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No. 1853

September Term, 2014







Zarnoch, Robert A.

(Retired, Specially Assigned),


Opinion by Zarnoch, J.

Filed: September 2, 2016 *This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

‒Unreported Opinion‒ In June 2010, appellant, Dr. Bertram Miller, facing a recommendation of dismissal, resigned from his teaching position with New Town High School (“New Town”), a Baltimore County public school. Miller filed suit against appellee, the Board of Education of Baltimore County (“the Board”) in the Circuit Court for Baltimore County, alleging that members of the administration of New Town breached Miller’s employment contract by conducting unfair teaching evaluations and by failing to comply with the appeal procedures set out in the Teachers’ Association of Baltimore County (“TABCO”) Master Agreement (“TABCO contract”).1 A jury trial was held from May 12 through May 14, 2014, on the last remaining count of Miller’s complaint.2 At the conclusion of the trial, the jury returned a verdict in favor of the Board, finding that, although the Board breached the contract, Miller voluntarily resigned before completing the appeal process. Concluding that Miller’s retirement excused the Board from its duty to continue with Miller’s appeals, the court entered judgment for the Board. Miller noted a timely appeal, and presents the following

questions for our consideration, which we have rephrased:

I. Whether the circuit court abused its discretion by failing to reconsider summary judgment entered for the Board on Miller’s discrimination claim after Miller presented the court with new evidence?

Miller also named four members of the New Town High School administration as defendants in his suit. These defendants were dismissed from the case following the court’s grant of summary judgment for them.

Miller’s nine other counts were resolved against him on summary judgment. See

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II. Whether the trial court abused its discretion in denying Miller leave to file his third amended complaint?

III. Whether the trial court abused its discretion in rendering certain evidentiary rulings during the trial proceedings?

IV. Whether there was sufficient evidence to allow the jury to decide the case?

V. Whether the trial court abused its discretion in revising the jury verdict sheet and instructing the jury on Miller’s retirement from Baltimore County Public Schools?[3]

Miller phrased his questions as follows:

1. A. Did the Jury commit reversible error when it concluded that Appellant had retired (voluntarily E-534 line 15) and was not constructively terminated? B. Did the Jury commit reversible error when it concluded that Appellant’s (allegedly voluntary [E-534 line 15]) retirement had extinguished his entitlement to the due process of law guaranteed by the 14 th Amendment to the Constitution?

2. Did Judge Cahill commit reversible error by denying Appellant’s requests for Jury Instructions and Verdict Questions?

3. Did Judge Cahill commit reversible error when he A) denied Appellant’s request to introduce into evidence the brochure entitled, Maryland’s Response to Hate Crimes; B) sustained objections to Appellant’s line of questioning of Witnesses Cruse and Dowling regarding the (victimization by Theresa Vaccaro; C) sustained Appellee’s objection to Appellant’s request to introduce into evidence i) Witness Cruse’s formal report of the pinned-lemon incident, and ii) an internet video; D) prejudiced Appellant’s chance to receive a settlement offer; E) prejudiced the Jury by declaring in open court that he was “astonished” that Appellant could not see the relevance of a legal point and allowed Appellee to violate its own Motion in Limine;; F) often sustained “objections” that Appellee’s attorney had not asserted; G) presented his own erroneous Jury Instruction about Mrs. Vaccaro’s lemons; and H) ruled a witness statement to be hearsay which had been elicited from that witness by Appellee in a prior deposition.

4. Did Judge Cahill commit reversible error when a) he granted Appellee’s two Motions to Strike, b) denied Appellant’s Motion for Recusal, and c) (Continued... ) ‒Unreported Opinion‒ For the foregoing reasons, we affirm the judgment of the trial court.

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Before the filing of his lawsuit, Bertram Miller had been a high school mathematics teacher for over 35 years in the Baltimore County school system. During the 2008-2009 and 2009-2010 school years, Miller was evaluated by a performance appraisal team through several in class observations. His appraisal team consisted of Ms.

Barbara Cheswick, Dr. Robert Murray, Ms. Theresa Vaccaro, and Dr. John Staley.4 Although Miller received some good marks on his evaluations, he was rated “does not meet standards” in the majority of the evaluation criteria. With the help of Raymond Suarez, a TABCO union representative, Miller appealed each evaluation pursuant to Maryland Code (1978, 2014 Repl. Vol.), Education Article (“Educ.”) § 4-205(c), but did (... continued) denied Appellant’s Motion to Reinstate Defendants to the Discrimination Count?

5. Did Judge Brobst commit reversible error when she granted summary judgment on nine counts in Appellant’s Second Amended Complaint?

6. Did Judge Cahill commit reversible error by rejecting Appellant’s Jury Verdict Questions regarding Md. Rule 1-341 and Effect of Applicable Statutes?

The members of the appraisal team had the following roles: Cheswick served as school principal, Murray served as assistant principal, Vaccaro served as Mathematics Department chairperson, and Staley served as coordinator of secondary mathematics for the Board.

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not receive a disposition of his appeals before he was notified that he was slated for termination.5 On January 8, 2010, Miller initiated a damages action in the Circuit Court for Baltimore County against the Board and the members of his performance appraisal team.

On April 27, 2010, Joe Hairston, the superintendent of Baltimore County Public Schools, issued written notice to Miller that he would recommend to the Board that the teacher be dismissed from service on the basis of incompetency, effective June 30, 2010. On May 12, Miller filed an amended complaint seeking an injunction to stop the Board from firing him, which the court denied. After failing to secure this relief, Miller completed his “resignation statement form” and retired from his position on June 29, 2010, to ensure that he would be able to collect monthly retirement pay of approximately $5,000 along with other retirement benefits. The next day, apparently not having received Miller’s resignation, the superintendent sent a letter to him notifying him of the recommendation for dismissal and his right to appeal.6 Miller filed another amended complaint on September 30, 2010, claiming discrimination under §§ 20-606, -1013 of the State Government Article (“S.G.”), along Suarez is the UniServ Director for the Teacher’s Association of Baltimore County (“TABCO”), the Baltimore County teacher’s union.

Miller responded with a letter indicating his desire to continue with the administrative appeal process. However, he did not receive any response from the Board, and the Board did not conduct a hearing on his termination.

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with other common law claims including defamation, intentional infliction of emotional distress, civil conspiracy, wrongful discharge, and breach of contract.7 On August 1, 2011, the Board and individual defendants moved for summary judgment on all claims. Following a hearing held on November 10, 2011, the circuit court issued an opinion and order granting summary judgment as to counts 1, 2, 3, 4, 5, 6, 8, and 9 on January 11, 2012. Regarding the S.G. § 20-602 discrimination count, the

court observed that Miller presented no evidence on the issue. The motion judge stated:

“[Miller’s key witness,] Ms. Dowling was never deposed and provide[d] no affidavit for this court. [Miller] has not properly proffered any information that Dowling could potentially supply. [Miller] provide[d] neither affidavits of independent witnesses nor any independent documentation to corroborate his claim of discrimination.”8 The court also dismissed the individual defendants from the action and granted Miller 30 days leave to amend count 7. The court rejected summary judgment on count 10—breach of contract.

Miller alleged the following in his second amended complaint, filed September 30, 2010: Count 1: Defamation; Count 2: Intentional Infliction of Emotional Distress (the circuit court had previously granted summary judgment on this count in an Order dated September 29, 2011); Count 3: Civil Conspiracy; Count 4: Respondeat Superior;

Count 5: violation of Maryland Declaration of Rights; Count 6: Declaratory Judgment (this count was voluntarily dismissed by Miller); Count 7: Injunction; Count 8:

Wrongful Discharge; Count 9: Discrimination under State Government Article §§ 20Count 10: Breach of Contract.

Dowling was a former colleague of Miller in the mathematics department at New Town. She allegedly overheard racially discriminatory statements by the mathematics department chair about Miller, discussed more fully on pages 7 and 8, infra.

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From 2012 to 2014, the Board renewed its motion for summary judgment several times. The court denied the motion each time, and Miller’s breach of contract claim proceeded to a trial, scheduled for May 12, 2014. In the spring of 2014, two months before trial, Miller’s attorneys requested to withdraw from the case. Miller proceeded pro se, and on April 11, 2014, Miller submitted a third amended complaint. The Board moved to strike the complaint, and, after a hearing on May 7, the court struck the complaint.

At the three-day trial held from May 12 to May 14, 2014, Miller called several witnesses to describe the circumstances leading up to his resignation. Union representative Raymond Suarez described Miller’s attempts to appeal his unsatisfactory evaluations. He said that he and Miller chose to proceed under Educ. § 4-205, which allowed for the consolidation of grievances, but did not provide a deadline for the resolution of appeals. This contrasted with the grievance procedure outlined in the TABCO contract, which required the Board to provide a hearing within ten days of a request and a disposition of an appeal within ten days of the hearing.9 Although there was no deadline for the disposition of an appeal, Suarez felt that the school administrators unduly delayed in the resolution of Miller’s appeals. Regarding Miller’s evaluations, Suarez alleged that school administrators did not follow the in-class observation protocol Daniel Capozzi, manager of the Office of Staff Relations for New Town during the time in question, also testified to the specifics of Miller’s grievance appeal process.

From his testimony, it appears that Miller proceeded via § 4-205 because he was contesting, among other things, the content of his evaluations, which were not grievable under the terms of the TABCO contract.

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required by the TABCO contract. He also testified that many teachers retire, as Miller did here, instead of challenging a recommendation of dismissal, for fear that they would lose their pensions and retirement benefits if the appeals were unsuccessful.

Miller himself testified, and asserted that the conduct of the school administrators in delaying the resolution of his appeals put him in a position where he was forced to resign. Indicating that he was one of the teachers that Suarez alluded to, he said that his need to continue to receive income and to preserve his retirement benefits “put [him] in a situation where [he] had no choice [but to resign].” He also contended that there was no basis for the negative teaching evaluations that he received and that he received those negative evaluations in part due to prejudice from the mathematics department chair, Theresa Vaccaro.

Miller called Tracy Dowling, a former mathematics teacher at New Town.

Dowling told the jury that while she was at New Town, she heard Theresa Vaccaro make derogatory statements about Miller, including anti-Semitic remarks such as, “dirty Jew” and “fucking Jew.” Dowling also testified that she saw Vaccaro place a lemon with black pins stuck in it on Miller’s desk the Friday before school started in August 2009.10 During Miller’s testimony, he related that he felt that the lemon incident was a form of harassment that contributed to a hostile work environment. He reported it to the school administration, and at trial, he contended that the Board failed to take the lemon Betty Cruse, the department chair of business education, testified that she also received a pinned lemon as a form of intimidation.

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seriously, and failed in its duty to file a report with an equal employment opportunity officer based on the incident.

Theresa Vaccaro testified, and denied the allegations made by Dowling above.

She stated that she did not make derogatory or anti-Semitic remarks about Miller, and did not hold any racial animus against Jews. Further, she said she did not put a pinned lemon on Miller’s desk, nor did she know who placed the lemon there. Robert Murray, the viceprincipal of New Town, stated that he had not heard Vaccaro make any anti-Semitic remarks.

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