APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. D.C. Civil No. 75-240.
Seitz, Chief Judge, Aldisert and Hunter, Circuit Judges. Aldisert, Circuit Judge, dissenting.
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.*fn1 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, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (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, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967); Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547, 44 U.S.L.W. 5091 (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.
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.*fn2
Defendants Rizzo and Carroll never filed an answer; however, in their motion for summary judgment, they did contest Rosenthal's allegation that he did not formulate policy. Evidence as to the nature of Rosenthal'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.*fn3 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:*fn4
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, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962).*fn5 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 para. 56.04, 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;*fn6 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 ...