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Thomas J. Bell, Anthony Bernardi v. Lackawanna County

August 31, 2012


The opinion of the court was delivered by: Christopher C. Conner United States District Judge


Shortly after a new administration took office in Lackawanna County in January of 2008, the seventeen plaintiffs in these two actions, all of whom were County employees who supported the prior administration, were terminated. They claim that Democratic County Commissioners Corey O'Brien and Michael Washo terminated them because of their affiliation with the Republican party, in violation of their First Amendment rights. The Commissioners and the County deny this contention and move for summary judgment against all plaintiffs. Were defendants motivated by partisan retribution in their decision to terminate these seventeen plaintiffs, or were plaintiffs' terminations merely a collateral consequence of the legitimate renovation of County government? For the reasons that follow, the court concludes that a jury must provide the answer to this question. Accordingly, the court will grant the motions in part, and deny the motions in part.

I. Background*fn1

A. Facts*fn2

Lackawana County is a political subdivision of the Commonwealth of Pennsylvania governed under the provisions of a Home Rule Charter adopted in 1976. (No. 3:08-CV-1926 Doc. 116 ¶¶ 1-2; Doc. 159 ¶¶ 1-2; Doc. 117, Ex. A).*fn3 Every four years Lackawana County residents elect three County Commissioners. (Doc. 116 ¶ 3; Doc. 159 ¶ 3). Voters are permitted to cast votes for two Commissioners, and the three highest vote-getters are elected to the position of Commissioner. (Doc. 116 ¶ 4; Doc. 159 ¶ 4). The Home Rule Charter also dictates various facets of County operations, including the requirement that the Commissioners adopt a personnel code containing policies for employee hiring. (Doc. 116 ¶ 16; Doc. 159 ¶ 16). The Home Rule Charter explicitly mandates that all appointments shall be made on the basis of merit and fitness. (Doc. 116 ¶ 16; Doc. 159 ¶ 16).

Prior to the 2007 election, the County Commissioners were Robert Cordaro ("Cordaro"), Anthony (A.J.) Munchak ("Munchak"), both Republicans, and Michael Washo ("Washo"), a Democrat. Cordaro and Munchak both ran to retain their positions in the 2007 election. (Doc. 116 ¶ 19; Doc. 159 ¶ 19). Corey O'Brien ("O'Brien") joined Washo to form the Democratic ticket in the 2007 race. As part of their platform, Washo and O'Brien pledged to make county government more transparent and accessible; they promised to broadly advertise county employment opportunities and to seek applications for county employment from all eligible residents, an approach which they claim had not been attempted heretofore in the County. Washo and O'Brien also promised to operate government more efficiently and spend wisely. (Doc. 116 ¶¶ 20, 22; Doc. 159 ¶ 20, 22). Voters elected Washo, O'Brien and Munchak, effectively transferring the control of County government to the two Democrat County Commissioners who formed the majority. (Doc. 116 ¶ 23; Doc. 159 ¶ 23).

At the time of the 2007 election, all seventeen plaintiffs in these two actions were employed by Lackawanna County. (See No. 3:08-CV-1926, Doc. 20; No. 3:08-CV-0737, Doc. 1). Thomas Bell ("Bell") was the Lackawanna County Tax Assessment Administrator. (Doc. 20 ¶ 18). Anthony Bernardi ("Bernardi") held the position of Director of Personnel. (Id. ¶ 24). Joseph DeAntona ("DeAntona") was Director of Parks, Recreation and Sports. (Id. ¶ 30). Joseph McCawley ("McCawley") held the position of Fleet Manager and Risk Manager. (Id. ¶ 36). Jayme Morano ("Morano") was Director of Buildings and Grounds. (Id. ¶ 42). Patrick O'Malley ("O'Malley") was Assistant Director of Parks and Recreation. (Id. ¶ 48). Nicolas Parise ("Parise") held the title of Assistant Director of Buildings and Grounds. (Id. ¶ 54). Dominic Rinaldi ("Rinaldi") was employed by the County as Director of Purchasing. (Id. ¶ 60). Dominick Romanini ("Romanini") was a Grant Writer for the County. (Id. ¶ 66). Charles Spano ("Spano") held the position of Deputy Director of Voter Registration. (Id. ¶ 72). William Tonkin Jr. ("Tonkin") was Park Supervisor. (Id. ¶ 78). Bruce Smallacombe ("Smallacombe") was employed by the County as Director of Roads and Bridges. (Id. ¶ 84). Thomas Galella III ("Galella") held the title of GIS (Geographic Information Systems) Coordinator within the Assessor's Office. (Id. ¶ 89A). Gary Propersi ("Propersi") was Director of Hotel Tax/Personal Property Tax. (Id. ¶ 89G). Thomas Harrison ("Harrison") was employed as the Director of Tax Claims in the Tax Claims Department. (Id. 89M). Kenneth Kovaleski ("Kovaleski") held the position of Assistant Public Defender. (No. 3:08-CV-0737, Doc. 1 ¶ 9). Finally, Thomas Bradley ("Bradley") was employed as the Director of Veterans Affairs. (Id. ¶ 15). The vast majority of these seventeen men were registered Republicans, and all supported the Republican party and its candidates in the 2007 Commissioner election. (See No. 3:08-CV-0737, Doc. 1 ¶¶ 14, 19; No. 3:08-CV-1926, Doc. 20 ¶¶ 19, 25, 31, 37, 43, 49, 55, 61, 67, 73, 79, 85, 89B, 89H, 89N).

After the election and prior to taking office, Washo and O'Brien learned that the County faced a serious and potentially devastating budget shortfall of $8 million dollars. (Doc. 116 ¶ 24; Doc. 159 ¶ 24). They established between 12 and 15 committees to review all County departments and related functions. (Doc. 116 ¶ 25; Doc. 159 ¶ 25). Washo and O'Brien directed Elizabeth Randol ("Randol"), their campaign manager and incoming Chief of Staff, to notify, inter alios, these plaintiffs that the new Commissioners intended to open up their positions, and solicit applications by posting the jobs on a website and advertising the positions in the local newspaper. (Doc. 116 ¶ 39; Doc. 159 ¶ 39). Randol informed existing employees that they were welcome to apply for their current positions or to seek new positions, but that they must formally apply and be interviewed. (Doc. 117, Ex. L, at 93-95).

On December 11, 2007, and January 4, 2008, Washo and O'Brien placed advertisements in the local newspaper for numerous County positions. (Doc. 116 ¶¶ 35, 36; Doc. 159 ¶¶ 35, 36). The advertisements provided an internet address where Washo and O'Brien posted job descriptions for the open positions that had been prepared for Washo and O'Brien by a human resources consultant. (Doc. 116 ¶ 37; Doc. 159 ¶ 37; Doc. 173, Ex. 19, at 213-17). Disclaimers on the advertisements stated that the job summaries were not intended to be formal job descriptions or to contain a complete list of responsibilities and qualifications for the positions. (Doc. 117, Ex. U; Doc. 173, Ex. 19, at 214).

As part and parcel of the analysis of County employment opportunities and practices, O'Brien created the "Washo-O'Brien Hiring Chart." (Doc. 188, Ex. 50; Doc. 175, Ex. 23, at 96-100). O'Brien claims that this chart is a budgetary document. It lists those County employees who were terminated and those who were hired hired, along with job titles and salaries. (Doc. 188, Ex. 50; Doc. 175, Ex. 23, at 96-100). Washo and O'Brien retained certain individuals (department heads) that minority County Commissioner Munchak supported for retention, all of whom backed the Cordaro-Munchak campaign in the 2007 election. (Doc. 116 ¶¶ 32, 33; Doc. 159 ¶¶ 32, 33).

On January 7, 2008, Commissioners Washo, O'Brien and Munchak were sworn into office. (See Doc. 117, Ex. L, at 25). Simultaneously, fourteen of the named plaintiffs in this action were terminated from the County. (See Doc. 23 ¶¶ 20, 26, 32, 38, 44, 50, 56, 62, 68, 74, 80; Doc. 185, Ex. 29E ¶ 26, Ex. 29F ¶ 19, Ex. 29J ¶ 19). With respect to the remaining three, Kovaleski's employment with the County ended February 12, 2008 (Doc. 185, Ex. 29G ¶ 24); Bradley was terminated March 10, 2008 (Doc. 184, Ex. 29C ¶ 19); and Smallacombe's termination was effective April 12, 2008. (Doc. 23 ¶ 86). None of the 17 plaintiffs was offered a position through the hiring process conducted by Washo and O'Brien and each filed a claim for unemployment compensation after termination of employment.*fn4 (Doc. 116 ¶ 44; Doc. 159 ¶ 44). The County's express reason for termination, as set forth on the unemployment forms for each plaintiff, was "change of administration," except for Smallacombe, whose form referenced "lack of work" as the reason for termination. (Doc. 189, Ex. 51; Doc. 191, Ex. 57).

B. Procedural History

The plaintiffs in Kovaleski v. Lackawanna County (Civ. A. No. 3:08-CV-0737) instituted the first lawsuit in these consolidated matters. Plaintiffs Kenneth Kovaleski and Thomas Bradley filed their complaint on April 21, 2008, against Lackawanna County, O'Brien and Washo. (No. 3:08-CV-0737, Doc. 1).*fn5 Pursuant to

42 U.S.C. § 1983, plaintiffs allege violations of their First Amendment rights to free speech and association, First Amendment retaliation and violations of their Fourteenth Amendment equal protection and due process rights. (Id. ¶¶ 35-38). Plaintiffs also assert a state law claim for wrongful termination in violation of public policy, and request punitive damages against Washo and O'Brien. (Id. ¶¶ 41-43).

On October 20, 2008, Thomas Bell, Anthony Bernardi, Joseph DeAntona, Joseph McCawley, Jayme Morano, Patrick O'Malley, Nicholas Parise, Dominic Rinaldi, Dominick Romanini, Bruce Smallacombe, Charles Spano, and William Tonkin Jr. filed their initial complaint in this litigation against Lackawanna County, O'Brien and Washo. (No. 3:08-CV-1926, Doc. 1). With leave of court, the plaintiffs filed an amended complaint on April 17, 2009 (Doc. 20), adding Thomas Galella III, Gary Propersi and Thomas Harrison as plaintiffs. Like Kovaleski and Bradley, these plaintiffs allege, pursuant to 42 U.S.C. § 1983, violations of their First Amendment rights to free speech and association, First Amendment retaliation and violations of their Fourteenth Amendment equal protection and due process rights. (Id. ¶¶ 113-114, 118-120). Plaintiffs similarly assert a state law claim for wrongful termination in violation of public policy, and request punitive damages against Washo and O'Brien. (Id. ¶¶ 124-125).*fn6

The Honorable Thomas Vanaskie initially presided over both matters and on January 29, 2009, consolidated the Bell and Kovaleski cases for purposes of discovery. (See Doc. 14). Both matters were reassigned to the undersigned on June 29, 2010 (No. 3:08-CV-0737) and July 14, 2010, respectively. (No. 3:08-CV-1926, Doc. 38).*fn7

On February 15, 2011, defendants filed individual motions for summary judgment for each of the 17 plaintiffs. (See No. 3:08-CV-0737, Docs. 34, 38; No. 3:08-CV-1926, Docs. 56, 60, 64, 68, 72, 76, 80, 84, 88, 92, 96, 100, 104, 108, 112). On February 21, 2011, plaintiffs moved to disqualify defense counsel on the basis of an alleged conflict of interest revealed through the summary judgment motions. (See Doc. 119). Thereafter, the court stayed briefing on the summary judgment motions pending resolution of the motion to disqualify. (Doc. 121). The court denied the motion on June 7, 2011, and issued a new briefing schedule. (Docs. 129, 130). Plaintiffs filed a single, comprehensive brief in opposition to defendants' motions on August 25, 2011. (Doc. 141). Defendants filed reply briefs on October 24, 2011. (No. 3:08-CV-0737, Docs. 56, 57; No. 3:08-CV-1926, Docs. 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208). That same day, defendants also filed motions to strike the declarations submitted by plaintiffs in support of their opposition to summary judgment. (No. 3:08-CV-0737, Doc. 58; No. 3:08-CV-1926, Doc. 212). The parties filed briefs in opposition and reply briefs on November 4, and November 21, 2011, respectively. (No. 3:08-CV-0737, Docs. 60, 61; No. 3:08-CV-1926, Docs. 214, 215). All nineteen motions have been fully briefed and are ripe for disposition.

II. Standard of Review

Through summary adjudication the court may dispose of those claims that do not present a "genuine dispute as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(a). The burden of proof is upon the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(a), (c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.

III. Discussion

Section 1983 of Title 42 of the United States Code offers private citizens a means to redress violations of federal law committed by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Id. Section 1983 is not itself a source of substantive rights but instead provides a method for vindicating rights secured elsewhere in federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). In order to prevail, a § 1983 plaintiff must demonstrate that the defendant, while acting under the color of state law, deprived the plaintiff of a federal constitutional or statutory right. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006).*fn8

As the motions to strike bear upon evidence relevant to the court's consideration of the summary judgment motions, the court will address the motions to strike first.

A. Motions to Strike Plaintiffs' Declarations

Defendants move to strike the declarations of each plaintiff submitted in Exhibits 29A through 29P (see Docs. 184, Exs. A-E; Doc. 185, Exs. F-M; Doc. 186, Exs. N-P) to their brief in opposition to the motions for summary judgment. (Doc. 212).*fn9 Defendants assert that the declarations were not provided to them despite interrogatory requests and requests for production of documents containing "any and all statements of any party to this action . . . relating or pertaining to the allegations" in the complaint. (Doc. 213, at 3). Defendants assert that plaintiffs had a duty to supplement their discovery responses by providing the declarations to defendants. (Id. at 4). Defendants further contend that the declarations contain material inappropriate for a declaration, namely beliefs and opinions, inadmissible hearsay and conclusory speculation, as opposed to factual assertions. (Id. at 5-7).*fn10

Plaintiffs respond that the declarations are merely a compilation or synthesis of information contained in the evidentiary record and that they were not required to product the declarations prior to filing because they constitute classic work product and are not discoverable under Federal Rule of Civil Procedure 26(b)(3)(A). (See Doc. 214).

The court will first address defendants' contention that the declarations should be stricken in their entirely for violating discovery rules. Rule 26 of the Federal Rules of Civil Procedure governs the scope of discovery. See FED. R. CIV. P. 26. The scope of discoverable material is broad, but certain materials are protected from discovery. The work product doctrine, originating from the United States Supreme Court case of Hickman v. Taylor, 329 U.S. 495 (1947), and later promulgated in Rule 26, protects certain materials made or prepared by an attorney or his agent in anticipation of litigation. See FED. R. CIV. P. 26(b)(3); Hickman, 329 U.S. 495. Rule 26(b)(3)(A) states in pertinent part: "Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative . . . ." except upon a showing of substantial need and undue hardship. FED. R. CIV. P. 26(b)(3)(A).

"Core" or "opinion" work product, which encompasses "mental impressions, conclusions, opinion, or legal theories of an attorney," is subject to even greater protection and is discoverable only in rare and exceptional circumstances. See In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir. 2003) (internal citation and quotation omitted).

The failure to produce discoverable material in a timely fashion may result in sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure. The rule dictates that when a party fails to provide information "as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." FED. R. CIV. P. 37(c).

The circumstances under which a declaration, either in draft or final form, is appropriately deemed undiscoverable attorney work product is not altogether clear. See Murphy v. Kmart Corp., 259 F.R.D. 421, 428 (D.S.D. 2009) (noting court division on issue of whether affidavit of witness drafted by attorney constitutes attorney work product). Some courts find that unexecuted, draft declarations merely denote what an attorney thinks a party or witness will state, and therefore constitute attorney work product. See Judicial Watch, Inc. v. U.S. Dept. of Commerce, 201 F.R.D. 265, 269-70 (D.D.C. 2001). Some courts also consider signed declarations to be work product, and hence privileged, until the moment they are filed with the court. See Intel Corp. v. VIA Technologies, Inc., 204 F.R.D. 450, 452 (N.D. Cal. 2001);*fn11 Tierno v. Rite Aid Corp., No. C 05-02520, 2008 WL 2705089, at *4 (N.D. Cal. July 8, 2008) (quoting Intel Corp., 204 F.R.D. at 452). Others still conclude that any work product protection that an affidavit or declaration may have disappears once the affiant or declarant signs the document. See Tuttle v. Tyco Elec. Installation Servs., Inc., NO. 2:06-cv-581, 2007 WL 4561530, at *2 (S.D. Ohio Dec. 21, 2007) ("Affidavits are normally not protected by the work product doctrine for the very reason that an affidavit 'purports to be a statement of facts within the personal knowledge of the witness, and not an expression of the opinion of counsel.'" (citation ommitted)); see also Walker v. George Koch Sons, Inc., Civ. A. No. 2:07cv274, 2008 WL 4371372, at *5 (S.D. Miss. Sept. 18, 2008).

Both parties direct the court to Doe v. Luzerne County, Civ. A. No. 3:04-1637, 2008 WL 2518131 (M.D. Pa. June 19, 2008). In Doe, the court held that the declaration of a third-party witness could not be regarded as the work-product of an attorney. Id. at *4. Plaintiffs claim that Doe is inapplicable because it involved the declaration of a witness, whereas the instant matter involves declarations generated by attorneys and signed by parties to the litigation, thus bringing them within the ambit of Rule 26(b)(3)(A), which protects documents "prepared in anticipation of litigation or for trial by or for another party." (Doc. 214, at 12). In fact, most if not all of the cases cited above involve affidavits or declarations obtained from third-party witnesses, not parties to the litigation itself. See e.g., Murphy, 259 F.R.D. at 431 (concerning third-party witness affidavits); Intel Corp., 204 F.R.D. 450 (declaration of witness); Tuttle, 2007 WL 4561530 (witness affidavits).

The court finds this distinction relevant and concludes that plaintiffs were not required to disclose the declarations prior to filing. Intel Corp., 204 F.R.D. at 452. To be pellucidly clear, the court is persuaded by and adopts the ratio decidendi of Intel Corp., supra. Furthermore, assuming arguendo that counsel was required to disclose the declarations upon their execution by plaintiffs, the failure to disclose the declarations was harmless. The vast majority of factual averments in the declarations concern well-known and undisputed facts in this litigation, such as hiring and termination dates, job descriptions, and political affiliation. (See e.g., Doc. 184, Ex. 29A ¶¶ 2-5, 10, 24, 25, 27). Accordingly, the court will deny the motion to strike the declarations in their entirety.

Defendants also move to strike specific averments on the grounds that the averments constitute improper opinion and belief. A declaration is "[a] formal, written statement . . . that attests, under penalty of perjury, to facts known by the declarant." BLACK'S LAW DICTIONARY 468 (9th ed. 2009). Rule 56(c)(4) of the Federal Rules of Civil Procedure provides that "[a]n affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." FED. R. CIV. P.

56(c)(4).*fn12 The Third Circuit has interpreted the rule to require an affiant to state facts, rather than opinions and conclusions. Maldonado v. Ramirez, 757 F.2d 48, 51 (3d Cir. 1985). "Statements of belief, no matter how sincere, are properly subject to a motion to strike because they do not meet the personal knowledge requirement." Summy-Long v. Pa. State Univ., Civ. A. No. 1:06-cv-1117, 2009 WL 811616, at *2 (M.D. Pa. Mar. 26, 2009) (citing Fowler v. Tillman, 97 F. Supp. 2d 602, 607 (D.N.J. 2000)).

The court has carefully reviewed the paragraphs highlighted by defendants and it is clear that they represent the opinions and beliefs of the plaintiffs, not facts within their personal knowledge. For example, each declaration states that the plaintiff was terminated for his association with, and speech in support of, the Republican candidates for Lackawanna County Commissioners and that the motivation for plaintiffs' terminations was partisan retribution. Such statements are clearly personal opinions, not facts within the personal knowledge of the plaintiffs. Each plaintiff's belief that his termination was summary and based upon politics is not a fact-it is the very issue in this case-and therefore not appropriate content for a declaration. See FED. R. CIV. P. 56(c)(4); Summy-Long, 2009 WL 811616, at *2. The purpose of a declaration is to set out facts, not each plaintiff's belief about what the facts establish. The court will therefore grant the motion to strike in part and strike the four or five paragraphs of each of the 16 declarations that contain personal opinions and beliefs.*fn13 They will not be considered as part of the court's summary judgment analysis.

B. Partial Summary Judgment Motion?

Plaintiffs' complaints assert violations of First Amendment free association and speech rights as well as a state-law wrongful termination cause of action and a request for punitive damages against Washo and O'Brien. (Doc. 20 ¶¶ 118-120, 124-126; No. 3:08-CV-0737, Doc. 1 ¶¶ 113, 114, 118-120, 124, 125). Plaintiffs contend that defendants' motions seek only partial summary judgment in that they fail to address plaintiffs' First Amendment free speech claims. (Doc. 141, at 1 n.1, 42). Defendants reply that plaintiffs "merely make conclusory assertions that they engaged in speech or 'supported' incumbents. They do not assert that they spoke out either in the media or to Washo or O'brien regarding their political beliefs. Accordingly, their (ambiguous) speech claim merges into an association claim." (Doc. 209, at 15).

A public employee's speech claim is governed by the balancing test set forth in Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968).*fn14 An association claim alleging termination on the basis of political affiliation is analyzed under the doctrine set forth in Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980).

In their declarations and depositions, each plaintiff alleges some form of political speech in favor of the Republican Commissioners during the 2007 election, such as campaigning for the Republican Commissioners, canvassing neighborhoods with campaign literature, volunteering on committees, wearing campaign paraphernalia, introducing candidates to voters, recruiting poll workers, placing signs around the county and on personal property, making financial contributions to the campaign, placing phone calls, sending letters, speaking at, organizing, and attending rallies, fund-raisers, parties and functions in support of the Republican Commissioners, and hosting such events. (Doc. 184, Ex. 29A ¶ 25, Ex. 29B ¶ 24, Ex. 29C ¶ 18, Ex. 29D ¶ 22; Doc. 185, Ex. 29E ¶ 25, Ex. 29F ¶ 18, Ex. 29G ¶ 23; Ex. 29H ¶ 24, Ex. 29I ¶ 26, Ex. 29J ¶ 26, Ex. 29K ¶ 18, Ex. 29L ¶ 18, Ex. 29M ¶ 23; Doc. 186, Ex. 29N ¶ 19, Ex. 29O ¶ 26; see also Doc. 165, Ex. 9, at 50, 51).

These activities clearly implicate First Amendment speech rights. Defendants do not address the Pickering balancing test in their motions for summary judgment or supporting briefs. Consequently, the court concludes that defendants have not moved for summary judgment on plaintiffs' First Amendment speech claims.*fn15

C. Political Patronage Discrimination

To establish a prima facie case of political patronage discrimination in violation of the First Amendment rights to speech and association, each plaintiff must establish that: (1) he was employed at a public agency that does not require political affiliation; (2) he was engaged in constitutionally protected conduct; and (3) such conduct was a substantial or motivating factor in the government's employment decision. Galli v. N.J. Meadowlands Comm'n, 490 F.3d 265, 271 (3d Cir. 2007). When plaintiffs establish a prima facie case, the County and defendant Commissioners may avoid liability by establishing that the same employment action would have been taken in the absence of protected activity. Id. (citing Stephens v. Kerrigan, 122 F.3d 171, 176 (3d Cir. 1997)).

Defendants contend that they are entitled to summary judgment against each plaintiff on grounds that none of the plaintiffs can establish a prima facie case of political patronage discrimination. With respect to the first prong, defendants assert that plaintiffs received their positions as part of past administrations' patronage hiring and cannot show that they held their positions regardless of political affiliation or that their positions were purely apolitical. Defendants further contend that plaintiffs fail to meet their burden under the third prong of showing their political affiliation was a substantial or motivating factor in their termination. Defendants point to: (1) their campaign promise to make government open and accessible-which included the elimination of the alleged patronage hiring methods of their predecessors-and (2) the $8 million dollar budget shortfall as the bases for their decision to reorganize and restructure county departments and county positions.

Finally, defendants contend that they have satisfied their burden of showing that they would have made the same decision regardless of plaintiffs' political affiliation, that is, defendants assert that they have established the same decision defense with respect to every plaintiff. Defendants posit that they have stayed true to their campaign promises and have adopted an apolitical approach, selecting only the best qualified individuals for open positions regardless of party affiliation.

Plaintiffs respond that there are disputed issues of fact regarding whether each plaintiff's position required political affiliation. In particular, plaintiffs note that at Lackawanna County's 30(b)(6) deposition the County admitted that political affiliation was not an important factor for the positions held by plaintiffs. (Doc. 141, at 25). With respect to the second prong, plaintiffs contend that they engaged in constitutionally protected conduct, namely being registered Republicans or supporters of the Republican candidates and engaging in speech in support of Republican County Commissioners. (Id. at 27). Finally, plaintiffs contend that they have put forth sufficient evidence on the third prong to establish a prima facie case that their political affiliation was a substantial or motivating factor in their terminations. Plaintiffs highlight the timing and number of terminations, that fourteen were terminated on Washo and O'Brien's first day in office, unemployment compensation documents wherein the County purportedly listed as the reason for termination "change in administration," alleged statements of retaliation by defendants and their agents, the Washo-O'Brien Hiring Chart listing individuals to be terminated and their replacements, and statements from Republican Commissioner Munchak that the plaintiffs' terminations were political. (Doc. 141, at 29-32).

1. Whether Plaintiffs' Employment Required Political Affiliation Political affiliation may be a perfectly appropriate basis for hiring or firing when the vacant position is deemed to be "policymaking," rendering political affiliation relevant to effective performance of the office involved. See Galli, 490 F.3d at 271; Branti, 445 U.S. at 518. To determine whether political affiliation is an appropriate consideration, the court should consider factors such as "whether the employee has duties that are non-discretionary or non-technical, participates in discussions or other meetings, prepares budgets, possesses the authority to hire and fire other employees, has a high salary, retains power over others, and can speak in the name of policymakers." Id. (citing Brown v. Trench, 787 F.2d 167, 169 (3d Cir. 1986)). The court must review and consider the intended "functions of the office in question and not the actual past duties of the particular employee involved.'" Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 397 (3d Cir. 1998) (citations and quotations omitted); see also O'Connor v. Steeves, 994 F.2d 905, 911 (1st Cir. 1993) ("[T]he actual past duties of the discharged employee are irrelevant if the position inherently encompasses more expansive powers and more important functions that would tend to make political affiliation an appropriate requirement for effective performance."). Most important is whether the employee has meaningful input into decisionmaking regarding the nature and scope of a major governmental program. Galli, 490 F.3d at 271 (citing Armour v. County of Beaver, PA, 271 F.3d 417, 429 (3d Cir. 2001). Ultimately, this inquiry is fact-specific. See McGroarty v. City of WilkesBarre, 311 Fed. App'x 553, 554 (3d Cir. 2009) (citing Waskovich v. Morgano, 2 F.3d 1292, 1297 (3d Cir. 1993)).

The plaintiff carries the initial burden of establishing that his or her position does not require political affiliation. When a governmental entity claims that a discharge is proper because political affiliation is central to the job itself, the burden shifts to the government. Galli, 490 F.3d at 271 (citing Armour v. County of Beaver, PA, 271 F.3d 417, 420 (3d Cir. 2001)); Delhagen v. McDowell, 703 F. Supp. 2d 467, 474 (M.D. Pa. 2010).

Defendants generally assert that plaintiffs obtained their County government employment through a patronage system of the previous administration and, therefore, plaintiffs cannot meet their threshold burden. Assuming arguendo that prior administrations considered each individual's political affiliation when plaintiffs were hired, plaintiffs are not precluded, ex proprio vigore, from establishing that their positions do not require political affiliation. The question under the first prong of a political patronage discrimination claim is not whether plaintiffs initially received their positions based in part on their political affiliation, the question is whether policy determinations or related oversight are essential functions of the office.

Defendants also specifically assert that the positions held by Bernardi, Bradley, DeAntona, Harrison, Morano, Parise, Propersi, Rinaldi, and Smallacombe are policymaking positions for which political affiliation is an appropriate consideration. Given the fact-specific nature of the policymaking inquiry, the court will address the circumstances of each plaintiff seriatim. See Galli, 490 F.3d at 271.

i. Bernardi

Bernardi was employed by Lackawanna County as the Personnel Director from 1988 to 2000 and again from 2004 until his termination in January 2008. (Doc. 61 ¶¶ 2-5; Doc. 143 ¶¶ 2-5). Defendants contend that Bernardi reviewed all County hiring and termination decisions and supervised the county workforce of approximately 1200 employees, thereby rendering his political affiliation an appropriate consideration for his office. (Doc. 61 ¶¶ 12-13). Moreover, defendants observe that the new position created to handle Bernardi's prior duties clearly involves the exercise of independent decision and policy-making authority. (Doc. 63, at 13-14).

Plaintiffs counter that Bernardi did not control hiring because the Commissioners retain ultimate control of all hiring. Plaintiffs observe that Bernardi did not prepare a budget, and that he merely supervised a staff of two employees-a personnel assistant and an administrative assistant. (Doc. 160, Ex. 2 at 26-28; Doc. 184, Ex. 29B ¶ 8). Bernardi testified his deposition that he did not prepare an employee handbook, and asserted that he was never consulted by the Commissioners for input into employee policies for the County. (Id. at 45). When Bernardi applied for a position in the Washo-O'Brien administration, Bernardi described his job duties as follows:

Responsible for managing all functions of the personnel department. Advise and assist department heads and elected officials on all areas of personnel management. Develop and implement personnel programs and establish operating policies and procedures. Responsible for overseeing payroll functions for the county. Responsible for and experienced in negotiating all seven union contracts for the county (Chief Negotiator). Responsible for recruiting, interviewing and placing both professional and non-professional applicants throughout the county. Familiar with grievance procedures as well as grievance arbitration . . . Responsible for all fringe benefit programs for county employees. Developed job descriptions and performance evaluations in accordance with ADA Doc. 62, Ex. B).

Bernardi's initial description of his job duties and his subsequent deposition testimony are somewhat inconsistent, but it does not appear Bernardi had hiring and firing authority or prepared a budget. The Lackawanna County representative testified at her Rule 30(b)(6) deposition that the position of Deputy Director of Human Resources, the position to which all of Bernardi's duties were transferred, is not one for which political affiliation would be an appropriate consideration. (Doc. 170, Ex. 18 at 32). On this record, there is, at minimum, a factual dispute as to the scope of Bernardi's authority and whether political affiliation would be an appropriate consideration for his position. Thus, summary judgment is inappropriate.

ii. Bradley

Bradley became Director of Veterans Affairs for Lackawanna County in 2004 on a part-time basis. (No. 3:08-CV-737, Doc. 39 ¶ 1). Pursuant to Pennsylvania law, the County must appoint a Director of Veterans Affairs to carry out certain statutorily defined duties. See 16 P.S. § 1923.

Defendants contend that Bradley's position as Director of Veterans Affairs was independent of the authority of the County Commissioners by virtue of this statutory fiat. Hence, defendants argue that Bradley performed his duties at his discretion-squarely within the definition of a policymaking position. (No. 3:08-CV-0737, Doc. 41, at 7). Defendants allege that Bradley was the only individual certified to make claims on behalf of veterans, that he handled the representation of veterans at hearings and that he initiated various programs, including an outreach program. (Id. at 7-8). In Adams v. Rodfong, the Pennsylvania Court of Common Pleas of Beaver County held that the Director of Veterans Affairs position was not a policymaking position. 7 Pa. D. & C. 3d 463 (Pa. Ct. Comm. Pleas 1978). The court, in determining whether the position of Director of Veterans Affairs was entitled to high public official immunity, held that the provisions of 16 P.S. § 1923 do not vest the Director of Veterans Affairs with policy-making functions. Id. at 467. The Adams court observed: "On the contrary the director's duties are primarily to 'assist' the commissioners and to implement the public policy laid down by them and the legislature." Id. This court concurs with the Adams court analysis that the Director of Veterans Affairs is a position entirely subordinate to the County Commissioners. Accordingly, the court finds that the position of Director of Veterans Affairs is not one for which political affiliation would be an appropriate consideration. Bradley thus satisfies the first prong of his claim.

iii. DeAntona

DeAntona served as the Lackawanna County Director of Parks and Recreation from January 2004 until his termination in January 2008. (Doc. 65 ¶ 13; Doc. 144 ¶ 13). Defendants contend that DeAntona had meaningful and direct influence in operating and administering the County parks and recreation programs. (Doc. 67, at 7). Specifically, they claim that DeAntona supervised an entire department, emphasizing that his position was considered cabinet level by the prior administration. Defendants posit that he "had full discretion on where to assign employees working under him and what priorities to identify to formulate his Department's budget, a budget over which he had sole discretion to spend." (Doc. 67, at 8). DeAntona responds that despite his title as Director, he did not hire any employees for his department. He acknowledges that he supervised a staff of over 20 employees and assigned employees to specific positions. (Doc. 65 ¶¶ 14, 15; Doc. 144 ¶ 14, 15). DeAntona also testified at his deposition that he had no input into the budget for the department, in "any policy-type thing[s]" or with staff hiring. (Doc. 161, Ex. 4, at 62-63).

As previously noted, the court finds that opinions of prior administrations as to whether particular jobs constitute "policymaking positions" hold limited precedential value, particularly when departments are reorganized and various duties are shifted from one position to another. Such opinions may be probative, but they are certainly not dispositive, of the issue. DeAntona oversaw a staff of 20-30 employees and assigned them various responsibilities, but there is a factual dispute as to DeAntona's level of authority and policymaking functions, created by DeAntona's own testimony compared to that of former Commissioners and the present defendants. Accordingly, the court finds that summary judgment is inappropriate with respect to DeAntona on the first prong of his political patronage discrimination claim.

iv. Harrison

At the time of the 2007 Commissioner election Harrison was employed for the County as the Director of the Tax Claim Bureau. (Doc. 113 ¶ 2; Doc. 146 ¶¶ 2). The Director is responsible for collecting delinquent taxes from 40 municipalities in the County, which amounts to approximately $8 million dollars each year. (Doc. 113 ¶ 24; Doc. 146 ¶ 24). As Director, Harrison formulated a budget for his department and supervised a staff of seven. (Doc. 113 ¶¶ 27-28; Doc. 146 ¶ 27-28).

Defendants assert that the Director position was a department leadership position and that the prior administration believed it to be a policymaking position that turned over in a new administration. (Doc. 113 ¶ 23). They assert that Harrison had "unfettered independence and discretion" in running his department and how it collected taxes. (Id. ¶ 25). In response, plaintiffs counter that Harrison's duties are prescribed by statute, his secretary prepared the budget, and Harrison did not report to the Commissioners simply because there was no need to do so -- the Treasurer's Office reported the amount of delinquent taxes collected. (Doc. 163, Ex. 6, at 20-23). Defendants further assert that Harrison regularly exercised his discretion when he entered into agreements with delinquent ...

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