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Cathcart v. Micale

United States District Court, E.D. Pennsylvania

August 28, 2019

JOHN MICALE, et al. Defendants


          JOSHUA D. WOLSON, J.

         Defendant USI Insurance Services LLC (“USC”) seeks dismissal of each of the three claims asserted against it by Plaintiff Joseph Cathcart. Because Cathcart fails to state a claim against USI, the Court will grant USI's Motion to Dismiss.


         Cathcart worked for USI as a Practice Leader in USI's King of Prussia office. (ECF No. 4 ¶ 21.) In June 2018, Defendant John Micale took over as Cathcart's supervisor. (Id. ¶ 23.) Over the next five months, Micale criticized Cathcart's job performance, chided Cathcart for perceived mistakes, and make loud pejorative comments to aggravate, annoy, and intimidate Cathcart. (Id. ¶ 24.) The friction between the two men came to a head on November 14, 2018, during a USI leadership conference. (Id. ¶ 26.)

         Cathcart and five other USI leaders were sitting in the lounge at the hotel at which they were staying during the conference. (Id. ¶ 27.) Unprovoked, Micale approached the group and began to “yell and hurl insults” at Cathcart for five-to-ten minutes. (Id. ¶ 28.) Humiliated and fearful of Micale, Cathcart retreated to his hotel room. (Id. ¶ 29.) The next day, Micale tendered an insincere apology to Cathcart and continued to threaten Cathcart's employment with USI. (Id. ¶ 31.) Cathcart feared for his continued employment with USI. (Id. ¶ 32.)

         On November 16, 2018, Cathcart submitted a written complaint to USI's Head of Human Resources. (Id. ¶ 33.) Eileen Webb, a member of the Human Resources Department, investigated Cathcart's complaint. (Id. ¶¶ 34-36.) Ms. Webb determined that Cathcart's complaint against Micale was well-founded, and USI issued a warning to Micale. (Id. ¶¶ 37, 39.) In addition, Ms. Webb assured Cathcart that his “employment and [his] future with the Company would not be affected by this complaint or the remedial action taken by the Company.” (Id. ¶ 40.)

         On February 22, 2019, USI informed Cathcart that it was eliminating his position and would terminate him, effective March 31, 2019. (Id. ¶ 43.) Cathcart contends that “[t]he sole reason USI terminated [his] employment was in retaliation and reprisal for his ongoing complaints against defendant Micale.” (Id. ¶ 47.) As a result of his termination, Cathcart alleges he has suffered lost wages and diminished earning capacity, inter alia. (Id. ¶¶ 50-51.)

         Cathcart filed a complaint against Micale and USI on April 29, 2019. (ECF No. 1.) On May 10, 2019, he filed an Amended Complaint, which is the operative pleading. (ECF No. 4.) In Count I, Cathcart brings an assault claim against Micale. In Counts II, III, and IV, Cathcart brings claims against USI for negligent misrepresentation, promissory estoppel, and breach of unilateral contract, respectively. On July 2, 2019, USI moved to dismiss each of these three claims. (ECF No. 10.) Cathcart responded to the motion (ECF No. 14), which is ripe for disposition.


         A district court may dismiss a plaintiff's complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Rather than require detailed pleadings, the “Rules demand only a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (quotation omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (same). A claim has facial plausibility when the complaint contains factual allegations that permit the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (same). In doing so, the court must “draw on its judicial experience and common sense.” Id. (same). Under the governing “pleading regime[, ]” a court confronted with a 12(b)(6) motion must take three steps. First, it must identify the elements needed to set forth a particular claim. Id. at 878 (same). Second, the should identify conclusory allegations, such as legal conclusions, that are not entitled to the presumption of truth. Id. (same). Third, with respect to well-pleaded factual allegations, the court should accept those allegations as true and “determine whether they plausibly give rise to an entitlement to relief.” Id. (same). The court must “construe those truths in the light most favorable to the plaintiff, and then draw all reasonable inferences from them.” Id. at 790 (citations omitted).

         III. ANALYSIS

         A. Cathcart Has Not Stated A Claim For Breach Of Unilateral Contract

         A contract exists where there is an offer, acceptance, and consideration. See Gardiner v. Virgin Islands Water & Power Auth., 145 F.3d 635, 644 (3d Cir. 1998); see also Kendall v. OneBeacon Am., No. 06-cv-1895, 2007 WL 1031249, at *3 (E.D. Pa. Mar. 30, 2007) (setting forth elements of unilateral contract). Here, Cathcart asserts that Webb's promise to him that USI would not terminate him in retaliation for his complaints against Micale created a unilateral contract. Even assuming that Webb's statement constitutes an offer and Cathcart's continued employment constitutes acceptance, Cathcart has not alleged facts to establish any consideration.

         In his Opposition, Cathcart argues that his continued employment constitutes such consideration. However, to defeat the at-will presumption, Cathcart must demonstrate “that he gave his employer additional consideration other than the services for which he was hired.” Donahue v. Fed. Exp. Corp., 753 A.2d 238, 245 (Pa. Super. Ct. 2000) (quotation omitted). Additional consideration exists “when an employee affords his employer a substantial ...

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