Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.
Law360 (August 24, 2020, 5:20 PM EDT) -- A former worker at a Pittsburgh-area nursing home claimed he was fired for voicing concerns about his facility's handling of the COVID-19 pandemic to an outside consultant, according to a lawsuit he filed in Pennsylvania state court Monday.
Ron Berlingo said the Monroeville Rehabilitation and Wellness Center fired him late July for reaching out to a state-assigned infection control specialist about discrepancies he saw in the numbers his facility was reporting for infected staff and patients, in violation of the Pennsylvania Whistleblower Law.
He said he was repeatedly chided by Tom Lowden, the regional administrative consultant for the company, whenever he spoke up in phone conferences with the specialist, Joan Hebden, or spoke to representatives from the Pennsylvania Department of Health or the Allegheny County Health Department.
"Mr. Berlingo made a direct, good-faith reporting of wrongdoing or waste to an appropriate official when he spoke separately to Ms. Hebden regarding incorrect information being provided by Mr. Lowden and the head nurse," the complaint said. "Mr. Berlingo suffered immediate retaliation as a result of making this report when he was terminated the next day."
Berlingo made two claims against Monroeville Operations LLC, the company running Monroeville Rehab and Wellness: retaliation under the Whistleblower Law, and wrongful termination in violation of public policy.
According to the lawsuit, Berlingo had transferred to Monroeville from another facility the company owned in September 2019, and he had a clean disciplinary record. He reported the nursing home's first case of COVID-19 to the state health department in late June or early July, which led the state to assign him to help the facility develop its protocols for containing and controlling the virus.
Lowden, who was taking on a more day-to-day role running the center because of the pandemic, participated in phone conferences at least once a week with Hebden, Berlingo, the facility's head nurse, its attorneys and other officials, the suit said. But in some of those calls, Berlingo said Lowden and other staff made false claims about working with an epidemiologist, or they downplayed issues such as the number of nursing home employees who were out sick.
"Mr. Lowden reported to Ms. Hebden that the situation had stabilized and a number of those employees were returning to work, when this was not the case," the complaint said. "Mr. Berlingo actually had received a phone call from a temporary staffing agency that had been recommended by the Allegheny County Department of Health in order to assist with said staffing issues. Mr. Lowden reprimanded Mr. Berlingo for speaking to this individual, informing him that he should not speak to anyone from the state without the attorneys present."
On another occasion, Berlingo had called the state health department to request a short extension on a deadline for a report with details about infected residents. The complaint said Lowden again chastised Berlingo for speaking to a state official without an attorney and told him that he shouldn't speak up during the phone calls with Hebden, either.
When Monroeville Rehab's head nurse allegedly undercounted the number of COVID-positive during a July 28 call with Hebden, Berlingo sent her an email afterward to detail the discrepancies he saw, the suit said. Hebden emailed Lowden about Berlingo's concerns, and Lowden again rapped Berlingo for speaking outside the presence of attorneys, Berlingo said. The next day, Berlingo said he was fired when he showed up to work.
In addition to his claim that he was fired in retaliation for blowing the whistle on Monroeville Rehab's alleged misrepresentations, Berlingo said his firing went against the notion of timely and accurate reporting of COVID-19 cases amid nursing facilities serving vulnerable populations.
"There is a clear public policy in favor of ensuring that employees at such facilities are not punished for ensuring that accurate information is provided to health officials," the complaint said. "This termination is a violation of the aforementioned public policy and thus constitutes a wrongful termination."
Berlingo asked the court to award him for lost pay and benefits, punitive damages against the company, and attorney fees.
"Mr. Berlingo was disappointed in the entire situation," said his attorney, Adam Gorzelsky. "He was always trying to do the right thing by his residents."
A Monroeville Rehab representative declined to comment on the lawsuit, but said the facility supported its employees.
"We are proud of those heroes who selflessly cared for the great generation we service throughout a pandemic," the representative said in a statement.
Berlingo is represented by Adam R. Gorzelsky of Gorzelsky Law.
Counsel information for Monroeville Rehab was not immediately available.
The case is Berlingo v. Monroeville Operations LLC, case number GD-20-009050, in the Court of Common Pleas of Allegheny County, Pennsylvania.
--Editing by Adam LoBelia.
Update: This article has been updated with a response from Monroeville Rehabilitation and Wellness.
For a reprint of this article, please contact firstname.lastname@example.org.