On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Civil No. 89-1876).
Before: Greenberg and Roth, Circuit Judges, and VanARTSDALEN, District Judge*fn*
GREENBERG, Circuit Judge.
Joseph Liotta appeals from an order entered on June 30, 1992, granting the appellees summary judgment in this action which he brought by reason of his termination as the borough administrator of Springdale Borough. The appellees are the borough itself, as well as Alvin Shoop, Jr., John Molnar, Rudolph Kubecka, and Edward Sosovicka, four members of the seven-person borough council.
The factual background and procedural history of the case are as follows. Liotta was involved in public affairs in Springdale Borough as an elected and appointed official for almost a decade starting in 1981, when he was elected to the borough council as a Democrat. A few years later he was reelected and from 1985 until 1987 he was president of the council. In June 1987 the borough enacted an ordinance creating the position of borough administrator. At that time the council passed a resolution providing that the administrator's term of office was to be four years. Furthermore, the council specified the terms and conditions of the administrator's employment and defined the duties of the position. In general, the administrator is to direct "all aspects of the public works functions of the Borough." When the council appointed Liotta as the first administrator, he resigned both from the council and from his private employment.
On March 15, 1989, Liotta was involved in the incident giving rise to this action. On that day, Liotta reported that he was sick and thus he did not come to work during regular business hours. However, when Shoop came to the borough hall during the early evening he encountered Liotta, who claims he was there to run an emergency generator. But Shoop asserts that the borough safe was open and the lockbox kept in it had been removed. Furthermore, Shoop claims that money was lying on a counter. At about the time of this encounter, the borough secretary, Burnette Coulter, found several cash shortages from the borough's funds totaling approximately $400. In particular, a cash count on March 16, 1989, revealed a shortage.
On March 30, 1989, the borough council held a hearing to determine whether to discipline Liotta. Liotta, Shoop, and Coulter, as well as certain other persons, testified at the hearing. While the record does not clearly so indicate, the appellees assert, and Liotta does not deny, that Liotta was free to call additional witnesses. Following the hearing, the council by a four to three vote dismissed Liotta as administrator.*fn1
Liotta subsequently brought this action under 42 U.S.C. § 1983. He charged that the appellees in terminating his employment denied him due process of law because the "sole ground for the discharge . . . was . . . that [his] political beliefs differed from those of the ruling majority of the Borough Council." He further asserted that the charges leveled against him were simply "a pretext to his firing because of his political beliefs." He claimed that the appellees violated his constitutional rights by meeting "on the status" of his position without notifying him and by discharging him at the March 30, 1989 meeting with the intent to deprive him of equal protection under the law.
The appellees moved for summary judgment. In its memorandum opinion the district court, citing Mt. Healthy City School Dist. Bd. of Educ. v. Boyle, 429 U.S. 274, 283, 97 S. Ct. 568, 574, 50 L. Ed. 2d 471 (1977), indicated that a plaintiff need not establish a property interest to assert a claim under the First Amendment. But it then wrote, again citing Mt. Healthy v. Boyle, that a plaintiff in a case charging that he was dismissed for political reasons, must show that his constitutionally protected political views were a substantial or motivating factor in his dismissal. The district court then indicated that the appellees said they discharged Liotta because they suspected him of being responsible for the missing cash. The court said that while Liotta presented affidavits from three council members claiming that Liotta was terminated for political reasons, these assertions "are nothing more than conclusory statements." The court then found that Liotta failed to raise a genuine issue of material fact to refute the appellees' contention that they terminated Liotta because of the thefts. Finally, the court held that Liotta had not established the predicate for a Fourteenth Amendment equal protection or due process claim because under state law he could be removed from his position at any time, regardless of the four-year term provided in the borough's resolution.
This appeal followed. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343, and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review and thus determine whether there is a dispute as to any material fact and whether the appellees were entitled to judgment on the basis of the undisputed facts as a matter of law. Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).
Some First Amendment discharge cases may be characterized as involving speech as such. See, e.g., Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); Sanguigni v. Pittsburgh Bd. of Public Ed., 968 F.2d 393, 396-400 (3d Cir. 1992). But this is not such a case. Rather, Liotta urges that he was fired for political reasons. Thus, he seeks to bring this case within a First Amendment framework recognized in Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), and applied by this court in Brown v. Trench, 787 F.2d 167 (3d Cir. 1986), both of which he cites. See also Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980); Burns v. County of Cambria, 971 F.2d 1015 (3d Cir. 1992), cert. denied, 61 U.S.L.W. 3420 (Jan. 19, 1993); Zold v. Township of Mantua, 935 F.2d 633 (3d Cir. 1991). An employee's interests protected under Elrod v. Burns are the right to freedom in his political beliefs and associations ...