Deborah PORTERFIELD v. MASCARI II, INC.
No. 14, Sept. Term, 2002
Court of Appeals of Maryland
May 8, 2003
823 A.2d 590
374 Md. 402
I would affirm the Court of Special Appeals, but for all of the reasons stated in this dissent, especially on the basis that
To continue on the path this Court has taken in recent years is, in my view, a totally unwarranted extension of the principles of immunity, and, more important, is an affront to the constitutional provision found in
Marc S. Levine (Handler & Levine, LLC, Bethesda, Diane A. Seltzer, Washington, DC, on brief), for respondent.
Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.
HARRELL, J.
Deborah Porterfield (“Petitioner“) alleges that she was discharged wrongfully by her employer, Home Instead Senior Care (“Home Instead“), for implying an intent to seek legal advice before responding to an unfavorable work evaluation. Porterfield was employed as an administrative assistant by Home Instead from December 1997 through August 1999. After receiving a written “Employee Warning,” she informed her supervisors at Home Instead that she had been advised to consult an attorney before “formally responding” to the warning.1 Porterfield‘s employment was terminated almost immediately. As a result, she filed a complaint against Respondents2 in the Circuit Court for Montgomery County alleging among her causes of action one for wrongful discharge. Re-
I.
On 1 December 1997, Thomas Mascari, the original franchisee of the Home Instead4 franchise based in Rockville, Maryland, hired Deborah Porterfield (“Petitioner“) to work full time as Staff Coordinator. Her duties primarily consisted of assisting him with administrative matters.5 Thomas Mascari became seriously ill and died on 29 January 1999, leaving Home Instead to his sister, Patricia Mascari (“Mascari“), to manage.
Julie Elseroad (“Elseroad“) was hired in March of 1999 to perform clerical and administrative duties in the office. In response to ensuing conflicts between Porterfield and Elseroad, Mascari performed a formal review of Porterfield‘s work to assure her that her employment was secure. Porterfield
On or about 5 May 1999 Mascari requested that Porterfield work three-day work weeks until Home Instead‘s revenues increased. Shortly thereafter, Mascari informed Porterfield that she had been told that Porterfield had complained about her employment at Home Instead-Rockville to another Home Instead franchisee. Porterfield denied making any such remark and told Mascari she was happy with her employment situation.
In June of 1999, Mascari issued a new recruiting policy for potential care-givers.6 On at least two occasions after the edict was issued, Porterfield was reprimanded by Mascari for failing to conform to the new recruiting policy. On Monday, 30 August 1999, Mascari issued Porterfield a written “Employee Warning Report” alerting Porterfield that she would be discharged if Mascari and Elseroad did not see “marked improvement at the end of the next four weeks.” The report contained numerous statements which Porterfield claimed were false. Among these were statements that in a meeting on 4 August 1999 with Mascari and Elseroad, Porterfield had “refused [their] assistance,” and had “initially quit;” that at the meeting Mascari and Elseroad had spoken to Porterfield about her “not being efficient or productive in most aspects of [her] job;” that Porterfield was “not adhering to her workplan;” and that Porterfield had received a “[p]revious [w]arning” on 23 June 1999. Mascari requested that Porterfield sign the warning report,7 but Porterfield stated that she wanted to take the document home and review it.
Porterfield filed her complaint against Mascari Inc.,9 Mascari II, Inc., Patricia Mascari, and Julie Elseroad on 30 August 2000 in the Circuit Court for Montgomery County alleging five counts, including a wrongful discharge count against Patricia Mascari and the corporations only. She filed an Amended Complaint on 30 October 2000.10
With respect to the wrongful discharge count against Home Instead and Mascari, Porterfield alleged that her discharge violated the abusive discharge doctrine announced by this Court in Adler v. Am. Standard Corp., 291 Md. 31, 432 A.2d 464 (1981), ans. conformed to, 538 F.Supp. 572 (D.Md.1982), aff‘d in part & rev‘d in part, 830 F.2d 1303 (4th Cir.1987), because Respondents “discharg[ed her] because of [her] articulated desire to consult counsel before submitting to [Respondents] her response to the Employee Warning Report.” She
The defendants filed a Motion to Dismiss on 6 December 2000 asking the Circuit Court to dismiss all five counts against them because Porterfield failed to state a cause of action upon which relief could be granted. No written opposition to that motion was filed by Porterfield. A motions hearing was held on 7 March 2001. At the conclusion of the hearing, the judge granted the motion to dismiss all counts with prejudice. He found the amended complaint to be “generally deficient overall with respect to each and every count,” and characterized its contents as “vague,” “general,” and “non-specific.”11
Porterfield appealed the Circuit Court‘s judgment to the Court of Special Appeals. That court‘s review was limited to considering whether an employee who alleged that she was terminated from employment for seeking to consult with an attorney before acknowledging a written warning of inadequate job performance stated a cause of action for wrongful discharge. The court held, in a reported opinion, that such allegations, without more, did not state a cause of action.
Porterfield rested her argument in the intermediate appellate court on the contention that her discharge violated “some clear mandate of public policy.” Porterfield pointed to Adler, 291 Md. at 47, 432 A.2d at 473, for the proposition that “Maryland has long recognized that a cause of action for
Respondents argued to the Court of Special Appeals that Petitioner failed to identify a clear mandate of public policy that had been violated by her discharge. Respondents interpreted Adler to stand for the proposition that the public policy exception to the at-will employment doctrine is to be narrowly construed and operates only where the discharge violates a “manifestly clear expression of public policy.” They claimed that there is a “strong presumption against the judicial creation of novel and undeclared concepts of public policy that are not squarely grounded in statute, administrative regulations or common law.” Furthermore, Respondents relied on Watson v. Peoples Sec. Life Ins. Co., 322 Md. 467, 588 A.2d 760 (1991), to demonstrate that Petitioner‘s theory of wrongful discharge already had been rejected by this Court.
The Court of Special Appeals opined that, for the tort of wrongful discharge to lie, the public policy in question must be “a preexisting, unambiguous, particularized announcement, by constitution, enactment, or prior judicial decision, directing, prohibiting, or protecting the conduct in question so as to make the public policy on the relevant topic not a matter of conjecture or interpretation.” Porterfield v. Mascari, 142 Md.App. 134, 140, 788 A.2d 242, 245 (2002). The complaining party must plead with particularity the source of the public
The Court of Special Appeals declined to recognize generalized expressions of right to counsel as a public policy basis for Petitioner‘s wrongful discharge claim. Finding this case to be similar to Watson, the court reiterated our holding in Watson, that “absent a statute expressing a clear mandate of public policy, there is ordinarily no violation of public policy when an employer discharges an at-will employee in retaliation for the employee having sued the employer.” Porterfield, 142 Md.App. at 142, 788 A.2d at 246 (citing Watson, 322 Md. at 478, 588 A.2d at 766). Following our reasoning in Watson, the intermediate appellate court concluded that
while there may be a general right to engage in certain activity, even if the activity is favored by public policy, it does not necessarily follow that the right to pursue the activity equates with the right to remain employed and converts a non-actionable termination of employment to an actionable one.
142 Md.App. at 141, 788 A.2d at 245. The court dismissed Petitioner‘s reliance on the Ohio and Iowa cases stating that “they are not consistent with the law of Maryland.” 142 Md.App. at 143, 788 A.2d at 246.
II.
A.
B.
Petitioner asks this Court to find that the general right to consult counsel is a “clear mandate of public policy,” the violation of which is a sufficient basis for a wrongful discharge cause of action.12 She acknowledges that Maryland has not recognized such a public policy basis for a wrongful discharge action heretofore, but asks us to follow suit with the Ohio and Iowa cases she cites finding that a claim for wrongful discharge based on a violation of public policy will lie when an employee is terminated for consulting an attorney. See
favoring consultation with attorneys in order to determine whether a person has a legal problem, [a] public policy favoring the availability of competent legal advice, [a] public policy placing on lawyers a duty to counsel only actions that are legal and just, and [a] public policy favoring compensation of legal counsel for individuals who endeavor to vindicate civil rights, the court concludes that acts that impede an individual from seeking legal advice would be “injurious to the public, or against the public good,” would not be “right and just,” and could potentially have a deleterious effect on “what affects the citizens of the State collectively.”
The Court of Appeals of Ohio likewise recognized that “the act of firing an employee for consulting an attorney could serve as the basis for a public policy exception to the common-law employment-at-will doctrine.” Simonelli, 650 N.E.2d at 492. Following Thompto, the Simonelli court stated that
clear public policy sufficient to justify an exception to the employment-at-will doctrine is not limited to public policy expressed by the General Assembly in the form of statutory enactments, but may also be discerned as a matter of law based on other sources, such as the Constitutions of Ohio and the United States, administrative rules and regulations, and the common law.
Petitioner directs our attention to claimed indicia in Maryland that the general right to consult legal counsel is a “clear mandate of public policy.” Porterfield, in this Court, draws from constitutional, statutory, and common law sources to
Respondents contend that Petitioner fails to set forth a “clear mandate of public policy” in her amended complaint because she failed to identify specifically the public policy Respondents allegedly violated and because Maryland law does not recognize the right to counsel as a public policy exception to the employment-at-will doctrine. Respondents return to the source, Adler, to bolster their argument. In that case, this Court renewed its endorsement of the common law rule that at-will employees may be “legally terminated at the pleasure of either party at any time.” Adler, 291 Md. at 35, 432 A.2d at 467. Respondents argue that Adler and its
While this Court has not confined itself strictly to prior judicial opinions, legislative enactments, or administrative regulations in determining the public policy of Maryland, we have, nevertheless, recognized that the establishment of “an otherwise undeclared public policy as a basis for a judicial decision involves the application of a very nebulous concept to the facts of a given case, and that declaration of public policy is normally the function of the legislative branch.”
370 Md. 38, 54, 803 A.2d 482, 491 (2002) (citing Adler, 291 Md. at 45, 432 A.2d at 472).
To plead successfully a cause of action for wrongful discharge, Respondents argue, a plaintiff must allege with particularity the source of public policy that was violated by the discharge. According to Respondents, Petitioner, in her amended complaint, failed to provide precise factual details to support her claim that the claimed policy was violated.
Furthermore, as their argument goes, there can be no tort for wrongful discharge when the public policy basis for the claim arises from a source that identifies its’ own civil remedy. Respondents claim that the sole source of public policy relied upon by Petitioner in her amended complaint, the Federal Age Discrimination in Employment Act (“ADEA“), carries its own remedy for violations.16 There can be no wrongful discharge suit, they argue, if the ADEA is the sole basis for the public policy that allegedly has been violated.
Respondents analogize Petitioner‘s claim to that before the Court of Special Appeals in Miller v. Fairchild Indus., 97 Md.App. 324, 629 A.2d 1293, cert. denied, 333 Md. 172, 634 A.2d 46 (1993). In Miller, the Court of Special Appeals determined that termination of employees by a private employer in retaliation for something said by the employees does not violate the public policy favoring free speech and thus does not give rise to a wrongful discharge claim. Miller, 97 Md.App. at 337, 629 A.2d at 1299. Respondents urge us to find that even if an at-will employee is found to possess a relevant constitutional right, as in Miller, the employee does not have a linked constitutional right to remain an employee if the employer expresses its umbrage at the exercise of the underlying right by firing the employee. Respondents characterize Petitioner‘s request as asking this Court to “convert public policy favoring access to attorneys into a public policy mandating that a private employer retain any employee who has notified (or alleges to have notified her employer) of her intent to discuss any work related issue (or other ‘matter of
Respondents conclude that Maryland courts have declined to find a mandate of public policy sufficiently clear to serve as the basis of a wrongful discharge action in every state statute or regulation.17 Instead, they argue, Maryland courts have reserved such declarations of public policy for where there is
Respondents envision that a decision in Petitioner‘s favor would open the floodgates of litigation to every at-will employee who is terminated after stating an intent to seek counsel regarding a workplace situation. They predict that an employee then could be immunized from an adverse employment decision merely by stating “I am calling a lawyer.” Respondents postulate further that the recognition of such a public policy mandate would erode grievously the at-will employment doctrine.
III.
A.
The employment-at-will doctrine long has been part of the common law of Maryland. McCullough Iron Co. v. Car-
In Adler, this Court first considered a judicially-created exception to the terminable at-will doctrine to protect certain public policy interests. The public policy exception to the at-will employment doctrine holds that an employee who has been “discharged in a manner that contravenes public policy,” may bring a cause of action in tort “for abusive or wrongful discharge against his former employer.” Adler, 291 Md. at 35-36, 432 A.2d at 467. We held in Adler that when the termination of an employee violates some “clear mandate of public policy” an action for wrongful discharge will lie. 291 Md. at 43, 432 A.2d at 471. To find that an employer acted in a manner such as to justify a claim for wrongful discharge, there must first be a clear mandate of public policy that was contravened by the discharge. The definition of “public policy” adopted by this Court in Adler was:
[p]ublic policy is that principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against the public good, which may be termed, as it sometimes has been, the policy of the law, or public policy in relation to the administration of the law.
Adler, 291 Md. at 45, 432 A.2d at 472 (citing Eagerton v. Earl Brownlow, 4 H.L. (House of Lords) Cas. 1, 196 (1853)). Consistent with a purpose of this tort, namely to provide a remedy for otherwise unremedied violations of public policy, we have been careful to “be precise about the contours of actionable public policy mandates” by confining the scope of such mandates in the wrongful discharge context to “clear and articulable principles of law.” Wholey v. Sears, Roebuck & Co., et al., 370 Md. at 52, 803 A.2d at 490. We acknowledged in Adler and elsewhere that a public policy mandate providing a basis for a wrongful discharge claim ordinarily should be derived from constitutional or statutory expressions of public policy. Because the establishment of “an otherwise undeclared public policy as a basis for a judicial decision involves the application of a very nebulous concept to the facts of a given case, and that declaration of public policy is normally the function of the legislative branch,” Adler, 291 Md. at 45, 432 A.2d at 472, we have strived to limit our purview to public policies “reasonably discernible from prescribed constitutional or statutory mandates.” Wholey, 370 Md. at 54, 803 A.2d at 491.
Even where statutory and regulatory provisions supply a source of a public policy in the analysis of a wrongful discharge claim, if those provisions already provide an adequate and appropriate civil remedy for the wrongful discharge the claim will fail. Makovi v. Sherwin-Williams Co., 316 Md. 603, 614-15, 561 A.2d 179, 185 (1989). The tort will not lie if
The Plaintiff in Adler18 claimed that he was fired by his employers in order “to conceal improprieties and illegal activities” which he might disclose at an impending high-level managerial meeting. 291 Md. at 34, 432 A.2d at 466. He claimed that his discharge was wrongful because it was motivated by the company‘s desire to conceal various illegal activities and the motive therefore was contrary to the public policy of Maryland. 291 Md. at 34-35, 432 A.2d at 466-67. We held, however, that, although a cause of action for wrongful discharge is recognized in Maryland common law, Adler failed to demonstrate that any clear mandate of public policy had been violated by his discharge. 291 Md. at 44, 432 A.2d at 471. The two sources of public policy upon which he relied were found to be inapposite to the alleged facts of his claim, and his amended complaint failed to demonstrate a clear mandate of public policy.19
In Wholey, we recently held that a clear statutory public policy mandate exists in Maryland that protects employees from termination for reporting suspected criminal activities to the appropriate law enforcement authorities. 370 Md. at 43, 803 A.2d at 484. We found that a clear mandate of public policy existed favoring the investigation and reporting of suspected criminal activity by relying on multiple sources to “discern that the legislature intended to preclude retaliation against those who report criminal activity.” Wholey, 370 Md. at 62, 803 A.2d at 495. Although the legislature provided in the legislative scheme a statutory remedy for public employee-whistleblowers, it did not do so for “private employee-whistleblowers.” Wholey, 370 Md. at 57, 803 A.2d at 492 (emphasis in original). Statutory bases for public policy supporting the tort were found in
the Legislature sought to protect those witnesses who report suspected criminal activity to the appropriate law enforcement or judicial authority from being harmed for performing this important public task [reporting crimes to the appropriate public authorities]. From this clearly definable public policy, we are able to adopt a civil cause of action in wrongful discharge for employees who are discharged for reporting suspected criminal activity to the appropriate authorities.
Wholey, 370 Md. at 59, 803 A.2d at 494 (emphasis in original). We held, however, that although a wrongful discharge action may be brought when an employer violates the public policy favoring reporting crimes to the appropriate public authorities the facts in that case did not state a violation of the policy.
In Makovi, this Court was asked to decide whether a wrongful discharge action lies when there is a civil remedy made available by statute. The petitioner in that case urged that although she was entitled to seek redress for her employer‘s actions by bringing an action pursuant to
[i]n cases of discharge motivated by employment discrimination prohibited by
Title VII andArt. 49B the statutes create both the right, by way of an exception to the terminable at-will doctrine, and remedies for enforcing that exception. Thus, the generally accepted reason for recognizing the tort, that of vindicating an otherwise civilly unremedied public policy violation, does not apply. Further, allowing full tort damages to be claimed in the name of vindicating the statutory public policy goals upsets the balance between right and remedy struck by the Legislature in establishing the very policy relied upon.
316 Md. at 626, 561 A.2d at 190.
When there is no remedy provided by a statute, however, the absence of the remedy may justify vindication for violation of the public policy through a wrongful discharge action. In Molesworth v. Brandon, 341 Md. 621, 628, 672 A.2d 608, 612 (1996), we considered the provisions of the Maryland Fair Employment Practices Act (“FEPA“) and held that
We also have recognized public policy found in the common law itself. Thus, even in Watson, 322 Md. 467, 588 A.2d 760 (1991), we found that the interest in preserving bodily integrity was a sufficient public policy basis such that its violation gave rise to a wrongful discharge cause of action. 322 Md. at 481, 588 A.2d at 767. Petitioner in that case alleged that her supervisor had harassed her sexually and, on one occasion, sexually assaulted her by putting his hands on her shoulders and attempting to “bite her breast.” Id. After complaining to higher supervisors who did nothing to remedy the situation, Watson filed a complaint in court and her employment was subsequently terminated. 322 Md. at 472, 588 A.2d at 762. She amended her initial complaint to allege that her discharge was as a result of filing suit. Id. Although we commented that an “abstract ‘right of redress‘” to the courts was too general a basis to satisfy the public policy element of a wrongful discharge claim, id. at 477, 588 A.2d at 766, we ultimately concluded that the common law right to bring a cause of action based on the occurrence or apprehension of an offensive bodily
B.
Count I of Petitioner‘s amended complaint alleged wrongful discharge. Petitioner described the “clearly mandated public policy of Maryland” violated by Respondents as follows:
At all times pertinent hereto, the public policy of Maryland mandated that all persons be permitted freely to consult with an attorney of their choice concerning matters of importance in their lives, including matters related to their employment. One source of the foregoing public policy is Article 2 of the Declaration of Rights of the Maryland Constitution, which incorporates federal law into the law of Maryland. The federal Older Workers Benefit Protection Act (“OWBPA“),
29 U.S.C. 626(f) , mandates that employers who wish to negotiate an employee‘s release of age-discrimination claims must inform the employee of his right to confer with an attorney concerning the release.
Petitioner contends that “[w]hen there is a strong public policy favoring access of all persons to legal counsel, that policy is clearly contravened when a person‘s employment is terminated simply because she expressed a desire to consult with an attorney.” Petitioner, however, is wrong to conflate any public policy generally favoring access to counsel with a policy that is violated by the mere suggestion by an employee that he or she may want to seek advice of counsel. The possibility that an assumed right may be exercised is not the same as the actual act of exercising that right. Therefore, Petitioner‘s argument assumes that advice, or the desire, to consult an attorney is protected by the same public policy, if it exists, that protects the right to counsel. This is not an assumption we accept because, as Respondent suggests, the necessary extension of such a conclusion is that “an employee could be immunized from an adverse employment action by simply announcing, ‘I am calling a lawyer.‘” We conclude instead that Maryland law does not recognize with sufficient particularity the general right characterized by Petitioner in her amended complaint, namely “freely to consult with an attorney of [one‘s] choice concerning matters of importance in [one‘s] lives, including matters related to [one‘s] employment,” as a clear mandate of public policy sufficient to underlie a wrongful discharge action. We further conclude that even if
The purpose of Rule 2-322(b)(2) (motion to dismiss for failure to state a claim upon which relief may be granted) is to have legal questions decided before trial of the action on the merits. Irvine v. Montgomery Co., 239 Md. 113, 210 A.2d 359 (1965). The legal question presented is whether the plaintiff alleged a legally sufficient cause of action on the face of Count I of the amended complaint. A complaint, however, is barred from presenting “technical forms of pleading,” and “shall not include argument [or] unnecessary recitals of law.”
We stated in Watson that “absent a statute expressing a clear mandate of public policy, there ordinarily is no violation of public policy by an employer‘s discharging an at-will employee in retaliation for that employee‘s suing the employer.” 322 Md. at 478, 588 A.2d at 765. It would be incongruous indeed to find that termination allegedly resulting from a suggestion the employee may seek legal advice regarding an otherwise unprotected employment matter would be a violation of public policy when termination allegedly resulting from actually commencing suit, through counsel, against an employer has been found not to violate public policy. The bases for
A purpose of the wrongful discharge tort is to address “particularly reprehensible conduct.” Ewing v. Koppers Co., 312 Md. 45, 49, 537 A.2d 1173, 1174 (1988). Such egregious conduct in violation of public policy is not apparent on the facts alleged by Porterfield. Absent a clear and articulable statement of public policy, we are mindful of our recognition in Wholey that the establishment of “otherwise undeclared public policy” is ordinarily the “function of the legislative branch.” 370 Md. at 54, 803 A.2d at 491.
The cases in which we have found a clear mandate of public policy have involved expressions of public policy much stronger than those urged upon us by Petitioner. Both Wholey and Molesworth involved situations where the public policy was enunciated clearly in the relevant statutes, and applied narrowly to sets of circumstances beyond the express scope of the statutes. In Wholey we recognized the public policy expressed in a statute that applied exclusively to public employee-whistleblowers as permitting private employee-whistleblowers to base a wrongful discharge action on violation of the public policy. 370 Md. at 57, 803 A.2d at 492. We found that the statute reflected the public policy mandate that employees should be encouraged to report suspected criminal activities to the appropriate public authorities. 370 Md. at 43, 803 A.2d at 484. Molesworth involved a statute that applied to employers of more than fifteen employees and prohibited discrimination on the basis of sex. 341 Md. at 628, 672 A.2d at 612. We concluded that the statute expressed a clear mandate of public policy regarding all employers and therefore we permitted an
Petitioner argues in terms of a general right to counsel although the factual allegations of her amended complaint are limited to a situation where she merely announced that she had been advised to seek advice of counsel. Her asserted constitutional sources of public policy do not speak directly to the alleged facts of this case. First,
Although Petitioner claims that the Maryland Legal Services Corporation Act (“Act“) was passed in recognition of “the importance of the availability of counsel to all persons, regardless of income,” the language of the Act rather indicates that it addresses a need to provide access to legal counsel not to all people, but specifically to those who are otherwise unable to afford it.
Petitioner also avers that the mere existence of the attorney-client privilege supports her theory that the general right to counsel is an important public policy that requires vindication in this matter. Her reliance is misplaced because the attorney-client privilege does not mandate, or even necessarily favor, access to counsel. It protects the confidences of the attorney-client relationship once it is formed. The cases Petitioner refers us to only reinforce the emphasis of the attorney-client privilege on preserving the relationship once it is formed, rather than fostering directly the formation of that relationship. See Helferstay v. Creamer, 58 Md.App. 263, 473 A.2d 47 (1984) (stating the privilege is based on the policy that
Petitioner makes the argument that she was fired either because Mascari feared Petitioner would retain a lawyer and sue her for defamation as to the content of the warning report, or because Mascari did not want to work with an employee who had consulted an attorney regarding a work dispute. Petitioner failed to demonstrate to this Court how either of these reasons for her termination would be inconsistent with the terminable at-will employment doctrine. The purpose of the public policy exception to the common law terminable at-will doctrine is quite simply to uphold the purposes and aims of our public policies. Petitioner has failed to point to any clear public policy that was violated by her termination. The alleged grounds for her termination do not implicate the public good and the relevant conduct of her employer as pled is far from being reprehensible. We agree with the Court of Special Appeals that “the violation of the general right to consult counsel is not enough. The conduct of the employer and the nature of the potential claim, if any, are relevant,” therefore, “there is nothing to take this case out of the general rule expressed in Watson.” 142 Md.App. at 142-43, 788 A.2d at 246. We hold that while Maryland law indeed may favor access to counsel, there is no sufficiently clear mandate of public policy that has been violated on the facts alleged here such that vindication by bringing a wrongful discharge action is required to protect the public interest.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.
BELL, C.J., ELDRIDGE and RAKER, JJ., dissent.
ELDRIDGE, J. dissenting.
The majority holds that “there is no sufficiently clear mandate of public policy that has been violated” when an employer fires an at-will employee for stating her intent to seek advice from legal counsel regarding her rights and obligations before signing a document concerning an unfavorable work evalua-
As I stated in my dissent in Wholey v. Sears, Roebuck & Co., 370 Md. 38, 76, 803 A.2d 482, 504 (2002), “I continue to disagree with the extremely narrow scope which the majorities of this Court have repeatedly accorded the tort of abusive discharge.” As a consequence of this narrow construction, “numerous discharges from employment, which are abusive and clearly contrary to public policy as a matter of common sense, are held to be beyond the scope of the tort.” 370 Md. at 77, 803 A.2d at 504. Because I disagree with the majority‘s insistence in according an extremely narrow scope to this tort, I respectfully dissent.
Furthermore, I am astounded by the position of a majority of the members of this Court—all of whom are lawyers—that a person‘s right to consult with his or her own lawyer is not a clear mandate of Maryland public policy.
It is important to recognize that Deborah Porterfield was not fired because her employer believed that she performed poorly or simply because her employer did not like her. An employer ordinarily is entitled to fire an at-will employee on such grounds. Instead, Porterfield was fired because she wanted to consult with counsel before signing a document which her employer wanted her to sign.
In holding that this is a valid public policy basis for firing an at-will employee, the majority states “that Maryland law does not recognize with sufficient particularity the general right characterized by Petitioner in her amended complaint, namely, ‘freely to consult with an attorney of [one‘s] choice concerning matters related to [one‘s] employment,’ as a clear mandate of public policy sufficient to underlie a wrongful discharge action.” Later, the majority seems to hold that the Maryland Declaration of Rights does not guarantee a right to counsel in civil matters, that “a right to counsel in civil matters [is] not mentioned in Article 21” and would not “be of the same importance as the right in criminal matters.” The majority
Presumably, under the majority‘s holding, it would not violate public policy for an employer to, by threat of termination, coerce an employee to sign, without legal advice, an incomprehensible contract, or an unfavorable contract, or a government form, or a document containing false admissions, or a deed, or a document disposing of the employee‘s personal property, or a document waiving rights, etc. The notion that a Marylander, under Articles 19, 24 and 45 of the Declaration of Rights, has no right to the advice of counsel before signing such documents, is incomprehensible to me.1
This Court has, of course, held that the constitutional right to counsel is broader than the right to counsel under the
In my view, under Maryland public policy and the Maryland Declaration of Rights, one has a right to seek advice of his or her attorney before being forced to sign an important document. I dissent from the majority‘s contrary view.
Chief Judge BELL and Judge RAKER join this dissenting opinion.
Notes
“Article 19. Remedy for injury to person or property.
“That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land.
“Article 24. Due Process.
“That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.
“Article 45. Reservation of rights of people.
“This enumeration of Rights shall not be construed to impair or deny others retained by the People.”