United States District Court, E.D. Pennsylvania
FRANK OLIVER, JR. et al., Plaintiffs,
REBECCA RHYNHART, Defendant.
of 2017, Defendant Rebecca Rhynhart won the Democratic
Primary for City Controller of the City of Philadelphia,
defeating incumbent Alan Butkovitz. During her campaign, she
pledged to reduce unnecessary spending in the City
Controller's Office (“the Office”) and
claimed that she would not cater to the Democratic
“Political Machine.” After winning the General
Election in November of 2017, Ms. Rhynhart assembled a
Transition Team, which was tasked with assessing the needs of
the Office and reorganizing it to cut costs. She also created
a Personnel Committee, which was responsible for downsizing
the Office and evaluating applicants and existing employees
for positions in the Office.
December 2017, the Personnel Committee decided to terminate
the employment of a number of employees, including Plaintiffs
Frank Oliver, Jr., Lopez Jones, and Lisa Plaza
(“Plaintiffs”). All three Plaintiffs are related
to individuals that have long held positions of power in the
Philadelphia Democratic Party and are considered to be part
of the “Political Machine.” After being fired,
each Plaintiff filed a separate Complaint in federal court.
(See Doc. Nos. 13-2, 13-3, 13-4.) Mr. Oliver's
Complaint, which was filed on January 23, 2018 pursuant to 42
U.S.C. § 1983,  alleges that Ms. Rhynhart fired Mr. Oliver
“because of his political affiliation” in
violation of the First Amendment to the United States
Constitution, as applied to the States through the Fourteenth
Amendment. (Doc. No. 13-2 ¶¶ 22-23.) Mr.
Jones' Complaint, which was filed on February 15, 2018
pursuant to 42 U.S.C. § 1983, similarly alleges that Ms.
Rhynhart fired him because of his political affiliation in
violation of the First Amendment. (Doc. No. 13-3 ¶¶
22-24.) Ms. Plaza also filed her Complaint on February 15,
2018. Like Mr. Oliver and Mr. Jones, Ms. Plaza claims that
Ms. Rhynhart violated her First Amendment rights by firing
her as a result of her political affiliation. Her lawsuit is
also brought pursuant to 42 U.S.C. § 1983. In essence,
Plaintiffs contend that they were terminated because they are
related to members of the “Political Machine.” On
April 13, 2018, Ms. Rhynhart filed an unopposed Motion to
Consolidate the three lawsuits (Doc. No. 4), which the Court
granted on April 13, 2018 (Doc. No. 5). On May 23, 2019, Ms.
Rhynhart filed the present Motion for Summary Judgment. (Doc.
No. 13.) On June 20, 2019, Plaintiffs collectively filed a
Response in Opposition to the Motion for Summary Judgment.
(Doc. No. 14.) Finally, on July 3, 2019, Ms. Rhynhart filed a
Reply in Further Support of the Motion for Summary Judgment.
(Doc. No. 18.)
Rhynhart's Motion for Summary Judgment (Doc. No. 13) is
now ripe for disposition. For the reasons discussed
infra, the Motion for Summary Judgment will be
granted, and the Court will grant judgment in Ms.
Spring of 2017, Defendant Rebecca Rhynhart,  a Democrat,
challenged incumbent Alan Butkovitz, another Democrat, for
the position of City Controller of the City of Philadelphia.
As part of her campaign platform, Ms. Rhynhart “pledged
to audit every City department, save the City money by
focusing on best practices and modernization, commission an
outside audit of the Controller's Officer to ensure the
office is operating efficiently, improve the pension
fund's return on investment, increase the diversity of
the city's workforce, audit the Philadelphia Parking
Authority, and increase transparency in city
government.” (Doc. No. 13-1 ¶ 9.)
Rhynhart's campaign platform was tied to her pledge to
rebuke the “status quo” and not be beholden to
the “Political Machine.” (Id. ¶
93.) According to Ms. Rhynhart, the Political Machine is not
about individual people or individual ward leaders, although
they may be a part of it; rather, the term refers to the
“entrenched powers of the City, ” entrenched
interests, and the way things have always been done in City
government. (Id. ¶¶ 90-91, 96.) As part of
her effort to increase government transparency, Ms. Rhynhart
promised that, if elected, she would not cater to the
Political Machine like her opponent, Mr. Butkovitz, who
according to Ms. Rhynhart, neglected to audit the
Philadelphia Parking Authority due to his
“entrenched” interests. (Id.
connection with her statements about the Political Machine,
Ms. Rhynhart emphasized that too many City of Philadelphia
government jobs are given to unqualified applicants solely
because they know people in power. That practice, according
to Ms. Rhynhart, hurts the City's operations and costs
the City money. (Id. ¶¶ 98-99.) As a
result, Ms. Rhynhart pledged that, if elected, she would only
hire the best, most qualified applicants for the job.
(Id. ¶ 101.) Notwithstanding that pledge, Ms.
Rhynhart testified that she has “nothing against
[hiring] someone who happens to have a friend or be related
to someone, as long as they're the most qualified person
for that job.” (Doc. No. 13-8 at 19:6-10.)
Rhynhart did not receive much support from the City's
Democratic Ward Leaders; according to her deposition, of the
sixty-nine (69) Democratic Ward Leaders in Philadelphia, all
but one endorsed Mr. Butkovitz in the Primary Election. (Doc.
No. 13-1 ¶ 11.) Nevertheless, on May 16, 2017, Ms.
Rhynhart defeated Mr. Butkovitz by winning the Democratic
Primary. (Id. ¶ 10.) On November 6, 2017, Ms.
Rhynhart prevailed in the General Election and was elected
City Controller. (Id. ¶ 12.) During that
election, Ms. Rhynhart was endorsed by all sixty-nine
Democratic Ward Leaders. (Id. ¶ 13.)
winning the General Election, Ms. Rhynhart assembled a
Transition Team to study the structure and staff of the
Controller's Office (the “Office”) and to
evaluate what changes needed to be made to the Office before
she was sworn-in as City Controller in January 2018.
(Id. ¶ 16.) She also created a Transition
Report to document her plan for the Office. (Id.
Transition Team included a Personnel Committee, which was
tasked with determining the staffing needs of the Office
under Ms. Rhynhart's control. The Personnel Committee was
headed by Kellan White,  who was also the Director of the
Transition Team, and Heather Steinmiller. Before working in
the City Controller's Office, Mr. White worked on
numerous political campaigns and served as the campaign
manager for the committee to elect Ms. Rhynhart and the
political director of Ms. Rhynhart's campaign.
(Id. ¶ 104.) He is the son of John White, Jr.,
who is the former Ward Leader of the Democratic Party's
50th Ward and the former Pennsylvania Secretary of
Welfare. (Id. ¶ 106.) According to Mr. White,
he was the final decisionmaker ultimately responsible for the
hiring and firing of the Office's employees.
(Id. ¶¶ 19-22.) Although Ms. Rhynhart was
the City Controller-elect, both she and Mr. White testified
that she did not play a role in hiring or firing low-ranking
members of the Office. (Id. ¶¶ 17-18.)
Personnel Committee was charged with reorganizing the Office
to promote efficiency and to reduce wasteful spending.
According to Mr. White, this meant downsizing the number of
exempt employees working in the Office. (Doc. No. 13-5 at
12:5-16, 50:3-11.) An exempt employee is a government
employee that is exempt from civil service status. The
majority of City of Philadelphia government jobs are governed
by the City Civil Service System. As part of this system,
applicants take the City's Civil Service Examination and
are placed on an eligibility list according to their
examination scores, credentials, and other factors. When a
vacancy arises for a civil service position, the government
must fill that position through the civil service eligibility
list. A limited number of City of Philadelphia government
jobs are exempt from the civil service system, meaning that
the government does not need to hire from the civil service
eligibility list to fill that position. According to Mr.
White, exempt employees are also at-will employees-that is,
their employment can be terminated at any time at the
discretion of their supervisor. (Id. at 12:5-16.)
to the General Election, there were forty-one (41) exempt
employees working in the City Controller's Office.
Consistent with Ms. Rhynhart's stated goal of reducing
the number of exempt employees in the Office, only sixteen
(16) of those exempt employees were retained by the Rhynhart
administration. (Doc. No. 13-1 ¶¶ 34-35.)
Plaintiffs Frank Oliver, Lopez Jones, and Lisa Plaza were
among the number of exempt employees that were not retained.
restructure and downsize the Office, the Personnel Committee
considered the resumes and cover letters of new applicants
and existing employees. (Doc. No. 13-5 at 12:8-16.) The
Personnel Committee also conferred with Office supervisors to
discuss employees' performances. These supervisors
included Christy Brady, John Thomas, and Jeff Hornstein.
(Doc. No. 13-1 ¶ 27.) Additionally, the Personnel
Committee worked with Harvey Rice, who had once served as
First Deputy City Controller under Mr.
Butkovitz. (Id. ¶ 26.)
on conversations with Mr. Rice and the current Office
supervisors, the Personnel Committee developed a spreadsheet
that reflected the supervisors' views on existing
employees. (Id. ¶ 29; Doc. No. 13-13.) This
spreadsheet listed the employee's, position, current
salary, and comments from supervisors. Some of the comments
noted whether the employee was politically connected.
(See Doc. No. 13.)
Personnel Committee also created a separate spreadsheet that
listed all candidates for positions in the Office, including
all existing employees and all new applicants. (Doc. No. 13-1
¶ 31; Doc. No. 13-14.) This spreadsheet listed each
applicant's name, whether they were currently employed at
the Office, and whether the Personnel Committee recommended
that the applicant be interviewed. The spreadsheet also
contained notes about certain applicants, including
information about job history and whether the applicant was
politically connected. (See Doc. No. 13-14.)
According to this spreadsheet, the Personnel Committee did
not recommend interviewing Plaintiffs for positions in the
new administration. (Id.) During his deposition, Mr.
White testified that Ms. Rhynhart was given these
spreadsheets as they were updated in order to keep her
apprised of the Personnel Committee's progress. (Doc. No.
13-5 at 48:18-22.)
noted above, during the Transition Period, the Personnel
Committee decided not to retain a number of exempt employees,
including Plaintiffs Frank Oliver, Lopez Jones, and Lisa
Plaza. According to Ms. Rhynhart and Mr. White, the decision
to terminate Plaintiffs' employment was based on numerous
factors, including Plaintiffs' credentials,
supervisors' recommendations, and the need to restructure
the Office. (Doc. No. 13-1 ¶ 102; Doc. No. 13-5 at
she was the City Controller-elect, Ms. Rhynhart testified
that she did not play a role in firing low-ranking members of
the Office like Mr. Oliver, Mr. Jones, or Ms. Plaza; rather,
she only had a hand in hiring or firing “four or five
high-ranking positions in the [O]ffice.” (Doc. No. 13-1
¶¶ 17-18.) Instead, Mr. White, the Chair of the
Personnel Committee, had the final say as to whether the
Office would retain the three Plaintiffs. Still, there is
evidence that Ms. Rhynhart knew that the Personnel Committee
had decided not to retain Plaintiffs. As noted above, Ms.
Rhynhart was sent the Personnel Committee spreadsheets, which
listed whether the Committee recommended that an applicant be
interviewed. In addition, Ms. Rhynhart was copied on a
December 20, 2017 email from Mr. White to another member of
the Transition Team, which contained a list of exempt
employees, including Plaintiffs, that the Personnel Committee
decided not to retain. (See Doc. No. 15 at 31.)
background and termination of each Plaintiff follows.
Plaintiff Frank Oliver
Frank Oliver began working in the City Controller's
Office in January 2008. (Doc. No. 13-1 ¶ 1.) Although he
was initially hired as an investigator, he soon transitioned
into working in the Office's Records Room. (Id.
¶ 39.) At the time of the General Election, Mr. Oliver
considered himself to be the supervisor of the Records Room.
In that capacity, he was responsible for assigning work to
his three subordinates. (Id. ¶ 40.) Mr. Oliver
was an exempt, at-will employee, meaning that he was exempt
from civil service status and could be terminated at any time
at the discretion of his supervisor. (Id.
here, Mr. Oliver is the son of Frank Oliver, Sr., who at the
time of the 2017 Democratic Primary and the General Election,
was the Treasurer of the Philadelphia County Democratic City
Committee and the elected leader of the Philadelphia
Democratic Party's 29thWard. (Id.
¶ 58.) Frank Oliver, Sr. also served in the Pennsylvania
House of Representatives for thirty-seven (37) years. (Doc.
No. 13-16 at 29:13-16.) Mr. Oliver's father did not
support Ms. Rhynhart in the 2017 Democratic Primary for City
Controller; instead, he endorsed Mr. Butkovitz, the
incumbent. (Doc. No. 13-1 ¶ 59.) In her deposition, Ms.
Rhynhart admitted that she considered Frank Oliver, Sr. to be
a member of the Philadelphia Political Machine. (Doc. No.
13-8 at 12:5-14.)
December 14, 2017, Mr. Oliver was informed via phone call
that he would not be offered a position with the new
administration and that his employment with the Office would
end on January 2, 2018. (Doc. No. 13-1 ¶¶ 41-42.)
On December 20, 2017, Mr. White sent Mr.
a formal termination letter, which stated the following:
Thank you for your interest in serving in the
Controller's Officer under Controller-Elect Rhynhart. We
wanted to provide in writing what was stated during our
December 14, 2017 phone call. We have reviewed your resume
and qualifications in the context of our plan for
reorganization of the office, and unfortunately, we will be
unable to offer you a position in the new administration.
Accordingly, we have determined that you will be separated
from City employment effective January 2, 2018.
(Doc. No. 13-18.) According to Mr. White, Mr. Oliver was not
replaced; rather, his responsibilities have been consolidated
and assigned to other employees in the Records Room.
(Id. ¶ 43.)
deposition, Mr. Oliver testified that at first, he believed
that he was not retained because Ms. Rhynhart “was
going in a different direction.” (Doc. No. 13-16 at
26:2-5.) But a few weeks after the termination, he read
several newspaper articles that said “Frank Oliver,
ward leader's son was terminated” and came to
believe that he was fired due to his father's political
activity. (Id. at 26:12-21.) Notwithstanding this
belief, Mr. Oliver admits that he is unsure whether Ms.
Rhynhart had anything to do with the decision to fire him.
(Id. at 26:12-21.) In fact, he concedes that he has
never met or spoken with Ms. Rhynhart; he also concedes that
he is unsure whether Ms. Rhynhart knew his father or ever
connected him with his father. (Id. at 30:7-20.) In
addition, Mr. Oliver testified that he is not political and
is not involved in local politics.
voted for Mr. Butkovitz, but otherwise did not campaign for
him due to his employment in the City Controller's
Office. (Id. at 30:2-23, 43:1-16.)
Mr. Oliver thinks that the termination had something to do
with Harvey Rice, the former First Deputy under Mr.
Butkovitz, who consulted with the Personnel Committee during
the Transition Committee and supported Ms. Rhynhart during
her campaign for City Controller. (Id.) According to
Mr. Oliver, his father did not support Mr. Rice in an
unsuccessful bid for political office a number of years
earlier. (Id. at 64:1-23.) Additionally, while Mr.
Rice was still working in the Office, he investigated Mr.
Oliver for derogatory statements written on the wall in the
men's bathroom. Mr. Oliver testified that the
investigation “felt like revenge . . . after [he] found
out [his] father didn't support him . . . .”
(Id. at 49:2-5.)
to Mr. White, Mr. Oliver was not retained because the
Personnel Committee needed to downsize the Office by reducing
the number of exempt employees and because Mr. Oliver's
resume and credentials did not “make the cut.”
(Doc. No. 13-5 at 10:1-8.) Mr. White consulted with Mr. Rice
about Mr. Oliver, but is not aware whether Mr. Rice harbored
any animosity towards Mr. Oliver. (Id. at 15:1-5.)
Plaintiff Lopez Jones
Lopez Jones began working in the City Controller's Office
in October 2006. (Doc. No. 13-1 ¶ 3.) Mr. Jones'
mother-in-law, Vivian Miller, is the former Ward Leader of
the Democratic Party's 51st Ward and the
former Clerk of Quarter Sessions in
Philadelphia. (Id. ¶ 62.) According to
his deposition, Mr. Jones was hired by the City
Controller's Office in part because Ms. Miller spoke to
Mr. Butkovitz, who was the City Controller at the time, on
his behalf. (Id. ¶¶ 63-64.) The Personnel
Committee spreadsheet that was developed from conversations
with Office supervisors and senior staff notes Mr. Jones'
connection to Ms. Miller:
Mother in Law was formerly the Clerk of Quarter Sessions/Job
Function was created by JT at AB's request would
not be upset if he wasn't retained [sic]/ Job Function
can be easily dispersed among Civil Service Workers.
(Doc. No. 13-13 at 1.) This notation refers to comments from
John Thomas, one of the senior staff, who told the Personnel
Committee that Mr. Jones' position was created for him at
Mr. Butkovitz's direction. Mr. Thomas also told the
Personnel Committee that Mr. Jones' position was
unnecessary because his job responsibilities were repetitive
of work already assigned to civil service employees. (Doc.
No. 13-1 ¶ 37.) Both Mr. White and Ms. Rhynhart had
access to this spreadsheet, which noted Mr. Jones'
connection to Ms. Miller.
time of the 2017 General Election, Mr. Jones' job title
was Contract Compliance Officer. In that capacity, he was
responsible for approving capital projects in Philadelphia.
(Id. ¶ 65.) Like Mr. Oliver, Mr. Jones was an
exempt, at-will employee, meaning that he was exempt from
civil service status and that his position could be
terminated at any time at the discretion of his supervisor.
(Id. ¶¶ 4-5.)
point during the Transition Period, Mr. Jones was informed
that his job was being terminated, effective January 2, 2018.
(Id. ¶ 66.) He believes that he was fired
because Ms. Miller was about to retire from her position as
Ward Leader. (Id. ¶ 67.) On that subject, he
stated the following:
Question: Why do you believe you were not retained by Rebecca
Answer: I personally believe I was not retained because I was
a part of the old guard, the old war heroes and things of
that nature that lost their post around the time that Rebecca
was getting hired or before.
Question: So back to - you mentioned that you were part of