Warner v. United Natural Foods, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DENNIS WARNER, : 1:20-cv-1758

:

Plaintiff, :

:

v. : Hon. John E. Jones III

:

UNITED NATURAL FOODS, INC., : :

:

Defendant. :

MEMORANDUM

January 13, 2021

Presently pending before the Court is Defendant United Natural Foods,

Inc.’s Motion to Dismiss Plaintiff’s Amended Complaint (the “Motion”). (Doc. 6).

The Motion has been fully briefed, (Docs. 7, 8, 13), and is ripe for disposition. For

the following reasons, the Motion shall be granted.

I. BACKGROUND

In accordance with the standard of review applicable to a motion to dismiss,

the following facts are derived from Plaintiff’s complaint and viewed in the light

most favorable to him.

Defendant United Natural Foods, Inc. (“UNFI”), a Rhode Island corporation,

maintains a wholesale food distribution operation in York, PA. (Doc. 4 at ¶¶ 2,

19). On December 16, 2019, UNFI hired Plaintiff Dennis Warner as a loader at

that York location. (Id. at ¶ 7).

In the months immediately thereafter, the COVID-19 pandemic hit the

Commonwealth of Pennsylvania. On March 6, 2020, Governor Wolf declared a

state of emergency pursuant to 35 Pa. C.S. § 7301(c). (Id. at ¶ 10). On March 19,

Governor Wolf issued an executive order prohibiting all non-life sustaining

businesses from operating. (Id. at ¶ 11). For those essential businesses permitted

to remain open, compliance with certain mitigation efforts, such as social

distancing protocols, was mandated. (Id.). Because Defendant UNFI is a

wholesale food distributer, it qualified as an “essential” business and was permitted

to remain in operation subject to those mitigation standards. (Id. at ¶ 19).

The March 19 order also directed the Secretary of Health to identify further

disease mitigation efforts. (Id. at ¶ 12). On April 15, 2020, the Secretary of Health

ordered essential businesses to implement certain social distancing, mitigation, and

cleaning protocols to help contain the spread of the COVID-19. (Id. at ¶ 13). The

Secretary of Health also instructed that employees of essential businesses who

develop COVID-19 symptoms “should notify their superior and stay home.” (Id.

at ¶ 15). Soon after, the Department of Health created an online COVID-19

complaint form for business patrons and employees to report any relevant issues or

concerns (such as lack of social distancing, employees coming to work sick, or

employers not providing employees with enough personal protective equipment)

directly to state public health officials. (Id. at ¶¶ 17–18). In the weeks preceding

the March 19 and April 15 orders from, respectively, the Governor and the

Secretary of Health, Plaintiff “noticed that Defendant was not implementing social

distancing and COVID-19 mitigation measures,” as required. (Id. at ¶ 21).

In early May, Plaintiff began experiencing COVID-19 symptoms. (Id. at ¶

22). He visited his doctor, who advised him to self-quarantine pending the result

of a COVID-19 test. (Id. at ¶ 23). Plaintiff then notified two supervisors at work

of his situation; Plaintiff was “directed” by those supervisors to self-quarantine and

not report to work until he received the test result. (Id. at ¶¶ 24–25).

In the meantime, Plaintiff proceeded to report Defendant to the Department

of Health, using the department’s online COVID-19 complaint form, for what he

perceived to be violations of the Secretary of Health’s April 15 order. (Id. at ¶ 26).

These alleged violations included “not adequately sanitizing the York County

facility, [] not enforcing social distancing amongst its employees, and [] not

notifying its employees when they came in contact with a coworker who had

contracted COVID-19.” (Id.). In his complaint, Plaintiff identified himself as an

employee of UNFI. (Id.). Plaintiff avers, upon information and belief, that a state

official then contacted Defendant regarding his complaint. (Id. at ¶ 28).

On or around May 20, 2020, UNFI’s Director of Human Resources, Lori

Leedy, reached out to Plaintiff Warner. (Id. at ¶ 29). Ms. Leedy asked,

allegedly “[i]n a hostile manner,” why Plaintiff believed UNFI had not been

adequately sanitizing the facility. (Id.). Ms. Leedy also explained to Plaintiff that

UNFI could not notifiy employees about other employees who contracted COVID-

19 due to certain confidentiality concerns. (Id.).

The next day, Plaintiff received a negative result from his COVID-19 test.

(Id. at ¶ 30). On his next scheduled workday, May 27, Plaintiff returned to the

York facility. (Id. at ¶ 31). While attempting to hand Ms. Leedy paperwork that

confirmed his negative test result, Ms. Leedy told Plaintiff that he should not

bother because he was soon going to be terminated. (Id.). When Plaintiff asked

for clarification, he was allegedly ignored and escorted off the premises. (Id. at ¶

32).

Plaintiff thereafter filed suit in the Pennsylvania Court of Common Pleas of

York County on August 26, 2020. (Doc. 1, Ex. A). Defendant subsequently

removed that action to this Court on September 25. (Doc. 1). After Defendant

moved to dismiss, (Doc. 2), Plaintiff on October 6, 2020, filed an Amended

Complaint, which is now the operative pleading. (Doc. 4). The Amended

Complaint sets forth a single cause of action against UNFI: wrongful termination

in violation of public policy. (Id. at ¶¶ 35–46). Plaintiff sets forth two theories in

support of his wrongful termination claim: first, that he was wrongfully terminated

in retaliation for his complaint to the Department of Health; alternatively, that he

was wrongfully terminated because he missed work pending the result of his

COVID-19 test in accordance with the March 19 and April 15 executive orders

recommending that employees stay home if symptomatic. (Id. at ¶¶ 33–34).

Defendant filed the instant motion on October 20, 2020, (Doc. 6), and a brief

in support on the same day, (Doc. 7). Plaintiff filed his brief in opposition on

October 30, (Doc. 8), and Defendant filed its reply brief on November 13, (Doc.

13). Accordingly, the Motion is ripe for our review. For the following reasons, we

shall grant the Motion and dismiss the Amended Complaint for failure to state a

claim upon which relief can be granted.

II. STANDARD OF REVIEW

In considering a motion to dismiss pursuant to Rule 12(b)(6), courts “accept

all factual allegations as true, construe the complaint in the light most favorable to

the plaintiff, and determine whether, under any reasonable reading of the

complaint, the plaintiff may be entitled to relief.” Phillips v. Cty. of Allegheny, 515

F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d

361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule

12(b)(6), a court generally should consider only the allegations in the complaint, as

well as “documents that are attached to or submitted with the complaint, . . . and

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).

A Rule 12(b)(6) motion tests the sufficiency of the complaint against the

pleading requirement of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a

short and plain statement of the claim showing that the pleader is entitled to relief,

“in order to give the defendant fair notice of what the claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked

by Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it

must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To

survive a motion to dismiss, a civil plaintiff must allege facts that “raise a right to

relief above the speculative level….” Victaulic Co. v. Tieman, 499 F.3d 227, 235

(3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the

plausibility standard, the complaint must indicate that defendant’s liability is more

than “a sheer possibility.” Iqbal, 556 U.S. at 678. “Where a complaint pleads

facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the

line between possibility and plausibility of entitlement to relief.’” Id. (quoting

Twombly, 550 U.S. at 557).

Under the two-pronged approach articulated in Twombly and later

formalized in Iqbal, a district court must first identify all factual allegations that

constitute nothing more than “legal conclusions” or “naked assertions.” Twombly,

550 U.S. at 555, 557. Such allegations are “not entitled to the assumption of truth”

and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss.

Iqbal, 556 U.S. at 679. Next, the district court must identify “the ‘nub’ of the …

complaint – the well-pleaded, nonconclusory factual allegation[s].” Id. Taking

these allegations as true, the district judge must then determine whether the

complaint states a plausible claim for relief. See id.

However, “a complaint may not be dismissed merely because it appears

unlikely that the plaintiff can prove those facts or will ultimately prevail on the

merits.” Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S. at 556-57). Rule 8

“does not impose a probability requirement at the pleading stage, but instead

simply calls for enough facts to raise a reasonable expectation that discovery will

reveal evidence of the necessary element.” Id. at 234.

III. DISCUSSION

Employment in Pennsylvania is typically at-will. See McLaughlin v.

Gastrointestinal Specialists, Inc., 750 A.2d 283, 287 (Pa. 2000) (“[T]he

presumption of all non-contractual employment relations is that it is at-will and

that this presumption is an extremely strong one.”) (emphasis in original); White v.

FedEx Corp., No. 1:19-CV-00325, 2019 WL 5102168, at *4 (M.D. Pa. Oct. 11,

2019) (“In the context of an employment-at-will relationship, Pennsylvania courts

have long recognized that an employer may terminate an employee for any reason

absent a contractual or statutory provision to the contrary.”) (citing McLaughlin,

750 A.2d at 286). There is one exception to this general rule: when a termination

violates a “clear mandate of public policy.” Weaver v. Harpster, 975 A.2d 555,

563 (Pa. 2009). This exception applies “only in the most limited circumstances,”

and “the power of the courts to declare pronouncements of public policy is sharply

restricted.” Id. (citing Mamlin v. Genoe (City of Philadelphia Police Beneficiary

Ass'n), 17 A.2d 407, 409 (Pa. 1941)). The Supreme Court of Pennsylvania has

instructed that a court should utilize the public policy exception “[o]nly in the

clearest of cases.” Id.

What constitutes “public policy” in the Commonwealth is determined by

reference to judicial decisions of Pennsylvania courts, the Pennsylvania

constitution, and statutes promulgated by the Pennsylvania legislature.

McLaughlin, 750 A.2d at 288. An employee’s subjective belief that his

termination violated public policy is not sufficient: “[A]bsent a violation of law, it

is difficult for an at-will employee seeking recovery for wrongful discharge to

point to a common law, legislative, or constitutional principle from which a clear

public policy [mandate] could be inferred.” Clark v. Modern Grp., Ltd., 9 F.3d

321, 328 (3d Cir. 1993). Accordingly, “Pennsylvania courts have recognized the

public policy exception where the employer: (1) compels the employee to engage

in criminal activity; (2) prevents the employee from complying with a duty

imposed by statute; or (3) discharges the employee when a statute expressly

prohibits such termination.” Zorek v. CVS Caremark Corp., No. 1:13-CV-1949,

2014 WL 12487695, at *3 (M.D. Pa. Apr. 16, 2014) (citing Tanay v.Encore

Healthcare, LLC, 810 F.Supp.2d 734, 738 (E.D. Pa. 2011)).

Here, Plaintiff’s wrongful termination claim is premised on two theories.

Plaintiff first asserts that Defendant UNFI violated Pennsylvania public policy by

terminating him in retaliation for his complaint to the Department of Health

concerning Defendant’s allegedly lackluster COVID-19 mitigation efforts. (Doc. 4

at ¶ 33). Alternatively, Plaintiff avers that he was terminated for missing work

pending the results of his COVID-19 test in accordance with the Governor’s and

Secretary of Health’s instructions. (Id. at ¶ 34).

Defendant UNFI argues that Plaintiff’s wrongful termination claim is fatally

flawed for two reasons. First, Plaintiff’s claim must be dismissed because he

identifies nothing in the Pennsylvania Constitution, no statute promulgated by the

legislature, no administrative regulation, or any judicial decision “that articulates a

public policy UNFI violated or otherwise thwarted by terminating his

employment.” (Doc. 7 at 13). To the extent that Plaintiff depends on the

Governor’s March 19, 2020 order or the Secretary of Health’s April 15 order

regarding COVID-19 mitigation efforts, Defendant argues that those executive

orders are not sources from which clear pronouncements of public policy can

derive. (Id.). Second, Defendant argues that even if either executive order could

constitute sources of public policy for purposes of a wrongful termination claim,

Plaintiff’s claim still fails because he does not allege UNFI asked him to commit a

crime, prevented him from complying from a statutorily imposed duty, or

terminated his employment in contravention of any statutory prohibition. (Id. at

14).

To Defendant’s first point, Plaintiff counters by arguing that his termination

did violate public policy as pronounced by the legislature. Plaintiff points to the

Emergency Management Services Code (the “Emergency Code”), promulgated by

the legislature at 35 Pa. C.S. § 7101 et seq. According to Plaintiff, the legislature

provided a mechanism for the governor to wield certain emergency powers during

disasters, and because the COVID-19 mitigation orders—including the instruction

to potentially symptomatic employee to stay home from work—were issued

pursuant to those emergency powers, Defendant’s conduct implicated a matter of

public policy. (Doc. 8 at 13–15).

Regarding Defendant’s second argument, Plaintiff claims that an employee

need not have an “affirmative duty” to report misconduct to a state agency for a

retaliatory termination to violate public policy. In support of this argument,

Plaintiff points to two cases: Highhouse v. Avery Transp., 660 A.2d 1374, 1378

(Pa. Super. Ct. 1995), where the Pennsylvania Superior Court held that terminating

an employee in retaliation of that employee’s application for unemployment

benefits violated public policy, and Shick v. Shirey, 716 A.2d 1231 (Pa. 1998),

where the Supreme Court of Pennsylvania similarly ruled that an employer cannot

retaliate against an employee who applies for workers’ compensation benefits. (Id.

at 19). Plaintiff argues that since applying for those benefits are voluntary actions,

and the plaintiffs there had no affirmative duty to do so, likewise here it is no

consequence that Plaintiff Warner was not statutorily obligated to report

Defendant to the Department of Health. (Id.).

Plaintiff also argues that, under his second theory, he was essentially

terminated for refusing to commit a crime because violating the Governor’s and

Secretary of Health’s quarantine instruction could theoretically risk a fine and jail

time. (Id. at 17). He analogizes his termination to an employee wrongfully fired

for refusing to serve a drunk patron in violation of the state liquor code. (Id.)

(citing Woodson v. AMF Leisureland Centers, Inc., 842 F.2d 699, 702 (3d Cir.

1988)).

We agree with Defendant on both points. Neither of Plaintiff’s theories of

liability can succeed as a matter of law.

First, we are skeptical that Plaintiff has alleged an articulable and

recognizable public policy that can premise a wrongful termination claim under

either theory. This is not to say that we condone Defendant’s alleged conduct.

Indeed, we are considerably troubled by Plaintiff’s allegations. But the Supreme

Court of Pennsylvania has instructed courts to ascertain whether an employer’s

conduct implicates public policy by reference to the state constitution,

Pennsylvania judicial precedent, and statutes promulgated by the Pennsylvania

legislature. See McLaughlin, 750 A.2d at 288; Weaver, 975 A.2d at 563. We see

no clear pronouncement of public policy regarding an employer’s responsibilities

during the COVID-19 crisis in any of those sources that can sustain Plaintiff’s

theories.1

Further, we have not identified any case to support the proposition that an

executive order alone can articulate the Commonwealth’s public policy. And this

makes sense—an executive order, especially one enacted under the Emergency

1 Plaintiff claims that a Pennsylvania court “has already recognized that the public policy

exception applies under nearly identical circumstances.” (Doc. 8 at 17). We disagree with that

assertion. Plaintiff points to Gaya v. Person Directed Supports, Inc., No. 2020-C-1241 (Pa. C.P.

Lackawanna Cnty.), where a trial court in September 2020 denied an employer’s preliminary

objection to an employee’s wrongful termination claim that arose, like here, in the context of

COVID-19 mitigation orders. But the trial court order was completely silent as to why the

preliminary objection was overruled. (Doc. 8-2 at 2). There is nothing about this bare trial court

order that amounts to a clear pronouncement of Pennsylvania public policy, and we are not

convinced it holds any persuasive value here.

Code to respond to a crisis, is usually temporary, and does not undergo the same

rigorous enactment process as a statute or administrative regulation.

We are sympathetic to Plaintiff’s argument that Defendant’s conduct

potentially undermined the Commonwealth’s ability to mitigate the spread of

COVID-19. It is also true that the Governor’s and Secretary of Health’s powers to

mandate certain pandemic mitigation standards do derive from statute, namely the

Emergency Code. But as a federal court sitting in diversity jurisdiction, we must

heed the instructions of the Pennsylvania Supreme Court: the public policy

exception should only apply in “the most limited of circumstances where the

termination implicates a clear mandate of public policy in this Commonwealth.”

McLaughlin, 750 A.2d at 287 (emphasis added). We are hesitant to pronounce that

an employment decision potentially inconsistent with an executive branch’s

COVID-19 mitigation efforts clearly violates public policy where there is no

affirmative indication that the legislature would agree. See Weaver, 975 A.2d at

563 (“The right of a court to declare what is or is not in accord with public policy

exists ‘only when a given policy is so obviously for or against public health, safety,

morals, or welfare that there is a virtual unanimity of opinion in regard to it.’”)

(quoting Mamlin, 17 A.2d at 409). The Pennsylvania Supreme Court has

recognized that even though a court may determine public policy in the absence of

any legislative pronouncement, it must only be in certain narrow circumstances:

There must be a positive, well-defined, universal public sentiment, deeply

integrated in the customs and beliefs of the people and in their conviction of

what is just and right and in the interests of the public weal. . . . If, in the

domain of economic and social controversies, a court were, under the guise

of the application of the doctrine of public policy, in effect to enact

provisions which it might consider expedient and desirable, such action

would be nothing short of judicial legislation, and each such court would be

creating positive laws according to the particular views and idiosyncrasies of

its members. Only in the clearest cases, therefore, may a court make an

alleged public policy the basis of judicial decision.

Mamlin, 17 A.2d at 409. Plaintiff has not convincingly shown us any “well-

defined, universal public sentiment” that Defendant violated. Id. Again, to

reiterate, we do not excuse Defendant’s alleged conduct. But public policy of the

Commonwealth of Pennsylvania cannot be based on the whims of an individual

judge or the allegations of an aggrieved employee. See White, 2019 WL 5102168,

at *4 (“Absent an articulated public policy mandate, there can be no claim for

wrongful discharge under Pennsylvania law.”). Because Plaintiff has not identified

any clear pronouncement of public policy that Defendant allegedly violated,

Plaintiff cannot state a claim for wrongful termination in violation of public policy.

But even if we found that clearly-established public policy was implicated—

that is, if we were inclined to let this case proceed given the obvious public health

concerns inherent in dismissing an employee who reports (presumably in good

faith) violations of the executive branch’s COVID-19 mitigation efforts—we

would still be compelled to dismiss this case based on Defendant’s second

argument. As we have stated, application of the public policy exception has been

largely limited to circumstances where an employer: “(1) compels the employee to

engage in criminal activity; (2) prevents the employee from complying with a duty

imposed by statute; or (3) discharges the employee when a statute expressly

prohibits such termination.” Zorek, 2014 WL 12487695, at *3; see also Fraser v.

Nationwide Mut. Ins. Co., 352 F.3d 107, 111 (3d Cir. 2003)). Plaintiff has failed to

plausibly allege that any of these three circumstances are present here, under either

of his two theories of liability.

For the first theory—that he was wrongfully terminated based on his

complaint to the Department of Health—Plaintiff was not under any affirmative or

statutory duty to report alleged violations of the executive branch’s COVID-19

mitigation orders. Plaintiff’s argument that one need not be under any affirmative

duty to make a report does not withstand scrutiny. Pennsylvania state and federal

courts have consistently dismissed wrongful termination claims premised on

retaliation theories where the plaintiff had no duty to make the report he or she was

allegedly fired for submitting. See Donahue v. Fed. Exp. Corp., 753 A.2d 238, 244

(Pa. Super. Ct. 2000) (observing that Pennsylvania courts have “repeatedly rejected

claims that a private employer violated public policy by firing an employee for

whistleblowing, when the employee was under no legal duty to report the acts at

issue”); Spierling v. First Am. Home Health Servs., Inc., 737 A.2d 1250, 1254 (Pa.

Super. Ct. 1999) (rejecting a nurse’s wrongful termination claim because she had

no legal duty to report past Medicare fraud); Hennessy v. Santiago, 708 A.2d 1269,

1273–74 (Pa. Super. Ct. 1998) (rejecting a mental-healthcare worker’s wrongful

termination claim because the plaintiff was not required to affirmatively report the

suspected rape of a patient and so her subsequent termination was not illegal); see

also Smith v. Calgon Carbon Corp., 917 F.2d 1338, 1345–47 (3d Cir. 1990)

(holding that the public policy exception to at-will employment doctrine was

inapplicable where no “positive law” required the employee to report employer’s

environmental violations); Kent v. Keystone Human Servs., 68 F. Supp. 3d 565,

570 (M.D. Pa. 2014) (“In the present case, Plaintiff cites no specific statutory or

administrative provision that placed upon her (or a person in her position) the

affirmative duty to report Defendant’s alleged violations. Accordingly, the Court

finds that she does not fit within the public policy exception to Pennsylvania's

general at-will employment policies, and will dismiss Count IV of her amended

complaint.”); Zorek, 2014 WL 12487695, at *5 (“Because we find that Plaintiff

had no affirmative legal duty to report dispensing errors, we must dismiss his

wrongful discharge claim.”). Even though the Department of Health created an

online complaint form for employees to submit reports of suspected violations of

the Commonwealth’s COVID-19 mitigation orders, this still did not impose any

statutory, legal, or affirmative duty to actually report potential violations.

In support of his argument that a plaintiff need not have any affirmative duty

to state a wrongful termination claim premised on retaliation, Plaintiff references

judicial decisions that found violations of public policy where employees were

terminated after applying for workers’ compensation or unemployment benefits.

(Doc. 8 at 19). But those cases are clearly inapposite. In Highhouse, the Superior

Court said that an employer violates public policy when it terminates an employee

for applying for unemployment benefits. Highhouse, 660 A.2d at 1378. The court

acknowledged that Pennsylvania courts “have consistently held that employers

violate the public policy of this Commonwealth by discharging employees for

exercising legal rights,” and the right of an employee to receive unemployment

benefits is one of those legal rights granted by the Commonwealth. Id. at 1377. In

Shick, the Pennsylvania Supreme Court found that permitting an employer to

terminate an employee for filing a workers’ compensation claim would frustrate

the entire statutory design: the workers’ compensation statute was intended to be

the exclusive means of obtaining compensation for injuries, and this exclusivity

was “the historical quid pro quo that employers received in return for being

subjected to a statutory, no-fault system of compensation for worker injuries.”

Shick, 716 A.2d at 1137 (quoting Poyser v. Newman & Co., Inc., 522 A.2d 548,

550 (Pa. 1987)). The court held that this “historical balance would be disrupted if

the employer could terminate an employee for filing a workers’ compensation

claim.” Id. In both cases, terminating employees for applying for benefits that the

legislature determined they had the legal right to obtain violated public policy

because the actions of the employers would undermine entire legislative schemes.

Upholding the legality of the terminations would have also frustrated clearly-

established legal rights that were statutorily granted to employees. Neither can be

said here, and neither of these two cases are relevant.

Rather, this case is much more akin to the cases cited supra involving

plaintiffs fired for reporting their employers’ misconduct to government

authorities: where a plaintiff has no statutory or otherwise affirmative duty to

report his or her employer, the narrow public policy exception to Pennsylvania’s

at-will employment doctrine cannot apply. Cf. Hunger v. Grand Cent. Sanitation,

670 A.2d 173, 176 (Pa. Super. Ct. 1996) (“We have recognized a public policy

exception only in extremely limited circumstances. If an employee is fired for

performing a function that he is required to perform by law, an action for wrongful

discharge on public policy grounds will be allowed.”) (emphasis in original).

Plaintiff was under no statutory duty to report Defendant’s conduct to the

Department of Health, and, therefore, this theory of retaliation cannot sustain his

wrongful termination claim.

Plaintiff’s second, alternative theory also fails. To reiterate, Plaintiff claims

he was fired because he stayed home from work while he awaited the results of his

COVID-19 test. He avers that because the Secretary of Health’s April 15 order

instructed that symptomatic employees “should notify their supervisor and stay

home,” (Doc. 4, Ex. B, at 20), and because violations of the Pennsylvania Disease

Prevention and Control Law could potentially yield a fine or jail sentence,

Defendant essentially terminated him for refusing to commit a crime. There are

several problems with this theory, however. First, it is far from certain that

Plaintiff would have suffered criminal penalties if he worked instead of self-

quarantining pending his COVID-19 test result. The April 15 order Plaintiff

references merely encouraged employees to stay home if they were symptomatic,

as indicated by the word “should.” (Id.). The order does not threaten any

enforcement against individual employees. Second, while one who violates the

Disease Prevention and Control Law faces certain criminal penalties, one who

ignored the Secretary of Health’s recommendation likely would not be in violation

of “any provisions of [the Disease Prevention and Control] act or any regulations.”

35 Pa. Stat. § 521.20(a). The generalized instruction to stay home from work is not

enshrined in any provision of the Disease Prevention and Control Law or in any

Department of Health regulation, and Plaintiff was not individually ordered to self-

isolate or quarantine pursuant to the Department of Health’s codified authority.2

2 Plaintiff also mischaracterizes 35 P.S. § 521.20(a). He claims that those who violate an

“emergency health order” face potential prosecution under that statute, but that is not true. The

law very plainly says that “[a]ny person who violates any of the provisions of this act or any

See 28 Pa. Code. § 27.60. Third, and perhaps most fatally, Plaintiff’s theory is

simply implausible. Plaintiff avers in his Amended Complaint that he notified his

supervisors that he had COVID-19 symptoms and that he had taken a COVID-19

test; following this conversation, those supervisors “directed” him “to self-

quarantine pending the results of [the] COVID-19 test.” (Doc. 4 at ¶ 24). In the

next paragraph, Plaintiff again clearly states that he stayed home from work “[a]s

directed by . . . Defendant[.]”. (Id. at ¶ 25). In other words, Plaintiff pleads that

he quarantined while waiting for test results at the direction of his supervisors. It

is implausible that Defendant instructed him to stay home from work while he

waited for his test results, and then fired him because he stayed home from work

while waiting for his test results. We cannot sustain a claim pled in this manner.

Because neither of Plaintiff’s theories of liability are plausibly alleged, we will

grant the Motion and dismiss this case.

IV. CONCLUSION

For the foregoing reasons, we shall grant Defendant’s Motion to Dismiss. A

separate order shall issue in accordance with this ruling.

regulation shall” face be subject to a fine or a maximum 30-day jail sentence. 35 P.S. §

521.20(a) (emphasis added). As we have discussed, the relevant section of the April 15 order

from the Secretary of Health was not an “order,” but merely a recommendation.