Mrs. Aquino alleges in the Second Amended Complaint that she did file a complaint with the PHRC alleging sex discrimination and the PHRA did enter into a conciliation agreement to which she was a party; Mrs. Aquino's claim of wrongful discharge based on sex discrimination is barred and that portion of Count 3 will be dismissed.
However, Mrs. Aquino's claim of discharge in retaliation for filing a complaint with the PHRC is not barred by 43 Pa.C.S.A. § 962(b) because she did not invoke the protection of the PHRA to remedy this wrong. A discharge in retaliation for filing a complaint with the PHRC is unlawful under 43 Pa.C.S.A. § 955(d). Dismissal from employment for participating in proceedings before the PHRC may be contrary to a clear mandate of public policy, 43 Pa.C.S.A. § 955(d); if so, Mrs. Aquino has a valid claim for wrongful discharge and this ground for Count 3 will not be dismissed. Cf. Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d Cir. 1983) (Pennsylvania law permits cause of action by employee for wrongful discharge where employment termination abridges significant and recognized public policy).
Mr. Aquino's wrongful discharge claim alleging dismissal because he participated in his wife's PHRC proceeding also withstands defendant's motion to dismiss; Mr. Aquino did not invoke the PHRA protections himself and § 955(d) prohibits the discriminatory discharge of an employee for testifying at a PHRC proceeding. Because the second amended complaint alleges that non-testifying employees were not dismissed but that Mr. Aquino was dismissed, that portion of Count 3 alleging Mr. Aquino's discharge for testifying states an actionable claim for wrongful discharge.
Defendant also argues that Mr. and Mrs. Aquino fail to state a claim for wrongful discharge if the dismissals were in retaliation for Mr. Aquino's filing a workmen's compensation claim. Geary v. U.S. Steel Corp., 456 Pa. 171, 183 n.16, 319 A.2d 174, 180 n.16 (1974), suggests that this allegation if proved would sustain a cause of action for wrongful discharge. See Butler v. Negley House, Inc., 20 Pa. D. & C. 3d 543, 129 Pa.L.J. 350 (Ct. Comm. Pleas Allegheny County 1981) (Pennsylvania common law provides a wrongful discharge cause of action against employer who takes retaliatory action in response to employee's filing workmen's compensation claim). Cf. Phillips v. Babcock & Wilcox, 349 Pa. Super. 351, 503 A.2d 36 (1986) (wrongful discharge suit based on retaliation for filing workmen's compensation claim cannot be brought by employee covered by collective bargaining agreement because otherwise protected by contract). Although there is no Pennsylvania Supreme Court decision squarely on point, developing Pennsylvania law suggests there may be a cause of action for discharge in retaliation for filing workmen's compensation claims. Alexander v. Red Star Express Lines of Auburn, Inc., 646 F. Supp. 672 (E.D. Pa. 1986), aff'd without opinion, 813 F.2d 396 (3d Cir. 1987). But the cause of action is Mr. Aquino's alone; there is nothing in recent Pennsylvania court decisions to suggest a common law claim for wrongful discharge in retaliation for a workmen's compensation claim not filed by the employee but by his or her spouse. Defendant's motion to dismiss Count 3 on this ground is denied as to Mr. Aquino but granted as to Mrs. Aquino.
Plaintiffs request attorneys' fees for the time spent responding to defendant's motion on the ground that the motion is "both frivolous and dilatory;" the request was stated as "new matter" in their answer to the motion to dismiss. This "new matter" must be deemed a motion for attorneys' fees under Fed.R.Civ.P. 11. Awarding fees for a violation of Rule 11 is within the discretion of the court. Fed.R.Civ.P. 11 Notes of Advisory Committee on Rules (West Supp. 1986). It is true that defendant's "Statement of Facts" (Motion, unpaginated) was improperly presented; even if supported by affidavit, which it was not, it is clear that on a motion to dismiss, the wellpleaded facts of the complaint must be accepted as true. The "facts" improperly stated by defendant were ignored by the court. But defendant's motion raised some grounds of substance on which it has prevailed in part; defendant's motion is not any more frivolous than is plaintiffs' complaint. The claim and defenses must be litigated on a full record. The court does not find the defendant's motion was "interposed for any improper purpose, such as to harass or to cause unnecessary delay," Fed.R.Civ.P. 11. The request for attorneys' fees is denied without prejudice to a renewed request under 42 U.S.C.A. § 2000e-5(k) if plaintiffs prevail on the merits of Count 1.
An appropriate Order follows.
AND NOW, this 19th day of March, 1987, upon consideration of defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), defendant's memorandum in support thereof, plaintiffs' memorandum in opposition thereto, and for the reasons set forth in the foregoing Memorandum, it is ORDERED that:
1. Defendant's motion is DENIED as to Count 1.
2. Defendant's motion is GRANTED as to Count 2.
3. Defendant's motion is GRANTED in part and DENIED in part as to Count 3; it is granted as to that part of Count 3 alleging Helen Aquino was wrongfully discharged because of sex discrimination and harassment; it is denied as to those parts of Count 3 alleging Helen and Ray Aquino were wrongfully discharged in retaliation for testifying before the PHRC and those parts of Count 3 alleging Ray Aquino was wrongfully discharged in retaliation for his filing a workmen's compensation claim; it is granted as to that part of Count 3 alleging Helen Aquino was wrongfully discharged in retaliation for Ray Aquino's filing a workmen's compensation claim.
4. Plaintiffs' "new matter," construed as a motion for attorneys' fees under Fed.R.Civ.P. 11 is DENIED.