2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-13-2011

Donald Kovac v. PA Turnpike Comm

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-4730

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Recommended Citation

"Donald Kovac v. PA Turnpike Comm" (2011). 2011 Decisions. Paper 539.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________ 

No. 10-4730

_____________

 

DONALD KOVAC, 

 Appellant

v.

PENNSYLVANIA TURNPIKE COMMISSION; 

MITCHELL RUBIN; GEORGE HATALOWICH; 

MELVIN M. SHELTON; MARK ROWE 

_____________

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 2-09-cv-00400)

District Judge: Honorable Terrence F. McVerry

_____________ 

Submitted Under Third Circuit LAR 34.1(a)

September 12, 2011

Before: RENDELL, JORDAN and BARRY, Circuit Judges.

(Opinion Filed: September 13, 2011) 

_____________

OPINION OF THE COURT 

_____________

RENDELL, Circuit Judge.

Donald Kovac urges on appeal that the District Court erred in granting 

summary judgment to the Defendants on Kovac’s claims that he was terminated 

from his job at the Pennsylvania Turnpike Commission because of his political 
2

affiliation, or because he exercised his right to free speech, in violation of 42 

U.S.C § 1983.1 We will affirm.2

I.

Kovac was employed as a Labor Relations Manager by the Pennsylvania 

Turnpike Commission (“PTC”) between April 2005 and November 2008, when he 

was terminated from his position. He alleges that a confluence of events and 

conspiracies caused him to be fired in retaliation for either negative comments he 

made about U.S. Congressman Robert Brady to PTC Chief Executive Officer 

Joseph Brimmeier, or for his refusal to show loyalty to Teamsters Union Local 77 

(“Local 77”) when adjudicating union grievances. In his complaint, Kovac named 

PTC and its Chairman Mitchell Rubin, Chief Operating Officer George 

Hatalowich, employee Melvin Shelton, as well as Local 77 Business Agent Mark 

Rowe (“Defendants”). Kovac alleges that because of his comments about 

Congressman Brady, or his disloyalty to Local 77 in resolving grievances, Rowe 

 

1 The original complaint also included a whistleblower claim filed under 

Pennsylvania state law, but that issue was dismissed by stipulation and agreement 

of all parties pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii).

2 Our jurisdiction over this matter is proper pursuant to 28 U.S.C. § 1291. We 

exercise plenary review over a District Court’s decision to grant summary 

judgment. Hugh v. Butler Cnty Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005). 

We apply the same test as the District Court: whether there is a genuine issue of 

material fact, and, if not, whether the moving party is entitled to judgment as a 

matter of law. Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994), 

abrogated on other grounds by Showalter v. Univ. of Pittsburgh Med. Ctr., 190 

F.3d 231 (3d Cir. 1999). 
3

and Shelton requested that PTC Chairman Rubin fire Kovac. Kovac further 

alleges that Rubin subsequently brought Defendant Hatalowich in on the scheme. 

At the close of discovery, Defendants each moved for summary judgment.3 

After reviewing the evidence, the District Court held that a reasonable jury could 

not find that Kovac had satisfied the necessary elements of his claims. In 

particular, the District Court found Kovac had insufficient evidence of a link 

between his protected activities and the termination of his employment. As a 

result, the District Court granted summary judgment in favor of the Defendants. 

Kovac filed a timely appeal.

II.

To establish a claim for retaliation under 42 U.S.C. § 1983 based on 

political activity a plaintiff must demonstrate:

(1) that the employee works for a public agency in a position that 

does not require a political affiliation, (2) that the employee 

maintained an affiliation with a political party, and (3) that the 

employee’s political affiliation was a substantial or motivating factor 

in the adverse employment decision.

Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 663-64 (3d. Cir 2002) (quoting 

Robertson v. Fiore, 62 F.3d 596, 599 (3d Cir. 1995) (internal quotation marks 

omitted)). Similarly, to establish a retaliation claim based on protected First 

Amendment activity under 42 U.S.C § 1983, “a plaintiff must allege two things: 

(1) that the activity in question is protected by the First Amendment and (2) that 

 

3

The three PTC employees shared the same legal counsel while Rowe was 

separately represented.
4

the protected activity was a substantial factor in the alleged retaliatory action.”

Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006). 

The District Court granted summary judgment because Kovac failed to 

produce evidence upon which a reasonable jury could find that his protected 

activity was a substantial or motivating factor for his termination. As the District 

Court wrote: 

In summary, a reasonable jury could not conclude from this record 

that a “substantial or motivating reason” for Kovac’s termination 

was due to retaliation by Defendants for Kovac’s alleged protected 

activities. Evidence of the requisite causal link does not exist in this 

record.

(App’x 13.) Consequently, the sole issue before our Court is whether there was 

sufficient evidence upon which a reasonable jury could decide that there was a 

causal link between Kovac’s alleged protected activity and the termination of his 

employment. To establish this casual link:

[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. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). In the 

absence of these elements, we have held that evidence of causation may be 

“gleaned from the record as a whole.” Farrell v. Planters Lifesavers Co., 206 

F.3d 271, 281 (3d Cir. 2000). In addition, summary judgment may be defeated 

when “a reasonable inference can be drawn that an employee’s speech was at least 

one factor considered by an employer in deciding whether to take action against 
5

the employee.” Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 795 (3d Cir. 

2000). However, even if the protected activity is a factor, “the employer may 

defeat the employee’s claim by demonstrating that the same adverse action would 

have taken place in the absence of the protected conduct.” Hill v. City of 

Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (citing Mt. Healthy City Sch. Dist. Bd. 

of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

Kovac’s evidence consisted mainly of his own testimony. According to 

Kovac, Shelton and Rowe repeatedly threatened to have him fired, and increased 

their hostility towards him in the final year of his employment. In addition, Kovac 

asserts he made negative comments to Brimmier about Shelton and Congressman 

Brady, which somehow reached Shelton, Rowe, Hatalowich, and Brady’s son, 

who also worked at PTC, and thereby caused Kovac to be fired. However, 

Kovac’s testimony as to whether Rubin had any knowledge of Kovac’s comments, 

or that he interacted with Shelton, or Rowe, or that Shelton and Rowe conspired 

with each other to have Kovac fired was vague, speculative and conclusory. There 

was little or no evidence to show that Brimmier and Hatalowich ever discussed the 

comments Kovac alleges he made to Brimmier. 

The only corroborating evidence Kovac presented was that Hatalowich 

knew Shelton and Kovac had “conflicts and difficulties” in the past, that several 

years before his termination Shelton and Rowe may have pressured Kovac about 

certain union and political issues, and that PTC Hatalowich and Brimmier met 

with the head of Kovac’s department about her budget and personnel plan before 
6

any layoffs were announced. This evidence is insufficient to create a genuine 

issue of material fact. We agree with the District Court that there is simply too

little support for a causal chain between Kovac’s alleged protected activities and 

his termination for a reasonable jury to be able to infer that his termination was a 

retaliatory act caused by his protected activities. 

In retaliation cases where we have found sufficient evidence to defeat 

summary judgment, the circumstantial causation evidence has been much stronger. 

For example, in Scranton the plaintiffs’ evidence of retaliation was sufficient to 

defeat summary judgment where the plaintiff was terminated for violating a local 

residency requirement while other similarly situated employees who had not 

engaged in protected activities were not terminated. 411 F.3d at 127. Likewise, in 

Merkle, the protected activity was well documented, and objective evidence and 

disinterested testimony showed the alleged retaliatory action – a criminal 

prosecution – may have been caused by the plaintiff’s decision to engage in 

protected activity. 211 F.3d at 795. Similarly, in San Filippo v. Bongiovanni, we 

found the evidence sufficient to defeat summary judgment where there had been

public statements by a terminated employee’s superior that he “might have been 

treated differently,” had “he behaved better earlier in terms of his relations with 

his colleagues.” 30 F.3d 424, 434 (3d Cir. 1994).

In each of these cases, there was sufficient evidence to create a genuine 

issue of material fact as to whether the actions were triggered by a desire to 

retaliate against the plaintiff for engaging in protected activity. In contrast, in the 
7

instant case, there is no evidence of a similar nature. Instead, Kovac’s case is 

analogous to DeFlaminis, where we upheld summary judgment, because there was

simply no evidence in the record to support an inference of causation. See 480 

F.3d at 272.4

We need not address Defendants’ contention that Kovac was terminated 

along with others for budgetary reasons – and due to his poor performance –

because Kovac’s failure to offer sufficient evidence of causation dooms his case.

III.

For the foregoing reasons, we will affirm the District Court’s grant of 

summary judgment.

 

4 Kovac also urges that “how” he was terminated and the fact that his 

unemployment benefits were contested after he was fired constitutes evidence of 

causation. We are not persuaded that this evidence helps Kovac satisfy his 

burden.