Thomas Rink v. Northeastern Educational

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 16-3183
______________

THOMAS RINK,

Appellant

v.

NORTHEASTERN EDUCATIONAL INTERMEDIATE UNIT 19, LOUISE
BRZUCHALSKI, ROBERT SCHWARTZ, JOSEPH MURRACO, RICK BARONE,
THOMAS CERRA, CY DOUAIHY, ERIC EMMERICH, HAROLD EMPETT,
KATHLEEN GRANDJEAN, MICHAEL MOULD, ELLEN NIELSEN, CHRISTINE
PLONSKI-SEZER

______________

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-14-cv-02154)
District Judge: Hon. Robert D. Mariani
______________

Submitted Under Third Circuit L.A.R. 34.1(a)
March 14, 2017
______________

Before: GREENAWAY, JR., SHWARTZ, Circuit Judges, and SIMANDLE, Senior
District Judge. *

(Filed: December 15, 2017)

*
Honorable Jerome B. Simandle, Senior District Judge of the United States
District Court for the District of New Jersey, sitting by designation.
 ______________

OPINION **
______________

SIMANDLE, District Judge.

Thomas Rink (“Rink”) appeals the District Court’s grant of summary judgment to

Northeastern Educational Intermediate Unit 19 (“NEIU”), Louise Brzuchalski, Robert

Schwartz, Joseph Murraco, Rick Barone, Thomas Cerra, Cy Douaihy, Eric Emmerich,

Harold Empett, Kathleen Grandjean, Michael Mould, Ellen Nielsen, and Christine

Plonski Sezer (collectively “Defendants” or “Appellees”). Because there is no genuine

dispute of material fact that Rink’s allegedly protected speech and his eventual

termination were causally connected, and because Rink’s due process and civil

conspiracy claims cannot succeed, the District Court properly ordered summary judgment

for Defendants, and we will affirm.

I

This case involves Rink’s claim for wrongful termination from his position as the

fiscal director of NEIU in 2014. NEIU is a regional education service agency located in

Archbald, Pennsylvania, which is a part of the public school system and was established

by the Pennsylvania General Assembly; the named defendants are or were Board

members of NEIU at the relevant times. Rink had been employed by NEIU since 1981

**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
2
and was made fiscal director in 1994. The principal issue is whether the District Court

erred in finding there was no evidence from which a fact finder could reasonably

conclude that Rink was terminated in June of 2014 from public employment in retaliation

for his cooperating in a federal investigation and sentencing of NEIU’s former executive

director during the time period of January of 2011 through March of 2013.

In 2010, Fred Rosetti, the executive director of NEIU, retired from his position.

Subsequently, the Pennsylvania Department of the Auditor General, the U.S. Department

of Education, and the Federal Bureau of Investigation began to investigate Rosetti. This

investigation was undertaken largely as a result of Board member Louise Brzuchalski

requesting to see Rosetti’s contract, calling a local newspaper, and reporting Rosetti to

the Auditor General. Rink agreed to assist in this investigation and, on April 22, 2011,

was served with a subpoena by a representative of the U.S. Department of Education and

the FBI to appear before the Assistant U.S. Attorney, Michelle Olshefski, on May 18,

2011. Rink told Dr. Clarence Lamanna, the new executive director of NEIU, about the

visit from the FBI’s representative. AUSA Olshefski described Rink as having been

responsive to questions, cooperative, and “extremely” helpful. App. 1730-31.

As early as January of 2011, Brzuchalski began calling for Rink to be terminated.

AUSA Olshefski stated that it was her recollection that she was “led to believe that the

NEIU was blaming Mr. Rink”; in response, in June 2011, she informed Jeff Tucker,

NEIU’s solicitor, not to take any adverse action against Rink, because that would be

interfering with a federal investigation. App. 1732-38; 1766. This position was made

clear to Lamanna, as over the course of the following months and years, Lamanna

3
repeatedly told the Board members that they could not take adverse action against Rink

because he was a whistleblower.

On February 21, 2012, Rosetti was indicted for financial misconduct relating to his

work as executive director of NEIU. Rosetti pled guilty to theft and mail fraud charges in

October of 2012 and admitted misusing taxpayer money.

Before Rosetti was sentenced, AUSA Olshefski met with the Board and reaffirmed

to the entire Board her earlier statements to NEIU Solicitor Tucker, saying that Rink was

not and had never been a target of the investigation, and that Rosetti was the only

wrongdoer.

Rosetti was sentenced in March of 2013. At the sentencing, Rink made an impact

statement, wherein he described the Board as having “exercised little oversight over”

Rosetti’s activities: “Monthly meetings were completed in an hour or less, nearly every

vote was unanimous, and I was often shocked over the years how some agenda items that

I thought to be deserving of some debate would pass unanimously, with not even a

question.” App. 8-9. Rink also described raising concerns about certain financial

improprieties, like a catering charge of several hundred dollars that Rosetti directed him

to process as having been for a staff meeting: “As directed to do so, I processed the bill,

and it was passed by the Board without question or comment.” App. 9. Rink described his

cooperation over the previous two and a half years with the investigation of Rosetti, and

said that, despite his never having been a target of the investigation or a “willing party in

these schemes[,] . . . there are those who continue looking at me as a scapegoat, as well as

debating my continued employment in my current position. . . . There are those who feel

4
that I have failed, in some way, and should be removed from this position that I have

enjoyed having so much over the years.” App. 9-10. He concluded by stating his belief

that “[t]he fall-out from [Rosetti’s] actions has had and will continue to have a negative

[e]ffect on our health, our well-being and our future careers.” App. 10. This statement

was the only public statement made by Rink and was made under oath.

Prior to this, in June of 2012, after Rosetti was indicted but before he pled guilty,

NEIU replaced its auditor (which had one year left on its contract) with Brian T. Kelly &

Associates (“the Kelly Firm”). Rink believed the Board wanted to replace the auditors

because there was a question as to whether auditors should have noticed Rosetti’s

misconduct and because the Board was “looking for a scapegoat.” App. 192. Lamanna

testified that he believed the Board replaced its old auditors because “they wanted a new

face” and because of concerns that the “difficulties inherent in the Rosetti issues” didn’t

surface. App. 572. The Board asked Rink to get proposals from new auditing firms, and

Rink ultimately told the Board that he thought either the Kelly Firm or Robert Rossi and

Company would be a good choice. At approximately the same time, the Board

established several new committees at the recommendation of Lamanna. This included a

finance committee, which monitored Rink’s performance.

In November of 2012, the finance committee of the Board met with the new

auditors from Brian T. Kelly & Associates: Brian Kelly, Brad Murray, and Larry

Mattern. Kelly told the Board members that NEIU’s books were unauditable because of

accounting irregularities. Specifically, in order to perform the audit, the accountants at

Kelly needed a reasonably adjusted trial balance reflected in the books and records of

5
NEIU; Kelly and Murray determined that the “books and records were not reasonably

adjusted and didn’t accurately reflect a number of items that should have been recorded.”

App. 1056. Kelly made this determination by ascertaining that the books and records did

not accord with the financial statements of NEIU and by looking through the general

ledgers and discovering more irregularities. Kelly informed the Board members that the

accounting work would have to be fixed before the books could properly be audited, and

ultimately charged NEIU approximately $42,000 for the accounting work and $21,000

for the auditing work. Because of these irregularities, Kelly also informed the Board

members that he would not be able to complete the annual financial report by November

30, 2012; the delay would leave NEIU facing a possible fine of $300 per day. No

evidence contradicts Kelly’s determination that, as of November of 2012, NEIU’s books

were unauditable.

Once Kelly completed the necessary and extensive accounting work and

concluded the 2012 audit, there were ultimately thirteen findings of deficiencies or

material weaknesses contained in the audit. Another issue uncovered by Kelly was with

regard to a possible loss in the amount of $360,000 to NEIU as a result of an issue

concerning indirect costs. Murray and Kelly discussed this issue with the Finance

Committee in February of 2013. The essential issue was in the determination of the ratio

between business office costs and all costs; although another intermediate unit told

Murray that they calculated this ratio in the same way as NEIU, when Murray contacted

the Bureau of Audits in Harrisburg, the Bureau informed him that NEIU’s method of

calculation was incorrect and constituted “double-dipping.” App. 1065.

6
 On at least one occasion, Lamanna raised the issue with Kelly and Murray of why

Rainey (NEIU’s previous auditor) did not find the issues that Kelly found when preparing

for and completing the 2012 audit. In response, Murray told Lamanna that he believed

that Rainey’s audit must have been deficient, because all of these issues would have

existed and should have been raised by the previous auditors.

In July of 2013, Lamanna gave Rink a corrective action plan, directing him to

address the deficiencies noted in Kelly’s 2012 audit. Lamanna told Rink that if he did not

correct the findings in the 2012 audit, Rink would be terminated.

The following year, Kelly’s audit for fiscal year ending in June of 2013 showed

only 5 findings, compared to the thirteen findings in the previous year’s audit. The

“double-dipping” problem identified by the Bureau of Audits had been eliminated. Id.

Lamanna characterized the 2013 audit as having shown that Rink had improved but not

eliminated the problems identified in the previous audit. For the fiscal year ending June

30, 2014, Kelly’s audit effectively showed no findings (two findings were recited but

these were only required to be reported because of previous findings in earlier audits).

Rink was employed as the fiscal director for NEIU for eleven of the twelve months at

issue in the audit for the fiscal year ending June 30, 2014.

In January 2014, NEIU’s then-solicitor, John Audi (who had replaced Jeff

Tucker), recommended that an independent consultant come in to evaluate NEIU’s

business practices and Rink’s performance. In February 2014, Audi spoke to Rink’s

lawyer and offered Rink an early retirement package; Rink testified that he understood

Audi to say that if Rink did not accept the offer, the Board would bring in an independent

7
consultant to point out any mistakes Rink had made. Rink did not accept the early

retirement package.

Subsequently, around February or March of 2014, the Board hired George

Shovlin, a certified public accountant and lawyer who works in the areas of employment

benefits and education law, to conduct an independent examination of Rink’s

performance as fiscal director and of the business department at NEIU. Before being

hired by the Board, Shovlin did not know anything more about Rosetti than what he

might have read in local newspapers. Shovlin did not have any knowledge about Rink’s

involvement in the Rosetti investigation. Shovlin was directed by the Board to focus only

on the preceding two years of operations at NEIU and, ultimately, to recommend any

changes he thought necessary with regard to Rink’s employment status, including

suspension, performance improvement plans, termination, or recommending that

everything remain as it was. Robert Schwartz, the president of the Board, told Shovlin

that NEIU and the composition of the Board, specifically, had undergone many changes

since Rosetti’s departure; Schwartz himself had only been on the Board for the previous

two years or so. Schwartz expressed concern to Shovlin that the Board wanted to make

sure that they were treating Rink fairly and not targeting Rink because of Rosetti.

Shovlin then conducted his investigation, speaking directly to Rink and other

NEIU employees, interviewing Board members who were on the Audit and Finance

Committee, and reviewing the audit reports and other records. During the course of

Shovlin’s investigation, he expressed to Brad Murray, one of the accountants from the

Kelly Firm, that he was “amazed” that the adjustments to NEIU’s books and records that

8
were required for the auditing process weren’t done before Kelly came in to perform the

2012 audit. App. 1053.

On May 15, 2014, Shovlin presented his initial report to the Finance Committee,

and on May 20, 2014, to an executive session of the Board and subsequently to NEIU’s

Board as a whole.

Shovlin’s report noted that the 2012 audit performed by Kelly resulted in 226

adjusting journal entries, and the 2013 audit in 49 adjusting journal entries, while a

normal amount in any given year would be under 10 adjusting journal entries; Shovlin

did note, however, that some of the 49 adjusting journal entries from 2013 were

holdovers from 2012 findings. While the Annual Financial Report (“AFR”) and

independent audit report for 2012 were filed late (in part because of how many adjusting

journal entries there were), NEIU did not actually incur fines or penalties because of this.

Shovlin also reported an adjustment of over $291,000 that had to be made regarding the

2012 financial reports because there was an error in reporting payroll liabilities to

account for a 2% reduction in employees’ Social Security taxes; an adjustment of over

$127,000 that had to be made to correct the failure to record future retirement payments

owed to employees who had retired that fiscal year; and two adjustments relating to bills

owed to Verizon. The first Verizon bill, for an amount over $449,000, was incorrectly not

reported as a liability or an expense in the 2012 financial report, Rink claimed, because it

was being disputed. In 2013, however, there was another Verizon bill for over $229,000,

that Rink told Shovlin was not listed as a liability because he “blew it”; although some or

all of this bill was also being disputed, Rink mistakenly put it into the “pile” of “bills to

9
be paid,” rather than liabilities. App. 1173-75. Shovlin also pointed to the late filing dates

for the 2012 AFR and independent audit reports as having been caused in large part by

the extraordinary number of adjustments that had to be made. Also of note was Rink’s

failure to cut off the books and financial records at the end of the fiscal year on June 30,

2012, and NEIU’s failure to collect and remit sales tax as part of its auto repair program.

Shovlin noted that his interviews with Lamanna and other staff at NEIU, as well as

his own interviews with Rink, left the impression that Rink was likable, honest, and well-

regarded interpersonally; he wrote that he considered Rink “a gentleman in every positive

sense of the word.” App. 1192-93. He also found fault with the performance

improvement plan on which Lamanna had placed Rink; he felt that with a better plan,

Rink could have made more improvement from the issues noted in the 2012 reports to the

2013 reports.

At the meetings in May of 2014, Shovlin did not make a specific recommendation

as to whether to terminate Rink, renew his employment, or take any other employment

action. He did tell the Board that, in his estimation, the issues he had discovered, the

materiality of those issues, and the number of issues, warranted Rink’s termination if the

Board chose to do so. Shovlin believed that case law supported terminating Rink for

neglect of duty. He did not believe that the Board should take no action with regard to

Rink’s employment status; the issues uncovered warranted action by the Board, and

although Rink had improved under the performance improvement plan, significant issues

still remained. Shovlin also recommended that a disciplinary hearing be held to go over

the issues he had uncovered with Rink’s performance during his investigation. All twelve

10
members of the Board then voted not to renew Rink’s employment as of June 30, 2014

(the end of the fiscal year). The Board characterized this decision as one not to renew

Rink’s employment, rather than as a dismissal for cause. The next day, May 21, 2014, a

letter was sent to Rink informing him of the Board’s decision not to renew his

employment, effective June 30, 2014. The letter also informed him that he was not to

return to work after May 20, 2014, and Rink did not do so.

Rink had no written employment contract. While Rink was promoted to his

position on a permanent rather than acting basis in 1994, as of about 2000, he believed

that his employment was deemed perpetual unless he, for instance, committed a great

crime. None of the employees of NEIU, except for the executive director, had specific

employment contracts with NEIU or anything stating a term of employment. This

included Rink. However, the Board did vote annually to provide Rink with a raise in

salary.

In late June of 2014, Rink received a letter from NEIU’s solicitor informing him

of the opportunity to request a hearing regarding his termination for cause. Rink’s

counsel declined to demand a hearing. That was Rink’s notice of hearing provided to him

before the hearing occurred. Despite Rink’s refusal to demand a hearing, the Board

scheduled and held a hearing on July 23, 2014; however, Rink did not attend the hearing.

After the hearing, an adjudication and determination were made to terminate Rink for

cause. On September 23, 2014, the Board confirmed this determination, passing a motion

to dismiss Rink for neglect of duty effective at the conclusion of June 30, 2014. At a

Board meeting on October 2, 2014, the Board adopted a motion to amend the

11
adjudication to reflect that Rink was fired for cause as of June 20, 2014. 1 At Rink’s

deposition, he testified that, to his knowledge, no one else who had participated in the

Rosetti investigation (approximately five other people) had been terminated by NEIU.

Rink filed this lawsuit in November of 2014 in the United States District Court for

the Middle District of Pennsylvania. He alleged that NEIU harassed and terminated him

in retaliation for Rink exercising his First Amendment rights in testifying against Rosetti;

that NEIU violated his right to due process by not providing him with an explanation of

the reasons for his termination or an opportunity to be heard before he was terminated;

that the defendants engaged in an unlawful civil conspiracy to retaliate against and

terminate Rink; and that the defendants violated the Pennsylvania Whistleblower Act, 43

Pa. Stat. and Cons. Stat. Ann. § 1422. After extensive discovery, the defendants filed a

motion for summary judgment on January 29, 2016. After briefing by both parties and

oral argument, the court granted the defendants’ motion on July 18, 2016. The court

entered judgment in favor of defendants and against Rink. Rink appeals.

II 2

We exercise a plenary standard of review over the District Court’s entry of

judgment in favor of defendants, and we apply the same standard for summary judgment

as the District Court. Chavarriaga v. N.J. Dep’t of Corrs., 806 F.3d 210, 218 (3d Cir.

2015). Summary judgment is appropriate where there is no genuine issue as to any

1
The record does not indicate a reason for this effective date rather than the previous
effective date of June 30, 2014.
2
The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C.
§ 1367; we exercise jurisdiction pursuant to 28 U.S.C. § 1291.
12
material fact, and the moving party is entitled to judgment as a matter of law; while the

non-moving party is entitled to the benefit of all reasonable factual inferences from the

evidence, the non-movant “must point to some evidence in the record that creates a

genuine issue of material fact.” N.A.A.C.P. v. City of Philadelphia, 834 F.3d 435, 440

(3d Cir. 2016) (citation omitted). “[A]n inference based upon a speculation or conjecture

does not create a material factual dispute sufficient to defeat summary judgment.” Halsey

v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014) (quoting Robertson v. Allied Signal, Inc.,

914 F.2d 360, 382 n.12 (3d Cir. 1990)).

Rink advances two major grounds for error by the District Court. First, he argues

that the District Court erred as a matter of law when it found that there was no genuine

dispute of material fact regarding whether there existed a causal connection between

Rink’s protected speech and the decision to terminate his employment. Second, he argues

that the District Court erred as a matter of law in determining that Rink lacked a protected

interest in his continued employment entitling him to procedural due process protections

he did not receive. He also contends that the District Court wrongly granted summary

judgment on his civil conspiracy claim. We will address these arguments in turn.

A.

1.

Rink claimed that NEIU retaliated against him in violation of his First Amendment

rights (Count I). In order to make out a claim of First Amendment retaliation under 42

U.S.C. § 1983, a plaintiff must show that 1) the plaintiff engaged in activity protected by

the First Amendment; 2) the defendant took retaliatory action against the plaintiff

13
“sufficient to deter a person of ordinary firmness from exercising his or her rights”; and

3) a causal nexus existed between the protected activity and the retaliation. Lauren W. ex

rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). This circuit has also

framed the claim’s required showing as first, that the plaintiff engaged in “speech [that] is

protected by the First Amendment,” and second, that “the speech was a substantial or

motivating factor in the alleged retaliatory action . . . [;] if both are proved, . . . the burden

[shifts] to the employer to prove that . . . the same action would have been taken even if

the speech had not occurred.” Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 466 (3d

Cir. 2015).

Here, the District Court ruled that Rink had not put forth sufficient evidence to

allow a reasonable finder of fact to conclude that his speech against Rosetti was a

“substantial or motivating factor” in Rink’s termination by NEIU. 3 App. 20. We agree.

In order to establish the required causal connection, “a plaintiff usually must prove

either (1) an unusually suggestive temporal proximity between the protected activity and

the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to

establish a causal link.” Lauren W., 480 F.3d at 267. If a plaintiff cannot make either

showing, “the plaintiff must show that from the evidence gleaned from the record as a

whole the trier of fact should infer causation.” Id. (internal quotation marks omitted). The

protected activity need not be the only motive behind the retaliatory action; summary

judgment should not be granted in the case “[w]here a reasonable inference can be drawn

3
Accordingly, the court did not address whether NEIU could prove that the same action
would have been taken even if Rink had not spoken against Rosetti.
14
that an employee’s speech was at least one factor considered by an employer in deciding

whether to take action against the employee[.]” Merkle v. Upper Dublin Sch. Dist., 211

F.3d 782, 795 (3d Cir. 2000). Nevertheless, this circuit has recognized that courts “must

be diligent in enforcing these causation requirements[.]” Lauren W., 480 F.3d at 267. A

party opposing a motion for summary judgment “must present more than just bare

assertions, conclusory allegations or suspicions to show the existence of a genuine issue.”

Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (internal quotation marks

omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

Rink submits that the District Court erred in not crediting the evidence he

proffered as sufficient to allow an inference that NEIU exhibited a pattern of antagonism

toward Rink after he participated in the Rosetti investigation. It appears that Rink does

not argue that there existed an “unusually suggestive temporal proximity” between his

participation in the Rosetti matter and his termination; nor can he reasonably do so, as the

temporal proximity contemplated to allow for such an inference is on the order of days or

weeks, see Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-80 (3d Cir. 2000);

Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d Cir. 2003), rather than the

15 months (from Rosetti’s sentencing in March of 2013 until Rink’s termination in June

of 2014) that elapsed here.

Instead, Rink submits that “the pattern of antagonism” by the Board began after

NEIU “learned that Rink was being cooperative in the investigation and [had] responded

to the subpoena,” and the “pattern intensified after the sentencing” where Rink made an

impact statement. Appellant’s Br. at 15. However, an examination of the record does not

15
reflect evidence to allow for a reasonable inference of the existence of a retaliatory

motive behind “the pattern of antagonism” to which Rink refers.

Rink argues that his belief, relying on his deposition testimony, that “the Board

was influencing the Kelly Firm” is based on the following: 1) “Bob Schwartz, Louise

Brzuchalski and Joe Muracco started having discussions with the Kelly Firm right after

the audit began which is not typical”; 2) “the Kelly Firm continuously made negative

comments to the Board about [Rink’s] performance”; 3) the previous auditors had made

only one finding against him, but the Kelly Firm made “13 written findings,” many of

which Rink believes to have been minor and not worthy of written findings; and 4) Kelly

did not bring up these potential findings in advance with Rink and allow Rink to

“straighten out” those issues with Kelly before bringing them to the attention of Board

members, which is “just not the way the process usually works.” Appellant’s Br. at 16-

17. Rink characterizes this last issue as Kelly having “blind-side[d]” Rink. Id. Rink’s

critique of the Kelly auditors does not withstand scrutiny, as now discussed.

None of these alleged facts, even taken in the light most favorable to Rink, tend to

allow for a reasonable inference that the Board was influencing the Kelly Firm or that it

was doing so in retaliation for Rink’s protected speech. First, Rink himself had a hand in

choosing Kelly when Rink indicated to the Board that the Kelly Firm would be an

acceptable choice for a new auditor, a fact which logically implies Kelly’s independent

auditor status. Second, each of the facts to which Rink points are notable only because he

asserts them to be so (i.e., that Board members spoke directly with members of the Kelly

Firm, or that some of Kelly’s findings were relatively minor). Moreover, the record

16
confirms that the Kelly Firm’s methods were, even if another auditor may have done

things differently, a reasonable professional practice. Kelly’s discussions with the Board

and its professional auditing methods simply do not give rise to an inference of collusion

with the Board. It was not disputed that Kelly found the books and records to be

unauditable. In this dire circumstance, if the Board had hypothetically brought in new

auditors whom they wanted to be more exacting than previous auditors because the Board

believed that it had been too lax or too generous to management in light of the

malfeasance committed by the former executive director, one could only reasonably find

that the practices complained of by Rink would be undertaken by the new auditors, e.g.,

direct interaction with Board members, erring on the side of making findings even out of

relatively minor issues, erring on the side of making written findings rather than verbal

warnings, making sure Board members were directly apprised of all findings. None of

these actions, then, allow for a reasonable inference that the Kelly Firm was colluding

with the Board, much less that it was doing so to retaliate against Rink for a protected

activity, given the unauditable nature of the books Rink maintained as of 2012.

Indeed, one of Rink’s experts, Stephen J. Scherf, CPA/CFF, CFE, wrote in his

report that the reason for the discrepancy between the old auditors’ reports on Rink’s

performance and Kelly’s report was attributable to “a difference in professional

judgment” between the auditors’ firms. App. 1776. While Scherf stated that “it has not

been established that the lack of findings on the part of the Bonita & Rainey firm

represents anything more than a difference in professional judgment,” he also did not

attribute Kelly’s findings to anything other than this difference or note what he

17
considered to be bias, unfair treatment, or unusual practices by the Kelly Firm in its

audits of Rink and NEIU. Id.

Rink also submits that the District Court erroneously overlooked the evidence

offered by his expert witness, Patrick M. Sable, Pennsylvania Registered School Business

Administrator (“PRSBA”). The Court has reviewed Sable’s report, which states, in

essence, that Sable believes several of the findings made by Kelly against Rink could

have been “identified as verbal findings and resolved quickly”; if they were not corrected

in the next year, “then” those findings “may rise to a written comment because of

compliance failure.” App. 1795. Sable also stated that providing Rink with “a fair

opportunity to take corrective action” would have been “reasonable and customary.” Id.

However, nothing in Sable’s report suggests that it was unusual or unreasonable to

instead log the findings as written findings and submit them to the Board, especially in a

situation, as here, where Kelly was brought in as a fresh pair of eyes or “a new face,”

App. 572, to take a renewed look at NEIU’s operations in light of the Rosetti issues and

serious deficiencies in accounting practices. Likewise, the Sable report does not take

issue with the serious structural deficiencies that Kelly found in November of 2012 to

render the books “unauditable,” as discussed above. Furthermore, the evidence is

uncontested that Rink was provided with a fair opportunity to take corrective action in the

form of his Performance Improvement Plan. We do not see how Sable’s opinions to

which Rink points would have changed the District Court’s analysis or decision.

Rink suggests that the District Court erroneously overlooked part of AUSA

Michelle Olshefski’s testimony wherein she stated her impression that NEIU and Louise

18
Brzuchalski, specifically, were blaming Rink, among other individuals, for Rosetti’s

conduct. While Ms. Olshefski did testify to that, that still does not allow for a reasonable

inference in light of the evidentiary record taken as a whole that the “blame[]” NEIU and

Brzuchalski placed on Rink (and others) (App. 182), caused them to retaliate against

Rink for his cooperation with the government investigation by hiring the Kelly Firm,

colluding with them, or directing their audit so as to manufacture a reason to terminate

Rink—which is the issue here. Furthermore, Rink’s own testimony offers evidence that

Louise Brzuchalski pushed for Rink’s termination, according to Lamanna, as a result of

the Rosetti issues as early as January of 2011; this was not only before Rink spoke at

Rosetti’s sentencing but also before he was served with a subpoena from the U.S.

Attorney. Such evidence therefore undercuts Rink’s contention that Brzuchalski’s alleged

blaming of him was retaliation for his protected activity of cooperating with the

subsequent federal investigation and testifying at Rosetti’s sentencing, rather than his

own shortcomings in maintaining the financial books and records.

Rink argues that the District Court improperly credited the testimony of Kelly,

Murray, and Shovlin (all of whom testified that no one on the Board, nor anyone else,

asked them to find fault with Rink) and of Kelly and Murray (when they testified that

NEIU’s books were “unauditable” and criticized Rink’s accounting practices), and that

such a decision should have been left to the finder of fact. However, such a decision need

only be left to the finder of fact at trial if there is evidence on the other side of the issue

that would allow for a reasonable inference to the contrary, and here Rink has not pointed

to any such evidence. There is only his own speculation, based on his own further

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speculation as discussed above, that the Board colluded with the Kelly Firm or with

Shovlin to find fault with him. His own proffered experts did not characterize Kelly’s

findings as being the result of anything other than Kelly and Murray’s professional

judgment, in which reasonable outside auditors could differ in approach or emphasis.

Kelly, Murray, and Shovlin did not testify as experts and did not offer their opinions as

such, and therefore there is no reason to disregard any parts of their factual testimony; nor

did the District Court improperly construe any of their testimony as expert opinions. “If a

witness is not testifying as an expert, testimony on the form of an opinion is limited to

one that is . . . rationally based on the witness’s perception; . . . helpful to clearly

understanding the witness’s testimony or to determining a fact in issue; and . . . not based

on scientific, technical, or other specialized knowledge within the scope of [Fed. R.

Evid.] 702.” Fed. R. Evid. 701. Courts “allow[] professionals to give lay opinions when

the opinions are based on personal knowledge of the issues, along with specialized

experience.” U.S. v. DeMuro, 677 F.3d 550, 562 (3d Cir. 2012). Here, Kelly, Murray,

and Shovlin testified to their own work and their own findings based on personal

knowledge, as well as their perceptions about what the Board retained them to do. This

Court discerns no error with the consideration of their testimony.

Kelly, Murray, and Shovlin’s testimony—as well as the testimony of the deposed

members of the Board—that they were hired to audit NEIU and to review Rink’s

performance (respectively), and that they did not discuss Rosetti with members of the

Board, or even know that Rink had made the statement at Rosetti’s sentencing hearing,

cannot create a genuine dispute of material fact where Rink has presented no evidence,

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beyond his own surmise and speculation, as to whether the Kelly Firm and Shovlin were

in fact hired to manufacture or otherwise provide a pretextual reason to terminate him.

This is not a case where Rink has adduced evidence from which a reasonable fact-finder

could find he carried his “burden of establishing [that] his protected conduct . . . served as

a substantial or motivating factor in his dismissal.” Baldassare v. New Jersey, 250 F.3d

188, 200-01 (3d Cir. 2001). Cf. Feldman v. Philadelphia Hous. Auth., 43 F.3d 823, 831

(3d Cir. 1994) (“The record is replete with evidence from which [a] jury could properly

conclude that [a plaintiff’s] firing was directly precipitated by his engaging in protected

speech”; accordingly, “[the defendants’] attack on [the plaintiff’s] alleged incompetence

as the reason for his dismissal raised a jury issue.”).

Other evidence undercuts Rink’s contention as well: that Louise Brzuchalski, the

member of the Board who was one of the greater proponents of supposedly “blam[ing]”

Rink (App. 182), allegedly for embarrassing and blaming the Board during his sentencing

statement, herself invited more potential embarrassment of the Board by alerting the

media and Auditor General to Rosetti’s improprieties in the first place; that no other

participant in the Rosetti investigation was terminated besides Rink; or that the hiring of

the Kelly Firm occurred nine months before Rink criticized the Board at Rosetti’s

sentencing, where Rink has presented no evidence of what protected activity he

undertook before Kelly was hired that would have provoked the Board’s animus and

retaliatory motive he ascribes to it. In light of the Board’s own acquiescence in (and

indeed, initiation of) the investigation, Rink does not proffer a reason why simply

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complying with a subpoena would have provoked the retaliatory animus in the Board that

his sentencing statement (which cast some blame on the Board) would have.

The Court agrees with Appellees that “there is simply no evidence that there was

an agenda to wrongly find fault with Rink’s accounting practices through the hiring of

auditors [and an] investigator” and relying on their findings as a basis for terminating

Rink in June of 2014. Appellee’s Br. at 36. We therefore affirm summary judgment on

this claim.

2.

For the same reasons, the Court upholds the District Court’s decision to grant

summary judgment on Plaintiff’s claim of retaliation under the Pennsylvania

Whistleblower Act (Count IV). The Pennsylvania Whistleblower Act states that “[n]o

employer may discharge . . . or retaliate against an employee . . . because the employee . .

. makes a good faith report . . . [of] an instance of wrongdoing or waste by a public body

or an instance of waste by any other employer”; nor may an employer “discharge . . . or

retaliate against an employee . . . because the employee is requested by an appropriate

authority to participate in an investigation, hearing or inquiry held by an appropriate

authority or in a court action.” 43 Pa. Cons. Stat. § 1423. The causal connection between

the protected activity and the retaliation is established in the same manner as under Title

VII and § 1983: by a showing of temporal proximity along with a pattern of antagonism.

McAndrew v. Bucks Cty. Bd. of Comm’rs, 982 F. Supp. 2d 491, 505 (E.D. Pa. 2013).

For the same reasons that the Court holds that Plaintiff did not present the required

22
evidentiary record to support a causal connection between his protected speech and his

termination in the First Amendment context, the Court similarly holds that Plaintiff has

failed to present the required evidentiary record from which a reasonable fact finder

could find a causal connection between his cooperation in the federal investigation and

his termination under the Pennsylvania Whistleblower Act. We affirm the grant of

summary judgment on this claim.

B.

Rink claimed in Count II that he was denied procedural due process rights. The

District Court granted summary judgment to Defendants on this claim, and we affirm.

“To state a claim under § 1983 for deprivation of procedural due process rights, a

plaintiff must allege that (1) he was deprived of an individual interest that is encompassed

within the Fourteenth Amendment’s protection of life, liberty, or property, and (2) the

procedures available to him did not provide due process of law.” Hill v. Borough of

Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006) (internal quotation marks omitted). A

property interest is not created by the Constitution; rather, it is created and its dimensions

“are defined by existing rules or understandings that stem from an independent source

such as state law[.]” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).

Rink claims he had a protected property interest in his continued employment by

NEIU. We have previously held that “[t]o have a property interest in a job . . . a person

must have more than a unilateral expectation of continued employment; rather, she must

have a legitimate entitlement to such continued employment.” Elmore v. Cleary, 399 F.3d

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279, 282 (3d Cir. 2005). We have also held that “[t]he hallmark of a constitutionally

protected property interest is an individual entitlement that cannot be removed except for

cause.” Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1078 (3d Cir. 1990) (internal

quotation marks omitted). We look to Pennsylvania law to ascertain whether Rink had

such a constitutionally protected property interest.

Rink contends that he “was statutorily protected from removal during his term of

employment in that Section 10-1089 of the Pennsylvania School Code, 24 Pa. Cons. Stat.

§ 10-1089, needed to be complied with and in that he had an implied promise of

continued employment based on his history and experience with NEIU.” Appellant’s Br.

at 24-25.

Section 10-1089, which applies to school business administrators like Rink,

provides in relevant part:

(b) The governing board [of a school entity] may enter into a written
employment agreement with a person . . . to serve as a business
administrator . . . . The agreement may define the period of employment,
salary, benefits, other related matters of employment and provisions of
renewal and termination of the agreement.
(c) Unless otherwise specified in an employment agreement, the governing
board shall, after due notice, giving the reasons therefor, and after hearing if
demanded, have the right at any time to remove a business administrator for
incompetency, intemperance, neglect of duty, violation of any of the school
laws of this Commonwealth or other improper conduct.

24 Pa. Cons. Stat. § 10-1089(b)-(c).

In general, Pennsylvania employment law operates against a backdrop of at-will

employment: “Exceptions to the doctrine [of at-will employment] have generally been

limited to instances where a statute or contract limits the power of an employer

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unilaterally to terminate the employment relationship.” Knox v. Bd. of Sch. Dirs., 888

A.2d 640, 647 (Pa. 2005). Under Pennsylvania law, an at-will employee may be

terminated by an employer “with or without cause, at pleasure, unless restrained by some

contract.” Shick v. Shirey, 716 A.2d 1231, 1233 (Pa. 1998) (quoting Henry v. Pittsburgh

& Lake Erie R.R. Co., 21 A. 157, 157 (Pa. 1891)).

It is undisputed that NEIU and Rink did not have a written employment

agreement. Knox holds that § 10-1089 applies to school business administrators who do

not have written employment agreements. 888 A.2d at 649. However, § 10-1089(c) “does

not provide a school business administrator with employment for life absent misconduct

falling into one of the enumerated statutory circumstances. . . . Rather, Section 10-

1089(c) merely provides a business administrator with a certain degree of job security

against removal during the term of his employment, whatever that term, as established by

the agreement of the parties, might be.” Id. at 649 (emphasis added).

The District Court held that Rink was not removed from his position at the May

2014 Board meeting, but rather that the Board voted at that meeting not to renew his

employment for the following year. The District Court also held that Rink was an at-will

employee and that Rink did not produce any evidence, beyond his own subjective

expectation, that he and NEIU entered into a verbal agreement establishing a specified

term of employment “sufficient to give rise to a property interest” in his continued

employment, nor any evidence that NEIU’s policies and practices gave rise to an

expectation of such continued employment. App. 34-35. The District Court also pointed

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to the following statement made by Rink at Rosetti’s sentencing acknowledging his

employment was at-will:

In May of 1999, near the end of his first year in the Executive Director
position, Dr. Rosetti threatened to fire me and clear out my whole
department over a seemingly minor question raised by a member of my
office staff. While things quieted down afterwards, it was quite clear to me
that I had better be cautious in my dealings with this man. That same day, I
sought out legal counsel, and was told that Pennsylvania was an
employment at-will state, and that, unless I had an employment contract, I
could be terminated at any time.

App. 9.

While Rink’s subjective expectation may have been “perpetual” employment

absent misconduct, the case law is clear that an employee’s “subjective expectation of

continued employment [does] not spawn a property or liberty interest activating

protectable procedural due process rights.” Skrocki v. Caltabiano, 505 F. Supp. 916, 919

(E.D. Pa. 1981). An at-will employee, in general, has no specific term of employment.

While a plaintiff’s “long-term relationship with his employer” may “provide[] some

indicia of his expected term of employment” under Knox, 888 A.2d at 650, there is

simply insufficient evidence in the record before us to conclude that Rink was anything

other than an at-will employee of NEIU who had no specific term of employment. This is

especially true here, where Lamanna informed Rink in 2013 that he was in danger of

being terminated if he did not improve his performance to a certain level and Rink stated

that he believed himself to be an at-will employee in danger of termination at any time.

Rink cannot point to evidence in the record that shows that NEIU was contractually

prohibited from not renewing his employment. Where courts have found otherwise, it has

26
been on the basis of some additional evidence, such as an oral contract formed by an

employer telling an independent contractor that she would be employed for a particular

period of time. See Farr v. Chesney, 437 F. Supp. 521, 525-528 (M.D. Pa. 1977).

A closer question is presented by whether § 10-1089(c) of the Pennsylvania

School Code created for Rink a protected interest, such that some kind of process was

owed to Rink under the Due Process Clause.

The wording of § 10-1089(c) concerns itself only with removal of a business

administrator for “incompetency, intemperance, neglect of duty, violation of any of the

school laws of this Commonwealth or other improper conduct,” unless “otherwise

specified in an employment agreement.” 24 Pa. Cons. Stat. § 10-1089(c). Rink had no

employment agreement, and nothing in § 10-1089(c) confers an expectation against

termination for no reason, i.e., at will, because the statute only applies to the specified

types of termination for cause. The statute gives only a measure of assurance that, if a

business administrator is about to be fired for one of the specified reasons, the governing

board must give notice of reasons and an opportunity, if demanded, for a hearing. This

appears to be a procedural protection rather than an expectation of continued employment

absent good cause to terminate. In other words, if a governing board offers no reason but

simply decides to terminate the business administrator at will, nothing in § 10-1089(c)

prevents the board from doing so. Thus, this statute does not create a property interest in

continued employment, but it instead provides a procedural protection if the proposed

termination is for a listed type of misconduct. But even if one assumes for the sake of

argument that Rink had a property interest in continued employment through some

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combination of § 10-1089 and the customs and understandings of NEIU, it is clear that

Rink cannot satisfy the second prong of his procedural due process claim because NEIU

gave him the process that was due.

To the extent that the Board’s decision at the May Board meeting, which it

characterized as a decision not to renew Rink’s term of employment for the following

year, constituted the “remov[al]” of a “business administrator” “for incompetency,

intemperance, neglect of duty, violation of any of the school laws of this Commonwealth

or other improper conduct,” the Board may have been required to provide Rink with “due

notice, giving the reason” for the removal, and to provide Rink with a hearing if he

demanded one. 24 Pa. Cons. Stat. § 10-1089. Such notice and opportunity to request a

hearing would satisfy any due process obligations. By later making the determination that

it was terminating Rink’s employment as a business administrator for cause, the statutory

protections of § 10-1089(c) were triggered.

Assuming that Rink qualified for the statutory protection afforded by § 10-

1089(c), Rink nevertheless cannot prevail upon his claim for failure to provide procedural

due process where, as here, NEIU provided Rink with the opportunity to demand a

hearing on June 27, 2014, prior to the effective date of termination on June 30, 2014.

App. 1652. No copy of the NEIU solicitor’s letter containing the notice of hearing

appears in the record, but Rink has not challenged the adequacy of notice in advising him

of the purposes of the termination hearing. The statute, in setting up this pre-termination

hearing right, required NEIU to convene a pre-termination hearing only “if demanded.”

24 Pa. Cons. Stat. § 10-1089(c). NEIU was thus not obligated to convene a hearing on its

28
own. Rink, through counsel, indicated in a letter of July 7, 2014 that Rink was explicitly

“not demanding a hearing on his dismissal for-cause.” App. 1652. Rink’s counsel’s

assertion that, since the June 30th termination date had elapsed, “the NEIU Board no

longer has the power to require him to demand a hearing,” is misplaced. The statute

leaves to the employee the opportunity to demand a hearing, which Rink could have done

whether or not NEIU formally offered that opportunity to him. Had Rink’s counsel

demanded a hearing at some time before the July 7, 2014 deadline, the prospect of

staying the June 30th termination pursuant to § 10-1089(c) would be raised, but that is

not the issue here.

We have previously held that “a procedural due process violation cannot have

occurred when the governmental actor provides apparently adequate procedural remedies

and the plaintiff has not availed himself of those remedies.” Alvin v. Suzuki, 227 F.3d

107, 116 (3d Cir. 2000). Rink submits that he was entitled to a hearing before the alleged

deprivation of his property interest and that a hearing in July after the Board voted not to

renew his contract in May was therefore inadequate. We disagree. The evidentiary record

indicates that the Board informed Rink that the conclusion of Rink’s employment with

NEIU would come “at the conclusion of the June 30, 2014, workday.” App. 1652. Rink

in fact enjoyed the opportunity to request a hearing and declined. He later, through

counsel, declined the opportunity to participate in the Board-scheduled hearing on July

23, 2014. App. 1652-53. We find that this is the situation contemplated in Alvin: “If there

is a process on the books that appears to provide due process, the plaintiff cannot skip

that process and use the federal courts as a means to get back what he wants.” 227 F.3d at

29
116. The Board provided Rink with the due process protections § 10-1089(c) requires,

and his claim that he was denied procedural due process cannot succeed.

For the foregoing reasons, we therefore affirm the District Court’s grant of

summary judgment to Defendants with regard to Rink’s procedural due process claim.

C.

We also affirm the District Court’s grant of summary judgment on Rink’s claim of

civil conspiracy in Count III. There can be no civil conspiracy to commit an unlawful act

under § 1983 where the plaintiff has not proven a deprivation of a constitutional or

federal statutory right or privilege. See Black v. Montgomery Cty., 835 F.3d 358, 372

n.14 (3d Cir. 2016); Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011). Here,

Rink has failed to demonstrate that the evidentiary record before the Court allows for a

reasonable inference that he was deprived of a federal constitutional or statutory right,

nor for a reasonable inference that any of the Defendants made an agreement or plan to

deprive Rink of such a right; accordingly, his claim for a civil conspiracy under § 1983

also fails.

III

For the foregoing reasons, we will affirm the District Court’s grant of summary

judgment to the Defendants and its entry of judgment on behalf of Defendants and

against Rink.

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