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Employee Not Entitled To Sue For Being Denied A Promotion

Perry v. Dept. of Health and Mental Hygiene
No. 00763 (Md. Ct. Spec. App. October 27, 2011)

by Gregory L. Arbogast, Associate
Semmes, Bowen & Semmes (

Perry v Dept. of Health and Mental Hygiene is an employment law appeal in which the Court denied Sandra Perry’s (“Ms. Perry”) claim to the entitlement of a promotion. In Perry, the Court held that Ms. Perry did not have a protectable interest in a job that she did not currently hold. Therefore, she did not state a claim upon which relief could be granted, and the Court found that her employer’s motion to dismiss was properly granted.

Ms. Perry was employed at the Wicomico County Health Department (“WCHD”) as an Agency Procurement Associate, level II. In January of 2009, Ms. Perry applied for a position as an Agency Procurement Specialist, level II. Shortly thereafter, she was notified, along with other applicants for the position, that no one met the minimum qualifications for the promotion and the promotion was reclassified at the trainee level. On January 6, 2009, Ms. Perry indicated that she would like to be considered for the position at the trainee level, even though she was already at level II. The trainee level position was later filled by another applicant. On April 15, 2009, Ms. Perry was laid off from WCHD.

On July 2, 2009, Ms. Perry filed a grievance challenging the denial of her application for promotion to the position of Agency Procurement Specialist, level II. The agency scheduled a hearing on her grievance before Lori Brewster, the Health Officer of the WCHD. Ms. Brewster, however, denied Ms. Perry’s claim on the basis that her appeal did not allege any illegal or unconstitutional action on the part of WCHD.

Ms. Perry appealed Ms. Brewster’s decision for judicial review under MD. RULE 7-401 to the Circuit Court for Wicomico County. WCHD filed a Motion to Dismiss Ms. Perry’s appeal on the basis that Ms. Perry failed to allege sufficient facts to support the conclusion that she was denied of a substantial right by WCHD’s actions. The Circuit Court granted WCHD’s Motion to Dismiss. As a result thereof, Ms. Perry noted this appeal.

MD. CODE ANN., STATE PERS. & PENS. § 7-201 limits wrongful termination claims against employers to situations in which the employee had a cognizable interest in the position. Therefore, the Court of Special Appeals examined whether Ms. Perry had a constitutionally protected and cognizable interest in the promotion for the level II position. Ms. Perry claimed a constitutionally protected interest in the position because she was already at the level II stage. She claimed that WCHD must have improperly examined her application because it found that no one was qualified for the level II position. The Court of Special Appeals, however, found that no one has a constitutionally protected or cognizable interest in a promotion. Otherwise, someone would have a protectable interest in a position which that person did not actually hold.

The Court of Special Appeals also dismissed Ms. Perry’s claim that WCHD improperly examined her application. The Court held that the employment statutes do not permit an employee to sue for failure to get a promotion based upon negligent acts. Therefore, the Court of Special Appeals refused to examine whether WCHD was negligent in failing to give Ms. Perry the promotion. Based on its findings that Ms. Perry did not have a constitutionally protected and cognizable interest in the promotion, the Court of Special Appeals affirmed the Circuit Court’s grant of WCHD’s Motion to Dismiss.