Pennsylvania Record

Tuesday, September 17, 2019

UPS prevails in wrongful termination suit arising from ‘stink bomb’ rite of passage controversy

By Jon Campisi | Jan 9, 2014

A judge has granted summary judgment to UPS in a wrongful termination

case against the delivery company that was brought by a former employee who contended he was let go for refusing to give false evidence during an internal grievance proceeding.

In a Jan. 2 order, U.S. District Judge L. Felipe Restrepo entered judgment in favor of the United Parcel Service in litigation initiated by William G. Ward, who claimed in a civil action that he was fired from his job because he refused to sign a notarized affidavit saying that employee Erik Diem was responsible for setting off a “stink bomb” inside a UPS van parked at the company’s depot at Philadelphia International Airport.

Diem had apparently admitted responsibility for the incident and was subsequently fired.

He ultimately grieved his termination.

It was during that process that Ward, a UPS supervisor, was asked by his superiors to sign the notarized affidavit, but he refused, because he claims he did not know whether Diem or someone else set off the stink bomb.

The court record shows that discharging stink bombs in UPS vans was a sort of rite of passage for new delivery drivers back in 2006 and 2007.

Three of Ward’s co-plaintiffs in the litigation – James McQuade, Jovanny Padin and Vasken Sarkahian – alleged they were denied promotions and otherwise disciplined by UPS for supporting Ward.

Ward ended up being fired from his job in late June 2007, allegedly for failing to timely load an airplane.

Ward, however, claimed he was actually fired for refusing the sign the false affidavit.

The plaintiffs initially brought their wrongful termination suit in state court, but UPS removed the action to the Eastern District of Pennsylvania on the basis of diversity of citizenship.

In his memorandum, Restrepo determined that both Ward and Sarkahian’s claims couldn’t move forward because they are time-barred.

Lawyers for UPS maintained that the claims were subject to Pennsylvania’s two-year statute of limitations for such tort actions; the plaintiffs countered that a four-year statute of limitations applicable to contract claims should apply.

The judge, however, wrote that Pennsylvania courts have “nonetheless classified wrongful discharge as a tort.”

The alleged injuries, the judge wrote, took place no later than the end of 2007, when both Ward and Sarkahian both had ended their respective employment with UPS, and the plaintiffs didn’t file suit until June 2011.

“There is no dispute of material fact,” the judge wrote. “UPS is entitled to judgment as a matter of law with respect to Ward and Sarkahian’s claims.”

Restrepo also ruled that plaintiffs McQuade and Padin failed to state a claim, writing that to prevail on a wrongful discharge claim, an employee must prove that his or her firing “implicates a clear mandate of public policy in [Pennsylvania].”

“Neither McQuade nor Padin has alleged that he was terminated at all,” the judge wrote.

McQuade, for one, apparently left his job after suffering a stroke, and it is unclear whether Padin ever ceased working for UPS or if he still does.

“The plaintiffs urge the Court to recognize a ‘wrongful adverse action’ claim on the basis that a materially adverse employment action can support a Title VII claim … but the Court will decline that invitation,” the judge wrote. “The plaintiffs have identified no Pennsylvania case suggesting or supporting a common-law claim for failure to promote (or other adverse employment action short of discharge) in contravention of public policy. The Court is not at liberty to invent one.”

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