Академический Документы
Профессиональный Документы
Культура Документы
*
* * * * * * * * * * * * *
PROPOSED RULING ON MOTION FOR SUMMARY DECISION
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
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.
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
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
2
the Appellant was not provided due process in accordance with regulations that govern
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
ISSUES
(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
1. Portions of the transcript from the 2011 hearings before HO Robert Troll, Jr., Esquire
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
1. The Appellant was hired as a substitute teacher with PGCPS in September 2001. He later
2. The Appellant became a certified teacher in 2005 and signed a regular contract with the
Parkdale High School. At the end of the 2006/2007 academic year, the Technology
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
7. The Appellant filed an appeal of the June 18, 2010 notice of termination within five days
1
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.
4
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
Parties before the OAH have the right to move for summary decision on any appropriate
5
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
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
2
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.
6
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 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.
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
7
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,
The PGCPS regulations for supporting personnel indicate in Section VII the following
pertinent section:
VII. Appeals:
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
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
8
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
BMZ/emh
# 138865
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.
J osephat Mua
2332 London Bridge Drive
Silver Spring, MD 20906