The opinion of the court was delivered by: Matthew W. Brann United States District Judge
(Magistrate Judge Blewitt)
A. Procedural History*fn1
On August 11, 2008, plaintiff, Thomas D. Kimmett, instituted the instant action by filing a complaint. Complaint, ECF No. 1. Kimmett amended his complaint; then on March 5, 2009, Kimmett filed a second amended complaint. Second Amended Complaint, ECF No. 35. Kimmett had been employed as a Senior Deputy Attorney General in the Financial Enforcement Section (hereinafter "FES") of the Pennsylvania Office of the Attorney General.
The second amended complaint names as defendants the Pennsylvania Office of the Attorney General (hereinafter "OAG"), plaintiff's employer; Thomas Corbett, who, at the time of the matters referenced in the complaint, was Pennsylvania's Attorney General, and now, at the time of the filing of the instant Memorandum, is Pennsylvania's Governor; Brian Nutt, William Ryan, Lou Rovelli, Mike Roman and Jill Keiser, all employees of the OAG; Steve Brandwene, the Chief of the FES until his retirement in the spring of 2007; and Does 1-10, Does 1-5 are all employees of the OAG and Does 6-10 are employees of other agencies in the Pennsylvania state government. All of the aforementioned individuals were sued in their official and individual capacities. All defendants are represented by the OAG, thus in the instant memorandum, the undersigned will refer to all defendants jointly as "the defendants."
The second amended complaint contains three counts. Count I is brought pursuant to 42 U.S.C. § 1983 against defendants Corbett, Nutt, Ryan, Rovelli, Brandwene, Roman, Keiser and Does 1-10. It is a First Amendment retaliation claim. Kimmett asserts that the defendants violated his First Amendment rights of freedom of speech and to petition the Government for redress of grievances for failure to promote and, ultimately, terminating Kimmett. Count II is brought pursuant to the Pennsylvania Whistleblower Law, 43 P.S. § 1421, et. seq. against all defendants. Count III is a defamation claim against all defendants.
On March 17, 2009, the defendants filed a partial motion to dismiss. Defendants' Motion to Dismiss, ECF No. 39. On September 29, 2009, Magistrate Judge Thomas M. Blewitt filed a report and recommendation, recommending that the motion be granted in its entirely. Report and Recommendation, ECF No. 52. Both plaintiff and defendant filed objections to the 2009 report and recommendation. The Honorable John E. Jones III issued an order on December 1, 2009, adopting the report and recommendation in part and rejecting in part. Order, ECF No. 61.
Specifically, Judge Jones dismissed the OAG; plaintiff's claims seeking monetary damages from the defendants in their official capacities were dismissed; plaintiff's claims in Counts II and III seeking equitable relief, including a prospective injunction, against the defendants in their official and individual capacities were dismissed; plaintiff's claims for equitable relief in Count I against defendants in their individual capacities were dismissed; Count III was dismissed as to defendants Corbett, Ryan, Nutt, Rovelli and Roman; Counts II and III were dismissed as to Brandwene; and John Does 1-10 were dismissed without prejudice.
At this point in time, the remaining causes of action are, as follows: Count I is proceeding as to defendants Corbett, Nutt, Ryan, Rovelli, Brandwene*fn2 , Roman and Keiser. Count II is proceeding as to defendants Corbett, Nutt, Ryan, Roman, Keiser and Rovelli. Count III is proceeding as to defendant Keiser.
B. Report & Recommendation
The defendants filed a motion for summary judgment on July 16, 2010. Defendant's Motion for Summary Judgment, ECF No. 79. The plaintiff filed a motion for partial summary judgment on July 16, 2010. Plaintiff's Motion for Partial Summary Judgment, ECF No. 86. Accordingly, Judge Blewitt prepared an one-hundred-seventy-eight page report and recommendation on June 24, 2011. Report and Recommendation, ECF No. 177. Defendant filed objections, an opposing brief and a reply brief. Defendant Objections, Opposing Brief and Reply Brief, ECF Nos. 182, 183, 185, 186 and 188. Plaintiff filed objections, an opposing brief and a reply brief. Plaintiff's Objections, Opposing Brief and Reply Brief, ECF Nos. 184, 187 and 189.
The action was transferred to the undersigned on January 17, 2013, and is now ripe for disposition.
The magistrate judge recommended that the Court grant Defendants' Summary Judgment Motion (Doc. 79) with respect to Plaintiff's First Amendment claim, and that the Court deny Plaintiff's Partial Summary Judgment Motion (Doc. 86) on liability with respect to his First Amendment claim. It is also recommended that the Court decline to exercise pendent jurisdiction over Plaintiff's state law Whistleblower claim. Further it is recommended that the Court enter Judgment in favor of Defendants and against Plaintiff with respect to Plaintiff's First Amendment claim, and that the Court close this case. Report and Recommendation, ECF No. 177 at 176.
For reasons unbeknownst to the court, the magistrate judge neglected to include defendants Brandwene and Keiser and the defamation count in his analysis that formed the basis for his recommendation. Additionally, the magistrate judge did not set forth the correct standard for summary judgment motions. As discussed below, the standard changes slightly when there are cross-motions for summary judgment. The court notes that for these reasons and others discussed later in the instant memorandum, the undersigned is unable to adopt the report and recommendation of the magistrate judge in full. The instant memorandum and order takes into consideration all defendants and counts, as discussed in the final paragraph of the procedural history section above.
C. Objections to the Report & Recommendation
When objections are filed to the report and recommendation of a magistrate judge, the district court makes "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made." 28 U.S.C. § 636(b)(1)(C); United States v Raddatz, 447 U.S. 667, 674-75; 100 S.Ct. 2406; 65 L. Ed. 2d 424 (1980). The court may accept, reject or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 675; see also Mathews v Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
The defendants object to the report and recommendation of Judge Blewitt as follows. Defendants assert that the magistrate judge erred in concluding that all of Kimmett's speech was "citizen" speech; by concluding that there is a triable issue of fact as to whether defendants knew of Kimmett's conversations with Rich Hudic, Mike Kane and Assistant United States Attorney Brandler; in how he applied the Pickering, infra, balancing test; in rejecting paragraphs 59, 67, 138, 139, 141, 142, 169, 170, 171, 185, 186, 189 of defendants statement of material facts; in failing to recommend that summary judgment be granted on the First Amendment claim to Brandwene and Keiser; and in failing to recommend that the court decline to exercise pendant jurisdiction as to the defamation claim against Keiser.
The plaintiff objects to the report and recommendation of Magistrate Judge Blewitt as follows. Kimmett asserts that the magistrate judge erred in using Elrod and Branti, infra, to determine if Kimmet was a government "policymaker," as both of those cases are political affiliation cases, not speech/petition clause cases; by not determining the correct test for a "policymaker" and applying it to Kimmet; in viewing the facts in the light most favorable to the defendant as opposed to plaintiff; and in his application of the Pickering balancing test.
The court is adopting, and incorporating by reference the facts as stated by the magistrate judge, with the exception of those paragraphs specifically objected to by defendants, as noted above. Report and Recommendation, ECF No. 177 at 5-152.
To summarize, the material, undisputed facts, are as follows. Plaintiff, Thomas D. Kimmett, an attorney and accountant, was hired in November 2006 as a Senior Deputy Attorney General in the Financial Enforcement Section (hereinafter "FES") of the Commonwealth of Pennsylvania's Office of the Attorney General. The other parties to this lawsuit, the defendants, and their positions, are as follows. Thomas W. Corbett, Jr., at the relevant time, Pennsylvania's Attorney General, now Governor of the Commonwealth of Pennsylvania; William H. Ryan, Jr, First Deputy Attorney General; Brian Nutt, former Chief of Staff; Louis J. Rovelli, Executive Deputy Attorney General; Michael Roman, FES Chief; Stephen Brandwene, a former FES Chief; and Jill Keiser a FES Administrative Officer.
The FES is a civil law division of the OAG. The FES was responsible for collecting debts, taxes and accounts due to the Commonwealth of Pennsylvania. State agencies, boards, commissions and universities would refer debts owed to them to the FES for collection. The responsibility for the collection of debts was split. FES would attempt to collect some debts itself, and the OAG contracted with private collection agencies (hereinafter "PCAs") for collection of other debts.
As part of their contract with the OAG, the PCAs would receive a commission on the amounts they collect.*fn3 Regarding accounts that the PCA was responsible for collecting, sometimes the debtor would pay the debt to the PCA, and sometimes it would bypass the PCA and pay the FES/OAG directly. When the latter occurred, if the ...