William D. Quarles

MEMORANDUM OPINION

Debbie Nesbitt sued the University of Maryland Medical System ("UMMS"), Baltimore Washington Medical Center, Inc. ("BWMC"), and Frank V. Venuto (collectively, the "defendants") for employment discrimination and other claims. Pending are the defendants' motion to dismiss for failure to state a claim and Nesbitt's unopposed motion for leave to file a surreply. ECF Nos. 19, 23. No hearing is necessary. Local Rule 105.6 (D. Md. 2011). For the following reasons, the defendants' motion will be granted in part and denied in part, and Nesbitt's motion will be granted. I. Background

Nesbitt, who was born in 1952, was hired by BWMC--a hospital owned and operated by UMMS--as a Human Resources ("HR") Recruiter on August 5, 1996. ECF No. 18 ¶¶ 9-11. On May 12, 2008, Venuto was hired as vice president of the HR Division. Id. ¶ 14.

Soon after Venuto started, he began refusing to respond to Nesbitt's emails and avoided discussing work matters with her by initiating telephone calls when she was in his office. Id. ¶ 15. At meetings Venuto often interrupted Nesbitt, responded to her condescendingly, and refused to acknowledge Nesbitt when she volunteered to assist with a project. Id. ¶¶ 16-17. This occurred "continuously and persistently on a weekly basis." Id. ¶ 16. At one point, he interrupted Nesbitt while she was talking during a staff meeting by "exclaiming out loud 'you are killing me!'" Id. ¶ 17. Venuto permitted younger male workers unlimited time to speak during meetings and gave them positive feedback. Id. ¶¶ 22-23. Venuto also accused Nesbitt in a staff meeting of "looking at his butt;" the Director of HR, Patricia Loughlin, told Venuto that he was incorrect. Id. ¶ 18. Nesbitt was "extremely embarrass[ed]" by the accusation. Id.

"Over time, [Venuto's] conduct" became "increasingly aggressive"--at least 12 incidents occurred in which Venuto "attempted to bully, intimidate and demean" Nesbitt "by yelling at her in front of other staff members over routine work-related matters." Id. ¶ 19. In April 2009, during a meeting with Loughlin and Nesbitt, Venuto "became very angry" with Nesbitt and "started yelling and physically shaking." Id. ¶ 20. He "condescending[ly]" told her "'Let me tell you something dear, I have covered your back'" and stated, without explanation, that he had been "'tasked with firing'" her "when he was hired." Id.

In May 2009, Venuto "yell[ed] at and berate[d] other female employees over work-related matters" during a staff meeting. Id. ¶ 21. However, Venuto did not "yell[] at[,] . . . belittle, undermine, or embarrass" male employees during the weekly meetings. Id. Instead, he "allow[ed] them unlimited time to discuss work related matters" and "provid[ed] positive feedback to their questions." Id. He also treated younger employees more favorably--he was "consistently dismissive" toward Nesbitt and the other older women employees, but "more receptive" to younger employees, such as Dan Neal. Id. ¶ 23. On at least 10 other occasions, Nesbitt witnessed female employees crying after Venuto yelled at them. Id. ¶ 24.

Venuto's treatment of Nesbitt caused her anxiety and physical symptoms, requiring her to take medical leave from June 2009 until August 2009. Id. ¶ 26. When Nesbitt returned to work, Venuto "began to give ther] work assignments to younger employees." Id. He also continued to yell at her and interrupt her at meetings on a weekly basis, while treating male employees more favorably. Id.

On October 12, 2009, Nesbitt filed an internal complaint against Venuto, alleging hostile work environment and discrimination. Id. ¶ 29. UMMS and BWMC did not take any corrective action after investigating Nesbitt's complaint, but the president and general counsel of UMMS asked Loughlin to "use her friendship" with Nesbitt to discourage her from taking legal action or complaining to the Equal Employment Opportunity Commission ("EEOC"). Id. ¶¶ 29, 34.

In the meantime, Venuto's "persistent, hostile and discriminatory conduct" continued on a weekly basis. Id. ¶ 30. In January 2010, Venuto yelled at and threatened Nesbitt and three other female employees "over a work-related issue." Id. ¶ 31. Nesbitt again began to suffer from anxiety and physical symptoms. Id. ¶ 32. On January 22, 2010, Nesbitt complained to UMMS's president and general counsel about Venuto's behavior. Id. ¶ 33. On January 27, 2010, Nesbitt was terminated by BWMC's president because of her complaints about Venuto. Id. ¶ 34. This termination violated BWMC's written progressive discipline policy because Nesbitt had not received any prior warnings or other disciplinary steps, and was the first time in 40 years that BWMC had not applied the policy in a case other than egregious employee misconduct. Id. ¶¶ 12, 36-37. Nesbitt refused a severance agreement offered in exchange for agreeing not to sue. Id. ¶ 34. On June 2, 2010, Nesbitt filed a charge with the EEOC against BWMC and UMMS, and, on June 29, 2012, received her right to sue letter. Id. ¶¶ 7-8; see ECF No. 2-1.

On September 21, 2012, Nesbitt filed suit in the Circuit Court for Anne Arundel County, Maryland alleging (1) hostile work environment (against UMMS and BWMC) (counts one and two), (2) disparate discipline (UMMS and BWMC) (counts three and four), (3) retaliation (UMMS and BWMC) (counts five and six), (4) breach of contract (BWMC) (count seven), (5) intentional infliction of emotional distress ("IIED") (Venuto) (count eight), (6) respondeat superior intentional infliction of emotional distress (UMMS and BWMC) (count nine), and (7) abusive discharge (UMMS and BWMC) (count ten). ECF Nos. 2, 18. On January 11, 2013, the defendants removed to this Court. ECF No. 1.

On January 18, 2013, the defendants answered Counts III and IV and moved to dismiss the remaining claims. ECF Nos. 10, 11. On March 7, 2013, Nesbitt moved unopposed for leave to file an amended complaint. ECF No. 15. On May 14, 2013, the Court granted Nesbitt leave to file an amended complaint and denied the motion to dismiss as moot. ECF No. 16. On May 14, 2013, Nesbitt filed an amended complaint. ECF No. 18.

On May 28, 2013, the defendants moved to dismiss counts one through four and eight through ten of the amended complaint. ECF No. 19. On June 14, 2013, Nesbitt opposed the motion. ECF No. 21. On July 1, 2013, the defendants replied. ECF No. 22. On August 20, 2013, Nesbitt moved unopposed for leave to file a surreply. ECF No. 23. II. Analysis

A. Legal Standard for Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), an action may be dismissed for failure to state a claim upon which relief can be granted. Rule 12(b)(6) tests the legal sufficiency of a complaint, but does not "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

The Court bears in mind that Rule 8(a)(2) requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Migdal v. Rows Price-Fleming Int'l, Inc., 248 F.3d 321, 325-26 (4th Cir. 2001). Although Rule 8's notice-pleading requirements are "not onerous," the plaintiff must allege facts that support each element of the claim advanced. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir. 2003). These facts must be sufficient to "State a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

This requires that the plaintiff do more than "plead[] facts that are 'merely consistent with a defendant's liability;'" the facts pled must "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). The complaint must not only allege but also "show" that the plaintiff is entitled to relief. Id. at 679 (internal quotation marks omitted). "Whe[n] the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not shown--that the pleader is entitled to relief." Id. (internal quotation marks and alteration omitted).

B. Hostile Work Environment

Title VII prohibits an employer from discriminating against, an employee because of sex. 42 U.S.C. § 2000e-2(a)(1). Under the ADEA, an employer may not "discharge any individual or otherwise discriminate against any individual with respect to . . . privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). A plaintiff may plead a hostile work environment claim under these statutes.

To state a hostile work environment claim, the plaintiff must allege facts showing that the offending conduct was: (1) unwelcome; (2) based on sex or age; (3) subjectively and objectively severe or pervasive enough to alter the plaintiff's conditions of employment and create an abusive atmosphere; and (4) imputable to the employer. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001); Baqir, 434 F.3d at 745-46; Alston v. N. Carolina A & T State Univ., 304 F. Supp. 2d 774, 779 (M.D.N.C. 2004).

1. Continuing Violation

The defendants contend that Nesbitt cannot base her hostile work environment claims on actions that took place more than 300, days before she filed her EEOC charge on June 2, 2010--events before August 6, 2009--because "she has not properly invoked the continuing violation doctrine." ECF No. 19-1 at 14. Nesbittasserts that "the Amended Complaint contains sufficient factual allegations of a continuous course of harassment up to Plaintiff's termination." ECF No. 21-1 at 10.

Under the continuing violation theory, "[i]f one act in a continuous history of discriminatory conduct falls within the charge filing period, then acts that are plausibly or sufficiently related to that act, which fall outside the filing period, may be considered for purposes of liability." Lewis v. Norfolk S. Corp., 271 F. Supp. 2d 807, 812 (E.D. Va. 2003). The continuing violation theory applies to hostile work environment claims, which are "composed of a series of separate acts that collectively constitute one unlawful employment practice" and are timely if "cin[y] act contributing to the claim occur [red] within the filing period." Nat'l R.R. Passenger Corp. v. Morgan, 534 U.S. 101, 117 (2002) ("It does not matter . . . that some of the component acts of the [claim] fall outside the statutory time period."). The acts that occur within the filing period need not, standing alone, constitute a violation of Title VII for the continuing violation doctrine to apply. See Gilliam v. S. Carolina Dep't Of Juvenile Justice, 474 F.3d 134, 141 (4th Cir. 2007).

Nesbitt alleges that, in January 2010, Venuto "yelled, berated, and threatened Plaintiff and three other female HR Recruiters over a work-related issue." ECF No. 18 ¶ 31. She also alleges that, after her return from medical leave in August 2009, Venuto reassigned Nesbitt's work to younger employees and "his hostile behavior . . . including the yelling, berating, and repeated interruptions and demeaning comments during staff meetings[] persisted on a weekly basis up to her termination." Id. ¶ 26. The defendants concede that events taking place after August 6, 2009 are within the charge filing period and are timely. See ECF No. 19-1 at 14-15. These allegations of conduct after August 6, 2009, are sufficiently related to allegations of conduct before that date, which accuse Venuto primarily of yelling at Nesbitt, interrupting her while she spoke at meetings, "demean[ing]" her with "inappropriate" and "condescending" comments, and treating male and younger employees more favorably than older women like Nesbitt. ECF No. 18 ¶¶ 16-24; see, e.g., Gilliam, 474 F.3d at 141 (concluding that the continuing violation doctrine applied to supervisor reprimands outside the charge filing period, because plaintiff made allegations of similar reprimands occurring within the filing period). Accordingly, all of Nesbitt's allegations about Venuto's conduct may be considered in analyzing whether she has established a hostile work environment claim, because the continuing violation doctrine applies.

2. Stating a Claim

a. Based on Sex and Age

The defendants assert that Nesbitt failed to establish that "the supposed unlawful conduct was based on her membership in a protected class." ECF No. 19-1 at 18. Nesbitt contends that her "allegations raise the reasonable inference that 'but for' Plaintiff's gender and age, she would not have been subjected to Defendant Venuto's conduct." ECF No. 21-1 at 14.

To establish that the conduct was based on age or sex, the plaintiff must show that "but for" her age or sex, she "would not have been the victim of the alleged discrimination." Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998); Hartsell v. Duplex Products, Inc., 123 F.3d 766, 772 (4th Cir. 1997). Sex-based or age-based animosity can be shown by direct evidence of discrimination, or differential treatment of similarly situated younger or male employees. See Gilliam, 474 F.3d at 142; Causey, 162 F.3d at 801-02.

Nesbitt alleged that Venuto "yelled at[,] . . . belittle[d], undermine[d], [and] embarrass[ed] her," and other female employees, at staff meetings, but he did not treat male employees that way. ECF No. 18 ¶ 22. She alleged that she often witnessed female employees crying after being bullied by Venuto and that she had to seek professional help to deal with her anxiety and stress caused by Venuto's conduct. Id. ¶¶ 24-26. Although Nesbitt has not alleged any direct or indirect evidence of intentional sex discrimination, such as comments made by Venuto specifically related to her sex, she has alleged that he treated similarly situated male employees more favorably than female employees by, inter alia, not yelling at male employees during staff meetings. Similarly, Nesbitt alleged that Venuto yelled at older female employees, while treating a similarly situated younger male employee outside the protected class with respect.Taken as true, these allegations raise the reasonable inference that Venuto acted out of sex-based and age-based animosity.

b. Severe or Pervasive

The defendants assert that Nesbitt's allegations "do not rise to the level of an objectively hostile work environment." ECF No. 19-1 at 22. Nesbitt contends that her allegations of Venuto's "continuous[] and persistent[] . . . severe and unwelcome conduct" directed at her and other older female employees were sufficient to state a hostile work environment claim. See ECF No. 21-1 at 14.

In determining whether the offending conduct was sufficiently severe or pervasive to alter the plaintiff's employment conditions and create an abusive environment, the Court may consider "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Sunbelt Rentals, 521 F.3d at 315. The plaintiff must show more than simple teasing, offhand remarks, and isolated incidents (unless "extremely serious"). Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L.Ed.2d 662 (1998).

Nesbitt has alleged that Venuto interrupted Nesbitt while she was speaking, "respond[ed] to [her] comments in a condescending manner," and yelled at her "in front of other staff members" on at least 12 separate occasions over an approximately one-year period. ECF No. 18 ¶¶ 16, 18. After she returned from a medical leave that allegedly resulted from her anxiety and stress caused by Venuto's behavior, Venuto continued "yelling, berating, and repeated[ly] interrupt[ing]" her and making "demeaning comments during staff meetings." Id. ¶¶ 25-26. Nesbitt alleges that the conduct occurred on "a weekly basis" during regular staff meetings and was often directed at other older female employees in addition to her. See id. ¶¶ 26, 31. Also, on at least two occasions, Venuto made comments to Nesbitt that a reasonable jury might objectively consider humiliating--telling her that her comments were "killing" him and accusing her of looking at his butt--especially considering that both comments were made in the presence of Nesbitt's co- workers at staff meetings. Id. ¶¶ 17-18. Although each incident alleged by Nesbitt, standing alone, is likely not severe enough to establish a hostile work environment, the pervasiveness of Venuto's alleged misconduct suffices to state a hostile work environment claim. See Caldwell v. Leavitt, 378 F. Supp. 2d 639, 661 (M.D.N.C. 2005) aff'd in part, rev'd in part on other grounds sub nom. Caldwell v. Johnson, 289 F. App'x 579 (4th Cir. 2008) (finding that supervisor's discrimin"atory conduct was "severe or pervasive," in part, because he "constantly screamed and yelled at the female scientists, berated them, and attempted to silence them at branch meetings"). The defendants' motion to dismiss Nesbitt's hostile work environment claim will be denied.

C. Disparate Discipline

Nesbitt alleges that she was discriminated against under Title VII and the ADEA, because the BWMC terminated her in response to her complaints about Venuto's conduct instead of following its written progressive discipline policy. See ECF No. 18 ¶¶ 59-76. She alleges that she was the first employee in 40 years, who had not engaged in egregious misconduct, that BWMC terminated without applying its progressive discipline procedures. Id. ¶¶ 37, 72.

To state a claim for discriminatory disparate discipline under Title VII or the ADEA, Plaintiff must allege: "(1) she is a member of a protected class, (2) the prohibited conduct in which she engaged was comparable in seriousness to that of employees outside the protected class; and (3) the disciplinary action taken against her was more severe than the action taken against other employees." Jones, 2010 WL 3677017, at *8-*9; Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993). Nesbitt must show that similarly situated male and younger employees outside the protected class "acted in substantially the same manner, yet received a lesser degree of punishment." If the plaintiff uses comparators "from the same protected class, then any discrepancy in discipline is not attributable to plaintiff's membership in that class." Allen v. Dorchester Cnty., Md., CIV.A. ELH-11-01936, 2013 WL 5442415, at *15 (D. Md. Sept. 30, 2013) (citing Booth v. Maryland, 327 F.3d 377, 383 (4th Cir. 2003)).

Nesbitt alleges that she was terminated because she made several complaints about Venuto's conduct, and that the defendants terminated no other employee without using progressive disciplinary measures, except in egregious cases. ECF No. 18 ¶¶ 34, 37. However, Nesbitt does not allege that any other similarly situated employee outside her protected class engaged in comparable conduct--i.e., repeatedly complaining about a supervisor. See, e.g., id. ¶ 37; Jenks, 495 F. Supp. 2d at 528. Further, Nesbitt alleges that no other employee was disciplined like her--her comparators thus include older and younger employees and male and female employees. See ECF 18 ¶ 37. Accordingly, her allegations do not create an inference that the disparate discipline she received resulted from discrimination. Allen, 2013 WL 5442415, at *15. Nesbitt's disparate discipline claims will be dismissed.

D. Retaliation

1. Motion for Leave to File a Surreply

In their reply brief, the defendants, for the first time, argue that Nesbitt's retaliation claims "should be dismissed," because she alleged that her complaints about Venuto were a "motivating factor" in her termination. ECF No. 22 at 15-16. They assert that the recent Supreme Court decision, University of Texas Southwest Medical Center v. Nassar, 133 S. Ct. 2517, 2522, 186 L. Ed. 2d 503 (2013), requires a Title VII plaintiff to prove that her protected activity was the "but for" cause of her termination, not just a motivating factor. See id.

Nesbitt has moved for leave to file a surreply to respond to the defendants' arguments about her retaliation claims. ECF No. 23. Unless otherwise ordered by the Court, a party may not file a surreply. Local Rule 105.2(a) (D. Md. 2012). "Surreplies may be permitted when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply." Khoury v. Meserve, 268 F, Supp. 2d 600, 605 (D. Md. 2003), aff'd, 85 Fed. App'x 960 (4th Cir. 2004). Because Nesbitt seeks to oppose arguments that the defendants raised for the first time in their reply brief, her motion for leave to file a surreply will be granted.

2. Retaliation Claim

To state a prima facie retaliation claim under Title VII or the ADEA, the plaintiff must show: (1) protected activity, (2) "materially" adverse employment action; and (3) a causal connection between the protected activity and materially adverse action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006); Bryant v. Aiken Reg'l Med. Ctrs. Inc., 333 F.3d 536, 543 (4th Cir. 2003); Johnson v. Mechanics & Farmers Bank, 309 F. App'x 675, 684 (4th Cir. 2009). A "materially" adverse action is one that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington, 548 U.S. at 68, 126 S. Ct. 2405; see also Harman v. Unisys Corp., 356 Fed. Appx. 638, 641 (4th Cir. 2009). If the employer takes the action "shortly after" learning about the protected activity, courts may infer a causal connection between the two. Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004).

Nassar holds that a plaintiff "must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer," not just a "motivating factor" to establish the causation element of a retaliation claim. See 133 S. Ct. at 2533-34. Nesbitt repeatedly alleges that her protected activity was a "motivating factor" in her discharge but does not allege that, but-for her complaints, she would not have been discharged. See, e.g., ECF No. 18 ¶ 91. She requests leave to amend the complaint to remedy this deficiency, see ECF No. 23-1 at 3, and the defendants do not oppose this request.

Federal Rule of Civil Procedure 15Ca)(2) instructs that leave to amend should be freely given when justice requires. Leave should be denied only when amendment would prejudice the opposing party, amount to futility, or reward the movant's bad faith. Steinburg v. Chesterfield Cnty. Planning Comm'n, 527 F.3d 377, 390 (4th Cir. 2008). Nesbitt does not seek leave to amend in bad faith--she seeks it in response to the defendants' late-raised argument opposing her retaliation claim--and the amendment is not obviously futile or prejudicial to the defendants. Thus, the defendants' request to dismiss Nesbitt's retaliation claims is moot, because Nesbitt will be granted leave to amend counts five and six of her complaint.

E. State Law Claims

1. Intentional Infliction of Emotional Distress

Nesbitt brings two claims of IIED under Maryland common law. ECF No. 18 at 18-20. Nesbitt alleges that "as a result of [Venuto's] persistent, intentional and reckless conduct," she "suffered severe emotional distress." Id. ¶ 102. She also alleges that "Venuto's conduct was committed within the scope of his employment with" UMMS and BWMC and with their authorization. Id. ¶¶ 111-12. The defendants contend that Nesbitt's allegations of Venuto's conduct, taken as true, do not rise to the level of extreme and outrageous conduct required to state an IIED claim. See ECF No. 19-1 at 30-31.

To state a claim for IIED, the complaint must show that the defendant intentionally or recklessly engaged in conduct that was extreme and outrageous, and the wrongful conduct caused the plaintiff severe emotional distress. Batson v. Shiflett, 325 Md. 584, 733, 602 A.2d 1191, 1216 (1992). The conduct must be "SO extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. at 734, 1216. Each element "must be satisfied completely before a cause of action will lie." Hamilton v. Ford Motor Credit Co., 66 Md. App. 46, 502 A.2d 1057, 1063 (Md.Ct.Spec.App. 1986). "IIED claims are rarely viable in a case brought under Maryland law," Takacs v. Fiore, 473 F. Supp. 2d 647, 652 (D. Md. 2007) (internal quotation marks omitted), especially in workplace harassment cases, see Arbabi v. Fred Meyers, Inc., 205 F. Supp. 2d 462, 466 (D. Md. 2002).

Nesbitt alleges that Venuto yelled at her, ignored her, belittled her, and accused her of looking at his butt. See, e.g., ECF No. 18 ¶¶ 15, 18-19. Although these actions allegedly caused Nesbitt distress, and created a disagreeable work environment, they do not come close to establishing the requisite extreme and outrageous conduct required to state an IIED claim.

Because Nesbitt did not state an IIED claim against Venuto, Nesbitt cannot state a claim that UMMS and BWMC are vicariously liable for Venuto's conduct under the doctrine of respondeat superior. Cf. S. Mgmt. Corp. v. Taha, 378 Md. 461, 481, 836 A.2d 627, 638 (2003) ("[Employer] cannot be held liable for the tort of malicious prosecution under the doctrine of respondeat superior without evidentiary proof that one of its employees, acting within the scope of that person's employment duties, engaged in conduct sufficient to form a prima facie case of malicious prosecution."). Nesbitt's IIED claims will be dismissed.

2. Abusive Discharge

In Maryland, an at-will employee can raise a wrongful discharge claim only if his termination violated a "clear mandate of public policy." Adler v. Am. Standard Corp., 432 A.3d 464, 473 (Md. 1981). To state a claim for wrongful discharge, a plaintiff must show: "(1) that [s]he was discharged; (2) that the dismissal violated some clear mandate of public policy; and (3) that there is a nexus between the defendant and the decision to fire [her]." Shapiro v. Massengill, 105 Md. App. 743, 661 A.2d 202, 213 (Md.Ct.Spec.App. 1995). The plaintiff must demonstrate the public policy with "clarity, specificity, and authority." Id. Ordinarily the plaintiff must show the employer "violated the legal rule at issue[,] punished the employee for exercising some legal right[,]" or discharged the employee for "refusing to violate the law, or . . . the legal rights of some third party." McIntyre v. Guild, Inc., 105 Md. App. 332, 344, 659 A.2d 398, 404 (1995).

Nesbitt alleges that Venuto's "abusive, bullying conduct" violated three "clear mandate[s] of public policy" as expressed in an unenacted Maryland State Senate bill, a judicial decision, and a provision of the Maryland criminal code prohibiting harassment in public places. See ECF No. 18 ¶ 123. However, Nesbitt's dismissal must violate public policy--she alleges that she was dismissed because she complained about Venuto's allegedly discriminatory conduct, which is protected activity under Title VII and Maryland statutory law. See Chappell v. S. Maryland Hasp., Inc., 320 Md. 483, 496, 578 A.2d 766, 773 (1990) ("[It] is clear that [plaintiff] can pursue a remedy under both the state and federal anti-discrimination statutes for his discharge from employment for apprising his employer of allegedly discriminatory employment practices."). A cause of action for abusive discharge does not lie when the discharge was "motivated by employment discrimination prohibited by Title VII and [Maryland statutory law] ." Makovi, 316 Md. at 626, 561 A.2d at 189 (denying relief to plaintiff alleging that her discharge was motivated by sex discrimination, because "the generally accepted reason for recognizing the tort [of abusive discharge], that of vindicating an otherwise civilly unremedied public policy violation, does not apply"); Chappell, 320 Md. at 496, 578 A.2d at 773.

Nesbitt also alleges that the defendants terminated her "in part, to cover up the nature and degree of [Venuto's] intimidating and bullying conduct." See ECF No. 18 ¶ 224. Although Nesbitt identifies Senate Bill 999 as creating a clear mandate of public policy against workplace bullying, the Bill has not been enacted. Maryland law ordinarily confines "the scope of such mandates in the wrongful discharge context to 'clear and articulable principles of law,'" which are generally derived only from "prescribed constitutional or statutory mandates" and occasionally judicial decisions. See Newell v. Runnels, 407 Md. 578, 646, 967 A.2d 729, 769 (2009); e.g., Wholey v. Sears Roebuck, 370 Md. 38, 71, 803 A.2d 482, 501 (2002) (noting that judicial declarations of public policy are done "cautiously" and should be "carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions"). Because this Senate Bill declares policy that has not been enacted by the Maryland legislature into law, standing alone it cannot support an abusive discharge claim. See Porterfieid v. Mascari II, Inc., Md. 402, 418, 823 A.2d 590, 599 (2003) ("[T]he establishment of an otherwise undeclared public policy as a basis for a judicial decision involves the application of a very nebulous concept to the facts of a given case, and that declaration of public policy is normally the function of the legislative branch.") (quoting-Wholey, 370 Md. at 54, 803 A.2d at 491 (internal quotations omitted) ).

Finally, Nesbitt alleges that her termination violated the clear policy mandate expressed in Maryland criminal harassment law. See ECF No. 18 ¶ 123. However, even if Nesbitt could establish that Venuto's conduct was criminal harassment, §3-803 does not express a public policy mandate against "covering up" harassment, nor does it provide protection for employees who report criminal harassment to their employers. See, e.g., Wholey, 139 Md. App. at 658, 779 A.2d at 417 (denying claim when plaintiff was terminated for reporting another employee's theft, because the Maryland theft statute "does not impose on citizens a duty to investigate or report theft"); Wholey, 370 Md. at 62, 803 A.2d at 496 ("To qualify for the public policy exception to at-will employment, the employee must report the suspected criminal activity to the appropriate law enforcement or judicial official, not merely investigate suspected wrong-doing and discuss that investigation with co-employees or supervisors."). Accordingly, Nesbitt's abusive discharge claim will be dismissed. III. Conclusion

For the reasons stated above, the defendants' motion to dismiss will be granted in part, and denied in part, and the plaintiff's motion for leave to file a surreply will be granted.

________________________

William D. Quarles, Jr.

United States District Judge