United States District Court, M.D. Pennsylvania
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).
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
Factual Background 
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. (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.)
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. ¶¶
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.)
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. (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.)
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).
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
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).
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.