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Savage v. Pennsylvania Turnpike Commission

United States District Court, E.D. Pennsylvania

June 1, 2018



          Robert D. Mariani, United States District Judge.

         I. Introduction and Procedural History

         On December 8, 20');">2015, Plaintiff, Daniel Savage, filed this action against his former employer, the Pennsylvania Turnpike Commission ("the Commission") (Doc. 1). Plaintiff's three count Complaint alleges violations by Defendant of Plaintiff's constitutional right to free speech and association pursuant to 42 U.S.C. § 1983 and the Pennsylvania Constitution.

         The Pennsylvania Turnpike Commission moved to dismiss the Complaint on February 12, 20');">2016 (Doc. 8). The Court held oral argument on Defendant's Motion on June 3, 20');">2016. By Memorandum and Order entered June 27, 20');">2016, this Court denied the Pennsylvania Turnpike Commission's motion to dismiss while limiting Count III, brought under the Pennsylvania Constitution, to declaratory and injunctive relief. (Docs. 22, 23).

         On September 14, 20');">2017, the Commission moved for summary judgment (Doc. 54). As of November 30, 20');">2017, all briefing by the parties was completed and the motion is now ripe for resolution. (See Docs. 55, 61, 65-67). For the reasons that follow, the Court will deny Defendant's motion.

         II. Statement of Material Facts

         Defendant Pennsylvania Turnpike Commission submitted a statement of material facts as to which it contends there is no dispute, in accordance with Local Rule 56.1 of the Middle District of Pennsylvania Rules of Court. (Doc. 55). Plaintiff Savage responded to the Commission's statement of material facts (Doc. 61-2). In addition, Plaintiff filed his own counter-statement of material facts (Doc. 61-2) although, as properly noted by the Commission, such a counter-statement of material facts is not contemplated by the language of Local Rule 56.1. Nonetheless, the Defendant Commission responded to the specific paragraphs of Plaintiff's counter-statement of material facts and accordingly, the undisputed material facts set forth herein are drawn from both the Defendant's statement of material facts, Plaintiff's paragraph-by-paragraph response thereto, and Plaintiff's counter-statement of material facts which was likewise responded to by the Commission in the same manner.

         Except where noted, the following facts are undisputed.

         A. Defendant's Statement of Material Facts

         The Commission is an independent agency of the Commonwealth of Pennsylvania, created to construct, operate, and maintain the Pennsylvania Turnpike, the Beaver Valley Expressway, Amos K. Hutchinson Bypass, Mon/Fayette Expressway, Southern Beltway, and Northeast Extension. (Def.'s Statement of Undisputed Material Facts ("DSOF"), Doc. 55, at ¶ 1).

         Daniel Savage originally worked at the Commission from August 20');">2003 to November 20');">2006, first as a business representative and later as a safety compliance manager. Plaintiff was recommended for the job by then-Commissioner Mitchell Rubin. (Id. at ¶ 2).

         In November 20');">2006, the Plaintiff was elected in a special election as a member of the Philadelphia City Council, at which time he voluntarily left his employment at the Commission. (Id. at ¶ 3). Savage served on the Philadelphia City Council until January 20');">2008, but then lost his seat in the next regular election. (Id. at ¶ 4).

         Plaintiff learned that then-Eastern District manager, Carmen Marrone, was leaving and Plaintiff presumed that Robert Brady would be taking his position. Plaintiff then contacted Commission Chairman Mitchell Rubin to ask if Robert Brady's position would be available. Chairman Rubin informed the Plaintiff that Robert Brady's position was not available but that there might be another position for which Plaintiff was qualified. (Id. at ¶ 5; Pl.'s Resp. to Def.'s Statement of Material Facts ("Pl.'s Resp."), Doc. 61-2, at ¶ 5). Plaintiff denies that he contacted any other individual at the Commission to see if there was an open position. (Pl.'s Resp., at ¶ 5).

         On October 22, 20');">2008, Savage was offered the position of Regional Office Coordinator at the Eastern Regional Office ("ERO"), reporting to Robert Brady. In that position, Plaintiff oversaw purchasing for the ERO and managed the ERO's fleet of "pool cars" for employees that needed to travel for work. (DSOF, at ¶ 6).

         While employed in that position, Savage signed and acknowledged receipt of the employee handbook, which he described as "the rules of being an employee of the Pennsylvania Turnpike Commission." (Id. at ¶ 7). The handbook included the following statement:

Policy Letters
The attached list contains those policy letters in effect at the time of publication of this Employee Handbook. Policy letter are regularly updated. All policies are available for review on the Commission's intranet.
If there is any difference between the handbook and the policy letter, the policy letter governs. It is the employee's responsibility to be aware of and familiar with any changes and updates to existing policies and the addition of any new policies.
As an employee of the Commission, you are expected to adhere to Commission policies. Violators of these policies will be disciplined accordingly.

(Pennsylvania Turnpike Commission Employee Handbook, Doc. 54-8, Ex. 1).

         In the 20');">2011 election, Savage sought to win his seat back on the Philadelphia City Council. Plaintiff decided in January of 20');">2011 that he wanted to take a leave of absence to pursue campaign activities full time. (DSOF, at ¶ 8). Savage first inquired with his direct supervisor, Brady, and learned that for any leaves of absence over ten days, he would need to seek approval from human resources. (Id. at ¶ 9).

         On January 3, 20');">2011, the Plaintiff called and then emailed Doreen McCall, the Commission's Chief Counsel. In pertinent part, Plaintiff's email to McCall stated:

This spring, 20');">2011, I will be a candidate for City Council in the City of Philadelphia. Confirming our conversation, it is my understanding that I can remain an employee of the PTC as long as I do not take part in any political activity during work hours at the PTC.

         (Doc. 54-8, Ex. 2).

         At the time Savage wrote this email to Doreen McCall, the Commission's Code of Conduct (Policy Letter 3.10) did not prohibit employees from running for office. The Code of Conduct only prohibited Members or Executive-Level Employees (other than the Secretary of Transportation) from being "a Public official or Party Officer" in the State. (DSOF, at ¶11).

         McCall responded to Savage's January 3, 20');">2011 email, stating that "[b]ased on the facts as provided to me, the Commission's Code of Conduct would not prohibit you from running for political office." (Doc. 54-8, Ex. 2). McCall further stated that based on Plaintiff's job duties, he was unlikely to be considered as an "Executive-Level Employee" and that, because his position did not involve programs funded with federal money, the federal Hatch Act would not apply. (DSOF, at¶ 12).

         Savage thereafter requested, and was granted, a 45 day leave of absence. (Id. at ¶ 13) (seea/so, Doc. 54-8, Ex.4).

         Savage lost his election bid for Philadelphia City Council. He returned to work at the Commission in the same position he had held before. (Id. at ¶ 15).

         In February, 20');">2013, Mark Compton started as the Commission's new CEO. Compton had previously been employed as Deputy Secretary for Administration at the Pennsylvania Department of Transportation ("PennDOT"). (Id. at ¶ 16).

         In March of 20');">2013, Pennsylvania's Attorney General released a presentment accusing several former Commission employees of various forms of corruption. (Id. at ¶ 17). Savage admits that the presentment accused several executives and managers of illegal procurement practices, citing to Compton's deposition. (Pl.'s Resp., at ¶ 17). During Compton's deposition, he explained that "[t]he presentment was about procurement practices within the Commission. It was also about one or two of the employees' lost time, ghost employee type stuff." (Dep. of Compton, at 60:3-7). Compton further explained that "[i]t was political givings through different vendors and things like that as well." (Id. at 62:9-11). Plaintiff denies that the presentment "implicated the issue of Commission employees running for office or otherwise engaging in political activities", again citing to Compton's deposition. (Pl.'s Resp., at¶ 17).

         The presentment named, among others, the Commission's former CEO, Joe Brimmeier, and a former Commissioner, Mitchell Rubin. (DSOMF, at ¶ 18).

         The Commission asserts that, in the wake of the presentment, it charged Mark Compton with reviewing all of the Commission's policies and implementing a series of reforms, both to prevent employees from engaging in similar wrongdoing in the future and to clean up the public's perception of the Commission. (DSOF, at¶19). In response, Plaintiff admits "only that Mr. Compton was charged with a review of Commission policies that arose from the allegations in the presentment relating to procurement policies." (Pl.'s Resp., at ¶ 19). Savage denies that the directive dealt with policies relating to employees running for office.

         On Marchl8, 20');">2013, the Commission issued a press release entitled "PA Turnpike CEO Announces Additional Reforms to Operations." (Doc. 54-8, Ex. 5). In the release, CEO Compton detailed the steps the Commission planned on taking, including "conven[ing] a special advisory group to review and critique current Turnpike policies and procedures relating to contracting and other business practices to see where continued improvements can be made and to research best-practices at comparable agencies to learn from their experience and protocols." (Id.; see also, DSOF, at ¶ 20');">20).

         The Commission's Advisory Committee consisted of the Honorable Maureen Lally-Green, a retired Pennsylvania Superior Court judge, M. G. Patel, former Chief Engineer at PennDOT, and Professor John L. Gedid, Professor and Vice-Dean of Widener University School of Law. (DSOF, at ¶ 21). While Plaintiff acknowledges the appointment of an Advisory Committee, he responds that the Advisory Committee Report set forth only recommendations to "minimize or eliminate undesirable practices cited in the presentment and did not recommend that any change be made to the policy prohibiting employees from holding public office." (Pl.'s Resp., at ¶ 21).

         The Commission CEO Compton requested that Stacia Ritter, Director of Government Affairs for the Commission at that time, conduct research about the different kinds of codes of conduct in effect at other Pennsylvania government agencies. (DSOF, at ¶ 23). According to Defendant, Ritter responded in April, 20');">2013, by providing a detailed chart describing the policies in place under the rules of the House of Representatives and Senate, the Governor's Code of Conduct, State Executive Order 1980-18, and the Gaming Board's Code of Conduct. (Id. at ¶ 24). Plaintiff denies the Defendant's statements made in paragrap. 24, asserting that the "detailed chart" cited by Defendant is unreadable. Although Plaintiff and Defendant agree that Stacia Ritter also produced a memorandum, the parties disagree as to whether the memorandum, and specifically the page designated PTC001825 (Doc. 54-9, Ex. 7), addresses any issue related to political activity. (DSOF, at ¶ 25;Pl.'s Resp., at ¶ 25).

         In June 20');">2013, in-house attorneys at the Commission met with outside counsel who were retained to advise the Commission about making changes to the Commission's Code of Conduct. (DSOF, at ¶ 26).

         By the summer of 20');">2013, the Commission was reviewing its policies to determine whether they needed to be updated and the Commission had convened the Advisory Committee to further vet the Commission's policies. (Id. at ¶ 27).

         With respect to the addition of a policy that would prohibit employees from running for office while employed at the Commission, Compton testified that implementing this new policy was his idea, explaining:

[M]y biggest fear is that the Senate or the House would ask us to house somebody in order for them to run for office. I didn't want us to be the housing entity for anyone to hang out to run for office. I wanted to have really the same process in place that I knew at PennDOT.

         (Dep. of Compton, at 71:20');">20-72:3; DSOF, at ¶ 28). Compton also explained that, before he started his position at the Commission, "someone" at the Commission had run for "district magistrate or district justice" in western Pennsylvania. That individual was elected and thus preparing to leave the Commission, which prompted Compton to think about the Commission's policy in that regard. (Dep. of Compton, at 63:21-64:20');">20; DSOF, at ¶ 29).

         It is undisputed that on or around September 26, 20');">2013, a draft of the new Code of Conduct was proposed and discussed in executive session with the Commissioners. (DSOF, at ¶ 30). However, Plaintiff asserts that "the September 27, 20');">2013 draft of the Code of Conduct did not include any prohibition against Commission employees running for public office." (Pl.'s Resp., at ¶30).

         A revised proposed Code of Conduct was presented at the October 11, 20');">2013, Commission meeting. (DSOF, at ¶ 31). Plaintiff notes that this revised draft also did not contain any prohibition against Commission employees running for public office. (Pl.'s Resp., at ¶ 31).

         On November 1, 20');">2013, the Commission was presented with another revised proposal. The November 1, 20');">2013, version of the proposed Code of Conduct included, for the first time, a resign-to-run provision. (See Doc. 54-10, Ex. 15). Plaintiff asserts that "this provision was added a week after Plaintiff's October 23, 20');">2013 fundraiser and Senator [Vincent] Hughes' unsuccessful attempts to threaten the hosts of that fundraiser into withdrawing their support for Plaintiff's candidacy, and was added during the same time period in which [Commissioner Pasqual] Deon met with Senator Hughes and was called into a private meeting with Senator [Christine] Tartaglione." (Pl.'s Resp., at ¶ 32).

         During the January 7, 20');">2014, meeting of the Commissioners, the Commission unanimously passed the revised Code of Conduct. (DSOF, at ¶ 33). The minutes of the Commission's January 7th meeting address the approval of the revised Code of Conduct under "New Business", under the subheading "Payment of Invoice", as follows:

Motion - That the Commission approves the revisions to Policy Letter 3.10, Code of Conduct, to expand the policy to create a more comprehensive Code of Conduct for Commission employees - was made by Commissioner Logan, seconded by Commissioner Deon, and passed unanimously.

         (Doc. 54-11, Ex. 17).

         The Code of Conduct adopted on January 7, 20');">2014, contains the following subsection 9.3 in Section IX ("Public Office and Party Affiliation"):

No Executive-Level employee or Employee shall be a candidate for nomination or election to any State or Federal Office unless he or she shall have first resigned from his or her employment with the Commission. State Office shall be deemed to include the following offices in the Commonwealth of Pennsylvania: Governor, Lieutenant Governor, Attorney General, Auditor General, State Treasurer, Senator and Representative in the General Assembly, and Judge or Justice of any Court of the Commonwealth, including Magisterial District Court and Municipal Court. Federal Office shall be deemed to include Senator and Representative in the United States Congress.

(Doc. 54-11, Ex. 16).

         The Advisory Committee reviewed the revised Code of Conduct as part of its 18-month review process and "commended the Commissions' [sic] substantial reform efforts" in its final report, (Id. at ¶ 37).

         On January 7, 20');">2014, the Commission's Chief Operating Officer, Craig Shuey, sent representatives of the three unions representing Commission employees a copy of the new Policy Letter 3.10, indicating it would be effective as of January 22, 20');">2014. (DSOF, at ¶ 36). On January 27, 20');">2014, the new Code of Conduct was posted in the "Document Library" section of the Commission's Intranet and Extranet. (Id. at ¶ 38). Savage testified that although he knew there was a "Document Library" page on the Intranet, he did not recall if he looked at it in 20');">2014. (Id. at ¶ 39).

         With respect to the update to the Code of Conduct, Patricia Schlegel, the Commission's director of human resources, explained:

[T]he legal department was responsible for publishing it and it was published in the document section of intranet. It was not in the policy part of intranet because there were issues with an unrelated part of the Code of Conduct regarding personal leave. And those issues had to be resolved before it was put under the policy letters.

(Dep. of Schlegel, at 24:21-25:5).

         The Commission asserts that the new Code of Conduct was further disseminated to employees beginning on January 31, 20');">2014, when the Commission's attorneys, Al Peters and John Dwyer, began providing mandatory training sessions to employees with respect to the revisions. (DSOF, at ¶ 41). Savage, while admitting that "some employees received the email referred to in Paragraph 41 of Defendant's Statement of Material Facts and some attended the referenced training, " denies that "all employees received that email or that Plaintiff was sent the email or were aware of its contents." (Pl.'s Resp., at ¶ 41). Further, Savage denies that he was invited to attend the referenced training. (Id.). Plaintiff similarly denies Defendant's statement of material facts relating to what occurred during the training session, again stating that while "it is admitted that some employees received the e-mail referred to in Paragraph 41 of Defendant's Statement of Material Facts and some attended the referenced training, it is denied that all employees received that email or that Plaintiff was sent the email or were aware of its contents." (Id. at ¶¶ 42, 43).

         In response to the Commission's statement of fact that "Plaintiff was aware of the training session and had heard rumors about a new policy being passed, but he decided to not directly ask Brady or the legal department about the rumor of a new policy", Savage admits "only that Plaintiff heard rumors about a policy being passed because people at the Commission were not happy with Plaintiff running for State Senate, that Plaintiff was aware that training sessions were being held, and that Plaintiff did not ask Brady or the legal department about the rumor." (DSOF, at ¶ 46; Pl.'s Resp., at ¶ 46).

         Savage was interviewed by a local newspaper reporter, Tom Waring, about Savage's intention to run for State Senate in the Second Senatorial District. The article appeared on February 12, 20');">2014. (DSOF, at ¶ 48; Pl.'s Resp., at ¶ 48). Savage however denies that he gave the following quote to Waring attributed to him in the article: "Due to the code of conduct of my job, I cannot announce my candidacy or take any public endorsements." (Id.). Nonetheless, Plaintiff admits that paragraph 50 of Defendant's Statement of Material Facts accurately reflects Mr. Waring's deposition testimony that "although he does not specifically recall taking this interview, he took notes from his conversation and recorded it in the newspaper article within days of the conversation." (DSOF, at ¶ 50; Pl.'s Resp., at ¶ 50).

         Plaintiff understood that the previous version of the Code of Conduct did not prohibit employees from running for office. (DSOF, at ¶ 49).

         It is undisputed that Savage testified that he informed co-workers at the Commission of his impending run in June 20');">2013. Plaintiff then held his first "kickoff" fundraiser in July 20');">2013, however Plaintiff claims that he had not yet obtained signatures or filed his petition to become a candidate at that time because he viewed state law as specifying a time frame when he could do so. (DSOF, at ¶ 51; Pl.'s Resp., at ¶ 51). Commission CEO Compton and Commission COO Shuey became aware that Savage was considering a potential run in the summer of 20');">2013. (DSOF, at ¶ 52).

         On or about March 7, 20');">2014, Savage approached his immediate supervisor, Robert Brady, to inform him that he intended to seek a 45-day leave of absence to permit him to devote more time to campaigning. (Id. at ¶ 53). Savage admits that Brady emailed his version of the conversation he had with Plaintiff to Patricia Schlegel but denies that the conversation contained any statement by Brady regarding the implications of the new Code of Conduct. (DSOF, at ¶ 54; Pl.'s Resp., at ¶ 54).

         Plaintiff also admits that on March 10, 20');">2014, he sent a letter to Human Resources formally requesting the leave of absence and that he referred to Doreen McCall's approval of a similar leave in 20');">2011. (Pl.'s Resp., at ¶ 55). Savage filed his petitions that same day. (DSOF, at ¶ 56; Pl.'s Resp., at ¶ 56). Although Plaintiff admits that he filed his petitions to become a candidate on March 10, 20');">2014, he denies that he was not a candidate for office before that date. (Pl.'s Resp., at ¶ 56).

         Plaintiff further admits that on March 13, 20');">2014, Schlegel addressed a letter to Savage stating:

         Dear Mr. Savage:

It has come to our attention that you have filed the necessary documents to have your name appear on the ballot for elective office in the May 20');">20, 20');">2014 primary election. You have filed to run for Pennsylvania Senate.
On January 7, 20');">2014, the Commission approved revisions to Policy Letter 3.10 (Code of Conduct), which, among other things, prohibit employees from being a candidate for nomination or election to any State or Federal Office unless he or she resigns from Commission employment. Robert Brady specifically informed you of the policy changes and advised that they would be applicable to you should you choose to run for State office.
Contrary to your understanding, the fact that revisions to a Policy Letter have not been updated on the Turnpike Intranet does not affect its validity. Likewise, the Commission is not required to obtain your signature as to your agreement or disagreement with any policy letter. Any change to any policy is within the sole discretion of the Commission.
Therefore, should you decide to remain a candidate for Senate, you must resign your position within ten (10) days of the date of this letter or your employment with the Commission will be terminated.

(Id. at ¶58; Doc. 54-12, Ex.28).

         Savage has admitted that neither Schlegel nor Compton testified that he would be fired even if he withdrew from the Senate race. (Pl.'s Resp., at ¶ 60). However, Plaintiff further states that "no Turnpike official assured Plaintiff that, if he withdrew from the senate race, his employment would not be terminated." (Id.). Nonetheless, Plaintiff admits that he "did not directly seek that assurance." (Id. at ¶ 61).

         On March 20');">20, 20');">2014, Plaintiff responded to the March 13, 20');">2014 letter sent to him by Schlegel. That letter in part states:

It is clear that I have been unfairly and unlawfully made a target for retaliation for exercising my First Amendment Rights. The coercive demand for me to withdraw as a candidate for office as quid pro quo is also clear evidence of the true illegal and improper purposes of these actions by you, the Commission, and those acting in concert with it.

(Doc. 54-12, Ex.29).

         On March 24, 20');">2014, Schlegel sent Savage a letter terminating his employment for violating § 9.3 of Policy Letter 3.10. (Doc. 54-12, Ex. 30). The letter was preceded by the March 24, 20');">2014, approval for termination given by Compton to Schlegel, and signed by Compton on March 26, 20');">2014. (Doc. 54-12, Ex. 31). Plaintiff admits that Schlegel sent him a termination letter on March 24, 20');">2014 and that Compton approved the termination of Plaintiff's employment on March 26, 20');">2014. (Pl.'s Resp., at ¶ 64). Plaintiff further admits that at a meeting of the Commissioners on April 1, 20');">2014, the Commissioners unanimously approved Savage's termination of employment. (DSOF, at ¶¶ 65, 66; Pl.'s Resp., at ¶¶ 65, 66).

         Savage and the Commission present sharply divergent views with respect to the existence or absence of evidence of any political retribution by the Commission against Plaintiff. Thus, Plaintiff does not admit and specifically disputes the statements set forth in paragraphs 66, 67, 68, 69, 70 and 72 of the Defendant's Statement of Material Facts.

         Plaintiff does admit that Senator Tartaglione requested that Commissioner Deon meet with her in a private meeting but denies that Deon and Tartaglione in their deposition testimony confirmed that they did not discuss Plaintiff's candidacy for Tartaglione's seat during that conversation. (DSOF, at ¶ 73; Pl.'s Resp., at ¶ 73). Plaintiff admits that Senator Tartaglione testified that she had supported Plaintiff in his 20');">2011 campaign for City Council and that she "had no knowledge of the regulations or 'inner workings of the Turnpike. And that's something that's not on my radar'" (Id. at ¶ 74). Senator Tartaglione also testified that she did not have a discussion with Deon concerning Savage and that she had no discussion with anyone on Deon's behalf, or representing or associated with Deon, concerning Savage; that she had no discussion with anyone from the Turnpike Commission concerning Savage; and that she never asked anyone at the Turnpike to take action with respect to Savage. (Id. at ¶ 75).

         Plaintiff admits that "[d]uring discovery, Plaintiff has focused extensively on phone calls that Senator Hughes made to some of Plaintiff's supporters 'telling them that he did not want them to raise money for Plaintiff's Senate campaign or to otherwise support Plaintiff's campaign.'" (Id. at ¶ 77).

         Plaintiff further admits that "Senator Hughes testified that, although he knew who Plaintiff was, i.e., that Plaintiff was considering running against Senator Tartaglione, he had "no recollection of 'knowing where [Plaintiff] was employed, ' if anywhere." (Id. at ¶ 78).

         Plaintiff also admits the accuracy of Defendant's description of Senator Hughes deposition testimony wherein Senator Hughes testified that he made telephone calls to several of Savage's campaign donors and explained that he supported Senator Tartaglione because she is "[a] good Senator, a good member of our caucus" and that he believed that "[w]hen the Democrats in the Senate are low in representation, are not in the majority, why would we want to have a Democratic primary fight when those resources could be used for the general election in other races where Democrats could pick up seats.'" (Id. at ¶ 79). In admitting the accuracy of Defendant's statement of Senator Hughes' testimony, Plaintiff adds "it is denied that a reasonable jury would necessarily ascribe his stated motives as credible in light of his long association with Senator Tartaglione and his support for her candidacy." (Pl.'s Resp., at ¶ 79).

         Savage denies that Senator Hughes did not impliedly make threats by the nature and tone of his phone calls, thus controverting the statements of fact set forth by Defendant at paragraphs 80, 81 and 82 of its Statement of Material Facts. (DSOF, at ¶¶ 80-82; Pl.'s Resp., at ¶¶ 80-82).

         B. Plaintiff's Counter-Statement of Material Facts

         The Commission admits paragraphs 1-7 and paragraphs 10-12 of Plaintiff's Counter-statement of Material Facts. (See Pl.'s Counter Statement of Material Facts ("PCSF"), Doc. 61-2; Def.'s Resp., Doc. 65-1). These statements are essentially repetitive of the Defendant's Statement of Material Facts in that they present historical information concerning Plaintiff Savage's employment with the Turnpike Commission, his election to a seat on the Philadelphia City Council, his resignation from employment with the Commission in November 20');">2006 in order to so serve, his unsuccessful bid to regain his seat on the Philadelphia City Council, his return to employment in a non-executive position as the Regional Office Coordinator of the Commission's Eastern Region, his receipt of the then current Code of Conduct which had become effective in October of 20');">2007 which did not prohibit non-executive level employees from running for elective office in Pennsylvania state government, his decision to again run for Philadelphia City Council in 20');">2011, and the email he received from Doreen McCall, Chief Counsel for the Commission, on January 3, 20');">2011, which stated that he would not be prohibited from running for political office and warned him that he was restricted from engaging in political activity during business hours as well as from using Commission resources and equipment for campaign purposes. Likewise, Plaintiffs counter-statement confirms that Savage requested a leave of absence so that he could devote more time to his campaign, that this leave was approved by COO Shuey and confirmed by Human Resources Director Schlegel, and finally, that Plaintiffs 20');">2011 campaign was unsuccessful and he returned to his position with the Commission in May 20');">2011. (Id. at ¶¶ 1-7, 10-12).

         Paragraph 13 of Plaintiffs counter-statement of facts asserts the following:

In or about March 20');">2013, Plaintiff began considering seeking the Democratic Party nomination for the position of State Senator for the Second Senatorial District, a seat that was and is held by Senator Tartaglione, and was quoted by the local press that he believed "there are several factors that could help him defeat the incumbent." [Northeast Times article dated March 27, 20');">2013, P-20');">20, p. 2] In that same article, Senator Vincent Hughes, minority party chair of the powerful Appropriations Committee of the Pennsylvania State Senate voiced his support for the sitting Senator "that begins with making sure that we are all there for Sen. Tartaglione." [P-20');">20, p. 1].

         (PCSF, at ¶ 13). The Commission responds to this statement with an objection, arguing that "the cited newspaper article is inadmissible hearsay." (Def.'s Resp., at ¶ 13).

         Federal Rule of Civil Procedure 56(c)(2) expressly provides that a party may object that evidence offered to support or oppose summary judgment cannot be presented in an admissible form. That objection may be raised in a specific motion to strike, but may also be raised in a response or reply papers. 1 Moore's Federal Rules Pamphlet § 56.5 [2][a] (Matthew Bender) (20');">2018).

Hearsay statements that would be inadmissible at trial may not be considered for purposes of summary judgment. Cf. Shelton v. Univ. of Med. & Dentistry of N.J., 20');">20');">223 F.3d 220');">20, 223 at n. 2 (3d Cir. 20');">2000) ("In this circuit, hearsay statements can be considered on a motion for summary judgment if they are capable in admission at trial.").

Smith v. City of Allentown, 589 F.3d. 684, 693 (3d Cir. 20');">2009).

         Defendant cites to James v. Tri-Way Metalworkers, Inc., 189 F.Supp.3d. 422, 429 (M.D. Pa. 20');">2016) in support of its objection. Defendant's reliance on James at this stage of the proceedings is unavailing. In James, this Court stated:

A non-moving party need not "produce evidence in a form that would be admissible at trial in order to avoid summary judgment." Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Rather, the evidence may be considered if it can be reduced to admissible evidence at trial. Id. at 327, 106 S.Ct. 2548. Thus, hearsay statements must be capable of admission at trial in order for a court to consider them on summary judgment. Shelton v. Univ. of Med. & Dentistry of N.J., 20');">20');">223 F.3d 220');">20, 223 n.2 (3d Cir. 20');">2000). Hearsay will be inadmissible absent falling within a hearsay exception established in Fed.R.Evid. 803 and 804, satisfying the residual hearsay exception found in Rule 807, or being considered non-hearsay under rule 801(d). In the case of hearsay within hearsay, each part of the combined statements must conform with an exception to the rule against hearsay in order to avoid exclusion. Fed.R.Evid. 805. A proponent of the evidence at issue has the burden of establishing that it is admissible. Pittsburgh Press Club v. U.S., 579 F.2d 751, 758 (3d Cir. 1978).

Id. at 432-433.

         Although the Court declines to rule on the admissibility of the Northeast Times article as well as the statements contained in it, at trial, both the Plaintiff and Senator Vincent Hughes could provide testimony on the subject matter of the article that may be admissible. Defendant's objection, therefore, is overruled insofar as it has application to this summary judgment analysis.

         In any event, paragrap. 13 also contains the statement that "[i]n or about March 20');">2013, Plaintiff began considering seeking the Democratic Party nomination for the position of State Senator for the Second Senatorial District, a seat that was and is held by Senator Tartaglione" Defendant did not admit or deny this statement and the Court thus deems it admitted.

         The Commission admits that "[i]n or about June 20');">2013, Plaintiff announced his intention to seek that Senate seat and began raising money for that campaign for the Democratic Party nomination through publicized funding events." (PCSF, at ¶ 14; Def.'s Resp., at ¶ 14).

         It is undisputed that "[o]n July 15, 20');">2013, Plaintiff announced his first fund-raising event to take place in North Wildwood New Jersey six days later on July 21, 20');">2013." [Id. at ¶ 17).

         On July 19, 20');">2013, Savage asserts that "at a fund-raising event for City Councilman Bobby Henon, Plaintiff's immediate supervisor, Robert G. Brady, shared with Plaintiff an e-mail he had received from Chief Operating Officer Shuey expressing Shuey's extreme displeasure with the July 17, 20');">2013 Philadelphia Daily News article ... and Plaintiff's announced candidacy for the Democratic nomination for State Senate." (PCSF, at ¶ 19). The Philadelphia Daily News article entitled "Trouble for Tartaglione" contains statements attributed to Savage which are critical of Tartaglione and makes reference to his planning of a political fund-raiser and intentions to challenge Tartaglione for the State Senate seat. (See Doc. 61-18, Ex. 21). In response, the Commission objects on the basis that the asserted email from Shuey "does not exist." (Def.'s Resp., at ¶ 19). For the reasons previously set forth, supra, at pages 19-20');">20, this objection is overruled solely for purposes of this summary judgment analysis. On the state of the record evidence, the Court cannot conclusively determine that Plaintiff's description of the contents of this email is barred by the best evidence rule or whether it is otherwise inadmissible as double hearsay. Federal Rule of Evidence 1004 permits the use of secondary evidence where the original has been lost or destroyed, unless the ...

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