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Magee v. Dansources Technical Services3/28/2001
nterpreting and applying Makovi and Watson, the Insignia Court considered whether an abusive discharge claim may be based on an employee's allegations of "quid pro quo" sexual harassment. The plaintiff had alleged that an Insignia official discharged her because she refused to have sex with him. The Insignia Court acknowledged that the plaintiff had a clear remedy available to her under Title VII, but held that the "Makovi rule" was not a bar to her abusive discharge claim. It held that the employee's distinctive allegations that the co-worker demanded sex in exchange for employment favors were sufficient to state a "Watson exception," based on the existence of an alternative public policy mandate against prostitution, for which the plaintiff had no civil remedy.
The statute precluding prostitution and attempts to induce or coerce women and men into engaging in prostitution represents a clear mandate of public policy that is violated when an at-will employee is discharged for refusing to engage in conduct that would constitute prostitution . . . . The fact that both the inducements themselves and a discharge for rejecting them may constitute a violation of the Federal and State employment discrimination laws does not require that we ignore that such conduct also violates the entirely separate, independently based, public policy embodied in § 15. Ms. Ashton's action for abusive discharge is not precluded by Makovi; it is authorized by Watson. Id. at 573.
In this case, we must consider whether the "Makovi rule" applies to bar Magee's abusive discharge claim - in other words, do all three of the public policy mandates that Magee cites as grounds for her abusive discharge claim arise from statutes that otherwise offer her civil redress? For the reasons discussed below, we agree with DTSI that Magee cannot escape the Makovi rule under two of her three alternative grounds for her abusive discharge claim. With respect to the one ground that survives the Makovi rule, we find that Magee has offered sufficient evidence of a causal connection between the policy and the discharge.
2. Overtime Pay Required By The Fair Labor Standards Act
One public policy mandate on which Magee relies is the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. She alleges that DTSI's failure to pay overtime to certain workers violated the FLSA, and that DTSI and Fahey retaliated against her when she complained about it. Nevertheless, she admits that FLSA provides its own remedy for any such retaliation, but argues that she was not entitled to exercise that remedy because she did not file a complaint regarding the alleged violations of that law. The answer to this argument is that Magee cannot use her own decision not to avail herself of that remedy to bootstrap herself into a claim that she would not have needed to assert if she had pursued that remedy. See Chappell, 320 Md. at 496-97 (adequate remedies under FLSA barred abusive discharge claim by employee who made only internal complaint about violations); Gaskins v. Marshall Craft Assocs., 110 Md. App. 705, 715 (1996) (FLSA and Art. 49B both provide mechanisms for redressing violations and retaliatory or abusive discharges).
Moreover, we are not persuaded by Magee's complaint that she cannot be penalized merely because DTSI fired her before she filed a complaint. This argument presumes a material fact that, in all of her detailed allegations, Magee has never alleged - that she intended or attempted to file such a complaint. She is not entitled to the benefit of such a post hoc hypothetical.
Magee cites no other "unvindicated" public policy mandate as grounds for a "Watson" or "Insignia" exception to the Makovi ru
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