant was discharged for gross mis-

conduct within the meaning of Section 8-1002.

FINDINGS OF FACT

The claimant was employed as a Social Insurance Special-

ist (Claims Representative) with the Social Security

Administration. The claimant’s last day of work with this

employer was March 29, 2004. The claimant became

separated from employment as a result of a discharge.

The claimant was discharged for failure to follow a man-

agement directive and for conduct unbecoming a federal

employee. Specifically the claimant violated a manage-

ment directive, issued to her orally and in writing on

App. 40

December 10, 2003. The directive ordered the claimant to

refrain from calling co-workers at their homes. This

directive was issued by the employer in response to com-

plaints they had received from co-workers regarding the

claimant’s harassment of them. The claimant violated this

directive when she made phone calls to three co-workers

homes during the evening hours of March 4, 2004. The

claimant called one co-worker, and proceeded to scream at

and accuse the co-worker of harassing her. The claimant

called another co-worker and after receiving no initial

answer repeatedly called the co-worker’s home telephone

number approximately every fifteen minutes from 5:30 to

8:30 p.m. The claimant admitted calling her co-workers in

violation of the management directive.

On March 4, 2005 [sic], the claimant was asked by her

supervisor, Donna Jones, to meet with her in her office.

Ms. Jones informed the claimant that there were certain

allegations from her co-workers that needed to be dis-

cussed. The claimant refused to meet with Ms. Jones and

proceeded to make threats against Ms. Jones and her co-

workers. The claimant then rose from her chair, blew a

kiss and walked towards the door. As the claimant was

leaving she patted her behind towards Ms. Jones.

On March 5, 2004, the claimant, while attending a

graduation ceremony for herself and some of her co-

workers, interrupted the speaker and walked out before

the ceremony was concluded. Later that day the claimant

stated to Ms. Jones. “I am going to kill you.”

The Social Security Administration office in Glen Burnie,

Maryland employed an outside contractor, Service Mas-

ters, to perform their cleaning services. One of Service

Master’s employees, Ms. Rebecca Gartelman, worked at

App. 41

the Glen Burnie office performing cleaning duties. On or

about March 16, 2004 the claimant began to harass Ms.

Gartelman. The claimant began telling Ms. Gartelman

that she was being watched and that she was going to lose

her job. The claimant attempted to pressure Ms. Gartel-

man into assisting her in making complaints against the

employer. The claimant wanted Ms. Gartelman to sign

statements attesting to the fact that the claimant was

being harassed by the employer and her co-workers. Ms.

Gartelman declined to get involved. On one occasion the

claimant pushed Ms. Gartelman into a filing room and

told her not to tell anyone what the claimant had been

saying to her. The claimant made threats against Ms.

Gartelman and Ms. Gartelman’s child. Beginning on

March 16, 2004 the claimant made nightly calls to Ms.

Gartelman’s home, calling her hour after hour until as late

as 11:00 p.m.

On March 29, 2004, as Ms. Gartelman was working in one

of the building bathrooms, she was approached by the

claimant. The claimant came up behind Ms. Gartelman, as

she was cleaning a commode, and tried to push her head ,

into the commode. The claimant was able to push Ms.

Gartelman’s head far enough into the commode to cause

the ends of her hair to become wet from the water in the

commode. While doing this the claimant was again telling

Ms. Gartelman that if she did not help her, by confirming

that the claimant was being mistreated on the job, Ms.

Gartelman would be hurt in some way.

Prior to learning about the claimant’s actions against Ms.

Gartelman, the employer had issued a proposal for the

claimant’s removal from her position. After learning of the

claimant’s actions towards Ms. Gartelman, that proposal

was withdrawn and a new proposal for removal was issued

App. 42

on April 2, 2004. The claimant was immediately dis-

charged by the employer.

CONCLUSIONS OF LAW

Section 8-1002 of the Labor and Employment Article

defines gross misconduct as conduct of an employee that is

a deliberate and willful disregard of standards of behavior

that an employing unit rightfully expects and that shows

gross indifference to the interests of the employing unit or

repeated violations of employment rules that prove a

regular and wanton disregard of the employee’s obliga-

tions.

In a case of a discharge the burden is on the employer to

prove, by a preponderance of credible evidence, that the

claimant was discharged for actions that rose to the level

of gross misconduct within the meaning of Section 8-1002

of the Labor and Employment Article. The employer has

met its burden in this case.

Many of the claimant’s co-workers complained to the

employer regarding the claimant’s annoying and harassing

telephone calls to their homes. The claimant’s behavior

necessitated the employer issuing a management directive

to her to refrain from calling her co-workers at their

homes. The claimant failed to comply with the employer’s

directive. Instead she continued to make these calls. The

claimant also refused to meet with her supervisor when

reasonably requested to do so.

The claimant went beyond just her co-workers in her

continuing harassment of individuals. The claimant began

a campaign to get a contractual worker, Ms. Rebecca

Gartelman, to assist her in her complaints against the

App. 43

employer. In an act which by itself would constitute gross

misconduct within the meaning of Section 8-1002, the

claimant attacked Ms. Gartelman and attempted to push

her head into a commode.

The claimant was discharged for her actions.

DECISION

It is held that the claimant was discharged for gross

misconduct connected with the work, within the meaning

of Maryland Code Annotated, Labor and Employment

Article, Title 8, Section 1002. The claimant is disqualified

from receiving benefits from the week beginning March

28, 2004 and until the claimant becomes re-employed,

earns at least twenty times her weekly benefit amount

and thereafter becomes unemployed, through no fault of

her own.

The decision of the Claims Specialist is affirmed.

/s/ Donna Watts-Lamont

Donna Watts-Lamont, Chairperson

/s/ Clayton A. Mitchell, Sr.

Clayton A. Mitchell, Sr., Associate Member

/3s/ Francis E. Sliwka, Jr.

Francis E. Sliwka, Jr., Associate Member

Date of hearing: June 02, 2005

Copies mailed to:

FATIMA G. WELIVER

SOCIAL SECURITY ADMINISTRATION

HENRY EIGLES ATTY. AT LAW

TARYN F. JASNER ESQ.

Michael Taylor, Agency Representative

App. 44

APPENDIX E

FATIMA G. WELIVER * IN THE

. , COURT OF APPEALS

BOARD OF APPEALS, * OF MARYLAND

DEPARTMENT OF LABOR * ps0, pocket No. 557

LICENSING AND * September Term, 2006

REGULATION, et al. :—

* (No. 20, Sept. Term,

* 2006 Court of Special

* Appeals)

ORDER

Upon consideration of the petition for a writ of certio-

rari to the Court of Special Appeals and the answer filed

thereto, in the above entitled case, it is

ORDERED, by the Court of Appeals of Maryland, that

the petition be, and it is hereby, denied as there has been

no showing that review by certiorari is desirable and in

the public interest.

/s/_ Robert M. Bell

Chief Judge

DATE: March 16, 2007

App. 45

APPENDIX F

FATIMA G. WELIVER * IN THE

v. , COURT OF APPEALS

BOARD OF APPEALS, * MARYLAND

DEPARTMENT OF LABOR, * Petition Docket No. 557

LICENSING AND *

REGULATION, et al. , September Term, 2006

* (No. 20, Sept. Term,

* 2006 Court of Special

* Appeals)

ORDER

The Court having considered the motion for reconsid-

eration filed in the above entitled case, it is

ORDERED, by the Court of Appeals of Maryland, that

the motion for reconsideration be, and it is hereby, denied.

/s/_ Robert M. Bell

Chief Judge

DATE: June 8, 2007

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.