Behan v. Gagliano

WENNER, Judge. The genesis of this appeal was a complaint for abusive discharge, invasion of privacy and defamation filed in the Circuit Court for Baltimore County by the appellee, Joseph Gagliano, Jr. The complaint also sought injunctive relief, damages and a show cause order against the appellant, Cornelius J. Behan, Chief of Police for Baltimore County, and other county officials. 1 The trial court, inter alia, dismissed the request for injunctive relief and show cause order. Ultimately, the issues of abusive discharge and defamation were submitted to a jury. 2 The jury returned a ⁷²¹ verdict in favor of the appellee. Appellant has turned to us for solace.

Upon appeal, he posits that: I. The trial court erred in refusing to grant the motions for judgment that were made on behalf of Chief Behan with respect to the claims for abusive discharge.

II

The trial court erred in refusing to re-instruct the jury in response to questions presented to the court during deliberations.

III

The trial court erred in its refusal to reduce or strike the verdicts which were entered by the jury. Because we believe that the trial court should have granted appellant’s motion for judgment with respect to the claim for abusive discharge, we shall reverse the judgment of the circuit court. Consequently, we need not address the remaining issues. Facts Appellee had been a Baltimore County police officer for just under two years when he injured his ankle. 3 There was conflicting testimony as to how the injury occurred.

Appellee contended that he was injured while on duty. As a consequence, pursuant to Md.Ann.Code, Art. 101, § 38 of the Worker’s Compensation Act, an “Employer’s First Report of Injury” was filed. Appellee was placed on the police department’s injured list and recuperated for five days. Following an internal investigation which concluded that the appellee’s injury had been incurred while he was off-duty, appellee was discharged from the police department.

Inasmuch as the department’s termination form indicated that appellee was discharged because of “falsification of a Workmen’s Compensation Form”, appellee contends that he was fired from the department for filing a worker’s compensation claim. Throughout these proceedings, by a varie ⁷²² ty of motions, appellant claimed that, as a matter of law, he was entitled to public official immunity. Following the return of the jury’s verdict, and the denial by the trial court of a spate of motions, this appeal ensued. Appellant first contends that the circuit court should have granted his motion for summary judgment, motion for judgment, motion for judgment notwithstanding the verdict, or in the alternative, motion for new trial, or motion to revise, and. motion for reconsideration.

Specifically, appellant contends that he was entitled to judgment as a matter of law because: (1) appellee failed to allege and prove facts sufficient to establish the elements of abusive discharge; and (2) appellee failed to prove actual malice on the part of appellant so that appellant was entitled to public official immunity. We agree with appellant that the appellee failed to prove actual malice. Consequently, we shall address only that issue. A public servant is entitled to public official immunity if: (1) the public servant is a public official; (2) the alleged culpable conduct was committed by the official while acting in a discretionary capacity; and (3) the official acted without actual malice.

Leese v. Baltimore