By Chris Mincher
Of counsel, McAllister, DeTar, Showalter & Walker
Everyone working for the State knows it takes a while before someone can be fired. A major reason for that is COMAR 17.04.05.03(A), which requires that an employee whose performance is deemed unsatisfactory on an annual appraisal must be given 180 days to try to improve. The reality is, though, that sometimes it becomes obvious during that six-month period that the person isn’t improving and shouldn’t keep the job. When can the termination process start?
The recent Appellate Court decision in Lavetta Jackson v. Md. Dep’t of Housing and Community Development provides some guidance. There, a Maryland Department of Housing and Community Development employee’s unsatisfactory review occurred on July 3, 2019, giving her until December 30 of that year to get a satisfactory review. With two weeks to go, however, on December 17, her supervisor could tell what was coming, and emailed the division director stating that another unsatisfactory appraisal was on the way and recommending termination.
By the time the last day of the 180 days had rolled around, termination had received all the necessary approvals and was set for January 3, 2020. On that day, Ms. Jackson had her review, which was (as expected) unsatisfactory, and received a notice of termination. She appealed, arguing that the preparations for her termination occurring before December 30 meant that she didn’t get the full 180 days to improve.
That didn’t persuade the Appellate Court panel, however. Up until the point when the employee actually received the notice of termination, the Court reasoned, “the termination process could have been reversed” if there was a positive change in performance. In the interim, a State agency is not prohibited from “reasonably preparing for a probable termination.”
Ms. Jackson raised another interesting issue as well. COMAR 17.04.05.03(C) states that before an employee can be disciplined for “performance-related reasons,” a meeting must be held to hear out the employee’s explanation. From prior case law she argued this must be a “meaningful opportunity to respond,” which she didn’t get because the decision to terminate her had already been made by the time of her meeting.
The Court, however, found that COMAR 17.04.05.03(C) didn’t apply at all to termination for unsatisfactory performance appraisals — that scenario is laid out in COMAR 17.04.05.03(G). As the Court saw it, the regulations describe different processes, one by which there’s a performance-related reason for discipline (in which case the steps of (C) are followed) and one by which someone isn’t able to get a satisfactory appraisal within 180 days of a unsatisfactory one (in which case the person is automatically terminated pursuant to (G)). That is also indicated by COMAR 17.04.05.03(E), which sets the timing for performance-related discipline but specifically carves out the appraisal scenario.
One last note is the confusion about G(2), which requires the “Secretary” to be notified of a termination for an unsatisfactory performance appraisal. Ms. Jackson argued that this creates a requirement of prior approval by the head of the principal unit — here the Secretary of Housing and Community Development — before such a termination. There wasn’t evidence that the Secretary of Housing and Community Development ever received the G(2) notice.
The Court held that the G(2) notice requirement does not mean the head of the principal unit has to approve of the termination beforehand; G(1) provides for termination all on its own. That seems to be right from a reading of the regulation language… but there’s still a confusing question here: What Secretary are we talking about? The opinion says Ms. Jackson asserts the Secretary of Housing and Community Development should have received the notice, and that seems to be both the position the agency took in defending it and that the Court took in deciding it. The regulation’s definition of “Secretary,” however, is the Secretary of Budget and Management, not the head of the principal unit, so there’s some disconnect about that detail.
All in all, there are some small, but still helpful, takeaways from this case for State lawyers who handle employment issues. One, it’s okay to start preparing for a termination that’s bound to occur, even before the 180-day improvement period has officially ended. Two, the steps of COMAR 17.04.05.03(C) don’t have to be followed if the employee is getting fired for a bad appraisal pursuant to (G). Yes, terminating a State worker is still a long and involved process, but appellate opinions like this show there is some room to streamline it.