Lead Opinion
OPINION OF THE COURT
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 U.S.C. § 1332. The jurisdiction of this court is founded upon 28 U.S.C. § 1291.
Federal courts sitting in diversity must apply the substantive law of the state whose laws govern the action. Erie Railroad Co. v. Tompkins,
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.,
In Geary v. United States Steel Corp.,
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.
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, w]e 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.,
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.,
[A]s 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).
One year later, the Pennsylvania Supreme Court returned to the issue again. In Paul v. Lankenau Hospital,
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.,
The Superior Court also upheld a cause of action for wrongful discharge in Hunter v. Port Authority of Allegheny County,
Field v. Philadelphia Electric Co.,
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.
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.,
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.,
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.
In addition to retaining the focus on public policy, subsequent decisions by the Su
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.
demonstrate a pattern of favoring the employer’s interest in running its business. ... [T]o 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.,
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,
D. Third Circuit Oyinions Ayylying the Public Policy Exceytion 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.,
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,
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,
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.5
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.,
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,
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. Specifically, 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.
The court took the same approach in Martin v. Capital Cities Media, Inc.,
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.
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,
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,
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.
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.... [T]he first twenty-six sections of Article 1 ... merely contain a limitation on the powers of government.
Commonwealth v. National Gettysburg Battlefield Tower, Inc.,
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.,
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.
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,
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,
Second, urinalysis “can reveal a host of private medical facts about an employee, including whether she is epileptic, pregnant, or diabetic.” Skinner,
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,
The Pennsylvania courts have not had occasion to consider whether a discharge
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,
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.
The Pennsylvania Superior Court’s decision in Hershberger v. Jersey Shore Steel Co.,
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 appears not to have been presented. Thus, we do not read Hershberger as foreclosing the possibility
Only a handful of other jurisdictions have considered urinalysis programs implemented by private employers.
As evidence of public policy, the court looked to the state’s statutes,
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 P.2d 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.
The West Virginia Supreme Court also applied a balancing test in Twigg v. Hercules Corp,
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:
[I]t 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.
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,
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 hot constitute a substantial and highly offensive invasion of privacy. First, the urine specimens were tested solely for drugs.
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.,
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,
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.
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,
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,
Second, the case law concerning the public policy exception reflects “a pattern of favoring the employer’s interest in running its business,” Turner,
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.
Notes
. Chief Justice Nix wrote separately to indicate that he did not read Geary as creating a cause of action for wrongful discharge, however. He stated:
[T]his Court did not announce a cause of action for wrongful discharge in Geary. The language relied upon by the Superior Court in its analysis of Geary was gratuitous dicta and could not possibly have created a tort cause of action for wrongful discharge. Indeed, the language in Geary clearly states that a cause of action for wrongful discharge in an at-will employment relationship does not exist.
. Article I, section 1 provides:
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.
. Those factors include:
(a) the nature of the actor's conduct,
(b) the actor’s motive,
(c) the interests of the other with which the actor's conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the interference and
(g) the relations between the parties.
Id. at 618 (quoting Restatement (Second) of Torts § 767 (1979)).
. The second prong of the Cisco test, determining whether the employer has a separate plausible and legitimate reason for discharging the employee, is not at issue here. See Field,
. Article I, section 7 states in pertinent part: The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.
. In Cisco, the court stated:
A clear statement of what public policy actually consists is hindered by its varying manifestations. As the Supreme Court of New Jersey observed:
The sources of public policy [which may limit the employer’s right of discharge] include legislation; administrative rules, regulation, or decision; and judicial decision. In certain instances, a professional code of ethics may contain an expression of public policy.... Absent legislation, the judiciary must define the cause of action in case-by-case determinations.
Id. at 1343 (quoting Pierce v. Ortho Pharmaceutical Corp.,
. We set forth the text of Article I, section 1 in note 2.
. In Vogel v. W.T. Grant Co.,
. The action for invasion of privacy encompasses four analytically distinct torts. In addition to intrusion upon seclusion, the tort also includes (1) appropriation of name or likeness; (2) publicity given to private life; and (3) publicity placing a person in a false light. See Marks,
. At pages 619-21, we caution against the wholesale application to private employers of the limitations imposed on public employers by the Fourth Amendment. We find the cases involving government employers helpful, however, in defining the individual privacy interest implicated by urinalysis.
. The Sixth Circuit recently rejected an invasion of privacy claim challenging an employer's urinalysis program. Baggs v. Eagle-Picher Industries, Inc.,
.Several of these cases are inapposite because they involve state law that differs significantly from Pennsylvania’s. For example, some state constitutions include a right of privacy that applies to private action. See, for example, Luck v. Southern Pacific Transportation Co.,
. The court observed that a statute prohibiting employers from requiring employees to take polygraph tests as a condition of employment supports "the policy that there are private sectors of employees’ lives not subject to direct scrutiny by their employers."
. The court reasoned that although Alaska’s constitutional right of privacy does not proscribe private action, the inclusion of a specific clause protecting the right "supports the contention that this right ’strike[s] at the heart of a citizen’s social rights.’” Id. at 1132-33 (no citation given).
. The court observed that the action for tor-tious intrusion upon seclusion evidences the existence of a common-law right of privacy. Id. at 1133.
. Although the court held that discharging an employee who refused to submit to urinalysis violated public policy, it recognized two exceptions: when the urinalysis is based upon "reasonable good faith objective suspicion” of an employee’s drug use or when the employee’s job involves public safety or the safety of others.
. The court noted that in his job as a "lead pumper" at a refinery, Hennessey worked with combustible materials, some of which are also toxic.
. In Leibowitz v. H.A. Winston Co.,
. We note that this test differs from the test set forth in Yaindl (and later restricted in Cisco). See pages ---. The Yaindl test balances the employee’s interest in earning a living against the employer’s interest in running its business as it sees fit in order, to determine whether the discharge violates public policy.
. We note that these factors are not present in this case: there is no suggestion in any of the papers that Borse was suspected of using drugs or alcohol, or that her job as a salesperson implicated safety concerns.
. Federal Rule of Civil Procedure 15(a) provides that “leave [to amend] shall be freely given when justice so requires." The Rule is construed liberally in order to further a basic purpose behind the Federal Rules—“that pleadings are not an end in themselves but are only a means to assist in the presentation of a case to enable it to be decided on the merits.” 6 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure: Civil § 1473 at 521 (West, 1990). An appellate court faced with an inadequate record may direct the district court to allow amendment on remand. See, for example, National Post Office Mail Handlers v. United States Postal Service,
Lead Opinion
SUR PETITION FOR PANEL REHEARING WITH SUGGESTION FOR REHEARING IN BANC
July 6, 1992.
The petition for rehearing filed by Appellant, having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges in active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is DENIED.
Judges Greenberg, Hutchinson, Nygaard and Alito would grant rehearing.
STATEMENT SUR DENIAL OF REHEARING IN BANC
I respectfully dissent from the order denying rehearing in banc for the following reasons. In this diversity case, it is our duty to follow the substantive decisions of the highest court of the forum state, much as we are duty bound to follow the decisions of the Supreme Court of the United States. I believe the Court’s conclusion that the Supreme Court of Pennsylvania would create a public policy exception to the employment-at-will doctrine in favor of private sector employees who refuse random drug tests is contrary to the decisional
Pennsylvania case law demonstrates strict adherence to the doctrine of employment at will despite occasional dictum that there may exist undefined but narrow exceptions to that doctrine. Indeed, the Supreme Court of Pennsylvania has only recently reiterated its view that any public policy exception to the employment-at-will doctrine is extremely narrow. See Paul v. Lankenau Hosp.,
I see no indication anywhere in Pennsylvania’s decisional law from which a strong policy favoring employee privacy over random drug testing could be inferred in the context of employment at will. No Pennsylvania court has even considered whether an employer’s tortious invasion of an employee-at-will’s privacy precludes discharge.
The decision of the United States District Court for the Western District of Pennsylvania in Rogers v. International Bus. Machines Corp.,
IBM’s decision to terminate was improper because it was predicated on an investigation of a personal matter in which the Company had no legitimate interest and therefore invaded his right of privacy.
Id. at 869. It said:
[A]n employer has a legitimate interest in “preserving harmony among its employees and in preserving its normal operational procedures from disruption.”
Id. (quoting Geary v. United States Steel Corp.,
I also believe that the Court gives an overly narrow reading to Hershberger v. Jersey Shore Steel Co.,
Though Hershberger did not consider whether the public policy against invasion
The Supreme Court of Pennsylvania has historically been a strict enforcer of the right of an employer to discharge an employee at will for any reason, or no reason at all. It has recently restated its adherence to that view. Its insistence on the narrowness of any hypothetical exception to that right and the fact that no Pennsylvania case has granted relief from wrongful discharge to an employee at will convinces me that the Court’s decision in this case that a private employee at will who is discharged for refusing a random drug test has a state cause of action for wrongful discharge because the test violated a public policy in favor of privacy that is not found in either federal or state constitutional law, federal or state statutory law or any decision of a Pennsylvania state court conflicts with Erie. Similarly, this Court’s ability to “envision at least two ways in which an employer’s urinalysis program might intrude upon an employee’s seclusion,” Op. at 622, does not, in my judgment, demonstrate the kind of strong public policy that permits us to overlook Pennsylvania’s strong adherence to the doctrine of employment at will. Accordingly, I would grant the petition for rehearing in banc. Judges Greenberg and Alito join in this statement.