The opinion of the court was delivered by: Richard P. Conaboy United States District Judge
(Magistrate Judge Prince)
Here we consider Magistrate Judge William T. Prince's Report and Recommendation (Doc. 83) concerning Defendants' Motion for Summary Judgment (Doc. 69). With their motion, Defendants seek summary judgment in their favor on all claims remaining in Plaintiff's Second Amended Complaint (Doc. 42). (Docs. 69, 69-2.) Magistrate Judge Prince recommends that the Court deny the motion. (Doc. 83 at 28.) Defendants filed objections to the Report and Recommendation, identifying five specific bases of error: 1) Defendant Kitchen is properly dismissed from this action; 2) Plaintiff's Due Process rights were not violated; 3) there is no genuine issue of material fact as to whether Plaintiff's political affiliation was a substantial or motivating factor in the adverse employment decision; 4) there is no genuine issue of material fact as to whether any misrepresentations were made to Plaintiff regarding the severance package; and 5) there is no genuine issue of material fact as to whether Defendants voted to accept Plaintiff's resignation and/or offer her the severance package because of her age. (Docs. 84, 85.)
Plaintiff filed a brief in opposition to Defendants' objections on August 12, 2010, agreeing that Defendant Kitchen is properly dismissed from the action and asserting that genuine issues of material fact exist regarding the matters raised in Defendants' other objections. (Doc. 86 at 5-6.) Defendants did not file a reply brief and the time for doing so has passed. Therefore this matter is ripe for disposition.
For the reasons discussed below, we adopt the Report and Recommendation (Doc. 83) in part. We conclude that Defendants' Motion for Summary Judgment (Doc. 69) is properly granted in part and denied in part.
Defendants do not object to the "Factual Background" set out by Magistrate Judge Prince. Therefore we adopt that factual background and repeat it here.
Viewing the facts in a light most favorable to Plaintiff reveals the following background: Plaintiff was hired as Secretary to Catawissa Borough on May 4, 1994. She alleges she performed her work in a professional and competent manner.
At an executive session of Catawissa Borough Council on April 23, 2007, a unanimous decision was made by all Council members present to offer Plaintiff a severance package, with the understanding that if she did not agree to resign on these terms, she would be terminated. On April 26, 2007, Plaintiff alleges she was informed by Defendants Linn and Reese that she would be discharged from employment if she did not resign. She further claims that she was informed that she would be provided with certain benefits, in the form of a severance package, if she resigned. Plaintiff signed the resignation agreement on May 3, 2007. Catawissa Borough Council unanimously accepted her resignation on May 7, 2007, but also unanimously agreed to disallow the severance package previously extended to her in the resignation agreement.
The Borough Secretary position was subsequently filled by Kimberly Rhoades, wife of Defendant Rhoades, who was fifteen (15) years younger than Plaintiff. Plaintiff maintains that her termination was in response to her support of another Council member for Council President over Defendant Romania as well as her non-support of Defendant Rhoades' political endeavors.
Defendants contend that Plaintiff's dismissal was attributable to her tardiness, attitude and her signing, rather than punching, timecards. Plaintiff counters that although these issues may have arisen during her tenure, there were no complaints with these issues at or around the time of her termination.
The present action followed. The claims of the second amended complaint remaining are: Counts I and VI--First and Fourteenth Amendment violations of Plaintiff's free speech and association rights; Counts II and IV--Plaintiff's procedural due process claims; Count VIII--actual fraud; Counts XI and XII--age discrimination under the ADEA; and Counts XIV-XVI--violations of the PHRA. (Doc. 83 at 3-4.)
When a magistrate judge makes a finding or ruling on a motion or issue, his determination should become that of the court unless objections are filed. See Thomas v. Arn, 474 U.S. 140, 150-53 (1985). Moreover, when no objections are filed, the district court is required only to review the record for "clear error" prior to accepting a magistrate judge's recommendation. See Cruz v. Chater, 990 F. Supp. 375, 378 (M.D. Pa. 1998). However, when objections are filed to a magistrate judge's Report and Recommendation, the district judge makes a de novo review of those portions of the report or specified proposed findings or recommendations to which objection is made. See Cippolone v. Liggett Group, Inc., 822 F.2d 335, 340 (3d Cir. 1987), cert. denied, 484 U.S. 976 (1987).
B. Summary Judgment Standard
Summary judgment is proper "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 judgment as a matter of law." See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997)(citing Fed. R. Civ. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
"An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson, 477 U.S. at 248). In determining whether a genuine issue of fact exists, a court must resolve all factual doubts and draw all reasonable inferences in favor of the nonmoving party. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (citation omitted).
The initial burden is on the moving party to show an absence of a genuine issue of material fact. The moving party may meet this burden by "pointing out to the district court  that there is an absence of evidence to support the nonmoving party's case when the nonmoving party bears the ultimate burden of proof." Celotex, 477 U.S. at 325. The non-moving party may not rest on the bare allegations contained in his or her pleadings, but is required by Federal Rule of Civil Procedure 56(e) to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When Rule 56(e) shifts the burden of proof to the non- moving party, that party must produce evidence to show the existence of every element essential to its case which it bears the burden of proving at trial. Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987).
"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of evidence." Anderson, 477 U.S. at 255. Therefore, when evidentiary facts are in dispute, when the credibility of witnesses may be in issue, or when conflicting evidence must be weighed, a full trial is usually necessary.
C. DEFENDANTS' OBJECTIONS
As noted above, Defendants identify five objections to the Report and Recommendation. We will discuss each objection using the de novo standard of review.
1. Summary Judgment in Favor of Defendant Kitchen
Defendants first assert that the Report and Recommendation should not be adopted to the extent it does not specifically include a recommendation that Defendant Kitchen is entitled to summary judgment on all remaining claims asserted against him. (Doc. 85 at 5.) Plaintiff asserts that she consented to dismissal of the claims against Defendant Kitchen in her brief in opposition to Defendants' Motion for Summary Judgment. (Doc. 86 at 11.)
In Defendants' Motion for Summary Judgment, they asserted that "Moving Defendant Kitchen is entitled to summary judgment as to all remaining claims asserted against him as there is no evidence of record that he had any involvement whatsoever regarding Plaintiff's separation of employment with the Borough." (Doc. 69 ¶ 58.) Because Plaintiff does not object to granting summary judgment in favor of Defendant Kitchen (Doc. 86 at 11), we grant Defendants' motion in this respect. To the extent that Magistrate Judge Prince recommends Defendants' Motion for Summary Judgment be denied (Doc. 83 at 28), we do not adopt the Report and Recommendation as to Defendant Kitchen.
Defendants argue that the Report and Recommendation should not be adopted with regard to the Magistrate Judge's finding that there is a genuine issue of material fact concerning whether Plaintiff's due process rights were violated. (Doc. 85 at 6.) Plaintiff clarifies that she does not claim she had a property interest in her employment with the borough: "Ms. Erb's claim and her evidence is that her liberty interest in her public employment was impaired pursuant to the stigma-plus analysis, as detailed in Hill v. Borough of Kutztown, 455 F.3d 225 (3d Cir. 2006)." (Doc. 86 at 11.) For the reasons discussed below, we concur with the Magistrate Judge that Plaintiff's liberty interest claim should go forward.
To state a claim under § 1983 for deprivation of procedural due process rights, a plaintiff must allege that: "(1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of 'life, liberty, or property,' and (2) the procedures available to him did not provide 'due process of law.'" Hill, 455 F.3d at 233-34 (citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)).
The United States Supreme Court has held that an individual has a protectable liberty interest in reputation. Wisconsin v. Constantineau, 400 U.S. 433 (1971). "Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Id. at 437. In Hill, the Third Circuit Court of Appeals explained that reputation alone is not an interest protected by the Due Process Clause: "to make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right." Hill, 455 F.3d at 236 (citations omitted). Hill further explained that "[i]n the public employment context, the 'stigma-plus' test has been applied to mean that when an employer 'creates and disseminates a false and defamatory impression about the employee in connection with his termination,' it deprives the employee of a protected liberty interest." Id. (quoting Codd v. ...