Bell v. Lackawanna Cnty.
| Decision Date | 31 August 2012 |
| Docket Number | Civil Action Nos. 3:08–CV–1926,3:08–CV–737. |
| Citation | 892 F.Supp.2d 647 |
| Parties | Thomas J. BELL, Anthony Bernardi, Joseph DeAntona, Joseph McCawley, Jayme Morano, Patrick O'Malley, Nicholas Parise, Dominick Rinaldi, Dominic Romanini, Bruce Smallacombe, Charles Spano, William Tonkin, Jr., Thomas Galella III, Gary Propersi, and Thomas Harrison, Plaintiffs v. LACKAWANNA COUNTY, Corey O'Brien and Michael Washo, Defendants. Kenneth Kovaleski and Thomas Bradley, Plaintiffs v. Lackawanna County, Corey O'Brien and Michael Washo, Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
OPINION TEXT STARTS HERE
Barry H. Dyller, Kelly A. Bray, Law Office of Barry H. Dyller, Shelley L. Centini, Shelly L. Centini, Esq., Wilkes–Barre, PA, for Plaintiffs.
Deborah H. Simon, Timothy T. Myers, Elliott, Greenleaf & Siedzikowski, Blue Bell, PA, Joel M. Wolff, Joseph J. Joyce, III, Shanna W. Williamson, Elliott Greenleaf & Siedzikowski, P.C., James A. Doherty, Jr., Scanlon, Howley, Scanlon & Doherty, Scranton, PA, John G. Dean, Elliott Greenleaf & Dean, Wilkes–Barre, PA, for Defendants.
Shortly after a new administration took office in Lackawanna County in January of 2008, the seventeen plaintiffs in these two actions, all of whom were County employees who supported the prior administration, were terminated. They claim that Democratic County Commissioners Corey O'Brien and Michael Washo terminated them because of their affiliation with the Republican party, in violation of their First Amendment rights. The Commissioners and the County deny this contention and move for summary judgment against all plaintiffs. Were defendants motivated by partisan retribution in their decision to terminate these seventeen plaintiffs, or were plaintiffs' terminations merely a collateral consequence of the legitimate renovation of County government? For the reasons that follow, the court concludes that a jury must provide the answer to this question. Accordingly, the court will grant the motions in part, and deny the motions in part.
I. Background1A. Facts2
Lackawana County is a political subdivision of the Commonwealth of Pennsylvania governed under the provisions of a Home Rule Charter adopted in 1976. .3 Every four years Lackawana County residents elect three County Commissioners. (Doc. 116 ¶ 3; Doc. 159 ¶ 3). Voters are permitted to cast votes for two Commissioners, and the three highest vote-getters are elected to the position of Commissioner. (Doc. 116 ¶ 4; Doc. 159 ¶ 4). The Home Rule Charter also dictates various facets of County operations, including the requirement that the Commissioners adopt a personnel code containing policies for employee hiring. (Doc. 116 ¶ 16; Doc. 159 ¶ 16). The Home Rule Charter explicitly mandates that all appointments shall be made on the basis of merit and fitness. (Doc. 116 ¶ 16; Doc. 159 ¶ 16).
Prior to the 2007 election, the County Commissioners were Robert Cordaro (“Cordaro”), Anthony (A.J.) Munchak (“Munchak”), both Republicans, and Michael Washo (“Washo”), a Democrat. Cordaro and Munchak both ran to retain their positions in the 2007 election. (Doc. 116 ¶ 19; Doc. 159 ¶ 19). Corey O'Brien (“O'Brien”) joined Washo to form the Democratic ticket in the 2007 race. As part of their platform, Washo and O'Brien pledged to make county government more transparent and accessible; they promised to broadly advertise county employment opportunities and to seek applications for county employment from all eligible residents, an approach which they claim had not been attempted heretofore in the County. Washo and O'Brien also promised to operate government more efficiently and spend wisely. (Doc. 116 ¶¶ 20, 22; Doc. 159 ¶ 20, 22). Voters elected Washo, O'Brien and Munchak, effectively transferring the control of County government to the two Democrat County Commissioners who formed the majority. (Doc. 116 ¶ 23; Doc. 159 ¶ 23).
At the time of the 2007 election, all seventeen plaintiffs in these two actions were employed by Lackawanna County. ( See No. 3:08–CV–1926, Doc. 20; No. 3:08–CV–0737, Doc. 1). Thomas Bell (“Bell”) was the Lackawanna County Tax Assessment Administrator. (Doc. 20 ¶ 18). Anthony Bernardi (“Bernardi”) held the position of Director of Personnel. ( Id. ¶ 24). Joseph DeAntona (“DeAntona”) was Director of Parks, Recreation and Sports. ( Id. ¶ 30). Joseph McCawley (“McCawley”) held the position of Fleet Manager and Risk Manager. ( Id. ¶ 36). Jayme Morano (“Morano”) was Director of Buildings and Grounds. ( Id. ¶ 42). Patrick O'Malley (“O'Malley”) was Assistant Director of Parks and Recreation. ( Id. ¶ 48). Nicolas Parise (“Parise”) held the title of Assistant Director of Buildings and Grounds. ( Id. ¶ 54). Dominic Rinaldi (“Rinaldi”) was employed by the County as Director of Purchasing. ( Id. ¶ 60). Dominick Romanini (“Romanini”) was a Grant Writer for the County. ( Id. ¶ 66). Charles Spano (“Spano”) held the position of Deputy Director of Voter Registration. ( Id. ¶ 72). William Tonkin Jr. (“Tonkin”) was Park Supervisor. ( Id. ¶ 78). Bruce Smallacombe (“Smallacombe”) was employed by the County as Director of Roads and Bridges. ( Id. ¶ 84). Thomas Galella III (“Galella”) held the title of GIS (Geographic Information Systems) Coordinator within the Assessor's Office. ( Id. ¶ 89A). Gary Propersi (“Propersi”) was Director of Hotel Tax/Personal Property Tax. ( Id. ¶ 89G). Thomas Harrison (“Harrison”) was employed as the Director of Tax Claims in the Tax Claims Department. ( Id. 89M). Kenneth Kovaleski (“Kovaleski”) held the position of Assistant Public Defender. ( No. 3:08–CV–0737, Doc. 1 ¶ 9). Finally, Thomas Bradley (“Bradley”) was employed as the Director of Veterans Affairs. ( Id. ¶ 15). The vast majority of these seventeen men were registered Republicans, and all supported the Republican party and its candidates in the 2007 Commissioner election. ( See No. 3:08–CV–0737, Doc. 1 ¶¶ 14, 19; No. 3:08–CV–1926, Doc. 20 ¶¶ 19, 25, 31, 37, 43, 49, 55, 61, 67, 73, 79, 85, 89B, 89H, 89N).
After the election and prior to taking office, Washo and O'Brien learned that the County faced a serious and potentially devastating budget shortfall of $8 million dollars. (Doc. 116 ¶ 24; Doc. 159 ¶ 24). They established between 12 and 15 committees to review all County departments and related functions. (Doc. 116 ¶ 25; Doc. 159 ¶ 25). Washo and O'Brien directed Elizabeth Randol (“Randol”), their campaign manager and incoming Chief of Staff, to notify, inter alios, these plaintiffs that the new Commissioners intended to open up their positions, and solicit applications by posting the jobs on a website and advertising the positions in the local newspaper. (Doc. 116 ¶ 39; Doc. 159 ¶ 39). Randol informed existing employees that they were welcome to apply for their current positions or to seek new positions, but that they must formally apply and be interviewed. (Doc. 117, Ex. L, at 93–95).
On December 11, 2007, and January 4, 2008, Washo and O'Brien placed advertisements in the local newspaper for numerous County positions. (Doc. 116 ¶¶ 35, 36; Doc. 159 ¶¶ 35, 36). The advertisements provided an internet address where Washo and O'Brien posted job descriptions for the open positions that had been prepared for Washo and O'Brien by a human resources consultant. (Doc. 116 ¶ 37; Doc. 159 ¶ 37; Doc. 173, Ex. 19, at 213–17). Disclaimers on the advertisements stated that the job summaries were not intended to be formal job descriptions or to contain a complete list of responsibilities and qualifications for the positions. (Doc. 117, Ex. U; Doc. 173, Ex. 19, at 214).
As part and parcel of the analysis of County employment opportunities and practices, O'Brien created the “Washo–O'Brien Hiring Chart.” (Doc. 188, Ex. 50; Doc. 175, Ex. 23, at 96–100). O'Brien claims that this chart is a budgetary document. It lists those County employees who were terminated and those who were hired, along with job titles and salaries. (Doc. 188, Ex. 50; Doc. 175, Ex. 23, at 96–100). Washo and O'Brien retained certain individuals (department heads) that minority County Commissioner Munchak supported for retention, all of whom backed the Cordaro–Munchak campaign in the 2007 election. (Doc. 116 ¶¶ 32, 33; Doc. 159 ¶¶ 32, 33).
On January 7, 2008, Commissioners Washo, O'Brien and Munchak were sworn into office. ( See Doc. 117, Ex. L, at 25). Simultaneously, fourteen of the named plaintiffs in this action were terminated from the County. ( See Doc. 23 ¶¶ 20, 26, 32, 38, 44, 50, 56, 62, 68, 74, 80; Doc. 185, Ex. 29E ¶ 26, Ex. 29F ¶ 19, Ex. 29J ¶ 19). With respect to the remaining three, Kovaleski's employment with the County ended February 12, 2008 (Doc. 185, Ex. 29G ¶ 24); Bradley was terminated March 10, 2008 (Doc. 184, Ex. 29C ¶ 19); and Smallacombe's termination was effective April 12, 2008. (Doc. 23 ¶ 86). None of the 17 plaintiffs was offered a position through the hiring process conducted by Washo and O'Brien and each filed a claim for unemployment compensation after termination of employment.4 (Doc. 116 ¶ 44; Doc. 159 ¶ 44). The County's express reason for termination, as set forth on the unemployment forms for each plaintiff, was “change of administration,” except for Smallacombe, whose form referenced “lack of work” as the reason for termination. (Doc. 189, Ex. 51; Doc. 191, Ex. 57).
B. Procedural History
The plaintiffs in Kovaleski v. Lackawanna County (Civ.A. No. 3:08–CV–0737) instituted the first lawsuit in these consolidated matters. Plaintiffs Kenneth Kovaleski and Thomas Bradley filed their complaint on April 21, 2008, against Lackawanna County, O'Brien and Washo. ( No. 3:08–CV–0737, Doc. 1).5 Pursuant to 42 U.S.C. § 1983, plaintiffs allege violations of their First Amendment rights to free speech and association, First Amendment retaliation and violations of their Fourteenth Amendment equal protection and due process rights. ( Id. ¶¶ 35–38). Plaintiff...
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