Sears, Roebuck and Co. v. Wholey

• Decision Date: 29 August 2001
• Docket Number: No. 1490,1490
• Citation: 779 A.2d 408,139 Md. App. 642
• Parties: SEARS, ROEBUCK AND CO., et al., v. Edward L. WHOLEY.
• Court: Court of Special Appeals of Maryland

779 A.2d 408

139 Md. App. 642

SEARS, ROEBUCK AND CO., et al., v. Edward L. WHOLEY.

No. 1490, Sept. Term, 1999.

Court of Special Appeals of Maryland.

August 29, 2001.

Karen A. Khan and Patrick F. Martin (Jackson, Lewis, Schnitzler & Krupman, on the brief), Washington, DC, for appellants.

James B. Hopewell (Patricia N. Drummond, Upper Marlboro, on the brief), Riverdale, for appellee. Argued before DAVIS, DEBORAH S. EYLER and KRAUSER, JJ.

DEBORAH S. EYLER, Judge.

After Sears, Roebuck and Co. ("Sears"), the appellant, terminated Edward L. Wholey, the appellee, from his position as Security Supervisor at the Sears store in Glen Burnie, Maryland, Wholey sued Sears and Paul Eiseman, a Regional Manager of Asset Protection Services for Sears, for wrongful discharge and defamation, among other claims. The case was tried before a jury, in the Circuit Court for Anne Arundel County, which returned a verdict against Sears on Wholey's wrongful discharge claim, in favor of Sears on the defamation claim, and in favor of Eiseman on both claims. The jury awarded Wholey $166,000 in damages.

From a judgment entered on that verdict, Sears appeals, presenting five questions for review. Four of the questions it presents raise a single legal issue: Whether, on the facts most favorable to Wholey, his termination violated a clear mandate of public policy. For the following reasons, we answer that question in the negative, and reverse the judgment.

FACTS AND PROCEEDINGS

Wholey was employed by Sears in its Glen Burnie store for 24 years. He began as a security officer in 1972, and within a year was promoted to Assistant Security Manager. In 1980, Wholey again was promoted, to Security Manager. Finally, in 1994, he became a Security Supervisor. From 1980 until Sears terminated his employment in 1996, Wholey's work involved investigating employee theft.

Beginning in 1973, Wholey also worked as a constable for the District Court of Maryland. In 1980, Wholey became a deputy sheriff for the Anne Arundel County Sheriff's Office. He still was working in that position as of the date of trial.

In 1994, a new store manager was hired at the Glen Burnie Sears. Around March of 1995, Wholey began to notice that the store manager sometimes would remove items of merchandise from store display areas and put them in his office. As far as Wholey could tell, the items then would "just disappear." Wholey did not see the store manager remove any of these items from his office or take any of them from the store without paying for them. Wholey suspected, however, that the store manager was stealing the merchandise.

In November 1995, Wholey noticed that the store manager had two pairs of pants, "one or two" sweaters, and a jacket-all Sears merchandise-in his office. The items all bore store price tags. Wholey checked the store's cash registers to see if the store manager had purchased any of the items. When he found no receipts reflecting purchases, Wholey suspected that the store manager was going to steal the items by wearing or carrying them out of the store. He contacted Eiseman, who was responsible for security at the Glen Burnie Sears, and told him of his suspicions. Eiseman suggested that Wholey use a van to perform surveillance on the store manager's office from an outside window. Wholey did so, but the view from the van was so limited that Wholey could not tell from his surveillance whether the store manager was removing, or had removed, any of the items of merchandise from his office.

Wholey reported to Eiseman that the surveillance from the van was inadequate and asked permission to enter the store manager's office at night to search it. Eiseman granted permission. On the night of November 29, 1995, Wholey entered and searched the store manager's office. He also searched a locked drawer in the office, which he opened with his fingernail. Wholey's search revealed some but not all of the merchandise that he earlier had seen in the office. He did not know what had happened to the missing items of merchandise. He acknowledged at trial that these items could have been returned to the display floor.

From November 30, 1995 through December 14, 1995, Wholey continued to observe the store manager's movements. During that time, he did not see the store manager remove any of the items from his office.

On December 15, 1995, Wholey learned that the store manager had made an inquiry about what time one of the security guards would be coming on shift. When he learned that, he suspected that the store manager was going to remove the items of merchandise in his office from the store early the next morning and take them without paying for them. Wholey contacted Eiseman, told him of his suspicions, and requested permission to install cameras in the ceiling of the store manager's office, to observe the store manager's actions.¹ According to Wholey, Eiseman gave him permission to install the cameras.

During the early morning hours of December 16, 1995, Wholey and Darlene Hill, the Security Manager for the Glen Burnie Sears, installed the cameras. Afterward, Hill went home and Wholey remained at the store.

Later that morning, but before the store manager arrived at work, Wholey called Eiseman and reported that the cameras had been installed. During this conversation, Wholey was watching the store's security cameras and noticed Sam Alexander, the District Store Manager and Eiseman's superior, enter the store. Wholey asked Eiseman whether he had told Alexander about the installation of the cameras in the store manager's office. Eiseman replied that he had not. Eiseman then ended the conversation with Wholey and called Alexander.

Sometime in the next two hours, Eiseman made a return call to Wholey and told him not to use the cameras in the store manager's office and to disable them. Eiseman explained that he had told Alexander and Thomas Peake, Sears's Human Resources Manger for the Northeast Region, about the cameras and they had ordered that the cameras not be used, because the store manager "deserve[d] more respect." Wholey complied with Eiseman's directive and disabled and removed the cameras. He discontinued his investigation of the store manager.

Throughout the time he was investigating the store manager, Wholey never saw the store manager commit the crime of theft (or any other crime). Also, at no time during the investigation did Wholey act in his capacity as a deputy sheriff for the Anne Arundel County Sheriff's Department.

On February 6, 1996, Wholey was terminated from his employment by Sears. Eiseman met with him that day and told him that Alexander and Peake had not approved of his handling of the investigation of the store manager (particularly, the installation of cameras in the store manager's office). When Eiseman asked Wholey to resign, Wholey refused, and then was fired. Seven months later, Wholey brought this suit against Sears and Eiseman, in the Circuit Court for Anne Arundel County.² Sears maintained that it terminated Wholey's employment because he mishandled security problems that occurred at the Glen Burnie store during a severe blizzard in January 1996. Wholey took the position that that was a pretext, and that the true reason for his firing was in retaliation for his investigating suspected theft by the store manager. In the posture in which this appeal presents itself, we shall assume that Sears discharged Wholey for his handling of the investigation of the store manager, as Wholey contended, and not for any alleged actions or inactions by him during the January 1996 blizzard.

With respect to the wrongful discharge claim, Sears filed a motion to dismiss, which was denied, and then a motion for summary judgment, which also was denied. In both motions, it argued that, assuming the facts as alleged and as later testified by Wholey in deposition, Wholey's termination from employment did not violate a clear mandate of public policy, and thus was not actionable. See Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981) ("Adler I"). Sears advocated that position again during trial, when it moved for judgment at the close of Wholey's case and again at the close of the entire case. Each time Sears raised this issue, Wholey responded by arguing that the public policy of Maryland favors the investigation and prosecution of crimes and that when Sears terminated him for investigating suspected theft by the store manager, it did so in contravention of that clear mandate of public policy.

The trial court agreed with Wholey on the public policy issue. After denying Sears's motions for judgment, it instructed the jury as follows, over Sears's objection:

[I]n order to recover for wrongful discharge, [Wholey] must show, one, an atwill employment relationship; two, that he was terminated by the employer and that the discharge was contrary to a clear mandate of public policy....

Now, there is a clear public policy in Maryland favoring the investigation and prosecution of criminal offenses.

If you find that the motivation of [Sears] in firing [Wholey] was in retaliation to [Wholey's] investigatory activities, then that motivation would contravene the stated public policy of Maryland. You must also find that [Wholey's] investigatory activities were lawful and in accordance with the stated procedures set forth by [Sears].

Within ten days after entry of judgment, Sears filed a motion for judgment notwithstanding the verdict, again asserting that Wholey's discharge did not violate a clear mandate of public policy. Sears also filed a motion for a new trial, in which it argued that the jury had failed to consider the issue of mitigation of damages. The circuit court denied both motions on July 12, 1999.

Sears then noted a timely appeal.

DISCUSSION

Sears contends that with respect to Wholey's wrongful discharge claim, the circuit court erred in denying its motions to dismiss, for summary judgment, for judgment, and for judgment...