The opinion of the court was delivered by: Judge Nora Barry Fischer
Plaintiff John Pekar ("Pekar") has sued his former employer, Defendant United States Steel Corporation ("Defendant"),*fn1 for discrimination pursuant to the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 621, et seq., the Pennsylvania Human Relations Act ("PHRA"), 43 Pa C.S. § 951, et seq., and for wrongful discharge.*fn2 (Docket No. 20). For his ADEA and PHRA claims, Pekar alleges that he was discharged because of his age, 50, and because Defendant would economically benefit by terminating him due to his participation in a defined benefit pension plan.*fn3 (Docket No. 20 at 1, 7-8). For his wrongful discharge claim, Pekar avers that he was fired for refusing to perform a task as directed by a supervisor based his own perceived safety and efficiency concerns. (Docket No. 20 at 10-11). This matter is before the Court on Defendant's Motion to Dismiss Pekar's Amended Complaint under Rule 12(b)(6), or in the alternative, for Summary Judgment pursuant to Rule 56 (Docket No. 25), in which Defendant argues that Pekar has failed to sufficiently plead an ADEA claim, his PHRA claim fails because it was already dismissed, and his wrongful discharge claim fails because he is not an at-will employee. (Docket No. 24 at 2-3). For the reasons discussed herein, Defendant's Motion (Docket No. 24) is GRANTED.
Pekar, a resident of the Borough of Manor, Westmoreland County, Pennsylvania, was hired by Defendant, a Pennsylvania corporation, on April 17, 1977 as a Bricklayer Helper/Laborer. (Docket No. 20 at ¶¶ 2-3, 5). Pekar avers that throughout his employment with Defendant, he met applicable job qualifications and performed his job in a manner that met Defendant's expectations. (Id. at ¶ 9). On August 15, 2008, Pekar claims that he and his co-worker, Michael Diehl, were instructed by their immediate supervisor, Mark Cooke, to change the "F South Oxygen hose" (the "hose") with other co-workers. (Id. at ¶ 10). For this task, Cooke advised Pekar and Diehl that it might be necessary to alter the gaskets on the hose, however, they refused to make the requested alteration because to do so would violate written instructions from the manufacturer. (Id. at ¶¶ 11-13). Pekar alleges that Cooke thereafter determined that the gasket did not need to be altered. (Id. at ¶ 14).
Pekar claims that when he and Diehl went to change the hose, and after they removed the cardboard covering, they saw an object immediately inside the opening of the hose. (Id. at ¶¶ 23-26). Pekar avers that the object appeared to be a cloth rag and that he "never touched the object." (Id. at ¶¶ 27-28). Cooke was approximately 15 to 20 feet away from the hose when the covering was removed and Pekar claims that he immediately called Cooke over to show him the object in the hose. (Id. at ¶¶ 29-30). Cooke then contacted Lee Mott, the Senior Process Leader, and requested that he come to the maintenance area, where Diehl and Pekar were, with his camera to take photographs of the hose and the object inside of it. (Id. at ¶¶ 31-32). Upon being instructed to do so, Diehl and Pekar then put the cardboard covering back on the hose, with the object still inside, and placed the box with the hose back in the maintenance area. (Id. at ¶¶ 33-34). The hose was then removed by the "parts people" and another hose was brought in to be installed. (Id. at ¶ 35). Pekar claims that he and Diehl were required to work overtime to complete the installation of the hose. (Id. at ¶ 37). Prior to doing so, Diehl and Pekar made sure that there were no objects inside the new hose; and the installation was successfully completed on August 15, 2008. (Id. at ¶¶38-39). After the installation, Pekar then went home at the approval of Cooke. (Id. at ¶40).
Pekar returned to work on his next regularly scheduled day, August 17, 2008, and nothing was said to Pekar that day about the incident with the rag. (Id. at ¶ 41). After reporting to work on August 18, 2008, Pekar states that he was advised by his supervisor, Lee Mott, that he was being escorted off of the property as a result of the situation concerning the object in the hose. (Id. at ¶¶ 44-46). At first, Pekar states that he was not sure as to what Mott was referring but that Mott advised him that there was a video camera, and "it shows all." (Id. at ¶¶ 47-48). Contrary to Mott's assertions, Pekar avers that he did not place the foreign object in the hose. (Id. at ¶ 49). However, he received a notice that he was being disciplined for the following:
(1) Case # 08063 Sabotage of company equipment balance of turn plus four day suspension "Justice and Dignity" will not apply this slip will run concurrently with the discipline received in slip # 08064.
(2) Case # 08064 Contamination of company equipment balance of the turn plus four day suspension "Justice and Dignity" will not apply and this slip will run concurrently with the discipline slip above # 08063.
Id. at ¶ 50). It is not averred whether Pekar did or did not serve the suspension referenced above; rather, he claims that Defendant advised him on August 22, 2008 that he was discharged from his position. (Id. at ¶ 51).
For his ADEA and PHRA claims, Pekar alleges that but for his age, 50, he would not have been discharged and that his discharge was motivated by Defendant's desire to reduce the retirement benefits owed to Pekar. (Docket No. 20 at ¶¶ 53-55). Specifically, Pekar avers that due to the length of his employment with Defendant, upon his retirement he would have been entitled to a defined benefit pension.*fn4 (Id.). According to Pekar, Defendant would benefit economically by replacing him with an individual who is entitled to only a defined contribution plan,*fn5 as more recently hired employees are only eligible to participate in a defined contribution plan. (Id. at ¶¶ 56-57). Pekar claims that once Defendant's obligation to a retired employee, who is a participant in a defined benefits plan, "has been ascertained," Defendant will have access to whatever funds remain in that plan which are not otherwise required to fund obligations to the particpant. (Id. at ¶ 59). Relative to his ADEA claim, Pekar filed an administrative charge with the EEOC and the PHRC on November 4, 2008, and received a right to sue letter from EEOC on March 30, 2009. (Id. at ¶¶ 60-62). He initiated this lawsuit on June 26, 2009. (Docket No. 1).
As to his wrongful discharge claim, Pekar avers that on July 3, 2006, Glenn Reed, a Maintenance Process Leader, directed him and co-worker, Ron Vorassi*fn6 to replace a cable on a crane. (Docket No. 20 at ¶ 70). For this task, Reed wanted Pekar and Vorassi to use a manlift, however, they wanted to do the repairs from the top of the crane and not use a manlift because they were "concerned in good faith about safety, and refused to do the job as directed." (Id. at ¶¶ 71-73). After Pekar and his co-worker left the work site, Pekar alleges that a "JUM Safety Representative"*fn7 and a Senior Process Leader visited the site, after which Pekar and Vorassi were told to go home. (Id. at ¶¶ 74-75). Pekar further alleges that during the four to five years prior to his discharge, he made repeated suggestions as to how jobs could be performed more safely and efficiently, but that these suggestions were ignored. (Id. at ¶¶ 76-77). Pekar claims that he was discharged because of his refusal to perform a job due to safety concerns, and because of prior suggestions regarding how jobs could be done more safely. (Id. at ¶¶ 78-79). He further states in his Amended Complaint that termination of an at-will employee for refusing to do a job because of safety concerns and for making suggestions regarding the safety of other jobs is a violation of public policy. (Id. at ¶ 80). For his claims, Pekar seeks damages in the form of loss of income from the date of his discharge and into the future, loss of health insurance and other fringe benefits, damages for emotional distress and punitive damages. (Id. at ¶¶ 64, 82).
Pekar and his wife, Jan Pekar, initiated this action on June 26, 2009 with the filing of their Complaint against Defendant, alleging claims under the ADEA and the PHRA, and for wrongful discharge and loss of consortium.*fn8 (Docket No. 1). Defendant filed a Motion to Dismiss the Complaint under Rule 12(b)(6) and/or Rule 56 on September 29, 2009. (Docket No. 7). In their response filed on October 12, 2009 (Docket No. 12), while Pekar did not address the motion as it related to Pekar's ADEA claim, Pekar argued the merits of a claim under the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12101, et seq., even though he had not pled such a claim in his Complaint. (See Docket No. 1). Additionally, Pekar conceded that his PHRA claim was time-barred, Jan Pekar agreed to withdraw her loss of consortium claim, and Pekar requested leave to amend his claims. (Docket No. 12 at 6-7). As a result, on October 13, 2009, Pekar's PHRA claim and Jan Pekar's loss of consortium claims were dismissed and Pekar was ordered to file an Amended Complaint on or before November 13, 2009, thereby terminating, as moot, Defendant's motion to dismiss. (Docket No. 13).
In the interim, the Court held a case management conference with counsel for the parties on October 29, 2009 and set down deadlines for fact discovery and for the completion of ADR. (Docket Nos. 17, 18, and 19). On November 13, 2009, Pekar filed his Amended Complaint (Docket No. 20) setting forth claims under the ADEA and the PHRA, and a pendent state law claim for wrongful discharge. Defendant filed the instant Motion to Dismiss the Amended Complaint, or in the alternative, for Summary Judgment and Brief in Support on December 3, 2009. (Docket Nos. 24 and 26). In support of the motion, Defendant attached the following: (1) Diehl's PHRA Charge of Discrimination (Docket No. 26-1); (2) Diehl's EEOC Right to Sue Letter (Docket No. 26-2); (3) the affidavit of Michael A. Stehura, the Manager of Retired Employee Services for Defendant and Carnegie Pension Fund (Docket No. 26-3); (4) the collective bargaining agreement between Defendant and the United Steelworkers of America (Docket No. 26-4); and (5) the arbitration award from Pekar's union grievance (Docket No. 26-5).
On December 28, 2009, Pekar filed his Brief in Opposition; in said brief, Pekar again argued the merits of an ADA claim and his claim for wrongful discharge, while he did not respond to Defendant's argument for dismissal of his ADEA or PHRA claims. (Docket No. 27). Defendant filed its Reply to Pekar's Brief in Opposition on January 7, 2010, arguing that Pekar waived his ADEA and PHRA claims by his failure to respond to Defendant's arguments relating to same.*fn9 (Docket No. 28). On January 14, 2010, Pekar filed a corrected Brief in Opposition as an errata on the docket (Docket No. 31), in which Pekar argues the merits of his ADEA claim. (Id. at 4-7). The next day on January 15, 2010, Defendant filed a motion for leave to file an amended reply brief, which motion the Court granted giving Defendant until January 22, 2010 to file ...