United States District Court, W.D. Pennsylvania
[Copyrighted Material Omitted]
For STEVEN B. SILVERMAN, Special Master: Steven B. Silverman, LEAD ATTORNEY, Babst, Calland, Clements and Zomnir, P.C., Pittsburgh, PA.
For DIANE DECECCO, Plaintiff: Charles A. Lamberton, LEAD ATTORNEY, Lamberton Law Firm, Pittsburgh, PA.
For UPMC, UPMC PRESBYTERIAN SHADYSIDE, Defendants: Andrew T. Quesnelle, LEAD ATTORNEY, John J. Myers, Allison Feldstein, Eckert Seamans Cherin & Mellott LLC, Pittsburgh, PA.
Joy Flowers Conti, Chief United States District Judge.
Pending before the court is a motion for partial summary judgment (ECF No. 94) filed by plaintiff Diane DeCecco (" plaintiff" or " DeCecco" ) and a motion for summary judgment (ECF No. 97) filed by DeCecco's former employer, defendants UPMC and UPMC Presbyterian Shadyside (collectively " defendants" or " UPMC" ).
Plaintiff initiated this action on March 2, 2012 by filing a complaint alleging UPMC discriminated against her in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the " ADEA" ). (ECF No. 1.) In the complaint, plaintiff requests
individual legal and equitable remedies under 29 U.S.C. § § 626(b) and (c)(1) for Defendants' age-based termination of her employment in violation of 29 U.S.C. § 623(a), and for Defendants' retaliation against Plaintiff in violation of 29 U.S.C. § 626(d) for having filed an EEOC Charge, obtained a Cause Finding and/or for communicating to UPMC in writing her opposition to age discrimination at UPMC[; and]
individual and systemwide declaratory and injunctive remedies under 29 U.S.C. § § 626(b) and (c)(1) for UPMC's systemic violations of 29 U.S.C. § 626(f) and § 623(d), and systemic violations of public
policy, as manifest on the face [sic] UPMC's standardized Release Agreements, and set forth in ¶ 4 of this Complaint.
(Id. ¶ ¶ 12, 13.) On April 12, 2012, defendants filed their answer asserting, among other defenses, that
Plaintiff's claim which is founded upon the Age Discrimination in Employment Act (" ADEA" ) is barred by reason of plaintiff's having entered into an Agreement whereby, for good and valuable consideration, she waived all claims against the defendants, including claims under the ADEA.
(ECF No. 10 at 4.)
On April 24, 2012, plaintiff filed a motion for partial judgment on the pleadings and a brief in support of the motion arguing " [n]umerous ADEA and public policy violations appear on the face of UPMC's standardized Release Agreement" and it, therefore, violates public policy and § 623(d) and § 626(f)(1), (f)(3) and (f)(4) of the ADEA. (ECF No. 12 ¶ 2.) Plaintiff in her motion for judgment on the pleadings requested the court
a. Declar[e] the challenged provisions of the UPMC Release Agreement unlawful under the ADEA and contrary to public policy,
b. Afford prospective injunctive relief by enjoining Defendants from further use of the Release Agreement, ordering Defendants to draft and henceforth use a legally compliant Release Agreement, ordering Defendants to expunge the unlawful Release Agreement from their computer systems, and ordering Defendants to create policies, procedures and safeguards to ensure continuing compliance with the law, and,
c. Order that restorative injunctive relief will be afforded for older workers who received an unlawful Release Agreement from UPMC in the past, subject to further proceedings and further order of court.
(Id. ¶ ¶ a-c.) On May 29, 2012, defendants filed a response in opposition to plaintiff's motion for judgment on the pleadings. (ECF No. 19.) On June 11, 2012, after receiving leave of court, plaintiff filed a reply to defendants' brief in opposition. (ECF No. 21.) At a hearing held on August 9, 2012, the court granted in part and denied in part plaintiff's motion for judgment on the pleadings. The court on the record at the hearing stated:
With respect to the part of the judgment on the pleadings that's seeking a declaration, in essence, that the release is invalid under the applicable -- under the standards set forth in Rupert and Bogatz, that it violates the Older Workers Benefit Protection Act and the ADEA, the Court will find that it does so violate the -- it is an invalid waiver, and we'll so order, thereby granting in part the motion for judgment on the pleadings.
The Court denies that aspect of the motion for judgment on the pleading seeking the specific prophylactic relief with respect to enjoining the Defendant from continuing to utilize these types of waivers and any other form of injunctive relief. And that will be for another day. Okay? Now -- so it's granted in part and denied in part. Thank you.
(H.T. 8/9/12 (ECF No. 40) at 31.) The court determined it would consider plaintiff's claims for systemwide relief separate from her claims for individual relief. Fact discovery proceeded with respect to the claims for individual relief, but not with respect to claims for systemwide relief.
On January 26, 2013, defendants filed a motion to dismiss with respect to plaintiff's claims for systemwide equitable intervention and a brief in support of the motion.
(ECF Nos. 63, 64.) On February 28, 2013, plaintiff filed a response in opposition to defendants' motion. (ECF No. 73.) On May 20, 2013, the court held a hearing on defendants' motion to dismiss. The court analyzed the motion to dismiss as a motion for judgment on the pleadings because defendants filed an answer to the complaint prior to filing the motion to dismiss. The court denied the motion to dismiss on the record holding plaintiff may be entitled to systemwide relief under the ADEA.
On July 1, 2013, plaintiff filed a partial motion for summary judgment with respect to her claim for facial retaliation under the ADEA, a brief in response to that motion, and a concise statement of material facts. (ECF Nos. 94, 95, 96.) On August 22, 2013, defendants filed a motion for summary judgment with respect to both claims asserted by plaintiff in the complaint, i.e., plaintiff's claims for age discrimination and facial retaliation under the ADEA, a brief in support of the motion, and a concise statement of material facts. (ECF No. 97, 98, 102.) On the same day, defendants filed their response in opposition to plaintiff's partial motion for summary judgment and a response to plaintiff's concise statement of material facts. (ECF Nos. 102, 103.) On October 3, 2013, plaintiff filed a response to defendants' concise statement of material facts and a reply to defendants' brief in opposition to her partial motion for summary judgment. (ECF Nos. 109, 113.) On October 4, 2013, plaintiff filed a brief in opposition to defendants' motion for summary judgment. (ECF No. 114.)
On October 17, 2013, the parties filed their joint concise statement of material facts with respect to plaintiff's partial motion for summary judgment. (ECF No. 116.) On November 4, 2013, defendants filed a reply to plaintiff's counter statement of facts and a reply brief with respect to their motion for summary judgment. (ECF Nos. 119, 121.) On November 6, 2013, plaintiff with leave of court filed a surreply brief in further opposition to defendants' motion for summary judgment. (ECF No. 124.) On November 8, 2013, the parties filed their joint concise statement of material facts with respect to defendants' motion for summary judgment. (ECF No. 125.)
The parties' motions for summary judgment having been fully briefed are now ripe for disposition by the court.
II. Factual Background
The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (" The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." ).
A. Plaintiff's claim that her employment was terminated based upon her age
UPMC Presbyterian Shadyside consists of UPMC Shadyside, UPMC Presbyterian, Western Psychiatric Institute and Clinic (" WPIC" ), and approximately thirty to forty hospital-based clinics. (Dep. of Brian Bachowski (" Bachowski" ) at 53, 56 (ECF No. 111-4 at 14, 17).) Hospital-based clinics are outpatient facilities typically separate from the main UPMC Presbyterian, UPMC Shadyside, and WPIC buildings that do not have patient beds, but share UPMC Presbyterian Shadyside's Medicare certificate number, and are considered part of UPMC
Presbyterian Shadyside for Medicare certification purposes.
(Dep. of Bachowski at 53-56 (ECF No. 111-4 at 14-17).)
Within WPIC, there are inpatient units and ambulatory programs. (Id. ¶ 13.) Inpatient units admit patients, and ambulatory programs are akin to outpatient services. (Id.) The Diagnostic Evaluation Center (the " DEC" ) is one of WPIC's ambulatory programs; it is licensed as an outpatient facility and functions as WPIC's emergency room. (D.J.C.S.F. (ECF No. 125) ¶ ¶ 14, 15); Pl.'s Dep. at 21, 64 (ECF No. 101-1 at 6; Dep. of Eleanor Medved (" Medved" ) at 15, 16 (ECF No. 111-5 at 1).) The clinical administrator is the responsible manager for the DEC. (Dep. of Medved at 68 (ECF No. 111-5 at 5.) In other words, the clinical administrator is the senior leadership person who reports directly to the vice president of inpatient and emergency services. (Id.)
Dr. Cynthia Roth (" Roth" ) has been the president of WPIC since August 2004. (Defendants' Joint Concise Statement of Facts (" D.J.C.S.F." ) (ECF No. 125) ¶ 12).)
In 2004, Eleanor Medved (" Medved" ) was the risk manager and director of quality for WPIC. (Dep. of Medved at 100 (ECF No. 100-2 at 7.) Between 2004 and 2005, Medved became the staff associate and vice president of ambulatory services for WPIC. (Id.) In 2008, the title " vice president of ambulatory and crisis operations" was added to Medved's job description. (Id.)
Kim Owens (" Owens" ) was the vice president of inpatient and emergency services for WPIC at all times relevant to this lawsuit. (D.J.C.S.F. (ECF No. 125) ¶ 18.) Owens was responsible for running the DEC. (D.J.C.S.F. (ECF No. 125) ¶ 19.)
Since 2005, Katie Devine (" Devine" ) has been a corporate-level vice president of human resources for UPMC. (D.J.C.S.F. (ECF No. 125) ¶ 148.) Devine is responsible for the human resources function at WPIC and across UPMC's International Commercial Services Division, its community provider services network, its home care and senior communities, and its cancer centers. (Id. ¶ 149.) Devine is a member of WPIC's executive management team. (Id. ¶ 150.) Devine was responsible for enforcing UPMC's equal employment opportunity rules and policies and for being a " check and balance" against managerial decisions that might violate those rules and policies. (Id. ¶ 151.)
b. Plaintiff's employment with WPIC
In or around August 1969, plaintiff began working for WPIC at the age of nineteen. (D.J.C.S.F. (ECF No. 125) ¶ ¶ 1, 124.) In 1971, plaintiff began working in the medical records department at WPIC. (D.J.C.S.F. (ECF No. 125) ¶ 2.) Plaintiff held various positions in the medical records department, including supervisor of the file area, hearing coordination manager, and associate director. (Id.) In 1993, plaintiff became the director of medical records at WPIC. (Id. ¶ 3.) In the late 1990s or early 2000s, the medical records department was renamed the health information management (" HIM" ) department. (Id. ¶ 4.) Plaintiff was responsible for the HIM department. (Pl.'s Dep. at 19 (ECF No. 111-3 at 2).) According to plaintiff's job description, as director of the HIM department, she was expected to " organize and lead a creative multifunctional, customer-focused health information management service and central transportation service." (Pl.'s Dep. at 75 (ECF No. 101-1 at 19); D.J.C.S.F. (ECF No. 125) ¶ 8.) Plaintiff's performance evaluations identified additional responsibilities associated with her position as director of the HIM department, including, among others, " [m]onitor[ing] WPIC performance against established Corporate benchmarks and regulatory standards with regard to record
completion and coding," " ensuring compliance with licensing and accrediting agency regulations," and " [m]onitoring overall performance of the WPIC HIM Department." ((ECF No. 101-2 at 6; D.J.C.S.F. (ECF No. 125) ¶ 10; Pl.'s Dep. at 97 (ECF No. 101-1 at 25).) In or around 2004 and 2005, Medved became plaintiff's direct supervisor. (Dep. of Medved at 129 (ECF No. 100-2 at 8.) The HIM department was under the direction of Medved as vice president of ambulatory and crisis operations for WPIC. (Dep. of Roth at 69 (ECF No. 111-7 at 11).) Owens was not plaintiff's supervisor. (D.J.C.S.F. (ECF No. 125) ¶ 18.)
In the forty-one years plaintiff worked for WPIC, she was never disciplined for poor performance or placed on a performance improvement plan. (D.J.C.S.F. (ECF No. 125) ¶ 125.) Plaintiff had a distinguished career with and greatly contributed to WPIC. (Id. ¶ 126.) Roth supervised plaintiff for several years and gave plaintiff good performance evaluations. (Id. ¶ 127.) Plaintiff " knew her job responsibilities very well, knew the organization very well, was extremely dedicated, competent[, and] a pleasure to work with." (Id. (Dep. of Roth at 174-75 (ECF No. 111-7 at 37).) Each year of plaintiff's forty-one years of employment with UPMC, plaintiff was rated between " consistently meets expectations" and " consistently exceeds expectations." (ECF No. 111-11 at 2.) In 2008, plaintiff--at the age of 58--received UPMC's Award for Commitment to Excellence and Service (" ACES" ), which is given to one percent of UPMC's workforce in recognition of highly distinguished performance. (D.J.C.S.F. (ECF No. 125) ¶ 133.)
c. The HIM department
The HIM department manages all aspects of patient records, which includes overseeing, maintaining, storing, and retrieving the records, managing the various repositories and sources of documentation, and processing requests for information from those records for health care providers, insurance companies, and other persons who request information from the records. (Pl.'s Dep. at 18 (ECF No. 101-1 at 5); Dep. of Cynthia Roth (" Roth" ) at 69 (ECF No. 100-1 at 6).) The HIM department's responsibility to review inpatient records was different than its responsibility to review ambulatory records. (Dep. of Medved at 222 (ECF No. 111-5 at 19).) Medved testified with respect to the difference in responsibility as follows:
The analysis for ambulatory comes in different ways, as we talked about earlier. When we have surveys for programs, that's a spot check on how we're doing with things and we discover and deal with those kinds of situations.
There's a lot of reports that are generated that tell us whether we have problems with signatures, missing documents, and ill-timed documents, thing of that nature, and inpatient is an individual record going through all of the papers or whatever. I don't know if it's all of the papers or key papers for each record.
(Dep. of Medved at 222-23 (ECF No. 111-5 at 19-20.) Plaintiff described the difference in procedure followed with respect to review of medical records for inpatient and outpatient or ambulatory patients as follows:
We had two record analysts who reviewed each inpatient discharge record, and that process included flagging any missing documents, missing signatures, which were entered into a record management system, computerized system, that would then generate a notice to the person responsible for the missing information.
For our patient [sic] or ambulatory records, you know, there were probably 40,000 to 45,000 of those services provided every month, so given budget restrictions there were not enough staff in the department to be able to look at every single document in an ambulatory record; however, probably since around the mid to late '90s a lot of the ambulatory information was entered into an electronic medical record, so we were able to monitor missing progress notes, signatures, physicians' cosignatures, missing treatment plans from that electronic system.
The other parts of the record, paper documents, it was required that they be sent to the department on a timely basis, and then we would file it into the record.
The monitoring of the record was also managed through a process that had been in place for a number of years at Western Psych where each program reviewed a sample of their records and submitted the results of those review to, you know--
I don't know if they went to their supervisors, but ultimately they were sent to the director of ambulatory services.
That person was to report any deficiencies to me so that my department would be able to follow up and monitor the completeness of those records.
(Pl.'s Dep. at 24-26 (ECF No. 101-1 at 6-7.)
Traci Cain (" Cain" ) was the director of ambulatory services. (Pl.'s Dep. at 26 (ECF No. 101-1 at 7.) Plaintiff's involvement in the review of the ambulatory records depended upon Cain forwarding information to plaintiff about the ambulatory records. (Pl.'s Dep. at 26-27 (ECF No. 101-1 at 7.) Cain was supposed to inform plaintiff about deficiencies in a program's medical records or if there were no deficiencies in a program's medical records. (Pl.'s Dep. at 33 (ECF No. 101-1 at 7.) Plaintiff did not recall receiving a lot of feedback from Cain about the ambulatory programs' medical records. (Id.) At one point in time, Cain prepared reports about the sampling she received from the ambulatory programs, and plaintiff reviewed the reports. (Pl.'s Dep. at 33-34 (ECF No. 101-1 at 7.) Plaintiff was not concerned about the lack of feedback she received from Cain with respect to the ambulatory programs' medical records. (Pl.'s Dep. at 34 (ECF No. 101-1 at 7.) Plaintiff explained:
I knew [Cain] to be a reliable person, so I interpreted that as there weren't any problems, and the results that I saw that she was reporting to the Joint Commission reflected that as well.
2. The 2010 investigations of WPIC and UPMC Presbyterian Shadyside
The Joint Commission is an accrediting organization that provides guidelines and standards on human resources policies and practices and voluntary accreditation for hospitals. (Dep. of Devine at 61 (ECF No. 111-8 at 12; D.J.C.S.F. (ECF No. 125) ¶ 25.) The Joint Commission performs accreditation surveys of its accredited hospitals every three years. (Id.) UPMC Presbyterian Shadyside, which includes WPIC, is a " deemed" provider because it is accredited by the Joint Commission. (D.J.C.S.F. (ECF No. 125) ¶ 22.) If a hospital is a " deemed" provider, it is " deemed" to be in compliance with the federal government's Medicare Conditions of Participation, which are standards that must be complied with in order to participate in Medicare. (Id.; Pl.'s Dep. at 177 (ECF No. 111-3 at 5).)
WPIC was subject to annual reviews by two agencies of the Commonwealth of Pennsylvania; inpatient programs were reviewed by the Pennsylvania Department of Health (the " DOH" ), and ambulatory programs were reviewed by the Pennsylvania Department of Public Welfare (the " DPW" ). (D.J.C.S.F. (ECF No. 125) ¶ 26.) Annual surveys by the DOH and the DPW were announced in advance to WPIC. (Id. ¶ 27.)
In addition to the annual reviews by the DOH and the DPW, the DOH performed surveys when complaints were received by telephone call or letter to the DOH. (Id. ¶ ¶ 28-29.) The complaint surveys were not prescheduled, and the DOH did not provide advance notice with respect to when it would conduct a complaint survey. (Id. ¶ 28.) The DOH was required to notify the Center for Medicare and Medicaid Services (" CMS" ) if the complaint involved a potential violation of the Emergency Medical Treatment and Active Labor Act (" EMTALA" ), 42 U.S.C. § 1395dd. (Id. ¶ 30.) CMS would tell the DOH whether it was authorized to conduct a survey of the provider for violations of federal standards and regulations. (Id. ¶ 31.) Once the DOH completes a survey of a hospital, it makes a recommendation to the CMS with respect to whether the provider is in compliance with the regulations. (Id. ¶ 32.) The CMS makes the ultimate decision with respect to whether the provider was in compliance. (Id.)
On February 17, 18, and 23, 2010, the DOH conducted a complaint investigation at WPIC relating to two separate complaints it received about long lengths of stay in the DEC. (ECF No. 111-6 at 113; D.J.C.S.F. (ECF No. 125) ¶ 46.) The first complaint was investigated and determined to be unfounded. (Id.) The investigation of the second complaint involved detailed review of DEC medical records and assessment and documentation processes. (Id.)
Brian Bachowski (" Bachowski" ), a surveyor with the DOH, performed the investigation of the second complaint for the DOH. (Bachowski Dep. at 10, 64-65 (ECF No. 111-4 at 2, 25-26.) Bachowski began working for the DOH as a surveyor in August 2006. (Bachowski Dep. at 10 (ECF No. 111-4 at 2.) Bachowski's responsibilities as a surveyor for the DOH included inspecting hospitals, e.g., making sure the hospitals were in compliance with federal and state laws and regulations, conducting complaint investigations, and conducting EMTALA investigations for the CMS. (Bachowski Dep. at 11 (ECF No. 111-4 at 3.) In 2009, UPMC Presbyterian-Shadyside was assigned to Bachowski, meaning Bachowski served as team leader during investigations of complaints made with respect to UPMC Presbyterian-Shadyside. (Bachowski Dep. at 29-30, 32 (ECF No. 100-3 at 10, 11; ECF No. 111-4 at 4).)
When Bachowski scheduled the survey of WPIC in February 2010, he was required to and did notify CMS about the survey because WPIC was a " deemed" provider. (D.J.C.S.F. (ECF No. 125) ¶ 39.) CMS authorized Bachowski and his team to conduct the investigation of WPIC and to evaluate WPIC's compliance with federal regulations and standards. (Id. ¶ 40.)
The first two days of the investigation took place on February 17 and 18, 2010. (Id. ¶ 41.) While at the DEC, Bachowski, along with two other surveyors from the DOH, Judith Rich (" Rich" ) and Sandra Edkins (" Edkins" ), questioned staff, including, among others, Owens, Jenn Schneeman (" Schneeman" ), the clinical director of the DEC, and Jeremy Musher, medical director of the DEC, and looked at the flow of patients, medical records of the
patient in issue in the second complaint, and medical records of current patients in the DEC. (Bachowski Dep. at 65-68 (ECF No. 111-4 at 26-29); Owens Dep. at 118 (ECF No. 111-6 at 38).) Bachowski learned the patient in issue in the second complaint " was assessed for her psychiatric issues, psychological issues, but there was a lack of evidence and documentation of her medical issues." (Bachowski Dep. at 65-66 (ECF No. 111-4 at 26-27.) Bachowski testified as follows:
We didn't see any documentation of vital signs, we didn't see documentation that the patient state or -- whatever the complaint was, that the patient obviously had not been eating for a period of time, we didn't see any evidence of lab work, we didn't see any evidence of a physical exam of the patient from a medical standpoint.
The medical screening exam was suspect....We weren't sure if there was a true medical screening exam done for the patient.
(Bachowski Dep. at 66(ECF No. 111-4 at 27.)
Bachowski had two main concerns as he conducted the survey on WPIC. (Bachowski Dep. at 73 (ECF No. 111-4 at 34.) Bachowski was concerned about the medical screening exam for the patient in issue in the second complaint. (Id.) Time was not recorded on the documentation Bachowski examined with respect to the patient's medical records so he could not tell when the medical exam of the patient was performed. (Id.) Bachowski's second concern was that " some flow sheets were being filled out for patients that would come through the DEC that weren't becoming a part of the medical record that had information on it that would be part of the medical screening exam." (Id.)
February 23, 2010, was the third day of Bachowski's investigation at WPIC. (D.J.C.S.F. (ECF No. 125) ¶ 46.) On February 23, 2010, Bachowski interviewed " Employee 2," later identified as Owens. (Id. ¶ 47.) When Bachowski asked Owens who bore overall responsibility at WPIC for the completion of inpatient and outpatient medical records, Owens responded: " [DeCecco] is the Western Psych employee that is responsible for the health information." (D.J.C.S.F. (ECF No. 125) ¶ 49.)
On February 23, 2010, at 2:40 p.m., Bachowski interviewed plaintiff in connection with his investigation of WPIC. (Id. ¶ 51.) Two other employees from the DOH were present--but did not participate--during plaintiff's interview. (Id. ¶ 52.) Bachowski asked plaintiff how she knew whether a DEC medical record was complete. (Id. ¶ 54.) In a Form 2567 report prepared by Bachowski with respect to his investigation of WPIC, he wrote that employee 3, later identified as plaintiff, responded to his question as follows:
" We don't do any record analysis for ambulatory programs ... The DEC is an ambulatory program ... We only do it [record analysis] for inpatient records ... We just accept what they [DEC staff] send to us ... The record review of the DEC would be the responsibility of the DEC ... We are the custodian of the documents, we store everything. We aren't responsible for the DEC."
(Bachowski's Report dated 2/23/2010 at 6 (ECF No. 101-2 at 48).) Plaintiff admits she made the statements Bachowski included in his report, but argues Bachowski did not include the entirety of her statements, and " the gaps in what [she] said distorts the meaning." (Pl.'s Dep. at 204 (ECF No. 111-3 at 15.)
Plaintiff described her interview with Bachowski as follows:
I remember when I walked in he asked me to take a seat. I didn't know why. He seemed agitated, and I didn't know what had occurred prior to me arriving. Jenn Schneeman from the DEC was there.
[Schneeman] seemed to be leafing through some type of a binder, I guess, looking for something.
Brian asked me about a document and if I knew about it, and I believe he told me it wasn't in the record and he asked me if I knew where it was.
I don't remember if I even understood what document he was talking about at the time.
I [was] asked some type of a question about who was responsible for DEC records and I really didn't understand what he meant by that. He wanted to know if--
He was asking how I knew if a DEC record was complete. I told him that my department performed a detailed analysis of inpatient discharge records but that the ambulatory records which included the DEC were reviewed by the individual programs. He --
I don't remember what he said after that. He seemed more agitated and asked if I was --
I don't remember how he phrased it. He asked something about --more about who was responsible for DEC records and how --
So I just continued to explain the procedure. I told him that the ambulatory programs regularly reviewed records and turned the results of those records in, and that's how we monitored the completion of ambulatory records through those reviews.
Jenn Schneeman was there and confirmed that was the process. He wanted to know --
I think he must have asked me something about why this document that he was looking for wasn't in the record, and I told him that if the DEC had sent it to us then it would have been filed so it could only mean that it had never been received.
(Pl.'s Dep. at 186-88 (ECF No. 111-3 at 6-8).) According to plaintiff, Bachowski appeared angry and as if he was not listening to plaintiff during the interview. (Pl.'s Dep. at 192 (ECF No. 111-3 at 12).) Plaintiff explained:
[Bachowski] didn't ask me any questions about the process; he had his head pretty much buried in a chart. He was looking at a chart the entire time almost. He didn't make much eye contact with me.
He didn't ask me any questions. He didn't tell me it wasn't satisfactory. He just kept repeating the same question about who is responsible for the completion of DEC records, and he didn't ask me any questions about the procedure I had explained to him.
His facial expressions looked angry. I believe at one point he even, you know, pounded his hand on the table, you know.
(Pl.'s Dep. at 192-94 (ECF No. 111-3 at 12-14).)
Plaintiff testified that Owens arrived at the interview at some point after plaintiff explained the record review process to Bachowski. (Pl.'s Dep. at 188 (ECF No. 111-3 at 8).) Once Owen arrived, Bachowski repeated his questions about the record review process to plaintiff. (Pl.'s Dep. at 188-89 (ECF No. 111-3 at 8-9).) Plaintiff
again tried to explain to Bachowski the record review process that was put into place by Medved, but " [Bachowski] didn't appear to want to hear about that." (Id.) Plaintiff does not remember telling Bachowski that she was not responsible for the DEC. (Id.) Plaintiff testified that the statement Bachowski included on the Form 2756 with respect to her not being responsible for the DEC was incomplete. (Pl.'s Dep. at 189-90 (ECF No. 111-3 at 9-10).) According to plaintiff, Owens asked Bachowski what plaintiff and he were talking about. (Pl.'s Dep. at 190 (ECF No. 111-3 at 10).) Bachowski " repeated a few things" to Owens, and then asked her who was administratively responsible for medical records. (Id.) Owens told Bachowski that plaintiff was administratively responsible for medical records. (Id.) Plaintiff agreed with Owen's statement subject to the process she described to Bachowski that was set in place by Medved. (Pl.'s Dep. at 190-91, 205 (ECF No. 111-3 at 10-11, 16).)
Following Bachowski's survey of WPIC, including his interview with plaintiff, his team members and he prepared a " Form 2567" report containing information which formed the basis of Bachowski's recommendation that WPIC had condition-level deficiencies violating the requirements of 42 C.F.R. § 489.24 and related requirements of 42 C.F.R. § 489.20. (Dep. of Bachowski at 75-78 (ECF No. 111-4 at 36-39); (ECF No. 101-2).) A Form 2567 is a survey report outlining the findings of an investigation. (D.J.C.S.F. (ECF No. ...