                                             NOT PRECEDENTIAL


       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                  ________

                      No. 12-3491
                      _________

               ROBERT M. WALLETT,
                           Appellant

                           v.

    PENNSYLVANIA TURNPIKE COMMISSION,
           JOSEPH G. BRIMMEIER,
          GEORGE M. HATALOWICH
                 ________

     On Appeal from the United States District Court
         for the Middle District of Pennsylvania
                (D.C. No. 1-10-cv-02092)
      District Judge: Honorable Sylvia H. Rambo
                        _______

       Submitted Under Third Circuit LAR 34.1(a)
                     May 7, 2013

Before: SLOVITER, FUENTES, and ROTH, Circuit Judges

                 (Filed: May 30, 2013)
                   ______________

                     OPINION
                   _______________
SLOVITER, Circuit Judge.


       Robert M. Wallett filed suit under 42 U.S.C. § 1983 and the First Amendment

alleging that his former employer, the Pennsylvania Turnpike Commission (“the

Commission”), and two of its former executives (collectively, “Defendants”) demoted

and later fired him because he refused to participate in their pay-to-play and influence

peddling schemes. The District Court first dismissed Wallett‟s supplemental state law

claims and then granted Defendants‟ motion for summary judgment on the First

Amendment political patronage discrimination claim. For the reasons that follow, we

will affirm.

                                     I. Background

       In 1997, the Commission hired Wallett as Director of Maintenance. He was hired

during a Republican administration. Throughout his tenure at the Commission, Wallett

served as an at-will employee.

       In 2003, newly-elected Democratic Governor Edward Rendell appointed Joseph

G. Brimmeier to be the new Chief Executive Officer (“CEO”) of the Commission. In

May 2003, Brimmeier transferred Wallett from his position as Director of Maintenance to

Director of Facilities. As a result of the transfer, Wallett was demoted from a Grade 19

position to a Grade 18 position.

       The Facilities Department was part of the Commission‟s Engineering Department.

As Director of Facilities, Wallett led the Department‟s consultant selection process which

was used when there was a need for mechanical, electrical, plumbing, and environmental


                                             2
services that could not be performed by Commission staff. After a need for outside

services was identified, Wallett‟s staff prepared summaries and recommendations on

each contractor who had submitted a letter of interest.

       Each contract was then placed on the schedule for discussion at the next meeting

of the Technical Review Committee (“TRC”), a committee of Commission employees

who provided rankings and recommendations to the Commissioners for all outside

engineering contracts. At all relevant times, the TRC consisted of CEO Brimmeier, Chief

Operating Officer (“COO”) George Hatalowich, the Chief Engineer, an Assistant Chief

Engineer, the Manager of Contracts Administration, and an individual appointed by the

CEO.

       When a Facilities Department-related engineering contract was on the TRC

agenda, Wallett would attend the meeting and make a short presentation summarizing the

applicants and recommending certain firms for the contract. Wallett attended, on

average, four to six TRC meetings each year during his tenure as Director of Facilities.

The TRC members ranked each applicant and then recommended an applicant to the

Commissioners who were ultimately responsible for awarding the contracts.

       In May 2009, Brimmeier decided to eliminate the position of Director of Facilities

and terminated Wallett‟s employment with the Commission. Approximately three

months after his termination, Wallett submitted an application for the newly-created

position of Manager of Facilities and Energy Management Operations. A panel of

Commission employees, including Hatalowich, interviewed Wallett, but the

Commissioners ultimately hired another interviewee, John Christensen, for the position.

                                             3
       In October 2010, Wallett filed a complaint pursuant to 28 U.S.C. § 1983 in the

United States District Court for the Middle District of Pennsylvania, alleging that the

Commission, Brimmeier, and Hatalowich had violated his First Amendment rights.

Wallett also brought supplemental state law claims for Termination in Violation of Public

Policy and Additional Consideration. After dismissing the state law claims, the District

Court granted Defendants‟ motion for summary judgment on the First Amendment

political patronage discrimination claim. Wallett appealed.

                                       II. Analysis1

       In urging reversal of the District Court, Wallett argues that Defendants knew of his

refusal to participate in their pay-to-play scheme and terminated him based on that

knowledge. Wallett further argues that he was wrongfully discharged in violation of

Pennsylvania public policy.

                         A. Political Patronage Discrimination

       According to Wallett, Defendants knew that he refused to participate in their pay-

to-play scheme and therefore demoted and later terminated him because of that failure to

support them. In Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), the Supreme

Court held that “promotions, transfers, and recalls after layoffs based on political

affiliation or support are an impermissible infringement on the First Amendment rights of


1
 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367, and we
have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over a district court‟s grant of a motion to dismiss and over its grant of a motion for
summary judgment. See Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir.
2013); Interstate Outdoor Adver., L.P. v. Zoning Bd. of Twp. of Mount Laurel, 706 F.3d
527, 529 (3d Cir. 2013).
                                              4
public employees.” 497 U.S. at 75. This court has distilled the Supreme Court‟s political

patronage doctrine into a three-part test that a plaintiff must satisfy in order to establish a

prima facie case of political patronage discrimination.

       A plaintiff seeking to prove a political patronage discrimination claim must show

that (1) he “was employed at a public agency in a position that does not require political

affiliation, (2) [he] was engaged in constitutionally protected conduct, and (3) this

conduct was a substantial or motivating factor in the government‟s employment

decision.” Galli v. N.J. Meadowlands Comm’n, 490 F.3d 265, 271 (3d Cir. 2007).

“Implicit in the third prong is a requirement that the plaintiff produce sufficient evidence

to show the defendant knew of plaintiff‟s political persuasion.” Goodman v. Pa.

Turnpike Comm’n, 293 F.3d 655, 664 (3d Cir. 2002). This “requires proof of both

knowledge and causation.” 2 Galli, 490 F.3d at 275.

       The central disputed question in this appeal is whether Defendants knew that, by

refusing to participate in their pay-to-play scheme, Wallett did not support their

administration.3 See Galli, 290 F.3d at 275 (finding that the knowledge component is


2
  We focus here on the knowledge component of the third prong of this court‟s political
patronage discrimination test because that is the only prong that was briefed by the
parties. While not expressly conceding that Wallett has satisfied the first two prongs,
Defendants make no meaningful argument to the contrary. Therefore, we will assume
without deciding that Wallett was employed at a public agency in a position that did not
require a political affiliation and that he engaged in constitutionally protected conduct.
3
  The District Court erred to the extent that it required Wallett to show that “Defendants
were aware of [his] political views and these views contributed to his termination . . . .”
Wallett v. Pa. Turnpike Comm’n, No. 10-2092, 2012 WL 3579575, at *7 (M.D. Pa. Aug.
17, 2012). This court has squarely held that “the right not to have allegiance to the
official or party in power itself is protected under the First Amendment, irrespective of
whether an employee is actively affiliated with an opposing candidate or power.” Galli,
                                               5
met where defendants know that plaintiff fails “to show public support for its officials

and the political party in power”). Wallett theorizes that, as a merit hire of a Republican

administration, he was singled out for termination by the new Democratic administration

because by not recommending Defendants‟ favored contractors he did not support their

pay-to-play scheme. Even when read in the light most favorable to Wallett, however, the

evidence in the record does not support Wallett‟s assertion that Defendants were aware of

his failure to support their alleged pay-to-play scheme.

       Wallett presents a series of facts that he claims demonstrate Defendants‟

awareness of his lack of support for them. First, after he was transferred from Director of

Maintenance to Director of Facilities, Wallett recalls that the new Director of

Maintenance told him that he should not “„take it personally‟” and that management “just

wanted someone they could deal with especially on the personnel side.” App. at 618.

       Second, Wallett refers to statements made by William Poole, a Facilities

Department engineer under Wallett‟s immediate supervision. Poole stated in his affidavit

that Orbital, Inc., a frequent Commission contractor, “while meeting minimal

qualifications (i.e., licensed engineers, etc.) was the least efficient and most expensive

company and had multiple problems.” App. at 666. Poole was therefore “shocked”

when Orbital was selected by the TRC for another contract even though the Facilities




490 F.3d at 272. Notwithstanding the fact that the District Court took an overly narrow
view of what is required for knowledge in a political patronage discrimination claim, we
will nevertheless affirm the District Court‟s judgment because Wallett failed to satisfy
that requirement even under this court‟s broader interpretation of knowledge in this
context.
                                              6
Department had apparently given Orbital low rankings in its summary and

recommendation. Id.

       Third, Frank Kempf, Wallett‟s supervisor in his position as Director of Facilities,

testified during his deposition that he was directed by COO Hatalowich to lower

Wallett‟s 2007 to 2008 performance evaluation from outstanding to commendable in two

categories. In his deposition, however, Kempf could not recall the specific reason

Hatalowich had asked him to lower Wallett‟s performance rating.

       Next, Wallett points to a 2008 incident in which Kempf was charged with

reviewing 160 employees in the Engineering Department, including Wallett, and

recommending that six be laid off. When Kempf submitted the list, both CEO Brimmeier

and Hatalowich asked Kempf why Wallett‟s name was not on it. Kempf responded that

he did not think Wallett should be laid off.

       Finally, Wallett argues that his termination and the hiring of Christensen in the

newly-created position show that Defendants had knowledge of his refusal to participate

in their pay-to-play scheme and chose to replace him with someone more willing to

cooperate with them. Wallett supports this assertion by stating that Brimmeier himself

“personally recruited” a politically-connected replacement who, despite the fact that he

was unqualified for the position, was the only person whose name was ultimately

forwarded to the Commissioners for their consideration. Appellant‟s Br. at 36.

       The inferences that may be drawn from the evidence presented by Wallett, even

when read in the light most favorable to him, do not sustain the conclusion that

Defendants were aware of Wallett‟s supposed lack of support for them. First, the alleged

                                               7
statement by the new Director of Maintenance to Wallett explaining that Wallett was

replaced because Defendants needed someone who would be more cooperative “on the

personnel side” is ambiguous at best. Second, the statements by Facilities engineer Poole

regarding contracts awarded to Orbital are also ambiguous, especially in light of the fact

that Wallett sometimes recommended Orbital for Commission jobs.

       Next, Kempf stated that he was ordered to lower Wallett‟s evaluation rating in two

categories from outstanding to commendable and was questioned about why Wallett was

not on a list of six Facilities Department employees to be terminated. These statements

are most easily explained by Brimmeier and Hatalowich‟s apparent dislike for Wallett

and rather than Wallett‟s refusal to participate in their schemes. Kempf himself could not

remember why Hatolowich4 ordered him to lower Wallett‟s evaluation ratings, even

though Wallett attributed it to retaliation for his refusal to support Defendants.

       Finally, there is nothing in the record regarding the circumstances of Wallett‟s

termination or Christensen‟s hiring that would bolster Wallett‟s assertion that Defendants




4
  During his deposition, Hatalowich invoked his Fifth Amendment right against self-
incrimination and declined to answer any substantive questions. As Wallett notes in his
brief, this court has held that a trial court judge “did not err in admitting as evidence the
depositions of the non-party witnesses who exercised their Fifth Amendment privileges,
nor in permitting the jury to draw adverse inferences therefrom.” RAD Servs., Inc. v.
Aetna Cas. and Surety Co., 808 F.2d 271, 272 (3d Cir. 1986). This precedent, however,
stops far short of requiring the judge in a civil case to instruct the jury to draw an adverse
inference from a non-party witness‟ invocation of the Fifth Amendment. Moreover, even
if we were to draw an adverse inference from Hatalowich‟s refusal to answer questions
during his deposition, there would still not be sufficient evidence upon which to reverse
the District Court‟s judgment.
                                              8
had any knowledge whatsoever that he did not support them.5 It is true that Brimmeier

spoke to Christensen based on a referral from the then Deputy Secretary of the

Pennsylvania Department of General Services and suggested that Christensen apply for

the position. However, the Commissioners made the final decision on whether to hire

Christensen, not Brimmeier. Moreover, Christensen was unquestionably qualified for the

position.

       Although Wallett‟s political patronage discrimination claim relies on allegations

that he experienced adverse employment actions because of his refusal to go along with

the Defendants‟ pay-to-play scheme, Wallett references only one specific contractor –

Orbital, Inc. – whose bids the Defendants allegedly tampered with over Wallett‟s

objection. Nevertheless, and as mentioned above, Wallett actually recommended Orbital

for Commission contracts on various occasions. Moreover, Wallett never complained or

never object to any of the supposed “recommendations” for contractors that came from

Defendants.

       Even when read in the light most favorable to him, Wallett is unable to point to

anything in the record demonstrating that Defendants were aware that he refused to


5
  In fact, there is very little evidence in this record indicating that Wallett engaged in any
constitutionally protected conduct. According to Wallett, his constitutionally protected
conduct was his failure “to support [Defendants] political fundraising efforts” through
their pay-to-play scheme. Appellant‟s Br. at 29. Yet, Wallett himself admits that he
“was never told about these obviously politically fixed contracts . . . because of [his]
straight arrow reputation for professionalism.” Appellant‟s Br. at 15 n.16. Thus, at its
core, Wallett is arguing that he failed to support Defendants in schemes as to which he
had little to no knowledge himself. Defendants do not raise the issue of whether Wallett
engaged in constitutionally protected conduct here, and we, therefore, do not rely on it in
reaching our decision.
                                              9
cooperate with their alleged pay-to-play scheme. Thus, we will affirm the District

Court‟s order granting summary judgment to Defendants on the political patronage

discrimination count of the complaint.

                             B. Pennsylvania Public Policy

       Wallett also argues that he was wrongfully discharged in violation of Pennsylvania

public policy because his termination was caused by Defendants‟ alleged pay-to-play and

influence peddling schemes. The general rule in Pennsylvania is that employment is at-

will unless there is a statutory or contractual provision to the contrary. See Weaver v.

Harpster, 975 A.2d 555, 556 (Pa. 2009). Pennsylvania courts have found an exception to

at-will employment and permitted a common law cause of action for wrongful discharge

only where the termination has “implicated a clear mandate of public policy.” Id. at 564;

see also id. at 569 (“[W]e can only declare the public policy of this Commonwealth

where it is „so obviously for or against public health, safety, morals, or welfare that there

is virtual unanimity of opinion in regard to it.‟” (quoting Mamlin v. Genoe, 17 A.2d 407,

409 (Pa. 1941))).

       The District Court dismissed Wallett‟s public policy claim because it was reluctant

to expand a very narrow exception to Pennsylvania‟s at-will employment doctrine in the

absence of any Pennsylvania case law on point. See Wallett v. Pa. Turnpike Comm’n,

No. 10-2092, 2011 WL 864405, at *5 (M.D. Pa. Mar. 10, 2011). Wallett argues that the

Defendants‟ pay-to-play scheme violated the Commonwealth Procurement Code, which

provides for honesty and integrity by government officials in the hiring of outside

contractors. See 62 Pa. Cons. Stat. Ann. § 2301, et seq.

                                             10
       We agree with the District Court that there is no clear mandate of public policy

that has been violated here. We are not aware of any Pennsylvania case law in which

violation of the Commonwealth Procurement Code provided the basis for an exception to

the at-will employment doctrine. Additionally, even if there were a case on point, there is

scant evidence in this record to support a finding that Defendants‟ conduct violated the

Commonwealth Procurement Code. Therefore, we will affirm the District Court‟s

dismissal of Wallett‟s public policy claim.

                                    III. Conclusion

       For the foregoing reasons, we will affirm the judgments of the District Court.




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