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Ortiz v. Priority Healthcare Group LLC

United States District Court, M.D. Pennsylvania

July 18, 2019

SONIA ORTIZ, Plaintiff
v.
PRIORITY HEALTHCARE GROUP LLC d/b/a THE GARDENS AT PALMYRA, Defendant

          MEMORANDUM

          KANE JUDGE

         Before the Court are Defendant Priority Healthcare Group LLC (“Defendant”)'s motion to dismiss Plaintiff Sonia Ortiz (“Plaintiff”)'s complaint (Doc. No. 8) and motion to dismiss Plaintiff's amended complaint (Doc. No. 12). For the reasons stated below, the Court will deny Defendant's motion to dismiss Plaintiff's complaint (Doc. No. 8) as moot and grant in part and deny in part Defendant's motion to dismiss Plaintiff's amended complaint (Doc. No. 12).

         I. BACKGROUND

         A. Procedural Background

         Plaintiff initiated the above-captioned action by filing a two-count complaint on August 27, 2018, asserting claims of (1) retaliation and wrongful termination in violation of the Pennsylvania Whistleblower Law (“PWL”) and (2) retaliation and wrongful termination in violation of Pennsylvania public policy against Defendant. (Doc. No. 1.) Defendant filed a motion to dismiss the initial complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. No. 8) on October 30, 2018 and a brief in support thereof (Doc. No. 9) on November 1, 2018. On November 8, 2018, Plaintiff filed a two-count amended complaint, asserting claims of (1) retaliation and wrongful termination in violation of the PWL and (2) wrongful termination in violation of Pennsylvania public policy. (Doc. No. 10.) Defendant filed a motion to dismiss Plaintiff's amended complaint pursuant to Rule 12(b)(6) (Doc. No. 12) on November 19, 2018 and a brief in support thereof (Doc. No. 13) on November 28, 2018. On December 4, 2018, Plaintiff filed a brief in opposition to Defendant's motion to dismiss Plaintiff's amended complaint. (Doc. No. 15.) Because the time for further briefing has passed, both motions are ripe for disposition.

         B. Factual Background [1]

         The allegations in the amended complaint relate to Plaintiff's allegedly wrongful and retaliatory termination of employment by Defendant in late April of 2018. (Doc. No. 10.) Plaintiff was employed as a cook at the Gardens at Palmyra (“the Gardens”), a nursing home owned by Defendant and located in Palmyra, Pennsylvania. (Id. ¶ 2, 6.) Defendant allegedly receives Medicare and Medicaid funds for providing medical services. (Id. ¶ 58.) From the beginning of her employment at the Gardens, Plaintiff allegedly noticed multiple Pennsylvania health regulation violations in the kitchen and attempted to remedy said violations. (Id. ¶ 7.) Among Plaintiff's alleged observations were the following: employees' failure to clean the kitchen, including leaving pans and drip trays in an unsanitary condition; the existence of undated food in the refrigerator; delivered foods being left outside for at least nine hours before being placed in the freezer; employees' failure to keep the freezer clean; employees' failure to keep the food storage area clean; and the refreezing of food that had thawed in a defective freezer.[2] (Id. ¶ 7.) She contends that, as a result of the health regulation violations, Plaintiff and the Gardens' dietician regularly had to dispose of improperly-stored food. (Id. ¶ 11.) In March of 2018, Plaintiff alleges that the food stored in a known-to-be-defective freezer had to be discarded because it spoiled when the freezer entered “defrost mode” and thawed its contents. (Id. ¶¶ 12-14.) Plaintiff also alleges that Defendant regularly wasted food items prior to site visits by Pennsylvania Department of Health and Human Services (“DHHS”) officials. (Id. ¶ 15.) Specifically, Plaintiff alleges that upon the arrival of DHHS officials at the Gardens, the receptionist would call the kitchen to warn the kitchen employees of the impending inspection, at which point the kitchen employees were required to examine all food storage areas and discard any food products that were questionably labeled or stored, even if they were not spoiled. (Id. ¶ 16-17.) Plaintiff asserts that one such occurrence in April of 2018 resulted in two thirty-gallon garbage bags of food products being discarded. (Id. ¶ 18.) Plaintiff further contends that employees failed to use the freezer log to track food freshness properly, and paperwork was fraudulently completed to indicate food freshness and proper storage temperatures. (Id. ¶¶ 16-17.) Plaintiff also alleges that her supervisor, Edward Harding (“Mr. Harding”), instructed her on multiple occasions to prepare and serve spoiled food, which Plaintiff refused to do. (Id. ¶¶ 23, 27.) She contends that residents at the Garden were regularly served food that was prepared in ways that failed to comply with professional standards of food service safety and were served marshmallows in place of appropriate snacks. (Id. ¶¶ 28, 29.) Plaintiff further alleges that the Gardens ran out of sanitizer for the dishwasher in mid-April of 2018. (Id. ¶ 33.)

         Plaintiff alleges that she notified Mr. Harding of the health regulation violations at the beginning of her employment, but the violations remained unresolved. (Id. ¶ 8.) She alleges that on March 22, 2018, she reported her concerns regarding the health regulation violations to Defendant's regional director of operations, Ilan Richland (“Mr. Richland”), detailing the specific regulations being violated by the unsanitary condition of the kitchen, food storage areas, and freezer, as well as the failure to place delivered food in the freezer promptly. (Id. ¶ 9.) Plaintiff later allegedly notified Mr. Richland of other health regulation violations, including the regular fabrication of records regarding food, freezer, and refrigerator temperature and the spoiling of food products, and noted that these violations posed a serious health risk to the Gardens' residents. (Id. ¶¶ 21, 22.) Plaintiff alleges that she also informed Mr. Richland that she had already reported the health regulation violations to Mr. Harding, but no corrective action had been taken, and she would not follow procedures and policies that violated state law and put residents at risk. (Id. ¶¶ 30, 31.) Plaintiff contends that she regularly complained of Defendant's non-compliance with health regulations to Mr. Harding, Mr. Richland, and the Gardens' dietician throughout the time she was employed at the Gardens, but her complaints were ignored, and corrective action was not taken. (Id. ¶¶ 32, 35.)

         In mid-April of 2018, Plaintiff allegedly contacted the DHHS and reported the health regulation violations occurring at the Gardens, as well as Defendant's practice of warning the kitchen employees when DHHS officials arrived so that they could dispose of improperly stored or labeled food products. (Id. ¶¶ 36, 37.) Plaintiff asserts that on April 24, 2018, DHHS officials conducted an inspection of the Gardens, which resulted in a determination that the Gardens failed to maintain sanitary conditions and store food properly in its kitchen and was in violation of various state health regulations. (Id. ¶¶ 38, 39.) Plaintiff alleges that as a result of the investigation, Defendant had to dispose of a multitude of improperly stored or labeled food products. (Id. ¶ 40.) Shortly after the DHHS officials completed their inspection, Mr. Harding informed Plaintiff that he knew she had lodged the complaint against the Gardens due to the level of detail of the complaint and similarity between the details of the complaint and the issues previously raised by Plaintiff. (Id. ¶ 41.)

         Plaintiff alleges that the day after the DHHS inspection, Mr. Harding gave Plaintiff a written warning for her failure to complete her “Cook Tour Sheet” by the end of her shift.[3] (Id. ¶ 43.) Plaintiff contends that she did not initial the Cook Tour Sheet because it contained inaccurate and falsified temperature information and that she informed Mr. Harding of her reasoning. She asserts that she confronted the employee who falsified the information in the presence of Mr. Harding, but no corrective action was taken, and Mr. Harding instructed Plaintiff to sign the Cook Tour Sheet. (Id. ¶¶ 44, 45.) Plaintiff alleges that when she refused to do so, Mr. Harding threatened to discipline her for insubordination. (Id. ¶ 45.) Plaintiff further alleges that upon receipt of the written warning, she contacted Mr. Richland and notified him of the warning and why she had not signed the Cook Tour Sheet. (Id. ¶ 46.) She purportedly also told Mr. Richland that she believed Mr. Harding was targeting her in retaliation for Plaintiff contacting DHHS. (Id. ¶ 51.) Plaintiff alleges that Mr. Harding summoned her to his office on April 29, 2018, where he repeatedly told her that he knew she had called DHHS and that her continued complaints could cause the Gardens to shut down and its employees to lose their jobs. (Id. ¶¶ 52, 53.) Plaintiff asserts that Mr. Harding terminated her employment on April 30, 2018, at which time he told her that “it wasn't working out.” (Id. ¶ 54.)

         II. LEGAL STANDARD

         Federal notice and pleading rules require the complaint to provide the defendant notice of the claim and the grounds upon which it rests. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). The plaintiff must present facts that, accepted as true, demonstrate a plausible right to relief. Fed.R.Civ.P. 8(a). Although the Federal Rule of Civil Procedure 8(a)(2) requires “only a short and plain statement of the claim showing that the pleader is entitled to relief, ” a complaint may nevertheless be dismissed under Federal Rule of Civil Procedure 12(b)(6) for its “failure to state a claim upon which relief can be granted.” See Fed.R.Civ.P. 12(b)(6).

         When ruling on a motion to dismiss under Rule 12(b)(6), the Court must accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn from them, viewed in the light most favorable to the plaintiff. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). The Court's inquiry is guided by the standard of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under Twombly and Iqbal, pleading requirements have shifted to a “more heightened form of pleading.” See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To avoid dismissal, all civil complaints must set out “sufficient factual matter” to show that the claim is facially plausible. See id. The plausibility standard requires more than a mere possibility that the defendant is liable for the alleged misconduct. As the Supreme Court instructed in Iqbal, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         Accordingly, to determine the sufficiency of a complaint under Twombly and Iqbal, the United States Court of Appeals for the Third Circuit has identified the following steps a district court must take when determining the sufficiency of a complaint under Rule 12(b)(6): (1) identify the elements a plaintiff must plead to state a claim; (2) identify any conclusory allegations contained in the complaint “not entitled” to the assumption of truth; and (3) determine whether any “well-pleaded factual allegations” contained in the complaint “plausibly give rise to an entitlement for relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 675, 679).

         In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents.” See Mayer v. Belichick, 605 F.3d 223, 230 (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). A court may also consider “any ‘matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case.'” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2004)).

         III. ...


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