decided as amended october 2 1980.: July 28, 1980.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 76-0683)
Before Rosenn, Garth and Sloviter, Circuit Judges.
In this appeal Carolyn Mazus claims she was a victim of sex discrimination and that her first amendment rights were violated when the Pennsylvania Department of Transportation (PennDOT or Department) delayed in offering her a position as a highway maintenance worker. We agree with the district court and hold that Mazus sustained no violation to her rights.
During part of and prior to 1974, the hiring of non-Civil Service Employees by PennDOT, whether male or female, was done under Pennsylvania's time-hallowed "patronage" system and not controlled by the Department. In Pike County the system operated as follows: PennDOT's personnel officer in Harrisburg advised the Governor's personnel representative of a vacancy after learning about it from a county office. The Governor's personnel representative would notify the local county chairman of the Governor's political party and forward a job application. The application then would be delivered by the chairman or his designee to the selected candidate or to PennDOT's county office in Milford. The county chairman issued only one application for each vacancy. The county chairman attempted to fill the job with a person residing in the township where the position was vacant.
From 1971 until the present, PennDOT has been operating under severe budgetary limitations. When a person with a field position left the Department that position was abolished. Thus, PennDOT's total complement had been reduced from 22,000 in 1971 to 17,000 in November of 1977. From 1971 to November of 1977, only 22 people were hired for Highway Maintenance Worker positions in Pike County.
In July 1974, the Secretary of Transportation informed Pike County Chairman Ernest Gastmeyer that some highway maintenance men would be hired in the coming fall of that year. Because of the scarcity of highway job openings since 1971, Gastmeyer had decided who would receive them and where they might be assigned.
In October 1974, PennDOT voluntarily initiated an affirmative action program which is the genesis of this proceeding. Appellant's husband, Daniel, a Department employee working in Pike County, received with his paycheck a flyer promoting affirmative action by encouraging employees to suggest to minority and female acquaintances that they apply for PennDOT jobs. Mrs. Mazus, unemployed at the time, asked her husband to obtain an application from the County Superintendent, Leonard Coddington. Mr. Mazus asked Coddington in November 1974 for such an application but Coddington was unable to obtain one. Mrs. Mazus decided to seek an application directly by the procedures suggested in the flyer. She made several trips to the PennDOT county and district offices but was always turned down. She was ridiculed by PennDOT managers at these offices who on a personal basis seemed to feel it was beneath the dignity of a woman to labor on the roads. The district court, however, found that these managers had no hiring authority.
On November 20, 1974 Mrs. Mazus communicated directly with Gastmeyer, the Pike County Democratic Chairman, who told her there were no openings for road workers. Because Mrs. Mazus wished to place an application on file should openings develop, she arranged to meet Gastmeyer at his home at 5:00 P.M. that day. When Mrs. Mazus arrived, Gastmeyer was not there. Mazus never contacted Gastmeyer again.
In late November and December 1974, PennDOT hired nine men as Highway Maintenance Workers. The district court found that all of these men had been seeking a position with the Department for some time prior to Mrs. Mazus.
On November 29, 1974, Mrs. Mazus filed a charge with the EEOC alleging that PennDOT engaged in sex discrimination in failing to hire her. On April 2, 1975, Mazus obtained an application from the Governor's Personnel Office, through the assistance of John Harhigh, the Department's Personnel Coordinator. Harhigh told Coddington that the failure to consider a female applicant was contrary to Departmental policy and informed him that Mrs. Mazus should be hired for the next job that became available. Accordingly, PennDOT hired Mazus and she started working as a highway maintenance worker in May 1977. Meanwhile, on November 7, 1975, EEOC issued its determination that there was reasonable cause to believe that Mrs. Mazus was denied the opportunity during 1974 to apply for a highway maintenance job on the basis of her sex and reasonable cause to believe that PennDOT discriminates against women as a class in hiring.
Mrs. Mazus brought suit in the district court under 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act, for compensatory and punitive damages as well as injunctive relief alleging that the Department's patronage hiring system was unconstitutional and that she was the victim of PennDOT's discriminatory hiring practices. She sought class certification for her claims. After trial, Chief Judge Nealon held that because Mrs. Mazus was not denied political rights, the hiring system was not unconstitutional. Mazus' motion for class certification was denied.
To prove a prima facie case of sex discrimination, Mazus introduced federal census data of the classification "laborers except farm" which showed women comprising 7.6 percent of that category. PennDOT employed only six women as laborers or only 0.17 percent. The Department, however, introduced evidence of statistics from the Pennsylvania Bureau of Employment which showed that women comprise only .51 percent of the available personnel in the relevant category. Judge Nealon concluded that the census statistics and other evidence did not establish a prima facie case of sex discrimination. In the alternative, Judge Nealon found that even if a prima facie case been made out, it had been sufficiently rebutted by PennDOT's evidence that the jobs were assigned to persons who had applied prior to the plaintiff. Mrs. Mazus appeals.
Appellant's first contention is that PennDOT's hiring system was an unconstitutional patronage system under Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). In Elrod, the Court considered whether employees who allege that they were discharged or threatened with discharge solely because of their political affiliation or nonaffiliation state a claim for deprivation of constitutional rights secured by the first and fourteenth amendments. The plaintiffs claimed they were discharged or threatened with discharge solely for the reason they were not affiliated with or sponsored by the Cook County Democratic Party. In a plurality opinion, the Court concluded that the allegations of patronage terminations, if true, impermissibly constrained an individual's ability to act according to his beliefs and associate with others and therefore violated the first amendment.*fn1
The Supreme Court has not considered whether Elrod applies to patronage hirings as well as firings. In Rosenthal v. Rizzo, 555 F.2d 390 (3d Cir.), cert. denied, 434 U.S. 892, 98 S. Ct. 268, 54 L. Ed. 2d 178 (1977), this court considered the constitutionality of a political discharge of a Philadelphia employee. In dicta, the court stated:
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, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976).
Mrs. Mazus argues that Rosenthal creates a cause of action in this circuit for patronage hirings. Although the language of Rosenthal clearly covers patronage hirings it is pure dicta and not binding on this court. We do not believe it is necessary in this case to determine whether such a cause of action exists*fn2 because, assuming arguendo a cause of action for patronage hiring, Mazus failed to prove sufficient facts. The key to Elrod and its progeny is the interference with political rights and political association. The district court concluded "that plaintiff's failure to obtain an application and appointment as a highway maintenance worker was (not) conditioned in any way which infringed her right of political association." The only proof offered by Mazus was that she had to see the county chairman to pick up a job application. She went to see the chairman once and missed him. There is no evidence as to what political views or affiliations Mazus addresses. There is no evidence that any of Mazus' activities were chilled in any manner. There is no evidence that the county chairman required a pledge of allegiance or support to any political party from Mazus or that he considered her political ...