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Angel Reyes and Gerald Leonardi v. Termac Corp. and Leo Steslow

August 15, 2012

ANGEL REYES AND GERALD LEONARDI
v.
TERMAC CORP. AND LEO STESLOW



The opinion of the court was delivered by: Elizabeth T. Hey, M.J.

MEMORANDUM AND ORDER

Defendants Termac Corp. and Leo Steslow have filed a motion for partial summary judgment, seeking judgment in their favor on the claim of Plaintiff Angel Reyes that he was terminated in violation of public policy (Count III of the Amended Complaint).*fn1 See Doc. 12. Mr. Reyes filed a response and Defendants filed a reply. See Docs. 15 & 20. I held oral argument on July 9, 2012, and the parties filed supplemental letters following the hearing. See Docs. 22 Exh A, 23.

I. FACTS*fn2

According to the Amended Complaint, Mr. Reyes began working for Termac in 2007 as a driver delivering materials and machinery to customers. See C.A. 12-1135 Doc. 3 ¶¶ 12, 14. Throughout his employment, Termac would dump industrial chemicals into the Philadelphia sewage system in violation of law, and Mr. Reyes complained about the propriety of this dumping in late February 2011 and on April 4, 2011. Id. ¶¶ 24-25, 38. Also, sometime after March 14, 2011, at the request of his pulmonary specialist in relation to swelling in his lymph nodes, Plaintiff asked Termac for the material safety data sheets ("MSDS") of the products to which he was exposed while working for Termac. Id.

¶¶ 32, 34. Defendants failed to provide the MSDS's to Mr. Reyes. Id. ¶ 33. Mr. Reyes again requested the MSDS's on April 4, 2011, to no avail. Id. ¶ 36. On April 8, 2011, Defendants fired Mr. Reyes allegedly for engaging in a verbal confrontation with a driver off site on April 6, 2011. Id. ¶ 39. Mr. Reyes claims in Count III that Defendants terminated him in violation of Pennsylvania's public policy for complaining about the industrial chemical disposal and his requests for the MSDS's. Id. ¶¶ 52-55.

II. STANDARD OF REVIEW

Summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.

The moving party has the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party has met its initial burden, the adverse party must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). "Speculation, conclusory allegations, and mere denials are insufficient to raise genuine issues of material fact." Boykins v. Lucent Techs., Inc., 78 F. Supp.2d 402, 408 (E.D. Pa. 2000). The evidence presented must be viewed in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983).

III. DISCUSSION

A. Failure to Properly Plead Defendants' first challenge to Count III is that it does not identify any specific

statute or regulation of the Commonwealth to establish a public policy that was violated by Reyes' termination. Instead, the Amended Complaint merely alleges that Reyes' discharge was motivated by his complaints about his employer's disposal of chemical waste into the public sewers and his request for the MSDS's regarding the chemicals to which Reyes was exposed. See C.A. 12-1135 Doc. 3 ¶¶ 52-54. Plaintiff identifies the public policy at issue in his response to Defendants' motion for summary judgment, alleging that his termination was in violation of the Clean Streams Law ("CSL") (referring to the disposal of chemical waste) and the Pennsylvania Worker and Community Right-to-Know Act ("PWCRA") and federal Occupational Safety and Health Act ("OSHA") (referring to the requests for the MSDS's). Thus, the initial question is whether Count III should be judged alone or in light of the additional allegations in Plaintiff's brief.

The Honorable Gene E.K. Pratter addressed a similar attack on a similarly worded complaint in Wetherhold v. Radioshack, 339 F. Supp.2d 670 (E.D. Pa. 2004), where the defendants argued that the pleading was insufficient to state a cause of action. After reviewing the liberal pleading requirements, Judge Pratter concluded that Wetherhold had sufficiently stated his claim.

[A]lthough Wetherhold has certainly been brief in his explanation of the public policy he claims have been violated, his pleading states unequivocally that his termination was a violation of public policy of the Commonwealth of Pennsylvania. Therefore, he is not relying on "a sole reference to a violation of federal law."

Id. at 678 (quoting McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 289 n.12 (Pa. 2000)). Guided by Judge Pratter's discussion and conclusion, I find that Plaintiffs have sufficiently plead a claim for termination in violation of public policy. Here, the operative allegation in the Amended Complaint is as follows:

Due to the unusually suggestive timing between Plaintiff Reyes' requests and his termination (four days), he avers his termination was motivated in substantial part by said complaint and/or request and was in violation of the public policy of Pennsylvania.

C.A. 12-1135 Doc. 3 ΒΆ 55. Like the plaintiff in Wetherhold, although Plaintiff did not cite the governing Pennsylvania law in his complaint, he clearly alleged that it is contrary to Pennsylvania public policy to terminate an employee for complaining about his employer's disposal of chemical waste and asking about the chemicals to ...


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