Hermina v. Safeway, Inc. et al
Filing
32
MEMORANDUM. Signed by Judge William M Nickerson on 1/3/12. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JACKLEEN HERMINA
v.
SAFEWAY, INC. et al.
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Civil Action No. WMN-11-1523
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MEMORANDUM
Before the Court is Defendant Safeway Inc.’s amended motion
to dismiss or in the alternative for summary judgment.
25.
The motion is fully briefed.
ECF No.
Upon a review of the papers
and the applicable case law, the Court determines that no
hearing is necessary, Local Rule 105.6, and the motion will be
granted in part and denied in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
In February 2009, Plaintiff Jackleen Hermina was employed
by Defendant Safeway, Inc. (Safeway) as a Pharmacy Manager in
Safeway’s Pasadena, Maryland store.
In addition to a base
salary of $112,840, Plaintiff was given a $15,000 signing bonus.
Safeway maintains that Plaintiff’s receipt of the bonus was
conditional to Plaintiff’s promise that she would repay the
bonus, in full, if her employment ended, with or without cause
and at the initiation of either Plaintiff or Safeway, before
Plaintiff completed three full years of employment.
1
Plaintiff
was later moved to a store closer to her home in Columbia,
Maryland.
On January 26, 2010, while working in the Columbia store,
Plaintiff accepted at the Pharmacy register two counterfeit
American Express Traveler’s Cheques with a combined value of
over $800.
Asserting that, in accepting the checks, Plaintiff
violated company policy by failing to verify the documents and
by failing to ask for identification from the customer, Safeway
placed Plaintiff on suspension without pay on February 4, 2010.
After an investigation, Safeway terminated Plaintiff’s
employment on February 18, 2010, effective March 3, 2010.
Immediately following Plaintiff’s termination, on March 9,
2010, Safeway sent Plaintiff a letter requesting repayment of
the signing bonus.
After Plaintiff failed to return the funds
despite several additional requests, Safeway turned the matter
over to a collection agency.
After additional unsuccessful
attempts to recover the signing bonus, Safeway filed, on or
about March 29, 2011, a complaint in the Maryland District Court
for Howard County seeking $8,685.50 plus fees.
Safeway v.
Hermina, Civ. No. 1001-0001738-2011.
Shortly after Plaintiff’s termination, Safeway also issued
two checks payable to Plaintiff: one for accrued but unused
vacation time in the amount of $2,715.46, and one for a prorated bonus that Plaintiff had earned in the amount of $745.84.
2
While these checks were issued on March 11, 2010, they were not
immediately sent to Plaintiff.
Safeway initially left them at
the Columbia store for Plaintiff to pick up, despite the fact
that Plaintiff was apparently barred from entering the store.
In fact, it would appear that Plaintiff was never told that the
checks had been left for her.
When the checks remained
unclaimed for an extended time, they were returned to the
company’s payroll center in Arizona.
The checks were then
mailed to Plaintiff’s home address but Plaintiff states that
when she attempted to deposit them into her account, they were
returned as “stale dated.”
The checks were then returned to
Safeway’s “Abandoned Property” center.
In the meantime, on or about September 29, 2010, Plaintiff
filed a claim with the Maryland Department of Labor, Licensing
and Regulation (DLLR) asserting that Safeway owed her unpaid
hourly wages in the amount of $15,407.00, other wages in the
amount of $1,302.00, as well as unpaid vacation and personal
leave.
Maryland DLLR Claim No. 11-10-038.
In response to the
claim, Tim Matthews, a Human Resources Manager for Safeway,
submitted a letter to DLLR on November 2, 2010, explaining
Safeway’s position regarding Plaintiff’s termination and her
wage claim.
Regarding her termination, Matthews stated that
Ms. Hermina was placed on suspension without pay on
February 4, 2010, pending a Loss Prevention investigation
3
and that, upon completion of the investigation, a decision
was made to terminate her employment effective March 3,
2010.
Matthew’s Aff., Attach. E.
Regarding her wage claims, Matthews explained Safeway’s
efforts, discussed supra, to send Plaintiff the two checks.
Pursuant to Safeway’s policy whereby it will not issue a
replacement check until such time as the payee signs an
indemnity agreement, Safeway provided to DLLR copies of
indemnity agreements for the two checks.
Matthews reports that
as of March 2011, Plaintiff had not submitted the signed
indemnity agreements.
In addition to the DLLR claim, on or about May 11, 2011,
Plaintiff also filed in the Circuit Court for Howard County a
suit that she designates as a “counter-suit” to the pending
state District Court suit.
In the Circuit Court complaint
against Safeway, Plaintiff asserted claims of Breach of
Contract, Quantum Meruit, Unjust Enrichment, Defamation, Unpaid
Wages, and Debt Collection Violations.
Plaintiff then filed a
motion in the state District Court to transfer Safeway’s
collection action to the Circuit Court for consolidation with
her counter-suit.
That motion was denied.
On motion of the
parties, however, the District Court action has been stayed.
Safeway removed the Circuit Court action to this Court and
it is now the above captioned action.
4
Safeway then filed a
motion to dismiss, or in the alternative, for summary judgment.
In response to the motion to dismiss, Plaintiff filed an Amended
Complaint adding Matthews as a Defendant in the defamation
claim, inserting a wrongful discharge claim, and significantly
increasing the amount of damages sought.
Defendant Safeway1 then
filed the pending amended motion to dismiss or for summary
judgment.
In preparing his affidavit in support of the instant
motion, Matthews contacted Safeway’s Employee Service Center and
learned that an indemnity agreement for the original check in
the amount of $745.84 had been received and a new check for that
amount was sent to Plaintiff’s attorney.
As of July 8, 2011,
however, that check had not been cashed.
While there is some
confusion in the record as to whether a signed indemnity
agreement was ever received related to the second check,
Matthews avers that he bypassed Safeway’s normal procedures and
issue a second check to Plaintiff for $2,715.46.
That check was
forwarded to Plaintiff through her attorneys and that check has
been cashed.
II. LEGAL STANDARD
1
While Matthews was included as a defendant in the Amended
Complaint, he was apparently never served. Thus, the motion is
filed only on behalf of Safeway.
5
The standard for a Rule 12(b)(6) motion to dismiss is well
known.
To survive such a motion, a complaint must “contain
sufficient factual matter . . . to ‘state a claim to relief that
is plausible on its face.’”
Ashcroft v. Iqbal, --- U.S. ----, -
---, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
In considering
such a motion, the court is required to accept as true all wellpled allegations in the Complaint, and to construe the facts and
reasonable inferences from those facts in the light most
favorable to the plaintiff.
Ibarra v. United States, 120 F.3d
472, 474 (4th Cir. 1997).
As to some of the claims, the parties have submitted and
the Court has considered matters outside of the pleadings.
As
to these claims, the motion is converted to one for summary
judgment.
Fed. R. Civ. P. 12(d).
Summary judgment is proper if
the evidence before the court establishes that there is no
genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A party
seeking summary judgment bears the initial responsibility of
informing the court of the basis of its motion and identifying
6
the portions of the opposing party’s case which it believes
demonstrate the absence of a genuine issue of material fact.
Id. at 323.
If the movant demonstrates that there is no genuine issue
of material fact and that the movant is entitled to summary
judgment as a matter of law, the non-moving party must, in order
to withstand the motion for summary judgment, produce sufficient
evidence which demonstrates that a triable issue of fact exists
for trial.
Celotex, 477 U.S. at 324.
Unsupported speculation
is insufficient to defeat a motion for summary judgment.
Felty
v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)
(citing Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411-12
(4th Cir. 1986)).
Furthermore, the mere existence of some
factual dispute is insufficient to defeat a motion for summary
judgment; there must be a genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Thus, only disputes over those facts that might affect the
outcome of the case under the governing law are considered to be
“material.”
Id.
Finally, the non-moving party is entitled to
have “all reasonable inferences . . . drawn in its respective
favor.”
Felty, 818 F.2d at 1129.
III. DISCUSSION
A. Breach of Contract
7
There are two primary aspects to Plaintiff’s breach of
contract claim.2
First, she alleges that Defendant promised her
employment for a period of three years and that Safeway breached
that agreement when it terminated her employment without any
just, good faith reason or cause.
Second, Plaintiff asserts
that Defendant contractually bound itself to guidelines
providing “progressive discipline” but then failed to abide by
those guidelines.
As to the alleged three year term to her employment
contract, Plaintiff acknowledges that Maryland is an at will
state and that, as a general rule, employment can be terminated
at the pleasure of either party, without cause.
Pl.’s Opp’n at
10 (citing Vincent v. Palmer, 19 A.2d 183 (Md. 1941)); see also,
Staggs v. Blue Cross, 486 A.2d 798, 801 (Md. Ct. Spec. App.
1985).
Plaintiff argues, however, that the hiring bonus
conditioned upon her remaining employed for three years created
ambiguity as to whether her particular employment was at will or
was guaranteed for three years.
If ambiguous, she argues, that
dispute should be reserved for a jury to resolve.
She also
avers that Brian Drummond, the Safeway employee who interviewed
2
Plaintiff also includes in this count assertions that
Defendant terminated her employment because she voiced concerns
about unsafe practices and that Defendant failed to pay her
overtime to which she was entitled. These assertions will be
discussed, infra, in connection with other causes of action.
8
her for the Pharmacy Manager position, told her that she “had to
give Safeway ‘a three-year commitment.’”
Pl.’s Aff. ¶ 4.
The Court finds that there was no contract for three years
of employment and that there was no ambiguity as to that matter.
The letter Drummond sent to Plaintiff offering her the position
and explaining the signing bonus clearly stated, “[n]either this
letter nor the Company’s payment of any bonus amounts to you
constitutes a guarantee of, or contract for employment for any
specific term.”
Drummond Aff., Attach. A.
Plaintiff also
signed and dated that letter under the affirmation, “I
understand Safeway’s Policy that employment is at will and for
no specific term and that the employment relationship may be
terminated by either party at any time and for any reason.”
Id.
The employment application signed by Plaintiff contained a
similar acknowledgement which Plaintiff checked and then signed
below: “At-will employment: . . . I understand that if I become
employed by the Company, my employment is for no specific term.
. . .
I further understand that no Company representative has
any authority to enter into any agreement with me different or
contrary to the foregoing.”
Drummond Aff., Attach. C.
Furthermore, when Plaintiff received the signing bonus, she
signed a Promissory Note that stated, immediately above her
signature, that “[t]his note is not intended, nor shall it be
construed, as an express or implied contract of employment for
9
three years, or any other definite period.”
Drummond Aff.,
Attach. B.
In light of these repeated and clear representations, there
is no ambiguity that would take Plaintiff’s employment outside
of Maryland’s at will employment rule.
In support of her claim that Defendant breached a promise
to provide “progressive discipline,” Plaintiff avers in her
Complaint and repeats in an affidavit that Safeway assured that
“employees would be afforded a progressive discipline whereby
the first step would be counseling, the second would be
suspension, followed by termination.”
Am. Compl. ¶ 14.
Pl.’s Aff. ¶ 12; see also
In her affidavit, Plaintiff asserts that this
provision was in an online Handbook to which she no longer has
access.
Pl.’s Aff. ¶ 12.
Defendant responds by providing a
copy of the Safeway Employee Handbook.
That Handbook does not
contain any reference to or guarantee of progressive discipline.
It does, however, contain a provision that “[a]pproval of all
checks must be made by the Store Manager or someone specifically
designated by him.
yourself.”
You are never to assume this authority for
Matthews Aff., Attach. L at 25 (emphasis in
original).3
3
The Court is somewhat surprised that the Employee
submitted by Safeway indicates on its cover that it
revised in 1983. Id. at 1. Nevertheless, Matthews
affidavit that the attached Handbook was a true and
10
Handbook
was last
swore in his
correct copy
The Court finds that Defendant Safeway is entitled to
summary judgment as to Plaintiff’s contract claim.
B. Quantum Meruit and Unjust Enrichment
To bring a claim of unjust enrichment, a plaintiff must
establish: (1) a benefit conferred upon the defendant by the
plaintiff; (2) an appreciation or knowledge by the defendant of
the benefit; and (3) the acceptance or retention by the
defendant of the benefit under such circumstances as to make it
inequitable for the defendant to retain the benefit without the
payment of its value.
Swedish Civil Aviation Admin. v. Project
Mgmt. Enter., Inc., 190 F. Supp. 2d 785, 792-93.
of a quantum meruit claim are similar.
The elements
Id. at 793.
Plaintiff has attempted to bring a variety of payments
allegedly owed to her within the ambit of her unjust enrichment
and quantum meruit claims.
In her Amended Complaint, Plaintiff
identifies overtime pay to which she alleges she was entitled as
the basis for her quantum meruit claim.
In support of her
of the Handbook that Safeway employees are required to read and
study thoroughly. Matthews’ Supp. Aff. ¶ 12. While Plaintiff
makes reference to some online version of a handbook, she does
not produce it nor does she oppose the motion for summary
judgment on the ground that more time was needed for discovery.
See Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214,
244 (4th Cir. 2002) (noting that “the party opposing summary
judgment ‘cannot complain that summary judgment was granted
without discovery unless that party has made an attempt to
oppose the motion on the grounds that more time was needed for
discovery.’”) (quoting Evans v. Techs. Applications & Serv. Co.,
80 F.3d 954, 961 (4th Cir. 1996)).
11
unjust enrichment claim, Plaintiff references earned leave and
overtime for which she has yet to be paid.
In both counts
Plaintiff prays for $100,000 plus interest, attorney’s fees and
costs of suit.
In her opposition to that portion of Defendant’s motion
relating to these claims, Plaintiff asserts she is “entitled to
two checks: one for $2,715.46 and another for $745.84.”
26 at 12-13.
ECF No.
Without explicitly acknowledging that she received
and cashed the $2,715.46 check, she implicitly acknowledges that
fact by asserting that she “is entitled to interest earned on
the first stated amount and the entire amount of the second
check of $745.84.”
Id. at 13.
Regardless, it appears
undisputed that Plaintiff has received the $2,715.46 as
Defendant has submitted a copy of the cancelled check for that
amount.
ECF No. 25-11.
Plaintiff also asserts in her opposition that she is owed
“the amount of $1,529.60 in earned wages, which Safeway
wrongfully withheld.”
Id.
As support for that assertion,
Plaintiff submitted a printout of her credit union statement for
the period February 25, 2010, to March 18, 2010, showing an
“External Deposit” of $1,529.60 on March 4, 2010, and an
“External Withdrawal” of that same amount on that same date.
There is a handwritten notation on the printout next to the
withdrawal which reads: “Safeway, Inc.”
12
Pl.’s Opp’n, Attach E.
In her Affidavit, Plaintiff asserts that Safeway withdrew a wage
check deposit, and references this credit union statement.
Pl.’s Aff.
¶ 29.
With the possible exception of the $745.84 allegedly still
owed for Plaintiff’s prorated bonus, the Court finds that
Plaintiff has failed to support her unjust enrichment or quantum
meruit claims.
It is undisputed that Plaintiff has received the
$2,715.46 for unused vacation time and Plaintiff offers no
support for her interest claim related to that payment.
As to
Plaintiff’s entitlement to overtime wages, Defendant notes that
Maryland Wage and Hour Law exempts employers from any duty to
pay overtime wages to individuals employed in professional
capacities.
An employee is employed in a professional capacity
if she is compensated on a salary basis at a rate of not less
than $455 per week, and her primary duty is the performance of
work that requires “knowledge of an advanced type in a field of
science or learning customarily acquired by a prolonged course
of specialized intellectual instruction.”
Md. Code Regs.
09.12.41.17 (incorporating the definition of “professional
capacity” from 29 C.F.R. § 541.300 et seq.).
Plaintiff’s
position as a pharmacist who was paid more than $2,000 per week
certainly falls within that exempt category and Plaintiff makes
no argument to the contrary.
13
Plaintiff’s claim for the $1,529.60 that was apparently
deposited and then withdrawn from her account on March 3, 2010,
is somewhat problematic.
Defendant notes that no claim related
to that amount was included in the Amended Complaint.
Given
that Plaintiff asserted in her Wage Claim before DLLR that she
was entitled to wages for the period of her suspension, i.e.,
February 4, 2010 to March 3, 2010, see Matthew’s Aff., Attach.
A, and that she states in her opposition that this sum is for
“wages earned,” Pl.’s Opp’n at 13, the Court must assume that
Plaintiff claims this withdrawn March 3, 2010, deposit was for
wages she believes she earned while on suspension.
Safeway
informed Plaintiff, however, when she was placed on suspension
that the suspension was without pay and Plaintiff has offered no
support to the contrary.
In the absence of any further
explanation or evidence regarding the withdrawal from the credit
union account, the Court finds that Plaintiff has failed to
support any unjust enrichment or quantum meruit claims related
to the $1,529.60.
As stated above, there remains a question as to the $745.84
prorated bonus.
While it would appear that Plaintiff has the
check but simply has not cashed it, the record concerning
Defendant’s efforts to get this check to Plaintiff is muddled.
The Court also notes, however, that Plaintiff makes no reference
to bonus payments in either the quantum meruit or unjust
14
enrichment counts.
Accordingly, the Court will dismiss these
counts and address Plaintiff’s entitlement to the bonus payment
in the context of her Wage Payment and Collection Act claim,
infra.
C. Defamation
To establish a cause of action for defamation under
Maryland law, a plaintiff must show: (1) the defendant made a
defamatory statement regarding the plaintiff to a third person;
(2) the statement was false; (3) the defendant was legally at
fault in making the statement; and (4) the plaintiff suffered
harm.
Mazer v. Safeway, Inc., 398 F. Supp. 2d 412, 428 (D. Md.
2005).
A “defamatory statement” is one that “tends to expose a
person to public scorn, hatred, contempt or ridicule, thereby
discouraging others in the community from having a good opinion
of, or associating with, that person.”
A.2d 321, 327 (Md. 2001).
Gohart v. Darvish, 767
Legal “fault” in this context refers
to either negligence or actual malice.
See Shapiro v.
Massengill, 661 A.2d 202, 217 (Md. Ct. Spec. App. 1995).
Even where these elements are established, any statement
made in a judicial or qualified quasi-judicial proceeding is
protected by an absolute privilege absent a showing of falsity
and actual malice.
Furthermore, in the context of the employer-
employee relationship, statements made to prospective employers
or upon request by industry regulatory authorities fall under a
15
qualified privilege if the employer was acting in good faith.
Md. Code Ann., Cts. & Jud. Proc. § 5-423(a).
In that context,
there is a legal presumption that the employer is acting in good
faith absent a showing by “clear and convincing evidence” that
the employer acted with actual malice or intentionally or
recklessly disclosed false information about the employee.
Id.
§ 5-423(b).
The statement that Plaintiff alleges was defamatory was the
statement Matthews made in the response he submitted to the DLLR
on behalf of Defendant which read, in its entirety:
On February 4, 2010 Ms. Hermina was placed on
suspension without pay by her Regional Pharmacy
Manager pending a Loss Prevention investigation. Upon
completion of the investigation a decision was made to
terminate Ms. Hermina’s employment effective 3-3-10.
Matthew’s Aff., Attach. E (emphasis in original).
Plaintiff
asserts that the mention of a “Loss Prevention investigation”
suggests that Plaintiff was personally engaged in theft.
Compl. ¶ 35.
Am.
Plaintiff further alleges that Matthews knew the
statement was false when he made it, and that he acted with
actual malice or at least reckless disregard for the truth.
Id.
¶ 36.
It is doubtful that Plaintiff has supported a defamation
claim, even without consideration of privilege issues.
Matthews’ statement is factually correct.
There was a loss
prevention investigation and Plaintiff was suspended during its
16
pendency.
Matthews nowhere states that Plaintiff was the object
of that investigation.
Regardless, the Court concludes that Matthews’ statement is
protected by privilege.
Plaintiff filed a claim with the DLLR
for recovery of unpaid wages and the DLLR instituted a formal
investigation of the matter.
The DLLR required Defendant to
submit, in writing, the specific legal or factual basis as to
why it disputed Plaintiff’s wage claim and Matthews submitted a
factually accurate explanation of Defendant’s position.
Plaintiff does not actually contest that Matthews’
statement was subject to privilege but instead contends that the
privilege was lost by a showing of falsity and malice.
Opp’n at 14.
Pl.’s
In making that argument, Plaintiff relies on
Shapiro, supra., characterizing the facts of Shapiro as:
“plaintiff’s employer sent a letter to a state agency
suggesting, inter alia, that plaintiff had an ‘involvement’ in a
criminal investigation.”
Id. at 13.
The actual facts of
Shapiro, however, are readily distinguishable from the facts in
the instant action.
In Shapiro, an attorney was fired from the law firm that
had recently employed him after the firm learned that the
federal government was investigating some billing discrepancies
at the attorney’s former place of employment.
When the attorney
filed for unemployment benefits with the Maryland Department of
17
Employment and Economic Development (DEED), the employer sent a
letter to DEED opposing the award of those benefits.
In that
letter, the employer stated that the plaintiff “admitted . . .
that he could be indicted,” notwithstanding the fact that the
plaintiff maintained that he had actually “steadfastly denied
that he could be indicted.”
661 A.2d at 216, 207.
The employer
also stated in the letter to DEED that the plaintiff had failed
to disclose information that “went to the very core, ethically
and morally,” of the proposed legal practice.
Id. at 216.
The
employer concluded the letter by opining that he “could no
longer trust [the plaintiff’s] ethics [or] his judgment.”
Id.
Under those facts, the Maryland Court of Special Appeals
held, without much discussion, that the question of whether the
employer abused any qualified privilege that his words enjoyed
should have been submitted to a jury.
no inkling of such abuse.
Here, however, there is
It should be noted that the claim
Plaintiff submitted to the DLLR and to which Matthews was
responding involved Plaintiff’s entitlement to wages for the
period February 4, 2010, to March 3, 2010.
Matthew’s response
directly addressed that issue and focused on that issue, i.e.,
that Plaintiff had “been placed on suspension without pay”
during the pendency of a loss prevention investigation that took
place during that period.
18
The Court concludes that Plaintiff has failed to state a
cause of action for defamation.
D. Debt Collection Act
In Count IV of the Amended Complaint, Plaintiff references
Section 4-202 of the Commercial Law article.
That section sets
out the duties of collecting banks when presenting items or
sending items for presentment and could have no possible
relevance to this case.
Remarkably, despite Defendant’s
pointing out that Plaintiff had cited the wrong statute,
Plaintiff repeats the reference to Section 4-202 in her
Opposition.
Pl.’s Opp’n at 17.
Because Plaintiff’s allegations
in Count IV relate to the collection of a debt, the Court must
assume she intended to reference § 14-202, which is part of the
Maryland Consumer Debt Collection Act.
Section 14-202 regulates the activities of “collectors” of
consumer debt.
A “collector” is defined as a “person collecting
or attempting to collect an alleged debt arising out of a
consumer transaction.”
Id. § 14-201(b).
A “consumer
transaction” is defined as “any transaction involving a person
seeking or acquiring real or personal property, services, money,
or credit for personal, family, or household purposes.”
14-201(c).
Id. §
While Defendant noted in its motion the
inapplicability of Maryland’s consumer debt statute to an action
of an employer to recover a signing bonus from a former
19
employee, Plaintiff made no response in her opposition beyond
opining that Defendant’s argument is “premature” and that “the
Court should permit discovery on the issue of whether Safeway is
liable for violation of the Maryland act.”
Pl.’s Opp’n at 18.
Plaintiff does not begin to explain, however, how discovery
could transform an employment agreement into a consumer
transaction.
Defendant’s motion will be granted as to this
count.
E. Wrongful Discharge
As stated above, the employment relationship in Maryland is
generally an at will relationship and can be terminated by
either party for any or no reason.
Courts have recognized a
limited exception to that rule permitting a cause of action for
wrongful discharge where the termination of the plaintiff’s
employment contravenes some “clear mandate of public policy.”
Adler v. American Standard Corp., 432 A.2d 464, 471 (Md. 1981).
Courts have also cautioned, however, that this is a narrow
exception to the employment-at-will doctrine and that there is a
strong presumption against the judicial creation or recognition
of public policy.
Id. at 472.
In order for a mandate of public
policy to be well-established enough to form the basis of a
wrongful discharge action, there “‘must be a preexisting,
unambiguous, and particularized pronouncement by constitution,
enactment, or prior judicial decision, directing, prohibiting,
20
or protecting the conduct in question so as to make the public
policy on the relevant topic not a matter of conjecture or
interpretation.’”
Szaller v. Am. Nat'l Red Cross, 293 F.3d 148,
151 (4th Cir. 2002) (quoting Porterfield v. Mascari II, Inc.,
788 A.2d 242, 245 (Md. 2002)).
In her Amended Complaint, Plaintiff asserts that her
termination was “in contravention of the clear mandate of public
policy that individuals and employees oppose unsafe conditions
without fear of retribution for engaging in the same.”
Compl. ¶ 48.
Am.
In opposing Defendant’s motion for summary
judgment, Plaintiff references a single email that she sent to
her supervisor, Jeremy Cundiff, inquiring about several
maintenance related issues at her pharmacy, including:
purchasing a vacuum cleaner, having the pharmacy floors
stripped, and the need for additional storage space.
The only
reference in that email that arguably relates to “unsafe
conditions,” is the following inquiry: “Hi Jeremy, I have
several hazardous bottles with used syringes which have no cover
and are over filled with no return boxes.
how to go about returning those.”
I would like to know
Pl.’s Opp’n, Attach. D.
Cundiff responded, “[o]rder another sharps container or two and
use that one to send them back.”
Id.
That appears to be the
end of any discussion or reference to the issue.
21
This single email does not implicate any clear mandate of
public policy.
Even were the Court to read into her question
that she was attempting to “blow the whistle” on some serious
safety concern, Maryland courts have consistently rejected
wrongful discharge claims of “whistleblowers” who only raise
their concerns internally.
See Symeonidid v. Paxton Capital
Group, Inc., 220 F. Supp. 2d 478, 485 (D. Md. 2002); Wholey v.
Sears Roebuck, 803 A.2d 482, 494-95 (Md. 2001).
Here,
Plaintiff’s only claim is that she raised this single issue on a
single occasion, and only to her supervisor.
As such,
Defendant’s motion will be granted as to Plaintiff’s wrongful
discharge claim.
F. Maryland’s Wage Payment and Collection Law
Under Maryland’s Wage Payment and Collection Law (MWPC), it
is the general rule that
each employer shall pay an employee or the
authorized representative of an employee all
wages due for work that the employee performed
before the termination of employment, on or
before the day on which the employee would have
been paid the wages if the employment had not
been terminated.
Md. Code Ann., Lab. & Empl. § 3-505(a).
If an employer fails to
pay an employee in accordance with this provision within two
weeks of the date on which the employer was required to pay the
wage, the employee can bring an action against the employer to
recover the unpaid wages.
Id. § 3-507.2(a).
22
In such an action,
“if a court finds that an employer withheld the wage of an
employee in violation of this subtitle and not as a result of a
bona fide dispute, the court may award the employee an amount
not exceeding 3 times the wage, and reasonable counsel fees and
other costs.”
Id. § 3-507.2(b).
In moving for summary judgment as to this claim, Defendant
asserts that, by issuing the two checks payable to Plaintiff
within a week following the effective date of her termination,
it complied with the MWPC.
Def.’s Reply at 14-15.
The Court
finds that Defendant is not entitled to judgment as to this
claim under the current record.
Plaintiff states that, while
these checks may have been timely issued, she was never told
that they were at the store for her to pick up.
Furthermore,
she alleges she was forbidden to enter the store, even had she
been told the checks were waiting.
Defendant, in fact, makes no
claim that Plaintiff was informed that the checks were available
and concedes it was considerably outside the requisite two weeks
before they actually reached Plaintiff.
“The primary purpose of the MWPC is ‘to provide a vehicle
for employees to collect, and an incentive for employers to pay,
back wages.’”
Butler v. VisionAIR, Inc., 385 F. Supp. 2d 549
(D. Md. 2005) (quoting Battaglia v. Clinical Perfusionists, 658
A.2d 680, 686 (Md. 1995)) (emphasis added).
Simply issuing
checks but not telling the employee that they were issued or
23
where they could be picked up, does nothing to assure that the
employee actually collects the wages due.
Defendant’s motion
will be denied as to this claim.
IV. CONCLUSION
The claims set forth in the Amended Complaint are largely
without merit.
There do remain, however, questions as to
whether Plaintiff has yet to receive the $745.84 that she is
owed for her prorated bonus and as to whether Defendant has
fully complied with the provisions of the Maryland Wage Payment
and Collection Law.
Accordingly, the Court will grant
Defendant’s motion as to all but Count V of the Amended
Complaint.
It would be anticipated that the parties will be able to
resolve the narrow issues that are outstanding in this action
without the need for further litigation or involvement of the
Court.
To determine whether that is possible, the Court asks
that the parties submit a joint status report within ten days of
this date indicating whether the Court needs to issue a
scheduling order in this action.
A separate order consistent with this memorandum will be
issued.
___________/s/_______________________
William M. Nickerson
24
Senior United States District Judge
DATED: January 3, 2012.
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