Watson v. Peoples Sec. Life Ins. Co.

• Decision Date: 01 September 1990
• Docket Number: No. 23,23
• Citation: 322 Md. 467,588 A.2d 760
• Parties: , 60 Fair Empl.Prac.Cas. (BNA) 1320, 123 Lab.Cas. P 57,116 Patricia A. WATSON v. PEOPLES SECURITY LIFE INSURANCE COMPANY
• Court: Maryland Court of Appeals

Page 467

322 Md. 467

588 A.2d 760, 60 Fair Empl.Prac.Cas. (BNA) 1320,

123 Lab.Cas. P 57,116

Patricia A. WATSON v. PEOPLES SECURITY LIFE INSURANCE COMPANY.

No. 23 Sept. Term, 1990.

Court of Appeals of Maryland.

April 12, 1991.

Willie J. Mahone, Frederick, for petitioner.

Richard W. Douglas, Hagerstown, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE and CHASANOW, JJ.

RODOWSKY, Judge.

This is an abusive discharge case in which the jury found for the plaintiff. The Court of Special Appeals reversed, concluding, over a dissent (Bishop, J.), that the plaintiff had failed to prove the claim. Peoples Security Life Ins. Co. v. Watson, 81 Md.App. 420, 568 A.2d 835 (1990). The evidence most favorable to the plaintiff is that the discharge was in retaliation for the plaintiff's having sued a co-worker for a sexual harassment assault and battery, a joined claim on which the jury also found for the plaintiff. As explained below, an abusive discharge action lies.

Petitioner, Patricia A. Watson (Watson), was an at will employee of the respondent, Peoples Security Life Insurance Company (Peoples). Watson was a sales agent in Peoples' Hagerstown office. Another employee in that office was John Strausser (Strausser), the manager of a staff of agents other than the staff to which Watson was assigned.

The operative facts were set forth by the Court of Special Appeals.

"Soon after Strausser began his employment at the Hagerstown office in October or November of 1985, he suggested to [Watson] that he would like to have her on his staff. Becoming more insistent, he said things such as 'You're going to work for me whether you like it or not. I'm going to show you how to make real money.' Not only did Strausser continue this importuning during working hours, but also he began telephoning [Watson] at night at her home, saying such things as 'I want you to come in here. I have to sleep on the floor in the office. And doll face you can make a lot of money if you do this.'

"When [Watson] informed her sales manager, Michael Leidhecker (Leidhecker), about Strausser's advances, Leidhecker indicated that he would bring this matter to the attention of Harold Shoemaker (Shoemaker), the agency manager who was Strausser's direct supervisor. Relating the incidents to Shoemaker herself, [Watson] got only a laughing response from Shoemaker who told [Watson] not to worry about it. Then, on the evening of January 29, 1986, [Watson] came into the office with Leidhecker. Strausser and one of his sales agents, Bill Bowman (Bowman), were already in the office. Approaching [Watson] from behind, Strausser placed his hands on her shoulders, and made a biting motion toward her chest, bringing his mouth within an inch of [Watson's] breast. Even though [Watson] protested, Strausser repeated this maneuver."

81 Md.App. at 424-25, 568 A.2d at 837.

Watson was at that time attired in a sweat shirt, advertising "Rocky's Pizza" on the front, and in a pair of slacks. She testified that "Mr. Strausser come up behind me and said something about he was going to take a bite of pizza and was trying to bite me in my chest." She further testified that Strausser "tried to take a bite of my breast."

"Leidhecker immediately brought the January 29 incident to the attention of Shoemaker. Shoemaker met with Strausser and told him 'to stay absolutely away from her [Watson] and do not speak unless you are spoken to.'

"In February 1986, [Watson] attended a training session at Hagerstown Junior College. Strausser attempted to grab [Watson] as she came out of the bathroom, asking 'Doll face what's the matter with you.' Besides attempting to grab [Watson] on that occasion, [Strausser] also verbally abused [Watson] at the training session on that day.

"Without any prior notice to Strausser or to any representative of [Peoples], the initial complaint in the instant case was filed in the Circuit Court [for Washington County] on March 13, 1986. [Peoples'] representatives were made aware of the fact that this action had been filed on March 17 or 18.

"On March 13, [Watson] requested permission from Leidhecker to be absent from work on March 14 so that she could keep a doctor's appointment. On the evening of March 14 or on March 15, [Watson] telephoned Leidhecker and advised him that her physician had certified in writing that she would benefit from a two week medical leave of absence. Leidhecker approved that leave.

"Robert D. Williams (Williams), a vice-president of [Peoples] and field supervisor of the area encompassing Hagerstown, learned on March 17 or 18 of the suit filed by [Watson] on March 13. He advised Shoemaker by telephone that he would come to Hagerstown from his Annapolis office on Thursday, March 20, 'to investigate and to try to get a clearer picture of just what the problem was' in connection with the gravemen of the complaint filed by [Watson]. Also, Williams asked Shoemaker to have the parties involved and any witnesses to the incident of January 29, 1986 present, so he could interview them on March 20.

Id. at 425-26, 568 A.2d at 837-38.

Williams interviewed a number of Peoples' employees on March 20, but Watson was not present. Shoemaker, and then Williams, spoke to Watson by telephone. Watson was unwilling to meet with Williams without having her lawyer present. Williams was unwilling to talk with Watson's lawyer.

Every Friday morning all of the Hagerstown sales agents met in the Peoples' office there. At those meetings the agents turned in premiums which they had collected during the preceding week. Williams testified that he advised Watson in their telephone conversation that she would be "considered terminated" if she did not appear for the regular agency meeting on Friday, March 21, 1986. Watson did not appear at that meeting.

Peoples, by letter signed by Shoemaker and dated March 20, 1986, gave Watson notice of termination effective March 28. The assigned reasons were failure to appear at the March 14 "Agency meeting" and insubordination for failure to report for work on Thursday, March 20 when requested by Williams to do so. An internal form of Peoples by which the agency manager reports to the home office on an employee's termination explains the reason for Watson's termination to be: "Unreported absence and insubordination ... Williams discharged over phone for above reasons." Shoemaker testified that Williams had told Watson in the telephone conversation that she could " 'take this as a notification of [her] termination.' " Shoemaker also said that he had shown the termination letter, in rough draft form, to Williams on Thursday.

Williams testified that Shoemaker was to have written the letter of termination the following Monday if Watson did not attend the Friday, March 21 meeting. Williams denied telling Watson that she was terminated for not responding to his request to come to the office on March 20.

The suit which Watson filed on March 13 joined Strausser and Peoples as defendants. The complaint contained three counts. Count I claimed against both for the assault and battery of January 29. Count II claimed against both for intentional infliction of emotional distress. Each of counts I and II aver that Strausser was acting in the course of his employment. The third count claimed only against Peoples on the theory that it had negligently retained or supervised Strausser. Count III alleged that the "sexual attacks of January 29, 1986 were preceded by a series of annoying and sexually suggestive comments to [Watson] while on the premises of" Peoples, that Watson had informed her supervisors of the "on-the-job and away from the job harassment," but that Peoples had not intervened to abate the "offensive behavior" of Strausser.

After Watson was terminated by Peoples, she filed a first amended complaint. The amendment added certain new counts, of which only Count IV, claiming for abusive discharge, is relevant here. Watson alleged that her termination was motivated by the filing of the initial complaint in this action. She said that the termination violated her "right to petition the court, guaranteed by the First Amendment to the United States Constitution, 42 U.S.C. § 1981 Article 19 ... and Article 40 of the Maryland Declaration of Rights." ¹

At trial Peoples moved for judgment under Maryland Rule 2-519(a) at the end of Watson's case. The motion was granted as to the assault and battery, intentional infliction of emotional distress, and negligent retention counts. The circuit court concluded that the workers' compensation statute immunized Peoples from tort liability to an employee for an assault by a co-employee. Because the emotional distress to which the plaintiff was subjected had not been shown to be sufficiently severe, in the trial court's judgment, motions on count II were granted in favor of Strausser, as well as Peoples. Count III fell because the court also determined that the plaintiff had failed to demonstrate that Peoples could have prevented the January 29 assault and battery.

Peoples' motion for judgment on the abusive discharge claim was denied. Watson argued that the true reason for the firing violated her right to petition the court as guaranteed by constitutional privileges alleged in the amended complaint. In this respect Watson relied upon Leese v. Baltimore County, 64 Md.App. 442, 468, 497 A.2d 159, 172, cert. denied, 305 Md. 106, 501 A.2d 845 (1985), where the court said, "We can conceive of no clearer 'mandate of public policy' than the rights spelled out in the United States Constitution." Peoples pointed out that Leese involved public employment and that the quoted language had no application to a private employer. Peoples further cited certain decisions from other jurisdictions holding that the employer had not committed abusive discharge by terminating an at will employee who was suing the employer.

At the close of the case the defendants renewed their motions for...