Kovac v. Pennsylvania Turnpike Commission , 444 F. App'x 588 ( 2011 )


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  •                                                          NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 10-4730
    _____________
    DONALD KOVAC,
    Appellant
    v.
    PENNSYLVANIA TURNPIKE COMMISSION;
    MITCHELL RUBIN; GEORGE HATALOWICH;
    MELVIN M. SHELTON; MARK ROWE
    _____________
    Appeal from the United States District Court
    for the Western District of Pennsylvania
    (D.C. Civil No. 2-09-cv-00400)
    District Judge: Honorable Terrence F. McVerry
    _____________
    Submitted Under Third Circuit LAR 34.1(a)
    September 12, 2011
    Before: RENDELL, JORDAN and BARRY, Circuit Judges.
    (Opinion Filed: September 13, 2011)
    _____________
    OPINION OF THE COURT
    _____________
    RENDELL, Circuit Judge.
    Donald Kovac urges on appeal that the District Court erred in granting
    summary judgment to the Defendants on Kovac’s claims that he was terminated
    from his job at the Pennsylvania Turnpike Commission because of his political
    affiliation, or because he exercised his right to free speech, in violation of 42
    U.S.C § 1983.1 We will affirm.2
    I.
    Kovac was employed as a Labor Relations Manager by the Pennsylvania
    Turnpike Commission (“PTC”) between April 2005 and November 2008, when he
    was terminated from his position. He alleges that a confluence of events and
    conspiracies caused him to be fired in retaliation for either negative comments he
    made about U.S. Congressman Robert Brady to PTC Chief Executive Officer
    Joseph Brimmeier, or for his refusal to show loyalty to Teamsters Union Local 77
    (“Local 77”) when adjudicating union grievances. In his complaint, Kovac named
    PTC and its Chairman Mitchell Rubin, Chief Operating Officer George
    Hatalowich, employee Melvin Shelton, as well as Local 77 Business Agent Mark
    Rowe (“Defendants”). Kovac alleges that because of his comments about
    Congressman Brady, or his disloyalty to Local 77 in resolving grievances, Rowe
    1
    The original complaint also included a whistleblower claim filed under
    Pennsylvania state law, but that issue was dismissed by stipulation and agreement
    of all parties pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii).
    2
    Our jurisdiction over this matter is proper pursuant to 
    28 U.S.C. § 1291
    . We
    exercise plenary review over a District Court’s decision to grant summary
    judgment. Hugh v. Butler Cnty Family YMCA, 
    418 F.3d 265
    , 266 (3d Cir. 2005).
    We apply the same test as the District Court: whether there is a genuine issue of
    material fact, and, if not, whether the moving party is entitled to judgment as a
    matter of law. Armbruster v. Unisys Corp., 
    32 F.3d 768
    , 777 (3d Cir. 1994),
    abrogated on other grounds by Showalter v. Univ. of Pittsburgh Med. Ctr., 
    190 F.3d 231
     (3d Cir. 1999).
    2
    and Shelton requested that PTC Chairman Rubin fire Kovac. Kovac further
    alleges that Rubin subsequently brought Defendant Hatalowich in on the scheme.
    At the close of discovery, Defendants each moved for summary judgment.3
    After reviewing the evidence, the District Court held that a reasonable jury could
    not find that Kovac had satisfied the necessary elements of his claims. In
    particular, the District Court found Kovac had insufficient evidence of a link
    between his protected activities and the termination of his employment. As a
    result, the District Court granted summary judgment in favor of the Defendants.
    Kovac filed a timely appeal.
    II.
    To establish a claim for retaliation under 
    42 U.S.C. § 1983
     based on
    political activity a plaintiff must demonstrate:
    (1) that the employee works for a public agency in a position that
    does not require a political affiliation, (2) that the employee
    maintained an affiliation with a political party, and (3) that the
    employee’s political affiliation was a substantial or motivating factor
    in the adverse employment decision.
    Goodman v. Pa. Tpk. Comm’n, 
    293 F.3d 655
    , 663-64 (3d. Cir 2002) (quoting
    Robertson v. Fiore, 
    62 F.3d 596
    , 599 (3d Cir. 1995) (internal quotation marks
    omitted)). Similarly, to establish a retaliation claim based on protected First
    Amendment activity under 42 U.S.C § 1983, “a plaintiff must allege two things:
    (1) that the activity in question is protected by the First Amendment and (2) that
    3
    The three PTC employees shared the same legal counsel while Rowe was
    separately represented.
    3
    the protected activity was a substantial factor in the alleged retaliatory action.”
    Hill v. Borough of Kutztown, 
    455 F.3d 225
    , 241 (3d Cir. 2006).
    The District Court granted summary judgment because Kovac failed to
    produce evidence upon which a reasonable jury could find that his protected
    activity was a substantial or motivating factor for his termination. As the District
    Court wrote:
    In summary, a reasonable jury could not conclude from this record
    that a “substantial or motivating reason” for Kovac’s termination
    was due to retaliation by Defendants for Kovac’s alleged protected
    activities. Evidence of the requisite causal link does not exist in this
    record.
    (App’x 13.) Consequently, the sole issue before our Court is whether there was
    sufficient evidence upon which a reasonable jury could decide that there was a
    causal link between Kovac’s alleged protected activity and the termination of his
    employment. To establish this casual link:
    [A] plaintiff usually must prove either (1) an unusually suggestive
    temporal proximity between the protected activity and the allegedly
    retaliatory action, or (2) a pattern of antagonism coupled with timing to
    establish a causal link.
    Lauren W. ex rel. Jean W. v. DeFlaminis, 
    480 F.3d 259
    , 267 (3d Cir. 2007). In the
    absence of these elements, we have held that evidence of causation may be
    “gleaned from the record as a whole.” Farrell v. Planters Lifesavers Co., 
    206 F.3d 271
    , 281 (3d Cir. 2000). In addition, summary judgment may be defeated
    when “a reasonable inference can be drawn that an employee’s speech was at least
    one factor considered by an employer in deciding whether to take action against
    4
    the employee.” Merkle v. Upper Dublin Sch. Dist., 
    211 F.3d 782
    , 795 (3d Cir.
    2000). However, even if the protected activity is a factor, “the employer may
    defeat the employee’s claim by demonstrating that the same adverse action would
    have taken place in the absence of the protected conduct.” Hill v. City of
    Scranton, 
    411 F.3d 118
    , 125 (3d Cir. 2005) (citing Mt. Healthy City Sch. Dist. Bd.
    of Educ. v. Doyle, 
    429 U.S. 274
    , 287 (1977)).
    Kovac’s evidence consisted mainly of his own testimony. According to
    Kovac, Shelton and Rowe repeatedly threatened to have him fired, and increased
    their hostility towards him in the final year of his employment. In addition, Kovac
    asserts he made negative comments to Brimmier about Shelton and Congressman
    Brady, which somehow reached Shelton, Rowe, Hatalowich, and Brady’s son,
    who also worked at PTC, and thereby caused Kovac to be fired. However,
    Kovac’s testimony as to whether Rubin had any knowledge of Kovac’s comments,
    or that he interacted with Shelton, or Rowe, or that Shelton and Rowe conspired
    with each other to have Kovac fired was vague, speculative and conclusory. There
    was little or no evidence to show that Brimmier and Hatalowich ever discussed the
    comments Kovac alleges he made to Brimmier.
    The only corroborating evidence Kovac presented was that Hatalowich
    knew Shelton and Kovac had “conflicts and difficulties” in the past, that several
    years before his termination Shelton and Rowe may have pressured Kovac about
    certain union and political issues, and that PTC Hatalowich and Brimmier met
    with the head of Kovac’s department about her budget and personnel plan before
    5
    any layoffs were announced. This evidence is insufficient to create a genuine
    issue of material fact. We agree with the District Court that there is simply too
    little support for a causal chain between Kovac’s alleged protected activities and
    his termination for a reasonable jury to be able to infer that his termination was a
    retaliatory act caused by his protected activities.
    In retaliation cases where we have found sufficient evidence to defeat
    summary judgment, the circumstantial causation evidence has been much stronger.
    For example, in Scranton the plaintiffs’ evidence of retaliation was sufficient to
    defeat summary judgment where the plaintiff was terminated for violating a local
    residency requirement while other similarly situated employees who had not
    engaged in protected activities were not terminated. 
    411 F.3d at 127
    . Likewise, in
    Merkle, the protected activity was well documented, and objective evidence and
    disinterested testimony showed the alleged retaliatory action – a criminal
    prosecution – may have been caused by the plaintiff’s decision to engage in
    protected activity. 
    211 F.3d at 795
    . Similarly, in San Filippo v. Bongiovanni, we
    found the evidence sufficient to defeat summary judgment where there had been
    public statements by a terminated employee’s superior that he “might have been
    treated differently,” had “he behaved better earlier in terms of his relations with
    his colleagues.” 
    30 F.3d 424
    , 434 (3d Cir. 1994).
    In each of these cases, there was sufficient evidence to create a genuine
    issue of material fact as to whether the actions were triggered by a desire to
    retaliate against the plaintiff for engaging in protected activity. In contrast, in the
    6
    instant case, there is no evidence of a similar nature. Instead, Kovac’s case is
    analogous to DeFlaminis, where we upheld summary judgment, because there was
    simply no evidence in the record to support an inference of causation. See 
    480 F.3d at 272
    .4
    We need not address Defendants’ contention that Kovac was terminated
    along with others for budgetary reasons – and due to his poor performance –
    because Kovac’s failure to offer sufficient evidence of causation dooms his case.
    III.
    For the foregoing reasons, we will affirm the District Court’s grant of
    summary judgment.
    4
    Kovac also urges that “how” he was terminated and the fact that his
    unemployment benefits were contested after he was fired constitutes evidence of
    causation. We are not persuaded that this evidence helps Kovac satisfy his
    burden.
    7