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Barbara Jordan v. Southeastern Pennsylvania


February 3, 2011


The opinion of the court was delivered by: Ludwig, J.


Ludwig, J. February 3, 2011

This is an employment discrimination case. Jurisdiction is federal question. 28 U.S.C. § 1331. The nine-count complaint alleges, inter alia, that plaintiff Barbara Jordan, a SEPTA employee, was disciplined and wrongfully terminated in retaliation for making complaints about race and sex discrimination.*fn1 Defendants*fn2 move to dismiss Counts Eight and Nine for failure to state a claim for which relief can be granted. For the following reasons, defendants' motion will be granted as to Count Nine and denied as to Count Eight.*fn3

According to Count Nine, plaintiff was "subjected to termination of her employment after asserting her rights under the Pennsylvania Worker's Compensation Act [in] violation of the public policy of the Commonwealth of Pennsylvania." Complaint, ¶ 64. Defendants move to dismiss because Pennsylvania law bars this claim: "An action for the tort of wrongful discharge is available only when the employment relationship is at will." Phillips v. Babcock & Wilcox, 503 A.2d 36, 355 (Pa. Super. 1986), citing Geary v. United States Steel Corp., 319 A.2d 174 (Pa. 1974).

In Phillips, the complaint also alleged that plaintiff was wrongfully discharged in retaliation for filing a worker's compensation claim, in violation of public policy. Summary judgment was granted to plaintiff's employer, holding that the tort did not apply to someone who was not an at-will employee by reason of being subject to a collective bargaining agreement. Id. at 37. The Superior Court's affirmance noted that plaintiff's recourse was embodied in the grievance process established by the employer and the union, and that strong public policy favored the parties' right to contract and militated against extending a wrongful discharge cause of action to non-at-will employees. Id. at 38.

Here, plaintiff, a SEPTA bus operator, is a member of the Transport Workers' Union of Philadelphia, Local 234. The applicable collective bargaining agreement provides that Union members may be disciplined or discharged for "just cause." Collective Bargaining Agreement, p.9, Article II, ¶ C(a)(1), Exhibit 1 to defendants' memorandum.*fn4 As a result, plaintiff was not an at-will employee, in that the presumption of an at-will employment relationship is rebutted upon a showing of "an agreement specifying that the employee will be discharged for just cause only." Helpin v. Trustees of University of Pennsylvania, 969 A.2d 601 (Pa. Super. 2009). Inasmuch as the tort may accrue only to at-will employees, plaintiff's claim is not actionable.

Plaintiff cites the Pennsylvania Supreme Court's decision in Shick v. Shirey, 716 A.2d 1231, 1232-33 (1998). However, in Shick, plaintiff was an at-will employee.

Count Eight purports to state a claim for violations of the Family Medical Leave Act. Defendants' objection is that the complaint lacks allegations that plaintiff requested leave under FMLA, and was entitled to FMLA protection. However, it is alleged that plaintiff was injured, took leave from employment, and was terminated while on leave. It cannot be said that the complaint does not "contain either direct or inferential allegations respecting the material elements necessary to sustain recovery under some viable legal theory," Haspel, supra, note 3, at *1, - namely, violations of FMLA. Defendants' motion as to Count Eight must be denied.


Edmund V. Ludwig, J.

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