Brzozowski v. Commision

FRANK T. BRZOZOWSKI v. PENNSYLVANIA TURNPIKE COMMISION, et al.

CIVIL ACTION NO. 15-2339

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

November 28, 2018

MEMORANDUM

KEARNEY, J.

A discharged Pennsylvania Turnpike Commission employee allegedly once active in the Philadelphia Democratic Party pro se sues his former employer and a wide variety of allegedly affiliated persons¹ arguing they are unjustly enriched by his services. To invoke our limited jurisdiction, he also alleges they: retaliated against him for exercising his First Amendment rights; violated Pennsylvania's Whistleblower Law, the Fair Labor Standards Act, the Fair Pay Act, and the Equal Pay Act; discriminated against him based on national origin, sex and age; and, fired him without due process. Many of his claims are barred by the statute of limitations; others fail for a lack of facts which possibly could be amended in accord with this Memorandum. The Commission and its co-defendants move to dismiss. We grant the motion to dismiss in the accompanying Order dismissing some claims with prejudice and others without prejudice to allow the discharged employee an opportunity to plead timely claims with fact support if possible under governing law and Federal Rule of Civil Procedure 11.

I. Facts alleged in Amended Complaint material to the plead claims.²

Since 1984 until at least his filing of an Amended Complaint, Frank T. Brzozowski has served as a member of the 31st Ward Democratic Executive Commission.³ Since 2008, he has served on the Democratic State Committee.⁴ Mr. Brzozowski includes on his resume work experience with former Judge Bernard Snyder and the City Commissioners of Philadelphia.⁵

Mr. Brzozowski's early years with the Turnpike Commission.

On May 5, 2003, the Pennsylvania Turnpike Commission (Commission) hired Mr. Brzozowski as a supplemental toll collector. He briefly worked in the IT Department but then returned to his supplemental toll collector position in September 2003.⁶

The Commission does not tell toll collectors the amounts they collect during shifts.⁷ If a toll collector incurs a shortage in collecting fares, the Commission first notifies the collector three weeks later and demands a restitution payment by check.⁸ The Commission maintained a policy for enforcing toll collectors' shortages: "three shortages in a month constituted a warning letter and within 6 months another warning letter would warrant a 2-day suspension."⁹ Mr. Brzozowski claims he could not remember mistakes three weeks later, making it difficult to successfully grieve the resulting disciplinary action.¹⁰ Mr. Brzozowski alleges other unidentified Pennsylvania agencies and businesses collecting cash inform employees of discrepancies at the end of the shift.¹¹

Mr. Brzozowski's Secondary Employment Request.

Mr. Brzozowski applied for management positions at the Commission, including positions in the Legal Department.¹² Around December 15, 2010, Ms. Treaster called Mr. Brzozowski into Interchange Manager Frank Gillen's office regarding Mr. Brzozowski's application for a Legal Department position.¹³ During the meeting, Ms. Treaster "subjected [Mr. Brzozowski] to disciplinary steps."¹⁴ Ms. Treaster informed Mr. Brzozowski based on his application, shedetermined he also worked for a real estate broker and he would have to file a Secondary Employment Request with Human Resources.¹⁵

Around January 10, 2011, Mr. Gillen told Mr. Brzozowski to sign the secondary employment paperwork.¹⁶ Mr. Gillen told Mr. Brzozowski if he did not sign the paperwork, "he would be taken off the payroll and faced termination."¹⁷ Around January 15, 2011, Mr. Gillen commanded Mr. Brzozowski to sign the secondary employment paperwork or face an insubordination violation.¹⁸ On January 19, 2011, Mr. Brzozowski filed a union grievance complaining of the secondary employment policy.¹⁹

On January 27, 2011, Mr. Brzozowski signed the secondary employment paperwork.²⁰ On February 17, 2011, District Manager Ronald Duckett held a grievance hearing and subsequently terminated the disciplinary action.²¹

Mr. Brzozowski's tenure as executive assistant in the Office of Diversity and Inclusion.

On March 15, 2011, Mr. Brzozowski published an op-ed in several unnamed Pennsylvania newspapers.²² Mr. Brzozowski criticized Governor Corbett and his Republican supporters for "trying to privatize the PA Liquor Stores, the PA Lottery and the turnpike, which pumps about $450 million annually to PennDOT."²³

Notwithstanding these several challenges and critical op-ed, over a year later on April 17, 2012, the Commission promoted Mr. Brzozowski to Executive Assistant in the Office of Diversity and Inclusion.²⁴ Around the time he "was tested for Executive Assistant," Mr. Brzozowski applied for an Interchange Manager position but the Commission declined to promote him.²⁵ The Commission promoted employees Mike Mierzejewski, Eric Paul, and Dennis McClennan to Interchange Manager with salaries of $61,000 per year.²⁶ When Mr. Brzozowski learned of hispromotion, he thought he heard his new salary was $61,000 per year.²⁷ During a second phone call, he learned his salary was $50,000 per year and he would have to train for his new position.²⁸

Around the time of his promotion, the Commission posted an IT Executive Assistant position.²⁹ The position was not a policy-making position and did not require political affiliation.³⁰ Mr. Brzozowski alleges he was qualified for the position but Mses. "Schlegel and Ross arranged . . . conspired and ensured that someone other than Mr. Brzozowski would get the position."³¹

After his promotion, Mr. Brzozowski began taking courses at "PTC University," an in-house educational program.³² Mr. Brzozowski took these courses "to become more qualified and more efficient at his job," to "improve his clerical skills," to "perform his duties at his position," and to prove "he had the background to perform other positions such as Interchange Manager."³³

On June 26, 2012, Ms. Ross claimed Mr. Brzozowski made insulting and disparaging remarks, including a condescending comment to Eric Paul, a black interchange manager.³⁴ Mr. Brzozowski later discovered Ms. Ross commented to Human Resources resulting in the termination of Brian Slade, a black co-worker.³⁵

The Office of Diversity and Inclusion handles civil rights issues.³⁶ Mr. Brzozowski alleges the Office was unpopular with the Commission's eighty-five-percent, white male workforce.³⁷ In 2012, the Office employed three people with a budget of about $325,000.³⁸ In 2013, the Office added three employees and its budget increased to $400,000.³⁹

As Executive Assistant, Mr. Brzozowski calculated bid recommendations for Commission construction projects to determine if the prime contractor met the 10% "Disadvantaged Business Enterprises" quota.⁴⁰ Mr. Brzozowski claims on and before December 11, 2013, he protested when contractors chosen for the project did not meet the 10% quota and the second or third ranked contractor did meet the quota.⁴¹Mr. Brzozowski's termination.

On December 11, 2013, Ms. Ojo assigned a task to Mr. Brzozowski.⁴² Mr. Brzozowski finished the task but could not print a document because co-workers Carmen Rivas and Deborah Carpenter were using the printer.⁴³ After finally printing, he arrived late to a Microsoft Excel test Ms. Ross conducted.⁴⁴ Mr. Brzozowski claims Ms. Ross retaliated against him by failing to give a one-minute warning at the end of the test.⁴⁵ Ms. Ross claimed Mr. Brzozowski committed a "violation of workplace violence" during the test.⁴⁶

Mr. Brzozowski attaches an email from Ms. Ross to Ms. Schlegel regarding the Excel test.⁴⁷ Ms. Ross wrote Mr. Brzozowski arrived ten minutes late to the test with an Excel manual.⁴⁸ When Ms. Ross told him he could not use the Excel manual during the test, Mr. Brzozowski "took the manual and whipped it across the table and gave [Ms. Ross] a terrible glare."⁴⁹ Ms. Ross was "very scared."⁵⁰ Mr. Brzozowski alleges Ms. Ross lied to "cover-up her corrupt testing, and to conceal a biased selection process."⁵¹ Mr. Brzozowski further alleges Ms. Ross falsely claimed he glared at her and made "threatening" facial expressions during the test.⁵² Mr. Brzozowski claims he was merely "trying to focus to see the small words on the computer screen and peering over the top of the glasses frames."⁵³

After the test, three unnamed supervisors interviewed Mr. Brzozowski for an HR position.⁵⁴ Later that day, Ms. Ross "demonstrated hostile and violent actions with [an] Excel book" and "verbally threatened [Mr. Brzozowski and Ms. Ojo] in Italian."⁵⁵ Mr. Brzozowski is of Polish descent.⁵⁶

On December 26, 2013, Ms. Schlegel terminated Mr. Brzozowski for misconduct.⁵⁷ Ms. Schlegel listed grounds for termination in a letter, including spending the night at his work area on December 10, 2013 and using the computer system for personal reasons during overnight hoursfrom August to December 2013.⁵⁸ Ms. Schlegel also listed the December 11, 2013 Microsoft Excel test when Mr. Brzozowski "threw the Excel manual across the table and glared at [Ms. Ross]."⁵⁹ She explained Mr. Brzozowski violated the Workplace Violence Policy by "using threatening gestures and facial grimaces that intimidated another employee at the [Commission]."⁶⁰

Mr. Brzozowski's discrimination charge and lawsuit.

In June 2014, Mr. Brzozowski filed an EEOC Charge of Discrimination against the Commission, swearing:

On May 5, 2003, [the Commission] hired me as a Toll Collector. On April 17, 2012, [the Commission] promoted me into the position of Executive Assistant. I was discharged on December 12, 2013.

On or about October 2013, I discovered that Alice Sebring (Female, Legal Assistant) and Anna Marcella (Female, Legal Secretary) were hired for their respective positions. I was never given the chance to apply to either position because they were not posted. Ms. Sebring and Ms. Marcella were both hired as external candidates. I also applied for Executive

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