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An employee who is fired for refusing to dissuade a subordinate from pursuing a workers’ compensation claim may now bring a wrongful discharge claim against his or her employer, a divided Pennsylvania Superior Court has ruled in a case of first impression. In so holding, the court relied on the Pennsylvania Supreme Court’s decision in Shick v. Shirey. In that case, the high court determined that it is a violation of public policy for an employer to terminate an at-will employee for filing a workers’ compensation claim. “If we accept [the defendant's] argument that [the plaintiff] does not have a cause of action for wrongful discharge, our decision would, in effect, allow employers to engage in prohibited conduct through their supervisory employees,” Judge Mary Jane Bowes wrote for the court. “Consequently, we are inclined to carve out an exception to the employment-at-will doctrine to deter such behavior.” Judge John G. Brosky disagreed. In a dissenting opinion, he criticized the majority for expanding the supreme court’s holding in Shick. “Public policy has, to date, been strictly limited to protecting the employee who files the workers compensation claim,” Brosky wrote, “and I am not persuaded that the narrow exception to the doctrine of at-will employment should be extended to co-workers, even one who is related to the injured employee [as was the case here.]“ The decision in Rothrock v. Rothrock Motor Sales was handed down Wednesday. The events giving rise to the case began when plaintiff Douglas Rothrock claimed he was injured on the job at his uncle’s car dealership. Douglas worked under the direct supervision of his father, plaintiff Theodore Rothrock in the company’s body shop. Bruce Rothrock, who is Theodore’s brother, was the owner and president of defendant Rothrock Motor Sales at the time of the subject events. According to the opinion, Douglas allegedly injured himself on the job in April 1992 and filed a claim for workers’ compensation benefits the following month. In June 1992, the plaintiffs claimed, Bruce called Theodore into his office and insisted that Douglas had not been injured at work. According to Theodore’s testimony at trial, Bruce told him that he should have Douglas sign a release to relieve the company of any liability for his injuries. Theodore also testified that Bruce implied failure to do so would result in termination of both Theodore’s and Douglas’ employment, the opinion states. Douglas refused to sign the release. Ultimately, Theodore and Douglas claimed they were fired as a result of the workers’ compensation claim. Bruce, the court said, testified at trial that he had not threatened to fire Theodore or Douglas due to the workers’ compensation claim. On the contrary, he asserted that both had left their jobs voluntarily, or that in the alternative, Theodore and Douglas were fired for misconduct. The parties stipulated that Douglas prevailed on his workers’ compensation claim, Bowes wrote. Also, Theodore had successfully collected unemployment benefits in an action contested by Rothrock Motor Sales. Apparently, during the unemployment hearing, the defendant produced two disciplinary warning slips signed by Theodore before he was fired, the opinion states. Theodore denied seeing or signing the slips, and was permitted to introduce the slips at trial. A handwriting expert testified that Theodore’s signatures on the slips had been forged, the court said. Curiously, the jury determined that Rothrock Motor Sales had not fired Douglas. But interestingly, the jury did find that Theodore’s employment was terminated because Douglas refused to abandon his workers’ compensation claim. They awarded Theodore $192,000 in compensatory damages. Defendant’s post-trial motions were denied and the instant appeal followed. “The Superior Court, I think, was convinced that if it had ruled the other way, then the rule that you can’t fire somebody for pursuing rights under a workers’ compensation claim would be without teeth because you could circumvent that by having a supervisor do your dirty work for you,” said Daniel S. Weinstock of Philadelphia-based Feldman, Shepherd, Wohlgelernter & Tanner, who represented the plaintiffs. Carl D. Buchholz III of Philadelphia’s Rawle & Henderson handled the appeal for the defendant. He said that under the superior court’s holding, anyone could theoretically say he or she was fired due to a subordinate workers’ compensation claim. “You create third party litigation which I think the supreme court never intended,” he said. Buchholz opined that the superior court’s opinion would create numerous gray areas as to which employees may or may not be fired. In considering the appeal, the court first noted that the judiciary should only expand an existing cause of action when there exists a “positive, well-defined, universal public sentiment, deeply integrated in the beliefs of the people and in their conviction of what is just and right and in the interests of the common good.” Here, the exception created for supervisory employees is “warranted by the public policy embodied in the Workers’ Compensation Act … and prevailing Supreme Court precedent,” the opinion states. The judges turned to Shick for support: “Therein, the Court, firmly relying upon the legislative pronouncements embodied in the [Workers' Compensation] Act, held that ‘The Workers’ Compensation Act does provide a basis for . . . finding that termination of an at-will employee for filing a workers’ compensation claim violates public policy.’” The act, the court noted citing Shick, is the only means for an employee to obtain compensation for injuries and serves as a substitute for common-law tort actions. “The exclusivity of the statutory remedy is the historical quid pro quo that employers receive in return for being subjected to a no-fault system of compensation for an employee’s injuries,” the opinion states. ” … The Shick Court determined that the ‘historical balance would be disrupted if the employer could terminate an employee for filing a workers’ compensation claim.’ This balance would be disrupted, reasoned the Court, since employees will not file claims for compensation if they can be fired, relieving the employer of its obligations under the Act.” The superior court found that the same public policy concerns enumerated in Shick were present in Rothrock. “If we were to allow an employer to fire with impunity a supervisor who refuses to interfere with the statutory right to obtain workers’ compensation benefits, an employer could insulate itself from liability for the same violation of the aforementioned public policy,” Bowes wrote. ” … It is repugnant to that same public policy and anathema to the historical balance inherent in the workers’ compensation law to allow an employer to evade public policy by firing someone else who refuses to engage in what has been determined to be an unlawful act.” The court articulated a four-part test set out by the Court of Appeals of Washington when that court addressed the same issue. When the judiciary addresses the issue faced here, the court wrote, it inquires: Whether a clear public policy exists; Whether that policy will be jeopardized unless the activity at issue is protected; Whether employers in general have an overriding justification for wanting to use the activity in issue as a factor affecting the decision to discharge; and Whether the particular employee’s activity in the case was a substantial factor in the decision to discharge. In Rothrock, the court found that, as to the first element, Pennsylvania has recognized a clear public policy against firing an employee because he filed a workers’ compensation claim. Second, the court said, the policy would be imperiled if employers were permitted to insulate themselves from liability by firing employees for refusing to carry out unlawful directives. Third, the court found that employers are not justified in considering an employee’s refusal to perform an unlawful order when deciding whether to fire that employee. And finally, the jury had already found that Theodore was fired for refusing to dissuade Douglas, the opinion states. After rejecting two more arguments by the defendant based upon terminating employment for a legitimate reason and an objection to the introduction of the disciplinary slips, the court affirmed the trial court’s refusal to grant judgment notwithstanding the verdict. In his dissent, Brosky highlighted a concurring opinion in Shick. The concurrence, he said, emphasized the fact that the high court had not created or expanded any cause of action. “I must reiterate our Supreme Court’s recent caution in Shick that any public policy exception arises solely by reference to laws and legal precedent, and not from ‘general considerations of supposed public interest,’” Brosky wrote. The judge found that extending a wrongful termination claim to people in Theodore’s position has no clear basis in the Workers’ Compensation Act or any other legal precedent. “While I am not unsympathetic to Ted’s belief that he was unfairly placed in an awkward position, and am cognizant that some facets of general public interest might favor extending protection to him under these unique factual circumstances, such considerations are not sufficient,” Brosky wrote. “The fact remains that his cause of action must be rooted in the law. … Absent a clear mandate of public policy in this Commonwealth that third persons should also benefit from [ Shick's] narrow exception to the at-will employment doctrine, I conclude that his claim must necessarily fail.” Buchholz said that particularly in light of Brosky’s dissent, he would strongly recommend that his client appeal the superior court’s decision.

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