Kessler v. Equity Management, Inc.

⁵⁸⁰ BLOOM, Judge. A jury in the Circuit Court for Montgomery County returned a verdict for the defendant in an action for wrongful discharge brought by Bernice T. Kessler against Equity Management, Inc. 1 In this appeal from the judgment entered on that verdict, Ms. Kessler presents a heptad of issues, phrased as follows: 1. Did the trial judge err in refusing to instruct the jury that for an employer to fire an at-will employee for refusing to invade -the privacy of tenants by snooping in their apartments would be against the public policy of Maryland and would constitute a wrongful discharge? 2. Did the trial judge err in refusing to instruct the jury that a request for resignation of an employee by an employer who indicates at the same time its intention to discharge the employee if he or she does not resign is a constructive discharge or termination? 3.

Did the trial judge prejudicially err in: (A) Refusing to allow plaintiff to testify as to a statement by defendant’s property manager to plaintiff shortly before she fired plaintiff, praising another employee for entering an apartment and finding and copying a tenant’s private paper, namely, a last will and testament; and (B) Refusing to allow plaintiff’s attorney to cross-examine defendant’s property manager regarding this incident? 4. Did the trial judge err in refusing to allow plaintiff to testify in rebuttal regarding apartments she was asked to enter by defendant’s property manager which did not ⁵⁸¹ involve tenants that management believed to have “skipped” in order to rebut the testimony of the property manager during defendant’s case that the only apartments plaintiff was asked to enter were those to determine whether a tenant had “skipped”? 5. Did the trial judge make prejudicial comments during the course of the trial by way of erroneous instructions to the jury that plaintiff had the burden of showing that statements to plaintiff by defendant’s property manager were done within the scope of employment and that defendant knew the statements were made and ratified them where defendant’s property manager was a managing agent and the one who fired plaintiff? 6. Did the trial judge err in granting defendant’s directed verdict on the issue of punitive damages?

We agree with appellant’s contention that the trial judge erred in refusing to instruct the jury that firing an at-will employee for refusing to commit a trespass and invade the privacy of tenants would constitute an actionable wrongful or abusive discharge. For that error, we shall reverse the judgment and remand for a new trial. We shall also address some of the other issues raised by appellant, since they may arise again. Facts In view of the nature of the principal issue presented on this appeal, we shall set forth in some detail appellant’s version of the facts relating to her employment and its termination.

In 1985 appellant was hired as a part-time rental agent at White Oak Park Apartments (White Oak), an apartment complex in Montgomery County consisting of about 110 garden type apartments. Appellant and her husband had been living in one of those apartments for about 14 years. In October 1986 the White Oak complex was sold to a new owner, and appellee was engaged to manage it. Appellee also managed some nine or ten other apartment complexes in Montgomery and Prince George’s counties. ⁵⁸² Appellant was then hired by appellee as a part-time rental agent.

In January 1987 appellee hired appellant on a full-time basis with the duties and title of resident manager. She was paid $100 per week and given free occupancy of her apartment, which had a rental value of $599 per month. Appellant’s duties as resident manager included showing and renting apartments; receiving rent money; preparing daily journals of receipts, including a current tabulation of rentals received, rentals due and payments of late rentals; collecting overdue rentals; sending out late notices; making bank deposits; keeping status reports of vacancies; notifying maintenance personnel of maintenance problems, including repairs, remodeling, repainting, and the like; handling tenants’ complaints; receiving deliveries of supplies; handling outside contractors and repairmen; and related activities. Katherine Chase, the property manager of White Oak, was appellant’s supervisor.

Mrs. Chase was also property manager at another apartment complex managed by appellee. She did not reside at White Oak but visited White Oak several times a week. Mr. Doug Margerum, appellee’s president, did not maintain an office at White Oak. Appellant’s work was apparently satisfactory; she was given a cash bonus in May of 1987.

In early June of that year, Mrs. Chase instructed her to enter apartments of tenants whose rent was overdue, while the tenants were not present, and to “snoop” around the apartments, looking through private papers in order to obtain information regarding tenants’ places of employment, their work telephone numbers, their home telephone numbers if unlisted, wage or salary information, and other information that might be helpful in collecting the overdue rent. Appellee testified that on the first two occasions Mrs. Chase told her to snoop, she did so, but reluctantly. She entered apartments while the tenants were absent and rummaged through their papers. Afterward, she felt bad about having done so and told Mrs. Chase she would not ⁵⁸³ snoop anymore.

Mrs. Chase told her it was part of her duties. Appellant then sought and obtained a meeting with Mr. Margerum. He told her that the snooping policy was his. He said, “These people owe me money and I can do whatever I want.” Mrs. Chase gave appellant further instructions regarding entering apartments.

In July 1987, appellant sustained a smoke inhalation injury while investigating a fire in the basement of one of the apartments. When she indicated she wanted to file a Worker’s Compensation claim, Mrs. Chase showed great animosity and was most uncooperative in processing the claim. On August 5, 1987, Mrs. Chase told appellant she could either resign or be fired. Appellant refused to resign, whereupon she was fired.

I Appellant’s case was based upon a contention that she was fired by appellee for either or both of two reasons: (1) because she had filed a worker’s compensation claim, or (2) because she refused to carry out instructions to make surreptitious entries into tenants’ apartments and snoop into their private papers. Appellee, on the other hand, contended that appellant was fired for a variety of deficiencies as an employee. Appellant concedes that as an at-will employee she could be terminated without cause by her employer. But, she posits, her discharge for not performing illegal or tortious acts contravenes public policy, thus constituting a wrongful discharge by her employer.

Since Adler v. American Standard Corp., 291 Md. 31 , 432 A.2d 464 (1981), Maryland has recognized the tort of wrongful discharge. “It is defined as the willful termination of employment by the employer because of the employee’s alleged failure to perform in accordance with the employer’s expectations and the termination is contrary to a clear mandate of public policy.” ⁵⁸⁴ Allen v. Bethlehem Steel Corp., 76 Md.App. 642, 652 , 547 A.2d 1105 (1988). Appellant requested a jury instruction to the effect that under the law of Maryland an employer may not fire an employee because the employee filed a worker’s compensation claim for some job-related injury or for refusing to commit the tort of invasion of privacy of a third person, such as a tenant of White Oak Park Apartments, either of those reasons for discharging an employee being against public policy. The court did properly instruct the jury that discharging an employee solely because she filed a worker’s compensation claim would be a wrongful discharge. Firing an employee for that reason, the court ruled, would be contrary to a clear mandate of public policy, the Legislature having expressly forbidden employers to discharge employees solely for that reason.

Md.Code Ann., art. 101, § 39A(a). See Kern v. South Baltimore General Hospital, 66 Md.App. 441 , 504 A.2d 1154 (1986). In refusing to give the second part of the requested instruction, the court noted that appellant could point to no legislatively declared public policy. The court instructed the jury, instead, that an employer has a legal right to discharge an employee at will with or without cause.

However, the employer may not discharge an employee when the motivation for the discharge contravenes some clear mandate of public policy if in fact the employee has identified a specific expression of public policy. We believe that it was incumbent upon the- court to determine, as a matter of law, whether the firing of an employee for refusing to commit the tort of invasion of privacy, as contended by appellant, would contravene a clear mandate of public policy. And we conclude that appellant was entitled to an instruction to the effect that firing her for refusing to carry out her employer’s instructions to enter tenants’ apartments and snoop through their private papers, should the jury so find, would have contra ⁵⁸⁵ vened a clear mandate of public policy and thus would have constituted a wrongful discharge. In recognizing the tort of wrongful discharge for the termination of employment contrary to a clear mandate of public policy, the Court of Appeals in Adler v. American Standard Corp., supra, referred to the following concept of public policy described in Md.-Nat’l Cap.

P. & P. v. Wash. Nat’l Arena, 282 Md. 588 , 386 A.2d 1216 (1978): Nearly 150 years ago Lord Truro set forth what has become the classical formulation of the public policy doctrine — that to which we adhere in Maryland: 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. Egerton v. Earl Brownlow, 4 H.L.Cas. 1, 196 (1853). ... But beyond this relatively indeterminate description of the doctrine, jurists to this day have been unable to fashion a truly workable definition of public policy.

Not being restricted to the conventional sources of positive law (constitutions, statutes and judicial decisions), judges are frequently called upon to discern the dictates of sound social policy and human welfare based on nothing more than their own personal experience and intellectual capacity---- Inevitably, conceptions of public policy tend to ebb and flow with the tides of public opinion, making it difficult for courts to apply the principle with any degree of certainty. Id. at 605-606 , 386 A.2d at 1228 (citations omitted). 291 Md. at 44-45 , 432 A.2d 464 . The Court then noted that it had not confined itself to legislative enactments, prior judicial decisions, or administrative regulations when determining the public policy of this state. Nevertheless, it has always been aware “that recognition of an otherwise undeclared public policy as a basis for a judicial decision involves the application of a ⁵⁸⁶ very nebulous concept to the facts of a given case, and that declaration of public policy is normally the function of the legislative branch.” Id. at 45 , 432 A.2d 464 .

The Court then quoted from the opinion written by Mr. Justice Sutherland in Patton v. United States, 281 U.S. 276, 306 , 50 S.Ct. 253, 261 , 74 L.Ed. 854 (1930): The truth is that the theory of public policy embodies a doctrine of vague and variable quality, and unless deducible in the given circumstances from constitutional or statutory provisions, should be accepted as the basis of a judicial determination, if at all, only with the utmost circumspection. The public policy of one generation may not, under changed conditions, be the public policy of another. (Emphasis added [by the Adler Court].) Unlike the situation where an employee is fired, contrary to statutory prohibition, for filing a worker's compensation claim (Md.Code Ann., art. 101, § 39A.(a)), or for refusing to take a polygraph test (Md.Code Ann., art. 100, § 95; see Moniodis v. Cook, 64 Md.App. 1 , 494 A.2d 212 (1985)), there is no statutory expression of public policy pertaining to discharge of employees for refusing to invade the privacy of others. There are, however, both statutory and constitutional protections against such invasions of privacy as appellant claims she was ordered to commit.

It is an elementary principle of real property law that a tenant has a right of possession of demised premises to the exclusion of the landlord. “During the term of the tenancy, unless permitted by the terms of the lease, 2 a landlord has no more right to enter premises possessed by the tenant than a stranger would have”; and “[i]t is axiomatic that one not antecedently authorized may not himself ⁵⁸⁷ enter the property of a stranger, nor authorize another to do so.” Miller v. State, 174 Md. 362, 368 , 198 A. 710 (1938). Had appellant done what she was instructed to do, entering leased apartments when the tenants were absent and without notice to or permission from the tenants, she would have committed a trespass, subjecting her to civil liability for damages. The fact that the tenants whose premises appellant was told to invade were in arrears in their rent is of no significance. If rent is past due, there are statutory remedies available to the landlord: distress (distraint), Md.Real Prop.

Code Ann., §§ 8-301 through 8-332, or repossession by summary proceeding, § 8-401. Both of those remedies require judicial action in which the tenant is given due notice and an opportunity to be heard; in either of those judicial proceedings, the entry to levy on property in the demised premises or the entry to put the landlord back in possession is by a judicial