ZAJACS v. ARMSTRONG COUNTY MEMORIAL HOSPITAL

Filing 39

MEMORANDUM ORDER denying 34 Motion to Compel and granting 38 Motion to Quash, as explained therein. Signed by Judge Terrence F. McVerry on 1/12/12. (mh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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) 2:11-cv-280
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MARK ZAJACS,
Plaintiff,
v
ARMSTRONG COUNTY MEMORIAL
HOSPITAL,
Defendant.

MEMORANDUM ORDER
Pending before the Court are PLAINTIFF’S MOTION TO COMPEL (Document No. 34)
filed by Plaintiff Mark Zajacs (“Zajacs”) and DEFENDANT’S MOTION TO QUASH THE
SUBPOENAS DIRECTED TO DAVID LEMONICK, M.D. AND ACMH PATIENT “BLE”
(Document No. 38) filed by Defendant Armstrong County Memorial Hospital (“ACMH”).
Defendant filed a response and brief in opposition to the motion to compel (Document No. 37).
Because both motions address the same underlying facts and Zajacs’ position is set forth in his
own motion, it is not necessary that he file a response to Defendant’s motion to quash.
Accordingly, both motions are ripe for disposition. Oral argument is not warranted.

Factual and Procedural History
This is an age discrimination case. Zajacs was employed as a CT Technologist at ACMH
prior to being fired. He avers that ACMH’s stated reasons for his termination were pretextual
and that the real reason for his discharge was age discrimination.
Counsel have been unable to amicably resolve a discovery dispute. Plaintiff wants to
“poke holes” in the reason cited by ACMH for terminating Zajacs’ employment, namely that he
failed to advise and obtain the written consent of pregnant patients prior to performing CT scans,
in violation of ACMH policy. Plaintiff’s counsel seeks: (1) production of an Event Report Form
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prepared by Zajacs on June 18, 2010; (2) the medical records of the patient involved in the
incident; (3) a deposition of the patient; and (4) a deposition of Dr. Lemonick, the attending
physician at the time of the incident. Plaintiff’s counsel has not provided an explanation of why
or how this discovery would advance his case, other than a conclusory statement that “who said
what to whom” during the incident is “critical.”
The first issue is now moot because the Event Report Form has been produced. The
Event Report Form, which is in Zajacs’ own handwriting, describes an incident on June 18, 2010
which involved a pregnant patient. Zajacs did not inform the patient that her pregnancy test was
positive, nor did he obtain a signed release from her. Instead, based on a phone conversation
with ER Nurse David Cribbs, who stated that “Dr. Lemonick wanted her scanned anyway” and
would “talk to her when she gets back to ER,” Zajacs simply performed the CT scan. On page 2
of the Event Report Form there is a note, purportedly from Department Supervisor Marcia
Green, which states: “I discussed this with Dr. Backstrom and we reported this to our radiation
safety officer.”
ACMH has submitted a copy of Policy No. 1208 (“Radiation Protection for Female and
the Pregnant Patient”), which provides, in relevant part: “If the Referring Physician decides the
imaging is to be done regardless of pregnancy the patient has to give consent by signing her
name on the appropriate form.” (Emphasis added). The Policy also provides that all female
patients of childbearing age must be specifically asked about the possibility of pregnancy and all
patients in this age group must be protected by lead shielding. If there are any doubts, the
Radiologist and Radiation Safety Officer must be notified.
As set forth in Defendant’s discovery responses (see, e.g., Document No. 37-1), in June
2010 an unnamed physician directed Zajacs to report that he had performed a CT scan on a

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pregnant patient without telling her she was pregnant and without shielding her. Upon
investigation, ACMH discovered a pattern and practice by Zajacs of not recording whether or not
patients were pregnant and not obtaining a pre-scan signed release form. Defendant contends
that it discharged Zajacs “because of blatant policy violations.” ACMH notes that as a result of
four prior disciplinary actions, Zajacs had been placed on a “last chance agreement” on January
13, 2010, by which he was subject to immediate discharge for any violation of ACMH policy.

Discussion
Defendant vigorously opposes the proposed discovery as irrelevant and in violation of the
patient’s privacy rights. ACMH contends that Plaintiff is attempting to divert attention from the
core issue in this case, i.e., whether Zajacs was terminated due to age discrimination. The Court
concludes that the discovery sought by Plaintiff is not justified.
It is well-established that in order to discredit an employer's proffered reason for
terminating employment, an employee “cannot simply show that the employer's decision was
wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated
the employer, not whether the employer is wise, shrewd, prudent, or competent.” Fuentes v.
Perskie, 32 F.3d 759, 765 (3d Cir. 1994). As applicable here, it is not relevant whether ACMH
made a wise or correct decision to punish Zajacs for the June 18 and similar incidents, or
whether Zajacs had a justifiable basis for failing to follow ACMH policy. Rather, Zajacs must
show that ACMH used the June 18 incident as a pretext for age discrimination, for example, by
presenting a “comparator” who committed a similar infraction but was not discharged. As it is
undisputed that the incident occurred, the actual underlying facts are of virtually no benefit to
Zajacs in the context of this case.

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ACMH has taken the legal position that Zajacs was terminated based on: (1) its
investigation of the incident; (2) its discovery of a “pattern and practice” by Zajacs of failing to
advise and obtain sign-offs from pregnant patients; and (3) his status on a “last-chance
agreement.” Thus, it is apparent that the June 18 incident, by itself, was not the sole cause of his
discharge. Moreover, the specific discovery which Plaintiff seeks to pursue is not reasonably
calculated to lead to relevant evidence. Zajacs has not identified any information the patient
might be able to shed on these topics, and the Court cannot conceive of any such information.
Further, it appears that Zajacs did not have any direct communications with Dr. Lemonick
regarding the CT scan on June 18, but instead, spoke with Nurse Griggs. In any event, according
to the Policy, approval to perform the scan was required to be given by the Radiologist and/or
Radiation Safety Officer, not the attending physician. Because the Court concludes that the
requested discovery is clearly not relevant, it need not grapple with the weighty patient privacy
concerns raised by ACMH.

In accordance with the foregoing, PLAINTIFF’S MOTION TO COMPEL (Document
No. 34) is DENIED and DEFENDANT’S MOTION TO QUASH THE SUBPOENAS
DIRECTED TO DAVID LEMONICK, M.D. AND ACMH PATIENT “BLE” (Document No.
38) is GRANTED.
SO ORDERED this 12th day of January, 2012.

BY THE COURT:
s/Terrence F. McVerry
United States District Judge

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cc:

Neal A. Sanders, Esquire
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Dirk D. Beuth, Esquire
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Brian D. Balonick, Esquire
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