Markel v. McIndoe
| Decision Date | 11 July 1995 |
| Docket Number | No. 94-3152,94-3152 |
| Citation | 59 F.3d 463 |
| Parties | William S. MARKEL, Appellant, v. Harry R. McINDOE; Municipality of Penn Hills, a municipal corporation, Appellees. |
| Court | U.S. Court of Appeals — Third Circuit |
Michael Louik (argued), Berger, Kapetan, Meyers, Rosen, Louik & Raizman, Pittsburgh, PA, for appellant.
J. Alan Johnson, Swensen, Peter & Johnson, Pittsburgh, PA, for appellee Harry R. McIndoe.
Wayne V. DeLuca (argued), Damian & DeLuca, Pittsburgh, PA, for appellee Municipality of Penn Hills.
Before BECKER and COWEN, Circuit Judges and POLLAK, District Judge. *
This is an action brought pursuant to 42 U.S.C. Sec. 1983 in which appellant alleged that he was denied opportunities for promotion in violation of his First and Fourteenth Amendment rights. Appellees countered that the decisions to promote persons other than appellant were made on the merits. Subsequently appellees presented the additional contention that, in any event, they were, as a matter of law, required by 51 Pa.Cons.Stat.Ann. Sec. 7104(b)--a section of Pennsylvania's Veterans' Preference Act of August 1, 1975--to promote eligible veterans ahead of appellant, a non-veteran. On the latter ground appellees moved for summary judgment. The district court granted summary judgment. We reverse and remand.
The appellant in this action is William Markel, a police officer employed by the Municipality of Penn Hills [hereinafter "Penn Hills"]. The appellees are Harry McIndoe and Penn Hills. Mr. McIndoe has been municipal manager of Penn Hills during all times relevant to this litigation. As municipal manager, he has authority over the promotions of Penn Hills police officers.
On November 4, 1986, McIndoe was arrested on a charge of operating a motor vehicle while under the influence of alcohol. Markel participated in the arrest and testified against McIndoe at a preliminary hearing held on January 27, 1987. Markel again testified against McIndoe at a related appellate hearing held on March 30, 1988. Following these proceedings, McIndoe entered and successfully completed a rehabilitation program.
Some years later--in November 1991--Markel participated in a civil service examination, the purpose of which was to determine eligible candidates for promotion to the rank of sergeant in the Penn Hills Police Department. According to the Sergeant Candidates Eligibility List posted on December 9, 1991, Markel ranked second out of twenty-one candidates for promotion. On December 19, 1991, the person ranked third on the elibility list was promoted to sergeant. On January 17, 1992, the person ranked first was promoted. On February 2, 1992, the person originally ranked fourth was promoted.
Markel subsequently instituted this Sec. 1983 lawsuit, contending that he had been passed over for promotion to sergeant in retaliation for his activities relating to McIndoe's arrest and court hearings. Such retaliation, he claimed, constituted a violation of his constitutional rights under the First and Fourteenth Amendments. 1 Denying Markel's allegations, appellees contended that the decisions to promote police officers other than Markel had all been made on the merits.
At some point after the completion of discovery, appellees learned of this court's decision in Carter v. City of Philadelphia, 989 F.2d 117 (3d Cir.1993)--and, evidently, Carter led appellees to think about the Veterans' Preference Act and, in particular, the provision codified at 51 Pa.Cons.Stat.Ann. Sec. 7104(b). Section 7104(b) reads as follows:
Whenever any soldier [i.e. veteran] possesses the requisite qualifications, and his name appears on any eligible or promotional list, certified or furnished as the result of any such civil service examination, the appointing or promoting power in making an appointment or promotion to a public position shall give preference to such soldier, notwithstanding, that his name does not stand highest on the eligible or promotional list.
51 Pa.Cons.Stat.Ann. Sec. 7104(b) (1976). 2 After reviewing the lists of those police officers certified as eligible for promotion to sergeant, appellees moved for summary judgment. Their argument--which the magistrate judge found persuasive--was that, although Sec. 7104(b) concededly played no actual role in appellees' decisions relating to Markel, Sec. 7104(b) would in any event have prohibited appellees from promoting Markel ahead of any eligible veterans. According to the findings of the magistrate judge, fourteen of the twenty-one persons on the December 9, 1991 eligibility list were veterans, including each of the persons promoted to sergeant. In a brief order, the district judge adopted the report and recommendation of the magistrate judge.
On appeal, Markel argues that it was error to grant summary judgment. Appellant's first and second arguments concern the interpretation and validity of Sec. 7104(b). Specifically, appellant contends that: (1) Sec. 7104(b), properly read, does not mandate the promotion of a veteran on a civil service eligibility list ahead of more qualified non-veterans; and (2) that the promotional preference contemplated by Sec. 7104(b), if it does so mandate, contravenes the Pennsylvania Constitution and also the federal Constitution. Alternatively, appellant contends that since Sec. 7104(b) was not in fact an ingredient of appellees' decisions to promote other officers in preference to appellant, Sec. 7104(b) is irrelevant to the question whether appellees trespassed on appellant's First and Fourteenth Amendment rights; in appellant's view, Sec. 7104(b) either has no proper role in this case or should, at most, be considered only with respect to remedy. 3 We will first turn to appellant's argument regarding the interpretation of Sec. 7104(b).
Section 7104(b)--which applies to both appointments and promotions--provides that the appointing or promoting authority "shall give preference" to any veteran whose name is on the eligible or promotional list "notwithstanding, that his name does not stand highest on the eligible or promotional list." Appellant contends that the magistrate judge--whose opinion was adopted by the district court--erred in construing the statute, pursuant to Pennsylvania case law, "as requiring the promoting power to appoint a veteran over a non-veteran." According to appellant's interpretation of Sec. 7104(b), a non-veteran may be promoted over a veteran where "the non-veteran possesses superior individual qualifications for the promotion being sought." Appellant's Supp.Mem. of September 14, 1994, at 3. But appellant's interpretation of Sec. 7104(b) is without support in the Pennsylvania cases.
The courts which have previously examined Sec. 7104(b) have construed the "shall give preference" language as a mandate that any veteran on a civil service eligibility list is to be preferred over any non-veteran on the list. Thus, in Rasmussen v. Borough of Aspinwall, 103 Pa.Cmwlth. 109, 519 A.2d 1074 (1987), appeal granted, 516 Pa. 637, 533 A.2d 94 (1987) 4--a case on which the magistrate judge relied--the Commonwealth Court reversed the Court of Common Pleas' determination that Sec. 7104(b) did not require the appointment of the only veteran on the certified list. As stated by the Commonwealth Court, "[w]hile [Sec. 7104(c) ] permits Borough Council to select a veteran who is not among the three highest scoring applicants by using the word 'may,' Section 7104(b), by use of the imperative 'shall,' commands Council to appoint the certified veteran if he or she is one of three on the certified list." 519 A.2d at 1076. See also G. Gordon Brickhouse v. Spring Ford Area School Dist., 155 Pa.Cmwlth. 402, 625 A.2d 711, 715 (1993) (), rev'd on other grounds, 656 A.2d 483 (Pa.1995); Feinerman v. Jones, 356 F.Supp. 252, 257 (M.D.Pa.1973) () ("It is true that under Section 4 of the Act, if one of the three names is a veteran, he must be given an absolute preference...."). 5 To be sure, each of the cases just cited arose in the context of appointments, not promotions; but the phrase "shall give preference" comprehends both appointments and promotions, and the Pennsylvania case law offers no ground for reading the same words as mandatory in one setting and non-mandatory in another. Indeed, in a recent promotion case arising under Sec. 7104(b), the Allegheny Court of Common Pleas looked to the appointments cases as controlling authority compelling an absolute preference for any veterans, as against any non-veterans, on the promotional list. City of Pittsburgh v. Fraternal Order of Police, Fort Pitt Lodge No. 1, No. GD94-017598 at 14 (Ct.C.P.Allegheny County Nov. 9, 1994) ("Pennsylvania appellate court case law holds that Sec. 7104(b) mandates that the qualified veteran be awarded the position, even if he or she stands lowest on the eligibility list.").
We see no reason to depart from this interpretation. We conclude that Sec. 7104(b)--considered apart from constitutional objections--requires the promotion of any veteran on the eligibility list over any non-veteran.
Having determined that Sec. 7104(b) contemplates a mandatory promotional preference for veterans over nonveterans, we now turn to the question whether, as so construed, Sec. 7104(b) offends the Pennsylvania Constitution.
In order to put this state constitutional claim in doctrinal context, we begin our analysis by referring to decisions of the Pennsylvania Supreme Court construing statutory schemes which preceded the current Veterans'...
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