Wren v. County of Luzerne, et al

Filing 38

MEMORANDUM For the reasons discussed above, Defendants County of Luzerne, Maryanne C. Petrilla and Stephen A. Urbans Motion for Summary Judgment (Doc. 20) is granted in part, denied in part, and held in abeyance in part. The motion is granted insofa r as Plaintiffs First Amendment free speech claims are dismissed from Counts I and II; the motion is denied insofar as Plaintiffs First Amendment association claims in Counts I and II go forward as to the Defendants identified in each claim. The mot ion is held in abeyance on Plaintiffs age discrimination claims in Counts III and IV. A decision on these claims will be rendered following required briefing. An appropriate Order will be filed simultaneously with this motion. re 20 MOTION for Summary Judgment filed by Maryanne C Petrilla, County of Luzerne, Stephen A. Urban Signed by Honorable Richard P. Conaboy on 2/8/13. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD WREN,

:
:CIVIL ACTION NO. 3:11-CV-1769
Plaintiff,
:
:(JUDGE RICHARD P. CONABOY)
v.
:
:
COUNTY OF LUZERNE,
:
MARYANNE PETRILLA and
:
STEPHEN E. URBAN,
:
:
Defendants.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider Defendants’ County of Luzerne, Maryanne C.
Petrilla and Stephen A. Urban’s Motion for Summary Judgment (Doc.
20) filed on November 6, 2012.

Defendants filed their Statement of

Undisputed Material Facts in Support of Their Motion for Summary
Judgment (Doc. 23), Brief in Support of Their Motion for Summary
Judgment (Doc. 24), and Appendix of Exhibits (Doc. 25) on November
20, 2012.

Plaintiff filed his opposition brief (Doc. 28),

accompanied by Plaintiff’s Response to Defendants’ Statement of
Material Fact in Support of Motion for Summary Judgment and
Counterstatement of Facts (Doc. 29) on December 21, 2012.
Defendants filed Defendants’ Response to Plaintiff’s
Counterstatement of Facts (Doc. 34) and their Reply Brief in
Support of Their Motion for Summary Judgment (Doc. 35) on January
18, 2013.

Therefore, this matter is fully briefed and ripe for

disposition.

For the reasons discussed below, Defendants’ motion

is granted in part, denied in part, and held in abeyance in part.

I. Background
On July 13, 2005, Plaintiff was appointed to the position of
Director of Veterans’ Affairs in Luzerne County by former
Commissioners Gregory Skrepenak, Todd Vonderhied, and Stephen
Urban.

(Doc. 23 ¶ 5; Doc. 29 ¶ 5.)

The position of Director of

Veterans’ Affairs is a full-time, non-union position.
6; Doc. 29 ¶ 6.)

(Doc. 23 ¶

Plaintiff was offered a starting salary of

$42,000, but only took a salary between $32,000 and $33,000 because
he was receiving disability retirement benefits from Tobyhanna Army
Depot (“Depot”), which program restricts a participating retiree
from earning a salary greater than eighty percent of his base pay
of the last year of his employment at the Depot as a condition to
receiving the same level of benefit.

(Doc. 23 ¶ 7; Doc. 29 ¶ 7.)

When hired, Plaintiff was not provided with instructions on
how to perform his job.

(Doc. 28 ¶ 8; Doc. 29 ¶ 8.)

Plaintiff was

told by County Manager Sam Gusto to do what was needed to take care
of Luzerne County veterans.

(Doc. 23 ¶ 9; Doc. 29 ¶ 9.)

Plaintiff

wrote up policies (Doc. 23 ¶ 10) which he characterizes as “shop
operating policies” (“SOP”) dealing with office day-to-day
operations (Doc. 20 ¶ 10).

Whatever policies Plaintiff would have

written would have pertained to his own department and centered
around his own employees.

1

Facts.

(Doc. 29 CMF ¶ 10; Doc. 34 ¶ 10.)1

“CMF” refers to Plaintiff’s Counterstatement of Material
(Doc. 29 at 8-22.)
2

Plaintiff’s duties included, generally, 1) the management of the
office including budget preparation and control, purchasing,
equipment and maintenance; 2) ensuring compliance with current
County, federal and state veterans’ benefits; 3) supervising the
processing of all applications for veterans’ benefits, determining
eligibility and verifying the type and amount of benefits; 4)
attending meetings and conferences on veterans’ benefits; 5)
attending expositions as requested by State Representatives and
Senators in order to educate seniors on available veterans’
benefits and current laws and regulations; 6) visiting veterans’
medical hospitals and nursing homes, and the homes of veterans and
their survivors who would like to apply for disability, death
pensions, or disability compensation benefits; 7) ordering flags
and flag holders for distribution to county veterans’ organizations
for placing on gravesites; and 8) creating necessary forms for
veterans’ benefits.

(Doc. 23 ¶ 12; Doc. 29 ¶ 12.)

Plaintiff also

advised the County Commissioners concerning veterans’ issues.
(Doc. 23 ¶ 13; Doc. 29 ¶ 13.)

Plaintiff was also in charge of the

day-to-day operations of the office and supervising the staff.
(Doc. 23 ¶¶ 16-17; Doc. 29 ¶¶ 16-17.)

Plaintiff had the authority

to negotiate and enter into contracts such as a co-op agreement
with other counties for the purchase of flags.

(Doc. 23 ¶ 20; Doc.

29 ¶ 20.)
In addition to a myriad of other activities, Plaintiff

3

prepared year-end reports to measure the productivity of the office
and show the County Commissioners what the office was doing, how
the caseload was increasing and serve as a basis for requests for
more staff and more office space.
21-39.)

(Doc. 23 ¶¶ 21-39; Doc. 29 ¶¶

Regarding hiring and firing, the parties dispute

Plaintiff’s authority: Plaintiff asserts he had no input into the
decisions to hire or fire any employees but he could recommend
persons for hire; Defendants asserting that Plaintiff had input
into hiring and firing of the employees in his office and he hired
three part-time employees.

(Doc. 23 ¶ 23; Doc. 29 ¶ 23; Doc. 29

CMF ¶¶ 16-17; Doc. 34 ¶¶ 16-17.)

Plaintiff made requests to the

County Salary Board to up-grade job classifications of his current
staff and the addition of new staff members because he believed the
current staff was too small to address the needs of the County’s
aging population of 36,000 veterans and their families.

(Doc. 23 ¶

40; Doc. 29 ¶ 40.)
Defendant Petrilla testified that Plaintiff was responsible
for preparation and presentation of the annual budget for the
Office of Veteran’s Affairs, applying for and administering grants,
and for the supervision of the employees in his office, including
discipline.

(Doc. 29 CMF ¶ 8; Doc. 34 ¶ 8.)

Plaintiff had no day-to-day specific contact with individual
members of the board of commissioners with respect to setting
policies.

(Doc. 29 CMF ¶ 12; Doc. 34 ¶ 12.)

4

The parties dispute

whether Plaintiff “regularly” worked with the Commissioners and
whether he was authorized to speak on their behalf.
¶¶ 13-14; Doc. 34 ¶¶ 13-14.)

(Doc. 29 CMF

Defendants highlight an interaction

between Plaintiff and the Commissioners which occurred in October
2007.

(Doc. 23 ¶ 14.)

At that time Plaintiff told County

officials, including the County Commissioners, that the County was
going to see an increased demand on a variety of services as a
result of the number of men and women returning from combat in Iraq
and Afghanistan.

(Doc. 23 ¶ 14; Doc. 29 ¶ 14.)

Plaintiff stated

that preparedness was advisable and gave examples of what might be
done.

(Doc. 23 ¶ 15; Doc. 29 ¶ 15; Doc. 25-1 at 67-71 (Pl’s Dep.

66-70).)
One of the issues in this case concerns the County
Commissioner’s duty of ensuring that flags are purchased and placed
on gravesites each Memorial Day.

This activity was administered by

the Veteran’s Office under Plaintiff’s leadership.
Doc. 29 ¶ 45.)

(Doc. 23 ¶ 45;

Local veterans’ organizations volunteer to place

the flags and the County can reimburse them up to seventy-five
dollars ($75.00) for refreshment and meals (Doc. 23 ¶ 46),
Plaintiff adding that State law requires that Luzerne County
reimburse the veteran’s organizations (Doc. 29 ¶ 46).

Plaintiff

was responsible for authorizing the reimbursement of payments.
(Doc. 23 ¶ 47; Doc. 29 ¶ 47.)

The veteran would submit a written

receipt or written request with the amount of money spent to

5

Plaintiff and a payment authorization form would be completed and
the documentation attached, then Plaintiff would sign off on the
payment.

(Doc. 23 ¶ 48; Doc. 29 ¶ 48.)

The executed payment

authorization form and attached documents would then be sent to the
County Controller’s Office.

(Doc. 23 ¶ 50; Doc. 29 ¶ 50.)

Luzerne County authorized Plaintiff to establish his own
procedure for the utilization of receipts for the purpose of
reimbursing the coffee and doughnut expenses of veterans who
volunteer to place Memorial Day flags.
¶ 45.)

(Doc. 29 CMF ¶ 45; Doc. 34

Defendants add that Plaintiff had used the procedure used

for “40-plus years” at the office, that is, attaching a receipt to
the submission for payment authorization.

(Doc. 34 ¶ 45.)

Defendant Petrilla testified that Luzerne County has a standard in
place for acceptable receipt documentation but she did not know if
it was written down anywhere.

(Doc. 29 CMF ¶ 61; Doc. 34 ¶ 61.)

Defendant Urban testified that he did not know whether the
controller had a written policy requiring receipts for payment
requests.

(Doc. 29 CMF ¶ 62; Doc. 34 ¶ 62.)

Although the practice

was to attach a receipt, the payment request form at issue does not
require the attachment of a receipt but does require a
certification by the applicant.
63-64.)

(Doc. 29 CMF ¶¶ 63-64; Doc. 34 ¶¶

Neither the Luzerne County Administrative Code nor the

Luzerne County Personnel Policy contain provisions which apply to
the situation at issue here.

(Doc. 29 CMF ¶¶ 66-67; Doc. 34 ¶¶ 66-

6

67.)
Plaintiff had set a deadline of July 15, 2009, for the
Memorial Day flag related food reimbursements, but had the right to
change the deadline.

(Doc. 23 ¶ 50; Doc. 29 ¶ 50.)

In September

2009, John A. Brogna (“Brogna”) sought reimbursement for expenses
allegedly incurred at Perkins Restaurant on behalf of the Disabled
Veterans of America, a group which assisted with 2009 Memorial Day
cemetery decorating in the City of Pittston.

(Doc. 23 ¶¶ 51-52.)

Plaintiff adds that some of the expenses were incurred at a pizza
restaurant.

(Doc. 29 ¶¶ 51-52.)

Plaintiff states that this

receipt (for $40.00) was also misplaced.

(Doc. 29 ¶ 33.)

Perkins receipt was also reportedly misplaced.
29 ¶ 53.)

(Doc. 23 ¶ 53; Doc.

Plaintiff reportedly advised Brogna to go back to the

Perkins Restaurant and request a copy of the receipt.
54; Doc. 29 ¶ 54.)
not.

The

(Doc. 23 ¶

Brogna attempted to get a receipt but could

(Doc. 23 ¶ 55; Doc. 29 ¶ 55.)

Brogna returned to the office

with a receipt from Perkins from another day which Plaintiff
accepted and told the clerk to alter the receipt to reflect the
date of May 31, 2009, and the amount $70.00 which Brogna said was
the amount spent.

(Doc. 23 ¶ 56; Doc. 29 ¶ 56.)

The altered

receipt was then attached to the payment authorization form for
$70.00 and Plaintiff signed off on it and submitted it to the
Controller’s Office.

(Doc. 23 ¶ 57; Doc. 29 ¶ 57.)

Sharon Roke, who worked at the Veterans’ Affairs office in

7

2009 as a Clerk 2 (and had since the Fall of 2008) with duties
which included functioning as a payroll clerk (Doc. 25-7 at 8 (Pape
Dep. 7:10-18)), actually submitted the payment request at
Plaintiff’s direction.

(Doc. 29 CMF ¶ 49.)

Roke testified that

she told Plaintiff she did not think he should send the receipt.
(Doc. 34 ¶ 49.)

In answer to the deposition question of whether

“what was happening with respect to this particular Perkins
document was a violation of the law or was wrong,” Roke responded
that “[i]t wasn’t a smart move” and added “I didn’t think he was
breaking one of the Ten Commandments or anything like that.”
25-7 at 33 (Roke Dep. 32:2-7).)

(Doc.

Roke received no discipline for

submitting the payment request with the alteration, nor was she
ever told that what she had done was wrong.

(Doc. 29 CMF ¶ 53;

Doc. 34 ¶ 53.)
The altered receipt was noted by the County Controller’s
Office, and a meeting was held with Plaintiff, Chief County
Solicitor Vito DeLuca, County Manager/Chief Clerk Doug Pape, and
County Human Resources Director Doug Richards attending.
¶ 58; Doc. 29 ¶ 58.)

(Doc. 23

Plaintiff admitted to the alteration.

23 ¶ 59; Doc. 29 ¶ 59.)

(Doc.

Chief County Solicitor Vito DeLuca and

County Manager/Chief Clerk Doug Pape recommended that Plaintiff be
terminated for submitting an altered receipt for reimbursement
(Doc. 23 ¶ 60), an assertion disputed by Plaintiff as being
implausible (Doc. 29 ¶ 60).

On September 24, 2009, Defendants

8

County Commissioners Petrilla and Urban voted to terminate
Plaintiff at the public Commissioner’s meeting.
Doc. 29 ¶ 61.)

(Doc. 23 ¶ 61;

They testified that they would have taken the same

action if the amount in question had been “five cents” or “twentyfive cents.”

(Doc. 29 CMF ¶¶ 46, 47; Doc. 34 ¶¶ 46, 47.)

Pape

similarly testified–-if the payment request had been for “a dime,
it would have warranted termination.”

(Doc. 29 CMF ¶ 48; Doc. 34 ¶

48.)
Other than the initial meeting with DeLuca, Pape, and
Richards, the only contact Plaintiff had with any county employee,
officer, or official regarding this matter was a visit from a
detective of the Luzerne County District Attorney.
37; Doc. 34 ¶ 37.)

(Doc. 29 CMF ¶

No other representative of Luzerne County

government ever contacted Plaintiff.

(Doc. 29 CMF ¶ 38; Doc. 34 ¶

38.)
Defendant Petrilla testified that in 2009 and before that some
payment authorizations were paid for expenses directed to Luzerne
County without having receipts.
(Petrilla Dep. 29:3-9).)

(Doc. 29 CMF ¶ 42; Doc. 25-2 at 30

Defendant Petrilla added that these

employees did not submit false receipts; those expenses for which
they could not produce receipts they had to personally pay back to
the county.

(Doc. 29 CMF ¶ 42; Doc. 25-2 at 30 (Petrilla Dep.

29:22-25).)

These employees were not terminated.

(Petrilla Dep. 29:17).)

(Doc. 25-2 at 30

Defendant Urban made an unsuccessful

9

attempt (lack of second to his motion) to terminate involved
employees and also sought their resignation.
25-3 at 10 (Urban Dep. 30:21-25).)

(Doc. 34 ¶ 42; Doc.

At a County Prison Board

meeting, Defendant Urban made a motion to terminate former Warden
Sam Hyder and the motion was seconded by Defendant Petrilla but did
not pass.

(Doc. 34 ¶ 42; Doc. 25-3 at 10 (Urban Dep. 31:1-5).)

Urban testified that be believed Hyder was subject to termination
because of his misuse of the debit card (using the card at a Las
Vegas strip club) and his initial and subsequent denials of doing
so.

(Doc. 29 CMF ¶ 86; Doc. 34 ¶ 86; Doc. 25-3 at 10 (Urban Dep.

31:7-13).)
County Managers Sam Gusto and later Doug Pape supervised
Plaintiff during his employment as the County’s Director of
Veteran’s Affairs.

(Doc. 29 CMF ¶ 2; Doc. 34 ¶ 2.)

Pape was the county manager for Luzerne County.
Doc. 34 ¶ 3.)

In 2009, Doug

(Doc. 29 CMF ¶ 3;

Pape testified that Plaintiff had never done

anything that was insubordinate or noncompliant with Pape’s
instructions while he supervised Plaintiff.

(Doc. 29 CMF ¶ 91;

Doc. 34 ¶ 91.)
Defendant Petrilla was aware that Defendant Urban was
politically opposed to Commissioner Skrepenak in 2009.2

2

(Doc. 29

Gregory Skrepenak was the third Luzerne County Commissioner
when Plaintiff was terminated. (Doc. 1 ¶¶ 25-26.) He resigned in
December 2009 after being indicted on federal charges. http://the
times-tribune.com/news/luzerne-commissioner-skrepenak-resigns-andwill-plead-guilty-1.495143 (Dec. 13, 2009).
10

CMF ¶ 4; Doc. 34 ¶ 4.)

Defendant Petrilla testified that she had

the impression that Plaintiff was a political affiliate of Mr.
Skrepenak’s, adding that he was also a political supporter of hers
and she had no knowledge with whom Plaintiff was more closely
affiliated.

(Doc. 29 CMF ¶ 92; Doc. 34 ¶ 92; Doc. 25-2 at 8

(Petrilla Dep. 8:17-25).)

James Spagnola, who succeeded Plaintiff,

was aware that Plaintiff supported Commissioner Skrepenak
politically and was his friend.

(Doc. 29 CMF ¶ 5; Doc. 34 ¶ 5.)

Defendant Petrilla testified that political affiliation is
irrelevant to employment as the Luzerne County Director of
Veterans’ Affairs.

(Doc. 29 CMF ¶ 19; Doc. 34 ¶ 19.)

Defendant

Petrilla answered affirmatively to the question “[d]id you perform
your service as a county commissioner at that time with the belief
that the position of the Director of Veterans Affairs should be
filled without reference to political affiliation of the
candidate?”

(Doc. 29 CMF ¶ 20; Doc. 34 ¶ 20; Doc. 25-2 at 20

(Petrilla Dep. 19:12-17).)

County Manager Pape testified that he

does not consider political affiliation an appropriate criteria for
selection for the position.

(Doc. 29 CMF ¶ 21; Doc. 34 ¶ 21.)

No

one from the commissioners or county management suggested to Pape
that political affiliation is an appropriate criteria for the
selection of someone to fill the position.
34 ¶ 22.)

(Doc. 29 CMF ¶ 22; Doc.

Political affiliation was not mentioned in Spagnola’s

application process or during the course of his tenure as Director

11

of Veterans’ Affairs.

(Doc. 29 CMF ¶¶ 23, 25; Doc. 34 ¶ 23, 25.)

Luzerne County Solicitor Vito DeLuca, Esq., testified that
political affiliation was not a proper factor to consider for the
selection of the director position, nor was it related to the
performance of the job.

(Doc. 29 CMF ¶¶ 26-27; Doc. 34 ¶¶ 26-27.)

Plaintiff testified that his political affiliation was not a proper
factor to be considered for the selection of an individual to fill
the position.

(Doc. 29 CMF ¶ 28; Doc. 34 ¶ 28.)

Plaintiff was born on October 19, 1958.

(Doc. 34 ¶ 29.)

successor, James Spagnola, was born on May 14, 1964.

His

(Doc. 34 ¶

30.)
Based on his termination, Plaintiff filed a Complaint in this
Court on September 23, 2011.

(Doc. 1.)

The Complaint contains

four counts: Count I asserting First and Fourteenth Amendment
violations pursuant to 42 U.S.C. § 1983 against all Defendants;
Count II asserting First and Fourteenth Amendment violations
pursuant to 42 U.S.C. § 1983 against Defendants Petrilla and Urban
in their individual capacities; Count III asserting Discrimination
on Account of Age pursuant to the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 623(a) and 29 U.S.C. § 215; and Count IV
asserting Discrimination on Account of Age pursuant to the
Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 955(a).
1.)

(Doc.

The instant motion seeks summary judgment in Defendants’ favor

on all claims.

(Doc. 20.)

12

II. Discussion
A.

Summary Judgment Standard
Summary judgment is appropriate when the movant demonstrates

there is no “genuine issue as to any material fact and the movant
is entitled to judgment as a matter of law.”
56(a).

Fed. R. Civ. P.

“[T]his standard provides that the mere existence of some

alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
“An issue is genuine only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving
party, and a factual dispute is material only if it might affect
the outcome of the suit under governing law.”

Kaucher v. County of

Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson, 477 U.S.
at 248).

In determining whether a genuine issue of fact exists, a

court must resolve all factual doubts and draw all reasonable
inferences in favor of the nonmoving party.

Conoshenti v. Public

Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (citation
omitted).
The initial burden is on the moving party to show an absence
of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477

U.S. 317, 330 (1986) (citations omitted).

The moving party may

meet this burden by “pointing out to the district court [] that
13

there is an absence of evidence to support the nonmoving party’s
case when the nonmoving party bears the ultimate burden of proof.”
Id. at 325.

The non-moving party may not rest on the bare

allegations contained in his or her pleadings, but is required by
Federal Rule of Civil Procedure 56 to go beyond the pleadings by
way of affidavits, depositions, answers to interrogatories or the
like in order to demonstrate specific material facts which give
rise to a genuine issue.

Id. at 324.

However, “to raise a genuine

issue of material fact, the summary judgment opponent need not
match, item for item, each piece of evidence proffered by the
movant, but simply must exceed the ‘mere scintilla’ standard.”
Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d
Cir. 1998) (citing Petruzzi’s IGA Supermarkets, Inc. v. Darling
Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir. 1993); Anderson,
477 U.S. at 252).

Boyle added

[i]t is clear, however, that if a moving
party satisfies its initial burden of proving
a prima facie case for summary judgment, the
opposing party “must do more than simply show
that there is some metaphysical doubt as to
material facts.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 . .
. (1986). Rather, “[t]here must be
sufficient evidence for a jury to return a
verdict in favor of the non-moving party; if
the evidence is merely colorable or not
significantly probative, summary judgment
should be granted.” Arbruster v. Unisys
Corp., 32 F.3d 768, 777 (3d Cir. 1994).
139 F.3d at 393.
Where underlying facts are in dispute, the facts are viewed in
14

the light most favorable to the plaintiff.

Abramson v. William

Patterson College of N.J., 260 F.3d 265, 267 (3d Cir. 2001) (citing
Drinkwater v. Union Carbide Corp., 904 F.2d 853, 854 N.1 (3d Cir.
1990).

“In considering a motion for summary judgment, a district

court may not make credibility determinations or engage in any
weighing of evidence.”

Anderson, 477 U.S. at 255.

Therefore, when

evidentiary facts are in dispute, when the credibility of witnesses
may be in issue, or when conflicting evidence must be weighed, a
full trial is usually necessary.
B.

Defendants’ Motion
Defendants assert they are entitled to summary judgment on all

claims contained in Plaintiff’s Complaint and the Complaint should
be dismissed with prejudice.

(Doc. 20.)

Before analyzing the

individual claims and the intricacies of the legal arguments
involved, we will set out a brief summary of what we consider to be
the nub of the case.
Plaintiff had a long-term association with former Luzerne
County Commissioner Gregory Skrepenak, including working on his
2004 successful campaign for Luzerne County Commissioner.
Thereafter (July 2005), the Commissioners, including Skrepenak and
Defendant Urban (the minority commissioner at the time), appointed
Plaintiff to the position of the Luzerne County Director of
Veterans’ Affairs.

In 2007, Defendant Petrilla joined Skrepenak on

the Democratic ticket running for Luzerne County Commissioner.

15

Both were elected and Urban remained the minority commissioner.
Plaintiff asserts there came a time when Defendants Urban and
Petrilla were opposed to Skrepanak, an assertion we take as true
for summary judgment purposes only.

Defendants Petrilla and Urban

maintain Plaintiff’s association with Skrepenak had nothing to do
with their decision to terminate him: the only reason was his
submission of an altered receipt with his request for payment of
veterans’ group expenses related to distribution of Memorial Day
flags in 2009.

Plaintiff maintains his association with Skrepenak

played a role in his termination.

He also asserts that his age

played a role in his termination.
We now turn to a discussion of Plaintiff’s specific claims and
the parties’ arguments for and against summary judgment.
1.

42 U.S.C. § 1983
Counts I and II of Plaintiff’s Complaint are brought pursuant

to 42 U.S.C. § 1983 asserting violations of the First and
Fourteenth Amendments of the United States Constitution based on
his rights of free speech and association.

We conclude Defendants

are entitled to partial summary judgment on these Counts.
To establish a § 1983 claim, a plaintiff must show that “the
defendant acted under color of state law, and, while so acting,
deprived the plaintiff of his rights under the Constitution or laws
of the United States.”
2011).

Galena v. Leone, 638 F.3d 186, 197 (3d Cir.

Section 1983 is not a source of substantive rights but

16

provides a remedy for violation of a federal constitutional or
statutory right.

Dique v. New Jersey State Police, 603 F.3d 181,

185 (3d Cir. 2010) (citing Oklahoma City v. Tuttle, 471 U.S. 808,
816 (1985)).

Therefore, a plaintiff must identify the specific

right violated in asserting a § 1983 claim.
As noted above, in Counts I and II Plaintiff points to his
rights of association and free speech guaranteed by the First and
Fourteenth Amendments to the United States Constitution as the
bases for his § 1983 claims.3

(Doc. 1 at 6-8.)

We will review

each basis of Plaintiff’s First Amendment claims individually.
Because the First Amendment is applied to the states through the
Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303
(1940), we analyze Plaintiff’s claim under First Amendment

3

In his Complaint, Plaintiff makes the following related
accusations: 1) before September 24, 2009, Plaintiff was
politically affiliated with and associated with Gregory Skrepenak
who, at all material times was a member of the Luzerne County Board
of Commissioners (Doc. 1 ¶ 21); 2) before September 2009 Plaintiff
openly campaigned for Skrepenak (Doc. 1 ¶ 22); 3) before September
24, 2009, Defendants Petrilla and Urban were politically opposed to
Commissioner Skrepenak (Doc. 1 ¶¶ 23-24); 4) on September 24, 2009,
Defendants Petrilla and Urban voted to terminate Plaintiff and
Skrepenak dissented and Plaintiff was terminated on this date (Doc.
1 ¶¶ 25-26); 5) prior to the termination, Defendant Urban told
Plaintiff that Plaintiff was “Skrepenak’s boy” or words to that
effect (Doc. 1 ¶ 29); 6) before Plaintiff’s termination, Defendants
Petrilla and Urban began a campaign of terminating the political
allies of Gregory Skrepenak from their positions with Defendant
County (Doc. 1 ¶ 30); 7) Plaintiff was terminated because of his
political affiliation; and 8) Plaintiff’s termination was in
violation of Plaintiff’s right of free speech and association as
guaranteed by the First and Fourteenth Amendments (Doc. 1 ¶¶ 42,
44).
17

jurisprudence.
a. Association
Plaintiff asserts in his Complaint that he was terminated in
part because of his political affiliation with Gregory Skrepenak, a
County Commissioner during the time at issue to whom Defendants
Petrilla and Urban were politically opposed.
31.)

(Doc. 1 ¶¶ 21-24, 30-

We conclude this claim is not properly dismissed at this

stage of the litigation.
In order to make a prima facie case of political
discrimination in violation of the First Amendment, a plaintiff
must show the following: 1) he was employed at a public agency in a
position that does not require political affiliation; 2) he was
engaged in constitutionally protected conduct; and 3) this conduct
was a substantial or motivating factor in the government’s
employment decision.

Galli, 490 F.3d at 271 (citation omitted).

Once a plaintiff makes this showing, a defendant “may avoid a
finding of liability by proving by a preponderance of the evidence
that the same employment action would have been taken even in the
absence of the protected activity.”

Id. (citing Stephens v.

Kerrigan, 122 F.3d 171, 176 (3d Cir. 1997); Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
Defendants argue they are entitled to summary judgment on
Plaintiff’s First Amendment association claim because his position
was exempt from First Amendment protection, and, alternatively, the

18

County Commissioners would have made the same decision regardless
of political association and the action is barred against
Defendants Petrilla and Urban based on the doctrine of qualified
immunity.
(1)

(Doc. 24 at 13-41.)

Political Affiliation Requirement
Defendants assert the Director of Veterans’ Affairs is a

policymaking position exempt from First Amendment protection.
(Doc. 24 at 14.)

We conclude Defendants have not met their burden

on this issue and, therefore, summary judgment on this basis is not
appropriate.
In Galli v. N.J. Meadowlands Comm’n, 490 F.3d 265 (3d Cir.
2007), the Third Circuit Court noted that the United States Supreme
Court first clarified constitutional restraints on political
patronage in Elrod v. Burns, 427 U.S. 347 (1976), and Branti v.
Finkel, 445 U.S. 507 (1980), which held that “termination of public
officials because of their political affiliation violates the First
Amendment unless the position at issue involves policymaking.”
Galli, 490 F.3d at 270.

The Third Circuit has a long line of cases

addressing what has been referred to as the Elrod-Branti exception.
See, e.g., Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386,
393 (3d Cir. 1998).

Our Circuit Court explained the guidance on

this issue provided to government officials through circuit case
law in Assaf v. Fields, 178 F.3d 170, 177 (3d Cir. 1999).
An employee may be terminated for political
reasons only if “a difference in party
19

affiliation [is] highly likely to cause an
official to be ineffective in carrying out
the duties and responsibilities of the
office,” Wascovich [v. Morgano, 2 F.3d 1292,]
1297 [(3d Cir. 1993)], . . . and only if an
employee’s duties make it possible to cause
“serious political embarrassment,” id. at
1302, will the position meet the narrow
Branti-Elrod exception.
Assaf, 178 F.3d at 177.

Boyle identified the underlying dual

goals: “to permit governmental entities to use political
affiliation where the governmental interest is ‘overriding’ and of
‘vital importance,’ while concomitantly protecting the individual’s
right to freedom of association guaranteed by the First Amendment.”
139 F.3d at 396 (citing Elrod, 427 U.S. at 362, 368; Branti, 445
U.S. at 515-16).
The burden of proof is on the public employer to demonstrate
an overriding interest and “[t]his burden is substantial.”4

4

Boyle,

The Third Circuit Court of Appeals explained the burden
allocation in Busa v. Township of Gloucester, 458 F. App’x 174 (3d
Cir. 2012) (not precedential):
While the usual allocation of the burden of
proof in employment discrimination cases
would place the burden solely on the
plaintiff with only the burden of production
shifting, Stanziale v. Jargowsky, 200 F.3d
101, 105 (3d Cir. 2000), in cases such as
this the allocation of burdens is modified to
require the defendant to demonstrate an
overriding interest in encroaching on a
constitutional right, Armour v. Cnty of
Beaver, 271 F.3d 417, 420 (3d Cir. 2001).
458 F. App’x at 177 n.6. Boyle v. County of Allegheny
Pennsylvania, 139 F.3d 386, 397 (3d Cir. 1998).
20

139 F.3d at 397; see also Galli, 490 F.3d at 271 (citing Armour v.
Cnty of Beaver, 271 F.3d 417, 420 (3d Cir. 2001)).

Boyle added

that “the intermediate ‘exacting’ level of scrutiny must be
applied, [Elrod, 427] at 362, 96 S. Ct. at 2684.

Thus, the

interest advanced must be paramount, one of vital importance, and
the burden is on the government to show the existence of such an
interest.”

139 F.3d at 395.

Galli outlined the appropriate

inquiry.
While permitted political patronage lies
in a gray area, employers are allowed to make
employment decisions based on political
affiliation when “policymaking” positions are
at issue; however, “[n]o clear line can be
drawn between policymaking and
nonpolicymaking positions.” Elrod, 427 U.S.
at 367. In Brown v. Trench, our Court
clarified this line by setting out several
factors that should be considered when
determining whether political affiliation is
an appropriate precondition for a government
position. 787 F.2d 167, 169 (3d Cir. 1986).
These factors include whether the employee
has duties that are non-discretionary or nontechnical, 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. The “key factor seems to
be not whether the employee was a supervisor
or had a great deal of responsibility[,] but
whether [she] has meaningful input into
decisionmaking concerning the nature and
scope of a major [ ] program.” Armour [v.
County of Beaver, Pa.], 271 F.3d [417,] 429
[(3d Cir. 2001)] (citations and quotations
omitted).
Galli, 490 F.3d at 271.

Our Circuit Court has also advised that

21

district courts are
to look at the “function[s] of the office in
question and not the actual past duties of
the particular employee involved.” Peters
v. Delaware River Port Authority, 16 F.3d
1346, 1353 (3d Cir. 1994); Brown v. Trench,
787 F.2d 167, 168 (3d Cir. 1986); 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.”) . . . Although,
actual duties are not determinative, they
may be informative.
Boyle, 139 F.3d at 397.
Defendants assert that “whether a position is one requiring a
certain political affiliation is a question of law for the court to
decide.”

(Doc. 35 at 7 (citing Ness v Marshall, 660 F.2d 517, 522

(3d Cir. 1981)).)

We disagree with this proposition.

Rather, Ness

instructed that the issue could be decided on summary judgment.
660 F.2d at 522.

However, in general explanation, the Circuit

Court quoted its earlier discussion of the Supreme Court’s comment
in Elrod concerning the difficulty of drawing a line between
policymaking and nonpolicymaking positions:
[T]he determination of status as a
policymaker vel non presents a difficult
factual question. Where there is evidence
to support the employee’s claim that he does
not make policy, as there is here, he is
entitled to a full trial on the issue.
Indeed, the state bears the burden of
persuasion on that question at trial.
Certainly, then, it was improper for the
22

district court to weigh the evidence and
rule against [the plaintiff] on this issue
on a Rule 56 motion.
Ness, 660 F.2d at 522 (quoting Rosenthal v. Rizzo, 555 F.2d 390,
394 n.5 (3d Cir. 1977) (finding that “evidence as to the nature of
Rosenthal’s duties, in the form of depositions, was imprecise and
cut both ways” and therefore the district court’s apparent weighing
of evidence and resolution of the issue on motion for summary
judgment was improper)).

Boyle stated that, although summary

judgment may be appropriate in certain circumstances, 139 F.3d at
397 (citing Ness, 660 F.2d at 521),

“[t]he question of whether an

employee falls within the Elrod/Branti exception is generally one
of fact,”

139 F.3d at 397 (citing Furlong v. Gudnecht, 808 F.2d

233, 235 (3d Cir. 1986); Rosenthal, 555 F.2d at 393 n.5).
Here Defendants deny political affiliation played any role in
their decision.

(Doc. 24 at 14 n.3.)

Their argument on this issue

is that, even if it were to be found that political affiliation
played a role in Plaintiff’s termination, he would not be entitled
to First Amendment protection because his job as Director of
Veterans’ Affairs was a policymaking position.

Citing Waskovich v.

Morgano, 2 F.3d 1292, 1302 (3d Cir. 1993), as holding that the
position of Director of Veterans’ Administrative Services was a
position exempt from First Amendment protection, Defendants assert
that the factors considered in Waskovich are relevant here and
warrant the same conclusion.

(Doc. 24 at 16-33.)

23

The areas

Waskovich considered in determining the nature of the
responsibilities are: 1) the applicable statutory framework; 2) the
functions actually performed by the director; and 3) the relevance
of political affiliation. 2 F.3d at 1298-1303.
We do not reach the factors outlined in Waskovich and Galli
based on the Third Circuit’s decision in Boyle which we find
controlling at this stage of the proceedings.

Similar to the case

at bar, the Boyle defendants denied the plaintiff was terminated
for his political affiliation and moved for summary judgment
arguing that, even if he were, the termination was proper under the
Elrod-Branti exception.

139 F.3d 389.

The plaintiff largely

relied on the deposition testimony of two of the three members of
the Allegheny County Board of Commissioners who testified that
political affiliation was not an appropriate requirement for the
plaintiff’s position, Deputy Director of Marketing and
Communications.

Id.

The district court granted summary judgment

after concluding that the deposition testimonies were not
significantly probative on the issue of whether political
affiliation was an appropriate requirement for the position.

Id.

The Third Circuit Court reversed, framing the issue as whether
summary judgment was appropriate when “statements [were] made by
the relevant hiring authority to the effect that a particular
political affiliation was not an appropriate requirement for the
particular position.”

139 F.3d at 394.

24

In the issue of first

impression for the circuit, the Third Circuit Court applied an
analysis which differed from the formulations previously developed
by the Supreme Court and the Third Circuit.

Id.

While the ever evolving formulations
developed by the Supreme Court and this court
are to be applied in cases which present no
conflicting testimony from members of the
hiring authority, we believe that a rigid
application of such tests under the
circumstances of this case would render the
relevant analysis overly formalistic and not
consonant with the principles and rationales
underlying the development of the law in the
area of political patronage.
Id.

Finding that the existence of the deposition testimonies

removed the case from the ordinary political patronage cases, Boyle
noted that the case law developed in this area “has generally not
involved a similar situation where a hiring authority specifically
testifies that political affiliation is not an appropriate
requirement for a particular position.”

Id. at 397.

“In resolving

this issue, then, it is important to keep in mind that the
touchstone of political patronage is that the ‘hiring authority
[must] demonstrate that the party affiliation is an appropriate
requirement for the effective performance of the public office
involved.’”

Boyle, 139 F.3d at 397 (quoting Branti, 445 U.S. at

518).
Boyle distinguished Waskovich on the basis that the proffered
testimony of two government officials that political affiliation
was not a proper requirement for the New Jersey Director of

25

Veterans’ Administrative Services did not come from the hiring
authority.

139 F.3d at 398 (citing Waskovich, 2 F.3d at 1301).

In

Wascovich, the court held the deposition testimony did not create a
genuine issue of material fact in the absence of such testimony
from the Adjutant General, the individual vested with the statutory
authority to hire or fire the Director, reasoning that the
“question . . . must focus on whether the Adjutant General, as the
hiring authority, had a valid basis to prefer an individual of one
political party over another.”

139 F.3d at 398 (citing Wascovich,

2 F.3d at 1302).
Noting that “[t]he notion that statements made by members of a
hiring authority--to the effect that political affiliation is not a
proper consideration in hiring or firing–-constitute probative
evidence is consonant with the rationale and policy underlying the
Elrod-Branti exception,” 139 F.3d at 400, Boyle summarized the
court’s consideration of the issue.
[P]olitical patronage is a practice which
primarily benefits those political entities
that invoke the privilege. When those
political entities themselves testify that
political affiliation is or should not be an
important consideration, as in this case,
such evidence, at the very least, creates a
genuine issue of material fact precluding
summary judgment. Put another way, if the
hiring authority is obligated to demonstrate
that political affiliation is an appropriate
requirement for a particular position, then
we cannot say how its own statements relating
directly on the issue can be considered
anything less than probative. The appellee’s
arguments, to the effect that the testimonies
26

of the two Commissioners should be ignored
and the court should rely solely on the
inherent functions of the position in
question, exalts form over substance in the
context of this case, rendering the analysis
called for under Elrod, Branti and their
progeny overly formalistic. The significant
encroachment upon First Amendment rights by
the practice of political patronage does not
justify such an approach.
139 F.3d at 401.
Here we do not have the testimony of a majority of the
decisionmaking body, the Luzerne Count Board of Commissioners, as
did the plaintiff in Boyle.

Rather we have testimony from one

Commissioner, Defendant Petrilla, and others in county
administrative positions, all of whom opined that political
affiliation is not an appropriate consideration for the Luzerne
County Director of Veterans’ Affairs.
27.)

(Doc. 29 CMF ¶¶ 19-22, 26-

There is no directly conflicting testimony from a

decisionmaker or any other county official.

Under the guidance of

Boyle, the testimony of non-decisionmaking administrators is not
probative of the political affiliation issue.

However, the

testimony of Defendant Petrilla, as a decisionmaker, is probative.
Defendant Petrilla testified as follows:
Q. Did you believe that the position you
were filling with Mr. Spagnola [successor to
Plaintiff as Luzerne County Director of
Veterans’ Affairs] was one that was
appropriate to consider his political
affiliation?
A. I never inquired as to his political
affiliation. It was irrelevant.
27

. . . .
Q. Did you perform your service as a county
commissioner at that time with the belief
that the position of the Director of
Veterans’ Affairs should be filled without
reference to political affiliation of the
candidate”
A.

Absolutely.

(Doc. 25-2 at 19, 20 (Petrilla Dep. 18:9-16, 19:12-17).)
Although testimony from a majority of the Commissioners would
put this case squarely under the holding in Boyle, we conclude that
the distinction is not dispositive based on the Circuit Court’s
reasoning and framing of the issue in Boyle–-nowhere in Boyle does
the Circuit Court indicate that only testimony from a majority of a
decisionmaking body should be considered probative.

As noted

previously, Defendants do not proffer any testimony which conflicts
with Defendant Petrilla’s direct statement on the issue.
Defendants proffer no other evidence which suggests that either of
the other decisionmakers, Defendant Urban and Gregory Skrepenak,
believed that political affiliation was a valid consideration for
the position.
Discounting reliance on Boyle, Defendants maintain that
Wascovitch should be controlling.

(Doc. 35 at 10-13.)

In addition

to there being a lack of testimony from a majority of the
decisionmaking body, Defendants aver that Defendant Petrilla’s
testimony was not a direct statement about political affiliation
but “rather was qualified with regard to how she performed her
28

services as County Commissioner.”

(Doc. 35 at 10.)

While this

language may not be as direct as that of the commissioners in
Boyle, 139 F.3d at 392, we cannot conclude its meaning should be
limited to the degree urged by Defendants.

We detect no

equivocation on the part of Defendant Petrilla in her responses to
the questions asked at her deposition regarding the relationship of
political affiliation to the Luzerne County Director of Veterans’
Affairs position.

Similarly, we detect no attempt on the part of

Plaintiff’s counsel to pose questions in such a way as to elicit a
response favorable to his client.

Considered contextually, we find

Defendant Petrilla’s responses relate directly to the issue and
negate a connection between political affiliation and the position
at issue.

Therefore, Defendant Petrilla’s testimony cannot “be

considered anything less than probative.”

Boyle, 139 F.3d at 301.

Defendants also seek to undermine reliance on Boyle based on
the differences in the positions at issue.

(Doc. 35 at 11.)

Defendants maintain that where Boyle considered the Deputy Director
of Marketing Communications, Wascovich presents controlling
similarities in that it deals “with the same position, functions,
discretion and public interaction at issue here.”

(Doc. 35 at 11.)

The position titles in this case and Wascovich are similar, but the
relevant statutory frameworks are completely different: the
Wascovich Director being a New Jersey state-wide position compared
to the Pennsylvania county position at issue here.

29

The breadth of

responsibilities, and therefore the potential functions, of the New
Jersey position are more broad–-the New Jersey statute talking in
terms of “supervise” “operate” and “establish,” N.J. Stat. Ann. §
38A:3-2b, where the Pennsylvania statute primarily uses the word
“assist,” 16 P.S. § 1923.

Thus, although we recognize similarities

between Waschovich and the case at bar, we disagree with Defendants
that they are “controlling similarites” (Doc. 35 at 11) which
dictate the outcome of this issue as a matter of law.
We also recognize that evidence in this case cuts both ways.
For example, in addition to Defendant Petrilla’s testimony about
political affiliation, she testified that Plaintiff was responsible
for “preparing his annual budget, presenting it[,] . . . applying
for grants, administering grants[,] supervision of the employees in
his office, [and] disciplining those employees” in response to the
request that she describe “the extent to which Mr. Wren was
authorized to make policy for the county with respect to veterans
affairs.”

(Doc. 25-2 at 18 (Petrilla Dep. 17:4-12).)

This

testimony shows that Plaintiff was authorized to make policy to
some extent.

But keeping in mind that the “key factor seems to be

not whether the employee was a supervisor or had a great deal of
responsibility, but whether he has meaningful input into
decisionmaking concerning the nature and scope of a major program,”
Armour, 271 F.3d at 429, and “that the touchstone of political
patronage is that ‘the hiring authority [must] demonstrate that the
party affiliation is an appropriate requirement for the effective
30

performance of the public office involved,’” Boyle, 139 F.3d at 397
(quoting Branti, 445 U.S. at 518), it is obvious in this case that
evidence is to be weighed.

And this the Court cannot do.

While we make no decision on the ultimate resolution of this
issue by a jury, our conclusion is consistent with guidance that
the Elrod-Branti exception is to be construed narrowly.
Assaf, 178 F.3d at 177.

See, e.g.,

Other District Court cases further support

our determination that this issue presents a question of fact for a
jury.

In Scott v. Sills, 134 F. Supp. 2d 599 (D. Del. 2001), where

the position at issue was director of the Wilmington Economic
Development Corporation, the court concluded testimony from some
decisionmakers that the position was not one for which political
affiliation was an appropriate consideration precluded summary
judgment on the issue pursuant to Boyle.

Scott did not discuss the

need for a majority of decisionmakers to offer such testimony in
order to be considered probative.

In Bell v. Lackawanna County,

Civil Action No. 3:08-CV-1926, 2012 WL 3782550, at *11 (M.D. Pa.
Aug. 31, 2012) (Conner, J.), where one of the positions at issue
was the Director of Veterans’ Affairs of Lacakwanna County,
Pennsylvania, Judge Conner found that the same statute which is
controlling here, 16 P.S. § 1923, did not vest the Director of
Veterans’ Affairs with policymaking functions based in part on the
statutory language describing the director’s duties as primarily to

31

“assist” the commissioners.5

2012 WL 3782550, at *11.

(2) Same Decision Defense
Defendants assert that, assuming arguendo Plaintiff can
establish that his position was one for which political association
is not an appropriate requirement and that he can further establish
that his political association with former Commissioner Gregory
Skrepenak was a substantial or motivating factor in Plaintiff’s
termination, they are nonetheless entitled to summary judgment on
Plaintiff’s association claim because they would have made the same
decision regardless of his political association.

(Doc. 24 at 33.)

We conclude the Court cannot make this determination as a matter of
law.
As set out above, once a plaintiff makes the required prima
facie showing, a defendant “may avoid a finding of liability by
proving by a preponderance of the evidence that the same employment
action would have been taken even in the absence of the protected
activity.”

Galli, 490 F.3d at 271, (internal quotation and

5

Defendants discount Bell because it was decided on the
basis of Pennsylvania law. (Doc. 35 at 12.) Bell cited Adams v.
Rodfong, 7 Pa. D & C.3d 463 (Pa. Comm. Pl. 1978), as holding that
the Beaver County Director of Veterans’ Affairs was not a
policymaking position because 16 P.S. § 1923 does not vest the
position with policymaking functions. 2012 WL 3782550, at *11.
The Adams determination was made in the context of deciding whether
the official was entitled to high government official immunity. 7
Pa. D & C.3d at 467. Although this context differs from that
considered here, the “policymaking” aspect of the decision from a
Pennsylvania Court interpreting the Pennsylvania statute at issue
is relevant to the matters presented in Bell and in the case at
bar.
32

citations omitted).

In proving they would have made the same

decision, defendants must show that “the protected conduct was not
the but-for cause” of the action.
236 (3d Cir. 2000).

Suppan v. Dadonna, 203 F.3d 228,

The rationale for this approach is that the

plaintiff “is entitled to the extent practicable to be put in the
position that he would have been in had he not engaged in that
protected conduct.”

Id.

We presume for the sake of argument (as Defendants have (Doc.
24 at 33)) that Plaintiff can satisfy the elements of his prima
facie case.

Turning to the application of the Galli/Suppan

formulation set out above to the facts of this case, Defendants are
entitled to summary judgment based on the same decision defense if
they can show by a preponderance of the evidence that Plaintiff’s
association with Skrepenak was not the but-for cause of his
termination.
Defendants have produced evidence from which a reasonable jury
could conclude they would have made the same decision, that is, the
decision to terminate Plaintiff, even if Plaintiff had not been
politically affiliated with Gregory Skrepenak.

We are cognizant of

the political climate in Luzerne County during the relevant time
period (see, e.g., Doc. 25-3 at 10 (Urban Dep. 29:5-11)) and
recognize there is no question that Plaintiff submitted an altered
receipt with his request for reimbursement to the veterans’ group
(Doc. 23 ¶ 59; Doc. 29 ¶ 59).

33

Plaintiff has also produced evidence from which a reasonable
jury could conclude that Defendants’ stated motives are suspect.
No receipt policy was written.
61, 62.)

(Doc. 29 CMF ¶¶ 61, 62; Doc. 34 ¶¶

Plaintiff had the authority to establish policy within

his department for the submission of payment requests for the
Memorial Day flag volunteers.

(Doc. 29 CMF ¶ 45; Doc. 34 ¶ 45.)

There is no evidence that the underlying expenditure was
nonexistent or improper.

Others in the county who had submitted

improper payment requests were not terminated.

(See, e.g., Doc.

25-3 at 10 (Urban Dep. 30:15-31:13).)
We conclude evidence exists for Plaintiff to cast sufficient
doubt on Defendants’ stated termination motivation that we cannot
say as a matter of law that Defendants have shown by a
preponderance of the evidence that they would have made the same
decision if Plaintiff had not been associated with Skrepenak.
Faced with conflicting evidence (which is by way of example) and
credibility matters, the decision of what to credit and what to
reject is for the jury.

Therefore, summary judgment on this issue

is not appropriate.
(3) Qualified Immunity
Defendants next argue they are entitled to qualified immunity,
and therefore summary judgment, on Plaintiff’s First Amendment
association claim.

We disagree.

“The doctrine of qualified immunity protects government

34

officials ‘from liability for civil damages insofar as their
conduct does not violate clearly established . . . constitutional
rights of which a reasonable person would have known.’”

Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)).

It reflects the “need to hold public

officials accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.”

Id.

In

Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court
mandated a two-step qualified immunity analysis--first, whether
“the facts alleged show that the [official’s] conduct violated a
constitutional right,” and, second, whether the right, if violated,
“was clearly established.”

In Pearson, the Court backed away from

the previously-mandated sequence, stating, “while the sequence set
forth [in Saucier] is often appropriate, it should no longer be
regarded as mandatory.”

555 U.S. at 236.

The inquiry into whether a right was clearly established must
be undertaken in light of the specific context of the case.
Saucier, 533 U.S. at 201.

“The relevant dispositive inquiry into

whether a right is clearly established is wether it would be clear
to a reasonable [official] that his conduct was unlawful in the
situation he confronted.”

Id. at 202 (citation omitted).

Thus,

although the analysis is undertaken from an objective perspective,
specific circumstances play a vital role in determining objective

35

reasonableness.

See, e.g., Southerland v. Pennsylvania, 389 F.

App’x 166, (3d Cir. 2010) (not precedential) (“[T]he question is
whether ‘in light of pre-existing law,’ the ‘contours’ of the
plaintiff’s rights were sufficiently clear that the unlawfulness of
the officer’s conduct, in the specific circumstances that he
confronted, would have been apparent to a reasonable person.”
(quoting Paff v. Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000)).)
A defendant has the burden of establishing entitlement to
qualified immunity.
2004).

Kopec v. Tate, 361 F.3d 772, 776 (3d Cir.

The court must consider the facts alleged in the light most

favorable to the plaintiff.

Saucier, 533 U.S. at 201.

We conclude that Defendants are not entitled to qualified
immunity because the right at issue, the right not to be terminated
based on political affiliation unless the Elrod-Branti exception
applies, was firmly established at the time Plaintiff was
terminated.

See, e.g., Assaf, 178 F.3d at 177.

Defendants’

assertion regarding the applicability of Wascovitch is essentially
an argument that a reasonable person in the position of a Luzerne
County Commissioner would have believed the Elrod-Branti exception
applied to the County Director of Veterans’ Affairs position given
the specific facts of this case.

We reject this argument.

First, Defendants have not met their burden of showing that a
reasonable decisionmaker would have believed the Elrod-Branti
exception applied based on Wascovich.

36

This is so for several

reasons: 1) it was clearly established in 2009 that whether the
exception applied was a fact specific inquiry, see, e.g., Zold v.
Township of Mantua, 935 F.2d 633, 635 (3d Cir. 1991); 2) it was
clearly established in 2009 under Boyle that a decisionmaker’s
belief that political affiliation was not an appropriate
consideration for a position is relevant to the inquiry of whether
the position is exempt from First Amendment protection; and 3)
given the first and second considerations, a reasonable government
official would not have assumed Wascovich was controlling in light
of the previously discussed distinctions between Wascovich and the
case at bar.
Second, the specific facts of this case include the fact that
at least one of the decisionmakers testified that, during the
relevant time period, she did not believe political affiliation was
an appropriate consideration.
19, 20.)

(Doc. 29 CMF ¶¶ 19, 20; Doc. 34 ¶¶

Thus, the question is whether a reasonable person could

believe the exception applied where at least one member of the
decisionmaking body and the chief county solicitor did not believe
the position in question was one for which political affiliation
was an appropriate consideration.6

6

We think not.

We consider County Solicitor Vito DeLuca’s testimony
relevant on this issue: if a commissioner were to seek the advice
of counsel on the issue of whether political affiliation were an
appropriate consideration for Plaintiff’s position, he or she would
have been informed that it was not an appropriate consideration in
that solicitor’s belief. (See Doc. 29 CMF ¶¶ 26, 27; Doc. 34 ¶¶
26, 27.)
37

Because the objective reasonableness of believing that
Wascovich applied in this situation is seriously undermined,
Defendants have not shown that they are entitled to qualified
immunity on Plaintiff’s First Amendment association claims, and
summary judgment on these claims in Counts I and II is not
appropriate.
b. Speech
Defendants assert they are entitled to summary judgment on
Plaintiff’s First Amendment speech claims.

We agree.

To state a First Amendment retaliation claim, a plaintiff must
allege two things: “(1) that the activity in question is protected
by the First Amendment, and (2) that the protected activity was a
substantial factor in the alleged retaliatory action.”

Hill v.

Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006) (citing Hill
v. City of Scranton, 411 F.3d 305, 310 (3d Cir. 2004)).

The first

factor is a question of law, the second a question of fact.

Id.

(citing Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir.
2004)).

“A defendant may defeat the plaintiff’s claim by proving

by a preponderance of the evidence that the same employment action
would have been taken even in the absence of the protected
conduct.”

455 F.3d at 241 n.23 (citing Mt. Healthy, 429 U.S. at

287).
Analyzing the first element of a First Amendment speech claim,
a public employee’s speech is protected activity where “(1) in

38

making it, the employee spoke as a citizen, (2) the statement
involved a matter of public concern, and (3) the government
employer did not have ‘an adequate justification for treating the
employee differently from any other member of the general public’
as a result of the statement he made.”

Hill, 455 F.3d at 241-42

(quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).
Defendants first argue that Plaintiff’s notice to veterans
about a budget meeting is not protected speech because it was not
made in his capacity as a citizen (Doc. 24 at 43-45), and a
reasonable jury could not find his 2004 campaign hat design a
substantial or motivating factor in his termination because of the
lapse in time between that action and his termination (Doc. 24 at
46-47).

Defendants also maintain they would have made the same

decision regardless of his allegedly protected speech (Doc. 24 at
48).
Plaintiff does not directly refute Defendants’ assertion that
they are entitled to summary judgment on his First Amendment speech
claims.

However, he addresses these claims in a footnote.

Regarding the “substantial or motivating factor” element of his
prima facie case, Plaintiff states
Defendants do argue this point with respect
to Mr. Wren’s political speech. However,
Defendants do not detail the evidence of Mr.
Wren’s political speech. He testified he was
confronted by Commissioner Urban after having
been seen passing out campaign literature.
(Wren 120:8-15; 122:3-13) Thereafter,
Commissioner Urban accused him of being in
bed with Skrepenak or that he was one of his
39

boys, or words to that effect. (CSMF 93) As
to the Skrepenak campaign hat activity on the
part of Mr. Wren, the fact that this occurred
earlier in time does not mean it was not a
motivating factor. . . . Commissioner Urban
could not act against Mr. Wren until
Commissioner Skrepenak became politically
powerless due to issues leading to his
indictment and conviction.
(Doc. 28 at 25 & n.7.)
In their reply brief, Defendants address Plaintiff’s “claims
that he was discriminated against by Mr. Urban for passing out
campaign literature at the polls, placing signs and attending fund
raising functions in 2004 on behalf of the Friends of Skrepenak &
Vonderheid.”
1 at 121).)

(Doc. 35 at 14 (citing Doc. 28 at 25-26 n.7; Doc. 25Defendants conclude that, like the hat design, all of

Plaintiff’s 2004 speech claims fail because of the five year lapse
of time between the speech and his termination.

(Doc. 35 at 15.)

We agree with Defendants that Plaintiff’s claims regarding
notification of the budget meeting and the 2004 hat design do not
support his First Amendment Speech claim.

Plaintiff does not

properly refute Defendants’ arguments regarding these claims and we
concur with Defendants’ assessments.
Similarly, any claim related to the 2004 campaign is subject
to the same analysis as the 2004 hat claim, i.e., for a plaintiff
to prove his protected conduct was a substantial or motivating
factor in the adverse employment decision, he must establish a
causal link.

To establish a causal link, “‘a plaintiff usually

must prove either (1) an unusually suggestive temporal proximity
40

between the protected activity and the allegedly retaliatory
action, or (2) a pattern of antagonism coupled with timing to
establish a causal link.’”

Kovac v. Pennsylvania Turnpike Com’n,

444 F. Appx. 588, 590 (3d Cir. 2011) (not precedential) (quoting
Lauren W. ex. rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d
Cir. 2007)).

Kovac further explained that in the absence of these

elements, the Third Circuit Court has held that evidence of
causation may be gleaned from the record as a whole. 444 F. App’x
at 588 (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271,
281 (3d Cir. 2000)).

“In addition, summary judgment may be

defeated when ‘a reasonable inference can be drawn that an
employee’s speech was at least one factor considered by an employer
in deciding whether to take action against the employee.’”

Kovac,

444 F. App’x 588 at 590-91.
As noted above, Plaintiff does not properly refute Defendants’
temporal proximity argument regarding the 2004 campaign hats.

In

that Plaintiff points to other 2004 allegedly protected speech, we
review his claim pursuant to the Kovac guidance and conclude his
First Amendment claim fails because of the remoteness in time, lack
of other supportive evidence in the record gleaned from our review
of Plaintiff’s cited testimony, and the lack of any reasonable
inference that Plaintiff’s 2004 allegedly protected speech was a
factor in the decision to terminate him in 2009.
Defendants do not address Plaintiff’s allegations regarding

41

allegedly protected speech in 2007 or an alleged verbal exchange
with Defendant Urban.

Although the portions of Plaintiff’s

deposition testimony cited in support of his speech claims (Doc.
25-1 at 121, 122 (Wren Dep. 120:8-15, 122:3-13)), are less than
clear, we conclude the allegations vaguely made therein do not
support a First Amendment speech claim.

His allegations regarding

Defendant Urban’s comments (see Doc. 29 CMF ¶ 93) are similarly
unavailing.
We conclude that causal connection is lacking because the 2007
campaign activity, undertaken on behalf of Defendant Petrilla as
well as Skrepenak, at most reflects upon Defendant Urban’s
motivation.

At the time, Plaintiff was working on behalf of the

Skrepenak/Petrilla ticket.

While a reasonable juror might find

that Defendant Urban acted in part in retaliation against Plaintiff
for supporting a political adversary, Plaintiff has produced no
evidence from which a reasonable juror could find the same as to
Defendant Petrilla.

As the decision to terminate took both

Defendants’ votes, the record does not support a finding that the
allegedly protected activity in 2007 was a substantial or
motivating factor in the decision to terminate Plaintiff.
We further conclude that the vague allegations relating to
Defendant Urban’s comments do not support Plaintiff’s First
Amendment speech claim.

The scant testimony provided on this issue

indicates that, at some time while he was the Veterans’ Affairs
Director, Plaintiff questioned Defendant Urban about why he had
42

made statements to the effect that Plaintiff “was in bed with
Skepenak” or “one of his boys.”
124:16-125:5).)

(Doc. 25-1 at 125 (Wren Dep.

As reported, this cannot be considered speech

involving a matter of public concern as is required for First
Amendment protection.

Hill, 455 F.3d at 241-42.

Therefore, it

cannot serve as a basis for Plaintiff’s First Amendment speech
claim.7
Because Plaintiff has failed to point to evidence from which a
reasonable juror could conclude that his speech was a substantial
or motivating factor in Defendants’ decision to terminate him,
Defendants are entitled to summary judgment on Plaintiff’s First
Amendment speech claims.
c.

Municipal Liability Claims
Defendants argue that because Plaintiff cannot establish a

constitutional violation perpetrated by Defendants Petrilla and
Urban, he cannot establish a constitutional violation perpetrated
by Defendant Luzerne County.

(Doc. 24 at 49.)

Based on our

findings on Plaintiff’s association and speech claims, Plaintiff’s
First Amendment claim against Luzerne County in Count I goes
forward insofar as it is based on his association rights and fails
insofar as it is based on his free speech rights.
d.

Substantive Due Process Claims
Defendants maintain Plaintiff’s Fourteenth Amendment
7

With this finding, we need not reach Defendants’ same
decision defense.
43

substantive due process claims in Counts I and II must be
dismissed.

(Doc. 24 at 48.)

We do not read Plaintiff’s Complaint

to assert independent substantive due process rights in public
employment.

Plaintiff does not address this issue in his

responsive brief.

Therefore, without further discussion, we agree

with Defendant to the extent that if such a claim is made it is
properly dismissed.
2.

Age Discrimination
Count III of Plaintiff’s Complaint sets out a claim for a

violation of the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 623(a) and 29 U.S.C. § 215.

Count IV sets out a claim for

age discrimination under the Pennsylvania Human Relations Act
(“PHRA”), 43 P.S. § 955(a).

For the reasons discussed below, we

conclude that further briefing regarding Plaintiff’s age
discrimination claims is required.
Defendants maintain that Plaintiff’s age discrimination claims
must be dismissed for several reasons.

First, Plaintiff’s position

was exempt from ADEA protection because he held a political
appointee policymaking level position.

(Doc. 24 at 49.)

Second,

because Plaintiff has advanced multiple theories of discrimination
as the bases for his discrimination claims, he cannot show that his
age was the “but for” cause of his termination as his required by
the ADEA.

(Doc. 24 at 55.)

Third, Plaintiff has not adduced

evidence from which a reasonable jury could conclude the reason
given for Plaintiff’s termination--submission of an admittedly
44

falsified receipt for reimbursement--was a pretext for
discrimination.

(Doc. 24 at 56.)

Defendants do not argue that

Plaintiff cannot establish a prima facie case of age
discrimination.
Upon review of the parties’ briefs and the entire record, we
conclude that proper consideration of Plaintiff’s age
discrimination claims includes consideration of the prima facie
case.

Therefore, the Court requires further briefing concerning

the required showing to make out a prima facie case of age
discrimination under the ADEA and PHRA.

With this conclusion, the

parties are on notice that they are to come forward with all of
their evidence related to the prima facie age discrimination case.
A schedule for such briefing will be set out in the accompanying
Order.
III. Conclusion
For the reasons discussed above, Defendants’ County of
Luzerne, Maryanne C. Petrilla and Stephen A. Urban’s Motion for
Summary Judgment (Doc. 20) is granted in part, denied in part, and
held in abeyance in part.

The motion is granted insofar as

Plaintiff’s First Amendment free speech claims are dismissed from
Counts I and II; the motion is denied insofar as Plaintiff’s First
Amendment association claims in Counts I and II go forward as to
the Defendants identified in each claim.

The motion is held in

abeyance on Plaintiff’s age discrimination claims in Counts III and
IV.

A decision on these claims will be rendered following required
45

briefing.

An appropriate Order will be filed simultaneously with

this motion.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: February 8, 2013_____________________

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