Ruffin Hotel Corp. v. Gasper

MURPHY, J. From November 17, 2003 to March 15, 2005, Kathleen Gasper, Respondent/Cross-Petitioner (Respondent), was employed by Ruffin Hotel Corporation of Maryland, Inc., Peti ⁵⁹⁸ tioner/Cross-Respondent (Petitioner). The case at bar stems from the Petitioner’s decision to terminate the Respondent’s employment, and is now before this Court as a result of proceedings in the Circuit Court for Montgomery County and in the Court of Special Appeals. In Gasper v. Ruffin Hotel Corporation of Maryland, Inc., 183 Md.App. 211 , 960 A.2d 1228 (2008), the Court of Special Appeals held that (1) the Respondent is entitled to a new trial on her “retaliatory discharge” claim on the ground that the Circuit Court delivered an erroneous jury instruction, (2) the Circuit Court erred in dismissing the Respondent’s “negligent hiring and retention” (“negligent hiring/retention”) claim, and (3) the Circuit Court did not abuse its discretion in granting the Petitioner’s motion to exclude evidence of “prior bad acts” allegedly committed by the employee of the Petitioner who made the decision to terminate the Respondent’s employment. As neither party was entirely satisfied with the opinion of the Court of Special Appeals, both requested that this Court issue a Writ of Certiorari.

The Petitioner requests that we answer three questions: (1) In retaliatory discharge claims brought under Maryland law, should juries be instructed that the plaintiff must prove that retaliation was a “determining factor,” as opposed to a “motivating factor,” in her termination? (2) Is a negligent hiring and retention claim based upon alleged sexual harassment and a subsequent allegedly retaliatory discharge preempted by Maryland anti-discrimination statutes? (3) Does the Maryland Workers’ Compensation Act preempt a negligent hiring and retention claim brought by an employee against her employer[?] The Respondent’s Cross-Petition presents us with a fourth question: Should evidence of the prior bad acts of a supervisor who assaulted, sexually harassed, and retaliated against other employees be admissible under Maryland Rule 5-404(b) in a civil case to show: ⁵⁹⁹ (A) motive/intent, a necessary element of a retaliation/discrimination cause of action? or (B) knowledge/notice on the part of the employer, a necessary element of a negligent hiring/retention cause of action? We granted both the Petition and the Cross-Petition. 408 Md. 149 , 968 A.2d 1064 (2009).

For the reasons that follow, we answer “no” to each of the Petitioner’s questions. Rather than answer “yes” or “no” to the Respondent’s question, because we are affirming the holdings that the Respondent is entitled to a new trial on her “retaliatory discharge” and negligent hiring/ retention claims, we shall discuss how the “prior bad acts evidence” issues should be resolved on remand. Background The Respondent had initially sought an award of damages from both the Petitioner and Irman Ahmed, who made the decision to terminate the Petitioner’s employment. The Petitioner’s five count “AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL” included the following assertions: COUNT III — NEGLIGENT HIRING AND RETENTION AGAINST DEFENDANT RUFFIN 57.

Prior to Mr. Ahmed’s termination in September 2002, many employees had complained of Mr. Ahmed’s abusive behavior including allegations of assault, battery, discrimination, sexual harassment and fear of retaliation. 57A. When considering Defendant Ahmed’s rehire, it was foreseeable that he would retaliate against employees complaining of assault and not protect employees from assault or battery since, upon information and belief, he had been accused of, and terminated for such conduct. It was foreseeable that Defendant Ahmed would not prevent as ⁶⁰⁰ saults and batteries upon female employees and would retaliate against employees who reported such conduct. * * * 59. Defendant Ruffin had actual knowledge of Defendant Ahmed’s retaliation.

Plaintiff informed Mr. Shea that Defendant Ahmed was retaliating against her for her complaint yet Defendant Ruffin retained Defendant Ahmed in a supervisory and management position over Plaintiff and put him in charge of investigating Plaintiffs complaint of assault, battery and sexual harassment and discriminating. * * * 63. Defendant Ruffin breached its duty by rehiring a General Manager with, upon information and belief, a proven history of sexual harassment, assault and battery, sexual discrimination and placing him in a supervisory role, responsible for addressing sexual harassment complaints. 64. Defendant Ruffin further breached its duty by allowing Defendant Ahmed to retaliate against Plaintiff after Defendant Ruffin became aware of the complaints and the retaliatory conduct. Upon Plaintiffs notifying Defendant Ruffin of the extreme and outrageous conduct by Mr. Ahmed, Defendant Ruffin intentionally permitted Ahmed to act extremely and outrageously toward Plaintiff.

COUNT IV — INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS BY DEFENDANT AHMED * * * 68. Defendant Ahmed’s conduct toward Plaintiff was both intentional and reckless. 69. When Defendant Ahmed was rehired in 2004, he approached Plaintiff because he wanted to terminate people who had complained of Defendant Ahmed’s improper conduct. Plaintiff was on notice that Mr. Ahmed would terminate someone for complaining of sexual harassment, assault, battery and discrimination. ⁶⁰¹ 70.

After Plaintiff came to Defendant Ahmed for help, he humiliated her by rejecting her story and then by telling her that the corporate office was not taking her complaint seriously. 71. Defendant Ahmed placed Plaintiff in a position where he knew she would be exposed to a threatening and intimidating atmosphere. Defendant Ahmed refused to intervene after Plaintiff informed him of the inappropriate conduct. Defendant Ahmed allowed Mr. Bridges to enter Plaintiffs office and further harass and intimidate her with obscenities.

At a critical point after Plaintiffs complaint, when she was extremely vulnerable, Defendant Ahmed left town creating an atmosphere of fear and intimidation at the hotel, where there was no supervisor to intervene on Plaintiffs behalf. 74. Defendant Ahmed systematically tried to force Plaintiff out of her job. He turned her co-workers against her and unfairly criticized her job performance. As a result of Mr. Bridges’ termination, Defendant Ahmed threatened to rearrange Plaintiffs schedule to conflict directly with her other work and family responsibilities.

The schedule change would also change the scope of Plaintiff’s job duties. WHEREFORE, Plaintiff Kathleen Gasper demands judgment against Defendant Irman Ahmed for Ninety-Four Thousand Six Hundred forty-five and ninety-nine centers ($94,645.99) in lost wages, Five Hundred Thousand Dollars ($500,000) in compensatory damages, and Five Hundred Thousand Dollars ($500,000) in punitive damages, with interest, costs and attorney’s fees. After the Circuit Court granted the Petitioner’s motion to dismiss the Respondent’s negligent hiring/retention claim, the Respondent filed a three count “SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL,” in which— although Mr. Ahmed was identified as a defendant — the Re ⁶⁰² spondent sought damages only from the Petitioner. 1 The Second Amended Complaint included the following assertions: 7. Defendant Ruffin received multiple Complaints that Defendant Ahmed was assaulting, committing batteries against and sexually harassing his employees and they were afraid he would retaliate against them for filing such [] complaints. 7A.

Upon information and belief, in September 2002, Defendant Ahmed was terminated from his position as General Manager at Courtyard for sexually harassing subordinates and coworkers. 8. Defendant Ahmed was re-hired as General Manager of Courtyard on April 26, 2004, and is currently employed in that position. 9. Upon his rehire, Defendant Ahmed asked [the Respondent] to identify signatures on a letter complaining of Defendant Ahmed’s sexual harassment, because he intended to terminate those employees. 10. Having previously worked for Defendant, James Bridges, a close friend or associate to Defendant Ahmed, was rehired by Defendant Ruffin on May 10, 2004. 11.

After Defendant Ahmed was rehired, he told [the Respondent] that other employees had filed complaints against him for sexual harassment and unwelcome touching and that he wanted to terminate those employees. 12. On January 17, 2005, while at the front desk of the Courtyard, Front Desk Manager James Bridges grabbed [the Respondent], pinned her against the wall and kissed her twice. [The Respondent] was terrified and intimidated by Mr. Bridges’ advances and show of force toward her. She was apprehensive about returning to work where she would have to confront him. 13. On January 19, 2005, [the Respondent] complained to Defendant Ahmed of Mr. Bridges’ actions.

Defendant ⁶⁰³ Ahmed discouraged [the Respondent] from making any further complaints. On January 20, 2005, Defendant Ahmed told Plaintiff he planned to do nothing about her complaint of sexual harassment because Mr. Bridges had denied the inappropriate conduct. On January 24, 2005, Plaintiff submitted a written complaint to Defendant Ahmed recounting the events of January 17, 2005. Mr. Ahmed again discouraged her from making further complaints and threatened her with termination.

Mr. Ahmed suggested that the corporate office was not taking [the Respondent’s] complaint seriously, either. 19. On February 10, 2005, Plaintiff mailed a letter to Phillip Ruffin, Owner and CEO of Defendant Ruffin describing both[ ] the events of January 17, 2005 and Mr. Ahmed’s response. 25. On March 14, 2005, Plaintiff sent an email to Mr. Shea (copying Defendant Ahmed) that Defendant Ahmed was retaliating against her for her complaints of sexual harassment. 26. On March 15, 2005, Defendant Ahmed terminated Plaintiffs employment effective immediately. 27.

Upon information and belief Mr. Bridges has been rehired by Defendants. 25.. Defendant Ahmed has given conflicting reasons for Plaintiffs discharge to both the Maryland Department of Labor Licensing and Regulation (herein after DLLR) and the Montgomery County Office of Human Rights. COUNT I — EMPLOYMENT DISCRIMINATION AND SEXUAL HARASSMENT BY DEFENDANT RUFFIN 38. Defendant Ahmed refused to alleviate the impact of Mr. Bridges’ presence or conduct.

Defendant Ahmed re ⁶⁰⁴ fused to facilitate any resolution to the problem. After being notified of the fear and intimidation experienced by Plaintiff, Defendant Ahmed allowed Mr. Bridges to confront Plaintiff in her office where he further intimidated her. 39. Defendant Ahmed responded to Plaintiffs verbal and written complaint with discouragement and threats. Defendant Ahmed disregarded the complaints, based solely on Mr. Bridges’ denial. * * * COUNT II — RETALIATION BY DEFENDANT RUFFIN * * * 46.

Plaintiff lodged a written complaint of sexual harassment to three supervisory levels; her immediate supervisor, Defendant Ahmed, his supervisor, Mr. Shea, and the owner and CEO of Defendant Ruffin, Mr. Ruffin. Under Montgomery County Code Part II § 27 — 19(c), Plaintiff is protected from retaliation for complaining of sexual harassment. 48. Plaintiffs adverse action and ultimate termination by Defendants Ruffin and Ahmed were in direct retaliation for her complaints of sexual harassment and pursuing legal redress against James Bridges for sexual assault. Defendant Ahmed warned Plaintiff that if she continued to pursue her sexual harassment complaint, she would be fired. * * * COUNT III — RESPONDEAT SUPERIOR BY DEFENDANT RUFFIN * * * 55.

The above described acts of Mr. Ahmed were committed within the scope of his employment with Defendant Ruffin in that he committed them on duty, inside of Defendant Ruffin’s premises, at the instruction of Defendant Ruffin, and in furtherance of Defendant Ruffin’s interests. ⁶⁰⁵ 56. Defendant Ruffin authorized those acts by placing Defendant Ahmed in a supervisory position with authority over Plaintiff. 57. Defendant Ruffin ratified those actions by not immediately suspending or dismissing him and allowing him to continue them, once Defendant Ruffin became aware of his actions. In the parties Joint Pre-Trial Statement filed pursuant to Md. Rule 2-504.2, the Petitioner stated: Defendant’s contentions Plaintiff was not terminated in retaliation for engaging in protected activity.

Plaintiff was terminated by Ahmed on March 15, 2005 because of her attitude which created a hostile working environment, her insubordination towards him, and complaints Ahmed received from the Courtyard’s staff regarding Plaintiff. Specifically, Ahmed predicated his decision to terminate upon two separate complaints from staff: (1) in a letter to Defendant Ruffin’s corporate headquarters dated February 17, 2005, the Courtyard’s Housekeeping employees complained they feared Plaintiff because she was rude and treated them “ ‘like dog[s]’ ” and (2) Randolph and Brunn, both management-level employees at the Courtyard, complained of Plaintiff isolated herself in her office, frequently slamming her office door, speaking to employees rudely, and generally causing the Courtyard’s Guest Satisfaction Scores to suffer. Plaintiffs volatile attitude hampered the Courtyard’s attempt to protect its Marriott flag by getting out of the “red zone.” Finally, Plaintiffs hostility and insubordination towards Ahmed is demonstrated through a flurry of hostile e-mails in late February and early March 2005. During the jury trial, the Respondent presented evidence that was consistent with the above quoted assertions set forth in her Amended Complaint, while the Petitioner presented evidence that was consistent with the above quoted contentions made in the Pre-Trial Statement. ⁶⁰⁶ Before “resting” the Respondent’s case-in-chief, the Respondent’s counsel requested that the Circuit Court “reverse” its in limine ruling that excluded evidence of what was referred to as “the 2002 incident,” as a result of which Mr. Ahmed’s employment was terminated.

The Circuit Court’s on-the-record response to this request included the following analysis: The Court has listened intently to all of the evidence in this case, and the plaintiff wishes to bring in incidents of sexual harassment or allegations of it in 2002. First of all, I would, I find, as a matter of law in this case, or I find a determination in this case that those incidents in 2002 would be irrelevant. Under 5-401, “ ‘Relevant Evidence’ means evidence having any tendency to make the determination of the action more probable or less probable than it would be without the evidence.” I find that the entire proffer and all of the incidents, even if true, even if exactly true — and there, again, they haven’t been tried, we’re talking about prior acts — I find, would be irrelevant. I find it would be irrelevant whether or not Mr. Ahmed was the perpetrator of sexual harassment in the workplace at the very same location in 2002.

I also would find that if someone were to disagree with me that it would be relevant[,] under 5-403, I find that the evidence should be excluded because any probative value it would have is substantially outweighed by the danger of unfair prejudice. The conduct that’s being complained of is the identical conduct perpetrated by Mr. Bridges. I find that there would be extreme danger of unfair prejudice. I think it would also be a confusion of the issues, which is also under 5-403, because the jury would have to tangle and untangle the incidents that happened in 2002 and somehow try and sort that out and see what relevance they have to this 2005 incident with the plaintiff in the case at bar.

I also find the jury would be somewhat misled. I am not ruling that it would be a waste of time because the time is not something the Court concerns itself with; it takes all the time that it would need in the case. ⁶⁰⁷ So, the only way I believe — also, under 5-404(b), it indicates, “Evidence of other,” and this would be, not a “crime” because he hasn’t been found guilty of a crime, it would be “wrongs or acts” — they’re “not admissible to prove character of a person in order to show action in conformity therewith.” And that’s exactly what I find these episodes would be, coming in; that they would be offered to prejudice the home office, the only defendant in this case, through its employee, Mr. Ahmed. There are exceptions under “motive, opportunity, intent, preparation.” The Defense indicates motive and intent. I don’t believe that they are issues, and I don’t believe that they would properly show motive/intent in this particular case.

The fact that he did or did not commit an offense in 2002 has nothing to do with his motive or his intent that I find in this particular case. Only the Respondent’s “retaliatory discharge” claim was submitted to the jury, which received the following instruction: Plaintiff alleges that she has been retaliated against by defendant because of her opposition to alleged harassing conduct. To prevail on her claim of retaliation, the plaintiff must prove by a preponderance of the evidence that (1) the plaintiff opposed practices that she reasonably and in good faith believed constituted unlawful harassment; (2) that she was discharged; and (3) the plaintiffs opposition to harassing conduct was a determining factor in the decision to discharge her. (Emphasis added).

The Respondent noted an exception to this instruction, arguing that she was entitled to a verdict in her favor if the jurors were persuaded that her opposition to unlawfully harassing conduct was a “motivating factor” in the decision to discharge her. The jury was instructed to record its verdict on a “VERDICT SHEET” that included the following question and directions: 1. Did Plaintiff prove, by a preponderance of the evidence, her claim of unlawful retaliation? (check one) ⁶⁰⁸ Yes_ No_ (If you responded “No” to Question 1, stop now and inform the Courtroom Bailiff that you have reached a verdict.

If you answered “yes” to Question 1, proceed to Question 2.) The jury answered “No” to Question 1. After the Circuit Court entered a final judgment in favor of the Petitioner, the Respondent noted an appeal to the Court of Special Appeals. In the Court of Special Appeals, the Respondent argued that she was entitled to a new trial on her “retaliatory discharge” and negligent retention/hiring claims on the grounds that the Circuit Court should not have (1) instructed the jury that the plaintiff asserting a “retaliatory discharge” claim is required to prove that his or her “opposition to harassing conduct was a determining factor in the decision to discharge [him or] her,” (2) dismissed the negligent hiring/retention claim, and (3) excluded evidence of “other bad acts” allegedly committed by Mr. Ahmed. As stated above, the Court of Special Appeals agreed with the Respondent’s first two arguments, but rejected the third.

Discussion I “We have held that the standard of review for jury instructions is that so long as the law is fairly covered by the jury instructions, reviewing courts should not disturb them.” Farley v. Allstate Ins. Co., 355 Md. 34, 46 , 733 A.2d 1014, 1020 (1999) (citing Jacobson v. Julian, 246 Md. 549, 561 , 229 A.2d 108, 116 (1967)). See also Boone v. American Mfrs. Mut.

Ins. Co., 150 Md.App. 201, 227 , 819 A.2d 1099, 1113 (2003). If, however, the instructions are “ambiguous, misleading or confusing” to jurors, those instructions will result in reversal and a remand for a new trial. See Battle v. State, 287 Md. 675, 684-85 , 414 A.2d 1266, 1271 (1980) (quoting Midgett v. State, 216 Md. 26, 41 , 139 A.2d 209, 217 (1958)).

On the other hand, the instructions must be read in context. “The charge to the jury must be considered as a ⁶⁰⁹ whole and the Court will not condemn a charge because of the way in which it is expressed or because an isolated part of it does not seem to do justice to one side or the other.” Morris v. Christopher, 255 Md. 372, 378 , 258 A.2d 172, 176 (1969) (citing Nora Cloney & Co. v. Pistorio, 251 Md. 511, 515 , 248 A.2d 94, 96 (1968)). Smith v. State, 403 Md. 659, 663-64 , 944 A.2d 505, 507 (2008). In Gasper v. Ruffin, supra, while holding that the Circuit Court erred when it instructed the jury that the Respondent was required to persuade the jury that her opposition to harassing conduct was a determining factor in the decision to terminate her employment, the Court of Special Appeals stated: Discussions of the standard for proving employment discrimination under Title VII of the United States Code are instructive. In a plurality decision, in Price Waterhouse v. Hopkins, 490 U.S. 228 , 109 S.Ct. 1775 , 104 L.Ed.2d 268 (1989), Justice Brennan, writing for the plurality, stated that[:] when a plaintiff ... proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiffs gender into account.

Id. at 258 [ 109 S.Ct. 1775 ] (emphasis added). The “motivating factor” test was later ratified by a unanimous Supreme Court decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 , 123 S.Ct. 2148 , 156 L.Ed.2d 84 (2003). In Costa , the Court concluded, “In order to obtain an instruction under [Title VII] § 2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for any employment practice.’ ” Id. at 101 [ 123 S.Ct. 2148 ] (emphasis added). ⁶¹⁰ Ruffin argues that Price Waterhouse and Costa addressed only “mixed-motive” cases of discrimination, attempting to distinguish retaliation for protected conduct as a “single motive” claim. Ruffin’s assertion that the proper standard is a “but for” test does not comport with Maryland law.

Specifically, this Court has previously determined that the correct test for determining retaliatory discharge claims is whether the protected conduct was a “motivating factor” in the discharge. See Magee v. DanSources Tech. Servs., 137 Md.App. 527, 565-66 , 769 A.2d 231 (2001). Ruffin, however, relies on [Molesworth v. Brandon ], 341 Md. 621 , 672 A.2d 608 (1996), where the Court of Appeals reviewed the following instruction: To find that the Plaintiff was wrongfully discharged, you must find that her termination was motivated by sex discrimination.

In other words, the Plaintiff was fired because she was a female. ... The Plaintiff must prove the Defendant intentionally discriminated [against] the Plaintiff. That is, but for the Plaintiffs gender, the Defendant would not have made the decision not to continue the Plaintiffs employment. Id. at 645 [ 672 A.2d 608 ].

The Court of Appeals noted that “[t]hese instructions adequately describe the burdens of proof in a sex discrimination case.” Id. Ruffin cites this language for the proposition that “but for” is the correct standard of proof in a retaliatory discharge case. We rejected this same interpretation in Magee, supra, noting that while the Molesworth Court did approve the instruction recited above, it added a footnote to the phrase “but for”: The plurality decision in Price Waterhouse [v. Hopkins, 490 U.S. 228, 240 , 109 S.Ct. 1775 , 104 L.Ed.2d 268 (1989) ], ruled that “[t]o continue the words ‘because of as a colloquial short hand for ‘but for causation,’ ... is to misunderstand them.” Title VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations. ⁶¹¹ When, therefore, an employer considers both gender and legitimate factors at the time of making a decision, that decision was “because of’ sex and the other, legitimate considerations — even if we may say later, in the context of litigation, that the decision would have been the same if gender had not been taken into account. Id. at 241 [ 109 S.Ct. 1775 ].

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

Id. at 466. Without wading into deeper semantic waters, we agree that the use of “determining” in place of “motivating” is confusing, and does not reflect the correct standard of proof. We believe Maryland law to be settled that a plaintiffs burden is to prove that the exercise of his or her protected activity was a “motivating” factor in the discharge, thereby creating burden-shifting to the defendant. An instruction that imposes upon a plaintiff the burden of proving that the exercise of his or her protected activity was the “determin ⁶¹² ing” factor in the discharge from employment is a misstatement of the law, and erroneous. 183 Md.App. at 219-22 , 960 A.2d at 1233-34 .

Before this Court, the Petitioner continues to argue that the above quoted jury instruction was a correct statement of the applicable law because (1) the Respondent’s claim involves a “single motive” claim, rather than a “mixed-motive” claim, and (2) the Circuit Court was required to deliver an instruction that conformed to the language that this Court approved in Molesworth v. Brandon, supra. As to the first argument, we are persuaded that the theoretical distinction between “single motive” and “mixed-motive” cases is of no consequence whatsoever when — as is the situation in the case at bar — the jurors (who are entitled to accept all, part, or none of the evidence presented, and who are entitled to draw reasonable inferences from evidence that they accept as true) could reasonably find that the employer’s decision to terminate was based upon both the employee’s deficient performance and the employee’s opposition to unlawful harassing conduct, the employee is entitled to a verdict in his or her favor if the jurors are persuaded that the employee’s opposition to unlawfully harassing conduct played a motivating part in the employer’s decision to terminate the employee’s employment. As to the Petitioner’s second argument, our opinion in Molesworth v. Brandon does not include a holding that a “but for” (i.e. “determining factor”) instruction is required in a retaliatory discharge case. That case involved a “common law wrongful discharge” action asserted by a veterinarian (Dr. Molesworth) against her former employers (Dr. Brandon, and his professional services corporation).

In the Circuit Court for Anne Arundel County, a jury awarded Dr. Molesworth $39,189.00 in damages, and Dr. Brandon noted an appeal to the Court of Special Appeals, where he argued that (1) because he and his corporation are “statutorily exempt from the enforcement provisions of the Maryland Fair Employment Practice Act,” neither he nor his corporation could be sued for ⁶¹³ wrongful discharge, (2) the evidence presented was “insufficient” to support the verdict, and (3) the Circuit Court erroneously refused to instruct the jury “that if they found that the hirer and the firer was the same person and if they further found that the employment period was sufficiently short, they could infer, if they chose to do so, that the discharge was not due to discriminatory intent.” Brandon v. Molesworth, 104 Md.App. 167, 203 , 655 A.2d 1292, 1310 (1995). In the above cited reported opinion, the Court of Special Appeals rejected appellants’ first and second arguments, but agreed with the third. Id. Dr. Molesworth filed a petition for writ of certiorari.

So did Dr. Brandon. After granting both petitions, this Court expressly stated that our opinion would address only two issues: 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. Molesworth v. Brandon, 341 Md. 621, 624 , 672 A.2d 608, 609 (1996). As to the first issue, this Court held “that Art. 46B, § 14 provides a clear statement of public policy sufficient to support a common law cause of action for wrongful discharge against an employer exempted [from the administrative process of the Act]” by Art. 49B, § 15(b).

Id. at 637, 672 A.2d at 616 . As to the second issue, while noting that “the defendant was free to argue to the jury that since the same person hired and fired the defendant they may infer that the discharge was not due to sex discrimination[,]” this Court held “that the trial court properly refused to instruct the jury that where the same person