Wholey v. Roebuck

Concurring opinion by

RAKER, Judge.,

in which WILNER, Judge., joins.

I join in the judgment of the plurality opinion affmning the judgment of the Court of Special Appeals. Unlike the plurality, I would affirm on the basis of the well-reasoned opinion of the Court of Special Appeals.

The plurality holds that “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.” See ante at 43. The case before us, however, involves an *72employee reporting to his supervisors, not to law enforcement officials. There is no clear public policy mandate that protects workers who report suspected crimes to their superiors. Therefore, I would not reach out to create a new exception to the at-will employment doctrine in a case not ripe for such decision. Inasmuch as the plaintiff herein has not stated facts to justify any exception to the at-will employment doctrine, this Court should not introduce expansive public policy dicta into the opinion. The Court pays lip service to the notion that we should proceed cautiously when called upon to declare public policy absent some legislative or judicial expression on the subject. See ante at 71. Nonetheless, the Court creates a tort cause of action in a case where the facts alleged by the plaintiff do not constitute a cause of action. See ante at 71.

Even if it were necessary to touch on the question addressed by the plurality, I would reach a different conclusion. This Court has recognized an exception to the at-will employment doctrine where the discharge of an employee violates a clear mandate of public policy. Adler v. American Standard Corp., 291 Md. 31, 40, 432 A.2d 464, 469 (1981). This exception, however, is a narrow one. Maryland courts have found a violation of a clear mandate of public policy only in limited circumstances: where an employee has been fired for refusing to violate the law or the legal rights of a third party, see Kessler v. Equity Management, Inc., 82 Md.App. 577, 572 A.2d 1144 (1990) (holding that firing an at-will employee for refusing to commit the tort of invasion of privacy constitutes wrongful discharge), and where an employee has been terminated for exercising a specific legal right or duty. See Watson v. Peoples Sec. Life Ins. Co., 322 Md. 467, 588 A.2d 760 (1991) (holding that is contrary to a clear mandate of public policy for an employer to discharge an employee for seeking legal redress against a co-worker for sexual harassment); Ewing v. Koppers Co., 312 Md. 45, 537 A.2d 1173 (1988) (holding that discharging an employee for filing a worker’s compensation claim contravenes clear mandate of public policy); see also Milton v. ITT Research Inst., 138 F.3d 519 (4th Cir.1998); *73Adler v. American Standard Corp., 830 F.2d 1303 (4th Cir.1987).

In the case sub judice, the Court of Special Appeals found that petitioner’s claim did not fit under either of these categoi'ies, and that petitioner was therefore precluded from maintaining a cause of action for wrongful discharge. Sears v. Wholey, 139 Md.App. 642, 779 A.2d 408 (2001). 1 agree with this conclusion.

Even assuming that this Court would recognize an exception to the at-will employment doctrine in a case where an employee is required to report a crime to the authorities and is then discharged by an employer for doing so, the plurality has adopted a much broader exception. The plurality states that “[cjourts must ... use care in creating new public policy ... . ” Ante at 52, 65 (holding that “[t]his court now adopts a public policy mandate for employees who report criminal activity to the appropriate law enforcement authorities....”). Ironically, it is lack of caution or care that is the Achilles heel of the plurality opinion. In creating exceptions to the at-will employment doctrine, courts do not “create new public policy.” Rather, we look to a clear mandate of public policy that necessitates the adoption of an exception to the at-will employment doctrine. See Makovi v. Sherwin-Williams Co., 316 Md. 603, 561 A.2d 179 (1989). This Court should not be creating public policy to justify an exception to the at will employment doctrine. See Magee v. O’Neill, 19 S.C. 170, 185 (S.C.1883) (stating that “[t]he subjects in which the court undertakes to make the law by mere declaration of public policy should not be increased in number without the clearest reasons and the most pressing necessity.”). This is particularly true in a case where, even if the tort did exist, the facts do not fit the tort.

The plurality’s opinion is also out of synch with our precedent regarding wrongful discharge. We have stated that this Court is not confined to legislative enactments, prior judicial decisions or administrative regulations when determining the public policy of this State. Adler, 291 Md. at 45, 432 A.2d at *74472. Recognition of an otherwise undeclared public policy, however, involves “the application of a very nebulous concept to the facts of a given case.” Id. Therefore, “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.” See Molesworth v. Brandon, 341 Md. 621, 630, 672 A.2d 608, 613 (1996) (quoting Watson v. Peoples Ins. Co., 322 Md. 467, 588 A.2d 760 (1991)); Felder v. Butler, 292 Md. 174, 184, 438 A.2d 494, 499 (1981) (noting that “[i]n determining the public policy of the State, courts consider, as a primary source, statutory or constitutional provisions.”).

The plurality opinion points to Article 27, § 762 in an effort to find statutory support for its conclusion that there is a clear public policy mandate protecting employees who report suspected criminal activity to law enforcement officials. See ante at 58. That statute, however, does not place any duty upon an employee and is not an expression of clearly mandated public policy that would support the exception created today. Moreover, the .plurality’s reading of the statute expands the class of people protected under § 762, which only protects a “victim or witness” who gives testimony or reports a crime.19 Under the plurality opinion, the protection of the statute applies to any employee who reports suspected criminal activity to the appropriate law enforcement officials, irrespective of whether there is a duty to report, or whether the employee was a testifying victim or witness.

Many courts have commented on dangers inherent in judicial involvement in the formation of public policy. Judge Levine, writing for Court in Maryland-Nat’l Capital Park and Planning Comm’n v. Washington Nat’l Arena, 282 Md. 588, 386 A.2d 1216 (1978), discussed the meaning of public policy as follows:

*75“Nearly 150 years ago Lord Truro set forth what has become the classical formulation of the public policy doctrine — that to which we adhere in Maryland:
‘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.’
But beyond this relatively indeterminate description of the doctrine, jurists to this day have been unable to fashion a truly workable definition 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 social 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.
‘[Pjublic policy ... is but a shifting and variable notion appealed to only when no other argument is available, and which, if relied upon today, may be utterly repudiated tomorrow.’ ”

Id. at 605-606, 386 A.2d at 1226 (citations omitted). Thus, in Adler, we stated:

“We have always been aware ... that recognition or an otherwise undeclared public policy as a basis of a judicial decision involves the application of a very nebulous concept to the facts of a given case, and that declaration of public policy is normally the function of the legislative branch. We have been consistently reluctant, for example, to strike down voluntary contractual arrangements on public policy grounds.”

Adler, 291 Md. at 45, 432 A.2d at 472 (citations omitted). See also Milton, 138 F.3d at 523 (noting that “[tjhis search for a specific legal duty is no mere formality. Rather it limits *76judicial forays into the wilderness of discerning ‘public policy’ without clear direction from a legislative or regulatory search.”).

Accordingly, I would decide the case before us and leave for another day the consideration of whether there exists a clear mandate of public policy that would justify an exception in other circumstances.

Judge WILNER has authorized me to state that he joins in the views expressed herein.

. Section 762(a) reads as follows:

"A person may not intentionally harm or injure any person or damage or destroy any property with the intent of retaliating against a victim or witness for giving testimony in an official proceeding or for reporting a crime or delinquent act.”