                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2007

Howell v. PPL Ser Corp
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5074




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"Howell v. PPL Ser Corp" (2007). 2007 Decisions. Paper 1250.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1250


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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    ___________

                                    No. 05-5074
                                    ___________

                                DONALD HOWELL,

                                          Appellant

                                          v.

                          PPL SERVICES CORPORATION
                                  ___________

                   On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (D.C. Civil No. 04-cv-04196)
                  District Judge: The Honorable Eduardo C. Robreno
                                      ___________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 11, 2007

             Before: SMITH, NYGAARD, and HANSEN,* Circuit Judges.

                               (Filed: April 19, 2007)


                                    ___________

                             OPINION OF THE COURT
                                  ___________

NYGAARD, Circuit Judge.


      *Honorable David R. Hansen, Senior Circuit Judge for the Eighth Circuit Court of
Appeals, sitting by designation.
             In this employment discrimination case, Appellant Donald Howell appeals

the District Court's order granting summary judgment to Howell's former employer,

Appellee PPL Services Corporation, (PPL). We will affirm.

                                              I.

             We write only for the parties and briefly describe only those facts essential

to a complete understanding of our analysis. Howell, a fifteen year employee of PPL was

sent to a training seminar in Florida in October of 2002. Howell’s employment with PPL

was terminated in October of 2002 after Howell left the training program in Florida early

without notifying or receiving permission to depart early from his supervisor. PPL

instituted an independent audit of Howell’s actions which concluded among other things,

that Howell had attempted to hide his early departure from PPL by altering a copy of the

parking receipt he submitted for reimbursement to disguise the date upon which he

actually returned. The independent auditors concluded that Howell had violated company

policies regarding reporting time and expense reimbursement, as well as the company’s

policies on conduct and employee integrity.

             Howell filed a complaint and, after the withdrawal of his original counsel,

an amended complaint in the District Court. In this first amended complaint, Howell

alleged discriminatory discharge (Count I), and wrongful discharge in violation of public

policy. The District Court dismissed Howell’s wrongful discharge claim after

determining that Howell could not articulate a public policy of the Commonwealth of

Pennsylvania that had been implicated by his termination. Howell amended his complaint

                                              2
for a second time, adding a claim for disparate impact (Count II) under the Age

Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq.

              In deciding PPL’s motion for summary judgment on the age discrimination

claims, the District Court assumed that Howell had established a prima facie case and that

PPL has produced a legitimate non-discriminatory reason for its actions. Nonetheless, the

District Court, in a bench opinion, held that Howell had failed to produce sufficient

admissible evidence that similarly-situated employees outside a protected class were

treated more favorably or more leniently than Howell for having committed substantially

similar offenses. Appendix at 11. The Court granted PPL’s motion for summary

judgment on Howell’s claim of disparate treatment. Additionally, the District Court

granted summary judgment on Howell’s claim of disparate impact, finding that Howell

failed to identify a specific employment practice, that while neutral on its face,

discriminated against members of the protected class based on age. Howell timely

appealed.1




                                             II.




1.      We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review
of the District Court's grant of summary judgment. Kautz v. Met-Pro Corp., 412 F.3d 463,
466 (3d Cir. 2005).

                                              3
              On appeal, Howell first argues that the District Court erred in dismissing his

claim that he was wrongfully discharged in violation of public policy. Specifically,

Howell maintains that his employment was terminated because he complained to

supervisors about alleged violations of Nuclear Regulatory Commission regulations at

PPL’s nuclear power plant near Berwick, Pennsylvania.

              Although an “employment at will” jurisdiction, the Commonwealth of

Pennsylvania has carved out a limited exception to this principle: an employee is

permitted to bring a cause of action for wrongful discharge where a termination would

violate “a clear mandate of public policy.” McLaughlin v. Gastrointestinal Specialists,

Inc., 750 A.2d 283, 287 (Pa. 2000). The Pennsylvania Supreme Court has held that in

order for the public policy exception to apply, the alleged violation of public policy must

be of Pennsylvania public policy, not solely an alleged violation of federal law. Id. at

289. (“[A] Plaintiff must do more than show a possible violation of a federal statute ...

[and] must allege that some public policy of this Commonwealth is implicated,

undermined, or violated.”). Moreover, the Pennsylvania Supreme Court reserves for itself

the province of deciding what the public policies of the Commonwealth are. That court

has specifically instructed that “we declare the public policy of this Commonwealth by

examining the precedent within Pennsylvania, looking to our own Constitution, court

decisions and statutes promulgated by our legislature.” Id. at 288.

              Here, we agree with the District Court’s determination that Appellant has

failed to clearly indicate or identify any Pennsylvania public policy that would have been

                                              4
violated had he been terminated for complaining about procedures and perceived

violations of NRC regulations in the workplace. “Where the public policy claimed to be

violated is not ‘clear,’ a cause of action for wrongful discharge has not been recognized.”

McGonagle v. Union Fidelity Corp., 556 A.2d 878, 884 (Pa. Super. Ct.1989). Howell

attempts to salvage his claim by citing the federal Energy Reorganization Act of 1974,

and the federal Atomic Energy Act as the sources of the public policy upon which his

claim is predicated. The policies and purposes of these particular federal statutes,

however, are not policies of the Commonwealth of Pennsylvania and as such cannot

provide a foundation for Howell’s claims. See McLaughlin, 750 A.2d at 288. Therefore,

the District Court was correct in finding for PPL on the issue of wrongful discharge.

              We turn next to the ADEA claims. Howell raises both a disparate impact

and a discriminatory discharge claim. We turn first to Howell’s disparate impact claim.

In ADEA, cases, once an employer puts forth a legitimate, nondiscriminatory reason for

an employee's termination, the employee bears the burden of proving that the employer's

reason is merely pretext for a discriminatory motive. Kautz v. Met-Pro Corp., 412 F.3d

463, 466-67 (3d Cir. 2005); Shaner v. Synthes (USA), 204 F.3d 494, 501 (3d Cir. 2000).

Here, the District Court assumed that Howell had established a prima facie case and that

PPL had put forth legitimate, non-discriminatory reasons for his termination. That left it

to Howell to show “ ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of credence.’ “ Kautz, 412 F.3d

                                              5
at 67 (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994)); Shaner 204 F.3d at

501 (quoting Fuentes). Howell may accomplish this by establishing facts from which a

reasonable fact-finder could conclude that the employer's reason “was either a post hoc

fabrication or otherwise did not actually motivate the employment action.” Kautz, 412

F.3d at 67.

              Howell has not put forth any evidence that PPL’s reason for his termination

— violating company policies on time and expenses, and on conduct and employee

integrity — were not the true reason for his termination. The District Court determined

that Howell failed to produce:

              sufficient admissible evidence that similarly-situated
              employees outside a protected class were treated more
              favorably or more leniently than plaintiff for having
              committed substantially similar offenses. The evidence
              produced by the plaintiff consists largely, if not totally, of his
              own understanding of events, which was gained as a result of
              hearsay, or other inadmissible evidence.

App. at 11. Having conducted our own review of the file on appeal and the District

Court's orders and opinion, we find no reason to disturb the Court's ruling on this claim.

              Similarly, the District Court’s resolution of Howell’s disparate impact claim

is affirmed. Howell failed to identify any specific employment practice that, while

neutral on its face, discriminated against members of the protected class because of their

age. The record does not provide any evidence which would permit Howell to identify a

specific employment practice which created an alleged disparate impact.

                                             III.

                                              6
             Howell has simply not come forward with evidence sufficient to create a

genuine issue of fact as to whether PPL’s asserted reasons for his discharge were

pretextual. For the reasons set forth above, we will AFFIRM the District Court's grant of

summary judgment in favor of PPL.




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