Townsend v. L.W.M. Management, Inc.

⁵⁹ ROBERT M. BELL, Judge. William S. Townsend, III, appellant, former manager of L’Auberge Restaurant at the Gateway Motel in Ocean City, Maryland, was discharged by Leighton W. Moore, Jr., the president of L.W.M. Management, Inc. d/b/a Gateway Motel, Inc., appellees, after he took a lie detector test 1 initiated by appellees. Appellant filed suit for abusive discharge against appellee in the Circuit Court for Worcester County. Appellee’s motion for directed verdict 2 at the end of appellant’s case was granted by the court on the grounds that it was uncontroverted that the test was not required as a condition of continued employment and that no sufficient evidence of duress to take the test was shown.

On appeal, appellant presents the following questions: 1. Whether an employer violates Maryland’s anti-polygraph law (Art. 100, Sec. 95) by requiring an employee to take a polygraph test under circumstances which reasonably indicate that the employee will be fired if he refuses to take the test without any express threat of termination? 2. Whether the court erred in holding as a matter of law that an employer does not make a demand to submit to a polygraph test conditioned on the continuation of the employment when he advises an employee that money has been stolen, that the employee is one of four people suspected of taking the money, that all four such people are taking polygraph tests, that only ⁶⁰ those four had access to the funds and that he wanted all such employees to take the test? 3. Whether the court erred in excluding evidence of the state of mind of the appellant concerning the likely consequences of any refusal to submit to a polygraph test? 1.

Appellant urges that when an employee, without an express threat, is requested by his employer to take a polygraph test, under circumstances which reasonably indicate that failure to take the test will result in dismissal, there is a violation of Md.Code Ann., Article 100, § 95, and, therefore, a cause of action for abusive discharge. 3 In Adler v. American Standard Corporation, 291 Md. 31 , 432 A.2d 464 (1981), the Court of Appeals considered whether the common law right to discharge employees at will should be modified. Recognizing, as a general rule, Maryland’s adherence to the common law principle, “that an employment contract of indefinite duration, that is, at will, can be legally terminated at the pleasure of either party at any time,” (citations omitted) Id. at 35 , 432 A.2d 464 , the Court 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.” Id. at 47 , 432 A.2d 464 . This conclusion was reached after taking into account the employee’s interest in job security, “particularly when continued employment is threatened not by genuine dissatisfaction with job performance”, Id. at 42 , 432 A.2d 464 , the employer’s interest in “being able to discharge an employee when it is beneficial to his business”, and socie ⁶¹ ty’s interest in “ensuring that its laws and important public policies are not contravened.” Id. It is society’s interest upon which primary focus is required.

The source of the “clear mandate of public policy” may be found in legislative enactments, prior judicial decisions and administrative regulations, or it may be undeclared, in which case, extreme care must be taken to insure that it is, in fact, the policy of the State. In any case, the public policy found must be “sufficiently clear to provide the basis for a tort or contract action for wrongful discharge.” Id. at 42 , 432 A.2d 464 . Appellant argues that the express terms of Art. 100, § 95 are a legislative expression of the public policy of the State, the contravention of which gives rise to a cause of action for abusive discharge. Section 95(b) provides: Test prohibited; exemption — An employer may not demand or require any applicant for employment or prospective employment or any employee to submit to or take a polygraph, lie detector or similar test or examination as a condition of employment or continued employment.

The prohibition of this section does not apply to the federal government or any agency thereof. Section 95(g) makes it a misdemeanor, subject to a fine of up to $100.00, to violate the statute. Being mindful of the definition of public policy adopted in Adler, supra, at 45 , 432 A.2d 464 (citing Md.— Nat’l Cap. P & P v. Wash.

Nat’l Arena, 282 Md. 588, 605 , 386 A.2d 1216 (1978): Public policy is that principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against the public good, which may be termed, as it sometimes has been, the policy of the law, or public policy in relation to the administration of the law, (citation omitted) as well as the admonition of the Supreme Court: The truth is that the theory of public policy embodies a doctrine of vague and variable quality, and, unless deduc ⁶² ible in the given circumstances from constitutional or statutory provisions, should be accepted as the basis of a judicial determination, if at all, only with the utmost circumspection. The public policy of one generation may not, under changed conditions be the public policy of another, Patton v. United, 281 U.S. 276, 306 , 50 S.Ct. 253, 261 , 74 L.Ed. 854 (1930), we conclude that Article 100, § 95 is a “clear mandate of public policy”, that employers may not demand or require employees or prospective employees to take polygraph examinations as a condition of employment or continued employment, on which an action for abusive discharge may be based. Moniodis, et al. v. Cook, et al., 64 Md.App. 1 , 494 A.2d 212 (1985). This policy is clearly and unequivocally expressed in the statutory prohibition and its violation is punishable by criminal sanction.

Our conclusion is supported by cases from other jurisdictions which have considered the question. Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28 , 386 A.2d 119 (Pa.1978). Geary v. United States Steel Corp., 456 Pa. 171 , 319 A.2d 174 (1974), Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363 (3rd Cir.1979), Polsky v. Radio Shack, 666 F.2d 824 (3rd Cir.1981), Lally v. Copygraphics, 85 N.J. 668 , 428 A.2d 1317 (1981), State v. Comm. Distributors, Inc., 64 N.J. 479 , 317 A.2d 697 (1974).

Although they acknowledge that § 95 does not provide a remedy for all of the conduct prohibited, appellees, nevertheless, argue that the remedy it provides is exclusive. We reject that argument. See Moniodis, supra. In White v. Prince George’s Co., 282 Md. 641 , 387 A.2d 260 (1978), on which appellees rely, in addition to the “ordinary action at law or in equity” available to the appellant, there existed a “comprehensive remedial scheme”.

It was in that context that the Court observed: Where there exists a special statutory remedy for the resolution of a particular matter, as well as an ordinary action of law or in equity, whether the special statutory ⁶³ remedy is exclusive, and preempts resort to the ordinary civil action, is basically a question of legislative intent. ... [A]bsent a legislative intention to the contrary, it will usually be deemed that the Legislature intended the special statutory remedy to be exclusive, (citations omitted) Id. at 649 , 387 A.2d 260 . The special statutory remedy contained in § 95 is far from comprehensive. Additionally, it does not apply to a class of persons protected by its provisions. While the Attorney General is authorized to prosecute civil suits arising under the section and referred to him by the Commissioner of Labor, § 95(f), he is not required to prosecute them; furthermore, the cases as to which authorization to prosecute is given are limited to those involving an “applicant for employment”. § 95(d) & (e), Moniodis, supra.

We turn next to the question whether a violation of Article 100, § 95 requires an express threat or statement by the employer that the employee will be discharged if he or she does not take the examination. A ruling on a motion for directed verdict requires the trial judge to consider the evidence presented, together with all reasonable and legitimate inferences deducible therefrom, in the light most favorable to the party against whom the motion is made. Gleason v. Jack Alan Enterprises, Inc. 36 Md.App. 562 , 374 A.2d 408 (1977). If but one inference with regard to the issue involved can be drawn, the moving party is entitled to have his motion granted.

Smack v. Jackson, 238 Md. 35 , 207 A.2d 511 (1965). Where, however, there is any legally relevant or competent evidence, no matter how slight, from which a rational mind could infer a fact in issue, then the judge, because the motion should have been denied, invades the province of the jury by granting the motion for directed verdict. Impala Platinum, Ltd. v. Impala Sales (U.S.A.), Inc., 283 Md. 296 , 389 A.2d 887 (1978), Beahm v. Shortall, 279 Md. 321 , 368 ⁶⁴ A.2d 1005 (1977), Ralph Pritts & Sons, Inc. v. Butler, 43 Md.App. 192 , 403 A.2d 830 (1979). See DiGrazia v. County Exec. for Montgomery County, 288 Md. 437 , 418 A.2d 1191 (1980) (when motive or intent is at issue, generally, motion for summary judgment should not be granted). 4 With these principles in mind, we proceed to consider the facts presented at trial.

On direct examination, appellant testified as follows: One morning, when he came to work, he was informed by the owner of the restaurant that $4,000.00 was missing from the front cashbox, an area to which he claimed no access. He was asked to go to the police station and answer questions, which he did. The owner mentioned the missing money periodically and, eventually, asked appellant to take a lie detector test. Although the owner said that he suspected that the bar manager took the money, he also said that he suspected that four people had access to the cash and that one of those four had to have taken it; 5 appellant was one of the four.

Subsequently, the owner made arrangements for the administration of the test and informed appellant as to the time and place for its administration. Appellant took the test on his day off. On the following day, he was fired. In response to the ⁶⁵ question, “Why did you take the test?”, 6 appellant testified, “Because I was requested to take the, take the test.” and “I had nothing to hide because I was innocent.

And If I didn’t take it ... if I didn’t take it it would be an admission, in my interpretation, of guilt.” On cross-examination appellant admitted that he signed a form containing the following language: “I hereby voluntarily request that I be examined by the Polygraph (Detection of Deception) Technique. I understand and agree that the results of the polygraph examination may be made available to the proper authorities”. He also admitted that he was never told, prior to the administration of the test, that he had to take the test or that he would be fired if he refused to take it. Appellant denied having requested the lie detector test.

Focusing on the use of the terms “demand” and “require”, and arguing that § 95 does not prohibit all lie detector tests, appellees contend that “there was no legally sufficient evidence that they either demanded or required appellant to take the test as a condition of his continued employment.” In fact, appellees continue, the evidence was conclusive that the test was completely voluntary, as evidenced by the “consent form” signed by appellant. On the other hand, appellant, conceding that no express threat to terminate employment was made, views the judge’s ruling and appellees’ argument as depriving § 95 of its functional usefulness as “a protective measure for employees”. He