Gazunis v. Foster

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Gazunis v. Foster, No. 120, September Term, 2006 HEADNOTE: LABOR AND EMPLOYMENT LA W COLLECTIVE BARGAINING AGREEMENTS ENFORCE MENT EX HAUSTION OF REME DIES DISMISSAL E mployees subject to collective bargaining agreements must exhaust the remedies provided for by the agreement before their claims can be adjudicated in court. Trial courts may stay the claims pending arbitration, but m ay not proceed with adjudication of the claims until the employees have exhausted their contractual remedies. If an emplo yee chooses to waive h is or her right to arbitration under the c ollective barg aining agre ement, the e mployer is entitled to close that grievance, unless the agreement provides otherwise. If the employee later requests to revive arbitration after the time limits have passed, the employer is not obligated to proceed w ith arbitratio n. In the Cir cuit C ourt for M ontg ome ry County No. 246150 IN THE COURT OF APPEALS OF MARYLAND No. 120 September Term, 2006 ____________________________________ CAROL GAZUNIS, ET. AL v. AMELIA R. FOSTER, ET. VIR. ___________________________________ Bell, C.J. Raker *Cathell Harrell Battaglia Greene Wilner, A lan M. (R etired, Spec ially Assigned), JJ. ____________________________________ Opinion by Greene, J. ____________________________________ Filed: August 1, 2007 *Cathell, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. This matter arises from a civil action filed in the Circuit Court for Montgom ery County by Amelia Foster and her husband, David Foster, against Carol Gazunis and the Montgom ery Coun ty Board of Educ ation ( the Board ). 1 Ms. Foster brought a claim for defamation against Ms. Gazunis and claims for wrongful demotion, termination and breach of contract against the Board. Mr. and Mrs. Foster sought damages for loss of consortium from b oth M s. Gazu nis and the Bo ard. Petitioners as k us to determine whether the Circuit Court committed reversible error by permitting hearsay testimony to establish the pub lication element of M s. Foster s defamation claim. Both Petitioners and Respondents ask us to decide whether Ms. Foster failed to exhaust her contractual remedies under the c ollective bargaining agreem ent before the resolution of the issues in the Circuit Court, and, if so, whether the Circuit Court erred in reaching those issues. In addition, they ask us to examine whether the Board was obligated to arbitrate Ms. Foster s grievance after she waived arbitration and later sough t to revive her request for arbitration. The parties disagree as to whether the trial court erred by granting Petitioners motion to alter or amend the verdict, thereby absolving Carol G azunis of liability, after the jury returned a verdict in favor of Ms. Foster on the claim of defamation. Lastly, Petitioners and Respondents request that we analyze whether the Board was entitled to immunity pursuant to Md. Code (1974, 2006 Repl. Vol.), § 5-518(b) of the Courts and 1 Throughout this opinion, we shall so metimes re fer to Carol Gazun is and the Board as Pet itioners and to th e Foste rs as R espon dents. Judicial Proceedings Article,2 and, if so, whether the trial court was correct to enter judgment in the amount of $100,000 against the Board after the jury returned a special verdict for $285,000 against Ms. Gazunis or the Board.3 We shall hold that the hearsay issu e is not prop erly before this C ourt. In addition, we shall hold that Ms. Foster voluntarily waived her right to arbitration and that the Board was under no obligatio n to revive the arbitration proceedings after the waiver and after the time limits had passed. Thus, Ms. Foster had to exhaust her contractual remedies before she was entitled to adjudica te her claims for wron gful dem otion, termina tion and bre ach of co ntract. Therefore, the Circuit Court erred in allowing the jury to determ ine those issu es. We sh all therefore reverse the judgment of the intermed iate appellate c ourt. In additio n, we sha ll hold that the intermediate appellate court erred in not reaching the other issues that the parties presented to it on appeal and shall remand the case to that court for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND We adopt the underlying facts as set forth by the Court of Special A ppeals in its 2 Section 5-518 (b), entitled Claims for more than $100,000, states: A county board of education, described under Title 4, Subtitle 1 of the Education Article, may raise the defense of sovereign immunity to any amount claimed above the limit of its insurance policy, or, if self-insured or a member of a pool described under § 4-105(c)(1)(ii) of the Education Article, above $100,000. 3 The verdict shee t directed the ju ry to determine , in the disjunc tive, the amo unt of damages it was awarding in favor of Ms. Foster. Neither party has raised the issue of whether the verdict sheet was inco rrectly written. Therefore, the issue is not properly before us. -2- unreported opinion. The court stated: Since she began working for the Board in 1987, Am[elia] Foster worked her w ay up from school bu s driver to User Support Specialist I. In th at position, she was resp onsible for all of the computers at Albert E instein High School (Einstein), and earned an ann ual salar y of $60 ,500. By September 2002, she had been in that job for five years. Foster repo rted directly to the Einstein principal, Jani[s] Mills. The computers and networks within the entire school system were supervised by the Board s Office of Global Access Technology (OGAT). Carol Gazunis was a supervisor in OGAT and classified as a User Support Specialist II. Her son Chris Gazunis also worked at OGAT, performing on-site computer services for county schools. In June 200 2, a new s erver arrived at Einstein. Foster requested assistance from OGAT in setting it up. OGAT sent John Manchester and Chris Gazunis out to the job. While they were working, Foster noticed that occasionally they would shut the server down by pu shing the p ower bu tton, as oppo sed to typing in the word Down, as Foster believed was the proper way. When Foster pointed this out to them, they allegedly told her they co uld n ot w ait fo r it to s hut d own prop erly. By Thurs day, September 22, 2002, there had been recurrent problems with the server. On that d ay, principal M ills called a staff m eeting. Carol Gazunis explained that the server had gone do wn as a re sult of a power surge. After the meeting, Foster returned to Mills office to advise her in private that she believed the server went down because Manchester and Chris Gazun is had been shutting it down improperly. Mills asked Carol Gazun is to return to h er office an d then ask ed Foster to repeat that allegation. Gazunis became upset and responded that using the power button to shut down the server wo uld not hurt anything. Shortly after this encounter, Gazu nis came to Foster s office. She was very angry and threatened Foster that she w ould have her fired for complaining to Mills abo ut her son a nd wou ld ruin Foster s reputation by telling everyone at OGAT that the network was a big mess. According to Foster, Gazunis said, One of us is g oing do wn, an d it s not going t o be m e. -3- The next day, Foster s password had been changed without her know ledge, app arently by Chris Gazunis. She was later given a new password that did not allow her to access any of her applications or files. On Mo nday, September 30, stud ents and staff had m ore log-in problems . That afternoon, Mills called Foster into her office. According to Foster, Mills was upset and told her that Carol Gazunis had told her that Foster purposefully sabotaged the computer network. Foster denied doing so. Shortly after that conversation, Mills relieved Foster of all her computer responsibilities, instructing her to turn in her keys and report to the office to do [X]eroxing. Foster continued in those duties for approximately six weeks. On November 11, she was placed on administrative leave. O n January 2, 2003, she was demoted[4] from SS-1 Grade 20 to a Special Education Instructor, Grade 11, at a salary of $20,000 (a salary reduction of $40,500), a position in which she escorted handicapped students to the restroom. Foster took extended sick leave, but was released for duty in June 2003. She did not receive a work assignment for the start of the 2 003 sc hool yea r by Septe mber. She found other employment, paying $50,00 0 per year. [5] Ms. Foster timely filed two grievances relating to her demotion. She also began the 4 The Board explains, in its brief, that it conducted an investigation to determine what was causing the log-in problems, shortly after Ms. Mills relieved Ms. Foster of her regular duties. The Board explains further that it determined that Ms. F oster was in volved in causing the problems, and gave her an opportunity to explain her actions to its investigator. The Board states that, as a re sult of the inv estigation, it concluded that Ms. Foster was involved in the inap propria te and im proper use of the com puter syste m. On January 2, 2003, the Board demoted Ms. Foster. The Chief Operating Officer o f the Mo ntgomery C ounty Public Schools informe d Ms. Foster, in writing, of the Board s decision to demote he r. The letter explained that Ms. Foster was bein g repriman ded and d emoted b ecause the investigation into her conduct provided compelling evidence that she knowingly disabled the computer system. 5 According to Petitioners, Ms. Foster w as eventually notified of her assignment for the 2003-2004 school year, but declined the assignment as she had taken a job outside of the school system. T he Board, thereafter, notified Ms. Foster that her decision not to resume working for the Board was considered a resignation. -4- administrative review process in accordance with the policies and regulations of the Montgom ery County Public Schools and the union contract between her employer, the Board, and the Montgomery County Council of Supporting Services Employees (MCCSSE). As explained in more detail below, the con tractual g rievanc e proce ss invo lves fo ur steps . The first three steps involve the employee filing complaints with various individuals and the fourth step consists of arbitration of the grievance. The employee is entitled to stop the process at any point, or may proceed to subseque nt steps if unsatisfied with the outcome of the prev ious step . In this case , the unio n pursu ed M s. Foster s action through step three and initiated arbitration under the fourth step at her request. Ms. Foster subsequently withdrew her request for arbitration, and, on Septem ber 23, 2003, she an d her husband, D avid Foster, filed a civil action in th e Circuit Court for Montgomery County against Petitioners. Ms. Foster alleged defamation (Count 1) against Ms. Gazunis, and wrongful demotion and termination (Count 2), and breach of contract (Count 4) against the Board. Mr. and Mrs. Foster alleged loss of consortium (Count 3) against Ms. Gazunis and the Board.6 After discovery, Petitioners filed a motion for summary judgment on all counts. One 6 These counts, as listed, appeared in Respondents second amended complaint, filed on June 29, 2 004. In their original com plaint, Ms. Foster alleged defamation (Count 1), and wrongful discharge (Count 2), and Mr. and Mrs. Foster alleged loss of consortium (Count 3). Respondents also filed an amended complaint on January 20, 2004, in which Ms. Foster alleged defamation (Co unt 1), and wrongful demotion and termination (Count 2) and Mr. and Mrs. Foster alleged loss of con sortium (Count 3). Ms. Foster did not add the breach of contract claim until she and her husba nd filed the ir second am ended co mplaint. -5- of the contentions in their motion was that Ms. Foster had failed to exhaust the remedies provided for in the collective ba rgaining ag reement a nd should therefore be precluded from bringing claims for wrongful demotion, termination and breach of contract. On October 7, 2003, the Circuit Court denied the motion for summary judgment as to the defamation count and stayed the remaining counts, pending completion of arbitration as required by the collective bargaining agreement. Ms. Foster thereafter asked the Board, in writing, to revive the arbitration proceedings for the grievance that she had previously withdrawn. The Board responded by sending a letter to the union representative advising the representative that Ms. Foster had voluntarily requested that her grievance be withdrawn and that, based on her reques t, the Bo ard can celed th e arbitra tion. Prior to the start of tr ial, Resp onden ts filed a Mo tion for Cons olidatio n, asking the court to consolidate for trial all four counts on the groun d that the B oard wo uld not agre e to arbitration. Petitioners filed a motion titled Opposition to Plaintiffs Motion for Consolidation/Defendants Motion to Lift Stay and for Summary Judgment, requesting dismissal of the wrongful demotion, termination and breach of contract claims, on the ground that Ms. Foster had failed to exhaust the remedies provided in the collective bargaining agreeme nt. 7 The court granted Respondents motion and ordered consolidation of all four 7 Petitioners did not raise th e question o f failure to invoke and exhau st statutory administrative remedies in the trial court. There appears to be a parallel statutory administrative remedy under Md. Code (1978, 2006 Repl. Vol.), § 4-205(c) of the Education Article. See Bd. of Educ. for Dorchester County v. Hubbard, 305 Md. 774, 789, 506 A.2d 625, 632 (1986) (applying § 4-205 of the Education Article as a basis for review of the (contin ued...) -6- counts for trial. Prior to any testimony in the case, Petitioners counsel made an oral motion in limine to exclude the anticipated testimony of Ms. Foster pertaining to the defamation claim on the gro und that the testimony wa s inadmissa ble hearsay. The Circuit Court denied the motion. Petitioners moved fo r judgment on C ounts 1 (Defam ation) and 4 (Breach of Contract) at the close of Respondents case and again at the close of all the evidence.8 The court denied the mo tion. The jury returned a verdict in favor of Ms. Foster on the defamation and wron gful de motion claims a nd in fa vor of Mr. an d Mrs . Foster on their loss of consortium claim.9 The jury awarded Ms. Foster $35,000 for past loss of earnings, $200,000 in non-economic damages for emotional distress, and a warded the Fosters $ 50,000 o n their loss of consortium claim, bringing the total damage verdict to $285,000. The verdict sheet appeared as follows: 7 (...continued) decisions of the cou nty superintend ent of scho ols); Compare Arroyo v. Bd. of Educ. of Howa rd Coun ty, 381 Md. 646, 655-57, 851 A.2d 576, 581-83 (2004) (applying § 6-202 of the Education Article as a basis to review the decisions of the county superintendent of schools). As neither side argued whether or how that remedy could have been utilized, we do not address Ms. Foster s failure to invoke and exhaust her statutory administrative remed ies. 8 The Board orally withdrew the motion for judgment as to Count 4. 9 The jury determined that Ms. Foster was not wrongfully terminated. In their second amended complaint, Respondents sued for breach of contract (Count 4) on the grounds that Ms. Foster was terminated for reasons other than proper cause. In answering that Ms. Foster was not w rongfully con structively term inate d, the jury, in effect, de cided Co unt 4 in favor of the Board. -7- (1) On the claim for Defamation, for whom do you find? Plaintiff, Amelia Foster X Defendant, Carol Gazunis ____ If you have found in favor of the Defendant, proceed to Question 3. If you have found in favor of the Plaintiff, proceed to Question 2. (2) Do you find that Defendant, Carol Gazunis, had actual knowledge of the falsity of the defama tory statement tha t she made to Janis Mills regarding Am elia Foster? Yes ______ No X (3) Do you find tha t the Mon tgomery Co unty Board o f Educa tion wrongfully demo ted Amelia Foster? Yes X No _______ (4) Do you find that the Montgomery County Board of Education wrongfully constructively terminated A melia Foster? Yes _______ No X If you have found for Plaintiff on any of Questions 1, 3, or 4, proceed to Question 5. (5) What amount of damages do you award Amelia Foster against the Montgomery County Board of Education or Carol Gazunis[?] Past Medical Expenses $0 Past Loss of Earnings $35,000 Non-Economic Damages $200,000 (Emotional Distress) (6) What amount of damages do you award to Amelia Foster and David Foster against the Mo ntgomery C ounty Board of Education or Carol Gazunis for Loss of Consortium? $50,000 On March 10, Petitioners filed a motion to alter or amend the verdict, to the extent that -8- it exceeded the $100,000 statutory cap on damage claims, pursuant to Md. Code (1974, 2006 Repl. Vol.), § 5-518(b) of the Courts and Judicial Proceedings Article. Petitioners also argued, in that motion, that Ms. Gazunis was not personally liable for damages resulting from her tortious acts, because § 5-518(e) o f the Cou rts and Judic ial Proceed ings Article 10 negated her liability. The court held a hearing on the motion on April 6, 2005. On April 7,11 the court reduced the damage award to $100,000 against the Board alone, explaining that, as a matter of law, § 5-518(e) of the Courts and Judicial Pro ceedings Article nega ted Carol Gazu nis s personal liability. On April 15, 2005, the trial court entere d its judgment against the B oard in favor of Amelia Foster for $85,750 and in favor of Amelia and David Foster for $14,250. Respondents filed a motion to alter or amend the judgment, which the court denied. Thereafter, they appealed to the Court of Special Appeals, arguing that the trial court had erroneou sly granted a JNOV12 in favor of Carol Gazunis and that the court erred in finding 10 Md. Code (1974, 2006 Repl. Vol.) § 5-518 (e), entitled Employees, states: A county board employee acting within the scope of employme nt, without m alice and gross negligence, is not personally liable for damages resulting from a tortious act or omission for whic h a limitation of liability is provided for the county board under subsection (b) of this section, including damages that exceed the limitation on the cou nty board s liabi lity. 11 The court entered this order on April 15, 2005. 12 The court nega ted Ms. G azunis s liability [u]pon consideration of Defendant s Motion to Alter or Amend Judgment to set aside Statutory Limitation on Damages and supporting Memorandum. It never stated, as Respondents suggest, that it was granting a (contin ued...) -9- that the Board was entitled to the immunity set forth in § 5-518 (b), which capped the damages at $100,000. Petitioners cross-a ppealed, arguing that the trial cou rt erred in permitting hearsay testimony that provided an essential element of the defamation claim and that the court erred in permitting the jury to consider the wrongful demotion claim when Ms. Foster had failed to exhaust the remedies provided in the collective bargaining agreeme nt. The Court of Special Appeals addressed only the issue of whether Ms. Foster had exhausted her remedies under the collective bargaining agreement and concluded that even though she waived her right to arbitrate, the wrongful demotion and breach of contract claims may be arbitrable if the Board did not waive its righ t to arbitrate. Th e intermed iate appellate court vacated the Circu it Court s judgment and remanded the case to that court for a determ ination o f whe ther the B oard w aived its right to a rbitrate. On Novemb er 21, 2006, Petitione rs filed a petition for writ of certiorari with this Court, 13 and on December 4, 2006, Respondents filed both a petition for writ of certiorari, 14 12 (...continued) JNOV in favor of M s. Gazunis. 13 Petitioners presented the following questions in their petition for w rit of certiorari: 1. Does an employer subject to a collective bargaining agreement have an obligation to arb itrate an employee s grievance where the employee withdrew her request for arbitration and later sought to revive her request after the time to invoke arbitration had expired? 2. Is an employee who is subject to a collective bargaining agreement required to exhaust contractual and administrative (contin ued...) -10- and an answer to Ms. Gazunis and the Board s petition for writ of certiorari. On December 18, 2006, Petitioners filed an answer to the Fosters petition for writ of certiorari. We granted both petition s for writ of certiorari. 15 Gazun is v. Foster, 396 Md. 524, 914 A.2d 768 (2007). DISCUSSION Hearsay Testimony and the Claim for Defamation We note first that the issue of whether the trial court erred in permitting hearsay testimony to establish the publication element o f defam ation is not pro perly before th is Court. 13 (...continued) remedies set forth in the agreement prior to brin ging a law suit on a claim that is covere d by the agree ment? 14 Respon dents presented the following questions in their petition f or writ of c ertiorari: 1. Did the lower court err in granting judgment notwithstanding the verdict in favor of Carol Gazunis pursuant to § 5-518 (e) Cts. & Jud. Proc. w here the jury s verdict was in favor of the Fosters on the claim of defamation? 2. Did the lower cou rt err in its finding that the De fendant, Board of Education of Montgom ery County was entitled to the immunity provided by § 5-518 (b) Cts. & Jud. Proc. Article, Annotated Code of Maryland because it s wrongful demotion of Amelia Foster was contractual and not tortious. 3. Did the lower c ourt err in entering judgment for $100,000.00 against the Montgomery County Board of Education when the verdict of the jury was for $285,000.00? 15 For purposes of these proceedings, we are treating Carol Gazunis and the Board as Petitioners and Amelia and David Foster as Respondents, because Carol Gazunis and the Board filed their petition first, and the Fosters filed their petition second. -11- Petitioners did not raise the hearsay issue in their petition for writ of certiorari - as stated supra, they asked only that this Court address whether an employer must arbitrate an employee s grievance after the em ployee has waived arbitration and the time limits have passed and also whether an employee who is subject to a collective bargaining agreement must exhaust h is or her remedies under that agreem ent before proceedin g with a law suit in court. Petitioners first raised the hearsay issue in their answer to Respondents petition for writ of certiorari. They stated: This Court should deny the petition for w rit of certiorari th at is based on issues not decided by the Court of Special Appeals. Alte rnatively, if this Cour t grants certiorari, it should rev iew all of the issues presented to the Court of Special Appeals. More specifically, through the vehicle of an answer to the Fosters petition for writ of certiorari, Carol Gazun is and the Board asked us to decide whether the trial court erre d in permitting hearsay testimony to prove the publication element of defamation.16 Maryland Rule 8-13 1(b) provid es, in pertinen t part: Unless otherwise provided by the order granting the writ of certiorari, in review ing a deci sion rend ered by the Court of Special Appeals or by a circuit court acting in an appellate capacity, the Court of Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition and that has been preserved for review by the Court of Appea ls. 16 Petitioners, in their answer, also asked us to address whether the trial court erred in sending the wron gful dem otion claim to the jury even though Ms. Foster failed to first arbitrate her claims in accordance with the collective bargaining agreement. This issue is properly before this Court because Petitioners also raised the collective bargaining agreement issue in their p etition for w rit of certiorari. -12- See also Wyn n v. State, 351 M d. 307, 320, 718 A.2d 58 8, 594 (19 97) (explain ing that this Court generally does not address any issue that was not raised in a petition for writ of certiora ri or cros s-petition granted by the Co urt). Moreover, Carol Gazunis and the Board failed to address the hearsay issue in their brief filed in this Co urt. Petitioners a ddressed o nly the collective b argaining iss ue in their brief, arguing: An employer subject to a collective bargaining agreement has no obligation to arbitrate an employee s grievance where the employee withdrew her request for arbitration and later sought to revive her request after the time to invoke arbitration had expired. Respondents, in their brief, addressed the collective bargaining issue and also addressed the issues originally presen ted in their petitio n for writ o f certiorari. Petitio ners, in their rep ly brief, then discussed the hearsay issue. In accordance with the de cisional law of this Co urt, a reply brief shou ld ordinarily be co nfined to re sponding to the points a nd issues ra ised in the appelle e s brief . Ritchie v. Donn elly, 324 M d. 344, 3 75, 597 A.2d 4 32, 447 (1991 ). See also Straus s v. Strau ss, 101 Md.App. 490, 509 n.4, 647 A.2d 818, 828 n.4 (1994) (stating that the scope of a reply brief is limited to the points raised in appellee s brief, which, in turn, address[es] the issues originally raised by appellant. . . . A reply brief cannot be used as a tool to inject new argum ents ); Fed. Land Bank v. Esham, 43 Md. App. 446, 459, 406 A.2d 928, 936 (1979) (explaining that [t]he function of a reply brief is limited. The appellant has the opportun ity and duty to us e the open ing salvo o f his original brief to state and a rgue clearly -13- each point of his appeal. . . . the reply brief must be limited to responding to the points and issues raised in the app ellee s b rief ). Accordingly, appellate courts ordinarily do not consider issues that are raised for the f irst time in a party s re ply brief. See Jone s v. State, 379 Md. 704, 71 3, 843 A.2d 778, 783 (2004) (explaining that the State did not raise the argument in its opening brief on appeal, subjecting it to the rule that an appellate cou rt ordinarily will not consider an issue raised for the first time in a reply brief ). W e note that, notwithstanding the general rule, appellate courts have the discretion to hear such issues.17 In this case, after Petitioners raised the hearsay issue in their reply brief, Respon dents filed a motion to strike the hearsay issue from this case. Petitioners filed an opposition to the motion. This Co urt deferred action on th e motion p ending or al argume nt. At oral arg ument, both parties addressed the procedural question of whether this Court should reach the hearsay issue but did not address the merits of the hearsay argument. As a result, if we decide the hearsay issue on the merits, we w ill have heard only Petitioners arguments on the issue. While this Court retains the discretion to hear issues raised only in a reply brief, we see no reason to reach the me rits of the hearsa y issue an d unne cessarily p rejudice Respo ndents . The hearsay issue was properly raised in the Court of Special Appeals and both parties briefed the issue before that court. Because of the way the intermediate appe llate court decided the case, it did not address that issue, as well as several others. 17 W e therefore See Fearnow v. Chesapeake & Potomac Tel. Co., 342 Md. 363, 384, 676 A.2d 65, 75 (1996) (explaining that appellate courts retain the discretion to consider arguments raised for the first time in a reply brief but that they do not abuse their discretion in refusing to do so). -14- remand the case to that court for consideration of the issues18 not addressed in its opinion.19 18 The Fosters presented the following que stions in their brief to the Court of Special Appeals: 1. Did the lower court err in granting judgment notwithstanding the verdict in favor of Carol Gazunis against Amelia R. Foster and David Foster pursuant to § 5-518(e) [of the Courts and Judicial Proceedings Article] where the jury s verdict was in favor of the Fosters on the claim of defamation[?] 2. Did the lower co urt err in its findin g that the D efendan t, Board of Education of Montgomery County wa s entitled to immunity provided by § 5-518(b) [of the Courts and Judicial Proceedings Article] because its wrongf ul demotio n of Am elia Foster was contractual and not tortious[?] Carol Gazunis and the Board presented the following questions in their brief to the Court of Special Appeals: 1. Did the [C]ircuit [C]ourt commit reversible error by permitting hearsay testimony to establish an essential element of the defamation claim? 2. Did the [C ]ircuit [C]ourt er r in permitting the jury to consider the wrongf ul demotio n claim where Ms. Foster failed to exhaust her administrative remedies? 3. Did the [C]ircuit [C ]ourt correctly limit the judgment to the statutory cap of $100,000.00 and enter judgment solely against the Board? In addressing these issues, the intermediate appellate court will also have to address various sub-issues. For ex ample , in determining the propriety of the def amation verdict, the court will need to decide whether the record supports a finding that Ms. Gazunis acted within the scope of her employment, without malice and gross negligence, and whether the court or jury should have ma de that d etermin ation in o rder to a bsolve Ms. G azunis of liabilit y, in accordance with Md. Code (1974, 2006 Repl. Vol.), § 5-518 (e) of the Courts and Judicial Proceed ings Article. M oreover, in determining wh ether the trial court was corre ct to limit (contin ued...) -15- Acc ordingly, we gran t Respon dents mo tion to strike the hearsay issue ra ised in this C ourt. Because we are remanding the case to the Court of Special Appeals as to the defamation issue, we need not address the parties issues con cerning the Circuit Co urt s negation of Carol G azunis s liability 20 in accordance w ith Md. Code (1974, 2006 R epl. Vol.), 18 (...continued) the Board s lia bility to $100,000, the Court of Special Appeals also will have to determine, if it concludes that (1974, 2006 Repl. Vol.), § 5-518 (b) of the Courts and Judicial Proceedings Article applies, whether the Board was self-insured or a member of a pool described under Md. Code (1978, 2006 Repl. Vol.), § 4-105(c)(1)(ii) of the Education Article, such th at $100 ,000 w as not a n appro priate lim itation. See Md. Code (1974, 2006 Repl. Vol.), § 5-518 (b) of the Courts and Judicial Proceedings Article (explaining that the cap on damages for sovereign immunity can be greater than $100,000 for Boards that are self-insured or mem bers of certain pools). 19 Our decision to remand to the intermediate appellate court for consideration of undecided issues is consiste nt with our prio r decisio ns. See, e.g. Laznovsky v. Laznovsky, 357 Md. 586, 621-22, 745 A.2 d 1054, 1 073 (200 0) (stating that [i]t is necessary to remand the case to th e Court of Special A ppeals for a considera tion of the issu es . . . . presented to it, but not addressed in its opinion ); Moodie v. Santoni, 292 Md. 582, 441 A.2d 323 (1982) (reversing the judgment of the Court of Special Appeals and remanding to that court for the consideration of undecided issues). Similarly, in Wagner v. Doehring, 315 Md. 97, 108, 553 A.2d 684, 689 (1989), we stated: Because of the way it decided the case, the Court of Special Appea ls did not address the issue of whether the trial court was correct in holding that as a matter of law the Wagners conduct was not wan ton or willfu l although that issue had been raised before it. We remand to that court for it to determine that issue, and any other issue pro perly before the Court of Special Appeals. 20 As explained supra, after the jury returned the verdict against Petitioners, they filed a motion to a lter or amen d the verdic t to the extent that it exceeded the $100 ,000 statutory cap on damages. In response, the court altered the jury s verdict from $285,000 against Carol Gazun is or the Board, and reduced it to $100,000 and entered judgmen t against the Board (contin ued...) -16- §5-518(e) of the Courts and Judicial Proceedings Article. Similarly, we need not reach the issue of whe ther the Circuit Court was correct to limit the Board s damages to $100,000, pursuant to Md. Cod e (1974, 2006 R epl. Vol.), §5-518(b) of the Courts and Judicial Proceedings Article.21 The need to address the se issues w ill depend u pon the inte rmediate appellate court s decision as to the hearsay issue.22 The Collective Bargaining Agreement and the Claims for Wrongful Demotion and Termination and Breach of Contract The collective bargaining agreement, in this case, begins with an informal grievance procedure and then sets forth four specific steps of that process. The ag reement e xists between the Mo ntgomery C ounty Counc il of Supporting Services Employees and the Board, 20 (...continued) alone, explaining that § 5-518(e) of the Courts and Judicial Proceedings Article negated Carol Gazunis s personal liability. Petitioners contend that the trial cou rt had the au thority to nega te Caro l Gazu nis s liab ility in this m anner. R espon dents d isagree . 21 Respon dents aver that the trial court erred in finding tha t the Board was entitled to the protecti on of M d. Cod e (1974 , 2006 R epl. Vol.), §5-518(b) of the Courts and Judicial Proceedings Article, because the underlying claims were contractual, and the statute applies to torts. Petitioners argue, however, that the c ourt was correct to apply §5-518(b) because the wrongful demotion claim is tortious. 22 The cause of action for defamation does not appear to be intertwined with the causes of action for wrongful demotion, termination and breach of contract. In addition, the joint claim for loss o f con sorti um m ay have derived from a wrongful demotion, termination, breach of contract and/or defamation. Because Ms. Foster failed to exhaust her contractual remedies as to wrongful demotion, termination an d breach of con tract, there can be no new trial on those claims. There may be a new trial for defamation or a claim for loss of consortium, stemm ing fro m the d efama tion. As such, Ms. Foster is not precluded from proceeding solely on those counts if the Court of Special A ppeals grants her an entirely new trial, or a n ew trial o nly as to da mage s. -17- for the ben efit of its employees. N either party disputes that Amelia Foster was covered by the agreement. The agreement defines grievance as a claim by one party that the other party has violated th[e] Agreement. The purpose of the agreement is to secure, at the lowest possible administrative level, equitable solutions to the problems which may occur in the ad ministra tion of th [e] Ag reeme nt. 23 The agreement explains that [a] suspension, demotion, discharge or other disciplinary action m ay only be ta ken ag ainst un it mem bers fo r prope r cause . It states, thereafter, that [n]o grievance shall be initiated more than fifteen (15) duty days after the cause has occurred or should have been discovered. In addition, [a] grievance shall be automatically waived and shall not be subject to further discussion or appeal if the grievant does not process it within any of the stated time limits. Such time limits may only be extended by mutual agreement between the parties. The agreement then explains that [a] covered unit member will first discuss his/her grievance with his/her immediate supervisor. Both parties will make efforts to solve the grievance at this informal level. The agreement then outlines the four-step procedure. 23 The agreement further explains that suspension, demotion and discharge will be handled in accordan ce with the procedu res of Sec tion C, wh ich states, in pe rtinent part: Written notice of charges with specifications will be given to the affected unit member at the time the disciplinary action is taken. Prior to acting upon a recommendation for discharge or suspension in excess of five (5) duty days, the deciding official shall offer the a ffected employee the opportunity to make a statement in his/her behalf personally or in writing. -18- Unde r the hea ding, Step One, it states: If the grievance cannot be solved at the inform al level, the un it member then submits the grievan ce to his/her a ppropriate administrato r in writing within fifteen (15) duty days after the grievance arises. If the appropriate administrator does not satisfy it within ten (10) duty days from receipt of the written grievance, the grievance may be processed to Step Two. Unde r the hea ding, Step Two, the agreement continues: If the grievant is not satisfied with the disposition in Step One, he/she may file his/her grievance in writing to the MCCSSE within five (5) duty days. The MC CSSE, w ithin five (5) duty days from such filing, shall meet and counsel the grievant on the merits of the griev ance and if the Unio n deems it to be meritorious, forward the grievance to the deputy superintendent or appropriate associate su perintende nt. If the griev ance is referred within the tim e limits, the deputy superintendent or appropriate associate superintendent shall have f ive (5) duty days to res pond to the griev ant. Step Thre e, further add s, in pertinent p art: 1. If the grievant is not satisfied with the disposition in Step Two, he/she ma y again file his/her grievance in writing with the MCCSSE within five (5) duty days. Within five (5) du ty days from such filing, the Union shall meet and counsel the grievant and if the Unio n deems it to be meritorious, forward the grievance to the superintendent. If the grievance is referred within the time limits, the superintendent shall have ten (10) duty days to respo nd to the grie vant. Of m ost imp ortance to this ca se, Step Four-Arbitration, explains, in p ertinent part: 1. If the grievant is not satisfied with the disposition of the grievance made by the superinten dent, he/she may file it in writing with the MCCSSE within five (5) duty days for the Union s decision on whether or not the grievance shall be submitted to arbitration. -19- 2. Arbitration may be initiated by the grieving party by serving notice upon the other party requesting arbitration within fifteen (15) duty days . . . . The receiving party will acknowledge his/her agreement with the submission to arbitration statement by affixing his/her signature to the submission form within five (5) duty d ays and re turning the form to the gr ieving p arty. . . . 3. The grieving party may subm it the matter to arbitration within five (5) duty days of the return of the submission statement form. The superintendent and the president of MCCSSE will attempt to ag ree upon a mutually acc eptable arbitrator and obtain a commitment from said arbitrator to serve. * * * * Petitioners argue that the Board, even though it was subject to this collective bargaining agreement, was under no obligation to arbitrate Ms. Foster s grievances for wrongful demotion, termination and breach of contract after she withdrew her initial request for arbitratio n and her request to revive the a rbitration was not timel y. They expla in that, while Ms. Foster properly filed her grievance and invoked her right to arbitration under the agreement, she then v oluntarily withdrew her arbitration requ est. Petitioners contend th at, in so doing, Ms. Foster waived her right to continue with the grievance process provided by the colle ctive ba rgainin g agree ment b ecause the Bo ard clos ed the g rievanc e. Petitioners note that the Circuit Court recognized that Ms. Foster had failed to exhaust her contractual remedies and therefore stayed the counts for wrongful demotion and termination and breac h of contra ct. They conte nd, how ever, that the C ircuit Court f ailed to realize that Ms. Foster was no longer able to arbitrate her claims under the collective bargaining agreement because she had already waived her right to continue with the -20- contractual grievance process. Fu rthermore, according to P etitioners, because of the w aiver, Ms. Foster cou ld no long er proceed with arbitration under the time requ irements set f orth in the collective bargaining contract. They aver that the Circuit Court erred when it permitted Ms. Foster s wrongful demotion claim to be decided by the jury, and the Court of Special Appea ls erred in rem anding the case to the C ircuit Court on the issue of whether the Bo ard had waived its right to arbitrate. Petitioners rely primarily on Arroyo v. Bd. of Educ. of Howard Coun ty, 381 Md. 646, 661, 851 A.2d 576, 585 (2004), and Jenkins v. Wm. Schluderberg-T.J. Kurdle Co., 217 Md. 556, 561-62, 144 A.2d 88, 91 (1956), for the proposition that a plaintiff mu st exhaust a ll available rem edies befo re pursuing relief in cour t. Respon dents counter that there exists nothing in the collective bargaining agreement that mandate s that an em ployee avail him self or herself of the grievance procedure and furthermore that Step Fo ur provide s that arbitration is optional, not mandatory. They contend that Ms. Fos ter did not ha ve to follow through with arbitration because the collective bargaining agreement states explicitly that [i]f the grievant is not satisfied with the disposition of the grievance made by the superintendent, he/she may file it in w riting. . . . (Emphasis added ). They assert tha t if Ms. Fo ster was req uired to sub mit her claim to arbitration, the agreement would instead use the word must. Respondents also argue that Arroyo is not dispositive because Arroyo dealt with statutory administrative remedies and not remedies under a collective bargaining agreeme nt. They posit that Maryland law establishes that a plaintiff is not required to exhaust remedies -21- available under a grievance procedure contained in a collective bargaining agreeme nt in order to pursue a wrongful demotion or termination claim against an employer, citing Finch v. Holladay-Tyler Printing, Inc., 322 M d. 197, 5 86 A.2 d 1275 (1991). In addition, Respon dents contend that the Court of Special Appeals erred in failing to conclude that the Board waived its r ight to arbitrate when the B oard refused to arbitrate Ms. Foster s claim and after the Circuit Court stayed the wrongful demotion and termination and breach of contract claims. Exhaustion of Contractual Remedies under the Collective Bargaining Agreement We agree with Petitioners position and hold that when Ms. Foster waived arbitration, an integral part of the grievance process, she abandoned her claims for wrongful demotion, termination and breach of contract24 and therefore abandoned and failed to exhaust all of the contractual remedies provided for in the collective bargaining a greement. Once the Board refused to revive the arbitration proceedings, as it was entitled to do, the Circuit Court was obliged to dismiss the claims. Therefore, the Circuit Court erred in denying Ms. Gazunis and the Board s motion for summary judgment on those claims and in granting the Fosters motion to c onsolidate th ose claims f or trial. This Court outlined the rules governing the processing of grievances under collective bargaining agreements in Jenkin s, 217 Md. at 561-62, 144 A.2d at 91. We said: The general rule is that before an individual employee can 24 Ms. Foster did not need to submit to arbitration her claims for defamation and loss of con sortium becau se they w ere not c overed by the co llective b argainin g agree ment. -22- maintain a suit, he [or sh e] must show that he [or she] has exhausted his [or her] contractual remedies: This rule, which is analogous to the rule requiring the exhaustion of admin istrative reme dies as a condition preceden t to resorting to c ourts . . . is based on a practical approach to the myriad problems, complaints and grievances that arise under a collective ba rgaining ag reement. It m akes poss ible the settlement of such matters by a simple, expeditious and inexpensive procedure, and by persons who, generally, are intimately familiar therewith. . . . The use of these internal remedies for the adjustment of grievances is designed not only to promote settlement thereof but also to fo ster more harmonious emplo yee-emp loyer relatio ns. Cone v. Union Oil Co., 129 Cal. App. 2d 558, 564, 277 P. 2d 464, 468 (1954 ). Thus, if the employee refuses to take even the initial step of requesting the processing of the grievance, he [or she] will not be granted relief in the courts. In that case, Jenkins brought a grievance against her employer for wrongful discharge. Jenkins, 217 Md. at 558, 144 A.2d at 89. She requested that the union send h er claim to arbitration but it refused to do so. We explained that arbitration is an integral part of the system of self -governm ent. And the system is designed to aid management in its quest for effi cien cy, to assist union leadership in its participation in the enterprise, and to secure justice for the employees. It is a means of makin g collec tive barg aining w ork. . . . When it works fa irly well, it does not need the sanction of the law of contracts or the law of arbitration . It is only when the system breaks down comp letely that th e courts aid in th ese resp ects is inv oked. Jenkins, 217 Md. at 563-64, 144 A.2d at 92 (citations omitted). Even though Jenkins had not -23- exhausted all of her contractual remedies, we held that she was not barred from suing her employer for wrongful discharge because she tried to exhaust her remedies and the union acted arbitrarily and in a discriminatory manner in refusing to send her grievance to arbitratio n. Jenkin s, 217 Md. at 575-76, 144 A.2d at 99. In addition, in Del Costello v. Int l Bd. of Teamsters, 462 U.S. 151, 163, 103 S. Ct. 2281, 2290, 76 L. Ed. 2d 476, 488 (1983), the Supreme Court explained that [i]t has long been established that an individual em ployee may bring suit against his [or her] employer for breach of a co llective-b argainin g agree ment. . . . Ordinarily, howe ver, an em ployee is required to att emp t to ex haust any grievance or arbitration remedies provided in the collective-bargaining agreement. The Court went on to explain that only when the union representing the employee acts in a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair rep resentation, m ay the emplo yee bring his o r her claim to court notwithstanding the outcome or finality of the grievance or arbitration procee ding. Del Co stello, 462 U.S. at 164, 103 S. Ct. at 2290, 76 L. Ed. 2d at 488; see also Dearden v. Liberty Medi cal Ce nter, Inc ., 75 Md. App. 528, 531, 542 A.2d 383, 385 (1988) (holding that an employee cannot maintain a suit against an employer without first showing that he or she has exhausted the av ailable contractual remedies). Responden ts contend th at Finch, 322 M d. 197, 5 86 A.2 d 1275 (1991 ), overruled Jenkins, and that, there fore, Ms . Foster did n ot have to e xhaust he r remedie s before proceeding with the claims, that were subject to the collective barga ining agree ment, in cou rt. -24- We disagree. Instead, we interpret Finch as standing for the proposition that the exhaustion of remedies u nder a colle ctive barga ining agree ment is not required when the issues raised by the plaintiff s wrongful discharge claim are not dependent upon an interpretation of the collective bargaining agreement. In Finch, an emplo yee filed a wo rkers com pensation c laim due to a wo rkplace injury that r equired him to m iss four month s of w ork. Finch, 322 Md. at 198, 586 A.2d at 1276. When he returned to work, he learned that he was one of several workers who was slated to be laid off. Although Finch was covered by a collective bargaining agreement, he chose not to initiate a grievance pursuant to the agreement but instead filed an action for retaliatory discharge and loss of consortium. Finch claimed that his employer us ed a layoff p rocedure a s a pretext fo r firing him in retaliation for filing a workers comp ensatio n claim . Finch, 322 Md. at 199, 586 A.2d at 1276. The employer argued that the case should be dismissed because Finch failed to exhaust his contractual remedies before proceeding in court. We held that there [wa]s no need to resort to arbitration because the issue addressed by arb itrati on, w heth er the layo ff procedure was accomp lished in con formity with the CBA , would not itself be determinative of the wrongful discharge claim. Finch, 322 M d. at 207 , 586 A .2d at 12 80. In the instant case, the collective bargaining agreement directly governs Ms. Foster s grievances pertaining to wrongful demotion, termination and breach of contract. The collective bargaining agreement states explicitly that [a] suspension, demotion, discharge or other disciplinary action may only be taken against unit members for proper cause, and -25- then outlines the procedures for filing a grievance, defined as a claim by one party that the other party has violated th[e] Agreement. Ms. Foster s argument that she was wrongf ully demoted and terminated under the agreement and that the Board b reached th e agreem ent is exactly what the collective bargaining agreeme nt was de signed to cover; a s a result , Finch does n ot apply. Respon dents also contend that the reasoning of Jenkins does not apply because Ms. Foster s collective bargaining agreement explained that the procedure was optional based on its use of the word may. We believe that Respondents interpretation of the meaning of the word may in the collective bargaining agreement is incorrect. The ordinary meaning of the word may is [t]o be allowed or permitted to, whereas the ordinary definition of the word must is [t]o be required or obliged by law, morality, or custom. W ebster s II New College Dictionary 693, 740 (3d ed. 2005). In accordance with these definitions, Respon dents are correct Ms. Foster did not have to complete all four steps of the procedu re she had the option of stopping the grievance process at any point. By stopping the grievance process midstream, however, Ms. Foster waived her right to adjudicate her grievance with the Circuit Court, because, as explained supra, a plaintiff m ust exhau st all contractual remedies as a condition precedent to seeking judicial relief in the courts. To be certain, she did not have to continue with the grievance procedure if she no longer wanted to have her grievance heard; however, if she wanted to proceed with her grievance, she had to first ex haust h er reme dies un der the c ollective bargain ing agr eemen t. -26- In addition, we agree with Petitioners that the Court of Special Appea ls erred in remandin g the case to the Circuit Court to determine whether the Board waived its right to arbitrate the claims. In our view, the Board was absolved of its obligation to arbitrate Ms. Foster s grievance when she waived Step Four of the collective bargaining agreement, the arbitration step. The grievance procedure is in place to aid the grievant, in this case, Ms. Foster, to seek informal resolution of her complaints. Once Ms. Foster waived arbitration, the Board was entitled to close the grievance, and, therefore, the Board had no o bligation to convince Ms. Foster to continue. The collective barga ining agree ment sets fo rth specific time limits and states explicitly that [ a] grievanc e shall be au tomatically waived and shall not be subject to further discussion or appeal if the grievant does not process it within any of the stated time limits. When Ms. Foster attempted to revive her arbitration after she had waived it, she was acting beyond the stated time limit of five days.25 The agreement states clearly that the time limits may only be extended by mutual agreem ent betw een the parties, and the Board was under no obligation to extend those time limits. We therefore see no need for the Circuit C ourt to decid e whethe r the Board waived its right to arbitration beca use it is clear th at the B oard, in fact, did not wa ive arbit ration. We hold that the Circuit Court erred in allowing the jury to adjudicate the claims for wrongful demotion, termination and breach of contract because Ms. Foster failed to exhaust 25 The record does not specify the exact date upon which M s. Foster attem pted to revive arbitration, however, it does explain that she did so more than two weeks after she filed her initial complaint, which was after she withdrew her request for arbitration with the Board . -27- her contrac tual remed ies provide d for in the c ollective barg aining agre ement. CONCLUSION Based on our holding that, by abandoning her demand for arbitration, Ms. Foster failed to exhaust her contractual remedies and therefore had no right to pursue her claims for wrongful demotion, termination, breach of contract and her and her husband s derivative claim for loss of consortium, against the Board in court; the judgment entered against the Board, based on those claims must be reversed. There can be no new trial on those claims. We cannot resolve the status of the judgment against Ms. Gazunis based on the claim for defamation and/or any po rtion of the c laim for loss of conso rtium stemm ing from the defamation. At the very least, because of the way in which the issue of damages was presented to the jury, a new trial on damage s with respect to those claims m ust be held. It is simply not po ssible to dete rmine from the verdict she et or from th e record as a whole whether the unitary award of $285,000 was intended to apply to the defamation count or which portion of the loss of consortium verdict was attributable to defamation or wrongful demotion. As we observed, several issues were properly raised in the Court of Special Appeals. The validity of the verdict as to liability in the defamation action and the validity of the judgment entered against the Board, as w ell as the propriety of the trial judge s decision absolving Ms. Gazunis from liability are matters that the intermediate court declined to addres s. In light of our holding with respect to the claims against the Board, the Court of Special Appeals must now address those issues. The status of the d efamation claim will -28- necessarily depend on ho w those issues are resolve d. If the intermediate appellate cou rt were to conclude that any of those issues have merit and would warrant a new trial on the defamation count, and the derivative claim for loss of consortium, it will have to reverse the judgment entered against Ms. Gazunis and remand for a new trial on those counts. If the Court of Special Appea ls were to co nclude tha t none of th e issues hav e merit or w ould not, in any event, require an e ntirely new trial, it sho uld reverse the ju dgment a gainst M s. Gazun is and rem and fo r a new trial only on dama ges. JUDGMENT OF THE COURT O F S P E C IA L A P P E A L S R E V E R S E D . C A S E REMANDED TO THAT COU R T FOR FU R T H ER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS T O B E P A I D BY RESPONDEN TS. -29-

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