Ming Wei v. Commonwealth of Pennsylvania ( 2020 )

NOT PRECEDENTIAL
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 IN THEIR INDIVIDUAL CAPACITIES
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 11-cv-00688)
District Judge: Honorable John E. Jones, III
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 3, 2020
Before: KRAUSE, MATEY, and COWEN, Circuit Judges
(Opinion filed: January 7, 2020)
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OPINION*
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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 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
*
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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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 Recommendation. 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. McCurry, 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: (1)
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 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
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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: (1) 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
Commonwealth Court affirmed the Commission’s conclusion 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 Commonwealth 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 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 performance.
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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 err in giving preclusive effect to the Commission’s decision.
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 asked for the details of “converting HARS HIV/AIDS data files into PA NEDSS,”
Appellees responded “[The Department] 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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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 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
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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
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 Ry. 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.
2
Wei argues that shortly after the April 4, 2007 reprimand, his assignment was changed.
He claimed that on April 9, 2007, Urdaneta 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.
8
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 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.
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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 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.
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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.
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
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performance. App. at 507. Because Wei’s removal was, in fact, for 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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