Plaintiffs' and Defendants' Bars Current Developments in Employment Law 2008

15th Annual Advanced ALI-ABA Course of Study
for Plaintiffs’ and Defendants’ Bars
Current Developments in Employment Law
July 24-26, 2008

Santa Fe, New Mexico
STATE EMPLOYMENT LAW DEVELOPMENTS
by
ROBERT B. FITZPATRICK, ESQ.

ROBERT B. FITZPATRICK, PLLC
Suite 640
Universal Building North
1825 Connecticut Avenue, N.W.
Washington, D.C. 20009-5728
(202) 588-5300 (telephone)
(202) 588-5023 (fax)
fitzpatrick.law@verizon.net (e-mail)
http://www.robertbfitzpatrick.com (website)
DISCLAIMER OF ALL LIABILITY AND RESPONSIBILITY
THE INFORMATION CONTAINED HEREIN IS BASED UPON SOURCES BELIEVED TO BE ACCURATE

AND RELIABLE -- INCLUDING SECONDARY SOURCES. DILIGENT EFFORT WAS MADE TO INSURE
THE ACCURACY OF THESE MATERIALS, BUT THE AUTHOR ASSUMES NO RESPONSIBILITY FOR
ANY READER’S RELIANCE ON THEM AND ENCOURAGES READERS TO VERIFY ALL ITEMS BY
REVIEWING PRIMARY SOURCES WHERE APPROPRIATE AND USING TRADITIONAL LEGAL
RESEARCH TECHNIQUES TO MAKE SURE THAT THE INFORMATION HAS NOT BEEN AFFECTED OR
CHANGED BY RECENT DEVELOPMENTS.
THIS PAPER IS PRESENTED AS AN INFORMATIONAL SOURCE ONLY. IT IS INTENDED TO ASSIST

READERS AS A LEARNIUNG AID BUT DOES NOT CONSTITUTE LEGAL, ACCOUNTING OR OTHER
PROFESSIONAL ADVICE. IT IS NOT WRITTEN (NOR IS IT INTENDED TO BE USED) FOR PURPOSES
OF ASSISTING CLIENTS, NOR TO PROMOTE, MARKET, OR RECOMMEND ANY TRANSACTION OR
MATTER ADDRESSED AND, GIVEN THE PURPOSE OF THE PAPER, MAY OMIT DISCUSSION OF
EXCEPTIONS, QUALIFICATIONS, OR OTHER RELEVANT INFORMARTION THAT MAY AFFECT ITS
UTILITY IN ANY LEGAL SITUATION. THIS PAPER DOES NOT CREATE AN ATTORNEY-CLIENT
RELATIONSHIP BETWEEN THE AUTHOR AND ANY READER. DUE TO THE RAPIDLY CHANGING
NATURE OF THE LAW, INFORMATION CONTAINED IN THIS PAPER MAY BECOME OUTDATED. IN
NO EVENT WILL THE AUTHOR, BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL OR
OTHER DAMAGES RESULTING FROM AND/OR RELATED TO THE USE OF THIS MATERIAL.
© Copyright 2008, Robert B. Fitzpatrick, Robert B. Fitzpatrick, PLLC, Washington, D.C. All Rights Reserved
TABLE OF CONTENTS
EXPRESS WRITTEN CONTRACT .......................................................................................... 2
BONUSES...................................................................................................................................... 7
IMPLIED CONTRACT ............................................................................................................... 8
PROMISSORY ESTOPPEL ..................................................................................................... 13
CONTRACT INTERPRETATION .......................................................................................... 14
UNJUST ENRICHMENT .......................................................................................................... 15
PUBLIC POLICY TORT .......................................................................................................... 17
DEFAMATION........................................................................................................................... 36
COMPELLED SELF-DEFAMATION..................................................................................... 50
DEFAMATION BY CONDUCT ............................................................................................... 50
ASSAULT AND BATTERY ...................................................................................................... 51
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS............................................ 52
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS................................................ 55
NEGLIGENCE ........................................................................................................................... 56
NEGLIGENT HIRING .............................................................................................................. 59
NEGLIGENT RETENTION ..................................................................................................... 60
NEGLIGENT SUPERVISION .................................................................................................. 61
NEGLIGENT DISCHARGE ..................................................................................................... 61
NEGLIGENT INVESTIGATION............................................................................................. 61
FRAUD......................................................................................................................................... 62
NEGLIGENT MISREPRESENTATION................................................................................. 64
PRIVACY .................................................................................................................................... 64
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS ........................... 66
TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONSHIPS .......................... 70
TORTIOUS INTERFERENCE WITH PROSPECTIVE ADVANTAGE ............................ 70
CIVIL CONSPIRACY ............................................................................................................... 71
SPOLIATION OF EVIDENCE................................................................................................. 72
EVIDENCE ................................................................................................................................. 73
STATE WHISTLEBLOWERS LAW....................................................................................... 74
STATE ANTI-DISCRIMINATION LAWS ............................................................................. 78
INDIVIDUAL LIABILITY UNDER ANTI-DISCRIMINATION LAWS ............................ 81
AIDING AND ABETTING........................................................................................................ 84
CONTRIBUTION....................................................................................................................... 85
APPLICATION OF FARAGHER/ELLERTH DEFENSE UNDER STATE ANTI-

DISCRIMINATION STATUES ................................................................................................ 86
STATE/LOCAL LAWS PROHIBITING SEXUAL ORIENTATION/GENDER

IDENTIFICATION DISCRIMINATION ................................................................................ 86
STATE LAWS PROHIBITING DISCRIMINATION BASED ON GENETIC

INFORMATION......................................................................................................................... 87
VIRGINIA GENETIC TESTING LAW .................................................................................. 87
STATE LAW PROHIBITING DISCIPLINE BECAUSE OF DISPLAY OF AMERICAN

FLAG ........................................................................................................................................... 87
STATE LAW PROHIBITING “ENGLISH ONLY” POLICIES .......................................... 87
VOLUNTEER PROTECTION ACT OF ARIZONA ............................................................. 88
NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT............................. 88
COVENANT OF GOOD FAITH AND FAIR DEALING ...................................................... 88
NON-COMPETE AGREEMENTS........................................................................................... 91
INEVITABLE DISCLOSURE DOCTRINE IN NON-COMPETE LITIGATION ........... 100
SEVERANCE PAY................................................................................................................... 102
ii
TRESPASS TO CHATTELS................................................................................................... 103
BREACH OF FIDUCIARY DUTY/ DUTY OF LOYALTY................................................ 104
EXCLUSIVITY OF WORKERS COMPENSATION .......................................................... 105
STATUTE OF FRAUDS .......................................................................................................... 109
ARBITRATION........................................................................................................................ 111
DAMAGES – TAX CONSEQUENCES ................................................................................. 116
BREACH OF CONTRACT – MENTAL ANGUISH............................................................ 116
BREACH OF CONTRACT – ATTORNEY’S FEES............................................................ 116
BREACH OF CONTRACT – CONSEQUENTIAL DAMAGES ........................................ 117
BREACH OF CONTRACT – STOCK OPTIONS ................................................................ 118
BREACH OF CONTRACT—CONTINUED LIABILITY .................................................. 119
WAGE COLLECTION LAWS ............................................................................................... 119
BREACH OF CONTRACT – TERMS................................................................................... 125
CONVERSION ......................................................................................................................... 126
UNFAIR BUSINESS PRACTICES STATUTE..................................................................... 127
ANTI-SLAPP STATUTE......................................................................................................... 128
SHAREHOLDER CLAIMS .................................................................................................... 129
PUNITIVE DAMAGES ........................................................................................................... 129
PREEMPTION ......................................................................................................................... 130
VENUE ...................................................................................................................................... 132
EMPLOYER’S LIABILITY FOR ACTIONS OF EMPLOYEE......................................... 133
SEXUAL HARASSMENT ....................................................................................................... 134
ADMINISTRATIVE HEARINGS .......................................................................................... 135
ETHICS ..................................................................................................................................... 136
iii
WORKERS’ COMPENSATION ............................................................................................ 136
TRADE SECRETS ................................................................................................................... 137
UNEMPLOYMENT ................................................................................................................. 139
EXCLUSIVITY OF WORKERS’ COMPENSATION RELEASE CLAUSES.................. 140
POST-EMPLOYMENT COMMISSIONS............................................................................. 140
WRONGFUL TERMINATION .............................................................................................. 140
COMPUTER FRAUD AND ABUSE ACT............................................................................. 141
NON-SOLICITATION AGREEMENTS ............................................................................... 141
NON-COMPETE AGREEMENTS......................................................................................... 141
U-4/U-5 CASES ......................................................................................................................... 142
WORK FOR HIRE................................................................................................................... 143
WRONGFUL DEMOTION..................................................................................................... 143
TERMINATION FOR HIRING A LAWYER OR COMMENCING A LAWSUIT ......... 144
CORPORATE GOVERNANCE ............................................................................................. 144
SETTLEMENT ......................................................................................................................... 145
iv
CASES
Abrams v. Am. Tennis Courts, Inc., 862 A.2d 1094 (Md. Ct. Spec. App. 2004).......................................................137
Acciardo v. Millennium Secs. Corp., 83 F. Supp. 2d 413 (S.D. N.Y. 2000)................................................................37
Adams v. Uno Rests., Inc., 794 A.2d 489 (R.I. 2002). .................................................................................................76
Adler v. Am. Standard Corp., 830 F.2d 1303 (4th Cir. 1987) ......................................................................................25
Admiral Mortgage v. Cooper, 745 A.2d 1026 (Md. 2000).........................................................................................122
Admiral Mortgage, Inc. v. Cooper, 745 A.2d 1026 (Md. 2000).................................................................................122
Advance Tech. Consultants, Inc. v. RoadTrac, LLC, 551 S.E.2d 735 (Ga. 2001). ......................................................99
Advanced Marine Enters., Inc. v. PRC, Inc., 501 S.E.2d 148 (Va. 1998)....................................................................93
Affolter v. Baugh Constr. of Oregon, Inc., 51 P.3d 642 (Or. Ct. App. 2002). .............................................................47
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). ............................................................................................112
Alford v. COSMYL Inc., 209 F. Supp. 2d 1361 (M.D. Ga. 2002)...............................................................................59
Al-Khazraji v. Saint Francis College, 784 F.2d 505 (3d Cir. 1986) .............................................................................82
All-Pak v. Johnston, 694 A.2d 347 (Pa. Super. 1997) ................................................................................................141
Allstate Ins. Co. v. Eskridge, 823 So.2d 1254 (Ala. 2001)...........................................................................................63
Allstate Ins. Co. v. Ginsberg, 863 So.2d 156 (Fla. 2003).............................................................................................66
Allworth v. Howard Univ., 890 A.2d 194 (D.C. 2006). .............................................................................................125
Aloi v. Union Pac. R.R. Corp., 129 P.3d 999 (Colo. 2006)..........................................................................................72
Altimont v. Chatelain Samperton, 374 A.2d 284 (D.C. 1997) .....................................................................................37
Am. Fed’n of State, County, & Mun. Employees v. Grand Rapids Pub. Utils. Comm’n, 645 N.W.2d 470 (Minn. Ct.
App. 2002). ...............................................................................................................................................................65
American Communications Network, Inc. v. Williams, 568 S.E.2d 683 (Va. 2002)...................................................45
Anderson v. ITT Indus., Corp., 92 F. Supp. 2d 516 (E.D. Va. 2000)...........................................................................31
Anderson-Johanningmeier v. Mid-Minnesota Women’s Ctr., Inc., 637 N.W.2d 270 (Minn. 2002). ..........................77
Antalis v. Ohio Dep’t of Commerce, 589 N.E.2d 429 (Ohio Ct. App. 1990) ..............................................................55
APJ Assocs., Inc. v. N. Am. Philips Corp., 317 F.3d 610 (6th Cir. 2003). ..................................................................14
Appleton v. Bondurant & Appleton, P.C., 2005 Va. Cir. LEXIS 239 (Va. Portsmouth Cir. Ct. 2005). ....................119
Application Group, Inc. v. Hunter Group, Inc., 1998 Cal. App. LEXIS 144 (Cal. Ct. App.1998). .............................96
Arbabi v. Fred Meyers, Inc., 205 F. Supp. 2d 462 (D. Md. 2002). ..............................................................................54
Archer v. Farmer Bros. Co., 70 P.3d 495 (Colo. App. 2002). ....................................................................................108
Armendarez v. Glendale Youth Center, Inc., 265 F. Supp. 2d 1136 (D. Ariz. 2003). .................................................88
Armstrong v. Am. Home Shield Corp., 333 F.3d 566 (5th Cir. 2003). ........................................................................64
Armstrong v. Paoli Mem’l Hosp., 633 A.2d 605 (Pa. Super. Ct. 1993) .......................................................................55
Arnold v. Janssen Pharm., Inc., 215 F. Supp. 2d 951 (N.D. Ill. 2002 ..........................................................................79
Austin v. Howard Univ., 267 F. Supp. 2d 22 (D.D.C. 2003). ........................................................................................8
Aware, Inc., v. Ramirez-Mireles, 2001 Mass. Super. LEXIS 221 (Mass. 2001). ......................................................101
Baer v. Chase, 392 F.3d 609 (3d Cir. 2004) .................................................................................................................15
Baker v. District of Columbia, 785 A.2d 696 (D.C. 2001)...........................................................................................47
Baker v. Lafayette College, 504 A.2d 247 (Pa. 1986)..................................................................................................42
Baker v. Sun Co., 985 F. Supp. 609 (D. Md. 1997) .....................................................................................................90
Balbuena v. IDR Realty, 845 N.E.2d 1246 (N.Y. 2006). .............................................................................................91
Ballow Brasted O’Brien & Rusin P.C. v. Logan, 435 F.3d 235 (2d Cir. 2006) ...........................................................62
Balt. Harbor Charters, LTD., v. Ayd, 780 A.2d 303 (Md. 2001). ..............................................................................122
Bammert v. Don’s Super-Valu, Inc., 646 N.W.2d 365 (Wis. 2002).............................................................................21
Baradell v. Bd. of Soc. Servs., 970 F. Supp. 489 (W.D. Va. 1997)..............................................................................88
Baragar v. State Farm Ins. Co., 860 F. Supp. 1257 (W.D. Mich. 1994).....................................................................143
Barnica v. Kenai Peninsula Borough Sch. District, 46 P.3d 974 (Alaska 2002) ........................................................112
Barr v. Kelso-Burnett Co., 478 N.E.2d 1354 (Ill. 1985)...............................................................................................27
Barr v. Matteo, 360 U.S. 564 (1959) ............................................................................................................................43
Battaglia v. Clinical Perfusionists, Inc., 658 A.2d 680 (Md. 1995)............................................................................123
Baughman v. Wal-Mart Stores, Inc., 592 S.E.2d 824 (W. Va. 2003)...........................................................................64
Bayer Corp. v. Roche Molecular System, Inc., 72 F. Supp. 2d 1111 (N.D. Cal. 1999). ............................................101
Beard v. Edmondson & Gallagher, 790 A.2d 541 (D.C. 2002)....................................................................................68
Beason v. United Techs. Corp., 337 F.3d 271 (2d Cir. 2003). .....................................................................................81
Becker v. Philco Corp., 372 F.2d 771 (4th Cir. 1967)..................................................................................................44
Bell v. Ivory, 966 F. Supp. 2d 23 (D.D.C. 1997)..........................................................................................................70
Below v. Skarr, 569 N.W.2d 510 (Iowa 1997). ............................................................................................................23
Benson v. Gable, 593 N.W.2d 402 (S.D. 1999)..........................................................................................................107
Bergn Commer. Bank v. Sisler, 723 A.2d 944 (N.J. 1999). .........................................................................................78
Better Living Components, Inc. v. Coleman, 2005 Va. Cir. LEXIS 145 (Va. Albemarle Cir. Ct. 2005). ...................92
Bibleway Church v. Beards, 680 A.2d 419 (D.C. 1996). .............................................................................................39
Biddlecom v. Biddlecom, 113 A.2d 66 (N.Y. App. Div. 1985) .................................................................................102
Biggs v. Aldi, Inc., 218 F. Supp. 2d 1260 (D. Kan. 2002). ..........................................................................................54
Birchem v. Knights of Columbus, 116 F.3d 310 (8th Cir. 1997) .................................................................................26
Birkbeck v. Marvel Lighting Corp, 30 F.3d 507 (4th Cir. 1994) .................................................................................81
Bivens v. [Six Unknown Named Agents of the Federal Bureau of Narcotics], 403 U.S. 388 (1971)..........................33
Blake v. Prof’l Travel Corp., 768 A.2d 568 (D.C. 2001). ..........................................................................................133
Blaney v. Int’l Ass’n of Machinists & Aerospace Workers, 55 P.3d 1208 (Wash. Ct. App. 2002)...........................116
Bleich v. Florence Crittenton Servs. of Balt., Inc., 632 A.2d 463 (Md. Ct. Spec. App. 1993). .............................28, 70
Blue Ridge Anesthesia & Critical Care v. Gidick, 389 S.E.2d 467 (Va. 1990) .........................................................127
Blum v. Campbell, 355 F. Supp. 1220 (D. Md. 1972) .................................................................................................44
Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550 (Minn. 2003). ...................................................................65
Boe v. Allied Signal, Inc., 131 F. Supp. 2d 1197 (D. Kan. 2001) ................................................................................54
Bolton v. Dep’t Human Serv., 540 N.W.2d 523 (Minn. 1995). .............................................................................43, 51
Bouwens v. Centrilift, 974 P.2d 941 (Wyo. 1999) .......................................................................................................11
Bowling v. King & Spalding, 2006 D.C. App. LEXIS 250. (D.C. 2006) ....................................................................36
Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985) ................................................................................31
Boyle v. United Techs. Corp., 487 U.S. 500 (1988).....................................................................................................43
Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo. Ct. App. 1985)...........................................................................34
Boys Town, USA, Inc. v. World Church, 349 F.2d 576 (9th Cir. 1965)......................................................................71
Braithwaite v. Accupac, Inc., 2002 U.S. Dist. LEXIS 25044 (E. D. Pa. 2002)............................................................10
Branche v. Airtran Airways, Inc., 342 F.3d 1248 (11th Cir. 2003)......................................................................76, 132
Brandon v. Anesthesia & Pain Mgmt. Assocs., LTD, 277 F.3d 936 (7th Cir. 2002). ..................................................32
Brattis v. Rainbow Advertising Holdings, LLC, 2000 U.S. Dist. LEXIS 7345 (S.D.N.Y. 2000)................................39
Bridge Tech. Corp. v. Kenjya Group, Inc., 2004 Va. Cir. LEXIS 100 (Va. Fairfax Cir. Ct. 2004).............................42
Briggs v. N.Y. State Dept. of Transp., 233 F. Supp. 2d 367 (N.D.N.Y. 2002). ...........................................................81
Brigham v. Dillon Cos., Inc., 935 P.2d 1054 (Kan. 1997) ...........................................................................................22
Brinich v. Jencka, 757 A.2d 388 (Pa. 2000.) ................................................................................................................37
Brotman v. Brotman, 528 So. 2d 550 (Fla. Dist. Ct. App 1988). ...............................................................................103
Brown v. Argenbright Sec., Inc., 782 A.2d 752 (D.C. 2001). ......................................................................................58
Brown v. Cushman & Wakefield, Inc., 235 F. Supp. 2d 291 (S.D.N.Y. 2002)..............................................................6
Brown v. Ford, 905 P.2d 223 (Okla. 1995); ...........................................................................................................24, 29
Brown v. Scott Paper Worldwide Co., 20 P.3d 921 (Wash. 2001)...............................................................................82
Brozo v. Oracle Corp., 324 F.3d 661 (8th Cir. 2003). ............................................................................................5, 126
Brunswick Hills Racquet Club, Inc., v. Route 19 Shopping Center Assoc., 864 A.2d 387 (N.J. 2005). .....................89
Bryant v. Better Bus. Bureau of Greater Md., 923 F. Supp. 720 (D. Md. 1996)..........................................................60
Burbank Grease Servs. L.L.C. v. Sokolowski, 693 N.W. 2d 89 (Wis. Ct. App. 2005)..............................................138
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)..........................................................................................74, 86
Burton v. Exam Ctr. Indus. & Gen. Med., 994 P.2d 1261 (Utah 2000). ......................................................................29
Byers v. Labor & Indus. Review Comm., 561 N.W.2d 678 (Wis. 1997)...................................................................109
Byrd v. Richardson-Greenshields Sec., Inc., 552 So.2d 1099 (Fla. 1989) .................................................................109
Call v. Shaw Jewelers, Inc., 1999 U.S. Dist. LEXIS 636 (W.D. Va. 1999) .................................................................60
Cal-Tech v. L.A. Cellular Tel. Co., 973 P.2d 527 (Cal. 1999) ...................................................................................127
Campbell v. General Dynamics, 407 F.3d 546 (1st Cir. 2005) ..................................................................................111
Carl v. Children’s Hospital, 702 A.2d 159 (D.C. 1999) ...............................................................................................23
vi
Carpenters Health & Welfare Fund v. Kenneth R. Ambrose, Inc., 727 F.2d 279 (3d Cir. 1983). ...............................84
Carter v. Am. Online, 208 F. Supp. 2d 1271 (M.D. Fla. 2001). ...................................................................................53
Carter v. Aramark Sports & Entm’t Servs., Inc., 835 A.2d 262 (Md. 2003)................................................................45
Carter v. Reynolds, 815 A.2d 460 (N.J. 2003). ..........................................................................................................133
Carwile v. Richmond Newspapers, Inc., 82 S.E.2d 588, 591 (1954) ...........................................................................41
Chambers v. Trettco, Inc., 614 N.W.2d 910 (Mich. 2000)...........................................................................................86
Champion Billiards Cafe, Inc. v. Hall, 685 A.2d 901 (Md. Ct. Spec. App. 1996) .......................................................58
Chapman v. Adia Services, Inc, 688 N.E.2d 604 (Ohio App. 1997)....................................................................22, 144
Chappell v. S. Md. Hosp., 578 A.2d 766 (Md. 1990)...................................................................................................33
Chatman v. Lawlor, 831 A.2d 395 (D.C. 2003). ........................................................................................................129
Chavez v. Sievers, 43 P.3d 1022 (Nev. 2002). .............................................................................................................29
Cheek v. United Healthcare of the Mid-Atlantic, Inc., 835 A.2d 656 (Md. 2003).....................................................111
Christensen v. Grant County Hosp. Dist. No. 1, 60 P.3d 99 (Wash. Ct. App. 2002). ..................................................20
Christian Def. Fund v. Stephen Winchell & Assocs., Inc, 1998 Va. Cir. LEXIS 290 (Va. Fairfax Cir. Ct. 1998)......97
Cicconi v. McGinn Smith & Co., 2005 N.Y. App. Div. LEXIS 14672 (N.Y. App. Div., 2005). ................................37
Cirrito v. Cirrito, 605 S.E.2d 268 (Va. Ct. App. 2004).................................................................................................95
City Slickers, Inc. v. Douglas, 40 S.W.3d 805 (Ark. Ct. App. 2001).........................................................................101
Clark Substations, LLC v. Ware, 838 So.2d 360 (Ala. 2002). .....................................................................................97
Claxton v. Waters, 96 P.3d 496 (Cal. 2004). ..............................................................................................................140
CMI Int’l, Inc. v. Intermet Int’l Corp., 649 N.W.2d 808 (Mich. Ct. App. 2002). ......................................................100
Cochran v. Quest Software Inc., 328 F.3d 1 (1st Cir. 2003). .......................................................................................91
Cohn v. Knowledge Connections, Inc., 585 S.E.2d 578 (Va. 2003). ...........................................................................62
Cohoon v. Fin. Plans & Strategies, Inc., 760 N.E.2d 190 (Ind. Ct. App. 2001)...........................................................97
Collins v. Red Roof Inns, Inc., 248 F. Supp. 2d 512 (S.D. W. Va. 2003)....................................................................49
Commonwealth Energy Corp. v. Chappell, 2002 Cal. LEXIS 4333 (Cal. 2002).......................................................128
Conner v. Lavaca Hosp. District, 267 F.3d 426 (5th Cir. 2001).................................................................................110
Conner v. National Pest Control Ass’n, 513 S.E.2d 398 (Va. 1999)............................................................................31
Coolidge v. Riverdale Local Sch. Dist., 797 N.E.2d 61 (Ohio 2003).........................................................................107
Cooper v. Paychex, Inc., 960 F.Supp. 966 (E.D. Va. 1997) .......................................................................................116
Corporate Express Office Prods., Inc. v. Phillips, 847 So.2d 406 (Fla. 2003). ............................................................95
Corporate Training Unlimited, Inc. v. Nat’l Broad. Co., Inc., 868 F. Supp. 501 (E.D.N.Y. 1994...............................50
Cortez v. Purolator Air Filtration Products, Co., 999 P.2d 706 (Cal. 2000)...............................................................127
Costantino v. Jaycor, 816 F.2d 671 (4th Cir. 1987)......................................................................................................88
Cotran v. Rollins Hudig Hall Int’l, Inc., 948 P.2d 412 (Cal. 1998)..........................................................................3, 11
Coudert v. Paine Webber Jackson & Curtis, 705 F.2d 78 (2d Cir. 1983),..................................................113, 114, 142
County Comm’rs of Caroline Co. v. J. Roland Dashiell & Sons, Inc., 747 A.2d 600 (Md. 2000). .............................16
County of Giles v. Wines, 546 S.E.2d 721 (Va. 2001).................................................................................................11
Crawford v. District of Columbia, 891 A.2d 216 (D.C. 2006). ....................................................................................74
Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852 (Tenn. 2002). .............................................................................25
Cweklinsky v. Mobil Chem. Co., 297 F.3d 154 (2d Cir. 2002). ..................................................................................50
D. Houston, Inc. v. Love, 92 S.W.3d 450 (Tex. 2002).................................................................................................57
DaBronzo v. Roche Vitamins, Inc., 232 F. Supp. 2d 306 (D.N.J. 2002)......................................................................88
Dahill v. Police Dep’t of Boston, 748 N.E.2d 956 (Mass. 2001). ................................................................................80
Dale v. Thomason, 962 F. Supp. 181 (D.D.C. 1997)....................................................................................................69
Dalton v. Camp, 548 S.E.2d 704 (N.C. 2001). ...........................................................................................................104
Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, (1st Cir. 1999) ...............................................................................26
Danfelt v. Board of County Comm’rs of Washington County, 998 F. Supp. 606 (D. Md. 1998)................................30
Dantley v. Howard Univ., 801 A.2d 962 (D.C. 2002)....................................................................................................9
Darvish v. Gohari, 745 A.2d 1134 (Md. 2000).............................................................................................................49
Davis v. Dillmeier Enters, Inc., 957 S.W.2d 155 (1997)............................................................................................109
Dawson v. N.Y. Life Ins. Co., 135 F.3d 1158 (7th Cir. 1998). ....................................................................................37
Daywalt v. Montgomery Hosp., 573 A.2d 1116 (Pa. 1990). ........................................................................................49
DCS Sanitation Mgmt.v. Castillo, 435 F.3d 892 (8th Cir. 2006). ................................................................................92
vii
De Boer Strucutres v. Shaffer Tent and Awning Co., 233 F. Supp. 2d 934 (S.D. Ohio 2002). ...................................72
DeArmond v. Halliburton Energy Services, Inc., 81 P.3d 573 (N.M. Ct. App. 2003)...............................................111
Defilippo v. Balfour Beatty Constr., 814 A.2d 919 (Conn. Super. Ct. 2002)...............................................................50
Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 148 F. Supp. 2d 1326 (S.D. Fla. 2001).................................102
Demarco v. Publix, 384 So.2d 1253 (Fla. 1980). .......................................................................................................144
Demby v. Preston Trucking Co., 961 F. Supp. 873 (D. Md. 1997)............................................................................109
Dept’ of Labor, Indus. & Human Relations v. Coatings, Inc., 376 N.W.2d 834 (Wis. 1985)....................................123
Design Kitchen & Baths v. Lagos, 882 A.2d 817 (Md. 2005). ..................................................................................136
Detroit Tigers, Inc. v. Ignite Sports Media, LLC, 203 F. Supp. 2d 789 (E.D. Mich. 2002)...........................................5
Diaz v. Comerica Bank, 2002 WL 181778 (Mich. Ct. App. 2002). ...........................................................................107
District of Columbia v. Thompson, 593 A.2d 621 (D.C. 1991) ...................................................................................47
Doe v. Pharmacia, 122 Fed. Appx. 20 (4th Cir. 2005). ................................................................................................56
Dooley v. Autonation USA Corp., 218 F. Supp. 2d 1270 (N.D. Ala. 2002). ...............................................................79
Drake v. Cheyenne Newspapers, Inc., 891 P.2d 80 (Wyo. 1995) ................................................................................27
Dray v. New Mkt. Poultry, Inc., 518 S.E.2d 312 (Va. 1999). ......................................................................................32
Driveaway & Truckaway Serv., Inc. v. Aaron Driveaway & Truckaway Co., 781 F. Supp. 548 (N.D. Ill. 1991)......26
Dumas v. Auto Club Ins. Ass’n, 473 N.W. 2d 652 (Mich. 1991) ..............................................................................143
Dunaway v. Int'l Bhd. of Teamsters, 310 F.3d 758 (D.C. Cir. 2002). ............................................................................9
E. Bus. Forms, Inc. v. Kistler, 189 S.E.2d 22 (S.C. 1972) ...........................................................................................92
Eaton Vance Distrib., Inc. v. Ulrich, 692 So.2d 915 (Fla. Dist. Ct. App. 1997). .......................................................114
Ebelt v. County of Ogemaw, 231 F. Supp. 2d 563 (E.D. Mich. 2002).........................................................................76
Echtenkamp v. Loudon County Pub. Schs., 263 F. Supp. 2d 1043 (E.D. Va. 2003). ..................................................46
Edell & Assocs., P.C. v. Law Offices of Angelos, 264 F.3d 424 (4th Cir. 2001). .......................................................90
EEOC v. Joe’s Stone Crab, Inc., 15 F. Supp. 2d 1364 (S.D. Fla. 1998).....................................................................116
Egan v. Hamline United Methodist Church, 679 N.W.2d 350 (Minn. Ct. App. 2004). ...............................................78
Eid v. Duke, 816 A.2d 844 (Md. Ct. Spec App. 2003)...............................................................................................130
ePlus Inc. v. Chan, 2003 Va. Cir. LEXIS 100 (Va. Fairfax Cir. Ct. 2003) ....................................................................7
Erickson v. Labor &Indus. Review Comm’n, 704 N.W. 2d 398 (Wis. Ct. App. 2005)...............................................80
Estate of Harris v. Papa John's Pizza, 679 N.W.2d 673 (Iowa 2004).........................................................................106
Evans v. General Motors Corp., 893 A.2d 371 (Conn. 2006). ...................................................................................137
Evans v. Toy’s R Us-Ohio, Inc., 32 F. Supp. 2d 974 (N.D. Ohio 1999). .....................................................................22
Failla v. City of Passaic, 146 F.3d 149 (3d Cir. 1998). ................................................................................................84
Faragher v. City of Boca Raton, 524 U.S. 775 (1998)............................................................................................74, 86
Farmers Bros. Coffee v. Workers’ Comp. Appeals Bd., 2005 Cal. Wrk. Comp. LEXIS 311 (Cal. Ct. App. 2005)..106
Farrington v. Bureau of Nat’l Affairs, Inc., 596 A.2d 58 (D.C. 1991) .........................................................................47
Feddeman & Co., C.P.A., P.C. v. Langan & Assocs., P.C., 530 S.E.2d 668 (Va. 2000). ..........................................104
Feliciano v. 7-Eleven, Inc., 559 S.E.2d 713 (W. Va. 2001) .........................................................................................34
Fields v. Thompson Printing Co., Inc., 363 F.3d 259 (3d Cir. 2004). ............................................................................2
First Allmerica Fin. Life Ins. Co. v. Sumner, 212 F. Supp. 2d 1235 (D. Or. 2002). ....................................................99
First Options of Chi., Inc. v. Kaplan, 514 U.S. 938 (1995). .......................................................................................115
Fischhaber v. General Motors Corp, 436 N.W. 2d 386, 389 (Mich. App. 1988) .......................................................143
Fitch v. Cont'l Cas. Co., 2002 U.S. Dist. LEXIS 24269 (N.D. Ill. 2002).....................................................................10
Fleck v. E.F. Hutton Group, Inc., 891 F.2d 1047 (2d Cir. 1989)................................................................................113
Fogel v Trs. of Iowa Coll., 446 N.W.2d 451 (Iowa 1989)............................................................................................90
Fondi v. Fondi, 802 P.2d 1264 (Nev. 1990) ...............................................................................................................102
Forbus v. Sears Roebuck & Co., 958 F.2d 1036 (11th Cir. 1992)................................................................................63
Fosmo v. State, 59 P.3d 105 (Wash. Ct. App. 2002). ...................................................................................................36
Fox Searchlight Pictures, Inc. v. Paladino, 2001 Cal. App. LEXIS 377 (Cal. Ct. App. 2001). .................................128
Francorp, Inc. v. Siebert, 126 F. Supp. 2d 543 (N.D. Ill. 2000). ..................................................................................99
Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336 (3d Cir. 2005).....................................................39
Franklin v. Franklin, 859 P.2d 479 (N.M. Ct. App 1993). .........................................................................................102
Friedman v. S. Cal. Permanente Med. Group, 2002 Cal. App. LEXIS 4641 (Cal. Ct. App. 2002). ............................79
Friolo v. Frankel, 819 A.2d 354 (Md. 2003). .............................................................................................................117
viii
Froelich v. Erickson, 96 F. Supp. 2d 507 (D. Md. 2000). ....................................................................................90, 104
Fulford v. Burndy Corp., 623 F.Supp. 78 (D.N.H. 1985).....................................................................................23, 144
Fuste v. Riverside Healthcare Ass’n, 575 S.E.2d 858 (Va. 2003)................................................................................41
Futrell v. Dep’t of Labor Fed. Credit Union, 816 A.2d 793 (D.C. 2003).....................................................................66
Gallip v. City of Rutland, 882 A.2d 1177 (Vt. 2005). ..................................................................................................17
Garcia v. Lucent Techs., 51 Fed. Appx. 703 (9th Cir. 2002). ........................................................................................9
Gardner v. Benefits Commc’ns Corp., 175 F.3d 155 (D.C. Cir. 1999) ........................................................................82
Garg v. Macomb Country Community Mental Health Services, 696 N.W.2d 646 (Mich. 2005)................................78
Garrity v. John Hancock Mut. Life Ins. Co., 2002 U.S. Dist. LEXIS 8343 (D. Mass. 2002). .....................................65
Gelof v. Papineau, 829 F.2d 452 (3d Cir. 1987).........................................................................................................116
Gen. Motors Corp. v. Piskor, 340 A.2d 767 (Md. Ct. Spec. App. 1975)......................................................................50
Genaro v. Cent. Transp., Inc., 703 N.E.2d 782 (Ohio 1999). .......................................................................................83
General Dynamics Corp. v.Superior Court, 876 P.2d 487 (Cal. 1994) ........................................................................25
Gerow v. Rohm & Haas Co., 308 F.3d 721 (7th Cir. 2002). ..........................................................................................3
Ghorbanni v. N.D. Council on the Arts, 639 N.W.2d 507 (N.D. 2002). ......................................................................33
Gibbs v. PFS Investments, Inc., 209 F. Supp. 2d 620 (E.D. Va. 2002)......................................................................112
Ginn v. Kelley Pontiac-Mazda, Inc., 841 A.2d 785 (Me. 2004)...................................................................................75
Glasscock v. Alliant Foodservice, Inc., 232 F.Supp. 2d 1148 (D. Or. 2001). .............................................................18
Glotzbach v. Froman, 827 N.E. 2d 105 (Ind. Ct. App. 2005).......................................................................................72
Goodman v. Boeing Co., 899 P.2d 1265 (Wash. 1995)..............................................................................................109
Gottling v. P.R., Inc., 61 P.3d 989 (Utah 2002)............................................................................................................29
Gov’t Micro Res., Inc. v. Jackson, 624 S.E.2d 63 (Va. 2006)......................................................................................37
Gov’t Tech. Servs. Inc v. Intellisys Tech. Corp., 1999 Va. Cir. LEXIS 502 (Va. Fairfax Cir. Ct. 1999)..........102, 104
Gray v. AT&T Corp., 357 F.3d 763 (8th Cir. 2004).....................................................................................................40
Greenland v.Fairtron Corp., 500 N.W.2d 36 (Iowa 1993)....................................................................................53, 131
Griesi v. Atlantic Gen. Hosp. Corp., 756 A.2d 548 (Md. 2000)...................................................................................64
Griva v. Davison, 637 A.2d 830 (D.C. 1994) ...............................................................................................................71
Gulati v. Zuckerman, 723 F. Supp. 353 (E.D. Pa. 1989)..............................................................................................44
Gunthorpe v. DaimlerChrysler Corp., 205 F. Supp. 2d 820 (N.D. Ohio 2002)......................................................13, 68
Gupta v. City of Norwalk, 221 F. Supp. 2d 282 (D. Conn. 2002)................................................................................56
Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089 (Cal. 2000).....................................................................................................90
H&R Block Fin. Advisors, Inc. v. Majkowski, 410 F. Supp. 2d 1 (D.D.C. 2006).......................................................91
H.P. White Lab., Inc. v. Blackburn, 812 A.2d 305 (Md. 2002)....................................................................................80
Haas v. Lockheed Martin Corp., 887 A.2d 673 (Md. Ct. Spec. App. 2006). .............................................................140
Hais v. Smith, 547 A.2d 986 (D.C. 1988).....................................................................................................................89
Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983) ..................................................................................................71
Hamros v. Bethany Homes & Methodist Hosp., 894 F. Supp. 1176 (N.D. Ill. 1995) ..................................................30
Hanford v. Plaza Packaging Corp., 811 N.E.2d 30 (N.Y. 2004). ...............................................................................106
Hannah v. Heeter, 584 S.E.2d 560 (W. Va. 2003)........................................................................................................73
Hanson v. Hancock County Mem. Hosp., 938 F. Supp. 1419 (N.D. Iowa 1996).........................................................54
Hardaway Mgmt. Co. v. Southerland, 977 S.W.2d 910 (Ky. 1998)...........................................................................109
Harris v. Bd. of Educ. of Howard County, 825 A.2d 365 (Md. 2003) .......................................................................137
Harris v. Best Bus. Prods., Inc., 651 N.W.2d 875 (S.D. 2002).....................................................................................57
Harrison v. NetCentric Corp., 744 N.E.2d 622 (Mass. 2001).......................................................................................91
Hart Conover, Inc. v. Hart, 1998 Va. Cir. LEXIS 288 (Va. Fairfax Cir. Ct. 1998); ....................................................97
Harvey v. Care Initiatives, Inc., 634 N.W.2d 681 (Iowa 2001)....................................................................................26
Haynie v. State, 664 N.W.2d 129 (Mich. 2003). ........................................................................................................134
Hecny Transp. Inv. v. Chu, 430 F.3d 402 (7th Cir. 2005)..........................................................................................138
Hegy v. Cmty. Counseling Ctr., 158 F. Supp. 2d 892 (D. Ill. 2001) ............................................................................67
Helmer v. Bingham Toyota Isuzu, 2005 Cal. App. LEXIS 869 (Cal. Ct. App. 2005). ................................................13
Herman v. United Bhd. of Carpenters & Joiners, 60 F.3d 1375 (9th Cir. 1995 ...........................................................55
Heye v. Am. Golf Corp., Inc., 80 P.3d 495 (N.M. Ct. App. 2003).............................................................................111
Hicklin Eng’g L.C. v. Bartell, 439 F.3d 346 (7th Cir. 2006)......................................................................................138
ix
Hill v. Ford Motor Co., 324 F. Supp. 2d 1028 (E.D. Mo. 2004). .................................................................................83
Himmel v.Ford Motor Co., 342 F.3d 593 (6th Cir. 2003). ...........................................................................................19
Hodge v. Evans Fin. Corp., 823 F.2d 559 (D.C. Cir. 1987). ......................................................................................110
Hoff v. City of Casper-Natrona County Health Dept., 33 P.3d 99 (Wyo. 2001)..........................................................11
Hoffman-La Roche, Inc. v. Zeltwanger, 133 S.W.3d 438 (Tex. 2004). .......................................................................78
Holdampf v. A.C. &S., Inc. 840 N.E.2d 115 (N.Y. 2005)............................................................................................57
Holloman v. Circuit City Stores, Inc., 894 A.2d 547 (Md. 2006). ...............................................................................91
Holloway v. Faw, Casson & Co., 572 A.2d 510 (Md. 1990) .......................................................................................92
Holmes v. Eddy, 341 F.2d 477, (4th Cir. 1965)............................................................................................................46
Holston v. Sports Auth., Inc., 136 F. Supp. 2d 1319 (N.D. Ga. 2000) .........................................................................59
Homes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998). ........................................................................................73
Horn v. New York Times, 790 N.E.2d 753 (N.Y. 2003)................................................................................................9
Hosp. & Med. Serv. v. Mariani, 916 P.2d 519 (Colo. 1996) ........................................................................................17
Howard Oaks, Inc. v. Md. Nat’l Bank, 810 F. Supp. 674 (D. Md. 1993).....................................................................90
Howard Univ. v. Baten, 632 A.2d 389 (D.C. 1993). ..................................................................................................116
Howard Univ. v. Lacy, 828 A.2d 733 (D.C. 2003).........................................................................................................5
Hubbard v. Spokane County, 50 P.3d 602 (Wash. 2002) .............................................................................................21
Huberts v. Dudley, 993 P.2d 901 (Wash. 2000) ...........................................................................................................30
Hubner v. Cutthroat Commc’ns, Inc., 80 P.3d 1256 (Mont. 2003) ............................................................................111
Huegerich v. IBP, Inc., 547 N.W.2d 216 (Iowa 1996) .................................................................................................61
Hysitron, Inc. v. Frederickson, 2002 Minn. App. LEXIS 1327 (Minn. Ct. App. 2002)...............................................16
Imes v. City of Asheville, 594 S.E.2d 397 (N.C. Ct. App. 2004);................................................................................19
In re Gatti, 8 P.3d 966 (Or. 2000). ..............................................................................................................................136
In re Halliburton Co., 80 S.W.3d 566 (Tex. 2002). ....................................................................................................112
In re Holmes, 841 P.2d 388 (Colo. Ct. App. 1992) ....................................................................................................102
In re Marriage of Bishop, 729 P.2d 647 (Wash. App. 1986)......................................................................................103
In re Walt Disney Co. Derivative Litig., 2005 Del. Ch. LEXIS 113 (Del. Ch. 2005)................................................144
Ingram v. Rencor Controls, Inc., 217 F. Supp. 2d 141 (D. Me. 2002). ........................................................................16
Inscho v. Exide Corp., 33 P.3d 249 (Kan. Ct. App. 2001). ..........................................................................................10
Insignia Residential Corp v. Ashton, 755 A.2d 1080 (Md. 2000). ...............................................................................27
Int’l Airport Ctrs., L.L.C. v. Citrin, 440 F. 3d 418 (7th Cir. 2006). ...........................................................................141
Int’l Distrib. Corp. v. Am. Dist. Tel. Co., 569 F.2d 136 (D.C. Cir. 1977) ...................................................................52
Intel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003)..........................................................................................................103
Interim Pers. of Cent. Va., Inc. v. Messer, 559 S.E.2d 704 (Va. 2002)........................................................................57
Ishikawa v. Delta Airlines, 343 F.3d 1129 (9th Cir. 2003). .......................................................................................131
Ivers v. Church of St. William, 1998 Minn. App. LEXIS 1397 (Minn. Ct. App. 1998). .............................................51
Jackson v. Morris Commc’n Corp., 657 N.W.2d 634 (Neb. 2003). .......................................................................19, 36
James v. DeGrandis, 138 F. Supp. 2d 402 (W.D.N.Y. 2001).......................................................................................48
Jarrett v.Goldman, 2005 Va. Cir. LEXIS 49 (Va. Portsmouth Cir. Ct. 2005)........................................................39, 41
Jenkins v. Parkview Counseling Ctr., 2001 Ohio App. LEXIS 133 (Ohio Ct. App. 2001)..........................................22
Jennings v. Marralle, 876 P.2d 1074 (Cal. 1994). ........................................................................................................29
Jewett v. General Dynamics Corp., 1997 Conn. Super. LEXIS 1264 (Conn. Super. Ct. 1997).................................143
Jiminez v. Thompson Steel Co., Inc., 264 F. Supp. 2d 693 (N.D. Ill. 2003)........................................................53, 131
Johnson v. Delchamps, Inc., 897 F.2d 808 (5th Cir. 1990) ..........................................................................................61
Johnson v. Honda of America Mfg., Inc., 221 F. Supp. 2d 853 (S.D. Ohio 2002) ......................................................30
Johnson v. Mayo Yarns, Inc., 484 S.E.2d 840 (N.C. Ct. App. 1997);..........................................................................27
Johnson v. Schenley Distillers Corp., 28 A.2d 606 (Md. 1942) .....................................................................................7
Johnson v. United States, 1987 WL 15690 (D.D.C. 1987)...........................................................................................52
Jones v. Giant Food, Inc., 2000 WL 1828283 (D. Md. 2000) ......................................................................................33
Jordan v. CCH, Inc., 230 F. Supp. 603 (E.D. Pa. 2002) .............................................................................................116
Joy v. Hay Group, Inc., 403 F.3d 875 (7th Cir. 2005)....................................................................................................2
Joyner v. Sibley Mem’l Hosp., 826 A.2d 362 (D.C. 2003) ..........................................................................................51
Karch v. Baybank FSB, 794 A.2d 763 (N.H. 2002). ..................................................................................................108
Karst v. F.C. Hayer Co., Inc., 447 N.W.2d 180 (Minn. 1989) ...................................................................................109
Keener v. Convergys Corp., 205 F. Supp. 2d 1374 (S.D. Ga. 2002)............................................................................99
Keywell & Rosenfeld v. Bithell, 657 N.W.2d 759 (Mich .Ct. App. 2002). .................................................................15
King v. Bangor Fed. Credit Union, 568 A.2d 507 (Me. 1989)...................................................................................109
King v. Kidd, 640 A.2d 656 (D.C. 1999) .....................................................................................................................47
King v. Marriott Int’l, Inc., 337 F.3d 421 (4th Cir. 2003). .........................................................................................131
King v. Marriott Int'l, Inc., 866 A.2d 895 (Md. Ct. Spec. App. 2005). ........................................................................75
Kistler v. O’Brien, 347 A.2d 311 (Pa. 1975) ................................................................................................................98
Kittle v. Cynocom Corp., 232 F. Supp. 2d 867 (S.D. Ohio 2002)................................................................................20
Klontz v. City of London, 2002 Ohio App. LEXIS 1555 (Ohio Ct. App. 2002). ........................................................21
Knight v. Georgetown Univ., 725 A.2d 472 (D.C. 1999).............................................................................................80
Konstantopoulous v. Westvaco Corp., 690 A.2d 936 (Del. 1996) .............................................................................109
Korb v. Raytheon Corp., 574 N.E.2d 370 (Mass. 1991)...............................................................................................27
Kulch v. Structural Fibers, Inc., 677 N.E.2d 308 (Ohio 1997).....................................................................................21
Kun v. Finnegan, Henderson, Farabow, Garrett & Dunner, 949 F. Supp. 13 (D.D.C. 1996). .....................................56
Kwang Dong Pharm. Co. v. Han, 205 F. Supp. 2d 489 (D. Md. 2002)........................................................................16
Labor Ready, Inc. v. Alan Abis, 767 A.2d 936 (Md. Ct. Spec. App. 2001).................................................................93
Labrecque v. Sunbird Boat Co. Inc., 873 F. Supp. 946 (D. Md. 1994). .....................................................................110
Lake Land Employment Group of Akron v. Columber, 804 N.E.2d 27 (Ohio 2004)..................................................95
Lamb v. Weiss, 2003 Va. Cir. LEXIS 272 (Va. Winchester Cir. Ct. 2003).................................................................46
Lane v. U.S. Steel, 871 F. Supp. 1434 (M.D. Ala. 1994). ............................................................................................85
Lanning v. Morris Mobile Meals, Inc., 720 N.E.2d 1128 (Ill. App. Ct. 1999).............................................................33
Larijani v. Georgetown Univ., 791 A.2d 41 (D.C. App. 2002). ...................................................................................52
Lawlor v. District of Columbia, 758 A.2d 964 (D.C. 2000).......................................................................................124
Layton v. MMM Design Group, 32 Fed. Appx. 677 (4th Cir. 2002). ............................................................................6
Leach v. Heyman, 233 F. Supp. 2d 906 (N.D. Ohio 2002). .......................................................................................133
Lee v. Denro, Inc., 605 A.2d 1017 (Md. 1992) ......................................................................................................28, 29
Leone v. New England Commc’ns, 2002 Conn. Super. LEXIS 1361 (Conn. Super. Ct. 2002). .................................55
Leverton v. AlliedSignal, Inc., 991 F. Supp. 486, 493 (E.D. Va. 1998).......................................................................31
Lewis v. Forest Pharms., Inc., 217 F. Supp. 2d 638 (D. Md. 2002). ......................................................................27, 48
Lewis v. Methodist Hosp., Inc., 326 F.3d 851 (7th Cir. 2003).....................................................................................89
Lewis v. Nationwide Mut. Ins. Co., 2003 U.S. Dist. LEXIS 5126 (D. Conn. 2003)....................................................35
Liberatore v. Melville Corp., 168 F.3d 1326 (D.C. Cir. 1999).....................................................................................24
Lincoln v. Interior Reg’l Hous. Auth., 30 P.3d 582 (Alaska 2001)..............................................................................77
Linkco, Inc. v. Fujitsu Ltd., 232 F. Supp. 2d 182 (S.D.N.Y. 2002). ............................................................................16
Lipscombe v. Crudup, 888 A.2d 1171 (D.C. 2005)......................................................................................................38
Lively v. Flexible Packaging Ass’n, 830 A.2d 874 (D.C. 2003)..................................................................................78
Livitsanos v. Superior Court, 828 P.2d 1195 (Cal. 1992)...........................................................................................109
Lockamy v. Truesdale, 182 F. Supp. 2d 26 (D.D.C. 2001). .........................................................................................54
LoPresti v. Rutland Reg’l Health Servs., Inc., 865 A.2d 1102 (Vt. 2004). ..................................................................17
Lubore v. RPM Assocs., Inc., 674 A.2d 547 (Md. 1996) .............................................................................................64
Lucini Italia Co. v. Grappolini, 231 F. Supp. 2d 764 (N.D. Ill. 2002). ......................................................................130
Luczkovich v. Luczkovich, 496 S.E. 2d 157 (Va. Ct. App. 1998). ......................................................................95, 102
Lyle v. Warner Bros. Television Prods., 132 P.3d 211 (Cal. 2006). ..........................................................................134
Lyon v. Carey, 533 F.2d 649 (D.C. Cir. 1976). ............................................................................................................52
Lyons v. Midwest Glazing, 265 F. Supp. 2d 1061 (N.D. Iowa 2003). ...........................................................................5
MacDonald v. Hinton, 836 N.E.2d 893 (Ill. App. Ct. 2005). ...............................................................................56, 134
MacDougall v. Weichert, 677 A.2d 162, 166 (N.J. 1996)............................................................................................26
MacIntosh v. Bldg. Owners & Managers Ass'n Int'l, 355 F. Supp. 2d 223 (D.D.C. 2005)..........................................81
Maines v. Cronomer Valley Fire Dept., 50 N.Y.2d 535 (1980) .................................................................................106
Makovi v. Sherwin-Williams Co., 561 A.2d 179 (Md. 1989) ................................................................................30, 33
Maksimovic v. Tsogalis, 687 N.E.2d 21 (Ill. 1997) .....................................................................................................79
Mangold v. Analytic Servs., Inc., 77 F.3d 1442 (4th Cir. 1996) ..................................................................................42
xi
Manuel v. Conn. Gen. Life Ins. Co., 1991 U.S. Dist. LEXIS 2912 (N.D. Ill. 1991)..................................................132
Manuel v. Convergys Corp., 430 F.3d 1132 (11th Cir. 2005)......................................................................................93
Mar Tech. Mech., LTD v. Chianelli Bldg. Corp., 2001 Va. Cir. LEXIS 223 (Va. Norfolk Cir. Ct. 2001)................126
Marie v. Allied Home Mortgage Corp., 402 F.3d 1 (1st Cir. 2005). ..........................................................................113
Marquis v. City of Spokane, 922 P.2d 43 (Wash. 1996). .............................................................................................26
Marrs v Marriott Corp., 830 F. Supp. 274 (D. Md. 1992). ...........................................................................................55
Marshall v. Manville Sales Corp., 6 F.3d 229 (4th Cir. 1993) .....................................................................................83
Martinez v. Cole Sewell Corp., 233 F. Supp. 2d 1097 (N.D. Iowa 2002)............................................................53, 131
Martini v. Federal Nat. Mortgage Ass’n, 977 F. Supp 464, 479 (D.D.C. 1997) ..........................................................82
Martino v. Bank of Am. Servs., 2004 Va. Cir. LEXIS 323 (Va. Charlottesville Cir. Ct. 2004). .................................40
Martino-Catt v. E. I. Dupont de Nemours & Co., 2002 U.S. Dist. LEXIS 25743 (S.D. Iowa 2002).........................119
Mason v. Richmond Motor Company, 625 F. Supp. 883 (E.D. Va. 1986) ..................................................................88
Mathis v. Liu, 276 F.3d 1027 (8th Cir. 2002)...............................................................................................................66
Maw v. Advanced Clinical Commc’ns, Inc., 846 A.2d 604 (N.J. 2004)......................................................................19
May v. Automated Data Mgmt., Inc., 1989 U.S. Dist. LEXIS 10760 (D.D.C. 1989)................................................116
McCarthy v. Texas Instruments, Inc., 999 F. Supp. 823 (E.D. Va. 1998)....................................................................29
McCloskey v. Eagleton, 789 S.W. 2d 518 (Mo. App. 1990)......................................................................................144
McCullum v. XCare.net, Inc., 212 F. Supp. 2d 1142 (N.D. Cal. 2002) .....................................................................127
McDaniel v. Fulton County Sch. Dist., 233 F. Supp. 2d 1365 (N.D. Ga. 2002). .........................................................61
McGarrity v. Berlin Metals, Inc., 774 N.E.2d 71 (Ind. Ct. App. 2002)........................................................................26
McGovern v. Deutsche Post Global Mail, LTD., 2004 U.S. Dist. LEXIS 15215 (D. Md. 2004). ...............................94
McGregor v. Grimes, 884 A.2d 605 (D.C. 2005). ......................................................................................................105
McGuire v. Tarmac Envt’l Co, Inc., 293 F.3d 437 (8th Cir. 2002). .............................................................................69
McIntosh v. Aetna Life Ins. Co., 268 A.2d 518 (D.C. 1970). ....................................................................................117
McIntyre v. Guild, Inc., 659 A.2d 398 (Md. Ct. Spec. App. 1995)..............................................................................29
McKay v. Ireland Bank, 59 P.3d 990 (Idaho Ct. App. 2002) .......................................................................................34
McLaughlin v. Murphy, 372 F. Supp. 2d 465 (D. Md. 2004). ...................................................................................121
McMahon v. Mid-America Constr. Co. of Iowa, 2000 WL 1587952 (Iowa App. Oct. 25, 2000)...............................32
McManus v. MCI Communications Corp., 748 A.2d 949 (D.C. 2000) .................................................................69, 70
McNamee v. Jenkins, 754 N.E.2d 740 (Mass. App. Ct. 2001).....................................................................................45
McNeill v. Sec. Benefit Life Ins. Co., 28 F.3d 891 (8th Cir. 1994) .............................................................................26
Medeiros v. Haw. Dep’t. of Labor and Indus. Relations, 118 P.3d 1201 (Haw. 2005)..............................................139
Medex v. McCabe, 811 A.2d 297 (Md. 2002)............................................................................................................123
Mediaworks, Inc. v. Lasky, 1999 U.S. Dist. LEXIS 13680 (E.D. Pa. 1999)................................................................49
Mehlman v. Mobil Oil Corp., 707 A.2d 1000 (N.J. 1998). ..........................................................................................77
Mena v. Key Food Stores, 2003 N.Y. Misc. LEXIS 231 (N.Y. Gen. Term 2003).......................................................74
Messina v. Fontana, 260 F. Supp. 2d 173 (D.D.C. 2003).............................................................................................38
Michael v. Sentara Health Sys., 939 F. Supp. 1220 (E.D. Va. 1996).............................................................................7
Michelin Tire Corp. v. Goff, 864 So. 2d 1068 (Ala. Civ. App. 2002)..........................................................................68
Microstrategy, Inc. v. Li, 601 S.E.2d 580 (Va. 2004). ...............................................................................................138
Mid-Atlantic Equip. Corp. v. Cape Country Club, 1997 U.S. Dist. LEXIS 12312 (E.D. Pa. 1997),.............................8
Miga v. Jensen, 96 S.W.3d 207 (Texas 2002). ...........................................................................................................118
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) ....................................................................................................50
Miller v. Bristol-Myers Squibb Co., 121 F. Supp. 2d 831 (D. Md. 2000). ..................................................................56
Miller v. Fairchild Indus., 629 A.2d 1293 (Md. 1993), ................................................................................................28
Mills v. Murray, 472 S.W.2d 6 (Mo. Ct. App. 1971). ..................................................................................................69
Milton v. IIT Research Inst., 138 F.3d 519 (4th Cir. 1998)....................................................................................20, 25
Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573 (Tex. 2002)..........................................................................47
Mission Petro. Carriers, Inc. v. Solomon, 106 S.W.3d 705 (Tex. 2003)......................................................................58
Mitchem v. Counts, 523 S.E.2d 246 (Va. 2000)...........................................................................................................31
Modern Env’ts., Inc., v. Stinnett, 561 S.E.2d 694 (Va. 2002)......................................................................................96
Molesworth v. Brandon, 672 A.2d 608 (Md. Ct. Spec. App. 1996).......................................................................28, 30
Montemayor v. Jacor Commc’ns, Inc., 64 P.3d 916 (Colo. Ct. App. 2002) ..............................................................119
xii
Montgomery County v. Jamsa, 836 A.2d 745 (Md. Ct. Spec. App. 2003).................................................................116
Montgomery v. E. Corr. Inst., 835 A.2d 615 (Md. 2003).............................................................................................76
Moore v. Kulicke & Soffa Industries, Inc., 318 F.3d 561 (3d Cir. 2003)...................................................................100
Moorpark v. Superior Court, 77 Cal. Rptr. 2d 445 (Cal. 1998)..................................................................................109
Morgan Stanley DW, Inc. v. Frisby, 163 F. Supp. 2d 1371, 1377-78 (N.D. Ga. 2001). ..............................................99
Morgan v. Nat’l R.R. Passenger Corp., 232 F.3d 1008 (9th Cir. 2000) .......................................................................68
Morgan v. Smith Barney, Harris Upham & Co., 729 F.2d 1163 (8th Cir. 1984). ..............................................114, 142
Morris v. Hartford Courant Co., 513 A.2d 66 (Conn. 1986) ..................................................................................55, 62
Motion Control Sys., Inc. v. East, 546 S.E.2d 424 (Va. 2001)...................................................................................127
Murdza v. Zimmerman, 786 N.E.2d 440 (N.Y. 2003)................................................................................................133
Murphy v. Haws & Burke, 344 A.2d 543 (Pa. Super. Ct. 1975). .................................................................................12
Muskowitz v. Progressive Insurance, 811 N.E. 2d 174 (Ohio Misc. 2004). ..............................................................144
Nagrampa v. Mailcoups Inc., 401 F.3d 1024 (9th Cir. 2005).....................................................................................115
Nanda v. Bd. of Trs. of Univ. of Ill., 219 F. Supp. 2d 911 (N.D. Ill. 2001). ..............................................................130
Natural Design, Inc. v. Rouse Co., 485 A.2d 663 (Md. 1984) .....................................................................................70
New Econ. Capital, LLC v. New Mkts. Capital Group, 881 A.2d 1087 (D.C. 2005). ...................................................8
New Horizons Elecs. Mktg., Inc. v. Clarion Corp., 561 N.E.2d 283 (Ill. App. Ct. 1990)............................................26
New River Media Group v. Knighton, 429 S.E.2d 25 (Va. 1993)................................................................................93
Newman v. Giant Food, Inc., 187 F. Supp. 2d 524 (D. Md. 2002). ...........................................................................109
Newman v. Hansen & Hempel Co., 2002 U.S. Dist. LEXIS 21233 (N.D. Ill. 2002)...................................................39
Newport News Indus. v. Dynamic Testing, Inc., 130 F. Supp. 2d 745 (E.D. Va. 2001)..............................................97
News World Commc’ns, Inc. v. Thompsen, 878 A.2d 1218 (D.C. 2005)....................................................................15
Next Century Commc’ns Corp. v. Ellis, 318 F.3d 1023 (11th Cir. 2003)..................................................................129
Nickens v. Labor Agency of Metro. Wash., 600 A.2d 813 (D.C. 1991). .....................................................................69
Nolting v. Nat’l Capital Group, Inc., 621 A.2d 1387 (D.C. 1993). ..............................................................................23
Novacare Orthotics & Prosthetics E., Inc. v. Speelman, 528 S.E.2d 918 (N.C. Ct. App. 2000)..................................98
Novosel v. Nationwide Ins. Co., 721 F.2d 894 (3d Cir. 1983) .....................................................................................28
Noye v. Hoffmann – La Roche Inc., 570 A.2d 12 (N.J. Super. 1990)..........................................................................11
Nw. BEC-Corp v. Home Living Serv., 41 P.3d 263 (Idaho 2002).............................................................................100
O’Grady v. Superior Court, 2006 Cal. App. LEXIS 802 (Cal. Ct. App. 2006)..........................................................139
O’Neill v. Sears Roebuck & Co., 108 F. Supp. 2d 443 (E.D. Pa. 2000) ....................................................................116
O’Toole v. Carr, 815 A.2d 471 (N.J. 2003)................................................................................................................133
O’Toole v. Northrop Grumman Corp., 305 F.3d 1222 (10th Cir. 2002). ...................................................................117
Oakley v. May Dept. Stores, 17 F. Supp. 2d 533 (E.D. Va. 1998)...............................................................................29
Oaks v. 3M Co., 2006 U.S. App. Lexis 16170, (6th Cir. 2006). ..................................................................................12
Olander v. Compass Bank, 363 F.3d 560 (5th Cir. 2004). ...........................................................................................96
Olander v. State Farm Mut. Auto. Ins. Co., 317 F.3d 807 (8th Cir. 2003).....................................................................4
Omniplex World Serv. Corp. v. US Investigations Serv., Inc., 618 S.E.2d 340 (Va. 2005). .......................................94
Oparaugo v. Watts, 884 A.2d 63 (D.C. 2005). .............................................................................................................38
Orci v. Insituform East, Inc., 901 F. Supp. 978 (D. Md. 1995) ....................................................................................33
Orell v. UMass Mem’l Med. Ctr., 203 F. Supp. 2d 52 (D. Mass. 2002). .....................................................................54
Ostrander v. Farm Bureau Mut. Ins. Co., 851 P.2d 946 (Idaho 1993)..........................................................................26
P.C. Yonkers, Inc. v. Celebrations the Party & Seasonal Superstore, LLC, 428 F.3d 504 (3d Cir. 2005). ...............139
Padco Advisors, Inc. v. Omdahl, 185 F. Supp. 2d 575 (D. Md. 2002).........................................................................94
Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054 (11th Cir. 1998) ...............................................................115
Palazzola v. Karmazin Prods. Corp., 565 N.W.2d 868 (Mich. 1997).........................................................................107
Pallone v Marshall Legacy Inst., 97 F. Supp. 2d 742 (E.D. Va. 2000). .....................................................................123
Paramount Termite Control Co., Inc. v. Rector, 380 S.E.2d 922 (Va. 1989).........................................................93, 97
Pardue v. Center City Consortium Schs. of the Archdiocese of Wash., Inc., 875 A.2d 669 (D.C. 2003)....................79
Parr v. Alderwoods Group, Inc., 604 S.E.2d 431 (Va. 2004). ......................................................................................94
Parsons v. United Techs. Corp., 700 A.2d 655 (Conn. 1997) ......................................................................................55
Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354 (Ky. 2005) .....................................................................................12
Paskowitz v. Wohlstadter, 822 A.2d 1272 (Md. Ct. Spec. App. 2003). .....................................................................129
xiii
Paul v. Howard Univ., 754 A.2d 297 (D.C. 2000).. .....................................................................................................89
Paul v. Lankenau Hosp., 569 A.2d 346 (Pa. 1990).......................................................................................................28
Pecenka v. Fareway Stores, Inc., 672 N.W.2d 800 (Iowa 2003). .................................................................................18
Pemco Corp. v. Rose, 257 S.E.2d 885 (W. Va. 1979)..................................................................................................98
Perodeau v. City of Hartford, 792 A.2d 752 (Conn. 2002) ............................................................................55, 56, 108
Peterson v. Arlington Hospitality Staffing, Inc., 689 N.W.2d 61 (Wis. Ct. App. 2004). ...........................................106
Peterson v. Wilmur Commc’ns, Inc., 205 F. Supp. 2d 1014 (E.D. Wis. 2002)............................................................79
Petrovski v. Fed. Express Corp., 210 F. Supp. 2d 943 (N.D. Ohio 2003)....................................................................27
Phelan v. May Dep't Stores Co., 819 N.E.2d 550 (Mass. 2004)...................................................................................41
Pickett v. Colonel of Spearfish, 209 F. Supp. 2d 999 (D.S.D. 2001). ........................................................................107
Pietruszynski v. McClier Corp., 788 N.E.2d 82 (Ill. App. Ct. 2003). ..........................................................................19
Po River Water & Sewer Co. v. Indian Acres Club of Thornburg, Inc., 495 S.E.2d 478 (Va. 1998). .........................12
Pollock v. Wetterau Food Distrib. Group, 11 S.W.3d 754 (Mo. Ct. App. 2000). ........................................................86
Pope-Payton v. Realty Mgmt. Servs., Inc., 815 A.2d 919 (Md. Ct. Spec. App. 2003). .............................................132
Porterfield v. Mascari, 788 A.2d 242 (Md. 2002) ........................................................................................................33
Prentice v. UDC Advisory Servs., 648 N.E.2d 146 (Ill. App. Ct. 1995). .....................................................................13
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).......................................................................................................4
Prof’l Liab. Consultants v. Todd, 468 S.E.2d 201 (N.C. 1996)....................................................................................92
Prysak v. R.L. Polk Co., 483 N.W.2d 629 (Mich. Ct. App. 1992) ...............................................................................27
Pytlinkski v. Brocar Prod., Inc., 760 N.E.2d 395 (Ohio 2002).....................................................................................20
Raffaelli v. Advo, Inc., 218 F. Supp. 2d 1022 (E.D. Wis. 2002)................................................................................123
Rash v. Hilb, Rogal & Hamilton Co. of Richmond, 467 S.E.2d 791 (Va. 1996) .........................................................93
Rauh v. Coyne, 744 F. Supp. 1186 (D.D.C. 1990) .......................................................................................................70
Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985) .....................................79
Reddy v. Cmty. Health Found. of Man, 298 S.E.2d 906 (W. Va. 1982)......................................................................92
Reeves v. Hanlon, 95 P.3d 513 (Cal. 2004)..................................................................................................................71
Reid v. Boyle, 527 S.E.2d 137 (Va. 2000). ..................................................................................................................14
Reiger v. Rhone-Poulenc Roer, Inc., 1995 WL 395948 (E.D. Pa. June 30, 1995).....................................................119
Rencor Controls, Inc. v. Stinton, 230 F. Supp. 2d 99 (D. Me. 2002). ........................................................................100
Rendall-Speranza v. Nassim, 107 F.3d 913 (D.C. Cir. 1997).......................................................................................53
Reno v. Baird, 957 P. 2d 1333 (Cal. 1998)...................................................................................................................83
Republic of Haiti v. Crown Charters, Inc., 667 F. Supp. 839 (S.D. Fla. 1987)..........................................................127
Reust v. Alaska Petroleum Contrs., Inc., 127 P.3d 808 (Alaska 2005). .......................................................................18
Reynolds & Reynolds Co. v. Hardee, 932 F. Supp. 149 (E.D. Va. 1996)....................................................................97
Richards v. Detroit Free Press, 433 N.W. 2d 320 (Mich. App. 1988)........................................................................143
Riesett v. W.B. Doner & Co., 293 F.3d 164 (4th Cir. 2002). .........................................................................................3
Riggs v. Home Builders Inst., 203 F. Supp. 2d 1 (D.D.C. 2002). ..............................................................22, 69, 70, 71
Rinck v. Ass’n Reserve City Bankers, 676 A.2d 12 (D.C. App. 1996)........................................................................69
Rivero v. Am. Fed’n of State, County & Mun. Employees, 2003 Cal. App. LEXIS 123 (Cal. Ct. App. 2003). .......128
Roanoke Eng’g Sales Co. v. Rosenbaum, 290 S.E.2d 882 (Va. 1982).................................................................93, 127
Roberson v. Wal-Mart Stores, Inc., 44 P.3d 164 (Ariz. Ct. App. 2002).......................................................................11
Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101 (D.D.C. 2002). .........................................................................13
Robinson v. District of Columbia, 748 A.2d 409 (D.C. 2000) .....................................................................................47
Rocky Mtn. Hosp. & Med. Serv. v. Mariani, 916 P.2d 519 (Colo. 1996)....................................................................18
Rodolico v. Unisys Corp., 1999 U.S. Dist. LEXIS 13203 (E.D.N.Y. 1999)................................................................85
Rogala v. District of Columbia, 161 F.3d 44 (D.C. Cir. 1998).....................................................................................54
Rogers v. Savings First Mortgage, LLC, 362 F. Supp. 2d 624 (D. Md. 2005)...........................................................121
Rolsen v. Lazarus, Inc., 2000 Ohio App. LEXIS 4466 (Ohio App. 2000)...................................................................51
Roniger v. McCall, 22 F. Supp. 2d 156, 169 (S.D.N.Y. 1998).....................................................................................71
Rosenberg v. MetLife, Inc., 2006 U.S. App. Lexis 16195 (2d Cir. 2006)..................................................................142
Ross v. Holton, 640 S.W.2d 166 (Mo. Ct. App. 1971);................................................................................................69
Rothrock v. Rothrock Motor Sales, Inc., 883 A.2d 511 (Pa. 2005)..............................................................................17
Rowan v. Tractor Supply Co., 559 S.E.2d 709 (Va. 2002). .........................................................................................30
xiv
Royster v. Board of Trustees, 774 F.2d 618 (4th Cir. 1985) ........................................................................................46
Ruffing v. Union Carbide Corp., 2003 N.Y. App. Div. LEXIS 9683 (N.Y. App. Div. 2003). ....................................62
Russ v. Van Scoyoc, 59 F. Supp. 2d 20 (D.D.C. 1999)................................................................................................82
Sabb v. S.C. State Univ., 567 S.E.2d 231 (S.C. 2002). ................................................................................................61
Saks Fifth Avenue, Inc. v. James, Ltd., 630 S.E.2d 304 (Va. 2006). ...........................................................................94
Samuel Stores, Inc. v. Abrams, 108 A.2d 541 (Conn. 1919)........................................................................................92
Sanchez v. Life Care Ctrs., 855 P.2d 1256 (Wyo. 1993)..............................................................................................11
Sanchez v. Magafan, 892 A.2d 1130 (D.C. 2006)......................................................................................................125
Sanders v. Casa View Baptist Church, 134 F.3d 331 (5th Cir. 1998) ..........................................................................39
Santiago v. City of Vineland, 107 F. Supp. 2d 512 (D.N.J. 2000) ...............................................................................82
Schaefer v. Comm’r, 1995 WL 542395 (T.C. 1995) ..................................................................................................123
Schara v. Commercial Envelope Mfg. Co., Inc., 321 F.3d 240 (1st Cir. 2003). ........................................................109
Schiff v. AARP, 697 A.2d 1193 (D.C. 1997). ..............................................................................................................16
Schlage Lock Co. v. Whyte, 2002 Cal. App. LEXIS 4634 (Cal. Ct. App. 2002).......................................................101
Schram v. Albertson’s Inc., 934 P.2d 483 (Or. Ct. App. 1997)....................................................................................85
Schryer v. VBR, 1991 Va. Cir. LEXIS 285 (Va. Fairfax Cir. Ct. 1991) ......................................................................88
Schupp v. Jump! Info. Tech., Inc., 65 Fed. Appx. 450 (4th Cir. 2003). .....................................................................126
Scott v. Pacific Gas and Electric Co., 904 P.2d 834 (Calif. 1995). ............................................................................143
Scully v. US WATS, Inc., 238 F.3d 497 (3d Cir. 2001).....................................................................................118, 124
Se. Apartments Mgmt., Inc. v. Jackman, 513 S.E.2d 395 (Va. 1999). .........................................................................60
Sears v. Acheson, Topeka & Kansas City Ry. Co., 749 F.2d 1451 (10th Cir. 1984).................................................116
Shabazz v. Bob Evans Farms, Inc., 881 A.2d 1212 (Md. Ct. Spec. App. 2005). .........................................................81
Shabazz v. PYA Monarch, LLC, 271 F. Supp. 2d 797 (E.D. Va. 2003). .....................................................................45
Sharpe v. St. Luke’s Hosp., 821 A.3d 1215 (Pa. 2003). ...............................................................................................58
Shecter v. Merchants Home Delivery, Inc., 2006 D.C. App. LEXIS 30 (D.C. 2006)..................................................59
Sheperd v. Hunterdon Developmental Ctr., 803 A.2d 611 (N.J. 2002)........................................................................84
Sheppard v. Dickstein, Shapiro, Morin & Oshinsky, 59 F. Supp. 2d 27 (D.D.C. 1999)........................................69, 82
Shovelin v. Cent. N.M. Elec. Coop. Inc., 850 P.2d 996 (N.M. 1993) ..........................................................................34
SIFCO Indus. Inc. v. Advanced Plating Tech., Inc., 867 F. Supp. 155 (S.D.N.Y. 1994).............................................98
Silo v. CHW Med. Found., 45 P.3d 1162 (Cal. 2002)..................................................................................................25
Silva v. Am. Fed’n of State, County, and Mun. Employees, 37 P.3d 81 (N.M. 2001). ...............................................36
Silvestri v. Optus Software, Inc., 814 A.2d 602 (N.J. 2003). .........................................................................................6
Simko v. Graymar, 464 A.2d 1104 (Md. 1983)............................................................................................................98
Simonelli v. Anderson Concrete Co., 650 N.E.2d 488 (Ohio 1994). ...........................................................................34
Simonson v. Trinity Reg’l Health Sys., 221 F. Supp. 2d 982 (N.D. Iowa 2002). ........................................................32
Sisco v. GSA Nat’l Capital Fed. Credit Union, 689 A.2d 53 (D.C. 1997) .....................................................................9
Sistare-Meyer v. YMCA, 1997 Cal. App. LEXIS 790 (Cal. At. App. 1997) ...............................................................26
Skywalker Commc’ns of Ind., Inc. v. Skywalker Commc’ns, Inc., 333 F.3d 829 (7th Cir. 2003). .............................14
Slone v. Aerospace Design & Fabrication, Inc., 676 N.E.2d 1263 (Ohio 1996)........................................................123
Slotten v. Hoffman, 999 F.2d 333 (8th Cir. 1993)........................................................................................................43
Smelkinson Sysco v. Harrell, 875 A.2d 188 (Md. Ct. Spec. App. 2005). ..................................................................125
Smith v. Chase Group Inc., 343 F.3d 801 (8th Cir. 2004)..........................................................................................120
Snow v. McClosky, 896 So. 2d 787 (Fla. Dist. Ct. App. 2005). ..................................................................................75
Snyder v. Med. Serv. Corp. of E. Wash., 35 P.3d 1158 (Wash. 2001).........................................................................55
Sorrells v. Garfinckel’s Brooks Brothers, Miller & Rhoads, Inc., 565 A.2d 285 (D.C. 1989) ....................................69
Spratley v. State Farm Mut. Auto. Ins. Co., 78 P.3d 603 (Utah 2003).......................................................................136
Stanek v. Greco, 323 F.3d 476 (6th Cir. 2003).............................................................................................................70
Stanley v. McCarver, 92 P.3d 849 (Ariz. 2004). ..........................................................................................................56
Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089 (3d Cir. 1995) ........................................................................116
State of Md. Comm’n on Human Relations v. Freedom Express/Domegold, Inc., 825 A.2d 354 (Md. 2003). ........135
Stephenson v. Yellow Freight Sys. Inc., 1999 Ohio App. LEXIS 4994 (Ohio Ct. App. 1999) ...................................27
Sterbenz v. Attina, 205 F. Supp. 2d 65 (E.D.N.Y. 2002). ............................................................................................72
Stevenson v. Branch Banking and Trust Corp., 861 A.2d 735 (Md. Ct. Spec. App. 2004). ..............................118, 121
xv
Stockard v. Moss, 706 A.2d 561 (D.C. 1997)...............................................................................................................47
Storey v. Patient First Corp., 207 F. Supp. 2d 431 (E.D. Va. 2002).......................................................................29, 67
Stover v. Rite Aid Corporation, No. 00ca3070 (D.C. Super. Ct. 2002). ......................................................................73
Strass v. Kaiser Found. Health Plan of Mid-Atlantic, 744 A.2d 1000 (D.C. 2000) .....................................................10
Strausbaugh v. Ohio Dep’t. of Transp., 782 N.E.2d 92 (Ohio Ct. App. 2002)...........................................................135
Sturdza v. United Arab Emirates, 281 F.3d 1287 (D.C. Cir. 2002)............................................................................124
Sullivan v. Heritage Found., 399 A.2d 856 (D.C. 1979) ..............................................................................................70
Sumner v. Goodyear Tire & Rubber Co, 398 N.W.2d 368 (Mich. 1986) ....................................................................78
Sutphin v. United American Ins. Co., 154 F. Supp. 2d 906 (W.D. Va. 2000) .............................................................60
Symeonidis v. Paxton Capital Group, Inc., 220 F. Supp. 2d 478 (D. Md. 2002). ........................................................33
Szaller v. Am. Nat’l Red Cross, 293 F.3d 148 (4th Cir. 2002).....................................................................................20
Tacka v. Georgetown Univ., 193 F. Supp. 2d 43 (D.D.C. 2001). ................................................................................47
TBG Ins. Servs. Corp. v. Superior Court of L.A., 2002 Cal. App. LEXIS 1839 (Cal. Ct. App. 2002)........................65
Terrell v. Amsouth Inv. Servs., Inc., 209 F. Supp. 2d 1286 (M.D. Fla. 2002). ..........................................................115
Thayer v. State, 653 N.W.2d 595 (Iowa 2002)...........................................................................................................137
The Fonda Group, Inc. v. Erving Industries, Inc., 897 F. Supp 230 (E.D. Pa. 1995).................................................141
Theisen v. Covenant Med. Ctr, Inc., 636 N.W.2d 74 (Iowa 2001)...............................................................................61
Thibodeau v. Design Group One Architects, LLC, 802 A.2d 731 (Conn. 2002). ........................................................24
Thompson v. Coborn’s Inc., 871 F. Supp. 1097 (N.D. Iowa 1994)..............................................................................34
Thompson v. Jasas Corp., 212 F. Supp. 2d 21 (D.D.C. 2002)......................................................................................53
Tidewater Opportunity Project, Inc. v. Bade, 435 S.E.2d 131, 132 (Va. 1993) ...........................................................46
Tiernan v. Charleston Area Med. Ctr., 506 S.E.2d 578 (W. Va. 1998)........................................................................27
Tiernan v. Charleston Area Med. Ctr., 575 S.E.2d 618 (W. Va. 2002)........................................................................14
Tillman v. Comelot, 408 F.3d 1300 (10th Cir. 2005). ..................................................................................................62
Timber Tech Engineered Bldg. Prods. v. Home Ins. Co., 55 P.3d 952 (Nev. 2002)....................................................72
Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995)....................................................................................................81
Toussaint v. Blue Cross, 292 N.W.2d 880 (Mich. 1980)..............................................................................................12
Towson Univ. v. Conte, 862 A.2d 941 (Md. 2004). .......................................................................................................2
Trabing v. Kinko's, Inc., 57 P.3d 1248 (Wyo. 2002)....................................................................................................10
Tricoski v. Lab. Corp. of Am., 216 F. Supp. 2d 444 (E.D. Pa. 2002). .........................................................................57
Twentieth Centuary Fox Film Corp. v. Entm’t Distrib., 429 F.3d 869 (9th Cir. 2005)..............................................143
Twigg v. Hercules Corp., 406 S.E.2d 52 (W. Va. 1990) ..............................................................................................65
Tymshare, Inc. v. Covell, 727 F.2d 1145 (D.C. Cir. 1984). .........................................................................................89
Tynes v. Shoney’s Inc., 867 F. Supp. 330 (D. Md. 1994). .........................................................................................109
Tyson v. Cigna Corp., 918 F. Supp. 836 (D.N.J. 1996). ..............................................................................................85
U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d 731 (D.C. Cir. 1998)........................................................................9
Uebelacker v. Cincom Systems, Inc., 608 N.E.2d 858 (Ohio 1988) ............................................................................51
Union of Needletrades, Indus. & Textile Employees v. Jones, 603 S.E.2d 920 (Va. 2004). .......................................40
Union Underwear Co. v. Barnhart, 50 S.W.3d 188 (Ky. 2001)....................................................................................35
United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731 (D.C. Cir. 1998)........................................................32
United States v. EER Systems Corp., 950 F. Supp. 130 (D. Md. 1996).......................................................................16
Varghese v. Honeywell International, Inc., 424 F.3d 411 (4th Cir. 2005). ................................................................120
Varian Medical Sys. v. Delfino, 106 P.3d 958 (Cal. 2005). .........................................................................................42
Vesprini v. Shaw Indus., Inc., 315 F.3d 37 (1st Cir. 2002) ............................................................................................4
Vivian v. Madison, 601 N.W. 2d 872 (Iowa 1999). .....................................................................................................82
Vizi v. Dulles Orthopedic Group, PC, 2003 Va. Cir. LEXIS 33163 (Va. Loudon Cir. Ct. 2003). ................................7
Vorpagel v. Maxell Corp. of Am., 775 N.E.2d 658 (Ill. App. Ct. 2002)......................................................................26
Wade S. Dunbar Ins. Agency, Inc. v. Barber, 556 S.E.2d 331 (N.C. App. 2001)........................................................98
Wade v. Chase Manhattan Mortgage Corp., 994 F. Supp. 1369 (N.D. Ala. 1997). .....................................................63
Wade v. Kessler Inst., 798 A.2d 1251 (N.J. 2002) .......................................................................................................11
Walk v. Hartford Cas. Ins. Co., 852 A.2d 98 (Md. 2004). .........................................................................................119
Walker v. Boeing Corp., 218 F. Supp. 2d 1177 (C.D. Cal. 2002). .......................................................................71, 109
Walker v. Grand Central Sanitation, Inc., 634 A.2d 237 (Pa. 1993). ...........................................................................42
xvi
Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873 (D.C. 1997). ......................................24, 48, 51, 82
Walsh v. Alarm Sec. Group, Inc., 230 F. Supp. 2d 623 (E.D. Pa. 2002)......................................................................63
Walton v. Johnson & Johnson Servs., Inc., 203 F. Supp. 2d 1312 (M.D. Fla. 2002)...................................................54
Warnek v. ABB Combustion Eng’g Services, Inc., 972 P.2d 453 (Wash. 1999).........................................................22
Warner v. Buck Creek Nursery, Inc., 149 F. Supp. 2d 246 (W.D. Va. 2001). .............................................................67
Washington v. Guest Servs., Inc., 718 A.2d 1071 (D.C. 1998)....................................................................................23
Wasserman v. Potamkin Toyota, Inc., 1998 U.S. Dist. LEXIS 16769 (E.D. Pa. 1998). ..............................................84
Waterfront Marine Constr., Inc. v. N. End 49ers Sandbridge Bulkhead Groups A, B, and C, 468 S.E.2d 894 (Va.
1996). ......................................................................................................................................................................115
Watson v. Peoples Sec. Life Ins. Co., 588 A.2d 760 (Md. 1991)...........................................................................26, 27
Weaver v. Gross, 605 F. Supp. 210, 215 (D.D.C. 1985) ..............................................................................................71
Weems v. Federated Mut. Ins. Co., 220 F. Supp. 2d 979 (N.D. Iowa 2002)................................................................52
Weinstein v. Equitable Life Assurance Soc’y, 1996 U.S. Dist. LEXIS 14327 (E.D. Pa. 1996). ...............................115
Welch v. Illinois Supreme Court, 751 N.E.2d 1187 (Ill. 2001)..................................................................................130
Weltzin v. Nail, 618 N.W.2d 293 (Iowa 2000)...........................................................................................................105
Wesley v. Howard Univ., 3 F. Supp. 2d 1 (D.D.C. 1998). ...........................................................................................71
West v. MCI Worldcom, Inc., 205 F. Supp. 2d 531 (E.D. Va. 2002............................................................................69
Westfall v. Brentwood Serv. Group, Inc., 2000 Tenn. App. LEXIS 759 (Tenn. Ct. App. 2000)...............................140
Westfall v. Erwin, 484 U.S. 292 (1988) .......................................................................................................................43
White v. Jungbauer, 128 P.3d 263 (Colo. Ct. App. 2005). .........................................................................................145
White v. State, 929 P.2d 396 (Wash. 1997)..................................................................................................................23
Whiting-Turner Contracting Co. v. Fitzpatrick, 783 A.2d 667 (Md. 2001). ..............................................................122
Wholey v. Sears Roebuck, 803 A.2d 482 (Md. 2002)..................................................................................................24
Wiles v. Medina Auto Parts, 773 N.E.2d 526 (Ohio 2002). .........................................................................................30
Wiley v. Royal Cup, Inc., 370 S.E.2d 744 (Ga. 1988) .................................................................................................92
Willard Packaging Co., Inc. v. Javier, 2006 Md. App. Lexis 73 (Md. Ct. Spec. App. 2006). .....................................91
Williams v. Dominion Tech Partners, LLC, 576 S.E. 2d 752 (2003).........................................................................105
Williams v. Fed. Express, 211 F. Supp. 2d 1257 (D. Or. 2002). ..................................................................................53
Wilmington v. Harvest Ins. Cos., 521 N.E.2d 953, 956 (Ind. Ct. App. 1988)..............................................................26
Wilson v. Amerada Hess Corp., 773 A.2d 1121 (N.J. 2001)........................................................................................11
Windesheim v. Verizon Network Integration Corp., 212 F. Supp. 2d 456 (D. Md. 2002). ...........................................7
Wior v. Anchor Indus., Inc., 669 N.E.2d 172 (Ind. 1996) ............................................................................................30
Wise v. Complete Staffing Servs., Inc., 56 S.W.3d 900 (Tex. App. 2001). .................................................................60
Woodfield v. Providence Hosp., 779 A.2d 933 (D.C. 2001)........................................................................................48
Worthington v. City of New Haven, 1999 U.S. Dist. LEXIS 16104 (D. Conn. 1999)...............................................109
Wounaris v. W.Va. State Coll., 588 S.E.2d 406 (W. Va. 2003)...................................................................................35
Wright v. Universal Maritime Serv. Co., 525 U.S. 70 (1998) ....................................................................................112
Wuchenick v. Shenandoah Memorial Hosp., Inc., 215 F.3d 1324 (4th Cir. 2000) ......................................................67
Yanowitz v. L’Oreal USA, Inc., 116 P.3d 1123 (Cal. 2005)......................................................................................134
Zahodnick v. Int’l Bus. Machs. Corp., 135 F.3d 911, 914 (4th Cir. 1997),..................................................................32
Zimmerman v. Buchheit of Sparta, Inc., 645 N.E.2d 877 (Ill. 1994). ..........................................................................23
xvii
STATUTES
Florida – Section 15-21 of St. Petersburg City Code....................................................................................................86
New Jersey Fair Employment Practices Act.................................................................................................................87
New Jersey Law Prohibits Flag Discrimination ...........................................................................................................87
Philadelphia City Ordinance Bill No. 010719 (Sexual Orientation/Gender Identification Discrimination)................86
Rhode Island – Sexual Harassment, Education, and Training Law..............................................................................87
The Illinois Human Rights Act .....................................................................................................................................87
Virginia Genetic Testing Law.......................................................................................................................................87
Virginia Uniform Trade Secrets Act...........................................................................................................................127
OTHER AUTHORITIES
“You’re Fired! And Don’t Forget Your Noncompete...”: The Enforceability of Restrictive Covenants in Involuntary
Discharge Cases, 1 DePaul Bus. & Comm. L.J. 1 (Fall 2002). ..............................................................................141
xviii
State Employment Law Developments
by
Robert B. Fitzpatrick, Esq.*
Robert B. Fitzpatrick, PLLC
Universal Building North
Suite 640
1825 Connecticut Avenue, N.W.
Washington, D.C. 20009-5728
Telephone: (202) 588-5300
Facsimile: (202) 588-5023
E-mail: fitzpatrick.law@verizon.net
Website: http://www.robertbfitzpatrick.com
* Robert B. Fitzpatrick of the Washington, D.C. Law Office of Robert B. Fitzpatrick, PLLC represents both
employers and employees in employment law and employee benefits matters. Mr. Fitzpatrick has concentrated his
practice in employment law disputes for over thirty-five years. In addition to his active employment practice, he
acts as a mediator of employment disputes and testifies as an expert witness in employment cases. He has served on
numerous bar association committees related to employment law.
Express Written Contract
Joy v. Hay Group, Inc., 403 F.3d 875 (7th Cir. 2005).
The Seventh Circuit overruled the lower court’s grant of defendant’s motion for summary
judgment. The plaintiff brought a case against her former employer seeking to enforce a
severance clause which awarded her one year’s severance pay if she was terminated “for reasons
other than cause.” The contract did not define cause. The Seventh Circuit fund term “cause” to
be ambiguous and remanded.
Fields v. Thompson Printing Co., Inc., 363 F.3d 259 (3d Cir. 2004).
The Third Circuit Court of Appeals rejected the argument that public policy would be
violated if a former corporate executive continued to receive contractual payments of salary and
benefits after his discharge over allegations of sexual harassment (hostile work environment).
The allegations were settled out of court so the executive had not been found guilty of
harassment and the contract did not contain a clause requiring forfeiture of salary or benefits
given a termination for cause.
In the case, the employee who was terminated filed Employment Retirement Income
Security Act (ERISA), New Jersey Wage Law, breach of contract, and equitable remedies claims
against his former employer and the CEO of the company. Defendants argued that the N.J. Ct.
R. 4:30A precluded the claims due to the prior sexual harassment suit. The court ruled that the
facts under the ERISA and breach of contract claims were separate from the facts in the settled
sexual harassment suit. The issue of the employment contract turned on contractual language
and principles and therefore the entire controversy doctrine under Rule 4:30A did not apply.
Additionally, enforcing the employment contract did not require reinstating someone who
may have engaged in acts of sexual harassment, which could violate public policies against
hostile work environments. The court also determined that though covenants of good faith and
fair dealing may fill in the gaps of a contract, they will not override the express language of a
contract. Here, the language was clear that the employee was to retain benefits and salary even if
he was fired. Therefore, the employer had to honor the employment contract and pay the fired
employee according to the terms of the contract.
Towson Univ. v. Conte, 862 A.2d 941 (Md. 2004).
In an a five to two decision, the Maryland Court of Appeals held that for an explicit,
written just-cause contract, the jury in a breach action can only review the objective
reasonableness of the employer’s decision to discharge. In essence, the jury can only review
whether the employer acted in good faith and based its decision on a reasoned conclusion and
facts reasonably believed to be true by the employer. The court reiterated throughout its decision
that the jury may not conduct de novo review on whether the facts are correct.
In Conte, Dr. Michael Conte’s contract with Towson University stipulated that he could
only be terminated for “just cause.” He was fired after the University alleged that he was at fault
for the series of accounting irregularities that led to a $2.3 million reduction in state funding for
the University. At trial, the jury found that the University did not prove by a preponderance of
the evidence that they had just cause to fire Dr. Conte under the contract and awarded Dr. Conte
$926,822 in damages.
The decision made a distinction between satisfaction contracts and expressed written “for
cause” contracts. While the standard in Maryland for satisfaction contracts is a subjective one,
the court held that jury’s limited standard of review for expressed “for cause” contracts must be
an objective one.
The court also looked to California law and relied on Cotran v. Rollins, 948 P.2d 412
(Cal. 1998), a case involving an employment manual, for the proposition that this very limited
jury review using an objective standard of reasonable good faith belief which was adopted in
Cotran for implied contracts should be imported into expressed written “for cause” contracts.
Gerow v. Rohm & Haas Co., 308 F.3d 721 (7th Cir. 2002).
In a case of first impression – “The parties could not find any published decision
discussing this agreement’s language, or any close variation, and neither could we” – Judge
Easterbrook, writing for the panel, held that a senior executive of an acquired company who had
been awarded a “golden parachute” agreement granting him lucrative severance benefits in the
event a change of control occurred, and who had negotiated an additional agreement with the
acquiring company offering him an additional $1 million in exchange for a release of all claims
and an extension of a non-competition agreement from two to three years, could not receive the
$10 million he would have received had he remained employed by the company. Further, the
agreement provided that the company would pay all legal fees reasonably incurred by the
plaintiff-executive as a result of any contest, regardless of the outcome, initiated by the company
or the executive regarding the validity, enforceability of, or liability under, any provision of the
agreement. The court of appeals rejected his claim for appellate legal fees, stating that once the
district court in its thorough opinion exposed the weaknesses in this case of first impression, it
was unreasonable, although not frivolous, to proceed further and he “should have packed up his
attaché case and retired from the fray.”
Riesett v. W.B. Doner & Co., 293 F.3d 164 (4th Cir. 2002).
In the controversy before the Fourth Circuit, Maryland choice of law rules applied. In
Maryland, the law of the jurisdiction where the contract was made applies to matters regarding
the validity and interpretation of contract provisions and a contract is made where the last act
necessary to make the contract binding occurs. Here, the last act was the signature of the sole
remaining party. As the last signing party executed the agreement in Michigan, the law of that
state applied.
Vesprini v. Shaw Indus., Inc., 315 F.3d 37 (1st Cir. 2002), affirming 221 F.Supp. 2d 44 (D.
Mass. 2002).
The First Circuit Court of Appeals affirmed the district court’s dismissal of plaintiff’s
breach-of-contract and constructive discharge claims. Employer terminated plaintiff employee
after plaintiff’s “outburst” profanity, a violation of the plaintiff’s signed Standards of Ethical
Conduct Agreement, which listed termination of employment as a consequence of violation. The
First Circuit held that plaintiff failed to provide any “direct evidence” to show that using
plaintiff’s use of profanity as motive for his termination was purely pretextual and the plaintiff’s
age was the underlying reason for the termination. The court followed the reasoning in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989) which suggests that in terminations based upon
both discriminatory and non-discriminatory reasons, trial by jury is the proper course of action
only if the plaintiff presents “direct evidence” of the existence of a discriminatory motive behind
the termination.
Olander v. State Farm Mut. Auto. Ins. Co., 317 F.3d 807 (8th Cir. 2003) (en banc), reversing 278
F.3d 794 (8th Cir. 2002).
Over the strong dissent of Judge Loken, the majority held, applying North Dakota law,
that an agency agreement was ambiguous regarding the question whether the agent was
terminable at will and thus parole evidence was admissible to resolve the ambiguity. The
majority held that the contractual proviso that the agency could be terminated by either party by
written notice created the ambiguity in light of language in the agreement providing for a
termination review procedure and language in the preamble that the parties expected that a
mutually satisfactory relationship will be established and maintained. Judge Loken, in dissent,
stated that the majority had ignored the general rule that silence alone does not create an
ambiguity. He pointed out that every court that had reviewed this form agreement had concluded
that it is unambiguously terminable at-will. In closing, Judge Loken stated: “I therefore hope
that the Supreme Court of North Dakota, if presented the opportunity, will squarely reject this
distortion of North Dakota contract law.”
The full Eighth Circuit Court of Appeals reheard the case, holding that an agency
agreement between an insurance agent and his employer was unambiguously terminable at-will,
and that there was thus no breach of the agency contract when the defendant corporation
terminated the agent after he refused to take a leave of absence after being charged with murder.
The Eighth Circuit stated that the agreement was silent as to duration which, without more, is “an
unambiguous declaration that it is terminable at will by either party” and that the two other
provisions that allowed for (1) a review upon request of the terminated employee and (2) a
preamble that speaks of a “mutually satisfactory relationship” that is created “by the full and
faithful observance and performance of the obligations and responsibilities” set forth in the
contract, were not enough under North Dakota law to create an ambiguity. North Dakota law
requires looking at the four corners of the contract only and does not allow extrinsic evidence as
to whether a contract is ambiguous. The dissenting judges argued that the two aforementioned
provisions did create an ambiguity and that summary judgment was inapposite as factual
determination could have helped to resolve the ambiguities.
Detroit Tigers, Inc. v. Ignite Sports Media, LLC, 203 F. Supp. 2d 789 (E.D. Mich. 2002).
The court held that, in Illinois, a signature on the written contract is not a per se requisite
to enforcement. Whether a signature is a condition precedent to the completion of the contract is
a question of intent. In the instant case, the contract had no limiting language suggesting that a
signature was a condition precedent to the formation of a contract, and thus the acts or conduct of
the parties may meet the requirement for mutual assent.
Brozo v. Oracle, 324 F.3d 661 (8th Cir. 2003).
The Court of Appeals for the Eighth Circuit reversed a lower court judgment for a
plaintiff-employee, holding that an employment contract between was not ambiguous where an
employer could change the commission under the contract at any time, where the contract was
negotiated at arms-length, and where the Executive Vice President of the employer had final
discretion respecting the administration and interpretation of the contract. The appellate court
also held that the employee was unable to counter the employer’s Vigoro argument that a
contract term left to the discretion of one party is virtually unreviewable, because the employee
had not alleged bad faith, fraud, or gross mistake at trial, and an appellate court may only
entertain new legal and not new factual arguments.
Lyons v. Midwest Glazing, 265 F. Supp. 2d 1061 (N.D. Iowa 2003).
The Northern District Court of Iowa found that a third-party beneficiary stepson of a
deceased employee was entitled to enforce a “for cause” employment contract, under which the
employer had the burden of proving cause for termination. In a bench trial, the court found that
just cause for termination existed where the employee had a negative attitude and poor morale
that affected the attitudes of other employees and the employee used more paid time off than he
was allowed pursuant to the employment agreement. In dicta, the court cast doubt on the validity
of damages for the value of plaintiff’s “sense of job security” and the additional work hours he
was forced to perform at his subsequent job. The court also found that the defendant employer’s
counterclaims for tortious interference and breach of fiduciary duty were waived when not
included in a pre-trial order, and they would have failed on the merits. Any loss of business
stemming from the fact that customers felt loyal to the terminated employee was not tantamount
to tortious interference and no breach of fiduciary duty existed when only idle threats were made
that the plaintiff would take another employee with him upon termination.
Howard Univ. v. Lacy, 828 A.2d 733 (D.C. 2003).
The District of Columbia Court of Appeals held that the trial court erroneously invoked
offensive collateral estoppel in a case where an employee handbook for the defendant university
had been treated as an enforceable contract in prior cases involving other plaintiffs, because the
issue as to whether the handbook was, in fact, a contract was not contested or litigated in the
prior cases. Further, evidence of the subjective intent of parties is necessary to determine
whether a handbook is a contract where an ambiguity exists between the parties and such
evidence is not provided by prior cases involving other parties, especially when the cases are
“quite distinguishable.” In dicta, the court stated that front and back pay damages awarded by
the jury were not excessive, but it did set aside a tuition remission award as speculative, because
it supposed that the plaintiff’s daughter would inevitably choose to attend defendant university
eleven years after the termination and that the plaintiff would have remained with the university
for that time but for the termination.
Silvestri v. Optus Software, Inc., 814 A.2d 602 (N.J. 2003).
The Supreme Court of New Jersey overturned the appellate court’s reversal of the trial
court’s decision to grant summary judgment in a breach of employment contract action where the
defendant employer terminated the employee for poor performance pursuant to a contract
provision that provided for termination when the employee exhibited poor performance. The
court held that without contractual language that explicitly warrants a contrary view, a subjective
standard is to be applied in employment contracts to satisfaction clauses, although such clauses
are subject to the provision that the employer act in accordance with good faith and fair dealing.
Further, applying the subjective test, the court found that the plaintiff did not make a prima facie
case with respect to whether dissatisfaction of the defendant was genuine, nor did he even assert
such a claim, arguing only that under an objective standard, such dissatisfaction was not genuine.
Justice Zazzali dissented, stating that the contract contained provisions which could be construed
as creating objective standards, by which the employer was making its decision and, that even if
a subjective standard were applied, there may have been facts that existed which would have led
a reasonable finder of fact to find that the defendant’s dissatisfaction with the plaintiff’s
performance was not genuine.
Brown v. Cushman & Wakefield, Inc., 235 F. Supp. 2d 291 (S.D.N.Y. 2002).
The district court enforced a contract provision that waived the right to a trial by jury in
“any matters whatsoever arising out of” the employment agreement against all claims brought by
the plaintiff employee, including those that applied to alleged discrimination by the employer.
The court also granted summary judgment to defendant on its counterclaim, holding that the
plaintiff was required to return to defendant payments that were erroneously made to her during
her maternity leave when there existed an agreement that her maternity leave was to be unpaid.
Layton v. MMM Design Group, 32 Fed. Appx. 677 (4th Cir. 2002).
After a letter exchange, Layton was hired by MMM Design for an indefinite period of
time. Layton, in his complaint, argues that he was to be employed until his work became
unsatisfactory, but without a termination clause, the court found that it was a simple at-will
contract between the parties. Indeed, “at-will” is conspicuous on the form where Mr. Layton
signed, indicating that he was on notice of the stipulation. Mr. Layton’s implied contract claim
fails due to the existence of a written contract, and his express contract claim for early
termination fails because the contract was at-will.
Michael v. Sentara Health Sys., 939 F. Supp. 1220 (E.D. Va. 1996).
Employee handbooks may confer certain contractual rights in specific circumstances.

However, as in the present case, when an employer inserts express disclaimers in the handbook
denying any clause in the handbook the ability to change the presumption of employment from
at-will to for-cause, the intent to maintain an at-will employment relationship cannot be more
clearly expressed.
ePlus Inc. v. Chan, 2003 Va. Cir. LEXIS 100 (Va. Fairfax Cir. Ct. 2003).
The court ruled that an employee hired with the promise of increased commissions and
pay if promoted is not entitled to the promised pay if plaintiff did not earn the promotion or was
terminated prior to earning the promotion. Since the increased pay is contingent upon the
employee’s promotion, the promotion must first be earned before the employee may have a
viable claim against her employer
Bonuses
Vizi v. Dulles Orthopedic Group, PC, 2003 Va. Cir. LEXIS 33163 (Va. Loudon Cir. Ct. 2003).
The court held that, unless otherwise stated, employment contracts are presumed to be at-
will, and for a breach of contract claim regarding termination to survive a demurrer, it “must at
least present some factual allegation (as opposed to a legal conclusion) that the contract is one
for a definite term.” Accordingly, as the plaintiff failed to meet this burden, the court entered an
order sustaining a demurrer.
Windesheim v. Verizon Network Integration Corp., 212 F. Supp. 2d 456 (D. Md. 2002).
The court, in a highly fact-specific dispute, found corporation’s bonus incentive plan did
not create enforceable contract under Maryland law due to lack of consideration. The employer
could modify the incentive payments in response to changing business conditions, employee
performance or their sole discretion. See also Johnson v. Schenley Distillers Corp., 28 A.2d 606
(Md. 1942) (Maryland recognizes no enforceable contractual obligation when employer offers
employees a bonus for doing that which an employee is already required to do pursuant to the
terms of the engagement of employment).
Implied Contract
Mid-Atlantic Equip. Corp. v. Cape Country Club, 1997 U.S. Dist. LEXIS 12312 (E.D. Pa. 1997),
aff’d without opinion, 172 F.3d 860 (3rd Cir. 1998).
The court ruled that a manifestation of mutual assent, verbal, written, or through the actions of the
parties, was required before an implied contract could be found. The court found that plaintiff seller’s
actions were not consistent with a finding that an implied contract existed because plaintiff did not make
any effort towards performance of the contract.
New Econ. Capital, LLC v. New Mkts. Capital Group, 881 A.2d 1087 (D.C. 2005).
Judge Reid delivered the opinion of the court. Plaintiff consultant appealed the trial
court’s grant of summary judgment to defendant equity fund firm on plaintiff’s breach of
contract and quantum meruit claims. Plaintiff said that she provided consulting services to
defendant and sued for $241,000 although no written or oral agreement was reached regarding
plaintiff’s fee.
The D.C. Court of Appeals upheld the trial court’s ruling on the breach of contract claim
but reversed and remanded the quantum meruit claim. No contract existed between the parties;
plaintiff never showed that a consensus was reached on the final terms of the contract. Indeed,
for an enforceable contract to exist there must be 1) agreement as to all material terms; and 2)
intent to be bound by those terms. Quantum meruit claims may be both quasi-contractual, what
is not a contract at all, or implied-in-fact contracts, what are true contracts; quantum meruit
requires four showings: 1) valuable services rendered; 2) for the person sought to be charged; 3)
which services were accepted and enjoyed by the person sought to be charged; and 4) under such
circumstances as reasonably notified the person sought to be charged expected to be paid.
Austin v. Howard Univ., 267 F. Supp. 2d 22 (D.D.C. 2003).
An employee who was fired for engaging in a heated argument with a co-worker brought
suit for breach of contract. He alleged that the employee handbook constituted an employment
contract and that his termination did not follow the terms set forth in the handbook. The
handbook states that it is not to be construed as a contract, but includes provisions which
“establish preconditions to termination of a regular employee.” This, according to the court,
suggests that it is a contract, and at the least, it is an issue for the jury to decide. Therefore,
summary judgment was denied and the jury could determine whether or not the handbook was an
employment contract.
Horn v. New York Times, 790 N.E.2d 753 (N.Y. 2003).
The Court of Appeals of New York reversed the lower appellate court findings, declining
to expand the Wieder “pursuit of common business” exception to this case. Here, a doctor
employed as an at-will employer, whose job it was to advise her employer, the New York Times,
whether or not employees’ injuries were eligible for Worker’s Compensation relief. The doctor
alleged that she was fired for refusing to disclose patient information without the consent of the
patient.
The Court of Appeals ruled that this termination was not an exception to the
employment-at-will rule and that the firing was not a public policy tort. The majority held that
the plaintiff’s refusal to disclose patient records without the patient’s consent was not central to
the job duties the employer required her to perform. Additionally, the employer and the
employee doctor did not have an implied contract to adhere to the principle of physician-patient
confidentiality as the court held that this standard of conduct is “not a self-policing rule critical to
professional self-regulation” and the employer and the employee doctor were not engaged in the
pursuit of the same “common business.”
Garcia v. Lucent Techs., 51 Fed. Appx. 703 (9th Cir. 2002).
The Ninth Circuit Court of Appeals ruled that plaintiff failed to overcome the
presumption of at-will employment because he offered no evidence of an implied contract
prohibiting termination except for cause. The court found plaintiff’s case particularly weak
because defendant employer offered two documents expressly stating that there was no implied
contract prohibiting defendant from terminating plaintiff at any time.
Dunaway v. Int'l Bhd. of Teamsters, 310 F.3d 758 (D.C. Cir. 2002).
The court held that plaintiff former employee failed to show evidence that an implied
contract existed between herself and defendant former employer. The plaintiff relied on oral
conversations and the employee manuals to show an implied contract. The court found that there
was no language in any manual offered by the plaintiff to show that an implied contract existed,
but there was language stating the opposite.
Dantley v. Howard Univ., 801 A.2d 962 (D.C. 2002).
In a line of cases following Sisco v. GSA Nat’l Capital Fed. Credit Union, 689 A.2d 53
(D.C. 1997), and U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d 731 (D.C. Cir. 1998), the
court held that summary judgment was inappropriate on an implied contract claim based on an
employee handbook that disclaimed contractual intent because it did not contain an express
reservation of the employer’s right to terminate employees at will. See also Strass v. Kaiser
Found. Health Plan of Mid-Atlantic, 744 A.2d 1000 (D.C. 2000).
Braithwaite v. Accupac, Inc., 2002 U.S. Dist. LEXIS 25044 (E. D. Pa. 2002), aff’d without
opinion, 90 Fed. Appx. 434 (3rd Cir. 2004).
The court held that a conversation between former-employee and an executive employee
of defendant employer regarding business plans extending beyond plaintiff’s employment
contract was not sufficient evidence to show that an implied contract for plaintiff’s continued
employment existed.
Trabing v. Kinko's, Inc., 57 P.3d 1248 (Wyo. 2002).
The Wyoming Supreme Court ruled that an employee handbook did not create an implied
in fact employment contract between defendant employer and plaintiff former employee because
it explicitly stated that it did not create a contract and that the employer reserved the right to alter
the provisions of the handbook at any time. Further, the employee signed an agreement on her
first day of work which stipulated that the employer could change regulations at will and
terminate the employee at any time without cause.
Fitch v. Cont'l Cas. Co., 2002 U.S. Dist. LEXIS 24269 (N.D. Ill. 2002).
The court found that an ethics code distributed by defendant employer may have created
an implied contract under Illinois Law because it “made a statement a reasonable person would
have believed to be an offer,” was “disseminated in a way that the employee would reasonably
believe it to be an offer” and “the employee accepted the offer.”
Inscho v. Exide Corp., 33 P.3d 249 (Kan. Ct. App. 2001).
While recognizing that the existence of an implied contract is generally a jury question,
the Kansas Court of Appeals held that a jury determination is not always required. The court in
holding that the plaintiff’s unilateral expectation of continued employment did not create a fact
dispute, stated:
The defining facts in this case were Inscho’s uncontroverted and admitted conduct
of grabbing her opponent’s hair and pulling her forward which constitutes
participation in a fight. These actions violated Exide’s written code of conduct
and the trial court correctly determined that just cause supported the termination
of Inscho’s employment. The trial court did not err in granting summary
judgment to Exide.
10
The court also stated that Stover v. Superior Indus. Int’l, Inc., 29 P.3d 967 (Kan. Ct. App.
2000), suggests that in all cases where there is an allegation of an implied contract, a jury must
decide the issue and Stover also suggests that the issues of “sufficient evidence” makes it a jury
question.
Hoff v. City of Casper-Natrona County Health Dept., 33 P.3d 99 (Wyo. 2001).
The Wyoming Supreme Court held that the employer had made clear and unambiguous
its intention not to be contractually bound by its personnel rules and regulations by stating in a
separately acknowledged disclaimer that they were not a contract. The court distinguished
Bouwens v. Centrilift, 974 P.2d 941 (Wyo. 1999), and Sanchez v. Life Care Ctrs., 855 P.2d 1256
(Wyo. 1993), of an implied contract, a jury must decide the issue and Stover also suggests that
the issues.
Wade v. Kessler Inst., 798 A.2d 1251 (N.J. 2002).
Previously, the New Jersey Supreme Court had recognized an employer’s obligation to
discharge its responsibilities under an employment manual, an implied contract, in good faith,
that is, a Woolley contract containing an implied covenant of good faith and fair dealing like any
other employment agreement. Noye v. Hoffmann – La Roche Inc., 570 A.2d 12 (N.J. Super.
1990), cert. denied, 584 A.2d 218 (1990). Also, the court had explained that a party’s
performance under a contract may breach the implied covenant even though the performance
does not violate a pertinent express term. Wilson v. Amerada Hess Corp., 773 A.2d 1121 (N.J.
2001). The Wade court attempted to apply those principles in a jury instruction setting.
Roberson v. Wal-Mart Stores, Inc., 44 P.3d 164 (Ariz. Ct. App. 2002).
County of Giles v. Wines, 546 S.E.2d 721 (Va. 2001).
The Supreme Court of Virginia held that personnel policy, stating that employee “may”
be discharged for misconduct or other just cause, was insufficient to rebut the strong
presumption in favor of finding an at-will relationship. The word “may” does not indicate that
the employee “shall only” be discharged for misconduct or other just cause. Three justices
dissented, stating that “[t]he majority has imposed this new ‘rule’, which eviscerates the historic
role of the jury in employment termination cases….”
Cotran v. Rollins Hudig Hall Int’l, Inc., 948 P.2d 412 (Cal. 1998).
The California Supreme Court held that when an employee, who was hired under an
implied contract not to be terminated except for “good cause,” is discharged for misconduct, the
jury’s role is not to determine whether the misconduct occurred, but rather whether the employer
had reasonable grounds for believing that the misconduct occurred and otherwise acted fairly. In
11
doing so, the court rejected the Toussaint rule where a Michigan court held that the jury’s role is
to review de novo the alleged misconduct. Toussaint v. Blue Cross, 292 N.W.2d 880 (Mich.
1980). In Cotran, the court stated that “the role of the jury is to assess, through the lens of an
objective standard, the reasonableness of [the employer’s decision that just cause to terminate
exists] under the circumstances known to the employer at the time it was made …”
Murphy v. Haws & Burke, 344 A.2d 543 (Pa. Super. Ct. 1975).
Petitioners were employees terminated from respondent law firm. They sued in equity to
recover both files and lost profits. They lost both claims, and in regard to the latter, the lower
court found that they were nothing more than employees at the time their services were rendered.
Undaunted, they sued again, this time on a quantum meruit claim. The court, stated that the
individual plaintiffs were precluded from asserting the claim. Before ruling against the
petitioners, the Pennsylvania Superior Court framed the issue as follows: “The actual issue
presented, then, is whether a party who has received and accepted salary with no agreement,
express or implied, for payment of bonuses may sue for additional compensation under a theory
of quantum meruit.
Po River Water & Sewer Co. v. Indian Acres Club of Thornburg, Inc., 495 S.E.2d 478 (Va.
1998).
Indian Acres Club is an 802-acre private recreational campground in Virginia. The

owners association owns and operates the common area facilities on the site. The Club did not
pay for utilities but found that it was provided with water and sewer service, service provided by
petitioner utility. Po sent the Club a bill that went unpaid. When Po threatened to cut water to
the site, the Club filed for an injunction and argued that no contract existed between the parties
as to the provision of services. Po cross-filed and demanded relief under quantum meruit. The
Virginia Supreme Court held that a promise to pay was implicit in the Club’s receipt of utility
service: “To avoid unjust enrichment, equity will affect a ‘contract implied in law,’ requiring one
who accepts and receives the services of another to make reasonable compensation for those
services.”
Oaks v. 3M Co., 2006 U.S. App. Lexis 16170, (6th Cir. 2006).
In Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354 (Ky. 2005), the Kentucky Supreme
Court held that the trial courts have original jurisdiction over wage and hour disputes under the
Kentucky state statute, and the court held that an employment policy may grant contractual rights
to employees. Relying upon Parts Depot, the Sixth Circuit found that the district court erred in
granting summary judgment on the issue of whether the employee manual constituted a contract,
finding that 3M’s employee manual contained sufficiently specific language to constitute a valid
unilateral implied contract.
12
Promissory Estoppel
Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101 (D.D.C. 2002).
Plaintiff alleged that, in reliance on defendant’s promise to train her sufficiently in

transactional business if she were to accept its job offer, she left a secure job in Baltimore; that
defendant failed to train her, leading to her dismissal; and that her career path and employment
record were permanently damaged and she suffered financial hardship. The court, did not grant
summary judgment to the defendants on plaintiff’s claim of promissory estoppel, stating that an
injured promisee that reasonably relied on a promise made and the enforcement of the promise
would be in the public interest and prevent injustice is sufficient to defeat that motion.
Gunthorpe v. DaimlerChrysler Corp., 205 F. Supp. 2d 820 (N.D. Ohio 2002), rev’d on other
grounds, 90 Fed. Appx. 877 (6th Cir. 2004).
The court granted summary judgment on a promissory estoppel claim as plaintiff failed to
establish that defendant had promised he would be employed for at least 12-15 more years, i.e.,
until retirement, at a particular plant. Failing to establish a genuine factual dispute regarding the
making of such a promise, defendant was granted summary judgment as plaintiff failed to
establish the first element of promissory estoppel, that is, a promise.
Helmer v. Bingham Toyota Isuzu, 2005 Cal. App. LEXIS 869 (Cal. Ct. App. 2005).
The California Court of Appeals held that due to promises made when plaintiff, a former
at-will employee interviewed for a job the defendant was prevented by promissory estoppel from
terminating him. The court found that the discrepancy between what the employee was
promised at his interview and what he actually received amounted to promissory fraud and
therefore the plaintiff was entitled to damages for future lost profits.
Prentice v. UDC Advisory Servs., 648 N.E.2d 146 (Ill. App. Ct. 1995).
The Appellate Court of Illinois, in explaining that while pleading promissory estoppel
and breach of contract, in the alternative, is generally permissible, stated:
[P]romissory estoppel is a method to enforce promises that do not meet the

requirements of consideration. It is not intended to give a party to a negotiated
commercial bargain a second bite at the apple in the event it fails to prove breach
of contract.
13
Skywalker Commc’ns of Ind., Inc. v. Skywalker Commc’ns, Inc., 333 F.3d 829 (7th Cir. 2003).
The court of appeals affirmed the district court judgment, holding that while written
documents related to the same transaction and signed by the party to be charged can be taken in
aggregate to show that an amended oral contract exists even if there is no particular written
document memorializing that contract, the statute of frauds bars a finding that exists where the
documents in question could as easily evince that the prior written contract still controlled.
Further, while promissory estoppel can generally be invoked to circumvent the statute of frauds,
the court held that there is no valid claim for promissory estoppel when the purported reliance
did not give “compelling evidence of the existence or terms of a later oral agreement.”
APJ Assocs., Inc. v. N. Am. Philips Corp., 317 F.3d 610 (6th Cir. 2003).
The court of appeals held, among other things, that the Michigan Sales Representative
Act did not supersede the agreements between a manufacturer and its representative firm and that
the agent is not a procuring cause of the transaction where “the agent does not participate in the
negotiation of a given contract of sale.” The court further held that promissory estoppel and
unjust enrichment could not be claimed where an express contract between the parties that was
contained in a written agreement.
Tiernan v. Charleston Area Med. Ctr., 575 S.E.2d 618 (W. Va. 2002).
The plaintiff, a nurse, was fired by the hospital, allegedly in violation of a verbal promise
that nurses had the right to speak with the press, and that they would not be fired for doing so.
The Supreme Court of West Virginia held that summary judgment should not have been granted
on plaintiff’s promissory estoppel claim based on the hospital’s assurances that it would not
violate the agreement with her.
Contract Interpretation
Reid v. Boyle, 527 S.E.2d 137 (Va. 2000).
Messrs. Reid and Boyle were business partners working on the college music scene. Mr.
Reid was orally promised a 50% share in profits stemming from an amphitheater if Mr. Reid
could convince the City of Virginia Beach to build it. Mr. Boyle put up several million dollars in
capital to help build the amphitheater. However, the costs were higher than initially planned.
Mr. Boyle sunk more money into the project and subsequently advised Mr. Reid that his share
would be cut to 33% of the profits. Later, Mr. Boyle transmitted a letter to Mr. Reid that
promised him 10% of the profits. When Mr. Reid sued Mr. Boyle, Mr. Boyle tried to state that
14
Mr. Reid could not prove any ownership interest in the amphitheater. The Supreme Court of
Virginia applied the following contract principles to the case:
The law does not favor declaring contracts void for indefiniteness and uncertainty,
and leans against a construction which has that tendency...[Courts will not] permit
parties to be released from the obligations which they have assumed if this can be
ascertained with reasonable certainty from the language used, in light of all the
surrounding circumstances. This is especially true where there has been partial
performance.
The court continued to state that the intention of the parties in forming the contract
should be considered. To determine this intention, the court looks at the relative situations of the
parties, their goals, and how the agreement between the two would further their interests. The
most just construction is presumed to be in accordance with the parties’ intentions.
Unjust Enrichment
News World Commc’ns, Inc. v. Thompsen, 878 A.2d 1218 (D.C. 2005).
Judge Schwelb delivered the opinion of the court. Defendant employer appealed from
the trial court’s awarding to plaintiff employee of damages for unjust enrichment and the denial
of a post-trial motion for judgment as a matter of law.
Thompsen approached NWC with an idea for developing a family magazine to be
inserted with defendant’s newspaper. NWC was initially excited by the idea, but later informed
Thompsen that her idea would not be used and she would not continue working with NWC.
Three years after her dismissal NWC ran a magazine Thompsen claims is similar to and based
upon her work.
A claim for unjust enrichment must show that the defendant was unjustly enriched at the
plaintiff’s expense and the circumstances suggest that the defendant, in good conscience, should
make restitution. The application of the statute of limitations to a claim of unjust enrichment
was an issue of first impression for this court. The court rejected the “discovery rule” and held
that the statute of limitations for an unjust enrichment claim begins to run when the “plaintiff’s
last service had been rendered and compensation had been wrongfully withheld.” The court
relied on Baer v. Chase, 392 F.3d 609 (3d Cir. 2004). Applying this to the instant case, the court
reversed.
Keywell & Rosenfeld v. Bithell, 657 N.W.2d 759 (Mich .Ct. App. 2002).
The court held that the lower court erred in granting summary judgment to plaintiff’s law
firm’s unjust enrichment claim against defendants, former clients, for refusing to pay legal bills.
The court found that a jury could have found that there was no contract, and that the legal
15
services provided to the defendant were of value and therefore defendant would be unjustly
enriched if not forced to pay plaintiff for legal work already performed. The court noted that
defendant had paid plaintiff regularly before ceasing payment and claiming that the plaintiff had
agreed to take defendant’s case on contingency.
Ingram v. Rencor Controls, Inc., 217 F. Supp. 2d 141 (D. Me. 2002).
An unjust enrichment claim lies where (1) the defendant was enriched, (2) at the
plaintiff’s expense, and (3) it is against equity and good conscience to permit the defendant to
retain what is sought to be recovered. Such a claim is allowed only when the benefit allegedly
confined is not the subject of an existing contract.
Plaintiff was a salesman for the defendant. The defendant verbally promised to provide
plaintiff with 10% of defendant’s stock and bonus compensation if plaintiff was able to maintain
past sales revenue with a reduced sales staff. All of these promises were made to induce the
plaintiff to not resign from defendant. Plaintiff achieved the sales revenue goal. Defendant did
not transfer the stock and did not pay the bonus. As the breach of contract claim was banned by
the statute of frauds, the court considered the unjust enrichment claim. The court denied a
motion to dismiss the claim as plaintiff alleged he conferred a benefit on defendant by his work
as an employee that increased defendant’s revenues and by his agreement to continue working
for the defendant after he had announced he was going to resign.
Kwang Dong Pharm. Co. v. Han, 205 F. Supp. 2d 489 (D. Md. 2002).
Maryland recognizes an unjust enrichment claim where there is a contract if there is

evidence of fraud or bad faith. See County Comm’rs of Caroline Co. v. J. Roland Dashiell &
Sons, Inc., 747 A.2d 600 (Md. 2000). As the plaintiff in Kwang Dong did not plead fraud, the
claim did not lie. Typically, an unjust enrichment claim is barred where an express contract
exists. See, e.g., United States v. EER Systems Corp., 950 F. Supp. 130, 133 (D. Md. 1996);
Schiff v. AARP, 697 A.2d 1193 (D.C. 1997).
Linkco, Inc. v. Fujitsu Ltd., 232 F. Supp. 2d 182 (S.D.N.Y. 2002).

The court held that one way to calculate plaintiff’s damages in a misappropriation of
trade secrets case is to look at the defendant’s unjust enrichment as a result of the unjust
enrichment. i.e., the profits the defendant obtained from using the trade secrets.
Hysitron, Inc. v. Frederickson, 2002 Minn. App. LEXIS 1327 (Minn. Ct. App. 2002).
The court held that plaintiff former employer was not entitled to recover the money it
paid towards defendant former employee’s student loans because there was no express language
which designated the payment as a condition precedent. The court found that the payment was a
signing bonus and therefore the defendant was not unjustly enriched.
16
Gallip v. City of Rutland, 882 A.2d 1177 (Vt. 2005).
The Vermont Supreme Court held that an employer did not have the right to
reimbursement of a worker’s compensation benefits and a supplemental salary paid to the
employee during an evaluation process used to determine the true extent of the employee’s
injuries. The court held that this was not unjust enrichment because the employer could have
sped up the evaluation process and determined the employee’s true status earlier if they had so
desired.
Public Policy Tort
Rothrock v. Rothrock Motor Sales, Inc., 883 A.2d 511 (Pa. 2005).
The Pennsylvania Supreme Court held that the public policy exception to the at-will
employment doctrine includes prohibiting an employer from firing a supervisory employee for
failure to dissuade a subordinate employee from seeking worker’s compensation benefits. In the
dicta, the court reasoned that the court must be careful not to “erode an employer’s inherent right
to operate the business as it chooses” and refuses to establish a specific set of factors to
determine when and if the public policy exception to terminating at-will employees should apply.
LoPresti v. Rutland Reg’l Health Servs., Inc., 865 A.2d 1102 (Vt. 2004).
The Supreme Court of Vermont discarded, as an initial matter, the trial court’s
determination that a “with or without cause” termination clause shields the employer from an
employee’s claim that he or she was fired in violation of public policy. See also Rocky Mtn.
Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 525 (Colo. 1996) (“Public policy must concern
behavior that truly impacts the public in order to justify interference into an employer’s business
decisions.”). The court also held that professional ethics codes – in this case, the American
Medical Association’s Principles of Medical Ethics – may be used to show violations of public
policy; when remanded, the plaintiff had the burden of persuading the trial court that that
nettlesome action is prohibited by the AMA Principles, not the plaintiff’s personal or moral
beliefs. Also, in order to satisfy the public policy exception, the ethics codes must have “clear
and compelling” mandates and the provision of the code relied upon must be for the benefit of
the public, not the profession. Finally, the court reaffirmed its earlier holding that no public
policy proscribes an employer’s termination of a health care employee due to a disagreement or
differences of reasonable professional judgment.
17
Reust v. Alaska Petroleum Contrs., Inc., 127 P.3d 808 (Alaska 2005).
The Alaskan Supreme Court found that the defendant employer had wrongfully
discharged plaintiff employee for his involvement as a witness in a case against the defendant
prior to his employment with defendant. The court also found that in Alaska it is tortuous
conduct to retaliate against someone for testifying in a legal proceeding.
Rocky Mtn. Hosp. & Med. Serv. v. Mariani, 916 P.2d 519 (Colo. 1996).
An employee’s wrongful discharge claim based on public policy lifted from professional
codes of ethics must prove four elements for a prima facie case:
1) The employer instructed the employee to perform an illegal or unethical

act as part of the employee’s duties;
2) The action would violate a statute or unambiguous public policy;
3) The employee was terminated as a result of failing to comply with the
employer’s demands; and
4) The employer knew or should have known that the employee refused to
comply due to concerns about the legality or ethicality of the action.
Glasscock v. Alliant Foodservice, Inc., 232 F.Supp. 2d 1148 (D. Or. 2001).
In this case, a company fired a driver shortly after the driver, complained of unsafe driver
practices, a violation of the Oregon Safe Employment Act. The court held that termination for
this reason is not allowable if “the plaintiff can establish that he suffered discrimination at his
employment because he made a complaint ‘related to’ safe and healthful working conditions.”
Or. Rev. Stat. § 654.062 (5)(a).
Pecenka v. Fareway Stores, Inc., 672 N.W.2d 800 (Iowa 2003).
The court affirmed summary judgment for the employer on plaintiff’s sex discrimination
claim under state law wherein plaintiff argued that the employer’s grooming policy of allowing
earrings for women but not men was discriminatory. The plaintiff-employee was terminated after
he refused to remove an ear stud during work hours. The court observed that
[T]he sex discrimination provisions of Title VII and the [Iowa Civil Rights Act]
were enacted to stop the perpetuation of sexist or chauvinistic attitudes in
employment which significantly affect employment opportunities...[They] were
not meant to prohibit employers from instituting personal grooming codes which
have a de minimus affect [sic] on employment.
18
Imes v. City of Asheville, 594 S.E.2d 397 (N.C. Ct. App. 2004); aff’d without opinion, Imes v.
City of Asheville, 606 S.E.2d 117 (N.C. 2004).
The North Carolina Court of Appeals held that an employee allegedly terminated because
he was a victim of domestic violence could not sue for wrongful discharge in violation of public
policy. The court stated: “the complaint filed in the instant case does not allege that [the
employer’s] conduct violated any explicit statutory or constitutional provision, nor does it allege
[that the employer] encouraged plaintiff to violate any law that might result in potential harm to
the public.”
Jackson v. Morris Commc’n Corp., 657 N.W.2d 634 (Neb. 2003).
The Nebraska Supreme Court recognized that an at-will employee allegedly terminated
for filing a workers’ compensation claim could sue for retaliatory discharge.
Pietruszynski v. McClier Corp., 788 N.E.2d 82 (Ill. App. Ct. 2003).
The Illinois Appellate Court held that an at-will employee allegedly terminated for
testifying on behalf of a co-worker at a workers’ compensation hearing could sue for wrongful
discharge.
Himmel v.Ford Motor Co., 342 F.3d 593 (6th Cir. 2003).
The court reversed summary judgment for the employer, holding that under the law of
Ohio an employee who alleged that he was terminated for complaining about federal labor law
violations could sue for wrongful discharge even though the plaintiff-employee participated in
the wrongful conduct.
Maw v. Advanced Clinical Commc’ns, Inc., 846 A.2d 604 (N.J. 2004), reversing, 820 A.2d 105
(N.J. Super. Ct. App. Div. 2003).
The New Jersey Supreme Court held that plaintiff did not have a valid claim against her
former employer under the Conscientious Employee Protection Act for terminating her for not
executing an employment contract with a non-compete clause. The court found that the
employer’s insistence on executing the non-compete clause did not violate a “clear mandate of
public policy” and therefore was not within the statutory purview of CEPA.
19
Kittle v. Cynocom Corp., 232 F. Supp. 2d 867 (S.D. Ohio 2002).
The court recognized a public policy tort claim based upon the Ohio anti-discrimination
statute where the employer employed less than the requisite number of employees for coverage
under the state statute.
Christensen v. Grant County Hosp. Dist. No. 1, 60 P.3d 99 (Wash. Ct. App. 2002).
The court held that plaintiff ambulance driver was not estopped from bringing a claim of
wrongful termination in violation of public policy even though he had already unsuccessfully
pursued the claim in administrative proceedings. The court held that public policy tort violations
are separate and distinct claims from any other claim and therefore they are not barred by judicial
estoppel.
Pytlinkski v. Brocar Prod., Inc., 760 N.E.2d 395 (Ohio 2002).
The Ohio Supreme Court reversed a lower court decision that had granted a motion to
dismiss, because the statute of limitations had run. The lower court had held that the plaintiff
failed to bring a wrongful discharge suit within 180 days, which the Ohio Whistleblower Act
required, but the Ohio Supreme Court articulated a common-law claim for wrongful discharge in
violation of public policy, the statute of limitations for which was four years under Ohio
common law. Two justices concurred and one justice dissented, arguing that the 180-day limit
should have been applied, though the concurring justices believed that Ohio common law
compelled them to apply the four-year rule because of stare decisis principles only.
Szaller v. Am. Nat’l Red Cross, 293 F.3d 148 (4th Cir. 2002).
The court declined to expand public policy to include an employee internal

complaint/report to Red Cross’ hot line alleging blood handling and staff training deficiencies.
Plaintiff argued that a clear mandate of public policy could be discerned in federal regulations
and a consent decree between the FDA and the Red Cross. The court rejected plaintiff’s
argument, stating Maryland courts “have given no indication that federal regulations or consent
decrees constitute Maryland public policy”, “perhaps the regulations and consent decree…
would constitute clear mandates of federal policy”, “federal policy is enforced by the means
Congress specifies, not through state-law wrongful discharge actions.” The court went on to
hold in dicta that the Maryland courts recognize such a claim “in only two limited circumstances:
where an employee has been discharged for refusing to violate the law, or where an employee
has been fired for exercising a specific legal right or duty.” See also Milton v. IIT Research
Inst., 138 F.3d 519 (4th Cir. 1998).
20
Phillips v. St. Mary Reg’l Med. Ctr., 2002 Cal. App. LEXIS 1600 (Cal. Ct. App. 2002).
Plaintiff sued a non-profit religious corporation, alleging that it retaliated against him for
filing a complaint for race and sex discrimination with the California FEPC and the EEOC.
Plaintiff’s wrongful discharge claim relied on three public policies: the California anti-
discrimination statute, the California constitution, and Title VII. At the time of the alleged
retaliation, the California statute exempted religious entities. Thus, the court found no public
policy in the state statute. But, the court went on to find a public policy in the state constitution’s
prohibition against race and sex discrimination and in Title VII. The court concluded that,
although the public policies under the state anti-discrimination law and Title VII are in direct
conflict in regards to the scope of the religious entity exception, the plaintiff may rely on Title
VII as a source of public policy for his state common law cause of action for wrongful
termination.
Klontz v. City of London, 2002 Ohio App. LEXIS 1555, 18 I.E.R. Cas. (BNA) 819 (Ohio Ct.
App. 2002).
The court declined to recognize a wrongful discharge claim where the plaintiff alleged he
was discharged for refusing to sign off on a project that would violate unspecified provisions of
Ohio’s Basic Building Code or the National Electric Code. By failing to specify a provision, the
plaintiff had failed to state a clear mandate of public policy. Ohio does recognize that public
policy can be discerned from federal as well as state statutes. Kulch v. Structural Fibers, Inc.,
677 N.E.2d 308 (Ohio 1997).
Hubbard v. Spokane County, 50 P.3d 602 (Wash. 2002) (en banc).
The Washington Supreme Court found a clear mandate of public policy in the zoning
code which prohibits issuance of a permit to build a new hotel at the airport as well as the airport
master plan. The dissent claimed that plaintiff had failed to specify any provision of the code
that would have been violated. The majority argued that the dissent required plaintiff to prove
that the code would have been violated. Following decisions from Oklahoma and California, the
majority concluded that enforcement of the zoning code to ensure uniform planning and the
general safety and welfare of the county creates a valid public policy.
Bammert v. Don’s Super-Valu, Inc., 646 N.W.2d 365 (Wis. 2002).
Plaintiff’s husband was a police officer. Her husband participated in the arrest of her
boss’s wife for drunk driving. Shortly thereafter, plaintiff was fired, allegedly in retaliation for
her husband’s participation in the arrest of her boss’s wife. Plaintiff sued for wrongful
discharge. The majority refused to extend the public policy tort claim to a firing in retaliation for
the actions of her non-employee spouse. The Wisconsin Supreme Court declined to extend the
doctrine to terminations in retaliation for conduct outside the employment relationship or to
21
terminations in retaliation for the conduct of someone other than the terminated employee.
Three justices dissented.
Riggs v. Home Builders Inst., 203 F. Supp. 2d 1 (D.D.C. 2002).
Judge Hogan delivered the opinion of the court. Unless there is a clear showing of
evidence, the wrongful discharge of an employer in violation of public policy is a question of
fact and often difficult to pass summary judgment on. Additionally, an at-will employee can
claim a tortious interference with a contract as a claim for improper termination as an at-will
employee does not operate under an established employment contract.
Jenkins v. Parkview Counseling Ctr., 2001 Ohio App. LEXIS 133, 17 I.E.R. Cas. (BNA) 484
(Ohio Ct. App. 2001).
The Ohio Court of Appeals held that a cause of action for wrongful termination exists
when an employee is terminated for filing a lawsuit against his employer. See also Chapman v.
Adia Servs., Inc., 688 N.E.2d 604 (Ohio App. 1997), where the First District Court of Appeal of
Ohio held that consulting an attorney fit into the public-policy exception to the employment-at-
will doctrine. Thus, at-will employees fired for consulting attorneys may file claims against the
employer.
Warnek v. ABB Combustion Eng’g Services, Inc., 972 P.2d 453 (Wash. 1999).
The Washington Supreme Court held that there was no cause of action for wrongful
discharge for failure to rehire a former employee because the employee filed a worker’s
compensation grievance while previously employed.
Evans v. Toy’s R Us-Ohio, Inc., 32 F. Supp. 2d 974 (N.D. Ohio 1999).
The court recognized that Ohio did have a public policy exception to the employment-at-
will doctrine which allows plaintiffs to make claims arising out of wrongful discharges.
However, the court refused to extend the law to include a failure to promote as an actionable
tortious violation of public policy.
Brigham v. Dillon Cos., Inc., 935 P.2d 1054 (Kan. 1997).
The Supreme Court of Kansas held that there is a cause of action for retaliatory demotion
for claiming worker’s compensation rights because it is a violation of public policy.
22
Below v. Skarr, 569 N.W.2d 510 (Iowa 1997).
The Supreme Court of Iowa held that there is no cause of action for threatened
termination for an exercise of worker’s compensation rights, even though an actual discharge in
retaliation for exercising worker’s compensation rights would be actionable because it is a
violation of public policy.
White v. State, 929 P.2d 396 (Wash. 1997).
The court held that there is no cause of action for wrongful transfer in violation of public
policy.
Zimmerman v. Buchheit of Sparta, Inc., 645 N.E.2d 877 (Ill. 1994).
The Supreme Court of Illinois held that there was no cause of action for retaliatory
demotion for the assertion of worker’s compensation rights. The court found that an employee
must actually be terminated to state a claim for retaliatory discharge.
Fulford v. Burndy Corp., 623 F. Supp. 78 (D.N.H. 1985).
The United States District Court for the District of New Hampshire held that an employee
who was terminated as a result of filing a lawsuit against a supervisor could file a claim against
his employer. The court found that terminating an employee for exercising their right to have
recourse to the laws under the New Hampshire Constitution implicated a question of public
policy, and thus was actionable.
Nolting v. Nat’l Capital Group, Inc., 621 A.2d 1387 (D.C. 1993).
The court rejected a retaliatory discharge claim based on the public policy prohibiting a
discharge in retaliation for filing a workers’ compensation claim because an administrative
remedy, described by the court as “a specific and significant remedy”, was specifically provided
for in the Workers’ Compensation Act.
Washington v. Guest Servs., Inc., 718 A.2d 1071 (D.C. 1998).
In light of the court’s en banc decision in Carl v. Children’s Hospital, 702 A.2d 159 (D.C.
1999), expanding the public policy tort, which the court retroactively applied to the facts of this
case, the court recognized a retaliatory discharge claim where plaintiff was allegedly discharged
for attempting to persuade a fellow worker, and later her supervisor, not to violate District of
23
Columbia health and food regulations in the kitchen at a retirement home for the elderly by
spraying food with cleaning fluid.
Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873 (D.C. 1998).
The court held that wrongful discharge claim would lie if plaintiff had been discharged
by law firm for reporting alterations in “as-filed” documents. The court further held that there
was no public policy exception to at-will employment where an attorney reported wrongful
conduct to her superiors and the disciplinary rules governing attorneys did not mandate that a
subordinate attorney must report allegedly wrongful conduct to supervisory attorneys.
Liberatore v. Melville Corp., 168 F.3d 1326 (D.C. Cir. 1999).
Plaintiff repeatedly notified management of a drug store that drugs were being
improperly stored at temperatures that placed the public at risk of purchasing adulterated drugs in
violation of federal and District of Columbia statutes and regulations. Eventually, plaintiff
threatened to report the matter to the FDA, and allegedly was fired for threatening to do so. The
court found that plaintiff had stated a claim for wrongful discharge under the expansion of that
doctrine set forth in. The court rejected the defense argument that internal complaints of law
violations were not covered by the public policy exception.
Thibodeau v. Design Group One Architects, LLC, 802 A.2d 731 (Conn. 2002).
The Connecticut Supreme Court concluded that a wrongful discharge claim may not be
brought for pregnancy discrimination against an employer of fewer than three employees which
was not covered by the Connecticut anti-discrimination statute. The majority distinguished
decisions from Maryland, Ohio, Washington, and West Virginia on the ground that the statutory
schemes involved in those cases, while exempting certain small employers, also expressly
announce a broad public policy barring sex discrimination in employment by all employers. The
court went on to align itself with Oklahoma which has held that wrongful discharge is not
recognized because the employer is outside the statute’s purview. Brown v. Ford, 905 P.2d 223
(Okla. 1995).
Wholey v. Sears Roebuck, 803 A.2d 482 (Md. 2002).
The Maryland Court of Appeals recognized a public policy exception to at-will

employment where the employee reported suspected criminal activity to the appropriate law
enforcement or judicial official. The court emphasized that its decision was based on legislative
enactments and that it refused “to take the specific factual circumstances before us and induce
from it an all-encompassing exception…which declares that the act of investigating criminal
24
activity is a per se public benefit, the termination for which, is actionable in tort law.” The court
specifically stated that as the legislature has not created a general all-encompassing
“whistleblower protection” statute which would protect employees who investigate and
internally report suspected criminal activity, the court, in turn, declines to act in its stead. The
court also specifically approved of the Fourth Circuit’s reasoning in Adler v. Am. Standard
Corp., 830 F.2d 1303 (4th Cir. 1987), and Milton v. IIT Research Inst., 138 F.3d 519 (4th Cir.
1998).
Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852 (Tenn. 2002).
The Tennessee Supreme Court found that an in-house attorney discharged for reporting
the General Counsel’s unauthorized practice of law in compliance with a provision of the Code
of Professional Responsibility may bring a common law claim for retaliatory discharge, the Code
representing a clear and definitive statement of public policy. The state disciplinary rules
composed a permissive, not a mandatory, duty to report the General Counsel’s unauthorized
practice. The court held that a lawyer may ethically disclose the employer’s confidences or
secrets when the lawyer reasonably believes that such confrontation is necessary to establish a
claim against the employer. See also Rachel S. Arnow Richman, A Cause Worth Quitting for?
The Conflict Between Professional Ethics and Individual Rights in Discriminatory Treatment of
Corporate Counsel, 75 Ind. L.J. 963 (2000); H. Lowell Brown, The Dilemma of Corporate
Counsel Faced with Client Misconduct: Disclosure of Client Confidences or Constructive
Discharge, 44 Buffalo L. Rev. 777 (1996); Sara A. Corello, In-house Counsel’s Right to Sue for
Retaliatory Discharge, 92 Colum. L. Rev. 389 (1992); Cathyrn C. Dakin, Protecting Attorney’s
Against Wrongful Discharge: Extension of the Public Policy Exception, 44 Case W. Res. 1043
(1995); Michelle M. Gubola, In-house Attorneys’ Claims for Wrongful Discharge: General
Dynamics Corp. v.Superior Court, 876 P.2d 487 (Cal. 1994), 64 U.Cin.L.Rev. 227 (1995);
Nancy Kubasek, M. Neil Browne, Julie Harris, The Social Obligation of Corporate Counsel: A
Communitarian Justification for Allowing In-house Counsel to Sue for Retaliatory Discharge, 11
Geo. J. Legal Ethics 665 (1998); Nancy J. Moore, Conflicts of Interest for In-house Counsel:
Issues Emerging from the Expanding role of the Attorney-Employee, 39 S. Tex. L. Rev. 497
(1998); Michael P. Sheehan, Retaliatory Discharge of In-house Counsel: A Cause of Action –
Ethical Obligations v. Fiduciary Duties, 45 DePaul L. Rev. 859 (1996); Sally R. Weaver, The
Randolph W. Thrower Symposium: The Role of the General Counsel: Perspective: Ethical
Dilemmas of the Corporate Counsel: A Structural and Contextual Analysis, 46 Emory L.J. 1021
(1997).
Silo v. CHW Med. Found., 45 P.3d 1162 (Cal. 2002).
The Supreme Court of California held that no fundamental and substantial public policy
prohibits a religious employer from terminating an employee because of his/her objectionable
religious speech in the workplace. Here, a Catholic hospital instructed plaintiff that he should
not use the word “God…unless it’s off the clock.” Eventually, plaintiff was terminated for
preaching to fellow employees at work.
25
McGarrity v. Berlin Metals, Inc., 774 N.E.2d 71 (Ind. Ct. App. 2002).
The court of appeals held that an employee stated a wrongful discharge cause of action,
alleging he was fired for refusing to incur personal liability for felony fraud by filing a fraudulent
tax return and by intentionally preparing financial statements that understated the company’s
liabilities. At the start of the court’s opinion, the court stated:
With the sole exception of the war on terrorism, no issue dominates current
thought more than the corporate and accountancy ethical scandals which have
rocked our country. Insider trading, overstated corporate earnings, shredded
documents, and a host of related issues dominate the national news, business
journals, and law reviews. It is within this societal framework that the case now
before us for decision must be judged.
Vorpagel v. Maxell Corp. of Am., 775 N.E.2d 658 (Ill. App. Ct. 2002).
Employee was fired for reporting to the prosecutor incriminating statements made by a
supervisor about a sexual relationship with the supervisor’s minor daughter. The court held that
the importance of enforcing the state’s criminal laws apply with equal force whether or not the
alleged crime is connected with a plaintiff’s employment
Harvey v. Care Initiatives, Inc., 634 N.W.2d 681 (Iowa 2001).
The Supreme Court of Iowa held that no cause of action in tort for retaliatory termination
of employment exists for an independent contractor. This is the holding of most courts that have
addressed the issue. See Driveaway & Truckaway Serv., Inc. v. Aaron Driveaway & Truckaway
Co., 781 F. Supp. 548, 551-52 (N.D. Ill. 1991); Sistare-Meyer v. YMCA, 1997 Cal. App. LEXIS
790 (Cal. At. App. 1997); Ostrander v. Farm Bureau Mut. Ins. Co., 851 P.2d 946 (Idaho 1993);
New Horizons Elecs. Mktg., Inc. v. Clarion Corp., 561 N.E.2d 283 (Ill. App. Ct. 1990);
Wilmington v. Harvest Ins. Cos., 521 N.E.2d 953, 956 (Ind. Ct. App. 1988); MacDougall v.
Weichert, 677 A.2d 162, 166 (N.J. 1996); see also Birchem v. Knights of Columbus, 116 F.3d
310, 315 (8th Cir. 1997) (N.D. law); McNeill v. Sec. Benefit Life Ins. Co., 28 F.3d 891, 893 (8th
Cir. 1994) (Ark. Law); but see Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 12-14 (1st Cir.
1999) (statute sufficiently broad to include independent contractors); Marquis v. City of
Spokane, 922 P.2d 43 (Wash. 1996).
Watson v. Peoples Sec. Life Ins. Co., 588 A.2d 760 (Md. 1991).
The Maryland Court of Appeals held that a tort may lie when an employee is fired in
retaliation for bringing suit against a superior whose workplace sexual harassment culminates in
26
assault and battery. Such conduct contravenes not only Title VII, but also “the individual’s
interest in preserving bodily integrity and personality” and “the state’s interest in preventing
breaches of the peace.”
Insignia Residential Corp v. Ashton, 755 A.2d 1080 (Md. 2000).
The Maryland Court of Appeals recognized that a wrongful discharge claim may lie
where an employee is fired because she resists quid pro quo sexual advances that amount to an
invitation to engage in prostitution.
Lewis v. Forest Pharms., Inc., 217 F. Supp. 2d 638 (D. Md. 2002).
The court, while recognizing the holdings in Watson v. Peoples Sec. Life Ins. Co., 588
A.2d 760 (Md. 1991), and Insignia Residential Corp v. Ashton, 755 A.2d 1080 (Md. 2000),
found that no causal nexus linked plaintiff’s reaction to the assault to her ultimate discharge. The
court held that plaintiff was not fired because the she rebuffed the alleged harasser’s advances or
because she sought to redress his misconduct through her complaint, but rather because, after an
eight month leave of absence, she unreasonably refused to return to work. The court recognized
that “[s]ometimes, of course, the facts underlying a discharge constitute both a violation of Title
VII and of another mandate of public policy, independent of the anti-discrimination law.” . In
such circumstances, the court recognized that the terminated employee can sue for wrongful
discharge as the tort action reinforces, rather than duplicates, the public policy expressed in Title
VII.
Petrovski v. Fed. Express Corp., 210 F. Supp. 2d 943 (N.D. Ohio 2003).
The court held that, absent state action, a public policy tort claim cannot be based on the
public policy embodied in the freedom of speech provisions of the First Amendment and §11,
Article 1 of the Ohio Constitution. See also Stephenson v. Yellow Freight Sys. Inc., 1999 Ohio
App. LEXIS 4994 (Ohio Ct. App. 1999); Tiernan v. Charleston Area Med. Ctr., 506 S.E.2d 578,
589 (W. Va. 1998); accord Barr v. Kelso-Burnett Co., 478 N.E.2d 1354, 1357 (Ill. 1985); Korb
v. Raytheon Corp., 574 N.E.2d 370 (Mass. 1991); Prysak v. R.L. Polk Co., 483 N.W.2d 629, 634
(Mich. Ct. App. 1992); Johnson v. Mayo Yarns, Inc., 484 S.E.2d 840, 843 (N.C. Ct. App. 1997);
Drake v. Cheyenne Newspapers, Inc., 891 P.2d 80, 82 (Wyo. 1995); see also David C. Yamada,
Voices From the Cubicle; Protecting and Encouraging Private Employees Speech in the Post-
Industrial Workplace, 19 Berkeley J. Emp. & Lab. L. 1, 22 (1998) (“In arguing for protection of
private employee speech under the public policy exception, advocates and commentators have
turned to the First Amendment and its state counterparts as the requisite sources of public policy.
This argument, however, has had little success in the courts.”); Lisa B. Bingham, Employee Free
Speech in the Workplace: Using the First Amendment as Public Policy for Wrongful Discharge
Actions, 55 Ohio St. L.J. 341, 391 (1994) (“The prevailing view is that the First Amendment
cannot be the basis of a public policy exception in wrongful discharge claims in the absence of
27
state action.”). Only one case holds that the First Amendment and its state counterpart embody
public policy sufficient to support a wrongful discharge action against a private employer.
Novosel v. Nationwide Ins. Co., 721 F.2d 894 (3d Cir. 1983). In Novosel, the court stated that
“an important public policy is in fact implicated wherever the power to hire and fire is utilized to
dictate the terms of employee political activities,” and that the “protection of important political
freedoms … goes well beyond the question whether the threat comes from state or private
bodies.” In a subsequent case, however, the Pennsylvania Supreme Court refused to adopt the
broad holding in Novosel. See Paul v. Lankenau Hosp., 569 A.2d 346, 348 (Pa. 1990); see also
Bingham, supra, at 350 n. 39 (“Novosel has been described as the most far-reaching extension of
the public policy doctrine and as a dramatic break with precedent because prior cases had
unanimously required that government action be present in order for a constitutional violation to
exist.”).
Bleich v. Florence Crittenton Servs. of Balt., Inc., 632 A.2d 463 (Md. Ct. Spec. App. 1993).
The court held, as it did in Miller v. Fairchild Indus., 629 A.2d 1293 (Md. 1993), that a
discharge by a private employer in retaliation for plaintiff’s exercise of her free speech rights
fails to state a wrongful discharge claim, relying on the free speech guarantees of the Maryland
and federal constitutions. The court went on to find that plaintiff’s allegations that she, a teacher
at a licensed residential child care facility, was fired for sending a letter to the state licensing
authorities, in which she alleged abuse or neglect, stated a wrongful discharge claim.
Lee v. Denro, Inc., 605 A.2d 1017 (Md. Ct. Spec. App. 1992).
In Lee, an employee filed a wrongful discharge suit claiming that her discharge was a
violation of public policy. The employee had been terminated for informing the FAA – for
which her employer had a contract with – that test procedures had not been followed by her co-
worker. She alleged that her termination was a violation of the public policy for striving and
adhering to the maximum safety in air transportation. The Maryland Court of Special Appeals
found that the employee failed to prove that her grievance was “anything more than a private
dispute regarding the employer’s execution of normal management operation procedures.”
Molesworth v. Brandon, 672 A.2d 608 (Md. Ct. Spec. App. 1996).
The Maryland Court of Special Appeals in Molesworth held that employees could still
sue small employers or those with less than 15 employees and who were exempt from the
Maryland Fair Employment Practices Acts and federal anti-discrimination statutes under
common law wrongful discharge principles. The common law claims would be based on the
public policy against discriminatory discharged based on race, color, sex, national origin,
religion, ancestry, age, marital status or handicap.
28
The Maryland Court of Appeals affirmed the language of an anti discrimination statute as
not providing immunity for small employers for discriminatory actions and from the greater
public policy against sex discrimination. The Court of Appeals also looked to the intent of Title
VII.
McIntyre v. Guild, Inc., 659 A.2d 398 (Md. Ct. Spec. App. 1995).
McIntyre involved an employee who filed a claim against a government employer for
wrongful discharge and breach of employment contract. The court in held that the employee
failed to state a claim for wrongful discharge when he alleged that he was fired for reporting a
False Claims Act violation. The court also held that the employee was an at-will employee and
that there was no breach of contract when he was terminated. Additionally, since there was no
breach of contract, the employee also did not have a claim for tortious interference with contract
relations with a government official. Relying on Lee v. Denro, Inc., 605 A.2d 1017 (Md. 1992),
the court held that the employee, who had not filed under the False Claim Act and merely alleged
that his employer’s action violated the “intent” of the Act, needed more than conclusory
allegations to support his claim for wrongful discharge.
Storey v. Patient First Corp., 207 F. Supp. 2d 431 (E.D. Va. 2002).
The plaintiff failed to identify a specific Virginia statute as the basis for his wrongful termination
claim. He did identify a federal statute, the False Claims Act, but the court held that a wrongful
termination claim must be based on a state statute. See also McCarthy v. Texas Instruments,
Inc., 999 F. Supp. 823, 829 (E.D. Va. 1998) (this type of claim “must find root in a state statute,”
and it cannot have its genesis in an act of Congress) (emphasis in original); Oakley v. May Dept.
Stores, 17 F. Supp. 2d 533, 536 (E.D. Va. 1998) (the wrongful termination exception to the at-
will doctrine “is predicated on public policies derived from Virginia statutes, not federal laws.”).
Chavez v. Sievers, 43 P.3d 1022 (Nev. 2002).
The Nevada Supreme Court held that “[o]nce the legislature determined that small
business should not be subject to racial discrimination suits, we decline to create an exception to
the at-will doctrine for alleged racial discrimination at these businesses.” See also Jennings v.
Marralle, 876 P.2d 1074 (Cal. 1994); Brown v. Ford, 905 P.2d 223, 228 (Okla. 1995); Burton v.
Exam Ctr. Indus. & Gen. Med., 994 P.2d 1261 (Utah 2000).
Jennings v. Marralle, 876 P.2d 1074 (Cal. 1994).
The Supreme Court of California held that a wrongful termination claim would not lie against an
employer of fewer than five persons as such employers were exempt from the state anti-
discrimination law. Accord Gottling v. P.R., Inc., 61 P.3d 989 (Utah 2002) (rejecting a wrongful
29
discharge claim against small employers exempted from the Utah Anti-Discrimination Act on
preemption grounds, distinguishing Molesworth on that ground). In contrast, Maryland has held
that a wrongful termination claim can proceed against an exempt employer. Molesworth v.
Brandon, 672 A.2d 608 (Md. 1996) (Maryland’s anti-discrimination law (Article 49B) does not
provide for a private cause of action.) The court stated that a wrongful discharge claim could be
pursued against an employer exempted as a small business under Article 49(B), § 15(b). The
court held in Makovi v. Sherwin-Williams Co., 540 A.2d 494 (Md. 1988) aff’d, 561 A.2d 179
(Md. 1989) that a wrongful discharge will not lie against covered employer). See also, Huberts
v. Dudley, 993 P.2d 901 (Wash. 2000) (wrongful discharge claim can be pursued against exempt
employer).
Wior v. Anchor Indus., Inc., 669 N.E.2d 172 (Ind. 1996)).
The Indiana Supreme Court held that an employee did not state a valid cause of action
where he claimed that his employment was terminated because he refused to terminate a
subordinate for filing a worker’s compensation claim. The court held that the interest at stake is
adequately protected by the terminated employee’s cause of action.
Rowan v. Tractor Supply Co., 559 S.E.2d 709 (Va. 2002).
The Supreme Court of Virginia held that plaintiff’s complaint did not state a wrongful
discharge claim based on plaintiff’s allegation that her employer terminated her employment
because she refused to yield to her employer’s demand that she discontinue pressing criminal
charges of assault and battery against a fellow employee.
Wiles v. Medina Auto Parts, 773 N.E.2d 526 (Ohio 2002).
The employee was subjected to an adverse employment action in violation of the Family
and Medical Leave Act. The Ohio Supreme Court’s plurality opinion held that there is no need
to recognize a common law claim that the employee’s discharge was in violation of public policy
because the extant statutory remedy adequately protects society’s interests. See also Johnson v.
Honda of America Mfg., Inc., 221 F. Supp. 2d 853 (S.D. Ohio 2002). Accord Hamros v.
Bethany Homes & Methodist Hosp., 894 F. Supp. 1176, 1178-79 (N.D. Ill. 1995) (no retaliatory
discharge claim for plaintiff fired for exercising his rights under the FMLA since the FMLA
already prohibits retaliation). But see Danfelt v. Board of County Comm’rs of Washington
County, 998 F. Supp. 606 (D. Md. 1998) (court permitted the employee to support his claim for
wrongful discharge does not conflict with the FMLA).
30
Mitchem v. Counts, 523 S.E.2d 246 (Va. 2000).
The Virginia Supreme Court held that an insurance marketing representative who alleged
she was sexually harassed by her boss may proceed with a wrongful discharge claim in violation
of the public policy embodied in state laws against fornication, and lewd and lascivious behavior.
The court, over a dissent, distinguished Conner v. National Pest Control Ass’n, 513 S.E.2d 398
(Va. 1999), which had held that the Virginia Human Rights Act barred wrongful discharge
claims “based on any public policy which is reflected in the VHRA, regardless of whether the
policy is articulated elsewhere.” In Mitchem, the majority held that the Conner holding did not
bar claims for wrongful discharge in violation of public policies not reflected in the VHRA, even
if the challenged conduct also violates a VHRA policy. The federal district court subsequently
set forth its understanding of the reasoning underlying Mitchem by saying that the plaintiff in
Mitchem “was within the protective reach of both statutes...because she was arguably under a
legal duty, imposed upon her by statutes, to refrain from doing what her superior wanted her to
do, namely to engage in fornication and lewd and lascivious conduct.” Anderson v. ITT Indus.,
Corp., 92 F. Supp. 2d 516 (E.D. Va. 2000).
Anderson v. ITT Indus., Corp., 92 F. Supp. 2d 516 (E.D. Va. 2000).
Virginia’s wrongful termination case law, the Bowman v. State Bank of Keysville, 331
S.E.2d 797 (Va. 1985) doctrine, was summarized by the federal district court as follows:
[W]hile all Virginia statutes reflect a Virginia public policy to some degree,
“termination of an employee in violation of the policy underling any one of them
does not automatically give rise to a...cause of action for wrongful discharge.”
(citation omitted). Instead, statutes embodying a public policy sufficient to form
the basis of a wrongful discharge claim fall into two categories. (citations
omitted.) The first is a statute stating explicitly that it expresses a public policy of
the Commonwealth. (citation omitted). The second, far more common category
consists of statutes that do not explicitly state a public policy, but rather ‘are
designed to protect the property rights, personal freedoms, health, safety or
welfare of the people in general,’ and thereby further an underlying, established
public policy that is violated by the discharge at issue. (citations omitted). Yet,
even if a statute falls within one of these categories, it may not serve as the basis
of a Bowman claim, unless the aggrieved employee also shows that he or she is a
member of the class of individuals the public policy is intended to benefit.
(citations omitted). In other words, to state a Bowman claim, the discharged
employee must show that he or she “fell within the protective reach of the statute
which supplied the public policy component of his or her claim.” Leverton v.
AlliedSignal, Inc., 991 F. Supp. 486, 493 (E.D. Va. 1998).
31
Dray v. New Mkt. Poultry, Inc., 518 S.E.2d 312 (Va. 1999).
The Virginia Supreme Court rejected a wrongful termination claim where the plaintiff, a
quality control inspector, alleged that she was terminated after she informed a government
inspector that the employer’s product was adulterated in non-compliance with the Virginia Meat
and Poultry Products Inspection Act. In doing so, the court reasoned as follows:
The Act upon which this plaintiff relies does not confer any rights or duties upon
her or any other similarly situated employee of the defendant. Instead, the Act’s
objective is ‘to provide for meat and poultry product inspection programs that will
impose and enforce requirements with respect to intrastate operations and
commerce.’ Code § 3.1-884.19. The plaintiff identifies two of the Act’s
provisions that she says articulate a public policy allowing her to evade the
employment-at-will doctrine. She relies upon Code § 3.1-884.22, which forbids
intrastate distribution of uninspected, adulterated, or misbranded meat and poultry
products. She also relies upon Code § 3.1-884.25(2), which establishes criminal
penalties for any person who ‘resists...impedes...or interferes’ with state meat
inspectors. These provisions do not secure any rights this plaintiff, nor do any
other provisions of the Act. Rather, the Act establishes a regulatory mechanism
directed only to government inspectors and industry management.
Simonson v. Trinity Reg’l Health Sys., 221 F. Supp. 2d 982 (N.D. Iowa 2002).
The court, as had the Iowa Court of Appeals in McMahon v. Mid-America Constr. Co. of
Iowa, 2000 WL 1587952 (Iowa App. Oct. 25, 2000), declined to decide whether Iowa recognizes
a claim for wrongful failure to rehire in retaliation for seeking workers’ compensation benefits.
The court stated that it believed it is “likely” that Iowa would recognize such a claim.
Brandon v. Anesthesia & Pain Mgmt. Assocs., LTD, 277 F.3d 936 (7th Cir. 2002).
The court found that an Illinois wrongful discharge claim could be based on federal law,
i.e., those federal statutes that criminalize Medicare fraud. Interestingly, Judge Wood, in dicta,
stated that under the Supremacy Clause, the state is “required to treat federal law on a parity with
state law, and thus it is not entitled to relegate violations of federal law or policy to second class
citizenship.” The court then went on to reject the lower court’s alternative holding that the anti-
retaliation provisions of the federal False Claims Act bar plaintiff’s claim. The court reasoned
that because plaintiff only notified the shareholders of his concerns about illegal billing practices,
and because such conduct did not constituted protected activity under the FCA, see e.g., United
States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998); Zahodnick v. Int’l
Bus. Machs. Corp., 135 F.3d 911, 914 (4th Cir. 1997), as such actions were not done pursuant to
a qui tam action and because Illinois does not require an employee to report illegal conduct to
authorities for there to be a basis for a retaliatory, wrongful discharge claim, see Lanning v.
Morris Mobile Meals, Inc., 720 N.E.2d 1128 (Ill. 1999), the plaintiff could pursue the wrongful
32
discharge claim. The court further held that there is nothing in the FCA to suggest that Congress
intended to preempt retaliatory discharge claims based on allegations of fraud on the
government. Finally, the court stated that even if there was some kind of federal remedy
available under the FCA, that is “one of many factors in a pragmatic approach toward
determining when the tort of retaliatory discharge will lie” and Illinois “seems to take a more
exacting approach to the availability of an alternative remedy” than the federal courts do in
comparable situations, e.g., Bivens v. [Six Unknown Named Agents of the Federal Bureau of
Narcotics], 403 U.S. 388 (1971) actions.
Lanning v. Morris Mobile Meals, Inc., 720 N.E.2d 1128 (Ill. App. Ct. 1999).
The Illinois Appellate Court held that a wrongful discharge claim can proceed where
employee did not report illegal conduct to authorities, but only to employer.
Ghorbanni v. N.D. Council on the Arts, 639 N.W.2d 507 (N.D. 2002).
The North Dakota Supreme Court held that an action for retaliatory discharge in violation
of public policy is a tort. The court collected authorities so holding.
Symeonidis v. Paxton Capital Group, Inc., 220 F. Supp. 2d 478 (D. Md. 2002).
Plaintiff complained about defendant’s failure to pay minimum wage and to pay
compensation due to him. Plaintiff alleged he was fired on account of his complaints, and
plaintiff filed a wrongful termination claim. The court granted summary judgment to the defense,
relying on Chappell v. S. Md. Hosp., 578 A.2d 766 (Md. 1990), and Makovi v. Sherwin-
Williams Co., 561 A.2d 179 (Md. 1989), on the ground that other civil remedies were available.
See also Jones v. Giant Food, Inc., 2000 WL 1828283 (D. Md. 2000) (Makovi barred wrongful
discharge claim based on anti-discrimination law which provided a statutory remedy); Orci v.
Insituform East, Inc., 901 F. Supp. 978 (D. Md. 1995) (holding that because Title VII provides
its own remedies for the type of behavior of which plaintiff complains, no claim for wrongful
discharge lies); (holding that the existence of statutory federal and state remedies for a discharge
of an employee in retaliation for reporting illegal employment discrimination and violations of
state and federal minimum wage laws precluded a wrongful discharge claim).
Porterfield v. Mascari, 788 A.2d 242 (Md. 2002), aff’d, 823 A.2d 590 (Md. 2003).
The Maryland Court of Special Appeals declined to recognize a wrongful termination

claim where plaintiff alleged she was terminated for seeking to consult with an attorney before
signing a written warning of inadequate job performance. The court held that, without more,
being fired for exercising the general right to consult counsel is not enough. The court went on
to say that “[t]he conduct of the employer and the nature of the potential claim, if any, are
33
relevant.” The court emphasized that Watson v. Peoples Sec. Life Ins. Co., 588 A.2d 760 (Md.
1991), that there ordinarily is no violation of public policy when an employer discharges an at-
will employee in retaliation for the employee having sued the employer and that there was
nothing in the instant case “to take this case out of the general rule expressed in Watson --- not
even the type of conduct discussed in the Watson dissent, i.e., conduct that would constitute an
intense personal affront to an employee.” The court distinguished cases from other jurisdictions
on that basis. Thompson v. Coborn’s Inc., 871 F. Supp. 1097 (N.D. Iowa 1994);
Simonelli v. Anderson Concrete Co., 650 N.E.2d 488 (Ohio 1994).
The Maryland Court of Appeals affirmed the lower holding that “there [was] no
sufficiently clear mandate of public policy” that had been violated. Judge Eldridge wrote a
dissenting opinion, to which Chief Judge Bell and Judge Raker joined, stating that “one has a
right to seek advice of his or her attorney being forced to sign an important document.”
McKay v. Ireland Bank, 59 P.3d 990 (Idaho Ct. App. 2002).
The Idaho Court of Appeals rejected a wrongful discharge claim where plaintiff, an at-
will employee, alleged she was terminated after she told her employer that she planned to run for
political office, county treasurer. The defendant bank had a policy requiring any employee
running for public office to resign two weeks before the election. The court said it “cannot say
[the plaintiff’s] interest in running for political office outweighs the bank’s interest in avoiding
being associated with partisan politics and the potential negative effects on its business
operations.” See also Shovelin v. Cent. N.M. Elec. Coop. Inc., 850 P.2d 996 (N.M. 1993);
contra Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo. Ct. App. 1985).
Feliciano v. 7-Eleven, Inc., 559 S.E.2d 713 (W. Va. 2001).
An at-will employee of a nationwide convenience store chain was terminated after he

violated the company’s policy against employees subduing or otherwise interfering with a store
robbery, by grabbing and disarming a would-be robber, and then restraining her until the police
arrived. In West Virginia, an employer’s absolute right to discharge an at-will employee is
subject to an exception where a substantial public policy principle is contravened by termination.
In answering a certified question from the Northern District of West Virginia as to whether the
right of self-defense fell within the substantial public policy exception to the at-will employer
rule, the Supreme Court of West Virginia answered the question in the affirmative, holding that
the self-defense right is an entrenched substantial public policy that may be extended to one’s
place of employment, stating that “in defending himself, his family or his property from the
assault of an intruder…his right to stand his ground in defense thereof without retreating extends
to his place of business….”
34
Union Underwear Co. v. Barnhart, 50 S.W.3d 188 (Ky. 2001).
The Supreme Court of Kentucky reversed a judgment against a defendant employer in an

age discrimination action, holding that the Kentucky Civil Rights Act did not permit
extraterritorial application and that an employer with a headquarters in Kentucky was not subject
to the act with respect to an employee working in another state. The presumption in Kentucky is
that a statute is only meant to apply within its borders unless the statute evinces a contrary intent.
The explicit language of the statute tended to show that the Act was meant to specifically protect
individuals within the state of Kentucky and there was no language authorizing application to
other jurisdictions. The court further stated that the Kentucky Civil Rights Act would be
“running afoul” of the Commerce Clause, which disables a state statute from governing that
which occurs wholly outside its own borders. Chief Justice Lambert of the Kentucky Supreme
Court dissented, stating that the majority’s reliance on the language discussing the protection of
individuals within Kentucky represented a “tortured reading” of the KCRA that failed to
acknowledge other provisions that provided explicit protections for any individual employed by
an employer within the state. The dissent also noted that the majority’s opinion thwarted the
public policy of both the state and the federal government by denying a jury award of a million
dollars in an age discrimination case and overturned a unanimous panel opinion in the
intermediate appellate court.
Wounaris v. W.Va. State Coll., 588 S.E.2d 406 (W. Va. 2003).
The Supreme Court of Appeals of West Virginia reversed a jury award for the defendant
employer school and remanded the case to the lower court where the plaintiff claimed he had
was improperly terminated a second time even though the grievance process at the University
had not yet been exhausted and even after an administrative law judge had reinstated him
pursuant to a default judgment based on a claim for reverse discrimination after an initial
termination. An employer’s right to terminate an employee at will is tempered by substantial
public policy principles, one of which is the substantial public policy against reverse racial
discrimination. The lower court improperly neglected to instruct the jury to presume an
improper motive for termination based upon the prior default judgment by the Administrative
Law Judge. The court clearly stated that it was not holding that any employee who files a
grievance or wrongful discharge is immune from termination, but that an employer must give a
persuasive reason for terminating an employee in spite of both a reinstatement order and a still-
active grievance process. Justice Stracher, joined by Justice Davis, dissented stating that the jury
had every opportunity to determine whether the plaintiff had been treated unfairly.
Lewis v. Nationwide Mut. Ins. Co., 2003 U.S. Dist. LEXIS 5126 (D. Conn. 2003).
The court denied a motion to dismiss claims for wrongful discharge and intentional
infliction of emotional distress, pursuant to Federal Rule 12(b)(6). The plaintiff, a member of the
Connecticut Bar, claimed that his discharge was wrongful, even though his employment contract
was at-will, because he would have been required to violate the Rules of Professional Conduct to
35
engage in the duties that his employer asked of him. The court held that since such conduct on
the part of the employer could be construed as against public policy, it could therefore be an
exception to the presumption of at-will employment. Further, after plaintiff was fired on the eve
of a Christmas vacation, his office was broken into, money was stolen, and his furniture was
dumped on the front lawn by a moving company, all in violation of his agreement with
Nationwide to retrieve his belongings after his vacation, a claim for intentional infliction of
emotional distress could be stated.
Jackson v. Morris Commc’n Corp., 657 N.W.2d 634 (Neb. 2003).
The Supreme Court of Nebraska held that under the public policy exception to the at-will
doctrine that an employee can state a claim for wrongful discharge and that an action for
retaliatory discharge when an employee has filed a workers’ compensation claim fell within this
public policy exception, because the Nebraska Workers’ Compensation Act presented a “clear
mandate of public policy” that warranted application of the exception.
Fosmo v. State, 59 P.3d 105 (Wash. Ct. App. 2002).
The Washington Court of Appeals held that there is no public policy prohibiting
terminated employees from participating in an employee advisory service program or the
dismissal of those who violate the terms of their reinstatement agreement.
Silva v. Am. Fed’n of State, County, and Mun. Employees, 37 P.3d 81 (N.M. 2001).
The New Mexico Supreme Court held that an employee who could only be fired for
cause was not an at-will employee and therefore could not state a claim for the tort of retaliatory
discharge in New Mexico, which had been created as an exception to the at-will employment
doctrine. The court further held that for employees who could only be fired for just cause still
had an alternative cause of action where their employment contract had been breached by a
wrongful termination, but that the analysis with respect to retaliatory discharge for just cause
employees and for at-will employees are distinct from one another.
Defamation
Bowling v. King & Spalding, 2006 D.C. App. LEXIS 250. (D.C. 2006)
An employee fired for insubordination, circulating an office memo accusing partners at a

law firm of inappropriate actions, and sued claiming a violation of the D.C. FMLA, defamation,
intentional infliction of emotional distress, and conversion. The Court of Appeals dismissed the
36
FMLA and conversation claims due to failure to bring a timely claim. Plaintiff’s defamation
claim rested on a statement made by a non-defendant, fellow employee, that plaintiff was “totally
worthless.” The statement allegedly was made during a meeting with defendant’s human
resources manager during a discussion of plaintiff’s work performance. The Court of Appeals
held that the comment was “subjective” and appeared to be an expression of opinion. The court
went on to hold that even if the statement of opinion might have an explicit or implicit factual
foundation, given the circumstances under which it was made, it was protected by the common
interest privilege. See Altimont v. Chatelain Samperton, 374 A.2d 284, 290 (D.C. 1997).
Finally, the court held that plaintiff failed to surmount the privilege by a showing of malice as
allegations that the co-worker was angry, yelling and wanted her work load lightened and that
the meeting was stressful, was insufficient evidence to support a finding of malice.
Brinich v. Jencka, 757 A.2d 388 (Pa. 2000.)
The Pennsylvania Supreme Court held that implying that another is using illegal drugs to
third persons constitutes slander per se. The court relied on the principle that statements
imputing “a criminal offense, punishable by imprisonment . . .” constitutes slander per se.
Restatement (Second) of Torts § 570 (a), (c).
Cicconi v. McGinn Smith & Co., 2005 N.Y. App. Div. LEXIS 14672 (N.Y. App. Div., 2005).
The New York Appellate Division Court held that statements made on a U-5 form
regarding employee termination are absolutely privileged and cannot form the basis for a
defamation claim-unless the company recklessly handled the information. This case overruled
previous holdings stating that U-5 forms enjoy a qualified immunity standard. See, e.g.,
Acciardo v. Millennium Secs. Corp., 83 F. Supp. 2d 413 (S.D. N.Y. 2000); Dawson v. N.Y. Life
Ins. Co., 135 F.3d 1158 (7th Cir. 1998).
Gov’t Micro Res., Inc. v. Jackson, 624 S.E.2d 63 (Va. 2006).
Judge Lacy delivered the opinion of the court. Plaintiff employee sued defendant
employer for breach of contract and defamation. GMR appealed the trial court’s award of
compensatory damages on the breach of contract claim and the award of compensatory and
punitive damages on the defamation claim. A remitter reducing the award totals was granted.
Jackson appealed.
GMR is a technology resale and services company which hired Jackson to be the
president and chief executive officer. Jackson soon realized the financial stability of the
company was not what he was led to believe when he was hired. After several months as
president and CEO, GMR terminated Jackson’s employment for cause asserting “gross financial
mismanagement.” Jackson was hired at a company with which GMR did business soon
thereafter. Jackson alleged that GMR made statements to his new employer that he lost a large
amount of money and was fired as a result.
37
The court affirmed the trial court in all respects except the portion of the judgment which
limited the compensatory damage award on the employee’s defamation claim. Jackson satisfied
the requirement that the defamatory words “must be substantially proven as alleged.” A proving
of actual malice by clear and convincing evidence is a necessary antecedent to awarding punitive
damages; Jackson satisfied this by showing GMR made statements with knowledge of their
falsity.
Messina v. Fontana, 260 F. Supp. 2d 173 (D.D.C. 2003).
The court held that plaintiff could not bring a claim of defamation against defendant
attorney for defamatory statements in a letter because the letter contained statements indicating it
was preliminary to litigation and therefore was protected by the judicial proceedings privilege.
Oparaugo v. Watts, 884 A.2d 63 (D.C. 2005).
Judge Wagner delivered the opinion of the court. Plaintiff husband appealed the trial
court’s dismissal for failure to state a claim his defamation action against his wife and other
defendants.
A plaintiff must prove four elements to establish defamation: 1) that the defendant made
a false and defamatory statement concerning the plaintiff; 2) that the defendant published the
statement without privilege to a third party; 3) that the defendant’s fault in publishing the
statement amounted to at least negligence; and 4) either that the statement was actionable as a
matter of law irrespective of special harm or that its publication caused the plaintiff special harm.
The court held that Oparaugo sufficiently stated his claim to overcome a motion to dismiss for
failure to state a claim. The case was reversed and remanded for further facts.
Lipscombe v. Crudup, 888 A.2d 1171 (D.C. 2005).
Judge Farrell delivered the opinion of the court. Reverend Lipscombe appealed the trial
court’s denial of a motion to dismiss for lack of subject matter jurisdiction. The court affirmed.
Crudup’s complaint alleged that Rev. Lipscombe falsely stated at a public event that a
sexual harassment suit was pending against Crudup. Crudup further alleges that Rev. Lipscombe
made the claim to deflect mounting pressure from an investigation into his possible misuse of
church funds. Reverend Lipscombe asserted that Crudup’s complaint did not allege with
sufficient specificity to overcome the First Amendment’s protection of his statements given his
clergy status. While the court recognized that in Heard v. Johnson, 810 A.2d 871, 882-83 (D.C.
2002), it had applied a heightened pleading standard to a defamation claim “arising entirely out
of a church’s relationship with its pastor, here Crudup’s complaint satisfied a heightened
pleading standard. The court indicated that it was not persuaded that Crudup was required to
plead the defamation with greater specificity for a court and jury to be able to employee neutral
principals of law to resolve his claims or to resolve them without inquiry into matters
ecclesiastical cognizance.
38
While the complaint made repeated allegations that Reverend Lipscombe had
misappropriated church monies and had made the defamatory statements to cover up his
misdeeds, the court held that these allegations regarding the alleged motivation for the
defamatory statements would not require the trial court to adjudicate the actual financial affairs
of the church. The court emphasized that it did not meant to suggest that issues regarding church
financial practices are per se beyond the authority of civil courts to adjudicate. It held that it had
implicitly rejected that notion in Bibleway Church v. Beards, 680 A.2d 419, 428 (D.C. 1996).
In conclusion, the court stated that courts in deciding disputes about church property,
polity, and administration must do so without resolving controversies over religious doctrine and
practices. Quoting the 5th Circuit in Sanders v. Casa View Baptist Church, 134 F.3d 331, 335-
36 (5th Cir. 1998):
The First Amendment does not categorically insulate religious relationships from judicial
scrutiny, for to so would necessarily extend constitutional protection to the secular
components of these relationships. . . . The constitutional guarantee of religious freedom
cannot be construed to protect secular . . . behavior, even when it comprises part of an
otherwise religious relationship between a minister and a member of his or her
congregation.
Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336 (3d Cir. 2005).
The court reaffirmed that for a defendant to be liable for “defamation per se,” the plaintiff
need only prove “general damages” (harm to reputation). The plaintiff need not prove “special
damages” (financial harm).
Jarrett v.Goldman, 2005 Va. Cir. LEXIS 49 (Va. Portsmouth Cir. Ct. 2005).
Judge Davis delivered the opinion of the court. Mr. Jarrett claimed to have been called
names by his supervisors in violation of Virginia’s insulting words statute, Va. Code § 8.01-45 –
“All words shall be actionable which from their usual construction and common acceptance are
construed as insults and tend to violence and breach of the peace” – but the court denied his
claim on the grounds that the words spoken were relative and depended largely on the speaker’s
viewpoint. The statutory elements for a claim vary slightly from the common law defamation
claim: no proof of publication is needed and the words must be provocative. Mr. Jarrett’s
employer called Mr. Jarrett a “motherf****r,” but the court declined to find that actionable since
it was not demonstrably false; literally, it may have been, but given its normal construction and
use, people would not expect Mr. Jarrett to be engaging in incest. In the same way, the
employer’s epithet that Mr. Jarrett was a “f***ing idiot” was not actionable because it did not
convey the false representation that Mr. Jarrett was of limited mental capacity. The court found
that the supervisor’s charge that Mr. Jarrett was “incompetent” was given in the context of
providing reasons for Mr. Jarrett’s discharge and thus privileged. See Newman v. Hansen &
Hempel Co., 2002 U.S. Dist. LEXIS 21233 (N.D. Ill. 2002); Brattis v. Rainbow Advertising
Holdings, LLC, 2000 U.S. Dist. LEXIS 7345 (S.D.N.Y. 2000). Mr. Jarrett’s claims for
39
defamation on all these counts met the same fate as the actions under the Insulting Words
Statute.
Martino v. Bank of Am. Servs., 2004 Va. Cir. LEXIS 323 (Va. Charlottesville Cir. Ct. 2004).
Judge Hogshire delivered the opinion of the court. Plaintiff employee worked at
defendant bank. He was accused by a coworker of attempting to steal bank property as he
cleared out his desk after his termination, but a subsequent police investigation cleared him of
any wrongdoing. Later, he entered the bank to do some personal banking and a coworker asked
if he was allowed to be on the premises. Plaintiff sued for defamation per se, defamation, and
conspiracy to injure business reputation. Defendant’s motion to compel arbitration and stay
proceedings was granted.
Union of Needletrades, Indus. & Textile Employees v. Jones, 603 S.E.2d 920 (Va. 2004).
Judge Koontz delivered the opinion of the court. Defendant union moved the court to set
aside the trial court’s award for Mr. Jones because he could not prove that the statement made by
the union was false, and thus Mr. Jones could not support a claim of defamation. The court ruled
in favor of the union.
Gray v. AT&T Corp., 357 F.3d 763 (8th Cir. 2004).
The employee sued AT&T Corp. for making allegedly defamatory statements regarding
Gray’s termination. The United States District Court for the Western District of Missouri
granted summary judgment to AT&T concluding that the company had not published the
statements and if it had, the publications were qualifiedly privileged. The court affirmed because
there was no publication of the defamatory statements.
The defamation claim arose from the termination of Gray. She had missed work for a
non-work related injury, and sought to have the absences certified. The forms she submitted
were inconsistent, and an investigation resulted in her termination for falsifying corporate
documents. The corporation’s investigative team was told of the reason for her termination.
Additionally, a facsimile indicating that she was terminated for falsifying records was sent to a
company that processes AT&T’s unemployment claims after Gray sought unemployment.
Under Missouri law, a person publishes a defamatory statement by communicating the
statement to a third person. Communications between officers of the same corporation in the
regular course of business are not considered a publication, under this intra-corporate immunity
rule. Therefore, the court ruled that there was no defamation when AT&T informed several of
its own employees and a company regularly used to process unemployment claims about the
reason for Gray’s termination.
40
Phelan v. May Dep't Stores Co., 819 N.E.2d 550 (Mass. 2004).
Plaintiff sued employer for defamation and false imprisonment arising out of an
investigation into alleged accounting discrepancies being hidden from the employer. A jury
found in favor of plaintiff, and the company moved for a judgment notwithstanding the verdict
on the charge of defamation. The trial court granted the motion, and the court of appeals
reversed. Defendants appealed the judgment.
The case arose when the company began an internal investigation due to accounting
discrepancies. Ultimately, the employee Phelan was not to blame, as it was one of his
subordinates who had committed the wrongdoing. During the course of the day that the
investigation was held, the employee was not allowed to leave the building, was accompanied at
all times by a security guard, and was not allowed to use the telephone. The employee indicated
that he felt embarrassed and humiliated because coworkers were staring at him while he was
being monitored by the security guard. At the end of the day, Phelan was informed that he was
being suspended and was ultimately terminated.
The Massachusetts Supreme Court held that even viewing the evidence in the light most
favorable to the employee, defendants’ conduct did not rise to the necessary level of publication
required for defamation. The court agreed with the defendants’ contention that their conduct did
not convey an unambiguous false statement about Phelan. Additionally, the employee would
have had to produce evidence that an observer interpreted the defendants’ conduct as conveying
such a meaning, which Phelan did not do. The court recognized that defamatory publication may
result from physical actions. However, the employee was required to present testimony by at
least one co-worker to show that the physical action (being escorted by a security guard) was
viewed by a third party as a defamation (that Phelan had engaged in criminal wrongdoing). The
employee failed to present such evidence.
Fuste v. Riverside Healthcare Ass’n, 575 S.E.2d 858 (Va. 2003).
Whether a supposedly defamatory statement is opinion or fact is a question of law to be

decided by the court. Words that are purely expressions of opinion, unless they rise to the level
of fighting words, are not actionable on defamation grounds.
The court discusses several categories of words that are considered defamatory per se
when falsely spoken; they are actionable as defamation per se when they “prejudice [a] person in
his or her profession or trade.” Carwile v. Richmond Newspapers, Inc., 82 S.E.2d 588, 591
(1954). These include words that suggest a particular unfitness of a person to perform office
duties or to do those duties with requisite integrity. The court then states that every other
defamatory utterance, though not itself actionable, may become actionable if the utterance
inflicts special damages on another. However, words that are “merely interpretative, or
insulting, or imputing only disorderly or immoral conduct, or ignoble habits, propensities or
inclinations or a want of refinement, delicacy or good breeding are not regarded by the common
law as sufficiently substantial injuries to call for redress in damages.” Jarrett v. Goldman, 2005
Va. Cir. LEXIS 49 (Vir. Portsmouth Cir. Ct. 2005).
41
Walker v. Grand Central Sanitation, Inc., 634 A.2d 237 (Pa. 1993).
The Pennsylvania Supreme Court relied affirmed a previous ruling that “statement which
is a mere expression of opinion is not [defamation].” See Baker v. Lafayette College, 504 A.2d
247 (Pa. 1986). Simply because an employer made a negative comment against an employee
does not make it defamation or slander. The employee must show that the defaming utterance
was made with the intent to cause damage to another’s business, reputation, etc. Additionally,
the plaintiff must prove the damaging effects of the respective utterance.
The court also held that “a publication in which the speaker imputes to another conduct,
characteristics, or a condition that would adversely affect her in her lawful business or trade is
termed a ‘slander per se.’” They further held that, in order to recover damages for “slander per
se,” a plaintiff must still prove general damages.
Varian Medical Sys. v. Delfino, 106 P.3d 958 (Cal. 2005).
Granting a motion to strike a claim against a defendant pursuant to the Anti-SLAPP

statute constitutes a ruling on the merits of the case. Likewise, an appellate reversal of a lower
court’s denial of the motion to strike effectuates the same result. When, as here, the plaintiff
wins at trial, an appellate reversal of the lower court’s denial of the defendant’s motion to strike
under the Anti-SLAPP statute is inimical to and incompatible with the plaintiff’s victory. Given
the fact that all the plaintiff’s causes of action were tied up in the defendant’s motion to strike,
the court’s reversal of the ruling at trial and grant of the defendant’s motion to strike effectively
stripped the trial court of subject matter jurisdiction and made the lower court’s decision
completely moot.
Bridge Tech. Corp. v. Kenjya Group, Inc., 2004 Va. Cir. LEXIS 100 (Va. Fairfax Cir. Ct. 2004).
Judge Ney delivered the opinion of the court. Kenjya Group filed a cross-bill to Bridge
Tech’s charge that Kenjya Group improperly interfered with business, and a host of other
violations; Kenjya Group alleged that Bridge Tech improperly told the National Security
Administration about a possible problem with one of their employees which resulted in a
revocation of his security clearance and damage to business reputation. The court upheld Bridge
Tech’s demurred on this because of a federal regulation requiring the disclosure of information
that might result in a security breach. The court, however, did not allow Bridge Tech’s demurrer
as to allegations of statements made to other corporations in the defense contracting industry.
Mangold v. Analytic Servs., Inc., 77 F.3d 1442 (4th Cir. 1996).
Judge Niemeyer delivered the opinion of the court. The question before the court is
whether absolute immunity deflects liability from a government contractor for voluntary
statements made to governmental investigators in the course of an official investigation. Colonel
Mangold was investigated by the Air Force for allegedly improperly using his position of
42
influence to procure for a friend a desirable contracting job. Three officers of Analytic Services,
the target of Col. Mangold’s nepotism, provided investigators with statements and cassette tapes
of messages Col. Mangold left on their answering machines; these statements made clear the
tactics by which Col. Mangold attempted to leverage Analytic Services into acceding to his
demands. After Col. Mangold filed suit against Analytic Services for damage done to his
reputation by the aid given to investigators, Analytic Services countered by claiming immunity
for its officials’ responses given to governmental investigators. The trial court denied absolute
immunity. The Fourth Circuit weighed the pros and cons of a grant of absolute immunity: while
the free flow of information is essential, sometimes errant conduct goes unredressed due to the
privilege afforded certain communications. The court cited Barr v. Matteo, 360 U.S. 564 (1959)
(plurality), and Westfall v. Erwin, 484 U.S. 292 (1988), as establishing a common law doctrine
that immunity is afforded only to the extent that the public benefits obtained by granting
immunity outweigh its costs. Because official investigations are critical to the maintenance of
effective government, the costs of granting immunity to government officials are overshadowed
by the benefits of doing so. However, the granting of immunity to private entities is less clearly
appropriate, though the idea of shielding private entities from tort liability is not new. See, e.g.,
Boyle v. United Techs. Corp., 487 U.S. 500 (1988).
In deciding to grant immunity only to the extent necessary to further the public interest,
the Fourth Circuit in the instant case acknowledged two roots for this immunity: 1) the public
interest in eliminating fraud, waste, and mismanagement from governmental agencies; 2) the
common law privilege to testify before courts of law, grand juries, and governmental
investigators with absolute immunity. Because the officials of Analytic Services did not
volunteer information beyond that requested by the Air Force investigators in their battle against
government fraud, abuse, waste, and mismanagement, the officials of Analytic Services are
absolutely immune from state tort claims concerning their responses to the investigators’
questions.
Bolton v. Dep’t Human Serv., 540 N.W.2d 523 (Minn. 1995).
The employee sued for defamation as a result of the method of his termination after his
employment was terminated after he pursued guardianship of a resident at the group home where
he worked. The court held that the lone act of escorting the employee to the exit of the business
upon termination is not defamation.
Slotten v. Hoffman, 999 F.2d 333 (8th Cir. 1993).
Judge McMillan delivered the opinion of the court. Mr. Slotten worked for the Farm
Credit Bank of St. Louis, a company succeeded by Agribank FCB, of which Mr. Hoffman is the
representative. Agribank is part of the Farm Credit System network of banks created by
Congress to lend to farmers and their cooperatives, and according to 12 U.S.C. § 2011 Agribank
is a federal instrumentality and regulated by the Farm Credit Administration. In response to the
agricultural depression in the 1980s, Congress created the Farm Credit System Capital
Corporation (FCSCC) and gave it the authority to enter into contracts with members of the Farm
43
Credit System. Mr. Slotten stopped working at Agribank and began working for FCSCC two
months after Agribank agreed to give FCSCC “full and complete access to any book, records,
papers, loan files, documents, and personnel...[FCSCC] or any of its representatives or
employees may, in their sole discretion, identify or request.” At the time of Mr. Slotten’s hiring,
FCSCC was the subject of a highly critical audit by the Farm Credit Administration; Mr. Miller,
Mr. Slotten’s new supervisor at FCSCC felt pressured to hire Mr. Slotten lest he lose his own
job. The administration at FCSCC was shaken up, and afterward Mr. Miller felt free to review
Mr. Slotten’s qualifications for the position. As part of this review, Mr. Miller contacted Mr.
Hoffman, Mr. Slotten’s former supervisor, and Mr. Hoffman, Mr. Slotten claims, gave Mr.
Miller information indicating that Mr. Slotten hired substandard employees, was not trustworthy,
and was a “high-risk employee” while at Agribank. After this evaluation and other similar
evaluations regarding Mr. Slotten, Mr. Miller decided to terminate Mr. Slotten’s employment at
FCSCC. Mr. Slotten filed suit against Mr. Hoffman, and Mr. Hoffman raises this interlocutory
appeal to contest the trial court’s denial of Mr. Hoffman’s motion for summary judgment on the
grounds that his communication was blanketed by immunity.
The court asserted that when the federal government relies on private parties for the
execution of governmental functions and the private parties are under a legal duty to supply the
information necessary for the execution of these functions, private parties should be afforded the
level of immunity commensurate to governmental agencies and officials. See Becker v. Philco
Corp., 372 F.2d 771 (4th Cir. 1967); Gulati v. Zuckerman, 723 F. Supp. 353 (E.D. Pa. 1989);
Blum v. Campbell, 355 F. Supp. 1220 (D. Md. 1972). Because Agribank provided the
information to FCSCC in compliance with its obligations under the contract between the parties
concerning FCSCC’s open access to Agribank’s information, and said contract was authorized
by the Farm Credit Administration, Agribank and Mr. Hoffman are shielded by official
immunity.
Becker v. Philco Corp., 372 F.2d 771 (4th Cir. 1967).
Judge Bryan delivered the opinion of the court. The Fourth Circuit upheld the district
court’s granting of respondent employer’s motion for summary judgment. Employer claimed
that its report to the Department of Defense concerning petitioner’s suspected breach of
confidential information was privileged and thus immune from suit. The court analogized
respondent to a governmental agency: the government, by means of contract, had shared with it
State secrets, and respondent was working with knowledge available only to the Government of
the United States of America. Because respondent was imbued with such a status, the court had
little difficulty finding respondent’s communications privileged as they would be had the
respondent been a bona fide government agency or official; the communications were not open
to the public but remained private and confidential at all times.
44
Carter v. Aramark Sports & Entm’t Servs., Inc., 835 A.2d 262 (Md. 2003), cert. denied, 844
A.2d 427 (Md. 2004).
The Maryland Court of Special Appeals affirmed summary judgment for the defendants
where a former baseball park usher sued for among other things malicious prosecution,
interference with economic relations, and defamation. The plaintiff was charged with theft,
specifically for stealing frozen yogurt from her defendant-employer. The plaintiff was acquitted
of the charges and then sued for the above claims. Summary judgment for the defendant on the
malicious prosecution and related claims were upheld, because there was a reasonable ground of
suspicion constituting probable cause. Similarly, there was no liability for tortious interference
or defamation where the otherwise defamatory statement was published in good faith in
furtherance of the defendant’s legitimate interests.
American Communications Network, Inc. v. Williams, 568 S.E.2d 683 (Va. 2002).
The court reversed a $500,000 verdict in a defamation action based on a private

placement memorandum distributed to some 20 energy companies. The memorandum described
two reasons why it had replaced ACN Energy’s prior management. The supreme court found the
alleged defamatory statements to be either true or statements of opinion.
McNamee v. Jenkins, 754 N.E.2d 740 (Mass. App. Ct. 2001).
Plaintiff, a sergeant in the police department, supervised a Japanese-American patrol

officer who filed a grievance against plaintiff, accusing him of racial discrimination. The
grievant submitted a statement during the investigation alleging that plaintiff uttered a racial slur
directed at grievant and that plaintiff filed a false report stating that the patrol officer’s cruiser
was parked in an inappropriate location while on patrol. The court found that the actual malice
requirement was satisfied as there was a question of credibility (conflicting testimony) on the
issue of falsity. Accordingly, the court denied summary judgment.
Shabazz v. PYA Monarch, LLC, 271 F. Supp. 2d 797 (E.D. Va. 2003).
Judge Friedman delivered the opinion of the court. Plaintiff had sued his employer for
making statements to the EEOC, Virginia Employment Commission, and FBI regarding
statements made by plaintiff, a Muslim, aligning himself with the terrorists’ ideology following
September 11th. The court, in denying the plaintiff’s claims and granting the defendant’s
motions for summary judgment, found communications with the EEOC to be absolutely
privileged due to the quasi-judicial nature of the body and the communications were made with
respect to a judicial or quasi-judicial proceeding. The claim as to statements made to the VEC
was denied because Virginia law requires a written statement as a necessary element of a
defamation claim, but there was no publication of a statement, so the claim failed. Finally, the
court found that the employer’s statements to the FBI were absolutely privileged. Drawing
45
parallels to a Fourth Circuit decision, Holmes v. Eddy, 341 F.2d 477, (4th Cir. 1965) (holding
that statements made by a stockbroker to the SEC are protected communications), the court
found that the statements made by respondent in response to the FBI’s request for information
were protected from this defamation suit. Even if these communications were not absolutely
protected but only afforded qualified immunity, the court found no evidence of the malice
required to defeat the qualified immunity.
Echtenkamp v. Loudon County Pub. Schs., 263 F. Supp. 2d 1043 (E.D. Va. 2003).
Judge Ellis III delivered the opinion of the court. The questions presented to the court
regarded whether the plaintiff may make a § 1983 claim for wrongful deprivation of property
stemming from her right to continued employment and how much must be pled to defeat an
assertion of privilege as to communications.
Plaintiff must be entitled to a benefit conferred or protected by state law to have a
property interest. The Fourth Circuit earlier found that employment in the public education
system creates a property right if the contract for employment allows for termination only upon
good cause. Royster v. Board of Trustees, 774 F.2d 618 (4th Cir. 1985). Plaintiff’s contract
allowed for termination only upon good cause. However, plaintiff has been paid all she was due
by the school system; moreover, she was not terminated, only subject to discipline. The court
denied her § 1983 claim.
To prevail on a defamation claim under Virginia law, the plaintiff must show 1)
publication; of 2) an actionable statement: i) false and ii) injurious to reputation and/or
relationships with others; and 3) made with sufficient intent to harm. In the State of Virginia,
communications between people with an interest or duty as to the subject of the communication
are privileged as are statements made between employers and employees concerning a certain
employee’s disciplinary or discharge matters. In the instant case, neither party disputes that the
conversations made between plaintiff’s employer and her co-employees are privileged. Plaintiff
seeks to overcome the privilege by showing by clear and convincing evidence (the Virginia
standard) that the allegedly defamatory statements were made with common-law malice.
Common-law malice is behavior spurred by “personal spite, or ill-will independent of the
occasion on which the communication was made.” Se. Tidewater Opportunity Project, Inc. v.
Bade, 435 S.E.2d 131, 132 (Va. 1993). That is, the plaintiff must demonstrate that “the
communication was actuated by some sinister or corrupt motive such as hatred, revenge,
personal spite, ill will or desire to injure the plaintiff.” The plaintiff, naturally, must fortify her
pleading so that it may ultimately support a finding by clear and convincing evidence that the
statements made were made with common-law malice.
Lamb v. Weiss, 2003 Va. Cir. LEXIS 272 (Va. Winchester Cir. Ct. 2003).
Mr. Lamb was formerly employed by the local county chamber of commerce.
Statements made by his supervisor, Mr. Weiss, to a co-worker that Mr. Lamb was “incompetent”
and had misspent county funds. The truthfulness of an allegedly defamatory statement is a key
defense for those facing defamation complaints. That Mr. Lamb was described as “incompetent”
46
is a non-actionable opinion since there is no professional standard for those employed at
chambers of commerce, unlike those in the medical or legal professions. However, whether Mr.
Lamb properly spent the money in his budget is something that may be traced and objectively
proven. Hence, Mr. Weiss’ demurrer as to his statements about Mr. Lamb’s handling of his
budget is not sustained.
Baker v. District of Columbia, 785 A.2d 696 (D.C. 2001).
Employee sued for defamation arising out of a memorandum sent to the head of the
agency in which it was stated that she had had an affair with the then Executive Director of the
Department and subsequently a promotion request was sent forward for her. The court held that
the employee’s exclusive remedy was a grievance under the Comprehensive Merit Personnel
Act. See also Robinson v. District of Columbia, 748 A.2d 409 (D.C. 2000); Stockard v. Moss,
706 A.2d 561 (D.C. 1997); District of Columbia v. Thompson, 593 A.2d 621 (D.C. 1991). In
King v. Kidd, 640 A.2d 656 (D.C. 1999), the court held that an IIED claim, which had sexual
harassment as its foundation, did not fall within the scope of the CMPA.
Affolter v. Baugh Constr. of Oregon, Inc., 51 P.3d 642 (Or. Ct. App. 2002).
Plaintiff, a sheet metal worker on a construction project, was supervised by a project

superintendent. The two did not get along and the superintendent wanted plaintiff transferred
from his supervision. The superintendent was overheard to state that plaintiff had had “too much
to drink.” As a consequence of that accusation, plaintiff was transferred. Plaintiff sued for
defamation, the trial court granted summary judgment on the ground that the utterance was a
statement of opinion. The court of appeals reversed, holding that the statement was capable of a
per se defamatory meaning as it attacked a person in his professional or employment capacity.
The court found that the statement implied underlying facts that plaintiff had been drinking
before coming to work and that he was intoxicated on the job.
Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573 (Tex. 2002).
The Texas Supreme Court found that a supervisor’s lies about a subordinate during the
employer’s workplace investigation were actionable defamation, but that they were not made in
the course and scope of his employment as he lied to the company and did not lie for the
company.
Tacka v. Georgetown Univ., 193 F. Supp. 2d 43 (D.D.C. 2001).
Plaintiff sued in defamation for the publication of accusations of plagiarism to the

departmental rank and tenure committee and others in the university community. The university,
relying on the Farrington v. Bureau of Nat’l Affairs, Inc., 596 A.2d 58 (D.C. 1991), line of cases,
47
argued that it was protected by absolute privilege because plaintiff consented to publication of an
evaluation of articles he published in professional journals and implicitly consented, under the
terms of the faculty handbook, to the publication of the evaluation to the rank and tenure
committee. The court rejected defendant’s argument, finding that the court of appeals in Wallace
v. Skadden, Arps, Meagher & Flom, 715 A.2d 873 (D.C. 1998), not only distinguished the
Farrington line of cases on the basis of whether an employee has consented to the evaluation in
contract or through an affirmative act of consent, but also questioned whether the absolute
privilege should apply at all in cases where the alleged defamation goes far beyond criticism of
an employee’s work performance and a substantial question exists as to malice or excessive
publication. The court then found that summary judgment on the question of excessive
publication and malice was inappropriate based on the record, emphasizing that the question of
malice is a question of fact for the jury.
Lewis v. Forest Pharms., Inc., 217 F. Supp. 2d 638 (D. Md. 2002).
The court denied summary judgment to the defendant on a defamation claim arising out
of a warning letter that stated plaintiff was unable to sell defendant’s products effectively and
unable to behave professionally toward other employees. The court found that statement is
capable of conveying a per se defamatory meaning. Recognizing that communications arising
out of the employer-employee relationship enjoy a qualified privilege, the court found that the
plaintiff had shown, at least by a preponderance of the evidence, that defendants acted with
malice. The court noted that while it is clear that plaintiff to get presumed damages must make
the showing by clear and convincing evidence, the Maryland Court of Appeals has not
articulated the burden of proof that a plaintiff must satisfy to defeat a qualified privilege on the
basis of malice.
Woodfield v. Providence Hosp., 779 A.2d 933 (D.C. 2001).
The court of appeals held that an employee who signed a release, permitting her potential
employer to perform a background check with her former employers, does not have a claim for
defamation regarding statements made by a former employer during the course of the
background check.
James v. DeGrandis, 138 F. Supp. 2d 402 (W.D.N.Y. 2001).
The court denied summary judgment on libel claims where defendant threatened to send
defamatory letter and anonymous defamatory letter was sent.
48
Collins v. Red Roof Inns, Inc., 248 F. Supp. 2d 512 (S.D. W. Va. 2003).
The West Virginia Supreme Court held in response to a certified question from a lower
court that a party to a dispute is indeed absolutely privileged to publish to an opposing party
matter which is defamatory to a third person but related to the proceeding, where no judicial
action was currently pending, but where such an action was under serious consideration and
contemplated in good faith. The alleged defamatory statements were made after a potential
plaintiff asserted that they planned to bring an action against the defendant for payment of
certain severance benefits, when the defendant asserted that two third-party employees (the
plaintiffs in this particular case) were terminated for causal reasons rather than in the arbitrary
and capricious matter intimated by the potential plaintiff’s assertion. Because the assertions
were made both in good-faith contemplation of litigation and published only to persons with an
interest in the prospective proceeding such alleged defamatory statements were absolutely
privileged.
Darvish v. Gohari, 745 A.2d 1134 (Md. 2000).
In Darvish, the franchisee had expressly authorized the franchisor to obtain information
from his former employer for purposes of qualifying for franchise. Based on this consent and
that the franchisee and franchisor had a business relationship, the court held that the franchisee’s
former employer had a qualified privilege in the defamation suit filed by the franchisee.
The court held that the qualified privileged was not derived from the statutory employer-
employee relationship set forth in the Maryland Code, but was grounded in common law which
allows a qualified privilege to be claimed when the “defendant believes "there is information
that affects a sufficiently important interest of the recipient," and where the publication may be
made in response to a request.
Daywalt v. Montgomery Hosp., 573 A.2d 1116 (Pa. 1990).
The Supreme Court of Pennsylvania held that employers have an absolute privilege to
publish defamatory statements in notices of dismissal and warning letters. And, as such, the
publication to a secretary is incidental, and also privileged.
Mediaworks, Inc. v. Lasky, 1999 U.S. Dist. LEXIS 13680 (E.D. Pa. 1999).
The court held that, in defamation actions, actual harm has to be proven in order for there
to be liability. It was also held that failure to individually verify the contents of a statement does
not constitute actual malice.
49
Corporate Training Unlimited, Inc. v. Nat’l Broad. Co., Inc., 868 F. Supp. 501 (E.D.N.Y. 1994).
Under New York law, truth is an absolute defense to a civil defamation action. A libel
charge is defeated by substantially true statements. “Thus, so long as [a] statement is
substantially true, plaintiff’s defamation claim must fail as a matter of law.”. Citing the United
States Supreme Court’s decision in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), the court
finds constitutional protection for statements of opinion concerning matters of public concern
that do not contain elements provable as false. Thus, one party’s statement that the other
“screwed up my husband’s life, screwed up my life, screwed up out whole -- the whole family’s
life,” because it is opinion and notwithstanding the fact it was broadcast on a primetime news
program, is not actionable.
Compelled Self-Defamation
Cweklinsky v. Mobil Chem. Co., 297 F.3d 154 (2d Cir. 2002).
The Second Circuit certified for resolution to the Connecticut Supreme Court the
question whether Connecticut recognizes a cause of action for defamation based on an
employee’s compelled self-publication of the employer’s defamatory statements made by the
employer only to the employee. The decision collects the authorities recognizing and rejecting
such a claim.
Defilippo v. Balfour Beatty Constr., 814 A.2d 919 (Conn. Super. Ct. 2002).
The court held that plaintiff construction worker could pursue his claim of compelled
self-defamation because it was reasonably foreseeable that a construction worker who was
terminated for suspicion of being intoxicated at work would be required to tell subsequent
employers of the allegations. The court noted that the plaintiff’s supervisor violated company
policy by not administering a diagnostic test after smelling alcohol on plaintiff’s breath.
Defamation By Conduct
Gen. Motors Corp. v. Piskor, 340 A.2d 767 (Md. Ct. Spec. App. 1975).
The court recognized defamation by conduct where security guards blocked his exit from
the plant, grabbed him, surrounded him and shoved him into a guardhouse where he was kept for
almost half an hour. The court found that, in light of the guards constantly checking for thieving
at the plant, their conduct manifestly conveyed that plaintiff was thought to be a thief. See
50
“Libel or Slander: Defamation by Gestures or Acts”, 46 ALR 4th 403 (1986). Subsequent to
Piskor, the Maryland Court of Appeals in Gay v. William Hill Manor, 536 A.2d 690 (Md. 1988),
held that the mere act of an employer escorting an employee from the building after termination
of employment, without more, did not constitute a defamatory publication.
The court found that the defendants’ non-verbal representation that plaintiff had done
something disgraceful cannot fairly be characterized as non-defamatory as a matter of law.
Defendants had inactivated plaintiff’s access key. Plaintiff had alleged that this treatment was
ordinarily meted out only to attorneys who had engaged in criminal or unethical activity. The
court stated : “The defendant’s alleged non-verbal representation (by inactivating the plaintiff’s
access key and thus effectively locking her out of the office) that she had done something
disgraceful cannot fairly be characterized as non-defamatory as a matter of law.” On remand,
the trial court entered a summary judgment on the defamation count and plaintiff dismissed an
appeal of same.
Ivers v. Church of St. William, 1998 Minn. App. LEXIS 1397 (Minn. Ct. App. 1998).
Plaintiff alleged that defendant defamed him by deeds that “rise to the level of ‘dramatic
pantomime.’” The court of appeals rejected the claim as Minnesota does not recognize claims
based on defamation by conduct or dramatic pantomime. See Bolton v. Dept. of Human Servs.,
540 N.W.2d 523, 525–26 (Minn. 1995) (holding that the simple act of escorting plaintiff to the
exit door upon his termination with no words spoken did not constitute defamation.); Theisen v.
Covenant Med.l Ctr., Inc., 636 N.W.2d 74 (Iowa 2001) (same).
Rolsen v. Lazarus, Inc., 2000 Ohio App. LEXIS 4466 (Ohio App. 2000).
While Ohio in Uebelacker v. Cincom Systems, Inc., 608 N.E.2d 858 (Ohio 1988) has
recognized defamation by conduct, the court of appeals found that plaintiff’s being led through
the store by security did not compare to the “extreme, outrageous conduct of the company’s
employees in Uebelacker.”
Assault and Battery
Joyner v. Sibley Mem’l Hosp., 826 A.2d 362 (D.C. 2003).
The District of Columbia Court of Appeals, in affirming summary judgment for the
employer in claims related to employment discrimination, found inter alia that verbal reprimands
based upon reports that an employee directly violated hospital policy were based on sufficiently
51
legitimate, nondiscriminatory reasons. Further, a claim for assault and battery related to a
manager’s slamming the door on the hand of the employee as she attempted to lead the office is
not material to discrimination claims where there is “nothing in the record to establish that the
assault and battery, if it did occur, was the product of discrimination.” However, the appellate
court did find that the trial court erred in dismissing the employee’s assault and battery claims
related to this incident, before the Department of Employment Services had completed its
disposition.
Johnson v. United States, 1987 WL 15690 (D.D.C. July 31, 1987).
The court held: “Under the District of Columbia law of respondeat superior, an employer
may be held vicariously liable for the intentional torts of his employee only where the
employee’s tortious act grew out [of] a foreseeable job-related controversy and was motivated at
least in part by a purpose to serve his principal.” See also Int’l Distrib. Corp. v. Am. Dist. Tel.
Co., 569 F.2d 136 (D.C. Cir. 1977); Lyon v. Carey, 533 F.2d 649 (D.C. Cir. 1976).
Weems v. Federated Mut. Ins. Co., 220 F. Supp. 2d 979 (N.D. Iowa 2002).
The court found that whether an assault can be imputed to the employer under the
doctrine of respondent superior is “ordinarily a jury question.” In the case before the court, the
court rejected a per se rule that intentional torts of an agent cannot be imputed to the employer,
holding that “the inquiry in each case is a relatively fact-intensive one requiring a careful
analysis of the scope of the alleged conduct in light of that reasonably foreseen by the
employer.” The alleged assault arose out of a confrontation between a superior and a marketing
representative when the superior discovered that the subordinate was surreptitiously taping their
conversation. The court held it was reasonably foreseeable that “the fulfillment of [the
superior’s] duties would encompass potentially heated interactions with marketing
representatives felt to be underperforming”. Accordingly, the court held that it was for the jury
to determine whether the superior was acting within the scope of his employment.
Intentional Infliction of Emotional Distress
Larijani v. Georgetown Univ., 791 A.2d 41 (D.C. App. 2002).
The majority found that allegations that defendants deliberately set out to torment
plaintiff and continued for a long time by setting up noise making contraption outside the door
where she worked survived a motion to dismiss her intentional infliction of emotional distress
claim. The concurring judge found it to be a “very, very close case.” The dissenting judge
found that the result “cheapens the currency of the tort she alleged…”
52
Martinez v. Cole Sewell Corp., 233 F. Supp. 2d 1097 (N.D. Iowa 2002).
The court found that the Iowa Civil Rights Act preempted a claim of intentional infliction
of emotional distress. See also Greenland v. Fairtron Corp., 500 N.W.2d 36 (Iowa 1993) (The
Iowa sex discrimination statute preempted a claim for IIED).
Jiminez v. Thompson Steel Co., Inc., 264 F. Supp. 2d 693 (N.D. Ill. 2003).
The court addressed whether claims for intentional and negligent infliction of emotional
distress are preempted by the Illinois Human Rights Act. The court held that whether a tort
claim is preempted depends upon whether the claim is inextricably linked to a civil rights
violation such that there is no independent basis for the action apart from the act itself.
Thompson v. Jasas Corp., 212 F. Supp. 2d 21 (D.D.C. 2002).
The court held that, as the District of Columbia Code does not provide a statute of
limitations for a claim of intentional infliction of emotional distress, the three-year residual
limitation period applied so long as the claim is not “intertwined with any of the causes of action
for which a period of limitations is specifically provided…” Rendall-Speranza v. Nassim, 107
F.3d 913, 920 (D.C. Cir. 1997) As plaintiff’s IIED claim was “intertwined with” her hostile
work environment claim under the D.C. Human Rights Act which had a one-year limitations
period, plaintiff’s claim was restricted to incidents occurring within the one year preceding the
filing of the complaint.
Carter v. Am. Online, 208 F. Supp. 2d 1271 (M.D. Fla. 2001).
The court held that even assuming sexual misconduct met Florida’s high standard for
stating a prima facie case of intentional infliction of emotional distress, AOL could not be
vicariously liable as the conduct was not shown to be related to the harasser’s job and motivated
by a desire to serve his employer.
Williams v. Fed. Express, 211 F. Supp. 2d 1257 (D. Or. 2002).
While the court recognized that the employer-employee relationship comprised a greater
obligation to refrain from inflicting mental distress than the obligation that exists between
strangers, there was no evidence that defendant intended or desired to inflict emotional distress,
much less that the reprimand, suspensions, and ultimate termination constituted an extraordinary
transgression of the bounds of socially tolerable conduct.
53
Lockamy v. Truesdale, 182 F. Supp. 2d 26 (D.D.C. 2001).
The court held that “in an employment context, the proof required to support a claim for
intentional infliction of emotional distress is particularly demanding.” See also Rogala v.
District of Columbia, 161 F.3d 44, 57-58 (D.C. Cir. 1998); Homan v. Goyal, 711 A.2d 812, 818
(D.C. 1998).
Orell v. UMass Mem’l Med. Ctr., 203 F. Supp. 2d 52 (D. Mass. 2002).
Defendants’ alleged failure to make reasonable accommodations for plaintiff’s disability

“does not satisfy the stringent standard of a claim for intentional infliction of emotional distress.”
Gathers cases holding that failure to accommodate a disability does not support an IIED claim.
Biggs v. Aldi, Inc., 218 F. Supp. 2d 1260 (D. Kan. 2002).
The court, recognizing that the Kansas courts have set a very high standard for an IIED
claim and “have been reluctant to extend the cause of action to discrimination…claims,” Boe v.
Allied Signal, Inc., 131 F. Supp. 2d 1197, 1205 (D. Kan. 2001), the court rejected an IIED claim
based on defendant’s alleged termination of plaintiff due to race, saying that the Kansas courts
have construed the term “outrageous” “so narrowly in the discrimination context (perhaps
because other avenues of relief are available for victims of discrimination)…”
Arbabi v. Fred Meyers, Inc., 205 F. Supp. 2d 462 (D. Md. 2002).
The court, in rejecting an IIED claim based on harassment, stated: “As inappropriate and
repulsive as workplace harassment is, such execrable behavior almost never rises to the level of
outrageous, and almost never results in such severely debilitating emotional trauma, as to reach
the high threshold invariably applicable to a claim of intentional infliction of emotional distress
under Maryland law.” (cites Maryland cases rejecting IIED claims). See also Hanson v.
Hancock County Mem. Hosp., 938 F. Supp. 1419, 1141-42 (N.D. Iowa 1996) (collects over 15
Iowa cases where conduct found insufficiently outrageous as a matter of law and noting that
“[f]ew cases can be located where an Iowa court actually held the conduct alleged was
sufficiently outrageous”).
Walton v. Johnson & Johnson Servs., Inc., 203 F. Supp. 2d 1312 (M.D. Fla. 2002).
The court held that the employer was not vicariously liable for the employee’s intentional
and violent acts (e.g. rape) because there was no evidence that the conduct was in furtherance of
the business interests of the employer.
54
Leone v. New England Commc’ns, 2002 Conn. Super. LEXIS 1361 (Conn. Super. Ct. 2002).
In light of Perodeau v City of Hartford, 792 A.2d 752 (Conn. 2002), the court struck a
negligent infliction of emotional distress claim as it did not arise in the course of termination of
the plaintiff-employee who continued to be employed by the defendant. The court denied the
motion to strike an IIED claim in light of the alleged facts and the public policy prohibiting
discrimination in the workplace. The complaint alleged that the company’s owners referred to
the plaintiff, using racial slurs about his Italian ancestry, placed sexually offensive comments and
pictures on his computer and made comments about his genitalia, sexual performance,
homosexuality, and the like.
Negligent Infliction of Emotional Distress
Snyder v. Med. Serv. Corp. of E. Wash., 35 P.3d 1158 (Wash. 2001).
In finding that some jurisdictions have refused to adopt or adopted in a extremely narrow
context the tort of negligent infliction of emotional distress stemming from events in the
workplace. Washington, however, does not impose a duty of care on employers to avoid
negligent infliction of emotional distress in regard to workplace tiffs, absent a statute or public
policy to the contrary, even in a case such as this where the employer jabbed a female employee
in the chest and publicly accused her of insubordination. See Antalis v. Ohio Dep’t of
Commerce, 589 N.E.2d 429, 431 (Ohio Ct. App. 1990) (Ohio courts do not recognize a separate
cause of action for negligent infliction of emotional distress in employment situations.); Herman
v. United Bhd. of Carpenters & Joiners, 60 F.3d 1375 (9th Cir. 1995) (Nevada law precludes
emotional distress claims in the employment context.); Tischmann v. ITT/Sheraton Corp., 882 F.
Supp. 1358 (S.D.N.Y. 1995) (New York law does not permit a former employee to utilize claims
for intentional or negligent infliction of emotional distress to avoid the employment at-will
doctrine.); but see Armstrong v. Paoli Mem’l Hosp., 633 A.2d 605 (Pa. Super. Ct. 1993)
(Pennsylvania recognized negligent infliction of emotional distress only where the defendant has
a contractual or fiduciary duty to the plaintiff, a bystander); Parsons v. United Techs. Corp., 700
A.2d 655, 667 (Conn. 1997) (“[N]egligent infliction of emotional distress in the employment
context arises only where it is ‘based upon unreasonable conduct of the defendant in the
termination process.’” (quoting Morris v. Hartford Courant Co., 513 A.2d 66 (Conn. 1986)).
Marrs v Marriott Corp., 830 F. Supp. 274 (D. Md. 1992).
The court granted summary judgment for the employer because Maryland does not
recognize a claim for negligent infliction of emotional distress.
55
Kun v. Finnegan, Henderson, Farabow, Garrett & Dunner, 949 F. Supp. 13 (D.D.C. 1996).
The court dismissed employee’s claim for negligent infliction of emotional distress
because employee did not allege direct physical injury or presence in the zone of physical
danger.
Miller v. Bristol-Myers Squibb Co., 121 F. Supp. 2d 831 (D. Md. 2000).
Maryland does not recognize an independent claim for negligent infliction of emotional
distress. Lapides v. Trabbic, 758 A.2d 1114, 1122 (Md. 2000); Carson v. Giant Food, Inc., 187
F. Supp. 2d 462, 482 (D. Md. 2002).
Gupta v. City of Norwalk, 221 F. Supp. 2d 282 (D. Conn. 2002).
The court, applying Perodeau v. City of Hartford, 792 A.2d 752 (Conn. 2002), held that a
claim of negligent infliction of emotional distress may be brought only where the plaintiff alleges
she suffered emotional distress during the termination process and not the ongoing employment
relationship. The court recognized that a constructive discharge would satisfy the termination
element of the claim.
Negligence
Doe v. Pharmacia, 122 Fed. Appx. 20 (4th Cir. 2005).
The Court of Appeals for the Fourth Circuit held that an employer did not have any duty
to the wife of an employee whom the employer negligently tested and negligently informed that
he (the husband) was not HIV positive.
MacDonald v. Hinton, 836 N.E. 2d 893 (Ill. App. Ct. 2005).
The court held that for a claim of negligence for an employer’s failure to warn an
employee “of an unreasonable risk of harm involved in the agency” to be sustainable, the risk
must arise from the particular nature of the employment.
Stanley v. McCarver, 92 P.3d 849 (Ariz. 2004).
The Supreme Court of Arizona held that defendant doctor who was hired by a private
company to do a health screening of a new employee had a duty to report abnormalities
56
discovered during the screening to the employee. The Court found that although the doctor was
a contractor of the company and not the patient, and therefore no traditional doctor-patient
relationship existed, he placed himself in a unique position to prevent future harm and therefore
had a duty to report to the employee any findings that could require medical attention.
D. Houston, Inc. v. Love, 92 S.W.3d 450 (Tex. 2002).
The Texas Supreme Court held that the Dram Shop Act did not bar independent
contractor-dancer’s claim of negligence where the night club exercised control over the dancer’s
decision to consume sufficient alcohol to become intoxicated and dancer was seriously injured in
an auto accident while driving home from work.
Harris v. Best Bus. Prods., Inc., 651 N.W.2d 875 (S.D. 2002).
The court held that the employer could be sued for negligence in providing a company
van to an employee for deliveries, where the van had not been properly maintained even though
the employee’s daughter, a trespasser, was driving the van without the company’s permission at
the time of the accident.
Holdampf v. A.C. &S., Inc. 840 N.E.2d 115 (N.Y. 2005) (In re New York City Asbestos Litig.).
The New York Court of Appeals granted summary judgment to the defendant finding that
the defendant company did not owe a duty of care to the wife of their former employee who
claimed to have contracted mesothelioma from laundering her husband’s clothing.
Interim Pers. of Cent. Va., Inc. v. Messer, 559 S.E.2d 704 (Va. 2002).
The Virginia Supreme Court held that plaintiff had not established as a matter of law that
defendant had been negligent in hiring a driver with a propensity for drunk and reckless driving.
The court found that because the deriver concealed information from the defendant when he was
hired the defendant was not reckless in its hiring practices, further, up until the time the driver
injured the plaintiff, he had been a model employee and thus given defendant no reason to
suspect that he was a danger.
Tricoski v. Lab. Corp. of Am., 216 F. Supp. 2d 444 (E.D. Pa. 2002).
Plaintiff’s employer, pursuant to its random drug testing policy, required that plaintiff be
tested by the defendant lab. Based on an erroneous test result finding races of marijuana,
plaintiff was terminated. Plaintiff sued the lab for negligence. Finding no Pennsylvania law
directly on point, the court concluded that the Pennsylvania Supreme Court would not recognize
57
a duty of care of a testing facility to employees drug-tested at their employer’s behest. The
decision collects authorities on the issue.
Mission Petro. Carriers, Inc. v. Solomon, 106 S.W.3d 705 (Tex. 2003).
The Texas Supreme Court declined to create a duty requiring employers to exercise
ordinary care in collecting employee’s specimens for drug testing. The court found that
employers who conduct in-house urine specimen collection under the Department of
Transportation regulations for random drug-testing of employees owe no duty of care to the
employees to conduct the drug test with reasonable care.
Sharpe v. St. Luke’s Hosp., 821 A.3d 1215 (Pa. 2003).
The Supreme Court of Pennsylvania reversed the lower court decisions to grant summary
judgment against a plaintiff who was terminated after testing positive for cocaine pursuant to a
drug test that was allegedly misidentified and mishandled. The lower courts had held that the
hospital administering the test owed no duty of care to the plaintiff, but the highest state court
held that a hospital owes a duty of reasonable care to an employee of a third party in the handling
of a urine specimen in drug testing related to employment.
Brown v. Argenbright Sec., Inc., 782 A.2d 752 (D.C. 2001).
A child was stopped by a security guard who accused the child of shoplifting. The child
claimed that in the course of the guard’s search, the guard touched her in an improper manner.
The child also claimed that the guard took her picture and posted it at the store as a heads-up to
the store’s employees whenever this girl should come back to the store. Her friends, the girl
asserts, teased her when they saw her picture. The girl and her mother sue for negligence and
negligent infliction of emotional distress. The lower court granted summary judgment to the
defendant on all counts. The appellate court, however, reversed in part. The court found that an
issue of fact remained as to whether the guard actually improperly touched the child, but that
summary judgment was appropriate as to the posting of the picture as the allegation was based
on hearsay and not strong enough to overcome a motion for summary judgment.
Champion Billiards Cafe, Inc. v. Hall, 685 A.2d 901 (Md. Ct. Spec. App. 1996), cert. denied,
690 A.2d 523 (Md. 1997).
The Court of Special Appeals of Maryland held that an employer had a duty of care to its
employee when undertaking to forward an application for insurance on behalf of its employee,
based upon the “intimate nexus between the parties” that existed because of, in this particular
case, the employment relationship, the fact that the act of forwarding the application was directly
related to that relationship, the reliance upon the agreement of the employee, the risk of
58
monetary loss in the event of a failure to complete this act, and the fact that the employer knew
of this reliance and this risk. The employer breached this duty and therefore owed damages to
the employee.
Negligent Hiring
Shecter v. Merchants Home Delivery, Inc., 2006 D.C. App. LEXIS 30 (D.C. 2006).
Judge Schwelb wrote the opinion reversing the trial court’s granting of judgment as a
matter of law to the defendant. The plaintiff brought suit against Circuit City and Merchants
Home Delivery for items which were stolen from her house when employees of the latter
delivered goods plaintiff purchased from Circuit City pursuant to a delivery contract between the
two defendants. The trial court granted judgment as a matter of law after determining that the
two men were independent contractors and therefore not employees of Circuit City, and that they
were not acting within the scope of their employment when they stole form plaintiff so
Merchants was not liable for the theft.
The D.C. Court of Appeals reversed the district court’s grant of JMOL holding that
because Circuit City had a significant amount of control over the nature of the work done by the
delivery men a reasonable jury may have found that they were employees of Circuit City, not
independent contractors. Further, the Court found that plaintiff had offered sufficient evidence
of negligent hiring, training and supervision by Circuit City. The Court remanded the case to
allow a jury to determine the nature of the relationship between Circuit City and the delivery
men, and to determine if Circuit City was negligent in the management of its delivery personnel.
Holston v. Sports Auth., Inc., 136 F. Supp. 2d 1319 (N.D. Ga. 2000), aff’d without op., 251 F.3d
164 (11th Cir. 2001).
The court held that a claim for negligent hiring or retention based upon racial
discrimination fails to state a claim under Georgia law, noting that negligence claims can arise
only from common law duties, and there is no common law duty to prevent discrimination in
employment. See also Alford v. COSMYL Inc., 209 F. Supp. 2d 1361, 1372 (M.D. Ga. 2002).
The D.C. Court of Appeals reversed the district court’s grant of judgment as a matter of
law. It held that because Circuit City had a significant amount of control over the nature of the
work done by the delivery men a reasonable jury may have found that they were employees of
Circuit City, not independent contractors. Further, the court found that plaintiff had offered
sufficient evidence of negligent hiring, training and supervision by Circuit City. The court
remanded the case to allow a jury to determine the nature of the relationship between Circuit
City and the delivery men, and to determine if Circuit City was negligent in the management of
its delivery personnel.
59
Wise v. Complete Staffing Servs., Inc., 56 S.W.3d 900 (Tex. App. 2001).
Plaintiff was attacked and severely injured while working at a bakery by a temporary
employee performing unskilled manual labor who had been provided to the bakery by a
temporary staffing agency. Plaintiff sued the agency for negligent hiring the attacker as it failed
to sufficiently investigate his criminal background. The court concluded that the staffing agency
had no duty to check the criminal background of its employees unless it was directly related to
the duties of the job at hand. But, as the agency had undertaken to do a background check and
allegedly performed it negligently, summary judgment on that claim was reversed.
Negligent Retention
Se. Apartments Mgmt., Inc. v. Jackman, 513 S.E.2d 395 (Va. 1999).
The Virginia Supreme Court recognized an independent tort for negligent retention,
stating that the “cause of action is based on the principle that an employer…is subject to liability
for harm resulting from employer’s negligence in retaining a dangerous employee who [sic] the
employer knew or should have known was dangerous and likely to harm [others].” The
employer cannot be liable unless the employer’s employee has committed a cognizable wrong
against the plaintiff. In Sutphin v. United American Ins. Co., 154 F. Supp. 2d 906 (W.D. Va.
2000), the court dismissed a negligent retention claim because the conduct of defendant’s
independent contractor, who allegedly subjected plaintiff to sex harassment, was not actionable
in its own right under Virginia or federal law. Title VII does not cover independent contractors;
Virginia does not provide a separate cause of action for sex harassment; and the contractor did
not assault or batter plaintiff, as was the cause in Jackman. The Sutphin court distinguished Call
v. Shaw Jewelers, Inc., 1999 U.S. Dist. LEXIS 636 (W.D. Va. 1999), aff’d, 2002 WL 429710
(4th Cir. April 21, 2000) as the employee’s conduct in Call was subject to remedial action under
Title VII. The Sutphin court noted that it was not deciding whether an underlying wrong that is
actionable only under federal law can support a state law negligent retention claim.
Bryant v. Better Bus. Bureau of Greater Md., 923 F. Supp. 720 (D. Md. 1996).
The court rejected a claim of negligent hiring based on verbal abuse plaintiff suffered
where the abuse was not a cognizable injury under the common law, but rather was only
cognizable, if at all, under federal laws barring harassment in the workplace.
60
Negligent Supervision
Sabb v. S.C. State Univ., 567 S.E.2d 231 (S.C. 2002).
While the majority decided a worker’s compensation exclusivity issue, the dissent
questioned whether an employee should ever be allowed to sue her employer on a theory of
negligent retention or supervision for the acts of a supervisory employee.
McDaniel v. Fulton County Sch. Dist., 233 F. Supp. 2d 1365 (N.D. Ga. 2002).
Among other things, the Northern District of Georgia held that a claim for negligent
supervision and retention could not be sustained under Georgia law where a plaintiff could not
show physical loss, pecuniary loss, or malicious, willful, and wanton action.
Negligent Discharge
Huegerich v. IBP, Inc., 547 N.W.2d 216 (Iowa 1996).
The Iowa Supreme Court rejected a negligent discharge claim. The plaintiff alleged that
IBP negligently administered its drug policy by failing to provide an orientation program or
advising that an employee could be terminated if caught in possession of look-alike drugs. The
court’s decision rested on the belief that imposing “a duty of care upon an employer when
discharging an employee…would radically alter” the doctrine of employment at-will.
Negligent Investigation
Theisen v. Covenant Med. Ctr, Inc., 636 N.W.2d 74 (Iowa 2001).
Plaintiff was discharged by defendant because, after he was suspected of making an

obscene phone call to another employee, he refused to submit to voice print analysis to confirm
or refute the accusation. The Iowa Supreme Court rejected, as a matter of law, plaintiff’s claim
that defendant owed him a duty of care to conduct a reasonable, non-negligent investigation prior
to firing him. The court, in rejecting such a claim, stated: “To allow such a claim would not only
contravene this court’s denial of a negligent discharge claim in Huegerich v. IBP, Inc., 547
N.W.2d 216 (Iowa 1996), but it would also create an exception swallowing the rule of at-will
employment.” See also Johnson v. Delchamps, Inc., 897 F.2d 808, 811 (5th Cir. 1990) (holding
that an employer could discharge an at-will employee “for a reason based on incorrect
61
information, even if that information was carelessly gathered”); Morris v. Hartford Courant Co.,
513 A.2d 66, 68 (1986) (rejecting wrongful discharge claim based on negligent investigation of
criminal matter as public policy exception to doctrine of at-will employment).
Fraud
Tillman v. Comelot, 408 F.3d 1300 (10th Cir. 2005).
The Court of Appeals for the Tenth Circuit held that an employer lacks an insurable
interest in a “rank and file” employee’s life. Unbeknownst to the employees, the employer
purchased these policies and tried to collect on the policy. The Tenth Circuit held that such an
arrangement may be possible if the employee was a “key” person and the employer had
substantially invested in this person as a member of the company, but is not acceptable for the
typical employee.
Ballow Brasted O’Brien & Rusin P.C. v. Logan, 435 F.3d 235 (2d Cir. 2006)
The court held that because defendant attorney waited four years to challenge the fee-
splitting agreement with the plaintiff, and because the defendant offered no evidence that he was
fraudulently induced into the agreement New York state contract law required that the agreement
be enforced.
Cohn v. Knowledge Connections, Inc., 585 S.E.2d 578 (Va. 2003).
Plaintiff was offered a job and expected to be assigned to the employer’s Pentagon office
because (she claimed) the president of the company told her that no one on the existing staff was
qualified for the position. She was subsequently assigned to a different office when a male
employee with more experience was assigned to the Pentagon office because a Pentagon
employee preferred working with men. Employee then filed suit for constructive and actual
fraud in the offer of employment. The alleged concealment of gender bias and the alleged
concealment of the male employees qualifications for placement in the Pentagon office were
each, in turn deemed to be insufficient as the basis of a fraud claim. The gender bias was not
something that the president of the company intended to conceal, so it was not actual fraud. The
qualifications of the other worker were voiced as an opinion by the president of the company and
were also not sufficient for an actual fraud claim. The constructive fraud claim failed because
the misrepresentation of the male employee’s qualifications was not the proximate cause of her
failure to be assigned to the Pentagon office.
Ruffing v. Union Carbide Corp., 2003 N.Y. App. Div. LEXIS 9683 (N.Y. App. Div. 2003).
62
A child born with birth defects and her mother brought a tort action against the mother’s
employer and chemical suppliers. The plaintiffs moved to amend their complaint to add fraud
based causes of action. The Supreme Court, Appellate Division, Second Department of New
York determined that the daughter, who was in utero when the alleged fraud occurred, could
amend the complaint to include causes of action for fraudulent misrepresentation, constructive
fraud, fraudulent concealment, and negligent misrepresentation. The motion to amend was
denied as to the mother’s claims.
During the mother’s pregnancy IBM, her employer, assured her that she was in a safe
working environment even though she worked with chemicals. The claims were brought when
the daughter was twenty-two years old. The mother was denied the ability to assert fraud claims
because to do so would permit circumventing statute of limitations to her negligence cause of
action. The daughter could allege fraud claims even though the events that gave rise to the fraud
happened to her mother (a third party). The court held “that a surviving child injured in utero as
the result of a fraudulent statement relied upon by his or her mother does, in fact, possess a valid
fraud cause of action.”
Walsh v. Alarm Sec. Group, Inc., 230 F. Supp. 2d 623 (E.D. Pa. 2002).
The court denied the employer’s summary judgment motion on the prospective
employee’s fraudulent misrepresentation claim under Pennsylvania law, finding that there was
sufficient evidence that the employer misrepresented that it had acquired a sufficient number of
existing businesses to open the Philadelphia branch office in order to assure that there would be a
branch manager.
Allstate Ins. Co. v. Eskridge, 823 So.2d 1254 (Ala. 2001).
A fractured Alabama Supreme Court held that plaintiff failed to establish the reasonable
reliance element of a fraud claim, concluding that plaintiff could not have reasonably relied on
the employer’s statement that he could “just come back to work” to mean that he was authorized
to take sick leave of an indefinite and perhaps lengthy period and then return without any
limitation on the time he would be away from work and without regard to the condition of his
health when he returned.
Wade v. Chase Manhattan Mortgage Corp., 994 F. Supp. 1369 (N.D. Ala. 1997).
The court held that a promise by an employer to maintain a permanent office in another
location made to induce employees to change positions was not fraud because the statement was
simply an opinion of future plans. Additionally, the court held that in Alabama, an at-will
employee “can be discharged for any reason, regardless of whether the employer’s motive is
reasonable, unreasonable...or even illegal.” See Forbus v. Sears Roebuck & Co., 958 F.2d 1036
(11th Cir. 1992).
63
Negligent Misrepresentation
Griesi v. Atlantic Gen. Hosp. Corp., 756 A.2d 548 (Md. 2000).
The Maryland Court of Appeals held that a prima facie case of negligent
misrepresentation had been pled by a job applicant for a managerial position in defendant’s
physical therapy department, where the applicant had alleged that the defendant’s CEO had
negligently misrepresented material facts during the course of pre-employment negotiations upon
which he relied to his ultimate detriment. Plaintiff alleged that defendant’s CEO communicated
an oral offer of employment at a specific salary with a date certain for commencement of
employment, which the CEO represented had been approved by the Chairman of the Board.
Plaintiff had received job offers from other employers, and had advised defendant that it was
weighing its offer against the other offers. After doing so, plaintiff accepted the offer, only to
later discover that the CEO had not cleared the hiring of the plaintiff for the position. When
plaintiff was not hired, the suit was filed. See also Lubore v. RPM Assocs., Inc., 674 A.2d 547
(Md. 1996) (allowing claim of negligent misrepresentation arising out of pre-employment
negotiations to proceed).
Armstrong v. Am. Home Shield Corp., 333 F.3d 566 (5th Cir. 2003).
The Court of Appeals for the Fifth Circuit affirmed a district court decision that granted
summary judgment to a defendant employer, holding that an employer was not required to pay
bonuses to employees beyond “actual” costs savings generated as articulated in the contract, that
asking the employer to enforce an existing contract provision was not a proposed contractual
change that the employer “had not previously adopted” as was required by the contract provision
to impose a duty to pay a bonus, that the employees could have discovered the profitability of the
corporate division through reasonable care and that therefore the discovery rule tolling the statute
of limitations for negligent representation, and that the merger clauses written into their
employment contracts were unequivocal disclaimers of reliance, thereby vitiating any fraud
claim that the employees may have had.
Privacy
Baughman v. Wal-Mart Stores, Inc., 592 S.E.2d 824 (W. Va. 2003).
The West Virginia Supreme Court rejected plaintiff’s claim for invasion of privacy
predicated on Wal-Mart’s requirement that job applicants provide a urine sample for drug
testing. Even though the court had previously held in Twigg v. Hercules Corp., 406 S.E.2d 52
64
(W. Va. 1990), that requiring incumbent employees to submit to drug-testing was contrary to
public policy, the court in Baughman held that “in the pre-employment context…a person clearly
has a lower expectation of privacy.” The court went on to further state that “employers regularly
perform pre-employment background checks, seek references, and require pre-employment
medical examinations, etc., that are far more intrusive than would be considered tolerable for
existing employees without special circumstances. Giving a urine sample is a standard
component of a medical examination…”
Garrity v. John Hancock Mut. Life Ins. Co., 2002 U.S. Dist. LEXIS 8343 (D. Mass. 2002).
The court found no actionable invasion of privacy where the employer accessed the
plaintiff’s office computers, searching for sexually explicit emails from internet joke sites and
other third parties, in the course of an investigation triggered by a complaint from a fellow
employee. The employer had an email policy which explicitly stated that all information stored,
transmitted, received or contained in the company’s email system was the property of the
company, and that there may be business or legal situations that necessitate the company’s
review of email messages and that it reserved the right to access all emails. The court found that
there was no reasonable expectation that employee’s emails were private and even if so, the
employer’s legitimate business interest in protecting its employees from workplace harassment
“would likely triumph plaintiff’s privacy interest.”
Am. Fed’n of State, County, & Mun. Employees v. Grand Rapids Pub. Utils. Comm’n, 645
N.W.2d 470 (Minn. Ct. App. 2002).
The court of appeals found that defendant had not violated the Data Practices Act when it
released employee’s social security numbers in conjunction with a federally-mandated drug and
alcohol testing program on the ground that the release was specifically authorized by federal law,
i.e., the Omnibus Transportation Employee Testing Act.
Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550 (Minn. 2003).
The Minnesota Supreme Court held that an employer’s faxing the names and social
security numbers of over 200 employees did not constitute publication “substantially certain to
become public, and the employees merely speculated that the information was still being
shared.” As such, this act by the employer did not constitute the tort of publicity of private facts.
TBG Ins. Servs. Corp. v. Superior Court of L.A., 2002 Cal. App. LEXIS 1839 (Cal. Ct. App.
2002).
The court, during discovery in a wrongful termination case, granted motion to compel
production of former employee’s home computer, which former employer had provided for said
65
employee. Former employee resisted on privacy grounds, emanating from the California
Constitution. The court found that waiver signed by employee precluded any reasonable
expectation of privacy and that production was not such a serious invasion of privacy such that it
could overcome the waiver and the need for information regarding employee’s access while at
work to sexually explicit websites.
Allstate Ins. Co. v. Ginsberg, 863 So.2d 156 (Fla. 2003).
The Florida Supreme Court held that a claim of unwelcome sexual conduct did not state a
cause of action for the tort of invasion of privacy. The tort of invasion of privacy includes
“physically of electronically intruding into one’s private quarters.” The court held that this
definition referred to a place and not to a body part. “This is a tort in which the focus is the right
of a private person to be free from public gaze.”
Tortious Interference with Contractual Relations
Futrell v. Dep’t of Labor Fed. Credit Union, 816 A.2d 793 (D.C. 2003).
In an opinion by Judge Washington, the District of Columbia Court of Appeals affirmed

the trial court decision to grant summary judgment to the defendant-employer on all claims
related to her demotion and eventual termination. The court found that where an African-
American employee was, by her own admission, unable to “perform her duties as a Manger at an
acceptable level,” where the employer has already been “taken to task” by its parent agency
specifically for “failing to decisively address problems” with the Manager, and where the
employee could present no evidence but conclusory statements that she was replaced by younger
Caucasian women, there is no pretext for discrimination under the District of Columbia Human
Rights Act. The court also found that while an employee handbook could raise a jury question as
to whether an implied employment contract existed even in an expressly at-will relationship such
as the one in this case, the Employee Handbook here distinguished between “employee” and
“manager” and therefore did not apply. Further, when a Guidebook “clearly states in boldfaced
print that it ‘does not constitute an expressed or implied employee contract’,” it cannot be read to
imply an employee contract. Given the absence of an express or implied contract, there could be
no cognizable claim for tortious interference with employment rights. Intentional infliction of
emotional distress was also ruled out as the “mental anguish” averred by the employee was not
sufficient to meet the severity standard of the intentional infliction of emotional distress tort.
Mathis v. Liu, 276 F.3d 1027 (8th Cir. 2002).
Plaintiff had an at-will contract with the defendant to solicit orders for its products from
retailers. Plaintiff received a 5% commission. Plaintiff entered into a contract with another
66
individual to act as his sub-agent to solicit orders and to be compensated with a 1% commission.
This contract specified that it was terminable by either party on six months written notice.
Defendant persuaded the sub-agent to breach the contract with plaintiff without providing the six
months notice and subsequently contracted with the sub-agent to solicit the orders. Two days
after the sub-agent terminated his contract without the required notice, defendant terminated its
at-will contract with plaintiff. The court found a tortious interference with contract claim because
plaintiff’s contract with the sub-agent was not at-will, but held plaintiff could not establish lost
profits damages as plaintiff’s relationship with defendant was at-will.
Storey v. Patient First Corp., 207 F. Supp. 2d 431 (E.D. Va. 2002).
The court denied a motion to dismiss a tortious interference claim where the plaintiff’s
complaint alleged “the individual defendants were acting in their personal capacity, outside the
scope of their employment, and for their own reasons (unrelated to the legitimate interests of
Patient First).” The court went on to say that the complaint, fairly read, alleged that the
individual defendants “were motivated by an intent to protect themselves from liability of the
sort that might ensue incident to Storey’s disclosures respecting the corporate conduct of Patient
First.” Thus, the individual defendants were acting outside the scope of their employment such
that they could be viewed as separate persons (apart from Patient First) for purposes of applying
the tortious interference claim. See also Wuchenick v. Shenandoah Memorial Hosp., Inc., 215
F.3d 1324 (4th Cir. 2000) (unpublished); Warner v. Buck Creek Nursery, Inc., 149 F. Supp. 2d
246 (W.D. Va. 2001).
Judge Hogan delivered the opinion of the court. Unless there is a clear showing of
evidence, the wrongful discharge of an employee in violation of public policy is a question of
fact and often difficult to pass summary judgment on. Additionally, an at-will employee can
claim a tortious interference with a contract as a claim for improper termination as an at-will
employee does not operate under an established employment contract.
Hegy v. Cmty. Counseling Ctr., 158 F. Supp. 2d 892 (D. Ill. 2001)
Plaintiff was the 78-year-old executive director of the Center and had been employed by
the Center for 32 years. Plaintiff was an at-will employee. Plaintiff alleged that she was
discharged in violation of the by-laws which she construed to require the Board’s approval of the
discharge of the executive director. Plaintiff further alleged that her replacement was less
qualified for the position of executive director than she was. The court found that an at-will
employee can have a reasonable expectation of continued employment sufficient to sustain an
action by tortious interference with employment. The court found that, based on the plaintiff’s
allegation regarding the violation of the by-laws, plaintiff had sufficiently demonstrated that the
corporate officers acted outside the scope of their corporate authority. And, the plaintiff’s
allegation that her replacement was less qualified than her was sufficient to demonstrate that the
defendants acted contrary to the best interests of the corporation. Accordingly, the court denied
defendant’s motion to dismiss.
67
Gunthorpe v. DaimlerChrysler Corp., 205 F. Supp. 2d 820 (N.D. Ohio 2002).
The court, recognizing that the plaintiff could maintain a tortious interference claim
against an employee of a party to the relationship at issue, that is, an employee of the defendant
employer, if plaintiff can demonstrate that the employee acted solely in his/her individual
capacity and benefited from the alleged interference, granted summary judgment as there was no
evidence the employee-supervisor in this case personally benefited from the actions alleged.
Beard v. Edmondson & Gallagher, 790 A.2d 541 (D.C. 2002).
In a non-employment case, the D.C. Court of Appeals discussed when a cause of action
accrues and the continuing tort doctrine. Judge Ruiz, in a concurring opinion, stated:
Not all continuing violations are the same, however. Where, unlike here, the
nature of the violation is such that to claim redress it is necessary to prove
sustained conduct, or a pattern and practice, the time when the claim comes into
existence can be less than clear. The usual concern about staleness ‘disappears’ so
long as some act that is part of such a continuing violation occurs within the
limitations period. Certain discrimination claims are examples. (practice of racial
steering under the Fair Housing Act, 42 U.S.C. §§ 3604, 3612(a)); see Morgan v.
Nat’l R.R. Passenger Corp., 232 F.3d 1008, 1017 (9th Cir. 2000) cert. granted,
533 U.S. 927 (2001) (employment discrimination based on hostile working
environment under Title VII, 42 U.S.C. § 2000e-5(e)). Moreover, there are policy
reasons grounded in the broad remedial purpose of civil rights statutes giving rise
to such claims as well as practical considerations in an ongoing relationship that
warrant an approach that comports with the reality of a continuing practice of
discrimination. These types of claims are not implicated here and, therefore, are
not addressed by the court's opinion in this case.
Michelin Tire Corp. v. Goff, 864 So. 2d 1068 (Ala. Civ. App. 2002).
Mr. Goff was employed as an electrician at Michelin. When he arrived, he was given a
handbook which stated therein that employees would only be fired for good cause and then in
accordance with the procedures laid out in the handbook. Mr. Goff relied on these promises
throughout his employment and considered them to constitute a unilateral contract. When fired
for sleeping on the job, the veracity of thereof notwithstanding, Mr. Goff brought this action.
The court found that the handbook did not create a unilateral contract whereby Mr. Goff could
only be terminated for cause. However, Mr. Goff scored a victory by convincing the court that
his supervisor acted beyond the scope of employment and with malice for his repeated attempts
to terminate Mr. Goff’s employment. Thus, his intentional interference with a contractual
relation claim survived.
68
The court, relying on McManus v. MCI Communications Corp., 748 A.2d 949, 952 (D.C.
2000) (citing Bible Way Church v. Beards, 680 A.2d 419, 432-33 (D.C. 1996)), held that an at-
will employee could not state a claim of tortious interference with contract despite the language
in several D.C. opinions recognizing that at-will employment is “a species of contract.” Sheppard
v. Dickstein, Shapiro, Morin & Oshinsky, 59 F. Supp. 2d 27 (D.D.C. 1999) (citing Rinck v.
Ass’n Reserve City Bankers, 676 A.2d 12, 15 (D.C. App. 1996); Sorrells v. Garfinckel’s Brooks
Brothers, Miller & Rhoads, Inc., 565 A.2d 285 (D.C. 1989) (upholding summary judgment for
an employer against an employee’s wrongful termination suit). The Riggs court held that
McManus held that at-will employment, even though a species of contract, was an insufficient
basis for the type of contractual relationship necessary to serve as a basis for the intentional tort
of interference with contract. And, the court distinguished Sorrells, as did an earlier court in
Dale v. Thomason, 962 F. Supp. 181, 183 (D.D.C. 1997), on the grounds that “Sorrells involved
only the question whether a supervisory employee may interfere with a subordinate’s
employment without a proper purpose” and “[t]he court did not consider the issue whether an at-
will employee may maintain such an action at all
West v. MCI Worldcom, Inc., 205 F. Supp. 2d 531 (E.D. Va. 2002).
The plaintiff was romantically involved with a project leader. Once she broke things off
with him, she was dropped from the project. She lodged a Title VII claim and claimed tortious
interference with her at-will contractual relationships. Summary judgment was granted to the
defendants on each count. As to the Title VII claim, the plaintiff was placed with the defendant
through a staffing agency and her job more closely followed administrative work over which
defendant had little control, thus plaintiff is an independent contractor and not an employee of
defendant. Plaintiff’s tortious interference claim was dependent on her Title VII claim and must
likewise fail because the latter failed.
McGuire v. Tarmac Envt’l Co, Inc., 293 F.3d 437 (8th Cir. 2002).
The court held that, under Missouri law, once a plaintiff has made a submissible case on
the issue of intentional interference with a contract, plaintiff has also made a submissible case on
the issue of punitive damages. See Ross v. Holton, 640 S.W.2d 166, 174 (Mo. Ct. App. 1971);
Mills v. Murray, 472 S.W.2d 6, 17-18 (Mo. Ct. App. 1971).
Nickens v. Labor Agency of Metro. Wash., 600 A.2d 813 (D.C. 1991).
The court held that the tort of intentional interference with contract can proceed against a
corporate officer where the officer acts with actual malice or for his own benefit, rather than for
the corporation’s interests. Thus, a corporate officer “will be personally liable if he acts against
the corporation’s interest, for his own pecuniary benefit, or with the intent to harm the plaintiff.”
69
Stanek v. Greco, 323 F.3d 476 (6th Cir. 2003).
The Court of Appeals for the 6th Circuit reversed a lower court decision, with the
appellate court holding that a former employee can assert a claim for tortious interference with
an at-will employment relationship against a third party under Michigan law. The court noted
that the Michigan Supreme Court had not resolved whether such a claim could be asserted, but it
found that in the absence of such a determination by the state’s highest court, that the claim for
tortious interference did not constitute an at-will exception, but rather that the tort claim existed
independently of the at-will contract itself. The lower court did not address the issue as to
whether the president of the plaintiff’s former employer was properly a third party for the
purpose of a tortious interference claim and, as such, the appellate court did not decide that issue.
Tortious Interference with Economic Relationships
Bleich v. Florence Crittenton Servs. of Balt., Inc., 632 A.2d 463 (Md. Ct. Spec. App. 1993).
Maryland recognizes “two general types of tort actions for interference with business
relationships[:]…inducing the breach of an existing contract and, more broadly, maliciously or
wrongfully interfering with economic relationships in the absence of a breach of contract.”
Natural Design, Inc. v. Rouse Co., 485 A.2d 663 (Md. 1984). The two torts do have some
different elements. In Bleich, the Maryland Court of Special Appeals found that plaintiff’s claim
failed because plaintiff did not allege that a third party intentionally interfered with the business
relationship and because plaintiff did not allege that the actions of a supervisor were not within
the scope of her authority or “without the intent to further the interests of her [corporate]
principal.” See also Sullivan v. Heritage Found., 399 A.2d 856, 861 (D.C. 1979) (finding
summary judgment on a claim for a tortious interference with business relationship proper
because plaintiff offered no evidence that corporate officer’s conduct, even if motivated by
malice, was contrary to some “legitimate business purpose”).
Tortious Interference with Prospective Advantage
The court, reciting the elements of a claim for tortious interference with prospective
advantage, relying on McManus v. MCI Communications Corp., 748 A.2d 949 (D.C. 2000), and
rejecting contrary federal district court decisions –Bell v. Ivory, 966 F. Supp. 2d 23, 31 (D.D.C.
1997); Rauh v. Coyne, 744 F. Supp. 1186, 1190 (D.D.C. 1990) –held that an at-will employee
70
may not proceed with a claim of tortious interference with business relations. The court relied
on language in McManus, where the court stated that it “never has held that an employee can
maintain a suit for interference with prospective advantage where her expectancy was based on
an at-will relationship and we do not do so now.”
Reeves v. Hanlon, 95 P.3d 513 (Cal. 2004).
The California Supreme Court ruled that the defendant’s interference with plaintiff’s
relationship with their at-will employees was actionable under a theory of tortuous interference
with prospective economic advantage. The court found that defendant’s efforts to recruit
plaintiff’s employees went beyond inducements and amounted to a campaign to deliberately
harm plaintiff’s business.
Civil Conspiracy
The court declined to dismiss a civil conspiracy claim where the plaintiff claimed that the
defendants conspired together to terminate plaintiff’s employment because he refused to advance
defendant’s NAHR’s political and legislative agenda through means prohibited by federal tax
laws and DOL regulations. The court held that plaintiff had satisfied the elements of a claim of
civil conspiracy, i.e., “(1) an agreement between two or more persons; (2) to participate in an
unlawful act, or in a lawful act in an unlawful manner, and (3) an injury caused by an unlawful
overt act performed by one of the parties to the agreement (4) pursuant to, and in furtherance of,
the common scheme.” Griva v. Davison, 637 A.2d 830, 848 (D.C. 1994) (citing Halberstam v.
Welch, 705 F.2d 472, 477 (D.C. Cir. 1983)).
Wesley v. Howard Univ., 3 F. Supp. 2d 1 (D.D.C. 1998).
The court recognized an exception to the intracorporate conspiracy doctrine where the
individual conspirators are not acting on behalf of the corporation and within the scope of their
employment, but solely for personal, non-business motivations. See also Weaver v. Gross, 605
F. Supp. 210, 215 (D.D.C. 1985); Roniger v. McCall, 22 F. Supp. 2d 156, 169 (S.D.N.Y. 1998).
Walker v. Boeing Corp., 218 F. Supp. 2d 1177 (C.D. Cal. 2002).
The court held that the statute of limitations for civil conspiracy “is determined by the
nature of the action in which the conspiracy is alleged.” (quoting Boys Town, USA, Inc. v.
World Church, 349 F.2d 576, 579 (9th Cir. 1965).
71
De Boer Strucutres v. Shaffer Tent and Awning Co., 233 F. Supp. 2d 934 (S.D. Ohio 2002).
The Southern District of Ohio, among other things, denied partial summary judgment to
the defendant for the plaintiff employees’ claim of conspiracy to breach fiduciary duty, holding
that the civil conspiracy claim did not require a duty to exist on the part of a co-conspirator, but
only a “common understanding or design to commit an unlawful act.”
Spoliation of Evidence
Glotzbach v. Froman, 827 N.E. 2d 105 (Ind. Ct. App. 2005).
The Indiana Court of Appeals held that a Worker’s Compensation Claim does not forbid
an independent claim for spoliation by a decedent employee against an employer who removed
evidence from the site of workplace accident that resulted in the death of an employee. The
court held that the employer had a duty to the decedent to preserve the evidence. It is the
presence of this duty that brings about an actionable tort for the negligent or intentional
spoliation of evidence.
Aloi v. Union Pac. R.R. Corp., 129 P.3d 999 (Colo. 2006).
The Colorado Supreme Court ruled that the lower court was correct to give the jury
adverse inference instructions where the defendant railroad willfully destroyed relevant
documents before the document retention period expired. The court found that it was not
necessary to find that the document destruction has been in bad faith before giving the jury
adverse inference instructions.
Sterbenz v. Attina, 205 F. Supp. 2d 65 (E.D.N.Y. 2002).
In a non-employment case, the court collects New York authorities which, with one
exception, reject spoilation of evidence as a cognizable tort action. The court also collects
authorities from those states that recognize the claim on the scope of the duty to preserve
evidence.
Timber Tech Engineered Bldg. Prods. v. Home Ins. Co., 55 P.3d 952 (Nev. 2002).
The Nevada Supreme Court declined to recognize an independent tort for spoliation of
evidence. The court cited authorities recognizing and rejecting such a claim.
72
Homes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998).
The court recognized a claim for the tort of negligent or reckless spoliation of evidence to
be used in a civil case. The elements of such a claim were set forth as follows:
(1) existence of a potential civil action; (2) a legal or contractual duty to preserve
evidence which is relevant to that action; (3) destruction of that evidence by the
duty-bound defendant; (4) significant impairment in the ability to prove the
potential civil action; (5) a proximate relationship between the impairment of the
underlying suit and the unavailability of the destroyed evidence; (6) a significant
possibility of success of the potential civil action if the evidence were available;
and (7) damages adjusted for the estimated likelihood of success in the potential
civil action.
Hannah v. Heeter, 584 S.E.2d 560 (W. Va. 2003).
The Supreme Court of West Virginia answered certified questions submitted by the lower
court with respect to whether West Virginia recognizes spoliation of evidence as a stand-alone
tort when the spoliation results from a negligent act of a party to the action, when the spoliation
results from an intentional act of a party to the action, and when the spoliation results from a
negligent act of a third party. The court held that West Virginia does not recognize spoliation as
a stand-alone tort when the spoliation is the result of a negligent act by a party, but that it does
recognize such spoliation when it is the result of an intentional act by that same party. The court
also held that spoliation as a stand-alone tort can be articulated when it result from the negligent
act of a third-party.
Evidence
Stover v. Rite Aid Corporation, No. 00ca3070 (D.C. Super. Ct. 2002).
The court addressed the question as to whether a defendant may include evidence of a
witness’ lack of prior sexual harassment charges on the basis of establishing the character of the
witness, establishing credibility, proving the reasonableness of the defendant employer’s actions
before and after the harassment, and demonstrating the witness’ lack of intent to commit the
alleged act. The court held that such evidence could not be introduced on direct examination to
speak to the character of a non-party witness and was irrelevant to his credibility as a witness,
but was relevant to the defendant’s actions and the reasonableness thereof. However, such
evidence was subject to several limiting instructions making it clear that the evidence was only
to be introduced as to the reasonableness of the defendant corporation’s action with respect to the
witness and not as evidence as to whether the witness had indeed harassed anyone. The court
73
made a distinction between the permissible use of a prior nefarious act to show motive and
intent, versus the absence of such an act to show the absence of such motive or intent, the latter
of which was prohibited.
The court also tackled whether the jurisdiction should apply the affirmative defense that
an employer is not vicariously liable to an employee if they do not take a “tangible employment
action” against an employee, as articulated in the United States Supreme Court decisions in
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524
U.S. 775 (1998), to an action brought under the District of Columbia Human Rights Act
(DCHRA). The court reasoned that the DCHRA and Title VII afforded substantially similar
protections with respect to employment discrimination, and by virtue of such similarity adopted
the Supreme Court reasoning in the absence of any controlling legal authority.
Mena v. Key Food Stores, 2003 N.Y. Misc. LEXIS 231 (N.Y. Gen. Term 2003).
The Supreme Court in Kings County, New York, in a racial bias suit where plaintiff
employees secretly taped telephone conversations where the defendant referred to potential job
applicants with racial slurs and other epithets, the court found that such evidence would not be
suppressed, even if such conversations were taped with the assistance and on the advice of
plaintiff’s counsel and then released to the press. The court found that defendant’s argument that
such conduct violated the Code of Professional Responsibility was inapposite because the
judiciary is not constrained to read the rules of professional conduct literally in litigation but
rather to use them as guidelines in litigation and that, even if such rules are violated, suppression
of evidence should not occur unless “some constitutional, statutory, or decisional authority”
mandates otherwise. As such, defendant’s motion to suppress evidence was denied.
State Whistleblowers Law
Crawford v. District of Columbia, 891 A.2d 216 (D.C. 2006).
Judge Kramer delivered the opinion of the court. Crawford appealed the trial court’s
ruling denying him injunctive and declaratory relief and attorney’s fees and costs. This court
affirmed the trial court’s ruling and held that Crawford misconstrued the District of Columbia
Whistleblower Protection Act.
The jury found as fact that Crawford 1) made disclosures protected by the DCWPA; 2)
that his employer “took or threatened to take a prohibited personnel action against” Crawford; 3)
Crawford’s “protected disclosure” was a “contributing factor” in his dismissal; and 4) his
removal would have occurred independent of his protected disclosure.
The case’s outcome turned on the fourth finding. Once an employee makes a prima facie
case that his “protected disclosure” was a “contributing factor” to his dismissal, the employer
must show by clear and convincing evidence that the dismissal would have occurred for
74
“legitimate, independent reasons” aside from the employee’s engagement in activities protected
under the Act.
Crawford claimed that the third finding entitled him to declaratory and injunctive relief
and attorney’s fees and costs. In reviewing de novo, the court found basic statutory
interpretation flaws with Crawford’s arguments. First, his strained interpretation of the statute
made sections redundant. Second, his reading rendered sections superfluous. Finally, the court
held that the DC Council specifically delineated between civil liability for the employer and
grounds for triggering the employer’s internal discipline system.
King v. Marriott Int'l, Inc., 866 A.2d 895 (Md. Ct. Spec. App. 2005).
Judge Eyler delivered the opinion of the court. The Circuit Court for Montgomery
County granted summary judgment in favor of defendant employer on the grounds that plaintiff
employee showed neither a violation of public policy – an exception to the rule barring wrongful
termination claims for at-will employees – nor preemption of state law by federal law.
King claimed that she was fired for disputing the legality of her manager’s decision to
place certain pension funds into general corporate funds, possibly in violation of federal law.
King argued that Maryland public policy protected whistleblowers in situations such as hers.
The court found her argument deficient and did not reach the preemption claim.
Maryland public policy does protect whistleblowers, but only when they go to government
officials with a more serious claim; at-will employees who resort to internal corporate processes
to address possible illegalities of this degree are not protected by Maryland public policy.
Snow v. McClosky, 896 So. 2d 787 (Fla. Dist. Ct. App. 2005).
An attorney alleged that she was fired in violation of the Florida Private Sector
Whistleblower Act and that her termination was a breach of the implied covenant of good faith
and a violation of public policy. The attorney was fired after she reported the alleged theft of her
superior from their former firm. Her complaint was dismissed on all counts when the court
decided that the Florida Rules of Professional Conduct did not qualify as a “law, rule, or
regulation” as was required to qualify under the Whistleblower Act. Additionally, the issue of
whether it is appropriate to afford whistleblower protection to an attorney in this situation is up
to the legislature, and that public policy was not established by this court. The implied covenant
of good faith was not violated because it can not be used to create a breach of contract where
there was no breach of an express provision of the contract. Therefore, an attorney reporting an
ethical violation may be fired without the protection of the whistleblower laws.
Ginn v. Kelley Pontiac-Mazda, Inc., 841 A.2d 785 (Me. 2004).
Maine’s highest court held that the plaintiff in an employment discrimination action
under state whistleblower law is not entitled to the value of his company car as part of a back pay
75
award, absent any evidence that plaintiff incurred out-of-pocket expenses as a result of his loss of
the car. The car had been provided by the employer for commuting purposes.
Branche v. Airtran Airways, Inc., 342 F.3d 1248 (11th Cir. 2003).
The Eleventh Circuit held that plaintiff’s retaliatory discharge claim in violation of
Florida’s Whistleblower Act was not preempted by the Airline Deregulation Act, including the
amendment thereto which included whistleblower protections for airline employees.
Ebelt v. County of Ogemaw, 231 F. Supp. 2d 563 (E.D. Mich. 2002).
The Michigan anti-discrimination law (Elliott-Larsen Civil Rights Act) and the Michigan
Whistleblower Protection Act do not apply to independent contractors.
Montgomery v. E. Corr. Inst., 835 A.2d 615 (Md. 2003).
The Maryland Court of Appeals granted certiorari to an administrative assistant in the

state prison system who filed a whistleblower complaint against the system, claiming that she
was reassigned within the system in retaliation for a grievance filed against her former
supervisor. The court specifically granted certiorari to answer the question as to whether a state
employee “who has field a grievance about the behavior of her supervisor, complaining that he
has created a hostile work environment that is detrimental to her career, made a ‘protected
disclosure’ under section 5-305 of Maryland’s Whistleblower Act.” The parties stipulated that
the Maryland Whistleblower Act was “patterned after the whistleblower provisions of the Civil
Service Reform Act (CSRA)” and therefore the court applied Federal Circuit and Merit Systems
Protection Board jurisprudence to show that the “an alleged reprisal by a supervisor against an
employee for filing a personnel grievance about that supervisor is not protected under
Maryland’s Whistleblower Law.”
Adams v. Uno Rests., Inc., 794 A.2d 489 (R.I. 2002).
The Rhode Island Supreme Court affirmed a verdict for plaintiff under the state
Whistleblower Protection Act where plaintiff, after notifying the Department of Health of
unsanitary conditions in defendant's kitchen, was fired on a pretextual basis, a complaint was
lodged by employer with police, a criminal charge of disorderly conduct was made against him,
his National Guard security clearance was revoked and he lost an overseas assignment as a
consequence.
76
Anderson-Johanningmeier v. Mid-Minnesota Women’s Ctr., Inc., 637 N.W.2d 270 (Minn.
2002).
Plaintiff questioned whether another employee was entitled to vacation pay under the
wage and hour laws. Plaintiff sued under Minnesota’s whistleblower statute which provides for
a cause of action for an employee terminated because “(a) the employee, or a person acting on
behalf of an employee, in good faith, reports a violation or suspected violation of any federal or
state law or rule adopted pursuant to law to an employer or to any governmental body or law
enforcement official[.]” The lower court found that the statute contained a public policy
requirement and that none was implicated in the case. The Minnesota Supreme Court reversed,
rejecting “the importation of a public policy requirement into the whistleblower statute…”
Lincoln v. Interior Reg’l Hous. Auth., 30 P.3d 582 (Alaska 2001).
The court reversed summary judgment on a state whistleblower act claim where plaintiff
had been threatened with disciplinary action if she cooperated with a United States Department
of Housing and Urban Development (HUD) investigation and thereafter plaintiff wrote to HUD
expressing her fear of retaliation if she divulged information regarding defendant’s practices;
where after plaintiff cooperated with HUD, she was laid off in an irrational job elimination; and
where her former job was redefined so that she was ineligible for it. The court found that
genuine issues of material fact existed as to whether defendant’s conduct was pretextual.
Mehlman v. Mobil Oil Corp., 707 A.2d 1000 (N.J. 1998).
The Supreme Court of New Jersey upheld an appellate court decision that New Jersey’s
Conscientious Employee Protection Act (CEPA) protected an employee from retaliation by his
employer because he publicly objected to the high levels of benzene sold by one of the
employer’s Japanese subsidiaries. The court held that “the sensible meaning of CEPA is that the
objecting employee must have an objectively reasonable belief, at the time of objection or refusal
to participate in the employers offensive activity, that such activity is either illegal, fraudulent or
harmful to the public health, safety or welfare, and that there is a substantial likelihood that the
questioned activity is incompatible with a constitutional, statutory, or regulatory provision, code
of ethics, or other recognized source of public policy” and that a plaintiff was not required to
specifically know the “precise source of public policy.” The fact that the citizens affected by the
public policy that the employee believed supported his claim for retaliation were not citizens of
New Jersey, but in fact Japanese, did not eviscerate the plaintiff’s claim. The dissent argued
among other things that “Congress is free to regulate the overseas activities of domestic
companies,” but that it was doubtful that the New Jersey courts or legislature could do the same.
77
State Anti-Discrimination Laws
Garg v. Macomb Country Community Mental Health Services, 696 N.W.2d 646 (Mich. 2005).
The Michigan Supreme Court, overruling Sumner v. Goodyear Tire & Rubber Co, 398
N.W.2d 368 (Mich. 1986), held that the “continuing violations” doctrine has no place in the
state of Michigan’s jurisprudence and that the focus of civil rights violations should be the
existence of a current violation. The court reasoned that the theory of “continuing violations” is
inconsistent with the language of the statute of limitations of Michigan law for civil rights
complaints.
Bergn Commer. Bank v. Sisler, 723 A.2d 944 (N.J. 1999).
The New Jersey Supreme Court held that New Jersey’s Law Against Discrimination
(LAD) is not limited to protection of individuals above the age of 40, rather it protects all
individuals from being discriminated against solely because of their age. The court found that
the plaintiff was unable to show any causal link between his termination and his young age.
However, the court overruled the lower court’s determination that the LAD only applies to
workers older than 40. The court noted that the ADEA, by its terms, applies only to workers at
least 40 years of age.
Egan v. Hamline United Methodist Church, 679 N.W.2d 350 (Minn. Ct. App. 2004).
The Minnesota Court of Appeals held that a former music director of the defendant
church could not sue the church under the state anti-discrimination law because his work as
music director related to the religious purposes for which the church was organized.
Hoffman-La Roche, Inc. v. Zeltwanger, 133 S.W.3d 438 (Tex. 2004).
The Texas Supreme Court ruled that a plaintiff cannot collect damages for mental
anguish and punitive damages for both a statutory sexual harassment claim and an intentional
infliction of emotional distress claim based on the same underlying actions. The court ruled that
the statutory damages, while significantly smaller, were intended to compensate for all damages
and plaintiff cannot bypass the statutory cap by bringing a separate claim.
Lively v. Flexible Packaging Ass’n, 830 A.2d 874 (D.C. 2003).
The D.C. Court of Appeals, using a Morgan analysis, held that plaintiff’s claim of a
sexually hostile work environment was not time barred because one incident relative to the
plaintiff’s claim occurred within the one-year time period.
78
Pardue v. Center City Consortium Schs. of the Archdiocese of Wash., Inc., 875 A.2d 669 (D.C.
2003).
The D.C. Court of Appeals held that the Free Exercise Clause exemption of the selection
of clergy from Title VII extended to the principal of a Catholic School in the Archdiocese of
Washington and that the District of Columbia Superior Court did not have subject matter
jurisdiction over the claim because the archdiocese was protected under the ministerial
exception. In applying the Rayburn test, see Rayburn v. General Conference of Seventh-Day
Adventists, 772 F.2d 1164, 1168 (4th Cir. 1985), which examines an employee’s function rather
than ordination in determining whether an employee should be treated as clergy for the purposes
of determining subject matter jurisdiction, the court held that the function of a principal in the
Catholic school system was to play “a significant religious and spiritual role in furthering” of the
Church’s mission.
Friedman v. S. Cal. Permanente Med. Group, 2002 Cal. App. LEXIS 4641 (Cal. Ct. App. 2002).
The court found that veganism is not a “religious creed” within the meaning of the
California anti-discrimination law. Defendant required that plaintiff be vaccinated for mumps.
Plaintiff declined because the vaccine is grown in chicken embryos and thus to be vaccinated
would violate plaintiff’s system of beliefs and would be considered immoral by him. When
plaintiff refused to be vaccinated, defendants withdrew its job offer. But see Peterson v. Wilmur
Commc’ns, Inc., 205 F. Supp. 2d 1014 (E.D. Wis. 2002) (The white supremacist belief system
called “Creativity” is a “religion” within the meaning of Title VII, based on employee’s
statements that he had a sincere belief in the teachings of Creativity, and that he considered
Creativity to be his religion.).
Dooley v. Autonation USA Corp., 218 F. Supp. 2d 1270 (N.D. Ala. 2002).
The court held that, as Alabama Age Discrimination in Employment Act tracks the
federal ADEA in its interpretation and as the Eleventh Circuit has rejected the disparate impact
theory under the federal ADEA, a disparate impact claim under the Alabama statute will not lie.
Arnold v. Janssen Pharm., Inc., 215 F. Supp. 2d 951 (N.D. Ill. 2002).
The Illinois state anti-discrimination law preempts/displaces common law claims

“inextricably linked to a civil rights violation such that there is no independent basis for the
action apart from the Act itself.” Maksimovic v. Tsogalis, 687 N.E.2d 21, 23 (Ill. 1997). The
court held that “[m]ere factual overlap is not decisive.” The court held that ant-discrimination
law was not intended to preempt all tort claims arising out of the actions it prohibits.
79
H.P. White Lab., Inc. v. Blackburn, 812 A.2d 305 (Md. 2002).
The Maryland Court of Appeals held that a Harford County code providing for a cause of
action for retaliation was unconstitutional, as it did not constitute a local law but rather
encroached on the authority of the court of appeals or the state legislature to create either
statutory or common law causes of action. The court reversed all awards stemming from claims
based entirely on the county retaliation provision.
Erickson v. Labor &Indus. Review Comm’n, 704 N.W. 2d 398 (Wis. Ct. App. 2005).
The Wisconsin Court of Appeals held that the plaintiff’s claim that he was terminated
because of his disability failed under the Wisconsin Fair Employment Act because plaintiff did
not show that his injury was permanent or that his employer perceived him as being disabled
when it terminated him.
Knight v. Georgetown Univ., 725 A.2d 472 (D.C. 1999).
The District of Columbia Court of Appeals affirmed both a trial court judgment for the
defendant hospital in a District of Columbia Human Rights Act (DCHRA) claim and for the
plaintiff nurse in a promissory estoppel claim, where the African-American defendant was not
placed in a supervisory position as the two white nurses were after a reorganization within the
Department of Laboratory Medicine. The court held that there was no plain error in jury
instructions for racial discrimination where the jury is instructed to consider all evidence, where
the trial court described claims against each defendant, and where the liabilities of the employer
and aiders or abettors were delineated. The court also held that an employer’s oral promise
during reorganization not to discharge an employee successfully rebutted a presumption of at-
will employment. The court of appeals did vacate the lower court’s distribution of costs, which
favored the defendant, stating that the defendant could not be deemed the prevailing party just
because the plaintiff lost on the DCHRA claim, since the defendant did prevail on the promissory
estoppel claim. However, two other individual plaintiffs prevailed on the DCHRA claim and
were not sued under the promissory estoppel claim; as such, the apportionment of court costs to
them was valid.
Dahill v. Police Dep’t of Boston, 748 N.E.2d 956 (Mass. 2001).
The United States District Court of Massachusetts asked whether the Massachusetts
antidiscrimination statute required consideration of “mitigating or corrective devices in
determining whether a person has a handicap.” The Supreme Judicial Court of Massachusetts
answered this question in the negative, holding that such mitigating or corrective devices did not
need to be considered. The court further stated that though the fact that a police officer wore a
hearing aid would not bar him from bringing a discrimination suit against the police department
80
for firing him, he would still have to prove that he could perform his job with or without
reasonable accommodation and that his handicap, in this case of loss hearing, was the reason that
the police department fired him.
Briggs v. N.Y. State Dept. of Transp., 233 F. Supp. 2d 367 (N.D.N.Y. 2002).
The court held, among other things, that individual defendants may be held liable under
New York’s Human Rights Law (HRL) for sex discrimination, based upon the Second Circuit’s
decision in Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995), where the court held that the
aider and abettor provision with the HRL provides a basis for holding individuals who participate
in the conduct liable. However, the court held that where a complaint does not specifically
allege that an individual participated in discriminatory conduct, that individual cannot be held
liable as an individual.
Beason v. United Techs. Corp., 337 F.3d 271 (2d Cir. 2003).
The court found that the lower court erred in relying upon the ADA’s standard for
determining whether a person is disabled within the meaning of the Connecticut Fair
Employment Practices Act (CFEPA). The court found that the CFEPA’s definition of physical
disability is broader than the ADA’s. Further, the court found that the CFEPA provides, unlike
the ADA, no cause of action for perceived physical disability.
Individual Liability Under Anti-Discrimination Laws
Shabazz v. Bob Evans Farms, Inc., 881 A.2d 1212 (Md. Ct. Spec. App. 2005).
The Maryland Court of Special Appeals held that the Maryland statute that prohibits
employment discrimination, Article 49B, does not allow individual supervisors to be held
personally liable for back pay. The court held that unlike Title VII, Article 49B “does not
created a general private cause of action in favor of victims of discrimination” and the proper
forum for seeking adjudication of an alleged unlawful employment practice are the statutory
remedies created by Article 49B. While acknowledging that Article 49B’s and Title VII have
identical damage provisions allowing the inclusion of back pay in any damage award to be paid
by “an employer or any agent,” the court followed Birkbeck v. Marvel Lighting Corp, 30 F.3d
507 (4th Cir. 1994) generally incorporating the doctrine of respondeat superior as it relates to an
individual employee’s liability for actions committed as an agent of the employer.
MacIntosh v. Bldg. Owners & Managers Ass'n Int'l, 355 F. Supp. 2d 223 (D.D.C. 2005).
81
Employee brought claims against his former employer alleging violations of the D.C.
Human Rights Act, violations of 42 U.S.C. § 1981, wrongful termination, and breach of contract.
Employee sued two company executives in their individual capacity. The court held that the
director and vice president could be sued in their individual capacity under 42 U.S.C. § 1981,
even if they could not be held individually responsible under Title VII. See Sheppard v.
Dickstein, Shapiro, Morin & Oshinsky, 59 F. Supp. 2d 27, 33 (D.D.C. 1999); see also Al-
Khazraji v. Saint Francis College, 784 F.2d 505, 518 (3d Cir. 1986) (holding that individuals
personally involved in the discriminatory action may be held liable); Santiago v. City of
Vineland, 107 F. Supp. 2d 512 (D.N.J. 2000) (citing Sheppard and Al-Khazraji in holding
defendants liable in their individual capacities).
Additionally, the court determined that the executives could also be sued in their
individual capacities under the District of Columbia Human Rights Act (DCHRA), D.C. Code
Ann. § 2-1401 et seq. The DCHRA covers any person acting in the interests of the employer and
prohibits aiding or abetting discrimination. This gives rise, the court reasoned, to individual
liability.
Individuals may be held liable for discrimination and retaliation under the DC Human
Rights Act. The plain language of the act was analyzed to determine that individuals are liable.
Employer, under the act, includes “any person acting in the interests of such employer” D.C.
Code §1-2502(10) (1992), D.C. Code §2-1401.02(10) (2001). Additionally, it is unlawful under
the act for any person to aid or abet in discrimination. When these provisions are read together,
reasoned the court, there is no question that individual liability applies. This case has been
followed in the District of Columbia. See Martini v. Federal Nat. Mortgage Ass’n, 977 F. Supp
464, 479 (D.D.C. 1997) (Under the DCHRA, “individual supervisors can be held liable for their
acts of discrimination.”); Russ v. Van Scoyoc, 59 F. Supp. 2d 20, 24-25 (D.D.C. 1999); Blake v.
Prof’l Travel Corp., 768 A.2d 568, 575 (D.C. 2001); Gardner v. Benefits Commc’ns Corp., 175
F.3d 155, 161 (D.C. Cir. 1999).
Brown v. Scott Paper Worldwide Co., 20 P.3d 921 (Wash. 2001).
The Supreme Court of Washington held that supervisors, along with their employers,
could be held liable for their discriminatory acts under Washington's law against discrimination,
chapter 49.60 RCW. The strong commitment to the elimination of discrimination suggested that
the legislature intended both the individual supervisor who discriminated and the employer for
whom the supervisor worked to be held liable.
Vivian v. Madison, 601 N.W. 2d 872 (Iowa 1999).
This case centered around a certified question of law from the United States District
Court for the Southern District of Iowa asking whether defendant supervisory employee was
82
subject to individual liability for unfair employment practices under Iowa Code § 216.6(1). The
case concerned a claim of racial and sexual employment discrimination in violation of the Iowa
Civil Rights Act. The court held that a supervisory employee was subject to individual liability
for unfair employment practices under the statute.
Reno v. Baird, 957 P. 2d 1333 (Cal. 1998).
In an employment discrimination action under the California Fair Employment and

Housing Act, employee sought to hold employer personally liable for discrimination. The court
held that individuals who did not themselves qualify as employers could not be sued for
discrimination. The Fair Employment and Housing Act’s provisions apply only to employers,
unlike the provisions for harassment which in California do apply to individuals as well as
employers.
Genaro v. Cent. Transp., Inc., 703 N.E.2d 782 (Ohio 1999).
The Ohio Supreme Court found that the plain language of the Ohio unlawful
discrimination statute, Ohio Rev. Code Ann. § 4112, imposed individual liability on managers
and supervisors for discriminatory conduct. The language of the statute was construed broadly
to uphold the strong public policy against discrimination.
Marshall v. Manville Sales Corp., 6 F.3d 229 (4th Cir. 1993).
In a Fourth Circuit challenge of the judgment of the United States District Court for the
Southern District of West Virginia an employee alleged discrimination under the West Virginia
Human Rights Act, W. Va. Code § 5-11-1 et seq. The court determined that the Plant manager
could be sued in his individual capacity under the WV Human Rights Act which includes aiding
and abetting language.
Hill v. Ford Motor Co., 324 F. Supp. 2d 1028 (E.D. Mo. 2004).
Employee sued her employer and two individuals alleging employment discrimination
under the Missouri Human Rights Act (MHRA), Mo. Rev. Stat. § 213.010 et seq. The employer
removed the case to federal court asserting that the two named individuals were fraudulently
joined to destroy diversity jurisdiction. The employee moved to remand to state court. The court
ruled that there was a question of whether the Missouri Supreme Court might impose liability on
the two individuals under the MHRA. The court chose not to definitively settle this issue and
granted the motion to remand the case, thereby leaving the question for the state courts to decide.
83
Carpenters Health & Welfare Fund v. Kenneth R. Ambrose, Inc., 727 F.2d 279 (3d Cir. 1983).
Shareholders challenged a judgment of the United States District Court for the Eastern
District of Pennsylvania holding them personally liable for delinquent fringe benefit
contributions in a suit brought by the Carpenters Health and Welfare Fund of Philadelphia under
the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a), and the Pennsylvania Wage
Payment and Collection Law, Pa. Cons. Stat. Ann. tit. 43, §§ 260.1 to .11. The court found that
there was individual liability under the Pennsylvania Wage Payment and Collection Law because
corporate officers violating any of the statute provisions were subject to criminal penalties.
Aiding and Abetting
Failla v. City of Passaic, 146 F.3d 149 (3d Cir. 1998).
The court held that in order for a supervisory employee to be held individually liable for
the actions taken with in the scope of his/her employment, a supervisory employee must have
knowingly given “substantial assistance or encouragement to the unlawful conduct of his
employer” in order to have individually violated the New Jersey Law Against Discrimination.
This new standard is a useful defense for individually named employees to seek dismissal of
cases against them brought under the Law Against Discrimination.
Sheperd v. Hunterdon Developmental Ctr., 803 A.2d 611 (N.J. 2002).
The New Jersey Supreme Court affirmed a lower court ruling that identified three
possible tests to determine when an employee individually is liable for aiding and abetting in an
unlawful act: 1) the employee must willfully and knowingly associate with the unlawful act—
simply inaction or allowance is not enough; 2) the employee must share in the intent of the act;
or 3) the employee must engage in acts of discrimination within the scope of employment.
Wasserman v. Potamkin Toyota, Inc., 1998 U.S. Dist. LEXIS 16769 (E.D. Pa. 1998).
Employee filed suit for violations of Title VII, the Pennsylvania Human Relations Act,
43 Pa. Cons. Stat. Ann. § 955 (1997), and intentional infliction of emotional distress against her
defendant employer and supervisors. The court determined that the complaint stated a valid
cause of action in that the failure of the supervisors to remedy the sexual harassment complaints
of the employee made the supervisors liable for aiding and abetting the employer's failure to
resolve the problem. Therefore the court denied the motion to strike the claim alleging violations
of the Pennsylvania Human Relations Act by the supervisors.
84
Schram v. Albertson’s Inc., 934 P.2d 483 (Or. Ct. App. 1997).
Employee claimed unlawful employment discrimination under Or. Rev. Stat. § 659.030,
common law wrongful discharge, and intentional interference with an employment relationship.
The claims arose after another employee sexually harassed the plaintiff and was then fired.
Plaintiff was then retaliated against and she was forced to leave her employment. She sought
individual liability from two supervisors. The court reasoned that these supervisors could be
held responsible only if they aided or abetted in the discrimination, however, the employee could
not recover from them in this case because the remedies she sought did not apply under the
statute.
Tyson v. Cigna Corp., 918 F. Supp. 836 (D.N.J. 1996).
In a racial discrimination case under the New Jersey Law Against Discrimination,
N.J.S.A. 10:5-1 et seq. the court held that the statute does not impose liability on non-supervisory
employees but does impose individual liability on supervisory employees when they
affirmatively engage in discriminatory conduct while acting within the scope of employment.
The court also reasoned that the statute creates accomplice liability via aiding and abetting the
discriminatory act. To be held responsible as an accomplice to the employer, the court notes, the
supervisor must be acting within the scope of his employment.
Contribution
Rodolico v. Unisys Corp., 1999 U.S. Dist. LEXIS 13203 (E.D.N.Y. 1999).
The court addressed the issue of whether an employer being sued for age discrimination
under the Age Discrimination in Employment Act (ADEA) which resulted partially from the
terms of a Collective Bargaining Agreement and a Performance Planning and Evaluation
Program could seek contribution from the union that was a party to the agreements. The court
decided that contribution could not be sought under the ADEA, but that contribution was
appropriate under the New York Human Rights Law (which was also at issue in this case).
Lane v. U.S. Steel, 871 F. Supp. 1434 (M.D. Ala. 1994).
In a suit for violations of Title VII and the Americans with Disabilities Act (ADA) the
employer filed a third party complaint seeking contribution from the employee’s union. The
court determined that there was no right to contribution from the union under either Title VII or
the ADA.
85
Application of Faragher/Ellerth Defense Under State Anti-Discrimination Statues
Chambers v. Trettco, Inc., 614 N.W.2d 910 (Mich. 2000).
The Supreme Court of Michigan determined that under the Michigan Civil Rights Act
that the United States Supreme Court decisions in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742
(1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), have no effect on the burden
of proof under the Michigan statute. The statute requires that the employee prove five elements
by a preponderance of evidence, the first four elements are those required under Title VII and the
final element is respondeat superior.
Pollock v. Wetterau Food Distrib. Group, 11 S.W.3d 754 (Mo. Ct. App. 2000).
After years of sexual harassment and intimidation from her immediate supervisor,
plaintiff quit her job and initiated a discrimination suit under the Missouri Human Rights Act,
Mo. Rev. Stat. § 213.010, et seq. (1994). An administrative regulation precluded an affirmative
defense for claims under the statute. The regulation was promulgated by the Missouri
Commission on Human Rights and provided employers were responsible for supervisory sexual
harassment regardless of whether they knew of the occurrence, which was later amended to read
that there is liability only “if the employer knew or should have known of their occurrence.” The
regulation now includes an affirmative defense that tracks the language of Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). See
Mo. Code Regs. Tit. 8 § 60-3.040(17)(D) (2001).
State/Local Laws Prohibiting Sexual Orientation/Gender Identification Discrimination
Philadelphia City Ordinance Bill No. 010719 (Sexual Orientation/Gender Identification

Discrimination).
(http://www.locallawpub.com/02-1update/01071900.pdf)
Florida – Section 15-21 of St. Petersburg City Code
(http://web.tampabay.rr.com/jmartin3/city_govt.htm)
86
Rhode Island – Sexual Harassment, Education, and Training Law
(http://www.rilin.state.ri.us/Statutes/TITLE28/28-51/INDEX.HTM)
State Laws Prohibiting Discrimination Based on Genetic Information
New Jersey Fair Employment Practices Act
(http://hr.cch.com/default.asp?subframe=/state-law-changes/january02.asp)
Virginia Genetic Testing Law
Virginia Genetic Testing Law
(http://www.doli.state.va.us/publications/pdf%20files/doli%20bill%20summaryrevised2.pdf)
Virginia enacted a statute prohibiting genetic testing or characteristics from being used in
hiring or promotion.
State Law Prohibiting Discipline Because of Display of American Flag
New Jersey Law Prohibits Flag Discrimination
(http://www.njlawnet.com/legislation2001.html)
New Jersey enacted a statute prohibiting discrimination against employees who display
the American flag at work.
State Law Prohibiting “English Only” Policies
The Illinois Human Rights Act has been amended, effective January 1, 2004, to prohibit
employers from adopting or enforcing a policy that limits or prohibits the use of any language in
the workplace. See Public Act 93-0217, available at:
http://www.legis.state.il.us/legislation/publicacts/fulltext.asp?Name=093-0217.
87
Volunteer Protection Act of Arizona
Armendarez v. Glendale Youth Center, Inc., 265 F. Supp. 2d 1136 (D. Ariz. 2003).
The United States District Court in Arizona held that the Volunteer Protection Act (VPA)
overruled both state and federal claims, shielding volunteers for a nonprofit or governmental
entity in any tort claim from liability stemming from acts committed within the scope of their
responsibilities as a volunteer. A plaintiff employee’s claim for unpaid wages under the Federal
Labor Standards Act was therefore dismissed as it pertained to individual defendant members of
the board of the non-profit co-defendant organization, as the Federal Labor Standards Act did not
fall in the explicit exceptions to the VPA set forth by Congress.
New Jersey Conscientious Employee Protection Act
DaBronzo v. Roche Vitamins, Inc., 232 F. Supp. 2d 306 (D.N.J. 2002).
The court found that New Jersey’s Conscientious Employee Protection Act did not apply
to independent contractors. Despite the fact that the plant owner had some control over the
independent contractor, the owner does not have the power to terminate the independent
contractor’s employment; thus, the independent contractor cannot be rightly called an employee
of the plant owner.
Covenant of Good Faith and Fair Dealing
Baradell v. Bd. of Soc. Servs., 970 F. Supp. 489 (W.D. Va. 1997).
The court held that Virginia “does not recognize a cause of action for breach of the
implied covenant of good faith and fair dealing in the employment context.” See also Schryer v.
VBR, 1991 Va. Cir. LEXIS 285 (Va. Fairfax Cir. Ct. 1991) (“I find no authority in Virginia for
implying a covenant of good faith and fair dealing in an at-will employment context.”) (citing
Mason v. Richmond Motor Company, 625 F. Supp. 883, 889-90 (E.D. Va. 1986); Costantino v.
Jaycor, 816 F.2d 671 (4th Cir. 1987)).
88
Brunswick Hills Racquet Club, Inc., v. Route 19 Shopping Center Assoc., 864 A.2d 387 (N.J.
2005).
In this case, the court held that New Jersey law requires that the implied covenant of
good faith and fair dealing can extend beyond the terms expressly found in the contract. In this
case, a tennis club attempted to exercise the options of the lease, but was unable to do so because
the leasing party refused to honor the requests for information and subsequently failed to execute
the terms of the contract. The court held that even though the tennis club did not properly
exercise its option of the lease, the conduct of the leasing party, Route 19 Shopping Center
Associates, was not in good faith and the lease options are executable.
Tymshare, Inc. v. Covell, 727 F.2d 1145 (D.C. Cir. 1984).
Judge Scalia issued the opinion of the court. Applying Virginia law, Judge Scalia
strongly infers that when discussing the provisions of an employment contract, good faith
revolves around the intent of both parties to execute the provisions of the contract. When a
contract allows for the employer to retroactively increase or decrease the monthly disbursement
of a yearly sales bonus to a salesman, the motive behind the increase/decrease is not necessarily
subjected to the “good faith” test. Here, the employer retroactively raised November’s quota
while lowering December’s. The result was that the excess sales achieved by the employee in
December shifted to cover the new November quota and erased the anticipated excess bonus.
The court held that so long as this decision occurred as the result of a “reasonable management
judgment,” it was not in violation of the employment contract per se, nor is there a requirement
under Virginia law for good faith in the execution of plainly stated contract.
Paul v. Howard Univ., 754 A.2d 297 (D.C. 2000)..
The court held that an at-will employee cannot pursue a claim for breach of the covenant
of good faith and fair dealing “because there is no contract to provide a basis for the covenant.”
In doing so, the court emphasized that “all contracts contain an implied duty of good faith and
fair dealing as enumerated in Hais v. Smith, 547 A.2d 986 (D.C. 1988). In Hais, the court stated
that the covenant means that “neither party shall do anything which will have the effect of
destroying or injuring the right of the other party to receive the fruits of the contract.” The Hais
court said that if a party to the contract evades the spirit of the contract, willfully renders
imperfect performance, or interferes with performance by the other party, said party may be
liable for breach of the covenant.
Lewis v. Methodist Hosp., Inc., 326 F.3d 851 (7th Cir. 2003).
Appellant doctor contracted with appellee hospital to manage the doctor’s cardiology
practice. Disputes arose concerning billing and fees, precipitating the doctor’s suit for breach of
contract and tortious interference with prospective advantage in business. The district court
89
found the action barred by Indiana’s two-year statute of limitations for tort claims; the Seventh
Circuit, however, regarded the claim as one rooted in contract as well and thus subject to
Indiana’s ten-year statute of limitations. The court noted the Indiana Supreme Court’s hesitancy
to reduce every breach of contract claim down to a tort claim, effectively repealing the
legislature’s determination of the longer period to file a breach of contract claim.
Edell & Assocs., P.C. v. Law Offices of Angelos, 264 F.3d 424 (4th Cir. 2001).
While Maryland recognizes the implied covenant of good faith and fair dealing in
contracts, the covenant is limited to prohibiting one party from acting in such a manner as to
prevent the other party from performing his obligations under the contract, and does not extend
to imply a general duty of good faith and fair dealing in the performance of obligations under the
contract that do not implicate or impair another party’s performance under the contract.
Froelich v. Erickson, 96 F. Supp. 2d 507 (D. Md. 2000).
The court recognized, without deciding the question, that the Maryland Court of Appeals
has never explicitly stated that there is a cause of action for breach of the duty of good faith and
fair dealing that is separate from a breach of the underlying contract and that the federal district
court for Maryland has consistently held that there is not a separate cause of action under
Maryland law. See Baker v. Sun Co., 985 F. Supp. 609 (D. Md. 1997); Howard Oaks, Inc. v.
Md. Nat’l Bank, 810 F. Supp. 674 (D. Md. 1993). Maryland holds that the covenant does not
add obligations to a contract, but rather prohibits one party from acting in such a manner as to
prevent the other party from performing his obligations under the contract.
Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089 (Cal. 2000).
The California Supreme Court held that the covenant of good faith and fair dealing could
not be used to impose substantive limits on an employer’s authority to terminate an at-will
employee.
Huegerich v. IBP, Inc., 547 N.W.2d 216 (Iowa 1996).
The Iowa Supreme Court rejected a breach of an implied covenant of good faith and fair
dealing exception to the employment at-will doctrine. See Fogel v Trs. of Iowa Coll., 446
N.W.2d 451, 456-57 (Iowa 1989) (collecting cases from other jurisdictions rejecting application
of the covenant in the at-will context).
90
Cochran v. Quest Software Inc., 328 F.3d 1 (1st Cir. 2003).
Among other claims, plaintiff contended that his termination prevented the vesting of his
remaining stock options and thus constituted a breach of the covenant of good faith and fair
dealing. The court rejected the argument on the ground that the unvested stock options could not
be treated as deferred compensation for services already performed, relying upon Harrison v.
NetCentric Corp., 744 N.E.2d 622, 629-30 (Mass. 2001).
Balbuena v. IDR Realty, 845 N.E.2d 1246 (N.Y. 2006).
The court held that undocumented workers—even if working illegally-- who are hurt on
the job can receive back pay for lost wages, medical costs, pain & suffering, and future lost
wages. Holding that the Immigration Reform and Control Act did not preempt state labor laws
requiring safe work conditions and should be liable for such mishaps.
Non-Compete Agreements
Holloman v. Circuit City Stores, Inc., 894 A.2d 547 (Md. 2006).
The Maryland Court of Appeals held that an arbitration agreement that allowed an
employer to terminate or modify the agreement after giving 30 days written notice at the end of
any year was supported by sufficient consideration and was therefore enforceable because the
employer was bound to comply with the agreement for an entire year before it could discontinue
it.
Willard Packaging Co., Inc. v. Javier, 2006 Md. App. Lexis 73 (Md. Ct. Spec. App. 2006).
The Maryland Court of Special Appeals held that the language in a restrictive covenant’s
liquidated damages clause was not calculated based upon a reasonable expectation of damages
and was designed to serve as a penalty. This, combined with the determination that the parties
were of unequal bargaining power and would be fired if they did not immediately sign the
agreement, led the court to award the employer only nominal damages in the amount of $1.
H&R Block Fin. Advisors, Inc. v. Majkowski, 410 F. Supp. 2d 1 (D.D.C. 2006).
The Court ruled that a non-compete agreement between plaintiff employer and defendant
financial planner employee was not enforceable because it limited the ability of individual
customers to do business with whomever they choose. The Court noted that it would be unfair to
91
punish the defendants for behavior that is practiced by most members of the industry, including
the plaintiffs.
Better Living Components, Inc. v. Coleman, 2005 Va. Cir. LEXIS 145 (Va. Albemarle Cir. Ct.
2005).
Judge Hogshire delivered the opinion of the court. In 1997, Mr. Coleman was employed
by Better Living and signed a contract with a two-year non-compete agreement that began at the
termination of Mr. Coleman’s employment. In 2004, Mr. Coleman quit working at Better Living
and began working for Blue Ridge where he sold the same products in the same geographical
area. The court looked at three factors in determining whether non-compete agreements are to be
upheld in equity: 1) did the employer write the agreement so as to reasonably protect a justifiable
business interest; 2) is the agreement not so unduly harsh as to impair the employee’s ability to
obtain a livelihood; 3) is the restraint reasonable from the standpoint of a sound public policy?
The court also considered whether it was appropriate for the court to “blue pencil” – excise and
rewrite language in agreements that act as restraints on trade to make the agreement comply with
the law – the non-compete agreement. Another line of jurisprudence takes “blue penciling” one
step further by allowing courts to insert language into the agreement to make it more reasonable.
Virginia as a state has declined to adopt a blue pencil rule, and the court here followed
suit. See also Wiley v. Royal Cup, Inc., 370 S.E.2d 744 (Ga. 1988) (Georgia does not recognize
a blue pencil rule.); Samuel Stores, Inc. v. Abrams, 108 A.2d 541 (Conn. 1919)) (Connecticut
does not recognize a blue pencil rule.); but see Holloway v. Faw, Casson & Co., 572 A.2d 510
(Md. 1990) (Maryland follows to a blue pencil rule.); Reddy v. Cmty. Health Found. of Man,
298 S.E.2d 906 (W. Va. 1982) (West Virginia follows a blue pencil rule.); E. Bus. Forms, Inc. v.
Kistler, 189 S.E.2d 22 (S.C. 1972) (South Carolina follows a blue pencil rule.); Prof’l Liab.
Consultants v. Todd, 468 S.E.2d 201 (N.C. 1996) (North Carolina follows a narrow blue pencil
rule.).
In the case at hand, the non-compete agreement failed the Roanoke test because of the
overbroad restriction on professional activities. The non-compete agreement proscribed mere
employment by a company that was in direct or indirect competition with Better Living. That is,
Mr. Coleman would be prohibited from being a comptroller at a company that has a little
geographical overlap with Better Living and sells the same products. The court found this to be
unreasonable and, following what it determined to be the Virginia Supreme Court’s predilection,
refused to blue pencil the non-compete agreement. Mr. Coleman’s demurrer was upheld.
DCS Sanitation Mgmt.v. Castillo, 435 F.3d 892 (8th Cir. 2006).
The court found that a non-compete agreement was not enforceable because it was too
broad. The court also held that the non-compete agreement was governed by Nebraska state law
even though the contract specified Ohio as the choice of law. The court stated that because the
contract was executed and performed in Nebraska and because state laws regarding non-compete
agreements are so varied, it was a violation of Nebraska policy to enforce the contract according
to Ohio law.
92
Labor Ready, Inc. v. Alan Abis, 767 A.2d 936 (Md. Ct. Spec. App. 2001).
The court held that to determine whether or not a non-compete clause is in accordance
with accepted public policy, all ambiguities found with in the non-compete agreement must first
be reconciled. The court also looked at three factors relevant to determine if a restrictive
covenant, in this case a non-compete agreement, is reasonable:
(1) whether restraint is necessary for the protection of the business or goodwill of
the employer, (2) whether it imposes upon the employee any greater restraint than
is reasonably necessary to secure the employer's business or goodwill, and (3)
whether the degree of injury to the public is such loss of the service and skill of
the employee as to warrant nonenforcement of the covenant.
Manuel v. Convergys Corp., 430 F.3d 1132 (11th Cir. 2005).
The court found that even though the defendant employer had limited contacts with
Georgia, there were sufficient contacts to establish jurisdiction. Because plaintiff employee filed
suit in Georgia before employer filed suit in Ohio, the court deferred to Georgia law under which
the non-compete agreement was invalid and unenforceable.
Roanoke Eng’g Sales v. Rosenbaum, 290 S.E.2d 882 (Va. 1982).
Judge Russell delivered the opinion of the court. When a court is evaluating non-
compete agreements, the court will apply the following three criteria to determine if the
agreement supersedes the restraint necessary to protect business interests:
1) Is the restraint, from the standpoint of the employer, reasonable in the
sense that it is no greater than is necessary to protect the employer in some
legitimate business interest?
2) From the standpoint of the employee, is the restraint reasonable in the
sense that it is not unduly harsh and oppressive in curtailing legitimate
efforts to earn a livelihood?
3) Is the restraint reasonable from the standpoint of a sound public policy?
Non-compete agreements that satisfy these criteria will be enforced in equity. In the case at
hand, the criteria were met, but the term of the violated non-compete agreement expired before
the case was decided. To avoid an inequitable result and maintain the integrity of such
agreements, the court enjoined the former employee from competing for 30 months, six months
less than the original term of the non-compete agreement.
For later affirmations of this case, see Advanced Marine Enters., Inc. v. PRC, Inc., 501
S.E.2d 148 (Va. 1998); Rash v. Hilb, Rogal & Hamilton Co. of Richmond, 467 S.E.2d 791 (Va.
1996); New River Media Group v. Knighton, 429 S.E.2d 25 (Va. 1993); Paramount Termite
Control Co., Inc. v. Rector, 380 S.E.2d 922 (Va. 1989); Mona Elec. Group, Inc. v. Truland Serv.
Corp., 6 Fed. Appx. 108 (4th Cir. 2003).
93
McGovern v. Deutsche Post Global Mail, LTD., 2004 U.S. Dist. LEXIS 15215 (D. Md. 2004).
The court held that a company’s former employees who leave and form a corporation
providing the same services as the original company can be brought to court. However, the
newly formed corporation can not be a party because the corporation itself is not in violation of
the non-solicitation agreement. Court also held that a breach of fiduciary duty does not in itself
always bring about a tortious occurrence, but can easily lead to one.
Saks Fifth Avenue, Inc. v. James, Ltd., 630 S.E.2d 304 (Va. 2006).
The Virginia Supreme Court held a plaintiff must prove two primary factors when
calculating damages caused by violation of a non-compete agreement. First, the plaintiff must
establish a connection between the wrongful act and the damages. Secondly, plaintiff must
prove that these damages have a factual foundation and are properly calculated. In this case, the
court held that damages resulting from a salesman’s departure for his employer’s competitor
must be calculated based upon the loss of business due to the salesman employment with the
competitor and not just the departure of the salesman.
Omniplex World Serv. Corp. v. US Investigations Serv., Inc., 618 S.E.2d 340 (Va. 2005).
Judge Lacy delivered the opinion of the court. A restrictive covenant between an
employer and an employee that stipulated that the employee could not work for a business that
was related in any way to the task for which the employee was hired was overbroad and
unenforceable.
Padco Advisors, Inc. v. Omdahl, 185 F. Supp. 2d 575 (D. Md. 2002).
Judge Chasanow delivered the opinion of the court. A non-competition agreement

between and employer and ex-employee is viable for the full time specified in the agreement.
Here the defendant violated the non-competition agreement for a period of four months before
the term specified in the agreement ended (twenty months). The court ordered an injunction
extending the non-competition agreement for additional four calendar months in order to ensure
the employer received the full time stated in the agreement.
Parr v. Alderwoods Group, Inc., 604 S.E.2d 431 (Va. 2004).
Judge Lacy wrote the opinion affirming and reversing in part the lower court’s decision.
Plaintiff lessee brought a claim against defendant lessor after the defendant began operating a
funeral home in violation of a non-compete clause in the lease. The defendant argued that the
94
plaintiff had violated one of the four agreements that had been signed contemporaneously with
the lease, that the agreements were integrated, and therefore plaintiff’s breach of one agreement
rendered all the agreements void. The lower court found that the agreements were integrated,
but enforced the restrictive covenant preventing defendant from operating a funeral home. The
court found that the lower court was correct in finding that the agreements were integrated, but
found that the lower court erred in enforcing the restrictive covenant. The court held that
plaintiff’s breach of the agreements rendered the entire agreement void and therefore the
restrictive covenants were not enforceable.
Cirrito v. Cirrito, 605 S.E.2d 268 (Va. Ct. App. 2004).
Judge Frank delivered the opinion of the court. Twelve days prior to the parties’
marriage, Mr. Cirrito signed a non-compete agreement with a telecom company whereby he
would be paid $1 million one year after the date of the agreement, provided he did not engage in
a competing business. Mrs. Cirrito contends that the payment is marital property and the trial
court’s treatment of the payout as separate property was erroneous. Because the money was not
awarded immediately at the signing of the non-compete agreement but was contingent on Mr.
Cirrito’s conduct during the course of the coming year – the time in which he was married – the
money was in effect earned while he was married and thus should be treated as marital property
under Virginia statute. The court noted that severance agreements were analogous to such a non-
compete agreement in the instant case, and that it had addressed in Luczkovich v. Luczkovich,
496 S.E.2d 157 (Va. 1998), the criteria to determine whether severance pay is marital or separate
property. Luczkovich was a case of first impression in Virginia, and it cited a multitude of cases
in other states that focused on “whether the severance pay was intended to compensate the
employee for efforts made during the marriage or to replace post-separation earnings.”
Lake Land Employment Group of Akron v. Columber, 804 N.E.2d 27 (Ohio 2004).
The Ohio Supreme Court held that a non-compete covenant executed by an at-will
employee at some point in time after he began working for the employer is nonetheless
enforceable and does not require any additional consideration.
Corporate Express Office Prods., Inc. v. Phillips, 847 So.2d 406 (Fla. 2003).
The Florida Supreme Court held that a successor employer could enforce non-compete
covenants that former employees had entered into with their original employers and that no
assignment was necessary. The successor employer acquired one company through a merger and
the other through a one hundred percent stock purchase agreement. An asset purchase would be
treated differently under Florida law. The court stated that “[w]here the corporations have truly
merged, a corporate tortfeasor by any other name is still a tortfeasor, to paraphrase Shakespeare.”
95
Olander v. Compass Bank, 363 F.3d 560 (5th Cir. 2004).
The Fifth Circuit affirmed in part and reversed in part the ruling of the Southern District
of Texas which had been sitting in diversity and applying Texas law to a provision in a stock
option plan that made enforceability of a non-compete agreement into a requirement for the stock
option plan to remain effective. The court of appeals found that the district court did not err in
holding that the non-compete agreement was unenforceable, because a non-compete “cannot, on
its own, form the consideration for an agreement” and it “must be ancillary” to a contract. The
lower court did err, however, in holding that the unenforceable non-compete agreement which
purported to “supersede” a prior agreement invalidated the same. Because the later agreement
was unenforceable, the prior agreement was restored and the court was reversed on these
grounds.
Application Group, Inc. v. Hunter Group, Inc., 1998 Cal. App. LEXIS 144 (Cal. Ct. App.1998).
The Court of Appeal of California affirmed a lower court decision that California and not
Maryland law applied to the validity of a covenant not to compete placed in employment
contracts of the out-of-state defendant corporation’s consultants, who also did not reside in
California, where a California employer sought to recruit and hire these same consultants. The
court held that the covenants could not be enforced against the plaintiff corporation that had
hired the defendant’s former consultant, who had been a resident of Maryland but was hired to
work in California. Despite the fact that a Maryland choice-of-law clause was in the contract
between the defendant and the consultant, the court held that California law applied, because the
covenant would restrict competition in California, thereby invoking the state’s interest I
protecting its own employers and business opportunities therewith. California jurisprudence has
shown that the policy against non-compete covenants in employment contracts is a “fundamental
policy” of the state. Further, California’s interests would be seriously impaired if Maryland law
were to trump in this matter, whereas the defendant could not show evidence that the consultant
in this case was performing “unique services” or would be able to “misuse trade secrets, routes,
or lists of clients,” the existence of which would show that Maryland’s interest would be
seriously impaired.
Modern Env’ts., Inc., v. Stinnett, 561 S.E.2d 694 (Va. 2002).
The plaintiff was party to a non-competition agreement with his former employer that
prohibited him from working with any of his former employer’s competitors in any capacity.
Plaintiff filed a declaratory judgment action to establish that the non-compete agreement was
overbroad and unenforceable. Defendants failed to present any evidence of any legitimate
business interest that is served by prohibiting the employee from being employed in any capacity
by a competing employer. Based on that record, the court affirmed the trial court’s decision that
the non-compete agreement was unenforceable.
96
Paramount Termite Control Co., Inc. v. Rector, 380 S.E.2d 922 (Va. 1989).
Judge Whiting delivered the opinion of the court. Employees argued that no
consideration was ever provided for their non-compete agreements because the agreements were
signed after they were already employed. The court, however, found consideration in the
employer’s decision to allow the employee’s access to sensitive information as an exchange for
the employees’ promises not to compete, though the employer could have terminated the
employees at its choosing.
Newport News Indus. v. Dynamic Testing, Inc., 130 F. Supp. 2d 745 (E.D. Va. 2001).
The court found that new employer could be vicariously liable under Virginia Uniform
Trade Secrets Act (“VUTSA”) for misappropriation of trade secrets by its employee, acting
within the scope of his employment. Even though the Act is silent whether respondeat superior
applies, the court found the VUTSA does not preempt, or specifically or impliedly reject the
doctrine. Thus, the court found “it is perfectly consistent to hold the employer liable for
infringing acts of its employees committed within the scope of employee’s scope of
employment.”
Cohoon v. Fin. Plans & Strategies, Inc., 760 N.E.2d 190 (Ind. Ct. App. 2001).
The court of appeals enforced non-compete that restricted financial planner from
soliciting the business of the employer’s clients with whom it did business during the 12 months
preceding plaintiff’s termination. Indiana courts disfavor non-competition clauses that seek to
protect the employer’s interest in past clients. The court found that clients who did business with
the company during the former employee’s tenure with the company constitute present, not past,
clients. Accordingly, the agreement sought to protect a legitimate, protectible interest. The court
went on to find the geographical restrictions to be a non-issue as, even if unreasonable, the
covenant was still enforceable using the class of persons with whom plaintiff could have no
contact. The court also found that plaintiff had breached the agreement before the employer’s
alleged material breach (i.e., failure to timely pay plaintiff for accrued and unused vacation
days), and thus the company’s alleged material breach did not bar enforcement.
Clark Substations, LLC v. Ware, 838 So.2d 360 (Ala. 2002).
The Alabama Supreme Court, relying heavily on Alabama statutory law, found that a
non-competition agreement with the plaintiff-employer’s predecessor was not enforceable. See
also Reynolds & Reynolds Co. v. Hardee, 932 F. Supp. 149 (E.D. Va. 1996) (non-compete
covenant was a part of a contract for personal services and not assignable under Virginia law),
aff’d, 133 F.3d 916 (4th Cir. 1997); Hart Conover, Inc. v. Hart, 1998 Va. Cir. LEXIS 288 (Va.
Fairfax Cir. Ct. 1998); Christian Def. Fund v. Stephen Winchell & Assocs., Inc, 1998 Va. Cir.
LEXIS 290 (Va. Fairfax Cir. Ct. 1998).
97
SIFCO Indus. Inc. v. Advanced Plating Tech., Inc., 867 F. Supp. 155 (S.D.N.Y. 1994).
The district court held that covenants not to compete were unenforceable where, upon
acquiring the company with whom the employees had entered into covenants, the successor
company terminated employees’ positions by closing factory at which employees worked.
Novacare Orthotics & Prosthetics E., Inc. v. Speelman, 528 S.E.2d 918 (N.C. Ct. App. 2000).
The court held that customer lists were not “trade secrets” where information would have
been easily accessible through a local telephone book.
Wade S. Dunbar Ins. Agency, Inc. v. Barber, 556 S.E.2d 331 (N.C. App. 2001).
The court held that a non-competition covenant in the original verbal employment
contract is supported by adequate consideration and the fact that the written contract was
executed after the employee started work is insignificant. In the instant case, the contract stated
that the employee acknowledges and agrees that the terms of the non-compete provision were
fully discussed and agreed upon prior to the date of execution and prior to the employee’s
commencement of work.
Mona Elec. Group, Inc. v. Truland Serv. Corp., 193 F. Supp. 2d 874 (E.D. Va. 2002).
Former employer sued a former employee’s new employer to enforce an agreement

signed by former employee not to solicit plaintiff’s customers for a year following his departure
from the company. Employee had worked for former employer, off and on, for some 30 years.
During the last of those years of employment, employee signed the non-solicitation agreement.
Prior to that time he had not been party to such an agreement. New employer, sued for tortious
interference with contract, argued that an element of such a claim was absent as the contract was
not valid because the continued employment is not adequate consideration. The court collected
authorities supporting and rejecting the argument. The Fourth Circuit and the Virginia Supreme
Court have not addressed the issue. The court rejected the holding from Maryland, Simko v.
Graymar, 464 A.2d 1104, 1107 (Md. 1983), which held that continued employment constitutes
adequate consideration for a restrictive covenant and instead adopted the holding of the West
Virginia Supreme Court, Pemco Corp. v. Rose, 257 S.E.2d 885, 889 (W. Va. 1979), which
predicted that Virginia would follow the holding in Kistler v. O’Brien, 347 A.2d 311 (Pa. 1975),
holding that continued employment, in and of itself, did not constitute consideration for the non-
competition covenant. The court emphasized that in the case before the court, unlike Simko, the
employer did not threaten the employee with termination if he failed to sign the restrictive
covenant.
98
First Allmerica Fin. Life Ins. Co. v. Sumner, 212 F. Supp. 2d 1235 (D. Or. 2002).
Oregon by statute makes non-competition agreements between an employer and an

employee void unless the agreement is entered into upon the initial employment of the employee
or the subsequent advancement of the employee. In First Allmercia, the court had to decide
whether a prohibition on inducing insurance policy holders to terminate or replace policies falls
within the definition of a non-competition agreement, and whether providing a severance
package and a favorable compensation formula as consideration for the non-compete constitutes
“bona fide advancement.” The court held that the non-solicitation constituted a non-competition
agreement and the severance not to be “bona fide advancement.” Thus, as the agreement was not
executed at the inception of employment, it was not enforceable.
Keener v. Convergys Corp., 342 F.3d 1264 (11th Cir. 2003) aff’g in part 205 F. Supp. 2d 1374
(S.D. Ga. 2002).
The 11th Circuit held that the district court properly ruled that Georgia law did
not allow the enforcement of a non-compete provision. However, the 11th Circuit ruled
that the district court could not declare the non-compete provision unenforceable in any
other jurisdiction as Georgia can only decide what is in the best interests of its citizens
inside the state boundaries.
Advance Tech. Consultants, Inc. v. RoadTrac, LLC, 551 S.E.2d 735 (Ga. 2001).
The court held that Georgia does not employ the “blue pencil” doctrine of severability in
restrictive covenant cases. Thus, an overbroad non-compete or non-solicitation covenant in a
contract being strictly scrutinized automatically renders unenforceable other non-solicitation or
non-compete covenants in the same agreement. See also Keener v. Convergys Corp., 205 F.
Supp. 2d 1374 (S.D. Ga. 2002); Morgan Stanley DW, Inc. v. Frisby, 163 F. Supp. 2d 1371,
1377-78 (N.D. Ga. 2001).
Francorp, Inc. v. Siebert, 126 F. Supp. 2d 543 (N.D. Ill. 2000).
Where the plaintiff-employer failed to pay employees in a timely fashion, said failure
constitute a material breach of the employment relationship and accordingly the employer could
not enforce the restrictive covenants against the former employees. The court based its holding
on the general principle that a material breach of contract by one party excuses non-performance
on the part of the non-breaching party.
99
Moore v. Kulicke & Soffa Industries, Inc., 318 F.3d 561 (3d Cir. 2003).
The court of appeals affirmed a lower court judgment, holding that independent
development by a defendant was not of itself an affirmative defense against a trade secret claim,
but that it did shift the burden to the plaintiff to prove that there was no independent
development. One judge concurred in the judgment only, holding that independent development
and use of a trade secret were “mutually exclusive,” but that the trade secret claim had already
failed on other grounds.
Rencor Controls, Inc. v. Stinton, 230 F. Supp. 2d 99 (D. Me. 2002).
The court denied a motion for a company’s preliminary injunction against a former sales
representative from joining a competitor company, holding that the former representative’s
knowledge of the company’s pricing structure would not lead to irreparable injury when the
former representative returned all pricing software to his former employer.
Inevitable Disclosure Doctrine in Non-Compete Litigation
CMI Int’l, Inc. v. Intermet Int’l Corp., 649 N.W.2d 808 (Mich. Ct. App. 2002).
Auto parts manufacturer sued competitor and former chief technical officer for, inter alia,
threatened misappropriation of trade secrets, relying on the inevitable disclosure concept. The
court held that, assuming the concept was encompassed within the notion of “threatened
misappropriation,” the party must establish more than the existence of generalized trade secrets
and a competitor’s employment of the party’s former employee who has knowledge of the trade
secrets. Otherwise, the concept would compromise the right of employees to change jobs.
Nw. BEC-Corp v. Home Living Serv., 41 P.3d 263 (Idaho 2002).
Former employer sued former employee and her new employer for misappropriation of
trade secrets. Defendants established that plaintiff’s loss of 90 customers following former
employee’s departure was not a result of a misappropriation. In strong language, the court stated
that the legislature did not intend that the mere hiring of a competitor’s employee constitutes the
acquisition of a trade secret. Further, the court said:
An employee will naturally take with her to a new company the skills, training,
and knowledge she has acquired from her time with her previous employer. This
basic transfer of information cannot be stopped, unless an employee is not
allowed to pursue her livelihood by changing employers. As Judge Shadur stated,
‘[a]ny other rule would force a departing employee to perform a prefrontal
100
lobotomy on himself or herself.” Fleming Sales Co., Inc. v. Bailey, 611 F. Supp.
507, 514 (N.D. Ill. 1985).
Aware, Inc., v. Ramirez-Mireles, 2001 Mass. Super. LEXIS 221 (Mass. 2001).
Applying California law, the court stated:
What is clear, however, is that in a conflict between the policy favoring employee
mobility free of encumbering restriction and the policy favoring protection of
trade secrets, employee mobility prevails in California. The theory of ‘inevitable
disclosure’ of trade secrets is not the law of California. See Bayer Corp. v. Roche
Molecular System, Inc., 72 F. Supp. 2d 1111, 1112 (N.D. Cal. 1999).
City Slickers, Inc. v. Douglas, 40 S.W.3d 805 (Ark. Ct. App. 2001).
The dissent, faulting the majority for failing to address the inevitable disclosure theory,
stated:
The majority failed to address this issue, but the inevitable disclosure inquiry is a
factual inquiry that may include consideration of the similarity of the employee’s
new job to the position he held with his former employer and consideration of
whether or not he exhibited a lack of compunction about using his former
employer’s proprietary information to gain an unfair tactical advantage. The
inevitable disclosure principle seems squarely applicable here, as it is difficult to
conceive of how appellee, with no prior experience in the automotive oil changing
industry, could operate an on-site oil changing facility after a mere six weeks of
training without misappropriating the information provided by City Slickers.
Schlage Lock Co. v. Whyte, 2002 Cal. App. LEXIS 4634 (Cal. Ct. App. 2002).
The court, collecting cases pro and con, emphatically stated that its “rejection of the
inevitable disclosure doctrine is complete.” The court found
[t]he chief ill in the covenant not to compete imposed by the inevitable disclosure
doctrine is its after-the-fact nature: The covenant is imposed after the employment
contract is made and therefore alters the employment relationship without the
employee’s consent. When, as here, a confidentiality agreement is in place, the
inevitable disclosure doctrine “in effect convert[s] the confidentiality agreement
into such a covenant [not to compete].” Or, as another federal court put it, ‘[a]
court should not allow a plaintiff to use inevitable disclosure as an after-the-fact
non-compete agreement to enjoin an employee from working for the employer of
his or her choice.’ Del Monte Fresh Produce Co. v. Dole Food Co., Inc., supra
101
148 F. Supp. 2d 1326, 1337 (S.D. Fla. 2001) ; see also Matheson, Employee
Beware: The Irreparable Damage of the Inevitable Disclosure Doctrine (1998) 10
Loyola Consumer L. Rev. 145, 162.
Gov’t Tech. Servs., Inc. v. Intellisys Tech. Corp., 1999 Va. Cir. LEXIS 502 (Va. Fairfax Cir. Ct.
1999).
The Fairfax County Circuit Court held that Virginia does not recognize the inevitable
disclosure doctrine as it relates to confidential information.
Severance Pay
Luczkovich v. Luczkovich, 496 S.E. 2d 157 (Va. Ct. App. 1998).
Whether severance pay is properly classified as marital or separate property is an issue of

first impression for the State of Virginia. The husband successfully argued that his severance
pay should be classified as separate property because it was paid two years after the dissolution
of his marriage to his wife and was not rendered as compensation for work provided to his
employer during the term of his marriage. When the marriage partnership ends prior to
termination of employment and the right to severance pay was not established during the term of
the marriage, severance pay is properly classified as separate property. See Biddlecom v.
Biddlecom, 113 A.2d 66 (N.Y. App. Div. 1985) (divorce action commenced prior to the right to
receive severance pay, thus severance pay is separate property).
Franklin v. Franklin, 859 P.2d 479 (N.M. Ct. App 1993).
Severance pay received after divorce as compensation for future earnings is separate
property. Husband and wife were divorced when the Husband was 52 years old. He had been
working for his company for almost 24 years, a factor the company used in computing his
retirement plan. Husband retired five and a half years later when he had put in 29.5 years at the
company. He retired because the company eliminated his job; he accepted their severance
package. Wife received compensation from the retirement package calculated from time served
at the date of divorce, but she sued to recover for Husband’s total time spent at the company.
The court found for Husband, saying that Husband’s post-divorce salary increases resulted from
his singular efforts and were not tied to the marriage, despite Wife’s reliance on a case stating
that Wife should have a community interest in the pay increases because the time spent at the job
while married was foundational to these later successes. See Fondi v. Fondi, 802 P.2d 1264
(Nev. 1990); cf. In re Holmes, 841 P.2d 388 (Colo. Ct. App. 1992). The severance pay was
properly characterized as separate property as neither party relied on the package during the
marriage.
102
In re Holmes, 841 P.2d 388 (Colo. Ct. App. 1992).
Severance pay is predicated on the loss of income that comes from termination, though
the amount paid may be determined by the time spent at the job occurring during the same
timeframe as the marriage.
Brotman v. Brotman, 528 So. 2d 550 (Fla. Dist. Ct. App 1988).
Severance pay and earned vacation received after separation but before dissolution of the
marriage was acquired during the marriage and is thus marital property.
In re Marriage of Bishop, 729 P.2d 647 (Wash. App. 1986).
Severance pay is separate property but is not the same as deferred compensation because
the primary purpose of severance pay is to ease the transition between jobs when such a
transition stems from an unforeseen dismissal. If dismissal happens prior to the dissolution of
the marital union, then it is marital property; if dismissal happens after the split, it is properly
given wholly to the spouse who was terminated because before dismissal the receipt of monies
for severance pay was only an expectation and too speculative to be considered an asset.
Trespass to Chattels
Intel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003).
The dissent stated that Intel seeks to modify the common law “in a way that alters the
doctrine’s very character in order to extend it where the Legislature has not yet gone.” The
Supreme Court of California reversed the appellate decision, holding that Intel was not entitled
to an injunction based upon a theory of trespass to chattels because a former employee who
flooded the employer’s email system “did not encompass electronic communications that neither
damaged the recipient computer system nor impaired its functioning,” and that using a portion of
the employer’s computer space was not an injury to the employer’s interest in its own computers,
which would be required to maintain a trespass to chattels claim.
103
Breach of Fiduciary Duty/ Duty of Loyalty
Dalton v. Camp, 548 S.E.2d 704 (N.C. 2001).
The Supreme Court of North Carolina held that an at-will employee, a company
production manager, was not in a position to exercise dominion over the employer, and thus no
claim for breach of fiduciary duty lies as North Carolina has specifically limited the claim in the
employment context. The court held that, outside the purview of a fiduciary relationship, North
Carolina does not recognize an independent tort for breach of duty of loyalty by an at-will
employee.
Feddeman & Co., C.P.A., P.C. v. Langan & Assocs., P.C., 530 S.E.2d 668 (Va. 2000).
The court affirmed a $3.3 million verdict against a group of employees who left their
accounting firm to work for a competitor, luring away clients. This breach of fiduciary duty
occurred despite the lack of non-compete agreements between the employees and the employer.
Normally, employees not bound by non-compete agreements are free to make arrangements with
future employers to compete against their current employer. However, this is not absolute, and
in some circumstances the exercise of this right may constitute a breach of fiduciary duty. See
Restatement (Second) of Agency § 391, comment 1 (1957). In the instant case, 25 of an
organization’s 31 employees resigned when the organization failed to comply with their
proposed buyout. The jury, instructed that employees are to exercise good faith and not act
detrimentally to the interests of the company, returned the above verdict.
Gov’t Tech. Servs. Inc v. Intellisys Tech. Corp., 1999 Va. Cir. LEXIS 502 (Va. Fairfax Cir. Ct.
1999).
The court held that “[s]olicitation by an employee of other employees all employed ‘at
will’ to leave their employer and join a competitor constitutes a violation of fiduciary duty and is
actionable.”
Froelich v. Erickson, 96 F. Supp. 2d 507 (D. Md. 2000).
The court recognized, without deciding the question, that there is a split of authority
whether Maryland recognizes as an independent tort a cause of action for breach of fiduciary
duty.
104
Weltzin v. Nail, 618 N.W.2d 293 (Iowa 2000).
The court held: “A breach of fiduciary duty claim is not an individual tort in its own right
at common law.”
Williams v. Dominion Tech Partners, LLC, 576 S.E. 2d 752 (2003).
At common law, an employee, even an at-will employee, owes a fiduciary duty of loyalty
to his employer during the term of his employment. Incorporated within this general duty is the
more narrow duty that the employee not compete with his employer during the course of his
employment. The employee, however, is allowed to arrange with potential future employers to
compete with his present employer once his employment ceases. This is subject to any
restricting language in the employment contract with his current employer, but it is also subject
to a public policy restriction: “this right, based on a policy of free competition, must be balanced
with the importance of the integrity and fairness attaching to the relationship between employer
and employee.”. Thus, this right, if exercised in certain situations, may result in a breach of the
fiduciary duty between employer and employee, but this may only be determined on a case by
case analysis. The existence of a fiduciary duty is a question of law to be determined by the trial
court, but the fact that an employee’s conduct caused harm to the employer is not dispositive of a
breach of a fiduciary duty. In the instant case, an employee marketed himself to a firm willing to
pay more for his services, and the employee departed in such a way that his former employer was
able to maintain its contracts; hence, the court found no breach of fiduciary duty to his former
employer.
In Williams, a computer consultant employed at-will by a placement firm was placed at a
tool manufacturer through an employee brokerage firm. When he resigned and worked for the
tool manufacturer through the employee brokerage firm, the placement firm sued the consultant
for breach of fiduciary duty, tortious interference with business relationship and business
conspiracy. The court held that the consultant did not breach his fiduciary duty to the placement
firm even though he had terminated his employment with the placement firm based on the high
probability that his services would still be needed by the tool manufacturer. The consultant
timed his resignation so that the placement firm would meet all its contractual obligations to the
employee brokerage firm; the consultant and the brokerage firm did not have a non-compete
agreement with the placement firm.
Exclusivity of Workers Compensation
McGregor v. Grimes, 884 A.2d 605 (D.C. 2005).
Judge Steadman wrote the opinion affirming the lower court’s grant of summary
judgment for the defendant. The plaintiff brought a claim for damages stemming from a
workplace accident caused by defendant/fellow employee’s negligence under the D.C. Workers
105
Compensation Act. Both plaintiff and defendant were employed by a Maryland employer, and
plaintiff was injured while working on a job site in the District of Columbia. The plaintiff
collected compensation from the employer under the Maryland Worker’s Compensation Act, and
then sought to also collect from the employee. Because the accident occurred in D.C. the action
was under the DCWCA which has an exclusivity provision that prevents an injured employee
from collecting from both the employer and the employee who caused the injury. The plaintiff
argued that the DCWCA did not apply because the company and the employees were from
Maryland which allows an injured worker to collect from both the employer and the negligent
employee. The court held that the DCWCA did apply, and therefore because the plaintiff had
already collected benefits from the employer he was not entitled to sue the defendant as well.
Farmers Bros. Coffee v. Workers’ Comp. Appeals Bd., 2005 Cal. Wrk. Comp. LEXIS 311 (Cal.
Ct. App. 2005).
The Second District Court of Appeal of California held that illegal immigrants are
entitled to worker’s compensation benefits. The court found that federal immigration laws did
not preempt state workers’ compensation laws, minimum wage laws, or occupational health and
safety protection laws.
Hanford v. Plaza Packaging Corp., 811 N.E.2d 30 (N.Y. 2004).
The Court of Appeals of New York followed the precedent set in Maines v. Cronomer
Valley Fire Dept., 50 N.Y.2d 535 (1980), and held that an intentional tort action is not barred by
receipt of workers’ compensation benefits where the plaintiff and defendant both worked for the
same employer but the defendant’s tortious misconduct arose from personal motives and not in
furtherance of employer business. Therefore, the exclusivity provisions of New York Workers’
Compensation Law § 29(6) is not violated when an intentional tort action is brought if the
tortfeasor was acting outside the scope of his employment.
Estate of Harris v. Papa John's Pizza, 679 N.W.2d 673 (Iowa 2004).
The Iowa Supreme Court ruled that an employer is insulated from almost all other claims
when an employee who is covered by workers’ compensation is injured on the job. Therefore
plaintiff, decedent workers’ estate, could not file additional claims against defendant employer
for the negligent actions that lead to plaintiff’s death.
Peterson v. Arlington Hospitality Staffing, Inc., 689 N.W.2d 61 (Wis. Ct. App. 2004).
The Wisconsin Court of Appeals held that the Wisconsin Workers’ Compensation Act
(WCA) barred plaintiff employee from bringing a civil claim for a sexual assault against
defendant employer for hiring an employee with a history of sexual assault. The Court stated
106
that no public policy exception to the WCA existed, and that the court did not have the authority
to create one.
Coolidge v. Riverdale Local Sch. Dist., 797 N.E.2d 61 (Ohio 2003).
In this Ohio case, a school teacher was assaulted and seriously injured by one of her
students. She remained off work after the incident and was collecting temporary total disability
compensation under the Workers’ Compensation Act. The teacher was discharged from her
position due to absenteeism after she exhausted her options for leave. Discharge for the
absenteeism was characterized as discharge for “other good and just cause” by the school
district. The Ohio Supreme Court held that her absence and inability to work were due entirely
to a work-related injury for which she was receiving ongoing temporary total disability
compensation and her discharge constituted a violation of public policy. Therefore the discharge
was without “good and just cause” under Ohio Rev. Code Ann. § 3319.16. Thus, the Ohio
Supreme Court held that an employee who is receiving temporary total disability compensation
may not be discharged solely for absenteeism or inability to work when the absence or inability
is directly related to the condition for which disability compensation is being awarded.
Pickett v. Colonel of Spearfish, 209 F. Supp. 2d 999 (D.S.D. 2001).
Relying on Benson v. Gable, 593 N.W.2d 402 (S.D. 1999), and the fact that South
Dakota has recognized two categories of compensable emotional injuries under its workers’
compensation law (i.e., mental-physical and physical-mental, but not mental-mental), the court
held that plaintiff’s claims of negligent retention, negligent supervision, battery, and intentional
infliction of emotional distress were barred by exclusivity of the workers’ compensation law,
despite plaintiff’s allegations of sexual assault and rape, physical-mental injuries.
Diaz v. Comerica Bank, 2002 WL 181778 (Mich. Ct. App. 2002).
The court of appeals found that plaintiff had not sufficiently alleged an intentional tort to
avoid the exclusive remedy provision of the Michigan Workers Compensation Act. Plaintiff
sued on behalf of a bank employee who was shot to death by a gunman at the branch at which
the deceased was employed. Relying upon the definition of an intentional tort set forth in
Palazzola v. Karmazin Prods. Corp., 565 N.W.2d 868 (Mich. 1997), decedent’s representative
had failed to satisfy that test as there was not a sufficient showing that bank managerial
employees were aware of the gunman’s violent tendencies and did not have actual knowledge of
the extent of the threat posed by the gunman.
107
Archer v. Farmer Bros. Co., 70 P.3d 495 (Colo. App. 2002).
Plaintiff, an employee of defendant for 22 years, while under investigation for alleged
misconduct, had delivered to him a termination notice while he lay in bed recuperating from a
heart condition. Plaintiff sued, inter alia, on a claim of intentional infliction of emotional
distress, and the jury returned a verdict in plaintiff’s favor. The defense, before the court of
appeals, contended that the IIED claim should have been precluded by the state workers
compensation act which barred claims that arose when “the employee is performing service
arising out of and in the course of the employee’s employment.” The court agreed that the
delivery of the termination notice arose out of the plaintiff’s employment, but found that the
injury did not occur “in the course of” his employment. As the plaintiff was on indefinite sick
leave as a result of his heart condition when he was discharged , plaintiff was not engaged in
work-related activity, and the incident did not occur within the time or space parameters of his
employment; rather he was resting in bed, an activity unrelated to his employment.
Perodeau v. Hartford, 792 A.2d 752 (Conn. 2002).
The Connecticut Supreme Court addressed the question whether a claim of negligent
infliction of emotional distress, which is not compensable under the Connecticut worker’s
compensation law, is nonetheless barred by the exclusivity provisions of that law. The court
held that when an injury is expressly excluded from coverage under the law, the employee’s right
to pursue a common law remedy for the injury is not compromised. Nonetheless, the court went
on to hold that one may not be found liable for negligent infliction of emotional distress arising
out of conduct occurring within a continuing employment context, as distinguished from conduct
occurring in the termination of employment as “the societal costs of allowing claims for
negligent infliction of emotional distress in the context of ongoing employment are unacceptably
high.”
Karch v. Baybank FSB, 794 A.2d 763 (N.H. 2002).
Plaintiff sued defendant as a result of interception of telephone conversations between

plaintiff and a co-worker. Plaintiff sued, inter alia, for negligent infliction and intentional
infliction of emotional distress. The court found that, as a general rule, a negligence claim for
personal injuries arising out of or in the course of employment is barred by the workers
compensation act’s exclusivity provision. In addition, the court found under the then applicable
law the type of injury that was the basis for the IIED claim was compensable under the workers
compensation act and thus also barred by the exclusivity provision. The court recognized that,
under a recent amendment to that act, the claim might not be compensable and therefore the
result might be different in such a case in the future.
108
Livitsanos v. Superior Court, 828 P.2d 1195 (Cal. 1992).
The California Supreme Court held that if the injury arises out of employment and if the
employer maintains workers’ compensation insurance, then “claims for intentional or negligent
infliction of emotional distress are preempted by the exclusivity provisions of the workers’
compensation law.” See also Walker v. Boeing Corp., 218 F. Supp. 2d 1177, 1189 (C.D. Cal.
2002).
Worthington v. City of New Haven, 1999 U.S. Dist. LEXIS 16104 (D. Conn. 1999).
The court declined to apply the “comp bar” to a claim under the state anti-discrimination
statute. See also Davis v. Dillmeier Enters, Inc., 957 S.W.2d 155 (1997); Moorpark v. Superior
Court, 77 Cal. Rptr. 2d 445 (Cal. 1998), Hardaway Mgmt. Co. v. Southerland, 977 S.W.2d 910
(Ky. 1998); Byers v. Labor & Indus. Review Comm., 561 N.W.2d 678 (Wis. 1997);
Konstantopoulous v. Westvaco Corp., 690 A.2d 936 (Del. 1996); Goodman v. Boeing Co., 899
P.2d 1265 (Wash. 1995), Byrd v. Richardson-Greenshields Sec., Inc., 552 So.2d 1099 (Fla.
1989); King v. Bangor Fed. Credit Union, 568 A.2d 507 (Me. 1989). Some courts have held that
settlement of a workers’ compensation claim bars a state law disability discrimination claim.
See, e.g., Karst v. F.C. Hayer Co., Inc., 447 N.W.2d 180, 184-186 (Minn. 1989).
Newman v. Giant Food, Inc., 187 F. Supp. 2d 524 (D. Md. 2002).
The court held that claim for negligent hiring and retention were precluded as workers’
compensation was the exclusive remedy unless the employer deliberately intended to injure or
kill the employee.. See also, Demby v. Preston Trucking Co., 961 F. Supp. 873, 881 (D. Md.
1997); Tynes v. Shoney’s Inc., 867 F. Supp. 330, 332 (D. Md. 1994).
Statute of Frauds
Schara v. Commercial Envelope Mfg. Co., Inc., 321 F.3d 240 (1st Cir. 2003).
Where a former employee sued for three years of bonus payments in the absence of a
written agreement with the employer regarding such payments, the Statute of Frauds
nevertheless did not apply, according to the First Circuit, under New York state law. While
“New York law does not allow termination provisions solely within the control of the plaintiff to
remove an agreement from the scope of the one-year provision” of the Statute of Frauds, state
jurisprudence has long held that when “the right to terminate [a contract] within a year is in the
hands of the defendant,” the agreement is outside the Statute.
109
Conner v. Lavaca Hosp. District, 267 F.3d 426 (5th Cir. 2001).
The court found that a motion of the defendant’s board of directors contained a three-year
term of employment, thus placing it squarely within Texas’ statute of frauds which states that a
promise that is not performable within a year of its inception must satisfy the statute of frauds.
To satisfy the statute of frauds and thus be enforceable, the oral agreement must be evidenced by
“a written memorandum which is complete within itself in every material detail, and which
contains all of the essential elements of the agreement, so that the contract can be ascertained
from the writings without resorting to oral testimony.". The court found that two essential
elements were not set forth in the board’s motion, i.e., the attribution of revenues and the
doctor’s schedule. The plaintiff then argued that part performance took the contract out of the
statute of frauds. But, as the defendant had repudiated the board’s motion within days thereafter,
plaintiff could not have relied on the earlier, non-repudiated, promise and reliance is a requisite
element for the equitable doctrine of part performance.
Labrecque v. Sunbird Boat Co. Inc., 873 F. Supp. 946 (D. Md. 1994).
“A contract otherwise falling under the Statute of Frauds may nevertheless be enforceable
when there is an admission by the opposing party that the contract was indeed formed.”
Hodge v. Evans Fin. Corp., 823 F.2d 559 (D.C. Cir. 1987).
A defendant corporation hired the plaintiff to serve as general counsel under an oral
agreement, where the plaintiff claims that the defendant and he agreed to permanent
employment. The defendant terminated the plaintiff after about nine months of service. The
plaintiff sued for breach of employment contract and won a jury award. The defendant, inter
alia, had moved for a jury instruction on the ground that an oral employment contract is
unenforceable under the Statute of Frauds. The court denied this motion and the defendant
appealed. The United States Court of Appeals for the District of Columbia Circuit, in an opinion
by Judge Wald, held that though the one-year provision of the statute is to be construed
narrowly, the contract was not barred because the contract was capable of being performed in
one year, were the employee to die within that time period. Judge MacKinnon dissented from
the majority, stating that “simply because a contract may be discharged within one year does not
take the contract outside the statute.” Judge MacKinnon made a distinction between
performance and excuse, stating that the plaintiff’s death within a year would constitute an
excuse for not performing the contract rather than a performance of the permanent employment
contract within one year.
110
Arbitration
Campbell v. General Dynamics, 407 F.3d 546 (1st Cir. 2005).
The First Circuit Court of Appeals held a company-wide email did not provide
“minimally sufficient notice to a reasonably prudent employee,” nor did it directly state that the
email was establishing a mandatory arbitration agreement that would be the exclusive remedy for
all employee claims.
Hubner v. Cutthroat Commc’ns, Inc., 80 P.3d 1256 (Mont. 2003)
The Montana Supreme Court declined to require arbitration of a wrongful discharge

claim where the plaintiff had signed an employee handbook containing a binding arbitration
clause at the time she was hired. The court declined to enforce the arbitration clause because the
handbook was ambiguous. The handbook contained a statement in a number of locations that it
was not a contract, including such a contractual disclaimer in the acknowledgement form. On the
other hand, the handbook immediately before the arbitration provision referred to the handbook
as “this contract.”
Heye v. Am. Golf Corp., Inc., 80 P.3d 495 (N.M. Ct. App. 2003).
The New Mexico Court of Appeals declined to enforce an arbitration provision that
allowed the employer to opt out of arbitration at any time. The employer’s handbook contained
an arbitration provision providing that the employee agreed to resolve any disputes arising out of
her employment in arbitration and that the employer reserved the right to amend, supplement,
rescind or revise any policy, practice or benefit described in the handbook as it deemed
appropriate.
DeArmond v. Halliburton Energy Services, Inc., 81 P.3d 573 (N.M. Ct. App. 2003).
The New Mexico Court of Appeals held that an employee was not bound by the
employer’s new arbitration policy absent a showing that he received and read the policy
materials that were mailed to his home. The court held that the employer must show that the
employee actually knew of the employer’s offer to arbitrate and its intention that his continued
employment would constitute acceptance of this offer. The court said: “we believe the principle
of conscious assent is particularly crucial in the at-will employment context, where acceptance
may be manifested by continuing in a routine activity.” The court went on to say that acceptance
of the agreement must be “clear, positive and unambiguous”.
Cheek v. United Healthcare of the Mid-Atlantic, Inc., 835 A.2d 656 (Md. 2003).
111
The Maryland Court of Appeals, in reversing the lower court, answered in the negative
the question as to “whether a valid and enforceable arbitration agreement exists between an
employer and an employee when the employer has reserved the right to, within its sole
discretion, alter, amend, modify, or revoke the arbitration agreement at any time and without
notice, even thought it has not exercised that option….” Such an agreement was found to be
unenforceable for lack of consideration as the employer’s promise to arbitrate was illusory.
Judge Harrell in dissent argued inter alia that the entire employment contract was supported by
consideration and that there was no indication that the arbitration agreement was severable from
the contract as a whole. The highest court, according to Judge Harrell, should have enforced the
arbitration agreement, as it is preferable to construe a contract in favor of its enforcement.
Barnica v. Kenai Peninsula Borough Sch. District, 46 P.3d 974 (Alaska 2002)
An evenly divided (2-2) Alaska Supreme Court affirmed the lower court’s holding that
plaintiff was required to pursue his state statutory discrimination claim through binding
arbitration under the applicable collective bargaining agreement. The plurality and the dissent
dueled over the United States Supreme Court’s decisions in Wright v. Universal Maritime Serv.
Co., 525 U.S. 70 (1998), and Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).
In re Halliburton Co., 80 S.W.3d 566 (Tex. 2002).
The Texas Supreme Court held that plaintiff’s claim of race and age discrimination under
the state anti-discrimination law must be submitted to arbitration. The court found that the
employee’s continuing to work for employer after it announced the adoption of its Dispute
Resolution Program constituted an acceptance. The court found the disparity in bargaining
power did not render the arbitration provision unconscionable. The court, rejecting earlier state
precedent, found that the courts may consider both procedural and substantive unconscionability
of an arbitration clause in evaluating the validity of same.
Gibbs v. PFS Investments, Inc., 209 F. Supp. 2d 620 (E.D. Va. 2002).
Judge Smith delivered the opinion of the court. Plaintiff applied for employment with
defendant employer, a securities broker-dealer. To be fully licensed as a trader, plaintiff had to
fill out a U-4 form, a form that asked about prior felony charges and convictions. Plaintiff
represented that he had no prior convictions or charges. However, plaintiff had previously pled
guilty to aggravated assault; he refused to amend his U-4 to reflect this, and defendant allowed
plaintiff to resign from his post. Defendant filed a U-5 form whereby the reasons for plaintiff’s
departure were noted. Plaintiff sued, saying the U-5 form was malicious, slanderous, and
defamatory. The issue in this case concerns arbitration, for plaintiff’s application for
employment and the U-4 form stipulated that disputes would be resolved with good faith
negotiation or, if that fails, binding arbitration. The court found that the U-4 form’s filing with a
112
trade association constituted interstate commerce and brought the arbitration clause in the U-4
under federal law pursuant to 9 U.S.C. § 2, the Federal Arbitration Act.
However, the court’s inquiry does not end there. Two requirements must be met in order
to grant defendant’s motion to compel arbitration. First, the existence of a binding arbitration
agreement between the parties must be established. Second, the dispute between the parties must
fall within the scope of the arbitration agreement. To challenge the first, the party seeking to not
be bound by the arbitration agreement must prove a deficiency with either the agreement or the
underlying contract for employment to render the agreement nugatory. The court, satisfied that
no triable issue of fact exists with regard to the validity of the agreement, then moved to consider
whether the dispute at hand fell within the scope of the arbitration agreement. Plaintiff’s claims
fell within the broad scope of the arbitration agreement – any “dispute, claim or
controversy...arising out of the employment or termination of employment...shall be arbitrated.”
Thus, the court granted defendant’s motion to compel arbitration. Interestingly, defendant
moved the court for an award of attorney’s fees, but the arbitration agreement between the
parties included disputes over the award of attorney’s fees; the court summarily shot down
defendant’s motion in light of the major ruling in the case.
Marie v. Allied Home Mortgage Corp., 402 F.3d 1 (1st Cir. 2005).
The employer appeals the district court’s denial of its motion to compel arbitration. Per
the employee’s contract of employment, any claims or disputes arising from the employee’s
employment could be resolved by arbitration if so instigated within sixty days of the offending
event. More than sixty days after the EEOC concluded its investigation, the employee filed a
Title VII complaint. The employer sought to initiate arbitration within sixty days of the filing of
the complaint, so it adhered to the contractual language; the court reversed the lower decision
and upheld the employer’s motion to compel arbitration.
Fleck v. E.F. Hutton Group, Inc., 891 F.2d 1047 (2d Cir. 1989).
Chief Judge Oakes delivered the opinion of the court. Petitioner Fleck alleged that
respondent Hutton committed libel, slander, portrayal in a false light, and conspiracy to commit
tortious interference with prospective business relationships after petitioner left respondent
company. The trial court, citing an earlier Second Circuit decision, Coudert v. Paine Webber
Jackson & Curtis, 705 F.2d 78 (2d Cir. 1983), denied petitioner’s motion to compel arbitration
and stay the litigation pending arbitration. The Second Circuit overturned its decision in Coudert
in the instant case finding it too restrictive. Coudert focused on the timing of the torts and
whether they fell within or beyond the time the employee was employed by his or her company.
Thus, Coudert, “insofar as it implied that no torts committed after employment ends are
arbitrable, missed the mark,” though the court refused to say that the timing of the torts is
completely irrelevant. In the instant case, the comments could only have been made after
termination – they were on the U-5 form – and they were made in communications that the
employer would foreseeably make after an employee’s termination. The court found that the
controlling language of New York Stock Exchange Arbitration Rule 347 would allow a
113
reasonable applicant, such as petitioner, to expect arbitration of claims regarding tortious conduct
committed in foreseeable post-termination communications. However, the court draws another
line by disallowing the arbitration of some torts, such as an unprovoked insult, for which
employment was a but-for cause of the distaste and hence the tort.
Eaton Vance Distrib., Inc. v. Ulrich, 692 So.2d 915 (Fla. Dist. Ct. App. 1997).
The court held that defamatory statements made on a Form U-5 (Uniform Termination
Notice for Securities Industry Registration) are not subject to an absolute privilege. The
statements are actionable, subject only to a qualified privilege.
The court also held that employers may not barter in exchange for “favorable wording”
on a Form U-5, as the purpose of a Form U-5 is truthful disclosure.
Morgan v. Smith Barney, Harris Upham & Co., 729 F.2d 1163 (8th Cir. 1984).
Judge Gibson delivered the opinion of the court. When hired, Mr. Morgan completed
and submitted a U-4 form for membership in the New York Stock Exchange and other
organizations. Rule 347 of the NYSE Arbitration Code provides that “any controversy...arising
out of the employment or termination of employment...shall be settled by arbitration.” Two
years after Mr. Morgan left respondent employer, employer told customers that they were
investigating Mr. Morgan’s bookkeeping and as a consequence the NYSE Division of
Enforcement and the Missouri Securities Commission investigated him, resulting in the loss of
professional opportunity. The court states two principles relevant in resolving this matter. First,
parties may only be bound to arbitration if they agree to it by contract. Second, when contractual
language is unclear, a recognition of the federal policy favoring arbitration mandates that
questions regarding the scope of arbitration be resolved in favor of arbitration. The court cites
Coudert v. Paine Webber Jackson & Curtis, 705 F.2d 78 (2d Cir. 1983), as an example of the
applicability of Rule 347 to non-commercial torts. The court, however, criticized the Second
Circuit’s decision, finding it full of “serious weaknesses” and too constrained by its “rigid
temporal approach” to arbitration under Rule 347. . The court believes that using the
aforementioned dual principle approach effectuates a more just outcome. It concluded that “the
language ‘arising out of’ contained in Rule 347 requires arbitration of tort as well as contract
claims which involve significant aspects of the employment relationship, including but not
limited to explicit contractual terms.” ( The court held the claims to be outside of the scope of
Rule 347. Mr. Morgan pushed for the non-arbitrability of his claims in part on the basis that he
would lose the ability to collect punitive damages if the claims were arbitrated, but the court was
unpersuaded, saying that the “potential unavailability of punitive damages is not a ground for
denying effect to an otherwise valid agreement to arbitrate
The court held that “an employer does not waive its right of arbitration by failing to
demand arbitration during an in process EEOC investigation.” To allow such a result, the court
held, would reduce the efficiency of the process by at times creating duplicative efforts through
both the courts and arbitration proceedings.
114
Nagrampa v. Mailcoups Inc., 401 F.3d 1024 (9th Cir. 2005).
The court affirmed that even though the plaintiff did not read the arbitration clause, she is
still bound by its terms. The question of whether or not the contract is a contract of adhesion is
an issue the arbitrator should answer before deciding upon the issue central to the arbitration.
Terrell v. Amsouth Inv. Servs., Inc., 209 F. Supp. 2d 1286 (M.D. Fla. 2002).
Plaintiff sued under the state whistleblower act. After removal to federal court, defendant
moved to compel NASD arbitration. The court found that the NASD Code of Arbitration
Procedure limited or precluded the statutory remedies otherwise available to the plaintiff under
the state whistleblower act, in accordance with Paladino v. Avnet Computer Techs., Inc., 134
F.3d 1054 (11th Cir. 1998), which requires for an arbitration agreement to be enforceable that it
permit the arbitrator to provide relief equivalent to the remedies available in court, and thus
motion to compel arbitration was denied.
Weinstein v. Equitable Life Assurance Soc’y, 1996 U.S. Dist. LEXIS 14327 (E.D. Pa. 1996).
The court reaffirmed that employment-related arbitration disputes do not fall under the
insurance business exception of the National Association of Securities Dealers’ Code of
Arbitration Procedure, which exempts from arbitration disputes involving the insurance business
of a member insurance company. Thus, an employment-related dispute, as opposed to a dispute
regarding the insurance business of the member, is arbitrable under the NASD Code.
Waterfront Marine Constr., Inc. v. N. End 49ers Sandbridge Bulkhead Groups A, B, and C, 468
S.E.2d 894 (Va. 1996).
Judge Lacy delivered the opinion of the court. Respondent, an unincorporated amalgam
of landowners wishing to develop a bulkhead on their land, contracted with petitioner to
construct said bulkhead. The agreement between the parties stipulated that any claim or
controversy “arising out of or relating to the Contract or the breach thereof” be arbitrated. The
court cited an United States Supreme Court decision stating that the absence of an unambiguous
agreement between the parties as to which matters should be submitted to arbitration is a bar to
arbitration because the parties may not have contemplated those matters might not be decided by
a court. See First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944-47 (1995).
Notwithstanding First Options and the Virginia Supreme Court’s adoption of the stance that
arbitration clauses concerning disputes “arising out of” or “related to” should be construed
broadly, the court in the present case found that respondent’s demand for a second arbitration to
enforce petitioner’s failure to comply with the first award neither arises out of nor is related to
the original contract; petitioner surely never contemplated that an arbitration panel would hear
such a topic normally reserved for the court systems.
115
Damages – Tax Consequences
Blaney v. Int’l Ass’n of Machinists & Aerospace Workers, 55 P.3d 1208 (Wash. Ct. App. 2002).
The court in an action under the state anti-discrimination law found that the tax
consequences to the plaintiff flowing from the lump sum payment of damages and attorney’s
fees was within the scope of the statutory term “actual damages”. A certified public accountant
had provided expert testimony, establishing that plaintiff would incur nearly a quarter of a
million dollars in tax obligations that she would not have incurred but for the awards. See also
Gelof v. Papineau, 829 F.2d 452 (3d Cir. 1987) (allowing damages to compensate plaintiff for
increased tax burden caused because of a single lump sum award); Sears v. Acheson, Topeka &
Kansas City Ry. Co., 749 F.2d 1451, 1456 (10th Cir. 1984) (allowing an increase in award for
back pay in order to compensate for the resultant tax burden from receiving a lump sum of more
than 17 years in back pay); Cooper v. Paychex, Inc., 960 F.Supp. 966, 975 (E.D. Va. 1997)
(citing Gelof and Sears with approval); EEOC v. Joe’s Stone Crab, Inc., 15 F. Supp. 2d 1364
(S.D. Fla. 1998) (citing Sears with approval but holding that such a tax bump required a
sufficient evidentiary foundation); May v. Automated Data Mgmt., Inc., 1989 U.S. Dist. LEXIS
10760 (D.D.C. 1989) (holding that Sears applied to protracted litigation and that sufficient
evidence was required to establish the tax penalty); Jordan v. CCH, Inc., 230 F. Supp. 603 (E.D.
Pa. 2002); O’Neill v. Sears Roebuck & Co., 108 F. Supp. 2d 443 (E.D. Pa. 2000); Starceski v.
Westinghouse Elec. Corp., 54 F.3d 1089 (3d Cir. 1995); Laura Sager & Stephen Cohen, How
The Income Tax Undermines Civil Rights Law, 73 So. Cal. L. Rev. 1075 (2000); Gregg D.
Polsky & Stephen F. Befort, Employment Discrimination Remedies and Tax Gross Ups, 90 Iowa
L. Rev. 67 (2004).
Breach of Contract – Mental Anguish
Howard Univ. v. Baten, 632 A.2d 389 (D.C. 1993).
The court held there could be no recovery for medical expenses related to mental anguish
in a breach of employment contract action.
Breach of Contract – Attorney’s Fees
Montgomery County v. Jamsa, 836 A.2d 745 (Md. Ct. Spec. App. 2003).
116
The Maryland Court of Special Appeals affirmed the trial court’s reversal of the Merit
System Protection Board’s original determination that it did not have the legislative authority to
award attorney’s fees connected to services rendered in the course of judicial review to
employees. The appellate court held that a county ordinance which requires the county to pay
attorney’s fees resulting from judicial review initiated by the county after a favorable decision
for an employee is not a limitation on the Board’s authority to award attorney fees, but rather a
mandate that the county pay for fees incurred by an employee when appealing a board decision.
McIntosh v. Aetna Life Ins. Co., 268 A.2d 518 (D.C. 1970).
The D.C. Court of Appeals held that “absent a contract or statutory provision or a
showing that the defendant’s conduct was willfully and aggressively fraudulent, attorney’s fees
are not generally allowed as damages or costs.”
Friolo v. Frankel, 819 A.2d 354 (Md. 2003).
The Maryland Court of Appeals, in an opinion that chronicles federal and state
jurisprudence with respect to the development of the “lodestar” approach to fee calculation, by
which the court multiplies the reasonable number of hours expended by an attorney in litigation
by a reasonable rate and then adjust an attorney fee award to that particular calculation, held that
such an approach is appropriate for calculating fee awards in actions brought under Maryland
Code §§ 3-427 and 3.507.1 of the Labor and Employment Article. The court qualified its own
holding, however, by stating that such calculation must also include “careful consideration of
appropriate adjustments” to their calculation “which, in almost all instances, will be case-
specific.” The court specifically found that the trial judge’s award of attorney’s fees to appellant,
equivalent to 40% of her total recovery was an abuse of discretion, because the judge did not
adequately indicate whether the lodestar approach had been used in determining that figure. The
court further indicated that because the Maryland statutes allow specifically for reasonable
‘counsel fees,’ charges for paralegals and legal interns must be subsumed within the calculation
of attorney’s fees.
Breach of Contract – Consequential Damages
O’Toole v. Northrop Grumman Corp., 305 F.3d 1222 (10th Cir. 2002).
Plaintiff sought certain consequential damages for breach of contract, which plaintiff
admitted the parties never discussed and defendant never expressly promised to pay. Defendant
moved for partial summary judgment, arguing that the consequential damages were not
contemplated by the parties when they negotiated the relocation agreement. Applying New York
law, the court found that New York applies a foreseeability test to the question whether
117
consequential damages are recoverable in a breach of contract action, and found that the lower
court erred in limiting consequential damages to those expressly discussed at the time of the
contracting. The court held it was reasonably foreseeable that the defendant’s failure to promptly
pay or reimburse relocation expenses would result in plaintiff having to borrow money to pay for
those expenses from some source, resulting in extra cost to him.
Breach of Contract – Stock Options
Stevenson v. Branch Banking & Trust Corp., 861 A.2d 735 (Md. Ct. Spec. App. 2004).
Judge Adkins wrote the opinion vacating the decision by the lower court and remanding.
The plaintiff brought a complaint against her former employer for breach of her employment
contract and violation of the Maryland Wage Payment and Collection Law. Plaintiff claimed
that her severance pay should include stock options she earned before her termination because
the Termination Compensation clause of her contract required the company to pay her all “cash
benefits”. The court determined that under the Wage Payment Act non-payment of severance
pay can include deferred compensation for services performed during employment, but that that
in this case the compensation was not “wages for work performed before termination.” The
court found that the term “cash benefits” in the employee’s contract was ambiguous and
therefore the trial court should have let the jury determine if it included the stock options.
Miga v. Jensen, 96 S.W.3d 207 (Texas 2002).
The Texas Supreme Court held that the Texas rule is contract damages are measured at
the time of the breach.
Scully v. US WATS, Inc., 238 F.3d 497 (3d Cir. 2001).
The Court of Appeals for the Third Circuit upheld a District Court ruling that the plaintiff
employee was unlawfully deprived of his stock option, when he was denied his attempt to
exercise it by a defendant employer that had wrongfully terminated the plaintiff under a two-year
employment contract that required cause for dismissal. In an exhaustive discussion of the
difference between conversion damages and breach of contract damages in the stock-option
context, the appellate court also affirmed the trial court’s award of damages based upon the
difference between the plaintiff’s strike price and the market value of the stock on the day in
which the breach occurred (rather than the final day of the contract), stating that no one universal
theory could adequately confer the just amount of damages in all cases. The court also rejected
the defendant’s appellate argument that the damages should have been discounted on the basis of
lack of marketability of the shares, because of the difference between restricted and unrestricted
stock prices at the time of the breach. The Third Circuit also reversed the lower court’s holding
118
that Pennsylvania’s Wage Payment and Collection Law did not contemplate stock options which
represented potential future compensation, rather than that which had already been earned. The
appellate court held that stock options were essentially “call options” that represented an amount
of money that was to be paid to an employee under an employment agreement. As such, the
plaintiff was entitled to attorney’s fees and potentially to liquidated damages, if the employer
could not contest or dispute the wage claim in good faith. See also Reiger v. Rhone-Poulenc
Roer, Inc., 1995 WL 395948 (E.D. Pa. June 30, 1995) and Montemayor v. Jacor Commc’ns, Inc.,
64 P.3d 916 (Colo. Ct. App. 2002) (holding that stock options constitute wages or compensation
under state wage laws).
Martino-Catt v. E. I. Dupont de Nemours & Co., 213 F.R.D. 308 (S.D. Iowa 2003).
The court held that management employees who relinquished benefits under a severance
plan in exchange for stock options failed to state a securities fraud claim based on allegations
that the defendants failed to disclose that certain corporate officers, and the defendants generally,
interpreted the severance plan as providing an “easy trigger” which amounted to a certain cash
payout to each participant.
Breach of Contract—Continued Liability
Walk v. Hartford Cas. Ins. Co., 852 A.2d 98 (Md. 2004).
The court held that an employee who violates a non-solicitation and a severance
agreement is not entitled to liability insurance protection from his previous employer even if the
contested action tangentially stemmed from his previous employment activities.
Wage Collection Laws
Appleton v. Bondurant & Appleton, P.C., 2005 Va. Cir. LEXIS 239 (Va. Portsmouth Cir. Ct.
2005).
Judge Davis wrote the opinion of the court. The plaintiff, an attorney, brought a claim
against his former law firm to recover proceeds from settled cases he had worked on before
leaving, and recovery of a loan he made to the firm. The firm counterclaimed for a portion of
proceeds from cases the attorney took with him when he left, and for reimbursement of
expenditures the firm made in pursuing the cases while the plaintiff was with the firm. The court
ruled that the plaintiff was not entitled to proceeds from cases that had been settled since he left,
but that he was entitled to recovery of the loan. The court also held that the defendant was
119
entitled to a portion of the proceeds from the settlements of the cases the plaintiff took when he
left the firm.
Smith v. Chase Group Inc., 343 F.3d 801 (8th Cir. 2004).
The court held that an employer who promised a sales account and the accompanying
commission to one employee, but then takes steps to ensure that employee does not receive his
rightful commission is a violation of Kansas law imposing penalties on employers who willfully
fail to compensate an employee in violation of Kansas wage statutes.
Varghese v. Honeywell International, Inc., 424 F.3d 411 (4th Cir. 2005).
Employee took a leave of absence to attend M.I.T. Upon completing his schooling, a
position could not be found for him within the company and he was terminated. He then
requested to roll over rights from his 401(k) plan into another IRA, which was ignored.
Employee sued due to losses sustained in his 401(k), lack of severance pay and failure to issue
stock options. The court determined that the plaintiff could not assert a claim under ERISA for
separation pay because it was not a part of an employee benefit plan, rather it was simply an
employee benefit. The employee could argue, however, claims under ERISA relating to his
stock options. The employee’s claim under COBRA failed on the merits.
The employee alleges various breach of contract claims under Maryland common law.
Regarding severance pay, the court determined that under Maryland law, even in the absence of
an employment contract, when an employee becomes aware of company policies and continues
to work for the company, those severance pay policies are enforced as a unilateral contract.
Therefore, as there was an issue of fact regarding said policies and their application to Varghese,
the summary judgment on this claim was denied.
The court determined that the award of stock options was a discretionary decision made
by company executives, and therefore no breach of employment contract occurred when the
employee was not awarded stock options. The employee was allowed to present to a jury the
question of whether his employer breached their contract regarding the exercise of stock options
and also the issue of a breach regarding the supplemental savings plan distributions to the
employee.
Varghese also alleged claims under the Maryland Wage Payment and Collection Law –
specifically that his employer failed to pay severance and other compensation due to him under
this law. As outlined above under different theories of recovery, the court determined that the
employee may pursue the claim regarding severance pay but not as to stock options which were
not issued. As to the unexercised stock options, the court concluded that the employee may
proceed on the theory that the unexercised options are wages under the statute.
120
Rogers v. Savings First Mortgage, LLC, 362 F. Supp. 2d 624 (D. Md. 2005).
Former loan officers sued their employer under FLSA as well as the Maryland Wage
Payment and Collection Law (Wage Payment Law), Md. Code Ann., Lab. & Empl. § 3-501 et
seq. The employees asserted that they were due unpaid commissions and bonuses under the
Maryland Wage Payment Law, as well as treble damages and attorneys’ fees. With regard to the
Maryland Wage Payment claims, the court decided that the employees were entitled to summary
judgment on their claims for year-end bonuses, but defendants were not entitled to summary
judgment on the employees' claims for unpaid terminal commissions. Also, defendants were not
entitled to summary judgment on the employees' claims for treble damages under the Wage
Payment Law, and the issue was left for the jury.
McLaughlin v. Murphy, 372 F. Supp. 2d 465 (D. Md. 2004).
The court had previously granted the employer summary judgment on a claim for lack of
payment of minimum wage and overtime due under the Maryland Wage Payment and Collection
Law, Md. Code Ann., Lab. & Empl. §3-501 et seq. When granting that summary judgment, the
court held that the treble damages remedy, found at Md. Code Ann., Lab. & Empl. § 3-507.1,
was available only for violations of the Maryland Wage Payment law, not FLSA (violations of
FLSA were claimed by the employee). The employee asked the court to reconsider and vacate
that holding pursuant to Fed. R. Civ. P. 59(e) and to certify the issue to the Maryland Court of
Appeals pursuant to Md. Code Ann., Cts. & Jud. Proc. §12-603. McLaughlin did not contend
that his claims for overtime or minimum wage payments fall under the scope of §§3-502, 3-505
but rather that the remedy available under §3-507.1 should be applied to FLSA claims. The
court disagreed based on the plain language of the statute which limited its scope to violations of
Md. Code Ann., Lab. & Empl. §3-502 or Md. Code Ann., Lab. & Empl. §3-505. Without an
alleged violation of the Maryland law, a claim under FLSA did not provide a clear error of law
or manifest injustice to warrant reconsideration under Fed. R. Civ. P. 59(e).
Stevenson v. Branch Banking and Trust Corp., 861 A.2d 735 (Md. Ct. Spec. App. 2004).
Employee sued for breach of her employment contract and violation of the Maryland
Wage Payment and Collection Law and won a jury award. The court ordered a remittitur and the
award was reduced. The claims arose from the contractual obligation of the employer to pay
termination compensation equal to the employee’s annual cash compensation before her
termination. The employee argued that the reduced award was too small because the trial court
prevented the jury from considering earnings from the exercise of stock options when calculating
the award. The employer contended that the Wage Payment Act did not extend to the failure to
pay severance. The court found that non-payment of severance could be grounds for relief under
the Wage Payment Act if the severance is a deferred compensation for work performed during
employment, but that the severance due to Stevenson was not the type that gave rise to a Wage
Payment Act claim.
121
Whiting-Turner Contracting Co. v. Fitzpatrick, 783 A.2d 667 (Md. 2001).
Maryland’s wage law (§3-501(c)) provides that wages means “all compensation that is
due to an employee for employment” and states that “wage” includes a bonus, a commission, a
fringe benefit or “any other remuneration provided for service.” Plaintiff, at hiring, was told that
his compensation would consist of a weekly salary and, after two years of employment and
depending upon the profitability of the company, profit sharing. Before the two years lapsed,
plaintiff decided to resign. When he told his supervisor that he had decided to resign, he, being
aware that others had received bonus checks, asked about his bonus check. The supervisor said:
“I have a profit sharing check for you in my pocket. All you have to do is tell me you are
staying.” Plaintiff adhered to his decision to resign and the company did not give him the bonus
check. The court of appeals, in ruling for the employer, emphasized that the statute required the
bonus to have been promised as a part of compensation for service. Here, the court held it was
not promised and was rather “a gift, a gratuity, revocable at any time before delivery.”
Balt. Harbor Charters, LTD., v. Ayd, 780 A.2d 303 (Md. 2001).
Maryland’s wage collection law does not define the term “employee.” Plaintiff was
President and Treasurer of the corporation. Defendants’ Board of Directors agreed to pay
plaintiff $576.92 per week for management, consulting and other services as well as for
performing his functions as President and Treasurer. Defendant did not do so and plaintiff sued
for treble damages and attorney’s fees for alleged violation of the Wage Act. The court of
appeals fashioned a six factor test for determining whether one was an employee and held that
whether or not plaintiff was an employee was a jury issue as also was the question whether the
treble damages and attorney’s fees provision did not apply as “a bona fide dispute” existed
between the parties as defined in Admiral Mortgage v. Cooper, 745 A.2d 1026, 1035 (Md.
2000).
Admiral Mortgage, Inc. v. Cooper, 745 A.2d 1026 (Md. 2000).
Under the Maryland Wage and Payment Collection Act, the Maryland Court of Appeals
in Admiral Mortgage held that additional damages available under the law were for the trier of
fact to determine. The additional damages were available if the employer withheld commissions
not as a result of bona fide dispute, an issue also reserved for the jury to determine. Essentially,
the court held that an employee whose sole job was to generate loans was entitled to
commissions for loans he developed that closed after his resignation. Additionally, the court
held that attorney’s fees were for the judge to decide upon. In holding that attorney’s fees were
to be determined and awarded by the judge, the court held it was a universal practice and was
explicit in the federal rule of civil procedure 54(d)(2) that that they be made post-judgment
unless the attorney’s fees were part of an element of damage to be determined at trial.
122
Pallone v Marshall Legacy Inst., 97 F. Supp. 2d 742 (E.D. Va. 2000).
The district court held that the Virginia Wage Payment Act does not provide for a private
cause of action to enforce right to be paid for work performed.
Raffaelli v. Advo, Inc., 218 F. Supp. 2d 1022 (E.D. Wis. 2002).
Defendant agreed to make severance payments to plaintiff in exchange for plaintiffs' non-
compete agreement in the event he was terminated without cause. Defendant, after first making
severance payments under the agreement, stated that it had cause for termination and ceased
making severance payments. Plaintiff sued for the severance payments under the Wisconsin
wage collection law which defines “wages” as remuneration for personal services. The court
held that plaintiff’s agreement not to compete was an agreement to render personal services,
holding that refraining from engaging in an activity was no less a service to defendant than if
plaintiff had acted affirmatively. The court distinguished Dept’ of Labor, Indus. & Human
Relations v. Coatings, Inc., 376 N.W.2d 834 (Wis. 1985) where the court held that the severance
payments were not for personal services as the contract entitled plaintiff to payment if he were
terminated without cause and plaintiff did not have to do anything to obtain the benefits. See
also Slone v. Aerospace Design & Fabrication, Inc., 676 N.E.2d 1263, 1267 (Ohio 1996)
(performance of non-compete agreement is personal service); Schaefer v. Comm’r, 1995 WL
542395 (T.C. 1995) (refraining from engaging in competition is equivalent to a personal service).
Medex v. McCabe, 811 A.2d 297 (Md. 2002), vacated McCabe v. Medex, 786 A.2d 57 (Md.
App. 2001).
The Maryland Court of Special Appeals held that the state wage collection law prohibits
an employer from conditioning the payment of commissions, set forth in its commission
schedule, upon the employee still being employed on the date of the payment when the employee
had completed all of the tasks required of him prior to the conclusion of the fiscal year. The
intermediate court went on to hold that there was a bona fide dispute that need not be submitted
to the jury. The court of appeals vacated that decision, holding that the “incentive fees” were
commissions, and thus “wages”, as defined by the statute; that contractual language between the
parties cannot be used to eliminate the requirement and public policy that employees have a right
to be compensated for their efforts; and that the bona fide dispute issue should have been
submitted to the jury.
Battaglia v. Clinical Perfusionists, Inc., 658 A.2d 680 (Md. 1995).
The court held that “[t]here is no indication in the statutory language [of the wage
collection law] that the terms ‘compensation’…or ‘remuneration’…are intended to encompass
contract damages in which promised wages for future services, not rendered, may enter into the
damages computation.”
123
Sturdza v. United Arab Emirates, 281 F.3d 1287 (D.C. Cir. 2002).
The court certified to the District of Columbia Court of Appeals the question whether,
under District of Columbia law, an architect is barred from recovering on a contract to perform
architectural services in the District or in quantum meruit for architectural services rendered in
the District because the architect was not licensed to practice in the District.
Lawlor v. District of Columbia, 758 A.2d 964 (D.C. 2000).
The court affirmed judgments under the Wage Collection Act against shareholders and
officers of a corporation, whose veil was pierced, for failure to pay employees for services
rendered to the corporation.
Scully v. US WATS, Inc., 238 F.3d 497 (3d Cir. 2001).
The Court of Appeals for the Third Circuit upheld a District Court ruling that the plaintiff
employee was unlawfully deprived of his stock option, when he was denied his attempt to
exercise it by a defendant employer that had wrongfully terminated the plaintiff under a two-year
employment contract that required cause for dismissal. In an exhaustive discussion of the
difference between conversion damages and breach of contract damages in the stock-option
context, the appellate court also affirmed the trial court’s award of damages based upon the
difference between the plaintiff’s strike price and the market value of the stock on the day in
which the breach occurred (rather than the final day of the contract), stating that no one universal
theory could adequately confer the just amount of damages in all cases. The court also rejected
the defendant’s appellate argument that the damages should have been discounted on the basis of
lack of marketability of the shares, because of the difference between restricted and unrestricted
stock prices at the time of the breach. The Third Circuit also reversed the lower court’s holding
that Pennsylvania’s Wage Payment and Collection Law did not contemplate stock options which
represented potential future compensation, rather than that which had already been earned. The
appellate court held that stock options were essentially “call options” that represented an amount
of money that was to be paid to an employee under an employment agreement. As such, the
plaintiff was entitled to attorney’s fees and potentially to liquidated damages, if the employer
could not contest or dispute the wage claim in good faith.
124
Breach of Contract – Terms
Allworth v. Howard Univ., 890 A.2d 194 (D.C. 2006).
Judge Reid delivered the opinion of the court. Allworth appealed the trial court’s award
of summary judgment to Howard University, her employer, regarding the denial of her
application for tenure in the College of Medicine. The court affirmed.
Howard denied Allworth’s application for tenure on the grounds that it “considered Dr.
Allworth’s research productivity weak.” It was suggested that she take another year to fortify
her research. The period was extended two more years by votes of the committee deciding
tenure. Allworth alleged breach of contract and breach of the covenant of good faith and fair
dealing. The trial court found that the University Handbook, the basis for Howard’s contracts for
employment, allowed Allworth to be eligible for tenure and not that she would be awarded
tenure.
Reviewing de novo, the court addressed Allworth’s claim that Howard breached the
covenant of good faith and fair dealing by not allowing her the opportunity to conduct enough
research to gain tenure. Howard is liable if they “evade[d] the spirit of the contract, willfully
render[ed] imperfect performance, or interfere[d] with performance by the other party.” “Fair
dealing” is grounded in reasonableness and not arbitrary or capricious actions. Citing that a
court should not improperly trample the academic judgment of the school, a showing of
negligence or lack of diligence is not enough to overcome a motion for summary judgment. Dr.
Allworth’s claim that Howard did not allow for the proper conduct of research did not adduce
more than negligence; hence the ruling for Howard.
Sanchez v. Magafan, 892 A.2d 1130 (D.C. 2006).
Associate Judge Farrell wrote the opinion reversing the lower court’s grant of summary
judgment in favor of the defendant. The plaintiff brought suit under the D.C. Wage Payment Act
for unpaid wages pursuant to an oral agreement with defendant. The defendant argued that
because the plaintiff was an independent contractor and not his employee he was not entitled to
relief under the act. The court held trial court erred in determining that there was no triable issue
of fact. The court found that a reasonable trier of fact could determine that the defendant was
plaintiff’s employer under the act because he “reserved the right to, and did, exercise substantial
control over the means and manner of [plaintiff’s] job performance.” The court remanded for a
trial to determine whether defendant was plaintiff’s employer.
Smelkinson Sysco v. Harrell, 875 A.2d 188 (Md. Ct. Spec. App. 2005).
Judge Thieme wrote the opinion vacating the decision of the trial court and remanding
the case. The trial court awarded the appellant employer one dollar in nominal damages for
appellee employee’s breach of a non-disparagement clause in a settlement agreement. Under the
terms of the settlement agreement the appellee’s breach permitted the appellant to recover all
125
$185,000 paid to appellee in the settlement. The trial court found that this was a liquidated
damages clause and constituted an impermissible penalty. The appellate court reversed finding
that the clause was a stipulated damage clause that was reasonable and enforceable.
Schupp v. Jump! Info. Tech., Inc., 65 Fed. Appx. 450 (4th Cir. 2003).
In a per curiam opinion, the Fourth Circuit found that the lower court properly granted
defendant’s motion for summary judgment. The plaintiff sued his former employer for
commissions owed to him and claiming that the employer misrepresented material facts to him.
The plaintiff worked for a small company and as part of his compensation package was
given stock options. Shortly after hiring the plaintiff the company was acquired by a
corporation. The corporation paid the plaintiff the same salary and converted his stock options
from the company into options for stock of the corporation. The corporation also paid the
plaintiff a retention bonus. Soon after the acquisition the plaintiff quit. The corporation gave the
plaintiff the commission he had earned, but withheld an amount equal to the retention bonus.
The plaintiff claimed the corporation could not withhold the money from the retention bonus
from his commissions. The Fourth Circuit found that the language of the retention bonus
agreement clearly explained that the bonus would be withheld if the plaintiff left the company
within a specified time period, which he did. The court also found no evidence that the
defendant had misrepresented any issue of material fact to the plaintiff. Therefore the court held
that the lower court was correct in granting summary judgment to the defendant.
Brozo v. Oracle Corp., 324 F.3d 661 (8th Cir. 2003).
The court, in reversing the lower court, held that a salesman’s contract was not
ambiguous insofar as it gave the employer the discretion to accord “appropriate treatment” to any
individual sales that equaled or exceeded the employee’s annual quota. Finding that language not
ambiguous, the court held that the employee could not recover for breach of contract after the
employer capped the employee’s commission for a large sales transaction. The dissent stated
that “[t]his case troubles me as much as any case that I have sat in over thirty-seven years on this
court.”
Conversion
Mar Tech. Mech., LTD v. Chianelli Bldg. Corp., 2001 Va. Cir. LEXIS 223 (Va. Norfolk Cir. Ct.
2001).
Plaintiff brought a conversion action for a sum of money that he alleged should have
been paid for work performed. The court denied the claim as a claim for conversion requires that
a specific, tangible item is being wrongfully withheld. Here, “any form of payment would
126
satisfy the judgment, and could properly come from any source whatever.” . As “a dollar is a
dollar” and “no specific dollar is sought as being converted”, the claim did not lie. See also
Republic of Haiti v. Crown Charters, Inc., 667 F. Supp. 839, 845 (S.D. Fla. 1987) (a mere
obligation to pay money may not be enforced by an action for conversion.).
Motion Control Sys., Inc. v. East, 546 S.E.2d 424 (Va. 2001).
The Virginia Supreme Court found a restrictive covenant to be overbroad and

unenforceable. While the court in prior decisions had approved covenants prohibiting
employment in “any business similar to the type of business conduct by” the employer, Roanoke
Eng’g Sales Co. v. Rosenbaum, 290 S.E.2d 882, 883 (Va. 1982), and prohibiting work with a
competitor who “renders the same or similar services as Employer.” Blue Ridge Anesthesia &
Critical Care v. Gidick, 389 S.E.2d 467, 468 (Va. 1990). Here, the covenant defined a “similar
business” in terms that the court found could include a wide range of business unrelated to the
plaintiff’s employer’s business. The court found the covenant to be overbroad even though the
employee had specifically negotiated a language change in the offending sentence in the
covenant. The court went on to vacate an injunction because there was no evidence that the
employee had actually disclosed or threatened to disclose trade secrets, and “[m]ere knowledge
of trade secrets is insufficient to support an injunction” under the Virginia Uniform Trade Secrets
Act.
Unfair Business Practices Statute
Cortez v. Purolator Air Filtration Products, Co., 999 P.2d 706 (Cal. 2000).
California courts have held that employment practices forbidden by the Labor Code may
also constitute an unlawful business practices subject to redress under the state statute. See also
McCullum v. XCare.net, Inc., 212 F. Supp. 2d 1142 (N.D. Cal. 2002) (An employee terminated
from sales manager position alleged employer failed to pay her certain commissions; court held
that plaintiff had pled a claim under the California statute regarding unfair business practices.);
Cal-Tech v. L.A. Cellular Tel. Co., 973 P.2d 527 (Cal. 1999) (a practice could violate the unfair
business practices provisions of the code “even if not specifically proscribed by some other
law”); Application Group, Inc. v. Hunter Group, Inc., 1998 Cal. App. LEXIS 144 (Cal. Ct.
App.1998). (“where the employer’s policy or practice is forbidden by or found to violate the
Labor Code, it may also be held to constitute an unlawful business practice subject to redress
under [California Business and Professions Code § 17200].”).
127
Anti-SLAPP Statute
Commonwealth Energy Corp. v. Chappell, 2002 Cal. LEXIS 4333 (Cal. 2002).
Former employee anonymously sent copies of an article about the defendant that had
been published in a local newspaper to the defendant’s shareholders. Plaintiff stated that he did
so to induce the defendants to settle a breach of contract action regarding unpaid commissions
and stock options that he had filed. When the defendant traced the distribution of the article to
the plaintiff, it filed suit against him on various grounds, including misappropriation of trade
secrets (i.e., the shareholder’s list). The former employee then filed a motion to strike the
employer’s complaint under California’s anti-SLAPP statute. SLAPP is an acronym for
“Strategic Lawsuits Against Public Participation.” That statute provides that a lawsuit is subject
to dismissal if it arises from “any act of [a] person in furtherance of the person’s right of petition
or free speech under the United States or California Constitution in connection with a public
issue,” unless the plaintiff in the lawsuit establishes a probability he will prevail on the claim.
The statute imposes no requirement that the defendant, here, the former employee, show an
improper motive. The court granted the motion to strike and awarded attorney’s fees.
Fox Searchlight Pictures, Inc. v. Paladino, 2001 Cal. App. LEXIS 377 (Cal. Ct. App. 2001).
The California Court of Appeals ruled that an in-house attorney was not prevented from
disclosing employer-client confidential information in a wrongful termination suit against her
former client-employer. The Court found that the attorney did not have to show that her former
client had brought a lawsuit to “chill her exercise of First Amendment rights.”
Rivero v. Am. Fed’n of State, County & Mun. Employees, 2003 Cal. App. LEXIS 123 (Cal. Ct.
App. 2003).
While a supervisor was absent from work due to an industrial injury, his local union used
subordinate employees to launch a publicity campaign to accuse him of stealing and heavy-
handed management practices in order to pressure his termination. Upon returning from the
absence, the supervisor was terminated and reassigned to a dishwasher and pot-scrubber. The
supervisor sued his union, employer and fellow employees for libel, slander, conspiracy to libel,
IIED, and negligent interference with an economic relationship. The court held that the union’s
actions were not protected free speech in that they failed to demonstrate that the supervisor’s
actions were a public issue matter or otherwise affected public policy. As such, the court held
that the union’s actions were improper and remanded for further proceedings.
128
Shareholder claims
Paskowitz v. Wohlstadter, 822 A.2d 1272 (Md. Ct. Spec. App. 2003).
The Maryland Court of Special Appeals affirmed a lower court dismissal of a shareholder
plaintiff’s claim under Delaware Law against a corporation and some of its directors for
breaching its fiduciary duty by allegedly materially false and misleading disclosures regarding a
joint venture. The court held that the plaintiff’s suit was derivative rather than direct and that the
allegedly misleading disclosures did not affect any individual contractual or voting rights of the
plaintiff. The plaintiff could not allege a special injury in his own right, and therefore he had no
standing to sue as he did not claim to suffer any actual damages, but only nominal damages
based on the allegedly misleading disclosure.
Next Century Commc’ns Corp. v. Ellis, 318 F.3d 1023 (11th Cir. 2003).
The court rejected claims by a former shareholder that he justifiably relied on statements
by the company’s CEO regarding the company’s share price and strong performance, and
accordingly found that the shareholder could not state a claim for negligent misrepresentation
under Georgia law.
Martino-Catt v. E. I. Dupont de Nemours & Co., 2002 U.S. Dist. LEXIS 25743 (S.D. Iowa
2003).
The court held that management employees who relinquished benefits under a severance
plan in exchange for stock options failed to state a securities fraud claim based on allegations
that the defendants failed to disclose that certain corporate officers, and the defendants generally,
interpreted the severance plan as providing an “easy trigger” which amounted to a certain cash
payout to each participant.
Punitive Damages
Chatman v. Lawlor, 831 A.2d 395 (D.C. 2003).
The District of Columbia Court of Appeals affirmed that defendant was liable for her
participation in a fraudulent conveyance to co-defendant so that the latter could avoid judgment
in a prior trial, but that a defendant’s “failing to disagree” with opposing counsel’s estimation of
her net worth during questioning is insufficient to establish the exact sum of her net worth at
time of trial for purposes of punitive damages. The purpose of punitive damages is to punish the
defendant, but not to impose “financial ruin” upon her. As such, the case was remanded for
129
determination of defendant’s net worth and whether she would be able to afford the $1.4 million
punitive damage award for which she was liable.
Preemption
Eid v. Duke, 816 A.2d 844 (Md. Ct. Spec App. 2003).
In Eid, the Maryland Court of Special Appeals affirmed the trial court summary judgment
ruling that the plaintiffs’ tort claims were preempted by ERISA. The plaintiffs were an
employee and his wife who filed a medical malpractice claim against the administrator of his
employer’s disability benefits plan and the administrator’s medical consultant. The employee
alleged that the he had to return to work before he was physically fit to do so because his short
term disability benefits had been cut off by the administrator of his plan. The employee’s
disability benefits plan was covered under ERISA and the court ruled that the employee’s tort
claim – filed under state law – was sufficiently “related to” a benefits determination and
therefore was preempted under ERISA.
Lucini Italia Co. v. Grappolini, 231 F. Supp. 2d 764 (N.D. Ill. 2002).
The United States District Court for the Northern District of Illinois sitting in diversity
answered in the negative the question as to whether the preemption clause of the Illinois Trade
Secret Act (ITSA), 75 ill. Comp. Stat. 1065/8(a) precluded the plaintiff from claims for breach of
fiduciary duty, constructive fraud, fraud, promissory estoppel and unjust enrichment against the
defendant. Applying Illinois law, the court found that while the ITSA does preempt all common
law causes of action for misappropriation of a trade secret, it does not preempt any claim outside
that scope, including all five of the plaintiff’s claims which related to the defendant’s conduct in
contractual negotiations, independent of the misappropriation claim.
Nanda v. Bd. of Trs. of Univ. of Ill., 219 F. Supp. 2d 911 (N.D. Ill. 2001).
Plaintiff’s tortious interference claim relied upon an alleged improper motivation (sex,
race and national origin) for defendant’s conduct that was prohibited by the state anti-
discrimination law. Thus, the court held that the tortious interference claim was inextricably
linked to claims of discrimination under the state statute, which had been held in Welch v.
Illinois Supreme Court, 751 N.E.2d 1187 (Ill. 2001), to be an exclusive remedy, and the claim is
therefore preempted by the anti-discrimination statute.
130
Martinez v. Cole Sewell Corp., 233 F. Supp. 2d 1097 (N.D. Iowa 2002).
The court found that the Iowa Civil Rights Act preempted a claim of intentional infliction
of emotional distress. See also Greenland v.Fairtron Corp., 500 N.W.2d 36 (Iowa 1993) (holding
that a claim for IIED was preempted by Iowa sex discrimination statute).
Jiminez v. Thompson Steel Co., Inc., 264 F. Supp. 2d 693 (N.D. Ill. 2003).
The court addressed whether claims for intentional and negligent infliction of emotional
distress are preempted by the Illinois Human Rights Act. The court held that whether a tort
claim is preempted depends upon whether the claim is inextricably linked to a civil rights
violation such that there is no independent basis for the action apart from the act itself.
Ishikawa v. Delta Airlines, 343 F.3d 1129 (9th Cir. 2003).
A plaintiff flight attendant sued a defendant laboratory under state common law in
Oregon on the ground that the lab negligently conducted a drug test that ultimately led to the
flight attendant’s erroneous termination. The jury found for the plaintiff and the defendant
appealed on the ground that the state law upon which the plaintiff based her cause of action was
preempted by federal law, specifically the Omnibus Transportation Employee Testing Act of
1991. The court affirmed the judgment found that the law did not preempt the state cause of
action. There was no express preemption where the preemption clause limited itself to covering
only “inconsistent” state law and the defendant made no argument that the state law was actually
inconsistent. It is not enough that a state law could be inconsistent. Further, the court reasoned
that if Congress has expressly preempted some state law, it could not impliedly preempt those
state laws that it did not explicitly preempt.
King v. Marriott Int’l, Inc., 337 F.3d 421 (4th Cir. 2003).
The Fourth Circuit reversed a district court ruling that ERISA completely preempted a
terminated employee’s suit for wrongful discharge under the laws of Maryland. While ERISA
completely preempts many state law claims, plaintiff’s state claim was not preempted by
ERISA’s provision that provides for a cause of action stemming from termination based upon her
testifying in “any inquiry or proceeding relating to” ERISA. An inquiry or proceeding for the
purposes of ERISA does not extend to internal complaints filed with defendant employer’s co-
workers, supervisors, and attorneys. The Fourth Circuit declined to follow the Fifth and Ninth
Circuits which had held intra-office complaints to fall within the ambit of ERISA. Further,
plaintiff did not waive her right to object to removal by stating an ERISA claim as an alternative
argument after her attempt to block removal was denied.
131
Branche v. Airtran Airways, Inc., 342 F.3d 1248 (11th Cir. 2003).
The Eleventh Circuit held that plaintiff’s retaliatory discharge claim in violation of
Florida’s Whistleblower Act was not preempted by the Airline Deregulation Act, including the
amendment thereto which included whistleblower protections for airline employees.
Manuel v. Conn. Gen. Life Ins. Co., 1991 U.S. Dist. LEXIS 2912 (N.D. Ill. 1991).
In Manuel, the court granted the defendants’ motion to dismiss plaintiff’s claim that
defendant insurance company refusal to pay her proceeds under her late husband’s life
insurance policy was “vexatious and unreasonable” entitling her to attorney’s fees. The court
held that plaintiff’s claim was preempted a state law claim for attorney’s fees. The insurance
policies was part of a plan that fell within ERISA’s definition of “employee welfare benefit
plan.” Although plaintiff’s filed a claim under a statute that arguably regulated insurance and
thus not preempted by ERISA, the court held that the plaintiff’s claim was still preempted by
ERISA because Congress explicitly provided for attorney’s fees under ERISA and to allow a
state law claim to stand would undermine Congress’ policy rationales.
Venue
Pope-Payton v. Realty Mgmt. Servs., Inc., 815 A.2d 919 (Md. Ct. Spec. App. 2003).
The Court of Special Appeals for Maryland addressed, for purposes of determining
whether a trial court’s transfer of venue was valid, the question as to “whether discrimination
takes place only in the county where the decision to discriminate is made or whether
discrimination may also take place in the county where the decision to discriminate was
implemented.” The trial court in Prince George’s County, Maryland, where the plaintiff worked
for defendant corporation, transferred the case to Montgomery County where the allegedly
discriminatory decision was made at the defendant’s headquarters. Noting that allegedly
discriminatory decisions and actions do not necessarily take place in the same venue, the court
reversed the lower court’s transfer and remanded it back to Prince George’s County on the basis
of an agglomeration of factors including the fact that (1) the plaintiff worked and lived
exclusively in the county where the suit was filed, (2) the discriminatory effect was felt in the
venue chosen by the employee, and (3) the ordinance under which the employee brought a claim
was the law of the county where she originally brought suit, and (4) the fact that all allegedly
discriminatory decisions were implemented in Prince George’s County.
132
Blake v. Prof’l Travel Corp., 768 A.2d 568 (D.C. 2001).
In a sexual harassment claim under the District of Columbia Human Rights Act
(DCHRA), the District of Columbia Court of Appeals reversed a trial court decision to dismiss
the case on the ground of forum non conveniences. The lower court’s had reasoned that Virginia
was a more appropriate venue because the state had closer ties to the litigation, the business of
the defendant in the District of Columbia was limited as compared to that in Virginia, the
corporate decisions surrounding the harassment occurred in Virginia and Colorado, the plaintiff’s
job took place primarily in Virginia, and the forum would not be inconvenient for the plaintiff.
The appellate court rejected this reasoning as an abuse of discretion stating that numerous acts of
sexual coercion and harassment had occurred in the District of Columbia, that the defendant had
a corporate presence in the District, that the employee of the defendant allegedly committing the
harassment lived in the District, and the defendant’s failure to show any real inconvenience in
litigating the case in the District.
Employer’s Liability for Actions of Employee
Murdza v. Zimmerman, 786 N.E.2d 440 (N.Y. 2003).
New York’s highest court held that an employer cannot be held liable for injuries to a
pedestrian that occurred when an employee’s boyfriend was driving a car leased to the employer.
Carter v. Reynolds, 815 A.2d 460 (N.J. 2003).
The New Jersey Supreme Court held that an accounting firm can be vicariously liable for
an auto accident allegedly caused by the employee returning home from a mandatory client visit
in her personal car.
O’Toole v. Carr, 815 A.2d 471 (N.J. 2003).
The New Jersey Supreme Court held, on the other hand, that a law firm cannot be held
liable for an auto accident caused by a partner driving to his part-time job as a municipal judge.
Leach v. Heyman, 233 F. Supp. 2d 906 (N.D. Ohio 2002).
The Northern District of Ohio held that a convenience store could be held liable under
Ohio law where its employee acted with racial animus towards a customer. The court further
held that while an employer can be held liable for an employee’s intentional and/or malicious
acts, such acts must be within the scope of employee’s employment, and that an employee’s
133
leaping over the counter and assaulting a customer as he is about to leave the store does not fall
within that scope.
MacDonald v. Hinton, 836 N.E.2d 893 (Ill. App. Ct. 2005).
Finding that a claim of negligence for an employer’s failure to warn an employee “of an
unreasonable risk of harm involved in the agency” to be sustainable, the risk must arise from the
particular nature of the employment; the court held that a company was not negligent in a
wrongful death suit when a known-convicted murderer employee murdered a fellow employee.
Sexual Harassment
Yanowitz v. L’Oreal USA, Inc., 116 P.3d 1123 (Cal. 2005).
The California Supreme Court held that a female sales manager fired for refusing to
terminate an employee her male supervisor did not think was attractive enough to work in their
field, could bring a retaliation claim against her employer. The court determined that the firing
of an employee for unattractiveness is sexual discrimination and as such, the plaintiff’s refusal to
fire the employee was “protected conduct.” As a result, the court ruled that the plaintiff could
rely on the continuing violation doctrine in order to establish the planned adverse employment
action against her.
Lyle v. Warner Bros. Television Prods., 132 P.3d 211 (Cal. 2006).
The California Supreme Court affirmed a lower court ruling that the writers for the
television show “Friends” who had been sued by a writers’ assistant for sex harassment based
upon the sexually explicit talk and gestures at writers’ meetings was not sexual harassment
because the talk and gestures were not aimed at the plaintiff or any other women in the
workplace. The court ruled that such actions were within ‘the scope of necessary job
performance’ and not engaged in for purely personal gratification or out of meanness or bigotry
or other personal motives and that defendants may be able to show their conduct should not be
viewed as harassment…”
Haynie v. State, 664 N.W.2d 129 (Mich. 2003).
The Michigan Supreme Court affirmed summary judgment for the employer, holding that
gender-based harassment of an employee that is not sexual in nature cannot support a claim of
sexual harassment. The court stated: “it is clear from this definition of sexual harassment [in this
state’s civil rights act] that only conduct or communication that is sexual in nature can constitute
134
sexual harassment, and thus conduct or communication that is gender-based, but that is not
sexual in nature, cannot constitute sexual harassment.” There was a vigorous dissent.
Strausbaugh v. Ohio Dep’t. of Transp., 782 N.E.2d 92 (Ohio Ct. App. 2002).
In case involving a sexual harassment claim by a male employee against a male

supervisor, the court refused to create a public policy course of action for harassment complaints
by an employee. The court also held that a collective bargaining agreement does not preempt a
common or state law claim or remedy.
Administrative Hearings
State of Md. Comm’n on Human Relations v. Freedom Express/Domegold, Inc., 825 A.2d 354
(Md. 2003).
The Maryland Court of Appeals reversed a lower court order that the Maryland
Commission on Human Rights hold an “evidentiary hearing to determine whether a sufficient
basis existed” for the treatment of four corporate entities as integrated, thereby constituting a
single employer for the purposes of the Commission, which only had jurisdiction over employers
with over fifteen employees. The defendant-employer refused to adequately comply with a
subpoena from the Commission and the Commission filed a petition in Maryland Circuit Court
to enforce the subpoena. The highest court in Maryland granted certiorari directly from the
circuit court, holding that the trial court erred in compelling the evidentiary proceeding, since no
final administrative decision had been reached in the matter. The statutory interpretation as to
whether the defendant was an “employer” for the purposes of the commission was “a typical
statutory interpretation or application issue to be determined by a final administrative decision
and to be judicially reviewed in an action under the [state] Administrative Procedure Act….”
Unless a tribunal is acting “palpably without jurisdiction” as in Parker v State, 653 A.2d 436
(Md. 1995), where “a probate court, invested only with authority over wills and the estates of
deceased persons” attempted to subject an individual to a criminal trial, judicial review of the
jurisdictional issue “must await a final administrative decision.”
135
Ethics
Spratley v. State Farm Mut. Auto. Ins. Co., 78 P.3d 603 (Utah 2003).
Two attorneys represented the insurer and its insured as in-house counsel. The attorneys
quit because State Farm required them to violate ethical duties as attorneys and punished them if
they refused to do so. They retained some confidential documents, and sued under several tort
theories. The trial court ordered the attorneys to return the documents and held that their current
counsel had to be disqualified. The appellate court held that the attorneys could (under Utah R.
Prof'l Conduct 1.6(b)(3) which permits disclosures to “establish a claim or defense on behalf of
the lawyer in a controversy between the lawyer and client”) disclose matters relating to their
representation of the insurer in a suit against the insurer, so long as those disclosures were
reasonably necessary to that claim. Also, the attorneys could keep copies of documents, but had
to return originals to the client. Finally, attorneys’ counsel could represent them, because if
counsel could be disqualified because of disclosures made by the attorneys while they were
seeking legal advice, there would be no way for attorneys in this situation to retain counsel.
In re Gatti, 8 P.3d 966 (Or. 2000).
The court held that Oregon law prohibits lawyers from misrepresenting him- or herself
while “engaged in the practice of law.” An investigatory exception to this law does not apply to
lawyers investigating their own legal matters, but only to a selected class of occupations for
purposeful reasons. The lawyer in this case received a public reprimand.
Workers’ Compensation
Design Kitchen & Baths v. Lagos, 882 A.2d 817 (Md. 2005).
Chief Judge Bell wrote the opinion of the court, in which Judges Raker, Wilner, Cathell,
Harrell, Battaglia, and Greene joined. Judge Harrell wrote a dissenting opinion. The case is an
appeal from the Circuit court for Montgomery County, which granted summary judgment in
favor of Diego E. Lagos, an undocumented alien who was granted compensation for sustaining a
work related injury. Petitioner appealed.
Lagos suffered a hand injury while operating a say while under employment with Design
Kitchen & Bath. The injury required immediate medical attention, including multiple surgeries.
In turn, Lagos filed a workers’ compensation claim with the Maryland Workers’ Compensation
Commission (“the Commission”), which, among other issues, was to determine Lagos’s
eligibility as an undocumented alien. The Commission ruled in Lagos’s favor.
On appeal, the court noted that the Workers’ Compensation Act (“the Act”) does not
speak directly to the issue on the effect undocumented alien status has on coverage under the Act
136
itself. Noting that the Act is subject to the rule that it “should be construed as liberally in favor
of injured employees as its provisions will permit in order to effectuate its benevolent purposes”,
the court held that “[a]ny uncertainty in the law should be resolved in favor of the claimant.”
(quoting Harris v. Bd. of Educ. of Howard County, 825 A.2d 365, 387 (Md. 2003)). Because the
act in question failed to identify the specific class of persons at issue in this case, the court
adopted the liberal interpretation of the rule. Furthermore, legislative history enforced the
court’s interpretation of the statute.
Abrams v. Am. Tennis Courts, Inc., 862 A.2d 1094 (Md. Ct. Spec. App. 2004).
Judge Salmon wrote the opinion affirming the lower court’s grant of summary judgment
to the defendant. The plaintiff prevailed in a worker’s compensation claim he brought before the
Maryland Worker’s Compensation Commission in which he claimed he had been injured when
he fell down stairs at work. Plaintiff then pursued a civil claim for the same injury claiming he
had been injured when he was hit by a truck driven by a negligent co-worker. The court found
that the plaintiff’s civil claim was barred by judicial estoppel because he had secured a judgment
in another case and was now changing his position. The plaintiff argued that because he had
been forced to return the money awarded him by the MWCC he had not secured a favorable
judgment and his civil claim was not barred. The court found that the plaintiff had been forced
to return the money awarded him by the MWCC because the commission had discovered his
fraud, but, the commission had entered a favorable judgment for plaintiff and that was sufficient
to bar his civil claim.
Thayer v. State, 653 N.W.2d 595 (Iowa 2002).
The Iowa Supreme Court ruled that for workers’ compensation purposes an injury "arises
out of" employment if there is a causal connection between the employment and the injury. The
Court ruled that plaintiff’s injury, which occurred in a company van on the way to work, was
sufficiently connected to the plaintiff’s work to bar plaintiff from pursuing claims beyond
workers’ compensation.
Trade Secrets
Evans v. General Motors Corp., 893 A.2d 371 (Conn. 2006).
Plaintiff, and inventor, sued General Motors, alleging that it has misappropriated trade
secrets in violation of the Connecticut Uniform Trade Secrets Act. Plaintiff sought jury trial on
his claims. Following an extensive historical analysis, the Connecticut Supreme Court included
that the plaintiff was entitled to jury trial on his trade secrets claims seeking damages. The
137
Connecticut Supreme Court recognized that previously no court had expressly held that a
plaintiff had a right to a jury trial on the damages aspects of a trade secrets claim.
Burbank Grease Servs. L.L.C. v. Sokolowski, 693 N.W. 2d 89 (Wis. Ct. App. 2005).
The Wisconsin Court of Appeals determined that defendant former employee did not
violate the Wisconsin Trade Secrets Act by using information about customers and pricing
schemes obtained while working for plaintiff former employer to help his new employer
successfully compete against the plaintiff.
Hecny Transp. Inv. v. Chu, 430 F.3d 402 (7th Cir. 2005).
The court ruled that the names of plaintiff’s customers was not a trade secret and
therefore defendant was not prevented from using that information after terminating his
employment with plaintiff.
Hicklin Eng’g L.C. v. Bartell, 439 F.3d 346 (7th Cir. 2006).
The 7th Circuit ruled that Wisconsin law does not require an express written agreement
of confidentiality to require that an independent contractor keep data obtained from the
contracting company confidential. The court found that if the standard practice within the trade
is to keep data given by a company to a private contractor confidential then the private contractor
may not use the data for his own benefit regardless of whether the private contractor has signed a
confidentiality agreement.
Microstrategy, Inc. v. Li, 601 S.E.2d 580 (Va. 2004).
Judge Keenan wrote the opinion affirming the lower court’s judgment in favor of the
defendant. The plaintiff company brought a claim under the Virginia Uniform Trade Secrets Act
against the defendant former employees claiming they had breached their agreement not to
disclose company secrets. The plaintiff claimed that the defendants had used trade secrets
acquired during their employment with plaintiff to develop software for their new employer.
The court found that the plaintiff did carry its burden of proving that the defendants used trade
secrets and not publicly available programs to develop their software. The court found that the
witnesses offered by the defense were far more convincing than those offered by the plaintiff.
The court held that the lower court was correct in determining that the plaintiff had not shown
that the defendants had appropriated trade secrets from them.
138
O’Grady v. Superior Court, 2006 Cal. App. LEXIS 802 (Cal. Ct. App. 2006).
Judge Rushing wrote the opinion reversing the lower court’s ruling forcing the disclosure
of anonymous sources who leaked information about yet-to-be-released products from Apple
Computer. The court of appeals extended the same protection of sources given to traditional
media reporters to bloggers and other online journalists.
P.C. Yonkers, Inc. v. Celebrations the Party & Seasonal Superstore, LLC, 428 F.3d 504 (3d Cir.
2005).
The court found that although the plaintiff franchisees demonstrated the defendants had
access to their computers, the plaintiffs did not show what information the defendants saw or
how the information was used. Without a detailed showing of defendant’s use of a particular
trade secret, the court found that plaintiff could not sustain a claim of misappropriation of trade
secrets.
Unemployment
Medeiros v. Haw. Dep’t. of Labor and Indus. Relations, 118 P.3d 1201 (Haw. 2005).
The Hawaii Supreme Court held that an employee fired for joking about workplace
violence (putting hands around co-worker’s throat) is not entitled to unemployment benefits
because the employee’s actions constituted “misconduct.” Hawaii has a statute on the books that
specifically deals with these situations: HRS § 383-30 disqualifies employees from receiving
state unemployment when they have been discharged for workplace misconduct. This
“misconduct connected with work” is comprised of those actions demonstrating a “willful or
wanton disregard of the employer’s interests, such as deliberate violations...of the standards of
behavior which the employer has a right to expect of an employee, or carelessness, or negligence
of such a degree or recurrence as to show wrongful intent or evil design.” HAR § 12-5-51
(Hawaii Administrative Rule). However, inefficiency, poor performance due to inability or
incapacity, or errors of judgment made in good faith do not constitute misconduct connected
with work. Id. Additionally, the court evaluates the following to determine “misconduct”:
1) Employee’s reasons for the act or omission, and efforts to avoid the act or
failure to act;
2) The relevant circumstances of the case and any causative effect there from
upon the employee’s actions;
3) The nature and importance to the employer of the offended interest of the
employer;
4) Any lawful and reasonable company policy or custom;
139
5) Employer’s actions to curtail or prevent, if possible, the objectionable conduct;
and
6) The nature of the act or failure to act.
Exclusivity of Workers’ Compensation Release Clauses
Claxton v. Waters, 96 P.3d 496 (Cal. 2004).
The California Supreme Court ruled that a boilerplate release clause in a workers’
compensation settlement agreement released the employer only from future workers’
compensation claims, not from other possible civil claims. The Court also prevented the
introduction of extrinsic evidence intended to show that the release was intended to prevent all
possible claims against employer.
Post-employment Commissions
Westfall v. Brentwood Serv. Group, Inc., 2000 Tenn. App. LEXIS 759 (Tenn. Ct. App. 2000).
The Tennessee Court of Appeals held that an employer is bound to pay all commissions
due to a salesperson that were earned while the salesperson was employed by the employer. The
Court found that even though the employment agreement provided that the employer would pay
commission after customers paid their bill, the commission for the sale was earned when the
contract between the employer and the customer was signed. Therefore the employer owed the
salesperson all commissions he earned, even after he no longer worked for the employer. The
Court held that it was irrelevant whether the employee quit or was terminated.
Wrongful Termination
Haas v. Lockheed Martin Corp., 887 A.2d 673 (Md. Ct. Spec. App. 2006).
The Maryland Court of Special Appeals held that the statute of limitations in a
discriminatory discharge does not start on the date of the actual termination, but instead on the
date the plaintiff is informed that the termination will occur.
140
Computer Fraud and Abuse Act
Int’l Airport Ctrs., L.L.C. v. Citrin, 440 F. 3d 418 (7th Cir. 2006).
The court found that the defendant breached his duty of loyalty and violated the
Computer Fraud and Abuse Act by transmitting a program to a laptop owned by his former
company which destroyed all the files. The court determined that there was no difference
between transmitting a program intended to do harm and physically inserting a disk with the
same intention. The court also held that even though the defendant employee was authorized to
destroy data, he was not authorized to destroy data he knew the company would want.
Non-Solicitation Agreements
Mona Electric Group, Inc. v. Truland Service Corp., 6 Fed. Appx. 108 (4th Cir. 2003).
The court held that it is not a violation of a non-solicitation agreement when a contractor
leaves one company for another, with a similar job title and the first company’s customers
voluntarily contact the employee at the new company for the same type of work. The lack of
solicitation by the employee was central to the decision in this case.
Non-Compete Agreements
See Vanko, “You’re Fired! And Don’t Forget Your Noncompete...”: The Enforceability of
Restrictive Covenants in Involuntary Discharge Cases, 1 DePaul Bus. & Comm. L.J. 1 (Fall
2002).
The Fonda Group, Inc. v. Erving Industries, Inc., 897 F. Supp 230 (E.D. Pa. 1995).
Federal court deemed the practice of assigning a restrictive covenant to be suspect. The
Pennsylvania Supreme Court has yet to pass on this issue. In All-Pak v. Johnston, 694 A.2d 347
(Pa. Super. 1997) the superior court held that a restrictive covenant may not be assigned by the
employer, absent consent of the employee or a provision in the contract authorizing assignment.
141
U-4/U-5 Cases
Morgan v. Smith Barney, Harris Upham & Co., 729 F.2d 1163 (8th Cir. 1984).
Judge Gibson delivered the opinion of the court. When hired, Mr. Morgan completed
and submitted a U-4 form for membership in the New York Stock Exchange and other
organizations. Rule 347 of the NYSE Arbitration Code provides that “any controversy . . .
arising out of the employment or termination of employment . . . shall be settled by arbitration.”
Tow years after Mr. Morgan left respondent employer, employer told customers that they were
investigation Mr. Morgan’s bookkeeping and as a consequence the NYSE Division of
Enforcement and the Missouri Securities Commission investigated him, resulting in the loss of
professional opportunity. The court stated two principles relevant in resolving this matte. First,
parties may only be bound to arbitration if they agree to it by contract. Second, when contractual
languages is unclear, a recognition of the federal policy favoring arbitration. The court cited
Coudert v. Paine Webber Jackson & Curtis, 705 F.2d 78 (2d Cir. 1983), as an example of the
applicability of Rule 347 to non-commercial torts. The court, however, criticized the 2nd
Circuit’s decision, finding it full of “serious weaknesses” and too constrained by its “rigid
temporal approach” to arbitration under Rule 347. The court believes that using the
aforementioned dual principal approach effectuates a more just outcome. It concluded that “the
language arising out of contained in Rule 347 requires arbitration of tort as well as contract
claims which involve significant aspects of the employment relationship, including but not
limited to explicit contractual terms.” The court held the claims to be outside the scope of Rule
347. Mr. Morgan pushed for non-0arbitrability of his claims in part on the basis that he would
lose the ability to collect punitive damages if the claims were arbitrated, but the court was
unpersuaded stating that the “potential unavailability of punitive damages is not a ground for
denying effect to an otherwise valid agreement to arbitrate.”
Rosenberg v. MetLife, Inc., 2006 U.S. App. Lexis 16195 (2d Cir. 2006).
In a libel action filed by a terminated broker, the broker claimed that statements made by
his former employer on the NASD employee termination form, Form U-5, were defamatory.
The defendant argued that employer statements on a U-5 are absolutely privileged under New
York law. The Second Circuit, finding that this was an unsettled issue of New York law,
certified the following question to the New York Court of Appeals: Are statements made by an
employer on a Form-U-5 subject to an absolute or qualified privilege?
142
Work for Hire
Twentieth Centuary Fox Film Corp. v. Entm’t Distrib., 429 F.3d 869 (9th Cir. 2005).
The court found that a book written by Dwight D. Eisenhower was a “work for hire” and
therefore the plaintiff did not obtain the copyright to it from the publisher and defendant then
violated that copyright by using excerpts from the book in a World War II documentary. The
court found it significant that the publisher asked General Eisenhower to write the book and paid
for the book to be written. The plaintiff also produced evidence showing that the publisher and
General Eisenhower believed that the publisher had the copyright to the book.
Wrongful Demotion
Baragar v. State Farm Ins. Co., 860 F. Supp. 1257 (W.D. Mich. 1994).
The court concluded that an insurance sales representative who was demoted could not
sue on an implied contract theory, holding that Toussaint’s recognition of wrongful termination
did not apply in light of Dumas v. Auto Club Ins. Ass’n, 473 N.W. 2d 652 (Mich. 1991) in which
the Michigan Supreme Court held that Toussaint’s implied contract doctrine did not apply to
constrain an employer’s ability to reduce the compensation of its sales employees. See also
Fischhaber v. General Motors Corp, 436 N.W. 2d 386, 389 (Mich. App. 1988) (court holding,
without explanation, that Toussaint did not apply to wrongful demotions). But see Richards v.
Detroit Free Press, 433 N.W. 2d 320, 322 (Mich. App. 1988), remanded on other grounds, 448
N.W. 2d 351 (Mich. 1989) (Court held that a wrongful demotion in violation of company policy
was a viable cause of action).
Scott v. Pacific Gas and Electric Co., 904 P.2d 834 (Calif. 1995).
The California Supreme Court held that there was sufficient evidence to conclude that
defendant entered into an enforceable implied contractual agreement not to demote its employees
without cause.
Jewett v. General Dynamics Corp., 1997 Conn. Super. LEXIS 1264 (Conn. Super. Ct. 1997).
A Connecticut Superior Court declined to recognize a new cause of action, wrongful

demotion.
143
Termination for Hiring a Lawyer or commencing a lawsuit
Muskowitz v. Progressive Insurance, 811 N.E. 2d 174 (Ohio Misc. 2004).
The court denied defendant’s motion for summary judgment ruling that an issue of
material fact existed as to whether defendant’s termination of plaintiff for bringing a lawsuit
against defendant under her insurance policy was a violation of public policy under Chapman v.
Adia Services, Inc, 688 N.E.2d 604 (Ohio App. 1997) because it violated the public policy of
allowing unfettered access to the courts.
Demarco v. Publix, 384 So.2d 1253 (Fla. 1980).
The Florida Supreme Court holds that employer can fire employee at will where
employee filed a personal injury lawsuit on behalf of his daughter against the employer.
Chapman v. Adia Serives, Inc, 688 N.E. 2d 604 (Ohio App. 1997).
Court permitted public policy tort claim by employee who was fired for consulting an
attorney regarding an injury on the employer’s premises.
Fulford v. Burndy Corp., 623 F.Supp. 78 (D.N.H. 1985).
The court denied a motion to dismiss where defendant fired the plaintiff because plaintiff
filed a lawsuit against a supervisor.
McCloskey v. Eagleton, 789 S.W. 2d 518 (Mo. App. 1990).
Plaintiff, an attorney, predicated a public policy tort claim, arising out of his discharge
from a firm for filing a personal lawsuit against another firm, on Missouri’s open Courts
constitutional provision, and the court of appeals rejected the claim.
Corporate Governance
In re Walt Disney Co. Derivative Litig., 2005 Del. Ch. LEXIS 113; 35 Employee Benefits Cas.
(BNA) 1705 (Del. Ch. 2005).
Applying the business judgment rule, the Chancery court validated Walt Disney
Company’s decision to spend what the court characterized as a “breathtaking” amount of money
144
hiring and firing Michael Ovitz as its President. The case had been filed by stockholders,
challenging Ovitz’s severance package which was valued in excess of $100 million. Chancellor
William B. Chandler III stated that even though “there are many aspects of defendants’ conduct
that fell significantly short of the best practices of ideal corporate governance,” the directors
acted in good faith and with honesty of purpose, and thus under the “unusual” facts of the case,
satisfied the minimum legal requirements of Delaware law.
Settlement
White v. Jungbauer, 128 P.3d 263 (Colo. Ct. App. 2005).
The Colorado Court of Appeals held that a client can still sue his lawyer for malpractice
even after accepting a settlement agreement in lieu of taking the matter to trial. The fact that the
issue never made it to court does not change the standards expected from the lawyer and lawyers
are still liable for their conduct.
145

Plaintiffs' and Defendants' Bars Current Developments in Employment Law 2008

Cargado por

Información del documento

Título original

Derechos de autor

Formatos disponibles

Compartir este documento

Compartir o incrustar documentos

Opciones para compartir

¿Le pareció útil este documento?

¿Este contenido es inapropiado?

Copyright:

Formatos disponibles

Plaintiffs' and Defendants' Bars Current Developments in Employment Law 2008

Cargado por

Copyright:

Formatos disponibles

15th Annual Advanced ALI-ABA Course of Study

for Plaintiffs’ and Defendants’ Bars

Current Developments in Employment Law

July 24-26, 2008

STATE EMPLOYMENT LAW DEVELOPMENTS

ROBERT B. FITZPATRICK, ESQ.

THE INFORMATION CONTAINED HEREIN IS BASED UPON SOURCES BELIEVED TO BE ACCURATE

THIS PAPER IS PRESENTED AS AN INFORMATIONAL SOURCE ONLY. IT IS INTENDED TO ASSIST

EXPRESS WRITTEN CONTRACT .......................................................................................... 2

IMPLIED CONTRACT ............................................................................................................... 8

PROMISSORY ESTOPPEL ..................................................................................................... 13

CONTRACT INTERPRETATION .......................................................................................... 14

UNJUST ENRICHMENT .......................................................................................................... 15

PUBLIC POLICY TORT .......................................................................................................... 17

DEFAMATION BY CONDUCT ............................................................................................... 50

ASSAULT AND BATTERY ...................................................................................................... 51

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS............................................ 52

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS................................................ 55

NEGLIGENT HIRING .............................................................................................................. 59

NEGLIGENT RETENTION ..................................................................................................... 60

NEGLIGENT SUPERVISION .................................................................................................. 61

NEGLIGENT DISCHARGE ..................................................................................................... 61

TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS ........................... 66

TORTIOUS INTERFERENCE WITH PROSPECTIVE ADVANTAGE ............................ 70

CIVIL CONSPIRACY ............................................................................................................... 71

STATE WHISTLEBLOWERS LAW....................................................................................... 74

STATE ANTI-DISCRIMINATION LAWS ............................................................................. 78

INDIVIDUAL LIABILITY UNDER ANTI-DISCRIMINATION LAWS ............................ 81

AIDING AND ABETTING........................................................................................................ 84

APPLICATION OF FARAGHER/ELLERTH DEFENSE UNDER STATE ANTI-

STATE/LOCAL LAWS PROHIBITING SEXUAL ORIENTATION/GENDER

STATE LAWS PROHIBITING DISCRIMINATION BASED ON GENETIC

VIRGINIA GENETIC TESTING LAW .................................................................................. 87

STATE LAW PROHIBITING DISCIPLINE BECAUSE OF DISPLAY OF AMERICAN

STATE LAW PROHIBITING “ENGLISH ONLY” POLICIES .......................................... 87

VOLUNTEER PROTECTION ACT OF ARIZONA ............................................................. 88

NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT............................. 88

COVENANT OF GOOD FAITH AND FAIR DEALING ...................................................... 88

INEVITABLE DISCLOSURE DOCTRINE IN NON-COMPETE LITIGATION ........... 100

SEVERANCE PAY................................................................................................................... 102

BREACH OF FIDUCIARY DUTY/ DUTY OF LOYALTY................................................ 104

EXCLUSIVITY OF WORKERS COMPENSATION .......................................................... 105

STATUTE OF FRAUDS .......................................................................................................... 109

DAMAGES – TAX CONSEQUENCES ................................................................................. 116

BREACH OF CONTRACT – MENTAL ANGUISH............................................................ 116

BREACH OF CONTRACT – ATTORNEY’S FEES............................................................ 116

BREACH OF CONTRACT – CONSEQUENTIAL DAMAGES ........................................ 117

BREACH OF CONTRACT – STOCK OPTIONS ................................................................ 118

BREACH OF CONTRACT—CONTINUED LIABILITY .................................................. 119

WAGE COLLECTION LAWS ............................................................................................... 119

BREACH OF CONTRACT – TERMS................................................................................... 125

CONVERSION ......................................................................................................................... 126

UNFAIR BUSINESS PRACTICES STATUTE..................................................................... 127

ANTI-SLAPP STATUTE......................................................................................................... 128

SHAREHOLDER CLAIMS .................................................................................................... 129

PUNITIVE DAMAGES ........................................................................................................... 129

PREEMPTION ......................................................................................................................... 130

VENUE ...................................................................................................................................... 132

EMPLOYER’S LIABILITY FOR ACTIONS OF EMPLOYEE......................................... 133

SEXUAL HARASSMENT ....................................................................................................... 134

ADMINISTRATIVE HEARINGS .......................................................................................... 135

ETHICS ..................................................................................................................................... 136

TRADE SECRETS ................................................................................................................... 137