Gulick v. City of Pittston

• Decision Date: 17 January 2014
• Docket Number: Civil Action No. 3:CV–12–0141.
• Citation: 995 F.Supp.2d 322
• Parties: Greg GULICK, Plaintiff, v. CITY OF PITTSTON, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

995 F.Supp.2d 322

Greg GULICK, Plaintiff,

v.CITY OF PITTSTON, Defendant.

Civil Action No. 3:CV–12–0141.

United States District Court, M.D. Pennsylvania.

Jan. 17, 2014.

Barry H. Dyller, Law Office of Barry H. Dyller, Wilkes–Barre, PA, for Plaintiff.

John G. Dean, Joseph J. Joyce, III, Elliott Greenleaf & Dean, Scranton, PA, Mark W. Bufalino, Matthew John Carmody, Elliott Greenleaf & Dean, Wilkes–Barre, PA, for Defendant.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before the Court is Defendant City of Pittston's (the “City”) Motion for Summary Judgment. (Doc. 27.) Plaintiff Greg Gulick (“Gulick”) claims that he was terminated from his employment with the City in violation of his First Amendment association rights. Additionally, Gulick asserts that the City violated the overtime provisions of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201 et seq., during the course of his employment.¹ In moving for summary judgment on the First Amendment claims, the City contends that Gulick cannot establish that his political affiliation or association were causally related to his termination. As to Gulick's FLSA claims, the City argues that it did not violate the FLSA because it did not have knowledge that Gulick worked uncompensated overtime hours. Because Gulick fails to present evidence from which a reasonable jury could conclude that his political association and/or non-association were “substantial or motivating factor[s]” in his termination, the City's motion for summary judgment on the First Amendment claims will be granted. However, because issues of fact exist as to whether the City had knowledge that Gulick worked overtime without compensation, summary judgment will be denied on the FLSA claims.

I. Background

A. Factual Background

Gulick was hired by the City on or about July 20, 2006 to serve as the City's zoning officer, code enforcement officer, and administrative assistant. ( Defendant's Statement of Material Facts “Def.'s SMF”, ¶¶ 2–3; Plaintiff's Statement of Facts “Plf.'s SMF”, ¶¶ 2–3.) Gulick was hired by the City in 2006 while Joseph Keating (“Keating”) was mayor. ( 30(b)(6) Dep.,² 13:3–14.), Keating was mayor from 2006 until 2009. ( Keating Aff., ¶ 1.)

In 2009, Keating ran for re-election. He was challenged in the primary by Jason Klush (“Klush”). ( Klush Dep., 6:12–20.) Keating ran on the same ticket as Councilman Lombardo and Joseph Chernouskas (“Chernouskas”). ( 30(b)(6) Dep., 100:1–3.) Councilman Lombardo and Chernouskas were running for City Council. ( Id.)

According to Gulick, he supported Keating for mayor in the 2009 primary election. ( Gulick Dep., 30:22–24.) The 2009 primary was the first election in which he supported Keating. ( Id. at 32:18–24.) Gulick informed others that Keating was dedicated and hardworking, and he asked that they vote for Keating. ( Id. at 31:2–6, 32:8–17.) Gulick believed that Joseph McClean (“McClean”), a City councilman, was aware of his support for Keating because he told McClean that Keating did a great job and he hoped he would be re-elected. ( Id. at 37:17–25.) For similar reasons, Gulick believed that Councilman Lombardo knew he supported Keating because he indicated to Councilman Lombardo that Keating was a good, dedicated mayor. ( Id. at 38:1–12.) Gulick further assumed that Klush was aware that he supported Keating, although he had never spoken with Klush. ( Id. at 37:2–13.) Klush testified that he only became aware of Gulick's support for Keating after the instant action was commenced. ( Klush Dep., 73:10–74:13.) Gulick further testified that he supported Keating by attending a public rally. ( Gulick Dep., 31:13–23.) Keating, though, was never informed by Gulick that he was supporting his candidacy for mayor in the 2009 election, and he was “not aware if Mr. Gulick actively supported[his] candidacy for mayor.” ( Keating Aff., ¶¶ 2–3.)

Gulick did not put up signs in his yard supporting Keating, nor did he make any contributions to Keating's campaign. ( Gulick Dep., 31:7–12.) Gulick did not hand out flyers or work the polls for Keating on election day, and he did not wear buttons in support of Keating while he was at work. ( Id. at 31:24–32:7.)

Keating was defeated by Klush in the 2009 primary election. ( Def.'s SMF, ¶ 28; Plf.'s SMF, ¶ 28.) Keating then resigned from office. ( Id.) Klush was ultimately elected mayor at the 2009 general election, and he assumed office in January 2010. ( 30(b)(6) Dep., 13:22–14:2.)

On September 13, 2010, the City provided Gulick with written notice about a hearing relative to his job performance. ( Def.'s SMF, ¶ 4; Plf.'s SMF, ¶ 4.) The notice provided that Gulick: (1) failed to timely respond to complaints and concerns about zoning and code violations; (2) failed to ensure full, complete, and uniform enforcement of the City's Rental Inspection Ordinance; (3) failed to act upon directives by City officials to place the owner of the Wayne's World property on Notice of Public Health/Safety violations and/or hazards; and (4) engaged, at times, in a lack of professional and decorum in the dealing with the public. ( Def.'s SMF, Ex. C.) With respect to the notice provided to Gulick, there were no specific complaints set forth in the letter. ( 30(b)(6) Dep., 21:14–16.)

The hearing took place on September 15, 2010. ( Def.'s SMF, ¶ 5; Plf.'s SMF, ¶ 5.) The City's corporate designee testified that there were no specific complaints presented at the September 15, 2010 hearing. ( 30(b)(6) Dep., 21:16–18.) Moreover, the corporate designee testified that: (1) there were no complaints about Gulick in his personnel file, ( id. at 21:19–25); (2) there was no written documentation ever prepared about Gulick failing to respond to concerns or complaints regarding zoning or code violations, ( id. at 18:13–14); (3) the City had no written documentation concerning Gulick's deficiencies in enforcing the Rental Inspection Ordinance, ( id. at 23:8–11); (4) there was no written directive to Gulick about what the City wanted done about the Wayne's World property, ( id. at 43:16–22); and (5) there were no written complaints about Gulick in his personnel file as to his lack of professionalism and decorum when dealing with the public. ( Id. at 45:25–46:3.)

Gulick maintains that the September 15, 2010 hearing was a sham. ( Plf.'s SMF, ¶ 4.) In particular, Gulick notes that on September 15, 2010, the same day as the hearing, two draft resolutions were prepared, one which was prepared by Klush, to hire Joseph Moskovitz (“Moskovitz”). ( Plf.'s SMF, Exs. 7; 12.) Prior to the September 15, 2010 hearing, the City met with Moskovitz in the office of Rose Randazzo, ( Klush Dep., 47:16–20), to see if Moskovitz would be interested in employment with the City. ( 30(b)(6) Dep., 52:6–13.) The meeting was attended by Councilman Lombardo, former City Mayor Mike Lombardo (“former Mayor Lombardo”),³ and Chernouskas. ( 30(b)(6) Dep., 52:16–53:1.) Klush indicated that he also attended that meeting. ( Klush Dep., 47:16–20.) Despite the draft resolutions on September 15, 2010 to hire Moskovitz, the City's corporate designee testified that the City did not decide to hire Moskovitz prior to or simultaneous with the decision to terminate Gulick, ( 30(b)(6) Dep., 58:2–12), because the City had reservations about Moskovitz's background, namely, a DUI and a marijuana possession conviction. ( Id. at 55:13–23.) The corporate designee further testified that Savino Bonita, not Moskovitz, was the first person that the City contacted about the position, but he was not interested in the position. ( Id. at 50:22–51:13.)

On September 19, 2010, Gulick was terminated from his employment with the City. ( Def.'s SMF, ¶ 7; Plf.'s SMF, ¶ 7.) Yet, the City first advertised the Administrator position (which included the tasks performed by Gulick) on September 18, 2010. ( 30(b)(6) Dep., 67:13–15.) In all, the City advertised the position four times between September 18, 2010 and September 20, 2010. ( Id. at 66:25–67:12.) Prior to the publication of the advertisement, a draft of the advertisement was circulated by email between Councilman Lombardo, former Mayor Lombardo, Klush, McClean, and Chernouskas. ( Plf.'s SMF, Ex. 17.) In a response to that email, Councilman Lombardo asked if “anyone [has] spoken to Moskovitz?” ( Id.)

The City interviewed Moskovitz, David Hines (“Hines”), and Anne Bradbury for the Administrator position. ( 30(b)(6) Dep., 72:24–73:4, 74:7.) On September 24, 2010, the City hired Moskovitz. ( Id. at 71:17–21.)

When Moskovitz was hired, his duties included those formerly held by Gulick, specifically code enforcement, zoning enforcement, and various administrative tasks. ( Id. at 76:1–16.) In 2011, however, the City hired Harry Smith, and his duties included enforcing the Rental Inspection Ordinance and code enforcement. ( Id. at 26:13–27:3.) And, in September 2012, Hines was hired as operations coordinator, and his tasks included zoning enforcement. ( Id. at 27:6–11, 30:17–25.)

While he was employed by the City, Gulick was supervised by Keating and Councilman Lombardo, ( Def.'s SMF, ¶ 41; Plf.'s SMF, ¶ 41), but his immediate supervisor was City Clerk Ron Mortimer (“Mortimer”). ( Id.) Once Councilman Lombardo became Director of Accounts and Finance, he was in charge of Gulick's entire department. ( Def.'s SMF, ¶ 42; Plf.'s SMF, ¶ 42.)

During the course of his employment with the City, Gulick's departmental working hours were thirty-five (35) hours per week, ( Def.'s SMF, ¶ 40; Plf.'s SMF, ¶ 40), and he was paid an hourly rate. ( Gulick Dep., 56:13–14.) Gulick reported his hours on time sheets that were submitted to Mortimer and signed by both Mortimer and him. ( Def.'s SMF, ¶ 43; Plf.'s SMF, ¶ 43.) Employees indicated they were present by marking “P” on the sheets, but they did not mark the time sheets to reflect the specific number of hours they worked each day. ( Gulick Dep., 20:–24–21:10.) If there was holiday, sick, or vacation time, that...