Bertani v. Westmorland Cnty.

• Decision Date: 11 August 2014
• Docket Number: 2:12cv1359
• Citation: 212 F.Supp.3d 564
• Parties: Dante BERTANI, Plaintiff, v. WESTMORLAND COUNTY, PENNSYLVANIA, Charles Anderson, Commissioner, in his individual capacity, and Tyler Courtney, Commissioner, in his individual capacity, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

212 F.Supp.3d 564

Dante BERTANI, Plaintiff,

v.WESTMORLAND COUNTY, PENNSYLVANIA, Charles Anderson, Commissioner, in his individual capacity, and Tyler Courtney, Commissioner, in his individual capacity, Defendants.

2:12cv1359

United States District Court, W.D. Pennsylvania.

Signed August 11, 2014

Samuel J. Cordes, Samuel J. Cordes & Associates, John E. Black, III, Pittsburgh, PA, for Plaintiff.

Thomas P. Pellis, John M. Scales, Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C., Greensburg, PA, for Defendants.

MEMORANDUM ORDER

David Stewart Cercone, United States District Judge

Plaintiff, Dante Bertani ("Bertani" or "Plaintiff"), filed an Amended Complaint alleging that he was discharged from his position as the Westmoreland County Public Defender by Defendants, Westmoreland County (the "County"), Commissioner Charles Anderson ("Anderson"), and Commissioner Tyler Courtney ("Courtney") (collectively "Defendants"), in violation of his right to free association under the First and Fourteenth Amendment of the U.S. Constitution and 42 U.S.C. § 1983, and in violation of his rights under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the "ADEA"). Before the Court are Defendants' Motion for Summary Judgment and Motion to Strike Concise Statement of Material Facts, and Bertani's Motion for Leave to File Second Amended Complaint.

A. Motion to Strike

Defendants ask this Court to strike Bertani's Statement of Material Facts Precluding Summary Judgment. Defendants contend that such statement, made in addition to Bertani's Response to Defendants' Concise Statement of Material Facts, is not permitted by either the Federal Rules of Civil Procedure or the Western District's Local Rules of Civil Procedure, and is an "unauthorized supplemental brief in opposition to summary judgment."

Under this District's Local Rules, a party opposing a motion for summary judgment must file:

A separately filed concise statement, which responds to each numbered paragraph in the moving party's Concise Statement of Material Facts by:

a. admitting or denying whether each fact contained in the moving party's Concise Statement of Material Facts is undisputed and/or material;

b. setting forth the basis for the denial is any fact in the moving party's Concise Statement of Material Facts is not admitted in its entirety (as to whether it is undisputed or material) with appropriate reference to the record ... ; and

c. setting forth in separately numbered paragraphs any other material facts that are allegedly at issue , and/or that the opposing party asserts are necessary for the Court to determine the motion for summary judgment[.]

See LCvR 56(C)(1)(emphasis added). Here, Bertani filed a Response to Defendants' Concise Statement of Material Facts in which he responded to each numbered paragraph indicating whether such fact was disputed and/or material, then filed a separate Concise Statement, in separately numbered paragraphs, setting forth additional facts he felt were material and necessary. Though the Local Rules contemplated one document, Bertani's use of two (2) separate filings is not a material breach that would cause this Court to strike his Statement of Material Facts Precluding Summary Judgment.

Accordingly, Defendant's Motion to Strike will be denied.

B. Motion for Summary Judgment

Republican Commissioners Anderson and Courtney were elected to the office of the Westmoreland County Board of Commissioners (the "Board") in November 2011, and sworn in in January of 2012.

Defendants' Concise Statement of Material Facts ("Def. CSMF") ¶ 39. The Republican Party, therefore, held the majority on the Board for the first time in more than fifty-five (55) years. Plaintiff's Statement of Material Facts ("PL. SMF") ¶ 2. Bertani was the chair of the Westmoreland Democratic Committee since 2006, and was the chair during the 2011 elections. Pl. SMF ¶ 20. Bertani, who is eighty-one (81) years of age, began his tenure as Chief Public Defender in 1969. Pl. SMF ¶ 12.

On January 20, 2012, Anderson asked Bertani if he had thought about retiring. Pl. SMF ¶¶ 34–41. Bertani informed Anderson that he did not plan to retire. Pl. SMF ¶¶ 42–43. In February, Anderson again spoke with Bertani and asked him if he gave any more thought to retiring. Pl. SMF ¶ 46. In the first week of March, 2012, Anderson asked Bertani for the third time if he planned to retire. Pl. SMF ¶ 48. Even though Bertani once again indicated he did not plan to retire, Anderson said he wanted an answer by the end of March. Pl. SMF ¶¶ 49 & 50. During the March meeting, Anderson told Bertani that the GOP Commissioners had lost confidence in him. Pl. SMF ¶ 53. Anderson, however, was unable to tell Bertani the basis for the Board's loss of confidence in him. Pl. SMF ¶¶ 55–57.

On or about March 20, 2012, Anderson's Administrative Assistant Matthew Junker ("Junker") paid a visit to Bertani. Pl. SMF ¶ 61. With Junker was Wayne McGrew ("McGrew"), the person the Defendants had chosen as the new Public Defender while Bertani was on vacation. Id. With McGrew standing there, Junker told Bertani that the Board was discharging him from his position of Public Defender at the end of the month, and replacing him with McGrew. Pl. SMF ¶ 63. After Bertani's termination, Anderson told the local newspaper that Bertani had served the people of Westmoreland County well, but "it's a new day and a new regime." Pl. SMF ¶ 71.

Bertani contends he was discharged from his position as Westmoreland County Public Defender in violation of his right to free association under the First and Fourteenth Amendments, and in violation of his rights under the ADEA. Defendants, however, now contend that Bertani was fired because of: (1) unpaid real estate taxes reported in the mid to late 1990's (Def. CSMF ¶¶ 9 & 10); (2) a 1996 dispute with the district magistrates (Def. CSMF ¶¶ 5–7); (3) a minor accident with Courtney's parked car that occurred in 2011 when Bertani was parallel parking on a Greensburg street (Def. CSMF ¶¶ 30–38; Pl. SMF ¶¶ 115–169); (4) rumors that he was habitually late for court (Def. CSMF ¶ 4); and (5) an old newspaper article in which Judge McCormick, during a heated hearing, expressed displeasure with Bertani (Pl. SMF ¶ 98).

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. To support denial of summary judgment, an issue of fact in dispute must be both genuine and material, i.e. , one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson v. Liberty Lobby , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Id . The court's consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonableinferences from the facts must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp. , 822 F.2d 358, 361 (3d Cir. 1987).

When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P 56(e). Further, the nonmoving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester , 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). The non-moving party must respond "by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. o f Sterling, Inc. , 142 F.3d 639, 643 n. 3 (3d Cir. 1998), (quoting Fuentes v. Perskie , 32 F.3d 759, 762 n.1 (3d Cir. 1994) ).

1. Political Affiliation

In Elrod v. Burns , 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel , 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Supreme Court clarified the constitutional constraints regarding political patronage, holding that termination of public employees because of their political affiliation violates the First Amendment unless the position at issue involves policymaking. See Elrod v. Burns , 427 U.S. at 359, 373, 96 S.Ct. 2673 (concluding that conditioning public employment on support for the political party in power "unquestionably inhibits protected belief and association"); Branti v. Finkel , 445 U.S. at 513–17, 100 S.Ct. 1287. In general, "an employee's exercise of First Amendment rights outweighs the government's interest in maintaining a system of political patronage." Stephens v. Kerrigan , 122 F.3d 171, 176 (3d Cir. 1997) (citations omitted).

In order to establish a prima facie case of discrimination based on political patronage in violation of the First Amendment, Bertani must show that (1) he was employed at a public agency in a position that does not require political affiliation, (2) he was engaged in constitutionally protected conduct, and (3) this conduct was a substantial or motivating factor in the Defendants' employment decision. See, e.g. , Stephens v. Kerrigan , 122 F.3d at 176. Upon such a showing, the burden then shifts to the Defendants to show "by a...