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Borse v. Piece Goods Shop

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


filed: May 13, 1992; As Amended May 29, 1992.

SARAH BORSE, APPELLANT
v.
PIECE GOODS SHOP, INC.

On Appeal From the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil No. 90-05780)

Before: Becker, Scirica, and Roth, Circuit Judges

Author: Becker

Opinion OF THE COURT

BECKER, Circuit Judge.

Plaintiff Sarah Borse brought suit against her former employer, Piece Goods Shop, Inc. ("the Shop"), in the district court for the Eastern District of Pennsylvania. She claimed that, by dismissing her when she refused to submit to urinalysis screening and personal property searches (conducted by her employer at the workplace pursuant to its drug and alcohol policy), the Shop violated a public policy that precludes employers from engaging in activities that violate their employees' rights to privacy and to freedom from unreasonable searches. Pursuant to Federal Rule of Civil Procedure 12(b)(6), the district court dismissed her complaint for failure to state a claim on which relief could be granted. This appeal requires us to decide whether an at-will employee who is discharged for refusing to consent to urinalysis screening for drug use and to searches of her personal property states a claim for wrongful discharge under Pennsylvania law.

Because we predict that, under certain circumstances, discharging a private-sector, at-will employee for refusal to consent to drug testing and to personal property searches may violate the public policy embodied in the Pennsylvania cases recognizing a cause of action for tortious invasion of privacy, and because the allegations of Borse's complaint are not sufficient for us to determine whether the facts of this case support such a claim, we will vacate the district court's order and remand with directions to grant leave to amend.

I. THE ALLEGATIONS OF THE COMPLAINT

Because of the procedural posture of this case, we begin with a summary of the allegations of the complaint. Borse was employed as a sales clerk by the Piece Goods Shop for almost fifteen years. In January 1990, the Shop adopted a drug and alcohol policy which required its employees to sign a form giving their consent to urinalysis screening for drug use and to searches of their personal property located on the Shop's premises.

Borse refused to sign the consent form. On more than one occasion, she asserted that the drug and alcohol policy violated her right to privacy and her right to be free from unreasonable searches and seizures as guaranteed by the United States Constitution. The Shop continued to insist that she sign the form and threatened to discharge her unless she did. On February 9, 1990, the Shop terminated Borse's employment.

The complaint alleges that Borse was discharged in retaliation for her refusal to sign the consent form and for protesting the Shop's drug and alcohol policy. It asserts that her discharge violated a public policy, embodied in the First and Fourth Amendments to the United States Constitution, which precludes employers from engaging in activities that violate their employees' rights to privacy and to freedom from unreasonable searches of their persons and property. Plaintiff seeks compensatory damages for emotional distress, injury to reputation, loss of earnings, and diminished earning capacity. She also alleges that the discharge was willful and malicious and, accordingly, seeks punitive damages.

II. OVERVIEW OF THE PUBLIC POLICY EXCEPTION TO THE EMPLOYMENT-AT-WILL DOCTRINE IN PENNSYLVANIA

A.

Choice of Law and Scope of Review

The district court's subject-matter jurisdiction was based on diversity of citizenship pursuant to 28 USC § 1332. The jurisdiction of this court is founded upon 28 USC § 1291.

Federal courts sitting in diversity must apply the substantive law of the state whose laws govern the action. Erie Railroad Co. v Tompkins, 304 U.S. 64, 78, 58 S Ct 817, 822, 82 L. Ed. 1188 (1938). Our review of the district court's prediction and application of Pennsylvania law is plenary. Smith v Calgon Carbon Corp., 917 F.2d 1338, 1345 (3d Cir 1990), cert denied, 111 S Ct 1597 (1991). Because the Pennsylvania Supreme Court has not addressed the question whether discharging an at-will employee who refuses to consent to urinalysis and to searches of his or her personal property located on the employer's premises violates public policy, we must predict how that court would resolve the issue should it be called upon to do so. Smith, 917 F.2d at 1341; Robertson v Allied Signal, Inc., 914 F.2d 360, 364 (3d Cir 1990). Although decisions by Pennsylvania's intermediate appellate courts are not conclusive in predicting how the state's highest court would decide an issue, they suggest how that court might decide and may constitute presumptive evidence of state law in appropriate circumstances. McGowan v University of Scranton, 759 F.2d 287, 291 (3d Cir 1985).

B.

Recognition of the Exception by the Pennsylvania Supreme Court

Ordinarily, Pennsylvania law does not provide a common-law cause of action for the wrongful discharge of an at-will employee. Rather, an employer "may discharge an employee with or without cause, at pleasure, unless restrained by some contract." Henry v Pittsburgh & Lake Erie Railroad Co., 139 Pa 289, 21 A 157, 157 (1891) (quoted in Smith, 917 F.2d at 1341).

In Geary v United States Steel Corp., 456 Pa 171, 319 A2d 174 (1974), however, the Pennsylvania Supreme Court recognized the possibility that an action for wrongful discharge might lie when the firing of an at-will employee violates public policy. Geary, a salesperson, complained to his immediate superiors about the safety of his employer's product. After being told to "follow directions," Geary took his complaints to the vice-president in charge of the product. As a result, the company withdrew the product from the market, but discharged Geary.

Geary argued that an exception to the at-will doctrine was warranted in his case because his dismissal was contrary to public policy. The Pennsylvania Supreme Court disagreed, relying upon two factors to decide that Geary's case did not merit an exception. First, the court observed that Geary was not responsible for monitoring product safety and that he did not possess expertise in that area. 319 A2d at 178-79. Second, the court noted that Geary had violated the internal chain of command by pressing his concerns before the vice-president. Id at 179-80.

Summarizing its decision, 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, particularly where some recognized facet of public policy is threatened. . . . However, we hold only that where the complaint itself discloses a plausible and legitimate reason for terminating an at-will employment relationship and no clear mandate of public policy is violated thereby, an employee at will has no right of action against his employer for wrongful discharge.

Id at 180. Courts construing Pennsylvania law have interpreted this language as implicitly recognizing that a cause of action for wrongful discharge exists in appropriate circumstances, even though the court refused to uphold such an action on the facts in Geary. See, for example, Woodson v AMF Leisureland Centers, Inc., 842 F.2d 699 (3d Cir 1988) (upholding cause of action). See also Field v Philadelphia Electric Co., 388 Pa Super 400, 565 A2d 1170 (1989) (same); Hunter v Port Authority of Allegheny County, 277 Pa Super 4, 419 A2d 631 (1980) (same); Reuther v Fowler & Williams, Inc., 255 Pa Super 28, 386 A2d 119 (1978) (same).

The Pennsylvania Supreme Court did not revisit the validity of the public policy exception to the employment-at-will doctrine until fifteen years after Geary. In Clay v Advanced Computer Applications, Inc., 522 Pa 86, 559 A2d 917 (1989), a married couple employed by the same company alleged that they were fired because the wife rejected the sexual advances of a company manager. The court held that their claims were barred because they had failed to seek recourse under the Pennsylvania Human Relations Act, which provides a statutory remedy for wrongful discharges based upon sexual harassment. The court did not deny that it had recognized a public policy exception to the employment-at-will doctrine in Geary, but it did stress the narrowness of that exception. The court stated:

As a general rule, there is no common law cause of action against an employer for termination of an at-will employment relationship. . . . Exceptions to this rule have been recognized only in the most limited of circumstances, where discharges of at-will employees would threaten clear mandates of public policy. . . . Nevertheless, inasmuch as appellees failed to pursue their exclusive statutory remedy for sexual harassment and discrimination in the workplace, they are precluded from relief.

Id at 918-19 (citations omitted).*fn1

One year later, the Pennsylvania Supreme Court returned to the issue again. In Paul v Lankenau Hospital, 524 Pa 90, 569 A2d 346 (1990), a doctor alleged that a hospital had forced him to resign because he removed five refrigerators, which he claimed that he was authorized to take. He argued that because he had permission to remove the refrigerators, the hospital was estopped from discharging him for taking them. The court held that the doctrine of equitable estoppel is not an exception to the employment-at-will doctrine. Id at 348. The court also appeared to question the validity of the public policy exception, but it did not expressly inter it. Regarding Geary, the court stated:

The majority in a 4-3 decision held that while some exceptions to the at-will employment doctrine might exist, especially in public policy areas, "this case does not require us to define in comprehensive fashion the perimeters of this privilege, and we decline to do so." . . . The Court specifically answered in the negative to the central question of "whether the time has come to impose judicial restraints on an employer's power of discharge."

Id at 348 (citations and footnote omitted). The Pennsylvania Supreme Court has not addressed the public policy exception since Paul.

C.

Application of the Exception by the Pennsylvania Superior Court

The Pennsylvania Superior Court first upheld a wrongful discharge cause of action based on the public policy exception in Reuther v Fowler & Williams, Inc., 255 Pa Super 28, 386 A2d 119 (1978). Reuther alleged that he was discharged for missing work for a week in order to serve jury duty. The court first observed that "the jury system and jury service are of the highest importance to our legal process." 386 A2d at 120. As evidence of the strong public policy encouraging jury service, the court then cited the Pennsylvania Constitution's guarantee of the right to trial by jury, a Pennsylvania statute providing that summonses for jury service shall be deemed summonses of the court, another Pennsylvania statute providing that persons who fail to appear for jury duty when summoned may be fined, and the United States Supreme Court's identification of trial by jury as "fundamental to the American scheme of Justice." Duncan v Louisiana, 391 U.S. 145, 149, 88 S Ct 1444, 1447, 20 L. Ed. 2d 491 (1968). The court thus concluded that "the necessity of having citizens freely available for jury service is just the sort of 'recognized facet of public policy' alluded to by our Supreme Court in Geary." 386 A2d at 121. Accordingly, the court held that Reuther had stated a cause of action.

The Superior Court also upheld a cause of action for wrongful discharge in Hunter v Port Authority of Allegheny County, 277 Pa Super 4, 419 A2d 631 (1980). Hunter alleged that the Port Authority had denied his application for employment as a bus driver because of a thirteen-year old assault conviction for which he had since been pardoned. The court noted that the federal courts had held that banning a person convicted of past misconduct from public employment violates federal law unless the ban is rationally related to a legitimate governmental objective. The court also observed that the Pennsylvania legislature had recently enacted a statute limiting an employer's reliance upon criminal records when making employment decisions. The court then turned to Pennsylvania Supreme Court decisions interpreting Article I, section 1 of the Pennsylvania constitution*fn2 as prohibiting the government from interfering with the "right to engage in any of the common occupations of life" without a reasonable relationship to a legitimate governmental objective. 419 A2d at 635. In reliance upon those decisions and "'the deeply ingrained public policy of this State . . . to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders,'" id at 636 [n5a] (quoting Secretary of Revenue v John's Vending Corp., 453 Pa 488, 309 A2d 358, 362 (1973)), the court held that Hunter had stated a cause of action under Article I, section 1 of the Pennsylvania Constitution.

Field v Philadelphia Electric Co., 388 Pa Super 400, 565 A2d 1170 (1989), is the most recent Superior Court decision upholding a wrongful discharge cause of action based on the public policy violation. Plaintiffs, a married couple employed by companies that provided services to the Philadelphia Electric Company ("PECO"), alleged that they were discharged because the husband had notified the Nuclear Regulatory Commission that PECO had violated the Commission's regulations. The court held that the alleged discharge contravened public policy because federal law required Field to report the violations, nothing in the complaint indicated that he had bypassed the internal chain of command, Field was an expert in the area, and the public potentially was endangered by the violations. Specifically, the court reasoned:

Since a statutory duty to act is present, since discharge was based on performance of that statutory duty, and since performance of that duty directly and clearly protects public safety, we believe a cause of action for wrongful discharge exists in this case.

565 A2d at 1180.

The Superior Court's first statement of general principles for determining whether a cause of action for wrongful discharge exists (in contrast to the case-by-case application of Geary) came in a decision in which it rejected the plaintiff's claim. In Yaindl v Ingersoll-Rand Co., 281 Pa Super 560, 422 A2d 611 (1980), the court explained that the employer's interest in running its business as it sees fit must sometimes yield to the employee's interest in making a living and to the public's interest in ensuring that the employer does not act abusively. 422 A2d at 617. The court then analogized the wrongful discharge action to an action for intentional interference with the performance of a contract and reasoned that in determining whether a discharge is wrongful, it should consider the same factors that courts consider in assessing whether an intentional interference with the performance of a contract is improper. Id at 618.*fn3 Specifically, the court stated that the "employer's interest in running its business, its motive in discharging [the employee] and its manner of effecting the discharge, and any social interests or public policies that may be implicated in the discharge" must be "balanced against [the employee's] interest in making a living." Id at 620.

Yaindl appeared to expand the public policy exception dramatically. When an employer arbitrarily discharges an employee, the employee's interest in earning a living will usually outweigh the employer's interest. Therefore, because Yaindl requires the court to balance the employee's interest in earning a living against the employer's interest, it could be read as establishing a just cause requirement for discharging an at-will employee. See Comment, The Role of Federal Courts in Changing State Law: The Employment at Will Doctrine in Pennsylvania, 133 U Pa L Rev 227, 251 (1984) (reading Yaindl in this manner).

The Yaindl test proved short-lived, however; the court reformulated it only four years later in Cisco v United Parcel Services, Inc., 328 Pa Super 300, 476 A2d 1340 (1984). See Rinehimer v Luzerne County Community College, 372 Pa Super 480, 539 A2d 1298, 1301 (1988) (Cisco "redefined the Yaindl balancing test"). Rather than balance the individual employee's right to earn a living against the individual employer's interests, Cisco restored the focus on public policy. It stated:

First, we must discern whether any public policy is threatened [by the discharge of an at-will employee]; second, even when an important public policy is involved, an employer may discharge an employee if he has separate, plausible and legitimate reasons for doing so.

476 A2d at 1343.

In addition to retaining the focus on public policy, subsequent decisions by the Superior Court have stressed that the public policy allegedly violated by the discharge must be clearly stated. For example, in Turner v Letterkenny Federal Credit Union, 351 Pa Super 51, 505 A2d 259 (1985), the court explained that Geary held that where no clear mandate of public policy is violated by a termination, an employee has no right to action against his employer. The [ Geary ] court made clear that an essential element in permitting a cause of action for wrongful discharge was a finding of a clearly defined mandate of public policy.

505 A2d at 260 (emphasis added). The court further stated that Geary and subsequent cases demonstrate a pattern of favoring the employer's interest in running its business. . . . To overcome the employer's interest in running a business, the employee must show a violation of a clearly mandated public policy which "strikes at the heart of a citizen's social right, duties, and responsibilities."

Id at 261 (emphasis added) (quoting Novosel v Nationwide Ins. Co., 721 F.2d 894, 899 (3d Cir 1983)). See also Rinehimer, 539 A2d at 1302 (Turner noted that employee had to show a violation of a clearly mandated public policy) (emphasis in original); id at 1304 (specificity and clarity necessary to sustain wrongful discharge action); McGonagle v Union Fidelity Corp., 383 Pa Super 223, 556 A2d 878, 884 (1989), appeal denied, 545 Pa 584, 575 A2d 115 (1990) ("Where the public policy claimed to be violated is not 'clear,' a cause of action for wrongful discharge has not been recognized."); 556 A2d at 885 ("Unless an employee identifies a 'specific' expression of public policy violated by his discharge, it will not be labelled as wrongful and within the sphere of public policy.").

In sum, the Superior Court continues to interpret Pennsylvania law as recognizing the public policy exception, but its most recent decisions emphasize that the exception is a narrow one. See Burkholder v Hutchison, 403 Pa Super 498, 589 A2d 721, 723 (1991) (characterizing exception as "extremely narrow"); Yetter v Ward Trucking Corp., 401 Pa Super 467, 585 A2d 1022, 1025 (1991) (exception recognized in "only the most limited of circumstances") (quoting Paul, 569 A2d at 346). The public policy violated must be clear and specific before the court will uphold the cause of action.

D. Third Circuit Opinions Applying the Public Policy Exception under Pennsylvania Law

In a series of cases decided after Geary, but before Clay and Paul, this court read Geary as recognizing a public policy exception to the employment-at-will doctrine. Woodson v AMF Leisureland Centers, Inc., 842 F.2d 699 (3d Cir 1988); Novosel v Nationwide Ins. Co., 721 F.2d 894 (3d Cir 1983); Bruffett v Warner Communications, Inc., 692 F.2d 910 (3d Cir 1982); Perks v Firestone Tire & Rubber Co., 611 F.2d 1363 (3d Cir 1979). In our most recent case on the issue, Smith v Calgon Carbon Corp., 917 F.2d 1338 (3d Cir 1990), cert denied, 111 S Ct 1597 (1991), we acknowledged that Clay and Paul cast some doubt on interpreting Geary as recognizing the public policy exception, but we concluded that in the absence of a clear statement by the Pennsylvania Supreme Court to the contrary or other persuasive evidence of a change in Pennsylvania law, we are bound by the holdings of previous panels of this court.

Id at 1343 (emphasis in original).

As we have noted above, the Pennsylvania Supreme Court has not addressed the public policy exception since its decision in Paul. We are aware of no "persuasive evidence of a change in Pennsylvania law." As we have also explained, the Pennsylvania Superior Court continues to interpret Pennsylvania law as recognizing the public policy exception. Accordingly, we continue to interpret Geary as recognizing a cause of action for wrongful discharge when dismissal of an at-will employee violates a clear mandate of public policy.

III. SOURCES OF PUBLIC POLICY

In order to evaluate Borse's claim, we must attempt to "discern whether any public policy is threatened" by her discharge. Cisco, 476 A2d at 1343.*fn4 As evidence of a public policy that precludes employers from discharging employees who refuse to consent to the practices at issue, Borse primarily relies upon the First and Fourth Amendments to the United States Constitution and the right to privacy included in the Pennsylvania Constitution. As will be seen, we reject her reliance on these constitutional provisions, concluding instead that, to the extent that her discharge implicates public policy, the source of that policy lies in Pennsylvania common law.

A. Constitutional Provisions

1. The United States Constitution

Although the Supreme Court has made clear that the Constitution proscribes only the government from violating the individual's right to privacy, and to freedom from unreasonable searches, Skinner v Railway Labor Executives Association, 489 U.S. 602, 109 S Ct 1402, 1411, 103 L. Ed. 2d 639 (1989) (Fourth Amendment does not apply to searches by private party), Borse argues that our decision in Novosel v Nationwide Insurance Co., 721 F.2d 894 (3d Cir 1983), permits us to consider the public policies embodied in the First and Fourth Amendments despite the lack of state action. In Novosel, defendant Nationwide instructed its employees to participate in its effort to lobby the Pennsylvania House of Representatives, which was then considering an insurance reform act. Specifically, Nationwide directed its employees to clip, copy, and obtain signatures on coupons bearing the insignia of the Pennsylvania Committee for No-Fault Reform. Novosel alleged that he was discharged for refusing to participate in the lobbying effort and for privately stating opposition to his employer's political stand.

In response to Novosel's claim, Nationwide argued that a wrongful discharge action depends upon the violation of a statutorily recognized public policy. We disagreed. We observed that "both Reuther and Hunter allowed causes of action to be implied directly from the Pennsylvania Constitution." Id at 898. We also pointed out that " Hunter further noted that Pennsylvania courts allow direct causes of action under the Constitution regardless of legislative action or inaction." Id (citation omitted). After noting that the public policy exception applies only in the absence of statutory remedies, we reasoned:

Given that there are no statutory remedies available in the present case and taking into consideration the importance of the political and associational freedoms of the federal and state Constitutions, the absence of a statutory declaration of public policy would appear to be no bar to the existence of a cause of action. Accordingly, a cognizable expression of public policy may be derived in this case from either the First Amendment of the United States Constitution or Article I, Section 7 of the Pennsylvania Constitution.*fn5

Id at 899.

In deciding not to extend Novosel to Borse's claim, the district court remarked upon the Pennsylvania Superior Court's reluctance to rely upon constitutional provisions as sources of public policy. According to the district court, the Superior Court has never upheld such an action. The district court also noted that, although the Superior Court "has formulated a list of appropriate sources of public policy," its list does not include constitutional provisions. Moreover, the district court observed that in Booth v McDonnell Douglas Truck Services, Inc., 401 Pa Super 234, 585 A2d 24, appeal denied, 597 A2d 1150 (Pa 1991), the Superior Court refused to uphold a wrongful discharge action that relied upon a constitutional provision as a source of public policy because, among other reasons, plaintiff made no allegation of state action. The district court reasoned that the Superior Court's requirement of state action in Booth "is no less applicable to [Borse's] cause of action under policies manifested in the First and Fourth Amendments of the United States Constitution."

To the extent that the district court's opinion suggests that a constitutional provision may never serve as a source of public policy in Pennsylvania wrongful discharge actions, we disagree. Although the Superior Court has never upheld a wrongful discharge cause of action that depended upon a public policy stated solely in a constitutional provision, two of its three cases upholding wrongful discharge causes of action relied upon constitutional provisions as evidence of public policy. See Hunter, 419 A2d at 635 (relying upon Pennsylvania Constitution); Reuther, 386 A2d at 121 (looking to United States Constitution). Moreover, unlike the district court, we do not read an intent to proscribe reliance on constitutional provisions from the "list of appropriate sources of public policy" quoted in Cisco.*fn6 As the district court observed, that list does not explicitly include constitutional provisions. Yet nothing in Cisco indicates that the Superior Court intended it to serve as an exhaustive enumeration of the sources that courts may consider as evidence of public policy. In contrast, a more recent decision by that court expressly contemplates the use of constitutional provisions as sources of public policy. In Scott v Extracorporeal Inc., 376 Pa Super 90, 545 A2d 334 (1988), the court stated: "It is generally accepted that to be actionable, the asserted public policy must be one which is already articulated in law or a constitutional provision." 545 A2d at 342.

Even though the district court may have overestimated the Superior Court's hostility to reliance upon constitutional provisions as sources of public policy, it correctly refused to extend Novosel to Borse's claim. As the district court observed, the Superior Court has refused to extend constitutional provisions designed to restrict governmental conduct in the absence of state action. One year after Novosel was decided, the Superior Court refused to import constitutional principles into a wrongful discharge action against a private employer. In Cisco, a worker employed by United Parcel Services ("UPS") to deliver packages was charged with theft in connection with a routine delivery. While the charges were pending, UPS insisted that Cisco resign. Even though Cisco was later acquitted by a jury, UPS refused to reinstate him.

Cisco identified the public policy allegedly violated by the discharge as a criminal defendant's right to a presumption of innocence. Specificially, he argued that the presumption becomes meaningless if an individual may be discharged merely because of an accusation. The court observed:

While the full panoply of rights incident to a criminal defendant were entitlements of [Cisco] in his trial experience, including the right to be presumed innocent until proven guilty, these rights which are ensured by both the United States and Pennsylvania Constitutions are not necessarily meant to, nor can they[] be, superimposed onto an accused's remaining life experiences.

476 A2d at 1344. Thus, Cisco refused to apply constitutional restrictions on state action to a discharge by a private employer.

The court took the same approach in Martin v Capital Cities Media, Inc., 354 Pa Super 199, 511 A2d 830 (1980), in which a newspaper fired an employee for placing a classified advertisement in a competing newspaper. The employee argued that the discharge violated public policy because it penalized her for exercising her right to free speech under the Pennsylvania Constitution. The court disagreed, reasoning that "while the constitutional right of free speech is accorded a person who advertises, these rights are not meant to be, nor can they be, superimposed and extended to all other aspects of his life." Id at 844. See also Veno v Meredith, 357 Pa Super 85, 515 A2d 571 (1986) (relying on same reasoning to reject wrongful discharge claim of newspaper editor fired for publishing article criticizing Judge).

The Superior Court reiterated the importance of the state action requirement just last year. In Booth, plaintiff alleged that his employer discharged him in order to avoid paying a commission due him. He argued that the discharge violated the public policy enunciated in Article I, section 17 of the Pennsylvania Constitution, which prohibits laws impairing the obligations of contracts. The Superior Court disposed of the argument on the ground that the constitutional provision did not apply because no allegation of state action had been made. 585 A.2d at 28.

The Pennsylvania Supreme Court has not considered the propriety of applying constitutional principles to wrongful discharge actions against private employers. Its most recent decisions regarding the cause of action admonish us, however, that the public policy exception applies "only in the most limited of circumstances," Paul, 569 A2d at 348 (quoting Clay, 559 A2d at 918). Moreover, even though Cisco, Martin, Veno, and Booth did not explicitly address Novosel 's reliance upon a constitutional provision in the absence of state action, the clear trend of those cases indicates that the Pennsylvania courts would be highly unlikely to extend Novosel.

Novosel 's holding (i.e., that using the power of discharge to coerce employees' political activity violates public policy) is not at issue here and thus we need not decide whether the recent Pennsylvania cases constitute such "persuasive evidence of a change in Pennsylvania law" that we are free to disregard it. See Smith, 917 F.2d at 1343. Instead, we need only decide whether to extend the approach taken in Novosel. In light of the narrowness of the public policy exception and of the Pennsylvania courts' continuing insistence upon the state action requirement, we predict that if faced with the issue, the Pennsylvania Supreme Court would not look to the First and Fourth Amendments as sources of public policy when there is no state action. Accordingly, we decline to extend the approach taken in Novosel to this case.

2. The Pennsylvania Constitution

Although Borse's complaint did not rely upon the Pennsylvania Constitution as a source of public policy, the parties submitted supplemental briefs on this issue at our request. Article I, section 1 of the Pennsylvania Constitution explicitly protects the right of privacy.*fn7 See In re June 1979 Allegheny County Investigating Grand Jury, 490 Pa 143, 415 A2d 73, 77 (1980) (" Allegheny Grand Jury "). On two occasions, the Pennsylvania Supreme Court has held that court-ordered disclosure of personal information implicates the right of privacy protected by the Pennsylvania Constitution. See Allegheny Grand Jury, 415 A2d at 77-78 (disclosure of medical information); In re "B", 482 Pa 471, 394 A2d 419, 425 (1978) (disclosure of psychiatric records).

That court has not specifically decided whether the right of privacy protected by the Pennsylvania Constitution extends to private actors. The court has observed, however, that:

Article 1 is entitled "Declaration of Rights" and all of the first twenty-six sections of Article 1 which state those specific rights, must be read as limiting the power of government to interfere with the rights provided therein. . . . The first twenty-six sections of Article 1 . . . merely contain a limitation on the powers of government.

Commonwealth v National Gettysburg Battlefield Tower, Inc., 454 Pa 193, 311 A2d 588, 592 (1973). Accordingly, we predict that if faced with the issue, the Pennsylvania Supreme Court would hold that the right of privacy protected by the Pennsylvania Constitution does not encompass invasions of privacy committed by private actors. Therefore, we also predict that the Pennsylvania courts would not look to that constitutional provision as evidence of public policy in a wrongful discharge action against a private employer.

B. Pennsylvania Common Law

Although we have rejected Borse's reliance upon constitutional provisions as evidence of a public policy allegedly violated by the Piece Goods Shop's drug and alcohol program, our review of Pennsylvania law reveals other evidence of a public policy that may, under certain circumstances, give rise to a wrongful discharge action related to urinalysis or to personal property searches. Specifically, we refer to the Pennsylvania common law regarding tortious invasion of privacy. Pennsylvania recognizes a cause of action for tortious "intrusion upon seclusion." Marks v Bell Telephone Co., 460 Pa 73, 331 A2d 424, 430 (1975). The Restatement defines the tort as follows:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Restatement (Second) of Torts § 652B.*fn8

Unlike the other forms of tortious invasion of privacy,*fn9 an action based on intrusion upon seclusion does not require publication as an element of the tort. Harris by Harris v Easton Publishing Co., 335 Pa Super 141, 483 A2d 1377, 1383 (1984). The tort may occur by (1) physical intrusion into a place where the plaintiff has secluded himself or herself; (2) use of the defendant's senses to oversee or overhear the plaintiff's private affairs; or (3) some other form of investigation or examination into plaintiff's private concerns. 483 A2d at 1383. Liability attaches only when the intrusion is substantial and would be highly offensive to "the ordinary reasonable person." Id at 1383-84.

We can envision at least two ways in which an employer's urinalysis program might intrude upon an employee's seclusion. First, the particular manner in which the program is conducted might constitute an intrusion upon seclusion as defined by Pennsylvania law. The process of collecting the urine sample to be tested clearly implicates "expectations of privacy that society has long recognized as reasonable," Skinner v Railway Labor Executives Association, 489 U.S. 602, 109 S Ct 1402, 1413, 103 L. Ed. 2d 639 (1989).*fn10 In addition, many urinalysis programs monitor the collection of the urine specimen to ensure that the employee does not adulterate it or substitute a sample from another person. See, for example, 109 S Ct at 1413 (noting that in some cases, visual or aural observation of urination is required). See also National Treasury Employees Union v Von Raab, 489 U.S. 656, 109 S Ct 1384, 1388, 103 L. Ed. 2d 685 (1989). Monitoring collection of the urine sample appears to fall within the definition of an intrusion upon seclusion because it involves the use of one's senses to oversee the private activities of another. Restatement (Second) of Torts § 652B, comment b. See also Harris, 483 A2d at 1383.

As the United States Supreme Court has observed:

There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom.

Skinner, 109 S Ct at 1413 (quoting National Treasury Employees Union v Von Raab, 816 F.2d 170, 175 (5th Cir 1987), aff'd in part, vacated in part, 489 U.S. 656, 109 S Ct 1384, 103 L. Ed. 2d 685 (1989)). If the method used to collect the urine sample fails to give due regard to the employees' privacy, it could constitute a substantial and highly offensive intrusion upon seclusion. See Mark A. Rothstein, Drug Testing in the Workplace: The Challenge to Employment Relations and Employment Law, 63 Chi-Kent L Rev 683, 729 (1987) (public policy exception to employment-at-will doctrine most likely to be applied when employer requires direct observation of urination). See also Kelley v Schlumberger Technology Corp., 849 F.2d 41 (1st Cir 1988) (upholding jury verdict that employer's urinalysis program involving direct observation of urination invaded common-law right of privacy under Louisiana law).

Second, urinalysis "can reveal a host of private medical facts about an employee, including whether she is epileptic, pregnant, or diabetic." Skinner, 109 S Ct at 1413. A reasonable person might well conclude that submitting urine samples to tests designed to ascertain these types of information constitutes a substantial and highly offensive intrusion upon seclusion.

The same principles apply to an employer's search of an employee's personal property. If the search is not conducted in a a discreet manner or if it is done in such a way as to reveal personal matters unrelated to the workplace, the search might well constitute a tortious invasion of the employee's privacy. See, for example, K-Mart Corp. Store No. 7441 v Trotti, 677 SW2d 632 (Tex App 1984) (search of employee's locker). See also Bodewig v K-Mart, Inc., 54 Or App 480, 635 P2d 657 (1981) (subjecting cashier accused of stealing to strip search).

The Pennsylvania courts have not had occasion to consider whether a discharge related to an employer's tortious invasion of an employee's privacy violates public policy. The district court for the Western District of Pennsylvania has addressed this question in applying Pennsylvania law, however. In Rogers v International Business Machines Corp., 500 F Supp 867 (WD Pa 1980), plaintiff argued that IBM's decision to discharge him violated public policy because it was based upon an investigation of a personal matter (an alleged affair with a co-worker) that invaded his right of privacy. The court examined the record to determine whether the investigation intruded upon plaintiff's seclusion. After determining that IBM had confined its investigation to interviewing other employees and examining company records, the court concluded that IBM's procedures were reasonable and did not violate public policy.

We predict that the Pennsylvania Supreme Court would follow the approach taken in Rogers. In other words, we believe that when an employee alleges that his or her discharge was related to an employer's invasion of his or her privacy, the Pennsylvania Supreme Court would examine the facts and circumstances surrounding the alleged invasion of privacy. See Cisco, 476 A2d at 1343 (emphasizing necessity of examining all the circumstances in wrongful discharge cases). If the court determined that the discharge was related to a substantial and highly offensive invasion of the employee's privacy, we believe that it would conclude that the discharge violated public policy.*fn11 Indeed, the following language in Geary might well be considered to presage such an approach:

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, particularly where some recognized facet of public policy is threatened.

319 A2d at 180.

The Pennsylvania Superior Court's decision in Hershberger v New Jersey Shore Steel Co., 394 Pa Super 363, 575 A2d 944 (1990), appeal denied, 589 A2d 691 (Pa 1991), does not foreclose the possibility of a wrongful discharge action based upon an employer's urinalysis program. In Hershberger, the employer discharged plaintiff after his urine tested positive for drugs. Two weeks later, plaintiff underwent another urinalysis on his own initiative and also arranged for the specimen from the first test to be analyzed by a more technically sophisticated method. Even though both latter tests were negative, the employer refused to rehire plaintiff.

The sole issue before the court was whether a clear mandate of public policy prohibits a private employer from discharging an employee on the basis of a positive drug test without confirming the results of the initial drug test by another, scientifically distinct test. As evidence that such a public policy exists, plaintiff argued that: (1) other states had enacted legislation requiring confirmatory testing; (2) Pennsylvania was then considering similar legislation; and (3) the federal and state courts had criticized the use of unconfirmed tests. In addition, plaintiff presented expert testimony regarding the desirability of confirmatory testing.

The court refused to rely upon the legislation requiring confirmatory testing because the bills before the Pennsylvania legislature were still pending. Moreover, the court concluded that the expert testimony was not dispositive regarding the unreliability of the test the employer used. Therefore, the court held that plaintiff had failed to establish the existence of a public policy requiring employers to perform confirmatory testing.

According to the district court, Hershberger "implicitly holds, sub silentio, that no public policy, constitutional or otherwise, inhibits a private employer from requiring its employees to submit to urine testing for the presence of drugs and alcohol." It may be that Hershberger implicitly assumes that public policy does not preclude a private employer from requiring its employees to undergo urinalysis for drug use per se, but to us it is not clear that it does. The court may have elected to dispose of the case adversely to the plaintiff on the basis of the sole question presented without reaching a more difficult issue (the one before us now) that apppears not to have been presented. Thus, we do not read Hershberger as foreclosing the possibility that, under some circumstances, an employer's urinalysis program may violate public policy.

Only a handful of other jurisdictions have considered urinalysis programs implemented by private employers.*fn12 The majority of these decisions balance the employee's privacy interest against the employer's interests in order to determine whether to uphold the progams. See, for example, Luedtke v Nabors Alaska Drilling, Inc., 768 P2d 1123 (Alaska 1989). In Luedtke, two employees challenged their employer's urinalysis program, alleging violation of their state constitutional right of privacy, common-law invasion of privacy, wrongful discharge, and breach of the covenant of good faith and fair dealing. (Under Alaska law, the public policy exception to the employment-at-will doctrine is "largely encompassed within the implied covenant of good faith and fair dealing." 768 P2d at 1130, quoting Knight v American Guard & Alert, Inc., 714 P2d 788, 792 (Alaska 1986)). After determining that the relevant provision of the Alaska constitution did not apply to private action, the Alaska Supreme Court concluded that a public policy protecting an employee's right to withhold private information from his employer exists in Alaska and that violation of that policy "may rise to the level of a breach of the implied covenant of good faith and fair dealing," 768 P2d at 1130.

As evidence of public policy, the court looked to the state's statutes,*fn13 Constitution,*fn14 and common law.*fn15 The court concluded:

Thus, the citizens' right to be protected against unwarranted intrusions into their private lives has been recognized in the law of Alaska. The constitution protects against governmental intrusion, statutes protect against employer intrusion, and the common law protects against intrusions by other private persons. As a result, there is sufficient evidence to support the Conclusion that there exists a public policy protecting spheres of employee conduct into which employers may not intrude.

Id at 1133.

The court then turned to the question "whether employer monitoring of employee drug use outside the work place is such a prohibited intrusion," id at 1133. The court reasoned that the boundaries of the employee's right of privacy "are determined by balancing [that right] against other public policies, such as 'the health, safety, rights and privileges of others.'" Id at 1135-36 (quoting Ravin v State, 537 P2d 494, 504 (Alaska 1975)). Because the Luedtke plaintiffs performed safety-sensitive jobs, the court concluded that the public policy supporting the protection of the health and safety of other workers justified their employer's urinalysis program. 768 P2d at 1136.

The West Virginia Supreme Court also applied a balancing test in Twigg v Hercules Corp, 406 SE2d 52 (W Va 1990). The case arose when the district court for the Northern District of West Virginia certified the following question to the court:

Can the discharge of an employee for refusing to submit to urinalysis as part of a random drug test violate a substantial public policy of West Virginia and subject the employer to damages under [West Virginia law] when the employer has no individualized suspicion of drug usage and the drug test is not prohibited by state statute?

In response, the court observed that it had previously held that requiring employees to submit to polygraph tests violated the state's public policy of protecting individual privacy rights. The court then reasoned:

It is unquestionable that since we do recognize a "legally protected interest in privacy" and have previously found that requiring employees to submit to polygraph examinations violates public policy based upon this privacy right, we likewise recognize that it is contrary to public policy in West Virginia for an employer to require an employee to submit to drug testing, since such testing portends an invasion of an individual's right to privacy.

Id at 55.*fn16

Even some courts that have held that urinalysis programs conducted by private employers do not violate the public policy exception to the employment-at-will doctrine have balanced the employee's interests against the employer's. Hennessey v Coastal Eagle Point Oil Company, 247 NJ Super 297, 589 A2d 170, certif granted, 598 A2d 897 (1991), provides an example of this approach. After refusing to apply federal and state constitutional prohibitions against unreasonable searches to private employers, the Hennessey court conceded, for the sake of argument, that the right of privacy may serve as a source of public policy. The court opined, however, that the the intrusion upon privacy implicated by urinalysis had been "overstated." 589 A2d at 177. The court also observed that the urinalysis progam served public policy by deterring drug use and that the employer had a legitimate interest in eliminating drug use in the workplace. Because the court considered the invasion of privacy minimal and the employer's interests substantial,*fn17 it concluded, on the basis of this balancing, that the employer had not violated a clear mandate of public policy and hence that discharging an employee who tested positive for drugs did not fall within the public policy exception to the employment-at-will doctrine.

The court in Hennessey was much more reluctant than the Luedtke and Twigg courts to recognize the privacy interest raised by the employer's urinalysis program. We find it significant, however, that in Hennessey it was clear that the particular program at issue did not constitute a substantial and highly offensive invasion of privacy. First, the urine specimens were tested solely for drugs. 589 A2d at 173. Second, although monitors were present during the collection of the specimens, the monitors stood behind the employees and were specifically instructed "not to look at any of the employees' genitalia or private parts." Id. We suspect that given these circumstances, a reasonable person would not find the program highly offensive.

Although most other jurisdictions have applied a balancing test to urinalysis programs conducted by private employers, not all have done so. In Jennings v Minco Technology Labs, Inc., 765 SW2d 497 (Tex App 1989), for example, the Texas Court of Appeals upheld an employer's random urinalysis program without balancing the employee's interests against the employer's. The court upheld the program for two reasons. First, the court reasoned that although the Texas Supreme Court had on one occasion recognized an exception to the employment-at-will doctrine based on public policy, see Sabine Pilot, Inc. v Hauck, 687 SW2d 733 (Tex 1985), the "lower courts are not free to create additional exceptions," 765 SW2d at 501, particularly in the absence of a statute explicitly recognizing the public policy allegedly violated by the discharge, id at 501 & 501 [n3a] Second, the court reasoned that the employer's urinalysis program would not violate plaintiff's privacy because her urine would be tested only if she consented. Id at 502. Jennings argued that her consent would be ineffective because if she did not consent, she would lose her job, which she could not afford to do. The court rejected her argument, however, because "there cannot be one law of contracts for the rich and another for the poor." Id.

The balancing test is more consistent with Pennsylvania law than the approach taken by the Texas court in Jennings. Unlike the Texas courts, Pennsylvania's intermediate appellate courts have recognized a public policy exception to the employment-at-will doctrine on three occasions and have emphasized the need to examine all the circumstances in a wrongful discharge action, Cisco, 476 A2d at 1343. Moreover, although two of those cases in part relied upon public policies expressed in statutes, the Pennsylvania courts have also recognized other sources as competent evidence of public policy. See page 19. More importantly, under Pennsylvania law an employee's consent to a violation of public policy is no defense to a wrongful discharge action when that consent is obtained by the threat of dismissal.*fn18

In view of the foregoing analysis, we predict that the Pennsylvania Supreme Court would apply a balancing test to determine whether the Shop's drug and alcohol program (consisting of urinalysis and personal property searches) invaded Borse's privacy. Indeed, determining whether an alleged invasion of privacy is substantial and highly offensive to the reasonable person necessitates the use of a balancing test. The test we believe that Pennsylvania would adopt balances the employee's privacy interest against the employer's interest in maintaining a drug-free workplace in order to determine whether a reasonable person would find the employer's program highly offensive.*fn19

We recognize that other jurisdictions have considered individualized suspicion and concern for safety as factors to be considered in striking the balance, see, for example, Twigg, 406 SE2d at 55 (allowing urinalysis based on individualized suspicion or when employee's job implicates safety concerns). We do not doubt that, in an appropriate case, Pennsylvania would include these factors in the balance, but we do not believe that the Pennsylvania Supreme Court would require private employers to limit urinalysis programs or personal property searches to employees suspected of drug use or to those performing safety-sensitive jobs.*fn20

This precautionary note springs from two sources. First, these limitations originated in cases applying constitutional principles to urinalysis programs conducted by government employers. See Skinner, 489 U.S. 602, 109 S Ct 1402, 103 L. Ed. 2d 639 (1989); Von Raab, 109 S Ct 1384 (1989). We do not believe that the Pennsylvania courts would transfer the jurisprudence of the cases involving government employers to actions against private employers because the standard applied in cases involving government employers differs significantly from that applied in the tortious invasion of privacy cases. In the cases involving government employers, courts have asked whether the urinalysis program is reasonable under Fourth Amendment principles. In contrast, in order for an invasion of privacy to be tortious, it must be both substantial and highly offensive to the reasonable person. See Fogel, Kornblut, & Porter, 42 U Miami L Rev at 667 (comparing Fourth Amendment claim to tortious invasion of privacy claim). Therefore, even though our analysis at pages 24-29 reasons that if a private employer's drug and alcohol program tortiously invaded its employees' privacy, the Pennsylvania Supreme Court would hold that discharges related to that program violated public policy, we do not believe that the Pennsylvania Supreme Court would simply transpose Fourth Amendment limitations on public employers to urinalysis programs or personal property searches conducted by private employers.

Second, the case law concerning the public policy exception reflects "a pattern of favoring the employer's interest in running its business," Turner, 505 A2d at 261, and a willingness to define that interest broadly. See, for example, Cisco, 476 A2d at 1344 (discussing employer's interest). Given this backdrop, we find it unlikely that Pennsylvania would impose the strict limitations of the Fourth Amendment cases.

In sum, based on our prediction of Pennsylvania law, we hold that dismissing an employee who refused to consent to urinalysis testing and to personal property searches would violate public policy if the testing tortiously invaded the employee's privacy. The sketchy nature of Borse's complaint makes it difficult for us to ascertain whether the Shop's drug and alcohol program would constitute a substantial and highly offensive intrusion upon Borse's privacy, however. Although she alleges that the program violates her right of privacy, she fails to allege how it does so. Because we can envision at least two ways in which an employer's drug and alcohol program might violate the public policy protecting individuals from tortious invasions of privacy by private actors, see pages , we will vacate the order of the district court dismissing the complaint, and we will remand the case to the district court with directions to grant Borse leave to amend.*fn21


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