Whistleblower Law; Causation

Javitz v. Luzerne County, 2021 WL 3028160 (Pa. Cmwlth. 2021) (unreported), allocatur granted Nov. 16, 2021, appeal docket 85 MAP 2021

This case arises from a Whistleblower Law claim filed by Ms. Donna Davis Javitz against her former employer, Luzerne County. Commonwealth Court summarized the relevant background as follows:

County hired Appellant as Director of Human Resources on August 4, 2014, and she worked in this position until October 26, 2015. Parsnik served as the Director of Administrative Services for the County and was Appellant’s direct supervisor. Lawton was the County Manager at the time. Appellant’s job duties as Director of Human Resources included negotiating contracts, handling employee complaints, responding to grievances, conducting investigatory and Loudermill hearings with regard to employee disciplinary matters, (Amended Complaint ¶ 48), attending meetings, and dealing with union matters. Appellant’s office at the time she was hired was in the County Courthouse in the managers’ suite of offices, which was in close proximity to Lawton’s office. (Id. ¶¶ 66, 67.)

As a part of her job duties, Appellant participated in two investigatory meetings involving the American Federation of State, County, and Municipal Employees (AFSCME). During these meetings, County employee and AFSCME president Paula Schnelly (Schnelly) was present as an AFSCME union representative for the union members employed by the County being investigated. Schnelly worked for the County in the District Attorney’s Office as an administrative assistant, and her job duties were limited to the handling of appellate matters. In March 2015, AFSCME filed an unfair labor practice charge against the County in regard to the investigation Appellant conducted that included one of the investigatory meetings that Schnelly attended. The unfair labor practice charge included a document that appeared to Appellant to be a verbatim transcript of the above meeting. (See Reproduced Record (R.R.) at 164a-70a.) Appellant, noting that Schnelly had not been taking consistent notes at the meetings but did have her phone on the table in front of her with her hands folded in front of her, believed that this transcript was the result of Schnelly’s illegal recording of the meeting without the consent of those present. (Id. at 131a-32a.) Appellees dispute that Schnelly recorded the meeting and that Appellant has produced sufficient evidence to support that Schnelly did so. Further, while Appellant asserts that Schnelly participated in the meeting in her role as a county employee, Appellees maintain that she participated in the meeting solely as an AFSCME representative.

Appellant brought her concern regarding the potential recording to Parsnik, who agreed that the transcript may have resulted from an illegal recording. Appellant and Parsnik then met with the County’s District Attorney, who stated that she would be referring the matter to the Pennsylvania Office of the Attorney General due to a conflict of interest. Appellant alleges that Lawton then intervened and instructed the District Attorney to not investigate the issue, (Amended Complaint ¶ 76), though Appellees and the District Attorney deny that Lawton did so, (Affidavit of Luzerne County District Attorney ¶ 5; Supplemental Reproduced Record (S.R.R.) at 553b).

Over the following months, Appellant repeatedly asked Parsnik and the County Solicitor about the status of the investigation and also inquired with the District Attorney, but she received no response. (Amended Complaint ¶¶ 83-84.) Appellant claims that after reporting the incident to the District Attorney and following up regarding the investigation’s status, she began to suffer retaliatory actions. For instance, Appellant avers that Parsnik informed her that her office was going to be moved from the County Courthouse to another building. (Id. ¶ 66.) Appellant further submits that Parsnik denied her access to the Human Resources budget, blocked her ability to use budgeted monies to hire or compensate staff, restricted her access to the filing cabinet containing personnel information and required her to submit permission requests for such access, took over all contract negotiations and union meetings and excluded her from such without consulting Appellant, began to provide Appellant’s subordinate employees with work assignments that were previously her responsibility, gave Appellant tasks that were not previously a part of her job responsibility, and generally acted in a rude manner towards Appellant. (Id. ¶¶ 68-69, 72-74, 77-80.) Finally, Appellant alleges she was eliminated from budgetary and union meetings, including subsequent AFSCME meetings with Schnelly. Appellees deny that many of these actions took place, such as Appellant being restricted from contract negotiations and union meetings, and that, to the extent that any of these actions did occur, they were not retaliatory in nature.

On October 15, 2015, AFSCME and the County settled the unfair labor practices charge. On October 26, 2015, Parsnik and the County Solicitor held a meeting with Appellant at which they informed Appellant that she would no longer be employed by the County. Appellant refused to resign and requested a Loudermill hearing, which was not provided. Appellant avers that no reason was given for her termination and that her work performance was not at issue until she brought her allegations. (Appellant’s Affidavit ¶ 34, R.R. at 251a.) Appellees maintain that Appellant’s termination was due to her: conduct towards unions; refusal to follow through with hiring a Human Resources Business Partner; failure to initiate policies, procedures, and initiatives as directed; and handling of issues with the employment application for a candidate for an assistant public defender position. (Appellees’ Statement of Undisputed Material Facts in Support of Motion for Summary Judgment ¶ 70, S.R.R. at 466b.)

Slip op. at 2-5. Javitz sued the County defendants in federal court alleging constitutional violations and a state law whistleblower claim. After the federal claims were adjudicated the whistleblower law claim was transferred to state court. The County filed a motion for summary judgment alleging that Javitz’s Whistleblower Law claim lacks merit because there was no wrongdoing by any County employee since Schnelly was acting in her role as AFSCME president and Javitz was not fired for reporting the alleged wrongdoing. In support the county offered the following evidence:

First, Appellees provided the deposition of Shelby Watchille, a Luzerne County Human Resources employee, who indicated that her office also moved away from the County Courthouse around the same time as Appellant along with the entirety of the County’s Human Resources Department. (S.R.R. at 307b.) Next, Appellees point to the deposition of Necia Gazdziak, another Luzerne County Human Resources employee, who indicated that Appellant made her feel uncomfortable by “trying to make [her] say something that was[ no]t true” and that Appellant “continually asked [her] for the whole time that [Appellant was] there … who [she] knew to get hired” with regard to the vacant Human Resources Business Partner position. (Id. at 310b.) Gazdziak further testified that she also participated in the move from the County Courthouse around the same time as Appellant’s office was moved, affirming that the entire Human Resources Department was moved, and stating that Appellant had been aware of the potential for a move from the County Courthouse when Appellant interviewed Gazdziak in October 2014. (Id.) Next, with regard to Appellant’s claim that she was restricted from involvement in budget and union meetings and contract negotiations, Appellees provided emails reflecting Appellant’s involvement with such meetings after her report of alleged wrongdoing in March 2015. (See id. at 313b-31b, 353b-63b, 362b-428b.) To demonstrate one of the reasons for Appellant’s termination, that Appellant had been directed to hire a Human Resources Business Partner, a position that had not been filled at the time of Appellant’s termination, Appellees provided the email chain documenting Parsnik’s instructions for such hire to Appellant. (See id. at 339b-52b.) Finally, Appellees point to the transcripts of the meetings at issue and the unfair labor practice complaint to show Appellant’s unfavorable handling of union matters as another reason for her termination. (Id. at 244b-88b.)

Slip op. at 7-8. In opposition to the motion, Javitz provided the following evidence:

…the deposition of the District Attorney, who stated that she referred the issue to the Attorney General due to the conflict of interest stemming from Schnelly’s employment with her office. (R.R. at 240a-41a.) She also submitted her own affidavit, in which she stated that she “had no prior discipline before her termination,” that “[s]he was not warned,[ ]given a warning,[ ]suspended[, or] given a last chance agreement,” and that she was “just told to pack up and get out shortly after the unfair labor practice complaint … was settled.” (Appellant’s Affidavit ¶ 34, R.R. at 251a.) Finally, Appellant pointed to Schnelly’s deposition, in which a note-taking exercise was performed in order to gauge “whether she had the kind of note-taking ability” that would explain the verbatim transcript submitted in the unfair labor practice complaint. (R.R. at 272a, 275a-88a.)

Slip op. at 8. The common pleas court granted the County’s motion reasoning that Javitz failed to make a prima facie case where, according to common pleas: it was “undisputed from the record that [ ] Schnelly attended the meetings as the AFSCME union representative, not on behalf of the County”; that because Schnelly’s administrative assistant duties only included working on appeals, “Schnelly had no reason to attend union meetings on behalf of the County”; and, that Javitz “only made bald assertions that [ ] Schnelly transcribed the meetings … and failed to provide any evidence that [ ] Schnelly recorded the meetings.” Slip op. at ___. The court further concluded that “the record clearly shows that [Appellant] was not terminated for any reporting of wrongdoing or waste, but for issues dealing with work performance, specifically her handling of matters involving labor unions.” Slip op. at 9-10. Thus, the court concluded as stated in its Pa. R.A.P. 1925 opinion that Javitz did “not present sufficient evidence to establish a causal connection between her March 2015 report and her termination[ ] seven months later.” Slip op. at 11. Javitz appealed to Commonwealth Court.

Commonwealth Court affirmed common pleas and held that Javitz failed to provide sufficient evidence to show a causal connection between her report and her termination. Finding that Golashevsky v. Dep’t of Environmental Protection, 720 A.2d 757, 759 (Pa. 1998) supported its conclusion, the court explained that:

As stated by our Supreme Court, the causal connection required for a Whistleblower Law claim must be shown “by concrete facts or surrounding circumstances that the report of wrongdoing or waste led to plaintiff’s dismissal, such 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.” Golaschevsky, 720 A.2d at 759 (quoting Gray, 651 A.2d at 225) (alterations omitted) (emphasis added). “ ‘Vague 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, 81 A.3d at 1070 (quoting Golaschevsky, 720 A.2d at 759) (internal quotations omitted). Moreover, “the mere fact that [a] 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 (emphasis in original).

For instance, in Golaschevsky, the employee claimed “that his report of alleged wrongdoing 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 that was related to his work duties, and, ultimately, termination. 720 A.2d at 759-60. The Supreme Court explained that the employee’s perception of his treatment was not sufficient to show the necessary causal connection and, therefore, that the employee failed to establish a prima facie case. Subsequently, this Court, in Evans, 81 A.3d at 1070-71, found that the employee there, who had submitted evidence similar to that submitted in Golaschevsky regarding his treatment following his report of alleged wrongdoing, had not submitted evidence sufficient to establish a prima facie case of causation under Golaschevsky.

Slip op. at 15-16 (emphasis in original). Thus, the court concluded that:

In reviewing the record, we are constrained to agree with Appellees that the record is devoid of specific and concrete facts showing that Appellant’s termination in October 2015 resulted from the March 2015 report of Schnelly’s alleged recording. Appellant has not provided “concrete facts” or shown any “surrounding circumstances” that could lead to the conclusion that there was “a specific direction” that she would suffer retaliation or be terminated because of the report as required by precedent. Golaschevsky, 720 A.2d at 761. Nor is there any evidence or allegation that she was directed to not make the report; in fact, Appellant provided evidence that Parsnik, her supervisor joined her when she made her report to the District Attorney. Instead, the evidence Appellant points to – the positive performance evaluations she had received prior to the report, the moving of her office from the County Courthouse, her alleged restriction in involvement in union meetings and contract negotiations, the alleged changes in delegation of responsibilities, what Appellant perceived as rude behavior by her supervisors, and her ultimate termination – are nearly identical to the claimed retaliatory actions alleged by the employees in Golaschevsky and Evans, which were determined to be insufficient to establish a prima facie case on causation. Thus, under Supreme Court and our Court’s precedent, these perceived retaliatory acts amount only to Appellant’s subjective perception that these actions resulted from her report of alleged wrongdoing and do not rise to the sort of concrete facts required to show causation under the Whistleblower Law.

Slip op. at 16 (emphasis in original).

Judge McCullough dissented, disagreeing with the majority that Javitz failed to adduce sufficient evidence that a causal connection existed between her report of wrongdoing and discharge from employment as the Director of Human Resources. Judge McCullough characterized the majority’s opinion as determining that Javitz “failed to establish causation because she did not prove that the County directly threatened her with adverse employment action for filing a report or specifically directed her not to file the report,” which, in the dissent’s view, is an “onerous burden” that “has the effect of defeating the underlying purpose of the Whistleblower Law to protect employees who report governmental wrongdoing.” Dissent slip op. at PAM-6 – PAM-7. Instead, the dissent would apply a totality of circumstances test as to causation, which Judge McCullough reasoned is supported by the Supreme Court’s decisions in O’Rourke v. Commonwealth, 778 A.2d 1194 (Pa. 2001) and Golashevsky, explaining that:

Indeed, in Golaschevsky, it appears that our Supreme Court endorsed such a causation standard when it stated that a plaintiff need only “show by concrete facts or surrounding circumstances that the report led to [her] dismissal.” 720 A.2d at 761. Years later, in O’Rourke, our Supreme Court discussed at length the burden-shifting framework in whistleblower cases between the plaintiff and the employer, and stated that, in order to make out a prima facie case on the causation element, the plaintiff “must come forward with some evidence of a connection between the report of wrongdoing and the alleged retaliatory acts.” Id. at 1200. In these cases, however, our Supreme Court never said, or much less suggested, that in order to prove causation, a plaintiff must absolutely demonstrate either that the employer directly threatened him or her with adverse employment action for filing a report of wrongdoing or specifically directed him or her not to file such a report. To the contrary, our Supreme Court has indicated that these are two illustrative and non-exhaustive ways through which causation could be shown. As a result, and consistent with the case law in the retaliatory and discrimination contexts, I would apply a totality of the circumstances test as part of the causation standard for claims arising under the Whistleblower Law.

Dissent slip op. at PAM-8 – PAM-9 (footnote omitted). Applying the totality of circumstances test, the dissent would hold that Javitz meet her burden as to causation, concluding that:

In short, Appellant made a report of wrongdoing; the County directed the DA not to investigate the matter; Appellant inquired into the investigation on a variety of occasions and never received a response; in the meantime, Appellant experienced antagonistic behavior and retaliatory actions from higher-ranking employees of the County regarding her job duties and role as Director; and, finally, after she refused to resign, Appellant was discharged without a reason.

Dissent slip op. at PAM-9.

The Supreme Court granted allocatur to consider the following issues:

(1) Whether this Court should allow this appeal to proceed where the Commonwealth Court in this case has rejected the well-established holding of the Supreme Court in O’Rourke v. Commonwealth, 778 A.2d 1194, 1200 (Pa. 2001) and Golashevsky v. Department of Environmental Protection, 720 A.2d 757, 759 (Pa. 1998) and instead determined that in order to establish a prima facie case under the Whistleblower Law a litigant must establish causation with direct evidence proving (1) the County directly threatened [Petitioner] with adverse employment action for filing a report or (2) specifically directed [Petitioner] not to file the report, in effect nullifying the Whistleblower Law?

(2) Did the Commonwealth Court err in entering an order dismissing this appeal by limiting its finding of facts and misapplying the law established by the Supreme Court?

 

For more information, contact Kevin McKeon or Dennis Whitaker.