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July 29, 1999


The opinion of the court was delivered by: D. Brooks Smith, District Judge.


This is a state law wrongful discharge case in which plaintiffs, two former supervisors for the American Red Cross in Johnstown, Pennsylvania, contend that their employer unfairly and unlawfully terminated them because they chose to keep the confidence of their subordinates when those subordinates stated they had been subjected to improper sexual behavior by male employees. Defendant, for its part, has filed a motion to dismiss under Fed. R.Civ.P. 12(b)(6), asserting that it fired both plaintiffs because they willfully disregarded its policy that all incidents of alleged sexual harassment must be formally reported to Red Cross management. Because I conclude that plaintiffs' dismissal does not fit within the very narrow public policy exception to the employment-at-will doctrine recognized in Pennsylvania, I will grant the motion and dismiss the complaint with prejudice.


Viewed in the light most favorable to plaintiffs and giving them every available inference from the facts as pleaded, it appears that both plaintiffs were 58-year-old supervisors*fn1 for the Johnstown Red Cross, when, in 1997, they both overheard subordinates discussing incidents that could potentially be construed as sexual harassment. Both employees stated that they had been asked out on a date or otherwise propositioned by a married, male co-worker. When plaintiffs inquired further, both subordinates asked that the matter be kept confidential and not dealt with officially because the subordinates wished to handle the matters themselves. Plaintiffs complied with this request because neither supervisor believed that the male employees' conduct was serious enough to constitute harassment. Their decision to keep these confidences, however, contravened Red Cross policy that all incidents of sexual harassment must be reported.

Several months later, one of the employees related the details of her incident to plaintiff Cavallucci in greater detail, prompting Cavallucci this time to refer the matter to the Collections Director as a serious incident of sexual harassment. Aster the incident was reported, both plaintiffs were dismissed for violating Red Cross policy in having failed to report an incident of sexual harassment; neither has since found comparable work.

Plaintiffs then filed suit in the Court of Common Pleas of Cambria County, alleging only wrongful discharge under state common law. Defendant, which is a federally chartered corporation, timely removed the action to this court under 36 U.S.C. § 300105(a)(5) (formerly 36 U.S.C. § 2), which provides original jurisdiction in federal district court over any action in which the Red Cross is a party. See American Nat'l Red Cross v. S.G., 505 U.S. 247, 112 S.Ct. 2465, 120 L.Ed.2d 201 (1992). The matter is now fully briefed and ripe for adjudication.


A motion to dismiss cannot be granted unless the allegations in the complaint taken as true fall to state any claim upon which relief can be granted. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In ruling upon a motion to dismiss, a district court must accept as true all facts alleged in the complaint, and view them in the light most favorable to the plaintiff. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). A court "need not credit a complaint's `bald assertions' or `legal conclusions,'" In re Burlington Coat Factory Securities Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997) (quoting Glassman v. Computervision Corp., 90 F.3d 617, 628 (1st Cir. 1996)).


It is, of course, axiomatic under Pennsylvania law that all employment is presumed to be at will, as a consequence of which an employee may be discharged "with or without cause, at pleasure, unless restrained by some contract."*fn2 Shick v. Shirey, 552 Pa. 590, 716 A.2d 1231, 1233 (1998); Luteran v. Loral Fairchild Corp., 455 Pa. Super. 364, 688 A.2d 211, 214 (1997), alloc. denied, 549 Pa. 717, 701 A.2d 578 (1997); see Novosel v. Nationwide Ins. Co., 721 F.2d 894, 896 n. 2 (3d Cir. 1983) (quoting Payne v. Western & Atl. R.R. Co., 81 Tenn. 507, 518-19 (1884) (employee may be discharged for good cause, bad cause or no cause at all), overruled on other grounds, Hutton v. Watters, 132 Tenn. 527, 179 S.W. 134, 138 (1915)). "An exception to this rule has been recognized in the most limited of circumstances, where the discharge of an at-will employee would threaten clear mandates of public policy." Kroen v. Bedway Security Agency, Inc., 430 Pa. Super. 83, 633 A.2d 628, 632 (1993); accord Neal v. Altoona Hosp., 38 Pa. D. & C.3d 599, 602-03, 1985 WL 5667 (1985) (Smith, J.). This tort of wrongful discharge, see Woodson v. AMF Leisureland Ctrs., Inc., 842 F.2d 699, 701 (3d Cir. 1988),*fn3 can be established only when "the employee . . . point[s] to a clear public policy articulated in the constitution, in legislation, an administrative regulation, or a judicial decision." Hunger v. Grand Cent. Sanitation, 447 Pa. Super. 575, 670 A.2d 173, 175 (1996). That policy, moreover, "must be applicable directly to the employee and the employee's actions. It is not sufficient that the employer's actions toward the employee are unfair." Id. at 175-76.*fn4

Thus, the courts applying Pennsylvania law have allowed suits for wrongful termination on public policy grounds only when the dismissal was based itself on an unlawful ground or otherwise subverted the law as recognized in this Commonwealth, for example by punishing plaintiff for exercising rights or fulfilling duties granted or imposed by statute. See Woodson, 842 F.2d at 702 (plaintiff fired for refusing to unlawfully serve alcohol to intoxicated customer); Shick, 716 A.2d at 1231 (plaintiff discharged for filing workers' compensation claim); Highhouse v. Avery Transp., 443 Pa. Super. 120, 660 A.2d 1374, 1378 (1995) (plaintiff dismissed for filing unemployment compensation claim); Kroen v. Bedway Security Agency, 430 Pa. Super. 83, 633 A.2d 628, 633 (1993) (plaintiff terminated for refusing to take polygraph test, when employer's use of such test was forbidden by statute); Reuther v. Fowler & Williams, Inc., 255 Pa. Super. 28, 386 A.2d 119, 120 (1978) (plaintiff dismissed for complying with jury duty obligation); see generally Neal, 38 Pa. D. & C.3d at 602, 604 (reviewing grounds for exception). Instantly, while plaintiffs may have reasonably felt a moral or social duty to do so, there was no legal right or obligation for plaintiffs to keep the confidences of their subordinates; thus, these cases are inapposite.

At least one court, however, has held that an employee's right under the First Amendment to express, or refrain from expressing, a political opinion will establish the public policy exception to the at-will rule. In Novosel, plaintiff was terminated when he refused to participate in his employer's lobbying campaign to repeal Pennsylvania's no-fault insurance law and privately expressed opposition to the employer's political position on that legislation. 721 F.2d at 896. The court, in upholding plaintiff's wrongful discharge claim, opined "that an important public policy is . . . implicated whenever the power to hire and fire is used to dictate the terms of employee political activities." Id. at 900. Novosel, it should be noted, has not been given an expansive interpretation in the sixteen years after it was decided, see Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 620 (3d Cir. 1992); Lee v. Wojnaroski, 751 F. Supp. 58, 62 (W.D.Pa. 1990) (Smith, J.).

It might be argued from Novosel that an employee has the right either to speak or to refrain from speaking, and that a court should consider defendant's punishing plaintiffs for keeping the confidences of their subordinates as an actionable breach of that right, in violation of public policy. While such an argument might have some surface appeal, it cannot be successfully maintained.

In Novosel, although the employer was not a state actor against which the employee could assert any direct First Amendment rights, the employee in that case chose not to parrot his employer's position on an issue of public concern by simply not speaking out as the employer had requested. The court was able to find a breach of public policy based on the employee's constitutional interest in speaking out — or in that case, not speaking out — as a citizen. Here, in contrast, plaintiffs chose not to speak about a purely internal, workplace matter, and in direct contravention of Red Cross policy. Such "speech" is simply not an interest that the public policy exception to the at-will rule can protect. Cf. Connick v. Myers, 461 ...

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