Sisinia Pro v. Ronald Donatucci. Ronald Donatucci, Register of Wills , 81 F.3d 1283 ( 1996 )

OPINION

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. Dona-tueei 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. § 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. §§ 1331 and 1343 and we have jurisdiction under 28 U.S.C. § 1291 based upon the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985); In re City of Philadelphia Litig., 49 F.3d 945, 956 (3d Cir.), cert. denied, — U.S. -, 116 S.Ct. 176, 133 L.Ed.2d 116 (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

A. Factual Background

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 included 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.

B. Procedural History

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).¹ On July 14, 1995, Donatucci moved for summary judgment in Ms official capacity (apparently under the impression that he had not been sued in Ms 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 demed 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). Donatueei filed a motion for reconsideration and to amend the order so as to grant summary judgment to Mm in Ms individual capacity on the basis of qualified immumty.² The district court demed 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 immumty.

II. DISCUSSION

A. Qualified Immunity

The determination of whether a public official is entitled to qualified immuMty 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, 73 L.Ed.2d 396 (1982)). In maldng 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, 40 L.Ed.2d 90 (1974)). Public officials thus are “sMelded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of wMch 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 wMch we alluded in In re City of Philadelphia Litig., nevertheless the case implicates principles of qualified immumty.

The focus of qualified immumty 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, 97 L.Ed.2d 523 (1987). As the Supreme Court instructed in Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (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, 20 L.Ed.2d 811 (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, 75 L.Ed.2d 708 (1983). Therefore, “[¡judicial 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, 55 F.3d at 891 (citing Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (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, — U.S. -, -, 114 S.Ct. 1878, 1884, 128 L.Ed.2d 686 (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, 50 L.Ed.2d 471 (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 determining whether Donatucci was entitled to summary judgment is whether Pro’s activity was speech and, if so, was on a matter of public concern.

“An employee’s speech addresses a matter of public concern when it can be ‘fairly considered as relating to any matter of political, social, or other concern to the community.’ ” Holder, 987 F.2d at 195 (quoting Connick, 461 U.S. at 146, 103 S.Ct. at 1690). As the Supreme Court held in Connick, this principle is based upon the idea that

when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.

461 U.S. at 147, 103 S.Ct. at 1690. The public concern inquiry is a legal one, to be determined by reference to the “content, form, and context of a given statement, as revealed by the whole record.” Id. at 147-48 & n. 7, 103 S.Ct. at 1690 & n. 7. We discussed this analysis in Holder.

The content of the speech may help to characterize it as relating to a matter of social or political concern of the community if, for example, the speaker seeks to ‘bring to light actual or potential wrongdoing or breach of public trust’ on the part of government officials. The form and context of the speech may help to characterize it as relating to a matter of social or political concern to the community if, for example, the forum where the speech activity takes place is not confined merely to the public office where the speaker is employed.

987 F.2d at 195 (citations omitted). A conclusion that the speech concerns private rather than public matter makes it unnecessary to proceed to a consideration of the employer’s interests. Connick, 461 U.S. at 146, 103 S.Ct. at 1689-90.

In this case, the district court held that Pro’s potential speech was a matter of public concern not because of its content, which would have been testimony about a purely private matter, but because of its form and context — that is, potential “sworn testimony before an adjudicatory body.” Pro v. Donatucci, No. 94-6001, at 3 (E.D.Pa. Sept.6, 1995) (quoting Freeman v. McKellar, 795 F.Supp. 733, 739 (E.D.Pa.1992)). The court relied on a line of cases decided by the Court of Appeals for the Fifth Circuit holding that a public employee’s truthful testimony receives constitutional protection regardless of its content. See Pro v. Donatucci, No. 94-6001, at 3-4, 1995 WL 552980 (E.D.Pa. Sept.18, 1995) (citing Reeves v. Claiborne County Bd. of Educ., 828 F.2d 1096, 1100-01 (5th Cir.1987); Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1578 (5th Cir.1989), cert. denied, 493 U.S. 1019, 110 S.Ct. 718, 107 L.Ed.2d 738 (1990)). The court also relied on two district court decisions within this circuit that have followed the approach of the Court of Appeals for the Fifth Circuit. Id. at 3 (citing Freeman v. McKellar, 795 F.Supp. at 739-40) (“A public employee’s sworn testimony before an adjudicatory body has been held to be inherently a matter of public concern and protected by the First Amendment.”); Hoopes v. Nacrelli, 512 F.Supp. 363, 365 (E.D.Pa.1981) (same) (cited in Freeman v. McKellar, 795 F.Supp. at 739). The district court did note, however, that one court of appeals explicitly has declined to adopt the Court of Appeals for the Fifth Circuit’s approach, id. (citing Wright v. Illinois Dep’t of Children & Family Servs., 40 F.3d 1492, 1505 (7th Cir.1994)), and that another court of appeals has emphasized the importance of content and form over context, id. (citing Arvinger v. Mayor and City Council of Baltimore, 862 F.2d 75, 79 (4th Cir.1988)).

Donatucci urges us to reverse the district court’s decision. First, he correctly points out that it seems that no reported ease addresses whether the act of responding to a subpoena to testify in a civil matter is protected speech. See Pro v. Donatucci, No. 94-6001, at 9, 1995 WL 552980 (E.D.Pa. Sept.18, 1995) (“Donatucci is correct that neither we nor the parties have found a case conferring constitutional protection on a witness who appeared at trial pursuant to a subpoena but did not testify.”). Second, he states as follows:

Pro was not subpoenaed to offer testimony regarding practices and policies of the Office of the Register of Wills. Rather, she was subpoenaed to testify in the Donatucci divorce proceeding about purely private matters. She makes absolutely no claim that her testimony would have had anything to do with public concerns. To the contrary, she admits that she learned after she responded to the subpoena that her testimony would have concerned a purely private matter that occurred during the first year of her employment in the Office of the Register of Wills.

Br. at 17.

Finally, Donatucci argues that Pro’s would-be testimony cannot even fall under the First Amendment protection provided to testimony before an adjudicatory body by the line of cases of the Court of Appeals for the Fifth Circuit. Id. at 19. That court, he states, announced that its formulation constitutes the “outer boundaries” of First Amendment protection, and because “Pro was not subpoenaed to testify regarding any controversy in the office of the Register of Wills,” and “was not called to provide even neutral testimony regarding the operation or the policies of the Office of the Register of Wills,” her testimony is not protected under that court’s formulation of the public concern doctrine. Id. (citing Reeves, 828 F.2d at 1100).

As noted by the district court, the precise issue in this case seems to be one of first impression, at least in this circuit. In deciding the case, then, we must look to cases that are as closely analogous to the one before us as possible.

The Court of Appeals for the Fifth Circuit has concluded that a public employee’s truthful testimony before an adjudicatory body is inherently a matter of public concern protected by the First Amendment. In Reeves, the plaintiff was a full-time administrator in the county school system, with 30 years of service. 828 F.2d at 1097. The school board sought to fire several teaching assistants in the belief that the assistants had participated in a political campaign. Id. at 1097-98. Reeves was not part of this group, but received a subpoena to testify in the assistants’ subsequent civil suit. Id. at 1098. She duly appeared, and her testimony, while “generally ‘neutral,’ ” did help the plaintiffs (i.e., the teaching assistants) on certain factual issues. Id. The plaintiffs prevailed, and, four days later, the county superintendent of education with the permission of the board reassigned Reeves to a new position and began to strip her of her “longtime perquisites.” Id.

Reeves filed a section 1983 complaint, alleging that the school board and the county superintendent retaliated against her because she had testified in the assistants’ civil suit. Id. at 1099. She prevailed in the district court against the superintendent at a bench trial, and the court of appeals affirmed that decision. Id. at 1101.

In explaining its holding, the court stated:

An individual’s fear of official retribution could inhibit the willingness of the witness to testify truthfully. Not only would the first amendment right of the witness be infringed by this type of coercion, the judicial interest in attempting to resolve disputes by arriving at the truth would be in jeopardy. Furthermore, a witness who succumbed to any real or imagined coercion could also be subject to a charge of perjury. Of course, it is the duty of every person to testify truthfully before a duly constituted tribunal_ Yet, ‘[t]hese values, along with the first amendment values, would not be served’ if the fear of retaliation and reprisal ‘effectively muzzled ’ witnesses testifying in open court.

Id. at 1100 (citations omitted).

The court went on to say that these principles lead to no meaningful distinction between testimony in a criminal proceeding and testimony in a civil proceeding, and that: “Our judicial system is designed to resolve disputes, to right wrongs. We encourage uninhibited testimony, under penalty of perjury, in an attempt to arrive at the truth.” Id. The court thereafter upheld the district court’s conclusion that Reeves had been discharged for exercising her right of free expression protected by the First Amendment.

We agree with the district court’s analysis of Reeves and its applicability to this case. First, the language of “outer boundaries” on which Donatucci relies did not appear in the court’s holding in Reeves, but in its statement of the issue: “The question is whether Reeves’ generally factual testimony concerning the reading program in the Claiborne County school district comes within the outer boundaries of first amendment protection.” Id. at 1100. Thus, we agree with the district court that the court of appeals did not hold that Reeves should set the “outer boundaries” of First Amendment protection. Second, as the district court noted, Reeves emphasized the context and form of protected speech activity, rather than its content. Third, we also agree with the district court that the Reeves court explicitly relied upon the “judicial interest in attempting to resolve disputes by arriving at the truth,” id. at 1100, in formulating its decision. Thus, we disagree with Donatucci that Reeves is inapplicable here.

A later decision of the Court of Appeals for the Fifth Circuit expanded upon Reeves. In Johnston v. Harris County Flood Control Dist., 869 F.2d at 1577, the court first noted that “[ujnder certain circumstances ... the context in which the employee speaks may be sufficient to elevate the speech to the level of public concern,” and then explained that:

When an employee testifies before an official government adjudicatory or fact-finding body he speaks in a context that is inherently of public concern_ If employers were free to retaliate against employees who provide truthful, but damaging, testimony about their employers, they would force the employees to make a difficult choice. Employees either could testify truthfully and lose their jobs or could lie to the tribunal and protect their job security. Those able to risk job security would suffer state-sponsored retaliation for speaking the truth before a body entrusted with the task of discovering the truth. Those unwilling or unable to risk -unemployment would scuttle our efforts to arrive at the truth.

Id. at 1578.

In line with the decisions in these cases, we agree with the district court that Pro had a First Amendment right to respond to Mrs. Donatucci’s subpoena to appear at the divorce proceeding. As the district court stated:

The real issue after Johnston and Reeves is control. In the context of the workplace, a public employee can normally choose to speak, or not to speak, on issues that may incur the wrath of his superiors. A subpoenaed witness has no choice but to appear at a trial, unless he is willing to risk a finding of contempt. Nor does the subpoenaed witness normally have a say in whether he will be called to testify. Retaliation in these circumstances inflicts a punishment on a public employee for performing an act that he could not choose to avoid.

Pro v. Donatucci, No. 94-6001, at 13-14, 1995 WL 552980 (E.D.Pa. Sept.18, 1995).

We recognize that our holding may be somewhat inconsistent with opinions of the Courts of Appeals for the Fourth and Seventh Circuits. In Arvinger v. Mayor and City Council of Baltimore, 862 F.2d at 79, the district court held that a public employee’s comments during a fair employment hearing touched on a'matter of public concern. Id. at 77. The Court of Appeals for the Fourth Circuit reversed, chiding the district court for “improperly elevat[ing] context over content.” Id. at 79. However, in Holder v. City of Allentown, 987 F.2d at 195, we held that context, content, and form all play important roles in the constitutional analysis. Thus, our result is consistent with the law as it has developed in this circuit.

Also, in Wright v. Illinois Dep’t of Children & Family Servs., 40 F.3d at 1505, the Court of Appeals for the Seventh Circuit described the approach adopted by the Court of Appeals for the Fifth Circuit as a “blanket rule according absolute First Amendment protection to communications made in the course of a lawsuit,” which it explicitly declined to follow. We, however, believe that the public employee’s interest in responding to a subpoena and the judicial interest in having state employees respond to subpoenas without fear of employer reprisal justify our ruling. Moreover, we agree with the district court that there is 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, 1995 WL 552980 (E.D.Pa. Sept.18, 1995). Facts in the record before the district court established that Pro appeared at the Donatucci divorce proceeding, pursuant to subpoena and ready to testify truthfully, even though she did not testify. We hold that these facts constituted protected speech because, contextually, the speech was on a matter of public concern.³

Finally, the Pickering balancing test between an employee’s interest in speaking and the employer’s interest in regulating speech here weighs heavily in Pro’s favor.⁴ Pro alleges that Donatucci retaliated against her because of her potential speech in a divisive personal matter between Donatucci and his wife. The state had no legitimate interest in regulating this speech to “promot[e] the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35.

C. Pro’s Rights Were Clearly Established

Donatucci also argues that, even if Pro had a First Amendment right to respond to the subpoena, that right was not clearly established at the time he acted, and he therefore is entitled to qualified immunity. The appropriate standard for qualified immunity, as set forth above, is whether “reasonable officials in the defendants’ position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be lawful.” Good v. Dauphin County Social Servs., 891 F.2d 1087, 1092 (3d Cir.1989).

We agree with the district court that Pro’s right to respond to the subpoena without fear of retaliation was clearly established at the time Donatucci acted. In Bieregu v. Reno, 59 F.3d at 1459, we noted that “the absence of a previous decision from our court on the constitutionality of the conduct at issue is not dispositive” in determining whether the particular constitutional right at issue was clearly established at a particular time, and stated that the standard “require[s] ‘some but not precise factual correspondence between relevant precedents and the conduct at issue,’ ” id. (citing In re City of Philadelphia Litig., 49 F.3d at 970) in order to be satisfied. Moreover, Bieregu found law to be clearly established despite a circuit split, as long as “no gaping divide has emerged in the jurisprudence such that defendants could reasonably expect this circuit to rule” to the contrary. 59 F.3d at 1458-59. Thus, the split between the Courts of Appeals for the Fifth and the Fourth⁵ Circuits at the time of Donatucci’s actions does not preclude our deciding that Pro’s right to respond to the subpoena was clearly established.

Reeves and Johnston provided Donatucci with caselaw from which a reasonable official in his position should have realized that Pro had a First Amendment right to respond to the subpoena. Moreover, a then recent district court case in this circuit had followed the reasoning of the Fifth Circuit, providing even more reference for a reasonable official in Donatucci’s position. See Freeman v. McKellar, 795 F.Supp. at 739-40 (“A public employee’s sworn testimony before an adjudicatory body has been held to be inherently a matter of public concern and protected by the First Amendment.”); see also Hoopes v. Nacrelli 512 F.Supp. at 365 (same). We agree with the district court that:

[a] reasonable government official in Donatucci’s position would be intimately familiar with the[] policy concerns that underlie Reeves. By operation of statute and practice, the functions of the Register of Wills overlap with the functions of the Orphans’ Court. Indeed, the Register of Wills has the power to issue subpoenas and to enforce compliance with those subpoenas. A reasonable Register of Wills would understand the need to protect witnesses from retaliation for compliance with lawfully issued subpoenas, regardless of whether the witnesses ultimately testified. Like an officer of any court, a reasonable Register of Wills has a powerful interest in protecting subpoenaed witnesses from retaliation for compliance with those commands. A contrary proposition would ultimately undermine both the authority of his position and his ability to carry out his duties.

Pro v. Donatucci No. 9445001, at 14, 1995 WL 552980 (E.D.Pa. Sept.18, 1995).

III. CONCLUSION

For all the reasons detailed above, we will affirm the district court’s September 18,1995 order denying summary judgment and denying qualified immunity to Donatucci.

1 . See Pro v. Donatucci, No. 94-6001, at 1 n. 1, 1995 WL 552980 (E.D.Pa. Sept.18, 1995):

We recognize that, normally, a court should determine the issue of qualified immunity well in advance of trial, and even before discovery, if possible. Siegert v. Gilley, 500 U.S. 226 [233-34], 111 S.Ct. 1789, 1793-94, 114 L.Ed.2d 277 (1991). Here, however, because of an ambiguity in Pro's complaint, it only became clear two weeks ago that she had sued Donatueei in both his individual and official capacities. See Pro v. Donatucci, No. 94-6001 (E.D.Pa. September 6, 1995) (Order interpreting Pro’s complaint to assert a claim against Donatueei in his individual capacity).

At oral argument before us, counsel for Pro stated that she is not suing Donatueei in his official capacity, and that she therefore seeks only damages and not reinstatement to her position. In any event, we would address only Dona-tucci’s claim of qualified immunity in this opinion.

2 . Pro argued in the district court that Donatucci waived his right to assert the qualified immumty defense by failing to include it in his answer or an amended answer, and she repeats that argument on this appeal. The district court decided, however, that because the question was one of law, it "[did] not require a more elaborate record than [it] already [had],” and that it therefore would reject Pro's demand for discovery on the defense and would consider it on the merits. Pro v. Donatucci, No. 94-6001, at 1-2, 1995 WL 552980 (E.D.Pa. Sept.18, 1995). Our court previously has taken the position that whether an affirmative defense that must be pleaded in the answer is waived will depend on whether the defense was raised "at a pragmatically sufficient time” and the plaintiff was prejudiced in the ability to respond. See Charpentier v. Godsil, 937 F.2d 859, 864 (3d Cir.1991). In this case, Donatucci made the general statement in his answer that he was asserting "all defenses available under 42 U.S.C. § 1983” and then explicitly raised the qualified immunity defense in his motion for summary judgment, which he filed just one day after the district court held for the first time that Pro had sued Donatucci in his individual capacity. In these circumstances, we believe that Donatucci adequately met the standard that we have followed. We therefore hold that he has not waived the defense of qualified immunity.

3 . Pro appeared in court at the divorce trial in response to a subpoena. Accordingly, we have no reason to consider what result we would have reached if she had appeared voluntarily. Although Judge Roth, in dissent, characterizes our holding here as constitutionalizing "simple obedience to the law,” dissent at 1292, we must point out that here, Pro's response to the subpoena clearly implicated the First Amendment — her potential testimony would have constituted speech itself, not expressive conduct, as the dissent describes her act of compliance with the subpoena. Thus we are not here “constitutionalizing compliance” with the law. Dissent at 1292.

4 . By characterizing our holding as affording "absolute protection” to courtroom testimony regardless of its content, see dissent at 1296, Judge Roth seems to ignore our analysis of the Pickering balancing test altogether. We have not held that courtroom testimony should receive “absolute” First Amendment protection. On the contrary, we have held that the context of such speech raises the speech to a level of public concern regardless of its content, which in turn affords otherwise unprotected speech First Amendment protection. This protection, however, is not "absolute.” The interests of the employee in speaking and the employer in regulating the speech must then be balanced against one another, as in any First Amendment balancing context, and that is exactly what we did. Judge Roth thus misstates both our holding and First Amendment jurisprudence.

5 . The district court correctly noted that, although the Court of Appeals for the Seventh Circuit now has rejected what it perceived as the Court of Appeals for the Fifth Circuit's "absolute rule" protecting trial testimony, Wright, 40 F.3d at 1505, it decided that case ten months after Pro’s termination. Thus, the case is not applicable to our determination of whether Pro’s right was clearly established at the time Donatucci acted.