Rosenthal v. Rizzo

555 F.2d 390, 23 Fed. R. Serv. 2d 914

Opinions

JAMES HUNTER, III, Circuit Judge:

This appeal presents claims of employee discharge in violation of the First and Fourteenth Amendments. The District Court for the Eastern District of Pennsylvania entered summary judgment against the employee, Harold Rosenthal. We find no error in the disposition of the Fourteenth Amendment claim.¹ We reverse and remand, however, as to the First Amendment claim for the following reasons.

Harold Rosenthal was appointed to a $14,257-a-year position as an Administrative Assistant II in the Commercial and Industrial Relocation Department of the Redevelopment Authority of Philadelphia on October 24, 1972. When Augustine Salvitti took over as the Authority’s Executive Director in January, 1974, he fired Rosenthal without a prior hearing. On January 29, 1975, Rosenthal filed an action in the Eastern District of Pennsylvania against the Authority, Salvitti, Frank Rizzo (the Mayor of Philadelphia), and Phillip Carroll (the Deputy Director of Philadelphia). Rosenthal based his action on 42 U.S.C., .§ 1983 and pendent state claims. His primary allegations were (1) that his discharge without a hearing violated his right to due process under the Fourteenth Amendment, and (2) that he had been discharged because of his political affiliation, in violation of his First Amendment rights of political association. He set forth factual allegations in support of both claims. On April 30, 1976, the district court granted summary judgment against Rosenthal as to all defendants, and he appealed.

Rosenthal’s Fourteenth Amendment claim was that he had an “objective expectancy of continued employment” and could be dismissed only for “cause.” Under Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976), “the sufficiency of the claim of entitlement must be decided by reference to state law.” The court below properly ruled against Rosenthal, because under Pennsylvania law, public employees have no contractual entitlement to dismissals only for cause unless the legislature has expressly provided tenure for a given class of employees. Mahoney v. Philadelphia Housing Authority, 13 Pa.Cmwlth. 243, 320 A.2d 459 (1974), cert, denied, 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 (1975). Since the legislature had not provided for tenure in Rosenthal’s job classification, he had no right to a “cause” hearing before discharge.

Rosenthal’s First Amendment claim, however, was more substantial. In general, a state may not condition hiring or discharge of an employee in a way which infringes his right of political association. E. g., Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Elrod v. Burns, 427 U.S. 347, 6 S.Ct. 2673, 49 L.Ed.2d 547 (1976). An exception to this First Amendment protection exists in the case of (state employees who formulate policy.) This exception is designed to insure “that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.” Elrod, supra, at 367, 96 S.Ct. 2687.

For Rosenthal to obtain relief on his First Amendment claim, then, he had to show that he was a non-policymaking employee. Paragraph 10 of his complaint, Appendix at 6a, alleged that his “was a ‘non-policy-making’ position.” In their answer, Appendix at 13a, defendants Salvitti and the Redevelopment Authority admitted the truth of that allegation.²

Defendants Rizzo and Carroll never filed an answer; however, in their motion for summary judgment, they did contest Rosen-thal’s allegation that he did not formulate policy. Evidence as to the nature of Rosen-thal’s duties, in the form of depositions, was imprecise and cut both ways. On the one hand, there was testimony that Rosenthal was merely a “soldier,” Appendix at 72a; that he merely oversaw bidding practices to uncover corruption and to make sure policies implemented by others were carried out, Appendix at 113a; indeed, defendant Salvitti himself declared that Rosenthal’s primary duty was to act as a spy for the former Director of the Authority, Appendix at 94a; that he had no power to decide which bids for relocation work would be accepted, Appendix at 115a; that he merely worked for the actual policymaker in his department, Appendix at 117a. On the other hand, there was testimony to the effect that he helped rewrite the relocation code, Appendix at 51a; that Rosenthal was a “top line” employee, Appendix at 7a; that he oversaw work and reviewed bids, 99a.

Thus, two of the defendants admitted Rosenthal’s status as a non-policymaker, while as to the other two defendants, Rosenthal’s status represented a genuine issue of material fact. Nevertheless, the district court took it upon itself to weigh the conflicting evidence and resolve the issue against Rosenthal on a motion for summary judgment.³ This was error. Under Fed.R. Civ.P. 56(c), a district court can grant summary judgment only when “there is no genuine issue as to any material fact . . .” Professors Wright and Miller have explained that requirement:⁴

A motion for summary judgment lies only when there is no genuine issue of material fact; summary judgment is not a substitute for the trial of fact issues. Accordingly, the court cannot try issues of fact on a Rule 56 motion but only is empowered to determine whether there are issues to be tried. Given this function, the district court examines the affidavits or other evidence introduced on a Rule 56 motion simply to determine whether a triable issue exists rather than for the purpose of resolving that issue. Similarly, although the summary judgment procedure is well adapted to exposing sham claims and false defenses, it cannot be used to deprive a litigant of a full trial of genuine fact issues.

Accord, Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962).⁵ While the court below might have been inclined, as is the dissent, to resolve the evidentiary conflict in defendants’ favor and conclude that Rosenthal had no duties apart from ones involving policy formulation, “a motion for summary judgment should not be granted on the ground that if a verdict were rendered for the adverse party the court would set it aside as against the weight of the evidence.” 6 J. Moore, Federal Practice ¶ 56.-04[2], at 2067 (2d ed. 1976).

In the case sub judice, Rosenthal was improperly deprived of a full trial on the issue of his status as a policymaker;⁶ consequently, his claim that he was fired because of his political affiliations, in violation of the First Amendment, was not considered. Therefore, the judgment of the district court will be reversed as to all defendants and remanded for proceedings consistent with this opinion.

Footnotes

1

. We express no opinion as to Rosenthal’s pen- . dent state claims, since the district court apparently felt it unnecessary to pass upon them after the grant of summary judgment as to all federal claims.

2

. Rosenthal subsequently amended his complaint with respect to the First Amendment claim, but the amended complaint expressly declared that “Plaintiff realleges and incorporates by reference herein paragraphs 1-27, and 29-36 of plaintiffs original complaint.” Appendix at 136a. Thus, the crucial paragraph 10 was realleged, and defendants made no attempt to withdraw the admission in their answer.

3

. The district court may have believed that Rosenthal’s status as a policymaker vel non was a question of law, for in addressing the First Amendment claim, the court indicated that there were no facts in dispute: “Since there is no substantial dispute as to the facts there remains solely the question of whether plaintiff’s employment was a ‘policy-making’ position.” Appendix at 139a-140a. The court’s approach to the issues, however, belies such an interpretation:

Based upon our review of the affidavits and deposition transcripts we fínd that plaintiff was employed in a policy-making position by the R.D.A. His duties included the investigation and supervision of the bidding procedures for moving contracts and thereby he made, at the minimum, an indirect contribution to the formulation of R.D.A. policy. As a result of this finding, we have concluded that as a matter of law plaintiff cannot successfully challenge the termination of his employment on the basis of infringement of his First Amendment rights.

Appendix at 140a (emphasis added). Thus, the district court apparently was aware that it was making a finding of fact based upon its weighing of the evidence.

4

. 10 C. Wright & A. Miller, Federal Practice & Procedure § 2712, at 378-82 (1973) (footnotes omitted).

5

. Examination of the Elrod plurality’s criteria for determinations of policy-making status reveals how difficult the job of weighing evidence on that issue can be and, consequently, how inappropriate it is on a Rule 56 motion:

No clear line can be drawn between policy-making and nonpolicymaking positions. While nonpolicymaking individuals usually have limited responsibility, that is not to say that one with a number of responsibilities is necessarily in a policymaking position. The nature of the responsibilities is critical. Employee supervisors, for example, may have many responsibilities but those responsibilities may have only limited and well-defined objectives. An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymak-ing position. In determining whether an employee occupies a policymaking position, consideration should also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals. Thus the political loyalty “justification is a matter of proof, or at least argument, directed at particular kinds of jobs.” Illinois State Employees Union v. Lewis, supra, at 574. Since, as we have noted, it is the Government’s burden to demonstrate an overriding interest in order to validate an encroachment on protected interests, the burden of establishing this justification as to any particular respondent will rest on the [state] on remand, cases of doubt being resolved in favor of the particular [employee].

427 U.S. at 367-368, 96 S.Ct. at 2687. Thus, the 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 district court to weigh the evidence and rule against Rosenthal on this issue on a Rule 56 motion.

It is true that Mr. Justice Stewart’s concurrence in Elrod refers to a “nonpolicy making, nonconfidential government employee”. 427 U.S. at 375, 96 S.Ct. at 2690. In our view the additional . adjective — nonconfidential—does not change the basic thrust the plurality opinion, which is directed at policy formulation and representative government. A “confidential government employee” in this sense would not necessarily be one — as Rosenthal may have been — who has covert activities as part of his duties, but instead one who is privy to the discussions and information involved in the policymaking process. Rosenthal held a job with a specific title and certain responsibilities. The fact that he may have engaged in covert activities in addition to discharging other, everyday duties ought not, as the dissent insists, to be dispositive of his claim to retain the basic job.

6

. We need not, and do not, address the district court’s power to permit amendment of the pleadings — i. e., the admission of Rosenthal’s non-policymaking status by Salvitti and the Authority — on remand.