There Is No Right to a Promotion (Maryland Law)

In January 2009, Sandra Perry, an employee of the Wicomico County Health Department, was denied a promotion for which she was told she did not meet the minimum qualifications. Three months later the Department laid her off from her position as an Agency Procurement Associate, but also assisted her in securing another position within the Maryland Department of Health and Mental Hygiene.  However, the day after starting the new job, Ms. Perry filed a grievance claiming, not that she was wrongly laid-off, but that she was wrongly denied the promotion in January.

The Department denied Ms. Perry’s grievance stating that there was nothing illegal or unconstitutional done in denying her the promotion. In response, Ms. Perry filed a petition for judicial review by the Circuit Court. Maryland Rule 7-401 and 7-403 allow the judicial review of administrative agency action if the plaintiff claims that the agency harmed a substantial legal right by making a decision that was:

(A)  Unconstitutional;

(B)  Exceeded the statutory authority or jurisdiction of the agency;

(C)  Resulted from an unlawful procedure;

(D)  Was affected by an error of law;

(E)   Was unsupported by competent, material, and substantial evidence;

(F)   Was arbitrary or capricious; or

(G)  Was an abuse of its discretion.

Md. Rule 7-403.

Before coming before the Court of Appeals, the Wicomico Circuit Court found that nothing in Perry’s complaint against the Department’s denial of the promotion amounted to a violation of state or federal law. Upon her appeal, the court noted that “Maryland Rule 7-403 does not provide administrative mandamus review for negligent actions” and even if the Department “was mistaken in determining that [Ms. Perry] was not qualified for the Agency Procurement Specialist II position for which she originally applied, such a determination would not be unconstitutional or illegal.” The court held that the Department’s decision to promote another applicant than Perry “was entirely discretionary.”

Relying on prior cases (Oltman v. Bd. of Physicians, 182 Md. App. 65 (2008) (holding that a former physician’s assistant had no protected property interest in his revoked certificate); Dozier v. Dep’t of Human Resources, 164 Md. App. 526 (2005) (holding that an at-will State employee had no protected property interest in continued employment)), the Maryland Court of Appeals ruled that Ms. Perry improperly claimed to have a substantial right to the promotion. “Having been given an opportunity to apply, offered an interview, and considered for the position, appellant did not gain any entitlement to the promotion.” The court required Ms. Perry to pay the costs of the suit.

Perry v. Dep’t of Health and Mental Hygiene, Wicomico County Health Department, No. 00763, Md. Ct of App. (Oct. 27, 2011).