Wholey v. Sears Roebuck6/19/2002
y 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.
` ublic 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 " his search for a specific legal duty is no mere formality.
Rather it limits judicial 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.
Dissenting Opinion by Eldridge, J., in which Bell, C.J., joins.
In my view, the decision today and Judge Battaglia's plurality opinion are inconsistent with this Court's holding in Molesworth v. Brandon, 341 Md. 621, 672 A.2d 608 (1996). In Molesworth, a former employee of a veterinarian brought a common law abusive discharge action against the veterinarian. The former employee claimed that her employment had been terminated because of her gender. This Court, in an opinion by Chief Judge Murphy, held that Maryland Code (1957, 1998 Repl. Vol.), Art. 49B, ยงยง 14 and 15, prohibiting employers from discriminating based on gender, provided "a sufficiently clear mandate of public policy to support Molesworth's common law wrongful discharge cause of action," even though the defendant veterinarian was not an employer within the meaning of the statutory provisions. Molesworth v. Brandon, supra, 341 Md. at 630-632, 672 A.2d at 613-614.
Similarly, the enactments by the General Assembly protecting various categories of "employee-whistleblowers," cited in the plurality opinion, furnish "a sufficiently clear mandate of public policy to support" the petitioner Wholey's cause of action.
In addition, I continue to disagree with the extremely narrow scope which majorities of this Court have repeatedly accorded the tort of abusive discharge. This Court unanimously recognized the tort of "abusive discharge" in Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981). Subsequently, however, the Court has so limited the tort action that numerous discharges from employment, which are abusive and clearly contrary to public policy as a matter of common sense, are held to be beyond the scope of the tort. It is illogical to recognize a tort action and then hold that virtually nothing falls within the action. See Caldor v. Bowden, 330 Md. 632, 677-678, 625 A.2d 959, 980-981 (1993) (Eldridge, J., joined by Bell, J., dissenting); Watson v. Peoples Ins. Co., 322 Md. 467, 487-493, 588 A.2d 760, 770-772 (1991) (Eldridge, J., dissenting in part); Chappell v. So
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