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GANNON v. NATIONAL RAILROAD PASSENGER CORPORATION

May 27, 2004.

MICHAEL J. GANNON, Plaintiff,
v.
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.

  I. BACKGROUND

  For purposes of this Motion, we recount the facts as Plaintiff alleges them.

  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 Special Investigations.

  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 of duty.

  As directed, Plaintiff contacted Basara, who requested that they meet in mid-to late-January 2000 to discuss the payroll discrepancy.

  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 ...


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