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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1374 September Term 2006

SUSAN RUNNELS, ET AL.

V.

JONATHAN G. NEWELL, ET AL.

Salmon, Sharer, Wenner, William W. (Ret., Specially Assigned), JJ.

Opinion by Salmon, J.

Filed: March 28, 2008

In 2000 Robert Greenleaf was appointed State's Attorney for Caroline County, Maryland. He secured the Democratic nomination and ran for election for that job in November 2002. Of the ten employees of the Caroline County State's Attorney's office, three actively campaigned for Mr. Greenleaf, viz.: Susan Runnels, Marjorie Cooper, and Delores McBride, Esq., an Assistant State's Attorney. Mr. Greenleaf was defeated at the polls on November 5, 2002, by Jonathan G. Newell. About five weeks after his election victory, Mr. Newell had a meeting with Ms. Runnels, Ms. Cooper, and Ms. McBride. He told the trio that they would be terminated when he took office as State's Attorney for Caroline County on January 6, 2003. Except for the three employees of the State's Attorney's Office who had supported Mr. Greenleaf's candidacy, no one else was terminated by Mr. Newell prior to his taking office. Ms. Runnels and Ms. Cooper brought suit in the Circuit Court for Caroline County and requested a jury trial. The defendants were Mr. Newell, the County Commissioners for Caroline County, and the State of Maryland. The case was later removed to the Circuit Court for Worcester County. In their complaint, which contained seven counts, the plaintiffs made two major allegations in Counts I - III. First, it was alleged that Mr. Newell deprived the plaintiffs of their rights (guaranteed by the First Amendment to the Constitution of the United States and by Article 40 of the Maryland Declaration of Rights to participate freely in political activities and to express their political views) when they were fired in retaliation for the political support they gave to Mr. Greenleaf. Second, the County Commissioners for Caroline County

and the State of Maryland were alleged to be liable jointly for Mr. Newell's illegal action in firing them in retaliation for their political activities. The plaintiffs also alleged in their complaint that while they were employed at the State's Attorney's Office for Caroline County, they were required to work in excess of forty hours per week, but that, contrary to the Fair Labor Standards Act (FLSA) and certain Maryland wage and hour laws that correspond to the FLSA, they were not paid time and onehalf for the hours they worked in excess of forty hours per week; instead they were given compensation time, meaning that they were granted leave equal to the amount of time they worked in excess of forty hours per week. According to plaintiffs, the County was liable for these statutory violations. In response to the overtime issue, the County took the position that, even if the plaintiffs could show that they were unlawfully required to accept compensation time in lieu of time and one-half pay, it was not liable because it was not plaintiffs' employer within the meaning of the controlling statutes. The motions judge granted the County's motion to dismiss portions of Counts I, II, and III. Subsequently, after extensive discovery, the motions judge granted summary judgment in favor of all defendants as to all counts. In this appeal, Ms. Runnels and Ms. Cooper argued that the trial judge erred in granting summary judgment against them.

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I. A. Facts Relevant to the Issue of Liability for the Termination of the Appellants1 1. Marjorie Cooper Christian J. Jenson commenced his term as State's Attorney for Caroline County in January of 1987. He served as State's Attorney until June of 2000, when he resigned. During Mr. Jenson's first year in office, he hired, as his first victim's witness coordinator ("VWC"), Marjorie Cooper. While performing that job, Ms. Cooper met expectations in each of her annual evaluations. She was selected as the VWC of the year for the State of Maryland near the end of Mr. Jenson's tenure as State's Attorney. In October 2001, Ms. Cooper became the senior District Court coordinator for the Caroline County State's Attorney's Office. Ms. Cooper earned $14.58 per hour when she was fired. As the senior District Court coordinator, she did not report directly to the Caroline County State's Attorney; instead, she reported to the administrative coordinator, who, in turn, reported to the Deputy State's Attorney. The Deputy State's Attorney reported to the State's Attorney.

In deciding whether a motion for summary judgment was properly granted, an appellate court analyzes the facts, including all inferences that legitimately may be drawn from those facts, in the light most favorable to the party against whom summary judgment was granted. Dobbins v. Washington Suburban Sanitary Comm'n, 338 Md. 341 (1995). Accordingly, in Part A-1 of this opinion, the facts are set forth in the light most favorable to Ms. Runnels and Ms. Cooper. It should be stressed, however, that many of those facts are disputed by the appellees in this case, who are: Jonathan G. Newell, the State of Maryland, and the County Commissioners for Caroline County, Maryland. The defendants presented evidence to the motions court that, if credited by a jury, justified disposition in favor of appelees. 3

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As senior District Court coordinator, Ms. Cooper's duties included reviewing dockets, pulling case files, subpoenaing witnesses, ordering documents, filing, and performing other tasks as directed by the attorney assigned to her cases. She also provided clerical support for prosecuting attorneys. In addition, Ms. Cooper served as the VWC for juvenile cases and occasionally filled in for other victim witness coordinators when they were absent. 2. Susan Runnels In 2000, Mr. Greenleaf hired Ms. Runnels to be a District Court (assistant) VWC. Ms. Runnels performed her job well, as evidenced by the fact that she received a performance bonus from Caroline County in 2001. She was selected as the outstanding employee of the year for the Caroline County State's Attorney's office in 2002, the year in which she was fired. Ms. Runnels enjoyed a good relationship with Mr. Newell until July 2002 when she agreed to work for Mr. Greenleaf's election. After Ms. Runnels commenced her campaign activities, Mr. Newell voiced a complaint to Donald Nagel, who was the chief of police for the Town of Federalsburg, Maryland, and is also the son-in-law of Ms. Runnels. According to an affidavit later filed by Mr. Nagel, on several occasions during the 2002 election campaign, Mr. Newell complained to him about Ms. Runnels' "open support for Mr. Greenleaf." "[Mr. Newell] told [Chief Nagel] on one or more occasions that Ms. Runnels `must not like her job very much' to the extent that she was openly supporting Greenleaf." During the campaign, Mr. Newell also wondered aloud to Chief Nagel "why Ms. Runnels would put herself in [such a] position because it could be bad if Greenleaf lost."

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The job description for a VWC states that it involves "clerical work" that is to be performed "as directed" and that is to be spot checked by his/her superior. No college or prior criminal justice experience is required. The primary responsibilities of a VWC are two-fold: (1) to provide clerical support to prosecuting attorneys in connection with the criminal cases to which they are assigned and (2) to act as a liaison between the State's Attorney's office and crime victims. The trialrelated responsibilities of the VWC include assisting the attorneys in the preparation of criminal informations, preparing subpoenas, scheduling meetings between witnesses and the prosecutor, advising witnesses and victims of changes in court dates, and confirming their attendance in court, calling witnesses to the courtroom during trial, and performing such other tasks as directed by the prosecutor assigned to the case. In the event that a VWC could not answer a victim's question, Ms. Runnels would schedule a meeting between the victim and the prosecuting attorney. A VWC is not permitted to give legal advice to victims, nor provide substantive input regarding a victim's testimony or the preparation of victim impact statements. The VWC sits three rungs below the State's Attorney in the Caroline County State's Attorney's Office organizational chart, reporting to the administrative coordinator as opposed to the State's Attorney. A VWC, such as Ms. Runnels, is supervised by the Deputy State's Attorney or the Assistant State's Attorney prosecuting the case to which the VWC is assigned. When she was absent, the office receptionist frequently assumed her duties. Ms. Runnels earned $11.30 per hour at the time of her dismissal.

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During her tenure as a VWC, Ms. Runnels served on a "Hot Spots" committee made up of persons interested in community crime prevention. The committee was comprised of representatives of law enforcement and social service agencies, including the mayor of Federalsburg and the Deputy State's Attorney. According to Ms. Runnels' affidavit, her committee work, for the most part, consisted of listening to the views of other committee members and taking notes. Ms. Runnels volunteered to participate in the crime- prevention program because she lived in the community that it served, not because it fell within her responsibilities as an employee of the Caroline County State's Attorney's Office. 3. Campaign Activities of the Appellants Ms. Cooper had no official role in Mr. Greenleaf's 2002 campaign for election. She did, however, overtly support Mr. Greenleaf's candidacy. She posted a Greenleaf sign in her yard and wrote a letter, favorable to him, that was published during the campaign in a local newspaper. Prior to the election, she handed out Greenleaf pins and brochures and, on occasion, wore a Greenleaf campaign shirt and button. Additionally, on election day, November 5, 2002, Ms. Cooper distributed literature for Mr. Greenleaf at a polling place. During her spare time, Ms. Runnels served as Greenleaf's campaign manager and treasurer for the 2002 election campaign. In this capacity, she helped Mr. Greenleaf develop and distribute campaign materials, wrote a letter to the editor of a local newspaper in which she espoused Mr. Greenleaf's candidacy, placed a Greenleaf campaign sign in her yard, and placed a Greenleaf bumper sticker on her car. Like Ms. Cooper, she also passed out Greenleaf campaign literature at a polling place on election day. 4. Post Election Activities 6

In early December 2002, Mr. Newell met with Charles Cawley ("Cawley"), the Caroline County Administrator. Mr. Newell told Cawley that he intended to fire Runnels, Cooper, and McBride. During the conversation, he did not criticize their job performance, nor did he ask to review their personnel files. Cawley suggested to Mr. Newell that he "give it some time before he [made] this decision, and [advised that] he [Newell] should probably evaluate their work performance before" he fired them. On November 19, 2002, Ms. Runnels telephoned Mr. Newell to congratulate him on his electoral victory. She told Mr. Newell that she hoped he would retain her as a VWC when he assumed his new duties. Ms. Runnels also said that she had supported Mr. Greenleaf during the campaign out of loyalty to the State's Attorney's office but assured Mr. Newell that she would be just as loyal to him once he took office. Mr. Newell told her that he appreciated the call but gave her no assurances that she would keep her job. At the meeting on December 13, 2002, during which they were fired, Mr. Newell told Ms. Cooper and Ms. Runnels that their termination had nothing to do with their job performance, nor was it due to any fault on their part. In fact, Mr. Newell told Ms. Runnels that she had been a good employee. When Ms. Runnels asked Mr. Newell why he fired her, he replied that he was keeping people he could "trust." This remark caused Ms. Runnels to accuse Mr. Newell of terminating her and her cohorts because of their support for Mr. Greenleaf. To this charge, Mr. Newell responded by smiling and stating "absolutely not." In Ms. Runnels' view, the last-mentioned answer was delivered in a "sarcastic" tone of voice that she understood to mean the opposite of the words Newell spoke. When Ms. Runnels complained that Mr. Newell had not given her more notice of his intention to terminate her, 7

Mr. Newell replied that she should have known the day after the election that she would not be keeping her job. 5. Post December 13, 2002, Events After announcing that he was terminating Ms. Cooper and Ms. Runnels, Mr. Newell contacted the remaining non-lawyer employees of the Caroline County State's Attorney's office who had either supported him in the election or remained neutral and advised them that when he took over he intended to retain them as employees but intended to terminate the employment of Ms. Runnels, Ms. Cooper, and Ms. McBride. summarized by the motions judge as follows: Following Newell's announcement, . . . the other employees within the SAO (State's Attorney's office) began treating Runnels and Cooper disrespectfully and rudely. Gradually, [p]laintiffs' regular work was taken away from them and assigned to other employees. Moreover, [p]laintiffs were told that they must use all of their accumulated compensatory leave prior to their termination, or it would be lost, and they were specifically told by County personnel and payroll officials that they would not be compensated monetarily for compensatory leave time. Accordingly, Runnels scheduled compensatory leave for the full day on December 16th as well as half days on December 17th and 18th. The SAO office administrator, Betsy LeCompte, approved Runnels' leave request, so she stayed off of work on December 16th. When Runnels returned to work on the morning of December 17th, her computer had been removed from her desk, and her phone had been re-routed so that it rang only at the desk of Rose Rice, the SAO District Court Victim Witness Coordinator. . . . Runnels . . . went to County Administrator[] Charles Cawley's[] office to inquire about her computer and telephone. Cawley said that he had directed Runnels' telephone line to be re-routed to Rice's desk because he did not like the message she had placed on her voice mail. The message left on her answering machine noted that she had 8 What happened next was well

been terminated and thereafter thanked and said goodbye to those she had worked with during her tenure at the SAO. Cawley further informed Runnels that her computer had been removed because he had been informed by someone at the SAO that Runnels had quit her employment and that she had erased all of the files from her computer. Runnels protested that she had done no such thing[] and informed Cawley that she had been on compensatory leave the previous day with the approval of the SAO office administrator. She assured Cawley that no files had been removed from her computer, and complained that no one had confronted her about this issue before confiscating her computer. Cawley responded that County employee Jim McCormick had checked Runnels' computer and confirmed that it held no files in the Word Perfect program. That was true, Runnels said, because all of her files were in Microsoft Word, which she alleges she could have told him. Mr. McCormick eventually verified that all of Runnels' files were indeed intact on her computer and were in fact saved in Microsoft Word. Accordingly, Cawley directed that Runnels' computer be returned to her office and told Runnels[] it was a good thing she had come to this office, because otherwise he would have terminated her from County employment and deemed her not eligible for future County employment. Upon Runnels['] return to her desk, however, her telephone remained so that it routed all calls to Ms. Rice. Moreover, from that day until the conclusion of her employment with the SAO on January 6, significant portions of her regular work were assigned to others in the office so that she was sometimes forced to sit idly at her desk. Other workers and officials at the courthouse told Runnels that they had heard through the grapevine that she had quit her job and erased all of her files from her computer.

B. Mr. Newell's Version of Events Mr. Newell testified at deposition that many months before the election he decided that he would not retain appellants

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