Olson, D. v. Lehigh University ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID OLSON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
LEHIGH UNIVERSITY :
:
Appellee : No. 1118 EDA 2022
Appeal from the Order Entered March 30, 2022
In the Court of Common Pleas of Northampton County
Civil Division at No(s): C-48-CV-2018-07261
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KING, J.: FILED APRIL 19, 2023
Appellant, David Olson, appeals from the order entered in the
Northampton County Court of Common Pleas, which granted summary
judgment in favor of Appellee, Lehigh University, in this Pennsylvania
Whistleblower Law action.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
December 27, 2018, Appellant filed a complaint alleging wrongful termination
by Appellee in violation of the Pennsylvania Whistleblower Law. Appellant
alleged that Appellee hired him on August 16, 2017, as the Director of
Employer Relations. Appellant’s offer of employment contained a six-month
provisional period to demonstrate acceptable performance. In December
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1Act of December 12, 1986, P.L. 1559, §§ 1–8, codified at 43 P.S. §§ 1421–
1428.
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2017, Appellant began compiling data on a tiering program for employers and
discovered that while his data reflected 8,000 jobs had been posted in the fall
of 2017, Appellee had represented that it posted more than 21,000 jobs in
that time, counting the same job postings multiple times. Specifically,
Appellant alleged that Appellee was counting re-postings of the same jobs as
“new” postings and counting different departments within the same employer
as different employers to inflate Appellee’s on-campus interview figures.
Appellant reported these discrepancies to his supervisor, Lori Kennedy, in
December 2017. Appellant alleged that Ms. Kennedy rejected the data
because it was in the wrong template. Appellant further claimed that Ms.
Kennedy’s attitude toward him changed after he reported the discrepancies.
On February 13, 2018, prior to the end of the provisional employment
period, Appellee terminated Appellant’s employment, citing Appellant’s
alleged failure to make behavioral changes, concerns over interactions with
the team, and a failure to adhere to office protocol, as its reasons for
Appellant’s termination.
Appellant further alleged that the reasons Appellee stated as grounds
for Appellant’s termination were pretextual. Appellant maintained that
Appellee terminated his employment because he reported a wrongdoing.
Specifically, Appellant averred that Appellee’s misreporting in the figures
relating to job postings and on-campus interviews violated the Pennsylvania
Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). Appellant
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alleged that Ms. Kennedy’s actions in failing to rectify the reported figures,
and in firing Appellant for having reported the error constitute a violation of
the Pennsylvania Whistleblower Law.
On January 11, 2021, Appellee filed a motion for summary judgment.
Specifically, Appellee claimed that Appellant did not make a good faith report
of wrongdoing or waste, and that Appellant failed to establish a causal
connection between his report of wrongdoing and his termination. The court
heard argument on the motion for summary judgment on March 15, 2022.
On March 30, 2022, the court granted Appellee’s motion for summary
judgment and dismissed Appellant’s complaint with prejudice. Appellant filed
a timely notice of appeal on April 20, 2022. On April 22, 2022, the court
ordered Appellant to file a concise statement of errors complained of on appeal
per Pa.R.A.P. 1925(b). Appellant complied on May 11, 2022.
Appellant raises the following questions on appeal:
1. The [trial] court applied the wrong causation analysis and
standard to Appellant’s prima facie case.
A. Did the [trial] court fail to apply the correct
standard of proof and burden of proof for a case
centered on the Pennsylvania Whistleblower law?
B. Did the [trial] court fail to correctly apply the proper
causation framework to Appellant’s prima facie case
analysis?
C. Did the [trial] court fail to properly apply the
McDonnell-Douglas Corp. v Green, 411 U.S. 792[,
93 S.Ct. 1817, 36 L.Ed.2d 668] (1973) causation
standard to Appellant’s prima facie case regarding the
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causation element?
D. Did the [trial] court fail to consider Appellant[’]s
circumstantial evidence of pretext as a whole and in
context related to the prima facie causation analysis
and burden of Appellant related to same?
2. The [trial] court improperly applied the summary
judgment standard in view of the record in this case.
A. Did the [trial] court err when it weighed the
evidence and/or made credibility determinations,
resolving disputes in favor of [Appellee] and/or not
weighing the evidence and all inferences therefrom in
the manner most favorable to Appellant, at the
summary judgment phase?
3. …Appellant sufficiently established the other non-
causation elements of his case for purposes of overcoming
summary judgment.
A. Did Appellant[] establish all the other (non-
causation) elements of his Whistleblower case,
sufficiently to overcome a summary judgment
motion?
B. With regard to the Whistleblower Law, does the
Pennsylvania Unfair Trade Practice and Consumer
Protection law constitute a Pennsylvania statute and
state the policy of Pennsylvania?
(Appellant’s Brief at 7-10) (unnecessary capitalization omitted).
Our Supreme Court has clarified our role on appellate review in this case
as follows:
On appellate review, an appellate court may reverse a grant
of summary judgment if there has been an error of law or
an abuse of discretion. But the issue as to whether there
are no genuine issues as to any material fact presents a
question of law, and therefore, on that question our
standard of review is de novo. This means we need not
defer to the determinations made by the lower tribunals. To
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the extent that this Court must resolve a question of law,
we shall review the grant of summary judgment in the
context of the entire record.
Valley National Bank v. Marchiano, 221 A.3d 1220, 1222 (Pa.Super. 2019)
(quoting Summers v. Certainteed Corp., 606 Pa. 294, 307, 997 A.2d 1152,
1159 (2010)). Our scope of review is plenary. Pappas v. Asbel, 564 Pa.
407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct.
2618, 153 L.Ed.2d 802 (2002).
In reviewing a trial court’s grant of summary judgment,
[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there exists
a genuine issue of material fact. We view the record in the
light most favorable to the non-moving party, and all doubts
as to the existence of a genuine issue of material fact must
be resolved against the moving party. Only where there is
no genuine issue as to any material fact and it is clear that
the moving party is entitled to a judgment as a matter of
law will summary judgment be entered. All doubts as to the
existence of a genuine issue of a material fact must be
resolved against the moving party.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause of
action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or defense
which in a jury trial would require the issues to be submitted
to a jury. In other words, whenever there is no genuine
issue of any material fact as to a necessary element of the
cause of action or defense, which could be established by
additional discovery or expert report and the moving party
is entitled to judgment as a matter of law, summary
judgment is appropriate. Thus, a record that supports
summary judgment either (1) shows the material facts are
undisputed or (2) contains insufficient evidence of facts to
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make out a prima facie cause of action or defense.
Upon appellate review, we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
In his first issue, Appellant argues the trial court erred in its analysis
regarding whether Appellant presented a prima facie case of a violation of the
Whistleblower Law. Appellant asserts the court should have applied the
pretext standard set forth in McDonnell-Douglas for determining causation.
Appellant insists that under this standard, his burden was only to show
evidence that the protected reporting was the likely reason for his termination.
Appellant claims the trial court ignored the broad circumstantial evidence of
pretext, and instead focused on its interpretation of the statements from his
supervisor. Appellant concludes summary judgment was inappropriate, and
this Court must grant relief. We disagree.
“The Whistleblower Law provides protection for employees of a public
employer who report a violation or suspected violation of state law.” Greco
v. Myers Coach Lines, Inc., 199 A.3d 426, 430-31 (Pa.Super. 2018), appeal
denied, 652 Pa. 309, 208 A.3d 462 (2019) (quoting Bailets v. Pennsylvania
Tpk. Comm’n, 633 Pa. 1, 13, 123 A.3d 300, 307 (2015)). Specifically, the
law provides:
No employer may discharge, threaten or otherwise
discriminate or retaliate against an employee regarding the
employee’s…privileges of employment because the
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employee…makes a good faith report or is about to report,
verbally or in writing, to the employer or appropriate
authority an instance of wrongdoing or waste by a public
body or an instance of waste by any other employer as
defined in this act.
43 P.S. § 1423(a).
To prove a violation of the Whistleblower Law, an employee “must show
by a preponderance of the evidence that, prior to the alleged reprisal, the
employee…had reported or was about to report in good faith, verbally or in
writing, an instance of wrongdoing or waste to the employer or an appropriate
authority.” 43 P.S. § 1424(b). “[A]n employer may defend a whistleblower
claim if it ‘proves by a preponderance of the evidence’ that it fired the
employee for ‘separate and legitimate reasons, which are not merely
pretextual.’” Greco, supra at 431 (quoting 43 P.S. § 1424(c)).
Instantly, the trial court explained that the McDonnell-Douglas
burden-shifting test is not applicable in the context of a Whistleblower Law
complaint. (See Trial Court Opinion, 5/17/22, at 2). The court noted that the
McDonnell-Douglas test applies in cases of employment discrimination
based on race, sex, or disability, and no such claim was made in this case.
The court stated that in ruling upon the motion for summary judgment it
applied the test set forth in Golaschevsky v. Commonwealth, Department
of Environmental Protection, 554 Pa. 157, 720 A.2d 757 (1998), and
Evans v. Thomas Jefferson University, 81 A.3d 1062 (Pa.Cmwlth. 2013),
which the court explained are applicable in the context of Whistleblower Law
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claims.2
In Golaschevsky, supra, our Supreme Court considered whether an
employee demonstrated a causal connection sufficient to establish a prima
facie case of retaliatory discharge under the Whistleblower Law. There, the
Court explained:
[T]o make out a prima facie case of retaliatory termination
pursuant to the Whistleblower Law, a plaintiff 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.” [Gray v. Hafer, 651 A.2d 221, 225 (Pa.Cmwlth.
1994), affirmed per curiam, 542 Pa. 607, 669 A.2d 335(1995)].
Golaschevsky, supra at 163, 720 A.2d at 759. Applying that standard, the
Court found that the appellant did not present sufficient evidence to establish
a causal connection because he did not “allege that his supervisors threatened
to fire him or to impose any other adverse consequences because of his report,
nor does he establish any other ‘concrete facts’ to connect the report with the
dismissal.” Id. The Court rejected the appellant’s reliance “solely on vague
and inconclusive circumstantial evidence” holding that without concrete
evidence showing a causal connection between his report and his subsequent
termination, he cannot establish a prima facie case of retaliatory discharge
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2We may look to the Commonwealth Court’s decisions for guidance, albeit not
as binding precedent. Greco, supra at 432 (citing Ford v. Ford, 878 A.2d
894, 900 (Pa.Super. 2005)).
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pursuant to the Whistleblower Law. Id. at 162-63, 720 A.2d at 759. See
also Evans, supra (applying Golaschevsky and requiring that causal
connection must be demonstrated by concrete facts that report of wrongdoing
led to dismissal).
More recently, in Bailets, supra, our Supreme Court explained that to
obtain relief on a Whistleblower Law claim, an individual must establish by a
preponderance of the evidence that he made a report of wrongdoing to the
employer, and that he was fired due to these reports. Bailets, supra at 14,
123 A.3d at 308. Relying on Golaschevsky, supra and Gray, supra, our
Supreme Court reiterated that the individual presenting such claim:
has to show by concrete facts or surrounding circumstances
that the report [of wrongdoing or waste] led to his dismissal,
such as that there was specific direction or information he
received not to file the report or there would be adverse
consequences because the report was filed.
Bailets, supra at 14, 123 A.3d at 308 (internal citations and quotation marks
omitted).
Here, we see no error in the court’s application of the “concrete facts”
standard in evaluating the instant Whistleblower Law violation claim. See id.;
Golaschevsky, supra; Evans, supra. Although Appellant disagrees with the
trial court’s application of the “concrete facts” standard, he has failed to cite
any cases that apply the McDonnell-Douglas standard in evaluating
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violations of the Whistleblower Law.3 Accordingly, Appellant’s first issue
merits no relief.
For purposes of disposition, we combine Appellant’s remaining issues.
Appellant argues that he sufficiently established the causation element of his
claim. Appellant insists he presented adequate evidence that Appellee’s
stated reasons for his termination were pretextual, and its actual motivation
for terminating Appellant’s employment was in retaliation for Appellant
reporting Appellee’s wrongdoing. Appellant contends that Appellee’s
misreported data constituted a violation of the UTPCPL, which prohibits unfair
methods of competition and unfair or deceptive acts or practices. Appellant
concludes the court erred by granting summary judgment in favor of Appellee,
and this Court must grant relief. We disagree.
“To prove a cause of action for wrongful discharge under the
Whistleblower Law, the plaintiff must show both a protected report of
wrongdoing or waste and a causal connection between that report and the
discharge.” Evans, supra at 1064. A “wrongdoing” is defined as:
A violation which is not of a merely technical or minimal
nature of a Federal or State statute or regulation, of a
political subdivision ordinance or regulation or of a code of
conduct or ethics designed to protect the interest of the
public or the employer.
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3 Appellant alleges that Golaschevsky, supra, and Gray, supra,
incorporated the McDonnell-Douglas standard; however, in neither case
does our Supreme Court discuss McDonnell-Douglas.
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43 P.S. § 1422.
To prove a violation of the Whistleblower Law, an individual “must
demonstrate [he] made a report of some action by [his] employer or its agent,
which, if proven, would constitute a violation of a law or regulation. Moreover,
the report must be of an actual violation, not a potential or contemplated
violation.” Greco, supra at 434.
Furthermore,
The causal connection that the Whistleblower Law requires
must be demonstrated 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. … The burden shifts to the defendant to show a
separate and legitimate reason for its actions only where
plaintiff has satisfied the threshold showing of a causal
connection. [V]ague and inconclusive circumstantial
evidence is insufficient to satisfy that threshold burden to
show a causal connection and shift the burden to the
defendant to justify its actions.
Evans, supra at 1070 (internal citations and quotation marks omitted).
In Golaschevsky, supra, the appellant claimed that he reported
copyright violations to his supervisor, which “touched off a series of retaliatory
actions, including negative performance evaluations, lack of cooperation from
fellow employees and supervisors, withholding of information regarding
computer software, and, ultimately, termination of [the a]ppellant’s
employment.” Golaschevsky, supra at 163, 720 A.2d at 759-60.
Nevertheless, the Court noted that this evidence was simply the appellant’s
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perception of how others treated him after the report. The Court explained
the appellant had failed to allege that “his supervisors threatened to fire him
or to impose any other adverse consequences because of his report, nor does
he establish any other ‘concrete facts’ to connect the report with the
dismissal.” Id. at 163, 720 A.2d at 759. In the absence of “concrete evidence
tending to show a causal connection between his report of alleged copyright
violations and his subsequent termination,” the Court decided the appellant
could not establish a prima facie case of retaliatory discharge pursuant to the
Whistleblower Law and affirmed summary judgment in favor of the appellee.
Id. at 164, 720 A.2d at 760.
In Evans, supra, the Commonwealth Court considered whether the
appellant had shown a causal connection between her report of her supervisor
violating a policy on administrating methadone to patients and the appellant’s
discharge less than a year later, for alleged “rude, intimidating, discourteous
and unprofessional behavior.” Evans, supra at 1067. There, the appellant
argued that she could show a causal connection between the report and her
discharge despite a lack of direct evidence based on the fact that the warnings
for her conduct toward patients and coworkers occurred after the report,
where she received a rating of “outstanding” in her review prior to the report
but a lower rating of “effective” in her review a few months after the report,
and based on the appellant’s complaints that her supervisor treated her
differently and in a hostile manner after the report. Id. at 1070. The Evans
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Court noted that “[i]n 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.” Id. at 1070–71 (citing Golaschevsky,
supra at 163-64, 720 A.2d at 759-60). Ultimately, the Court decided that
the appellant had not established a causal connection between the report and
her discharge, and therefore the burden did not shift to the appellee to justify
its actions. Thus, the Commonwealth Court affirmed the summary judgment
entered in favor of the appellee.
Here, the trial court found that Appellant established the first element
of his prima facie case, proving that he made a good faith report of wrongdoing
or waste. The court concluded that Appellant’s report that Appellee “was
improperly calculating and thereby inflating to a marked degree the number
of job postings and OCI opportunities ostensibly made available to Lehigh
students through its Office of Career & Professional Development…amounted
to ‘wrongdoing’ within the meaning of the Whistleblower Law insofar as it
violates the [UTPCPL].” (Trial Court Opinion, 3/30/22, at 5) (record citation
omitted).
The court then considered whether Appellant brought forth sufficient
evidence to support the second element—concrete evidence of a causal
connection between the report of wrongdoing and the adverse employment
action. The court found that Appellant did not meet his burden, and explained
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its determination as follows:
Having considered the record offered by [Appellant], we find
that [Appellant] has failed to bring forth sufficient evidence
to support this second element. Rather, the record on this
issue consists merely of vague circumstantial evidence, e.g.
[Appellant’s] subjective contention that his supervisor, Ms.
Kennedy, “did not like the fact that the data was revealing
inaccurate reporting, and the relationship changed after
that,” and that “all of a sudden things got cold with [his]
supervisor[.]” (Deposition of [Appellant], 5/25/21, 106,
229). As uncomfortable as a perceived shift in the
relationship between [Appellant] and Ms. Kennedy may
have been for [Appellant], same does not amount to
evidence of a causal connection between [Appellant’s]
report and his eventual dismissal. Furthermore, Ms.
Kennedy’s alleged statement that [Appellee] “cannot use
your numbers[…]that are half what they were last year” in
no way amounts to a specific direction to [Appellant] not to
report his data or that there would be adverse consequences
for [Appellant] because he made such a report. Id. at 73.
In fact, same does not even amount to an acknowledgement
that [Appellant’s] understanding of the data was accurate
or that the University had been utilizing inaccurate data. As
[Appellant] testified at his deposition, “I recall Lori
[Kennedy] wanting me to talk to Marcia and Rich[,] to try to
understand how they reported OCI the prior year. Because
the numbers, as I had stated earlier, were about half what
they were published the prior year. So Lori asked me to talk
to Marcia and Rich. […] So they would do it in some other
way. I don’t know exactly how they did it, except that they
did include different divisions.” Id. at 123, 125. None of
the testimony offered by [Appellant] nor any of the other
testimony or exhibits offered in opposition to the motion
amounted to prima facie evidence of a causal connection
between his reports to his supervisor and his eventual
termination. The fact that [Appellant’s] termination came
roughly two months after he made a report to his supervisor
does not mean that there is a causal connection between
the two. As the adage provides, correlation does not equal
causation.
(Trial Court Opinion, 3/30/22, at 6-7). The trial court found that Appellant
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failed to satisfy the threshold showing of a causal connection, and therefore
did not meet his initial burden of establishing a prima facie case.
Our review of the record supports the court’s analysis. Similar to the
facts in Golaschevsky, supra, Appellant’s allegations amount simply to a
change in his perception of how others treated him after he made the report.
He offers no concrete evidence, either direct or circumstantial, that would
show that his report led to his dismissal. As such, we agree with the trial
court that because Appellant did not satisfy that threshold burden to show a
causal connection, the burden did not shift to Appellee to justify its actions.
See Golaschevsky, supra. Therefore, the trial court applied the correct
standard in evaluating the motion for summary judgment concerning
Appellant’s Whistleblower Law claim, and correctly concluded that Appellant
could not prove the essential elements of the Whistleblower Law claim.
Accordingly, we affirm the court’s order granting summary judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2023
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