INTRODUCTION TO LEGAL THINKING AND WRITING Make-Up Assignment

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MEMORANDUM

TO: Supervising Attorney Frank Gender

FROM: Natalie Havlina

RE: Potential Action: Julia Sewell v. SunnySide Acres Equestrian Centers, Inc.

DATE: October 31, 2003

I. Question Presented

Under the common law of Maryland, did the employer wrongfully discharge an

employee when it discharged a veterinarian for refusing to perform a surgical procedure she

believed would endanger both the horse and the horse’s rider?

II. Brief Answer

Probably not. The courts are unlikely to find that the employee’s discharge contravened

a clear mandate of public policy in the absence of a supporting statute.

III. Discussion

In Maryland, an employment contract of indefinite duration, or a contract “at-will,” can

be terminated by either employer or employee for any reason. The Court of Appeals has

recognized a narrow exception to the at-will doctrine in cases where the motivation for

discharging the employee violates a clear mandate of public policy. Adler v. American Standard

Corporation, 432 A.2d 464, 8 (Md. 1981). Cases following Adler have identified two elements

that our client must satisfy in order to state a cause of action of wrongful discharge. First, the

employee must identify a relevant mandate of public policy. Second, the employee must prove

that the motivation for his or her discharge contravened the relevant mandate of public policy.

While the motivation for Dr. Sewell’s discharge is apparent, it is uncertain that the motivation

for her discharge contravened a recognized public policy of the state of Maryland.

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The courts have found that the discharge of an at-will employee contravened a clear

mandate of pubic policy in three categories of cases. In the first category, the employer

discharged the employee for refusing to violate the rights of a third party. Kessler v. Equity

Management, Inc., 572 A.2d 1144 (Md.App. 1990). In the second category, the employer

discharged the employee for performing a duty prescribed by statute. Bleich v. Florence

Crittenton Services of Baltimore, Inc., 632 A.2d 463 (Md.App. 1993). In the third category, the

employer discharged the employee in clear violation of a ubiquitous public policy. Molesworth

v. Brandon, 672 A.2d 608 (Md. 1996). Maryland courts are unlikely to expand any of the three

categories to include Dr. Sewell’s case.

Wrongful Discharge. Maryland recognizes the tort of wrongful discharge in cases when

the motivation for the discharge contravenes a public policy. Adler, 432 A.2d at 8. In Adler, an

at-will employee alleged that he was discharged for disclosing illegal activities in his employer’s

corporation. The court held that “Maryland does recognize a cause of action for abusive

discharge by an employer of an at-will employee when the motivation for the discharge

contravenes some clear mandate of public policy.” Id. at 8. The court held that Adler himself

had no cause of action because he did not specify the corporation’s illegal activities and failed to

identify which laws his employers had violated. Id. at 6. Though Maryland recognizes the tort of

wrongful discharge, it is only available as a remedy when a mandate of public policy has been

violated.

Refusal to Violate the Rights of a Third Party. The discharge of an at-will employee

violates public policy if the employer discharged the employee for refusing to violate the rights

of a third party. Kessler v. Equity Management, Inc., 572 A.2d at 7. In Kessler, the employer

discharged the employee for refusing to trespass in apartments owned by the employer in order

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to examine tenants’ private papers. Kessler’s employer asked her to commit the tort of trespass

and to violate the tenants’ right to privacy provided in the Fourth Amendment of the United

States Constitution. The court held that Kessler stated a cause of action because “violations of

state or federal constitutions are actionable wrongs.” Id. at 6. Following Kessler, an employer

may not discharge an employee for refusing to infringe upon the rights of a third party.

Like the employee in Kessler, Dr. Sewell was discharged for refusing to violate the rights

of a third party. Sunnyside’s President, Anna Bagnold, was adamant that an elderly horse, Dixie

Lady, compete in the upcoming Junior Jumper Show. Dr. Sewell was concerned that allowing

Dixie Lady to compete would place both the horse and her rider, twelve-year-old Alisa Smith, in

unnecessary danger. Had she followed Bagnold’s direction, Dr. Sewell would have put Smith at

risk of injury, infringing upon Smith’s right to bodily safety. Dr. Sewell’s refusal to violate the

rights of a third party caused her to lose her job.

SunnySide may argue that Bagnold did not ask Dr. Sewell to infringe upon a

constitutional right. Unlike the right to privacy, the right to bodily safety is not codified in either

the federal or the state constitution. Moreover, the procedure Bagnold wanted Dr. Sewell to

perform was a common treatment for horses. Bagnold requested nothing tortious when she

directed Dr. Sewell to treat Dixie Lady in the manner Bagnold preferred. Following this line of

analysis, Sunnyside did not direct Dr. Sewell to violate a right accepted as public policy.

The courts will probably refuse to acknowledge the right to safety as a public policy. The

Kessler court does not expressly confine violations of public policy to torts that violate the

constitution, but it does not explain which other torts, if any, violate public policy. Maryland

courts have been reluctant to expand the application of wrongful discharge, particularly in the

absence of an explicit statement in either a statute or constitution. See Bagwell v. Peninsula

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Regional Medical Center, 665 A.2d 297, 6 (Md.App. 1995), (society’s interest in “ensuring that

all police officers are allowed to fulfill their official duties” not a public policy for the purposes

of wrongful discharge); Lee v. Denro Inc., 605 A.2d 1017, 4 (Md.App. 1992), (“promotion of

maximum achievable safety in air transportation” not considered public policy absent violation

of a statute). Given the courts’ reluctance to accept the pervasive goals of society as public

policy, Dr. Sewell can probably not state a cause of action based on her refusal to endanger

Smith.

Performance of a Statutory Duty. Maryland courts have also held that the discharge of

an at-will employee contravenes public policy if the employer discharged the employee for

performing a duty mandated by statute. Bleich, 632 A.2d at 7. In Bleich, the employee had an

express duty as an educator to report child abuse to the appropriate authorities under the Family

Law Article. When Bleich was discharged shortly after making such a report, the court held that

“this was enough to state the basis for a cause of action for wrongful discharge.” Id. at 6.

Discharging an employee for performing a duty mandated by statute violates public policy.

Like the employee in Bleich, Dr. Sewell was discharged for performing her duty. The

Federal Code of Regulations mandates that “each dealer shall have an attending veterinarian who

shall provide adequate medical care to its animals.” As Sunnyside’s attending veterinarian, Dr.

Sewell had a duty to provide adequate veterinary care to Dixie Lady. Though the Federal Code

does not define “adequate veterinary care,” it defines “attending veterinarian” as “a person who

has graduated from a veterinary school accredited by the American Veterinary Medical

Association’s Council on Education.” This definition implies that Dr. Sewell must comply with

the standards of the American Veterinary Medical Association. The AVMA’s Principles of

Veterinary Medical Ethics mandates that “all decisions that affect [. . .] treatment of patients are

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made by veterinarians.” Bagnold directed Dr. Sewell to perform a neurectomy on Dixie Lady. In

Dr. Sewell’s opinion, however, a neurectomy was not the correct treatment for Dixie Lady. It

was her duty to refuse to perform a treatment she considered inappropriate. Sunnyside terminated

Dr. Sewell’s employment because she complied with a duty mandated by the Federal Code.

SunnySide may contend that federal regulations do not express Maryland public policy.

The Federal District Court has noted that “Maryland courts, however, have given no indication

that federal regulations or consent decrees constitute Maryland public policy.” Szaller v.

American National Red Cross, 293 F.3d 148, 4 (F.3d 2002). Though the Kessler court accepted

the United States Constitution as a manifestation of public policy, the Constitution is admittedly

more binding upon the states than are federal legislative enactments. Maryland courts have

given no indication they will accept federal sources as manifestations of Maryland public policy.

It is uncertain if Maryland courts will extend the scope of wrongful discharge to

encompass violations of federal regulations. In Lee, the court “[assumed] without deciding

[emphasis added] that an employee can base a claim for wrongful discharge under Maryland law

on an asserted violation of public policy exhibited by violation of federal statutes.” Lee, 605

A.2d at 5. Also, the court’s analysis in Bleich recognizes that state regulations can be considered

public policy. The Bleich court discusses the Maryland Family Law Article and the regulations

set in place to implement it interchangeably. Bleich, 632 A.2d at 5. Maryland, however, has yet

to accept any federal source, with the exception of the Constitution, as Maryland public policy.

The courts’ empiric reluctance to expand their conception of public policy makes it unlikely they

will do so in this case.

Sunnyside may also argue that Dr. Sewell’s duty under the Federal Code is not

sufficiently specific to be considered a public policy. The relevant statute in Bleich, the Family

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Law Article, details the steps an educator is to take prior to filing a report and the information to

be included in the report. Id. at 5. In contrast, the Federal Code defines neither the “authority” to

be given a veterinarian, nor the “adequate care” he or she is to provide. Most importantly, the

code does not mandate that the veterinarian disregard the wishes of the animal’s owner in favor

of his or her professional judgment when the two conflict. Dr. Sewell had no specific duty under

the Federal Code to disobey her employer.

The courts will probably find that Dr. Sewell’s duty prescribed in the Federal Code is not

sufficiently specific to provide her with a cause of action. Maryland courts have held that the

employee’s duty must be specific in order to provide him or her with a cause of action. See

Bagwell, 665 A.2d at 6 (duty of a Special Police Officer to “protect the peace and order on the

property he was appointed to protect” not sufficiently specific to state a cause of action).

Admittedly, the AVMA specifically provides “the choice of treatments or animal care should not

be influenced by considerations other than the needs of the patient, the welfare of the client and

the safety of the public.” Maryland courts, however, are unlikely to consider the mandates of a

private organization to be public policy.

Violation of a Ubiquitous Public Policy. In some cases, a public policy may be so

pervasive as to be undeniable. Molesworth v.Brandon, 672 A.2d at 7. In Molesworth, the

employee alleged that she was discharged because she was a woman. Her employer argued that,

as a small business, it was exempt from the mandates of the Fair Employment Practices Act. Id.

at 3. The court determined that Maryland’s public policy in favor of equal employment

opportunity was sufficiently clear to provide Molesworth with a cause of action. The court

noted, “Maryland’s public policy against sex discrimination is ubiquitous. [The Fair

Employment Practices Act] is one of at least thirty-four statutes, one executive order and one

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constitutional amendment in Maryland that prohibits discrimination based on sex.” Id. at 5.

Maryland has an undeniable public policy proscribing discrimination on the basis of sex.

Sunnyside discharged Dr. Sewell in violation of Maryland’s policy proscribing medical

malpractice. Dr. Sewell’s duty of care as a veterinarian required her to prescribe only those

treatments she deemed appropriate. If she had followed Bagnold’s instructions, she would have

acted against her better judgment, an action amounting to malpractice. Under the common law,

malpractice is an actionable wrong. There are probably far more than thirty-four Maryland

judicial opinions condemning malpractice. Arguably, Maryland’s proscription of malpractice

and promotion of medical ethics is as clear a policy as it’s proscription of discrimination and

promotion of equal opportunity.

Sunnyside will doubtlessly argue that Dr. Sewell’s case is distinguishable from

Molesworth. The promotion of medical ethics has not been codified in statute to the extent that

has equal opportunity. Additionally, the Fair Employment Practices Act specifically forbids an

employer from discharging an employee on the basis of sex. Id. at 3. In contrast, the relevant

language of the Federal Code does not specify any circumstances where a dealer may not

discharge a veterinarian. The foregoing distinction between Molesworth and Dr. Sewell’s case is

probably significant. Dr. Sewell cannot base her claim on a public policy articulated in statute.

Nor can she rely on a principle of the common law. While the Adler court recognized prior

judicial decisions as a source of public policy, Adler, 432 A.2d at 7, subsequent courts have been

reluctant to accept anything as public policy unless it is specifically articulated by statute. Given

their reluctance in the past, it is unlikely courts in the future will act on the Adler court’s

declaration and extend the concept of public policy to include ubiquitous principles of the

common law.

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“Nexus” between discharge and public policy. In addition to identifying a relevant

public policy, an employee bringing suit “must nonetheless demonstrate a ‘nexus’ between the

discharge and the policy.” Bagwell, 665 A.2d at 6. In Bagwell, a hospital security guard was

discharged for striking a disruptive patient. Bagwell contended that he was fulfilling his duty as

prescribed by Art 41 §4-905 in attempting to maintain order. However, the court found that he

“failed to generate any evidence with respect to [. . .] whether the reason Peninsula fired him was

for carrying out his duty.” Id. at 6. The employer argued, and the court concurred, that striking

patients is not part of a Special Police Officer’s duty. Id. at 6. The employee must show a

connection between the public policy and his or her discharge.

There is a clear connection between Dr. Sewell’s discharge and the policy articulated in

the Federal Code of Regulations. Dr. Sewell refused to perform a neurectomy on Dixie Lady

because she did not believe it was the best treatment for the horse. During the meeting at which

she discharged Dr. Sewell, Bagnold insisted, “a neurectomy would have properly treated Dixie

Lady’s condition and relieved her discomfort.” It will not be difficult to establish a connection

between Dr. Sewell’s discharge and the policy articulated in the Federal Code.

IV. Conclusion

Maryland recognizes the tort of wrongful discharge only in cases where the employee’s

discharge contravened a clear mandate of public policy. Although Dr. Sewell’s discharge

contravened the policy expressed in the Federal Code of Regulations, Maryland courts will

probably not expand their conception of public policy to include Dr. Sewell’s case. First,

Maryland courts are unlikely to expand the Kessler holding to include employees who refuse to

violate a third party’s right to bodily security. Second, the courts are unlikely to expand their

conception of public policy to include federal regulations. Furthermore, Dr. Sewell’s duty

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mandated in the Federal Code is probably too general to state a cause of action following Bleich.

Third, Maryland courts will probably not expand the Molesworth holding to include ubiquitous

principles of the common law. Though there is a possibility the courts will grant Dr. Sewell a

cause of action, past holdings indicate expansion of the tort of wrongful discharge is improbable.