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Lowe v. Pocono Medical Center

United States District Court, M.D. Pennsylvania

April 10, 2014

CORA LEE LOWE, Plaintiff,
POCONO MEDICAL CENTER, et al., Defendants.


THOMAS M. BLEWITT, Magistrate Judge.


On April 24, 2012, Plaintiff, Cora Lee Lowe, a former employee of Defendant Pocono Medical Center ("PMC"), filed, through counsel, a Complaint alleging claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and the Pennsylvania Human Resources Act ("PHRA"), 43 Pa.C.S.A. §951, et seq. (Doc. 1). Plaintiff also named as Defendants Karen Mongi and Diedre Ueberroth, both employees of PMC. Plaintiff paid the filing fee. Defendants were served with Plaintiff's Complaint and counsel entered his appearance for all Defendants.

On April 26, 2012, Defendants Mongi and Ueberroth filed a Motion to Dismiss Plaintiff's original Complaint. (Doc. 4). Plaintiff then filed an Amended Complaint on April 30, 2012, against all three Defendants. (Doc. 6). Plaintiff again alleged violations of the ADEA and PHRA. Defendants were served with Plaintiff's Amended Complaint. The Court deemed the Motion to Dismiss Plaintiff's original Complaint filed by Defendants Mongi and Ueberroth as moot.

On May 14, 2012, Defendants Mongi and Ueberroth filed a Motion to Dismiss Plaintiff's Amended Complaint under Fed.R.Civ.P. 12(b)(6). (Doc. 9). Defendants' Motion was briefed. On July 24, 2012, the Court issued a Memorandum and Order, and denied the Motion. (Doc. 12). The Court found that Plaintiff had stated a claim against the two individual Defendants under §955(e) of the PHRA since "[a]s Plaintiff's supervisors, Defendants Mongi and Ueberroth can be found to share the intent and purpose of Defendant PMC and therefore can be found liable under §955(e) for their alleged direct acts of discrimination and the ultimate decision to terminate Plaintiff for an unlawful reason." The Court concluded that Plaintiff had sufficiently alleged in her amended pleading that "Defendants Mongi and Ueberroth, through their false allegations and by terminating Plaintiff, share the intent and purpose of Defendant PMC." ( Id., p. 8).

Defendants jointly filed an Answer to Plaintiff's Amended Complaint, with Affirmative Defenses, on September 28, 2012, with attached Exhibits, A-C. (Docs. 15, 15-1, 15-2 & 15-3).

Subsequently, the parties consented to proceed before a Magistrate Judge for all matters, including trial, pursuant to 28 U.S.C. §636(c), and this case was re-assigned to the undersigned. (Doc. 18).

The Court issued a Scheduling Order setting, in part, deadlines for discovery and dispositive motions, and the deadlines were then extended three times. (Docs. 21, 27 & 29). The final discovery deadline was December 2, 2013. Neither Plaintiff nor Defendants timely filed any Motion to Compel during the discovery period.

On January 2, 2014, Defendants timely filed a Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. (Doc. 30). Defendants attached their Statement of Material Facts ("SMF") to their Motion along with Exhibits. (Docs. 30-1 through 30-7). On January 15, 2014, Defendants filed their brief in support of their Motion for Summary Judgment with attached Exhibits. (Docs. 31, 31-1, 31-2 & 31-3). On February 4, 2014, Plaintiff filed her opposition brief to Defendants' Summary Judgment Motion with attached Exhibits (Docs. 32, 32-1, 32-2 & 32-3) and, her Answer to Defendants' SMF (Doc. 33). On February 28, 2014, Defendants filed their reply brief with attached Exhibits. (Docs. 36, 36-1 through 36-4). Defendants' Summary Judgment Motion is now ripe for review.

On March 3, 2014, Plaintiff filed a Motion in Limine seeking to preclude Defendants from relying upon documents, both with respect to their Summary Judgment Motion and at trial, which she alleges Defendants wilfully withheld from her during discovery, namely, coding completion screens obtained from the Siemans Medical Record Access System. (Doc. 38). In particular, Plaintiff requests the Court to strike Defendants' reply brief and attached Exhibits (Docs. 36, 36-1 through 36-4) insofar as they relate to the stated documents. On March 17, 2014, Defendants filed their opposition brief to Plaintiff's Motion in Limine with attached Exhibits. (Docs. 40, 40-1 & 40-2). Plaintiff did not file a reply brief in support of her Motion in Limine and the time to do so has expired.

The Court agrees entirely with Defendants that there is no merit to Plaintiff's Motion in Limine. Initially, as Defendants point out, Plaintiff did not seek to confer with them in an effort to obtain the stated documents sans court intervention as required by Rule 37(1). (Doc. 40). Nor did Plaintiff file a Motion to Compel during the discovery period under Rule 37(3), despite the fact that the Court extended this period three separate times. Also, the Court agrees with Defendants that since Plaintiff failed to follow the procedures outlined in Rule 37 and discovery is closed, the Court should consider her Motion in Limine as an untimely Motion to Compel. See Molina v. Pocono Medical Center, Civil No. 11-2276, M.D. Pa. (12-5-13 Order, J. Mannion). (Doc. 40-1).

The Court also finds no merit to Plaintiff's Motion in Limine. In their August 2013 depositions, Defendants Mongi and Ueberroth identified "3M Reports" and coding "completion screens" relating to the audit process which was conducted by Defendants and which Defendants contend showed large blocks of unproductive time for which Plaintiff was paid and which lead to Plaintiff's termination. Defendants state that the coding "completion screens merely provide the backup information for the audit" and, thus substantiate the deposition testimonies of Defendants Mongi and Ueberroth. Defendants also state that at no time during the depositions of Mongi and Ueberroth did Plaintiff request that the "3M Reports" or the "completion screens" be printed and produced to her. Defendants further state that Plaintiff never requested the screens during the following months. Plaintiff contends that she requested the screens in her Interrogatories, which were served on Defendants prior to the depositions of Mongi and Ueberroth. The Court agrees with Defendants that since Plaintiff's Interrogatories to them pre-dated the identification of the coding "completion screens" by Mongi and Ueberroth in their depositions, Plaintiff failed to timely request the screens during the discovery process. Even though Plaintiff failed to make timely discovery requests for the "3M Reports" or the "completion screens" relating to the audit process which Defendants Mongi and Ueberroth identified in their depositions, and even though Plaintiff did not try and resolve the matter concerning the "completion screens" with Defendants and then file a Motion to Compel, Defendants subsequently produced the 162 "completion screens" to Plaintiff on February 27, 2014. ( See Doc. 40, Ex. B & Doc. 40-2). Thus, the Court finds that Plaintiff will not suffer any prejudice since Defendants have now provided Plaintiff with the documents at issue, namely 162 completion screens. (Doc. 40, p. 2 & Doc. 40-2). As such, the Court will deny Plaintiff's Motion in Limine. (Doc. 38).

Further, the Court agrees with Defendants that the coding "completion screens" and Audit Trail Reports fall under a hearsay exception, i.e., the business record exception, Fed.R.Evid. 803(6), since the deposition testimonies of Defendants Mongi and Uebberroth as well as Uebberroth's February 27, 2014, Affidavit ( see Doc. 36-4) establish that the entries on the screens and reports were made contemporaneously as part of PMC's routine business practice, "namely the routine audits of all [C]oders [employed by PMC]." (Doc. 36, p. 3). See Ford Motor Credit Co. LLC v. Maxwell, 2013 WL 4782597, *11 (M.D. Pa. Sept. 6, 2013)(citations omitted). Defendants Mongi and Uebberroth were qualified witnesses to provide the foundation testimony as to the authenticity and accuracy of the reports and the coding "completion screens" and, they both clearly had the required familiarity with the reports and the coding screens and program. (Doc. 32-2, pp. 20-32 & Doc. 31-3, pp. 10-13, pp. 15-31).

In her Affidavit, Defendant Uebberroth also clearly has shown that the reports and the coding "completion screens" were made contemporaneously with the act these reports and screens purport to record by someone with knowledge of the subject matter, that they were made in the regular course of PMC's business with respect to auditing PMC's Coders, and that these records were regularly kept by PMC. (Doc. 36-4).

Thus, the Court will consider the "3M Reports" or the coding "completion screens" as well as the Audit Trail Reports relating to the audit process involving Plaintiff which Defendants Mongi and Ueberroth identified in their depositions and in Ueberroth's Affidavit with respect to Defendants' pending Summary Judgment Motion. Portions of the coding "completion screens" regarding the audit of Plaintiff and her time are attached as Exhibits to Defendants' Doc. 36 reply brief. As discussed below, the Court concurs with Defendants that the Audit Trail Reports and the completion screens as well as the testimonies of Mongi and Uebberroth show that Defendants believed Plaintiff was not productive for more than 30 hours for which she was paid, and that this was one legitimate nondiscriminatory reason for Plaintiff's termination.

This Court has jurisdiction over this action with respect to Plaintiff's federal claim, i.e. her ADEA claim, pursuant to 28 U.S.C. § 1331. See Verdecchia v. Douglas A. Prozan, Inc., 274 F.Supp.2d 712, 719 (W.D. Pa. 2003). The Court can exercise its supplemental jurisdiction over Plaintiff's state law PHRA claim under 28 U.S.C. §1367.


The Court previously summarized the allegations in Plaintiff's Amended Complaint as follows:

Plaintiff was hired by Defendant PMC on June 21, 1999[, ] in the Medical Records Department. (Doc. 6, ¶ 17). At the time of her termination, Plaintiff was designated as a Coder II. (Doc. 6, ¶ 19). Plaintiff alleges that "her duties included coding medical records in accordance with Medical Coding conventions, and conducting or participating in medical record audits." (Doc. 6, ¶ 20). She further alleges that "[a]s a result of these duties, Plaintiff had and was permitted regular access to medical records of patients both for the purpose of entering medical codes, and auditing records entered by other employees." (Doc. 6, ¶ 21). On August 31, 2010, Plaintiff was terminated by Defendants Mongi and Ueberroth. (Doc. 6, ¶ 22). Plaintiff alleges that the reason stated for termination was "performance." (Doc. 6, ¶ 25). [Fn 2: Plaintiff alleges that "[a]t all times during her eleven years of employment, Plaintiff's performance was outstanding, and she had received recognition for her performance." (Doc. 6, ¶ 23).]
Plaintiff avers that she later learned that Defendant PMC, acting through Defendants Mongi and Ueberroth, falsely claimed that she engaged in "theft of time" (receiving wages for unproductive time) and that she violated HIPPA. (Doc. 6, ¶ 26). Plaintiff alleges that those allegations are false and were known to be false by Defendants Mongi and Ueberroth. (Doc. 6, ¶ 27). Plaintiff claims that the "theft of time" charge (concerning thirty (30) hours of time when she produced no work whatsoever) was falsely made, explaining that Defendants Mongi and Ueberroth assigned Plaintiff to audits and other non-coding duties. (Doc. 6, ¶'s 28-29). Plaintiff further claims that the HIPPA violations (accessing medical records that she was not coding) was falsely made as well, explaining that she accessed those medical files while working on the audits and other non-coding duties assigned to her. (Doc. 6, ¶'s 30-31).
Plaintiff alleges that when she explained to Defendants Mongi and Ueberroth that the allegations were false, her explanation was dismissed as "no useful, exculpatory information justifying the fact that she was claiming wages." (Doc. 6, ¶'s 32-33). The explanation was referred to by Defendants as "rude, insubordinate and condescending" and was claimed as an additional reason for her termination. (Doc. 6, ¶ 34). Plaintiff "avers that these false claims were made by [Defendants Mongi and/or Ueberroth] solely to aid and abet the discriminatory actions of [Defendant PMC], and were made with a common purpose to cause Plaintiff's termination on account of her age." (Doc. 6, ¶ 36). Plaintiff then avers that Defendant PMC "had a continuing need for [a] Coder, and that she was replaced by, or her duties reassigned to a significantly younger person." (Doc. 6, ¶ 37).
Plaintiff has requested the following relief: that the Court exercise jurisdiction over her ADEA claims and PHRA claims; award traditional tort remedies (compensatory damages, pain and suffering, physical and emotional distress, economic loss, time loss, and severe emotional trauma) under the PHRA claims; issue declaratory and injunctive relief declaring the above-described practices to be unlawful, and enjoining their past and continued effects; compensation with a rate of pay and other benefits and emoluments to employment, to which she would have been entitled, had she not been subject to unlawful discrimination; front pay, if appropriate; compensation for wages and other benefits and emoluments of employment lost due to Defendants' unlawful conduct; liquidated damages under the ADEA because of its willfully unlawful conduct; pre- and post-judgment interests, costs of suit and attorney and expert witness fees as allowed by law; reinstatement to her former position; attorney's fees and cost[s]; and such other relief as deemed just and proper. (Doc. 6, pp. 7-8).

(Doc. 12, pp. 2-3).

Insofar as Plaintiff requests as relief for the Court to issue declaratory relief declaring the alleged past practices of Defendants to be unlawful, the Court finds that declaratory relief is not appropriate in this case.

In Blakeney v. Marsico, 340 Fed.Appx. 778, 780 (3d Cir. 2009), the Third Circuit Court stated:

To satisfy the standing and "case or controversy" requirements of Article III, a party seeking a declaratory judgment "must allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future." Bauer v. Texas, 341 F.3d 352, 358 (5th Cir.2003) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102-03, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). Here, Blakeney seeks a declaration merely that defendants' "acts" and "policies" violate the United States and Pennsylvania Constitutions. He does not allege that he will be subjected to that alleged conduct in the future. Moreover, even if defendants violated Blakeney's rights in the past as he alleges, he is not entitled to a declaration to that effect. See Brown v. Fauver, 819 F.2d 395, 399-400 (3d Cir.1987) (directing District Court to dismiss prisoner's Section 1983 claim for prospective relief where appellant "has done nothing more than allege past exposure to unconstitutional state action").

"More generally, [d]eclaratory judgment is inappropriate solely to adjudicate past conduct... [n]or is declaratory judgment meant simply to proclaim that one party is liable to another.'" Hodinka v. Delaware County, 759 F.Supp.2d 603, 610 (E.D.Pa. 2011)(quoting Corliss v. O'Brien, 200 Fed.Appx. 80, 84 (3d Cir. 2006).

Plaintiff Lowe fails to allege that there is a substantial likelihood that she will suffer injury in the future from Defendants if the Court does not issue declaratory relief. In fact, as stated, Plaintiff was terminated by Defendants on August 31, 2010, and she has not been re-hired by Defendants. Plaintiff began a new job as a Coder with a new employer about one year after her termination with PMC and she was still employed in this position as of her deposition in this case. Further, Plaintiff does not allege that there is a substantial likelihood that someday in the future she will again be subject to the alleged unlawful conduct by Defendants and suffer injury in the future. Also, as the Court in Blakeney stated, even if Defendants violated Plaintiff's rights in the past as Plaintiff alleged in his Complaint, he was not entitled to a declaration to that effect. Id .; Hodinka v. Delaware County, supra .; Perez v. Piazza, Civil No. 12-0227, M.D. Pa.

Therefore, because Plaintiff Lowe has not met the standards necessary for the Court to issue declaratory judgment, the Court will dismiss this request with prejudice, as we find futility in allowing Plaintiff to amend her Amended Complaint with regards to this relief request. See Blakeney, supra ; Hodinka v. Delaware County, supra .


A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). An issue of fact is "genuine' only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A fact is "material" if proof of its existence or non-existence could affect the outcome of the action pursuant to the governing law. Anderson, 477 U.S. at 248. "Facts that could alter the outcome are material facts." Charlton v. Aramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022 (1994).

The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F.Supp. 314, 320 (E.D. Pa. 1982), aff'd mem. 725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions, answers to interrogatories and admissions on file" designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the nonmovant's allegations as true and resolve any conflicts in his favor. Id., quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976) cert. denied, 429 U.S. 1038 (1977).

Under Rule 56 summary judgment must be entered where a party "fails to make a 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 ...

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