HEADNOTES: Ruffin Hotel Corporation of Maryland, Inc. v. Gasper., No. 24, September Term, 2009
TORTS; "RETALIATORY DISCHARGE" ACTIONS; PLAINTIFF'S BURDEN OF PERSUASION: In a "retaliatory discharge" action in which the plaintiff is asserting that her employment was terminated by the defendant in retaliation for her opposition to a fellow employee's unlawful harassing conduct, because the plaintiff is required to prove that her opposition to the unlawful harassing conduct was a motivating factor in the decision to terminate her employment, the Circuit Court commits error if it instructs the jury that the plaintiff is required to prove that her opposition to the unlawful harassing conduct was a determining factor in the decision to terminate her employment.
TORTS; "NEGLIGENT HIRING AND RETENTION" ACTIONS; PREEMPTION:
A "negligent hiring and retention" claim asserted against the plaintiffs former employer, based upon the plaintiffs allegation that she had been assaulted by a fellow employee, is not preempted by federal law, by Maryland anti-discrimination statutes, or by the Maryland Workers' Compensation Act.
EVIDENCE; MARYLAND RULES 5-401, 5-402, 5-403, 5-404(b): Maryland Rule 5-404(b) is applicable only to evidence offered by the State against the defendant in a criminal case. In civil cases, whether the evidence at issue is offered by a plaintiff or by a defendant, the trial court must apply Maryland Rule 5-403 to the issue of whether a particular item of marginally relevant evidence should be excluded on the ground that the probative value of that evidence is substantially outweighed by the danger of unfair prejudice to the objecting party.
Bell, C.J.
Harrell
Greene
Murphy
Adkins
Barbera
Eldridge, John C., (Retired,
Specially Assigned),
JJ.
Opinion by Murphy, J.
From November 17, 2003 to March 15, 2005, Kathleen Gasper, Respondent/Cross-Petitioner (Respondent), was employed by Ruffin Hotel Corporation of Maryland, Inc., Petitioner/Cross-Respondent (Petitioner). The case at bar stems from the Respondent's decision to terminate the Petitioner's employment, and is now before this Court as a result of proceedings in the Circuit Court for Montgomery County and in the Court of Special Appeals. In Gasper v. Ruffin Hotel Corporation of Maryland, Inc., 183 Md. App. 211, 960 A.2d 1228 (2008), the Court of Special Appeals held that (1) the Respondent is entitled to a new trial on her "retaliatory discharge" claim on the ground that the Circuit Court delivered an erroneous jury instruction, (2) the Circuit Court erred in dismissing the Respondent's "negligent hiring and retention" ("negligent hiring/retention") claim, and (3) the Circuit Court did not abuse its discretion in granting the Petitioner's motion to exclude evidence of "prior bad acts" allegedly committed by the employee of the Petitioner who made the decision to terminate the Respondent's employment.
As neither party was entirely satisfied with the opinion of the Court of Special Appeals, both requested that this Court issue a Writ of Certiorari.
The Petitioner requests that we answer three questions:
(1) In retaliatory discharge claims brought under Maryland law, should juries be instructed that the plaintiff must prove that retaliation was a "determining factor," as opposed to a "motivating factor," in her termination?
(2) Is a negligent hiring and retention claim based upon alleged sexual harassment and a subsequent allegedly retaliatory discharge preempted by Maryland antidiscrimination statutes?
(3) Does the Maryland Workers' Compensation Act preempt a negligent hiring and retention claim brought by an employee against her employer[?]
The Respondent's Cross-Petition presents us with a fourth question:
Should evidence of the prior bad acts of a supervisor who assaulted, sexually harassed, and retaliated against other employees be admissible under Maryland Rule 5-404(b) in a civil case to show:
(A) motive/intent, a necessary element of a retaliation/discrimination cause of action? or
(B) knowledge/notice on the part of the employer, a necessary element of a negligent hiring/retention cause of action?
We granted both the Petition and the Cross-Petition. 408 Md 149, 968 A.2d 1064 (2009). For the reasons that follow, we answer "yes" to the Petitioner's first question, and "no" to the Petitioner's second and third questions. Rather than answer "yes" or "no" to the Respondent's question, because we are affirming the holdings that the Respondent is entitled to a new trial on her "retaliatory discharge" and negligent hiring/ retention claims, we shall discuss how the "prior bad acts evidence" issues should be resolved on remand.
The Respondent had initially sought an award of damages from both the Petitioner and Irman Ahmed, who made the decision to terminate the Petitioner's employment. The Petitioner's five count "AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL" included the following assertions:
COUNT III-NEGLIGENT HIRING AND
RETENTION AGAINST DEFENDANT RUFFIN
* * *
57. Prior to Mr. Ahmed's termination in September 2002, many employees had complained of Mr. Ahmed's abusive behavior including allegations of assault, battery, discrimination, sexual harassment and fear of retaliation.
57A. When considering Defendant Ahmed's rehire, it was foreseeable that he would retaliate against employees complaining of assault and not protect employees from assault or battery since, upon information and belief, he had been accused of, and terminated for such conduct. It was foreseeable that Defendant Ahmed would not prevent assaults and batteries upon female employees and would retaliate against employees who reported such conduct.
* * *
59. Defendant Ruffin had actual knowledge of Defendant Ahmed's retaliation. Plaintiff informed Mr. Shea that Defendant Ahmed was retaliating against her for her complaint yet Defendant Ruffin retained Defendant Ahmed in a supervisory and management position over Plaintiff and put him in charge of investigating Plaintiffs complaint of assault, battery and sexual harassment and discriminating.
* * *
63. Defendant Ruffin breached its duty by rehiring a General Manager with, upon information and belief, a proven history of sexual harassment, assault and battery, sexual discrimination and placing him in a supervisory role, responsible for addressing sexual harassment complaints.
64. Defendant Ruffin further breached its duty by allowing Defendant Ahmed to retaliate against Plaintiff after Defendant Ruffin became aware of the complaints and theretaliatory conduct. Upon Plaintiffs notifying Defendant Ruffin of the extreme and outrageous conduct by Mr. Ahmed, Defendant Ruffin intentionally permitted Ahmed to act extremely and outrageously toward Plaintiff.
* * *
COUNT IV-INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS BY DEFENDANT AHMED
* **
68. Defendant Ahmed's conduct toward Plaintiff was both intentional and reckless.
69. When Defendant Ahmed was rehired in 2004, he approached Plaintiff because he wanted to terminate people who had complained of Defendant Ahmed's improper conduct. Plaintiff was on notice that Mr. Ahmed would terminate someone for complaining of sexual harassment, assault, battery and discrimination.
70. After Plaintiff came to Defendant Ahmed for help, he humiliated her by rejecting her story and then by telling her that the corporate office was not taking her complaint seriously.
71. Defendant Ahmed placed Plaintiff in a position where he knew she would be exposed to a threatening and intimidating atmosphere. Defendant Ahmed refused to intervene after Plaintiff informed him of the inappropriate conduct. Defendant Ahmed allowed Mr. Bridges to enter Plaintiff's office and further harass and intimidate her with obscenities. At a critical point after Plaintiffs complaint, when she was extremely vulnerable, Defendant Ahmed left town creating an atmosphere of fear and intimidation at the hotel, where there was no supervisor to intervene on Plaintiff's behalf.
74. Defendant Ahmed systematically tried to force Plaintiff out of her job. He turned her co-workers against herand unfairly criticized her job performance. As a result of Mr. Bridges' termination, Defendant Ahmed threatened to rearrange Plaintiff's schedule to conflict directly with her other work and family responsibilities. The schedule change would also change the scope of Plaintiffs job duties.
* * *
WHEREFORE, Plaintiff Kathleen Gasper demands judgment against Defendant Irman Ahmed for Ninety-Four Thousand Six Hundred forty-five and ninety-nine centers ($94,645.99) in lost wages, Five Hundred Thousand Dollars ($500,000) in compensatory damages, and Five Hundred Thousand Dollars ($500,000) in punitive damages, with interest, costs and attorney's fees.
After the Circuit Court granted the Petitioner's motion to dismiss the Respondent's negligent hiring/retention claim, the Respondent filed a three count "SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL," in which--although Mr. Ahmed was identified as a defendant--the Respondent sought damages only from the Petitioner.1 The Second Amended Complaint included the following assertions:
7. Defendant Ruffin received multiple Complaints that Defendant Ahmed was assaulting, committing batteries against and sexually harassing his employees and they were afraid he would retaliate against them for filing such [] complaints.
7A. Upon information and belief, in September 2002, Defendant Ahmed was terminated from his position as General Manager at Courtyard for sexually harassingsubordinates and coworkers.
8. Defendant Ahmed was re-hired as General Manager of Courtyard on April 26, 2004, and is currently employed in that position.
9. Upon his rehire, Defendant Ahmed asked [the Respondent] to identify signatures on a letter complaining of Defendant Ahmed's sexual harassment, because he intended to terminate those employees.
10.
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