The opinion of the court was delivered by: Judge Caputo
Presently before me are Defendants' Motion for Summary Judgment (Doc. 67), Defendant James Finan's Motion for Summary Judgment Concerning Liability for Acts Prior to Being a State Actor (Doc. 72) and Plaintiffs' Motion to Strike the Declaration of Anthony Bernardi From the Summary Judgment Record (Doc. 91). For the reasons set forth below, I will grant in part and deny in part Defendants' motion (Doc. 67), deny Defendant Finan's motion (Doc. 72) and deny Plaintiffs' motion (Doc. 91). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331.
On January 8, 2004, Plaintiffs Brian Wrightson, Sharon Wrightson, Linda Poplawski and Ryan Spinello filed a Complaint (Doc. 1) against Lackawanna County's newly elected majority Commissioners Robert C. Cordaro and A.J. Munchak. Plaintiffs allege that they were discharged by the Defendants because they were involved in the most recent campaign on behalf of Defendants' opponents. Plaintiffs also moved for a Temporary Restraining Order (Doc. 3), which was granted, and subsequently, a Preliminary Injunction, which was denied. (Doc. 4.) After the preliminary injunction hearing, I dissolved the temporary restraining order on January 23, 2004, predominantly on the basis that the testimony which I heard did not convince me that the Plaintiffs were likely to succeed on the merits. (Doc. 17.)
At the preliminary injunction hearings, which ended on January 20, 2004, the following evidence was adduced and were recited in my January 23, 2004 opinion:
Prior to January 5, 2004, Plaintiffs were employed by the County. Linda Poplawski, designated as a "confidential secretary," was a legal secretary in the Solicitor's Office. Ryan Spinello was the County's Website Coordinator. Brian Wrightson was a Technical Center Manager in the Office of Information Services.*fn1 Sharon Wrightson was the Fiscal Administrative Assistant in the Coordinated Transportation System.*fn2 The Plaintiffs' salaries ranged from $20,000 to $36,000 per year.
On January 5, 2004, Ms. Poplawski, Mr. Wrightson, and Ms. Wrightson received a termination letter while at work. The bodies of the letters were identical and read: "As of the end of the workday on January 5, 2004 your position with Lackawanna County is terminated. If you require, we can outline the reasons for this action. Thank you." (Pls.' Exs. B and F.) The letters were signed by Robert C. Cordaro, Lackawanna County Commissioner. Mr. Spinello received an identical letter on January 6, 2004, via certified mail, although the letter said he was terminated effective January 5, 2004. (Pls.' Ex. D.)
Immediately preceding the Plaintiffs' termination was the swearing in of Robert C. Cordaro and A.J. Munchak as Lackawanna County Commissioners (collectively hereinafter Commissioners). Messrs. Cordaro and Munchak are both Republicans and together they constitute a majority of the three commissioners. After being elected, but before being sworn in, the Commissioners learned that the County was running a budget deficit. The deficit has steadily increased since November and is in excess of nine million dollars. In consultation with their transition team, the Commissioners decided to eliminate some County jobs, downsize some departments, and restructure other departments as one way to save County money.
The first round of job cuts occurred on January 5, 2004, and included the Plaintiffs. Also terminated on that day were approximately twenty-two policy-makers. Three days later, the Plaintiffs filed the instant motion, alleging that they were terminated for political reasons. The Plaintiffs are all registered Democrats, and all participated in campaigning on behalf of Democratic candidates Joseph Corcoran and Randy Castellani in the Lackawanna County Commissioners election. Messrs. Corcoran and Castellani's opponents in the November, 2003, election were Messrs. Cordaro and Munchak. Mr. Corcoran lost, and Messrs. Cordaro and Munchak were victorious and became the new majority party commissioners. Mr. Castellani is the minority party commissioner. Mr. Cordaro was the minority party commissioner in the prior administration.
Notwithstanding the County's budget deficit and the layoffs of Plaintiffs, the County has hired some new employees. Anthony Walters, a registered Republican, started work on January 6, 2004, as a Computer Hardware Technician in the Office of Information Services. Mr. Walters filled an existing department vacancy and is responsible for repairing County computers and printers. Brian Wrightson also repaired County computers and printers, although it was not his primary responsibility. According to David Lloyd, Director of Information Services and supervisor to both Brian Wrightson and Mr. Walters, the work being performed by Mr. Walters is different from Mr. Wrightson's responsibilities. To save money, Mr. Wrightson's position was eliminated and Mr. Lloyd will subsume any remaining duties.
The County also hired Roark Aston as an Assistant Press Secretary. Mr. Aston is a registered Republican and worked on the Cordaro/Munchak campaign. Mr. Aston started working on January 6, 2004, and he is responsible for dealing with press related matters. Mr. Aston is also responsible for updating the County's website, which was formerly the responsibility of Plaintiff Ryan Spinello. The position of Website Coordinator was eliminated to save money, and the responsibility of updating the website was transferred to a newly created department where Mr. Aston works. During the two weeks he has worked for the County, Mr. Aston has spent a total of thirty minutes on website-related matters, whereas Spinello spent approximately fifty to sixty percent of his time on website-related matters. The County also pays an outside vendor to assist with website related issues, mainly programming and other technical matters. (Id. at 2-4.)
Plaintiffs subsequently filed an Amended Complaint (Doc. 19) on February 2, 2004, adding Paul Taramelli as a Defendant and asserting claims under 42 U.S.C. § 1983 for violations of their First Amendment (Count I) and Fourteenth Amendment Due Process (Count II) claims against Cordaro, Munchak and Taramelli and for violation of their constitutional rights against Lackawanna County (Count III). Plaintiffs also asserted a claim under the Pennsylvania Sunshine Act, but that has since been withdrawn, as have claims against Taramelli in his "official capacity." (Doc. 25 at 5.) On February 2, 2004, Defendants filed a Motion to Dismiss (Doc. 20), which I denied on April 15, 2004 because I found it was premature to determine whether the remaining Defendants' conduct was legislative, entitling them to legislative immunity (Doc. 27).
Plaintiffs subsequently filed a Second Amended Complaint (Doc. 59) on November 17, 2005, where Plaintiff Sharon Wrightson added James Finan as Defendant to Count I of the Plaintiffs' claims. Thereafter, Defendants filed motions for summary judgment (Docs. 67, 72) and Plaintiff filed a motion to strike Anthony Bernadi's declaration from the summary judgment record (Doc. 91). The matters have been fully briefed and now 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." See 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) she is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERALPRACTICE AND PROCEDURE: CIVIL2D § 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 or denials taken from the pleadings. See Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 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. Defendants' Motion for Summary Judgment
a. Count I - First Amendment
Plaintiffs allege in Count I of their Second Amended Complaint that Defendants Cordaro and Munchak violated their First Amendment rights by terminating their County employment. (Doc. 59 at ¶ 32.) Plaintiff Sharon Wrightson further alleges that Defendant Finan recommended her termination to make room for Defendants' political associate. (Id. at ¶ 33.) The Supreme Court held in Elrod v. Burns that a discharge of a public employee because of his or her political affiliation is a violation of the First Amendment and, therefore, a violation of 42 U.S.C. § 1983. 427 U.S. 347, 373 (1976). The Third Circuit Court of Appeals, in line with Supreme Court precedents, developed a three-prong test in political patronage cases. Hence, in order to succeed on their claim, Plaintiffs must prove that: (1) they worked for a public agency in a position that does not require a political affiliation; (2) they maintained an affiliation or nonaffiliation with a political party; and (3) their political affiliation or nonaffiliation was a substantial or motivating factor in the adverse employment decision. Goodman v. Pa Tpk. Comm'n, 293 F.3d 655, 663-64 (3d Cir. 2002) (citations omitted). The third prong of this test requires that Plaintiffs produce sufficient evidence to show that the Defendants knew of Plaintiffs' political affiliation. Id. at 664. If the Plaintiffs can make out a prima facie case by proving these three elements, the burden then shifts to the Defendants to show, by a preponderance of the evidence, that it would have made the same decision even in the absence of the protected affiliation. Id.
In the instant case, Defendants are moving for a summary judgment because they argue that Plaintiffs cannot meet the third prong of their prima facie case. (Doc. 68 at 22.) Namely, that Plaintiffs cannot prove their termination was a result of their affiliation with the Democratic Party. In aid of their argument that there is "no legally cognizable evidence in the record that Plaintiffs were terminated for political reasons" (Id. at 23), Defendants point out that each of the Plaintiffs have stated so in their own deposition. (Id.) (quoting Sarah Wrightson Dep. 45, 46, 125; Brian Wrightson Dep. 95-97; Poplawski Dep.132-33; Spinello Dep. 57, 87). Defendants argue that the evidence shows that more Democrats were retained than were discharged. (Doc. 68 at 24.) Defendants argue that the Plaintiffs were only four (4) of over a hundred employees whose positions were eliminated due to an emergent budget crisis. (Id.) Defendants also point out that the only evidence the Plaintiffs proffered is that other active Democrats, who were similarly situated to Plaintiffs, were not terminated. (Id.)
Plaintiffs argue that Defendant Cordaro violated their First Amendment by eliminating their jobs to make room for politically favored candidates. More specifically, "Sharon Wrightson claims she was fired to make room for Aaron Sepkowski; Brian Wrightson claims he was fired to make room for Anthony Walters; Ryan Spinello claims he was fired to make room for Roark Aston; and Linda Poplawski claims she was fired to make room for Heather McClenen and Julie Verdon." (Doc. 85 at 6.) Plaintiffs argue that there is sufficient circumstantial evidence to support their First Amendment claim, five of which are outlined in their brief. In short, the Plaintiffs state that: (1) Plaintiffs were not discharged for economic reasons because there was a net increase in jobs and payroll expenditures (Id. at 10); (2) the Transition Team did not impact Defendant Cordaro's decision to discharge Plaintiffs (Id. at 11); (3) Defendant Cordaro's preliminary injunction hearing testimony is contradicted by evidence, mainly that the list he relied on to discharge Plaintiffs did not exist at the time and his reasons for hiring Plaintiff's replacements are contrary to the evidence (Id. at 12-13); ...