Kelly Conard v. Pennsylvania State Police , 902 F.3d 178 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 16-3346
______________
KELLY CONARD,
Appellant
v.
PENNSYLVANIA STATE POLICE;
PENNSYLVANIA STATE POLICE HUMAN
RESOURCES;
SGT. JOSEPH TRIPP; SGT. DENNIS HILE
______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 1-15-cv-00351)
Honorable Sylvia H. Rambo, District Judge
______________
Argued June 13, 2018
BEFORE: CHAGARES, GREENBERG, and FUENTES,
Circuit Judges
(Filed: August 28, 2018)
______________
Nicholas J. Boyle
Eric J. Hamilton (argued)
Williams & Connolly
725 12th Street, N.W.
Washington, DC 20005
Attorneys for Appellant
Josh Shapiro
Attorney General of Pennsylvania
John G. Knorr
Chief Deputy Attorney General
J. Bart DeLone
Howard G. Hopkirk (argued)
Kenneth L. Joel
Office of Attorney General
of Pennsylvania
15th Floor
Strawberry Square
Harrisburg, PA 17120
Attorneys for Appellee
_____________
OPINION OF THE COURT
______________
GREENBERG, Circuit Judge.
2
I. INTRODUCTION
Plaintiff Kelly Conard appeals from the July 12, 2016
order of dismissal of a civil rights action that she brought under
42 U.S.C. § 1983 against her former employer, the Pennsylvania
State Police, and her former State Police supervisors, Sergeants
Joseph Tripp and Dennis Hile. The District Court held that the
bulk of Conard’s claims were barred because they had been
adjudicated in a prior action which she initiated after she
unsuccessfully sought reemployment by the State Police after
she voluntarily had resigned. The Court also dismissed her
separate claim that defendants retaliated against her for having
filed that prior action by giving her negative employment
references as it held that the complaint failed to state a claim
upon which relief could be granted. For the reasons set forth
below, we will reverse the order dismissing Conard’s First
Amendment retaliation claim.1
II. FACTUAL and PROCEDURAL BACKGROUND
We draw the following facts from Conard’s amended
complaint which we assume to be true in our consideration of
the order granting defendants’ motion to dismiss her retaliation
complaint. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-
56, 127 S. Ct. 1955, 1965 (2007). The Pennsylvania State
Police employed Conard for seventeen years as a 911 dispatcher.
1
She raised the Fourteenth Amendment as well as the First
Amendment but the Fourteenth Amendment claim adds nothing
to her case so we do not discuss that Amendment further.
3
Conard voluntarily ended her employment in 2002 when she
moved to Texas to accompany her husband, who was in that
state on an active military deployment. When she left her
employment in 2002, there was documentary evidence showing
that she had a record of “commendable and outstanding
personnel evaluations.” App. 107, ¶ 9. Nevertheless, the record
shows that defendants Tripp and Hile, Conard’s direct
supervisors before she left her State Police employment, and
Conard had had employment-related disagreements. The
substance of these disagreements was at issue in Conard’s
earlier lawsuit but they are of limited significance on this appeal
because she can assert a First Amendment retaliation claim to
bring this action even though her first action was not
successful.2
Conard returned to Pennsylvania from Texas in 2004 and
reapplied for her 911 dispatcher position. Following an initial
2
Conard’s complaint describes her earlier disagreements with
the individual defendants as follows. On one occasion, Conard
went “over Defendant Hile’s head” to request emergency
backup officers for an incident involving gunfire, which in
Conard’s view required extra assistance. In her view, Hile
“refus[ed] to take appropriate actions” and, according to Conard,
her actions in going over his head to secure the backup
“probably saved a life.” App. 107, ¶ 11. Conard’s disagreement
with Sergeant Tripp related to her request that she be allowed to
take a sick day when she was involved in an automobile
accident which Tripp denied. Conard alleges that Tripp’s denial
was unreasonable and she claims that Tripp subsequently
restricted her use of sick leave even though Conard never had
requested excessive leave.
4
interview, the State Police told Conard that she would be hired
subject to a background check. But the result of the background
check ultimately led the State Police not to make her an offer of
employment. Conard alleges that she was told that information
from her former supervisors, Hile and Tripp, caused the State
Police to reject her application. Id.Conard believed that the denial of her 2004 application
for employment was discriminatory and was the result of Hile’s
and Tripp’s retaliation against her because of disagreements
between Conard and them during her previous employment with
the State Police. Consequently, she filed an administrative
charge of discrimination with the Pennsylvania Human
Relations Commission and the Equal Employment Opportunity
Commission alleging discrimination based on gender.3 Then on
July 24, 2006, Conard filed her initial civil rights action in the
district court against the Pennsylvania State Police, Hile and
Tripp charging that they discriminated and retaliated against her
because of the previous employment disputes. The court
referred the matter to a magistrate judge who filed a report and
recommendation that the court should dismiss Conard’s action.
The court accepted the recommendation and dismissed the
action.4 Conard appealed but we affirmed in an unpublished
opinion. Conard v. Pennsylvania State Police, 360 F. App’x 337
(3d Cir. 2010).
3
She does not raise a gender discrimination issue on this appeal.
4
We need not go into detail about the basis for the court’s
decision.
5
Conard alleges that in the years following the filing of
her initial action and up to the time that the record was closed in
this case, she has been unable to obtain employment. She claims
that defendants have given prospective employers “negative,
false, and defamatory” statements in response to reference
requests. App. 112, ¶ 33, 35. She further asserts that the
individual defendants told Conard’s prospective employers “that
[Conard] had attendance issues, absence issues, and had filed a
law suit against them and that [she] was not eligible to return” to
the State Police. App. 114, ¶ 40. Conard claims that these
statements do not accurately reflect her exemplary record as a
State Police employee and that defendants knowingly made
these false statements in retaliation for Conard having filed the
prior federal lawsuit. Conard also alleges that on at least one
occasion, in response to an employment reference request, a
representative of the State Police falsely represented that the
State Police never had employed Conard.
Conard filed this second action pro se in 2015, alleging
that defendants retaliated against her in violation of her First
Amendment rights for having brought her initial action.
Defendants in response filed a motion to dismiss. The District
Court once again referred the matter to a magistrate judge who
filed a report and recommendation that the Court grant
defendants’ motion to dismiss. The Court adopted that
recommendation and dismissed the action for failure to state a
claim upon which relief could be granted.5 Conard
unsuccessfully moved for reconsideration, and then appealed.
5
The magistrate judge recommended that Conard be directed to
file a more definite statement but the District Court did not
adopt that portion of the recommendation. The definitive
6
On this appeal, Conard moved for in forma pauperis
status, which we granted. In our order we instructed the parties
to brief two issues, in addition to any others they wished to raise,
relating to the proper standard applicable to this First
Amendment action:
(1) whether the public-employment framework
applies to a former employee under the
circumstances of this case, cf. Williams v. Town
of Greenburgh, 535 F.3d 71, 76-77 (2d Cir.
2008); Benson v. Scott, 734 F.2d 1181, 1186 (7th
Cir. 1984); and (2) whether a plaintiff must plead
adverse action ‘of a particularly virulent
character,’ McLaughlin v. Watson, 271 F.3d 566,
573 (3d Cir. 2001); see also Mirabella v. Villard,
853 F.3d 641, 651 (3d Cir. 2017), when claiming
retaliation in the form of a public employer’s
negative employment references.
App. 148.
III. JURISDICTION and STANDARD OF REVIEW
The District Court had jurisdiction under 28 U.S.C. §§
1331 and 1334. We have jurisdiction to review the dismissal of
plaintiff’s complaint under 28 U.S.C. § 1291. We exercise de
novo review over the dismissal of Conard’s complaint under
Federal Rule of Civil Procedure 12(b)(6). See Schmidt v.
Skolas, 770 F.3d 241, 248 (2014). In this motion to dismiss
statement matter is not an issue on this appeal.
7
context, we “are required to accept as true all allegations in the
complaint and all reasonable inferences that can be drawn from
[the allegations] after construing them in the light most
favorable to the non-movant.” Jordan v. Fox, Rothschild,
O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994) (citations
omitted). The parties in their briefs have addressed the issues
that we set forth in our order granting her in forma pauperis
status.
IV. DISCUSSION
We begin by clarifying the applicable First Amendment
legal standard in two respects. First, we conclude that the
framework for First Amendment claims brought by government
employees against their employers does not apply to Conard’s
retaliation claim, because the speech which Conard alleges
triggered the retaliation against her—filing administrative
complaints6 and a lawsuit against her former employer—
occurred after she had left her State Police employment. The
public-employment framework exists to accommodate the
competing interests of public employees to speak freely and the
government’s need to regulate the speech of its own employees.
See Garcetti v. Ceballos, 547 U.S. 410, 417-18, 126 S. Ct.
1951, 1957-58 (2006) (citing Pickering v. Bd. of Educ. of Twp.
High Sch. Dist. 205, 391 U.S. 563, 88 S. Ct. 1731 (1968)). But
once Conard left her State Police employment, it did not have a
protectable interest in controlling Conard’s speech. Therefore,
the public-employment framework does not apply to her claim.
See Williams v. Town of Greenburgh, 535 F.3d 71, 77 (2d Cir.
6
The administrative complaints are a secondary matter so we do
not mention them further.
8
2008) (declining to apply public-employment framework to
retaliation claim brought by former government employee).7
Second, in the context of this action, Conard was not
required to plead that defendants engaged in retaliatory conduct
“of a particularly virulent character,” a standard applicable to
retaliation claims where the retaliatory conduct involves speech
by a public employee defendant. See McLaughlin v. Watson,
271 F.3d 566, 573 (3d Cir. 2001). Of course, we recognize that
absent particularly virulent conduct, an official’s speech
ordinarily does not amount to a retaliatory act for First
Amendment purposes. Id. at 573. But where a defendant public
official’s alleged retaliation takes the form of the official’s own
speech, we have noted that the official’s First Amendment rights
countervailing to the employee’s rights become implicated, and
this leads us to apply a less demanding but more specific test to
survive a motion to dismiss. Id. We look instead to the
defendant’s action to determine whether in that action “there
was ‘a threat, coercion, or intimidation, intimating that
7
Defendants have argued that Conard’s claims should be
evaluated under the public-employment framework because she
is attempting to re-litigate claims that arose while she was an
employee and were the subject of her earlier lawsuit. However,
in her briefs and at oral argument before this Court, Conard
explicitly has disclaimed any attempt to revive those earlier
claims. Accordingly, we base our conclusion that the public-
employment framework does not apply on our understanding
that Conard has abandoned any claim that would involve speech
she made while employed by the State Police. We do not
consider the question of whether the public-employment
framework could be applied in post-employment litigation
involving earlier speech during public employment.
9
punishment, sanction, or adverse regulatory action [would]
follow.’” Mirabella v. Villard, 853 F.3d 641, 651 (3d Cir. 2017)
(quoting McLaughlin, 271 F.3d at 573).
Moreover, courts have not applied the heightened
virulent character standard in cases where, as here, the official’s
conduct relates only to a private matter such as the plaintiff’s job
performance as a former employee. Thus, in Suarez Corp.
Industries v. McGraw, 202 F.3d 676 (4th Cir. 2000), the case on
which we relied in McLaughlin, the Court of Appeals for the
Fourth Circuit anticipated that the heightened standard might not
apply where a defendant’s statements “concerned private
information about an individual.” 202 F.3d at 689.
Furthermore, that court has declined to apply the McLaughlin
virulent character test to cases where the public official’s
“retaliatory speech discloses private or damaging information
about the plaintiff.” Blankenship v. Manchin, 471 F.3d 523,
528 n.4 (4th Cir. 2006); see also Balt. Sun Co. v. Ehrlich, 437
F.3d 410, 420 (4th Cir. 2006).
We have suggested that the virulent character test is
implicated only where the public official’s speech touches on a
matter of public concern. See Muni. Revenue Servs., Inc. v.
McBlain, 347 F. App’x 817, 824 (3d Cir. 2009) (non-
precedential). At this point in the proceedings, accepting as true
Conard’s allegations that defendants repeatedly misrepresented
her employment history and job performance, applying the
virulent character test would require us to recognize that
defendants had a First Amendment interest in their allegedly
untruthful statements that Conard could overcome only by
scaling a high barrier. But because this case does not involve a
matter of public concern, we decline to interpose the virulent
character test on this appeal.
10
Having clarified the applicable standard, we now apply
the standard we adopt to Conard’s claim that defendants’
allegedly false statements to her prospective employers were
made to retaliate against her for having brought her earlier
judicial complaint. The District Court concluded that Conard
had not adequately pled a causal link between her earlier lawsuit
and the defendants’ statements because of the long temporal gap
between those events. We conclude, however, that dismissal for
lack of causation was premature and that Conard should be
afforded the opportunity to develop proof of causation through
discovery. While significant time passed between Conard’s
earlier complaint and the alleged retaliation, there is no bright
line rule for the time that may pass between protected speech
and what constitutes actionable retaliation.
To plead a plausible First Amendment retaliation claim,
Conard was required to allege three elements: (1) “[she engaged
in] constitutionally protected conduct, (2) [there was] retaliatory
action sufficient to deter a person of ordinary firmness from
exercising [her] constitutional rights, and (3) [there was] a
causal link between the constitutionally protected conduct and
the retaliatory action.” Mirabella, 853 F.3d at 649 (3d Cir.
2017) (quoting Thomas v. Independence Twp., 463 F.3d 285,
296 (3d Cir. 2006)). There is no doubt that Conard’s initiation
of the first action was constitutionally protected conduct so we
pass to the other elements. In considering the causal link
element on the motion to dismiss, we conclude that Conard
plausibly has pled that there was a causal link between her
conduct, i.e. initiating the first action, and defendants’ allegedly
retaliatory action necessary to support her claim. See Miller v.
Mitchell, 598 F.3d 139, 153 (3d Cir. 2010). A plaintiff
sufficiently pleads her case with respect to causation if she
11
pleads that her “constitutionally protected conduct was a
substantial or motivating factor” for the retaliatory conduct.
Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016). While
“unusually suggestive” timing can provide evidence of
causation, causation also can be shown “from the evidence
gleaned from the record as a whole.” Id. at 424. Conard can
attempt to show retaliation through a “pattern of antagonism” in
addition to the timing of events. Id. at 422.
The magistrate judge in this second case in
recommending that the District Court make a finding that
Conard had not adequately pled causation, relied on a group of
cases for the proposition that causation may be implied by
temporal proximity only if the alleged retaliation follows the
protected conduct within a number of days, rather than weeks or
months. However, those cases largely involved summary
judgment proceedings where the plaintiff had had an
opportunity to marshal evidence and had chosen to rely on
circumstantial evidence to prove causation based on the timing
of events.
By contrast, at the motion to dismiss stage, the District
Court was obliged to accept Conard’s factual allegations as true
and to draw reasonable inferences regarding causation in her
favor. After all, her allegations do not lack plausibility. In
general, there is not a bright line rule limiting the length of time
that may pass between a plaintiff’s protected speech and an
actionable retaliatory act by a defendant. See Coszalter v. City
of Salem, 320 F.3d 968, 977 (9th Cir. 2003) (cautioning that “a
specified time period cannot be a mechanically applied
criterion”). While obviously we take no position on the truth or
falsity of Conard’s claims, we are constrained to reverse the
12
dismissal of the retaliation claim because, to the extent that the
Court found that causation could not be proven because of the
passage of time between Conard’s protected conduct, i.e.,
bringing her initial action, and the retaliation, that conclusion
was premature at the motion to dismiss stage.
In addition, the District Court held that negative
references cannot constitute retaliation, and in doing so relied on
a single Title VII case, Chinoy v. Pa. State Univ., No. 11-cv-
1263, 2013 WL 6631536, at *9 (M.D. Pa. Dec. 17, 2013).
However, the question of whether a negative reference would be
enough to satisfy the “deterrence” element of Conard’s claim is
debatable. See Brescia v. Sia, No. 07-cv-8054, 2008 WL
1944010, at *4 (S.D.N.Y. Apr. 30, 2008) (“We have no doubt
that the prospect of a negative employment reference, which has
the obvious potential to impede the search for a new job, would
deter a person of ordinary firmness from exercising his
constitutional rights.”).8 We have held that “First Amendment
retaliation claims are always individually actionable, even when
relatively minor” and that the deterrence threshold to chill a
plaintiff from exercising her First Amendment rights by reason
of the defendant’s conduct for such a claim is “very low.”
8
We think it appropriate to point out that if a retaliation action
can be brought against an employer or former employer for
giving a negative reference the employer may be reluctant to
give any reference at all at the request of a later potential
employer but instead will adopt a “no response” policy on
receiving a reference request. Therefore, courts should
scrutinize retaliation cases based on negative references with
great care, particularly if the employer moves for summary
judgment in such an action.
13
O’Connor v. City of Newark, 440 F.3d 125, 127-28 (3d Cir.
2006). Based on this standard, Conard adequately alleged
retaliatory conduct by defendants that satisfies the deterrence
prong of her First Amendment claim as set forth in Mirabella.
Therefore, her retaliation complaint satisfies all three elements
of the Mirabella test and the Court should not have dismissed it
on a motion to dismiss and we will remand it for further
proceedings.
V. CONCLUSION
For the reasons above, we will reverse the District
Court’s July 12, 2016 order granting defendants’ motion to
dismiss and will remand the case to that Court for further
proceedings on Conard’s First Amendment retaliation claim.
On the remand, Conard should have the opportunity to conduct
appropriate discovery and to present evidence establishing the
causal connection between her protected First Amendment
conduct and the alleged retaliation by defendants. Of course,
defendants also should have the right to discovery on the
remand. Finally, we thank Conard’s attorneys on this appeal for
having represented her in a fine way on a pro bono basis.
14