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Novak v. Borough of Dickson City

April 17, 2006


The opinion of the court was delivered by: Judge Caputo


Presently before the Court is Defendants' Motion for Partial Summary Judgment (Doc. 21). For the reasons set forth below, the Court will grant Defendants' motion in part and deny it in part. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331.


Ken Novack was hired by the Borough of Dickson City ("Dickson City")in 1990. (Doc. 1, ¶ 1.) In July 2003, Plaintiff became the Chief Clerk for Dickson City. (Doc. 27, Ex. E at 30.) Plaintiff's position as Chief Clerk was covered by a Collective Bargaining Agreement. (Doc. 1, ¶ 9.)

Plaintiff submitted evidence that in January 2004, following an election for the Dickson City Borough Council ("Council"), a new majority on the Council was elected. (Doc. 1, ¶¶ 19, 26.) Plaintiff further submitted evidence that this majority included Defendants Wiltshire, Gallis, Novojasky, and Bott ("new majority"). (Doc. 1, ¶ 26; Doc. 25, ¶¶ 3-6.) Within sixty days (60) of the election of the new majority, Plaintiff served two one-day suspension/layoffs, on January 16, 2004 and February 2, 2004. (Doc. 1, ¶ 27; Doc. 22, Ex. KN-9.) In addition, Plaintiff was given two weeks written notice on February 11, 2004, and was then permanently laid off/terminated on February 26, 2004. (Doc. 1, ¶ 27; Doc. 22, Ex. KN-17.) Defendants have submitted evidence that Plaintiff's suspensions/layoffs were due to a lack of work. (Doc. 22, Ex. KN-9.) Plaintiff contends that the suspensions/layoffs were due to his political patronage of the previous majority on the Council ("outgoing majority") and his open opposition to the new majority. (Doc. 27, Ex. C at 79.)

In support of his contentions, Plaintiff submitted evidence that prior to the election, on February 18, 2003, Plaintiff's wife, Sophia Novack, submitted a letter to the editor of the Scranton Times regarding the political activities in Dickson City. (Doc. 25, Ex. F.) Defendants Wiltshire, Bott, and Gallis responded to Sophia Novack's letter and mentioned Plaintiff in their response. The letter states in relevant part:

. . .Apparently Sophia Novack would like for her husband to keep his job as borough manager. He is a school director and Sophia Novack has a job at the school district. Her daughter was just hired as a policewoman in Dickson City borough. Seems like the family has a lot of local government jobs. Is Sophia Novack trying to save her husband's political appointment job? So much for "Never bite the hand that feeds you". (Doc. 25, Ex. G; Doc. 22, ¶ 8.) Further, Plaintiff submitted evidence that the Monday before the election, he ran an advertisement in the Scranton Times evidencing his support for the outgoing majority. (Doc. 27, Ex. C at 79.) Plaintiff also submitted evidence that he overheard Defendant Gallis discussing this advertisement, and that Defendant Novajosky admitted to seeing the advertisement. (Doc. 27-4 at 83; Doc. 27, Ex. E at 97.) In addition, Plaintiff submitted evidence that after midnight on the night of the election a motorcade drove past the front of Plaintiff's home honking their horns.(Doc. 27, Ex. C at 80-81.) Plaintiff further submitted evidence that he believes he saw Defendant Wiltshire's vehicle in the motorcade. Id.

Following his permanent layoff/termination, Plaintiff filed a grievance pursuant to the Collective Bargaining Agreement. (Doc. 22, ¶¶ 33-34, Ex. KN-10; Doc. 25, ¶ 28.) The grievance was submitted to arbitration and, subsequently, decided in Plaintiff's favor. (Doc. 22, ¶ 34; Doc. 25, Ex. H.) Plaintiff was awarded back pay and it was directed that Plaintiff be reinstated. Id.

On April 4, 2005, Defendants filed a motion to dismiss Count IV of Plaintiff's complaint. (Doc. 4.) The Court granted Defendants' motion on May 27, 2005. (Doc. 14.) Then, on January 20, 2006, Defendants filed the present motion for partial summary judgment on Counts I and II of Plaintiff's complaint. (Doc. 21.) This motion is fully briefed and ripe for disposition.


Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. See id. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.

Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. See Anderson, 477 U.S. at 256-257.

The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.


1. Procedural Due Process

To establish a cause of action for a procedural due process violation, Plaintiff must first prove that a person acting under color of state law deprived him of a protected property interest; and second, he must show that the procedures available to him failed to provide him with due process of law. See, Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).

a. Protected Property Interest

To have a property interest in a job, a person must have a legitimate entitlement to such continued employment. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). State law determines whether such a property right exists. Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005). Further, the Court of Appeals for the Third Circuit has held that a "for-cause" termination provision in an employment agreement may establish a protected property interest. Linan-Faye Constr. Co. v. Housing Auth., 49 F.3d 915, 932 (3d Cir. 1995).

Defendants argue that the law is not clearly established as to whether Plaintiff's suspension, rather than termination, infringed a protected property interest. In support of their argument Defendants cite Gilbert v. Homar, 520 U.S. 924 (1997), in which the United States Supreme Court stated:

[W]e have not had occasion to decide whether the protections of the Due Process Clause extend to discipline of tenured public employees short of termination. Petitioners, however, do not contest this preliminary point, and so without deciding it we will, like the District Court, 'assum[e] that the suspension infringed a protected property interest,'. . .and ...

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