No. 905, September Term, 2000
Filed: August 1, 2001
Davis, Hollander, Eyler, James JJ.
This matter has its genesis in the termination of Richard Gladhill, Jr., appellant, from his employment at Chevy Chase Bank, F.S.B. (the "Bank" or "Chevy Chase"). appellee. The discharge promptly followed an altercation between Gladhill and a co-worker, Kevin Ferguson, on April 28, 1997. Thereafter, appellant filed a multi-count complaint in the Circuit Court for Frederick County against the Bank and several individuals, seeking compensatory and punitive damages. As to the Bank, Gladhill alleged defamation (Counts I-III, XII); invasion of privacy (Count VII); negligent hiring and retention, (Count VIII); negligent supervision (Counts IX, X); and negligent investigation (Count XI).
Appellant sued five individuals: Laybaa Hernandez, head of the sank's Account Retention Department; Monica Schuler, a member of the Bank's Human Resources Department: Michelle Smith, a member of the flank's Human Resources Department; Laura Mercugliano, Supervisor of the Bank's Account Retention Department and appellant's immediate supervisor; and Ferguson, a Team Leader in the flank's Account Retention Department. As to the individual defendants, appellant alleged defamation (Counts IV-V), tortious interference with employment (Count VI), assault (Count XIII), and battery (Count XIV). None of the individual defendants was served, however, and thus they are not parties to this appeal.
The Bank moved to dismiss Counts I-III and VII-XII, and the court granted the motion, with prejudice. At the same time, the court dismissed Counts V and VI against the Bank, with prejudice, although the Bank was not sued in those counts. Appellant subsequently noted this appeal. He presents six rather lengthy questions for our review:
Rule 8-503(d) permits appellant to submit a 35 page brief. Moreover, Rule 8-112(b)(2) requires that a brief "shall be double spaced, except that headings, indented quotations, and footnotes may be single-spaced." Yet, appellant's brief is 34 1/2 pages in length, of which 20 1/2 pages are single-spaced. Although we do not condone an attempt to make an end run around the rules, we note, that the suit and appellant's brief were prepared by an attorney who has since been disbarred; the attorney who represented appellant at oral argument did not prepare the brief.
I. Whether the trial court erred in concluding that Plaintiff had failed to plead sufficient facts to overcome the qualified privilege that the trial court found to attach to the communications decried in Counts I-III, VII, and XII; whether the trial court also invaded the jury's province in reaching this conclusion,
II. Whether Defendant Chevy Chase's publication of the fact of its discharge of Plaintiff gives rise to liability for defamation, as asserted in Count I of the complaint, inasmuch as Defendant Chevy Chase knew (a) that publication of the fact of plaintiff's discharge would and did impute to Plaintiff the per se defamatory attribute of general unfitness for the subject employment, and (b) that this imputation to Plaintiff was false.
III. Whether publication by Defendant to Plaintiff's non managerial coworkers, who had no employment-related or other legitimate need to know why Plaintiff was discharged, of the purported reasons for Plaintiff's discharge violated Plaintiff's protectible privacy interests, as asserted by plaintiff in Count VII of the complaint.
IV. Whether the Maryland's Workers Compensation Act ("WCA") — Maryland Code, Labor Employment Article, Section 9-101, et seq. — does not bar recovery by Plaintiff on his claims, set forth in Counts VIII, IX, and X or the complaint, that Defendant's negligent breach of legal duties owed to Plaintiff caused personal injuries not cognizeable [sic] under the WCA.
V. Whether the trial court erred in dismissing sua sponte Plaintiff's defamation claim, set forth in Count V of the complaint, against unserved Defendant Ferguson based on Ferguson's knowingly false allegation that Plaintiff posed a threat of violence against their coworkers.
VI. Whether the trial court erred in dismissing plaintiff's claim of tortious interference brought solely against unserved individual Defendants, Mercugliano and Ferguson, in Count VI of the complaint, in which Plaintiff averred that these individuals acted and conspired solely in their private interest to procure the discharge of Plaintiff on the basis of their knowingly false allegation that. Plaintiff had instigated an altercation with Defendant Ferguson.
For the following reasons, we shall affirm the dismissal as to the Bank of Counts I-III, VII, and XII.
As this appeal is before us based on the trial court's disposition of a motion to dismiss, we have generally limited our summary to those facts alleged in the complaint.
Gladhill was hired by the Bank as an Account Retention Specialist on October 3, 1994. After three months, the Bank promoted him to the position of Senior Account Representative. In December 1996. appellant was again promoted, this time to the position of Team Leader in the Account Retention Department. Ferguson, who was hired after Gladhill, was also a Team Leader in the Account Retention Department. According to appellant, Ferguson has a history of criminal charges, including assault and battery, which the Bank "negligently failed to ascertain."
On April 25 or 26, 1997, Gladhill found part of a gold earring on his desk, but was unsuccessful in identifying the person to whom it belonged. Therefore, he sent an e-mail message to his co-workers on April 28, 1997, stating: "A gold earring stem was left on my desk yesterday. If any of you females (or Kevin) lost it, you can come to my desk. I have it here." The "Kevin" mentioned in the e-mail referred to Ferguson, who had previously been seen wearing an earring. Appellant thought the e-mail message was "harmless and humorous," and claimed that. other co-workers agreed with that view. After Gladhill sent the e-mail, he saw Ferguson, showed him the earring, and asked if he lost it. Ferguson responded: "No, I wear a diamond (earring] ." Appellant then suggested that Ferguson check his e-mail.
Later that day, while appellant was on the telephone, Ferguson approached him and said: "`Don't you know how to use e-mail?'" At the conclusion of the phone call, Ferguson demanded that appellant explain the e-mail message. Gladhill, insisted that. the e-mail was meant as a "`joke, '" and suggested that Ferguson sit down to discuss the matter. Ferguson wanted to discuss the e-mail elsewhere, but appellant refused to leave his work station. When Ferguson proceeded to talk about the "proper use of e-mail," appellant responded: "`Don't lecture me.'"
Laura Mercugliano, appellant's immediate supervisor, had not seen appellant's e-mail and was unaware of the issue. Nevertheless, she arranged relief for appellant from his telephone duties so that Ferguson could meet with Gladhill. Although appellant said he did not want to meet, Mercugliano led appellant and Ferguson to an unoccupied storage room. Then appellant attempted to return to his work area, Mercugliano demanded that he go to the storage room. Appellant responded: "'We can have this meeting in Human Resources tomorrow if it is that big of a deal.'" Nevertheless, Mercugliano "ordered [appellant] into the vacant storage room." According to appellant, Mercugliano "took no action whatever to prevent or halt . . . the altercation" with Ferguson.
Once appellant and Ferguson were alone in the storage room, Ferguson approached appellant and said: "'What are you trying to make me out to be, some kind of a joke?'" Appellant repeated that the e-mail was meant as a joke, to which Ferguson replied: "'Why did you pick me for this joke?'" Standing approximately two feet from appellant, Ferguson again began discussing the proper use of e-mail, to which appellant again responded, "'Don't lecture me.'" Moreover, in "a raised voice," Ferguson said: "'Now who do you think you are?'" Ferguson moved closer to appellant and "stuck his finger in [appellant's] face, without actually touching [him], but forcing [appellant] to lean backward to avoid physical contact. . . ." Appellant moved Ferguson's finger away and stated: "'You're not going to [expletive] interrogate me.'" (Alteration in complaint). At that point, according to the complaint, Ferguson physically "attacked" appellant, "striking" him in the "chest with his shoulder and propelling [appellant] several feet across the room." while appellant was on the floor, Ferguson jumped on appellant and used both a "choke hold" and a "head lock" for "several minutes." Appellant "resisted with sufficient force to break" the "choke hold, but was still being held in a head lock. . . ." Another employee. Shaun Wolfe, entered the room and told the two to "`[b]reak it up.'" Ferguson immediately released appellant and both parties stood up. Two security guards "arrived a moment later" and escorted both men out of the storage room. Security personnel then ordered the pair to leave the Bank's premises.
Appellant offered to submit a written account of the incident, but was told by a security officer that he would be "summoned from his home" to report to work with a statement. That evening, Mercugliano called appellant at home and told him that he had been placed on administrative leave and that his security badge had been deactivated, So that he could not enter the Bank.
The next day, April 29, 1997, Michelle Smith, of the Bank's Human Resources Department, unsuccessfully attempted to talk with appellant at his home. She called appellant again on April 30, 1997, and advised him that he had been discharged from employment with the Bank. Then asked why, Smith replied that the decision was "`based on statements from two witnesses,'" identified by her as Mercugliano and Ferguson, who indicated that appellant initiated the altercation. He explained that he "had been ordered by a supervisor to go to the vacant room where [he] bad been `attacked'. . . ." Appellant also asked Smith how he could be fired without an opportunity to submit a statement about the incident. Smith responded that appellant had just "`made [his] statement.'" When appellant persisted in his desire to submit a written statement about what occurred, Smith indicated that he could mail in a statement, but his termination was final. Appellant submitted a written statement to Smith on or about May 1, 1997.
On or about May 2, 1997, Smith telephoned appellant and advised him that he had been discharged "not only for his alleged role in the altercation, but also because he had thrown a pen at his supervisor [, Carolyn Buchleitner,] and had also engaged in verbal disputes with supervisors." Appellant insisted that the allegation was "bogus," informed Smith that the pen-throwing allegation was "both false and a `slander,'" and said that the allegation had been withdrawn after he had filed a grievance. Nevertheless, Smith claimed that the allegation was contained in appellant's employment records. According to appellant, employees Buchleitner and Schuler knew the accusation was supposed to have been expunged from his record.
Appellant inquired of Smith as to whether the Bank's records showed that "he had been `right' every time in the verbal disputes with supervisors." In an effort to show that the Bank knew the accusation was unfounded, appellant pointed out that he was promoted to Team Leader in December 1996, and, in March 1997, three months after the alleged pen-throwing incident, Hernandez recommended his promotion to the position of Portfolio Analyst. Similarly, in April 1997. the Human Resources Department urged appellant to apply for promotion to the position of Operations Analyst. According to appellant, he would not have been recommended or considered if there had been any concern about his conduct. Thus, appellant claimed he was fired because of the incident with Ferguson on April 28, 1997, which Mercugliano "orchestrated." and that the alleged "prior misconduct" was nothing more than a "post-hoc effort" to justify the discharge.
On or about May 7, 1997, appellant spoke to Smith and requested the necessary forms to file a workers' compensation claim. According to appellant, Smith responded: "`Since you can't have your job back, you're going to go that route.'" Smith refused to provide the forms and advised appellant to request them from another department. She also insisted that he was fired because he had thrown a pen at a supervisor, and because he was "`brawling in a back room.'"
After appellant was discharged, Hernandez allegedly disclosed to appellant's co-workers that appellant had been discharged for "`instigating' the above-described altercation with [Ferguson]." In addition, Ferguson allegedly "made repeated remarks to other, non managerial and non supervisory employees of (the Bank] to the effect that, because (appellant] had been discharged, they need no longer feel threatened in the workplace . . ." Appellant asserted, however, that he had an expectation of privacy with respect to his termination, because the Bank had a policy of confidentiality as to any adverse employment decision, and disclosure was on a "`need to know'" basis.
Appellant filed suit on April 27, 1998, against the Bank and the five individual defendants. As we noted, none of the individual defendants was served. On October 29, 1999 Chevy Chase moved to dismiss Counts I-III and VII-XII of the complaint. With respect to the defamation claims asserted in Counts I-III and. XII, the Bank argued, inter alia, that any alleged defamatory statements were protected by a common law qualified privilege. Appellee argued for the dismissal of Count VII based on a lack of duty and, in the alternative, based on a common law qualified privilege. As to Counts VIII, IX, and X, the Bank argued., inter alia that the Maryland Workers' Compensation Act, Md. Code (1991, 1999 Repl. Vol.), §§ 9-101 et seq. of the Labor and Employment Article ("L.E."), provides the "exclusive remedy for an injury arising out of or in the course of employment." Finally, the Bank sought dismissal of Count XI on the ground that "Maryland does not recognize a cause of action for negligent investigation."
On February 15, 2000, the court held a hearing on the Bank's motion. At the conclusion of the hearing, the court dismissed with prejudice Count XI, concerning the alleged negligent investigation by the Bank of the altercation, but otherwise held the motion sub curia. Thereafter, in an Opinion and Order dated April 25, 2000. the court granted appellees' motion to dismiss, with prejudice, as to the remaining counts against the Bank. It also dismissed, as to the Bank, Count V, in which only Ferguson was sued, and VI, in which Ferguson and Mercugliano were named.
Gladhill does not challenge the dismissal of Count XI, and therefore we need not address the merits of the dismissal of that claim.
We shall include additional facts in our discussion.
STANDARD OF REVIEW
In reviewing the trial court's grant of a motion to dismiss, we assume the truth of the well-pleaded facts in the complaint, as well as all reasonable inferences drawn therefrom. See Morris v. Osmose Wood Preserving, 340 Md. 519, 531 (1995); Stone v. Chicago Title Ins. Co., 330 Md. 329, 333-34 (1993); Samuels v. Tschechtelin, 135 Md. App. 483, 515 (2000). Moreover, we must consider those facts and inferences in the light most favorable to appellant. See Berman v. Karvounis, 308 Md. 259, 254-65 (1987); Samuels, 135 Md. App. at 515. But, "[i]f the complaint fails facially to disclose a legally sufficient cause of action, then we must affirm the dismissal order of the motion court." Samuels, 135 Md. App. at 515; see Lubore v. RPM Assocs., 109 Md. App. 312, 322, cert. denied, 343 Md. 565 (1996); Hrehorovich v. Harbor Hosp. Ctr., Inc., 93 Md. App. 772, 785 (1992), cert. denied, 330 Md. 319 (1993). This means that we must affirm the court-ordered dismissal if, assuming the truth of the facts alleged, Gladhill is not entitled to relief as a matter of law, See Samuels, 135 Md. App. at 515; Lubore, 109 Md. App. at 322.
As a threshold matter, we raise, nostra sponte, the question of whether this appeal is properly before us as an appeal from a final judgment, given that the dismissal did not dispose of the claims against the individual defendants, none of whom were served. See County Council of Prince George's County v. Offen, 334 Md. 499, 508 (1994); Moats v. City off Hagerstown, 324 Md. 519, 524 (1991) (stating that "An appellate court ordinarily will consider only an issue which is properly raised by the parties in the appellate court, unless the issue concerns the jurisdiction of the trial court or of the appellate court."); Board off Educ. v. Hubbard, 305 Md. 774, 784 (1986); State Com'n on Human Relations v. Anne Arundel County, 106 Md. App. 221, 232 (1995). The court did not dismiss Count IV, against Mercugliano and Ferguson, or Counts XIII and XIV, against Ferguson. As to the Bank, the court dismissed Counts I-III, V-X, and XII, but it did not dismiss those counts as to the individual defendants who were also named.
In Count I, appellant sued the Bank as well as Smith and Hernandez. In Counts II, VII, and X, both Hernandez and the Bank were sued. Count III was tiled against the Bank and Schuler. In addition, Ferguson was named in Count V. while Ferguson and Mercugliano were both sued in Count VI. In Count IX, appellant sued Mercugliano and the Bank, and Count XI was lodged against both Smith and the Bank.
Ordinarily, "`a party may only appeal from a final judgment, that is, a judgment that settles the rights of the parties or concludes the cause.'" City off District Heights v. Denny, 123 Md. App. 508, 518 (1992) (quoting Town off Port Deposit v. Petetit, 113 Md. App. 401, 409 (1997)); see Philip Morris Inc. v. Angeletti, 358 Md. 689, 713 (2000); Board of Liquor License Comm'rs v. Fells Point Cafe, Inc., 344 Md. 120, 129 (1996); Estep v. Georgetown Leather, 320 Md. 277, 282 (1990); Carr v. Lee, 135 Md. App. 213, 221 (2000); Shoffer v. Stuart Hack Co., 107 Md. App. 585, 592 (1996); see also Md. Code (1974, 1998 Repl. Vol., 1999 Supp.), § 12-301 of the Courts and Judicial Proceedings Article ("C.J."). Although the court's dismissal did not dispose of the claims against the individual defendants, we are satisfied that the appeal is properly before us.
Maryland Rule 2-602 provides, in pertinent part:
Rule 2-602. Judgments not disposing of entire action.
(a) Generally. Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, cross-claim, or third-party claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action:
(1) is not a final judgment;
(2) does not terminate the action as to any of the claims or any of the parties; and
(3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties.
(b) When Allowed. If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment:
(1) as to one or more but fewer than all of the claims or parties; or
(2) pursuant to Rule 2-501(e)(3), for some but less than all of the amount requested in a claim seeking money relief only.
In a case involving multiple claims and multiple parties, Rule 2-602(b) "permits a court to enter final judgment as to a particular (claim] so long as `the court expressly determines in a written order that there is no just reason for delay.'" Tall v. Board of School Com'rs of Baltimore City, 120 Md. App. 236, 242 (1998) (citation omitted). In this case, however, the court below did not expressly determine that "there [was] no just reason for delay . . ." The question, then, is whether the judgment in favor of the Bank is appealable without the certification under Rule 2-602(b). State Highway Admin. v. Kee, 309 Md. 523, 529 (1987) , provides us with the answer.
In Kee, the plaintiffs brought a personal injury, wrongful death, and survival action as a result of a serious automobile accident, and sued both the State Highway Administration ("SHA") and Green Acres. Inc., a Pennsylvania corporation hired by SHA to repair the guardrail involved in the accident. The foreign corporation was not served and, after the court granted summary judgment to SHA, the plaintiffs appealed. What the Court said as to appealability is instructive here:
Whether the summary judgment in favor of the State is appealable without a Rule 2-602(b) certification turns on whether Green Acres is a party over whom the circuit court acquired in personam jurisdiction. If the summary judgment disposed of all claims against the only party over whom the circuit court had acquired jurisdiction, then the judgment was final and appealable without certification. See Hardy v. Metts, 282 Md. 1 (1978); Tidewater Ins. Assocs. v. Dryden Oil Co., 42 Md. App. 415 (1979). Similarly, under Fed.R.Civ.P. 54(b), from which Maryland Rule 2-602 is derived, a named defendant who has not been served is not a party for the purpose of determining finality of a judgment. See Leonhard v. United States, 633 P.2d 599 (26 Cir. 1980), cert. denied, 451 U.S. 908 (1981); De Tore v. Local # 245 of the Jersey City Pub. Employees Union, 615 F.2d 980 (36 Cir. 1980); Siegmund v. General Commodities Corp., 175 P.26 952 (9th Cir. 1949). On the other hand, if Green Acres has been served, this is a multiple parties case without a final judgment under Rule 2-602, and the appeal is premature.
In the case sub judice, appellant acknowledges in his brief that "[t]he individual Defendants were never served." Furthermore, appellee states in its brief that appellant "still [has] not served the individual defendants named in the Complaint." Thus, under Kee, the individual defendants who have not been served are not considered parties for the purpose of determining finality of a judgment. Accordingly, the appeal is properly before us.
We next address the court's dismissal of Counts V and VI, pursuant to its Order of April 25. 2000. The Bank's Motion to Dismiss expressly stated in the caption that it pertained only to "Counts I-III and VII-XII of the Complaint . . ." To be sure, it is obvious that the Bank did not move to dismiss Count V, because it was lodged only against Ferguson, or Count VI, because it named Ferguson and Mercugliano. Moreover, the court never discussed Counts V and VI in its opinion. Indeed, at the outset of its opinion, the court expressly indicated that the Bank had moved to dismiss Counts I-III and VII-XII. The docket entry for June 7, 2000, states: "Opinion and Order that Deft's Motion to Dismiss with regard to the aforementioned counts is GRANTED. Dismissal is with prejudice." The particular counts are not identified, however.
The parties agree that the court dismissed Counts V and VI inadvertently. Consequently, appellant asks us to reverse the ruling; appellee asks only "that this Court affirm the Circuit Court's dismissal of Counts I-III and VII-XII . . .," conceding that Counts V and VI "were dismissed in error."
In our review of the trial court's opinion, it is clear that the court dismissed Counts V and VI, but it did so as to the Bank only, even though the flank was not sued in those counts. The court said: ". . . Plaintiff Richard Gladhill has failed to state a claim upon which relief can be granted as to Counts I-III, V-X, and XII against Chevy Chase Bank." (Emphasis added). It follows that Counts V and VI were never dismissed against Ferguson and Mercugliano; because Counts V and VI were not dismissed in their entirety, they enjoy the same status as the other claims brought against the individual defendants.
III. Counts I-III, XII (Defamation)
Appellant alleged several acts of defamation committed by the Bank. In Count I, Gladhill claimed that, by verbal and nonverbal publication of his discharge, appellee defamed him by imputing to him "a general inability or unfitness for his subject employment, as well as the commission of such serious misconduct as to justify termination of [appellant's] subject employment." Count II charged defamation by publication of a "knowingly or recklessly false and per se defamatory statement," to the effect that appellant was "justly and properly discharged" because he "instigated an altercation" with Ferguson, thereby "imputing to [appellant) behavior that is unacceptable to every employer." Count III asserted defamation by "foreseeable republications" in appellant's employment records of the allegedly per se defamatory accusation that appellant threw a pen at his supervisor, despite an agreement to delete that accusation from appellant's employment records. Count XII pertained to appellant's effort to collect unemployment compensation, and alleged defamation by dissemination of false information to the Maryland Employment Security Administration ("ESA"), to the effect that appellant was "culpable" for "fighting on the job."
In sum, according to appellant, the defamatory conduct of the Bank, acting through its agents, included bogus assertions concerning the pen-throwing incident and the improper inclusion of that assertion in appellant's employment records; improper disclosure of appellant's discharge to other employees at the Bank; dissemination of false information that appellant instigated the fight with Ferguson; publication that appellant was unfit for employment, committed acts of serious misconduct, and engaged in behavior that made him unsuitable for continued employment with the Bank; and publication of false information to ESA that appellant was tired for cause, even though appellant was actually the one who was attacked. He argues "that when people of more modest means are fired, those who learn of the discharge, without learning of the pertinent facts, typically assume that the discharge resulted from the incompetence or misconduct of the individual who was discharged."
The trial court determined that Counts I — III and XII were "protected by the employer-employee conditional privilege." In reaching that conclusion, the circuit court recognized that "[a]ctual malice . . . cannot be established merely by showing that the publisher acted negligently . . ." After reviewing the allegations and the facts alleged in the complaint, the court said:
This Court is not convinced that the aforementioned allegations in the Complaint provide sufficient evidence to show that the Defendants knew or should have known that any of the published statements related to the defamation claims were false. At most, the facts in the Complaint demonstrate Chevy Chase Bank's negligence. This court finds that (appellee's] actions in this case are insufficient to establish the actual malice necessary to override the employer-employee conditional privilege. Accordingly, Counts I — III and XII are dismissed.
Alternatively, the circuit court agreed with the Bank that Count I should be dismissed on the ground that truth is a complete defense to a defamation claim. The court also determined that Count XII failed to state a claim, because the statements made to ESA were privileged under both statutory and common law.
Appellant maintains that he does not seek to redress the discharge itself. But, he contends that he suffered "reputational and subjective injury flowing from the published defamation . . . ," and has been stigmatized by the "imputation of unfitness for employment. . . ." He adds that, with regard to the ESA claim, Maryland's common law permits "fighting" when it occurs "solely in self — defense to repulse a physical attack. . . .," as he alleged in his complaint. Thus, appellant argues that the finding of qualified privilege was "palpably erroneous." Appellant claims that "the trial court erred in concluding that [he] failed to plead sufficient facts to overcome the qualified privilege that the trial court found to attach to the communications decried in Counts I-III and XII." To the contrary, appellant asserts that his complaint "is replete with well-pled averments of publication of per se defamatory matters with knowing or reckless disregard of their falsity. which on a motion to dismiss must be deemed as overcoming the qualified privilege. . . ."
Under Maryland law, a defamatory statement is one that "tends to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or from associating or dealing with, that person." Batson v. Shiflett, 325 Md. 684. 722-23 (1992); see Rosenberg v. Helsinki, 328 Md. 664, 675 (1992), cert. denied, 509 U.S. 924 (1993); Shapiro v. Massengill, 105 Md. App. 743, 772, cert denied, 341 Md. 28 (1995) — In a case involving a plaintiff who is not a public figure, a prima facie case of defamation requires proof of the following elements:
"(1) that the defendant made a defamatory communication — i.e., that he communicated a statement tending to expose the plaintiff to public scorn, hatred, contempt, or ridicule to a third person who reasonably recognized the statement as being defamatory; (2) that the statement was false; (3) that the defendant was at fault in communicating the statement; and (4) that the plaintiff suffered harm."Bagwell v. Peninsula Reg'l Med. Center, 106 Md. App. 470, 510-11 (1995) (citation omitted), cert. denied, 341 Md. 172 (1996); see Gohari v. Darvish, 363 Md. 42, 54 (2001); Helinski, 328 Md. at 675; Hearst Corp. v. Hughes, 297 Md. 112 (1983); Gooch v. Maryland Mech. Sys., Inc., 81 Md. App. 376, cert. denied, 319 Md. 484 (1990) . When the plaintiff is not a public figure, the element of "fault" may be based either on negligence or constitutional malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); Batson, 325 Md. at 722; Hearst Corp., 297 Md. at 122; Jacron Sales Co. v. Sindorf, 276 Md. 580 (1976); Massengill, 105 Md. App. at 772. See also RESTATEMENT (SECOND) OF TORTS § 580(B) (1977) (the "Restatement") (discussing fault standard for defamation of a private person).
Generally, statements made by an employer in connection with the employer-employee relationship enjoy a qualified or conditional privilege. See McDermott V. Hughley, 317 Md. 12, 28 (1989) (stating that "communications arising out of the employer-employee relationship clearly enjoy a qualified privilege"); General Motors v. Piskor, 277 Md. 165 (1976); Sindorf, 276 Md. 21; Happy 40, Inc. v. Miller, 63 Md. App. 24, 31, cert. denied, 304 Md. 299 (1985) (recognizing the "well settled privilege accorded to statements made within the context of the employer-employee relationship"); see also C.J. § 5-423. A qualified privilege in defamation law "`rests(s] upon the notion that a defendant may escape liability for an otherwise actionable defamatory statement, if publication of the utterance advances social policies of greater importance that the vindication of a plaintiff's reputational interest.'" Woodruff v. Trepel, 125 Md. App. 381, 401 (citation omitted), cert. denied, 354 Md. 332 (1999); see Gohari, 363 Md. at 55-56; Miner v. Novotny, 304 Md. 164, 167 (1985); W. Page Keeton et al., PROSSER AND KEETON ON THE LAW OF TORTS, § 115 at 824-25 (501 ed. 1984) . Thus, "[c]onditional or qualified privileges in defamation law evolved . . . as a means of weighing an important societal interest against the interest of an individual to vindicate injury to his reputation." Woodruff, 125 Md. App. at 401.
C.J. § 5-423 provides:
(a) An employer acting in good faith may not be held liable for disclosing any information about the job performance or the reason for termination of employment of an employee or former employee of the employer:
(1) To a prospective employer of the employee or former employee at the request of the prospective employer, the employee, or former employee; or
(2) if requested or required by a federal, State, or industry regulatory authority or if the information is disclosed in a report, filing, or other document required by law, rule, order, or regulation of the regulatory authority.
(b) An employer who discloses information under subsection (a) of this section shall be presumed to be acting in good faith unless it is shown by clear and convincing evidence that the employer:
(1) Acted with actual malice toward the employee or former employee; or
(2) intentionally or recklessly disclosed false information about the employee or former employee.
"When a statement enjoys a qualified privilege, the privilege defeats an action for defamation." Bagwell, 106 Md. App. at 511. A qualified privilege generally protects the employer with regard to publication to co-workers as to the reason for an employee's discharge. See Bagwell, 106 Md. App. at 511; Happy 40, Inc., 63 Md. App. at 31.
The existence of a conditional privilege is a question of law for the court. Gohari, 363 Md. at 63; Woodruff, 125 Md. App. at 402. Moreover, the burden of proof is upon the defendant to establish that a privilege applies. Id. Conversely, the burden is on the plaintiff to show that the privilege was abused. Woodruff, 125 Md. App. at 402. "Once a judge determines that a privilege exists, the question of whether the privilege was abused is for the jury, subject to the censorial power of the judge where there is no evidence of malice . . . ." Woodruff, 125 Md. App. at 402; see Gohari, 363 Md. at 64; Bagwell, 106 Md. App. at 512.
"A qualified privilege may be overcome only if the plaintiff can prove either that the defendant acted with constitutional malice, that the statement was not made in furtherance of the reason for the privilege, or was communicated to a third person who is outside the protection of the privilege." Gohari, 363 Md. at 63-64; see McDermott, 317 Md. at 29-30; Marchesi v. Franchino, 283 Md. 131, 139 (1978); Woodruff, 125 Md. App., at 402; Leese v. Baltimore County, 64 Md. App. 442, 476, cert. denied, 305 Md. 106 (1985), overruled on other grounds by Harford County v. Town of Bel Air, 348 Md. 363 (1998); Happy 40, Inc., 63 Md. App. at 31-32. "Demonstrating abuse of the privilege requires overcoming a higher standard than simply demonstrating that the statement was defamatory." Gohari, 363 Md. at 53.
When a plaintiff is required to prove actual malice in the case-in-chief, it must be "established by clear and convincing evidence that a statement was made `with knowledge that it was false or with reckless disregard of whether it was false or not.'" Batson v. Shiflett, supra, 325 Md. at 728 (quoting New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964)). But, constitutional malice to defeat a qualified privilege need only be established by the plaintiff by a preponderance of evidence. Piskor, 277 Md. at 173 n. 5; Shapiro, 105 Md. App., at. 777-78 n. 11; Globe Security Systems v. Sterling, 79 Md. App. 303, 322 (1989).
"[M]alice means "a reckless disregard of truth, the use of unnecessarily abusive language, or other circumstances which would support a conclusion that the defendant acted in an ill-tempered manner or was motivated by ill-will.'" Orrison v. Vance, 262 Md. 285, 295 (1971) (citation omitted), overruled on other grounds, Marohesi, 283 Md. 131. Usually, it is for the fact — finder to determine whether the defendant acted deliberately or with reckless disregard of the truth or otherwise abused the privilege. Gohari, 363 Md. at 35; Bagwell, 106 Md. App. at 512; Exxon Corp. v. Schone, 67 Md. App. 412, 421 (1986)
The granting of a motion to dismiss on the basis of an asserted conditional privilege is not appropriate "where the complaint alleges tacts that would support an abuse of that privilege." Woodruff, 125 Md. App. at 403. A dismissal is appropriate, however, when the complaint fails to allege facts that would support an abuse of that privilege. Id.; Leese, 64 Md. App. at 476. Moreover, if the evidence demonstrates that the defendant had a reasonable basis for believing the truth of the statement, and there is no evidence of a lack of good faith, then the court must enter judgment in favor of the defendant. Bagwell, 106 Md. App. at 512; see Capital-Gazette Newspapers, Inc. v. Stack, 293 Md. 528, 540 (1982).
A. Counts I-III
We agree with the trial court that the Bank's alleged publication that appellant was discharged from employment does not, by itself, give rise to an action for defamation. Appellant was, in fact, discharged, and a true statement cannot support an action for defamation. See Batson, 325 Md. at 726 (stating that truth is a defense to a defamation action, and "[t]he burden of proving falsity is on the plaintiff"); Kiley v. First Nat'l Bank of Maryland, 102 Md. App. 317, 343 (1994) (concluding that defamation claim failed because, despite adverse implication caused by bank's dishonoring of two checks due to insufficient funds, the statements of insufficient funds were accurate), cert. denied, 338 Md. 116, 516 U.S. 866 (1995); Bagwell, 106 Md. App. at 510.
As we noted, appellant also claims that the Bank's publication of his discharge was defamatory because it implied an unfitness for employment and wrongful conduct. Appellant has not particularized any defamatory statements to support a claim that the Bank insinuated that the discharge was prompted by appellant's misconduct or unfitness. We decline to accept appellant's argument that mere publication of his termination imputed to him a general unfitness as an employee.
An employee's discharge, coupled with a defamatory and unprivileged statement, could possibly give rise to a claim for defamation. Under appellant's theory, however, any discharge would necessarily carry with it an implication that the discharge was based on misconduct or incompetence. If so, every employee who is terminated would have a claim for defamation. in effect, appellant's position would abrogate the employment-at-will doctrine, which permits an employer to terminate the employment relationship at any time for almost any reason. See, e.g., Adler v. American Standard Corp., 291 Md. 31, 35 (1981); Bagwell, 106 Md. App. at 490; Lee v. Denro, 91 Md. App. 822 (1992).
We also agree that the court properly granted the Bank's motion to dismiss on the ground that the alleged statements were protected by a conditional privilege applicable in the employment arena, and appellant did not allege facts in the complaint sufficient to defeat the privilege, we explain.
As we observed, appellant argues that he adequately plead sufficient facts to defeat a claim of qualified privilege in the posture of a motion to dismiss. By way of example, appellant maintains that the following "well-pled averments" were sufficient to overcome the qualified privilege as to defamation in Counts II and III:
71. The allegation that Plaintiff had thrown a pen at a supervisor was thus known by Defendant Schuler and Ms. Buchleitner to be false or, in the alternative, Defendant Schuler recklessly disregarded the falsity, and had a high degree of awareness of the probable falsity, of the allegation that Plaintiff had thrown a pen at a supervisor.
* * *
74. In the alternative, an employee of Defendant Chevy Chase other than Defendant Schuler — while acting within the scope of his/her employment, pursuant to authority delegated to him/her by Defendant Chevy Chase — knowingly and deliberately caused the above-described, bogus allegation of Ms. Buchleitner to remain in Plaintiff's employment records, although he or she knew the subject allegation was false or in the alternative, recklessly disregarded the falsity of the subject allegation, and did so for malicious purpose of injuring Plaintiff's reputation, employability, and prospects for advancement with Defendant Chevy Chase.
* * *
77. Subsequent to Plaintiff's above-described discharge, Defendant Hernandez disclosed to Plaintiff's former coworkers and subordinates in the Account Retention Department, that Plaintiff had been discharged, and that plaintiff was discharged for "instigating" the above described altercation with Defendant Ferguson, thus accusing Plaintiff of gross misconduct and imputing to him an inability to comport himself with accepted standards of conduct on the job. At the time she made the above-described disclosures, Defendant Hernandez knew or should have known that Plaintiff had not instigated the subject altercation, or, in the alternative, at the time she made the subject statement she had a high degree of awareness of its probable falsity.
* * *
85. Defendant Hernandez and Defendant Chevy Chase through Defendant Hernandez published to persons other than Plaintiff the false allegation ("the subject allegation"), at least by implication, that Plaintiff had been justly and properly discharged from the employ of Defendant Chevy Chase for having instigated the above described altercation with Defendant Ferguson, thus imputing to Plaintiff behavior that is unacceptable to every employer. In publishing the subject allegation as aforesaid, Defendant Hernandez knowingly and recklessly disregarded its falsity. . ..
* * *
87. As aforesaid, Defendant Schuler entered or procured the entry into Defendant Chevy Chase's records concerning Plaintiff the false and per se defamatory allegation that Plaintiff had thrown a pen at his supervisor, Carolyn Buchleitner. Despite a written agreement, memorialized by e-mail, that the allegation would be withdrawn and not repeated, Defendant Schuler never purged or deleted the subject allegation from the said records. As a proximate result of Defendant Schuler's failure to delete or purge the subject allegation from the records concerning Plaintiff, the subject allegation was republished, in a manner entirely foreseeable to Detendant Schuler, to Defendant Smith and, on information and belief, other employees of Detendant Chevy Chase and possibly persons not employed by Defendant Chevy Chase. Defendant Schuler failed to take or procure action to prevent republication of the subject allegation also she indicated to Plaintiff that she knew, and in fact she did know that the subject allegation was false, or, in the alternative, Defendant Schuler so failed to act to prevent republication of the subject allegation while recklessly disregarding the falsity of the subject allegation.
We agree with the circuit court that the allegations in the complaint were insufficient to overcome the employer-employee conditional privilege applicable to Counts I-III. By contrast, Woodruff v. Trepel, supra, 125 Md. App. 381, is instructive.
In Woodruff, the plaintiff alleged that his ex-wife and her attorney defamed him by accusing him of child abuse in a letter written to his attorney and then given by the ex-wife to the principal at the child's school. The letter provided: "From the transcript of the trial you have learned how your client physically abused and mistreated his daughter." Id. at 388. After Mr. Woodruff sued his former spouse and her lawyer for defamation, the defendants moved to dismiss, claiming the statements were protected by an absolute judicial privilege, the defense of truth, and conditional privileges. The circuit court granted the motion.
On appeal, we upheld the dismissal of the claims against Ms. Woodruff's attorney, based on an absolute judicial privilege. Id. at 619. As to Ms. Woodruff's assertions of conditional privilege, however, we reversed. What the Court said is instructive:
"[T]he plaintiff has the right notwithstanding the privileged character of the communication to go to the jury, if there be evidence tending to show actual malice, as when the words unreasonably impute crime, or the occasion of their utterance is such as to indicate, by its unnecessary publicity or otherwise, a purpose wrongfully to defame the plaintiff. . . . Or, malice may be established by showing that the publication contained matter not relevant to the occasion. Expressions in excess of what the occasion warrants do not per se take away the privilege, but such excess may be evidence of malice."
Id. at 402 (quoting Fresh v. Cutter, 73 Md. 87, 93-94 (1890)).
Further, the Court stated:
All relevant circumstances are admissible to determine whether there has been an abuse of a conditional privilege, "including the defendant's reasonable belief in the truth of his statements, the excessive nature of the language used, and whether the communication was made in a proper manner and only to proper parties."
Id. at 402-03 (quoting Orrison v. Vance, supra, 262 Md. at 295)
In concluding that appellant alleged sufficient facts to support a claim of abuse of the qualified privilege, Judge Adkins, writing for the Court, reasoned:
Mr. Woodruff alleged in the complaint that Mrs. Woodruff acted with actual malice in the republication to the school principal of [her lawyer's] letter. He supported this allegation with pertinent facts in his complaint. Accordingly, he had a right to have the trier of his case determine whether any conditional privilege held by Mrs. Woodruff was abused. His complaint should not have been dismissed at this stage of the proceedings on the grounds of a conditional privilege.
Id. at 403 (emphasis added)
Goharin, supra, 363 Md. 42 is also instructive. In that case, Gohari brought an action against Darvish, the owner and chief executive officer of Darcars Automotive Group, Gohari's former employer. Gohari alleged, inter alia, defamation, based on statements that the former employer made to an automobile franchisor from whom Gohari agreed to purchase a dealership. Before Gohari could successfully acquire the rights to the franchise, the franchisor inquired about his character, reputation, and his general ability to operate a dealership. In response to the inquiry, Gohari's former employer, an existing franchisee, opined that "Gohari lacked the experience, capacity and character to be considered a qualified candidate," and that Gohari "had suddenly left the DARCARS organization several months ago in an unprofessional manner and with no notice." Id. at 48. In addition, Darvish revealed that "there was questionable financial manipulation by Mr. Gohari to inflate his compensation. . . ." Id.
In his response to the suit, Darvish asserted that the communications were privileged. Nonetheless, the circuit court granted Gohari's motion to preclude Darvish from asserting a qualified privilege. After a six day trial, the jury found in favor of Gohari and awarded him $500,000.00 in compensatory damages for defamation as well as compensatory damages for tortious interference with contract. On appeal, this Court reversed, Darvish v. Gohari, 130 Md. App. 265 (2000), holding, inter alia, that Darvish "was entitled to assert the qualified privilege defense. . . ." Id. at 274.
The Court of Appeals agreed, stating that the record demonstrated the existence of a qualified privilege rooted in a common interest shared by Darvish and the potential franchisor "business and professional dealings". Id at 58 (citation omitted). Despite Darvish's right to assert a qualified privilege, however, the Court acknowledged that Gohari
"has the right notwithstanding the privileged character of the communication to go to the jury, if there be evidence tending to show actual malice, as where the words unreasonably impute crime, or the occasion of their utterance is such as to indicate, by its unnecessary publicity or otherwise, a purpose wrongfully to defame the plaintiff. . . . Or, malice may be established by showing that the publication contained matter not relevant to the occasion. . . . Expressions in excess of what the occasion warrants do not per se take away the privilege, but such evidence may be excess of malice. . . .
As we have seen, an abuse may result in the forfeiture of a qualified privilege. "The circumstances of each case are important in determining whether the publication to the particular recipient is within the current standards of socially desirable or at least permissible conduct." Restatement § 595 at 273; see Gohari, 363 Md. at 60 n. 15. In this case, the defamation counts are replete with conclusory words such as "knew or should have known" and "knowingly and recklessly disregarded its falsity." Unlike the plaintiff in Woodruff, however, appellant's complaint does not contain specific factual assertions that, it proved, show that the Bank or its agents had actual knowledge or recklessly disregarded the truth so as to defeat the privilege. See Phillips v. Washington Magazine, Inc., 58 Md. App. 30, 40 (1984) (stating that a plaintiff in a defamation case must do more than allege mere bald assertions of actual malice). Distilled to its essence, for example, Count III merely alleges an error in failing to expunge from appellant's employment records accusations that should have been deleted. There is no allegation in appellant's complaint, however, that the statements in his records were deliberately retained. In addition, appellant does not allege that Smith, the person who fired him, knew that the pen-throwing incident was bogus. See Bagwell, 106 Md. App. at 513 (stating that actual malice cannot be established merely by showing that the publication was erroneous, derogatory, untrue, or negligent) . Thus, reading the complaint in the light most favorable to appellant, as we are required to do, we are simply unable to interpret appellant's averments to allege the kind of abuse necessary to overcome the qualified privilege.
In addition, the Bank argues that Count III "fails to state a claim because the statement does not rise to the level of defamation per se, and appellant failed to plead any extrinsic facts or actual damages." We agree.
The distinction between defamation per se and defamation per quod is viable in Maryland. Hearst Corp., 297 Md. at 125 (citing IBEW, Local 1805 v. Mayo, 281 Md. 475 (1977)); Shapiro, 105 Md. App. at 773; Gooch, supra, 81 Md. App., at 393. The determination of whether an alleged defamatory statement is per se or per quod is a question of law. Shapiro 105 Md. App. at 773; Gooch, 81 Md. App. at 391 n. 8. In Metromedia, Inc. v. Hillman, 285 Md. 161 (1979), the Court explained both concepts:
"In the case of words or conduct actionable per se their injurious character is a self-evident fact of common knowledge of which the court takes judicial notice and need not be pleaded or proved. In the case of words or conduct actionable only per quod, the injurious effect must be established by allegations and proof of special damage and in such cases it is not only necessary to plead and show that the words or actions were defamatory, but it must also appear that such words or conduct caused actual damage."
Id. at 163-64 (citation omitted)
What the Court said in Kilgour v. Evening Star Co., 96 Md. 16, 23-24 (1902), also provides guidance:
"Words spoken of a person in his office, trade, profession, business or means of getting a livelihood, which tend to expose him to the hazard of losing his office, or which charge him with fraud, indirect dealings or incapacity and thereby tend to injure him in his trade, profession or business, are actionable without proof of special damage, even though such words if spoken or written of an ordinary person, might not be actionable per se."
It a statement is per quod, then the jury must decide whether the statement had a defamatory meaning. Helinski v. Rosenberg, 90 Md. App. 158, 165, rev'd on other grounds, 328 Md. 664 (1992), cert. denied, 509 U.S. 924 (1993) 509 U.S. 924 (1993) . With regard to a statement that is defamatory per se and made with actual malice, "a presumption of harm to reputation . . . arises from the publication. . . ." Hanlon v. Davis, 76 Md. App. 339, 356 (1988) (citing Hearst Corp., 297 Md. at 125-26); see Piskor, 277 Md. at 175. In that circumstance, general damages are presumed; actual harm need not be proved. Hearst Corp., 297 Md. at 125-26; Shapiro, 105 Md. App. at 774; Laws v. Thompson, 78 Md. App. 665, 685, cert. denied, 316 Md. 428 (1989) . But, even if the statement is defamatory per se, if the defendant was merely negligent in making the statement, the plaintiff must still prove actual damages in order to recover, Hearst Corp., supra, 297 Md. at 122; Jacron Sales Co., supra, 276 Md. at 590; Shapiro, 105 Md. App. at 774.
This Court's discussion of defamation per se in Leese v. Baltimore County, supra, 64 Md. App. 442, is also instructive. There, Leese was not promoted, and asserted, inter alia, that the county detained him by statements that were placed in his personnel records. The statements provided that Leese did not have a "demonstrated ability to assume a professional management role beyond daily operations," and that "due to [his] work history, the level and scope of positions for which he is eligible are restricted." Id. at 473. The plaintiff also claimed that he was injured because he was rejected for other positions with the county and was not employed in any capacity for over a year. Id. at 473. Prior to trial, the circuit court granted the defense motion to dismiss, stating:
A statement is defamatory if it exposes "the person (who is the subject of it) to public scorn, hatred, contempt or ridicule and thus injure[s] reputation." A written statement is libel per se when "the words themselves impute the defamatory character," And it is defamatory "to utter any slander or false tale of another which may impair or hurt his trade or livelyhood [sic]." Thus, a statement "that adversely affects [an employee's] fitness for the proper conduct of his business . . . [is] actionable per se at common law."
This is not to imply, however, that every negative evaluation of an employee's performance is potentially defamatory. Rather, "`[t]he words must go so far as to impute to him some incapacity or lack of due qualification to fill the position.'" Foley v. Hoffman, 188 Md. 273, 284 (1947) (quoting Kilgoiar v. Evening Star co., 96 Md. 16, 24-25 (1902) quoting Sillars v. Colher, 151 Mass. 50 (1890)). See also Bowie v. Evening News, 148 Md. 569 (1925) (implying that employee lacks honesty); Flaks v. Clark, 143 Md. 377 (1923) (had it been alleged that "he managed his said business improperly," it would have been defamatory). In other words, the defamatory statement must be such that "if true, would disqualify him or render him less fit properly to fulfill the duties incident to the special character assumed."
Id. at 473-74 (alterations in original) (internal citations omitted).
The Court concluded that the complaint set forth a claim for defamation per quod, 16. at 475, but not defamation per se. Id. at 474. It reasoned:
A statement that one has failed to demonstrate ability to assume a professional management role does not in and of itself charge lack of that ability. If the employment in question were of short duration, it might not impute any lack of qualification, but simply a need for more time on the job to develop the requisite ability. And if the job did not in fact involve a progressional management role it might not be derogatory at all. Similarly, the second statement, in and of itself, might have no adverse connotation. For example, if the work history were one of part-time employment at the employee's own request, there would be nothing defamatory about a comment that such a work history limited the scope of possible future hiring, we must, therefore, look for other allegations in the amended declaration in the context of which the statements might be deemed defamatory. In other words, we must look for innuendo that would establish libel per quod.
Id. at 474-75.
In the case sub judice, the alleged defamatory statements do not rise to the level of the defamatory statements found in the employment records in Leese. The per quod statements in Leese, which suggested that the employee did not demonstrate an ability to assume a professional management role and limited the positions for which he was eligible, were more likely to impair his trade or livelihood than would an allegation that appellant was discharged from employment or threw a pen at a supervisor. Indeed, the statements in Leese directly questioned the employee's ability to perform the job for which he was hired.
Accordingly, we conclude that the alleged defamatory statements in this case were per quod. Therefore, Gladhill was required to aver that the employer's words or conduct caused actual damages, and to allege the injurious effect of the statement by allegations of special damages. Clearly, appellant did not allege any actual damages, such as the inability to procure subsequent employment. See Metromedia v. Hillman, supra, 285 Md. at 172-73 ("Where extrinsic facts must be shown in order to establish the defamatory character of the words sued upon, the omission to plead them makes the complaint demurrable for failure to state a cause of action"); Gooch v. Maryland Mech. Sys., supra, 81 Md. App. at 395 (stating that when the communication is defamatory per quod, actual damages must be alleged and proved).
Moreover, even if the allegations, such as the "pen-throwing" incident, were defamatory per se, appellant was nonetheless required to prove actual damages unless the statements were made with actual malice. Hearst Corp., 297 Md. at 122; Shapiro, 105 Md. App. at 774. This he failed to do.
B. Count XII
As to Count XII, which concerned unemployment benefits, appellee argues: "The Circuit Court correctly dismissed Count XII for failure to state a claim upon which relief can be granted because the alleged defamatory statements are privileged by both statute and common law." We agree.
A communication by an employer to ESA is subject to a qualified statutory privilege under Md. Code (1991, 1999 Repl. Vol.), § 8-105 of the Labor Employment Article ("LYE."), titled: "Limitation on use of information." It provides:
Unless a report or other written or oral communication that is made or delivered in connection with this title is false and malicious, a person may not bring an action for abusive or wrongful discharge, libel, or slander based on the report or communication from:
(1) an employee to an employer; (2) an employer to an employee; or (3) an employee or an employer to the Secretary or Board of Appeals or any agent, employee, or representative of the Secretary or Board of Appeals.
Appellant maintains, inter alia, that the following "well-pled averments" overcome the qualified statutory privilege:
123. In response to Plaintiff's above-mentioned claim for unemployment compensation, Defendant Chevy Chase published and caused to be published to ESA the knowingly or recklessly false and per se defamatory allegation the Plaintiff had been fired for "fighting on the job," thus implying that Plaintiff was culpable for such "fighting, i.e., that Plaintiff had delivered physical blows to an opposing combatant.
124. In fact, Plaintiff was attacked as aforesaid by Defendant Ferguson and merely attempted to restrain Defendant Ferguson from striking Plaintiff. Thus Plaintiff did nothing wrong with respect to the altercation.Gay v. William Hill Manor, Inc., 74 Md. App. 51, cert. denied, 312 Md. 601 (1988), provides guidance. In that case, Gay, a nurse's aide, was fired by the nursing home for which she worked or allegedly covering the face of a difficult patient with a pillow. After her discharge, Gay filed a claim with ESA for unemployment insurance benefits. The employer disclosed that Gay had been terminated for "violation of Patient Bill of Rights which the facility follows, physical mistreatment of a resident, inciting disobedience to rules and regulations of the facility, and unsatisfactory work performance and attitude." Id. at 56. Thereafter, Gay filed suit against her former employer, alleging, inter alia, defamation. After the circuit court granted the employer's post-trial motion, Gay appealed. He argued that the report submitted to ESA was defamatory and beyond the scope of the employer's qualified privilege. The Court recognized that, pursuant to Md. Code, Art. 95A, § 12(g)(2), the predecessor to L.E. § 8-105, the report or communication could not be used as an underlying basis for a defamation suit, unless shown to be false and malicious. Id. at 56. Further, the Court ruled that it was unable to conclude that the employer's statement was made with malice," or that it "exceed[ed] the scope of its qualified privilege." Id. at. 57.
We conclude that the circuit court properly disposed of Count XII. Appellant's averments constitute conclusory assertions, such as "knowingly or recklessly false," but bald allegations that appellee's employees acted knowingly or with reckless disregard for the truth are insufficient to defeat the applicable statutory privilege.
Ordinarily, we might have considered whether appellant should have been given leave to amend to cure any deficiencies in the complaint regarding the defamation claims. At oral argument, however, appellant's counsel candidly conceded that she was unaware of any additional relevant facts that she could allege to cure ouch deficiencies, even if she were given the opportunity to amend.
IV. count VII (Invasion of Privacy — Publicity Given to Private Life)
Appellant argues that in Count VII he presented a "viable claim of invasion of privacy and placing Plaintiff in a `false light.'" Gladhill alleged that appellee invaded his privacy by disclosing to his former coworkers and subordinates "the matters concerning the circumstances and the tact of the termination of his subject employment."
Placing a person in a false light is a form of invasion of privacy. See Bagwell, 106 Md. App. at 513-14; Ostrzenski v. Siegel, 177 F.3d 245, 252 (4th cir. 1999); Restatement § 652E. Yet, appellant's argument is devoid of any discussion or "False Light" or of Restatement § 652E. Instead, appellant has discussed Restatement § 652D, titled "Publicity Given to Private Life." The first sentence of this argument reads ". . . Appellant submits that the common law provides an independent tort duty imposed upon Chevy Chase to refrain from excessive publication of `private facts.'" Because it appears to us that the substance of appellant's argument is based solely on Restatement § 652D, we shall analyze his contention accordingly.
The circuit court dismissed Count VII, reasoning that it was a contract claim disguised as a tort claim, and appellant "fail[ed] to raise any independent [tort] duty owed by Chevy Chase Bank beyond the contractual assurances of the Employee Handbook." Alternatively, the court reasoned that the statements giving rise to the invasion of privacy claim were protected by the employer-employee privilege for the defamation claim.
Chevy Chase levels a barrage of arguments in support of its contention that the trial court ruled correctly. The Bank claims "Count VII fails to state a claim for the tort of invasion of privacy." because the matters disclosed were, protected by the employer-employee privilege; were not highly offensive to a reasonable person; were not publicized within the meaning of the tort; and appellant's claim "is actually a breach of contract claim improperly disguised as a tort claim." Appellee also argues that appellant's claim for invasion of privacy fails because it is, in reality, a breach of contract claim.
Maryland recognizes an action for unwarranted invasion of privacy. Carr v. Watkins, 227 Md. 578 (1962). Four categories of conduct constituting the tort have been identified, including intrusion upon seclusion and publicity given to one's private life. See Pemberton v. Bethlehem Steel Corp., 66 Md. App. 133, 161 (1986). In Pemberton, 66 Md. App. at 163, the Court referred to the "branch" of the tort found in Restatement § 652(B), "the intentional intrusion upon the solitude or seclusion of another or his private affairs or concerns that would be highly offensive to a reasonable person." As to the category of "publicity given to private life," Restatement § 625D states:
One who gives publicity to a matter concerning the private live of another is subject to liability to the other for invasion of his privacy, if the matter is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
A plaintiff in a case involving public disclosure of private facts must prove that the matter disclosed was private in nature and that the disclosure was made to the public. See Hollander v. Lubow, 277 Md. 47, 57, cert. denied, 426 U.S. 936 (1976); Furman, 130 Md. APP. at 77-78. But,
"it is not an invasion of the right of privacy . . . to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons."
Restatement § 652D, cmt. a. elaborates on the publication requirement. It states:
The form of invasion of the right of privacy covered in this Section depends upon publicity given to the private life of the individual. "Publicity," as it is used in this Section, differs from "publication," as that term is used in § 577 in connection with liability for defamation. "Publication," in that sense, is a word of art, which includes any communication by the defendant to a third person. "Publicity," on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means it is one of a communication that reaches, or is sure to reach, the public, Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a. fact concerning the plaintiff's private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a. large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section. The distinction, in other words, is one between private and public communication.
With respect to Count VII, appellant seems to claim that the Bank breached the terms of the Employee Handbook, which he claims constituted a contract, because it agreed to keep confidential the circumstances of a termination. Appellee counters that Count VII was properly dismissed because Maryland distinguishes tort and contract claims. Appellee contends that appellant's complaint asserts an expectation of privacy based on "contractual assurances" created by the Bank's "Employee Handbook." Moreover, appellee argues that "the mere negligent breach of a contract, absent a duty or obligation imposed by law independent of that arising out of the contract itself, is not enough to sustain an action in tort." Heckrotte v. Riddle, 224 Md. 591., 595 (1961); see Rassa v. Rollins Protective Servs. Co, 30 F. Supp.2d 538, 541 (D. Md. 1998); Flow Indus. v. Fields Const. Co. 683 F. Supp. 527, 530 (D. Md. 1988) ("To hold . . . that a contractual relationship itself provides the duty of care necessary for the maintenance of a negligent misrepresentation claim would be to turn this principle into a syllogism.")
We have been unable to find the Employee Handbook in the Record or the Record Extract, nor do we know the terms of the Employee Handbook on which appellant relies.
Even if, arguendo, a claim for invasion of privacy may arise from an alleged breach of the terms of an employee handbook, see Household Fin. Corp v. Bridge, 252 Md. 531 (1969) (recognizing that, under certain circumstances, the harassment of a debtor through unreasonable collection methods could give rise to a claim for invasion of privacy), the employer-employee qualified privilege would also apply to an invasion of privacy claim. See Bagwell, 106 Md. App. at 514. Moreover, as we discussed earlier, in the context of the defamation claims, the allegations in the complaint are wholly insufficient to defeat the Bank's qualified privilege.
Alternatively, we agree with appellee that the matters disclosed were not publicized within the meaning of the tort. As discussed above, one does not disclose private facts, for the purpose of this tort, by communicating a fact concerning the plaintiffs private life to a single person, or even to a small group of persons. In the case sub judice, appellant alleged in his complaint that the Bank and Hernandez disclosed the facts and circumstances of appellant's discharge to "former coworkers and subordinates in the Account Retention Department." Although the record is unclear as to how many workers were employed in the Account Retention Department, the bank's disclosure of appellant's discharge to the employees in his department surely was not a "public" disclosure within the meaning of the tort.
In addition, even if the matters that were allegedly disclosed were publicized within the meaning of the tort, in order to be actionable the disclosure must be one that is "offensive and objectionable to a reasonable man of ordinary sensibilities." Kilpa, 54 Md. App. at 655. The crux of this requirement is that "[t]he law is not for the protection of the hypersensitive, and all of us must, to some reasonable extent, lead lives exposed to the public gaze." Id. The disclosure of appellants discharge to his fellow workers was hardly highly offensive.
Accordingly, we conclude that the circuit court properly dismissed Count VII of appellant's complaint.
III. Counts VIII, IX, and X (Negligent Hiring, Retention, and Supervision)
Count VIII alleged that Chevy chase "had a duty to Plaintiff and its other employees to provide a reasonable safe work place, i.e., one where employees were secure against physical attack." Appellant alleges that appellee breached this duty when it negligently hired and retained Ferguson, because the Bank "knew, or with reasonable diligence, would have known that (he] had a history of physical violence . . ." Count IX alleged that appellee, through Mercugliano, "had a duty to avoid placing Plaintiff in a position where his physical security was likely to be threatened, and "had a duty also to prevent Defendant Ferguson from orchestrating a situation in which he, Defendant Ferguson, could verbally threaten, and physically attack Plaintiff." Appellant further alleged that appellee breached these duties when it "negligently [failed] to discharge [its] responsibility to supervise Defendant Ferguson so as to provide Plaintiff with a reasonably safe working environment." Count XI alleged that the Bank, through Hernandez, "had a duty to Plaintiff and other similarly situated employees to provide, a reasonable sate work place. . . ." Appellant claimed that the bank "negligently failed [to supervise and] to insure that Defendant Mercugliano, as a subordinate supervisor, was fully aware of the proper role of the Human Resources Department of [appellee] in the resolution of personal disputes and conflicts between or among employees. . . ."
For each count, appellant generally alleges that he suffered "physical and psychological injury, and economic injury, including the injuries flowing from Plaintiff's discharge from his subject employment." In dismissing these counts, the trial court reasoned:
All of Plaintiff's alleged injuries stem from the acts of a covered employee, Mr. Ferguson, during the course of his employment. Therefore, plaintiff's negligent hiring, supervision, and retention claims against Chevy Chase Bank are dismissed as the [Maryland Workers' Compensation Act] provides the exclusive remedy for such claims.
On appeal, appellant argues that the circuit court erred in ruling that the Maryland Workers' Compensation Act (the "Act"), L.E. Title 9, preempts these tort actions against appellee. We perceive no error.
The Act entitles covered employees to compensation for occupational diseases or accidental injuries arising out of and in the course of employment. L.E. § 5 9-101 (b); 9-501, 9-502; see Means v. Baltimore County, 344 Md. 661, 664 (1997); Barnes v. Children's Hosp., 109 Md. App. 543, 553 (1996). It constitutes a "`comprehensive scheme to . . . provide sure and certain relief for injured workmen, their families and dependents regardless of questions of fault.'" Hastings v. Mechalske, 336 Md. 663, 672 (1994) (citations omitted) Under the Act, compensation is made "for loss of earning capacity, regardless of fault, resulting from accidental injury, disease, or death occurring in the course of employment." DeBusk v. Johns Hopkins Hosp., 342 Md. 432, 437 (1996); see Ametek, Inc. v. O'Connor, ___ Md. ___, No. 63, September Term 1999, slip op. at 12 (filed May 10, 2001); Philip Electronics North America v. Wright, 348 Md. 209, 215-16 (1997).
The term "accidental injury," as found in L.E. § 9-101, has been interpreted to mean " physical injury to the person caused by some unusual condition or occurrence in the employment." Le. v. Federated Dept. Stores, Inc., 80 Md. App. 89 (1989), aff'd, 324 Md. 71 (1991); see Baltimore Ohio R.R. Co. v. Zapf, 192 Md. 403, 410 (1948) (stating that "in Workmen's Compensation Law [the meaning of accidental injury] has been expanded to include any mischance resulting in physical injury to the bodily tissues. . . . ").
Ordinarily, under L.E. § 9-509(a), compensation pursuant to the Act is an injured employee's exclusive remedy with respect to the employer. The Great Atl. Pac. Tea Co., Inc. v. Imbraguglio, 346 Md. 573, 578 (1997); see Tynes v. Shoney's, Inc., 867 F. Supp. 330, 332 (D. Md. 1994). "Compensation awarded on this fault-free basis under the statutory plan substitutes for an employee's common law right to bring a fault-based tort suit against an employer for damages resulting from the employee's injury. . . ." DeBusk, 342 Md. at 348; see Belcher v. T. Rowe Price, 329 Md. 709, 736 (1993); Wagner v. Allied Chem. Corp., 623 F. Supp. 1412, 1414 (D. Md. 1985) . Because of the exclusivity provision of the Act, an employer is usually considered immune from an employee's suit for work-related injuries. Imbraguglio, 346 Md. at 578; Hastings, 336 Md. at 672. See L.E. § 9-509(a). The " quid pro quo" for absolute but limited compensation, unrelated to fault, is that employers are "relieved of the prospect of large damage verdicts often associated with litigation." Elmer H. Blair, Blair's Reference Guide to Workmen's Law, § 100.01, at 100-2 (Cum. Supp. 1990). The Act also benefits employers by enabling them to avoid "the disruption of business by burdensome lawsuits." Central GMC, Inc. v. Lagana, 120 Md. App. 195, 204 (1998).
§ 9-509. Exclusivity of Compensation
Coitered employees and dependents
Same Deliberate act
Although recovery pursuant to the Act is ordinarily an employee's "sole recourse" as against the employer, Imbraguglio, 346 Md. at 578, the Act preserves an employee's right to sue for damages under certain circumstances. In particular, the Act's remedies are not exclusive it an employee's injury is the result of the deliberate intention of the employer. See L.E. § 9-509(d). In that circumstance, the statute permits a worker to institute either a compensation claim against the employer pursuant to the Act, or, instead, a civil action against the employer to recover damages. In addition, when a worker is injured due to the negligence of a third-party, L.E. § 9-901 expressly provides that the injured employee has the option of 1) filing a compensation claim against the employer to recover benefits under the Act or 2) instituting a third-party damages action against the tortfeasor. Imbraguglio, 346 Md. at 583-84. Thus, the Act "neither excuses third-parties from their own negligence nor limits their liability." Imbraguglio, 346 Md. at 583.
A co-employee of an injured worker constitutes a third party for purposes of the Act; the Act "does not exclude tort actions between co-employees." Hutzell v. Boyer, 252 Md. 227, 232 (1969). On the other hand, a supervisory employee or corporate officer is generally not considered a co-employee for purposes of a third-party suit. Hastings, 336 Md. at 673.
As discussed above, appellant argues that the claims for negligent hiring, retention, and supervision are not within the scope of the Act, and thus are not preempted by it. He argues that the dismissal of Counts VII, IX, and X "deprived" him "of relief for his injuries [arising from] the negligent failure of Chevy Chase to supervise. . . ." In support of his contention, appellant quotes at length from Federated Dept. Stores, Inc. v. Le, 324 Md. 71 (1991). But, he omits from his brief any meaningful analysis, and we believe Gladhill's reliance on Le is misplaced.
Le sued his employer for the intentional torts of false arrest, infliction of emotional distress, and defamation, based on the conduct of a supervisory employee. The Court of Appeals considered whether the worker had a statutory right to bring a common law intentional tort action against the employer under Md. Code (1957, 1985 Repl. Vol., 1990 Cum. Supp.), Art. 101, § 44, the predecessor to L.E. § 9-509(d). It determined that Le's allegations were sufficient to support a tort suit against the employer, based on Le's allegations that the supervisor acted within the scope of employment in committing the intentional torts. Id. at 81, 86.
The case is noteworthy because, at the outset, the Court determined that it did not need to decide whether the worker's claim was covered by the exclusivity provision, then codified at Art. 101, § 15 of the Act, and now found in L.E. § 9-509(a). Id. at 79-80. It reasoned that if the claim was not covered under § 15, then the excluoivity provision "would have no application and the common law tort action could be maintained." Id. at 80. conversely, if the intentional tort claim was within the ambit of § 15, then the employee still had the option under § 44 of pursuing a common law intentional tort action against the employer for damages. Id. Thus, it appears to us that the Court declined to decide the very issue for which appellant cites the case.
With respect to whether appellant's alleged injuries tall within the ambit of the Act, Demby v. Preston Trucking Co., 961 F. Supp. 873 (D. Md. 1997), and several cases that it cites, are instructive. Demby, an African American, filed a suit against his employer alleging, inter alia, a hostile work environment on the basis of race under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and negligent supervision and retention of several of his coworkers. Dernby alleged that, due to several race-motivated incidents, the work environment caused an increase in his blood pressures caused him to "remain angry at his wife," and caused his son to perform poorly at school. Id. at 879. The employer moved for summary judgment. The court denied the motion with respect to the discrimination claims, Id. at 881, but granted summary judgment as to the negligent supervision and retention claims. The court reasoned, at 951 F. Supp. at 881:
[T]wo unreported opinions by this Court confirm Preston's position that this claim [for negligent supervision] is preempted by the Maryland Worker's Compensation Act, Md. Code Ann., Labor Employ. Art., § 9-501 et seq. (1991 Repl. Vol.). In LaGrimas v. Gossel, 1993 U.S. Dist. LEXIS 3783, 1993 WL 18951 (D. Md. Jan. 25, 1993) (mem.) (unpublished), Judge Hargrove held that with the exception of injuries caused by an employer's "`deliberate intent to injure or kill that covered employee,'" the Worker's Compensation Act provides the exclusive remedy to an employee "for an injury or death arising out of and in the course of employment." Id. at *3 (quoting Md. Code Ann., Labor Employ. Art., § 9-509(d)(2)) . Accordingly, Judge Hargrove dismissed the plaintiff's claim against her employer for negligence in failing to provide a safe workplace. Additionally, in Plater v. UE C Catalytic, Inc., 1992 U.S. Dist. LEXIS 20494, 1992 WL 414814 (D. Md. Oct. 14, 1992) (unpublished), the sole issue before judge Murray was whether the Worker's Compensation Act precluded the plaintiff from pursuing claims of negligent hiring, retention and supervision. Judge Murray concluded that the plaintiff's claims were indeed barred by to the worker's Compensation Act's exclusivity provisions. That Demby's claims are for dignitary injuries does not change the analysis.
In the case sub judice, appellant's complaint is devoid of any discussion of his injuries. Yet, the case arises from a physical altercation with a co-worker, in which appellant claims he was physically attacked and battered. As discussed above, with respect to appellant's claims for negligent hiring, retention, and supervision, he generally alleges that he "suffered . . . physical and psychological injury, and economic injury, including injuries flowing from [his] discharge from his subject employment." When we view the facts in the light most favorable to appellant, the injuries that may have resulted from the negligent hiring, retention, and supervision of appellant's co-worker led to appellant's physical or emotional injuries, which are ordinarily within the purview of the Act. Consequently, the court properly dismissed Counts VIII, IX, and X.
DISMISSAL, AFFIRMED AS TO COUNTS I, II, III, IV, VII, VIII, IX, X, XI, XII AGAINST CHEVY CHASE BANK, F.S.B.; CASE REMANDED TO THE CIRCUIT COURT FOR FREDERICK COUNTY FOR FURTHER PROCEEDINGS. COSTS TO BE PAID BY APPELLANT.