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Perks v. Firestone Tire & Rubber Co.

decided: December 31, 1979.

ROBERT W. PERKS, PLAINTIFF-APPELLANT
v.
THE FIRESTONE TIRE & RUBBER COMPANY, DEFENDANT-APPELLEE



ON APPEAL FROM THE ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (D.C. Civil No. 77-3217)

Before Gibbons and Higginbotham, Circuit Judges, and Ziegler, District Judge.*fn*

Author: Ziegler

Opinion OF THE COURT

Plaintiff, Robert W. Perks, was an employee at will of defendant, Firestone Tire & Rubber Company (Firestone) until discharged on January 31, 1977. Plaintiff filed a complaint in the Court of Common Pleas of Montgomery County, Pennsylvania, alleging that the discharge was unlawful because it violated the "clear mandate of public policy" of the Commonwealth of Pennsylvania as articulated in Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974).*fn1 The complaint was removed to a federal forum*fn2 and the district court entered summary judgment on behalf of Firestone.

Our review of the record indicates the existence of a genuine issue of material fact with respect to the reason for the discharge and therefore we reverse the order of the district court and remand for further proceedings.

Plaintiff was an employee of Firestone for 30 years. He served as a production coordinator for the four years preceding his discharge at Firestone's plant in Pottstown, Pennsylvania. In that capacity, Perks had numerous contacts with a supplier of Firestone, Tri-State Technical Sales Corporation and its representative, G. Joseph Pilotti.

Sometime in 1976, the auditors of Firestone commenced an investigation concerning allegations that certain employees had accepted gratuities from representatives of suppliers. During the investigation, the auditors conducted two interviews of Pilotti. The initial interview occurred on December 28, 1976. Pilotti admitted that he procured prostitutes for employees of Firestone, but did not mention plaintiff.

The second interview occurred on January 4, 1977. Pilotti related that Perks was one of the employees who utilized the services of a prostitute provided by him. On or about November 10, 1977, over 10 months following the discharge of plaintiff, and approximately three months after suit was filed, Pilotti provided further details for the auditors, stating that plaintiff was advised of the availability of prostitutes at a Chem Show in New York, in December, 1975, and later that evening, Perks admitted accepting the offer. At the time of the second interview, these details were not available to Firestone.

The Company, armed with the results of the two interviews with Pilotti, confronted Perks with the allegations. He denied the charges. As a result, plaintiff's supervisor, Carl J. Kleinert, requested that Perks submit to a polygraph examination to verify the denial. According to evidence adduced by Firestone, the polygraph test was requested to "give (Perks) an opportunity to persuade us that his version of what happened at the Chem Show was accurate. . . . (T)he polygraph test was a final chance for Mr. Perks to persuade us otherwise. . . ."*fn3 Plaintiff refused the gambit and, within one week, he was discharged.

Following discovery, Firestone moved for summary judgment averring that: (1) Perks was an employee at will and subject to discharge at the pleasure of the Company; and (2) plaintiff was terminated for accepting gratuities furnished by a supplier of Firestone in violation of corporate policy. The district court declined to determine whether a discharge for failure to submit to a polygraph examination is violative of Pennsylvania law. Rather, the court held that, as a matter of law, Perks was discharged for transgressing the Company policy concerning gratuities.

We reverse and hold that: (1) the discharge of an employee at will because of a refusal to submit to a polygraph examination required by an employer gives rise to a cause of action for tortious discharge under Pennsylvania law; and (2) the existence of a genuine issue of material fact concerning the reason for plaintiff's discharge precludes the entry of summary judgment.

Pennsylvania law, which is controlling, traditionally followed the common law doctrine that either party may terminate an employment relationship for any reason when the employment is at will. See, Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 21 A. 157 (1891). This harsh principle came under increasing attack, and various courts began to recognize that the economic relationship between the parties required some modification of the unfettered right to discharge.*fn4

The Supreme Court of Pennsylvania re-examined the question in Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). In Geary, a salesman and an employee at will alleged that he was discharged for notifying the company of serious defects in several products marketed by the company. In affirming the dismissal of the complaint, the court indicated that in some circumstances an employee would have a cause of action for wrongful discharge. The court stated:

It may be granted that there are areas of an employee's life in which his employer has no legitimate interest. An intrusion into one of these areas by virtue of the employer's power of discharge might plausibly give rise to a cause of action, ...


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