Leese v. Baltimore County

ADKINS, Judge. This case had its genesis in the circumstances surrounding Baltimore County’s decision to terminate the employment of the appellant, Sterling Leese, Jr., as the director of its senior citizen transportation network. After his dismissal, Leese brought suit against the appellees — the county and several of its supervisory employees — alleging a number of constitutional and common law infractions. To this initial declaration, the court below sustained a demurrer.

Leese filed a thirty-two page amended declaration. That was dismissed for failure to state a claim upon which relief could be granted. Leese appealed. Here, he argues that the lower court erred in granting the motion to dismiss his multi-count amended declaration.

We agree in part and reverse. FACTUAL BACKGROUND According to the well-pleaded facts in his amended declaration, Leese was employed by appellee Baltimore County from August of 1976 until October of 1982. During that period, he planned, implemented and managed the county’s “Senioride” program. At the outset, the Senioride program was administered under the county’s Department of Social Services.

In 1979, however, it was assigned to the newly-created Department of Aging. This brought Leese into contact with appellee Timothy Fagan, the Director of the Department of Aging. ⁴⁵¹ Throughout his tenure as the director of Senioride Leese’s position was classified as “part time.” Under the county’s merit system, part-time employees were expressly denied tenure or any of the other legal protections accorded merit employees. In an effort to obtain the benefits of the merit system, Leese was successful in persuading Fagan to create a new position, designated “Senior Affairs Associate II (Supervisor Senioride Services).” Because this new position conferred full-time merit status, it had to be filled according to the procedures set forth in the county code and regulations. Specifically, the position had to be posted and a test had to be given.

Those who cleared these first two hurdles were interviewed by the hiring authority. In this case the hiring authority was Timothy Fagan. Leese successfully completed the first two steps: he met the criteria in the posting and he achieved the highest score on the exam. At this point, his application, along with others, was forwarded to the hiring authority for an interview.

Rather than conducting the interviews himself, Fagan delegated this chore to a panel of supervisory employees: appellees Ellen Yerman, Majorie Fortner, and Gloria Albinok. Instead of receiving the fair interview that he claims he was due under the Baltimore County Administrative Code and Regulations, Leese asserts that his interview was a sham. In the words of his amended declaration, “the Selection Committee ... and the Director of Aging were predisposed to eliminate [Leese] as a candidate for the merit system position as a result of personal bias and without official and reasonable justification.” He further asserts that the “Committee established a different standard to judge [him] during the oral interview, than was used to judge the other candidates, all to [his] prejudice.” This tainted interviewing procedure, Leese asserts, was incorporated in a report to Fagan that stated that Leese “has not demonstrated ability to assume a professional management role beyond daily operations.” Acting upon ⁴⁵² this report, Fagan and the “ultimate Appointing Officer,” B. Melvin Cole, directed that someone other than Leese be selected to fill the merit position. Nevertheless, Leese was retained in a new non-merit part-time position, at a reduced salary, “in which he [was] responsible for continuing his duties of day to day operation of the Senioride Program as well as additional responsibilities.” The decision not to place Leese in the merit position prompted him to challenge the propriety of the hiring process.

He retained counsel and began the steps necessary to appeal the decision. Shortly after his attorney contacted Fagan and informed him of the basis for this challenge, Leese was summarily fired. The amended declaration averred that this occurred in “retaliation for exercising his legal rights to appeal” the decision to hire someone other than Leese. In spite of his dismissal, Leese pursued his administrative appeal of the hiring decision.

The matter was first brought before Administrative Officer B. Melvin Cole. When he found no impropriety with the hiring process, a further appeal was taken to the Personnel and Salary Advisory Board of Baltimore County. In an evenly-split decision (2-2), the Board upheld the hiring process. Undaunted by his lack of success with his administrative appeals, Leese filed a nine-count declaration in the Circuit Court for Baltimore County.

The first three counts focused on procedural improprieties in the hearing before the personnel board. Counts IV and VII alleged that the tainted review of Leese’s credentials violated the county charter, code, and administrative regulations and thereby denied Leese due process of law under the Fourteenth Amendment to the United States Constitution. Similarly, in counts V and VIII, Leese asserted that he was denied due process when his employment was summarily terminated, and that his dismissal was an unconstitutional retaliation to the exercise of his First Amendment rights. He also averred that these claims amounted to an abusive discharge under ⁴⁵³ Maryland’s common law.

Counts VI and IX alleged that Leese was defamed by critical statements that were placed in his personnel records. 1 When a demurrer to this initial pleading was sustained with leave to amend, the appellant filed an “amended declaration.” 2 This pleading included counts I through IX from the initial declaration and added claims for violations of 42 U.S.C. § 1983 and a claim for intentional infliction of emotional distress. To this amended declaration, the trial court granted a motion to dismiss and entered judgment in favor of the appellees. ISSUES Before addressing the many questions presented by this case, it is important to define precisely what the issues are. In doing this, we are cognizant that this case is before us to review a dismissal for failure to state a claim upon which relief can be granted.

Accordingly, we must assume that the facts alleged in the amended declaration are true. Ungar v. State, 63 Md.App. 472, 479 , 492 A.2d 1336 (1985). Also, in conducting our review of the record, we look only to see if the amended declaration truly represented a “failure to state a claim upon which relief can be granted.” Md.Rule 2-322(b)(2). In other words, we shall look to see if Leese has alleged facts which, if proven, would entitle him ⁴⁵⁴ to relief.

Dick v. Mercantile-Safe Dep. and Trust Co., 68 Md.App. 270 , 273, 492 A.2d 674 (1985). With this in mind, we believe that the following issues have been properly preserved and presented: 3 I. Due Process/ 42 U.S.C. § 1983 Has Leese alleged facts sufficient to show that: A. In light of the Baltimore County Code and its accompanying rules and regulations he had a due process right to a fair appraisal of his qualifications for a merit system position? B. Under the due process clause of the Fourteenth Amendment to the U.S. Constitution, he, as a part-time non-merit status employee, had a proprietary interest in his continued employment? C. By including in his personnel file allegedly false statements about his performance as a manager, the appellees stigmatized the appellant so as to deprive him of liberty without due process of law?

II

First Amendment/ 42 U.S.C. § 1983 Has Leese alleged facts sufficient to show that the county unconstitutionally fired him in retaliation for exercising his First Amendment rights?

III

Abusive Discharge Has the appellant sufficiently alleged all the elements of an abusive discharge?

IV

Emotional Distress A. Do the allegations concerning the appellee’s conduct with regard to the appellant sufficiently charge extreme and outrageous behavior? B. Are the injuries alleged to have been suffered by the appellant sufficiently severe? ⁴⁵⁵ V. Defamation A. Has the appellant adequately alleged that the statements about his work performance were defamatory and published, and that they have caused him actual injury? B. Are the defamatory remarks privileged?

VI

Immunities A. Are the common law tort and contract claims against the county barred by governmental immunity? B. Are the common law tort and contract claims against the county employees barred by Maryland’s common law public official immunity? C. Are the constitutional claims incorporated in the 42 U.S.C. § 1983 claim barred by the official immunities?

VII

Punitive Damages Are punitive damages recoverable if the appellant ultimately prevails on the claims that must be remanded? I. Due Process/£2 U.S.C. § 1983 The bulk of the appellant’s disagreement with the lower court’s decision focuses upon its unwillingness to allow him to challenge the constitutionality of the appellee’s hiring and firing decisions. Pleading his case under both the common law 4 and 42 U.S.C. § 1983 5 Leese asserted that ⁴⁵⁶ each of these employment decisions was made without according him the notice and hearing he believes were guaranteed him under the due process clause of the Fourteenth Amendment. Before the appellant can be allowed to proceed with either his common law or § 1983 action, it must appear that there has been a violation of the Fourteenth Amendment by the appellees.

In other words, the amended declaration must have alleged that the appellees deprived the appellant of “life, liberty or property, without due process of law.” U.S. Const. Amendment XIV. Unless we are able to find that Leese has alleged that he was deprived of one of these predicate interests, his due process claims have no merit. Board of Regents v. Roth, 408 U.S. 564, 569 , 92 S.Ct. 2701, 2705 , 33 L.Ed.2d 548 (1972).

A.l. Property Interest As the United States Supreme Court recently reaffirmed, “[property interests are not created by the Constitution, ‘they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’ ” Cleveland Board of Education v. Loudermill, ___ U.S. ___, ___, 105 S.Ct. 1487, 1491 , 84 L.Ed.2d 494 (1985) (quoting Roth, 408 U.S. at 577 , 92 S.Ct. at 2709 ). But, “[although the underlying substantive interest is created by ‘an independent source such as state law,’ federal constitutional law determines whether the interest rises to the level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause.” Steinberg v. Elkins, 470 F.Supp. 1024, 1030 (D.Md.1979) (quoting Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9 , 98 S.Ct. 1554, 1560 , 56 L.Ed.2d 30 (1978)). In the context of an employment setting, a property interest is defined as “more than [an employee’s] abstract ⁴⁵⁷ need or desire [for the position].

He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. at 577 , 92 S.Ct. at 2709 [emphasis supplied]. To show this is seldom a simple task for the employee because, at common law, “an employment contract of indefinite duration, that is, at will, can be legally terminated at the pleasure of either party.” Adler v. American Standard Corp., 291 Md. 31, 35 , 432 A.2d 464 (1981). See also Cafeterial & Restaurant Workers Union v. McElroy, 367 U.S. 886, 896 , 81 S.Ct. 1743, 1749 , 6 L.Ed.2d 1230 (1961) (“government employment in the absence of legislation can be revoked at the will of the appointing officer”).

Accordingly, a property interest ordinarily can be said to exist only when there is a guarantee of continued employment or promotion. See Andre v. Montgomery County Personnel Board, 37 Md.App. 48, 63-64 , 375 A.2d 1149 (1977). A.2. Property Interest in Merit Position Turning to the appellant’s contention that he had a property interest in being appointed to the merit position, we cannot find any allegation in his amended declaration that he was entitled to the merit position.

Nor do we believe that under the Baltimore County merit system it would have been possible for the county government to guarantee a position to any applicant for employment. Indeed, as the appellant contends in his challenge to the selection process, the code and its accompanying regulations command that the selection process focus upon the merits of each candidate’s qualifications. Leese apparently concedes that he was not guaranteed the merit position. He argues that although he was not entitled to the position itself, he was entitled to have his qualifications reviewed in the impartial manner set forth in the county code and regulations.

In Andre this court was confronted with a nearly identical claim. There, teachers had been denied pro ⁴⁵⁸ motions because the hiring authority had allegedly “ignored, bent or twisted the personnel lists to suit his own whim.” 37 Md.App. at 58 , 375 A.2d 1149 . Rejecting the due process argument, we recognized that “[t]he County Code procedure for promotion is merely procedure and not, as appellants would like, a guarantee of promotion.” Id. at 64 , 375 A.2d 1149 . Leese’s due process challenge to the hiring process must fail for the same reason.

The ultimate decision to fill the merit position was discretionary, and he has not alleged any facts that would show that the hiring procedures required the discretion be exercised in his favor. See McFarlane v. Grosso, 696 F.2d 217, 222 (2d Cir.1982). And see Bigby v. Chicago, 766 F.2d 1053 (7th Cir.1985) (police sergeant has no property interest in promotion to lieutenant). Thus, the county’s personnel rules and regulations do not confer the property interest needed to trigger the protections of due process.

B. Property Interest in Part-Time Position Leese also asserts that he had a property interest in continued employment as a part-time employee. To prove this claim, Leese would have had to show that “there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit.” Perry v. Sindermann, 408 U.S. 593, 601 , 92 S.Ct. 2694, 2699 , 33 L.Ed.2d 570 (1972). These rules and understandings need not be set forth in written policies or regulations. Rather, as the court recognized in Perry , “the law of contracts in most, if not all, jurisdictions long has employed a process by which agreements, though not formalized in writing, may be ‘implied.’ ” Id. at 601-02 , 92 S.Ct. at 2700 (quoting 3 A. Corbin, Corbin on Contracts §§ 561-72A (1960)).

See also Staggs v. Blue Cross of Maryland, Inc., 61 Md.App. 381, 388-92 , 486 A.2d 798 , cert. denied, 303 Md. 295 , 493 A.2d 349 (1985) (employer’s written policy statements can become basis for breach of contract action). Seizing upon this language, Leese attempts to generate. an issue of fact over whether the county’s dealings with ⁴⁵⁹ him amounted to a contract that “he would not be dismissed unless he failed to perform his job duties as required and that he had protection and security.” The appellant’s contentions overlook the combined operation of the Baltimore County Charter, Code and Rules and Regulations. Under the charter, a classified and an exempted service are created. Baltimore County Charter § 801 (1978).

The code provides that only members of the classified service are accorded full merit status, including protection against dismissal without cause. Baltimore County Code 21-14. See also § 21-21, Rule 15 (creating protections against dismissal for “[a]ny member of the classified service”). In sharp contrast to the ample job security granted merit employees, part-time employees are expressly excluded from “merit system status.” Rule 8.01.

See also Rule 8.04 (stating that “[ejmployees serving in emergency, temporary or provisional appointments ... may be dismissed from their jobs at any time”). 6 Accordingly, any argument that Leese was given job security under the charter, code or regulations is frivolous. Perhaps on rare occasions an employee may be able to show that, in spite of non-merit status, the realities of the workplace are such that an informal tenure system exists. Steinberg v. Elkins, 470 F.Supp. 1024, 1029 (D.Md.1979). In Perry , for instance, the court held that a faculty guide which contained the following paragraph conferred de facto tenure: Teacher Tenure: Odessa College has no tenure system.

The Administration of the College wishes the faculty member to feel that he has permanent tenure as long as his teaching services are satisfactory and as long as he ⁴⁶⁰ displays a cooperative attitude toward his co-workers and his superiors, and as long as he is happy in his work. 408 U.S. at 600, 92 S.Ct. at 2699. See also Steinberg, 470 F.Supp. at 1027-28 (faculty committee voted to grant professor tenure without taking the necessary step of obtaining administration approval). Unlike the faculty member in Perry , the appellant can point to no specific employer-authored policy statement that conferred any job security. Nor has he alleged that any actions were taken by the appellees to confer such status.

Thus, much like the untenured faculty member in Roth , the appellant had only “an abstract concern” in retaining his position with Baltimore County. 408 U.S. at 578, 92 S.Ct. at 2710. Hence, his property interest claims must fail. C. Liberty Interest “Liberty,” as incorporated in the Fourteenth Amendment of the U.S. Constitution, is a concept that defies efforts to contain it within a precise definition. In an employment setting, a liberty interest has been recognized when the dismissal “imposed upon [the employee] some stigma or disability that forecloses other employment opportunities.” Elliott v. Kupferman, 58 Md.App. 510, 519 , 473 A.2d 960 (1984).

See also Roth, 408 U.S. at 573 , 92 S.Ct. at 2707 . The reason for recognizing a liberty interest in this instance was explained by the Supreme Court long ago: “[i]t requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that was the purpose of the [Fourteenth] Amendment to secure.” Truax v. Raich, 239 U.S. 33, 41 , 36 S.Ct. 7, 10 , 60 L.Ed. 131 (1915), quoted in In Re Griffiths, 413 U.S. 717, 720 , 93 S.Ct. 2851, 2854 , 37 L.Ed.2d 910 (1973). To invoke this liberty interest, the terminated employee must show that his former employer has published false statements about him. Cleveland Board of Edu ⁴⁶¹ cation v. Loudermill, ___ U.S. ___, ___ n. 13, 105 S.Ct. 1487 , 1496 n. 13, 84 L.Ed.2d 494 (1985) (“the failure to allege that the reasons for the dismissal were published dooms [the] claim”); Codd v. Velger, 429 U.S. 624, 627-28 , 97 S.Ct. 882, 883-84 , 51 L.Ed.2d 92 (1977) (per curiam) (must allege that stigmatizing information was false).

He must also show that these untruths are preventing him from securing similar employment. Roth, 408 U.S. at 574 n. 13, 92 S.Ct. at 2707 n. 13. Lastly, it must appear that the false information was of such a stigmatizing nature that it virtually “foreclosed his freedom to take advantage of other employment opportunities.” Roth, 408 U.S. at 573 , 92 S.Ct. at 2707 . Examining these elements in reverse order, we note that Leese asserts that he has been “stigmatized” because the appellees branded him as “not having demonstrated ability to assume a professional management role beyond daily operations.” He also claims to have been stigmatized by the inclusion of a “termination ticket” which states that “due to the employee’s work history, the level and scope of positions for which he is eligible are restricted.” We believe that he misreads the proper definition of the term “stigmatize.” In recognizing that an employee has a liberty interest in being able to find future employment, the Supreme Court did not create a constitutional cause of action against every employer or supervisor who gives an employee an unfavorable review.

The Roth court speaks in terms of a stigma that is so disabling that it virtually forecloses other employment opportunities. 408 U.S. at 573-74, 92 S.Ct. at 2707-08. See also Bigby v. Chicago, supra, and Russell v. Hodges, 470 F.2d 212, 217 (2d Cir.1972); Smith v. Bd. of Education, 708 F.2d 258, 265-66 (7th Cir.1983). In determining a stigmatizing dismissal from its nonstigmatizing counterpart, the focus is “upon the charge used as grounds for termination and not the actual consequence of the charge.” Stretten v. Wadsworth Veterans ⁴⁶² Hosp., 537 F.2d 361, 365 (9th Cir.1976). Thus, mere non-retention, without a statement of the reason behind it, is not sufficiently stigmatizing.

Roth, 408 U.S. at 574 n. 13, 92 S.Ct. at 2707 n. 13. Also, when given, the reasons for the dismissal must contain “something considerably graver than a charge of failure to perform a particular job.” Russell, 470 F.2d at 217 . Indeed, they must impute some sort of “dishonesty, immorality, pressure to drop criminal charges, intoxication and the like.” Smith, 708 F.2d at 266 n. 6. See also Roth, 408 U.S. at 573 , 92 S.Ct. at 2707 (dismissal based on charges that an employee “had been guilty of dishonesty, or immorality” would be be sufficiently stigmatizing).

Thus, false statements that merely offer evaluation of an employee’s work performance do not violate a liberty interest. See Munson v. Friske, 754 F.2d 683, 693 (7th Cir.1985) (employee disobeyed orders); Hadley v. County of DuPage, 715 F.2d 1238 (7th Cir.1983) (mismanagement), cer t. denied, ___ U.S. ___, 104 S.Ct. 1000 , 79 L.Ed.2d 232 (1984); Gray v. Union Intermediate County Education District, 520 F.2d 803, 806 (9th Cir.1975) (insubordination, incompetence hostility toward others); Blair v. Board of Regents, 496 F.2d 322, 324 (6th Cir.1974) (failure to meet minimum professional standards). Explaining this often difficult distinction, the Stretten court offered the following guidance: The ‘liberty interest’ is the interest an individual has in being free to move about, live, and practice his profession without the burden of an unjustified label of infamy. Board of Regents v. Roth, 408 U.S. at 572, 92 S.Ct. at 2706 , 33 L.Ed.2d at 557 .

In the context of Roth -type cases, a charge which infringes one’s liberty can be characterized as an accusation or label given the individual by his employer which belittles his worth and dignity as an individual and, as a consequence is likely to have severe repercussions outside of professional life. Liberty is not infringed by a label of incompetence, the repercussions of which primarily affect professional life, and which may well force the individual down one or more ⁴⁶³ notches in the professional hierarchy. The distinction is not perfect; our utility affects our dignity and worth whether viewed from within or without. However, implicit in such a distinction is the notion that the constitutional need for procedural protection is not strong when the charge (e.g. incompetence) involves a matter which is peculiarly within the scope of employer-employee relations and when the likely results of even a false charge are reduced economic returns and diminished prestige, but not permanent exclusion from, or protracted interruption of, gainful employment within the trade or profession. 7 537 F.2d at 366 .

Nowhere in his amended declaration does Leese assert that he has been labeled dishonest or immoral. Rather, the questioned personnel records merely comment on his lack of ability to perform a particular job. This is, as a matter of law, insufficient, under the authorities cited above, to trigger a liberty interest. Since we find that the appellant has not alleged facts that show he has been sufficiently stigmatized, we need not review the other elements.

He has not shown that his liberty interest in future employment has been abridged.

II

First Amendment/ 42 U.S.C. § 1983 Although the previous discussion shows that the employment at will doctrine is alive and well in Maryland, there are certain constitutional limitations on the government’s authority to fire its employees. As the Supreme Court has recognized, “the theory that public employment ⁴⁶⁴ which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.” Keyishian v. Board of Regents, 385 U.S. 589, 605-06 , 87 S.Ct. 675, 685 , 17 L.Ed.2d 629 (1967). Specifically, when an employee exercises his First Amendment rights to speak on matters of public concern, he cannot be dismissed in retaliation for having exercised his rights. Connick v. Myers, 461 U.S. 138, 147 , 103 S.Ct. 1684, 1690 , 75 L.Ed.2d 708 (1983); DeBleecker v. Montgomery County, 292 Md. 498, 506-07 , 438 A.2d 1348 (1982). 8 To rule otherwise would allow the government to accomplish indirectly what it cannot do directly: silence protected speech.

Perry, 408 U.S. at 597 , 92 S.Ct. at 2697 . To establish a claim based on the First Amendment, the discharged employee must prove two elements. First, he must show that he was engaging in constitutionally-protected speech at the time of his discharge. DiGrazia v. County Executive for Montgomery County, 288 Md. 437, 447-52 , 418 A.2d 1191 (1980).

Second, he must show that “his conduct was a ... ‘motivating factor’ in the [employer’s] decision to [fire].” Mt. Healthy City School District Bd. of Educ. v. Doyle, 429 U.S. 274, 287 , 97 S.Ct. 568, 576 , 50 L.Ed.2d 471 (1977). We believe that Leese has alleged sufficient facts to meet both of these prerequisites. The protected First Amendment freedom that is alleged to have prompted his dismissal was his decision to contest what he believed was an unfair hiring process.

This was an exercise of his First Amendment right to petition ⁴⁶⁵ government for redress of grievances. 9 See McDonald v. Smith, ___ U.S. ___, 105 S.Ct. 2787 , 86 L.Ed.2d 384 (1985); Miner v. Novotny, 60 Md.App. 124 , 481 A.2d 508 (1984), cert. granted, 302 Md. 239 , 486 A.2d 1196 (1985). 10 As we noted in Miner , “[t]he petition privilege is among our most precious liberties.” Id. at 129 , 481 A.2d 508 . We recognize, though, that occasionally the demands of the employer/ employee relationship will allow the government employer to exert more control over an employee’s exercise of his constitutional rights than it could over an ordinary citizen. See Pickering v. Board of Education, 391 U.S. 563, 568 , 88 S.Ct. 1731, 1734 , 20 L.Ed.2d 811 (1968); DiGrazia, 288 Md. at 449 , 418 A.2d 1191 . But, if the employee’s First Amendment rights are to have any value, the employer cannot rely upon the need of the work place to justify a dismissal engineered to suppress criticism on matters of public concern.

Tortman v. Board of Trustees, 635 F.2d 216 , 229 (3d Cir.1980), cert. denied sub nom., Lincoln University v. Trotman, 451 U.S. 986 , 101 S.Ct. 2320 , 68 L.Ed.2d 844 (1981). See also Perry, 408 U.S. at 597-98 , 92 S.Ct. at 2697-98 (faculty member unlawfully fired for testifying before a committee of the Texas state legislature). 11 ⁴⁶⁶ In what is perhaps inartful pleading, Leese asserted that his discharge “was not prompted by a genuine dissatisfaction as to his performance as an employee, but was motivated by retaliation for exercising his legal right to appeal.” In making this allegation, the appellant has sufficiently alleged “statements of fact as may be necessary to show the pleader’s entitlement to relief.” Md.Rule 2-303(b). The amended declaration in substance charges that Leese was dismissed because he exercised his right to petition the government for redress of a grievance. Although the appellant’s exercise of the petition right was a valid exercise of a constitutional right, it cannot serve as a basis for overturning his dismissal unless it touched upon a matter of “public concern.” Connick v. Myers, 461 U.S. at 147-48 , 103 S.Ct. at 1690-91 .

In other words it must relate “to any matter of political, social, or other concern of the community ... [such as] to bring to light actual or potential wrongdoings or breach of public trust on the part of [government officials].” Id. at 146-48 , 103 S.Ct. at 1689-91 . When it relates to “speech solely in the individual interest of the speaker and [his] specific business audience,” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., ___ U.S. ___, ___, 105 S.Ct. 2939, 2947 , 86 L.Ed.2d 593 (1985), the Supreme Court has determined that “government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” Connick, 461 U.S. at 146 , 103 S.Ct. at 1689 . To determine whether the exercise of the petition right addressed a matter of public concern we must look to its “content, form, and context ... as revealed by the record as a whole.” Dun & Bradstreet, Inc., ___ U.S. at ___, 105 S.Ct. at 2947 (quoting Connick, 461 U.S. at 147-48 , 103 S.Ct. at 1690-91 ). ⁴⁶⁷ Looking first to the content of Leese’s petition, it is clear that he has alleged serious violations of the county’s merit system. It is indisputably in the public’s interest to be kept abreast of such serious improprieties in the methods used to select its civil servants.

At the very least, the misuse of the hiring power by public officials represents a “breach of public trust.” Connick, 461 U.S. at 148 , 103 S.Ct. at 1690 . The form and context chosen by the appellant to exercise the petition privilege strengthen our conclusion that he was addressing a matter of public concern. Rather than airing his view privately, he challenged the hiring process by appealing administratively twice and by litigating this case in court. In short, he was engaging in a protected exercise of his First Amendment rights when he was dismissed.

Lastly, by alleging that the termination was motivated by the exercise of the petition privilege, Leese has adequately alleged that his challenge to the hiring process was a motivating factor in the appellees’ decision to dismiss him. Thus, he has set forth facts to state a cause of action for violations of the First and Fourteenth Amendments. And by charging that his retaliatory discharge was effected by application of county laws and regulations, he has charged a violation of § 1983. See footnote 8.

If Leese can prove these facts at trial, the burden will shift to the appellees to show that the appellant would have been dismissed, regardless of his exercise of the petition privilege, DiGrazia, 288 Md. at 448 , 418 A.2d 1191 , as well as to show any justifying work-place factor.

III

Abusive Discharge In addition to his constitutional challenges, Leese also asserts that his firing amounted to an abusive discharge under Maryland’s common law. Specifically, his cause of action for abusive discharge “is grounded and based upon a breach of contractual rights and duties owed to him by the [appellees].” Recent decisions indicate that a claim for abusive discharge must allege that ⁴⁶⁸ 1. the employee was discharged; 2. the dismissal violated some clear mandate of public policy; and 3. there is a nexus between the defendants and the decision to fire the employee. Moniodis v. Cook, 64 Md.App. 1, 13-14 , 494 A.2d 212 (1985). See also Staggs v. Blue Cross of Maryland, Inc., 61 Md. App. 381 , 486 A.2d 798 (discussing the element of discharge), cer t. denied, 303 Md. 295 , 493 A.2d 349 (1985).

Absent any one of these elements, “an employment contract of indefinite duration, that is, at will, can be legally terminated at the pleasure of either party at any time.” Adler, 291 Md. at 35 , 432 A.2d 464 . It is clear to us that the appellant has properly pleaded the first two elements. There is no doubt that he was in fact discharged. Moreover, to the extent that this discharge violated Leese’s constitutional rights, it was abusive.

We can conceive of no clearer “mandate of public policy” than the rights spelled out in the United States Constitution. See Moniodis, 64 Md.App. at 10 , 494 A.2d 212 . It is considerably less apparent that all the appellees were somehow involved in the decision to fire Leese. Indeed, it is only alleged that Fagan made the decision to terminate him, and it was Fagan who signed the termination letter.

Nevertheless, the amended declaration alleged that all the individual appellees, as well as the county, participated in the discharge. Whether this can be proved, particularly as to Yerman, Fortner, and Albinok, may be questioned. See Moniodis, 64 Md.App. at 14 , 494 A.2d 212 . But we are dealing here with pleading, not proof.

The amended declaration was sufficient to charge abusive discharge against all the appellees.

IV

Intentional Infliction of Emotional Distress In the last count of his amended declaration, the appellant asserted that the appellees “intentionally conspired together” to deny him the merit position and to ⁴⁶⁹ terminate his employment. 12 This, he asserts, was without just cause and “for the express purpose of humiliating, embarrassing and causing [the appellant] to endure and experience severe emotional distress and emotional suffering.” To state a cause of action for intentional infliction of emotional distress, the appellant’s amended declaration must have alleged the following four elements: (1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; (4) The emotional distress must be severe. Moniodis, 64 Md.App. at 15 , 494 A.2d 212 . We believe that the appellant has failed to allege facts which, if proven, would establish the second and fourth elements. A. Extreme and Outrageous Behavior “In determining whether conduct is extreme and outrageous, it should not be considered in a sterile setting, detached from the surroundings in which it occurred.” Harris v. Jones, 281 Md. 560, 568 , 380 A.2d 611 (1977).

In Dick v. Mercantile-Safe Deposit & Trust, 63 Md.App. 270 , 492 A.2d 674 (1985), we recently reviewed what is meant by “extreme and outrageous conduct.” There, we determined that it exists “only if ‘the average member of the communi ⁴⁷⁰ ty must regard the defendant’s conduct ... as being a complete denial of the plaintiff’s dignity as a person.’ ” Id. at 276, 492 A.2d 674 (quoting Alsteen v. Gehl, 21 Wis.2d 349 , 124 N.W.2d 312, 318 (1963)). In Moniodis , we had occasion to apply these principles to an alleged abusive discharge. Writing for the court, Judge Weant began his discussion of the issue by noting that “[t]he actors in this case were an employer and a supervisor, and as such their conduct must be ‘carefully scrutinized.' ” 64 Md.App. at 17 , 494 A.2d 212 (quoting Harris, 281 Md. at 569 , 380 A.2d 611 ). The other factors that were deemed important in generating a prima facie case on the extreme and outrageous issue were that the employers were aware of the employee’s sensitive nature, that the charges against her suggested that she was dishonest and that forcing the employee to undergo a lie detector test was in direct violation of her statutory right to refuse to take such a test.

Id. at 13, 494 A.2d 212 . In Beye v. Bureau of National Affairs, 59 Md.App. 642 , 477 A.2d 1197 , cert. denied, 301 Md. 639 , 484 A.2d 274 (1984), we held that the following employer excesses did not amount to extreme and outrageous conduct: (1) for six years, from 1976-1982, Thomas and Shaw gave him poor performance ratings, ‘threatened to fire him, harassed him and physically assaulted him’; (2) BNA passed him over for promotion in favor of employees with less seniority and appointed Thomas as his supervisor with knowledge of Thomas’s ‘prior illegal activity and the efforts of ... Beye to ferret it out and to have it prosecuted’; and (3) Moore deceived him into resigning. 59 Md.App. at 656 , 477 A.2d 1197 . See also Continental Casualty v. Mirabile, 52 Md.App. 387 , 449 A.2d 1176 , cert. denied, 294 Md. 652 (1982) (employer who screamed at employee and moved him from desk to desk held not to have acted in an extreme and outrageous manner).

Here, it is alleged that the appellees were employers and that they acted intentionally. This resembles the sitúa ⁴⁷¹ tions in Moniodis and Beye . What is missing, however, is an allegation that the appellant was overly sensitive to the treatment he received. Nor is it suggested that he was labeled as dishonest or immoral.

By denying him a promotion and firing him, the appellees may have acted with a disregard for Leese’s emotional well being, but we cannot say that these actions standing alone amount to the