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Bamat v. Glenn O. Hawbaker, Inc.

United States District Court, M.D. Pennsylvania

July 26, 2019

JONATHAN BAMAT, Plaintiff,
v.
GLENN O. HAWBAKER, INC., Defendant.

          ORDER

          Matthew W. Brann United States District Judge

          Defendant Glenn O. Hawbaker, Inc. (“Hawbaker”) has moved to partially dismiss Plaintiff Jonathan Bamat's second amended complaint. For the following reasons, Hawbaker's motion will be granted in part.

         I. BACKGROUND

         This case arises from Mr. Bamat's relationship with his former employer, Hawbaker. Mr. Bamat's original complaint and amended complaint alleged two claims under Pennsylvania law-a wrongful discharge claim under a theory of workers' compensation retaliation and an invasion of privacy claim, as well as discrimination and retaliation claims under the Rehabilitation Act (“RA”) and the Americans with Disabilities Act (“ADA”).[1] Hawbaker moved for partial judgment on the pleadings, [2] which this Court granted, [3] leaving only Mr. Bamat's discrimination claim under the ADA (Count I of his amended complaint) actionable.

         Mr. Bamat then filed a motion for reconsideration asking this Court to reconsider its dismissal of Mr. Bamat's workers' compensation retaliation claim, [4]or alternatively, for leave to file a second amended complaint to state his workers' compensation retaliation claim.[5] The Court granted Mr. Bamat's motion for leave to file a second amended complaint.[6] Mr. Bamat filed his second amended complaint, [7] and Hawbaker presently moves to dismiss the workers' compensation retaliation claim.[8]

         II. DISCUSSION

         A. Mr. Bamat's Workers' Compensation Retaliation Claim Must Be Dismissed.

         Hawbaker argues that Mr. Bamat has failed to plead his workers' compensation retaliation claim because he has not alleged facts that Mr. Bamat expressed to Hawbaker a specific intent to file a workers' compensation claim.[9]This Court agrees.

         As this Court has previously explained to Mr. Bamat, [10] to sustain a claim for wrongful discharge under a theory of workers' compensation retaliation, Mr. Bamat must allege, inter alia, facts that he “expressed a specific intent to seek workers' compensation benefits. Simply reporting the work related injury is not enough.”[11]

         Here, Mr. Bamat's second amended complaint again fails to allege that he expressed a specific intent to seek workers' compensation benefits. Although Mr. Bamat explains that he reported his work-related injury to the workers' compensation triage nurse, [12] nowhere in the second amended complaint does Mr. Bamat allege that he told or otherwise expressed to anyone at Hawbaker that he specifically intended to file a workers' compensation claim.

         To the contrary, Mr. Bamat appears to contend that he need not allege such facts.[13] According to Mr. Bamat, because Hawbaker believed that Mr. Bamat intended to seek workers' compensation benefits, Mr. Bamat has stated a wrongful discharge claim under a so-called “perception theory” of workers' compensation retaliation.[14]

         Although the United States Court of Appeals for the Third Circuit has recognized this perception theory in the context of retaliation claims alleged under the ADA, the Age Discrimination in Employment Act (ADEA), and the Pennsylvania Human Relations Act (PHRA), concluding that a plaintiff may support a retaliation claim with facts that his employer perceived the plaintiff had engaged in protected activity, [15] Mr. Bamat adduces no authority-and this Court could locate none-where a plaintiff sustained a claim arising under Pennsylvania law for workers' compensation retaliation without expressing to his employer his intent to file a workers' compensation claim.

         In fact, it appears that Mr. Bamat's perception theory is undermined by Pennsylvania courts' repeated characterization of workers' compensation retaliation claims as a narrow exception to the Commonwealth's employment at-will doctrine.[16] Under Pennsylvania law, the non-contractual relationship between employers and employees is typically one of an at-will nature, and the Pennsylvania Supreme Court has explained that the presumption of such an at-will relationship is “an extremely strong one.”[17] Consequently, “[a]n employee will be entitled to bring a cause of action for a termination of that relationship only in the most limited of circumstances.”[18]

         In Shick v. Shirey, the Pennsylvania Supreme Court identified conduct falling within those limited circumstances and held that a plaintiff may sustain a wrongful discharge claim when he alleges that he was terminated after filing a workers' compensation claim.[19] Although courts interpreting Shick have allowed plaintiffs to seek redress for workers' compensation retaliation without actually filing a workers' compensation claim, those courts have nevertheless kept the focus on what the plaintiff did to engage in protected activity. That is, if a plaintiff alleges that he was fired for seeking workers' compensation benefits but never actually filed a claim, it is still the plaintiff who must (1) report the work-related injury; and (2) express to his employer his intent to file a workers' compensation claim.[20] Again, Mr. Bamat adduces no authority where a plaintiff sustained a workers' compensation retaliation claim by relying on facts as to what his employer believed, rather than stating facts as to what the plaintiff expressed. Thus, to the extent Mr. Bamat attempts to expand what amounts to protected activity actionable under a theory of workers' compensation retaliation, that effort is not countenanced by Pennsylvania courts.

         The three cases cited by Mr. Bamat only confirm the requirement that a plaintiff must express intent to file a worker's compensation claim-and highlight Mr. Bamat's failure to meet it. First, in Worthington v. Chester Downs & Marina, LLC, [21] the plaintiff plead in his complaint that “he had notified [his employer] that his injury was work related and expressed his intent to file a claim for workers' compensation benefits.”[22] Consequently, the court denied the defendant's motion to dismiss the plaintiff's workers' compensation retaliation claim. Here, Mr. Bamat's second amended complaint contains no such averment as to whether Mr. Bamat's expressed to Hawbaker his intent to file a workers' compensation claim. Accordingly, Worthington does not support Mr. Bamat's argument.

         Second, in Larochelle v. Wilmac Corporation, [23] the Third Circuit affirmed the award of summary judgment in an employer's favor because the plaintiff “presented no evidence that she notified [d]efendants of an intent to file a workers' compensation claim.”[24] The court reasoned that assuming the plaintiff “reported her injury to the proper supervisor, the mere fact that she filled out an incident report stating she fell at work does not mean that she expressed to [d]efendants her intent to file a workers' compensation claim.”[25] Here, Mr. Bamat's second amended complaint alleges that Mr. Bamat reported his insect bite as a work-related injury, an injury report was created, and he told his supervisor that “he should be compensated for the insect bite.”[26] Again, nowhere in the second amended complained does Mr. Bamat state that he expressed his intent to file a workers' compensation claim. Accordingly, Larochelle does not support Mr. Bamat's argument.

         Third, in Smith v. R.R. Donnelley and Sons Co., [27] the court explained that “the mere possibility of employer liability … and the mere awareness of a work- related injury are insufficient grounds upon which to base a finding of engagement in protected activity.”[28] The Smith court that made clear that a plaintiff must (1) report the work-related injury; and (2) express to his employer his intent to file a workers' compensation claim.[29] Here, even if Hawbaker believed that Mr. Bamat intended to file a workers' compensation claim and was aware of his injury, that does not absolve Mr. Bamat from the requirement that he express to Hawbaker his intent to file a worker's compensation claim. Accordingly, Smith does not support Mr. Bamat's argument.

         In sum, this Court cannot conclude that a wrongful discharge claim based on a theory of workers' compensation retaliation can be premised only on facts as to what Hawbaker believed; Mr. Bamat should have alleged facts as to what as to what Mr. Bamat said or expressed to Hawbaker about his specific intent to file a workers compensation claim.[30] It is the absence of those facts that doomed Mr. Bamat's original complaint and first amended complaint, and that problem has not been cured by his second amended complaint. Accordingly, because Mr. Bamat's second amended complaint does not contain any allegations that Mr. Bamat expressed a specific intent to file a workers' compensation claim, his wrongful discharge claim based on a theory of workers compensation retaliation must be dismissed for failure to state a claim.

         B. Mr. Bamat's Request for Leave to File a Third ...


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