PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-4307

_____________

MARIE GILLISPIE,

 Appellant

v.

REGIONALCARE HOSPITAL PARTNERS INC; 

ESSENT HEALTHCARE WAYNESBURG LLC, 

d/b/a Southwest Regional Medical Center; 

ESSENT HEALTHCARE PENNSYLVANIA INC; 

ESSENT HEALTHCARE INC; 

ESSENT HEALTHCARE; 

SOUTHWEST REGIONAL MEDICAL CENTER 

________________

On Appeal from the United States District Court 

for the Western District of Pennsylvania

(D. C. Civil No. 2-13-cv-01534)

District Judge: Honorable Mark R. Hornak

________________

Argued on September 26, 2017

Before: SMITH, Chief Judge, McKEE and RESTREPO, 

Circuit Judges

(Opinion filed: June 12, 2018)

Noah Geary (Argued)

Suite 225

Washington Trust Building
2

Washington, PA 15301

Counsel for Appellant 

Marla N. Presley (Argued)

Bethany S. Wagner

Jackson Lewis

1001 Liberty Avenue

Suite 1000

Pittsburgh, PA 15222

Counsel for Appellee

________________

OPINION OF THE COURT

________________

McKEE, Circuit Judge

We are asked to determine whether the District Court 

erred in dismissing a claim under the “whistleblower” 

protection provision of the Emergency Medical Treatment and 

Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd. The 

dispute here arises from Marie Gillispie’s allegations that the 

Southwest Regional Medical Center (the “Medical Center”) 

terminated her employment because she reported the Medical 

Center’s allegedly improper discharge of an unstable patient 

and because she reported its alleged substandard care of an 

admitted patient. 

The District Court granted summary judgment in favor 

of the Medical Center based upon its conclusion that Gillispie 

had not established a prima facie case for retaliation under 

EMTALA and because various common law claims that 

Gillispie included in her complaint were preempted by state 

statutes. For the reasons that follow, we will affirm.

I.

A. Legal Background
3

Although hospital emergency rooms were once used 

primarily to treat life-threatening injuries and serious medical 

conditions, they have since morphed into little more than 

primary care facilities for those who cannot afford routine 

medical care.1

This shift from medical emergency management to 

primary care treatment has resulted in a “grave financial 

challenge” for hospital administrators.2

 Many of them 

responded to this economic pressure by engaging in a practice 

known as “patient dumping.” That term refers to the practice 

of refusing to offer emergency room treatment to indigent 

patients who lack medical insurance, or transferring them to 

other medical facilities before their emergency medical 

condition has been stabilized.

3

 Congress attempted to address 

this situation by enacting EMTALA.4

 EMTALA imposes 

certain mandates on hospitals regardless of whether a patient 

who presents to an emergency room has the ability to pay for 

treatment.5

 1 See Kevin Grumbach et al., Primary Care and Public 

Emergency Department Overcrowding, 83 Am. J. Pub. 

Health. 372, 372 (1993), 

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1694659/pdf

/amjph00527-0070.pdf. 2 Genova v. Banner Health, 734 F.3d 1095, 1097 (10th Cir. 

2013); Torretti v. Main Line Hosps., Inc., 580 F.3d 168, 173 

(3d Cir. 2009) (“Congress enacted EMTALA in the mid1980s based on concerns that, due to economic constraints, 

hospitals either were refusing to treat certain emergency room 

patients or transferring them to other institutions.”) (citing 68 

Fed. Reg. 53,222, 53,223 (Sept. 9, 2003)). 

3 Torretti, 580 F.3d at 173. 4 Power v. Arlington Hosp. Ass’n, 42 F.3d 851, 856 (4th Cir. 

1994) (internal quotation marks omitted) (“Congress enacted 

EMTALA to address a growing concern with preventing 

‘patient dumping,’ the practice of refusing to provide 

emergency medical treatment to patients unable to pay, or 

transferring them before emergency conditions were 

stabilized.” (citation omitted)). 

5 Id.
4

EMTALA requires hospitals to first examine each

patient to determine whether an emergency medical condition 

exists.6 “[I]f the examination reveals the patient is suffering 

from an emergency medical condition, the hospital usually 

must stabilize the patient before getting into the business of 

trying to [discharge or] transfer him [or her] elsewhere.”7

 A 

hospital that either (1) fails to properly screen a patient, or (2) 

releases a patient without first stabilizing his or her emergency 

medical condition thereby violates EMTALA.8

 

Congress included a whistleblower provision in 

EMTALA to maximize the likelihood that violations would be 

reported, and that employees who reported them would not be 

punished by the employer hospital. That provision states in 

relevant part: “A participating hospital may not penalize or 

take adverse action . . . against any hospital employee because 

the employee reports a violation of a requirement of this 

section.”9

B. Factual Background

Marie Gillispie, a registered nurse, worked for the 

Southwest Regional Medical Center10 for 13 years and held the 

position of Quality Project Coordinator when she was 

terminated in November 2012. Her responsibilities as Quality 

Project Coordinator included evaluating patient care as well as 

addressing patient care issues involving possible medical 

errors.

On October 23, 2012, a pregnant patient, whom we will 

call “E.R.,” went to the Medical Center’s emergency room

 6 42 U.S.C. § 1395dd(a). 7 Genova, 734 F.3d at 1097 (citation omitted); see also 42 

U.S.C. § 1395dd(b)(1). 

8 A negligent violation of these provisions can subject a 

hospital or physician to civil penalties not exceeding $50,000.

42 USC § 1395dd(d)(1)(A). Additional penalties are 

provided for gross violations of EMTALA.

9 42 U.S.C. § 1395dd(i). 

10 Appellee Essent Healthcare owns and operates the Medical 

Center, which also operates as a subsidiary of Appellee 

RegionalCare Hospital Partners, Inc. 
5

complaining of discomfort, pain and vaginal bleeding. After 

examining E.R., the Medical Center’s emergency room

personnel discharged her and instructed her to “[g]o directly to 

Uniontown Hospital” to see a gynecologist. The Medical 

Center did not have a gynecologist on staff. 11 The Medical 

Center’s personnel did not transport E.R. to Uniontown 

Hospital, and they were unable to contact Uniontown to 

confirm whether E.R. got there.

The next day, October 24, 2012, Cynthia Cowie, who 

was the Medical Center’s Chief Executive Officer, organized 

a telephone conference to discuss what had happened to E.R. 

the night before. Gillispie participated in that call in her role 

as Quality Project Coordinator. 

On October 25th, the day after the conference call, a 

root cause analysis (RCA) meeting was called to investigate 

whether E.R.’s discharge violated EMTALA and to determine 

whether the circumstances surrounding E.R.’s discharge 

triggered any reporting requirements under EMTALA.

Gillispie contends that she insisted that EMTALA 

required the appropriate personnel at the Medical Center to 

report the circumstances surrounding E.R.’s discharge to the 

Pennsylvania Department of Health and/or the Pennsylvania 

Patient Safety Authority.

12 Despite Gillispie’s alleged 

 11 Appellant’s App’x Vol. I 11.

12 The Centers for Medicare and Medicaid Services (CMS) 

and the Office of Inspector General (OIG) are jointly 

responsible for enforcing EMTALA. The CMS authorizes 

investigations of EMTALA violations by State agencies and 

determines if a violation occurred. 42 C.F.R. § 489.20(m). 

The OIG assesses monetary penalties against violators. 42 

C.F.R. § 1003.500(a). Although EMTALA does not require 

violators to self-report instances of non-compliance, “[i]t 

should be considered a mitigating circumstance if a hospital 

took appropriate and timely corrective action in response to 

the violation.” 42 C.F.R. § 1003.520(a). Any “corrective 

action [though]. . . must include disclosing the violation to 

CMS prior to CMS receiving a complaint regarding the 

violation from another source or otherwise learning of the 
6

insistence that EMTALA required the Medical Center to selfreport, Cowie instructed the meeting attendees not to report the 

incident.

13 Nevertheless, at the conclusion of the RCA

meeting, Cowie did instruct two of the Medical Center’s 

directors to visit Uniontown Hospital to follow-up on E.R.’s 

treatment.

 Cowie convened a second meeting on October 25, 2012. 

According to Gillispie’s deposition, everyone in that meeting

agreed that the Medical Center’s discharge of E.R. failed to 

comply with EMTALA.14 Gillispie claimed that she and two 

other attendees argued that the Medical Center therefore had a 

legal obligation to report the circumstances of E.R.’s discharge

to the appropriate agency or authority.

15 According to her 

deposition, Gillispie told the group “I think it’s better to be on 

the safe side of safety and report it because they’re gonna find 

out anyway . . ..”16 Gillispie also claims that she “protested 

with [Cowie] several times, or protested with the group several 

times that [they] better let them know because it would come 

out.”17 Despite Gillispie’s alleged insistence, Cowie

steadfastly maintained that the incident did not have to be 

reported. Consequently, no one at the Medical Center reported 

E.R.’s discharge to any regulatory authority or agency.

Representatives of the Pennsylvania Department of 

Health did arrive at the Medical Center the next day, but they 

did not come to investigate E.R.’s discharge. Rather, they 

came to investigate a complaint regarding a patient with the 

initials L.S. L.S.’s family had complained that, despite 

Cowie’s contrary representations to them, the Medical Center 

had failed to discipline nurses for the poor care L.S. had 

received at the Medical Center. L.S.’s family had complained 

that L.S. was given all of his medications at once despite his 

inability to swallow the pills simultaneously. The family also 

 

violation.” Id. Gillispie argues she told Appellees that there 

was a duty to report E.R.’s discharge. See Appellant’s Br. 9. 13 Report & Recommendation Mot. to Dismiss 3; SA 186.

14 Appellees’ App’x 206.

15 Appellant’s App’x 206–07. 16 Appellant’s App’x 206. 

17 Appellant’s App’x 207.
7

complained that L.S. had not received certain medications on 

two separate occasions.

During an interview related to that investigation, 

Gillispie told the investigators about her involvement in the 

Medical Center’s internal review of L.S.’s treatment. She 

informed them that only one of the two nurses who had been 

assigned to L.S. had been disciplined for errors in his 

treatment. According to Gillispie, Cowie had falsely told 

L.S.’s family that both nurses had been disciplined.

That same day, Cowie learned of a letter that Gillispie 

had prepared to aid the Department of Health with its inquiry 

into L.S.’s treatment. According to Cowie, Gillispie claimed

that the letter had previously been drafted in connection with 

the Medical Center’s July 2012 investigation into L.S.’s care. 

The document was, in fact, dated July 2012, but the Medical 

Center’s information technology personnel determined that the 

letter had not been created until the day of the Department of 

Health’s investigation into L.S.’s treatment and that it had been

backdated. At the conclusion of the Department of Health’s 

visit, Cowie met with Gillispie and told her to leave the 

Medical Center’s premises for the day.

Gillispie complied, but, at Cowie’s request, she returned 

to the Medical Center on November 1, 2012—six days after 

the Department of Health’s visit. Upon her return, Gillispie

met with Cowie and gave her a letter that included the 

following text: 

I am also concerned about the EMTALA 

violation that occurred last week regarding the 

pregnant female and transfer of her from our ER 

to Uniontown Hospital’s ER. This is a serious 

EMTALA violation. As you know, you 

informed us that you decided to not report this 

incident to the Department of Health. As I stated 

to you at the meeting last week, I believe we 

must self-report this incident. Pam Carroll spoke 

up as well and agreed with me. I struggle to 

understand your reasons for deciding to not 

report this incident. I again suggest that you do 
8

so, immediately, as it would be in the Hospital’s 

best interest.18 

Cowie terminated Gillispie’s employment at the conclusion of 

that meeting.

Although Gillispie had not reported the Medical 

Center’s discharge of E.R. to any agency prior to her 

termination, she did subsequently report it.

19 She also filed this

suit alleging that her termination violated EMTALA’s 

whistleblower protection. 

C. Procedural History

Gillispie’s original five-count complaint alleged that 

her discharge violated EMTALA as well as Pennsylvania’s 

public policy. She subsequently amended the complaint by 

adding four counts under the Pennsylvania Medical Care 

Availability and Reduction of Error (MCARE) Act.20 The 

District Court subsequently dismissed those counts because the 

applicable statute of limitations had passed. 

Thereafter, a Magistrate Judge filed a Report and 

Recommendation recommending that the Medical Center be 

granted summary judgment on each of the five original counts 

because Gillispie had not established that she had engaged in 

any protected activity. The judge also recommended that her 

remaining state law claims be dismissed because she had a 

statutory remedy for any such violations and therefore was not 

entitled to relief based upon violation of public policy. The 

District Court agreed and entered an order awarding appellees 

summary judgment. This timely appeal followed.

21 

 18 Appellant’s Br. 11 (footnote added). 19 SA 24–32. 20 40 Pa. Cons. Stat. § 1303.101 et seq. 21 The District Court had federal question jurisdiction over 

Gillipsie’s EMTALA claim pursuant to 28 U.S.C. § 1331. It 

had supplemental jurisdiction to hear Gillipsie’s state law 

claims pursuant to 28 U.S.C. § 1367. The grant of summary 

judgment constitutes a final order. Thus, we have appellate 

jurisdiction under 28 U.S.C. § 1291.
9

II.

In reviewing a District Court’s grant of summary 

judgment, we apply the same test the District Court utilized, 

“viewing those inferences that may be drawn from the 

underlying facts in a light most favorable to the nonmoving 

party.”22 “Where the record taken as a whole could not lead a 

rational trier of fact to find for the nonmoving party, there is no 

genuine issue for trial.”23 However, when a party alleges facts 

that are blatantly contradicted by the record, we will “not adopt 

that version of the facts for purposes of ruling on a motion for 

summary judgment.”24

III.

As we noted at the outset, Gillispie claims that the 

Medical Center’s Chief Executive Officer fired her in 

retaliation for reporting an EMTALA violation based on the 

Medical Center’s discharge of E.R., thus violating the 

whistleblower protection contained in EMTALA. Gillispie 

also contends that, to the extent her termination was motivated 

by her participation in the Department of Health’s 

investigation of L.S.’s care, it also violated Pennsylvania 

public policy. We address each argument in turn. 

1.

“In the absence of direct evidence of retaliation, courts 

[have applied] the McDonnell Douglas25 burden-shifting 

framework to . . . [whistleblower claims]” under EMTALA.26 

That familiar approach was developed for claims brought 

under Title VII of the Civil Rights Act of 1964.27 Although we 

 22 Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 175 (3d 

Cir. 1999) (citation and internal quotation omitted). 

23 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 586–587 (1986) (citation and internal quotation 

marks omitted). 24 Scott v. Harris, 550 U.S. 372, 380 (2007).

25 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

26 See Elkharwily v. Mayo Holding Co., 823 F.3d 462, 470 

(8th Cir. 2016) (collecting cases).

27 42 U.S.C. §§ 2000e et seq.
10

have not yet specifically decided if we should apply that 

framework to resolve EMTALA claims, “we have found that 

if a statute does not provide for a burden-shifting scheme, 

McDonnell Douglas applies as the default burden-shifting 

framework.”28 Accordingly, we take this opportunity to hold 

that, absent direct evidence of retaliation, we should apply the 

burden-shifting scheme utilized in McDonnell Douglas to 

resolve whistleblower claims under EMTALA.

29

Accordingly, Gillispie must first establish a prima facie 

case of retaliation by producing sufficient evidence to prove: 

(1) she engaged in conduct that is protected by EMTALA; (2) 

her employer subsequently took an adverse employment action 

against her; and (3) the employer did so because she engaged 

in protected activity. 30 As with Title VII claims, Gillispie need 

not prove an actual EMTALA violation. Rather, she need only 

establish that “[s]he was acting under a good faith, reasonable 

belief that a violation existed.”31 The District Court concluded 

that Gillispie had not established such a prima facie case 

because she had not “made a ‘report’ as that term is considered 

under EMTALA.”32

EMTALA’s whistleblower provision protects only 

employees who have “report[ed] a violation” of one of the 

statute’s provisions.33 The District Court held that Gillispie’s 

conduct was, at most, an expression of disagreement with the 

Medical Center’s decision not to report a violation, rather than 

an actual report of an EMTALA violation.

34 On appeal, 

Gillispie argues that her EMTALA claim must survive 

summary judgment because she produced sufficient evidence

to show that she had made a report within the meaning of the 

 28 Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 

157–58 (3d Cir. 2013) (citations omitted). 

29 The parties here agree that this is the correct approach to 

resolve this dispute.

30 Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 

2015) (citation omitted). 31 Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 

(3d Cir. 1996) (citation and internal quotation marks omitted). 

32 Appellant’s App’x Vol. I 3.

33 42 U.S.C. § 1395dd(i). 34 Appellant’s App’x Vol. I 4.
11

statute and that this report resulted in her retaliatory 

termination.

A.

The text of EMTALA does not define “report,” and 

there is a dearth of case law defining that term as it is used in 

EMTALA’s whistleblower provision. Accordingly, we must 

begin with the premise that Congress intended the ordinary 

meaning of that term.

35 If the language is clear, our inquiry is 

at an end.36

The Supreme Court has explained that “[a] ‘report’ is 

‘something that gives information’ or a ‘notification,’ . . . or 

‘[a]n official or formal statement of facts or proceedings[.]’”37 

Put another way, it is “[a]n account brought by one person to 

another.”38 Thus, the term ordinarily refers to nothing more 

than the transmission of information. Given the absence of 

ambiguity in the text of EMTALA, our inquiry into the 

meaning of “report” need proceed no further. Viewing the 

record and all reasonable inferences derived therefrom in the 

light most favorable to Gillispie, it is clear that she failed to 

establish that she actually provided any information of an 

alleged EMTALA violation to anyone.

 35 Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997); Gross 

v. FBL Fin. Servs., Inc., 557 U.S. 167, 175–76 (2009)

(“Statutory construction must begin with the language 

employed by Congress and the assumption that the ordinary 

meaning of that language accurately expresses the legislative 

purpose” (internal quotation marks omitted)); see also 

Araujo, 708 F.3d at 158 (“Statutory analysis begins with the 

plain language of the statute, ‘the language employed by 

Congress.’” (citation omitted)). 

36 Robinson, 519 U.S. at 340 (citation omitted). 

37 Schindler Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S. 401, 

408–09 (2011) (citing Webster’s Third New International 

Dictionary 1925 (1986); Black’s Law Dictionary 1300 (6th 

ed. 1990). 38 Schindler Elevator Corp., 563 U.S. at 408 (citing 13 

Oxford English Dictionary 650 (2d ed. 1989)).
12

It is undisputed that the aforementioned series of 

meetings occurred on October 25, 2012. The first was the RCA 

meeting, which Cowie convened to investigate whether the 

Medical Center’s care of E.R. complied with EMTALA. The 

second meeting was a follow-up to the first. 

The parties disagree about exactly what happened in 

those meetings. Gillispie alleges that she first voiced her view 

that the Medical Center’s discharge of E.R. violated EMTALA

at the RCA meeting.

39 However, the District Court concluded 

that was not supported by the record. We agree; the record 

does not support Gillispie’s claim that she made such an 

assertion at the initial meeting. 

During his deposition, Michael Onusko, the Medical 

Center’s Senior Administrative Director of Emergency 

Outpatient and Environmental Services, testified that, at the 

end of the RCA meeting, all of the attendees “felt comfortable” 

with the conclusion that the Medical Center had not violated 

EMTALA.”40 That testimony is consistent with other evidence 

in this record. A document labeled “Staff Timeline” indicates 

that, on October 25th, “it was decided . . . that this was not a 

potential EMTALA violation and would not be reported as 

such.”41 In addition, the following people attended the RCA 

meeting: Kathi Comandi, the Medical Center’s Chief Nursing 

Officer; Pamela Carroll, the Medical Center’s Chief Quality 

Officer; and Bridgett Trump, the Medical Center’s Director of 

the Emergency Department and Intensive Care Unit. They 

agreed that each attendee believed that the Medical Center’s 

handling of E.R.’s visit had not violated EMTALA.

42 

Gillispie’s contention to the contrary is further undermined by 

her own deposition. She testified that the first meeting was a 

“fact-finding meeting”43 and that “at the end of [the first] 

meeting . . . Cindy had made a decision to send Bridget Trump 

and Mike Onusko to Uniontown Hospital that evening.”44 

When asked to recount the details of that meeting, Gillispie did 

 39 SA 187; Appellant’s App’x 268; Appellant’s Br. 19.

40 SA 122–24. 

41 SA 101–02.

42 SA 86, 87, 03–04. 

43 Appellant’s App’x 204.

44 Appellant’s App’x 205.
13

not testify that she told the attendees she believed the Medical 

Center’s discharge of E.R. violated EMTALA and that it 

should have been reported. 

Although Gillispie is entitled to the benefit of all 

reasonable factual inferences at this stage, she must 

nevertheless point to some evidence in the record to support 

her factual assertions.

45 We agree with the District Court’s 

conclusion that she failed to do so. 

2.

Gillispie also contends that she reported the Medical 

Center’s alleged violation during the second meeting. Her 

assertion is once again contradicted by her own deposition. 

According to her deposition, the second meeting began with an 

overview of the discussion Trump and Onusko had with 

Uniontown Hospital—the hospital to which E.R. had been

referred. Gillispie testified that after Trump and Onusko 

reported on their meeting with Uniontown Hospital, “there was 

a discussion. [Cowie] said, [] we won’t report this, we just had 

some EMTALA close calls in the last few weeks.”46 Gillispie 

testified that she responded by saying: “I think it’s better to be 

on the side of safety and report it . . . .”47 She also testified that

“[e]verybody in that meeting” “decided it was an EMTALA 

violation but it would not be reported . . . .”48 The decision not 

to report the violation—which, according to Gillispie, 

everyone acknowledged—went unchanged even after Gillispie 

“protested with the group several times that . . . we better let 

them know because it would come out.”49 

Thus, according to Gillispie’s own deposition, the 

attendees in the meeting were all aware of the potential 

EMTALA violation absent any information (or “report”) from 

 45 Fed. R. Civ. P. 56(e); see also Siegel v. Shell Oil Co., 612 

F.3d 932, 937 (7th Cir. 2010) (“Summary judgment is the put 

up or shut up moment in a lawsuit.”) (citation and internal 

quotation marks omitted). 46 Appellant’s App’x 206. 

47 Appellant’s App’x 206.

48 Appellant’s App’x 206.

49 Appellant’s App’x 206.
14

her. Gillispie neither alleged nor testified that the Medical 

Center personnel concluded that E.R.’s discharge violated 

EMTALA only after she notified them of the circumstances 

surrounding it. Any such evidence would paint a very different 

picture than the one that was before the District Court. Instead, 

Gillispie’s deposition establishes that she expressed a contrary 

opinion about E.R.’s care only after everyone had already 

“decided it was an EMTALA violation but it would not be 

reported . . . .”50 

We appreciate that Gillispie purportedly urged the 

attendees at the October meetings to report the circumstances 

surrounding E.R.’s discharge and told them that they “better let 

[the regulatory agencies] know because it would come out.”51 

However, the chronology is significant here. Gillispie’s 

deposition establishes that her efforts occurred only after 

Cowie and the other attendees had already concluded that 

E.R.’s discharge was a violation of EMTALA. That testimony 

is fatal to her attempt to now claim that she is entitled to the 

sanctuary of EMTALA’s whistleblower provision because she 

made a “report” under EMTALA. It is clear that she did not 

provide any “information” or “notification” about E.R.’s 

discharge, and she does not allege anything to the contrary.

52 

Rather, she testified that she merely disagreed with that 

decision.

Gillispie’s claimed protests that the better course would 

have been for the Medical Center to self-report the violation 

was not, without more, a “report” under EMTALA. They did 

not inform the Medical Center’s management of anything that 

was not already known. As the District Court explained, 

Gillispie’s “argument would appear to boil down to an 

assertion that EMTALA’s anti-retaliation provisions reach . . .

an employee’s disagreement (which we must and will presume 

 50 Appellant’s App’x 206.

51 Appellant’s App’x 207. 52 See Schindler Elevator Corp., 563 U.S. at 407–08. We 

realize, of course, that the Court was interpreting “report” as 

used in a different statute (the False Claims Act) in Schindler 

Elevator. However, the Court clearly stated that it was 

applying the ordinary meaning of “report” because there, as

here, the statute did not define the term. See id.
15

here to have been made in good faith) with the decision of 

hospital management not to report as an EMTALA violation a 

specific episode.”53

Title VII’s anti-retaliation provision is once again 

illustrative. Unlike EMTALA, Title VII provides protection 

against retaliatory discharge of an employee who “opposed” a 

Title VII violation or “participated in any manner” in an 

investigation into a violation.

54 We cannot ignore the 

difference between the breadth of that protection and the much 

narrower protection Congress provided under EMTALA for an 

employee who reports a violation. Congress had the benefit of 

hindsight when it drafted EMTALA, and its decision to 

exclude certain conduct that would be protected under Title VII 

suggests that EMTALA’s whistleblower protection is narrower 

than the analogous provision of Title VII.

55 

It is undisputed that Gillispie did not give anyone at the 

Medical Center any information about E.R.’s emergency room 

visit or discharge that they were not already aware of. Thus, 

Gillispie has failed to demonstrate that she engaged in activity 

protected by EMTALA’s whistleblower provision. She did not 

make a “report” and cannot establish a prima facie case for 

relief as a protected whistleblower under EMTALA.

56

3.

 53 Appellant’s App’x Vol. I 4. 

54 42 U.S.C. § 2000e-3(a).

55 See Richerson v. Jones, 551 F.2d 918, 928 (3d Cir. 1977)

(“[W]here a statute with respect to one subject contains a 

specific provision, the omission of such provision from a 

similar statute is significant to show a different intention 

existed. This principle of construction applies with equal 

force to statutory words.” (citation and internal quotation 

marks omitted)). 

56 The defendants also assert that, even if Gillispie has 

established a prima facie case of whistleblower retaliation, 

her claim nonetheless fails because Gillispie has not shown 

that the defendants’ claim that it fired her only because she 

backdated a document was pretextual. Given our holding that 

she cannot establish that she engaged in protected conduct, 

we need not reach this issue. 
16

In dismissing Gillispie’s EMTALA claim, the District 

Court explained: “there is no record evidence that the Plaintiff 

went to any governmental or regulatory agency with a ‘report’

of an EMTALA violation.” 57 However, no such evidence is 

necessary to establish that a “report” of an EMTALA violation 

has been made. Had Congress intended to limit EMTALA’s 

whistleblower protections to information given to regulatory 

agencies or governmental authorities, it could have easily done 

so. 58 Title 42 U.S.C. § 1395dd(i) is not limited to employees 

who make “official reports” or who report violations to 

regulatory or governmental agencies. Rather, Congress more 

broadly provided that “participating hospital[s] may not 

penalize . . . any hospital employee because the employee 

reports a violation of ” EMTALA. Congress clearly intended 

to include the transmission of information under the protective 

umbrella of a “report.” Thus, covered medical facilities cannot 

penalize anyone who informs someone about something that 

s/he believes in good faith to be a violation of EMTALA that 

was not otherwise known or had not otherwise been 

discovered.

Indeed, a contrary interpretation would strip employees 

(and patients) of the very protection Congress intended to 

provide in enacting this statute. It would encourage medical 

facilities to quickly fire any employee who made an internal 

report of a violation before the report was made to an outside 

authority. In such a situation, the hospital could correctly 

claim that the employee had not been penalized for any report 

under EMTALA because no such report had been made when 

the employee was penalized. 

Accordingly, we hold that EMTALA’s whistleblower 

provision protects employees who inform personnel in a 

covered facility of a possible EMTALA violation even though 

the employee does not also inform any governmental or 

regulatory agency. 

4.

 57 Appellant’s App’x Vol. I 3. 

58 Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d 197, 

202 (3d Cir. 1998) (noting that we must construe remedial 

legislation liberally).
17

Count II of the amended complaint alleged that the 

Medical Center discharged E.R. in violation of the safeguards 

provided by statutory and common law.59 Count V alleged that 

the Medical Center provided L.S. with poor care by giving him 

his medications all at once and twice failing to give him

medications individually.

60 

In Pennsylvania, an employer may terminate an 

employee without cause provided that “the dictates of public 

policy,” contract, or a statutory provision do not prohibit such 

termination.61 Absent any such prohibition, there is no 

common law cause of action in Pennsylvania for “wrongful 

termination.”62 Gillispie argues that, even though she claims 

wrongful termination in counts II and V, her claims may 

nevertheless survive summary judgment because they allege 

violations of various public policies. We have previously 

determined that Pennsylvania law does not recognize a 

common law cause of action for violating public policy if a 

statutory remedy exists. As we explained in Wolk v. Saks Fifth 

Ave., Inc., “the availability of a [statutory] remedy precludes 

other common law remedies even where the statute is not 

invoked.” 63 Although Gillispie’s wrongful discharge claims

are cloaked in the rhetoric of public policy, they are clearly 

prohibited as common law claims for violation of public policy 

because she could have brought them under Pennsylvania’s

MCARE Act.

 59 SA 188–89

60 Appellant’s App’x Vol. I 35.

61 Spierling v. First Am. Home Health Servs., Inc., 737 A.2d 

1250, 1253 (Pa. 1999) (citation omitted); see also Geary v. 

U.S. Steel Corp., 319 A.2d 174, 180 (Pa. 1974) (noting that 

“an employee at will has no right of action against his 

employer for wrongful discharge” where “no clear mandate 

of public policy is violated”). 

62 See, e.g., Geary, 319 A.2d at 180; see also, Clay v. 

Advanced Computer Applications, Inc., 559 A.2d 917, 918 

(Pa. 1989) (“It should be noted that, as a general rule, there is 

no common law cause of action against an employer for 

termination of an at-will employment relationship.”).

63 728 F.2d 221, 224 n. 3 (3d Cir. 1984).
18

Although counts II and V of Gillispie’s amended 

complaint explicitly allege that the appellees “violated, 

undermined[,] and implicated . . . the MCARE Act[,]” she now 

contends that the MCARE Act is inapplicable. 64 Her belated 

attempt to disclaim the MCARE Act, despite relying upon it at 

the outset, is likely explained by the District Court’s 

determination that counts VI-IX, which were brought solely 

pursuant to the MCARE Act, were time-barred by the 

applicable statute of limitations.

65 If she is correct about the 

inapplicability of the statute, the MCARE Act would not 

preclude her from recovering based upon common law and 

public policy. But Gillispie is wrong. Despite her 

protestations to the contrary, Gillispie’s claims are covered by 

the MCARE Act, and she is therefore precluded from relying 

on the alleged violations of common law and public policy.

Pennsylvania’s MCARE Act expressly incorporates the 

provisions of the Pennsylvania Whistleblower Law. The 

MCARE Act provides in relevant part as follows:

[a] health care worker who reports the 

occurrence of a serious event or incident . . . 

shall not be subject to any retaliatory action for 

reporting the serious event or incident and shall 

 64 Am. Compl. ¶¶ 48 (count II), 122 (count V), ECF No. 32. 

The “MCARE Act” refers to The Medical Care Availability 

and Reduction of Error Act of March 20, 2002.P.L. 154, as 

amended, 40 P.S. § 1303.101–1303.910, replaced its 

predecessor, the Health Care Services Malpractice Act

(Malpractice Act) of October 15, 1975, P.L. 390, No. 111 § 

101 et seq., as amended, 40 P.S. § 1301.101 et seq. The 

MCARE Act was established to safeguard reasonable 

compensation for victims of medical negligence and 

malpractice.

65 Gillispie v. Regionalcare Hosp. Partners, Inc., 2015 WL 

1839149, at *1 (W.D. Pa. Apr. 21, 2015) (noting that 

Gillispie “failed to assert her claims within the 180-day 

statute of limitations set forth in the Pennsylvania 

Whistleblower Statute, [43 Pa. Cons. Stat. § 1424(a)]”). 
19

have the protections and remedies set forth in . . 

. the Whistleblower Law.66

Pennsylvania’s Whistleblower Law generally provides a civil 

cause of action for an employee whose public employer 

retaliates for reporting the employer’s “wrongdoing or 

waste.”67 As we have explained, Gillispie is alleging that she 

was terminated in retaliation for reporting the Medical Center’s 

discharge of E.R. (count II) and deficient care of L.S. (count 

V). Her claims fall squarely within the ambit of the MCARE 

Act if they involve either an “incident” or a “serious event.” 

Gillispie concedes that she is not alleging she reported a 

serious event. Accordingly, we need only determine if her 

claim involves an “incident” under Pennsylvania law.

68

The Whistleblower Law defines an “incident” as:

[a]n event, occurrence or situation involving the 

clinical care of a patient in a medical facility 

which could have injured the patient but did not 

either cause an unanticipated injury or require 

the delivery of additional health care services to 

the patient.69

Count II clearly alleges retaliation for Gillispie’s 

alleged report of an “incident.” It is uncontested that E.R.’s

discharge could have, but did not, result in injury.

70 Gillispie 

argues E.R.’s discharge does not qualify as an “incident” 

because it did require the delivery of additional health care. 

She does not cite to anything in the record in making this 

argument. Accordingly, as the District Court correctly held, 

Gillispie’s assertion is unavailing because it completely lacks 

 66 40 Pa. Cons. Stat. § 1303.308(c) (emphasis and footnote 

added). 67 43 Pa. Cons. Stat. § 1423(a).

68 A “serious event” is “an event, occurrence or situation 

involving the clinical care of a patient in a medical facility 

that results in death or compromises patient safety and results 

in an unanticipated injury requiring the delivery of additional 

health care services to the patient.” 40 Pa. Cons. Stat. § 

1303.302. 69 Id. § 1303.302 (footnote added). 70 See Appellant’s Br. 29; SA 220. 
20

evidentiary support.71 Thus, we agree with the District Court’s 

conclusion that the claims in count II clearly could have been 

brought pursuant to the MCARE Act. 

Count V, which concerns the treatment of L.S., is 

similarly precluded because it too could have been brought 

under the MCARE Act. In an attempt to remove the claim 

from the ambit of the MCARE Act, Gillispie argues that her

report to the Department of Health regarding L.S.’s care did 

not involve an “incident” because the alleged poor care could 

not have caused L.S. injury.72 But again, Gillispie has failed

to produce evidence to defeat a motion for summary judgment. 

The District Court therefore had “little difficulty finding that a 

hospital patient receiving medication in a manner ill-suited for 

his physiology as well as failing to receive required medication 

as needed could have resulted in an injury to him and/or 

required that he received additional health care services.”73 

Gillispie has made no attempt to refute this finding, and 

contrary evidence does not exist in the record.74

The MCARE Act provides Gillispie with a statutory 

remedy, and, as a result, she may not also allege a public 

policy-based wrongful discharge claim. Accordingly, counts 

II and V of the amended complaint were properly dismissed. 

5.

In an eleventh-hour attempt to save counts II and V,

Gillispie now contends the public policy-based claims survive 

even in the light of an applicable remedial statute because any 

available remedies would be inadequate. In Pennsylvania, a 

 71 See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (summary

judgment should be entered against nonmoving party who 

fails to make showing sufficient to establish existence of 

element essential to that party’s case).

72 Appellant’s App’x Vol. I 35. 

73 Appellant’s App’x Vol. I 35.

74 At the motion to dismiss stage, the District Court did not 

dismiss counts II and V along with counts VI–XI because it 

could not, at that stage, determine whether the claims fell 

under the MCARE Act. Now that discovery is complete, it is 

clear that counts II and V are encompassed by that Act.
21

statutory remedy is inadequate only if it either (1) does not 

allow adjudication of the issue raised by the appellant, or (2) 

allows irreparable harm to occur to the appellant during the 

pursuit of the statutory remedy.

75 The MCARE Act provides 

whistleblowers with the full “protections and remedies set 

forth in the . . . Whistleblower Law.”76 Gillispie cannot 

establish that the MCARE Act’s damages are inadequate, and 

it is not at all apparent that they are. In any event, the District 

Court correctly concluded that the claims are now barred by 

the 180-day limitation period that governs claims brought 

under the MCARE Act.

IV.

For the foregoing reasons, we will affirm the judgment

of the District Court.

 75 LCN Real Estate, Inc. v. Borough of Wyoming, 544 A.2d 

1053, 1058 n.8 (Pa. Commw. Ct. 1988). 76 40 Pa. Cons. Stat. § 1303.308(c).