Smith v. City of Allentown

• Decision Date: 22 December 2009
• Docket Number: No. 09-1998.,09-1998.
• Citation: 589 F.3d 684
• Parties: Thomas A. SMITH, Appellant v. CITY OF ALLENTOWN; Ed Pawlowski.
• Court: U.S. Court of Appeals — Third Circuit

589 F.3d 684

Thomas A. SMITH, Appellant v. CITY OF ALLENTOWN; Ed Pawlowski.

No. 09-1998.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) November 5, 2009.

Filed December 22, 2009.

Richard J. Orloski, The Orloski Law Firm, Allentown, PA.

Edward J. Easterly, George C. Hlavac, Steven E. Hoffman, Tallman, Hudders & Sorrentino, Allentown, PA.

Before: SCIRICA, Chief Judge, JORDAN and COWEN, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Thomas Smith appeals an order of the United States District Court for the Eastern District of Pennsylvania granting summary judgment in favor of the City of Allentown and its Mayor, Ed Pawlowski, on Smith's claims for discrimination based upon his age and political affiliation. For the reasons that follow, we will affirm.

I. Background

A. Facts Underlying Smith's Claims

At the time of Smith's termination on October 19, 2006, he was fifty-five years old and a registered member of the Republican party. He worked as the Superintendent of the City of Allentown Recreation Bureau, a post to which he was appointed in 2000 by former Mayor William Heydt, who also is a Republican. As Superintendent, Smith was responsible for overall management of the Recreation Bureau, including seven full-time staff members and between 150 and 200 part-time, seasonal employees. He prepared budgets, developed new recreation programs, ran the City's organized sports programs, and assisted with the planning of "SportsFest," an annual community festival of athletic events. As Superintendent, he set green fees at the municipal golf course and administered the course's annual marketing budget. He was also responsible, along with the heads of two other City departments, for managing the City's swimming pools.

In November 2001, Democrat Roy Afflerbach succeeded Heydt as Mayor. Smith continued to serve as Superintendent of the Recreation Bureau throughout the Afflerbach administration, weathering a funding crisis and preserving many of the City's recreation programs. In early 2002, Afflerbach appointed appellee Ed Pawlowski as Director of Community and Economic Development. Pawlowski thus became Smith's immediate supervisor in the City government. According to Pawlowski, there were a number of problems with Smith's performance as Superintendent. Pawlowski said that Smith neglected to create new recreational programs or to promote existing recreation offerings. Smith acknowledges that Pawlowski chastised him, and the other department heads who operated the swimming pools, for failing to perform necessary pool upkeep.

In late 2004, Pawlowski resigned in protest over certain policies implemented by the Afflerbach administration. His successor and hence Smith's new supervisor, was Lauren Giguere. She developed a performance plan that established a series of goals for the Recreation Bureau. The plan required Smith to establish bureau-wide financial procedures, create a master plan for cooperation between the Recreation Bureau and the Parks Bureau, explore options for constructing new recreation centers, and implement new software programs to increase Bureau efficiency.

In early 2005, Pawlowski announced his candidacy for Mayor of Allentown on the Democratic ticket. The November 2005 general election pitted Pawlowski as the Democratic candidate against former Mayor Heydt on the Republican ticket. Smith supported Heydt's renewed bid for office and placed a pro-Heydt campaign sign in his yard approximately three weeks before the election. Pawlowski ultimately emerged victorious in the election.

Sometime during the first half of 2006, Smith allegedly had a conversation with his friend James Spang, a Democrat who had worked on Pawlowski's campaign.¹ According to Smith, Spang stated that Pawlowski "viewed [Smith] as a political enemy[ ] of sorts" and believed that Smith had improperly attempted to influence two members of the City's recreation commission to support Heydt's bid for Mayor. (App. at 35a.) In contrast, Spang testified that he approached Smith to express concern that Heydt had received preferential invitations to events at SportsFest, while Pawlowski had not. Spang recalled the conversation lasting approximately two minutes, during which he encouraged Smith to refrain from politicizing events and recommended that future invitations be extended in a more neutral fashion. Spang, who does not recall uttering the phrase "political enemy," explained that he approached Smith because he believed that Smith had a future as a candidate for local office and that Smith's political prospects would be placed in jeopardy if he were perceived as using City events for partisan purposes. Spang testified that he never informed Pawlowski of his conversation with Smith, and Smith possesses no knowledge regarding why Spang would have represented that Pawlowski considered Smith a political foe.

In May 2006, then-Mayor Pawlowski appointed Francis Dougherty, who until that time had worked in Philadelphia, to replace Giguere as Director of Community and Economic Development for Allentown. Dougherty conducted a review of Smith's file and determined that Smith had failed to achieve any of the goals set forth in Guigere's performance plan. Smith's view is that he had made progress on the goals, but he concedes that he did not fulfill them within the time allotted under Guigere's plan.² Dougherty discovered that during Smith's tenure, the number of rounds played at the municipal golf course had declined and control of the City's Halloween parade had been ceded to a private citizen who was running it with minimal oversight from the Recreation Bureau.³ After reviewing Smith's performance Dougherty concluded that "Smith did not have the skill sets" to implement the City's vision for its recreation programming. (App. at 201a.)

Dougherty recommended to Pawlowski that Smith be discharged. Pawlowski reviewed Dougherty's recommendation and soon agreed with Dougherty's assessment. In addition to the problems identified by Dougherty, Pawlowski knew his office had received complaints that the golf course was poorly managed and that Smith had not developed new golf programming to promote the course. Dougherty testified that he met with Pawlowski in late June 2006 to discuss Smith's employment status and that, at the close of that meeting, Pawlowski instructed him to terminate Smith's employment. Prior to formally terminating Smith, Pawlowski and Dougherty consulted the City Solicitor and Assistant Solicitor as well as Sonya Stephens, a representative from the City's Human Resources Department ("HR"). All three individuals advised against the termination. Pawlowski and Dougherty nevertheless decided to proceed with the firing.

During a one-on-one meeting with Smith on July 24, 2006, Dougherty informed him that he lacked the skills necessary to perform his employment duties effectively and that he was being given the option to resign or retire. According to Smith, Dougherty observed that Smith's fifty-fifth birthday and his employment anniversary, which occurred respectively on August 2 and October 2, were approaching and that Pawlowski wanted to receive Smith's resignation by that birthday but no later than the anniversary date.

Following that conversation, Smith prepared a letter describing his accomplishments as Superintendent of the Recreation Bureau, stating that he was not a political enemy of Pawlowski, and requesting that Pawlowski reconsider his termination. Pawlowski reviewed the letter but declined to reconsider. Smith tendered his resignation, effective October 19, 2006. The City subsequently hired Carl Bruno, who at the time was thirty-six years of age, to replace Smith. Bruno served as Superintendent of the Recreation Bureau for six months, after which he was replaced by Kevin Easterling, then forty-two years of age.

HR representative Stephens testified that she was never formally apprised of Smith's termination and that she discovered it through happenstance, though she could not recall precisely how she learned of it. She further explained that, in her opinion, the firing was unwarranted and that conducting a termination meeting without the involvement of an HR representative was unusual.

B. Procedural History

On October 16, 2007, Smith commenced the present lawsuit. Smith complained that, when terminating his employment Pawlowski and the City of Allentown discriminated against him on the basis of his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34, and on the basis of his political affiliation, in violation of his First Amendment rights. Smith claimed that Dougherty's reference to his birthday during the termination meeting revealed age-based animus, and he contended that Stephens's characterization of his discharge as unusual and unwarranted supported his claim. He further asserted that his having a pro-Heydt campaign sign in his yard during the November 2005 election together with Spang's "political enemy" comment provided evidence that he was fired due to his affiliation with the Republican party. Mayor Pawlowski and the City responded that Smith was terminated not because of his age or political affiliation but because he lacked the skills to lead the Recreation Bureau effectively.

With respect to the age discrimination claim, the District Court found that Smith failed to proffer evidence from which a reasonable jury could conclude that defendants' proffered rationale for terminating him was a pretext for age discrimination. Addressing the political affiliation claim, the Court found that Smith's testimony regarding Spang's "political enemy" comment constituted inadmissible hearsay that could not be considered on summary judgment. Because Smith could not identify an alternate source of Pawlowski's alleged political enmity toward him, the Court concluded that Smith lacked admissible evidence that Pawlowski...