McGuire v. Palmerton Hospital et al

Filing 19

MEMORANDUM For the reasons discussed above, Defendants Palmerton Hospital and Lois Richards Motion to Dismiss (Doc. 9) is granted in part. It is denied to the extent that certain claims are dismissed without prejudice. Count I for breach of contrac t is dismissed with prejudice as to Defendant Richards and dismissed without prejudice as to Defendant Palmerton. Count II for wrongful termination is dismissed with prejudice as to Defendant Richards and dismissed without prejudice as to Defendant Palmerton. Count III for age discrimination under the ADEA is dismissed with prejudice as to Defendant Richards and dismissed without prejudice as to Defendant Palmerton. Counts IV and V for violations of the PHRA are dismissed with prejudice. An appropriate Order is filed simultaneously with this action. Should Plaintiff choose to do so, an amended complaint is to be filed within fourteen (14) days of the date of this Memorandum and simultaneously filed Order. (See Memorandum) re 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Lois Richards, Palmerton Hospital Signed by Honorable Richard P. Conaboy on 11/13/12. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EILEEN McGUIRE,

:
:CIVIL ACTION NO. 3:12-CV-1762
Plaintiff,
:
:(JUDGE RICHARD P. CONABOY)
v.
:
:
PALMERTON HOSPITAL and
:
LOIS RICHARDS (in her individual
:
and professional capacity),
:
:
Defendants.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider Defendants Palmerton Hospital and Lois
Richards’ Motion to Dismiss (Doc. 9) filed on October 1, 2012.
With this motion, Defendants seek dismissal with prejudice of all
claims in Plaintiff’s Second Amended Complaint (Doc. 7) which
Plaintiff filed on September 19, 2012.

Defendants filed a

supporting brief (Doc. 10) with the motion.

Plaintiff filed

Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion
to Dismiss Plaintiff’s Second Amended Complaint (Doc. 11) on
October 17, 2012.

With the filing of Defendant’s reply brief (Doc.

13) on October 31, 2012, this motion became ripe for disposition.
For the reasons discussed below, Defendants’ Motion is granted in
part and denied in part.
I. Background1
Palmerton and Plaintiff discussed hiring Plaintiff as a CT
1

In her opposition brief (Doc. 11) Plaintiff summarizes
facts contained in her Second Amended Complaint (Doc. 7) which we
take as true for purposes of Defendants’ motion filed pursuant to
Federal Rule of Civil Procedure 12(b)(6). See, e.g., Phillips v.
County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). Therefore,
the facts in the Background section of this Memorandum are derived
mainly from Plaintiff’s opposition brief. (Doc. 11 at 1-3.)

Technologist in 2008.

(Doc. 11 at 1.)

Plaintiff, Defendant

Richards, and other employees of Palmerton negotiated the terms of
Plaintiff’s employment.

(Id.)

Ordinarily, CT Technologists work

pre-assigned shifts, work additional shifts periodically as needed,
and perform “on-call” services.

(Id. at 2.)

For “on-call”

services, the employee must report to Palmerton within thirty (30)
minutes of the call.

(Id.)

minutes from Palmerton.

Plaintiff lived more than thirty (30)

(Id.)

Plaintiff expressly conditioned her

acceptance of employment at Palmerton on having no “on-call”
assignments.
needed.

(Id.)

(Id.)

Otherwise, she agreed to work any shifts

Defendants agreed to this arrangement and hired

Plaintiff on October 13, 2008, as a “No-Call” CT Technologist, with
Defendant Richards negotiating terms of the hire.

(Id.)

On numerous occasions through 2010 and 2011, Defendant
Richards (Plaintiff’s supervisor (Doc. 7 ¶ 5)) and Sylvia Goral,
Director of Human Resources at Palmerton, ordered Plaintiff to work
on the “on-call” schedule.

(Id.)

They told Plaintiff that if she

did not report for the on-call assignments, she would be terminated
for “job abandonment.”
call shifts.

(Id.)

Plaintiff protested but took the on-

(Id.)

Plaintiff and Defendant Richards had a disagreement on June
30, 2011, regarding an order for a CT scan on a patient whose
weight exceeded the limit permitted for the CT table at Palmerton.
(Doc. 7 ¶ 29.)

Plaintiff recommended the scan be performed at
2

another hospital where the CT table had a higher weight threshold
which could accommodate the patient.

(Id.)

Defendant Richards

eventually ordered the scan for the other hospital.

(Id.)

On July 19, 2011, Defendant Richards and another Palmerton
management employee brought Plaintiff into a meeting.
44.)

(Doc. 7 ¶

In the meeting, Defendant Richards “accused Plaintiff of

‘refusing to perform a scan,’ of ‘canceling a CT order,’ and
‘sending a patient to another facility,’” accusations which
Plaintiff states Defendant Richards knew were false.
46.)

(Id. ¶¶ 45-

Plaintiff also avers that Defendant Richards accused her of

using profanity, an accusation Plaintiff denies.
Defendants terminated Plaintiff on July 20, 2011.

(Id. ¶ 47.)
(Id. ¶ 48.)

Plaintiff’s Second Amended Complaint also contains numerous
assertions regarding Defendants ordering Plaintiff to engage in
“illegal and unethical healthcare practices.”

(Doc. 7 ¶¶ 19-29.)

Plaintiff avers that these include violations of the following:
Occupational Health and Safety Act (“OSHA”), Nuclear Regulatory
Commission Regulations; Pennsylvania Department of Environmental
Protection regulations; American Registry of Radiologic Technology
(“ARRT”) statutory provisions and Code of Ethics; Pennsylvania
Professional Nursing Law; and Pennsylvania Health and Safety Code.
(Id.)
Defendants removed this case from the Court of Common Pleas of
Monroe County, Pennsylvania, on September 5, 2012.
3

(Doc. 1.)

Plaintiff had filed a complaint in that court on March 7, 2012.
(Doc. 1 ¶ 1.)

On April 5, 2012, Defendants filed a Notice of

Removal in the United States District Court for the Eastern
District of Pennsylvania, docketed as Case Number 2:12-CV-01718.
(Id. ¶ 2.)

Plaintiff then filed a motion to remand, which the

Eastern District Court granted, remanding the case to the Court of
Common Pleas of Monroe County.

(Id. ¶ 3.)

Plaintiff filed an Amended Complaint on August 17, 2012,
adding a claim for age discrimination under the Age Discrimination
in Employment Act of 1967, 29 U.S.C. § 621, et seq. (“ADEA”).
(Doc. 1 ¶ 4.)

Defendants then filed the Notice of Removal

removing the case to this Court on September 5, 2012, asserting
original jurisdiction over Plaintiff’s ADEA claim and supplemental
jurisdiction over Plaintiff’s remaining claims.

(Doc. 1 ¶ 13.)

As noted above, Plaintiff filed her Second Amended Complaint
(Doc. 7), which is the subject of the pending motion to dismiss, on
September 19, 2012.

The Second Amended Complaint contains five

counts: Count I - Breach of Contract against both Defendants; Count
II - Wrongful Termination against both Defendants; Count III Violation of the Age Discrimination in Employment Act of 1967, 29
U.S.C. § 621, et seq. - Disparate Treatment against both
Defendants; Count IV - Violation of the Pennsylvania Human
Relations Act, 43 Pa. C.S. § 951 et seq. against both Defendants;
and Count V - Aiding and Abetting Acts of Discrimination Pursuant

4

to 43 Pa. C.S. § 955(e) against both Defendants.

(Doc. 7 at 14-

22.)
II. Discussion
A. Motion to Dismiss Standard
In a motion to dismiss for failure to state a claim, the
defendant bears the burden of showing that no claim has been
presented.

Hedges v. United States, 404 F.3d 744, 750 (3d Cir.

2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406,
1409 (3d Cir. 1991)).
When reviewing a complaint pursuant to a defendant’s motion to
dismiss for failure to state a claim filed under Federal Rule of
Civil Procedure 12(b)(6), the court does so in the context of the
requirement of Federal Rule of Civil Procedure 8(a)(2) which
requires only “a short and plain statement of the claims showing
that the pleader is entitled to relief.”

The “short and plain

statement” must be sufficient to “give the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.”
Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated on other
grounds by Bell Atlantic Corp. v. Twombly, 550 U.S. 433 (2007).
Twombly confirmed that more is required than “labels and
conclusion, and a formulaic recitation of the elements of a cause
of action will not do.”

550 U.S. at 555 (citing Papasan v. Allain,

478 U.S. 265, 286 (1986) (on a motion to dismiss, courts “are not
bound to accept as true a legal conclusion couched as a factual
5

allegation”)).

“Factual allegations must be enough to raise a

right to relief above the speculative level on the assumption that
all allegations in the complaint are true (even if doubtful in
fact).”

550 U.S. at 555 (citations omitted).

In McTernan v. City of York, 577 F.3d 521, 530 (3d Cir. 2009),
the Third Circuit Court of Appeals set out the standard applicable
to a motion to dismiss in light of the United States Supreme
Court’s decisions in Twombly, 550 U.S. 433 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009).
“[T]o survive a motion to dismiss, a
complaint must contain sufficient factual
matter, accepted as true to ‘state a claim
that relief is plausible on its face.’”
Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550
U.S. at 570). The Court emphasized that
“only a complaint that states a plausible
claim for relief survives a motion to
dismiss.” Id. at 1950. Moreover, it
continued, “[d]etermining whether a complaint
states a plausible claim for relief will . .
. be a context-specific task that requires
the reviewing court to draw on its judicial
experience and common sense.” Id. (citation
omitted).
McTernan, 577 F.3d at 530.

The Circuit Court discussed the effects

of Twombly and Iqbal in detail and provided a road map for district
courts presented with a motion to dismiss for failure to state a
claim in a case filed just a week before McTernan, Fowler v. UPMC
Shadyside, 578 F.3d 203 (3d Cir. 2009).
[D]istrict courts should conduct a two-part
analysis. First, the factual and legal
elements of a claim should be separated. The
District Court must accept all of the
6

complaint’s well-pleaded facts as true, but
may disregard any legal conclusions. [Iqbal,
129 S. Ct. at 1949.] Second, a District
Court must then determine whether the facts
alleged in the complaint are sufficient to
show that the plaintiff has a “plausible
claim for relief.” Id. at 1950. In other
words, a complaint must do more than allege a
plaintiff’s entitlement to relief. A
complaint has to “show” such an entitlement
with its facts. See Philips [v. Co. of
Alleghany], 515 F.3d [224,] 234-35 [(3d
Cir.2008 )]. As the Supreme Court instructed
in Iqbal, “[w]here the well-pleaded facts do
not permit the court to infer more than the
mere possibility of misconduct, the complaint
has alleged--but it has not ‘show[n]’--‘that
the pleader is entitled to relief.’” Iqbal,
129 S. Ct. at 1949. This “plausibility”
determination will be “a context-specific
task that requires the reviewing court to
draw on its judicial experience and common
sense.” Id.
Fowler, 578 F.3d at 210-11.
The Circuit Court’s guidance makes clear that legal
conclusions are not entitled to the same deference as well-pled
facts.

As noted above, “the court is ‘not bound to accept as true

a legal conclusion couched as a factual allegation.’” Guirguis v.
Movers Specialty Services, Inc., No. 09-1104, 2009 WL 3041992, at
*2 (3d Cir. Sept. 24, 2009) (quoting Twombly, 550 U.S. at 555) (not
precedential).
Finally, the district court must extend the plaintiff an
opportunity to amend before dismissing a complaint unless amendment
would be inequitable or futile.

See Grayson v. Mayview State

Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
7

B.

Defendants’ Motion
As noted above, Defendants seek dismissal of all counts

contained in Plaintiff’s Complain with prejudice.

We will discuss

each in turn.
1.

Breach of Contract
Defendants first argue that Plaintiff’s breach of contract

claim (Count I) of Plaintiff’s Second Amended Complaint must be
dismissed against Defendant Richards because Plaintiff did not
allege a contract between herself and Richards.

(Doc. 10 at 12.)

Plaintiff concedes that this claim must be dismissed.
7.)

(Doc. 11 at

Therefore, Count I for Breach of Contract against Defendant

Richards is dismissed with prejudice.
Defendants also maintain that Plaintiff’s breach of contract
claim against Defendant Palmerton Hospital must be dismissed
because Plaintiff’s allegation that she and Defendant “‘negotiated
and reached a binding oral employment agreement that explicitly
excluded on-call services’” is insufficient in that Pennsylvania is
an at-will employment state and no recognized exceptions to the
doctrine exist here.

(Doc. 10 at 13-21.)

Defendant explains the

doctrine as follows: “‘[A]bsent a statutory or contractual
provision to the contrary, it is presumed that either party may end
an employment relationship at any time, for any or no cause.’”
(Doc. 10 at 13 (quoting Murray v. Commercial Union Ins. Co., 782
F.2d 432, 435 (3d Cir. 1986)).)

Noting that Plaintiff does not

8

allege that Defendants modified her status as an at-will employee
when it allegedly promised not to require her to work on-call
shifts, Defendants conclude Defendant Palmerton had the right to
require Plaintiff to work on-call shifts or terminate her
employment.

(Doc. 10 at 13.)

Defendants also argue that, even if

there was an initial oral agreement not to require Plaintiff to
work on-call shifts, because Plaintiff worked those shifts and was
paid to do so, the oral contract was modified “by her acceptance of
valuable consideration paid.”

(Doc. 10 at 14-15.)

Plaintiff does not refute Defendants’ explanation of
Pennsylvania’s at-will employment doctrine but asserts that she has
successfully pled a breach of contract claim.

(Doc. 11 at 3.)

Plaintiff relies on the principle that
Pennsylvania’s presumption of at-will
employment may only be overcome when the
parties form an “express contract, [an]
implied in-fact contract (the parties did not
intend it to be at-will), and [when]
additional consideration [passes] from the
employee to the employer (that is, if the
employee bestows a legally sufficient
detriment for the benefit of the employer
beyond the services for which he was hired, a
court may infer that the parties intend to
overcome the at-will presumption).” Ruzicki
v. Catholic Cemeteries Ass’n of the Diocese
of Pittsburgh, 416 Pa. Super. 37, 41-42[,]
610 A.2d 495 (1992); see also Robertson v.
Atlantic Richfield Petroleum Co., a Div. of
Atlantic Richfield Co., 371 Pa. Super. 49,
537 A.2d 814 (1987), appeal denied by 520 Pa.
590, 551 A.2d 216 (1988).
(Doc. 11 at 3-4.)

Plaintiff first cites Pennsylvania cases which

9

have held that an implied contract for a reasonable period of
employment exists where an employer induces a plaintiff to sell his
home and move his family in order to accept the employment offer.
(Doc. 11 at 4 (citing News Printing Co., Inc. v. Roundy, 597 A.2d
662 (Pa. Super. 1991); Cashdollar v. Mercy Hosp. of Pittsburgh, 595
A.2d 70 (Pa. Super 1991)).)

The period of employment in News

Printing was approximately three months and in Cashdollar sixteen
days.

(Id.)

Plaintiff also asserts that an employee provides

sufficient additional consideration when the employee gives up
representing other sellers in order to become his employer’s
exclusive representative.

(Id. at 6 (citing Bravman v. Bassett

Furniture Industries, Inc., 552 F.2d 90, 93 (3d Cir. 1977)).)
Identifying the issue as “whether or not the Plaintiff was
entitled to rely upon assurances that she would have full time
employment for a reasonable period of time” (Doc. 11 at 5),
Plaintiff avers that her Second Amended Complaint “sets forth more
than sufficient allegations to fall within the parameters of the
‘contract of employment’ cases discussed” (id. at 7).
We disagree that Plaintiff’s Second Amended Complaint sets out
sufficient factual averments to defeat Defendants’ motion to
dismiss her breach of contract claim.

Plaintiff sets out no facts

analogous to those found sufficient to give rise to a contract of
employment which would overcome Pennsylvania’s at-will presumption:
she does not allege that she moved her family, sold her house, or
10

gave up another job to work exclusively for Defendant Palmerton.
(See Doc. 7.)

Further, assuming arguendo there were such an

employment contract here, the associated “reasonable period of
time” expectation would be met in that Plaintiff was employed by
Defendant Palmerton for two years and eight months compared to the
sixteen days and three months found to be “unreasonable.”
Because Plaintiff’s Second Amended Complaint does not contain
facts which would satisfy the at-will exceptions she identifies in
her opposition brief, we conclude that dismissal of this claim is
proper and Defendants’ motion is granted as to Count I.

Based on

the legal framework provided, it seems unlikely that Plaintiff will
be able to meet the narrow exceptions identified.

However, in an

abundance of caution, we will allow Plaintiff an opportunity to
amend this claim and dismiss Count I for breach of contract without
prejudice as to Defendant Palmerton.
2.

Wrongful Termination
Defendants assert Plaintiff cannot maintain a wrongful

termination claim against Defendant Richards in her individual
capacity because wrongful termination exists only against an
employee’s employer.

(Doc. 10 at 15 (citing Hrosik v. Latrobe

Steel Co., Civ A. No. 94-1361, 1995 WL 456212, at *6 (W.D. Pa. Apr.
25, 1995); Clark v. Pa., 885 F. Supp. 694, 714 (E.D. Pa. 1995)).)
Plaintiff agrees that an individual wrongful discharge claim
against Defendant Richards does not exist under Pennsylvania law.

11

(Doc. 11 at 15.)

Therefore, Count II for Wrongful Termination

against Defendant Richards is dismissed with prejudice.
Regarding Defendant Palmerton’s liability for wrongful
discharge, Defendants again rely on Pennsylvania’s at-will
employment doctrine, noting there are only narrow exceptions based
upon matters of public policy.

(Doc. 10 at 15-16.)

As explained

by the Supreme Court of Pennsylvania, the Court
has steadfastly resisted any attempt to
weaken the presumption of at-will employment
in this Commonwealth. If it becomes the law
that an employee may bring a wrongful
discharge claim pursuant to the “public
policy” exception to the at-will employment
doctrine merely by restating a private cause
of action for the violation of some federal
regulation, the exception would soon swallow
the rule.
McLaughlin v. Gastrointestinal Spec. Inc., 750 A.2d 283, 290 (Pa.
2000).

McLaughlin held that
in order to set forth a claim for wrongful
discharge a Plaintiff must do more than show
a possible violation of a federal statute
that implicates only her own personal
interest. The Plaintiff in some way must
allege that some public policy of this
Commonwealth is implicated, undermined, or
violated because of the employer’s
termination of the employee.

Id. at 289.

Defendants conclude Plaintiff’s claim must be

dismissed because she has not alleged a reason for discharge
consistent with the only public policy exceptions recognized by
Pennsylvania courts: 1) wrongful termination for filing a worker’s
compensation claim; 2) wrongful discharge for filing an
12

unemployment compensation claim, and 3) wrongful discharge for
refusing to submit to a polygraph test.

(Doc. 10 at 17 (citing

Rothrock v. Rothrock Motor Sales, Inc., 883 A.2d 511, 512 (Pa.
2005)).)
Defendants also argue that regardless of the public policy
issues Plaintiff asserts are implicated, her discharge was
permissible.

(Doc. 10 at 21.)

This argument is based on the

assertion that Plaintiff “acknowledges that she was disciplined and
terminated for ‘using profanity’ and ‘refusing to perform a scan, .
. . canceling a CT order, and sending the patient to another
facility.’”

(Doc. 10 at 21 (citing Doc. 7 ¶¶ 41, 45).)

Plaintiff asserts that she has pled a wrongful discharge cause
of action against Defendant Palmerton pursuant to the public policy
exception.

(Doc. 11 at 10.)

After citing several cases in which

the public policy exception was found applicable, Plaintiff argues
that McLaughlin should be read to “indicate that if a Federal
Statute is interwoven into State law, then this Federal law could
actually become part of Pennsylvania’s public policy.”

(Doc. 11 at

12.)
The parties’ briefing of this issue demonstrates that
Defendants urge a narrow interpretation of the public policy
exception and Plaintiff argues for a broader approach.

We conclude

that, although the public policy exception is a narrow one, see,
e.g., Marsh v. Boyle, 530 A.2d 491, 495 (Pa. Super. 1987),

13

recognition of a middle ground is warranted at this stage of the
proceedings, particularly in light of the fact that in
Pennsylvania, “a case-by-case analysis has been adopted in
reviewing a wrongful discharge cause of action.”

McGonagle v.

Union Fidelity Corp., 556 A.2d 878, 884 (Pa. Super. 1989).
Plaintiff’s wrongful discharge claim does “more than show a
possible violation of a federal statute that implicates only her
own personal interest.”

McLaughlin, 750 A.2d 289.

The violations

cited in Plaintiff’s Second Amended Complaint implicate interests
of patients and healthcare workers.

(See Doc. 7 ¶¶ 19-27.)

However, Plaintiff’s Second Amended Complaint falls short in that
McLaughlin held that “a bald reference to a violation of a federal
regulation, without any more articulation of how the public policy
of this Commonwealth is implicated, is insufficient to overcome the
strong presumption in favor of the at-will employment relation.”
750 A.2d at 290.

Plaintiff’s Second Amended Complaint does not

articulate what public policy of the Commonwealth of Pennsylvania
is implicated.

(See Doc. 7.)

In her brief opposing Defendants’

motion to dismiss, Plaintiff cites many cases in support of her
argument that she has sufficiently pled her wrongful termination
claim, but she has not pointed to anything in her Second Amended
Complaint to show that her case is either analogous to cited

14

authority or identifies a specific policy.2

(See Doc. 11.)

While we agree Plaintiff has not sufficiently pled a wrongful
discharge claim, we reject Defendants’ position that whistleblowing
can only be actionable when an employee is under a legal duty to
report the acts at issue (Doc. 10 at 19 (citing Donahue v. Fed. Ex.
Corp., 753 A.2d 238, 244 (Pa. Super. 2000))), or makes a direct
report to the relevant agency (Doc. 13 at 8-9 (citing Field v.
Philadelphia Electric Co., 565 A.2d 1170 (Pa. Super. 1989);
Wetherhold v. Radioshack Corp., 339 F. Supp. 2d 670 (E.D. Pa.
2004)).)
and sizes.

As to the former, “whistleblowing” comes in all shapes
Donahue rejected a claim where the plaintiff complained

of the employer’s “failure to pay invoices and other unscrupulous
practices,” 753 A.2d at 244, and listed cases where whistleblowing
did not support a wrongful discharge claim, id., but alleged
illegality directly affecting patient safety was not discussed and
may be seen to implicate other Commonwealth policies.3
2

For

This conclusion does not mean Plaintiff is precluded from
pleading a Commonwealth policy that has not been specifically
recognized by Pennsylvania courts. However, to the extent she
should decide to seek a novel application of the public policy
exception, this should be articulated and analogized. See infra
n.3. We further note the illegality of the alleged activity is
also central to a wrongful discharge claim: “when the act to be
performed turns upon a question of judgment, as to its legality or
ethical nature, the employer should not be precluded from
conducting its business where the professional’s opinion is open to
question.” McGonagle, 556 A.2d at 885.
3

As explained in Donahue,
15

example, in Tanay v. Encore Healthcare, LLC, 810 F. Supp. 2d 734,
741 (E.D. Pa. 2011), the court denied the defendants motion to
dismiss where the plaintiff had “an affirmative statutory duty to
ensure the safety of residents and employees of the nursing home
[and] had a duty to communicate with management and resolve issues
regarding resident care.”4

Similarly, in Tanay, the plaintiff

[i]n an appropriate case, the courts may
announce that a particular practice violates
public policy, even in the absence of a
legislative pronouncement to that effect.
Schick v. Shirey, 552 Pa. 590, 602, 716 A.2d
1231, 1237 (1998). On the other hand, a
court’s power to announce public policy is
limited: “[p]ublic policy is to be
ascertained by reference to the laws and
legal precedents and not from general
considerations of supposed public interest.”
Id. (citations omitted).
753 A.2d at 243. Weaver v. Harpster, 975 A.2d 555 (Pa. 2009),
shows that a plaintiff has a very steep climb in demonstrating a
public policy violation which has not been previously recognized:
In our judicial system, the power of the
courts to declare pronouncements of public
policy is sharply restricted. Rather, it is
for the legislature to formulate the public
policies of the Commonwealth. The right of a
court to declare what is or is not in accord
with public policy exists only when a given
policy is so obviously for or against public
health, safety, morals, or welfare that there
is a virtual unanimity of opinion in regard
to it. Only in the clearest of cases may a
court make public policy the basis for its
decision.
Id. at 563 (internal citations and quotations omitted).
4

Tanay is cited only as an example of the potential scope of
the public policy exception and not as a case analogous to the case
16

complained only to his employer.5
We also conclude that Defendants correctly argue that certain
aspects of Plaintiff’s wrongful termination claim are clearly
foreclosed, including violations of civil rights acts and alleged
ethical code violations.

(Doc. 10 at 18-21.)

argue otherwise in her opposition brief.

Plaintiff does not

(See Doc. 11.)

Having determined that Plaintiff’s wrongful termination claim
must be dismissed, we must decide whether amendment would be
futile.

As noted in the margin, the Plaintiff faces a difficult

task making the necessary factual averments to survive a challenge
to a wrongful termination claim based on the public policy
exception to the at-will employment presumption.

See supra n.3.

Although this difficulty does not equate with futility, amendment
would be futile if we were to agree with Defendants’ averment that
“Plaintiff acknowledges that she was disciplined for ‘using
profanity’ and ‘refusing to perform a scan, . . . canceling a CT
order, and sending the patient to another facility.’”
21 (citing Doc. 7 ¶¶ 41, 45).)

(Doc. 10 at

Defendants are correct that

Plaintiff did not contest this assertion in arguing against
dismissal of her wrongful termination claim in her opposition
brief.

(Doc. 13 at 9.)

But that is not the end of our inquiry

because Plaintiff avers in her Second Amended Complaint that the

at bar.
5

See supra n.4.
17

accusations concerning profanity and the other alleged bases for
termination were false and the reasons given for her termination
were pretextual (Doc. 7 ¶¶ 46, 47, 49).

Therefore, in an abundance

of caution, we will allow Plaintiff an opportunity to amend her
wrongful termination claim in a manner consistent with the
foregoing discussion.
3.

ADEA Claim
Defendants first argue that Plaintiff’s ADEA claim (Count III)

of Plaintiff’s Second Amended Complaint must be dismissed against
Defendant Richards because no individual liability exists under the
ADEA.

(Doc. 10 at 22.)

dismissed.

Plaintiff concedes that this claim must be

(Doc. 11 at 8.)

Therefore, Count III for a violation

of the ADEA against Defendant Richards is dismissed with prejudice.
Defendants also contend that Plaintiff’s ADEA claim against
Defendant Palmerton Hospital must be dismissed because she has pled
only legal conclusions and speculative averments.

(Doc. 10 at 23.)

For the reasons discussed below, we agree this claim is
appropriately dismissed.
The ADEA makes it unlawful for an employer to discriminate
against any individual in hiring, termination, compensation, or
conditions of employment on the basis of the individual’s age.
U.S.C. § 623(a)(1).

29

Where the plaintiff lacks direct evidence of

discrimination, an ADEA claim is evaluated under the burdenshifting framework for Title VII cases outlined in McDonnell

18

Douglas Corp. v. Green, 411 U.S. 792 (1973).

See Smith v. City of

Allentown, 589 F.3d 684, 691 (3d Cir. 2009).

This framework places

the initial burden on the plaintiff to establish a prima face case
of discrimination.

Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 142 (2000).

If the plaintiff succeeds in establishing a

prima facie case, the burden shifts to the defendant to articulate
a legitimate, non-discriminatory reason for the adverse employment
action.

Id.

To prevail, the plaintiff must prove, by a

preponderance of the evidence, that the defendant’s legitimate
reason was in fact pretext of discrimination.

Id.

The elements of the plaintiff’s prima facie case are: 1) the
plaintiff is forty years of age or older; 2) the defendant took an
adverse employment action against the plaintiff; 3) the plaintiff
was qualified for the position in question; and 4) the plaintiff
was ultimately replaced by another employee who was sufficiently
younger to support an inference of discriminatory animus.

Smith,

589 F.3d at 689 (citing Potence v. Hazleton Area Sch. Dist., 357
F.3d 366, 370 (3d Cir. 2004)).

The Third Circuit Court of Appeals

has also allowed that a plaintiff may satisfy the fourth prong of
the prima facie case by showing that the employer had a continued
need for someone to perform the same work after the plaintiff left.
Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 354 (3d Cir.
1999) (citation omitted).
In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009),
19

the Court considered whether the ADEA allowed a mixed motive claim,
(where a plaintiff claims that she was treated adversely because of
both permissible and impermissible reasons) and concluded the
statutory text of the ADEA does not authorize mixed motives age
discrimination claims.

557 U.S. at 171, 175.

Thus, to establish a

disparate treatment claim under the ADEA, a plaintiff must prove
that age was the “but-for” cause of the employer’s adverse action.
Id. at 176.

As stated by the Third Circuit Court of Appeals, Gross

construed the ADEA’s statutory language “as requiring the plaintiff
to prove but-for causation from the outset of an ADEA case.”
Smith, 589 F.3d at 690 (citing Gross, 557 U.S. at 177-78).
Even assuming arguendo that Plaintiff’s Second Amended
Complaint set out the elements of a prima facie age discrimination
claim, we conclude this claim fails because Plaintiff’s averments
foreclose relief under the ADEA.

Plaintiff “believes, and

therefore avers, that she was discriminated against because of her
age, because she is significantly older than the majority, if not
all, the other CT Technologists whom were about age thirty (30) or
younger.”

(Doc. 7 ¶ 73.)

To the extent this statement is

construed as an assertion that Defendants violated the ADEA, it is
a legal conclusion contradicted by another averment found in the
Second Amended Complaint where Plaintiff states that “Defendants
did not terminate other employees for profanity because they were
younger and were willing to engage in illegal directives.”

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(Doc. 7

¶ 54.)

With this averment, in addition to age, Plaintiff provides

another reason for her adverse treatment--younger employees were
willing to engage in “illegal directives” and she was not.

Thus,

Plaintiff essentially states a mixed motives claim–-she was treated
differently because of age and something else.

This statement

equates with an admission that age was not the “but-for” cause of
the adverse action as required by the statute.
at 175-77.

See Gross, 557 U.S.

Given this averment, dismissal of Plaintiff’s ADEA

claim is appropriate.

Although it is unlikely that Plaintiff can

overcome this deficiency, in an abundance of caution we will allow
her leave to amend.

Therefore, Plaintiff’s ADEA claim against

Defendant Palmerton is dismissed without prejudice.
4.

Pennsylvania Human Relations Act Claims
Defendants assert that Counts IV and V asserting violations of

the Pennsylvania Human Relations Act (“PHRA”) must be dismissed
because Plaintiff has failed to exhaust her administrative
remedies, and, to the extent the claims are coextensive with her
ADEA claim, she has failed to sufficiently plead an age
discrimination claim under the PHRA.

(Doc. 10 at 24-27.)

We

agree.
Defendants exhaustion argument is based on the fact that the
PHRA contains an exhaustion requirement and the assertion that
Plaintiff filed her civil action within the one-year period when
the Pennsylvania Human Relations Commission has exclusive

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jurisdiction over a claim.

(Doc. 10 at 25 (citing Clay v. Advanced

Computer Applications, Inc., 559 A.2d 917, 921 (Pa. 1989); 43 Pa.
C.S. § 962(c)(1)).)
Plaintiff argues that Defendants’ arguments are faulty because
“courts have declined to dismiss lawsuits when the one-year period
elapses during litigation, instead of dismissing the claim on a
technical defect that has since been cured.”6

(Doc. 11 at 9

(citing Troendle v. Yellow Freight, Inc., Civ. No. 97-2430, 1999 WL
89747, at *7 (E.D. Pa. Feb. 2, 1999); Violanti v. Emery Worldwide
A-CF Co., 847 F. Supp. 1251, 1258 (M.D. Pa. 1994)).)

Plaintiff

adds that her PHRA claims should not be dismissed for failure to
exhaust because “it might be possible for the Plaintiff to
ultimately present additional evidence through pretrial discovery
to prove that she submitted questionnaires or other verified
documents to the PHRC more than one year prior to filing her Second
Amended Complaint.”

(Doc. 11 at 10 (citing Pergine v. Penmark

Mgmt. Co., 314 F. Supp. 2d 486, 490 (E.D. Pa. 2004)).)
Defendants undermine Plaintiff’s reliance on Troendle and
Violanti with the assertion that in both cases the courts refused
to dismiss the prematurely-filed PHRA claims because more than one
year had passed since the plaintiffs’ PHRC filings when the

6

Plaintiff concedes that Count IV is not properly brought
against Defendant Richards. (Doc. 11 at 10.)
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exhaustion issue was raised.

(Doc. 13 at 12.)

In contrast, here

Defendants raised the exhaustion issue within the one year period.
(Doc. 13 at 13.)

Defendants also assert that the Court should

dismiss Plaintiff’s PHRA claims because her filing of the civil
action only two months after filing her PHRC administrative charge
“does not evidence a ‘good faith use of procedures provided for the
disposition of the [PHRA] complaint.’” (Doc. 13 at 14 (citing Lyons
v. Springhouse Corp., Civ. A. No. 92-6133, 1993 WL 69515, at *3
(E.D. Pa. Mar. 10, 1993)).)

Finally, Defendants urge the Court to

reject Plaintiff’s request to be afforded discovery on the issue as
it was Plaintiff herself who submitted the documents to the PHRC.
(Doc. 13 at 14.)
We agree with Defendants that Plaintiff failed to exhaust her
administrative remedies regarding her PHRA claims, Counts IV and V
of her Second Amended Complaint.

Further, Plaintiff has failed to

show how this failure falls into the category where exhaustion
should be excused.

Therefore, Plaintiff’s PHRA claims are

dismissed with prejudice.
III. Conclusion
For the reasons discussed above, Defendants Palmerton Hospital
and Lois Richards’ Motion to Dismiss (Doc. 9) is granted in part.
It is denied to the extent that certain claims are dismissed
without prejudice.

Count I for breach of contract is dismissed

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with prejudice as to Defendant Richards and dismissed without
prejudice as to Defendant Palmerton.

Count II for wrongful

termination is dismissed with prejudice as to Defendant Richards
and dismissed without prejudice as to Defendant Palmerton.

Count

III for age discrimination under the ADEA is dismissed with
prejudice as to Defendant Richards and dismissed without prejudice
as to Defendant Palmerton.

Counts IV and V for violations of the

PHRA are dismissed with prejudice.
simultaneously with this action.

An appropriate Order is filed
Should Plaintiff choose to do so,

an amended complaint is to be filed within fourteen (14) days of
the date of this Memorandum and simultaneously filed Order.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: November 13, 2012

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