Petition for Writ of Certiorari — Ming Wei, Petitioner v. Pennsylvania, et al.
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APPENDIX A
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 19-1705
MING WEI,
Appellant
v.
COMMONWEALTH OF PENNSYLVANIA;
PENNSYLVANIA DEPARTMENT OF HEALTH
(PADOH); PENNSYLVANIA STATE CIVIL
SERVICE COMMISSION (SCSC); VERONICA
URDANETA IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; STEPHEN OSTROFF IN
HIS INDIVIDUAL AND OFFICIAL CAPACITY;
TIFFANY BURNHAUSER IN HER INDIVIDUAL
AND OFFICIAL CAPACITY; GODWIN OBIRI IN
HIS INDIVIDUAL AND OFFICIAL CAPACITY;
ROBERT GIALLO IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; KIM STRIZZI IN HER
INDIVIDUAL AND OFFICIAL CAPACITY; JOHN
DOES 1*5 IN THEIR INDIVIDUAL CAPACITIES
,s
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Opinion filed: March 31, 2020
On Appeal from the United States District Court
for the Middle District of Pennsylvania,
(M.D. Pa No. ll-cv-00688)
District Judge: Honorable John E. Jones, III.
SUR PETITION FOR REHEARING
OPINION OF THE COURT
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BEFORE: SMITH, Chief Judge, and MCKEE,
AMBRO, CHAGARES, JORDAN, HARDIMAN,
GREENAWAY, Jr., SHWARTZ, KRAUSE,
RESTREPO, BIBAS, PORTER, MATEY, PHIPPS,
and COWEN*, Circuit Judges
The petition for rehearing filed by appellant,
Ming Wei, in the above-captioned matter having
been submitted to the judges who participated in
the decision of this Court and to all other available
circuit judges of the Court in regular active service,
and no judge who concurred in the decision having
asked for rehearing, and a majority of the circuit
judges of the Court in regular active service who
are not disqualified not having voted for rehearing
by the Court en banc, the petition for rehearing by
the panel and the Court en banc is DENIED.
BY THE COURT,
s/ Paul B. Matey
Circuit Judge
SLC/cc: Ming Wei
Howard G. Hopkirk, Esq.
*Judge Cowen’s vote is limited to panel rehearing only
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APPENDIX B
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 19-1705
MING WEI,
Appellant
v.
COMMONWEALTH
OF
PENNSYLVANIA;
PENNSYLVANIA DEPARTMENT OF HEALTH
(PAD OH); PENNSYLVANIA STATE CIVIL
SERVICE COMMISSION (SCSC); VERONICA
URDANETA IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; STEPHEN OSTROFF IN
HIS INDIVIDUAL AND OFFICIAL CAPACITY;
TIFFANY BURNHAUSER IN HER INDIVIDUAL
AND OFFICIAL CAPACITY; GODWIN OBIRI IN
HIS INDIVIDUAL AND OFFICIAL CAPACITY;
ROBERT GIALLO IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; KIM STRIZZI IN HER
INDIVIDUAL AND OFFICIAL CAPACITY; JOHN
DOES 1-5 IN THEIR INDIVIDUAL CAPACITIES
Opinion filed: January 7, 2020
On Appeal from the United States District Court
for the Middle District of Pennsylvania,
(M.D. Pa No. ll-cv-00688)
District Judge: Honorable John E. Jones, III.
OPINION*
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Submitted Pursuant to Third Circuit LAR 34.1(a)
January 3, 2020
Before: KRAUSE, MATEY, and COWEN, Circuit
Judges.
PER CURIAM.
Ming Wei appeals the District Court's orders
granting Appellees' motions for summary
judgment and denying his motions for sanctions.
For the reasons below, we will affirm the District
Court's judgment.
The procedural history of this case and the
details of Wei's claims are well known to the
parties and need not be discussed at length. Briefly,
in 2007, Wei was terminated from his job by the
Pennsylvania Department of Health ("the
Department"). He challenged his removal before
the State Civil Service Commission ("the
Commission"). In 2008, the Commission decided
that the Department had just cause for the firing
because Wei had failed to complete an assignment.
Wei appealed the decision to the Commonwealth
Court of Pennsylvania which affirmed the
Commission's decision. Wei v. State Civil Serv.
Comm'n, 961 A.2d 254 (Pa. Commw. Ct. 2008).
In 2011, Wei filed a civil rights complaint, which he
subsequently amended, in the District Court for
the Middle District of Pennsylvania alleging, inter
alia, that he was discriminated against by the
Appellees based on his national origin, race, and
* This disposition is not an opinion of the full Court and pursuant to
I.O.P. 5.7 does not constitute binding precedent.
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disability. The Appellees moved to dismiss the
Fourth Amended Complaint. The District Court
adopted a Magistrate Judge's Report and
Recommendation and granted the motion in part
but allowed some claims to go forward. The
Appellees then filed an answer and moved for
summary judgment.
Adopting the Magistrate Judge's Report and
Recommendation, the District Court granted
summary judgment as to several claims but denied
summary judgment with respect to some claims.
The District Court noted that because of the
number of claims and lack of clarity of Wei's
pleadings, Appellees had overlooked some of his
claims. It permitted Appellees to file a second
motion for summary judgment. Appellees did so,
and a Magistrate Judge recommended that
summary judgment be granted except for four
claims. The District Court adopted the Report and
Recommendation and granted summary judgment
as to all claims except four.
As the parties were preparing for trial, the
District Court reconsidered its decision to adopt
the Magistrate Judge's Report and Recommen
dation. It invited the parties to resubmit their
objections to the portion of the Report and
Recommendation that recommended denying
Appellees' motion for summary judgment and
directed Appellees to address specific issues. The
parties did so, and the District Court granted
summary judgment on all of Wei's remaining
claims. Wei filed a timely notice of appeal. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
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Issue preclusion
Wei first argues that the District Court erred in
giving preclusive effect to the Commission's
decision that there was just cause for his removal.
Seeking to relitigate this issue, Wei devotes several
pages of his brief and reply brief to describing the
structure of his office, how it handled its workload,
and the work he was assigned. However, for the
reasons discussed below, we agree with the District
Court that the Commission's decision and findings
were entitled to preclusive effect. We exercise de
novo review over the District Court's grant of
summary judgment on the basis of issue
preclusion. Dici v. Pennsylvania. 91 F.3d 542. 547
(3d Cir. 1996). A federal court must give preclusive
effect to a state court judgment just as another
court of that state would. Migra v. Warren City Sch.
Dist. Bd. of Educ.. 465 U.S. 75. 85~87 (1984) (claim
preclusion); Allen v. McCurrv, 449 U.S. 90. 95-105
(1980) (issue preclusion). If a decision by a state
administrative agency has been reviewed by a
state court, that decision is given preclusive effect
in federal court. Edmundson v. Borough of Kennett
Square. 4 F.3d 186. 189 (3d Cir. 1993). The criteria
for issue preclusion are: (l) the issue is identical; (2)
the judgment was final and on the merits; and (3)
there was a full and fair opportunity to litigate.
See Bradley v. Pittsburgh Bd. of Educ.. 913 F.2d
1064, 1073 (3d Cir. 1990).
The Commission noted that the issues before it
were whether there was just cause for Wei's
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removal and whether the Department removed
him for discriminatory reasons. The Commission
found that the Department established that Wei
exhibited unsatisfactory work performance and
insubordination which provided just cause for his
removal. The Commission concluded that Wei had
not made a prima facie case of discrimination based
on national origin, retaliation, or a serious health
condition.
In affirming the Commission's decision, the
Commonwealth Court held that: (l) Wei was not
entitled to an interpreter! (2) the Commission did
not err in limiting the testimony regarding how
data had previously been processed! and (3) the
Commission properly found that the Department
had just cause for Wei's removal from his job due to
his insubordination and unsatisfactory work
performance. Wei, 961 A.2d at 258. The Common
wealth Court affirmed the Commission's conclu
sion that Wei was not fired based on his national
origin, as retaliation, or for his health condition.
With respect to Wei's claims regarding under the
Family Medical Leave Act ("FMLA"), it determined
that he had not shown that he had requested and
was denied leave under the FMLA but rather that
he had requested annual leave. The Common
wealth Court rejected Wei's claims that the
Department's witnesses had provided false
testimony. Id. at 260-61. Wei argues in his brief
that the issue of whether he converted the "HARS
data" was not the same issue in the Commission's
adjudication and the District Court erred in using
it to preclude many of his claims. He appears to
claim that the Commission's finding of just cause
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for his removal was based on the assignment of
converting the HARS data but that he was never
assigned to convert HARS data. Thus, he contends,
the issues are not identical. However, the
preclusive issue that the Commission decided and
Commonwealth Court affirmed was that there was
just cause for Wei's removal from his job due to his
insubordination and unsatisfactory work perfor
mance.
Wei also asserts that he was not provided a full
and fair opportunity to litigate his issues in the
state proceedings. While he claims that the
Department rejected his request for evidence, he
does not describe any specific evidence that he
needed for the hearing before the Commission. He
argues that he was denied an interpreter during
the hearing, but he does not suggest how he was
prejudiced by not having one. He does not claim
that there were any specific portions of the hearing
which he was not able to understand. He also
contends that he was not given a second
opportunity to correct the hearing record but he
does not explain how the minor typographical error
he describes caused him any prejudice.
Wei also argues that an exception to preclusion
applies^ that there have been changes in the
controlling facts which render issue preclusion
inapplicable. However, he simply repeats his
previous argument that he was not assigned to
convert the HARS data.1 The District Court did not
1 Wei claims that Appellees admit that he was never assigned
to convert the HARS data. However, he takes the statement
out of context. In response to an interrogatory from Wei that
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err in giving preclusive effect to the Commission's
decision.
Summary Judgment
Wei argues that the District Court erred in failing
to construe the evidence in the light most favorable
to him as the nonmoving party. However, in
support of this contention, he points only to one
instance in his deposition transcript where the
Appellees purportedly submitted a transcript
without Wei's changes incorporated into it. Wei
does not explain how this impacted the summary
judgment analysis.
Wei contends that the District Court failed to
provide the reason why it vacated its decision that
four claims could proceed to trial. A District Court
may reconsider a prior decision if it gives its
reasoning for reconsidering the decision and
ensures that the parties are not prejudiced by
relying on the prior decision. Williams v. Runyon.
130 F.3d 568. 573 (3d Cir. 1997). Here, the District
Court noted that, in preparing for trial, it had
reviewed the matter, and some arguments had
asked for the details of "converting HARS HIV/AIDS data
files into PA NEDSS," Appellees responded "[The Depart
ment] never asked Ming Wei to convert HARS data into PA
NEDSS. . . . Wei failed to complete the assignment given to
him of unifying into a single format file the backlog of HIV
laboratory data so that it could be evaluated, cleaned, and
uploaded into PA NEDSS with the rest of the HARS data."
App. at 221.
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given it pause. It decided to reconsider the
remaining claims before "conducting a potentially
unnecessary trial." Order, Doc. 397 at 3. The
District Court gave the parties an opportunity to
submit revised pleadings on the four remaining
issues. And when it granted summary judgment for
Appellees on those claims, it gave its reasoning.
Wei does not argue that he relied on the prior
ruling or was prejudiced. He simply states that
because the District Court did not give a reason for
reconsideration, he does not know how to appeal
that decision.
Wei argues that the District Court "cited
Defendants' false statements as the reason to
rescind the claim against Urdaneta." He appears to
challenge the District Court's conclusion that an
April 4, 2007 reprimand he received for failing to
attend a mandatory meeting was not retaliatory.
He asserts that he was never told to attend the
meeting while Veronica Urdaneta, his supervisor,
stated that she had instructed him to attend the
meeting. He also challenges the District Court's
statement that a July 2, 2007 reprimand was the
result of an inappropriate email Wei sent to his
supervisor. The District Court, however, did not
rely on any factual statements by Urdaneta in
resolving these claims. Rather, it concluded that
the reprimands were not an adverse action because
they did not result in any change to Wei's duties,
assignments, compensation or other terms of his
employment 2 . It further determined that the
2 Wei argues that shortly after the April 4, 2007 reprimand, his
assignment was changed. He claimed that on April 9, 2007, Urdaneta
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reprimands were not materially adverse because
they would not have deterred a reasonable worker
from making a charge of discrimination.
See Burlington N. & Santa Fe Rv. Co. v. White. 548
U.S. 53. 68 (2006). We agree. The reprimands
simply gave Wei the feedback that he needed to
improve his behavior.
FMLA leave
Wei also appears to challenge the District Court's
conclusion that Appellees' denial of Wei's request
to use paid annual leave in lieu of unpaid FMLA
leave was not discriminatory or retaliatory. The
District Court noted that Urdaneta denied Wei's
request to use paid annual leave because he was
not completing his work duties. In response, Wei
argues only that the work he was assigned was not
part of his job description.
The District Court also concluded that there was
no evidence that Wei notified Urdaneta that his
request for annual leave was related to the FMLA
leave he had been granted by human resources. In
support of his arguments to the contrary, Wei
points to an email dated July 2, 2007, in which he
requested to use annual leave between July 9 and
July 20. He was then informed that he was only
approved for intermittent absences under the
FMLA and would need to fill out a new Serious
Health Condition Certification for approval. He
ordered him to complete processing 600,000 records. However, in her
email, Urdaneta did not give Wei a new assignment. Rather, she simply
directed Wei to complete the assignment he had already been given.
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was informed that, without an approved Serious
Health Condition Certification, he would not be
able to use annual leave unless it was approved by
his
supervisor "subject to Management's
responsibility to maintain efficient operations." It
appears that Wei then submitted another
certification because Wei includes a document
showing that on July 6, 2007, he was granted
full-time unpaid leave under the FMLA through
July 13, 2007. The letter also noted that he was
previously granted intermittent leave under the
FMLA through August 7, 2007. App. at 447. Wei,
however, does not assert that he resubmitted any
leave request for annual leave after receiving
FMLA approval. He does not point to any request
to use annual leave in lieu of unpaid leave under
the FMLA that fell within the timing and scope of
his FMLA approvals and was denied.
Commission
After the Commission decided against him, Wei
emailed it several times and demanded that it
change its decision. On May 13, 2009, Wei visited
the Commission's legal offices. He demanded that
the Commission change its decision and punish his
coworkers for perjury. When Wei refused to leave,
the police were called, and the officers gave Wei a
defiant trespass warning. When he came back the
next day on May 14, he was arrested. Wei also
alleges that three and a half years after his
removal, in February 2011, he went to the
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Department of Health, and an attorney called the
police who stopped and frisked him.
Wei challenges the District Court's conclusion
that those persons involved in calling the police
were unaware of Wei's protected activity; thus,
their calling the police on Wei was not retaliation.
However, Wei does not point to any evidence that
any protected activity was the cause of the calls to
the police. Moreover, Wei's arrest was clearly not
retaliation for protected conduct but rather
because he violated a no trespass order.
Wei also challenges the District Court's
conclusion that the Commission was not acting as
an employment agency and could not be sued under
Title VII. Wei claims that he went to the
Commission looking for job information. However,
Appellees noted that no job information is available
at the legal office. Moreover, Wei sent an email to a
Commission attorney on the afternoon of May 13,
2009, the day before his arrest, with his summary
of what had happened that day. He stated that he
had discussed his case with the attorney and
requested that the alleged perjury by employees be
investigated. After being told to leave, Wei stated
that he asked to see some documents in his case.
Then, the police were called. Wei made no mention
of seeking job information. When he was
subsequently told that he could not visit the
Commission without prior permission, he
requested permission to visit the Commission on a
weekly basis to search for job information. He was
informed that any information he could obtain by
visiting the Commission was also available online.
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The District Court did not err in determining that
the Commission was not acting as an employment
agency for the purpose of Wei's claims.
Defamation
Wei brought claims of the denial of due process
under 42 U.S.C. § 1983 for several allegedly
defamatory statements made by Appellees. In his
brief, Wei groups the statements into two
categories. First, he argues that those statements
made before his termination were the cause of the
termination. Here, Wei is again attempting to
relitigate the facts surrounding his termination.
He appears to be arguing that any statement that
implied that he did not finish his assignment was
defamatory. However, as noted above, the
Commonwealth Court already determined that the
Department had just cause for removing Wei based
on his failure to complete his assignment.
As for the second category of statements—those
made to the EEOC and the courts after his
termination —Wei argues that these statements
damaged his reputation and caused loss of job
opportunity, income, and health. In his brief, Wei
points to only one statement as proof that his
employment opportunities were damaged. In 2016,
the Department of Health filed a form requesting
to remove Wei for consideration for employment
with the Department. It noted that Wei was
dismissed for unsatisfactory performance. App. at
507. Because Wei's removal was, in fact, for
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unsatisfactory performance, that statement was
true and not defamatory.
Default Judgment and Sanctions
Wei argues that the District Court erred in
denying his motion for default judgment because
the Appellees' counteroffer in settlement
negotiations was filed one day late. This argument
is beyond meritless. Wei's claims of fraud are again
mere attempts to relitigate the facts surrounding
his removal from his employment.
Additional claims
Wei contends that he wanted to add claims but
the District Court ignored his request. He does not
specify in what pleading he made such a request,
and we will not comb through over four hundred
pleadings to find it. Nor has he argued that justice
would require permitting him to amend his
complaint. See Fed. R. Civ. P. 15(a)(2) (after time to
amend has expired, party may amend with consent
of opposing party or leave of court, which should be
given when justice requires).
For the above reasons, as well as those set forth
by the District Court, we will affirm the District
Court's judgment.
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APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
No. Lll-cv-688
MING WEI,
Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA, et al.,
Defendants,
MEMORANDUM
March 28, 2019
JOHN E. JONES, III, District Judge.
THE BACKGROUND OF THIS MEMORANDUM
IS AS FOLLOWS:
By Order dated June 18, 2018 (Doc. 397), the
Court invited the Defendants to file renewed
objections to the portion of Chief Magistrate Judge
Susan E. Schwab's Report and Recommendation
that recommended denial of the Defendants'
motion for summary judgment (Doc. 298) with
respect to the Plaintiffs three remaining claims.
We have now received and reviewed the
Defendants' renewed objections (Docs. 402 and
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410), as well as the Plaintiffs opposition thereto.
(Doc. 407). For the reasons that follow, we shall
vacate our prior decision wherein we adopted the
Magistrate Judge's recommendation to deny the
Defendants' summary judgment motion with
respect to Plaintiffs remaining claims. Thus, we
shall enter summary judgment in favor of the
Defendants on these claims, and shall close this
case. As a corollary, we shall dismiss the parties'
pending motions in limine and shall summarily
deny the Plaintiffs seventh Motion for Sanctions
under Rule 11.
I. BACKGROUND
The Court and the parties are well familiar with
the extensive procedural and factual background of
this lengthy litigation, which was commenced by
the pro se Plaintiff in 2011. Hereinbelow we shall
address only the facts necessary to support our
decision, but shall refer the reader to the
Magistrate Judge's thorough Report and
Recommendation for a full recitation of the factual
underpinnings of this case. (Doc. 321). In short,
this employment discrimination case arises out of
Plaintiff Ming Wei's ("Plaintiff or "Wei") claims
that officials at the Pennsylvania Department of
Health ("PADOH") discriminated against him
because of his national origin, race, and his
disability. He also claims that the PADOH officials
retaliated against him because he complained
about his working conditions and that they
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subjected him to a hostile work environment. The
most recent iteration of the Plaintiffs claims are
contained in a Fourth Amended Complaint (Doc.
95), which spans 71 pages in length and contains
over 100 pages of exhibits.
As the parties are aware, as the result of
multiple rounds of pretrial motion practice, only a
few claims remain. They are l) Title VII retaliation
claims against the PADOH based on two
reprimands given to Plaintiff (April 4, 2007 and
July 2, 2007); and 2) Title VII discrimination and
retaliation claims against the PADOH and a 42
U.S.C. § 1981 retaliation claim against .individual
Defendants Urdaneta and Ostroff based on the
denial of annual leave pay for Wei's FMLA leave in
the summer of 2007.
With respect to the claims based on the denial of
annual leave pay for Wei's FMLA leave, we
adopted the Magistrate Judge's reasoning and
recommendation that summary judgment be
denied on the basis that the PADOH had failed to
set forth a legitimate, nondiscriminatory reason for
not paying Wei for the leave he was granted. (Doc.
321, p. 35). We also adopted the Magistrate Judge's
determination that the April 4 and July 2, 2007
reprimands were adverse actions, and that the
PADOH failed to provide a legitimate, non
discriminatory reason for them. These are the
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rulings that we invited the Defendants' to address
in their renewed objections.1
A. Title VII Retaliation Claims based on the
Written Reprimands
As noted above, we adopted the Magistrate
Judge's reasoning and conclusion, over the
Defendants' objection, that the reprimands were
adverse employment actions in the context of
Plaintiffs' discrimination claim, and thus we
denied the Defendants' request for summary
judgment on Wei's retaliation claim based on the
April 4 and July 2, 2007 reprimands. Upon further
reflection, however, and for the reasons that follow,
we find that these reprimands were not adverse
employment actions as a matter of law. As such the
l
Where objections to a magistrate judge's report and recommendation are
filed, the court must perform a de novo review of the contested portions of
the report. Supinksi v. United Parcel Serv., Civ. A. No. 06-0793, 2009 WL
113796, at *3 (M.D. Pa. Jan. 16, 2009) (citing Sample v. Diecks, 885 F,2d
1099, 1106 n. 3 (3d Cir. 1989): 28 U.S.C. § 636(b)(1)(c)). "In this regard,
Local Rule of Court 72.3 requires ‘written objections which ... specifically
identify the portions of the proposed findings, recommendations or report to
which objection is made and the basis for those objections.’" Id.
(citing Shields v. Astrue, Civ. A. No. 07-417, 2008 WL 4186951, at *6 (M.D.
Pa. Sept. 8, 2008). Although the standard of review is de novo, 28 U.S.C. §
636(b)(1) permits whatever reliance the district court, in the exercise of
sound discretion, chooses to place on a magistrate judge’s proposed
findings and recommendations. See United States v. Raddatz. 447 U.S.
667, 674-75 (1980); see also Matthews v. Weber. 423 U.S. 261.275
(1976): Gonev v. Clark. 749 F. 2d 5, 7 (3d Cir. 1984). 885 F.2d 1099, 1106
n, 3 (3d Cir, 1989): 28 U.S.C. § 636(b)(1)(c)). "In this regard, Local Rule of
Court 72.3 requires ‘written objections which ... specifically identify the
portions of the proposed findings, recommendations or report to which
objection is made and the basis for those objections.'" Id. (citing Shields v.
Astrue, Civ. A. No. 07-417, 2008 WL 4186951, at *6 (M.D. Pa. Sept. 8,
2008).
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Defendants are entitled to summary judgment on
the retaliation claims.
In the context of a retaliation claim, the plaintiff
"must show that a reasonable employee would have
found the challenged action materially adverse,
which in this context means it well might have
dissuaded a reasonable worker from making or
supporting a charge of discrimination." Burlington
N & Santa Fe Rv. Co. v. White, 548 U.S. 53. 68
(2006). Under this standard, "petty slights, minor
annoyances, and simple lack of good manners" are
not adverse actions because such would not deter a
reasonable worker from making or supporting a
charge of discrimination. Id. "By focusing on the
materiality of the challenged action and the
perspective of a reasonable person in the plaintiff s
position . . . this standard will screen out trivial
conduct while effectively capturing those acts that
are likely to dissuade employees from complaining
or assisting in complaints about discrimination
." Id. at 69-70. In Burlington Northern, the court
held that the plaintiff suffered a materially adverse
action that "might have dissuaded a reasonable
worker form making or supporting a charge of
discrimination" because her job duties were
substantially changed -to less desirable and less
prestigious duties and she was suspended without
pay for 37 days. Id: 69-71. The Court held that the
significance of any alleged act of retaliation must
be considered with regard to: the surrounding
context and particular circumstances set forth. Id.
at 70.
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With these jurisprudential guidelines in mind,
we review the reprimands at issue. The April 4,
2007 reprimand resulted from Wei's failure to
attend a mandatory meeting. The written
reprimand referenced Wei's absence from the
meeting, and further stated, "[tjhis action is being
taken to impress upon you the seriousness of this
violation and give you the opportunity to correct
your behavior in the future," and that "[i]f you fail
to correct this type of behavior or commit a similar
violation, you will be subject to further disciplinary
action up to and including dismissal from
employment." (Doc. 300-1 at 399). The July 2, 2007
reprimand resulted from Wei's inappropriate
behavior related to communications between Wei
and his supervisor. The reprimand referenced the
communication at issue and stated, "[p]lease be
advised that any future incidents of this nature
will result in further disciplinary action up to and
including discharge." (Doc. 300-1 at 401).
In our view, these two written reprimands do not
rise to the level of being materially adverse because
we simply cannot find that they would have
dissuaded a reasonable worker from making or
supporting a charge of discrimination. To be clear,
these reprimands did not result in any change to
Wei's duties, assignments, surrounding coworkers,
compensation or any other terms or conditions of
employment. Rather, they were a form of targeted
constructive criticism, demonstrating to Wei the
seriousness of missing a mandatory meeting and
inappropriately communicating with his super6
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visor. They essentially advised Wei to cease certain
conduct. Further, it is evident that Wei was not
dissuaded from making or supporting a charge of
discrimination by virtue of these two written
reprimands. To the contrary, Wei made almost
weekly complaints to the DEEO, which were in
addition to his many more formal complaints to the
EEOC, PHRC and the courts. (Docs. 321 at 40, 42
and 51).
Accordingly, because we find that no reasonable
jury would determine that the April 4 and July 2,
2007 written reprimands were materially adverse
and would dissuade a reasonable worker from
making or supporting a charge of discrimination,
we shall grant summary judgment in favor of the
Defendants on Wei's Title VII retaliation claim.
B. Title VII Retaliation and Discrimination Claims
and 42 U.S.C. § 1981 Claims Based on Denying
Wei Pay for his Leave
V
To summarize,2 Wei was granted unpaid FMLA
leave of eight to ten days in July or August of 2007
and claims that he should have been able to
substitute paid annual leave for this unpaid leave.
The Defendants submit that the legitimate,
nondiscriminatory reason for denying Wei pay for
2 A fulsome recitation of the lengthy factual background surrounding these
claims is set forth by Magistrate Judge Schwab at pages 29-30 of her
December 29, 2016 report. (Doc. 321).
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the leave he was granted (in the form of
substituting annual leave for the granted FMLA
leave) was operational in nature — specifically that
Defendant Urdaneta denied Wei's request to use
annual leave because Wei was not completing his
work duties. Defendants' further submit that Wei
never notified Defendant Urdaneta that his
requests to use annual leave were in any way
related to the FMLA leave that he had been
granted by human resources. The lack of evidence
on this point is critical. In our view, no reasonable
jury could find that failure to compensate Wei for
his unpaid FMLA leave absences were indicative of
discrimination when there is simply no evidence
that Dr. Urdaneta was aware that Wei had been
approved for FMLA leave by human resources or
that she was aware that the FMLA required that
paid annual leave be substituted for unpaid FMLA
leave. While it might be a failing of the
management structure of the PADOH that Wei's
supervisor was not aware of the fact that human
resources had granted FMLA leave to Wei, this
insufficiency does not rise to the level of invidious,
actionable discrimination or retaliation under Title
VII or 42 U.S.C. § 1981. As such, we shall reject the
Magistrate Judge's recommendation that summary
judgment be denied on this claim, and shall enter
judgment in favor of the Defendants.
An appropriate Order shall issue.
8
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
No. i:il-cv-688
MING WEI,
Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA, et al.,
ORDER
March 28, 2019
JOHN E. JONES, III, District Judge.
In conformity with the Memorandum issued on
today's date, it is hereby ORDERED that:
1. This Court's Order dated March 27, 2017 (Doc.
344) wherein we adopted Magistrate Judge
Schwab's Report and Recommendation (Doc. 321)
in its entirety, thereby granting in part and
denying in part the Defendants' Motion for
Summary Judgment is VACATED to the extent we
are reconsidering our ruling with respect to the
Defendants' Motion for Summary Judgment. Our
Order remains intact to the extent we denied
Plaintiffs' motions for a default judgment and for
sanctions.
2. The Report and Recommendation (Doc. 321) is
ADOPTED IN PART and REJECTED IN PART to
the following extent:
9
25a
a. The Defendants' Motion for Summary
Judgment (Doc. 298) is GRANTED in its entirety
for the reasons stated in the accompanying
Memorandum.
3. The parties motions in limine (Docs. 376, 381,
383) are DISMISSED AS MOOT.
4. The Plaintiffs' Seventh Motion for Sanctions
(Doc. 411) is SUMMARILY DENIED.
5. The Clerk of Court is directed to CLOSE the
file on this case.
s/ John E. Jones III
John E. Jones III
United States District Judge
10
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APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
No. i:il-cv-688
MING WEI,
Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA, et al.,
Defendants,
ORDER
March 27, 2017
AND NOW, upon consideration of the Report
and Recommendation of Chief United States
Magistrate Judge Susan E. Schwab (Doc. 272),
recommending that the Defendants’ Motion for
Summary Judgment be granted in part and denied
in part, and that Plaintiffs Motions for Default
Judgment and for Sanctions be denied, and noting
that both parties filed objections to portions of the
report1! which have been fully briefed, and the
1 1 Where objections to a magistrate judge’s report and
recommendation are filed, the court must perform a de novo
review of the contested portions of the report. Supinksi v.
United Parcel Serv., Civ. A. No. 06-0793, 2009 WL 113796, at
*3 (M.D. Pa. Jan. 16, 2009) (citing Sample v. Diecks, 885 F.2d
1099, 1106 n. 3 (3d Cir. 1989); 28 U.S.C. § 636(b)(1)(c)). “In
1
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Court finding Judge Schwab’s analysis to be
thorough, well-reasoned, and fully supported by
the record, and the Court farther finding both
parties’ objections to be without merit and squarely
addressed by the Magistrate Judge within her
report2 2 IT IS HEREBY ORDERED THAT:
1. The Report and Recommendation of'
Magistrate Judge Schwab (Doc. 321) is ADOPTED
in its entirety.
2. Defendants’ Motion for Summary Judgment
(Doc. 298) is GRANTED in part and DENIED in
part as follows:
a. Summary judgment is granted in favor of the
Defendants on all of Plaintiffs claims with the
exception of the following claims:
b. Plaintiffs Title VII discrimination claim
against the PADOH based on denying Plaintiff his
pay for his leave!
c. Plaintiffs Title VII retaliation claim against
the PADOH based on denying Wei pay for his
leave!
this regard, Local Rule of Court 72.3 requires ‘written
objections which . . . specifically identify the portions of the
proposed findings, recommendations or report to which
objection is made and the basis for those objections.’” Id.
(citing Shields v. Astrue, Civ. A. No. 07-417, 2008 WL
4186951, at *6 (M.D. Pa. Sept. 8, 2008).
2 None of the arguments presented by the parties in their
partial objections cause us to part company with the
recommendations contained within Magistrate Judge’s
comprehensive and thoughtful report.
2
28a
d. Plaintiffs Title VII retaliation claim against
the PADOH based on the April 4, 2007 reprimand
and the July 2, 2007 reprimand! and
e. Plaintiffs 42 U.S.C. § 1981 retaliation claim
against Defendants Urdaneta and Ostroff based on
denying Plaintiff pay for his leave.
3. Plaintiffs Motion for a Default Judgment (Doc.
290) is DENIED.
4. Plaintiffs Motions for Sanctions (Docs. 313
and 316) are DENIED.
5. This matter is REMANDED to Magistrate
Judge Schwab for further pretrial management,
including the disposition of any other pretrial
motions, and determining whether the parties will
consent to proceed to the Magistrate Judge’s
jurisdiction for trial.
s/ John E. Jones III
John E. Jones III
United States District Judge
3
^,
29a
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
No. i:il-cv-688
MING WEI,
Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA, et al.,
Defendants,
September 23, 2015
ORDER
AND NOW, upon consideration of the
comprehensive Report and Recommendation of
United States Magistrate Susan E. Schwab (Doc.
248), recommending that the Defendants’ Motion
for Summary Judgment (Doc.197) be granted in
part and denied in part; that the Plaintiffs Motion
for Summary Judgment (Doc. 201) be denied; that
the John Doe defendants be dismissed; and that
this matter be remanded to Magistrate Judge
Schwab for further pre-trial management,1 and
i
Magistrate Judge Schwab also recommends that
Defendants be permitted to file a second dispositive motion to
address the claims that remain after the issuance of this
1
30a
noting that Plaintiff filed partial objections2 (Doc.
261) to the report on September 10, 2015, and the
Court finding Judge Schwab’s analysis to be
thorough, well-reasoned, and fully supported by
the record, and the Court further finding Plaintiff s
objections to be without merit 3 and squarely
Order. As noted by the Magistrate Judge, given the sheer
number of claims in this matter, and the unclear nature of
the pro se Plaintiffs pleadings, the Defendants have
overlooked or inadequately addressed certain claims in their
instant summary judgment motion. We agree with the
Magistrate Judge that, in the interest of judicial economy and
efficiency, it is appropriate to permit the Defendants to file a
second motion for summary judgment on the remaining
claims, as set forth in the Magistrate Judge’s report, page 77, .
footnote 19.
2 Where objections to a magistrate judge’s report and
recommendation are filed, the court must perform a de novo
review of the contested portions of the report. Supinksi v.
United Parcel Serv., Civ. A. No. 06-0793, 2009 WL 113796, at
*3 (M.D. Pa. Jan. 16, 2009) (citing Sample v.Diecks, 885 F.2d
1099, 1106 n. 3 (3d Cir. 1989); 28 U.S.C. § 636(b)(1)(c)). The
court may accept, reject, or modify, in whole or in part, the
magistrate judge’s findings or recommendations. Id.
Although the standard of review is de novo, 28 U.S.C. §
636(b)(1) permits whatever reliance the district court, in the
exercise of sound discretion, chooses-to place oh a magistrate
judge’s proposed findings and recommendations. United
States v. Raddatz , 447 U.S, 667, 674-75 (1980); see also •
Mathews v. Weber, 423 U.S. 261, 275 (1976); Coney v. Clark,
749 F.2d 5, 7 (3d Cir. 1984).
3 3 The Court has reviewed the Magistrate Judge’s extremely
thorough 79-page Report and Recommendation on the
2
31a
addressed by the Magistrate Judge within her
report, IT IS HEREBY ORDERED THAT:
1. The Report and Recommendation of
Magistrate Judge Schwab (Doc.248) is ADOPTED
in its entirety.
2. The Defendants’ Motion for Summary
Judgment (Doc. 197) is GRANTED with respect to
Plaintiffs discrimination and retaliation claims
based on his termination; his hostile work
environment claims; his Title VII and § 1981
claims based upon the work assignments and
denial of additional time off the Title VII claims
against the Commission! the remaining 42 U.S.C. §
1983 claims! the 42 U.S.C. § 1985 claims! and the
remaining Rehabilitation Act Claims. The Motion
is DENIED in all other respects.
3.
Plaintiffs Motion for Summary Judgment
(Doc. 201) is DENIED.
pending cross-motions for summary judgment. Likewise, we
have considered Plaintiffs 55-page partial objections to the
Magistrate Judge’s report. We have found no errors in the
Magistrate
Judge’s
reasoning
or
her
ultimate
recommendations, and we therefore find it appropriate to
exercise our discretion to rely on the report. Further, we note
that Plaintiffs objections, in the main, express his dissension •
with th Magistrate Judge’s interpretations of the facts, but
the Plaintiff does not present us with any legally availing
reasons to depart from the Magistrate Judge’s conclusions.
3
32a
4.
The John Doe Defendants are DISMISSED
from this action and the Clerk shall terminate the
John Doe Defendants from the docket.
5.
Defendants’ are granted leave to file a
second motion for summary judgment.
6.
This matter is REMANDED to Magistrate
Judge
Schwab for all further pre-trial
management.
s/ John E. Jones III
John E. Jones III
United States District Judge
4
33a
APPENDIX F
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
No. Lll-cv-688
MING WEI,
Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA, et al.
Defendants,
June 6, 2012.
MEMORANDUM AND ORDER
JOHN E. JONES, III, District Judge.
THE BACKGROUND OF THIS ORDER IS AS
FOLLOWS:
Before the Court is the Report and Recommen
dation ("R&R") of Magistrate Judge J. Andrew
Smyser (Doc. 62) filed on March 14, 2012. Within
the R&R, the Magistrate Judge analyzes the
Defendants' Motion to Dismiss the Third Amended
Complaint (Doc. 34) and recommends that the
Motion be largely denied, but that the Motion be
granted with respect to the following claims:
Plaintiffs purported 42 U.S.C. § 1983 emotional
distress claim, Plaintiffs Pennsylvania Human
Relations Act ("PHRA") claims, and Plaintiffs §
1
34a
1983 claims of discrimination based on the
Defendants' discipline of him during his
employment and termination. Magistrate Judge
Smyser recommends that the matter be remanded
to him for further pre-trial management.
Plaintiff Ming Wei ("Plaintiff or "Wei") and the
Defendants filed limited objections to the R&R.
(Docs. 67-69). Accordingly, this matter is ripe for
our review.
I. STANDARD OF REVIEW1
When objections are filed to the report of a
magistrate judge, the district court makes a de
novo determination of those portions of the report
or specified proposed findings or recommendations
to which objections are made. 28 U.S.C. § 636(b)
(l); United States v. Raddatz. 447 U.S. 667. 674~75
(1980). The court may accept, reject, or modify, in
whole or in part, the magistrate judge's findings or
recommendations. Id. Although the standard of
review is de novo, 28 U.S.C. § 636(b)(1) permits
whatever reliance the district court, in the exercise
of sound discretion, chooses to place on a magis
trate judge's proposed findings and recommend
-ations. Raddatz. 447 U.S. at 674~75i see . also
Mathews v. Weber. 423 U.S. 261. 275 (1976)
; Gonev v. Clark. 749 F.2d 5. 7 (3d Cir, 1984).
1 Magistrate Judge Smyser set forth the standard of review for a
motion to dismiss at pages 8-11 of the R&R. Thus, in the interest
of economy, we shall not repeat the same herein.
2
35a
IL BACKGROUND
r
Plaintiff first commenced this employment
discrimination action on April 13, 2011 against the
following Defendants^ l) the Commonwealth of
Pennsylvania; 2) the Pennsylvania Department of
Health ("PADOH"); 3) the Pennsylvania State Civil
Service Commission,' 4) Veronica Urdaneta! 5)
Stephen Ostrolffi and 6) Tiffany Burnhauser. The
current operative pleading in this matter is the
third amended complaint.
Magistrate Judge Smyser sets forth the facts
giving rise to this action in great detail at pages 2
through 8 of the R&R, thus we shall only summa
rize the salient facts herein. Plaintiff, who is of
Chinese origin, worked at the PADOH from 2001
until his termination in 2007. In the context of his
employment, Plaintiff performed various types of
data analysis pertaining to HIV/AIDS cases in the
Commonwealth. Plaintiff alleges that, during his
employment, there was a double standard and
stereotypical view of employees of Chinese origin
that they should work harder than other employees
who were not of Chinese origin. Plaiiltiff claims
that when he complained about being, overloaded
with work, he was threatened he would lose his job,
was disciplined, and that the number of staff
members in his unit was decreased.
Plaintiff alleges that as a result of the excessive
work and groundless harassment by the Defen
dants, he suffered from emotional distress and
3
36a
became physically ill. Plaintiff was advised by his
medical providers to only work intermittently,
however when Plaintiff requested annual leave to
care for his health, his request was denied despite
the fact that he had accumulated 100 hours of
vacation time.
On July 23, 2007, Plaintiff filed a complaint with
the Pennsylvania Human Relations Commission
and the Equal Opportunity Commission. He was
suspended on August 24, 2007 and subsequently
fired from his employment on September 4, 2007.
Plaintiff claims that during a hearing with the
State Civil Service Commission pertaining to his
termination, he was further discriminated against
by not being appointed an interpreter. Plaintiff
also claims that his health rendered him unable to
sit for a hearing longer than two hours in length,
but that despite asserting this as a basis for a
continuance, he was denied that request.
Finally, Plaintiff claims that in May of 2009 he
went to the Civil Service office to review his case
file but was told to come back another day. Plaintiff
claims that when he returned to the office another
day, the police were called and he was stopped and
arrested. Similarly, on February 7, 2011, Plaintiff
alleges that when he went to the PADOH for a
pubic document and job information, the PADOH
called the police and falsely accused him of making
a threat. Plaintiff was again stopped, searched, and
arrested.
Plaintiffs third amended complaint contains
eighteen counts. Counts One through Four are
Title VII claims against the Commonwealth and
4
37a
the PADOH for retaliation, national origin and
racial harassment, and national origin discrimi
nation. Count Five is a Title VII claim against the
Commonwealth, the PADOH and the State Civil
Service Commission for racial discrimination.
Counts Six through Ten are 42 U.S.C. § 1983 and §
1985 claims against individual Defendants
Urdaneta, Burnhauser, Ostroff, and the Doe
Defendants. Counts Eleven through Eighteen are
PHRA claims against the individual Defendants.
III. DISCUSSION
5
In the main, Magistrate Judge Smyser
recommends that the Defendants'. Motion • to
Dismiss be denied, with three exceptions. The
claims Magistrate Judge Smyser recommends be
dismissed are as follows^ l) Count IX, labeled as a
42 U.S.C. § 1983 claim for intentional emotional
distress, because such claim is not cognizable
under the statute! 2) Plaintiffs 42 U.S.C. § 1983
claim based on Defendants' discipline of Plaintiff
during his employment and the termination of
Plaintiffs employment, because these claims are
barred by the statute of. limitations! and 3)
Plaintiffs PHRA claims, since Plaintiff has
indicated his intent not to proceed with these
claims in this Court.
As noted above, the parties have interposed
limited objections to the R&R. Plaintiff objects to
the Magistrate Judge's recommendation that some
of his 42 U.S.C. § 1983 claims be dismissed as
5
38a
barred by the statute of limitations. Defendants
object to the Magistrate Judge's recommendation
that Plaintiffs deprivation of property claim be
permitted to proceed. We shall discuss each
objection in turn.
A. Plaintiffs Objections
Magistrate Judge Smyser concluded that the
Plaintiffs 42 U.S.C. § 1983 claims related to
alleged wrongful conduct of the Defendants that
occurred prior to April 13, 2009 should be
dismissed because they fall outside of the
applicable statute of limitations.2!^ In rendering
this conclusion, Magistrate Judge Smyser rejected
Plaintiffs contention that claims based on
pre-April 13, 2009 conduct were permitted by the
continuing violation doctrine. In his objections,
Plaintiff contends that the continuing violation
doctrine applies to save these claims from
dismissal.
Under the continuing violation doctrine, "when a
defendant's conduct is part of a continuing practice,
an action is timely so long as the last act evidencing
the continuing practice falls within the limitations
period; in such an instance, the court will grant
relief for the earlier related acts that would other2 The action was filed on April 13, 2011. A two-year statute of
limitations is applied to 42 U.S.C. § 1983 claims in Pennsylvania
federal courts. O'Connor v. City of Newark. 440 F. 3d 125, 126
(3d Cir. 20061.
6
39a
p
wise be time barred. Cowell v. Palmer Two., 263 F.
3d 286. 292 (3d Cir. 2001) (quoting Brenner v.
Local 514. United Bhd. of Carpenters and Joiners
ofAm.. 927 F. 2d 1283 (3d Cir. 1991)). To achieve
the protection of the continuing violation doctrine,
a plaintiff must show that the defendant's conduct
is part of a continuing practice and is more than
the occurrence of isolated or sporadic acts. Rush v.
Scott Speciality Gases. Inc.. 113 F. 3d 476. 481 (3d
Cir. 1997).
Plaintiff contends that the discipline that
occurred during his employment and his termina*
tion in 2007 was related to the 2011 incident at the
PADOH (when Plaintiff was stopped, searched and
arrested), and thus the continuing violation
doctrine saves the claims based on earlier conduct
from being time'barred. We disagree. The Plaintiff
has not alleged a clear factual connection between
his employment discipline and termination in 2007
to an incident at the PADOH which occurred
nearly four years later in 2011 to support the
operation of the continuing violation doctrine.
Thus, we shall adopt the Magistrate Judge's
recommendation on this point, noting as we do that
we are not dismissing the Plaintiffs hostile work
environment or conspiracy claims brought
pursuant to 42 U.S.C. § 1983.
B. Defendants' Objection
Next we turn to the Defendants' contention that
Plaintiffs due process/deprivation of property
7
hr
40a
claim must be dismissed. In the context of this
case, Plaintiff alleges that the Defendants failed to
return all of his property following his termination.
The touchstone for this claim is whether or not the
Plaintiff had an adequate post-deprivation
remedial process available to him for the return of
his property. See Hudson v. Palmer. 468 U.S. 517.
533 (1984).
Defendants contend that state law provides
adequate process to the Plaintiff through an action
in state court for conversion or replevin. We agree.
It is well-established that § 1983 claims for
deprivation of property without due process are not
cognizable when a state's post-deprivation
remedies are adequate to protect a plaintiffs
procedural due process rights. Taylor v. Naylor
, 2006 U.S. Dist. LEXIS 27322, *9 (W.D. Pa. 2006).
In Pennsylvania, district courts have recognized
that Pennsylvania provides
an adequate
post-deprivation
remedy
for
unauthorized
deprivations of property in the form of actions for
replevin and conversion. See id.', see also Marsh v.
Ladd, 2004 WL 2441088, *6‘7 (E.D. Pa. 2004).
Accordingly, we agree with the Defendants that
Plaintiff's 42 U.S.C. § 1983 claim for deprivation of
property without due process must be dismissed
because Pennsylvania provides for an adequate
post-deprivation remedy. Thus, we shall reject the
Magistrate Judge's recommendation that the
Motion to Dismiss be denied with respect to this
claim.
C. Plaintiffs Request to Further Amend Complaint
8
42a
b. The Defendants' Motion to Dismiss (Doc. 34)
is DENIED in all other respects.
2. This matter is REMANDED to Magistrate
Judge Smyser for further pre-trial management.
s/ John E. Jones III
John E. Jones III
United States District Judge
y
10
▼
Case l:ll-cv-00688-JEJ Document 351 Filed 12/05/17 Page 1 of 3
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL NO: Lll-CV-00688
MING WEI,
Plaintiff
(Judge Jones)
v.
(Chief Magistrate Judge Schwab)
COMMONWEALTH OF
PENNSYLVANIA, et al.,
Defendants
REPORT AND RECOMMENDATION
In this employment-discrimination case, the plaintiff, Ming Wei, who is of
Chinese origin, claims that the defendants discriminated against him because of his
national origin, his race, and his disability. He also claims that they retaliated
against him because he complained about his working conditions and that they
subjected him to a hostile-work environment. The Court dismissed many of Wei’s
claims, and it granted summary judgment to the defendants as to many others. The
only remaining claims are: 1) the Title VII discrimination claim against the
PADOH based on denying Wei pay for his leave; (2) the Title VII retaliation claim
against the PADOH based on denying Wei pay for his leave; (3) the Title VII
retaliation claim against the PADOH based on the April 4, 2007, reprimand and the
July 2, 2007, reprimand; and (4) the 42 U.S.C. §1981 retaliation claim against
defendants Urdaneta and Ostroff based on denying Wei pay for his leave.
Case l:ll-cv-00688-JEJ Document 351 Filed 12/05/17 Page 2 of 3
On Mach 27, 2017, Judge Jones granted in part and denied in part the
defendants’ second motion for summary judgment, and he remanded the case to
the undersigned “for further pretrial management, including the disposition of any
other pretrial motions, and determining whether the parties will consent to proceed
to the Magistrate Judge’s jurisdiction for trial.” Doc. 334 at 3. The parties
subsequently elected not to consent to proceed before a magistrate judge. See Doc.
342. And by an Order dated November 28, 2017, we denied two motions for
sanctions filed by Wei. See Doc. 348.
Wei’s motion for reconsideration of Judge Jones’s Order of March 27, 2017,
is pending. See Doc. 337. Because that motion seeks reconsideration of an Order
of Judge Jones, we will not address that motion unless otherwise directed. Also
pending is Wei’s appeal to Judge Jones of the Order of November 28, 2017. See
Doc. 349. Again, since the appeal is directed to Judge Jones, we will not address it
unless directed to do so.
Given that the parties do not consent to proceed before a magistrate judge
and there is no further pretrial management for the undersigned to conduct, we
recommend that after disposition of Wei’s motion for reconsideration and appeal
of the Order of November 28, 2017, the case be listed for trial on the remaining
claims.
2
Case l:ll-cv-00688-JEJ Document 351 Filed 12/05/17 Page 3 of 3
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge’s proposed findings,
recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the
disposition of a prisoner case or a habeas corpus petition within
fourteen (14) days after being served with a copy thereof. Such party
shall file with the clerk of court, and serve on the magistrate judge and
all parties, written objections which shall specifically identify the
portions of the proposed findings, recommendations or report to
which objection is made and the basis for such objections. The
briefing requirements set forth in Local Rule 72.2 shall apply. A
judge shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made and may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.
The judge, however, need conduct a new hearing only in his or her
discretion or where required by law, and may consider the record
developed before the magistrate judge, making his or her own
determination on the basis of that record. The judge may also receive
further evidence, recall witnesses or recommit the matter to the
magistrate judge with instructions.
Submitted this 5th day of December, 2017.
S/Susan E. Schwab
Susan E. Schwab
Chief United States Magistrate Judge
3
Additional material
from this filing is
available in the
Clerk's Office.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.