The opinion of the court was delivered by: LUONGO
In this action brought pursuant to 42 U.S.C. § 1983, plaintiff, George C. Clyde, the former Administrative Officer III (Manager) of the Philadelphia Office Building, contends that he was terminated from employment on account of his political affiliation in violation of his first amendment rights to freedom of political association. See Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). He also asserts that defendants' failure to grant him a hearing prior to his termination from employment violated his fourteenth amendment rights to procedural due process. See Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). Named as defendants are The Honorable Richard Thornburgh, Governor of the Commonwealth of Pennsylvania, Walter Baran, Secretary of the Commonwealth's Department of General Services, and Alvin Aaron, who was Acting Director of the Commonwealth's Bureau of Buildings and Grounds at the time plaintiff was terminated.
Presently before me is a motion for summary judgment on behalf of all defendants on the grounds that the complaint is barred by the eleventh amendment and by the statute of limitations and/or laches. In addition, defendants contend that plaintiff did not have a cognizable property interest in continued employment and that he has, therefore, failed to state a claim for violation of his rights to procedural due process.
For purposes of the instant motion the facts are relatively simple. In 1976, plaintiff was appointed to the position of Administrative Officer II of the Philadelphia State Office Building by the Democratic administration then in office. He was promoted to Administrative Officer III in November 1977. As Administrative Officer, plaintiff was charged with overseeing the maintenance and custodial work for the State Office Building in Philadelphia. On April 19, 1979, after a change to a Republican administration, Thomas J. Topolski, Deputy Secretary for Administration of the Department of General Services, telephoned plaintiff and informed him that his job was being terminated. The following day, April 20, Topolski sent plaintiff a letter confirming that he was terminated from employment effective May 3, 1979. Plaintiff received this letter April 24, 1979. (Plaintiff's Answers to Defendants' Interrogatories, No. 19, Document No. 11.) No reason for the termination was given in this letter other than the fact that the decision to terminate plaintiff was made after "a review of key personnel of the Department" had been conducted. (Defendants' Motion for Summary Judgment, Exhibit B.) On April 26, 1979, plaintiff wrote to Topolski requesting information about the review which allegedly led to his termination. Plaintiff specifically requested information such as who conducted the review and when it took place, what criteria were used, whether his personnel file had been used, etc. (Id.) On May 3, 1979, Topolski wrote to plaintiff informing him that he was being terminated because, inter alia, complaints had been received concerning the upkeep of the Philadelphia State Office Building. It is undisputed that plaintiff was not given a hearing.
During the next two years plaintiff explored various ways to secure legal redress for his termination.
He filed the instant action on May 1, 1981, seeking, inter alia, reinstatement, restoration of "full pay and benefits", and "other further legal and equitable relief as may be deemed just under the circumstances." (Complaint P 14).
The eleventh amendment, which bars suit against a state in federal court, "partakes of the nature of a jurisdictional bar." Alabama v. Pugh, 438 U.S. 781, 782 & n.1, 98 S. Ct. 3057, 3058 & n.1, 57 L. Ed. 2d 1114, quoting Edelman v. Jordan, 415 U.S. 651, 678, 94 S. Ct. 1347, 1363, 39 L. Ed. 2d 662 (1974); Savage v. Commonwealth, 475 F. Supp. 524, 528 (E.D.Pa.1979), aff'd 620 F.2d 289 (3d Cir. 1980). Accordingly, I will first consider defendants' argument that the eleventh amendment requires that their motion for summary judgment be granted.
Although by its terms the eleventh amendment applies only to the states, it is now well settled that an "action in federal court for damages or back pay against a state official acting in his official capacity is barred because such retrospective relief necessarily depletes the state treasury, Edelman v. Jordan, 415 U.S. 651 (94 S. Ct. 1347, 39 L. Ed. 2d 662) (1974); but the amendment does not bar a suit seeking declaratory or injunctive relief against the same officials, Ex parte Young, 209 U.S. 123 (28 S. Ct. 441, 52 L. Ed. 714) (1908)." Laskaris v. Thornburgh, 661 F.2d 23, 26 (3d Cir. 1981). Helfrich v. Commonwealth, 660 F.2d 88, 90 (3d Cir. 1981). In the instant case, therefore, the eleventh amendment does not bar plaintiff's claim for declaratory and injunctive relief, i.e., reinstatement. The amendment does, however, bar plaintiff's claim for back pay, accrued monetary benefits and damages from defendants in their official capacities.
Recognizing that the eleventh amendment presents a serious obstacle to his request for monetary relief from defendants in their official capacities, plaintiff now contends, in what appears to be an afterthought, that he is also seeking damages against defendants as individuals. It is well settled that "the eleventh amendment does not bar an action for damages against an official sued in his individual capacity." Laskaris v. Thornburgh, supra, 661 F.2d at 26.
The complaint does not state whether defendants are being sued in their official or individual capacities. Since plaintiff specifically requested only back pay and reinstatement, it is highly doubtful that he intended to sue defendants in their individual capacities, nevertheless, despite my doubts as to plaintiff's intention at the time he filed his complaint, "I will construe the complaint in his favor and conclude that this action is prosecuted against (defendants) in their individual capacities."
Savage v. Commonwealth, supra, 475 F. Supp. at 532. See Laskaris v. Thornburgh, supra, 661 F.2d at 26-27. Accordingly, insofar as plaintiff seeks damages against defendants as individuals, the complaint is not barred by the eleventh amendment.
Defendants' motion for summary judgment on eleventh amendment grounds will be granted only as to plaintiff's claims against them in their official capacities for back pay and damages. The motion will be denied as to the claims for declaratory and injunctive relief, and for money damages from defendants in their individual capacities.
II. Procedural Due Process
Defendants move for summary judgment on plaintiff's claim that they violated his fourteenth amendment rights to procedural due process. They contend that plaintiff did not have a property interest in continued employment cognizable under the due process clause. Whether a public employee has a property interest in continued employment must be determined by reference to state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 2077, 48 L. Ed. 2d 684 (1976); Rosenthal v. Rizzo, 555 F.2d 390, 392 (3d Cir.), cert. denied, 434 U.S. 892, 98 S. Ct. 268, 54 L. Ed. 2d 178 (1977).
Plaintiff was appointed to his position as Administrative Officer by the Governor without confirmation of the Senate. Pa.Stat.Ann. tit. 71, § 67.1(a). His position was not covered by the Pennsylvania Civil Service Act, see 71 P.S. § 741.1 et seq., and he was, therefore, an at will employee of the Commonwealth. See, e.g., Scott v. Philadelphia Parking Authority, 402 Pa. 151, 155, 166 A.2d 278 (1960); Miller v. Commonwealth of Pennsylvania Department of Transportation, 38 Pa.Cmwlth. 361, 393 A.2d 53, 54 (1978). In Pennsylvania a public employee has "no contractual entitlement to dismissals only for cause unless the legislature has expressly provided tenure for a given class of employees." Rosenthal v. Rizzo, supra, 555 F.2d at 392, citing Mahoney v. Philadelphia Housing Authority, 13 Pa.Cmwlth. 243, 320 A.2d 459 (1974), cert. denied, 419 U.S. 1122, 95 S. Ct. 806, 42 L. Ed. 2d 822 (1975). Plaintiff points to no legislative enactment granting him tenure, but he argues that a departmental personnel handbook gave him an expectation that he would be dismissed only for cause.
Plaintiff's position is untenable. Under Pennsylvania law it is well settled that, absent authority from the legislature, agencies cannot confer a property interest in continued employment on their employees. See, e.g., Banks v. Redevelopment Authority, 416 F. Supp. 72, 73 (E.D.Pa.1976), aff'd, 556 F.2d 564 (3d Cir.), cert. denied, 434 U.S. 929, 98 S. Ct. 414, 54 L. Ed. 2d 288, reh. denied, 434 U.S. 1003, 98 S. Ct. 650, 54 L. Ed. 2d 500 (1977); Pagano v. Pennsylvania State Horse Racing Commission, 50 Pa.Cmwlth. 499, 413 A.2d 44, 45 (1980); Mahoney v. Philadelphia Housing Authority, 13 Pa.Cmwlth. 243, 320 A.2d 459, 460 (1974). Miller v. Commonwealth Department of Transportation, 38 Pa.Cmwlth. 361, 393 A.2d 53 (1978), cited by plaintiff, is not to the contrary. In that case the Department of Transportation agreed that a hearing was required for disciplinary actions taken for just cause but denied that the demotion of the plaintiff was a just cause disciplinary action. The Commonwealth Court refused to accept PennDot's characterization and remanded the matter to PennDot to determine the reason for the demotion. The court did not, however, address the question whether agency regulations or policies can give rise to a constitutionally protected property interest under state law absent legislative authority, a question it expressly answered in the negative in Mahoney v. Philadelphia Housing Authority, supra. The Commonwealth Court has recently cited Mahoney with approval in Pagano v. Pennsylvania State Horse Racing Commission, supra, a 1980 case in which the court rejected plaintiff's claim of a property interest in continued employment based on an executive order. Accordingly, I do not view Miller as being contrary to well settled Pennsylvania law in this regard, and it does not compel the finding of a property interest in this case.
I have reviewed the legislative grant of powers to the Department of General Services, Pa.Stat.Ann. tit. 71, § 631.1, and there is nothing in that provision which grants the department the authority to give tenure to its appointed employees. I conclude, therefore, that plaintiff had no entitlement to continued employment and that defendants are entitled ...