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July 1, 2004.


The opinion of the court was delivered by: JOHN PADOVA, District Judge


Plaintiff Joseph Duffy has brought this action under Pennsylvania statutory and common law alleging that the termination of his employment by Defendant, Kindred Hospitals East, L.L.C. ("Kindred"), constituted wrongful discharge. Kindred has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 ("Rule 56"). The matter has been fully briefed, and oral argument was held on June 22, 2004. For the reasons that follow, the Court grants Kindred's Motion for Summary Judgment in its entirety.


  Plaintiff was employed by Kindred as a respiratory therapist and director of respiratory care and radiology services from April 9, 2001 to December 4, 2002. (Duffy Aff. ¶ 1.) Throughout Plaintiff's employment, Kindred used an Hours Per Patient Days ("HPPD") staffing model for the purpose of determining staffing levels for respiratory and nursing personnel. (Id. ¶ 2.) This model based staffing solely on the number of patients per day multiplied by a budgeted number of hours allowed per patient day. (Id. ¶ 4.) Plaintiff claims that Kindred's HPPD staffing model for respiratory therapists and nurses violated Pennsylvania regulations in that it did not consider the needs of the patients. (Id. ¶ 23.) Plaintiff informed Kindred on numerous occasions throughout his employment that its staffing model was inconsistent with codes and regulations. (Id. ¶ 14.) Plaintiff attempted to consider the needs of the patients in scheduling his staff, and in response he received chastisement for overstaffing and reminders that the budget controlled staffing. (Id. ¶ 6.)

  At a meeting of all department and section heads on or about April 3, 2002, which was held to prepare for an upcoming evaluation by the Joint Commission on the Accreditation of Health Care Organizations ("JCAHO"), the person in charge of Kindred's Corporate JCAHO survey stated that, if asked by a JCAHO surveyor, department heads should state that staffing at Kindred was based on patient needs. (Id. ¶ 16.)

  On December 4, 2002, at a meeting that Plaintiff requested for the purpose of discussing the plan for reducing staffing levels that he was required to produce, Plaintiff was informed that there was a serious philosophical difference of opinion on staffing and that Kindred was going to sever its relationship with Plaintiff at that time. (Id. ¶ 21-22.)

  Plaintiff claims that he was wrongfully discharged from his employment without advance notice, and that the discharge violated the public policy of the Commonwealth of Pennsylvania and the Pennsylvania Whistleblower Law ("Whistleblower Law"). Plaintiff alleges that he was discharged because of his refusal to willingly participate or condone Kindred's utilization of an hours per patient day staffing model. Plaintiff seeks monetary damages in excess of $100,000.


  The court should grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed R. Civ. P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.

  A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed R. Civ. P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255. "[I]f the opponent [of summary judgment] has exceeded the `mere scintilla' [of evidence] threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent." Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).


  A. Whistleblower Law Claim

  In his response to Kindred's Motion for Summary Judgment, Plaintiff concedes that the claims under the Whistleblower Law cannot be maintained because there is insufficient evidence to establish that Kindred is a public body under the terms of the Whistleblower Law. (Pl's Opp. Summ. J. Mem. at 1). The Court therefore grants Kindred's ...

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