Maryland

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

COURT OF APPEALS OF MARYLAND

No. 129, September Term, 1989

1991.MD.40113 ; 324 Md. 71; 595 A.2d 1067

September 13, 1991; As Corrected September 24, 1991.

FEDERATED DEPARTMENT STORES INC. T/A BLOOMINGDALE'S
v.
THACH LE

Certiorari to Court of Special Appeals; (Circuit Court for Montgomery County); William C. Miller, Judge.

Thomas B. Morrison (Francis X. Quinn, John A. Rego, Anderson & Quinn, on brief), Rockville, for petitioner.

Gary Howard Simpson (Simpson & Ehrlich, P.A., on brief), Bethesda, for respondent.

Murphy, C.J., and Eldridge, Cole,*fn* Rodowsky, McAuliffe, Adkins*fn** and Chasanow, JJ. Chasanow, J., concurs in the result only.

Eldridge
[324 Md Page 73]

This case involves an employee's statutory right to bring a common law action against his employer under § 44 of the Maryland Workmen's Compensation Act, Code (1957, 1985 Repl.Vol., 1990 Cum.Supp.), Article 101, § 44.*fn1

In the trial court, the action against the employer was concluded by the court's granting the employer's motion for summary judgment. The facts on which the motion was based are those alleged in the complaint and those contained in several depositions. They disclose the following. At the time the events which gave rise to this action occurred, the plaintiff, Thach Le, was employed as a sales person by the defendant, Federated Department Stores, Inc., doing business as Bloomingdale's. He worked at a Federated store in Montgomery County, Maryland. On the morning of April 11, 1983, Mr. Le arrived for work and left his briefcase, containing "tax papers," in the store's stockroom on top of a box. According to Mr. Le, Federated provided him "with no locker or any type of secure area where he could place his personal property while at work
[324 Md Page 74]

with a reasonable expectation that such personal property would be secure from interference by other employees." That same day, after returning from lunch, he was told by Clarence Rich, a Federated detective, to accompany Mr. Rich to the security office and bring his briefcase. Suzanne Spahr, the Regional Director of Security for Federated, was waiting in the security office when Mr. Le arrived with Mr. Rich.

According to Mr. Le, Mrs. Spahr falsely told him that someone saw him steal a calculator and conceal it in his briefcase. When Mr. Le protested, Mrs. Spahr told Mr. Le that, if he did not sign a statement confessing to the theft, Federated would prosecute, and he would have to spend substantial time in jail. Mr. Le claimed that he was not allowed to leave the security office or to make a telephone call unless he signed a statement. Mr. Rich, who was physically larger than Mr. Le, blocked the exit to the security area during Mr. Le's detention. Mr. Le eventually signed a statement confessing to the theft of the calculator, although he claimed that he did not read the statement. He was then led crying out of the store through the part of the store where he had worked.

As a result of the incident, Mr. Le's employment was terminated by Federated. A few days after the incident, Mr. Le told Federated's personnel office that he did not steal the calculator, and he applied for reinstatement. Federated, however, denied his application for reinstatement.

Mr. Le further alleged that in

"an effort to ascertain who placed the calculator in his case, Mr. Le went back and talked to employees. He learned from Lynn Gunther, another sales person, that Mrs. Spahr had gotten a calculator. Mrs. Spahr told Lynn she would probably buy it, and she would bring it back to Lynn if she didn't like it. He learned from Janet Dolan that Clarence [Rich] and Mrs. Spahr went in the stockroom and she heard some noise back there. From his investigation, Le concluded that the security people had put the calculator in his briefcase."
[324 Md Page 75]

Mr. Le subsequently instituted the present action by filing a complaint against Mrs. Spahr and Federated in the Circuit Court for Montgomery County. His complaint, as amended, contained counts charg ing false arrest, intentional infliction of emotional distress, and defamation. According to the complaint, the injuries resulting from the incident included Mr. Le's inability to secure employment "in his chosen field" and his inability to obtain other employment except as a "bus boy" at a much lower hourly wage rate. Mr. Le also asserted that the incident "has changed his whole way of dealing with people," that he finds it difficult to trust people, that he "is now afraid to lay anything down that someone could put something into," and that he could not "sleep for weeks after his discharge."

After considerable discovery, and after the setting and postponement of numerous trial dates, Federated filed a motion for summary judgment, asserting that Mr. Le's action against Federated was barred by the exclusivity provision of the Workmen's Compensation Act, Code (1957, 1985 Repl.Vol., 1990 Cum.Supp.), Article 101, § 15, which states that the employer's liability for payment of workers' compensation provided for in the statute shall be the exclusive remedy.*fn2 Federated, in its motion and accompanying
[324 Md Page 76]

memorandum, did not assert that Mr. Le had sustained "an accidental personal injury" and did not explain why § 15 was involved. Instead, Federated simply made the bald assertion that § 15 was applicable.

The focus of Federated's argument for summary judgment was upon § 44 of the Workmen's Compensation Act, which preserves an employee's right to file a common law action against his employer if the employee's injury resulted "from the deliberate intention of his employer to produce such injury . . . ." Relying on two Court of Special Appeals' opinions, Continental Casualty Co. v. Mirabile, 52 Md. App. 387, 449 A.2d 1176 (1982), and Schatz v. York Steak House, 51 Md. App. 494, 444 A.2d 1045 (1982), Federated argued that Mr. Le could opt to sue the employer at common law, as allowed under § 44, only if Mrs. Spahr was the "alter ego" of Federated or if she acted with its express authorization when she committed the acts on which Mr. Le's suit was based. Federated went on to argue that Mrs. Spahr was not the alter ego of Federated and that her alleged acts had not been expressly authorized. Federated insisted that "[t]he facts of the case at hand are substantially the same as those in Continental v. Mirabile."
[324 Md Page 77]

The plaintiff Le, in his opposition to

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