Roberts v. Citicorp Diners Club, Inc., Civ. No. K-84-3073.

• Decision Date: 09 November 1984
• Docket Number: Civ. No. K-84-3073.
• Citation: 597 F. Supp. 311
• Parties: Fred M. ROBERTS v. CITICORP DINERS CLUB, INC. a/k/a the Diners' Club, Inc.
• Court: U.S. District Court — District of Maryland

597 F. Supp. 311

Fred M. ROBERTS v. CITICORP DINERS CLUB, INC. a/k/a the Diners' Club, Inc.

Civ. No. K-84-3073.

United States District Court, D. Maryland.

November 9, 1984.

Ronald A. Karp and Chaikin, Karp & Greenberg, Washington, D.C. and Barbara E. Palmer, Upper Marlboro, Md., for plaintiff.

J. Hardin Marion and Valerie A. Zimkus, Baltimore, Md., for defendant.

FRANK A. KAUFMAN, Chief Judge.

After plaintiff, apparently a citizen of the State of Maryland, commenced this action in the Circuit Court for Prince George's County, Maryland, defendant, a New York corporation with its principal place of business in the State of Illinois, timely removed this case to this court and plaintiff timely filed a motion to remand to the state court. Plaintiff alleges that during plaintiff's employment by defendant, plaintiff was injured, successfully sought workmen's compensation benefits pursuant to Maryland law, and was thereafter wrongfully discharged by defendant in retaliation for plaintiff's obtaining such benefits. Defendant's removal petition rests upon diversity of citizenship and upon defendant's status as a noncitizen of Maryland. 28 U.S.C. § 1441(a) and (b).¹ Plaintiff's remand motion is stated pursuant to 28 U.S.C. § 1445(c) which provides:

(c) A civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States.

The question presented in this case is whether the within cause of action stated by plaintiff is one "arising under the workmen's compensation laws." That question requires analysis, first, of Maryland law, and then of section 1445(c).

I.

Md.Ann.Code art. 101, § 39A (1979 Repl. Vol.) reads as follows:

(a) An employee entitled to benefits under this article may not be discharged from employment solely because he files a claim for compensation under this article.

(b) Any person violating this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than $500 or imprisoned not more than 12 months, or both, in the discretion of the court.

While section 39A(a) prohibits the type of retaliatory discharge alleged herein by plaintiff, no section of Maryland's statutory law provides any civil remedy to a discharged employee. Plaintiff, however, asserts such a right pursuant to Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981) (Adler I). In Adler I, Chief Judge Murphy, writing for the Court of Appeals of Maryland, considered two questions certified by Judge Harvey of this Court, namely—

(1) Is a cause of action for abusive discharge recognized under the substantive law of the State of Maryland?

(2) Do the allegations of the amended complaint, if taken as true, state a cause of action for abusive discharge under the substantive law of the State of Maryland? Judge Murphy answered "Yes" to question (1) and "No" to question (2). In so doing, Judge Murphy noted:

The common law rule, applicable in Maryland, is that an employment contract of indefinite duration, that is, at will, can be legally terminated at the pleasure of either party at any time. Citations omitted. Statutes enacted by many states have, however, engrafted exceptions upon the terminable at will doctrine that abrogate an employer's absolute right to discharge an at will employee for any or no reason. In Maryland, for example, under Maryland Code (1957, 1979 Repl.Vol.) Art. 49B, § 16(a)(1), it is unlawful for an employer to discharge any employee "because of ... race, color, religion, sex, age, national origin, marital status, or physical or mental handicap unrelated in nature and extent so as to reasonably preclude the performance of the employment ...."1

1 The absolute right of the employer to discharge an employee is inhibited by other Maryland statutes. See, e.g., Code (1957, 1979 Repl. Vol.) Art. 89, § 43 (employee may not be discharged for involvement in the enforcement of Maryland's Occupational Safety and Health Act); Art. 101, § 39A (unlawful to discharge an employee for filing a workmen's compensation claim); § 15-606, Commercial Law Article (1975, 1980 Cum.Supp.) (unlawful to discharge employee whose wages are subjected to attachment under certain circumstances); §§ 8-105, 8-401, Courts & Judicial Proceedings Article (1974, 1980 Repl.Vol.) (unlawful to discharge employee for time lost because of jury service).

291 Md. at 35, 432 A.2d 464 (emphasis supplied).

Then, after reviewing the case law in a number of jurisdictions, Judge Murphy wrote:

With few exceptions, courts recognizing a cause of action for wrongful discharge have to some extent relied on statutory expressions of public policy as a basis for the employee's claim. Courts holding that at will employees failed to state a cause of action, but recognizing implicitly or expressly that a cause of action would be recognized under proper circumstances, generally do so on the grounds that no clear mandate of public policy was contravened by the discharge.

291 Md. at 40, 432 A.2d 464.

Adler points to two sources of public policy. First, he contends that the misconduct of the Corporation's defendant's employees involving the payment of commercial bribes and the falsification of corporate records—the disclosure of which prompted his plaintiff's discharge—was in violation of the criminal law of the State, Md.Code (1957, 1976 Repl.Vol.) Art. 27, § 174. Second, he urges that practices such as commercial bribery and the falsification of corporate records are so clearly against public policy that he need not identify any statute or rule of law specifically prohibiting such improper and possibly illegal practices.

291 Md. at 43, 432 A.2d 464.

Before concluding (at 47, 432 A.2d 464) that "Maryland does recognize a cause of action for abusive discharge by an employer of an at will employee when the motivation for the discharge contravenes some clear mandate of public policy" but that Adler had not alleged such a cause of action, Judge Murphy also wrote:

As indicated, the Court has not confined itself to legislative enactments, prior judicial decisions or administrative regulations when determining the public policy of this State. We have always been aware, however, that recognition of an otherwise undeclared public policy as a basis for a judicial decision involves the application of a very nebulous concept to the facts of a given case, and that declaration of public policy is normally the function of the legislative branch. Citations omitted. We have been consistently reluctant, for example, to strike down voluntary contractual arrangements on public policy grounds.

291 Md. at 45, 432 A.2d 464.

After the Court of Appeals of Maryland filed its opinion in Adler I, Judge Harvey, in Adler v. American Standard Corp., 538 F.Supp. 572 (D.Md.1982) (Adler II), permitted plaintiff further to amend plaintiff's complaint (at 575) and wrote that "the second amended complaint is identical with the amended complaint in all respects except that plaintiff has now enumerated a number of federal and state statutes claimed to have been violated by defendant's agents. These are alleged to be instances of the clear mandate of public policy, the contravention of which was allegedly the motivation for plaintiff's discharge." Id. at 575. Judge Harvey concluded (at 578) that the said amended complaint "now recites with the requisite degree of specificity the manner in which certain statutes were offended so as to constitute a violation of the public policy of this State."

II.

The words "arising under" appear in a number of sections of Title 28 of the United States Code, including section 1331 which provides:

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

Those words also appear under particular grants of jurisdiction, as for example in sections 1337 (antitrust), 1338 (patents, etc.), 1340 (Internal Revenue, etc.), 1441(b) and 1445(c). The meaning of those words, as used in each of those statutory provisions, would appear to be the same. See 13 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3561, at 397 n. 28.

Whether a given case "arises under" federal law has produced much litigation and no clear bright-line test. The seminal case is Gully v. First National Bank in Meridian, 299 U.S. 109, 112-13 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936), in which Justice Cardozo stressed that a right under federal law must be an "element, and an essential one, of the defendant's cause of action" and that "a genuine and present controversy" involving federal law, and "not merely a possible or conjectural one, must exist." One leading commentator, Professor Mishkin, has suggested that "a substantial claim founded `directly' upon federal law" is required. Another leading writer, Professor Wright, has opted for a "pragmatic" approach that "recognizes that `the existing doctrines as to when a case raises a federal question are neither analytical nor entirely logical,' and that in the unusual case in which there is a debatable issue about federal question jurisdiction, pragmatic considerations must be taken into account." 13 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3562, at 414 (1975) (footnotes omitted) hereinafter cited as Wright & Miller; C. Wright, Law of Federal Courts 58 (1970 ed.).

In cases in which removal is based on the existence of a federal questions, "the federal courts always seek to ascertain the substantive underpinnings of plaintiff's cause of action." 14 Wright & Miller § 3734, at 736 (1976).

Hayes v. National Con-Serv, Inc., 523 F.Supp. 1034, 1035-36 (D.Md.1981) (footnotes omitted).

In the within case, the "underpinnings of the within plaintiff's cause of action" are the public policy remedy created by the Court of Appeals of Maryland in Adler I in order to permit an employee to recover damages in a civil case if he has been wrongfully...