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GREEN v. BRYANT

May 31, 1995

PHILLORIA GREEN
v.
WINSTON MURPHY BRYANT, JR., d/b/a/ MEDICAL & SURGICAL EYE ASSOCIATES



The opinion of the court was delivered by: J. WILLIAM DITTER, JR.DITTER

 Ditter, J.

 May 31, 1995

 The primary question in this case is whether Pennsylvania's public policy protects an at-will employee who is the victim of spousal abuse from discharge by her employer. For the reasons stated below, I find that it does not.

 I. FACTS

 Defendant, Dr. Winston Murphy Bryant, employed plaintiff, Philloria Green, from December 1992 through August 1993. Plaintiff asserts that during her last week of work, her estranged husband raped and severely beat her with a pipe at gun point. *fn1" She received medical treatment and returned to work shortly thereafter. Ms. Green informed another doctor in the office about the attack. The doctor informed defendant, who then terminated plaintiff's employment. Ms. Green asserts that Dr. Bryant told her that the discharge had nothing to do with plaintiff's performance at work, but was based solely upon her being the victim of a violent crime. *fn2" Plaintiff alleges that defendant retroactively terminated her health insurance so that none of her medical expenses were covered. She also alleges that she has suffered migraine headaches and post-traumatic stress disorder as a result of her being fired.

 Plaintiff's amended complaint alleges five causes of action. Count I, an ERISA fiduciary claim, derives from Dr. Bryant's cancellation of plaintiff's health insurance. Count II alleges a claim for wrongful discharge. Counts III and IV assert that defendant is liable, respectively, for negligent and intentional infliction of emotional distress. Count V (numbered incorrectly as a second count IV) alleges that defendant breached an implied covenant of good faith and fair dealing. Defendant has moved to dismiss counts II through V pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that they fail to state a claim upon which relief can be granted.

 II. PLAINTIFF'S STATE-LAW CLAIMS

 A. Wrongful Discharge

 Plaintiff asserts in count II that defendant wrongfully discharged her from employment in violation of Pennsylvania public policy. Plaintiff admits she was an at-will employee of Dr. Bryant's. The general rule in Pennsylvania is that an at-will employee may be dismissed with or without cause, for good reason, bad reason, or no reason. Clark v. Modern Group, Ltd., 9 F.3d 321, 327 (3d Cir. 1993). Some courts have recognized a narrow exception, "in only the most limited of circumstances," where discharge of an at-will employee would threaten clear mandates of public policy. Paul v. Lankenau Hosp., 524 Pa. 90, 569 A.2d 346, 348 (Pa. 1990) (citing Clay v. Advanced Computer Applic., 522 Pa. 86, 559 A.2d 917, 918 (Pa. 1989)). The cases in Pennsylvania where the public policy exception has been recognized all involve a constitutionally or legislatively established prohibition, requirement, or privilege; e.g., firing an employee who made a nuclear safety report required by law, not hiring someone whose criminal conviction had been pardoned, and firing an employee who was absent due to jury duty. Smith v. Calgon Carbon Corp., 917 F.2d 1338, 1343-44 (3d Cir. 1990) (state cases, citations omitted), cert. denied, 499 U.S. 966, 113 L. Ed. 2d 660, 111 S. Ct. 1597 (1991). In addition, terminated plaintiffs have been successful when fired for refusing to serve alcohol to an intoxicated patron, refusing to participate in lobbying, refusing to engage in antitrust violations, and refusing to take a polygraph test. Id. at 1344 (federal cases, citations omitted). In sum, the exception is most frequently applied when the discharge results from an employee's compliance with or refusal to violate the law, or where the employee did something he or she was privileged to do. Id. As the Third Circuit has stated, the public policy exception does not exist to protect the employee. Clark, 9 F.3d at 331-32. Rather, it protects society from public harm or vindicates fundamental individual rights. Id.

 Ms. Green argues that her dismissal violates dual public policies: protecting an employee's right to privacy and protecting victims of crime or spousal abuse. *fn3" In support of her first contention, plaintiff notes that the Third Circuit has recognized a strong policy favoring a right to privacy. Borse v. Piece Goods Shop, Inc., 963 F.2d 611 (3d Cir. 1992). There is little connection between Borse and this case. Borse involved an employee whose employment was terminated for refusing to submit to urinalysis screening and personal property searches conducted by her employer. Id. at 612. In this case, plaintiff states that she revealed to another employee, Dr. Brown, that she had been raped and severely beaten. There is no allegation that defendant initiated the conversation, required disclosure of the information, questioned plaintiff about her marital situation, inquired into personal or private details, or in any way sought to intrude upon plaintiff's privacy in a substantial and highly offensive manner. See Borse, 963 F.2d at 625. I find that defendant's discharge of plaintiff did not violate the public policy favoring a right to privacy.

 Plaintiff also argues that her discharge is in violation of Pennsylvania's policy to protect victims of crime and domestic abuse, as embodied in the state's criminal code, Protection from Abuse Act, 23 Pa. C.S.A. § 6101 et seq., and the establishment of the Crime Victim's Compensation Board, 71 P.S. § 180-7 et seq. The flaw in plaintiff's argument is that while these statutes provide certain procedures and protections, they do not thereby create a protected employment class. In the statutes to which plaintiff refers, the legislature included certain programs or safety measures, but excluded others. For example, the Protection from Abuse Act specifies that a defendant may be directed to pay a plaintiff for economic losses incurred as a result of the abuse. 23 Pa.C.S.A. § 6108(a)(8). It does not, however, say that a complainant is entitled to any kind of employment rights or benefits. Similarly, a crime victim may be eligible for compensation pursuant to 71 P.S. § 180-7.3, but the statute does not create employment rights or privileges. It might be a different case, and a closer question as to the public policy exception, if plaintiff alleged that she was discharged because she had applied for victim compensation or had sought a protective order. That, however, is not her allegation. Plaintiff was not discharged because she refused to violate the law, because she complied with the law, or because she exercised a right or privilege granted by the law. Therefore, in the absence of any indication that Pennsylvania has established a clear mandate that crime victims generally, or spousal abuse victims specifically, are entitled to benefits or privileges beyond those enumerated in the laws, I must conclude that plaintiff's dismissal was not in violation of public policy. Because plaintiff has not alleged facts sufficient to state a claim that her discharge from at-will employment was in violation of public policy, defendant's motion to dismiss count II must be granted.

 B. Negligent Infliction of Emotional Distress

 With regard to count III, defendant and plaintiff argue about whether plaintiff has sufficiently alleged physical harm. Plaintiff has alleged in her complaint that she suffered physical effects, specifically migraine headaches and post-traumatic stress disorder, as a result of the termination of her employment. The argument about whether the allegations of physical harm are adequate, however, begs the question of whether plaintiff has sufficiently alleged that defendant has engaged in negligent conduct. A plaintiff alleging negligent infliction of emotional distress ("NIED"), in the absence of allegations that he or she witnessed an accident injuring a close relative, must allege that he or she "suffered such distress as a result of a breach by a defendant of a distinct pre-existing duty of care, that is in essence an independent tort." Herbert v. Greyhound Lines, Inc., 1994 U.S. Dist. LEXIS 12712 at *12 (E.D. Pa. Sept. 8, 1994). While allegations of physical injury are necessary to state a claim, they are not, by themselves, sufficient to do so. Armstrong v. Paoli Mem. Hosp., 430 Pa. Super. 36, 633 A.2d 605, 609 (Pa. Super. 1993), appeal denied, 649 A.2d 666 (Pa. 1994). As the Supreme Court of Pennsylvania has pointed out, the first point of inquiry is whether the defendant owed plaintiff a duty of care. Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (Pa. 1986). One panel of the Superior Court of Pennsylvania implicitly found such a duty in an employee-employer context when it reversed a lower court's order sustaining preliminary objections to plaintiff's allegations of NIED. See Crivellaro v. Pennsylvania Power & Light Co., 341 Pa. Super. 173, 491 A.2d 207, 208, 210 (Pa. Super. 1985) (court focused on whether plaintiff had sufficiently pleaded physical injury). I do not read Crivellaro, however, as establishing that an employer owes a duty to an employee not to discharge her. The emotional distress alleged in Crivellaro involved not the firing of an employee, but rather, an employer's corralling an employee into a 30-day residential treatment program at a psychiatric facility. Id at 208. The employee sued both her employer and the facility, asserting that she had not received psychiatric counseling but instead "was subject to an intensive and abusive alcohol and drug detoxification program." Id. at 208-209. Ms. Green's situation is far removed from that of the plaintiff in Crivellaro, and I do not think that the higher courts of Pennsylvania would recognize a claim for NIED derived from an employer's discharging an employee. See Armstrong, 633 A.2d at 614 (other states have not recognized independent claim for NIED brought on by clumsy firing, notes that fired ...


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