TUCKER, District Judge.
Presently before the Court is Defendant's Motion for Summary Judgment (Docs. 13 & 15) and Plaintiff's Response in Opposition thereto (Doc. 14). Upon consideration of the parties' motions with briefs and exhibits, and for the reasons set forth below, Defendant's Motion will be
Plaintiff John J. Murphy ("Murphy") brings this action against Defendant Radnor Township ("Radnor" or the "Township") for alleged violations of the Uniform Services Employment and Reemployment Act ("USERRA"), 38 U.S.C. § 4301 et seq., and the Pennsylvania Military Affairs Act ("PMAA"), 51 Pa. Cons.Stat. § 7301 et seq. Murphy alleges the Township impermissibly discriminated against him on account of his military and/or reserve obligations, and thereby failed to hire him for the position of Township Manager. Plaintiff requests the Court: (1) declare the practices of the Defendant to be violative of the USERRA and PMAA; (2) order Defendant to render back pay, front pay, and compensatory damages; and (3) instate Plaintiff to the position of Township Manager or to a position of similar responsibilities and pay.
Plaintiff Murphy entered the Air Force in 1997 and served on full-time active duty until September 2002. From September 2002 to present, he has served in the active reserves, currently holding the rank of major. Murphy was Deputy Administrator for the City of Wilkes-Barre from July 2002 to January 2004, and City Administrator from January 2004 to March 2010. During his employment with City of Wilkes-Barre, Murphy was deployed as part of his duty in the active reserves. From March 2008 to October 2008, Murphy was stationed in Djibouti, Africa, where he was Director of the Personnel Recovery Center, Combined Task Force. In this position, Murphy coordinated search and rescue operations in fourteen countries. Murphy also served as Watch Supervisor, Air Rescue Coordination Center, at Tyndall Air Force Base in Virginia.
In June 2009, Murphy applied for the position of Township Manager for the Defendant. At that time, John Granger ("Granger") was serving as Interim Township Manager.
Granger called Murphy on July 16, 2009 to schedule his interview. According to Murphy, Granger expressed the following:
(Murphy Dep. at 31.) On June 27, 2009, while the vetting process was still going on, Commissioner Thomas Masterson (who was also President of the Board of Commissioners) received a call from Congressman Patrick Murphy. Congressman Murphy is Plaintiff Murphy's brother. Congressman Murphy left a voicemail for Commissioner Masterson stating, "I'm calling on behalf of my brother's application for township manager with Radnor. Please call me." This call was not returned by Commissioner Masterson, and it appears all or most of the other Commissioners and Granger did not know about the phone call until after the Plaintiff's interview.
Murphy's interview was held on July 22, 2009. The interview lasted approximately forty-five minutes and was attended by Interim Manager Granger and Commissioners Masterson, John Fisher ("Fisher"), Enrique Hervada ("Hervada"), and Hank Mahoney ("Mahoney"). Murphy's military experience and reserve obligations were discussed for at least ten minutes of his forty-five minute interview with the Board. Masterson, as President, led the questioning of all the candidates, including Murphy. Murphy characterizes the interaction as being "grilled" by Masterson. Murphy mentioned that his reserve obligations would require him to be gone approximately
At some point during this line of questioning, Granger became concerned that the Board was focusing too heavily on Murphy's military commitments. Granger testified that he essentially told the Board to "shut up," after which point the Board's tone changed to asking more about Plaintiff's actual duties in the military, rather than the amount of time he spent performing them. Murphy, sensing that the interview was "going south," informed the Board that he would be willing to move to inactive reserves to secure the position of township manager.
Ultimately, on July 27, 2009, Granger returned a message left for him by Murphy regarding the results of his interview. According to Murphy, Granger informed him that he was one of the top four candidates for the position, but the Board was only going to invite three candidates back for a second interview. Further, Murphy alleges that Granger specifically informed him that "[he] was right there in the top four, but that the commissioners had serious reservations about [his] ongoing military obligation.
Candidates Miller and Kraynik were offered second interviews, after which Miller was extended a job offer. After Miller turned down the job, Kraynik was offered the position. Kraynik also rejected the job. After Miller and Kraynik rejected the Township's job offers, the Board then decided to give a second interview to Candidate Canavan, who was initially rejected for a second interview. After being offered the position, Canavan also rejected the job offer. At this point Candidate Zienkowski, who for personal reasons had previously withdrawn his name from consideration after his first interview, then let it be known that he was now interested in the job. Zienkowski was given a second interview, after which he was offered the job and accepted it.
Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed R. Civ. P. 56(c); see also Levy v. Sterling Holding Co., LLC, 544 F.3d 493, 501 (3d Cir.2008). A factual dispute between the parties will not defeat a motion for summary judgment unless it is both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir.2008). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir.2002).
The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. See Celotex v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has carried its burden under Rule 56, "its' opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686
At the summary judgment stage the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505; Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir.2007). In doing so, the court must construe the facts and inferences in the light most favorable to the non-moving party. See Horsehead Indus., Inc. v. Paramount Communications, Inc., 258 F.3d 132 (3d Cir.2001). The court must award summary judgment on all claims unless the non-moving party shows through affidavits or admissible evidence that an issue of material fact remains. See, e.g., Love v. Rancocas Hosp., 270 F.Supp.2d 576, 579 (D.N.J.2003); Koch Materials Co. v. Shore Slurry Seal, Inc., 205 F.Supp.2d 324, 330 (D.N.J.2002).
Radnor Township asserts that it is entitled to summary judgment, pursuant to Fed.R.Civ.P. 56, because no genuine issue as to a material fact exists as to whether it would have hired Murphy even without the alleged improper consideration of Murphy's military service and commitments. The Court agrees with the Defendant.
The Uniformed Services Employment and Reemployment Rights Act ("USERRA") provides, in relevant part, as follows:
38 U.S.C. § 4311(a). It elaborates further: "An employer shall be considered to have engaged in actions prohibited ... under subsection (a), if the person's membership... is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership." Id. at § 4311(c) (emphasis). Thus the statute, by its terms, prohibits discriminatory actions where a person's military status is simply a motivating factor, not the sole motivating factor.
An employee (or, in this case, potential employee) making a USERRA discrimination claim shoulders "the initial burden of showing by a preponderance of the evidence that the employee's military service was `a substantial or motivating factor' in the adverse employment action." Sheehan v. Department of the Navy, 240 F.3d 1009, 1013 (Fed.Cir.2001) (quoting National Labor Relations Bd. v. Transportation Management Corp., 462 U.S. 393, 400-01, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) abrogated by Director, Office of Workers' Compensation v. Greenwich Collieries, 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994) (on other grounds)). "If this requirement is met, the employer then has the opportunity to come forward with evidence to show, by a preponderance of the evidence, that the employer would have taken the adverse action anyway, for a valid reason." Sheehan, 240 F.3d at 1013. "The factual question of discriminatory motivation or intent may be proven by either direct or circumstantial evidence." Id. at 1014 (citations omitted). Under USERRA, discriminatory motive
Id. In order to determine whether "the employee has proven that his protected status was part of the motivation for the agency's conduct, all record evidence may be considered," including the employer's explanation for the actions taken. Id. Once the employee has met this burden, "the burden shifts to the employer to prove the affirmative defense that legitimate reasons, standing alone, would have induced the employer to take the same adverse action." Id.
Radnor Township first argues that Murphy has produced no direct evidence of discrimination, and therefore this case is properly analyzed pursuant to the burden-shifting framework articulated by the Supreme Court McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Court disagrees with the Township on both accounts.
The Supreme Court has stated that USERRA is "very similar to Title VII," which of course "prohibits employment discrimination `because of ... race, color, religion, sex, or national origin' and states that such discrimination is established when one of those factors `was a motivating factor for any employment practice, even though other factors also motivated the practice.'" Staub v. Proctor Hosp., ___ U.S. ___, 131 S.Ct. 1186, 1191, 179 L.Ed.2d 144 (2011) (citing 42 U.S.C. §§ 2000e-2(a), (m)). However, analysis of USERRA claims is a two-pronged burden shifting analysis. Hart v. Hillside Twp., CIV.A. 03-5841, 2006 WL 756000 (D.N.J. Mar. 17, 2006) aff'd sub nom. Hart v. Twp. of Hillside, 228 Fed.Appx. 159 (3d Cir.2007). This is markedly different from the three-pronged McDonnell Douglas burden shifting analysis used in Title VII cases, where the burden of persuasion always remains with the employee. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Accordingly, if Murphy is able to produce either direct or circumstantial evidence that his military obligations were a motivating factor in the Township's decision not to grant him a second interview and/or hire him, the burden of persuasion then shifts to the Township to prove it had legitimate, nondiscriminatory reasons for making its decision.
The Court finds that there are two possible instances that give rise to direct evidence of the Township discriminating against Murphy based on his military status. These are: (1) Granger's alleged comments to Murphy when he informed Murphy that he would not be receiving a second interview, and (2) the Board's line of questioning during Murphy's interview. As to the first instance, it must be noted that Granger has denied that he ever told Murphy that the Board's concern about his "ongoing military commitments" was the reason he was not receiving a second interview. (Granger Dep. at 68.) Further, Commissioner Masterson has testified that Granger was not authorized to speak on behalf of the Board as to the reasons candidates were not given a second interview.
Thus, there is genuine issue of material fact as to whether Granger made this comment to Murphy and, if so, whether such comment would have even been accurate. Given that only Murphy and Granger were privy to this alleged conversation, it is clearly Murphy's word against Granger's. For purposes of resolving this summary judgment motion the Court must construe the facts and inferences in the light most favorable to Murphy as the non-moving party. The Court therefore assumes that Granger made this comment.
Further, as to the second instance, Granger has not denied that, during Murphy's interview, he was "concerned" and "uncomfortable" with the extent of the questions concerning Murphy's military commitments. (Murphy Dep. at 45.) Granger has testified that he believed the Commissioners had enough information about Murphy's military commitments, and he wanted to advise the board that certain questions could be inappropriate. (Id. at 47.) Granger was unsure of whether the Commissioners had already gone over the line to improper questioning. (Id. at 48.) Granger wanted that line of questioning to stop before they possibly broke the law, and he did not know if they had already broken the law by their questioning. (Id. at 50.)
Accordingly, the Court finds Murphy has adduced sufficient direct evidence that his military commitments were a substantial
Murphy having met his initial burden, the burden now shifts to the Township to show that it would have declined to grant Murphy a second interview and/or hire him for legitimate, non-discriminatory reasons. The Township has presented four reasons why Murphy was not granted a second interview and would not ultimately have been hired: (1) Murphy was not qualified for the position of Township Manager, and there were at least four, actually qualified candidates for the position; (2) Murphy "embellished his qualifications to the point of falsity," particularly with respect to his suggestion that had formulated a financial recovery plan for Wilkes-Barre; (3) Murphy's application materials were "error riddled"; and (4) Murphy had improperly inserted his brother, a United States Congressman, into the vetting process. (Def.'s Mem. in Supp. Mot. Summ. J. 17.)
Before individually examining each of these stated reasons, the Court first must address Murphy's contention that the Court cannot rely on the testimony of the Township's deposed witnesses in resolving this motion for summary judgment. In his response to the Township's statement of disputed and undisputed facts (Doc. 19), Murphy repeatedly cites Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) for the proposition that the Township's summary judgment motion cannot be based upon the testimony of interested witnesses or any evidence the jury is not required to believe, even if the evidence is uncontradicted and unimpeached. The Court, of course, must follow the Supreme Court's holding. However Reeves does not, as Murphy suggests, require that the Court disregard the testimony of the commissioners simply because they are interested witnesses. The Third Circuit, in interpreting Reeves, has explained: "[t]he fact is that in considering a motion for summary judgment the court should believe uncontradicted testimony unless it is inherently implausible even if the testimony is that of an interested witness." Lauren W. v. DeFlaminis, 480 F.3d 259, 272 (3d Cir.2007) (emphasis added); see also Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 898 (5th Cir.2002) (definition of interested witness cannot be so broad to require rejection of company's agents' testimony regarding reasons for discharging employee; "to so hold would foreclose the possibility of summary judgment for employers, who almost invariably must rely on testimony of their agents to explain why the disputed action was taken"); Phinizy v. Pharmacare, 569 F.Supp.2d 512, 518 (W.D.Pa.2008). Thus, in considering the testimony of the commissioners, which Murphy obviously disputes, the Court is not making impermissible credibility determinations about these witnesses. Rather, the Court is examining whether their testimony is inherently implausible in light of the record or, conversely, substantiated by the record.
Defendant first moves for summary judgment on the ground that Murphy was not qualified for the position of Township Manager, and there were at least four candidates (Miller, Kraynik, Canavan, and Zienkowski) who were actually qualified for the position. In his Complaint, Plaintiff claims that he "was as qualified or more qualified for the position of Township Manager than the ... remaining applicants [who] were granted interviews."
(Pl.'s Br. Opp'n Summ. J. 15.) Notably, however, Murphy offers little evidence and no citation to legal authority to support this contention. Conversely, the Court of Appeals for the Third Circuit has held:
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994) (Title VII case; emphasis in original). "To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Id. at 765 (citing Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 533 (3d Cir.1992), cert. denied, 510 U.S. 826, 114 S.Ct. 88, 126 L.Ed.2d 56 (1993). Rather, "the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for [the asserted] non-discriminatory reasons." Id. (internal citations omitted; emphasis in original).
Murphy's blanket, unsupported assertion that he was "more qualified" than the candidates who were granted second interviews fails to satisfy this burden. The Township, conversely, argues that Murphy had insufficient experience in a municipal manager position as compared to the individuals brought back for a second interview. The candidate summaries prepared by Olpere, which aided the Board of Commissioners in choosing the first round of interviewees, fully substantiate the Township's argument. (Def.'s Ex. M: Local Government Management Services' Summaries of Candidates.) The following is a side-by-side comparison of Olpere's executive summaries:
Robert
David Christoper Zienkowski
Plaintiff Peter Miller Kraynik Canavan (fourth offer,
Candidate Murphy (first offer) (second offer) (third offer) accepted)
Qualifications Has made Municipal] Has worked 28 Dir of Land Current salary
great strides in Adm[inistrator] years in one Acquisition; $103,000 +.
turning around (Egg Harbor, community and Proj Mgr for
an economically NJ) 20 yrs. 40,000 has managed a land approvals
depressed 000 pop. large staff. (private
community. developer)
Less than 10 yrs in municipal govt. Straight-forward style. Values Municipal] Good Adj[unet] Manages a integrity. Mgr experience in Instructor in medium size Current (Phillipsburg, operations. Is public city (36,000) in combined NJ) 5 yrs competent and administration] Ohio with 250 salary (with straight-forward. employees. military) is Has (Villanova $150,000 impressive list Univ) of professional organizations to which he belongs. Dep[uty] Current salary Twp Mgr Claims Administrator] $142,886. (Towamencin excellent (Leonia, NJ) 5 Twp)lyr. leadership yrs skills. Bldg Services Seeking Exec Dir of Appears to be Coordinator] $168,000. Infrastructure well versed in (Maple Shade, Auth operations, NJ) 2 yrs. (Towamencin) economic development and strategic planning. Exec Dir of Involved in twp Authority many (Towamencin) professional and service organizations. Twp Mgr Has received (Upper Prov numerous civic Twp, DelCo 3 awards and yrs recognitions. Acting Twp Mgr; Asst Twp Mgr (Lower Gwynedd Twp) 3 yrs. Member of Lower Salford Twp (sewer) Authority
Id. As Murphy's summary states, Murphy had less than the ten years of experience that was recommended in the job announcement. Murphy counters that "all those who received a second interview had no military experience, and did not have ongoing military obligation." (Pl.'s Br. Opp'n Summ. J. 12.) While this is true, it is also true that all those who received a second interview had far more experience in municipal government than Murphy. Miller's resume demonstrates that he had thirty-two years of experience in municipal government, with increasing responsibility over a long time span. In addition, Zienkowski's summary goes on to list progressive responsibilities over a more than fifteen year career in township management.
Murphy takes particular issue with Canavan having been offered the position. Canavan, at the time he interviewed, was a Professor of Public Administration at Villanova
As Murphy suggests, it is not the place of this Court to determine whether or not Murphy was qualified for the position of township manager. However, it is also not the place of this Court to question the Township's determination that the other four candidates were more qualified that Murphy, and therefore deserving of second interviews, unless that determination was so clearly outlandish that it cannot possibly have been the Township's true reason. See Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir.1997) (citing Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir.1996) ("[F]ederal courts are not arbitral boards ruling on the strength of `cause' for [the adverse employment action]. The question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason is [discrimination].") Radnor Township has pointed to substantial evidence in the record from which no reasonable jury could fail to find that the four candidates offered second interviews (and ultimately the position) possessed certain qualifications that Murphy did not. The Court therefore finds Radnor Township's assertion that these other candidates were more qualified that Murphy to be reasonable.
If there is any single factor that played the largest role in Murphy not getting a second interview, it is likely the perception — almost universal amongst the commissioners — that Murphy had embellished his qualifications for the position of township manager. In particular, nearly all of the commissioners testified that Murphy exaggerated his role in formulating a financial recovery plan for Wilkes-Barre. As previously mentioned, Olpere sent a more detailed application to those he ranked "must interview" and "could interview." (Olpere Dep. at 16-17; Def.'s Ex. J: Murphy's Detailed Application.) Murphy, who was marked as "could interview," accordingly completed one of these detailed application. Murphy's application clearly and emphatically states that he "[s]killfully maneuvered municipality through financial recovery." (Def.'s Ex. J at 5.) Plaintiff went on to elaborate his "[c]reation of a five-year recovery plan, which led the city from the brink of bankruptcy without a bond rating to being the 3rd highest rated ("AA") city in the Commonwealth of Pennsylvania with a financial turnaround of more than $50M, as well as savings of $1.5M over four years through offering retirement incentive." Id. (emphasis added). Murphy's application goes on to give further details regarding his financial experience.
There can be little doubt that "implemented" is both connotatively and qualitatively different from Murphy's earlier claim that he "created" the financial recovery plan. The commissioners, during Murphy's interview, could not help but pick up on this fact. Masterson believed that Murphy's choice of words was "an intentional representation" on his part; that is, Murphy "intended for the reader to infer that he was the architect, that he was the spearhead for the municipality to get through this financial recovery when, in fact, during the interview, we learned that it was not ... his project that he spearheaded." (Masterson Dep. at 113-114.) Similarly, Commissioner Mahoney testified that Murphy had "exaggerated" his role in Wilkes-Barre's financial recovery, and took credit for PFM's five year plan. (Mahoney Dep. at 72, 101.) Mahoney also found Plaintiff's claim that he "skillfully maneuvered the municipality through financial recovery" to be false. (Id. at 75.) Mahoney further testified that Murphy's assertions about "creating" the financial recovery plan played a vital role in Murphy getting an interview in the first place. The commissioners, in granting Murphy an initial interview, thought they were "getting this person who was a wiz at finance, who brought [Wilkes-Barre] back from the brink. Id. at 73. Ultimately, however, the commissioners "didn't feel that the facts bore that out." (Id.)
Commissioner Fisher echoed these sentiments. Fisher had initially been keen to interview Murphy because he was impressed with Murphy's supposed financial background. (Mahoney Dep. at 38-39, 41.) However, Fisher learned in the interview that "it was actually PFM advisors who developed the plan and made it possible for the City [of Wilkes-Barre] to get funding to help turn around the financial situation." (Fisher Dep. at 73.) Fisher generally found Murphy to be an "honest" person, at least during his interview. Fisher summarized: "I believed everything he said to us was truthful. And in his honesty, it revealed the reality that he was not, in my opinion, qualified to be our Township Manager." Id. at 76. Fisher also testified that the disparity between Murphy's claims in his resume and application papers, and what he said in the interview itself, was a "big issue" in the executive session during which the commissioners voted on which candidates should be granted a second interview. Id. at 97-98. Granger, who did not have voting power on the Board, nonetheless confirms that the "general consensus" at the executive session was that Murphy had grossly overstated his qualifications, and would not be granted a second interview because of his "over characterization of his work at Wilkes-Barre." (Granger Dep. at 60-62, 80-81).
Thus, four individuals who were present at Murphy's interview have all testified that Murphy's exaggerated application materials dealt a fatal blow to his bid to become Radnor's township manager. But rather than address the substance of commissioner's concerns, Murphy merely draws on the testimony of Commissioners
In addition to the general "consensus" that Plaintiff had "exaggerated" his qualifications, there were also other deficiencies in Plaintiff's application materials. First, Commissioner Masterson noted that Murphy, in answering questions on the application, had cut and pasted from the Wilkes-Barre website, including a section about a particular speech that, as it turns out, the Mayor of Wilkes-Barre had given, not Murphy. (Masterson Dep. at 94-96.) While Masterson did not think this was necessarily a negative, he did view it as an "example of taking a shortcut." (Id. at 96.) Second, Murphy's cover letter included typographical errors, which Masterson found to be "sloppy." (Id. at 115; Def.'s Ex. K: Murphy's Cover Letter.) Masterson pointed out the typographical errors in Murphy's submissions to the other commissioners. Commissioner Fisher, for one, questioned how Murphy could be trusted to "put out communications to 35,000 residents at any given time" if he couldn't proofread his own application. (Fisher Dep. at 99.)
These errors, in and of themselves, likely would not have been enough to preclude Murphy from getting a second interview. However, when viewed in light of other perceived problems with Murphy's application, these errors were just another factor in the case against Murphy's candidacy.
Before Plaintiff Murphy was interviewed by the Board, his brother, now-former Congressman Patrick Murphy, called Commissioner Masterson on Plaintiff's behalf. (Masterson Dep. at 41.) It is undisputed that Murphy's brother left a voicemail with Commissioner Masterson, stating, "I'm calling on behalf of my brother's application for township manager with Radnor. Please call me." Id. at 42. Masterson did not return this call. Id. Defendant has argued that the call negatively influenced several Board members, and thereby contributed to the decision not to grant Murphy a second interview. Conversely, Murphy has disputed any implication that the call had a negative impact on his effort to obtain the job. In support of this contention, Murphy repeatedly cites Granger's testimony that he was never told that the voicemail was a reason Murphy did not get a second interview. (Granger Dep. at 60.) In addition, Murphy relies on Commissioner Hervada's testimony that he did not view the voicemail as a negative, and would have been surprised if the Congressman did not put in a
However, none of this creates a genuine issue of material fact. Granger did not have voting power on the Board. Hervada, meanwhile, was just one member of a seven member Board. Under Section 2.09 of the Township Charter, a majority of the seven members is required to bind the Board to a particular decision.
Moreover, other Commissioners at Murphy's interview were turned off by the fact that the Congressman was discussed during the interview.
The phone call from the Congressman must be viewed in light of the discussion of the Congressman during Plaintiff's interview. Both were viewed as negatives by many of decision makers. Both, standing alone, were legitimate reasons for not granting Murphy a second interview. It is entirely reasonable that the commissioners would be wary about the appearance of impropriety of a Congressman exerting influence over Township affairs. This concern is all the more reasonable when one considers that David Bashore, the previous township manager and the man whom Plaintiff was looking to replace, was forced to resign amid corruption allegations.
Accordingly, the Court finds all four reasons proffered by the Township are sound and well-supported. Thus, even though Murphy has established that a genuine issue of material fact exists regarding whether his military service was a substantial or motivating factor in the Township's decision, the Township still prevails on its motion for summary judgment because it has adduced sufficient evidence from which no reasonable jury could find that its reasons for not hiring Murphy were invalid. Any one of the Township's reasons for not granting Murphy a second interview, standing alone, would have been sufficient to justify its decision. Summary judgment is therefore granted in favor of the Defendant with respect to Count I of the Complaint.
The Pennsylvania Military Affairs Act ("PMAA") provides, in relevant part:
There are very few reported state or federal cases which have interpreted § 7309. However, as observed in Tukesbrey v. Midwest Transit, Inc., 822 F.Supp. 1192, 1200 (W.D.Pa.1993), the Pennsylvania legislature has indicated its intent that the provisions of Title 51 be construed "in conformity with all acts and regulations of the United States affecting the same subjects...." 51 Pa. Cons.Stat. Ann. § 103. Accordingly, the Tukesbrey court found that § 103 required it to apply the same
Thus, the Court finds that the same two-pronged analysis applied to Murphy's USERRA claim also applies to his PMAA claim. As previously discussed, Radnor Township has presented evidence of numerous legitimate non-discriminatory reasons, other than Plaintiff's military obligations, for the Board of Commissioner's decision not grant Murphy a second interview. These reasons have been considered at length in this Court's discussion of Plaintiff's USERRA claim, and therefore need not be re-examined here. Suffice it to say that Murphy's PMAA claim fails for the same reasons as his USERRA claim. Summary judgment is therefore granted in favor of the Defendant with respect to Count II of the Complaint.
For the reasons set forth above, this Court finds that the Defendant has shown that "there is no genuine issue as to any material fact and that [it is] entitled to a judgment as a matter of law." Fed. R.Civ.P. 56. Defendant's motion for summary judgment is granted on all counts.
An appropriate order follows.
