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Ming Wei v. Pennsylvania Department of Health

June 6, 2012


The opinion of the court was delivered by: Hon. John E. Jones III

Hon. J. Andrew Smyser



Before the Court is the Report and Recommendation ("R&R") of Magistrate Judge J. Andrew Smyser (Doc. 62) filed on March 14, 2012. Within the R&R, the Magistrate Judge analyzes the Defendants' Motion to Dismiss the Third Amended Complaint (Doc. 34) and recommends that the Motion be largely denied, but that the Motion be granted with respect to the following claims: Plaintiff's purported 42 U.S.C. § 1983 emotional distress claim, Plaintiff's Pennsylvania Human Relations Act ("PHRA") claims, and Plaintiff's § 1983 claims of discrimination based on the Defendants' discipline of him during his employment and termination. Magistrate Judge Smyser recommends that the matter be remanded to him for further pre-trial management.

Plaintiff Ming Wei ("Plaintiff" or "Wei") and the Defendants filed limited objections to the R&R. (Docs. 67-69). Accordingly, this matter is ripe for our review.


When objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).


Plaintiff first commenced this employment discrimination action on April 13, 2011 against the following Defendants: 1) the Commonwealth of Pennsylvania;

2) the Pennsylvania Department of Health ("PADOH"); 3) the Pennsylvania State Civil Service Commission; 4) Veronica Urdaneta; 5) Stephen Ostrolff; and 6) Tiffany Burnhauser. The current operative pleading in this matter is the third amended complaint.

Magistrate Judge Smyser sets forth the facts giving rise to this action in great detail at pages 2 through 8 of the R&R, thus we shall only summarize the salient facts herein. Plaintiff, who is of Chinese origin, worked at the PADOH from 2001 until his termination in 2007. In the context of his employment, Plaintiff performed various types of data analysis pertaining to HIV/AIDS cases in the Commonwealth. Plaintiff alleges that, during his employment, there was a double standard and stereotypical view of employees of Chinese origin that they should work harder than other employees who were not of Chinese origin. Plaintiff claims that when he complained about being overloaded with work, he was threatened he would lose his job, was disciplined, and that the number of staff members in his unit was decreased.

Plaintiff alleges that as a result of the excessive work and groundless harassment by the Defendants, he suffered from emotional distress and became physically ill. Plaintiff was advised by his medical providers to only work intermittently, however when Plaintiff requested annual leave to care for his health, his request was denied despite the fact that he had accumulated 100 hours of vacation time.

On July 23, 2007, Plaintiff filed a complaint with the Pennsylvania Human Relations Commission and the Equal Opportunity Commission. He was suspended on August 24, 2007 and subsequently fired from his employment on September 4, 2007. Plaintiff claims that during a hearing with the State Civil Service Commission pertaining to his termination, he was further discriminated against by not being appointed an interpreter. Plaintiff also claims that his health rendered him unable to sit for a hearing longer than two hours in length, but that despite asserting this as a basis for a continuance, he was denied that request.

Finally, Plaintiff claims that in May of 2009 he went to the Civil Service office to review his case file but was told to come back another day. Plaintiff claims that when he returned to the office another day, the police were called and he was stopped and arrested. Similarly, on February 7, 2011, Plaintiff alleges that when he went to the PADOH for a pubic document and job information, the PADOH called the ...

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