PITTSBURGH – A construction company’s objections that it did not retaliate against one of its inspectors or violate the Pennsylvania Whistleblower Law, after he reported discrepancies pertaining to whether or not groundwater on a job site was categorized as “contaminated,” have received a split decision by a state court judge.
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.”
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 Gannet Fleming or plead that PennDOT is an ‘appropriate authority’ under the PWL,” per the objections.
In an answer to those preliminary objections filed on Sept. 2, the plaintiff stood by their allegations.
“Mr. Austin has pled that when he discovered that PennDOT was spending millions of taxpayer dollars to transport water that was not contaminated, he informed PennDOT’s on-site representative of the waste of taxpayer money. He further alleged that ‘shortly after’ he made this report, his supervisor yelled at him and instructed him to ignore PennDOT’s waste and that two days later, he was removed from a future project,” the answer stated, in part.
“He then alleged that his supervisor engaged in a pattern of retaliatory conduct which included criticizing his work, subjecting him to unfair standards and changing his work schedule in ways which caused him significant hardship. This pattern of retaliatory conduct culminated in his termination. These facts sufficiently allege a violation of the Pennsylvania Whistleblower Law.”
Austin re-alleged that he reported the conduct at issue to an appropriate authority.
“PennDOT’s on-site representative was responsible for representing PennDOT’s interests on the work site, including ensuring that work was done properly and complied with regulations and that contractors complied with the terms of their contracts. With regard to the worksite then, this representative had both the duty and the responsibility to investigate regulatory violations and waste. Therefore, she was an ‘appropriate authority’ with regard to Mr. Austin’s concerns,” the answer stated.
In a Sept. 9 reply to the plaintiff’s response to its preliminary objections, Gannet Fleming argues that Austin “does nothing to show why his claim should not be dismissed.”
“In his response, plaintiff Mark Austin fails to show that he has successfully pled a claim under the PWL. Despite his protests, the complaint is deficient in stating a claim under the PWL for two reasons. First, Austin has not stated a claim under the PWL because the facts as pled reveal he cannot demonstrate the required causation needed to have a claim under the PWL,” the defendant’s reply stated, in part.
“Second, as pled, he did not make a report to an entity specified in the statute. Austin has thus failed to state a cognizable claim under the PWL, and the Court should grant Gannet Fleming’s preliminary objections under Pennsylvania Rule of Civil Procedure 1028(a)(4) and dismiss the case with prejudice.”
According to the company, even when considering the events in question, the facts “do not support causation because the three-month gap between the last event plaintiff pled and his termination, breaks any suggestion of causation.”
On Sept. 23, plaintiff counsel filed a motion for continuance as to the scheduled hearing for argument on the defense’s preliminary objections.
“Argument on defendant’s preliminary objections is scheduled for Thursday, Sept. 29, 2022. Plaintiff’s counsel is scheduled to begin trial in federal court on Monday, Oct. 3, 2022. Plaintiff anticipates that this trial will last at least a week. Due to this imminent trial, plaintiff’s counsel will be unable to adequately prepare for oral argument in this case on Sept. 29, 2022,” the continuance motion stated.
“Plaintiff respectfully requests that argument on defendant’s preliminary objections be continued to a later date. Plaintiff has conferred with counsel for defendant and defendant does not object to this request. Both parties’ counsel are available of the following days, should any of these days be satisfactory to the Court: Oct. 17-18, 20, 24-27.”
UPDATE
Allegheny County Court of Common Pleas Judge John T. McVay Jr. issued a split decision as to the defendant’s preliminary objections on Oct. 20.
“Upon consideration of defendant Gannet Fleming’s preliminary objections and any response thereto, it is hereby ordered, adjudged and decreed that the preliminary objections regarding causation are denied. Preliminary objections regarding reporting to an appropriate authority are granted. Plaintiff shall have 20 days to amend,” McVay said.
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