United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, Magistrate Judge.
Pending before the Court is the Defendants' Motion to Dismiss Counts VI though IX of Plaintiff's Amended Complaint (ECF No. 34). The Court has reviewed Plaintiff's First Amended Complaint, (ECF No. 32), the Motion to Dismiss, the briefs filed in support and in opposition thereto, (ECF Nos. 35, 39 and 40), as well as Defendants' Supplemental Brief in Support of Motion to Dismiss (ECF No. 48) and Plaintiff's Response Brief in Opposition. (ECF No. 49). For the following reasons, it is respectfully recommended that the Motion to Dismiss be granted in part and denied in part.
A. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Marie Gillespie ("Plaintiff" or "Gillespie") initiated this civil action on October 22, 2013, with the filing of a five-count Complaint (ECF No. 1). In her original Complaint, Plaintiff set forth various claims against Defendants for her alleged retaliatory discharge on November 1, 2012, in violation of the Emergency Medical Treatment and Active Labor Act ("EMTALA")(Count I) and for her alleged wrongful termination in violation of various public policies (Counts II-V). Defendants filed a Motion to Dismiss Counts II-V pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (ECF No. 2), contending that Plaintiff's common law wrongful discharge claims were preempted by applicable federal and state statutes, including the Pennsylvania Whistleblower Law, 43 P.S. §§ 1422, et. seq., and the Pennsylvania MCARE Act, 50 P.S. §§ 1303.101 et. seq. This Court denied the initial Motion to Dismiss, noting that EMTALA appears to contemplate the incorporation of state common law remedies into an EMTALA civil action, and discovery would be required to determine if Plaintiff's common law claims were duplicative of her statutory claims. (ECF Nos. 13, 16).
Subsequently, Plaintiff filed a Motion to Amend/Correct her Complaint (ECF No. 27), which was granted on October 15, 2014 (ECF No. 28). Plaintiff filed her First Amended Complaint on October 31, 2014, (ECF. No. 32), which purports to add four claims (Count VI through IX). In pertinent part, the Amended Complaint states that "[t]he alleged unlawful firing of Plaintiff described in Counts I-V was also violative of the anti-retaliation provisions of [the Pennsylvania Medical Care Availability and Reduction of Error (MCARE) Act ("MCARE Act")], Title 40 Section 1303.308(c)."
Defendants have filed this second Motion to Dismiss, seeking to dismiss each of the additional claims (Counts VI through IX) based upon Plaintiff's failure to timely file her MCARE Act claims. In addition, Defendants seek the dismissal of all retaliation claims, because Plaintiff's claims arise out of complaints lodged within the scope of her employment, which Defendants argue cannot constitute "protected activity."
B. STANDARD OF REVIEW
In assessing the sufficiency of the complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone , 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See California Public Employees' Retirement System v. The Chubb Corp. , 394 F.3d 126, 143 (3d Cir. 2004), citing Morse v. Lower Merion Sch. Dist. , 132 F.3d 902, 906 (3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). Rather, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id., citing Papasan v. Allain , 478 U.S. 265, 286 (1986). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege "enough facts to state a claim to relief that is plausible on its face, " id. at 570, or where the factual content does not allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). See Phillips v. County of Allegheny , 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, "labels, conclusions, and a formulaic recitation of the elements of a cause of action" do not suffice but, rather, the complaint "must allege facts suggestive of [the proscribed] conduct" and that are sufficient "to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim"). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U.S. at 677. "When there are well- pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679.
1. Statute of Limitations
Defendants contend that dismissal of Plaintiff's MCARE anti-retaliation claims (Counts VI through IX) is required because Plaintiff failed to assert her claims within the 180 day statute of limitations set forth in the Pennsylvania Whistleblower Statute, 43 P.S. § 1424(a). Plaintiff was terminated on November 1, 2012. Therefore, Defendants contend the statute of limitations ran on her whistleblower claims well before the filing of this action October 22, 2013, and certainly before the filing of her First Amended Complaint on October 31, 2014. Plaintiff responds that Defendants have invoked the wrong statute of limitations; rather, Plaintiff argues that MCARE's two year statute of limitations for medical injuries governs her whistleblower claim. (ECF No. 39, p. 4). This issue of law is readily resolved in favor of Defendants.
As explained by the Pennsylvania Supreme Court in Dep' of Envtl. Prot. v. Cumberland Coal Res., LP , 102 A.3d 962, 975 (Pa. 2014), the Pennsylvania Statutory Construction Act, 1 P.S. §§ 1501 et seq., expressly provides that "the objective of all interpretation and construction of statutes is to ascertain and ...