Mihailovich v. Department of Health & Mental Hygiene
170 A.3d 870
| Md. Ct. Spec. App. | 2017Background
- Kevin Mihailovich, a Certified Nursing Assistant at the Thomas B. Finan Center (a 24/7 DOH facility), was involved in an incident on March 3, 2015 that management viewed as misconduct.
- DOH learned of the incident immediately; Mihailovich was placed on paid administrative leave March 4–17, 2015 and then notified of a 15-day suspension without pay on March 17.
- Mihailovich timely appealed administratively; an ALJ reversed the suspension and ordered back pay, finding the suspension untimely under SPP § 11-106(c).
- DOH sought reconsideration (denied) and then judicial review; the Circuit Court for Baltimore City reversed the ALJ and reinstated the suspension.
- The Court of Special Appeals reviewed de novo the ALJ’s statutory interpretation issue: whether the statute’s “5 workdays” is measured by the appointing authority’s schedule or the employee’s schedule, and whether administrative leave affects the employee’s “next shift.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 5 “workdays” in SPP § 11-106(c) are measured by the appointing authority’s workdays or the employee’s workdays | Mihailovich: “workday” refers to the appointing authority’s schedule; count agency workdays (exclude weekends/holidays/employee leave as to agency calendar) | DOH: “workday” refers to the employee’s schedule; exclude days the employee is on leave and count relative to employee shifts | Held: “Workday” refers to the appointing authority’s schedule; 5 consecutive calendar agency workdays (subject to statutory exclusions) |
| Whether the 5-workday period began after the close of the employee’s next shift despite administrative leave | Mihailovich: the next-shift trigger remains operative even if employee is placed on administrative leave; counting begins the day after that shift | DOH: placing employee on leave alters counting; those leave days should be excluded as employee leave | Held: The period begins the day after the employee’s next shift; administrative leave does not convert the agency’s counting method to the employee’s schedule (court did not need to resolve DOH’s alternative) |
| Whether the ALJ correctly counted/excluded statutorily excluded days (weekends/holidays/leave) | Mihailovich: ALJ miscounted by using employee schedule and including excluded days; correct count shows suspension was untimely | DOH: (disagreed with ALJ’s counting; argued leave exclusion) | Held: ALJ erred in counting (included weekends and an employee leave day); proper counting shows DOH failed to timely impose suspension, so ALJ’s ultimate result is correct though by different reasoning |
| Remedy / disposition | Mihailovich: suspension invalid; back pay ordered | DOH: circuit court reinstated suspension; appealed | Held: Court of Special Appeals reversed circuit court, remanded with instruction to affirm ALJ’s decision consistent with this statutory interpretation (suspension untimely) |
Key Cases Cited
- W. Corr. Inst. v. Geiger, 371 Md. 125 (2002) (interpreting SPP § 11-106 as a connected scheme; agency knowledge triggers time periods and the 30-day investigatory framework)
- White v. Workers’ Comp. Comm’n, 161 Md. App. 483 (2005) (applies Geiger reasoning to hold suspensions imposed outside the 5-workday limit violate § 11-106(c))