                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


DOMINIQUE K. GANTT,                   
               Plaintiff-Appellant,
                v.
SECURITY, USA, INCORPORATED,
Corporate Office,
                Defendant-Appellee,
                and
VSI, INCORPORATED, formerly known                No. 03-1033
as Security, USA, Incorporated, its
agents, employees and
representatives; TIM WELDON,
President; ANGELIA CLAGGETT, Shift
Supervisor; GARY SHEPPARD, Inmate
#266463; EARL WOOD, Project
Manager and Resident Agent,
                        Defendants.
                                      
           Appeal from the United States District Court
            for the District of Maryland, at Greenbelt.
              Deborah K. Chasanow, District Judge.
                       (CA-00-637-8-DKC)

                     Argued: September 26, 2003

                      Decided: January 23, 2004

    Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.



Affirmed in part and reversed and remanded in part by published
opinion. Judge Motz wrote the opinion, in which Judge Niemeyer and
2                    GANTT v. SECURITY, USA, INC.
Judge Luttig concurred in part and dissented in part. Judge Niemeyer
wrote an opinion concurring in Part II and dissenting from Part III and
dissenting from the judgment. Judge Luttig wrote an opinion concur-
ring in Part II and a portion of Part III, and dissenting from a portion
of Part III and from part of the judgment.


                              COUNSEL

ARGUED: Dawn Valore Martin, LAW OFFICES OF DAWN V.
MARTIN, Washington, D.C., for Appellant. Michael Sumner Levin,
DIRSKA & LEVIN, Columbia, Maryland, for Appellee. ON BRIEF:
F. Nash Bilisoly, Arlene F. Klinedinst, Christopher Ambrosio,
VANDEVENTER BLACK, L.L.P., Norfolk, Virginia, for Appellee.


                               OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

   Dominique Gantt informed her employer, a private security com-
pany, that she had obtained a protective order barring her former boy-
friend from any contact with her. But Gantt’s supervisor, apparently
believing that the estranged couple "should talk," permitted the boy-
friend access to Gantt. The boyfriend then, at gunpoint, kidnaped
Gantt from her work place and held her captive for six hours, assault-
ing and raping her. Gantt brings this action against her employer seek-
ing damages for her resulting severe emotional and mental distress;
she asserts that her employer violated its Fifth Amendment duty to
prevent sexual harassment in the workplace and intentionally inflicted
emotional distress upon her. Because no Fifth Amendment claim lies
against a private entity, we affirm the district court’s dismissal of this
claim. However, the district court erred in its analysis of Gantt’s emo-
tional distress claim; accordingly, we must reverse part of its grant of
summary judgment to the employer on this ground, and remand for
further proceedings.

                                    I.

  On November 6, 1996, upon finding that Gary R. Sheppard had
caused Gantt serious bodily harm by "repeated acts of violence," a
                    GANTT v. SECURITY, USA, INC.                     3
Maryland court granted Gantt a protective order. The protective order
barred Sheppard from abusing, threatening, or contacting Gantt any-
where — including her home or "place of employment" — and by
any means — in person, on the telephone, or in writing.

   The next day, Gantt notified her employer, Security, USA, Inc., of
the protective order and even brought a copy of the order to officials
at Security USA for their examination. Security USA Project Man-
ager Earl Wood then notified all Security USA supervisors that Gantt
should only be assigned to secured inside posts so that Sheppard
could not gain access to her at work.

   Sheppard, who worked as a security officer at another private
security company, Wackenhut Services, was "weapon qualified"; that
is, he was trained and qualified to use a gun. At Wackenhut, Sheppard
worked during the week with Sgt. Angela Claggett, who supervised
Gantt at Security USA on weekends. Sgt. Claggett acknowledged that
she had a "friendly relationship" with Sheppard.

   Sgt. Claggett testified that Security USA Manager Wood told her
when Gantt obtained a protective order against Sheppard, and that
Sgt. Claggett had been directed to move Gantt to an "inside location
at the loading dock." Gantt, herself, also talked with her supervisor,
Sgt. Claggett, about the protective order. Sgt. Claggett reported that
Gantt told her that Sheppard "hit her [Gantt] and that this hadn’t been
the first time and she was tired of it and didn’t want to go through it
anymore." In addition, Sgt. Claggett acknowledged that she knew
Sheppard had attempted to break into Gantt’s mother’s house while
Gantt was there. Gantt testified that she told Sgt. Claggett that Shep-
pard threatened to kill her if she did not "drop the charges . . . from
the previous incident at my mother’s house."

   Other sources confirmed what Gantt had told Sgt. Claggett. Shep-
pard himself talked with Sgt. Claggett about the protective order and
his conduct. He acknowledged that he had "put [his] hands" on Gantt
but claimed that he "loved her." According to Sgt. Claggett, she told
Sheppard that he "shouldn’t have done that" but that "it’s understand-
able" and "you all need to talk." Sgt. Claggett also testified that she
had heard that Sheppard threatened to "kill himself, his children, his
wife and Ms. Gantt."
4                    GANTT v. SECURITY, USA, INC.
   Despite Sgt. Claggett’s admitted knowledge of Sheppard’s abuse of
Gantt and threats to kill her, in November (after issuance of the pro-
tective order) when Sheppard telephoned Gantt at work, Sgt. Claggett
took the call and urged Gantt to talk to Sheppard. Gantt refused, say-
ing "[h]e’s not supposed to be calling me at my job." Sgt. Claggett
responded, "just talk to him" and transferred the call immediately to
Gantt. After telling Sheppard "[p]lease don’t call again . . . I’ll notify
the court" and hanging up on him, a distressed Gantt reported Sgt.
Claggett’s conduct to Project Manager Wood. Nonetheless, Sgt. Clag-
gett later in November transferred still another call from Sheppard to
Gantt, saying "all he wants to do is talk to you."

   On the first Saturday of the next month, December 7, 1996, at 6:00
A.M., Gantt reported to work for Security USA at the Internal Reve-
nue Service building in Lanham, Maryland. Sgt. Claggett was the "se-
nior person in charge"; no one else at the site was "above Ms.
Claggett." Sgt. Willie Jones, concluding his shift and being replaced
as the supervisor by Sgt. Claggett, reminded Claggett that "we got to
leave Dominique [Gantt] inside." Yet after Sgt. Jones left, Sgt. Clag-
gett ordered Gantt to assume unsecured Post #9 outside the building.
Gantt tried to refuse, reminding Sgt. Claggett "you know this stuff is
still going on and . . . I am supposed to be inside." Sgt. Claggett
ordered Gantt "to go right to" Post #9 and "just got louder and louder"
as she did so. Finally, Gantt obeyed Claggett and went outside to
unsecured Post #9.

   Within fifteen minutes of Gantt assuming her assignment at Post
#9, Sheppard telephoned her at her work station. Gantt testified that
the phone’s display indicated that Sheppard’s call was transferred to
her from Sgt. Claggett’s inside extension. During the brief telephone
call, Sheppard was "really mean" to Gantt and she hung up on him.
Distraught, Gantt then telephoned Sgt. Claggett, told her Sheppard
had "just called" and that Gantt "wanted to be moved to an inside
post." Sgt. Claggett refused to permit Gantt to move inside to safety.

  At approximately 7:00 A.M., Sheppard arrived at the IRS building
and proceeded to Gantt at Post #9. Gantt ran from Post #9 toward an
entrance to the IRS building in search of safety. Sheppard pulled a
shotgun from his trench coat and with the gun drawn and aimed at
Gantt, chased her through the area surrounding Post #9, shouting
                     GANTT v. SECURITY, USA, INC.                        5
"Run! Run!" Sheppard chased Gantt until he caught her, then grabbed
her by her arm, and pressing the shotgun against her chin, placed her
in a choke hold. Sheppard dragged Gantt along an outside area of the
IRS building, off the premises, and into his van.

   Two security guards at the IRS building witnessed Sheppard kid-
nap Gantt. One of these guards, in the presence of Officer Darren
Harvey, reported Gantt’s abduction at gunpoint to Sgt. Claggett.
When it was suggested that the police be called, Harvey testified that
Sgt. Claggett said "no, we don’t need to call the police because he
doesn’t want to hurt her, he just wants to talk to her." Someone even-
tually did call the police. At her deposition, Sgt. Claggett testified that
she did so, but acknowledged that she did not call until "five to ten
minutes" after the abduction, even though she conceded that she knew
that five or ten minutes can mean the difference between life and
death when someone is held at gunpoint.

   Sheppard held Gantt captive for six hours, driving through Mary-
land, Delaware, and the District of Columbia to evade police. He
raped and physically and verbally terrorized Gantt, threatening to kill
her with his shotgun. Gantt repeatedly begged for her life and eventu-
ally convinced Sheppard that she would reconcile with him and tell
the police she went with him willingly. Sheppard then hid his shotgun
and surrendered to the police.

   Sheppard was convicted in state court of kidnaping, first degree
rape, and violation of the restraining order. The court sentenced him
to twenty years imprisonment.

   When Gantt returned to work at Security USA, she told Project
Manager Wood and Internal IRS investigative officers she believed
that Sgt. Claggett bore responsibility for Sheppard’s assault of her.
Wood never responded to or acted on this complaint. Instead, Security
USA permitted Claggett to maintain her supervisory duties and rank
as sergeant and, when on Sgt. Claggett’s shift, Gantt had to report to
her.

   On December 2, 1999, Gantt filed suit in state court against Secur-
ity USA; the company removed the case to federal court. Gantt
alleges that as a result of the events of December 7, 1996, she has suf-
6                    GANTT v. SECURITY, USA, INC.
fered physical injury, severe emotional distress, "recurring nightmares
and other mental health issues, which have dramatically reduced her
quality of life." She contends that she has undergone "medical evalua-
tion and treatment," incurred medical expenses, and lost wages.
Although Gantt alleged a number of theories of recovery in her com-
plaint, she only appeals the district court’s rejection of her sexual
harassment and intentional infliction of emotional distress claims. We
consider each in turn.

                                   II.

   Gantt contends that the district court erred in dismissing her sexual
harassment claim. Specifically, she maintains that Security USA "fail-
[ed] to take reasonable steps to end, and indeed facilitated, the sexual
harassment by Sheppard, creating a hostile work environment." Brief
of Appellant at 14.

   In her complaint, Gantt alleged that in so failing, Security USA
violated the Fifth Amendment of the United States Constitution, Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (2000), and
Article 49B of the Maryland Annotated Code, Md. Code Ann., § 49B
(1998). The district court dismissed her statutory claims, reasoning
that Gantt failed to exhaust her administrative remedies, a prerequisite
for a Title VII claim, and that Article 49B does not create a private
cause of action of sexual harassment. Gantt does not appeal those dis-
missals. Thus, as Gantt recognizes, the only possible basis for her sex-
ual harassment claim is the Constitution. As she also recognizes, in
order to state a constitutional claim, she must allege facts, which, if
proved, would establish Security USA is a governmental actor.

   Gantt has attempted to satisfy this requirement by alleging that
Security USA "acted as an agent or instrumentality of the United
States government to protect persons and property on the premises of
the IRS building" and so had a Fifth Amendment duty to protect her
from workplace sexual harassment.1 In Bivens v. Six Unknown Fed.
    1
   On appeal, Gantt seeks to widen the legal basis of her constitutional
claim, contending that she has alleged a "violation of the Fifth and Four-
teenth Amendments of the Constitution, guaranteeing equal protection
                     GANTT v. SECURITY, USA, INC.                        7
Narcotics Agents, 403 U.S. 388 (1971), the Supreme Court did recog-
nize an implied private action for damages against agents of the
United States alleged to have violated a citizen’s constitutional rights.
However, the Court has specifically declined to "extend this limited
holding to confer a right of action for damages against private entities
acting under color of federal law." Correctional Services Corp. v.
Malesko, 534 U.S. 61, 66 (2001) (refusing to allow a Bivens claim
against a halfway house operated by private entity under contract with
the Bureau of Prisons) (emphasis added). Indisputably, Security USA
is a private entity; therefore no Bivens claim lies against the company.
For this reason, the district court properly dismissed Gantt’s constitu-
tional sexual harassment claim against Security USA.

                                   III.

   Gantt’s intentional infliction of emotional distress claim presents a
more complicated question. Although the district court denied Secur-
ity USA’s motion to dismiss this claim, the court ultimately granted
the company summary judgment on the claim. We believe the court
erred in doing so.

                                    A.

   The district court correctly recognized, that in Maryland (as in
many other jurisdictions) a claim of intentional infliction of emotional
distress has four elements:

     (1) The conduct must be intentional or reckless; (2) [t]he
     conduct must be extreme and outrageous; (3) [t]here must

under the law pursuant to 42 U.S.C. § 1983." Brief of Appellant at 14
(emphasis added). We must reject this contention. Not only has Gantt
failed to invoke the Fourteenth Amendment or § 1983 in her complaint,
but she has also failed to assert any facts in the complaint giving rise to
Security USA’s liability as a state actor. Rather, Gantt’s case for govern-
mental action hinges on her allegations that Security USA acted under
color of federal law. Moreover, the arguments Gantt asserts in her appel-
late briefs would not establish state action, even if she had alleged the
necessary underlying facts in her complaint.
8                    GANTT v. SECURITY, USA, INC.
    be a causal connection between the wrongful conduct and
    the emotional distress; (4) [t]he emotional distress must be
    severe.

Manikhi v. Mass Transit Admin., 758 A.2d 95, 113 (Md. 2000) (inter-
nal quotation marks and citations omitted).

   In its seminal case recognizing intentional infliction of emotional
distress as a valid tort in Maryland, the state’s highest court relied on
Restatement (Second) of Torts § 46, comment i (1965) to explain the
first element:

    the defendant’s conduct is intentional or reckless where he
    desires to inflict severe emotional distress, and also where
    he knows that such distress is certain, or substantially cer-
    tain, to result from his conduct; or where the defendant acts
    recklessly in deliberate disregard of a high degree of proba-
    bility that the emotional distress will follow.

Harris v. Jones, 380 A.2d 611, 614 (Md. 1977); accord, B.N. v. K.K.,
538 A.2d 1175, 1180 (Md. 1988); see also, Kentucky Fried Chicken
Nat’l Mgmt. Co. v. Weathersby, 607 A.2d 8, 17 (Md. 1992) ("We
apply the law of intentional infliction of emotional distress as we
adopted it nearly 15 years ago in Harris v. Jones."); Foor v. Juvenile
Services Admin., 552 A.2d 947, 959 (Md. Ct. Spec. App. 1989)
(explaining that to meet the first element a plaintiff must offer evi-
dence that "the defendant either desired to inflict severe emotional
distress, knew that such distress was certain or substantially certain
to result from his conduct, or acted recklessly in deliberate disregard
of a high degree of probability that the emotional distress will fol-
low." (emphasis in original)).

   The district court properly stated and applied this standard in con-
cluding that Gantt had satisfied the first element of the tort with
respect to one portion of her intentional infliction of emotional dis-
tress claim. The court reasoned that Gantt:

    has forecasted evidence that Claggett’s assignment of Plain-
    tiff [i.e. Gantt] to Post 9 was an intentional act given that
                    GANTT v. SECURITY, USA, INC.                      9
    Claggett was aware that Sheppard has talked about killing
    Plaintiff, that Plaintiff was afraid of Sheppard, and that she
    had obtained a restraining order against him. Looking at the
    evidence in the light most favorable to the Plaintiff, one
    could conclude that Claggett intentionally assigned Plaintiff
    to a post where she knew Plaintiff would be in fear and then
    refused Plaintiff’s requests to leave the post after Sheppard
    called her there.

   This conclusion seems unassailable. However, turning to the third
and fourth elements, the court rejected Gantt’s intentional infliction
of emotional distress claim, concluding that the emotional distress
actually caused by Claggett’s intentional conduct — which the court
determined to be "the fear she suffered while waiting at the post" —
did not meet "the high burden imposed by the requirement that a
plaintiff’s emotional distress be severe." (emphasis in original and
internal quotation marks and citation omitted). This was error.

   The court artificially restricted the emotional distress caused by
Claggett’s intentional conduct to the fear Gantt experienced while
waiting at the post, ignoring the fact that Gantt has testified that the
hour she spent waiting in fear of Sheppard’s arrival had a longer-term
emotional impact. Gantt has alleged not just that her abduction and
rape caused severe emotional distress, but generally that "[a]s a result
of the injuries sustained on December 7, 1996," she has been caused
"recurring nightmares and other mental health issues which have dra-
matically reduced her quality of life." Gantt has testified that she has
been forced by the events of December 7 (not just the abduction and
rape) to seek psychiatric or psychological counseling for anxiety
attacks, when she never before had suffered such attacks or sought
such counseling. Gantt also testified that she "still" cannot "go too
many places by myself" and she "keeps having anxiety attacks,"
which occur "three, four and five times a week" and frequent night-
mares.

   Security USA has failed to offer convincing evidence indicating
that Claggett’s assignment of Gantt to unsecured Post #9 and Clag-
gett’s obdurate refusal to remove Gantt even after Sheppard tele-
phoned her there could not have caused a significant portion of the
severe emotional distress that Gantt testified she continued to suffer
10                  GANTT v. SECURITY, USA, INC.
after December 7. Given this record, we cannot hold that the district
court properly granted summary judgment on this basis. We note that
Maryland’s highest court has held that an employee’s far less egre-
gious conduct toward another employee caused emotional distress
sufficient to preclude summary judgment for the employer. See Fed-
erated Dep’t Stores, Inc. v. Le, 595 A.2d 1067 (Md. 1991) (holding
trial court should not have granted summary judgment to employer
when employee offered evidence a company security officer falsely
accused him of stealing a calculator and coerced him into signing a
confession, resulting in his loss of his job (not fear for his life like
Gantt) and loss of sleep "for weeks" (not still reoccurring nightmares
like Gantt)).

   With respect to the second portion of Gantt’s emotional distress
claim — that growing out of the abduction and rape — the district
court did correctly acknowledge what we believe is undeniable: the
distress suffered as a result of these acts "would likely meet the high
burden of ‘severe emotional distress.’" The court held, nevertheless,
that the acts did not provide the basis of an intentional infliction of
emotional distress claim because they were "caused by Sheppard, not
by Claggett" and no evidence suggested that Claggett "intended for
Plaintiff to suffer, or even recklessly disregarded the possibility of,
the severe emotional trauma of being abducted, threatened and
raped." (emphasis in original). The court concluded that "[o]nce
again, therefore, the causal link between wrongful intentional conduct
and severe emotional distress required by the third prong is absent."

   There are several problems with this analysis. First, the district
court seems to have concluded that the presence of an intervening
actor, Sheppard, necessarily severs any causal connection between
Claggett’s intentional conduct and the severe emotional distress suf-
fered by Gantt during the abduction. Second, given Claggett’s knowl-
edge about Sheppard’s past behavior and threats of violence, the court
too easily dismissed the argument that Claggett recklessly disregarded
a high degree of probability that assigning Gantt to Post #9 would
result in her suffering violence at the hands of Sheppard. Finally, the
court completely ignored Gantt’s evidence that Claggett aided and
abetted Sheppard, a tort that would require Claggett to only "have
engaged in assistive conduct that [s]he would know would contribute
to the happening of that act." Saadeh v. Saadeh, Inc., 819 A.2d. 1158,
                     GANTT v. SECURITY, USA, INC.                       11
1171 (Md. Ct. Spec. App. 2003). Thus Gantt appears to have forecast
evidence that Claggett engaged in conduct that knowingly assisted or
recklessly disregarded a high probability that Gantt would be sub-
jected to severe emotional distress in connection with the second por-
tion of her emotional distress claim.

  This, however, does not end the inquiry.

                                    B.

   Because, as Gantt concedes, her emotional distress arose out of,
and in the course of, her employment with Security USA, regardless
of whether she forecast evidence sufficient to prove an intentional
infliction of emotional distress claim, she must also offer evidence
that her employer deliberately intended to injure her. This is so
because the Maryland Workers’ Compensation Act, Md. Code Ann.,
Lab. & Empl. § 9-509(a)-(b)(1999)(the Act), provides Gantt’s exclu-
sive remedy unless she can prove she was injured "as the result of the
deliberate intent of [her] employer to injure" her. Id. § 9-509(d)
(emphasis added). Maryland’s high court has unequivocally held that
this intentional tort exception to the Act’s normal exclusivity rule
requires proof of the employer’s "actual, specific and deliberate intent
to injure the employee." Johnson v. Mountaire, Farms of Delmarva,
503 A.2d 708, 712 (Md. 1986). Proof of an employer’s "willful, wan-
ton, or reckless conduct" even when that conduct is "undertaken with
a knowledge and appreciation of a high risk to another" does not suf-
fice. Id. An employee cannot bring a tort action based on such evi-
dence; rather, in those circumstances, the Act provides an employee’s
exclusive remedy. Id.

   In ruling on Security USA’s motion to dismiss all of Gantt’s tort
claims on the ground that the Maryland Workers’ Compensation Act
provides her exclusive remedy for those claims, the district court
clearly understood the proper relationship between the Act and com-
mon law torts.2 The court dismissed Gantt’s negligence, gross negli-
  2
   Security USA does not. Although the company recognizes that when,
as here, an intentional tort causes the claimed injury, § 9-509(d) provides
an exception to the normal Workers’ Compensation Act exclusivity rule,
12                    GANTT v. SECURITY, USA, INC.
gence, and negligent hiring claims because it found the Act barred
Gantt from recovering from her employer in a tort action on these
bases. But the court specifically refused to dismiss the intentional
infliction of emotional distress claim, finding that the intent to injure
exception of the Workers’ Compensation exclusivity rule applied to
it.

   When considering Security USA’s motion to dismiss Gantt’s emo-
tional distress claim, the district court carefully recounted Gantt’s
allegations as to Security USA’s intent and found that, under Mary-
land law, Gantt had alleged facts sufficient to come within the intent
to injure exception. In so concluding, the court relied on the most
analogous Maryland case, Le, 595 A.2d 1067. There, an employee
sued his employer for intentional infliction of emotional distress after
a company security guard coerced him into signing an allegedly
untrue confession to theft, an act which assertedly caused the
employee to cry, lose his job, and be unable to trust people or "sleep
for weeks after his discharge." Id. at 1067. On these facts, the trial
court in Le granted the employer summary judgment, finding the
Workers’ Compensation Act provided the employee’s exclusive rem-
edy. Id. at 1070. Maryland’s highest court reversed, holding that the
"deliberate intent to injure" exception to the Workers’ Compensation
exclusivity rule applied, and so the "employer [could] be held liable"
to his employee in tort for intentional infliction of emotional distress.
Id. at 1074, 1075.

it argues that this intentional tort exception somehow requires Gantt to
prove as the "first prong" of her intentional infliction of emotional dis-
tress claim "a deliberate intent to injure." Brief of Appellee at 23. In fact,
all "prongs" of an emotional distress claim — including the first —
remain the same no matter who the plaintiff and defendant are. What the
Workers’ Compensation Act does do is preclude a covered employee
from recovering from her employer in tort unless the employee was
injured "as the result of the deliberate intent of the employer to injure."
§ 9-509(d). Thus the Act may preempt Gantt’s ability to recover in a tort
action for intentional infliction of emotional distress against Security
USA, but, contrary to Security USA’s suggestion, the Act does not
change the quantum of proof necessary to establish the "first prong" of
the tort.
                     GANTT v. SECURITY, USA, INC.                        13
   On appeal, Security USA does not contend that the district court
erred in refusing to dismiss Gantt’s emotional distress claim on
grounds of Workers’ Compensation exclusivity. Indeed, at oral argu-
ment Security USA acknowledged that this ruling was correct, given
Gantt’s "allegations." Security USA maintains, however, that on sum-
mary judgment the district court should have concluded that the "in-
tent to injure" exception to Workers’ Compensation exclusivity did
not apply to Gantt’s intentional infliction of emotional distress claim.

   We cannot agree with this argument with respect to the first portion
of Gantt’s emotional distress claim — that growing out of Claggett’s
intentionally assigning Gantt to unsecured Post #9. Certainly in con-
nection with that portion of her claim, Gantt has offered as much evi-
dence of "deliberate intent to injure" as the plaintiff-employee in Le.3
A jury could infer from the evidence proffered by Gantt that Security
USA’s supervisor, Claggett, despite awareness of Sheppard’s abuse of
Gantt and Gantt’s well-founded fear of Sheppard, believed it all-
important that Gantt and Sheppard "talk," and so deliberately deter-
  3
    Judge Niemeyer contends that because Claggett was the lowest level
supervisor, post at 19-20 (albeit the only supervisor at the time of the
December 7 incident), her conduct should not be imputed to Security for
purposes of the Workers’ Compensation "intent to injure" exception. But
Security, like any corporation, can act only through its agents, and Gantt
has specifically alleged that Security acted through its agents, "particu-
larly Sgt. Claggett," in its treatment of her. Neither in moving for sum-
mary judgment nor on appeal has Security attempted to disavow any of
Sgt. Claggett’s conduct or argue that it should not be imputed to the com-
pany for purposes of the "intent to injure" exception. The company’s
reluctance to disavow Sgt. Claggett’s conduct may well rest on its read-
ing of the directive of the Le court that "for an employer to be held liable
for the intentional torts of an employee committed within the scope of
employment, the employee need not be the alter ego of the employer"
and the "employee’s acts need not be expressly authorized" by the
employer. Le, 595 A.2d at 1074 (internal quotation marks and citations
omitted). Although Le did not delineate the precise boundaries of the
employer’s vicarious liability in the context of the "intent to injure"
exception, certainly its holding and Security’s failure to argue that Sgt.
Claggett’s conduct could not be imputed to the company counsel against
upholding the district court’s grant of summary judgment on this alterna-
tive ground.
14                   GANTT v. SECURITY, USA, INC.
mined to inflict on Gantt any emotional distress she might suffer from
talking to Sheppard, even talking to him face to face, at Post #9 on
December 7, 1996. Thus Gantt has offered evidence from which a
jury could conclude, as she asserted in opposing Security USA’s
motion to dismiss, that "Claggett intentionally inflicted emotional dis-
tress upon Dominique Gantt when she ordered her to assume Post 9,
while fearing for her life."

   With respect to the second portion of Gantt’s emotional distress
claim — that growing out of the abduction and rape — however, we
agree that Gantt has failed to offer evidence at the summary judgment
stage sufficient to support her assertion at the motion to dismiss stage
that Claggett "intentionally assigned Dominique Gantt to Post 9, with
the intention and for the purpose of giving Gary Sheppard access to
her so that he could assault her, batter her, [and] kidnap her." Gantt
simply did not present evidence from which a reasonable jury could
find that Claggett acted with an "actual, specific and deliberate intent"
to cause, and with a "desire to bring about" the assault, battery, rape,
and emotional distress resulting from them. See Johnson, 503 A.2d at
712. Just as in Johnson, Maryland’s highest court affirmed the dis-
missal of Rodney Johnson’s claim because he failed to allege facts "to
show that [his] employer had a ‘desire’ to bring about the conse-
quences of the acts or that the acts were premeditated with the spe-
cific intent to injure Rodney," so we must affirm the grant of
summary judgment on this portion of Gantt’s emotional distress claim
because she has failed to offer evidence demonstrating that her
employer "had a ‘desire’ to bring about" her abduction, rape, and
resulting emotional distress, or that its "acts were premeditated with
the specific intent" to impose this injury on her. Id.

                                  IV.

  In summary, we affirm the district court’s order dismissing Gantt’s
sexual harassment claim and that portion of its order granting sum-
mary judgment on the emotional distress claim growing out of her
abduction and rape. We reverse that portion of the order granting
summary judgment on the emotional distress claim growing out of
Claggett’s intentional assignment of Gantt to unsecured Post #9.

                       AFFIRMED IN PART AND REVERSED AND
                                        REMANDED IN PART
                     GANTT v. SECURITY, USA, INC.                     15
NIEMEYER, Circuit Judge, concurring in Part II of Judge Motz’
opinion and dissenting from the judgment:

   I concur in Part II of Judge Motz’ opinion, which affirms dismissal
of Dominique Gantt’s claims under the Fifth Amendment and Title
VII of the Civil Rights Act of 1964. But with respect to Gantt’s claim
for intentional infliction of emotional distress under state law, I would
affirm the judgment of the district court, but on different grounds.
Gantt has not shown that Security USA, Inc. ("Security USA"), her
employer, "deliberately intended" to cause the injury that Gantt suf-
fered, and therefore Gantt’s state law claim against Security USA can
only be made as a claim for benefits under the Maryland Workers’
Compensation Act. Accordingly, I dissent from the judgment remand-
ing this case to the district court for further proceedings.

                                    I

   Security USA, which contracted with the federal government to
supply security for the New Carrollton federal building in Lanham,
Maryland, employed Dominique Gantt as a security guard and
assigned her to the New Carrollton building.

   While assigned to the New Carrollton building, Gantt advised her
employer that she had obtained a protective order against her boy-
friend, Gary Sheppard, prohibiting him from contacting Gantt any-
where, including at her place of employment, and Gantt provided her
supervisors with a copy of the protective order. Security USA’s Proj-
ect Manager Earl Wood instructed all Security USA supervisors,
including Gantt’s supervisor, Sergeant Angela Claggett, to assign
Gantt to an inside post to deny Sheppard access should he violate the
protective order.

   Sometime later, in November 1996, Sergeant Claggett transferred
a telephone call from Sheppard to Gantt even though Claggett knew
that it violated the protective order. Claggett, who knew Sheppard
from another security job at which she worked, explained to Gantt,
"[A]ll he wants to do is talk to you." Claggett urged Gantt, "[J]ust talk
to him." Gantt took the telephone call, told Sheppard not to call again,
and hung up. After hanging up, Gantt reported the call to Project
Manager Wood.
16                  GANTT v. SECURITY, USA, INC.
   Several weeks later, on December 6, 1999, Sergeant Claggett
assigned Gantt to guard the underground garage, Post 9, which was
an "outside post." Within 15 minutes of taking the post, Gantt
received another telephone call from Sheppard. After the call, Gantt
notified Claggett of the call and requested to be reassigned to a loca-
tion inside the building, in accordance with Project Manager Wood’s
order. Sergeant Claggett insisted that Gantt remain at her post.

   Approximately 45 minutes later, Sheppard arrived at the New Car-
rollton building and went to Post 9, where he physically abducted
Gantt with a shotgun, forced her into his van, and drove away. When
Sergeant Claggett was advised of the abduction, she refused to call
the police, stating, "[N]o, we don’t need to call the police because
[Sheppard] doesn’t want to hurt her, he just wants to talk to her." But
five to ten minutes later, she nevertheless did call the police.

   In the meantime, Sheppard drove Gantt from the New Carrollton
building into the District of Columbia, Maryland, and Delaware. He
verbally abused Gantt, threatened her, physically assaulted her, and
raped her. In order to extricate herself from Sheppard’s control, Gantt
promised Sheppard a reconciliation if he would voluntarily turn him-
self in to the police. When he complied, the police arrested him.

   Gantt commenced this action against Security USA alleging a vio-
lation of the Fifth Amendment, a violation of Title VII of the Civil
Rights Act, and the commission of two state law torts — intentional
infliction of emotional distress and negligence. The district court dis-
missed the federal law counts and the negligence count on the ground
that they failed to state claims upon which relief could be granted.
With respect to the claim for intentional infliction of emotional dis-
tress, the district court granted summary judgment in favor of Secur-
ity USA. This appeal followed.

                                   II

   With respect to Gantt’s appeal from the district court’s dismissal
of her federal claims, I concur in what Judge Motz has written in Part
II of her opinion, and therefore, I do not address those claims any fur-
ther. Gantt did not appeal the dismissal of her negligence claim.
                     GANTT v. SECURITY, USA, INC.                     17
                                   III

   With respect to Gantt’s claim that Security USA is liable to Gantt
on her claim of intentional infliction of emotional distress, I would
affirm the judgment of the district court for the reasons that follow.

   The parties seem to agree that Gantt’s claims against Security USA
for her injuries arose "in the course of" her employment with Security
USA. See Knoche v. Cox, 385 A.2d 1179, 1182 (Md. 1978) ("‘[A]n
injury arises "in the course of employment" when it occurs within the
period of employment at a place where the employee reasonably may
be in the performance of [her] duties and while [she] is fulfilling those
duties or engaged in doing something incident thereto’" (quoting Wat-
son v. Grimm, 90 A.2d 180, 183 (Md. 1952))). The district court
observed likewise:

    It is undisputed that Gantt suffered her injuries at the hands
    of a third party, Sheppard, while at work, and that she was
    on duty at the time and expected to be at her post.

Thus, Gantt was an employee covered by the Maryland Workers’
Compensation Act. See Md. Code Ann., Lab. & Empl. § 9-101(b), (f).

   Except for specified intentional conduct, the Maryland Workers’
Compensation Act provides the exclusive remedy for injuries sus-
tained by an employee in the course of employment. See id. § 9-
509(a), (b) ("The liability of an employer under this title is exclusive
[and] the compensation provided under this title to a covered
employee . . . is in place of any right of action against any person");
Hastings v. Mechalske, 650 A.2d 274, 278 (Md. 1994). Under the
Act, Security USA would thus have to compensate Gantt for any "ac-
cidental personal injury" that Gantt were to sustain in the course of
her employment, regardless of fault as to the cause of injury. See
DeBusk v. Johns Hopkins Hosp., 677 A.2d 73, 76-77 (Md. 1996).
"Accidental personal injury" occurs and the Workers’ Compensation
Act applies even to injuries to an employee willfully caused by a third
person, so long as the injury was sustained in the course of employ-
ment. See Edgewood Nursing Home v. Maxwell, 384 A.2d 748, 753
(Md. 1978) (applying the Act to a nurse killed by her boyfriend for
reasons unrelated to her job). Accordingly, Gantt’s claim for inten-
18                   GANTT v. SECURITY, USA, INC.
tional infliction of emotional distress against Security USA is barred
by the immunity conferred by the Act unless her claim falls within the
narrow exception provided by § 9-509(d) of the Act, which authorizes
common law claims for injuries caused by the deliberate conduct of
her employer. That section provides:

     If a covered employee is injured or killed as the result of the
     deliberate intent of the employer to injure or kill the covered
     employee, the covered employee or, in the case of death, a
     surviving spouse, child, or dependant of the covered
     employee may:

         (1) bring a claim for compensation under this
             title; or

         (2) bring an action for damages against the
             employer.

Md. Code Ann., Lab. & Empl. § 9-509(d). This exception to the
immunity from common law liability requires that the injury to the
employee be the result of the employer’s deliberate intent to injure,
not simply deliberate conduct. The Act links the injury with the spe-
cific intent to bring about that injury. While the plain language of § 9-
509(d) imposes that linkage, any doubt is removed by the decision in
Johnson v. Mountaire Farms, 503 A.2d 708 (Md. 1986). In Johnson,
the Maryland Court of Appeals held that a suit against an employer
for the death of a worker where the employer placed the worker in
dangerous conditions did not qualify for the "deliberate intention"
exception to the Maryland Workers’ Compensation Act and thus was
barred. Interpreting the antecedent to § 9-509(d) (Md. Ann. Code art.
101, § 44),* the court embraced the majority view that "‘deliberate
intention’ . . . implies the formation by the employer of a specific
intention to cause injury or death combined with some action aimed
as accomplishing such result." Johnson, 503 A.2d at 711 (emphasis
added). The court specifically rejected the minority approach of West

  *In the recodification of the Maryland Code in 1991, Article 101 was
placed in the Labor and Employment Article as § 9-101 et seq., and § 44
was revised and included as § 9-509(d) with the intent of making no
"substantive change." See 1991 Md. Laws ch. 8, § 2 (revisor’s note).
                     GANTT v. SECURITY, USA, INC.                       19
Virginia, which interpreted "deliberate intent" to include "‘wilful,
wanton and reckless misconduct,’" id. (quoting Mandolidis v. Elkins
Indus., Inc., 246 S.E.2d 907, 914 (W. Va. 1978)). In applying this
specific-intent-to-injure requirement, the Court of Appeals in Johnson
rejected the plaintiff’s argument that "deliberate intention . . . requires
only that the employer intentionally do the act which happens to
cause injury," adopting rather the interpretation that the deliberate
intention exception "requires actual, specific and deliberate intent to
injure the employee." Id. at 711-12; see also Federated Dep’t Stores,
Inc. v. Le, 595 A.2d 1067, 1074 (Md. 1991).

   Turning to this case, if Security USA’s conduct is analyzed by the
actions of its Project Manager Wood, then there is undoubtedly no lia-
bility for a common law claim. Wood expressly instructed Sergeant
Claggett to assign Gantt to an inside post, undoubtedly to protect, not
to injure Gantt. Claggett’s disobedience of Wood’s direction may be
her deliberate conduct, but because that conduct was in contradiction
of Wood’s order, it cannot be considered as evidence that Security
USA, Gantt’s employer, deliberately intended to injure Gantt. To the
contrary, Security USA’s intent is manifested by the order of Project
Manager Wood, which must be construed as an order to protect Gantt
from harm.

   Not all conduct by every employee is imputed to the employer for
the purposes of the Maryland Workers’ Compensation Act. Maryland
courts historically restricted liability to acts authorized by the
employer or performed by the employer’s alter ego. See, e.g., Schatz
v. York Steak House Sys., Inc., 444 A.2d 1045 (Md. App. 1982) (con-
cluding that the conduct of an assistant manager of a restaurant in rap-
ing a fellow employee was not the intentional act of the employer so
as to constitute the deliberately intended conduct of employer under
the Act); Cont’l Cas. Co. v. Mirabile, 449 A.2d 1176 (Md. App.
1982) (concluding that the deliberate conduct of a supervisor directed
at an employee did not amount to the intentional conduct of employer
under the Act). Although the Maryland Court of Appeals in Feder-
ated Dep’t Stores cast doubt on the "alter ego" approach, the court
also noted that "it may well be that the General Assembly . . .
intended something less than the full sweep of common law
respondeat superior liability" in drafting the Workers’ Compensation
Act. 595 A.2d at 1074. In this case, Claggett was the lowest level
20                  GANTT v. SECURITY, USA, INC.
supervisor of the New Carrollton building reporting directly to a gen-
eral local supervisor and then indirectly to Project Manager Wood.
Her conduct as it related to Gantt was not only unauthorized, but
expressly disallowed, by her own supervisor. Under any analysis of
Security USA’s common law liability under Maryland’s Workers’
Compensation Act for its employees’ conduct, Claggett’s overt dis-
obedience to the order of Project Manager Wood should not be
imputed to Security USA.

   But even if we were to impute Sergeant Claggett’s conduct to
Security USA, the evidence does not support a claim that Sergeant
Claggett "deliberately intended" the injury suffered by Gantt. To the
contrary, the only evidence in the record supports a conclusion that
Sergeant Claggett personally knew Sheppard and believed that he had
only intended to talk to Gantt and work things out. I agree with the
district court’s summary of the record where the court concluded:

     [T]aking as true that Claggett assigned Plaintiff to the out-
     side post and failed to call the police after the abduction,
     there is still no evidence to suggest that Claggett intended
     for Plaintiff to suffer, or even recklessly disregarded the
     possibility of, the severe emotional trauma of being
     abducted, assaulted, threatened and raped. To the contrary,
     the evidence agreed to by Plaintiff in her statement of undis-
     puted facts shows that Claggett told Harvey that Sheppard
     only wanted to talk to Plaintiff and would not hurt her.

At most, one could conclude from the record that Sergeant Claggett
was negligent or even reckless. But a common law claim for injury
from even wanton or reckless conduct is barred by the Maryland
Workers’ Compensation Act. See Johnson, 503 A.2d at 711 (barring
common law claims based on "gross, wanton, wilful or reckless" con-
duct). Thus, regardless of whether or how Claggett’s conduct might
satisfy Maryland’s requirements for intentional infliction of emotional
distress, Claggett’s conduct, as demonstrated by the record in this
case, does not allow Gantt to escape from the bar imposed by the
Maryland Workers’ Compensation Act because that Act requires that
the employer deliberately intend to bring about the injury of which
Gantt complained, and there is no evidence to support that conclusion
even if Claggett’s conduct were imputable to Security USA.
                     GANTT v. SECURITY, USA, INC.                     21
   My colleagues suggest that factual questions remain about Clag-
gett’s intent to injure based on circumstances that Claggett knew of
facts underlying the protective order against Sheppard and that Clag-
gett must have intended the uncomfortable anxiety that Gantt suffered
in manning Post 9 before Sheppard arrived. Were such injury the
totality of the matter, it surely would fall short of constituting injury
for purposes of either the Maryland Workers’ Compensation Act or
intentional infliction of emotional distress. Moreover, the record in
this case provides no support, absent speculation, that Claggett even
intended to injure Gantt by creating anxiety for her. To the contrary,
the record shows that Claggett was intending to act, however clum-
sily, as counselor or peacemaker, assuring Gantt that Sheppard only
wanted to talk to her and repair their relationship. Claggett’s mis-
guided judgment and perhaps even recklessness, however, cannot
support a finding that she deliberately intended to injure Gantt. See
Johnson, 503 A.2d at 711.

   Because the conduct alleged and established on the record for sum-
mary judgment does not fit the narrow exception to common law
immunity provided by the Maryland Workers’ Compensation Act,
Gantt’s claim against Security USA must be for benefits under that
Act, and I would therefore affirm the district court’s summary judg-
ment in favor of Security USA on Gantt’s common law claim, but for
reasons different from those given by the district court.

LUTTIG, Circuit Judge, concurring in part and dissenting in part:

   I join Part II of the majority opinion, affirming the district court’s
dismissal of Gantt’s sexual harassment claim. I also concur in Part III,
insofar as it reverses the district court’s order of summary judgment
as to the emotional injuries suffered by Gantt as she waited outside
at Post 9.

   I dissent, however, from the majority’s affirmance of the district
court’s order dismissing Gantt’s claim against Security USA for the
emotional distress she suffered as a result of her abduction, torture
and rape, as barred by the Maryland worker’s compensation laws. In
my judgment, Gantt has presented sufficient evidence to support a
jury verdict that Security USA, acting through supervisor Claggett,
"deliberately intended" for Gantt to be abducted, tortured and raped
22                   GANTT v. SECURITY, USA, INC.
by Sheppard and to suffer the severe emotional injuries that resulted
therefrom. Therefore, I would hold that this portion of Gantt’s claim
for intentional infliction of emotional distress may be brought by
Gantt outside of the provisions of the Maryland workers’ compensa-
tion laws.

                                    I.

   The majority holds, and I agree, that Gantt presented sufficient evi-
dence to withstand summary judgment on each of the elements of her
tort claim for intentional infliction of emotional distress against
Security, USA for her injuries from the abduction, torture and rape.
See ante at 10-11. It nevertheless affirms the district court’s order dis-
missing Gantt’s claim as to these injuries because it holds that Gantt
did not present sufficient evidence to bring herself within the terms
of the exception to the Workers’ Compensation Act’s general prohibi-
tion on employee suits for workplace injuries outside the workers’
compensation scheme. See Md. Code Ann., Lab. & Empl. § 9-509(a),
(b). The exception, set forth in Md. Code § 9-509(d), provides that
Gantt "may bring an action for damages against her employer" if she
demonstrates that she was injured "as the result of the deliberate
intent of [her] employer to injure" her. See Md. Code Ann., Lab. &
Empl. § 9-509(d); Johnson v. Mountaire Farms of Delmarva, Inc.,
503 A.2d 708, 712 (Md. 1986).

   In holding that Gantt has not presented evidence from which a rea-
sonable jury could conclude that Security USA "deliberately
intended" to injure Gantt, I believe the majority has failed to draw
reasonable inferences from the evidence, taken in the light most
favorable to Gantt, and, in so doing, decided itself a factual question
that should have been left to a jury instead.

   Claggett, Gantt’s supervisor, and Sheppard, her former boyfriend
and attacker, were friends from work and they often discussed Shep-
pard’s relationship with Gantt. Claggett knew that Sheppard had pre-
viously abused and threatened to kill Gantt. She knew that Sheppard
was barred by court order from having any contact with Gantt. And
she knew that, by order of manager Earl Wood, Gantt was not to be
stationed at an outside post, in order that she be protected from Shep-
pard. Yet, on the very morning in question, Claggett ordered Gantt to
                     GANTT v. SECURITY, USA, INC.                     23
report to post 9, an outside post, ignoring both the instructions given
to her only a few minutes earlier by Willie Jones, the supervisor that
preceded her, and Gantt’s own pleas that she would not be safe if
located at post 9. Then, within fifteen minutes of Gantt assuming post
9, Claggett knowingly violated the protective order against Sheppard
and transferred a telephone call from him to Gantt. Alarmed by Shep-
pard’s call, Gantt again pleaded with Claggett that she be transferred
from post 9 to an inside post where she would not be vulnerable.
Claggett rebuffed Gantt, insisting that she remain at post 9. Less than
an hour later, Sheppard arrived at post 9 and kidnapped Gantt at gun-
point. When told that Gantt had been abducted at gunpoint and was
being driven away in a van, Claggett even still refused to intervene
to protect Gantt by calling the police, instructing other employees not
to be alarmed.

   A reasonable jury could take Claggett at her word, as both the
majority and Judge Niemeyer appear to do, and conclude from these
facts that she intended nothing more than for Sheppard to talk to
Gantt at her post on the morning in question, and, therefore, that her
obstinate disregard of both Sheppard’s threats and the repeated admo-
nitions of her immediate supervisor, the supervisor that she replaced,
and Gantt herself amounted only to "misguided judgment" or "reck-
lessness" in light of the danger Sheppard posed to Gantt.

   But a reasonable jury need not reach such an innocent conclusion
as to Claggett’s motivations. It could just as readily find that Claggett
acted intentionally and in concert with Sheppard on the morning in
question, not, as Judge Niemeyer contends, as a "counselor or peace-
maker" to Gantt and Sheppard. Ante at 21 (opinion of Niemeyer, J.).
Such a jury could draw the inference that it was not mere coincidence
that Sheppard arrived at post 9 at 7 a.m. on the same morning that,
just an hour earlier, Claggett had stationed Gantt at that same post,
but, instead, that Sheppard arrived there because Claggett had
arranged with Sheppard for him to have access to Gantt at that time
and place. It could also infer that Claggett refused Gantt’s pleas to be
moved to an inside post for the very reason that Claggett did intend
to facilitate Sheppard’s access to Gantt. Such a jury could further
determine that when Claggett, having just been told by frantic secur-
ity guards that Sheppard abducted Gantt at gunpoint, assured her fel-
low guards, "no, we don’t need to call the police because [Sheppard]
24                  GANTT v. SECURITY, USA, INC.
doesn’t want to hurt her, he just wants to talk to her," she spoke, not
because she actually believed that such was Sheppard’s purpose, but,
rather, to prevent those guards from interfering with Sheppard’s
abduction of Gantt. And that Claggett ultimately called the police her-
self five to ten minutes later, not because she suddenly became con-
vinced that Sheppard may have something else in mind, but rather
because she surmised (correctly) that, by this time, Sheppard would
have had the opportunity to leave the premises with Gantt.

  These inferences are not, of course, compelled, but each would be
well-supported by the evidence in this case. And, were a jury to so
conclude, it could determine that Claggett’s actions, taken as a whole,
demonstrated a deliberate intent "to bring about the consequences of
[her] act[s]," see Johnson, 503 A.2d at 712, Gantt’s abduction, torture
and rape, as well as the emotional injuries that attended each.

  On this basis, I would reverse the district court’s judgment outright
and remand for trial.

                                  II.

   Judge Niemeyer suggests an additional reason that Gantt may not
proceed with her claim outside of the provisions of the Workers’
Compensation Act, namely, that Claggett’s actions cannot be imputed
to Security, USA because "Claggett was the lowest level supervisor
of the New Carrolton building" and her actions were "not only unau-
thorized, but expressly disallowed" by a superior’s order. See ante at
20 (opinion of Niemeyer, J.). The majority opinion dismisses this sug-
gestion in a footnote for the entirely valid reason that Security USA
itself has not attempted, either before the district court or on appeal,
to disavow that Claggett was acting as its agent in stationing Gantt at
an outside post. See ante at 13 n.3. But in any event, in so contending,
Judge Niemeyer distorts the law of Maryland, as set forth by the
Maryland Court of Appeals in Federated Dep’t Stores Inc. v. Le, 595
A.2d 1067 (Md. 1991).

   The Maryland courts have not, contrary to Judge Niemeyer’s asser-
tion, "historically restricted liability to acts authorized by the
employer or performed by the employer’s alter ego." Ante at 29
(Opinion of Niemeyer, J.). In fact, when the Maryland Court of
                    GANTT v. SECURITY, USA, INC.                    25
Appeals considered the question over a decade ago, it did not merely
"cast doubt" on the alter ego approach. It expressly declined to read
the Maryland Workers’ Compensation Act to require a showing that
the employee was the "alter ego" of the employer, rejecting the
approach taken in Schatz v. York Steak House Sys., Inc., 444 A.2d
1045 (Md. App. 1982) and Cont’l Cas. Co. v. Mirabile, 449 A.2d
1176 (Md. App. 1982). See Le, 595 A.2d at 1074 (holding that the
‘intent to injure’ exception to the general exclusivity of the workers’
compensation act does not "embody[ ] the particular restriction
upheld . . . in Mirabile and Schatz"). Moreover, the Le court made
clear that the act in question need not be taken by an employee with
the "express authorizat[ion]" of the employer itself before it could be
imputed to that employer. Id.

   Finally, while Le did state that, "it may well be that the General
Assembly, by the language ‘deliberate intention of his employer to
produce such injury,’ intended something less than the full sweep of
common law respondeat superior liability," id., there is nothing in the
Maryland case law to suggest that the legislature intended to protect
an employer from suit where, as here, its supervisor acted, as a super-
visor, in the normal course of her employment, with the deliberate
intent to injure another employee — simply because that supervisor’s
action violated the order of an absent, higher-ranking company offi-
cial. Cf. Hastings v. Mechalske, 650 A.2d 274, 281 (Md. 1994) (hold-
ing that, "the employer remains liable with respect to the duty,
regardless of the acts or omissions of the person entrusted to perform
it"). Nor would such a rule be wise. Whether or not there were other
people above Claggett in the Security, USA hierarchy, there is no
question that, on the morning of Gantt’s abduction, Claggett was the
supervisor in charge of the New Carrolton building for Security,
USA. As an employee of Security, USA, Gantt had no choice but to
abide Claggett’s orders; there were, after all, no higher-ranking
authorities present to whom Gantt could appeal. That Claggett’s order
represented the order of her employer is the only reason that Gantt
remained outside at post 9, in fear for her life.

   Moreover, were we to hold that a supervisor’s actions could not be
imputed to an employer whenever the employer had a standing policy
against the action taken by a supervisor, it would render the ‘intent
to injure’ exception to exclusivity set forth in section 509(d) a near
26                  GANTT v. SECURITY, USA, INC.
nullity, relevant only to those rare occasions when an employer did
not have a policy of some sort forbidding actions taken with a "delib-
erate intent" to kill or injure another employee. Without any guidance
in the statutory text or the caselaw, I would never so restrictively
interpret this provision.
