PITTSBURGH – A carpet cleaning service accused of wrongfully terminating a former employee for his objection to working in areas where protective measures were not being practiced during the COVID-19 pandemic, has again argued that the plaintiff has not shown a public policy exception to his at-will employment status.
Zachary Holtzman of McKeesport first filed suit in the Allegheny County Court of Common Pleas on March 12 versus Cleaning Services Corporation (doing business as “ServiceMaster Carpet & Upholstery”), of Pitcairn.
According to the complaint, Holtzman was hired as a full-time area manager for the defendant near the end of 2019. During that time, the plaintiff resided with his elderly grandfather, for whom he provided care.
In March 2020, the suit explained that the COVID-19 pandemic took hold across the country, leading to Allegheny County issuing a stay-at-home order. Over the course of the pandemic, the stay-at-home orders were revised and the county began to let people return to work.
“Plaintiff advised defendant that because he cared for his elderly grandfather, who is an at-risk person for severe COVID-19, he could only work in situations where people could and did heed social distancing guidelines and wear appropriate PPE. In June of 2019, defendant sent plaintiff to the Jewish Community Center in the South Hills area of Pittsburgh,” the suit stated.
“On June 19, 2020, plaintiff observed that people were not social distancing and not wearing PPE in the immediate areas in which plaintiff worked. When plaintiff stated that he could not work where COVID-19 precautions were not being followed, defendant sent plaintiff home. Defendant thereafter terminated plaintiff’s employment.”
The plaintiff alleged this action was in violation of county and state policies pertaining to COVID-19.
“As a direct and proximate result of defendant’s wrongful conduct, plaintiff suffered from the following injuries and damages: Lost income and his financial security, damage to his reputation, embarrassment, shame and emotional distress, a diminution in enjoyment of his life, a diminishing ability to earn wages, pain and suffering and attorney’s fees and costs,” per the suit.
The defendant filed preliminary objections on June 8, charging that the plaintiff did not illustrate a public policy exception to his at-will employment status, something which applies only in the “most limited” of circumstances.
“Pennsylvania follows the employment at-will doctrine, which means that employers are generally allowed to terminate employment with or without cause absent statutory or contractual authority to the contrary. Pennsylvania courts have held that there is a public policy exception to this rule which prohibits employers from terminating employees for reasons that violate a clear mandate of public policy,” the objections stated.
“Holtzman’s only allegations of a public policy violation are that he observed individuals in the public not social distancing and not wearing PPE in the areas where Holtzman was allegedly working – which do not amount to any affirmative actions on the part of his employer to violate any public policy.’ Neither Pennsylvania nor Allegheny County have ever established a public policy exception making an employer responsible for the actions of the general public. Furthermore, neither Pennsylvania nor Allegheny County have established a public policy exception based upon the allegations set forth in Holtzman’s complaint.”
Rather, the defendant argued that the public policy exception requested by Holtzman would have disastrous effects upon every drug store, grocery store, restaurant, and commercial cleaning service in the Commonwealth of Pennsylvania.
“Commercial cleaning services have proved essential in protecting the health and well-being of the Commonwealth and its citizens throughout the COVID-19 pandemic. ServiceMaster had no legal duty to continue to employ Holtzman based on any public policy exception, and Holtzman’s complaint avers no statutory or contractual authority to the contrary to the presumption of employment-at-will,” the objections said.
“As his complaint fails to implicate any public policy exception to Pennsylvania’s at-will employment doctrine, Holtzman’s complaint cannot go forward. Accordingly, ServiceMaster’s preliminary objections should be sustained, and Holtzman’s complaint should be dismissed with prejudice.”
In a response to the preliminary objections filed on July 20, Holtzman’s counsel maintains that its wrongful termination claim was properly pled, since in its view, the termination led to “a clear mandate of public policy being violated.”
“OSHA notes that employers are required to implement physical distancing and provide face coverings for unvaccinated and/or at risk employees. In addition to federal law, during the times relevant to this complaint, the Commonwealth of Pennsylvania's Department of Health was also enforcing universal face covering requirements to slow the spread of COVID-19,” the response stated.
“As such, there is a clear public policy of social distancing and face coverings that applied to the parties’ employment environment. These public policies go beyond the pale of jury duty and retaliation for asserting workers’ compensation claims. As of the date of this brief at least 625,180 Americans and 27,906 Pennsylvanians have died as a result of COVID-19.”
Despite plaintiff counsel’s arguments, Allegheny County Court of Common Pleas Judge Arnold I. Klein granted the defense’s preliminary objections on July 28, on the condition that the plaintiff was provided 30 days in which to amend their complaint.
UPDATE
After an amended complaint was brought on Aug. 26, the defendant explained in subsequent preliminary objections filed on Sept. 15 that Holtzman “now seeks to create a new public policy exception to the at-will employment doctrine restricting an employer from terminating an employee who refuses to perform their job, despite being provided all feasible and appropriate safeguards.”
“The first amended complaint relies upon the ‘public policy exception’ to the at-will employment doctrine. Where applicable, this exception prohibits an employer from terminating an employee in ‘the most limited of circumstances where the termination implicates a clear mandate of public policy,” the objections stated.
“For these purposes, ‘it is for the legislature to formulate the public policies of the Commonwealth. The allegations set forth in the first amended complaint fail to implicate any clear legislative mandate of public policy. Neither the United States, Pennsylvania, nor Allegheny County legislatures have established a public policy making an employer responsible for third-parties failure to adhere to social-distancing and mask-wearing guidelines during COVID-19.”
Moreover, the arguments the plaintiff cited do not correlate with public policy, the defendant argued.
“The executive orders, recommendations, and guidance documents referenced to by Holtzman are irrelevant, insofar as such documents cannot articulate the Pennsylvania public policy. Moreover, none of the executive orders, recommendations, or guidance documents referred to by Holtzman mandate an employer to control the actions of third-parties or retain an employee who refuses to perform their work duties,” the objections said.
“Further, the U.S. District Court for the Middle District of Pennsylvania, in applying Pennsylvania law, expressly denounced a similar request for a public policy exception in Warner v. United Natural Foods, Inc. As such, the first amended complaint fails to plead with legal sufficiency any facts that would give rise to a claim for wrongful termination under the public policy exception.”
For a count of wrongful termination in violation of state public policy, the plaintiff is seeking damages in excess of $35,000, plus interest and costs.
The plaintiff is represented by David M. Kobylinski and Peter T. Kobylinski of Praetorian Law Group, in Pittsburgh.
The defendant is represented by Richard B. Sandow and Mark E. Casper Jr. of Jones Cregg Creehan & Gerace, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-21-002210
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com