PITTSBURGH – A Monroeville nursing home facility says that a former administrator who reported positive COVID-19 diagnoses at the facility to both county and state health authorities – and believes he was fired in retaliation – did not show he engaged in protected activity under the Pennsylvania Whistleblower Act.
Ron Berlingo of Greensburg first filed suit in the Allegheny County Court of Common Pleas on Aug. 24 versus Monroeville Operations, LLC (doing business as “Monroeville Rehabilitation and Wellness Center”), of Monroeville.
“Berlingo began employment at The Grove in Irwin on July 30, 2019 as a nursing home administrator. He was assigned to the defendant’s Monroeville Rehab and Wellness Center in or around September 2019 in the same position. The Center is a long-term care facility. Berlingo performed his job throughout his employment with defendant without receiving any formal discipline,” the suit said.
“The Center encountered its first positive COVID-19 test in or around late June or early July 2019. Berlingo immediately contacted the Pennsylvania Department of Health to report this development. The Allegheny County Health Department also became involved with the situation.”
An infection control specialist was assigned to the Center, but Berlingo said the facility was not reporting accurate data to the specialist, and adds he was reprimanded by a supervisor for taking it upon himself to talk to state health authorities without an attorney present.
However, Berlingo went out of his way to reach out to the specialist again to discuss ongoing discrepancies in the actual number of COVID-19 positive patients at The Center, versus the number being reported to state health authorities.
“The COVID-19 pandemic is a clear public health issue that requires accurate and timely reporting to local and state health authorities. Such accurate and timely reporting absolutely is essential among the most vulnerable population that resides in long-term care facilities, such as the Monroeville Health and Wellness Center,” per the suit.
After he was again reprimanded for taking these actions, Berlingo said he was terminated upon his arrival to work on July 29 of this year.
Counsel for Monroeville Operations, LLC filed preliminary objections on Oct. 9, alleging that Berlingo’s wrongful termination claim in violation of Pennsylvania Public Policy “is legally insufficient as a statutory remedy exists covering his claims.”
“While not articulating the public policy upon which his claims are purportedly premised, it is clear from the context of the complaint that plaintiff is asserting that he was a protected whistleblower under Pennsylvania’s Whistleblower Law and that his termination is actionable as an exception to the at-will employment doctrine,” the defendant’s preliminary objections stated.
The defendant argued that the public policy exception is unavailable to Berlingo, because the Pennsylvania Whistleblower Law already provides him with a statutory remedy to recover for any purported wrong.
“Because Pennsylvania’s Whistleblower Law provides the statutory framework under which plaintiff could recover for alleged retaliation, his public policy claim fails.”
Monroeville Operations added that Pennsylvania is “an at-will employment state and that an at-will employee may be discharged at any time, for any reason, or no reason at all.”
As a result, Berlingo filed an amended complaint on Nov. 5, without the violation of public policy claim.
UPDATE
Monroeville Operations then filed an answer (along with new matter) to the amended complaint on Dec. 11, alleging Berlingo failed to state claims upon which relief could be granted.
“Plaintiff has failed to state any claim upon which relief can be granted. 3. For the purpose of preserving a defense, plaintiff’s claims are barred, in whole or in part, by the applicable statutes of limitations, the doctrines of waiver, release, unclean hands and laches, and because he lacks standing to sue under Pennsylvania law,” the answer read, in part.
The defendant added the plaintiff’s claims are barred and any recovery of damages is precluded:
• Because the receipt of state and/or federal funds alone are insufficient to establish that defendant is a public body, subjecting it to the requirements of the Pennsylvania Whistleblower Act;
• Because there is no evidence that plaintiff made a good faith report to defendant or an appropriate authority involving claims of wrongdoing or waste by defendant;
• Because he cannot prove by a preponderance of the evidence that defendant engaged in a protected activity covered by the Pennsylvania Whistleblower Act;
• Because he cannot prove by a preponderance of the evidence that defendant retaliated against him for engaging in any protected activity;
• Because defendant acted with a good-faith basis that it was complying with the law, failed to mitigate his damages and any harm that he suffered was due to his own conduct.
For retaliation in violation of the Pennsylvania Whistleblower Law, the plaintiff is seeking all damages as appropriate, including but not limited to back pay, front pay, lost fringe benefits, compensatory damages, punitive damages, pre- and post-trial interest attorney’s fees and costs, plus a trial by jury.
The plaintiff is represented by Adam R. Gorzelsky of Gorzelsky Law, in Greensburg.
The defendant is represented by Marla N. Presley and Joanna M. Rodriguez of Jackson Lewis, in Pittsburgh.
Allegheny County Court of Common Pleas case GD-20-009050
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com