PITTSBURGH – A wrongful termination suit from a man who claims he was fired from a water and sewer authority when he refused to dump raw sewage into the Monongahela River is the burden of the West Elizabeth Sanitary Authority, according to Union Township.
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 Lennon and 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.
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.
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.
UPDATE
Counsel for Union Township filed an answer and cross-claim to an amended version of Payne’s lawsuit on Dec. 17, denying its allegations and levying liability for the requested damages against WESA instead.
“Union Township is a political subdivision of the Commonwealth of Pennsylvania and a ‘local agency’ within the meaning of the Political Subdivision Tort Claims Act. As such, defendant Union Township invokes all immunities and defenses available to it pursuant to the Political Subdivision Tort Claims Act,” the answer stated.
“Plaintiff was at no point an employee of Union Township and was employed solely by WESA. Union Township and WESA are not joint employers within the meaning of the law. To the extent any individual was appointed by Union Township to the WESA Board, that individual(s) did not act on behalf of or represent Union Township. No WESA Board Member(s) acted on behalf of Union Township or reported to the Union Township supervisors regarding matters of WESA business.”
Union Township averred it further reserved the right to prove that plaintiff did not maintain a reasonable, good-faith belief that his actions in refusing to follow an order from Larry Lennon and/or Scott Pearson to take two tanks offline would stop or cause sewage sludge dumping into the Monongahela River.
“To the extent which discovery may so reveal, Union Township reserves the right to prove that defendant WESA had legitimate and lawful reasons for terminating plaintiff’s employment related to issues of public safety and the discipline and morale of the public work force, and reserves the right to prove that plaintiff was an employee at will and had no property right in his employment with WESA,” the answer said
Its rationale was followed by its cross-claim against WESA.
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, plus Scott G. Dunlop 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