PITTSBURGH — A contractor has motioned for judgment on the pleadings, in litigation from a construction inspector, who claimed retaliation after reporting to superiors that groundwater categorized as “contaminated” and slotted for removal from his job site was in fact not polluted.

Mark Austin of McKean County first filed suit in the Allegheny County Court of Common Pleas on July 18 versus Gannet Fleming, of Pittsburgh.

“At all times relevant to this complaint, Mark Austin was employed by GF as a Construction Inspector. In or about the spring of 2021, Austin was working as Construction Inspector on a project involving the construction of a building for the Pennsylvania Department of Transportation. PennDOT hired a third-party sub-contractor to haul contaminated groundwater/stormwater from the site. This service was costing Pennsylvania taxpayers millions of dollars. Austin suspected that the water was not contaminated and did not need to be removed. He had tests conducted which confirmed that the groundwater was not contaminated,” the suit said.

“Austin reported the test results to PennDOT’s on-site representatives because he believed, in good faith, that PennDOT was wasting millions of dollars of taxpayer money to remove and transport groundwater which did not need to be removed or transported. On Aug. 24, 2021, shortly after he reported his findings to PennDOT, Austin received a phone call from his immediate supervisor, Bob Sciullo. During this call, Sciullo yelled at Austin and instructed him to ignore his findings regarding the groundwater. Two days later, Sciullo told Austin that he was being removed from a Fall 2021 project for which he had been specifically requested by Sciullo’s supervisor.”

The suit added that Sciullo and his girlfriend (who is also Sciullo’s immediate subordinate) began to criticize Austin’s work performance and “subject him to different standards than other employees.”

“On Oct. 22, 2021, Sciullo changed Austin’s long-standing work schedule. Specifically, he demanded that Austin be physically at the worksite Monday through Friday. Austin had been working on site Monday through Thursday for several months without incident or issue, and his assistant (who was not a GF employee) was always present on Fridays. Sciullo told Austin that GF was making the change because a GF inspector needed to be on site every day. The change was a significant hardship to Austin because of the distance he was required to travel to the site from his home,” the suit stated.

“On Jan. 20, 2022, Sciullo told Austin that the project no longer needed two inspectors. He removed Austin from the project, but retained his younger, less-experienced assistant. This directly conflicted with Sciullo’s representations that a GF inspector was required to be on site five days a week. On Jan. 20, 2022, GF chose not to reassign Austin to another project and instead terminated his employment.”

The defendant filed preliminary objections in the matter on Aug. 15, contending that it did not violate the Pennsylvania Whistleblower Law and that any such claims to the contrary, even if true, would have expired under the law’s statute of limitations.

The defense countered that, in its view, Austin failed to plead that his report was to one of the two entities specified in the PWL, either his employer or the appropriate authority.

“In the complaint, Austin pleads that he made a report to on-site representatives of PennDOT. Austin does not plead that he made a report to Gannet Fleming or plead that PennDOT is an ‘appropriate authority’ under the PWL,” per the objections.

In an answer to those preliminary objections filed on Sept. 2, the plaintiff stood by their allegations.

“Mr. Austin has pled that when he discovered that PennDOT was spending millions of taxpayer dollars to transport water that was not contaminated, he informed PennDOT’s on-site representative of the waste of taxpayer money. He further alleged that ‘shortly after’ he made this report, his supervisor yelled at him and instructed him to ignore PennDOT’s waste and that two days later, he was removed from a future project,” the answer stated, in part.

“He then alleged that his supervisor engaged in a pattern of retaliatory conduct which included criticizing his work, subjecting him to unfair standards and changing his work schedule in ways which caused him significant hardship. This pattern of retaliatory conduct culminated in his termination. These facts sufficiently allege a violation of the Pennsylvania Whistleblower Law.”

On Oct. 20, Allegheny County Court of Common Pleas Judge Andrew Szefi handed down a split decision on the defense’s preliminary objections.

“Upon consideration of defendant Gannet Fleming’s preliminary objections and any response thereto, it is hereby ordered, adjudged and decreed that the preliminary objections regarding conservation are denied. Preliminary objections regarding reporting to an appropriate authority or granted. Plaintiff shall have 20 days to amend,” Szefi stated.

Subsequently, Austin filed an amended complaint on Nov. 10 and Gannet Fleming filed an answer and new matter to that amended complaint on Nov. 30.

UPDATE

On Feb. 14, the defendant filed a motion for judgment on the pleadings, arguing that Austin had not responded to several of its points made in its recent answer and new matter.

The defendants posited that “because Austin failed to respond to the new matter, he admits that all employment actions were taken towards him for separate and legitimate reasons and that he was not terminated for making a good faith report of wrongdoing or waste” and “since Austin admits he cannot meet his necessary burden of proving that Gannett Fleming acted against him because of his protected report, Austin’s PWL claim fails as a matter of law.”

Argument on the aforementioned motion has been scheduled for April 10.

For violation of the PWL, the plaintiff is seeking in excess of the limits of arbitration to include front pay, back pay, compensatory damages and such other relief as is appropriate and equitable under the circumstances, plus attorney’s fees and costs incident to the successful completion of this litigation.

The plaintiff is represented by Margaret S. Coleman of O’Brien Coleman & Wright, in Pittsburgh.

The defendant is represented by Andrew F. Maunz and Ben McGiffin of Jackson Lewis, also in Pittsburgh.