Bleich v. Florence Crittenton Services of Baltimore, Inc.

MOTZ, Judge. This appeal involves a claim of wrongful discharge and intentional interference with business relationships. (i) From 1983 to 1992, appellant, Florence H. Bleich, was employed by appellee, Florence Crittenton Services of Baltimore, Inc. (FCS), a non-profit agency that provides residential and educational programs and services for adolescent females in personal crisis. FCS is licensed as a residential child care facility through the Maryland Department of Human Resources Social Service Administration’s Group Licensing Unit.

See Md.Fam.Law Art. §§ 5-501 to 5-588 (1984, 1991 Repl. Yol., 1992 Cum.Supp.). Appellee, Anne S. Davis, has been executive director of FCS since 1977. Ms. Bleich began working for FCS in December, 1983 as a teacher in the area of child development and life skills.

In February 1990 she was made a full-time teacher; however, effective January 3, 1992, assertedly because of programmatic ¹²⁷ and economic changes, her hours were reduced to twenty hours a week. Her last performance review, prior to the events leading to this lawsuit, was completed in June, 1991. In it she was rated eight or better, out of a possible ten, in all — twelve—categories. The evaluation stated that she was “a key member of the teaching staff____willing to take on responsibility not assigned as part of her job description [and]____ willing to help out in areas that are not always covered by her job title.” The evaluation was completed by Ms. Bleich’s immediate supervisor, David Barnstable, and reviewed by Ms. Davis.

In her affidavit, Ms. Bleich stated that beginning in 1991 “the atmosphere at FCS began to change dramatically.” “Gang type groups” began forming among various residents. “[TJhere were several incidents in which residents and staff were intimidated, assaulted and battered by other residents.” One such incident occurred in November of 1991 when a “riot situation” occurred, “residents and staff were assaulted by other residents,” “police were called to FCS to intervene, and a total of 17 of the 23 residents were removed from FCS.” Ms. Bleich further stated that “[b]ecause of [her] concerns for the health, safety and well-being of the residents of FCS and its staff, on numerous occasions [she] expressed concern about this unsafe environment to both [appellee] Davis and [Ms. Bleich’s] direct supervisor, Barnstable.” On January 7, 1992, during a clinical staff meeting attended by Ms. Davis and other FCS staff, Ms. Bleich again “voiced concerns regarding what [she] believed to be the dangerous and unsafe situation for the residents and staff at FCS;” she stated that she “believed that a major cause of these problems was the lack of effectiveness of the administration at FCS.” After that meeting and for the next several months, her concerns for the health and safety of residents and staff “continued to intensify” and she continued to voice these concerns to Ms. Davis and Mr. Barnstable. When it did not appear to Ms. Bleich that Ms. Davis was “taking any actions to address these dangerous situations,” on Friday, March 13, she wrote and mailed a letter to the State ¹²⁸ licensing specialist assigned to FCS. That letter stated, in pertinent part: There needs to be an immediate investigation of Florence Crittenton Services (FCS). The safety of both the residents and the staff is questionable to say the least.

Within the resident population there’s what appears to be a gang-type movement afoot. In some respects it seems that the residents run the agency by intimidation, threats, blatant disrespect, and attacks on their peers as well as members of the staff. How can the specific needs of the residents be properly addressed if the children aren’t safe from one another, in what’s supposed to be an environment of safety and care? It appears to me, that there’s scant internal administrative control.

In some regards these children might be safer in the environments from which they’ve been removed. Ms. Bleich signed the letter, identifying herself as an employee of FCS, and provided her home address; she also sent copies of the letter to L. Carl Holmes, the President of the FCS Board of Directors, Ms. Davis, other FCS staff, and Sergeant Bull of the Baltimore City Police Department. On Monday, March 16, 1992, Ms. Bleich received a letter, dated March 13, hand-delivered by a messenger service, from Ms. Davis. That letter advised Ms. Bleich that her employment with FCS was “terminated effective March 13, 1992 at the close of the business day.” The letter explained that “[t]his action is due to a consistent lack of respect for agency policies, procedures, and management decisions as expressed in your memo dated 3/7/92.” Ms. Bleich sent copies of her March 7, 1992 memo to Ms. Davis, Mr. Holmes, Mr. Barnstable, and other FCS staff advising them that Ms. Bleich would not be taking a FCS resident out job hunting and stating: It’s obvious, that administratively, nothing has been planned for residents who need to seek employment.

It’s a disgrace that appropriate financial provisions have not been made for ¹²⁹ such situations! How on earth can the administration, of Florence Crittenton Services, claim to be steering youth towards independence if something as basic and necessary as this has not been planned for? This memorandum apparently responded to Ms. Davis’s memorandum of March 6, 1992 informing Ms. Bleich that: As per your conference with Mr. Barnstable today, we will pay you an hourly wage at your normal rate when you. are involved in taking [a resident] on interviews. I have been in touch with the Department of Juvenile Services to ascertain if they will contract for this service.

I feel we will be able to get some funds to carry this out. However, we must at this time limit it to two weeks, as we evaluate it to see how many hours are involved. We must write a proposal to get it funded, therefore we must first document the time. We will be taking this on a case by case basis until the Independent Living Program is funded.

Mr. Holmes, Ms. Davis, and Mr. Barnstable stated in their similarly worded affidavits that they consulted on March 13, 1992 and “decided to terminate Ms. Bleich’s employment with FCS effective that day, March 13, 1992,” because of her “consistent lack of respect for agency policies, procedures and management decisions, particularly as reflected” in the “insubordinate [March 7] memo.” They further asserted that Ms. Bleich “had previously written a letter” to a State education official “without any authorization or knowledge of FCS, inquiring about the status of a special education program at FCS” and that letter was “also a factor in the decision to discharge Bleich.” They all swore that the decision to discharge Ms. Bleich was made “prior to ... receipt” of Ms. Bleich’s letter complaining to the State licensing authorities about FCS and that Ms. Bleich’s letter to the licensing authorities “was not a factor in the decision to discharge” her. Mr. Holmes, Ms. Davis, and Mr. Barnstable explained in their affidavits that the termination letter was prepared by Ms. Davis on Friday, March 13, 1992, and was not mailed that ¹³⁰ day only because “all such letters are reviewed by counsel for FCS and counsel was out of town and unavailable.” When Ms. Davis still could not reach counsel on Monday morning, March 16, she contacted another attorney, who reviewed it; Ms. Davis then “gave the letter ... to a messenger for delivery to Ms. Bleich.” It was not until after Ms. Davis sent that letter that, she asserts, she learned from Mr. Holmes that he had received in the mail a copy of Ms. Bleich’s letter to State licensing authorities. One of FCS’s lawyers filed an affidavit stating that he was unavailable on March 13, 1992, and “Ms. Davis left a message on my voice mail advising that FCS had decided to terminate an employee, and requesting that I call her as soon as possible to discuss the termination.” The lawyer did not “return from vacation until March 23,1992, at which time [he] heard Ms. Davis’ message on [his] voice mail.” On July 21, 1992, Ms. Bleich filed a two-count complaint against FCS and Ms. Davis. Count One asserted that FCS and Ms. Davis wrongfully discharged Ms. Bleich; Count Two asserted that Ms. Davis intentionally interfered with Ms. Bleich’s business relationships with FCS.

On August 24,1992, FCS and Ms. Davis filed an extensive “motion to dismiss, or in the alternative, motion for summary judgment;” the motion was supported by a nineteen page memorandum, four affidavits, and two additional exhibits. On October 5, 1992, Ms. Bleich filed a twenty-eight page memorandum in response to that motion, which was supported by Ms. Bleich’s affidavit, and eight exhibits. FCS and Ms. Davis promptly countered with another long (18 pages) memorandum. On October 13, 1992, the Circuit Court for Baltimore City issued an order granting the motion.

There is no transcript of the oral argument before the circuit court; the order provided in its entirety: Upon consideration of Defendant’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, and Plaintiffs Opposition thereto, it is this 13th day of October, 1992, by the undersigned, one of the Judges of the Circuit Court for Baltimore City, hereby ¹³¹ ORDERED, the Defendants’ Motion to Dismiss Counts I and II of the Complaint is hereby GRANTED; and IT IS FURTHER ORDERED, that Plaintiff shall have 30 days leave to amend the Complaint. When Ms. Bleich failed to amend her complaint, the defendants moved to dismiss it with prejudice, which the court did in an order dated December 21, 1992. On appeal, Ms. Bleich raises four questions: 1. Whether the public policy of Maryland prohibits an employer from discharging an employee because she has acted to protect the health and safety of children in residential settings. 2.

Whether plaintiff properly alleged a wrongful discharge claim under the State’s important public policy of protecting free speech on matters of public importance. 3. Whether defendants were entitled to summary judgment where there were contested issues of fact and credibility determinations which must be determined by a jury. 4. Whether appellant properly stated claims against Davis individually for wrongful discharge and for intentional interference with contractual relations. 1 (ü) Although no party raises the question, it seems to us that it is, at the very least, unclear precisely what is before us for review and what standard of review is appropriate. As noted above, FCS and Ms. Davis moved to dismiss the complaint, or in the “alternative ... for summary judgment.” Moreover, they submitted extensive memoranda, four affidavits, and two exhibits, in support of that motion.

Ms. Bleich expressly responded to the “alternative” motion, and she supported her response with an even more extensive memo ¹³² randum, her lengthy affidavit, and eight exhibits. Md.Rule 2-322(c) provides that [i]f on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.... (emphasis added). In view of both sides’ numerous submissions of “matters outside” the complaint and the circuit court’s failure to exclude these “matters” from consideration, ordinarily we would follow the mandate of Md.Rule 2-322 and “treat” the court’s order as the grant of summary judgment.

See Hrehorovich v. Harbor Hosp. Ctr., 93 Md.App. 772, 781 , 614 A.2d 1021 (1992); Haselrig v. Public Storage, 86 Md.App. 116 , 118 n. 1, 585 A.2d 294 (1991); Castiglione v. Johns Hopkins Hosp., 69 Md.App. 325, 332 , 517 A.2d 786 (1986), cert. denied, 309 Md. 325 , 523 A.2d 1013 (1987). This is so even though the lower court’s order stated that the motion to dismiss “is hereby granted.” See Haselrig, 86 Md.App. at 118 n. 1, 585 A.2d 294 . The particular difficulty here is that there is nothing in the record of this case that in any way indicates that the circuit court did consider “matters outside the pleading” when ruling on the defendant’s motion.

In contrast, in Castiglione the circuit court expressly based its grant of the motion on an “unverified exhibit,” 69 Md.App. at 332 , 517 A.2d 786 , and in Haselrig , the trial court, in granting the motion, “relied upon provisions of the employee handbook” not pleaded by the plaintiff. 86 Md.App. at 118 n. 1, 585 A.2d 294 . In Hrehorovich , there was an “absence of an express indication of how the trial judge treated the case.” 93 Md.App. at 783 , 614 A.2d 1021 . We concluded, however, that since the circuit court’s order in Hrehorovich expressly stated that it had “considered” the “submissions of counsel” and did not indicate that “appellee’s references to facts not plead [sic] by appellant were improper or excludable,” the order would be treated as one granting summary judgment. Id.

Here, not only is there no “express indication” that the circuit court considered “matters ¹³³ outside the pleadings,” and no statement that the circuit court considered “the submissions of counsel,” but also there is an implicit indication that the court only granted a motion to dismiss. That is, the court’s original grant of the motion was with leave to amend within thirty days. If the court had treated the motion to dismiss as one for summary judgment and had considered all materials “outside the pleadings” submitted by the parties, then such an order would seem to be unnecessary and improper. In other words, if summary judgment was warranted in the first instance, then it would seem that no amendment would, or could, change that result.

Determination of whether the circuit court granted a motion for summary judgment or a motion to dismiss is important because, as Judge Harrell explained in Hrehorovieh, when: reviewing the grant of either a motion to dismiss or a motion for summary judgment, an appellate court must determine whether the trial court was legally correct[,] ... this determination depends on the nature of the relief given. The grant of a motion to dismiss is proper if the complaint does not disclose, on its face, a legally sufficient cause of action. Bramble v. Thompson, 264 Md. 518, 520 , 287 A.2d 265 (1972). On the other hand, the grant of a motion for summary judgment is proper only if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law.

Brady v. Ralph Parsons Co., 308 Md. 486, 495 , 520 A.2d 717 (1987). 93 Md.App. at 785 , 614 A.2d 1021 . In the interests of judicial economy and because all parties have fully briefed and argued this case as if the circuit court granted alternative relief, i.e., dismissing the complaint or, in the alternative, granting summary judgment, we can and will, in this case, consider the propriety of both. We caution the litigants and trial courts, however, as we did in Hrehorovieh, that “failure to articulate clearly the nature of [a] ruling in these circumstances is risky business.” Id. at 784 , 614 A.2d 1021 . In another case with a similar record, a party might well assert that the only order before us was that granting a ¹³⁴ motion to dismiss and we might have no choice but to consider only the appropriateness of that order.

See Antigua Condominium Ass’n v. Melba Investors Atlantic, Inc., 307 Md. 700, 719 , 517 A.2d 75 (1986). Such a result would not benefit anyone or serve the interests of judicial economy. (iii) The first inquiry on the merits is whether Count One, which alleges that FCS and Ms. Davis wrongfully discharged Ms. Bleich, states a cause of action under Maryland law. In the proper circumstances, an at-will employee can assert a cause of action for wrongful discharge in Maryland.

See Adler v. American Standard Corp., 291 Md. 31, 47 , 432 A.2d 464 (1981). Although case law is still “quite sparse,” it is clear that this cause of action for wrongful discharge “will lie only where the employer’s motivation in discharging the employee contravenes some clear mandate of public policy.” Miller v. Fairchild Industries, 97 Md.App. 324, 335 , 629 A.2d 1293 (1993); see also Adler, 291 Md. at 47 , 432 A.2d 464 . Moreover, “[legislative enactments, prior judicial decisions, [and] administrative regulations” are “the chief sources of public policy.” Lee v. Denro, 91 Md.App. 822, 830 , 605 A.2d 1017 (1992) (quoting Adler, 291 Md. at 45 , 432 A.2d 464 ). The first public policy mandate that Ms. Bleich asserts was violated by her discharge is not found in a prior judicial decision, legislative enactment, or administrative regulation.

Rather, it is the policy expressed in the free speech guarantees of the First Amendment of the United States Constitution and Article 40 of the Maryland Declaration of Rights. Ms. Bleich acknowledges, as she must, that FCS is a private, rather than a public, employer. She does not assert that FCS is, nevertheless, a state actor or even that FCS is “liable for directly violating” her free speech rights. Instead, she maintains that the public policy in the State and federal constitutions “that an individual should not be penalized for exercising speech on matters of great importance” is violated when an employee is terminated “for speaking on such matters.” ¹³⁵ We recently rejected an indistinguishable claim of wrongful discharge against another private employer.

Miller v. Fairchild Indus., 97 Md.App. at 336-37 , 629 A.2d 1293 . As Judge Bloom explained for the Court: There can be no question that a retaliatory plant closing of the nature and for the reason alleged here would have an alarming potential to chill free speech. We cannot, however, say that such closings constitute violations of public policy that would give rise to an abusive discharge claim. The task of defining public policy is best left to elected representatives of the people, and it is well settled that courts should undertake the task only with “the utmost circumspection.” Adler, 291 Md. at 46 [ 432 A.2d 464 ], quoting Patton v. United States, 281 U.S. 276 , 50 S.Ct. 253 , 74 L.Ed. 854 (1930).

Constitutional prohibitions do not currently extend to private actors. This Court will not do what the framers of the state and federal constitutions themselves declined to do. We will not expand the reach of constitutional restraints. Id.

Constitutional free speech guarantees provide no sounder basis for a claim of wrongful discharge here than they did in Miller . Ms. Bleich’s claim that her discharge by a private employer was wrongful because it was in retaliation for her exercise of her free speech rights fails to state a cause of action. Ms. Bleich, however, asserts that a second public policy mandate was also violated by her termination. That is the policy found in Md.Fam.Law Art. §§ 5-502(b), 5-702(1), 5-704(a) 2 and the regulations implementing those statutes, CO-MAR 07.02.23.06D(l)(a) and 07.02.23.06D(l)(e).

These statutes and regulations all deal with the protection of children from abuse and neglect and the requirement that suspected abuse or neglect be reported to State authorities. Section 5-502(b) provides, in pertinent part, that “[i]t is the policy of this State ... to protect minor children whose care has been ¹³⁶ relinquished to others by the children’s parent.” Section 5-702(1) states that in order “to protect children who have been the subject of abuse or neglect” the purpose of subtitle 7 of the Family Law Article is to “mandat[e] the reporting of any suspected abuse or neglect.” Consistent with this purpose, § 5-704(a) provides: (a) In general. — Notwithstanding any other provision of law, including any law on privileged communications, each health practitioner, police officer, or educator or human service worker, acting in a professional capacity, who has reason to believe that a child has been subjected to: (1) (i) abuse, shall notify the local department or the appropriate law enforcement agency; or (ii) neglect, shall notify the local department; and (2) if acting as a staff member of a hospital, public health agency, child care institution, juvenile detention center, school, or similar institution, immediately notify and give all information required by this section to the head of the institution or the designee of the head. The regulations promulgated pursuant to these statutes provide that “[t]he paramount purpose of these regulations is the protection of children from the special risks arising from the children having to live outside their own homes.” CO-MAR 07.02.23.01.A. The regulations then emphasize that “[w]hen there is a conflict ... the conflict shall be resolved in favor of the child.” Id. Finally, to protect these children further, the regulations provide that “[t]he facility may not prevent the staff member from making [a report of neglect] and shall protect that staff member from any dismissal or other reprisal for making the report.” COMAR 07.02.23.-06D(l)(c).

In her complaint, Ms. Bleich cited, quoted, and heavily relied on the above statutes and regulations. She asserted that her March 13 letter to State licensing authorities and her supervisors at FCS “was required by the Maryland [statutory] law and regulation^], and was in furtherance of this express public policy.” She further asserted that the “actions” of FCS ¹³⁷ and Ms. Davis in terminating her “for reporting her concerns to the [State] Licensing Specialist is an action contrary to the public policy of the State of Maryland” and was “intended to punish [her] for fulfilling her statutorily prescribed duty ... to report suspected incidences of neglect or abuse----” FCS and Ms. Davis do not maintain that “educators” and “human service workers” like Ms. Bleich have no statutory duty to report “suspected abuse or neglect.” What FCS and Ms. Davis claim is that Ms. Bleich, in writing her March 13 letter, “was not invoking or fulfilling the statutory duties and responsibilities of an educator reporting suspected ‘child abuse and neglect.’ ” This is so, they assert, because, first, Ms. Bleich did not make any oral report of child abuse or neglect, as required by § 5-704(b), second, her March 13 letter did not assert that “any child was harmed or was at risk of significant harm by any particular act of abuse or neglect,” and third, that letter did not set forth the information required by § 5-704(c). Section 5-701 (b) defines “abuse” as “physical injury ... under circumstances that indicate that [a] child’s ... welfare is significantly harmed or at risk of being significantly harmed.” “ ‘Neglect’ means the leaving of a child unattended or other failure to give proper care and attention.” § 5-701(n). Section 5-704(b) provides that an educator or human service worker who notifies “appropriate authorities” of child abuse or neglect “shall make an oral report ... as soon as possible,” and shall make a written report “not later than 48 hours” after the incident causing the employee to believe there was abuse or neglect.

Moreover, § 5-704(c) provides that: Insofar as is reasonably possible, an individual who makes a report under this section shall include in the report the following information: (1) the name, age, and home address of the child; (2) the name and home address of the child’s parent or other person who is responsible for the child’s care; (3) the whereabouts of the child; ¹³⁸ (4) the nature and extent of the abuse or neglect of the child, including any evidence or information available to the reporter concerning possible previous instances of abuse or neglect; and (5) any other information that would help to determine: (i) the cause of the suspected abuse or neglect; and (ii)