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Firing an employee in retaliation for filing a claim under the Pennsylvania Human Relations Act is a violation of public policy and can create a cause of action for an at-will employee, a Pennsylvania common pleas court judge has ruled. Common pleas judges seem to be taking the ball passed on by the state Supreme Court in Shick v. Shirey, and running with it. The Shick court ruled that employees have such a cause of action in the workers’ compensation context. In May, an Allegheny County Common Pleas Court judge said in a case of first impression — Fialla-Bertaini v. Pennysaver Publications of Pennsylvania Inc., — that Pennsylvania does recognize a cause of action for wrongful discharge in retaliation for filing a Wage Payment and Collection Law claim. Now in the latest case, Nazar v. Clark Distribution Systems, Inc., Lackawanna County Common Pleas Court Judge Terrence Nealon said his decision logically followed the course carved out by Shick. “There is no logical basis for permitting an employee who is terminated for filing an unemployment or worker’s compensation claim to pursue a common law wrongful discharge claim, but denying the same rights and recourse to an employee who files a complaint with a different commonwealth agency that was likewise created to afford remedies to Pennsylvania employees,” Nealon said. The claimant, John Nazar, suffered a work-related injury during the course of his employment as a dockworker with Clark Distribution Systems Inc. and has since suffered physical limitations. Nazar claimed that after his injury, Clark tried to compel him to leave his job by harassing him and discriminating against him. In 1998, Nazar filed a complaint with the Pennsylvania Human Relations Commission alleging that Clark had engaged in disability discrimination. He claimed he was terminated in retaliation for filing the claim. In his complaint, Nazar alleged not only disability discrimination under the PHRA, but also a common law claim for wrongful discharge. Clark argued Nazar was barred from filing the common law claim. It said his only recourse was to sue for discriminatory termination under the PHRA. Nazar maintained that his discharge violated public policy. Clark cited Clay v. Advanced Computer Applications Inc., 559 A.2d 917 (Pa. 1989), in which the state Supreme Court held that the PHRA remedy does preclude common law claims for wrongful discharge. But Nealon said what made Nazar’s case different was that his claim was not based on Clark’s alleged discriminatory actions. “Rather, Nazar asserts in Count II of the complaint that he was terminated as a sanction for exercising a statutorily protected right by filing a disability discrimination claim with the PHRC,” Nealon said. “Thus, the question to be decided at this stage is whether the discharge of an employee in retaliation for filing a PHRA claim against an employer is violation of a public policy mandate in Pennsylvania.” In his analysis, Nealon mentioned the recent state Supreme Court decision in McLaughlin v. Gastro-Intestinal Specialists. Although the justices in McLaughlin rejected the employee’s claim for wrongful discharge because it was brought under the federal Occupational Safety and Health Act, they did uphold the doctrine that state statutes can serve as the basis for a common law remedy against an employer, Nealon said. Referencing Shick, the McLaughlin justices said “such a case implicated the policy of the commonwealth because it thwarts the administration of a commonwealth agency and undermines the statutory obligations of the employer and the employee, which a Pennsylvania statute governs.” Looking to the PHRA, Nealon said the Act states that it is the public policy of the commonwealth to “foster the employment of all individuals in accordance with their fullest capacities regardless of their . . . handicap or disability.” Therefore, terminating an employee for exercising his or her rights under the Act is a clear violation of public policy, Nealon said. Clark also asserted that should the court find Nazar’s claim was limited to recovery under the PHRA, then his claim for punitive damages should be dismissed because such damages are not recoverable under the Act. But Nealon said because its preliminary objections in the nature of a demurrer as to the wrongful discharge claim were denied, the demurrer to the punitive damages would also be denied.

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