Lee v. Denro, Inc., 1198

• Decision Date: 01 September 1991
• Docket Number: No. 1198,1198
• Citation: 605 A.2d 1017,91 Md.App. 822
• Parties: , 126 Lab.Cas. P 57,549, 7 IER Cases 720 Won Gee LEE v. DENRO, INC
• Court: Court of Special Appeals of Maryland

Page 822

91 Md.App. 822

605 A.2d 1017, 126 Lab.Cas. P 57,549,

7 IER Cases 720

Won Gee LEE v. DENRO, INC.

No. 1198 Sept. Term, 1991.

Court of Special Appeals of Maryland.

May 7, 1992.

James L. Kelley, Rockville, for appellant.

David C. Driscoll, Jr. (Brian G. Kim and Stein, Sperling, Bennett, De Jong, Driscoll, Greenfeig & Metro, P.A., on the brief) Rockville, for appellee.

Argued before MOYLAN, ALPERT and MOTZ, JJ.

MOTZ, Judge.

The single question presented by this appeal is whether an at will employee may sue her employer for wrongful or abusive discharge because she was fired when she "disputed the company's test procedures" in the presence of an inspector from the Federal Aviation Administration (FAA). Since the allegations in the employee's complaint do not demonstrate that she was discharged in "violation of a clear mandate of the public policy of this State," Adler v. American Standard Corp., 291 Md. 31, 44, 432 A.2d 464 (1981), we affirm the order of the Circuit Court for Montgomery County (Miller, J.) dismissing the complaint for failure to state a claim.

(i)

Appellant, Won Gee Lee ("Lee"), was employed as an at will employee, a systems test engineer, by appellee, Denro, Inc. ("Denro"), from August 28, 1978 until April 23, 1990. Denro specializes in the development, manufacture, and service of electronic systems communications equipment; among the chief customers of Denro's testing equipment is the FAA. Lee's responsibilities included testing and trouble shooting in Denro's systems testing department. According to her complaint, Lee was "conscientious in the performance of her duties," and always followed prescribed "testing procedures." From time to time, Lee brought deviations from these procedures by other employees to their attention, or to the attention of her supervisors. (While Lee uses these terms throughout the complaint, she does not describe the "testing procedures," nor does she describe in what ways the "testing procedures" were "deviated from.")

On April 20, 1990, Lee was assigned to work with Hai Tran ("Tran"), another Denro employee, to perform the final two tests on a communications system designed for use by air traffic controllers. Lee alleges that she "did not have a good opinion of Tran's work." She further alleges that on unspecified earlier occasions, she was working with Tran "when he deviated from a prescribed procedure." On one occasion, an FAA inspector was present and Lee pointed out the alleged deviation from procedure in front of the inspector who, according to the complaint, agreed with her.

On April 20, Tran was to have the lead responsibility in conducting the remaining two tests and Lee was assigned to assist Tran by recording data as he performed the tests. Lee "noted that [Tran] sometimes was not following the testing procedures prescribed in Denro manuals. He seemed not to know what he was doing, and to be guessing without consulting the manuals." When the director of the manufacturing department, Jeff Clute, came into the testing area, Lee brought Tran's alleged departure from procedures to his attention and asked to be transferred to another assignment. Clute denied her request for transfer, and told her "to take up her problem with her immediate supervisor." Clute also told her that the testing assignment on which Tran and Lee were working had to be "finished as soon as possible." Lee does not allege that she subsequently asked her immediate supervisor for a transfer.

Rather, she simply alleges that an accelerated test schedule was then implemented, requiring that she work the next day, Saturday, April 21, 1990, with Tran. According to the complaint, Lee and Tran "were to demonstrate to the FAA inspector compliance with the remaining two tests." Prior to the demonstration, Lee alleges that she smelled "the resistor burning in the JAX channel" and that she knew "this meant that Tran had put a jumper in the wrong place." Lee asserts that Tran was aware of his mistake and said to her, "in substance, 'Shut your mouth! Don't tell the boss! Don't tell the inspector! Don't tell the FAA!' " She further alleges that Tran asked her to replace the burned resistor and she refused. Tran then made the adjustment of the jumper and replaced the resistor. Only after these adjustments were made, according to Lee's complaint, did the FAA inspector come to the testing area. The demonstration was then performed successfully, and the system passed the next-to-last test. One more test remained, which, due to an unanticipated system failure, could not be performed that day.

On the following Monday, April 23, 1990, Denro gave Lee a letter advising her that she was terminated, effective immediately, because:

... You jeopardized the completion and results of a factory acceptance test of one of Denro's FAA systems when you disputed the company's test procedures. You did this in the presence of the customer (FAA representative). His concern prompted further investigation which revealed that on the preceding day you had been informed by Jeff Clute that testing had to go on as scheduled. Your actions constitute[d] gross misconduct and cannot be accepted.

In addition, Lee alleges that "[o]n information and belief," as a result of alleged, unspecified difficulties "in meeting FAA safety standards ... [t]he FAA's level of confidence in quality assurance and control at Denro was below expected levels." She asserts that "[w]hen the FAA first assigned resident inspectors to the Denro facility" her immediate supervisor instructed his subordinates "to bring their problems to him" and that "in context" this meant the supervisor "was clearly implying that employees were not to discuss any safety concerns with FAA inspectors." Lee further asserts that her supervisor's directive to bring problems to him reflects Denro's alleged policy of "prohibiting its employees from raising safety concerns with the FAA, particularly FAA resident inspectors." She does not assert any pattern of stifling conduct by Denro. Finally, Lee alleges that Denro's termination of her employment contravened "a clear mandate of United States public policy: promotion of maximum achievable safety in air transportation " (emphasis in original). Specifically, she asserts that "Denro's conduct, as alleged herein" violated two federal criminal statutes, 18 U.S.C. §§ 1001 and 1505.

The circuit court found the facts alleged by Lee to be insufficient to state a cause of action for wrongful termination in accordance with the principles set forth by the Court of Appeals in Adler v. American Standard Corporation, supra. The court below held, "This is an internal dispute [between] the employer and employee. Given that fact, the Court is of the opinion that Counts 1 and 2 fail to state a cause of action." ¹

Because Lee's suit against Denro was disposed of on a motion to dismiss, we must assume the truth of all well-pleaded facts in her complaint, as well as inferences which may reasonably be drawn from those well-pleaded facts. Wimmer v. Richards, 75 Md.App. 102, 105, 540 A.2d 827 (1988); see also Flaherty v. Weinberg, 303 Md. 116, 136, 492 A.2d 618 (1985). If any material facts alleged in Lee's complaint tend to support her right to recover, the order to dismiss must be reversed; we limit our consideration, however, to allegations of fact and the inferences deducible from them, and not "merely conclusory charges." Parker v. The Columbia Bank, 91 Md.App. 346, 604 A.2d 521 (1992); Yousef v. Trustbank, 81 Md.App. 527, 536, 568 A.2d 1134 (1990) (quoting Berman v. Karvounis, 308 Md. 259, 265, 518 A.2d 726 (1987)).

(ii)

This case presents the "familiar common-law problem of deciding where and how to draw the line between claims that genuinely involve the mandates of public policy and are actionable, and ordinary disputes between employee and employer that are not." Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385, 387 (1980). Prior to Adler, Maryland strictly adhered to the general common law rule that, absent a statutory or contractual obligation to the contrary, either an employer or an employee may terminate the employment relationship for any or no reason. See, e.g., State Comm'n on Human Rel. v. Amecom Div., 278 Md. 120, 126, 360 A.2d 1 (1976). In Adler, the Court of Appeals recognized, for the first time, a "narrow exception" to this rule, holding that an employee who has been "discharged in a manner that contravenes public policy" may "maintain a cause of action for abusive or wrongful discharge against his former employer." 291 Md. at 36-37, 432 A.2d 464. Maryland thus joined a growing number of states which have adopted a "public policy exception" to ordinary notions of at will employment. See generally, Comment, Protecting Employees At Will Against Wrongful Discharge: The Public Policy Exception, 96 Harv.L.Rev.1931 (1983). See also Adler, supra, 291 Md. at 36, 432 A.2d 464 (discussing general approaches to abusive discharge tort).

When recognizing a public policy exception to the general rule governing at will employment, Maryland also confronted, as other states have, the difficulty in identifying what constitutes a "public policy," the violation of which amounts to a cause of action against an employer by the discharged employee. See Prince v. Rescorp Realty, 940 F.2d 1104, 1107 (7th Cir.1991) ("Determining what is clearly mandated public policy is difficult; indeed, the concept 'has been called the Achilles heel of the principle underlying the tort of retaliatory discharge' " (quoting Hicks v. Resolution Trust Corp., 736 F.Supp. 812, 815 (N.D.Ill.1990)). Generally, "public policy" has been defined as "that principle of law which holds that no one can lawfully do that which tends to be injurious to the public or against the public good." Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, 871 (Mo.App.1985).

In attempting to be more specific, the Adler court acknowledged that " 'jurists to this day...