Szaller v. American National ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSEPH SZALLER, 
Plaintiff-Appellant,
v.
THE AMERICAN NATIONAL RED CROSS;  No. 01-2014
THE AMERICAN RED CROSS GREATER
CHESAPEAKE AND POTOMAC BLOOD
SERVICES REGION,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, Chief District Judge.
(CA-01-1387-S)
Argued: April 4, 2002
Decided: June 5, 2002
Before WILKINSON, Chief Judge, and WILLIAMS and
TRAXLER, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Williams and Judge Traxler joined.
COUNSEL
ARGUED: George Edwin Golomb, Baltimore, Maryland, for Appel-
lant. Neal David Mollen, PAUL, HASTINGS, JANOFSKY &
WALKER, L.L.P., Washington, D.C., for Appellees. ON BRIEF:
2 SZALLER v. AMERICAN NATIONAL RED CROSS
Barbara B. Brown, Diana Embrey, PAUL, HASTINGS, JANOFSKY
& WALKER, L.L.P., Washington, D.C., for Appellees.
OPINION
WILKINSON, Chief Judge:
Plaintiff Joseph Szaller claims that the American National Red
Cross and the American Red Cross Greater Chesapeake and Potomac
Blood Services Region (collectively the "Red Cross") wrongfully dis-
charged him in violation of Maryland law. Szaller contends that he
was unlawfully terminated for reporting alleged violations of Food
and Drug Administration regulations and a consent decree to a Red
Cross hotline. The district court dismissed Szaller’s complaint and
denied Szaller’s motion for leave to file a second amended complaint.
Because Szaller’s discharge did not contravene a clear mandate of
Maryland public policy, we affirm the judgment.
I.
Joseph Szaller was employed by the Red Cross for three and a half
years as a medical team manager. In this capacity, he supervised sev-
eral other staff members and was responsible for collecting blood
from volunteer donors on bloodmobiles in Howard County, Mary-
land.
On February 22, 2001, Szaller placed a telephone call to an anony-
mous Red Cross hotline. During this call, he reported various blood
handling and staff training deficiencies which he believed violated
FDA regulations and provisions of a 1993 consent decree between the
FDA and the Red Cross regarding, inter alia, training and quality
assurance. Szaller was suspended from work the day after he called
the hotline, and his employment with the Red Cross was terminated
on March 7, 2001. Szaller claims that he was suspended and fired
because he complained to the hotline. While the Red Cross denies that
Szaller’s termination had anything to do with his calling the hotline,
we accept Szaller’s allegations as true because the district court dis-
missed his complaint under Fed. R. Civ. P. 12(b)(6). See, e.g., Milton
v. IIT Research Inst., 138 F.3d 519, 520 (4th Cir. 1998).
SZALLER v. AMERICAN NATIONAL RED CROSS 3
Szaller then initiated this action, alleging that his termination vio-
lated a clear mandate of Maryland public policy and was therefore a
wrongful discharge under Maryland law. Szaller sought $250,000 in
compensatory damages, punitive damages, and court costs.
On July 25, 2001, the district court dismissed Szaller’s complaint.
The district court recognized that Maryland law provides a cause of
action for wrongful discharge when an at-will employee’s termination
"contravenes some clear mandate of public policy." Adler v. Am.
Standard Corp., 432 A.2d 464, 473 (Md. 1981). However, the court
concluded that Szaller’s claim had to be dismissed because "no Mary-
land court ha[d] ever identified a consent decree or provisions of the
Code of Federal Regulations, not criminal in nature, as sources of
clear mandates of public policy." Further, the court stressed that Szal-
ler did not claim that the Red Cross directed him to violate the con-
sent decree or FDA regulations.
The district court also denied Szaller’s request for leave to file a
second amended complaint. Szaller sought to add citations to particu-
lar sections of the regulations, namely 21 C.F.R. §§ 600.10,
600.11(h), 606.20(b)-(c), 606.100, to the consent decree, and to a
December 2, 2000 newspaper article discussing FDA inspections of
the Red Cross. The district court found that these additional docu-
ments "add[ed] nothing to the viability of plaintiff’s claims." Szaller
appeals.
II.
A.
Ordinarily, an at-will employee may be discharged for any reason
whatsoever. See, e.g., Adler, 432 A.2d at 467. However, Maryland
recognizes the tort of wrongful or abusive discharge as a "narrow
exception" to this general rule. E.g., Lee v. Denro, Inc., 605 A.2d
1017, 1020 (Md. Ct. Spec. App. 1992). Under this limited exception,
an at-will employee’s termination may not contravene a "clear man-
date of public policy." Adler, 432 A.2d at 473.
An employee asserting that he was wrongfully discharged must
specifically identify the clear mandate of Maryland public policy that
4 SZALLER v. AMERICAN NATIONAL RED CROSS
was violated by his termination. See, e.g., Adler, 432 A.2d at 470-72.
Maryland’s legislative enactments, prior judicial decisions, and
administrative regulations serve as the primary sources of the state’s
public policy. See, e.g., id. at 472. Due to a concern with opening the
"floodgates of litigation," however, Maryland has not found a man-
date of public policy sufficiently clear for purposes of a wrongful dis-
charge action in every state statute or regulation. See, e.g., Bagwell
v. Peninsula Reg’l Med. Ctr., 665 A.2d 297, 310 (Md. Ct. Spec. App.
1995).
Maryland courts have stressed that in order for a mandate of public
policy to be well-established enough to form the basis of a wrongful
discharge action, there "must be a preexisting, unambiguous, and par-
ticularized pronouncement, by constitution, enactment, or prior judi-
cial decision, directing, prohibiting, or protecting the conduct in
question so as to make the public policy on the relevant topic not a
matter of conjecture or interpretation." Porterfield v. Mascari II, Inc.,
788 A.2d 242, 245 (Md. Ct. Spec. App. 2002); see also, e.g., Lee, 605
A.2d at 1021. Maryland has placed these limits on what constitutes
a clear mandate of public policy because it "limits judicial forays into
the wilderness of discerning public policy without clear direction
from a legislature or regulatory source." Milton, 138 F.3d at 523.
B.
Szaller argues that the Red Cross violated a clear mandate of public
policy by discharging him for reporting allegedly improper blood
handling procedures to a Red Cross hotline. We disagree. Szaller can-
not point to a single mandate of Maryland public policy that his termi-
nation contravened. He relies solely on FDA regulations and a
consent decree between the FDA and the Red Cross to support his
wrongful discharge claim. Maryland courts, however, have given no
indication that federal regulations or consent decrees constitute Mary-
land public policy. And absent any suggestion that Maryland would
recognize a claim for wrongful discharge in the circumstances
presented by Szaller’s termination, we cannot conclude otherwise and
extend state law through judicial conjecture.1
1
The Maryland Court of Special Appeals has assumed without decid-
ing that an employee might be able to base a wrongful discharge action
SZALLER v. AMERICAN NATIONAL RED CROSS 5
Szaller simply cannot rely on federal regulations as a mandate of
Maryland public policy. Although federal law can preempt state law
under the Supremacy Clause, this in no way implies that federal law
automatically defines state policy, or that federal agencies can deter-
mine its parameters. Perhaps the regulations and consent decree pro-
visions Szaller points to in his proposed second amended complaint
would constitute clear mandates of federal policy. But federal policy
is enforced by the means Congress specifies, not through state-law
wrongful discharge actions.
It would be an astonishing step for a federal court to impose in the
first instance the entire Code of Federal Regulations on every Mary-
land employer. There are thousands and thousands of pages in the
fifty titles of the C.F.R. If a federal court were to announce that these
were all sources of Maryland public policy, an employee could immu-
nize himself against adverse employment action simply by reporting
an alleged violation of any regulation. And the narrow wrongful dis-
charge exception, carefully carved out by the Maryland courts, would
then supplant the general at-will employment rule. Such a ruling
would turn federalism on its head.
In an attempt to address the overwhelming burden his position
would place on Maryland employers, Szaller contended at oral argu-
ment that only federal regulations dealing with situations of "extreme
importance" should be included in the state’s public policy. Szaller
further argued that the FDA regulations at issue here, addressing the
proper collection of blood, are of such importance. Yet Szaller was
unable to give any meaningful guidance about which regulations
would qualify as Maryland public policy and which ones would not,
or how a court would even begin to determine which ones were "im-
portant" enough to support a wrongful discharge action. Szaller urges
that we simply use "good judgment" to draw the line between various
on an asserted violation of federal statutes. Lee, 605 A.2d at 1021 n.2
(ultimately rejecting employee’s claim because federal statute promoting
"maximum achievable safety in air transportation" was too amorphous to
constitute a clear mandate of public policy). However, absent an
employee being asked to violate a federal criminal statute, no Maryland
court has ever held as much. See Magee v. Dansources Technical Servs.,
Inc., 769 A.2d 231, 257 & n.11 (Md. Ct. Spec. App. 2001).
6 SZALLER v. AMERICAN NATIONAL RED CROSS
regulations, or write a narrow decision for this case only. But all fed-
eral regulations address areas of public concern, and a litigant could
argue that all federal policies protect cogent and compelling interests.
If the Maryland courts or legislature wish to define which federal reg-
ulations also qualify as clear mandates of state public policy, they are
free to do so. But federal courts cannot draw the line for Maryland.
Similarly, the 1993 consent decree between the FDA and the Red
Cross cannot form the basis of Szaller’s wrongful discharge claim. It
is true that a consent decree "has elements of both judgment and con-
tract," and is subject to "judicial approval and oversight" generally not
present in other private settlements. Smyth v. Rivero, 282 F.3d 268,
279-80 (4th Cir. 2002). But the consent decree is not Maryland public
policy. It is a court-approved settlement agreement dealing with, inter
alia, training and quality assurance procedures that the Red Cross
agreed to follow. It was drafted by lawyers and approved by a single
federal district court judge. No elected Maryland official has consid-
ered its contents or adopted it as an expression of the general policy
of the state. And no Maryland court has ever indicated that such a
consent decree might articulate a clear mandate of public policy.
Therefore, it would be inappropriate for a federal court to assume that
the state would do so in this case.
III.
Furthermore, even if we were to conclude that the federal regula-
tions and the consent decree could embody Maryland public policy,
Szaller would still fail to state a claim for wrongful discharge. Mary-
land courts have found a mandate of public policy sufficiently clear
to support such an action 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, e.g., Adler, 432 A.2d at 470; Adler v. Am. Standard
Corp., 830 F.2d 1303, 1306-07 (4th Cir. 1987); Milton, 138 F.3d at
522. As the district court noted, Szaller did not allege that he was
asked to violate the FDA regulations or the consent decree. And none
of the provisions Szaller cited in his proposed second amended com-
plaint imposed a legal duty or right upon him to report potential viola-
tions to the Red Cross hotline.
SZALLER v. AMERICAN NATIONAL RED CROSS 7
Szaller argues that by failing to comply with the FDA regulations
and consent decree, the Red Cross was implicitly asking him to col-
lect blood in a way that violated federal law. However, such an alle-
gation is insufficient to state a claim for wrongful discharge. Under
Maryland law, the employee must allege that his employer asked him
to do something unlawful and discharged him for refusing, not merely
that there was an unspoken expectation of silence regarding the
employer’s purported contravention of a law. See, e.g., Milton, 138
F.3d at 522-23.
Szaller also maintains that he was in a position to discover and
report alleged violations, and that he was motivated by his conscience
to call the Red Cross hotline. But these facts do not indicate that the
regulations or consent decree imposed a legal duty upon Szaller to
place the call. All of the provisions Szaller refers to impose obliga-
tions on the Red Cross to comply with certain standards. They do not,
however, mandate that employees such as Szaller report potential
deficiencies in the Red Cross’ performance. As the district court cor-
rectly noted, Maryland does not provide "a general ‘whistle blower’
cause of action" for an at-will employee who reports a violation of
federal or state law. See, e.g., Milton, 138 F.3d at 523 (citing cases).
And Congress has not created one either. Therefore, it would be inap-
propriate for a federal court to create such a protection by expanding
the wrongful discharge cause of action to all employees who are ter-
minated for reporting potential illegalities.2
IV.
It is worth reiterating that the question here is not whether dis-
charging Szaller "was fair, justified, sensible, reasonable, or appropri-
ate. Rather, the question is whether it was wrongful, i.e., whether it
violated a clear mandate of public policy." Shapiro v. Massengill, 661
A.2d 202, 215 (Md. Ct. Spec. App. 1995). Maryland courts have been
2
The district court did not abuse its discretion in denying Szaller’s
motion for leave to file a second amended complaint. Even with the pro-
posed amendments, Szaller would have failed to state a claim, and
"[l]eave to amend may properly be denied where amendment would be
futile." GE Inv. Private Placement Partners II v. Parker, 247 F.3d 543,
548 (4th Cir. 2001).
8 SZALLER v. AMERICAN NATIONAL RED CROSS
cautious in creating Maryland public policy without a clear signal
from the Maryland legislature. And "[i]t would be even less appropri-
ate for a federal court to undertake this delicate task with no more
guidance than we have here" from the state. Milton, 138 F.3d at 523.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED