2014 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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# Thom a s Kimmett v

. T om C orb ett

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t 13-2411

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w . v i l l a no v a . e du/thir dc ir c uit_2014/115NOT 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 BRA NDWENE; 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. Ma tthew W. Brann

______________ Submitted Under Third Circuit LAR 34.1(a)

January 7, 2014

______________ Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges

.

(Filed: January 28 , 2014)

______________ OPINION

______________2

SHWARTZ, Circuit Judge

. Thomas Kimmett claims that Thomas Corbett, Brian Nutt, William Ryan, Stephen Brandwene, Michael Roman, Jill Keiser, and Louis Rovelli (collectively, the “Defend ants”) violated his First Amendment rights by failing to promote him and ultimately terminating his em ployment 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 Defe ndants. We will affirm.
I. Background A. The Financial Enforcement Section The Financial Enforcement Section (“FES”) is a section in OAG’s Civil Law
D ivision. The FES collects debts owed to various Commonwealth entities . I t is comprised of the Law uni t and the Administrative C ollections u nit (“ACU”) . The Law unit handles bankruptcy cases and certain collection matters

. The ACU collects debts owed to state entities , including t he DOR

. If the FES collection efforts fail, these uncollected debts are re ferred to private collection agencies (“PCAs”)

. The ACU
manages PCA contracts , receives payments from the PCAs , and pays PCAs commission s on debts they collect

. Occasionally , debtor s 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.3

B. Kimmett’s Tenure at FES Before Kimmett was hired as the ACU Supervisor , problems were uncovered . For example, the software syste m 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 ’ obligation s to pay interest on amount s held for the Commonwealth and terms requiring audi t s 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 hire d Kimmett, who had both a le gal 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 collecti on 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 p ayments, including “pay di rects, ” 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 Corbet t in the OAG chain of command. Ryan overs aw 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.4

agencies, especially the DOR, and addressing legal issues relating to his unit’s work. Kimmett supervised a staff of eight to twelve people , includi ng 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 employee s destroyed accounting d ocuments ; (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 inefficie nt. 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 compromise s; and (4) approved certain com promises 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 Attor ney, an FBI agent, a former colleague who worked at the Pennsylvania Commission on Crime and Delinquency , and the Executive Director of the Team Pennsy lvania 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 Sup ervisor 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.5

Kimmet t 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 gr ew increasingly dissatis fied w ith 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 Kimmet t 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 wrong doing in the collection process and that the y failed to inves tigate this “illegal misconduct” for “purely political purposes.” App. 22 0

- 2 1. Kimmett also alleged that DOR employees “part icipated in the unlawful actions of the other defendants , including Corbett, in unlawfully cov ering 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 Cor bett and DOR employees led Rovelli to conclude that Kimmett could not litigate in the name of6

the Attorney General or on behalf of the DOR. As a result, t he plan to transition Kimmett to the Law unit was abandoned. In November 2008, Kimmett received hi s second annual performance evaluation

. 4
The evaluation criticized his alleged ly unwarranted disapprovals of compromises, failure
to complete the softw are 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 believe d that “the entire evaluation [was] inappropriate because it is part of an orchestra ted 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 sti fle 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 show ed an unwillingness to accept supervision and a refusal to c oo perate with the remedial plan

. App. 9 10

- 12. Rovelli recommended that Corbett terminate Kimmett . After a meeting

4 The evaluation was writte n 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.7

with Rovelli, Ryan, and Nutt, Corbett approved Rovelli’s recommendation and
terminated Kimmett

. After his termination, Kimmett filed an Am ended C omplaint alleging , among other things, t hat 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 judgmen t. 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 work place harmony outweighed Kimmett’s and the public’s interest in Kimmett’s speech. 6 Kimmett appeals the District Co urt’s order g ranting Defendant s ’ 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 exercis e 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 exerc ise 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 t o 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)).8 II. Discussion To prevail on a First Amendment retaliation claim, a public employee must demonstra te 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

occurr ed. ” 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 wo uld 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, i f the speech was not made pursuant to an employee’s official duti es, 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 action s . 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 [seco nd 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)

.9

considers whether “the employee spoke as a citizen on a matter of public concern.” Id. at 418. Third, i f 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 a rticulate d a “comprehensive framework for defining the scope of an employee’s duties,” it has he ld 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 ch ain 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 th e speech at issue is not part of them

. S ee 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 acc urately describes10

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 employee s or about DOR issues

. While t he 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 OA G 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 24 1. Second, his speech to Nutt and to individu als higher in the
chain of command related to the treatment of PCA s, the FES collection process , the approval of compromises, and document destruction by FES employees before he was hired . As the ACU Supervisor, Kimmett was directl y responsible for managing the PCA
contracts, the FES collection process , the compromise process , and subordinates with in
ACU . Accordingly, this speech was pursu ant to his job dutie s, 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. S ee Gorum , 561 F.3d at 186

.11

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

. T he 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. B ecause 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 unauthor ized PCA commission and problems with certain debt compromises. These areas fall within Kimmett’s expr ess 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 a t the DOR would necessarily a ffect the efficient operation of the
ACU

. Thus, Kimmet t’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, s ee 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 reaso ns, 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 Amendment12

claim , and thu s, 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, w e must next determine whether the lawsuit relate s 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, 54 8 (3d Cir. 2008) ; see also Connick v. Myers , 461 U.S. 138, 148 (1983) (noting that s peech 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. 198 3) (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 th e part of the OAG and hence it relates to matter s 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
th e 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 t wo First Amendment freedom of association cases , Elrod v. Burns , 427 U.S. 347 (1976), and13

When ev aluating the disruption, we consider “ whether the statement impairs disciplin e 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 regu lar 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.”
Bal dassare v. State of N.J. , 250 F.3d 188, 199 (3d Cir. 2001) (quotation and citation omitted ).
C ourts 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 w h istleblowing, 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 s omewhat 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 politica l 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 Kimmet t’s p osition as the ACU Supervisor , and whether it “required confidentiality and a close working relationship” with policymakers. Id. at 313.14

emp loyer 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 w ith wh om he worked with “unlawfully covering up . . . illegal activities ” for “purely political purposes.” App. 221 , 230. These allegations o f politically motivated illegal behavior would certainly “impair [] discipline” and “harmony among co

- workers,”
Ra nkin , 483 U.S. at 388 , at the OAG , particularly with Kimmett’s immediate supervisors, Rovelli and Roman, s ee 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 Fir st Amendment clai m 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 [wa s ] part of an orchestrated and deliberate e ffort” 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 cou ld 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 super visors15

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 loyal ty and confidence are necessary,” and “impede [ d ] the performance of th e 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.