By Lorene D. Park, J.D. Declining to decide whether there is a "reorganization exception" to procedural due process requirements when a government employee with a protected property interest loses her job in a "reorganization," the Third Circuit found that such an exception would not apply here because the evidence indicated the assistant county solicitor’s termination was based not on identity-neutral, cost-driven reasons, but on the defendants’ knowledge of her and of the people who would occupy the part-time positions created to replace her full-time position. Essentially, the evidence supported the jury’s finding that the reorganization was pretext for unlawful termination. The appeals court affirmed the $94,232 award on the employee’s Section 1983 claim and affirmed the award of $186,018 in attorneys’ fees and costs (Mancini v. Northampton County, September 9, 2016, Restrepo, L.). The employee, a Democrat, began working for the county in 2001 as a part-time assistant district attorney. In 2007, she took a newly-created full-time assistant county solicitor position (previously, all such positions were part-time). A second full-time position was created in 2012. In November 2013, a new Republican county executive was elected and he selected a new county solicitor. Before the two assumed office, they decided they would make changes in staffing. Termination. In December, the employee was told her position would be eliminated. At the county executive’s request, the council eliminated the full-time assistant solicitor positions and created two part-time positions; neither part-time job was offered to the employee, whose last day was January 24. She filed a grievance claiming her termination violated the Northampton Home Rule Charter, Career Service Regulations, and layoff policy. An informal hearing on her grievance was held February 19; she was not permitted to have counsel present. The county denied her grievance and she filed an administrative appeal. After two hearings and months of delay, she was informed the appeals board was "hopelessly deadlocked." Career exempt or career service? In the January 27 termination notice, the county took the position that the employee’s full-time position was "career exempt." However, she believed it was "career service," meaning that under the Charter, she could only be dismissed for "just cause" and had the right to appeal for a pre-termination just cause determination. The resolution that created her position did not state whether it was exempt or career service, but the former solicitor testified that he intended for it to be career service and believed the council approved it as such. Also, an HR rep responsible for hiring testified, and her emails at the time suggested, that the position was designated as career service from the outset and that didn’t change. Lawsuit. The employee filed suit under Section 1983, alleging the county, the county executive, and the county solicitor violated her Fourteenth Amendment right to procedural due process by firing her without a pre-termination hearing or just cause determination. She also claimed they violated the First Amendment by firing her due to her political affiliation. The jury returned a split verdict, finding no First Amendment violation, no due process violation by the individual defendants, and a procedural due process violation by the county (because her position was a "career service" position). She was awarded $94,232 in damages and $186,018 in attorneys’ fees and costs. The county appealed. Evidence sufficient. As an initial matter, the Third Circuit rejected the county’s challenge based on the sufficiency of the evidence. The county did not challenge, and therefore waived, the argument that the employee’s position was not a career service position. Nonetheless, given the significance of that distinction, the appeals court also found that the plain text of the home rule charter, testimony by the former county solicitor and the HR rep who handled the employee’s hiring, and other evidence supported the conclusion that the position was "career service." Further, the evidence showed the county did not provide the employee the meaningful process that she was due. Because she could only be fired for "just cause," she had a protected property interest in her job and was entitled to pre-termination notice and opportunity to be heard in a meaningful manner. At a minimum, she was entitled to notice of the charges against her, an explanation of the evidence, and a chance to present her side of the story before the termination became effective. In the court’s view, the "process she received was deficient on all fronts." Reorganization exception? The appeals court refused the county’s request that its conduct be excused under the "reorganization exception" to the ordinary requirements of procedural due process. The court had not yet considered whether there are "exceptions to the requirement of procedural due process where the government engages in a legitimate person-neutral reorganization." However, it declined to do so here because the jury could have reasonably concluded that the reorganization of the solicitor’s office was pretext for unlawfully firing the employee. Indeed, there was "ample evidence that the Defendants decided to eliminate the two full-time assistant county solicitor positions, and replace them with part-time positions, based not on identity-neutral, cost-driven reasons, but based on their knowledge" of the employee and the people who would come to occupy the part-time positions. Layoff policy not followed. Evidence that the county failed to comply with its layoff policy cast further doubt on its claim that it engaged in a bona fide reorganization plan. Under the policy, career service employees are entitled to retention priority over part-time employees, to notice of existing vacancies, to displace less senior employees, and to be placed on a recall list. Nonetheless, the employee, a full-time career service employee, was laid off and her work distributed to part-time employees of the same title without allowing her to displace a less senior assistant county solicitor or to assume one of the new positions. In light of the foregoing, and stating that it would "not permit the government to target an individual for dismissal and then violate that individual’s procedural due process rights under the guise of a reorganization," the appeals court upheld the jury’s finding of pretext and affirmed the orders of the district court. Attorneys’ fees upheld too. The appeals court also rejected the county’s challenge to the award of $186,018 in attorneys’ fees. Although the county argued the amount was not reasonable because the employee "prevailed only minimally, on a single claim out of 15 available claims, receiving a jury award that was 5% of the damages requested," the appeals court found that the lower court did not abuse its discretion. It was significant that the employee’s claims all involved a "common core of facts" and that she prevailed on her due process claim, including the "central issue" in the case—whether she was a "career service" employee.
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