Third Circuit Tosses Senior Deputy AG's Retaliation Claim

, The Legal Intelligencer


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Kimmett subsequently filed a federal complaint, alleging that several high-level employees failed to promote him in retaliation for reporting the alleged problems. He argued that he should have been promoted to the position of financial enforcement section chief, but instead the department hired Michael Roman for the position. Kimmett further alleged that the defendants failed to investigate his claims for political reasons and also unlawfully tried to cover up the illegal activities.

After the lawsuit was initiated, Kimmett underwent a performance evaluation where he was criticized for unwarranted disapprovals, failure to complete the software project and having a negative attitude. He was put on a remedial plan requiring him to work with Roman on all proposed compromises.

According to Shwartz, Kimmett argued that the evaluation was done to discredit him because of the lawsuit, that it was "surreal" that he'd be reviewed by the people he was suing and that the evaluation and the review of the compromise process were being done in a backdoor attempt to fabricate charges against him.

Kimmett was eventually fired. He subsequently amended his complaint to include allegations that the retaliation violated his First Amendment rights.

After the defendants filed for summary judgment, the Middle District held that, while portions of Kimmett's speech were made as a citizen and addressed matters of public concern, the action was barred due to the interest the Attorney General's Office had in maintaining workplace harmony.

Shwartz agreed with the district court's holding and determined that under the standards outlined in the Third Circuit's 2009 decision in Gorum v. Sessoms and the U.S. Supreme Court's 2006 case Garcetti v. Ceballos, only Kimmett's filing of the lawsuit was protected by the First Amendment and could be considered for recovery.

According to Shwartz, the additional communications Kimmett pointed to in his claim, which included communication with state employees and communications about the Department of Revenue, were not recoverable because they were work-related communications, which were not protected under the First Amendment.

The lawsuit, however, was clearly related to issues of public concern, Shwartz said, as it contained allegations of actual or potential wrongdoing on behalf of the Attorney General's Office.

However, Shwartz further noted that the suit, as it implicated Kimmett's entire chain of command, would have impaired discipline and harmony in the office. Using the standards outlined in the Third Circuit's 2004 opinion in Curinga v. City of Clairton and the Supreme Court's 1987 decision in Rankin v. McPherson, she determined the interest in the claims did not outweigh the disruption the lawsuit caused in the workplace.

"Kimmett's own statements demonstrate that this lawsuit 'impair[ed] discipline by superior,' [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,'" Shwartz said, quoting the Rankin decision.

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