PHILADELPHIA – Counsel for an associate at a drug treatment center stands by claims that their client’s employer and its personnel violated public policy by retaliating against him for exercising his rights and making a good faith report of wrongdoing and waste, refuting the center’s motion to dismiss the case.
A drug treatment center and its personnel counter a lawsuit from one of its associates, alleging he was retaliated against for exercising his rights and making a good faith report of wrongdoing and waste, by arguing that its allegations fail to state a claim upon which relief could be granted.
Steven Jenkins first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on March 25 versus Northeast Treatment Center, Tanya Johnson, Jennifer Herman, Ann Marie Weinberg and Dr. Julia Monico, all of Philadelphia.
“In or around August 2019, plaintiff was hired by defendant NET as a Behavioral Health Associate. In or around January of 2020, plaintiff noticed an error in the rate of pay he received. Upon information and belief, defendant NET paid employees hazard pay due to the novel COVID-19 virus. However, defendant NET failed to pay employees hazard pay on any overtime hours. Plaintiff reported this issue to his supervisors,” the suit stated.
“Plaintiff also reached out to the Pennsylvania Department Labor and Industry’s Labor Relations. Plaintiff sought their guidance on what he should do in regard to his concern related to his COVID-19 hazard pay. Plaintiff completed paperwork as instructed by Labor Relations. Subsequently, Plaintiff exchanged a series of emails with the defendant NET’s Director of Payroll, defendant Weinberg.”
After being assured that he should take his concerns to the facility’s upper management, specifically defendant Vice-President Herman, and then doing so, Jenkins said his issues remained unaddressed.
Shortly thereafter, the suit stated a mass email was sent to all employees informing them that there had been a clerical error and that all employees would be receiving retroactive hazard pay for overtime hours worked during the pandemic.
Almost immediately thereafter, defendants began disproportionally writing plaintiff up, for various incidents that occurred over the following months, prior to his termination in December 2020.
These incidents included being suspended for feeling unsafe in his assignment of transporting a patient to Eagleville after just working a 16-hour shift, being written up after missing two weeks works due to being exposed to a patient with COVID-19 and questioning the facility’s policies in their presumed lack of adherence to COVID-19 protocols.
At the time of his firing, the suit said that the defendants informed plaintiff that the reason for his termination was a combination of reasons and that plaintiff’s services were no longer needed.
Jenkins said he requested a termination letter, and the defendants informed plaintiff he would need to contact HR. Plaintiff, shortly after being terminated, emailed HR requesting a termination letter or documentation related to his termination, but to date, adds he has received no response.
“On Jan. 7, 2021, plaintiff received a paycheck for all hours worked. To date, plaintiff has not been paid for his accrued sick, vacation, or administrative time. Upon information and belief, defendants have failed to pay plaintiff for such time in retaliation for his reporting and opposition to their unlawful behavior. That as a result of defendants’ conduct and comments, plaintiff was caused to sustain serious and permanent personal injuries, including permanent psychological injuries,” per the suit.
“As a result of the acts and conduct complaint of herein, plaintiff has suffered and will continue to suffer the loss of income, the loss of salary, bonuses, benefits, and other compensation which such employment entails, and plaintiff also suffered future pecuniary losses, emotional pain, humiliation, suffering, inconvenience, loss of enjoyment of life, and other non-pecuniary losses.”
The defendants filed a motion to dismiss the complaint on June 22, for failure of the plaintiff’s case to state a claim.
“Plaintiff’s first cause of action – arising under 42 U.S.C. Section 1983 for violations of the First and Fourteenth Amendments to the United States Constitution – fails to state a claim because plaintiff has not alleged sufficient facts to show the requisite ‘state action’ to support such a claim,” the dismissal motion stated.
“Likewise, the Second Cause of Action – arising under the Pennsylvania Whistleblower Law – fails to state a claim because plaintiff has not alleged sufficient facts to show that NET or its employees are a ‘public body’ under the PWL. In both instances, mere alleged receipt and use of federal or state funds is not enough.”
The motion said that the suit relies on the allegations that NET “receives federal and state funding and that absent that funding, NET would not be able to provide all of the services it currently is able to”, but that “this allegation is insufficient under existing precedent to show the requisite ‘state action.”
“Plaintiff’s claims against the individual defendants fare no better because plaintiff’s amended complaint (like his original complaint) alleges no facts as to the individual defendants or how their actions were under ‘color of law.’ This alone justifies dismissal as to those defendants,” according to the motion.
UPDATE
Counsel for the plaintiff filed a response to the dismissal motion, claiming that it is inaccurate, in that the defendants both acted under color of state law and constituted a public body under the PWL.
“Plaintiff pled sufficient facts to establish the first cause of action that plaintiff’s First Amendment and Fourteenth Amendment Substantive Due Process rights were violated as to be subject to redress under 42 U.S.C. Section 1983. Moving defendants acted under color of state law and as state actors to further NET’s function as a drug treatment center. NET’s receipt of considerable federal and state funding and NET’s selection by the Philadelphia Department of Human Services to carry out this public service in NET’s respective districts of Philadelphia, render NET a state actor,” the response stated.
“As to plaintiff’s second cause of action, plaintiff has plead sufficient facts that establish that defendants violated public policy by retaliating against plaintiff for having exercised his rights and made a good faith report of wrongdoing and waste and that said retaliation was ‘state action’ committed by a ‘public body’ as defined by the Pennsylvania Whistleblower Law. Thus, plaintiff’s pleading is sufficient for this Court to deny moving defendants’ Rule 12(b)(6) motion to dismiss.”
For counts of violating the First and Fourteenth Amendments to the U.S. Constitution and the Pennsylvania Whistleblower Law, the plaintiff is seeking actual damages, compensatory damages, punitive damages, back pay, front pay, reinstatement, attorneys’ fees, litigation costs, pre- and post-judgment interest, as well as an adjudication and declaration that defendant’s conduct as set forth herein is in violation of the 42 U.S.C. Section 1983, the First and Fourteenth Amendments to the U.S. Constitution, and Pennsylvania Whistleblower Law, plus a trial by jury.
The plaintiff is represented by Catherine W. Smith of Derek Smith Law Group, in Philadelphia.
The defendants are represented by Douglas Diaz of Archer & Greiner in Haddonfield, N.J. and Robert J. Haurin of Nachmias Morris & Alt, in Conshohocken.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-01421
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com