PITTSBURGH – A construction company denies that it retaliated against and fired one of its inspectors, after he reported discrepancies pertaining to whether or not groundwater on a job site was categorized as “contaminated," saying it did not violate the Pennsylvania Whistleblower Law.
Mark Austin of McKean County first filed suit in the Allegheny County Court of Common Pleas on July 18 versus Gannet Fleming, of Pittsburgh.
“At all times relevant to this complaint, Mark Austin was employed by GF as a Construction Inspector. In or about the spring of 2021, Austin was working as Construction Inspector on a project involving the construction of a building for the Pennsylvania Department of Transportation. PennDOT hired a third-party sub-contractor to haul contaminated groundwater/stormwater from the site. This service was costing Pennsylvania taxpayers millions of dollars. Austin suspected that the water was not contaminated and did not need to be removed. He had tests conducted which confirmed that the ground water was not contaminated,” the suit said.
“Austin reported the test results to PennDOT’s on-site representatives because he believed, in good faith, that PennDOT was wasting millions of dollars of taxpayer money to remove and transport groundwater which did not need to be removed or transported. On Aug. 24, 2021, shortly after he reported his findings to PennDOT, Austin received a phone call from his immediate supervisor, Bob Sciullo. During this call, Sciullo yelled at Austin and instructed him to ignore his findings regarding the groundwater. Two days later, Sciullo told Austin that he was being removed from a Fall 2021 project for which he had been specifically requested by Sciullo’s supervisor.”
The suit added that Sciullo and his girlfriend (who is also Sciullo’s immediate subordinate) began to criticize Austin’s work performance and “subject him to different standards than other employees.”
“On Oct. 22, 2021, Sciullo changed Austin’s long-standing work schedule. Specifically, he demanded that Austin be physically at the worksite Monday through Friday. Austin had been working on site Monday through Thursday for several months without incident or issue, and his assistant (who was not a GF employee) was always present on Fridays. Sciullo told Austin that GF was making the change because a GF inspector needed to be on site every day. The change was a significant hardship to Austin because of the distance he was required to travel to the site from his home,” the suit stated.
“On Jan. 20, 2022, Sciullo told Austin that the project no longer needed two inspectors. He removed Austin from the project, but retained his younger, less-experienced assistant. This directly conflicted with Sciullo’s representations that a GF inspector was required to be on site five days a week. On Jan. 20, 2022, GF chose not to reassign Austin to another project and instead terminated his employment.”
UPDATE
The defendant filed preliminary objections in the matter on Aug. 15, contending that it did not violate the Pennsylvania Whistleblower Law and that any such claims to the contrary, even if true, would have expired under the law’s statute of limitations.
“To establish a prima facie case under the PWL, Austin must ‘show by concrete facts or surrounding circumstances that the report [of wrongdoing or waste] led to [the plaintiff’s] dismissal, such as 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. Austin must establish ‘sufficient evidence to establish a causal connection between his report and his termination. The events Austin’s complaint describes in Paragraphs 11-14 of the complaint are all outside of the applicable statute of limitation of the PWL. (‘A person who alleges a violation of this act may bring a civil action in a court of competent jurisdiction for appropriate injunctive relief or damages, or both, within 180 days after the occurrence of the alleged violation.’).” the objections stated, in part.
“Since Austin’s report was in August of 2021, the termination that forms the basis of his complaint took place approximately five months after the report, which is too distant to establish causation. ‘In a Whistleblower Law action, the mere fact that the 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. (Evans v. Thomas Jefferson University).”
The defense further countered that, in its view, Austin failed to plead that his report was to one of the two entities specified in the PWL, either his employer or the appropriate authority.
“In the complaint, Austin pleads that he made a report to on-site representatives of PennDOT. Austin does not plead that he made a report to Gannett Fleming or plead that PennDOT is an ‘appropriate authority’ under the PWL,” per the objections.
For violation of the PWL, the plaintiff is seeking in excess of the limits of arbitration to include front pay, back pay, compensatory damages and such other relief as is appropriate and equitable under the circumstances, plus attorney’s fees and costs incident to the successful completion of this litigation.
The plaintiff is represented by Margaret S. Coleman of O’Brien Coleman & Wright, in Pittsburgh.
The defendant is represented by Andrew F. Maunz of Jackson Lewis, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-008822
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com