ROBERT D. MARIANI, District Judge.
On December 8, 2015, Plaintiff, Daniel Savage, filed this action against his former employer, the Pennsylvania Turnpike Commission ("the Commission") (Doc. 1). Plaintiff's three count Complaint alleges violations by Defendant of Plaintiff's constitutional right to free speech and association pursuant to 42 U.S.C. § 1983 and the Pennsylvania Constitution.
The Pennsylvania Turnpike Commission moved to dismiss the Complaint on February 12, 2016 (Doc. 8). The Court held oral argument on Defendant's Motion on June 3, 2016. By Memorandum and Order entered June 27, 2016, this Court denied the Pennsylvania Turnpike Commission's motion to dismiss while limiting Count III, brought under the Pennsylvania Constitution, to declaratory and injunctive relief. (Docs. 22, 23).
On September 14, 2017, the Commission moved for summary judgment (Doc. 54). As of November 30, 2017, all briefing by the parties was completed and the motion is now ripe for resolution. (See Docs. 55, 61, 65-67). For the reasons that follow, the Court will deny Defendant's motion.
Defendant Pennsylvania Turnpike Commission submitted a statement of material facts as to which it contends there is no dispute, in accordance with Local Rule 56.1 of the Middle District of Pennsylvania Rules of Court. (Doc. 55). Plaintiff Savage responded to the Commission's statement of material facts (Doc. 61-2). In addition, Plaintiff filed his own counter-statement of material facts (Doc. 61-2) although, as properly noted by the Commission, such a counter-statement of material facts is not contemplated by the language of Local Rule 56.1. Nonetheless, the Defendant Commission responded to the specific paragraphs of Plaintiff's counter-statement of material facts and accordingly, the undisputed material facts set forth herein are drawn from both the Defendant's statement of material facts, Plaintiff's paragraph-by-paragraph response thereto, and Plaintiff's counter-statement of material facts which was likewise responded to by the Commission in the same manner.
Except where noted, the following facts are undisputed.
The Commission is an independent agency of the Commonwealth of Pennsylvania, created to construct, operate, and maintain the Pennsylvania Turnpike, the Beaver Valley Expressway, Amos K. Hutchinson Bypass, Mon/Fayette Expressway, Southern Beltway, and Northeast Extension. (Def.'s Statement of Undisputed Material Facts ("DSOF"), Doc. 55, at ¶ 1).
Daniel Savage originally worked at the Commission from August 2003 to November 2006, first as a business representative and later as a safety compliance manager. Plaintiff was recommended for the job by then-Commissioner Mitchell Rubin. (Id. at ¶ 2).
In November 2006, the Plaintiff was elected in a special election as a member of the Philadelphia City Council, at which time he voluntarily left his employment at the Commission. (Id. at ¶ 3). Savage served on the Philadelphia City Council until January 2008, but then lost his seat in the next regular election. (Id. at ¶ 4).
Plaintiff learned that then-Eastern District manager, Carmen Marrone, was leaving and Plaintiff presumed that Robert Brady would be taking his position. Plaintiff then contacted Commission Chairman Mitchell Rubin to ask if Robert Brady's position would be available. Chairman Rubin informed the Plaintiff that Robert Brady's position was not available but that there might be another position for which Plaintiff was qualified. (Id. at ¶ 5; Pl.'s Resp. to Def.'s Statement of Material Facts ("Pl.'s Resp."), Doc. 61-2, at ¶ 5). Plaintiff denies that he contacted any other individual at the Commission to see if there was an open position. (Pl.'s Resp., at ¶ 5).
On October 22, 2008, Savage was offered the position of Regional Office Coordinator at the Eastern Regional Office ("ERO"), reporting to Robert Brady. In that position, Plaintiff oversaw purchasing for the ERO and managed the ERO's fleet of "pool cars" for employees that needed to travel for work. (DSOF, at ¶ 6).
While employed in that position, Savage signed and acknowledged receipt of the employee handbook, which he described as "the rules of being an employee of the Pennsylvania Turnpike Commission." (Id. at ¶ 7). The handbook included the following statement:
(Pennsylvania Turnpike Commission Employee Handbook, Doc. 54-8, Ex. 1).
In the 2011 election, Savage sought to win his seat back on the Philadelphia City Council. Plaintiff decided in January of 2011 that he wanted to take a leave of absence to pursue campaign activities full time. (DSOF, at ¶ 8). Savage first inquired with his direct supervisor, Brady, and learned that for any leaves of absence over ten days, he would need to seek approval from human resources. (Id. at ¶ 9).
On January 3, 2011, the Plaintiff called and then emailed Doreen McCall, the Commission's Chief Counsel. In pertinent part, Plaintiff's email to McCall stated:
(Doc. 54-8, Ex. 2).
At the time Savage wrote this email to Doreen McCall, the Commission's Code of Conduct (Policy Letter 3.10) did not prohibit employees from running for office. The Code of Conduct only prohibited Members or Executive-Level Employees (other than the Secretary of Transportation) from being "a Public official or Party Officer" in the State. (DSOF, at ¶ 11).
McCall responded to Savage's January 3, 2011 email, stating that "[b]ased on the facts as provided to me, the Commission's Code of Conduct would not prohibit you from running for political office." (Doc. 54-8, Ex. 2). McCall further stated that based on Plaintiff's job duties, he was unlikely to be considered as an "Executive-Level Employee" and that, because his position did not involve programs funded with federal money, the federal Hatch Act would not apply. (DSOF, at ¶ 12).
Savage thereafter requested, and was granted, a 45 day leave of absence. (Id. at ¶ 13) (see also, Doc. 54-8, Ex. 4).
Savage lost his election bid for Philadelphia City Council. He returned to work at the Commission in the same position he had held before. (Id. at ¶ 15).
In February, 2013, Mark Compton started as the Commission's new CEO. Compton had previously been employed as Deputy Secretary for Administration at the Pennsylvania Department of Transportation ("PennDOT"). (Id. at ¶ 16).
In March of 2013, Pennsylvania's Attorney General released a presentment accusing several former Commission employees of various forms of corruption. (Id. at ¶ 17). Savage admits that the presentment accused several executives and managers of illegal procurement practices, citing to Compton's deposition. (Pl.'s Resp., at ¶ 17). During Compton's deposition, he explained that "[t]he presentment was about procurement practices within the Commission. It was also about one or two of the employees' lost time, ghost employee type stuff." (Dep. of Compton, at 60:3-7). Compton further explained that "[i]t was political givings through different vendors and things like that as well." (Id. at 62:9-11). Plaintiff denies that the presentment "implicated the issue of Commission employees running for office or otherwise engaging in political activities", again citing to Compton's deposition. (Pl.'s Resp., at ¶ 17).
The presentment named, among others, the Commission's former CEO, Joe Brimmeier, and a former Commissioner, Mitchell Rubin. (DSOMF, at ¶ 18).
The Commission asserts that, in the wake of the presentment, it charged Mark Compton with reviewing all of the Commission's policies and implementing a series of reforms, both to prevent employees from engaging in similar wrongdoing in the future and to clean up the public's perception of the Commission. (DSOF, at ¶ 19). In response, Plaintiff admits "only that Mr. Compton was charged with a review of Commission policies that arose from the allegations in the presentment relating to procurement policies." (Pl.'s Resp., at ¶ 19). Savage denies that the directive dealt with policies relating to employees running for office.
On March 18, 2013, the Commission issued a press release entitled "PA Turnpike CEO Announces Additional Reforms to Operations." (Doc. 54-8, Ex. 5). In the release, CEO Compton detailed the steps the Commission planned on taking, including "conven[ing] a special advisory group to review and critique current Turnpike policies and procedures relating to contracting and other business practices to see where continued improvements can be made and to research best-practices at comparable agencies to learn from their experience and protocols." (Id.; see also, DSOF, at ¶ 20).
The Commission's Advisory Committee consisted of the Honorable Maureen Lally-Green, a retired Pennsylvania Superior Court judge, M. G. Patel, former Chief Engineer at PennDOT, and Professor John L. Gedid, Professor and Vice-Dean of Widener University School of Law. (DSOF, at ¶ 21). While Plaintiff acknowledges the appointment of an Advisory Committee, he responds that the Advisory Committee Report set forth only recommendations to "minimize or eliminate undesirable practices cited in the presentment and did not recommend that any change be made to the policy prohibiting employees from holding public office." (Pl.'s Resp., at ¶ 21).
The Commission CEO Compton requested that Stacia Ritter, Director of Government Affairs for the Commission at that time, conduct research about the different kinds of codes of conduct in effect at other Pennsylvania government agencies. (DSOF, at ¶ 23). According to Defendant, Ritter responded in April, 2013, by providing a detailed chart describing the policies in place under the rules of the House of Representatives and Senate, the Governor's Code of Conduct, State Executive Order 1980-18, and the Gaming Board's Code of Conduct. (Id. at ¶ 24). Plaintiff denies the Defendant's statements made in paragraph 24, asserting that the "detailed chart" cited by Defendant is unreadable. Although Plaintiff and Defendant agree that Stacia Ritter also produced a memorandum, the parties disagree as to whether the memorandum, and specifically the page designated PTC001825 (Doc. 54-9, Ex. 7), addresses any issue related to political activity. (DSOF, at ¶ 25; Pl.'s Resp., at ¶ 25).
In June 2013, in-house attorneys at the Commission met with outside counsel who were retained to advise the Commission about making changes to the Commission's Code of Conduct. (DSOF, at ¶ 26).
By the summer of 2013, the Commission was reviewing its policies to determine whether they needed to be updated and the Commission had convened the Advisory Committee to further vet the Commission's policies. (Id. at ¶ 27).
With respect to the addition of a policy that would prohibit employees from running for office while employed at the Commission, Compton testified that implementing this new policy was his idea, explaining:
(Dep. of Compton, at 71:20-72:3; DSOF, at ¶ 28). Compton also explained that, before he started his position at the Commission, "someone" at the Commission had run for "district magistrate or district justice" in western Pennsylvania. That individual was elected and thus preparing to leave the Commission, which prompted Compton to think about the Commission's policy in that regard. (Dep. of Compton, at 63:21-64:20; DSOF, at ¶ 29).
It is undisputed that on or around September 26, 2013, a draft of the new Code of Conduct was proposed and discussed in executive session with the Commissioners. (DSOF, at ¶ 30). However, Plaintiff asserts that "the September 27, 2013 draft of the Code of Conduct did not include any prohibition against Commission employees running for public office." (Pl.'s Resp., at ¶ 30).
A revised proposed Code of Conduct was presented at the October 11, 2013, Commission meeting. (DSOF, at ¶ 31). Plaintiff notes that this revised draft also did not contain any prohibition against Commission employees running for public office. (Pl.'s Resp., at ¶ 31).
On November 1, 2013, the Commission was presented with another revised proposal. The November 1, 2013, version of the proposed Code of Conduct included, for the first time, a resign-to-run provision. (See Doc. 54-10, Ex. 15). Plaintiff asserts that "this provision was added a week after Plaintiff's October 23, 2013 fundraiser and Senator [Vincent] Hughes' unsuccessful attempts to threaten the hosts of that fundraiser into withdrawing their support for Plaintiff's candidacy, and was added during the same time period in which [Commissioner Pasqual] Deon met with Senator Hughes and was called into a private meeting with Senator [Christine] Tartaglione." (Pl.'s Resp., at ¶ 32).
During the January 7, 2014, meeting of the Commissioners, the Commission unanimously passed the revised Code of Conduct. (DSOF, at ¶ 33). The minutes of the Commission's January 7th meeting address the approval of the revised Code of Conduct under "New Business", under the subheading "Payment of Invoice", as follows:
(Doc. 54-11, Ex. 17).
The Code of Conduct adopted on January 7, 2014, contains the following subsection 9.3 in Section IX ("Public Office and Party Affiliation"):
(Doc. 54-11, Ex. 16).
The Advisory Committee reviewed the revised Code of Conduct as part of its 18-month review process and "commended the Commissions' [sic] substantial reform efforts" in its final report. (Id. at ¶ 37).
On January 7, 2014, the Commission's Chief Operating Officer, Craig Shuey, sent representatives of the three unions representing Commission employees a copy of the new Policy Letter 3.10, indicating it would be effective as of January 22, 2014. (DSOF, at ¶ 36). On January 27, 2014, the new Code of Conduct was posted in the "Document Library" section of the Commission's Intranet and Extranet. (Id. at ¶ 38). Savage testified that although he knew there was a "Document Library" page on the Intranet, he did not recall if he looked at it in 2014. (Id. at ¶ 39).
With respect to the update to the Code of Conduct, Patricia Schlegel, the Commission's director of human resources, explained:
(Dep. of Schlegel, at 24:21-25:5).
The Commission asserts that the new Code of Conduct was further disseminated to employees beginning on January 31, 2014, when the Commission's attorneys, Al Peters and John Dwyer, began providing mandatory training sessions to employees with respect to the revisions. (DSOF, at ¶ 41). Savage, while admitting that "some employees received the email referred to in Paragraph 41 of Defendant's Statement of Material Facts and some attended the referenced training," denies that "all employees received that email or that Plaintiff was sent the email or were aware of its contents." (Pl.'s Resp., at ¶ 41). Further, Savage denies that he was invited to attend the referenced training. (Id.). Plaintiff similarly denies Defendant's statement of material facts relating to what occurred during the training session, again stating that while "it is admitted that some employees received the e-mail referred to in Paragraph 41 of Defendant's Statement of Material Facts and some attended the referenced training, it is denied that all employees received that email or that Plaintiff was sent the email or were aware of its contents." (Id. at ¶¶ 42, 43).
In response to the Commission's statement of fact that "Plaintiff was aware of the training session and had heard rumors about a new policy being passed, but he decided to not directly ask Brady or the legal department about the rumor of a new policy", Savage admits "only that Plaintiff heard rumors about a policy being passed because people at the Commission were not happy with Plaintiff running for State Senate, that Plaintiff was aware that training sessions were being held, and that Plaintiff did not ask Brady or the legal department about the rumor." (DSOF, at ¶ 46; Pl.'s Resp., at ¶ 46).
Savage was interviewed by a local newspaper reporter, Tom Waring, about Savage's intention to run for State Senate in the Second Senatorial District. The article appeared on February 12, 2014. (DSOF, at ¶ 48; Pl.'s Resp., at ¶ 48). Savage however denies that he gave the following quote to Waring attributed to him in the article: "Due to the code of conduct of my job, I cannot announce my candidacy or take any public endorsements." (Id.). Nonetheless, Plaintiff admits that paragraph 50 of Defendant's Statement of Material Facts accurately reflects Mr. Waring's deposition testimony that "although he does not specifically recall taking this interview, he took notes from his conversation and recorded it in the newspaper article within days of the conversation." (DSOF, at ¶ 50; Pl.'s Resp., at ¶ 50).
Plaintiff understood that the previous version of the Code of Conduct did not prohibit employees from running for office. (DSOF, at ¶ 49).
It is undisputed that Savage testified that he informed co-workers at the Commission of his impending run in June 2013. Plaintiff then held his first "kickoff" fundraiser in July 2013, however Plaintiff claims that he had not yet obtained signatures or filed his petition to become a candidate at that time because he viewed state law as specifying a time frame when he could do so. (DSOF, at ¶ 51; Pl.'s Resp., at ¶ 51). Commission CEO Compton and Commission COO Shuey became aware that Savage was considering a potential run in the summer of 2013. (DSOF, at ¶ 52).
On or about March 7, 2014, Savage approached his immediate supervisor, Robert Brady, to inform him that he intended to seek a 45-day leave of absence to permit him to devote more time to campaigning. (Id. at ¶ 53). Savage admits that Brady emailed his version of the conversation he had with Plaintiff to Patricia Schlegel but denies that the conversation contained any statement by Brady regarding the implications of the new Code of Conduct. (DSOF, at ¶ 54; Pl.'s Resp., at ¶ 54).
Plaintiff also admits that on March 10, 2014, he sent a letter to Human Resources formally requesting the leave of absence and that he referred to Doreen McCall's approval of a similar leave in 2011. (Pl.'s Resp., at ¶ 55). Savage filed his petitions that same day. (DSOF, at ¶ 56; Pl.'s Resp., at ¶ 56). Although Plaintiff admits that he filed his petitions to become a candidate on March 10, 2014, he denies that he was not a candidate for office before that date. (Pl.'s Resp., at ¶ 56).
Plaintiff further admits that on March 13, 2014, Schlegel addressed a letter to Savage stating:
(Id. at ¶ 58; Doc. 54-12, Ex. 28).
Savage has admitted that neither Schlegel nor Compton testified that he would be fired even if he withdrew from the Senate race. (Pl.'s Resp., at ¶ 60). However, Plaintiff further states that "no Turnpike official assured Plaintiff that, if he withdrew from the senate race, his employment would not be terminated." (Id.). Nonetheless, Plaintiff admits that he "did not directly seek that assurance." (Id. at ¶ 61).
On March 20, 2014, Plaintiff responded to the March 13, 2014 letter sent to him by Schlegel. That letter in part states:
(Doc. 54-12, Ex. 29).
On March 24, 2014, Schlegel sent Savage a letter terminating his employment for violating § 9.3 of Policy Letter 3.10. (Doc. 54-12, Ex. 30). The letter was preceded by the March 24, 2014, approval for termination given by Compton to Schlegel, and signed by Compton on March 26, 2014. (Doc. 54-12, Ex. 31). Plaintiff admits that Schlegel sent him a termination letter on March 24, 2014 and that Compton approved the termination of Plaintiff's employment on March 26, 2014. (Pl.'s Resp., at ¶ 64). Plaintiff further admits that at a meeting of the Commissioners on April 1, 2014, the Commissioners unanimously approved Savage's termination of employment. (DSOF, at ¶¶ 65, 66; Pl.'s Resp., at ¶¶ 65, 66).
Savage and the Commission present sharply divergent views with respect to the existence or absence of evidence of any political retribution by the Commission against Plaintiff. Thus, Plaintiff does not admit and specifically disputes the statements set forth in paragraphs 66, 67, 68, 69, 70 and 72 of the Defendant's Statement of Material Facts.
Plaintiff does admit that Senator Tartaglione requested that Commissioner Deon meet with her in a private meeting but denies that Deon and Tartaglione in their deposition testimony confirmed that they did not discuss Plaintiff's candidacy for Tartaglione's seat during that conversation. (DSOF, at ¶ 73; Pl.'s Resp., at ¶ 73). Plaintiff admits that Senator Tartaglione testified that she had supported Plaintiff in his 2011 campaign for City Council and that she "had no knowledge of the regulations or `inner workings of the Turnpike. And that's something that's not on my radar. . . .'" (Id. at ¶ 74). Senator Tartaglione also testified that she did not have a discussion with Deon concerning Savage and that she had no discussion with anyone on Deon's behalf, or representing or associated with Deon, concerning Savage; that she had no discussion with anyone from the Turnpike Commission concerning Savage; and that she never asked anyone at the Turnpike to take action with respect to Savage. (Id. at ¶ 75).
Plaintiff admits that "[d]uring discovery, Plaintiff has focused extensively on phone calls that Senator Hughes made to some of Plaintiff's supporters `telling them that he did not want them to raise money for Plaintiff's Senate campaign or to otherwise support Plaintiff's campaign.'" (Id. at ¶ 77).
Plaintiff further admits that "Senator Hughes testified that, although he knew who Plaintiff was, i.e., that Plaintiff was considering running against Senator Tartaglione, he had "no recollection of `knowing where [Plaintiff] was employed,' if anywhere." (Id. at ¶ 78).
Plaintiff also admits the accuracy of Defendant's description of Senator Hughes deposition testimony wherein Senator Hughes testified that he made telephone calls to several of Savage's campaign donors and explained that he supported Senator Tartaglione because she is "[a] good Senator, a good member of our caucus" and that he believed that "[w]hen the Democrats in the Senate are low in representation, are not in the majority, why would we want to have a Democratic primary fight when those resources could be used for the general election in other races where Democrats could pick up seats.'" (Id. at ¶ 79). In admitting the accuracy of Defendant's statement of Senator Hughes' testimony, Plaintiff adds "it is denied that a reasonable jury would necessarily ascribe his stated motives as credible in light of his long association with Senator Tartaglione and his support for her candidacy." (Pl.'s Resp., at ¶ 79).
Savage denies that Senator Hughes did not impliedly make threats by the nature and tone of his phone calls, thus controverting the statements of fact set forth by Defendant at paragraphs 80, 81 and 82 of its Statement of Material Facts. (DSOF, at ¶¶ 80-82; Pl.'s Resp., at ¶¶ 80-82).
The Commission admits paragraphs 1-7 and paragraphs 10-12 of Plaintiff's Counter-statement of Material Facts. (See Pl.'s Counter Statement of Material Facts ("PCSF"), Doc. 61-2; Def.'s Resp., Doc. 65-1). These statements are essentially repetitive of the Defendant's Statement of Material Facts in that they present historical information concerning Plaintiff Savage's employment with the Turnpike Commission, his election to a seat on the Philadelphia City Council, his resignation from employment with the Commission in November 2006 in order to so serve, his unsuccessful bid to regain his seat on the Philadelphia City Council, his return to employment in a non-executive position as the Regional Office Coordinator of the Commission's Eastern Region, his receipt of the then current Code of Conduct which had become effective in October of 2007 which did not prohibit non-executive level employees from running for elective office in Pennsylvania state government, his decision to again run for Philadelphia City Council in 2011, and the email he received from Doreen McCall, Chief Counsel for the Commission, on January 3, 2011, which stated that he would not be prohibited from running for political office and warned him that he was restricted from engaging in political activity during business hours as well as from using Commission resources and equipment for campaign purposes. Likewise, Plaintiff's counter-statement confirms that Savage requested a leave of absence so that he could devote more time to his campaign, that this leave was approved by COO Shuey and confirmed by Human Resources Director Schlegel, and finally, that Plaintiff's 2011 campaign was unsuccessful and he returned to his position with the Commission in May 2011. (Id. at ¶¶ 1-7, 10-12).
Paragraph 13 of Plaintiff's counter-statement of facts asserts the following:
(PCSF, at ¶ 13). The Commission responds to this statement with an objection, arguing that "the cited newspaper article is inadmissible hearsay." (Def.'s Resp., at ¶ 13).
Federal Rule of Civil Procedure 56(c)(2) expressly provides that a party may object that evidence offered to support or oppose summary judgment cannot be presented in an admissible form. That objection may be raised in a specific motion to strike, but may also be raised in a response or reply papers. 1 Moore's Federal Rules Pamphlet § 56.5 [2][a] (Matthew Bender) (2018).
Smith v. City of Allentown, 589 F.3d. 684, 693 (3d Cir. 2009).
Defendant cites to James v. Tri-Way Metalworkers, Inc., 189 F.Supp.3d. 422, 429 (M.D. Pa. 2016) in support of its objection. Defendant's reliance on James at this stage of the proceedings is unavailing. In James, this Court stated:
Id. at 432-433.
Although the Court declines to rule on the admissibility of the Northeast Times article as well as the statements contained in it, at trial, both the Plaintiff and Senator Vincent Hughes could provide testimony on the subject matter of the article that may be admissible. Defendant's objection, therefore, is overruled insofar as it has application to this summary judgment analysis.
In any event, paragraph 13 also contains the statement that "[i]n or about March 2013, Plaintiff began considering seeking the Democratic Party nomination for the position of State Senator for the Second Senatorial District, a seat that was and is held by Senator Tartaglione. . . ." Defendant did not admit or deny this statement and the Court thus deems it admitted.
The Commission admits that "[i]n or about June 2013, Plaintiff announced his intention to seek that Senate seat and began raising money for that campaign for the Democratic Party nomination through publicized funding events." (PCSF, at ¶ 14; Def.'s Resp., at ¶ 14).
It is undisputed that "[o]n July 15, 2013, Plaintiff announced his first fund-raising event to take place in North Wildwood New Jersey six days later on July 21, 2013." (Id. at ¶ 17).
On July 19, 2013, Savage asserts that "at a fund-raising event for City Councilman Bobby Henon, Plaintiff's immediate supervisor, Robert G. Brady, shared with Plaintiff an e-mail he had received from Chief Operating Officer Shuey expressing Shuey's extreme displeasure with the July 17, 2013 Philadelphia Daily News article . . . and Plaintiff's announced candidacy for the Democratic nomination for State Senate." (PCSF, at ¶ 19). The Philadelphia Daily News article entitled "Trouble for Tartaglione" contains statements attributed to Savage which are critical of Tartaglione and makes reference to his planning of a political fund-raiser and intentions to challenge Tartaglione for the State Senate seat. (See Doc. 61-18, Ex. 21). In response, the Commission objects on the basis that the asserted email from Shuey "does not exist." (Def.'s Resp., at ¶ 19). For the reasons previously set forth, supra, at pages 19-20, this objection is overruled solely for purposes of this summary judgment analysis. On the state of the record evidence, the Court cannot conclusively determine that Plaintiff's description of the contents of this email is barred by the best evidence rule or whether it is otherwise inadmissible as double hearsay. Federal Rule of Evidence 1004 permits the use of secondary evidence where the original has been lost or destroyed, unless the proponent lost or destroyed it in bad faith. Fed. R. Evid. 1004 (a). See, e.g., Byrd v. Wisconsin Dept. of Veterans Affairs, 2015 WL 1745881, *3 (W.D. Wisc. 2015) (because record suggested missing email had been lost or destroyed, Plaintiff's recollection of message was sufficient to move case past summary judgment).
On September 16, 2013, Chris Brennan, a Philadelphia Daily News Political Editor, sent an email entitled "Political activity" to Turnpike employee Carl DeFebo which stated:
(Doc. 61-19, Ex. 25). It appears that email was circulated to Mark Compton, Doreen McCall and Craig Shuey of the Commission, among others. (See id. at PTC01603).
Three weeks later, on or about October 7, 2013, Savage distributed invitations for a fund-raising event to be held at the Palm restaurant on October 23, 2013. (PCSF, at ¶ 22). Senator Vincent Hughes made three phone calls to the hosts of that fund-raiser, Mark Sheppard, Fred Santarelli, and Shannon McClure-Roberts. The Commission denies that the conversations were "threatening or inappropriate". (PCSF, at ¶ 23; Def.'s Resp., at ¶ 23).
In March of 2013, several former Commission employees, including a former Commissioner, the Commission's former CEO, as well as mid-level managers, were the subject of a grand jury presentment by the Pennsylvania Attorney General. (PCSF, at ¶ 25). The Commission admits that the presentment was issued in March of 2013 and further admits that the presentment included "among other things, allegations of corruption based on the influence of State elected officials." (Def.'s Resp., at ¶ 25). Defendant denies that the presentment was limited to procurement issues. (Id.).
Mark Compton attested that he was not aware that Savage had engaged in any such activity including taking gifts or money during his employment. (PCSF, at ¶ 26).
The parties dispute whether, in response to the presentment, the Commissioners directed Mark Compton, the newly hired Commission Chief Executive Officer to conduct a review of the Commission's Code of Conduct with respect to issues that led to the grand jury presentment or whether Compton was directed to review the Commission's policies "broadly". (PCSF, at ¶ 27; Def.'s Resp., at ¶ 27). Clearly, however, the parties agree that Compton was directed to undertake a review of the Commission's Code of Conduct.
On September 26, 2013, a revised Code of Conduct was prepared that did not include "the prohibition on employee's [sic] running for or holding statewide office." (See PCSF, at ¶ 28; Def.'s Resp., at ¶ 28). On October 11, 2013, another revised Code of Conduct was presented to the Commissioners that again made no change to the existing Code policy relating to the holding of public office. (Id. at ¶ 29)
During the months of October, November, and December of 2013, Savage openly continued his fund-raising efforts. (Id. at ¶ 29).
The Commission admits that the policy containing the prohibition against a Commission employee running for public office was not added to the Code of Conduct until the November 1, 2013 draft. (Def.'s Resp., at ¶ 30).
The Commission also admits that Commissioner Deon was re-nominated on October 11, 2013 and confirmed on December 10, 2013, but denies that constitutes the same time period in which the prohibition against Commission employees running for public office was added to the Code of Conduct. (Id. at ¶ 31).
Commissioner Deon met with Senator Vincent Hughes and other Senators during the re-nomination process. (Def.'s Resp., at ¶ 32). Before the confirmation vote on Commissioner Deon, Senator Tartaglione met with Commissioner Deon, along with Stacia Ritter. (Id. at ¶ 33). The Defendant maintains that it is "undisputed" that Senator Tartaglione and Commissioner Deon did not discuss the Plaintiff. (Id.). In support of this position, Defendant cites to Deon's deposition testimony wherein he responded in the negative when asked whether during his discussion with Tartaglione he "discuss[ed] Daniel Savage at all". (Dep. of Deon, at 44:13-16). However, Commissioner Deon also testified at his deposition as follows:
(Id. at 12:24-13:5) (emphasis added).
The Turnpike Commissioners on January 7, 2014, approved a revised Code of Conduct. This Code of Conduct at § 9.3 revised the prior rule, which prohibited Commission employees from holding public office, to prohibit Commission employees from running for office. The minutes of the January 7, 2014 meeting of the Commission Board did not include any mention of any specific provision in the Code of Conduct. (PCSF, at ¶¶ 34, 35).
The revised Code of Conduct was thereafter immediately posted in the "Documents" section of the Intranet. This revised Code of Conduct could be found in the Document Library, but not in the Policies section. (PCSF, at ¶ 36, 37; Def.'s Resp at ¶¶ 36, 37). Rather, if an employee looked in the Policies section of the Intranet, he or she would find the 2007 version of the Code of Conduct. (PCSF, at ¶ 37).
The Commission denies that three months after Savage was fired for violating an "unpublished Code of Conduct prohibition," that the revised Code of Conduct was for the first time "formally published" to employees and placed in the Policies section of the Commission Intranet in June of 2014. (See PCSF, at ¶ 40; Def.'s Resp., at ¶ 40). Instead, Defendant asserts that the revised Code of Conduct "was adopted in January 2014, and immediately posted in the Document Library section of the Intranet, sent to the unions, and training began for employees." (Def.'s Resp., at ¶ 40). Thus Defendant denies Plaintiff's assertion that the revised Code of Conduct was formally published for the first time in June of 2014 by its placement in the Policies section of the Commission Intranet. (Id.).
Plaintiff and Defendant also disagree as to Mark Compton's reasons for proposing changes to the Code of Conduct with respect to employees being required to resign in order to run for political office. However, it is undisputed that Compton testified as follows:
(Dep. of Compton, at 71:20-72:3). Plaintiff also notes that Compton admitted that he was not aware of any State legislators putting any pressure on the Commission to hire people. (PCSF, at ¶ 41) (citing Dep. of Compton, at 74:15-19 (
The Commission acknowledges that in response to Plaintiff's requests for documents, it presented a privilege log with 294 entries of documents claimed to be protected by attorney-client, work product, or executive privilege. (Def.'s Resp., at ¶ 41).
The Commission also denies Plaintiff's statement of material fact that when Plaintiff's counsel attempted to ask Compton, Shuey, and Deon about when the restriction on public office was added, or why it was added, Defendant's counsel refused to let the witnesses answer, and claimed that all discussions took place in the Commissioners' Executive Session or with counsel in the securing of legal advice and were therefore covered by the attorney-client or executive privilege. (See PCSF, at ¶ 43; Def.'s Resp., at ¶ 43).
On March 10, 2014, the Plaintiff requested a leave of absence of 45 days through May 23, 2014. (PCSF, at ¶ 49). In response to Savage's request, on March 13, 2014, Patricia Schlegel sent a letter via certified and regular United States mail to Plaintiff advising him that the Code of Conduct had been changed and stating that "[o]n January 7, 2014, the Commission approved revisions to Policy Letter 3.10 (Code of Conduct), which, among other things, prohibit employees from being a candidate for nomination or election to any State or Federal Office unless he or she resigns from Commission employment" and providing Savage with "ten (10) days of the date of this letter" to resign his candidacy or he would be terminated. (Doc. 54-12, Ex. 28; see also, PCSF, at ¶ 50).
Savage responded to Schlegel's letter of March 13, 2014, asserting that the unpublished Policy was not properly implemented and therefore, unenforceable, and that the Policy constituted an unconstitutional restraint on his rights of free speech and association. Plaintiff also complained that he had not been made aware of the Policy and suggested that the actions being taken against him were "instigated by political forces outside the Commission." (PCSF, at ¶ 54; see also, Doc. 54-12, Ex. 29).
In a letter dated March 24, 2014, Schlegel informed Savage that his employment with the Commission would be terminated effective the following day based on the new Code of Conduct provision requiring that employees who wish to run for office must resign their employment. (Doc. 54-12, at 30; see also, PCSF, at ¶ 55; Def.'s Resp., at ¶ 55). CEO Compton approved the termination of Plaintiff's employment. (PCSF, at ¶ 57; Def.'s Resp., at ¶ 57).
Additionally, Savage asserts that after he received the March 13, 2014, letter from Schlegel, Commissioner Deon stated in the presence of Congressman Robert Brady, the father of Savage's supervisor, while they were at the Philadelphia Union League, that Deon was going to destroy Plaintiff. (PCSF, at ¶ 51). Defendant objects to this statement as triple-hearsay, responding that Plaintiff's testimony is that "Congressman Brady told Plaintiff's father about Deon's alleged statement; Plaintiff's father then told Plaintiff about what Congressman Brady said that Commissioner Deon had said." (Def.'s Resp., at ¶ 51).
The admissibility of the alleged statement by Deon would require Congressman Brady to present it at trial as having been made to him by Deon, and, were he to do so, the testimony may be admissible as a non-hearsay statement under Fed. R. Evid. 801(d)(2). On the other hand, if it were presented in the manner described by Defendant, above, it would likely be inadmissible as multiple hearsay. The Court again, however, declines to rule on the ultimate admissibility at trial of such testimony, particularly given the unsettled nature of who precisely would present such testimony. Suffice it to say, for a summary judgment analysis, the objection is premature and overruled.
Defendant asserts that no Commission employee since Savage has sought to run for state or federal office. As a result, the parties agree that the new Code of Conduct provision prohibiting employees from running for public office has not been enforced against anyone except Plaintiff. (PCSF, at ¶ 56; Def.'s Resp., at ¶ 56).
Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). "As to materiality, . . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record . . . or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, "[t]he court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993). Likewise, courts must construe questions of credibility in favor of the non-moving party. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990) ("We are keenly aware that credibility determinations are not the function of the judge; instead the non-movant's evidence must be credited at this stage.") (citing Anderson, 477 U.S. at 249, 255).
Nonetheless, "facts must be viewed in the light most favorable to the nonmoving party only if there is a `genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). If a party has carried its burden under the summary judgment rule,
Id. (internal quotations, citations, and alterations omitted). Further:
Galli v. New Jersey Meadowlands Comm'n, 490 F.3d 265, 270 (3d Cir. 2007).
The Commission seeks summary judgment on two fundamental grounds: (1) that its adoption on January 7, 2014, of a revision to its Code of Conduct which prohibited, for the first time, Commission employees from running for public office, has been shown by the undisputed facts of record to be justified by "reasonable necessity" which as a matter of law, operates to defeat Plaintiff's free speech claim generally and was reasonably necessary to prohibit Plaintiff's running for office specifically; and (2) that the undisputed record evidence establishes that Plaintiff has not shown a genuine dispute of material fact with respect to the issue of whether any constitutionally protected conduct engaged in by Savage was a substantial or motivating factor in the Commission's decision to terminate him.
In support of the Commission's first contention, that it has shown "reasonable necessity" for the revision to its Code of Conduct prohibiting a Commission employee from running for State or Federal office, the Commission assets that it was "faced with a situation in which several former employees, including a former Commissioner and CEO, were indicted on corruption charges. . . . Shortly before the presentment was issued, the Commission had hired a new CEO, Mark Compton, who was directed to review all the Commission's policies and present recommendations to reform them." (Def.'s Br. in Supp. of Mot. for Summ. J., Doc. 54-15, at 13). The Commission then asserts that Compton directed Stacia Ritter, then the Director of Government Affairs, to research the policies in place in other Commonwealth agencies, which included prohibitions on running for partisan office. (Id.).
In addition, the Commission points to the deposition testimony of CEO Compton where, in explaining his motivation for the adoption of the revision in question to the Court of Conduct, noted that he had become aware of one Commission employee who had run for elective office before Compton became employed with the Commission, and Compton accordingly testified:
(Id. at 14 (citing DSOF, at ¶ 28)).
The Commission argues that its passage of the revision to its Code of Conduct to prohibit employees from becoming a candidate for State or Federal office serves the same purposes that caused the United States Supreme Court to uphold "equivalent restrictions" in United States Civil Service Commission v. National Association of Letter Carriers AFL-CIO, 413 U.S. 548 (1973). The Commission identified those considerations as "(1) reducing the hazard that employees will execute the law in a partial manner; (2) reducing the appearance to the public that employees are `practicing political justice'; (3) preventing the building of a political machine; and (4) protecting employees from pressure and tacit invitation to perform political chores to curry favor with superiors." (Doc. 54-15, at 14).
The Commission cites the substantial body of case law wherein restrictions on running for or holding public office have been upheld. (Id. at 14-15). Thus, the Commission argues that because of its "interest in ensuring that its policies prohibited actual corruption and combatting the perception of corruption by the public in the wake of the 2013 presentment," the Commission has met its burden to show reasonable necessity for its revision of Section 9.3 in its Code of Conduct prohibiting Commission employees from being a candidate for nomination or election to any State or Federal office unless such employee has first resigned from his or her employment with the Commission. (Id. at 16).
The Commission advances as its second ground for the entry of summary judgment in its favor, its contention that the undisputed evidence of record shows that the passage of the amendment to the Code of Conduct prohibiting Commission employees from running for State or Federal office without first having resigned was unrelated to Savage's candidacy for the State Senate. The Commission further asserts that Savage has not shown a genuine dispute of material fact for trial as to the existence of any causal relationship between his candidacy and the Commission's adoption of the "resign-to-run" rule added to Section 9.3 of the Code of Conduct. The Commission argues that it is undisputed that it learned of Plaintiff's campaign activities in the summer of 2013 and that Plaintiff's termination in March of 2014, nearly eight months later, does not support a claim that there exists sufficient "temporal proximity" between the Commission's knowledge of Plaintiff's protected activity and his termination to allow Plaintiff's claim to proceed to trial. (Doc. 54-15, at 18-19).
Similarly, the Commission moves for summary judgment on the basis that Savage "cannot show a pattern of antagonism toward him." The Commission argues that the single incident in which a report was made to the Commission's COO, Craig Shuey, where someone reported that Plaintiff was using his Commission vehicle for political purposes, is insufficient to show proof of animus and that, in any event, the Commission's chief counsel found no merit to the allegation against Savage. (Doc. 54-15, at 19-20).
Finally, the Commission argues that "Plaintiff cannot point to record evidence from which `the trier of fact' should infer causation.'" (Id. at 20) (quoting Gulick v. City of Pittston, 995 F.Supp.2d 322, 336 (M.D. Pa. 2014)). Thus, the Commission asserts:
(Id. at 20-21).
The Commission states that Commission CEO Compton does not know Senator Tartaglione and Commission COO Shuey "never spoke to Compton, any of the Commissioners, or to Senators Tartaglione or Hughes about Plaintiff." (Id. at 21). Similarly, the Commission notes that Stacia Ritter, the Commission's then Director of Government Affairs, "only learned about Plaintiff's running for office after his employment was terminated." (Id.).
In similar fashion, the Commission argues that Savage has failed to show a genuine dispute for trial arising out of a meeting between Senator Tartaglione and Commissioner Deon in December of 2013 during Commissioner Deon's re-confirmation process. (Doc. 54-15, at 21). The Commission asserts that "Deon was re-nominated as a Commissioner in October 2013, and, as part of the reconfirmation process, met with numerous Senators, including Senator Tartaglione." (Id. at 22). The Commission thus claims that it "is undisputed that, when Senator Tartaglione and Commissioner Deon met as part of the reconfirmation process (in the presence of Ritter, the Commission's then Director of Government Affairs), they did not talk about Plaintiff or the election at all." (Id. at 22).
The Commission further argues that the meeting between Senator Tartaglione and Commissioner Deon occurred between October and December of 2013 which was well after the Commission had begun its review of its policies and months after Ritter had identified to Compton the "Commission's policy lacuna regarding employees running and holding office." (Id. at 22).
As a result, the Commission contends that Plaintiff's claim is entirely speculative, as it is unsupported by evidence that the Commission retaliated against him by enacting the revision to the policy within its Code of Conduct which prohibited employees from becoming a candidate for State or Federal office without first having resigned employment with the Commission.
In response, Savage, after citing the requirements for stating a claim for retaliation under 42 U.S.C. § 1983 based upon political activity as stated in Goodman v. Pennsylvania Turnpike Commission, 293 F.3d 655, 663-64 (3d Cir. 2002), argues:
(Pl.'s Br. in Opp. to Def.'s Mot. for Summ. J., Doc. 61-1, at 11).
Plaintiff then disputes the assertion by the Commission that there is not the required temporal proximity between the protected activity of his candidacy and the allegedly retaliatory action manifested in his discharge from employment or a pattern of antagonism coupled with timing to establish a causal link, citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d. 259, 267 (3d Cir. 2007). (Id. at 11-12).
Plaintiff argues that the Commission has failed to show the absence of a triable dispute of fact as to whether the revision to the Policy in the Commission's Code of Conduct, which prohibits employees from becoming a candidate for State or Federal office unless the employee first resigns, was "reasonably necessary". Plaintiff further argues that there are genuine disputes of material fact as to whether the Commission enacted the prohibition upon a Commission employee being a candidate for State or Federal office without resigning was enacted for a constitutionally impermissible purpose "to chill the Plaintiff's First Amendment rights and to retaliate against him for having exercised them." (Id. at 12) (citing Ct.'s Mem. Op., Doc. 22, at 20-21, 23-26)).
With respect to the "reasonable necessity" requirement, Plaintiff argues that the Commission's attempt to obtain summary judgment based upon the testimony of Mark Compton as to why the resign-to-rule was enacted, including the March 2013 grand jury presentment against former Commission members and employees, and his biggest fear that "the Senate or the House would ask us to house someone in order for them to run for office" should be rejected by this Court. (Id. at 14). Plaintiff writes that "it is respectfully suggested that those unsupported fears and unnecessary actions are subject to credibility determinations that must be left to a jury to determine whether they, standing alone, have allowed Defendant to meet its burden to prove `reasonable necessity' for the constraint it placed on Plaintiff's free speech and association." (Id. at 14-15).
Plaintiff further complains that Defendant has "employed the bar of attorney-client and executive privilege to disallow any exploration by Plaintiff of its true motives for enacting the resign-to-run prohibition on free speech and association, and therefore, must be estopped from raising the guise of good government as a defense." (Id. at 15). Plaintiff argues that he has been prevented from exploring the "veracity" of the Commission's witnesses so that he has been deprived of inquiring as to the "true motive" of the Commission's enacting of the change to the Policy in the Code of Conduct. Plaintiff states that he was precluded from inquiring at the depositions of Commission employees Compton, Shuey, and Ritter as to conversations relating to the enactment of the revision to the policy in question. Plaintiff argues that the Commission "is improperly employing privilege as both a `sword and shield'" and that this is "an abuse that courts have universally discouraged." (Id. at 16-17) (citations omitted). Accordingly, Plaintiff requests that this court rule that the Defendant "cannot argue or present any evidence that the prohibition of running for office while employed is `reasonably necessary'." (Id. at 17).
With respect to the Commission's argument that the addition of the prohibition against a Turnpike Commission employee being a candidate for State or Federal office unless that employee first resigns employment was justified by the indictment of several former Commission employees, including the former Commission CEO on corruption charges, Plaintiff argues that those indictments cannot serve as a basis for the prohibition on employees being candidates for public office. Plaintiff asserts that the indictments had nothing to do with Commission employees running for office, but rather, that the misconduct underlying the indictments involved illegal procurement practices "including Commission employees taking kickbacks or improper gifts." (Id. at 18). Plaintiff emphasizes that the independent advisory committee appointed to make recommendations to "minimize or eliminate undesirable practices" did not recommend or otherwise reference the addition of a prohibition against Commission employees running for office. (Id.). Plaintiff thus asserts that there is no connection between the change in the Code of Conduct at issue in this case and the earlier grand jury indictment of former Turnpike Commission employees.
Savage further argues that the temporal proximity necessary to allow an inference of discrimination and unlawful retaliation is demonstrated by the content and sequence of the drafts of the Code of Conduct that were produced in discovery. Plaintiff asserts that the September 26, 2013, and October 11, 2013, drafts of the Code of Conduct did not include a prohibition on Commission employees becoming candidates for State or Federal office. Instead, "[t]hat prohibition was only added in the November 1, 2013 draft that was issued a week after Plaintiff's October 23, 2013 fundraiser and Senator Hughes' unsuccessful attempts to threaten the hosts of that fundraiser into withdrawing their support for Plaintiff's candidacy, and during the same time period in which Commissioner Deon met with Senator Hughes and was called into a private meeting with Senator Tartaglione." (Doc. 61-1, at 19).
Savage thus argues that the lack of evidence of any connection between the 2013 grand jury indictments and the change in the Code of Conduct prohibiting Commission employees from becoming candidates for State or Federal office, together with the temporal proximity of the addition of a prohibition against Commission employees becoming candidates for public office to the Code of Conduct on November 1, 2013, the phone calls made by Senator Hughes before Plaintiff's October 23, 2013 fundraiser, and Commissioner Deon's meetings with Senators Hughes and Tartaglione seeking reappointment to his post, all "could lead a reasonable jury to conclude that Defendant made that change in the Code of Conduct to prevent Plaintiff from challenging Senator Tartaglione for her Senate seat or to punish him for doing so. (Id.). Plaintiff therefore argues that there are genuine disputes of fact as to what motivated the Commission's decision to change the Code of Conduct to prohibit employees from becoming candidates for public office so that Defendant's motion for summary judgment must be denied.
Plaintiff additionally argues that the evidence shows a close temporal proximity and a pattern of antagonism with respect to the Plaintiff's political activities. He asserts that within days of announcing his first fundraiser for the State Senate race on July 18, 2013, he received an email from the Commission's attorney with respect to allegations that he may have been using his Commission vehicle for political purposes even though, Savage asserts, he did not have a Commission vehicle at the time and his use of any Commission vehicle would be logged. (Id. at 20).
Further, Savage argues that the pattern of antagonism is shown by the events of July 19, 2013, where Savage's "superior" Robert Brady, while both were attending a fundraiser for a Philadelphia City Councilman, showed him an email that he had received from Commission COO Shuey, expressing Shuey's extreme displeasure with an article in the Philadelphia Daily News regarding Savage's candidacy for State Senate against Senator Tartaglione. (Id.). This pattern of antagonism, Plaintiff asserts, continued with the telephone calls made by Senator Hughes to three of the hosts of Plaintiff's fundraiser at the Palm Restaurant on October 23, 2013. Those individuals, Sheppard, Santarelli, and McClure, testified by deposition and Plaintiff characterizes each of them as having considered the statements made to them by Senator Hughes as implicitly threatening or hostile. (Id. at 20-21).
Finally, Savage argues that his termination was "constitutionally offensive" because the policy which contained the prohibition against a Commission employee running for public office was not formally published to the Commission's employees before it was used to terminate Savage's employment. (Id. at 22).
In reply, the Commission first takes issue with the "sword and shield" argument raised by Plaintiff as to the communications which the Commission has asserted are covered by the attorney-client privilege. (Def.'s Reply Br., Doc. 65, at 3). The Commission argues that it properly asserted the attorney-client privilege over communications which occurred during Executive Sessions of Commission meetings where the Commission's counsel provided legal advice about the revised Code of Conduct, including the revisions to the policy regarding employee political activity. The Commission states that Plaintiff never argued that these communications were not privileged or filed a motion to compel their production. (Id. at 3). The Commission thus argues that Plaintiff's objections made in his brief in opposition to Defendant's motion for summary judgment are untimely and should have been the subject of a motion to compel or a motion for sanctions. (Id. at 4). In addition, the Commission argues that even if Plaintiff's argument were timely, it is legally and factually incorrect. The Commission flatly states that it "has never asserted `advice of counsel' as a defense, and never relied on privileged communications (appropriately shielded from disclosure) as the reason behind the Policy." (Id. at 4). Instead, the Commission reasserts that its defense in this case is based on "its decision to review its policies, and its adoption of the Policy (and other policies), following the presentment." (Id.). It accordingly finds that the cases cited by Plaintiff are inapposite. (Id.).
Moreover, the Commission emphasizes that Plaintiff was allowed to question Commission CEO Mark Compton at length concerning the adoption of the prohibition on Commission employees running for public office and, in particular, his reasoning for the necessity of such a prohibition. (Doc. 65, at 5-6). With regard to the "reasonable necessity" for the prohibition upon Commission employees becoming candidates for State or Federal office, the Commission urges this Court to reject Plaintiff's argument that a genuine dispute of fact exists as to the reason for the Commission's adoption of the resign-to-run rule. It further urges this Court to reject Plaintiff's contention that the Commission limited CEO Compton's review to the kinds of procurement issues which were cited in the grand jury presentment. (Id. at 9). Instead, the Commission argues that "[c]ertainly, procurement issues were part of the reform effort — as shown in several of the other reforms made to the Code of Conduct . . . but Compton's charge was broader, as Commissioner Deon's FMLA example demonstrates." (Id.).
The Commission asserts that it is "undisputed that Compton began the policy review process in April 2013, before anyone knew about Plaintiff's intention to run for office, when he asked Stacia Ritter, then the Commission's Director of Government Affairs, to conduct research on the different kinds of codes of conduct in effect at other Pennsylvania agencies." (Id. at 9). The Commission argues that Ritter in April of 2013 produced a chart and memorandum explaining the different codes of conduct at various agencies and that Ritter, in her memorandum, listed as among the items for discussion:
(Id. at 10). Thus, the Commission argues that the Ritter memorandum pre-dated any announcement by Savage of his intention to run for office and "identifies employee political activity as an area to be considered for reform." (Id.). The Commission then once more makes reference to the testimony of CEO Compton as justification for the addition of the prohibition on Commission employees running for public office, specifically his stated fear that elected officials in Pennsylvania would "park" employees at the Commission between campaigns for public office. (Id.).
The Commission also takes issue with Plaintiff's claim of a temporal proximity between his alleged protected activity and his termination, stating that while Plaintiff indicated his intention to run for Senator Tartaglione's seat as early as July 2013, his employment was not terminated until March 2014, some eight months later. (Doc. 65, at 12).
Nor, in the view of the Commission, has Savage shown facts raising a dispute for trial as to whether there existed a pattern of antagonism with respect to Plaintiff in a time period relevant to his campaign and candidacy for State Senate. With respect to the inquiry as to Plaintiff's use of a Commission vehicle, the Commission responds that it was not an adverse employment action and that instead "he was simply reminded to comply with the generally applicable policy and there were no negative consequences to him." (Id. at 13).
The Commission also again asserts that Savage's testimony regarding Robert Brady, Jr. having shown him an email where Commission COO Shuey allegedly expressed "extreme displeasure" with an article in the Philadelphia Daily News which discussed Savage's anticipated run for office is inadmissible under the best evidence rule and presents inadmissible hearsay which cannot be considered by this Court on summary judgment. (Id. at 14).
In addition, the Commission argues that, with respect to the November 1, 2013, draft of the Code of Conduct in which, for the first time, the prohibition against Commission employees becoming candidates for office was included, "Plaintiff offers no evidence that anyone involved in adding the Policy had any knowledge of his October fundraiser, and it is undisputed that Senator Hughes never spoke to anyone at the Commission and did not even know where Plaintiff worked." (Id. at 15).
The Commission summarizes much of its argument in support of its request for summary judgment on the issue of political discrimination and retaliation as follows:
(Id. at 15-16).
The Commission dismisses Plaintiff's argument that Senator Hughes engaged in the making of threatening phone calls to Savage's supporters and hosts of his fundraisers, arguing "Senator Hughes simply called Santarelli and others to encourage them to support Senator Tartaglione over Plaintiff, just as Plaintiff's supporters, like Santarelli, called people and encouraged them to support Plaintiff." (Id. at 16). The Commission concludes that "Plaintiff has not shown that there was anything other than ordinary campaign activities by Senator Tartaglione or her supporters, nor is there any evidence linking these campaign activities with the Commission." (Id.).
The Code of Conduct adopted on January 7, 2014, contains the following provision in § 9.3 of Section IX "Public Office and Party Affiliation":
(Doc. 54-11, Ex. 16; see also, DSOF, at ¶ 35).
On review of the summary judgment record, the Commission has failed to show the absence of a genuine dispute of material fact as to whether its enactment of the resign-to-run rule is justified by reasonable necessity.
As this Court stated in its Memorandum Opinion denying the Commission's motion to dismiss, the "threshold issue before the Court in this case [is] whether Savage's First Amendment interest in being a candidate for public office is outweighed by those of the Turnpike Commission." (Doc. 22, at 18). In so ruling, this Court relied upon the decision of the Fifth Circuit in Phillips v. City of Dallas, wherein the Court, quoting its prior decision in Morial v. Judiciary Commission of State of Louisiana, 565 F.2d. 295 (5th Cir. 1977), stated that "[r]estrictions on the partisan political activity of public employees and officers are constitutionally permissible if justified by a reasonable necessity to burden those activities to achieve a compelling public objective," 781 F.3d. 772, 779 (5th Cir. 2015). (Doc. 22, at 18).
The Commission advances three bases for its adoption of the resign-to-run rule.
First, the Commission argues that as a result of the indictment in March of 2013 by the Commonwealth of Pennsylvania of several former Commission employees, including the Commission's former CEO and a former Commissioner, revisions to its Code of Conduct were necessary. Accordingly, Mark Compton, who became the Commission's CEO in February of 2013, was charged with the review of all of the Commission's policies and to propose what the Commission describes as "meaningful reforms" to prevent the type of conduct which led to the grand jury indictments from happening again and to restore the Commission's reputation. Thus, the Commission argues that the addition of the prohibition upon Commission employees from becoming candidates for public office without first resigning employment with the Commission was the direct result of the Commission's efforts to reform itself to eliminate the kind of conduct that led to the March, 2013, indictments.
While neither party put of record the grand jury presentment, the parties agree that the presentment accused several executives and managers employed by the Commission of illegal procurement practices. On this point, Mark Compton's deposition testimony is instructive:
(Dep. of Compton, at 60:1-13). Compton also testified that the grand jury presentment addressed "political givings through different vendors and things like that as well." (Id. at 62:9-11).
Further, when asked whether there was any suggestion that Savage, at any time during his employment with the Commission, had engaged in any activity where he had taken money or taken gifts from anyone as an employee of the Commission, Compton answered "not that I'm aware." (Id. at 62:22-63:4).
While the grand jury presentment may well have been the basis for the Commission's overhaul of its procurement practices, vendor relationships and rules regarding whether Commission employees may receive anything of value from a Commission vendor, by Mr. Compton's own testimony, it did not arise out of or have any connection with Commission employees becoming candidates for elected office. Indeed, Plaintiff argues the complete absence of any nexus between the grand jury indictments of March of 2013 and the Commission's ultimate adoption in January of 2014 of the resign-to-run rule found in Section 9.3 of the Code of Conduct. Whether the Commission was motivated to adopt the resign-to-run rule because of the grand jury indictments of former Commission employees including a Commission CEO and Commissioner, presents a material dispute of fact for trial.
Second, the Commission states that it appointed an independent Advisory Committee which reviewed all of the Commission's policies over a period of 18 months and issued a report recommending further actions to "minimize or eliminate undesirable practices cited in the presentment." (Doc. 54-15, at 4 n.3). Appendix A of the Advisory Committee report (Doc. 61-23, Ex. 61), entitled "Roles and Responsibilities of the Advisory Committee", sets forth the Committee's purpose as follows:
(Id. at A1).
Further, the responsibilities of the Advisory Committee are set forth as follows:
(Id.).
Appendix B of the Advisory Committee's report contains a chart which is divided into three columns, entitled "Grand Jury Presentment", "PTC Actions", and "Status", respectively. (Id. at A2).
Under the column Grand Jury Presentment are listed in bullet point form what the Advisory Committee apparently deemed to be the subject matters covered by the grand jury presentment. They are listed as follows:
(Id.). None of these statements of the subject matters viewed by the Advisory Committee as having been the types of conduct addressed by the grand jury presentment include any reference to Commission employees becoming candidates for public office.
Moreover, within the column "PTC actions", none of the actions cited by the Advisory Committee as having been taken by the Commission relate to the adoption of a prohibition on Commission employees becoming candidates for office unless such employee has tendered his/her resignation. While there is a statement that the Commission "[s]trengthened Code of Conduct and expanded applicability of conflict of interest provision" as it relates to the listed grand jury presentment's subject of "[p]olitical fundraising by Commission officials", at best, this ambiguous statement, to the extent that it is advanced by the Commission as justification for its resign-to-run policy, presents an issue for trial.
Further, the Advisory Committee's recommendations are general in nature and do not specifically address the subject matter of whether Commission employees should be prohibited from becoming candidates for State or Federal office unless having first resigned their employment. (See Doc. 61-23, P-61, at 1). In fact, the recommendations begin with this paragraph:
(Id.) (emphasis added). The Executive Summary & Recommendations next states:
(Id.).
Again, the Advisory Commission's recommendations as well as its description of the subject matters to be addressed which arose from the grand jury presentment do not undeniably relate to or address the issue of Commission employees becoming candidates for office or the need, or value, of a prohibition upon Commission employees doing so. Therefore, whether the Advisory Committee report establishes or tends to establish the requisite reasonable necessity for the resign-to-run rule enacted by the Commission on January 7, 2014, likewise presents a factual determination for a jury.
Third, the Commission presents the testimony of its CEO, Mark Compton, to establish the reasonable necessity for the prohibition upon Commission employees becoming candidates for office unless they have resigned. Compton testified that the policy prohibiting employees from becoming candidates for office was his idea, stating:
(Dep. of Compton, at 71:20-72:3). Compton explained that, before he had started his employment with the Commission, in February of 2013 "someone" at the Commission had run for a state judgeship position in Western Pennsylvania and was preparing to leave the Commission after he had been elected, which prompted him to think about the Commission's policy in that regard. (Id. at 63:21-64:20). Savage has responded by noting that the September 27, 2013, draft of the Code of Conduct did not include any prohibition against Commission employees running for office. Nor did the revised Code of Conduct presented to the Commissioners on October 11, 2013, contain any change to the existing Code policy permitting Commission employees to become candidates for public office. In addition, Plaintiff notes the testimony of Compton that he was not aware of any State legislators placing pressure on the Commission to hire people:
(Dep. of Compton, at 74:15-19).
Thus there exists a genuine dispute for trial as to whether the enactment of a prohibition upon Commission employees becoming candidates for State or Federal office was reasonably necessary as a result of the March 2013 grand jury indictments of former Commission employees, the recommendations of the independent Advisory Committee formed in the wake of the grand jury indictments, or because of the "fear" of CEO Compton that State elected officials would pressure the Commission to "house" an individual in order to enable them to run for office. There is also a genuine dispute of fact for trial as to whether any of the justifications offered by the Commission present the true reasons for the enactment of the prohibition on Commission employees becoming candidates for State or Federal office unless they first resign. This is so because Compton's testimony places his credibility at issue and it is axiomatic that a court may not assess credibility in determining whether to grant or deny summary judgment. See Guidotti v. Legal Helpers Debt Resolution, LLC., 716 F.3d 764, 772 (3d Cir. 2013) ("In evaluating the [summary judgment] motion, `the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.'") (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). See also, Doeblers' Penn. Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 (3d Cir. 2006) (stating that credibility determinations "are inappropriate to the legal conclusions necessary to a ruling on summary judgment. . . . A District Court should not weigh the evidence and determine the truth itself, but should instead determine whether there is a genuine issue for trial."); J.F. Feeser, Inc., 909 F.2d at 1531 ("We are keenly aware that credibility determinations are not the function of the judge; instead the non-movant's evidence must be credited at this stage.").
Significantly, that the September 26 and October 11, 2013 drafts of the Code of Conduct did not include a prohibition against Commission employees from becoming candidates for State or Federal office while the November 1, 2013 draft, for the first time, did include such a prohibition, raises a further dispute of fact as to the reasons why such a prohibition was added on November 1, 2013, and whether it was indeed reasonably necessary.
For these reasons, whether the prohibition upon Commission employees from running for State or Federal elective office as enacted by the Commission on January 7, 2014, was reasonably necessary is a material dispute for trial.
In so ruling, this Court believes it necessary to address Savage's argument that the Commission has improperly used the attorney-client privilege and executive privilege as both "a sword and shield" so that, in effect, Plaintiff has been prevented from learning the "true motive" for the Commission's enactment of the resign-to-run rule while at the same time the Commission has come forward with carefully limited explanations justifying its actions. As previously discussed, the Commission disputes Plaintiff's characterization of its assertion of attorney-client privilege and states that it has not asserted "advice of counsel" as a defense in this case and has never relied on privileged communications as the reason behind the prohibition upon Commission employees becoming candidates for office without resignation. The Commission contends that the cases Plaintiff relies upon are inapposite as they relate to the assertion of the advice of counsel defense while the party asserting that defense also withholds discovery pertaining to that advice. (Doc. 65, at 4).
On review of the cases cited by Plaintiff, the Court concludes that Defendant's assertion of the attorney-client privilege to preclude Plaintiff's counsel from questioning Commission employees with respect to matters discussed with Commission counsel or during executive sessions of the Board of Commissioners at which counsel was present does not warrant the sanction sought by Plaintiff, i.e., a ruling that the Commission "cannot argue or present any evidence that the prohibition of running for office while employed is `reasonably necessary'" (Doc. 61-1, at 17). Thus far, the Commission has not attempted to protect certain communications of Commission employees under a claim of attorney-client privilege while at the same time selectively asserting defenses based on privileged communications as was the case in Yarnell v. Philadelphia School District, 57 F.Supp.3d 410, 431 n.15 (E.D. Pa. 2014). Nor has the Commission engaged in conduct which may be fairly said to have used the attorney-client privilege as both a sword and shield as that term is described in Murray v. Gemplus International, S.A., 217 F.R.D. 362 (E.D. Pa. 2003):
217 F.R.D. at 367. Here, the Court cannot say that the Commission has selectively disclosed privileged communications in order help its case and thus the Court rejects the Plaintiff's claim of waiver of the privilege protection.
However, the Court's discussion in Impala Platinum Holdings Limited v. A-1 Specialized Services and Supplies, Inc., 2017 WL 960941 (E.D. Pa. 2017) is instructive should the Commission, in connection with the trial of this matter, expressly or by reasonable implication, assert the defense of reliance on the advice of counsel in support for the enactment of the January 7, 2014, prohibition on any Commission employee becoming a candidate for State or Federal office, or in support of any other defense, specifically including a defense that Plaintiff's termination was for legitimate, non-discriminatory reasons and free of any political animus toward him. This Court in the appropriate circumstance will fashion a remedy to prevent surprise and unfairness to the Plaintiff which may include prohibiting any Commission employee or other witness from testifying on matters thus far claimed by the Commission to be privileged. Impala Platinum Holdings, 2017 WL 960941 at *2. Similarly, should the Commission selectively disclose communications that thus far have been shielded by the Commission's counsel by the assertion of the attorney-client privilege, the Commission may be deemed to have waived the protection otherwise afforded to it by the privilege for all such communications.
Simply stated, should the Commission place at issue its reliance upon the advice of counsel as part of its defense in this case or attempt to selectively present testimony or other evidence that discloses privileged communications as to which Savage was barred from inquiry during discovery, the Court may consider such conduct as a waiver of the attorney-client privilege generally.
In assessing whether the Commission is entitled to summary judgment with respect to this claim, this Court begins with the Third Circuit's observation in Goodman. There, the Court summarized what it termed the "political patronage trilogy":
Goodman, 293 F.3d at 663. The Court in Goodman then addressed what it termed the "third leg" of the political patronage trilogy, which was "added" by the Supreme Court in Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). Id. The Court in Goodman explained:
Id.
In Robertson v. Fiore, the Third Circuit distilled from the decisions in Elrod, Brantee, and Rutan, a test for determining claims of discrimination based on political association:
62 F.3d. 596, 599 (3d Cir. 1995) (citations omitted).
In addition to stating the test by which political discrimination must be determined, the Court also made clear that the protection of the expression or exercise of political beliefs enjoys no less protection when the expression or exercise results in an employee supporting a different faction within the same party:
Id. at 600.
Accordingly, the Court concluded:
Id.
The test for determining the existence of political discrimination set forth in Robertson has been consistently employed by the courts in this circuit. See e.g., Goodman, 293 F.3d at 663-664; Galli, 490 F.3d at 271; Gulick, 995 F.Supp.2d at 332.
Here, there is no dispute that Plaintiff Savage was employed at a public agency that does not require political affiliation and that he was engaged in constitutionally protected conduct by seeking election to the Pennsylvania State Senate and engaging in campaigning in support of his candidacy. Thus the question before the Court is whether there is a triable dispute of fact as to whether his conduct was a substantial or motivating factor in the Commission's decision to enact a rule prohibiting a Commission employee like Plaintiff from becoming a candidate for State or Federal office without first resigning his employment, and terminating him pursuant to that rule. "`Implicit in this prong is a requirement that the plaintiff produce sufficient evidence to show that the defendant knew of the plaintiff's political persuasion,' which requires proof of both knowledge and causation." Galli, 490 F.3d at 275 (quoting Goodman, 293 F.3d at 664).
The knowledge of the Commission, through its representatives, of Savage's political activity, specifically his commencement of campaign activities in support of his candidacy for State Senate, is undisputed. It is undisputed that Plaintiff testified that he informed co-workers at the Commission of his impending run in June of 2013 and that he held his first "kickoff" fundraiser in July of 2013. (See DSOF, at ¶ 51). It is likewise undisputed that Commission CEO Compton and Commission COO Shuey became aware that Savage was considering a potential run for State Senate in the summer of 2013. (Id. at ¶ 52).
Commission CEO Compton testified that he was aware of Plaintiff's interest in running for office in the period between July 2013 and the end of 2013, testifying:
(Dep. of Compton at 31:16-32:9).
Similarly, COO Shuey testified:
(Dep. of Shuey, at 21:22-22:2). Shuey further testified:
(Id. at 22:19-22). In addition, Shuey testified he had conversations with Commission counsel McCall regarding Savage's use of a vehicle while campaigning. (Id. at 43:18-22).
While Commissioner Deon testified that he did not "recall" ever discussing with "anybody" Savage's run for office, his testimony may not form the basis for a grant of summary judgment in that, once again, this Court is precluded from assessing the credibility of witnesses as explained earlier herein. See also, Goodman, 293 F.3d at 665 ("As with grants of summary judgment, the reviewing Court `must draw all reasonable inferences in favor of the non-moving party, and it may not make credibility determinations or weigh the evidence.'").
With the admissions of Commission CEO Compton and COO Shuey of their knowledge of Plaintiff's political activities in connection with his run for the State Senate, the knowledge of the Commission has been sufficiently established. Analytically then, the Court must determine whether there are genuine disputes of fact for trial as to causation. That is, Savage must produce sufficient evidence from which a reasonable trier of fact could conclude that his campaign for the Democratic nomination for State Senator was a "substantial or motivating factor" in the adverse employment action. See Galli, 490 F.3d. at 276. Savage has asserted that he was discharged in retaliation for his First Amendment exercise of free association and speech. In the context of such claims:
Lauren W., 480 F.3d at 267 (internal citations and quotation marks omitted).
Here, the Court finds Plaintiff has shown the requisite "unusually suggestive temporal proximity" between the protected activity of his campaigning for the Democratic nomination for State Senator and the allegedly retaliatory action of the Commission, wherein it formulated, for the first time, on November 1, 2013, a draft prohibition against a Commission employee becoming a candidate for State or Federal office. It is noteworthy that the Commission, in its revisions to the Code of Conduct as part of its overall review of the Code of Conduct as a result of the grand jury indictments of former Commission employees, prepared drafts of the Code of Conduct on or around September 26, 2013, and again on October 11, 2013, in which no change to the existing Code was made to add a prohibition against Commission employees becoming candidates for State or Federal office without first resigning. It is undisputed that the policy containing the prohibition against a Commission employee running for public office was not added to the Code of Conduct until the November 1, 2013, draft. Meanwhile, during the months of October and November, Savage openly continued his fundraising efforts. More specifically, Plaintiff has raised a genuine dispute of material fact by asserting that the "prohibition was only added in the November 1, 2013 draft that was issued a week after Plaintiff's October 23, 2013 fundraiser and Senator Hughes' unsuccessful attempts to threaten the hosts of that fundraiser into withdrawing their support for Plaintiff's candidacy, and during the same time period in which Commissioner Deon met with Senator Hughes and was called into a private meeting with Senator Tartaglione" (Doc. 61-1, at 19).
Further, this temporal proximity is augmented by exhibited antagonism toward Savage where the record evidence shows that after announcing his first fundraiser for the State Senator race on July 18, 2013, Plaintiff received an email from the Commission's attorney with respect to allegations that Plaintiff may have been using his Commission vehicle for political purposes. (Id. at 20). There is also the disputed exchange as to whether Plaintiff, while attending a fundraiser for a Philadelphia City Councilman on July 19, 2013, was shown an email by Brady, which Brady allegedly received from COO Shuey purportedly expressing Shuey's extreme displeasure with an article in the Philadelphia Daily News with respect to Savage's candidacy for State Senate against Senator Tartaglione.
In addition, genuine disputes of fact arise with respect to Commissioner Deon and Senator Tartaglione regarding Deon's confirmation for another term as Turnpike Commissioner. There, Commissioner Deon testified that when he met with Senator Tartaglione concerning his confirmation as Turnpike Commissioner, he did not discuss Savage. (Dep. of Deon, at 44:13-16). However, Commissioner Deon also testified at his deposition as follows:
(Id. at 12:24-13:5).
Commissioner Deon's seemingly irreconcilable testimony as to his meeting with Senator Tartaglione creates a genuine dispute of fact for trial, wholly apart from any question of his credibility, an assessment of which is beyond this Court's function at the summary judgment stage. It is undisputed that Commissioner Deon's meeting with Senator Tartaglione was arranged by Stacia Ritter of the Commission and that Deon came to ask Senator Tartaglione for her vote for confirmation. (Dep. of Tartaglione, at 21:4-17). Senator Tartaglione testified her meeting with Commissioner Deon was in November of 2013 for approximately 20 minutes. (Id. at 21:18-22:2). Senator Tartaglione acknowledged that she was aware that Senator Hughes and Senator Costa were engaged in making phone calls to persons who were supporting Plaintiff Savage although she did not know what the nature of those phone calls was. (Id. at 26:3-10). She further denied ever having a discussion with Commissioner Deon concerning Daniel Savage. (Id. at 33:9-12).
While Senator Vincent Hughes testified that he did not recall making phone calls to individuals who were supporting Savage, specifically Frederick Santarelli, Shannon McClure Roberts, and Mark Sheppard (Dep. of Hughes, at 30:1-31:16), each of these individuals testified that Senator Hughes contacted him or her by telephone.
Santarelli testified that he received a telephone message from Senator Hughes on October 17, 2013, in the form of a voice mail which was recorded and saved by Santarelli. (Dep. of Santarelli, at 14:15-16:14). Santarelli testified that he called Senator Hughes back and that Senator Hughes told him:
(Id. at 16:16-21). Santarelli further testified that he did not know Senator Hughes and that Senator Hughes indicated that he knew Santarelli was to host a fundraiser for Savage. (Id. at 16:23-17:5). Santarelli testified that he viewed the phone call:
(Id. at 19:8-16).
Shannon McClure-Roberts likewise testified that Senator Hughes called her personally. She testified:
(Dep. of McClure-Roberts, at 13:16-14:8). McClure-Roberts testified that she found the conversation to be "condescending, demeaning and offensive." (Id. at 14:24). She further testified that the suggestion that she should change what she was doing "in terms of fundraising or political activity", was to her, implicitly threatening. (Id. at 16:1-7).
Mark Sheppard was asked by Savage to co-host a fundraiser to raise money for his campaign. (Dep. of Sheppard, at 6:10-19). The fundraiser Sheppard was to co-host was in October of 2013. (Id.). Sheppard testified that he received a telephone call from Senator Hughes before that fundraiser in which Senator Hughes "expressed his disappointment clearly to me that I should not be involved in this and asked me not be involved in this." (Id. at 10:7-12). Sheppard further testified that he recalled Senator Hughes:
(Id. at 10:13-20). When asked whether Senator Hughes made a specific threat as to his continued support of Savage, Sheppard responded:
(Id. at 10:21-11:16). Sheppard did not recall Senator Hughes mentioning anything about the Pennsylvania Turnpike Commission. (Id. at 11:17-18).
Whether Senator Hughes made these telephone calls to Santarelli, McClure-Roberts, or Sheppard, and, if so, whether the substance of the conversations was as related by each of them is clearly in dispute. What is also in dispute is whether these calls have any relationship to the Commission's preparation of a draft on November 1, 2013, which, unlike the prior drafts of September 26, and October 11, 2013, contained a prohibition against Commission employees becoming candidates for office without resignation. Given the temporal proximity of these phone calls to the November 1, 2013, draft of the prohibition on Commission employees becoming candidates for elective office which ultimately was enacted by the Commission on January 7, 2014, as well as the antagonism that Savage argues is shown by such phone calls toward his candidacy, a reasonable jury could conclude that there was sufficient temporal proximity between the November 1, 2013, draft of the prohibition on Commission employees running for office and Plaintiff's October 23, 2013, fundraiser at The Palms Restaurant in Philadelphia and such telephone calls as Senator Hughes may have made as recounted by Santarelli, McClure-Roberts, and Sheppard that Daniel Savage was subjected to unlawful discrimination and was retaliated against in violation of the First Amendment for becoming a candidate for State Senate and engaging in campaign activities in connection with that campaign.
For the foregoing reasons, the Commission's Motion for Summary Judgment (Doc. 54) will be denied. A separate Order will issue.
