The opinion of the court was delivered by: Honorable Sylvia H. Rambo
Before the court is Defendants Pennsylvania Turnpike Commission ("PTC"), Joseph G. Brimmeier and George M. Hatalowich's, motion for summary judgment. (Doc. 40.) For the reasons that follow, the motion will be granted.
Plaintiff, Robert Wallett, began working for the PTC in August of 1997 as the Director of Maintenance.*fn2 (Defs.' Statement of Material Facts ("SMF") ¶ 1.)
He was originally hired under a Republican administration and at all times relevant to this complaint has be a registered Republican. (Pl.'s SMF ¶ 1.)
In May 2003, Defendant Joseph G. Brimmeier, Chief Executive Officer ("CEO") of the PTC, transferred Wallett from the position of Director of Maintenance to Director of Facilities. (Defs.' SMF ¶ 3.) As Director of Facilities, Plaintiff participated in the consultant selection process when a need for services was identified. (Id. ¶¶ 6, 7.) These services were generally mechanical, electrical, or environmental. (Id. ¶ 8.) When a service was needed, the PTC's Office of Contracts Administration would obtain approval from the Commissioners to solicit letters of interest from contractors hoping to fill the job. (Id. ¶ 9.) When a letter of interest was received, it was submitted directly to the Office of Contract Administration and then forwarded to the Director of the requesting department. (Id. ¶ 11.) As Director of Facilities, Plaintiff would be individual who would receive such letters and, in turn, assign them to staff members to review and summarize. (Id. ¶ 12.) Occasionally, Plaintiff would discuss these summaries with staff members in order to determine which contractor would be the best fit for the job. (Id.) Plaintiff would then send these summaries back to the Office of Contract Administration and they would be placed on the schedule to be discussed during the next meeting of the Technical Review Committee ("TRC"). (Id. ¶ 13.)
The Facilities Department was a section of the Engineering Department, and a TRC was in charge of selecting engineering contractors to recommend to the PTC Commissioners. (Id. ¶ 14.) The TRC, at all relevant times, consisted of Defendants Brimmeier and Hatalowich, the Chief Engineer of the PTC, the Assistant Chief Engineer in the area of expertise in the specific contract, the Manager of Contracts Administration, and an individual appointed by the CEO of the PTC. (Id. ¶ 15.) During his time with the PTC, Plaintiff attended somewhere between four and six such meetings with the TRC. (Id. ¶ 16.) The degree of Plaintiff's participation in these meetings is disputed, but it is agreed that Plaintiff would convey his department's summaries of the applicants and their rankings to the TRC. (Id. ¶ 19; Pl.'s SMF ¶ 19.) Because the contracts in question here were for professional services, contracts were awarded based upon qualifications of the bidders, not necessarily to the lowest bidder. (Id. ¶ 17.)
After Plaintiff presented the application summaries to the TRC, the permanent members of the TRC and Plaintiff would use a ballot to vote on the proposed applicants. (Id. ¶ 20.) The Manager of Contracts Administration would then tally the votes and submit them to the Commissioners. (Defs.' SMF ¶ 21.) The TRC was not told who the winning applicant was, and this decision was not made public until the Commissioners awarded the contract. (Id.) Despite the TRC's recommendation and ranking process, the ultimate selection of an applicant to be awarded a contract was left to the Commissioners themselves. (Id. ¶ 18.) Plaintiff claims that members of the TRC were improperly influenced by Defendants Brimmeier and Hatalowich when ranking applicants. (Pl.'s SMF ¶ 20.)
During Plaintiff's tenure with the PTC, the summaries prepared by the Facilities Department became more general and amounted to nothing more than recitations of the qualifications of candidates. (Id. ¶ 22.) Plaintiff claims this was "intentionally done by [Defendant] Hatalowich and served the purpose of allowing the defendants to influence the votes of the other Committee members more effectively and efficiently by eliminating embarrassing adverse information." (Pl.'s SMF ¶ 22.) Plaintiff believes that he was terminated from the PTC because he failed to recommend firms that were politically connected to Defendants Hatalowich and Brimmeier. (Defs.' SMF ¶ 24.) Defendants claim Plaintiff has this belief because Hatalowich or Brimmeier would, occasionally, suggest additional firms to be added to the list presented to the TRC. (Defs.' SMF ¶ 25.) Plaintiff denies this fact and instead claims
Plaintiff's belief that CEO Bremmeier and/or COO
Hatalowich wanted to fire him is based on the fact that discovery now shows they attempted to fire him in 2003 and again in 2008, plus the fact they were actually telling other members of the TRC who to vote for but did not directly approach Plaintiff to tell him who to vote for because they did not trust him since he was a Republican merit selection from the prior administration and had a record and reputation of following the rules and procedures that had been established to avoid political selection of contractors and consultants. Plaintiff's failure to change and provide support caused the Defendants to revert to their 2003 original plan to remove Plaintiff completely notwithstanding his value as an employee.
(Pl.'s SMF ¶ 25.) Plaintiff cites to nothing in the record to support this broad statement. Plaintiff is only able to state with certainty one firm that he believes was politically connected to Brimmeier and/or Hatalowich and was awarded jobs because of this connection - Orbital Engineering, Inc. ("Orbital"). However, Plaintiff admits that he too had recommended Orbital for certain Facilities Department jobs. (Id. ¶¶ 30, 31.) Furthermore, the last job Orbital was awarded was in 2007, nearly two years before Plaintiff's termination. (Id. ¶ 32.) Plaintiff does not argue that the firms Hatalowich or Brimmeier suggested were unqualified to complete Facilities Department jobs; rather, he believes other firms could do the work more efficiently. (Id. ¶ 37.) Regarding Orbital, Plaintiff's belief that Orbital was inefficient was based on the fact that the company was known to have a high rate of turnover. (Id.)
Plaintiff never complained to either Brimmeier, Hatalowich or anyone else at the PTC about his concerns regarding contract awards, however, he did make a comment to his then supervisor, Al Jansen, regarding PTC hiring practices. (Id. ¶¶ 40, 46, 49, & 56.) Plaintiff concedes that two individuals who had been hired were well qualified applicants, however, Plaintiff argues the PTC should have explored more applicants and that these hires were politically motivated. (Id. ¶¶ 43, 47, 48.) Plaintiff states that he did not ask that corrective action be taken and that he was merely "venting" to Mr. Jansen, not seeking a remedy for his concern that the hirings were politically motivated. (Id. ¶ 40.) Nor was Plaintiff himself applying for these positions. Plaintiff himself claims that he went along with the hirings even though he believed they were politically motived, because he did not want to be a "squeaky wheel," (id. ¶ 55), Plaintiff further states that the only basis he had for thinking both the hiring and his subsequent firing were politically motivated was his personal "belief." (Id. ¶ 55.)
Plaintiff was terminated on May 15, 2009. (Id. ¶ 58.) His termination was based on Brimmeier's decision to eliminate the position of Director of Facilities. (Id. ¶ 59.) Hatalowich played no role in the decision to terminate this position. (Id. ¶ 60.) Brimmeier claims his decision to terminate this position was made "in an effort to move the PTC in a new direction of improved energy policies with a focus on energy conservation initiatives." (Id. ¶ 61.) In addition, Brimmeier stated in his deposition testimony that he was "disappointed in the way that [Plaintiff] was handling  things . . . [and Brimmeier] was not happy with [Plaintiff's] performance and his energy, his dedication to the job, et cetera; that [Brimmeier] believed, you know, a better job could have been done." (Defs.' Ex. 5, Dep. Joseph G. Brimmeier, at 53:15-22.) In response to this statement of material fact and to Brimmeier's deposition testimony, Plaintiff states as follows:
The allegation in paragraph 61 are denied. The Plaintiff had proposed active energy policies and the creating of a job position to monitor and improve energy usage in 2003. This proposal was never responded to in an affirmative fashion. Moreover, CEO Brimmeier stated to Frank Kempf the day before Plaintiff's termination that he had two reasons for reorganization (1) the Plaintiff's conduct in the TRC and (2) the fact that the Plaintiff had not hired a contractor specializing in electrical usage that had been referred by ...