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A woman who says she was fired for complaining that a co-worker grabbed and kissed her is entitled to a new trial in her
lawsuit against her former employer, the Court of Special Appeals has held.
The decision reverses a defense verdict in Kathleen Gasper's suit against Ruffin Hotel Corporation of Maryland Inc.,
which runs the Courtyard by Marriott Gaithersburg-Lakeforest.
The judge at the first trial wrongly ruled that Gasper's allegation of negligent hiring was barred by workers'
compensation laws, and improperly instructed the jury that Gasper must prove retaliation was the "determining" factor in
her firing, the appellate panel held.
Gasper's claim that Ruffin was negligent in hiring and keeping the general manager who fired her is not covered by the
Workers' Compensation Act, which pre-empts lawsuits against an employer for most work-related injuries, the court held.
A negligent-hiring claim concerns "the employer's obligation to the public to use due care in selecting and retaining
only competent and careful employees," the court said. "We see no reason to abandon these general tort principles in
favor of preemption" under the Workers Compensation Act.
Gasper's attorney, Rebecca N. Strandberg, called the decision a victory for sexual-harassment victims, whose financial
losses and emotional injuries can be undervalued by the limited financial remedies available under Workers' Compensation.
Strandberg is the lead attorney at Rebecca N. Strandberg & Associates in Silver Spring.
Ruffin's attorney, Alan L. Rupe, did not return a telephone message seeking comment on the decision. Rupe is a partner
at Kutak Rock LLP in Wichita, Kan., where Ruffin's parent company is based. Ruffin denies the allegations of negligent
hiring.
A visiting professor at the University of Maryland School of Law, Deborah T. Eisenberg, said the appeals court was right
not to extend the Workers' Compensation Act to cover the financial loss and emotional pain resulting from sexual
harassment.
"There is a fine distinction" between physical and emotional injuries sustained on the job, said Eisenberg, who teaches
workers' rights law and is a partner at Brown, Goldstein & Levy LLP in Baltimore. "The court sees the difference pretty
clearly and correctly."
Wrong Standard
The trial court refused to allow evidence that Ruffin rehired Imran Ahmed as general manager even though it had previously
fired him for retaliating against another worker who had reported harassment, a ruling the appellate court affirmed.
However, the panel faulted a jury instruction that required Gasper to prove that her complaints were the "determining"
factor behind her firing. Instead, Gasper needed only to show that retaliation was a "motivating" factor in the termination,
which would shift the burden to Ruffin to show it had a legitimate basis for firing her, the court added.
Under federal and state law, bringing an allegation of sexual harassment to one's employer is a "protected activity,"
meaning that the employer cannot fire or otherwise punish the employee for simply making the complaint, the court said.
"We believe Maryland law to be settled that a plaintiff's burden is to prove that the exercise of his or her protected
activity was a 'motivating' factor in the discharge, thereby creating burden shifting to the defendant," Judge J.
Frederick Sharer wrote for the court. "An instruction that imposes upon a plaintiff the burden of proving that the
exercise of his or her protected activity was the 'determining' factor in the discharge from employment is a misstatement
of the law, and erroneous."
Judges Timothy E. Meredith and Robert A. Zarnoch joined Sharer's opinion. Sharer, a retired judge, was sitting by special
assignment.
In her lawsuit, Gasper claims Bridges grabbed her, pinned her against a wall and kissed her twice while he was assigned
to the hotel's front desk on Jan. 17, 2005.
Two days later, Gasper complained to her boss, Ahmed, about Bridges' behavior. But Ahmed told her the next day that he
would do nothing because Bridges had denied the allegation, Gasper claims.
When she subsequently submitted a written complaint to Ahmed, Gasper says, he responded by threatening to fire her.
She also alleges that Ahmed's treatment of her worsened after she called his boss in February 2005 to complain of Ahmed's
response to the harassment complaint. Ahmed would scream at her for failing to perform work he never assigned and he
excluded her from important meetings, she claims.
On March 14, 2005, Gasper sent an e-mail to the boss, with a copy to Ahmed, explaining what she called Ahmed's acts of
retaliation for having complained of sexual harassment. Ahmed fired Gasper the next day, she says.
Gasper sued Ruffin, alleging employment discrimination, sexual harassment, retaliatory discharge and negligent hiring
and retention. On Dec. 7, 2006, the Montgomery County Circuit Court dismissed the negligent-hiring claim as barred by
the Workers' Compensation Act. A jury ruled for the company on the other claims on May 22, 2007.
Gasper appealed the judge's dismissal of her negligent-hiring claim and the jury's rejection of her retaliatory-discharge
allegation.
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Workers' comp law no bar to negligent-hiring claim!