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Eileen Mcguire v. Palmerton Hospital and Lois Richards (In Her Individual and Professional Capacity

November 13, 2012

EILEEN MCGUIRE, PLAINTIFF,
v.
PALMERTON HOSPITAL AND LOIS RICHARDS (IN HER INDIVIDUAL AND PROFESSIONAL CAPACITY), DEFENDANTS.



The opinion of the court was delivered by: Judge Richard P. Conaboy

MEMORANDUM

Here we consider Defendants Palmerton Hospital and Lois Richards' Motion to Dismiss (Doc. 9) filed on October 1, 2012. With this motion, Defendants seek dismissal with prejudice of all claims in Plaintiff's Second Amended Complaint (Doc. 7) which Plaintiff filed on September 19, 2012. Defendants filed a supporting brief (Doc. 10) with the motion. Plaintiff filed Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. 11) on October 17, 2012. With the filing of Defendant's reply brief (Doc. 13) on October 31, 2012, this motion became ripe for disposition. For the reasons discussed below, Defendants' Motion is granted in part and denied in part.

I. Background*fn1

Palmerton and Plaintiff discussed hiring Plaintiff as a CT Technologist in 2008. (Doc. 11 at 1.) Plaintiff, Defendant Richards, and other employees of Palmerton negotiated the terms of Plaintiff's employment. (Id.) Ordinarily, CT Technologists work pre-assigned shifts, work additional shifts periodically as needed, and perform "on-call" services. (Id. at 2.) For "on-call" services, the employee must report to Palmerton within thirty (30) minutes of the call. (Id.) Plaintiff lived more than thirty (30) minutes from Palmerton. (Id.) Plaintiff expressly conditioned her acceptance of employment at Palmerton on having no "on-call" assignments. (Id.) Otherwise, she agreed to work any shifts needed. (Id.) Defendants agreed to this arrangement and hired Plaintiff on October 13, 2008, as a "No-Call" CT Technologist, with Defendant Richards negotiating terms of the hire. (Id.)

On numerous occasions through 2010 and 2011, Defendant Richards (Plaintiff's supervisor (Doc. 7 ¶ 5)) and Sylvia Goral, Director of Human Resources at Palmerton, ordered Plaintiff to work on the "on-call" schedule. (Id.) They told Plaintiff that if she did not report for the on-call assignments, she would be terminated for "job abandonment." (Id.) Plaintiff protested but took the on-call shifts. (Id.)

Plaintiff and Defendant Richards had a disagreement on June 30, 2011, regarding an order for a CT scan on a patient whose weight exceeded the limit permitted for the CT table at Palmerton. (Doc. 7 ¶ 29.) Plaintiff recommended the scan be performed at another hospital where the CT table had a higher weight threshold which could accommodate the patient. (Id.) Defendant Richards eventually ordered the scan for the other hospital. (Id.)

On July 19, 2011, Defendant Richards and another Palmerton management employee brought Plaintiff into a meeting. (Doc. 7 ¶ 44.) In the meeting, Defendant Richards "accused Plaintiff of 'refusing to perform a scan,' of 'canceling a CT order,' and 'sending a patient to another facility,'" accusations which Plaintiff states Defendant Richards knew were false. (Id. ¶¶ 45-46.) Plaintiff also avers that Defendant Richards accused her of using profanity, an accusation Plaintiff denies. (Id. ¶ 47.) Defendants terminated Plaintiff on July 20, 2011. (Id. ¶ 48.)

Plaintiff's Second Amended Complaint also contains numerous assertions regarding Defendants ordering Plaintiff to engage in "illegal and unethical healthcare practices." (Doc. 7 ¶¶ 19-29.) Plaintiff avers that these include violations of the following: Occupational Health and Safety Act ("OSHA"), Nuclear Regulatory Commission Regulations; Pennsylvania Department of Environmental Protection regulations; American Registry of Radiologic Technology ("ARRT") statutory provisions and Code of Ethics; Pennsylvania Professional Nursing Law; and Pennsylvania Health and Safety Code. (Id.)

Defendants removed this case from the Court of Common Pleas of Monroe County, Pennsylvania, on September 5, 2012. (Doc. 1.)

Plaintiff had filed a complaint in that court on March 7, 2012. (Doc. 1 ¶ 1.) On April 5, 2012, Defendants filed a Notice of Removal in the United States District Court for the Eastern District of Pennsylvania, docketed as Case Number 2:12-CV-01718. (Id. ¶ 2.) Plaintiff then filed a motion to remand, which the Eastern District Court granted, remanding the case to the Court of Common Pleas of Monroe County. (Id. ¶ 3.)

Plaintiff filed an Amended Complaint on August 17, 2012, adding a claim for age discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"). (Doc. 1 ¶ 4.) Defendants then filed the Notice of Removal removing the case to this Court on September 5, 2012, asserting original jurisdiction over Plaintiff's ADEA claim and supplemental jurisdiction over Plaintiff's remaining claims. (Doc. 1 ¶ 13.)

As noted above, Plaintiff filed her Second Amended Complaint (Doc. 7), which is the subject of the pending motion to dismiss, on September 19, 2012. The Second Amended Complaint contains five counts: Count I - Breach of Contract against both Defendants; Count II - Wrongful Termination against both Defendants; Count III -Violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. - Disparate Treatment against both Defendants; Count IV - Violation of the Pennsylvania Human Relations Act, 43 Pa. C.S. § 951 et seq. against both Defendants; and Count V - Aiding and Abetting Acts of Discrimination Pursuant to 43 Pa. C.S. § 955(e) against both Defendants. (Doc. 7 at 14-22.)

II. Discussion

A. Motion to Dismiss Standard

In a motion to dismiss for failure to state a claim, the defendant bears the burden of showing that no claim has been presented. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

When reviewing a complaint pursuant to a defendant's motion to dismiss for failure to state a claim filed under Federal Rule of Civil Procedure 12(b)(6), the court does so in the context of the requirement of Federal Rule of Civil Procedure 8(a)(2) which requires only "a short and plain statement of the claims showing that the pleader is entitled to relief." The "short and plain statement" must be sufficient to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated on other grounds by Bell Atlantic Corp. v. Twombly, 550 U.S. 433 (2007). Twombly confirmed that more is required than "labels and conclusion, and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation")). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all allegations in the complaint are true (even if doubtful in fact)." 550 U.S. at 555 (citations omitted).

In McTernan v. City of York, 577 F.3d 521, 530 (3d Cir. 2009), the Third Circuit Court of Appeals set out the standard applicable to a motion to dismiss in light of the United States Supreme Court's decisions in Twombly, 550 U.S. 433 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009).

"[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to 'state a claim that relief is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). The Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. Moreover, it continued, "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citation omitted).

McTernan, 577 F.3d at 530. The Circuit Court discussed the effects of Twombly and Iqbal in detail and provided a road map for district courts presented with a motion to dismiss for failure to state a claim in a case filed just a week before ...


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