On Appeal from the United States District Court for the Eastern District of Pennsylvania
(D.C. Civil Action No. 94-cv-06001)
BEFORE: SLOVITER, Chief Judge, and GREENBERG and ROTH, Circuit Judges
GREENBERG, Circuit Judge.
Appellee Sisinia Pro worked in the office of the Clerk of the Orphans' Court, under the general direction of Ronald Donatucci, Register of Wills of Philadelphia County. In October 1993, Donatucci's wife subpoenaed Pro to testify in her divorce action against Donatucci. Pro duly appeared pursuant to the subpoena, but was not called to testify. Donatucci was present in court and saw Pro there. Shortly thereafter, Donatucci sent Pro a letter terminating her employment.
Pro brought suit against Donatucci under 42 U.S.C. Section(s) 1983, claiming that he fired her in retaliation for activity protected by the First Amendment, that is, her appearance as a potential witness at the divorce proceeding. The district court denied Donatucci's motion for summary judgment in his individual capacity, which Donatucci predicated on a claim of qualified immunity. Donatucci then appealed. The district court had jurisdiction under 28 U.S.C. Section(s) 1331 and 1343 and we have jurisdiction under 28 U.S.C. Section(s) 1291 based upon the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817 (1985); In re City of Philadelphia Litig., 49 F.3d 945, 956 (3d Cir.), cert. denied, 116 S.Ct. 176 (1995).
Our review of the district court's denial of the motion for summary judgment is plenary. Bieregu v. Reno, 59 F.3d 1445, 1449 (3d Cir. 1995); In re City of Philadelphia Litig., 49 F.3d at 960. Moreover, we have plenary review over its denial of qualified immunity, as it is an issue of law. In re City of Philadelphia Litig., 49 F.3d at 960. Of course, we will resolve all factual doubts and draw all reasonable inferences in favor of Pro, the nonmoving party. Bieregu, 59 F.3d at 1449.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Donatucci became Register of Wills of Philadelphia County in 1979 and Pro, who had been with him in his private law practice, came with him to be his secretary. Pro worked at that position for one year and then moved to the office of the Clerk of the Orphans' Court. The offices of the Orphans' Court and the Register of Wills overlap in their functions and staff, and therefore Pro remained under Donatucci's control even after she changed jobs.
In October 1993, Donatucci's wife subpoenaed Pro to testify in her divorce action against Donatucci. Pro duly appeared pursuant to the subpoena, but was not called to testify. The subject of her expected testimony, though, concerned an alleged extramarital affair involving Donatucci. A few weeks after Donatucci saw Pro at the divorce proceedings, he hired a new employee to work in the office of the Clerk of the Orphan's Court and that employee's assignments include work that Pro performed. Shortly thereafter, on January 3, 1994, Pro received a short letter from Donatucci, which informed her:
As part of an on-going department reorganization, your position as Legal Secretary II will be eliminated as of Monday, January 17, 1994.
We have appreciated your many years of service and I wish you well in the future.
Pro v. Donatucci, No. 94-6001, at 2 (E.D. Pa. Sept. 6, 1995). Pro believed that Donatucci's explanation for her termination was a pretext and that he fired her because she was ready to testify at his divorce proceeding.
Pro brought suit against Donatucci, alleging that he fired her in retaliation for activity protected by the First Amendment -- that is, her appearance as a potential witness at the divorce proceeding. Although her complaint was ambiguous, the district court held that she sued Donatucci in both his individual and official capacities. Pro v. Donatucci, No. 94-6001, at 2 (E.D. Pa. Sept. 6, 1995). *fn1 On July 14, 1995, Donatucci moved for summary judgment in his official capacity (apparently under the impression that he had not been sued in his individual capacity), arguing, in essence, that Pro could not state a claim because she had not testified at the divorce proceeding. On September 6, 1995, the court denied Donatucci's motion, holding "[w]e can see no practical distinction between retaliation on the basis of a public employee's actual testimony and the retaliation that Pro alleges." Pro v. Donatucci, No. 94-6001, at 4 n.3 (E.D. Pa. Sept. 6, 1995) (order denying defendant's summary judgment motion). Donatucci filed a motion for reconsideration and to amend the order so as to grant summary judgment to him in his individual capacity on the basis of qualified immunity. *fn2 The district court denied the motion on September 18, 1995, and Donatucci filed a notice of appeal on the same day. Donatucci contends that the district court erred in denying him summary judgment on the basis of qualified immunity.
The determination of whether a public official is entitled to qualified immunity in a civil rights action against him involves balancing "the important policy of compensating individuals for deprivation of their rights against `the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.'" In re City of Philadelphia Litig., 49 F.3d at 960 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 2732 (1982)). In making this balance, as we recently noted in In re City of Philadelphia Litig., "courts recognize that officials often must `act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office.'" Id. at 961 (quoting Scheuer v. Rhodes, 416 U.S. 232, 246, 94 S.Ct. 1683, 1691 (1974)). Public officials thus are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738. While this case does not involve the concerns about swift action to which we alluded in In re City of Philadelphia Litig., nevertheless the case implicates principles of qualified immunity.
The focus of qualified immunity is on the "objective legal reasonableness" of the actions taken by the public official. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038 (1987). As the Supreme Court instructed in Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793 (1991), before a court even addresses a claim of qualified immunity, however, it first should determine whether a plaintiff has alleged "a violation of a constitutional right at all." "Deciding `this purely legal question permits the courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits.'" In re City of Philadelphia Litig., 49 F.3d at 961 (quoting Siegert, 500 U.S. at 232, 111 S.Ct. at 1793).
Further, as we reiterated in In re City of Philadelphia Litig., for a court to impose liability upon an official, the right allegedly violated "`must have been "clearly established" in a more particularized, and hence more relevant, sense.'" Id. at 961 (quoting Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. at 3039). "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. at 3039.
Therefore, in this case, we must consider whether the particular constitutional right asserted, if it existed at all, was clearly established at the time Donatucci fired Pro. Acierno v. Cloutier, 40 F.3d 597, 606 (3d Cir. 1994) (in banc). As we summarized in In re City of Philadelphia Litig.:
If the law is not established clearly when an official acts, he is entitled to qualified immunity because he 'could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to "know" that the law forbade conduct not previously identified as unlawful.' . . . On the other hand, if the law was established clearly, the official still may obtain qualified immunity if he claims 'extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard.' Id. at 961 (citations omitted).
B. Pro's First Amendment Rights
Pro's section 1983 claim is that Donatucci retaliated against her when she engaged in speech activity protected by the First Amendment. Donatucci, however, argues that he could not have violated Pro's rights under the First Amendment because she did not engage in speech entitled to First Amendment protection. Thus, he argues, since no constitutional violation occurred, he was entitled to summary judgment. Consequently, we must decide whether Pro has alleged a constitutional violation.
As we recently stated in Watters v. City of Philadelphia, 55 F.3d 886 (3d Cir. 1995), the Supreme Court has made clear that "it is essential that public employees be able to speak out freely on questions of public concern without fear of retaliatory dismissal." Id. at 891 (citing Pickering v. Board of Educ., 391 U.S. 563, 572, 88 S.Ct. 1731, 1736 (1968)). In a line of cases beginning in the 1960's, the Court developed the principle that the government "cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687 (1983). Therefore, "[j]udicial vigilance is required to ensure that public employers do not use their authority to silence discourse on matters of public concern simply because they disagree with the content of the employee's speech." Watters, 555 F.3d at 891 (citing Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 2896 (1987)).
On the other hand, the Court has recognized that "the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. In determining whether the speech of an employee deserves constitutional protection, we therefore must strike a "balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. at 568, 88 S.Ct. at 1734-35.
As noted in Watters, we analyze a public employee's claim of retaliation for engaging in protected activity under a three-step process. 55 F.3d at 892. First, the plaintiff must show that the activity in question was protected. Id. (citing Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993); Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir. 1983)). To deserve protection, "the speech must be on a matter of public concern, and the employee's interest in expression 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." Id. (citing Waters v. Churchill, 114 S.Ct. 1878, 1884 (1994) (plurality opinion)).
Second, the plaintiff must show that the protected activity was a substantial or motivating factor in the alleged retaliatory action. Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576 (1977)). Finally, the employer can establish that it would have taken the adverse employment action regardless of whether the employee had engaged in protected conduct. Id. These latter two questions are factual, and therefore for purposes of this appeal we resolve them in Pro's favor. Thus, the threshold issue before us in ...