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THOMAS D. KIMMETT
v. (Judge Jones)
Defendants.
PLAINTIFF’S COUNTERSTATEMENT OF
MATERIAL FACTS IN DISPUTE
involved legal duties and responsibilities. See Pl.’s MSJ SOF ¶ 13, 27, 29;
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
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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.
(“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
12. Denied that this fully describes the tasks of the Collections Unit. In
handle calls from debtors who wish to make payment arrangements for their debt
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
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.
the audit).
13. Plaintiff admits that the facts stated in paragraph 13 are undisputed.
14. Plaintiff admits that the facts stated in paragraph 14 are undisputed.
15. Denied. DOR currently also refers accounts directly to PCAs, which
arrival at FES. Pl.’s Opp’n Ex. 67 (Ottenberg Dep.) 195:12-196:20. The change
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
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
17. Denied. There are certain circumstances in which PCAs are not
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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
appealed by a taxpayer, it knows it must return the case to FES. Pl.’s Opp’n Ex. 66
obtaining payment during the contractual time period during which it holds the
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
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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
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.
22. Plaintiff admits that the facts stated in paragraph 22 are undisputed.
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.
24. Plaintiff admits that the facts stated in paragraph 24 are undisputed.
25. Plaintiff admits that the facts stated in paragraph 25 are undisputed.
26. Plaintiff admits that the facts stated in paragraph 26 are undisputed.
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
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
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
29. Plaintiff admits that the facts stated in paragraph 29 are undisputed.
the Collections unit, which lead to an audit of the Collections unit by the
31. Denied. Keiser did not attempt to “pick up Gill’s work” but instead
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
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33. Denied. The Comptroller’s office got involved because, shortly after
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
34. Denied. Keiser did not cooperate with Ottenberg in that effort. Pl.’s
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
ever, at FES’s offices. Pl.’s Opp’n Ex. 66 (Bellaman Dep.) 438:2-10. Subsequent
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
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).
38. Plaintiff admits that the facts stated in paragraph 38 are undisputed.
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
40. Plaintiff admits that the facts stated in paragraph 40 are undisputed.
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
immediately prior to or after the debtor had already made payment, resulting in
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42. Plaintiff admits that the facts stated in paragraph 42 are undisputed.
43. Plaintiff admits that the facts stated in paragraph 43 are undisputed.
44. Plaintiff admits that the facts stated in paragraph 44 are undisputed.
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.
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
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
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.)
collections agencies after “big money” had already been collected. See Pl.’s Opp’n
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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major issue and a major problem,” leading him to replace her. Pl.’s Opp’n Ex. 65
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
51. Plaintiff admits that the facts stated in paragraph 51 are undisputed.
52. Plaintiff admits that the facts stated in paragraph 52 are undisputed.
53. Plaintiff admits that the facts stated in paragraph 53 are undisputed.
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.)
was not an attorney position, Kimmett, who had been in Revenue for the past 10
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55. Plaintiff admits that the facts stated in paragraph 55 are undisputed.
Kimmett to take the position at FES, that the Chief position would be a likely
Rovelli informed Kimmett that the Collections unit supervisor position “brought
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.
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
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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,
represent Kimmett’s job duties as Collection unit supervisor. The record – most
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.
collections, managing fund flows, and system redesign. Pl.’s MSJ SOF ¶ 27.
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
legal work,” Defs.’ MSJ Ex. 27 (Sarteschi Decl. ¶ 8), the category on Kimmett’s
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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
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
by each employee categorized as DAG IV, but is not meant to suggest that each
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
Classification. Because Rovelli recognized that there was little “genuinely legal
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
60. Plaintiff admits that the facts stated in paragraph 60 are undisputed.
61. Plaintiff admits that the facts stated in paragraph 61 are undisputed.
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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62. Plaintiff admits that the facts stated in paragraph 62 are undisputed.
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
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).
64. Plaintiff admits that the facts stated in paragraph 64 are undisputed.
66. Plaintiff admits that the facts stated in paragraph 66 are undisputed.
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
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
Pl’s MSJ SOF ¶ 30; Rovelli Dep. 138:14-139:16. OAG has a separate Internal
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issues, and violations of office policy. Pl’s MSJ SOF ¶ 30. And although
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
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
PCA compliance with the terms of their contracts with OAG, his superiors refused
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
71. Plaintiff admits that the facts stated in paragraph 71 are undisputed.
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
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
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
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.
75. Plaintiff admits that the facts stated in paragraph 75 are undisputed.
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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
78. Plaintiff admits that the facts stated in paragraph 78 are undisputed.
79. Plaintiff admits that the facts stated in paragraph 79 are undisputed.
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
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
mismanagement – reports made outside the scope of his job duties – were not legal
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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.
81. Plaintiff admits that the facts stated in paragraph 81 are undisputed.
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
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.
83. Denied, insofar Kimmett informed not only Brandwene, but also
Ottenberg, Rovelli, Ryan, Nutt, Hudic, Kane, Brandler, and the FBI agent with
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whom he has had several meetings, of the wrongdoing that was alleged by
84. Plaintiff admits that the facts stated in paragraph 84 are undisputed.
85. Plaintiff admits that the facts stated in paragraph 85 are undisputed.
86. Plaintiff admits that the facts stated in paragraph 86 are undisputed.
87. Plaintiff admits that the facts stated in paragraph 87 are undisputed.
88. Plaintiff admits that the facts stated in paragraph 88 are undisputed.
89. Denied. After confirming for Kimmett that the issues reported to him
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
would know that the information was with DOR, but was not going to be
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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
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
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
the FES operation and explained what he had done after Gill’s resignation.
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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
95. Plaintiff admits that the facts stated in paragraph 95 are undisputed.
96. Plaintiff admits that the facts stated in paragraph 96 are undisputed.
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
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
[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.
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99. Plaintiff admits that the facts stated in paragraph 99 are undisputed.
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
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.)
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
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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.)
375:3-13, and he was criticized by Roman for his focus on resolving such issues.
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
misconduct, but denied insofar as Kimmett was never able to determine why a
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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.
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.
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
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all safeguards instituted by Kimmett by going directly to Keiser. Pl.’s Opp’n Ex.
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-
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
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.
109. Plaintiff admits that the facts stated in paragraph 109 are undisputed.
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110. Plaintiff admits that the facts stated in paragraph 110 are undisputed.
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
paid to the Linebarger PCA, despite the fact that the payment was received because
Furlong initially agreed with Kimmett’s action withholding that commission, Pl.’s
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.
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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.
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
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.
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
implement this solution because his duties and responsibilities did not include any
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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
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
115. Plaintiff admits that the facts stated in paragraph 115 are undisputed.
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
wrongdoing in FES were inconsistent with OAG’s “culture.” Pl.’s MSJ SOF ¶ 47;
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118. Plaintiff admits that the facts stated in paragraph 118 are undisputed.
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.
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
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
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had discovered “gross mismanagement” at FES, though Ottenberg did not believe
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
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
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
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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
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
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.
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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.
123. Plaintiff admits that the facts stated in paragraph 123 are undisputed.
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.
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,
command), Ryan (leapfrogging his direct chain of command), Furlong and persons
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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
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
Opp’n Ex. 73 at 3-4 (referencing July 1, 2008 conference call discussing that
issue)).
relating to compromises with Mr. Roman, including (in addition to those listed by
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-
processed); pressure by Revenue and PCAs to approve compromises that had been
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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
compromise issue to Mr. Roman, but also had multiple communications with
Revenue personnel, including but not limited to Furlong regarding that issue.
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.
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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
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
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
compromises had not been approved, and disproving PCA’s and Furlong’s claim
compromises for failing to meet required criteria were correct, despite challenges
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members of his team had valid reasons for recommending that the compromise not
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
were likely illegal, and that had been routinely tolerated by FES prior to Kimmett’s
130-31. Denied. Kimmett met with Nutt to detail the waste, wrongdoing,
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
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Kimmett’s request). Because of this lack of support and fear for his job security,
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
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]
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
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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
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.
134. Plaintiff admits that the facts stated in paragraph 134 are undisputed.
135. Plaintiff admits that the facts stated in paragraph 135 are undisputed.
136. Plaintiff admits that the facts stated in paragraph 136 are undisputed.
137. Denied insofar as Kimmett’s attorney had conversations with the FBI
prior to filing suit. Subsequent to his communications with the Assistant United
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States Attorney Bruce Brandler, Kimmett reached out to an attorney for personal
with the FBI agent in the summer of 2008, and the FBI has met with Kimmett
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
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
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.)
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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
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
at FES with persons outside of OAG, including Kane and AUSA Brandler.
140. Plaintiff admits that the facts stated in paragraph 140 are undisputed.
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
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problems Kimmett had identified at FES – and Nutt decided to avoid the
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
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
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,
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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
Dep.) 179:7-180:2.
145. Plaintiff admits that the facts stated in paragraph 145 are undisputed.
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
148. Plaintiff admits that the facts stated in paragraph 148 are undisputed.
149. Plaintiff admits that the facts stated in paragraph 149 are undisputed.
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-
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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
collections staff for such information. See Pl.’s Opp’n Ex. 70 (Gill Dep.) 284:11-
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.
information Kimmett did not provide in timely fashion. Pl.’s Opp’n Ex. 114
expertise. See response to ¶ 150, supra. Gunn received the requested action code
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information from Bellaman, who knew the codes through her years of work as an
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
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.
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
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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
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.
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.
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.
inappropriate proposed compromises. Pl.’s MSJ Ex. 47. Around this time,
Burman had informed Kimmett that Furlong was “playing with accounts” that had
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the debtor. Pl.’s Opp’n Ex. 118; Pl.’s Opp’n Ex. 76 (Burman Dep.) 215:5-223:14.
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
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
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.
scheduled dinner at an event. Pl.’s Opp’n Ex. 78 (Roman Dep.) 531:6-21, 533:7-
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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
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.
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
Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 585:2-588:16; Pl.’s MSJ Ex. 64 at 1260-61,
1268-70.
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
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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
timely make business decisions.” Defs.’ MSJ SOF ¶ 158. Gunn testified: “When
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
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-
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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
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
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
departure, there were project delays relating to writing technical interfaces with the
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162. Plaintiff admits that the facts stated in paragraph 162 are undisputed.
was not providing information about dunning letters, “particularly the variables
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
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
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
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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
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.
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
was made after Kimmett filed his lawsuit, publicly exposing the waste,
wrongdoing, and gross mismanagement he had discovered. Pl.’s MSJ SOF ¶¶ 87-
91.
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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:
him, and Kimmett’s attempts to get DOR to participate in the Artiva software
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,
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
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malfeasance within DOR. For example, Susan Cruz provided Kimmett with
information, including many “no fee report” spreadsheets, showing that DOR was
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
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.)
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
Kimmett’s efforts to work with DOR on the Artiva project, Coyne labeled
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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,
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
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).
“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
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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.)
Because Kimmett would report the waste and malfeasance he learned from
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
Roman claims to have received complaints from Collections unit staff that
complaints were never of enough significance that Roman ever felt the need to
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discuss them with Kimmett, his subordinate. See id. 547:10-549:15; see also Pl.’s
two employees ever complained about Kimmett, and neither complaint was
173-74. Denied. As part of this litigation, Cyndi Nale has made her
“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
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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
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
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.
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
175. Plaintiff admits that the facts stated in paragraph 175 are undisputed.
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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
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
the Artiva project that Ward unilaterally decided not to complete. Id. 546:9-547:2;
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.
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personnel. The personnel says, no, it’s an appropriate request…. [A]t that point I
courtesy, Pl.’s Opp’n Ex. 111 (Sarteschi Dep.) 152:10-153:15, and Kimmett
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
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.
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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
164:6. Sarteschi did not believe that Goho’s complaint about Kimmett rose to the
164:7-11.
179. Plaintiff admits that the facts stated in paragraph 179 are undisputed.
180. Plaintiff admits that the facts stated in paragraph 180 are undisputed.
181. Plaintiff admits that the facts stated in paragraph 181 are undisputed.
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
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.)
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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
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
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);
meet the requirements for acceptance for reasons including (but not limited to) the
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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
to show hardship or lied about income); cf. Pl.’s Opp’n Ex. 65 (Rovelli Dep.)
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
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
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
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)
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and Pl.’s Opp’n Ex. 136 at 2 (list of multiple databases that were queried by
see also Pl.’s Opp’n Ex. 68 (Kimmett Dep. 319:23-320:3) (“[W]e went through
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.
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
those issues as “perfectly routine garden variety stuff. There’s nothing here that
The requirements imposed by Kimmett and his team were not arbitrary or
very requirements. See Pl.’s Opp’n Ex. 97 (Coyne Dep.) 31:20-33:7 (DOR
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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
527:11-528:4.
submitted by the second placement PCA, Linebarger, could not be accepted for
various valid reasons, such compromises were not simply “closed and returned to
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
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
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
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
counteroffer, resulting in $100,000 above and beyond the original offer being
188. Denied. If an account was ever placed in “bad debt” because it was
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
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
189. Denied. Coinciding almost precisely with the time that Kimmett
Kane, Hudic, and Assistant US Attorney Brandler, Rovelli took the unusual step of
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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
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
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
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
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information relating to the Artvia project. Pl.’s Opp’n Ex. 78 (Roman Dep.)
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
623:7-624:4.
Roman testified that the “Staff Management Issues” dealt with Kimmett’s
Pl.’s Opp’n Ex. 78 (Roman Dep.) 549:16-550:15. Roman did not feel any of the
staff complains, Roman did not feel any required investigation or action by Roman
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(other than to memorialize them for Rovelli when requested to do so). See id.
568:13-576:19.
Keiser, Roman explained that he felt they were a non-issue because Rovelli
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).
191. Plaintiff admits that the facts stated in paragraph 191 are undisputed.
meeting, Ryan said that based on the report Rovelli and Roman had provided,
Opp’n Ex. 65 (Rovelli Dep.) 537:8-20. Rovelli, however, did not make such a
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
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particular issue with the fact that Kimmett filed a “Civil Rights Action in Federal
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.
194. Plaintiff admits that the facts stated in paragraph 194 are undisputed.
195. Plaintiff admits that the facts stated in paragraph 195 are undisputed.
196. Plaintiff admits that the facts stated in paragraph 196 are undisputed.
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
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
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July of 2008 and transmitted to Rovelli by Roman on August 8, 2008 (three days
Kimmett’s employment. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 557:3-12; Pl.’s Opp’n
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.
198. Plaintiff admits that the facts stated in paragraph 198 are undisputed.
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
paragraph.
the Law unit of FES after Kimmett filed his complaint. Pl.’s Opp’n Ex. 65 (Rovelli
Dep.) 546:16-546:20.
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any kind of litigation while serving as the Collections unit supervisor. The Law
claim as a creditor, when necessary. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 19:1-20:3,
documents, including:
(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.”
bankruptcy course. Pl.’s Opp’n Ex. 78 (Roman Dep.) 592:13-593:2; Pl.’s Opp’n
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
anyone else, Plaintiff disputes that Rovelli’s rationale was anything more than a
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
interact professionally with each other even after Kimmett’s complaint was filed.
205. Plaintiff admits that the facts stated in paragraph 205 are undisputed.
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
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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
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
relationship with Kimmett and made defamatory remarks about Kimmett. Id. ¶ 34;
207. Denied insofar as Roman’s typical practice at FES was to avoid face-
(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
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challenge routine work assignments that Kimmett made to them. Pl.’s MSJ Ex. 11
209. Plaintiff admits that Roman communicated that statement to him, but
denies that Roman had any real understanding of actual assignment at issue. Nale
phones (despite being a phone collector), and would seek refuge in Roman’s
210. Plaintiff admits that the facts stated in paragraph 210 are undisputed.
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
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
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Roman to bring any complaints about Kimmett directly to him. Pl.’s MSJ Ex. 11
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.
respectfully worded attempt to diffuse the charged situation that Roman had
employees. Prior to Kimmett sending his email to Roman and Sarteschi, Roman
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
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
assignment of work to his employees. Defs.’ MSJ Ex. 26 (Roman Dep. Ex. 7).
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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.
217. Plaintiff admits that the facts stated in paragraph 217 are undisputed.
218. Plaintiff admits that the facts stated in paragraph 218 are undisputed.
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.
Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 503:8-504:12; Pl.’s MSJ SOF ¶ 89.
supervisory skills. Pl.’s Opp’n Ex. 68 (Kimmett Dep.) 504:23-506:4; Pl.’s MSJ
SOF ¶ 89.
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employment eight days after receiving the Remedial Plan, Defendants rendered
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.
the evaluated employee to comment. Pl.’s Opp’n Ex. 65 (Rovelli Dep.) 578:17-21.
“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.
review of what was an unfair evaluation. Kimmett’s review detailed many of the
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
numerous problems and improprieties in FES, OAG, and DOR); id. at 1256
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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
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.
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
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
state he would not accept supervision by his superiors. See Pl.’s MSJ Ex. 64. Yet
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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.)
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
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,
supervision); see also Pl.’s Opp’n Ex. 138 (Roman’s memo to Rovelli does not
from his chain of command. Pl.’s Opp’n Ex. 108 (Corbett Dep.) 247:2-248:4.
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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
to protect the Office and the General.”). Kimmett never made any statement
the remedial plan, and indeed Kimmett planned to do so, but was never given the
Opp’n Ex. 66 (Bellaman Dep.) 527:11-528:4; Pl.’s Opp’n Ex. 76 (Burman Dep.)
248:9-250:7.
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.
Kimmett failing to provide requested input relating to that project after his receipt
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“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
imagine,” Rovelli never attempted to discuss his belief with Kimmett; indeed,
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
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
242. Plaintiff admits that the facts stated in paragraph 242 are undisputed.
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
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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
245. Plaintiff admits that the facts stated in paragraph 245 are undisputed.
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
/s/
Charles T. Kimmett (pro hac vice)
(CKimmett@wiltshiregrannis.com)
Jacinda Lanum (pro hac vice)
(JLanum@wiltshiregrannis.com)
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THOMAS D. KIMMETT
v. (Judge Jones)
Defendants.
CERTIFICATE OF SERVICE
I hereby certify that on this 19th day of August, 2010, I caused a true and
VIA ECF
/s/
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)