kimmett v corbett - counter statement to defendants statement of facts - pennsylvania corbett case...
TRANSCRIPT
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
1/89
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)
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
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
2/89
1
1. Plaintiff admits that the facts stated in paragraph 1 are undisputed.
2. Plaintiff admits that the facts stated in paragraph 2 are undisputed.
3. Plaintiff admits that the facts stated in paragraph 3 are undisputed.
4. Plaintiff admits that the facts stated in paragraph 4 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.
6. Plaintiff admits that the facts stated in paragraph 6 are undisputed.
7. Plaintiff admits that the facts stated in paragraph 7 are undisputed.
8. Plaintiff is without information sufficient to confirm or dispute the
validity of this statement.
9. Plaintiff admits that the facts stated in paragraph 9 are undisputed.
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 2 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
3/89
2
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 3 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
4/89
3
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).
13. Plaintiff admits that the facts stated in paragraph 13 are undisputed.
14. Plaintiff admits that the facts stated in paragraph 14 are undisputed.
15. Denied. DOR currently also refers accounts directly to PCAs, which
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 4 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
5/89
4
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.
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 5 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
6/89
5
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.
22. Plaintiff admits that the facts stated in paragraph 22 are undisputed.
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 6 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
7/89
6
receiving approval to do so). The debtor, not the PCA, must propose a
compromise.
24. Plaintiff admits that the facts stated in paragraph 24 are undisputed.
25. Plaintiff admits that the facts stated in paragraph 25 are undisputed.
26. Plaintiff admits that the facts stated in paragraph 26 are undisputed.
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 7 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
8/89
7
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.
29. Plaintiff admits that the facts stated in paragraph 29 are undisputed.
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.
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 8 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
9/89
8
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 9 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
10/89
9
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).
38. Plaintiff admits that the facts stated in paragraph 38 are undisputed.
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.
40. Plaintiff admits that the facts stated in paragraph 40 are undisputed.
41. Denied. One of the main reasons that Ottenberg felt the computer
system should be replaced was because manual inputs were not subject to
monitoring or tracking. Pl.s 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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 10 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
11/89
10
unearned commissions being paid to PCAs, particularly Linebarger. See response
to paragraph 47, infra.
42. Plaintiff admits that the facts stated in paragraph 42 are undisputed.
43. Plaintiff admits that the facts stated in paragraph 43 are undisputed.
44. Plaintiff admits that the facts stated in paragraph 44 are undisputed.
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 11 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
12/89
11
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.
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 12 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
13/89
12
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.
51. Plaintiff admits that the facts stated in paragraph 51 are undisputed.
52. Plaintiff admits that the facts stated in paragraph 52 are undisputed.
53. Plaintiff admits that the facts stated in paragraph 53 are undisputed.
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.
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 13 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
14/89
13
55. Plaintiff admits that the facts stated in paragraph 55 are undisputed.
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 14 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
15/89
14
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 15 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
16/89
15
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 16 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
17/89
16
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.
60. Plaintiff admits that the facts stated in paragraph 60 are undisputed.
61. Plaintiff admits that the facts stated in paragraph 61 are undisputed.
1 In fact, excluding the catchall performs related work as required, 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.
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 17 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
18/89
17
62. Plaintiff admits that the facts stated in paragraph 62 are undisputed.
63. Admitted that Kimmett was supposed to replace Keiser, but denied
insofar as, although Keiser was supposed to report to Kimmett, she refused to do
so, and she refused to relinquish her role as a supervisor to the staff. See 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).
64. Plaintiff admits that the facts stated in paragraph 64 are undisputed.
65. Denied. See response to 63, supra.
66. Plaintiff admits that the facts stated in paragraph 66 are undisputed.
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 18 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
19/89
18
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 19 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
20/89
19
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.
71. Plaintiff admits that the facts stated in paragraph 71 are undisputed.
72. Admitted that, after Kimmett started at FES, he and Bellaman would
review and sign off on the commission payments made for pay-directs. Pl.s
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.
75. Plaintiff admits that the facts stated in paragraph 75 are undisputed.
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 20 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
21/89
20
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.
78. Plaintiff admits that the facts stated in paragraph 78 are undisputed.
79. Plaintiff admits that the facts stated in paragraph 79 are undisputed.
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 21 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
22/89
21
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.
81. Plaintiff admits that the facts stated in paragraph 81 are undisputed.
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 22 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
23/89
22
whom he has had several meetings, of the wrongdoing that was alleged by
Revenue employees. See response to 82, supra.
84. Plaintiff admits that the facts stated in paragraph 84 are undisputed.
85. Plaintiff admits that the facts stated in paragraph 85 are undisputed.
86. Plaintiff admits that the facts stated in paragraph 86 are undisputed.
87. Plaintiff admits that the facts stated in paragraph 87 are undisputed.
88. Plaintiff admits that the facts stated in paragraph 88 are undisputed.
89. Denied. After confirming for Kimmett that the issues reported to him
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.
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 23 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
24/89
23
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.
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 24 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
25/89
24
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.
95. Plaintiff admits that the facts stated in paragraph 95 are undisputed.
96. Plaintiff admits that the facts stated in paragraph 96 are undisputed.
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.
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 25 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
26/89
25
99. Plaintiff admits that the facts stated in paragraph 99 are undisputed.
100. Denied. Rovelli was upset with Kimmett when he saw that the initial
draft of the Plan of Action indicated wrongdoing had occurred in FES. See Pl.s
MSJ SOF 57; Pl.s 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).
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 26 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
27/89
26
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 27 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
28/89
27
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 28 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
29/89
28
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.
109. Plaintiff admits that the facts stated in paragraph 109 are undisputed.
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 29 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
30/89
29
110. Plaintiff admits that the facts stated in paragraph 110 are undisputed.
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.
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 30 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
31/89
30
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 31 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
32/89
31
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).
115. Plaintiff admits that the facts stated in paragraph 115 are undisputed.
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.
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 32 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
33/89
32
117. See response to paragraph 116 above.
118. Plaintiff admits that the facts stated in paragraph 118 are undisputed.
119. Admitted that Kimmett provided the Plan of Action to Roman very
early in 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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 33 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
34/89
33
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 34 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
35/89
34
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.
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 35 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
36/89
35
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.
123. Plaintiff admits that the facts stated in paragraph 123 are undisputed.
124. Admitted with the explanation that Roman, who was responsible for
reviewing Kimmett, did not know why Kimmett received a pay raise above the
average, and he was not the one who decided the amount of raise Kimmett would
receive. Pl.s 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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 36 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
37/89
36
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 37 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
38/89
37
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.
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 38 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
39/89
38
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).
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 39 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
40/89
39
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 40 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
41/89
40
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 41 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
42/89
41
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.
134. Plaintiff admits that the facts stated in paragraph 134 are undisputed.
135. Plaintiff admits that the facts stated in paragraph 135 are undisputed.
136. Plaintiff admits that the facts stated in paragraph 136 are undisputed.
137. Denied insofar as Kimmetts attorney had conversations with the FBI
prior to filing suit. Subsequent to his communications with the Assistant United
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 42 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
43/89
42
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.)
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 43 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
44/89
43
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.
140. Plaintiff admits that the facts stated in paragraph 140 are undisputed.
141-42. Denied. Hudic told Kimmett he was reaching out to Nutt and
Corbett. Pl.s 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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 44 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
45/89
44
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,
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 45 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
46/89
45
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.
145. Plaintiff admits that the facts stated in paragraph 145 are undisputed.
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.
148. Plaintiff admits that the facts stated in paragraph 148 are undisputed.
149. Plaintiff admits that the facts stated in paragraph 149 are undisputed.
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 46 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
47/89
46
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 47 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
48/89
47
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 48 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
49/89
48
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
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 49 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
50/89
49
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-
Case 4:08-cv-01496-JEJ-TMB Document 161 Filed 08/19/2010 Page 50 of 89
-
8/7/2019 Kimmett v Corbett - Counter Statement to Defendants Statement of Facts - Pennsylvania Corbett Case Fraud Wast
51/89
50
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