                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-14-2004

Sullivan v. Allegheny
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4805




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"Sullivan v. Allegheny" (2004). 2004 Decisions. Paper 229.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/229


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEAL
                          FOR THE THIRD CIRCUIT


                                     No. 03-4805


                        MARY C. SULLIVAN, an individual;
                             RONALD M . PAGE,

                                               Appellants

                                          v.

                 COUNTY OF ALLEGHENY, PENNSYLVANIA;
               JAM ES RODDEY, as County Executive and Individually


                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                            (D.C. Civil No. 01-cv-00011)
                      District Judge: Hon. William L. Standish


                     Submitted Under Third Circuit LAR 34.1(a)
                                 October 8, 2004

       BEFORE: SLOVITER, VAN ANTWERPEN and COW EN, Circuit Judges

                              (Filed October 14, 2004 )


                                      OPINION


COWEN, Circuit Judge.

      On January 3, 2000, a charter adopted by the voters of Allegheny County,

Pennsylvania changed that county’s form of government from a three-commissioner
system to one comprised of a chief executive and council. As a result of this change, all

staff positions in the three elected county commissioners’ offices were eliminated. The

action before us involves allegations that appellants Mary Kay Sullivan and Ronald M.

Page, who occupied two non-political staff positions in outgoing commissioner Larry

Dunn’s office, were retaliated against for Dunn’s failure to support incoming chief

executive Jim Roddey in the previous general election, in violation of their First

Amendment right to political association. Specifically, Sullivan and Page alleged that

appellees Allegheny County and Jim Roddey, both in his individual capacity and in his

official capacity as chief executive, prevented Sullivan and Page from securing

employment in the Allegheny County clerk of courts’ office because the two were or had

been employees of Dunn. A jury trial was held on the matter, and, after the close of

evidence, the District Court granted the defendants’ motion for judgment as a matter of

law pursuant to Fed. R. Civ. P. 50(a). We have jurisdiction under 28 U.S.C. § 1291.

Because we agree with the District Court that no evidence was presented that would

permit a reasonable jury to find in favor of the plaintiffs, we will affirm.

       We review de novo a district court’s decision to grant a motion for judgment as a

matter of law. See Foster v. National Fuel Gas Co., 316 F.3d 424, 428 (3d Cir. 2003).

Granting such a motion is proper only if “there is no legally sufficient basis for a

reasonable jury” to find in favor of the non-moving party. In making this determination,

the District Court “must draw all reasonable inferences in favor of the non-moving party,



                                              2
and it may not make credibility determinations or waive evidence.” Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 149 (2000). Fed. R. Civ. P. 50(a)(1). “Federal

courts do not follow the rule that a scintilla of evidence is enough. The question is not

whether there is literally no evidence supporting the party against whom the motion is

directed but whether there is evidence upon which the jury could properly find a verdict

for that party.” Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1998) (internal

quotations omitted). To make out a prima facie case of adverse employment action due to

constitutionally-protected political association, plaintiffs must show that they held or were

seeking positions with a public agency that do not require political affiliation, that they

were engaged in constitutionally protected conduct, and their conduct was a substantial

motivating factor in the employer’s decision. Stephens v. Kerrigan, 122 F.3d 171, 176

(3d Cir. 1997).

       Sullivan and Page advanced what appear to be two distinct theories of their case at

trial. Their first theory rested on the failure of the Allegheny County salary board under

the old system of government to create positions for them in the clerk of court’s office.

Their second theory implicates George Matta, the incoming clerk of court, with failing to

hire them for open staff positions within his office. Both theories were built around

statements made by Roddey’s campaign manager, Kent Gates. Sullivan and Page

presented evidence of conversations in which Gates told Dunn’s chief-of-staff that no

positions would be available for former Dunn employees in the new administration, and



                                              3
told Matta’s chief-of-staff that Matta should “give up” on his plans to employ Sullivan

and Page because former Dunn employees were not going to be “taken care of.” We find

that Sullivan and Page’s first theory fails because they presented no evidence that the

salary board based its action on their constitutionally-protected conduct, and that their

second theory fails because they have not established either that positions for which they

were qualified existed in the clerk of court’s office or that Matta based any adverse hiring

decision on constitutionally-protected conduct.

       This Court recognizes that viable claims asserting political retaliation can be

maintained even if the employee and employer are affiliated with the same political party.

See Robertson v. Fiore, 62 F.3d 596, 600 (3d Cir. 1995). However, we do not find a

meritorious cause of action under the facts of this case.

       The uncontroverted evidence at trial established that, under the old system of

government in Allegheny County, the clerk of courts could not independently create new

positions in his office. The creation of new positions was the responsibility of the salary

board, which was comprised of the three commissioners, the county controller, and, for

situations involving the creation of positions within the clerk of courts’ office, the clerk

of courts. At the final meeting of the salary board in December 1999, Dunn made a

motion to create a secretary position and a constable coordinator position in the clerk of

court’s office. The motion was not seconded, and so the positions were not created.

Neither Roddey nor Matta occupied positions in the Allegheny County government at that



                                              4
time; in fact, the outgoing clerk of courts failed even to show up at the salary board

meeting. None of the evidence at trial showed that any of the voting members of the

salary board failed to second Dunn’s motion because he did not support Roddey for chief

executive in the general election. In fact, there was no evidence whatsoever that either

Roddey or Gates had lobbied members of the salary board with regard to the vote, other

than Gates’ vague assertion that the “only two people that make decisions about who

stays and who goes are Jim Roddey and me.” This bare statement is insufficient as a

matter of law to impute impermissible motive to any member of the salary board with

respect to the decision not to create the positions in question.

       The absence of evidence that secretary and constable coordinator positions were

available in Matta’s office belies Sullivan and Page’s argument that they have satisfied

the first element of their prima facie case. The only evidence introduced at trial as to

open positions in the clerk of court’s office after the government transition was through

Carmen Torockio, the county’s budget director, who testified that four managerial

positions remained open during the first two weeks of Matta’s tenure. No evidence was

adduced, however, that would show that either plaintiff was qualified for one of the open

positions. As to Sullivan, the sole piece of evidence that a secretarial position did become

available at some point is Sullivan’s unsupported testimony that Dunn told her at the end

of January 2000 that he had called Matta’s office and learned that Matta had already hired

a secretary. Although the defendants did not object to the introduction of this obvious



                                              5
double hearsay evidence, we find that Sullivan’s statement constitutes too slender a reed

upon which a jury might reasonably infer that a secretarial position was open sometime in

January. Plaintiffs’ counsel never called M atta as a witness, never questioned Matta’s

chief-of-staff about a secretarial position having been filled in January, and never

introduced any documentary evidence to that effect. Without such a proffer of at least

reasonably reliable evidence that positions existed for which Sullivan and Page were

qualified, we find that no reasonable jury could have ruled in their favor.

       Furthermore, even if Sullivan and Page had shown that such positions existed,

there is simply no evidence of impermissible motive on Matta’s part. Matta was

constrained in his ability to hire either Sullivan or Page if appropriate positions were not

created in his office, and the salary board did not create secretary and constable

coordinator positions in December 1999. Although Sullivan and Page presented evidence

with regard to the funding of existing positions after the change in government, they

presented no evidence as to how new positions were created after the transition or how

existing positions might be converted to new ones. Therefore, there is no basis for their

assertion that Roddey exercised any influence whatsoever on Matta’s hiring decisions.

The contention that Roddey used his ability to affect the county budget (including the

budget for the clerk of court’s office) as leverage to intimidate Matta into not hiring

former Dunn employees is mere speculation. Roddey had no authority over M atta with

regard to the latter’s staff, and a jury could not reasonably impute impermissible motive



                                              6
to Matta based upon the statements made by Kent Gates.

       Because Sullivan and Page failed to introduce evidence sufficient to satisfy the

requirements of a prima facie case of employment discrimination based on

constitutionally-protected political association, we find that the District Court did not err

in granting the defendants’ Rule 50 motion for judgment as a matter of law.

       For the foregoing reasons, the judgment of the District Court entered on November

19, 2003, will be affirmed.




                                              7
