Auman, S. v. Family Planning Plus ( 2016 )

J-S05018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHELLY AUMAN, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
FAMILY PLANNING PLUS,
Appellee No. 582 MDA 2015
Appeal from the Order Entered March 3, 2015
In the Court of Common Pleas of Union County
Civil Division at No(s): 13-0144
BEFORE: BENDER, P.J.E., SHOGAN, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 22, 2016
Appellant, Shelly Auman, appeals from the order granting Appellee,
Family Planning Plus (“FPP”), a nonprofit corporation providing reproductive
health services, summary judgment on March 3, 2015. We affirm.
Appellant filed a complaint on March 15, 2013, raising a claim under
the Pennsylvania Whistleblower Law1 (“the Law”), in count one and alleging
wrongful discharge in count two. Complaint, 3/15/13, at 6–7. Appellant
worked at FPP from December 2007 until January 29, 2013. Id. at 3, ¶ 11.
In support of her claim under the Law in her complaint, Appellant asserted
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §§ 1421–1428.
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that prior to her discharge, she “made a good faith report of waste and/or
fraud committed by [FPP] and was discharged in reprisal for that report.”
Id. at 6, ¶ 45.
The Whistleblower Law provides a civil cause of action to employees
for violations of its provisions. “It is chiefly a remedial measure” whose
purpose is to compel compliance with the law “by protecting those who
inform authorities of wrongdoing.” Bensinger v. University of Pittsburgh
Medical Center, 98 A.3d 672, 677 (Pa. Super. 2014). The trial court
summarized Appellant’s Whistleblower claim as follows:
The Whistleblower claim arises from allegations of separate
instances of improper practices and events at Family Planning
Plus “FPP”: 1) Listing Dr. Levine as the medical director in billing
software when he was no longer licensed to practice medicine in
Pennsylvania; 2) Improperly billing Medical Assistance and the
Select Plan Program for office visits when patients/clients were
actually coming into the center to pick up prescriptions; 3)
Improperly billing for “free” samples of a contraceptive device
(“NuvaRing”); 4) Improperly billing a private insurance carrier
for a “free” sexually transmitted disease screening program; and
5) Placing a charge on another patient’s account to cover the
crediting of the account of another patient who had overpaid for
services.
Trial Court Opinion, 3/3/15, at 4.
Following the filing of the complaint, FPP filed an answer and new
matter on May 30, 2013, and Appellant filed her reply to new matter on June
7, 2013. After the close of pleadings and discovery, FPP filed a motion for
summary judgment on December 31, 2014, asserting that Appellant had not
produced reports of wrongdoing and could not establish a causal connection
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between any such reports and her termination. Motion for Summary
Judgment, 12/31/14, at 8, ¶ 57. Appellant filed an answer to the motion on
February 5, 2015. The trial court granted FPP’s motion for summary
judgment on March 3, 2015, and dismissed the case. Appellant filed a
timely appeal to this Court on March 31, 2015. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant raises the following issue on appeal:
1. Did the lower [c]ourt err in granting [FPP’s] motion for
summary judgment on [Appellant’s] Wrongful Discharge and
Whistleblower Act claims?
Appellant’s Brief at 5.2
We exercise plenary review in an appeal from an order granting
summary judgment. Matharu v. Muir, 86 A.3d 250, 255 (Pa. Super. 2014)
(en banc). Summary judgment is appropriate where there is no genuine
issue of material fact, and the moving party is entitled to relief as a matter
of law. Id. (citing Pa.R.C.P. 1035.2). An appellate court may reverse a
grant of summary judgment only if there has been an error of law or an
abuse of discretion. Kennedy v. Robert Morris Univ., ___ A.3d ___, 2016
____________________________________________
2
“The statement of the questions involved must state concisely the issues
to be resolved, expressed in the terms and circumstances of the case but
without unnecessary detail.” Pa.R.A.P. 2116(a). While the statement of the
issue lacked necessary detail and should have been divided into two
questions, the argument section of Appellant’s brief is compliant with our
appellate rules. Because our appellate review is not hampered, we shall
address Appellant’s issue as two separate questions involving the two
separate counts of the complaint, beginning with the Whistleblower count.
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PA Super 16 (Pa. Super. filed January 29, 2016). “[W]e will view the record
in the light most favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved against the
moving party.” Matharu, 86 A.3d at 255.
When a motion for summary judgment is premised on the contention
that the party bearing the burden of proof at trial cannot produce sufficient
facts to establish an aspect of her case necessary to carry her burden, as
here, the non-moving party must produce evidence sufficient to establish or
contest a material aspect of the case. Rohrer v. Pope, 918 A.2d 122, 127–
128 (Pa. Super. 2007). Failure to do so entitles the moving party to
judgment as a matter of law. Id.The Whistleblower Law affords a remedy for victims of retaliatory
actions by employers. 43 P.S. § 1423, Protection of employees.3 In
pertinent part, the Law provides as follows:
____________________________________________
3
The Law, however, only protects “employees” who render services for a
“public body.” 43 P.S. § 1422. The term “public body” is defined, in
relevant part, as “[a]ny other body which is created by Commonwealth or
political subdivision authority or which is funded in any amount by or
through Commonwealth or political subdivision authority or a member or
employee of that body.” Id. (emphasis added). We note that while the
complaint asserted that FPP is a public body within the meaning of the
statute because it receives public funding through the Commonwealth of
Pennsylvania or a political subdivision thereof, Complaint, 3/15/13, at 6, ¶
44, as evidenced by statements on FPP’s website, id. at ¶ 10, the
substantiating documentation, Exhibit A, is not attached to the complaint as
is represented therein. Id. Because there is no issue raised concerning the
Law’s applicability, we merely note this insufficiency of the certified record.
(Footnote Continued Next Page)
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(a) Persons not to be discharged.--No employer may
discharge, threaten or otherwise discriminate or retaliate against
an employee regarding the employee’s compensation, terms,
conditions, location or privileges of employment because the
employee or a person acting on behalf of the employee makes a
good faith report or is about to report, verbally or in writing, to
the employer or appropriate authority an instance of wrongdoing
or waste by a public body or an instance of waste by any other
employer as defined in this act.
43 P.S. § 1423(a). Appellant maintains that she has an action against FPP
pursuant to 43 P.S. § 1424, Remedies, which provides as follows:
(a) Civil action.--A person who alleges a violation of this act
may bring a civil action in a court of competent jurisdiction for
appropriate injunctive relief or damages, or both, within 180
days after the occurrence of the alleged violation.
43 P.S. § 1424(a).
“To prove a cause of action for wrongful discharge under the
Whistleblower Law, the plaintiff must show both a protected report of
wrongdoing or waste and a causal connection between that report and the
discharge.” Evans v. Thomas Jefferson Univ., 81 A.3d 1062, 1064 (Pa.
Cmwlth. 2013) (citing O’Rourke II v. Commonwealth, 778 A.2d 1194,
1200 (Pa. 2001)).
The causal connection that the Whistleblower Law requires
must be demonstrated “by concrete facts or surrounding
circumstances that the report of wrongdoing or waste led to the
plaintiff's dismissal, such as that there was specific direction or
_______________________
(Footnote Continued)
We note, as well, that we have rejected an attempt to extend the
Whistleblower Law to cover private employees. Krajsa v. Keypunch, Inc.,
622 A.2d 355, 360 (Pa. Super. 1993) (“We are not prepared to expand the
coverage of the [Whistleblower Law] into the private arena.”).
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information received not to file the report or that there would be
adverse consequences because the report was filed.”
[Golaschevsky v. Department of Environmental Protection,
720 A.2d 757, 759 (1998)] (quoting [Gray v. Hafer, 651 A.2d
221, 225 (Pa. Cmwlth. 1994]); see also Sea v. Seif, 831 A.2d
1288, 1293 n.5 (Pa. Cmwlth. 2003). . . . The burden shifts to the
defendant to show a separate and legitimate reason for its
actions only where plaintiff has satisfied the threshold showing of
a causal connection. O’Rourke, 566 Pa. at 171–72, 778 A.2d at
1200. “Vague and inconclusive circumstantial evidence” is
insufficient to satisfy that threshold burden to show a causal
connection and shift the burden to the defendant to justify its
actions. Golaschevsky, 554 Pa. at 163, 720 A.2d at 759; Sea,
831 A.2d at 1293 n.5.
Evans, 81 A.3d at 1070. Here, the evidence is insufficient to prove the
essential elements of a Whistleblower Law cause of action.
The trial court summarized Appellant’s observations and basis for her
Whistleblower claim as follows:
Dr. Mickey Levine had served as the medical director for FPP.
Dr. Levine had planned to retire effective December 31, 2012
and would no longer maintain an active medical license. Dr.
Glenn Sherman assumed the duties of medical director effective
November 1, 2012. See, Exhibit “B” attached to [FPP’s] Motion
for Summary Judgment. While performing her clerical duties in
January 2013, [Appellant] observed that Dr. Levine’s name
appeared as medical director of the center on billing software
notwithstanding the fact that he was no longer serving in this
capacity and supposedly no longer held an active license to
practice medicine. Upon seeing Dr. Levine’s name, [Appellant]
asked a co-worker “is this legal?” See, Deposition of Shelly
Auman, [Appellant’s] Response to Summary Judgment Motion,
Appendix, Exhibit “A” page 16.
* * *
[Appellant’s] second allegation of improprieties at FPP
which forms the basis of her Whistleblower claim stems from
supposed improper billings of Medical Assistance and Select Plan
for office visits.
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* * *
[Appellant’s] third allegation of wrongdoing which forms
the basis of her Whistleblower claim concerns billing Medical
Assistance and Select Plan for free samples of NuvaRing—a
contraceptive device.
* * *
[Appellant’s] fourth allegation of wrongdoing and improper
practices at FPP involve billing private insurance carriers—Blue
Cross and Blue Shield—for a “free” STD program.
* * *
The final allegation of wrongdoing at FPP averred in
support of [Appellant’s] Whistleblower claim involves an
overcharge to a patient at the Selinsgrove clinic.2 From what we
glean from the depositions submitted, a patient was overcharged
for services. This overcharge was discovered and [as] a result
FPP refunded the overcharge to the patient per the patient’s
instruction by crediting her credit card. The allegation is that
FPP’s Executive Director, Peggy Moser, instructed the staff to put
the same charge on some other account—the inference being
that by overcharging another patient, FPP would recover the
dollar amount it had credited to the initial patient who had been
overcharged originally.
2
[Appellant] has averred that the overcharge
involved amounted to $69.00. The FPP employees
deposed testified consistently that the correct dollar
amount involved is $65.00.
Trial Court Opinion, 3/3/15, at 4–11.
Appellant maintains that she made out a prima facie case for
retaliatory discharge under the Law. Appellant’s Brief at 13. She argues
that prior to her discharge, she made a good-faith report of wrongdoing and
“was discharged in reprisal for that report.” Complaint, 3/15/13, at 6, ¶ 45.
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The evidence in support of her claim was that she discussed all of her
concerns about her observations at FPP with a co-worker, Jean Flournoy, but
no one else at FPP. Appellant’s Deposition, 8/13/14, at 15, 18, 20, 22, 24.
Moreover, Appellant testified that she had no knowledge that Ms. Flournoy
discussed any of these issues with anyone else at FPP. Id. at 19, 20. While
Appellant contends that Ms. Flournoy “was, for all intents and purposes, a
‘supervisor’ despite [FPP’s] pleas to the contrary,” Appellant’s Brief at 13,
this assertion is belied by the record. Appellant herself acknowledged and
admitted that Ms. Flournoy did not have “supervisory duties over [her].”
Appellant’s Deposition, 8/13/14, at 16. At her deposition, Ms. Flournoy
testified that she did not recall Appellant mention any of the alleged acts of
wrongdoing and did not recall telling anyone else about those issues.
Flournoy Deposition, 9/22/14, at 26–27. Appellant also admitted that she
never made any written inquiry or complaint regarding the alleged issues of
wrongdoing. Appellant’s Deposition, 8/13/14, at 20, 22.
Our review of the record convinces us that the trial court correctly
determined that Appellant could not prove the essential elements of her
Whistleblower Law claim. There is no evidence that Appellant reported
wrongdoings by FPP, either verbally or in writing. There is clear evidence,
however, that FPP terminated Appellant for issues regarding slamming
doors, taking excessive smoking breaks, using her mobile telephone during
work hours, displaying a negative attitude, and failing to accept constructive
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criticism. Motion for Summary Judgment, 12/31/14, at 6 ¶ 42; Exhibit G.
Moreover, FPP disciplined Appellant on three prior occasions for refusing to
follow directions and displaying an inability to work with co-workers. Id. at
6 ¶ 43; Exhibits H, I, and J. We rely on the trial court’s explanation in its
opinion granting summary judgment, as explained infra.
Appellant also urges us to find that the public policy exception to the
general principles of at-will employment applies to her. Complaint, 3/15/13,
at 7, ¶ 49; Appellant’s Brief at 18. Pennsylvania does not recognize a
common law action for wrongful termination of at-will employment.
Weaver v. Harpster, 975 A.2d 555, 562 (Pa. 2009). As an at-will
employee, Appellant “may be terminated at any time, for any reason or for
no reason.” Stumpp v. Stroudsburg Mun. Auth., 658 A.2d 333, 335 (Pa.
1995). An employee may bring a cause of action for a termination of that
relationship only in the most limited circumstances, “where the termination
violates a clear mandate of public policy.” Roman v. McGuire Memorial,
127 A.3d 26, 32 (Pa. Super. 2015) (quoting McLaughlin v.
Gastrointestinal Specialists, Inc., 750 A.2d 283, 287 (Pa. 2000)).
Appellant claims she was wrongfully discharged in retaliation for reporting
alleged fraud in billing practices by FPP; thus, she argues that the public
policy exception to the employment at-will doctrine applies. Complaint,
3/15/13, at 7, ¶ 49; Appellant’s Brief at 18–19.
The trial court determined:
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We will also grant [FPP] the same relief and grant
summary judgment in favor of [FPP] as to Count II, as well,
sounding in Wrongful Discharge. Count II of the Complaint
incorporates by reference the allegations averred in Count I.
Count II does not aver any factual allegations exclusive of the
allegations pleaded in the “Whistleblower” count of the
Complaint. Paragraphs 50 and 51 of the Complaint simply recite
language from case authority stating the exceptions to the “at
will” employment doctrine. Clearly, Count II of the Complaint is
based solely on the allegations averred in Count I. Since we
have concluded that [Appellant] has not met her evidentiary
burden to survive summary judgment as to Count I, it follows
that we must reach the same conclusion regarding Count II of
the Complaint. Therefore, we will grant summary judgment as
to Count II as well.
Trial Court Opinion, 3/3/15, at 19. We agree that Appellant cannot avail
herself of the public policy exception.
Because the trial court correctly concluded that Appellant could not
prove the essential elements of her Whistleblower Law claim or cause of
action for wrongful discharge, we affirm the order granting summary
judgment, and we do so in reliance on the thorough opinion of the Honorable
Michael H. Sholley, filed March 3, 2015.4
____________________________________________
4
The parties are directed to attach a copy of the trial court’s opinion of
March 3, 2015, to any future filings in this matter.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2016
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SHELLY AUMAN, IN THE COURT OF COMMON PLEAS
Plaintiff OF THE 17TH JUDICIAL DISTRICT
OF PENNSYLVANIA
UNION COUNTY BRANCH
v.
CIVIL ACTION - LAW
/
FAMILY PLANNING PLUS,
Defendant NO 13-0144
OPINION
SHOLLEY, J. - March 3, 2015
Plaintiff has commenced this action in which she pleads a violation of
Pennsylvania's Whistleblower Law [43 P.S. § 1421, et seq.] and a cause of action
sounding in Wrongful Discharge.1 Plaintiff avers that she was terminated because she
"tried to report illegal activity conducted by Defendant and its agents." [See, Complaint,
Paragraph 41}. Regarding her "Wrongful Discharge" claim, Plaintiff avers her discharge
" ... constitutes a public policy violation" and that she was discharged " ... for participating
in conduct required by law, refusing to perform acts prohibited by law and engaging in
conduct she was permitted to engage in under the law.. " [See, Complaint, Paragraphs
49, 51].
1
We note at the onset of our discussion herein that Plaintiff demands a jury trial. Our Superior Court has held
that " ... there is no right to a jury trial under the Pennsylvania Constitution for a claim brought pursuant to our
Commonwealth's Whistleblower Law." Bensinger v. University of Pittsburgh Medical Center, 98 A.3d 672, 682
(Pa.Super.2014).
1
. '
,. '
Defendant has filed a Motion for Summary Judgment requesting that we dismiss
both Counts in the Complaint averring, inter alia, " ... Plaintiff has failed to produce
evidence of facts essential to her causes of action ... " After reviewing the evidentiary
record submitted by both sides, we must agree. We will grant Defendant's summary
judgment motion and will dismiss the Complaint with prejudice.
"After the relevant pleadings are closed, but within such time as not to
unreasonably delay trial, any party may move for summary judgment in whole or in part
as a matter of law... if, after the completion of discovery relevant to the motion,... an
adverse party who will bear the burden of proof at trial has failed to produce evidence of
facts essential to the cause of action ... which in a jury trial would require the issues to be
submitted to a jury." 42 Pa.R.C.P. No.1035.2(2). "When a motion for summary
judgment is based on insufficient evidence to support the factual basis for the cause of
action ... , the non-moving party must come forward with sufficient evidence essential to
the cause of action. The evidence adduced by the non-moving party must be of such a
quality that a jury could return a favorable verdict to the non-moving party on the issue
or issues challenged by a summary judgment request." lnfoSAGE, Inc. v. Mellon
Ventures, L.P., 896 A.2d 616, 625 (Pa.Super.2006) (citations omitted) (emphasis in
original).
"Allowing non-moving parties to avoid summary judgment where they have no
evidence to support an issue on which they bear the burden of proof runs contrary to
the spirit of Pennsylvania Rules of Civil Procedure 1035.1-.5... [T]he mission of
summary judgment procedure is to pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for a trial ... Forcing parties to go to trial on a
2
meritless claim under the guise of effectuating the summary judgment rule is a
perversion of that rule ... [AJ non-moving party must adduce sufficient evidence on an
issue essential to [herJ case and on which [she] bears the burden of proof such that a
[factfinder] could return a verdict in [her] favor." Ertel v. Patriot-News Co., 674 A.2d
1038, 1042 (Pa.1996).
Certainly, we recognize that in granting summary judgment in favor of Defendant
and against Plaintiff, we must conclude that the record lacks sufficient factual evidence
to make out a prima facie cause of action such that there is no issue to be submitted to
a factfinder. Lackner v. Glosser, 892 A.2d 21 (Pa.Super.2006). "Summary judgment
should be entered only in those cases in which it is clear and free from doubt that the
moving party is entitled to judgment as a matter of law." Bullman v. Giuntoli, 761 A.2d
566, 569 (Pa.Super.2000). "When there is evidence that would allow a jury to find in the
non-moving party's favor, summary judgment should be denied and the case should
proceed to trial." Porter v. Joy Realty, Inc., 872 A.2d 846, 848-49 (Pa.Super.2005).
We note that a substantial portion of the record submitted by the parties consists
of deposition testimony. ''The general rule flowing from Nanty-Glo v. American Surety
Co., 309 Pa. 236, 163 A. 523 (Pa. 1932) is that summary judgment may not be had
where the moving party relies exclusively upon oral testimony, either through testimonial
affidavits or deposition testimony, to establish the absence of a genuine issue of
material fact. Where the moving party supports its motion for summary judgment by
using the admissions of the opposing party, however, even though they are testimonial,
Nanty-Glo does not forbid the entry of summary judgment. In such a situation, the court
may grant the motion without determining the credibility of testimony, for it is an
3
'unconditional surrender' by the opposing party, to which [she] must be held." Bowe v.
Allied Signal, Inc., 806 A.2d 435, 440 (Pa.Super.2002).
With this legal authority in mind, we turn to Plaintiff's allegations and the
evidentiary record before the Court.
Violation of Whistleblower Law
Plaintiff alleges that "[p]rior to her discharge, Plaintiff made a good faith report of
waste and/or fraud committed by Defendant and was discharged in reprisal for that
report." [Complaint, Paragraph 45]. The Whistleblower claim arises from allegations of
separate instances of improper practices and events at Family Planning Plus ["FPP"]:
1) Listing Dr. Levine as the medical director in billing software when he was no longer
licensed to practice medicine in Pennsylvania; 2) Improperly billing Medical Assistance
and the Select Plan Program for office visits when patients/clients were actually coming
into the center to pick up prescriptions; 3) Improperly billing for "free" samples of a
contraceptive device ("NuvaRing"); 4) Improperly billing a private insurance carrier for a
"free" sexually transmitted disease screening program; and 5) Placing a charge on
another patient's account to cover the crediting of the account of another patient who
had overpaid for services.
We summarize the "Dr. Levine incident" as follows. Dr. Mickey Levine had
served as the medical director for FPP. Dr. Levine had planned to retire effective
December 31, 2012 and would no longer maintain an active medical license. Dr. Glenn
Sherman assumed the duties of medical director effective November 1, 2012. [See,
Exhibit "B" attached to Defendant's Motion for Summary Judgment]. While performing
her clerical duties in January 2013, Plaintiff observed that Dr. Levine's name appeared
4
as medical director of the center on billing software notwithstanding the fact that he was
no longer serving in this capacity and supposedly no longer held an active license to
practice medicine. Upon seeing Dr. Levine's name, Plaintiff asked a co-worker "is this
legal?" {See, Deposition of Shelly Auman, Plaintiff's Response to Summary Judgment
Motion, Appendix, Exhibit "A" page 16]. We reproduce below pertinent excerpts from
Ms. Auman's deposition in which she is questioned by defense counsel.
Q: Now I would like to get into the allegations of your complaint.. .you
· generally complain that Dr. Levine-am I pronounclnq that correct?
A: Doctor Levine, yes.
Q: That Dr. Levine was still listed as medical director on billing software.
A: Yes.
Q: Do you recall those allegations?
A: Yes.
Q: Can you can [sic] explain the situation and why that was a problem for
you?
A: I was-I worked front desk. I was doing the billing, and in January Dr.
Levine's name was still coming up in the software and I questioned how
we could do that because his license had expired in December.
Q: Now, was Dr. Levine seeing any patients at that time?
A: I don't know. Not at our office. He was medical director.
Q: So I'm trying to pin down what our complaint was. Was your complaint
that Dr. Levine was seeing patients while he didn't have a license or that
Dr. Levine's name happened to be in the software as of January 1, 2013?
A: In the software .....
5
...
Q: So from your perspective what is the problem with having Dr. Levine's
name being included in the billing software?
A: His license wasn't valid. How could we bill with his name on there?
That's what I was asking.
'
Q: Were you aware as of January 1, 2013 that Dr. Sherman was going to be . ii
coming on as the new medical director? 'I
A: Yes, I was aware .... ·l
:I
Q: And were you aware at the time, meaning January 1st 2013, that Dr. !
Sherman had a medical license?
I
A: I believe so.
I
Q: Now, you indicated in your complaint that you brought this issue to
someone's attention at Family Planning Plus.
A: Yes. I
Q: Do you recall who that was? I
A: I know for sure I had discussed this with Jean Flournoy.
Q: And who is Jean Flournoy?
A: She was a coworker.
Q: Do you recall what her position is or was?
A: I believe it was clinician's assistant. ' f
:i
Q: Was she above you in the hierarchy of employees at Family Planning Plus
or was she on the same level? '. l
;i
A: She had more seniority. She had been there since, I don't know, the
beginning: She was there for a very long time.
Q: Did she have any supervisory duties over you?
A: No.
Q: Did you bring the issue of Dr. Levine's license to anybody else's
attention at Family Planning Plus?
;f I
6
. {
j
J
.
iI
.I J
, I
A: No ....
.
i
;
Q: Do you recall when you brought this issue to Ms. Flournoy's attention? • j
i
. i
A: .... I know in January when I sat down at the front desk and started up .i
the billing and Dr. Levine's name was still on there I said, is 'this
legal? That's all I did was ask questions.
Q: And who did you ask those questions of? . I
A: Jean. She trained me. :I
.. i!
Q: Did you make any written inquiry as to Dr. Levine's license? · 1
!
A: No, sir .... :l
Q: Do you have any specific knowledge that [Jean Flournoy] spoke to
;I
I I'
anybody about this particular issue? '
: f
A: No sir, I do not. . I
. I
Q: And you didn't speak to anybody else about this issue? !
. i
i
A: Not that I can recall. :I
:I
' i
[Auman Deposition, pp. 12-17] (emphasis supplied}. . I
. I
Plaintiff's second allegation of improprieties at FPP which forms the basis of her ; I
Whistleblower claim stems from supposed improper billings of Medical Assistance .and
:I
Select Plan for office visits. Again we have reproduced Ms. Auman's deposition :I
testimony relevant to this allegation.
,l
l
Q: Can you tell me or explain that situation to me? :I
A: I don't recall the specifics, but I do know I did question certain billing
:I
practices. '. I
. I
Q: Was it with respect to office visits? I
: I
A: It was.
;I
;I
Q: And what was the problem from your perspective.
i I
7
A: I asked why certain ones were billed for office visits when others were not.
Q: And to whom did you pose that question?
A: Jean Flournoy.
Q: Did you pose that question to anyone else other than Jean?
A: I do not recall.
Q: Did anything come of your discussions with Jean regarding that issue?
A: I feel I was fired because of the questions. I
Q: And do you have any specific reason to believe that Jean Flournoy spoke :I
~ J
to anybody about this specific issue? '
A: Yes. Like I said, she spoke to everyone about everything.
Q: Do you have any specific knowledge of Jean speaking to anybody about
:I
this particular issue? ;I
, I
A: No sir, I do not.
I
Q: ... Did you pose any written questions regarding this issue or any written
complaint or any other inquiry about this specific issue? I
A: No, sir.
I
I
[Auman Deposition, pp. 18-19] (emphasis added). l
i
Plaintiff's third allegation of wrongdoing which forms the basis of her ! l
I
Whistleblower claim concerns billing Medical Assistance and Select Plan for free
'l
samples of NuvaRing-a contraceptive device. Again we produce Plaintiff's deposition
I
testimony regarding this concern. I
Q: Okay, let me move on to the issue you raise in the complaint regarding I
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billing medical assistance and Select Plan for NuvaRing samples. Could
you explain what you mean by that?
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A: We were told to bill medical assistance for samples of NuvaRing and they
would be replaced with ones they bought and I questioned it because it
says samples are not be resold.
Q: And who did you question about that?
A: Jean Flournoy.
Q: Did you question anybody else about that?
A: I do not recall if I did.
Q: Do you have any specific knowledge of Jean Flournoy mentioning that
issue to anyone else?
A: No sir, I do not.
Q: To your knowledge were any NuvaRing samples that were sold replaced
with NuvaRings that were purchased?
A: Not to my knowledge.
Q: Could that have happened without you knowing it?
A: Yes.
Q: And did you make any written inquiry or complaint regarding that issue?
A: No, sir, I did not.
[Auman Deposition, pp. 19-20].
Plaintiff's fourth allegation of wrongdoing and improper practices at FPP involve
billing private insurance carriers-Blue Cross and Blue Shield-for a "free" STD
program. Again, we look to Plaintiff's deposition testimony as her evidence in support of
the Whistleblower claim.
Q: Miss Auman, in paragraphs 27 and 28 of your complaint you allege that
you were instructed with respect to patients who have Blue Cross and
Blue Shield to check with them to see if it was okay to bill insurance for a
free STD program. Do you recall those allegations?
A: Yes.
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Q: Can you explain that to me?
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A: I just questioned whether it was right to bill for a program that was free. tI
Q: Now, do you know how the STD program worked?
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A: Yes, sir.
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Q: And how did it work with respect to billing?
A: Oh, my goodness. It was free services, free STD testing, free STD
treatment. Things were changing. There was new billing. There was-it
was discussed in the meeting and I just asked if we advertise a free
program, you know, it's free, isn't it?
Q: Now, did you understand that program to be free for anybody that wanted
it?
A: Yes.
Q: And do you know in fact if that's the case?
A: I am unsure.
Q: And to whom did you pose any questions or concerns about that issue?
A: Jean Flournoy.
Q: Did you speak with. anybody else about it?
A: No, sir.
Q: Did you make any written inquiries or complaints regarding that issue?
A: No, sir.
Q: Do you have specific knowledge that Jean Flournoy spoke to anyone else
about that issue?
A: No, sir.
Q: And do you recall when you raised that issue with Jean?
A: No, sir, I do not.
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[Auman deposition, pp. 21-23J.
The final allegation of wrongdoing at FPP averred in support of Plaintiff's
Whistleblower claim involves an overcharge to a patient at the Selinsgrove clinic.2 From
what we glean from the depositions submitted, a patient was overcharged for services.
This overcharge was discovered and a result FPP refunded the overcharge to the
patient per the patient's instruction by crediting her credit card. The allegation is that
FPP's Executive Director, Peggy Moser, instructed the staff to put the same charge on
some other account-the inference being that by overcharging another patient, FPP
would recover the dollar amount it had credited to the initial patient who had been
overcharged originally. Ms. Auman's testimony regarding this incident is recounted
below.
Q: And do you recall the specifics of that situation?
A: Joan Snook came upstairs and told us that there was a problem with
billing in Selinsgrove. There was a mistake made and when she told
Peggy [Moser} about it Peggy said to put it on someone else's bill. Jean
made note of it on the white board. She had the initials "JF" and fraud
written underneath it with a circle and the date. I do not recall the date.
Q: I'm sorry, Jean wrote "JF" fraud-
A: yes.
Q: ---on a white board?
A: On a white board.
Q: And you believe Jean wrote that in response to something that Joan
Snook told you about something that Peggy Moser said?
A: Jean said we needed to remember that day-that date 'cause it wasn't
right.
2
Plaintiff has averred that the overcharge involved amounted to $69.00. The FPP employees deposed testified
consistently that the correct dollar amount involved is $65.00.
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Q: Did Peggy tell you anything about the alleged improper billing?
A: I do not recall.
Q: And did Joan mention the $69 number?
A: Yes .....
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Q: Now, did you raise any issue regarding this alleged over-billing to anyone? . I '. I
A: No, sir. I
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Q: Do you recall when Joan Snook told you and Jean about the over-billing? I
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A: No, sir, I do not recall. ,I
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Q: And who else was there at the time?
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A: Jean Flournoy and I. : \
Q: After that conversation did you hear anything more about this alleged $69
bill?
A: Not that I recall.
Q: Did you ever come to find out what was the cause of that $69-alleged
$69 over-bill?
A: No.sir.
Q: And did you ever talk to Peggy Moser about that issue?
A: Not that I recall.
Q: Did you talk to anybody else about that issue.
A: Not that I recall.
[Auman deposition, pp. 23-25).
"The Whistleblower Law provides a civil · cause of action to employees for
violations of its provisions. To prove a cause of action for wrongful discharge under the
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Whistleblower Law, the plaintiff must show both a protected report of wrongdoing or
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waste and a causal connection between that report and the discharge." Evans v. :i
Thomas Jefferson University, 81 A.3d 1962, 1064 (Pa.Cmwlth.2013) (citations omitted).
"The causal connection that the Whistleblower Law requires must be demonstrated by I
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'concrete facts or surrounding circumstances that the report of wrongdoing or waste led
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to the plaintiff's dismissal, such as that there was specific direction or information .I
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received not to file the report or that there would be adverse consequences because the I
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report was filed."' Id., at 1070, citing Golaschevsky v. Department of Environmental i
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Resources, 720 A.2d 757, 758 (Pa.1998). The Whistleblower Law "is not designed to I
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provide insurance against discharge or discipline for an employee who informs on every
peccadillo of his fellow employees." Golschevsky v. Department of Environmental
Resources, 683 A.2d 1299, 1304 (Pa.Cmwlth.1996), aff'd 720 A.2d 757 (Pa. 1998).
The burden shifts to the defendant to show a separate and legitimate reason for its
actions only where plaintiff has satisfied the threshold showing of a causal connection.
O'Rourke v. Commonwealth, 778 A.2d 1194, 1200 (Pa.2001). "[V]ague and
inconclusive circumstantial evidence" is insufficient to satisfy that threshold burden to
show a causal connection and shift the burden to the defendant to justify its actions.
Evans v. Thomas Jefferson Hospital, supra at 1070 (citations omitted).
Having reviewed the record submitted to the Court in support of and opposing
the instant motion, we must conclude that Plaintiff has not made a prime facie showing
of a violation of the Law. First of all, Plaintiff's own testimony leads to the conclusion
that Plaintiff never made a report, formally or informally, of the events and incidents
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detailed herein to her employer. By her own admissions, Plaintiff never voiced any of .I
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her concerns to the Executive Director of FFP, Peggy Moser or to the Assistant I
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Director, Lisa Hepner Wehr. Plaintiff's own testimony establishes that the only person
she spoke to about her questions regarding these incidents and events was Jean
Flournoy-a co-worker. While Plaintiff's counsel may represent to this Court that for all
intents and purposes Jean Flournoy was Plaintiff's supervisor, Plaintiff's own testimony
dispels counsel's contention. Plaintiff clearly stated that Jean Flournoy did not have any
supervisory duties over her.
Other than the conversation with Jean Flournoy in January 2013 regarding Dr.
Levine's name appearing on billing software, Plaintiff cannot establish a time frame for
any other incident and thus cannot even· establish a temporal connection between the
incidents and events at issue and her termination. Moreover, Plaintiff had no
knowledge whether her supervisor, Peggy Moser (the individual who actually terminated
Plaintiff) actually knew of Plaintiff's questions and concerns about the incidents and
events which Plaintiff asserts lead to her firing. Plaintiff's assertion that Jean Flournoy
had to have told Peggy Moser about Plaintiff's complaints because "Jean talked to
everyone about everyone's business" constitutes "vague and inconclusive
circumstantial evidence" which cannot satisfy Plaintiff's burden to produce at this point
in the action "evidence of facts essential to her cause."
In order to qualify as a "whistleblower" under the statute, Plaintiff must be a
"person who witnesses or has evidence of wrongdoing or waste while employed and
who makes a good faith report of the wrongdoing or waste, verbally in writing, to one of
the person's superiors ... " 43 P.S. § 1422. It would appear from Plaintiff's own
testimony that she did not make reports of any kind to her superiors. On the contrary,
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her own testimony shows that she merely asked questions of a co-worker, nothing
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more.
In addition, the statute requires that a person make a good faith report of . i
wrongdoing or waste. The statute defines "wrongdoing" as a "violation which is not of a
merely technical or minimal nature of a Federal or State statute or regulation, of a
political subdivision, ordinance or regulation or of a code of conduct or ethics desiqned
to protect the interest of the public or the employer." Plaintiff does not identify in her
pleadings or in her response to the instant motion the Federal or State statute or
regulation, ordinance, regulation, or code of conduct or ethics supposedly violated by
anyone affiliated with or employed by FPP. Even if we were to construe Plaintiff's
allegations regarding the appearance of Dr. Levine's name on software after December
2012 as "wrongdoing", Plaintiff has not submitted any evidence to support that this
occurrence violated any statute, regulation, code of conduct or ethics. Plaintiff has not
submitted any evidence that Dr. Levine saw FPP patients/clients after December 31,
2012 or that he and/or FPP billed for professional services rendered by him after
December 31, 2012. Plaintiff has not submitted any evidence to rebut the information
indicated in Defendant's Exhibit "B" attached to its Motion which is correspondence from
the Pennsylvania Department of Public Welfare, Office of Medical Assistance Programs
dated February 12, 2013 which states that the enrollment of Dr. Glenn S. Sherman "as
a medical provider under programs administered by ... (DPW) has been approved"
effective November 1, 2012. Plaintiff admitted in her deposition that Dr. Sherman did
replace Dr. Levine as FPP's medical director. As to the allegation regarding Dr. Levine,
Plaintiff has not met her burden in order to go forward.
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Regarding the allegation of "improper billing practices", Plaintiff testified that she
could not recall the specifics and that she simply questioned billing practices. Plaintiff
has not submitted in response to the instant motion specific instances of improper billing
which would support an allegation of "waste" of public funds or resources. Therefore, all
we are left with is an unsupported allegation which is lnsufficientto survive summary
judgment.
Plaintiff has also alleged wrongdoing and waste based upon an alleged practice
by the clinic to sell "free" samples of a contraceptive device, NuvaRing. Plaintiff's
testimony is that she "questioned" the practice because the samples are marked "not for
resale."
Plaintiff attached to her response to the Motion copies of several depositions,
including the deposition of Lisa Hepner Wehr. Ms. Wehr is FPP's former program
director and currently serves as its Assistant Director. In her deposition, Ms. Wehr
explained that the NuvaRing is a contraceptive device. The clinic does receive free
samples of the device which it saves for distribution to patients/clients who are eligible
for free services. Ms. Wehr testified regarding one incident in which a patient/client
requested a device but did not qualify for free services. The center had run out of the
· devices designated for sale. The center had two options. It could have written a
prescription for the device so the patient/client could purchase the device from a retail
pharmacy at a high price or it could "sell" a free sample to the patient/client at a reduced
price and then replace the free sample with a device from lts restocked inventory. The
center chose the latter option. According to Ms. Wehr's testimony (submitted incident to
this motion by Plaintiff), the clinic chose to sell the device to the patient at a reduced
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price and then did replace the free sample with a device from its resale inventory.
Plaintiff has not submitted any evidence to establish that this practice violated a statute
or regulation, code of conduct or ethics. Plaintiff has not submitted any evidence to
rebut Ms. Wehr's testimony about this one incident. Plaintiff has not submitted any
testimony that she reported her concerns to Ms. Moser, Ms. Wehr and/or Ors. Levine or
Sherman. Plaintiff has not submitted any testimony to establish a time frame when she
would have questioned this practice to her co-worker, Jean Flournoy. As a result, we
must conclude that Plaintiff has not met her initial evidentiary burden to survive
summary judgment.
Plaintiff alleges that FPP engaged in waste and wrongdoing by improperly billing
patients/ clients' private insurance carriers for "free" services provided by DPW's
Sexually Transmitted Disease [STDJ program. Exhibit "D" attached to Defendant's
Motion sets out the payment provisions and guidelines established by DPW pertaining
to the STD program. This document states in pertinent part: "The Provider3 shall seek
reimbursement from all other federal and state programs which the clientmay be
eligible and all third party payers including, but not limited to private insurers
before billingthe Department. If the payment provided by another payer is, by law or
agreement, accepted by the Provider as payment in full ... , the Provider shall not bill the
Department or client for services provided to the client." We read this language to
corroborate the testimony of multiple witnesses employed with FPP that as far as the
STD program was concerned, DPW was the payor of last resort. It is clear from Exhibit
"D" that the clinic's practice of asking STD clients if FPP could bill their private insurance
3 We note that Ms. Wehr explained that the "Provider" could be the laboratory performing the STD analysis or
FPP which would be paid for an office visit.
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for testing and services was in compliance with DPW guidelines. Therefore, Plaintiff
cannot establish any waste or wrongdoing that would support a Whistleblower claim.
Finally, the last allegation of waste and wrongdoing stems from the "overcharge"
incident. We have reproduced Plaintiff's deposition testimony regarding this incident in
pages 11 and 12 of this Opinion. In her testimony, Plaintiff describes her observations
of the verbal exchange between two employees-Joan Snook and Jane Flournoy.
· Glaringly missing from Plaintiff's testimony is any evidence that Plaintiff reported or was
about to report her observations to anyone in authority at FPP. In order to invoke the
protections of the Whistleblower statute, one has to first qualify as a "whistleblower"-
that is, one has to be a "person... who makes a good faith report of the wrongdoing or
waste... " By her own admission, Plaintiff did not raise the issue regarding the alleged
overbilling to anyone nor could she recall if she ever spoke of it to anyone at FPP
including the Executive Director, Peggy Moser.
Therefore, based upon our review of the record in the light most favorable to
Plaintiff, we must conclude that Plaintiff's claim is woefully lacking in factual proof.
Without making any credibility determinations of any nature, Plaintiff has failed to
produce evidence of facts that would establish that she made actual reports to her
employer of the incidents at issue; that any of these alleged incidents constitute waste
of public funds; or that FPP violated Federal or state statutes, regulations, ordinances, a
code of conduct or ethics. Plaintiff, as the non-moving party, has failed to come forward
- with sufficient evidence essential to her cause of action. Accordingly, we will grant
Defendant's Motion for Summary Judgment on Count I sounding in violations of the
Whistleblower statute.
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We will also grant Defendant the same relief and grant summary judgment in
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favor of Defendant as to Count II, as well, sounding in Wrongful Discharge. Count II of
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the Complaint incorporates by reference the allegations averred in Count I. Count II . I
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does not aver any factual allegations exclusive of the allegations pleaded in the
"Whistleblower" count of the Complaint. Paragraphs 50 and 51 of the Complaint simply
recite language from case authority stating the exceptions to the "at will" employment
'doctrtne. Clearly, Count II of the Complaint is based solely on the allegations averred in
Count I. Since we have concluded that Plaintiff has not met her evidentiary burden to
survive summary judgment as to Count I, it follows that we must reach the same
conclusion regarding Count II of the Complaint. Therefore, we will grant summary
judgment as to Count II as well. '
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Accordingly, Defendant's Motion for Summary Judgment is GRANTED.
Plaintiff's Complaint is dismissed with prejudice. This matter is removed from the list of
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civil matters scheduled for jury selection on April 27 and 28, 2015. This matter is no :. I
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longer scheduled for jury trial on May 5, 6, 7, 2015. : I
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BY THE COURT: :I
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