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Delhagen v. McDowell

March 24, 2010

HEATHER DELHAGEN, PLAINTIFF
v.
KEN MCDOWELL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DEFENDANT



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

Plaintiff Heather Delhagen is the former audit supervisor for the Lackawanna County Controller's Office. Delhagen was fired from this position on January 7, 2008 by Defendant Ken McDowell, the same day that McDowell was sworn into office as the Lackawanna County Controller. Delhagen filed this civil rights case alleging that McDowell's actions violated her rights protected by the First and Fourteenth Amendments to the United States Constitution. Before the Court is McDowell's motion for summary judgment. (Dkt. Entry 21).*fn1 For the reasons that follow, McDowell's motion will be granted in part and denied in part.

I. Background

A. Facts

In June of 2005, Heather Delhagen began working as audit supervisor in the Lackawanna County Controller's Office under then-Controller John Mellow. Her job was to perform audits of various Lackawanna County agencies as determined by Mellow. Delhagen had no say over which offices were audited, and, despite her title, performed no supervisory responsibilities in the office. (Heather Delhagen Dep., Dkt. Entry 23-2 at 34-35.)*fn2

In January of 2007, Delhagen was directed by then-Controller Mellow to audit the Single Tax Office. (Id. at 48.) At the time of the audit, Defendant Ken McDowell was the elected tax collector in charge of the Single Tax Office, and had announced that he was a candidate for the office of Controller in the Democratic primary election, which made him an opponent of then-Controller Mellow, also a Democrat.

When the audit began, Delhagen had a meeting with McDowell to inform him of how the audit would be conducted. Delhagen testified at her deposition that McDowell was not happy that she was there, and McDowell stated "it was ironic that [Delhagen] should be there to audit him at a time that he was running against [her] boss." (Id.at 49:10-11.) The audit of the Single Tax Office lasted more than six months. At the end of the audit, Delhagen prepared an audit report, (Audit, Dkt. Entry 23-3 at 6-27), and presented it at an exit conference on July 27, 2007.

Defendant McDowell, his attorney Dave Rinaldi, then-Controller Mellow, as well as others were at the exit conference. Delhagen presented the findings and recommendations of the audit. The audit discovered almost $368,000 in overpayments were being held by the Single Tax Office dating as far back at 1998. (Id. at 14-16; Sep. 3, 2007 article in Scranton Times-Tribune, Dkt. Entry 23-3 at 56-57.) According to Delhagen, McDowell appeared frustrated during the conference, and stated rhetorically, "[w]ell, when I'm Controller," which Delhagen took to mean that he did not like the findings of the audit. (Delhagen Dep., Dkt. Entry 23-2 at 57.) However, she acknowledged in her deposition that she does not know how McDowell felt about the audit. (Id. at 72.)

The audit of the Single Tax Office attracted significant local media attention. At least five articles appeared in the Scranton Times-Tribune, three of which either quoted or attributed information to Delhagen. (See Scranton Times Tribune articles, Dkt. Entry 23-3 at 54-61.) Delhagen testified at her deposition that she spoke to reporters from the Scranton Times-Tribune on only one occasion, and then only at the request of then-Controller Mellow.

(Delhagen Dep., Dkt. Entry 23-2 at 163.) Three of the five articles appeared in the newspaper prior to McDowell's election as Controller and Delhagen's termination. All of the articles were critical of the Single Tax Office.

Other than his comments at the beginning and end of the audit, McDowell did not say anything to Delhagen that she interpreted negatively. (Delhagen Dep., Dkt. Entry 23-2 at 62.) McDowell never asked Delhagen about her political affiliation or associations. (Id. at 63-64.) At her deposition, Delhagen stated that she supported then-Controller Mellow by changing her voter registration from Republican to Democrat so that she could vote for him in the primary election. (Id. at 74.) She did not work on Mellow's campaign, but may have had a sign supporting him in her front yard. (Id. at 75.) Other than this, however, she stated that she "[does not] get involved with politics." (Id. at 75:7.)

McDowell was elected Controller in November 2007, and assumed the office on January 7, 2008. On that same day, he instructed the solicitor to meet with Delhagen and two other employees of the Controller's office -- Jack Malos, then-deputy controller and Mike Shumek, then-office manager -- "and inform them that they would no longer be employees of the [C]ontroller's [O]ffice." (Ken McDowell Dep., Dkt. Entry 25-7 at 7:12-13.) Neither McDowell nor anyone from his staff ever met with Delhagen to discuss her duties or management philosophy. (Id. at 7-8.) McDowell testified that he made the decision to terminate the employment of these individuals because "he wanted to bring in a new management team." (Id. at 8:6-7.)

McDowell testified that he made the decision to replace Delhagen because her "position of audit supervisor would perform supervisory duties and be part of the management team," (id. at 23:23-25), and that during the campaign he had made a decision "that it was time for a new direction in the [C]ontroller's [O]ffice and a new management team." (Id. at 23:10-12.) McDowell testified at his deposition that he does not know "one way or the other" whether Delhagen was a supporter of his campaign for Controller. (Id. at 31:8.)

McDowell hired replacements for each of the individuals whom he terminated. McDowell testified at his deposition that he instructed his transition team to place blind advertisements in the Scranton Times-Tribune. (Id. at 9.) Both members of his transition team were actively involved in his campaign for Controller. Specifically, the transition team selected his deputy controller. (Id.) Once that person was hired, he selected the person hired to replace Delhagen from the top three people in consideration for the position. (Id.) McDowell testified that he did not meet with any of the individuals before they were selected. (Id.) The interviews and selections for these positions occurred in December of 2007, one month before McDowell took office. (Id. at 12.)

Ultimately, Andrew Marichak was chosen to replace Delhagen as audit supervisor. He was an acquaintance of McDowell, but he was not a part of McDowell's campaign and McDowell is unaware of whether Marichak supported him. (Id. at 9-10.) Marichak and his family own a bar called "E Street" that McDowell frequented both before and after he became Controller. (Id. at 71.) While patronizing "E Street," McDowell would have conversations with Marichak while Marichak bartended, although the record is devoid of any indication about either the frequency or content of these conversations. Marichak began his employment as audit supervisor on January 8, 2008 -- one day after McDowell took office and Delhagen was fired. (Id. at 12.)

Following her termination, Delhagen received a letter from the Controller's solicitor. The body of the letter stated:

This letter will confirm our conversation this morning in which you were informed that you were being separated from employment at the Lackawanna County Controller's Office as of the close of business today. I want to once again apologize for the short notice you were given but the former Controller refused to allow contact with you while he remained in office.

I want to thank you for your dedication during your years of service to Lackawanna County Government and its citizens. I want to restate that your separation is not for cause but rather because the new administration desires to have the supervisory and management positions held by individuals with which the Controller is familiar and who share his management philosophy. As you can appreciate the position you formerly held is responsible for setting office policy, confidential communications and staff management.

(Jan. 7, 2008 Ltr. from David Rinaldi, Esq. to Heather Delhagen, Dkt. Entry 25-2.)

When asked during his deposition what office policies Delhagen set, McDowell stated that he "could not say . . . one way or the other" whether she set policy or not. (McDowell Dep., Dkt. Entry 25-7 at 35:23-24.) When asked what confidential communications that Delhagen handled while at the Controller's office, McDowell could not be any more specific than that she "would come across information of a confidential nature." (Id. at 43.)

For her part, Delhagen testified at her deposition that her position was not supervisory and that she did not believe that she had to be politically affiliated with her boss in order to perform her job. (Delhagen Dep., Dkt Entry 23-2 at 163-64, 166.) Furthermore, Delhagen testified that she did not have any say in who was audited, but that she simply audited those agencies that she was instructed to audit by then-Controller Mellow. (Id. at 35.)

While employed at the Controller's Office, Delhagen was a member of the union and paid union dues. (Id. at 88.) After she was terminated, Delhagen contacted her union steward, Debbie Langman, and requested that she file a grievance. (Id.) On January 10, 2008, Langman filed a grievance for Delhagen. Specifically, Langman complained that Delhagen was not given bumping rights, was not given a written notice of the reasons for her termination at the time of her discharge, was fired without cause, and was denied the opportunity to have her union representative present at the time of her termination. (See SEIU 668 General Grievance form, Dkt. Entry 25-3.)

On February 20, 2008, Lackawanna County responded to Delhagen's grievance as follows:

With regard to the grievance on behalf of Ms. Delhagen, as Audit Supervisor, her position is . . . outside the scope of the certified bargaining unit, and, therefore, the grievance is not substantively arbitrable. In any event, even if the grievant has standing, the County fully complied with all provisions of the labor contract, including Article 9 and Article 23. Ms. Delhagen's position was eliminated and as such she was laid off in accordance with seniority. As the least senior employee in the Controller's Office, Ms. Delhagen lacks any bumping rights under the labor contract. (Feb. 20, 2008 Ltr. from M. Elkins to J. Yanchulis, Dkt. Entry 25-4 at 1.)*fn3 It is unclear from the record what happened with this grievance, except that on July 6, 2009, counsel for Delhagen sent a letter to the union requesting that the union continue to pursue the grievance. (See Jul. 6, 2009 Ltr. from C. Pollick to K. Yost, Dkt. Entry 23-4.) In her deposition, Delhagen testified that she is "in arbitration," but that she does not have a date for the arbitration hearing. (Delhagen Dep., Dkt. Entry 23-2 at 90:21; 102.)

For his part, McDowell testified that he was not aware that Delhagen was a member of the union until his transition team heard this when they terminated her employment. (McDowell Dep., Dkt. Entry 25-7 at 46.) When he received Delhagen's grievance, he consulted his solicitor and determined that Delhagen's position was a management position that was not entitled to the protection afforded in the collective bargaining agreement. (Id. at 48.)

Delhagen testified in her deposition that she believes that she was terminated because she supported then-Controller Mellow and followed through with the audit of the Single Tax Office. (Delhagen Dep., Dkt. Entry 23-2 at 80.) After being terminated, Delhagen collected unemployment compensation until May of 2008, when ...


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