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RETTINGER v. AMERICAN CAN CO.

September 2, 1983

HAZEL RETTINGER, Plaintiff
v.
AMERICAN CAN COMPANY, Defendant



The opinion of the court was delivered by: RAMBO

 I. Background

 According to the facts set forth in the complaint and supporting documents which are taken as true for purposes of this motion with all inferences viewed in the light most favorable to plaintiff, Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977), plaintiff began her employment with defendant in 1952 grading and gauging tin plate (i.e. a plate sorter). Plaintiff worked at this job for twenty-six years and as a result, developed degenerative arthritis of both hands. On February 13, 1978 plaintiff advised defendant of her condition and her inability to perform her job as a plate sorter. Plaintiff underwent surgery on her right hand in May of 1978 and February of 1979. Plaintiff filed a workmen's compensation claim on or about February 7, 1979 which was granted on June 16, 1981. In March of 1980 plaintiff submitted to an examination by orthopedic surgeon Joseph Danyo, M.D. at the request of defendant. Dr. Danyo advised defendant that, among other things, if plaintiff returned to her previous employment, her arthritic condition would continue or become aggravated. In July 1980 defendant offered plaintiff a job as a plate classifier which plaintiff attempted but was unable to perform because of the physical condition of her hands. On July 30, 1980 plaintiff's physician, Dr. Stanley Gordon, wrote a report, a copy of which was sent to defendant in the summer of 1980, stating that plaintiff should not be working as a plate classifier. On December 9, 1980, defendant directed plaintiff to report to work on January 5, 1981 as a plate classifier. Plaintiff's counsel advised defendant on or before January 5, 1981 that plaintiff would not report for work as a plate classifier, citing Dr. Gordon's report. Defendant fired plaintiff on January 12, 1981 for not working as a plate classifier. In June 1981 plaintiff received workman's compensation benefits and thereafter sought reinstatement with defendant. Defendant refused to reinstate plaintiff.

 Defendant argues that as a matter of fact and law plaintiff has failed to state a claim for which relief may be granted. In its first argument defendant maintains that plaintiff was not fired for filing a workmen's compensation claim. Rather defendant claims that plaintiff voluntarily terminated her employment by failing to report for work as a plate classifier within five working days after receiving directions to do so without providing a satisfactory explanation. Defendant finds that plaintiff admits in paragraph seventeen of the complaint that her refusal to work as a plate classifier resulted in her termination. Defendant maintains that an employer is not obligated to continue the employment of an individual who refuses to work and that nothing in the Workmen's Compensation Act prohibits such a discharge. From defendant's perspective, plaintiff has failed to factually state a claim upon which relief can be granted.

 In its second argument defendant contends that plaintiff has failed as a matter of law to state a claim upon which relief can be granted. Defendant asserts that the Pennsylvania General Assembly failed to include a remedy within the Pennsylvania Workmen's Compensation Act for wrongful discharge in retaliation for filing a workmen's compensation claim. Defendant contends that this absence indicates the legislature's intention not to create such a cause of action. Defendant further argues that the courts of Pennsylvania have not recognized such a cause of action. Defendant cites O'Neill v. A.R.A. Services, Inc., 457 F. Supp. 182 (E.D. Pa. 1978) for the proposition that in general the Pennsylvania courts do not recognize a cause of action for wrongful discharge and that in the absence of a statutory or contractual provision, an employer's right to hire and fire is virtually absolute. Defendant acknowledges that the Pennsylvania Supreme Court stated in Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974) that when the discharge of an employee-at-will threatens public policy, the employee may have a cause of action against the employer for wrongful discharge. Defendant argues, however, that Geary also held that where the complaint discloses a plausible and legitimate reason for terminating an at-will employee which does not violate a clear mandate of public policy, an employee-at will has no cause of action for wrongful discharge. Applying the two-part Geary analysis, defendant contends that plaintiff's refusal to work in her assigned position as a plate classifier was a legitimate, plausible reason for her termination for which there is no statutory or public policy prohibition.

 Plaintiff stated in her opposing brief that she had filed an affidavit averring that she would produce evidence establishing that defendant had other jobs available that it could have assigned to her but which it refused to do. Plaintiff also states in her brief that her affidavit indicates she will produce evidence establishing that defendant had a policy of placing injured employees who were incapable of performing their regular jobs on inactive status so they could continue their eligibility for certain benefits. Plaintiff contends that defendant knew of the problems surrounding her performance of the plate classifier job based on two medical reports yet defendant still directed plaintiff to report for the classifier job. Plaintiff argues that defendant acted with improper motives in assigning plaintiff to a job it knew would be detrimental to her health and then terminating her as an example to others.

 Plaintiff also contends that the Pennsylvania courts would recognize a cause of action for retaliatory discharge for filing a workmen's compensation claim.

 Discussion

 A. Summary Judgment Standards

 Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

 The moving party, in this case defendant, has the burden of demonstrating the absence of a genuine issue as to any material fact. Fairbanks, Morse & Co. v. Consolidated Fisheries Co., 190 F.2d 817, 824 (3d Cir. 1951). Further, in considering defendant's motion, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993, (1962).

 The court will first address defendant's contention that Pennsylvania courts have refused to recognize a cause of action for wrongful discharge in retaliation ...


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