Mott v. Accenture, LLP

Filing 40

MEMORANDUM OPINION. Signed by Judge Paula Xinis on 10/17/2017. (jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOSEPH M. MOTT,

*

Plaintiff,

*

v.

*

ACCENTURE, LLP,

Civil Action No. PX-17-0231

*

Defendant.

*
*****
MEMORANDUM OPINION

Plaintiff Joseph Mott (“Mott”) brings this employment action against his former
employer, Defendant Accenture, LLP (“Accenture”). Mott alleges in his Amended Complaint
that Accenture discriminated against him on the basis of age, gender, national origin, and mixed
motives during his employment; that Accenture illegally retaliated against him for engaging in
protected activities; that his discharge from Accenture was unlawful in light of clear mandates of
Maryland public policy; and that Accenture illegally withheld a bonus to which Mott is entitled.
ECF No. 35 (“Amend. Comp.”).
The Court previously denied Accenture’s motion to dismiss and directed Mott to amend
his complaint to cure identified deficiencies. See ECF No. 30. The Court also preliminarily
entertained Accenture’s grounds for dismissal of Count VI of Mott’s Complaint, a claim for
wrongful discharge against a clear mandate of public policy, but ultimately gave Mott time to
consider whether it would pursue the Count. If Mott elected to persist in Count VI, the Court
granted Mott leave to respond to Accenture’s Motion to Dismiss as to that count.

1

On August 6, 2017, Mott filed an Amended Complaint that included Count VI. Amend.
Comp. ¶¶ 68–76. Mott also responded to Accenture’s arguments for dismissal of Count VI on
August 16, 2017. ECF No. 38. Accenture replied on August 30, 2017. ECF No. 39. The Court
now must decide whether to permit this claim to go forward. For the reasons discussed below,
Count VI is DISMISSED.
I.

BACKGROUND
This case has been before this Court previously, and the facts alleged are largely

unchanged. See ECF No. 30. Mott, who is now 64, is a resident of Maryland who is of
American national origin. Mott worked remotely from Maryland for Accenture, an Illinois
limited liability partnership qualified to do business in the State of Maryland. Amend. Comp. ¶¶
1, 2, 6. In his Amended Complaint, Mott alleges that several of his supervisors and coworkers,
including Charlotte Guillorit, a French national located in France, id. ¶ 9, Abe Zachariah, id. ¶
10, Hollis Chen, id. ¶ 11, Arnaud Mottet, of French national origin, id. ¶ 11, Fauzia ZamanMalik, id. ¶ 15, Catherine Walter, a French national who lives in Paris, id. ¶¶ 24, 36, Michael
Camarotta id. ¶ 29, and Toni Corban id. ¶ 52, treated Mott in a hostile and discriminatory
fashion, retaliated against him for protesting discrimination and hostility, and/or knowingly
permitted others’ hostile and discriminatory behavior toward Mott to continue. Mott also alleges
that he was passed over for promotion within the company, with the position instead going to a
younger, female, and non-American candidate. Id. ¶ 24. Mott further alleges that he was subject
to an escalating pattern of alleged hostile and discriminatory conduct which culminated in his
termination over the protests that Mott had lodged with Accenture leadership, including to Chad
Jerdee, General Counsel and Chief Compliance Officer, and Patrick Rowe, Deputy General
Counsel for the division in which Mott worked and Guillorit’s supervisor. Id. ¶¶ 46, 49, 50–53.
2

Count VI specifically avers that Accenture’s discriminatory practices, undertaken by its
attorneys as supervisors, gives rise to a claim for the tort of wrongful discharge as against
Maryland public policy. Id. ¶¶ 68–76. Mott points to the American Bar Association’s Model
Rules of Professional Conduct (“Model Rules”) 8.4 and the Maryland Attorney’s Rules of
Professional Conduct (“MLRPC”) Rule 19-308.4 as the sources of the public policy contravened
by his discharge. Id. ¶¶ 69, 70. In relevant part, Model Rule 8.4 provides that it is professional
misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know
is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity,
disability, age, sexual orientation, gender identity, marital status or socioeconomic status in
conduct related to the practice of law.” ABA Model Rules of Prof’l Conduct R. 8.4(g). The
MLRPC, in turn, provides that it is professional misconduct for an attorney to “knowingly
manifest by words or conduct when acting in a professional capacity bias or prejudice based
upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic
status when such action is prejudicial to the administration of justice.” Md. R. Attorneys R. 19308.4(e). Mott further alleges that the Model Rules and the MLRPC constitute a clear mandate
of public policy under Maryland law that gives rise to a heightened duties of care, which
Accenture’s attorneys violated by discriminating against him. Amend. Comp. ¶¶ 71, 72, 74.
Accenture counters that the Model Rules are not applicable in Maryland, that the Model
Rules and the MLRPC do not constitute clear mandates of Maryland public policy, and that Mott
may not recover under the tort of wrongful discharge because the same conduct can be addressed
adequately by statutory remedies. ECF No. 39 at 3–4, 6–8. Accenture further argues that
because the MLRPC expressly states that the rules do not give rise to a cause of action against
attorneys, neither can it provide the basis for a wrongful discharge claim. Id. at 3–4. Accenture

3

also points out that Mott has not alleged that the MLRPC apply to any of the Accenture
employees about whom he complains. Id. at 2–3.
II.

DISCUSSION
A. Standard of Review
When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6), a court must determine whether the complaint contains facts sufficient to state a claim
to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Factual allegations in the complaint are taken as true, but a court need not accept a plaintiff’s
legal conclusions, even when they are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A plaintiff must plead facts to support each element of the claim to satisfy the
standard. See McCleary-Evans v. Maryland Dept. of Transp., State Highway Admin., 780 F.3d
582, 585 (4th Cir. 2015).
B. The Tort of Wrongful Discharge in Violation of Public Policy
Although an at-will employment relationship in general may be terminated for any reason
by either the employee or the employer, Maryland recognizes a limited exception to this rule
when an employee’s discharge “contravenes some clear mandate of public policy.” Adler v. Am.
Standard Corp., 291 Md. 31, 35–36, 47 (Md. Ct. App. 1981); see also Porterfield v. Mascari II,
Inc., 374 Md. 402, 422–23 (Md. Ct. App. 2003). To state a claim for wrongful discharge in
violation of public policy, a plaintiff must allege plausibly (1) that he was discharged, (2) that the
basis for the discharge violated some clear mandate of public policy, and (3) that a nexus exists
between the plaintiff’s allegedly protected conduct and the decision to discharge him. See Yuan
v. Johns Hopkins Univ., 452 Md. 436, 451 (Md. Ct. App. 2017) (internal marks and citation
4

omitted). Importantly, the public policy which the plaintiff alleges provides the basis for the
wrongful discharge claim cannot provide its own cause of action. Makovi v. Sherwin-Williams
Co., 316 Md. 603, 605 (1989). This is so because the purpose of the tort of wrongful discharge
is “to provide a remedy for otherwise unremedied violations of public policy.” Porterfield, 374
Md. at 423.
As an initial matter, Count VI cannot survive unless “a clear mandate of public policy”
was “contravened by the discharge.” Porterfield, 374 Md. at 423. Consequently, the Court must
first determine whether Mott has averred the existence of a clear mandate of public policy.
Mandates of public policy are “confin[ed] . . . to clear and articulable principles of law,”
Porterfield, 374 Md. at 423 (internal marks and citation omitted), and the source of the mandate
must “be a preexisting, unambiguous, and particularized pronouncement” that “make[s] the
Maryland public policy on the topic not a matter of conjecture or even interpretation,” King v.
Marriott Int’l, Inc., 160 Md. App. 689, 702 (Md. Ct. Spec. App. 2005) (internal marks omitted)
(quoting Adler, 291 Md. at 45). See also Miller v. U.S. Foodservice, Inc., 405 F. Supp. 2d 607,
610 (D. Md. 2005). Maryland courts have cautioned explicitly that not all laws or statements of
public policy give rise to wrongful discharge claims. See Yuan v. Johns Hopkins Univ., 227 Md.
App. 554, 568 (Md. Ct. Spec. App. 2016) (“There are many public policies implicated in the
employer-employee relationship, but few of them can form the basis for a wrongful discharge
tort.”). Nor have Maryland courts found that every state statute or regulation rises to the level of
a clear mandate of public policy. See Szaller v. Am. Nat. Red Cross, 293 F.3d 148, 151 (4th Cir.
2002). Courts must “limit[ ] judicial forays into the wilderness of discerning public policy
without clear direction from a legislature or regulatory source.” Id. (quoting Milton v. IIT
Research Inst., 138 F.3d 519, 523 (4th Cir. 1998)). Such claims, cautions the Maryland Court of
5

Appeals, should be allowed sparingly, and must be narrowly circumscribed. See Porterfield, 374
Md. at 423.
Mott relies on the ABA Model Rules and the MLRPC as the sources of his claimed
“clear mandate of public policy.” Neither is sustainable. The Court addresses each in turn.
A. ABA Model Rules
Accenture argues that the Model Rules are guidelines, not rules that bind any particular
jurisdiction or attorney. ECF No. 39 at 3. The Court agrees. Contrary to Mott’s assertions, the
Model Rules are not binding on any lawyers in any jurisdiction, let alone in Maryland. Rather,
each jurisdiction is left to determine for itself whether to adopt the ABA Rules or other ABA
guidance. Cf. American Bar Association, ABA Model Rules of Professional Conduct—About the
Model Rules,
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_pr
ofessional_conduct.html (last visited Oct. 12, 2017) (the Model Rules “serve as models for the
ethics rules of most states”); Attorney Grievance Comm’n of Maryland v. Gregory, 311 Md. 522,
531 (Md. Ct. App. 1988). Maryland has adopted only some of the Model Rules. See Model
Rules Comparison, Md. R. Attorneys R. 19-308.4 (Maryland’s rule is “substantially similar” to
the language of the 2000 Amendments to the Model Rules, but noting that Rule 19-304(e) as
well as commentary to the rule is dissimilar). Mott provides no legal support whatsoever to view
the ABA Model Rules as the source of a mandate of Maryland public policy, let alone one that is
sufficiently clear and definite that it may serve as the basis for his wrongful discharge claim.
This Court will not stretch to give the Model Rules the force and effect of a clear mandate of
public policy without more.

6

B. MLRPC
As to the MLRPC, Count VI suffers from a more basic problem. Putting to one side
whether the MLRPC can be construed as a clear mandate of public policy, Mott has failed to
demonstrate how a policy embodied in the MLRPC would reach the Accenture employees about
whom he complains. The Amended Complaint avers that Mott lives in and works remotely from
Maryland. Amend. Comp. ¶ 1. However, Mott does not allege that any of the lawyers he
worked with or for were Maryland-barred attorneys or were practicing law in Maryland. Indeed,
the Amended Complaint in many instances demonstrates the opposite. See, e.g., Amend. Comp.
¶¶ 9, 18, 24, 36.
The MLRPC plainly applies to lawyers admitted to the Maryland Bar or practicing
before Maryland state and federal courts. No support exists to extend those rules to lawyers not
admitted or practicing in Maryland. Cf. Md. R. Gen. R. 1-101 (Applicability); Md. R. Attorneys
R. 19-305.5(a) (“An attorney shall not practice law in a jurisdiction in violation of the regulation
of the legal profession in that jurisdiction.”); Md. R. Attorneys R. 19-210 & Note (attendance at
mandatory orientation program for newly admitted attorneys that includes coverage of the
MLRPC is necessary “to assure that [they] are familiar with core requirements for practicing law
in Maryland”); Md. R. Attorneys R. 19-214(d) (“An [out-of-state] attorney specially admitted is
subject to the Maryland Attorneys’ Rules of Professional Conduct during the pendency of the
action or arbitration.”); D. Md. Loc. R. 703, 704. Furthermore, Maryland has not expressed any
interest in regulating the behavior of attorneys not barred or practicing in Maryland. To suggest
that Maryland’s public policy includes a clear mandate relating to the behavior of non-Maryland
lawyers would require this Court to undertake a “foray[ ] into the wilderness of discerning public

7

policy,” which this Court cannot do. Szaller, 293 F.3d at 151. Accordingly, Count VI based on
claimed violations of the MLRPC must fail.
Notably, even if the MLRPC somehow reached the Accenture lawyers named in the
Amended Complaint, the specific MLRPC provisions on which Mott relies do not constitute a
clear mandate of public policy sufficient to sustain the wrongful discharge claim. Mott argues
that the MLRPC “clearly demonstrate a public policy governing the conduct of lawyers as
officers and managers of a corporation.” ECF No. 38 at 8. However, the rule upon which Mott
relies is limited to conduct “prejudicial to the administration of justice.” Md. R. Attorneys R. 19308.4(e). This rule on its face does not cover the day-to-day management of a law firm or other
office. Mott attempts to stretch the significance of this provision by asserting it is intended to
vindicate “the clear public policy . . . that ‘a commitment to equal justice under the law lies at the
very heart of the legal profession.’” ECF No. 38 at 12–13 (quoting Md. R. Attorneys R. 19308.4 cmt. [4]). But this claim proves too much, because then every act of an attorney, in or out
of the courtroom, client or non-client related, could be considered part of the “administration of
justice.” Cf. King, 160 Md. App. At 702 (the source of the mandate must be a “particularized
pronouncement”); Szaller, 293 F.3d at 152 (it would be “astonishing” to impose the Code of
Federal Regulations on Maryland employers through wrongful discharge claims in part because
of the “overwhelming burden” it would place on them). This Court, therefore, does not endorse
a generalized commitment to equality in the administration of justice as a clear mandate of
public policy that can give rise to a wrongful discharge claim in the context of attorneys
managing other attorneys in the workplace.
Mott principally relies on the Maryland Court of Appeals decision in Post v. Bregman,
349 Md. 142 (Md. Ct. App. 1998), to convince this Court otherwise, arguing that Post held the
8

MLRPC to constitute “an expression of public policy having the force of law.” Id. at 163. But
Mott misapprehends the force of Post. The Court of Appeals’ holding was limited to a single
MRLPC provision, MLRPC Rule 1.5(e), which governs fee splitting among lawyers from
different firms and has no bearing on Mott’s claims. See Goldman, Skeen & Wadler, P.A. v.
Cooper, Beckman & Tuerk, LLP, 122 Md. App. 29, 43, 712 A.2d 1, 7–8 (Md. Ct. Special App.
1998) (“Post only explicitly concerns use of MLRPC Rule 1.5(e) as an equitable defense to a
breach of contract suit. . . . Post clearly contemplates, however, that a defense based on the
MLRPC may not be available in every circumstance.”). Without more, this Court cannot read
Post so broadly as to cover Mott’s claim here. This is especially so when considering that even
policies having the force of law do not necessarily give rise to a wrongful discharge claim. See
Szaller, 293 F.3d at 151 (citing Bagwell v. Peninsula Reg’l Med. Ctr., 106 Md. App. 470, 665
(1995)); Yuan, 227 Md. App. at 568 (“There are many public policies implicated in the
employer-employee relationship, but few of them can form the basis for a wrongful discharge
tort.”); cf. Stratagene v. Parsons Behle & Latimer, 315 F. Supp. 2d 765, 774 (D. Md. 2004) (no
legal malpractice claim under Rule 1.9 even assuming the MLRPC constitutes public policy
having the force of law). Because Mott has not convinced this Court that a clear mandate of
public policy inheres in MLRPC Rule 19-308.4, Count VI cannot survive.1
III.

CONCLUSION
Mott has failed to state a claim that plausibly entitles him to relief on Count VI of the

Amended Complaint. Count VI is DISMISSED with prejudice. A separate order will follow.

1

Because the Court has determined that Mott has failed to identify a clear mandate of public policy which has been
breached, it need not reach Accenture’s alternative argument that under Makovi and its progeny, that Count VI
cannot proceed because a statutory remedy for the wrongdoing is already available to Mott. See Porterfield, 374
Md. at 423 (the first step in the wrongful discharge analysis is determining whether there is a clear mandate of
public policy contravened by the discharge).

9

10/17/2017
Date

/S/
Paula Xinis
United States District Judge

10