Pipito v. Lower Bucks Cnty. Joint Mun. Auth., CIVIL ACTION NO. 18-4885

ANTHONY J. PIPITO v. LOWER BUCKS COUNTY JOINT MUNICIPAL AUTHORITY, et al.

CIVIL ACTION NO. 18-4885

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

July 24, 2019

MEMORANDUM

KEARNEY, J.

Amid months of back-and-forth acrimony with his co-workers at a wastewater treatment facility arising from investigated claims he harassed his co-workers, Anthony J. Pipito sued his employer Lower Bucks County Joint Municipal Authority and the facility's managing director claiming the managing director's July 2018 memorandum addressed to him alone confirming procedures to avoid recurring employee disputes restricts his protected speech as to matters of public concern under the First Amendment. Two months before suing, Mr. Pipito characterized the July 2018 memorandum as disciplinary relating to his work conduct in a filing with Pennsylvania regulators. He turned around and filed this case, recharacterizing the absence of repeating the phrase "at work" in the same July 2018 memorandum restricts his protected speech. He then engaged in protected speech without an adverse effect.

As Mr. Pipito swore to Pennsylvania authorities, the July 2018 memorandum is an employee misconduct reminder addressed to his workplace conduct amidst charges of his harassing co-workers. He demanded the written memorandum after meetings directing his workplace conduct upon his return from an extended leave. We cannot read the Authority's failure to repeat the phrase "at work" in the July 2018 memorandum as restricting protected speech on matters of public concern. He also fails to show an injury-in-fact as he continued to speak out on matters of public concern without reprimand. In the accompanying Order, we grant the Authority's and the facility's managing director's motion for summary judgment and deny Mr. Pipito's cross-motion for summary judgment.

I. Undisputed Facts¹

Lower Bucks County Joint Municipal Authority ("Authority) hired Anthony J. Pipito as a certified waste water operator at a wastewater treatment facility in February 2007 (the "Facility").² Mr. Pipito continues to work at the Facility. His job duties include monitoring, maintaining and communicating issues regarding the Facility to Leonard Rodak.³

The Facility's Employee Handbook.

The Facility maintains a Policy and Procedures Handbook ("Employee Handbook").⁴ Mr. Pipito received a copy of the Employee Handbook when hired in 2007.⁵ The Employee Handbook contains: (1) a Civility Policy; (2) a Harassment Policy; and (3) a Whistleblower Policy.

The Civility Policy provides "[t]he Authority believes a work environment should be a place where mutual respect is practiced and reinforced. This Policy is designed to promote an environment in which all employees will be treated with respect and expect the same in return. This type of respect is referred to as civility. The best way to promote civility is to practice it on a daily basis. The Authority is committed to civility at work through education, training and discipline when necessary. The Authority does not intend this Policy to deprive any employee of his or her right to appropriate self-expression. Rather, it seeks to maintain an environment in which people can feel safe, secure and continue to grow in their occupation. The Authority expects all administrative/supervisory personnel, Board Directors, as well as all employees, to practice civility even in the most difficult circumstances. All employees shall communicate with each other and with members of the community with professionalism and mutual respect. It is the Authority'sposition that rude, abusive or intolerant behavior pollutes the work environment and that disrespect shall be addressed when it occurs and discipline will be imposed when and if necessary."⁶

The Harassment Policy provides "[t]he Authority prohibits all forms of illegal harassment of employees by managers, fellow employees, employees of outside vendors or visitors. The Authority will not tolerate harassment of its employees. Any form of harassment related to an employee's race, color, sex, religion, national origin, age, physical or mental disability, or marital or veteran status is a violation of this policy and will be treated as a disciplinary matter. For these purposes, the term 'harassment' includes, but is not necessarily limited to, slurs, jokes, or other verbal, graphic, or physical conduct relating to an individual's race, color, sex, religion, national origin, age, physical or mental disability, or marital or veteran status. ..."⁷ The Harassment Policy provides employees with a procedure to complain about harassment.⁸

The Whistleblower Policy provides "[t]he Authority encourages all employees including Supervisors, acting in good faith, to report suspected or actual wrongful conduct. ..."⁹ "Wrongful conduct" is defined as "[a] serious violation of Authority policy; a violation of applicable state and federal laws; ..."¹⁰

Mr. Pipito's 2014 termination and successful Union grievance.

In May 2014, the Authority terminated Mr. Pipito for conduct in handling a wastewater overflow.¹¹ The Facility's procedures required Mr. Pipito notify Mr. Rodak of the overflow.¹² Mr. Rodak in turn notified the Facility's Managing Director Dr. Vijay Rajput who directed him to notify Pennsylvania's Department of Environmental Protection.¹³ Dr. Rajput investigated the overflow incident and recommended the Authority's Board of Directors terminate Mr. Pipito's employment.¹⁴ The Board of Directors terminated Mr. Pipito's employment effective May 28, 2014.¹⁵

Mr. Pipito is a member of United Automobile Aircraft and Agricultural Workers of America (the "Union").¹⁶ Mr. Pipito filed a grievance with the Union, and, after a hearing, an arbitrator found the Authority did not have just cause to terminate Mr. Pipito and reduced his discipline to a fifteen-day suspension.¹⁷

Nearly two years later, in March 2016, the Department of Environmental Protection filed a petition against Mr. Pipito to suspend his waste water operator license resulting from the overflow incident.¹⁸ Mr. Rodak testified as a witness at the hearing before the Department of Environmental Protection, but Dr. Rajput did not.¹⁹ After the hearing, the Department concluded Mr. Pipito "committed misconduct in violation of the Water and Wastewater Systems Operators' Certification Act by failing to use reasonable care and professional judgment in the performance of his duties as a certified wastewater operator" with regard to the May 2014 overflow incident, but his misconduct "does not justify his suspension as a certified wastewater operator."²⁰

Mr. Rodak submits a harassment complaint to the Authority

against Mr. Pipito in November 2017.

On November 3, 2017, Mr. Rodak submitted a complaint reporting an encounter with Mr. Pipito on the evening of November 2, 2017.²¹ Mr. Rodak complained Mr. Pipito accused him of failing to call the Department of Environmental Protection regarding an overflow incident.²² When Mr. Rodak responded no overflow incident had been reported to him, Mr. Pipito accused Mr. Rodak of being part of a "cover up."²³ After learning from another employee heavy rain water caused some type of overflow, Mr. Rodak notified the Department of Environmental Protection.

The same day, Mr. Pipito again approached Mr. Rodak regarding the overflow and Mr. Rodak told Mr. Pipito to "stay away from me and stay out of my business."²⁴ In response, Mr. Pipito yelled an obscenity to Mr. Rodak, freely admitting he told Mr. Rodak to "go suck a d***."²⁵Mr. Pipito testified he used this language with Mr. Rodak in response to Mr. Rodak telling Mr. Pipito to either "stay the f*** out of [Mr. Rodak's] business" or "go f*** myself."²⁶

Mr. Rodak complained he "[has] tried to avoid contact with [Mr. Pipito] since he returned from being fired. I was assured by this company and the [Department of Environmental Protection] that there would be no repercussions at my work place after I testified against [Mr. Pipito] in court. I will not put up with [Mr. Pipito's] foul language, his hostile attacks or his false accusations about me and my job involving the [Department of Environmental Protection]."²⁷ At his deposition, Mr. Pipito admitted using obscene language with Mr. Rodak, but testified both of them used foul language as "another way of exchanging pleasantries with each other."²⁸

After receiving Mr. Rodak's harassment complaint, Dr. Rajput—who viewed Mr. Rodak's complaint as "complaining of harassment by [Mr. Pipito] in violation of the Authority's Civility Policy"— directed Michael Andrews,²⁹ to obtain statements from Mr. Pipito and other witnesses.³⁰ Dr. Rajput spoke with both Mr. Pipito and Mr. Rodak. Dr. Rajput told Mr. Pipito the incident with Mr. Rodak is the subject of investigation, instructed Mr. Pipito to avoid contact with Mr. Rodak unless required to perform work duties at the Facility, and the Authority would take appropriate action as necessary.³¹

Mr. Pipito meets with Mr. Andrews on March 27, 2018.

Mr. Pipito took a medical leave on December 18, 2017 and remained out of work until March 2018.³² On March 27, 2018, Mr. Pipito met with Mr. Andrews at Dr. Rajput's direction.³³ Mr. Andrews memorialized his meeting with Mr. Pipito in a memorandum addressed to Dr. Rajput.³⁴ Mr. Andrews' memorandum described the purpose of the meeting as to discuss Mr. Pipito's return to work and the Authority's notice of "hostility and harassment claim towards him."³⁵ Mr. Andrews noted he told Mr. Pipito "there shall be no contact with Lenny Rodak ...other than what is required in his operator duties" and "any [Facility] personnel or human resources questions/concerns are to be given directly to [Mr. Andrews]."³⁶

Mr. Pipito also took notes of his meeting with Mr. Andrews.³⁷ Mr. Pipito testified he asked Mr. Andrews about a "civility charge" relating to Mr. Rodak's use of foul language.³⁸ Mr. Pipito asked Mr. Andrews to "reduce to writing allowable interactions with [Mr.] Rodak."³⁹ Mr....