Gasper v. Ruffin Hotel Corp. of Maryland, Inc.

SHARER, J. In her complaint, filed in the Circuit Court for Montgomery County, Kathleen Gasper, appellant, alleged employment discrimination, sexual harassment, retaliatory discharge, negligent hiring, and other related counts. 1 Appellees, defendants below, are Ruffin Hotel Corporation of Maryland (“Ruffin”) and Imran Ahmed. 2 In her timely appeal, Gasper raises three questions for our review, which, as rephrased, are: 3 ²¹⁵ 1. Whether the circuit court erred by instructing the jury that Gasper was required to prove that her protected activity was a “determining factor” for her retaliatory discharge, rather than a “motivating factor”. 2. Whether the circuit court erred in excluding evidence showing that Ahmed had been previously terminated due to complaints of sexual harassment, assault and battery, and retaliation. 3. Whether the circuit court erred in dismissing Gasper’s claim for negligent hiring and retention on preemption grounds.

BACKGROUND Because the issues raised by appellant are limited to questions of law, we need only recite a summary of those facts necessary to provide a context for our discussion of the legal issues. See Whitney v. State, 158 Md.App. 519, 524 , 857 A.2d 625 (2004). ²¹⁶ Kathleen Gasper is a resident of Montgomery Village, located in Montgomery County, Maryland. Ruffin Hotel Corporation owns and operates the Courtyard by Marriott Gaithersburg-Lakeforest (“Hotel”) in Gaithersburg, Montgomery County. Gasper was employed by Ruffin at the Hotel as the Assistant General Manager from November 17, 2008, to March 15, 2005, when she was terminated.

Imran Ahmed was hired as the General Manager of the Hotel on April 26, 2004, and was Gasper’s immediate superior. In her amended complaint, Gasper claimed (1) employment discrimination and sexual harassment, (2) retaliation, (3) negligent hiring and retention, and (4) intentional infliction of emotional distress. She sought to impose liability on Ruffin for the actions of its employees on respondeat superior theories. Gasper’s complaint is grounded on allegations that she was sexually harassed by other Ruffin employees, and subsequently retaliated against for reporting the sexual harassment. 4 Her amended complaint alleged, in pertinent part: 12.

On January 17, 2005, while at the front desk of the [Hotel], Front Desk Manager James Bridges grabbed Plaintiff, pinned her against the wall and kissed her twice. Plaintiff was terrified and intimidated by Mr. Bridges’ advances and show of force toward her. She was apprehensive about returning to work where she would have to confront him. ²¹⁷ 13. On January 19, 2005, Plaintiff complained to Defendant Ahmed of Mr. Bridges’ actions.

Defendant Ahmed discouraged Plaintiff from making any further complaints. On January 20, 2005 Defendant Ahmed told Plaintiff he planned to do nothing about her complaint of sexual harassment because Mr. Bridges had denied the inappropriate conduct. On January 24, 2005, Plaintiff submitted a written complaint to Defendant Ahmed recounting the events of January 17, 2005. Mr. Ahmed again discouraged her from making further complaints and threatened her with termination.

Mr. Ahmed suggested that the corporate office was not taking Plaintiffs complaint seriously, either. 14. On or about February 3, 2005, Mr. Ahmed offered to hold a meeting between Plaintiff and Mr. Bridges, but refused to facilitate any resolution. Plaintiff did not attend the meeting because shortly before it, Mr. Ahmed told Plaintiff she would have to take the lead in resolving the problem, which she felt would be fruitless. In addition, Plaintiff was frightened by Mr. Bridges. 15.

Later that same day, Mr. Bridges entered Plaintiffs office and tried to intimidate her. Plaintiff asked Mr. Bridges to leave, which resulted in Mr. Bridges shouting obscenities referring to Plaintiff near Mr. Ahmed’s office. 16. On or about February 3, 2005, Mr. Ahmed announced he would be out of town from February 6 to February 11, 2005 and that both Mr. Bridges and Plaintiff would be in charge, as equals, effectively promoting Mr. Bridges. Plaintiff was fearful at the prospect of having to work with Mr. Bridges without a Supervisor to prevent further threats and inappropriate conduct. 17.

Mr. Bridges was newly scheduled to work during Plaintiffs shift while Mr. Ahmed was out of town, which had never before occurred. After telling Mr. Ahmed over the phone that she felt threatened, Mr. Ahmed expressed frustration at Plaintiffs continued complaints and told Plaintiff to leave the hotel. 18. On or around February 10, 2005, Plaintiff lodged a criminal complaint for sexual assault against Mr. Bridges. ²¹⁸ 19. On February 10, 2005, Plaintiff mailed a letter to Phillip Ruffin, Owner and CEO of Defendant Ruffin describing both, the events of January 17, 2005 and Mr. Ahmed’s response. 20.

Upon information and belief, on or about February 14, 2005, Mr. Bridges was terminated. However, after that date, Mr. Bridges continued coming to work at the Courtyard. 21. On February 14, 2005, Mr. Ahmed informed Plaintiff of a new work schedule that he knew would make working at Courtyard difficult for Plaintiff. Mr. Ahmed was continuously hostile toward Plaintiff making communicating with him extremely difficult. 22.

On February 16, 2005 Mr. Ahmed’s superior, Bill Shea, called Plaintiff to discuss her complaints of sexual harassment and retaliation. Mr. Shea asked Plaintiff to recount the events surrounding the incident and told her that Mr. Bridges had been fired and there would be no more problems. 23. After this telephone conference, Defendant Ahmed’s behavior became drastically worse than it had been immediately after the complaint. He would scream at her about failing to accomplish duties he never assigned.

Defendant Ahmed began to curtail communication with Plaintiff and exclude Plaintiff from meetings attended by other department managers, systematically eliminating Plaintiffs both perceived and actual authority in the hotel. 24. On March 11, 2005, Mr. Ahmed told Plaintiff she would need to inform him before leaving the hotel property for lunch during her shift, something never required of her before. 25. On March 14, 2005, Plaintiff sent an e-mail to Mr. Shea (copying defendant Ahmed) that Defendant Ahmed was retaliating against her for her complaints of sexual harassment. 26. On March 15, 2005, Defendant Ahmed terminated Plaintiffs employment effective immediately. ²¹⁹ On September 1, 2006, Ruffin filed a Motion to Dismiss Gasper’s claim for negligent hiring and retention, arguing that the claim was preempted by anti-discrimination and workers’ compensation statutes.

The court, following a hearing, granted the motion on December 7, 2006. Trial, before a jury, commenced on May 14, 2007. On May 22, 2007, the jury returned a verdict in favor of Ruffin on all remaining counts. Additional facts will be set forth as they become necessary to our discussion of the issues. 1.

The court’s instructions. Appellant contends that the court erred in giving the following jury instruction regarding her retaliatory discharge claim: Plaintiff alleges that she has been retaliated against by defendant because of her opposition to alleged harassing conduct. To prevail on her claim of retaliation, the plaintiff must prove by a preponderance of the evidence that (1) the plaintiff opposed practices that she reasonably and in good faith believed constituted unlawful harassment; (2) that she was discharged; and (3) the plaintiffs opposition to harassing conduct was a determining factor in the decision to discharge her. (Emphasis added).

Our review of a trial court’s decision whether to give a requested jury instruction is conducted under an abuse of discretion standard. Thompson v. State, 393 Md. 291, 311 , 901 A.2d 208 (2006) (citations omitted). Gasper argues that the circuit court erroneously elevated her burden of proof by instructing the jury that her burden was to prove that the exercise of her protected activity— reporting sexual harassment-was the “determining factor” in her discharge. She posits that the correct standard of proof was whether her protected behavior was a “motivating factor” in the decision to discharge her.

Discussions of the standard for proving employment discrimination under Title VII of the United States Code are ²²⁰ instructive. In a plurality decision, in Price Waterhouse v. Hopkins, 490 U.S. 228 , 109 S.Ct. 1775 , 104 L.Ed.2d 268 (1989), Justice Brennan, writing for the plurality, stated that when a plaintiff proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiffs gender into account. Id. at 258 , 109 S.Ct. 1775 (emphasis added). The “motivating factor” test was later ratified by a unanimous Supreme Court decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 , 123 S.Ct. 2148 , 156 L.Ed.2d 84 (2003).

In Costa , the Court concluded, “In order to obtain an instruction under [Title VII] § 2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for any employment practice.’ ” Id. at 101, 123 S.Ct. 2148 (emphasis added). Ruffin argues that Price Waterhouse and Costa addressed only “mixed-motive” cases of discrimination, attempting to distinguish retaliation for protected conduct as a “single motive” claim. Ruffin’s assertion that the proper standard is a “but for” test does not comport with Maryland law. Specifically, this Court has previously determined that the correct test for determining retaliatory discharge claims is whether the protected conduct was a “motivating factor” in the discharge.

See Magee v. DanSources Tech. Servs., 137 Md.App. 527, 565-66 , 769 A.2d 231 (2001). Ruffin, however, relies on Molesworth v. Brandon, 341 Md. 621 , 672 A.2d 608 (1996), where the Court of Appeals reviewed the following instruction: To find that the Plaintiff was wrongfully discharged, you must find that her termination was motivated by sex discrimination. In other words, the Plaintiff was fired because she was a female. ...

The Plaintiff must prove the Defendant intentionally discriminated [against] the Plaintiff. That is, but for the ²²¹ Plaintiffs gender, the Defendant would not have made the decision not to continue the Plaintiffs employment. Id. at 645 , 672 A.2d 608 . The Court of Appeals noted that “[t]hese instructions adequately describe the burdens of proof in a sex discrimination case.” Id.

Ruffin cites this language for the proposition that “but for” is the correct standard of proof in a retaliatory discharge case. We rejected this same interpretation in Ma-gee, supra, noting that while the Molesworth Court did approve the instruction recited above, it added a footnote to the phrase “but for”: The plurality decision in Price Waterhouse [v. Hopkins, 490 U.S. 228, 240 , 109 S.Ct. 1775 , 104 L.Ed.2d 268 (1989) ], ruled that “[t]o continue the words ‘because of as a colloquial short hand for ‘but for causation,’ is to misunderstand them.” Title VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations. When, therefore, an employer considers both gender and legitimate factors at the time of making a decision, that decision was “because of’ sex and the other, legitimate considerations — even if we may say later, in the context of litigation, that the decision would have been the same if gender had not been taken into account. Id. at 241 , 109 S.Ct. 1775 .

Magee, supra, 137 Md.App. at 566 , 769 A.2d 231 (quoting Molesworth, supra, 341 Md. at 645 n. 8, 672 A.2d 608 ). As we previously held in Magee , we find the following language from our opinion in Brandon v. Molesworth, 104 Md.App. 167 , 655 A.2d 1292 (1995), aff'd in part, rerid in part, 341 Md. 621 , 672 A.2d 608 (1996), consistent with the plurality opinion in Price Waterhouse, and the Supreme Court’s unanimous opinion in Costa : Although the employee bears the burden of persuasion that discrimination was “a motivating factor,” the employee need ²²² not prove that but for the discrimination she would not have been discharged. Brandon, supra, 104 Md.App. at 191 , 655 A.2d 1292 . Gasper is correct that “determining factor” is not the same as “motivating factor.” Motivate has been defined as to “provide a motive for doing something.” THE NEW OXFORD DICTIONARY 1113 (2001). “Determine” has been defined as “be the decisive factor in” an action.

Id. at 466, 655 A.2d 1292 . Without wading into deeper semantic waters, we agree that the use of “determining” in place of “motivating” is confusing, and does not reflect the correct standard of proof. We believe Maryland law to be settled that a plaintiffs burden is to prove that the exercise of his or her protected activity was a “motivating” factor in the discharge, thereby creating burden-shifting to the defendant. An instruction that imposes upon a plaintiff the burden of proving that the exercise of his or her protected activity was the “determining” factor in the discharge from employment is a misstatement of the law, and erroneous. 2.

Evidence of Ahmed’s previous termination Gasper next argues that the trial court erred in excluding evidence of complaints made against Ahmed in 2002 that led to his termination by Hotel management. 5 Ruffin moved, in limine, to exclude the evidence, and the trial court, following a hearing, determined to delay a ruling until the close of Gas-per’s case. Ruling from the bench, the court stated, inter alia: So that takes us to number one, which was Mr. Ahmed’s 2002 termination from Courtyard. And I’ll just tell you probably where I am on that is that I would reserve on my ruling on that to see how the evidence plays out. Preclude either side from mentioning it.

Of course the defense wouldn’t. The plaintiff in opening statement. And then we’ll see where the evidence goes in this case. ²²³ It’s the only way I think I can adequately weigh the probative value and the prejudice to the defendant. I don’t believe I can do it now because I don’t know specifically what role he played.

There’s a lot of facts that are in dispute. And it certainly has the potential for being relevant for intent or motive as you pointed out in your brief. And I understand that. And in the area of retaliation.

But I don’t want to make a blanket ruling at this point because, as I said, I need to hear it and then make the determination. At the conclusion of Gasper’s case in chief, the court ruled on the motion, stating in pertinent part: The Court has listened intently to all the evidence in this case, and the plaintiff wishes to bring in incidents of sexual harassment or allegations of it in 2002. First of all, I would, I find, as a matter of law in this case, or I find a determination in this case that those incidents in 2002 would be irrelevant. Under 5-401, “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” I find that the entire proffer and all of the incidents, even if true, even if exactly true — and there, again, they haven’t been tried, we’re talking about prior acts — I find, would be irrelevant.

I find it would be irrelevant whether or not Mr. Ahmed was the perpetrator of sexual harassment in the workplace at the very same location in 2002. I also would find that if someone were to disagree with me that it would be relevant under 5-403, I find that the evidence should be excluded because any probative value it would have is substantially outweighed by the danger of unfair prejudice. The conduct that’s being complained of is the identical conduct perpetrated by Mr. Bridges. I find that there would be extreme danger of unfair prejudice.

I think it would also be a confusion of the issues, which is also under 5-403, because the jury would have to tangle and ²²⁴ untangle the incidents that happened in 2002 and somehow try and sort that out and see what relevance they have to this 2005 incident with the plaintiff in this case at bar. I also find the jury would be somewhat misled. I am not ruling that it would be a waste of time because the time is not something the Court concerns itself with; it takes all the time it would need in the case. So, the only way I believe — also, under 5-404(b), it indicates, “Evidence of other,” and this would be, not a “crime” because he hasn’t been found guilty of a crime, it would be “wrongs or acts” — they’re “not admissible to prove character of a person in order to show action in conformity therewith.” And that’s exactly what I find these episodes would be, coming in; that they would be offered to prejudice the home office, the only defendant in this case, through its employee, Mr. Ahmed.

There are exceptions under “motive, opportunity, intent, preparation.” The Defense indicates motive and intent. I don’t believe that they are issues, and I don’t believe that they would properly show motive/intent in this particular case. The fact that he did or did not commit an offense in 2002 has nothing to do with his motive or his intent that I find in this particular case. A trial court’s decision to admit or exclude evidence will not be disturbed in the absence of an abuse of discretion.

Bittinger v. CSX Transp. Inc., 176 Md.App. 262, 273 , 932 A.2d 1243 , cert. denied, 402 Md. 356 , 936 A.2d 852 (2007). Gasper asserts in her brief that the evidence she sought to admit at trial would have shown: (1) motive or intent, and corresponding malice, [ (2) ] knowledge or notice to the employer, especially with regard to an employer’s duty to provide a safe workplace and effective sexual harassment policy, and [ (3) ] to explain Gasper’s emotional distress, why she waited to report the harassment, and for credibility once the Hotel put her credibility and her emotional state at issue. ²²⁵ Gasper argues that because the evidence would have shown motive or intent, a necessary element of her retaliatory discharge claim, it was admissible as prior bad act evidence under Md. Rule 5-404(b). 6 According to Gasper’s theory of the case, Ahmed’s previous sexual harassment violations, and resulting termination, were relevant to show that she was fired for