It is my duty to instruct you on whether [plaintiff] engaged in activity that was protected by the First Amendment. In this case, I instruct you that the following activity was protected by the First Amendment:
[Describe specifically the plaintiff’s protected activity]. In the rest of this instruction, I will refer to these events as “[plaintiff’s] protected activity.”In order for [plaintiff] to recover on this claim against [defendant], [plaintiff] must prove both of the following by a preponderance of the evidence:
Second: [Plaintiff’s] protected activity was a motivating factor in [defendant's] decision.
[For use where defendant sets forth a “same decision” affirmative defense:31
However, [defendant] argues that [he/she] would have made the same decision to [describe adverse action] whether or not [plaintiff] had engaged in the protected activity. If [defendant] proves by a preponderance of the evidence that [defendant] would have treated [plaintiff] the same even if [plaintiff's] protected activity had played no role in the employment decision, then your verdict must be for [defendant] on this claim.]
COMMENT
Structure of test.The Court of Appeals applies “a well-established three-step test to evaluate a public employee's claim of retaliation for engaging in activity protected under the First Amendment.” Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005), abrogated on other grounds by Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011).32 “First, the employee must show that the activity is in fact protected.” Hill, 411 F.3d at 125 (citing Pickering v. Bd. of Educ., 391 U.S. 563 (1968)).33 “Second, the employee must show that the protected activity ‘was a substantial factor in the alleged retaliatory action.’” Id. (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). “Third, the employer may defeat the employee's claim by demonstrating that the same adverse action would have taken place in the absence of the protected conduct.” Id.34
Comparison with Title VII.
The Court of Appeals once stated, in the retaliation context, that “[t]he causation required to establish a claim under § 1983 is identical to that required under Title VII.” Brennan v. Norton, 350 F.3d 399, 420 (3d Cir. 2003), abrogated on other grounds by Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011). On other occasions, however, it used distinct tests for each. See Azzaro v. County of Allegheny, 110 F.3d 968, 973-75 (3d Cir. 1997) (en banc). In University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), the Court rejected the motivating-factor standard for claims under Title VII’s retaliation provision. Nassar, however, did not disturb the standard used for First Amendment retaliation claims. As a result, the causation standard for Title VII retaliation claims is “but for” causation, while the causation standard for First Amendment retaliation claims is “motivating factor,” subject to the “same decision” affirmative defense. See also Nicholas v. Pennsylvania State University, 227 F.3d 133, 144 (3d Cir. 2000) (“First Amendment retaliation cases are not governed by Title VII's burden-shifting analysis, but rather by [the] Mount Healthy framework. In that case, the Supreme Court made it crystal clear that an employee may not recover in a dual-motives case if the employer shows that it would have taken the same action even absent the protected speech.”).
Moreover, in order to be protected by the First Amendment, the plaintiff’s statement ordinarily36 must not be made pursuant to the plaintiff’s job responsibilities37 as a government employee: A closely divided Court held in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 1960.38 The Court of Appeals has since held that when testifying truthfully in court proceedings, a public employee speaks as a citizen even if the court testimony stemmed from the employee’s official duties in an investigation: “the act of offering truthful testimony is the responsibility of every citizen, and the First Amendment protection associated with fulfilling that duty of citizenship is not vitiated by one's status as a public employee. That an employee's official responsibilities provided the initial impetus to appear in court is immaterial to his/her independent obligation as a citizen to testify truthfully.” Reilly v. City of Atlantic City, 532 F.3d 216, 231 (3d Cir. 2008). In Lane v. Franks, 134 S. Ct. 2369, 2378 (2014), the Supreme Court endorsed Reilly, holding “[t]ruthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes.” It reserved, however, the question of whether this would also be true for testimony given as “part of an employee’s ordinary job duties.” Id. at n.4.
The court of appeals has rejected the argument that Garcetti “precludes First Amendment protection for speech that ‘owes its existence to a public employee's professional responsibilities,’” insisting on the more speech protective standard of whether the speech was made “pursuant to official duties.” Dougherty v. School Dist. of Philadelphia, 772 F.3d 979, 989 (3d Cir. 2014). It also noted the possibility, but did not decide, that Lane—by repeatedly referring to speech that is ordinarily within the scope of an employee’s duties—might narrow the range of employee speech left unprotected by Garcetti. Id. at 990. See also Javitz v. Cty. of Luzerne, 940 F.3d 858 (3d Cir. 2019) (holding that the Director of Human Resources was speaking as a citizen, not as an employee, when she reported that she was the victim of a crime committed by another public employee because speaking to the District Attorney was not part of her primary job duties, nor was reporting a crime within her ordinary job duties, even though her job gave her easier access to the District Attorney and an ethics code encouraged the reporting of wrongdoing); Bradley v. W. Chester Univ. of Pennsylvania State Sys. of Higher Educ., 880 F.3d 643, 652-53 (3d Cir. 2018) (holding that the Director of Budget and Financial Planning at the West Chester University of Pennsylvania claimed was speaking as an employee when she voiced concerns to the Enrollment Management Committee about the accuracy and legitimacy of a budget document, but not deciding whether an employee who bypasses the ordinary chain of command is therefore outside the employee’s ordinary job responsibilities, because Bradley was not speaking outside her chain of command); Flora v. County of Luzerne, 776 F.3d 169, 180 (3d Cir. 2015) (relying on Dougherty and holding that a public defender’s “ordinary job duties did not include the public reporting of lingering effects from government corruption or the filing of a class action suit to compel adequate funding for his office. Rather, he represented indigent clients in criminal court and in related proceedings.”). DeRitis v. McGarrigle, 861 F.3d 444 (3d Cir. 2017), involved a public defender who circulated a rumor that he had been demoted for taking too many cases to trial. The court of appeals held that his statements to this effect made to lawyers and judges in court while waiting for proceedings to begin were not citizen speech but within his ordinary job duties and hence unprotected under Garcetti. His statements to lawyers while not in court, and his statements to the County Solicitor and the chairman of the County Council, however, were “arguably citizen speech.” 861 F.3d at 454. For a discussion (albeit without resolution) of the difficulties involved in applying Garcetti to speech by an elected official, see Werkheiser v. Pocono Twp., 780 F.3d 172 (3d Cir. 2015); cf. Zaloga v. Borough of Moosic, 841 F.3d 170, 176-77 (3d Cir. 2016) (discussing the legal uncertainty involved in deciding “when a government official’s own speech can... constitute unconstitutional retaliation”).
Before applying the Connick/Pickering test, the court must first determine the content of the relevant speech. In Waters v. Churchill, the Supreme Court addressed whether the analysis should proceed based upon “what the government employer thought was said, or... what the trier of fact ultimately determines to have been said.” Waters, 511 U.S. at 664 (plurality opinion). The plurality rejected the latter test, because it reasoned that such a test “would force the government employer to come to its factual conclusions through procedures that substantially mirror the evidentiary rules used in court.” Id. at 676. But the plurality also rejected the notion that “the court must apply the Connick test only to the facts as the employer thought them to be, without considering the reasonableness of the employer's conclusions.” Id. at 677. Rather, the plurality concluded that “courts [should] look to the facts as the employer reasonably found them to be.” Id. at 677 (emphasis in original).39
The plurality’s approach struck a middle course between the approaches favored by the remaining Justices. Three Justices in Waters would have rejected the requirement that the employer’s belief concerning the content of the speech be reasonable. See Waters, 511 U.S. at 686 (Scalia, J., joined by Kennedy & Thomas, JJ., concurring in the judgment). The other two Justices, by contrast, would have focused upon what the trier of fact ultimately determined the plaintiff had actually said (regardless of what the employer believed). See id. at 696 (Stevens, J., joined by Blackmun, J., dissenting). Thus, as Justice Souter pointed out in his concurrence, the approach taken by the Waters plurality appears to be the one that courts should follow, because an approach favoring greater liability than the plurality’s would contravene the approaches taken by a majority of Justices, while an approach favoring narrower liability would also contravene the approaches of a majority (albeit a different majority) of Justices.40
The Waters plurality did not explicitly address the question of who should determine what the employer reasonably believed.41 However, the plurality’s application of its test is indicative: it stated that “if petitioners really did believe Perkins-Graham's and Ballew's story, and fired Churchill because of it, they must win. Their belief, based on the investigation they conducted, would have been entirely reasonable.” Waters, 511 U.S. at 679-80. The plurality’s willingness to analyze the reasonableness of the employer’s belief indicates that the plurality viewed the reasonableness of the belief as a question of law for the court. However, where there are material and disputed questions of historical fact – concerning the steps taken to investigate, or concerning whether the employer actually believed the relevant version of the employee’s speech – those questions presumably would be for the trier of fact.42
Whether the plaintiff’s statements were protected by the First Amendment is a question of law for the court. See Azzaro v. County of Allegheny, 110 F.3d 968, 975 (3d Cir. 1997) (en banc) (“We must first inquire whether Azzaro's reports to Fox and Sirabella were protected by the First Amendment. This is a question of law.”).43 Three conditions must be met in order for the plaintiff’s statements to be protected. “First, the employee's [expressive] conduct must address a ‘matter of public concern,’ which is to be determined by the ‘content, form, and context of a given statement, as revealed by the whole record.’” Azzaro, 110 F.3d at 976 (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)).44 Second, the employee’s expressive conduct must not have been part of the employee’s job duties. See supra (discussing Garcetti v. Ceballos, 126 S. Ct. 1951 (2006)). Third, “the value of that expression must outweigh ‘the government's interest in the effective and efficient fulfillment of its responsibilities to the public.’” Azzaro, 110 F.3d at 976 (quoting Connick, 461 U.S. at 150).
A report of sexual harassment by a government official can constitute speech on a matter of public concern. In Azzaro, the plaintiff (a county employee) reported to her supervisor and to the County Director of Administration “an incident of sexual harassment by an assistant to the [County] Commissioner which occurred in the Commissioner's office during the course of an appointment Azzaro had made, in her capacity as the spouse of an employee, to plead for her husband's job.” Azzaro, 110 F.3d at 978. Reasoning that the plaintiff’s reports “brought to light actual wrongdoing on the part of one exercising public authority that would be relevant to the electorate's evaluation of the performance of the office of an elected official,” the en banc majority held that the reports “should be regarded as a matter of public concern unless something in their form or context deprived them of their value to the process of self-governance.” Id. at 978-79. Under Azzaro, some reports of sexual harassment by a government employee clearly will constitute speech on matters of public concern; but it may not be the case that all such speech meets that test. See id. at 978 n.4 (suggesting that in “a situation in which a public employee has filed a complaint about an isolated incident of what he or she perceived to be inappropriate conduct on the part of a non-supervisory co-worker,” the report “would presumably be less important to an evaluation of the performance of the public office involved than the situation now before us”); see id. at 981 (Becker, J., joined by Scirica, Roth & Alito, JJ., concurring) (“It seems to me that there will be many complaints of sexual harassment, about more aggravated conduct than that described in footnote 4 of the opinion, which will not qualify as matters of public concern.”); see also Montone v. City of Jersey City, 709 F.3d 181, 194-95 (3d Cir. 2013) (holding that plaintiff’s “speech involved a matter of public concern,” even though “no elected figure [wa]s involved,” where there were “at least three separate instances of alleged sexual harassment... and the inappropriate conduct was not directed solely at Montone”).
If the court concludes that the plaintiff’s speech addressed a matter of public concern and that the plaintiff was not speaking pursuant to his or her job responsibilities, then the court must proceed to balance “the public employee's interest in speaking about a matter of public concern and the value to the community of her being free to speak on such matters”45 against “the government's interest as an employer in promoting the efficiency of the services it performs through its employees.”46 Id. at 980 (citing, inter alia, Pickering v. Board of Educ., 391 U.S. 563 (1968)); see also Brennan v. Norton, 350 F.3d 399, 413 (3d Cir. 2003) (explaining that the court should “consider the nature of the relationship between the employee and the employer as well as any disruption the employee's speech may cause, including the impact of the speech on the employer's ability to maintain discipline and relationships in the work place”), abrogated on other grounds by Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011).47 In applying the Pickering balancing test, the district court should be aware that “[s]ome disruption is almost certainly inevitable,” and that it “is against [Third Circuit] precedent to find against an employee where the disruption ‘was primarily the result, not of the plaintiff's exercise of speech, but of his superiors’ attempts to suppress it.’” Dougherty v. School Dist. of Philadelphia, 772 F.3d 979, 992 (3d Cir. 2014) (quoting Czurlanis v. Albanese, 721 F.2d 98, 107 (3d Cir. 1983)). The reaction of parents and students to a teacher’s derogatory blog posts about her students, however, is appropriately considered in deciding that the disruptive effect of the speech outweighed any competing interests. Munroe v. Central Bucks School District, 805 F.3d 454 (3d Cir. 2015).
The adverse action must be more than de minimis. See McKee v. Hart, 436 F.3d 165,170 (3d Cir. 2006) (“[N]ot every critical comment–or series of comments–made by an employer to an employee provides a basis for a colorable allegation that the employee has been deprived of his or her constitutional rights.”). However, “a plaintiff may be able to establish liability under § 1983 based upon a continuing course of conduct even though some or all of the conduct complained of would be de minimis by itself or if viewed in isolation.” Brennan v. Norton, 350 F.3d 399, 419 n.16 (3d Cir. 2003), abrogated on other grounds by Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011); see also Suppan v. Dadonna, 203 F.3d 228, 234 (3d Cir. 2000) (“[A] trier of fact could determine that a violation of the First Amendment occurred at the time of the rankings on the promotion lists and that some relief is appropriate even if plaintiffs cannot prove a causal connection between the rankings and the failure to promote.”). In cases where the parties dispute whether an actionable adverse action occurred, the factfinder must determine whether “the alleged retaliatory conduct was sufficient ‘to deter a person of ordinary firmness’ from exercising his First Amendment rights.” Suppan, 203 F.3d at 235 (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)); see also O'Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006); Thomas v. Independence Tp., 463 F.3d 285, 296 (3d Cir. 2006); Werkheiser v. Pocono Twp., 780 F.3d 172 (3d Cir. 2015) (discussing but not resolving what kinds of political retaliation by elected officials against their peers violate the First Amendment).49
“[F]or protected conduct to be a substantial or motivating factor in a decision, the decisionmakers must be aware of the protected conduct.” Ambrose v. Township of Robinson, Pa., 303 F.3d 488, 493 (3d Cir. 2002). If the plaintiff shows that the decisionmaker was aware of the protected conduct, then the plaintiff may use the temporal proximity between that knowledge and the adverse employment action to argue causation. “[A] suggestive temporal proximity between the protected activity and the alleged retaliatory action can be probative of causation,” Thomas, 351 F.3d at 114, but “[e]ven if timing alone could ever be sufficient to establish a causal link,... the timing of the alleged retaliatory action must be 'unusually suggestive' of retaliatory motive before a causal link will be inferred." Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003) (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)).50
In Lauren W. v. DeFlaminis, 480 F.3d 259 (3d Cir. 2007) — a case involving retaliation claims under both the First Amendment and the Rehabilitation Act — the Court of Appeals noted three options for proving causation:
To establish the requisite causal connection a plaintiff usually must prove either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.... In the absence of that proof the plaintiff must show [(3)] that from the "evidence gleaned from the record as a whole" the trier of the fact should infer causation.
