Assaf v. Fields, 98-7153

• Decision Date: 19 May 1999
• Docket Number: No. 98-7153,98-7153
• Citation: 178 F.3d 170
• Parties: 15 IER Cases 122 Eugene F. ASSAF, Appellant, v. George C. FIELDS; Gary E. Crowell.
• Court: U.S. Court of Appeals — Third Circuit

178 F.3d 170

15 IER Cases 122

Eugene F. ASSAF, Appellant, v. George C. FIELDS; Gary E. Crowell.

No. 98-7153.

United States Court of Appeals Third Circuit.

Argued Dec. 14, 1998.

Decided May 19, 1999.

Lawrence S. Markowitz (Argued), Markowitz & Krevsky, York, PA, for Appellant.

D. Michael Fisher, Attorney General, R. Douglas Sherman, Calvin R. Koons (Argued), Senior Deputy Attorneys General, John G. Knorr, III, Chief Deputy Attorney General, Appellate Section, Office of Attorney General of Pennsylvania, Harrisburg, PA, for Appellees.

Before: SLOVITER and COWEN, Circuit Judges, and OBERDORFER, ^* District Judge.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Plaintiff Eugene F. Assaf brought this civil rights action against the Pennsylvania state officials responsible for his dismissal from public employment. Assaf's complaint, invoking 42 U.S.C. § 1983, charges that appellees George C. Fields and Gary E. Crowell terminated his employment for political reasons, thereby violating the First Amendment protections for belief and association. The District Court, in ruling on the defendants' motion for summary judgment, concluded that Assaf's job was not one for which party affiliation is an appropriate requirement but nonetheless entered summary judgment for defendants on the basis of qualified immunity. Assaf v. Fields, 999 F.Supp. 622, 630-33 (M.D.Pa.1998). Assaf filed a timely appeal. Our review of the grant of summary judgment is plenary. See Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir.1998).

II.

The record, reviewed in a light favorable to Assaf, reveals the following: Assaf was hired in October 1988 as Director of the Bureau of Vehicle Management for the Commonwealth of Pennsylvania. Assaf, a registered Democrat, was hired by then-Secretary of General Services David Jannetta, who was also a registered Democrat. At the time Assaf was hired, Robert Casey, also a Democrat, was Governor of Pennsylvania.

The Bureau of Vehicle Management is an agency within the Department of General Services. Assaf reported to the Deputy Secretary for Procurement, appellee George Fields. Fields in turn reported to the Director of the Department of General Services, appellee Gary Crowell. Crowell's position was a cabinet-level one.

Assaf was advised in writing of his employment as a Fleet Maintenance Manager (also referred to as Director of the Bureau of Vehicle Management) and that his position was under the Senior Management Service, a category of Commonwealth positions "in the unclassified service which have broad policy participation and management responsibility." As such, he was exempt from unemployment compensation coverage but covered by the Management Benefits Program. He was further advised that in that position he "serve[s] at the pleasure of the agency head."

Assaf's job description listed as "Major Duties" of the position: "Directs the Bureau of Vehicle Management to meet the transportation needs of all requesting Commonwealth Departments, Agencies, and Commissions while remaining within the financial guidelines of self-generated income." The job description enumerated ten specific duties:

1. Participates with the Deputy Secretary in planning, developing and implementing appropriate standards, procedures and policies for obtaining and maintaining the Commonwealth Automotive Fleet.

2. Stays abreast of the automobile market and recommends when to purchase vehicles based on current sales volume, amount of income received,fixed and semi-fixed expenses, variable expense, and fixed overhead expense.

3. Determines the best type of vehicles to purchase....

4. Directs the operation of the Commonwealth Garage concerned with the service and repair of the automotive fleet. Negotiates and administers regular maintenance contracts with service Agencies and with dealerships for repair and preventative maintenance.

5. Directs the maintenance of all records and reports concerning the Commonwealth Fleet....

6. Oversees the disposition of the Commonwealth owned vehicles. These vehicles are sold through an oral auction which is open to the public. Makes sure that all activities are carried out according to approved policy. Interacts with the general public whenever concerns arise.

7. Directs the payments of repair invoices from various vendors....

8. Oversees the repair of vehicles at the Commonwealth Garage....

9. Directs the temporary vehicle fleet making it available for use by the requesting Commonwealth Agencies to meet their temporary transportation needs....

10. Works closely with the various Bureau Chiefs and supervisory personnel to maintain an efficient, logical and financially sound operation.

Assaf supervised the three divisions that made up the Bureau: the Administrative Division, the Vehicle Operations Division, and the Vehicle Maintenance Division. He directly supervised the three employees who headed these divisions. The Bureau as a whole employed a total of thirty-three to forty-six employees over whom Assaf exercised indirect supervision. His starting salary was $37,000 and at the time he was terminated his salary had risen to $52,000.

From the written description, it might have appeared that Assaf's title as Director signified a public official with significant authority. Admittedly, the Director ran the day-to-day operation of the Bureau, which entailed overseeing a fleet of approximately 8,000 vehicles. However, Assaf testified to the substantial limits of his authority. For example, the Director did not have the ultimate authority to hire employees within the Bureau. See Assaf at 50. ¹ There is evidence that he also did not have the authority to fire Bureau employees. See James W. Martin at 31; Gregory Green at 8-9. Rather, such authority rested ultimately with the Deputy Secretary for Procurement, a position held by Fields. See Green at 9. At most, Assaf could formally reprimand employees who were under his indirect supervision, which he did on a number of occasions. See Assaf at 57-60.

Assaf testified that he had no authority over the Bureau's budget or purchasing decisions and did not negotiate maintenance contracts with outside vendors. See Assaf at 39, 41, 44. Although Assaf assigned vehicles to the various agencies, Fields had to approve each such decision and Fields retained control over executive vehicle assignments. See Fields at 65-66. Maintenance of the Commonwealth vehicles was performed at the Commonwealth Garage, and although Assaf could approve outside repair shops if they accepted the standard contract from the Commonwealth, the rates for payment were set according to a predetermined formula. See Assaf at 43-44; Fields at 61.

Similarly, although Assaf was listed as having responsibility for auctions, in fact the vehicle auctions were conducted pursuant to a formula used to select the vehicles, and vehicles could not be auctioned unless Fields approved the lists. The target prices for the vehicles at auction were also set by a formula, see Fields at 62-63, and the formula preceded Assaf's tenure, see Assaf at 60.

On January 21, 1995, Thomas Ridge, a Republican, was sworn in as Governor of the Commonwealth of Pennsylvania. Shortly after Governor Ridge's inauguration, Jannetta resigned as Secretary of General Services and Governor Ridge appointed Gary Crowell, a Republican, in his stead. Governor Ridge reappointed Fields as Deputy Secretary for Procurement.

On March 29, 1995, Fields notified Assaf by letter that his services were no longer needed. Fields at 44. The termination decision was made by Secretary Crowell. Crowell at 22-23. According to Assaf, Fields informed him that his termination was for political reasons. See Assaf at 76-77. Fields denies discussing with Assaf whether politics were involved. See Fields at 44.

Assaf applied for unemployment compensation pursuant to the Pennsylvania Unemployment Compensation Law. His application was ultimately denied by the Pennsylvania Unemployment Board of Review, which ruled that Assaf was not entitled to benefits because his was "a major nontenured policymaking" position and therefore specifically exempted from the unemployment compensation scheme.

On March 5, 1997, Assaf filed this lawsuit in the District Court for the Middle District of Pennsylvania, charging that Fields and Crowell violated the First Amendment by terminating his employment for political reasons. Fields and Crowell moved for summary judgment. Without conceding that Assaf had in fact been fired for political reasons, they urged that Assaf's job was, in any event, not one for which the First Amendment provides protection. In the alternative, they argued that even if Assaf's position was constitutionally protected they were nonetheless entitled to qualified immunity because the unlawfulness of the dismissal would not have been apparent to reasonable officials under clearly established law.

In ruling on the defendants' motion, the District Court first rejected the defendants' argument that Assaf had received the position through political patronage and could not now complain that he lost the position for a similar reason. See Assaf, 999 F.Supp. at 628 (citing Branti v. Finkel, 445 U.S. 507, 512 n. 6, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) (rejecting argument that "because the [employees] knew the system was a patronage system when they were hired, they did not have a reasonable expectation of being rejected when control of the office shifted to [another party].")). The court next rejected defendants' argument that political affiliation was a qualification for the job. The court noted that "the overarching factor is whether the worker has 'meaningful input into decision making concerning the nature and scope of a major [government] program.' " Id. at 630 (citing Peters v. Delaware River Port Auth., 16 F.3d 1346, 1353 (3d Cir.1994)). The District Court concluded that "overseeing the cars owned by the Commonwealth and used by its agencies ... is...