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JOSEPHAT MUA, * BEFORE BRIAN ZLOTNICK,

APPELLANT * AN ADMINISTRATIVE LAW JUDGE

v. * OF THE MARYLAND OFFICE

PRINCE GEORGE'S COUNTY * OF ADMINISTRATIVE HEARINGS

PUBLIC SCHOOLS * OAH No.: MSDE-BE-01-12-32309

*
* * * * * * * * * * * * *
PROPOSED RULING ON MOTION FOR SUMMARY DECISION

STATEMENT OF THE CASE


ISSUE
EXHIBITS
UNDISPUTED FACTS
DISCUSSION
CONCLUSIONS OF LAW
ORDER

STATEMENT OF THE CASE

The Appellant has been employed with the Prince George's County Public Schools

(PGCPS) since 2001. On November 10, 2010, William R. Hite (Local Superintendent) notified

the Appellant that he was recommending to the Board of Education of Prince George's County

(local board) that the Appellant's employment be terminated because of incompetence and

misconduct in office. Md. Code Ann., Educ. § 6-202 (2008 & Supp. 2012). See also Code of

Maryland Regulations (COMAR) 13A.Ol.05, .07B. The Appellant filed an appeal resulting in

the local board's appointment of a Hearing Officer (HO) to conduct a due process hearing and to

provide it with a recommendation about whether to uphold the termination. After conducting a

five-day hearing on July 12, 13, 27, 2011; August 3, 2011; and October 6, 2011, the HO

recommended that the Local Superintendent's proposed termination of the Appellant's

employment with PGCPS, effective March 24, 2010, be upheld. The Appellant appealed this
decision to the Maryland State Depaitment of Education (State Board) and, on August 14, 2012,

the State Board transmitted the case to the OAH for a de nova hearing pursuant to COMAR

13A.01.05.05F.

On October 4, 2012, I held a preheating conference (Conference) in this matter at the

Office of Administrative Hearings (OAH) in Hunt Valley, Maryland. Shani K. Whisonant,

Esquire, represented the local board. Josephat M. Mua (Appellant) represented himself. I issued

a Prehearing Conference Order on October 5, 2012, which ordered the parties to exchange any

discovery requests no later than October 15, 2012. On October 12, 2012, the Appellant filed a

Request for Production of Documents and a First Set of Inten-ogatories (Discovery Request) with

the Respondent. On October 22, 2012, the Appellant filed a Motion to Compel Responses to

Discovery and For Sanctions (Motion). On October 23, 2012, the local board filed a Response to

the Discovery Request (Response). On October 31, 2012, the local board filed an Opposition to

the Motion. The local board filed its final witness list on October 25, 2012. The Appellant filed

his final witness list with the OAH on October 25, 2012. On November 1, 2012, I issued a ruling

to extend the deadlines for submission of witness lists and responses to those lists as well as

other deadlines that were originally set in the October 5, 2012 Prehearing Conference Order.

The November 1, 2012 ruling set a November 8, 2012 deadline for submission of any responses

to the witness lists and a November 15, 2012 deadline for the issuance of my ruling on witnesses.

The Appellant and the local board filed responses to opposing party's witness lists on November

8, 2012.

·' On November 15, 2012, I issued a ruling on witnesses and a ruling that denied the

Appellant's Motions to Strike submissions by the local board.

On October 16, 2012, the Appellant filed a Request for an Emergency Motion to Clarify

an Important Issue. I considered this to be a Motion for Summary Decision which argued that

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the Appellant was not provided due process in accordance with regulations that govern

supporting personnel as opposed to procedures that govern certified teachers.

On October 25, 2012, the local board filed a response to the Appellant's October 16,

2012 submission.

On November 8, 2012, the Appellant filed a Motion for Summary Judgment that renewed

his argument that his dismissal was illegal as he was misclassified as a teacher instead of an

information technology support technician. On November 20, 2012, the local board filed a

response to the November 8, 2012 motion. On November 16, 2012, the local board filed a

Motion for Summary Decision and the Appellant filed a response to this motion on November

20, 2012. On November 16, 2012, the Appellant also filed a Motion to Strike the local board's

Motion for Summary Decision.

ISSUES

(1) Should the Appellant's Motion for Summary Decision be granted?

(2) Should the local board's Motion for Summary Decision be granted?

EXHIBITS

For the purposes of ruling on this Motion, I considered the record that was developed

below, which included the following pertinent documents:

1. Portions of the transcript from the 2011 hearings before HO Robert Troll, Jr., Esquire

2. Appellant's Exhibits A through Tf1TIT that were admitted below

3. Hearing Examiner's Findings of Fact, Conclusions of Law and Recommendation, dated

January 19, 2012

4. Decision of the Board, dated July 11, 2012


I also considered the exhibits attached to the Appellant's Motions for Summary Decision

and those exhibits attached to the local board's Motion for Summary Decision.

UNDISPUTED FACTS 1

Having considered the Motion and Response, as well as the record developed below, I

find the following material facts are undisputed:

1. The Appellant was hired as a substitute teacher with PGCPS in September 2001. He later

became a full-time teacher in 2003 .

2. The Appellant became a certified teacher in 2005 and signed a regular contract with the

PGCPS on or about August 22, 2005 .

3. In 2006 the Appellant was promoted to the position of Technology Coordinator at

Parkdale High School. At the end of the 2006/2007 academic year, the Technology

Coordinator positions were eliminated throughout the PGCPS system.

4 . For the 2007 /2008 academic year the Appellant obtained the position of Information

Technology (IT) Technician II and was subsequently reassigned to Laurel High School.

5. The Appellant remained at Laurel High School until September 2008 when he was

transferred to a field IT position in which he was responsible for six elementary schools. In

June 2009 the Appellant was transferred to a position with the PGCPS IT Help Desk.

6. On March 24, 2010, the Appellant was notified of his termination from his position as an

IT Technician II and that termination was affirmed by the Superintendent in a final notice of

termination issued on June 18, 2010.

7. The Appellant filed an appeal of the June 18, 2010 notice of termination within five days

of the date of that notice.

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As will be explained in the Di scussion, I am only making Findings of Fact as to the first issue relating to the
Motion pertaining to timeliness.

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8. Hearing Examiner Robert Troll, Jr. held a hearing on the Superintendent's

recommendation for termination of the Appellant's employment with PGCPS. Mr. Troll

conducted these hearings on July 12, 13, 27, 2011; August 3, 2011 and October 26, 2011.

DISCUSSION

The first issue is whether the OAH has jurisdiction over the present matter. It is well-settled

that timeliness is jurisdictional. If an appeal is not filed within the required time, no jurisdiction

is acquired and the appeal must be dismissed. Walbert v. Walbert, 310 Md. 657, 662 (1987), and

cases cited therein . The reasons for holding timeliness to be jurisdictional were articulated by

the Court of Appeals in Murphy v. Merzbacher, 346 Md. 525, 531-32 (1997), as follows:

As the United States Supreme Court acknowledged over fifty years ago :
'Statutes of limitation find their justification in necessity and convenience rather
than in logic. They represent expedients, rather than principles. They are
practical and pragmatic devices to spare the courts from litigation of stale claims,
and the citizen from being put to his defense after memories have faded, witnesses
have died or disappeared, and evidence has been lost. (Internal citation omitted).
They are by definition arbitrary, and their operation does not discriminate
between the just and unjust claim, or the voidable and unavoidable delay. They
have come into the law not through the judicial process but through legislation.
They represent a public policy about the privilege to litigate.' Chase Securities
Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628, 1635
(1945) . Thus, when plaintiffs imprudently prolong their decision to bring an
action, these statutes act as a complete bar to their claims, relieving potential
defendants from the pending burden. (Internal citation omitted).

Since timeliness is a jurisdictional issue it cannot be waived. Dabrowski v. Dabrowski, 320 Md.

392 (1990). If the OAH lacks jurisdiction to hear a matter, it must dismiss the case as a matter of

law. COMAR 28.02.01.12. I find that the corollary applies as well if the appeal hearing is not held

in accordance with stated timelines. The Appellant in this matter suffered the same due process

violation as an agency would with a late appeal in that evidence is lost, memories fade and

witnesses could die or become unattainable.

Parties before the OAH have the right to move for summary decision on any appropriate

issue. COMAR 28.02.0l.12D(l). An order for summary decision is appropriate if "there is no

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genuine dispute as to any material fact and that the party in whose favor judgment is entered is

entitled to judgment as a matter of law ." COMAR 28.02.02.12D(4). When reviewing a motion

for summary decision, the facts must be considered in a light most favorable to the non-moving

party and all inferences reasonably drawn from those facts must be construed in favor of the non-

moving party. Richman v. FWB Bank, 122 Md. App . 110, 146 (1998). The non-moving party

must establish, however, that there is a genuine dispute as to a fact or facts that will affect the

outcome of the case. Id.

Whether a dispute of fact is actually a genuine dispute of fact so as to overcome summary

decision has recently been discussed by the Maryland Court of Special Appeals in Benway v.

Maryland Port Administration, 191 Md. App. 22 (2010) (holding that moving party was entitled

to summary judgment 2 where non-moving party only provided conclusory evidence to refute the

evidence showing, in a death benefits claim, that the decedent had no legitimate reason to be on

the employer' s property at the time of the accident). In Benway, the non-moving party

contended that summary judgment was inappropriate because there were material facts in

di spute. 191 Md. App. at 46. The Court of Special Appeals noted that in order for there to be

disputed facts sufficient to defeat summary judgment in the moving party's favor there must be

evidence on which the jury could reasonably find for the non-moving party. Id. citing Clark v.

O'Malley, 169 Md. App. 408, 423-24 (2006), aff'd 404 Md. 13 (2008). The Benway court found

that the widow, the non-moving party, failed to provide sufficient evidence upon which a jury

could find in her favor as she was unable to effectively dispute the testimony of the decedent's

supervisors. 191 Md. App. at 46 . Rather, she offered an alternate theory of the events that led to

her husband's death, but had no evidence to prove her version of the events. Id. The Court of

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The Maryland courts refer to a Motion for Summary Decision as a Motion for Summary Judgment. See Maryland
Rule 2-50l(f) . As Maryland Rule 2-50l(f) and COMAR 28.02 .0 l.12D(l) are nearly identical, court analyses of the
former are necessarily applicable to the latter. Both terms may be used interchangeably throughout this Decision.

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Special Appeals stated that "mere disagreement with the testimony of [the opposing side] does

not provide a sufficient basis for a genuine dispute of material fact." Id.

The Benway court went on to state:

The proper standard ... is that a party must provide the court with more than a
different theory of how the events transpired: conclusory statements, conjecture,
or speculation by the party resisting the motion will not defeat summary judgment
and an opposing party's facts must be material and of a substantial nature, not
fanciful, frivolous, gauzy, spurious, irrelevant, gossamer inferences, conjectural,
speculative, nor merely suspicions.

191 Md. App. at 46-47 (internal citation omitted). Thus, to overcome a motion for summary

judgment, the non-moving party is "required to provide more than 'general allegations which do

not show facts in detail and with precision."' 191 Md. App. at 47, citing Rite-Aid Corp. v.

Hagley, 374 Md. 665 684 (2003).

In this matter, it is undisputed that the Appellant was no longer a teacher when he was

terminated from employment by PGCPS in 2010. The local board argued that the Appellant also

maintained a Maryland Teacher's Certificate and was still under a Regular Teacher's Contract at

the time of his termination. I disagree with the local board's assertion. I find that at the time of

the Appellant's termination he was employed as a support staff employee and not a certified

teacher, thus the authority to terminate him from employment is controlled by Md. Code Ann.,

Educ. § 4-205(c) (2008 & Supp. 2012). In fact, in the local board's Response to the Appellant's

motion for summary decision it stated that it does not oppose Appellant's request that this appeal

proceed under § 4-205(c) of the Education Article if the Appellant agreed that the appeal would

proceed as a record appeal based solely on the record created in the hearing before HO Troll and

that the Appellant would waive any and all timeliness arguments that arose out of the local

board's purported failure to hold a hearing within five to thirty days of its termination decision .

The local board went on to argue in its Response that there were numerous State Board of

Education decisions that held that a timeliness due process defect is cured when the local board

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ultimately holds a hearing. I note that none of the cases cited by the local board are reported

cases and thus are not controlling on this tribunal. Further, as noted above, the Court of Appeals

held in Murphy v. Merzbacher that there are practical and pragmatic reasons to spare the courts

from litigation of stale claims and citizens from making their claims after memories have faded,

witnesses have died or disappeared, and evidence has been Jost.

The PGCPS regulations for supporting personnel indicate in Section VII the following

pertinent section:

VII. Appeals:

A permanent employee who is disciplined as provided above, may within


five (5) working days of notice of such action, address a written request for a
hearing to the Superintendent of Schools. In the event of such a request, the
Superintendent of Schools shall arrange for a hearing to be held not less than five
(5) or more than thirty (30) working days after receipt of the request. ..

Consequently, there is no genuine dispute that the Appellant filed an appeal of his termination in

June 2010 and a hearing on that appeal was not held before a board of education hearing

examiner until July 2011, well beyond the thirty day deadline imposed by the PGCPS

regulations. Accordingly, the Appellant is entitled to have the te1mination rescinded and he is

also entitled to all back pay and benefits lost as a result of the local board's actions.

Furthermore, as the issue of timeliness is dispositive, there is no need to rule on the local

board's Motion for Summary Decision which is based upon the merits of the termination of the

Appellant from PGCPS.

CONCLUSIONS OF LAW

Based on the foregoing , I conclude as a matter of law that the local board failed to timely

conduct an appeal of termination hearing and, therefore, the OAH has no jurisdiction to hear an

appeal of this matter. Walbert v. Walbert, 310 Md. 657 (1987).

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I further conclude as a matter of Jaw that the Appellant has met his burden in his motion

for summary decision and that he should be reinstated with full back pay and benefits. COMAR

28 .02.0l.12D.

ORDER

The Appellant's Motion for Summary Decision is GRANTED. The June 2010

termination of the Appellant is RESCINDED and the Appellant shall be reinstated to the

PGCPS as a Help Desk support staff employee and awarded full back pay and benefits. It is

further ORDERED that the scheduled December 5, 6, 12, 2012 and January 7, 8, and 9, 2013

hearings on the merits are cancelled.

November 26, 2012


Date Decision Mailed Brian Zlotnick
Administrative Law Judge

BMZ/emh
# 138865

NOTICE OF RIGHT TO FILE OBJECTIONS

Any party adversely affected by this Proposed Decision has the right to file written
objections within fifteen days of receipt of the decision; parties may file written responses to the
objections within fifteen days of receipt of the objections. Both the objections and the responses
shall be filed with the Maryland State Department of Education, c/o Sheila Cox, Maryland State
Board of Education, 200 West Baltimore Street, Baltimore, Maryland 21201-2595, with a copy to
the other party or parties . COMAR 13A.Ol.05.07F. The Office of Administrative Hearings is not a
party to any review process.

Copies Mailed To:

Shani K. Whisonant, Esquire


Pessin Katz Law, P.A.
10500 Little Patuxent Parkway, Suite 650
Columbia, MD 21044

J osephat Mua
2332 London Bridge Drive
Silver Spring, MD 20906