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Smith v. City of Allentown

March 9, 2009


The opinion of the court was delivered by: Goldberg, J.


This case arises from Plaintiff, Thomas Smith's, allegations that Defendants, the City of Allentown (hereinafter "City") and the Mayor, Ed Pawlowski, discharged him from his employment in violation of the Age Discrimination in Employment Act (hereinafter "ADEA"). 29 U.S.C. § 631 et seq. Plaintiff also claims that he was wrongfully discharged as a result of political discrimination in violation of his First Amendment rights pursuant to 42 U.S.C. § 1983 (hereinafter "Section 1983").

Before me is Defendants' Motion for Summary Judgment which seeks dismissal of the age discrimination claim based upon Plaintiff's alleged failure to produce sufficient evidence establishing that his discharge was pretextual. Defendants also seek dismissal of the Section 1983 action and assert that Plaintiff has failed to make out a prima facie case of political discrimination.For the reasons that follow, I grant Defendants' motion.


Plaintiff was employed on a full-time basis with the Defendant, City of Allentown, from October 1979, until October 19, 2007. (Defendants' Exhibit J, September 20, 200[6] correspondence). In 2002, after holding several positions with the City, Plaintiff was promoted to Superintendent of the Recreation Department by William Heydt, who was Mayor of Allentown at the time. As Superintendent of Recreation, Plaintiff was responsible for overseeing seven (7) full-time employees as well as one hundred fifty (150) to two hundred (200) part-time employees. (Smith Depo., pp. 40-47)

In 2002,Roy Afflerbach succeeded Heydt as mayor, and proposed eliminating the Recreation Department due to budget constraints. Plaintiff approached Afflerbach with a proposal to save the department and, after discussion, Afflerbach agreed to retain it with reduced staff and funding. In early 2002, Afflerbach appointed Defendant, Ed Pawlowski, as Director of Community and Economic Development, which supervised Plaintiff and the Recreation Department. (Pawlowski Depo., pp. 7, 11; Smith Depo., pp. 47-49).

On April 8, 2002, Pawlowski sent Plaintiff a memorandum outlining changes he expected to be implemented in the Recreation Department, including weekly meetings with the City golf course staff, updates on managing the golf course, updates on an event called Sportsfest*fn1 and the development of new recreation programs in several of the City's neighborhoods. (Defendants' Exhibit C, April 8, 2002, memorandum). On June 29, 2005, Plaintiff received a performance improvement plan from Lauren Giguere, who succeeded Pawlowksi as Director of Community and Economic Development. This planadded additional changes that were to occur in the Recreation Department. (Defendants' Exhibit D, June 29, 2005, verbal warning).

In 2005, Pawlowski ran as the Democratic candidate for mayor, opposing Republican and former Mayor William Heydt, who, as set forth supra, originally appointed Plaintiff to the position of Superintendent of Recreation. During both the primary and general election campaigns, Plaintiff placed signs in his yard promoting Heydt. While both Pawlowski and Heydt campaigned in Plaintiff's neighborhood, there is no evidence of record that either were in close vicinity to his house to observe these signs. (Smith Depo., pp. 15, 21-24).

In the summer before the November 2005 mayoral election, a James Spang approached Plaintiff during the 2005 Sportsfest, which Plaintiff had organized. Spang was a Democratic state committeeman, a supporter of Pawlowski and Plaintiff's friend. Spang advised Plaintiff that he believed that the Sportsfest event featured and favored Heydt to the exclusion of Pawlowski. Spang emphasized that he did not want Plaintiff to be thought of as using his public position as Recreation Director to support a particular political candidate.Plaintiff alleges that during this conversation Spang also told him that he had been advised that Pawlowski viewed Plaintiff as a "political enemy." In deposition, Spang denied making this statement. (Spang Depo., pp. 8, 19, 24-25, 37-49; Smith Depo., p. 26).

Pawlowski won the mayoral election in November 2005, and in May 2006, hired Francis Dougherty as Director of Community and Economic Development. During his first month as Director, Dougherty conducted a review of Plaintiff's work and concluded that he had failed to meet the goals set forth by the prior Director of Community Development.Specifically, Dougherty concluded that Plaintiff had, inter alia, mismanaged the municipal golf course, not implemented new programs directed at inner city, minority youth, mismanaged city pool repair and not controlled the Halloween parade. Based on his review, Dougherty recommended to Pawlowski that Plaintiff be required to resign or retire because he lacked "the skill sets" necessary to perform his job. Pawlowski approved this recommendation. (Pawlowski Depo., pp. 8-9, 27, 36; Dougherty Depo., pp. 11, 22-23, 29, 33-42, 51).

Allentown's Human Resources Director, Sonya Stephens, was not consulted in this review process or the ultimate employment decision. Stephens testified at deposition that she believed Plaintiff's personnel file did not support his mandatory resignation/retirement. Nevertheless, on July 24, 2006, Dougherty briefly met with Plaintiff and advised that he had the option of resigning or retiring for failing to address the concerns set forth in prior performance improvement plans. Plaintiff claims that Dougherty referenced both his birthday and anniversary date with the City during the termination meeting. Specifically, Plaintiff claims Dougherty stated, "I see you have a significant birthday [55] coming up and an anniversary date. And the mayor would like your resignation by your birthday, no later than your anniversary date." When asked at deposition whether he had any information that Pawlowski had, in any way, considered his age in deciding to ask for his resignation, Plaintiff responded, "No, I do not." (Stephens Depo., pp. 26-30; Dougherty Depo., pp. 44, 49, 57; Smith Depo., pp. 192, 208).

On July 27, 2006, Plaintiff wrote to Pawlowski requesting that he reconsider his decision. (Defendants' Exhibit I, July 27, 2006, correspondence). Plaintiff outlined the various activities and improvements he had successfully implemented and set forth instances where City employees had prevented him from satisfactorily meeting stated goals. Id. Plaintiff also noted that he heard through the grapevine that Pawlowski viewed him as a political enemy and that "I've been told that you believe I worked against you in the last election...." Id. On August 8, 2006, Pawlowski sent Plaintiff a letter stating he never viewed him as a political enemy and that he had not changed his decision regarding Plaintiff's resignation/retirement. (Plaintiff's Exhibit 6, August 8, 2006, correspondence). At deposition, Pawlowski denied knowing Plaintiff's political affiliation. (Pawlowski Depo., pp. 37-38).

On September 20, 2006, Plaintiff wrote to Human Resources advising that his retirement from the City of Allentown would be effective October 19, 2006. (Defendants' Exhibit J, September 20, 200[6] correspondence). This retirement date marked Plaintiff's twenty-seventh (27th) anniversary with the City, which Plaintiff acknowledged allowed him to maximize his retirement benefits. Plaintiff, who was fifty-five (55) years old at the time of his retirement, was replaced by Carl Bruno, who was thirty-six (36) years old. Bruno resigned six (6) months later. Kevin Easterling, who was forty-one (41) years old at the time and a long time ...

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