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Volek v. Redevelopment Authority of County of Fayette

United States District Court, W.D. Pennsylvania

June 3, 2014

MICHAEL J. VOLEK, Plaintiff,
v.
REDEVELOPMENT AUTHORITY OF THE COUNTY OF FAYETTE, ANDREW FRENCH, AL JEFFRIES and WARREN HATFIELD, Defendants

Page 474

For MICHAEL J. VOLEK, Plaintiff: Gregory T. Kunkel, LEAD ATTORNEY, Kunkel Law Firm, Pittsburgh, PA.

For REDEVELOPMENT AUTHORITY OF THE COUNTY OF FAYETTE, WARREN HATFIELD, AL JEFFERIES, ANDREW FRENCH, Defendants: Trisha A. Gill, LEAD ATTORNEY, Litchfield Cavo, LLP, Pittsburgh, PA.

For OFFICE OF INSPECTOR GENERAL, Movant: Mary W. Fox, PRO HAC VICE, Pennsylvania Office of Inspector General, Harrisburg, PA.

OPINION

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MEMORANDUM OPINION

Joy Flowers Conti, Chief United States District Judge.

Michael Volek (" Volek" ) contends that his former employer, the Redevelopment Authority of the County of Fayette (the " Authority" ), and three of its employees, Andrew French (" French" ), Al Jeffries (" Jeffries" ), and Warren Hatfield (" Hatfield" ) (collectively " defendants" ), terminated his employment in retaliation for complaints he filed with two state agencies in late 2011, which complaints accused the Authority of fraud and abuse. Specifically, Volek brings a claim, pursuant to 42 U.S.C. § 1983, alleging that defendants violated his First Amendment rights, and a claim for relief under Pennsylvania's Whistleblower Statute, 43 Pa. Cons. Stat. § 1423(a). Volek seeks compensatory damages against all defendants, and punitive damages against the three individual defendants. (ECF No. 1 at 6, 7-8.)

Defendants filed a joint motion for summary judgment, (ECF No. 33), a brief in support of the motion, (ECF No. 39), a concise statement of material facts, (ECF No. 36), and a reply brief, (ECF No. 49). Volek filed a response to defendants' concise statement of facts, (ECF No. 45), his own concise statement of material facts, (ECF No. 44), and an opposition brief

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(ECF No. 46). After the close of briefing, the parties submitted a joint concise statement of material facts. (ECF No. 50.)

In their motion, defendants argue that Volek's claims cannot survive summary judgment because there is no proof of causation. (ECF No. 39 at 7-16.) In opposition, Volek contends that the record contains ample evidence that he was terminated because he complained about the Authority's operations. (ECF No. 46.) For the reasons that follow, defendants' motion will be granted. There is no evidence that rises above the level of speculation and supposition that defendants were aware that Volek filed a complaint against the Authority before the decision to eliminate his position was made. Even if a reasonable inference could be drawn that the Authority was aware that Volek submitted a complaint before it decided to eliminate his position, which would provide at least some factual predicate for a reasonable jury finding that Volek's complaints caused his termination, there is no genuine dispute that the Authority would have eliminated Volek's position even without that knowledge.

Judgment will be entered in each defendant's favor on both claims and this case will be closed.

I. FACTUAL BACKGROUND

All material facts set forth herein are undisputed unless otherwise indicated. Additional material facts may be discussed elsewhere in this memorandum opinion, in context.

As an initial matter, because the parties did not sequentially number the defendants' and plaintiff's statements of fact in the combined concise statement of material facts, the court uses the format ¶ D1 and ¶ P2, to refer to defendants' and plaintiff's factual statements, respectively. With respect to the substance of the combined concise statement of material facts, the court notes that many of the purported " disputes" about the facts are not based on conflicts in the record evidence, and, therefore, are not genuine disputes that would preclude summary judgment. Specifically, Volek's repeated assertion that the individual defendants' testimony should be disregarded because they are " interested witnesses" lacks merit. (ECF No. 50 ¶ ¶ D25, D42, D45-46, D51-54, D56, D58.) The Court of Appeals for the Third Circuit instructs district courts to " believe uncontradicted testimony unless it is inherently implausible even if the testimony is that of an interested witness." Acosta v. HOVENSA, LLC, 529 F.App'x 297, 301 n.3 (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 272 (3d Cir. 2007)); see Benjamin v. City of Atlantic City, No. 12-3471, 2014 WL 884569, at *7 n.3 (Mar. 6, 2014) (citing decisions in which district courts refuse to disregard the testimony of " interested witnesses" on summary judgment).

As a result, the court found it necessary to review the underlying record itself to determine those facts that are reasonably disputed, and those that are not. In doing so, all reasonable inferences are drawn in favor of Volek, the nonmoving party. Inferences based upon speculation or conjecture, however, do not create a material factual dispute sufficient to defeat entry of summary judgment. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990).

A. Volek's Employment

The Authority serves as the principal agency in Fayette County, Pennsylvania, responsible for community development and single-family affordable housing activities. (ECF No. 50 ¶ D2.) Some of the Authority's functions are to administer a homeowner rehabilitation program and a

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weatherization program, which provides assistance to individuals to make energy efficient improvements to their homes. (Id. ¶ P1.) The Authority operates on funds received from the state and federal government. (Id.) The American Recovery and Reinvestment Act of 2009 (" ARRA" ), Pub. L. No. 111-5, 123 Stat. 115, was one economic measure that resulted in additional funding to the Authority's weatherization department during 2010 to 2012. (Id. ¶ P2.) Funding under the ARRA was not permanent. (Id. ¶ ¶ D42, D61.)

Volek was hired by the Authority in 2008 as an installer, and was promoted to the position of crew leader, and ultimately weatherization specialist. (Id. ¶ ¶ P10, P11.) Volek's direct supervisor was Hatfield. (Id. ¶ ¶ D60, P7-8, P77.) Hatfield was an hourly employee; he supervised Volek, but was not a management-level employee. (Id. ¶ D60.) Hatfield reported to Jeffries, who was the Authority's weatherization director and managed all aspects of the Authority's weatherization program. (Id. ¶ ¶ D6, P7.) Jeffries reported to French, who was the Authority's executive director and was responsible for management of all Authority departments and programs, and all human resources issues. (Id. ¶ D2.)

At all relevant times, the Authority employed two weatherization specialists, also referred to as auditors; Volek and Brian Welsh (" Welsh" ). (Id. ¶ ¶ D7, P12.) Weatherization specialists visit residents' homes, complete various inspections or tests, and make an initial assessment and recommendation with respect to work that can be done to improve the energy efficiency of the home, such as, for example, repairing or replacing windows, boilers, or furnaces. (Id. ¶ ¶ D2, D7, P12, P21.) The inspections could be completed as part of a government program, usually pursuant to a grant, including, for example, the ARRA, or on behalf of a utility company, which would reimburse the Authority for the work pursuant to contract. (Id. ¶ ¶ D61, P13, P15.)

If the weatherization specialist recommends that a furnace be replaced, an independent furnace contractor would re-inspect the furnace, and confer with Hatfield and Gary Bingham, the Authority's furnace inspector, to determine whether the furnace should be replaced. (Id. ¶ ¶ D8, P17-18.) The authority is expected to attempt to repair a furnace before replacing it. (Id. ¶ P22.) If a replacement is warranted, one of the Authority's installers would perform the work, and the Authority would send an employee back to the home to complete a final inspection of the project. (Id. ¶ ¶ D8, P19.) At some point in 2011 or 2012, Lloyd Wilson (" Wilson" ), an employee of Pennsylvania's Department of Community & Economic Development (" DCED" ) and the Authority's DCED-assigned state monitor, instructed the Authority that the final inspection should not be completed by the same employee who did the initial assessment. (ECF No. 50 ¶ ¶ D9, D67, P12, P19; ECF No. 47 at 98-99 (Hatfield Depo. at 61:2-64:23); at 279-80 (Wilson Depo.).)

The record is internally inconsistent about when Wilson gave the Authority this instruction, although no party acknowledges the incongruity in the evidence. Volek contends that Wilson must have given this instruction before his May 22, 2011 retirement, but claims that the Authority did not remove Volek from final inspections until after October 2011, purportedly proving that the delayed action was taken in retaliation for his complaints to governmental agencies about the Authority's fraudulent conduct. (ECF No. 50 ¶ D9.) At the same time, however, Volek relies on Wilson's report to the Authority, in December 2011, that the DCED received a

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complaint letter about the Authority to prove causation. (Id. ¶ D19, D29, D47.) It is illogical, without further explanation, that Wilson informed the Authority of the DCED's receipt of a complaint letter in December 2011, if he retired from the DCED more than six months earlier. Not only is that timeline illogical, but it is also directly contradicted by the record. Wilson explains that he knew about the complaint letter, and reported the same to the Authority, because it was within his job duties at the DCED to do so. (ECF No. 47 at 269-71, 275 (Wilson Depo.).) Wilson testified that he learned about the letter " a short time before I retired." (Id. at 271 (Wilson Depo.).) Likewise, Jeffries testified that Wilson was " already on his way out" in December 2011. (ECF No. 47 at 128 (Jeffries Depo. at 74:16-18).) No witness asserts that Wilson had been retired from the DCED for more than six months when he called Jeffries to tell him that the DCED received a complaint letter about the Authority. No witness offers an explanation about how Wilson would possess that information if he were no longer employed by the DCED. Although it appears likely, therefore, that Wilson retired in May 2012, not May 2011, the discrepancy with respect to Volek's date of retirement does not preclude entry of judgment as a matter of law because, as explained elsewhere in this opinion, any resultant factual disputes are immaterial.

In an August 21, 2010 e-mail, Jeffries recommended to French that half of Volek's $1.50 per hour pay raise be contingent on improved performance. (ECF No. 47 at 106 (Jeffries email); ECF No. 50 ¶ ¶ D10, P80.) Jeffries' recommendation was based on concerns that Hatfield expressed to him about Volek's performance. (ECF No. 47 at 106 (Jeffries email).) Jeffries' e-mail to French states that " [Hatfield] thinks [Volek] has the ability but is slacking." (Id.) Hatfield counseled Volek around this time about " incomplete audits." (ECF No. 50 ¶ ¶ D10, P78.) Almost a year later, in June 2011, Jeffries expressed to French that Volek's " auditing performance is also still kind of weak," Volek failed to obtain the required homeowner signatures on several files Hatfield showed him, and another employee found a water heater " poorly wrapped to the point of being dangerous" at a house for which Volek performed the initial inspection. (ECF No. 47 at 107 (Jeffries email); ECF No. 50 ¶ ¶ D11, P81.)

In October 2011, Volek was tried on an assault charge arising out of a physical altercation at a local bar that occurred in 2010. (ECF No. 50 ¶ ¶ D12, P66.) Volek's arrest and criminal trial were published in the local newspaper. (Id. ¶ D12.) Volek was acquitted at trial. (Id.) The mother of the man whom Volek was accused of assaulting, Mary Over, complained to Jeffries and French in October 2011, about Volek disclosing, on his Facebook page, that the Over family received services from the Authority, which information Mrs. Over considered to be confidential. (ECF No. 47 at 138-43 (Over Complaint); ECF No. 50 ¶ ¶ D14, P67.) Mrs. Over initiated her complaint with an inquiry into whether criminal background checks were completed on Authority employees who were sent into taxpayers' homes to complete inspections. (ECF No. 47 at 143 (Over Complaint).) The Authority took no action against Volek as a result of Mrs. Over's complaint. (ECF No. 50 ¶ D14.) The Authority did, however, remove Volek from performing inspections pursuant to utility company contracts, which specifically required criminal background checks, for some period of time in 2011 or 2012, and ordered a criminal background check on Volek in January 2012. (ECF No. 50 ¶ ¶ P71-72.) Volek had undergone a criminal

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background check before he was hired in 2008. (Id. ¶ P71.)

In March 2012, Volek alleged that he suffered an injury at work and was limited in his ability to perform lifting tasks at work. (Id. ¶ D69.) Mark Santillo (" Santillo" ) began to accompany Volek on inspections around this time. (Id.) Volek denies that Santillo accompanied him due to his injury, and alleges that he was, instead, directed by Hatfield to train Santillo to perform his job. (Id.)

B. Volek's Complaints About the Authority

In September 2011, Volek first contacted John Manz (" Manz" ) to raise concerns with respect to " dishonest" activity that Volek observed at the Authority. (ECF No. 47 at 27 (Volek email); ECF No. 50 ¶ P31.) Manz was the director of weatherization training for the DCED. (ECF No. 47 at 269-70 (Wilson Depo.); ECF No. 50 ¶ P31.) Volek explains that he contacted Manz because, during training classes, Manz invited all students to contact him with questions or concerns that might arise in the field. (ECF No. 50 ¶ P31-32.) Manz referred Volek to Craig Heim (" Heim" ) the executive director of the Office of Energy Conservation & Weatherization of the DCED, with whom Volek communicated by e-mail and telephone in late October and early November 2011. (ECF No. 47 at 28 (Heim Depo.); ECF No. 50 ¶ ¶ D4, P31, P35.) Heim, in turn, referred Volek to the state's Office of the Inspector General (" OIG" ), which is an arm of the Governor's Office that investigates allegations of fraud and abuse in the state's agencies, which communicated with Volek in November 2011. (ECF No. 47 at 29 (Heim email); ECF No. 50 ¶ ¶ D4, P36, P38-40, P42.) Volek's complaints to these agencies were that the Authority unnecessarily replaced furnaces, including using fraudulent photographs to justify replacement, and gave preferential treatment to friends and family members. (ECF No. 50 ¶ D4, P41.)

Volek contends that he made multiple complaints to Hatfield and Jeffries, beginning in 2010, about these same issues. (ECF No. 50 ¶ 10.) Defendants dispute this fact. The court must accept Volek's version of the facts as true for purposes of summary judgment, but must nevertheless ensure that there is some record evidence to support Volek's contentions. As an initial matter, Volek submitted a declaration for purposes of summary judgment indicating that he made multiple complaints to Jeffries and Hatfield about unnecessary furnace replacements and preferential treatment from approximately the summer of 2010 through 2011. (ECF No. 47 at 285-86 (Volek Dec.).) A declaration, however, cannot contradict record evidence, without an explanation of that contradiction. Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253-54 (3d Cir. 2007).

According to Volek's deposition testimony, the earliest Volek complained to Hatfield or Jeffries was September 2010. (ECF No. 47 at 10 (Volek Depo. at 29:6-9 (complaint to Hatfield with respect to duplicate pictures of cracked furnaces in September or November 2010).) Volek points to no other record evidence to support his declaration statement that he complained to Hatfield or Jeffries in the summer of 2010; instead, the record reflects that, with the exception of the September 2010 complaint, all other internal complaint activity occurred in 2011. (ECF No. 47 at 11 (Volek Depo. at 32:1-2) and 13 (Volek Depo. at 38:22-39:4 and 41:10-24) (all other internal complaints made in 2011).) To the extent Volek's declaration could be considered to create a factual dispute, the earliest date on which Volek complained to Hatfield or Jeffries, whether orally or in

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writing, is immaterial for purposes of deciding the instant motion for summary judgment.

The record also reflects that Volek's internal complaints were not limited to allegations of preferential treatment and unnecessary furnace replacements. In 2011, Volek submitted a written complaint to Jeffries concerning the inappropriate and unprofessional conduct of Kaylene Mehalic, a fellow employee, the unfairness of the Authority's pay scale and hiring process, and inequitable treatment of employees. (ECF No. 47 at 11 (Volek Depo. at 30:25-32:2); at 26 (complaint letter)).

The record further reflects that Volek was not the only employee to complain that certain homeowners were receiving preferential treatment; Welsh, among unidentified " others," complained about this same issue internally. (ECF No. 50 ¶ ¶ D64-65.) The record further reflects that Volek was not the only source of concerns with respect to the Authority's replacement of furnaces: Fayette County was identified during a 2011 audit conducted by the state's budget office and also at a state-wide industry conference as ...


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