A former employee of the Pennsylvania Turnpike Commission may proceed with his complaint alleging violations of the Whistleblower Law, the Pennsylvania Supreme Court ruled in Bailets v. Pennsylvania Turnpike Commission, __ A.3d __ (No. 12 MAP 2014, filed August 31, 2015). Ralph Bailets was employed by the Commission from 1998 to 2008 as its manager of financial reporting and systems. Bailets’ supervisor was Anthony Maun, the Commission’s director of accounting, and his co-worker, Nikolaus Grieshaber, later became his superior as the Commission’s chief financial officer. Bailets frequently complained to Maun and Grieshaber about improprieties and wasteful practices he observed in connection with the Commission’s computer systems contract with Ciber, Inc.; improper EZPass discount; politically motivated personnel actions; and the use of multiple, unnecessary external investment managers. Bailets’ job title and responsibilities were changed in June 2008 and he was ultimately terminated in November 2008.
Believing the adverse employment actions were retaliation for his reports of wrongdoing and waste, Bailets filed a complaint in Commonwealth Court alleging a claim under the Whistleblower Law, 43 P.S. §§1421-1428, against the Commission, Maun and Grieshaber. The defendants moved for summary judgment, rejoining that Bailets was discharged along with 14 other individuals as part of cost-cutting measures. In an unreported, single-judge opinion, Senior Judge Friedman granted the defendants’ motion, holding that the Commission had a legitimate managerial reason for terminating Bailets; Grieshaber was not Bailets’ supervisor at the time of the reports of wrongdoing; and, with regard to Maun, there was no report of “wrongdoing.” Judge Friedman also found that some of Bailets’ claims were not made in good faith, i.e., he complained only when it affected him. Bailets appealed.
The Supreme Court reversed and remanded for further proceedings, holding that there were disputed issues of material fact surrounding the reasons for Bailets’ termination and its connection to his reports of improper activity. Writing for the unanimous Court, Justice Eakin observed that, viewing the record in Bailets’ favor, both Maun and Grieshaber admonished him that reporting his observations about the Ciber contract would place his job in jeopardy. That Grieshaber was Bailets’ peer at the time of the reports was irrelevant, the Court noted, because he was still a proper recipient of a report under the Whistleblower Law as “an agent” of the Commission. The Court further held that Bailets’ allegations, if true, were reports of “wrongdoing” because they constituted violations of state law, i.e., the Procurement Code. As for a causative link between Bailets’ reports and his termination, the Court concluded that he adduced sufficient evidence to survive summary judgment. Finally, the Court held that the Commonwealth Court erred in deciding the issue of pretext in favor of the defendants since Bailets presented conflicting evidence that the Commission’s budgetary excuse was a mere pretext and the issue required further fact-finding based on the credibility of witnesses.