Employee Fired for Consulting An Attorney Cannot Sue For Wrongful Discharge

Date: February 20, 2002

In the recent case of Porterfield v. Mascari II, Inc., (Md. Ct. of Special Appeals, January, 2002) a female employee who consulted a lawyer after receiving a written warning for poor performance, and, as a result, was fired, cannot maintain a cause of action for wrongful discharge.

On August 30, 1999, Ms. Porterfield was issued a written “Employee Warning Report” stating that she would be discharged if her employer did not see “marked improvement [in her job performance] at the end of the next four weeks.” The employer demanded that Porterfield sign the warning report but she declined, telling her employer she was taking the report home to review it. On August 31, 1999, Porterfield phoned her employer and stated: “Due to the seriousness of the libel contained in the document, I have been advised to seek counsel before formally responding.” Later the same day, her employer called back and stated: “Julie gave me your message. I think it is time we part company. It will not be necessary [for you] to return to the office.”

In Maryland, a cause of action for wrongful discharge does not lie unless the “motivation for the discharge contravenes some clear mandate of public policy.” Adler v. American Standard Corp., 291 Md. 31, 47 (1981). According to the Court, “for the tort of wrongful discharge, the public policy in question must be a preexisting, unambiguous, and particularized pronouncement, by constitution, enactment, or prior judicial decision, directing, prohibiting, or protecting the conduct in question so as to make the public policy on the relevant topic not a matter of conjecture or interpretation. In reviewing cases cited by counsel, the Court noted that Maryland case law has held that terminating an employee from employment for exercising a general right of free speech did not give rise to liability for wrongful discharge. In these free speech cases, the Court concluded that while there may be a general right to engage in certain activity, even if the activity is favored by public policy, it does not necessarily follow that the right to pursue the activity equates with the right to remain employed and converts a non-actionable termination of employment to an actionable one.

The Court then referred to the case of Watson v. Peoples Security Life Insurance Co., 322 Md. 467, (1991) where the Court of Appeals of Maryland, the state’s highest court, held that absent a statute expressing a clear mandate of public policy, there is ordinarily no violation of public policy when an employer discharges an at-will employee in retaliation for the employee having sued the employer. The Court found the decision in the Watson case to be controlling, concluding that termination of employment for exercising a general right to consult counsel, with or without the intention of exploring a possible lawsuit against the employer, does not violate public policy and therefore a suit for wrongful discharge must fail.

While the decisions in Porterfield and Watson are highly favorable from the employer’s point of view, they do not stand for a complete carte blanche to fire an employee any time that employee consults with counsel. For example, what about a female employee’s consulting an attorney in regard to the possible filing, with the EEOC, of a charge of sexual harassment against her employer? Such discharge would no doubt be found to be retaliation under Title VII of the Civil Rights Act and would constitute illegal conduct. Likewise, an employee who consults an attorney in regard to filing a worker’s compensation claim would most likely be protected, as well.

The final point: any decision to terminate an employee for consulting an attorney should first be reviewed by counsel prior to taking final action!