Howell v. PPL Services Corp. , 232 F. App'x 111 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-19-2007
Howell v. PPL Ser Corp
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5074
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-5074
___________
DONALD HOWELL,
Appellant
v.
PPL SERVICES CORPORATION
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 04-cv-04196)
District Judge: The Honorable Eduardo C. Robreno
___________
Submitted Under Third Circuit LAR 34.1(a)
April 11, 2007
Before: SMITH, NYGAARD, and HANSEN,* Circuit Judges.
(Filed: April 19, 2007)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
*Honorable David R. Hansen, Senior Circuit Judge for the Eighth Circuit Court of
Appeals, sitting by designation.
In this employment discrimination case, Appellant Donald Howell appeals
the District Court's order granting summary judgment to Howell's former employer,
Appellee PPL Services Corporation, (PPL). We will affirm.
I.
We write only for the parties and briefly describe only those facts essential
to a complete understanding of our analysis. Howell, a fifteen year employee of PPL was
sent to a training seminar in Florida in October of 2002. Howell’s employment with PPL
was terminated in October of 2002 after Howell left the training program in Florida early
without notifying or receiving permission to depart early from his supervisor. PPL
instituted an independent audit of Howell’s actions which concluded among other things,
that Howell had attempted to hide his early departure from PPL by altering a copy of the
parking receipt he submitted for reimbursement to disguise the date upon which he
actually returned. The independent auditors concluded that Howell had violated company
policies regarding reporting time and expense reimbursement, as well as the company’s
policies on conduct and employee integrity.
Howell filed a complaint and, after the withdrawal of his original counsel,
an amended complaint in the District Court. In this first amended complaint, Howell
alleged discriminatory discharge (Count I), and wrongful discharge in violation of public
policy. The District Court dismissed Howell’s wrongful discharge claim after
determining that Howell could not articulate a public policy of the Commonwealth of
Pennsylvania that had been implicated by his termination. Howell amended his complaint
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for a second time, adding a claim for disparate impact (Count II) under the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq.
In deciding PPL’s motion for summary judgment on the age discrimination
claims, the District Court assumed that Howell had established a prima facie case and that
PPL has produced a legitimate non-discriminatory reason for its actions. Nonetheless, the
District Court, in a bench opinion, held that Howell had failed to produce sufficient
admissible evidence that similarly-situated employees outside a protected class were
treated more favorably or more leniently than Howell for having committed substantially
similar offenses. Appendix at 11. The Court granted PPL’s motion for summary
judgment on Howell’s claim of disparate treatment. Additionally, the District Court
granted summary judgment on Howell’s claim of disparate impact, finding that Howell
failed to identify a specific employment practice, that while neutral on its face,
discriminated against members of the protected class based on age. Howell timely
appealed.1
II.
1. We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review
of the District Court's grant of summary judgment. Kautz v. Met-Pro Corp., 412 F.3d 463,
466 (3d Cir. 2005).
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On appeal, Howell first argues that the District Court erred in dismissing his
claim that he was wrongfully discharged in violation of public policy. Specifically,
Howell maintains that his employment was terminated because he complained to
supervisors about alleged violations of Nuclear Regulatory Commission regulations at
PPL’s nuclear power plant near Berwick, Pennsylvania.
Although an “employment at will” jurisdiction, the Commonwealth of
Pennsylvania has carved out a limited exception to this principle: an employee is
permitted to bring a cause of action for wrongful discharge where a termination would
violate “a clear mandate of public policy.” McLaughlin v. Gastrointestinal Specialists,
Inc., 750 A.2d 283, 287 (Pa. 2000). The Pennsylvania Supreme Court has held that in
order for the public policy exception to apply, the alleged violation of public policy must
be of Pennsylvania public policy, not solely an alleged violation of federal law. Id. at
289. (“[A] Plaintiff must do more than show a possible violation of a federal statute ...
[and] must allege that some public policy of this Commonwealth is implicated,
undermined, or violated.”). Moreover, the Pennsylvania Supreme Court reserves for itself
the province of deciding what the public policies of the Commonwealth are. That court
has specifically instructed that “we declare the public policy of this Commonwealth by
examining the precedent within Pennsylvania, looking to our own Constitution, court
decisions and statutes promulgated by our legislature.” Id. at 288.
Here, we agree with the District Court’s determination that Appellant has
failed to clearly indicate or identify any Pennsylvania public policy that would have been
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violated had he been terminated for complaining about procedures and perceived
violations of NRC regulations in the workplace. “Where the public policy claimed to be
violated is not ‘clear,’ a cause of action for wrongful discharge has not been recognized.”
McGonagle v. Union Fidelity Corp., 556 A.2d 878, 884 (Pa. Super. Ct.1989). Howell
attempts to salvage his claim by citing the federal Energy Reorganization Act of 1974,
and the federal Atomic Energy Act as the sources of the public policy upon which his
claim is predicated. The policies and purposes of these particular federal statutes,
however, are not policies of the Commonwealth of Pennsylvania and as such cannot
provide a foundation for Howell’s claims. See McLaughlin, 750 A.2d at 288. Therefore,
the District Court was correct in finding for PPL on the issue of wrongful discharge.
We turn next to the ADEA claims. Howell raises both a disparate impact
and a discriminatory discharge claim. We turn first to Howell’s disparate impact claim.
In ADEA, cases, once an employer puts forth a legitimate, nondiscriminatory reason for
an employee's termination, the employee bears the burden of proving that the employer's
reason is merely pretext for a discriminatory motive. Kautz v. Met-Pro Corp., 412 F.3d
463, 466-67 (3d Cir. 2005); Shaner v. Synthes (USA), 204 F.3d 494, 501 (3d Cir. 2000).
Here, the District Court assumed that Howell had established a prima facie case and that
PPL had put forth legitimate, non-discriminatory reasons for his termination. That left it
to Howell to show “ ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of credence.’ “ Kautz, 412 F.3d
5
at 67 (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994)); Shaner 204 F.3d at
501 (quoting Fuentes). Howell may accomplish this by establishing facts from which a
reasonable fact-finder could conclude that the employer's reason “was either a post hoc
fabrication or otherwise did not actually motivate the employment action.” Kautz, 412
F.3d at 67.
Howell has not put forth any evidence that PPL’s reason for his termination
— violating company policies on time and expenses, and on conduct and employee
integrity — were not the true reason for his termination. The District Court determined
that Howell failed to produce:
sufficient admissible evidence that similarly-situated
employees outside a protected class were treated more
favorably or more leniently than plaintiff for having
committed substantially similar offenses. The evidence
produced by the plaintiff consists largely, if not totally, of his
own understanding of events, which was gained as a result of
hearsay, or other inadmissible evidence.
App. at 11. Having conducted our own review of the file on appeal and the District
Court's orders and opinion, we find no reason to disturb the Court's ruling on this claim.
Similarly, the District Court’s resolution of Howell’s disparate impact claim
is affirmed. Howell failed to identify any specific employment practice that, while
neutral on its face, discriminated against members of the protected class because of their
age. The record does not provide any evidence which would permit Howell to identify a
specific employment practice which created an alleged disparate impact.
III.
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Howell has simply not come forward with evidence sufficient to create a
genuine issue of fact as to whether PPL’s asserted reasons for his discharge were
pretextual. For the reasons set forth above, we will AFFIRM the District Court's grant of
summary judgment in favor of PPL.
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