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Wise v. Commonwealth of Pennsylvania Dep't of Transportation

September 23, 2010

ROBERT WISE, PLAINTIFF,
v.
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, JOSEPH SZCZUR, CAROL COLLINS, AND DAVID ENICK, DEFENDANTS.



The opinion of the court was delivered by: Conti, District Judge

MEMORANDUM OPINION

Introduction

Pending before the court is a motion for summary judgment (Docket No. 23) filed by the Commonwealth of Pennsylvania Department of Transportation ("PennDOT"), Joseph Szczur ("Szczur"), Carol Collins ("Collins"), and David Enick ("Enick," and together with PennDOT, Szczur, and Collins, "defendants"). Defendants seek summary judgment in their favor with respect to all claims asserted by Robert Wise ("plaintiff" or "Wise"). Plaintiff's claims are based upon alleged retaliation after he engaged in protected speech. Plaintiff brings claims for: (1) retaliation in violation of his First Amendment right to freedom of speech under the United States Constitution, pursuant to 42 U.S.C. § 1983; and (2) retaliation in violation of the Pennsylvania Whistleblower Law, 43 PA. CONS. STAT. §§ 1421, et seq. After considering the submissions of the parties, defendants' motion will be denied with respect to both claims because genuine issues of material fact exist concerning whether defendants retaliated against plaintiff in violation of § 1983 and the Whistleblower law.

Factual Background

A. Plaintiff's Investigation Into Co-Workers' Waste

PennDOT hired Wise in May 1980. (Joint Concise Statement of Material Facts ("J.C.S.") (Docket No. 44) ¶ 3.) During the relevant time period, plaintiff was employed as an equipment operator. (Id.) PennDOT has an office in Greensburg, Pennsylvania. (Id. ¶ 1.) Although Wise did not work in the Greensburg office on a daily basis, Julie Monteparte ("Monteparte") and Wise became aware of an inordinate amount of time Barbara Smith ("Smith") and Mark McKay ("McKay"), both PennDOT employees, spent socializing in the Greensburg office. (Id. ¶ 4.) Wise and Monteparte became concerned taxpayer money was being used to subsidize the time McKay and Smith spent socializing during work hours. (Id. ¶ 9.) Smith was Monteparte's immediate supervisor for a portion of the time relevant to this action. (Id. ¶ 6.)

Wise asked Monteparte to keep a record of McKay's activities in the Greensburg office. (J.C.S. ¶ 53.) Wise asserts he would have asked Monteparte to keep a similar record for any foreman, if the same concerns were raised against that foreman. (Defs.' App. (Docket No. 23), Ex. 19 ("Wise Dep. Docket No. 23") at 71-72.) Wise felt compelled to conduct an investigation into McKay's actions, because co-workers had expressed concerns about McKay to Wise, who had strong connections with the American Federation of State, County, and Municipal Employees council ("AFSCME union"). (Pl.'s App. (Docket No. 37), Tab B ("Wise Dep. Docket No. 37") at 64a-65a.) Wise's father, Roy Wise, was the council director of the AFSCME union. (Id.) The relationship between McKay and Smith, who was married to another man, was the subject of widespread rumor among PennDOT employees. (Pl.'s App. (Docket No. 37), Tab C ("Enick Dep. Docket No. 37") at 142a; Pl.'s App. (Docket No. 39), Tab G ("Collins Dep. Docket No. 39") at 344a.) Wise recommended PennDOT compare McKay and Smith's government-issued cell phone records, examine their mailings to each other, and compare their leave and training records. (J.C.S. ¶ 70.)

Wise's investigation into McKay's conduct yielded information concerning a trip McKay took to Aruba while on sick leave, the utilization of two PennDOT trucks for personal use, and the abuse of overtime pay. (Wise Dep. Docket No. 37 at 63, 71-73; Pl.'s App. (Docket No. 38), Tab F ("Szczur Dep. Docket No. 38") at 303a-04a; Defs.' App., Tab 11 Ex. C ("Wise's Commonwealth Employee Witness Statement Docket No. 23").) Dave Mersing, an assistant manager, told Wise that McKay was on the Aruba trip. (Wise Dep. Docket No. 37 at 73.) Shortly thereafter, Monteparte informed Wise that McKay was on sick leave. (Id.) As a result of her participation in the investigation, Monteparte received a written reprimand on March 29, 2006 for divulging confidential information regarding McKay's payroll and leave records. (Defs.' App., Ex. 21.)

As early as 2000 or 2001, Wise expressed concerns to Westmoreland County managers about the amount of time McKay and Smith spent together. (Wise Dep. Docket No. 23 at 65-66.) Szczur, the district executive for Wise's district, stated the amount of information an employee should gather to support an allegation of perceived waste to a supervisor, county manager, or him was never communicated to PennDOT employees. (Pl.'s App., Tab F ("Szczur Dep. Docket No. 38") at 298a.) PennDOT encouraged employees to report concerns about waste and misconduct, even if the concerns were later proved to lack merit. (Szczur Dep. Docket No. 38 at 243a.) On May 5, 2005, Szczur, the district executive for district 12-0, and Karl Ishman, district executive for district 11-0, issued a memorandum encouraging employees to report workplace improprieties in response to a local television exposé featuring PennDOT employees conducting personal business or otherwise not performing PennDOT business during their work hours. (J.C.S. ¶ 11.) Districts 11-0 and 12-0 were the districts in which PennDOT employees relevant to this lawsuit were employed. (Id.)

In or around July 2005, Wise provided Enick, the Westmoreland County maintenance manager, with specific information, generated by Monteparte's observations, about Smith and McKay. (Id. ¶¶ 16, 19.) Enick, however, did not provide Wise with feedback concerning the investigation of McKay. (Id. ¶ 20.) Wise subsequently delivered to Szczur specific information about Smith and McKay -- the same information he provided to Enick. (Id. ¶ 20.) After receiving the information, Szczur held a meeting with Wise concerning the allegations of waste against McKay and Smith. (Id. ¶ 21.) Due to his dissatisfaction with the outcome of the meeting, Wise contacted the secretary of PennDOT -- the agency's top administrator. (Id.¶ 22.) Wise took this step because the secretary had previously issued letters to PennDOT employees inviting personal calls and letters to him concerning allegations of abuse and misconduct. (Pl.'s App., Tab D ("Enick Dep. Docket No. 38") at 210-11a; Pl.'s App. (Docket No. 39), Tab I at 455a.) According to an email authored by Collins, a labor relations analyst, Szczur wanted to read Wise the "riot act" for contacting the secretary. (Pl.'s App., Tab I, Wetzel Dep. Ex. 7 at 485a.)

B. Defendants' Alleged Retaliatory Actions

On or before January 25, 2006, Szczur held a second meeting with Wise, during which Szczur ordered Wise to submit a written witness statement and all documentation he possessed concerning McKay. (Wise Dep. Docket No. 37 at 54-55a.) Wise complied with the order and submitted several written witness statements and documentation concerning McKay. (Id.) After the meeting, Wise and Monteparte received a memorandum dated February 15, 2006 notifying them that they were under investigation for: (1) falsifying PennDOT records or providing false information; (2) loafing or other abuse of time during work hours; and (3) interfering with an employee's performance of duties by talking or other distractions. (Pl.'s App. (Docket No. 39), Tab I Ex. 5 at 491a.) Enick led the investigation into Wise's conduct. (Pl.'s App. (Docket No. 39), Tab I Ex. 6 at 497a.)

Following the investigation into Wise's conduct, PennDOT determined disciplinary action was not warranted. (Pl.'s App., Tab I Ex. 8 at 459a-60a.) While Enick did not believe Wise prepared investigative documentation concerning McKay during work hours, he believed Wise violated other work rules which warranted disciplinary action. (Enick Dep. Docket No. 38 at 215a-16a.) Enick's belief that Wise should be disciplined was contrary to PennDOT's decision. (Id.) Dale Wetzel, chief of labor relations, stated discipline was not warranted because Wise did not violate any PennDOT rule. (Wetzel Dep. Docket No. 39 at 437a.)

Enick believed Wise required an advanced form of discipline, or "shock and awe" discipline, to stop Wise from using PennDOT resources to conduct a personal vendetta against McKay. (Enick Dep. Docket No. 38 at 196d.) Enick wrote an email on March 14, 2006, three weeks after the predisciplinary conference, venting his frustration that Wise's discipline was being delayed and circumvented by authorities in Harrisburg. (Pl.'s App., Tab I ("Wetzel Dep. Docket No. 39 Ex. 10") at 486a.) Enick's frustrations stemmed from his belief that he had the "goods" on Wise, and failing to discipline Wise would prevent Enick from controlling Wise's next move. (Id.) Enick feared Wise would "grow stronger if left unpunished." (Id.)

In an email dated April 12, 2006 sent from Mellissa Mullen ("Mullen") to Collins and forwarded to Szczur, Mullen stated: "[W]e don't want to put in writing any type of language that appears to violate an employee's right to make good faith reports or to use the tipline [sic] like other employees." (Pl.'s App. (Docket No. 39), Tab I Ex. 9 at 477a.) The next day, April 13, 2006 -- one month after Enick's email -- Enick issued a direct order to Wise. (Szczur Dep. Docket No. 39 Ex. 8 at 459a-60a.) The direct order recognized Wise had not violated the rules for which he was charged. (Id.) The direct order required Wise to seek permission from Enick before entering PennDOT's Greensburg facility. (Id.) Rick Metzler ("Metzler"), Wise's supervisor, stated he required Wise to travel to the Greensburg facility to perform work-related tasks. (Pl.'s App., Tab I ("Metzler verified statement Docket No. 39") at 499a ¶ 6.) Defendants concede plaintiff's job duties required him to visit the Greensburg facility on occasion. (J.C.S. ¶ 32.) After the direct order was issued, Enick instructed Metzler that Wise was not to go to Greensburg for any reason. (Id. ¶¶ 7, 9.) Enick further instructed Metzler to keep "Wise behind and find something for him to do at or out of the Adamsburg stockpile if the other employees had to go to Greensburg for meetings or training." (Id. ¶ 7.)

Wise asserts the direct order prevented him from attending mandatory meetings and training sessions at the Greensburg facility. (J.C.S. ¶¶ 31, 35.) Enick believed mandatory meetings at the Greensburg facility overrode Wise's need to obtain permission to enter the facility, but this belief was never communicated to Wise. (Enick Dep. Docket No. 38 at 217a.) Szczur stated some meetings held at the Greensburg facility were important because they involved safety training, and employees not in attendance would be at a disadvantage in relation to their peers. (Szczur Dep. Docket No. 38 at 264a-65a.) On one occasion after Enick issued the direct order, Wise remained outside the Greensburg facility while it was raining because he did not obtain permission to enter the facility. (Wetzel Dep. Docket No. 39 at 447a-48a.)

Wise's AFSCME union filed a grievance alleging the April 13, 2006 direct order was a form of discipline. (Pl.'s App., Tab I ("Sgro verified statement Docket No. 39") at 506a ¶ 12.) A typical letter of reprimand remains in an employee's personnel file for two years, and such letters can result in imposition of more severe discipline should there be allegations of additional rule infractions. (Id. at 505a ¶ 7.) The direct order, however, remained in Wise's personnel file for four years, and violations of the direct order "[would] be considered insubordination and grounds for disciplinary action." (Id. ¶ 8.) A direct order of this type had never been issued to any other PennDOT employee. (See Id. ¶ 6; Wetzel Dep. Docket No. 39 at 454a; Szczur Dep. Docket No. 38 at 312.)

Wise asserts the direct order prevented him from obtaining maintenance on his truck. (J.C.S. ¶ 31.) Wise contends the direct order discouraged him from applying for promotions because certain duties had to be performed at the Greensburg facility. (Wise Dep. Docket No. 37 at 86a-88a, 106a-07a.) After Enick issued the direct order, Wise thought his assigned workload was more onerous and believed he was the subject of speculation and rumor among co-workers due to his absence from the Greensburg facility. (J.C.S. ¶ 42.) Wise was embarrassed to such a degree that he no longer wanted to go to the Greensburg facility. (J.C.S. ¶ 43.)

Wise asserts PennDOT delayed an application he submitted in July 2006 for conducting an outside business. (Wise Dep. Docket No. 37 at 89a.) Employees were required to file a supplementary employment request form to work outside their PennDOT employment, and PennDOT was obligated to contact an employee within fifteen days if additional information was needed for approval. (Id. at 89a, 94a;) Before Wise filed this lawsuit, PennDOT determined there was no conflict between his PennDOT duties and his outside business. (Wise Dep. Docket No. 37 at 89-94.) Wise's application, however, was lost for over a year. (Wise Dep. Docket No. 37 at 89-94.) Wise failed to include a required affidavit with the form when he filed the application in July 2006. (Defs.' App. (Docket No. 23), Ex. 44 ¶ 4.) PennDOT never notified Wise about the missing affidavit. (Wise Dep. Docket No. 37 at 94a.) Wise filed a second form with the required affidavit on July 3, 2007. (Defs.' App. Ex. 44 ¶ 5.) The supplementary employment request form was approved on August 6, 2007 -- prior to the filing of this lawsuit on November 20, 2007.*fn1 (Id. ¶ 6.) Wise's district human resource officer asserted the lapse in approval did not prevent Wise from conducting business outside his PennDOT employment. (Id. ¶ 7.)

Wise asserts he was not the only PennDOT employee who allegedly experienced retaliation for filing a complaint concerning McKay and Smith. Jennifer Suter ("Suter") complained the relationship between McKay and Smith affected her work, due to the amount of time McKay and Smith spent together during work hours in the Greensburg office. (Pl.'s App., Tab I ("Suter verified statement Docket No. 39") at 501a-02a ¶¶ 5-6.) Suter felt compelled to file a complaint with PennDOT's human resource department because Smith was also romantically involved with one of Suter's subordinates, which affected Suter's job, health, and life. (Id. ¶ 7.) Following her complaint, Suter received a one-day suspension. (Id. ¶¶ 8-9.) Suter alleges PennDOT retaliated against her by making her life difficult. (Id.) Suter asserted, "Through its treatment of me and Mr. Wise, PennDOT has succeeded in creating an ongoing hostile work environment wherein employees are reluctant to report waste and misconduct." (Id. ¶ 11.) Enick asserts Suter was suspended due to inappropriate content on her work computer's hard drive, and not for making the complaint. (Defs.' App., Tab 13 Ex. C ("Enick Dep. Docket No. 23") at 75-76, 84.)

C. Plaintiff's Alleged Personal Feud With Co-Worker

Prior to Enick's investigation into Wise's conduct, Wise told Enick he possessed boxes of investigative materials at home related to McKay and Smith. (Enick Dep. Docket No. 23 at 224-25.) Those materials, along with numerous conversations with Wise concerning McKay and Smith, led Enick to believe Wise was acting on a personal vendetta against McKay and Smith. (Id.) PennDOT's human resource department and Szczur briefed Enick regarding an ongoing feud involving Wise, Monteparte, McKay, and Smith, which dated back to the late 1990s. (Enick Dep. Docket No. 23 at 211.) Enick asserts the vendetta caused turmoil within the Westmoreland County organization and he recommended Wise settle his differences with McKay without involving PennDOT. (Enick Dep. Docket No. 23 at 230.)

On March 28, 2001, Smith filed a reporting data sheet for incidents of workplace violence against Wise. (Defs.' App., Ex. 15.) Wise denied the incident complained of took place and asserts no disciplinary action was taken against him. (Pl.'s Resp. to Defs.' Statement of Material Facts (Docket No. 34) ¶ 46.) On March 6, 2006, Smith filed a claim for a stress-related work injury, stating two employees were permitted to harass and threaten her, causing undue stress and aggravation and creating an unsafe and hostile work environment. (J.C.S. ¶ 74; Defs.' App., Ex. 25.)

Enick thought Monteparte was a "very diligent worker" who never "goofed-off." (Enick Dep. Docket No. 38 at 222a.) Wise's employee performance reviews were consistently positive. (Pl.'s App., Tab I Exs. 2-4 at 461-75a.)

Standard of Review

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the nonmoving party, "the pleadings, discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c).

The nonmoving party must point to specific affirmative evidence in the record, rather than rely upon conclusory or vague allegations or statements. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Concrete evidence must be provided for each element of each of the claims, and the evidence must be such that a reasonable fact-finder could find in the nonmoving party's favor at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "A nonmoving party, like plaintiff, must 'designate specific facts showing that there is a ...


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