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ARROYO v. BOARD OF EDUCATION
851 A.2d 576 (2003)
381 Md. 646
Robert ARROYO
v.
BOARD OF EDUCATION OF HOWARD COUNTY.
No. 114, September Term, 2003.
Court of Appeals of Maryland.
June 10, 2004.
Francis A. Pommett, III (Law Offices of Nathanson & Pommett, P.C., Baltimore), on brief, for Appellant.
Michael S. Molinaro (Reese & Carney, LLP, Columbia), on brief, for Appellee.
Argued Before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.
CATHELL, Judge. This case concerns a decision by the Board of Education of Howard County ("County Board"), respondent, to terminate the employment of Robert Arroyo, petitioner, a guidance counselor employed by the Howard County Public School System ("HCPSS"),1 and whether the later affirmance of that decision by the Maryland State Board of Education ("State Board") constituted an exhaustion of petitioner's administrative remedies. Prior to the instant case, petitioner had previously contested his termination through the administrative procedures available to him under Md.Code (1978, 2001 Repl.Vol., 2003 Supp.), § 6-202 of the Education Article. After a May 28, 1998 decision by the State Board that affirmed the County Board's decision to terminate petitioner's employment, petitioner sought judicial review of the State Board's decision under Md.Code (1984, 1999 Repl.Vol.), § 10-222 of the State Government Article. Upon judicial review, the State Board's decision was affirmed by the Circuit Court for Howard County on April 8, 1999, and by the Court of Special Appeals on June 14, 2000.2 On February 8, 2002, petitioner then filed this separate civil complaint sounding in tort against the County Board and Howard County, Maryland, alleging wrongful termination from his employment with HCPSS.3 In the present case, the County Board filed an answer to petitioner's February 8, 2002 complaint and, on May 29, 2002, moved for summary judgment, arguing that petitioner's claim was barred by the statute of limitations. On April 15, 2003, the Honorable Lenore Gelfman of the Circuit Court for Howard County held a hearing on the motion. On May 5, 2003, Judge Gelfman issued a memorandum opinion and order granting the County Board's motion for summary judgment, holding that petitioner's lawsuit was barred by the statute of limitations. Petitioner then appealed this decision to the Court of Special Appeals. On February 2, 2004, prior to consideration by the Court of Special Appeals, we issued a Writ of Certiorari. Arroyo v. Board of Education, 379 Md. 224, 841 A.2d 339 (2004). Petitioner presents one question for our review:
"Was [the Circuit Court] legally correct in determining that [petitioner's] administrative remedies were exhausted following the decision of the Maryland State Board of Education rather than after judicial review as provided in Sections 10-222 and 10-223 of the State Government Article, so as to start the statute of limitations running on his tort claim for wrongful discharge on the earlier date?" [Alterations added.]We hold that the State Board's May 28, 1998 decision affirming petitioner's termination from his employment with HCPSS was the final decision of the administrative body and constituted an exhaustion of petitioner's administrative remedies and, as such, he was free to have his separate action in tort alleging wrongful termination adjudicated at least by that time, and perhaps could, as we note infra, have filed it even sooner subject to the separate action being stayed during the administrative proceedings.4 Therefore, the threeyear statute of limitations on this claim, as provided under § 5-101 of the Courts and Judicial Proceedings Article, began to run no later than May 28, 1998.5 Petitioner's action of waiting to file a separate action in tort until February 8, 2002, more than three years after the State Board's final decision, was thus barred by the statute of limitations. I. Facts
1. The parties, in their briefs, refer to the County Board and the HCPSS as if they are separate legal entities. We shall, accordingly, also sometimes use that terminology. 2. We denied petitioner's Petition for Writ of Certiorari on this original claim on October 13, 2000. Arroyo v. State Board of Ed., 361 Md. 231, 760 A.2d 1106 (2000). 3. Howard County was dismissed from the lawsuit on May 10, 2002. 4. In this case we do not have to determine, and do not, whether a litigant must file his or her independent judicial action during the course of the administrative proceeding in order to toll the running of limitations. 5. We do not need to resolve whether the limitations period was actually running during the period when his administrative action was proceeding. Under our cases, it appears that the primary jurisdiction of an agency such as the Board does not actually prohibit the filing of an independent judicial action, only its adjudication prior to the exhaustion of the administrative remedy. See cases infra. In the present case it is not necessary to answer that question because more than the statutory period of limitations passed subsequent to the final administrative determination. 6. Petitioner's continued absence was claimed to be due to several successive elective surgeries that petitioner underwent, surgeries that caused him to be unable to return to work. They included carpal tunnel surgery, foot surgery and ulnar nerve surgery. 7. Md.Code (1978, 2001 Repl. Vol), § 6-203(a) of the Education Article provides that "[f]or all proceedings before a county board under... [§ ] 6-202 ... of this article, the county board may have the proceedings heard first by a hearing examiner." 8. Such an action by the County Board, if true, would be a violation of Md.Code (1991, 1999 Repl. Vol), § 9-1105 of the Labor and Employment Article, which states that "[a]n employer may not discharge a covered employee from employment solely because the covered employee files a claim for compensation under this title." See also Ewing v. Koppers Co.,312 Md. 45, 537 A.2d 1173 (1988) (private cause of action existed when employee discharged solely because that employee filed a workers' compensation claim because such an action by the employer contravened the clear mandate of public policy). 9. In Board of Education of Anne Arundel County v. Barbano,45 Md.App. 27, 29, 411 A.2d 124, 125 (1980), the Court of Special Appeals succinctly explained the process by which a teacher, or, for that matter, any educational employee named in § 6-202(a), can be dismissed:
"The procedure for the dismissal is set forth in Ed. Art., § 6-202. Where the teacher has tenure, the `charges' are preferred by the county superintendent in the form of a recommendation to the county board that the teacher be dismissed for cause. Upon the proper notice, the board must hold a hearing. The practice has evolved that requires the superintendent to substantiate the cause asserted to support his recommendation. Although it is the board that makes the decision whether or not to terminate, because the teacher's contract is with it, in reality the board acts in the manner of an impartial tribunal judging the charges made by one of its employees (the superintendent) against another of its employees (the teacher) and the latter's defense to those charges." 10. See Md.Code (1978, 2001 Repl. Vol), § 2-205(e)(3) of the Education Article, which states that "[t]he decision of the [State] Board is final." See also Md.Code (1984, 1999 Repl.Vol., 2003 Supp.), § 10-221 of the State Government Article, entitled "Final decisions and orders," which states, in pertinent part:
"(a) Form.—A final decision or order in a contested case that is adverse to a party shall be in writing or stated on the record. (b) Contents.—(1) A final decision or order in a contested case, including a remand of a proposed decision, shall contain separate statements of: (i) the findings of fact; (ii) the conclusions of law; and (iii) the order. (2) A written statement of appeal rights shall be included with the decision." The ALJ's "Findings of Fact and Conclusions of Law," which was adopted by the State Board in its affirmance of the decision by the County Board, contains all the separate statements required by § 10-221 of the State Government Article. 11. The "Administrative Procedure Act" can be found at Md.Code (1984, 1999 Repl.Vol., 2003 Supp.), §§ 10-101 et seq. of the State Government Article. 12. Section 10-222(h) thus, contemplates that the decision to be judicially reviewed is a "final" administrative decision. 13. Md.Code (1973, 1998 Repl.Vol.), § 5-101 of the Courts and Judicial Proceedings Article, states that "[a] civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced." 14. Md.Code (1984, 1999 Repl.Vol.), § 10-222(a) of the State Government Article allows for "a party who is aggrieved by the final decision in a contested case" to seek judicial review of the decision. 15. That case was subsequently appealed to this Court and the decision of the Court of Special Appeals affirmed. See Bell Atlantic of Maryland, Inc. v. Intercom Systems Corp., supra. 16. This Court explained, in Maryland Commission on Human Relations v. Baltimore Gas & Electric Co.,296 Md. 46, 56, 459 A.2d 205, 211 (1983), that "ordinarily the action of an administrative agency, like the order of a court, is final if it determines or concludes the rights of the parties, or if it denies the parties means of further prosecuting or defending their rights and interests in the subject matter in proceedings before the agency, thus leaving nothing further for the agency to do" (emphasis added). In the case sub judice, § 6-202 of the Education Article provides for no further administrative appeal beyond that of the State Board, as the "decision of the Board is final." Section 2-205(e)(3) of the Education Article. 17. Given that this court and other courts have recognized that independent judicial actions can be filed, even though required not to be resolved, prior to the exhaustion of administrative remedies, it may be that limitations runs throughout the period of the administrative proceeding (and there are jurisdictions that have so held). In this case, however, it is not necessary to resolve that issue. 18. There were no relevant issues in this case regarding motions before the Board that would have extended finality. 19. Because we hold that petitioner's injury "accrued" no later than May 28, 1998, the date of the State Board decision, any argument by petitioner that the statute of limitations on his wrongful termination claim did not begin to run until after judicial review of his administrative claim, or possibly after his appeal to the Court of Special Appeals, because he was not aware until that time that he was finally terminated, is, in effect, asking for "equitable tolling" of the statute of limitations. As we stated in Hecht v. Resolution Trust Corporation, supra, "[w]e have long maintained a rule of strict construction concerning the tolling of the statute of limitations. Absent legislative creation of an exception to the statute of limitations, we will not allow any `implied and equitable exception to be engrafted upon it.'" Hecht, 333 Md. at 333, 635 A.2d at 399 (1994) (quoting Booth Glass Co. v. Huntingfield Corp.,304 Md. 615, 623, 500 A.2d 641, 645 (1985)) (emphasis added). As the Maryland Legislature has not provided an exception applicable in this case, allowing for the tolling of the statute of limitations through the judicial review of administrative decisions, we do not find that there was a tolling of the statute of limitations for petitioner's separate wrongful termination claim through judicial review of the State Board decision.
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