Ness v. Marshall
| Decision Date | 28 September 1981 |
| Docket Number | Nos. 81-1057,s. 81-1057 |
| Citation | 660 F.2d 517 |
| Parties | Harry M. NESS, Appellant, v. Elizabeth N. MARSHALL, Individually and in her capacity as Mayor of the City of York, Pennsylvania, and James S. A. Bentzel, William L. Smallwood, Elizabeth L. Brooks, Robert G. Leichliter, James R. Vogelsong, Individually and in their capacity as members of the City Council of York, Pennsylvania. Edward C. ROBERTS, Appellant, v. Elizabeth N. MARSHALL, Individually and in her capacity as Mayor of the City of York, Pennsylvania, and James S. A. Bentzel, William L. Smallwood, Elizabeth L. Brooks, Robert G. Leichliter and James R. Vogelsong, Individually and in their capacity as members of the City Council of York, Pennsylvania. John W. THOMPSON, Jr., Appellant, v. Elizabeth N. MARSHALL, Individually and in her capacity as Mayor of the City of York, Pa. and James S. A. Bentzel, William L. Smallwood, Elizabeth L. Brooks, Robert G. Leichliter, James R. Vogelsong, Individually and in their capacity as members of the City Council of York, Pennsylvania. to 81-1059. |
| Court | U.S. Court of Appeals — Third Circuit |
Lewis H. Markowitz, argued, Marc G. Tarlow, Markowitz & Seidensticker, P. C., York, Pa., for appellant.
Rees Griffiths, argued, Liverant, Senft & Cohen, York, Pa., for appellees.
Before GIBBONS and HUNTER, Circuit Judges, and GERRY, * District Judge.
Petitioners in these three consolidated appeals alleged that they were dismissed from their positions as solicitors for the City of York, Pennsylvania for reasons of their political affiliation and in violation of their First Amendment rights. The district court judge granted defendants summary judgment on two grounds: (1) that the evidence indicated no genuine issue of material fact concerning plaintiffs' claim that they were dismissed because of their political affiliation, and (2) that even if such issue of material fact could be shown, defendants were as a matter of law entitled to dismiss plaintiffs for those reasons. Because we affirm the district court on the latter ground, we need not definitively dispose of the former.
John W. Thompson, Jr., Edward C. Roberts, and Harry M. Ness served, respectively, as city solicitor for the City of York since January, 1974, as assistant city solicitor for the same period, and as a second assistant city solicitor since January, 1977, until dismissed in January of 1978. They were all appointed to their positions by the former mayor, John D. Kraut, a Republican, and were all dismissed by the newly elected mayor, Elizabeth Marshall, a Democrat. Thompson and Roberts were both members of the Republican Party and Ness, although a registered Democrat, had supported his brother, an unsuccessful Republican candidate for the city council, in the 1977 election.
In complaints filed March 9, 1978, plaintiffs alleged that Mayor Marshall dismissed them solely because of their political affiliations in violation of their rights under the First Amendment and the Civil Rights Act of 1871, 42 U.S.C. § 1983 and requested both compensatory damages and reinstatement to their former positions. Members of the city council were joined as defendants only for the purpose of receiving their necessary consent to the requested reappointment by the mayor.
Construing defendants' motion to dismiss as a motion for summary judgment, the district court granted the parties time to file documentation and affidavits in support of, and in opposition to, that motion. After reviewing the affidavits and depositions submitted by both sides as well as the relevant local and federal law, the court granted defendants' motion. The court decided both that there was no genuine issue of fact from which one might conclude that defendants had been dismissed solely due to their political affiliation, and that, in any event, recent constitutional law indicated that the mayor had the right to dismiss them for just this reason. This appeal followed.
Although we affirm the district court's determination on grounds derived from the Elrod and Branti cases, see infra pp. 519-520, some discussion of the court's alternative ground for granting summary judgment is merited.
Reviewing the affidavits and depositions on file, the court found "that Mayor Marshall lacked confidence in the assistants she had inherited from the Kraut administration, that she had a firsthand opportunity to observe them during her tenure as President of the City Council, that she desired to reorganize the City Solicitor's Office to make it, in her mind, more effective and that these were the motivations behind her decision not to continue them in their respective positions." Memorandum, Nov. 14, 1980, Appellants' Appendix, p. 87a. These contentions of the mayor are indeed substantiated in the record. Appendix, pp. 54a-66a (Supplemental Affidavit of Elizabeth N. Marshall), pp. 518a-524a (Deposition of Marshall).
The court also made reference to an account offered by plaintiff Roberts of a phone conversation between Marshall and himself.
It is true that plaintiff Roberts recalls Mayor Marshall as noting in their telephone conversation that Mayor Kraut had fired the prior Solicitors "because they were Democrats" and couldn't understand why Roberts "was taking issue with her decision to do the same thing." The impact of her statement is not clear as she was also making reference to her "right to have her own team as Mayor Kraut had done."
Memorandum, pp. 87a-88a, quoting from Deposition of Roberts, p. 741a.
Not mentioned by the court was that Roberts had allegedly told Marshall in this same conversation that he had learned from "Mrs. Marshall's confidents" (sic) that he was being replaced for reasons of his political affiliation and that Marshall admitted to Roberts that his services as assistant solicitor had been quite acceptable. She also allegedly admitted being advised of the Elrod case and that she had the right to fire Roberts "even for political purposes, if I want to, because you are a lawyer...." Memorandum, pp. 739a-743a.
The district court concluded that the reference to Roberts' political affiliation in the phone call was
overwhelmed by the unchallenged affidavits and testimony which reveal a totally different motivation for Mayor Marshall's action.... This isolated reference under all the circumstances of the record does not support an inference of political discrimination and would be an insufficient base upon which to uphold a verdict for plaintiff. Consequently, I conclude that there exists no genuine issue as to any material fact and that the record demonstrates as a matter of law that plaintiffs were not discharged because of their political belief or affiliations.
Defendant's motion for summary judgment was granted by the court pursuant to Rule 56(e), Fed.R.Civ.P. Written in response to a series of Third Circuit decisions allowing parties opposing such motions to rely mainly on facts alleged in their pleadings, 56(e) requires that See Advisory Committee's Note on 1963 Amendment to Rule 56(e); Adickes v. Kress and Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 1609-10, 26 L.Ed.2d 142 (1970); Robin Construction Co. v. United States, 345 F.2d 610, 614-15 (3d Cir. 1965).
Interpreting the mandate of Rule 56(e), this court has made clear that a party resisting the motion cannot expect to rely merely upon bare assertions, conclusory allegations, or suspicions. See Tilden Finance Corp. v. Palo Alto Service, Inc., 596 F.2d 604, 607 (3d Cir. 1979); Tunnell v. Wiley, 514 F.2d 971, 976 (3d Cir. 1975); Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972); Robin Construction Co., 345 F.2d at 614.
It is also the case, however, that summary judgment has been characterized as "a drastic remedy," Tomalewski v. State Farm Life Insurance Co., 494 F.2d 882, 884 (3d Cir. 1974), and that courts are to resolve any doubts as to the existence of genuine issues of fact against the moving parties, United States ex rel. Jones v. Rundle, 453 F.2d 147, 150 (3d Cir. 1971). Furthermore, even if the preponderance of the evidence should appear to lie on the moving party's side, the court's function is not to decide issues of fact, but only to determine whether any issue of fact exists to be tried. Ransburg Electro-Coating Corp. v. Lansdale Finishers, Inc., 484 F.2d 1037, 1039 (3d Cir. 1973); Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969), cert. denied 396 U.S. 941, 90 S.Ct. 378, 24 L.Ed.2d 244 (1969). Finally, where intent is a substantive element of the course of action generally to be inferred from the facts and conduct of the parties the principle is particularly apt that courts should not draw factual inferences in favor of the moving party and should not resolve any genuine issues of credibility. Associated Hardware Supply Co. v. Big Wheel Distrib. Co., 355 F.2d 114, 121 (3d Cir. 1966).
On the record of this case, there is no question that a trier of fact could find that Mayor Marshall's dismissal of the plaintiffs was not motivated by party differences, but that she simply lacked confidence in their abilities to do the required job. It is not quite so obvious to us as it appeared to the district court, however, that the circumstances of the dismissals together with what was alleged as to the phone conversation between Roberts and Mayor Marshall (including the possibility of summoning the alleged confidants...
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