Green v. Philadelphia Housing Authority
| Decision Date | 13 March 1997 |
| Docket Number | No. 95-1908,95-1908 |
| Citation | 105 F.3d 882 |
| Parties | , 12 IER Cases 1562, 12 IER Cases 780 Donald GREEN, Appellant v. PHILADELPHIA HOUSING AUTHORITY; William Bergman, Interim Chief of Police; Daniel Rosenstein, Captain; John Cresci, Deputy Chief, in their Individual and Official Capacities as Officials of the Philadelphia Housing Authority. |
| Court | U.S. Court of Appeals — Third Circuit |
David Rudovsky (argued), Kairys, Rudovsky, Kalman, Epstein & Messing, Philadelphia, PA, for Appellant.
M. Kevin Hubbard (argued), Philadelphia Housing Authority, Philadelphia, PA, for Appellees.
Before: SCIRICA and ROTH, Circuit Judges and RESTANI, Judge, Court of International Trade. *
The Philadelphia Housing Authority transferred one of its police officers from special drug enforcement duty to regular patrol duty after his appearance at a bail hearing as a character witness for a reputed organized crime associate. The officer contends his transfer violated his free speech and association rights. At trial, after the close of all evidence, the district court granted defendants judgment as a matter of law under Fed.R.Civ.P. 50. We will affirm. 1
The plaintiff, Donald Green, has been employed as a police officer for the Philadelphia Housing Authority Police Department since November, 1991. In February, 1994, he was assigned to the Housing Authority Police Department's Drug Elimination Task Force ("DETF"). The DETF is a special unit that works together with other law enforcement agencies to combat illegal drug activity on Philadelphia Housing Authority property.
Several weeks after his assignment to the DETF, Green received a telephone call from Norman Keller, a friend of over twenty years, asking him to testify as a character witness on behalf of his son, Herbert Keller, at a bail hearing in federal court. Pursuant to Housing Authority Police Department regulations, Green made a written request to his immediate supervisor for permission to testify. Green received approval, provided that he testify during his lunch hour and in civilian clothing.
On March 23, 1994, Green appeared at the bail hearing, and Keller's attorney introduced him by name and occupation. The magistrate judge then proceeded to read the charges pending against Keller, which included organized crime activity in connection with the Stanfa crime organization. Green, who until that time was unaware of the organized crime charges, told Keller he could not be associated with the case and left the hearing without testifying.
Later that day, an unidentified law enforcement officer told the DETF Captain, defendant Daniel Rosenstein, that Green had appeared as a character witness for a member of the Stanfa crime organization. Rosenstein ordered Green removed from "street" work and told him there would be an investigation into his possible ties with organized crime. Rosenstein then sent a memorandum to the Housing Authority Police Department's Deputy Chief of Police, defendant John Cresci, recommending such an investigation and requesting Green's temporary transfer to regular patrol duty pending its outcome.
Subsequently, Cresci discussed the matter with the Housing Authority Police Department's Acting Chief of Police, defendant William Bergman. They decided a departmental investigation was unnecessary because it would duplicate the ongoing federal investigation of the Stanfa crime organization, and also because they did not believe Green was affiliated with organized crime. But Cresci and Bergman agreed with Rosenstein that Green should be transferred. On March 31, 1994, Green was formally transferred from the DETF to regular patrol duty.
Green's duties changed as a result of his transfer. As a DETF officer, Green participated in drug raids, made drug related arrests, and was generally responsible for enforcing the drug laws. After the transfer to regular patrol duty, Green was principally assigned to work out of a building's security booth. Green's salary was not reduced, although he claims his opportunities to work overtime (and consequently to earn overtime pay) decreased.
Green contends his transfer constituted unlawful retaliation for protected First Amendment activity. He brought this action against the Philadelphia Housing Authority, Rosenstein, Cresci and Bergman under: 42 U.S.C. § 1983 for violation of his First Amendment rights to freedom of speech and association; 42 U.S.C. § 1985(2) for violation of his right to be free from retaliation for his appearance as a witness in federal court; and the Pennsylvania Constitution for deprivation of reputation without due process of law.
At trial, defendants Bergman and Cresci testified they had no information or even suspicion Green was involved with organized crime, 2 but that his transfer was nonetheless justified. They explained Green was transferred "in case there was anything where [the Housing Authority Police Department] might be embarrassed ..." and because it "was right for the organization." (J.A. at 122, 164.) In their brief on appeal, defendants maintain they transferred Green out of their concern that the appearance of his ties to organized crime would "bring[ ] ... discredit upon the image of the [Housing Authority Police Department], [and] endanger[ ] the plaintiff." (Appellee's Br. at 10.) 3
At the close of evidence at trial, the district court granted defendants' Rule 50 motion for judgment as a matter of law on all claims. Green brought this appeal. In reviewing the district court's judgment, we must determine whether "viewing all the evidence which has been tendered and should have been admitted in the light most favorable to the party opposing the motion, no jury could decide in that party's favor." Watters v. City of Philadelphia, 55 F.3d 886, 891 (3d Cir.1995) (quoting Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir.1993)).
On appeal Green contends his First Amendment right to free speech was violated because he was transferred in retaliation for his appearance as a character witness at Keller's bail hearing. A public employee's claim of retaliation for engaging in a protected activity is analyzed under a three-step process. See Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir.1996); Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995); Swineford v. Snyder County Pa., 15 F.3d 1258, 1270 (3d Cir.1994). A plaintiff must first demonstrate the activity in question was protected. Second, the plaintiff must show the protected activity was a substantial or motivating factor in the alleged retaliatory action. See Swineford, 15 F.3d at 1270. Finally, defendants may defeat plaintiff's claim by demonstrating "that the same action would have been taken even in the absence of the protected conduct." Id. The district court did not reach the last two factors because it resolved the first factor in defendants' favor as a matter of law. Accordingly, our discussion will focus on the first step, whether Green's appearance in court was a protected activity.
To qualify as a protected activity, Green's court appearance must satisfy the Pickering balancing test. See Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will County, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). First, the court appearance must constitute "speech ... on a matter of public concern." Watters, 55 F.3d at 892. Second, the public interest favoring his expression "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. See also Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35 (); Versarge v. Township of Clinton N.J., 984 F.2d 1359, 1366 (3d Cir.1993) (). Determining whether Green's appearance is protected activity under Pickering is an issue of law for the court to decide. See Waters v. Churchill, 511 U.S. 661, 667-69, 114 S.Ct. 1878, 1884, 128 L.Ed.2d 686 (1994).
Initially we must determine whether Green's appearance as a character witness is a matter of public concern. See Swineford, 15 F.3d at 1270-72. We have held a public employee's appearance as a witness, even in the absence of actual testimony, is "speech" under Pickering. Pro, 81 F.3d at 1291. A public employee's speech involves a matter of public concern if it can "be fairly considered as relating to any matter of political, social, or other concern to the community." Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); see also Watters, 55 F.3d at 892; Versarge, 984 F.2d at 1364. This determination turns on the content, form and context of the public employee's speech. See Watters, 55 F.3d at 892. 4 The district court held Green's court appearance was a matter of public concern. We agree.
In Pro v. Donatucci, we recognized that a public employee's court appearance in response to a subpoena is a matter of public concern. 81 F.3d at 1291. The plaintiff in that case, Sisinia Pro, was subpoenaed by her employer's wife to appear as a witness at her employer's divorce proceedings. Pro appeared at the hearing but was never called to testify. She was fired shortly thereafter. Pro brought suit against her employer under 42 U.S.C. § 1983, claiming he fired her in retaliation for protected activity. We found that Pro had a First Amendment right to appear in court despite the fact that the...
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