United States District Court,
E.D. Pennsylvania.
Michael A. SMYTH
v.
The PILLSBURY COMPANY.
Civil Action No. 95-5712.
Jan. 23, 1996.
At-will employee brought action against employer alleging wrongful discharge. Former employer moved to dismiss for failure to state a claim. The District Court, Weiner, J., held that termination of at-will employee for transmitting inappropriate and unprofessional comments over employer's e-mail system did not violate public policy and, accordingly, employee could not maintain a wrongful discharge action under public policy exception to general rule that at-will employee may be discharged at any time.
Motion granted.
West Headnotes
[1] Federal
Civil Procedure 
1773
A claim
may be dismissed for failure to state a claim only if plaintiff can prove no
set of facts in support of claim that would entitle him to relief. Fed.Rules
Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.
[2] Federal Civil Procedure 1832
[2] Federal
Civil Procedure 1835
On a
motion to dismiss for failure to state a claim, reviewing court must consider
only those facts alleged in complaint and accept all allegations as true. Fed.Rules
Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.
[3] Labor and Employment 758
(Formerly 255k30(1) Master and Servant)
As a general rule, Pennsylvania law does
not provide a common law cause of action for wrongful discharge of at-will
employee.
[4] Labor and Employment 40(2)
(Formerly 255k20 Master and Servant)
Pennsylvania
is an employment at-will jurisdiction, and employer may discharge an employee
with or without cause, at pleasure, unless restrained by some contract.
[5] Labor and Employment 759
(Formerly 255k30(1.10) Master and Servant)
Pennsylvania
law permits a cause of action against employer for wrongful discharge of
at-will employee where discharge threatens or violates a clear mandate of
public policy which must be of a type that strikes at heart of citizen's social
right, duties and responsibilities.
[6] Labor and Employment 818
(Formerly 255k30(1.20) Master and Servant)
Under
Pennsylvania law, at-will employee may not be fired for serving on jury duty.
[7] Labor and Employment 21
(Formerly 255k1 Master and Servant)
Under
Pennsylvania law, employer may not deny employment to a person with a prior
conviction.
[8] Labor and Employment 800
(Formerly 255k30(6.15) Master and Servant)
Under
Pennsylvania law, at-will employee may not be fired for reporting violations of
federal regulations to Nuclear Regulatory Commission (NRC).
[9] Labor and Employment 759
(Formerly 255k30(1.10) Master and Servant)
For
purposes of principle of Pennsylvania law that at-will employee may sue
employer for wrongful discharge if discharge threatens or violates a clear
mandate of public policy, sources of public policy can be found in legislation,
administrative rules, regulation, or decision, and absent legislation,
judiciary must define the cause of action in case-by-case determinations.
[10] Estoppel 85
Under
Pennsylvania law, employer may not be estopped from firing at-will employee
based upon a promise, even when reliance is demonstrated.
[11] Labor and Employment 763
(Formerly 255k30(1.10) Master and Servant)
Termination
of at-will employee for transmitting inappropriate and unprofessional comments
over employer's e-mail system did not violate public policy and, accordingly, former employee could
not maintain a wrongful discharge action against employer under Pennsylvania
law, notwithstanding any assurances that such communications would not be
intercepted by management; once employee communicated a comment over e-mail
system apparently utilized by entire company, a reasonable expectation of
privacy was lost, and even if employee had a reasonable expectation of privacy,
a reasonable person would not have considered employer's interception of
communications to be a substantial and highly offensive invasion of his
privacy.
*98
Hyman Lovitz, Lovitz & Gold, P.C.,
Philadelphia, PA, Sidney
L. Gold, Lovitz & Gold, P.C., Philadelphia,
PA, for Plaintiff.
Steven
R. Wall, Morgan, Lewis & Bockius,
Philadelphia, PA, for Defendant.
MEMORANDUM OPINION AND ORDER
WEINER, District Judge.
In this diversity action, plaintiff, an
at-will employee, claims he was wrongfully discharged from his position as a
regional operations manager by the defendant.
Presently before the court is the motion of the defendant to dismiss
pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
For the reasons which follow, the motion is granted.
[1][2] A claim may be
dismissed under Fed.R.Civ.P.
12(b)(6) only if the plaintiff can prove no set
of facts in support of the claim that would entitle him to relief. ALA,
Inc. v. CCAIR, Inc.,
29 F.3d 855, 859 (3d Cir.1994). The reviewing court must consider only those
facts alleged in the Complaint and accept all of the allegations as true. Id.
Applying this standard, we find that plaintiff has failed to state a
claim upon which relief can be granted.
Defendant maintained an electronic mail
communication system ("e-mail") in order to promote internal
corporate communications between its employees. Complaint at ¶ 8.
Defendant repeatedly assured its employees, including plaintiff, that
all e-mail communications would remain confidential and privileged. Complaint at ¶ 9.
Defendant further assured its employees, including plaintiff, that e-mail
communications could not be intercepted and used by defendant against its
employees as grounds for termination or reprimand. Complaint at ¶ 10.
In October 1994, plaintiff received certain
e-mail communications from his supervisor over defendant's e-mail system on his
computer at home. Complaint at ¶ 11.
In reliance on defendant's assurances regarding defendant's e-mail
system, plaintiff responded and exchanged e-mails with his supervisor. Id. At some later date, contrary to
the assurances of confidentiality made by defendant, defendant, acting through
its agents, servants and employees, intercepted
plaintiff's private e-mail messages made in October 1994. Complaint at ¶ 12.
On January 17, 1995, defendant notified plaintiff that it was
terminating his employment effective February 1, 1995, for transmitting what it
deemed to be inappropriate and unprofessional comments [FN1] over defendant's e-mail *99 system in October,
1994. Complaint at ¶ ¶ 13, 14.
FN1. Defendant
alleges in its motion to dismiss that the e-mails concerned sales management
and contained threats to "kill the backstabbing bastards" and
referred to the planned Holiday party as the "Jim Jones Koolaid affair."
[3][4] As a general rule, Pennsylvania law does not provide a
common law cause of action for the wrongful discharge of an at-will employee
such as plaintiff. Borse
v. Piece Goods Shop, Inc.,
963 F.2d 611, 614 (3d Cir.1992); Paul
v. Lankenau Hospital,
524 Pa. 90, 93, 569 A.2d 346, 348 (1990); Geary
v. United States Steel Corp.,
456 Pa. 171, 319 A.2d 174 (1974). Pennsylvania is an employment at-will
jurisdiction and an employer "may discharge an employee with or without
cause, at pleasure, unless restrained by some contract." Henry
v. Pittsburgh & Lake Erie Railroad Co.,
139 Pa. 289, 297, 21 A. 157, 157 (1891). See also, Johnson
v. Resources for Human Development, Inc.,
843 F.Supp. 974, 979 (E.D.Pa.1994); Brown
v. Hammond,
810 F.Supp. 644, 645 (E.D.Pa.1993) (An employer's
right to terminate an at-will employee is "virtually
absolute".); Yetter
v. Ward Trucking Corp.,
401 Pa.Super. 467, 585 A.2d 1022 (1991).
[5] However, in the most limited of circumstances, exceptions
have been recognized where discharge of an at-will employee threatens or
violates a clear mandate of public policy.
Borse,
963 F.2d at 614;
Clay
v. Advanced Computer Applications,
522 Pa. 86, 88, 559 A.2d 917, 918 (1989) (If
discharge of at-will employee threatens clear mandates of public policy, there
is a cause of action against the employer.);
Geary, supra. A
"clear mandate" of public policy must be of a type that "strikes
at the heart of a citizen's social right, duties and
responsibilities." Novosel
v. Nationwide Insurance Co.,
721 F.2d 894, 899 (3d Cir.1983). This recognized public policy exception is
an especially narrow one. Burkholder
v. Hutchison,
403 Pa.Super. 498, 589 A.2d 721, 724 (1991). To date, the Pennsylvania Superior Court has
only recognized three such exceptions.
[6] First, an employee may not be fired for serving on jury
duty. Reuther
v. Fowler & Williams, Inc.,
255 Pa.Super. 28, 386 A.2d 119 (1978). The
Reuther court cited the Pennsylvania constitution as well as the Pennsylvania
statutes in concluding that "the necessity of having citizens freely
available for jury service is just the sort of 'recognized facet of public
policy' alluded to by our Supreme Court in Geary." 386
A.2d at 121.
[7] Second, an employer
may not deny employment to a person with a prior conviction. Hunter
v. Port Authority of Allegheny County,
277 Pa.Super. 4, 419 A.2d 631 (1980). The Hunter court relied on federal
court decisions as well as Pennsylvania statutes and Pennsylvania court
decisions before concluding that the defendant violated the Pennsylvania
constitution and "the deeply ingrained public policy of this State ... to
avoid unwarranted stigmatization of and unreasonable restrictions upon former
offenders." 419
A.2d at 636, n. 5.
[8] And finally, an employee may not be fired for reporting
violations of federal regulations to the Nuclear
Regulatory Commission. Field
v. Philadelphia Electric Company,
388 Pa.Super. 400, 565 A.2d 1170, 1180 (1989).
That court held that the alleged discharge was against public policy because
federal law required the employee to report violations and he was an expert in
the area and there was no evidence that he bypassed any internal chain of
command. 565
A.2d at 1180.
[9] As evidenced above, a public policy exception must be
clearly defined. See also, McGonagle
v. Union Fidelity Corp.,
383 Pa.Super. 223, 556 A.2d 878, 885 (1989),
appeal denied, 525
Pa. 584, 575 A.2d 115 (1990) ("Unless an
employee identifies a 'specific' expression of public policy violated by his
discharge, it will not be labelled as wrongful and within the sphere of public
policy"). The sources of public
policy can be found in "legislation, administrative
rules, regulation, or decision; and
judicial decisions ... Absent legislation, the judiciary must define the cause
of action in case by case determinations."
Borse,
963 F.2d at 619, n. 6 (3d Cir.1992) quoting Cisco
v. United Parcel Services, Inc.,
328 Pa.Super. 300, 306, 476 A.2d 1340, 1343 (1984); Krajsa
v. Keypunch, Inc.,
424 Pa.Super. 230, 622 A.2d 355, 358 (1993); see also, Smith
v. Calgon Carbon Corp.,
917 F.2d 1338, 1344 (3d Cir.1990), cert. denied, 499
U.S. 966, 111 S.Ct. 1597, 113 L.Ed.2d 660 (1991)
("[A] 'clear mandate of public policy' *100 [is] embodied in a
constitutionally or legislatively established prohibition, requirement, or
privilege."). Whitney v. Xerox,
C.A.No. 94-3852, 1994 WL 412429 (E.D.Pa. August 2, 1994) slip op. at 3-4.
[10][11] Plaintiff claims that his termination was in violation of
"public policy which precludes an employer from terminating an employee in
violation of the employee's right to privacy as embodied in Pennsylvania common
law." Complaint at ¶ 15. [FN2] In support for this proposition, plaintiff
directs our attention to a decision by our Court of Appeals in Borse
v. Piece Goods Shop, Inc.,
963 F.2d 611 (3d Cir.1992). In Borse, the plaintiff sued her
employer alleging wrongful discharge as a result of her refusal to submit to
urinalysis screening and personal property searches at her work place pursuant
to the employer's drug and alcohol policy.
After rejecting plaintiff's argument that the employer's drug and alcohol
program violated public policy encompassed
in the United States and Pennsylvania Constitutions, our Court of Appeals
stated "our review of Pennsylvania law reveals other evidence of a public
policy that may, under certain circumstances, give rise to a wrongful discharge
action related to urinalysis or to personal property searches. Specifically, we refer to the Pennsylvania
common law regarding tortious invasion of privacy." Id. at 620.
FN2. Although
plaintiff does not affirmatively allege so in his Complaint or in his
memorandum of law in opposition to defendant's motion to dismiss, the
allegations in the Complaint might suggest that plaintiff is alleging an exception
to the at-will employment rule based on estoppel, i.e. that defendant
repeatedly assured plaintiff and others that it would not intercept e-mail
communications and reprimand or terminate based on the contents thereof and
plaintiff relied on these assurances to his detriment when he made the
"inappropriate and unprofessional" e-mail communications in October
1994. The law of Pennsylvania is clear,
however, that an employer may not be estopped from firing an employee based
upon a promise, even when reliance is demonstrated. Paul
v. Lankenau Hospital,
524 Pa. 90, 569 A.2d 346 (1990).
The Court of Appeals in Borse, observed
that one of the torts which Pennsylvania
recognizes as encompassing an action for invasion of privacy is the tort of
"intrusion upon seclusion."
As noted by the Court of Appeals, the Restatement (Second) of Torts
defines the tort as follows:
One who intentionally intrudes, physically or otherwise,
upon the solitude or seclusion of another or his private affairs or concerns,
is subject to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable person.
Restatement
(Second) of Torts § 652B. Liability only
attaches when the "intrusion is
substantial and would be highly offensive to the 'ordinary reasonable person.'
" Borse,
963 F.2d at 621 (citation omitted). Although the Court of Appeals in Borse
observed that "[t]he Pennsylvania courts have not had occasion to consider
whether a discharge related to an employer's tortious invasion of an employee's
privacy violates public policy", the Court of Appeals predicted that in
any claim where the employee claimed that his discharge related to an invasion
of his privacy "the Pennsylvania Supreme Court would examine the facts and
circumstances surrounding the alleged invasion of privacy. If the court determined that the discharge
was related to a substantial and highly offensive invasion of the employee's
privacy, [the Court of Appeals] believe that it would conclude that the
discharge violated public policy." Id.
at 622. In determining whether an alleged
invasion of privacy is substantial and highly offensive to a reasonable person,
the Court of Appeals predicted that
Pennsylvania would adopt a balancing test which balances the employee's privacy
interest against the employer's interest in maintaining a drug-free
workplace. Id. at 625. Because the Court of Appeals in Borse
could "envision at least two ways in which an employer's drug and alcohol
program might violate the public policy protecting individuals from tortious
invasion of privacy by private actors" id. at 626, the Court
vacated the district court's order dismissing the plaintiff's complaint and
remanded the case to the district court with directions to grant Borse leave to
amend the Complaint to allege how the defendant's drug and alcohol program
violates her right to privacy.
Applying the Restatement definition of the
tort of intrusion upon seclusion to the facts *101 and circumstances of
the case sub judice, we find that plaintiff has failed to state a claim
upon which relief can be granted. In
the first instance, unlike urinalysis and personal property searches, we do not
find a reasonable expectation of privacy in e-mail communications voluntarily made
by an employee to his supervisor over the company e-mail system notwithstanding
any assurances that such communications would not be intercepted by
management. Once plaintiff communicated
the alleged unprofessional comments to a second person (his supervisor) over an
e-mail system which was apparently utilized by the entire company, any
reasonable expectation of privacy was lost.
Significantly, the defendant did not require plaintiff, as in the case of an urinalysis or
personal property search to disclose any personal information about
himself. Rather, plaintiff voluntarily
communicated the alleged unprofessional comments over the company e-mail
system. We find no privacy interests in
such communications.
In the second instance, even if we found that
an employee had a reasonable expectation of privacy in the contents of his
e-mail communications over the company e-mail system, we do not find that a
reasonable person would consider the defendant's interception of these
communications to be a substantial and highly offensive invasion of his
privacy. Again, we note that by
intercepting such communications, the company is not, as in the case of
urinalysis or personal property searches, requiring the employee to disclose
any personal information about himself or invading the employee's person or
personal effects. Moreover, the
company's interest in preventing inappropriate and unprofessional comments or
even illegal activity over its e-mail system outweighs any privacy interest the
employee may have in those comments.
In sum, we find that the defendant's actions
did not tortiously invade the plaintiff's privacy and, therefore, did not
violate public policy. As a result, the
motion to dismiss is granted.
914 F.Supp. 97, 64 USLW 2564, 131 Lab.Cas. P
58,104, 11 IER Cases 585
END OF
DOCUMENT