                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-28-2007

Nychis v. Cranmer
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3324




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Recommended Citation
"Nychis v. Cranmer" (2007). 2007 Decisions. Paper 1424.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1424


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                                                  NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                           No. 04-3324


                  PETER G. NYCHIS;
           ADRIENNE YOUNG; DAVE DONATO;
             DENNIS CMAR; SHEILA TIBBS;
  HARRY SIMERAL; WILLIAM DAVIS; JOHN L. DEFAZIO, JR.;
            NAT MASTRO; DOROTHY SUSKA;
       AUBREY KIRKLAND; DAVID K. MCMULLIN;
               NORAH ANN KRUSHINSKI

                                v.

       BOB CRANMER, individually and as Commissioner of the
     Allegheny County Board of Commissioners; MIKE DAWIDA,
      individually and as a Commissioner of the Allegheny County
Board of Commissioners; COUNTY OF ALLEGHENY; LARRY DUNN,
      individually and as a Commissioner of the Allegheny County
                        Board of Commissioners

                      (D.C. No. 98-cv-01507)


                   NORAH ANN KRUSHINSKI

                                v.

      BOB CRANMER, individually and as Commissioner of the
    Allegheny County Board of Commissioners; MIKE DAWIDA,
     individually and as a Commissioner of the Allegheny County
       Board of Commissioners; COUNTY OF ALLEGHENY

                      (D.C. No. 99-cv-00974)

                 Adrienne Young; Dave Donato; Dennis Cmar;
                 Harry Simeral; William Davis; John L. DeFazio, Jr.;
                 Nat Mastro; Dorothy Suska,
                                                               Appellants


                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                (D.C. Civ. No. 98-01507)
                      Honorable William L. Standish, District Judge


                       Submitted under Third Circuit LAR 34.1(a)
                                   March 16, 2007

          BEFORE: FUENTES, GREENBERG, and LOURIE,* Circuit Judges

                                 (Filed: March 28, 2007)


                               OPINION OF THE COURT


GREENBERG, Circuit Judge.

       This matter comes on before the court on the appeal of Nat Mastro, Dennis Cmar,

John Defazio, Jr., William Davis, David Donato, and Harry Simeral from an order entered

in the district court on November 14, 2003, granting defendants-appellees Bob Cranmer,

Mike Dawida and the County of Allegheny summary judgment on claims that appellants

asserted under 42 U.S.C. § 1983, and on appeal from an order entered in the

district court on July 19, 2004, entering judgment in favor of appellees on state-law



*Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit, sitting by
designation.




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wrongful discharge claims appellants asserted against them. Mastro has filed a counseled

brief and the other appellants have joined in a pro se brief. We note that the pro se brief

has also been filed on behalf of Adrienne Young who originally was an appellant but that

after the brief was filed she was dismissed as a party to the appeal by stipulation. The pro

se brief also was filed on behalf of Norah Kruschinski but inasmuch as she never has been

a party to this appeal the brief is a nullity as to her.

       The district court set forth the background of this matter in its memorandum

opinion of November 14, 2003, its case management order of May 28, 2004, and its

memorandum opinion of July 16, 2004, entered July 19, 2004, and therefore it is

necessary only to summarize what the court held. In its November 14, 2003

memorandum and accompanying order the court granted appellees summary judgment on

appellants’ section 1983 claims but granted appellants partial summary judgment on their

wrongful discharge claims on the ground that the method of their discharge did not

comply with state and local law and procedure. At that time, however, the court did not

determine if appellants were entitled to relief. In its July 19, 2004 memorandum opinion

the court held that even though appellees did not follow proper procedure in discharging

appellants they were at will employees and had no remedy by reason of procedural

mistakes in their discharge. Thus, the court entered judgment for appellees and this

appeal followed.

       On this appeal we have jurisdiction under 28 U.S.C. § 1291 and exercise plenary

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review. See Elliot & Frantz, Inc. v. Ingersoll-Rand Co., 457 F.3d 312, 318 (3d Cir.

2006). We observe that there have been two other cases before us dealing with some of

the same circumstances that have given rise to this litigation. See McMullin v. Cranmer,

159 Fed. Appx. 422 (3d Cir. 2005); Contini v. Cranmer, 117 Fed. Appx. 186 (3d Cir.

2004).

         The basis for appellants’ section 1983 claims is that they were unlawfully

discharged for political reasons. There is no question but that in a case of this kind the

discharged employee bringing a section 1983 action must demonstrate that his political

affiliation was a substantial or motivating factor for the adverse employment decision.

See Goodman v. Pennsylvania Turnpike Comm’n, 293 F.3d 655, 663-64 (3d Cir. 2002);

Laskaris v. Thornburgh, 733 F.2d 260, 265 (3d Cir. 1984). Thus, a public employee is

not insulated from discharge or other adverse employment action merely because he is on

the opposite side of a political fence from his employing authority.

         Here the district court held that the appellants simply did not present evidence

sufficient to survive a summary judgment motion against them to support their claim that

their political affiliation was a substantial or motivating factor in the decisions to

discharge them. The district court set forth the evidence in great detail and we see no

reason to repeat it as we are in full agreement with its conclusions.

         Finally, we reject the unlawful discharge claim. In this regard we are in agreement

with McMullin that there is no private cause of action for the technical violation involved.

While we realize that McMullin was a not precedential opinion and certainly in view of

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Third Circuit IOP 9.1 is not binding on this panel, we adopt its reasoning as our own on a

de novo basis.

       For the foregoing reasons the orders of November 14, 2003, and July 19, 2004,

will be affirmed.




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