Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 1 of 39
`Case 3:21-cv-01378—MEM Document 1 Filed 08/06/21 Page 1 of 39
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
`
`LISA POMPA
`
`v.
`
`Plaintiff,
`
`ST. LUKE’S HOSPITAL
`
`and
`
`BLUE MOUNTAIN HOSPITAL dlbla
`
`ST. LUKE’S HOSPITAL - GNADEN
`
`HUETTEN CAMPUS OF LEHIGHTON,
`PENNSYLVANIA
`
`and
`
`ST. LUKE’S UNIVERSITY
`
`HEALTH NETWORK
`
`:
`
`'
`
`:
`
`:
`
`.
`
`:
`:
`
`:
`
`CIVIL ACTION NO.
`
`JURY TRIAL DEMANDED
`
`Defendants. :
`
`COMPLAINT
`
`I.
`
`PRELIMINARY STATEMENT
`
`Plaintiff, Lisa Pompa (“Plaintiff”), brings this action against her former employers,
`
`St. Luke’s Hospital, Blue Mountain Hospital d/b/a St. Luke's Hospital — Gnaden Huetten
`
`Campus of Lehighton, Pennsylvania, and St. Luke’s University Health Network
`
`(collectively, “Defendants” or “St. Luke’s”), pursuant to the Age Discrimination in
`
`Employment Act of 1967, 29 U.S.C. §621 et. seq. (“ADEA”), and the Pennsylvania
`
`Human Relations Act, 43 PS. §951 et. seq. (“PHRA”).
`
`In 2018, St. Luke’s acquired
`
`Blue Mountain Health System (“BMHS”), which had employed Plaintiff from 2004 to
`
`2018, and following the acquisition, Plaintiff became an employee of St. Luke’s. Prior to
`
`becoming employed by BMHS, Plaintiff had worked for BMHS’s predecessor, Gnaden
`
`Huetten Memorial Hospital ("Gnaden Huetten”), from 1984 to 2004. BMHS was formed
`
`in 2004 when Gnaden Huetten merged with Palmerton Hospital. While employed at
`
`Gnaden Huetten and at BMHS, Plaintiff, a trained cardiopulmonary rehabilitation
`
`
`Case 3:21-cv-01378—MEM Document 1 Filed 08/06/21 Page 1 of 39
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
`
`LISA POMPA
`
`v.
`
`Plaintiff,
`
`ST. LUKE’S HOSPITAL
`
`and
`
`BLUE MOUNTAIN HOSPITAL dlbla
`
`ST. LUKE’S HOSPITAL - GNADEN
`
`HUETTEN CAMPUS OF LEHIGHTON,
`PENNSYLVANIA
`
`and
`
`ST. LUKE’S UNIVERSITY
`
`HEALTH NETWORK
`
`:
`
`'
`
`:
`
`:
`
`.
`
`:
`:
`
`:
`
`CIVIL ACTION NO.
`
`JURY TRIAL DEMANDED
`
`Defendants. :
`
`COMPLAINT
`
`I.
`
`PRELIMINARY STATEMENT
`
`Plaintiff, Lisa Pompa (“Plaintiff”), brings this action against her former employers,
`
`St. Luke’s Hospital, Blue Mountain Hospital d/b/a St. Luke's Hospital — Gnaden Huetten
`
`Campus of Lehighton, Pennsylvania, and St. Luke’s University Health Network
`
`(collectively, “Defendants” or “St. Luke’s”), pursuant to the Age Discrimination in
`
`Employment Act of 1967, 29 U.S.C. §621 et. seq. (“ADEA”), and the Pennsylvania
`
`Human Relations Act, 43 PS. §951 et. seq. (“PHRA”).
`
`In 2018, St. Luke’s acquired
`
`Blue Mountain Health System (“BMHS”), which had employed Plaintiff from 2004 to
`
`2018, and following the acquisition, Plaintiff became an employee of St. Luke’s. Prior to
`
`becoming employed by BMHS, Plaintiff had worked for BMHS’s predecessor, Gnaden
`
`Huetten Memorial Hospital ("Gnaden Huetten”), from 1984 to 2004. BMHS was formed
`
`in 2004 when Gnaden Huetten merged with Palmerton Hospital. While employed at
`
`Gnaden Huetten and at BMHS, Plaintiff, a trained cardiopulmonary rehabilitation
`
`
`
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 2 of 39
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 2 of 39
`
`therapist and exercise physiologist, provided clinical care and therapy to patients
`
`suffering from a variety of cardiac and pulmonary diseases.
`
`In addition to her clinical
`
`responsibilities, Plaintiff was tasked with coordinating and managing the
`
`cardiopulmonary rehabilitation programs at Gnaden Huetten and BMHS from 1993 to
`
`2018.
`
`In her combined 34 years of employment at Gnaden Huetten and BMHS,
`
`Plaintiff’s overall performance record was outstanding.
`
`In June of 2018, when Plaintiff transitioned to employment at St. Luke's, she was
`
`53 years of age, was given the title of Manager of Cardiopulmonary Rehabilitation, and
`
`began reporting to William Merkert (“Merkert”), Director of Cardiopulmonary
`
`Rehabilitation. On November 15, 2018 and again December 4, 2018, Plaintiff
`
`complained in writing to St. Luke's that she had been discriminated against by Merkert
`
`on an ongoing basis because of her age. and that Merkert’s acts and practices of age
`
`discrimination had caused her to be subjected to a hostile work environment. On
`
`December 20, 2018, St. Luke’s suspended Plaintiff without pay pending an investigation
`
`into an accusation that she had been insubordinate to Merkert. While attempting to
`
`defend herself against what she knew to be a false accusation, Plaintiff remained out of
`
`work on suspension until January 8, 2019, when she was advised by St. Luke’s during a
`
`telephone call that her employment was terminated. On January 17, 2019, Plaintiff
`
`received a letter from St. Luke’s, dated January 11, 2019, informing herthat she had
`
`been fired for insubordination.
`
`In fact, St. Luke’s suspended Plaintiff and terminated her
`
`employment in retaliation for her recent complaints of age discrimination, and the
`
`reasons asserted by St. Luke's for suspending and firing Plaintiff were pretexts for
`
`retaliation prohibited by the ADEA and the PHRA. To remedy the acts of discrimination
`
`
`
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 3 of 39
`Case 3:21-cv-01378—MEM Document 1 Filed 08/06/21 Page 3 of 39
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`and retaliation alleged herein, Plaintiff seeks relief in the form of, inter alia, back pay,
`
`front pay, liquidated damages under the ADEA, compensatory damages under the
`
`PHRA, attorney’s fees and costs.
`
`ll.
`
`PARTIES
`
`1.
`
`Plaintiff is an adult individual residing in Jim Thorpe, Pennsylvania, who
`
`was born in 1964, and is presently 56 years of age.
`
`2.
`
`Defendant, St. Luke’s Hospital, is a corporation or other legal entity
`
`organized and existing under the laws of the Commonwealth of Pennsylvania which
`
`provides health care services at various locales within Pennsylvania, with a principal
`
`place of business at 211 N. 12th Street, Lehighton, Pennsylvania. This Defendant was
`
`identified as Plaintiff’s employer in tax forms and paychecks that were issued to Plaintiff.
`
`3.
`
`Defendant Blue Mountain Hospital d/b/a St. Luke’s Hospital — Gnaden
`
`Huetten Campus of Lehighton, Pennsylvania, is a corporation organized and existing
`
`under the laws of the Commonwealth of Pennsylvania which provides health care
`
`services at various locales within Pennsylvania, with a principal place of business at 211
`
`N. 12th Street, Lehighton, Pennsylvania. This Defendant was identified as Plaintiff's
`
`employer in St. Luke’s Answer to Plaintiffs Pennsylvania Human Relations Commission
`
`(“PHRC”) Complaint.
`
`4.
`
`Defendant, St. Luke’s University Health Network, is a corporation or other
`
`legal entity organized and existing under the laws of the Commonwealth of
`
`Pennsylvania which provides health care services at various locales within
`
`Pennsylvania, with a principal place of business at 211 N. 12th Street, Lehighton,
`
`Pennsylvania. This Defendant was identified as Plaintiff’s employer in correspondence
`
`
`
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 4 of 39
`Case 3:21-cv-01378—MEM Document 1 Filed 08/06/21 Page 4 of 39
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`and e-mails that were sent to or received by Plaintiff, and in an e-mail address used by
`
`Plaintiff that was provided by St. Luke's.
`
`5.
`
`Defendants shall be referred to collectively herein as “Defendants" or “St.
`
`Luke’s."
`
`6.
`
`At all relevant times, Defendants acted by and through their agents,
`
`officials, representatives and employees, acting within the scope of their authority, in the
`
`course of their employment, and in furtherance of the Defendants’ mission, business
`
`and affairs.
`
`7.
`
`At all relevant times, Defendants have been “employers” within the
`
`meaning of the ADEA and the PH RA, and they were the “employers” of Plaintiff.
`
`8.
`
`At all relevant times, Plaintiff was an “employee” of Defendants within the
`
`meaning of the ADEA and the PHRA.
`
`9.
`
`At all relevant times, Defendants have employed a sufficient number of
`
`employees to subject them to the provisions and requirements of the ADEA and the
`
`PHRA.
`
`III.
`
`JURISDICTION ANDI VENUE
`
`10.
`
`The Court has jurisdiction over Plaintiff’s claims arising under the ADEA
`
`pursuant to 28 U.S.C. §1331 and 29 U.S.C. §626(c)(1).
`
`11.
`
`The Court has supplemental jurisdiction over Plaintiff's claims arising
`
`under the PHRA pursuant to 28 U.S.C. §1367(a).
`
`12.
`
`Venue is proper in this judicial district pursuant to 28 U.S.C. §1391(b)
`
`because Defendants reside in this district, and all or a substantial part of the events and
`
`occurrences giving rise to Plaintiff‘s claims occurred here.
`
`
`
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 5 of 39
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 5 of 39
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`IV.
`
`PLAINTIFF'S COMPLIANCE WITH ADMINISTRATIVE PROCEDURES
`
`13.
`
`On May 13, 2019, Plaintiff filed a Complaint against St. Luke’s with the
`
`PHRC, in which she complained of the acts and practices of discrimination and
`
`retaliation alleged herein (“PHRC Complaint").
`
`14.
`
`May 13, 2019, Plaintiff’s PHRC Complaint was cross-filed with the US.
`
`Equal Employment Opportunity Commission (“EEOC”).
`
`15.
`
`On May 17, 2021, the EEOC issued to Plaintiff, upon her request, a
`
`“Notice of Right to Sue", a true and correct copy of which is attached hereto as Exhibit
`
`“",A informing Plaintiff that she was required to file a lawsuit against St. Luke’s pursuant
`
`to the ADEA within 90 days of her receipt of the Notice of Right to Sue.
`
`16.
`
`Plaintiff’s ADEA claims asserted herein are timely since this Complaint is
`
`being filed within 90 days of Plaintiff’s receipt of the Notice of Right to Sue from the
`
`EEOC.
`
`17.
`
`Plaintiff‘s PHRA claims asserted herein are timely since Plaintiffs PHRC
`
`Complaint was filed more than one year ago. See 43 PS. §962(c)(1).
`
`V.
`
`STATEMENT OF FACTS
`
`A.
`
`1984 to May 2018: Plaintiff’s Employment and Performance at
`Gnaden Huetten and BMHS
`
`18.
`
`On or about June 29, 1984, Plaintiff, at age 19, became employed by
`
`Gnaden Huetten as a Physical Therapist Assistant.
`
`19.
`
`Plaintiff was employed by Gnaden Huetten from June 1984 until 2004.
`
`
`
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 6 of 39
`Case 3:21-cv-01378—MEM Document 1 Filed 08/06/21 Page 6 of 39
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`20.
`
`As an employee of Gnaden Huetten, Plaintiff took a strong interest in
`
`providing clinical and rehabilitative care and therapy to patients afflicted with cardiac
`
`and pulmonary diseases.
`
`21.
`
`In accordance with her career aspirations, Plaintiff attended college while
`
`working for Gnaden Huetten, and in December 1990, she graduated from Temple
`
`University with a Bachelor of Science degree in Exercise Physiology.
`
`22.
`
`On or about July 12, 1993, Plaintiff's job title at Gnaden Huetten was
`
`changed to Exercise Physiologist.
`
`23. While employed at Gnaden Huetten, Plaintiff worked diligently on creating
`
`a new program that would offer outpatient cardiopulmonary rehabilitation treatment and
`
`therapy (“Cardiopulmonary Rehab") to patients suffering from cardiac and pulmonary
`
`diseases.
`
`24.
`
`In 1993, with Plaintiff taking a lead role, Gnaden Huetten launched a new
`
`Cardiopulmonary Rehab program, which was the first of its kind in Carbon County,
`
`Pennsylvania.
`
`25.
`
`In 1993, Gnaden Huetten assigned Plaintiff the responsibility for
`
`coordinating and managing its new Cardiopulmonary Rehab program, under the
`
`directorship of Gary Higgins (“Higgins”), who was Plaintiff’s long-time supervisor at
`
`Gnaden Huetten.
`
`26.
`
`From 1993 to 2004, Plaintiff successfully managed the Cardiopulmonary
`
`Rehab program at Gnaden Huetten under the direction of Higgins; and in addition to her
`
`managerial role, Plaintiff worked as a clinician providing Cardiopulmonary Rehab to
`
`patients of Gnaden Huetten.
`
`
`
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 7 of 39
`Case 3:21-cv-01378—MEM Document 1 Filed 08/06/21 Page 7 of 39
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`27.
`
`At all relevant times, including from 1993 to 2004, Plaintiff was part of a
`
`team of clinicians at Gnaden Huetten who administered Cardiopulmonary Rehab to
`
`patients (the “CPR Clinical Team"); and the CPR Clinical Team included Plaintiff, Mary
`
`Fulton (“Fulton”), Karen Alboucq (“Alboucq”), and Linda Rehus (“Rehus”).
`
`28.
`
`In December 2000, Gnaden Huetten changed Plaintiff‘s job title to
`
`Coordinator of Cardiopulmonary Rehab, so that her title would reflect and be aligned
`
`with the responsibilities she had been successfully performing at Gnaden Huetten for
`
`years.
`
`29.
`
`From 1984 to 2004, Plaintiff was a loyal, dedicated, hard working, ethical
`
`and conscientious employee of Gnaden Huetten who was strongly committed to the
`
`health and welfare of patients.
`
`30.
`
`From 1984 to 2004, Plaintiff’s performance as an employee of Gnaden
`
`Huetten was superior, and was recognized as such in written performance reviews that
`
`Plaintiff received pursuant to Gnaden Huetten's employment policies.
`
`31.
`
`In addition to her excellent performance reviews, Plaintiff received
`
`accolades, praise, commendations and recognition for her work performance at Gnaden
`
`Huetten from supervisors, peers, colleagues, co-workers, patients, and health care
`
`providers.
`
`32.
`
`Plaintiff was a key contributor to the success and outstanding reputation of
`
`Gnaden Huetten’s Cardiopulmonary Rehab program.
`
`33.
`
`At no time during the nearly 20 years of her employment at Gnaden
`
`Huetten did Plaintiff receive any form of disciplinary action.
`
`
`
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 8 of 39
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 8 of 39
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`34.
`
`In 2004, Gnaden Huetten merged with Palmerton Hospital (“Palmerton”) to
`
`form BMHS, as a result of which Plaintiff became an employee of BMHS.
`
`35.
`
`Plaintiff was employed by BMHS from 2004 until approximately May 2018.
`
`36.
`
`In 2004, following the merger that resulted in the formation of BMHS, the
`
`other members of the CPR Clinical Team, who had worked with Plaintiff for many years
`
`at Gnaden Huetten (Fulton, Alboucq and Rehus), along with Higgins, also transitioned
`
`to employment at BMHS, and they too were employed by BMHS until 2018.
`
`37.
`
`Throughout the course of her 14 years of employment at BMHS, Plaintiff
`
`managed the Cardiopulmonary Rehab program at both of BMHS’s facilities (Gnaden
`
`Huetten and Palmerton), under the directorship of Higgins, and at times, Susan Strauss.
`
`38. While they were employed at BMHS from 2004 to 2018, Plaintiff and the
`
`other members of the CPR Clinical Team had clinical responsibilities for providing
`
`Cardiopulmonary Rehab to patients of BMHS.
`
`39.
`
`In August 2008, BMHS changed Plaintiff's job title to Supervisor of
`
`Cardiopulmonary Rehab, to reflect the responsibilities that Plaintiff had been performing
`
`at BMHS for approximately four years.
`
`40.
`
`Largely through the efforts of Plaintiff, the Cardiopulmonary Rehab
`
`program at BMHS was certified by the prestigious American Association of
`
`Cardiovascular and Pulmonary Rehabilitation (“AACVPR”) for both cardiac and
`
`pulmonary rehabilitation. AACVPR program certification is the only peer-reviewed
`
`accreditation process designed to review individual facilities for adherence to guidelines
`
`and standards developed and published by AACVPR and other professional
`
`organizations.
`
`
`
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 9 of 39
`Case 3:21-cv-01378—MEM Document 1 Filed 08/06/21 Page 9 of 39
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`41.
`
`From 2004 to 2018, Plaintiff was a loyal, dedicated, hard working, ethical,
`
`and conscientious employee of BMHS who was deeply committed to the health and
`
`welfare of patients.
`
`42.
`
`Plaintiff’s performance as an employee of BMHS from 2004 to 2018 was
`
`outstanding, and was recognized as such in written performance reviews that Plaintiff
`
`received pursuant to BMHS’s employment policies.
`
`43.
`
`In addition to her excellent performance reviews, Plaintiff was the recipient
`
`of accolades, praise, commendations and recognition for her work performance at
`
`BMHS from supervisors, peers, colleagues, co-workers, patients, and health care
`
`providers.
`
`44.
`
`Plaintiff was a key contributor to the success and stellar reputation of
`
`BMHS’s Cardiopulmonary Rehab program.
`
`45.
`
`At no time during the 14 years of her employment at BMHS was Plaintiff
`
`disciplined.
`
`B.
`
`St. Luke’s Acguisition of BMHS and Transitional Period
`
`46.
`
`On September 12, 2017, Andrew Harris (“Harris”), then-President and
`
`CEO of BMHS, announced in a letter addressed to BMHS employees that BMHS would
`
`be “joining" St. Luke’s within six months.
`
`47.
`
`An attachment to Harris’ September 12, 2017 letter, also sent to BMHS
`
`employees, stated, inter alia, that “[o]riginal hire dates at BMHS will determine seniority
`
`and benefit eligibility after the transition to St. Luke’s”; “[f]uture changes to
`
`compensation and benefits overall are expected to be beneficial to the BMHS
`
`
`
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 10 of 39
`Case 3:21-cv-01378—MEM Document 1 Filed 08/06/21 Page 10 of 39
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`employees"; and “[c]areer opportunities for the BMHS employees will be expanded due
`
`to the size of St. Luke’s University Health Network.”
`
`48.
`
`In January 2018, Terry Purcell (“Purcell"), then-President of BMHS,
`
`informed Plaintiff that the Cardiopulmonary Rehab program that Plaintiff was managing
`
`at BMHS had caught the attention of the hospital administration at St. Luke’s, who
`
`according to Purcell were impressed with the performance and profitability of the
`
`program.
`
`49.
`
`Based on the contents of Harris’s letter and attachment, which Plaintiff
`
`received and read, and her discussion with Purcell, Plaintiff was excited about the
`
`prospect of becoming an employee of St. Luke’s.
`
`50.
`
`On March 29, 2018, Plaintiff attended a meeting with Purcell, William
`
`Merkert and others, at which it was announced that following St. Luke’s acquisition of
`
`BMHS, Plaintiff would continue to manage the Cardiopulmonary Rehab program at the
`
`Gnaden Huetten and Palmerton facilities (which were acquired by St. Luke’s), and that
`
`Plaintiff would continue providing the same model of patient care for Cardiopulmonary
`
`Rehab that she had been providing at BMHS.
`
`51.
`
`It was further announced at the March 29, 2018 meeting that Plaintiff
`
`would report to Merkert, whose responsibilities would encompass the Cardiopulmonary
`
`Rehab programs at a number of St. Luke's facilities, including Gnaden Huetten and
`
`Palmerton.
`
`52.
`
`it was also announced at the March 29, 2018 meeting that Higgins would
`
`no longer serve as Director of Cardiopulmonary Rehab for the Gnaden Huetten and
`
`Palmerton facilities.
`
`10
`
`
`
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`Case 3:21-cv-01378—MEM Document 1 Filed 08/06/21 Page 11 of 39
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`53.
`
`In or around June 2018, BMHS employees, including Plaintiff, transitioned
`
`to employment at St. Luke’s.
`
`54.
`
`In on or around June 2018, Plaintiff was given the title of Manager of
`
`Cardiopulmonary Rehab for the St. Luke’s Gnaden Huetten and Palmerton facilities,
`
`and Plaintiff began to formally report to Merkeit.
`
`55.
`
`Plaintiff’s primary responsibilities did not change following the
`
`commencement of her employment at St. Luke’s, as she continued to manage the
`
`Cardiopulmonary Rehab program at the Gnaden Huetten and Palmerton facilities, as
`
`well as provide clinical care to Cardiopulmonary Rehab patients.
`
`56.
`
`In or around June 2018, the other members of the CPR Clinical Team
`
`(Fulton, Alboucq and Rehus), who had worked together and with Plaintiff at BMHS, and
`
`before that at Gnaden Huetten, also transitioned to employment at St. Luke's, and they
`
`too continued to administer Cardiopulmonary Rehab to patients.
`
`57.
`
`Beginning in or around June 2018, and continuing thereafter, many
`
`patients of BMHS who had received Cardiopulmonary Rehab from the CPR Clinical
`
`Team at the Gnaden Huetten and/or Palmerton facilities prior to the merger became
`
`patients of St. Luke’s; and they continued to receive Cardiopulmonary Rehab from
`
`Plaintiff and the CPR Clinical Team at those facilities.
`
`C.
`
`AACVPR and Medicare Coding and Billing Guidelines and
`Regulations for Cardiogulmonag Rehab
`
`58.
`
`At all relevant times when Plaintiff and the CPR Clinical Team worked at
`
`Gnaden Huetten, BMHS and St. Luke’s, common coding and billing guidelines,
`
`mandates and regulations published by AACVPR, Highmark Medicare Services (CMS)
`
`11
`
`
`
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 12 of 39
`Case 3:21-cv-01378—MEM Document 1 Filed 08/06/21 Page 12 of 39
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`and other established entities were used for Cardiopulmonary Rehab, including
`
`Pulmonary Rehabilitation Therapy (“PRT") (the “Guidelines”).
`
`59.
`
`At all relevant times, the Guidelines for PRT were based on a “G-Code”
`
`system that was used by clinicians, providers. coders and/or billing personnel.
`
`60.
`
`Under the G-Code system, a specific billing code was assigned to and
`
`used for each type of PRT that was administered to a patient.
`
`61.
`
`At all relevant times, the Guidelines required that the “G0238” billing code
`
`was to be used specifically for PRT therapeutic procedures to improve respiratory
`
`function and/or functional capacity, when one-on-one, face-to-face treatment and
`
`monitoring was provided by a single therapist to one patient (“1 :1 Pulmonary Therapy”),
`
`and that 1:1 Pulmonary Therapy was to be billed in timed “units” of 15 minutes each (so
`
`that, for example, when 1:1 Pulmonary Therapy was administered to one patient for one
`
`hour, the patient was to be charged 4 units of 15 minutes each).
`
`62.
`
`At all relevant times, the Guidelines further required that the “G0239”
`
`billing code was to be used specifically for PRT therapeutic procedures to improve
`
`respiratory function or increase strength or endurance of respiratory muscles, when two
`
`or more patients were treated and monitored by one therapist (“Group Pulmonary
`
`Therapy"), with the Group Pulmonary Therapy to be billed as only 1 unit.
`
`63. When Plaintiff and the CPR Clinical Team worked at Gnaden Huetten and
`
`at BMHS, they scrupulously followed and adhered to the Guidelines; and in accordance
`
`therewith, they administered both types of PRT to patients (1 :1 Pulmonary Therapy as
`
`well as Group Pulmonary Therapy) depending on circumstances which would include
`
`each patient’s diagnosis and plan of care.
`
`12
`
`
`
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 13 of 39
`Case 3:21-cv-01378—MEM Document 1 Filed 08/06/21 Page 13 of 39
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`64. When Plaintiff and the CPR Clinical Team worked at Gnaden Huetten and
`
`at BMHS, and 1:1 Pulmonary Therapy was administered to a patient. the G0238 billing
`
`code (with multiple units) would be entered in the billing system; and when Group
`
`Pulmonary Therapy was administered to two or more patients, the 60239 billing code
`
`(and 1 unit) would be entered.
`
`65.
`
`At all relevant times, this longstanding coding and billing practice for PRT,
`
`which complied with the Guidelines, was followed at Gnaden Huetten and at BMHS,
`
`with no issues, complaints, negative repercussions or adverse consequences of which
`
`Plaintiff was aware.
`
`66.
`
`In fact, when Plaintiff was employed at Gnaden Huetten and at BMHS,
`
`she and the CPR Clinical Team were recognized, praised, lauded and commended for
`
`the performance and success of the Cardiopulmonary Rehab program, which included
`
`their administration of and billing for PRT in accordance with the Guidelines.
`
`D.
`
`The CPR Clinical Team’s Administration of 1:1 Pulmonary Therapy
`and Use of the 60238 Billing Code Following St. Luke’s Acquisition
`of BMHS
`
`67.
`
`Beginning in or around June 2018, when Plaintiff and the CPR Team
`
`transitioned to employment with St. Luke’s, and continuing thereafter, they continued to
`
`administer both types of PRT to patients pursuant to the Guidelines, and would bill for
`
`the PRT either under G0238 (for 1:1 Pulmonary Therapy) or G0239 (for Group
`
`Pulmonary Therapy).
`
`68.
`
`In July and August 2018, Plaintiff had conversations with Merkert in which
`
`they discussed the appropriateness of continuing to treat patients of St. Luke’s with 1:1
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`Pulmonary Therapy; and in those conversations, Plaintiff attempted to educate Merkert
`
`13
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`
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`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 14 of 39
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 14 of 39
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`regarding the circumstances under which 1:1 Pulmonary Therapy was the appropriate
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`form of PRT (for example, when the patient did not have a diagnosis of COPD), and to
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`explain to Merkert that the G0238 billing code had to be used when 1:1 Pulmonary
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`Therapy was administered.
`
`69.
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`In addition, Plaintiff informed Merkert that the staffing at St. Luke's was
`
`adequate to justify the continued administration of 1:1 Pulmonary Therapy to patients of
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`St. Luke‘s.
`
`70.
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`However, on August 24, 2018, Merkert sent an e-mail to Plaintiff in which
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`he advised her to “phase out ALL G0238 charges"; to “contact [him] for approval to use
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`60238”; and to use G0239 “for all non-COPD patients.”
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`71.
`
`The instructions that Merkert gave to Plaintiff in his August 24, 2018 e-mail
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`were inconsistent and in conflict with the Guidelines, patient diagnoses, patient care
`
`plans and/or ongoing modes of treatment.
`
`72. Merkert’s August 24, 2018 e-mail further advised Plaintiff that “there may
`
`be a time when [60238] is warranted for a true 1:1 [patient] with high acuity” and that
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`“[i]t is not my intent to micromanage[.]”
`
`73.
`
`As far as Plaintiff is aware, Merkert’s August 24. 2018 e-mail was not sent
`
`to the other members of the CPR Clinical Team.
`
`74.
`
`On information and belief, at no time prior to December 14, 2018 were the
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`other members of the CPR Clinical Team advised or instructed by Merkert to stop
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`treating patients with 1:1 Pulmonary Therapy; to stop utilizing the G0238 billing code; or
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`to contact Merkert in advance for approval to administer 1:1 Pulmonary Therapy or to
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`use the 60238 billing code.
`
`14
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`
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`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 15 of 39
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 15 of 39
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`75.
`
`After August 24, 2018, and until December 2018, Merkert knew that
`
`Plaintiff was continuing to treat some patients with 1:1 Pulmonary Therapy, and to bill
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`for same with the 60238 billing code.
`
`76.
`
`In addition, after August 24, 2018, and until December 2018, Merkert
`
`knew that the other members of the CPR Clinical Team were continuing to treat some
`
`patients with 1:1 Pulmonary Therapy, and to bill for same with the 60238 billing code.
`
`77. Merkert’s knowledge that Plaintiff and the other members of the CPR
`
`Clinical Team were continuing to treat some patients with 1:1 Pulmonary Therapy and
`
`to bill for same with the 60238 billing code after August 24, 2018, and until December
`
`2018, was based, in part, on Merkert’s regular and contemporaneous access to and
`
`review of patient schedules and records, as well as discussions he had with Plaintiff and
`
`others.
`
`78.
`
`After August 24, 2018, and until December 2018, Merkert tolerated,
`
`accepted and acquiesced in Plaintiffs and the CPR Clinical Team's corresponding
`
`administration of 1:1 Pulmonary Therapy to some patients, and their corresponding use
`
`of the 60238 billing code when they administered 1:1 Pulmonary Therapy.
`
`79.
`
`Plaintiffs and the CPR Clinical Team’s use of the 60238 billing code for
`
`1:1 Pulmonary Therapy was ethical, proper, and in compliance with the Guidelines.
`
`80.
`
`Prior to December 2018, Merkert had meetings with Plaintiff and the CPR
`
`Clinical Team where the subject of treating patients with 1:1 Pulmonary Therapy and
`
`utilizing the 60238 billing code was discussed; and Merkert issued no directive or
`
`instruction at those meetings that the administration of 1:1 Pulmonary Therapy or the
`
`use of the 60238 billing code was to be halted.
`
`15
`
`
`
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 16 of 39
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 16 of 39
`
`81.
`
`St. Luke’s acknowledged in its Answer to Plaintiff’s PHRC Complaint that
`
`after August 24, 2018, and prior to Plaintiff’s complaints of age discrimination, Merkert
`
`made a decision not to discipline Plaintiff for her continued treatment of some patients
`
`with 1:1 Pulmonary Therapy and her corresponding use of the G0238 billing code,
`
`because Merkert “still felt [he and Plaintiff] could work through these coding/billing
`
`concerns and he did not want to blemish [Plaintiff's] employment record so early during
`
`the change and transition from BMHS to St. Luke’s employment."
`
`82.
`
`On or about November 4, 2018, which was before Plaintiff initially
`
`complained to St. Luke’s of age discrimination, St. Luke’s changed Plaintiffs job title
`
`from Manager of Cardiopulmonary Rehab to Physical Therapist Assistant, as a result of
`
`which Plaintiff was no longer a managerial employee; and Plaintiff had the title of
`
`Physical Therapist Assistant from the time the change was implemented until her
`
`employment was terminated on January 8, 2019.
`
`83.
`
`in its Answer to Plaintiff’s PHRC Complaint, St. Luke’s stated that the
`
`change in Plaintiff’s job title that was implemented on November 4, 2018 was not a
`
`demotion or form of disciplinary action, but rather “an organizational decision .
`
`. .to align
`
`[Plaintiff‘s title] with the other Cardiopulmonary Rehab Departments in the St. Luke’s
`
`Network.”
`
`84.
`
`Because the other members of the CPR Clinical Team were non-
`
`managerial employees, Plaintiff should have been held to the same performance
`
`standards and expectations as the other CPR Clinical Team members from November
`
`4, 2018 until December 20, 2018.
`
`16
`
`
`
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 17 of 39
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 17 of 39
`
`E.
`
`Plaintiff’s Protected Activity Under the ADEA and the PHRA
`
`85.
`
`As of November 2018, Plaintiff had formed a reasonable and good faith
`
`belief that from late June 2018 until November 2018, Merkert had discriminated against
`
`her on an ongoing basis because of her age, and that the acts and practices of age
`
`discrimination had caused her to be subjected to a hostile work environment.
`
`86.
`
`Accordingly, on November 15, 2018, Plaintiff sent an e-mail to Rochelle
`
`Schaller (“Schaller"), St. Luke’s Sr. Vice-President of Human Resources, in which she
`
`complained to Schaller that, inter alia, Merkert had “singled [her] out” and had taken
`
`“unwarranted actions against [her] .
`
`.
`
`. on the basis of [her] age,” and that Merkert’s
`
`discriminatory acts were “continuous [and] ongoing” (the “November 15, 2018 e-mail”).
`
`87.
`
`Plaintiff concluded the November 15, 2018 e-mail by informing Schaller
`
`that she wanted to resolve the matter without having to involve the EEOC and the
`
`PHRC.
`
`88.
`
`Schaller received the November 15, 2018 e-mail on the day it was sent,
`
`and she promptly read it and fowvarded it to Jennifer Stehman (“Stehman”), Director of
`
`Human Resources at St. Luke’s Miner’s Campus, for further investigation.
`
`89.
`
`Stehman promptly read the November 15, 2018 e-mail.
`
`90.
`
`The November 15, 2018 e-mail included the following statements by
`
`Plaintiff regarding Merkert’s alleged discriminatory behavior:
`
`0
`
`0
`
`That Merkert had made comments regarding his preference for
`working with younger employees.
`
`That Merkert was treating Plaintiff less favorably than her younger
`co-workers.
`
`17
`
`
`
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 18 of 39
`Case 3:21-cv-01378—MEM Document 1 Filed 08/06/21 Page 18 of 39
`
`0
`
`c
`
`0
`
`That Plaintiff’s Manager title and had been removed, with her pay
`status being changed from salary to hourly.
`
`That Merkert had falsely accused Plaintiff of poor performance.
`
`That Plaintiff was concerned that her job was being unfairly
`threatened and was fearful that Merkert would retaliate against her
`if she reported him.
`
`91.
`
`The November 15, 2018 e-mail constituted protected activity for purposes
`
`of the ADEA and the PHRA.
`
`92.
`
`On November 20, 2018, Stehman met with Plaintiff to discuss the
`
`allegations of age discrimination made in the November 15, 2018 e—mail, and during the
`
`meeting, Stehman asked Plaintiff to provide her with a written statement containing
`
`more details that supported her allegations.
`
`93.
`
`On December 4, 2018, as requested by Stehman, Plaintiff sent a letter to
`
`Stehman via e-mail (dated November 27, 2018), which set forth with greater specificity
`
`the factual basis for Plaintiff’s allegations of age discrimination (the “December 4, 2018
`
`letter”).
`
`94.
`
`The December 4, 2018 letter included the following statements by Plaintiff:
`
`0
`
`0
`
`0
`
`That Plaintiff “was an award-winning employee, and an excellent
`leader in the field of cardiac rehabilitation acknowledged by the
`American Heart Association with a regional award in cardiac
`Excellence and letters of praise from many former patients and
`physicians.”
`
`That Merkert had “singled [Plaintiff] out" for differential treatment.
`taking “unwarranted actions” against her and “treat[ing] [her] much
`differently than [her] younger peers."
`
`That Merkert had commented to Plaintiff, in reference to a younger
`co-worker, “I love when [she] kisses my ass."
`
`18
`
`
`
`Case 3:21-cv-01378-MEM Document 1 Filed 08/06/21 Page 19 of 39
`Case 3:21-cv-01378—MEM Document 1 Filed 08/06/21 Page 19 of 39
`
`0
`
`0
`
`0
`
`0
`
`0
`
`c
`
`0
`
`0
`
`0
`
`0
`
`0
`
`0
`
`0
`
`0
`
`0
`
`That Merkert had stated that he “love[d]” the same younger co-
`worker because she was “like [his] daughter.”
`
`That Merkert had a preference for “young, pretty” women “who he
`[could] treat like a daughter.”
`
`That Merkert had said to Plaintiff, "soon I won’t need you, I will have
`EPIC, you are disposable”.
`
`That Merkert had removed Plaintiff’s Manager title.
`
`That Plaintiff’s pay status had been changed from salary to hourly.
`
`That Plaintiff had been directed by Merkert to “swipe out” before she
`had completed her work one day.
`
`That Merkert had threatened to take away Plaintiff’s clinical
`responsibilities for providing Cardiopulmonary Rehab.
`
`That Plaintiff had been denied a promised pay raise while her
`younger co-workers had been given raises.
`
`That Merkert had boasted to Plaintiff about giving a younger co-
`worker a pay raise.
`
`That Merkert had deleted information from Plaintiff’s timesheet, as a
`result of which only $37 had been deposited into her bank account
`for the pay period ending on November 3, 2018.
`
`That Merkert had “disrespected” Plaintiff in front of patients, making
`her feel “demoralized and worthless," while not treati
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