lay-off is suspect, it asserts that it is purely coincidental. The reasons given are sufficiently non-discriminatory to shift the burden back to plaintiff to prove that they are pretextual.
Although plaintiff regains the ultimate burden of proving that defendant acted with discriminatory intent, defendant, as the moving party, retains the burden of showing that no genuine issue of material fact exists. "To meet its burden on summary judgment, the defendant employer must show that the plaintiff will be unable to introduce either direct or indirect evidence of a purpose to discriminate, or indirect evidence of that purpose by showing that the proffered reason [for the employment decision] is subject to factual dispute." Chipollini, 814 F.d at 899. In other words, a plaintiff raises a genuine issue of material fact if he points to evidence which calls defendant's legitimate business reasons into question. Id.
Plaintiff has raised a genuine issue of material fact as to whether his alleged insubordination was the reason for his suspension. First, there is some dispute as to whether plaintiff was insubordinate at all. Plaintiff testified at his deposition that it was Medlin and not plaintiff who was confrontational and unreasonable. In addition, the character of the alleged insubordination itself might appear pretextual on its face. Plaintiff was not accused of any type of egregious malfeasance; rather, there was a heated exchange between plaintiff and Medlin. Considering plaintiff's otherwise exemplary record, insubordination of such a mild nature would not seem to justify discharge.
With regard to defendant's more substantial claim that plaintiff was discharged because he did not hold a valid driver's license, there are several indications that it is pretextual. First, plaintiff asserts that he was told when he was hired that he did not need to get a Pennsylvania license because of the impending implementation of a federal licensing system for commercial drivers. He allegedly was told that his Kentucky license would suffice in the interim. Indeed, evidence exists that Midwest was aware throughout his employment that plaintiff did not have a Pennsylvania driver's license. In addition, upon being informed that a problem existed with his license, plaintiff immediately obtained a Pennsylvania learner's permit which was validated by the State Police. There is some dispute as to whether a validated learner's permit is equivalent to a license. Second, plaintiff also is prepared to attempt to prove that Midwest had no policy requiring the suspension of drivers without current valid licenses. Apparently, as early as October defendant was aware that the driver who had the accident in December, 1989, had allowed his Pennsylvania license to lapse. There also is an affidavit of another Midwest employee hired on January 15, 1990, who states that he was permitted to work as a driver for defendant though he had only a Pennsylvania learner's permit. Third, plaintiff asserts that the alleged review of drivers' files was pretextual. It is notable in this regard that the driver involved in the December accident had allowed his license to expire and had no license at all. It was not a matter of his having an out-of-state license, as it was with plaintiff. Finally, plaintiff has produced an affidavit tending to prove that other Guard members also had difficulties taking time off from Midwest to attend drill assemblies.
When considering a defendant's summary judgment motion, a district court should consider whether a plaintiff's proffered "evidence of inconsistencies and implausibilities in the employer's proffered reasons for discharge could support an inference that the employer did not act for non-discriminatory reasons . . . ." Chipollini, 814 F.2d at 900. It is virtually impossible to separate the evidence regarding defendant's licensing theory and plaintiff's evidence regarding his request for time off. From the record, it is not clear which matter sparked which, or if they were related at all. The foregoing evidence, in combination with the suspect timing of plaintiff's suspension and the combativeness with which Medlin met plaintiff's request for leave to attend the drill assembly, raises a genuine issue of material fact as to whether defendant suspended plaintiff solely because of his Guard membership. Accordingly, summary judgment will be denied on plaintiff's VRRA claim.
Plaintiff also asserts, in Count III of his complaint, a common law cause of action for wrongful discharge. In Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (Pa. 1974), the Pennsylvania Supreme Court declined to adopt a non-statutory cause of action for wrongful termination in violation of public policy. The court stated in dicta, however:
It may be granted that there are areas of employee's life in which his employer has no legitimate interest. An intrusion into one of these areas by virtue of the employer's power of discharge might plausibly give rise to a cause of action, particularly where some recognized facet of public policy is threatened.
Id. at 180. Relying on this statement, the Superior Court has indicated that a cause of action does exist in Pennsylvania for wrongful discharge if an employee is discharged with a specific intent to harm him or in violation of a statutory or constitutional public policy. See, e.g., Tourville v. Inter-Ocean Insurance Co., 353 Pa. Super. 53, 508 A.2d 1263, 1265 (Pa.Super. 1986).
Courts have determined that performing jury service, Reuther v. Fowler & Williams, Inc., 255 Pa. Super. 28, 386 A.2d 119 (Pa.Super. 1978), and exercising one's First Amendment rights, Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d Cir. 1983), are activities which are protected by public policy and should not result in discharge from employment. Maintaining the readiness and efficiency of our National Guard and ensuring the job security of its members is an important public policy canonized in statutory and constitutional provisions. See, e.g., 51 Pa.Cons.Stat. § 1101 et seq. and § 7301 et seq. Defendant has asserted that it had a legitimate business reason for suspending plaintiff. Although defendant's assertion if true could be a defense to a wrongful discharge claim, as discussed above defendant's asserted reasons have been called into doubt by plaintiff's proffered evidence. Thus, a genuine issue of material fact exists as to whether plaintiff was wrongfully discharged. Summary judgment will be denied as to Count III of plaintiff's complaint.
Plaintiff's fourth count asserts a cause of action for intentional infliction of emotional distress and demands compensatory and punitive damages. "The gravamen of the tort of intentional infliction of emotional distress is outrageous conduct on the part of the tortfeasor." Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988, 991 (Pa. 1987). Wrongful discharge from employment typically does not rise to the level of outrageousness required to support a claim for emotional distress. Rinehimer v. Luzerne County Community College, 372 Pa. Super. 480, 539 A.2d 1298, 1305 (Pa.Super.), appeal denied, 555 A.2d 116 (1988); Paul v. Lankenau Hospital, 375 Pa. Super. 1, 543 A.2d 1148, 1158-59 (Pa.Super. 1991), reversed on other grounds, 524 Pa. 90, 569 A.2d 346 (Pa. 1990). Compare Bowersox v. P.H. Glatfelter Co., 677 F. Supp. 307, 311-12 (M.D.Pa. 1988) (holding that sexual harassment by employer could be type of outrageous conduct which would support claim). Furthermore, plaintiff has not proffered, as required, any competent medical evidence to support his allegations of emotional distress. Williams v. Guzzardi, 875 F.2d 46, 51 (3d Cir. 1989); Kazatsky, 527 A.2d at 995; Abadie v. Riddle Memorial Hospital, 404 Pa. Super. 8, 589 A.2d 1143, 1146 (Pa.Super. 1991). Plaintiff's testimony that he was irritable, unable to sleep, and had marital problems after his suspension is insufficient evidence of injury to support recovery for intentional infliction of emotional distress. Accordingly, defendant's motion for summary judgment will be granted with regard to Count IV of plaintiff's complaint.
An appropriate order will follow.
Gustave Diamond, Chief Judge
Date: February 19, 1993
ORDER OF COURT
AND NOW, this 19th day of February, 1993, for the reasons stated in the opinion filed this day, IT IS ORDERED that:
1) Defendant's motion in limine to exclude evidence regarding the proceeding before and determination of the Commonwealth of Pennsylvania unemployment compensation referee (Document No. 12) be, and the same hereby is, GRANTED;
2) Defendant's motion to strike plaintiffs' cross motion in limine (Document No. 21) be, and the same hereby is, DENIED;
3) Plaintiffs' cross motion in limine to preclude the defendant from relitigating issues raised by it, litigated and decided in favor of the plaintiffs by the Commonwealth of Pennsylvania unemployment compensation referee (Document No. 18) be, and the same hereby is, DENIED;
4) Defendant's motion to strike Exhibit 86 and related paragraphs of plaintiffs' counter statement of material facts (Document No. 23) be, and the same hereby is, DENIED;
5) Defendant's motion for summary judgment (Document No. 15) be, and the same hereby is:
(a) DENIED as to Counts I through III,