Kimmett V Corbett - Counter Statement To Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Waste Wrongdoing

Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 1 of 89
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS D. KIMMETT
Plaintiff, Civil Action No. 4:08-cv-1496
v. (Judge Jones)
THE PENNSYLVANIA OFFICE (Magistrate Judge Blewitt)

OF THE ATTORNEY GENERAL
ET AL., ELECTRONICALLY FILED
Defendants.
PLAINTIFF’S COUNTERSTATEMENT OF
MATERIAL FACTS IN DISPUTE
Charles T. Kimmett (pro hac vice)

(CKimmett@wiltshiregrannis.com)
Jacinda Lanum (pro hac vice)
(JLanum@wiltshiregrannis.com)
WILTSHIRE & GRANNIS LLP
1200 Eighteenth Street NW, Suite 1200
Washington, DC 20036
(202) 730-1300 (tel)
(202) 730-1301 (fax)
Neil A. Grover (PA 53142)

(groverlaw@ix.netcom.com)
2201 N. 2nd St.
Harrisburg, PA 17110
August 19, 2010 Counsel for Plaintiff Thomas D. Kimmett

1. Plaintiff admits that the facts stated in paragraph 1 are undisputed.
5. Denied. The organizational changes do bear on the case insofar as
they demonstrate that Kimmett’s position as the supervisor of FES’s
Administrative Collections unit (“Collections unit”) was not a position that
involved legal duties and responsibilities. See Pl.’s MSJ SOF ¶ 13, 27, 29;
response to ¶ 58, infra.
8. Plaintiff is without information sufficient to confirm or dispute the
validity of this statement.
10. Denied. The “collection matters” handled by the attorneys on the
legal side of FES (“the Law unit”) are primarily compromises that involve dollar
amounts exceeding $1000. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 38:1-22. The
attorneys in the Law unit do not handle the routine “collections matters” (imputing
claims, dunning letters, responding to debtor’s calls, managing the relationship
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with private collections agencies (“PCAs”) etc.) or the various fund flows that are
dealt with in the Collections unit. Id. 34:22-36:5; Pl.’s MSJ SOF ¶¶ 14-15.
11. Admitted, with the clarification that the Department of Revenue
(“DOR” or “Revenue”) has its own section that administers its involvement in
bankruptcy matters, and DOR decides how involved its unit will be in a
bankruptcy matter vis-à-vis the FES Law unit’s involvement. Pl.’s Opp’n Ex. 65
(Rovelli Dep.) 18:10-22.
12. Denied that this fully describes the tasks of the Collections Unit. In
addition to the tasks described by Defendants, Administrative unit employees also
handle calls from debtors who wish to make payment arrangements for their debt
or who wish to enter into a compromise involving a compromised amount of less
than $1000. See Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 413:2-420:10 (expressing
concerns that, after Kimmett’s departure, PCAs were once again receiving “free
money” because Keiser’s resumption of the practice of referring cases to PCAs
after payment arrangements or compromises had already been reached with
debtors). Employees in the Administrative unit also handled the flow of funds to
and from FES, which amounted to hundreds of millions of dollars. Pl.’s MSJ SOF
¶ 14. Indeed, irregularities in these fund flows in the Collections unit led to an
audit by OAG’s Comptrollers section and the eventual removal of Keiser (at least
in title) from her position as Collections unit supervisor when it was determined
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that supporting financial documentation was missing. Id. ¶¶ 18-19, 23; see also id.
¶¶ 20-21 (Keiser and another employee trashed accounting documentation prior to
the audit).
15. Denied. DOR currently also refers accounts directly to PCAs, which
represents a change in the process that occurred sometime prior to Kimmett’s
arrival at FES. Pl.’s Opp’n Ex. 67 (Ottenberg Dep.) 195:12-196:20. The change
was made because DOR became increasingly concerned about mismanagement
and possible wrongdoing at FES, and the change was accomplished only after
argument between OAG and DOR on the matter. Pl.’s Opp’n Ex. 68 (Kimmett
Dep.) 237:22-239:13; Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 316:8-317:1 (after DOR
investigation revealed that cases sent by DOR to FES were missing, DOR took
their accounts away from FES).
16. Plaintiff admits that the facts stated in paragraph 16 are undisputed,
but adds for sake of completeness that the Collections unit managed the contracts
with PCAs even prior to Kimmett’s arrival at FES. See Pl.’s Opp’n Ex. 69
(Furlong Dep.) 28:4-31:1.
17. Denied. There are certain circumstances in which PCAs are not
entitled to receive a commission. For example, by contract (as revised by
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Kimmett), if the PCA receives a payment within the first fourteen days after a case
is referred to it, it is not entitled to that commission. Pl.’s Opp’n Ex. 69 (Furlong
Dep.) 401:8-403:16; Pl.’s Opp’n Ex. 70 (Gill Dep.) 52:5-53:6. A PCA also is not
supposed to receive a commission payment for debts collected prior to the case
being referred to it, id. 54:16-21, though Kimmett identified multiple cases in
which this had previously occurred. Pl.’s MSJ SOF ¶¶ 58-60; Pl.’s Opp’n Ex. 66
(Bellaman Dep.) 416:1-15. In addition, if a PCA receives a case that is being
appealed by a taxpayer, it knows it must return the case to FES. Pl.’s Opp’n Ex. 66
(Bellaman Dep.) 393:10-19; 530:8-12. And where a PCA was unsuccessful in
obtaining payment during the contractual time period during which it holds the
debt for collection, it is not entitled to a commission. Pl.’s Opp’n Ex. 67
(Ottenberg Dep.) 166:23-167:18; Pl.’s Opp’n Ex. 70 (Gill Dep.) 53:7-20.
18-19. Denied, insofar as “pay directs” is a term that also includes
instances in which a debtor submits payments directly to FES (and not the referring
creditor agency) at a point when the debt had already been referred to a PCA. Pl.’s
Opp’n Ex. 67 (Ottenberg Dep.) 14:23-15:6; Pl.’s Opp’n Ex. 71 (Brandwene Dep.)
42:19-43:9. FES would often receive cash, checks, or money orders from debtors
who were sending payments directly to OAG in satisfaction of debts or as part of a
proposed compromise. See Pl.’s Opp’n Ex. 72.
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20. Denied. There are a number of circumstances in which a PCA would
not be entitled to a commission on a pay direct, even if the PCA had been referred
a case on which a pay direct was received by FES or the creditor agency. See
response to paragraph 17, supra.
21. Plaintiff admits that the facts stated in paragraph 21 are undisputed
insofar as they describe the process that occurs once a determination is made that
the PCA is entitled to a payment on the pay direct. When a pay direct occurs but
falls within one of the various exceptions listed above (see response to paragraph
17, supra), or if a pay direct is received on a case that never was referred to a PCA,
then the PCA is not supposed to receive any commission payment for a pay direct.
See Pl.’s MSJ Ex. 40 (identifying instances in which PCAs wrongly were paid
commissions on pay directs). When commissions are paid to PCAs on pay directs
that should not have earned a commission, the referring agency is still billed for the
commission even though the commission should not have been paid.
23. Denied. Although PCAs, when attempting to collect a debt, may
respond to a debtors request for a compromise, a PCA is not supposed to be the
one to propose a compromise. See Pl.’s Opp’n Ex. 73 (detailing, at length, the rule
that PCAs may not request or suggest a compromise with a debtor prior to
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receiving approval to do so). The debtor, not the PCA, must propose a
compromise.
27. Denied. As a Clerical Supervisor from 1992 or 1993 until she
abruptly quit FES in 2006, Gill supervised approximately four other persons in the
Collections unit. Pl.’s Opp’n Ex. 70 (Gill Dep.) 20:13-21:15. Prior to Gill’s
departure (and until Kimmett’s arrival in late September 2006), Keiser was the
Collections unit supervisor, a position she had held for years. Pl’s Opp’n Ex. 71
(Brandwene Dep.) 24:17-21. Brandwene gave Keiser significant autonomy to run
the Collections unit. Pl’s Opp’n Ex. 71 (Brandwene Dep.) 37:16-38:4. As
Collections unit supervisor, Keiser was Gill’s supervisor. Pl.’s Opp’n Ex. 70 (Gill
Dep.) 12:3-7, 19:11-16. What Gill did on a day-to-day basis was Keiser’s
responsibility. Pl.’s Opp’n Ex. 71 (Brandwene Dep.) 38:15-39:5.
28. Denied. Gill reported to Keiser and Keiser was responsible for Gill’s
activities. See response to paragraph 27, supra. Keiser would review the pay
direct reports prepared by Gill. Pl.’s Opp’n Ex. 71 (Brandwene Dep.) 43:11-44:2.
Gill would discuss discrepancies in the accounts with Keiser. Pl.’s Opp’n Ex. 70
(Gill Dep.) 50:19-51:21. Keiser was responsible for making sure that PCAs were
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not paid commissions for debts when payment had been received either before the
PCAs’ holding period began or after it expired. Id. 56:4-7.
30. Denied. The Comptroller’s office noticed fund flow irregularities in
the Collections unit, which lead to an audit of the Collections unit by the
Comptroller’s office. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 62:5-65:4. The
Comptroller’s office had never previously audited FES. Id. 84:15-85:20.
31. Denied. Keiser did not attempt to “pick up Gill’s work” but instead
took steps to render information documenting the pay-direct fund flows
inaccessible. Pl.’s MSJ SOF ¶¶ 20-21. On the eve of the Comptroller’s audit,
Keiser, with the assistance of Mark Santanna, a PCA employee who worked at
FES’s offices, trashed the backup documentation relating to the pay direct fund
flows that Gill had maintained in FES. Id. Keiser also switched Gill’s computer
with that of another employee so that Ottenberg was unable to find any electronic
documents relating to the pay direct fund flows. Id.; Pl.’s Opp’n Ex. 66 (Bellaman
Dep.) 217:8-17. It is likely that Keiser did this because she was concerned that the
fund flow documents would reveal that she had been moving cases to PCAs, most
often Linebarger (f/k/a Scoliere), immediately prior to or shortly after payment had
already been received from the debtor. Id. 415:9-419:2.
32. Defendants did not include a paragraph 32.
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33. Denied. The Comptroller’s office got involved because, shortly after
Gill abruptly resigned, Sherri Phillips, OAG’s Director of Management Services,
reported to Rovelli problems with the usual fund flow process in FES, which
specifically had to do with FES recovering from its client agencies money that had
been or was about to be paid out to collections agencies. Pl.’s Opp’n Ex. 65
(Rovelli Dep.) 62:5-63:9.
34. Denied. Keiser did not cooperate with Ottenberg in that effort. Pl.’s
Opp’n Ex. 68 (Kimmett Dep.) 218:17-219:5.
35. Denied. The issues that came to light after Gill’s departure were not
“straightened out.” Because Keiser had trashed the backup documentation (see
response to paragraph 31, supra), OAG had to take the unprecedented step of
paying out settlement payments to Linebarger and other PCAs because they had no
ability to confirm or dispute pay direct commission payments that the PCAs
asserted were owed to them. Pl.’s Opp’n Ex. 74 (Keiser Dep.) 149:4-151:7; Pl.’s
Opp’n Ex. 75. This needed to be done to reset the balance due to zero. Pl.’s
Opp’n Ex. 66 (Bellaman Dep.) 65:25-66:11.
36-37. Denied. Once Kimmett was at FES, Ottenberg was rarely, if
ever, at FES’s offices. Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 438:2-10. Subsequent
to Kimmett’s arrival, Ottenberg, at Kimmett’s request and direction, ran various
programs that would identify commission payments that should not have been
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made to PCAs. See Pl.’s MSJ Ex. 40 (Ottenberg ran program confirming that
Kimmett’s hunch about overpayments was correct); Pl.’s Opp’n Ex. 66 (Bellaman
Dep.) 293:9-19, 394:3-15, 439:6-21 (exceptions report created by Ottenberg for
Kimmett); Pl.’s MSJ Ex. 41 (monthly report identifying commissions that should
not be paid); Pl.’s Opp’n Ex. 76 (Burman Dep.) 171:22-173:2 (monthly report run
at Kimmett’s request).
39. Denied. Ottenberg main concern was not computer system
inadequacies, but that Keiser and Brandwene had exhibited “sheer and utter
incompetence” and had grossly mismanaged FES and the Collections unit. Pl.’s
MSJ SOF ¶¶ 53-54; Pl.s’ MSJ Ex. 33; Pl’s MSJ Ex. 27; Pl.’s Opp’n Ex. 67
(Ottenberg Dep.) 331:18-334:4.
41. Denied. One of the main reasons that Ottenberg felt the computer
system should be replaced was because manual inputs were not subject to
monitoring or tracking. Pl.’s Opp’n Ex. 143 (“I’m seeing too many manual
processes with no monitoring or tracking tools to assist them.”). Later, Kimmett,
acting on information provided by DOR employees, would determine that many
cases were being manually and improperly assigned by Keiser to PCAs
immediately prior to or after the debtor had already made payment, resulting in
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unearned commissions being paid to PCAs, particularly Linebarger. See response
to paragraph 47, infra.
45. Denied. Although Ottenberg claims to have raised a concern about
the PCA’s non-payment of interest, nothing was done to remedy that situation or to
enforce that contractual provision until it was addressed by Kimmett. See Pl.’s
MSJ SOF ¶ 61. Even then, Kimmett’s superiors refused Kimmett’s request to seek
years of previously unpaid interest payments from the PCAs. Id.; Pl.’s MSJ Ex.
44.
46. Denied. Although Ottenberg claims to have raised this concern, no
action was taken until such time as Kimmett took steps to create an RFI to seek a
firm to perform an audit at the PCAs’ expense, as provided by their contracts. Pl.’s
Opp’n Ex. 77; Pl.’s Opp’n Ex. 78 (Roman Dep.) 327:16-330:6; Pl.’s Opp’n Ex. 79.
47. Denied. Ottenberg’s concern was whether or not PCAs were self-
auditing the specific contractual requirement that no commissions are paid after the
PCAs’ holding period expired; he expressed no opinion as to whether commissions
had in fact ever been paid improperly. Pl.’s Opp’n Ex. 67 (Ottenberg Dep.) 28:19-
30:5. After Kimmett started at FES, Kimmett learned from Revenue employees
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that cases were being manually and improperly routed to certain favored PCAs and
that commissions were being paid on cases that had already received or were about
to receive payment prior to their referral to the PCA. Pl.’s MSJ SOF ¶ 40; see also
Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 415:9-419:2 (testifying that Keiser engaged in
this practice prior to Kimmett’s arrival at FES). Kimmett subsequently directed
Ottenberg to run a “exceptions report” to determine whether commissions had in
fact wrongly been paid to PCAs for money received outside – either before or after
– their holding periods. Pl.’s MSJ Ex. 40; Pl.’s Opp’n Ex. 66 (Bellaman Dep.)
394:3-15 (“I said, Tom, why are we paying commission on these accounts when
[the PCAs] didn’t have the account and it was paid prior to the account being even
placed with the collection agency. And he says, well, how is that happening. . . .
And that’s when he [Kimmett] contacted Doug [Ottenberg] to get that exceptions
report started”). Kimmett’s team verified the information in the exceptions report.
Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 454:4-16; Pl.’s Opp’n Ex. 66 (Bellaman Dep.)
438:21-445:21. Furlong also confirmed that cases were being referred to
collections agencies after “big money” had already been collected. See Pl.’s Opp’n
Ex. 80 at TDK 0002007; Pl.’s Opp’n Ex. 69 (Furlong Dep.) 446:16-449:13.
Rovelli and Phillips, however, instructed Kimmett not to recoup the commission
money that the PCAs should not have received. Pl.’s Opp’n Ex. 68 (Kimmett
Dep.) 457:5-458:7.
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48. Denied. In the wake of Gill’s departure, Rovelli came to the
realization that Keiser, the then-supervisor of Administrative collections, was “a
major issue and a major problem,” leading him to replace her. Pl.’s Opp’n Ex. 65
(Rovelli Dep.) 96:7-98:20; 254:5-8.
49. Denied. Rovelli wanted to hire someone with a financial background
as the next Collections unit supervisor. Pl.’s MSJ SOF ¶ 27.
50. Denied. Nutt asked Rovelli to consider Kimmett for a position in
OAG, and Kimmett was initially interviewed for a litigation position. Pl.’s Opp’n
Ex. 65 (Rovelli Dep.) 69:18-71:3. In Rovelli’s opinion, Kimmett did not have
sufficient litigation experience. Id. 111:22-112:9.
54. Denied. Kimmett, an attorney and an accountant, was hired to
become the “new Jill Keiser,” i.e. the new Collections unit supervisor. Pl.’s Opp’n
Ex. 71 (Brandwene Dep.) 62:11-63:15; see Pl.’s Opp’n Ex. 81 (Ryan Dep.)
109:17-111:9 (Kimmett replaced Keiser). Although the Collections unit supervisor
was not an attorney position, Kimmett, who had been in Revenue for the past 10
years in an attorney position, was to be given the classification “Deputy Attorney
General IV.” See response to ¶¶ 58, 59 infra.
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56-57. Denied. Rovelli made it clear to Kimmett, when inducing
Kimmett to take the position at FES, that the Chief position would be a likely
promotion for Kimmett. Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 147:10-149:15.
Rovelli informed Kimmett that the Collections unit supervisor position “brought
with it some genuine opportunities” because Brandwene was nearing retirement.
Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 134:15-135:13. Ryan recalled that, when
Rovelli hired Kimmett, Kimmett was in line for promotion to the position of Chief
of FES. Pl.’s Opp’n Ex. 81 (Ryan Dep.) 166:3-167:4. Once he was hired,
Brandwene had conversations with Kimmett about Kimmett needing to get a feel
for the “chief chair.” Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 148:5-11.
58. Denied. Although Kimmett was categorized as Deputy Attorney
General IV (“DAG IV”), Kimmett’s position as the Collections unit supervisor did
not involve legal work (other than to be aware of the laws relevant to the
Collections unit, as was required of all Collection unit employees (see, e.g., Pl.’s
Opp’n Ex. 82), and did not involve supervision over any of the attorneys in the
Law unit of FES. See Pl.’s MSJ SOF ¶ 29. In fact, neither Kimmett’s predecessor
in that position, Keiser, nor his successor, Ottenberg, are lawyers. See Pl.’s Opp’n
Ex. 74 (Keiser Dep.) 6:16-7:3; Pl.’s Opp’n Ex. 67 (Ottenberg Dep.) 13:3-14:4.
After Kimmett was terminated from that position, the entire Collections unit was
13
reassigned from the law sections of OAG to the non-law Comptroller’s office
section. Pl.’s MSJ SOF ¶ 13. Though Kimmett was categorized as DAG IV for
pay purposes, his position as Collections unit supervisor was not, has never been,
and was never intended to be a legal position per se.
59. Denied. Exhibit 2 to Bruce Sarteschi’s Declaration (hereinafter
“DAG IV Classification” or “Classification”) does not and is not intended to
represent Kimmett’s job duties as Collection unit supervisor. The record – most
notably the testimony of Defendant Rovelli – demonstrates that Kimmett’s duties
and responsibilities as FES’s Collections unit supervisor were not and were never
intended to be those included on the Classification’s laundry list. See Pl.’s MSJ
SOF ¶¶ 27-32.
Kimmett’s tasks and responsibilities included managing administrative
collections, managing fund flows, and system redesign. Pl.’s MSJ SOF ¶ 27.
Kimmett’s 2006-07 performance evaluation further demonstrated that Kimmett’s
duties did not involve the long list of legal responsibilities in the Classification, but
were in fact “primarily administrative.” Pl.’s Opp’n Ex. 83 at 4503; see also
Defs.’ MSJ SOF ¶ 123. And though Defendants assert that the Classification
shows “Senior Deputy Attorneys General perform highly responsible professional
legal work,” Defs.’ MSJ Ex. 27 (Sarteschi Decl. ¶ 8), the category on Kimmett’s
evaluations that included “Effectively communicates legal advice . . . in writing”
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and “orally” were marked with an “X” signifying that such “[s]kill category [was]
not relevant to the attorney’s work assignments.” See response to ¶ 80, supra
(citing Pl.’s Opp’n Ex. 83 (2006-07 evaluation) at 4501 (items I.F & I.G); Pl’s
MSJ Ex. 63 (2007-08 evaluation) at 4474 (items I.F & I.G); Pl.’s Opp’n Ex. 65
(Rovelli Dep.) 390:3-6).
The DAG IV Classification is not a list of Kimmett’s job responsibilities as
Collections unit supervisor. In fact, the bulk of that Classification provides
“Examples of Work” in a manner designed to describe all of the disparate
responsibilities and functions that may be performed by any specific person (but
certainly not all persons) holding such position across more than twenty different
separate and distinct OAG units. See Pl.’s MSJ Ex. 4. The Classification is a
catch-all designed to include at least some description of the functions performed
by each employee categorized as DAG IV, but is not meant to suggest that each
DAG IV performs all of the listed examples of work.
Rovelli’s testimony on Kimmett’s job duties and responsibilities differs
markedly from those in the Classification. Though Kimmett initially was
interviewed for a litigation position at OAG, Rovelli did not believe Kimmett
possessed sufficient experience to hold that position. Pl.’s Opp’n Ex. 65 (Rovelli
Dep.) 111:22-112:9. As Collections unit supervisor, Kimmett was not expected to,
and did not, “prepare[ ], tr[y], and argue[ ] cases in various courts in the state and
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in federal district courts.” See Defs.’ MSJ Ex. 27 (Sarteschi Decl. Ex. 2 at 1). Nor
did Kimmett “prepare[ ] pleadings, briefs, and allied court papers in connection
with suits, trials, hearings or other court proceedings. Id. And Defendants
acknowledge that Kimmett did not “supervise[ ] junior” (or indeed any) “attorneys
in specific matters.”1 Id. Plaintiff was given the title “Deputy Attorney General
IV” for purposes of determining his salary range, not because of any expectation
that he would perform the litany of functions described in the DAG IV
Classification. Because Rovelli recognized that there was little “genuinely legal
work in administrative collections,” that it functions as an “assembly line,” and
that it is a “money operation,” he expected that after Kimmett “improved the
systems” in FES, he would move Kimmett into the Law unit to “take on the same
functions as the other attorneys.” Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 73:4-74:8.
His eyes, however “were on the immediate remedy,” which was to hire Kimmett, a
numbers guy, as the new Collections unit supervisor. Id. 74:7-8.
1
In fact, excluding the catchall “performs related work as required,” Kimmett’s job
duties as Collections unit supervisor involved only part of three of the thirteen
exemplar functions listed in the exhibit: supervising clerical staff (part of example
6), examining contracts (part of example 8), and answering routine correspondence
(item 12). Defs.’ MSJ Ex. 27 (Sarteschi Decl. Ex. 2 at 1). Kimmett did not (and
was never expected to) act as a legal expert (4), draft formal opinions (7), examine
abstract of titles (9), review criminal investigative reports (10), or direct criminal
investigations and participate in same (11). Id.; see Pl.’s MSJ SOF ¶¶ 27-31.
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63. Admitted that Kimmett was supposed to replace Keiser, but denied
insofar as, although Keiser was supposed to report to Kimmett, she refused to do
so, and she refused to relinquish her role as a supervisor to the staff. See Pl’s MSJ
SOF Ex. 11 (Kimmett Decl.) ¶¶ 12-13; Ottenberg Dep. 328:6-330:9 (Ottenberg
testified he did not realize Kimmett was the Collections unit supervisor and that, in
2007, he was advocating for Kimmett to take over Keiser’s role as supervisor).
65. Denied. See response to ¶ 63, supra.
67. Denied. Plaintiff was to replace Keiser as Collections unit supervisor,
to manage administrative collections, and to spend time on systems redesign. Pl’s
MSJ SOF ¶ 27; Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 140:19-22; 315:6-7. Kimmett
was not expected to audit FES; auditing functions are provided by OAG’s
Comptroller’s office. Pl.’s MSJ SOF ¶ 28. Kimmett was expected to utilize the
findings from the ongoing Comptroller’s audit to implement improvements in
FES’s fund flow systems. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 140:12-142:2.
Nor was Kimmett expected to perform any investigations into waste, gross
mismanagement, or wrongdoing that may have occurred in FES, OAG, or DOR.
Pl’s MSJ SOF ¶ 30; Rovelli Dep. 138:14-139:16. OAG has a separate Internal
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Affairs unit responsible for internal investigations into wrongdoing, personnel
issues, and violations of office policy. Pl’s MSJ SOF ¶ 30. And although
Kimmett’s evaluation form included the review category “Exercises sound
judgment in the formulation of investigative goals and plans,” that category was
marked with an “X” meaning it was “not relevant to the attorney’s work
assignment.” Pl.’s Opp’n Ex. 83 at 4502 (item II.A); Pl’s MSJ Ex. 63 at 4475
(item II.A); Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 390:3-6.
68. Admitted, with the clarification that Kimmett met stiff resistance to
the various processes and procedures that he was implementing, especially in the
area of compromises. Pl’s MSJ SOF ¶¶ 47-48; Pl’s MSJ Ex. 11 (Kimmett Decl.)
¶¶ 10-21; Pl’s MSJ Ex. 56 (Feb. 27, 2008 Memorandum from Kimmett to Roman
defending compromise review procedures).
69. Denied, because although Kimmett wanted to take actions to obtain
PCA compliance with the terms of their contracts with OAG, his superiors refused
his requests to do so. See response to ¶¶ 45 and 47, supra.
70. Admitted, with the clarification that in redrafting the contracts,
Kimmett experienced resistance from the PCAs, especially regarding the rates.
Pl.’s Opp’n Ex. 69 (Furlong Dep.) 399:22-400:22. Although DOR knew as early
as April 2007 that the rates would be reduced, DOR’s Furlong delayed reducing
the commission rates on DOR referrals to PCAs for months after the new PCA
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contracts with reduced rates had been put into effect. Pl.’s Opp’n Ex. 69 (Furlong
Dep.) 250:123-251:15, 393:4-17, 397:9-399:5.
72. Admitted that, after Kimmett started at FES, he and Bellaman would
review and sign off on the commission payments made for pay-directs. Pl.’s
Opp’n Ex. 68 (Kimmett Dep.) 127:11-129:25. Kimmett instructed Ottenberg to
run certain programs to help ensure that commissions were not paid on cases where
payments were received outside the PCAs’ holding periods. See response to ¶ 47,
supra. Diane Burman, who worked closely with Kimmett, drafted at Kimmett’s
request a list of recommendations relating to the payment of pay-direct
commissions. Pl.’s Opp’n Ex. 76 (Burman Dep.) 153:14-162:16; Pl.’s Opp’n Ex.
84. The PCAs would often question the decision to withhold such unearned
commissions from them. Burman Dep. 174:1-14.
73. Denied insofar as Kimmett was met with stiff resistance by Roman,
Furlong, representatives of the PCAs, and others when he and his team attempted
to apply the developed criteria and procedures for review of compromises. See
Pl’s MSJ SOF ¶ 77; Pl’s MSJ Ex. 56; response to ¶ 128, infra.
74. Admitted. See also response to ¶ 128, infra.
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76-77. Denied, insofar as the statement ignores that Kimmett also
informed many of his contacts at other referring agencies of the waste, gross
mismanagement, and wrongdoing he had discovered in both OAG and DOR. Pl’s
MSJ SOF ¶ 79; Pl’s MSJ Ex. 11 (Kimmett Decl.) ¶¶ 6-7.
80. Denied. As both Kimmett’s 2006-07 and 2007-08 performance
evaluations indicated, Kimmett did not communicate legal advice and opinions as
part of his duties as Collections unit supervisor. Pl.’s Opp’n Ex. 83 (2006-07
evaluation) at 4501 (items I.F & I.G); Pl’s MSJ Ex. 63 (2007-08 evaluation) at
4474 (items I.F & I.G). The categories on Kimmett’s evaluation that included
“Effectively communicates legal advice . . . in writing” and “Effectively
communicates legal advice … orally” were marked with “X’s” signifying that such
“[s]kill category [was] not relevant to the attorney’s work assignments.” Pl.’s
Opp’n Ex. 83 at 4501; id at 4500 (defining “X”) (emphasis added); Pl’s MSJ Ex.
63 at 4474; id at 4473 (defining X) (emphasis added); see also Pl.’s Opp’n Ex. 65
(Rovelli Dep.) 390:3-6 (Kimmett “did received some X’s, but those mean the
category is not relevant to the attorney’s work assignment.”).
Nearly all of Kimmett’s written reports of waste, wrongdoing, and gross
mismanagement – reports made outside the scope of his job duties – were not legal
20
opinions but factual recitations of the serious problems he had discovered. See,
e.g., Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 374:12-375:1; Pl.’s MSJ Ex. 25; Pl.’s MSJ
Ex. 26; Pl.’s MSJ Ex. 31; Pl.’s MSJ Ex. 32; Pl.’s MSJ Ex. 45; Pl.’s MSJ Ex. 46;
Pl.’s MSJ Ex. 47; Pl.’s MSJ Ex. 48; Pl.’s MSJ Ex. 53; Pl.’s MSJ Ex. 56; Pl.’s
Opp’n Ex. 79; Pl.’s Opp’n Ex. 85; Pl.’s Opp’n Ex. 86; Pl.’s Opp’n Ex. 87; Pl.’s
Opp’n Ex. 88; Pl.’s Opp’n Ex. 89; Pl.’s Opp’n Ex. 90; Pl.’s Opp’n 142.
82. Denied. Kimmett communicated the waste, wrongdoing, and gross
mismanagement he had discovered to persons such as Roman and Rovelli within
his chain of command; to Ryan, who was a few rungs up the chain of command
(leapfrogging Roman and Rovelli); to Nutt, Ottenberg, and Bianco, who were all
completely outside his chain of command in OAG; to Furlong, Cruz, and other
Revenue employees; to employees of other Commonwealth agencies; to persons
who do not work for the Commonwealth; to federal agents; and to his attorneys,
who filed suit on his behalf. See Pl.’s MSJ SOF ¶¶ 64, 79-86; Pl.’s MSJ Ex. 11
(Kimmett Decl.) ¶¶ 5-9, 27-32. Kimmett’s communications dealt not only with
problems within FES, but also problems he had discovered in DOR’s operations.
Pl.’s MSJ SOF ¶¶ 58-78.
83. Denied, insofar Kimmett informed not only Brandwene, but also
Ottenberg, Rovelli, Ryan, Nutt, Hudic, Kane, Brandler, and the FBI agent with
21
whom he has had several meetings, of the wrongdoing that was alleged by
Revenue employees. See response to ¶ 82, supra.
89. Denied. After confirming for Kimmett that the issues reported to him
by Revenue involved wrongdoing and malfeasance, Furlong told Kimmett that
Kimmett would not be able to find documentary evidence of that wrongdoing in
FES’s computer system or records. Pl.’s MSJ SOF ¶ 41. Furlong said he
possessed records of the wrongdoing that the Revenue employees had described,
but when Kimmett pressed to get that information, Furlong subsequently informed
Kimmett that a deal had been reached between higher-ups at OAG and DOR that
DOR would not provide Kimmett with any information damaging to OAG
employees. Pl.’s MSJ SOF ¶ 45. Upon learning that Furlong would not provide
the documentation, Kimmett informed Ottenberg so that the Comptroller’s office
would know that the information was with DOR, but was not going to be
forthcoming voluntarily. Pl.’s MSJ Ex. 31.
22
90. Denied, insofar as Kimmett also communicated the problems and
issues he had discovered with Hudic and Kane (and others) in the late spring of
2008, at which time he had found more instances of waste, gross mismanagement,
and wrongdoing in both FES and DOR. See Pl.’s MSJ SOF ¶¶ 79-86
(communications); id. ¶¶ 29-33 (problems discovered at DOR);
91. Admitted, with the clarification that Kimmett also reported
wrongdoing in DOR to those individuals.
92. Admitted that Kimmett told a number of people, including Diane
Burman, various Revenue employees, and Tom Armstrong, a policy director for
Governor Ridge who worked out of Revenue who now works for DCED, about his
communications with persons outside of OAG regarding the problems at FES.
Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 198:11-200:18.
93. Denied. There is evidence that Defendants knew that Kimmett was
communicating with persons outside of OAG, including but not limited to Hudic
and Kane, about his findings of waste, wrongdoing, and gross mismanagement in
OAG and DOR. See response to paragraphs 138-39 and 141-42, supra.
94. Denied to the extent that, by the time Kimmett began working at FES,
Ottenberg was no longer working out of FES’s offices on FES-related matters. See
Bellaman Dep. 438:2-10. Ottenberg gave Kimmett background information about
the FES operation and explained what he had done after Gill’s resignation.
23
Kimmett Dep. 219:9-15. Because of his IT knowledge, Kimmett would utilize
Ottenberg to do things like run reports for him. Kimmett Dep. 219:11-22; Pl.’s
MSJ Ex. 40; Bellaman Dep. 293:6-19. Kimmett would ask Ottenberg and Bianco
to run reports dealing with certain issues or areas with which Kimmett had
identified potential problems. Kimmett Dep. 220:3-220:18.
97-98. Denied. Because of email traffic between Ottenberg and
Phillips discussing the issues Kimmett was discovering in FES, see Pl.’s MSJ Ex.
37, Phillips requested a meeting in early January 2007. Pl.’s Opp’n Ex. 68
(Kimmett Dep.) 225:21-226:6. Kimmett and Ottenberg put together the report to
be presented at the meeting. Id. 226:22-227:6. At the meeting, Rovelli,
Brandwene, Phillips, and Bianco, were told of the “issues that were starting to arise
in the review of FES.” Id. 224:4-12. Kimmett and Ottenberg decided that
Ottenberg should take the lead in presenting at the meeting because the
presentation would “put [Kimmett] in an uncomfortable position with Steve
[Brandwene] and Lou [Rovelli].” Id. 227:18-228:4. In fact, both Ottenberg and
Bianco had warned Kimmett that “there’s a good possibility if [he] start[ed] to
pursue these issues [he was] going to get fired.” Id. 226:22-227:12; see also id.
227:24-228:17.
24
100. Denied. Rovelli was upset with Kimmett when he saw that the initial
draft of the Plan of Action indicated wrongdoing had occurred in FES. See Pl.’s
MSJ SOF ¶ 57; Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 258:10-22 (“Lou started off the
meeting by saying, ‘I read this draft and you’re telling me that somebody here is a
crook.’”) Rovelli ordered Kimmett to revise the Plan of Action to eliminate those
statements. Pl.’s MSJ SOF ¶ 57; Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 259:14-
260:10. At that meeting, Rovelli talked for 35 minutes straight, while Kimmett
just listened because he was afraid he was going to be fired. Pl.’s Opp’n Ex. 68
(Kimmett Dep.) 258:23-259:2; 260:14-18.
101. Admitted, with the clarification that, insofar as Kimmett would
discover that the issue regarding the inventory discrepancies was “much worse
than it appears here [in the Plan of Action].” Pl.’s Opp’n Ex. 68 (Kimmett Dep.)
251:13-21; see Pl.’s Opp’n Ex. 91 (indicating discrepancy of approximately 2000
cases between DOR’s inventory records and FES’s inventory records). He worked
toward reconciling those discrepancies, but met resistance in his attempts to do so.
Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 375:3-13; see also Pl.’s Opp’n Ex. 66
(Bellaman Dep.) 342:4-344:3 (describing Roman’s interference with Kimmett’s
project to reconcile discrepancies in agencies’ case inventories).
25
102. Denied. Throughout his tenure at FES and on multiple subsequent
occasions after he had drafted his Plan of Action, Kimmett or members of his team
discovered thousands of cases that had never been assigned or that had been
abandoned in an incomplete state. See Pl.’s Opp’n Ex. 92; See Pl.’s Opp’n Ex. 68
(Kimmett Dep.) 392:20-23 (240 cases found in Keiser’s office). Kimmett even
discovered cases in which payments had been received, but where there was no
record of what happened to those payments. See Pl’s MSJ SOF ¶ 66; Pl.’s Opp’n
Ex. 90 (Furlong Dep. Ex. 39) at 000036; Pl.’s Opp’n Ex. 69 (Furlong Dep.)
470:17-473:12. Kimmett met resistance, Pl.’s Opp’n Ex. 68 (Kimmett Dep.)
375:3-13, and he was criticized by Roman for his focus on resolving such issues.
Pl.’s Opp’n Ex. 78 (Roman Dep.) 537:8-539:4.
103. Denied. Kimmett had serious concerns relating to his review of the
PennDOT audit and the request that he “sign off” on the audit response. See Pl.’s
MSJ SOF ¶¶ 64-65. After reporting his concerns, which included concerns of
potential wrongdoing, Roman told Kimmett to “get past” the fraud issue. Pl.’s
MSJ Ex. 45; Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 115:2-13 (Roman told Kimmett to
“get over” the fraud issue and to stop identifying problems and issues); Pl.’s Opp’n
Ex. 78 (Roman Dep.) 274:9-15.
104. Admitted that Kimmett attempted put in safeguards to stop subsequent
misconduct, but denied insofar as Kimmett was never able to determine why a
26
massive amount of cases had been referred manually by Keiser to Linebarger.
Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 296:6-299:18; Pl.’s Opp’n Ex. 66 (Bellaman
Dep.) 417:23-418:23. Although this may have been fraud, Kimmett was told by
Roman to “get past” the fraud and was told to stop identifying problems and issues.
Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 115:2-13; Pl.’s Opp’n Ex. 78 (Roman Dep.)
274:9-15.
105. Denied. Kimmett determined that PCA employees working on-site at
OAG were routinely and automatically granting their employer PCAs extensions
on cases beyond the period provided in the contract. Pl.’s Opp’n Ex. 68 (Kimmett
Dep.) 416:3-25. Kimmett discovered that the PCA employees were granting
extensions even if there had been no activity on the case. Id. 417:1-5. In essence,
the PCAs were granting themselves thousands of unilateral extensions. Id. 417:6-
418:8.
106. Admitted that Kimmett attempted to institute such safeguards;
specifically, Kimmett wanted Burman to be responsible for any extensions granted
to PCAs because Santanna, who was handling that issue, previously had worked
for Linebarger f/k/a Scoliere (Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 330:18-21), and
Kimmett wanted someone he trusted involved in granting extensions. Pl.’s Opp’n
Ex. 68 (Kimmett Dep.) 419:2-13. Denied insofar as PCAs continued to circumvent
27
all safeguards instituted by Kimmett by going directly to Keiser. Pl.’s Opp’n Ex.
66 (Bellaman Dep.) 349:15-350:23, 498:18-500:12.
107. Denied, because although Kimmett identified that the PCAs had not
been making interest payments for years, Rovelli (with Roman’s assent) told
Kimmett that he should not attempt to recover any of the unpaid interest, but seek
interest only on a going forward basis. Pl.’s MSJ Ex. 44; See Pl.’s MSJ SOF ¶ 62-
63. Similarly, although Kimmett sought to recoup the hundreds of thousands of
dollars in commissions that had been paid to PCAs for payments received outside
the PCAs’ contractual holding periods (both before such periods began and after
they had expired), Rovelli and Phillips told Kimmett not to seek to recoup those
commissions that had been improperly paid. Pl.’s Opp’n Ex. 68 (Kimmett Dep.)
457:5-458:22, 459:15-18.
108. Denied because the issues relating to the PCA employees working on-
site at FES were greater than simply “accountability.” Kimmett had determined
that PCA employees were routinely granting extensions to the PCAs for whom
they worked without justification. See response to paragraph 105, supra. In
addition, Kimmett learned that the on-site PCA employees would keep tabs on
activity occurring in specific debtors’ cases that had previously been assigned to
their PCA, which violated their confidentiality agreements. Pl.’s Opp’n Ex. 93.
28
111. Admitted that Kimmett attempted to implement procedures and
safeguards to prevent commissions from being wrongly paid on pay-directs,
including having reports run that identified instances where commissions were
paid before a PCA’s holding period began or after the holding period expired. See
response to ¶ 47, supra. Denied insofar as Kimmett’s efforts were met with
resistance by PCAs, Roman, and Furlong. For example, in one instance Kimmett’s
procedures identified a pay-direct commission payment that was scheduled to be
paid to the Linebarger PCA, despite the fact that the payment was received because
of a litigation settlement obtained by OAG. Pl.’s MSJ SOF ¶ 78. Although
Furlong initially agreed with Kimmett’s action withholding that commission, Pl.’s
Opp’n Ex. 69 (Furlong Dep.) 450:4-452:16, in response to a “threat” from the
Linebarger PCA to go to the Attorney General, Furlong, Coyne, and Roman
overruled Kimmett and paid out a commission of over $300,000. Pl.’s MSJ SOF ¶
78; Pl.’s Opp’n Ex. 69 (Furlong Dep.) 454:21-461:19. Linebarger was paid this
very large commission despite it knowing from the outset that the case was on
appeal and being resolved through litigation. Pl.’s MSJ SOF ¶ 78; Pl.’s Opp’n Ex.
69 (Furlong Dep.) 459:6-461:19; Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 533:8-540:2;
Pl.’s MSJ Ex. 61.
29
112. Admitted that Kimmett wanted to recoup the commissions, but denied
insofar as he was instructed not to do so by Rovelli and Phillips. Pl.’s Opp’n Ex.
68 (Kimmett Dep.) 457:5-458:22, 459:15-18. Other attempts by Kimmett to
prevent payment of commissions that should not have been paid were overruled by
Roman at the behest of Coyne and Furlong. See response to ¶ 111, supra; Pl.’s
MSJ SOF ¶ 78.
113. Denied. Kimmett met with the referring agencies to get their input
regarding any issues or problems they had with FES and to ask them how FES
could do a better job for them. Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 158:15-159:4.
114. Denied insofar as Defendants fault Kimmett for the failure to
implement this solution. No one implemented Kimmett’s proposed solution
relating the FES attorneys’ caseload, despite its serious nature. See Pl.’s Opp’n Ex.
94 (informing Kimmett that open attorney cases dated back as much as 20 years,
despite Brandwene “direct[ing] a cleanup before he left” and total dollar amount
outstanding in cases that attorneys from FES’s Law unit and regional offices were
sitting on was over $122 million); See Pl.’s Opp’n Ex. 67 (Ottenberg Dep.) 249:18-
25 (although one of Kimmett’s proposed solutions in action plan was to clean this
up, “nothing’s being changed, … all these accounts remain out there, and the
actions aren’t being taken on them”). Kimmett, however, was powerless to
implement this solution because his duties and responsibilities did not include any
30
oversight of the FES attorneys or, indeed, work of any kind in FES’s Law unit.
Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 252:2-11 (Brandwene and Ottenberg told
Kimmett not to touch this issue; Kimmett had no supervisory authority over
attorneys in FES); Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 312:18-313:1; Pl.’s Opp’n Ex.
78 (Roman Dep.) 44:21-45:21; Pl.’s MSJ SOF ¶ 29. Roman or Rovelli could have
implemented this solution, as both had authority over the FES attorneys, but
neither was interested in doing so. Indeed, insofar as any of Kimmett’s proposed
solutions were implemented, they were implemented without the support or
assistance of Rovelli and Roman, who resisted most of his efforts and his proposed
solutions. Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 328:7-16, 375:3-13, 506:13-18; Pl.’s
MSJ SOF ¶ 47 (citing Pl.’s MSJ Ex. 11 (Kimmett Decl.) ¶¶ 10-21).
116. Admitted that Defendant Rovelli passed over Kimmett to appoint
Roman, who had no prior role in FES and who Rovelli had re-hired into OAG’s
Tax Litigation Section as a staff attorney after Roman had been terminated from a
private practice position. See Pl.’s Opp’n Ex. 78 (Roman Dep.) 14:17-18:20; Pl.’s
Opp’n Ex. 65 (Rovelli Dep.) 431:7-433:20. When informing Kimmett of this
decision, Rovelli explained to Kimmett that Kimmett’s reports about prior
wrongdoing in FES were inconsistent with OAG’s “culture.” Pl.’s MSJ SOF ¶ 47;
Pl.’s MSJ Ex. 11 (Kimmett Decl.) ¶¶ 14-15.
31
117. See response to paragraph 116 above.
119. Admitted that Kimmett provided the Plan of Action to Roman very
early in Roman’s tenure as Chief, but Roman indicated no interest in the document
to Kimmett, did not inquire of Kimmett about any specifics detailed in the
document, and requested a status update about the Plan of Action only after
Kimmett filed suit. See Pl.’s MSJ Ex. 11 ¶ 16; Pl.’s Opp’n Ex. 95.
120. Denied. Kimmett provided two memoranda to Roman (and he sent
the more detailed one to Bianco also) describing his opposition to signing off on
the response to PennDOT’s audit of FES without qualification and pointing out
specific instances of serious problems he had discovered in FES. Pl.’s MSJ SOF ¶
64; Pl.’s Opp’n Ex. 96 at TDK 002464; id. at TDK 002465-67. Kimmett
expressed his opinion to Roman, Ottenberg, and Bianco that it would be
inappropriate to provide an unqualified signature to the PennDOT audit because of
the “significant deficiencies in the operation” that he had discovered. See Pl.’s
MSJ Ex. 45 at 2. In response, Roman became annoyed with Kimmett and told
Kimmett that he “needed to get past the wrongdoing that has occurred.” Id. at 1;
see also Pl.’s Opp’n Ex. 78 (Roman Dep.) 274:9-15 (Roman acknowledges that, at
some point, he told Kimmett to “get past this fraud issue”); Pl.’s MSJ Ex. 11
(Kimmett Decl.) ¶ 17. Ottenberg acknowledged to Bianco that he and Kimmett
32
had discovered “gross mismanagement” at FES, though Ottenberg did not believe
that it reached the level of fraud. Pl.’s MSJ Ex. 27 at 1.
In reference to Kimmett’s concerns about providing an unqualified signature
on the PennDOT audit, Ottenberg informed Bianco that Kimmett and he had
discovered “gross mismanagement” at FES. Pl.’s MSJ SOF ¶ 65; Pl.’s MSJ Ex. 27
at 1. With regard to fraud, Ottenberg informed Bianco that fraud “absolutely”
could exist, but that he (Ottenberg) was not aware of any. Pl.’s MSJ Ex. 27 at 1.
Ottenberg and Bianco informed Kimmett he should sign the representation relating
to the PennDOT audit because “at this point we probably do not have clear
evidence of fraud.” Pl.’s MSJ Ex. 45 at 1. Roman believed that it was appropriate
to sign the PennDOT audit representation letter so long as he did not have
“personal knowledge” of any wrongdoing. Pl.’s Opp’n Ex. 78 (Roman Dep.)
213:11-214:22, 262:5-265:13. Roman directed Kimmett to sign the PennDOT
audit representation, and Kimmett understood that he would lose his job if he
failed to do so. Pl.’s MSJ Ex. 11 (Kimmett Decl.) ¶ 17. Kimmett was “very
concerned that [he] may lose [his] job because of the gross mismanagement or
possible wrongdoing that has occurred in the past and [his] efforts to rectify.” Pl.’s
MSJ Ex. 45 at 1.
121. Denied because the specific concerns Kimmett detailed for Roman
and Ottenberg are included in his June 15, 2007 Memorandum. Pl.’s Opp’n Ex. 96
33
at TDK 002465-67. Kimmett also was concerned that wrongdoing and fraud had
occurred previously in FES and explained this to Roman and then, in a separate
conversation, to Bianco and Ottenberg. Pl.’s MSJ Ex. 11 (Kimmett Decl.) ¶ 17;
see also supra response to ¶ 120. Kimmett informed Roman of the “statements
made by representatives in the Department of Revenue regarding possible
wrongdoing.” Pl.’s MSJ Ex. 45 at 1. In response to this, Roman claimed to have
“personally sat down with Robert Coyne, Deputy Secretary – Department of
Revenue” to discuss this. Id. Mr. Coyne, however, has testified that he has no
recollection of such any such conversation with Mr. Roman. Pl.’s Opp’n Ex. 97
(Coyne Dep.) 213:10-214:13. Mr. Rovelli testified that he did not discuss
Revenue’s allegations with Mr. Coyne. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 426:1-
21. Notwithstanding that Kimmett informed Roman that Revenue personnel had
leveled accusations of wrongdoing in FES, neither Roman nor Rovelli raised that
issue with Deputy Secretary Coyne. Both Roman and Rovelli, however, signed the
PennDOT representation letter despite Mr. Kimmett communicating his specific
concerns and the allegations by Revenue personnel to them. See Pl.’s Opp’n Ex.
96 at TDK 002469.
122. Denied because Roman, who prepared that review, described his
review of Kimmett as “[f]avorable and neutral. It was based on, you know, what
little exposure I had had to Tom at that point, only a few months.” Pl.’s Opp’n Ex.
34
78 (Roman Dep.) 307:14-308:1. Roman’s evaluation of Kimmett was made prior
to many of Kimmett’s reports of waste, gross mismanagement, and wrongdoing
that he later would send to Roman. See, e.g., Pl.’s Opp’n Ex. 98; Pl.’s Opp’n Ex.
89; Pl.’s MSJ Exs. 36, 45, 46, 53. It was also made prior to Kimmett reporting on
malfeasance that he learned was occurring in DOR. See, e.g., Pl.’s MSJ Exs. 26,
48.
124. Admitted with the explanation that Roman, who was responsible for
reviewing Kimmett, did not know why Kimmett received a pay raise above the
average, and he was not the one who decided the amount of raise Kimmett would
receive. Pl.’s Opp’n Ex. 78 (Roman Dep.) 310:11-312:5. Rovelli believed that the
pay increase was pro-rated to reflect the fact that Kimmett’s employment did not
start right at the beginning of the fiscal year. Pl.’s Opp’n Ex. 65 (Rovelli Dep.)
413:13-414:20.
125. Admitted that Kimmett reported problems to superiors, but denied
insofar as Defendants’ statement is meant by way of limitation. Kimmett’s reports
of problems within FES’s and DOR’s operations were made to numerous persons,
including but not limited to Roman. Kimmett also reported the problems (waste,
wrongdoing, gross mismanagement) to others including Nutt (outside his chain of
command), Ryan (leapfrogging his direct chain of command), Furlong and persons
35
at other agencies as well as Rich Hudic (all outside of his chain of command and
outside OAG). Pl.’s MSJ SOF ¶¶ 79-86. Many of these reports were clearly not
part of his job responsibilities; for example, Kimmett communicated with Furlong
and Gregory Skotnicki, both Revenue employees, about examples of waste and
wrongdoing he had discovered and steps he was taking to attempt to remedy them.
See, e.g., Pl.’s Opp’n Exs. 99-102; Pl.’s Opp’n Ex. 103; Pl.’s Opp’n Ex. 88
(informing Furlong of actions by PCA that Kimmett believed were in violation of
the law). Kimmett also informed Mary Woodbridge and Joseph Dorbad of the
State Workers insurance fund in July 2008 that PCAs may have wrongly been
offering compromises to debtors without prior approval, contrary to policy. Pl.’s
Opp’n Ex. 73 at 3-4 (referencing July 1, 2008 conference call discussing that
issue)).
126. Denied insofar as Defendants’ statement limits the extent of the
problem discovered and raised by Kimmett. Kimmett described multiple issues
relating to compromises with Mr. Roman, including (in addition to those listed by
Defendants) the failure of PCAs to obtain and submit required documentation to
support proposed compromises and otherwise meet the policies and procedures
necessary to obtain a compromise, see, e.g., Pl.’s Opp’n Ex. 97 (Coyne Dep.) 32:6-
13, 96:18-97:11 (explaining documentation required for compromise to be
processed); pressure by Revenue and PCAs to approve compromises that had been
36
rejected because the taxpayer could not show valid cause (financial hardship,
failure to receive timely notice, etc.) to justify a compromise, see, e.g., Pl.’s Opp’n
Ex. 69 (Furlong Dep.) at 408:1-9 (explaining that debtors need to show cause in
order to obtain a compromise), and Furlong requesting compromises inconsistent
with Revenue policy, see Pl.’s Opp’n Ex. 104.
127. Denied insofar as Kimmett not only reported the “What-If”
compromise issue to Mr. Roman, but also had multiple communications with
Revenue personnel, including but not limited to Furlong regarding that issue.
Kimmett identified the “What-If” issue as creating a dangerous precedent,
confirmed in part by the fact that Revenue does not publicize that it is willing to
compromise jeopardy assessments with debtors who have failed to appeal and who
can show no hardship. Pl.’s MSJ Ex. 48; Pl.’s Opp’n Ex. 69 (Furlong Dep.)
415:14-19, 418:6-14.
128. Denied. Contrary to Defendants’ statement, Kimmett did not
“threaten to disapprove” commission payments and fees. Instead, “Mr. Kimmett
questioned actions by Revenue, including pay-direct reports, no fee reports,
improper commissions being authorized, the ‘what-if’ settlements, the failure to
document compromises, in numerous verbal reports to Roman, Furlong, and
others.” Pl.’s Opp’n Ex. 105 at 13.
37
Indeed, in instances in which Kimmett believed a commission should not be
paid to a PCA, Kimmett routinely consulted with DOR and Roman, expressed his
concerns, and sought their guidance. See, e.g., Pl.’s MSJ SOF ¶ 78; Pl.’s MSJ Ex.
57 at 1-2 (Kimmett’s May 13, 2008 email: Kimmett raises concern to Roman and
Furlong about a $324,965 commission payment to a PCA); id. at 1 (Furlong’s May
23, 2008 response: concurring with Kimmett’s conclusion); see also response to
paragraph 185-86, infra. But when Kimmett would recommend that certain
commission payments should not be made to PCAs, the PCAs routinely would
protest to Furlong and Roman and request that they reject Kimmett’s
recommendation. See, e.g., Pl.’s MSJ Ex. 58 at 2 (Coyne and Furlong deciding to
allow $324,965 commission payment because of “‘threat’ [by PCA] to go to the
General”). See also Pl.’s MSJ Ex. 55 (PCA Complaint to Furlong, forwarded to
Roman, about compromises that Kimmett had not approved); Pl.’s Opp’n Ex. 106
(spreadsheet prepared by Kimmett’s compromise team detailing reasons those
compromises had not been approved, and disproving PCA’s and Furlong’s claim
that Kimmett had approved no compromises submitted by Linebarger PCA); Pl.’s
Opp’n Ex. 76 (Burman Dep.) 184:2-191:15 (confirming decisions to reject certain
compromises for failing to meet required criteria were correct, despite challenges
raised by PCA through DOR and Roman).
38
Ultimately, Kimmett would follow whatever instruction he received from his
superior, Roman, regarding the disposition of a compromise, even if he and/or
members of his team had valid reasons for recommending that the compromise not
be accepted. Pl.’s Opp’n Ex. 76 (Burman Dep.) 249:16-250:7.
129. Admitted that Plaintiff notified Roman, but denied insofar as
Defendants ignore that Plaintiff also notified others, including DOR’s Furlong, see
Pl.’s Opp’n Ex. 88 (forwarding report to Furlong), about this and other examples
of PCAs taking actions that violated the law and were contrary to the terms of their
contracts with OAG. See also Pl.’s Opp’n Ex. 73. Indeed, Kimmett
communicated with Furlong and Susan Cruz – both Revenue employees –
regarding acts by PCA employees that violated confidentiality restrictions and
were likely illegal, and that had been routinely tolerated by FES prior to Kimmett’s
arrival. See Pl.’s Opp’n Ex. 107.
130-31. Denied. Kimmett met with Nutt to detail the waste, wrongdoing,
and gross mismanagement that Kimmett had discovered at FES. Kimmett
explained to Nutt that he was not receiving support for his actions to remedy the
myriad problems he had discovered and his fear that he would be fired because of
his persistent attempts to take steps to rectify those problems. Pl.’s Opp’n Ex. 68
(Kimmett Dep.) 466:4-471:3, 474:6-476:3; see also Pl.’s Opp’n Ex. 76 (Burman
Dep.) 235:14-237:4 (Burman also spoke to Nutt of Kimmett’s concerns at
39
Kimmett’s request). Because of this lack of support and fear for his job security,
Kimmett requested reassignment.
132. Admitted that the meeting with Ryan was arranged at Nutt’s
suggestion, with the explanation that Ryan believed it was inappropriate for
Kimmett to discuss his concerns with Ryan and Nutt rather than with Roman and
Rovelli. Pl.’s Opp’n Ex. 81 (Ryan Dep.) 162:8-164:3. Before that meeting, Ryan
had “no idea” that Kimmett had previously and repeatedly reported the problems
he had identified to Roman and Rovelli. Id. 164:19-165:5. Contrary to Ryan’s
opinion, Corbett testified that insofar as Kimmett believed that wrongdoing had
occurred in FES, it would be proper for Kimmett to meet with Ryan to discuss it.
Pl.’s Opp’n Ex. 108 (Corbett Dep.) 261:20-263:6. (Corbett, however, claimed to
have no knowledge that Kimmett had in fact met with Ryan. See id. 262:9-15.)
Ryan, however, testified that it was “[n]ot a great career move” for Kimmett to
request a meeting with him because it would likely lead to recriminations from
Rovelli. Pl.’s Opp’n Ex. 81 (Ryan Dep.) 174:17-175:8. As Ryan explained, to “go
over your supervisor’s head and to complain could cause your supervisor to have,
let’s say, a certain ill-will toward you. Now, I’d like to think Lou [Rovelli]
wouldn’t, but we’re all human.” Id. 175:9-15.
133. Denied. At that meeting, Kimmett advised Nutt and Ryan about all of
the problems he had found in FES up to that point and about his conversations with
40
Furlong regarding wrongdoing at FES, including the fact that Furlong had
implicated Keiser, Brandwene, and Rovelli in wrongdoing and a cover up. Pl.’s
MSJ Ex. 64 at 1253; Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 478:18-480:21. Ryan
promised to follow up with Corbett and get back to Kimmett in two to three weeks,
and told Kimmett not to worry because they would not let his “legs get chopped
out from under [him].” Pl.’s MSJ Ex. 64 at 1254; Pl.’s Opp’n Ex. 68 (Kimmett
Dep.) at 480:13-17. Ryan never got back to Kimmett as promised. Pl.’s Opp’n
Ex. 68 (Kimmett Dep.) 480:25-481:13. Nutt recalled that, at the meeting with
Ryan and Kimmett, Kimmett expressed his concern that “things were not running
appropriately in FES.” Pl.’s Opp’n Ex. 112 (Nutt Dep.) 253:22-255:2.
In a September 26, 2008 email to Kimmett, Nutt stated that he and Ryan
“will be sitting down with Tom Corbett to discuss.” Pl.’s Opp’n Ex. 109. Nutt
testified that this was a lie – he did not sit down with Corbett to discuss the issues
and he never intended to do so, despite telling Kimmett otherwise. Pl.’s Opp’n Ex.
112 (Nutt Dep.) 155:3-165:2.
137. Denied insofar as Kimmett’s attorney had conversations with the FBI
prior to filing suit. Subsequent to his communications with the Assistant United
41
States Attorney Bruce Brandler, Kimmett reached out to an attorney for personal
representation. Pl.’s MSJ SOF ¶ 84. Kimmett’s original attorney communicated
with the FBI agent in the summer of 2008, and the FBI has met with Kimmett
himself and Kimmett’s current counsel on subsequent occasions, including most
recently in May and July 2010. Id. ¶ 85.
138-39. Denied. Kimmett told a number of people, including Diane
Burman, various Revenue employees, and Tom Armstrong, a policy director for
Governor Ridge who worked out of Revenue who now works for DCED, about his
communications with persons outside of OAG regarding the problems at FES.
Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 198:11-200:18. Although Defendants Corbett,
Rovelli, and Roman denied direct knowledge of Kimmett’s contacts, it was shortly
after Kimmett made those contacts that Roman took the unusual step of drafting a
memorandum about Kimmett’s job performance for Rovelli to be shared with
Ryan. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 515:6-22. By contrast, no such memo
had been drafted about Mark Santanna, who was found to have violated the law
and who was asked to resign or be fired. See id. 520:3-521:8 (no written memo
about Santanna); Pl.’s MSJ SOF ¶ 22; Pl.’s Opp’n Ex. 111 (Sarteschi Dep.) 174:2-
178:1 (Santanna resigned because of illegal acts). Nor had such a memo been
drafted about Keiser, whose “sheer and utter incompetence” had ultimately led
Rovelli to replace her with Kimmett. See Pl.’s Opp’n Ex. 65 (Rovelli Dep.)
42
523:18-524:3 (no memo written about Keiser); id. 254:6-254:8 (Rovelli testifies
that Keiser had become “a major issue and a major problem”); Pl.’s Opp’n Ex. 67
(Ottenberg Dep.) 332:20-333:19 (describing Keiser as exhibiting “sheer and utter
incompetence”); Pl.’s MSJ Ex. 33 (same). Because Defendant Rovelli, Roman,
and Ryan took the unusual step of papering alleged issues with Kimmett at a point
in time that closely coincided with Kimmett’s communications to Kane and AUSA
Brandler (and Kimmett informing others in OAG, DOR, and elsewhere that he had
done so), the evidence demonstrates, at a minimum, a triable issue of fact as to
whether Defendants were aware of Kimmett’s communications about the problems
at FES with persons outside of OAG, including Kane and AUSA Brandler.
141-42. Denied. Hudic told Kimmett he was “reaching out” to Nutt and
Corbett. Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 200:4-201:4. Indeed, Hudic e-mailed
Nutt on April 29, 2008, writing, “When you have a minute, can you call me about
Tom Kimmett?” Pl.’s MSJ Ex. 62. Nutt testified that he could not recall whether
he had any communications with Hudic about Kimmett. Pl.’s Opp’n Ex. 112 (Nutt
Dep.) 193:15-194:7.
Nutt received the April 2008 email from Hudic asking Nutt to contact Hudic
about Kimmett. While Hudic now claims Nutt never made the requested contact,
Nutt knew precisely what Kimmett had communicated to Hudic – specifically the
43
problems Kimmett had identified at FES – and Nutt decided to avoid the
conversation (just as he allegedly avoided a similar conversation with Corbett, see
Counter-SOF ¶ 133, supra). Indeed, by that point in time, Nutt was well aware
that Kimmett was discussing what he found in FES and DOR with others. Nutt
had met with Kimmett twice about his findings of waste, mismanagement, and
wrongdoing, see Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 466:4-16, 478:18-480:21, and
Burman had spoken with Nutt on Kimmett’s behalf regarding the situation in FES.
See id. 482:7-484:14 (“And she said, Brian, they’re trying to push him off a cliff,
you know, because of what he found and what he’s reported.”); Pl.’s Opp’n Ex. 76
(Burman Dep.) 235:11-239:15 (testifying to Burman’s conversation with Nutt);
Pl.’s Opp’n Ex. 113 (notes reflecting Burman’s conversation with Nutt). In sum,
once Nutt received Hudic’s email, he did not need to speak with Hudic to know
that Kimmett had been discussing FES’s problems with Hudic.
143. Denied to the extent that Defendants’ discussion of the Artiva project
in the paragraphs below is not material except to demonstrate that Defendants later
used that project as a pretext for Kimmett’s termination. Defendants had removed
Kimmett from the project prior to his 2007-08 review, drafted prior to Kimmett’s
filing suit, yet no decision was made at that time to terminate Kimmett’s
employment because of his role in the Artiva project. The decision to terminate
Kimmett was made once Kimmett filed his lawsuit, publicly exposing the waste,
44
wrongdoing, and gross mismanagement he had discovered. Pl.’s MSJ SOF ¶¶ 87-
91.
144. Admitted with the clarification that the decision to replace the FES
computer system was made in April 2006, months prior to Kimmett commencing
his employment as Collections unit supervisor. Pl.’s Opp’n Ex. 67 (Ottenberg
Dep.) 179:7-180:2.
146-47. Denied. Kimmett’s role was to “provide the business
information to select a package.” Pl.’s Opp’n Ex. 114 (Gunn Dep.) 130:14-21.
Ms. Gunn is certain that the items Kimmett wanted included in the collections
software package were included in the RFI sent to vendors who would bid on the
system. Id. 131:6-10. Kimmett and Ottenberg had a shared role in the Artiva
project – to help Janey Gunn, the IT expert, understand how the business unit
functioned and what they were trying to accomplish. Id. 131:18-132:12.
150. Denied. Kimmett was expected to make business decisions relating to
the Artiva project, an example of which was selecting a vendor to use for
processing credit card transactions. Pl.’s Opp’n Ex. 67 (Ottenberg Dep.) 190:19-
192:2. Technical information, such as the codes involved in inputting and
45
processing claims, were provided by others. The Financial Enforcement
Technicians, like Bellaman and Gill, and not Kimmett, possessed the specific
knowledge of the myriad technical codes and coding issues. Pl.’s Opp’n Ex. 70
(Gill Dep.) 286:6-288:7; Pl.’s Opp’n Ex. 74 (Keiser Dep.) 99:7-100:12 (more than
50 different codes); Pl.’s Opp’n Ex. 65 (Rovelli Dep.). 287:17-289:9 (“It’s codes.
Everything is – it’s the land of codes. Codes for this, codes for that.”). Kimmett
was not expected to furnish such information personally; he relied on the
collections staff for such information. See Pl.’s Opp’n Ex. 70 (Gill Dep.) 284:11-
295:21; Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 371:13-17, 380:25-381:21, 567:1-8.
At Kimmett’s request, Gill and/or Bellaman communicated with Gunn on multiple
occasions to provide the code information for the project. Pl.’s Opp’n Ex. 70 (Gill
Dep.) 288:8-289:4; Pl.’s Opp’n Ex. 13 (Bellaman Dep.) 567:1-8. Gill felt it was
completely appropriate for Kimmett to ask her to meet with Gunn about codes,
since she had superior knowledge about them. Pl.’s Opp’n Ex. 70 (Gill Dep.)
288:8-20.
151-52. Denied. Gunn specifically identified “action codes” as
information Kimmett did not provide in timely fashion. Pl.’s Opp’n Ex. 114
(Gunn Dep.) 176:7-178:14, which were not within Kimmett’s knowledge or
expertise. See response to ¶ 150, supra. Gunn received the requested action code
46
information from Bellaman, who knew the codes through her years of work as an
FES technician. Pl.’s Opp’n Ex. 114 (Gunn Dep.) 179:3-180:8.
Gunn complained that she, and not Kimmett, completed “conversion
translations” for the Artiva system, Pl.’s Opp’n Ex. 114 (Gunn Dep.) 192:12-
193:7, and that Kimmett did not participate directly in working through the 200+
row spreadsheet of functionality gaps for the system. Id. 194:4-198:19. Gunn and
Ottenberg had specific IT expertise; Kimmett did not. See Pl.’s Opp’n Ex. 67
(Ottenberg Dep.) 180:3-16 (Ottenberg describes himself as a “near-expert in IT”);
id. 181:3-182:3 (Gunn an IT expert); id. 182:4-25 (Kimmett not an IT expert; not
hired to bring IT expertise to the table). Not being an IT expert, Kimmett did not
have the level of technical understanding about Artiva as Gunn and Ottenberg. Id.
189:21-190:11.
153-54. Denied. The February/March 2008 meeting with Artiva
representatives in Muncie, Indiana was scheduled on short notice, and Kimmett
informed Gunn that he had a prior, longstanding commitment that would prevent
him from traveling on the dates Gunn had selected. Pl.’s Opp’n Ex. 114 (Gunn
Dep.) 208:19-210:5. (Indeed, Kimmett was not unique in his need to schedule
Artiva events with family issues – Ottenberg would later inform Gunn of his
unavailability during two weeks in the summer because of his son’s hockey
tournament, and he received a similarly chilly and uncompromising response from
47
Gunn. See Pl.’s Opp’n Ex. 115.) Because he could not attend that meeting,
Kimmett asked one of his staff to fill in for him. Pl.’s Opp’n Ex. 114 (Gunn Dep.)
218:8-20. Gunn and others were reluctant to change the date of this meeting to
accommodate Kimmett because they preferred that the travel not conflict with the
Presidents’ Day holiday. Id. 212:12-217:7. Notwithstanding Kimmett’s absence,
the meeting was successful and its goals were achieved; to the extent a few gaps
remained after the meeting, Kimmett helped to complete them. Id. 211:16-212:11.
155. Denied. Kimmett explained to Gunn that because of his day-to-day
work obligations in FES, it would be difficult for him to travel to Muncie to attend
the week-long April 2008 Artiva conference. See Pl.’s Opp’n Ex. 116; Pl.’s Opp’n
Ex. 117 (noting Kimmett’s staff was stretched pretty thin); Pl.’s Opp’n Ex. 78
(Roman Dep.) 530:6-531:5 (Kimmett was very busy on FES work). Kimmett
offered send someone else from FES. Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 348:24-
349:5.
Kimmett was dealing with significant, non-Artiva related issues in the
Collections unit at this time. He had identified that $60,000 to $80,000 in checks
were missing from the office. Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 349:3-350:15.
He had discovered previously unknown compromise files that included wildly
inappropriate proposed compromises. Pl.’s MSJ Ex. 47. Around this time,
Burman had informed Kimmett that Furlong was “playing with accounts” that had
48
a compromise offer by “lower[ing] the dollar amount previously established” with
the debtor. Pl.’s Opp’n Ex. 118; Pl.’s Opp’n Ex. 76 (Burman Dep.) 215:5-223:14.
Kimmett also was attempting to determine whether certain large pay-direct
commissions had been paid improperly. Pl.’s Opp’n Ex. 101; Pl.’s Opp’n Ex. 119.
And he was evaluating compromises that had been submitted by PCAs. Pl.’s
Opp’n Ex. 120. In sum, Kimmett was indeed very busy in the days leading up to
the April 2008 Artiva conference in Muncie.
Because of the pressing issues he was dealing with in FES at this time,
Kimmett thought it prudent to stay in the office and send Burman, who understood
the “nuts and bolts of what you do in the [FES] computer system” instead, while he
would be available by phone to consult with Burman if needed. Pl.’s Opp’n Ex. 68
(Kimmett Dep.) 350:16-351:21. Burman wanted to go. Id. 351:20-21. But Gunn
was adamant that Kimmett attend the conference. Pl.’s Opp’n Ex. 68 (Kimmett
Dep.) 351:22-352:5. At her and White’s request, Roman instructed Kimmett to
attend the conference. Pl.’s Opp’n Ex. 116; Pl.’s Opp’n Ex. 78 (Roman Dep.)
532:21-533:6. Kimmett did so. Id.; Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 572:8-
573:20.
Kimmett requested the opportunity to schedule a mid-day flight back to
Pennsylvania on the last day (Friday) so that he could attend a previously
scheduled dinner at an event. Pl.’s Opp’n Ex. 78 (Roman Dep.) 531:6-21, 533:7-
49
13. Gunn objected to Kimmett’s request to return mid-day on Friday, despite the
fact that Ottenberg has himself scheduled a return flight on Thursday so he could
meet a prior commitment. Pl.’s Opp’n Ex. 114 (Gunn Dep.) 264:12-265:7.
Ultimately, and notwithstanding his other substantial obligations back at the office,
Kimmett attended the entire Artiva conference in April 2008, as Roman and Gunn
requested. Pl.’s Opp’n Ex. 78 (Roman Dep.) 532:21-533:6.
156. Denied. The purpose of the meeting in Muncie was to “review and
refine the setup that Ontario Systems did for our installation of their product based
on the Business Solutions document,” Pl.’s Opp’n Ex. 114 (Gunn Dep.) 238:5-12,
and “to fill in some of the gaps,” id. 249:17-250:9. Kimmett attended that meeting.
See response to ¶ 155, supra.
157. Denied. Kimmett was to make decisions regarding business issues,
not technical IT issues and configuration specifics. See response to ¶ 150, supra.
But in reality, Rovelli would side with Gunn on any dispute with Kimmett because
Rovelli considered Gunn’s reports with respect to Kimmett to be “unimpeachable.”
Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 585:2-588:16; Pl.’s MSJ Ex. 64 at 1260-61,
1268-70.
158. Denied. Defendants misrepresent Gunn’s testimony. Ms. Gunn was
clear that, other than the information regarding Kimmett’s initial disinclination to
attend the trip to Muncie in April, 2008, her communications to White regarding
50
the project and Kimmett’s participation were routine. Gunn testified that prior to
early April 2008, she did not have concerns about Kimmett’s performance on the
Artiva project. Pl.’s Opp’n Ex. 114 (Gunn Dep.) 253:7-12. Indeed, Gunn
explained, “I didn’t say that I expressed concern to Mr. White about Mr.
Kimmett’s performance. I told George that I was concerned about the success of
the project if Tom was not going to attend this session.” Id. 253:1-6 (emphasis
added). And Kimmett ultimately did attend the session at issue. See response to ¶
155, supra. Nor did Gunn testify that “deadlines that had been missed because of
plaintiff’s failure to provide or timely provide business information or to make or
timely make business decisions.” Defs.’ MSJ SOF ¶ 158. Gunn testified: “When
we put together an overall project timeline, it is my responsibility to keep [White]
in the loop. Projects slip sometimes…. You know, you keep your boss informed
about what’s going on, and I did that…. I’m sure I kept [White] up to date on the
overall progress or lack thereof for the project with respect to the targeted
implementation date…. I don’t know whether I expressed concerns in e-mails or
not.” Pl.’s Opp’n Ex. 114 (Gunn Dep.) 259:9-260:22. When asked specifically
about any other communications with White about Kimmett, Gunn explained that,
to the extent she discussed Kimmett in any updates, she “would have referred to
Tom’s participation, just like [she] would have referred to the participation of
[Ottenberg], or anybody else who was a member of the project team.” Id. 261:1-
51
14. Any communication to White about Kimmett was “in the course of a standard
update that a subordinate would give their manager regarding the progress of
assignments.” Id. 261:15-262:6.
159-61. Admitted that White sent an email to Roman. Denied as to the
accuracy of what was expressed in that email. As noted above, Gunn testified that
she did not have concerns with Kimmett’s performance on the project prior to
April 2008, and that the only specific communications she recalled with White
relating to Kimmett’s performance on the project were the email exchanges that
led to White’s letter to Roman about Kimmett’s attendance at the April 2008
Muncie conference. See response to ¶ 158, supra.
Although opinions differ as to whether the Artiva project (implemented long
after Kimmett’s termination from OAG) has been a success, compare Pl.’s Opp’n
Ex. 70 (Gill Dep.) 315:15-323:4, with Pl.’s Opp’n Ex. 76 (Burman Dep.) 301:9-
302:11, any apparent failures of the system as implemented are not the fault of
Kimmett. See Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 561:3-13; Pl.’s Opp’n Ex. 70
(Gill Dep.) 322:4-323:4. Roman removed Kimmett from the project in June 2008.
Pl.’s Opp’n Ex. 114 (Gunn Dep.) 275:6-276:5. Long after Kimmett’s employment
termination, the Artiva project vendor experienced multiple rounds of layoffs that
directly impacted the project. Id. 284:22-287:4. Subsequent to Kimmett’s
departure, there were project delays relating to writing technical interfaces with the
52
Commonwealth’s SAP system (id. 287:18-288:11) – tasks never alleged by anyone
to be within Kimmett’s purview. See response to ¶ 151-52, supra.
163. Denied for lack of specificity. Gunn specifically believed Kimmett
was not providing information about dunning letters, “particularly the variables
that would be filled in by the system on letters. There were inconsistencies
between the dialogue that was in the IVR scripts, and the dialogues that … was in
the letters.” Pl.’s Opp’n Ex. 114 (Gunn Dep.) 269:17-270:12. This is precisely the
type of information that the IT experts and the FES Technicians who interacted
with Gunn were best suited to handle. See response to ¶¶ 150, 151-52. Kimmett
tasked Bellaman, a FES technician with specific knowledge of the requested
information, to work with Gunn. Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 567:1-8;
Pl.’s Opp’n Ex. 114 (Gunn Dep.) 271:6-271:18. Other technicians assisted
Bellaman in providing the technical information. Pl.’s Opp’n Ex. 66 (Bellaman
Dep.) 381:15-384:5.
164. Denied. Gunn testified that after Kimmett was taken off the project,
she went to talk to Rovelli “because I did not see a long-term solution coming from
Mike [Roman].” Pl.’s Opp’n Ex. 114 (Gunn Dep.) 302:5-303:6 (emphasis added).
By then, Kimmett was no longer on the project; Gunn’s concern was with Roman’s
failure to provide a long-term solution, not Kimmett’s. Id. 301:9-302:10. Once
53
Kimmett was taken off the project, Keiser would not let Bellaman work on the
project, despite Bellaman’s expertise. Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 561:3-
13.
165. Denied. Because the information requested was that known to FES
technicians, not Kimmett, Kimmett made Bellman available to meet with Gunn
and respond to those technical requests. See response to ¶ 163, supra.
166. See response to ¶ 164, supra.
167. Admitted, with the clarification that after Kimmett was removed from
the project, Keiser took over and Keiser, Roman, and Gunn isolated Kimmett and
Bellaman from working on the project further. Pl.’s Opp’n Ex. 66 (Bellaman
Dep.) 561:3-13.
168. Denied insofar as Defendants’ discussion of these complaints in the
paragraphs below are not material except to demonstrate that Defendants later used
them as a pretext for Kimmett’s termination. They were known prior to Kimmett’s
2007-08 review, drafted prior to Kimmett’s filing suit, yet no decision was made at
that time to terminate Kimmett’s employment. The decision to terminate Kimmett
was made after Kimmett filed his lawsuit, publicly exposing the waste,
wrongdoing, and gross mismanagement he had discovered. Pl.’s MSJ SOF ¶¶ 87-
91.
54
169-71. Denied. Defendants’ assertion that DOR complained that
Kimmett’s interactions with Revenue employees “violated … interagency
protocol,” Defs.’ MSJ SOF ¶ 169, and that DOR considered Kimmett’s “demands
… inappropriate and overreaching,” id. ¶ 171, omits the two underlying reasons
DOR took issue with communications between Kimmett and Revenue employees:
Kimmett’s practice of reporting wrongdoing that those employees discussed with
him, and Kimmett’s attempts to get DOR to participate in the Artiva software
project – a project in which DOR had no interest in participating.
First: Through communications with Revenue staff, Kimmett learned of
waste, gross mismanagement, and wrongdoing both in FES and DOR. Early in his
tenure, Kimmett met with four Revenue officials, a group that included Furlong,
who informed Kimmett of prior wrongdoing in FES. See Pl.’s MSJ SOF ¶¶ 39-41.
The wrongdoing in FES included acts by Keiser that violated the law as well as
possible cover-ups by her superiors Brandwene and Rovelli. Id. ¶ 41. At first,
Furlong was forthcoming and promised to provide Kimmett with documentation
proving the wrongdoing. Id. ¶¶ 44-45. But once higher-ups at DOR and OAG got
wind of this, see id. ¶ 43, Furlong informed Kimmett that superiors at DOR and
OAG had reached a deal preventing Furlong from providing the promised
documentation. Id. ¶ 45; Pl.’s MSJ Ex. 31.
55
Subsequently, Kimmett would learn from other Revenue employees about
malfeasance within DOR. For example, Susan Cruz provided Kimmett with
information, including many “no fee report” spreadsheets, showing that DOR was
not collecting “Act 40 fees” from debtors as required by law, resulting in
significant loss of funds to the Commonwealth. See Pl.’s MSJ SOF ¶¶ 71-76; Pl.’s
Opp’n Ex. 121. Kimmett also learned that DOR was entering into “What-If”
compromises with debtors and keeping that practice quiet because it circumvented
the established appeals process and cost the Commonwealth money. Pl.’s MSJ
SOF ¶ 70; Pl.’s Opp’n Ex. 69 (Furlong Dep.) 415:14-19; 418:6-14.
Second: DOR was strongly averse to participating in FES’s Artiva project.
See Pl.’s Opp’n Ex. 123. Because DOR is FES’s largest agency client, Pl.’s MSJ
SOF ¶ 37, DOR’s cooperation in the Artiva project was essential for its success.
See Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 472:7-10; Pl.’s Opp’n Ex. 97 (Coyne Dep.)
262:3-263:2. DOR’s Secretary Coyne, however, considered the Artiva project an
“unfunded mandate which [he had] absolutely NO interest in addressing,” and
toward which he was completely unwilling to dedicate “ANY of [his] IT project
resources.” Pl.’s Opp’n Ex. 124 at 1; Pl.’s Opp’n Ex. 97 (Coyne Dep.) 228:10-
229:22; but see Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 477:8-478:10 (Artiva was “fully
funded” as a “project of the Office of Attorney General”). In response to
Kimmett’s efforts to work with DOR on the Artiva project, Coyne labeled
56
Kimmett “a dreamer from way back”; Coyne did not believe the Artiva project’s
goals were feasible. Pl.’s Opp’n Ex. 125; Pl.’s Opp’n Ex. 97 (Coyne Dep.) 244:8-
245:5. Coyne did not like that FES was taking the lead on a computer system
upgrade that impacted DOR. Pl.’s Opp’n Ex. 124. Coyne felt that the FES Artiva
project might detract resources from DOR’s “Roadmap” plan to upgrade its own
system. Pl.’s Opp’n Ex. 125; Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 466:5-466:15,
470:17-471:22. Coyne told other at DOR, “I want to be able to brief OAG as to
what is a dog and how the tail does not wag the dog but just the opposite.” Pl.’s
Opp’n Ex. 124. Coyne and Furlong blamed Kimmett for causing disruption when
Kimmett instructed a member of his staff, at the behest of Ottenberg and Gunn to
send requests to all Commonwealth agencies (and subdivisions) for updated
contact information, which was needed for the Artiva project. See Pl.’s Opp’n Ex.
126; Pl.’s Opp’n Ex. 127 at 2-3; Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 470:17-471:22
(conceding that DOR was very “sensitive” about matters involving the Artiva
project).
DOR’s steadfast refusal to participate in the Artiva project was not a
“Kimmett issue” – indeed DOR maintained its steadfast refusal to cooperate with
the Artiva project even after Kimmett was off the project, refusing overtures from
Roman to participate in the project. Pl.’s Opp’n Ex. 128; Pl.’s Opp’n Ex. 97
(Coyne Dep.) 266:17-268:19. In fact, today, nearly two years after Kimmett’s
57
departure, and more than a year after Artiva has been implemented, FES’s Artiva
system still does not handle any DOR claims, and DOR is not working with, and
has no plans to work with, FES on any systems modernization to address this.
Pl.’s Opp’n Ex. 70 (Gill Dep.) 330:3-333:4 (today, DOR’s system not compatible
with Artiva system; DOR claims have not been entered into Artiva since system
went live in 2009); Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 401:24-402:1 (Revenue
still referring their cases directly to PCAs); Pl.’s Opp’n Ex. 97 (Coyne Dep.)
268:20-269:16 (not working with FES on the issue).
Because Kimmett would report the waste and malfeasance he learned from
Revenue employees to others, and because he was attempting to get information
from those employees to pursue the unwanted Artiva project, DOR demanded that
“any and all requests [Kimmett] or [Kimmett’s] staff may have for anything from
The Department of Revenue must come from Mike Roman to [Furlong].” Pl.’s
Opp’n Ex. 122.
172. Denied as to the characterization of the actual complaints received.
Roman claims to have received complaints from Collections unit staff that
Kimmett’s treatment of them was “rude,” specifically “[r]ough language. Perhaps
overenthusiastic conversation. I guess the catchall term might be impoliteness or
rudeness.” Pl.’s Opp’n Ex. 78 (Roman Dep.) 549:16-550:15. But those
complaints were never of enough significance that Roman ever felt the need to
58
discuss them with Kimmett, his subordinate. See id. 547:10-549:15; see also Pl.’s
Opp’n Ex. 111 (Sarteschi Dep.) 153:16-154:18, 163:10-164:6, 182:18-183:2 (only
two employees ever complained about Kimmett, and neither complaint was
significant to warrant any follow-up investigation); HR Supervisor Sarteschi never
heard any examples of Kimmett being abusive or acting outrageously or
offensively. Pl.’s Opp’n Ex. 111 (Sarteschi Dep.) 162:15-163:9.
173-74. Denied. As part of this litigation, Cyndi Nale has made her
first-ever written complaint that Kimmett’s interactions with her were
“demeaning.” See Defs.’ MSJ Ex. 13 at Nale Decl. ¶ 19. Prior to this declaration,
the only thing Nale had reported to Bruce Sarteschi, the person in charge of Human
Resources at OAG, about Kimmett was that Kimmett was doing an excellent job.
Pl.’s Opp’n Ex. 111 (Sarteschi Dep.) 161:4-162:8; see also Pl.’s Opp’n Ex. 70
(Gill Dep.) 170:13-173:14 (Nale told Gill she liked working with Kimmett).
As Gill explained, Nale was not a hard worker, and her co-employees would
be left to pick up the slack for her. Pl.’s Opp’n Ex. 70 (Gill Dep.) 136:12-137:7.
When Kimmett would ask Nale to perform certain job functions within her area
knowledge, Nale would complain to Roman and Keiser about the assignment.
Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 192:9-193:19. Nale would throw temper fits
and act childishly while at work. Id. 549:2-551:7.
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Once Kimmett and his staff began discovering and reporting significant
problems with FES’s operations, Keiser brought Nale into her confidence and Nale
became hostile to Kimmett and his team. Pl.’s Opp’n Ex. 66 (Bellaman Dep.)
191:13-193:24, 549:2-551:7. After Kimmett filed his lawsuit, Nale and Keiser
intimidated and ostracized Kimmett’s primary assistants, Burman and Bellaman.
See id. 572:18-574:2. In the summer of 2008, Nale made racist comments to
Bellaman, which Bellaman reported to Roman and Sarteschi. Pl.’s Opp’n Ex. 129;
Pl.’s Opp’n Ex. 76 (Burman Dep.) 81:2-82:12. Nale joined with Keiser in
insulting Bellaman because Bellaman had complained to Sarteschi and Roman
about Keiser’s attempts to intimidate her after Kimmett filed suit. Pl.’s Opp’n Ex.
66 (Bellaman Dep.) 572:18-574:2. Nale would also insult Burman, the other
employee who worked most closely with Kimmett, and would call her names. Id.
172:25-173:9; Pl.’s Opp’n Ex. 70 (Gill Dep.) 258:16-259:7.
Kimmett wrote a negative evaluation of Nale for the 2007-08 review period.
See Defs.’ MSJ Ex. 26 (Roman Dep. Ex. 7). Given that, in the summer and fall of
2008, Kimmett and other employees who worked closely with him raised
significant concerns in writing about Nale’s work ethic and behavior up the chain
of command at OAG, the validity and significance of the made-for-litigation
declaration by Nale is subject to significant factual dispute.
60
176. Denied. An exit interview was conducted of Lisa Ward when she left
OAG’s employ in January 2008. Pl.’s Opp’n Ex. 111 (Sarteschi Dep.) 150:15-18.
Sarteschi did not believe Ward’s comments critical of Kimmett were significant or
worthy of any follow-up. Id. 154:1-18. Sarteschi did not determine whether
Ward’s comments about Kimmett were truthful. Id. 154:3-13. Ward never
expressed any concerns to Kimmett about his interactions with her. Pl.’s Opp’n
Ex. 130 at 11.
Prior to Ward’s departure, Kimmett had given her a sub-par evaluation.
Pl.’s Opp’n Ex. 111 (Sarteschi Dep.) 166:19-166:22; Pl.’s Opp’n Ex. 130 at 10.
As Sarteschi explained, “Lisa wasn’t the most productive employee.” Pl.’s Opp’n
Ex. 111 (Sarteschi Dep.) 165:16-166:18. Ward was “set in her ways” and would
do work “if she wanted to,” but if she felt she should not have to do the work
assigned to her, “she would let the work sit on her desk.” Pl.’s Opp’n Ex. 66
(Bellaman Dep.) 545:24-546:8. Kimmett assigned Ward certain work relating to
the Artiva project that Ward unilaterally decided not to complete. Id. 546:9-547:2;
Pl.’s Opp’n Ex. 130 at 10.
Roman noted that Ward’s “most significant complaint” about Kimmett dealt
with Kimmett’s request that Ward change her work hours, a request that Roman
testified was appropriate for Kimmett to make. Pl.’s Opp’n Ex. 78 (Roman Dep.)
557:17-559:3. Roman never talked with Sarteschi about Ward’s exit interview. Id.
61
559:4-7. Roman described Ward’s complaint as a “[k]ind of a garden variety
complaint. A request is made of an employee, they complain about [it to]
personnel. The personnel says, no, it’s an appropriate request…. [A]t that point I
don’t know what further there is about it.” Id. 559:9-16.
Sarteschi provided the memo of Ward’s exit interview to Kimmett as a
courtesy, Pl.’s Opp’n Ex. 111 (Sarteschi Dep.) 152:10-153:15, and Kimmett
provided a response to Sarteschi. Pl.’s Opp’n Ex. 130 at 9-11.
177. Denied. Ward’s statement, that Kimmett’s emails were inappropriate,
did not concern Sarteschi, who has 39 years of HR experience; he did not think it
worthy of any further investigation. Pl.’s Opp’n Ex. 111 (Sarteschi Dep.) 158:4-
160:10. Roman also did not feel Ward’s comments about Kimmett’s emails were
significant enough to warrant any kind of follow-up. Pl.’s Opp’n Ex. 78 (Roman
Dep.) 560:9-562:12.
178. Denied insofar as Holly Goho did not like the fact that Kimmett had
criticized her for using a personal day to take a Friday off from work while the
office was very busy. Pl.’s Opp’n Ex. 78 (Roman Dep.) 568:13-570:7. Roman felt
it was appropriate for Kimmett, as Goho’s superior, to make such a criticism to
her. Id. 569:18-570:7. Roman does not recall ever discussing Goho’s complaint
about Kimmett with Kimmett. Id. 570:19-21. Gill reported that Goho did not like
Kimmett because Kimmett was critical of the quality of her work. Pl.’s Opp’n Ex.
62
70 (Gill Dep.) 154:13-22. Goho was one of only two employees who ever
complained about Kimmett to Sarteschi, the HR Supervisor, Pl.’s Opp’n Ex. 111
(Sarteschi Dep.) 207:17-208:5, and Sarteschi did not believe that Goho’s complaint
was significant enough to warrant any follow up or investigation. Id. 163:10-
164:6. Sarteschi did not believe that Goho’s complaint about Kimmett rose to the
level of inappropriate behavior or that it created a bad environment in FES. Id.
164:7-11.
182. Admitted that this is Gill’s recollection insofar as Kimmett told Gill
that the “powers may be” might hold her failure to attend the meeting against her
because Roman had been reluctant to re-hire Gill after her abrupt departure in early
2006. Pl.’s Opp’n Ex. 70 (Gill Dep.) 226:13-229:10. Kimmett had to struggle to
get Gill rehired in 2007. Id. 223:17-224:8.
183. Denied. As Gill explained, Kimmett’s comments about purgatory (to
extent at all material, which Plaintiff disputes) were in reference to the entire
office, not Gill alone. Pl.’s Opp’n Ex. 70 (Gill Dep.) 232:5-233:6.
184. Denied insofar as Gill never asked Roman to take any action toward
Kimmett because of Kimmett’s comments to her. Pl.’s Opp’n Ex. 70 (Gill Dep.)
63
234:10-235:11. Gill informed Roman of her conversation with Kimmett only
because she wanted Roman to be aware of Kimmett’s comments in case Kimmett
took any negative employment action against her. Id. 235:9-16. Although
Kimmett was upset with Gill, he did not take any adverse employment action
against her – he later removed Gill from the Compromise team, but by that point
Gill had no longer wanted to be part of that team. Id. 235:17-237:8.
185-86. Denied. Furlong complained that Kimmett was rejecting all
compromises submitted by PCAs on DOR accounts. Pl.’s Opp’n Ex. 69 (Furlong
Dep.) 197:13-198:9; but see id. 341:1-20 (under cross examination, Furlong said
he could not recall whether Kimmett had approved PCA submitted compromises).
Furlong made that complaint to Roman at the request of Larry Gelber, a principal
of the Linebarger PCA. Pl.’s MSJ Ex. 55. Furlong’s and Gelber’s complaint was
sheer hyperbole, as Kimmett and his team had approved numerous compromises
submitted by the Linebarger PCA previously. Pl.’s Opp’n Ex. 131 (first two pages
of spreadsheets cataloging compromises previously approved by Kimmett’s team);
Pl.’s Opp’n Ex. 136 (same); Pl.’s Opp’n Ex. 120 (Memo detailing Kimmett’s
decision to accept compromise with debtor with financial and personal hardships);
Pl.’s Opp’n Ex. 76 (Burman Dep.) 191:16-20.
There were occasions when compromises submitted by Linebarger did not
meet the requirements for acceptance for reasons including (but not limited to) the
64
debtor failing to show a financial hardship justifying the compromise or the debtor
failing to file previously non-filed returns. See, e.g., Pl.’s Opp’n Ex. 76 (Burman
Dep.) 184:7-185:15 (rejection because of non-filed tax return periods); Pl.’s Opp’n
Ex. 66 (Bellaman Dep.) 518:12-520:1 (compromises rejected when debtors failed
to show hardship or lied about income); cf. Pl.’s Opp’n Ex. 65 (Rovelli Dep.)
21:15-21:17 (“The goal is to collect as much as possible in recognition of the
assets of the debtor.”) (emphasis added). When a compromise was rejected,
Kimmett and his team would provide the reasons for the rejection to the PCA. See,
e.g., Pl.’s Opp’n Ex. 133 (Kimmett’s assistant providing reasons for denial to
Gelber of Linebarger); Pl.’s Opp’n Ex. 69 (Furlong Dep.) 370:18-371:19 (Kimmett
would communicate reason for denials to PCAs); Pl.’s Opp’n Ex. 134 (same);
Pl.’s Opp’n Ex. 135 (Kimmett’s assistant providing reasons for denial to
AllianceOne PCA); Pl.’s Opp’n Ex. 76 (Burman Dep.) 184:7-185:7. Kimmett and
his team had a valid reason for each and every PCA-submitted compromise that
they rejected, and those reasons were catalogued in spreadsheets created by
Kimmett and his team in response to Furlong and Gelber’s complaint, and
provided to Roman and Furlong. Compare Pl.’s MSJ Ex. 55 (Gelber’s and
Furlong’s complaint and spreadsheet listing non-approved compromises), with
Pl.’s Opp’n Ex. 106 (spreadsheet created by Kimmett’s team detailing the valid
reasons for not approving the compromises on Gelber’s and Furlong’s spreadsheet)
65
and Pl.’s Opp’n Ex. 136 at 2 (list of multiple databases that were queried by
Kimmett’s team when reviewing and, when appropriate, rejecting compromises);
see also Pl.’s Opp’n Ex. 68 (Kimmett Dep. 319:23-320:3) (“[W]e went through
every compromise and made an independent decision on each compromise,
whether it should be approved or not approved.”).
Not only did Kimmett have his team provide spreadsheets detailing the
reasons why each challenged compromise had not been accepted, Pl.’s Opp’n Ex.
69 (Furlong Dep.) 352:13-353:1, 355:20-357:3), Kimmett also sent Roman a
memorandum detailing the history of the Revenue compromise issue, the
significant problems Kimmett discovered involving the compromise process, and
the procedures he had implemented to prevent those problems going forward. Pl.’s
MSJ Ex. 56; see also Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 315:12-317:13 (detailing
serious deficiencies in certain proposed DOR compromises). And although that
memo detailed allegations of wrongdoing and multiple examples of waste and
gross mismanagement discovered by Kimmett and his team, Roman characterized
those issues as “perfectly routine garden variety stuff. There’s nothing here that
alarmed me.” Pl.’s Opp’n Ex. 78 (Roman Dep.) 417:5-20.
The requirements imposed by Kimmett and his team were not arbitrary or
capricious – indeed Secretary Robert Coyne testified as to the importance of those
very requirements. See Pl.’s Opp’n Ex. 97 (Coyne Dep.) 31:20-33:7 (DOR
66
requires financial statement from debtor requesting a compromise); id. 34:10-
34:22, 37:5-37:12 (DOR requires debtor requesting a compromise to file all back
tax returns that had not previously been filed). Nevertheless, whenever Furlong
would complain to Roman about the denial of a compromise, Roman would
overrule Kimmett without giving explanation as to why. Pl.’s Opp’n Ex. 66
(Bellaman Dep.) 520:2-520:24. Even if he disagreed with Roman, Kimmett never
refused to approve a compromise if Roman instructed that it be accepted. Id.
527:11-528:4.
187. Denied. If Kimmett and his team determined that a compromise
submitted by the second placement PCA, Linebarger, could not be accepted for
various valid reasons, such compromises were not simply “closed and returned to
Revenue.” In many instances, a compromise was rejected because of Linebarger’s
failure to collect the necessary information from the taxpayer or the taxpayer’s
failure to take necessary steps such as filing any unfiled returns; but if and when
such information was subsequently provided, the compromise would be approved.
See, e.g., Pl.’s Opp’n Ex. 131 (first two pages of spreadsheet contain examples
where compromise was approved after missing information was obtained from
taxpayer). In addition, often when a compromise was not accepted, Kimmett and
his team would provide a counteroffer which, if accepted, would result in a
compromise of the debt with a higher dollar amount collected for the
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Commonwealth. See, e.g., id. (first two pages of spreadsheets reflecting examples
of compromises accepted after debtor agreed to Kimmett’s counteroffer); Pl.’s
Opp’n Ex. 69 (Furlong Dep.) 365:3-18 (Kimmett would make counteroffers that
would be accepted, thereby resolving the matter). In one notable example, Roman
recommended that Kimmett accept a compromise, but allowed Kimmett to make a
counteroffer when Kimmett so requested. The debtor accepted Kimmett’s
counteroffer, resulting in $100,000 above and beyond the original offer being
collected for the Commonwealth. Pl.’s Opp’n Ex. 137.
188. Denied. If an account was ever placed in “bad debt” because it was
not collected or compromised as a result of Linebarger’s efforts, there were other
collection options available. The case could be sent to OAG’s Tax Litigation
Section or sent back to the referring agency for prosecution. Pl.’s Opp’n Ex. 65
(Rovelli Dep.) 25:10-28:15; Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 362:22-365:11. In
addition, OAG has a contract with a third placement agency that collects debts
from those debtors who did not pay or reach a compromise in response to
Linebarger’s efforts. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 36:16-37:13.
189. Denied. Coinciding almost precisely with the time that Kimmett
reported the waste, gross mismanagement, and wrongdoing he had discovered to
Kane, Hudic, and Assistant US Attorney Brandler, Rovelli took the unusual step of
68
requesting that Roman draft a memorandum about Kimmett for Ryan’s review.
See Response to ¶¶ 138-39, supra; Pl.’s Opp’n Ex. 78 (Roman Dep.) 523:13-15.
Roman spent nearly two pages of the memo detailing the Artiva trip to
Muncie, Indiana, which Kimmett did attend once Roman denied his request that
Burman go instead. Pl.’s Opp’n Ex. 78 (Roman Dep.) 532:21-533:13. And
Roman wrote, “There is no suggestion that Tom is not working hard on the various
responsibilities assigned to him, but he has not adequately attended to the fires that
burn the hottest, nor has he sought guidance or assistance in accomplishing his
work.” Pl.’s Opp’n Ex. 138. Roman testified that there was “no question” that
Kimmett was working hard on the various responsibilities of running the
Collections unit. Pl.’s Opp’n Ex. 78 (Roman Dep.) 537:8-538:11. Roman
explained the “fires that burn the hottest” referred solely to Artiva project; there
was nothing other than Artiva that Roman felt Kimmett had not adequately
attended to. Id. 538:12-539:4. Roman said that Kimmett’s failure to seek
“guidance or assistance” specifically referred Roman’s invitation that Kimmett
draft a list of current projects so Roman could help him prioritize them. Id. 539:5-
540:13. Kimmett did not provide this list to Roman. Id. 540:14-541:12. Roman
explained his comment was not meant to suggest Kimmett was not seeking
assistance from his staff as needed. Id. 542:4-12.
69
190. Denied. Roman testified that the Revenue complaints related to
Kimmett’s communications with Revenue in which Kimmett requested
information relating to the Artvia project. Pl.’s Opp’n Ex. 78 (Roman Dep.)
542:13-543:6. Revenue’s objections to Kimmett’s requests stemmed from DOR’s
unwillingness to participate in the Artiva project, which continued even after
Kimmett was taken off the project, continued in response to Roman’s subsequent
attempts to get Revenue involved in the project, and continues even today. See
response to ¶¶ 169-71 (“Second”), supra; see also Pl.’s Opp’n Ex. 78 (Roman
Dep.) 543:7-546:17. Roman never investigated DOR’s allegations regarding
Kimmett’s communications, he simply acceded to Revenue’s request that all of
Kimmett’s communications go through him. Pl.’s Opp’n Ex. 78 (Roman Dep.)
623:7-624:4.
Roman testified that the “Staff Management Issues” dealt with Kimmett’s
“[r]ough language” “overenthusiastic conversation” “impoliteness or rudeness.”
Pl.’s Opp’n Ex. 78 (Roman Dep.) 549:16-550:15. Roman did not feel any of the
staff complaints warranted intervention by him or even discussion with Kimmett.
Id. 548:9-549:15. Roman described Ward’s criticism of Kimmett as “[k]ind of a
garden variety complaint,” which Roman never discussed with Kimmett or
Sarteschi. Id. 558:1-559:16. Insofar as Roman’s memo referenced other picayune
staff complains, Roman did not feel any required investigation or action by Roman
70
(other than to memorialize them for Rovelli when requested to do so). See id.
568:13-576:19.
In reference to Kimmett’s persistent allegations of prior mismanagement by
Keiser, Roman explained that he felt they were a non-issue because Rovelli
claimed he and Revenue previously investigated those allegations. Id. 567:5-
568:12. But Rovelli had not made any such investigation, and no one had ever
discussed this particular issue with Coyne. See Pl.’s Opp’n Ex. 65 (Rovelli Dep.)
59:19-61:22; 426:1-426:21; Pl.’s Opp’n Ex. 97 (Coyne Dep.) 60:5-62:12. But this
did not stop Roman from criticizing Kimmett for requesting such an investigation.
See also Pl.’s MSJ Ex. 45 at 1 (Roman told Kimmett to get past the fraud issue).
192. Admitted with the clarification that, according to Rovelli, at the
meeting, Ryan said that based on the report Rovelli and Roman had provided,
Ryan “would support a recommendation to terminate Tom’s employment.” Pl.’s
Opp’n Ex. 65 (Rovelli Dep.) 537:8-20. Rovelli, however, did not make such a
recommendation, notwithstanding his alleged dissatisfaction with Kimmett’s work
on Artiva, interactions with Revenue employees, and interaction with his own
staff. Id. Rovelli made the decision to terminate Kimmett’s employment only
after Kimmett filed his lawsuit, which Rovelli described as damaging Defendants’
working relationships with Kimmett. See Pl.’s MSJ SOF ¶¶ 87, 90. Rovelli took
71
particular issue with the fact that Kimmett filed a “Civil Rights Action in Federal
Court” alleging wrongdoing. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 555:6-555:16.
193. Denied insofar as Rovelli’s recommendation was consistent with the
plan that he had for Kimmett upon hiring Kimmett; namely, that Kimmett would
eventually transition into the Law unit and take on the functions and
responsibilities of a Law unit attorney. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 73:15-
74:8.
197. Denied. The employment review characterized Kimmett’s
interactions with his staff as “unsatisfactory,” not harsh. Pl.’s Opp’n Ex. 139 at
1251. Much of the paragraph criticizing Kimmett’s interaction with his staff dealt
with Kimmett’s alleged “inability to integrate Jill Keiser into the administrative
work of the section.” Id. Keiser had refused to work with Kimmett, refused to
cede her prior authority to Kimmett, and resisted Kimmett’s attempts to make
improvements in FES. Pl.’s MSJ Ex. 11 (Kimmett Decl.) ¶¶ 12-13. Kimmett
explained Keiser’s refusal to cooperate with him to both Brandwene and Roman.
Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 272:7-273:7. Yet, in this review, Roman
placed the blame for Keiser’s intransigence on Kimmett.
72
The criticisms contained in that evaluation, which was drafted by Roman in
July of 2008 and transmitted to Rovelli by Roman on August 8, 2008 (three days
before Kimmett filed suit), did not lead to a recommendation to terminate
Kimmett’s employment. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 557:3-12; Pl.’s Opp’n
Ex. 81 (Ryan Dep.) 295:19-298:9. Defendants delayed communicating their
review of Kimmett until November, 2008, see Defs.’ MSJ SOF ¶ 217-18, so
Kimmett did not know of the content of his review prior to filing his lawsuit.
199. Admitted with the clarification that Furlong and Coyne were dropped
from the Second Amended Complaint (“the SAC”), the operative complaint in this
case. The SAC added the Office of the Attorney General and Does 1-10 as
Defendants.
200. Denied insofar as the Complaint speaks for itself, and to the extent
Defendants have quoted selectively or paraphrased that document, Plaintiff refers
to the language of the Complaint in its entirety by way of response to this
paragraph.
201. Admitted that Rovelli “aborted” the planned transition of Kimmett to
the Law unit of FES after Kimmett filed his complaint. Pl.’s Opp’n Ex. 65 (Rovelli
Dep.) 546:16-546:20.
73
202. Denied as to relevance or materiality. Kimmett never participated in
any kind of litigation while serving as the Collections unit supervisor. The Law
unit attorneys only appear in bankruptcy litigation to protect the Commonwealth’s
claim as a creditor, when necessary. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 19:1-20:3,
28:16-29:12; Pl.’s Opp’n Ex. 78 (Roman Dep.) 88:1-21.
203. Denied. Although OAG produced hundreds of thousands of pages of
documents, including:
15. All documents containing or regarding communications by, between, or

among Defendants, and group of Defendants, or any individual Defendant,
relating to Mr. Kimmett.
16. All documents containing or regarding communications by, between, or

among Defendants relating to Mr. Kimmett's employment at FES, and Mr.
Kimmett's allegations relating to FES.
(see Pl.’s Opp’n Ex. 140), none provide any contemporaneous evidence that
Rovelli’s decision to abort Kimmett’s transition to the Law unit was because he
believed it was “impossible for Plaintiff to speak for the Attorney General in
litigation.”
It was possible for Kimmett to represent OAG in bankruptcy matters;
indeed, at Roman’s request, Kimmett had attended a continuing legal education
bankruptcy course. Pl.’s Opp’n Ex. 78 (Roman Dep.) 592:13-593:2; Pl.’s Opp’n
Ex. 65 (Rovelli Dep.) 539:14-540:10. Only Rovelli’s decision – based specifically
on Kimmett’s decision to file a Civil Rights Suit in Federal Court – “precluded”

74
Kimmett from representing OAG in bankruptcy cases. Pl.’s Opp’n Ex. 65 (Rovelli
Dep.) 555:6-16 (“[B]ut that he filed a Civil Rights Action in federal court,
containing the claims that it did, and allegations that it contained, totally precluded
assigning him to handle litigation in the name of the attorney general”). Because
Rovelli’s rationale is specious, and because there are no contemporaneous
documents indicating Rovelli’s rationale was ever communicated to Kimmett or
anyone else, Plaintiff disputes that Rovelli’s rationale was anything more than a
litigation tactic contrived for his deposition.
204. Denied. Rovelli understood that as Collection unit supervisor,
Kimmett would deal with DOR, and specifically Furlong, on a regular basis; yet
despite this, Rovelli did not feel it necessary to remove Kimmett from his position
as Collections unit supervisor immediately. Furlong and Kimmett continued to
interact professionally with each other even after Kimmett’s complaint was filed.
Pl.’s Opp’n Ex. 69 (Furlong Dep.) 469:21-470:11. Plaintiff further disputes
Defendants’ assertion for the reasons discussed in paragraph 203, supra.
206. Denied. Fearing for his job, and after months of experiencing
resistance and hostility because of his reports of waste, gross mismanagement, and
wrongdoing, Kimmett filed suit on August 11, 2008. His complaint detailed his
reports on the waste, wrongdoing, and gross mismanagement in OAG and DOR
75
and his attempts to have them addressed through communications both within and
outside his chain of command. Defendants took the position that the complaint
destroyed their working relationships with Kimmett because Kimmett should have
kept any complaints he had within his own chain of command. See Pl.’s MSJ SOF
¶¶ 87-88; Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 600:7-602:2. Roman did not like
Kimmett because Kimmett filed the complaint naming him as a defendant. Pl.’s
Opp’n Ex. 78 (Roman Dep.) 615:6-12. Defendants, including Rovelli, avoided
interactions with Kimmett after he filed suit. Pl.’s MSJ Ex. 11 (Kimmett Decl.) ¶
33. Shortly after the complaint was filed, Keiser confronted Bellaman with a copy
of Kimmett’s complaint and threatened her because of her close working
relationship with Kimmett and made defamatory remarks about Kimmett. Id. ¶ 34;
Pl.’s Opp’n Ex. 141; Pl.’s MSJ SOF ¶ 51.
207. Denied insofar as Roman’s typical practice at FES was to avoid face-
to-face conversations with Kimmett, and Roman would communicate with
Kimmett almost exclusively by email or memorandum. Pl.’s MSJ Ex. 11
(Kimmett Decl.) ¶ 16; Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 515:4-515:23 (Roman,
Ottenberg, and Keiser “pretty much avoided, avoided Tom any time they could”).
208. Admitted with the explanation that Roman and Keiser always
encouraged Kimmett’s subordinates to bring any complaints about Kimmett to
their attention, and certain employees found this to be a successful way to
76
challenge routine work assignments that Kimmett made to them. Pl.’s MSJ Ex. 11
(Kimmett Decl.) ¶ 18.
209. Plaintiff admits that Roman communicated that statement to him, but
denies that Roman had any real understanding of actual assignment at issue. Nale
would instigate problems with Keiser’s encouragement, refuse to answer the
phones (despite being a phone collector), and would seek refuge in Roman’s
office. Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 549:15-551:7.
211-12. Denied. Nale was encouraged by Roman and Keiser to express
complaints about Kimmett to them, see Pl.’s MSJ Ex. 11 (Kimmett Decl.) ¶ 18;
response to ¶ 209, supra, and once again Nale’s challenge to a routine work
assignment by Kimmett, see Defs.’ MSJ Ex. 26 (Roman Dep. Ex. 4), led Roman to
chastise Kimmett by email (because Roman continued to avoid face-to-face
communications with Kimmett, as had been his practice since shortly after he took
the Chief position, see Pl.’s MSJ Ex. 11 (Kimmett Decl.) ¶ 16). Nale never
approached Kimmett to discuss any concern she had with her work assignments,
see Defs.’ MSJ Ex. 26 (Roman Dep. Ex. 4) (“If Cyndi has difficulty with this
request or any questions, she could have simply gone back to Dianne or myself to
let us know or to ask for more information.”), because she had been encouraged by
77
Roman to bring any complaints about Kimmett directly to him. Pl.’s MSJ Ex. 11
(Kimmett Decl.) ¶ 18.
213-14. Denied. Furlong continued to interact professionally with
Kimmett even after Kimmett’s complaint was filed, and Furlong continued to
provide Kimmett and others who worked for him at FES any information
necessary for them to work with DOR. Pl.’s Opp’n Ex. 69 (Furlong Dep.) 469:21-
470:11.
215-16. Admitted, with the explanation that Kimmett’s email was a
respectfully worded attempt to diffuse the charged situation that Roman had
created by challenging Kimmett’s work assignment to certain Collections unit
employees. Prior to Kimmett sending his email to Roman and Sarteschi, Roman
had sent a memorandum to Kimmett criticizing work assignments that Kimmett
had given to one of his employees, Cyndi Nale. See Defs.’ MSJ Ex. 26 (Roman
Dep. Ex. 3) (Oct. 3, 2008 Memo from Roman to Kimmett). Roman had created
the “charged atmosphere” relating to Kimmett’s assigning work to his employees
by challenging those assignments in emails and memos to Kimmett, and Kimmett
wanted to make clear that his evaluation of this employee was based on his
concerns with her performance and not relating to the charged atmosphere that
Roman had created by his repeated and inappropriate criticisms of Kimmett’s
assignment of work to his employees. Defs.’ MSJ Ex. 26 (Roman Dep. Ex. 7).
78
Because Kimmett “would not want [his] comments to be misconstrued,” Kimmett
sought Roman’s and Sarteschi’s guidance and asked them if they preferred him to
“hold-off my evaluations for the immediate future or to draft them as planned.” Id.
219. Denied. Rovelli drafted the remedial plan in response to Kimmett’s
lawsuit. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 548:6-549:7.
220. Admitted that the plan required Kimmett to meet with Roman on the
1st of each month to review and discuss compromises that had been disapproved.
Pl.’s Opp’n Ex. 139 at 1252. Denied that Kimmett, though he planned to comply
with this requirement of the remedial plan, ever had the opportunity to do so
because he received the review on November 13, 2008 and was notified of his
employment termination on November 21, 2008. Pl.’s MSJ SOF ¶¶ 89, 91.
221. Admitted that, pursuant to the Remedial Plan, Kimmett continued to
provide his input as requested on matters relating to the Artiva implementation.
Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 503:8-504:12; Pl.’s MSJ SOF ¶ 89.
222-23. Admitted that, pursuant to the Remedial Plan, Kimmett took
steps to sign up for the training programs on interpersonal, managerial, and
supervisory skills. Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 504:23-506:4; Pl.’s MSJ
SOF ¶ 89.
79
224. Admitted, but because Defendants terminated Plaintiff from his
employment eight days after receiving the Remedial Plan, Defendants rendered
this part of the plan moot.
225. Admitted that, because Kimmett had not seen the evaluation prior to it
being presented to him on November 13, 2008, Kimmett informed Roman that he
would draft a written response to it, as provided by OAG’s policy. Pl.’s MSJ Ex.
64 at 1253. Admitted that it is a standard part of the evaluation process to invite
the evaluated employee to comment. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 578:17-21.
Corbett described the process of responding to one’s evaluation as akin to an
“appeal” that would get discussed at levels above the supervisor who drafted the
review. Pl.’s Opp’n Ex. 108 (Corbett Dep.) 114:1-117:2. The purpose of this
process is to provide someone who disagrees with their review to “voice” their
opinion if they believed the review was in some way unfair. Id. 117:22-118:12.
Admitted that Kimmett availed himself of this opportunity to provide a detailed
review of what was an unfair evaluation. Kimmett’s review detailed many of the
concerns of waste, wrongdoing, violation of laws, and gross mismanagement that
he had discovered and the resistance he had received in attempting to report those
through his chain of command. Pl.’s MSJ Ex. 64 at 1253 (discussing his reports of
misfeasance and malfeasance in FES); id. at 1254 (discussing his uncovering
numerous problems and improprieties in FES, OAG, and DOR); id. at 1256
80
(detailing repeated attempts to get Roman to address problems unearthed by
Kimmett); id. (stating Kimmett would “welcome an examination of the past and
current practices in the compromise area” (an area on which he was criticized in
his review) and stating his opinion that such review should be conducted by a third
party); id. at 1256-57 (discussing problems and malfeasance relating to the
compromise process that he and his team tried to address). Kimmett also attached
various memoranda and email in support of the concerns raised in his response. Id.
at 1262-1270.
226-33. Denied insofar as Kimmett’s response speaks for itself, and to
the extent Defendants have quoted selectively and out of context from that
response in these paragraphs, Plaintiff refers to the specific text of the response and
its attachments. Pl.’s MSJ Ex. 64.
234. Denied. Rovelli and the other Defendants were angry at Kimmett for
filing the lawsuit and were looking to create reasons to justify further action
against Kimmett without appearing to retaliate against him. Those actions
included Roman’s emails and memos criticizing Kimmett’s assignments to staff
and Rovelli’s remedial plan. See Pl.’s MSJ SOF ¶¶ 87-90.
235-36. Denied. Nowhere in Kimmett’s remedial plan does Kimmett
state he would not accept supervision by his superiors. See Pl.’s MSJ Ex. 64. Yet
Defendants concocted a misinterpretation of Kimmett’s response inconsistent with
81
the language actually used in that response, in support of their assertion that
Kimmett would not accept supervision. See, e.g., Pl.’s Opp’n Ex. 81 (Ryan Dep.)
322:9-335:22 (demonstrating that Ryan’s assertions relating to Kimmett’s response
are inconsistent with actual language of the response, that even Defendants’
negative review of Kimmett did not suggest he failed to accept supervision, and
that Ryan specifically took issue with Kimmett’s request for an independent
evaluation made in the response).
Indeed, Kimmett always obeyed any instruction he received from Roman or
Rovelli, even if he happened to disagree with their disposition of an issue. See Pl.’s
Opp’n Ex. 66 (Bellaman Dep.) 527:11-528:4; Pl.’s Opp’n Ex. 76 (Burman Dep.)
248:9-250:7; Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 573:18-20 (“Again, when directed,
[Kimmett] did what he was told.”). Even Roman’s 2007-08 review of Kimmett,
though (unfairly) critical of Kimmett in several respects, never mentions any
insubordination or refusal by Kimmett to accept supervision. See Pl.’s Opp’n Ex.
81 (Ryan Dep.) 331:7-332:22; id. 335:16-22 (stating there was nothing in
Kimmett’s evaluation indicating that Kimmett would not accept direction or
supervision); see also Pl.’s Opp’n Ex. 138 (Roman’s memo to Rovelli does not
mention any refusal by Kimmett to accept supervision). Corbett was never
informed or aware of any examples of Kimmett not taking direction or supervision
from his chain of command. Pl.’s Opp’n Ex. 108 (Corbett Dep.) 247:2-248:4.
82
237. Denied. Kimmett’s statement was intended to request an independent
review of the serious problems that he found prevalent in FES, as he had done
many times before. See, e.g., Pl.’s Opp’n Ex. 130 at 11 (“I believe that
mismanagement has occurred during [Keiser’s] tenure and I think a thorough
investigation should have been conducted to ensure that no wrongdoing occurred
to protect the Office and the General.”). Kimmett never made any statement
suggesting he would not meet with Roman to discuss compromises as provided in
the remedial plan, and indeed Kimmett planned to do so, but was never given the
opportunity. Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 501:25-503:7. Kimmett had
always obeyed Roman’s instructions relating to compromises previously. Pl.’s
Opp’n Ex. 66 (Bellaman Dep.) 527:11-528:4; Pl.’s Opp’n Ex. 76 (Burman Dep.)
248:9-250:7.
238. Denied. See response to ¶ 235-36, 237, supra.
239. Denied. Kimmett had been taken off the Artiva project months
earlier, Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 561:3-13, yet he continued to provide
any input or information relating to that project when it was requested of him.
Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 503:8-504:12. There were no examples of
Kimmett failing to provide requested input relating to that project after his receipt
of the remedial plan. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 590:9-591:22.
83
240-41. Denied. Rovelli believed that the Kimmett’s lawsuit had a
“belligerent tone” and that Kimmett’s response to his evaluation was “unmeasured
and intemperate.” Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 578:1-15. Insofar as Rovelli
“believed” Kimmett’s tone was “as inconsistent with cooperation as he could
imagine,” Rovelli never attempted to discuss his belief with Kimmett; indeed,
Rovelli never discussed with Kimmett any of Rovelli’s “beliefs” or interpretations
of Kimmett’s response. Id. 584:5-585:6. Indeed, no one ever discussed Kimmett’s
response with him; Rovelli had decided that “there was nothing [Kimmett] could
say sincerely after writing this response that would leave me to conclude that he
would accept supervision or cooperate in remediation.” Id. 585:8-12. Rovelli’s
mind was made up when Kimmett continued to defend his reports and press for an
independent investigation into the most serious problems he had discovered at FES
and DOR. See, e.g., Pl.’s Opp’n Ex. 81 (Ryan Dep.) 327:8-12 (Ryan took issue
with Kimmett’s call for an independent investigation in the Response); Pl.’s Opp’n
Ex. 108 (Corbett Dep.) 237:14-238:8 (Corbett first heard of Kimmett’s call for
independent investigation when reviewing the response).
243-44. Admitted, with the explanation that Ryan did not know that
Kimmett had already begun to take steps to comply with the remedial plan, see
Pl.’s MSJ SOF ¶ 89, and had he known that, it might have affected Ryan’s
84
agreement to terminate Kimmett’s employment. See Pl.’s Opp’n Ex. 81 (Ryan
Dep.) 333:15-335:15. Corbett made clear that his decision to terminate Kimmett’s
employment was based on Rovelli’s recommendation, not his own review of the
issues. Pl.’s Opp’n Ex. 108 (Corbett Dep.) 232:15-233:19; 243:10-245:15.
246. Admitted that Kimmett was summarily dismissed from his
employment on November 21, 2008 and was escorted through FES’s offices and
past his co-workers and employees by an agent from the Criminal Division, who
watched Kimmett pack his things and escorted Kimmett to the staircase to leave
the building. Pl.’s MSJ SOF ¶ 91.
Dated: August 19, 2010 Respectfully submitted,
/s/

(202) 730-1300 (tel)
(202) 730-1301 (fax)
85
Neil A. Grover (PA 53142)

(groverlaw@ix.netcom.com)
2201 N. 2nd St.
Counsel for Plaintiff Thomas D. Kimmett
86
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS D. KIMMETT
Plaintiff, Civil Action No. 4:08-cv-1496
v. (Judge Jones)
THE PENNSYLVANIA OFFICE (Magistrate Judge Blewitt)

OF THE ATTORNEY GENERAL
ET AL., Electronically Filed
Defendants.
CERTIFICATE OF SERVICE
I hereby certify that on this 19th day of August, 2010, I caused a true and
correct copy of the foregoing Plaintiff’s Counterstatement of Material Facts in
Dispute to be sent to the following:
VIA ECF
Susan Forney, Esq. Donald Bailey, Esq,

Maryanne Lewis, Esq. 4311 North 6th Street
Office of Attorney General Harrisburg, PA 17110
15th Floor, Strawberry Square AdrienneMamma6@aol.com
Phone: (717) 787-9831 Counsel for Sherry Bellaman
Fax: (717) 772-4526
sforney@attorneygeneral.gov
mlewis@attorneygeneral.gov
Counsel for Defendants

Dated: August 19, 2010 Respectfully submitted,
/s/
(202) 730-1300 (tel)
(202) 730-1301 (fax)

Kimmett V Corbett - Counter Statement To Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Waste Wrongdoing

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Kimmett V Corbett - Counter Statement To Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Waste Wrongdoing

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Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 1 of 89

IN THE UNITED STATES DISTRICT COURT

Plaintiff, Civil Action No. 4:08-cv-1496

THE PENNSYLVANIA OFFICE (Magistrate Judge Blewitt)

Charles T. Kimmett (pro hac vice)

Neil A. Grover (PA 53142)

August 19, 2010 Counsel for Plaintiff Thomas D. Kimmett

1. Plaintiff admits that the facts stated in paragraph 1 are undisputed.

2. Plaintiff admits that the facts stated in paragraph 2 are undisputed.

3. Plaintiff admits that the facts stated in paragraph 3 are undisputed.

4. Plaintiff admits that the facts stated in paragraph 4 are undisputed.

5. Denied. The organizational changes do bear on the case insofar as

they demonstrate that Kimmett’s position as the supervisor of FES’s

Administrative Collections unit (“Collections unit”) was not a position that

response to ¶ 58, infra.

6. Plaintiff admits that the facts stated in paragraph 6 are undisputed.

7. Plaintiff admits that the facts stated in paragraph 7 are undisputed.

8. Plaintiff is without information sufficient to confirm or dispute the

validity of this statement.

9. Plaintiff admits that the facts stated in paragraph 9 are undisputed.

10. Denied. The “collection matters” handled by the attorneys on the

claims, dunning letters, responding to debtor’s calls, managing the relationship

11. Admitted, with the clarification that the Department of Revenue

(Rovelli Dep.) 18:10-22.

addition to the tasks described by Defendants, Administrative unit employees also

or who wish to enter into a compromise involving a compromised amount of less

money” because Keiser’s resumption of the practice of referring cases to PCAs

after payment arrangements or compromises had already been reached with

¶¶ 20-21 (Keiser and another employee trashed accounting documentation prior to

represents a change in the process that occurred sometime prior to Kimmett’s

was made because DOR became increasingly concerned about mismanagement

their accounts away from FES).

(Furlong Dep.) 28:4-31:1.

entitled to receive a commission. For example, by contract (as revised by

(Bellaman Dep.) 416:1-15. In addition, if a PCA receives a case that is being

(Bellaman Dep.) 393:10-19; 530:8-12. And where a PCA was unsuccessful in

debt for collection, it is not entitled to a commission. Pl.’s Opp’n Ex. 67

(Ottenberg Dep.) 166:23-167:18; Pl.’s Opp’n Ex. 70 (Gill Dep.) 53:7-20.

18-19. Denied, insofar as “pay directs” is a term that also includes

who were sending payments directly to OAG in satisfaction of debts or as part of a

proposed compromise. See Pl.’s Opp’n Ex. 72.

20. Denied. There are a number of circumstances in which a PCA would

response to paragraph 17, supra.

23. Denied. Although PCAs, when attempting to collect a debt, may

respond to a debtors request for a compromise, a PCA is not supposed to be the

27. Denied. As a Clerical Supervisor from 1992 or 1993 until she

(Brandwene Dep.) 24:17-21. Brandwene gave Keiser significant autonomy to run

the Collections unit. Pl’s Opp’n Ex. 71 (Brandwene Dep.) 37:16-38:4. As

responsibility. Pl.’s Opp’n Ex. 71 (Brandwene Dep.) 38:15-39:5.

PCAs’ holding period began or after it expired. Id. 56:4-7.

30. Denied. The Comptroller’s office noticed fund flow irregularities in

Comptroller’s office. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 62:5-65:4. The

Comptroller’s office had never previously audited FES. Id. 84:15-85:20.

took steps to render information documenting the pay-direct fund flows

already been received from the debtor. Id. 415:9-419:2.

32. Defendants did not include a paragraph 32.

Gill abruptly resigned, Sherri Phillips, OAG’s Director of Management Services,

(Rovelli Dep.) 62:5-63:9.

Opp’n Ex. 68 (Kimmett Dep.) 218:17-219:5.

Opp’n Ex. 66 (Bellaman Dep.) 65:25-66:11.

36-37. Denied. Once Kimmett was at FES, Ottenberg was rarely, if

to Kimmett’s arrival, Ottenberg, at Kimmett’s request and direction, ran various