               REPORTED

  IN THE COURT OF SPECIAL APPEALS

            OF MARYLAND

                 No. 2427

          September Term, 2015

______________________________________


           MATTHEW PETTY

                     v.

    MAYOR AND CITY COUNCIL OF
       BALTIMORE CITY, et al.

______________________________________

     Arthur,
     Shaw Geter,
     Thieme, Raymond G., Jr.
        (Senior Judge, Specially Assigned),

                  JJ.
______________________________________

          Opinion by Thieme, J.
______________________________________

     Filed: March 28, 2017
       Matthew Petty, appellant, appeals from an order issued by the Circuit Court for

Baltimore City granting summary judgment in favor of appellees, the Mayor and City

Council of Baltimore, several employees of the Baltimore City Fire Department, and the

Baltimore City Professional Fire Fighters, IAFF Local 734. Appellant presents one

argument on appeal: Did the circuit court err in entering summary judgment against him?

For the reasons that follow, we shall affirm.

                                          FACTS

       On August 13, 2015, appellant filed a four-count complaint in the Circuit Court for

Baltimore City against the Mayor and City Council of Baltimore (the “City”); four

employees of the Baltimore City Fire Department (“BCFD”), specifically, Jeffrey Segal,

Mark Wagner, James Wallace, and Charles Dwyer; and the Baltimore City Professional

Fire Fighters, IAFF Local 734 (the “Union”). Appellant had been an employee with the

BCFD from September 18, 1995, until April 15, 2015, when he was discharged. During

his employment, appellant had risen through the ranks, and at the time of his discharge he

was an emergency vehicle driver assigned to a HAZMAT unit. It is not disputed that

appellant was a dues paying member of the Union at all relevant times.

       The first count of appellant’s complaint was an action for intentional infliction of

emotional distress against each of the defendants. He alleged that during his employment

he was subject to “unjustified, illegal and malicious harassment” by Wagner, Wallace, and

Dwyer, that caused, without elaboration, “certain disciplinary actions” and “disparate

adverse treatment” to be made against him; “cast [asper]sions” on his character; and
violated his rights to seek assistance from his Union. He alleged that the City, the BCFD,

and Segal, Assistant Chief of the BCFD, acquiesced in those actions.

       The second count alleged tortious interference with contract and was against

Wagner, Wallace, and Dwyer, who allegedly induced the BCFD to “breach its contractual

obligations” regarding employment opportunities and promotions for appellant. Appellant

alleged, again without elaboration, that as a result of those employees’ actions he was

removed from his position and forced to resign.

       The third count alleged negligence by: 1) the City, the BFCD, and Segal for

allowing the three named employees to harass appellant; and 2) the City and the BFCD for

failing to provide appropriate medical care to appellant for the work-related injury to his

right hand and thumb, which caused “serious permanent disability,” and in failing to

properly process appellant’s retirement claim.

       The fourth count alleged breach of contract and alleged that the Union failed to

represent him in his employment claims.

       Appellees responded by moving for summary judgment. In support of their motion

appellees argued, among other things, that appellant had failed to exhaust administrative

remedies before filing the action in circuit court; appellant’s tort claim was barred by the

Maryland Workers’ Compensation Act (“MWCA”), see Md. Code Ann., Lab. & Empl. §§

9-101, et. seq.; and appellant’s tortious interference with contract claim against the three

named employees was not actionable because the employees were parties to the contract

with the City. Appellees clarified that appellant was removed by administrative action for

two reasons. First, he was deemed no longer fit for duty by the opinion of the Medical

                                             2
Director of the Mercy Medical Center Public Safety Infirmary due to the injury to his hand.

Second, appellant had exhausted his paid leave (from January 8, 2014 to April 15, 2015)

for a line of duty injury and had to either return to work, be separated from City

employment, or challenge his status by means of an internal appeal or grievance, which he

has not done.

       The Circuit Court for Baltimore City agreed with appellees and entered summary

judgment against appellant on grounds that he did not exhaust his administrative and

contractual remedies.

                                      DISCUSSION

       Appellant argues on appeal that the circuit court’s ruling was in error, because the

ruling was “erroneously predicated on the assumption” that his claims were “within the

scope of available administrative and contractual remedies.” Appellees preliminarily

respond that appellant has waived his appeal because he has cited no case law to support

his argument. Even if appellant’s argument is preserved, appellees argue that the circuit

court’s ruling was correct – appellant was required and failed to exhaust available remedies

under the Baltimore City Charter, Art. VII, § 100, and Arts. 6 and 12 of the Memorandum

of Understanding (MOU) between the City and the Union and the MWCA.

       We will quickly dismiss appellees’ waiver argument. Md. Rule 8-504, governing

the content of appellate briefs, contains no requirement that an appellant must cite case law

in support of his arguments. Anderson v. Litzenberg, 115 Md. App. 549, 577-78 (1997),

the main case cited by appellees for its waiver argument, stands for the proposition that

where a brief only recites facts and does not relate those facts to a legal theory, we shall

                                             3
not address the potential merits of the argument presented. Here, appellant contests the

lower court’s grant of summary judgment. Appellant cites several cases regarding the

standard of review for summary judgment and several legal theories on which his claims

are based. Although his arguments are not the pinnacle of clarity, they are sufficiently

presented, factually and legally, for our review.

       Md. Rule 2-501(f) provides, in relevant part, that “[t]he court shall enter judgment

in favor of or against the moving party if the motion and response show that there is no

genuine dispute as to any material fact and that the party in whose favor judgment is entered

is entitled to judgment as a matter of law.” We review an order granting summary

judgment de novo. See Todd v. Mass Transit Admin., 373 Md. 149, 154 (2003)(citations

omitted). Accordingly, we first determine whether a dispute of material fact exists, and if

not, only then will we proceed to determine whether the movant is entitled to judgment as

a matter of law. O’Connor v. Baltimore County, 382 Md. 102, 110 (2004). Because there

are no disputed material facts, the standard of review is whether the trial court was legally

correct.

       The MOU for fiscal years 2014-2016 memorializes the understanding between the

City and members of the Union on a range of issues, including wages, hours, discipline

and discharge, health, and other terms and conditions of employment. MOU Art 6:A

defines “grievance” as “a dispute concerning the application or interpretation of the terms

of [the MOU]” or “a claimed violation, misinterpretation, or misapplication of the rules or

regulations of the [e]mployer affecting the terms and conditions of employment[.]” Article

6:A sets forth the grievance procedure in detail. See MOU Art. 6:A. Additionally, MOU

                                             4
Article 12:A provides that “[a]ny employee who is discharged, reduced in pay or position,

or suspended for more than thirty (30) days may contest the action either (i) by lodging an

appeal with the Civil Service Commission . . . or (ii) by filing a grievance on the form that

is referred to in Article 6[.]” None of the complained actions occurred outside the scope

of appellant’s employment. Therefore, appellant’s termination and the conduct that

negatively affected the terms and conditions of his employment were subject to the

mandatory grievance procedure of the MOU.

       Appellant attempts to avoid this result with several arguments. First, he argues that

the word “may” in Article 12:A, setting forth the two avenues for grievance, is permissive

rather than mandatory, which appellant suggests permits an employee to take other avenues

for a grievance. We reject this interpretation. We are persuaded that the use of the word

“may” in Article 12:A clearly means that an employee who is discharged, or whose pay or

position is reduced may either choose between the two exclusive actions offered –

appealing to the Civil Service Commission or filing a grievance – or an employee may do

nothing at all. Cf. Gazunis v. Foster, 400 Md. 541, 565 (2007)(reaching the same

interpretation of the word “may” in a collective bargaining agreement).

       Second, appellant argues that the MOU applies only to the limited actions stated in

Article 12:A, an employee who is discharged, reduced in pay or position, or suspended for

more than 30 days. Appellant argues that Count 1 and 4 of his complaint do not allege

wrongs based on discharge, reduction of pay, or suspension. Appellant also argued, during

oral arguments, that his use of the adverbs “unjustified”, “illegal”, and “malicious” to



                                             5
describe the actions complained of, took his claims outside the employment context. We

disagree.

       Appellant’s claims for intentional infliction of emotional distress (Count I), tortious

interference with contract (Count II), and negligence (Count III) are all clearly based on

employment actions and duties and are covered by MOU 6:A. Because all of appellant’s

claims arise out of his employment and are based on duties established and defined in the

MOU, he is bound by the administrative procedures set forth in the MOU. 1 Cf. Fleming v.

United Parcel Serv., 604 A.2d 657, 671 (N.J. Super. Ct. Law. Div. 1992)(holding that an

employee’s tort claim is so inextricably intertwined with the terms of the labor contract

that the employees tortious interference claim is preempted and cannot be adjudicated

without consideration of the labor contract). Moreover, the use of adverbs to describe a

claim regarding one’s employment does not elevate the claim outside the employment

context. Cf. Nash v. AT&T Nassau Metals, 381 S.E.2d 206, 209-10 (S.C. 1989)(employee

Nash’s claim that Nassau deliberately and willfully deprived him of his benefits and

terminated his employment was preempted because whether the actions were “illegal”

involved a determination as to whether the parties complied with the employment contract).

       Additionally, that part of Count III which relates to appellant’s claim involving his

work-related injury is actionable solely under the MWCA.                 The MWCA is a



       1
         Appellees are also correct that appellant’s tortious interference with contract claim
cannot lie against the other City employees because they are party to the contract to which
they allegedly interfered, and agents of the employer. See Kaser v. Fin. Protection Mktg.,
Inc., 376 Md. 621, 630 (2003) and Pope v. Board of School Comm’rs of Baltimore City,
106 Md. App. 578, 592 (1995), cert. denied, 342 Md. 116 (1996).
                                              6
“comprehensive scheme to . . . provide sure and certain relief for injured workmen, their

families and dependents regardless of questions of fault.” Hastings v. Mechalske, 336 Md.

663, 672 (1994)(quotation marks and citations omitted). The MWCA entitles covered

employees to compensation for accidental injuries that arise out of the course of

employment and is the “exclusive remedy” for an injured employee against his employer.

Rodrigues-Novo v. Recchi America, Inc., 381 Md. 49, 57 (2004); Hastings, 336 Md. at 672;

and Lab. & Empl. §§ 9-101(b), 9-501, 9-509(a).

       Lastly, we also note that appellant’s breach of contract claim against the Union

(Count IV), and to the extent he alleges a cause of action against the Union in tort and

contract, is not actionable. As the appellees correctly point out, appellant’s cause of action

against the Union is based on the theory of breach of the duty of fair representation. This

theory is “based on the member’s claim that the union had, without good cause or reason,

refused to take to arbitration the member’s grievance against his employer.” Byrne v. Mass

Transit Admin., 58 Md. App. 501, 508 (citation omitted), cert. denied, 300 Md. 794 (1984),

cert. denied, 471 U.S. 1016 (1985). This is because the Union is required to: 1) serve all

of its members without hostility or discrimination; 2) exercise its discretion with good faith

and honesty; and 3) avoid arbitrary conduct.          Vaca v. Sipes, 386 U.S. 171, 177

(1967)(citation omitted). Before the Union has any duty to represent, however, the member

must file a grievance. See MOU Art. 6:C. Because appellant never grieved and did not

pursue his contractual remedy, he has no cause of action against the Union.




                                              7
      In sum, because appellant failed to exhaust the administrative and statutory

remedies available, the lower court properly granted summary judgment.



                                                     JUDGMENT AFFIRMED.

                                                     COSTS TO BE         PAID BY
                                                     APPELLANT.




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