Weathersby v. Kentucky Fried Chicken National Management Co.

DAVIS, Judge. This case involves the circumstances surrounding the decision of Serita J. Weathersby, appellant, to resign from her employment with appellee, Kentucky Fried Chicken Management Company (KFC). After her resignation, appellant brought suit against KFC and its agent, appellee Lee Watts (Watts). Watts was appellant’s immediate supervisor at KFC.

In an eight count complaint, appellant alleged the following: Count I — Wrongful Suspension and Demotion; Count II — Sexual Harassment and Reprisal; Count III — Discrimination on Account of Handicap; Count IV — Racial and Sexual Discrimination; Count V — Wrongful Constructive Discharge; Count VI — Breach of Employment Contract; Count VII — Defamation; and Count VIII — Intentional Infliction of Emotional Distress. Prior to trial, appellant withdrew the sexual harassment element of Count II, Count IV, sexual and handicap discrimination, and Count VII, defamation. Appellees moved for summary judgment on the remaining counts. The trial court having granted the motions as to Counts I and V, wrongful suspension and wrongful constructive discharge, trial proceeded on the counts for reprisal, racial discrimination, breach of employment contract, and intentional infliction of emotional distress. ⁵³⁷ At the conclusion of appellant’s case, appellees moved for judgment on the five remaining counts and the trial court heard additional argument on the wrongful constructive discharge cause of action.

The lower court granted the motion for judgment as to the reprisal claim, and denied the motions as to the remaining counts. At the close of their case, appellees renewed their motions for judgment; the trial court reserved ruling on the motions and submitted the issues to the jury. The jury returned verdicts in favor of appellees on the breach of contract and race discrimination count, and in favor of appellant on the intentional infliction of emotional distress claim, awarding her $145,000 in damages. The trial court granted appellees’ motion for judgment notwithstanding the verdict as to the intentional infliction of emotional distress count.

On appeal, appellant presents the following questions for our review: 1. Whether the Circuit Court erred by dismissing appellant’s claims of public policy torts by appellees in disciplining her for objecting to an illegal polygraph test. 2. Whether the Circuit Court erred by dismissing appellant’s claim that appellee Kentucky Fried Chicken violated the Montgomery County Human Relations Law, Montgomery County Code, § 27-19, by disciplining her in reprisal because she complained about appellee Watts’ romantic relationship with Ms. Miller. 3. Whether the Circuit Court abused its discretion by overturning the jury verdict for appellant on her claim of intentional infliction of emotional distress.

FACTUAL BACKGROUND Given the nature of the issues presented on appeal, appellant’s version of the facts relating to her employment and eventual resignation shall be set forth in some detail. In 1979 appellant began her employment with KFC. In October 1987, at her request, appellant was transferred ⁵³⁸ from her position as area manager for KFC’s franchise services to training store manager at a store on University Boulevard in Wheaton, Maryland. From October 1987 to February 1988, appellant’s immediate supervisor was appellee Lee Watts.

Prior to appellant’s transfer in October 1987, new “interchangeable core” locks were installed on the doors of the Wheaton store. An interchangeable core lock, which is operated by a key, is located in the middle of an existing lock and may be removed and replaced as necessary. Once replaced, a new key is needed to operate the core lock. Under KFC policy, core locks were to be changed by KFC area managers whenever there was a management change in the store.

On October 27, 1987, Watts, an area manager, had the core locks changed. After this change, Watts informed appellant that the locks were under his control and she should make no effort to have the locks changed. The locks were not changed after October 27, despite further changes in management at the store. Also in October 1987, Watts developed a romantic relationship with an assistant manager at the Wheaton Store.

Others at the store were aware of, and commented about, this relationship. Under KFC’s Human Resources Manual, romantic relationships between KFC managers and subordinates were discouraged, were to be reported to higher authorities, and required movement of one of the parties to another store. In November 1987, appellant informed Watts that she believed he was having a romantic relationship in contravention of KFC’s policies. She informed Watts that she believed the relationship was having a detrimental effect on the operation of the store.

According to appellant, after she registered her complaint about the relationship, Watts began harassing her. This harassment included, among other things, falsely stating that customer complaints were made against appellant forcing appellant to work from December 2 to December 24 without a day off and assigning sub par assistant managers to her. ⁵³⁹ On January 14, 1988, there was a theft from the Wheaton store safe. There was no indication of forcible entry. Appellant reported the theft to Watts.

On January 20, appellant was informed that she was scheduled for a polygraph examination with respect to the theft. Although appellant objected to the test, Dave Davis, KFC Operations Manager for the Baltimore-Washington region, insisted that she submit to the polygraph examination. Appellant took the polygraph test on January 25. Davis demanded that appellant take another polygraph test after appellant informed the polygraph examiner that Watts had not changed the locks on the doors of the Wheaton Store since October 1987 despite managerial changes, and that Watts himself had keys to the core locks at the store.

On January 26, 1988, appellant asked Watts if he had informed the polygraph examiner that he (Watts) had not changed the store’s locks since October 1987, and why he had not scheduled a polygraph examination for himself. At a meeting on January 27 between appellant, Watts, and Peter Davis, KFC’s regional security director, appellant explained to Davis that Watts knew the locks had not been changed since October 1987 and the time of the theft in January 1988. She also informed Davis of Watts’ relationship with the assistant store manager. On or about January 28, Watts confiscated appellant’s store keys and, without explanation, suspended her for ten days without pay “pending an investigation” of the theft.

On February 7, 1988, appellant was informed that, due to “serious misconduct,” she was being demoted to assistant manager. As a result of this demotion, appellant’s salary was reduced by $11,000. In addition, appellant was assigned to a different store managed by someone appellant bad once supervised. On February 9, appellant sought psychiatric treatment as a result of the events which transpired at her workplace.

The doctor she consulted certified that she was unable to work. On February 11, appellant was again certified as ⁵⁴⁰ unable to return to work. While she was unable to work, appellant requested payment of Short Term Disability (STD) benefits, which KFC refused to pay. Under KFC’s employment manual, managers, after 90 days or more of continuous service, are entitled to STD pay for six months upon notice of excused absence due to illness.

A doctor’s supporting statement certifying an inability to work is all that is required. Despite having been given the required certification, KFC required appellant to obtain a second opinion and made payment of benefits to her contingent upon obtaining same. There is no written requirement under KFC policy that a second opinion be obtained as to inability to work to be entitled to STD benefits. Accordingly, appellant objected to submitting to a second psychiatric examination.

On March 28, appellant was hospitalized at the Psychiatric Institute of Montgomery County. On April 12, she was diagnosed as being in a state of major depression, with psychotic features, and as having a borderline personality disorder. On or about May 8, 1988, appellant was discharged from the Institute. In the meantime, appellee KFC continued to refuse to pay STD benefits unless appellant would submit to an examination by a psychiatrist of its choosing.

In October 1988, appellant finally submitted to an examination by a psychiatrist selected by KFC. The doctor confirmed that appellant had been unable to work since February 1988. In December 1988, KFC paid appellant STD benefits, though at an assistant manager’s rate and for only part of appellant’s period of incapacitation. By letter dated January, 15, 1989, appellant resigned from her employment with KFC.

Appellant’s suit followed, and she appeals from the decisions of the circuit court. I. WRONGFUL DISCHARGE Considering first the issue of whether the lower court erred in dismissing appellant’s wrongful discharge ⁵⁴¹ claim, we are called upon to revisit our holding in Moniodis v. Cook, 64 Md.App. 1 , 494 A.2d 212 (1985), in light of a modification of Md.Ann. Code art. 100, § 95 (1985, 1989 Cum.Supp.), which prohibits the use of a lie detector test as a condition of employment. Appellant argues that the trial court should not have dismissed her claims for wrongful suspension and wrongful constructive discharge. Appellant contends that although § 95(b), (d), (e), and (f) provide administrative remedies for violation of the statute, the section does not provide the exclusive remedy for wrongful discharge, thereby precluding her private cause of action.

We do not agree. In Adler v. American Standard Corp., 291 Md. 31 , 432 A.2d 464 (1981), the Court of Appeals recognized for the first time an employee’s common law cause of action for the tort of wrongful discharge as an exception to the general rule that an at-will employee may legally be terminated at any time and for any reason. Under Adler , damages for wrongful discharge are recoverable whenever the discharge violates some “clear mandate of public policy.” Id. at 43 , 432 A.2d 464 . The Court noted that such a mandate may come in many forms, including legislative enactments, prior judicial decisions or administrative regulations.

Id. at 45 , 432 A.2d 464 . This Court, in Moniodis, supra, recognized that the express legislative prohibition contained in § 95(b) against requiring applicants for employment to submit to polygraph examination satisfied the Adler “clear mandate” requirement necessary for a wrongful discharge claim in Maryland. Id. at 10, 494 A.2d 212 ; See also Townsend v. L.W.M. Management, Inc., 64 Md.App. 55 , 494 A.2d 239 , cert. denied 304 Md. 300 , 498 A.2d 1186 (1985). In Moniodis , employees of Rite-Aid of Maryland, Inc. (Rite-Aid) alleged that Rite-Aid, and certain Rite-Aid officers, required groups of Rite-Aid employees, to submit to polygraph examinations, in violation of § 95 because of inventory problems experienced at certain Rite-Aid stores.

The jury returned a verdict in favor of the employees. ⁵⁴² Rite-Aid argued on appeal that the polygraph statute should be interpreted to preclude the common law wrongful discharge action because the statute included a civil remedy for the employees whose rights had been violated. At that time, § 95 provided a civil remedy only for applicants for employment, not for established employees. Thus we rejected Rite-Aid’s argument. Making the distinction, we said: We seriously doubt that a statutory remedy was indeed available to the appellees in the case at hand.

The polygraph statute authorized the Attorney General to prosecute cases referred by the Commissioner of Labor and Industry, who was in turn authorized to institute proceedings only on behalf of any aggrieved applicant for employment, rather than established employees____ Therefore, we conclude that § 95 does not preclude the appellees’ common law action. Id. at 12, 494 A.2d 212 . (Footnote and citations omitted, emphasis in original). Since we decided the Moniodis case, § 95 has been amended to include employees (as opposed to applicants) and now reads in pertinent part: (b) 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____ (d) Investigation upon written complaint. — Upon written complaint by an applicant for employment or an employee of an alleged violation of this subtitle, the Commissioner of Labor and Industry may cause an investigation to be made as to the existence of the alleged violation. (e) Mediation and conciliation; injunctive or other relief. — If the Commissioner determines that a violation exists, he is authorized to endeavor to resolve any issue ⁵⁴³ involved under said violation by informal methods of mediation and conciliation, or he may institute, on behalf of any aggrieved applicant for employment or an employee, action in any court of competent jurisdiction in the subdivision in which the violation occurred seeking injunctive relief or other relief including money damages, resulting from the violation under this subtitle. (f) Duty of Attorney General. — The Attorney General is authorized to prosecute all civil cases arising hereunder which are referred to him by the Commissioner for that purpose. (g) Penalty. — Any employer who violates the provisions of this subtitle is guilty of a misdemeanor and subject to a fine not to exceed $100.

Md.Ann.Code art. 100, § 95. (Emphasis added). Notwithstanding the amendment to the statute, appellant looks to Moniodis for support. In particular, appellant makes reference to the fact that a separate action, in which the Moniodis Rite-Aid employees did not fully participate, 1 was brought by the Attorney General under the statute on behalf of other Rite-Aid employees, and that the trial court recognized that the employees had a common law wrongful discharge cause of action under the statute.

In addition, appellant urges that the case law since the statute was amended proceeds on an “assumption” that, notwithstanding the expanded scope of the statute, a private cause of action continues to be recognized for employees. Appellant cites for this proposition People’s Security Life v. Watson, 81 Md.App. 420, 428 , 568 A.2d 835 (1990) cert. granted 319 Md. 633 , 574 A.2d 312 and Glezos v. Amalfi Ristorante Italiano, Inc., 651 F.Supp. 1271, 1276 (1987). These arguments are not persuasive. As to appellant’s first contention, Judge Weant, speaking for this Court in Moniodis , specifically noted that the ⁵⁴⁴ question of whether the Attorney General could rightfully represent the employees (as opposed to applicants) under the statute was never reached by the trial court because the case was settled.

Moniodis at 12, n. 4, 494 A.2d 212 . Therefore, contrary to appellant’s assertion, there is no indication that the lower court approved the representation of employees in a wrongful discharge action brought under the statute. Watson and Glezos lend no support to appellant’s contention. Watson made clear that, at the time Moniodis was decided, § 95 was limited to providing a remedy for applicants for employment, as opposed to employees.

The court in Glezos specifically noted, citing Moniodis , that no statutory remedy was available for the employee plaintiffs in that case and they could, therefore, proceed with a common law action for constructive discharge. Glezos at 1276 . Finally, appellant disputes the applicability of Makovi v. Sherwin-Williams Co., 316 Md. 603 , 561 A.2d 179 (1989), upon which appellees, and the trial court, principally relied. In Makovi , the employee brought a wrongful discharge action against her employer, alleging she was discharged because of her pregnancy in contravention of Md.Ann.Code (1957, 1986 Repl.Vol.), art. 49B, §§ 14-18 and Title VII of the 1964 Civil Rights Acts §§ 701-718, as amended 42 U.S.C.A. §§ 2000e to 2000e-17.

We affirmed the trial court’s grant of summary judgment in favor of the employer at 75 Md.App. 58 , 540 A.2d 494 (1988). The Court of Appeals also affirmed, holding that the tort of abusive discharge was limited to remedying only those discharges in violation of a clear mandate of public policy that otherwise would not be vindicated by a civil remedy. Makovi, 316 Md. at 605 , 561 A.2d 179 . In so holding, the Court found that the remedies available to the employee were sufficient to vindicate her rights.

Appellant seeks to distinguish Makovi from the present case by arguing that art. 100, § 95 does not contain a comprehensive scheme akin to that contained in the State ⁵⁴⁵ and federal anti-discrimination statutes. 2 In particular, appellant argues that the statute does not provide any administrative procedure, make an administrative complaint the exclusive remedy for violations, or otherwise provide a “specific” remedy for violations of the statute. This argument is unpersuasive. Art. 49B §§ 3, 4, 9, 10, 11, and 12 embody the framework for enforcement of Maryland’s anti-discrimination legislation. Under these sections, the Commission on Human Relations has the power to hold an investigative hearing for fact finding, to bring civil actions on behalf of complainants for injunctive relief, to receive and issue complaints alleging discrimination, to conduct investigations based on complaints received, to conduct hearings in cases of failure to reach agreement for the elimination of acts of discrimination, and to institute litigation to enforce compliance with the article.

Similarly, art. 100, § 95(d), (e), (f), and (g) provide a comprehensive scheme for remedying a violation of the statute. These sections empower the Commissioner of Labor and Industry to receive written complaints alleging violations of the statute and to investigate them. In addition, once he determines a violation exists, the Commissioner may resolve the issue through alternative dispute resolution methods or by instituting an action for injunctive or other relief, including money damages. Furthermore, the Commissioner may refer cases to the Attorney General, who is authorized to prosecute all civil cases arising under § 95.

In Makovi at 612-13, 561 A.2d 179 , the Court of Appeals quoted with approval Judge (now Chief Judge) Wilner’s analysis of Adler at 75 Md.App. 58, 64 , 540 A.2d 494 : ⁵⁴⁶ It does seem clear ... that the Court was focusing on what it perceived to be a void in the law — a discharge not expressly and directly precluded by some specific statute but which nevertheless contravened some other general statement of public policy. If there were already an adequate alternative remedy in existence, the legitimate interest of the employee that the Court identified as being deserving of recognition would indeed have attained that recognition, and the newly created common law remedy would