United States District Court, E.D. Pennsylvania
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.
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.
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.)
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.
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.
STANDARD OF REVIEW
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).
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).
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. 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.
Pennsylvania Public Policy
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.