Eyler, Deborah S., Kehoe, Kenney, James A., III (Retired, Specially Assigned), JJ.
Eyler, Deborah S., J.
In the Circuit Court for Montgomery County, Donna Jackson, the appellee/cross-appellant, brought a retaliation action pursuant to Md. Code (2009 Repl. Vol., 2010 Supp.), section 20-1202 of the State Government Article ("SG"), asserting a violation of section 27-19(c) of the Montgomery County Code ("MCC") against Edgewood Management Corporation ("Edgewood"), the appellant/cross-appellee, her former employer. Jackson alleged that Edgewood had constructively terminated her employment in retaliation for reporting a sex discrimination complaint made by a subordinate. She sought compensatory and punitive damages, as well as attorneys' fees.
Jackson's case was tried to a jury. On a special verdict form, the jury found in favor of Jackson, awarding her $500, 000 in "economic damages" and $150, 000 in "compensatory damages." The court entered judgment in Jackson's favor for $650, 000 ("the Judgment").
Edgewood filed a ten-day motion to amend the Judgment to "conform with the [MCC]" and a motion for judgment notwithstanding the verdict ("JNOV"). Jackson filed a post-judgment memorandum addressing her entitlement to punitive damages.
The court denied Edgewood's motion for JNOV and granted its motion to amend the Judgment to conform with the MCC. The court entered an amended judgment reducing the verdict to $89, 195, comprised of back-pay for two years minus the amount of unemployment benefits collected by Jackson during that time ("the Amended Judgment").
Edgewood noted an appeal, presenting five questions for our review, which we have condensed and rephrased as two:
I. Was the evidence at trial legally insufficient to sustain Jackson's retaliation claim?
II. Did the trial court err or abuse its discretion in declining to submit Edgewood's proposed special verdict sheet to the jurors?
Jackson noted a cross-appeal, presenting four questions for review, which we have condensed and rephrased as three:
I. Are the remedies for a retaliation action brought pursuant to SG section 20-1202 limited to those set forth in MCC section 27-8?
II. May economic damages for retaliatory discharge be offset by the amount of unemployment benefits the employee collected?
III. Did the trial court abuse its discretion in declining to instruct the jurors on punitive damages?
For the reasons to follow, we answer all the questions in the negative. Accordingly, we shall vacate the Amended Judgment and reinstate and affirm the original Judgment of the circuit court.
FACTS AND PROCEEDINGS
Except where noted, we present the facts in a light most favorable to Jackson, the prevailing party below.
Edgewood is a property management company headquartered in Germantown. It manages numerous properties throughout Maryland, including Glenview Garden Apartments ("Glenview") in Glen Burnie. Glenview is a 204-unit, low-income apartment complex subject to regulations by the Department of Housing and Urban Development ("HUD"). It is owned by Triton Advisors, Inc. ("Triton"), a corporation owned and operated by one Janet Charlton.
Triton had purchased Glenview with a "Section 236 loan, " a low-interest loan insured by the federal government under the National Housing Act, 12 U.S.C. § 1715z-1. In the loan agreement, HUD set the income limits for tenants in the property. See U.S. ex rel. K & R Ltd. P'ship v. Mass. Housing Finance Agency, 530 F.3d 980, 981 (D.C. Cir. 2008) (discussing Section 236 loans). Only 10% of the units in a Section 236 property can be rented to "market renters, " that is, tenants with incomes above 80% of the area median income, as determined by HUD.
In 2007, Triton began the process of transitioning Glenview from a Section 236 property to a Low Income Housing Tax Credit ("LIHTC") property. LIHTC is a federal tax-incentive program designed to encourage private development of low income properties. See Carter v. Maryland Mgmt. Co., 377 Md. 596, 603 (2003). Under this program, a property owner will receive a tax credit if a certain minimum number of residential units in the property are rent-restricted and occupied by people whose incomes do not exceed "sixty percent of the area median income, " as determined by HUD. The property owner then can sell the tax credit to investors to raise capital for improvements to the property.
Jackson has been employed by Edgewood since 1979. From 1990 until her resignation on March 25, 2010, she held the position of community manager for Glenview. At the time of her resignation, she was earning approximately $55, 000 annually.
As community manager, Jackson was responsible for the day-to-day operations of Glenview, including collecting rent, handling resident complaints and maintenance requests, and reviewing and approving rental applications. Jackson supervised one employee, Paula "Drema" Wagner, a leasing specialist at Glenview, whom Jackson hired in 1990. Art Wilcoxen was Glenview's groundskeeper.
Before 2009, Jackson's supervisor was Lisa Davis, an assistant vice-president with Edgewood. During much of that time, Scott Jones was the regional vice-president who supervised Davis. He has since become Edgewood's president and chief executive officer. Jackson received uniformly positive performance evaluations from Davis and Jones.
In September of 2009, Arturo "Art" Reyes replaced Davis as Jackson's direct supervisor. Reyes reported to Norman Azouqha, a regional vice-president who, in turn, reported to George Caruso, Edgewood's executive vice-president and chief "knowledge officer."
On or about December 7, 2009, Larry Davis, a senior vice-president at Edgewood, and Terrance Kelly, an assistant vice-president at Edgewood, called Wagner and offered her a promotion to the position of community manager at an apartment complex in Capital Heights that Edgewood managed. Wagner declined the promotion for several reasons, including the length of the commute and safety concerns. Wagner had been living in Glen Burnie for decades, near Glenview. Capital Heights is in Prince George's County, about 36 miles from Wagner's home, and in a neighborhood with a high crime rate.
On December 10, 2009, Reyes came to Glenview to discuss a tenant complaint with Jackson and to inform Art Wilcoxen, the groundskeeper, that his position was being eliminated.
Reyes met with Jackson in her office, which was located at the back of Glenview's rental office. He advised Jackson that a tenant, one Mary Barnes, had filed a complaint with the Maryland Commission on Human Relations ("MCHR") alleging that Jackson had discriminated against her on the basis of her race by failing to handle her maintenance requests promptly. Jackson responded by telling Reyes that Barnes was a problem tenant and offering to show Reyes Barnes's lengthy tenant file, which documented frequent complaints made by her and by other tenants about her. Reyes asked to see maintenance requests made by Barnes, took certain of the records, and said he would look into the matter.
Reyes asked Jackson to call Wilcoxen to her office, which she did. In Jackson's office, with the door shut, Reyes informed Wilcoxen that his position was going to be eliminated on an uncertain date in the future, for budgetary reasons. Reyes said he had wanted to give Wilcoxen a "heads up."
Following this conversation, Wilcoxen walked out of Jackson's office and into the front reception area, where Wagner's desk was located. Reyes and Jackson followed him out. Also in the reception area were Rick West, Edgewood's maintenance supervisor; Penny Ingold, another Glenview employee; a tenant; and a new rental applicant.
Wilcoxen walked over to Wagner's desk and told her he had just been laid off. Reyes then approached Wagner's desk. He said, "oh, [I heard] you didn't take the job transfer." He sat down in front of Wagner's desk and asked her why she had declined the transfer. Wagner replied, giving the reasons discussed above. Reyes told her, "well, due to the fact you didn't take the transfer, we're cutting your pay from [$]18 [per hour] down to [$]13 [per hour]." Wagner asked Reyes why her pay was being cut and when this change would go into effect. Reyes simply repeated his previous statement that her pay would be cut.
A tenant then walked into Glenview's office. Wagner tried to get Reyes to "stop speaking." Wagner said, "excuse me, " and began attempting to assist the tenant. Nevertheless, Reyes continued to "repeat what he [had] said, " announcing to Wagner that it was a "a new day, " and budgets were being cut.
At this point, Wagner was near tears. Jackson, who, like everyone in the vicinity, had overheard Reyes talking to Wagner, approached Reyes and asked if he'd like to use her office to continue his conversation with Wagner. Reyes declined, saying "we're almost finished here." He then walked into Jackson's office, collected his belongings, and left.
Immediately after Reyes departed, Wagner reported to Jackson that she believed Reyes had discriminated against her on the basis of her gender by speaking privately to a male employee (Wilcoxen) about his job being eliminated but speaking to her about a significant reduction in her pay in front of numerous employees and tenants. Wagner was extremely upset. Jackson tried to console her, remarking that she "didn't know why [Reyes] did that."
Later that day, Wagner sat down with Jackson and Wilcoxen to discuss the incident a second time. She expressed the view to both of them that Reyes had "discriminated against [her] because [she] was a woman." After leaving work for the day, Wagner remained "upset" about the incident with Reyes. She typed a letter ("the Grievance Letter") that summarized her encounter with Reyes that day:
I Drema Wagner was offered a new position [Community Manager] at another property. I declined the offer to due to having to travel & work at a bad area. I would have to travel 1 hr to 1 ½ hrs one way. I chose to work at Glenview due to I only live 10-15 minutes away, the money I was offered would not even cover my gas expenses. This position was offered to me by Larry Davis & Terrance Kelly.
On Thursday 12/10/2009 Art Reyes, Ms. Jackson supervisor told me due to I declined the job transfer my pay would properly be cut/decreased by $ 5.00 per hour. I ask Mr. Reyes why, Mr. Reyes stated this was a new day, there were budget cuts. Mr. Reyes was explaining this to me in the front office while I was answering the phone & waiting on residents and a co worker come in and Mr. Reyes kept discussing my personal business. In order to get Mr. Reyes to stop, I turned to my co worker spoke to her then turned back to look at Mr. Reyes he paused & continued discussing my personal business.
I feel Mr. Reyes should have requested me to go to a private close area to discuss my personal business. I also feel the real reason my current pay maybe cut/decreased because I would not accept the new position.
The next day, Friday, December 11, 2009, Wagner gave Jackson the Grievance Letter. Jackson initialed it and marked it as "received 12/11/09."
On Tuesday, December 15, 2009, Jackson called Reyes's supervisor, Azouqha, to report Wagner's grievance. She advised him that Wagner had "written a discrimination letter against Mr. Reyes" and explained what had happened. She told him that Wagner had said that "she felt she was discriminated against, because of her gender." Jackson also discussed with Azouqha a conflict she had had with Reyes concerning a repair to Barnes's apartment.
At the end of the conversation, Jackson asked Azouqha whether she should "forward [the Grievance Letter] to [him], or send it to HR." Azouqha replied that Jackson should put the letter in Wagner's file and to just try to "get along" with Reyes "until the rehab is over with"(referring to renovations to Glenview that were being undertaken).
Jackson followed Azouqha's directive and placed the Grievance Letter in Wagner's file. She also wrote a contemporaneous note "to document the employee file of Ms. Drema Wagner." It stated:
On 12/15/09 at approximately 11:45 a.m., I, Donna L. Jackson, Com. Mgr. for Glenview, called Mr. Norman Azouqha to inform him of a grievance letter Ms. Wagner wrote concerning the transfer offer or possible pay decrease from Mr. Art Reyes. I asked Mr. Azouqha if he wished me to send him a copy through e-mail and send to HR. Mr. Azouqha told me no and to place it in her employee file. I did as such.
Jackson also made a note in a journal she kept to record events for work. This note stated:
12/15/09 I called Mr. Azouqha and told him Mr. Reyes had Rick and 2 men from another property go to 76-101's [Barnes's apartment] bathroom and cut out the ceiling when there was no leak nor did the resident ever call in a leak and this to me didn't look good for Glenview's staff and could possibly hurt the complaint [Barnes] filed. I also told Mr. Azouqha Drema had written a complaint about Mr. Reyes due to she was embarrassed on how Mr. Reyes discussed her personal business in the front office with residents and a fellow employee present.
That same day, Jackson told Wagner that she had informed Azouqha of Wagner's complaint and that he would "take care of it." Based on her long history with Azouqha, Jackson felt certain that Azouqha would "discuss it with Mr. Reyes."
On December 29, 2009, Glenview received final approval as an LIHTC property.
Approximately one month after Jackson reported Wagner's grievance, on Saturday, January 16, 2010, at 1:23 a.m., Reyes sent an e-mail to Azouqha and Caruso, attaching a draft disciplinary memo against Jackson. The draft memo cited three instances of misconduct by Jackson that warranted disciplinary action. The first instance concerned acceptance of tenants who did not satisfy the income eligibility requirements for Glenview to be an LIHTC property. In particular, Reyes stated that "Jackson took upon her own to approve and move several applicants to units restricted by income limits and whose incomes were over the allowable incomes under HUD's rules and regulations." The second two instances of misconduct concerned information Reyes claimed to have learned in investigating the Barnes race discrimination complaint. Reyes stated that his investigation revealed that, in managing Glenview, Jackson had not met Edgewood's policy of providing corrective maintenance to tenants within 48 hours of receiving a complaint; instead, in the past year, maintenance work orders at Glenview had averaged between six to seven days for completion. Reyes further stated that he was of the view that Jackson had lied to an attorney representing Edgewood in the Barnes case when she told the attorney that after Barnes complained of a leak in her apartment the Glenview maintenance staff inspected Barnes's apartment and did not find any leaks. According to Reyes, he dispatched a quality control team to Barnes's apartment and, as Jackson knew, the team discovered a leaking overflow gasket in the bathtub in the apartment above Barnes's bathroom . Reyes's draft disciplinary memo stated th at disciplinary action was required due to these "recent incidents and findings" and advised Jackson that the memo served as her "final warning" and that she would need to "immediate[ly] improve [her] unsatisfactory performance" or face "further disciplinary action, up to and including termination of employment." The memo closed by stating that Jackson's "work performance ha[d] been of poor and careless performance [sic]" and that "her neglect of duty and misleading of facts could put the owners and the company at risk."
In the e-mail to Azouqha and Caruso attaching the draft disciplinary memo, Reyes stated that the offenses described in the draft memo "could be enough for a termination of employment."
Caruso replied to Reyes's e-mail two days later. He praised Reyes's "initial work up, " but disagreed that termination was appropriate as this was the first time Jackson had been disciplined. Caruso suggested they look into transferring Jackson and "watch [Jackson] closely going forward." He also made some edits to the draft disciplinary memo, including a note directing Reyes to add the names of the market tenants referenced in the memo.
Two days later, on January 21, 2010, Reyes e-mailed Jackson with a number of questions. As relevant here, Reyes commented that three "move ins" in 2009 had been "over the 80% income limits"; named the three market tenants; and asked whether there had been any other market tenants approved since that time.
In a reply e-mail sent that day, Jackson told Reyes that the three market tenants to whom he had referred all had been approved before Davis, who, as mentioned, was Jackson's former supervisor, had directed her by e-mail not to move in anyone else at "Market Rent." Jackson further stated that no additional market tenants had been approved since that time.
Reyes responded by asking Jackson to forward to him the income limits Davis had provided her and the "e-mail in which she [i.e., Davis] indicates that no one should move in at market rent." Jackson did so.
On January 25, 2010, Azouqha hand-delivered to Jackson a Disciplinary Action Memorandum. Reyes and Azouqha were listed as the authors and it was copied to Caruso. It was nearly identical to Reyes's draft disciplinary memo, but incorporated certain of Caruso's edits and suggested changes. It closed by advising Jackson that her performance would be re-evaluated in 30 days and listing seven areas in which she needed to improve her performance.
Three days later, Jackson sent a memorandum addressed to Reyes, Azouqha, and Caruso, and copied to Jones, rebutting the charges in the Disciplinary Action Memorandum. With respect to market tenants, Jackson explained that she always had complied with the directives she had received from her supervisors regarding income limits for tenants and that the three market tenants in question had been approved in compliance with the directives in effect at that time. Moreover, she asserted that Glenview had been the subject of numerous "audits and reviews" and she "never [had] been told [Glenview] was not in compliance with the income limits." With respect to completion of repairs, Jackson stated that the maintenance records Reyes had reviewed reflecting that work orders had taken between five to six days on average to complete were not accurate, due to a data-entry error on her part, which she would correct going forward. Specifically, when closing out work orders using Edgewood's computer software, she had not changed the completion date. As a result, the completion date reflected the date she had entered a work order as "completed" in the computer, not the date it actually had been completed. With respect to Barnes's complaints, Jackson explained Barnes's history as a "problem resident." Finally, Jackson denied ever lying to an attorney representing Edgewood in the Barnes discrimination matter.
Jackson's memorandum concluded as follows:
In closing, I would like to thank you for your time in going over my responses to all the above accusations. There may be other reasons as to why Mr. Reyes found it necessary to put in writing these accusations however at this time I wish not to discuss.
After your investigation I hope your findings will prevail this should and will be removed from my employee file.
I assure you, I will continue to be as I have always been an asset to Glenview Gardens as well as being a dedicated, honest and responsible employee.
On February 1, 2010, Jones e-mailed Reyes and Azouqha and directed them to prepare a "response for [his] signature." He copied his e-mail to Caruso. Caruso replied that he wished to sit down with Reyes and Azouqha to discuss their response, explaining that because Jackson was "trying to deny responsibility, " it was important that they reply "factually, and carefully."
On February 5, 2010, Reyes e-mailed Charlton. He advised her that Jones had directed him to "move on implementing the plan to change the staff at Glenview" and he was seeking her approval for the planned changes. He stated that, at that time, they did not have "enough to do a termination" of Jackson, but were planning to transfer her to another Triton-owned property, Glenarden, because that property could "absorb her salary." Charlton replied three days later, copying Jones, saying that while she was "anxious to get a LIHTC certified manager at Glenview, " it did not seem fair to transfer Jackson to another Triton property in order to "absorb" her salary. She sought a meeting to discuss the matter further. The following day, February 9, 2010, Jones e-mailed Charlton, explaining that Glenarden was the only possible property to which he could transfer Jackson. He further stated:
Please know that we are on the path to terminating Donna's employment but don't have enough hard evidence as of today to make it happen. There is one write up in the file and another is being worked on. However, over the next few weeks, I believe that we will have what we need. Her time at Glenarden would be short. In addition, I have a strong feeling that she may resign when we announce the transfer to her. Her world does not extend beyond Glen Burnie.
Charlton responded that if the transfer was to occur, Jackson's salary would have to be reduced.
On February 24, 2010, Reyes sent Jackson a response memorandum, rejecting each of her explanations and concluding that the disciplinary action was appropriate. The response memorandum further advised Jackson that she was being transferred to the position of community manager for Glenreed Apartments and Charles Landing Apartments. Charles Landing is located in northern Virginia, 34 miles from Jackson's home. Glenreed is located 36 miles from Jackson's home in the opposite direction. Her salary was to be decreased by $5, 000 annually "to reflect [her] new responsibilities and to adhere to the approved budget." The stated reason for this transfer was that Glenview recently had become an LIHTC property and Jackson had not passed her LIHTC certification test.
Also on that day, Reyes met with Wagner to inform her that the pay cut he previously had discussed with her was going to take effect immediately.
The next day, Jackson and Wagner both submitted letters of resignation. Jackson's letter was sent to Reyes, Azouqha, Caruso, Jones, and Charlton. It stated:
After 31 years of dedicated service to Glenview Garden Apartments it brings me great sadness that due to an unnecessary job transfer I am being forced to take which I feel has ...