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Wholey v. Sears Roebuck6/19/2002
ng in employment decisions. Id. at 630-31, 672 A.2d at 613; see also id. at 632, 672 A.2d at 614 (stating that "where a public policy is as pervasive as Maryland's policy against sex discrimination, we presume the legislature does not intend to allow violations of that policy, absent some indication of a contrary intent"). Similarly, in the case sub judice, we use the plain language of Article 27, Section 762 to discern that the Legislature intended to preclude retaliation against those who report criminal activity.
That we so hold, however, does not mean that the petitioner has a successful claim for wrongful discharge. To qualify for the public policy exception to at-will employment, the employee must report the suspected criminal activity to the appropriate law enforcement or judicial official, not merely investigate suspected wrong-doing and discuss that investigation with co-employees or supervisors. See Faust v. Ryder Comm. Leasing & Servs., 954 S.W.2d 383, 391 (Mo. Ct. App. 1997)(recognizing that a wrongful discharge claim may exist where there is a clear mandate of public policy and where the "`whistleblowing' actually occurred in that [the employee] reported the alleged criminal wrongdoing to the proper authorities")(emphasis added).
In the limited times that the Legislature has enacted whistle-blower protection to protect private employees, the protection is only valid when the employee/whistle-blower reports the suspect activity externally. For example, Section 5-604(b) of the Labor and Employment Article protects an employee who files a complaint or brings an action for violations of the Occupational Safety and Health title by his or her employer. Maryland's anti-discrimination laws protect private employees who have opposed any unlawful discriminatory practice in which the employer engages, or reported or participated in an investigation or proceeding concerning the employer's discriminatory practices. See Md. Code, Art. 49b, ยง16(f). Similarly, with respect to Article 27, Section 762, the Legislature created a clear and unmistakable prohibition against retaliating against a person who reports criminal activity, externally, to the appropriate law enforcement authorities. We believe a corresponding common law cause of action must also require external reporting to the appropriate law enforcement authorities.
The petitioner argues that his employment as an Anne Arundel County Sheriff's Deputy should affect the duties and obligations he undertook as a security officer at Sears; i.e., he was not merely carrying out his duties as a security officer in investigating employee theft at Sears, but rather he also had a duty to investigate criminal acts as a sworn deputy with the Sheriff's Office. As the Court of Special Appeals correctly observed, however,
[The petitioner] conceded . . . that he was acting at all times relevant to his case as an employee of Sears, that his investigation of the store manager was outside of his duties as a sheriff's deputy, and that he never had probable cause to suspect that the store manager had committed a crime, so as to trigger his duties as a deputy sheriff. Therefore, any legal duties that Wholey may have had in his role as a deputy sheriff were not implicated by his investigation of the store manager. Wholey, 139 Md. App. at 662-63 n.7, 779 A.2d at 420 n.7.
Granted, one may have a viable claim of wrongful discharge if terminated for acting pursuant to a legal duty when the employee's failure to perform that duty could result in potential liability. See Thompson v. Memorial Hosp., 925 F.Supp. 400, 407-08 (D. Md. 1996)(finding that the legal duty to report the misadministration of radiation belonged to the hospi
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