“Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their 29 group.”
How later courts described this case
- “Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their 29 group.”
- determining that a plaintiff plausibly stated an ADEA claim based on allegations of a hostile work environment when reviewing meritoriousness as part of a sanctions analysis
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LISA POMPA, : No. 3:21¢v1378
Plaintiff :
: (Judge Munley)
Vv. :
ST. LUKE’S HOSPITAL, BLUE
MOUNTAIN HOSPITAL d/b/a ST. :
LUKE’S HOSPITAL — GNADEN :
HUETTEN CAMPUS OF :
LEHIGHTON, PA, and ST. LUKE’S :
UNIVERSITY HEALTH NETWORK, :
Defendants :
MEMORANDUM
In 2018, the St. Luke’s University Health Network acquired a smaller
healthcare network of hospitals and other facilities.’ In doing so, St. Luke’s
brought numerous employees at those facilities into their system. One of those
individuals was Plaintiff Lisa Pompa. Pompa contends that she experienced an
age-based hostile work environment after the acquisition, which was perpetuated
her new supervisor, She reported this individual to St. Luke’s human
resources department for age discrimination. St. Luke’s then terminated the
1 The defendants in this action include St. Luke’s Hospital, Blue Mountain Hospital d/b/a St.
Luke’s Hospital - Gnaden Huetten Campus of Lehighton, PA and St. Luke's University Health
Network. The court will refer to these defendants collectively as “St. Luke’s” in this
memorandum.
plaintiff. Consequently, Pompa claims that St. Luke’s did so in retaliation for her
age discrimination complaints.
Before the court is a motion for summary judgment filed by St. Luke's.
(Doc. 44). in defending against Pompa’s lawsuit, St. Luke’s alleges that Pompa
: acted insubordinately and unethically. St. Luke’s contends that the plaintiff's
conduct required the healthcare network to reimburse the Centers for Medicare
| and Medicaid Services (“CMS”) for improper medical billing.
The parties maintain two different narratives based on an extensive
summary judgment record. The question posed by this motion is whether
| Pompa’s narrative is supported by evidence that demonstrates a genuine issue
| of material fact regarding her claims. Having been fully briefed and
| supplemented by the parties, St. Luke's motion for summary judgment is ripe for
disposition.
Background
In January 2018, St. Luke’s acquired Blue Mountain Health System (“Blue
Mountain”), which was a Carbon County-based healthcare network. (Doc. 45,
SOF J 7).2 St. Luke’s took over responsibility for managing the Gnaden Huetten
2 When possible, the court references St. Luke’s statement of material facts (“SOF”), (Doc. 45),
for facts that are not disputed in Pompa’s counterstatement of material facts (“(CSOF”), (Doc.
57). Otherwise, this memorandum cites to portions of the summary judgment record supplied
by the parties. Ail facts from the record are construe in a light most favorable to plaintiff as
| Memorial Hospital (“Gnaden’) in Lehighton along with the Palmerton Hospital
(“Palmerton”). (id.) Blue Mountain’s various healthcare departments thus fell
| under the St. Luke’s umbrella, including its cardiopulmonary rehabilitation
programs at Gnaden and Palmerton. (See id. 10). At the time of the
acquisition, Pompa managed the cardiopulmonary rehabilitation departments at
Blue Mountain. (Doc. 57-1, Pl. Ex. 1, Pl. Dep. 14:24—-15:6).
Cardiopulmonary rehabilitation involves different components. (Id. 16:2-
16). Relevant to this case, Pompa described Blue Mountain's model of treatment
as focusing on physical therapy components. (Id., 16:2-16, 55:24-56:6, □□□□□□
75:1). St. Luke’s uses a different cardiopulmonary rehabilitation model. Their
program does not operate through a physical therapy department. (Doc. 45-3,
Def. Ex. B, W. Merkert Dep. 55:12-56:1).
As for the Blue Mountain model of treatment, Pompa testified that she
helped create that system’s cardiopulmonary rehabilitation program at Gnaden in
1993. (Doc. 57-1, Pl. Ex. 1, Pl. Dep. 13:5-14:7). For many years, Pompa
reported to Gary Higgins, the program director, and Dr. William Markson, the
medical director. (Id., 13:23-14:7). She also worked alongside a physical
the nonmoving party. See Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 187 (3d Cir.
2015)(citation omitted).
therapist, Mary Fulton, and physical therapist assistants, Linda Rehus and Karen
Alboucg. (Id., 14:8-16). Pompa remained in a managerial role when Gnaden
became a part of Blue Mountain, and she counted approximately twenty-five (25)
years of service in that position when St. Luke’s acquired Blue Mountain. (Id.,
15:7-13; see also Doc. 57-10, PI. Ex. 10, Pl. Email to R. Schaller 11/15/2078),
All of the above-named individuals involved with cardiopulmonary rehabilitation at
Blue Mountain carried over when Gnaden and Palmerton became part of the St.
Luke’s healthcare network.
In March 2018, St. Luke’s management held an introductory meeting with
Blue Mountain management and its cardiopulmonary rehabilitation staff. (Doc.
45, SOF 7 11). Blue Mountain’s president, Terry Purcell, advised Pompa that her
job title would remain the same.* (Doc. 57-1, Pl. Ex. 1, Pl. Dep. 55:16-23). Per
Pompa, she received information that the St. Luke’s-Blue Mountain
cardiopulmonary rehabilitation program would continue to function under the
physical therapy model. (id. 55:24—56:6). From that meeting, Mary Fulton, the
department physical therapist, also believed that she and Pompa would continue
providing the same model and modes of therapy after transitioning to St. Luke’s.
3 Purcell became “President, SLBM.” (See Doc. 45-19, Def. Ex. O, W. Merkert Memo
01/25/2019, ECF p. 3). Presumably this means that Purcell transitioned into the same role at
the St. Luke’s campuses that were formerly owned by Blue Mountain. Hereinafter, the court
will hereinafter refer to the facilities involved as Luke’s-Blue Mountain.”
(Doc, 57-2, Pl. Ex. 2, M. Fulton Dep. 119:8-120:1). According to Pompa’s
testimony, that model involved the use of physical therapy with both one-on-one
(“1:1”) and group therapy treatments. (Doc. 57-1, Pl. Ex. 1, Pl. Dep., 16:9-21).
In July 2018, William Merkert became solely responsible for managing the
cardiopulmonary rehabilitation departments at the St. Luke’s-Blue Mountain
campuses. (Doc. 45, SOF 7 14).4 Merkert is St. Luke’s director of
cardiopulmonary rehabilitation. (Id. Ff] 12-13). Merkert gave employees the
impression that he did not like the physical therapy components of the
cardiopulmonary rehabilitation program that carried over from Blue Mountain.
(See e.g. Doc. 45-21, J. Stehman Interview of J. Graver).
As discussed in this memorandum, Pompa alleges that Merkert harassed
her and discriminated against her based on her age. Based on a cascading
series of interactions with Merkert and his alleged differential treatment of the
plaintiff versus younger workers, Pompa asserts hostile work environment claims
against St. Luke’s pursuant to the Age Discrimination in Employment Act of 1967,
29 U.S.C. §§ 621, et seq. (“ADEA”) and the Pennsylvania Human Relations Act,
73 PA. STAT. §§ 951, et seq. (“PHRA’). (Doc. 1, Compl., Counts IIl and IV).
4 According to Merkert’s testimony, the comparable program director from Blue Mountain, Gary
Higgins, continued with St. Luke’s during the transition period in a “unique situation” before he
“stepped aside and retired.” (Doc. 45-3, Def. me B,, W. Merkert Dep. 17:5-16).
Pompa also maintains retaliation claims under these statutes. (ld., Counts |
and Il). Based on the March 2018 meeting referenced above, Pompa operated
under the impression that she would be managing the cardiopulmonary
rehabilitation program at St. Luke’s-Blue Mountain “in conjunction” with Merkert
under the previous physical therapy model of care, which included use of 1:1
therapy. (Doc. 45-25, Def. Ex. U, L. Pompa Email, 08/28/2018, ECF p. 2-3). On
August 2, 2018, however, Merkert emailed Pompa and Mary Fulton and stated:
“By design of ALL of our facilities, we provide group exercise.” (Doc. 45-24, Def.
Ex. U), On the other hand, Merkert also indicated that “there may be a necessity
for a highly acute patient to receive 1:1 care for a few sessions... but this should
only be used in special situations and should not be the choice for daily rehab.”
(Id.)
St. Luke’s defenses in this action relate to Pompa’s continued use of 1:1
therapy and the insurance billing for such therapy. Pompa concedes that she
and Merkert “at times disagreed as to the use of a certain billing code used for
pulmonary therapy.” (Doc. 57, CSOF § 36). The 1:1 therapy billing code in
question is G0238. St. Luke’s takes the position that G0239, a different billing
code for group therapy, was the only one appropriate for the care provided by the
plaintiff.
On August 24, 2018, Merkert emailed Pompa again, but did not include
Fulton on the message. (Doc. 45-25, Def. Ex. U, ECF p. 3-4). Merkert indicated:
Lisa,
We discussed phasing out all 1:1. pulmonary rehab
appointments at both campuses...
e You were instructed to phase out ALL G0238 charges.
o Granted, | did say there may be a time when it is
warranted for a true 1:1 with high acuity.
o The example below [screenshot omitted] does not
qualify for 1:1
It is not my intent to micromanage but it is imperative that
we are 100% ethical in our performance.
From today forward, please contact me for approval to use
G0238...
G0239 should be used for all non-COPD patients.
| am very aware that we receive a higher payment for
G0238 but by the nature of our programs, we are providing
group exercise.
(Id. (formatting modified)).
On August 28, 2018, Pompa responded to Merkert’s email. (Doc. 57-17, PI.
Ex. 17). In the email, Pompa advocated for the physical therapy model of care
and billing practices that she used when treating patients with Blue Mountain,
including 1:1 therapy. (Id.) Pompa explained that certain patients required 1:1
care based on their diagnoses, such as those awaiting lung transplants. (Id.)
Additionally, Pompa documented other St. Luke’s-Blue Mountain transition
issues, such as scheduling 1:1 patients, reduction of physical therapy staff by
50%, and matters related to the launch of the Epic electronic health record
system in the department. (Id.)} She wrote to Merkert: “Since you have utilized
the schedule as shown on Epic, | would kindly remind you as | mentioned to you
previously[,] we are having issues with our secretary scheduling patients. This is
a daily challenge and has required daily coaching.” (Id.) She concluded her
email: “Perhaps you can consider using these G Codes throughout the network
to capture larger revenue...while providing quality of care and remaining in
compliance. It can be done successfully!” (Id.)
In his deposition, Merkert did not recall responding to Pompa’s email. (Doc.
57-5, Pl. Ex. 5. W. Merkert Dep. 53:17-54:2). He later told a St. Luke’s human
resources director that he should have placed Pompa on a corrective action plan
j at that time. (Doc. 57-21, Pl. Ex. 21, J. Stehman Dep. 27:2-18). Pompa,
| however, did not receive any written discipline from Merkert or from St. Luke’s for
sending this email in August 2018.°
5 The August 2018 emails between Merkert and Pompa were exchanged as Merkert and other
| decision-makers determined how the plaintiff fit into the St. Luke’s healthcare network. (Doc.
45-15, Def. Ex. K; Doc. 45-16, Def. Ex. L). As of August 15, 2018, Merkert believed that
| Pompa should retain her manager title. (Doc. 45-15). On August 23, 2018, Merkert also
emailed Terry Purcell, the St. Luke’s-Blue Mountain president, indicating that he was “trying to
justify the position[.]’ (Doc. 45-16). Pompa senune above email to Merkert on August 28,
In October 2018, Merkert and other St. Luke’s decision-makers formally
stripped Pompa of her managerial title. (Doc. 57-5, Pl. Ex. 5. W. Merkert Dep.
84:5-25). St. Luke's changed Pompa’s title to physical therapy assistant. (Id.)
She no longer provided direct oversight of other department employees. (Id.
24:16-25:4). St. Luke’s also changed the manner of Pompa’s compensation
from salaried to hourly. Although St. Luke’s preserved her pay rate, Pompa’s
new position was “red-circled,” meaning she could not receive any raises. (Doc.
57-9, Pl. Ex. 9. S. Goral Dep. 21:13-22:19). In this action, Pompa asserts that
Merkert treated her poorly based on her age and intentionally created various
issues to force her resignation, including the title and pay changes.
Pompa did not resign. Instead, on November 15, 2018, Pompa reported
Merkert to a senior vice president in St. Luke’s human resources department.
(Doc. 57-10, Pl. Ex. 10, L. Pompa Email to R. Schaller 11/15/2018). Pompa
accused Merkert of age discrimination and alleged that he created a hostile work
environment. She copied an employment law attorney on her message. (ld.)
2018. The next day, on August 29, 2018, Merkert met with Purcell. (Doc. 57-6, PI. Ex. 6, T.
Purcell Email). Following the meeting, Purcell emailed William Moyer (another St. Luke’s
president) stating that Merkert was “concerned about [Pompa] and does not want her to be a
manager. He is going to make her a [physical therapy assistant] or exercise physiologist and
he will manage our program. She will not take 3 well but it is the right thing to do.” (Id.}
That St. Luke’s executive assigned a human resources director, Jennifer
Stehman, to investigate. (Doc. 45, SOF 4] 103). Stehman interviewed Pompa
first, on November 20, 2018. (Doc. 45-27, Def. Ex. W. J. Stehman Report,
0001489). From that initial interview, Stehman concluded that Pompa “was
exceptionally angry about the Blue Mountain/St. Luke's transition, specifically that
she was no longer the Cardiac Rehab Manager, and that she feels extreme
hostility towards Bill Merkert, who she blames for loss of her management role.”
(Id.) Nonetheless, Stehman also asked Pompa to send her “a detailed statement
about interactions with Bill Merkert, making sure to list dates, times, witnesses,
etc.” (Id.)
Stehman interviewed Merkert on November 21, 2018, providing him with a
copy of Pompa’s allegations. (Id.; Doc. 57-21, Pl. Ex, 21 J. Stehman Dep. 22:20-
23:20). Merkert then used the interview with Stehman as an opportunity to
present his issues with Pompa as an employee, including their differing views
about billing codes. (Doc. 45-27, Def. Ex. W. J. Stehman Report, 0001489). A
week after the interview, on November 28, 2018, Merkert emailed Erin Witkosky
in St. Luke’s compliance department for guidance regarding the use of the
G0238 code at St. Luke’s-Blue Mountain. (Doc. 45-19, Def. Ex. O, W. Merkert
| Memo 01/25/2019). At that time, Witkosky served as St. Luke’s manager of
10
network compliance. (Doc. 45-12, Def. Exh. H., E. Witkosky Dep. 9:9-24). From
Merkert’s request, Witkosky conducted an audit of Pompa’s department. (Id.
12:14-24).
On December 4, 2018, and prompted by Stehman in human resources,
Pompa emailed a detailed memorandum describing numerous instances of
Merkert’s allegedly discriminatory conduct. (Doc. 45-22, Def. Ex. R). Pompa
also copied her attorney on her submission to St. Luke’s. (Id.) Stehman then
shared a copy of Pompa’s second written complaint with Merkert. (Doc. 57-5, Pl.
Ex. 5, W. Merkert Dep. 126:14-127:19). As of December 4, 2018, Merkert and
Witkosky had communicated about Witkosky performing random reviews of
Pompa’s department for use of the G0238 code. (Doc. 45-12, Def. Exh. H., E.
Witsosky Dep. 40:6-41:9). Also as of December 4, 2018, Merkert had advised
Stehman in human resources that Witkosky would be randomly reviewing
Pompa’s department. (id.}
After Pompa submitted the more-detailed complaint on December 4, 2018,
she alleges that her situation at work rapidly worsened. On December 17, 2024,
Merkert emailed records and screenshots to the network’s HR and compliance
departments, which St. Luke’s uses in this litigation to argue that Pompa was
11
actively insubordinate regarding patient billing. (Doc. 45-19, Def. Ex. BB, W.
Merkert Email 012/1 7/2018).
Specifically, on December 13, 2018, Pompa treated a pulmonary
rehabilitation patient and inputted the charge using G0238, the 1:1 therapy code.
(Doc. 45, SOF F125). Witkosky caught use of the code on that same date and
emailed Merkert. (Doc. 45-28, Def. Exh. X., E. Witkosky Email 12/13/2018,
0001324). On December 14, 2018, Merkert changed the charge code to G0239,
the group therapy code. (Doc. 45, SOF 129). After a phone call from Merkert,
the details of which the parties dispute, Pompa then changed the billing code
back to G0238 for 1:1 therapy, which she asserts was a proper correction. (Doc.
57-1, Pl. Dep, 155:1—159: 15).
Merkert reported the billing code changes to Stehman in St. Luke’s human
resources department and Witkosky in St. Luke’s compliance department. (Doc.
45-19, Def. Ex. BB, W. Merkert Email 12/17/2018). He accused Pompa of “direct
insubordination” and indicated that the plaintiff's conduct “put the hospital’s
Medicare relationship in jeopardy.” (Id.) He concluded his email with the
following: “In light of the allegations against me, | greatly appreciate your
guidance.” (Id.)
12
The St. Luke’s investigation into Pompa’s allegations of age discrimination
against Merkert thus also involved internal investigation into Merkert’s allegations
of the plaintiff's insubordination over use of the G0238 billing code and one
patient's billing changes.
Stehman and Syivia Goral, another human resources director, interviewed
only one of Pompa’s listed witnesses before Merkert sent the above email about
billing code changes. (Doc. 45-27, Def. Ex. W. J. Stehman Report, 0001490).
Pompa’s other longtime co-workers, Mary Fulton, Linda Rehus, and Karen
Alboucq were interviewed following Merkert’s email. (Id.). Ultimately, Merkert
and Goral suspended Pompa on December 20, 2018. (Doc. 45-6, Def. Ex. CC).
Goral then sent Pompa a letter terminating her employment with an effective date
of January 8, 2019. (Id.) St. Luke’s written reasons for termination included:
“Unsatisfactory work performance, refusing to follow the instructions of
immediate supervisor...or failure to perform a job assignment, or a reasonable
request by a supervisor.” (id.)
After exhausting her administrative remedies, Pompa filed this action
against St. Luke’s pursuant to the ADEA and PHRA. (Doc. 1). Pompa’s
complaint asserts the following claims: Count | — ADEA retaliation; Count Il —
| 13
PHRA retaliation; Count Ill - ADEA hostile work environment; and Count IV —
| PHRA hostile work environment.
Witkosky conducted an audit of St. Luke’s-Blue Mountain's use of the
G0238 billing code after Merkert’s November 28, 2018 email. (Doc. 45, SOF J
113). Witkosky determined that Pompa used the G0238 billing code on 34
occasions and that Mary Fulton used the code on 58 occasions. (Doc. 45-12,
Def. Ex. H. E. Witkosky Dep. 86:1-87:14). As a result of the audit, St. Luke’s
decided to pay CMS $10,372.99 as a reimbursement for claims between June
23, 2018 and November 30, 2018. (id. 117:5-119:13). Fulton testified that she
had used the G0238 billing code on the patient involved in the present dispute
and assessed that patient as a candidate for 1:1 therapy. (Doc. 57-2, Pl. Ex. 2,
M. Fulton Dep. 44:13—45:16, 60:16-61:16). Fulton also testified that the □□□□□□□□□
insurance provider approved 71:1 therapy for thirty-six (36) sessions and that “you
| would never change billing midway.” (Id.) Merkert ultimately promoted Mary
Fulton to a regional coordinator position for St. Luke’s in 2020 or 2021. (Doc. 45-
3, Def. Ex. B, W. Merkert Dep. 17:17-19:18).
| St. Luke's, on the other hand, asserted four (4) counterclaims against
Pompa in this litigation, alleging wrongful use of the G0238 billing code by the
| plaintiff. (Doc, 14, Am. Answer, Counterclaims I-IV). St. Luke's alleged that
.
Pompa breached her fiduciary duty to St. Luke’s, acted with gross negligence,
and became unjustly enriched. Those counterclaims were dismissed by the
Honorable Malachy E, Mannion in March 2023. (Docs. 34-35). Subsequently, St.
Luke’s filed a second amended answer, emphasizing that it suspended and
terminated Pompa after she “took her insubordinate conduct to a new level”
regarding the G0238 billing code. (Doc. 39 75). St. Luke’s now asserts
recoupment from Pompa as an affirmative defense. (Id. p. 47).
By the parties’ accounts, this case required extensive fact and expert
discovery. (Doc. 52, Def. Br. in Supp. at 9). Following the close of discovery, St.
Luke’s filed the instant motion for summary judgment, which brings this case to
its present posture.
Jurisdiction
Because this case is brought pursuant to the ADEA, the court has
jurisdiction pursuant to 28 U.S.C. § 1331. (“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of
the United States.”). The court has supplemental jurisdiction over plaintiff's PHRA
claims pursuant to 28 U.S.C. § 1367(a). (“In any civil action of which the district
courts have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within
15
such original jurisdiction that they form part of the same case or controversy
under Article Ill of the United States Constitution.”).
Standard of Review
St. Luke's has filed a motion for summary judgment seeking dismissal of
this action with prejudice. Granting summary judgment is proper ‘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.’
” See Knabe v. Boury Corp., 114 F.3d 407, 410 n. 4 (3d Cir. 1997) (quoting FED.
R. Civ. P. 56(c)). “[T]his standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original).
in considering a motion for summary judgment, the court must examine the
facts in the light most favorable to the party opposing the motion. Inti Raw
Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir.1990). The
burden is on the moving party to demonstrate that the evidence is such that a
| reasonable jury could not return a verdict for the non-moving party. Anderson,
16
477 U.S. at 248. A fact is material when it might affect the outcome of the suit
under the governing law. Id. Where the non-moving party will bear the burden of
| proof at trial, the party moving for summary judgment may meet its burden by
showing that the evidentiary materials of record, if reduced to admissible
evidence, would be insufficient to carry the non-movant's burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party
satisfies its burden, the burden shifts to the nonmoving party, who must go
beyond its pleadings, and designate specific facts by the use of affidavits,
depositions, admissions, or answers to interrogatories showing that there is a
genuine issue for trial. Id. at 324.
“In employment discrimination cases, the summary judgment standard is
‘applied with added rigor’ because ‘intent and credibility are crucial issues.’ ”
Walden v. Saint Gobain Corp., 323 F. Supp. 2d 637, 641 (E.D. Pa. 2004)(quoting
Stewart v. Rutgers, The State Univ., 120 F.3d 426, 431 (3d Cir. 1997)).
Moreover:
Employment discrimination cases center around a single
question; why did the employer take an adverse
employment action against plaintiff? Because this is clearly
a factual question, summary judgment is in fact rarely
appropriate in this type of case. Simply by pointing to
| evidence which calls into question the defendant's intent,
| the plaintiff raises an issue of material fact which, if
genuine, is sufficient to preclude summary judgment.
17
Marzano v. Computer Sci. Corp. Inc., 91 F.3d 497, 509-10 (3d Cir. 1996){internal
quotation marks, citation, and explanatory parentheticals omitted).
Analysis
1. Judicial Estoppel
Prior to review of any facts relative to Pompa’s ADEA/PHRA hostile work
environment and retaliation claims, the court must resolve a dispute between the
parties that resulted in an additional round of briefing. Specifically, St. Luke’s
seeks the application of judicial estoppel and dismissal of Pompa’s retaliation
claim. (Doc. 61, Def. Reply Br. at 14-17; Doc. 71, Def. Sur-Sur Reply Br. at 1-2)).
This issue arose after St. Luke’s devoted approximately twelve (12) pages
of its brief in support arguing against claims that do not appear on the face of
Pompa’s complaint, that is, any allegation that St. Luke's terminated the plaintiff
because of her age. (Doc. 52 at 22-34). The plaintiff indicated in her brief in
opposition that she “does not contend that St. Luke’s suspended or terminated
her because of her age.” (Doc. 56, PI. Br. in Opp. at 26 (emphasis in original)).
Rather, per Pompa, “she was suspended and discharged in retaliation for
engaging in protected activity[.]” (Id.)
As indicated above, Pompa’s complaint includes claims for retaliation
pursuant to the ADEA and PHRA and claims for hostile work environment under
18
these statutes. Pompa’s complaint does not include any claims for age
discrimination related to her termination. Rather, her hostile work environment
claims assert that she experienced ongoing age-related harassment and
discrimination culminating in her title and pay changes. (Doc. 1, Compl. □□□ 167—
189). Pompa’s complaint relates her suspension and termination to employer
retaliation for the plaintiffs internal report of age-related harassment and
discrimination. (ld. 137-166). Nonetheless, St. Luke’s argues that Pompa “is
playing fast and loose” with her legal theories because she asserted in her
Pennsylvania Human Relations Commission (“PHRC”) complaint that St. Luke’s
terminated her in retaliation for reporting age discrimination by Merkert and
because of her age. (Doc, 61-1, Def. Ex. EE, ECF p. 16).
Pursuant to the doctrine of judicial estoppel, a plaintiff who has obtained
relief from an adversary by asserting and offering proof to support one position,
will not be heard later in the same court to contradict herself to establish a
second claim inconsistent with her earlier contention against the same adversary.
See Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp., 337 F.3d
319 (3d Cir. 2003)(citing Scarano v. Central R. Co. of N.J., 203 F.2d 510
(3rd Cir. 1953)). The Third Circuit Court of Appeals has identified certain criteria
19
for determining when seemingly inconsistent litigation stances justify the
application of judicial estoppel:
First, the party to be estopped must have taken two
positions that are irreconcilably inconsistent. Second,
judicial estoppel is unwarranted unless the party changed
his or her position “in bad faith -i.e., with intent to play fast
and loose with the court.” Finally, a district court may not
employ judicial estoppel unless it is “tailored to address the
harm identified” and no fesser sanction would adequately
remedy the damage done by the litigant’s misconduct.
id. (quoting Montrose Med. Grp. Participating Sav. Plan v. Bulger, 243 F.3d 773,
779-80 (3d Cir. 2001})(emphasis in original).
Pompa’s positions are not irreconcilably inconsistent and will not be
judicially estopped. She alleged in both the PHRC complaint and the complaint
in this action that St. Luke’s retaliated against her for reporting age discrimination
by her supervisor. Pompa has simply removed two potential causes of action
from the instant case. That is, her civil complaint only asserts ADEA/PHRA
retaliation and hostile work environment claims. She does not allege any claims
for direct age discrimination related to her termination.
Under the law, Pompa may proceed with different claims based on the
different adverse actions she allegedly experienced, including her allegations of
ongoing age-related harassment from Merkert. She may assert that she
experienced intentional age discrimination as part of her hostile work
20
environment claim to include multiple events culminating in her title and pay
changes. She may, at the same time, assert that she experienced retaliation in
the form of suspension and termination for reporting to St. Luke’s her good faith
belief that Merkert was discriminating against her based on her age.® After all,
retaliation for complaining about age discrimination is discrimination based on
age. See Gomez-Perez v. Potter, 553 U.S. 474, 488 (2008). Thus, any change
Pompa’s claims between the administrative level and this action is
inconsequential.’ Pompa is not playing fast and loose with the courts. Judicial
estoppel will not be applied here.
As discussed in Section 3 of this memorandum, St. Luke’s does not challenge whether
Pompa’s complaints of age discrimination constituted protected activity for the purposes of her
retaliation claim. (Doc. 52, Def. Br. in Supp. at 11).
? Additionally, “judicial estoppel, ‘generally prevents a party from prevailing in one phase of a
case on an argument and then relying on a contradictory argument to prevail in another
phase.’ ” New Hampshire v. Maine, 532 U.S. 742, 749 (2001)(quoting Pegream v. Herdich,
530 U.S. 211, 227, n. 8 (2000)), Pompa did not prevail or obtain relief from the PHRC or from
the Equal Employment Opportunity Commission (“EEOC”) regarding any age discrimination
claim related to her termination. Instead, the EEOC issued her a right-to-sue letter. (Doc. 1,
Compl, Ex. A, ECF p. 39). The PHRC then advised Pompa that it was closing her case at an
administrative level after she filed this action. (Doc. 68, Ex. A, ECF p. 8-11).
21
2. Hostile Work Environment
Turning now to Pompa’s claims in this action, she contends that she
experienced an age-based hostile work environment.® To succeed on an age-
based hostile work environment claim, the plaintiff must demonstrate that: 1) she
suffered intentional discrimination because of her age; 2) the discrimination was
severe or pervasive; 3) the discrimination detrimentally affected the plaintiff; 4)
the discrimination would detrimentally affect a reasonable person in like
circumstances; and 5) the existence of respondeat superior liability.° See Mandel
v. M_& Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013\(citations omitted).
8 The Third Circuit Court of Appeals has not definitively stated whether a hostile work
environment claim may be advanced pursuant to the ADEA. See Hildebrand v. Allegheny
Cnty., 923 F.3d 128, 137 (3d Cir. 2019)(determining that a plaintiff plausibly stated an ADEA
claim based on allegations of a hostile work environment when reviewing meritoriousness as
part of a sanctions analysis); see also Adams v. City of Newark, 747 F. Supp. 3d 721, 731
(D.N.J. 2024)(citing Howell v. Millersville Univ. of Pennsylvania, 749 F. App’x 130 (3d Cir.
2018): Culler v. Sec'y of U.S. Veterans Affs., 507 F. App’x 246 (3d Cir. 2012)). in Howell, a
Third Circuit panel assumed, without deciding, that the ADEA permits hostile work environment
claims. 749 F. App’x at 135.
Pennsylvania’s intermediate appellate courts recognize PHRA age-based hostile work
environment claims and rely upon Title VII jurisprudence. See Renna v. PPL Elec. Utilities,
Inc., 207 A.3d 355, 368 (Pa. Super. Ci. 2019); Deter v. Borough of Sykesville, No. 500 C.D.
2019, 2020 WL 973341, at *1 (Pa. Commw. Ct. Feb. 28, 2020). Moreover, the provision of the
ADEA relevant to this case, 29 U.S.C. § 623(a)(1) is not specifically different than the PHRA
equivalent, 43 PA. STAT. § 955(a). See Willis v. UPMC Children's Hosp. of Pittsburgh, 808
F.3d 638, 643 & n. 4 (3d Cir. 2015){citations omitted). The court will thus assume the legal
viability of Pompa’s ADEA hostile work environment claim and refer to Title VII caselaw in
addressing St. Luke’s summary judgment arguments. The court will also address the ADEA
and PHRA hostile work environment ciaims in a combined analysis.
Title VIL and the ADEA are “comparable in many contexts.” Curay-Cramer v. Ursuline Acad.
of Wilmington, Delaware, Inc., 450 F.3d 130, 135, n. 4 (3d Cir. 2006); see also Culler, 507 F.
22
As to these elements, St. Luke’s targets only two in its motion for summary
judgment. St. Luke’s contends that Pompa did not suffer any intentional
discrimination because of her age. St. Luke’s also argues that, because plaintiff
did not suffer from age discrimination, she cannot demonstrate severe or
pervasive age-related harassment. The court will address these issues
separately.
a. Age Discrimination
The ADEA makes it unlawful for an employer to “otherwise discriminate
against any individual with respect to [her] compensation, terms, conditions, or
privileges of employment, because of such individual's age[.]” 29 U.S.C. §
623(a), Thus, to prevail on her ADEA hostile work environment claim, Pompa
must first demonstrate that she experienced discrimination because of her age. *°
Under the law, a plaintiff making an age discrimination claim survives summary
judgment if she has proof that the employer treated other, similarly situated
persons not of her protected class more favorably. Fuentes v. Perskie, 32 F.3d
759, 765 (3d Cir. 1994).
App’x at 249 & n. 3. The court thus borrows these elements from Title VIl case law to address
the plaintiff's ADEA/PHRA hostile work environment claims.
10 The prohibitions against age discrimination in the ADEA are limited to individuals who are at
least forty (40) years of age. 29 U.S.C. §
The summary judgment record reflects that Pompa was 53 years oid at the
time she became a St. Luke's employee in approximately June 2018. (Doc. 45,
SOF § 8). Between June 2018 and the date of her termination, Merkert
supervised Pompa both when the plaintiff managed the cardiopulmonary
rehabilitation department and when she later served as a physical therapist
assistant. Per the plaintiff, Merkert favored younger workers, who were rotated
into the plaintiffs department after the acquisition and provided those younger
workers with different, better treatment.
For example, Pompa worked with a per diem exercise physiologist named
Julie Williams. (Doc. 45-11, Def. Ex. G., J. Williams Dep. 24:4-15). Williams
turned 26 years old in July 2018, around the time Merkert began supervising the
plaintiff. (Id. 42:3-6). Pompa testified that, one day, she requested Merkert’s
assistance with Epic, St. Luke’s electronic health record system. (Doc. 57-1, Pl.
Ex. 1, Pl. Dep. 76:7-—77:2). Williams had created "tip sheets” to help Pompa’s
office with documentation in Epic. (Id.) in response to Pompa’s request for
assistance with that system, Merkert allegedly stated about Williams: “I love
when she kisses my ass. She'll do anything | ask.” (Id.)
Mary Fulton, the department's physical therapist, also recalled Merkert
making that statement. (Doc. 57-1, PI. Ex. 2, M. Fulton Dep. 113:1-114:8).
| 24
Merkert may have been 52 at the time, (Doc. 45, SOF { 3), but, per Fulton, that
comment demonstrated that Merkert was “immature” and “should not have been
delegated the task he was doing.” (Doc. 57-1, PI. Ex. 2, M. Fulton Dep. 82:4-25),.
Fulton added this context:
With his criticisms and things he stated, how he wanted
things done, we couldn't understand how all of these
expectations would be met with the amount of staff and
time allotted. And he had all of these other employees
running around doing everything, which we sort of didn't
feel was correct, and we're like -- and somebody made the
comment, well, you just -- you have them jumping all over;
and he just said, yeah, | just love how they kiss my ass.
And he was laughing.
(Id. 113:7-20)."'
Furthermore, Merkert’s treatment of Pompa regarding the Epic transition is
a substantial component of her argument that Merkert preferred younger workers
in the department. Pompa and her co-workers required training to use the Epic
system once they became St. Luke’s employees. (Doc. 57-1, Pl. Ex. 2, M. Fulton
Dep. 113:25-114:8). Workers in their 20s and 30s like Williams and others were
brought into Pompa’s department to help train them and were identified by Fulton
11 Pompa also testified that Merkert said things like, “l love Julie [Williams], she is like my
daughter. | even give her some of my clothes to wear.” (Doc. 57-11, Pl. Ex. 11, L. Pompa
Memo 12/4/2018, P000166}. Merkert allegedly stated this to Pompa on the day he removed
her management title. (Id.)
25
as the employees who were “running around” for Merkert. (Id. 113:25-114:17;
Doc. 57-1, Pl. Ex. 1, Pl. Dep. 39:4-18; 69:11-19, 74:2:5). Pompa testified that
Merkert would tell her that these “younger co-workers were able to perform this
job with no problem, [and] knew what they were doing[,]” while telling the plaintiff
she “was like the blind leading the blind.”'* (Doc. 57-1, Pl. Ex. 1, Pl. Dep. 39:4-
18; 69:11-19). Per Pompa, Merkert placed the younger employees “on a
pedestal[,]” and told the plaintiff that they were better than her, “better
performers,” “greater personalities” and that “they could run circles” around her.
(Id. 40:8-17).
Pompa also testified that Merkert would schedule Julie Williams to treat
physical therapy patients. (Doc. 57-1, Pl. Ex. 1, Pl. Dep. 74:6-75:1). Per Pompa,
because Williams was an exercise physiologist, Willlams did not have the degree
or license to be treating physical therapy patients. (Id.) When Pompa advised
Merkert that the practice was unethical, Merkert told the plaintiff: “I’m not worried
| about that.” (Id.) As Pompa indicated in her internal complaint to St. Luke’s,
| Merkert regularly questioned the plaintiff's qualifications and ability to treat
patients due to her lack of master’s degree. (Doc. 57, Pl. Ex. 11, L. Pompa Memo
| 2 Linda Rehus and Karen Alboucg worked as per diem physical therapist assistants in
Pompa’s department at St. Luke’s and carried over from Biue Mountain. These individuals are
a decade or more older than the plaintiff. (See Doc. 45, SOF FJ 4-5). At the time, Pompa
managed these individuals. 36
12/04/2018). And as discussed below regarding Pompa’s retaliation claims, St.
Luke’s asserts that the plaintiff acted unethically in treating and billing patients
and caused them to terminate her employment.
As another example, Pompa recalled an incident where Merkert yelled at
her in front of a patient and his wife. (Id, 83:16-85:5). Per Pompa, Merkert failed
to properly convert the cardiopulmonary rehabilitation schedule over to Epic and
the department still required some level of paper scheduling. (Id.) According to
Pompa, Merkert reprimanded her in a public setting, yelling: “Don’t you ever
schedule a patient without checking the schedule first.” (Id.). On the same date,
he allegedly praised Williams in front of Pompa for scheduling in the same
manner, stating: “Oh that was great Julie, I'm so glad you were able to do that.”
(id.} Pompa further testified that Merkert also granted access for Williams to
schedule patients from Epic work queues to obtain new referrals. (Id. 89:23—
91:3). Per Pompa, Merkert did not provide the plaintiff with the same access and
thus she could not obtain new patients. (id.; see also Doc. 57, Pl. Ex. 11, L.
Pompa Memo 12/04/2018, P000165). Pompa thus has evidence that a jury
could use to determine that Merkert discriminated against the plaintiff based on
her age by applying different rules and standards to younger workers."
13 Pompa further contends that Merkert deliberately set her up to fail regarding Epic. In June
2018, when Pompa still reported to Gary Moor she called Merkert to relay her department’s
Additionally, for the sake of addressing all the parties’ arguments, St.
Luke’s argues in its supplemental briefing that Pompa only has her own
testimony to connect the alleged mistreatment to age discrimination. (Doc. 71,
Def. Sur-Sur Reply at 2-3), For example, Mary Fulton testified that age did not
play a role in Merkert’s conduct. (Doc. 57-1, Pl. Ex. 2, M. Fulton Dep. 111:3-6).
The department secretary, Julie Graver, testified that Pompa and Merkert were
like “oil and water” and “just did not get along.” (Doc. 45-9, Def. Ex. E, J. Graver
Dep. 31:16-19). Graver, like Fulton, believed that the issues between the two
were not a matter of age discrimination. (Id. 46:4-14). She testified that Merkert
treated Pompa differently from the other staff members because the plaintiff
managed the cardiopulmonary rehabilitation department at the time St. Luke’s
took over. (id. 45:6-15). On the other hand, a per diem physical therapy
assistant in Pompa’s department at the time, Karen Alboucag, testified that
Merkert’s conduct had “undertones” of being age-related and that Merkert
statistics and number of procedures for the prior two (2) months. (Doc. 57-11, Pl. Ex. 11, L.
Pompa Memo 12/04/2018, P000162). Merkert told her: “Soon | won't need you. | will have
Epic, you are disposable.” (Id.) Per Pompa, she reported these comments to Higgins. (Id.)
Higgins, a Blue Mountain holdover, subsequently retired. (Doc. 57-5, PI. Ex. 5. W. Merkert
Dep. 17:5-16). The plaintiff's second, more-detailed complaint to St. Luke’s about age
discrimination indicates that St. Luke’s scheduled her for Epic training early in the transition
from Blue Mountain, but Merkert removed her, telling her she did not need it. (Doc, 57-11, PI.
Ex. 11, L. Pompa Memo 12/04/2018, P000162). Pompa documented numerous events
invelving Merkert over the next several months, to include further issues with Epic even after
she received training. (Doc. 57-11, Pl. Ex. 11, L. Pompa Memo 12/04/2018, PQ00162-—166).
28
favored “the younger girls” in the department once the St. Luke’s transition
occurred, (Doc, 57-4, Pl. Ex. 4, K. Alboucgq Dep. 109:6-110:23, 117:4-118:14).
Regarding the above evidence, St. Luke’s argues that Ailboucq’s deposition
testimony should essentially be disregarded at the summary judgment stage
because it differs from the account documented by St. Luke’s human resources
employees when they interviewed Alboucg in December 2018. (Doc. 61, Def.
Reply Br. at 4). Like all the individuals named in this memorandum, Alboucq’s
testimony is subject to a credibility determination. “Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facis
are jury functions, not those of a judge[.]” Anderson, 477 U.S. at 255. That
precludes summary judgment here.
St. Luke’s also repeatedly references that Merkert and Pompa were
approximately the same age. (Doc. 52, Def. Br. in Supp. at 2, 16, 18). The law,
however, does not provide a conclusive presumption that a person in the same
group will not discriminate against members of the same age group. See
Oncale v. Sundowner Offshore Servs., Inc,, 523 U.S. 75, 78 (1998); Castaneda
v.Partida, 430 U.S. 482, 499 (1977) (“Because of the many facets of human
motivation, it would be unwise to presume as a matter of law that human beings
of one definable group will not discriminate against other members of their
29
group.”). Pompa has otherwise provided evidence demonstrating genuine issues
of material fact about age discrimination. The closeness of age between Pompa
and Merkert is but one fact which must be submitted to a factfinder in order to
resolve this issue.
b. Severe or Pervasive Harassment
Additionally, to prevail on an ADEA hostile work environment claim, a
plaintiff must show that her workplace was “permeated with ‘discriminatory
intimidation, ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working
environment.’ ” Nat'l, R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116
(2002)(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). As for this
“severe or pervasive” element, in determining whether an environment is hostile,
“a court must consider the totality of the circumstances, including ‘the frequency
of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee's work performance.’ ” Mandel, 706 F.3d at 168 (quoting
Harris, 510 U.S. at 23). “[T]he resolution of that question is context-specific,”
Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017), with consideration of
overall scenario, see Qin v. Vertex, Inc., 100 F.4th 458, 471 (3d Cir. 2024).
30
Additionally," ‘conduct must be extreme’ to satisfy this standard, so ‘simple
teasing, offhand comments, and isolated incidents (unless extremely serious)’
are inadequate.” Mandel, 706 F.3d at 168 (quoting Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998)).
As discussed further in the next section, Pompa provided St. Luke’s with a
detailed memorandum to support her claims of age discrimination against
Merkert on December 4, 2018. Pompa’s memorandum documented more than
thirty (30) events from the previous six (6) months, indicating various instances in
which she believed that Merkert treated her differently from younger co-workers.
(PI. Ex. 11, L. Pompa Memo 12/04/2018). The court has referred only to some of
the matters addressed in that document above. Furthermore, Pompa testified
that Merkert’s ongoing conduct wore her down personally and professionally and
that she was getting “sick every day by his actions, his words, [and] his
treatmeni[.]’ (Doc. 57-1, PI. Ex. 1, Pl. Dep. 59:24-60:23).
Additionally, Merkert testified that Pompa’s age discrimination complaint to
human resources caught him “off guard” because he believed that he had a
“oretty good relationship” with the plaintiff. (Doc. 45-3, Def. Ex. A, 101:9-18).
Pompa has evidence to the contrary beyond her own testimony. Mary Fulton,
the department physical therapist, testified that Merkert would show up, take
31
i Pompa out of the treatment area into an office with the door closed. (Doc. 57-1,
Pj. Ex. 2, M. Fulton Dep. 71:25-72:18, 74:3-15). Per Fulton: “It would get loud[,]’
and Pompa would come out upset. (Id. 72:3-9). Pompa, who Fulton described
as “a hard ass and not a cryer[,]’ would cry once or twice a week after these
| meetings. (Id. 71:25-72:11). Merkert held these meetings with Pompa at the end
| of Pompa’s shift on Friday. (Id. 74:7-15). Per Fulton, Merkert “was continuously
rude” to the plaintiff in front of staff and patients. (id. 79:12-21).
Fulton may not believe that Merkert discriminated against the plaintiff
| based on her age, but her testimony about the nature of Merkert’s conduct
corresponds to matters included in Pompa’s report of age discrimination to St.
| Luke’s. (Doc. 57-11, PL Ex. 11, L. Pompa Memo 12/04/2018). A reasonable jury
may find Pompa’s testimony to be credible. When reviewing the overall scenario
in a light most favorable to Pompa, she has provided sufficient evidence on the
issue of whether she experienced severe or pervasive harassment from Merkert
to preclude summary judgment on the ADEA/PHRA hostile work environment
claims.
3. ADEA/PHRA Retaliation
St. Luke’s also moves for summary judgment on Pompa’s ADEA/PHRA
retaliation clains. The ADEA makes it “unlawful for an employer to discriminate
32
against any of his employees...because such individual...has opposed any
practice made unlawful” by the ADEA. 29 U.S.C. § 623(d). Similarly, the PHRA
makes it unlawful “[flor any person to discriminate in any manner against any
individual because such individual has opposed any practice forbidden by” that
statute. 43 PA. CONS. STAT. § 955(d). The court will thus address Pompa’s
retaliation claims in a combined analysis. See Daniels, 776 F.3d at 193.
Here, Pompa claims that she complained of age discrimination and then, in
retaliation, St. Luke’s suspended her and ultimately terminated her employment.
Pompa does not have direct evidence of retaliation, but rather relies upon indirect
or circumstantial evidence. Where a plaintiff relies upon indirect or circumstantial
evidence of retaliation, the court applies the three-part burden shifting framework
from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Daniels, 776 F.3d
at 193 (citing Fasold v. Justice, 409 F.3d 178, 188 (3d. Cir. 2005)).
Pursuant to that framework:
a plaintiff asserting a retaliation claim first must establish a
prima facie case by showing “(1) [that she engaged in]
protected employee activity; (2) adverse action by the
employer either after or contemporaneous with the
employee's protected activity; and (3) a causal connection
between the employee's protected activity and the
employer's adverse action.” Marra v. Phila. Hous. Auth.,
497 F.3d 286, 300 (3d Cir.2007) (quoting Fogleman v.
Mercy Hosp. Inc., 283 F.3d 561, 567-68 (3d Cir.2002)).
33
lf the plaintiff makes these showings, the burden of
production of evidence shifts to the employer to present a
legitimate, non-retaliatory reason for having taken the
adverse action. ld.
If the employer advances such a reason, the burden shifts
back to the plaintiff to demonstrate that “the employer's
proffered explanation was false, and that retaliation was
the real reason for the adverse employment action.” Id.
(quoting [Moore v. City of Philadelphia, 467 F.3d 331, 342
(3d Cir. 2006}, as amended (Sept. 13, 2006)}).
Daniels, 776 F.3d at 193 (formatting modified).
a. Pompa’s Prima Facie Retaliation Case
As for Pompa’s initial burden in this matter, St. Luke’s concedes the first
two elements of the plaintiff's prima facie case. That is, St. Luke’s does not
challenge, for the purposes of this motion, that the plaintiff engaged in protected
activity and experienced adverse action after engaging in that protected activity.
St, Luke’s argues, however, that Pompa cannot demonstrate the third element of
her prima facie burden, a causal link between her protected activity and her
termination. The court disagrees.
In advancing her retaliation claims, Pompa may demonstrate causation two
different ways: “either (1) an unusually suggestive temporal proximity between
the protected activity and the allegedly retaliatory action, or (2) a pattern of
antagonism coupled with timing to establish a causal link.” Lauren W. ex rel.
34
| Jean W.v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)(citing Krouse v. Am.
| Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997); Woodson v. Scott Paper Co.,
| 109 F.3d 913, 920-21 (3d Cir. 1997)). “In the absence of that proof the plaintiff
must show that from the ‘evidence gleaned from the record as a whole’ the trier
of the fact should infer causation.” Id. (quoting Farrell v. Planters Lifesavers Co.,
206 F.3d 271, 281 (3d Cir. 2000). Additionaily, a plaintiff alleging retaliation “has
| a lesser causal burden” at the prima facie stage and need only “produce
| evidence sufficient to raise the inference that her protected activity was the /ikely
reason for the adverse employment action.” Carvalho-Grevious v. Delaware
State Univ., 851 F.3d 249, 259 (3d Cir. 2017)(citations, quotation marks, and
brackets omitted)(emphasis in original).
Here, Pompa reported age discrimination by Merkert, her supervisor, to St.
Luke’s human resources department on November 17, 2018. St. Luke’s then
investigated. During that investigation, Merkert reported his issues with Pompa
to human resources and triggered an internal audit of Pompa’s department by St.
Luke’s compliance staff. At the request of St. Luke’s human resources
investigator, Pompa provided a more detailed complaint on December 4, 2078.
St. Luke’s investigator shared that complaint with Merkert thereafter. On
December 14, 2018, Merkert then changed a billing code regarding one of
35
Pompa’s patients. Per the plaintiff, Merkert did so without telling her. Pompa
changed it back the same day, believing it to be her error. By December 17,
2018, Merkert had discovered the change and reported Pompa to St. Luke’s
human resources department. In the following weeks, St. Luke’s suspended and
then terminated Pompa and not Merkert.
Both sides find support in their positions through this timeline. Critically,
Pompa has advanced evidence capable of raising a reasonable inference that
her protected activity prompted Merkert to engage in conduct designed to cause
St. Luke’s to take disciplinary action against the plaintiff and not him. Under the
law, a pattern of antagonism coupled with timing is sufficient to demonstrate
causation. Pompa has thus met her prima facie burden here.
b. St. Luke’s Legitimate, Non-Retaliatory Reasons
At the second step of the McDonnell Douglas framework, the burden of
production of evidence shifts to the employer to present a legitimate, non-
retaliatory reason for having taken the adverse action. Daniels, 776 F.3d at 193
(quoting Marra, 497 F.3d at 300). St. Luke’s has offered several facially
legitimate reasons for Pompa’s suspension and termination. The court refers to
the written reasons provided in St. Luke's termination letter to the plaintiff:
“Unsatisfactory work performance, refusing to follow the instructions of
36
| immediate supervisor..,.or failure to perform a job assignment, or a reasonable
request by a supervisor.” (Doc. 45-6, Def. Ex. CC, Termination Lir.). In this
litigation, St. Luke’s also advances that Pompa acted unethically regarding
medical billing through use of the G0238 billing code for 1:1 therapy. To that
| end, St. Luke’s has proffered an expert opinion indicating that reversal of G0238
| charges and repayment to CMS were appropriate measures. (Doc. 62, Report of
| P. Comoss). St. Luke’s has thus met its burden at the second step.
c. Pompa’s Pretext Case
Since St. Luke’s has advanced legitimate, non-retaliatory reasons for
Pompa’s termination, the burden shifts back to the plaintiff to demonstrate that.
St. Luke’s proffered explanation was false, and that retaliation was the real
reason for the adverse employment action. Daniels, 776 F.3d at 193 (quoting
Marra, 497 F.3d at 300). To defeat summary judgment, Pompa must produce
evidence which: “1) casts sufficient doubt upon each of the legitimate reasons
proffered by the defendant so that a factfinder could reasonably conclude that
each reason was a fabrication; or 2) allows the factfinder to infer that [retaliation]
was more likely than not a motivating or determinative cause of the adverse
employment action.” Fuentes, 32 F.3d at 762. At the summary judgment stage,
the court considers a broad array of evidence, including: 1) antagonism by the
37
employer; 2) inconsistencies in the reasons the employer gives for its adverse
| action; and 3) any other evidence suggesting that the employer had a retaliatory
| animus when taking the adverse action. Canada v. Samuel Grossi & Sons, Inc.,
49 F.4th 340, 347 & n. 44, 349 (3d Cir. 2022).
Although St. Luke’s has offered evidence that Pompa’s suspension and
termination occurred as a legitimate response to workplace insubordination and
| misconduct, Pompa has responded to the motion for summary judgment with
evidence a jury may use to reasonably conclude that Merkert and St. Luke’s
terminated the plaintiff in retaliation for her protected activity and engaged in
extensive efforts to hone and craft its defenses to then-anticipated litigation.
As for the proffered reason that Pompa acted in an insubordinate manner,
St. Luke’s maintains work rules outlining violations of certain general guidelines,
which could result in immediate termination of enployment depending upon the
seriousness and/or frequency of the offense. (Doc, 45-8, Def. Ex. DD, 0001011).
Those general guidelines include “[rjefusing to follow the instructions of an
immediate supervisor, manager, director, or other person of authority” and
“refusal or failure to perform a job assignment, or a reasonable request by a
supervisor[.]” (Id.) Those guidelines are cited in Pompa’s termination letter,
which also references Merkert’s side of the story regarding the prohibited use of
38
the G0238 billing code and his narrative regarding the plaintiff's changes to a
patient's billing on December 14, 2018.. (Doc. 45-8, Def. Ex. CC),
But a reasonable, rational jury can consider Pompa’s evidence, including
her testimony, and disbelieve any assertion that the plaintiff was insubordinate
regarding the GO238 billing code. As for any evidence that Merkert wanted to
end use of that code in August 2018, Merkert’s own testimony is to the contrary.
He testified that Pompa had “a very compelling discussion and thought process”
as to why the G0238 code might work at St. Luke’s. (Doc. 57-5, Pl. Ex. 5. W.
Merkert Dep. 54:3-55:11). He acknowledged that a physical therapy model with
1:1 therapy as implemented at Blue Mountain had potential to continue. (Id.
55:12-56:1). So, in his own words, he was “dragging [his] feet” after August
2018 regarding cessation of the G0238 code. (Id.
Merkert also testified that, from August 2018 to December 2018, he knew
that the plaintiff, Mary Fulton, and Linda Rehus were using both the G0238 and
G0239 codes. (Id. 62:3-7). He did not take any disciplinary action against Fulton
Rehus. (Id. 62:8-21). As indicated above, Merkert ultimately promoted Fulton
despite an audit reflecting that she used the G0238 code more than any other
employee during that timeframe. And Rehus retired in the spring of 2019 without
incident. (Doc. 57-3, L. Rehus Dep. 10:1-11:2).
39
Unlike with Fulton or Rehus, Merkert took steps that led to Pompa’s
suspension and termination after she reported him for age discrimination. Before
being provided with Pompa’s complaint of discrimination in November 2018,
Merkert “didn’t want to come in as the big bad wolf and reprimand[] everybody for
what they were doing[,]” regarding use of the G0238 code. (Doc. 57-5, Pl. Ex. 5,
W., Merkert Dep. 62:12-21). After Pompa accused him of age discrimination,
Merkert chose to trigger a formal internal audit of her department regarding use
of the code on November 28, 2018. (Doc. 57-14, Pl. Ex. 14, E. Witkosky Dep.
35:1-37:21, 40:13-41:9).
That brings the court to a discussion of Pompa, Fulton, and Rehus’s
treatment of a patient, LN. '* On September 5, 2018, LN’s treating physician
diagnosed her with restrictive lung disease and referred her for thirty-six (36)
sessions of pulmonary rehabilitation, three times per week. (Doc. 57-25, Pl. Ex.
25, Referral). On September 25, 2018, LN’s insurer sent her a letter regarding
that treatment. (Doc. 57-24, Pi. Ex. 24). The letter, singed by the insurer's
medical director, indicated that her treating physician requested approval for
services billed under the G0238 code and that the insurer approved such
treatment for LN. (Id.)
14 St. Luke's refers to LN by her full name repeatedly in its moving papers. The court will refer
to St. Luke’s patient by using her initials. 40
From the inception of LN’s treatment at St. Luke’s-Blue Mountain, Pompa’s
department exclusively charged the patient using the G0238 code. (Doc. 45,
SOF 122). On September 25, 2018, Mary Fulton, the department physical
therapist assessed LN and created LN’s plan of care. (Doc. 57-2, Pl. Ex. 2, M.
Fulton Dep. 34:23-35:6). That plan of care included 1:1 therapy. (id. 58:16—
61:16). Fulton’s care plan was co-signed by Dr. William Markson, a St. Luke’s
medical director. (id.} Per her testimony, Fulton treated LN on September 25,
2018, using 1:1 therapy and billed using the GO238 code. (Id. 41:6-42:16),.
Fulton also testified that she consistently treated LN with 1:1 therapy and billed
using the G0238 code because that is what LN’s insurer authorized for the period
of treatment. (Id. 53:18-54:23, 58:16-61:16). Fulton, who Merkert eventually
promoted to a supervisory role, testified:
Q. So for 36 visits, 36 sessions, based on the insurance
company's authorization, she should have been treated
with one-on-one therapy?
A. Correct.
Q. And therefore it should have been billed under G0238
for each session as set forth in the [insurer’s]
determination?
A. Correct.
(Id. 61:9-16).
Al
But Fulton experienced a medical event on November 26, 2018, and took
leave from work. (Id. 58:1-9). There is no evidence that St. Luke’s changed
Fulton’s plan of care for LN from 1:1 therapy to group therapy.
| With Fulton on leave, Pompa and Linda Rehus treated LN in December
| 2018. On December 13, 2018, Pompa treated LN. She used code G0238 and
billed for four (4) units. She entered the charge on December 13, 2018 at 1:58
PM. (Doc. 45-30, Def. Ex. Z, E. Witkosky Email 12/19/2018).
| That same day, Erin Witkosky in St. Luke’s compliance department
| discovered that the G0238 code had been billed for treatment of LN on
December 13, and she notified Merkert of the use of the code. (Doc. 45, SOF J
121). Witkosky’s email indicates:
| noticed that G0238 was billed on 12/13/18 for [LN]. |
haven't been checking December billing for other patients
since you said the GO238 was no longer being used as of
12/1/18, but | wanted to check a random one. Is it possible
for you to run a report and see if:
1. the code has been used on any other patients in
December;
2. the code can be changed before submitted to
insurance for all the December patients;
3. see who used the incorrect code and reeducate
(the 12/13 note isn’t in Epic yet).
(Doc. 45-28, Def. Ex. X, ECF p. 4)(formatting modified and emphasis added).
42
Merkert responded to Witkosky the next morning, December 14, 2018 at
7.47 AM, advising that GO238 had been used on five (5) patients.’ (Id.) He
requested that Witkosky give him a “quick call[.]” (Id.) At 9:58 AM, Witkosky
responded by email:
Per our discussion, please remove the G0238 charges for
those 5 patients in December. You can change the charge
to G0239 if a} the patient has an appropriate diagnosis (no
COPD) and b) it is NOT documented “No” to the group
session in the note. Let me know if you have any
questions.
(Id., ECF p. 3).
At 10:18 AM, Merkert forwarded the email chain to Jennifer Stehman, the
human resources director who was investigating Pompa’s complaints of age
discrimination against him. He wrote: “Please see [Witkosky’s] email message
below. This is the Pulmonary Rehab charge that [Pompa] blatantly refused to
discontinue using. | will be reversing these charges this morning.” (Id.)
At 11:29 AM, Merkert reversed the charge for LN and entered G0239, 1
unit. (Doc. 45-30, Def. Ex. Z, E. Witkosky Email 12/19/2018). At 11:40 AM,
15 |n contrast to the email, Merkert testified that the GO0238 code had been used in December
2018 for five (5) patient sessions. (Doc. 57-5, Pl. Ex. 5, W. Merkert Dep. 151:6-20), Per
Merkert: “It could have been five different people...or one or two people.” (Id.) Absent any
other evidence, a jury may take Merkert's conflicting positions and reasonably infer that the
G0238 code was used exclusively on LN at St. Luke’s-Blue Mountain in December 2018.
43
Merkert called Pompa. (Doc. 45, SOF 4 130). Per Merkert, he told Pompa to
| never use the G0238 code under any circumstances and that he was changing
ithe G0238 charges to G0239. (Doc. 45-3, Def. Ex. B, W. Merkert Dep. 180:19—
187:23).
According to Pompa, however, Merkert’s words were forward-looking
during that conversation and did not reference past treatment. (Doc. 57-1, Pl. Ex.
| 1, Pl. Dep. 158:7-159:4: see also Pl. Ex. 22, L. Pompa Memo to S. Goral
12/21/2018 (“| received a call from [Merkert] stating, ‘no matter what the staffing
is he wants to charge for Group Therapy.’ Since that time, | have been compliant
with scheduling and billing patients for group therapy sessions and not against
the directive issued by [Merkert].”)). Per Pompa, Merkert did not discuss the
correction on December 14, 2018, and did not tell the plaintiff that he changed
LN’s billing until December 19, 2018. (Doc. 57-1, Pl. Ex. 1, Pl. Dep. 159:5-160:1,
161:14-162:6).
Linda Rehus treated LN on December 14, 2018 with 1:1 therapy between
11:27 AM and 12:10 PM, or during the time that Merkert called the plaintiff. (Doc.
57-3, Pl. Ex. 3, L. Rehus Dep. 33:6-34:14). Per Rehus, no other person was in
the gym at the Palmerton campus. (Id.) Rehus also testified that Merkert did not
44
tell her to stop using the GO238 code until after Pompa was suspended by St.
Luke’s. (Id, 22:7-23).
After Rehus administered 1:1 therapy to LN, she went in to bill the patient
using the GO238 code, because “that was the established procedure for this
patient[,]” and how the department “billed this patient time and time again.” (Id.
40:6-18). Rehus observed that the most recent charge (December 13) was
entered in the system as one unit, not multiple units as GO238 charges were
billed. (Id. 42:16-43:21). According to Rehus, she called the plaintiff, who had
last treated LN. (ld. 45:1-22). Rehus testified that she told the plaintiff that LN
had only been charged one unit for the therapy administered the day before. (Id.
45:23-46:7). Per Rehus, Pompa told her that she would look into it.'° (Id.)
Based on Rehus's phone call, Pompa testified that she thought she made a
mistake in LN’s billing the day before. (Doc. 57-1, Pl. Ex. 1, Pl. Dep. 156:3-24).
She did not consider that Merkert had changed the code. (Id.) At 12:18 PM,
Pompa changed the billing for LN’s therapy on December 13 to G0238, 4 units.
(Doc. 45-30, Def. Ex. Z, E. Witkosky Email 12/19/2018). Rehus also testified that
she billed LN using the G0238 code for 1:1 therapy on December 14, 2018, but
‘6 From the evidence, the court can infer that Pompa was treating patients at the Gnaden
campus that day. 45
did not recall whether she did it that day. (Doc. 57-3, PI. Ex. 3, L. Rehus Dep.
44:6-25).
Against the backdrop of a human resources investigation into his conduct,
Merkert admitted in his deposition that he “was spying’ on the plaintiff regarding
her use of the G0238 billing code. (Doc. 45-3, Def. Ex. B; Doc. 57-5, Pi. Ex. 5,
220:21-221:21). On December 17, 2018, Merkert emailed Jennifer Stehman, in
St. Luke’s human resources department, and Erin Witkosky, in St. Luke’s
compliance department, about the billing reversals. (Doc. 45-19, Def. Ex. BB, W.
Merkert Email 12/17/2018). He accused Pompa of direct insubordination and
stated that she put St. Luke’s Medicare relationship in jeopardy. (Id.) He also
referenced Pompa’s allegations against him. (Id.) Based on these accusations,
St. Luke’s suspended and terminated Pompa.
After review of the broad array of evidence and testimony in this case, the
motion for summary judgment will be denied. Pompa has produced evidence
that a reasonable jury could use to determine that St. Luke's reasons were
fabricated.*” To the extent that Pompa did not follow Merkert’s instructions, a
17 As for assertions that Pompa acted unethically in using the G0238 code, the piaintiff has
provided testimony from Mary Fulton and Linda Rehus to support her position. Pompa has
also supplied an expert report from a medical billing expert, who opines that the services the
plaintiff provided to LN on December 13, 2018 were appropriately coded using G0238. (Doc.
57-23, R. Reier Report, p. 3). Pompa’s expert also opines that it was inappropriate for St.
Luke’s to reverse the code and change it to □□ (Id., p. 9).
jury will have to decide what those instructions actually were, when they were
provided, and the context in which they were provided, particularly after the
plaintiff reported Merkert to human resources for age discrimination. In other
words, they must determine whether Pompa’s conduct was only treated as
insubordination after the plaintiff's protected activity. In doing so, a jury will have
to compare Pompa’s conduct with Mary Fulton, who Merkert promoted, and
Linda Rehus, who experienced no adverse employment action before her
retirement. A jury must also weigh whether the above timeline favors the plaintiff
or favors St. Luke’s. They may find certain evidence innocuous or coincidental.
On the other hand, a jury may find that certain evidence highly suspicious and
determine that Merkert and St. Luke’s acted with retaliatory motives.
In Canada, the Third Circuit Court of Appeals explicitly rejected a rule of
law that “incentivizes employers to dig up reasons to fire an employee who has
engaged in protected activity, and then immunizes them from suit based upon a
subsequent fortuitous discovery of grounds for termination.” 49 F.4th at 349. The
evidence advanced by Pompa could support a conclusion that Merkert and St.
Luke’s went looking for something and/or intentionally created a situation that
would justify terminating the plaintiff once she complained of age discrimination.
Under such circumstances, summary judgment is improper. See id. at 348-49
47
(discussing Hobgood v. Illinois Gaming Bd., 731 F.3d 635, 637-46 (7th Cir.
2013)). Consequently, St. Luke’s motion for summary judgment will be denied.
Conclusion
For the reasons set forth above, St. Luke’s motion for summary judgment
(Doc. 44) will be denied. An appropriate order? llgws.
Date: MA. > Ps <
_ JUDGE JULIA K. MUNLE
| | United States District Cot
48