The opinion of the court was delivered by: Judge Sylvia H. Rambo
In this civil rights case, Plaintiff Donald Moyer ("Moyer")alleges that Defendant PA Turnpike Commission ("the Commission") violated 42 U.S.C. § 1983, and the Pennsylvania Whistleblower Act, 43 Pa. Cons. Stat. Ann. §§ 1421-1428, by terminating his employment on May 10, 2007. Before the court is the Commission's motion for summary judgment. The motion is ripe for disposition.
The material facts are not in dispute, and are taken substantially verbatim from the Commission's statement of material facts, which is supported with citations to the record, and which Moyer does not contest.
The Commission is a instrumentality of the Commonwealth of Pennsylvania and is statutorily charged with operating the Pennsylvania Turnpike ("Turnpike"), a 530-mile limited access, multi-lane toll road. (Doc. 26, Def.'s Stat. of Mat. Facts ("SMF") ¶ 1.) Vehicles enter and exit the Turnpike through fifty-seven interchanges. (Id. ¶ 3.) Entrance lanes automatically dispense toll tickets or register E-Z Pass accounts and do not have assigned collectors. (Id. ¶ 4.) Exit lanes are either electronic, in which case a customer drives through the lane and the E-Z Pass account is charged for the toll, or manual, in which case the customer hands a toll collector the toll ticket and pays the fare in cash. (Id. ¶ 5.)
Moyer began employment with the Commission as a temporary toll collector on October 23, 1995. (Id. ¶ 6.) On March 26, 1997, Moyer was promoted to toll collector. (Id. ¶ 7.) At all times relevant hereto, Moyer was represented by Teamsters Local Union No. 77 ("Local 77") for collective bargaining purposes. The terms and conditions of Moyer's employment with the Commission, including the procedures by which the Commission could discipline Moyer, and Moyer's right to appeal any discipline, were covered by a collective bargaining agreement ("CBA") negotiated by the Commission and Local 77. (Id. ¶¶ 8-9.)
The CBA provided for a multi-step grievance procedure to provide an employee with due process in the event an employee is terminated. (Id. ¶ 10.) Pursuant to the CBA, and in accordance with applicable law, Local 77 retained the sole discretion as to whether to file a grievance on behalf of any employee who was disciplined. (Id. ¶ 11.) The grievance procedure in place during the relevant period set forth a four-step grievance procedure, the first three of which were internal to the Commission and the final step being binding arbitration. (Id. ¶ 12.) Local 77 retained the sole right to determine what matters it would move to binding arbitration. (Id. ¶ 13.)
On or about July 15, 2004, Local 77 filed Grievance 04-5-G-15 (1405) ("Grievance 1405") on Moyer's behalf alleging that the Commission had violated the CBA by failing to post or fill a vacancy. (Id. ¶ 15.) On or about July 21, 2004, Local 77 filed Grievance 04-5-G-14 (1406) ("Grievance 1406") on Moyer's behalf, alleging the Commission had substantially interfered with his work and performance and had also created an intimidating, hostile, and offensive work environment. (Id. ¶16.) On August 12, 2004, First Step Hearings were held on Grievances 1405 and 1406. (Id. ¶ 17.) On August 17, 2004, the Commission notified Local 77 that Grievance 1405 was denied. (Id. ¶ 18.) On August 21, 2004, the Commission notified Local 77 that Grievance 1406 was denied. (Id. ¶ 19.) In September 2004, Local 77 appealed these denials to the Second Step. (Id. ¶¶ 20-21.) On May 26, 2005, the Commission notified Local 77 that grievances 1405 and 1406 had been denied at the Second Step because both grievances challenged the Commission's staffing level decisions, which was a right reserved to the Commission under the CBA. (Id. ¶ 25.) There is nothing in the record suggesting that Local 77 further prosecuted these grievances.
On March 30, 2005, Moyer was issued a written warning for incurring daily shortages of $5.00 or more during a thirty-day period. (Id. ¶ 22.) On April 4, 2005, Local 77 filed Grievance 05-5-G-009 (10776) ("Grievance 10776") objecting to the written warning. (Id. ¶ 23.) On May 2, 2005, a First Step hearing was held on Grievance 10776. (Id. ¶ 24.) On June 6, 2005, the Commission notified Local 77 that Grievance 10776 was denied. (Id. ¶ 26.)
On June 14, 2005, Moyer wrote to Pennsylvania State Senator James Rhoades alleging that his supervisor, Joseph R. Bodnar, had discriminated against him. (Id. ¶ 27.) On June 16, 2005, Senator Rhoades forwarded Moyer's letter to John Martino, the Commission's Director of Governmental Affiars, who then forwarded the letter to Patricia Schlegel, the Commission's Director of Human Resources. (Id. ¶¶ 28-29.) On July 6, 2005, Schlegel wrote to Senator Rhoades to inform him that the Commission was investigating Moyer's complaints. (Id. ¶ 30.) Deborah Carpenter, a Commission EEO/ADA Specialist, was assigned to investigate Moyer's allegations of discrimination. (Id. ¶ 31.) Carpenter interviewed Moyer, Bodnar, and all the identified witnesses and concluded that there was no evidence that Moyer had suffered any discrimination.*fn1 (Id. ¶ 32.) Moyer was informed of this decision on November 29, 2005. (Id. ¶ 33.)
In 2006, Moyer contacted the Pennsylvania Auditor General's Office regarding the Commission's new fare collection computer system. (Id. ¶ 34.) Two representatives from the Auditor General's Office met with Moyer and two other Commission employees to discuss their allegations regarding the new Fare Collection computer system. (Id. ¶ 35.) Moyer does not recall whether he informed anyone at the Commission that he contacted the Auditor General's Office. (Id. ¶ 36.)
On April 13, 2006, Local 77 appealed Grievance 10776 -- the grievance dealing with Moyer's alleged toll shortages -- to the Second Step. (Id. ¶ 37.) On April 16, 2006, Moyer was issued a new warning letter for a violation of Fare Collection Bulletin No. 6.1, for having three daily shortages each amounting to $5.00 or more during a thirty-day period. On May 4, 2006, another toll collector at the interchange where Moyer worked wrote on his Tour of Duty Report that Moyer had taken two toll tickets from him to conduct an investigation and had not returned them by the end of his shift. (Id. ¶ 39.) Pursuant to Fare Collection Bulletin No. 6.4, each toll collector must turn in all of his or her tickets at the end of each shift. (Id. ¶ 40.)
On May 22, 2006, Moyer filed a grievance covering two shortages he had been charged with, one of which was for $128.50. (Id. ¶ 41.) Shortages over $25.00 are covered by Fare Collection Bulletin 6.1 - Large shortages. (Id. ¶ 42.) On the same day, Moyer also filed a grievance about faulty air conditioners in his assigned toll booth. (Id. ¶ 43.) Two days later, on May 24, 2006, Moyer was notified that an investigation had been initiated based on his alleged violation of Fare Collection Bulletin 6.4, and a separate investigation had been initiated based on this alleged violation of Fare Bulletin 6.1 -- Large Shortages. (Id. ¶ 44.) That same day, Moyer's supervisor recommended that Moyer be suspended for two days for his violations of Fare Collection Bulletins 6.4 and 6.1. (Id. ¶ 45.) Moyer was notified that he was suspended for two days on June 20, 2006. (Id. ¶ 46.)
On June 29, 2006, Jeffrey H. Gribb, Director of the Office of Special Investigations for the Auditor General's Office, wrote to Moyer to inform him of the actions that the Auditor General's Office intended to take regarding his allegation. (Id. ¶ 47.) Moyer had no further contact with the Auditor General's Office after this. (Id. ¶ 48.)
On May 3, 2007, Moyer was notified in writing that he was required to attend a meeting at the Commission's Eastern Regional Office on May 10, 2007. (Id. ¶ 49.) At the meeting, Moyer had union representation and was informed that if he did not resign his position he would be terminated for theft. (Id. ¶¶ 50-51.) Moyer conferred in private with his union representative and made a phone call. (Id. ¶ 54.) Ultimately, Moyer decided not to resign and was immediately informed verbally that his employment was terminated. (Id. ¶ 56.) According to Moyer's deposition testimony, when he asked the union representative whether he should resign from his position he was told the following:
He told me just sign the paper - they're going to ask you to sign because you can't win, why fight them. They have too much money, that's what he told me. And that's when I asked him that there's no second chance, there's no second chance of filing anything. (Doc. 28, Def.'s Ex. 20, Sept. 8, 2010 Dep. of Donald Moyer ("Moyer Dep.") at 42:17-22.) According to Defendants, Moyer did not specifically ask the union representative at the meeting to file a grievance on his behalf, and he does not recall if any time thereafter he requested the union file a grievance on his behalf. (SMF ¶¶ 57-58.) Moyer disputes this. Both parties point to Moyer's deposition to support their position. In his deposition, Moyer states, in response to questions from the Commission's attorney:
Q: Okay. And you never specifically said to [the union representative at the meeting] I want to file a grievance?
Q: After that meeting and your conversation with the gentleman who turned up on behalf of the union, did you ever contact anyone in ...