Alan Schorr’s Employment Case of The Week ending January 31, 2014

Kimmett v. Corbett, 2014 U.S. App. LEXIS 1692 (3d Cir., Jan. 28, 2014)

The Third Circuit upped the ante again in its attack on public whistleblowers. This latest Third Circuit decision in Kimmett v. Corbett will make it virtually impossible for a public employee to bring suit for whistleblower retaliation. Essentially, the Third Circuit held that if those who an employee blows the whistle on are upset at the whistleblowing, then they have the right to fire the whistleblower for disrupting the work environment. It is hard to believe, but that is the ruling.

Thomas Kimmett was supervisor for the Administrative Collections Unit in the Pennsylvania Office of the Attorney General. Kimmett alleged that he discovered evidence of mismanagement, improprieties, and malfeasance in the departments where he worked. He reported those problems both inside and outside his chain of command, as well as to an Assistant United States Attorney, an FBI agent, and other officials. Kimmett claimed that in retaliation for his complaints, he received poor reviews and was passed over for promotions.

After he failed to receive his promotion, he filed a federal Complaint against all of his supervisors claiming that they deliberately failed to investigate his claims of illegal misconduct for “purely political purposes”. His supervisors claim that Kimmett’s lawsuit “damaged Kimmett’s working relationships with his supervisors and that his allegations of criminal behavior led them to conclude that Kimmett could not litigate in the name of the Attorney General or on behalf of the Department.

Shortly thereafter he received another poor evaluation and accused his supervisors of retaliating against him. He demanded to be evaluated by someone else. The supervisor who gave him the bad write up (the same supervisor he blew the whistle on) viewed Mr. Kimmett’s response as “unmeasured and intemperate” and “showed an unwillingness to accept supervision” and thereby terminated his employment. Kimmett then amended complaint to allege wrongful and retaliatory termination. The District Court, after discovery, granted summary judgment in favor of the defendants for reasons to be discussed below, and Kimmett appealed to the Third Circuit, which affirmed.

The first basis for granting and affirming summary judgment is that the Courts determined that Kimmett’s complaints fell within the ambit of his duties as supervisor. Relying upon the Supreme Court case of Garcetti v. Ceballos, the Court found that the reports of unlawful behavior fell within his job responsibilities, and therefore summary judgment was appropriate under a First Amendment analysis. New Jersey Appellate Courts have been split with regard to Garcetti’s application to private whistleblowers. Most recently, in Lippman v. Ethicon, the New Jersey Appellate Division held that “Watchdog” employees are the most vulnerable to retaliation because they are uniquely positioned to know where the problem areas are and to speak out when corporate profits are put ahead of consumer safety. But that is not the law in Federal First Amendment retaliation claims.

The Third Circuit, having already affirmed the dismissal, did not need to go further in their analysis, but the panel was determined to make sure that public whistleblowers face a second, even more impossible obstacle to bringing a First Amendment retaliation claim. The panel held that because Kimmett’s lawsuit caused disruption in the workplace, it justified his termination, and therefore negated his retaliation claim. What is amazing is that the case law that the panel relied upon stands for the exact opposite:

Courts must also bear in mind that an employee who “accurately exposes rampant corruption” will no doubt cause a workplace disruption. O’Donnell v. Yanchulis, 875 F.2d 1059, 1062 (3d Cir. 1989) (citation and quotation marks omitted). In such a case, given the public’s strong interest in legitimate whistleblowing, it would be [19] “absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because the speech somewhat disrupted the office . . . .” O’Donnell, 875 F.2d at 1062 (3d Cir. 1989) (citation and quotation marks omitted). Thus, the mere existence of a workplace disruption may not be sufficient to overcome the employee’s interest. Czurlanis, 721 F.2d at 107. Instead, a public employer must tolerate a workplace disruption so long as it is “directly proportional to the importance of the disputed speech to the public.” Miller, 544 F.3d at 549 n.2.

After citing case law about how absurd it would be to authorize public officials to punish subordinates who blow the whistle simply because it disrupted the office, the panel made that very absurd conclusion. Finding that by suing his supervisors, Kimmett made it impossible for them to fairly evaluate him:

Kimmett’s own statements demonstrate that his lawsuit impaired discipline by superiors, had a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, and impeded the performance of the speaker’s duties or interfered with the regular operation of the enterprise.

Thus, the Third Circuit has now made it virtually impossible for any public whistleblower to maintain a First Amendment action. If the employee discovers the wrongdoing while working at his job, he cannot bring a claim. Even if he can clear that hurdle, he is not permitted to upset his supervisors by blowing the whistle on them, even if they are committing criminal acts, because whistleblowing disrupts the workplace and interferes with the regular operation of the enterprise.

Mr. Kimmett is not the only loser here. The public at large has lost because conscientious public employees will now be justifiably afraid to report crimes, corruption, and other dangerous behavior knowing that our Courts will not protect them if they suffer retaliation. Hopefully, New Jersey will not follow this abdication of the Court’s responsibility to protect free speech of public employees.

Plaintiff’s counsel: Walter E. Anderson, Esq., Wiltshire & Grannis, Washington, DC; Susan J. Forney, Esq., Neil A. Grover, Esq., Harrisburg, PA; Charles T. Kimmett, Esq., Wiltshire & Grannis, Washington, DC.

Defendants’ Counsel: Appellees: Susan J. Forney, Esq., John G. Knorr, III, Esq., Maryanne M. Lewis, Esq., Office of Attorney General of Pennsylvania, Harrisburg, PA.

District Court Judge: Hon. Matthew W. Brann.

Appellate Judges: Smith, Shwartz (on the opinion), and Scirica, Circuit Judges.