The opinion of the court was delivered by: Magistrate Judge Blewit
On December 6, 2004, Plaintiff, Maureen L. Sterner, through counsel, filed thiscivil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1). Jurisdiction of this Court is found at 28 U.S.C. §§ 1331 & 1343(a). The Plaintiff advanced two federal counts, Count One under the First Amendment and the Fourteenth Amendment of the Constitution against the two individual Defendants, and Count Two a Monell municipal liability claim against the Defendant Township. Count Three asserts a state law claim against the Defendant Township for violation of the Pennsylvania Sunshine Act.*fn1 Plaintiff paid the requisite filing fee. Named as Defendants are the following: Tunkhannock Township; Francis A. Altemose, II; and Jim Sterrett. Both individual
Defendants are members of the Defendant Township's Board of Supervisors. (Id., p. 1).*fn2 Following service of the Summons and Complaint, all of the Defendants jointly filed an Answer to the Complaint with Affirmative Defenses on January 10, 2005. (Doc. 6). Following discovery, Defendants jointly moved for summary judgment on November 30, 2005. (Doc. 18). Defendants' Summary Judgment Motion has been briefed by the parties, including statements of material facts ("SMF"), and exhibits have been submitted by both parties. (Docs. 19-23, 27, 28, 30, 31, 32). Defendants' joint Motion for Summary Judgment is ripe for disposition.*fn3
II. Motion for Summary Judgment Standard
A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56( c). An issue of fact is "'genuine' only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A fact is "material" if proof of its existence or nonexistence could affect the outcome of the action pursuant to the governing law. Anderson, 477 U.S. at 248. "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F. 3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022 (1994).
The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 314, 320 (E.D. Pa. 1982), aff'd mem. 725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions, answers to interrogatories and admissions on file" designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the non-movant's allegations as true and resolve any conflicts in his favor. Id., quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976) cert. denied, 429 U.S. 1038 (1977).
Under Rule56 summary judgment must be entered where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celetox Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III. Section 1983 Standard
In a § 1983 civil rights action, the Plaintiff must prove the following two essential elements:
(1) that the conduct complained of was committed by a person acting under color of state law; and
(2) that the conduct complained of deprived the Plaintiff of rights, privileges or immunities secured by the law or the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527 (1981); Kost v. Kozakiewicz, 1 F. 3d 176, 184 (3d Cir. 1993).*fn4 See also Holocheck v. Luzerne County Head Start, Inc., 385 F. Supp. 2d 491, 498-499 (M. D. Pa.).
It is well established that personal liability under section 1983 cannot be imposed upon a state official based on a theory of respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 1546 F.2d 1077, 1082 (3d Cir. 1976); Parratt, supra. It is also well settled in the Third Circuit that personal involvement of defendants in alleged constitutional deprivations is a requirement in a § 1983 case and that a complaint must allege such personal involvement. Id. Each named defendant must be shown, through the complaint's allegations, to have been personally involved in the events or occurrences upon which Plaintiff's claims are based. Id. As the Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998):
A defendant in a civil rights action must have personal involvement in the alleged wrongs . . . . [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity. (Citations omitted).
A civil rights complaint must state time, place, and responsible persons. Id. Courts have also held that an allegation seeking to impose liability on a defendant based on supervisory status, without more, will not subject the official to section 1983 liability. See Rode, 845 F.2d at 1208. With these principles in mind, the Defendants' Motion for Summary Judgment will be discussed.
IV. Allegations of Complaint
In Count One, Plaintiff asserts First Amendment claims, alleging that she was not reappointed as Township secretary/treasurer in January 2004 as a result of retaliation for her exercise of her free speech right and free association right with respect to her support in 2001 for Tom Delese, who opposed Defendant Altemose for the position of Township Supervisor, and with respect to her participation in a subsequent legal challenge to the election of Altemose in November 2001. In Count Two, Plaintiff alleges that the decision to terminate her in retaliation for the exercise of her First Amendment rights was officially adopted and promulgated by Defendant Township's officers acting as Township supervisors. (Doc. 1, ¶ 32.). Count Two is a municipal liability claim under § 1983 against the Defendant Township. See Monell v. Dept. of Soc. Servs., NYC, 436 U.S. 658 (1978). As stated, in Count Three, Plaintiff alleges that the Defendant Township violated the state Sunshine Act and violated Township ordinances. As relief, Plaintiff seeks both compensatory and punitive damages.*fn5
However, to the extent that Plaintiff is deemed as suing Defendants Altemose and Sterrett in their official capacities as Township Supervisors, i.e. alleging that these Defendants were acting within the scope of their employment as Township Supervisors (Doc. 1, ¶'s 3.-4.), we find that Plaintiff's damages claim against them in their official capacities should be dismissed. See Carlton, supra * 8 ("actions against government employees in their official capacities 'generally represent only another way of pleading an action against an entity of which an officer is an agent'") (citation omitted); Douris v. Schweiker, 229 F.Supp2d 391, 400 (E.D. Pa. 2002); Dill v. Com. of PA, 3F.Supp.2d 583, 587 (E.D. Pa. 1998). Plaintiff's claims against the individual Defendant Supervisors under § 1983 in their official capacities are, in effect, suits against the Defendant Township.*fn6 Since the Township has been named as a Defendant herein, we see no need for official capacity claims against Supervisor Altemose and Supervisor Sterrett. See Kenny v. Whitpain Twp., 1996 WL 445352 *2 (E.D. Pa.).
As stated, the Plaintiff asserts one federal count against the individual Defendants. As her first count, under § 1983, the Plaintiff raises violations of the First Amendment of the United States Constitution, essentially claiming that her termination from her Township job by Defendants was solely motivated by her exercise of her First Amendment free speech and free association rights to support a candidate who ran against Defendant Altemose for political office, namely Township Supervisor, and due to her participation in the election challenge to Defendant Altemose. Plaintiff avers that "[o]n January 5, 2004, Defendants intentionally, purposefully terminated Plaintiff's employment [as Township secretary/treasurer] solely in retaliation against her for exercising her First Amendment rights to Free Speech and Association, ... . " (Doc. 1, ¶ 23.).*fn7 As relief, the Plaintiff seeks monetary and punitive damages against the individual Defendants, including damages for lost past wages and earnings, loss of future income, loss of benefits, loss of earning capacity, and loss of reputation. (Doc. 1, ¶'s 27.-29.).
The undisputed material facts, as viewed in a light most favorable to the Plaintiff,*fn8 are as follows:
Plaintiff began her employment with Defendant Township in 1995 as a clerk. Subsequently, Plaintiff became Township Secretary/Treasurer. Plaintiff remained employed by Defendant Township through January 2004. The duties of Township Secretary/Treasurer are contained in the Township Personnel Policy. (Doc. 23, Ex. 3, Att. 8). The Personnel Policy applied to all appointees and employees of the Township. The Pennsylvania Township Code is found at 53 P.S. § 65101, et seq.
In 2001, the Township Supervisors were Patricia Moore, William Bourke and Tom Delese. At all relevant times, all elected officials in Defendant Township were Republicans. In May 2001, during the Republican primary election, Defendant Altemose ran against Tom Delese to be the Republican candidate for Township Supervisor in the November 2001 general election. Defendant Altemose defeated Delese in the 2001 Republican primary in Defendant Township. Delese began a write-in candidacy for the general election for the Township Supervisor position against Defendant Altemose and the Democratic candidate. Defendant Altemose became aware that Delese was running a write-in campaign for Supervisor in the November 2001 general election. Altemose did not identify Plaintiff as a major supporter of the write-in campaign who was in Delese's inner circle. (Doc. 23, Ex. 3, p. 17).
After the general election for Township Supervisor, in which Altemose was elected, he became aware that a lawsuit challenging the validity of the election was filed in state court in Monroe County, Pennsylvania. Altemose stated that he recognized Plaintiff's name as an individual who signed a verification to the Delese election challenge petition to the November 2001 Township Supervisor general election. He characterized various individuals who signed the verification as supporters, opponents or neutral, and he stated that Plaintiff was an opponent. Altemose indicated that Plaintiff was a political opponent of his, and stated that "she did not campaign for Tommy [Delese], but they were very close friends." He stated that based on this close friendship, "I would assume that she [Plaintiff] would be helping Tommy, by voting for him." (Id., p. 49).
The election challenge petition to the 2001 Township Supervisor election was later withdrawn. In January 2002, Altemose was sworn in as a Township Supervisor. The other two Supervisors were Moore and Bourke. They were all Republicans. Moore avers that Altemose was the minority Supervisor. Altemose was at the Township reorganizational meeting in January 2002. At this meeting, Altemsoe abstained from voting for Township appointees including Plaintiff. Altemose testified that he abstained because he "was not happy with the current direction that the Township was going into. And Everyone works as a whole in the township. ... Everyone working hand in hand with everyone else towards a common goal." (Doc. 23, Ex. 3, p. 67). Plaintiff was not singled out on Altemose's vote to abstain; his vote was for the entire list of appointees. (Id,. p. 69). Altemose testified that his vote had nothing to do with Plaintiff's performance; rather, it had to do with the policy that road maintenance in the Township was not a high priority. Specifically, Altemose testified as follows:
It has nothing to do with performance. It could have to do with priorities. Priorities are set by the board of supervisors and the secretary, slash, treasurer.
Q: Does the secretary - -
A: The secretary, slash, treasurer is one of the highest positions in the Township. She assisted the supervisors in making policy. And that policy was not to have road maintenance as a high priority.
Q: Did you ever - - did Maureen Sterner ever cast a vote as a member of the board of supervisors?
A: She had [accidentally once] tried. (Id., p. 70).
But the answer to your question, once again, to make a township function effectively, every employee, every appointee, has to have a common, single set of goals to go into specific directions.
The biggest, largest change in direction that occurred in this township was road maintenance. And from what I had observed, over say years, months, what I saw at meetings, road maintenance was not a nigh priority on her list.
Q: Who determines township policy?
A: Township policy is determined by the board of supervisors, and from what I could see, Maureen participated in that. (Id., p. 71).
Altemose stated that he abstained on the vote to reappoint Plaintiff because she did not want to promote road maintenance as a priority of the Township. He stated:
You voted not to give her the job - -
Q: - - by abstaining. By abstaining, because road priority was not a - - road maintenance was not a high priority to her. And you suggested that she determined that township policy prior to your vote.
I want to know specifically what you observed that led you to the conclusion that Maureen Sterner was against prioritizing road maintenance for the Township in her role as treasurer - -secretary-treasurer.
A: General observations of the person. We are all relatively consistent in what we think is important in our lives. You follow what person wants to do, wants to promote. And I never saw road maintenance in something that she wanted to promote.
I saw her want to promote various activities, various activities with vigor, but I never saw any vigor in road maintenance.
Or, to go a step further, purchasing and obtaining the equipment to conduct maintenance with. That is an equal statement to the road maintenance priorities.
If you were to compare the equipment that we own today compared to the equipment that was owned at that point in time, you would see a tremendous difference in what the Township owns. That should point to you the truth in my statements that the Township today, its highest priority is road maintenance.
To continue further, the money was available at that time in the past, but it was never proposed to spend it for equipment to do serious road maintenance. (Id., pp. 72-73).
Thus, Altemose voted to abstain on Plaintiff's reappointment since he felt that her lack of promoting road maintenance as a priority stopped the Township from buying equipment necessary for road maintenance. He felt that Plaintiff did not promote the need for aggressive road maintenance, even though she, undisputedly, had no vote as Township Secretary/Treasurer. (Id., p. 74).
Prior to January 2002, Tom Delese was a Township Supervisor as well as the Road Master.
Altemose disagreed with Delese's position on purchasing equipment and with his votes on such purchases. Plaintiff did not have the right to vote on any equipment purchases. She could lobby the Township Supervisors as to what she believed the Township needed, as could any other citizen of the Township. Altemose stated that Plaintiff never exercised her right to lobby for road maintenance. Altemose testified that Plaintiff was not a Township employee; rather she was an appointee of the Township, and as such, she had to be reappointed to her position every January by the Supervisors, unlike employees. (Id., p. 76).
During 2002, Altemose stated that he evaluated Plaintiff's performance and found as follows:
In that first year, anything that strikes you about her performance was particularly good.
A: Treasurer, good. Secretary, that was good. As far as being a team leader in the office and distributing and empowering the other employees, fair. As far as a team player in the relationship with the Department of Public Works officials, very bad. It was a very bad relationship.
Q: Empowering other employees in the office, what does that mean?
A: Well, I'll tell you exactly what that means. That means a leadership style. There's many different types of leadership styles.
What used to exist here is you had a center figure, which was Maureen. She was the one that made the high-end decisions on the entire office staff. She directed the assistant, with not that much doing on her own or what to do, the zoning officer, the sewage enforcement officer, the assistant zoning, assistant sewage enforcement officer. Those people around her, she essentially made the high-end decisions for them.
That type of management I do not like. What you have to have in a management structure is you have to be able to have all of the people around you making high-end decisions but still review them to make sure nothing is done incorrectly.
A: That is my statement there.
Q: Are you telling me that you personally believe that she supervised the zoning officer?
A: On high-end things, yes. (Id., pp. 84-84).
Altemose stated that while Plaintiff was not the supervisor of the zoning officer, in reality they all reported to Plaintiff. (Id.). However, Altemose stated that during the years of 2002-2003, he could not think of any high-end decisions that Plaintiff made as secretary/treasurer. (Id., p. 91).
Altemose testified about what he believed to be a problem with functionality in the way the Township office was run and stated:
Now let's - - so if you're saying as it relates to office management you cannot think of a single high-end decision she made in 2002 - -A. My memory - - my memory has come up with one right now.
A: It may have been late 2002, maybe 2003. I can't clarify the date, but I can give you a very, very large - - it was a running of almost a program. And it was between the office and between the Department of Public Works. It was over road inspections in Mountain Terrace Estates. This is when ...