when he notified the proper officials of potential waste in the Lehigh County budget. Accordingly, Defendants' Motion for Summary Judgment on this claim is denied.
B. Pennsylvania Whistleblowing Claim laintiff asserts that his termination violates the Pennsylvania Whistleblowing Act, 43 Pa. Cons. Stat. Ann. §§ 1421-1428 (1991) (the Act). The Act protects public employees from retaliation for making good faith reports about wrongdoing or waste to an employer or appropriate authority.
The Act defines "waste" as "conduct or omissions which result in substantial abuse, misuse, destruction or loss of funds or resources belonging to or deriving from Commonwealth or political subdivision sources." 43 Pa. Cons. Stat. Ann. § 1422.
Defendants argue that Plaintiff's communications are not covered by the Act because they do not concern waste or wrongdoing. Plaintiff's Affidavit, in contrast, avers that a half-million dollars were at stake (Mraz Affidavit P 16) and that this money was wasted due to conduct and omissions of Defendants in an effort to embarrass the County Commission. Id. P 26. Plaintiff further avers that he was fired in retaliation for informing an appropriate authority of the waste. Id. PP 44-49; Freeman v. McKellar, 795 F. Supp. 733, 741 (E.D. Pa. 1992).
This disagreement raises a question of material fact appropriate for the fact-finder to resolve. Accordingly, Defendants' Motion for Summary Judgment on this claim is denied.
C. § 1983 Claim
Plaintiff's third Count raises a claim under § 1983. Plaintiff alleges that Defendants, acting under color of law, violated his Constitutional rights to free speech and to earn a living. He asserts that the violations occurred as a result of Defendants' allegedly false and defamatory statements concerning his professional competence and personal honesty.
Defendants argue that § 1983 is not implicated. They argue that Plaintiff has not shown any defamation, nor shown a policy or custom of the government that violated § 1983.
Both Plaintiff and Defendants have provided the Court with a copy of a newspaper article that cites defendant Kachmar as stating that defendant Bausch thought that Plaintiff's management style was ineffective. This could carry a defamatory meaning. Petula v. Mellody, 138 Pa. Commw. 411, 588 A.2d 103 (1991). However, Plaintiff has not averred any facts that indicate any connection between the allegedly defamatory statements and any violation of his rights to free speech or right to earn a living. Clark v. Township of Falls, 890 F.2d 611, 619 (3d Cir. 1989); Paul v. Davis, 424 U.S. 693, 708, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976).
Accordingly, Defendants' Motion for Summary Judgment on this claim is granted.
D. Privacy Claim
Plaintiff's Fourth Count alleges that Defendants violated Plaintiff's Fourteenth Amendment right to privacy when they released confidential information about Plaintiff's discharge to "cover up the retaliatory conduct by Defendants." Amended Complaint PP 44, 45.
Defendants move for summary judgment on this claim on the grounds that they did not release confidential information and that any information that they may have released is not protected by the Fourteenth Amendment.
The right to privacy guaranteed by the Fourteenth Amendment protects some confidential information, including medical reports ( United States v. Westinghouse Elec. Corp., 638 F.2d 570 (3d Cir. 1980)) and personal papers. Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 475-58, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977); Scheetz v. The Morning Call, Inc., 946 F.2d 202, 206 (3d Cir. 1991), cert. denied, 117 L. Ed. 2d 417, 112 S. Ct. 1171 (1992). "The right to privacy extends to . . . 'the individual interest in avoiding disclosure of personal matters . . . .'" Id. (quoting Whalen v. Roe, 429 U.S. 589, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977)). The right to privacy does not extend to reputation, however. Id.
A matter that is confidential can lose some or all of its protection if it is placed in the public record or if there is no reasonable expectation in its privacy. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494-95, 43 L. Ed. 2d 328, 95 S. Ct. 1029 (1975). Publication by the state of an official act does not constitute a violation of the right to privacy. Paul v. Davis, 424 U.S. 693, 713, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976).
Plaintiff's Brief does not elaborate on the reasoning or facts behind Count Four. However, Plaintiff avers in his affidavit that Defendants released information about his termination to the press. Defendants allegedly explained the termination as the result of a clash of management styles and allegedly told various people that Plaintiff was terminated for exercising his free speech rights. Mraz Affidavit PP 47, 48.
Even taking Plaintiff's facts as true, it is impossible to find that the release of the fact of Plaintiff's termination violated his right to privacy, because Defendants merely reported an official act of Lehigh County. See Paul, 424 U.S. at 713.
Accordingly, Defendants' Motion for Summary Judgment on this claim will be granted.
E. ADEA Claim
Plaintiff alleges that Defendants violated the Age Discrimination in Employment Act, 29 U.S.C.A. §§ 621-634 (West 1985) (the ADEA) by firing him solely because of his age and with the intent and purpose of replacing him with a younger person.
The ADEA is intended to "promote employment of older persons" and prohibits firing any person on account of their age. 29 U.S.C.A. §§ 621, 623. To state a prima facie case under the ADEA, Plaintiff must show that age was a determinative, but not necessarily sole, factor in the decision to discharge. Billet v. Cigna Corp., 940 F.2d 812, 816 (3d Cir. 1991). This can be shown circumstantially, by showing that (1) Plaintiff is within a protected class, (2) that he was qualified for the position, (3) that he was dismissed despite his qualifications and (4) that he was replaced by someone sufficiently younger to permit an inference of age discrimination. Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).
Defendant moves for summary judgment on the ground that Plaintiff is not an "employee" within the protection of the ADEA. The ADEA defines an employee as any individual employed by an employer except for elected officials, or personal staff members of elected officials, or appointees with policy-making powers. 29 U.S.C.A. § 630(f).
Plaintiff denies being on the personal staff of an elected official or having policy-making powers. Mraz Affidavit PP 51-59. Plaintiff's employment status is an issue of material fact that is proper for a fact-finder to determine.
Plaintiff has also alleged sufficient facts to make a prima facie case under the ADEA. He avers that he is within a protected class, because he was fifty-five years old when fired; that he was qualified for the position given his previous experience and performance on the job; and that he was replaced by a forty year old person, sufficiently younger to permit an inference of age discrimination. Mraz Affidavit PP 1, 4-5, 15, 47, 60-62.
Because Plaintiff raises a genuine issue of material fact on the ADEA claim, Defendants' Motion for Summary Judgment on this claim is denied.
In sum, there exist genuine issues of material fact as to whether Defendants wrongfully terminated Plaintiff in retaliation for protected activity, whether Defendants violated Pennsylvania's Whistleblowing Act, and whether Defendants violated the federal Age Discrimination in Employment Act. However, Plaintiff has not raised an issue of material fact on his privacy and civil rights claims. Accordingly, Defendants are entitled to summary judgment on those claims. An appropriate Order follows.
AND NOW, this 31st day of August, 1994, upon consideration of Defendants' Motion for Summary Judgment, and all responses thereto, the Motion is hereby GRANTED in part and DENIED in part.
The Motion for Summary Judgment on Count One, the wrongful termination claim, and Count Two, the Pennsylvania Whistleblowing Act claim, of 92-6534 is DENIED. The Motion for Summary Judgment of 93-2710, the federal Age Discrimination in Employment Act is DENIED.
The Motion for Summary Judgment on Count Three, the privacy claim, and Count Four, the civil rights claim, of 92-6534 is GRANTED
BY THE COURT:
J. CURTIS JOYNER, J.
AND NOW, this 1st day of September, 1994, upon consideration of Defendants' Motion for Extension of Time, the Motion is hereby DENIED as MOOT.
BY THE COURT:
J. CURTIS JOYNER, J.