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Beck v. CNO Financial Group, Inc.

United States District Court, E.D. Pennsylvania

June 14, 2018

MURIEL BECK, Plaintiff,
v.
CNO FINANCIAL GROUP, INC., et al., Defendants.

          MEMORANDUM

          Schiller, J.

         Muriel Beck sued her former employer, CNO Financial Group, Inc., alleging that it fired her in retaliation for her filing an OSHA complaint and seeking unemployment compensation after she took medical leave in connection with a bug infestation in her workplace. Beck claims that CNO's action violated Pennsylvania public policy. Defendants filed a Motion to Dismiss, arguing that there is no Pennsylvania public policy to support Beck's OSHA-based claim, and that even if there is, the claim is precluded under Pennsylvania law. For the reasons discussed below, the Court disagrees, and Defendants' motion is denied.

         I. BACKGROUND

         Beck began working in CNO's Philadelphia call center in August 2016. (Second Am. Compl. [SAC] ¶ 8.) In March 2017, Beck and four of her co-workers began noticing numerous bug bites on their bodies. (Id. ¶¶ 9-10.) According to Beck, the call center had significant problems with mice, bed bugs, and other pests, so much so that CNO hired a pest control company to treat the office monthly. (Id. ¶ 11.)

         Beck filed a complaint with the Occupational Safety and Health Administration (OSHA) regarding the bed bugs and significant mouse droppings. (Id. ¶ 12.) She also saw her doctor about her bug bites, who directed her to take medical leave for two weeks, until March 27, 2017. (Id. ¶ 13.) Beck notified her supervisor that she would be taking medical leave, and he approved, telling her to take leave until she was able to return. (Id. ¶¶ 14, 17.) However, because Beck was an hourly worker, she would not receive wages during her medical leave unless CNO's insurance provider approved. (Id. ¶ 18.) Because of this, Beck applied for and received partial unemployment compensation. (Id. ¶ 19.)

         Beck did not return to work on March 27 because she continued to suffer from the bug bites. (Id. ¶ 20.) On March 31, 2017, CNO fired Beck. (Id. ¶ 23.) It informed her that she was being terminated for “abandonment” of her work from March 20 to March 23. (Id.) Beck alleges, however, that CNO had previously approved her medical leave request through March 27 and permitted her to extend the leave period if necessary. (Id. ¶ 24.) According to Beck, her termination was actually retaliation for her OSHA complaint and partial unemployment claim. (Id. ¶ 25.) She claims that CNO received notice of both and was unhappy. (Id. ¶¶ 21-22.)

         Beck initially sued CNO, the manager of its human resources department, and several John Doe defendants. (Compl. (ECF No. 1) ¶¶ 2-4.) She has amended her complaint twice after CNO filed motions to dismiss the first two complaints. (See ECF Nos. 9, 16.) In her Second Amended Complaint, Beck asserts a claim for wrongful discharge based on Pennsylvania public policy related to her OSHA complaint and unemployment compensation claim. Defendants now include CNO Financial Group, CNO Services, LLC, Bankers Life & Casualty Co., and the John Doe defendants.

         II. STANDARD OF REVIEW

         In reviewing a motion to dismiss for failure to state a claim, a district court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the non-moving party. See Bd. of Trs. of Bricklayers & Allied Craftsmen Local 6 of N.J. Welfare Fund v. Wettlin Assocs., 237 F.3d 270, 272 (3d Cir. 2001). To survive a motion to dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the federal rules do not impose a probability requirement at the pleading stage, a plaintiff must present “enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]” of a cause of action. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). “A claim has facial plausibility when the plaintiff pleads factual content that allows 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). If the court can only infer “the mere possibility of misconduct, ” the complaint must be dismissed because it has failed to show that the plaintiff is entitled to relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

         III. DISCUSSION

         Pennsylvania has an “extremely strong” presumption that all non-contractual employment relationships are at-will. McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 287 (Pa. 2000). Thus, employees generally have no cause of action for wrongful discharge. However, Pennsylvania courts have recognized a very limited exception to this rule if the termination threatens a clear mandate of Pennsylvania public policy. E.g. Weaver v. Harpster, 975 A.2d 555, 563 (Pa. 2009). Pennsylvania public policy “is to be ascertained by reference to [Pennsylvania] laws and legal precedents and not from supposed public interest.” Shick v. Shirey, 716 A.2d 1231, 1237 (Pa. 1998).

         Beck claims that her firing violated Pennsylvania public policy with respect to both the filing of her OSHA complaint and her application for unemployment benefits. Defendants argue that Beck's wrongful discharge claim lacks a nexus to a clearly established Pennsylvania public policy, and that even if a public policy existed, the existence of statutory remedies under the Occupational Safety and Health Act (OSH Act) and the Pennsylvania Worker and Community Right-to-Know Act (PWCRA) precludes her claim.[1] The Court considers these two arguments in turn, and finds that there is public policy to support Beck's claim and that the statutory remedies do not preclude her claim.

         A. Pennsylvania Public Policy

         Courts in this district have found that Pennsylvania public policy is threatened if an employer fires an employee for engaging in protected activity under the OSH Act. See Chiaradonna v. Rosemont Coll., Civ. A. No. 06-1015, 2008 WL 282253, at *7 (E.D. Pa. Jan. 31, 2008); Wetherhold v. RadioShack Corp., 339 F.Supp.2d 670, 682 (E.D. Pa. 2004). In Wetherhold, the court looked to the PWCRA, which instructs that it is “to be read in conjunction with” the OSH Act, to ascertain this public policy. Wetherhold, ...


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