J-S33019-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID OLSON 

Appellant

v.

LEHIGH UNIVERSITY

Appellee

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1118 EDA 2022

Appeal from the Order Entered March 30, 2022

In the Court of Common Pleas of Northampton County

Civil Division at No(s): C-48-CV-2018-07261

BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY KING, J.: FILED APRIL 19, 2023

Appellant, David Olson, appeals from the order entered in the 

Northampton County Court of Common Pleas, which granted summary 

judgment in favor of Appellee, Lehigh University, in this Pennsylvania 

Whistleblower Law action.1 We affirm.

The relevant facts and procedural history of this case are as follows. On 

December 27, 2018, Appellant filed a complaint alleging wrongful termination 

by Appellee in violation of the Pennsylvania Whistleblower Law. Appellant 

alleged that Appellee hired him on August 16, 2017, as the Director of 

Employer Relations. Appellant’s offer of employment contained a six-month 

provisional period to demonstrate acceptable performance. In December 

____________________________________________

1 Act of December 12, 1986, P.L. 1559, §§ 1–8, codified at 43 P.S. §§ 1421–

1428.
J-S33019-22

- 2 -

2017, Appellant began compiling data on a tiering program for employers and 

discovered that while his data reflected 8,000 jobs had been posted in the fall

of 2017, Appellee had represented that it posted more than 21,000 jobs in 

that time, counting the same job postings multiple times. Specifically, 

Appellant alleged that Appellee was counting re-postings of the same jobs as 

“new” postings and counting different departments within the same employer 

as different employers to inflate Appellee’s on-campus interview figures. 

Appellant reported these discrepancies to his supervisor, Lori Kennedy, in 

December 2017. Appellant alleged that Ms. Kennedy rejected the data 

because it was in the wrong template. Appellant further claimed that Ms. 

Kennedy’s attitude toward him changed after he reported the discrepancies. 

On February 13, 2018, prior to the end of the provisional employment 

period, Appellee terminated Appellant’s employment, citing Appellant’s 

alleged failure to make behavioral changes, concerns over interactions with 

the team, and a failure to adhere to office protocol, as its reasons for 

Appellant’s termination. 

Appellant further alleged that the reasons Appellee stated as grounds 

for Appellant’s termination were pretextual. Appellant maintained that 

Appellee terminated his employment because he reported a wrongdoing. 

Specifically, Appellant averred that Appellee’s misreporting in the figures 

relating to job postings and on-campus interviews violated the Pennsylvania 

Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). Appellant 
J-S33019-22

- 3 -

alleged that Ms. Kennedy’s actions in failing to rectify the reported figures, 

and in firing Appellant for having reported the error constitute a violation of 

the Pennsylvania Whistleblower Law. 

On January 11, 2021, Appellee filed a motion for summary judgment. 

Specifically, Appellee claimed that Appellant did not make a good faith report 

of wrongdoing or waste, and that Appellant failed to establish a causal 

connection between his report of wrongdoing and his termination. The court 

heard argument on the motion for summary judgment on March 15, 2022. 

On March 30, 2022, the court granted Appellee’s motion for summary 

judgment and dismissed Appellant’s complaint with prejudice. Appellant filed 

a timely notice of appeal on April 20, 2022. On April 22, 2022, the court 

ordered Appellant to file a concise statement of errors complained of on appeal

per Pa.R.A.P. 1925(b). Appellant complied on May 11, 2022. 

Appellant raises the following questions on appeal:

1. The [trial] court applied the wrong causation analysis and 

standard to Appellant’s prima facie case.

A. Did the [trial] court fail to apply the correct 

standard of proof and burden of proof for a case 

centered on the Pennsylvania Whistleblower law?

B. Did the [trial] court fail to correctly apply the proper 

causation framework to Appellant’s prima facie case 

analysis? 

C. Did the [trial] court fail to properly apply the 

McDonnell-Douglas Corp. v Green, 411 U.S. 792[, 

93 S.Ct. 1817, 36 L.Ed.2d 668] (1973) causation 

standard to Appellant’s prima facie case regarding the 
J-S33019-22

- 4 -

causation element? 

D. Did the [trial] court fail to consider Appellant[’]s 

circumstantial evidence of pretext as a whole and in 

context related to the prima facie causation analysis 

and burden of Appellant related to same?

2. The [trial] court improperly applied the summary 

judgment standard in view of the record in this case. 

A. Did the [trial] court err when it weighed the 

evidence and/or made credibility determinations, 

resolving disputes in favor of [Appellee] and/or not 

weighing the evidence and all inferences therefrom in

the manner most favorable to Appellant, at the 

summary judgment phase? 

3. ...Appellant sufficiently established the other noncausation elements of his case for purposes of overcoming 

summary judgment.

A. Did Appellant[] establish all the other (noncausation) elements of his Whistleblower case, 

sufficiently to overcome a summary judgment 

motion? 

B. With regard to the Whistleblower Law, does the 

Pennsylvania Unfair Trade Practice and Consumer 

Protection law constitute a Pennsylvania statute and 

state the policy of Pennsylvania?

(Appellant’s Brief at 7-10) (unnecessary capitalization omitted). 

Our Supreme Court has clarified our role on appellate review in this case

as follows:

On appellate review, an appellate court may reverse a grant 

of summary judgment if there has been an error of law or 

an abuse of discretion. But the issue as to whether there 

are no genuine issues as to any material fact presents a 

question of law, and therefore, on that question our 

standard of review is de novo. This means we need not 

defer to the determinations made by the lower tribunals. To 
J-S33019-22

- 5 -

the extent that this Court must resolve a question of law, 

we shall review the grant of summary judgment in the 

context of the entire record.

Valley National Bank v. Marchiano, 221 A.3d 1220, 1222 (Pa.Super. 2019) 

(quoting Summers v. Certainteed Corp., 606 Pa. 294, 307, 997 A.2d 1152, 

1159 (2010)). Our scope of review is plenary. Pappas v. Asbel, 564 Pa. 

407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct. 

2618, 153 L.Ed.2d 802 (2002). 

In reviewing a trial court’s grant of summary judgment,

[W]e apply the same standard as the trial court, reviewing 

all the evidence of record to determine whether there exists 

a genuine issue of material fact. We view the record in the 

light most favorable to the non-moving party, and all doubts 

as to the existence of a genuine issue of material fact must 

be resolved against the moving party. Only where there is 

no genuine issue as to any material fact and it is clear that 

the moving party is entitled to a judgment as a matter of 

law will summary judgment be entered. All doubts as to the 

existence of a genuine issue of a material fact must be 

resolved against the moving party.

Motions for summary judgment necessarily and directly 

implicate the plaintiff’s proof of the elements of [a] cause of 

action. Summary judgment is proper if, after the 

completion of discovery relevant to the motion, including 

the production of expert reports, an adverse party who will 

bear the burden of proof at trial has failed to produce 

evidence of facts essential to the cause of action or defense 

which in a jury trial would require the issues to be submitted 

to a jury. In other words, whenever there is no genuine 

issue of any material fact as to a necessary element of the 

cause of action or defense, which could be established by 

additional discovery or expert report and the moving party 

is entitled to judgment as a matter of law, summary 

judgment is appropriate. Thus, a record that supports 

summary judgment either (1) shows the material facts are 

undisputed or (2) contains insufficient evidence of facts to 
J-S33019-22

- 6 -

make out a prima facie cause of action or defense.

Upon appellate review, we are not bound by the trial court’s 

conclusions of law, but may reach our own conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006) 

(internal citations and quotation marks omitted).

In his first issue, Appellant argues the trial court erred in its analysis 

regarding whether Appellant presented a prima facie case of a violation of the 

Whistleblower Law. Appellant asserts the court should have applied the 

pretext standard set forth in McDonnell-Douglas for determining causation. 

Appellant insists that under this standard, his burden was only to show 

evidence that the protected reporting was the likely reason for his termination. 

Appellant claims the trial court ignored the broad circumstantial evidence of 

pretext, and instead focused on its interpretation of the statements from his 

supervisor. Appellant concludes summary judgment was inappropriate, and 

this Court must grant relief. We disagree.

“The Whistleblower Law provides protection for employees of a public 

employer who report a violation or suspected violation of state law.” Greco 

v. Myers Coach Lines, Inc., 199 A.3d 426, 430-31 (Pa.Super. 2018), appeal 

denied, 652 Pa. 309, 208 A.3d 462 (2019) (quoting Bailets v. Pennsylvania 

Tpk. Comm’n, 633 Pa. 1, 13, 123 A.3d 300, 307 (2015)). Specifically, the 

law provides: 

No employer may discharge, threaten or otherwise 

discriminate or retaliate against an employee regarding the 

employee’s...privileges of employment because the 
J-S33019-22

- 7 -

employee...makes a good faith report or is about to report, 

verbally or in writing, to the employer or appropriate 

authority an instance of wrongdoing or waste by a public 

body or an instance of waste by any other employer as 

defined in this act.

43 P.S. § 1423(a).

To prove a violation of the Whistleblower Law, an employee “must show 

by a preponderance of the evidence that, prior to the alleged reprisal, the 

employee...had reported or was about to report in good faith, verbally or in 

writing, an instance of wrongdoing or waste to the employer or an appropriate 

authority.” 43 P.S. § 1424(b). “[A]n employer may defend a whistleblower 

claim if it ‘proves by a preponderance of the evidence’ that it fired the 

employee for ‘separate and legitimate reasons, which are not merely 

pretextual.’” Greco, supra at 431 (quoting 43 P.S. § 1424(c)).

Instantly, the trial court explained that the McDonnell-Douglas 

burden-shifting test is not applicable in the context of a Whistleblower Law 

complaint. (See Trial Court Opinion, 5/17/22, at 2). The court noted that the 

McDonnell-Douglas test applies in cases of employment discrimination 

based on race, sex, or disability, and no such claim was made in this case. 

The court stated that in ruling upon the motion for summary judgment it 

applied the test set forth in Golaschevsky v. Commonwealth, Department 

of Environmental Protection, 554 Pa. 157, 720 A.2d 757 (1998), and 

Evans v. Thomas Jefferson University, 81 A.3d 1062 (Pa.Cmwlth. 2013),

which the court explained are applicable in the context of Whistleblower Law 
J-S33019-22

- 8 -

claims.

2

In Golaschevsky, supra, our Supreme Court considered whether an 

employee demonstrated a causal connection sufficient to establish a prima 

facie case of retaliatory discharge under the Whistleblower Law. There, the 

Court explained:

[T]o make out a prima facie case of retaliatory termination 

pursuant to the Whistleblower Law, a plaintiff must “show 

by concrete facts or surrounding circumstances that the 

report [of wrongdoing or waste] led to [the plaintiff’s] 

dismissal, such as that there was specific direction or 

information received not to file the report or [that] there 

would be adverse consequences because the report was 

filed.” [Gray v. Hafer, 651 A.2d 221, 225 (Pa.Cmwlth.

1994), affirmed per curiam, 542 Pa. 607, 669 A.2d 335 

(1995)].

Golaschevsky, supra at 163, 720 A.2d at 759. Applying that standard, the 

Court found that the appellant did not present sufficient evidence to establish 

a causal connection because he did not “allege that his supervisors threatened 

to fire him or to impose any other adverse consequences because of his report, 

nor does he establish any other ‘concrete facts’ to connect the report with the 

dismissal.” Id. The Court rejected the appellant’s reliance “solely on vague 

and inconclusive circumstantial evidence” holding that without concrete 

evidence showing a causal connection between his report and his subsequent 

termination, he cannot establish a prima facie case of retaliatory discharge 

____________________________________________

2 We may look to the Commonwealth Court’s decisions for guidance, albeit not 

as binding precedent. Greco, supra at 432 (citing Ford v. Ford, 878 A.2d 

894, 900 (Pa.Super. 2005)).
J-S33019-22

- 9 -

pursuant to the Whistleblower Law. Id. at 162-63, 720 A.2d at 759. See 

also Evans, supra (applying Golaschevsky and requiring that causal 

connection must be demonstrated by concrete facts that report of wrongdoing 

led to dismissal). 

More recently, in Bailets, supra, our Supreme Court explained that to 

obtain relief on a Whistleblower Law claim, an individual must establish by a 

preponderance of the evidence that he made a report of wrongdoing to the 

employer, and that he was fired due to these reports. Bailets, supra at 14, 

123 A.3d at 308. Relying on Golaschevsky, supra and Gray, supra, our 

Supreme Court reiterated that the individual presenting such claim:

has to show by concrete facts or surrounding circumstances 

that the report [of wrongdoing or waste] led to his dismissal, 

such as that there was specific direction or information he 

received not to file the report or there would be adverse 

consequences because the report was filed. 

Bailets, supra at 14, 123 A.3d at 308 (internal citations and quotation marks 

omitted).

Here, we see no error in the court’s application of the “concrete facts” 

standard in evaluating the instant Whistleblower Law violation claim. See id.; 

Golaschevsky, supra; Evans, supra. Although Appellant disagrees with the 

trial court’s application of the “concrete facts” standard, he has failed to cite 

any cases that apply the McDonnell-Douglas standard in evaluating 
J-S33019-22

- 10 -

violations of the Whistleblower Law.3 Accordingly, Appellant’s first issue 

merits no relief. 

For purposes of disposition, we combine Appellant’s remaining issues. 

Appellant argues that he sufficiently established the causation element of his 

claim. Appellant insists he presented adequate evidence that Appellee’s 

stated reasons for his termination were pretextual, and its actual motivation 

for terminating Appellant’s employment was in retaliation for Appellant 

reporting Appellee’s wrongdoing. Appellant contends that Appellee’s

misreported data constituted a violation of the UTPCPL, which prohibits unfair 

methods of competition and unfair or deceptive acts or practices. Appellant 

concludes the court erred by granting summary judgment in favor of Appellee, 

and this Court must grant relief. We disagree.

“To prove a cause of action for wrongful discharge under the 

Whistleblower Law, the plaintiff must show both a protected report of 

wrongdoing or waste and a causal connection between that report and the 

discharge.” Evans, supra at 1064. A “wrongdoing” is defined as:

A violation which is not of a merely technical or minimal 

nature of a Federal or State statute or regulation, of a 

political subdivision ordinance or regulation or of a code of 

conduct or ethics designed to protect the interest of the 

public or the employer.

____________________________________________

3 Appellant alleges that Golaschevsky, supra, and Gray, supra, 

incorporated the McDonnell-Douglas standard; however, in neither case 

does our Supreme Court discuss McDonnell-Douglas.
J-S33019-22

- 11 -

43 P.S. § 1422.

To prove a violation of the Whistleblower Law, an individual “must 

demonstrate [he] made a report of some action by [his] employer or its agent, 

which, if proven, would constitute a violation of a law or regulation. Moreover, 

the report must be of an actual violation, not a potential or contemplated 

violation.” Greco, supra at 434.

Furthermore,

The causal connection that the Whistleblower Law requires 

must be demonstrated by concrete facts or surrounding 

circumstances that the report of wrongdoing or waste led to 

the plaintiff’s dismissal, such as that there was specific 

direction or information received not to file the report or that 

there would be adverse consequences because the report 

was filed. ... The burden shifts to the defendant to show a 

separate and legitimate reason for its actions only where 

plaintiff has satisfied the threshold showing of a causal 

connection. [V]ague and inconclusive circumstantial 

evidence is insufficient to satisfy that threshold burden to 

show a causal connection and shift the burden to the 

defendant to justify its actions. 

Evans, supra at 1070 (internal citations and quotation marks omitted).

In Golaschevsky, supra, the appellant claimed that he reported

copyright violations to his supervisor, which “touched off a series of retaliatory 

actions, including negative performance evaluations, lack of cooperation from 

fellow employees and supervisors, withholding of information regarding 

computer software, and, ultimately, termination of [the a]ppellant’s 

employment.” Golaschevsky, supra at 163, 720 A.2d at 759-60. 

Nevertheless, the Court noted that this evidence was simply the appellant’s 
J-S33019-22

- 12 -

perception of how others treated him after the report. The Court explained 

the appellant had failed to allege that “his supervisors threatened to fire him 

or to impose any other adverse consequences because of his report, nor does 

he establish any other ‘concrete facts’ to connect the report with the 

dismissal.” Id. at 163, 720 A.2d at 759. In the absence of “concrete evidence 

tending to show a causal connection between his report of alleged copyright 

violations and his subsequent termination,” the Court decided the appellant

could not establish a prima facie case of retaliatory discharge pursuant to the 

Whistleblower Law and affirmed summary judgment in favor of the appellee. 

Id. at 164, 720 A.2d at 760.

In Evans, supra, the Commonwealth Court considered whether the 

appellant had shown a causal connection between her report of her supervisor 

violating a policy on administrating methadone to patients and the appellant’s 

discharge less than a year later, for alleged “rude, intimidating, discourteous 

and unprofessional behavior.” Evans, supra at 1067. There, the appellant 

argued that she could show a causal connection between the report and her 

discharge despite a lack of direct evidence based on the fact that the warnings

for her conduct toward patients and coworkers occurred after the report, 

where she received a rating of “outstanding” in her review prior to the report 

but a lower rating of “effective” in her review a few months after the report, 

and based on the appellant’s complaints that her supervisor treated her 

differently and in a hostile manner after the report. Id. at 1070. The Evans
J-S33019-22

- 13 -

Court noted that “[i]n a Whistleblower Law action, the mere fact that the 

discharge occurred a few months after a report of wrongdoing and that the 

first formal negative actions by the employer occurred after the report are not 

enough to show a causal connection.” Id. at 1070–71 (citing Golaschevsky, 

supra at 163-64, 720 A.2d at 759-60). Ultimately, the Court decided that 

the appellant had not established a causal connection between the report and 

her discharge, and therefore the burden did not shift to the appellee to justify 

its actions. Thus, the Commonwealth Court affirmed the summary judgment 

entered in favor of the appellee.

Here, the trial court found that Appellant established the first element 

of his prima facie case, proving that he made a good faith report of wrongdoing 

or waste. The court concluded that Appellant’s report that Appellee “was 

improperly calculating and thereby inflating to a marked degree the number 

of job postings and OCI opportunities ostensibly made available to Lehigh 

students through its Office of Career & Professional Development...amounted 

to ‘wrongdoing’ within the meaning of the Whistleblower Law insofar as it 

violates the [UTPCPL].” (Trial Court Opinion, 3/30/22, at 5) (record citation 

omitted). 

The court then considered whether Appellant brought forth sufficient 

evidence to support the second element—concrete evidence of a causal

connection between the report of wrongdoing and the adverse employment 

action. The court found that Appellant did not meet his burden, and explained 
J-S33019-22

- 14 -

its determination as follows:

Having considered the record offered by [Appellant], we find 

that [Appellant] has failed to bring forth sufficient evidence 

to support this second element. Rather, the record on this 

issue consists merely of vague circumstantial evidence, e.g.

[Appellant’s] subjective contention that his supervisor, Ms. 

Kennedy, “did not like the fact that the data was revealing 

inaccurate reporting, and the relationship changed after 

that,” and that “all of a sudden things got cold with [his] 

supervisor[.]” (Deposition of [Appellant], 5/25/21, 106, 

229). As uncomfortable as a perceived shift in the 

relationship between [Appellant] and Ms. Kennedy may 

have been for [Appellant], same does not amount to 

evidence of a causal connection between [Appellant’s] 

report and his eventual dismissal. Furthermore, Ms. 

Kennedy’s alleged statement that [Appellee] “cannot use 

your numbers[...]that are half what they were last year” in 

no way amounts to a specific direction to [Appellant] not to 

report his data or that there would be adverse consequences 

for [Appellant] because he made such a report. Id. at 73. 

In fact, same does not even amount to an acknowledgement 

that [Appellant’s] understanding of the data was accurate 

or that the University had been utilizing inaccurate data. As 

[Appellant] testified at his deposition, “I recall Lori 

[Kennedy] wanting me to talk to Marcia and Rich[,] to try to 

understand how they reported OCI the prior year. Because 

the numbers, as I had stated earlier, were about half what 

they were published the prior year. So Lori asked me to talk 

to Marcia and Rich. [...] So they would do it in some other 

way. I don’t know exactly how they did it, except that they 

did include different divisions.” Id. at 123, 125. None of 

the testimony offered by [Appellant] nor any of the other 

testimony or exhibits offered in opposition to the motion 

amounted to prima facie evidence of a causal connection 

between his reports to his supervisor and his eventual 

termination. The fact that [Appellant’s] termination came 

roughly two months after he made a report to his supervisor 

does not mean that there is a causal connection between 

the two. As the adage provides, correlation does not equal 

causation.

(Trial Court Opinion, 3/30/22, at 6-7). The trial court found that Appellant
J-S33019-22

- 15 -

failed to satisfy the threshold showing of a causal connection, and therefore 

did not meet his initial burden of establishing a prima facie case. 

Our review of the record supports the court’s analysis. Similar to the 

facts in Golaschevsky, supra, Appellant’s allegations amount simply to a 

change in his perception of how others treated him after he made the report. 

He offers no concrete evidence, either direct or circumstantial, that would 

show that his report led to his dismissal. As such, we agree with the trial 

court that because Appellant did not satisfy that threshold burden to show a 

causal connection, the burden did not shift to Appellee to justify its actions. 

See Golaschevsky, supra. Therefore, the trial court applied the correct 

standard in evaluating the motion for summary judgment concerning 

Appellant’s Whistleblower Law claim, and correctly concluded that Appellant 

could not prove the essential elements of the Whistleblower Law claim. 

Accordingly, we affirm the court’s order granting summary judgment.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/19/2023