Wei v. Commonwealth of Pennsylvania, Pennsylvania Department of Health (Padoh) et al

REPLY BRIEF re Second MOTION for Summary Judgment of Wei's COUNTER STATEMENT OF MATERIAL FACTS

M.D. Pa.September 5, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MING WEI No. 1:11-CV-00688 Plaintiff Judge Jones v. Magistrate Judge Schwab COMMONWEALTH OF PENNSYLVANIA, et al. Defendants JURY TRIAL DEMANDED PLAINTIFF’S REPLY FOR HIS COUNTER STATEMENT OF MATERIAL FACTS Plaintiff Ming Wei (“Wei”) pursuant to Local Rule 56.1 has filed his counter statement of material facts (Doc.306, ¶¶70-135); Defendants have filed their response (Doc.311); Wei provides his reply in here. For the purpose to easily follow, Wei cites his counter material facts and Defendants (“D”)’ responses (italic) with single line space first, and following Plaintiff (“P”)’s reply to each fact with double line space (Note: the record of At. 1 have been updated as Doc. 306-1; the records of At. 2 have been updated as Doc. 306-2). Wei has learned from Defendants that the facts must be deemed admitted if the opposition party fails to cite the record supporting its denial statement (Doc.300, p7). Local Rule 56.1 holds “Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements”. A majority of Wei’s counter facts must be deemed Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 1 of 24 admitted because Defendants do not dispute, or do not cite the record to dispute, or do not cite a relevant record to dispute. Wei replies those disputes that Defendants cites the records in the following. However, he also selectively replies some of their denials though they are based on Defendants’ bald assertion only. 70. PADOH had the policies to pre-schedule the meeting in the outlook, document the assignments, expectations, update, events and the outcomes. Urdaneta required the email communication when she became Wei’s supervisor (At.1, ¶2, 3, 4, 5; At.2, pp5-7, 170-1). D70. Denied as immaterial. Additionally, the record evidence cited by Wei does not support these allegations. In addition, Wei has produced earlier documentation to the Court indicating that Defendant Urdaneta stated in a discovery response that when she was Wei’s supervisor, she requested that staff members schedule meetings in Outlook, not that they were required to be scheduled in Outlook. Doc. 201-1, p. 34. P70. Defendants fail to cite any record to support their denial so all the fact must be deemed admitted. Defendants also fail to identify which document of Wei’s citations does not support his fact. Defendants do cite page 34 in Doc. 201-1 and argue that Urdaneta “requested” rather than “required”. However, one of means of “request” is “politely or formally ask for” in English dictionary. http://www.dictionary.com/browse/request. So a “request” from a supervisor is almost equal to “required”. 71. PADOH ordered Wei must adhere to CDC guidelines for HIV/AIDS surveillance (At.2, p8), in which the paper copies with identities should not be brought out of HIV security area #911 in Health Welfare Building (See At.2, p10, ¶¶8, 10&11, 14; At.1, ¶6 ). Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 2 of 24 D71. Denied. Wei could have printed out the required information, put it in an envelope, and brought it to Defendant Urdaneta’s office. This would have satisfied CDC guidelines for safety and security since Urdaneta’s office was secure, and Departmental employees do this on a regular basis. (Doc. 300-1 at 148-49 ¶¶45- 50; 506-09 (Hr’g Tr. pp.61:5-64:9)). Furthermore, Defendant Urdaneta testified that she went to Wei’s office on July 2, 2007 and verbally asked him to show her proof of his progress on the 2005 backlog assignment. Id. P71. As Defendants admitted in ¶97, HIV policies must be in writing (See Doc. 306-2, p9). However, Defendants could not cite any written policy to support its denial but use Urdaneta’s false statement after termination. Indeed, Defendants denied their own contemporaneous documents, See: “14. Requirement 19: Surveillance information must have personal identifiers removed (an analysis dataset) if taken out of the secured area or accessed from an unsecured area” (Doc. 306-2, p10 for DEF003566). Obiri’s 2006 order [with a copy to Urdaneta] to define HIV Secure Work Area was within Room 911 (Doc. 95-3, p9) but Urdaneta’s office was within Room 933 (Doc. 306-2, p61). Both her predecessor Rankin and Wei in 2005 concerned the office (it later became Urdaneta’s office) was insecure (See Doc. 306-2, p42). Urdaneta fabricated that Wei showed her different data with different formats (Doc. 301-1, p506) when she walked to his office in July 2, 2007 after her receiving his 5:23 PM email. However, she admitted no evidence that she presented in Wei’s office after 5:25 PM (See 208-1, pp34) in the day. So it was impossible for her to reach and read a file in his office within 2 minutes. In Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 3 of 24 addition, she also admitted “I didn't know what it’s supposed to show in the [2007 BIT draft] format” (Doc. 301-1, p517:24-5) under question. 72. To prevent the hacker accessing the confidential data and documents, all HIV confidential information must be kept in the off-net computers within the HIV security area, and all confidential information must be encrypted before it is emailed (At.2, p10, ¶¶ 3,4 & 15; At.1, ¶7). D72. Denied. Wei could have printed out the required information, put it in an envelope, and brought it to Defendant Urdaneta’s office. This would have satisfied CDC guidelines for safety and security since Urdaneta’s office was secure, and Departmental employees do this on a regular basis. (Doc. 300-1 at 148-49 ¶¶45-50; at 506-09 (Hr’g Tr. pp.61:5-64:9)). P72. Defendants fail to cite any related record to support their denial. Indeed, Defendants just denied their own document. See also4 & 15 Requirement 21: “Confidential surveillance data or information must be encrypted before electronic transfer” (Doc. 306-2, p9 for DEF003566). Urdaneta’s false claim about her office for HIV data occurred after Wei’s termination. PADOH written policy never included her office as a part of HIV security area (Doc. 95-3, p9). The claim also is unrelated to Hacker issue. 73. In 2007, Wei reported PADOH his hearing reduction due to illness, and emailed to emphasize the written communication (See At.2, p16; At.1, ¶9). D73. Denied. The record evidence cited by Wei does not support these allegations. The evidence cited by Wei is an email by Wei that was sent to another single worker only. There is no evidence that the email was sent to the entire Department or that Wei “reported” a reduction in his hearing in any significant way. P73. Defendants fail to cite any record to support their denial. Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 4 of 24 Defendants’ argument about HR official Mr. Dino Perricone as a “single worker” but not PADOH is ridiculous. He represented PADOH to issue a PDC document (See Doc. 95-2, p34) and a document to Unemployment Compensation (See Doc. 95-3, p26-7). From Defendants’ logic, all PADOH’s documents should be not from PADOH because they were signed by individuals only. 74. Since 1980s, 16 field offices including 6 district offices under the jurisdiction of PADOH collected AIDS cases into HARS database and transferred them to HIV team (or central office) for the EDM (At.1, ¶12). D74. Denied that these allegations are material. 75. Wei’s EDM responsibilities included receiving and processing the HIV/AIDS data [from field offices before Dec. 2005, but BIT after Nov. 2005], making sure that they were accurate and valid, reporting to the CDC (At.1, ¶14). D75. Admitted. Additionally, processing HIV lab reports was also part of Wei’s job duties. Defendant Obiri assigned Wei the job of unifying the backlog HIV lab reports in the fall of 2005. Doc. 200-3, ¶ 8, Attachment A. Defendant Urdaneta gave Wei a direct order to complete the 2005 backlog assignment by April 30, 2007. Doc. 200-7, p. 53-54. P75. Additionally, Obiri’s Sept. 2005 assignment was to convert all lab reports into HARS format (Doc.306-2, p76). However, PADOH decided converting those reports into HARS to be error in Nov. 2005 (see Doc. 306-2, p79) so it abandoned the task after it moved Wei to another project in Oct. 2005. Urdaneta’s April 2007 assignment was to process 600,000 reports of year 2005 into 2007 BIT draft format (Doc. 300-2, p165) regardless of by any means. They were total different tasks. Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 5 of 24 For example, BIT spent 4 months to convert 150 reports from single provider format into HARS format (Doc.306-2, p71) and failed to complete the task; several staffers in HIV team spent 4 months to convert 362 records with HARS format into PA NEDSS (See Doc.70-1, ¶6) and failed to complete the task. Based on the Defendants’ logic, transferring those records from one format to another format should not be considered as another task, or at least should be so easy, and they were certainly insubordinate for failing to complete the tasks. 76. A HIV/AIDS case could have up to hundreds of HIV lab reports. However, the error should occur when over 10 HIV detection results were entered into a case in the HARS database (See At.2, p39, #11). Each lab report in 2007 BIT draft format contains one lab result (At.1, ¶15). D76. Denied that these allegations are material. 77. The case requirement of CDC was to contain an earliest positive viral report regardless of the numbers of reports in the database (At.1, ¶16). D77. Denied that these allegations are material. 78. PA NEDSS database could contain thousands of reports in each case (At.1, ¶16). D78. Denied that these allegations are material. 79. Uploading data is a common tool for the date management. Over 10, 000 reports could be uploaded into HARS within a minute if the reports have the values for all of the required fields and they are formatted properly (At.1, ¶18). D79. Denied that these allegations are material. 80. In April 2004, PADOH began to move HIV/AIDS data from HARS to NEDSS (Doc.70-1, ¶10). PADOH decided to spend $millions for BIT to convert HARS HIV/AIDS data into PA NEDSS (At.2, p41; ¶19). BIT completed the task Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 6 of 24 D80. Denied that these allegations are material. 81. PADOH ordered Wei to prepare sending all HIV/AIDS data to James Rank’s office, for BIT’s test and conversion on March 2005 (At.2, p42-4). D81. Admitted. 82. Because some variables in PA NEDSS didn’t exist in HARS format, BIT used the default values for these variables in the conversion of 2005 HARS HIV/AIDS data into PA NEDSS (At. 1,¶23). D82. Denied that these allegations are material. 83. PADOH documented Wei’s role in the new HIV/AIDS data in PA NEDSS as “receive [HIV/AIDS] data extract from Deloitte, process of extract to generate calculated variables, upload file to shared-drive [for BIT], transfer data to CDC“(At. 2, p13) since Jan. 2006. D83. Admitted in part; denied in part. Admitted that Wei’s responsibilities were summarized as indicated in January 2006. It is denied that this was an exclusive list of all of Wei’s responsibilities during his tenure. Processing HIV lab reports was also part of Wei’s job duties. Defendant Obiri assigned Wei the job of unifying the backlog HIV lab reports in the fall of 2005. (Doc. 300-1 (Obiri ¶8)), Attachment A. Defendant Urdaneta gave Wei a direct order to complete the 2005 backlog assignment by April 30, 2007. (Doc. 300-1, p. 198-99 (Hr’g Tr. pp.53:19- 54:7)). P83. See Reply in ¶75. In addition, Wei’s position description from Defendants also does not have any content to process HIV lab reports (Doc.300-2, pp18-9). 84. BIT (through its contractor Deloitte) sent the HIV/AIDS data extract files to Wei weekly, Wei processed them into HARS, got the calculated fields and returned them by uploading the new files to shared-drive for BIT weekly; and transfer individual data to CDC monthly (At. 1,¶27). D84. Admitted in part; denied in part. It is admitted that these allegations reflect one of the duties that Wei was supposed to perform. Denied that the evidence cited by Wei supports these allegations. The cited evidence is an email by Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 7 of 24 Wei with self-serving inadmissible hearsay indicating that the files have been processed and placed onto a secure drive. The evidence does not demonstrate that the files actually were processed or placed onto a secure drive, or that Wei performed these duties every week as indicated. P84. Defendants fail to cite any record so all the fact must be deemed admitted. In addition, Defendants fail to conduct a reasonable inquiry into the facts according to Federal rule 11. Based on PADOH’s workflow, BIT needed the file to import into PA NEDSS weekly. If BIT (its contractor Deloitte) did not receive the processed file, its staff should email Wei asking for the data (See Doc. 209-1, p71). 85. PADOH defined Wei’s major role in HIV/AIDS data as “periodic evaluation of data integrity and completeness” (At. 2, p13) for quality control in the era of PA NEDSS. D85. Admitted in part; denied in part. Admitted that Wei’s responsibilities have been described as indicated. It is denied that the evidence cited by Wei indicates that this was his primary role or that this was an exclusive list of all of Wei’s responsibilities during his tenure. Processing HIV lab reports was also part of Wei’s job duties. Defendant Obiri assigned Wei the job of unifying the backlog HIV lab reports in the fall of 2005. (Doc. 300-1 (Obiri ¶8)), Attachment A. Defendant Urdaneta gave Wei a direct order to complete the 2005 backlog assignment by April 30, 2007. (Doc. 300-1, p. 198-99 (Hr’g Tr. pp.53:19-54:7)). P85. See Reply in ¶75. 86. Since Oct. 2005, Philadelphia decided it didn’t utilize PA-NEDSS as its HIV reporting system; it also decided to convert about 5,000 code-based HIV (non-AIDS) cases that it collected in previous years to name-based cases, and send them to PADOH then transfer to CDC (At. 1,¶32). D86. Denied that these allegations are material. 87. PADOH assigned several staffers to de-duplicate Philadelphia transfers and brought these new cases into PA NEDSS since Jan. 2006. PADOH in May 2006 interrupt the task after the staffers entered about 362 records (Doc.70-1, ¶6). Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 8 of 24 Then the task for handling Philadelphia cases and de-duplication was assigned to Wei ((At. 1, ¶33). D87. Denied that these allegations are material. 88. In April, 2007, Ostroff stated that he didn’t accept any oral agreements and Wei was highly qualified for the job in the meetings (At. 1, ¶34). D88. Denied that these allegations are material. Additionally, Plaintiff has previously submitted documents demonstrating that Ostroff denied stating that Wei was doing a high quality job and has no recollection of accepting any “oral agreement”. (Doc. 207-4 at p.40). P88. The record of “Ostroff has no recollection of accepting any “oral agreement” does not contradict the fact he stated that he didn’t accept any oral agreements. 89. In April, 2007, Urdaneta assigned Wei to write a Backup Plan for HIV/ AIDS data transfer (At.2, pp 59-60), Wei completed the task (At. 1, ¶35). Urdaneta didn’t take any responsibilities from Wei in the email. D89. Admitted in part, denied in part. It is admitted that the evidence demonstrates that Urdaneta requested Wei present a backup plan. It is denied that The email demonstrates Wei completed this task. It is denied that any of these allegations regarding the tasks that Wei did complete are material. P89. Defendants fail to cite any record so all fact must be deemed admitted. Defendants fail to conduct a reasonable inquiry into the facts in their server. Wei emailed his plan to Urdaneta and he did not receive her dispute (See Exhibit (“Ex.”) 1). 90. In June 8, 2007, Urdaneta assigned Wei an extra task for data analysis of aggregate data for a federal grant application (At.2, pp 56-8), Wei completed the task (At. 1, ¶36). Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 9 of 24 D90. Admitted in part, denied in part. It is admitted that the evidence demonstrates that Urdaneta sent an email to request an update from Wei regarding his submission of data for a request. It is denied that the email demonstrates Wei completed this task. It is denied that these allegations regarding tasks that Wei did complete are material. P90. Defendants fail to cite any record so all fact must be deemed admitted. Defendants fail to conduct a reasonable inquiry into the facts. They should have Wei’s email of his result to Urdaneta (See Ex. 2) in their server. 91. In July, 2007 Urdaneta assigned Wei to delete non-cases from the extracts before they were sent to CDC (At.2, p61), Wei completed the task (At. 1,¶37). D91. Admitted in part, denied in part. Admitted that the evidence demonstrates Urdaneta sent an email to Wei indicating he should “eliminate cases in HARS with no known AIDS or HIV confirmation.” It is denied that the email demonstrates Wei completed this task. It is denied that these allegations regarding tasks that Wei did complete are material. P91. Defendants fail to cite any record so all fact must be deemed admitted. Defendants fail to conduct a reasonable inquiry into the facts. For example, Defendants filing document (Doc. 300-1) showed Wei reported Urdaneta that he not only deleted 140 non-cases (p731) but also identified 16 cases to be mistakenly classified as non-cases (p754). 92. From Apr. to Aug. 2007, Wei provided three trainings (See Doc.207-4, pp63-66) and an orientation (At.2, p 62) of transfers to Obiri and Allen. (At. 1, ¶38). D92. Denied. The evidence cited by Wei does not support these allegations. It is denied that these allegations regarding tasks that Wei did complete are material. 93. Among HIV team members in 2007, Drs. Obiri, Leequan Ray, Aimee Ferraro, Martin Ngokino, Benjamin Muthambi; Ms. Bonnie Krampe, Allen and Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 10 of 24 Lehman have been trained in the SAS program. They have been trained in the SAS courses outside PADOH (At. 1,¶39). D93. Denied that these allegations are material. 94. In response to Wei’s question “PADOH and SCSC have repeatedly claimed that plaintiff failed to convert HARS HIV/AIDS data files as the main reason to terminate him.” Defendants wrote “PADOH never asked Ming Wei to convert HARS data into PA NEDSS. That was a team effort that included staff from the Bureau of Epidemiology, Bureau of Information Technology, field staff and the PADOH’s contractor, Deloitte.” (See Doc. 70-1, ¶11; At.1, ¶40). D94. Admitted that Wei wrote the quoted words as part of an interrogatory to Defendants, and that Defendants responded to the interrogatory, in part, with the response quoted by Wei. By way of further answer, as previously submitted to the Court by Wei, Defendant’s full response explaining the reason for Wei’s termination states: PADOH never asked Ming Wei to convert HARS data into PA NEDSS. That was a team effort that included staff from the Bureau of Epidemiology, Bureau of Information Technology, field staff and the PADOH’s contractor, Deloitte. Ming 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. Ming Wei was repeatedly instructed by several staff from the Bureau of Epidemiology that his assignment was to convert the backlogged data. PADOH does not understand the reference to “Ex. 18, p4” as used in this interrogatory and therefore cannot complete its response to this interrogatory. PADOH has found an exhibit previously used by Ming Wei in his state civil service appeal that is identified as AP3. AP3 is an e-mail from Bob Giallo to Ming Wei, dated May 18, 2006, 4:44 PM, and it states in that that “the HIV/AIDS Lab backlog project charter has been finalized by Christina. . . .” A “Project Charter” is a statement of the scope, objectives and participants in a project. It provides a preliminary delineation of roles and responsibilities, and outlines the project objectives. It serves as a reference for the future of the project. This document does not imply that a project ever occurred or was executed. This project never did begin, therefore it was never completed. The project never began because Ming Wei never completed the unification of the backlog data. Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 11 of 24 Doc. 70-1 at p. 15-16. 95. In a staff meeting dated Nov. 2, 2006. PADOH emphasized that the staffers should choose to follow their job description in case of that their supervisors had different instructions from their job descriptions (Doc. 207-1, ¶1). D95. Denied. The record evidence cited by Wei does not support these allegations. Wei does not cite an actual Department policy. Instead, Wei cites to his declaration stating his subjective interpretation of Department policy which cites to his amended complaint with an email again stating Wei’s subjective interpretation of Department policy. Additionally, Wei’s subjective interpretation of Department policy is immaterial to his claims. P95. Defendants fail to cite any record to deny so the fact must be deemed admitted. The Commonwealth written Policy does require “Ensure the accuracy of the employee's position description and essential job functions; update as appropriate.” (Doc. 306-2, p6). “A public employee cannot blindly follow a supervisor's order which the employee knows or has reason to know violates the law” Geissler v. Board of Commissioners of Upper Dublin Township, 76 Pa.Cmwlth. 426, 463 A.2d 1284 (1983). 96. Obiri on July 10, 2006 ordered Wei to document his process of HIV/AIDS cases in a new log, Wei did so until his termination, PADOH continues doing so (At.1, ¶5). D96. Admitted in part, denied in part. Admitted that the evidence demonstrates Obiri sent an email to Wei indicating he should “review the log and complete tables for the extracts [Wei] has processed in the past and future ones.” It is denied that the email demonstrates Wei completed this task. It is denied that these allegations regarding tasks that Wei did complete are material. P96. Defendants fail to cite any record so all fact must be deemed admitted. Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 12 of 24 Defendants fail to conduct a reasonable inquiry into the facts. They should have Wei’s email of his log to Obiri (See Ex. 3) in their server. 97. HIV policies must be in writing (See At.2, p9). Workspace for individuals with access to HIV surveillance information must be within HIV security area (See At.2, p10, ¶8). D97. Admitted in part, denied in part. It is admitted that the document, titled “CDC Technical Guidance for HIV/AIDS Surveillance Programs: Security and Confidentiality Guidelines – Requirements Check List” states that such “policies” for security and confidentiality guidelines for HIV/AIDS surveillance programs “must be in writing”and that“[w]orkspace for individuals with access to surveillance information must [] be within a secure locked area.” It is denied that this statement means that all possible Department policies affecting any employee who deals with HIV/AIDS data as part of the person’s duties must all be in writing. It is denied that these allegations are material. 98. In 2003 to 2005, the labs chose different format to send data to PADOH. A majority of labs used the formats like spreadsheet with the field names on the top of each column (See Doc.208-1, p68) (At. 1, ¶46). D98. Denied as immaterial 99. Some labs used the formats without column delimiter and without the field names on the top, similar to the 2007 BIT draft format (At. 1, ¶47). The 2007 BIT draft format has not column delimiter and has not field names on the top (See Doc. 208-1, p69). D99. Denied as immaterial 100. About 1,600 potential cases (or pre-HARS cases) cases from 2003 and 2004 lab reports remained to be investigated by Dec. 2005 (See At. 1, ¶51). D100. Denied as immaterial 101. In March, 2005, PADOH had Dr. Geroncio Fajardo shifted HIV lab reports to BIT for testing and converting them into PA NEDSS (See At.2, p73). Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 13 of 24 D101. Denied as immaterial 102. Giallo wrote “I know that the ELR lab data will be processed by my ELR team as part of the NEDSS 8.0 plan” in his March 2005 email (See At.2, p71). D102. Denied as immaterial 103. The responsible staff was Wei, Allen and Lehman to process and unify lab reports in Obiri’s Sept. 14, 2005 written order (Doc. 207-5, p4). D103. Denied. The evidence cited by Wei demonstrates that Wei was the principle responsible staff, and that Lehman and Allen served as support staff. P103. Defendants fail to cite any record so the fact must be deemed admitted. The three responsible staff Wei, Allen and Lehman was written by Obiri. Defendants just denied their own document (Doc. 207-5, p4). The principal is not necessary to be a sole responsible staff. For example, Obiri was the principal of HIV team between Aug 2005 and Nov. 2006 (See ¶1); he did not do a majority of the work of HIV team by himself and he was not the sole person to be responsible for all of those works (Doc. 207-5, p4) (HIV team was separated into 3 units with Obiri, Muthambi, and Wei as the principals after Nov. 2006, See Docs. 207, 222, 235, ¶40). Furthermore, Obiri in his Oct. 13, 2005 email has actually revoked Wei’s status as the principal (See Doc. 306-2, p74). He appointed Allen as the point person to process 2005 reports with future BIT format on Nov, 22, 2005 (See Doc. 306-2, p81; Doc. 306-1, ¶71) after moving Wei to another task on Oct. 2005. 104. Wei outlined his future work in the era of PA NEDSS in a reporting email required by Obiri on Dec. 22, 2005 (At.2, pp82-3). This is consistent with his tasks documented by PADOH in Jan 2006 (See At.2, p13). Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 14 of 24 D104. Denied as immaterial. By way of further answer, the evidence cited by Wei does not support these allegations that Wei’s email to Obiri with proposals was a “required report” or that this December 2005 was consistent with his tasks documented in a January 2006 document. 105. From Jan. to Nov. 2006, Wei asked Giallo and Obiri about their progresses of BIT’s format and conversion for backlog lab reports (At. 2, pp84-8). D105. Admitted in part, denied in part. It is admitted that Wei asked Giallo about the progress on the backlog reports. It is denied that Wei directed these questions to Obiri, who was only copied on the email. By way of further response, the evidence cited by Wei reinforces that these email requests by Wei directly to Giallo were inappropriate because Wei had been instructed to send his questions to NEDSS through his superiors. (Doc. 306-2 at 84). P105. Defendants fail to conduct a reasonable inquiry into the facts by citing an Obiri’s Nov. 2006 email to retrospectively judge Wei’s May 2006 email to be inappropriate. Indeed, Wei used the similar pattern of Obiri’s April 10, 2006 order about processing HIV/AIDS data to communicate with BIT (NEDSS team) “In the event that no extract file is available in the folder, you should send an e-mail inquiry on the same day to Deloitte staff [NEDSS team] or responsible party for generating the extract stating that the extract file is not available in the secure folder. I should be copied on such e-mail” (See Doc. 95-2, pp9-10). 106. Giallo in May, 18, 2006 wrote “We still have 2.5 labs that have not been brought onboard since the HIV migration to NEDSS. They are Quest Horsham, Mayo, and UPMC's CD4 tests. Quest is going to be a big backlog of data to process and it's been very challenging working with them. But first Quest needs to get their message in an acceptable format” for 2006 HIV lab reports (At.2, p86). D106. Admitted that the quoted text was part of a larger email sent by Giallo to Wei to respond to an email with questions by Wei; it is denied that these Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 15 of 24 allegations are material. By way of further response, the evidence cited by Wei reinforces that these email requests by Wei directly to Giallo were inappropriate because Wei had been instructed to send his questions to NEDSS through his superiors. (Doc. 306-2 at 84). P106. See reply to ¶105. 107. Giallo in May, 18, 2006 wrote “this project is bigger than originally anticipated and required a complete NEDSS team evaluation and effort for this project.” for backlog lab reports (At.2, p86). D107. Admitted that the quoted text was part of a larger email sent by Giallo to Wei to respond to an email with questions by Wei; it is denied that these allegations are material. By way of further response, the evidence cited by Wei reinforces that these email requests by Wei directly to Giallo were inappropriate because Wei had been instructed to send his questions to NEDSS through his superiors. (Doc. 306-2 at 84). P107. See reply to ¶105. 108. Obiri in an Aug. 25, 2006 meeting stated that BIT continued to be responsible for backlog lab reports, its work encountered some challenges, and it tried to resolve those problems (At.1, ¶81). D108. Denied. The evidence cited does not support these allegations. Wei cites his declaration which cites to his amended complaint. P108. Defendants have received a copy of the tape of Aug. 25, 2006 meeting (Doc.306-1, ¶83) and should not continue to make this bald denial. . 109. PADOH didn’t email a copy of its plan to process HIV backlog lab reports without encryption to Wei until Nov. 21, 2006 (See At.2, p90). D109. Denied as immaterial. It is also denied that the evidence cited supports these allegations. It is not clear what is being forwarded in the referenced email. 110. The 2006 plan for backlog lab reports (See At.2, pp19-40) stated that conversion of HARS [HIV/AIDS] data and pre-HARS data was completed in Dec. 2005, they were not a part of backlog data anymore (See At.2, pp23-4). Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 16 of 24 D110. Denied as immaterial. 111. Giallo stated that BIT was told to process the original conversion, and it tried to do so but found the workload was too big to be completed by itself so it developed a plan for future action in Dec. 1, 2006 meeting (At.1, ¶93). D111. Denied as immaterial. 112. Urdaneta and William Miller discussed the work shouldn’t be completed earlier than 2008. Miller stated each record still cost 100 [dollars] in Dec. 1, 2006 meeting (At.1, ¶98). D112. Denied as immaterial. 113. While 2006 plan for backlog lab reports required that BIT was still responsible for developing a format, the Plan required HIV team to convert and upload the backlog lab reports into PA NEDSS in its area (At. 2, pp23-5). D113. Denied. The evidence cited by Wei does not support these allegations. The pages cited by Wei reference converting files, but do not address BIT or uploading reports. P113, Defendants fail to conduct a reasonable inquiry into the facts, the pages that Wei cited do address BIT or uploading reports. For examples: BIT’s role, “PA-NEDSS will develop and provide a CSV single file format for the HIV/AIDS program area to convert the laboratory report backlog data that they desire to be in PA-NEDSS” (Doc. 306-2, p23, 3.2. paragraph 1) Upload, “Messages will be uploaded only by the HIV/AIDS program area staff to PA-NEDSS…” (Doc. 306-2, p24, 4.1. paragraph 3) 114. Giallo specially pointed out those difficult files such as H7 files were the garbage and his team could not get the valuable information from them in Dec. 1, 2006 meeting (At. 1, ¶104). Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 17 of 24 D114. Denied as immaterial. 115. PADOH ordered Wei should send the note to report his progress on processing 2005 HIV reports by June 27, 2007 (See At.2, p104). D115. Admitted. 116. PADOH on May 23, 2007 ordered Wei must “determine the number of 2005 HIV/AIDS records that could be converted in the PA-NEDSS system” in his assignment (Doc. 300-2, p14). D116. Denied that the evidence cited supports these allegations. 117. Wei followed the instructions and sent the notes through email to his progress of processing 100 easy files, 200 easy files and cumulative 420,000 reports (or 430 files) (See At. 2, pp108-110) by July 2, 2007 after his cleaning the data (At. 1, ¶132). D117. Denied. The evidence cited does not support these allegations. By way of further answer, the emails cited by Wei assert that he had transferred files, not that he had successfully “determined the number of” “records that could be converted”. P117. Defendants fail to conduct a reasonable inquiry into the facts. Wei also stated that “I do not receive PA NEDSS final format yet” in the emails (Doc. 306-2, pp109-10). Because PADOH’s 2006 plan stipulated the data missed the required field should not be converted (See Doc.306-2, p25, paragraphs 1 and 6) and Giallo stated the required fields might be changed when BIT finalized the format (See Doc. 306-2, p96; Doc. 306-1, ¶106). So it was impossible to determine the number of records that could be converted into PA NEDSS before PADOH finalizes the required fields and format. Wei tried to select a word other than “convert” to Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 18 of 24 express his work and he selected “transfer”. Defendants did understand them, when Urdaneta responded his report of 200 easy files; her sole question was “What do you mean with "easy files"?” then declared “Your dateline for completion of this assignment has passed” (See Doc. 208-1, p66), PADOH also documented Wei completed about 400,000 reports in July 3, 2007 PDC minute (Doc. 306-2, p113). 118. Wei wrote to Giallo that he would like the draft format to be finalized as the formal format; Giallo responded the draft format was for getting an estimated number only as decided by Dec. 1, 2006 meeting; BIT didn’t finalize its format for the conversion yet in a March 1, 2007 email (See At.2, p96). D118. Admitted in part, denied in part. It is admitted that Giallo responded, in part, that the draft format referenced in Wei’s email was a draft, could change, and was to attain an estimated number of records that could be converted for the project. The cited evidence does not support the remainder of these allegations. P118. Defendants fail to conduct a reasonable inquiry into the facts. Giallo also wrote “It seems like you are putting too much detail into this Draft CSV format. In your previous email you said "Once we decide the data in CSV format met your request, it will be not changed any mare."” (Doc. 306-2, p96). 119. On Aug, 24, 2007 PDC, Wei stated it was impossible to “determine the number of 2005 HIV/AIDS records that could be converted in the PA-NEDSS system” (Doc. 300-2, p14) without a BIT formal format because the PADOH stipulated the reports didn’t meet the required field in the format should not be converted in its plan (See At. 1, ¶144; At. 2, p25, paragraphs 1 and 6). D119. Admitted in part, denied in part. It is admitted that Wei’s impression was that he was unable to complete his duties as assigned. It is denied that the evidence cited by Wei supports these allegations. 120. Wei on Aug. 27, 2007 emailed additional information to Burnhauser and Strizzi, then Strizzi wrote a few words and re-emailed to Burnhauser and others Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 19 of 24 (See At.2, pp127-30). D120. Admitted. 121. Before SCSC hearing, PADOH filed a Motion to Quash Subpoena in part and for a Protective Order, it not only refused providing the key documents to SCSC but also claimed Wei wasn’t allowed to present the documents (At. 1, ¶159). D121. Denied as stated and denied as immaterial. Defendants filed a motion to quash a subpoena for Defendants to produce confidential documents, which occurred after learning that Wei was already in possession of confidential documents which should not have been removed from the Department. (Doc. 306-2 at 150-58). P121. These documents were sent to Wei without encryption and could be downloaded outside PADOH (See a sample, Doc.306-2, p90), so PADOH did not consider they were confidential based on CDC guideline for the encryption of the confidential document. Indeed, PADOH also exposed all of them to the court. 122. In SCSC hearing, the witnesses watched the hearing to the point when they were called as witnesses, so their testimonies were not free from the any suggestions happened in the hearing. This was different from the civil court trial that the witnesses have to wait outside courtroom until they are called (At. 1, ¶163). D122. Denied as stated and denied as immaterial. Wei could have requested to sequester the witnesses who were not named defendants. Wei had a full and fair opportunity to call witnesses and present documentary evidence. (Doc. 300-1 at pp.446 et seq.). P122. Defendants fail to conduct a reasonable inquiry into the facts; Doc. 300- 1 at p446 has nothing about the issue to sequester. So the fact must be deemed admitted. 123. PADOH didn’t require people writing to it before they come for the job information (At. 1, ¶168). Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 20 of 24 D123. Denied as stated. The Department may not generally require people writing to request permission before visiting in person to obtain job information; however, Wei has admitted in prior documents to the Court that a Department employee reported to the police that Wei was making threats, even though Wei asserts that he was only visiting to obtain job information. (See Doc. 225 ¶46; Doc. 95 ¶256). P123. Wei accused “PADOH John Does lied about plaintiff’s making threat so he suffered from police’s stopping” (Doc. 95 ¶256). However, Defendants has already admitted to the police that Wei did not make any threat in their submission (See Doc. 300-1, p166). 124. PADOH claimed that it denied Wei’s job application based on his 2007 discipline of “Unsatisfactory work performance’’ (At. 1, ¶169). D124. Denied as immaterial. 125. Wei took over 2 hours daily on average for sick leaves from May 16 to June 29, 2007 (See At. 1, ¶127). D125. Denied as immaterial. Defendants cannot ascertain what Wei means by “job application” and the cited evidence does not provide any further detail. Therefore, this allegation is denied. 126. Wei took over 2 hours daily on average for the leaves without pay from July 3, 2007 to Aug. 23, 2007 (See At. 1, ¶141). D126. Denied as immaterial. 127. In Jan. 2007, Urdaneta assigned Wei doing an analysis for a FY07 funds under the Ryan White, Wei completed the task (See At. 1, ¶192, At. 2, pp172-3). D127. Denied as immaterial. It is denied that any of these allegations regarding the tasks that Wei did complete are material. 128. The meeting notice of DMAMM (Doc. 207-4, p69) didn’t contain any Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 21 of 24 mandatory information in comparison with other mandatory notice (See 2 samples of the mandatory notices with “mandatory” word (At. 2, pp160-1). D128. Denied as immaterial. 129. Urdaneta didn’t have any email about the DMAMM meeting to Wei before the March 19, 2007 meeting (See At. 1, ¶179). D129. Admitted in part, denied in part. It is admitted that the two references meeting notices do not contain the word “mandatory”. By way of further response, the meetings notices were sent by Obiri, directly to Wei and one or two other people, to set up a work meeting to discuss their progress, which could not be done without their presence. The other two meeting notices that Wei uses as a comparison contain a meeting notice for training and a meeting notice with the Deputy, which could possibly be carried out without Wei’s presence – thus, those meeting notices specified that Wei’s attendance was required. P129. Defendants fail to cite any record so the fact must be deemed admitted. 130. The Dec. 1, 2006 meeting agreement was for BIT to provide a draft format so HIV team could get an estimated number of the cases among 2005 lab reports that would be possibly converted into the PA NEDSS (At. 1, ¶105). D130. Denied. Wei was instructed by Urdaneta that he was required to attend the monthly meetings. (Doc. 300-1 at 685). Furthermore, Wei was required to attend meetings because his presence was necessary for his input regarding his progress on a group project with his coworkers. (Doc. 300-1 at 684-85). P130. Defendants fail to cite any relevant record so the fact must be deemed admitted. They cited Urdaneta’s Mar. 19, 2007 4:17 PM email (Doc. 300-1 at 684- 85) after Mar. 19, 2007 DMAMM meeting that is unrelated to Dec. 2006 meeting. 131. When PADOH started to assign Wei to extract 2 hours daily for processing all 2005 HIV lab reports into 2007 BIT draft format in April 2007, Wei suggested all staffers in HIV team set aside two hours to the task, PADOH denied his suggestion with the reason of that they were different (At. 1, ¶119). D131. Admitted. Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 22 of 24 132. Urdaneta testified that she didn’t remember Wei in 2007 provided the estimate of 2005 HIV lab reports to her (Doc. 208-1, p38-9). D132. Denied as stated. The cited evidence reflects that Urdaneta did not remember whether or not Wei had provided his estimates by email for the 2005 HIV reports. It is denied that this evidence demonstrates that Wei had provided those estimates. 133. From times to times, PADOH assigned Wei to lead some projects. Wei had no management authority over other staffers but served as a scientific leader to check whether their products were proper (At. 1, 62). D133. Denied as immaterial. 134. From Oct. 2004 to Mar., 2005, Giallo processed a sample of 150 reports of provider format into HARS format as his priority (See At.1, ¶57; At.2, p71). D134. Denied as immaterial. 135. According to Defendant’s counsel Mr. Michael Harvey’s email dated Nov. 11, 2014, Defendants used two Bates numbering formats to label their documents. One format says “Ming Wei Fed Court Case” along with the number of the document. And the other format says “DEF” followed by the number. (At. 1, ¶202). D135. Denied as immaterial. Respectfully Submitted: Ming Wei 3910 Silver Brook Dr. Mechanicsburg, PA 17050 Phone: (717) 732-2040 mingweiebct@hotmail.com 09/05/2016 Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 23 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MING WEI No. 1:11-CV-00688 Plaintiff Judge Jones v. Magistrate Judge Schwab COMMONWEALTH OF PENNSYLVANIA, et al. Defendants JURY TRIAL DEMANDED PROOF OF SERVICE I hereby certify that I electronically filed a copy of PLAINTIFF’S REPLY TO HIS COUNTER STATEMENT OF MATERIAL FACTS pro se with CM/ECF system, which will send notification of such filing(s) to all parties including Defendants’ counsel of record. Respectfully Submitted: Ming Wei 3910 Silver Brook Dr. Mechanicsburg, PA 17050 Phone: (717) 732-2040 mingweiebct@hotmail.com 09/05/2016 Case 1:11-cv-00688-JEJ-SES Document 312 Filed 09/05/16 Page 24 of 24 1 ming wei From: Urdaneta, Veronica Sent: Tuesday, April 10, 2007 12:03 PM To: Wei, Ming Subject: RE: Backup Plan for HIV/AIDS data transfer Thanks Ming -----Original Message----- From: Wei, Ming Sent: Tuesday, April 10, 2007 10:00 AM To: Urdaneta, Veronica Cc: Wei, Ming Subject: RE: Backup Plan for HIV/AIDS data transfer << File: cdc transfer procedures04_10_07 back up plan.doc >> Veronica, Here is CDC transfer plan with combination of Philadelphia cases. Thanks! Ming Wei, MD, MPH Epidemiologist, Coordinator of data management and electronic reporting, HIV/AIDS section Bureau of Epidemiology Pennsylvania Dept. of Health Health & Welfare Bldg. Rm. 909 Harrisburg, PA 17120 Tel: 717-346-4501 Fax: 717-783-6975 E-mail: NOTICE OF CONFIDENTIALITY: This e-mail, including any attachments, is intended only for the use of the individual or entity to which it is addressed and may contain confidential information that is legally privileged and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, you are notified that any review, use, disclosure, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please contact the sender by reply e-mail immediately and destroy all copies of the original message. -----Original Task----- Subject: Backup Plan for HIV/AIDS data transfer Start date: Thu 4/5/2007 Due date: Tue 4/10/2007 Status: Not Started % Complete: 0% Total work: 0 hours Actual work: 0 hours Requested by:Urdaneta, Veronica Exhibit 1 Case 1:11-cv-00688-JEJ-SES Document 312-1 Filed 09/05/16 Page 1 of 1 From: Wei, Ming Sent: Wednesday, June 13, 2007 2:36 PM To: Urdaneta, Veronica Subject: RE: submission of HIV non-AIDS data from code-based areas for the Minority AIDS Initiative Dr. Urdaneta, The password for the data is PAHIVDATA. Thanks! Ming Wei -----Original Message----- From: Wei, Ming Sent: Wednesday, June 13, 2007 2:32 PM To: Urdaneta, Veronica Subject: RE: submission of HIV non-AIDS data from code-based areas for the Minority AIDS Initiative Dr. Urdaneta, Enclosed please find a copy of data for the grant. Because the exe file is difficult to get though the email. I have renamed the end of file with PGP, when you try to open the file, please rename back the exe. Thanks! Ming Wei Example Data Submission Letter for Minority AIDS Initiative *** Please modify as necessary and specify any additional information that might be unique to your submission. *** June 15, 2007 Douglas H. Morgan, MPA Director, Division of Service Systems HIV/AIDS Bureau Health Resources and Services Administration 5600 Fishers Lane, Room 7A-55 Rockville, MD 20857 Dear Mr. Morgan: Please find the attached requested data tables containing HIV non-AIDS data for Pennsylvania and applicable metropolitan areas for the use in allocating FY07 funds under the Ryan White Treatment Modernization Act of 2006. I have reviewed these data and certify that they were compiled using a methodology consistent with that described in the CDC/HRSA guidance document “Technical Exhibit 2 Case 1:11-cv-00688-JEJ-SES Document 312-2 Filed 09/05/16 Page 1 of 2 Guidance for Submission of HIV non-AIDS Data under the Ryan White HIV/AIDS Treatment Modernization Act of 2006 with Addendum of May 23, 2007 for the Minority AIDS Initiative Grant Program. The data table has been encrypted using a PGP self-decrypting format. The password will be emailed to you separately. If you have questions or require additional information please contact [list appropriate contacts here] Sincerely, State Epidemiologist Enclosure: HRSAHIVdataFY07_Pennsylvania.exe Exhibit 2 Case 1:11-cv-00688-JEJ-SES Document 312-2 Filed 09/05/16 Page 2 of 2 ____________________________________________ From: Wei, Ming Sent: Thursday, July 20, 2006 11:14 AM To: Obiri, Godwin Subject: RE: Documenting PA-NEDSS Extracts and Reports Dr. Obiri, I have made some wordy changes in the tables according to our discussion. Thanks! << File: NEDSSreport.xls >> Ming Wei, MD, MPH Epidemiologist, Coordinator of data management and electronic reporting, HIV/AIDS section Bureau of Epidemiology Pennsylvania Dept. of Health Health & Welfare Bldg. Rm. 909 Harrisburg, PA 17120 Tel: 717-346-4501 Fax: 717-783-6975 E-mail: NOTICE OF CONFIDENTIALITY: This e-mail, including any attachments, is intended only for the use of the individual or entity to which it is addressed and may contain confidential information that is legally privileged and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, you are notified that any review, use, disclosure, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please contact the sender by reply e-mail immediately and destroy all copies of the original message. -----Original Message----- From: Obiri, Godwin Sent: Thursday, July 20, 2006 10:42 AM To: Wei, Ming Subject: RE: Documenting PA-NEDSS Extracts and Reports Dr. Wei, Please make changes based on our discussion this morning. Thanks, Godwin -----Original Message----- From: Wei, Ming Sent: Wednesday, July 19, 2006 3:58 PM To: Obiri, Godwin Subject: RE: Documenting PA-NEDSS Extracts and Reports << File: NEDSSreport.xls >> Dr. Obiri, Enclosed please find two tables for either CDC extract or Whole database extract. Exhibit 3 Case 1:11-cv-00688-JEJ-SES Document 312-3 Filed 09/05/16 Page 1 of 2 Hope it will meet the standard that we discussed in the meeting in 07/11/2006 about Documenting PA-NEDSS Extracts and Reports. Thanks! Ming Wei, MD, MPH Epidemiologist, Coordinator of data management and electronic reporting, HIV/AIDS section Bureau of Epidemiology Pennsylvania Dept. of Health Health & Welfare Bldg. Rm. 909 Harrisburg, PA 17120 Tel: 717-346-4501 Fax: 717-783-6975 E-mail: NOTICE OF CONFIDENTIALITY: This e-mail, including any attachments, is intended only for the use of the individual or entity to which it is addressed and may contain confidential information that is legally privileged and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, you are notified that any review, use, disclosure, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please contact the sender by reply e-mail immediately and destroy all copies of the original message. Exhibit 3 Case 1:11-cv-00688-JEJ-SES Document 312-3 Filed 09/05/16 Page 2 of 2