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Rouse v. City of Pittsburgh

United States District Court, W.D. Pennsylvania

June 21, 2017

JOCELYN ROUSE, an adult individual, and ROAC, INC., a Pennsylvania Corporation, Plaintiff,
v.
CITY OF PITTSBURGH, and MAURA KENNEDY, Director of the City of Pittsburgh's Department of Permits, Licenses, and Inspections, Defendants.

          MEMORANDUM OPINION

          NORA BARRY FISCHER, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This action involves allegations by Plaintiffs that Defendants constructively debarred them from future contracts without following the required procedures and committed a breach of contract by inducing them to submit bids without awarding the projects. In their Complaint, Plaintiffs assert claims against Defendants the City of Pittsburgh ("the City") and Maura Kennedy for violation of 42 U.S.C. § 1983 and breach of contract. (Docket No. 1-2). Presently before the Court is Plaintiffs' Motion for Partial Summary Judgment and Defendants' Motion for Summary Judgment. (Docket Nos. 16, 42). After careful consideration of the parties' positions and having evaluated all of the evidence in light of the appropriate standard governing motions for summary judgment, and for the following reasons, Defendants' Motion for Summary Judgment will be GRANTED, and Plaintiffs' Motion for Summary Judgment will be DENIED.

         II. FACTUAL BACKGROUND

         The following facts are not contested. Plaintiff ROAC, Inc. ("ROAC") is a certified minority and woman owned business. (Docket No. 18 at ¶ 1; Docket No. 25 at ¶ 1). The City recognizes ROAC's license to perform demolition work. (Docket No. 18 at ¶ 2; Docket No. 25 at ¶ 2). On November 6, 2015, ROAC '"negligently tore down the wrong house.'" (Docket No. 18 at ¶ 3 (quoting Defendants' Answer, Docket No. 4 at ¶ 42); Docket No. 25 at ¶ 3). Following this incident, and an episode wherein Defendants contend that an ROAC employee directed foul and abusive language at a neighbor, '"the City determined that ROAC could no longer be deemed a responsible bidder for demolition work.'" (See Docket No. 18 at ¶ 4 (quoting Defendants' Answer, Docket No. 4 at ¶ 42); Docket No. 25 at ¶ 4).

         On January 27, 2016, Rouse contacted Stephanie Dorman, the City's Procurement Coordinator, and requested "a detailed list of how all the contractors" bid for a demolition award." (Docket No. 40 at ¶ 9; Docket No. 51 at ¶ 9; see also Docket No. 41-5 at 3). Dorman forwarded Rouses's e-mail to Jennifer Olzinger, Mark Mariana, and Brian Ralston and stated, "How should i [sic] respond to requests like this? FYI . . . ROAC." (Docket No. 40 at ¶ 10; Docket No. 51 at ¶ 10; see also Docket No. 41-5 at 3). In response to Rouses's e-mail, Dorman advised Rouse to visit the City's website and follow the steps for Right to Know. (Docket No. 40 at ¶ 11; Docket No. 51 at ¶ 11; see also Docket No. 41-5 at 1). On February 22, 2016, Dorman sent the following e-mail to Mariana and Ralston:

Hi Mark, Brian, The lovely Jocelyn [Rouse] has called me yet again[.]
A) [S]he has not received her packet (RTK) from the previous bid. She said she spoke to you[, ] Brian[, ] and you said it was in the mail last Wednesday.
B) She said she was not on the invitation for bid again. We need to let her know ROAC is not a responsible bidder. We need to brainstorm the language and maybe run it pass [sic] legal if necessary.

(Docket No. 40 at ¶ 14; Docket No. 51 at ¶ 14; see also Docket No. 41-6 at 1). Jennifer Olzinger, the Assistant Director-Procurement Manager, responded:

The City got her RTKL request - Sam got notice late on Friday. They will respond to her so don't respond to her directly on that topic. Please just refer her to the policy online and tell her to follow upt [sic] with that office if she asks again. Stephanie - as discussed on "B", let's draft something for review.

(Docket No. 40 at ¶ 15; Docket No. 51 at ¶ 15; see also Docket No. 41-6 at 1). By e-mail, Dorman informed Rouse to contact Mariani or Ralston and provided their e-mail addresses. (Docket No. 40 at ¶ 16; Docket No. 51 at ¶ 16; see also Docket No. 41-7). Rouse sent an e-mail to Ralston on February 23, 2016. (Docket No. 40 at ¶ 18; Docket No. 51 at ¶ 18; see also Docket No. 41-9).

         On February 29, 2016, Kennedy forwarded a letter from ROAC to City representatives. (Docket No. 40 at ¶ 20; Docket No. 51 at ¶ 20; see also Docket No. 41-10 at 2-3). In response, Sam Ashbaugh, the Director of the City's Office of Management and Budget stated:

[D]id PLI ever document to us this vendor's performance? I know it has been spoken of, but I wasn't sure if the dept actually documented issues with this vendor.
Stephanie - per the letter, can you provide copies of all correspondence with this vendor? We need to be careful about what if anything is communicated to vendors since this is a very controversial issue, especially with the Controller now questioning how the process has been changed even though it was approved by the law dept.
Since PLI made the determination and has had all communication with the vendor, I don't see this being an issue for us to resolve. Going forward[, ] I want to be involved in all discussions with PLI contracts and procurement issues . . .this is going to be an issue on several fronts due to the nature of personalities involved.

(Docket No. 40 at ¶ 21, 23-24; Docket No. 51 at ¶ 21, 23-24; see also Docket No. 41-10 at 2). Olzinger replied:

No, they never sent us the vendor performance form that I can see. She had said they were completing them - but we've never seen a copy of any. At least I haven't - I will let Stephanie speak for herself, but I'm sure she would have put it out in the folder if she got one.

(Docket No. 40 at ¶ 22; Docket No. 51 at ¶ 22; see also Docket No. 41-10 at 1). In response, Dorman stated:

You are correct. I sent Maura the Vendor Performance sheet in November but I haven't seen her return one. I haven't had any communications with ROAC except to send out phone quote invitation and RTKL information. She usually calls me and I direct her to Mark or Brian in PLI.

(Docket No. 40 at ¶ 22; Docket No. 51 at ¶ 22; see also Docket No. 41-10 at 1).

         On March 10, 2016, Rouse e-mailed Kennedy, and copied Ralston and Mariani, the following:

I am following up on my very brief conversation with you on Tuesday, March 8th. I had made an appointment with your assistant on the morning of the 8th at 8:30 am to speak with you regarding ROAC's status and perhaps seeing fit to reverse this status given the evidence that I produced in our support (the letter from Mr. Werkmeister which absolutely corroborates my own letter of February 29th giving ROAC's side of the story) as well as ROAC's 15 year history with being a contractor for the city doing exceptional work and having no prior incidents. Your assistant gave me a 4:00 pm appointment on the 8th. When I questioned whether the office was closed at that time, your assistant said that you would be in the office until at least 4:30 pm and that it was a good appointment. However, when I showed up at 4 pm that day, you would not see me except to say that there was a letter forthcoming to me from the Law Department. When I asked when I would be getting the letter, you did not know but only said that you had seen a rough copy of the letter that morning. When I asked whether you or your assistant could have called me to cancel the appointment, that I would have preferred not to have fought rush hour traffic to make an appointment that I can only assume you knew well before 4 pm that you would not keep, you said you were sorry.
At this time of writing this email, I still have not received this Law Department letter. As this situation proceeds, I am just dumbfounded at why at no point you could not have informed me of the problem of our status and what, if anything, I could do to correct it and proceed as we have for years. There seems to be no one to whom I can speak and when I try to follow paths of seemingly proper procedure, I am met with walls. I know I do not have a relationship with you, that our brief words on the 8th was literally the first time I had ever spoken/met you. However, I have worked for the city for years, with the inspectors and your predecessorf, ] Paul Loy. I just wish to be heard and, just to be clear, it was Brian Ralston who told my brother Kurt ...

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