Jon Campisi Oct. 2, 2013, 10:14am


A state appellate court panel has allowed a wrongful termination case

against a well-known building materials manufacturing company to proceed, despite the fact that the complaint had been dismissed at the trial court level.

Three judges with the Pennsylvania Superior Court reversed on Sept. 27 an order by a Montour County judge tossing a complaint against USG Corp. that had been filed by a fired worker.

Christeen Smith sued USG Corp. in June 2012 over her dismissal.

The woman says she was hired by the company despite the fact that she had a criminal conviction on her record, but was suspended and ultimately terminated months later after the defendant claimed it had erred in hiring her because of her criminal record.

Smith contended that her termination violated a Pennsylvania law that restricts the consideration an employer may give to the criminal history of a job applicant.

In its preliminary objections, USG Corp. claimed that the statute in question applies only to hiring and not to decisions to terminate an already-hired employee, the record shows.

In late December of last year, the trial court judge agreed with USG’s lawyers, sustaining the objections and tossing the lawsuit.

The appellate panel wrote that while the state law referenced by the defense does, in fact, address hiring, “it is not clear, nor is it free from doubt, that USG properly considered Smith’s criminal history within the hiring process.

“Moreover,” the panel wrote, “USG was informed of Smith’s criminal record, hired Smith, and then allegedly fired her for something that likely could have prevented Smith’s hiring in the first place.”

Smith had specifically stated in her lawsuit that the company informed her it had “erred in hiring her.”

The appeals judges also noted that they are not aware of Smith’s crime and for what position she was hired.

But because they concluded that the statute in question may apply, “we further disagree with the trial court’s order and conclude that it remains possible that USG violated public policy.”

The panel wrote that the trial court should permit Smith to amend her complaint to include the above-mentioned details.

“Here, the trial court simply denied Smith an opportunity to amend because it concluded that she needed verified allegations and would have to contradict herself,” the appellate ruling states. “We disagree with the trial court’s rationale and conclusion.”

The panel wrote that the trial judge “erroneously concluded” that since the allegation in the complaint is that USG didn’t use “criminal history record information” as that term is defined in the state law regarding prospective employment, and since the section of the law cited in the case effects a prohibition of the use of “criminal history record information,” there could be no violation of the law, the record shows.

The appeals judges reviewed Smith’s complaint, however, and found that the plaintiff never averred that USG did not use criminal history record information as that term is defined under state law.

“In fact, there is no indication what information USG procured or was provided, if any, regarding Smith’s disclosure of a criminal record,” the ruling states. “Nowhere in the complaint does Smith allege that USG utilized information not contemplated under section 9102 [of the statute], and we discern no support for the trial court’s conclusion in this regard.”

An opportunity to amend her complaint would have allowed Smith to set forth dates, provide reasons for dismissal, and attach supporting documentation such as her criminal record, the job description of the position for which she was hired, and documentation regarding dismissal, the appellate panel wrote.

The judges also pointed out that there is no statute of limitations to contend with in the matter, meaning the trial judge’s decision to sustain defense preliminary objections at this juncture was premature.

Superior Court Judges John T. Bender, Jacqueline O. Shogan and John L. Musmanno participated in the decision, which was written by Shogan.

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