Thomas Rink v. Northeastern Educational

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 16-3183
______________
THOMAS RINK,
Appellant
v.
NORTHEASTERN EDUCATIONAL INTERMEDIATE UNIT 19, LOUISE
BRZUCHALSKI, ROBERT SCHWARTZ, JOSEPH MURRACO, RICK BARONE,
THOMAS CERRA, CY DOUAIHY, ERIC EMMERICH, HAROLD EMPETT,
KATHLEEN GRANDJEAN, MICHAEL MOULD, ELLEN NIELSEN, CHRISTINE
PLONSKI-SEZER
______________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-14-cv-02154)
District Judge: Hon. Robert D. Mariani
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 14, 2017
______________
Before: GREENAWAY, JR., SHWARTZ, Circuit Judges, and SIMANDLE, Senior
District Judge. *
(Filed: December 15, 2017)
*
Honorable Jerome B. Simandle, Senior District Judge of the United States
District Court for the District of New Jersey, sitting by designation.
______________
OPINION **
______________
SIMANDLE, District Judge.
Thomas Rink (“Rink”) appeals the District Court’s grant of summary judgment to
Northeastern Educational Intermediate Unit 19 (“NEIU”), Louise Brzuchalski, Robert
Schwartz, Joseph Murraco, Rick Barone, Thomas Cerra, Cy Douaihy, Eric Emmerich,
Harold Empett, Kathleen Grandjean, Michael Mould, Ellen Nielsen, and Christine
Plonski Sezer (collectively “Defendants” or “Appellees”). Because there is no genuine
dispute of material fact that Rink’s allegedly protected speech and his eventual
termination were causally connected, and because Rink’s due process and civil
conspiracy claims cannot succeed, the District Court properly ordered summary judgment
for Defendants, and we will affirm.
I
This case involves Rink’s claim for wrongful termination from his position as the
fiscal director of NEIU in 2014. NEIU is a regional education service agency located in
Archbald, Pennsylvania, which is a part of the public school system and was established
by the Pennsylvania General Assembly; the named defendants are or were Board
members of NEIU at the relevant times. Rink had been employed by NEIU since 1981
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
2
and was made fiscal director in 1994. The principal issue is whether the District Court
erred in finding there was no evidence from which a fact finder could reasonably
conclude that Rink was terminated in June of 2014 from public employment in retaliation
for his cooperating in a federal investigation and sentencing of NEIU’s former executive
director during the time period of January of 2011 through March of 2013.
In 2010, Fred Rosetti, the executive director of NEIU, retired from his position.
Subsequently, the Pennsylvania Department of the Auditor General, the U.S. Department
of Education, and the Federal Bureau of Investigation began to investigate Rosetti. This
investigation was undertaken largely as a result of Board member Louise Brzuchalski
requesting to see Rosetti’s contract, calling a local newspaper, and reporting Rosetti to
the Auditor General. Rink agreed to assist in this investigation and, on April 22, 2011,
was served with a subpoena by a representative of the U.S. Department of Education and
the FBI to appear before the Assistant U.S. Attorney, Michelle Olshefski, on May 18,
2011. Rink told Dr. Clarence Lamanna, the new executive director of NEIU, about the
visit from the FBI’s representative. AUSA Olshefski described Rink as having been
responsive to questions, cooperative, and “extremely” helpful. App. 1730-31.
As early as January of 2011, Brzuchalski began calling for Rink to be terminated.
AUSA Olshefski stated that it was her recollection that she was “led to believe that the
NEIU was blaming Mr. Rink”; in response, in June 2011, she informed Jeff Tucker,
NEIU’s solicitor, not to take any adverse action against Rink, because that would be
interfering with a federal investigation. App. 1732-38; 1766. This position was made
clear to Lamanna, as over the course of the following months and years, Lamanna
3
repeatedly told the Board members that they could not take adverse action against Rink
because he was a whistleblower.
On February 21, 2012, Rosetti was indicted for financial misconduct relating to his
work as executive director of NEIU. Rosetti pled guilty to theft and mail fraud charges in
October of 2012 and admitted misusing taxpayer money.
Before Rosetti was sentenced, AUSA Olshefski met with the Board and reaffirmed
to the entire Board her earlier statements to NEIU Solicitor Tucker, saying that Rink was
not and had never been a target of the investigation, and that Rosetti was the only
wrongdoer.
Rosetti was sentenced in March of 2013. At the sentencing, Rink made an impact
statement, wherein he described the Board as having “exercised little oversight over”
Rosetti’s activities: “Monthly meetings were completed in an hour or less, nearly every
vote was unanimous, and I was often shocked over the years how some agenda items that
I thought to be deserving of some debate would pass unanimously, with not even a
question.” App. 8-9. Rink also described raising concerns about certain financial
improprieties, like a catering charge of several hundred dollars that Rosetti directed him
to process as having been for a staff meeting: “As directed to do so, I processed the bill,
and it was passed by the Board without question or comment.” App. 9. Rink described his
cooperation over the previous two and a half years with the investigation of Rosetti, and
said that, despite his never having been a target of the investigation or a “willing party in
these schemes[,] . . . there are those who continue looking at me as a scapegoat, as well as
debating my continued employment in my current position. . . . There are those who feel
4
that I have failed, in some way, and should be removed from this position that I have
enjoyed having so much over the years.” App. 9-10. He concluded by stating his belief
that “[t]he fall-out from [Rosetti’s] actions has had and will continue to have a negative
[e]ffect on our health, our well-being and our future careers.” App. 10. This statement
was the only public statement made by Rink and was made under oath.
Prior to this, in June of 2012, after Rosetti was indicted but before he pled guilty,
NEIU replaced its auditor (which had one year left on its contract) with Brian T. Kelly &
Associates (“the Kelly Firm”). Rink believed the Board wanted to replace the auditors
because there was a question as to whether auditors should have noticed Rosetti’s
misconduct and because the Board was “looking for a scapegoat.” App. 192. Lamanna
testified that he believed the Board replaced its old auditors because “they wanted a new
face” and because of concerns that the “difficulties inherent in the Rosetti issues” didn’t
surface. App. 572. The Board asked Rink to get proposals from new auditing firms, and
Rink ultimately told the Board that he thought either the Kelly Firm or Robert Rossi and
Company would be a good choice. At approximately the same time, the Board
established several new committees at the recommendation of Lamanna. This included a
finance committee, which monitored Rink’s performance.
In November of 2012, the finance committee of the Board met with the new
auditors from Brian T. Kelly & Associates: Brian Kelly, Brad Murray, and Larry
Mattern. Kelly told the Board members that NEIU’s books were unauditable because of
accounting irregularities. Specifically, in order to perform the audit, the accountants at
Kelly needed a reasonably adjusted trial balance reflected in the books and records of
5
NEIU; Kelly and Murray determined that the “books and records were not reasonably
adjusted and didn’t accurately reflect a number of items that should have been recorded.”
App. 1056. Kelly made this determination by ascertaining that the books and records did
not accord with the financial statements of NEIU and by looking through the general
ledgers and discovering more irregularities. Kelly informed the Board members that the
accounting work would have to be fixed before the books could properly be audited, and
ultimately charged NEIU approximately $42,000 for the accounting work and $21,000
for the auditing work. Because of these irregularities, Kelly also informed the Board
members that he would not be able to complete the annual financial report by November
30, 2012; the delay would leave NEIU facing a possible fine of $300 per day. No
evidence contradicts Kelly’s determination that, as of November of 2012, NEIU’s books
were unauditable.
Once Kelly completed the necessary and extensive accounting work and
concluded the 2012 audit, there were ultimately thirteen findings of deficiencies or
material weaknesses contained in the audit. Another issue uncovered by Kelly was with
regard to a possible loss in the amount of $360,000 to NEIU as a result of an issue
concerning indirect costs. Murray and Kelly discussed this issue with the Finance
Committee in February of 2013. The essential issue was in the determination of the ratio
between business office costs and all costs; although another intermediate unit told
Murray that they calculated this ratio in the same way as NEIU, when Murray contacted
the Bureau of Audits in Harrisburg, the Bureau informed him that NEIU’s method of
calculation was incorrect and constituted “double-dipping.” App. 1065.
6
On at least one occasion, Lamanna raised the issue with Kelly and Murray of why
Rainey (NEIU’s previous auditor) did not find the issues that Kelly found when preparing
for and completing the 2012 audit. In response, Murray told Lamanna that he believed
that Rainey’s audit must have been deficient, because all of these issues would have
existed and should have been raised by the previous auditors.
In July of 2013, Lamanna gave Rink a corrective action plan, directing him to
address the deficiencies noted in Kelly’s 2012 audit. Lamanna told Rink that if he did not
correct the findings in the 2012 audit, Rink would be terminated.
The following year, Kelly’s audit for fiscal year ending in June of 2013 showed
only 5 findings, compared to the thirteen findings in the previous year’s audit. The
“double-dipping” problem identified by the Bureau of Audits had been eliminated. Id.
Lamanna characterized the 2013 audit as having shown that Rink had improved but not
eliminated the problems identified in the previous audit. For the fiscal year ending June
30, 2014, Kelly’s audit effectively showed no findings (two findings were recited but
these were only required to be reported because of previous findings in earlier audits).
Rink was employed as the fiscal director for NEIU for eleven of the twelve months at
issue in the audit for the fiscal year ending June 30, 2014.
In January 2014, NEIU’s then-solicitor, John Audi (who had replaced Jeff
Tucker), recommended that an independent consultant come in to evaluate NEIU’s
business practices and Rink’s performance. In February 2014, Audi spoke to Rink’s
lawyer and offered Rink an early retirement package; Rink testified that he understood
Audi to say that if Rink did not accept the offer, the Board would bring in an independent
7
consultant to point out any mistakes Rink had made. Rink did not accept the early
retirement package.
Subsequently, around February or March of 2014, the Board hired George
Shovlin, a certified public accountant and lawyer who works in the areas of employment
benefits and education law, to conduct an independent examination of Rink’s
performance as fiscal director and of the business department at NEIU. Before being
hired by the Board, Shovlin did not know anything more about Rosetti than what he
might have read in local newspapers. Shovlin did not have any knowledge about Rink’s
involvement in the Rosetti investigation. Shovlin was directed by the Board to focus only
on the preceding two years of operations at NEIU and, ultimately, to recommend any
changes he thought necessary with regard to Rink’s employment status, including
suspension, performance improvement plans, termination, or recommending that
everything remain as it was. Robert Schwartz, the president of the Board, told Shovlin
that NEIU and the composition of the Board, specifically, had undergone many changes
since Rosetti’s departure; Schwartz himself had only been on the Board for the previous
two years or so. Schwartz expressed concern to Shovlin that the Board wanted to make
sure that they were treating Rink fairly and not targeting Rink because of Rosetti.
Shovlin then conducted his investigation, speaking directly to Rink and other
NEIU employees, interviewing Board members who were on the Audit and Finance
Committee, and reviewing the audit reports and other records. During the course of
Shovlin’s investigation, he expressed to Brad Murray, one of the accountants from the
Kelly Firm, that he was “amazed” that the adjustments to NEIU’s books and records that
8
were required for the auditing process weren’t done before Kelly came in to perform the
2012 audit. App. 1053.
On May 15, 2014, Shovlin presented his initial report to the Finance Committee,
and on May 20, 2014, to an executive session of the Board and subsequently to NEIU’s
Board as a whole.
Shovlin’s report noted that the 2012 audit performed by Kelly resulted in 226
adjusting journal entries, and the 2013 audit in 49 adjusting journal entries, while a
normal amount in any given year would be under 10 adjusting journal entries; Shovlin
did note, however, that some of the 49 adjusting journal entries from 2013 were
holdovers from 2012 findings. While the Annual Financial Report (“AFR”) and
independent audit report for 2012 were filed late (in part because of how many adjusting
journal entries there were), NEIU did not actually incur fines or penalties because of this.
Shovlin also reported an adjustment of over $291,000 that had to be made regarding the
2012 financial reports because there was an error in reporting payroll liabilities to
account for a 2% reduction in employees’ Social Security taxes; an adjustment of over
$127,000 that had to be made to correct the failure to record future retirement payments
owed to employees who had retired that fiscal year; and two adjustments relating to bills
owed to Verizon. The first Verizon bill, for an amount over $449,000, was incorrectly not
reported as a liability or an expense in the 2012 financial report, Rink claimed, because it
was being disputed. In 2013, however, there was another Verizon bill for over $229,000,
that Rink told Shovlin was not listed as a liability because he “blew it”; although some or
all of this bill was also being disputed, Rink mistakenly put it into the “pile” of “bills to
9
be paid,” rather than liabilities. App. 1173-75. Shovlin also pointed to the late filing dates
for the 2012 AFR and independent audit reports as having been caused in large part by
the extraordinary number of adjustments that had to be made. Also of note was Rink’s
failure to cut off the books and financial records at the end of the fiscal year on June 30,
2012, and NEIU’s failure to collect and remit sales tax as part of its auto repair program.
Shovlin noted that his interviews with Lamanna and other staff at NEIU, as well as
his own interviews with Rink, left the impression that Rink was likable, honest, and well-
regarded interpersonally; he wrote that he considered Rink “a gentleman in every positive
sense of the word.” App. 1192-93. He also found fault with the performance
improvement plan on which Lamanna had placed Rink; he felt that with a better plan,
Rink could have made more improvement from the issues noted in the 2012 reports to the
2013 reports.
At the meetings in May of 2014, Shovlin did not make a specific recommendation
as to whether to terminate Rink, renew his employment, or take any other employment
action. He did tell the Board that, in his estimation, the issues he had discovered, the
materiality of those issues, and the number of issues, warranted Rink’s termination if the
Board chose to do so. Shovlin believed that case law supported terminating Rink for
neglect of duty. He did not believe that the Board should take no action with regard to
Rink’s employment status; the issues uncovered warranted action by the Board, and
although Rink had improved under the performance improvement plan, significant issues
still remained. Shovlin also recommended that a disciplinary hearing be held to go over
the issues he had uncovered with Rink’s performance during his investigation. All twelve
10
members of the Board then voted not to renew Rink’s employment as of June 30, 2014
(the end of the fiscal year). The Board characterized this decision as one not to renew
Rink’s employment, rather than as a dismissal for cause. The next day, May 21, 2014, a
letter was sent to Rink informing him of the Board’s decision not to renew his
employment, effective June 30, 2014. The letter also informed him that he was not to
return to work after May 20, 2014, and Rink did not do so.
Rink had no written employment contract. While Rink was promoted to his
position on a permanent rather than acting basis in 1994, as of about 2000, he believed
that his employment was deemed perpetual unless he, for instance, committed a great
crime. None of the employees of NEIU, except for the executive director, had specific
employment contracts with NEIU or anything stating a term of employment. This
included Rink. However, the Board did vote annually to provide Rink with a raise in
salary.
In late June of 2014, Rink received a letter from NEIU’s solicitor informing him
of the opportunity to request a hearing regarding his termination for cause. Rink’s
counsel declined to demand a hearing. That was Rink’s notice of hearing provided to him
before the hearing occurred. Despite Rink’s refusal to demand a hearing, the Board
scheduled and held a hearing on July 23, 2014; however, Rink did not attend the hearing.
After the hearing, an adjudication and determination were made to terminate Rink for
cause. On September 23, 2014, the Board confirmed this determination, passing a motion
to dismiss Rink for neglect of duty effective at the conclusion of June 30, 2014. At a
Board meeting on October 2, 2014, the Board adopted a motion to amend the
11
adjudication to reflect that Rink was fired for cause as of June 20, 2014. 1 At Rink’s
deposition, he testified that, to his knowledge, no one else who had participated in the
Rosetti investigation (approximately five other people) had been terminated by NEIU.
Rink filed this lawsuit in November of 2014 in the United States District Court for
the Middle District of Pennsylvania. He alleged that NEIU harassed and terminated him
in retaliation for Rink exercising his First Amendment rights in testifying against Rosetti;
that NEIU violated his right to due process by not providing him with an explanation of
the reasons for his termination or an opportunity to be heard before he was terminated;
that the defendants engaged in an unlawful civil conspiracy to retaliate against and
terminate Rink; and that the defendants violated the Pennsylvania Whistleblower Act, 43
Pa. Stat. and Cons. Stat. Ann. § 1422. After extensive discovery, the defendants filed a
motion for summary judgment on January 29, 2016. After briefing by both parties and
oral argument, the court granted the defendants’ motion on July 18, 2016. The court
entered judgment in favor of defendants and against Rink. Rink appeals.
II 2
We exercise a plenary standard of review over the District Court’s entry of
judgment in favor of defendants, and we apply the same standard for summary judgment
as the District Court. Chavarriaga v. N.J. Dep’t of Corrs., 806 F.3d 210, 218 (3d Cir.
2015). Summary judgment is appropriate where there is no genuine issue as to any
1
The record does not indicate a reason for this effective date rather than the previous
effective date of June 30, 2014.
2
The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C.
§ 1367; we exercise jurisdiction pursuant to 28 U.S.C. § 1291.
12
material fact, and the moving party is entitled to judgment as a matter of law; while the
non-moving party is entitled to the benefit of all reasonable factual inferences from the
evidence, the non-movant “must point to some evidence in the record that creates a
genuine issue of material fact.” N.A.A.C.P. v. City of Philadelphia, 834 F.3d 435, 440
(3d Cir. 2016) (citation omitted). “[A]n inference based upon a speculation or conjecture
does not create a material factual dispute sufficient to defeat summary judgment.” Halsey
v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014) (quoting Robertson v. Allied Signal, Inc.,
914 F.2d 360, 382 n.12 (3d Cir. 1990)).
Rink advances two major grounds for error by the District Court. First, he argues
that the District Court erred as a matter of law when it found that there was no genuine
dispute of material fact regarding whether there existed a causal connection between
Rink’s protected speech and the decision to terminate his employment. Second, he argues
that the District Court erred as a matter of law in determining that Rink lacked a protected
interest in his continued employment entitling him to procedural due process protections
he did not receive. He also contends that the District Court wrongly granted summary
judgment on his civil conspiracy claim. We will address these arguments in turn.
A.
1.
Rink claimed that NEIU retaliated against him in violation of his First Amendment
rights (Count I). In order to make out a claim of First Amendment retaliation under 42
U.S.C. § 1983, a plaintiff must show that 1) the plaintiff engaged in activity protected by
the First Amendment; 2) the defendant took retaliatory action against the plaintiff
13
“sufficient to deter a person of ordinary firmness from exercising his or her rights”; and
3) a causal nexus existed between the protected activity and the retaliation. Lauren W. ex
rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). This circuit has also
framed the claim’s required showing as first, that the plaintiff engaged in “speech [that] is
protected by the First Amendment,” and second, that “the speech was a substantial or
motivating factor in the alleged retaliatory action . . . [;] if both are proved, . . . the burden
[shifts] to the employer to prove that . . . the same action would have been taken even if
the speech had not occurred.” Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 466 (3d
Cir. 2015).
Here, the District Court ruled that Rink had not put forth sufficient evidence to
allow a reasonable finder of fact to conclude that his speech against Rosetti was a
“substantial or motivating factor” in Rink’s termination by NEIU. 3 Ohio App. 20. We agree.
In order to establish the required causal connection, “a plaintiff usually must prove
either (1) an unusually suggestive temporal proximity between the protected activity and
the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to
establish a causal link.” Lauren W., 480 F.3d at 267. If a plaintiff cannot make either
showing, “the plaintiff must show that from the evidence gleaned from the record as a
whole the trier of fact should infer causation.” Id. (internal quotation marks omitted). The
protected activity need not be the only motive behind the retaliatory action; summary
judgment should not be granted in the case “[w]here a reasonable inference can be drawn
3
Accordingly, the court did not address whether NEIU could prove that the same action
would have been taken even if Rink had not spoken against Rosetti.
14
that an employee’s speech was at least one factor considered by an employer in deciding
whether to take action against the employee[.]” Merkle v. Upper Dublin Sch. Dist., 211
F.3d 782, 795 (3d Cir. 2000). Nevertheless, this circuit has recognized that courts “must
be diligent in enforcing these causation requirements[.]” Lauren W., 480 F.3d at 267. A
party opposing a motion for summary judgment “must present more than just bare
assertions, conclusory allegations or suspicions to show the existence of a genuine issue.”
Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (internal quotation marks
omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Rink submits that the District Court erred in not crediting the evidence he
proffered as sufficient to allow an inference that NEIU exhibited a pattern of antagonism
toward Rink after he participated in the Rosetti investigation. It appears that Rink does
not argue that there existed an “unusually suggestive temporal proximity” between his
participation in the Rosetti matter and his termination; nor can he reasonably do so, as the
temporal proximity contemplated to allow for such an inference is on the order of days or
weeks, see Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-80 (3d Cir. 2000);
Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d Cir. 2003), rather than the
15 months (from Rosetti’s sentencing in March of 2013 until Rink’s termination in June
of 2014) that elapsed here.
Instead, Rink submits that “the pattern of antagonism” by the Board began after
NEIU “learned that Rink was being cooperative in the investigation and [had] responded
to the subpoena,” and the “pattern intensified after the sentencing” where Rink made an
impact statement. Appellant’s Br. at 15. However, an examination of the record does not
15
reflect evidence to allow for a reasonable inference of the existence of a retaliatory
motive behind “the pattern of antagonism” to which Rink refers.
Rink argues that his belief, relying on his deposition testimony, that “the Board
was influencing the Kelly Firm” is based on the following: 1) “Bob Schwartz, Louise
Brzuchalski and Joe Muracco started having discussions with the Kelly Firm right after
the audit began which is not typical”; 2) “the Kelly Firm continuously made negative
comments to the Board about [Rink’s] performance”; 3) the previous auditors had made
only one finding against him, but the Kelly Firm made “13 written findings,” many of
which Rink believes to have been minor and not worthy of written findings; and 4) Kelly
did not bring up these potential findings in advance with Rink and allow Rink to
“straighten out” those issues with Kelly before bringing them to the attention of Board
members, which is “just not the way the process usually works.” Appellant’s Br. at 16-
17. Rink characterizes this last issue as Kelly having “blind-side[d]” Rink. Id. Rink’s
critique of the Kelly auditors does not withstand scrutiny, as now discussed.
None of these alleged facts, even taken in the light most favorable to Rink, tend to
allow for a reasonable inference that the Board was influencing the Kelly Firm or that it
was doing so in retaliation for Rink’s protected speech. First, Rink himself had a hand in
choosing Kelly when Rink indicated to the Board that the Kelly Firm would be an
acceptable choice for a new auditor, a fact which logically implies Kelly’s independent
auditor status. Second, each of the facts to which Rink points are notable only because he
asserts them to be so (i.e., that Board members spoke directly with members of the Kelly
Firm, or that some of Kelly’s findings were relatively minor). Moreover, the record
16
confirms that the Kelly Firm’s methods were, even if another auditor may have done
things differently, a reasonable professional practice. Kelly’s discussions with the Board
and its professional auditing methods simply do not give rise to an inference of collusion
with the Board. It was not disputed that Kelly found the books and records to be
unauditable. In this dire circumstance, if the Board had hypothetically brought in new
auditors whom they wanted to be more exacting than previous auditors because the Board
believed that it had been too lax or too generous to management in light of the
malfeasance committed by the former executive director, one could only reasonably find
that the practices complained of by Rink would be undertaken by the new auditors, e.g.,
direct interaction with Board members, erring on the side of making findings even out of
relatively minor issues, erring on the side of making written findings rather than verbal
warnings, making sure Board members were directly apprised of all findings. None of
these actions, then, allow for a reasonable inference that the Kelly Firm was colluding
with the Board, much less that it was doing so to retaliate against Rink for a protected
activity, given the unauditable nature of the books Rink maintained as of 2012.
Indeed, one of Rink’s experts, Stephen J. Scherf, CPA/CFF, CFE, wrote in his
report that the reason for the discrepancy between the old auditors’ reports on Rink’s
performance and Kelly’s report was attributable to “a difference in professional
judgment” between the auditors’ firms. App. 1776. While Scherf stated that “it has not
been established that the lack of findings on the part of the Bonita & Rainey firm
represents anything more than a difference in professional judgment,” he also did not
attribute Kelly’s findings to anything other than this difference or note what he
17
considered to be bias, unfair treatment, or unusual practices by the Kelly Firm in its
audits of Rink and NEIU. Id.
Rink also submits that the District Court erroneously overlooked the evidence
offered by his expert witness, Patrick M. Sable, Pennsylvania Registered School Business
Administrator (“PRSBA”). The Court has reviewed Sable’s report, which states, in
essence, that Sable believes several of the findings made by Kelly against Rink could
have been “identified as verbal findings and resolved quickly”; if they were not corrected
in the next year, “then” those findings “may rise to a written comment because of
compliance failure.” App. 1795. Sable also stated that providing Rink with “a fair
opportunity to take corrective action” would have been “reasonable and customary.” Id.
However, nothing in Sable’s report suggests that it was unusual or unreasonable to
instead log the findings as written findings and submit them to the Board, especially in a
situation, as here, where Kelly was brought in as a fresh pair of eyes or “a new face,”
App. 572, to take a renewed look at NEIU’s operations in light of the Rosetti issues and
serious deficiencies in accounting practices. Likewise, the Sable report does not take
issue with the serious structural deficiencies that Kelly found in November of 2012 to
render the books “unauditable,” as discussed above. Furthermore, the evidence is
uncontested that Rink was provided with a fair opportunity to take corrective action in the
form of his Performance Improvement Plan. We do not see how Sable’s opinions to
which Rink points would have changed the District Court’s analysis or decision.
Rink suggests that the District Court erroneously overlooked part of AUSA
Michelle Olshefski’s testimony wherein she stated her impression that NEIU and Louise
18
Brzuchalski, specifically, were blaming Rink, among other individuals, for Rosetti’s
conduct. While Ms. Olshefski did testify to that, that still does not allow for a reasonable
inference in light of the evidentiary record taken as a whole that the “blame[]” NEIU and
Brzuchalski placed on Rink (and others) (App. 182), caused them to retaliate against
Rink for his cooperation with the government investigation by hiring the Kelly Firm,
colluding with them, or directing their audit so as to manufacture a reason to terminate
Rink—which is the issue here. Furthermore, Rink’s own testimony offers evidence that
Louise Brzuchalski pushed for Rink’s termination, according to Lamanna, as a result of
the Rosetti issues as early as January of 2011; this was not only before Rink spoke at
Rosetti’s sentencing but also before he was served with a subpoena from the U.S.
Attorney. Such evidence therefore undercuts Rink’s contention that Brzuchalski’s alleged
blaming of him was retaliation for his protected activity of cooperating with the
subsequent federal investigation and testifying at Rosetti’s sentencing, rather than his
own shortcomings in maintaining the financial books and records.
Rink argues that the District Court improperly credited the testimony of Kelly,
Murray, and Shovlin (all of whom testified that no one on the Board, nor anyone else,
asked them to find fault with Rink) and of Kelly and Murray (when they testified that
NEIU’s books were “unauditable” and criticized Rink’s accounting practices), and that
such a decision should have been left to the finder of fact. However, such a decision need
only be left to the finder of fact at trial if there is evidence on the other side of the issue
that would allow for a reasonable inference to the contrary, and here Rink has not pointed
to any such evidence. There is only his own speculation, based on his own further
19
speculation as discussed above, that the Board colluded with the Kelly Firm or with
Shovlin to find fault with him. His own proffered experts did not characterize Kelly’s
findings as being the result of anything other than Kelly and Murray’s professional
judgment, in which reasonable outside auditors could differ in approach or emphasis.
Kelly, Murray, and Shovlin did not testify as experts and did not offer their opinions as
such, and therefore there is no reason to disregard any parts of their factual testimony; nor
did the District Court improperly construe any of their testimony as expert opinions. “If a
witness is not testifying as an expert, testimony on the form of an opinion is limited to
one that is . . . rationally based on the witness’s perception; . . . helpful to clearly
understanding the witness’s testimony or to determining a fact in issue; and . . . not based
on scientific, technical, or other specialized knowledge within the scope of [Fed. R.
Evid.] 702.” Fed. R. Evid. 701. Courts “allow[] professionals to give lay opinions when
the opinions are based on personal knowledge of the issues, along with specialized
experience.” U.S. v. DeMuro, 677 F.3d 550, 562 (3d Cir. 2012). Here, Kelly, Murray,
and Shovlin testified to their own work and their own findings based on personal
knowledge, as well as their perceptions about what the Board retained them to do. This
Court discerns no error with the consideration of their testimony.
Kelly, Murray, and Shovlin’s testimony—as well as the testimony of the deposed
members of the Board—that they were hired to audit NEIU and to review Rink’s
performance (respectively), and that they did not discuss Rosetti with members of the
Board, or even know that Rink had made the statement at Rosetti’s sentencing hearing,
cannot create a genuine dispute of material fact where Rink has presented no evidence,
20
beyond his own surmise and speculation, as to whether the Kelly Firm and Shovlin were
in fact hired to manufacture or otherwise provide a pretextual reason to terminate him.
This is not a case where Rink has adduced evidence from which a reasonable fact-finder
could find he carried his “burden of establishing [that] his protected conduct . . . served as
a substantial or motivating factor in his dismissal.” Baldassare v. New Jersey, 250 F.3d
188, 200-01 (3d Cir. 2001). Cf. Feldman v. Philadelphia Hous. Auth., 43 F.3d 823, 831
(3d Cir. 1994) (“The record is replete with evidence from which [a] jury could properly
conclude that [a plaintiff’s] firing was directly precipitated by his engaging in protected
speech”; accordingly, “[the defendants’] attack on [the plaintiff’s] alleged incompetence
as the reason for his dismissal raised a jury issue.”).
Other evidence undercuts Rink’s contention as well: that Louise Brzuchalski, the
member of the Board who was one of the greater proponents of supposedly “blam[ing]”
Rink (App. 182), allegedly for embarrassing and blaming the Board during his sentencing
statement, herself invited more potential embarrassment of the Board by alerting the
media and Auditor General to Rosetti’s improprieties in the first place; that no other
participant in the Rosetti investigation was terminated besides Rink; or that the hiring of
the Kelly Firm occurred nine months before Rink criticized the Board at Rosetti’s
sentencing, where Rink has presented no evidence of what protected activity he
undertook before Kelly was hired that would have provoked the Board’s animus and
retaliatory motive he ascribes to it. In light of the Board’s own acquiescence in (and
indeed, initiation of) the investigation, Rink does not proffer a reason why simply
21
complying with a subpoena would have provoked the retaliatory animus in the Board that
his sentencing statement (which cast some blame on the Board) would have.
The Court agrees with Appellees that “there is simply no evidence that there was
an agenda to wrongly find fault with Rink’s accounting practices through the hiring of
auditors [and an] investigator” and relying on their findings as a basis for terminating
Rink in June of 2014. Appellee’s Br. at 36. We therefore affirm summary judgment on
this claim.
2.
For the same reasons, the Court upholds the District Court’s decision to grant
summary judgment on Plaintiff’s claim of retaliation under the Pennsylvania
Whistleblower Act (Count IV). The Pennsylvania Whistleblower Act states that “[n]o
employer may discharge . . . or retaliate against an employee . . . because the employee . .
. makes a good faith report . . . [of] an instance of wrongdoing or waste by a public body
or an instance of waste by any other employer”; nor may an employer “discharge . . . or
retaliate against an employee . . . because the employee is requested by an appropriate
authority to participate in an investigation, hearing or inquiry held by an appropriate
authority or in a court action.” 43 Pa. Cons. Stat. § 1423. The causal connection between
the protected activity and the retaliation is established in the same manner as under Title
VII and § 1983: by a showing of temporal proximity along with a pattern of antagonism.
McAndrew v. Bucks Cty. Bd. of Comm’rs, 982 F. Supp. 2d 491, 505 (E.D. Pa. 2013).
For the same reasons that the Court holds that Plaintiff did not present the required
22
evidentiary record to support a causal connection between his protected speech and his
termination in the First Amendment context, the Court similarly holds that Plaintiff has
failed to present the required evidentiary record from which a reasonable fact finder
could find a causal connection between his cooperation in the federal investigation and
his termination under the Pennsylvania Whistleblower Act. We affirm the grant of
summary judgment on this claim.
B.
Rink claimed in Count II that he was denied procedural due process rights. The
District Court granted summary judgment to Defendants on this claim, and we affirm.
“To state a claim under § 1983 for deprivation of procedural due process rights, a
plaintiff must allege that (1) he was deprived of an individual interest that is encompassed
within the Fourteenth Amendment’s protection of life, liberty, or property, and (2) the
procedures available to him did not provide due process of law.” Hill v. Borough of
Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006) (internal quotation marks omitted). A
property interest is not created by the Constitution; rather, it is created and its dimensions
“are defined by existing rules or understandings that stem from an independent source
such as state law[.]” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).
Rink claims he had a protected property interest in his continued employment by
NEIU. We have previously held that “[t]o have a property interest in a job . . . a person
must have more than a unilateral expectation of continued employment; rather, she must
have a legitimate entitlement to such continued employment.” Elmore v. Cleary, 399 F.3d
23
279, 282 (3d Cir. 2005). We have also held that “[t]he hallmark of a constitutionally
protected property interest is an individual entitlement that cannot be removed except for
cause.” Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1078 (3d Cir. 1990) (internal
quotation marks omitted). We look to Pennsylvania law to ascertain whether Rink had
such a constitutionally protected property interest.
Rink contends that he “was statutorily protected from removal during his term of
employment in that Section 10-1089 of the Pennsylvania School Code, 24 Pa. Cons. Stat.
§ 10-1089, needed to be complied with and in that he had an implied promise of
continued employment based on his history and experience with NEIU.” Appellant’s Br.
at 24-25.
Section 10-1089, which applies to school business administrators like Rink,
provides in relevant part:
(b) The governing board [of a school entity] may enter into a written
employment agreement with a person . . . to serve as a business
administrator . . . . The agreement may define the period of employment,
salary, benefits, other related matters of employment and provisions of
renewal and termination of the agreement.
(c) Unless otherwise specified in an employment agreement, the governing
board shall, after due notice, giving the reasons therefor, and after hearing if
demanded, have the right at any time to remove a business administrator for
incompetency, intemperance, neglect of duty, violation of any of the school
laws of this Commonwealth or other improper conduct.
24 Pa. Cons. Stat. § 10-1089(b)-(c).
In general, Pennsylvania employment law operates against a backdrop of at-will
employment: “Exceptions to the doctrine [of at-will employment] have generally been
limited to instances where a statute or contract limits the power of an employer
24
unilaterally to terminate the employment relationship.” Knox v. Bd. of Sch. Dirs., 888
A.2d 640, 647 (Pa. 2005). Under Pennsylvania law, an at-will employee may be
terminated by an employer “with or without cause, at pleasure, unless restrained by some
contract.” Shick v. Shirey, 716 A.2d 1231, 1233 (Pa. 1998) (quoting Henry v. Pittsburgh
& Lake Erie R.R. Co., 21 A. 157, 157 (Pa. 1891)).
It is undisputed that NEIU and Rink did not have a written employment
agreement. Knox holds that § 10-1089 applies to school business administrators who do
not have written employment agreements. 888 A.2d at 649. However, § 10-1089(c) “does
not provide a school business administrator with employment for life absent misconduct
falling into one of the enumerated statutory circumstances. . . . Rather, Section 10-
1089(c) merely provides a business administrator with a certain degree of job security
against removal during the term of his employment, whatever that term, as established by
the agreement of the parties, might be.” Id. at 649 (emphasis added).
The District Court held that Rink was not removed from his position at the May
2014 Board meeting, but rather that the Board voted at that meeting not to renew his
employment for the following year. The District Court also held that Rink was an at-will
employee and that Rink did not produce any evidence, beyond his own subjective
expectation, that he and NEIU entered into a verbal agreement establishing a specified
term of employment “sufficient to give rise to a property interest” in his continued
employment, nor any evidence that NEIU’s policies and practices gave rise to an
expectation of such continued employment. App. 34-35. The District Court also pointed
25
to the following statement made by Rink at Rosetti’s sentencing acknowledging his
employment was at-will:
In May of 1999, near the end of his first year in the Executive Director
position, Dr. Rosetti threatened to fire me and clear out my whole
department over a seemingly minor question raised by a member of my
office staff. While things quieted down afterwards, it was quite clear to me
that I had better be cautious in my dealings with this man. That same day, I
sought out legal counsel, and was told that Pennsylvania was an
employment at-will state, and that, unless I had an employment contract, I
could be terminated at any time.
App. 9.
While Rink’s subjective expectation may have been “perpetual” employment
absent misconduct, the case law is clear that an employee’s “subjective expectation of
continued employment [does] not spawn a property or liberty interest activating
protectable procedural due process rights.” Skrocki v. Caltabiano, 505 F. Supp. 916, 919
(E.D. Pa. 1981). An at-will employee, in general, has no specific term of employment.
While a plaintiff’s “long-term relationship with his employer” may “provide[] some
indicia of his expected term of employment” under Knox, 888 A.2d at 650, there is
simply insufficient evidence in the record before us to conclude that Rink was anything
other than an at-will employee of NEIU who had no specific term of employment. This is
especially true here, where Lamanna informed Rink in 2013 that he was in danger of
being terminated if he did not improve his performance to a certain level and Rink stated
that he believed himself to be an at-will employee in danger of termination at any time.
Rink cannot point to evidence in the record that shows that NEIU was contractually
prohibited from not renewing his employment. Where courts have found otherwise, it has
26
been on the basis of some additional evidence, such as an oral contract formed by an
employer telling an independent contractor that she would be employed for a particular
period of time. See Farr v. Chesney, 437 F. Supp. 521, 525-528 (M.D. Pa. 1977).
A closer question is presented by whether § 10-1089(c) of the Pennsylvania
School Code created for Rink a protected interest, such that some kind of process was
owed to Rink under the Due Process Clause.
The wording of § 10-1089(c) concerns itself only with removal of a business
administrator for “incompetency, intemperance, neglect of duty, violation of any of the
school laws of this Commonwealth or other improper conduct,” unless “otherwise
specified in an employment agreement.” 24 Pa. Cons. Stat. § 10-1089(c). Rink had no
employment agreement, and nothing in § 10-1089(c) confers an expectation against
termination for no reason, i.e., at will, because the statute only applies to the specified
types of termination for cause. The statute gives only a measure of assurance that, if a
business administrator is about to be fired for one of the specified reasons, the governing
board must give notice of reasons and an opportunity, if demanded, for a hearing. This
appears to be a procedural protection rather than an expectation of continued employment
absent good cause to terminate. In other words, if a governing board offers no reason but
simply decides to terminate the business administrator at will, nothing in § 10-1089(c)
prevents the board from doing so. Thus, this statute does not create a property interest in
continued employment, but it instead provides a procedural protection if the proposed
termination is for a listed type of misconduct. But even if one assumes for the sake of
argument that Rink had a property interest in continued employment through some
27
combination of § 10-1089 and the customs and understandings of NEIU, it is clear that
Rink cannot satisfy the second prong of his procedural due process claim because NEIU
gave him the process that was due.
To the extent that the Board’s decision at the May Board meeting, which it
characterized as a decision not to renew Rink’s term of employment for the following
year, constituted the “remov[al]” of a “business administrator” “for incompetency,
intemperance, neglect of duty, violation of any of the school laws of this Commonwealth
or other improper conduct,” the Board may have been required to provide Rink with “due
notice, giving the reason” for the removal, and to provide Rink with a hearing if he
demanded one. 24 Pa. Cons. Stat. § 10-1089. Such notice and opportunity to request a
hearing would satisfy any due process obligations. By later making the determination that
it was terminating Rink’s employment as a business administrator for cause, the statutory
protections of § 10-1089(c) were triggered.
Assuming that Rink qualified for the statutory protection afforded by § 10-
1089(c), Rink nevertheless cannot prevail upon his claim for failure to provide procedural
due process where, as here, NEIU provided Rink with the opportunity to demand a
hearing on June 27, 2014, prior to the effective date of termination on June 30, 2014.
App. 1652. No copy of the NEIU solicitor’s letter containing the notice of hearing
appears in the record, but Rink has not challenged the adequacy of notice in advising him
of the purposes of the termination hearing. The statute, in setting up this pre-termination
hearing right, required NEIU to convene a pre-termination hearing only “if demanded.”
24 Pa. Cons. Stat. § 10-1089(c). NEIU was thus not obligated to convene a hearing on its
28
own. Rink, through counsel, indicated in a letter of July 7, 2014 that Rink was explicitly
“not demanding a hearing on his dismissal for-cause.” App. 1652. Rink’s counsel’s
assertion that, since the June 30th termination date had elapsed, “the NEIU Board no
longer has the power to require him to demand a hearing,” is misplaced. The statute
leaves to the employee the opportunity to demand a hearing, which Rink could have done
whether or not NEIU formally offered that opportunity to him. Had Rink’s counsel
demanded a hearing at some time before the July 7, 2014 deadline, the prospect of
staying the June 30th termination pursuant to § 10-1089(c) would be raised, but that is
not the issue here.
We have previously held that “a procedural due process violation cannot have
occurred when the governmental actor provides apparently adequate procedural remedies
and the plaintiff has not availed himself of those remedies.” Alvin v. Suzuki, 227 F.3d
107, 116 (3d Cir. 2000). Rink submits that he was entitled to a hearing before the alleged
deprivation of his property interest and that a hearing in July after the Board voted not to
renew his contract in May was therefore inadequate. We disagree. The evidentiary record
indicates that the Board informed Rink that the conclusion of Rink’s employment with
NEIU would come “at the conclusion of the June 30, 2014, workday.” App. 1652. Rink
in fact enjoyed the opportunity to request a hearing and declined. He later, through
counsel, declined the opportunity to participate in the Board-scheduled hearing on July
23, 2014. App. 1652-53. We find that this is the situation contemplated in Alvin: “If there
is a process on the books that appears to provide due process, the plaintiff cannot skip
that process and use the federal courts as a means to get back what he wants.” 227 F.3d at
29
116. The Board provided Rink with the due process protections § 10-1089(c) requires,
and his claim that he was denied procedural due process cannot succeed.
For the foregoing reasons, we therefore affirm the District Court’s grant of
summary judgment to Defendants with regard to Rink’s procedural due process claim.
C.
We also affirm the District Court’s grant of summary judgment on Rink’s claim of
civil conspiracy in Count III. There can be no civil conspiracy to commit an unlawful act
under § 1983 where the plaintiff has not proven a deprivation of a constitutional or
federal statutory right or privilege. See Black v. Montgomery Cty., 835 F.3d 358, 372
n.14 (3d Cir. 2016); Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011). Here,
Rink has failed to demonstrate that the evidentiary record before the Court allows for a
reasonable inference that he was deprived of a federal constitutional or statutory right,
nor for a reasonable inference that any of the Defendants made an agreement or plan to
deprive Rink of such a right; accordingly, his claim for a civil conspiracy under § 1983
also fails.
III
For the foregoing reasons, we will affirm the District Court’s grant of summary
judgment to the Defendants and its entry of judgment on behalf of Defendants and
against Rink.
30