By Fiona Steele, J.D. Candidate, Kacie Kergides of Montgomery McCracken Walker & Rhoads LLP and Kimberly L. Sachs of Montgomery McCracken Walker & Rhoads LLP
Employers take note—in Pennsylvania, the 180-day statute of limitations for whistleblower claims starts running when an employee receives definitive notice of an adverse employment decision—not on the effective date of termination. At least, that is what one Pennsylvania court held in April 2020 when it had the opportunity to clarify the statute of limitations under the Pennsylvania Whistleblower Act (the Act). Now, once an employee has been informed of an employer’s intent to take adverse employment action against him or her, whether by letter or word of mouth, the employee has 180 days in which to file a complaint. Failure to do so within that time period will result in any later claim being dismissed as untimely.
The Clock Starts
Recently, in Lynch v. Pennsylvania State University, the Pennsylvania Court of Common Pleas of Dauphin County clarified the statute of limitations for claims under the Act.[3] The Act provides that a plaintiff has 180 days to bring suit following an alleged whistleblower violation. However, there has been some debate over when, exactly, the 180 days begins to run.
According to the court in Lynch, the 180-day clock begins to run on the day that an employee receives definitive notice of the adverse employment decision and not on the effective date of termination. The plaintiff in Lynch found this out the hard way, when the court dismissed his whistleblower claims against the Pennsylvania State University and its employees (collectively, Penn State defendants) because they were time-barred.
Race Against Time
On August 23, 2019, Dr. Scott A. Lynch, the former Intercollegiate Athletics Team Orthopedic Physician for the Penn State University football team and Director of Athletic Medicine for Penn State University, filed a whistleblower suit against multiple defendants, including Penn State University and James Franklin, Penn State’s head football coach. Dr. Lynch alleged the defendants unlawfully retaliated against him by terminating his employment after he made a “good faith reporting of Defendant James Franklin’s alleged attempts to influence and interfere with the Plaintiff’s medical management and return-to-play decisions related to student athletes.” According to Dr. Lynch, Franklin repeatedly tried to interfere with his autonomous medical authority to determine whether and when a student-athlete was cleared to play. The Penn State defendants never reached the substance of these allegations; rather, the Penn State defendants objected to the claim as untimely, stating that it was time-barred by the 180-day statute of limitations.
Dr. Lynch’s effective date of termination was March 1, 2019, which is less than 180 days from when he filed suit on August 23, 2019. Therefore, if the clock began its countdown on the effective date of termination, Dr. Lynch’s claim would not be barred by the statute of limitations. Penn State disagreed and argued in that the statute of limitations began when Dr. Lynch received definitive notice of the adverse employment action. That is, on January 28, 2019, one of the defendants informed Dr. Lynch that someone had asked for his termination. If that was not definitive enough, on February 4, 2019, a “Dear Colleague” letter written by one of the defendants was published and circulated. The letter stated that on March 1, 2019, there would be a change in the leadership of the university’s athletic medicine department. Furthermore, it announced that another individual would be taking over Dr. Lynch’s position as Director of Athletic Medicine.
The question before the court was whether the whistleblower statute of limitations started running on March 1 (the effective date of termination) or on February 4 (when Dr. Lynch was definitively informed that adverse employment action was being taken against him). After discussing relevant case law and public policy, the court ultimately sided with the Penn State defendants. The court concluded that “it is clear from the face of the Complaint that the ‘alleged violation’ for purposes of the Act occurred when Plaintiff received the Dear Colleague letter from Defendant Kevin P. Black, M.D. This is when he was, at the very least, threatened with being discharged from his duties as Orthopedic Physician for the Penn State football team and Director of Athletic Medicine at Penn State.” The court additionally noted that while it is unclear if Dr. Lynch received that letter, he did have an exit interview on February 21, 2019. Therefore, at the very latest, Dr. Lynch was aware of his termination on February 21, 2019 and his claims against the Penn State defendants were still time-barred.
The Final Countdown
Whether Dr. Lynch’s claims against the Penn State defendants had any merit will remain unknown due to a technical foot fault regarding the 180-day filing requirement. This case, however, still provides important learning lessons for colleges and universities with athletic programs faced with similar allegations, i.e., undue influence from the athletic department (e.g., coaches and staff) over what should otherwise be independent medical authority.
Procedurally, timing errors like this one can oftentimes keep a case out of court no matter how legitimate the underlying claims are. Moving forward, Pennsylvania employers should keep meticulous records that identify exactly when and how an employee receives initial notice of adverse employment action.
Substantively, colleges and universities with athletic programs should take steps to ensure they have a strong response to allegations that a head coach interfered with a team doctor’s autonomous and independent authority regarding medical management of athletes and return-to-play decisions—a claim that is far too common today. An athletic program’s main focus must be creating and maintaining policies and practices that allow the medical personnel to have complete autonomy and independence in medical decisions (e.g., clearing a player to return to play). A program can achieve that in a number of ways.
Some schools have adopted a medical model of reporting where the medical personnel assigned to a particular sports program report to the medical arm of the university, not the head coach or athletic department. Other schools have clear policies and practices on final decision making authority as it relates to medical decisions. No matter how the school gets there, the destination is independence, and for lawsuit purposes, being able to prove that independence for the medical providers will not only arm defendants with a strong defense if litigation begins, but will also, and more importantly, promote student-athlete safety by ensuring that doctors are not pressured to prematurely return student-athletes to play. For more information on the independent medical model, be sure to check out “Behind the Lines: Recent Changes to D1 Athletics Programs’ Reporting Structures,” published in Sports Medicine and the Law Summer 2019.
[3] See Lynch v. The Pennsylvania State University, et al., No. 2019-cv-06337 (Ct. C.P. Dauphin Cty., Pa. 2020).
