Miller-Phoenix v. Bd. of School Comm'rs

Scott Miller-Phoenix v. Baltimore City Board of School Commissioners, No. 209, September Term, 2019. Opinion by Fader, C.J. LABOR & EMPLOYMENT — WRONGFUL TERMINATION — NON- RENEWAL OF EMPLOYMENT CONTRACT The tort of wrongful termination may lie when an employer terminates an employee for reasons that contravene a clear mandate of public policy, by declining to renew an employment contract for which the parties anticipated a reasonable possibility of renewal. PRESERVATION FOR APPELLATE REVIEW — MEMORANDA & PLEADINGS — MARYLAND RULE 8-131 Ordinarily, an appellate court will not consider arguments that were not raised before or passed upon by the trial court. Circuit Court for Baltimore City Case No. 24-C-17-006460 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 209 September Term, 2019 ______________________________________ SCOTT MILLER-PHOENIX v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS ______________________________________ Fader, C.J., Leahy, Eyler, Deborah S.

(Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Fader, C.J. ______________________________________ Filed: May 29, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-05-29 14:04-04:00 Suzanne C. Johnson, Clerk Scott Miller-Phoenix, the appellant, sued the Baltimore City Board of School Commissioners (the “Board”), the appellee, after the Board decided not to renew his one- year provisional contract of employment as a schoolteacher. Among other claims, Mr. Miller-Phoenix argued that the Board wrongfully terminated his employment in retaliation for filing a workers’ compensation claim.1 The Circuit Court for Baltimore City concluded that a claim for wrongful termination cannot be premised on the non-renewal of a contract and, therefore, granted summary judgment in favor of the Board. We hold that a claim for wrongful termination may lie when an employer’s motivation for deciding not to renew a renewable employment agreement contravenes a clear mandate of public policy.

We will, therefore, vacate the judgment with respect to the wrongful termination claim and remand for further proceedings. Mr. Miller-Phoenix also brought claims against the Board for: (1) firing him in retaliation for reporting illegal conduct in violation of whistleblower protection laws; and (2) breaching the parties’ employment contract. We will affirm the circuit court’s grant of summary judgment in favor of the Board on those claims. 1 Throughout this opinion, we refer to the tort at issue as “wrongful termination,” which is the term used predominantly by the Court of Appeals in its most recent opinion exploring the subject. See Yuan v. Johns Hopkins Univ., 452 Md. 436, 446 (2017).

The Court also has referred to the tort as “wrongful discharge,” see, e.g., id.; Gazunis v. Foster, 400 Md. 541, 563 (2007), and “abusive discharge,” see, e.g., Makovi v. Sherwin-Williams Co., 316 Md. 603, 605 (1989). Which term is used has no effect on our analysis. BACKGROUND Statutory and Regulatory Background Public schoolteachers in Maryland are contractual employees, and the standard terms of their contracts are established by State regulations. See COMAR 13A.07.02.01(A) (2019).

The State Board of Education has prescribed two forms of standard teacher’s contracts: Regular Contracts and Provisional Contracts. See COMAR 13A.07.02.01(B)-(C). Regular Contracts “continue from year to year,” after an initial probationary period, and may be terminated only for cause. Md. Code Ann., Educ. § 6-202 (a)(1) (Repl. 2018; Supp. 2019); COMAR 13A.07.02.01(B).

Provisional Contracts, by contrast, “automatically terminate and expire on the thirtieth day of June next succeeding the date of [their] signing.” COMAR 13A.07.02.01(C). Separately, Maryland requires that teachers be certified to ensure that “[p]rofessional public educational staff possess the minimum essential knowledge and skills needed to achieve outcomes for public education.” COMAR 13A.12.01.01(A). Thus, Maryland public schoolteachers’ contracts require that “teachers . . . maintain active professional certification as a condition of employment,” McNamara v. Balt. City Bd. of Sch.

Comm’rs, MSBE Op. No. 19-15, at 3 (2019), available at http://marylandpublic schools.org/stateboard/Documents/legalopinions/2019/032019/McNamara.Op.19-15.pdf (last visited Apr. 28, 2020), and the Regular Contract “automatically terminate[s] if the employee ceases to hold a professional certificate,” COMAR 13A.07.02.01(B). Several types of professional certificates exist, most of which are “valid for 5 years,” COMAR 13A.12.01.06, and must be renewed periodically, see COMAR 13A.12.01.11(A)-(B). 2 Although the State Department of Education issues these certificates, local school systems “process[] [ ] requests for certificates for [their] employees, . . . and decid[e] whether [their] employees have met certification requirements.” McNamara, MSBE Op. No. 19-5, at 1.

A teacher whose professional certificate expires may be given a conditional certificate, which “is valid for 2 years” and may be renewed only once, for an additional two-year term. COMAR 13A.12.01.11(A)(3), (A)(4), & (C)(2). When a tenured teacher’s regular certification expires without renewal, “the regular teacher’s contract terminates automatically,” and the school system “ha[s] the discretionary authority to decide whether to hire [that teacher] under a new contract.” McNamara, MSBE Op. No. 19-15, at 4-5.

If the teacher obtains a conditional certificate, then she or he may be reemployed under a Provisional Contract. Jones v. Balt. City Bd. of Sch. Comm’rs, MSBE Op.

No. 15-05, at 2 n.2 (2015) http://archives.marylandpublicschools.org/MSDE/stateboard/legalopinions/2010/docs/Jon es.Opin.No.15-05.pdf (last visited Apr. 28, 2020) (citing COMAR 13A.07.02.01(C)). Background Facts Mr. Miller-Phoenix was employed by the Board as a teacher from 1992 to 2017, except for one five-year hiatus. Throughout that period, he alleges, he “observed . . . various and sundry violations of policies, violations of laws, and abuse of authority.” Mr. Miller-Phoenix asserts that he “timely reported these issues to his union, [the Board], news reporters, and [ ] elected officials,” and that in response, the Board “attempted to silence [him] and others who complained of poor school conditions by taking unfair and illegal reprisals.” 3 Mr. Miller-Phoenix began the 2016-2017 school year at Waverly Elementary/ Middle School. On September 14, 2016, he went on leave under the Family & Medical Leave Act, 29 U.S.C. §§ 2601-2654 (2019), due to post-traumatic stress disorder he claimed was caused by work experiences during his prior teaching assignments.

On October 14, 2016, Zakia McAllister, the Certification Manager for the Board, informed Mr. Miller-Phoenix in writing that his teaching certification from the State Department of Education had expired because he had failed to submit “timely and sufficient documentation required for renewal.” As a result, the letter continued, Mr. Miller-Phoenix’s “employment contract with City Schools terminated and, if applicable, [his] tenure expired.” The letter stated that the Department had issued Mr. Miller-Phoenix a conditional certificate, gave him instructions for seeking reinstatement of his full teaching certification, and informed him that he needed to sign a Provisional Contract by October 28, 2016 to maintain his employment. Although Mr. Miller-Phoenix later asserted that he had, in fact, completed the certification requirements before the applicable deadline, he did not challenge the Board’s decision at the time. Instead, on October 18, 2016, he signed a Provisional Contract with a stated term of July 1, 2016 to June 30, 2017. The day after signing his Provisional Contract, Mr. Miller-Phoenix sent an email to his principal at Waverly in which he expressed an intent to submit a workers’ compensation claim for post-traumatic stress disorder.

Although the record does not contain a copy of the workers’ compensation claim, Mr. Miller-Phoenix alleged in his complaint, and the Department conceded in its answer, that he filed such a claim on December 23, 2016. 4 In an email dated April 28, 2017, the Board informed Mr. Miller-Phoenix that his Provisional Contract would not be renewed and that, as a result, his “employment with City Schools will cease on June 30, 2017.” Although the email states that “[i]t is our understanding that you and your principal have met to discuss this matter and the rationale that led to this decision,” Mr. Miller-Phoenix alleges that he did not receive notice of the decision until months later, when his union representative forwarded the email to him.2 The email further states that the Board “expects you to fulfill all of the terms of your contract through June 30, 2017, including continuing to report to your assigned teaching location each day and fulfilling all of your teaching obligations.” Mr. Miller-Phoenix did not file a grievance regarding the non-renewal of his Provisional Contract. Procedural History On December 18, 2017, Mr. Miller-Phoenix filed suit in the Circuit Court for Baltimore City. In Counts I and II of his complaint, Mr. Miller-Phoenix alleged that the Board had discharged him in retaliation for his complaints about the Board’s misconduct, in violation of the Maryland Public School Employee Whistleblower Protection Act, Md. Code Ann., Educ. §§ 6 -901–6-906 (2017) (Count I, the “State Whistleblower Claim”), and Baltimore City’s Whistleblower Rights and Responsibilities Ordinance, Balt. City Code art.

I, §§ 8-1–8-13 (2019) (Count II, the “City Whistleblower Claim”). In Count III, he brought a claim for common law wrongful termination premised on his assertion that the 2 The Board sent the email to Mr. Miller-Phoenix’s work account, from which he claims he “was locked out . . . at least a couple months, if not three months, before [his] tenure ended.” 5 Board had discharged him in retaliation for filing his workers’ compensation claim. In Count IV, he alleged breach of contract. After a period of discovery, the Board moved for summary judgment on all four counts.

At the conclusion of a hearing on the motion, the circuit court granted summary judgment in favor of the Board with respect to (1) the City Whistleblower Claim, on the ground that Mr. Miller-Phoenix was not a Baltimore City employee,3 and (2) the State Whistleblower Claim and breach of contract claim, on the ground that Mr. Miller-Phoenix had failed to exhaust his administrative and contractual remedies. The court reserved ruling on the wrongful termination claim and requested further briefing from the parties as to whether a contractual employee could state a claim for wrongful termination based on non-renewal of the contract at the end of its term. After receiving the parties’ supplemental briefs, the circuit court issued a written order granting summary judgment in favor of the Board on all counts. With respect to wrongful termination, the court held that the tort did not apply to the non-renewal of an employment contract.

Thus, the court held, the Board “did not discharge [Mr. Miller- Phoenix]; rather, it had the right in the agreement to not renew his employment contract when it expired . . . and it chose not to renew.” Mr. Miller-Phoenix timely appealed. 3 Mr. Miller-Phoenix did not contest the motion for summary judgment on the City Whistleblower Claim and has not appealed that aspect of the circuit court’s judgment, so we do not discuss it further. 6 DISCUSSION “The question of whether a trial court’s grant of summary judgment was proper is a question of law subject to de novo review on appeal.” Myers v. Kayhoe, 391 Md. 188, 203 (2006) (citing Livesay v. Balt., 384 Md. 1, 9 (2004)). “In reviewing a grant of summary judgment under Md. Rule 2-501, we independently review the record to determine . . . whether the moving party is entitled to judgment as a matter of law. We review the record in the light most favorable to the nonmoving party and construe any reasonable inferences that may be drawn from the facts against the moving party.” United Servs. Auto. Ass’n v. Riley, 393 Md. 55, 67 (2006) (quoting Myers, 391 Md. at 203 ).

I. THE CIRCUIT COURT ERRED IN RULING THAT THE NON-RENEWAL OF A TERM CONTRACT CAN NEVER GIVE RISE TO A CLAIM FOR WRONGFUL TERMINATION. As the sole basis for granting summary judgment on Mr. Miller-Phoenix’s wrongful termination claim, the circuit court held that “an abusive or wrongful discharge claim may only be brought when an employee is terminated or discharged during the period of a contractual agreement and prior to the expiration of that agreement.” We disagree. Addressing an issue of first impression in Maryland, we hold that the tort of wrongful termination may lie when an employer decides to terminate an employment relationship by declining to renew an employment agreement for which the parties anticipated the reasonable possibility of renewal. Under the common law, “an employment contract of indefinite duration, that is, at will, can be legally terminated at the pleasure of either party at any time.” Yuan v. Johns Hopkins Univ., 452 Md. 436, 450 (2017) (quoting Adler v. Am.

Standard Corp., 291 Md. 7 31, 35 (1981)). As originally applied to employees at will, the tort of wrongful termination—also called wrongful discharge or abusive discharge, see footnote 1 above— created an exception to that rule. The tort permits an employee to bring a cause of action against an employer “when the motivation for the discharge contravenes some clear mandate of public policy.” Adler, 291 Md. at 47. In Ewing v. Koppers Co., 312 Md. 45 (1988), the Court of Appeals both (1) extended the tort to “employees who serve under contract” and (2) held that “[d]ischarging an employee solely because that employee filed a worker’s compensation claim contravenes [a] clear mandate of Maryland public policy.” Id. at 49-50 .

The Court based the latter conclusion on the General Assembly’s “strong statement to that effect in making such conduct a criminal offense,” as well as the Court’s “perception of the magnitude of the public interest in preserving the full benefits of the worker’s compensation system to employees, and deterring employers from encroaching upon those rights.” Id. Much of the case law following Adler and Ewing has concerned what constitutes a “clear mandate of public policy” capable of supporting a claim for wrongful termination. See, e.g., Yuan, 452 Md. at 455 (holding that federal regulations “regarding research misconduct do not provide a clear public policy to support a tort claim for wrongful termination of employment”); Wholey v. Sears Roebuck, 370 Md. 38, 43 (2002) (plurality opinion) (“[A] clear public policy mandate exists in the State of Maryland which protects employees from a termination based upon the reporting of suspected criminal activities to the appropriate law enforcement authorities.”); Molesworth v. Brandon, 341 Md. 621 , 628 8 (1996) (terminating an employee based on sex can give rise to a claim for wrongful termination if the employer has fewer than 15 employees, because no statute provides a remedy against such an employer); Makovi v. Sherwin-Williams Co., 316 Md. 603, 613 (1989) (clarifying that the tort of wrongful termination is not available when a statute prohibits the conduct and “confers a remedy” for it). In light of Ewing, we need not confront that issue here.

The Court of Appeals has already determined that terminating an employment relationship for filing a workers’ compensation claim is “particularly reprehensible conduct.” Ewing, 312 Md. at 49 . To date, however, our appellate courts have applied the tort of wrongful termination only to employees at will and contractual employees in the middle of their contractual terms. As the Board emphasizes, Mr. Miller-Phoenix was neither. The question is whether that distinction matters for purposes of the tort.

We conclude that it does not. We draw support for that determination from the rationale expressed by the Court of Appeals when it first recognized the tort in Adler and when it later extended the tort to contractual employees in Ewing. In Adler, the Court identified two different interests that would be served by permitting employees at will to sue for wrongful termination. One is the interest of the employee.

Notwithstanding that an “employer has an important interest in being able to discharge an at will employee whenever it would be beneficial to his business,” the Court deemed the employee’s interest in job security “deserving of recognition” when that interest is “threatened not by genuine dissatisfaction with job performance,” but based on an illegitimate consideration. 291 Md. at 42. The second interest served by recognition of 9 the tort is that of the public, because “society as a whole has an interest in ensuring that its laws and important public policies are not contravened.” Id. When the Court decided in Ewing to extend the tort to contractual employees, it noted that the first consideration mentioned in Adler was inapplicable. 312 Md. at 49 . The Court observed, however, that the vulnerability of at will employees “was only one of the factors considered by the Court” in Adler.

Id. The remainder of the Court’s discussion in Ewing is particularly relevant here: As Chief Judge Murphy pointed out for the Court [in Adler], “society as a whole has an interest in ensuring that its laws and important public policies are not contravened.” [Adler, 291 Md. at 42.] The tort action as we have recognized it is not intended to reach every wrongful discharge. It is applicable only where the discharge contravenes some clear mandate of public policy. Thus, the public policy component of the tort is significant, and recognition of the availability of this cause of action to all employees, at will and contractual, will foster the State’s interest in deterring particularly reprehensible conduct.

Moreover, it would be illogical to deny the contract employee access to the courts equal to that afforded the at will employee. We hold that a cause of action for abusive discharge exists in favor of employees who serve under contract as well as those who serve at will. Id. The societal interest discussed in Ewing pertains equally to a case of non-renewal of a term contract, as society’s “interest in ensuring its laws and important public policies are not contravened,” Adler, 291 Md. at 42, is equally strong regardless of how an employer terminates an employment relationship.

And recognition of the tort’s availability “to all employees . . . will foster the State’s interest in deterring particularly reprehensible conduct.” Ewing, 312 Md. at 49 (emphasis added). Simply put, society’s interest in 10 deterring conduct that contravenes important public policies is no less important at the end of a contract’s term than during it. The individual interest that was present in Adler, but not in Ewing, also supports recognition of the tort in this circumstance, because employees who are at the end of the term of a renewable contract are similarly vulnerable to those employed at will. In both circumstances, the employee lacks any contractual rights or other protection against the termination of the employment relationship “for any reason, or no reason at all.”4 See 4 This common characterization of an at will employment relationship is, of course, no longer entirely accurate.

Although a party to such a relationship may terminate the relationship for “no reason at all” without incurring legal liability, such a party may not terminate the relationship “for any reason.” Indeed, numerous federal, state, and local laws prohibit employers from terminating an employment relationship due to, among other things, an employee’s: (1) “[R]ace, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2(1) (1991); see also, e.g., Md. Code Ann., State Gov’t § 20-606(a)(1)(i) (2019 Repl.); Montgomery County Code § 27-19(a) (2020); (2) “[A]ncestry,” e.g., Montgomery County Code § 27-19(a); (3) Disability, see 42 U.S.C. § 12112 (a) (2008); State Gov’t § 20-606(a)(1)(i); see also, e.g., Montgomery County Code § 27-19(a); (4) Participation in a labor organization, see 29 U.S.C. § 158 (a)(3) (1974); (5) Pregnancy, see 42 U.S.C. § 2000e(k) (1991); State Gov’t § 20-609(b) (2013 Repl.); or “family responsibilities,” e.g., Montgomery County Code § 27-19(a); (6) Age, see 29 U.S.C. § 623 (a)(1) (2015); State Gov’t § 20-606(a)(1)(i); (7) Marital status, see State Gov’t § 20-606(a)(1)(i); see also, e.g., Montgomery County Code § 27-19(a); (8) Sexual orientation or gender identity, see State Gov’t § 20-606(a)(1)(i); see also, e.g., Montgomery County Code § 27-19(a); 11 Wholey, 370 Md. at 49 . That, however, does not render any less odious an employer’s decision to terminate the relationship for impermissible reasons