Moniodis v. Cook

• Decision Date: 01 September 1984
• Docket Number: No. 883,883
• Citation: 494 A.2d 212,64 Md.App. 1
• Parties: , 119 L.R.R.M. (BNA) 3556, 1 IER Cases 441 Anthony MONIODIS, et al., v. Marguerite COOK, et al. ,
• Court: Court of Special Appeals of Maryland

Page 1

64 Md.App. 1

494 A.2d 212, 119 L.R.R.M. (BNA) 3556,

1 IER Cases 441

Anthony MONIODIS, et al., v. Marguerite COOK, et al.

No. 883, Sept. Term, 1984.

Court of Special Appeals of Maryland.

June 20, 1985.

M. Albert Figinski, Baltimore (Arnold M. Weiner, Julie C. Janofsky, Melnicove, Kaufman, Weiner & Smouse, P.A., Baltimore, James R. Eyler, Richard P. Kidwell and Miles and Stockbridge, Towson, on the brief), for appellants Rite-Aid and Moniodis.

Read K. McCaffrey, Baltimore (Christopher S. Lambert and Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on the brief), for appellant Spevock.

Stephen D. Langhoff and Nedda I. Pray, Baltimore (Doyle & Langhoff, Baltimore, on the brief), for appellees.

Argued before WEANT and BLOOM, JJ., and ALBERT T. BLACKWELL, Jr., Associate Judge of the Seventh Judicial Circuit, Specially Assigned.

WEANT, Judge.

The appellees, Marguerite Cook, Dorothy Ebner, Diane Ruggiero Leicht, and Iris Torres, brought this action in the Circuit Court for Baltimore City against their former employer, appellant Rite-Aid of Maryland, Inc. (Rite-Aid), and certain Rite-Aid officers, including appellants Anthony Moniodis and James H. Spevock. The appellees alleged that Rite-Aid required groups of employees to submit to polygraph examinations regarding inventory shortages or "shrinkage" at certain Rite-Aid Stores, thereby violating Md.Ann.Code art. 100, § 95 (1979). ¹ They further claimed that Rite-Aid enforced this policy, acting through Spevock and Moniodis, among others, by firing recalcitrant employees outright or by creating working conditions calculated to force these employees to resign. The appellees sought compensatory and punitive damages under two theories, "abusive" or wrongful discharge and intentional infliction of emotional distress. Following trial in January, 1984, a jury found in favor of the appellee employees on both theories and awarded compensatory and punitive damages. The docket entries indicate that judgments were entered as follows:

6 March 1984 Judgment on verdicts absolute in favor of the plaintiff (Diane Ruggiero Leicht) for the sum of $100,000.00 compensatory damages as against all defendants; punitive damages in the amount of $1,000,000 (One Million) as against Defendant (Rite Aid of Maryland); $750.00 as against Defendant James Spevock; and $500.00 as against Defendant, Anthony Moniodis. In the case of Plaintiff, Marguerite Cook for the sum of $300,000.00 Compensatory damages as against all Defendants, punitive damages in the amount of $1,000,000 (One Million) as against Defendant, Rite Aid of Maryland; $750.00 as against Defendant, James Spevock; and $500.00 as against Defendant, Anthony Moniodis. In the case of Plaintiff, Iris Torres for the sum of $200,000 Compensatory damages as against all Defendants; punitive damages in the amount of $1,000,000 (One Million) as against Defendant, Rite Aid of Maryland; $750.00 as against Defendant, James Spevock; and $500.00 as against Defendant, Anthony Moniodis. In the case of Plaintiff, Dorothy Ebner for the sum of $300,000 Compensatory damages as against all Defendants, punitive damages in the amount of $1,000,000 (One Million) as against Defendant, Rite Aid of Maryland; $750.00 as against Defendant, James Spevock; and $500.00 as against Defendant Anthony Moniodis, all with interest from date and costs of suit.

On appeal, Rite-Aid and Moniodis present the following myriad of questions for our review:

1. Did the trial court err in submitting to the jury the issue of punitive damages based on "abusive discharges" which occurred in 1979 and 1980 when the Maryland courts did not acknowledge a cause of action for abusive discharge until July 16, 1981?

2. Did the trial court err in submitting the abusive discharge counts to the jury?

3. Did the trial court err in failing to grant a directed verdict for Defendant[s] Moniodis [and Spevock] as to the abusive discharge counts?

4. Did the trial court err in denying Appellants' motion for directed verdict on the intentional infliction of emotional distress counts because there was insufficient evidence of severe emotional distress and extreme and outrageous conduct?

5. Did the trial court err when it denied Appellants' motion for directed verdicts as to Appellees' claims for punitive damages because there was insufficient evidence of malicious conduct?

6. Was it reversible error for the trial court to allow the jury to consider against Appellant Rite Aid a former Assistant Attorney General's hearsay account of a former Rite Aid employee's alleged admissions?

7. Did the trial court commit reversible error in its evidentiary rulings allowing, but limiting, evidence of the prior Attorney General's investigation and suit?

8. Did the trial court err when it:

(a) instructed the jury that an award could include damages for "future loss of wages and benefits" when there was no evidence of such loss;

(b) instructed the jury that an award of compensatory damages "must include" damages for mental anguish, fright and other matters;

(c) refused to instruct that Appellees, in order to recover for intentional infliction of emotional distress, had to prove that each of them had a severely disabling emotional response to the tortious conduct; and

(d) refused to instruct that Maryland's polygraph statute did not prohibit a transfer of, or reduction in hours for, an employee who refused to take a polygraph test?

9. Did the lower court abuse its discretion when it failed to set aside verdicts which it acknowledged to have been influenced by passion?

Appellant Spevock puts forth the following additional question; others that restate the above issues are omitted.

[10.] Did the Court err in denying Spevock's Motion in Limine to exclude evidence of Spevock's communications with Assistant Attorney General Redmond?

1. and 2.

The appellants argue that the trial court should not have submitted the wrongful discharge counts to the jury. In the alternative, they contend that the trial court should not have permitted the jury to consider punitive damages under the wrongful discharge counts.

In a case of first impression, the Court of Appeals recognized an employee's cause of action for wrongful discharge as an exception to the general rule that an employment contract of indefinite duration may legally be terminated at any time and for any reason. Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981). The Adler Court stated that an "at will" employee may recover damages in tort or contract provided that the discharge violated some "clear mandate of public policy." 291 Md. at 43, 432 A.2d at 471. The Court also noted that such a mandate may come in many forms, including "legislative enactments, prior judicial decisions or administrative regulations." 291 Md. at 45, 432 A.2d at 472.

There was testimony at trial regarding the termination of each of the appellees which, if believed by the jury, demonstrated that Rite-Aid and its officers violated Md.Ann.Code art. 100, § 95. For example, appellee Leicht testified that Moniodis told her that he fired her because she refused to submit to a polygraph examination. There can be no question that the express legislative prohibition of this type of discharge satisfied the "clear mandate" requirement. Indeed, as noted in Adler, 291 Md. at 38-40, 432 A.2d at 468-70, other courts have recognized wrongful discharge actions where the discharge did not violate a criminal statute, but was in retaliation for the employee's refusal to participate in an illegal scheme. E.g., Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 610 P.2d 1330, 164 Cal.Rptr. 839 (1980). The statute here is more explicit, condemning the very conduct upon which the appellees' cause of action is based.

The appellants maintain that the polygraph law was not violated in the cases of appellees Cook, Ebner, and Torres. According to appellants, they were not fired but were simply given changes in established working hours, and/or transfers to distant stores, or other changes in working conditions. ² We recently held that a constructive discharge may form the basis for a wrongful discharge action. Beye v. Bureau of National Affairs, 59 Md.App. 642, 653, 477 A.2d 1197, 1203, cert. denied, 301 Md. 639, 484 A.2d 274 (1984). Under Beye, the proper approach is "discard form for substance" and consider whether the terminations, though perhaps formally effected by resignations, were in fact coerced by the employer. Id., 59 Md.App. at 649, 477 A.2d at 1201. Appellants emphasize the absence of any express reference to constructive discharge in the polygraph law, but in our view this does not warrant abandonment of the analysis in Beye.

The Beye court explained that "the applicable standard to determine if the resignation is, in effect, a constructive discharge, is whether the employer has deliberately caused or allowed the employee's working conditions to become so intolerable that a reasonable person in the employee's place would have felt compelled to resign." 59 Md.App. at 653, 477 A.2d at 1203. Thus, constructive discharge is evaluated under both objective and subjective standards.

In the case at hand, former supervisory employees of Rite-Aid described a general company policy to impose such hour and location conditions as would make continued employment simply fruitless for those who refused polygraphs. One former manager said he was told, with regard to an employee other than the appellees, "[w]ell, we can't fire her outright, but what I want to do is cut her hours back until there is no longer any value for her to work here. She will become frustrated." It is precisely this subterfuge the constructive discharge doctrine is intended to thwart. There was ample evidence that Rite-Aid intended to cause Cook, Ebner, and Torres to resign or to refuse to accept their new working conditions, so that the jury may quite properly have concluded that the subjective element...