Porterfield v. Mascari

• Decision Date: 08 May 2003
• Docket Number: No. 14,14
• Citation: 823 A.2d 590,374 Md. 402
• Parties: Deborah PORTERFIELD v. MASCARI II, INC.
• Court: Maryland Court of Appeals

823 A.2d 590

374 Md. 402

Deborah PORTERFIELD v. MASCARI II, INC.

No. 14, Sept. Term, 2002.

Court of Appeals of Maryland.

May 8, 2003.

Judith S. Stainbrook, Westminster, for petitioner.

Marc S. Levine (Handler & Levine, LLC, Bethesda, Diane A. Seltzer, Washington, DC, on brief), for respondent.

Deborah Thompson Eisenberg, Public Justice Center, Stephen H. Sachs, of counsel, (Brief of Public Justice Center, CASA of Maryland, D.C. Employment Justice Center, Legal Aid Bureau, Maryland Disability Law Center), Baltimore, Amicus Curiae. 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. Respondents filed a Motion to Dismiss which was granted by the Circuit Court. Porterfield appealed the judgment to the Court of Special Appeals which affirmed. We granted certiorari on Porterfield's petition to resolve the following rephrased question:³ Is it a violation of public policy sufficient to support a wrongful discharge action in Maryland when an employer fires an at-will employee for stating her intent to seek advice from legal counsel before responding to an adverse employment evaluation? 369 Md. 179, 798 A.2d 551 (2002). We shall affirm the judgment of the Court of Special Appeals.

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 received all "above average" ratings and Mascari additionally commented that Porterfield was a "tremendous asset" to Home Instead.

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.

On the following day, Tuesday, 31 August, a scheduled day-off for Porterfield, she allegedly phoned Elseroad and stated, "[d]ue to the seriousness of the libel contained in the document, I have been advised to seek counsel before formally responding." She expressed her hope to complete a response by that Friday, 3 September, but allowed as how it might take until Monday, 6 September, to complete a response. Later on 31 August, Mascari phoned Porterfield and told her that she was fired.⁸

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 alleged that 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." Porterfield contends that Mascari discharged her because she knew the grounds of the warning report were false and feared that Porterfield would retain a lawyer and sue her for defamation, or alternatively, that Mascari did not want to work with an employee who had consulted an attorney regarding a work-related dispute.

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 abusive discharge of an at-will employee may lie `when the motivation for the discharge contravenes some clear mandate of public policy.'" Porterfield further contended that a plaintiff may bring an action for abusive discharge when the plaintiff is fired in violation of a public policy mandate for which no statutory remedy exists. Essential to her argument was her assertion that there existed in Maryland a strong public policy favoring access to legal counsel and that Respondents' actions violated this policy. Petitioner also placed great emphasis on cases from Iowa and Ohio that recognized "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 v. Anderson Concrete Co., 99 Ohio App.3d 254, 650 N.E.2d 488 (1994). See Thompto v. Coborn's Inc., 871 F.Supp. 1097 (N.D.Iowa 1994)

.

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 policy and the...