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Employer Can Fire Employee Who Insists on Consulting Lawyer
by Gerard Panaro, BOL Guru
 An employee who is fired for saying that she would consult with a lawyer before signing a written warning of inadequate job performance states no cause of action for "wrongful discharge" under Maryland law, the Maryland Court of Appeals ruled in Porterfield v. Mascari II, Inc., 2003 WL 21026747 (Md., 2003).
The plaintiff worked as an administrative assistant at a senior care facility. After receiving a written "Employee Warning," she told her supervisors that she had been advised to consult an attorney before "formally responding" to the warning. Her employment was terminated almost immediately. She sued. The question before the Court of Appeals was: Is it a violation of public policy sufficient to support a wrongful discharge action in Maryland when an employer fires an at-will employee for stating her intent to seek advice from legal counsel before responding to an adverse employment evaluation? The Court of Appeals's answer was no.
At one point, the nursing home issued a new recruiting policy for potential care-givers. On at least two occasions, the plaintiff was reprimanded for failing to adhere to the policy. She was issued a written "Employee Warning Report" warning her that she would be discharged if the home didn't see "marked improvement at the end of the next four weeks." The owner asked the plaintiff to sign the warning report, but she said that she wanted to take the document home and review it.
On the following day (a Tuesday), the plaintiff called and said that due to false statements in the warning, she had been advised to talk to a lawyer before responding. She said she would respond by Friday, but that it might take till the following Monday. The owner called her back and told her that she was fired.
Plaintiff sued for wrongful discharge in violation of public policy, the public policy being, she argued, that Maryland "mandated that all persons be permitted freely to consult with an attorney of their choice concerning matters of importance in their lives, including matters related to their employment." As evidence of the public policy, the plaintiff cited the Maryland Declaration of Rights (Maryland Constitution), decisions of the Court of Appeals itself, the attorney-client privilege, and the Maryland Legal Services Corporation Act.
The plaintiff alleged that she was discharged because the owner of the home knew the grounds of the warning report were false and feared that the plaintiff would retain a lawyer and sue her (the owner) for defamation, or alternatively, that the owner did not want to work with an employee who had consulted an attorney regarding a work-related dispute.
The court began its analysis with the employment at will rule, which Maryland follows. The "major premise" of the employment at will "doctrine," the court said, "is that an employment contract is of indefinite duration, unless otherwise specified, and may be terminated legally at the pleasure of either party at any time." Of course, as the court immediately went on to state, an employer may never discharge an employee for an illegal or unlawful reason, such as race, sex, religion, etc. Many statutes also have their own "anti-retaliation" provisions, so that even an at will employee cannot be dismissed for exercising rights under the statute (workers comp, for example, OSHA, jury duty).
Another exception to the employment at will rule (in other words, reasons for which an employer may not dismiss even an at will employee) is the so-called "wrongful discharge in violation of public policy." As explained by the Court of Appeals, "The public policy exception to the at-will employment doctrine holds that an employee who has been 'discharged in a manner that contravenes public policy,' may bring a cause of action in tort 'for abusive or wrongful discharge against his former employer.' ... To find that an employer acted in a manner such as to justify a claim for wrongful discharge, there must first be a clear mandate of public policy that was contravened by the discharge." The definition of "public policy" which the Maryland Court of Appeals has adopted is: "Public policy is that principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against the public good, which may be termed, as it sometimes has been, the policy of the law, or public policy in relation to the administration of the law."
Maryland limits this "public policy" exception to the employment at will rule in several ways: one, the "public policy" must be clear, as stated in laws, regulations or judicial opinions. Two, if the cited law or regulation itself provides its own remedy for dismissal, then the plaintiff must rely on his or her statutory remedies and may not sue for wrongful discharge. One example of Maryland "public policy" that the court cited is the one that protects employees from termination for reporting suspected criminal activities to the appropriate law enforcement authorities.
Another example the court gave is the Maryland Fair Employment Practices Act ("FEPA"). That law states a "sufficiently clear" public policy against discrimination; but it applies only to employers with 15 or more employees. Therefore, the Court of Appeals held that plaintiffs could sue for wrongful discharge employers who were otherwise excluded from coverage by the FEPA. (In another case, the Court of Appeals also held that a plaintiff could sue for wrongful discharge where her supervisor sexually harassed her by putting his hands on her shoulders and attempting to bite her. Such physical touching amounts to assault and battery. While Title VII remedies sexual harassment, it doesn't address assault and battery.)
In the Porterfield case, however, the Court of Appeals rejected the plaintiff's public policy argument essentially for two reasons: one, the "right to counsel," or to have access to a lawyer in certain situations, is not the same as merely expressing the desire to consult a lawyer. Two, if the court were to make such a connection (advice or desire to consult counsel is protected by the same public policy that protects the right to counsel), it would immunize employees from adverse employment actions by simply announcing, "I'm calling a lawyer." The Court of Appeals agreed with the nursing home that Maryland does not recognize a wrongful discharge action based on the right to counsel as its public policy base. More broadly, "there ordinarily is no violation of public policy by an employer's discharging an at-will employee in retaliation for that employee's suing the employer."
First published [date] in Fair Employment Practices Guidelines, a
semimonthly publication by Aspen Publishers, 1185 Avenue of the Americas.
New York, NY.
About the Author:
Gerard P. Panaro has more than 25 years' experience in employment law and is
available to assist readers on an individual basis. You may reach him at
202-861-1314. Mr. Panaro is of counsel with Howe & Hutton, in the
Washington, DC office.
First published on BankersOnline.com
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