Third Circuit - No Breach of Public Policy in Discharge
In a recent holding, the Third Circuit reiterated Pennsylvania’s “at-will” presumption in employment by declining to expand the recognized exceptions to that principle. In Pennsylvania, an at-will employee can generally be discharged at any time, with or without a reason. However, Pennsylvania courts have in the past recognized an exception where an employee’s termination violates a “clear mandate of public policy,” but such situations have been limited to circumstances in which an employer: (1) requires an employee to commit a crime; (2) prevents an employee from complying with a statutorily imposed duty; or (3) discharges an employee when specifically prohibited from doing so by statute.
In the recent case of Brennan v. Cephalon Inc., No. 07-2702 (3rd Cir. Oct, 7 2008) http://www.ca3.uscourts.gov/opinarch/072702np.pdf , the court found that a pharmaceutical firm auditor who told his employer that it was not complying with Food and Drug Administration (FDA) safety guidelines and threatened to report the company to the FDA could not sue for wrongful discharge in violation of the public policy of Pennsylvania. In affirming the lower court’s grant of summary judgment in favor of the employer, Judge Maryanne Trump Barry said that compliance auditor David Brennan failed to show that he was under a statutory duty to report his employer’s failure to comply with FDA-approved conditions on the marketing of a specific cancer drug. The court found that Brennan also failed to present evidence to show that he was directed to falsify or conceal the results of his audit of the drug.
According to the court, Brennan's claim in the case rested on an alleged “statutorily imposed duty;” however, the former employee cited only federal and state laws prohibiting false statements to government officials. The court concluded that "[n]one of these statutes imposed directly on Brennan an affirmative duty to report his audit findings to the FDA."
The court also stated that while the FDA-approved risk management program for the drug required the employer to disclose specific information to the FDA, the program did not direct the company to conduct an audit or to share an audit report like Brennan's with the government. Observed the court, "[h]ere, in the absence of a similarly clear and direct duty of disclosure, the statutorily imposed duty prong of the exception [to employment at will] is not applicable."
