Makovi v. Sherwin-Williams Co., SHERWIN-WILLIAMS

CourtCourt of Appeals of Maryland
Citation316 Md. 603,561 A.2d 179
Decision Date26 July 1989
Docket NumberSHERWIN-WILLIAMS,No. 66,66
Parties, 59 Fair Empl.Prac.Cas. (BNA) 1651, 58 USLW 2100, 4 IER Cases 1364 Carolyn M. MAKOVI v. TheCOMPANY. Sept. Term 1988.

Page 603

316 Md. 603
561 A.2d 179, 59 Fair Empl.Prac.Cas. (BNA)
1651, 58 USLW 2100,
4 IER Cases 1364
Carolyn M. MAKOVI
No. 66 Sept. Term 1988.
Court of Appeals of Maryland.
July 26, 1989.
Motion for Reconsideration Denied Sept. 7, 1989.

Page 604

Benjamin Lipsitz, Baltimore, for petitioner.

Barry Bach (Antonio R. Lopez, Smith, Somerville, & Case, all on brief) Baltimore, for respondent.

Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

Page 605


In this appeal we shall hold that an abusive discharge claim does not lie. The plaintiff alleges that her dismissal from employment was motivated by sex discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. [561 A.2d 180] §§ 2000e to 2000e-17 (1982) and of Md.Code (1957, 1986 Repl.Vol.), Art. 49B, §§ 14-18. Our holding rests not on any legislative preemption but on the nature of the tort. Abusive discharge is inherently limited to remedying only those discharges in violation of a clear mandate of public policy which otherwise would not be vindicated by a civil remedy.

Petitioner, Carolyn M. Makovi (Makovi), was employed on an at-will basis as a chemist at a paint factory operated in Maryland by respondent, The Sherwin-Williams Company (Sherwin-Williams). In August 1983 Makovi learned that she was pregnant. On October 10, 1983, she was informed by Sherwin-Williams that "she could not work at her job as long as she was pregnant" and "that her pay and her medical benefits would stop until she became disabled because of her pregnancy."

Makovi filed a complaint with the Federal Equal Employment Opportunity Commission (EEOC). The EEOC, on December 5, 1985, determined that there was not "reasonable cause to believe" that Makovi was the victim of sex discrimination and notified her of her right to file an action under Title VII in the United States District Court. Instead, Makovi filed suit for abusive discharge in the Circuit Court for Baltimore City, alleging that she desired to and was fully capable of continuing to work from October 10, 1983, until April 12, 1984, the date her baby was born. She further alleged that Sherwin-Williams discharged her

"acting on the pretext that it was doing so because plaintiff's removal from her work was required by her physician because of her pregnancy, when in fact it was not, and/or acting on some other pretextual basis and/or some policy basis of its own, excluded her from her work,

Page 606

required her to leave her work and effectively terminated her employment on and as of October 10, 1983."

Makovi returned to work on June 14, 1984. 1 She asserted that the temporary discharge violated the public policy embodied in Art. 49B and Title VII. 2

Sherwin-Williams filed a motion to dismiss asserting that "Maryland does not recognize a common law cause of action for abusive or wrongful discharge where there is an available statutory remedy." The circuit court granted the motion. 3 The Court of Special Appeals affirmed. Makovi v. Sherwin-Williams Co., 75 Md.App. 58, 540 A.2d 494 (1988). 4 We granted certiorari to determine the important issue involved. 313 Md. 572, 546 A.2d 490 (1988).

In order to present the legal positions of the parties, some background should be reviewed briefly. Title VII of the Civil Rights Act of 1964 was enacted by Congress "to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin." Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147, 155 (1974). The effective date of Title VII was July 2, 1965. Pub.L. No. 88-352, § 716, 78 Stat. 253,

Page 607

266 (1965). Employers with fifteen or more employees are subject to Title VII. See 42 U.S.C. § 2000e(b).

The EEOC was created "to prevent any person from engaging in any unlawful employment practice as set forth in section [561 A.2d 181] 2000e-2 or 2000e-3...." § 2000e-5(a). The EEOC performs this function by "informal methods of conference, conciliation, and persuasion," or by civil action in the United States District Court. § 2000e-5(b), (f). Upon a finding of an unlawful employment practice, the court may enjoin the employer's actions, reinstate the employee, award up to two years back pay, or "order such affirmative action as may be appropriate[.]" § 2000e-5(g). 5 If the EEOC determines that there is no reasonable cause or basis for an allegation of discrimination, it notifies the employee making the claim of his or her right to bring a civil action in the United States District Court. See 29 C.F.R. § 1601.28(b)(3)(i) (1988).

The General Assembly of Maryland responded to Title VII by enacting the Maryland Fair Employment Practices Law. Ch. 717 of the Acts of 1965. In it, the Legislature declared that the policy of Maryland is to "assure all persons equal opportunity in receiving employment ... regardless of race, color, religion, ancestry or national origin, sex, [or] age...." Art. 49B, § 14. The Maryland Fair Employment Practices Law became effective July 1, 1965--the day before the effective date of Title VII. Ch. 717 of the Acts of 1965, § 2.

Like its federal counterpart, the original version of the Maryland statute declared discriminatory employment practices to be unlawful. See Art. 49B, § 16. It provided for limited enforcement through an administrative agency, now the Human Relations Commission (HRC) (then entitled "Interracial Commission"). In 1965 enforcement of Art. 49B

Page 608

did not include any monetary relief. See Gutwein v. Easton Publishing Co., 272 Md. 563, 325 A.2d 740 (1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 673 (1975). Power to award back pay of up to two years in connection with an order of reinstatement or hiring was conferred on the HRC by Ch. 937 of the Acts of 1977. See Art. 49B, § 11(e).

Four years later this Court initially recognized the tort of abusive discharge in Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981). The allegations in Adler were that the discharge was motivated by the plaintiff's refusal to conceal or participate in accounting and tax irregularities and in commercial bribery.

The instant case asks us to decide the legal effect of the recognition of abusive discharge when superimposed on the preexisting framework of anti-discrimination legislation. Makovi's position is that abusive discharge will lie whenever the motivation for the discharge is contrary to a clear mandate of public policy. She submits that Adler placed no other limitations or requirements on the tort. Under Makovi's analysis Title VII and Art. 49B have no effect on her utilizing the tort to vindicate the alleged wrong because those statutes do not preempt her independent tort remedy. In her view "[w]hether called preemption, or preclusion, or bar, or otherwise identified, the issue here is purely and simply preemption vel non." Petitioner's Reply Brief at 4.

From that premise Makovi proceeds to demonstrate that the statutes do not preempt the tort. Title VII expressly preserves state remedies. 6 Further, we have held that Art. 49B does not preempt, by occupying the field, local prohibitions against employment discrimination. See National

Page 609

Asphalt Pavement Ass'n v. Prince George's County, 292 Md. 75, 437 A.2d 651 (1981). In Maryland-Nat'l Capital Park & Planning Comm'n v. Crawford, 307 Md. 1, 511 A.2d 1079 (1986) we held that a State employee claiming race discrimination need not exhaust remedies under Title VII before suing under 42 U.S.C.[561 A.2d 182] § 1983 and that Art. 49B does not establish primary jurisdiction in the HRC prior to a plaintiff's asserting a claim which is independent of Art. 49B. Makovi concludes that she "has satisfied the sole condition imposed by this Court for assertion of that independent action, since she has alleged that the motivation for her discharge contravened clear mandates of public policy...." Petitioner's Brief at 34.

The respondent's principal argument is that abusive discharge does not lie where the public policy sought to be vindicated by the tort is expressed in a statute which carries its own remedy for vindicating that public policy. Sherwin-Williams does not argue that the General Assembly in 1965 or 1977 intended to preclude a tort which did not then exist and does not argue that the General Assembly intended to preclude or preempt any and all remedies arising out of facts constituting a violation of Art. 49B. In addition, Sherwin-Williams submits that the anti-discrimination goal of the allegedly applicable statutes and the remedy legislatively created to achieve that goal together make up the public policy. In the employer's view, Makovi seeks to divorce the statutory remedy from the goal and, in the name of achieving the goal, enlarge the remedy for a statutory violation to full compensatory and punitive damages in tort.

We agree with Sherwin-William's analysis.


The limited nature of the abusive discharge tort follows logically from the structure of our opinion in Adler. We started with the common law rule that at-will employment "can be legally terminated at the pleasure of either party at any time." 291 Md. at 35, 432 A.2d at 467. We then

Page 610

referred to statutory exceptions engrafted upon the terminable at-will doctrine and specifically referred to Art. 49B's prohibition against discriminatory discharge from employment as an example of a statutory exception. Id. Putting statutory exceptions to the side, we next turned to judicial exceptions which had been recognized in other states. We noted that some courts had constructed a contract remedy by implying a covenant of good faith and fair dealing in all at-will employments. Id. at 36-37, 432 A.2d at 467-68....

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