Employment

Third Circuit Tosses Senior Deputy AG's Retaliation Claim

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A former senior deputy attorney general's case alleging retaliation for exposing alleged financial waste has been thrown out by the U.S. Court of Appeals for the Third Circuit.

On Jan. 28, a three-judge panel ruled the suit, filed by Thomas D. Kimmett against the Attorney General's Office and seven named officials, including Gov. Tom Corbett, was barred because the public interest of the whistleblowing was outweighed by the disturbance the suit would cause to the workplace. The decision in Kimmett v. Corbett affirms a ruling by the U.S. District Court for the Middle District of Pennsylvania granting the defendants summary judgment.

Writing for the majority, Judge Patty Shwartz used the balancing test outlined in the U.S. Supreme Court's 1968 decision in Pickering v. Board of Education as the determining factor.

"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 the defendants," Shwartz said, quoting the Third Circuit's 1989 decision in O'Donnell v. Yanchulis.

According to Shwartz, Kimmett was hired as a supervisor at the administrative collections unit within the Attorney General's Office. The unit collects debts owed to state entities, including the Pennsylvania Department of Revenue, and manages contracts with private collection agencies.

Shwartz said Kimmett was hired after the department had uncovered problems in the unit, including inconsistent language in the contacts with outside collection agencies, audit requirements of the collection agencies that were unenforced and inadequate software systems.

Shwartz said Kimmett was expected to manage administrative collections, review and approve settlements with debtors, known as compromises, address the "breakdown in the fund flow" and "modernize the operation." According to Kimmett, Shwartz said, his job was also to identify any problems or improprieties in the operation.

Kimmett claimed he found evidence that employees in the financial enforcement section and the Department of Revenue were allowing outside collection agencies to receive commissions on accounts they did not work on and to withhold interest in the amounts they collected. He said he further found that some employees destroyed some accounting documents, refused to collect on certain fees that were required, approved unjustified debt compromises and authorized an unearned payment of approximately $300,000 to a collection agency, among other things.

According to Shwartz, Kimmett claimed he then raised concerns about the problems within the unit and outside of his chain of command, and further reported his concerns to an assistant U.S. attorney, an FBI agent, an employee at the Pennsylvania Commission on Crime and Delinquency, and the executive director of the Team Pennsylvania Foundation. However, the defendants, Kimmett claimed, ignored the reports.

Officials heading the financial enforcement section and the civil law division, which oversees the administrative collections unit, however, said they were dissatisfied with Kimmett's performance, Shwartz said. The officials said he needlessly rejected compromises, treated the staff harshly and consistently failed to follow protocol when communicating with Department of Revenue employees. The officials, Shwartz said, claimed that as a result of his actions, Kimmett was taken off a software project he had spearheaded and was considered for a transfer out of the unit.

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.

Plaintiffs attorneys Neil A. Grover of Harrisburg and Charles T. Kimmett of Wiltshire & Grannis in Washington, D.C., did not return calls for comment. A spokesman from the state Office of Attorney General declined to comment.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the 15-page opinion in Kimmett v. Corbett, PICS No. 14-0121, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •

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