Gasper v. Ruffin Hotel

Decision Date02 December 2008
Docket NumberNo. 0968, September Term, 2007.,0968, September Term, 2007.
Citation183 Md. App. 211,960 A.2d 1228
PartiesKathleen GASPER v. RUFFIN HOTEL CORPORATION OF MARYLAND, INC.
CourtCourt of Special Appeals of Maryland

Rebecca N. Strandberg, Silver Spring (Julie G. Martin-Korb, on brief, Rockville), for Appellant.

Alan L. Rupe, Wichita, KS (Kutak Rock, LLP, Jennifer M. Blunt, on brief, Washington, DC), for Appellee.

Panel: MEREDITH, ZARNOCH and* J. FREDERICK SHARER, JJ.

SHARER, J.

In her complaint, filed in the Circuit Court for Montgomery County, Kathleen Gasper, appellant, alleged employment discrimination, sexual harassment, retaliatory discharge, negligent hiring, and other related counts.1 Appellees, defendants below, are Ruffin Hotel Corporation of Maryland ("Ruffin") and Imran Ahmed.2

In her timely appeal, Gasper raises three questions for our review, which, as rephrased, are:3

1. Whether the circuit court erred by instructing the jury that Gasper was required to prove that her protected activity was a "determining factor" for her retaliatory discharge, rather than a "motivating factor".

2. Whether the circuit court erred in excluding evidence showing that Ahmed had been previously terminated due to complaints of sexual harassment, assault and battery, and retaliation.

3. Whether the circuit court erred in dismissing Gasper's claim for negligent hiring and retention on preemption grounds.

BACKGROUND

Because the issues raised by appellant are limited to questions of law, we need only recite a summary of those facts necessary to provide a context for our discussion of the legal issues. See Whitney v. State, 158 Md.App. 519, 524, 857 A.2d 625 (2004).

Kathleen Gasper is a resident of Montgomery Village, located in Montgomery County, Maryland. Ruffin Hotel Corporation owns and operates the Courtyard by Marriott Gaithersburg-Lakeforest ("Hotel") in Gaithersburg, Montgomery County. Gasper was employed by Ruffin at the Hotel as the Assistant General Manager from November 17, 2003, to March 15, 2005, when she was terminated. Imran Ahmed was hired as the General Manager of the Hotel on April 26, 2004, and was Gasper's immediate superior.

In her amended complaint, Gasper claimed (1) employment discrimination and sexual harassment, (2) retaliation, (3) negligent hiring and retention, and (4) intentional infliction of emotional distress. She sought to impose liability on Ruffin for the actions of its employees on respondeat superior theories.

Gasper's complaint is grounded on allegations that she was sexually harassed by other Ruffin employees, and subsequently retaliated against for reporting the sexual harassment.4 Her amended complaint alleged, in pertinent part:

12. On January 17, 2005, while at the front desk of the [Hotel], Front Desk Manager James Bridges grabbed Plaintiff, pinned her against the wall and kissed her twice. Plaintiff was terrified and intimidated by Mr. Bridges' advances and show of force toward her. She was apprehensive about returning to work where she would have to confront him.

13. On January 19, 2005, Plaintiff complained to Defendant Ahmed of Mr. Bridges' actions. Defendant Ahmed discouraged Plaintiff from making any further complaints. On January 20, 2005 Defendant Ahmed told Plaintiff he planned to do nothing about her complaint of sexual harassment because Mr. Bridges had denied the inappropriate conduct. On January 24, 2005, Plaintiff submitted a written complaint to Defendant Ahmed recounting the events of January 17, 2005. Mr. Ahmed again discouraged her from making further complaints and threatened her with termination. Mr. Ahmed suggested that the corporate office was not taking Plaintiff's complaint seriously, either.

14. On or about February 3, 2005, Mr. Ahmed offered to hold a meeting between Plaintiff and Mr. Bridges, but refused to facilitate any resolution. Plaintiff did not attend the meeting because shortly before it, Mr. Ahmed told Plaintiff she would have to take the lead in resolving the problem, which she felt would be fruitless. In addition, Plaintiff was frightened by Mr. Bridges.

15. Later that same day, Mr. Bridges entered Plaintiff's office and tried to intimidate her. Plaintiff asked Mr. Bridges to leave, which resulted in Mr. Bridges shouting obscenities referring to Plaintiff near Mr. Ahmed's office.

16. On or about February 3, 2005, Mr. Ahmed announced he would be out of town from February 6 to February 11, 2005 and that both Mr. Bridges and Plaintiff would be in charge, as equals effectively promoting Mr. Bridges. Plaintiff was fearful at the prospect of having to work with Mr. Bridges without a Supervisor to prevent further threats and inappropriate conduct.

17. Mr. Bridges was newly scheduled to work during Plaintiff's shift while Mr. Ahmed was out of town, which had never before occurred. After telling Mr. Ahmed over the phone that she felt threatened, Mr. Ahmed expressed frustration at Plaintiff's continued complaints and told Plaintiff to leave the hotel.

18. On or around February 10, 2005, Plaintiff lodged a criminal complaint for sexual assault against Mr. Bridges.

19. On February 10, 2005, Plaintiff mailed a letter to Phillip Ruffin, Owner and CEO of Defendant Ruffin describing both, the events of January 17, 2005 and Mr. Ahmed's response.

20. Upon information and belief, on or about February 14, 2005, Mr. Bridges was terminated. However, after that date, Mr. Bridges continued coming to work at the Courtyard.

21. On February 14, 2005, Mr. Ahmed informed Plaintiff of a new work schedule that he knew would make working at Courtyard difficult for Plaintiff. Mr. Ahmed was continuously hostile toward Plaintiff making communicating with him extremely difficult.

22. On February 16, 2005 Mr. Ahmed's superior, Bill Shea, called Plaintiff to discuss her complaints of sexual harassment and retaliation. Mr. Shea asked Plaintiff to recount the events surrounding the incident and told her that Mr. Bridges had been fired and there would be no more problems.

23. After this telephone conference, Defendant Ahmed's behavior became drastically worse than it had been immediately after the complaint. He would scream at her about failing to accomplish duties he never assigned. Defendant Ahmed began to curtail communication with Plaintiff and exclude Plaintiff from meetings attended by other department managers, systematically eliminating Plaintiff's both perceived and actual authority in the hotel.

24. On March 11, 2005, Mr. Ahmed told Plaintiff she would need to inform him before leaving the hotel property for lunch during her shift, something never required of her before.

25. On March 14, 2005, Plaintiff sent an e-mail to Mr. Shea (copying defendant Ahmed) that Defendant Ahmed was retaliating against her for her complaints of sexual harassment.

26. On March 15, 2005, Defendant Ahmed terminated Plaintiff's employment effective immediately.

On September 1, 2006, Ruffin filed a Motion to Dismiss Gasper's claim for negligent hiring and retention, arguing that the claim was preempted by anti-discrimination and workers' compensation statutes. The court, following a hearing, granted the motion on December 7, 2006. Trial, before a jury, commenced on May 14, 2007. On May 22, 2007, the jury returned a verdict in favor of Ruffin on all remaining counts.

Additional facts will be set forth as they become necessary to our discussion of the issues.

1. The court's instructions.

Appellant contends that the court erred in giving the following jury instruction regarding her retaliatory discharge claim:

Plaintiff alleges that she has been retaliated against by defendant because of her opposition to alleged harassing conduct. To prevail on her claim of retaliation, the plaintiff must prove by a preponderance of the evidence that (1) the plaintiff opposed practices that she reasonably and in good faith believed constituted unlawful harassment; (2) that she was discharged; and (3) the plaintiff's opposition to harassing conduct was a determining factor in the decision to discharge her.

(Emphasis added).

Our review of a trial court's decision whether to give a requested jury instruction is conducted under an abuse of discretion standard. Thompson v. State, 393 Md. 291, 311, 901 A.2d 208 (2006) (citations omitted).

Gasper argues that the circuit court erroneously elevated her burden of proof by instructing the jury that her burden was to prove that the exercise of her protected activity—reporting sexual harassment-was the "determining factor" in her discharge. She posits that the correct standard of proof was whether her protected behavior was a "motivating factor" in the decision to discharge her.

Discussions of the standard for proving employment discrimination under Title VII of the United States Code are instructive. In a plurality decision, in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), Justice Brennan, writing for the plurality, stated that

when a plaintiff proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account.

Id. at 258, 109 S.Ct. 1775 (emphasis added).

The "motivating factor" test was later ratified by a unanimous Supreme Court decision in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). In Costa, the Court concluded, "In order to obtain an instruction under [Title VII] § 2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that `race, color, religion, sex, or national origin was a motivating factor for any employment practice.'" Id. at 101, 123 S.Ct. 2148 (emphasis added).

Ruffin argues that Price Waterhouse and Costa addressed only "mixed-motive" cases of discrimination, attempting to distinguish...

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