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John J. Murphy v. Radnor Township

November 6, 2012


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


November ___, 2012

Presently before the Court is Defendant's Motion for Summary Judgment (Docs. 13 & 15) and Plaintiff's Response in Opposition thereto (Doc. 14). Upon consideration of the parties' motions with briefs and exhibits, and for the reasons set forth below, Defendant's Motion will be granted .


Plaintiff John J. Murphy ("Murphy") brings this action against Defendant Radnor Township ("Radnor" or the "Township") for alleged violations of the Uniform Services Employment and Reemployment Act ("USERRA"), 38 U.S.C. § 4301 et seq. , and the Pennsylvania Military Affairs Act ("PMAA"), 51 Pa. Cons. Stat. § 7301 et seq. Murphy alleges the Township impermissibly discriminated against him on account of his military and/or reserve obligations, and thereby failed to hire him for the position of Township Manager. Plaintiff requests the Court: (1) declare the practices of the Defendant to be violative of the USERRA and PMAA; (2) order Defendant to render back pay, front pay, and compensatory damages; and (3) instate Plaintiff to the position of Township Manager or to a position of similar responsibilities and pay. *fn2

Plaintiff Murphy entered the Air Force in 1997 and served on full-time active duty until September 2002. From September 2002 to present, he has served in the active reserves, currently holding the rank of major. Murphy was Deputy Administrator for the City of Wilkes-Barre from July 2002 to January 2004, and City Administrator from January 2004 to March 2010. During his employment with City of Wilkes-Barre, Murphy was deployed as part of his duty in the active reserves. From March 2008 to October 2008, Murphy was stationed in Djibouti, Africa, where he was Director of the Personnel Recovery Center, Combined Task Force. In this position, Murphy coordinated search and rescue operations in fourteen countries. Murphy also served as Watch Supervisor, Air Rescue Coordination Center, at Tyndall Air Force Base in Virginia. In March 2010, Murphy left municipal government to start his own consulting firm.

In June 2009, Murphy applied for the position of Township Manager for the Defendant. At that time, John Granger ("Granger") was serving as Interim Township Manager. *fn3 Granger recommended to the Board of Commissioners (the "Board") that Radnor hire a private, third party consultant to assist in hiring a new township manager. As a result, Dan Olpere ("Olpere"), owner of Local Government Management Services, LLC, was retained by the Radnor Township Board of Commissioners to gather resumes for the township manager position. Olpere collected, read, and ranked resumes, sending a more detailed application to those he ranked "must interview" and "could interview." Olpere also vetted the applications, and provided a listing and comments, regarding each of the candidates. As a result of his work, Olpere created three binders ranking the candidates. The Board of Commissioners then met to decide whom they wanted to interview for the position. Of the six candidates in the first tier marked "must interview" by Olpere, the Board selected three candidates for interviews, including Robert Zienkowski ("Zienkowski") and David Kraynik ("Kraynik"). Of the five second tier of candidates, marked "could interview," the Board selected another three candidates for interviews: Peter Miller ("Miller'), Christopher Canavan ("Canavan"), and Plaintiff Murphy. Granger scheduled these interviews, having received the list of interviewees from the Board.

Granger called Murphy on July 16, 2009 to schedule his interview. According to Murphy, Granger expressed the following:

[Granger] was very positive. [He] [t]old me I was one of eight finalists selected for an interview. That he was extremely impressed with my military background and my experience in Wilkes-Barre, and that was exactly what Radnor needed, in terms of the ethical leadership in response to community outrage over [former Township Manager] David Bashore's actions. *fn4 (Murphy Dep. at 31.) On June 27, 2009, while the vetting process was still going on, Commissioner Thomas Masterson (who was also President of the Board of Commissioners) received a call from Congressman Patrick Murphy. Congressman Murphy is Plaintiff Murphy's brother. Congressman Murphy left a voicemail for Commissioner Masterson stating, "I'm calling on behalf of my brother's application for township manager with Radnor. Please call me." This call was not returned by Commissioner Masterson, and it appears all or most of the other Commissioners and Granger did not know about the phone call until after the Plaintiff's interview.

Murphy's interview was held on July 22, 2009. The interview lasted approximately forty-five minutes and was attended by Interim Manager Granger and Commissioners Masterson, John Fisher ("Fisher"), Enrique Hervada ("Hervada"), and Hank Mahoney ("Mahoney"). Murphy's military experience and reserve obligations were discussed for at least ten minutes of his forty-five minute interview with the Board. Masterson, as President, led the questioning of all the candidates, including Murphy. Murphy characterizes the interaction as being "grilled" by Masterson. Murphy mentioned that his reserve obligations would require him to be gone approximately thirty-five days per year. Murphy states that Masterson questioned him on how his municipality could deal with his military commitments or even afford to deal with having the manager gone for that length of time.

At some point during this line of questioning, Granger became concerned that the Board was focusing too heavily on Murphy's military commitments. Granger testified that he essentially told the Board to "shut up," after which point the Board's tone changed to asking more about Plaintiff's actual duties in the military, rather than the amount of time he spent performing them. Murphy, sensing that the interview was "going south," informed the Board that he would be willing to move to inactive reserves to secure the position of township manager.

Ultimately, on July 27, 2009, Granger returned a message left for him by Murphy regarding the results of his interview. According to Murphy, Granger informed him that he was one of the top four candidates for the position, but the Board was only going to invite three candidates back for a second interview. Further, Murphy alleges that Granger specifically informed him that "[he] was right there in the top four, but that the commissioners had serious reservations about [his] ongoing military obligation. *fn5

Candidates Miller and Kraynik were offered second interviews, after which Miller was extended a job offer. After Miller turned down the job, Kraynik was offered the position. Kraynik also rejected the job. After Miller and Kraynik rejected the Township's job offers, the Board then decided to give a second interview to Candidate Canavan, who was initially rejected for a second interview. After being offered the position, Canavan also rejected the job offer. At this point Candidate Zienkowski, who for personal reasons had previously withdrawn his name from consideration after his first interview, then let it be known that he was now interested in the job. Zienkowski was given a second interview, after which he was offered the job and accepted it.


Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed R. Civ P. 56(c); see also Levy v. Sterling Holding Co., LLC, 544 F.3d 493, 501 (3d Cir. 2008). A factual dispute between the parties will not defeat a motion for summary judgment unless it is both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Dee v. Borough of Dunmore , 549 F.3d 225, 229 (3d Cir. 2008). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. See Anderson , 477 U.S. at 248; Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002).

The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. See Celotex v. Catrett , 477 U.S. 317, 327 (1986). Once the moving party has carried its burden under Rule 56, "its' opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Scott v. Harris, 550 U.S. 372, 380 (2007). Under Fed. R. Civ. P. 56(e), the opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. See Martin v. Godwin , 499 F.3d 290, 295 (3d Cir. 2007).

At the summary judgment stage the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. See Anderson , 477 U.S. at 249; Jiminez v. All American Rathskeller, Inc. , 503 F.3d 247, 253 (3d Cir. 2007). In doing so, the court must construe the facts and inferences in the light most favorable to the non-moving party. See Horsehead Indus., Inc. v. Paramount Communications, Inc., 258 F.3d 132 (3d Cir. 2001). The court must award summary judgment on all claims unless the non-moving party shows through affidavits or admissible evidence that an issue of material fact remains. See, e.g., Love v. Rancocas Hosp. , 270 F.Supp.2d 576, 579 (D.N.J. 2003); Koch Materials Co. v. Shore Slurry Seal, Inc. , 205 F.Supp.2d 324, 330 (D.N.J. 2002).


Radnor Township asserts that it is entitled to summary judgment, pursuant to Fed. R. Civ. P. 56, because no genuine issue as to a material fact exists as to whether it would have hired Murphy even without the alleged improper consideration of Murphy's military service and commitments. The Court agrees with the Defendant.

A. Uniformed Services Employment and Reemployment Rights Act (Count I)

The Uniformed Services Employment and Reemployment Rights Act ("USERRA") provides, in ...

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