Javitz v. Luzerne County, 2023 Pa. LEXIS 644 (S. Ct. May 5, 2023) (Donohue, J.). In this discretionary appeal, we consider the standard that a plaintiff must meet in order to establish a prima facie claim under Pennsylvania’s Whistleblower Law and whether the Commonwealth Court erred in its application of that standard. As explained in this opinion, we conclude that the Commonwealth Court did so err. We therefore vacate its order and remand for further proceedings. In connection with the Whistleblower Law claim, Javitz alleged that after reporting what she believed to be illegal recording of investigatory meetings by Schnelly, Parsnik stopped including her in discussions pertinent to her responsibilities and instead went directly to her subordinates; he was disrespectful to her in front of her staff; he removed her from talks with human resource consultants and vendors; her key to a filing room that contained the personnel files was taken from her; she was no longer permitted to lead contract negotiations; she was told, for the first time, to do the filing for her office; she was excluded from meetings; and she was excluded from participating in talks about the budget for the human resources department. Lawson instructed the District Attorney not to pursue the investigation and that Parsnik ignored her attempts to discuss the investigation after the initial meeting in the District Attorney’s office. As to the whistleblower claim, Appellees argued that they were entitled to summary judgment because Javitz failed to establish that Schnelly was acting as a county employee when the alleged recordings occurred and further, that Javitz was fired for poor performance. We are called on to review the Commonwealth Court’s conclusion that Javitz failed to establish the causal connection element of her whistleblower claim because she did not put forth direct evidence that she was instructed not to make a report of wrongdoing or threatened with adverse employment action for making such a report. Section 3(a) provides the following:
(a) Persons not to be discharged.–No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste by a public body or an instance of waste by any other employer as defined in this act.
To establish a prima facie case of a violation of Section 3(a), an employee must establish “by a preponderance of the evidence that, prior to the alleged reprisal, the employee or a person acting on behalf of the employee had reported or was about to report in good faith, verbally or in writing, an instance of wrongdoing or waste to the employer or an appropriate authority.” Id. § 1424(b). In the case of alleged retaliatory termination, the employee must show a causal connection between the report of wrongdoing and the termination. Bailets, 123 A.3d at 306. Javitz is correct that when setting forth the standard, the Commonwealth Court misquoted Golaschevsky, rendering the original “such as that” into “such that.” Compare Golaschevsky, 720 A.2d at 759 (“[A] plaintiff must show by concrete facts or surrounding circumstances that the report … led to … dismissal, such as that there was specific direction or information received not to file the report or [that] there would be adverse consequences because the report was filed.”) (emphasis added), with Javitz, 260 A.3d 1100, 2021 WL 3028160, at *6 (“[T]he causal connection … must be shown “by concrete facts or surrounding circumstances that the report of wrongdoing or waste led to plaintiff’s dismissal, such that there was specific direction or information received not to file the report or that there would be adverse consequences because the report was filed.”) (emphasis added). While the plaintiff relied on her perception that co-workers and superiors treated her poorly after making her report, she did so only in part. The plaintiff also put forth evidence of positive performance reviews that turned negative after she made her report, as well as evidence that the warnings and suspensions occurred only after she made her report. This was evidence of concrete facts and surrounding circumstances from which an inference of causation could be drawn; evidence not presented in Golaschevsky.
