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Court Allows Whistleblower Case against U.S. Foodservice to Proceed


(US District Court, Middle District of PA; Civil Action No. 3:09-0092). Last week, a federal judge denied a motion by U.S. Foodservice to dismiss a whistleblower case involving a Pittston man and his allegations that the company’s actions were endangering public safety.

In May 2009, Ronald Oliveri, Jr., filed a whistleblower lawsuit in federal court against his former employer, U.S. Foodservice, alleging that the company terminated his employment as a Transportation Manager because he complained about and refused to violate commercial driver safety regulations. Oliveri, through his attorneys at Rubin, Fortunato & Harbison P.C. in Paoli, PA, alleges that U.S. Foodservice’s termination of his employment constituted: (1) retaliation in violation of the federal Surface Transportation Assistance Act (“STAA”); and (2) wrongful discharge in violation of public policy under Pennsylvania law. In July 2009, U.S. Foodservice filed a Motion to Dismiss both counts in Oliveri’s complaint.

By Memorandum dated February 9, 2010, The Honorable James M. Munley denied U.S. Foodservice’s Motion to Dismiss in its entirely, allowing both of Oliveri’s whistleblower claims to proceed. Oliveri v. U.S. Foodservice, 2010 U.S. Dist. LEXIS 11199 (M.D. Pa. 2010). The Court is expected to schedule a Case Management Conference to set the critical dates for the lawsuit, including an anticipated trial date.

The ruling is significant for two reasons: it provides specific guidance regarding the definition of protected “employee” under the STAA; and it supports the plaintiff’s assertion that his termination for the reasons set forth in his Complaint violates Pennsylvania’s public policy with regard to the safety of its citizens on its roadways.

About Oliveri’s Employment History and the Nature of the Claims
Oliveri started his employment as a Transportation Supervisor at U.S. Foodservice’s North Star division in January of 2007 and quickly established himself as a valuable employee, implementing profitable initiatives and increasing overall division performance. As a result, on a number of occasions, Oliveri was asked to travel to other company locations to conduct training and deliver speeches on best practices, all the while receiving salary and bonus increases and a promotion to Transportation Manager.

However, over time, it became clear to Oliveri that the Operations Manager at the Pittston site was violating federal drug testing laws applicable to the company’s commercial tractor-trailer drivers. Specifically, the Operations Manager delayed or excused certain drivers from random drug tests. In one instance, the Operations Manager allowed a driver who tested positive for cocaine use (months after he had initially been selected for a random drug test) to return to work as a tractor trailer driver without complying with return to work regulations issued by the Department of Transportation (“DOT”). Oliveri complained about the safety violations directly to the Operations Manager as well as to the company’s Area Human Resources Manager on multiple occasions, yet the conduct continued.

Oliveri also discovered significant equipment issues at the site relating to vehicle maintenance and safety, which may have contributed to accidents, injuries, and in one case the possible death of a driver. But when his concerns were brought to the Pittston Operations Manager, they were again dismissed.

By October of 2008, Oliveri felt compelled to escalate his concerns for the safety of the drivers and the public because he had been ignored time and again by the local representatives with the power to remedy the issues. On October 14, 2008, Oliveri contacted the U.S. Foodservice “Check-In Line,” a national compliance hotline established for employees to be able to report suspected legal or ethical violations with complete anonymity and the promise of no retaliation whatsoever.

The following morning, the Pittston Operations Manager called Oliveri to his office, reported that he knew of the call that Oliveri had made, fired him (later claiming that Oliveri had engaged in “gross misconduct”), and escorted him from the building. While an internal U.S. Foodservice investigation was completed in the following weeks, and Oliveri was interviewed during the process, the results of the investigation were never shared with him. During that time, Oliveri notified the Maryland Division of the DOT of his concerns, who later found that they were, indeed, valid.

Oliveri is seeking reinstatement to his job, compensation for lost wages, damages for the emotional distress he has suffered as a result of his firing, punitive damages for the company’s malicious and reckless conduct, as well as attorneys’ fees and costs incurred to pursue his legal rights.

Significance of Court’s Decision

STAA Claim

In its Motion, U.S. Foodservice asserted that Oliveri’s whistleblower claim under STAA should be dismissed because Oliveri was not a protected “employee” as defined in the Act. The STAA defines “employee” as “a driver of a commercial motor vehicle (including an independent contractor when personally operating a commercial motor vehicle), a mechanic, a freight handler, or an individual not an employer, who directly affects commercial motor vehicle safety in the course of employment by a commercial motor carrier.” 49 U.S.C. § 31101(2).

U.S. Foodservice argued that this language is limited to drivers, helpers, freight handlers, and mechanics. The Court rejected that argument, and, in reliance on the plain language of the statute, examined Oliveri’s Complaint to determine if it alleged facts that indicate Oliveri held a position affecting commercial vehicle safety, without regard to his job title.

Ultimately, the Court concluded that Oliveri’s tasks, as alleged in his Complaint, including implementing random drug testing, clearly had an effect on commercial vehicle safety on the highways, and dismissal of the STAA claim was inappropriate. The Court’s opinion is significant because there are very few cases interpreting this provision of the STAA.

Wrongful Discharge In Violation of Pennsylvania Pubic Policy

In its Motion, U.S. Foodservice asserted that Oliveri’s common law claim for wrongful discharge in violation of public policy should be dismissed because allowing it to proceed would be an inappropriate erosion of Pennsylvania’s at-will doctrine. U.S. Foodservice argued that, in order to prevail, a plaintiff asserting a claim for common law wrongful discharge in Pennsylvania was limited to situations in which: (1) an employer required an employee to commit a crime; (2) an employer prevented an employee from complying with a statutorily imposed duty; or (3) an employer discharged an employee when a statute specifically prohibited it from doing so.

Despite Defendant’s arguments, the Court did not limit itself to any specific categories of wrongful discharge claims. Instead, the Court, relying on the Pennsylvania Supreme Court’s recent decision in Weaver v. Harpster, 975 A.2d 555 (Pa. 2009), held that it could declare that an action is a violation of public policy “only when a given policy is so obviously for or against public health, safety, morals, or welfare that there is a virtual unanimity of opinion in regard to it.” Applying this standard to the facts alleged in Oliveri’s complaint, the Court held that to “terminate [Oliveri’s] employment for making complaints regarding safety of the drivers/trucks, would be a violation of Pennsylvania’s public policy.”

In reaching its conclusion, the Court cited several cases in which Pennsylvania courts, in various contexts, have recognized that highway safety and the regulation of commercial motor vehicles are significant matters of public policy. In addition, the Court noted that the Pennsylvania legislature has adopted by reference federal regulations involving the safety issues involved in Oliveri’s case (driver drug and alcohol testing and inspection repair and maintenance of commercial motor carriers).

The opinion is significant because, relying on Weaver, the Court refused to limit claims for wrongful discharge in violation of public policy in Pennsylvania to specific situations or types of claims. This may bring an end to a disturbing trend among federal district courts in Pennsylvania in which judges have suggested such claims were limited to only three “categories.” See, e.g., Diberardinis-Mason v. SuperFresh, 94 F. Supp.2d 626 (E.D. Pa. 200) (“public policy exception is generally broken down into three categories” and rejecting claim that did not fit within them); Zoe v. Impact Systems, Inc., 2009 U.S. Dist. LEXIS 7906 (M.D. Pa. 2009) (“There are three embodiments of the public policy exception that can support an at-will employee’s claim for wrongful discharge.”)

Recently, a judge in the Court of Common Pleas for Philadelphia County, The Honorable Arnold L. New, rejected a defendant’s assertion that public policy claims in Pennsylvania are recognized in only three limited instances. Haun v. Phoenixville Hospital, 2009 Phila. Ct. Com. Pl. LEXIS 243 (Phila. Ct. Com. Pls. November 5, 2009). In Haun, the Court stated: “This characterization, while helpful, is misleading because courts have recognized public policy exceptions that fall outside of these three categories.” In that case, the plaintiff, a hospital executive, alleged that it violated public policy when his employer fired him because he filed a medical malpractice claim against the hospital arising out of the care provided to his infant son. The defendant in Haun filed a Petition for Review, which is still pending with the Pennsylvania Superior Court.

About the Company
U.S. Foodservice is a commercial motor carrier based in Columbia, Maryland, engaged in transporting commercial goods on the highways. The company, according to its website, employs over 27,000 people and has over 70 distribution centers across the country, including the Pittston distribution center, which operates as part of the “North Star Foodservice” division.

Plaintiff’s Counsel
Oliveri is represented by Julie A. Uebler, Esquire and Edward J. Heffernan, Esquire of Rubin, Fortunato & Harbison P.C. Rubin Fortunato has built a nationally-respected employment law practice based in suburban Philadelphia, PA, representing both corporations and individuals in virtually all areas related to employment law.

Defendant’s Counsel
A. Jack Finklea, Esq. of Scopelitis, Garfin, Light, Hanson & Feary of Indianapolis, IN represents U.S. Foodservice in this matter.

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