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Daniel W. Mcalee v. Independence Blue Cross

June 27, 2011


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


Presently before the Court is the Motion of Defendant Independence Blue Cross to Dismiss Count II of the Complaint of Plaintiff Daniel W. McAlee pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Motion is granted.


This action centers upon alleged employment discrimination by Defendant Independence Blue Cross against Plaintiff Daniel McAlee on the basis of his military service in the U.S. Army Reserves. According to the facts set forth in the Complaint, Plaintiff began working for Defendant as an entry-level associate in the Self-Funded Billing group of the Accounting and Finance Department in approximately January of 2009. (Compl. ¶ 12.) While working in Self-Funded Billing, Plaintiff received pay raises, promotions, and other benefits due to good work performance and length of employment. (Id. ¶ 13.) Based on this positive performance, he eventually attained a position as a Level III Senior Financial Analyst. (Id.)

In early March, 2008, Plaintiff notified Defendant that he had received orders to report to active duty with the Reserves on April 12, 2008. (Id. ¶ 14.) His last day of work was on or about April 10. (Id. ¶ 15.) On or about April 12, Plaintiff reported for pre-mobilization training with his Army Reserve Unit in Fort Dix, New Jersey. (Id. ¶¶ 15-16.) He departed for Kuwait en route to Iraq on June 12, 2008. (Id. ¶ 17.) On approximately June 15, 2009, Plaintiff was released from active duty with an "honorable" character of service. (Id. ¶ 18.) Upon his return to work in early July, 2009, Plaintiff met with Mr. Brian McGroarty, whom Defendant had hired as a supervisor in Self-Funded Billing approximately one month before Plaintiff left for premobilization training. (Id. ¶ 19.) At this meeting, Plaintiff and McGroarty discussed job-related expectations and responsibilities, and new policies and procedures. (Id. ¶ 20.)

According to Plaintiff, although his title, pay, and benefits remained the same as before he went on active duty, his duties and responsibilities changed significantly upon his return. (Id. ¶ 22.) Prior to his leave for active duty, "approximately two-thirds of his job responsibilities included data analysis, consistent with his duties as a senior-level analyst." (Id. ¶ 23.) Such duties included "compiling, summarizing, and distributing customer data for nine (9) associate analysts in the department, reconciliation against the company's General Ledger, and attending higher-level meetings." (Id.) When he returned to work, his role was downgraded to entry-level billing duties; he was assigned more accounts, but with no data responsibilities. (Id. ¶ 24.)

In late September or early October of 2009, Mr. McGroarty informed Plaintiff that if he made one more error in his work, he would be placed on probation and on the company's Corrective Action Plan for six months. (Id. ¶ 25.) Pursuant to new department policy instituted by McGroarty while Plaintiff was overseas, employees were placed on the Corrective ActionPlan if they exceeded their number of allowable errors -- twelve per year for Level III Senior Financial Analysts and twenty-four per year for Level II Analysts. (Id. ¶ 26.) Mr. McGroarty informed Plaintiff that he had prorated Plaintiff's number of allowable errors. (Id.)

In late November or early December of 2009, Plaintiff was placed on the Corrective Action Plan for exceeding his number of allowable errors on work he submitted to Mr. McGroarty. (Id. ¶ 27.) The Plan required Plaintiff to meet with McGroarty weekly to discuss his progress. (Id. ¶ 28.) On or about March 2, 2010, Plaintiff met with Mr. McGroarty and Mr. Harold Hunter, the manager of Self-Funded Billing, for his shortened annual review, covering Plaintiff's employment from July 2009 to December 2009. (Id. ¶ 30.) During the review, Mr. Hunter gave Plaintiff a rating of "Progressing," which was one step below "At Expectations." (Id. ¶ 31.) Plaintiff avers that this was his first review below "At Expectations" in his eleven years with the company. (Id. ¶ 32.) He alleges that his review was a "direct and proximate result of the internal department policies" Mr. McGroarty instituted while Plaintiff was serving overseas, and that McGroarty's error system was "arbitrary and subjective." (Id. ¶¶ 33-34.) According to Plaintiff, he often "did not know what conduct would lead to a reprimand and what conduct was permitted," and his alleged errors were "sometimes generated by glitches in Defendant's databases and 'semi-automated' systems." (Id. ¶¶ 34-35.) He asserts that it was "not reasonable for McGroarty to assess Plaintiff's skills after supervising him for only a short period of time when Plaintiff was handling only basic billing responsibilities and no Senior-level data analysis." (Id. ¶ 36.) Similarly, he avers that his manager, Mr. Hunter, "had limited dealings with Plaintiff and did not have day-to-day knowledge of Plaintiff's job duties and performance." (Id. ¶ 37.)

On or about March 30, 2010, Plaintiff "awoke with cold-and-flu-like symptoms and called McGroarty's extension." (Id. ¶ 38.) When Mr. McGroarty and Mr. Hunter returned Plaintiff's call, they informed him he was being terminated. (Id. ¶ 39.) Plaintiff alleges that Defendant's new and arbitrary discipline and termination policies discriminated against him on the basis of his military service. (Id. ¶¶ 40-55.) He further alleges that Defendant improperly failed to re-employ him at an equivalent position upon his return from leave, and that he was terminated without good cause. (Id.) On January 10, 2011, he commenced the present action, alleging violations of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301 - 4333 (Count I), and wrongful discharge in tortious violation of public policy pursuant to the Pennsylvania Military Affairs Act, 51 Pa. C.S.A. §§ 7301 et seq. (Count II). Defendant moved to dismiss Count II on March 14, 2011, and Plaintiff filed a Response on April 4, 2011. The Court now considers Defendant's Motion.


Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6); see alsoHedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). Federal Rule of Civil Procedure 8 does not call for detailed factual allegations; rather, it requires a short and plain statement of the claim showing that the pleader is entitled to relief. FED. R. CIV. P. 8; Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Further, the court must "accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

The Supreme Court has made clear, however, that "[t]hreadbare recitals of the elementsof a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Instead, the plaintiff must offer "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. To do so, the plaintiff must show "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556-57); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (adopting Iqbal's standards).


Whether Plaintiff has Stated a Valid Claim for Tortious Interference with Public Policy Under Pennsylvania law, employers may terminate at-will employees with or without cause. Hicks v. Arthur, 843 F. Supp. 949, 956 (E.D. Pa. 1994) (citing Freeman v. McKellar, 795 F. Supp. 733, 741 (E.D. Pa. 1992); Paralegal v. Lawyer, 783 F. Supp. 230, 230 (E.D. Pa. 1992); Paul v. Lankenau Hosp., 569 A.2d 346, 348 (Pa. 1990)). An exception exists, however, when an employee has been terminated in violation of a "significant, clearly mandated public policy." Id. at 957 (citing Brown v. St. Luke's Hosp., 816 F. Supp. 342, 344 (E.D. Pa. 1993); Freeman, 795 F. Supp. at 741); see also Geary v. United States Steel Corp., 319 A.2d 174 (Pa. 1974). In Count II, Plaintiff alleges that Defendant violated a "clear and specific public ...

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