Molesworth v. Brandon

MURPHY, Chief Judge. The issues in this case are first, whether a common law cause of action for wrongful discharge of a female employee based on sex discrimination lies against an employer with less than fifteen employees and second, whether, in such a case, the court must instruct the jury that where the same person hires and fires the employee, there is an inference that the discharge was not due to the employee’s sex. I Dr. Linda Molesworth, D.V.M., graduated from the University of Pennsylvania Veterinary School, received her license to practice veterinary medicine in the state of Maryland, and, on July 1, 1988, began working for Dr. Randall Brandon, D.V.M., whose practice concentrated on thoroughbred racehorses. The other members of the practice at that time were Dr. Jeffrey Palmer, who had been with the practice for several years, and Dr. Mark Akin, who had started just a few months earlier.

Molesworth was the first female full-time veterinarian employed by Brandon. When she began, Molesworth was informed that, as the least experienced person in the practice, her primary duty would be working in the Lasix barn at the Lam-el racetrack, giving Lasix shots to horses, 1 approving medications, and performing other miscellaneous tasks. On several occasions, Brandon told Molesworth that someone had complimented her work. Molesworth received bonuses in December, 1988 and ⁶²⁵ March, 1989.

On July 1, 1989, her contract was renewed and her salary increased from $25,000 to $30,000. Dennis Manning, a trainer at the racetrack, was not pleased with Molesworth, however, because he did not want a female veterinarian in the barn. Nevertheless, in August of 1989, Molesworth received another bonus along with a note from Brandon which read: Linda, you are doing a very good job and I appreciate your efforts. Don’t worry about the Mannings.

We can’t please them all. He’s the one with the problem. Thanks, Randy. Again, in December, 1989, Molesworth received a bonus with a note from Brandon which read: “You are doing very well in the practice and the clients are quite happy with you.” Akin decided to leave the practice as of April 1, 1990.

A trainer who was not employed by Brandon gave Akin a going-away party to which Molesworth was not invited. When Molesworth discovered this, she asked Brandon, at a meeting in April, 1990, why she had not been invited. He laughed and said she would have been the only woman there. At the same meeting, Brandon informed Molesworth that some of the trainers at the racetrack were complaining about her.

Brandon said her work was fíne and that the trainers had “never had a female veterinarian work for them before.” He told her that she was doing fíne and to “give them some time.” A new associate, Dr. Greg Fox began working for Brandon in May, 1990. Molesworth and Fox performed about the same amount of Lasix work. Molesworth complained to Brandon that Fox, as the most junior member of the practice, should be primarily responsible for the Lasix work. Brandon responded that he wanted Fox to meet the clients.

During May and June of 1990, Molesworth was not informed of any other complaints from trainers and on July 1, 1990, her salary was increased from $30,000 to $35,000. On July 13, 1990, Molesworth met with Brandon and Palmer, who had a contract to acquire 48% of the stock in the incorporated practice. Brandon informed Molesworth that her contract would not be renewed because of complaints from approxi ⁶²⁶ mately eight trainers. Molesworth asked if she was being fired because she had complained about the Lasix schedule.

Brandon replied that was not the reason. She then asked if she was being fired because she is a woman. Palmer replied, “Yes, that’s part of it.” According to Molesworth’s testimony, Brandon “nodded in agreement and looked away” without verbally responding. Brandon told Molesworth that he would give her an excellent recommendation and that her veterinary work was fine.

On September 20, 1991, Molesworth filed a complaint against Brandon in the Circuit Court for Anne Arundel County alleging common law wrongful discharge. The complaint alleged that when she was terminated by Brandon, “she was informed by [him] that her employment was being terminated by him because of the fact that she was female.” She claimed $150,000 in compensatory damages and $150,000 in punitive damages. The court denied Brandon’s Motion for Summary Judgment. At trial, Molesworth testified about the July 13, 1990 meeting with Brandon and Palmer.

Palmer denied having made the statement attributed to him, and Brandon denied having nodded in agreement. Both doctors testified that when Molesworth asked if she was being fired because she was a woman, they answered “no.” Nancy Heil, a trainer, testified that she had no problem with Molesworth. Several other trainers testified for Brandon that Molesworth was argumentative and inflexible. Akin testified that when Molesworth gave shots, she frequently left “knots” which upset the trainers.

In addition, Dr. Jean Dobson testified that Brandon offered her a job in the fall of 1990, after Molesworth was fired and before she filed suit. Dobson said she turned down the offer because she earned significantly more money at the Food and Drug Administration. At the end of the testimony, the court denied Brandon’s Motion for Judgment. Therefore, he requested that the jury be instructed, in part, as follows: ⁶²⁷ In cases where the hirer and firer are the same person, there is a strong inference that the discharge from employment was not due to sex discrimination, because it does not make sense that someone would hire a member of a class he does not like, only to discharge that person once he or she is on the job.

The court refused to instruct the jury as requested. Molesworth claimed damages of $28,496.41 for lost wages from 1990, 1991, and 1992. She presented no evidence of monetary damages for 1993. The jury interrupted its deliberations to inform Judge Chester Goudy that it had found in favor of Molesworth but without any non-economic damages.

It inquired whether it could award attorney’s fees, and Judge Goudy instructed the jury that it could not. On September 13, 1993, the jury awarded Molesworth $39,198 in damages. Brandon’s Motion for Judgement Notwithstanding the Verdict, Motion for New Trial, and Motion to Revise the Judgment were denied. Brandon appealed to the Court of Special Appeals; that court held that the common law wrongful discharge cause of action was available to Molesworth and that she presented sufficient evidence to withstand Brandon’s Motions for Summary Judgment, Judgment, and Judgment Notwithstanding the Verdict.

The court, nonetheless, reversed the circuit court’s judgment, basing its ruling on the lower court’s refusal to instruct the jury as requested by Brandon, and remanded for a new trial. Brandon v. Molesworth, 104 Md.App. 167 , 655 A.2d 1292 (1995). Both Brandon and Molesworth filed petitions for certiorari, which we granted. The Maryland Commission on Human Relations, the agency charged with interpreting, administering, and enforcing the Maryland Fair Employment Practices Act, joined as amicus curiae in support of Molesworth.

The Maryland Chamber of Commerce and the National Federation of Independent Business, statewide and national agencies that promote small businesses, joined as amici curiae in support of Brandon. ⁶²⁸ II Molesworth alleges that in terminating her employment, Brandon violated the public policy announced in § 14 of the Fair Employment Practices Act, Maryland Code (1994 Repl. Vol., 1995 Supp.) Art. 49B: It is hereby declared, tó be the policy of the State of Maryland, in the exercise of its police power for the protection of the public safety, public health and general welfare, for the maintenance of business and good government and for the promotion of the State’s trade, commerce and manufacturers to assure all persons equal opportunity in receiving employment and in all labor management-union relations regardless of race, color, religion, ancestry or national origin, sex, age, marital status, or physical or mental handicap unrelated in nature and extent so as to reasonably preclude the performance of the employment, and to that end to prohibit discrimination in employment by any person, group, labor organization, organization or any employer or his agents. (emphasis added). Brandon alleges that since employers with less than fifteen employees are exempted under § 15(b), 2 the public policy announced in § 14 does not apply to those employers.

We disagree and hold that, to this extent, the § 15(b) exemption merely excludes small businesses from the administrative process of the Fair Employment Practices Act under the aegis of the Human Relations Commission, but not from the public policy of § 14. The plain language of § 14, the legislative history of Article 49B, and prior decisions of this and other state and federal courts support this conclusion. A When she was terminated, Molesworth was an at will employee. “The common law rule, applicable in Maryland, is ⁶²⁹ that an employment contract of indefinite duration, that is, at will, can be legally terminated at the pleasure of either party at any time.” Adler v. American Standard Corp., 291 Md. 31, 35 , 432 A.2d 464 (1981). The legislature has “engrafted exceptions” upon that rale, such as Art. 49B, § 16(a)(1) making it unlawful for an employer to discharge an employee “because of ... race, color, religion, sex, age, national origin, marital status, or physical or mental handicap.... ” Adler, supra, 291 Md. 31 , 432 A.2d 464 .

In Adler , we recognized a judicial exception to the terminable at will rule: the common law cause of action for wrongful discharge. We held that “Maryland does recognize a cause of action for abusive discharge by an employer of an at will employee when the motivation for the discharge contravenes some clear mandate of public policy.” 3 Id. at 47 , 432 A.2d 464 . Generally, a plaintiff must allege violation of a particular statute with some specificity to state a cause of action for wrongful discharge. In Adler , the complaint alleged that the plaintiffs discharge “was motivated solely by [the corporation’s] desire ... to conceal improprieties and illegal activities which plaintiff might have disclosed.... ” Id. at 34 , 432 A.2d 464 .

The complaint did not, however, state a cause of action for wrongful discharge. The first source of public policy Adler advanced was a criminal statute. Adler’s allegations were “too general, too conclusory, too vague and lacking in specifics to mount up to a prima facie showing that the claimed misconduct contravened” the statute. Id. at 44 , 432 A.2d 464 .

Second, Adler proposed that bribery and falsification of corporate records are so clearly against public policy that he need not identify any particular source. He defined “public policy” as that which is “commonly accepted as necessary to the public good.” Id. at 43 , 432 A.2d 464 . Quoting Md.-Nat’l Cap. P. & P. v. Wash.

Nat’l Arena, 282 Md. 588, 605-606 , 386 ⁶³⁰ A.2d 1216 (1978), we declined to adopt such an expansive view 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 judicial 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- Adler, supra, 291 Md. at 45 , 432 A.2d 464 . “[Declaration of public policy is normally the function of the legislative branch.” Id. at 45 , 432 A.2d 464 ; see also Finance & Guaranty Co. v. Defiance Motor Truck Co., 145 Md. 94, 99 , 125 A. 585 (1924) (“[T]he public policy of a state is the policy which its people speaking through their legislature adopt.”). We will recognize public policy that is not derived from constitutional or statutory provisions as the basis of a judicial determination “only with the utmost circumspection.” Id. at 46, 432 A.2d 464 , quoting Patton v. United States, 281 U.S. 276, 306 , 50 S.Ct. 253, 261 , 74 L.Ed. 854 (1930). Thus, “absent a statute expressing a clear mandate of public policy, there ordinarily is no violation of public policy by an employer’s discharging an at will employee.... ” Watson v. Peoples Ins.

Co., 322 Md. 467, 478 , 588 A.2d 760 (1991); see also Ewing v. Koppers Co., 312 Md. 45 , 537 A.2d 1173 (1988). B We must decide whether § 14 of Art. 49B provides a sufficiently clear mandate of public policy to support Moles-worth’s common law wrongful discharge cause of action against Brandon. Specifically, we must determine whether the term “employer” in § 14 includes those exempted under § 15(b). “In construing the meaning of a word in a statute, the cardinal rule is to ascertain and carry out the real legislative intention. The primary source of legislative intent is, of course, the language of the statute itself.” Tucker v. Fire ⁶³¹ man’s Fund Insurance Co., 308 Md. 69, 73 , 517 A.2d 730 (1986).

Ordinarily, therefore, we need not look beyond the plain language of the statute to discover the legislative intention. In other circumstances, however, a statute may be ambiguous and “the entire statutory scheme must be analyzed as a whole.” Outmezguine v. State, 335 Md. 20, 41 , 641 A.2d 870 (1994). In addition, we may need to “consider other ‘external manifestations’ or ‘persuasive evidence,’ including a bill’s title and function paragraphs, ... and other material that fairly bears on the fundamental issue of legislative purpose or goal.... ” Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 514-15 , 525 A.2d 628 (1987). The Fair Employment Practices Act, Art. 49B, makes certain actions “unlawful employment practices” and creates an administrative procedure for handling discrimination complaints.

It is an unlawful employment practice, under Art. 49B, § 16(a)(1), for an “employer ... to discharge any individual ... because of such individual’s race, color, religion, sex, age, national origin, marital status, or physical or mental handicap ...” Any person alleging discrimination under § 16(a)(1), or any other section of Article 49B, may file a complaint with the Commission on Human Relations. § 9A(a). Under §§ 3, 4, 9, 10, 11, and 12, the Commission on Human Relations may receive and issue complaints alleging discrimination, conduct investigations based on complaints received, hold investigative hearings for fact finding, bring civil actions on behalf of complainants for injunctive relief, conduct hearings in cases of failure to reach agreement on the elimination of discriminatory actions, and institute litigation to enforce compliance with the article. See Weathersby v. Kentucky Chicken Co., 86 Md.App. 533 , 587 A.2d 569 (1991); rev’d on other grounds, 326 Md. 663 , 607 A.2d 8 (1992). Molesworth did not file a complaint with the Commission because it was her belief that Brandon is not included within the definition of “employer” in § 15(b) and is, therefore, exempt from this administrative process. ⁶³² The public policy in § 14, however, by its own language, proscribes discrimination in employment by “any employer.” (emphasis added).

If the term “employer” in § 14 were meant to refer only to employers as defined in § 15(b), the term “any” would be unnecessary. We seek to read statutes “so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory.” Montgomery County v. Buckman, 333 Md. 516, 524 , 636 A.2d 448 (1994). Thus, § 14 applies to “any employer,” including those exempted in § 15(b). Maryland’s public policy against sex discrimination is ubiquitous.

Section 14 is one of at least thirty-four statutes, one executive order, and one constitutional amendment in Maryland that prohibits discrimination based on sex in certain circumstances. Together these provisions provide strong evidence of a legislative intent'to end discrimination based on sex in Maryland. We presume the legislature did not intend to abrogate the common law, absent a clear statement to the contrary. James v. Prince George’s County, 288 Md. 315, 335 , 418 A.2d 1173 (1980).

Similarly, where a public policy is as pervasive as Maryland’s policy against sex discrimination, we presume the legislature does not intend to allow violations of that policy, absent some indication of a contrary intent. Brandon has provided no proof that the legislature intended to permit employers having less than fifteen employees to discriminate on the basis of sex. On the contrary, the language of the statute indicates that the legislature intended to prohibit sex discrimination by “any employer,” consistent with the legislature’s general intent to end sex discrimination in Maryland. The legislative history supports this interpretation.

Article 49B was modeled on federal anti-discrimination legislation. Chapter 717 of the Acts of 1965; Weathersby, supra, 86 Md.App. at 545 n. 2, 587 A.2d 569 . In addition, the title of Chapter 493 of the Acts of 1973, which reduced from twenty-five to fifteen the number of employees in the definition of “employer,” indicates that the Act was passed to “generally conform the State Fair Employment Practices Law to the ⁶³³ 1972 Amendments of Title VII, Federal Civil Rights Act of 1964.” Therefore, in the absence of contrary legislative pronouncements on the Maryland law, we may turn to the legislative history of the federal law to discern the legislative intent behind the § 15(b) exemption. See Chappell v. Southern Maryland Hosp., 320 Md. 483, 494 , 578 A.2d 766 (1990).

Amici curiae, the Maryland Chamber of Commerce and the National Federation of Independent Business, correctly identify the concern of many Senators that expanding the scope of the federal law would subject small businesses to expensive lawsuits and potential bankruptcy. See, e.g., 118 Cong.Rec. 2387-89 (1972). They fail, however, to recognize the concern of other members of Congress that expanding the scope of the Act would overburden the Equal Employment Opportunity Commission (EEOC), the federal equivalent of the Human Relations Commission. The EEOC estimated that expanding Title VII to encompass employers with eight or more employees, as originally proposed, would yield a 25% increase in the EEOC’s workload.

H.R.Rep. No. 92-238, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2142. The minority report of the House Committee on Education and Labor stated: “Additionally, we fear that, in view of the estimated 18-month to two-year backlog that currently exists at the EEOC, the intent of H.R. 1746 to expand the EEOC’s jurisdiction will serve only to retard and frustrate the purposes and objectives of the Equal Employment Opportunity Act. ... [T]he massive expansion of jurisdiction and transferring of various programs to the EEOC at a time when the agency is struggling to control a burgeoning backlog of cases, will further hamstring efforts to bring meaningful and timely relief to persons aggrieved by discriminatory employment conditions____ [T]he committee bill ... will thrust the EEOC into an administrative quagmire which can only delay the attainment of a reasonable standard of operational efficiency that Congress should expect and demand.” ⁶³⁴ U.S.Code Cong. & Admin.News 1972 at 2137, 2167, 2176.

Therefore, the intent of at least some of the legislators was to exempt small employers from the administrative process under the Act to avoid overburdening the EEOC. It is this intent that is reflected in the language of §§ 14 and 1503). If the legislature had intended to protect small employers from common law wrongful discharge lawsuits, it would have limited § 14 to employers “as defined in § 15” and it would have preempted the field of employment discrimination, which we have previously held it did not do. National Asphalt v. Prince George’s Co., 292 Md. 75, 79 , 437 A.2d 651 (1981).

This interpretation is also supported by the case law. In Kerrigan v. Magnum Entertainment, Inc., 804 F.Supp. 733 (D.Md.1992), the court, applying Maryland law, held that a wrongful discharge cause of action for sex discrimination is available against an employer exempted under § 15(b). In that case, the plaintiff alleged her employer discharged her because she was pregnant. The employer argued that there was a “deliberate legislative intent to avoid burdening small businesses with suits alleging discrimination in employment.” Id. at 735.

The court disagreed and said that “while art. 49B exempts small businesses from its burdensome administrative requirements, there is no reason to construe art. 49B as exempting small businesses from its anti-discrimination policy.” Id. at 736. Likewise, in Collins v. Rizkana, 73 Ohio St.3d 65 , 652 N.E.2d 653, 660-61 (1995), the Supreme Court of Ohio upheld a wrongful discharge claim based on the public policy in a statute prohibiting discrimination in employment from which the employer was exempt. 4 The legislature’s intent, the court said, was “to exempt small businesses from the burdens of [the Chapter], not from its antidiscrimination policy.” Id. 652 N.E.2d at 660-61 . And, in Bennett v. Hardy, 113 Wash.2d 912 , 784 P.2d 1258 (1990), the Supreme Court of Washington held that a cause of action for wrongful discharge ⁶³⁵ was available based on a statute prohibiting age discrimination but providing no remedy. The state’s anti-discrimination statute, it said, further supported the court’s result.

Despite the fact that the latter statute exempted the employer from its administrative procedures, it nonetheless, indicated “the Legislature’s recognition that retaliatory discharge is an unfair employment practice.” Id. 784 P.2d at 1264 . 5 The alternative interpretation of the statute advanced by Brandon flies in the face of the view taken by the United States District Court for the District of Maryland which, applying Maryland law, aptly characterized the employer’s interpretation: “Bluntly put, [the employer] argues that the General Assembly intended to grant small businesses in Maryland a license to discriminate [on the basis of sex] against their employees with impunity.” Kerrigan, supra, 804 F.Supp. at 735 . Finding no merit in such a contention, Kerrigan relied on our decision in National Asphalt, supra, 292 Md. 75 , 437 A.2d 651 , where we held that §§ 14-18 of Art. 49B did not preempt local laws on the same subject. National Asphalt was exempted from the state law because it had less than fifteen employees, but it was covered by a similar county ordinance. Id. at 76-77, 437 A.2d 651 .

When an employee filed a sex discrimination complaint with the Prince George’s County Human Relations Commission, National Asphalt sought a declaratory judgment that the county law was preempted by the state law. We held that the county law was not preempted because Article 49B does not comprehensively cover the entire field of employment discrimination. Id. at ⁶³⁶ 77-78, 437 A.2d 651 . “Employers with less than fifteen employees are not permitted by the state statute to discriminate in their employment practices; they simply are not covered.” Id. at 79 , 437 A.2d 651 . In order for there to have been a conflict between the state and county laws, the state law would have to permit discrimination by small employers.

Since it did not, there was no conflict. Id. at 79 n. 3, 437 A.2d 651 . Similarly, in Coalition v. Annapolis