United States District Court, M.D. Pennsylvania
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.
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”). Hawbaker moved for partial
judgment on the pleadings,  which this Court granted,
leaving only Mr. Bamat's discrimination claim under the
ADA (Count I of his amended complaint) actionable.
Bamat then filed a motion for reconsideration asking this
Court to reconsider its dismissal of Mr. Bamat's
workers' compensation retaliation claim, or alternatively,
for leave to file a second amended complaint to state his
workers' compensation retaliation claim. The Court granted
Mr. Bamat's motion for leave to file a second amended
complaint. Mr. Bamat filed his second amended
complaint,  and Hawbaker presently moves to dismiss
the workers' compensation retaliation
Mr. Bamat's Workers' Compensation Retaliation Claim
Must Be Dismissed.
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.This Court agrees.
Court has previously explained to Mr. Bamat,  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.”
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,  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
contrary, Mr. Bamat appears to contend that he need not
allege such facts. 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
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,
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.
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. 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.” 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
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. 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. 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.
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,  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.” 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.
in Larochelle v. Wilmac Corporation,  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.” 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.” 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.” 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
in Smith v. R.R. Donnelley and Sons Co.,
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.” 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. 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.
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. 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.
Mr. Bamat's Request for Leave to File a Third ...