Robb v. City of Philadelphia, 83-1578

• Citation: 733 F.2d 286
• Decision Date: 07 May 1984
• Docket Number: No. 83-1578,83-1578
• Parties: 116 L.R.R.M. (BNA) 3081, 1 Indiv.Empl.Rts.Cas. 1787 ROBB, James, Appellant, v. CITY OF PHILADELPHIA and Mann, Fredric R. and Horowitz, Vladimir and Crawford, Robert W. and Washington, Nathaniel and Doe, John.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 286

733 F.2d 286

116 L.R.R.M. (BNA) 3081, 1 Indiv.Empl.Rts.Cas. 1787

ROBB, James, Appellant, v. CITY OF PHILADELPHIA and Mann, Fredric R. and Horowitz Vladimir and Crawford, Robert W. and Washington Nathaniel and Doe, John.

No. 83-1578.

United States Court of Appeals Third Circuit.

Argued March 8, 1984.

Decided May 7, 1984.

Gary Green, Neil A. Morris (argued), Sidkoff, Pincus, Greenberg, & Green, P.C., Philadelphia, Pa., for appellant.

Bernard G. Segal, Jerome J. Shestack, David Smith (argued), Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellee Fredric R. Mann.

Steven R. Waxman (argued), Jane Ruddell, Bolger & Picker, Philadelphia, Pa., for appellee Vladimir Horowitz.

Marilyn Z. Kutler, Barbara R. Axelrod, Michael B. Tolcott (argued), Asst. City Sol., Philadelphia, Pa., for appellees, City of Philadelphia, Robert W. Crawford, and Nathaniel Washington.

Before ALDISERT, BECKER and PECK, ^* Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

In this appeal by plaintiff-appellant James Robb from a dismissal of his complaint under Rule 12(b)(6), F.R.Civ.P., for failure to state a claim upon which relief could be granted, we must decide whether his complaint made out a sufficient claim for relief under 42 U.S.C. Sec. 1983. ¹ The complaint charges a conspiracy among private individuals, public officials, and the City of Philadelphia to transfer Robb from one civil service position to another and deny him a promotion in retaliation for his refusal to settle a private lawsuit, his union activity, and statements he made to the press. It avers that these actions deprived him of (1) property and liberty without due process of law in violation of the fourteenth amendment and (2) freedom of speech and association in violation of the first amendment. It also avers that defendants' actions violated state law. We hold that although Robb failed to demonstrate a property or liberty interest that could form the basis of a fourteenth amendment due process claim cognizable under Sec. 1983, he did make out a sufficient claim for relief under Sec. 1983 based on the first amendment. Accordingly, we affirm the judgment of the district court in part, reverse in part, and remand for consideration of Robb's first amendment claims and his pendent state law claims.

I.

We begin with a summary of the facts, culled from plaintiff's complaint. Robb is a career civil service employee of the City of Philadelphia. He joined the city's Department of Recreation in 1972 at the salary level of "Recreation Leader One." In 1973, he was assigned to the Cultural Affairs and Special Events Division of that department. Sometime in early 1980, Robert W. Crawford, then Commissioner of Recreation, issued an administrative order designating Robb as manager of the Robin Hood Dell East, a city-operated outdoor amphitheater. As manager, Robb scheduled concerts and promoted the Dell and its activities.

Completely aside from his civil service position, Robb also serves, ostensibly after hours, as president of the Performing Arts Society of Philadelphia, a non-profit charitable trust dedicated to the promotion and presentation of concerts at reasonable prices. In 1978, as president, he arranged for Vladimir Horowitz, a world famous concert pianist, to give a concert in Philadelphia. Robb claims that Horowitz breached his contract, and Robb threatened to sue. At Horowitz's behest, Fredric R. Mann, an influential Philadelphian and friend of Horowitz, got involved in the controversy, warning Robb not to institute suit. Robb ignored this admonition and filed suit against Horowitz in New York on May 22, 1980.

The complaint contends that on May 31, 1980, Mann accosted Robb at a concert. After grabbing him by the shoulders, banging his head against a brick wall, and choking him, Mann told Robb that he had been secretly negotiating with Roy Cohn, Robb's attorney in the Horowitz suit, and that they had effected a settlement adverse to Robb's interests. A few days later, Robb was presented with the supposed settlement agreement, which he rejected. The following day, Crawford, Robb's superior in the Department of Recreation, ordered Robb to accompany him to the Locust Club in Philadelphia to attend a meeting called by Mann. At the meeting, Mann again ordered Robb to sign the settlement agreement. When Robb refused, Mann stated that if he did not sign, Mann would cause Robb to lose his position as manager of the Dell and that Crawford would support him in that effort. Crawford said nothing, and Robb walked out of the meeting. Crawford later berated Robb for being discourteous to Mann.

Robb averred that Crawford and Mann continued to harass him throughout the summer and fall of 1980. In July, Crawford took steps to put Robb's job performance in a false light by prohibiting him, inter alia, from spending money that had been budgeted for advertising at the Dell and then falsely attributing the resulting drop in attendance to Robb's performance. In August, Mann caused Cohn, Robb's attorney in the Horowitz case, to resign. In September, after repeated, unsuccessful attempts to get Robb to sign the settlement agreement, Mann told Robb that he would ensure that Robb did not get promoted or get any work assignments involving cultural affairs. Also about this time, Robb, in exercising his rights under a collective bargaining agreement, requested a job audit to determine if "out of job classification" pay was due him under the civil service regulations because he was still being paid at the rate of recreation leader even though he was performing the function of manager of the Dell.

In October 1980, in conjunction with Mann and others, the city created the position of "Cultural Affairs Director." Robb contends that the city did not place the position under the Department of Recreation, where it belonged, but under the City Representatives' Office. In addition, the city departed from its accepted practice of promulgating fair job qualifications for the position and instead skewed the qualifications so its pre-selected candidate, David Speedie, an associate and friend of Mann, would be the only person who could qualify for the position. Robb claims that these actions were designed to exclude him from consideration for a position that Mann had promised him in return for settling the Horowitz lawsuit, that would have represented a promotion, and for which he was eminently qualified.

During the next eight months, Mann and various city officials, including Nathaniel Washington, Crawford's replacement, continued to fight Robb's refusal to settle the Horowitz suit. They ignored the results of a job audit, released in the spring of 1981, that suggested that Robb was entitled to have his manager position upgraded in salary. In addition, they were particularly upset by statements they suspected Robb made to the press, as reported by the Philadelphia Daily News in June and early July of 1981. Thus, on July 22, 1981, they caused Robb to be removed from his position as manager of the Dell, replacing him with persons less qualified than he. In further retaliation, Robb was transferred in August 1981 from the Cultural Affairs and Special Events Division of the Department of Recreation to a playground supervisory position within the department.

Believing that defendants had conspired to deprive him of (1) liberty and property without due process of law in violation of the fourteenth amendment and (2) freedom of speech and association in violation of the first amendment, Robb sought relief in district court under Sec. 1983. He also sought relief under Pennsylvania state law. The district court dismissed the federal claims for failure to state a claim for relief under Sec. 1983 and accordingly dismissed his pendent state law claims. Robb appealed.

II.

Before us, Robb contends that his complaint sets forth a valid claim for relief under Sec. 1983. He proceeds on the theory that Horowitz, Mann, the City of Philadelphia, and its present and former Recreation Commissioners--Crawford and Washington--conspired to deprive him of stated rights guaranteed by the Constitution. Specifically, his complaint avers that by transferring him from his position as manager of the Dell to a playground staff position and denying him a promotion to the position of Cultural Affairs Director in retaliation for his refusal to drop his lawsuit against Horowitz, defendants deprived him of property and liberty without due process of law in violation of the fourteenth amendment. It further avers that because the transfer was in retaliation for statements he made to the Philadelphia Daily News and because the transfer and denial of promotion were in retaliation for his efforts to enforce his collective bargaining agreement, defendants deprived him of freedom of speech and association in violation of the first amendment.

On review, we must accept all of the well-pleaded allegations of the complaint as true and construe the complaint liberally in the light most favorable to plaintiff, Gomez v. Toledo, 446 U.S. 635, 636 n. 3, 100 S.Ct. 1920, 1921 n. 3, 64 L.Ed.2d 572 (1980); Jennings v. Shuman, 567 F.2d 1213, 1216 (3d Cir.1977). We should not affirm a dismissal at the pleadings stage, especially of a civil rights action, unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Scher v. Board of Education, 424 F.2d 741, 744 (3d Cir.1970).

To establish a valid claim under Sec. 1983, a claimant must show: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). We will now...