Please ensure Javascript is enabled for purposes of website accessibility

Fired manager can sue hotel for hiring her supervisor

The Maryland Workers’ Compensation Act does not bar a lawsuit by a woman who says her supervisor fired her for complaining that a co-worker grabbed her and kissed her, the state’s top court held.

The Court of Appeals revived Kathleen Gasper’s claims of employment discrimination, sexual harassment and negligent hiring and retention against Ruffin Hotel Corp. of Maryland Inc., which runs the Courtyard by Marriott Gaithersburg-Lakeforest.

A lower court had dismissed Gasper’s negligent hiring and retention claims before trial, saying her sole avenue for relief on those claims would be to file for workers’ compensation benefits.

The Court of Appeals called that conclusion “unreasonable in the extreme.”

Monday’s opinion also faulted the jury instructions given by the judge who presided over the trial of Gasper’s lawsuit, which resulted in a win for Ruffin on her other claims in 2007.

“There’s a public policy which is enforced by the holding,” said Gasper’s attorney, Rebecca N. Strandberg, lead counsel at Rebecca N. Strandberg & Associates in Silver Spring. “You should not discriminate [and] you should not retaliate.”

The financial losses and emotional injuries of sexual-harassment victims are undervalued by the limited financial remedies available under workers’ compensation law, she said.

But Jason D. Stitt, an attorney for Ruffin, said the high court failed to recognize that workers’ compensation covers emotional injuries resulting from “negligence within the course of employment.”

Gasper’s claim of negligent hiring and retention falls within that category, added Stitt, of Kutak Rock LLP in Wichita, Kan., where Ruffin’s parent company is based.

Ruffin contended Gasper was fired for being hostile, abrasive and insubordinate, according to the Court of Appeals’ opinion.

In her lawsuit, though, Gasper claims that General Manager Imran Ahmed fired her for complaining about the actions of the front-desk manager, James Bridges.

Gasper alleges that 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 Ahmed, her boss, 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 submitted a written complaint to Ahmed, he responded by threatening to fire her, says Gasper, who was an assistant general manager at the hotel.

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 email to Ahmed’s boss, with a copy to Ahmed.

Ahmed fired her the next day, Gasper says.

She filed suit in Montgomery County Circuit Court for $1 million in compensatory and punitive damages and about $100,000 in lost wages, alleging employment discrimination, sexual harassment and retaliatory discharge.

Her negligent hiring and retention claims were based “upon information and belief” that Ruffin had terminated Ahmed in 2002 after “many employees” had complained of abusive behavior by him, but then rehired him as general manager and left him in a supervisory role in which he would have to investigate such claims.

Judge Michael D. Mason dismissed the negligent hiring and retention claims in December 2006, ruling they were covered by the exclusive remedy provisions of the workers’ compensation act.

The rest of Gasper’s claims went to a trial in 2007, resulting in a defense win.

An intermediate appellate panel reversed in 2008, and Ruffin petitioned the Court of Appeals for review.

Shifting burden

Monday’s unanimous decision, which affirmed the Court of Special Appeals’ holding, also clarified that the rule that bars evidence of a criminal defendant’s “prior bad acts” is not directly applicable to civil litigation.

On the jury instructions, the Court of Appeals noted that Judge Terrence J. McGann misstated Gasper’s burden by saying she had to prove retaliation was the “determining” factor in her firing.

Gasper need only 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 of Appeals said.

On the exclusive-remedy issue, the court looked to the legislature’s intent.

“We reject the proposition that the General Assembly intended that the Workers’ Compensation Commission is the exclusive forum in which a negligent hiring/retention claim must be litigated whenever such a claim is asserted by an employee against his or her employer as a result of intentional and unlawful misconduct of a fellow employee,” Judge Joseph F. Murphy Jr. wrote for the high court.

WHAT THE COURT HELD

Case:

Ruffin Hotel Corporation of Maryland Inc. v. Gasper, CA No. 24, Sept. Term 2009. Reported. Opinion by Murphy, J. Filed March 21, 2011.

Issue:

Is a negligent hiring claim pre-empted by the Maryland Workers’ Compensation Act? To prove illegal retaliation, must the plaintiff show retaliation was a determining factor in her termination?

Holding:

No, affirmed. (1) Negligent hiring is based on general tort principles that can be litigated in court regardless of the MWCA. (2) Plaintiff need only show that retaliation was a “motivating” factor in termination for the claim to survive.

Counsel:

Alan L. Rupe for petitioner; Rebecca N. Strandberg and Julie Glass Martin-Korb for respondent.

RecordFax # 11-0321-20