Thomas Kimmett v. Tom Corbett

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-2411
_____________
THOMAS D. KIMMETT,
Appellant
v.
TOM CORBETT; BRIAN NUTT;
WILLIAM RYAN; STEVE BRANDWENE;
MIKE ROMAN; JILL KEISER;
PENNSYLVANIA OFFICE OF THE ATTORNEY GENERAL;
JOHN DOES 1-10; LOU ROVELLI
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(No. 4-08-cv-01496)
District Judge: Hon. Matthew W. Brann
______________
Submitted Under Third Circuit LAR 34.1(a)
January 7, 2014
______________
Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges.
(Filed: January 28, 2014)
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OPINION
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SHWARTZ, Circuit Judge.
Thomas Kimmett claims that Thomas Corbett, Brian Nutt, William Ryan, Stephen
Brandwene, Michael Roman, Jill Keiser, and Louis Rovelli (collectively, the
“Defendants”) violated his First Amendment rights by failing to promote him and
ultimately terminating his employment at Pennsylvania’s Office of Attorney General
(“OAG”) in retaliation for his reporting alleged wrongdoing and mismanagement in the
OAG and the Pennsylvania Department of Revenue (“DOR”). The District Court granted
summary judgment in favor of Defendants. We will affirm.
I. Background
A. The Financial Enforcement Section
The Financial Enforcement Section (“FES”) is a section in OAG’s Civil Law
Division. The FES collects debts owed to various Commonwealth entities. It is
comprised of the Law unit and the Administrative Collections unit (“ACU”). The Law
unit handles bankruptcy cases and certain collection matters. The ACU collects debts
owed to state entities, including the DOR. If the FES collection efforts fail, these
uncollected debts are referred to private collection agencies (“PCAs”). The ACU
manages PCA contracts, receives payments from the PCAs, and pays PCAs commissions
on debts they collect. Occasionally, debtors whose accounts are referred to PCAs pay the
“client” agency directly. In these so-called “pay direct” cases, the ACU pays the PCA its
commission and then bills the appropriate client agency.
2
B. Kimmett’s Tenure at FES
Before Kimmett was hired as the ACU Supervisor, problems were uncovered. For
example, the software system used to manage accounts was found to be inadequate,
requiring employees to use manual processes for many collection tasks. In addition, PCA
contracts contained inconsistent language and contractual terms concerning the PCAs’
obligations to pay interest on amounts held for the Commonwealth and terms requiring
audits of PCAs’ financial statements were not enforced.
In light of these problems, Executive Deputy Attorney General Rovelli, the
Director of the Civil Law Division,1 hired Kimmett, who had both a legal and accounting
background, as a Senior Deputy Attorney General to manage the ACU. Kimmett was
expected to “manage administrative collections,” address “the breakdown in the fund
flow,” and “modernize the operation.” App. 65. According to Kimmett, his “marching
orders” were to “review all aspects of [the FES] and identify any problems, issues,
improprieties, etc. that exi[s]t in the operation.” App. 566. To reach this goal, Kimmett
sought to complete a “cradle-to-grave review of the FES collection operation” and hoped
to “[d]evelop better working relationships with state-agencies.” App. 465. Day-to-day,
Kimmett was responsible for managing PCA contracts, developing procedures for the
review and approval of commission payments, including “pay directs,” reviewing and
approving certain settlements with debtors (“compromises”), working with other state
1
Rovelli reported to Ryan, who, as the First Deputy Attorney General, was
directly below Attorney General Corbett in the OAG chain of command. Ryan oversaw
all legal and administrative matters on the law side of the OAG. Corbett’s Chief of Staff,
Nutt, also reported directly to Corbett. Nutt was not directly responsible for any part of
the Civil Law Division, including the FES.
3
agencies, especially the DOR, and addressing legal issues relating to his unit’s work.
Kimmett supervised a staff of eight to twelve people, including Jill Keiser,2 and reported
to Brandwene, the FES Chief.
Kimmett claims he discovered evidence of mismanagement, improprieties, and
malfeasance in both the FES and the DOR. As to the FES, Kimmett claimed that: (1)
FES employees destroyed accounting documents; (2) certain FES and DOR employees
treated PCAs too favorably by allowing them to collect commissions on accounts for
which they did no work and withhold interest on amounts they collected; and (3) the FES
collection process was slow and inefficient. As to the DOR, Kimmett claimed that it: (1)
refused to collect certain fees from debtors as required by law; (2) authorized an unearned
payment of approximately $300,000 to a PCA; (3) approved unjustified debt
compromises; and (4) approved certain compromises that allowed debtors to circumvent
the DOR appeals process.
Kimmett claims that he raised these concerns within and outside of his chain of
command,3 as well as to an Assistant United States Attorney, an FBI agent, a former
colleague who worked at the Pennsylvania Commission on Crime and Delinquency, and
the Executive Director of the Team Pennsylvania Foundation (“non-OAG/DOR
individuals”). There is no evidence that Defendants knew of Kimmett’s conversations
with these non-OAG/DOR individuals.
2
Keiser was the ACU Supervisor before Kimmett. After Kimmett’s hiring, she
was below Kimmett in the chain of command. The record does not disclose retaliatory
acts she purportedly took against him.
3
Nutt was outside of Kimmett’s chain of command.
4
Kimmett claims Defendants ignored these issues, and, in retaliation for his
complaints, declined to promote him to FES Chief when Brandwene retired. Instead, the
OAG hired Michael Roman as FES Chief.
Roman and Rovelli grew increasingly dissatisfied with Kimmett’s performance.
They claimed that they received complaints that Kimmett frequently and needlessly
rejected compromises, harshly treated his staff, and consistently failed to follow protocol
when communicating with DOR employees. In June 2008, Roman and Rovelli removed
Kimmett from a large software project that he had spearheaded. Rovelli and Roman also
voiced their concerns about Kimmett to Ryan and the three of them decided to transfer
Kimmett to the Law unit.
In August 2008, Kimmett filed a federal Complaint, asserting that Corbett, Nutt,
Ryan, Ravelli, Brandwene, and Roman and certain high-level employees at the DOR
failed to promote him in retaliation for his complaints of wrongdoing in the collection
process and that they failed to investigate this “illegal misconduct” for “purely political
purposes.” App. 220-21. Kimmett also alleged that DOR employees “participated in the
unlawful actions of the other defendants, including Corbett, in unlawfully covering up the
illegal activities” and engaged in the “conspiratorial destruction of [Kimmett’s]
promotional opportunities.” App. 230.
According to Rovelli, the lawsuit damaged Kimmett’s working relationships with
his supervisors and the DOR, and his allegations of criminal behavior by Corbett and
DOR employees led Rovelli to conclude that Kimmett could not litigate in the name of
5
the Attorney General or on behalf of the DOR. As a result, the plan to transition
Kimmett to the Law unit was abandoned.
In November 2008, Kimmett received his second annual performance evaluation.4
The evaluation criticized his allegedly unwarranted disapprovals of compromises, failure
to complete the software project, and negative attitude. The evaluation also included a
remedial plan that required Kimmett to work closely with Roman on all proposed
compromises to ensure that Kimmett was acting reasonably.
In his response to the evaluation, Kimmett stated that: (1) he believed that “the
entire evaluation [was] inappropriate because it is part of an orchestrated and deliberate
effort” by OAG staff to “discredit” him since his lawsuit, App. 331; (2) he found it
“surreal” that individuals he sued were the same individuals reviewing him, App. 331; (3)
Roman “was placed in [the position of Chief of the FES] to stifle and curtail any further
investigations . . . and to fabricate and trump up charges against [him],” App. 333; and
(4) while he welcomed an inquiry into compromise practices, such an examination could
not “be performed by Roman or anyone in the Civil Law Division in a fair and unbiased
way and not become a backdoor attempt to fabricate charges against [him].” App. 334.
Rovelli viewed Kimmett’s response as “unmeasured and intemperate” and showed
an unwillingness to accept supervision and a refusal to cooperate with the remedial plan.
App. 910-12. Rovelli recommended that Corbett terminate Kimmett. After a meeting
4
The evaluation was written three days before Kimmett filed his Complaint, but
its delivery was delayed until November 2008 by agreement of Kimmett’s trial counsel
and the OAG.
6
with Rovelli, Ryan, and Nutt, Corbett approved Rovelli’s recommendation and
terminated Kimmett.
After his termination, Kimmett filed an Amended Complaint alleging, among
other things, that the Defendants retaliated against him in violation of the First
Amendment by failing to promote him and by terminating his employment.5 After
discovery, the parties filed cross-motions for summary judgment. The District Court
granted Defendants’ motion and held that, while portions of Kimmett’s speech were
made as a citizen and addressed matters of public concern, Defendants were nevertheless
entitled to summary judgment because the OAG’s interest in workplace harmony
outweighed Kimmett’s and the public’s interest in Kimmett’s speech.6 Kimmett appeals
the District Court’s order granting Defendants’ motion.7
5
Kimmett’s free speech claim was brought under the First Amendment’s Speech
Clause and his allegation of retaliation for filing his lawsuit is based on its Petition
Clause. The standards applicable to each type of protected conduct are similar. Borough
of Duryea, Pa. v. Guarnieri, 131 S. Ct 2488, 2494-95 (2011).
6
The District Court declined to exercise supplemental jurisdiction over Kimmett’s
Pennsylvania Whistleblower Law and defamation claims. See 28 U.S.C. § 1367(c)(3).
7
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a District
Court’s order granting summary judgment. Jacobs Constructors, Inc. v. NPS Energy
Servs., Inc., 264 F.3d 365, 369 (3d Cir. 2001). Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In reaching this decision,
the Court must determine “whether the pleadings, depositions, answers to interrogatories,
admissions on file, and affidavits show that there is no genuine issue of material fact and
whether the moving party is therefore entitled to judgment as a matter of law.”
Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir. 2012) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)).
7
II. Discussion
To prevail on a First Amendment retaliation claim, a public employee must
demonstrate that: (1) he or she engaged in activity that is protected by the First
Amendment, and (2) the protected activity was a substantial factor in the employer’s
retaliatory action. Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009). “The first
factor is a question of law; the second factor is a question of fact.”8 Id. (quotation marks
and citation omitted). “If these two elements are satisfied, the burden shifts to the
defendants to demonstrate that the same action would occur if the speech had not
occurred.” Id.
The Court proceeds through three steps to ascertain whether a public employee’s
speech is protected by the First Amendment. First, the Court must determine whether the
employee’s speech was made pursuant to his or her official duties, which would not be
protected by the First Amendment, or whether it was made as a citizen, which would be
protected by the First Amendment.9 Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
Second, if the speech was not made pursuant to an employee’s official duties, the Court
8
Summary judgment is appropriate if a plaintiff fails to adduce sufficient evidence
on one of the factors typically reserved for the jury. See Hill v. City of Scranton, 411
F.3d 118, 127 (3d Cir. 2005). Here, Kimmett has adduced no evidence establishing that
Defendants were aware of the communications he made to the non-OAG/DOR
individuals. Thus, these communications could not have been a substantial or motivating
factor in the alleged retaliatory actions. Ambrose v. Twp. of Robinson, 303 F.3d 488,
493 (3d Cir. 2002). For this reason, summary judgment in favor of Defendants as to
these communications is appropriate.
9
If an employee’s speech was made pursuant to his official duties, “we need not
examine whether [his] speech passes the [second and third steps, which were] established
by [Pickering v. Board of Education, 391 U.S. 563 (1968),] and its progeny.” Foraker v.
Chaffinch, 501 F.3d 231, 243 (3d Cir. 2007), abrogated on other grounds by Borough of
Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488 (2011).
8
considers whether “the employee spoke as a citizen on a matter of public concern.” Id. at
418. Third, if the answer to that question is yes, the Court must determine “whether the
relevant government entity had an adequate justification for treating the employee
differently from any other member of the general public.” Id. When making this
determination, the Court attempts to “‘balance . . . the interests of the [employee], as a
citizen, in commenting upon matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it performs through its
employees.’” Id. (quoting Pickering, 391 U.S. at 568).
A. Citizen Speech or Pursuant to Employment Duties
While the Supreme Court has not articulated a “comprehensive framework for
defining the scope of an employee’s duties,” it has held that the “proper inquiry is a
practical one.” Id. at 424-25. When making this “practical” inquiry, the Court examines,
among other things: (1) whether the employee’s speech relates to “‘special knowledge’ or
‘experience’ acquired through his job,” Gorum, 561 F.3d at 185 (citing Foraker, 501 F.3d
at 240); (2) whether the employee raises complaints or concerns about issues relating to
his job duties “up the chain of command” at his workplace, Foraker, 501 F.3d at 241; (3)
whether the speech fell within the employee’s designated responsibilities, Gorum, 561
F.3d at 186;10 and (4) whether the employee’s speech is in furtherance of his designated
duties, even if the speech at issue is not part of them. See Foraker, 501 F.3d at 243.
10
While a formal job description is not dispositive for determining whether the
employee’s acts were “within the scope of [his] professional duties for First Amendment
purposes,” Garcetti, 547 U.S. at 425, we examine it to determine if it accurately describes
9
In this case, Kimmett’s conduct can be divided into three categories: (1) the filing
of this lawsuit; (2) communications with others at the OAG; and (3) communications
with DOR employees or about DOR issues. While the first category of speech—the
current lawsuit—is outside of Kimmett’s job duties, Kimmett’s speech in the last two
categories was a part of his job duties.
1. Communications within the OAG
Kimmett’s speech within the OAG was made pursuant to his job duties as the
ACU Supervisor. First, much of the speech that Kimmett points to was made directly to
his immediate supervisor about the unit. Because this speech was made up the chain of
command and related to his employment duties, it was pursuant to his job duties. See
Foraker, 501 F.3d at 241. Second, his speech to Nutt and to individuals higher in the
chain of command related to the treatment of PCAs, the FES collection process, the
approval of compromises, and document destruction by FES employees before he was
hired. As the ACU Supervisor, Kimmett was directly responsible for managing the PCA
contracts, the FES collection process, the compromise process, and subordinates within
ACU. Accordingly, this speech was pursuant to his job duties, and, thus, cannot provide
a basis for relief under the First Amendment. See Garcetti, 547 U.S. at 421 (“[W]hen
public employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution does not
the employee’s duties, and, if so, we will consider the job description when determining
whether the employee spoke pursuant to those duties. See Gorum, 561 F.3d at 186.
10
insulate their communications from employer discipline.”). Thus, summary judgment in
favor of the Defendants on this speech was appropriate.
2. Speech to DOR Employees or about DOR Issues
Kimmett’s job required him to work closely with the DOR and other agencies that
referred debts to the ACU. The ACU was required to review proposed compromises
from other agencies and to pay commissions to PCAs after a “direct pay” from a debtor
to the agency. Because Kimmett worked closely with other agencies, he frequently
gained information about their internal operations, much of which was relevant to his
duties as the ACU Supervisor.
Most of the speech that Kimmett points to relates to the payment of an
unauthorized PCA commission and problems with certain debt compromises. These
areas fall within Kimmett’s express duties as the ACU Supervisor. Moreover, to the
extent that his complaints about the DOR concerned subjects that fell outside of his
express duties, Kimmett learned about them through his close working relationship with
the DOR. Further, because the ACU worked so closely with the DOR, any impropriety
or mismanagement at the DOR would necessarily affect the efficient operation of the
ACU. Thus, Kimmett’s communications regarding the problems at the DOR relate to his
“special knowledge” of the DOR’s operations that he obtained by virtue of his position at
the FES, see Gorum, 561 F.3d at 185-86, and were in furtherance of his managerial duties
in the ACU. See Foraker, 501 F.3d at 243. For these reasons, his speech to DOR
employees or concerning DOR issues was within his job duties and, under Garcetti and
Foraker, the allegedly retaliatory responses could not give rise to a First Amendment
11
claim, and thus, summary judgment on this speech in favor of the Defendants was
appropriate.
B. Matter of Public Concern
Since Kimmett’s lawsuit is the only activity that could potentially be protected, we
must next determine whether the lawsuit relates to a matter of public concern. An
employee’s speech “implicates a matter of public concern if the content, form, and
context establish that the speech involves a matter of political, social, or other concern to
the community.” Miller v. Clinton Cnty., 544 F.3d 542, 548 (3d Cir. 2008); see also
Connick v. Myers, 461 U.S. 138, 148 (1983) (noting that speech that “bring[s] to light
actual or potential wrongdoing or breach of public trust” is a matter of public concern);
Czurlanis v. Albanese, 721 F.2d 98, 104 (3d Cir. 1983) (holding that allegations of
“inefficient, wasteful, and possibly fraudulent” government practices are matters of
public concern). As Defendants concede, Defendants Br. 32, Kimmett’s lawsuit
concerned allegations of actual or potential wrongdoing on the part of the OAG and
hence it relates to matters of public concern.
C. Pickering Balancing
This Court must next determine whether Kimmett’s “interest in the speech
outweighs any potential disruption of the work environment and decreased efficiency in
the office.” Curinga v. City of Clairton, 357 F.3d 305, 312 (3d Cir. 2004).11 If it does
not, then Kimmett’s speech is not protected by the First Amendment. Id. at 314.
11
Defendants argue that this Court should apply the holdings of two First
Amendment freedom of association cases, Elrod v. Burns, 427 U.S. 347 (1976), and
12
When evaluating the disruption, we consider “whether the statement impairs
discipline by superiors or harmony among co-workers, has a detrimental impact on close
working relationships for which personal loyalty and confidence are necessary, or
impedes the performance of the speaker’s duties or interferes with the regular operation
of the enterprise,” Rankin v. McPherson, 483 U.S. 378, 388 (1987), as well as “the
hierarchical proximity of the criticizing employee to the person or body criticized.”
Baldassare v. State of N.J., 250 F.3d 188, 199 (3d Cir. 2001) (quotation and citation
omitted).
Courts must also bear in mind that an employee who “accurately exposes rampant
corruption” will no doubt cause a workplace disruption. O’Donnell v. Yanchulis, 875
F.2d 1059, 1062 (3d Cir. 1989) (citation and quotation marks omitted). In such a case,
given the public’s strong interest in legitimate whistleblowing, it would be “absurd to
hold that the First Amendment generally authorizes corrupt officials to punish
subordinates who blow the whistle simply because the speech somewhat disrupted the
office . . . .” O’Donnell, 875 F.2d at 1062 (3d Cir. 1989) (citation and quotation marks
omitted). Thus, the mere existence of a workplace disruption may not be sufficient to
overcome the employee’s interest. Czurlanis, 721 F.2d at 107. Instead, a public
Branti v. Finkel, 445 U.S. 507 (1980), wherein the Supreme Court explained that a public
employer may dismiss an employee in a policymaking position based on political
affiliation. See Curinga, 357 F.3d at 310. Because this is not a freedom of association
case, we do not explicitly consider Elrod and Branti, but when conducting the Pickering
balance, we do consider the responsibility and authority attendant to Kimmett’s position
as the ACU Supervisor, and whether it “required confidentiality and a close working
relationship” with policymakers. Id. at 313.
13
employer must tolerate a workplace disruption so long as it is “directly proportional to
the importance of the disputed speech to the public.” Miller, 544 F.3d at 549 n.2.
Kimmett’s lawsuit publicly accused his entire chain of command and staff at the
DOR with whom he worked with “unlawfully covering up . . . illegal activities” for
“purely political purposes.” App. 221, 230. These allegations of politically motivated
illegal behavior would certainly “impair[] discipline” and “harmony among co-workers,”
Rankin, 483 U.S. at 388, at the OAG, particularly with Kimmett’s immediate supervisors,
Rovelli and Roman, see Baldassare, 250 F.3d at 200; Roseman v. Ind. Univ. of Pa., at
Ind., 520 F.2d 1364, 1368 (3d Cir. 1975) (affirming dismissal of First Amendment claim
when speaker’s expression “called into question the integrity of the person immediately
in charge of running a department”), as well as the DOR. Indeed, his supervisors
confirmed as much when Rovelli testified that Kimmett’s lawsuit damaged his working
relationships in the OAG and the DOR and when they cancelled plans to move Kimmett
to the Law unit.
Moreover, Kimmett himself stated that even being reviewed by his supervisors
was “inappropriate because it [was] part of an orchestrated and deliberate effort” by OAG
staff to “discredit” him since his lawsuit. App. 331. In addition, even though he was
required to work with Roman on compromises pursuant to his remedial plan, he claimed
that, in light of the lawsuit, a review of the compromise process could not “be performed
by Roman or anyone in the Civil Law Division in a fair and unbiased way and not
become a backdoor attempt to fabricate charges against [him].” App. 334. Hence,
according to Kimmett, because of his lawsuit, it was “inappropriate” for his supervisors
14
to review his work and he could not complete one of his assigned tasks in the remedial
plan. For this reason, and as the District Court found, Kimmett’s own statements
demonstrate that his lawsuit “impair[ed] discipline by superiors,” had “a detrimental
impact on close working relationships for which personal loyalty and confidence are
necessary,” and “impede[d] the performance of the speaker’s duties or interfere[d] with
the regular operation of the enterprise.” Rankin, 483 U.S. at 388. While the public has a
“significant interest in legitimate whistleblowing,” the extent of the disruption caused by
Kimmett’s allegations in his lawsuit tilts the Pickering balance in favor of Defendants.
As a result, his First Amendment retaliation claim fails and summary judgment was
appropriate.
III. Conclusion
For these reasons, we will affirm.
15