Vincent Morris v. Philadelphia Housing Authority

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-3334
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VINCENT MORRIS,
Appellant
v.
THE PHILADELPHIA HOUSING AUTHORITY; PHA-TENANT SUPPORT
SERVICES, INC.;
CARL GREENE (individually and in his official capacity);
ASIA CONEY (individually and in her official capacity);
DIANE ROSENTHAL (individually and in her official capacity)
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 2-10-cv-5431)
District Judge: Honorable Michael M. Baylson
Argued June 26, 2012
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Before: SLOVITER, CHAGARES, and JORDAN, Circuit Judges.
(Filed: July 6, 2012)
Michael Pileggi, Esquire (Argued)
Suite 905
303 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellant
Michael A. Bowman, Esquire (Argued)
Charles M. Gibbs, Esquire
Crystal M. Lacey, Esquire
Bowman Kavulich
1600 Market Street
25th Floor
Philadelphia, PA 19103
Counsel for Appellee Philadelphia Housing Authority
Christopher R. Booth, Jr., Esquire (Argued)
Angela Halim, Esquire
Lisa A. Sabatino, Esquire
Joseph Zaffarese, Esquire
Ahmad & Zaffarese
One South Broad Street
Suite 1810
Philadelphia, PA 19107
Counsel for Appellees Philadelphia Housing Authority Tenant Support Services
and Asia Coney
Hollie B. Knox, Esquire (Argued)
Lauren Cates, Esquire
Clifford E. Haines, Esquire
Haines & Associates
1835 Market Street
Suite 2420
Philadelphia, PA 19103
Counsel for Appellee Carl R. Greene
Sidney R. Steinberg, Esquire (Argued)
Ronald H. Levine, Esquire
Kaitlin M. Piccolo, Esquire
Post & Schell
1600 John F. Kennedy Boulevard
Four Penn Center, 14th Floor
Philadelphia, PA 19103
Counsel for Appellee Diane Rosenthal
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OPINION
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CHAGARES, Circuit Judge.
Appellant Vincent Morris brought this case pursuant to 42 U.S.C. § 1983 against
the Philadelphia Housing Authority (“PHA”), Tenant Social Services, Inc. (“TSSI”), and
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several supervisors and colleagues, alleging that they retaliated against him for speech
protected under the First Amendment. We will affirm the District Court’s grant of the
appellees’ motions to dismiss.
I.
Because we write solely for the parties’ benefit, we set forth only the facts
essential to our disposition. From 1999 through 2010, Morris served as Executive
Assistant to PHA Executive Director Carl Greene. His duties included “the supervision
and oversight of various troubled departments at PHA including . . . TSSI.” Appendix
(“App.”) Vol. II at 9. TSSI is a non-profit organization affiliated with PHA.
In his complaint, Morris alleged that, from 2006 through 2007, Greene required
him to participate in various lobbying activities on behalf of PHA. Greene also
purportedly ordered Morris to perform work for Equity PAC, a political action
committee that was run by TSSI director, and appellee, Asia Coney. Morris resisted
those efforts because PHA’s acceptance of funds from the United States Department of
Housing and Urban Development (“HUD”) Moving to Work Demonstration Program
precluded it from engaging in political activities of that nature. He also objected to a
lawsuit that PHA brought against HUD in 2007 and raised concerns about the
governance of TSSI. Greene and Coney allegedly responded to Morris’s opposition by
either threatening his employment or ignoring his complaints altogether. Finally, Morris
claimed that Greene and Diane Rosenthal, PHA’s Assistant Executive Director of
Finance and Administration, ignored his reports that Coney and another employee were
embezzling money from TSSI.
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In April 2010, Greene demoted Morris, cut his pay by over $30,000, and
transferred him. As a result, Morris resigned and brought this action under 42 U.S.C.
§ 1983 alleging, inter alia, that he was constructively discharged in retaliation for his
protected speech. The District Court granted the appellees’ motions to dismiss on the
basis that Morris’s allegedly protected speech was made pursuant to his official duties
and, as such, was not protected speech under Garcetti v. Ceballos, 547 U.S. 410 (2006).
The District Court also concluded that appellees were entitled to qualified immunity
because Morris had not alleged a plausible claim for a violation of a constitutional right.
Morris appeals those rulings. 1
II.
The District Court had federal question jurisdiction over this case pursuant to 28
U.S.C. §§ 1331 and 1343. We have jurisdiction over the appeal pursuant to 28 U.S.C.
§ 1291. We exercise plenary review of the District Court’s grant of a motion to dismiss.
Santiago v. GMAC Mortg. Grp., Inc., 417 F.3d 384, 386 (3d Cir. 2005). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (quotation marks omitted). “A claim has facial plausibility when the
1
In addition, the District Court declined to exercise supplemental jurisdiction
over Morris’s Pennsylvania Whistleblower Law claims, held that Morris’s First
Amendment claims arising from ten of the thirteen alleged incidents of retaliation were
time-barred, and concluded that Morris had failed to allege adequately his other claims.
Morris does not contest those findings on appeal.
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plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id.III.
We recognize that a public employee has the right, “in certain circumstances, to
speak as a citizen addressing matters of public concern.” Garcetti, 547 U.S. at 417. To
prevail on a First Amendment retaliation claim, a public employee must demonstrate that
(1) he or she engaged in activity that is protected by the First Amendment, and (2) the
protected activity was a substantial factor in retaliatory action by the employer. Gorum v.
Sessoms, 561 F.3d 179, 184 (3d Cir. 2009). “The first factor is a question of law; the
second factor is a question of fact.” Id.We proceed through three steps to ascertain whether a public employee’s speech is
protected by the First Amendment. First, as a threshold issue, we must determine
whether the employee’s speech was made pursuant to his or her official duties, and
therefore was unprotected by the First Amendment, or whether it was constitutionally
protected speech made as a citizen. Garcetti, 547 U.S. at 421 (“[W]hen public employees
make statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.”). If the speech was not made pursuant to an
employee’s official duties, we proceed to the analysis set forth in Pickering v. Board of
Education, 391 U.S. 563 (1968), and consider whether “the employee spoke as a citizen
on a matter of public concern.” Garcetti, 547 U.S. at 418. If the answer to that question
is yes, we must determine “whether the relevant government entity had an adequate
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justification for treating the employee differently from any other member of the general
public.” Id. In other words, we strive to “‘arrive at 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. (quoting Pickering, 391 U.S. at 568).
The dispositive question here is whether the District Court correctly held that
Morris’s speech was made pursuant to his official job duties. While the Supreme Court
in Garcetti did not articulate a “comprehensive framework for defining the scope of an
employee’s duties,” it did condemn reliance on “excessively broad job descriptions” and
eschewed the use of formal job descriptions to determine whether speech was made
pursuant to an employee’s official duties. Id. at 424-25. The Court pronounced that
speech made pursuant to an employee’s official job duties has “no relevant analogue to
speech by citizens who are not government employees.” Id. at 424.
In light of Garcetti and our subsequent cases, we conclude that Morris’s speech
was not entitled to First Amendment protection. We have consistently held that
complaints up the chain of command about issues related to an employee’s workplace
duties — for example, possible safety issues or misconduct by other employees — are
within an employee’s official duties. See, e.g., Foraker v. Chaffinch, 501 F.3d 231, 240
(3d Cir. 2007), abrogated on other grounds by Borough of Duryea v. Guarnieri, 131 S.
Ct. 2488 (2011) (“Price and Warren were acting within their job duties when they
expressed their concerns up the chain of command . . . .”); Hill v. Borough of Kutztown,
455 F.3d 225, 242 (3d Cir. 2006) (holding that a town borough manager’s reports to his
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superiors about harassment by the town mayor were not protected speech because his
reports were made pursuant to his managerial duties).
In Foraker v. Chaffinch, we agreed with the District Court’s finding that three
Delaware State Police firearms instructors were not entitled to First Amendment
protection for their complaints to supervisors about unsafe conditions at the police firing
range, because reporting unsafe conditions to their supervisors was part of their official
duties as instructors at the range. 501 F.3d at 241, 243. The same can be said of Morris,
who acknowledged that his job duties included “the supervision and oversight of various
troubled departments at PHA including . . . TSSI.” App. Vol. II at 9. Morris’s admitted
job duties clearly include the oversight of TSSI and rooting out of financial, as well as
other, problems at PHA. As in Foraker, Morris complained to his direct supervisors and
others in PHA about potential misconduct by employees at PHA and TSSI. Reporting
instances of misconduct and advising Greene on the legality of his course of action were
responsibilities that logically fell within Morris’s duties as Greene’s Executive Assistant
and as a supervisor at TSSI. Furthermore, Morris’s reporting of the embezzlement that
he discovered while reviewing TSSI’s books can be considered part of his official duties
because it related to information acquired through his employment. Gorum, 561 F.3d at
185. 2
2
Morris’s § 1983 claims arising from acts of alleged retaliation that occurred
before October 14, 2008 are time-barred. Thus, we need be concerned only with the
instances of speech and alleged retaliation occurring after that date, which relate to
embezzlement and governance issues at TSSI.
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Finally, because Morris complained to his superiors within PHA about matters
arising in the scope of his employment duties, his speech did not have a “relevant
analogue to speech by citizens who are not government employees.” Garcetti, 547 U.S.
at 424. Morris’s speech was distinct from the speech that we have concluded passes over
the Garcetti threshold and has an analogue to citizen speech. For instance, in Reilly v.
City of Atlantic City, we extended First Amendment protection to truthful in-court
testimony arising out of an employee’s official job responsibilities because an employee
speaks as a citizen in that scenario. 532 F.3d 216, 231 (3d Cir. 2008). Testimony in
court is distinguishable from internal reporting because it is part of the official
adjudication process. Thus, there is a “relevant analogue to speech by citizens who are
not government employees.” Garcetti, 547 U.S. at 424. Admittedly, as with testimony,
there is a social good that comes from internal reporting of misconduct up the chain of
command. The Supreme Court has decided, however, that we should not
constitutionalize management disputes between the government and its employees.
For these reasons, we conclude that Morris did not allege instances of
constitutionally protected speech and he cannot move forward on his First Amendment
retaliation claim. We need not reach the question of qualified immunity.
IV.
In accordance with the foregoing, we will affirm the District Court’s dismissal of
Morris’s amended complaint.
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