Wuestling v. Lackawanna County et al
Filing
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MEMORANDUM AND ORDER DENYING defendants' motion to dismiss 13 and deeming plaintiff's state law claim for wrongful termination WITHDRAWN. (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 3/1/13. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KENT WUESTLING,
Plaintiff,
v.
LACKAWANNA COUNTY,
COREY O’BRIEN, and
JIM WANSACZ,
Defendants
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Civil Action No. 3:12-CV-660
(Judge Conner)
MEMORANDUM
Presently before the court is a motion to dismiss (Doc. 13) filed by defendants
Lackawanna County, Corey O’Brien, and Jim Wansacz (collectively, “defendants”).
For the reasons that follow, the court will deny the motion.
I.
Background1
This case arises out of the termination of plaintiff Kent Wuestling
(“Wuestling”) from Lackawanna County’s (“the County”) Parks and Recreation
1
In accordance with the standard of review for a motion to dismiss pursuant
to Rule 12(b)(6), the court will present the facts as alleged in the complaint. See
infra Part II. However, those portions of the complaint which consist of no more
than legal conclusions or a formulaic recitation of the elements of a cause of action
have been disregarded. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Santiago v.
Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010).
Department in February 2012.2 According to the complaint, Wuestling secured his
position in 2007 because Wuestling provided former County Commissioner Michael
Washo (“Washo”) with politically advantageous information which aided his
administration. (Doc. 1 ¶ 32, 34). Wuestling’s position was primarily administrative
in nature and did not involve political or policy making duties. (Id. ¶ 33).
Washo and defendant Corey O’Brien (“O’Brien”) served as Lackawanna
County’s Democratic Majority Commissioners from January 2008 until January
2012. (Id. ¶ 21). Washo did not seek re-election. (Id. ¶ 36). In the November 2011
election, O’Brien was re-elected and defendant Jim Wansacz (“Wansacz”) replaced
Washo. (Id. ¶ 22). Wuestling did not assist O’Brien or Wansacz in the May 2011
primary or the November 2011 election and purportedly offered them de minimus
financial support. (Id. ¶¶ 35, 38).
O’Brien and Wansacz were sworn into office in January 2012. (Doc. 1¶ 23).
Shortly thereafter, O’Brien and Wansacz required non-union County employees to
re-apply for their positions in the new administration. (Id. ¶ 25). On February 5,
2012, Wansacz stated to the Times-Tribune that he and O’Brien were looking for
2
The court notes that similar lawsuits have been filed in the Middle District
against Lackawanna County for terminations which occurred shortly after other
County Commissioner elections. See, e.g., Wrightson v. Lackawanna County, No.
3:04-CV-0038; Bell, et al. v. Lackawanna County, et al., 3:08-CV-1926; Kovaleski, et
al. v. Lackawanna County, et al., 3:08-CV-737; Kalinoski v. Lackawanna County, et
al., 3:10-CV-314; Arnone v. Lackawanna County, et al., 3:10-CV-301; Nolan v.
Lackawanna County, et al., 3:09-CV-2567. (Doc. 1, ¶¶ 9-20).
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the “best people” to hire as liaisons with local governments.3 (Id. ¶ 28, Doc. 1-1, Ex.
A). Wansacz admitted that the new liaisons may have “contacts and connections”
to his and O’Brien’s recent political campaigns. (Id.) In February 2012, O’Brien
and Wansacz terminated Wuestling’s employment. (Id. ¶ 37). Wuestling’s
replacement was Andy Kudzinowski, who contributed money to Wansacz’s and/or
O’Brien’s election campaign. (Id. ¶¶ 39, 40).
Wuestling filed a two count employment discrimination complaint against
defendants on April 10, 2012. (Doc. 1). Count I alleges violations of 42 U.S.C. § 1983;
specifically, a municipal liability claim against the County and a political patronage
discrimination claim against O’Brien and Wansacz. (Id. ¶¶ 47-51). Wuestling
alleges that defendants violated his First Amendment right to free association. (Id.
¶ 49). Count II contains a pendent state law claim for wrongful termination in
violation of public policy. (Id. ¶¶ 52-55).
Defendants filed the instant motion to dismiss on June 11, 2012, pursuant to
Federal Rule of Civil Procedure 12(b)(6). In response, Wuestling withdrew his
wrongful termination claim but otherwise opposed the motion. (Doc. 16, at 14).
The motion is fully briefed and ripe for disposition.
3
At this early procedural stage, it is unclear whether these local government
liaison positions include policy-making responsibilities. See Galli v. New Jersey
Meadowlands Comm’n, 490 F.3d 265, 270 (3d Cir. 2007) (noting that political
patronage discrimination claims do not apply to positions that require political
affiliation).
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II.
Legal Standard
When ruling on a motion to dismiss under Rule 12(b)(6), the court must
“accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine, whether under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.” Gelman v. State Farm Mut.
Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. County of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Kanter v. Barella, 489 F.3d 170,
177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). The
plaintiff must plead sufficient factual content to allow the court “to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must assert sufficient facts
“to raise a reasonable expectation that discovery will reveal evidence” of the
elements necessary for relief. Bell Atlantic Corp v. Twombly, 550 U.S. 544, 556
(2007); see also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). In
addition to reviewing the facts contained in the complaint, the court may also
consider exhibits attached to the complaint and matters of public record. Pension
Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192 (3d Cir. 1993).
III.
Discussion
Defendants assert that Plaintiff’s First Amendment right to freedom of
association was not violated because Wuestling associated with O’Brien and
Wansacz during the 2011 County Commissioners campaign by signing O’Brien’s
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nominating petition4 and contributing “marginal financial support” to the two
candidates. (Doc. 15, at 8). Defendants derivatively assert that Wuestling’s
municipal liability claim must fail because the political discrimination claim against
O’Brien and Wansacz is meritless. (Id. at 9-10). Finally, defendants contend that
Wuestling is not entitled to punitive damages because there is “no evidence” that
O’Brien and Wansacz’s conduct was driven by “evil motive or intent” or that they
acted in reckless disregard of Wuestling’s First Amendment rights. (Id. at 11). The
court shall address each contention in turn.
1.
42 U.S.C. § 1983 Claim
42 U.S.C. § 1983 offers private citizens a means to redress violations of federal
law committed by state officials. Section 1983 is not itself a source of substantive
rights but instead provides a method for vindicating rights secured through the
Constitution or federal statutes. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002).
One such constitutionally protected right is the First Amendment right to freedom
of association. Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984).
Citizens have the freedom to associate for the purpose of engaging in free speech,
assembly, petition for the redress of grievances, and the exercise of religion. Id. at
4
Wuestling does not object to the defendant’s use of this document, which is
presented to the court outside of the pleadings. For the purposes of this motion, the
court assumes that the nominating petition is a matter of public record. (See Doc.
14-1, Ex. A). See also Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993) (“To decide a motion to dismiss, courts generally
consider only the allegations contained in the complaint, exhibits attached to the
complaint and matters of public record.”).
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618. Citizens also have the freedom to decline such associations with others. Id. at
623; see also Bennis v. Gable, 823 F.2d 723, 731 (3d Cir. 1987) (“A citizen’s right not
to support a candidate is every bit as protected as his right to support one.”).
The First Amendment right to free association prohibits public employers
from compelling an employee to relinquish or to adopt certain political associations
in order to secure and retain employment, unless the position includes a policymaking function necessitating political fidelity to public officeholders. See Elrod v.
Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980). To establish a
political patronage discrimination claim, a public employee must allege that he or
she experienced an adverse employment decision because of his or her opposition
to, or lack of association with, the political party or candidate in power. The
plurality in Elrod explained that the practice of “placing loyal supporters in
government jobs that may or may not have been made available by political
discharges” results in a restriction of an employee’s right to free association and
also impedes in the “free functioning of the electoral process.” 427 U.S. at 352-56.
The Elrod plurality reasoned that patronage practice improperly compels a public
employee to support a political party or candidate under the threat of dismissal for
failure to provide the expected support. Id. at 360.
To adequately state a political patronage discrimination claim, Wuestling’s
complaint must allege that (1) he was employed at a public agency in a position that
does not require political affiliation; (2) he engaged in constitutionally protected
conduct; and (3) such conduct was a substantial or motivating factor in the
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government’s employment decision. Galli v. N.J. Meadowlands Comm’n, 490 F.3d
265, 271 (3d Cir. 2007). The third prong implicitly requires sufficient factual
assertions which raise an expectation that discovery will reveal evidence of
defendants’ knowledge of the protected conduct as well as causation. Id. at 275.
Defendants assert that Wuestling’s complaint does not sufficiently plead the
second and third prongs: that he engaged in constitutionally protected conduct, i.e.,
non-association, and that such conduct was a substantial or motivating factor in
O’Brien and Wansacz’s decision to terminate him. Defendants’ entire argument
rests on its factual allegation that Wuestling actually associated with O’Brien and
Wansacz during the 2011 County Commissioners campaign by signing O’Brien’s
nominating petition and contributing “marginal financial support” to the two
candidates. (Doc. 15, at 8; Doc. 14-1, Ex. A; Doc. 1 ¶ 38).
In Bennis v. Gable, 823 F.2d 723 (3d Cir. 1987), the Third Circuit explained
that Elrod and Branti also protect plaintiffs who were not demoted due to their
political opposition but instead were demoted to “make room” for the political
supporters of the favored candidate or party. 823 F.2d at 731. The court reasoned
that “an alternative view of a demotion to make positions available for political
supporters is that the demotion thus reflects a failure to support.” Id. See also
Conjour v. Whitehall Twp., 850 F. Supp. 309, at 317 (E.D. Pa. 1994) (“The Third
Circuit has explicitly rejected the argument that Elrod and Branti should not be
extended to demotions or terminations carried out to make room for political
supporters . . . .”). In Galli v. N.J. Meadowlands Comm’n, 490 F.3d 265 (3d Cir.
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2007), the Third Circuit held that the First Amendment also protects an employee’s
complete lack of political activity, reasoning that an adverse employment action
taken simply to create positions for political supporters may also constitute political
patronage discrimination. 490 F.3d at 273.
Thus, allegations that the government replaced an employee with a political
supporter implicitly reflects the employee’s failure to support the political party or
candidate in power. Wuestling alleges that Wansacz and O’Brien terminated him:
(1) in order to “make room” for potential political patronage positions, and
(2) because Wuestling was not politically useful to them. (Doc. 1 ¶¶ 24, 38, 43).
Wuestling also alleges that O’Brien and Wansacz replaced him with Andy
Kudzinowski, who contributed money to Wansacz’s and O’Brien’s election
campaign. (Doc. 1 ¶¶ 39, 40). Therefore, Wuestling successfully asserts that he
engaged in constitutionally protected conduct by failing to support O’Brien and
Wansacz, that O’Brien and Wansacz knew of his lack of political support, and that
he was terminated and replaced with a political supporter.
The court must make the determination of whether merely signing a
nomination petition and providing “marginal” or de minimus financial support
constitutes “political support” in the context of all of the facts. Defendants are free
to explore this issue in discovery and to reassert these arguments in the form of a
Rule 56 motion. Pertinent facts will include the precise amount of financial support
or in-kind contribution which Wuestling provided to O’Brien and Wansacz as well
as any other factors that may have influenced O’Brien and Wansacz’s termination
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decision. At this procedural juncture, the court finds that Wuestling’s complaint
pleads sufficient factual content, namely that O’Brien and Wansacz “made room”
for political supporters and that Wuestling’s comparative lack of political support
was a substantial or motivating factor in his termination. The court will deny
defendants’ motion to dismiss Wuestling’s political patronage discrimination claim.
Concomitantly, Defendants’ derivative argument contra Wuestling’s municipal
liability claim against the County also fails, and Wuestling’s § 1983 claim survives in
its entirety.
2.
Punitive Damages
O’Brien and Wansacz also contest Wuestling’s claim for punitive damages
under § 1983. Punitive damages are available against individual defendants in a §
1983 claim when there is evidence that the defendants’ conduct was “motivated by
evil motive or intent” or when the defendants acted with “reckless or callous
indifference” to a person’s federally protected rights. Smith v. Wade, 461 U.S. 30, 56
(1983).
Defendants argue that there is “no evidence” that O’Brien and Wansacz’s
conduct was motivated by evil motive or intent or that they acted with reckless
disregard of Wuestling’s First Amendment rights because Wuestling initially
supported the candidacies of O’Brien and Wansacz. (Doc. 15, at 11). As Wuestling
correctly notes, defendants conflate the motion to dismiss and summary judgment
standards: there is no “evidence” of O’Brien and Wansacz’s intent at the motion to
dismiss stage. (Doc. 16, at 12). At this juncture, the court merely endeavors to
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ascertain “whether under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.” Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187,
190 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.
2008)).
Wuestling’s complaint pleads sufficient factual content to support his claim
for punitive damages based upon defendants’ alleged § 1983 violation. Wuestling
alleges that Wansacz and O’Brien terminated him to “make room” for potential
political patronage positions, and that Wuestling was no longer politically useful to
them. (Doc. 1 ¶¶ 24, 38, 43). Wuestling’s complaint also describes a number of preexisting lawsuits filed against Lackawanna County and O’Brien personally. (Id. ¶¶
9-20). Thus, the court may reasonably infer that defendants had sufficient
knowledge of the law prohibiting adverse employment decisions due to an
employee’s political association or non-association. See Alexander v. Riga, 208 F.3d
419, 431 (2000) (holding that malice and reckless indifference in the context of
punitive damages may refer to the defendant’s knowledge that he is acting in
violation of federal law).
IV.
Conclusion
For the foregoing reasons, the court will deny defendants’ motion (Doc. 13) to
dismiss. An appropriate order follows.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
Dated:
March 1, 2013
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KENT WUESTLING,
Plaintiff,
v.
LACKAWANNA COUNTY,
COREY O’BRIEN, and
JIM WANSACZ,
Defendants
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Civil Action No. 3:12-CV-660
(Judge Conner)
ORDER
AND NOW, this 1st day of March, 2013, upon consideration of defendants’
motion (Doc. 13) to dismiss, and for the reasons set forth in the accompanying
memorandum, it is hereby ORDERED that:
1.
Defendants’ motion (Doc. 13) to dismiss is DENIED.
2.
Plaintiff’s state law claim for wrongful termination is DEEMED
withdrawn.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
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