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November 6, 1995


The opinion of the court was delivered by: JOYNER


 NOVEMBER 6, 1995

 The nutshell version of Christy's Amended Complaint is that he is an employee of the Pennsylvania Turnpike Commission (PTC). In early 1993, Christy applied to be promoted from Mechanic to Foreman of the Line Painting Crew. Another PTC employee named Sean Pilecki received the promotion instead of Christy. After the original complaint in this action was filed, Christy applied for and was denied a promotion to Regional Fleet Equipment Manager-East. He lost that promotion to a PTC employee named Frank Dunn and subsequently amended his complaint to reflect this occurrence.

 Christy alleges that he would have received both promotions if it were not for the fact that Pilecki and Dunn were politically sponsored employees. Christy alleges that political patronage promotions are endemic at the PTC and that this practice violates his First Amendment right to be free to politically associate or not politically associate as he chooses.

 Standard of Review

 In considering a motion for summary judgment, a court must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).


 Joint Defendants contend that summary judgment should be granted for two reasons; first, that they are entitled to judgment as a matter of law; second, that they are entitled to qualified immunity from suit.

 1. First Amendment

 Christy brings his First Amendment claims under the Supreme Court's ruling in Rutan v. Republican Party, 497 U.S. 62, 64, 111 L. Ed. 2d 52, 110 S. Ct. 2729 (1990). This case ruled that public agencies cannot promote public employees based on their political affiliations unless the employee's work requires political allegiance. Id.; Robertson v. Fiore, 62 F.3d 596, 599 (3d Cir. 1995). Rutan was simply an extension of the standards laid down in Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) and Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980), which prohibited political discrimination in hiring, transferring and discharging public employees.

 To apply Rutan, we ask whether (1) the employee works for a public agency in a position that does not require political allegiance, (2) the employee maintained an affiliation with a political party and (3) the employee's political affiliation was a substantial or motivating factor in the adverse employment decision. Robertson, 62 F.3d at 599 (citing cases). If an employee can show those three elements, the burden shifts to the employer to show that it would have made the same employment decision anyway. Id. If the employer cannot make that showing, then the employee is entitled to a verdict in his or her favor.

 Joint Defendants concede that Christy meets the first point because neither of the positions he applied for require political allegiance. They do, however, contest the second two elements and also argue that there were legitimate reasons for not promoting Christy.

 The first issue for us, then, is whether Christy had a political affiliation. *fn3" Christy asserts that he remained politically neutral in the work-place and therefore did not receive the political support he needed. *fn4" PTC Defendants argue that an affiliation with a political party is necessary. Since Christy denies a work-place affiliation, they assert he cannot meet this second element, and summary judgment must be granted.

 We do not read Robertson so narrowly. The point of Rutan is to prevent on-the-job coercion to align oneself politically. 497 U.S. at 76. The right not to politically associate is as protected as the right to associate. Id. ; Bennis v. Gable, 823 F.2d 723, 731 (3d Cir. 1987). Christy alleges that he was not promoted because he refused to curry political favor with people such as Commissioner Brady who could ensure his promotion and that others were promoted because they did curry such favor. We find that if proven, this could state a claim under Rutan.

 PTC Defendants also argue that Christy cannot assert that he was politically neutral because he listed political activities on his resume. Christy maintains that he was not political within the work-place and did not affiliate himself politically with the right people. We find that this allegation is not inconsistent with his political activities outside of work with people other than those in power at the PTC.

 Given the above, we turn to Robertson's final element, whether Christy's political affiliation or non-affiliation was a substantial or motivating element in the PTC's employment decisions. To fully understand Christy's contentions, an understanding of the PTC's promotion process is necessary.

 Promotions in the PTC are governed by Policy Letter 65. This Policy Letter was issued in response to Rutan and is intended to guarantee merit promotions. Policy Letter 65 requires the following for making promotions. First, candidates must be solicited from the district where the opening is by posting the job description for ten days. The PTC's Human Resources Department forwards all applications to the appropriate Manager. The Manager, together with the appropriate Deputy Executive Director, selects three to six candidates to forward to the Personnel Committee.

 Christy alleges that in his case, the initial paperwork was skewed so as to ensure that the politically supported candidate appeared to have the best credentials for the promotion. He presents evidence indicating that his interviews were sham, that he was never asked questions for which answers were provided on his evaluation sheets (such as whether he had computer or supervisor experience) and that he was more qualified for the promotions than either Pilecki or Dunn. Christy also presents evidence that each level ...

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