                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-12-1997

Stephens v. Kerrigan
Precedential or Non-Precedential:

Docket 96-1469




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"Stephens v. Kerrigan" (1997). 1997 Decisions. Paper 189.
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iled August 12, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1469

JAMES STEPHENS; ANTHONY LONGO; DAVID MOYER

v.

GLENN S. KERRIGAN; WILLIAM H. HEYDT;
THE CITY OF ALLENTOWN
(D.C. Civil No. 95-cv-00615)

JOSEPH HANNA; MARK VITALOS

v.

GLENN S. KERRIGAN; WILLIAM H. HEYDT;
THE CITY OF ALLENTOWN
(D.C. Civil No. 95-cv-08093)

James Stephens, Anthony Longo, David Moyer,
Joseph Hanna and Mark Vitalos,

Appellants

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 95-cv-00615)

Argued January 16, 1997

Before: SLOVITER, Chief Judge,
SCIRICA and SEITZ, Circuit Judges

(Opinion filed August 12, 1997)
Fredrick E. Charles (Argued)
Allentown, PA 18102

Edward R. Eidelman (Argued)
Allentown, PA 18102

Attorneys for Appellants

David M. Green
Harrisburg, PA 17108

Edward H. Feege (Argued)
Jeffrey M. Zimskind
Lehigh Valley, PA 18002

James L. McAneny (Argued)
Harrisburg, PA 17108

Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Chief Judge.

Appellants, five police officers for the City of Allentown,
filed this action asserting that they were denied promotions
because they openly opposed or failed to support the
candidacy of William Heydt for mayor of Allentown and/or
supported his rival, John Pressman. The officers charged
that the City, Mayor Heydt, and Officer Glenn Kerrigan,
president of the Fraternal Order of Police, who was a Heydt
supporter, deprived them of their First Amendment rights
in violation of 42 U.S.C. § 1983 and 42 U.S.C.§ 1985(3).
They also alleged that Kerrigan individually breached his
duty of fair representation and that Mayor Heydt violated
their First Amendment rights to petition for redress of
grievances by denying them access to the courts.

As in most cases involving a contested employment
action in which the district court granted summary
judgment for the defendants, we must focus on whether the
plaintiffs adduced sufficient evidence to permit the fact

                               2
finder to draw the inference that the employment action
was motivated by an impermissible consideration. If so,
plaintiffs have established the genuine issue of material fact
that precludes summary judgment unless the evidence
shows the challenged action would have been taken in any
event. To make that decision, we must review the facts
adduced in detail.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The candidates for mayor of the City of Allentown in the
1993 election were Democrat John Pressman and
Republican William Heydt. Chief of Police Wayne Stephens
was a Pressman supporter, as were a number of high-
ranking police officials. Glenn Kerrigan, who had been
president of the Fraternal Order of Police (the"FOP") since
1992, was a Heydt supporter, as were a number of other
police officers, including Richard Suppan, Gerald Dieter
and James Bowser who were all union officers or members
of the union negotiating committee. The FOP is the
recognized bargaining agent for the police, albeit not for
certain high ranking officials. There is some evidence that
the relationship between the FOP leadership and the Chief
of Police and his immediate advisors was somewhat
rancorous: the FOP officers believed that Chief Stephens
was antagonistic towards them on account of their union
activities and the police administration did not approve of
the union's attempts to "run" the Department.

FOP Endorsement

The Preamble of the FOP's Constitution and Bylaws
states that the FOP is "strictly non-political." App. at 269.
The parties differ as to whether that precludes the FOP
from endorsing a candidate. Much of the evidence centers
on the endorsement, later rescinded, of candidate Heydt
and the part that issue played in Heydt's decision not to
promote the plaintiffs.

During the primary election, candidate Heydt visited
Chief Stephens in an effort, according to Stephens, to gain

                               3
the Department's endorsement. Stephens declined,
testifying later that he did not believe the Department
should make endorsements. He also testified that he was a
vocal Pressman supporter in the Department and among
neighbors and friends. Subsequently, Heydt criticized the
management of the Police Department on a number of
grounds and his remarks were reported in an Allentown
newspaper. Plaintiffs allege that FOP leaders, including
Kerrigan, were providing Heydt with information concerning
the administration of the Police Department.

On September 7, 1993, candidates Pressman and Heydt
made brief statements at the FOP's regular monthly
meeting. James Bowser moved to endorse Heydt's
candidacy, but the vote resulted in a 16-16 tie. Kerrigan,
who was presiding, declined to cast the tie-breaking vote. A
motion was passed that no endorsements be made until
after the candidates' forum, which could be attended by all
members of the FOP. This forum was held on September
28, 1993. Officer Fulmer, also a Heydt supporter, had
circulated a petition requesting a special meeting of the
FOP to be called the next day, September 29, in order to
endorse a candidate.

The manner in which the September 29 meeting was
called and publicized is another matter of dispute. Kerrigan
contends that he was mandated by the Bylaws to call a
special meeting upon receipt of a request signed by ten
members. Plaintiffs allege that it was unusual for a special
meeting to be called the day after the candidates' forum,
particularly because there was a regular monthly meeting
scheduled for the next week. A number of officers later
complained that the September 29 meeting was not
adequately publicized to the FOP membership.

Candidate Heydt was endorsed by the FOP membership
at the special meeting held on September 29 by a vote of 36
to 2 with 4 abstentions. Most of Officer Fulmer's platoon
attended the meeting; many of the FOP members who had
attended the September 7 meeting did not.

The regularly scheduled FOP meeting on October 5 was
contentious, with some members, including a Heydt friend
and presumably supporter, expressing reservations

                               4
concerning the FOP's endorsement policy. By a vote of 44
to 12, the endorsement of candidate Heydt was rescinded.
What was said and by whom at this meeting is one of the
bases for the plaintiffs' claim that their failure to support
Heydt led to their non-promotion. Heydt was elected Mayor
of Allentown on November 2, 1993, and took office on
January 3, 1994.

Promotion Lists

In 1992, before the events at issue here, when Joseph
Daddona was Mayor of Allentown, the FOP, headed by
Kerrigan, and the Allentown Police Department, with Wayne
Stephens as the Chief of Police, negotiated a new promotion
procedure for the positions of patrol sergeant, investigative
sergeant, patrol lieutenant and investigative lieutenant.
This was codified as General Order 309 of the Allentown
Police Department. This new promotion procedure was
followed in 1993 to produce promotion lists for the above
positions. The agreed-upon procedure does not entail
objective tests but provides that promotion lists are
compiled following an evaluation by a five-person committee
including the Chief of Police, the Assistant Chief of Police,
the Deputy Assistant Chief of Police, one Captain, and the
candidate-officer's primary supervisor. A candidate's
placement on the list is based upon these "oral interview/
evaluation" scores, which account for eighty percent of the
total score, and seniority, which accounts for twenty
percent. Promotions could be made from the top three
names on the list, with the Chief of Police able to pass over
any particular candidate only twice. If three positions
opened, the top three candidates had to be chosen.
However, if only one position was to be filled, the first two
candidates could be skipped twice. After that, any
subsequent open positions would have to be filled by the
skipped candidates.

The lists were officially publicized on November 1, 1993,
just prior to the mayoral elections held that week. The five
plaintiffs ranked highly. James Stephens rankedfirst for
investigative lieutenant and first for patrol lieutenant;
Hanna ranked third for investigative lieutenant and fourth
for patrol lieutenant; Vitalos ranked first for investigative
sergeant and second for patrol sergeant; Longo ranked

                               5
third for patrol sergeant and fourth for investigative
sergeant; Moyer ranked third for investigative sergeant.

In contrast, the policemen who were in the FOP
leadership scored near the bottom of the sergeants lists.
Kerrigan ranked twenty-eighth on both the investigative
and patrol sergeants lists; Suppan ranked thirty-first for
investigative sergeant and thirtieth for patrol sergeant,
Dieter ranked thirty-third on both lists, and Bowser ranked
thirty-fourth on both lists. None were ranked on the
lieutenants lists. We were advised by counsel at argument
that there were sufficient openings so that each of the top
three candidates would have been promoted.

Police Chief Interviews

Immediately following his election, Mayor Heydt met with
Chief Stephens and informed him that he would not rehire
Stephens as Police Chief. According to Stephens, Heydt also
accused him of manipulating the promotion lists to arrange
for Angel Santos, an Hispanic officer, to placefirst on the
patrol sergeants list and second on the investigative
sergeants list in order to accommodate candidate
Pressman's promises to promote more Hispanics within the
Police Department. Stephens also alleges that Heydt
accused him of nepotism in regards to his brother James
Stephens' position on the lists and that Heydt harangued
him on the operation of the department in general,
specifically criticizing a number of the Captains.

In December 1993, Heydt interviewed Assistant Chief
Monahan, Captains Mitchell, Berndt, Manescu and Bennis,
and John Stefanik, a retired former Captain in the
department, for the Chief of Police position. Ultimately,
Heydt selected John Stefanik as the new Chief of Police.
Stefanik had been a Heydt supporter and had worked at a
polling place for Mayor Heydt during the election.

Unfair Labor Practices Challenge

On December 20, 1993, the FOP filed an Unfair Labor
Practice ("ULP") charge with the Pennsylvania Labor
Relations Board (the "PLRB"), claiming that the sergeants
promotion lists were invalid because anti-union animus on
part of the evaluators resulted in artificially depressed

                               6
scores for Kerrigan, Kulp, Suppan, Bowser, and Dieter, five
officers who held union positions or were members of the
union's collective bargaining committee.

Seven officers including Angel Santos and four of the five
plaintiffs here attempted to intervene in the PLRB
complaint on the ground that the action was not supported
by the general membership of the FOP and was detrimental
to them. Their request to intervene was denied.

While the PLRB complaint was pending, no promotions
were made, either from the sergeants lists which were at
issue in the Unfair Labor Practice charge or from the
lieutenants lists even though those lists had not been
challenged. Mayor Heydt stated in his deposition that he
did not want to make sergeant promotions in light of the
PLRB complaint. He also stated that he did not want to
make lieutenant promotions because he thought that
James Stephens' name was at the top of the lists because
of nepotism, and because of an unrelated state court action
brought by captains and lieutenants against the City of
Allentown charging that the City had failed to comply with
Pennsylvania's Wage Payment and Collection Act ("Act 204")
regarding wages for managerial-level police officers. The Act
204 suit was filed in state court in October 1994, and
Mayor Heydt has testified that he did not want to promote
anyone to lieutenant in order to avoid increasing the
number of plaintiffs joining in the suit.

On September 21, 1995, a little less than two years after
the ULP complaint was filed, the PLRB hearing examiner
issued a proposed order invalidating the 1994-95
promotion lists for investigative sergeants and patrol
sergeants, and ordered the City to refrain from making
promotions until a new list was developed. The hearing
examiner found that Chief Stephens and his immediate
deputies gave some scores of lower than 4 in violation of
the applicable procedure. The examiner also found that the
scores given by Chief Stephens and his immediate deputies
to Kerrigan, Dieter and Suppan were tainted by anti-union
animus, though not those of Kulp or Bowser. The PLRB
adopted the hearing examiner's findings and conclusions,
except as to Dieter, and issued a Final Order dated October
8, 1996, directing the City to void the 1994-95 promotion

                               7
lists and to refrain from making promotions to sergeant
until a new list was developed. The City and the FOP cross-
appealed in the Commonwealth Court of Pennsylvania and,
in a memorandum opinion, the court dismissed the appeals
as moot because the promotion lists had expired by
operation of law at the end of 1995. See City of Allentown
v. Pennsylvania Labor Relations Bd., No. 3027 C.D. 1996,
slip op. at 5-6 (Pa. Commw. Ct. May 23, 1997).

Following the invalidation of the sergeants promotion
lists, the City has not promoted to the ranks of either
lieutenant or sergeant as of the time of oral argument
before us.

The Instant Action

The first complaint in this consolidated action was filed
by James Stephens, Anthony Longo and David Moyer in
January 1995. They sued Mayor Heydt, the City of
Allentown, and Glenn Kerrigan, and alleged a conspiracy in
violation of 42 U.S.C. §§ 1983 and 1985(3) to deny them
promotion because of their political affiliation. They also
asserted pendent state law claims against Kerrigan. In
December 1995, Joseph Hanna and Mark Vitalos filed a
complaint raising the same claims, but they added a count
for Mayor Heydt's "illegal attempt to deny access to the
courts to other[s] eligible to be promoted to lieutenant."
App. at 134. They based this claim on Heydt's testimony
that he did not want to promote more officers who could
become plaintiffs in the Act 204 lawsuit against him and
the City. Stephens, Longo and Moyer sought leave to amend
their complaint to add this count.

Following discovery, the district court granted the
defendants' motions for summary judgment on the§§ 1983
and 1985(3) claims in favor of all three defendants,
dismissed plaintiffs' breach of fair representation and state
constitutional claims, and denied the motion of Stephens,
Longo, and Moyer to amend their complaints after
determining that the access to the court's claim failed to
state a cause of action. Plaintiffs do not contest the district
court's dismissal of the breach of fair representation and
state constitutional claims, but argue on appeal that the
district court improperly granted summary judgment to the

                               8
defendants on their §§ 1983 and 1985(3) claims. Hanna
and Vitalos argue that the district court erred in dismissing
their right to access claim, and Stephens, Longo and Moyer
contest the district court's denial of their motion to amend.

II.

DISCUSSION

A.

Applicable Legal Principles

In Elrod v. Burns, 427 U.S. 347, 372-73 (1976), and
again in Branti v. Finkel, 445 U.S. 507, 514-15 (1980), the
Supreme Court held that it is unconstitutional for public
agencies to discharge employees who are neither
policymaking nor advisory based on their political
affiliations, reasoning that an employee's exercise of First
Amendment rights outweighs the government's interest in
maintaining a system of political patronage. The Court
expanded upon Elrod and Branti in Rutan v. Republican
Party of Illinois, 497 U.S. 62, 75 (1990), where it held that
promotions, transfers, recalls, and other hiring decisions
involving public employees may not be based on party
affiliation and support unless the government can show
that party affiliation is an appropriate requirement for the
position involved. Moreover, as Elrod-Branti teaches, "[a]
citizen's right not to support a candidate is every bit as
protected as his right to support one." Bennis v. Gable, 823
F.2d 723, 731 (3d Cir. 1987). Thus, Rutan encompasses
claims of political discrimination when an employer takes
an adverse employment action because s/he does not want
to fill employment positions that would otherwise be
available to his or her supporters. See Rutan , 497 U.S. at
67-68; Bennis, 823 F.2d at 731.

A political discrimination case employs similar, though
not identical, burden-shifting mechanisms as those used in
other employment discrimination contexts, such as Title VII
cases. See Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir.

                               9
1993). To make out a prima facie case, public employees
who claim that they suffered from an adverse employment
action based on their exercise of a constitutional right must
show that they worked for a public agency in a position
that does not require a political affiliation, that they were
engaged in constitutionally protected conduct, and that the
conduct was a substantial or motivating factor in the
government's employment decision. See Robertson v. Fiore,
62 F.3d 596, 599 (3d Cir. 1995); Rode v. Dellarciprete, 845
F.2d 1195, 1200 (3d Cir. 1988); Laskaris v. Thornburgh,
733 F.2d 260, 265 (3d Cir.), cert. denied, 469 U.S. 886
(1984). Once the employee makes this demonstration, the
employer 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. See Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977); Robertson, 62
F.3d at 599.

It is not disputed that the plaintiffs are public employees
and that the positions of sergeant and lieutenant do not
require a political affiliation. This court's review of the
district court's summary judgment rulings is plenary.
Summary judgment will be proper "if the pleadings,
depositions, answers to interrogatories . . . 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."
Fed. R. Civ. P. 56(c). A court must view all facts and
inferences in the light most favorable to the party opposing
the motion.

B.

Knowledge

In granting summary judgment for Heydt and the City,
the district court held that "[t]he plaintiffs in this case have
not produced evidence sufficient to establish that Mayor
Heydt knew their political affiliations" and that "[t]he
plaintiffs have not presented any direct evidence that Mayor
Heydt refused to promote the plaintiffs in order to leave
room for his own political supporters." Dist. Ct. Op. at 5, 8.

                               10
Heydt states in his sworn affidavit and in his deposition
testimony that he did not know the plaintiffs' political
affiliations or whether they opposed or supported his
candidacy for mayor. He notes that only James Stephens
spoke publicly against his endorsement at the October 5
FOP meeting - a meeting that Heydt did not attend- and
that plaintiffs Longo, Moyer, Hanna, and Vitalos never
publicly expressed support for or opposition to either
candidate. Plaintiffs assert that it was well-known among
their co-workers that they supported Pressman and
opposed Heydt's endorsement. They argue that it is
reasonable to infer that Heydt also knew this information
because Heydt's FOP supporters knew the identities of the
officers who opposed Heydt's endorsement and these
supporters had a close political relationship with Heydt and
advised Heydt on personnel matters before and after his
election.

The district court declined to draw any inferences
favorable to the plaintiffs from the record evidence, citing
Geraci v. Moody-Tottrup, Int'l., Inc., 82 F.3d 578 (3d Cir.
1996), for the proposition that "when an employerfiles
declarations that he did not know of an employee's
membership in a protected class, the jury may not infer
such knowledge from the employee's having told other office
workers of her condition." Dist. Ct. Op. at 6.

In Geraci, a Title VII case, this court upheld the district
court's grant of summary judgment to the defendant-
employer, holding that the employee could not prove that
she was fired on account of her pregnancy because she
failed to proffer any evidence that the employer knew that
she was pregnant. See 82 F.3d at 597. Geraci argued that
because she told six of twenty co-workers of her pregnancy,
it became a common topic of discussion in the office and
therefore her managers had to have known of it when they
decided to fire her. In their affidavits, the managers
disclaimed knowledge and Geraci deposed only one co-
worker, who testified that he did not tell management of
Geraci's pregnancy. No other evidence of knowledge was
offered. See id. at 582.

We do not read Geraci as holding that a jury may never
infer knowledge on the part of an employer when the

                               11
employee proffers evidence that the information was
generally known to co-workers. In Geraci, the only evidence
presented was that the six knowledgeable co-workers
complied with Geraci's request not to reveal her pregnancy.
The court also noted that there was undisputed evidence
that management had decided to lay-off Geraci before she
herself knew that she was pregnant. See id. In light of those
facts, we declined to remand the case based on "sheer
speculation that one or more of the people she entrusted
with highly personal information violated her confidence
and that members of . . . management lied about their lack
of knowledge." Id. (emphasis in original); cf. Clark v.
Clabaugh, 20 F.3d 1290, 1299 (3d Cir. 1994) (Seitz, J.,
concurring in part and dissenting in part).

In this case, there is evidence that the political affiliations
of the members of the Police Department constituted more
than workplace rumor; the heated and contentious debate
over the endorsement of Heydt for Mayor drew clear lines
between those who supported Heydt and those who did not.

Joseph Hanna stated in his deposition testimony that
"[t]here developed clearly two factions within the police
department at this point. The Kerrigan, et al. faction, as I
would describe them, were pro William Heydt. The other
faction were pro Jack Pressman." App. at 429-30.

According to Assistant Chief of Police Gerald Monahan,
(who is not a plaintiff) the identities of the members of each
faction were widely known among the employees of the
Police Department. He testified:

A. I think you kind of knew where -- what side of the
fence guys were lining up on in terms of -- I don't
mean to insinuate that everybody on [sic] the
department is political. But at that particular time you
knew which guys were kind of lining up on the
Pressman side of the fence, and it was obvious after
awhile who was lining up on the Heydt side of the
fence.

. . .

Q. And during that political campaign of 1993, were
you also aware of Mr. Kerrigan's political position vis-a-
vis mayoral candidates?

                               12
A. I knew which side of the fence he was on, so to
speak.

Q. And that would have been?

A. He was supporting Mr. Heydt.

Q. Mr. Heydt. I take it then which side of the fence
people were on was no secret?

A. No it was not.

App. at 820-21.

The plaintiffs testified in their respective depositions that
they were vocal in their opposition to Heydt's endorsement
and that this was known throughout the Department.
James Stephens testified that after raising objections to the
September 1993 special meeting called to endorse
candidate Heydt, he was "told to sit down and shut up,
because [he] had a political agenda, by Mr. Suppan, Mr.
Fulmer and Mr. Kerrigan." App. at 780. He further stated
that at the October 5 FOP meeting, he was sitting at a table
with other individuals who opposed Heydt's endorsement,
including Moyer and Longo, and that he was "elected to go
up [to the podium] and give our views on what was going
on." App. at 783. He described the October 5 meeting as
"very volatile," noting that a number of "people [were]
standing up and yelling" including Officers Longo and
Moyer and a "number of people sitting at our table that
were quite upset." App. at 783.

Heydt argues that the mere fact that groups of opposing
political supporters existed within the department does not
support an inference that he personally knew who was in
those particular groups. He cites Laskaris v. Thornburgh,
733 F.2d 260, 265 (3d Cir.), cert. denied, 469 U.S. 886
(1984), a case in which plaintiffs, employees of the
Pennsylvania Department of Transportation, claimed that
they were fired because they were Democrats. The only
evidence offered by the plaintiffs was a letter from a state
representative saying that it was time to "clean-out the
political hacks" at the agency; no evidence was offered to
show that the managers of the department responded to
this letter by firing the plaintiffs or that, of the 15,000
patronage jobs that existed, theirs were specifically

                                13
targeted. See id. at 265-66. Nor were the plaintiffs able to
show that any of the other fifty employees who were fired
were dismissed because of their political affiliations. The
case proceeded to a bench trial and the district court found
that the plaintiffs had not adduced enough evidence to
show that the persons responsible for the plaintiffs' firing
knew that they were Democrats. We upheld the judgment,
stating that although the evidence had the "vague aura of
politically motivated patronage firings . . . it is far too
insubstantial to show that the individual plaintiffs here
were discharged because of their political affiliations." Id. at
266.

In contrast, plaintiffs here have offered circumstantial
evidence showing that there was an information "pipeline"
between Heydt and his FOP supporters. Significantly,
Captain Mitchell, who was a neighbor and personal friend
of Heydt, testified that during his interview with Mayor
Heydt for the Chief of Police position, Heydt asked him why
he spoke out against his endorsement at the October 5 FOP
meeting, though Heydt had not been present at the
meeting. Mayor Heydt also told Captain Mitchell that he
knew that there was going to be litigation concerning the
promotion lists. See app. at 869-70. In his own deposition,
Heydt testified that he knew who his own supporters within
the Department were but denied knowing who his
opponents were, despite admitting that he confronted
Mitchell with the fact of his disloyalty. See app. at 747-48.

There is also evidence that there was continuing contact
between the FOP leadership, including Kerrigan, and Heydt
concerning the management and personnel policies of the
Police Department. While on its face it might seem natural
to have such a relationship, plaintiffs point out that the
usual channel for such communications and advice would
be through the Chief of Police and his deputies, not
through individual union leaders who were low ranking
members of the Police Department. Indeed, there was
testimony in seven depositions that the FOP leadership
prepared and submitted a "master" reorganization plan for
the Police Department to Heydt after his election. See app.
at 448 (deposition of J. Hanna); 804 (deposition of W.
Stephens); 855 (deposition of R. Manescu); 894 (deposition

                               14
of F. Peters); 902 (deposition of W. Berndt); 944 (deposition
of T. Bennis). Heydt, in turn, submitted the plan to Chief
Stefanik. Stefanik confirmed the existence of such a plan,
but claimed that it was not utilized. App. at 963-64.

There is other evidence as well. Captain Berndt, who
characterized the FOP leadership - Kerrigan, Fulmer,
Suppan, Dieter, Smith and Bowser - as the "mayor's boys,"
testified as to the significance of the connection between
the Mayor and the FOP leadership:

Q. In your discussions with Chief Stefanik about the
influences of this group of people that you indicated as
the mayor's boys, Mr. Suppan, Mr. Fulmer, Mr. Smith,
Mr. Dieter, Mr. Kerrigan, and Mr. Bowser, what were
Chief Stefanik's reactions? What did he say about
those influences during your discussions with him?

A. Well, I think he agreed that those specific officers
had an influence on the mayor or had an input to the
mayor or something that caused the mayor to utilize
the information received from those officers in his
running of the city.

Q. Now, as I would understand, in the department the
chain of command would go from any member of the
police department to the chief before it would go to the
mayor. Is that correct?

A. That's correct.

Q. And are you saying that in your conversations with
Chief Stefanik, that there was a diversion of this chain
of command in terms of somebody going to the mayor,
influencing him outside of that chain of command?

A. Absolutely.

. . .

Q. Did Chief Stefanik confirm to you in words or
substance that that's what he was saying, that this
group of people was influencing the mayor outside of
the chain of command, not going through him?

A. Absolutely.

App. at 903-04.

                               15
Captain Bennis and Officer Hanna expressed similar
views regarding the management of the department. Bennis
stated in his deposition that "[s]everal people in the FOP
. . . are directing which way the department goes,"
including "Fulmer, Dieter, Suppan, Kerrigan, maybe
Bowser, maybe Charlie Kulp; I don't know about the last
two." App. at 946. Hanna recounted a conversation he had
with Chief Stefanik,

at which time the chief . . . when he referred -- the
chief would refer to "he" and would point back to city
hall, referring to the mayor. When he referred to"they,"
it was my understanding he was referring to the
mayor's supporters.

 My question to   the chief at that time was: "You mean
to tell me that   there are a handful of patrolmen that
have more clout   with the mayor than you do as chief
of police?" His   answer to that was yes.

App. at 526-27.

Although evidence of a direct link between the Mayor and
the FOP leadership does not necessarily show any
impropriety, in the context of this case a factfinder could
believe it lends credence to the plaintiffs' contention that
although Heydt was not present at the October 5th meeting
he was advised of the position of the participants through
his line of communication with the FOP leaders, who were
present. Heydt was told of Mitchell's sentiment at the
meeting and a plausible inference could be drawn that the
same sources informed him of the names of the other
officers who were outspoken, either in opposing his
candidacy or in opposing any FOP endorsement of a
candidate. James Stephen spoke out and sat at the same
table with some of the other plaintiffs. Of the plaintiffs, only
Joseph Hanna, who was out of town, did not attend.
Nonetheless, if the positions of the members of the force
were as well known as some of the witnesses testified, he
also may have been identified with the others. These are
facts that would have to be proven, but on this record we
cannot sustain the district court's grant of summary
judgment which was based on lack of sufficient evidence of
Heydt's knowledge of plaintiffs' political preferences or non-
support to create a material issue of fact.

                                 16
C.

Causation

Heydt and the City argue that mere presence on the
promotion lists does not guarantee promotion, that the City
is under no obligation to ever make promotions, and that
because no promotions from the lists have yet been made
plaintiffs have failed to plead an element of their prima
facie case. This argument could be viewed analytically as
one challenging the sufficiency of plaintiffs' evidence on
injury, causation, or pretext. We address the preliminary
question of injury first.

We have held that while an employee may have a
legitimate claim of entitlement to his or her place on a
promotion eligibility list that would give rise to a right to
procedural due process, the employee does not have a
"substantive right" in the position itself if the promotion
does not automatically follow from the employee's
placement on the list. Stana v. School Dist. of City of
Pittsburgh, 775 F.2d 122, 125-26, 131 (3d Cir. 1985).
However, plaintiffs in this case have not asserted a
procedural due process claim. In a political discrimination
case under the Elrod-Branti-Rutan trilogy, a plaintiff is not
required to establish a property interest in the denied
position, but instead must show that the employment
decision was based on an impermissible motive. See
Acevedo-Diaz, 1 F.3d at 68 n.5; Santiago-Negron v. Castro-
Davila, 865 F.2d 431, 436 (1st Cir. 1989). Although the
Mayor had no obligation to make any promotions, if the
plaintiffs' political affiliation was a substantial or motivating
factor in his decision not to promote them, they have
established a basis for finding the requisite causation. See
Robertson, 62 F.3d at 599.

Of course, a plaintiff must be able to show some realistic
threshold causal connection between the injury suffered
and the defendant's unlawful conduct. See Doherty v.
Rutgers School of Law-Newark, 651 F.2d 893, 902 (3d Cir.
1981). In Doherty, we considered the issue in terms of the
standing of an applicant to a state university law school to
challenge an alleged discriminatory minority admissions

                               17
program. We held that Doherty did not have standing
because he did not possess the qualifications to have been
admitted to the school even in the absence of the
admissions program he was contesting. After reviewing the
Supreme Court's decision in Regents of University of
California v. Bakke, 438 U.S. 265 (1978), and determining
that Bakke did not "reflect an abandonment of all [the
Court's] analysis of standing developed in other cases,"
Doherty, 651 F.2d at 902, we held that while Doherty had
asserted an injury - loss of a place in the law school - he
could not show that he had been injured as a result of the
law school's minority admissions program, because he had
no realistic chance of admission. Id. at 900-01.

Similarly, in Howard v. New Jersey Dept. of Civil Service,
667 F.2d 1099, 1101 (3d Cir. 1981), we held that plaintiffs
did not have standing to challenge the physical agility test
administered by the Newark Police Department as
discriminatory against women because the plaintiffs had
not passed the initial civil service examination that was a
prerequisite for taking the physical test. Plaintiffs had
suffered a distinct and palpable injury but because they
were refused employment on account of their failing the
written test, the physical agility test could not have caused
their loss of job opportunity; therefore the benefits of the
invalidation of the test could not possibly accrue to them.
Id. at 1101-02.

Because these plaintiffs, unlike Doherty and Howard, are
ranked within the top three places on one or more of the
promotion lists, they would have been among those few
officers to be considered for promotion if promotions were
made. Thus, their claims do not fail for the same reasons
as those that precluded the claims in Doherty and Howard.

Heydt and the City argue that although it was not the
basis for the district court's decision, we may affirm on the
ground that plaintiffs have not produced enough evidence
from which a reasonable jury could find that plaintiffs'
protected activities were a substantial or motivating factor
in not making promotions from the sergeants or lieutenants
lists. See Rich v. United States Lines, Inc., 596 F.2d 541,
551 (3d Cir. 1979) (affirming on ground other than that
relied on by district court since parties had the opportunity

                               18
to present evidence and argue the issue); see also Horsey v.
Mack Trucks, Inc., 882 F.2d 844, 847 n.3 (3d Cir. 1989);
PAAC v. Rizzo, 502 F.2d 306, 308 n.1 (3d Cir. 1974)(citing
Helvering v. Gowran, 302 U.S. 238, 245 (1937)), cert.
denied, 419 U.S. 1108 (1975).

Once Heydt has articulated a nondiscriminatory reason
for the employment action, here the failure to promote,
plaintiffs may prevail by discrediting that proffered reason,
either circumstantially or directly, or by adducing evidence,
whether circumstantial or direct, that discrimination was
more likely than not a motivating or substantial cause of
the adverse action. See, e.g., Fuentes v. Perskie, 32 F.3d
759, 764 (3d Cir. 1994); Torre v. Casio, Inc. , 42 F.3d 825,
830 (3d Cir. 1994).

Plaintiffs vigorously challenge Heydt's proffered reasons
for failing to promote. We consider the sergeants lists and
the lieutenants lists separately, as the justifications offered
are different.

Sergeants Lists

Though Heydt presents a number of reasons for failing to
promote from the sergeants lists, his primary reason is the
fact that the sergeants lists were the subject of an Unfair
Labor Practice complaint before the Pennsylvania Labor
Relations Board. Plaintiffs seek to cast doubt on this reason
by claiming that Heydt was complicitous in the bringing of
the ULP action and that he was a party to its inadequate
defense. The only support for the former claim is Captain
Bennis' testimony that Heydt had indicated to him, in his
interview, that there would be litigation over the lists.
However, Bennis was not sure of the date of his interview
with Heydt and thus cannot be sure if the PLRB charge had
been filed yet or not. See app. at 940-43.

Even if Heydt knew of the filing of the charge, plaintiffs
have not produced evidence to support their contention
that he was complicitous in failing to defend the charge
adequately. Their sole evidence for that fact is the
testimony of two police officers that the Assistant
City Solicitor defending the department, Patricia
Siemiontkowski, was not being aggressive enough at the
hearing and that she failed to give former Chief Stephens

                               19
notice of the hearing so that he could be called to testify.
The plaintiffs have not shown that Mayor Heydt influenced
the City Solicitor's Office to choose Siemiontkowski to
defend the action, nor did they show that her performance
was inadequate. In fact, one of the officers who commented
about Siemiontkowski's lack of expertise testified at
deposition that he was satisfied with her representation of
the City and did not believe the City's defense was a
"sham." App. at 829, 834 (deposition of G. Monahan). More
significantly, there is no evidence that Heydt tried to
influence the proceedings in any way. Although plaintiffs
complain that Siemiontkowski failed to contact Chief
Stephens to testify, she stated that she attempted to
contact Chief Stephens repeatedly but that he was unable
to attend because he had booked clients for his hunting
lodge on the date of the hearing. App. at 1006.

Plaintiffs do provide the testimony of Captain Peters who
was told by Heydt while the City was defending the
sergeants lists that "somebody better do something about
that list because I guarantee you nobody will get promoted
off of it." App. at 895. Plaintiffs would have us read that
statement as indicating an impermissible motive, but it is
equally as consistent with Heydt's claim that he would not
promote from the lists while they were subject to the ULP
complaint.

It is undisputed that the ULP charge was filed before
Heydt actually assumed his position as Mayor and that the
PLRB concluded that the sergeants lists were tainted and
directed the City not to use those lists as the basis of
promotion. The decision of the PLRB thus substantiates
Heydt's reluctance to promote from the sergeants lists.

Plaintiffs Vitalos, Longo, and Moyer were in the top tier of
three on one or both of the sergeants lists. Their claim of a
constitutional violation is limited to the time prior to the
PLRB's decision, when Heydt had the option to promote
them. Even if Heydt's reluctance to promote was colored by
his view that they had been in an opposite political camp
during the election, we believe that a reasonable jury could
not have attributed their lack of promotion to that basis
when the sergeants lists, which had been under attack,

                               20
were thereafter invalidated. Thus summary judgment on
their claims was justified.

Lieutenants Lists

Heydt's failure to promote from the lieutenants lists
stands on a different footing because the lieutenants lists
were not subject to an ultimately successful ULP action
before the PLRB. Heydt has never clarified his reasons for
not making promotions from the lieutenants lists, on which
plaintiffs James Stephens and Joseph Hanna were among
the top three. Plaintiffs have pointed to a number of
inconsistencies in Heydt's statements to show that his
reasons were pretextual and which a trier of fact could
credit in concluding that Heydt was motivated by politically
discriminatory criteria. Plaintiffs need not discredit each
proffered reason individually. If plaintiffs cast substantial
doubt on a fair number of Heydt's reasons, they will survive
summary judgment. See Fuentes, 32 F.3d at 764 n.7. Heydt
first argues that he had campaigned on a platform of
reducing the top brass in the Police Department and
therefore sought to reduce the number of lieutenants.
However, this is belied by the testimony of Chief Stefanik,
who indicated in his deposition that any reduction in
management-level officers would probably come from
attrition and not from limiting promotions. App. at 959. At
best, Stefanik's testimony is ambiguous; it is not clear that
a reduction in top brass was a leading Heydt priority, nor
that such reduction would come from not making
promotions.

Heydt relies more strongly on the claim that he did not
want to add more plaintiffs to the Act 204 wage suit against
him and the City by promoting officers into management
positions. Indeed, this was the basis for the claim of Hanna
and Vitalos alleging that by failing to promote them on this
ground Heydt interfered with their First Amendment right
to petition for redress of grievances. Although we do not
disagree with the district court that this is not the type of
action that gives rise to an action for denial of access to the
courts, a fact finder could reasonably find that this
justification was pretextual.

The Act 204 lawsuit brought by the lieutenants and
captains was not cited in Heydt's affidavit as a reason for

                               21
failing to promote from the lieutenants lists. It only
surfaced when, at his deposition, Heydt mentioned it as an
additional factor in his decision-making. However, plaintiffs
offer evidence that prior to that lawsuit Heydt had already
decided not to promote from the lieutenants lists for the
two years the lists would be operative because James
Stephens, Chief Stephens' brother, was on the top of the
lists. See app. at 942 (deposition of T. Bennis). The
testimony that new promotion lists were being prepared by
the FOP to be submitted in a master plan to the Mayor, see
app. at 855 (deposition of R. Manescu), also could show
that Heydt sought to exclude these plaintiffs.

There is evidence that Heydt's real concern was that
James Stephens was first on the lists; he claimed that the
lists were a product of nepotism. However, Heydt has not
substantiated this charge, and it appears that Heydt made
it inconsistently. In his affidavit, Heydt condemned all the
promotion lists as being based on "nepotism and friendship
with the former Police Chief." App. at 969. But during his
deposition testimony, when questioned concerning his
reasons for failing to promote from the lieutenants lists,
Heydt stated that his only problem with the lists was "that
Jim Stephens was at the top of both lists," and that no
other officers owed their ranking on the lists to favoritism.
App. at 741-42.

Heydt's charge that all the lists were tainted by favoritism
could be viewed as a post-hoc justification to prevent
appointment of Stephens, who was the most vocal
opponent of Heydt's endorsement and whose familial
relationship to the Chief of Police was well known.
Significantly, Heydt's disinclination to promote Stephens
may have adversely affected Hanna, the only other plaintiff
high enough on the lieutenants list to have a realistic
possibility for promotion. Captain Monahan testified that
Hanna's name came up in discussions with Heydt, and that
Monahan tried to convey to the Mayor that "he really needs
to look at [Hanna] on his own and formulate his own
opinion." App. at 826. Monahan stated that he was
concerned that certain officers were "getting painted with
the [Chief] Wayne Stephens' brush." App. at 827. At oral
argument, we were advised that Hanna is currently serving

                               22
as an acting lieutenant, a fact that also seems to cut
against Heydt's justification based on favoritism.

Heydt has never claimed that the individuals at the top
of any of the lists are unqualified for the positions, nor is
there any evidence in the record that would indicate that
the officers who were top ranked on the lists were
undeserving. In fact, Captain Manescu testified that he told
Heydt that he did not have a problem with any of the
officers to be promoted from the lists. App. at 846. This was
echoed by other Captains interviewed for the Chief of Police
position. See app. at 826-27 (deposition of G. Monahan);
app. at 942 (deposition of T. Bennis). Significantly, Chief
Stefanik acknowledged that he "probably would" promote
from both lists if it were not for the PLRB decision
invalidating the sergeants lists. App. at 962. In light of the
totality of this evidence, a fact finder might give little
credence to the charge of nepotism or favoritism concerning
the lieutenants lists. Considering the history of animosity
between Chief Wayne Stephens and Mayor Heydt, and the
fact that James Stephens was the most outspoken
opponent of Heydt's endorsement, a jury could reasonably
find that Heydt's reasons for not promoting from the
lieutenants lists are pretextual. We conclude that Stephens
and Hanna have made a sufficient showing to discredit
Heydt's proffered reasons for not promoting from the
lieutenants lists and thus are entitled to have a fact finder
determine whether their political affiliation or non-support
was a substantial or motivating cause of the failure to
promote.

D.

Claims Against Kerrigan

Plaintiffs' complaint asserts the same claim under§ 1983
as to Kerrigan as it does against Heydt and the City.
However, Kerrigan is a private actor who does not ordinarily
act "under color of state law." To succeed against a private
defendant in a § 1983 suit, a plaintiff must show that
"there is a sufficiently close nexus between the State and
the challenged action so that the latter may be fairly treated

                               23
as that of the State itself." Blum v. Yaretsky, 457 U.S. 991,
1004 (1982) (internal citation omitted); see Burton v.
Wilmington Parking Auth., 365 U.S. 715, 725 (1961); Melo v.
Hafer, 912 F.2d 628, 638 (3d Cir. 1990), aff 'd, 502 U.S. 21
(1991).

Only if Kerrigan acted "with the help of or in concert with
state officials" to deprive plaintiffs of their constitutional
rights will plaintiffs have demonstrated the state action
requirement under the Fourteenth Amendment that
underlies a § 1983 claim. McKeesport Hosp. v. Accreditation
Council for Graduate Med. Ed., 24 F.3d 519, 524 (3d Cir.
1994); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 152
(1970); Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d
Cir.), cert. denied, 116 S.Ct. 165 (1995).

The crux of plaintiffs' conspiracy theory is that"Kerrigan
and Heydt . . . agreed that, if elected, Defendant Heydt
would fire then Chief of Police, Wayne Stephens and help
advance Kerrigan's career by subverting the . . . promotion
list procedures. In exchange . . . Kerrigan agreed to arrange
for [the FOP] to publicly endorse Heydt." Complaint, app. at
18. As noted earlier, plaintiffs have adduced circumstantial
evidence indicating that Heydt was receiving information
concerning the management of the Police Department that
may be inferred to have come from members of the FOP
leadership. However, there is little, if any, evidence that
Kerrigan conspired with Heydt specifically with regard to
plaintiffs' promotions.

The FOP endorsement preceded the publicizing of the
promotion lists. By the time the promotion lists came out,
which was the week before the mayoral election, the FOP
endorsement had already been rescinded. At the time
Kerrigan and the FOP leadership campaigned for Heydt's
endorsement, they could not have known that they had
placed low on the lists and that plaintiffs had placed high.

Plaintiffs contend that an inference can be drawn that
Kerrigan, as president of the FOP, sought to influence
Mayor Heydt's staffing decisions regarding police personnel
in a significant way, and that Heydt may have acted on
these recommendations. They offer no evidence that
Kerrigan's alleged advice, even if politically motivated, rose

                               24
to the level of a conspiracy between Kerrigan and Heydt, so
much so that it can be said that a "working relationship"
existed by which Kerrigan was "drap[ed] . .. with the power
of the state." Cruz v. Donnelly, 727 F.2d 79, 82 (3d Cir.
1984).

Here, like in Cruz, there is no basis tofind that the
decisionmaker relinquished his power to make promotions.
See id. at 81. The choice to make staffing decisions
remained that of the Mayor. At most, Kerrigan's advice - if
indeed he gave any - was favorable to the FOP leadership.
In the absence of any evidence from which a reasonable
fact finder could determine otherwise, we cannotfind that
Heydt "clothe[d] [Kerrigan] with the under color of state law'
vestment." Melo, 912 F.2d at 639.

Plaintiffs have also sought to assert a claim against
Kerrigan under 42 U.S.C. § 1985(3). Section 1985(3)
provides for recovery of damages against "two or more
persons in any State [who] conspire . . . for the purpose of
depriving . . . any person . . . of having and exercising any
right or privilege of a citizen of the United States." The
district court dismissed the § 1985(3) claims on the ground
that that section does not authorize relief for discrimination
based on political association.

This court has "reserved comment on whether `1985(3)
embraces private conspiracies to discriminate on the basis
of other factors other than race,' " Robison v. Canterbury
Village, Inc., 848 F.2d 424, 430 n.7 (3d Cir. 1988) (quoting
Rogin v. Bensalem Township, 616 F.2d 680, 697 (3d Cir.
1980)); see also C&K Coal Co. v. United Mine Workers, 704
F.2d 690, 700 (3d Cir. 1983), although we note that other
circuits have held that it does, see, e.g, Hobson v. Wilson,
737 F.2d 1, 21 (D.C. Cir. 1984), cert. denied , Brennan v.
Hobson, 470 U.S. 1084 (1985); Keating v. Carey, 706 F.2d
377, 379 (2d Cir. 1983); Glasson v. City of Louisville, 518
F.2d 899, 912 (6th Cir.), cert. denied, 423 U.S. 930 (1975),
and some district courts in this circuit have agreed, see
Perez v. Cucci, 725 F.Supp. 209, 249-51 (D.N.J. 1989),
aff 'd, 898 F.2d 139 (1990).

Once again we do not have to resolve that question,
because the predicate of § 1985(3) liability is a "conspiracy,"

                               25
and, as discussed above, plaintiffs have not provided
sufficient proof of a conspiracy between Heydt and Kerrigan
to survive summary judgment. We will accordingly affirm
the district court's entry of judgment in Kerrigan's favor
without adopting its limitation on the reach of§ 1985(3).

III.

CONCLUSION

For the foregoing reasons we will reverse in part and
affirm in part and remand to the district court for further
proceedings consistent with this opinion.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

                               26
