Jill Mancini v. Northampton County

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-2790

No. 15-2873

No. 15-3012

___________

JILL E. MANCINI,

Appellant in No. 15-2873

v.

NORTHAMPTON COUNTY; JOHN BROWN, IN HIS

INDIVIDUAL AND OFFICIAL CAPACITY;

VICTOR E. SCOMILLIO, IN HIS INDIVIDUAL AND

OFFICAL CAPACITY

Northampton County,

Appellant in Nos. 15-2790 and 15-3012

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 5-14-cv-00963)

District Judge: Honorable Juan R. Sánchez

____________________________________

Argued: March 14, 2016

Before: FUENTES, CHAGARES, and RESTREPO,

Circuit Judges

(Filed: September 9, 2016)

_____________

Samuel E. Cohen, Esq.

Patrick J. Reilly, Esq. [ARGUED]

Gross McGinley

33 South 7th Street

P.O. Box 4060

Allentown, PA 18105

Counsel for Appellee/Cross-Appellant

David L. Schwalm, Esq. [ARGUED]

Jill L. Walsh, Esq.

Thomas Thomas & Hafer

305 N. Front Street

P.O. Box 999

Harrisburg, PA 17108

Jill L. Walsh, Esq.

Thomas, Thomas & Hafer

1550 Pond Road

Suite 210

Allentown, PA 18104

Counsel for Appellant/Cross-Appellee

___________

OPINION OF THE COURT

2

RESTREPO, Circuit Judge.

Jill Mancini, a former assistant county solicitor in

Northampton County, Pennsylvania, brought this 42 U.S.C. §

1983 action against Northampton County, County Executive

John Brown, and County Solicitor Victor Scomillio, in

connection with their termination of her employment.

Mancini, a Democrat, alleged that she was a protected career

service employee and that the newly elected Republican

administration wrongfully dismissed her in violation of the

Fourteenth Amendment Due Process Clause and the First

Amendment. A jury found that Northampton County, but not

Brown or Scomillio, violated Mancini’s procedural due

process rights and awarded her $94,232 in damages. The jury

found in favor of all Defendants on Mancini’s First

Amendment claims. We conclude that the able trial judge

appropriately handled the numerous issues raised by the

parties, and we will affirm.

This case requires us to consider whether there is an

exception to the ordinary requirements of procedural due

process when a government employee with a protected

property interest in her job is dismissed as part of a

departmental reorganization that results in the elimination of

her position. We have not previously considered this so-

called “reorganization exception.” We hold that a

reorganization exception to constitutional procedural due

process cannot apply as a matter of law where, as here, there

is a genuine factual dispute about whether the reorganization

was pretext for an unlawful termination.

I.

3

A. Factual Background

1. Mancini’s Employment in Northampton

County

Mancini began her employment with Northampton

County in 2001 as a part-time assistant district attorney. In

December 2006, the Northampton County Council approved

a request from Karl Longenbach, then County Solicitor, to

create one full-time assistant county solicitor position. Prior

to that time, the Northampton County assistant solicitors were

all part-time employees. The County Council eliminated a

vacant part-time assistant county solicitor position when it

created the full-time position. In February 2007, Mancini was

hired into the newly created full-time position, which she

believed was part of the Northampton career service. In

2012, the Northampton County Council created a second full-

time assistant county solicitor position, which was filled in

early 2013.

In November 2013, Defendant John Brown was

elected County Executive of Northampton County. He

tapped Defendant Victor Scomillio to serve under him as

County Solicitor. Before taking office, Brown and Scomillio

decided that they would make changes to the staffing of the

Solicitor’s Office. According to Mancini, Scomillio told her

on December 23, 2013, that her position would be eliminated

on January 7, 2014.

On January 7, 2014, Brown formally requested that the

County Council eliminate the two full-time assistant county

solicitor positions and replace them with two additional part-

time positions. Mancini filed a grievance that same day

4

challenging her forthcoming dismissal on numerous grounds,

including that her discharge violated Northampton’s Home

Rule Charter, its Career Service Regulations, and

Northampton County Employee Policy No. 3.525, “Reduction

in Force and Recall” (the “Layoff Policy”).

The County Council acted on Brown’s request on

January 23, 2014, eliminating the two full-time positions and

creating the requested part-time positions. Mancini’s last day

of work was Friday, January 24, 2014, the last business day

before the reorganization took effect. She was suspended

with pay until her February 17, 2014 termination. Mancini

was not offered either of the newly created assistant county

solicitor jobs, and she was not permitted to displace an

existing part-time assistant county solicitor.

Mancini did not receive formal written notice of her

termination until a letter dated January 27, 2014, advised her

that on January 23 her position had been eliminated. The

elimination of her position was the only ground Northampton

provided for Mancini’s dismissal. In the notice, the County

took the position that the “full time assistant county solicitor

positions were career exempt positions.” J.A. 3416.

Northampton County held an informal hearing on

Mancini’s grievance on February 19, 2014, two days after it

stopped paying her, and nearly a month after she was relieved

of her duties. She was not permitted to have counsel present

at the hearing. The County denied Mancini’s grievance.

Mancini appealed to the Northampton Personnel Appeals

Board (the “Board”), which held two hearings on her

grievance—one in May 2014 and one in June 2014. Months

passed with no decision. Finally, in response to an inquiry

5

from her lawyer, the Board informed Mancini by letter dated

November 19, 2014, that the Board was “hopelessly

deadlocked.” J.A. 3425. No further action was taken on

Mancini’s appeal, and the Board never reached or

communicated a final decision to Mancini.

2. The Northampton County Career Service

Under the Northampton Home Rule Charter, members

of the career service can only be dismissed for “just cause”

and they have the right to appeal to the Northampton

Personnel Appeals Board for a pretermination just cause

determination. See id. at 3326, 2688. The distinction

between career service and exempt service has important

consequences for Northampton employees, and for our

analysis of Mancini’s due process claim. While Mancini’s

status as a career service employee is not at issue on appeal, it

was contested at trial.

The Northampton Home Rule Charter 1 states that all

County employees “shall be members of the career service,”

except for nine discrete categories of exempt employees. Id.

1

Under the Pennsylvania Constitution, counties “have

the right and power to frame and adopt home rule charters.”

Pa. Const. art. IX, § 2. A county “which has a home rule

charter may exercise any power or perform any function not

denied by this Constitution, by its home rule charter or by the

General Assembly at any time.” Id.; see 53 Pa. Cons. Stat. §

2961.

6

at 3325. We agree with the parties that Mancini’s position

did not fall within the meaning of any one of the nine

enumerated exemptions. 2 The Resolution that created

Mancini’s full-time assistant county solicitor position did not

state whether the position was exempt or career service.

However, former County Solicitor Longenbach testified that

he intended the full-time assistant county solicitor position to

be part of the career service, and that he believed the position

the County Council approved, and that Mancini occupied,

was, in fact, a career service position. Linda Markwith, a

personnel analyst in the Northampton County Human

Resources Department responsible for recruitment and hiring

when Mancini was hired as a solicitor, testified that

Mancini’s position was designated as career service from the

outset and the designation never changed. An email from

Markwith to Longenbach confirmed that Mancini’s position

was “included in the Career Service category.” Id. at 3388.

Meanwhile, defendant Scomillio testified that, based on his

research in 2013, he believed Mancini was not a member of

2

The nine exemptions from the career service are:

(1) all elected officials; (2) the heads of agencies immediately

under the direction and supervision of the County Executive;

(3) one confidential or clerical employee for each of the

above officials, except for members of the County Council;

(4) the Clerk of Council and the staff of the County Council;

(5) the members of authorities, boards, and commissions; (6)

permanent, part-time professional employees; (7) provisional,

probationary, and temporary employees; (8) officers and

employees required to be included in a state merit or civil

service system; and (9) officers and employees whose

inclusion in the career service would be prohibited by the law

of Pennsylvania. J.A. 3325.

7

the career service and that she could be laid off as part of a

reorganization. But, he conceded, if it were determined that

she was a career service employee, the County could not

terminate her without just cause.

B. Procedural History

Mancini filed a Complaint in the District Court against

Northampton County, Brown, and Scomillio (collectively, the

“Defendants”) under 42 U.S.C. § 1983. Relevant to these

appeals, she alleged the Defendants violated her Fourteenth

Amendment right to procedural due process when they

terminated her without a pretermination hearing or just cause

determination, and they violated her First Amendment rights

when they terminated her based on her political affiliation.3

The Defendants responded in their motion to dismiss that

Mancini failed to state a claim on either theory because she

was an exempt, or at-will, employee and her position was

eliminated pursuant to a legitimate, cost-driven reorganization

of the Solicitor’s Office. Mancini countered that the

“reorganization” was pretext for an unlawful termination and

that, as a Northampton County career service employee, she

was entitled to pretermination due process, which she did not

receive. The District Court denied the Defendants’ motion to

dismiss.

The Defendants moved for summary judgment on all

claims. They argued that Brown and Scomillio were entitled

to qualified immunity because their actions did not violate

3

Mancini’s equal protection claims were dismissed

before the case was submitted to the jury and are not a subject

of these appeals.

8

any clearly established rights. As to Mancini’s due process

claims, they also argued that Mancini had failed to establish

that she held a protected property interest in her position or

that she was entitled to due process when her position was

eliminated by reorganization. The District Court granted

Brown and Scomillio qualified immunity for all claims

brought against them in their individual capacities. As to the

remaining claims, the court reserved judgment on the

Defendants’ due process arguments and on all claims against

Northampton.

Mancini tried her claims against Northampton County,

and Brown and Scomillio in their official capacities. After a

five-day trial, the jury returned a split verdict. It found that

Northampton violated Mancini’s procedural due process

rights, but that Brown and Scomillio did not. Significantly,

the jury also found that Mancini’s full-time assistant county

solicitor position was a career service position. The jury

found no violation of Mancini’s First Amendment rights. The

jury awarded Mancini $94,232 in damages and the District

Court entered judgment consistent with the verdict.

Northampton moved for judgment as a matter of law

or a new trial under Rule 50 of the Federal Rules of Civil

Procedure. It asserted four bases for relief: (1) a miscarriage

of justice would result if the verdict were allowed to stand

because it was contrary to law, the evidence was insufficient

to support the verdict, and the verdict was against the weight

of the evidence; (2) the elimination of Mancini’s position fell

within a so-called “reorganization exception” to constitutional

procedural due process; (3) Northampton County law and

policy do not require procedural due process where a position

is eliminated as part of a reorganization; and (4) Pennsylvania

9

assistant county solicitors are employed at-will as a matter of

law and are not entitled to pretermination procedural due

process. Northampton advances these same four arguments

on appeal.

The District Court denied Northampton’s Rule 50

post-trial motion. Over Northampton’s objections, the

District Court granted Mancini $186,018.60 in attorney’s fees

and costs as the prevailing party under 42 U.S.C. § 1988.

These timely appeals followed. In Appeal No. 2790,

Northampton appeals the denial in part of its motion for

summary judgment and the denial of its post-trial motion for

judgment as a matter of law or a new trial. In Appeal No. 15-

3012, Northampton appeals the District Court’s award of

Mancini’s attorney’s fees and costs. 4

II.

The District Court had jurisdiction over this civil rights

action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343.

We have jurisdiction over the final decisions of a district

court. 28 U.S.C. § 1291.

4

Mancini cross-appealed seeking a new trial on her

First Amendment claims (Appeal No. 15-2873), but at oral

argument before this Court she withdrew her appeal, agreeing

with the Court that a second trial would be redundant. We

therefore do not reach the issues she presented in her cross-

appeal. In addition, even if Mancini had not withdrawn her

cross-appeal, we have reviewed her arguments regarding her

First Amendment claims and find those arguments

unconvincing in view of the jury’s factual determinations.

10

Our review of orders entered on motions for summary

judgment is plenary. See Blunt v. Lower Merion Sch. Dist.,

767 F.3d 247, 265 (3d Cir. 2014). “‘[W]e may affirm the

District Court on any grounds supported by the record,’ even

if the court did not rely on those grounds.” Id. (quoting

Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000)). “In

considering an order entered on a motion for summary

judgment, ‘we view the underlying facts and all reasonable

inferences therefrom in the light most favorable to the party

opposing the motion.’” Id. (quoting Pa. Coal Ass’n v.

Babbitt, 63 F.3d 231, 236 (3d Cir. 1995)). If the “non-

moving party fails sufficiently to establish the existence of an

essential element of its case on which it bears the burden of

proof at trial, there is not a genuine dispute with respect to a

material fact and thus the moving party is entitled to

judgment as a matter of law.” Id.

Our review of orders concerning post-trial motions for

judgment as a matter of law is also plenary and we apply the

same standard as the district court. Lightning Lube, Inc. v.

Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). The motion

may be granted “only if, viewing the evidence in the light

most favorable to the nonmovant and giving it the advantage

of every fair and reasonable inference, there is insufficient

evidence from which a jury reasonably could find liability.”

Id. We “may not weigh the evidence, determine the

credibility of witnesses, or substitute [our] version of the facts

for the jury’s version.” Id. “Because the jury returned a

verdict in favor of the plaintiff, we must examine the record

in a light most favorable to the plaintiff, giving her the benefit

of all reasonable inferences, even though contrary inferences

might reasonably be drawn.” In re Lemington Home for the

11

Aged, 777 F.3d 620, 626 (3d Cir. 2015) (quoting Dudley v. S.

Jersey Metal, Inc., 555 F.2d 96, 101 (3d Cir. 1977)).

We review the denial of a motion for a new trial for

abuse of discretion, unless it was based on an application of

law, in which case our review is plenary. McKenna v. City of

Phila., 582 F.3d 447, 460 (3d Cir. 2009). An abuse of

discretion occurs if a “court’s decision rests upon a clearly

erroneous finding of fact, errant conclusion of law or an

improper application of law to fact” or “when no reasonable

person would adopt the district court’s view.” Blunt, 767

F.3d at 265 (quotation marks omitted).

We similarly review the reasonableness of attorney’s

fees awarded under 42 U.S.C. § 1988 for abuse of discretion.

Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir. 1990).

III.

A. Northampton County’s Appeal of the Due

Process Judgment

Northampton appeals the denial of its post-trial motion

for judgment as a matter of law or a new trial, and the partial

denial of its motion for summary judgment. The County

reasserts on appeal the same four arguments it made in its

post-trial motion.

1. Sufficiency of the Evidence

The District Court held that sufficient evidence

supported the jury’s verdict that Northampton violated

Mancini’s due process rights. We agree.

12

In response to special interrogatories, the jury found by

a preponderance of the evidence that “Jill Mancini’s position

as a full time assistant county solicitor in Northampton

County was a career service position” and that Northampton

County “violated Jill Mancini’s due process rights by not

providing her with a meaningful pre-termination opportunity

to respond to the elimination of her position.” J.A. 1634.

Northampton did not challenge the sufficiency of the

evidence supporting the jury’s finding that Mancini held a

career service position. See Br. of Northampton at 51-55.

Northampton has therefore waived any such argument. See

Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler

Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is

waived unless a party raises it in its opening brief”). We

accept in this appeal, as we must, that Mancini was in fact a

career service employee. See Lightning Lube, Inc., 4 F.3d at

1166. Nevertheless, given the significance of Mancini’s

status as a career service employee to our decision, we review

the evidence from which the jury could have concluded that

Mancini was a career service employee.

The plain text of the Northampton Home Rule Charter

states that all non-exempt County employees are members of

the career service. Full-time professional employees are not

listed among the exemptions, and none of the exemptions

could fairly include a full-time permanent assistant county

solicitor such as Mancini. Karl Longenbach, the County

Solicitor who headed the Solicitor’s Office when Mancini

was hired and who presented the concept of a full-time

assistant county solicitor to the County Council, testified that

Mancini occupied a career service position. Linda Markwith,

13

the Northampton Human Resources representative who

handled Mancini’s hiring, further testified that the

Northampton Human Resources information system

designated Mancini as a member of the career service during

the entire time she held the position. Defendant Scomillio

testified that even though he thought Mancini was an at-will

employee, he and Brown decided to eliminate her position

though a reorganization of the Solicitor’s Office, rather than

terminating her like the other at-will employees they

dismissed. Based on these facts, had Northampton

challenged this aspect of the jury’s verdict, we would have

concluded that the evidence was sufficient to support the

finding that Mancini was a member of the Northampton

County career service.

The evidence was also sufficient to establish that

Northampton did not provide Mancini the meaningful process

she was due. The Due Process Clause of the Fourteenth

Amendment prohibits a State from “depriv[ing] any person of

life, liberty, or property, without due process of law.” U.S.

Const. amend. XIV, § 1. For a discharged government

employee to succeed on a violation of procedural due process

claim, the employee must first prove that she possessed a

constitutionally protected property right in her continued

employment. See Wilson v. MVM, Inc., 475 F.3d 166, 177

(3d Cir. 2007). A “unilateral expectation of continued

employment” does not amount to a constitutionally protected

property interest in one’s job. Elmore v. Cleary, 399 F.3d

279, 282 (3d Cir. 2005). Where, however, an employee can

only be fired for “just cause,” the employee develops a

cognizable property interest in her continued employment,

and the government may not fire her without providing

procedural due process. Dee v. Borough of Dunmore, 549

F.3d 225, 230-32 (3d Cir. 2008).

14

The Northampton Home Rule Charter provides that no

member of the career service shall be “dismissed . . . except

for just cause.” See J.A. 3326. We have already established

that Mancini was a career service employee. Because career

service employees in Northampton can only be terminated for

just cause, we conclude that Mancini had a protected property

interest in her job, and she was entitled to notice and an

opportunity to be heard on the cause for her termination prior

to dismissal.

Fundamentally, procedural due process requires notice

and an opportunity to be heard. Mathews v. Eldridge, 424

U.S. 319, 333, 348 (1976). The hearing must be “at a

meaningful time and in a meaningful manner.” Id. at 333.

Except in emergency situations not present here, procedural

due process requires that when the government seeks to

discharge an employee who possess a protected property

interest in her job, “it must afford notice and opportunity for

hearing appropriate to the nature of the case before the

termination becomes effective.” Dee, 549 F.3d at 232

(emphasis added).

Mancini did not receive adequate due process. Even

now, Northampton maintains that, in light of the

reorganization, it did not need just cause to terminate Mancini

and that it would have been idle to provide her with due

process. Northampton is incorrect that no process was due.

At a minimum, Mancini’s protected property interest in her

continued employment entitled her to “notice of the charges

against [her], an explanation of the [Defendants’] evidence,

and an opportunity to present [her] side of the story.”

Schmidt v. Creedon, 639 F.3d 587, 596 (3d Cir. 2011)

15

(quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

546 (1985)). The process she received was deficient on all

fronts.

Mancini was notified that the full-time assistant county

solicitor position was being changed to a part-time position,

but the Defendants did not inform her of their charges against

her or their reasons for selecting her for dismissal. 5 Without

knowing the Defendants’ rationale for selecting her for layoff,

Mancini was not able to present her side of the story.

Furthermore, the Defendants did not hold a hearing on

Mancini’s termination until after she was fired, despite the

fact that she had promptly and properly availed herself of the

Northampton grievance procedure several weeks before her

termination. We hold that this evidence was sufficient to

support the jury’s verdict that Northampton did not provide

Mancini a meaningful pre-termination opportunity to respond

to her planned dismissal. The finding was not contrary to

law, and the District Court did not abuse its discretion in

denying Northampton a new trial on Mancini’s due process

claims.

2. A “Reorganization Exception” to Procedural

Due Process?

Northampton asks us to excuse its conduct by adopting

and applying an exception to the ordinary requirements of

constitutional procedural due process. Northampton argues

that “[a]lthough a property right and procedural due process

5

Evidence supporting a finding that the purportedly

neutral, cost-driven reorganization was in fact pretext for

targeting Mancini is discussed in the next section.

16

typically go hand-in-hand triggering a requirement for some

kind of hearing before discharge, [there is] a limited

reorganization exception to due process that eliminates the

need for a hearing where a reorganization or other cost-

cutting measure results in the dismissal of an employee.” Br.

of Northampton at 37 (alterations in original) (quoting

Whalen v. Mass. Trial Ct., 397 F.3d 19, 24 (1st Cir. 2005))

(quotation marks omitted). Northampton contends it was not

required to provide Mancini with any procedural due process

before, or after, it terminated her, because once the

reorganization of the Solicitor’s Office occurred, Mancini’s

position no longer existed. Any challenge to the injustice of

Mancini’s dismissal would have been “futile,” according to

Northampton, because as a factual matter there was no longer

room for her in the County government. Id. at 39 (quoting

Rodriguez-Sanchez v. Municipality of Santa Isabel, 658 F.3d

125, 130 (1st Cir. 2011)).

We have not previously considered the existence of

this so-called “reorganization exception” to procedural due

process, and we decline to apply any exception to

Northampton’s conduct in this case. Because the jury could

have reasonably concluded that the reorganization of the

Solicitor’s Office was pretext for unlawfully terminating

Mancini, we do not reach the question of whether there are

exceptions to the requirements of procedural due process

where the government engages in a legitimate person-neutral

reorganization.

Although the jury was not directed to make a specific

finding on pretext, the jury found that Northampton violated

Mancini’s due process rights, and we agree with the District

Court that Mancini presented sufficient evidence of pretext to

17

support that finding. Mancini presented evidence from which

a jury could reasonably conclude that the Defendants’

purported concern for cost-savings did not actually animate

the reorganization. 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 Mancini and the people who

would come to occupy the part-time positions. 6

Evidence of pretext included the following. Scomillio

and Brown decided to reorganize the Solicitor’s Office

shortly after Brown was elected County Executive in

November 2013, even before he took office. Brown testified

that when he asked Scomillio to consider a reorganization,

Brown did not know what the budget of the Solicitor’s Office

was and he did not have any personal knowledge of whether

the office was running efficiently. Without any investigation,

without asking Human Resources to conduct a desk audit to

determine the volume of work, and without looking at

solicitors offices in comparable counties, Scomillio

recommended, based on his knowledge of who was on the

staff of the Solicitor’s Office, that they shift the work of the

6

Northampton is incorrect in its view that the jury

found that the reorganization of the Solicitor’s Office was

legitimate. The jury found that Mancini’s political affiliation

was not a substantial or motivating factor in the elimination

of her position. However, this does not rule out a multitude

of other improper bases for her termination, including the

possibility that Northampton orchestrated a sham

reorganization to target Mancini and circumvent the process

she was due as a member of the career service.

18

full-time solicitors to part-time solicitors. Scomillio had

experience with the individuals he planned to hire as part-

time solicitors and he believed they would work more

efficiently than the existing staff.

When they decided to conduct the reorganization,

Brown and Scomillio had concerns about the competency of

the Solicitor’s Office in general, and about Mancini in

particular. Brown testified that the “reputation of the

[Solicitor’s Office] was not strong.” J.A. at 2496. Scomillio

testified that his prior experience with Mancini, when she

worked in the district attorney’s office, “wasn’t good” and he

“didn’t come off with a good experience about her abilities.”

Id. 2657. Scomillio had no interest in keeping Mancini on

staff after she reacted negatively to his suggestion of a

reorganization and informed him that she could only be fired

for cause. Scomillio also testified that Daniel Spengler, his

predecessor, 7 advised him to retain the position of full-time

assistant solicitor but was “equivocal at best regarding his

feeling about Attorney Mancini and her . . . work ability.”

J.A. at 2650. Instead of taking Spengler’s advice to keep the

full-time positions but not Mancini, the Defendants

eliminated the full-time positions and told Mancini that her

job no longer existed. They redistributed Mancini’s work to

part-time solicitors—both old and new—without giving her

the option to remain employed with the County.

Evidence that Northampton failed to comply with its

Layoff Policy casts further doubt on its claim that it engaged

7

Longenbach resigned as County Solicitor at the end

of 2012. Daniel Spengler was appointed to serve the final

year of Longenbach’s term.

19

in a bona fide reorganization plan. Under the Layoff Policy,

career service employees are entitled to retention priority over

part-time employees, to notice of existing vacancies and the

right to displace less senior employees in the same or lower

job title, and to be placed on a recall list to fill subsequent

vacancies in the same or lower job title. The Layoff Policy

thus favors regular and full-time career service employees

over part-time employees, and requires the County to give

notice of vacancies to career service employees who are

subject to layoff. Despite these enumerated rights,

Northampton laid-off Mancini, a regular, full-time career

service employee, and distributed her work 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

newly created positions.

Viewing the evidence in the light most favorable to

Mancini and drawing all reasonable inferences in her favor,

the evidence was more than sufficient for a jury to determine

that the Defendants targeted Mancini based on her personal

performance, and that the reorganization was pretext for

firing her. Northampton’s argument that “pre-termination

hearings are not required by due process where a bona fide

government reorganization plan bases dismissals on factors

unrelated to personal performance” is therefore misplaced.

Br. of Northampton at 39 (quoting Rodriguez-Sanchez, 658

F.3d at 130) (emphasis added). The cases on which

Northampton relies do not apply where a reorganization was

pretextual. See id. at 35-40. 8

8

In Whalen v. Massachusetts Trial Court, the First

Circuit held that a “limited ‘reorganization exception’” did

not apply to a court clerk because his job performance and

20

other individual qualifications were decisive factors in the

decision of the Springfield District Court to terminate him

during a deficit-driven layoff. 397 F.3d at 22-26. The First

Circuit held that the Government violated Whalen’s due

process rights because it targeted him, not his position, in the

layoff. Id. at 25-26. Similarly, Mancini was one of only two

people “reorganized” out of a job in the Solicitor’s Office and

there was evidence that the Defendants targeted her based on

her individual qualifications and not her position.

In Rodriguez-Sanchez v. Municipality of Santa Isabel,

the First Circuit did permit the government to lay off

employees during a reorganization without the process they

were otherwise due, but the neutral reduction in force in that

case bears little resemblance to the evidence Mancini

presented. See 658 F.3d at 132. Rodriguez-Sanchez involved

the claims of ninety-eight terminated employees of the

Municipality of Santa Isabel, Puerto Rico. See id. at 129. An

independent accounting firm determined that Santa Isabel’s

$7 million deficit was largely due to the size of the city’s

workforce. Id. at 127, 130. There was no question that the

system-wide layoff plan alleviated the deficit problem. Id. at

130. Significantly, the record in Rodriguez-Sanchez was

devoid of evidence of pretext, and the mayor had no

knowledge of the identities of the individuals selected for

layoff. Id. at 130-31. The First Circuit was thus satisfied that

Santa Isabel had engaged in a bona fide reduction in force in

response to a deficit crisis. Id. at 130-32. Unlike the system-

wide, identity-neutral layoff scenario the First Circuit

confronted in Rodriguez-Sanchez, Mancini was one of only

two solicitors laid-off for purported budgetary reasons, and

her identity was well known to County Executive Brown.

There was no independent evaluation of the cost-savings that

21

Finally, we reject Northampton’s argument that a “due

process claim is not available if a layoff was made pursuant to

a reorganization in fact, regardless of a possible improper

motive behind the reorganization.” See Reply Br. of

Northampton at 23. We are aware of no court that has

permitted the government to subvert the requirements of the

Fourteenth Amendment with a sham reorganization. If the

government were allowed to undertake sham reorganizations

to dismiss an employee who was otherwise entitled to due

process, Northampton’s proposed “reorganization exception”

would eviscerate a public employee’s procedural due process

rights altogether.

In conclusion, we will 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. “To hold otherwise would allow government

officials to cry ‘reorganization’ in order to circumvent the

constitutional and statutory protections guaranteed” to

government employees who may only be fired for cause.

Misek v. City of Chicago, 783 F.2d 98, 101 (7th Cir. 1986).

There was sufficient evidence from which the jury could

conclude that the reorganization was a pretext for targeting

Mancini. Northampton was therefore not exempt from

providing Mancini, a protected career service employee, with

procedural due process when it selected her for dismissal.

3. Northampton County’s Grievance Procedure

would result from the Defendants’ plan, and there was

evidence that the Defendants considered Mancini’s individual

qualifications when selecting her for layoff.

22

Northampton next argues that its own law and policy

contain a reorganization exception that permitted the County

to terminate Mancini without providing her procedural due

process. See Br. of Northampton at 40-45. The District

Court properly denied Northampton’s request for judgment as

a matter of law on this basis. The Northampton Home Rule

Charter, Grievance Policy, and Layoff Policy entitled

Mancini to a hearing before the Personnel Appeals Board to

challenge the legitimacy of her discharge, despite the

purported reorganization.

The Northampton Home Rule Charter, as discussed

above, establishes the right of career service employees to

remain employed, except on a finding of “just cause.” The

Charter makes no exception or special provision for

reorganizations. Mancini, as a member of the Northampton

career service, was therefore entitled to a pretermination just

cause determination, regardless of any bona fide

reorganization plan. See Dee, 549 F.3d at 232; Elmore, 399

F.3d at 282.

Under Northampton County Employee Policy No.

3.15, “Grievance Procedure” (the “Grievance Policy”), career

service employees have the right to appeal “a suspension or

discharge from employment,” or to challenge “an alleged

violation of the County’s Home Rule Charter, Administrative

Code, Career Service Regulations, County policy, or

departmental procedure relating to terms and conditions of

employment.” J.A. 3374. The four-step escalated grievance

process culminates in a formal hearing before the

Northampton County Personnel Appeals Board. Id. at 3376-

78. Following the hearing, the Board must issue to the parties

a final written adjudication that contains the “findings and

23

reasons as adopted by the majority of the Board.” Id. at 3378.

Like the Home Rule Charter, the Grievance Policy contains

no exceptions for employment actions taken as part of a

reorganization or cost-driven layoff. Mancini, a career

service employee, properly filed a grievance after receiving

notice of her impending dismissal. She alleged wrongful

discharge, unlawful discrimination, and violations of

Northampton’s Career Service Regulations and Layoff

Policy. She was therefore entitled to pursue her claims

through the Northampton County grievance process.

Northampton boldly asserts that its Layoff Policy

“does not offer a right to due process in response to a

legitimate reorganization.” Br. of Northampton at 43. The

Layoff Policy, however, does not provide the escape hatch

Northampton seeks. It, too, entitled Mancini to due process.

The Layoff Policy governs dismissals where the “County may

need to institute a Reduction in Force (RIF, Layoff) due to

economy, efficiency, restructuring, reorganization, or other

related reasons.” J.A. 3380. By its own terms, the policy

applies “to all County employees.” Id. 9 The Layoff Policy

permits employees to appeal a layoff to the Personnel

Appeals Board on the grounds that the “Career Service

Regulations were not followed, or that the decision to select

this layoff unit was arbitrary, capricious, or a violation of

law.” Id. at 3383. Mancini was therefore entitled under the

9

The Layoff Policy applies to all County employees,

“except where collective bargaining agreements,

Pennsylvania State regulations, and/or State Civil Service

regulations conflict,” but none of these exceptions are

implicated here. J.A. 3380.

24

policy to appeal her discharge precisely because the County

called it a layoff. Mancini’s grievance specifically referenced

violations of the Career Service Regulations as well as

violations of the Layoff Policy. If, as Northampton

maintains, Mancini was dismissed pursuant to a layoff, under

the Layoff Policy she was entitled to a hearing on her claims.

We reject Northampton’s selective reading of its own laws. 10

We hold instead that those laws required the County to

provide Mancini with a pretermination hearing. 11

***

In sum, we agree with the District Court that

Northampton County is not entitled to a judgment that, as a

matter of law, it was not required to provide Mancini with

procedural due process prior to terminating her employment.

We will therefore affirm the orders of the District Court

10

We note the irony of Northampton’s argument that

the Layoff Policy deprived Mancini of rights, when in fact, as

discussed above, the policy enumerates the array of rights and

privileges Northampton grants to full-time career service

employees in the event of a reduction in force.

11

We also find no merit to Northampton’s contention

that Ness v. Marshall, 660 F.2d 517 (3d Cir. 1981), dictates

the outcome of Mancini’s Due Process claims. Ness

concerned the First Amendment rights of solicitors for the

City of York, who, under that city’s administrative code, were

political appointees and could be terminated at-will. Id. at

521-22. Contrary to Northampton’s suggestion, we have

never held that every town or county solicitor in Pennsylvania

is employed at-will as a matter of law.

25

denying Northampton’s motion for summary judgment and

denying its post-trial motion for judgment as a matter of law

or a new trial.

B. Attorney’s Fees

Over Northampton’s objection, the District Court

awarded Mancini $186,018.60 in attorney’s fees and costs as

the prevailing party under 42 U.S.C. § 1988. Northampton

argues that Mancini’s requested attorney’s fees were not

reasonable because she “prevailed only minimally, on a single

claim out of 15 available claims, receiving a jury award that

was 5% of the damages requested.” Br. of Northampton at

55; see id. at 55-58; Reply Br. of Northampton at 31-32

(“Plaintiff was negligibly successful, recovering $94,232

where she had sought nearly two million dollars.”). 12 The

District Court reduced the fees by the amount Mancini’s

counsel incurred preparing for oral argument on her post-trial

motion ($1,627.67), and subtracted an additional $126 to

adjust for a duplicative entry on a bill. After these

adjustments, the District Court awarded Mancini her

requested fees, explaining that “[t]he Supreme Court . . . has

expressly rejected the County’s proffered ‘mathematical

12

Northampton does not contest the reasonableness of

Mancini’s lawyers’ rates. See Br. of Northampton at 55-58.

Northampton also does not contest the reasonableness of the

award of costs and expenses. See id. These issues are

therefore waived. See Laborers’ Int’l Union of N. Am., AFL-

CIO, 26 F.3d at 398.

26

approach.’” J.A. 37-8 (citing Hensley v. Eckerhart, 461 U.S.

424, 435, n.11 (1983)).

Under 42 U.S.C. § 1988, a “prevailing plaintiff” in a

civil rights action should ordinarily recover her attorney’s

fees. See Hensley, 461 U.S. at 429. A plaintiff is a

“prevailing party” for the purposes of an attorney’s fee award

if she succeeds “on any significant issue in litigation which

achieves some of the benefit the parties sought in bringing

suit.” Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 163 (3d

Cir. 2002) (quoting Hensley, 461 U.S. at 433). Where a

plaintiff does not succeed on every claim, the Supreme Court

has rejected a fee calculation approach that compares the total

number of issues in the case with the number of issues on

which the plaintiff prevailed. See Hensley, 461 U.S. at 435

n.11. Rather, where the plaintiff’s claims involve a “common

core of facts,” or are based on “related legal theories,” but the

plaintiff obtained only partial or limited success, the district

court may choose to reduce the award if a full compensatory

fee would be unreasonable in consideration of the degree of

success obtained. Id. at 435-36. How to measure the degree

of success is left to the district court’s discretion. Id. at 436-

37.

The District Court in this case held that Mancini’s

claims all shared “a common core of facts” because “[a]ll

three claims emerged from how and why Mancini was

terminated from her employment.” J.A. 38. Furthermore,

Mancini “prevailed on a crucial issue which informed

inquiries into all three claims and occupied much of the

trial testimony: The jury found she was a career service

employee.” Id. The District Court therefore concluded that

“although Mancini ultimately prevailed only on one claim

27

and received a portion of the relief she sought, reduction

would be inappropriate because her claims are

interconnected.” Id.

The District Court did not abuse its discretion.

Mancini prevailed on her due process claim against

Northampton as well as a central issue in the case. There was

substantial overlap in the evidence required to prove

Mancini’s due process, First Amendment, and equal

protection claims, including the circumstances surrounding

the creation of the full-time assistant solicitor positions and

the decision to eliminate those positions and replace them

with part-time assistant solicitors. The District Court

considered the extent of Mancini’s success and made a

reasoned judgment that the time Mancini’s attorneys spent on

her unsuccessful claims did not warrant a reduced fee.

Finding no abuse of discretion, we will affirm the District

Court’s award of attorney’s fees, costs, and expenses.

IV.

For the foregoing reasons, we will affirm the District

Court’s judgment and we will dismiss Mancini’s cross-

appeal.

28