Internal Corporate Complaint Sufficient for Wrongful Termination Claim

The Maryland Court of Appeals in Lark v. Montgomery Hospice, Inc., 2010 Md. LEXIS 192 (Md. May 13, 2010), an action under the Maryland Health Care Worker Whistleblower Protection Act (Health OCC. §§ 1-501 – 1-506), held that an employee who complained internally about misconduct but was terminated prior to reporting the alleged wrongdoing to the appropriate state agency, could pursue a claim under that statute as it expressly protects an employee who “threatens to disclose” as well as an employee who actually discloses.  § 1-502(1).

After stating that conclusion, the Court (Judge Murphy writing for Chief Judge Bell and Judges Harrell, Battaglia, Greene, Raker, and Cathell) goes on for numerous pages, citing case after case after case from other state and federal courts recognizing as cognizable whistleblower claims based on internal corporate complaints.  Id. at *25-43 (citing Fox v. Dist. of Columbia, 83 F.3d 1491 (D.C. Cir. 1996); Marques v. Fitzgerald, 99 F.3d 1 (1st Cir. 1996); Sullivan v. Massachusetts Mut. Life Ins. Co., 802 F. Supp. 716, 723 (D. Conn. 1992); Murcott v. Best Western Int’l, Inc., 9 P.3d 1088, 1098 (Ariz. Ct. App. 2000); Collier v. Superior Court, 228 Cal. App. 3d 1117 (Cal. Ct. App. 1991); Carty v. Suter Co., 863 N.E.2d 771 (Ill. App. Ct. 2007); Shea v. Emmanuel Coll., 682 N.E.2d 1348 (Mass. 1997); Appeal of Bio Energy Corp., 607 A.2d 606 (N.H. 1992); Barker v. State Ins. Fund, 40 P.3d 463 (Okla. 2001); Babick v. Oregon Arena Corp., 40 P.3d 1059, 1061-62 (Or. 2002); Love v. Polk County Fire Dist., 149 P.3d 199 (Or. Ct. App. 2006)).

Nowhere does the court discuss its opinion in Wholey v. Sears Roebuck and Co., 370 Md. 38, 803 A.2d 482 (2002), aff’ing 139 Md. App. 642, 779 A.2d 408 (2001), holding that an internal complaint of suspected criminal activity was insufficient to support a claim for wrongful discharge in violation of public policy, seemingly conflicting with the holding of many of the cases cited by the Court.  In the Wholey opinion, Judge Battaglia, writing for herself and Judges Cathell and Harrell, with Judge Raker writing a concurrence joined by Judge Wilner, and with Judge Eldridge filing a dissent in which Chief Judge Bell joined, stated as follows: 

“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. . . .  In the limited times that the Legislature has enacted whistle-blower protection to protect private employees, the protection is only valid when the employee/whistle-blower reports the suspect activity externally. . . .  We believe a corresponding common law cause of action must also require external reporting to the appropriate law enforcement authorities.” 

One must wonder whether the Lark string citations signals that the Court is prepared to backtrack from the broad language of Wholey.

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