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Javitz v. County of Luzerne

United States Court of Appeals, Third Circuit

October 10, 2019

DONNA DAVIS JAVITZ, Appellant
v.
COUNTY OF LUZERNE; ROBERT LAWTON, Individually; DAVID PARSNIK, Individually

          Argued: May 1, 2019

          On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. Action No. 3-15-cv-02443) District Judge: Honorable Robert D. Mariani

          Matthew T. Comerford Curt M. Parkins Comerford Law Donna EM Davis [ARGUED] Counsel for Appellant

          Mark W. Bufalino [ARGUED] John G. Dean Elliott Greenleaf & Dean Counsel for Appellees

          Vernon L. Francis [ARGUED] Dechert Mary Catherine Roper American Civil Liberties Union of Pennsylvania Counsel for Amicus Appellants, American Civil Liberties Union

          Before: RESTREPO, PORTER, and FISHER, Circuit Judges.

          OPINION

          RESTREPO, CIRCUIT JUDGE.

         Donna Davis-Javitz ("Javitz") was hired as the Director of Human Resources for Luzerne County. Shortly into her tenure, she was allegedly the victim of an illegal recording by a public employee in her role as local union representative. After reporting this crime, Javitz's relationship with her employer became rocky, and she was subsequently fired. She now alleges that her firing was unconstitutional under the First Amendment and, alternatively, under the Fourteenth Amendment's Due Process Clause. The District Court ruled against Javitz on both claims. For the reasons that follow, we will affirm the District Court's due process ruling, but will reverse and remand its First Amendment ruling.

         I.

         In July 2014, Javitz was offered a position with Luzerne County as the Director of Human Resources. Her offer letter contained the terms of her employment, and described the job as: "Management Level, Non Union, Exempt, Regular Full Time," and that her position was "at will." AI[1] 57 ¶ 24-25 (emphasis added). Javitz signed and accepted the offer, and began employment on August 4, 2014.

         As Director of Human Services, Javitz was responsible for-among other duties- commencing the hiring process for vacant positions, negotiating contracts, dealing with employee complaints, responding to grievances, conducting investigations, and attending meetings. Once she began work, Javitz participated in two investigatory meetings with the American Federation of State, County, and Municipal Employees ("AFSCME"), which eventually resulted in ASFSCME filing an unfair labor practices suit in March 2015.

         A. Javitz's Allegations of Wiretapping

         Javitz claimed that a document filed in the ASFSCME lawsuit was a transcript of the investigatory meetings in which she participated. She suspected that a specific county employee, AFSCME union representative Paula Schnelly, had recorded the meeting without Javitz's consent-a crime under 18 Pa. Cons. Stat. § 5703.

         Javitz reported her concern to her supervisor, David Parsnik, who agreed that the meeting may have been recorded. The two met with the District Attorney, who indicated that she would refer the matter to the Office of the Attorney General due to a conflict of interest. Javitz claims that the County Manager, Robert Lawton, intervened and instructed the District Attorney to drop the matter, which Defendants deny.

         After reporting the matter, Javitz followed up with Parsnik and the County Solicitor about the status of the investigation multiple times.

         After making this report to the District Attorney, Javitz alleges that county employees retaliated against her. She claims that her supervisor assigned work directly to her subordinates and cut her out of those and other assignments for which Javitz would have otherwise been responsible. She also cites her ...


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