Opinion
Civil No. JFM-01-1984
September 17, 2001
MEMORANDUM
Plaintiff has brought this action for employment discrimination and various common law torts. Defendant has filed a motion to dismiss or for summary judgment. The motion will be granted.
1. Title VII Claim
Under Title VII a person may bring a court action after having received a right-to-sue letter from the EEOC or after 180 days has passed without the EEOC issuing a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1). Plaintiff filed her administrative complaint on April 11, 2001. The earliest that she can bring this action is October 8, 2001 (unless the EEOC earlier has issued a right-to-sue letter, which it has not). Accordingly, plaintiff's Title VII claim is premature.
2. Claim Under Article 49B, Section 16 of the Maryland Code
Plaintiff now concedes that she cannot bring a private action under section 16, of Article 49B of the Maryland Code. See Pritchett v. General Motors Corp., 650 F. Supp. 758, 761 (D.Md. 1986). She alleges that she mispled this claim and meant to assert a claim under section 42 of Article 49B for violations of the Montgomery County code.
Plaintiff has not, however, requested leave to file an amended complaint. Accordingly, plaintiff's claim under Section 16 of Article 49B will be dismissed without prejudice to plaintiff attempting to state a claim for violations of the Montgomery County code if and when she chooses to refile her complaint after she has received a right-to-sue notice from the EEOC or after 180 days have passed after the filing of her administrative claim.
3. Wrongful Termination Claim
Plaintiff may not file a common law claim for wrongful termination under Maryland law where, as here, she has statutory remedy. Pritchett, 650 F. Supp. at 761; Hart v. Harbor Court Assoc., 46 F. Supp.2d 441, 444 (D.Md. 1999). Molesworth v. Brandon, 672 A.2d 608 (Md. 1996), relied upon by plaintiff, is not on point since there the defendant employer had fewer than 15 employees and therefore was not covered by anti-discrimination statutes.
Watson v. Peoples Security Life Ins. Co., 588 A.2d 760 (Md. 1991) is equally inapposite. There, the plaintiff was permitted to pursue a wrongful discharge claim not on the ground that she complained about employment discrimination as such, but on the ground that she alleged that she had been discharged in retaliation for seeking legal redress against a co-worker because of sexual harassment that included assault and battery. 588 A.2d at 767. Indeed, the Maryland Court of Appeals noted that the defendant could not be liable for a wrongful discharge claim based upon a claim for a sexually hostile work environment since such a claim may be pursued under Title VII. Id. at 766.
Plaintiff further contends that she may bring a wrongful discharge claim because she "exercised her right to claim compensation for the entire amount of time worked on behalf of her employer" as she was entitled to do under Maryland's Wage Payment and Collection Act, Md. Code Ann., Lab. Emp. §§ 3-502, et. seq. This is an imaginative reading of what occurred. Defendant's articulated basis for terminating plaintiff's employment was that she had falsified her time records and thus committed theft against it. Whether or not that accusation was correct, plaintiff has alleged no facts that suggest that this asserted reason for discharging plaintiff was a pretext to retaliate against her because she was asking for her full wages. Thus, no public policy is implicated that would warrant entertaining a wrongful discharge claim.
4. Malicious Prosecution Claim
Plaintiff alleges that defendant initiated criminal charges against her for theft in the Montgomery County District Court. These charges were nolle prossed, and similar charges were then instituted in the Circuit Court for Montgomery County. Plaintiff has cited no authority to support her contention that a nolle prosse is a termination of the prosecution in her favor so as to give rise to the tort of malicious prosecution. In any event, until and unless the charges pending against her in the Montgomery County Circuit Court are terminated in her favor, any claim for malicious prosecution is premature.
5. Claim for Intentional Infliction of Emotional Distress
Plaintiff has failed to plead any particular facts that defendant either committed conduct against her that was "extreme and outrageous" or that the resulting emotional distress she suffered was "severe." Accordingly, she has not stated a viable claim for intentional infliction of emotional distress. See Silkworth v. Ryder Truck, Inc., 520 A.2d 1124, 1128 (Md.App.) cert. denied, 526 A.2d 954 (1987).
In her opposition memorandum plaintiff has requested leave to file an amended complaint but she has not moved for leave to file an amended complaint. Under these circumstances, as with her claim under Article 49B of the Maryland Code, her claim for intentional infliction of emotional distress will be dismissed without prejudice to her attempting to restate the claim if and when she refiles her complaint under Title VII.
A separate order effecting the rulings made in this memorandum is being entered herewith.
ORDER
For the reasons stated in the accompanying memorandum, it is, this 17th day of September 2001
ORDERED
1. Defendant's motion to dismiss or for summary judgment is treated as one to dismiss and, as such, is granted;
2. Plaintiff's claim under Title VII is dismissed without prejudice;
3. Plaintiff's claim under Section 16 of Article 49B of the Maryland Code is dismissed with prejudice;
4. Plaintiff's claim for wrongful discharge is dismissed with prejudice;
5. Plaintiff's claim for malicious prosecution is dismissed without prejudice; and
6. Plaintiff's claim for intentional infliction of emotional distress is dismissed with prejudice.