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7 PJI 4 | Third Circuit (US)
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The First Amendment to the United States Constitution gives persons a right to [freedom of speech] [petition the Government for a redress of grievances].28 Government employees have a limited right to engage in free speech on matters of public importance, and government employers must not retaliate against their employees for exercising this right. In this case [plaintiff] claims that [describe alleged protected activity], and that [defendant] retaliated against [plaintiff] by [describe alleged retaliation].29

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:

First: [Defendant] [failed to promote] [terminated] [constructively discharged]30 [plaintiff]; and

Second: [Plaintiff’s] protected activity was a motivating factor in [defendant's] decision.

In showing that [plaintiff's] protected activity was a motivating factor for [defendant’s] action, [plaintiff] is not required to prove that [his/her] protected activity was the sole motivation or even the primary motivation for [defendant's] decision. [Plaintiff] need only prove that [his/her] protected activity played a motivating part in [defendant's] decision even though other factors may also have motivated [defendant]. [Plaintiff] could make this showing in a number of ways. The timing of events can be relevant, for example if [defendant’s] action followed very shortly after [defendant] became aware of [plaintiff’s] protected activity. However, a more extended passage of time does not necessarily rule out a finding that [plaintiff’s] protected activity was a motivating factor. For instance, you may also consider any antagonism shown toward [plaintiff] or any change in demeanor toward [plaintiff].

[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.

A plaintiff may have a valid Title VII retaliation claim but not a valid First Amendment retaliation claim. See, e.g., Zelinski v. Pennsylvania State Police, 108 Fed. Appx. 700, 707-08 (3d Cir. 2004) (non-precedential opinion) (vacating grant of summary judgment dismissing Title VII retaliation claim, but affirming grant of summary judgment dismissing First Amendment retaliation claim). The disparity arises because the definitions of ‘protected activity’ differ depending on whether the claim is asserted under Title VII or under the First Amendment.

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.”).

First element: protected activity.

To be protected under the First Amendment, speech by a government employee “must be on a matter of public concern, and the employee's interest in expressing herself on this matter must not be outweighed by any injury the speech could cause to ‘“the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”’” Waters v. Churchill, 511 U.S. 661, 668 (1994) (plurality opinion) (quoting Connick v. Myers, 461 U.S. 138, 142 (1983) (quoting Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968))).35

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).

Second element: substantial factor.48

The plaintiff must show a “causal link” between the protected speech and the adverse employment action. See, e.g., Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003); see also Azzaro, 110 F.3d at 981 (reversing summary judgment dismissing First Amendment retaliation claim, because there existed “a material dispute of fact as to whether [plaintiff’s] reports were a motivating factor in the discharge decision”).

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. Id. at 267.51

Affirmative defense: same decision.

As noted above, the second element requires the plaintiff to demonstrate that “the protected activity was a substantial or motivating factor for the adverse action.” Fultz v. Dunn, 165 F.3d 215, 218 (3d Cir. 1998). If the plaintiff makes this showing, “the defendant can escape liability by showing that... he would have taken the same action absent the protected activity.” Fultz, 165 F.3d at 218.52 The defendant has the burden of proof on this third prong of the test. See Hill, 411 F.3d at 126 n.11 (“[T]he defendant bears the burdens of proof and persuasion on the third prong.”).53 In other words, “the defendant[], in proving ‘same decision,’ must prove that the protected conduct was not the but-for cause.” Suppan v. Dadonna, 203 F.3d 228, 236 (3d Cir. 2000).

(Last Updated July 2019)


28 As noted in the Comment, a First Amendment retaliation claim can be grounded on the Petition Clause instead of, or in addition to, the Free Speech Clause.
29 The instruction given in the text assumes that there are no material disputes of historical fact that must be resolved before the court determines whether the plaintiff engaged in protected activity. Such questions may include, for example, what the plaintiff said, and in what context; and whether the defendant believed that the plaintiff had made the relevant statement. (Whether the defendant actually believed a certain set of facts concerning the plaintiff’s protected activity appears to be a fact question for the jury. However, the reasonableness of the defendant’s belief seems to be a question of law for the court. See Comment.)

If such factual disputes exist, it may be necessary to segment the jury’s deliberations, as follows:

First, the court could instruct the jury on the factual questions relevant to the protected-activity determination. E.g.: It is your task to resolve the following disputes of fact: [Describe factual disputes that must be resolved in order for the court to determine whether plaintiff engaged in protected activity.] The verdict form includes places where you will write your answers to these questions.

Once the jury returns its answers concerning those fact questions, the court can determine the protected-activity question and can instruct the jury on the remaining prongs of the claim (as shown in the text).

Thus instructed, the jury can resume its deliberations and determine the claim.

If the plaintiff alleges that the defendant mistakenly believed that the plaintiff engaged in protected activity, it may be necessary to alter this instruction to ask the jury to determine whether the employer believed that the plaintiff was engaged in particular activity and instruct the jury whether such activity would be protected by the First Amendment.

30 The examples given in the text do not exhaust the range of possible acts that can give rise to a retaliation claim; but the acts must, in the aggregate, be more than de minimis. See Comment.
31 The Committee uses the term “affirmative defense” to refer to the burden of proof, and takes no position on the burden of pleading the same-decision defense.
32 See also Springer v. Henry, 435 F.3d 268, 275 (3d Cir. 2006).
33 Alternatively, the employee may prove that the employer made a factual mistake and believed that the employee had engaged in activity protected by the First Amendment. Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016).
34 Cf. Fulton v. City of Philadelphia, 922 F.3d 140, 162 (3d Cir. 2019) (suggesting that a litigant who is challenging a regulation of its conduct cannot transform that challenge into a retaliation claim simply because some speech is involved in the conduct or because it verbally acknowledges that it engages in that conduct).
35 It should be noted that the First Amendment right to petition can provide an alternative means for an employee to establish the first element of the retaliation test. “[R]etaliation by a government employer for a public employee's exercise of the right of access to the courts may implicate the protections of the Petition Clause.” Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2494 (2011). In Guarnieri, the Court held that Petition Clause retaliation claims require the plaintiff to show that the petition was on a matter of public concern, see id. at 2491-92, and the Court stated that the same basic framework that governs Speech Clause retaliation claims also governs Petition Clause retaliation claims:
If a public employee petitions as an employee on a matter of purely private concern, the employee's First Amendment interest must give way, as it does in speech cases.... When a public employee petitions as a citizen on a matter of public concern, the employee's First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. Id. at 2500.

A public employee may also have a retaliation claim based on the First Amendment right to freedom of association. See, e.g., Heffernan v. Paterson, 136 S. Ct. 1412 (2016). If an association claim is based on union membership, the public concern requirement is “no obstacle” because “mere membership in a public union is always a matter of public concern.” Palardy v. Twp. of Millburn, 906 F.3d 76, 81 (3d Cir. 2018). So, too, the private-citizen requirement of Garcetti does not apply to “pure associational claims based on union membership.” Id. at 83. See also Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 756 (3d Cir. 2019) (noting but not deciding whether the Pickering balance test applies to association claims).

If the speech happened after the plaintiff’s public employment ceased, “the public-employment framework” of Pickering and Garcetti does not apply because once public employment ended, the government employer “did not have a protectable interest in controlling [her] speech.” Conard v. Pennsylvania State Police, 902 F.3d 178, 182 (3d Cir. 2018).

36 The Supreme Court has noted “some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence.” Garcetti v. Ceballos, 126 S. Ct. 1951, 1962 (2006). In Garcetti, which involved a deputy district attorney who sued the County of Los Angeles, and also certain of his supervisors in the Los Angeles District Attorney's Office, the Court found it unnecessary to determine whether its analysis in Garcetti “would apply in the same manner to a case involving speech related to scholarship or teaching.” Id. Cf. Borden v. School Dist. of Tp. of East Brunswick, 523 F.3d 153, 171 n.13 (3d Cir. 2008) (“If Garcetti applied to this case, Borden's speech would not be protected as it was made pursuant to his official duties as a coach of the EBHS football team and not as an ordinary citizen. However, even if Garcetti does not apply in the educational context, Borden's conduct is not on a matter of public concern for the reasons just described.”).

The Court of Appeals has noted that “[t]he full implications of the Supreme Court's statements in Garcetti regarding ‘speech related to scholarship or teaching’ are not clear.... As a result, federal circuit courts differ over whether (and, if so, when) to apply Garcetti's official-duty test to academic instructors.” Gorum v. Sessoms, 561 F.3d 179, 186 n.6 (3d Cir. 2009). The plaintiff in Gorum was dismissed from his tenured position as a university professor; the plaintiff, challenging the defendant’s explanation that he was dismissed for doctoring student grades, asserted instead that the dismissal was retaliatory. On appeal the plaintiff pointed to his service as an advisor to a student in connection with a disciplinary proceeding and his involvement in the rescission of an invitation to the university president to speak at a fraternity prayer breakfast. The Gorum court held that neither of these incidents involved citizen speech; rather, under Garcetti, these activities were undertaken pursuant to the plaintiff’s duties. The court noted: “In determining that Gorum did not speak as a citizen.... we apply the official duty test because Gorum's actions so clearly were not ‘speech related to scholarship or teaching,’... and because we believe that such a determination here does not ‘imperil First Amendment protection of academic freedom in public colleges and universities.’” Gorum, 561 F.3d at 186 (quoting Garcetti, 547 U.S. at 425, and Justice Souter’s dissent in Garcetti, id. at 438).

In Ali v. Woodbridge Twp. Sch. Dist., 957 F.3d 174 (3d Cir. 2020), the Court of Appeals held that “[t]eachers do not have a protected First Amendment right to decide the content of their lessons or how the material should be presented to their students.” Id. at 184. It relied on cases that predated Garcetti. Id. at 184 (citing Edwards v. Cal. Univ. of Pa., 156 F.3d 488, 491 (3d Cir. 1998) (Alito, J.) (holding that “a public university professor does not have a First Amendment right to decide what will be taught in the classroom”) and Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172 (3d Cir. 1990)).

37 The Court has not “articulate[d] a comprehensive framework for defining the scope of an employee's duties,” but it has stressed that “[t]he proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes.” Garcetti, 126 S. Ct. at 1961-62.
38 The Court of Appeals has summed up the post-Garcetti test thus:
A public employee's statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have "an adequate justification for treating the employee differently from any other member of the general public" as a result of the statement he made.... A public employee does not speak "as a citizen" when he makes a statement "pursuant to [his] official duties." Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006). In Hill, the Court distinguished between retaliation based upon the plaintiff borough manager’s reporting of harassing behavior and retaliation based upon the plaintiff’s advocacy of a telecommunications project. Retaliation based on the reporting was not actionable, because reporting harassment formed part of the borough manager’s duties. However, the claim of retaliation based on the plaintiff’s advocacy of the telecommunications project should not have been dismissed at the 12(b)(6) stage, because the complaint could be read to allege that the plaintiff was speaking as a citizen rather than as part of his official duties. See id. at 242.

For another decision applying Garcetti, see Foraker v. Chaffinch, 501 F.3d 231, 241-42 (3d Cir. 2007) (“Reporting problems at the firing range was among the tasks that Price and Warren were paid to perform. Their positions in the DSP required them to report up the chain of command, and their positions as instructors who regularly used and performed light maintenance on the equipment at the range on a daily basis put any environmental concerns there within the scope of their routine operations.”), abrogated on other grounds by Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011); see also Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231 (3d Cir. 2016) (police officers “were not speaking as citizens when they wrote on the counseling forms. Citizens do not complete internal police counseling forms. Rather, completing counseling forms as part of the police disciplinary process falls under officers’ official duties.”); Foraker, 501 F.3d at 250 (Pollak, D.J., concurring) (“Less clear is that the statements Price and Warren made to the State Auditor — statements ordered to be made to a high state official beyond the chain of state police command — were part of their employment duties.... But, given the statements Price and Warren had made to their senior officers, it was not clear error for the District Court to find that the directive to Price and Warren to aid the State Auditor's inquiry broadened the scope of their employment duties.”).

39 The court of appeals previously held that if the plaintiff did not in fact engage in constitutionally protected activity, but the employer retaliates in the mistaken belief that the plaintiff did engage in such activity, the plaintiff does not have a First Amendment retaliation claim. Heffernan v. Paterson, 777 F.3d 147 (3d Cir. 2015); Ambrose v. Township of Robinson, Pa., 303 F.3d 488, 495 (3d Cir. 2002); Fogarty v. Boles, 121 F.3d 886, 890 (3d Cir. 1997). But the Supreme Court reversed the court of appeals decision in Heffernan. It held, “When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. §1983 — even if, as here, the employer makes a factual mistake about the employee’s behavior.” Heffernan v. City of Paterson, 136 S. Ct. 1412, 1418 (2016). Relying on Waters v. Churchill, 511 U.S. 661 (1994), and the principle that “what is sauce for the goose is sauce for the gander,” the Court concluded that, “as in Waters, the government’s reason for demoting Heffernan is what counts here.” Heffernan, 136 S. Ct. at 1418. The decisions in Ambrose and Fogarty should be read in light of Heffernan.
40 As Justice Souter explained:
Though Justice O'CONNOR's opinion speaks for just four Members of the Court, the reasonableness test it sets out is clearly the one that lower courts should apply. A majority of the Court agrees that employers whose conduct survives the plurality's reasonableness test cannot be held constitutionally liable (assuming the absence of pretext), see ante, at 1890-1891 (plurality opinion); post, at 1893-1896 (SCALIA, J., concurring in judgment); and a majority (though a different one) is of the view that employers whose conduct fails the plurality's reasonableness test have violated the Free Speech Clause, see ante, at 1888-1890 (plurality opinion); post, at 1898-1900 (STEVENS, J., dissenting); see also post, at 1899, n. 4 (STEVENS, J., dissenting) ("Justice O'CONNOR appropriately rejects [Justice SCALIA's] position, at least for those instances in which the employer unreasonably believes an incorrect report concerning speech that was in fact protected and disciplines an employee based upon that misunderstanding. I, of course, agree with Justice O'CONNOR that discipline in such circumstances violates the First Amendment"). Waters, 511 U.S. at 685 (Souter, J., concurring).

41 The plurality framed the question thus: “Should the court apply the Connick test to the speech as the government employer found it to be, or should it ask the jury to determine the facts for itself?” Waters, 511 U.S. at 668. As noted in the text, the plurality’s answer is that the court should apply the Connick test to the speech as the employer reasonably found it to be; but the plurality did not explain who should determine any disputes of material fact as to what the employer actually believed.
42 The Court of Appeals “ha[s] often noted that the first prong of the First Amendment retaliation test presents questions of law for the court.” Hill, 411 F.3d at 127. See also Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir. 2004) (“[T]he first factor is a question of law.”); Baldassare v. State of N.J., 250 F.3d 188, 195 (3d Cir. 2001) (stating that whether speech is on matter of public concern and whether Pickering balancing test is met “are questions of law for the court”); McGreevy v. Stroup, 413 F.3d 359, 364 (3d Cir. 2005) (same); Green v. Philadelphia Housing Authority, 105 F.3d 882, 885 (3d Cir. 1997) (“Determining whether Green's appearance is protected activity under Pickering is an issue of law for the court to decide.”). Such statements, however, appear to focus on the point that application of the Connell/Pickering tests is a matter of law for the court – not on the question of who should determine any underlying disputes of historical fact.
43 The underlying historical facts, if disputed, would presumably present a jury question.
44 See, e.g., Borden v. School Dist. of Tp. of East Brunswick, 523 F.3d 153, 171 (3d Cir. 2008) (holding that football coach’s bowing his head and kneeling during student prayer “occur in private settings, namely at an invitation-only dinner and in a closed locker room,” and thus that the coach’s expressive conduct did not concern “matters of public concern triggering protection of his right, as a public employee, to freedom of speech”); Gorum v. Sessoms, 561 F.3d 179, 187 (3d Cir. 2009) (professor’s assistance to student in connection with disciplinary proceeding was not speech on matter of public concern but, rather, “related to the personal grievance of one student”).

A statement that, taken alone, concerns a matter of public concern might not receive First Amendment protection if the context of the statement leads the court to conclude that the government’s interest outweighs the public value of the statement. For example, in Miller v. Clinton County, 544 F.3d 542 (3d Cir. 2008), a state court judge fired a probation officer after the officer wrote a letter to the judge criticizing the way the probation office was run. That criticism clearly addressed a matter of public concern. But the court, focusing on the fact that the bulk of the plaintiff’s letter asserted “private grievances” concerning the plaintiff’s supervisor and working conditions, held that “[t]he personal context in which Miller's letter arose, in addition to the tangential connection between the issues of public concern and the overall thrust of the letter so minimizes any public concern in the subject of her expression as to tip the First Amendment balance in favor of her employer.” Miller, 544 F.3d at 550-51. The court noted, however, that it did not “suggest that speech which is otherwise public in nature can be sanctioned merely because it arises in the context of personal dissatisfaction or a personal grievance.... It is not the grinding of the proverbial axe that removes the protection of the First Amendment, it is the private nature of the employee's speech.” Id. at 551 n.6. See Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231 (3d Cir. 2016) (disputed police policy “directly affects how police officers interact with the public, especially with residents of crime infested communities,” and thus “is not only a matter of public interest, it has become a matter of utmost importance”); see also DeRitis v. McGarrigle, 861 F.3d 444, 456 (3d Cir. 2017) (holding that out of court statements to other lawyers made by a public defender circulating a rumor that he had been demoted for taking too many cases to trial did not involve matters of public concern because he was addressing only his own employment concerns, but that statements to the County Solicitor and the chairman of the County Council did address matters of public concern by raising concerns about the rights of his clients).

45 See also Baldassare v. State of N.J., 250 F.3d 188, 198 (3d Cir. 2001) (“[T]he public's interest in exposing potential wrongdoing by public employees is especially powerful.”).
46 In a 1994 decision, the Court of Appeals indicated that such balancing should occur only if the employer concedes that the speech played a factor in the dismissal:
[A] public employer may dismiss an employee for speech addressing a matter of public concern if the state's interest, as an employer, in promoting the efficiency of its operations outweighs the employee's interest, as a citizen, in commenting upon matters of public concern. This balancing test comes into play only if the public employer concedes that it dismissed an employee because of the employee's protected speech but contends that it was justified in doing so. Rutgers denies that it dismissed San Filippo for his protected activities; accordingly, the balancing test has no application in the case at bar. San Filippo v. Bongiovanni, 30 F.3d 424, 434 n.11 (3d Cir. 1994), abrogated on other grounds by Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011).

However, in at least one subsequent case the Court of Appeals performed the balancing analysis even though the defendant disputed whether the speech was a motivating factor. See Azzaro, 110 F.3d at 980 (performing balancing analysis); id. at 981 (finding “a material dispute of fact as to whether [plaintiff’s] reports were a motivating factor in the discharge decision”).

Another permutation arises if the plaintiff-employee claims that the adverse action was motivated by a particular speech incident, and the defendant-employer responds that the adverse action was instead motivated by another speech incident. For example, in Reilly v. City of Atlantic City, 532 F.3d 216 (3d Cir. 2008), a hearing officer had found that the plaintiff police officer had violated departmental rules by, inter alia, making inappropriate comments about women in the presence of subordinate officers. See id. at 221. The police officer sued, asserting that the discipline to which he was subjected (based on this finding) was harsher than it would otherwise have been because of his participation (including trial testimony) in a prior police investigation. See id. at 219-20. “Where a plaintiff claims that the stated grounds for his/her discipline were a pretext for the discipline imposed, the court does not apply the Pickering balancing test solely to the speech that defendants claim motivated the disciplinary action... such as Reilly's violation of department regulations here. Rather, the court considers all of the speech that the plaintiff alleges is protected... such as Reilly's testimony at the Munoz trial.” Reilly, 532 F.3d at 232.

47 In Azzaro, noting the “substantial public interest in Azzaro’s revelations” and the “negligible” nature of any countervailing government interest, the Court of Appeals held that “the Pickering balance falls in Azzaro's favor.” Azzaro, 110 F.3d at 980. Applying the Pickering balancing test in DeRitis v. McGarrigle, 861 F.3d 444 (3d Cir. 2017), the court concluded that the plaintiff’s “interest in disseminating ‘fourth-person hearsay,’ gleaned from after-work ‘gossip,’ pales in comparison to the ‘potential disruption’ it could have caused to the Public Defender’s Office.” Id. at 458 (citations and alterations omitted).
48 The “substantial factor” and “same decision” inquiries “present[] question[s] of fact for the jury.” McGreevy v. Stroup, 413 F.3d 359, 364 (3d Cir. 2005).
49 In Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007), the Court of Appeals listed the ordinary-firmness standard as an element of the claim, stating that the plaintiff must show “(2) that defendants' retaliatory action was sufficient to deter a person of ordinary firmness from exercising his or her rights.” See also Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011) (holding that the alleged retaliation — a misconduct report (charging the plaintiff inmate with lying about an underlying incident) that was later dismissed — “does not rise to the level of ‘adverse action’” because it did not meet the ordinary-firmness standard).
50 Compare San Filippo, 30 F.3d at 444 (“Although a dismissal that occurs years after protected activity might not ordinarily support an inference of retaliation, where, as here, a plaintiff engages in subsequent protected activity and the plaintiff is dismissed shortly after the final episode of such protected activity, a fact-finder may reasonably infer that it was the aggregate of the protected activities that led to retaliatory dismissal.”).
51 The Lauren W. court noted that “[a] court must be diligent in enforcing these causation requirements because otherwise a public actor cognizant of the possibility that litigation might be filed against him, particularly in his individual capacity, could be chilled from taking action that he deemed appropriate and, in fact, was appropriate.” Lauren W., 480 F.3d at 267.
52 “‘[S]ubstantial factor" does not mean ‘dominant’ or ‘primary’ factor.... Thus, even if a plaintiff shows that activity protected by the First Amendment was a ‘substantial factor’ in her termination, the defendant may show that some other factor unrelated to the protected activity was the but-for cause of the termination.” Hill, 411 F.3d at 126 n.11.
53 Thus, the Court of Appeals has termed the same-decision assertion an “affirmative defense.” Nicholas v. Pennsylvania State University, 227 F.3d 133, 144 (3d Cir. 2000).

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