also hired Elsie Hartey and Alice Rogers from former Councilman Tayoun's staff to work in his office after he was elected to the First Councilmanic District seat in addition to Mr. DeFiore. (N.T. 4/12/94, 111, 154, 159, 163-165). Inasmuch as Elsie Hartey died in 1993, Alice Rogers is the only former Tayoun employee still working for Councilman Vignola. (N.T. 4/12/94, 136, 165).
15. Alice Rogers now does constituent service work for Councilman Vignola and has received several pay raises since she began working for the councilman in January, 1992. Councilman Vignola has assured Ms. Rogers that he has no intention of terminating her from her position with his office. (N.T. 4/12/94, 154, 159-160).
16. Although Anthony DeFiore's overall job performance as a provider of constituent services was good and effective and was essentially the same under both Councilmen Tayoun and Vignola, there were occasions on which Mr. DeFiore lost his temper and used rough language with constituents. There were also occasions on which Mr. DeFiore spoke disparagingly about Councilman Vignola. (N.T. 4/12/94 42-44, 55, 72; N.T. 4/13/94, 4-5, 10-11, 12-13, 16-17, 25-26, 30-31).
17. On Friday, November 13, 1992, Councilman Vignola overheard a telephone conversation which Mr. DeFiore was having with an unknown party in the office. In the course of that conversation, Mr. Vignola heard Mr. DeFiore utter the words "fucking asshole" in such a manner that he believed that Mr. Defiore was referring to him. Although no words passed between them at that time, Mr. Vignola was further convinced that Mr. DeFiore had been referring to him by the facial expression and body language which Mr. DeFiore wore when Mr. Vignola went out of his office to confront him. (N.T. 4/12/94, 23-28).
18. After taking the weekend to consider what he had overheard Mr. DeFiore say on November 13, 1992, Mr. Vignola called Mr. DeFiore into his office at approximately 8:00 a.m. on Monday, November 16, 1992 and told him that his employment as his Director of Constituent Services was terminated immediately. In response to Mr. DeFiore's request for an explanation, Mr. Vignola did not tell or ask him about what he had overheard the preceding Friday morning, but said only that "Harvey and Marty were correct." (N.T. 4/12/94, 22-23, 27-35, 94-99).
19. Mr. Vignola did not terminate Mr. DeFiore on the basis of his prior political affiliation with James Tayoun and there is no evidence whatsoever that Mr. Vignola terminated Mr. DeFiore on the basis of his "constituent based or oriented" political philosophy. (N.T. 4/12/94, 147.)
According to the amended complaint which he filed in this action on February 18, 1993, Mr. DeFiore contends that Councilman Vignola wrongfully and unconstitutionally discharged him from his Director of Constituent Services position on November 16, 1992. Mr. Vignola, in turn, takes the position that Mr. DeFiore was at all times a policy-making, at-will employee who was terminable at any time for any or no reason whatsoever.
The law in this area is clear. While the First Amendment on its face protects neither the right of association nor the right to refrain from speech or association, the U.S. Supreme Court has declared that the right of an individual to engage in activities protected by the First Amendment--speech, assembly, petition for redress of grievances and the exercise of religion--encompasses the corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious and cultural ends. U.S. v. Frame, 885 F.2d 1119, 1130 (3rd Cir. 1989), cert. denied, 493 U.S. 1094, 110 S. Ct. 1168, 107 L. Ed. 2d 1070 (1990), citing Roberts v. United States Jaycees, 468 U.S. 609, 618, 622, 104 S. Ct. 3244, 3250, 3252, 82 L. Ed. 2d 462 (1984). However, "freedom of association", while protecting the rights of citizens to engage in "expressive" or "intimate" association, does not protect every form of association. 885 F.2d at 1131. As a general rule, though, the right to associate with the political party of one's choice is an integral part of this basic constitutional freedom. Elrod v. Burns, 427 U.S. 347, 357, 96 S. Ct. 2673, 2681, 49 L. Ed. 2d 547 (1976) citing Kusper v. Pontikes, 414 U.S. 51, 56-57, 94 S. Ct. 303, 307, 38 L. Ed. 2d 260 (1973).
Applying these basic precepts, the Supreme Court has held that the discharge of public employees solely on the basis of political patronage constitutes an impermissible infringement of the First and Fourteenth Amendment rights of those employees to freely associate with the political parties and/or individuals of their own choosing. See : Elrod at 427 U.S. 360, 96 S. Ct. at 2683. Likewise, conditioning continued employment, promotions, demotions, transfers and other hiring decisions on political patronage, belief and association is equally unconstitutional. Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S. Ct. 2729, 2739, 111 L. Ed. 2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 515-516, 100 S. Ct. 1287, 1293, 63 L. Ed. 2d 574 (1980).
This is not to say, however, that political association and beliefs can never be the basis for a hiring decision. Rather, if the government can demonstrate that it possesses an overriding interest such as would validate an encroachment on the individual employee's protected interests (e.g., preservation of the democratic process), political affiliation may be shown to be a legitimate basis upon which to premise an employment decision. See : Elrod at 427 U.S. 368, 96 S. Ct. at 2687. In other words, if it can be shown that an employee's private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State's vital interest in maintaining governmental effectiveness and efficiency. Branti, 445 U.S. at 517, 100 S. Ct. at 1294. For these reasons, the courts have held that "a nonpolicymaking, nonconfidential government employee" cannot be discharged on the sole ground of his or her political beliefs but that an employee who "acts as an advisor or formulates plans for the implementation of broad goals" may be discharged upon a proper showing. Zold v. Township of Mantua, 935 F.2d 633, 635 (3rd Cir. 1991) citing Elrod, 427 U.S. at 367-368, 375, 96 S. Ct. at 2686-2687, 2690; Brown v. Trench, 787 F.2d 167, 168 (3rd Cir. 1986).
The task of determining whether a position is one in which political affiliation is a legitimate factor to be considered when making a personnel decision is often difficult and one which requires careful scrutiny of the specific facts of each individual case. Stott v. Haworth, 916 F.2d 134, 141 (4th Cir. 1990); Ness v. Marshall, 660 F.2d 517, 520-521 (3rd Cir. 1981). To demonstrate a violation of the First Amendment in this context, plaintiff bears the burden of proving (1) that he is a public employee, (2) that he was engaged in protected conduct such as maintaining an affiliation with a particular political party, and (3) that his political affiliation was a substantial and motivating factor in the state actor's personnel decision. Albrechta v. Borough of White Haven, 810 F. Supp. 139, 145 (M.D.Pa. 1992); Asko v. Bartle, 762 F. Supp. 1229, 1231 (E.D.Pa. 1991). Thereafter, the defendant has a substantial burden of demonstrating that political affiliation is an appropriate requirement for the effective performance of the public office in question and that it has an "overriding interest" such as would validate encroachment on the employee's First Amendment rights. Burns v. County of Cambria, PA, 971 F.2d 1015, 1022 (3rd Cir. 1992) cert. denied, U.S. , 113 S. Ct. 1049, 122 L. Ed. 2d 357 (1993); Zold v. Township of Mantua, supra, at 635.
In the matter at bar, we find that the plaintiff has succeeded in demonstrating only that he was a public employee when he worked as Philadelphia City Councilman Vignola's constituent services director. While we acknowledge the testimony of Mr. DeFiore himself and Matthew Cianciulli that they considered themselves, Mr. Tayoun and the late Congressman Bill Barrett to be more "constituent-oriented" than anything else and considered Mr. Vignola to be more "media-oriented" than "constituent-oriented," this "orientation" appears to reflect that perhaps philosophical differences, rather than associational differences, existed between Mr. DeFiore and Mr. Vignola. Notwithstanding these philosophical differences, however, and by Mr. DeFiore's own testimony, he was able to work just as effectively and perform the same constituent services for Councilman Vignola that he did for Councilman Tayoun. (N.T. 4/12/94, 92-93). We thus simply cannot find from the evidence presented at trial that, at the time of his termination, Mr. DeFiore was maintaining an affiliation with a particular faction of the Philadelphia democratic party or that he was thereby engaged in constitutionally protected activity.
Moreover, even if this Court were to find that the plaintiff was engaged in constitutionally protected political activity, the record in this matter is totally devoid of any evidence that Mr. DeFiore's "constituent-oriented" philosophy played any role in his termination. To the contrary, the evidence in this matter reveals that the reason that Mr. Vignola fired Mr. DeFiore was because of the disparaging comment which he overheard Mr. DeFiore make on November 13, 1992.
In light of our findings that Mr. DeFiore has failed to meet his burden of proof with respect to his engagement in constitutionally protected activity and as to the nexus between that activity and his termination, there is no need to consider or evaluate whether symbiotic political affiliation and beliefs are a necessary or appropriate requirement for the effective performance of the job which the plaintiff heretofore held. So saying, we conclude that the plaintiff has failed to demonstrate that his First and/or Fourteenth Amendment rights were violated when he was terminated on November 16, 1992.
In addition to the constitutional claims discussed above, the plaintiff's complaint also appears to raise a claim for the common law tort of wrongful discharge.
The law of Pennsylvania, of course, is equally clear that the at-will employment doctrine is alive and well. Indeed, it is the general rule in Pennsylvania that there is no common law cause of action against an employer for termination of an at-will employment relationship. Clay v. Advanced Computer Applications, 522 Pa. 86, 559 A.2d 917, 918 (1989) citing Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). Exceptions to this rule have been recognized in only the most limited of circumstances, where discharges of at-will employees would threaten clear mandates of public policy. Id. See Also : Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990). Furthermore, even when an important public policy is involved, an employer may discharge an employee if he has separate, plausible and legitimate reasons for doing so. Burkholder v. Hutchison, 403 Pa. Super. 498, 589 A.2d 721, 723 (1991). Thus, in Pennsylvania, an employee-at-will may be terminated for any or no cause unless there is a statutory or contractual provision to the contrary. Smith v. Calgon Carbon Corp., 917 F.2d 1338, 1341 (3rd Cir. 1990), cert. denied, 499 U.S. 966, 111 S. Ct. 1597, 113 L. Ed. 2d 660 (1991); Cox v. Radiology Consulting Associates, Inc., 658 F. Supp. 264, 265 (W.D.Pa. 1987), aff'd, 835 F.2d 282 (1987). See Also : Yetter v. Ward Trucking Corp., 401 Pa. Super. 467, 585 A.2d 1022, 1025 (1991).
Applying these legal principles to the evidence produced at trial, we again can find no evidentiary support for the plaintiff's allegation that his termination constituted a violation of public policy. Again, there is no evidence that Mr. DeFiore was terminated on the basis of his affiliation with a different and distinct faction of the democratic party from that of Mr. Vignola and we cannot and do not find that his termination constituted a violation of his constitutional rights to free political association. By plaintiff's own pleading and admissions, he did not have an employment contract and, consequently, Mr. Vignola could have terminated him at any time for any reason, good or bad, or for no reason at all.
We therefore now enter the following:
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the subject matter and the parties to this action by virtue of 28 U.S.C. § 1331 and the First and Fourteenth Amendments to the United States Constitution.
2. The plaintiff, Anthony DeFiore was at all times relevant, an at-will employee in the office of Philadelphia City Councilman Joseph Vignola subject to termination at any time for any or no reason at all.
3. The plaintiff has failed to prove that the defendant terminated him from his position as Director of Constituent Services on November 16, 1992 on the basis of his political philosophy or his association with James Tayoun or any other "constituent-oriented" democrat.
4. The plaintiff has failed to prove that his right to free political association as guaranteed him under the First and Fourteenth Amendments to the United States Constitution were violated by the defendant's termination of him from his Director of Constituent Services position on November 16, 1992.
5. The defendant is entitled to the entry of judgment in his favor on all counts of the plaintiff's complaint in no amount.
An appropriate order follows.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 857 F. Supp. 439.]
AND NOW, this 12th day of July, 1994, following non-jury trial in this matter and careful consideration of the parties' proposed findings of fact and conclusions of law, and for the reasons set forth in the preceding Decision, it is hereby ORDERED that VERDICT and JUDGMENT are entered in favor of the defendant in no amount on all counts of the plaintiff's complaint.
BY THE COURT:
J. CURTIS JOYNER, J.