Ebert v. Genpact Limited

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHRISTOPHER EBERT, : Civil No. 3:21-CV-00980

:

Plaintiff, :

:

v. :

:

GENPACT LIMITED, :

:

Defendant. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court is Defendant’s motion to dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(6). (Doc. 8.) This action was brought by Plaintiff

Christopher Ebert (“Ebert”) to recover damages for Defendant’s alleged wrongful

termination of Ebert’s employment. (Doc. 1-2.) Defendant, Genpact Limited1

(“Genpact”), has moved to dismiss the complaint, alleging that Ebert was an at-

will employee under Pennsylvania law, that he has not otherwise alleged facts that

would indicate that a public policy was violated, and that employment discipline

and ultimate employment termination are insufficient grounds to establish an

intentional infliction of emotional distress claim. (Doc. 9.) Because the court

finds that Genpact’s handbook clearly established an at-will employment

relationship; Ebert has alleged only personal adverse consequences, rather than a

1 Defendant asserts that Ebert “incorrectly sued Genpact Limited, and not [his] former employer,

Genpact LLC.” (Doc. 9, p. 1 n.1.) However, the court refers to Genpact Limited throughout this

order since Genpact Limited remains the named Defendant in this case.

broader concern for society as required by the public policy exception to the

general presumption in favor of at-will employment; and because the employment

discipline and termination described in the complaint do not amount to intentional

infliction of emotional distress, the court will grant the motion to dismiss. (Doc.

8.)

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

According to the complaint, Ebert was hired by Genpact on August 7, 2017.

(Doc. 1-2, ¶ 3.) Ebert alleges that throughout his time working for Genpact, he

only received positive reviews and feedback until he took a company survey that

purported to be anonymous regarding his experiences at Genpact. (Id. ¶¶ 9, 18−19,

22−23.) Ebert asserts that after providing his responses to this survey, he was

placed on a “Performance Improvement Plan,” given unsatisfactory job

performance evaluations, and ultimately faced employment termination without

good cause on January 31, 2020. (Id. ¶¶ 6, 23.)

On the basis of these facts, Ebert filed a three-count complaint on December

30, 2020 alleging wrongful termination/breach of contract, wrongful

termination/retaliation, and intentional infliction of emotional distress against

Genpact. (Id.) This case was removed to federal court from the Court of Common

Pleas of Luzerne County on June 1, 2021. (Doc. 1.) On June 6, 2021, Ebert filed a

motion to remand. (Doc. 5.) Genpact filed the instant motion to dismiss,

accompanied by a supporting brief, on June 14, 2021. (Docs. 8, 9.) The court

stayed briefing of the motion to dismiss pending resolution of the motion to

remand. (Doc. 12.) The court denied the motion to remand on July 23, 2021, and

set a new briefing schedule for the motion to dismiss. (Doc. 15.) In accordance

with this schedule, Ebert filed a brief in opposition on August 6, 2021. (Doc. 18.)

Genpact timely filed a reply brief.2 (Doc. 19.) Accordingly, the motion is ripe for

disposition.

JURISDICTION

The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 as

the parties have complete diversity and the amount in controversy exceeds

$75,000. Further, venue is appropriate because the action detailed in the complaint

occurred in the Middle District of Pennsylvania.

STANDARD OF REVIEW

In order “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the

2 The court notes that attached to Genpact’s reply brief are additional exhibits that it would like

the court to consider in ruling on the motion to dismiss. The court disregards these exhibits for

two reasons: first, because they were not attached to the brief in support of the motion to dismiss

and Ebert has not had a chance to respond to them; and second, because Ebert does not rely on

these documents in the complaint, and they are therefore outside the scope of the pleadings and

the universe of documents that the court may consider when ruling on a motion to dismiss.

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678−79). To determine whether a complaint

survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to

relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

DISCUSSION

Genpact argues that the complaint should be dismissed because

Pennsylvania is an at-will employment state, absent a statute or contract to the

contrary, and therefore a claim for wrongful termination is unavailable to Ebert.

(Doc. 9, p. 5.)3 In addition, Genpact asserts that its employee handbook, which

Ebert claims formed a contractual relationship with Genpact and which Genpact

attached to its brief in support of the instant motion, unequivocally indicates that

Ebert’s employment was at-will. (Id. at 6−9.) Genpact also argues that Ebert has

not established an exception to the general rule that he was an at-will employee,

3 For ease of reference, the court utilizes the page number from the CM/ECF header.

and therefore, his claims for wrongful termination based on breach of contract and

for retaliatory discharge should be dismissed. (Id. at 9−10.) Finally, Genpact

asserts that a claim for intentional infliction of emotional distress is unavailable to

Ebert as a matter of law because such claims are generally unavailable in the

employment context absent extreme circumstances which do not exist in this case.

(Id. at 11−12.)

Ebert claims that the court cannot consider the documents attached to

Genpact’s brief because they are “unverified,” were not attached to his complaint,

and because Ebert “never saw the Exhibits attached to the Defendant’s Brief, nor

were they given to him at the time of his hire, or thereafter.”4 (Doc. 18, p. 7.) The

remainder of Ebert’s brief restates facts and legal conclusions from his complaint,

which do little to respond substantively to Genpact’s arguments. In the alternative,

Ebert requests that the court grant leave to file an amended complaint. (Id. at 15.)

4 Ebert also argues that the court should treat Genpact’s motion to dismiss as a motion for

summary judgment which has been prematurely filed. (Doc. 18, pp. 8−9.) Because Genpact is

permitted to offer documents for the court’s consideration that are relied upon in the complaint,

the court will decline Ebert’s invitation to construe Genpact’s motion as seeking summary

judgment. See Doe v. Univ. of Scis., 961 F.3d 203, 208 (3d Cir. 2020).

In addition, although courts generally consider “only the allegations contained in the complaint,

exhibits attached to the complaint and matters of public record” when deciding a motion to

dismiss, Pension Ben. Guaranty Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d

Cir. 1993), courts “may also consider evidence ‘integral to or explicitly relied upon’” in the

complaint. Doe, 961 F.3d at 208. Here, Genpact’s employee handbook is integral to Ebert’s

claims. Indeed, Ebert relies on the handbook for his argument that an implied contract was

formed for his employment. The court will therefore consider the employee handbook in

deciding Genpact’s motion to dismiss.

A. Ebert’s Breach of Contract and Retaliation Claims Will be

Dismissed Without Prejudice.

Under Pennsylvania law,5 the general rule is that “absent a statutory or

contractual provision to the contrary, either party may terminate an employment

relationship for any or no reason.” Weaver v. Harpster, 975 A.2d 555, 562 (Pa.

2009) (citing Geary v. United States Steel Corp., 319 A.2d 174 (Pa. 1974);

McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283 (Pa. 2000) (noting

that Pennsylvania courts have recognized for over a century that an employer may

terminate an employee for any reason absent a contractual provision to the

contrary)). In other words, employment in Pennsylvania is presumed to be “at-

will.”

This is a strong presumption. As the Pennsylvania Superior Court has

stated:

Absent a definite contract to the contrary . . ., the reasonable

expectations of the parties in the employment relations setting are that

the employee will work for the employer only for so long as both desire.

While an employment contract which is clearly for a term of a specific

number of years would be enforceable, any language short of this

definiteness is generally strictly reviewed because of the pervasive

presumption that the employment is at-will.

Martin v. Capital Cities Media, Inc., 511 A.2d 830, 837 (Pa. Super. Ct. 1986).

5 The court applies the substantive law of Pennsylvania to this dispute since the court is

exercising diversity jurisdiction in this case. Erie R.R. Co. v. Tompkins, 304 U.S 64, 78 (1938);

Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000). In addition, the court notes that

neither party objects to the application of Pennsylvania law and both parties have cited to same

in their filings.

Where, as here, a plaintiff attempts to use an employee handbook as the

basis for a contractual employment relationship, courts have held that:

A handbook is enforceable against an employer if a reasonable person

in the employee’s position would interpret its provisions as evidencing

the employer’s intent to supplant the at-will rule and be bound legally

by its representations in the handbook. The handbook must contain a

clear indication that the employer intended to overcome the at-will

presumption. We have held that it is for the court to interpret the

handbook to discern whether it contains evidence of the employer’s

intention to be bound legally.

Luteran v. Loral Fairchild Corp., 688 A.2d 211, 214−15 (Pa. Super. Ct. 1997)

(quoting Small v. Juniata College, 682 A.2d 350, 353 (Pa. Super. Ct. 1996)).

In addition, courts have held that “provisions in employee handbooks which

contain disclaimers or state there is no intent to create an employment contract are

sufficient to retain the at-will presumption.” Raines v. Haverford College, 849 F.

Supp. 1009, 1012 (E.D. Pa. 1994) (citing Ruzicki v. Catholic Cemeteries Ass’n,

610 A.2d 495, 496 (Pa. Super. Ct. 1992)) (finding no employment contract to

defeat the at-will presumption where the handbook’s disclaimer stated its purpose

“is not intended to give rise to any contractual obligations or to establish an

exception to the employment-at-will doctrine”)); Braun v. Wal-Mart Stores, Inc.,

24 A.3d 875, 941 (Pa. Super. Ct. 2011) (quoting Caucci v. Prison Health Servs.,

Inc., 153 F. Supp. 2d 605, 611 (E.D. Pa. 2001)) (“Generally, explicit disclaimers of

contract formation in an employee handbook preclude a breach of contract

claim.”). These principles are also true for implied contracts based on employee

handbooks. See Jacques v. Akzo Int’l Salt, Inc., 619 A.2d 748, 753 (Pa. Super. Ct.

1993) (“An employee handbook only forms the basis of an implied contract if the

employee shows that the employer affirmatively intended that it do so.”);

Rutherfoord v. Presbyterian-Univ. Hosp., 612 A.2d 500, 504 (Pa. Super. Ct. 1992)

(finding that an employee handbook containing “disclaimer” language could not

form the basis for a breach of contract action since an implied contract was not

formed as a matter of law); but see DiBonaventura v. Consol. Rail Corp., 539 A.2d

865, 867 (Pa. Super. Ct. 1988) (“An employee handbook that explicitly indicates

that discharge will be for just cause only may create an implied contract of

employment.”).

The at-will presumption can also be overcome by certain limited public

policy exceptions. Weaver, 975 A.2d at 563 (quoting Clay v. Advanced Computer

Applications, 559 A.2d 917, 918 (Pa. 1989) (noting that exceptions to the general

rule are applicable in “only the most limited of circumstances, where discharges of

at-will employees would threaten clear mandates of public policy”)). Specifically,

the Pennsylvania Supreme Court has recognized a select few exceptions to the at-

will presumption by allowing an employee to maintain a wrongful termination

claim where the employee is discharged for: (1) filing an unemployment

compensation claim; (2) failing to discourage a subordinate employee from

seeking workers’ compensation; (3) refusing to submit to a polygraph test; (4) jury

service; and (5) refusing to participate in a lobbying effort. Weaver, 975 A.2d at

564 (collecting cases). In each of these cases, despite finding an exception

applicable, the Pennsylvania Supreme Court has re-emphasized the strength of the

at-will presumption and has cautioned against “unwisely interfere[ing] with ‘the

legitimate interest of employers in hiring and retaining the best personnel

available.’” Weaver, 975 A.2d at 562 (citing Geary, 319 A.2d at 179). Indeed, the

court noted that:

In our judicial system, the power of the courts to declare

pronouncements of public policy is sharply restricted. Mamlin v.

Genoe (City of Philadelphia Police Beneficiary Ass’n), 17 A.2d 407,

409 (Pa. 1941). Rather, it is for the legislature to formulate the public

policies of the Commonwealth. The right of a court to declare what is

or is not in accord with public policy exists “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.” Mamlin, 17

A.2d at 409. Only in the clearest of cases may a court make public

policy the basis of its decision. Id. To determine the public policy of

the Commonwealth, we examine the precedent within Pennsylvania,

looking to our own Constitution, court decisions, and statutes

promulgated by our legislature. McLaughlin, 750 A.2d at 288; Hall v.

Amica Mutual Ins. Co., 648 A.2d 755 (Pa. 1994); Lurie v. Republican

Alliance, 192 A.2d 367 (Pa. 1963); Mamlin, 17 A.2d 407.

Weaver, 975 A.2d at 563.

Thus, to prevail on the basis of a public policy exception, a plaintiff “must

do more than show a possible violation . . . that implicates only her own personal

interest.” McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 289 (Pa.

2000). Plaintiffs bringing wrongful termination claims have not been successful

where they have only alleged claims that essentially express concern for their own

well-being, rather than “the protection of society from public harm, or the need to

vindicate fundamental individual rights[.]” Clark v. Modern Group, 9 F.3d 321,

333 (3d Cir. 1993) (“an at-will employee’s reasonable fear of adverse personal

consequence if he follows his employer’s directions is insufficient to make out an

action for wrongful discharge in Pennsylvania”).

In this case, the court finds that Ebert cannot avoid the presumption in favor

of at-will employment. Initially, the court notes that the employee handbook, upon

which Ebert relies to form an implied contract, explicitly states in numerous

instances throughout that employees are at-will, and that Genpact reserves the right

to terminate the employee’s employment at any time, with or without cause or

notice. (Doc. 9-1; Doc. 9-2.) In addition, the handbook indicates that “[t]his

Employee Handbook is neither an employment contract nor an agreement

guaranteeing employment and/or the provision of benefits of any kind for any

specified period of time[.]” (Doc. 9-1, p. 3.) Moreover, the handbook states that

any “agreements purporting to alter the ‘at-will’ nature of employment with the

Company in any manner must be in writing and signed by the Chief Executive

Officer or the Board of Directors of the Company.” (Id. at 4.) Genpact has thus

made its position abundantly clear that its employees fall under the at-will

presumption and that it has no desire to change this status, absent specific

procedural steps. The court finds that based on this language, no reasonable

employee could conclude that they were anything other than an at-will employee

unless they had been provided with a written agreement “purporting to alter the ‘at-

will’ nature of employment with the Company . . . signed by the Chief Executive

Officer or the Board of Directors of the Company.” (Id. at 4.)

The complaint does not attempt to rebut this presumption, nor does it include

an allegation that Ebert was provided with such a signed, written agreement.

Moreover, Ebert’s allegation in his brief that he “never saw the Exhibits attached

to the Defendant’s Brief, nor were they given to him at the time of his hire, or

thereafter” verges on disingenuous. (Doc. 18, p. 7.) In his complaint, Ebert

alleges that “[a]t the time of his hire by the Defendant, the Plaintiff was both orally

advised of and was briefly shown various company documents which included the

policies, terms, conditions and expectations of his employment, which included,

inter alia, an employee handbook or manual.” (Doc. 1-2, ¶ 4.) Neither the

complaint, nor Ebert’s brief, allege that there was more than one employee

handbook or manual; rather, based on the language in the complaint, it appears that

there was only one handbook or manual. (See, e.g., id. ¶¶ 4−5, 8, 10−11 (referring

to “an employee handbook or manual” and “the employee handbook”) (emphasis

added).) Ebert cannot rely on certain portions of the handbook in his complaint to

establish an alleged implied contract while simultaneously claiming to have never

seen the document and thus disregard other, dispositive portions.

Finally, the court notes that not only does the complaint fail to allege a

public policy violation sufficient to rebut the at-will employment presumption, the

complaint fails to allege any broader public policy concern implicated by the

termination of Ebert’s employment, other than his own personal consequences.

Thus, the court finds that Ebert has failed to rebut the at-will employment

presumption and that he cannot maintain a claim for wrongful termination or

retaliation based on an employment contract that did not exist as a matter of law.

Therefore, the court will grant the motion to dismiss on these grounds without

prejudice to Ebert filing an amended complaint.

B. Ebert’s Intentional Infliction of Emotional Distress Claim Will be

Dismissed Without Prejudice.

In order to state a claim for intentional infliction of emotional distress under

Pennsylvania law, a plaintiff must show that: “(1) the conduct [of the defendant

was] extreme and outrageous; (2) it [was] intentional or reckless; (3) it . . . caused

emotional distress; [and] (4) that distress [was] severe.” Hoy v. Angelone, 691

A.2d 476, 482 (Pa. Super. Ct. 1997). A claim for intentional infliction of

emotional distress also requires “an allegation of some type of physical injury,

harm, or illness related to the distress.” McCullough v. Wellspan York Hosp., No.

1:20-cv-979, 2021 U.S. Dist. LEXIS 23130, at *11 (M.D. Pa. Feb. 5, 2021) (citing

Robinson v. Family Dollar, Inc., No. 14-3189, 2015 U.S. Dist. LEXIS 68073 (E.D.

Pa. May 27, 2015)), report and recommendation adopted at 2021 U.S. Dist.

LEXIS 32933 (Feb. 23, 2021). The Restatement (Second) of Torts, which has

been adopted in Pennsylvania, instructs that:

It has not been enough that the defendant has acted with intent which is

tortious or even criminal, or that he has intended to inflict emotional

distress, or even that this conduct has been characterized by “malice,”

or a degree of aggravation that would entitle the plaintiff to punitive

damages for another tort.

Restatement (Second) of Torts § 46, cmt. d; Hoy, 720 A.2d at 754. Rather,

Pennsylvania courts have required plaintiffs to demonstrate that the defendant’s

conduct was “‘so extreme in nature as to go beyond all possible bounds of decency

such that it would be regarded as utterly intolerable to civilized society.’” Regan v.

Twp. of Lower Merion, 36 F. Supp. 2d 245, 251 (E.D. Pa. 1999) (quoting Mulgrew

v. Sears Roebuck & Co., 868 F. Supp. 98, 103 (E.D. Pa. 1994)).

Because this standard is so high, the Pennsylvania Supreme Court has noted

that “‘it is extremely rare to find conduct in the employment context that will rise

to the level of outrageousness necessary to provide a basis for recovery for the tort

of intentional infliction of emotional distress.’” Hoy, 720 A.2d at 754 (quoting

Cox v. Keystone Carbon, 861 F.2d 390, 395 (3d Cir. 1988)). Indeed, “[t]he only

instances in which courts applying Pennsylvania law have found conduct

outrageous in the employment context is where an employer engaged in both

sexual harassment and other retaliatory behavior against an employee.”6 Id.

(quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1487 (3d Cir. 1990)).

“In the context of a dismissal [from employment], it has been noted that

‘while loss of employment is unfortunate and unquestionably causes hardship,

often severe, it is a common event’ and cannot provide a basis for recovery for

intentional infliction of emotional distress.” Cox, 861 F.2d at 395 (quoting Brieck

v. Harbison-Walker Refractories, 624 F. Supp. 363, 367 (W.D. Pa. 1985), aff’d in

relevant part, 822 F.2d 52 (3d Cir. 1987)). Indeed, court have held that

“termination from a job is a legally insufficient basis for an intentional infliction of

emotional distress claim.” Sabo v. UPMC Altoona, 386 F. Supp. 3d 530, 557

(W.D. Pa. 2019).

6 Court have failed to find conduct outrageous “where an employer deceived an employee into

foregoing other employment, Cautilli v. GAF Corp., 531 F. Supp. 71, 74 (E.D. Pa. 1982), or

even where the employer engaged in a premeditated plan to force an employee to resign by

making employment conditions more difficult.” McCullough, 2021 U.S. Dist. LEXIS 23130 at

*13−14 (quoting Cox, 861 F.2d at 395−96 (citing Madreperla v. Williard Co., 606 F. Supp. 874,

880 (E.D. Pa. 1985))).

Outside of the employment context, courts have found the following to constitute sufficiently

outrageous conduct to maintain a claim for intentional infliction of emotional distress: “(1)

killing the plaintiff’s son with an automobile and then burying the body, rather than reporting the

incident to the police; (2) intentionally fabricating documents that led to the plaintiff’s arrest for

murder; and (3) knowingly releasing to the press false medical records diagnosing the plaintiff

with a fatal disease.” Dull v. W. Manchester Twp. Police Dep’t, 604 F. Supp. 2d 739, 756 (M.D.

Pa. 2009) (citing Hoy, 720 A.2d at 754). Thus, it is clear that the standard for what will

constitute conduct “so extreme in nature as to go beyond all possible bounds of decency” is a

high burden.

In this case, Ebert alleges intentional infliction of emotional distress based

on Genpact’s decision to terminate his employment after he took a survey

purporting to be anonymous in which he voiced his presumably objectionable

opinions about his work environment. As a result, Ebert claims to suffer from

“anxiety, tension headaches and other health problems.” (Doc. 1-2, ¶ 42.) The

court finds that this alleged conduct is not “‘so extreme in nature as to go beyond

all possible bounds of decency such that it would be regarded as utterly intolerable

to civilized society.’” Regan, 36 F. Supp. 2d at 251 (quoting Mulgrew, 868 F.

Supp. at 103). Indeed, courts have failed to find conduct outrageous “where an

employer deceived an employee into foregoing other employment, Cautilli, 531 F.

Supp. at 74, or even where the employer engaged in a premeditated plan to force

an employee to resign by making employment conditions more difficult.”

McCullough, 2021 U.S. Dist. LEXIS 23130 at *13−14 (quoting Cox, 861 F.2d at

395−96 (citing Madreperla, 606 F. Supp. at 880)).

While the court has no doubt that Ebert was distressed at having lost his

employment as a result of his responses to a work-related survey that he believed

to be anonymous, the loss of employment “‘is a common event’ and cannot

provide a basis for recovery for intentional infliction of emotional distress.” Cox,

861 F.2d at 395 (quoting Brieck, 624 F. Supp. at 367); see also Sabo, 386 F. Supp.

3d at 557 (“termination from a job is a legally insufficient basis for an intentional

infliction of emotional distress claim”). Therefore, the court will grant the motion

to dismiss on these additional grounds without prejudice to Ebert filing an

amended complaint.

CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss, Doc. 8, will be

granted without prejudice to Plaintiff filing an amended complaint. An appropriate

order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: March 31, 2022