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ALDERMAN v. PHILADELPHIA HOUS. AUTH.

September 24, 1973

Brenda ALDERMAN et al., Plaintiffs,
v.
The PHILADELPHIA HOUSING AUTHORITY et al., Defendants


Newcomer, District Judge.


The opinion of the court was delivered by: NEWCOMER

NEWCOMER, District Judge.

 Presently before the Court is the above captioned plaintiffs' motion for a declaratory judgment requesting that their terminations of employment by the defendants be adjudged a violation of their right to freedom of speech as guaranteed and protected by the First Amendment of the United States Constitution and the Civil Rights Act of 1871, Act of April 20, 1871, Chapter 22, Section 1, 17 Stat. 13, 42 U.S.C.A. § 1983. Also before the Court is the above captioned plaintiffs' motion for a permanent injunction requesting the defendants be compelled to rescind the plaintiffs' terminations, and to restore them to their former employment with back pay at six per cent interest, and seniority retroactive to the dates of their terminations.

 On April 2, 1973, the plaintiffs, four former non-tenured employees of the defendant, Philadelphia Housing Authority, filed a Complaint and Motion for a Preliminary Injuction averring that their discharge from the Philadelphia Housing Authority for failure to agree not to interfere with an upcoming Philadelphia Housing Authority tenants' election, regarding the Resident Advisory Board of Philadelphia, Inc., violated their right to freedom of speech. The Plaintiffs also averred that a memorandum circulated by the Philadelphia Housing Authority was vague and over-broad, and for that reason, unconstitutional. Furthermore, the plaintiffs averred that their discharge was unlawful because the Philadelphia Housing Authority failed to give them a prior evidentiary hearing.

 On April 13, 1973, the plaintiffs withdrew their motion for a preliminary injunction. Thereafter, the Philadelphia Housing Authority filed an answer to the complaint and a motion to dismiss. The bases of the defendants' motion were as follows:

 
A. The Philadelphia Housing Authority's discharge of the plaintiffs for failure to sign the above mentioned memorandum and to agree not to interfere with the upcoming Resident Advisory Board election was a reasonable exercise of proper authority and was necessary to serve certain enumerated and significant governmental interests of the Philadelphia Housing Authority;
 
B. The memorandum was neither vague nor overbroad, and the plaintiffs were fully aware of and understood the limitations it put on their activities; and
 
C. The plaintiffs, who were non-tenured employees of the Philadelphia Housing Authority, had no right to a prior hearing before their discharge.

 On May 15, 1973, this Court granted the defendants' motion in part, and held that the memorandum in question was "neither vague nor overbroad nor violative of any constitutional right" and that the defendants' discharge of the plaintiffs was not unlawful because of the defendants' failure to give the plaintiffs a prior hearing. An evidentiary hearing was ordered on the plaintiffs' motion for a declaratory judgment that their firings were in violation of their right to freedom of speech and on the plaintiffs' motion for a permanent injunction compelling the defendants to rescind the plaintiffs' firings, and to restore them to their former employment with back pay plus six per cent interest and seniority retroactive to the dates of their firings.

 The full and final evidentiary hearing was held on May 18, 1973, and the Court makes the following findings of fact and conclusions of law.

 FINDINGS OF FACT

 1. The plaintiff Brenda Alderman is an adult citizen of the United States and a resident of the Commonwealth of Pennsylvania. Plaintiff Alderman was first hired by the Philadelphia Housing Authority on July 10, 1972, as a Tenant Service Representative II (N.T. pp. 5-6). More specifically, she was hired to provide social services to tenants living in the public housing managed by the Philadelphia Housing Authority (N.T. p. 9). At the time her employment with the Philadelphia Housing Authority was terminated, her salary was $9,467.00 per annum (N.T. p. 24).

 2. The plaintiff Floyd Smith is an adult citizen of the United States and a resident of the Commonwealth of Pennsylvania. Plaintiff Smith was first hired by the Philadelphia Housing Authority on April 20, 1970, as a Resident Aide Coordinator. More specifically, he was hired to work with teenagers who lived in public housing to help curb gang warfare in the areas to which he was assigned. (N.T. p. 54). Mr. Smith's starting salary with the Philadelphia Housing Authority was $8,183.00 per annum (Exhibit P-7). Mr. Smith's salary at the time his employment was terminated by the Philadelphia Housing Authority was $9,635.00 per annum. See Affidavit of Floyd Smith, Exhibit "D", in Plaintiffs' Motion for Summary Judgment.

 3. The plaintiff Jerri Williams is an adult citizen of the United States and a resident of the Commonwealth of Pennsylvania. Plaintiff Williams was first hired by the Philadelphia Housing Authority on October 26, 1971, as a Group Service Worker. More specifically, she was hired to help public housing tenants organize and run recreational, social and educational programs; a job she was doing as a volunteer before being hired by the Philadelphia Housing Authority (N.T. pp. 31-32). At the time plaintiff Williams' employment with the Philadelphia Housing Authority was terminated, her salary was $227.00 net, every two weeks (N.T. pp. 88-89).

 4. The plaintiff Kay Deming is an adult citizen of the United States and a resident of the Commonwealth of Pennsylvania. Plaintiff Deming was first hired by the Philadelphia Housing Authority on January 10, 1972 as an Area Coordinator. (N.T. pp. 69-70). More specifically, she was hired to provide coordination, training, staff development, and program supervision for the Social Services Programs run by the Philadelphia Housing Authority in their West Philadelphia projects. (N.T. p. 71). At the time plaintiff Deming's employment with the Philadelphia Housing Authority was terminated, her salary was $13,300 per annum. (N.T. p. 81).

 5. The defendant, The Philadelphia Housing Authority, was created under the provisions of the Housing Authorities Law, Act of May 28, 1937, P.L. 955, 35 P.S. § 1541 et seq. for the primary purpose of providing safe and sanitary housing to low income persons. (Answer P8).

 6. The defendant Gilbert Stein was Executive Director of the Philadelphia Housing Authority from August 21, 1972 until February 20, 1973. (N.T. p. 119).

 7. As Executive Director of the Philadelphia Housing Authority, Stein was chief executive officer of the Philadelphia Housing Authority and was in charge of all executive and administrative functions of the Philadelphia Housing Authority (Deposition of Gilbert Stein p. 4).

 8. Each of the plaintiffs was employed by the Philadelphia Housing Authority as a probationary employee before each became a permanent status employee of the Philadelphia Housing Authority (N.T. pp. 7, 34, 56, 70, 71).

 9. The plaintiffs Brenda Alderman and Jerri Williams were, themselves, public housing tenants while they were employed at the Philadelphia Housing Authority (N.T. pp. 5, 6, 30).

 10. The defendant Thomas J. Kelly is presently the Acting Executive Director of the Philadelphia Housing Authority (Answer P9).

 11. The defendants Thomas McIntosh, Carmelita Larner, Frosteena Kee, and William Rafsky are presently the members of the Philadelphia Housing Authority's Board of Directors (Answer P10). The Board of Directors is responsible for setting the broad managerial policy of the Philadelphia Housing Authority (Exhibit P-17, pp. 4-6).

 12. At the time Stein became Executive Director of the Philadelphia Housing Authority, the Philadelphia Housing Authority and the Resident Advisory Board were involved in an ongoing dispute as to whether the Resident Advisory Board properly represented tenants of the Philadelphia Housing Authority and whether it was responsive to those tenants' needs. (N.T. pp. 122-133).

 13. Shortly after he became Executive Director of the Philadelphia Housing Authority, Stein, at the request of members of the Philadelphia Housing Authority, entered into an investigation of the Resident Advisory Board to determine whether the Resident Advisory Board truly and properly represented Philadelphia Housing Authority tenants as it claimed, and whether it was responsive to the tenants' needs. (N.T. pp. 117-133).

 14. During the course of that investigation, Stein visited the Philadelphia Housing Authority's projects and personally conducted inspections and interviewed tenants (N.T. pp. 117-133).

 15. That investigation revealed that many tenants believed that the Resident Advisory Board, far from representing their needs, was in a conspiracy with the Philadelphia Housing Authority to take advantage of the tenants and to perpetuate itself for its own self-aggrandizement (N.T. pp. 122-133). This was confirmed in the mind of many tenants by the refusal of the Resident Advisory Board to deal with the dope pusher problem; the highly publicized conviction of Rose Wylie, the then head of the Resident Advisory Board, for extortion; and the fact that many Resident Advisory Board members were not Philadelphia Housing Authority tenants (N.T. pp. 122-133).

 16. As a result of that investigation, and to fully and finally determine whether the Resident Advisory Board truly represented the tenants, Stein, in early October of 1972, proposed a free and open tenant plebiscite, said plebiscite to be held in December of 1972 (N.T. p. 132).

 17. From its negotiations with the Resident Advisory Board, which had been continuing for some months prior to October of 1972, the Philadelphia Housing Authority felt certain, that the Resident Advisory Board would charge the Philadelphia Housing Authority with interfering with the tenants' election and seek to enjoin it. From at least two of Mr. Stein's personal experiences with the Resident Advisory Board, he felt certain that if the Philadelphia Housing Authority employees did campaign against the Resident Advisory Board, violence would erupt between the Philadelphia Housing Authority employees and the Resident Advisory Board advocates (N.T. pp. 122-133).

 18. In this atmosphere and in anticipation of a suit by the Resident Advisory Board, Stein, in November of 1972, directed that the following memorandum ("the memorandum") be issued to all employees:

 
TO: All Employees of The Philadelphia Housing Authority
 
FROM: Gilbert Stein, Executive Director
 
SUBJECT: Activities of PHA Personnel during the Tenants Election
 
No PHA employee shall engage in any form of interference during the upcoming tenant plebiscite to determine whether residents of PHA-managed properties want to be represented by the RAB Corporation (Resident Advisory Board of Philadelphia).
 
It is the policy of this Authority to encourage all tenants to exercise their right to choice . . . but there should be no attempt by PHA employees to discuss RAB politics with tenants, either pro or con.
 
Any employee who engages in such activity will be subject to immediate dismissal.
 
/s/ Gilbert Stein
 
I have read the above and understand that as an employee of The Philadelphia Housing Authority, I must abide by this restriction.
 
 
Employee's Signature
 
(Exhibit P-2)

 19. The purpose of the memorandum, the reasons for its issuance, and the governmental interests served by it, were as follows:

 
(a) The memorandum was issued to insure a free and open election without interference, either pro or con, by Philadelphia Housing Authority employees (N.T. pp. 131-137).
 
(b) The memorandum was issued to prevent violent confrontations of the type which had occurred on two prior occasions during disputes between the Philadelphia Housing Authority and the Resident Advisory Board (N.T. pp. 137, 148, 149).
 
(c) The memorandum was issued to protect the tenants' rights of freedom of expression and freedom of choice in representation with regard to the election (Affidavit of Gilbert Stein, N.T. pp. 131, 133-137).
 
(d) The Philadelphia Housing Authority tenants were dependent on social workers and other Philadelphia Housing Authority employees for the necessities of life, and would therefore be subject to intentional or unintentional coercion by the social workers and other Philadelphia Housing Authority employees to vote the way the tenant thought the Philadelphia Housing Authority employee wanted him or her to vote. (Affidavit of Gilbert Stein, N.T. pp. 131, 133, and 137).
 
(e) If the Philadelphia Housing Authority employees were allowed to campaign for or against the Resident Advisory Board, the tenants might erroneously come to believe, or continue to believe, that the Resident Advisory Board and the Philadelphia Housing Authority were secretly acting in concert (N.T. pp. 133-140).
 
(f) The Philadelphia Housing Authority employees might devote their time and efforts to campaigning for or against the Resident Advisory Board, rather than devoting their energies to their regular duties (N.T. p. 137).
 
(g) The memorandum was necessary to preserve the Philadelphia Housing Authority's public integrity in that, the Philadelphia Housing Authority should not, through its employees or otherwise, take or appear to take a position, either way, with reference to the Resident Advisory Board election or controversy (N.T. pp. 133-137).
 
(h) If the Philadelphia Housing Authority employees were allowed to campaign during the election, the results of the election might be set aside (N.T. p. 165).

 20. On December 5, 1972, as anticipated by the Philadelphia Housing Authority, the Resident Advisory Board and several individual Philadelphia Housing Authority tenants, not parties to this case, but rather suing on their own behalf and in a representative capacity for all Philadelphia Housing Authority tenants, brought suit in this Court naming the Philadelphia Housing Authority as defendant and seeking to enjoin the upcoming election. That suit was captioned: Resident Advisory Board of Philadelphia, Inc. v. Philadelphia Housing Authority, Civil Action No. 72-2399 ("the RAB case") (N.T. pp. 134, 136). As a result of the Resident Advisory Board litigation, the election scheduled for December of 1972 was called off by the Philadelphia Housing Authority. This cancellation took place on December 11, 1972 (N.T. p. 155; Exhibit P-18), and another election was scheduled for either April or May of 1973 (N.T. p. 164).

 21. After extensive negotiations, the Philadelphia Housing Authority and the Resident Advisory Board entered into a stipulation dated December 11, 1972, approved by The Honorable Charles R. Weiner of this Court, which read in part as follows:

 
The Philadelphia Housing Authority agrees that it will not take a position on the election provided for above. This shall not prevent PHA from answering any criticisms of its personnel or policies (Exhibit D-3).

 22. In November of 1972, when the defendant Stein ordered his memorandum (P-2) circulated, he ordered his subordinate senior staff members to distribute the memorandum to all Philadelphia Housing Authority employees, to have said employees sign the memorandum, and to have the signed memorandum returned to Miss Karen Vandenhengle, who was at that time an Administrative Assistant in the Philadelphia Housing Authority personnel department (N.T. pp. 91-93, Exhibit P-17b, p. 75, Exhibit P-15).

 23. As requested by her superiors, Miss Vandenhengle maintained records of all Philadelphia Housing Authority employees who did not sign the defendant Stein's memorandum (N.T. p. 93). Her records revealed that 65 to 70 Philadelphia Housing Authority employees failed to sign Mr. Stein's memorandum and, except for the four plaintiffs in this action, all of those 65 to 70 employees are still working for the Philadelphia Housing Authority and were not dismissed from their jobs for their failure to sign the defendant Stein's memorandum (N.T. pp. 93-95).

 25. A few days prior to December 8, 1972, each of the plaintiffs -- Alderman (N.T. pp. 9-12), Williams (N.T. p. 36), Smith (N.T. p. 57), and Deming (N.T. p. 73) -- received the Stein memorandum, and each refused to sign it or return it as instructed.

 26. Although they refused to sign the memorandum (Exhibit P-2), none of the plaintiffs, in fact, ever interfered in the Resident Advisory Board election referred to in the memorandum, nor did any of the plaintiffs, in fact, ever discuss the election or Resident Advisory Board politics, pro or con, with public housing tenants prior to their dismissal (Alderman, N.T. pp. 12-13), (Williams, N.T. pp. 43-44 (Smith, N.T. pp. 63-64), (Deming, N.T. pp. 79-80). See also N.T. pp. 147-148.

 27. The plaintiff Kay Deming responded to Stein's memorandum by setting down in a lengthy letter, delivered to Miss Vandenhengle, her reasons why she would not sign the memorandum (N.T. pp. 73-74, Exhibit P-12). However, she never received a response to that letter (N.T. p. 74).

 28. On December 19, 1972, eight days after the Resident Advisory Board election was called off, Kay Deming was called into the office of the personnel director and told that she was fired (N.T. p. 76, Exhibit P-13). The defendant Stein later told Miss Deming that she was fired for failing to sign the memorandum in question (N.T. pp. 77-78, 138).

 29. None of the other three plaintiffs received any word from the Philadelphia Housing Authority about their failure to sign the memorandum (Exhibit P-2), until they were telephoned on December 27, 1972 and told to report to the office of Natalie Danowsky, the Director of Social Services. At the time of the phone call, each of the plaintiffs were on the job at the Philadelphia Housing Authority, except for Jerri Williams, who was at home on annual leave (N.T. pp. 37-39). When each plaintiff arrived to speak to Miss Danowsky, they were each handed a letter advising them that they had failed to sign the memorandum and that they must sign it or be fired (Alderman, N.T. pp. 14, 18-19, Exhibit P-3), (Williams, N.T. pp. 37-39), (Smith, N.T. pp. 58-59, Exhibit P-8). In addition, the letter stated that each of the plaintiffs would be placed on three months probation even if they did sign the memorandum (Exhibits P-3 and P-8).

 30. Brenda Alderman made repeated attempts to talk with the defendant Gilbert Stein before the December 29, 1972 deadline, but she was unsuccessful. She believed that under certain conditions, she could have signed the memorandum. Miss Alderman was eventually able to speak to the defendant Stein on January 4, 1973, about her dismissal, but he refused to discuss the matter with her (N.T. p. 22). On January 5, 1973, she received notice that she had been terminated from her job as of December 27, 1972 (N.T. pp. 20-21, Exhibit P-4). The plaintiff Brenda Alderman was dismissed from her job because she would not sign Mr. Stein's memorandum (N.T. pp. 22, 138, Exhibit P-5).

 31. The plaintiff Jerri Williams assumed that she would be fired as of December 29, 1972 if she refused to sign the memorandum. She heard nothing further from the Philadelphia Housing Authority until, by phone, in January, she made arrangements to pick up her final paycheck (N.T. 40-41). In fact, Mrs. Williams was dismissed from her job at the Philadelphia Housing Authority as of December 29, 1972, because she failed to sign the memorandum (N.T. pp. 40-41, 138, Exhibit P-6).

 33. On May 9, 1973, this Court, through the Honorable Charles R. Weiner, entered an order in the Resident Advisory Board case which, in part, enjoined the Philadelphia Housing Authority and its employees from uttering any written or oral statement regarding its opinion or preference in the upcoming Resident ...


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