Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case...

8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

THOMAS D. KIMMETT

Plaintiff,

v.

THE PENNSYLVANIA OFFICE

OF THE ATTORNEY GENERAL

ET AL.,

Defendants.

Civil Action No. 4:08-cv-1496

(Judge Jones)

(Magistrate Judge Blewitt)

ELECTRONICALLY FILED

PLAINTIFFS COUNTERSTATEMENT OF

MATERIAL FACTS IN DISPUTE

Charles T. Kimmett (pro hac vice)([email protected])

Jacinda Lanum (pro hac vice)([email protected])

WILTSHIRE & GRANNIS LLP1200 Eighteenth Street NW, Suite 1200

Washington, DC 20036

(202) 730-1300 (tel)

(202) 730-1301 (fax)

Neil A. Grover (PA 53142)

([email protected])

2201 N. 2nd St.

Harrisburg, PA 17110

August 19, 2010 Counsel for Plaintiff Thomas D. Kimmett

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


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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 Kimmetts position as the supervisor of FESs

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 Oppn 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 debtors 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--vis the FES Law units involvement. Pl.s Oppn 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 Oppn Ex. 66 (Bellaman Dep.) 413:2-420:10 (expressing

concerns that, after Kimmetts departure, PCAs were once again receiving free

money because Keisers 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 OAGs 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 Kimmetts

arrival at FES. Pl.s Oppn 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 Oppn Ex. 68 (Kimmett

Dep.) 237:22-239:13; Pl.s Oppn 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 Kimmetts arrival at FES. See Pl.s Oppn 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 Oppn Ex. 69 (Furlong

Dep.) 401:8-403:16; Pl.s Oppn 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 Oppn 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 Oppn 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 Oppn Ex. 67

(Ottenberg Dep.) 166:23-167:18; Pl.s Oppn 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

Oppn Ex. 67 (Ottenberg Dep.) 14:23-15:6; Pl.s Oppn 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 Oppn 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 Oppn 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 Oppn Ex. 70 (Gill Dep.) 20:13-21:15. Prior to Gills

departure (and until Kimmetts arrival in late September 2006), Keiser was the

Collections unit supervisor, a position she had held for years. Pls Oppn Ex. 71

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

the Collections unit. Pls Oppn Ex. 71 (Brandwene Dep.) 37:16-38:4. As

Collections unit supervisor, Keiser was Gills supervisor. Pl.s Oppn Ex. 70 (Gill

Dep.) 12:3-7, 19:11-16. What Gill did on a day-to-day basis was Keisers

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

28. Denied. Gill reported to Keiser and Keiser was responsible for Gills

activities. See response to paragraph 27, supra. Keiser would review the pay

direct reports prepared by Gill. Pl.s Oppn Ex. 71 (Brandwene Dep.) 43:11-44:2.

Gill would discuss discrepancies in the accounts with Keiser. Pl.s Oppn 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 Comptrollers office noticed fund flow irregularities in

the Collections unit, which lead to an audit of the Collections unit by the

Comptrollers office. Pl.s Oppn Ex. 65 (Rovelli Dep.) 62:5-65:4. The

Comptrollers office had never previously audited FES. Id. 84:15-85:20.

31. Denied. Keiser did not attempt to pick up Gills 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 Comptrollers audit,

Keiser, with the assistance of Mark Santanna, a PCA employee who worked at

FESs offices, trashed the backup documentation relating to the pay direct fund

flows that Gill had maintained in FES. Id. Keiser also switched Gills 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 Oppn 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 Comptrollers office got involved because, shortly after

Gill abruptly resigned, Sherri Phillips, OAGs 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 Oppn Ex. 65

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

34. Denied. Keiser did not cooperate with Ottenberg in that effort. Pl.s

Oppn Ex. 68 (Kimmett Dep.) 218:17-219:5.

35. Denied. The issues that came to light after Gills 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 Oppn Ex. 74 (Keiser Dep.) 149:4-151:7; Pl.s

Oppn Ex. 75. This needed to be done to reset the balance due to zero. Pl.s

Oppn Ex. 66 (Bellaman Dep.) 65:25-66:11.

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

ever, at FESs offices. Pl.s Oppn Ex. 66 (Bellaman Dep.) 438:2-10. Subsequent

to Kimmetts arrival, Ottenberg, at Kimmetts 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

Kimmetts hunch about overpayments was correct); Pl.s Oppn 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 Oppn Ex. 76 (Burman Dep.) 171:22-173:2 (monthly report run

at Kimmetts 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; Pls MSJ Ex. 27; Pl.s Oppn 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 Oppn Ex. 143 (Im 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 PCAs 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, Kimmetts superiors refused Kimmetts 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

Oppn Ex. 77; Pl.s Oppn Ex. 78 (Roman Dep.) 327:16-330:6; Pl.s Oppn Ex. 79.

47. Denied. Ottenbergs 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 Oppn 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 Oppn Ex. 66 (Bellaman Dep.) 415:9-419:2 (testifying that Keiser engaged in

this practice prior to Kimmetts 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 Oppn Ex. 66 (Bellaman Dep.)

394:3-15 (I said, Tom, why are we paying commission on these accounts when

[the PCAs] didnt 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 thats when he [Kimmett] contacted Doug [Ottenberg] to get that exceptions

report started). Kimmetts team verified the information in the exceptions report.

Pl.s Oppn Ex. 68 (Kimmett Dep.) 454:4-16; Pl.s Oppn 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 Oppn

Ex. 80 at TDK 0002007; Pl.s Oppn 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 Oppn Ex. 68 (Kimmett

Dep.) 457:5-458:7.



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48. Denied. In the wake of Gills 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 Oppn 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 Oppn

Ex. 65 (Rovelli Dep.) 69:18-71:3. In Rovellis 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 Oppn

Ex. 71 (Brandwene Dep.) 62:11-63:15; see Pl.s Oppn 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 Oppn 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 Oppn 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 Oppn 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 Oppn Ex. 68 (Kimmett Dep.) 148:5-11.

58. Denied. Although Kimmett was categorized as Deputy Attorney

General IV (DAG IV), Kimmetts 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

Oppn 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 Kimmetts predecessor

in that position, Keiser, nor his successor, Ottenberg, are lawyers. See Pl.s Oppn

Ex. 74 (Keiser Dep.) 6:16-7:3; Pl.s Oppn 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 Comptrollers 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 positionper se.

59. Denied. Exhibit 2 to Bruce Sarteschis Declaration (hereinafter

DAG IV Classification or Classification) does not and is not intended to

represent Kimmetts job duties as Collection unit supervisor. The record most

notably the testimony of Defendant Rovelli demonstrates that Kimmetts duties

and responsibilities as FESs Collections unit supervisor were not and were never

intended to be those included on the Classifications laundry list. See Pl.s MSJ

SOF 27-32.

Kimmetts tasks and responsibilities included managing administrative

collections, managing fund flows, and system redesign. Pl.s MSJ SOF 27.

Kimmetts 2006-07 performance evaluation further demonstrated that Kimmetts

duties did not involve the long list of legal responsibilities in the Classification, but

were in fact primarily administrative. Pl.s Oppn 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 Kimmetts

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 attorneys work assignments. See response to 80, supra

(citing Pl.s Oppn Ex. 83 (2006-07 evaluation) at 4501 (items I.F & I.G); Pls

MSJ Ex. 63 (2007-08 evaluation) at 4474 (items I.F & I.G); Pl.s Oppn Ex. 65

(Rovelli Dep.) 390:3-6).

The DAG IV Classification is not a list of Kimmetts 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.

Rovellis testimony on Kimmetts 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 Oppn 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.1Id. 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 Oppn 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, Kimmetts job

duties as Collections unit supervisor involved only part of three of the thirteenexemplar functions listed in the exhibit: supervising clerical staff (part of example6), 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 (andwas never expected to) act as a legal expert (4), draft formal opinions (7), examineabstract of titles (9), review criminal investigative reports (10), or direct criminalinvestigations 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 Pls 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 Keisers 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. Pls

MSJ SOF 27; Pl.s Oppn Ex. 65 (Rovelli Dep.) 140:19-22; 315:6-7. Kimmett

was not expected to audit FES; auditing functions are provided by OAGs

Comptrollers office. Pl.s MSJ SOF 28. Kimmett was expected to utilize the

findings from the ongoing Comptrollers audit to implement improvements in

FESs fund flow systems. Pl.s Oppn 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.

Pls 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. Pls MSJ SOF 30. And although

Kimmetts 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 attorneys work

assignment. Pl.s Oppn Ex. 83 at 4502 (item II.A); Pls MSJ Ex. 63 at 4475

(item II.A); Pl.s Oppn 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. Pls MSJ SOF 47-48; Pls MSJ Ex. 11 (Kimmett Decl.)

10-21; Pls 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 Oppn Ex. 69 (Furlong Dep.) 399:22-400:22. Although DOR knew as early

as April 2007 that the rates would be reduced, DORs 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 Oppn 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

Oppn 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 Kimmetts

request a list of recommendations relating to the payment of pay-direct

commissions. Pl.s Oppn Ex. 76 (Burman Dep.) 153:14-162:16; Pl.s Oppn 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

Pls MSJ SOF 77; Pls MSJ Ex. 56; response to 128, infra.

74. Admitted. See also responseto 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. Pls

MSJ SOF 79; Pls MSJ Ex. 11 (Kimmett Decl.) 6-7.



80. Denied. As both Kimmetts 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 Oppn Ex. 83 (2006-07

evaluation) at 4501 (items I.F & I.G); Pls MSJ Ex. 63 (2007-08 evaluation) at

4474 (items I.F & I.G). The categories on Kimmetts evaluation that included

Effectively communicates legal advice . . . in writing and Effectively

communicates legal advice orally were marked with Xs signifying that such

[s]kill category [was] not relevant to the attorneys work assignments. Pl.s

Oppn Ex. 83 at 4501; idat 4500 (defining X) (emphasis added); Pls MSJ Ex.

63 at 4474; idat 4473 (defining X) (emphasis added); see also Pl.s Oppn Ex. 65

(Rovelli Dep.) 390:3-6 (Kimmett did received some Xs, but those mean the

category is not relevant to the attorneys work assignment.).

Nearly all of Kimmetts written reports of waste, wrongdoing, and gross

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 Oppn 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

Oppn Ex. 79; Pl.s Oppn Ex. 85; Pl.s Oppn Ex. 86; Pl.s Oppn Ex. 87; Pl.s

Oppn Ex. 88; Pl.s Oppn Ex. 89; Pl.s Oppn Ex. 90; Pl.s Oppn 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. Kimmetts communications dealt not only with

problems within FES, but also problems he had discovered in DORs 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



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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

FESs 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 Comptrollers office

would know that the information was with DOR, but was not going to be

forthcoming voluntarily. Pl.s MSJ Ex. 31.



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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 Oppn 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 FESs 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 Gills resignation.



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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 Oppn 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 theres 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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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 Oppn Ex. 68 (Kimmett Dep.) 258:10-22 (Lou started off the

meeting by saying, I read this draft and youre 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 Oppn 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 Oppn 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 Oppn Ex. 68 (Kimmett Dep.)

251:13-21; see Pl.s Oppn Ex. 91 (indicating discrepancy of approximately 2000

cases between DORs inventory records and FESs inventory records). He worked

toward reconciling those discrepancies, but met resistance in his attempts to do so.

Pl.s Oppn Ex. 68 (Kimmett Dep.) 375:3-13; see also Pl.s Oppn Ex. 66

(Bellaman Dep.) 342:4-344:3 (describing Romans interference with Kimmetts

project to reconcile discrepancies in agencies case inventories).



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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 Oppn Ex. 92; See Pl.s Oppn Ex. 68

(Kimmett Dep.) 392:20-23 (240 cases found in Keisers office). Kimmett even

discovered cases in which payments had been received, but where there was no

record of what happened to those payments. See Pls MSJ SOF 66; Pl.s Oppn

Ex. 90 (Furlong Dep. Ex. 39) at 000036; Pl.s Oppn Ex. 69 (Furlong Dep.)

470:17-473:12. Kimmett met resistance, Pl.s Oppn Ex. 68 (Kimmett Dep.)

375:3-13, and he was criticized by Roman for his focus on resolving such issues.

Pl.s Oppn 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 Oppn 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 Oppn

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



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massive amount of cases had been referred manually by Keiser to Linebarger.

Pl.s Oppn Ex. 68 (Kimmett Dep.) 296:6-299:18; Pl.s Oppn 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 Oppn Ex. 68 (Kimmett Dep.) 115:2-13; Pl.s Oppn 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 Oppn 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 Oppn Ex. 66 (Bellaman Dep.) 330:18-21), and

Kimmett wanted someone he trusted involved in granting extensions. Pl.s Oppn

Ex. 68 (Kimmett Dep.) 419:2-13. Denied insofar as PCAs continued to circumvent



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all safeguards instituted by Kimmett by going directly to Keiser. Pl.s Oppn 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 Romans 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 Oppn 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 Oppn Ex. 93.




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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 PCAs holding period began or after the holding period expired. See

response to 47, supra. Denied insofar as Kimmetts efforts were met with

resistance by PCAs, Roman, and Furlong. For example, in one instance Kimmetts

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 Kimmetts action withholding that commission, Pl.s

Oppn 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 Oppn 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 Oppn Ex.

69 (Furlong Dep.) 459:6-461:19; Pl.s Oppn Ex. 66 (Bellaman Dep.) 533:8-540:2;

Pl.s MSJ Ex. 61.



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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 Oppn 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 Oppn 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 Kimmetts proposed solution

relating the FES attorneys caseload, despite its serious nature. See Pl.s Oppn 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 FESs Law unit and regional offices were

sitting on was over $122 million); See Pl.s Oppn Ex. 67 (Ottenberg Dep.) 249:18-

25 (although one of Kimmetts proposed solutions in action plan was to clean this

up, nothings being changed, all these accounts remain out there, and the

actions arent being taken on them). Kimmett, however, was powerless to

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 FESs Law unit.

Pl.s Oppn 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 Oppn Ex. 65 (Rovelli Dep.) 312:18-313:1; Pl.s Oppn 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 Kimmetts 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 Oppn 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 OAGs

Tax Litigation Section as a staff attorney after Roman had been terminated from a

private practice position. See Pl.s Oppn Ex. 78 (Roman Dep.) 14:17-18:20; Pl.s

Oppn Ex. 65 (Rovelli Dep.) 431:7-433:20. When informing Kimmett of this

decision, Rovelli explained to Kimmett that Kimmetts reports about prior

wrongdoing in FES were inconsistent with OAGs culture. Pl.s MSJ SOF 47;

Pl.s MSJ Ex. 11 (Kimmett Decl.) 14-15.



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117. See response to paragraph 116 above.


119. Admitted that Kimmett provided the Plan of Action to Roman very

early in Romans 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 Oppn 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 PennDOTs 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 Oppn 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 Oppn 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



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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 Kimmetts 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 Oppn 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 Oppn 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

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 Oppn Ex. 97

(Coyne Dep.) 213:10-214:13. Mr. Rovelli testified that he did not discuss

Revenues allegations with Mr. Coyne. Pl.s Oppn 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 Oppn 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 Oppn Ex.



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78 (Roman Dep.) 307:14-308:1. Romans evaluation of Kimmett was made prior

to many of Kimmetts reports of waste, gross mismanagement, and wrongdoing

that he later would send to Roman. See, e.g., Pl.s Oppn Ex. 98; Pl.s Oppn 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 Oppn Ex. 78 (Roman Dep.) 310:11-312:5. Rovelli believed that the

pay increase was pro-rated to reflect the fact that Kimmetts employment did not

start right at the beginning of the fiscal year. Pl.s Oppn 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. Kimmetts reports

of problems within FESs and DORs 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



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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 Oppn Exs. 99-102; Pl.s Oppn Ex. 103; Pl.s Oppn 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

Oppn 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 Oppn 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



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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 Oppn

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 Oppn 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 Oppn 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 Oppn Ex. 105 at 13.



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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 (Kimmetts May 13, 2008 email: Kimmett raises concern to Roman and

Furlong about a $324,965 commission payment to a PCA); id. at 1 (Furlongs May

23, 2008 response: concurring with Kimmetts 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 Kimmetts

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 Oppn Ex. 106

(spreadsheet prepared by Kimmetts compromise team detailing reasons those

compromises had not been approved, and disproving PCAs and Furlongs claim

that Kimmett had approved no compromises submitted by Linebarger PCA); Pl.s

Oppn 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).



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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 Oppn 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 DORs Furlong, see

Pl.s Oppn 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 Oppn 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 Kimmetts

arrival. See Pl.s Oppn 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 Oppn Ex. 68

(Kimmett Dep.) 466:4-471:3, 474:6-476:3; see also Pl.s Oppn Ex. 76 (Burman

Dep.) 235:14-237:4 (Burman also spoke to Nutt of Kimmetts concerns at



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Kimmetts 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 Nutts

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 Oppn 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 Ryans

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 Oppn Ex. 108 (Corbett Dep.) 261:20-263:6. (Corbett, however, claimed to

have no knowledge that Kimmett had in fact met with Ryan. Seeid. 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 Oppn Ex. 81 (Ryan Dep.) 174:17-175:8. As Ryan explained, to go

over your supervisors head and to complain could cause your supervisor to have,

lets say, a certain ill-will toward you. Now, Id like to think Lou [Rovelli]

wouldnt, but were 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



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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 Oppn 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 Oppn Ex. 68 (Kimmett

Dep.) at 480:13-17. Ryan never got back to Kimmett as promised. Pl.s Oppn

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 Oppn 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 Oppn 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 Oppn Ex.

112 (Nutt Dep.) 155:3-165:2.




137. Denied insofar as Kimmetts 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

representation. Pl.s MSJ SOF 84. Kimmetts original attorney communicated

with the FBI agent in the summer of 2008, and the FBI has met with Kimmett

himself and Kimmetts 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 Oppn Ex. 68 (Kimmett Dep.) 198:11-200:18. Although Defendants Corbett,

Rovelli, and Roman denied direct knowledge of Kimmetts contacts, it was shortly

after Kimmett made those contacts that Roman took the unusual step of drafting a

memorandum about Kimmetts job performance for Rovelli to be shared with

Ryan. Pl.s Oppn 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. Seeid. 520:3-521:8 (no written memo

about Santanna); Pl.s MSJ SOF 22; Pl.s Oppn 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 Oppn 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 Oppn 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 Kimmetts 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 Kimmetts 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 Oppn 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 Oppn 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

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 Oppn Ex. 68 (Kimmett Dep.) 466:4-16, 478:18-480:21, and

Burman had spoken with Nutt on Kimmetts behalf regarding the situation in FES.

Seeid. 482:7-484:14 (And she said, Brian, theyre trying to push him off a cliff,

you know, because of what he found and what hes reported.); Pl.s Oppn Ex. 76

(Burman Dep.) 235:11-239:15 (testifying to Burmans conversation with Nutt);

Pl.s Oppn Ex. 113 (notes reflecting Burmans conversation with Nutt). In sum,

once Nutt received Hudics email, he did not need to speak with Hudic to know

that Kimmett had been discussing FESs 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 Kimmetts termination. Defendants had removed

Kimmett from the project prior to his 2007-08 review, drafted prior to Kimmetts

filing suit, yet no decision was made at that time to terminate Kimmetts

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

his employment as Collections unit supervisor. Pl.s Oppn Ex. 67 (Ottenberg

Dep.) 179:7-180:2.


146-47. Denied. Kimmetts role was to provide the business

information to select a package. Pl.s Oppn 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 Oppn Ex. 67 (Ottenberg Dep.) 190:19-

192:2. Technical information, such as the codes involved in inputting and



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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 Oppn Ex. 70

(Gill Dep.) 286:6-288:7; Pl.s Oppn Ex. 74 (Keiser Dep.) 99:7-100:12 (more than

50 different codes); Pl.s Oppn Ex. 65 (Rovelli Dep.). 287:17-289:9 (Its codes.

Everything is its 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 Oppn Ex. 70 (Gill Dep.) 284:11-

295:21; Pl.s Oppn Ex. 66 (Bellaman Dep.) 371:13-17, 380:25-381:21, 567:1-8.

At Kimmetts request, Gill and/or Bellaman communicated with Gunn on multiple

occasions to provide the code information for the project. Pl.s Oppn Ex. 70 (Gill

Dep.) 288:8-289:4; Pl.s Oppn 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 Oppn 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 Oppn Ex. 114

(Gunn Dep.) 176:7-178:14, which were not within Kimmetts knowledge or

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

FES technician. Pl.s Oppn Ex. 114 (Gunn Dep.) 179:3-180:8.

Gunn complained that she, and not Kimmett, completed conversion

translations for the Artiva system, Pl.s Oppn 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 Oppn 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 Oppn 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 sons hockey

tournament, and he received a similarly chilly and uncompromising response from



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Gunn. See Pl.s Oppn Ex. 115.) Because he could not attend that meeting,

Kimmett asked one of his staff to fill in for him. Pl.s Oppn 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 Kimmetts 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 Oppn Ex. 116; Pl.s Oppn

Ex. 117 (noting Kimmetts staff was stretched pretty thin); Pl.s Oppn Ex. 78

(Roman Dep.) 530:6-531:5 (Kimmett was very busy on FES work). Kimmett

offered send someone else from FES. Pl.s Oppn 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 Oppn 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



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a compromise offer by lower[ing] the dollar amount previously established with

the debtor. Pl.s Oppn Ex. 118; Pl.s Oppn 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 Oppn Ex. 101; Pl.s Oppn Ex. 119.

And he was evaluating compromises that had been submitted by PCAs. Pl.s

Oppn 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 Oppn 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 Oppn Ex. 68 (Kimmett

Dep.) 351:22-352:5. At her and Whites request, Roman instructed Kimmett to

attend the conference. Pl.s Oppn Ex. 116; Pl.s Oppn Ex. 78 (Roman Dep.)

532:21-533:6. Kimmett did so. Id.; Pl.s Oppn 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 Oppn Ex. 78 (Roman Dep.) 531:6-21, 533:7-



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13. Gunn objected to Kimmetts 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 Oppn 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 Oppn 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 Oppn 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 Gunns reports with respect to Kimmett to b

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