PITTSBURGH – An employee of a carpet cleaning service who claimed he was wrongfully terminated during the COVID-19 pandemic when he objected to working in areas where social distancing and wearing of protective personal equipment was not being practiced, now denies that his former company provided him with personal protective equipment.
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.
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.
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.”
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.
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.”
Klein sustained the preliminary objections and dismissed the plaintiff’s case on Oct. 22.
“Upon considerations of defendants’ preliminary objections to the first amended complaint and brief in support, it is hereby ordered, adjudged and decreed that the preliminary objections are sustained, and plaintiff’s complaint is hereby dismissed with prejudice,” Klein said.
After the plaintiff appealed Klein’s decision to the Superior Court of Pennsylvania on Nov. 9, Klein issued a memorandum two days later explaining the case had been mistakenly dismissed.
“On Oct. 22, 2021, the undersigned entered an order granting defendants preliminary objections and dismissing plaintiff’s complaint. This Court never intended to sign or enter that order but did so by mistake. The Court intended to sign and enter an order denying defendants preliminary objections. Consequently, the undersigned suggests that this Court remand this case, so that the order granting preliminary objections can be vacated and the intended order denying preliminary objections may be entered,” Klein said.
Subsequently, the Superior Court vacated the prior dismissal of the case in October, relinquished jurisdiction of the matter and remanded the action to the Allegheny County Court of Common Pleas for further proceedings, on Jan. 4.
UPDATE
On Jan. 11, Cleaning Services Corporation filed an answer and matter to Holtzman’s first amended complaint.
“Plaintiff fails to state a claim upon which relief could be granted. Plaintiff’s employment was at-will and plaintiff’s employment was properly terminated. Plaintiff’s refusal to perform his work constituted a voluntary quit. At all times, defendant provided plaintiff with PPE. Defendant has no control over non-employees. No public policy exists in Pennsylvania requiring employees to retain employees who refuse to perform life-sustaining jobs because of the actions of non-employees,” the new matter stated.
In response, Holtzman replied to the new matter on Jan. 31, denying the company’s statements as nothing more than conclusions of law, which required no official response.
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
Superior Court of Pennsylvania case 1347 WDA 2021
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com