Federal judge dismisses presumed whistle-blower complaint for perceived lack of basis

By Nicholas Malfitano | Apr 13, 2016

U.S. District Court for the Eastern District of Pennsylvania  

PHILADELPHIA -- A plaintiff who felt she was retaliated against and unjustly terminated for blowing the whistle on a manager’s improper recording of a colleague’s time card has had her case dismissed in federal court.

The U.S. District Court for the Eastern District of Pennsylvania’s Judge Gerald J. Pappert issued a ruling on Thursday, granting a dismissal motion to defendant Republic Services Inc. Republic argued the facts alleged by plaintiff Erica Bennett in her amended complaint did not substantiate either of her claims for relief.

Per court records, Republic “receives public contracts” and “serves as a solid waste disposal vendor under those contracts with public bodies” in Pennsylvania.

Bennett began her tenure with Republic on July 19, 1999, working as a credit and collections specialist until October 2013, when she was re-assigned to a “dispatch position.” In the dispatch capacity, Bennett “monitored various office functions and assisted in scheduling and dispatching Republic’s solid waste disposal trucks.”

On Oct. 2, 2014, Bennett said she became aware of “clock-in irregularities” with respect to the time card of a truck driver, Harry Pennywell. Around that same time, Bennett also noticed her supervisor and manager, Steve Dilenno, marked Pennywell’s time card that day to reflect that he arrived to work earlier than his actual arrival time. Bennett asserted she and “another employee” noted a discrepancy between Pennywell’s altered arrival time, and his actual arrival time.

Sometime thereafter, Bennett reported this same discrepancy to her supervisor, Anthony Gerace. Bennett averred no disciplinary action was taken against Dilenno in response to her “reporting of time card irregularities and false payroll reports.”

Republic terminated Bennett on Nov. 21, 2014, and Bennett initiated legal action in September -- charging that her termination violated the Whistleblower Law, which protects employees who make reports of “wrongdoing” or “waste” taking place within a company to their employers.

Pappert did not agree with Bennett’s rationale that Dilenno’s allegedly improper marking of Pennywell’s time card constituted “substantial waste.”

“Bennett must allege 'substantial' waste (defining waste as 'an employer’s conduct or omissions which result in substantial abuse). One occurrence of Dilenno marking an earlier than actual arrival time on Pennywell’s time card does not constitute 'substantial abuse,'" Pappert wrote.

“Second, the Act requires that such 'substantial abuse, misuse, destruction or loss of funds or resources' must 'belong to' or be 'derived from [the] Commonwealth,'" the judge added. “Bennett’s response effectively concedes that any potential abuse that could have resulted from Dilenno or Gerace’s actions resulted in an abuse of corporate funds, not Commonwealth funds.”

Pappert indicated the third flaw in Bennett’s complaint was one that was fatal to her complaint.

“Third and finally, Bennett fails to allege any facts that may show a ‘causal connection’ between her report of waste and Republic’s termination of her employment,” Pappert said. “Bennett has proffered no such factual support to raise an inference that her termination had anything to do with her alleged report of waste.”

Pappert said Bennett reported the observed “time clock irregularities” on Oct. 2, 2014 and was fired on Nov. 21, 2014, and “did not allege any facts which purport to connect the two dates or show how or why her termination was related to her report, other than the conclusory allegation that she was terminated in retaliation for her report.”

Bennett’s allegation of wrongful termination under Pennsylvania common law fared no better in the district court.

“An at-will employee may bring a cause of action for wrongful termination 'only in the most limited of circumstances where the termination implicates a clear mandate of public policy in this Commonwealth,'" Pappert wrote. “As Bennett’s termination neither violates the Whistleblower Law, nor implicates a clear mandate of public policy, her common law wrongful termination claim must be dismissed.

“Bennett has already amended her complaint against Republic once. She has not sought leave to amend a second time. Had she done so, leave could not be granted because any further amendments of the complaint would be futile and inequitable to Republic. Due to the fundamental substantive deficiencies in Bennett’s previously amended complaint, further amendment would be futile.”

The plaintiff is represented by Timothy R. Hough of Jaffe & Hough in Philadelphia.

The defendants are represented by Paul C. Lantis and William J. Leahy of Littler Mendelson, also in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-05028

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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