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Wholey v. Sears Roebuck6/19/2002
remedy to exist in the tort of wrongful discharge because of the clearly articulated policy mandate provided by the Legislature with respect to the filing of workers' compensation claims. Finch, 322 Md. at 202, 586 A.2d at 1278; Ewing, 312 Md. at 50, 537 A.2d at 1175.
Constitutional provisions and principles also provide clear public policy mandates, under which a termination may be grounds for a wrongful discharge claim. In DeBleecker v. Montgomery County, 292 Md. 498, 438 A.2d 1348 (1982), we held that the common law rule that an at-will public employee may be discharged at any time was inapplicable if the discharge was made as a result of an employee's exercise of his constitutionally protected First Amendment rights. Id. at 506, 438 A.2d at 1352-53. Similarly, our colleagues in the Court of Special Appeals recognized a public policy mandate based on a citizen's right to privacy in Kessler v. Equity Management, Inc., 82 Md. App. 577, 572 A.2d 1144 (1990). Kessler, a rental agent for an apartment complex, was fired after she refused to enter the apartments of tenants whose rent was overdue to "snoop" through private papers in search of information regarding their place of employment, wages, etc. Id. at 582, 572 A.2d at 1147. The intermediate appellate court held that there existed both statutory and constitutional protections against such invasions of privacy; as such, had Kessler carried out the instructions of her employer, she could have been subject to civil liability. See id. at 587, 572 A.2d at 1149; see also Widgeon v. Eastern Shore Hosp. Ctr., 300 Md. 520, 529-30, 479 A.2d 921, 925-26 (1984)(explaining that Maryland recognizes a common law civil cause of action for conduct violative of state constitutional rights). Therefore, firing a person who refuses to commit an unlawful act - an act which violates another's constitutionally or statutorily protected legal rights - may contravene public policy. See Kessler, 82 Md. App. at 590, 572 A.2d at 1151; see also Adler, 291 Md. at 39-41, 432 A.2d at 469-70.
C. Reporting of Co-worker's Suspected Criminal Activity - "Whistleblower" Protection
Discussing, as we have, our prior bases for defining a public policy mandate under which a wrongful discharge claim may be pursued is intended not only to provide a historical development of this tort, but also to help demonstrate long-standing prerequisites for recognition of a public policy exception to the at-will employment doctrine, and hence, the propriety of adopting a policy mandate similar to that which is sought by the petitioner today, but for which he is not eligible. We explain.
First, no statutory impediment to the tort cause of action sought by the petitioner exists because the Legislature, quite simply, has declined to provide a statutory remedy for private employee-whistleblowers. Therefore, the purpose for recognizing the wrongful discharge tort - i.e. to provide a remedy for an otherwise unremedied violation of public policy - has maintained its vitality.
Second, and most significantly, an express statutory mandate provides a discernible foundation for the public policy exception sought by the petitioner; namely, the Legislature has created a misdemeanor offense for a person who harms or injures another's person or property in retaliation for reporting a crime. See Md. Code, Art. 27, ยง762 (1957, 1996 Repl. Vol., 2001 Supp.). Section 762 specifically provides:
(a) Prohibited acts. -- 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.
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