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concluding that because the award is both a form of compensation and a deterrent, a showing of prejudice is not a prerequisite
Summary of this case from In re Delphi CorporationOpinion
CIVIL NO. L-98-2173.
March 20, 2000
MEMORANDUM
Before the Court are Defendants' Motions for Summary Judgment, Plaintiff's Motion for Summary Judgment, and Plaintiff's Motion for an Order to Show Cause. Because the parties have thoroughly briefed the issues, the Court will dispense with a hearing. (See Local Rule 105.6 (D. Md. 1999)). For the following reasons, the Court shall, by separate Order, (i) DENY the plaintiff's Motion for an Order to Show Cause, (ii) GRANT in part and DENY in part the plaintiff's Motion for Summary Judgment, and (iii) GRANT in part and DENY in part the defendants' Motions for Summary Judgment.
I. Background
This dispute arises out of the termination of Plaintiff Kathy Cooper's employment with Defendant Harbour Inns, Inc. ("Harbour"). Harbour Inns runs a geriatric nursing home located at 1213 South Light Street in Baltimore. Ms. Cooper was employed at the Harbour Inns facility beginning in 1982, first as a geriatric nursing assistant, and then later as a certified medical technician.
During Ms. Cooper's tenure, the Light Street facility passed through several different owners. The current owners, who are among the defendants in this case, took control in the early-1990s.
Cooper usually worked the evening shift, from 3 to 11 P.M. Her supervisor during this time was Defendant Shirley Wright. As is clear from the record, Cooper and Wright did not get along. Cooper believed that Wright assigned her menial tasks and degraded her in front of her colleagues. (See Cooper Dep. at 80-90.) Cooper also stated Wright referred to her on at least two occasions as a "bitch." (Id. at 130, 155, 398.) Rosalee Turner, one of Cooper's co-workers, confirms that Wright was a demanding, and at times difficult, supervisor who appeared to have a dislike for Cooper. (See Turner Dep. at 6-7.)
On December 27, 1997, the tension between Wright and Cooper came to a head. Cooper was working her regular 3 to 11 P.M. shift that day. Wright, as usual, was her supervisor. Wright was notified that one of the licensed practical nurses (LPNs) for the overnight shift (11 P.M. to 7 A.M.) was ill and would not be able to work. Under these circumstances, Harbour Inns's policy is to have employees work overtime to cover for the absent employee. Wright consulted with Defendant Jocelyn Oliver, the Director of Nursing. Together, they determined that Cooper and another CMT could work overtime and cover for the absent LPN. (See Oliver and Wright Affs.)
An LPN is qualified to do more technical work than a CMT. Oliver and Wright believed that two CMTs could provide sufficient patient care to allow the other nursing staff to cover for the absent LPN.
Wright left Cooper a message asking Cooper to contact her. At approximately 9:45, Cooper came to see Wright at the nurses station. Wright was seated inside a wide circular desk. When Wright asked Cooper to work a double shift that night, Cooper refused, stating that it was too late and that she had already made plans. At that point, Cooper alleges that Wright pointed her fingernails in Cooper's face, called her "bitch," and said she was "tired of her." Wright remained seated. Cooper backed away from the desk and left. (See Cooper Dep. at 154-56.)
Although Plaintiff states that Wright's fingernails were ten inches long (see Pl. Mem. Opp. Summ. J. at 4), Cooper testified at deposition that the nails measured only three inches. (See Cooper Dep. at 154.) Rosalee Turner, Cooper's co-worker, stated that Wright had a habit of "shaking her fingernails in your face and trying to belittle you." (See Turner Dep. at 6.)
Wright then called Oliver to inform her of Cooper's refusal to work. Oliver instructed Wright to have Cooper leave for the evening and report to Oliver the following Monday. Wright then caught up with Cooper, who had returned to her duties, and told her to leave the building. During this exchange, Wright placed her hands on her hips, and stood quite close to Cooper. (See Cooper Dep. at 158.) Cooper backed away, retrieved her belongings, and proceeded to the basement to check out. Wright followed her closely. According to Rosalee Turner, who witnessed the incident, Wright remained within inches of Cooper as Cooper left the building.
On December 29, 1997, Cooper met with Oliver and Mary Gadd, Assistant Director of Nursing. Oliver suspended Cooper for five days. Cooper was to return to work on January 3, 1998. Cooper called in sick, however, on January 3, and also on several days thereafter. On January 7, 1998, Cooper spoke with Oliver and was granted a medical leave of absence until January 19, 1998. (See Harbour Mem. Supp. Summ. J. Ex. 7A; Oliver Aff.) Oliver instructed Cooper that she was to return to work on January 20, 1998, or to provide a doctor's slip stating she would need to extend her medical leave. On January 14, 1998, Cooper filed an assault complaint against Wright with the Baltimore City Police Department.
Cooper asserts that she took extended medical leave in 1991 and only had to provide one doctor's slip upon her return.
0n February 17, 1998, a hearing was held on the complaint, but the matter was not pursued further. The parties have provided no further information concerning the outcome of the criminal assault complaint.
The parties dispute what occurred next. According to the plaintiff, she had her brother, Larry Cooper, take a doctor's slip to Harbour Inns, stating she was unable to return to work. (See Cooper Dep. at 223.) Cooper also states she called Oliver on January 19 to tell her she was too ill to work. (See id. at 223-24.) Oliver and Harbour Inns state that they never received any slips or phone calls. Cooper did not return to work on or after January 20. Under Harbour Inns' employment policy, called "no-call, no-show," an employee who does not show up for work and who does not call in for two consecutive days is deemed to have voluntarily resigned. On January 23, 1998, Oliver terminated Cooper's employment. (See Harbour Inn's Mem. Supp. Summ. J. Ex. 7A.) Cooper next spoke with Oliver on February 3, 1998, at which time Oliver informed her that she had been terminated on January 23 for failing to explain her absence from work from January 20-22. (See Cooper Dep. at 236-37, 324.)
On February 13, 1998, Harbour Inns issued a final paycheck to Cooper for $1,553.64, representing the balance of her work performed and her accrued vacation pay. (See Burroughs Aff. and Ex. A.) Cooper cashed the check. According to Cooper and her brother, Larry Cooper delivered doctor's slips on several occasions during January and February 1998. (See Larry Cooper Dep. at 19.)
On March 18, 1998, Cooper sought medical treatment from a Kaiser Permanente physician. The physician's receptionist, Lisa Prioleau, informed Cooper that her medical insurance had been terminated as of February 28, 1998. Cooper had never received notification of the termination. She was greatly upset by the news. (See Prioleau Aff.) That same day, Cooper contacted her attorney, who in turn contacted Toni Burroughs, Harbour Inns's personnel director. Burroughs recognized that she had made an error in terminating Cooper's insurance without notifying her, and therefore reinstated the coverage effective March 24. Burroughs mailed the notification of continuing coverage eligibility to Cooper on March 31, 1998. Although Cooper did not respond to the letter, Harbour Inns continued to provide Cooper with health insurance at Harbour's expense until August 1998. (See Burroghs Aff.)
Cooper received health insurance through Kaiser Permanente as an employee of Harbour Inns.
Cooper filed the instant suit on July 7, 1998. Her complaint is divided into five counts. Count I charges Harbour with nonpayment of wages in violation of Md. Code Ann. Lab. Empl. §§ 3-501 to 3-509. Count II charges Harbour with wrongful termination of the plaintiff's employment. Count III charges Defendants Harbour, Wright, Oliver, Gadd, Sarkis Nazarian, Chris Nazarian, and Lisa Tomassetti with assault and intentional infliction of emotional distress. Count IV alleges that Harbour, Wright, and Oliver violated the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601- 2654. Count V alleges that Harbour and the unnamed plan administrator violated the Consolidated Omnibus Budget Reconciliation Act (COBRA), 29 U.S.C. §§ 1101- 1169.
Sarkis Nazarian is President of Harbour Inns and a member of the Board of Directors. Chris Nazarian is an Assistant Administrator at Harbour. Lisa Tomassetti has been the Administrator of Harbour since April 1997.
The parties have filed cross-motions for summary judgment on all counts. The plaintiff has also filed a Motion for an Order to Show Cause. The Court will first address the Motion for an Order to Show Cause. It will then turn to Cooper's federal law claims, and finally to her state law claims.
The Court will consider the plaintiff's Motion for Summary Judgment although it was not filed in accordance with Local Rule 105.2(c).
II. Summary Judgment Standard
The Court may grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c);Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (recognizing that trial judges have "an affirmative obligation" to prevent factually unsupported claims and defenses from proceeding to trial). Nevertheless, in determining whether there is a genuine issue of material fact, the Court views the facts, and all reasonable inferences to be drawn from them, in the light most favorable to the non-moving party. Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987).
III. Discussion A. Plaintiff's Motion for an Order to Show Cause
Cooper seeks to bar the defendants from asserting as a defense to the plaintiff's wrongful termination claim that they had no notice of Cooper's medical condition. The plaintiff seeks this remedy because she alleges that the defendants have failed to provide an adequate explanation for their failure to produce various discoverable documents, including: (i) several letters from Cooper's employment file, and (ii) Harbour Inns's visitor logs from January and February 1998, which could demonstrate the dates that Larry Cooper visited Harbour Inns to deliver Kathy Cooper's doctor's slips.
In her Motion, the plaintiff refers to "Count I" of her complaint, but also refers to wrongful termination. Count I of the complaint charges non-payment of wages. The Court assumes the plaintiff intended to refer to Count II, wrongful termination.
As explained below, Cooper's wrongful termination claims fail regardless of whether or not the defendants had notice of her medical condition. The Court will therefore deny the Motion as moot.
The Court also notes that the plaintiff has provided no evidence demonstrating that the defendants lost or destroyed the letters and visitor logs in bad faith.
B. Family and Medical Leave Act (FMLA) Claim (Count IV)
The Family and Medical Leave Act, 29 U.S.C. §§ 2611- 2654, requires that affected employers grant eligible employees up to a total of twelve workweeks of leave during any twelve month period because of a serious health condition. See 29 U.S.C. § 2612(a)(1)(D). The leave may be unpaid. See id. § 2612(c). An employer may require that an employee provide certification of her health condition. See id. § 2613. Employers who violate the provisions of the Act are liable to the affected employee for damages equal to any lost wages or benefits, or equal to actual monetary losses sustained, plus interest. See id. § 2617(a)(1). A court may also award liquidated damages equal to the amount of actual damages, or grant equitable relief. See id.
In this case, parties agree that Harbour is an employer covered by FMLA, and that Cooper was an eligible employee. The parties also agree that if Cooper did provide notice to Harbour that she was unable to return to work on January 20, 1998 due to illness, she would not have been terminated on January 23. (See Def. Opp. Pl. Mot. Summ. J. at 11.)
The Court finds that there is a dispute of material fact as to whether Cooper provided notice that she was unable to return to work on January 20, 1998. Defendants state that they never received any doctor's slip from Cooper explaining that she could not return to work after January 19 and that Cooper never called in to explain her absence. On January 23, Oliver therefore terminated Cooper's employment after she failed to report to work on January 20, 21, and 22.
Cooper counters that she did in fact provide Harbour with notice that she was too ill to work. She states that she called Harbour on January 19, and twice attempted to leave a message for Oliver explaining that she was too sick to work. (See Cooper Dep. at 223, 225-26.) She also "believes" she sent her brother Larry Cooper to Harbour with a doctor's slip on or soon after January 19. (See id. at 228-29.) Larry Cooper testified at deposition that he delivered a doctor's slip to Harbour at some date in January, but that he could not recall the precise date. (See Larry Cooper Dep. at 18-19.) Unfortunately, Harbour's visitor logs for January 1998, which could have provided the precise date on which Larry Cooper visited Harbour Inns, were destroyed in September 1998. Finally, Cooper's doctor, Dr. Nibondh Chaiyupatumpa, testified at his deposition that his records reflect that he wrote a slip for Cooper on January 16, 1998, stating that she was unable to return to work until at least February 2, 1998. (See Chaiyupatumpa Dep. at 29.)
If Harbour received notice that Cooper was too sick to work and instead terminated her employment, it may have violated the FMLA. The Court will therefore deny both Cooper's and Defendants Harbour's and Oliver's Motions for Summary Judgment on Count IV.
The Court will, however, grant Defendant Wright's Motion for Summary Judgment on Count IV. An individual may be liable under the FMLA if they are a person "who acts, directly or indirectly, in the interest of an employer." 29 U.S.C. § 2611(4)(A)(ii)(I). This provision has been interpreted as subjecting to liability only those individuals who had "supervisory authority over the complaining employee and [were] responsible in whole or in part for the alleged violation." Knussman v. Maryland, 935 F. Supp. 659, 664 (D. Md. 1996). Here, the plaintiff has produced no evidence to show that Wright was involved in any way with Oliver's and Harbour's decision to terminate Cooper.
The Court notes that any recovery by Cooper at trial would be limited. Harbour's theory assumes that Cooper failed to provide notice of her illness either by calling in sick or delivering a doctor's slip via her messenger-brother. Cooper contends that she provided the notice required by the FMLA.
If the finder of fact believes Harbour, then Harbour was entitled to terminate Cooper's employment as of January 23. Under Harbour's employment policy, if an employee is terminated, then she is not entitled to her accrued sick leave. Accordingly, Cooper would have forfeited her sick leave.
If the finder of fact credits Cooper, then Harbour was required to extend Cooper at least an additional ten weeks of additional leave, albeit unpaid. Harbour could not have terminated her employment before the conclusion of the additional ten weeks of medical leave. Cooper would have remained an employee after January 23, and therefore have been entitled to exhaust her 212 hours of sick leave. Cooper's hourly wage appears to have been $9.16 (See Burroughs Aff. Exh A), thus entitling Cooper to approximately $1,940 in sick leave. Under § 2617(a)(1)(A)(ii), Cooper would also be entitled to receive interest on any damages awarded.
The parties have not specified whether Cooper's absence from January 3 to January 19 counted against her FMLA leave. The Court will assume for the purposes of this Memorandum that Cooper had already used approximately two weeks of her FMLA leave from January 3 to January 19, thus leaving her with ten weeks of leave available.
The Court does not reach the figure of $1,940 as a finding of fact, but rather provides it as an estimate of Cooper's maximum potential recovery.
Under the FMLA, the award of liquidated damages is within a Court's discretion. See 29 U.S.C. § 2617(a)(1)(A)(iii); Rhoads v. FDIC, 956 F. Supp. 1239, 1261 (D. Md. 1997). In this case, Cooper therefore might recover an additional $1,940, thus bringing total damages to $3,880. Liquidated damages are not automatic, but are to be awarded if Court, rather than jury, concludes that the employer acted in bad faith.
Cooper has not produced evidence of any other monetary losses. She also would not appear to be entitled to any equitable relief such as reinstatement, as she has by her own admission been too ill to seek employment either with Harbour Inns or any other employer since her dismissal in January 1998. (See Cooper Dep. at 472-73.)
The FMLA also mandates an award of a reasonable attorney's fee to a successful plaintiff. See 29 U.S.C. § 2617(a)(3). As the Fourth Circuit has noted, when an award of attorneys' fees is mandatory, as under the FMLA, a court may decrease the amount of fees that might otherwise be awarded "in order to account for the plaintiff's limited success." McDonnell v. Miller Oil Co., Inc., 134 F.3d 638, 641 (4th Cir. 1998). In the instant case, if the plaintiff prevailed, the Court would be inclined to limit attorneys fees to an amount no greater than the plaintiff's actual recovery.
C. Consolidated Omnibus Budget Reconciliation Act (COBRA) claim (Count V)
The Consolidated Omnibus Budget Reconciliation Act (COBRA) requires that an employer provide an employee an opportunity to elect continuation of health insurance coverage under the same terms of the employer's health plan after some "qualifying event" that would otherwise end the employee's health insurance coverage. See 29 U.S.C. § 1161. Termination of employment is a relevant qualifying event. See id. § 1163(2).
COBRA is a subchapter of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001- 1461.
The employer and plan administrator are responsible for notifying employees of their COBRA rights. The employer must notify the administrator of a qualifying event within thirty days of the event. See 29 U.S.C. § 1166(a)(2). After receiving such notice, the administrator has fourteen days to notify the employee of her right to elect continuation coverage. If the employer is the plan administrator, the employer has a total of forty-four days to notify an employee. See Roberts v. National Health Corp., 963 F. Supp. 512, 515 (D.S.C. 1997).
Cooper does not identify a plan administrator, and does not dispute Harbour's statement that Harbour Inns itself is the plan administrator. (See Harbour Inn's Mot. Summ. J. at 27.) The Court therefore accepts Harbour's contention that it is the plan administrator. As Cooper's employment was terminated on January 23, 1998, Harbour was obligated to send Cooper notification of her eligibility for continuing coverage within forty-four days of her termination, or by March 8, 1998.
Harbour concedes that it failed to timely notify Cooper of her right to continuing coverage. Cooper sought medical treatment on March 18 and was told by the physician's receptionist that her health insurance had been terminated and that she could not receive treatment that day. Cooper's attorney contacted Harbour that same day, and Cooper's coverage was reinstated by March 24, 1998. The first notification letter was mailed to Cooper on March 31, 1998. (See Burroughs Aff. Ex. C).
The Court finds there is no dispute of material fact that the defendants did fail to timely notify Cooper of her COBRA rights, and that the defendants rectified their mistake by reinstating Cooper's insurance on March 24, 1998. Summary judgment for the plaintiff on this count is therefore appropriate.
The Court rejects Harbour's alternative argument, that the defendants were exempt from COBRA under 29 U.S.C. § 1166 because Cooper was terminated for gross misconduct. It would be highly inconsistent for the defendants to have reinstated Cooper's health insurance coverage for five months at their own expense while at the same time believing that she had been terminated for gross misconduct.
A court has discretion to assess a civil penalty of up to one hundred dollars ($100.00) per day for failure to comply with COBRA's notification requirements. See 29 U.S.C. § 1132(c)(1). The provisions of § 1132(c) are intended to induce compliance by plan administrators. See Paris v. F. Korbel Brothers, Inc., 751 F. Supp. 834, 839-40 (N.D. Cal. 1990). Two factors generally guide a court's discretion to award damages: (i) prejudice to the plaintiff and (ii) the nature of the administrator's conduct. See Davis v. Featherstone, 97 F.3d 734, 738 (4th Cir. 1996) (addressing penalties for ERISA violations in general). Prejudice to the plaintiff is a pertinent factor, but not a prerequisite to imposing a penalty. See id.
The Court further finds that a limited award of damages is appropriate. There is no dispute that Cooper was upset by the revelation on March 18 that her health insurance had been terminated. (See Prioleau Aff.) Moreover, it is merely through good fortune that Cooper did not suffer a more serious illness during the period that she was uninsured. Cf. Paris, 751 F. Supp. at 839-40 (N.D. Cal. 1990) ("An administrator's duties under COBRA are not onerous, while the result of non-compliance could be disastrous for the former employee.").
There is no evidence, however, of any greater prejudice to Cooper. Although Cooper contends that the medical services she sought on March 18 were "critically needed," she has provided no evidence to support this assertion. She has also not produced any evidence to show that her health was adversely affected by the denial of services on March 18.
Furthermore, the defendants acted in good faith in correcting their error. Cooper's health insurance was restored by March 24, 1998. Thus, any injury to Cooper was cured by that date. Harbour issued a COBRA notification letter on March 31. Moreover, although Cooper did not respond to the COBRA letter, Harbour continued her health insurance coverage at its own expense until August 1998. Because any harm to Cooper was cured in good faith by March 24, 1998, the Court will order Harbour to pay to Cooper penalties under § 1132(c) of $10 (ten dollars) per day for the period from March 8 to March 24, 1998.
Because the notification letter was not mailed until March 31, the defendants were technically in violation of COBRA until that date. Any harm to the plaintiff, however, was abated by March 24, when her insurance coverage was restored.
A court is authorized by 29 U.S.C. § 1132(g) to award attorney's fees and costs in an ERISA action. A court's discretion is guided by five factors: (i) the degree of opposing parties' culpability or bad faith; (ii) ability of opposing parties to satisfy an award of attorney's fees; (iii) whether an award of attorney's fees against the opposing parties would deter other persons acting under similar circumstances; (iv) whether the parties requesting attorney's fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and (v) the relative merits of the parties positions. See Quesinberry v. Life Ins. Co of North America, 987 F.2d 1017, 1029 (4th Cir. 1993).
The Court is inclined to award a limited attorney's fee in this case. Upon discovering that her health insurance had been terminated without notice, Cooper was required to consult an attorney. The attorney in turn had to conduct sufficient research to determine the defendants' obligations under COBRA, and then write a letter to the defendants that informed them of their error. The defendants rectified their mistake in good faith, however, as soon as Cooper's attorney notified them. They have not disputed that they erred in failing to notify Cooper of her COBRA eligibility. The Court will therefore limit the award of attorney's fees to reflect the sum of: (i) the value of the work performed up until Cooper's health insurance was restored, and (ii) the value of Cooper's statutory damages.
D. Wrongful Termination (Count II)
In order to sustain a claim of wrongful termination under Maryland law, a plaintiff who was an at-will employee must show that the "motivation for the discharge contravenes some clear mandate of public policy." Watson v. Peoples Sec. Life Ins. Co., 322 Md. 467, 476, 588 A.2d 760 (1991) (citing Adler v. American Standard Corp., 291 Md. 31, 47 (1981)). The parties agree that Cooper was an at-will employee of Harbour.
Cooper argues that the defendants violated two separate public policy mandates in terminating her employment. First, she alleges that the defendants dismissed her because she pressed a criminal assault claim against Wright. Second, she alleges that her dismissal and the defendants' "no-call, no-show" policy violate public policy as expressed by the Family and Medical Leave Act (FMLA). As discussed below, neither theory can survive summary judgment.
1. The Assault Theory
Cooper has produced no evidence showing that the complaint she filed with the Baltimore City Police Department played any role in Oliver's decision to terminate her. She has not even demonstrated that Oliver was aware of the criminal complaint when she terminated Cooper's employment on January 23, 1998. Cooper's only argument is that the closeness in time between her filing the assault complaint (January 14) and her termination date gives rise to an inference that the two events were related. Such speculation is insufficient to survive summary judgment.
Cooper seems to be arguing at one point that she was not terminated until February 13, 1998, the date on which Defendants issued Cooper her final paycheck. The evidence is clear, however, that Cooper was terminated January 23, 1998. See, e.g., Harbour's Mot. Summ. J. Exh. 7B.
Even if Oliver were aware of the criminal complaint when she fired Cooper, such an action may not amount to a violation of public policy under Maryland law. Cooper argues that public policy supports investigation and prosecution of criminal offenses. Maryland law is clear, however, that absent a threat to bodily integrity, wrongful discharge claims cannot be maintained to vindicate wholly abstract policies such as "the right of redress." See Tynes v. Shoney's, Inc., 867 F. Supp. 330, 334 (D. Md. 1994) (quoting Watson, 322 Md. at 477). "An employer of a discontented at-will employee cannot be required to face the choice between retaining the employee or risking an abusive discharge suit." Tynes, 867 F. Supp. at 334.
A wrongful discharge claim may survive, however, if the fired employee was protecting her bodily integrity. See Tynes, 867 F. Supp. at 334. As discussed below, the merits of Cooper's assault claim are tenuous at best.
2. The FMLA Theory
Cooper's second theory posits that her dismissal and the defendants' "no-call, no-show" policy violates public policy as expressed by the Family and Medical Leave Act (FMLA). The Court disagrees. As a matter of law, the FMLA cannot be a source of public policy on which to base a wrongful discharge claim under Maryland law. "Abusive discharge is inherently limited to remedying only those discharges in violation of a clear mandate of public policy which otherwise would not vindicated by a civil remedy." Makovi v. Sherwin-Williams Co., 316 Md. 603, 605, 561 A.2d 179 (1989) (emphasis added). The FMLA clearly provides a civil remedy for any violations. See 29 U.S.C. § 2617. Therefore, no wrongful termination claim under the FMLA is possible.
Cooper also argues at length that Harbour's "no-call, no-show" policy, which requires ill employees to report their illness within three days or be terminated, violates the FMLA. Cooper claims that employees who are "critically ill may not physically be able to report to work." (Pl. Rep. Def. Opp. Pl's Mot. Summ. J. at 6.) Cooper's argument is irrelevant on at least two counts: (i) as stated above, the FMLA provides civil remedies for any violation of the Act, and (ii) there is no evidence that Cooper was too ill to provide Harbour notice that she could not report to work. Indeed, she asserts vociferously that she did provide Harbour with notice of her medical condition. She therefore has no standing to raise hypothetical objections to Harbour's sick leave policies.
Furthermore, the FMLA permits employers to require that employees provide documentation of their medical condition. See 29 U.S.C. § 2613.
E. Nonpayment of Wages (Count I)
Cooper seeks recovery for unpaid wages, vacation time and sick time under Md. Code Ann. Lab. Empl. §§ 3-501 to 3-509. Recovery under this statute is limited to "compensation that is due to an employee for employment." Md. Code Ann. Lab. Empl. § 3-501(c).
Cooper has produced no evidence indicating that the defendants failed to pay her for any hours she worked. She therefore cannot recover any unpaid wages under § 3-507.1. See Battaglia v. Clinical Perfusionists, Inc., 338 Md. 352, 363, 658 A.2d 680 (1995). She also admits that she has been paid for 160 hours (four weeks) of accrued vacation time. (See Pl. Mem. Opp. Sum. J. at 11.) She has not produced any evidence of accrued vacation time for which she has not been paid.
Cooper also seeks the value of her accrued sick leave. As stated above, any recovery under the statute is limited to "compensation that is due to an employee for employment." § 3-501(c)(1). Defendants state that it is Harbour's policy not to pay any accrued sick leave to employees who are either terminated or who quit. (See Burroughs Aff.) Plaintiff does not challenge the accuracy of this statement. It is undisputed that Cooper's employment was terminated on January 23, 1998. Under the terms of her employment, regardless of why her employment ceased, Cooper was therefore not entitled to the balance of her sick leave. She thus cannot recover the balance of her sick leave under the Maryland statute. See Rhoads v. FDIC, 956 F. Supp. 1239, 1259 (D. Md. 1997). The Court will therefore grant summary judgment for the defendants on this count.
As noted above, Cooper may be able to recover the balance of her sick leave under the FMLA.
F. Intentional Infliction of Emotional Distress and Assault (Count III)
Count III of the Complaint charges all defendants with intentional infliction of emotional distress. For the reasons explained below, the Court will grant summary judgment for all defendants on this Count.
Count III also alleges the tort of assault against Wright and against Harbour under a theory of respondeat superior. Cooper does not state whether she is pressing an assault claim against all of the other defendants as well. As she has not alleged any facts that would implicate the other defendants in an assault claim, the Court will grant summary judgment in favor of all other defendants. For the reasons explained below, the Court will dismiss the assault claim against Wright and Harbour for lack of subject matter jurisdiction.
1. Intentional Infliction of Emotional Distress
Four elements are essential to state a claim for intentional infliction of emotional distress in Maryland: (i) the conduct must be intentional or reckless; (ii) the conduct must be extreme and outrageous; (iii) there must be a causal connection between the wrongful conduct and the emotional distress; (iv) the emotional distress must be severe. See Harris v. Jones, 281 Md. 560, 566, 380 A.2d 611 (1977). In addition, the context of an employment relationship, with its inherent opportunities for abuse of authority, "is a factor to be considered when analyzing whether an employer's behavior was so outrageous that he or she has committed the tort of intentional infliction of emotional distress." Kentucky Fried Chicken Nat'l Mgmt. Co. v. Weathersby, 326 Md. 663, 678, 607 A.2d 8 (1992).
The employment relationship, however, "may not always inure to the employee's benefit in claims of intentional infliction of emotional distress." Id. The Kentucky Fried Chicken court explained:
The workplace is not always a tranquil world where civility reigns. Personality conflicts and angst over disciplinary actions can be expected. Even a certain amount of arbitrary nastiness may be encountered at all levels in all occupations; this is a fact of life we must accept as readily as we recognize that employers and employees on the job interact differently than do friends at a summer picnic.Id. at 679. Furthermore, the Maryland Court of Appeals has emphasized that "the tort is to be used sparingly and only for opprobrious behavior that includes truly outrageous conduct." Id. at 670.
Cooper states that she complained repeatedly to her supervisors that Wright was harassing her, but that the supervisors did not respond. She complains that Wright referred to her as a "bitch," that Wright pointed her fingernails in Cooper's face, and that Wright forced her to perform difficult and unreasonable tasks in the course of her duties. She also alleges that Wright assaulted her on the evening of December 27, 1997.
The Court finds that the alleged actions of Wright and the other defendants, even if substantiated, do not rise to the level of extreme or outrageous conduct necessary to sustain a claim of intentional infliction of emotional distress. At most, Cooper has alleged that she was employed in a difficult and unsympathetic work setting. This pales in comparison to the "egregious acts" in the few cases where Maryland courts have upheld claims of intentional infliction of emotional distress.See Batson v. Shiflett, 325 Md. 684, 735, 602 A.2d 1191 (1992) (citing Figueiredo-Torres v. Nickel, 321 Md. 642, 584 A.2d 69 (1991) (psychologist had sexual relations with the plaintiff's wife during the time when he was treating the couple as their marriage counselor); B.N. v. K.K., 312 Md. 135, 538 A.2d 1175 (1988) (physician did not tell nurse with whom he had sexual intercourse that he had herpes); Young v. Hartford Accident Indem., 303 Md. 182, 492 A.2d 1270 (1985) (worker's compensation insurer's "sole purpose" in insisting that claimant submit to psychiatric examination was to harass her and force her to abandon her claim or to commit suicide)).
Furthermore, Cooper has not produced evidence of distress severe enough to sustain her claim. Cooper was doubtlessly upset by the confrontation between Wright and herself the night of December 27, 1997. She was also distressed to discover on March 18, 1998 that her health insurance had been terminated. Such claims, however, do not rise to the level of severe distress necessary to sustain her claim. Cf. Kentucky Fried Chicken, 326 Md. 663 (finding no claim for intentional infliction of emotional distress when employee was hospitalized for six weeks for psychiatric treatment and never returned to work after hostile treatment by supervisor).
2. Assault
In Maryland, the tort of assault consists of two basic elements. See Lee v. Pfeifer et al., 916 F. Supp. 501, 505 (D. Md. 1996). First, the plaintiff must prove that she was threatened by a defendant who possessed the apparent present ability to carry out that threat. See id; Continental Casualty Co. v. Mirabile, 52 Md. App. 387, 449 A.2d 1176, 1183 (1982) ("An assault is any unlawful attempt to cause a harmful or offensive contact with the person of another or to cause an apprehension of such a contact."). Second, the defendant's actions must have raised in the plaintiff's mind an apprehension of imminent bodily harm. Although the first element is measured by a standard of reasonableness, the second element is measured by an entirely subjective standard. See Lee, 916 F. Supp. at 505.
The gravamen of Cooper's assault claim concerns the confrontation between Wright and her on December 27, 1997. She appears to allege two separate assaults: the first took place at the nurses' station, where Wright is alleged to have pointed her three-inch long fingernails in Cooper's face. The second occurred shortly thereafter, when Wright followed Cooper out of the building.
Cooper's assault claim is tenuous. She admits that during the first incident she and Wright were separated by a wide desk, and that Wright remained seated at all times. Cooper does not state what precisely constitutes Wright's threat against her. She states only that she was "frightened to death that [Wright] could put my eyeballs out with her nails." (Cooper Dep. at 155.) During the second incident, she alleges Wright "chased" her out of the building, but does not state that Wright ever raised her hand against her or made a threat.
Nevertheless, rather than address the merits of the assault claim, the Court will dismiss the claim for lack of subject matter jurisdiction. The assault claim is based entirely in state law. It is before the Court solely under supplemental jurisdiction, 28 U.S.C. § 1367. This statute permits a federal court to take jurisdiction over a state law claim if all claims form part of the "same case or controversy." 28 U.S.C. § 1367(a). The only surviving federal claim in this case, however, pertains to alleged violations of the FMLA, which is entirely unrelated to the incidents of December 27, 1997. Because the state and federal claims do not derive from "a common nucleus of operative fact,"United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966), the Court will decline to exercise supplemental jurisdiction over the assault claim.
The Court does not believe that dismissing Count III in part will prejudice any party. The plaintiff is free to refile her claim in state court. Refiling in state court will not entail a significant expenditure of time or money. The parties can use the discovery they have already conducted for this case in state court.
IV. Conclusion
For the foregoing reasons, the Court shall, by separate Order, deny the plaintiff's Motion for an Order to Show Cause; grant the plaintiff's Motion for Summary Judgment as to Count V and award $10 (ten dollars) per day for each day from March 8 to March 24, 1998 and award a limited attorney's fee; deny the plaintiff's Motion for Summary Judgment as to Counts I, II, III, and IV; grant Harbour's Motion for Summary Judgment as to Counts I and II; grant all defendants' Motions for Summary Judgment as to the intentional infliction of emotional distress component of Count III; grant Defendants Oliver's, Gadd's, Sarkis Nazarian's, Chris Narzrian's, and Tomassetti's Motions for Summary Judgment as to the assault component of Count III; dismiss for lack of subject matter jurisdiction the assault component of Count III against Defendants Wright and Harbour Inns; grant Defendant Shirley Wright's Motion for Summary Judgment as to Count IV; deny Defendant Harbour Inn's and Defendant Jocelyn Oliver's Motions for Summary Judgment as to Count IV; and deny Harbour's Motion for Summary Judgment as to Count V.
Dated this 20th day of March, 2000.