PITTSBURGH – Much like West Elizabeth Borough, Union Township argues it is not liable for the termination of a man who claims he was fired from a water and sewer authority when he refused to dump raw sewage into the Monongahela River.
Perry Payne first filed suit in the Allegheny County Court of Common Pleas on Aug. 11 versus West Elizabeth Sanitary Authority and West Elizabeth Borough, Union Township of Finleyville and the Borough of Jefferson Hills.
“Plaintiff began working for WESA in June 2013. In September 2019, WESA was in the process of trying to get a new processing treatment plant online. Around this time, the old plant was still online and it developed a processing issue. Plaintiff did everything he could to address and correct this processing issue, but it continued until about mid-January 2020,” Payne said.
“In the beginning of January 2020, plaintiff was told by Engineer Larry Lennon, Sr. to take two of the big tanks offline and leave the three smaller tanks online to address the processing issue at the old plant.”
Per the lawsuit, Payne said he immediately refused the order and told Lennon that if the two big tanks were taken offline, when it rained, the three smaller tanks would immediately overflow and sewage sludge would dump into the Monongahela River.
Lennon allegedly said, “It happens every day,” referring to sewage sludge being dumped into the Monongahela River. However, Payne refused to follow Lennon’s direction because in doing so, he would be purposely dumping sewage sludge into the Monongahela River, which the plaintiff said he knew was illegal.
Another WESA employee, Scott Pearson later approached the plaintiff and asked him to follow Lennon’s suggestion, but Payne once again explained that in doing so he’d be purposely dumping sewage sludge into the Monongahela River, which was illegal.
“Plaintiff told Mr. Lennon and Mr. Pearson that he was going to report WESA to the Allegheny County Health Department, because WESA was not only allowing sewage sludge to be dumped into the Monongahela River, but they were also asking him to dump sewage sludge into the Monongahela River, both of which were illegal under various state and federal statutes. Plaintiff contacted Ed Wadkins from the ACHD in January 2020 and reported WESA. On Feb. 24, 2020, plaintiff was fired,” the suit said.
“WESA has a Board that consists of approximately 8-10 members/seats, which are held by representatives from all of the defendants, the West Elizabeth Sanitary Authority, West Elizabeth Borough, Union Township and the Borough of Jefferson Hills (collectively referred to as the Board).”
Payne believed that since the Board oversees WESA’s activities, they were aware of the illegal dumping into the Monongahela River, were aware of his refusal to engage in that conduct, were aware of his internal complaints about the dumping and lastly, were aware of his reporting of the illegal dumping to the Allegheny County Health Department.
As the Board made the decision to terminate plaintiff’s employment, Payne therefore said all of the defendants were involved in the decision to terminate him.
On Aug. 31, West Elizabeth Borough filed preliminary objections to Payne’s lawsuit for failure to state a claim, because it was not his employer, and that West Elizabeth Borough replied it has no control over the actions of the WESA Board.
“In the case at bar, Mr. Payne improperly seeks to hold West Elizabeth Borough liable for the actions of WESA solely because West Elizabeth Borough appointed a representative(s) to the WESA Board. Payne does not aver that the governing body of the Borough has the power to control the representatives appointed to the WESA Board,” per the objections.
“Payne does not aver that the Borough, through its final decision-makers, was aware of his alleged protected conduct in the form of a report to the Allegheny County Health Department and his refusal to place two big tanks offline. Payne further fails to aver that the Borough, through its final decision-makers, directed the WESA Board to terminate Payne’s employment.”
UPDATE
Counsel for Union Township filed their own preliminary objections on Sept. 4, that were substantially-similar in nature as those brought by West Elizabeth Borough.
“Here, plaintiff seeks redress for his termination from the Township solely on the basis that the Township appointed one or more representative(s) to serve on the WESA Board. No allegations in the complaint suggest that the Township independently has any authority or ability to determine the identity of the representative(s), let alone control their decisions while acting on the Board,” the objections read, in part.
“The complaint further does not set forth facts to support that Union Township directed plaintiff’s termination, or otherwise had any authority to do so. Nor does the complaint aver that Union Township had the ability to stop or prevent his termination.”
Union Township added that Payne has also “failed to allege that Union Township specifically was made aware of any alleged protected activity.”
“Because Union Township was not plaintiff’s employer and did not otherwise have any role in determining, enforcing or altering his terms and conditions of employment, plaintiff’s complaint as a whole fails as a matter of law. There are simply no factual averments related to the moving defendant which support plaintiff’s theories of recovery against Union Township,” according to the objections.
For counts of violating the Pennsylvania Whistleblower Act and wrongful termination under the Clean Streams Law and Pennsylvania Sewage Facilities Act, the plaintiff is seeking all damages available at law and in equity, including lost wages, front pay, liquidated damages, punitive damages, court costs, attorney’s fees, pre-judgment, continuing interest, any other relief that the Court deems necessary and proper, plus a trial by jury.
The plaintiff is represented by Christi Wallace of MKO Employment Law, in Pittsburgh.
The defendants are represented by Eric M. Brown of Siana Law in Chester Springs, Leonard B. Altieri of Michael F.X. Gillin & Associates in Media and Morgan M.J. Randle of Marshall Dennehey Warner Coleman & Goggin, in Pittsburgh.
Allegheny County Court of Common Pleas case GD-20-008582
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com