Eastman v. Lackawanna County et al

Filing 74

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Edward G. Smith on 3/6/2015. (rm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN M. EASTMAN,
CIVIL ACTION NO. 13-760

Plaintiff,
v.
LACKAWANNA COUNTY, COREY
O'BRIEN, and JIM WANSACZ,
Defendants.

MEMORANDUM OPINION
March 6, 2015

Smith, J.

The First Amendment generally prohibits public employers from taking adverse
employment actions against an employee based on their political affiliation if the employee is not
in a policy-making or advisory position.

In this action, a former director of public works for

Lackawanna County has sued the county and two of the three county commissioners because
they allegedly violated his First Amendment right of freedom of association when they
terminated his employment with the county and replaced him with an individual that associated
politically with one of the commissioners.

The defendants have moved for summary judgment

claiming that, inter alia, (1) the plaintiff has failed to produce sufficient evidence to establish a
prima facie case of political patronage discrimination, (2) the defendants would have reached the
same decision regarding the plaintiffs employment regardless of his engaging in protected
activity, and (3) the plaintiffs claims against the commissioners are barred by the doctrines of
qualified immunity and legislative immunity.

After reviewing the applicable record, the

uncontroverted evidence demonstrates that the plaintiff associated himself politically with the

two commissioners and, as such, the plaintiff cannot establish a

prima facie

case of political

patronage discrimination. Accordingly, the court will grant the motion for summary judgment.
I.

PROCEDURAL HISTORY

The plaintiff, John Eastman, commenced this action by filing a complaint on March 25,
2013, against the defendants, Lackawanna County,

Wansacz ("Wansacz").

Doc. No. 1.

Corey O'Brien ("O'Brien"), and Jim

The case was originally assigned to the Honorable

Christopher C. Conner. The defendants filed an answer to the complaint on May 28, 2013. Doc.
No. 12. The defendants filed a motion for summary judgment, statement of undisputed material
facts, appendix, and supporting brief on March 7, 2014.

Doc. Nos. 23-26.

After Chief Judge

Conner granted the plaintiff's motion to exceed certain page restrictions on March 24, 2014, the
plaintiff filed a counter statement of facts, appendix, and brief in opposition to the motion for
summary judgment.

Doc. Nos. 29-34.

The defendants then filed a response to the plaintiff's

statement of facts and a reply brief on April 10, 2014. Doc. Nos. 35, 36.
On August 13, 2014, Chief Judge Conner recused himself from the case and stayed the
matter pending redesignation to a district judge outside of the Middle District of Pennsylvania.
Doc. No. 39. The Honorable Theodore A. McKee of the United States Court of Appeals for the
Third Circuit reassigned the case to the undersigned on September 4, 2014. Doc. No. 40.
II.
A.

DISCUSSION
Factual Record

1

Three elected commissioners run the Lackawanna County government.

Pl.'s App. of

Exs. in Connection with Pl. 's Opp. to Defs.' Mot. for Summ. J. ("Pl.'s App.") at Ex. 4, Oral Dep.

1

The court has attempted to properly compile the applicable record for purposes of this motion. Unfortunately, the

parties' (in particular, the plaintiffs) statements of material facts and responses thereto are unnecessarily
argumentative and, at times, even attempt to contradict uncontroverted evidence in the record. Additionally, to the
extent that the court refers to information in the record that is not included in this recitation, the court's additional
references to the record later in this opinion are incorporated herein.

2

of Patrick M. O'Malley ("O'Malley Dep. Tr.") at 5.

The commissioners always include two

members from one political party and one commissioner from the other party.

Id.

After the

election in November 2007, O'Brien and Michael Washo ("Washo"), were two of three
individuals sworn-into office in January 2008 as county commissioners in Lackawanna County.
Pl.'s App. at Ex. 1, Rule 30(b)(6) Deposition of Lackawanna Cnty. by and Through its Designee,
Maria Elkins ("Elkins 2013 Rule 30(b)(6) Dep. Tr.") at 28.
In early 2008, and shortly after the county commissioners were sworn into office,
Lackawanna County opened up the hiring process and allowed members of the public to apply
for a variety of positions in the county. Pl.'s App. at Ex. 3, Rule 30(b)(6) Dep. of Lackawanna
Cnty. by and Through its Designee, Elizabeth Randol ("Randol 2009 Rule 30(b)(6) Dep. Tr.") at
96-97.

Thus, a large number of Lackawanna County employees, including almost all of the

cabinet-level or director-level employees, had to reapply for their positions if they wanted to
keep their jobs.

Elkins 2013 Rule 30(b)(6) Dep. Tr. at 28.

terminated the employment
employees. Id.

of numerous existing

As part of this process, the county

employees

and

hired

numerous new

The county's termination of then-existing county employees resulted in various

lawsuits against the county. Id. at 70.
During the 2008 hiring and firing period, the county created a director-level position for
the director of public works. Randol 2009 Rule 30(b)(6) Dep. Tr. at 100-01.

2

This position was

also a cabinet-level position in the county. Defs.' App. of Exs. in Supp. of Their Mot. for Summ.
J. ("Defs.' App.") at Ex. A, Oral Dep. of John Eastman ("Eastman Dep. Tr.") at 32. On January
22, 2008, the county hired the plaintiff as the director of public works at an annual salary of

2

In addition, the county eliminated the director of buildings and grounds and created a deputy director of buildings

and grounds position. Randol 2009 Rule 30(b)(6) Dep. Tr. at 100, 106-07;

see also Bell v. Lackawanna Cnty., 892

F. Supp. 2d 647, 680 (M.D. Pa. 2012) (discussing county's elimination of department of building and grounds and

creating positions of deputy director of maintenance and deputy director of roads and bridges, both of whom
reported to the newly-created position of director of public works).

3

$62,000. Elkins 2013 Rule 30(b)(6) Dep. Tr. at 47, 48; Eastman Dep. Tr. at 30; Defs.' App. at
Ex. B, January 16, 2008 Lackawanna Cnty. Salary Bd. Meeting Minutes; Defs.' App. at Ex. C,
Lackawanna Cnty. Personnel Report.

The plaintiff has a bachelor's degree in business

administration, operations management from Penn State University, and a master's degree in
engineering, environmental pollution control, and facilities management also from Penn State.
Eastman Dep. Tr. at 6-7. The plaintiff is also a licensed plumber and electrician. Id. at 7-8.
As Lackawanna County's director of public works, the plaintiff's activities, duties, and
accomplishments were as follows:
•

He participated on the selection and design team for office space for magisterial district
justices.

Eastman Dep. Tr. at 38.

Although he did not fully negotiate the lease, he did

discuss the range that the county typically pays for its leases with the landlord. Id. at 39.
•

He participated in cabinet meetings on an at least monthly basis. Id. at 32.

3

As part of

his duties, he would prepare cabinet meeting reports prior to the meetings. Id. at 34.
•

He worked with the county architect and engineer in preparing bid specifications for
county projects. Id. at 35. He would also review the bids with the architect and engineer
4
to ensure that they complied with the specifications. Id. at 35, 36, 37.

•

Although FEMA initially determined that the county was ineligible for funding for
certain bridge and road repairs, he worked with FEMA and eventually caused FEMA to
change course and provide about a million dollars in funding to the county. Id. at 40, 41,
62-63. This also included the plaintiff working with various municipalities to try to get
them the FEMA funds. Id. at 41.

•

He oversaw, developed, and maintained over thirty county site locations including office
buildings, facilities, grounds, roads, bridges, and the recycling department. Id. at 44-45;
5
Elkins 2013 Rule 30(b)(6) Dep. Tr. at 34, 35.

•

He directed one deputy director, Larry Lukasik, one manager, Mamie Palmer, and
supervised 35 employees and subcontractors covering three departments. Eastman Dep.
Tr. at 46-47.

3

The three departments included the department of roads and bridges, the

The plaintiff indicated that the cabinet meetings were "so the right hand and the left hand knew what [they] were

doing within the county." Eastman Dep. Tr. at 34.

4
5

The lowest bidder typically won the job. Eastman Dep. Tr. at 37.
The recycling department was not a recycling center; instead, it was an educational program. Eastman Dep. Tr. at

45. The plaintiff was in charge of the department's two employees.

department as the office of environmental sustainability.

Id.
4

Id. The county eventually retitled this

department of maintenance, and the office of environmental sustainability. Id at 45-46,
132-33.

•

He "was the project manager for the county. [He] represented the county." Id at 47.

•

He interfaced with various county operating authorities, including the county minor
league baseball stadium, trolley museum, nursing home, amphitheater, parks, and the
district attorney's office, and acted as the county expert about their various facility
construction projects, repairs, and improvement projects. Id. at 47-48.
o

For the minor league baseball stadium, he rectified issues with leaks and drainage
problems.

Id at 48.

In addition, through his suggestion, the project included

placing boulders (instead of fences) around the stadium for security purposes. Id.
at 48.
o

For the trolley museum, he guided the rebuilding of the roof structure and he
placed people there to ensure that the facility was clean and safe. Id. at 49.

o

For the nursing home, he guided the construction of offices in the nursing home.
Id. at 49.

o

For the amphitheater, he visited that facility on numerous occasions because of
issues with the stage, plumbing, and pavement. Id. at 49.

The facility also had

"vending" issues and a problem with snakes. Id.
o

For the parks, he directed the placement of a bridge in the park for the walking
trail. Id. at 49-50.

o

o

He supervised the updating/modernizing of various county offices. Id. at 50.
He directed the construction of platforms to allow for the accessibility of various
aspects of the courtroom to disabled judges and members of the public. Id.

•

•

He worked with the accounting department to prepare budgets for his department, and he
also prepared project budgets. Id. at 50-51.
He acted as an "owner representative" for the county at contractor construction meetings.
Id. at 51-52. He served as the liaison for the county for any issues with the contractors.
Id. at 52.

•

He engaged in regular contact with members of the community regarding issues
involving, inter alia, flooding and road drainage. Id. at 53.

•

He, along with the input of the commissioners and the chief of staff, set and monitored
department objectives, achievements, and milestones. Id. at 53-54, 55.

5

o

One of the major objectives was making the county buildings much more
accessible for individuals with disabilities.

Id. at 53-54.

In this regard, he

participated in and supervised the county making the second-floor courtrooms
more accessible, installing elevators, and creating areas of refuge for disabled
individuals in the event of an emergency. Id. at 54.
o

He was able to initiate the creation of a fire alarm system, which was passed for
approval as part of the county budget. Id.

•

He cured a problem that had lasted for seven or eight years prior to his start as director of
public works by fixing a leak in the roof of the administration building. Id. at 54. He
also was able to persuade the county to replace the roof, and he worked with the
commissioners to set aside money for this project. Id. at 54- 55.

•

He served on the county safety committee, which consisted of various department heads.
Id. at 55.

This committee had quarterly meetings to ensure that the county employees

and members of the public were safe when they were at county facilities/properties. Id.
at 55-56. The plaintiff also assisted with the county obtaining defibrillators and getting a
stair wheelchair to get people down if there was an emergency. Id. at 56-57.
•

He served as the county representative on the county continuation of county government
committee. Id. at 57. He facilitated this committee and "made things happen" such as
what would happen if a bridge was out and they needed to get around it. Id. at 57-58.

•

He developed job-performance standards to ensure that his employees actually worked
for the requisite hours per day. Id. at 58. He also explained to the employees that they
were to use industrial engineering standards, and he created standards for "how much
space that is supposed to be cleaned and how many toilets they're supposed to clean in an
hour and what they're supposed to look like at the end."

Id. at 58-59.

He developed

policies for "when the stairs get cleaned, when the bathrooms get cleaned, when things
get done, when pumps ha[ve] to be replaced, what room filters had to be changed and
things of that nature." Id. at 59. He also implemented standards, policies, and procedures
for when items needed repair and when bridges needed to be inspected. Id. at 60-61. He
wrote out some of the standards and provided them to the employees. Id. at 59.6
•

The county had been having issues with numerous evacuations out of fear of the
employees receiving carbon monoxide poisoning, and through his implementation, a
company installed a relay system to stop carbon monoxide from entering the county
government building. Id. at 59-60.

•

He approved all purchases, payroll and project specifications within the department's
three-million-dollar operating and approximately five-million-plus capital improvement
budget. Id. at 61-62.

6

The plaintiff was unsure whether he ever reduced the procedures to a written document. Id. at 61.
6

•

•

•

•

•

•

•

•

•

•

•

He estimates that he saved the county taxpayers over $885,000 during his first eight
months as the director of public works by implementing job performance standards,
energy and utility savings, and product pricing negotiation. Id. at 64. This included the
plaintiffs assessment that the county should terminate the employment of 10 to 12
employees that were not working enough. Id. at 64. The plaintiff recommended the
layoffs to the commissioners, and the commissioners followed the recommendation. Id.
at 64-65. It also included the plaintiffs ability to negotiate with vendors for reduced
rates on various pieces of equipment. Id. at 65-67.
He served on the county's labor-management relations board. Id. at 69-70. During his
last two years of service with the county, the county created this board to address issues
with the union regarding employee complaints over such things as the cleanliness and
accessibility of the bathrooms and an issue with the work stations in the judicial records
department. Id. at 69-70.
He participated in the grievance process for his employees, which included resolving
employee complaints and disciplining his employees for not properly performing their
jobs. Id. at 71, 79, 94. Through this process, he also worked with human resources. Id.
at 71.
He submitted recommendations for solutions to policy or reporting problems. Id. at 7374.
He assigned employees to do work and evaluated the quality of the work performed. Id.
at 74-75.
He set the priorities for his employees and trained his employees. Id. at 75.
He served as a team leader, recommended employees for awards, and interviewed
individuals for vacant positions. Id. at 77-78.
He recommended individuals for vacant positions, and he participated with human
resources and the commissioners with reviewing the applications. Id. at 78.
He approved leave for his employees. Id.
With regard to discharging employees, he would recommend that the county discharge an
employee. Id. Thereafter, he worked with human resources to terminate the employee.
Id. at 79. Not all of the plaintiffs recommendations resulted in terminations. Id. at 7980. He had the authority to terminate an employee once the county commissioners
approved the termination. Id. at 64, 65.
He served on a six-member search committee to select possible architects or engineers
for the county stadium. Id. at 80. He also participated in interviews of particular
candidates. Id. at 81.

7

•

His ''job functions [were ] a multitude of a lot of things," as he has "corrected engineers,
.
.. corrected architects[, ... redesigned space, ...redesigned magistrates ' offices
]
because of his input and found things wrong." Id. at 130.
2011 was an election year for the Lackawanna County Commissioners. Elkins 2013 Rule

the plaintiff paid $250 to the Friends of Wansacz
30(b)(6) Dep.Tr. 29. In September 2011,
at
and OBrien,
'
the political committee of O'Brien and Wansacz, participate in a campaign golf
to
outing. Eastman Dep. Tr. at 108,100,112,118. Although the plaintiff recognized that the
county had a policy preventing him from being a "vocal " supporter of a candidate,he also
recognized that the golf outing was to raise m ney for the political committee. Id at 109,
114.

l

Although the plaintiff asserts that he attended the events because he wanted to golf,eat a good
meal,and network with his "fellow people," he acknowledged that he was there to support
O'Brien and Wansacz "because they re going to be your boss." Eastman Dep.
'
Tr. at 108,
11417. The plaintiff saw Wansacz and O'Brien at the golf outing,and they thanked him for being
there. Id at 118.The plaintiff also had his picture taken with them. Id at 118-19.
In November 2011, Lackawanna
commissioners.

County held the election for the three county

Elkins 2013 Rule 30(b)(6) Dep. Tr. at 29. O'Brien and Wansacz, both

Democrats,won two of the positions and Patrick O'Malley, a Republican, won the other
position. Id. at 29,
30; OMalley Dep. Tr. at 4, 6,
'
5, 41. OBrien and Wansacz,as Democrats,
'
constituted the majority commissioners, and OMalley was the minority commissioner. Elkins
'
2013 Rule 30(b)(6) Dep.
Tr. 29-30; OMalley Dep. Tr. 6.
at
'
at
In December 2011, despite not yet having been sworn into office, Commissioner
Wansacz created a search committee that was responsible for reviewing the duties of various
county employees.

Eastman Dep. Tr.at 100; Defs.' App. at Ex.F,O Deposition of Jim
ral

8

7
Wansacz ("Wansacz Dep. Tr.") at 14. The plaintiff met with this committee. Eastman Dep. Tr.
at 100.
The three county commissioners were sworn into office in January 2012. Compl. at� 22;
Answer at � 22; O'Malley Dep. Tr. at 5.

The plaintiff provided The Friends of Wansacz and

O'Brien with a check dated January 19, 2012, in the amount of $150.00, for him and his wife to
attend the inauguration dinner for O'Brien and Wansacz.

Eastman Dep. Tr. at 119-20.

The

plaintiff and his wife attended the inauguration dinner, they saw O'Brien and Wansacz at the
event, and O'Brien and Wansacz thanked him for coming and said that it was nice meeting his
wife. Id. at 120.
Other than the two checks, the plaintiff did not provide any additional money to the
campaign of Wansacz and O'Brien, he did not attend any other political events, place signs in his
yard, place bumper stickers on his vehicle, work the polls, or make phone calls for them. Id. at
121, 161-62. He did not provide any help to their campaigns other than financial support and
attendance at the golf outing. Id. at 122. The plaintiff "probably told" his mother to vote for
O'Brien and Wansacz. Id. at 122. The plaintiff also believes that he voted in that election and
voted for O'Brien and Wansacz despite not living in Lackawanna County at the time of the
election. Id.
Shortly after the three commissioners were sworn into office in January 2012, the county
announced via letter to some of the existing employees that it was going to place advertisements
in the newspaper indicating that it was accepting applications for various positions in the county.
Elkins 2013 Rule 30(b)(6) Dep. Tr. at 16; O'Malley Dep. Tr. at 5; Eastman Dep. Tr. at 95; Defs.'

7

O'Brien stated that "after the election of Commissioners Wansacz and O'Malley, before they come in, ... they

should take a fresh look at the county and our cabinet-level employees, the decision-makers, policymaker folks and
also anyone who [they] had a question about what it was1 they did and that we should take a fresh look at those
people, because [O'Brien] was the only commissioner remaining." O'Brien Dep. Tr. at 72.

9

App. at Ex. E, Oral Dep. of Lackawanna Cnty. Commissioner Corey O'Brien ("O'Brien Dep.
Tr.") at 68, 70. 8 To the extent that those advertisements related to positions that were currently
held by county employees, the county advised those individuals that they could submit their
resumes and reapply for the positions. Elkins 2013 Rule 30(b)(6) Dep. Tr. at 16; O'Brien Dep.
Tr. at 70.

9

The county did not provide the employees with a reason for why they had to reapply

for their jobs; instead, they were told that they were in appointed positions and the county was
looking for the most qualified individuals to fill the roles. Elkins 2013 Rule 30(b)(6) Dep. Tr. at
16, 17.
The January 2012 advertisements included advertisements for 28 deputy or deputy
director positions and 15 to 20 solicitorships.

Id at 17.

Essentially, all nonunion, noncivil

service employees had to reapply to potentially keep their jobs. Id at 72.
The county advertised the position of director of public works, and the plaintiff was one
of the county employees that received a letter from the commissioners inviting him to reapply for
county employment.

Eastman Dep. Tr. at 95; Elkins 2013 Rule 30(b)(6) Dep. Tr. at 50.

10

The

letter provided the plaintiff with a number to call if he wanted to interview, and he called the
number and the commissioners eventually interviewed him. Eastman Dep. Tr. at 96. Prior to the
interview, the plaintiff talked to various people about possibly favorably speaking to the
commissioners on his behalf. Id. at 97-98.
The plaintiff participated in an interview with the three commissioners in February 2012.
Id. at 100-01.

8

The interview lasted approximately 75 minutes.

Id.

During the interview, the

Both O'Brien and Wansacz stated that part of the interview process was so they (in particular the newly-elected

Wansacz) could gain a better understanding of what each employee did in the county. O'Brien Dep. Tr. at 68, 71;
Eastman Dep. Tr. at 100.

9

In 2009, 2010, and 2011, the county did not require existing employees to reapply for their positions. Elkins 2013

Rule 30(b)(6) Dep. Tr. at 27, 29; O'Brien Dep. Tr. at 70.
'0

The plaintiff received his letter after the inauguration dinner. Eastman Dep. Tr. at 121.

10

plaintiff told the commissioners that he was there to help them look good, and he would do his
"best to make sure that you always look good and, you know, the buildings, grounds, roads and
bridges will be done in an impeccable standard." Id. at 103. The commissioners also informed
the plaintiff that they were thinking of restructuring his position, "going in a little different
direction with you," and possibly reassigning some of his duties. Id. at 104.
During the interview process, the commissioners also interviewed Chester Lenceski for
the director of public works position. O'Malley Dep. Tr. at 64; Defs.' App. at Ex. H, Oral Dep.
of Chester A. Lenceski, III ("Lenceski Dep. Tr.") at 26. Lenceski has a high school diploma, and
he had prior work experience as a carpenter and as the head of preventative maintenance for
Clarks Summit State Hospital. Lenceski Dep. Tr. at 5-20; Pl.'s App. at Ex. 7 , Lenceski Resume.
Lenceski had received notice of the job posting via a newspaper posting, and he applied for the
job thereafter. Lenceski Dep. Tr. at 23.
Lenceski is a registered Democrat, and pnor to the 2011 primary election, he had
provided $500 to the Wansacz campaign while attending a fundraising event with his wife at the
11
Scranton Country Club.
Id. at 38, 40-42.

Lenceski had also been to a function for Wansacz

when Wansacz previously ran for another political office.

Id. at 43-44.

Lenceski refers to

Wansacz as Jimmy, had been to his house for a New Year's Eve party "years ago," and went to
high school with Wansacz's wife and is friends with her on Facebook. Id. at 47-50.

12

At some point after the plaintiffs interviews, O'Brien and Wansacz informed their thenchief of staff, Maria Elkins, that they were going to terminate Eastman's employment with the

11

At the time, Wansacz was running with another candidate - Mr. Jeffers - who, unlike Wansacz, was unsuccessful

in that year's primary election. Lenceski Dep. Tr. at 40-41. In addition, at the time of the donation, Lenceski's wife
was not working and, as explained later, he and his family were living at his mother's home to save money.

Id at

43.
12

Lenceski and his family have lived and continue to live in his mother's home. Lenceski Dep. Tr. at 23-25.

Lenceski first met Wansacz when he visited Lenceski's mother's home while he was campaigning for another
political office.

Id at 44.
11

13
county. Elkins 2013 Rule 30(b)(6) Dep. Tr. at 13-14.

O'Brien and Wansacz, as the majority

commissioners, could render hiring and firing decisions without input by

the minority

commissioner, O'Malley. O'Malley Dep. Tr. at 20-21. Thus, O'Malley was excluded from all
termination decisions. Id. at 30-31.
O'Brien and Wansacz told Elkins to tell the plaintiff of his discharge. Elkins 2013 Rule
30(b)(6) Dep. Tr. at 14.

They also told her that they were going to change the position of

director of public works to director of maintenance. Id. at 51. They did not inform Elkins of the
reason for discharging the plaintiff. Id. at 134-35.

14

15
In late-March 2012, Elkins informed the plaintiff of his termination. Id. at 39.
Despite
the late-March notice, the county permitted the plaintiff to conclude his county employment on
April 2, 2012, so he could have the extra month of employment benefits. Eastman Dep. Tr. at
39, 143; Elkins 2013 Rule 30(b)(6) Dep. Tr. at 53, 56, 57, 60. At the time of his termination, the
plaintiffs annual salary was approximately $65,000. Eastman Dep. Tr. at 142-43.
In or around the time of the plaintiffs firing, the county commissioners decided to hire
Lenceski. Elkins 2013 Rule 30(b)(6) Dep. Tr. at 51, 52, 53, 54; O'Brien Dep. Tr. at 92-95.

In

particular, O'Brien and Wansacz signed a request for approval to hire Lenceski that was dated
March 28, 2012. Id. at 53, 54, 55; Pl.'s App. at Ex. 8, 3-28-12 Request for Approval of Hire.

16

The request indicated that the county was hiring Lenceski for the position of director of public

13

Elkins started her employment with the county in 2008 as the deputy director ofhuman resources. Elkins 2013

Rule 30(b)(6) Dep. Tr. at 13. In February 2009, she became the chiefofstaff.
14

Id

Elkins did not participate in the early 2012 interview process because her position was "up for interview as well."

Elkins 2013 Rule 30(b)(6) Dep. Tr. at 15.
15

At no point prior to his termination did the plaintiff inform O'Brien or Wansacz that he did not support them

politically. Eastman Dep. Tr. at 123. The plaintiff acknowledges that they would have had no reason to believe that
he was not supporting them politically.
16

Id.

A majority ofthe county commissioners make hiring and firing decisions. O'Malley Dep. Tr. at 20-21. O'Malley

was not involved in any meeting during which the commissioners discussed the termination ofthe plaintiff's
employment with the county, and he did not vote on any such termination.
plaintiffs discharge af hearing about it from his secretary.
ter

12

Id. at 15.

Id. at 14. O'Malley learned about the

17
works. Elkins 2013 Rule 30(b)(6) Dep. Tr. at 54.
Lenceski' s start date with the county was on
April 3, 2012, and his annual salary was $44,000. Id. at 55, 64; Lenceski Dep. Tr. at 30, 32-33,
36, 55.
During a Salary Board meeting on April 25, 2012, the county (1) eliminated the director
of public works position, (2) created the position of director of maintenance, (3) eliminated the
deputy director of roads and bridges position, and (4) created the position of director of roads
and bridges. O'Brien Dep. Tr. at 91, 101-04; Elkins 2013 Rule 30(b)(6) Dep. Tr. at 9-10, 38-39;
Pl.'s App. at Ex. 9, Salary Bd. Meeting Minutes for 4-25-12. Larry Lukasik became the director
of roads and bridges and Lenceski became the director of maintenance. Eastman Dep. Tr. at 131,
133; O'Brien Dep. Tr. at 95.
B.

Standard - Motion for Summary Judgment

A district court "shall grant summary judgment if the movant shows that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a).

Additionally, "[s]ummary judgment is appropriate when 'the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law."' Wright
(quoting Orsatti

v.

v.

Corning, 679 F .3d 101, 103 (3d Cir. 2012)

NJ State Police, 71 F.3d 480, 482 (3d Cir. 1995)).

An issue of fact is

"genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving
party."

Anderson

v.

Liberty Lobby, Inc. 477 U.S. 242, 248 (1986).

A fact is "material" if it

"might affect the outcome of the suit under the governing law." Id.

17

Elkins explained that the county needed to place Lenceski in the Director of Public Works position first before

eventually changing it to Director of Maintenance. Elkins 2013 Rule 30(b)(6) Dep. Tr. at 38-39.

13

The party moving for summary judgment has the initial burden "of informing the district
court of the basis for its motion, and identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
"
477 U.S. 317, 3 23 (1986) (internal quotation marks omitted). Once the moving party has met
this burden, the non-moving party must counter with "'specific facts showing that there is a
genuine issue for trial."' Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (citation omitted); see Fed.R.Civ.P.56(c) (stating that "[a] party asserting that a fact ...is
genuinely disputed must support the assertion by ...citing to particular parts of materials in the
record ... or ...[by] showing that the materials cited do not establish the absence ... of a
;
genuine dispute"). The non-movant must show more than the "mere existence of a scintilla of
evidence" for elements on which the non-movant bears the burden of production. Anderson, 477

U.S. 242, 252 (1986). Bare assertions, conclusory allegations, or suspicions are insufficient to
defeat summary judgment.See Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d

Cir.

1982) (indicating that a party opposing a motion for summary judgment may not "rely merely
upon bare assertions, conclusory allegations or suspicions"); Ridgewood Bd. o Educ. v. NE. f
f
or

ME., 172 F. 238, 252 (3d Cir.1999) (explaining that "speculation and conclusory allegations"
3d
do not satisfy non-moving party's duty to "set forth specific facts showing that a genuine issue of
material fact exists and that a reasonable factfinder could rule in its favor.
"). Additionally, the
non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and
provide some evidence that would show that there exists a genuine issue for trial. Jones v.
"
United Parcel Serv., 214 F. 402, 407 (3d Cir.
3d
2000).Moreover, arguments made in briefs "are

not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary

14

judgment motion." Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F. 110 3, 1109-10
2d
( 3d Cir.1985).
"When considering whether there exist genuine issues of material fact, the court is
required to examine the evidence of record in the light most favorable to the party opposing
summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v.
Potter, 476 F.3d 180, 184 ( 3d Cir.2007). The court must decide "not whether ...the evidence

unmistakably favors one side or the other but whether a fair-minded jury could return a verdict
for the plaintiff on the evidence presented." Anderson, 477 U.S.at 252. "Where the record taken
as a whole could not lead a rational trier of fact to find for the non-moving party, there is no
'genuine issue for trial"'and the court should grant summary judgment in favor of the moving
party. Matsushita Elec. Indus. Co., 475 U.S.at 587 (citation omitted).
C.

Analysis

The plaintiff brings the instant action under 42 U.S.C. § 198 3, which provides

m

pertinent part as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage,of any State or Territory or the District of Columbia,subjects,or causes to
be subjected, any citizen of the United

States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law,suit in equity,or other proper proceeding for redress,except that in
any action brought against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief

shall not be granted unless a

declaratory decree was violated or declaratory relief was unavailable.
Id. " Section 198 3 'is not itself a source of substantive rights,'but merely provides 'a method for

vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994)
(quoting Baker v. McCollan, 44 3 U.S.1 37,144 n.3 (1979)). "The first step in any such claim is
to identify the specific constitutional right allegedly infringed." Id. (citations omitted).

15

Here, the plaintiff asserts that the defendants discriminated against him because he
exercised his First Amendment right of freedom of association.

Compl. at � 49.

The First

Amendment, applied to the states through the Fourteenth Amendment, protects individuals'
rights to "associate with others for the common advancement of political beliefs and ideas."
Kusper

v.

Pontikes,

414 U.S. 51, 56 (1973) (citations omitted). To establish

aprimafacie case

for discrimination on the basis of political affiliation (or political patronage), an employee must
prove that "(I) [the employee] was employed at a public agency in a position that does not
require political affiliation, (2) [the employee] was engaged in constitutionally protected
conduct, and (3) this conduct was a substantial or motivating factor in the government's
employment decision." Galli

v.

New Jersey Meadowlands Comm 'n,

490 F.3d 265, 271 (3d Cir.

2007) (citation omitted). If the employee satisfies these elements the governmental entity "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.
(quoting Stephens

v.

Kerrigan,

122 F.3d 171, 176 (3d Cir. 1997)).

In the instant motion for summary judgment, the defendants raise six arguments in
support of their assertion that the court should grant the motion. The first three arguments relate
to their claim that the plaintiff has failed to establish a prima facie case: First, the defendants
claim that the plaintiff has not established the first element of the prima facie case because his
former position as director of public works for the county required political affiliation and was
therefore exempt from First Amendment protection.

See Defs.' Br. in Supp. of Mot. for

Summary J. ("Defs.' Br.") at 5-10. Second, the defendants contend that the plaintiff was not
engaged in constitutionally protected conduct because he was actually affiliated with O'Brien
and Wansacz. Id. at 10-12. Third, the defendants argue that the plaintiff has failed to produce

16

sufficient evidence to satisfy the third element of the prima facie case insofar as he cannot show
that his exercise of his First Amendment rights was a substantial or motivating factor in the
county's decision to terminate his employment because O'Brien and Wansacz did not know of
his alleged non-affiliation with them. Id. at 13.
For their fourth argument, the defendants assert that even if the plaintiff has produced
sufficient evidence to establish a prima facie case of political patronage discrimination, the court
should still grant their motion because the evidence demonstrates that they would have reached
the same decision to eliminate the director of public works position regardless of whether the
plaintiff exercised his First Amendment rights.
arguments relate to immunity issues:

Id. at

14-16.

The defendants' final two

they claim that O'Brien and Wansacz are entitled to

qualified immunity and legislative immunity for their actions.
As discussed below, the court has reviewed the evidence of record in the light most
favorable to the plaintiff, as the party opposing summary judgment, and has resolved any
reasonable inferences in his favor. Nonetheless, the evidence in the record shows that no fair­
minded jury could find in the plaintiffs favor because he cannot establish the second and third
elements of a prima facie case.
1.

The Plaintiff was not Engaged in Constitutionally Protected Conduct

For purposes of this motion only, presuming that the evidence in the record satisfied the
first element of the prima facie case,

i.e. that he was employed at a public agency in a position

that does not require political affiliation; the plaintiff would also have to show that he engaged in
constitutionally protected conduct.

A plaintiff can satisfy the second prong of a

political discrimination claim if the plaintiff:

prima facie

(1) "suffers because of active support for a losing

candidate within the same political party;" (2) "fail[s] to support the winning candidate;" or (3)

17

"fail[s] to engage in any political activity whatsoever."

Galli

v.

New Jersey Meadowlands

Comm 'n, 490 F.3d 265, 272-73 (3d Cir. 2007) (citations omitted).
The defendants contend that the plaintiff was not engaged in constitutionally protected
conduct because "[i]t is undisputed that [he] was a political supporter of Messrs. O'Brien and
Wansacz and actively supported them in the 2011 County commissioners' election." Defs.' Br.
at 10. In this regard, they point out that the plaintiff contributed to The Friends of Wansacz and
O'Brien, attended a campaign golf outing, voted for them, probably encouraged his mother to
vote for them, and attended their inauguration party. Id. Because of this undeniable support for
O'Brien and Wansacz, the defendants assert that the plaintiff has not implicated any right of non­
association that would be actionable and, as such, no reasonable jury could conclude that the
plaintiff did not support 0' Brien's and Wansacz's campaigns. Id. at 10-12.
In response to the defendants' arguments, the plaintiff contends that "[t]he evidence
reveals that [he] was terminated for his political non-association with defendants Wansacz and/or
O'Brien."

Pl.'s Br. at 9.

The plaintiff maintains that the First Amendment prohibits the

defendants from taking adverse employment actions simply to "make room" for political
supporters.

Id. at 12-14.

The plaintiff insists that the defendants violated this principle when

they fired him, to make room for and eventually replace him with Lenceski, an individual that
supported Wansacz by, inter alia, contributing $500 to Wansacz's campaign and attending prior
political rallies. Id. at 12, 15. He also notes that Lenceski went to high school with Wansacz's
wife, went to a New Year's Eve party at Wansacz's home, lives in the same town as Wansacz,
and is friendly with Wansacz's wife. Id. at 12.
Although the plaintiff recognizes the defendants' references to the alleged incidents of his
support to Wansacz and O'Brien, he argues that the Constitution does not require him to

18

completely support or shun a candidate and, regardless, the evidence demonstrates that he did not
actually politically support Wansacz or O'Brien. Id. at 15-17. With regard to the golf outing and
$250 contribution to The Friends of Wansacz and O'Brien, the plaintiff notes that he testified at
his deposition that he attended the outing merely to play golf, enjoy a meal, and network with
contractors that he dealt with on a regular basis. Id. at 16. Concerning the inauguration party,
the plaintiff insists that he was there to support his new bosses and doing so does not constitute
political affiliation with O'Brien and Wansacz.

Id.

He characterizes those instances as

"marginal" support and not as "active political associations." Id. at 15-16. Moreover, he claims
that those instances are particularly minimal when compared to the "significant political and
personal relationship" between Lenceski and Wansacz.

Id. at 17.

Therefore, the plaintiff

contends that the court should reject the defendants' arguments that he did not engage in
constitutionally protected conduct and a jury should determine whether the plaintiff was a
political associate of O'Brien and Wansacz. Id. at 19-20.
After reviewing the evidence, the court agrees with the defendants that no reasonable jury
could possibly find that the plaintiff engaged in constitutionally protected conduct as applicable
18
to this type of political patronage case.
As indicated above, the Constitution protects various
forms of association, including the "freedom not to associate."

See Roberts v. United States

Jaycees, 468 U.S. 609, 623 (1984) ("Freedom of association therefore plainly presupposes a
freedom not to associate."); 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.").

18

The court recognizes that in essence, the act of supporting Wansacz and O'Brien's campaigns would be a

protected form of political activity. It is only in the nature of this type of case, where the plaintiff is alleging that he
was discriminated against because of political patronage, that this type of conduct could not satisfy the second
element of the primafacie test.

19

The issue with the evidence in this case is that the plaintiffs right of non-association is not
implicated here.
In the first instance, it is undeniable that the plaintiffs campaign contribution to The
Friends of Wansacz and O'Brien acts in a manner to associate him with them. See Buckley

v.

Valeo, 424 U.S. 1, 21 (1976) ("Making a contribution, like joining a political party, serves to
affiliate a person with a candidate.

In addition, it enables like-minded persons to pool their

resources in furtherance of common political goals."); see also Fed. Election Comm 'n

v.

Republican Fed. Campaign Comm., 533 U.S. 431, 440 (2001) ("Spending for political ends and
contributing to political candidates both fall within the First Amendment's protection of speech
and political association."); Philadelphia Fire Fighters' Union Local 22, AFL-CIO

v.

City of

Philadelphia, 286 F. Supp. 2d 476, 480 ("A contribution to a political cause constitutes speech
and association that the First Amendment protects.").

In addition, courts have held that

participating in a political function or a campaign rally constitutes political association. See, e.g.,
D 'Orazio

v.

Washington Twp., No. 07-5097, 2010 WL 3982287, at *5 (D.N.J. Oct. 7, 2010)

("There is no defined quantum of participation that is required to establish a protected political
association-courts have found discrimination based on as little activity as 'stuffing envelopes,
speaking to individual members of the public, attending political functions and attending at least
one campaign rally."' (quoting Frangione
2565104, at *3 (D.N.J. June 24, 2008)).

v.

Township of Edison, Civ. No. 06-2046, 2008 WL

Voting for an individual is also an expression of

association with a particular candidate. See Berg

v.

Egan, 979 F. Supp. 330, 336 (E.D. Pa. 1997)

(explaining that "the free association right implicated when a candidate's name is removed from
the ballot if the free association right of the voter who wishes to associate with the candidate by
casting his or her vote in the candidate's favor" (citing Bullock

20

v.

Carter, 405 U.S. 134 (1972)).

Here, the plaintiff, despite asserting that Lackawanna County policy prevented him from
being a "vocal supporter" of a candidate, attended a political function in the nature of a golf
outing for The Friends of Wansacz and O'Brien in mid-September 2011. See Eastman Dep. Tr.
at 109-18. He acknowledged that the $250 check that he wrote to this political committee went
(at least in part) towards supporting O'Brien and Wansacz to get elected. Id. at 116-17, 118. He
saw O'Brien and Wansacz while at the outing, they thanked him for coming, and he even had his
picture taken with them. Id. at 118-19.
In addition to these overt demonstrations of political support for Wansacz and O'Brien,
the plaintiff decided that he also would pay $150 to The Friends of Wansacz and O'Brien to
attend

Wansacz

and

O'Brien's

inauguration

party

in

January

2011.

at

Id.

119-20.

Approximately 400 to 500 people attended the party, and the plaintiff brought his wife to the
event as well. Id. at 120. Once again, the plaintiff and his wife saw O'Brien and Wansacz at the
event, had them thank him for coming and indicate that they enjoyed meeting his wife. Id. at
120.
The plaintiffs explanations for these contributions; namely, that he attended the golf
outing "to play golf, enjoy a meal and network," or that he attended the inauguration party
simply to show "respect for his bosses," could not change these association to non-association
because by the acts' very nature, they (in particular the attendance and contribution for the golf
19
outing, a campaign event) constitute forms of association.

The plaintiff has not cited to any

case indicating that somehow his alleged intent could change otherwise overt acts of political
association to non-association and any such attempt would be inconsistent with the prevailing
law in this country in First Amendment cases. See, e.g., Federal Election Comm 'n
19

v.

Wisconsin

To the extent that the plaintiff might be attempting to argue that he did not want Wansacz and O'Brien to win the

election; this argument is belied by his acknowledgement that he voted for them despite the fact that it is unclear
whether he was living in Lackawanna County at the time of the election.

21

Right to Life, Inc., 551 U.S. 449, 467-69 (2007) (rejecting to adopt a test for as-applied

challenges to political speech that would "turn[] on the speaker's intent to affect an election"
because, inter alia, "[f]ar from serving the values the First Amendment is meant to protect, an
intent-based test would chill core political speech by opening the door to a trial on every ad ...
on the theory that the speaker actually intended to affect an election, no matter how compelling
the indications that the ad concerned a pending legislative or policy issue").
In addition, while the plaintiff attempts to create a classification of non-association by
designating his activities as not constituting "active political associations," he has not cited any
relevant legal support for this principle and this court has found none. He also designates his
activities as not constituting "active political associations" despite conversely characterizing
Lenceski's actions in relation to this particular political campaign, namely a $500 campaign
contribution prior to the primary election and attendance at one unknown-type of political event,
as active political association.
characterizations.

20

The plaintiff provides no legal support for the differences in his

Moreover, contrary to the plaintiffs assertion, simply because he did not

attend any other political events, use bumper stickers, post campaign yard signs, work at the

20

Lenceski's personal political support of Wansacz (there is no evidence that he expressly supported O'Brien) in the

county commissioner's race was very similar to the plaintiffs support, especially considering the prohibitions from
participating in political activity that the plaintiff believed were on him because he was a county employee. Both
men attended a campaign event and contributed money toward the campaign. The plaintiff asserts that Lenceski's

$500, under what he characterizes as difficult financial circumstances for Lenceski at the time, rendered
see Pl.'s Br. at 11, whereas the plaintiff, who gave $250, only somehow provided marginal
support. Id at 16.
donation of

him as a "large donor,"

The greater distinction between the two men, per the plaintiff, was Lenceski' s maintenance of a friendship
with Wansacz's wife, with whom he attended high school, the fact that Wansacz currently lives in the same town as
Lenceski, Wansacz's visit to Lenceski's mother's house (while Lenceski resided there) during a prior campaign, and
Lenceski's attendance at Wansacz's house for a New Year's Eve party years ago.
Dep. Tr. at

50.

Id. at 11-12; see also Lenceski

The plaintiff also references campaign contributions by Lenceski's uncle, Ron Koldjeski ("Koldjeski"), to

2007. Pl.'s Br. at 11. It appears that he gave almost $9,000 to that
11, 12. The plaintiff has attempted to link these contributions to O'Brien's decision to
hire Lenceski despite (1) the contributions occurring in 2007, (2) Lenceski testifying that he did not tell Koldjeski
that he was applying for county employment, see Lenceski Dep. Tr. at 39, (3) no evidence in the record showing that
O'Brien or Wansacz knew Lenceski was Koldjeski's nephew, and (4) O'Brien's testimony that he never saw
Koldjeski prior to his job interview, see O'Brien Dep. Tr. at 97-98.
O'Brien's campaign for county commissioner in

campaign. Pl.'s App. at Exs.

22

polls, or make phone calls,

see

Pl.'s Br. at 16 & n.6, these lack of additional acts of political

support would not take away from or change the nature of his acts of support.

21

Therefore, the

plaintiff has not created a jury issue by attempting to subvert his acts of expressive association
into non-association through an examination of his subjective intent or an examination of his
other acts.

22

Concerning the cases that the plaintiff references in support of his arguments that he
engaged in constitutionally protected conduct, the plaintiff has rendered our review of his
arguments somewhat difficult by not separately discussing the second and third elements of the

prima facie

case in his brief.

Nonetheless, two of the cases he appears to cite to buttress his

argument that he did not support O'Brien and Wansacz are easily distinguishable. In the first
case,

Heffernan

v.

City of Paterson,

2 F. Supp. 3d 563 (D.N.J. 2014), the plaintiff references it

for the principle that marginal support of a candidate is actually non-association as a matter of
law.

In

Heffernan,

the mother of the plaintiff, a detective in the City of Paterson's Police

Department, asked him to pick up a lawn sign supporting the candidacy of an individual for
mayor.

2 F. Supp. 3d at 566.

The plaintiff was a close friend of this candidate.

Id at 567.

While off duty, the plaintiff and his son traveled to a location and obtained the sign from a local
councilman who was supporting this individual's campaign.

Id. at 566.

At some point

thereafter, the plaintiff delivered the sign to his mother, but he did not display the sign or post it
on his mother's property. Id. at 567.
At the time the plaintiff obtained the sign, a member of the then-mayor's security detail
observed the plaintiff. Id. at 566-67. The next day, a police lieutenant informed the plaintiff that

21

Interestingly, the plaintiff references "other political events," apparently recognizing that the golf outing and/or

the inauguration party would be considered as political events. Pl.'s Br. at 16 n.6.
22

Despite the plaintiffs testimony regarding his alleged motivation for participating in the golf outing and the

inauguration event, he affirmed that he was there to "support" O'Brien and Wansacz.
17.

23

See Eastman Dep. Tr. at

108-

he was being transferred out of the office and demoted to walking patrol. Id. at 567. Based on
the demotion, the plaintiff brought an action against the city, the mayor, the city's police chief,
and the city's police director because they allegedly retaliated against him for his exercise of his
First Amendment freedoms of speech and association. Id. at 566.
The defendants moved for summary judgment claiming that the plaintiff had not engaged
in any protected speech and he had not properly asserted a freedom of association claim. Id. at
569.

With respect to the freedom of association claim, the district court determined that there

was no genuine issue of material fact as to whether the plaintiff associated himself with the
mayoral campaign because his acts of picking up the sign for his mother or his "passive well­
wishing based on friendship" were not done "with the intent of furthering the goals of the
campaign or promoting a message." Id. at 579. Instead, the plaintiff "merely picked up the sign
as an accommodation to his ailing mother, and he has never claimed otherwise." Id. at 579-80.
Heffernan is distinguishable from the facts in this case because the court there had to

essentially examine whether a public employee's act in picking up yard signs for his mother,
without any other action relating to the mayoral campaign, could constitute a form of association.
Here, we are not dealing with an issue as to whether the plaintiffs conduct in contributing to
O'Brien and Wansacz's campaigns and attending their campaign golf outing, voting for them,
and attending their inauguration party are acts of association. In particular, the attendance at the
golf outing and submitting a campaign contribution through that event, are clearly acts of active
political association with a candidate.

Thus, unlike in this case, Heffernan did not involve any

support of a candidate, much less marginal support.
The second case referenced by the plaintiff and requiring more specific attention 1s
Wuestling

v.

Lackawanna County, No. 3:12-CV-660, 2013 WL 785260 (M.D. Pa. Mar. 1, 2013).

24

In Wuestling, the plaintiff, Kent Wuestling ("Wuestling") worked in Lackawanna County's parks
and recreation department until O'Brien and Wansacz terminated his employment and replaced
him with an individual that contributed money to the defendants' campaigns. 2013 WL 785260
at *1. Wuestling alleged that unlike his replacement, he had only provided de minimis financial
support and political support to the defendants. Id.
The defendants moved to dismiss the complaint arguing that, inter alia, Wuestling did
not include sufficient allegations to establish a prima facie case insofar as he did not engage in
constitutionally protected conduct, i.e. non-association, because he had provided O'Brien and
Wansacz with financial support and had signed O'Brien's nominating position. Id. at *3. Judge
Connor rejected the defendants' arguments because Wuestling had alleged that the defendants
terminated his employment because of a lack of political support as evidenced by being replaced
with a known political supporter. Id. (citing Bennis

v.

Gable, 823 F.2d 723, 731 (3d Cir. 1987)).

Nonetheless, Judge Connor also noted the following:
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
decision.
Id. at *4.
Even if Judge Connor's well-reasoned analysis of the issue was binding on this court,
which it is not, Judge Connor left open the determination as to whether Wuestling's actions
constituted political support under the law. He appears to also have left opened the question as
to whether Wuestling could show that he was not associated with the defendants. Here, we have
a full and complete evidentiary record showing that the plaintiff went beyond what Wuestling

25

did (to the extent such a comparison is appropriate).

At a minimum, the plaintiff attended a

political event and provided a $250 campaign contribution (even if some of it went towards
greens fees or other expenses).

He attended an event with other individuals presumably

supporting the campaigns of O'Brien and Wansacz.

Thus, again, he cannot show non-

association.
The court recognizes that the Third Circuit has concluded that constitutionally protected
conduct in the form of a failure to support a candidate can be demonstrated by a "demotion to
make positions available for political supporters." Bennis

v.

Gable, 823 F.2d 723, 731 (3d Cir.

1987). Contrary to the plaintiffs apparent argument, Bennis does not stand for the proposition
that a plaintiff can avoid showing that he or she exercised a constitutional right if he or she can
show that action was taken (or not taken) to "make room" for a political supporter of a
defendant.

Instead, the Bennis court determined that in certain cases, a defendant's action to

make room for the defendant's political supporters could establish this second element of the

prima facie case because it could implicitly show a failure to support, which is an exercise of
freedom of association. Id.

While the plaintiff alleges that he was terminated to "make room"

for Lenceski, a political supporter of Wansacz, which would seem to fall under Bennis, the facts
here are dissimilar because a reasonable jury could not infer a failure to support when, in fact,
the plaintiff supported O'Brien and Wansacz.

Accordingly, based on the record taken as a

whole, no rationale factfinder could conclude that the plaintiff had engaged in constitutionally
protected conduct in the nature of non-association with O'Brien and Wansacz.
2.

The Defendants' Conduct Was Not a Substantial or Motivating Factor in the
Employment Decision

The defendants also contend that the plaintiff cannot establish the third and final element
of the prima facie case because he cannot demonstrate that his engagement in constitutionally

26

protected conduct was a substantial or motivating factor for
employment decision.

Defs.' Br. at 1 3.

O'Brien's and Wansacz's

With regard to this final element, '"implicit in th[is]

prong is a requirement that the plaintiff produce sufficient evidence to show [that] the defendant
knew of [the] plaintiffs political persuasion,' which requires proof of both knowledge and
causation."

Galli v. New Jersey Meadowlands Comm 'n, 490 F.3d 265, 275 (3d Cir. 2007)

(quoting Goodman v. Pennsylvania Turnpike Comm 'n, 293 F.3d 655, 664 (3d Cir. 2002)).
The defendants argue that the evidence unequivocally shows that O'Brien and Wansacz
had no knowledge that the plaintiff did not support them in their campaigns for county
commissioner.

Defs. ' Br. at 1 3.

In addition, they point out that the plaintiff admitted that he

never informed O'Brien or Wansacz he did not support them or that they would have any reason
to believe that he did not support them. Id. As he did in fact support them, the defendants assert
that the plaintiff has not established this final element. Id.
The plaintiff claims that the defendants arguments "miss[] the point." Pl. 's Br. at 20. He
asserts that
[k ]knowledge of the plaintiffs political affiliation or association is important in
cases in which an employee is terminated for actively supporting the defendant
politician's opponent.

In that type of case, a termination cannot logically be for

association with an opponent if the defendant does not know of that association.
In replacement cases like the present case, in which an employee is
terminated in order to make room for a person who associates with the
decisionmaker defendant (a patronage hire), the defendant would necessarily
know that the person he chooses for the job was a political or personal supporter.

The defendant would know of the absence of such support from the plaintiff,
and the absence of a close relationship.

Sworn testimony as to such knowledge

should therefore be unnecessary.
Id. at 20-21 (emphasis added). Thus, the plaintiffs argument essentially amounts to his assertion
that he satisfies this final element because the evidence shows that Wansacz and/or O'Brien

27

knew that Lenceski supported Wansacz, and they knew that the plaintiff was not close to either
of them. Id. at

21.

While the plaintiff presents a persuasive argument regarding the

importance

of

knowledge of a public employee's political affiliation in a failure to support case, he has cited no
Third Circuit authority to support this assertion. The only case cited by the plaintiff in support of
this proposition,
23
dispositive.

Conjour

v.

Whitehall Township, 850 F. Supp. 309 (E.D. Pa. 1994), is also not

In this regard, although

Conjour may have referenced the defendants' lack of

knowledge as not being dispositive when reviewing the plaintiff's First Amendment political
patronage claim, that lack of knowledge related to the plaintiff not supporting (or failing to
support) the new township executive. Here, there is nothing in the record by which O'Brien or
Wansacz would believe, contrary to the plaintiff's attendance at their political event (and even
his attendance at their inauguration party), that he did not support or that he had failed to support
them politically. Therefore, there is no genuine issue of fact as to whether the plaintiff's political
association with Wansacz and O'Brien could have been a substantial or motivating factor in the
decision to terminate his employment with the county.
III.

CONCLUSION

Presuming that the plaintiff has demonstrated that he was employed in a position as
Lackawanna County director of public works that did not require political affiliation, he still
23

In

Conjour, the plaintiff, the former Whitehall Township chief of police,

claimed that he was replaced as chief of

police by the new township executive because of his political affiliations or his lack of support for the new
executive. 850 F. Supp. at 313, 316-17. The defendants, the township and the new executive, moved for summary
judgment arguing that,

inter alia, the plaintiff could not satisfy the third element of the primafacie case because the

new executive did not know of his political affiliation.

Id. at 317. The court denied the motion after explaining that

"the fact that the plaintiff was not politically active, and that in fact the defendants' may not have known of
plaintiffs affiliation, is not dispositive of plaintiffs First Amendment claim."

Id.

The district court then explained that the plaintiff must still prove that political affiliation was a
"'substantial and motivating factor'" in his termination.

Id. (quoting Bennis, 823 F.2d at 732). In examining this

element, the court reviewed the evidence in the record, which showed that the new executive attempted to replace
the plaintiff as chief of police with one of her friends that had supported her campaign. Id. The court determined
that this record created a disputed issue of material fact that "protected activity was a substantial or motivating factor
in the employment decision."

Id.

28

cannot establish a prima
jury could conclude that

facie case of political patronage discrimination because no reasonable

(1) he engaged in constitutionally protected activity, and (2) his exercise

of constitutionally protected activity in the nature of supporting Wansacz and O'Brien was a
substantial or motivating factor in terminating his employment as the director of public works.
The court's disposition of these claims also moots the plaintiff's claim against the county and his
claim for punitive damages.

See City of Los Angeles

(explaining that a constitutional claim under

v.

Heller, 475 U.S. 796, 799 (1986)

42 U.S.C. § 1983 can generally not lie against a

governmental body unless an individual employee has violated a plaintiff's constitutional rights).
Therefore, the court will grant the defendants' motion for summary judgment.

24

An appropriate order follows.

EDWARD G. SMITH, J.

24 As indicated above, because of the court's analysis of the evidence as relating to the second and third factors of
the primafacie case, the court did not need to address the defendants' compelling argument that the plaintiffs
cabinet-level position as director of public works was a position for which party affiliation was an appropriate
requirement for the effective performance of this position. Through the plaintiffs own deposition testimony, he has
shown that he had meaningful input into decision-making concerning the nature and scope of a major township
program. See Brown v. Trench, 787 F.2d 167, 169 (3d Cir. 1996) (describing key factor in examining whether a
public employee's position falls within exemption from First Amendment protection set forth in Branti v. Finkel,
445 U.S. 507 (1980)). Nonetheless, the court also recognizes that the plaintiff identified testimony from the
county's representative that this position did not require political affiliation.
Additionally, the court's conclusion that there are no genuine issues of fact as to whether the plaintiff has
established a primafacie case of political patronage discrimination, renders moot any discussion as to whether the
defendants could show that they would have still reached the same decision to terminate the plaintiffs employment,
hire Lenceski, and restructure the positions. Furthermore, the court need not address the defendants' claims of
qualified immunity or legislative immunity.

29