Hjardemaal v. Kone Inc.

Filing 16

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART WITHOUT PREJUDICE 10 Defendant's Motion to Dismiss; Plaintiff may file an amended complaint, in accordance with the Memorandum Opinion and Order, on or before 1/5/2014; in all other regards, Plaintiff's Complaint is DISMISSED. Signed by Judge Paul W. Grimm on 12/15/2014. (kns, Deputy Clerk)(c/m 12/15/14)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
PAUL HJARDEMAAL,

*

Plaintiff,

*

v.

*

KONE INC.,

*

Defendant.
*

*

*

Case No.: PWG-14-735

*
*

*

*

*

*

*

*

*

*

*

MEMORANDUM OPINION AND ORDER
Plaintiff Paul Hjardemaal, pro se, filed this wrongful discharge action in the Circuit Court
for Montgomery County after Defendant KONE Inc. terminated his employment. Compl., ECF
No. 2. Defendant removed the case to this Court, ECF No. 1, and then moved to dismiss the
Complaint for failure to state a claim, ECF No. 10.1 Because Plaintiff has failed to state a claim
in his initial pleading but is proceeding pro se and may be able to amend his Complaint to state a
meritorious claim, Defendant’s Motion IS GRANTED IN PART AND DENIED IN PART.
I.

BACKGROUND
As best I can discern from the pleadings,2 Plaintiff worked as a “Safety Manager” for

KONE, where his “job was to enforce safety rule[s,] procedures or regulations.” Compl. 2.
During his employment, he reported to his supervisor “orally and in writing” when he observed

1

  The parties fully briefed the motion. ECF Nos. 10-1, 12, 13. A hearing is not necessary. See
Loc. R. 105.6.  
2

For purposes of considering Defendant’s Motion to Dismiss, this Court accepts as true the facts
that Plaintiff alleged in the Complaint. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011).

incidents or circumstances that he deemed unsafe. Id. at 2–3. Specifically, he reported that
workers were not wearing their safety vests or safety harnesses, that “KONE failed to install a
protective barrier between the escalator and the stairways to protect the public from serious
injuries,” and that employees working on a train platform “laid panels too close to the edge of the
train platform.” Id. Additionally, in one report, he advised his supervisor to “beware of wind
shear on the train platform created by a fast moving train.” Id. at 2. Soon after that report, “a
fast moving train going back to the yard created a wind shear that in turn got some panels on the
edge of the train platform airborne,” and “those panels were sucked up by the train & damaged
the train and luckily barely missed the workers on the train platform.” Id. at 3. According to
Plaintiff, his supervisor “accused [him] of harassing the workers and using terms [Plaintiff] did
not understand,” and he overheard another employee say that the supervisor was “trying to fire
him.” Id. at 2–3.
In late December 2013 or early January 2014, Plaintiff was rear-ended while driving a
company vehicle and, although he reported the accident, his supervisor said that he “followed the
wrong procedure.” Compl. 3–4. KONE terminated Plaintiff in January 2014, shortly after the
accident. Id. at 4. According to Plaintiff, “the evidence will . . . show that the motivation of the
discharge by KONE contravened some clear mandate of public policy.” Compl. 2. He asserts that
“[t]his suit is based on the third category of ‘wrongful termination’ as confirmed in Adler v.
American Standard.” Id. at 4.
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal of a complaint if it
fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo, No. RDB-12-237,
2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule’s purpose “‘is to test the sufficiency
2 

of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.’” Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th
Cir. 2006)). To that end, the Court bears in mind the requirements of Fed. R. Civ. P. 8, Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009),
when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief,”
Fed. R. Civ. P. 8(a)(2), and must state “a plausible claim for relief,” as “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice,”
Iqbal, 556 U.S. at 678–79. See Velencia, 2012 WL 6562764, at *4 (discussing standard from
Iqbal and Twombly).
Plaintiff is proceeding pro se, and his Complaint is to be construed liberally. See Haines
v. Kerner, 404 U.S. 519, 520 (1972). However, liberal construction does not absolve Plaintiff
from pleading plausible claims. See Holsey v. Collins, 90 F.R.D. 122, 128 (D. Md. 1981) (citing
Inmates v. Owens, 561 F.2d 560, 562–63 (4th Cir. 1977)).
It is neither unfair nor unreasonable to require a pleader to put his
complaint in an intelligible, coherent, and manageable form, and his failure to do
so may warrant dismissal. District courts are not required to be mind readers, or to
conjure questions not squarely presented to them.
Harris v. Angliker, 955 F.2d 41, 1992 WL 21375, at * 1 (4th Cir. 1992) (per curiam) (internal
citations omitted).
“‘The determination whether to dismiss with or without prejudice under Rule 12(b)(6) is
within the discretion of the district court.’” Weigel v. Maryland, 950 F. Supp. 2d 811, 825–26
(D. Md. 2013) (quoting 180S, Inc. v. Gordini U.S.A., Inc., 602 F. Supp. 2d 635, 638–39 (D. Md.
2009)). Generally, the plaintiff should be afforded the opportunity to amend, see id., or dismissal
should be without prejudice. See Adams v. Sw. Va. Reg’l Jail Auth., 524 F. A’ppx 899, 900,
3 

2013 WL 1943798, at *1 (4th Cir. 2013) (“Where no opportunity is given to amend the
complaint, the dismissal should generally be without prejudice.”); Cosner v. Dodt, 526 F. App’x
252, 253 (4th Cir. 2013) (same). However, “dismissal with prejudice is proper if there is no set
of facts the plaintiff could present to support his claim.” Weigel, 950 F. Supp. 2d at 825–26.
The Fourth Circuit has explained:
While a potentially meritorious claim, particularly by a pro se litigant, should not
be unqualifiedly dismissed for failure to state a claim unless its deficiencies are
truly incurable, such an unqualified dismissal is entirely proper when the court
has reviewed the claim and found it to be substantively meritless. Once a court
has determined that the complaint is truly unamendable, a dismissal without
prejudice is of little benefit to the litigant, as the claim cannot be made viable
through reformulation.
McLean v. United States, 566 F.3d 391, 400–01 (4th Cir. 2009) (internal citation omitted).
III.

DISCUSSION
A. Wrongful Discharge
In Maryland, the general rule “‘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.’” Goode v.
American Veterans, Inc., 874 F. Supp. 2d 430, 441 (D. Md. 2012) (quoting Adler v. Am.
Standard Corp., 432 A.2d 464, 467 (Md. 1981). The “narrow exception to the common law
terminable at-will doctrine” is that “a cause of action is allowed for abusive discharge of an atwill employee if the motivation for the discharge ‘contravened some clear mandate of public
policy.’” Id. at 442 (quoting Adler, 432 A.2d at 471). To state a claim for wrongful discharge,
Plaintiff must allege that: (1) he was discharged, (2) “the basis for [his] discharge . . . violate[d]
some clear mandate of public policy,” and (3) “there [was] a nexus between [his] conduct and
the employer’s decision to fire [him].” Wholey v. Sears Roebuck, 803 A.2d 482, 489 (Md.
2002). The public policy must “be reasonably discernible from prescribed constitutional or
4 

statutory mandates.” Id. at 490–91; see Parks v. Alpharma, Inc., 25 A.3d 200, 212 (Md. 2011)
(same).

This means that “there [must be] a preexisting, unambiguous, and particularized

pronouncement, by constitution, enactment, or prior judicial decision, directing, prohibiting, or
protecting the conduct . . . in question, so as to make the Maryland public policy on the topic not
a matter of judicial conjecture or even interpretation.” Sears, Roebuck & Co. v. Wholey, 779
A.2d 408 (2001), aff’d, 803 A.2d 482 (Md. 2002). Significantly, the burden is on the plaintiff to
“‘identify the source of the public policy with particularity.’” Taylor v. Rite Aid Corp., 993 F.
Supp. 2d 551, 562 (D. Md. 2014) (quoting King v. Marriott Int’l, Inc., 866 A.2d 895, 903
(2005)).
Here, it is undisputed that Plaintiff was discharged. Compl. 2; Def.’s Mem. 5 n.3.
Plaintiff claims that his termination violated “some clear mandate of public policy,” but he does
not identify the public policy. Compl. 2 (emphasis added). This “[t]hreadbare recital[]” of the
second element of wrongful discharge does not identify the law giving rise to the policy at all, let
alone with particularity, and therefore is insufficient to state a claim. See Iqbal, 556 U.S. at 678–
79; Velencia, 2012 WL 6562764, at *4; Taylor, 993 F. Supp. 2d at 562; King, 866 A.2d at 903.
In his Opposition, Plaintiff makes additional conclusory statements that could be
construed as assertions of public policies.3 He argues that “[i]t is unlawful in Maryland to
intentionally and maliciously create bad working conditions to force an employee to resign,”
contending that his supervisor “called [him] to his office numerous times and threaten[ed] to fire

3

Although “[i]t is axiomatic that a complaint may not be amended by the briefs in opposition to
a motion to dismiss,” Saunders v. Putnam Am. Gov’t Income Fund, No. JFM-04-560, 2006 WL
1888906, at *2 n.2 (D. Md. July 7, 2006), I consider the allegations in Plaintiff’s Opposition
insofar as the briefing could be construed liberally to encompass a motion to amend, see Fed. R.
Civ. P. 1, and the allegations provide insight into the viability of Plaintiff’s claim if he were
granted leave to amend. See McLean, 566 F.3d at 400–01 (dismissal with prejudice proper if
claim cannot be made viable through amendment).
5 

[him] because in his opinion enforcing [safety laws and regulations] is harassment.” Pl.’s Opp’n
1-2. KONE argues that, insofar as this is an attempt to state a claim for constructive discharge, it
fails. Def.’s Reply 5. Constructive discharge only can occur when an employee resigns. See
Lyons v. Peake, 2009 WL 2461711, at *5 (D. Md. Aug. 10, 2009) (“Because Lyons was
terminated by the Department and did not resign, his constructive discharge claim must be
dismissed.”). As in Lyons, because Plaintiff did not resign, but rather KONE terminated his
employment, he cannot state a claim for constructive discharge. See id.
Additionally, Plaintiff contends that “i[t] is unlawful in Maryland to fire an employee for
reporting safety violations or otherwise acting in good faith to protect [his] safety and the safety
of others.” Id. Indeed, the Maryland Occupational Safety and Health Act (“MOSHA”), Md.
Code Ann., Lab. & Empl. §§ 5-101 – 5-1103, was enacted “to ensure, to the extent practicable,
that each working man and woman in the State has working conditions that are safe and healthful
and to preserve human resources by,” inter alia, “providing that employers and employees have
separate but dependent responsibilities and rights with respect to making working conditions safe
and healthful”; “encouraging employers and employees to . . . reduce the number of occupational
health and safety hazards at their places of employment”; and “providing for reporting
procedures on occupational safety and health that are appropriate to help to achieve the purposes
of this title.” Lab. & Empl. § 5-102(b)(1), (5)(i), (12). Further, MOSHA provides for a statutory
whistleblower claim by prohibiting employers from discharging an employee for filing a
complaint, bringing an action or proceeding, or exercising a right under or related to MOSHA, or
testifying in such an action or proceeding. Lab. & Empl. § 5-604(b). Yet, “‘[a]busive discharge
is inherently limited to remedying only those discharges in violation of a clear mandate of public
policy which otherwise would not be vindicated by a civil remedy,’” such as a statutory claim.

6 

See Blakes v. City of Hyattsville, 909 F. Supp. 2d 431, 444 (D. Md. 2012) (quoting Makovi v.
Sherwin-Williams Co., 561 A.2d 179, 180 (Md. 1989)) (emphasis added). Moreover, construed
as a statutory claim rather than a claim for wrongful discharge, Plaintiff’s claim would fail
nonetheless because he only reported the activity to his supervisor, and MOSHA requires that
“the employee/whistle-blower reports the suspect activity externally,” see Wholey, 803 A.2d at
496,4 and by following specific procedures outlined in the statute, see Lab. & Empl. § 5604(c)(1)(i), (2) (requiring employee to submit signed, written complaint to the Commissioner of
Labor and Industry within thirty days after the suspect activity occurs).
Contending that he was told that he “got fired for following the wrong procedure when
the company vehicle got rear ended,” but “[a]ctually [he] got fired for doing [his] job” by
reporting safety issues to his supervisor, Plaintiff also argues that “[i]t is unlawful in Maryland to
pretend to fire an employee for one reason while the employee gets fired for another reason.”
Pl.’s Opp’n 2. Yet, this statement of Maryland law pertains specifically when the reason given is
pretext for a discriminatory termination. See State Comm’n on Human Relations v. Kaydon Ring
& Seal, Inc., 818 A.2d 259, 277 (Md. Ct. Spec. App. 2003) (noting that under the McDonnell
Douglas burden-shifting framework, to prevail on a claim for discriminatory termination, a
plaintiff first shows termination for a discriminatory reason and, if the employer “produce[s]
evidence of a non-discriminatory reason for the termination,” the plaintiff then “show[s] that that
reason was a pretext for [the employee’s] termination, with [the employer’s] actual reason for
filing [the employee] being his race”) (internal citations omitted). Therefore, Plaintiff has not

4

Likewise, because Plaintiff only directed his reports to his supervisor, and not to “the
appropriate law enforcement authorities,” he cannot rely on the “clear statutory public policy
mandate [that] exists in Maryland that protects [private] employees from termination for
reporting suspected criminal activities to the appropriate law enforcement authorities.”
Porterfield v. Mascari II, Inc., 823 A.2d 590, 603 (Md. 2003); see Wholey, 803 A.2d at 496. 
7 

stated a claim for wrongful discharge based on the reason KONE allegedly provided for
terminating Plaintiff and any discrepancy with KONE’s purported actual reason for termination.
Plaintiff also asserts that “[i]t is unlawful in Maryland to [fire an employee for] refus[ing]
to commit an illegal act on behalf of the employer.” Pl.’s Opp’n 2. He claims that KONE asked
him to “write a false report as if [he] had witnessed [an] incident,” even though he “was off that
day” when the incident occurred. Id. It is true that public policy provides for a cause of action
when “‘an employee has been fired for refusing to violate the law’” at his employer’s direction.
Milton v. IIT Research Inst., 138 F.3d 519, 522 (4th Cir. 1998) (quoting Thompson v. Memorial
Hosp. at Easton, 925 F. Supp. 400, 406 (D. Md. 1996)). Also, “[a] person may not knowingly
make a false certification, false representation, or false statement in a[] . . . report . . . that is filed
or required to be kept under [MOSHA].”

Lab. & Empl. § 5-804(a).

KONE insists that

Plaintiff’s job encompassed “investigating and preparing reports regarding safety incidents that
Plaintiff did not personally observe,” and KONE’s request that Plaintiff report an incident did
not violate any law. Def.’s Reply 7. But, Plaintiff’s claim is not simply that KONE asked him to
write a report but rather that KONE asked him for a “false report.” Pl.’s Opp’n 2. This
statement is too vague to state a claim for wrongful discharge based on this public policy, see
Taylor, 993 F. Supp. 2d at 562; Milton, 138 F.3d at 522, and as noted, it is included improperly
in Plaintiff’s Opposition, not his Complaint, see Saunders v. Putnam Am. Gov’t Income Fund,
No. JFM-04-560, 2006 WL 1888906, at *2 n.2 (D. Md. July 7, 2006). Yet, considering this
assertion and the relevant law, it is not clear at this juncture that Plaintiff’s Complaint’s
“deficiencies are truly incurable” and “the complaint is truly unamendable.” See McLean, 566
F.3d at 400–01. Therefore, Plaintiff will be afforded the opportunity to amend to state a claim
for wrongful discharge, but only based on allegedly being terminated for refusing to write a false

8 

report for his former employer, and only if he can meet the requisite pleading requirements to
state such a claim. See id.
B. Other Cause of Action
Plaintiff asserts that the Complaint “is two fold [sic]” and involves “the expenses
associated with the site safety inspection at the Washington Metro Transit Authority (WMTA)
escalator project plus vacation, sick leave, bonus, and loss of income from the discharge,” as
well as the wrongful discharge claim. Pl.’s Opp’n 1. It is true that he alleges in his Complaint
that “the expenses associated with the site[] safety inspection at the Washington Metro Transit
Authority (WMTA) escalator project” are “[a]t issue.”

Compl. 1.

But, Plaintiff has not

identified either a statutory or a common law theory of relief that this Court recognizes. See Paul
Mark Sandler & James K. Archibald, Pleading Causes of Action in Maryland 2 (MICPEL 4th ed.
2008) (“[A] cause of action is a set of facts which would justify judgment for the plaintiff under
some recognized legal theory of relief.”). Therefore, Plaintiff has failed to state a claim based on
these facts. See Fed. R. Civ. P. 8(a)(2).
IV.

CONCLUSION
Accordingly, it is this 15th day of December, 2014, hereby ORDERED that:
1. Defendant’s Motion to Dismiss, ECF No. 10, IS GRANTED IN PART AND DENIED
IN PART WITHOUT PREJUDICE;
2. On or before January 5, 2014, Plaintiff may file an amended complaint for wrongful
discharge based on allegedly being terminated for refusing to write a false report for his
former employer, if he can meet the requisite pleading requirements to state such a claim;
3. In all other regards, Plaintiff’s Complaint IS DISMISSED;

9 

4. If Plaintiff does not file a timely amended complaint, this case will be dismissed in its
entirety with prejudice and without further notice; and
5. The Clerk IS DIRECTED to send a copy of this Memorandum Opinion and Order to
Plaintiff.
/S/
Paul W. Grimm
United States District Judge
lyb

10