The defense of municipalities in employment discrimination cases presents issues common with the defense of private employers, such as burden of proof, motivation, pretext, credibility and mitigation. However, the defense of a municipality also involves other considerations.

Politics

One of the first concerns in defending a municipality is whether the municipal representatives are all on your side. In general, when defending the employment decision in the private sector, the employer’s decision-makers are all supportive of the decision, or, if they are not, they will at least not try to undermine the defense. In defending municipalities, however, it is not uncommon to find representatives who were opposed to the decision and who have already made public statements opposed to the decision.

Therefore, in defending the municipality, one of the first tasks is to assess the political landscape. If it was the governing body that made the decision, such as a termination of employment, was it a unanimous decision of the council or board or was there opposition? It is not unusual for there to be a split based upon party affiliation or other political considerations. In such cases, the minority members could be hostile to the defense. Their past or future public statements and communications to the plaintiff or his or her attorney could present serious issues as to admissions, declarations against interest, credibility and attorney-client privilege.

If it was a municipal supervisor, such as a police chief or manager, who made the decision or who effectively recommended the decision to the governing body, then questions include whether there are members of the governing body who are hostile toward the police chief or manager. Such members, who may have actively been looking for a reason to terminate the municipal supervisor, may for political, personal or other reasons side with the plaintiff and make public statements adverse to the defense.

If the survey of the political landscape shows any of these potential risks, the next step is to neutralize them. One can first try to appeal to reason and the representatives’ duty to the municipality. A warning as to the potentially large damages that could be awarded to the plaintiff and the potential for harm to the municipality is a good start. A warning about the potential effect of public statements and the need to maintain confidentiality of any communications with counsel should also be made at the outset of all cases.

However, not all players in all cases are going to abide by the game plan. Take, for example, the case of a municipal manager who alleged she was terminated because of gender. Three members of council decided to terminate her for incompetence, while two members opposed the termination. The issue has become a political football with both sides attacking the other. In such a case, one of the best ways to neutralize the risks is to take an affidavit of each council member.

Affidavits from the majority members provide evidence in favor of the defense to the Equal Employment Opportunity Commission/Pennsylvania Human Resourcse Commission and/or the court. In addition, the political makeup of council can change during the course of the litigation and former allies may not be as cooperative if they are out of office. Taking affidavits from each of the majority council members makes it more difficult for them to recant or forget their stories.

Taking affidavits from the majority members also makes it easier to obtain affidavits from the minority members, as it shows you are not singling them out. This is something that is being asked of each council member. Because the minority members were opposed to the decision, it is unlikely that an affidavit in support of the decision can be obtained. However, it is often possible to get the minority members to agree to sign an affidavit in which they aver, for instance, that although they voted against termination, the employee’s gender had no bearing on the decision.

Depending on the situation, it might also be possible to obtain a statement that although they disagreed with the majority, the reason that the majority fired her was because they believed she was incompetent. Having sworn to such statements, it would be difficult for them to testify differently in a deposition or at trial.

Counsel must be aware of and address these types of potential political issues in the defense of a municipality in employment discrimination cases.

Constitutional Issues

Employment decisions by a municipality will often raise constitutional issues that would not arise in the private sector. For instance, the employee may claim that his or her due process rights were violated. Although substantive due process rights are normally not implicated, the employee could have property rights in employment entitling the employee, for instance, to a pre-termination hearing, as the court held in Cleveland Board of Education v. Loudermill, 470 U.S. 522 (1985).

State law determines whether a property interest exists for procedural due process rights. To have a property interest in a job, an employee must have a legitimate expectation in continued employment, as in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). In Pennsylvania, employment with a municipality is at-will unless the General Assembly has enacted legislation allowing it to be altered or unless a contract provides the employee with such rights as tenure or the right to be terminated only for cause, as the court held in Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir.2005).

Therefore, where a plaintiff claims, for example, that his or her procedural rights have been violated by not having been afforded a Loudermill hearing, one must look at whether there is any statute or contract that provides an expectation of continued employment. If not, the employee does not have a due process right to a Loudermill hearing.

Another such issue is a claim that the employment decision violated the employee’s equal protection rights. For instance, in the case of Ricci v. DeStefano, 557 U.S. 557 (2009), the plaintiff alleged race-based discrimination under both Title VII and the equal protection clause. In such cases, the Section 1983 two-year statute of limitations would be applicable instead of the 300-day administrative filing requirement under Title VII. Also, Section 1983 cases, unlike Title VII cases, do not require the exhaustion of administrative remedies. Further, whereas Title VII has a cap on compensatory damages, Section 1983 does not have a cap. On the other hand, whereas punitive damages are available under Title VII against private employers, they are not available against municipal employers under either Title VII or Section 1983.

Another claim available against a municipal employer that would not be available against a private employer is a Section 1983 suit alleging First Amendment retaliation. The public employee must show that the speech was protected under the First Amendment and that this protected activity was a substantial factor in the alleged retaliatory action. The First Amendment protects a public employee when the employee "spoke as a citizen, the statement involved a matter of public concern and the government employer did not have ‘an adequate justification for treating the employee differently than any other member of the general public’ as a result of the statement he made," the court held in Hill v. Borough of Kutztown, 455 F. 3d 225, 241-42 (3d Cir. 2006).

Other Differences

In settlement agreements, the municipality cannot agree to the normal confidentiality provision, as under the Right to Know Act the municipality is required to disclose the terms of the settlement agreement if asked by a member of the public.

Qualified immunity may be a defense to individually named defendants who are municipal employees. Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. (See Pearson v. Callahan, 555 U.S. 223, 236 (2009).)

The municipality and its employees may also have immunity from pendent state tort claims pursuant to the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S.A. 8541.

In certain cases the municipality may have a Monell defense, which provides that a municipality cannot be liable for acts of its employees absent the showing of a custom or practice that caused the deprivation of a constitutional right, as in Monell v. Department of Social Services and the City of New York, 436 U.S. 658, 694 (1978).

Further, the municipal employee may have civil service rights pursuant to state law. Thus, the employee may have the right to a hearing before a civil service commission with appeal rights to the court of common pleas. In such cases, the employee may have procedural due process rights to adequate notice of the meeting and an opportunity to be heard, as in Bornstein v. City of Connellsville, 39 A.3d 513 (Pa.Cmwlth. 2012).

These are only a few of the different considerations that arise in employment discrimination cases involving a municipality, as opposed to a private employer. It is critical to recognize both the similarities and differences in representing private and public employers •

Charles H. Saul is a partner in the Pittsburgh offi ce of Margolis Edelstein. He represents private employers in all aspects of labor relations/employment law and municipalities in the defense of employment discrimination and Section 1983 civil rights cases.