Martin v. SIMOS
Filing
9
MEMORANDUM (Order to follow as separate docket entry) re 3 MOTION TO DISMISS Signed by Honorable James M. Munley on 5/30/17. (sm)
IN THE UNITED STATES DISTICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT MARTIN IV,
Plaintiff
:
No. 3:17cv589
:
:
(Judge Munley)
v.
:
:
SIMOS, t.d.b.a. SIMOS
:
INSOURCING SOLUTIONS,
:
Defendant
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is defendant’s motion to dismiss, filed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 5).
The parties have briefed their respective positions and the motion is ripe for
disposition.
Background
On July 27, 2016, Plaintiff, Robert Martin IV (hereinafter “plaintiff”)
interviewed for a job at Lowe’s Distribution Center, located in Schuylkill
County, Pennsylvania. (Doc. 1-1, Pl’s. Compl.)(hereinafter “Compl.”)(¶ 5)
Defendant, SIMOS Insourcing Solutions, (hereinafter “SIMOS”) interviewed
plaintiff on Lowe’s behalf.1 During the initial interview, plaintiff revealed that
he had a prior criminal record and mentioned that he did not want to waste
time applying if he would be rejected due to the criminal record. (Compl. ¶
The exact relationship between SIMOS and Lowe’s is not made clear in
the complaint.
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5). Defendant ran a background check on plaintiff at the interview, advised
him he was “good to go,” and hired him on the spot to work at Lowe’s.
(Compl. ¶¶ 7, 8). Shortly thereafter, plaintiff began working at Lowe’s
unloading trucks. (Compl. ¶ 9).
While he worked at Lowe’s, a female employee alleged that plaintiff
had harassed her, whereupon plaintiff was temporarily suspended pending
an investigation. (Compl. ¶ 10). SIMOS contacted plaintiff, advising that
he had been cleared of the allegation, and then he returned to work for
about one day before being told to contact a human relations
representative.
Plaintiff contacted a human relations representative who informed
him that he would be terminated because of his criminal history. (Compl. ¶
13). Plaintiff received by mail a “Pre-Adverse Notice” dated September 26,
2016, which included a background screening report containing his prior
criminal history. (Compl. ¶¶ 15-16).
On or about October 4, 2016, SIMOS terminated plaintiff’s
employment because of the criminal history. (Compl. ¶¶ 17-18). Plaintiff
filed his complaint on March 2, 2017, in the Court of Common Pleas for
Schuylkill County, Pennsylvania, alleging only one count: wrongful
termination based upon Pennsylvania’s Criminal History Records
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Information Act, (hereinafter “CHRIA”), 18 PA. CONS. STAT. §§ 91019183. (Compl. ¶¶ 25-31.) Specifically, the plaintiff alleges the defendant’s
actions constitute wrongful termination because they violate public policy
as codified in CHRIA. On April 3, 2017, defendant filed a Notice of
Removal (Doc. 1), and on April 8, 2017, defendant filed the instant motion
to dismiss, bringing the case to its present posture.
Jurisdiction
The court has jurisdiction pursuant to the diversity statute, 28 U.S.C.
§ 1332. Plaintiff is a citizen of Pennsylvania. (Compl. ¶ 1). SIMOS is
incorporated in Delaware with its principal place of business in Georgia.
(Compl. ¶ 2; Doc. 1, Notice of Removal ¶ 10). Because complete diversity
of citizenship exists between the parties and the amount in controversy
exceeds $75,000, the court has jurisdiction over the case. See 28 U.S.C. §
1332 (“[D]istrict courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between . . . citizens of different
States[.]”). As a federal court sitting in diversity, the substantive law of
Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa,
210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S.
64, 78 (1938)).
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Standard of review
This case is before the court pursuant to defendants' motion to
dismiss for failure to state a claim upon which relief can be granted filed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. When a
12(b)(6) motion is filed, the sufficiency of the allegations in the complaint is
tested. Granting the motion is appropriate if, accepting as true all the facts
alleged in the complaint, the plaintiff has not pleaded “enough facts to state
a claim to relief that is plausible on its face,” or put another way, “nudged
[his or her] claims across the line from conceivable to plausible.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Third Circuit
interprets Twombly to require the plaintiff to describe “enough facts to raise
a reasonable expectation that discovery will reveal evidence of” each
necessary element of the claims alleged in the complaint. Phillips v.
County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly,
550 U.S. at 556). Moreover, the plaintiff must allege facts that “justify
moving the case beyond the pleadings to the next stage of litigation.” Id. at
234-35.
The issue is whether the facts alleged in the complaint, if true,
support a claim upon which relief can be granted. In deciding a 12(b)(6)
motion, the court must accept as true all factual allegations in the complaint
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and give the pleader the benefit of all reasonable inferences that can fairly
be drawn therefrom, and view them in the light most favorable to the
plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d
Cir.1997). To decide a motion to dismiss, a court generally should
consider only the allegations in the complaint, exhibits attached to the
complaint, matters of public record, and documents that form the basis of a
claim. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426
(3d Cir. 1997); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.,
998 F.2d 1192, 1196 (3d Cir. 1993)
Discussion
Plaintiff’s complaint contains one count, wrongful termination. (Doc.
1-1, Compl. ¶¶ 25-31). Plaintiff alleges that he was wrongfully terminated
from his employment due to his criminal history. Defendant moves to
dismiss the complaint arguing that Pennsylvania is an “at-will” employment
state and, as a matter of law, plaintiff’s termination was legal. After a
careful review, we agree with the defendant.
Pennsylvania is an “at-will” employment state, as such, employers
enjoy an almost unfettered right to terminate a worker without cause. See
Henry v. Pittsburgh & L.E.R. Co., 21 A. 157 (Pa. 1891) (“A railroad
corporation, or an individual, may discharge an employee with or without
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cause at pleasure, unless restrained by some contract ....”); see also
Weaver v. Harpster, 975 A.2d 555, 562 (Pa. 2009) (“In Pennsylvania,
absent a statutory or contractual provision to the contrary, either party may
terminate an employment relationship for any or no reason.” (citing Geary
v. U.S. Steel Corp., 319 A.2d 174, 176 (Pa. 1974)).
Two potential exceptions to the at-will employment doctrine exist,
under which an employee may seek damages for wrongful termination:
first, when an employer terminates an employee with a special intent to
harm, and second, when an employee's termination is contrary to public
policy. See Goodwin v. Moyer, 549 F. Supp. 2d 621, 636 (M.D. Pa. 2006)
(citing Ritter v. Pepsi Cola Operating Co. of Chesapeake & Indianapolis,
785 F. Supp. 61, 63-64 (M.D. Pa. 1992)).
Here, plaintiff alleges the public policy exception to at-will
employment applies. The public policy exception to the at-will employment
doctrine is narrow and predicated on a finding of a clearly defined public
policy mandate that concerns a citizen's social rights and responsibilities.
See Field v. Phila. Elec. Co., 565 A.2d 1170, 1179 (Pa. Super. Ct.1989);
see also Geary, 319 A.2d at 180 (recognizing that an action for wrongful
termination may be appropriate when the at-will employment relationship
was terminated in clear violation of a mandate of public policy); Hunger v.
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Grand Cent. Sanitation, 670 A.2d 173, 176 (Pa. Super. Ct. 1996) (“We
have recognized a public policy exception only in extremely limited
circumstances.”).
In explaining Pennsylvania law, the Third Circuit has recognized that
“although the perimeters of the narrow public policy exception have not
been precisely defined, there appear to be ‘three limited circumstances in
which public policy will trump employment at-will.” Fraser v. Nationwide
Mut. Ins. Co., 352 F.3d 107, 111 (3d Cir. 2003). Those three circumstances
are: (1) an employer cannot require an employee to commit a crime; (2) an
employer cannot prevent an employee from complying with a statutorily
imposed duty; and (3) an employer cannot discharge an employee when
specifically prohibited from doing so by statute. Id. Plaintiff’s complaint
alleges the existence of none of the three limited and judicially recognized
circumstances.
Instead of relying on one of the three limited judicially recognized
circumstances that give rise to public policy exceptions, plaintiff argues that
the CHRIA demonstrates Pennsylvania’s public policy that former convicts
obtain employment and become productive citizens. By its own terms,
however, the CHRIA applies only to the hiring stage of employment, not to
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the termination of employment.2 Although, hiring/termination may seem
like two sides of the same coin, courts have consistently held that a
distinction exists, and the CHRIA applies to hiring and not to firing. See
Miller v. Autopart Int’l , No. 3:15cv384, 2016 WL 815596 at *3 (M.D. Pa.
Mar. 2, 2016); Dean v. Specialized Soc. Response, No. 09-515, 2011 WL
3734238, at *15 (W.D. Pa. Aug. 24, 2011), Betchy v. Pa. Coach Lines,
2012 Pa. Dist. & Cnty. Dec. LEXIS 472 at *3 (Allegheny April. 19, 2012).
Plaintiff argues that this interpretation of the statute doesn’t make
sense. Plaintiff reasons that CHRIA is “a complete nullity, [because] an
employer could obtain a criminal background check on an applicant, hire
the applicant for one day (claiming it did not consider the criminal history)
Specifically, the CHRIA provides:
(a) General rule -- Whenever an employer is
in receipt of information which is part of an
employment applicant’s criminal history record
information file, it may use that information for the
purpose of deciding whether or not to hire the
applicant, only in accordance with this section.
(b) Use of Information -- Felony and
misdemeanor convictions may be considered by the
employer only to the extent to which they relate to
the applicant’s suitability for employment in the
position for which he has applied.
(c) Notice -- The employer shall notify in
writing the applicant if the decision not to hire the
applicant is based in whole or in part on criminal
history record information.
18 PA. CONS. STAT. § 9125.
2
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and then immediately terminate the applicant based upon the criminal
background history.” (Doc 5 at 12). While plaintiff’s logic might be
compelling, it is not the law. Rather, the CHRIA prohibits employers from
arbitrarily relying on a job applicant’s criminal history record information
during the hiring process. The statute is silent regarding use of criminal
history information for purposes of terminating an employee. See 18 PA.
CONS. STAT. § 9125, McCorkle v.Schenker Logistics, Inc., No. 1:13-CV3077, 2014 WL 5020598 at *4 (M.D. Pa. Oct. 8, 2014.)3
Accordingly, we find that the CHRIA does not establish a public policy
exception to at-will employment under Pennsylvania law. The defendant’s
motion to dismiss will be granted.4
Conclusion
In the instant action, plaintiff failed to allege a cause of action under
the CHRIA, and failed to allege any of the three judicially recognized and
We need not address whether plaintiff has alleged a violation of the
CHRIA because his complaint does not allege a cause of action for
violation of the CHRIA. It appears, however, that as plaintiff complains of a
termination and not a hiring, that he could not maintain such a cause of
action.
4
In certain circumstances it would be appropriate to dismiss the case
provisionally and allow the plaintiff to file an amended complaint. Lorenz v.
CSX Corp., 1 F.3d 1406, 1413 (3d Cir. 1993). We do not provide the
opportunity to amend, however, where such amendment would be futile. In
re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).
In the instant case, an amendment would not cure the deficiency, therefore,
we will dismiss the case without opportunity to amend.
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defined circumstances in which public policy would override employment
at-will. Because plaintiff was an at-will employee, and because his
termination does not violate the narrowly defined Pennsylvania public
policy exceptions, the plaintiff has failed to state a claim for wrongful
discharge under Pennsylvania law. The defendant's motion to dismiss will
be granted. An appropriate order follows.
Date: May 30, 2017
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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