United States District Court, E.D. Pennsylvania
May 27, 2004.
MICHAEL J. GANNON, Plaintiff,
NATIONAL RAILROAD PASSENGER CORPORATION, t/a AMTRAK, Defendant
The opinion of the court was delivered by: JAMES KELLY, Senior District Judge
MEMORANDUM AND ORDER
Presently before the Court is a Motion to Dismiss Counts I, V and VI
of Plaintiff's Complaint filed by Defendant National Railroad Passenger
Corporation, t/a Amtrak ("Defendant" or "Amtrak") seeking dismissal of
only the state law claims for wrongful termination and negligent and
intentional infliction of emotional distress filed by Plaintiff Michael
J. Gannon ("Plaintiff" or "Gannon") for failure to state a claim pursuant
to Federal Rule of Civil Procedure 12(b)(6). Plaintiff initiated suit in
this Court alleging that he was unlawfully terminated from employment as
a criminal investigator in Amtrak's Office of Inspector General following
his return from active military service, and asserts the following
federal and state law claims: Count I Wrongful Termination; Count
II Uniformed Services Employment and Reemployment Rights Act,
38 U.S.C. § 4301-4333 ("USERRA"); Count III Age Discrimination
in Employment Act, 29 U.S.C. § 621-634 ("ADEA"); Count IV
Federal Employers' Liability Act, 45 U.S.C. § 51-60 ("FELA"); Count V
Negligent Infliction of Emotional Distress; and Count VI Intentional
Infliction of Emotional Distress.
In the instant Motion, Defendant contends that Count I fails to state a
claim for which relief can be granted because Pennsylvania law does not
recognize a cause of action for wrongful termination of an at-will
employment relationship except in special circumstances not present here.
Defendant further contends that Counts V and VI fail to state a claim
because FELA preempts state law claims for negligent and intentional
infliction of emotional distress.
For the following reasons, Defendant's Motion to Dismiss Counts I, V
and VI is GRANTED IN PART and DENIED IN PART.
For purposes of this Motion, we recount the facts as Plaintiff alleges
Gannon was employed at-will as a criminal investigator by Amtrak's
Office of Inspector General from August 1989 until August 31, 2001,
working at Philadelphia's 30th Street Station. Plaintiff served in the
United States Marine Corps and the United States Air Force Reserves.
Plaintiff's time in military service is approximately thirty-four years.
While Plaintiff was employed full-time by Amtrak, he was also a
Reservist in the Air Force and was called to active duty on May 1, 1999 to serve in Kosovo during the conflict in the
Balkans in 1999. On or about May 2, 1999, Plaintiff reported for active
duty at Andrews Air Force Base. During his deployment in 1999, Plaintiff
served as a counter-intelligence agent with the Air Force Office of
Plaintiff timely notified Defendant of his activation for military
service in May 1999. Defendant had in place a payroll policy to cease
paying employees' salaries while those employees are activated for
military service. Despite Plaintiff's timely notice of activation for
military service, Defendant failed to enforce its own payroll policy.
Defendant continued to pay Plaintiff his salary for the entire period of
Plaintiff's deployment from May 1, 1999 to December 17, 1999.
When Plaintiff returned from active military service on December 22,
1999, supervisor Joseph O'Rourke ("O'Rourke") gave him a "Letter of
Instruction," which indicated that Defendant overpaid Plaintiff during
his tour of duty. During this encounter, O'Rourke also stated to
Plaintiff that the Air Force was not Plaintiff's primary employer, which
statement Plaintiff alleges to evidence prejudice against Plaintiff due
to his military service. The Letter of Instruction directed Plaintiff to
contact Defendant's finance manager, Thomas Basara ("Basara"), to arrange
for repayment of any wages that Amtrak paid to Plaintiff during his tour
As directed, Plaintiff contacted Basara, who requested that they meet in mid-to late-January 2000 to discuss the payroll
In August 2000, Amtrak unilaterally began to withhold wages from
Plaintiff in order to recover the funds which it paid Plaintiff during
his tour of duty. Plaintiff alleges that he has attempted in good faith
to reach a repayment arrangement with Defendant and, in that attempt, has
retained legal counsel to assist in the wage payment issue.
On or about November 29, 2000, Amtrak retained the National Archives
and Records Administration Office of the Inspector General to conduct an
investigation of Plaintiff in connection with the wage payment issue. The
results of the investigation were never disclosed to Plaintiff.
On August 31, 2001, Defendant terminated Plaintiff's employment.
Plaintiff remained unemployed from August 31, 2001 until May 21, 2002.
Plaintiff alleges that he experienced emotional distress and a
directly-related physical injury, specifically, the condition of high
blood pressure, as a result of the events leading up to the termination
of Plaintiff's employment.
On August 4, 2003, Plaintiff initiated this suit by filing a six-count
Complaint. Defendant now moves to dismiss Plaintiff's state law claims
for wrongful termination and negligent and intentional infliction of
emotional distress, which arguments we address in turn. II. STANDARD OF REVIEW
The purpose of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) is to test the legal sufficiency of a complaint.
Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). We
therefore accept all factual allegations in the complaint as true and
give the pleader the benefit of all reasonable inferences that can be
fairly drawn therefrom. Wisniewski v. Johns-Manvilie Corp.,
759 F.2d 271, 273 (3d Cir. 1985). We are not, however, required to accept
legal conclusions either alleged or inferred from the pleaded facts.
Kost, 1 F.3d at 183. In considering whether to dismiss a complaint,
courts may consider those facts alleged in the complaint as well as
matters of public record, orders, facts in the record and exhibits
attached to a complaint. Oshiver v. Levin, Fishbone, Sedan &
Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994). A court may dismiss
a complaint only if the plaintiff can prove no set of facts that would
entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46
(1957). III. DISCUSSION
A. Count I Wrongful Termination Claim
Pennsylvania law presumes that all employment is at-will end,
therefore, an employee may be discharged for any reason or no reason.
Luteran v. Loral Fairchild Corp., 688 A.2d 211, 214 (
Pa. Super. 1997). As a general rule, there is no common law cause of action
against an employer for termination of an at-will employment
While the presumption of at-will employment is an "extremely strong
one," an exception to this rule has been recognized "only in the most
limited of circumstances where the termination implicates a clear mandate
of public policy in this Commonwealth." McLaughlin v.
Gastrointestinal Specialists, Inc., 750 A.2d 283, 287 (Pa. 2000).
In order to set forth a claim for wrongful discharge, "a plaintiff must
allege that some public policy of this Commonwealth is implicated,
undermined, or violated because of the employer's termination of the
employee." Id. at 289. As enunciated by the Pennsylvania
Supreme Court, "[p]ublic policy of the Commonwealth must be just that,
the policy of this Commonwealth." Id.
Here, Plaintiff's wrongful discharge in violation of public policy
claim fails to reference any clearly mandated public policy of the
Commonwealth, except for an allegation that "Plaintiff was, at all times
relevant to this Complaint, both in a protected class of persons, specifically a person over age 40
protected by the [ADEA], and a Reservist in the United States Air Force
Reserve." (Compl. ¶ 36.) This allegation alone does not appear to
implicate any recognized public policy of the Commonwealth of
In response to Defendant's Motion, however, Plaintiff contends that it
is within the ambit of Pennsylvania courts to declare public policy on
non-controversial issues and, further, suggests that it should be the
public policy of the Commonwealth to protect the employment of military
reservists, who are also Pennsylvania residents, when they are called to
war. (Pl.'s Br. in Opposition to Def.'s Mot. to Dismiss at 7.) In support
of its legal argument that a Pennsylvania court may declare
what constitutes public policy, Plaintiff cites Mamlin v.
Genoe, 17 A.2d 407 (Pa. 1941), which generally discusses sources of
public policy, but does so outside of the wrongful termination context.
Indeed, the Pennsylvania Supreme Court has more recently refused to
recognize a claim for wrongful discharge in violation of public policy
where there is "no statute, constitutional premise, or decision from this
Court to support the proposition that federal administrative regulations,
standing alone, can comprise the public policy of this Commonwealth."
McLaughlin, 750 A.2d at 288. The court further held that "in
order to set forth a claim for wrongful discharge a Plaintiff must do
more than show a possible violation of a federal statute that implicates
only her own personal interest." Id. at 289.
Likewise, in this case, Plaintiff fails to direct the Court to any
Commonwealth pronouncement that promotes the policy of USERRA,*fn1 or
to any other pronouncement stating that a federal statute standing alone
can constitute the public policy of the Commonwealth. Accordingly,
Defendant's Motion to Dismiss Count I of Plaintiff's Complaint is
GRANTED, and Plaintiff's claim for wrongful discharge in
violation of public policy is DISMISSED.
B. Counts V and VI Infliction of Emotional Distress
Plaintiff asserts claims for negligent and intentional infliction of
emotional distress under both FELA and state common law. Defendant moves
for dismissal on the basis that both state law claims for emotional
distress are cognizable under FELA and, thus, preempted by FELA.
FELA provides, in pertinent part, that "[e]very common carrier by
railroad . . . shall be liable in damages to any person suffering
injury while he is employed by such carrier . . . for such injury or
death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such
carrier. . . ." 45 U.S.C. § 51. The United States Supreme Court
has recognized that claims for damages for negligent infliction of
emotional distress are cognizable under FELA. Consolidated Rail
Corp. v. Gottshall, 512 U.S. 532, 549-50 (1994). While the Supreme
Court has not expressed an opinion as to intentional infliction of
emotional distress claims, courts have recognized that such claims are
also cognizable under FELA. See e.g., Alien v. Nat'l R.R. Passenger
Corp., 90 F. Supp.2d 603, 613 (E.D. Pa. 2000) (citing to courts
that have permitted recovery for intentional torts under FELA);
Higgins v. Metro-North R.R. Co., 143 F. Supp.2d 353, 361
(S.D.N.Y. 2001) (collecting cases).
Defendant cites a number of cases in an attempt to support the
proposition that FELA applies to preempt Plaintiff's alleged state tort
claims arising out of the employment relationship. We remain unpersuaded
by Defendant's contention at this procedural juncture. For example,
Defendant offers Martin v. Warrington, Civ. A. No. 01-1178,
2002 U.S. Dist. LEXIS 3502 (E.D. Pa. Mar. 1, 2002), for the proposition
that state law claims are preempted by FELA and should be dismissed. Upon
closer review of that case, the court noted that the plaintiff stipulated
to dismissal of the state law claims subsequent to the filing of the
motion to dismiss, and, while the court granted the motion to dismiss,
there was no discussion of FELA's preemptive power over state law claims. Id. at *4. Defendant also offers Felton v.
Southeastern Pennsylvania Transportation Authority, 757 F. Supp. 623
(E.D. Pa. 1991), but that case merely states that FELA provides the
"exclusive source of recovery for employees of interstate railroads
injured or killed during the course of their employment," without
discussing the preemptive principles suggested by Defendant.
Id. at 626-27. Finally, Defendant offers Hartford Accident
& Indemnity Co. v. Motor Vehicle Cas. Co., 576 F. Supp. 604
(W.D. Pa. 1984), to support its contention, but that case, an insurance
subrogation action, merely states in its procedural history that a FELA
claim was earlier dismissed, again without any detailed discussion on
preemption. Id. at 607. None of these cases discuss FELA
preemption of state law claims for emotional distress arising in the
It is not entirely clear, then, that a plaintiff is always barred from
asserting state law claims for negligent and intentional infliction of
emotional distress, at the same time that he seeks recovery pursuant to
FELA, under the same facts. See generally. Alien v. Nat'l R.R.
Passenger Corp., 90 F. Supp.2d 603 (E.D. Pa. 2000); DeCesare
v. Nat'l R.R. Passenger Corp., Civ. A. No. 99-129, 1999 U.S. Dist.
LEXIS 16384 (E.D. Pa. Oct. 25, 1999) (disposing of both state law claims
and FELA claims for emotional distress at summary judgment stage of
Since we cannot conclude that state law claims for negligent and
intentional infliction of emotional distress are always preempted by FELA, as Defendant suggests, Defendant's Motion to Dismiss
Counts V and VI is DENIED.
For these foregoing reasons, Defendant's Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) is GRANTED IN PART and DENIED IN
PART to the extent that Count I of Plaintiff's Complaint, which asserts a
state law claim for wrongful termination in violation of public policy,
is DISMISSED. All other counts of Plaintiff's Complaint remain before the
AND NOW, this day of May, 2004, in consideration of the
Motion to Dismiss Counts I, V and VI filed by Defendant National
Railroad Passenger Corporation, t/a Amtrak ("Defendant") (Doc. No. 4),
the Response in Opposition filed by Plaintiff Michael J. Gannon
("Plaintiff") (Doc. No. 6), and Defendant's reply thereto (Doc. No. 8),
IT IS ORDERED that Defendant's Motion to Dismiss Counts I, V
and VI is GRANTED IN PART and DENIED IN PART to the
extent that Count I of Plaintiff's Complaint, which asserts a claim for
wrongful termination in violation of public policy, is
DISMISSED. All other counts remain before the Court.