January 2015 FBA Labor and Employment Law Third Circuit Update

Posted on Monday, February 9th, 2015.

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Stephen E. Trimboli, Esq.

Trimboli & Prusinowski, L.L.C.


The District Court engaged in improper fact-finding, and applied the incorrect legal standard, in dismissing a public employees First Amendment retaliation claim.


Albert Flora, Jr. v. County of Luzerne, et al., _F.3d_, 2015 WL 178640, C.A. 3, (Penna.), January 15, 2015, available at www2.ca3.uscourts.gov/opinarch/141854p-1.pdf


Albert Flora, Jr., served in the Public Defender’s Office in Luzerne County, Pennsylvania, from 1980 until 2013. He became First Public Defender in 1990, Acting Chief Public Defender in March 2010, and Chief Public Defender in June 2010. According to his complaint, his predecessor as Chief and he had struggled for years to obtain sufficient funding from the County to provide constitutionally adequate representation services for the clients of the Public Defender’s Office. When repeated efforts to obtain adequate funding from the County proved unsuccessful, and the Office’s inability to service its clients had reached an alleged “critical stage,” Flora decided to initiate a class action lawsuit seeking a writ of mandamus to compel the County to provide the Public Defender’s Office with adequate funding and resources, with three clients of the Public Defender’s Office serving as the lead plaintiffs. The lawsuit was successful.


Simultaneous with the funding litigation was the fallout from the so-called “Kids for Cash” scandal, in which two judges of the Luzerne County Court of Common Pleas had been found to have accepted kickbacks from for-profit juvenile detention facilities in exchange for sentencing unrepresented juvenile defendants to those facilities. In 2009, the Pennsylvania Supreme Court ordered the vacatur and expungement of thousands of convictions and consent decrees tainted by this scandal. But according to his complaint, in early 2013, Flora discovered that over 3,000 of these convictions and consent decrees had yet to be expunged. Flora reported this discovery to numerous bodies, including the Special Master that the Pennsylvania Supreme Court had appointed to oversee the matter. Flora asserted that he felt compelled to report the issue to the Special Master “as an officer of the court,” although doing so allegedly angered Luzerne’s County Manager.


Following the successful funding litigation, Luzerne County amended the Public Defender’s budget to create a new, full-time Chief Public Defender position. (The decision does not explain how this new, full-time position differed from the position Flora had held since June 2010). Flora and other candidates applied for the new, full-time position. In March 2013, another candidate was selected to fill the position. At that time, a County Commissioner informed the local media that Flora had become a “controversial candidate” because of the funding litigation. Flora was relieved of all duties as Chief Public Defender on April 17, 2013. He commenced litigation in District Court several days later, alleging that he had been terminated in retaliation for the funding litigation and for disclosing the County’s noncompliance with the expungement order. He asserted, inter alia, claims under 42 U.S.C. Sec. 1983 based on a theory of First Amendment retaliation.


On the defendants’ Rule 12(b)(6) motion, the District Court dismissed Flora’s complaint, concluding that he had failed to state a First Amendment claim because the filing of the state court action and the reporting of unfinished expungements were “related to” his official duties as Chief Public Defender, and were therefore not protected by the First Amendment. On appeal, the Third Circuit reversed.


To establish a First Amendment retaliation claim, a public employee must show that the First Amendment protects his speech, and that the speech was a substantial or motivating factor in what is alleged to be the employer’s retaliatory action. The sole issue on the Flora appeal was whether Flora’s alleged speech fell within the gambit of First Amendment protection. A public employee’s speech is protected by the First Amendment when: (1) the employee spoke as a citizen, (2) the speech 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 speech. The parties in Flora disputed only whether Flora has spoken as a citizen, or as an employee, when he initiated the funding litigation and reported the County’s noncompliance with the expungement order. Thus, under Garcetti v. Ceballos, 547 U.S. 410 (2006), and Lane v. Franks, _U.S._, 134 S.Ct. 2369 (2014), the case turned on whether these particular forms of speech fell within Flora’s ordinary job duties.


The Third Circuit first found that the District Court had improperly engaged in fact-finding in deciding the Rule 12(b)(6) motion rather than accepting Flora’s allegations as true. Whether particular speech falls within a particular plaintiff’s job duties is a mixed question of fact and law. The scope and content of a plaintiff’s job responsibilities is a question of fact, while the ultimate constitutional significance of those facts is a question of law. The pleadings in the case presented a factual dispute as to whether Flora’s job duties including making the statements at issue. The District Court failed to accept Flora’s factual allegations on this point as true, and thereby erred.


Further, the District Court applied an incorrect legal standard. The District Court deemed a public employee’s speech to be unprotected by the First Amendment when the speech was “related to” the public employee’s job duties. On appeal, the defendants similarly argued that any speech that relates to “special knowledge” or “experience” acquired through a public employee’s job would be unprotected. The Third Circuit rejected each theory as unduly restrictive. Citing Garcetti and Lane, the Third Circuit articulated the appropriate standard as whether the speech is itself ordinarily within the official duties of the public employee, not merely whether the speech concerns those duties. The First Amendment does not protect speech that is ordinarily within the public employee’s official duties. Speech that merely relates to the employee’s duties, or concerns information learned through public employment, enjoys First Amendment protection unless it is demonstrated that it also fell within the public employee’s ordinary official duties.


Applying the correct legal standard to the facts alleged by Flora, the Third Circuit concluded that Flora’s speech would enjoy First Amendment protection. “As claimed in his complaint, and as described in the statute creating the Public Defender, Flora’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…While certain statements in Flora’s complaint do suggest that the speech at issue bore some relation to his job duties and may have, indirectly, benefitted his clients, that does not bring the speech within the realm of his ordinary job duties.” The order of dismissal was vacated, and the matter was remanded for further proceedings.



The Third Circuit reaffirms that First Amendment retaliation claims premised on the erroneous perception that the claimant had engaged in speech or associational activities are not actionable.


Jeffrey J. Heffernan v. City of Paterson, et al., _F.3d_, 2015 WL 265514, C.A. 3, (N.J.), January 22, 2015, available at www2.ca3.uscourts.gov/opinarch/141610p-1.pdf


Heffernan is a Paterson, New Jersey, police officer who was allegedly demoted from an administrative detective position to a “walking post” after he was observed obtaining a mayoral candidate’s campaign sign for his mother. The candidate in question was a former police chief with whom Heffernan was friendly and whom Heffernan wanted to win. However, Heffernan neither worked on the candidate’s campaign nor was involved in the campaign, and because Heffernan did not live in Paterson, he could not even vote for the candidate. His sole involvement in the campaign was to pick up a campaign sign for his bedridden mother to replace a smaller one that had been stolen from her lawn. But a police officer assigned to the incumbent mayor’s security staff apparently observed Heffernan picking up the sign. Heffernan was confronted by his supervisors and “demoted” to a “walking post” because of what was taken to be his “overt involvement” in a political campaign.


Heffernan thereupon commenced litigation under 42 U.S.C. Sec. 1983, asserting claims of retaliatory demotion based on his exercise of free speech rights and free association rights. After a complicated procedural history – which included summary judgment determinations entered by two separate District Court judges who refused to allow the parties to file opposition briefs, and a jury verdict in Heffernan’s favor that was vacated when the District Court judge who presided over the trial “retroactively recused” himself due to a conflict of interest – summary judgment ultimately was entered in favor of the defendants. On appeal, the Third Circuit affirmed.


To make out a free speech claim, Heffernan was required to show that he spoke or engaged in expressive conduct on a matter of public concern. (“Expressive conduct” exists when there is an intention to convey a particularized message, and the likelihood is great that those who view the message would understand it). But because Heffernan disavowed any intention to engage in any expression in support of any candidate for mayor, he could not meet this requirement.


To make out a free expression claim, Heffernan was required to show that the he worked for a public agency in a position that does not require a political affiliation, that he maintained an affiliation with a political party, and that his political affiliation was a substantial or motivating factor in his demotion. But “Heffernan himself confirmed that regardless of what others may have perceived, he did not have any affiliation with the campaign other than the cursory contact necessary for him to pick up the sign for his mother.” Thus, Heffernan could not show that he maintained an affiliation with a political party.


Heffernan then argued that he could proceed on each claim under a “perceived support” theory, asserting that the defendants’ retaliation was “traceable to a genuine but incorrect or unfounded belief that the employee exercised a First Amendment right.” But the Third Circuit rejected the argument as being “squarely foreclosed by our own binding precedent, which holds that a free-speech retaliation claim is actionable under §1983 only where the adverse action at issue was prompted by an employee’s actual, rather than perceived, exercise of constitutional rights.” This Third Circuit precedent is in accord with that of the Fifth, Seventh and Ninth Circuits in the context of free speech.


Heffernan urged the Court to follow the Sixth Circuit decision in Dye v. Office of the Racing Comm’n, 702 F.3d 286 (6th Cir. 2012), which held that employer’s mere assumption of a political affiliation, whether founded or not, was sufficient for an employee’s free association (as opposed to free speech) First Amendment claim to proceed. The Third Circuit rejected Heffernan’s invitation. “{W}e have no reason to believe that the holding of Dye can be reconciled” with Third Circuit precedent. “But beyond that, we are not convinced that Dye provides any reason to depart from our established holding on this point.” The Dye Court purported to rely on First and Tenth Circuit precedent that involved adverse employment actions taken against employees who did not adopt a position on a local political issue. “Like the District Court, however, we read {those cases} as natural applications of the settled First Amendment principle that an employer may not discipline an employee based on the decision to remain politically neutral or silent … And indeed, the emphasis on that point … is, if anything, consistent with the {proposition} that a First Amendment retaliation claim under §1983 must rest upon the actual exercise of a particular constitutional right—whether it be the right to speak on a political issue, to associate with a particular party, or to not speak or associate with respect to political matters at all.” Because Heffernan “has not presented evidence that he was retaliated against for taking a stand of calculated neutrality,” he presented no cognizable First Amendment claim.

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