SMITH, District Judge.
The First Amendment generally prohibits public employers from taking adverse employment actions against an employee based on their political affiliation if the employee is not in a policy-making or advisory position. In this action, a former director of public works for Lackawanna County has sued the county and two of the three county commissioners because they allegedly violated his First Amendment right of freedom of association when they terminated his employment with the county and replaced him with an individual that associated politically with one of the commissioners. The defendants have moved for summary judgment claiming that, inter alia, (1) the plaintiff has failed to produce sufficient evidence to establish a prima facie case of political patronage discrimination, (2) the defendants would have reached the same decision regarding the plaintiff's employment regardless of his engaging in protected activity, and (3) the plaintiff's claims against the commissioners are barred by the doctrines of qualified immunity and legislative immunity. After reviewing the applicable record, the uncontroverted
The plaintiff, John Eastman, commenced this action by filing a complaint on March 25, 2013, against the defendants, Lackawanna County, Corey O'Brien ("O'Brien"), and Jim Wansacz ("Wansacz"). Doc. No. 1. The case was originally assigned to the Honorable Christopher C. Conner. The defendants filed an answer to the complaint on May 28, 2013. Doc. No. 12. The defendants filed a motion for summary judgment, statement of undisputed material facts, appendix, and supporting brief on March 7, 2014. Doc. Nos. 23-26. After Chief Judge Conner granted the plaintiff's motion to exceed certain page restrictions on March 24, 2014, the plaintiff filed a counter statement of facts, appendix, and brief in opposition to the motion for summary judgment. Doc. Nos. 29-34. The defendants then filed a response to the plaintiff's statement of facts and a reply brief on April 10, 2014. Doc. Nos. 35, 36.
On August 13, 2014, Chief Judge Conner recused himself from the case and stayed the matter pending redesignation to a district judge outside of the Middle District of Pennsylvania. Doc. No. 39. The Honorable Theodore A. McKee of the United States Court of Appeals for the Third Circuit reassigned the case to the undersigned on September 4, 2014. Doc. No. 40.
Three elected commissioners run the Lackawanna County government. Pl.'s App. of Exs. in Connection with Pl.'s Opp. to Defs.' Mot. for Summ. J. ("Pl.'s App.") at Ex. 4, Oral Dep. of Patrick M. O'Malley ("O'Malley Dep. Tr.") at 5. The commissioners always include two members from one political party and one commissioner from the other party. Id. After the election in November 2007, O'Brien and Michael Washo ("Washo"), were two of three individuals sworn-into office in January 2008 as county commissioners in Lackawanna County. Pl.'s App. at Ex. 1, Rule 30(b)(6) Deposition of Lackawanna Cnty. by and Through its Designee, Maria Elkins ("Elkins 2013 Rule 30(b)(6) Dep. Tr.") at 28.
In early 2008, and shortly after the county commissioners were sworn into office, Lackawanna County opened up the hiring process and allowed members of the public to apply for a variety of positions in the county. Pl.'s App. at Ex. 3, Rule 30(b)(6) Dep. of Lackawanna Cnty. by and Through its Designee, Elizabeth Randol ("Randol 2009 Rule 30(b)(6) Dep. Tr.") at 96-97. Thus, a large number of Lackawanna County employees, including almost all of the cabinet-level or director-level employees, had to reapply for their positions if they wanted to keep their jobs. Elkins 2013 Rule 30(b)(6) Dep. Tr. at 28. As part of this process, the county terminated the employment of numerous existing employees and hired numerous new employees. Id. The county's termination
During the 2008 hiring and firing period, the county created a director-level position for the director of public works. Randol 2009 Rule 30(b)(6) Dep. Tr. at 100-01.
As Lackawanna County's director of public works, the plaintiff's activities, duties, and accomplishments were as follows:
2011 was an election year for the Lackawanna County Commissioners. Elkins 2013 Rule 30(b)(6) Dep. Tr. at 29. In September 2011, the plaintiff paid $250 to the Friends of Wansacz and O'Brien, the political committee of O'Brien and Wansacz, to participate in a campaign golf outing. Eastman Dep. Tr. at 108, 100, 112, 118. Although the plaintiff recognized that the county had a policy preventing him from being a "vocal" supporter of a candidate, he also recognized that the golf outing was to raise money for the political committee. Id. at 109, 114. Although the plaintiff asserts that he attended the events because he wanted to golf, eat a good meal, and network with his "fellow people," he acknowledged that he was there to support O'Brien and Wansacz "because they're going to be your boss." Eastman Dep. Tr. at 108, 114-17. The plaintiff saw Wansacz and O'Brien at the golf outing, and they thanked him for being there. Id. at 118.
In November 2011, Lackawanna County held the election for the three county commissioners. Elkins 2013 Rule 30(b)(6) Dep. Tr. at 29. O'Brien and Wansacz, both Democrats, won two of the positions and Patrick O'Malley, a Republican, won the other position. Id. at 29, 30; O'Malley Dep. Tr. at 4, 5, 6, 41. O'Brien and Wansacz, as Democrats, constituted the majority commissioners, and O'Malley was the minority commissioner. Elkins 2013 Rule 30(b)(6) Dep. Tr. at 29-30; O'Malley Dep. Tr. at 6.
In December 2011, despite not yet having been sworn into office, Commissioner Wansacz created a search committee that was responsible for reviewing the duties of various county employees. Eastman Dep. Tr. at 100; Defs.' App. at Ex. F, Oral Deposition of Jim Wansacz ("Wansacz Dep. Tr.") at 14.
The three county commissioners were sworn into office in January 2012. Compl. at ¶ 22; Answer at ¶ 22; O'Malley Dep. Tr. at 5. The plaintiff provided The Friends of Wansacz and O'Brien with a check dated January 19, 2012, in the amount of $150.00, for him and his wife to attend the inauguration dinner for O'Brien and Wansacz. Eastman Dep. Tr. at 119-20. The plaintiff and his wife attended the inauguration dinner, they saw O'Brien and Wansacz at the event, and O'Brien and Wansacz thanked him for coming and said that it was nice meeting his wife. Id. at 120.
Other than the two checks, the plaintiff did not provide any additional money to the campaign of Wansacz and O'Brien, he did not attend any other political events, place signs in his yard, place bumper stickers on his vehicle, work the polls, or make phone calls for them. Id. at 121, 161-62. He did not provide any help to their campaigns other than financial support and attendance at the golf outing. Id. at 122. The plaintiff "probably told" his mother to vote for O'Brien and Wansacz. Id. at 122. The plaintiff also believes that he voted in that election and voted for O'Brien and Wansacz despite not living in Lackawanna County at the time of the election. Id.
Shortly after the three commissioners were sworn into office in January 2012, the county announced via letter to some of the existing employees that it was going to place advertisements in the newspaper indicating that it was accepting applications for various positions in the county. Elkins 2013 Rule 30(b)(6) Dep. Tr. at 16; O'Malley Dep. Tr. at 5; Eastman Dep. Tr. at 95; Defs.' App. at Ex. E, Oral Dep. of Lackawanna Cnty. Commissioner Corey O'Brien ("O'Brien Dep. Tr.") at 68, 70.
The January 2012 advertisements included advertisements for 28 deputy or deputy director positions and 15 to 20 solicitorships. Id. at 17. Essentially, all nonunion, noncivil service employees had to reapply to potentially keep their jobs. Id. at 72.
The county advertised the position of director of public works, and the plaintiff was one of the county employees that received a letter from the commissioners inviting him to reapply for county employment. Eastman Dep. Tr. at 95; Elkins 2013 Rule 30(b)(6) Dep. Tr. at 50.
The plaintiff participated in an interview with the three commissioners in February 2012. Id. at 100-01. The interview lasted approximately 75 minutes. Id. During the interview, the plaintiff told the commissioners that he was there to help them look good, and he would do his "best to make sure that you always look good and, you know, the buildings, grounds, roads and bridges will be done in an impeccable standard." Id. at 103. The commissioners also informed the plaintiff that they were thinking of restructuring his position, "going in a little different direction with you," and possibly reassigning some of his duties. Id. at 104.
During the interview process, the commissioners also interviewed Chester Lenceski for the director of public works position. O'Malley Dep. Tr. at 64; Defs.' App. at Ex. H, Oral Dep. of Chester A. Lenceski, III ("Lenceski Dep. Tr.") at 26. Lenceski has a high school diploma, and he had prior work experience as a carpenter and as the head of preventative maintenance for Clarks Summit State Hospital. Lenceski Dep. Tr. at 5-20; Pl.'s App. at Ex. 7, Lenceski Resume. Lenceski had received notice of the job posting via a newspaper posting, and he applied for the job thereafter. Lenceski Dep. Tr. at 23.
Lenceski is a registered Democrat, and prior to the 2011 primary election, he had provided $500 to the Wansacz campaign while attending a fundraising event with his wife at the Scranton Country Club.
O'Brien and Wansacz told Elkins to tell the plaintiff of his discharge. Elkins 2013 Rule 30(b)(6) Dep. Tr. at 14. They also told her that they were going to change the position of director of public works to director of maintenance. Id. at 51. They did not inform Elkins of the reason for discharging the plaintiff. Id. at 134-35.
In late-March 2012, Elkins informed the plaintiff of his termination. Id. at 39.
In or around the time of the plaintiffs firing, the county commissioners decided to hire Lenceski. Elkins 2013 Rule 30(b)(6) Dep. Tr. at 51, 52, 53, 54; O'Brien Dep. Tr. at 92-95. In particular, O'Brien and Wansacz signed a request for approval to hire Lenceski that was dated March 28, 2012. Id. at 53, 54, 55; Pl.'s App. at Ex. 8, 3-28-12 Request for Approval of Hire.
During a Salary Board meeting on April 25, 2012, the county (1) eliminated the director of public works position, (2) created the position of director of maintenance, (3) eliminated the deputy director of roads and bridges position, and (4) created the position of director of roads and bridges. O'Brien Dep. Tr. at 91, 101-04; Elkins 2013 Rule 30(b)(6) Dep. Tr. at 9-10, 38-39; Pl.'s App. at Ex. 9, Salary Bd. Meeting Minutes for 4-25-12. Larry Lukasik became the director of roads and bridges and Lenceski became the director of maintenance.
A district court "shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Additionally, "[s]ummary judgment is appropriate when `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Wright v. Corning, 679 F.3d 101, 103 (3d Cir.2012) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)). An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law." Id.
The party moving for summary judgment has the initial burden "of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). Once the moving party has met this burden, the non-moving party must counter with "`specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted); see Fed.R.Civ.P. 56(c) (stating that "[a] party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record ...; or ... [by] showing that the materials cited do not establish the absence ... of a genuine dispute"). The non-movant must show more than the "mere existence of a scintilla of evidence" for elements on which the non-movant bears the burden of production. Anderson, 477 U.S. 242, 252, 106 S.Ct. 2505 (1986). Bare assertions, conclusory allegations, or suspicions are insufficient to defeat summary judgment. See Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir.1982) (indicating that a party opposing a motion for summary judgment may not "rely merely upon bare assertions, conclusory allegations or suspicions"); Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir.1999) (explaining that "speculation and conclusory allegations" do not satisfy non-moving party's duty to "set forth specific facts showing that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor."). Additionally, the non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir.2000). Moreover, arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir.1985).
"When considering whether there exist genuine issues of material fact, the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v. Potter, 476 F.3d 180,
The plaintiff brings the instant action under 42 U.S.C. § 1983, which provides in pertinent part as follows:
Id. "Section 1983 `is not itself a source of substantive rights,' but merely provides `a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). "The first step in any such claim is to identify the specific constitutional right allegedly infringed." Id. (citations omitted).
Here, the plaintiff asserts that the defendants discriminated against him because he exercised his First Amendment right of freedom of association. Compl. at ¶ 49. The First Amendment, applied to the states through the Fourteenth Amendment, protects individuals' rights to "associate with others for the common advancement of political beliefs and ideas." Kusper v. Pontikes, 414 U.S. 51, 56, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973) (citations omitted). To establish a prima facie case for discrimination on the basis of political affiliation (or political patronage), an employee must prove that "(1) [the employee] was employed at a public agency in a position that does not require political affiliation, (2) [the employee] was engaged in constitutionally protected conduct, and (3) this conduct was a substantial or motivating factor in the government's employment decision." Galli v. New Jersey Meadowlands Comm'n, 490 F.3d 265, 271 (3d Cir.2007) (citation omitted). If the employee satisfies these elements the governmental entity "may `avoid a finding of liability by proving by a preponderance of the evidence that the same employment action would have been taken even in the absence of the protected activity.'" Id. (quoting Stephens v. Kerrigan, 122 F.3d 171, 176 (3d Cir.1997)).
In the instant motion for summary judgment, the defendants raise six arguments in support of their assertion that the court should grant the motion. The first three arguments relate to their claim that the plaintiff has failed to establish a prima facie case: First, the defendants claim that the plaintiff has not established the first element of the prima facie case because his former position as director of public works for the county required political affiliation and was therefore exempt from First Amendment protection. See Defs.' Br. in Supp. of Mot. for Summary J.
For their fourth argument, the defendants assert that even if the plaintiff has produced sufficient evidence to establish a prima facie case of political patronage discrimination, the court should still grant their motion because the evidence demonstrates that they would have reached the same decision to eliminate the director of public works position regardless of whether the plaintiff exercised his First Amendment rights. Id. at 14-16. The defendants' final two arguments relate to immunity issues: they claim that O'Brien and Wansacz are entitled to qualified immunity and legislative immunity for their actions.
As discussed below, the court has reviewed the evidence of record in the light most favorable to the plaintiff, as the party opposing summary judgment, and has resolved any reasonable inferences in his favor. Nonetheless, the evidence in the record shows that no fair-minded jury could find in the plaintiffs favor because he cannot establish the second and third elements of a prima facie case.
For purposes of this motion only, presuming that the evidence in the record satisfied the first element of the prima facie case, i.e. that he was employed at a public agency in a position that does not require political affiliation; the plaintiff would also have to show that he engaged in constitutionally protected conduct. A plaintiff can satisfy the second prong of a prima facie political discrimination claim if the plaintiff: (1) "suffers because of active support for a losing candidate within the same political party;" (2) "fail[s] to support the winning candidate;" or (3) "fail[s] to engage in any political activity whatsoever." Galli v. New Jersey Meadowlands Comm'n, 490 F.3d 265, 272-73 (3d Cir. 2007) (citations omitted).
The defendants contend that the plaintiff was not engaged in constitutionally protected conduct because "[i]t is undisputed that [he] was a political supporter of Messrs. O'Brien and Wansacz and actively supported them in the 2011 County commissioners' election." Defs.' Br. at 10. In this regard, they point out that the plaintiff contributed to The Friends of Wansacz and O'Brien, attended a campaign golf outing, voted for them, probably encouraged his mother to vote for them, and attended their inauguration party. Id. Because of this undeniable support for O'Brien and Wansacz, the defendants assert that the plaintiff has not implicated any right of non-association that would be actionable and, as such, no reasonable jury could conclude that the plaintiff did not support O'Brien's and Wansacz's campaigns. Id. at 10-12.
In response to the defendants' arguments, the plaintiff contends that "[f]he evidence reveals that [he] was terminated for his political non-association with defendants Wansacz and/or O'Brien." Pl.'s Br. at 9. The plaintiff maintains that the First Amendment prohibits the defendants from
Although the plaintiff recognizes the defendants' references to the alleged incidents of his support to Wansacz and O'Brien, he argues that the Constitution does not require him to completely support or shun a candidate and, regardless, the evidence demonstrates that he did not actually politically support Wansacz or O'Brien. Id. at 15-17. With regard to the golf outing and $250 contribution to The Friends of Wansacz and O'Brien, the plaintiff notes that he testified at his deposition that he attended the outing merely to play golf, enjoy a meal, and network with contractors that he dealt with on a regular basis. Id. at 16. Concerning the inauguration party, the plaintiff insists that he was there to support his new bosses and doing so does not constitute political affiliation with O'Brien and Wansacz. Id. He characterizes those instances as "marginal" support and not as "active political associations." Id. at 15-16. Moreover, he claims that those instances are particularly minimal when compared to the "significant political and personal relationship" between Lenceski and Wansacz. Id. at 17. Therefore, the plaintiff contends that the court should reject the defendants' arguments that he did not engage in constitutionally protected conduct and a jury should determine whether the plaintiff was a political associate of O'Brien and Wansacz. Id. at 19-20.
After reviewing the evidence, the court agrees with the defendants that no reasonable jury could possibly find that the plaintiff engaged in constitutionally protected conduct as applicable to this type of political patronage case.
In the first instance, it is undeniable that the plaintiffs campaign contribution to The Friends of Wansacz and O'Brien acts in a manner to associate him with them. See Buckley v. Valeo, 424 U.S. 1, 21, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) ("Making a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals."); see also Fed. Election Comm'n v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431,
Here, the plaintiff, despite asserting that Lackawanna County policy prevented him from being a "vocal supporter" of a candidate, attended a political function in the nature of a golf outing for The Friends of Wansacz and O'Brien in mid-September 2011. See Eastman Dep. Tr. at 109-18. He acknowledged that the $250 check that he wrote to this political committee went (at least in part) towards supporting O'Brien and Wansacz to get elected. Id. at 116-17, 118. He saw O'Brien and Wansacz while at the outing, they thanked him for coming, and he even had his picture taken with them. Id. at 118-19.
In addition to these overt demonstrations of political support for Wansacz and O'Brien, the plaintiff decided that he also would pay $150 to The Friends of Wansacz and O'Brien to attend Wansacz and O'Brien's inauguration party in January 2011. Id. at 119-20. Approximately 400 to 500 people attended the party, and the plaintiff brought his wife to the event as well. Id. at 120. Once again, the plaintiff and his wife saw O'Brien and Wansacz at the event, had them thank him for coming and indicate that they enjoyed meeting his wife. Id. at 120.
The plaintiffs explanations for these contributions; namely, that he attended the golf outing "to play golf, enjoy a meal and network," or that he attended the inauguration party simply to show "respect for his bosses," could not change these association to non-association because by the acts' very nature, they (in particular the attendance and contribution for the golf outing, a campaign event) constitute forms of association.
In addition, while the plaintiff attempts to create a classification of non-association by designating his activities as not constituting "active political associations," he has not cited any relevant legal support for this principle and this court has found none. He also designates his activities as not constituting "active political associations" despite conversely characterizing Lenceski's actions in relation to this particular political campaign, namely a $500 campaign contribution prior to the primary election and attendance at one unknown-type of political event, as active political association.
At the time the plaintiff obtained the sign, a member of the then-mayor's security detail observed the plaintiff. Id. at 566-67. The next day, a police lieutenant informed the plaintiff that he was being transferred out of the office and demoted to walking patrol. Id. at 567. Based on the demotion, the plaintiff brought an action against the city, the mayor, the city's police chief, and the city's police director because they allegedly retaliated against him for his exercise of his First Amendment freedoms of speech and association. Id. at 566.
The defendants moved for summary judgment claiming that the plaintiff had not engaged in any protected speech and he had not properly asserted a freedom of association claim. Id. at 569. With respect to the freedom of association claim, the district court determined that there was no genuine issue of material fact as to whether the plaintiff associated himself with the mayoral campaign because his acts of picking up the sign for his mother or his "passive well-wishing based on friendship" were not done "with the intent of furthering the goals of the campaign or promoting a message." Id. at 579. Instead, the plaintiff "merely picked up the sign as an accommodation to his ailing mother, and he has never claimed otherwise." Id. at 579-80.
Heffernan is distinguishable from the facts in this case because the court there had to essentially examine whether a public employee's act in picking up yard signs for his mother, without any other action relating to the mayoral campaign, could constitute a form of association. Here, we are not dealing with an issue as to whether the plaintiffs conduct in contributing to O'Brien and Wansacz's campaigns and attending their campaign golf outing, voting for them, and attending their inauguration party are acts of association. In particular, the attendance at the golf outing and submitting a campaign contribution through that event, are clearly acts of active political association with a candidate. Thus, unlike in this case, Heffernan did not involve
The second case referenced by the plaintiff and requiring more specific attention is Wuestling v. Lackawanna County, No. 3:12-CV-660, 2013 WL 785260 (M.D.Pa. Mar. 1, 2013). In Wuestling, the
The defendants moved to dismiss the complaint arguing that, inter alia, Wuestling did not include sufficient allegations to establish a prima facie case insofar as he did not engage in constitutionally protected conduct, i.e. non-association, because he had provided O'Brien and Wansacz with financial support and had signed O'Brien's nominating position. Id. at *3. Judge Connor rejected the defendants' arguments because Wuestling had alleged that the defendants terminated his employment because of a lack of political support as evidenced by being replaced with a known political supporter. Id. (citing Bennis v. Gable, 823 F.2d 723, 731 (3d Cir.1987)). Nonetheless, Judge Connor also noted the following:
Id. at *4.
Even if Judge Connor's well-reasoned analysis of the issue was binding on this court, which it is not, Judge Connor left open the determination as to whether Wuestling's actions constituted political support under the law. He appears to also have left opened the question as to whether Wuestling could show that he was not associated with the defendants. Here, we have a full and complete evidentiary record showing that the plaintiff went beyond what Wuestling did (to the extent such a comparison is appropriate). At a minimum, the plaintiff attended a political event and provided a $250 campaign contribution (even if some of it went towards greens fees or other expenses). He attended an event with other individuals presumably supporting the campaigns of O'Brien and Wansacz. Thus, again, he cannot show non-association.
The court recognizes that the Third Circuit has concluded that constitutionally protected conduct in the form of a failure to support a candidate can be demonstrated by a "demotion to make positions available for political supporters." Bennis v. Gable, 823 F.2d 723, 731 (3d Cir.1987). Contrary to the plaintiff's apparent argument, Bennis does not stand for the proposition that a plaintiff can avoid showing that he or she exercised a constitutional right if he or she can show that action was taken (or not taken) to "make room" for a political supporter of a defendant. Instead, the Bennis court determined that in certain cases, a defendant's action to make room for the defendant's political supporters could establish this second element of the prima facie case because it could implicitly show a failure to support, which is an exercise of freedom of association. Id. While the plaintiff alleges that he was terminated to "make room" for Lenceski, a political supporter of Wansacz, which would seem to fall under Bennis, the facts here are dissimilar because a reasonable
The defendants also contend that the plaintiff cannot establish the third and final element of the prima facie case because he cannot demonstrate that his engagement in constitutionally protected conduct was a substantial or motivating factor for O'Brien's and Wansacz's employment decision. Defs.' Br. at 13. With regard to this final element, "`implicit in th[is] prong is a requirement that the plaintiff produce sufficient evidence to show [that] the defendant knew of [the] plaintiffs political persuasion,' which requires proof of both knowledge and causation." Galli v. New Jersey Meadowlands Comm'n, 490 F.3d 265, 275 (3d Cir.2007) (quoting Goodman v. Pennsylvania Turnpike Comm'n, 293 F.3d 655, 664 (3d Cir.2002)).
The defendants argue that the evidence unequivocally shows that O'Brien and Wansacz had no knowledge that the plaintiff did not support them in their campaigns for county commissioner. Defs.' Br. at 13. In addition, they point out that the plaintiff admitted that he never informed O'Brien or Wansacz he did not support them or that they would have any reason to believe that he did not support them. Id. As he did in fact support them, the defendants assert that the plaintiff has not established this final element. Id.
The plaintiff claims that the defendants arguments "miss[] the point." Pl.'s Br. at 20. He asserts that
Id. at 20-21 (emphasis added). Thus, the plaintiff's argument essentially amounts to his assertion that he satisfies this final element because the evidence shows that Wansacz and/or O'Brien knew that Lenceski supported Wansacz, and they knew that the plaintiff was not close to either of them. Id. at 21.
While the plaintiff presents a persuasive argument regarding the importance of knowledge of a public employee's political affiliation in a failure to support case, he has cited no Third Circuit authority to support this assertion. The only case cited by the plaintiff in support of this proposition, Conjour v. Whitehall Township, 850 F.Supp. 309 (E.D.Pa.1994), is also not dispositive.
Presuming that the plaintiff has demonstrated that he was employed in a position as Lackawanna County director of public works that did not require political affiliation, he still cannot establish a prima facie case of political patronage discrimination because no reasonable jury could conclude that (1) he engaged in constitutionally protected activity, and (2) his exercise of constitutionally protected activity in the nature of supporting Wansacz and O'Brien was a substantial or motivating factor in terminating his employment as the director of public works. The court's disposition of these claims also moots the plaintiff's claim against the county and his claim for punitive damages. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (explaining that a constitutional claim under 42 U.S.C. § 1983 can generally not lie against a governmental body unless an individual employee has violated a plaintiff's constitutional rights). Therefore, the court will grant the defendants' motion for summary judgment.
An appropriate order follows.
The greater distinction between the two men, per the plaintiff, was Lenceski's maintenance of a friendship with Wansacz's wife, with whom he attended high school, the fact that Wansacz currently lives in the same town as Lenceski, Wansacz's visit to Lenceski's mother's house (while Lenceski resided there) during a prior campaign, and Lenceski's attendance at Wansacz's house for a New Year's Eve party years ago. Id. at 11-12; see also Lenceski Dep. Tr. at 50.
The plaintiff also references campaign contributions by Lenceski's uncle, Ron Koldjeski ("Koldjeski"), to O'Brien's campaign for county commissioner in 2007. Pl.'s Br. at 11. It appears that he gave almost $9,000 to that campaign. Pl.'s App. at Exs. 11, 12. The plaintiff has attempted to link these contributions to O'Brien's decision to hire Lenceski despite (1) the contributions occurring in 2007, (2) Lenceski testifying that he did not tell Koldjeski that he was applying for county employment, see Lenceski Dep. Tr. at 39, (3) no evidence in the record showing that O'Brien or Wansacz knew Lenceski was Koldjeski's nephew, and (4) O'Brien's testimony that he never saw Koldjeski prior to his job interview, see O'Brien Dep. Tr. at 97-98.
The district court then explained that the plaintiff must still prove that political affiliation was a "`substantial and motivating factor'" in his termination. Id. (quoting Bennis, 823 F.2d at 732). In examining this element, the court reviewed the evidence in the record, which showed that the new executive attempted to replace the plaintiff as chief of police with one of her friends that had supported her campaign. Id. The court determined that this record created a disputed issue of material fact that "protected activity was a substantial or motivating factor in the employment decision." Id.
Additionally, the court's conclusion that there are no genuine issues of fact as to whether the plaintiff has established a prima facie case of political patronage discrimination, renders moot any discussion as to whether the defendants could show that they would have still reached the same decision to terminate the plaintiff's employment, hire Lenceski, and restructure the positions. Furthermore, the court need not address the defendants' claims of qualified immunity or legislative immunity.
