Mike Baloga v. Pittston Area School District

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 18-1344
_______________
MIKE BALOGA,
Appellant
v.
PITTSTON AREA SCHOOL DISTRICT;
JIM SERINO
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 3-16-cv-01039)
Honorable Richard P. Conaboy, U.S. District Judge
_______________
Argued: October 23, 2018
Before: KRAUSE, COWEN, and FUENTES, Circuit Judges
(Opinion Filed: June 25, 2019)
Cynthia L. Pollick [ARGUED]
The Employment Law Firm
363 Laurel Street
Pittston, PA 18640
Counsel for Plaintiff-Appellant Mike Baloga
William J. McPartland
Thomas A. Specht [ARGUED]
Marshall Dennehey Warner Coleman & Goggin
P.O. Box 3118
Scranton, PA 18505
Counsel for Defendants-Appellees Pittston Area
School District and Jim Serino
_______________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
Mike Baloga, a custodian for the Pittston Area School
District and vice president of the custodial union, alleges that
the District and its maintenance director, Jim Serino, violated
his First Amendment rights by retaliating against him based on
his union association and related speech. Treating Baloga’s
speech and association claims together, the District Court
granted summary judgment in favor of the District and Serino,
concluding that Baloga’s activity was not constitutionally
protected because it did not implicate a matter of public
concern. As we recently emphasized in Palardy v. Township
2
of Millburn, however, where a public employee asserts
retaliation in violation of the First Amendment as a free speech
claim and a pure union association claim, those claims must be
analyzed separately, and consistent with longstanding
Supreme Court precedent, there is no need to make a separate
showing of public concern for a pure union association claim
because membership in a public union is “always a matter of
public concern.” 906 F.3d 76, 80–81, 83 (3d Cir. 2018), cert.
denied, No. 18-830, — S. Ct. —, 2019 WL 2078114, at *1
(May 13, 2019). Because Baloga has raised a triable issue
about whether he was retaliated against based solely on his
union association, we will affirm in part, reverse in part, and
remand for further proceedings.
I. Background
A. Factual Background 1
Baloga became a full-time custodian for the District in
1999. Between 2008 and 2016, he worked most of the year at
the primary center, 2 where his duties related to field
1
The facts set forth here are drawn from the parties’
statements of undisputed facts, deposition testimony, and
exhibits. Because we are reviewing a district court’s grant of
summary judgment, we recite the facts in the light most
favorable to Baloga as the non-moving party and make all
reasonable inferences in his favor. See Hugh v. Butler Cty.
Family YMCA, 418 F.3d 265, 266–67 (3d Cir. 2005).
2
The record refers interchangeably to the location
where Baloga spent most of his time as both the “primary
3
maintenance and outdoor work. Given the seasonal nature of
that work, however, the District would transfer Baloga to the
high school each year from December through late February or
March of the following year, with the specific rotation dates
depending on the District’s needs. 3
In addition to these job responsibilities, Baloga began
serving as the vice president of the custodial union in 2010. In
this role, he was regularly approached by fellow custodians
about problems they were having with the District, and Baloga
made efforts to solve them internally, often acting as the
union’s “mouthpiece” in relaying concerns to the District. JA
63. However, the decision whether to escalate an issue to an
official grievance was decided by Thomas Rome, the union
president, in consultation with Baloga.
According to Baloga and Rome, the relationship
between the union and the District—and, in particular, its
maintenance director, Jim Serino—was strained. Over the
years, Baloga testified, Serino repeatedly threatened that the
school board would eliminate union members’ days off if the
union continued to file grievances. And according to Rome,
“[t]here was never a good atmosphere” between the union and
Serino, and it appeared that Serino did not “ha[ve] respect for
the bargaining unit.” JA 64. Rome also testified that he
center” and the “primary school.” For consistency, we will
refer to the location as the “primary center.”
3
Although the Collective Bargaining Agreement
prohibited transfers between the two schools, Baloga’s
transfers were permitted as a past practice.
4
thought Serino “wanted [Baloga] out of the mix” because
Baloga, “being [at the high school] . . . , being pro union, [and]
being pro contract,” might “interfere” with Serino’s directives.
JA 64. School board members and others employed by the
District likewise perceived Serino to have a negative attitude
toward the union.
In the 2015–2016 school year, Baloga rotated from the
primary center to the high school in early January, a little later
than usual. Within a couple of weeks, Baloga learned that the
District intended to require custodians to work on Martin
Luther King Jr. Day even though they had received that day as
a holiday for the past twenty-six years. Teachers and students
continued to have the day off. On January 15, 2016, after
consulting with Baloga, Rome filed a grievance on behalf of
the union, challenging the District’s decision as a violation of
a past practice. The same day, Baloga sent a text message to
Serino, and the following exchange ensued:
Baloga: I have plans on Monday.
Why are they making us
work. We never worked a
[Martin Luther King Jr.]
day ever. In my 26 years.
Do I have to take a day off?
Serino: Unfortunately there is [sic]
multiple events and lots of
work that needs to be
completed. A day will have
to be used if you are not
present.
Baloga: You can’t do anything as
boss. You[’re] the director.
5
You have a lot of influence.
Why can’t you talk to
[superintendent] Kevin
[Booth].
Serino: Already did.
Baloga: In the past [former
maintenance director]
Clarence always got us the
day off. It really hurts us
with families.
JA 25. Shortly after the union filed the grievance, Baloga also
exchanged words with his direct supervisor, Ken Bangs, who
told him that “because you filed a grievance on Martin Luther
. . . King Day, the board now says you have to work full days
on snow days.” JA 212.
On the following Friday, January 22, 2016, Baloga and
Serino spoke in person about the grievance. According to
Baloga, Serino was “very, very angry,” accused him of
“complaining,” and said that if Baloga was “not happy [at the
high school],” Serino “could transfer [him] today.” 4 JA 215.
Baloga demurred, telling Serino that he was happy in his
position but that “people are coming to me as the vice president
[of the union] wondering why they’re getting a day taken off
4
Although Serino testified that he told Baloga during
their conversation that Baloga was bringing down morale,
Baloga disputes this and contends that Serino was upset
because he thought Baloga was telling others that morale in the
District was low.
6
them,” JA 40, to which Serino responded: “You should have
never filed that grievance until you talked to me,” JA 36.
Later that day, less than three weeks into Baloga’s
rotation, Bangs notified him that he was being transferred back
to the primary center, effective the next business day—that is,
more than a month before his usual transfer date. Serino did
not explain the transfer decision to Baloga, but he asserted in
subsequent deposition testimony that there were two reasons:
(1) Baloga’s colleagues said he was “bringing the morale” of
the group down by “whining,” JA 102; and (2) the District had
hired new employees, so Baloga’s continued assistance at the
high school was no longer necessary. Notwithstanding the
District’s prior practice of annual rotations, Baloga has not
been assigned to work at the high school again since the
transfer.
Although the early (and, effectively, permanent)
transfer did not change his pay or benefits, Baloga testified that
it negatively affected him in other ways. For example, he could
no longer go home during lunchtime to help his wife, who
homeschools their eight children, because the primary center is
twice as far as the high school from his home. He also could
no longer work the 6:00 a.m. to 2:00 p.m. shift—a benefit only
available to workers at the high school—which had allowed
him to go home early at least once a month. Finally, he
described the transfer as effectively a demotion in job
responsibilities, with attendant reputational and emotional
costs, as his tasks at the primary center during the winter
months were menial relative to those at the high school,
reducing him to “a mop and a broom.” JA 38. Fearful of
further retribution, however, Baloga did not file a grievance to
contest his transfer.
7
B. Procedural Background
Baloga eventually filed the underlying complaint in this
action, asserting two First Amendment retaliation claims
against the District and Serino (the “Defendants”)—one for a
violation of his freedom of speech and one for a violation of
his right to associate with the union. The parties then filed
cross-motions for summary judgment, with the Defendants
arguing that Baloga’s activity was not constitutionally
protected, but that, even if it were, he failed to establish the
other elements of a retaliation claim. Defendants further
argued that there was no municipal policy or custom as
required to support liability against the District under Monell
v. Department of Social Services of City of New York, 436 U.S.
658, 690 (1978), and that Serino was entitled to qualified
immunity because any constitutional right at issue was not
“clearly established” at the relevant time.
The District Court denied Baloga’s motion and—
reaching only the question whether Baloga’s activity was
constitutionally protected—granted the Defendants’. 5
5
As for Baloga’s motion, the Court explained that
summary judgment was inappropriate because the motivation
for Baloga’s transfer was “far from clear.” JA 8. Although the
Court acknowledged that “the temporal proximity” between
the union’s filing of the Martin Luther King Jr. Day grievance
and Baloga’s transfer was “somewhat suggestive of a
retaliatory motive,” it concluded that many other factors, such
as the transitory nature of Baloga’s transfers and the fact that
the District had recently hired new employees to work in the
high school, could lead a reasonable jury to conclude that the
8
Although the Defendants sought summary judgment on both
Baloga’s speech and association claims, the District Court
explicitly discussed only Baloga’s speech, concluding that it
was not constitutionally protected because it did not address a
matter of public concern under Connick v. Myers, 461 U.S. 138
(1983). Rather, the Court reasoned, his speech implicated only
“his personal preference to have a paid holiday” and, at most,
a concern for employee morale. JA 12. Even if Baloga’s
speech did touch on a matter of public concern, the Court
continued, Baloga’s “interest in speaking out” was subordinate
to the interest of the District in assigning its personnel in a
manner that “promotes harmony in the workplace and efficient
performance of its mission.” JA 15. Without separately
analyzing Baloga’s association claim, the District Court then
granted summary judgment to the Defendants on both counts
of the complaint. This appeal followed.
II. Jurisdiction and Applicable Standards
The District Court had jurisdiction under 28 U.S.C. §
1331, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
We review a district court’s grant or denial of summary
judgment de novo, see EEOC v. Allstate Ins. Co., 778 F.3d 444,
448 (3d Cir. 2015), and may affirm on any basis supported by
the record, Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir.
2009). Summary judgment is appropriate only where “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A dispute is “genuine” if “a reasonable jury could return a
District’s decision to transfer Baloga was not retaliatory. JA
8–9.
9
verdict for the nonmoving party,” Santini v. Fuentes, 795 F.3d
410, 416 (3d Cir. 2015) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)), and a fact is “material” where
“its existence or nonexistence might impact the outcome of the
suit under the applicable substantive law,” id. (citing Anderson,
477 U.S. at 248). At the summary judgment stage, our role is
“not . . . to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial,” Anderson, 477 U.S. at 249, and like the District Court,
we must review the facts in the light most favorable to the non-
moving party, see Hugh v. Butler Cty. Family YMCA, 418 F.3d
265, 267 (3d Cir. 2005).
III. Discussion
To prevail on a First Amendment retaliation claim
under 42 U.S.C. § 1983, 6 a plaintiff must prove that “(1) he
engaged in ‘constitutionally protected conduct,’ (2) the
defendant engaged in ‘retaliatory action sufficient to deter a
person of ordinary firmness from exercising his constitutional
rights,’ and (3) ‘a causal link [existed] between the
constitutionally protected conduct and the retaliatory action.’” 7
6
To establish any claim under § 1983, a plaintiff must
demonstrate that (1) the conduct at issue was committed by a
person acting under the color of state law, and (2) the
complained-of conduct deprived the plaintiff of rights secured
under the Constitution or federal law. See Kaucher v. Cty. of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006). Only the second
criterion is at issue here.
7
The first element of the analysis requires a legal
determination; the remaining steps present questions for the
10
Palardy, 906 F.3d at 80–81 (quoting Thomas v. Indep. Twp.,
463 F.3d 285, 296 (3d Cir. 2006)). If a plaintiff satisfies these
elements, the government may avoid liability if it can show by
a preponderance of the evidence that it would have taken the
adverse action “even in the absence of the protected conduct.”
Miller v. Clinton Cty., 544 F.3d 542, 548 (3d Cir. 2008)
(quoting Watters v. City of Phila., 55 F.3d 886, 892 (3d Cir.
1995)).
Here, we address only Baloga’s association claim
because he failed to press his speech claim on appeal. 8 The
fact finder. See Baldassare v. New Jersey, 250 F.3d 188, 195
(3d Cir. 2001); see also Watters v. City of Phila., 55 F.3d 886,
899 (3d Cir. 1995) (“[W]hen considering the protected status
of [First Amendment activity], an appellate court must . . .
make an independent constitutional judgment on the facts of
the case.” (citations omitted)); Suppan v. Dadonna, 203 F.3d
228, 233–35 (3d Cir. 2000) (“It is a question of fact whether
the [allegedly adverse action] reached the threshold of
actionability under section 1983.” (citation omitted)); Zamboni
v. Stamler, 847 F.2d 73, 79–80, 79 n.6, 80 (3d Cir. 1988)
(noting that whether protected activity was a motivating factor
for an employer’s adverse action and whether the employer
would have taken the action regardless are questions for the
jury).
8
In his briefing on appeal, Baloga refers almost
exclusively to the associational rights at stake and at oral
argument, Baloga’s counsel confirmed that the crux of her
client’s argument was that he was retaliated against for his
association with the union, not for his speech. As Baloga has
not meaningfully briefed or argued his speech claim on appeal,
11
District Court disposed of the association claim (like the
speech claim) on the first element, treating Baloga’s speech
and association as coextensive and concluding that Baloga did
not engage in constitutionally protected activity because his
speech did not involve a matter of public concern. As a result,
it had no need to reach the other arguments raised by the
Defendants. Defendants urge us to affirm on any of those
bases, namely (A) that Baloga’s activity was not
constitutionally protected; (B) that even if it were, Baloga has
not raised a triable issue on the remaining elements of his
retaliation claim; (C) that the record does not support liability
against the District under Monell; or (D) that Serino is entitled
to qualified immunity. We consider these arguments in turn,
beginning with the focus of the parties’ briefing, whether
Baloga’s conduct was constitutionally protected.
A. Element One: Constitutionally Protected
Conduct
Public employees do not surrender their First
Amendment rights merely because they work for the
government. Garcetti v. Ceballos, 547 U.S. 410, 417 (2006);
Baldassare, 250 F.3d at 194. Nevertheless, “[w]hen a citizen
enters government service, the citizen by necessity must accept
certain limitations on his or her freedom.” Garcetti, 547 U.S.
he has waived it. See In re: Asbestos Prods. Liab. Litig. (No.
VI), 873 F.3d 232, 237 (3d Cir. 2017). But even if his passing
references to the free speech claim he raised in the District
Court, e.g., as a “back up” argument, Oral Arg. at 09:45–10:20,
were sufficient to preserve it on appeal, we would agree, for
substantially the same reasons identified by the District Court,
that it does not survive summary judgment.
12
at 418. In the context of speech, the Supreme Court has
demanded that we “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.” Pickering v. Bd. of Educ., 391 U.S.
563, 568 (1968). We therefore undertake a three-prong
inquiry: (1) whether the employee spoke as a citizen; (2)
whether the statement involved a matter of public concern; and
(3) whether the government employer nevertheless had “an
adequate justification for treating the employee differently
from any other member of the general public” based on its
needs as an employer. Palardy, 906 F.3d at 81 (citation
omitted).
As there is no dispute in this case that the first prong is
satisfied, 9 we consider below the second and third, that is, the
public concern requirement and the balance of interests.
1. The Public Concern Requirement
Until recently, our Court had spoken only briefly about
whether the public concern requirement that applies to speech
claims also applies to association claims, and we did so outside
the union context. In Sanguigni v. Pittsburgh Board of Public
Education, a public high school teacher alleged that she had
9
Defendants do not contest the District Court’s finding
that Baloga spoke as a private citizen and not pursuant to his
official duties as an employee. See Garcetti, 547 U.S. at 424;
Palardy, 906 F.3d at 81. Thus, they have waived on appeal
any arguments to the contrary.
13
been retaliated against for criticizing the school administration
in a paragraph of a faculty newsletter. 968 F.2d 393, 395–96
(3d Cir. 1992). In addition to alleging a violation of her
freedom of speech, the teacher claimed that her right to
freedom of association had been violated because the
statements in the newsletter were intended to garner faculty
opposition to the school administration. Id. at 400. After
acknowledging the split among Courts of Appeals on the
question of whether the public concern element applied
generally to freedom of association claims, we found it
unnecessary to enter the fray because Sanguigni’s particular
association claim “implicate[d] associational rights in
essentially the same way and to the same degree” as her free
speech claim and thus was subject to the public concern
requirement applicable to any speech claim. 10 Id. at 400; see
also Gorum, 561 F.3d at 185 n.4 (explaining that application
of the public concern requirement is appropriate where the
“associational claim is linked closely enough with [the] free-
speech claim”).
10
Specifically, we said that Sanguigni’s association
claim was subject to the public concern requirement because
“that claim is based on speech that does not implicate
associational rights to any significantly greater degree than the
employee speech at issue in Connick.” Sanguigni, 968 F.2d at
400. In Connick, an employee circulated a questionnaire to her
colleagues in an apparent effort to solicit their support for her
position with respect to the office’s transfer policy, handling of
grievances, and other matters. See 461 U.S. at 141. But neither
Sanguigni nor Connick concerned union association.
14
In Palardy, however, we observed that in the context of
a pure association claim based on union membership, i.e.,
based on status as a union affiliate and not any particular
speech on behalf of the union, the public concern element is
necessarily satisfied. 906 F.3d at 81–83. There, the plaintiff,
the vice president and then president of his union, alleged that
he was passed over for promotion in the police department
because of his leadership role in the union and his union-related
activities. Id. at 79–80. As here, the district court analyzed
Palardy’s speech and association together and concluded that
Palardy’s activity was not constitutionally protected because
Palardy’s speech did not involve a matter of public concern.
Id. at 80.
We reversed. Where union-related speech forms the
basis of an association claim, we explained, courts must assess
whether the public concern prong is met on a case-by-case
basis. See id. at 83. Indeed, because labor unions advocate for
their members on a multitude of issues, “the number of
possible subjects for union-related speech is similarly wide-
ranging.” Id. But where an association claim is premised on
one’s membership in a union—“a dichotomy” where one is
either a member of a union or one is not—no “justiciable basis”
exists to determine which union association merits First
Amendment protection and which does not. Id. Thus,
consistent with longstanding Supreme Court precedent “that a
public employee possesses a First Amendment right to
associate with a union,” id. (citing Smith v. Ark State Highway
Emp., 441 U.S. 463, 465 (1979)), we recognized that “mere
membership in a public union is always a matter of public
concern,” id. And because Palardy’s association claim was
premised on the notion that he was retaliated against based on
his “involve[ment] in union leadership,” i.e., “simply because
15
of his union membership, and not because of his advocacy on
any particular issue,” we concluded that the public concern
requirement did not stand in the way of that claim. Id. at 79,
81.
Although we spoke in Palardy primarily about union
“membership,” our recognition of the public concern inherent
in union membership applies with particular force to union
leaders, for the right of union membership “would be
meaningless unless an employee’s right to participate in union
activities were also recognized.” Roberts v. Van Buren Pub.
Sch., 773 F.2d 949, 957 (8th Cir. 1985) (citation omitted). As
we said long ago, “[p]lainly efforts of public employees to
associate together for the purpose of collective bargaining
involve associational interests which the first amendment
protects from hostile state action.” Labov v. Lalley, 809 F.2d
220, 222–23 (3d Cir. 1987); see also Smith, 441 U.S. at 464
(“The First Amendment . . . protects the right of associations
to engage in advocacy on behalf of their members.”). And
because a union’s ability to file grievances on behalf of its
members is essential to its collective bargaining power, see
Morfin v. Albuquerque Pub. Sch., 906 F.2d 1434, 1439 (10th
Cir. 1990), retaliation against a union leader for the union’s
decision to file a grievance—as distinct from retaliation based
on the substance of the grievance—constitutes retaliation
based on association rather than on speech per se, see
Columbus Educ. Ass’n v. Columbus City Sch. Dist., 623 F.2d
1155, 1159 (6th Cir. 1980) (“[R]etaliat[ion] against the zealous
representation by a union spokesperson of a member’s
grievance impermissibly infringes upon the constitutional right
of free association . . . .”); see also Prof’l Ass’n of Coll.
Educators (PACE), TSTA/NEA v. El Paso Cty. Cmty. Coll.
Dist., 730 F.2d 258, 262 (5th Cir. 1984) (“[T]he First
16
Amendment [right of association] is violated by state action
whose purpose is either to intimidate public employees from
joining a union or from taking an active part in its affairs or to
retaliate against those who do.”).
Baloga has adduced sufficient evidence to persuade a
reasonable jury that is what occurred here. In addition to the
evidence of Serino’s general animus toward the union and its
leadership, Baloga testified that after he told Serino that union
members were approaching him “as the [union] vice president”
to complain about losing the holiday, JA 40, Serino responded
angrily, “you should have never filed that grievance until you
talked to me,” JA 215 (emphasis added), and Ken Bangs said
that because “you filed a grievance on Martin Luther . . . King
Day . . . you have to work full days on snow days,” JA 212
(emphasis added). But, of course, Baloga was not the person
who actually filed the grievance for the union—union
president Thomas Rome did. Thus, “you” in this context could
only mean “you, as representative of the union.” In other
words, viewing the facts in the light most favorable to Baloga,
Baloga was transferred because his union filed a grievance
and—based on his status as a union leader—management
attributed responsibility for that filing to him. Under Palardy,
that is enough to make out a viable association claim. See 906
F.3d at 84 (holding that “evidence suggesting [Township
administrator] harbored animosity toward [Palardy] because of
his union affiliation” as “a union member and leader” was
sufficient to survive summary judgment).
Defendants take a different view. They contend that, as
in Sanguigni, Baloga’s association claim “implicate[s]
associational rights in essentially the same way and to the same
degree,” 968 F.2d at 400, that his speech claim does, so that the
17
public concern requirement is not per se satisfied and should
be found wanting here. But, as we explained in Palardy, that
view is misplaced in the context of a retaliation claim based on
union membership. Baloga, like Palardy, is arguing not
merely—or even principally—that he was punished for his
speech specific to the subject of the Martin Luther King Jr. Day
holiday but, rather, that he was penalized for his “affiliation”
as “a union member and leader,” Palardy, 906 F.3d at 84, of
the union that had filed this and other grievances. The
substance of that latest grievance is simply irrelevant to his
claim. So understood, Baloga’s association claim
“implicate[s] associational rights” in a different way and to a
different degree than his speech claim, and because union
membership (and, a fortiori, leadership) necessarily involves a
“public concern,” summary judgment should not have been
granted on the ground that this element was lacking.
2. Balance of Interests
Having concluded that the public concern element does
not bar Baloga’s association claim, we consider whether we
may nevertheless affirm on the ground that Baloga’s
associational interests are outweighed by the Defendants’
interest in maintaining an efficient workplace and avoiding
disruption. See Pickering, 391 U.S. at 568; Watters, 55 F.3d at
895. We have not addressed the question whether that so-
called “Pickering balancing” applies to pure association claims
based on union membership and we need not do so today, 11 for
11
Pickering and Watters both involved speech claims,
and, in Palardy, we did not explicitly address whether
Pickering balancing is required for union-based association
claims. Four circuits have concluded or suggested that it is,
18
even assuming it does, Defendants have not established as a
matter of law that their interest outweighs Baloga’s.
A public employer bears the burden of justifying an
adverse action taken against an employee once the public
concern element has been met. See Baldassare, 250 F.3d at
197–98. The weight of this burden “varies depending upon the
nature of the employee’s expression.” Id. at 198. On one side
of the scale is the employee’s interest in associating with and
acting on behalf of the union and the public’s interest in unions
serving the legitimate interests of their employee-members.
See Palardy, 906 F.3d at 84; O’Donnell v. Yanchulis, 875 F.2d
1059, 1061–62 (3d Cir. 1989). On the other side is the
government-employer’s interests in “promoting workplace
efficiency and avoiding workplace disruption.” McGreevy v.
see Cook v. Gwinnett Cty. Sch. Dist., 414 F.3d 1313, 1320–21
(11th Cir. 2005); Boddie v. City of Columbus, 989 F.2d 745,
748–50 (5th Cir. 1993); Roberts, 773 F.2d at 957; see also
Wilton v. Mayor & City Council of Balt., 772 F.2d 88, 91 (4th
Cir. 1985) (not citing Pickering but holding that “a first
amendment right to associate may be validly limited where the
limitation is necessary to a substantial and legitimate state
interest”), but one has held that courts should not undertake
Pickering balancing where the union and the employer have a
collective bargaining agreement, see Shrum v. City of Coweta,
449 F.3d 1132, 1139 (10th Cir. 2006). Here, the parties argue
about the balancing of interests but do not raise or engage the
threshold question whether such balancing is required in this
context. We will assume without deciding that it is required
here as we conclude that the balancing of interests would not
justify summary judgment in any event.
19
Stroup, 413 F.3d 359, 364 (3d Cir. 2005) (citing Pickering, 391
U.S. at 568); see Connick, 461 U.S. at 150.
In balancing the competing interests, we consider
“whether the [First Amendment activity] impairs discipline by
superiors or harmony among co-workers, has a detrimental
impact on close working relationships for which personal
loyalty and confidence are necessary, or impedes the
performance of the [employee’s] duties or interferes with the
regular operation of the enterprise.” Baldassare, 250 F.3d at
198 (quoting Rankin v. McPherson, 483 U.S. 378, 388 (1987)).
This is a “fact-intensive” exercise, Miller, 544 F.3d at 548, and
no single factor is dispositive, Baldassare, 250 F.3d at 198.
Where the material facts are undisputed, the employee’s
association is protected as a matter of law unless the
government’s interest outweighs it. See Azzaro v. Cty. of
Allegheny, 110 F.3d 968, 980 (3d Cir. 1997); O’Donnell, 875
F.2d at 1062.
Defendants identify two interests that they contend
outweigh Baloga’s associational interests: first, that the
District has unfettered discretion concerning when to move
Baloga between the high school and the primary center; and
second, the need to avoid the disruption that Baloga allegedly
caused by bringing down employee morale. On this record,
however, neither suffices to tip the balance in the Defendants’
favor.
As for the first, Defendants can hardly carry their
burden with the tautology that they are entitled to do as they
please in any area normally subject to their discretion. If that
were the case, few retaliation claims would survive Pickering
20
balancing. 12 Although a public institution undoubtedly has an
interest in assigning employees according to its needs, it may
not do so for the purpose of chilling the exercise of
constitutional rights. Instead, in the context of a retaliation
claim, it must articulate and substantiate a legitimate non-
discriminatory reason for its actions. See, e.g., Miller, 544 F.3d
at 548 (including among an employer’s interests “the
employer’s prerogative of removing employees whose conduct
impairs performance” (emphasis added)); Roberts, 773 F.2d at
957 (explaining that an employee’s associational right could be
outweighed by the government’s needs “if the employee
engages in the allegedly protected activities on the job,
interfering with the performance of his duties or if the
employee harasses coworkers and disrupts operations”
(citations omitted)).
A generalized interest in doing business-as-usual does
not constitute such a reason and cannot categorically outweigh
an employee’s interest in associating with a union. This is
particularly true where, as here, the institution asserting such
an interest has explicitly sanctioned the existence of the union
and the grievance procedure it employs by entering into a
collective bargaining agreement. See Shrum, 449 F.3d at 1139
(explaining that a public employer’s interest in efficient
operations does not outweigh an employee’s interest in union
12
To the extent Defendants are arguing not an “interest”
per se, but that they would have transferred Baloga even in the
absence of his protected activity, that argument goes to
causation, see Reilly v. City of Atlantic City, 532 F.3d 216,
232–33 (3d Cir. 2008), which we address separately below, see
infra Section III.B.2.
21
association where the employer “already balanced those
interests when it agreed to a collective bargaining agreement”
and “presumably received the benefit of its bargain”); PACE,
730 F.2d at 263 (“[I]f a public employer voluntarily establishes
a grievance procedure, then discriminates or retaliates against
union members in administering that process, it violates the
first amendment.”); see also Azzaro, 110 F.3d at 980 (“By
adopting a policy against sexual harassment and a process for
reporting and dealing with it, [the] County had affirmatively
recognized that complaints [in accordance with that policy] . . .
do not pose an undue threat of disruption.”).
As for their second proffered interest, the need to avoid
disruption in the workplace is certainly legitimate. See Rankin,
483 U.S. at 388; Dougherty v. Sch. Dist. of Phila., 772 F.3d
979, 991 (3d Cir. 2014). But the scant evidence that
Defendants provide of such disruption or the potential for such
disruption, see Watters, 55 F.3d at 898–99, is not sufficient to
outweigh Baloga’s associational interests. Indeed, Defendants
offer only Serino’s self-serving hearsay testimony that other
employees said Baloga was “bringing the morale . . . down” by
“whining,” JA 102, but adduced no employee testimony or
other evidence that Baloga’s union activities “impair[ed]
discipline” by his superiors, impeded the performance of his
duties, or interfered with the “regular operation of the
enterprise,” Baldassare, 250 F.3d at 198 (quoting Rankin, 483
U.S. at 388); see Swineford v. Snyder Cty. Pa., 15 F.3d 1258,
1273 (3d Cir. 1994) (holding that the government’s interest
outweighed employee’s where the government adduced
evidence that “office conditions became intolerable” and the
employee’s conduct “had an adverse effect on the discharge of
[her] duties”). Nor was Baloga’s relationship with Serino—
which is a “particularly important” consideration in the
22
balancing calculus, Baldassare, 250 F.3d at 198—“of such a
personal and intimate nature” that Baloga’s actions “would
seriously undermine the effectiveness of the working
relationship,” Pickering, 391 U.S. at 570 n.3; see De Ritis v.
McGarrigle, 861 F.3d 444, 458 (3d Cir. 2017) (finding highly
relevant for the purposes of Pickering balancing the
particularized need for strong relationships between employees
and their manager in a small public defender’s office where
employees represented the positions of their supervisor in
court). Our task is to weigh the opposing interests, and given
how little Defendants have placed on their side of the scale,
they have not succeeded in tipping the balance in their favor.
In sum, because Baloga’s union membership involves a
matter of public concern and Defendants have failed to
establish that their purported interests in efficiency and
avoiding disruption outweigh Baloga’s associational interests,
his conduct was protected by the First Amendment, and the
District Court erred in holding otherwise.
B. Remaining Elements of a Retaliation Claim
1. Element Two: Adverse Action
Even assuming Baloga’s conduct was protected,
Defendants argue that summary judgment was justified
because no reasonable jury could find Baloga’s transfer back
to the primary center to constitute an adverse action “sufficient
to deter a person of ordinary firmness from exercising his
constitutional rights.” Appellees’ Br. 41; see Allah v.
Seiverling, 229 F.3d 220, 225 (3d Cir. 2000). We are not
persuaded.
23
Whether a public employer’s conduct rises to the level
of an actionable wrong is “a fact intensive inquiry focusing on
the status of the [employee], the status of the retaliator, the
relationship between the [employee] and the retaliator, and the
nature of the retaliatory acts.” Brennan v. Norton, 350 F.3d
399, 419 (3d Cir. 2003) (emphasis omitted) (quoting Suarez
Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)).
A public employer “adversely affects an employee’s First
Amendment rights . . . when it makes decisions, which relate
to . . . transfer . . . based on the exercise of an employee’s First
Amendment rights.” Id. (emphasis added) (quoting Suarez
Corp. Indus., 202 F.3d at 686).
Although the nature of the retaliatory acts committed by
the public employer must “be more than de minimis,”
amounting to more than “criticism, false accusations, or verbal
reprimands,” id. (citation omitted), the threshold is “very low,”
O’Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006).
Indeed, we have observed that “an act of retaliation as trivial
as failing to hold a birthday party for a public employee . . .
when intended to punish her for exercising her” First
Amendment right may suffice. Suppan, 203 F.3d at 234
(quoting Rutan v. Republican Party of Ill., 497 U.S. 62, 76 n.8
(1990)).
In this case, Defendants urge that “any alleged adverse
effect on Baloga due to his transfer was de minimis.”
Appellees’ Br. 42. But a reasonable juror could conclude
otherwise. Baloga testified that, due to his transfer being
expedited and then effectively deemed permanent, he could no
longer go home during his lunch hour approximately three
months every year to help his wife with childcare
responsibilities, and he could no longer work the shift that
24
allowed him to go home early from the high school at least
once a month. He also attested to consequences for his actual
job responsibilities and reputation: whereas he engaged in a
number of “big projects” at the high school, he had no
significant work to do at the primary center during the winter
months because the fields were covered in snow, “reduc[ing
him] to a mop and a broom.” JA 38. We cannot say as a matter
of law, then, that the alleged retaliation had no “adverse effect”
for, viewed in the light most favorable to Baloga, the record
supports the opposite inference. 13 See Suppan, 203 F.3d at
234–35 (holding that evidence of “stress” and “loss of
reputation” from an unsatisfactory employment rating was
sufficient to raise triable issue on adverse action); see also
Cook v. Gwinnett, 414 F.3d 1313, 1318 (11th Cir. 2005)
(deeming “los[s] [of] additional prestige and office
responsibilities that came with being a team leader” sufficient
to constitute adverse action); Leary v. Daeschner, 349 F.3d
888, 901 (6th Cir. 2003) (holding reputational harm stemming
from involuntary transfer “from one school in the district to
another” demonstrated sufficient adversity).
13
In support of their argument, Defendants make much
of the fact that the union itself continued to file grievances after
Baloga’s transfer. But the question here is not whether a union
can operate after one of its members is retaliated against but
whether an ordinary union member would be deterred from
exercising his or her associational rights in the face of that
retaliation. And given the “very low” threshold for that
showing in the First Amendment retaliation context,
O’Connor, 440 F.3d at 128, Baloga has put forth sufficient
evidence to bring that question to a jury.
25
2. Element Three: Causation
Defendants next argue that they are entitled to summary
judgment based on Baloga’s failure to prove the third element
of a retaliation claim, causation. Yet again, however, there
remain disputed issues of material fact.
If a public employee makes out the first two elements
of a retaliation claim, he then bears the initial burden of
showing that his constitutionally protected conduct was a
“substantial” or “motivating factor” in the allegedly retaliatory
conduct. Suppan, 203 F.3d at 235. He can establish the
requisite causal connection by showing either: “(1) an
unusually suggestive temporal proximity between the
protected activity and the allegedly retaliatory action, or (2) a
pattern of antagonism coupled with timing to establish a causal
link.” 14 Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d
259, 267 (3d Cir. 2007) (citation omitted). If the employee
makes out this prima facie case of retaliation, “the burden shifts
to the [employer] to show by a preponderance of the evidence
that it would have reached the same decision even in the
absence of the protected conduct.” Suppan, 203 F.3d at 235
(internal quotation marks and citation omitted). In view of the
standard at summary judgment, that means that an employer,
to prevail on causation, “must present evidence of such quality
that no reasonable juror could conclude that the protected
14
We have also observed that if such evidence is
lacking, an employee may nevertheless prove causation “from
the evidence gleaned from the record as a whole.” Conard v.
Pa. State Police, 902 F.3d 178, 184 (3d Cir. 2018) (quoting
Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016)).
26
activity was the but-for cause of the termination.” Hill v. City
of Scranton, 411 F.3d 118, 126 n.11 (3d Cir. 2005).
Here, Defendants do not dispute that Baloga put
forward sufficient evidence to make out a prima facie case of
causation. 15 Rather, they argue that they have met their burden
15
This apparent concession is with good reason: The
record contains ample evidence from which a reasonable juror
could conclude that a causal link existed between Baloga’s
union activities and his transfer—either because “an unusually
suggestive temporal proximity,” Lauren W., 480 F.3d at 267,
existed between when the union filed the Martin Luther King
Jr. Day grievance, when Serino approached Baloga about the
grievance, and when Baloga was transferred to the primary
center, given that all of the events occurred within the span of
one week, see Shellenberger v. Summit Bancorp, Inc., 318 F.3d
183, 189 (3d Cir. 2003) (explaining that temporal proximity
can itself be sufficient to establish a causal link) or because of
the combination of the temporal proximity and the evidence of
Serino’s animus toward the union more generally, see id.
(holding that an employee who was terminated 10 days after
engaging in protected conduct and whose boss had made
negative comments about her protected conduct had put forth
sufficient evidence from which a fact finder could determine
the existence of a causal link); see also Merkle v. Upper Dublin
Sch. Dist., 211 F.3d 782, 795 (3d Cir. 2000) (“Where a
reasonable inference can be drawn that an employee’s
[protected conduct] was at least one factor considered by an
employer in deciding whether to take action against the
employee, the question of whether the [protected conduct] was
27
to show they would have transferred Baloga to the primary
center in the absence of his protected conduct for two reasons:
first, because they transferred him every year, and second,
because it is undisputed that the District had hired more
employees to work at the high school that school year, thereby
obviating the need for Baloga to continue working there.
True though they may be, however, neither of those
facts precludes a reasonable jury, considering the record as a
whole, from finding causation. That the Defendants intended
to transfer Baloga at some point in the future does not logically
rebut Baloga’s point that his union activity was the cause of his
accelerated and apparently permanent transfer, which is the
adverse action at issue. Nor is the fact that the District had
hired more employees dispositive of whether it otherwise
would have transferred Baloga at that time. To the contrary,
the record reflects that, although one new hire was slated to
begin work the Monday that Baloga was transferred, some, if
not all, of the new employees were hired in March or April of
2015, 16 i.e., well before Baloga was even assigned to the high
school, let alone transferred away from it. And at no point
before this transfer was Baloga advised that his rotation to the
high school would be any shorter than usual or that his job
duties there were being assumed by others. Viewed in the light
a motivating factor in that determination is best left to the
jury.”).
16
The record is not clear if the District hired two or three
additional employees and, if three, when the third employee
was hired. But even the employee who began in late-January
was necessarily hired before that time.
28
most favorable to Baloga, this sequence supports an inference
that, notwithstanding the new hires, the District assigned
Baloga to the high school in January 2016 with the expectation
that he would complete his normal two-to-three month
rotation, and that retaliation, not a new hire, accounted for its
sudden change of heart just three weeks into that assignment
and on the very day of Baloga’s conversation with Serino.
Other evidence also arguably supports that inference.
As the District Court itself recognized, the “temporal
proximity” between the union’s filing of the Martin Luther
King Jr. Day grievance and Baloga’s transfer was “somewhat
suggestive of a retaliatory motive.” JA 8. And, likewise, the
temporal proximity—mere hours—between Baloga’s
exchange with Serino in which Serino expressed anger over
Baloga’s “complaining” and threatened to “transfer [him]
today,” JA 215, and Baloga’s being notified of his transfer
effective the next business day raises questions about the
credibility of Defendants’ explanation for their actions, cf.
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280–81 (3d
Cir. 2000) (explaining that temporal proximity between an
employee’s protected conduct and the employer’s adverse
action coupled with inconsistent reasons given for the action
can call into doubt the employer’s stated basis for the action).
Also potentially probative to a jury are Serino’s and Bang’s
alleged threats of reprisal for the union’s activities, the
testimony about Serino’s general anti-union animus, and the
myriad conflicting accounts about Appellees’ motivation for
Baloga’s transfer in Serino’s testimony, Rome’s testimony,
and Bangs’ testimony.
While the District Court concluded that factors such as
the transitory nature of Baloga’s transfers and the fact of new
29
hires precluded summary judgment in Baloga’s favor, it also
recognized that the motivation for Baloga’s transfer (were it to
reach the question of causation) was “far from clear,” JA 8,
and, in view of the countervailing evidence, we must agree.
Because a trier of fact could conclude on this record that
Baloga would not have been transferred in the absence of his
union activities, the quintessential “factual issue” of causation,
Green v. Phila. Hous. Auth., 105 F.3d 882, 889 (3d Cir. 1997),
remains, in this case, a question for the jury.
C. Monell Liability
The District next argues that even if Baloga can
establish a constitutional violation, the District itself could not
be held liable because there is no evidence that any municipal
policy or custom caused that violation. See Monell, 436 U.S.
at 690–91. A municipality may be held liable pursuant to 42
U.S.C. § 1983 only if a plaintiff is able to identify such a policy
or custom. See A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile
Det. Ctr., 372 F.3d 572, 580 (3d Cir. 2004). That requires a
plaintiff to show, for a policy, that an official with final
decision-making authority has “issue[d] an official
proclamation, policy, or edict,” Andrews v. City of Phila., 895
F.2d 1469, 1480 (3d Cir. 1990), or, for a custom, that a course
of conduct, though not authorized by law, was “‘so permanent
and well settled’ as to virtually constitute law,” id. (quoting
Monell, 436 U.S. at 690). In either case, the policymaker, as
defined under state law, must be “responsible either for the
policy or, through acquiescence, for the custom.” Andrews,
895 F.2d at 1480–81.
We agree with the District Court that the record here
does not support Monell liability. As Baloga’s repeated
30
invocation of Superintendent Kevin Booth’s authority
demonstrates, Serino did not have final decision-making
authority and thus was not a policymaker under Pennsylvania
law. See Brennan, 350 F.3d at 428 (“[I]f a municipal
employee’s decision is subject to review, even discretionary
review, it is not final and that employee is therefore not a
policymaker for purposes of imposing municipal liability
under § 1983.”). There is also no evidence that those who do
qualify as policymakers, such as Booth or the school board,
knew about, much less approved, Baloga’s transfer for an
allegedly unconstitutional reason or delegated him final
policymaking authority, as needed to impute liability to the
municipality. See Andrews, 895 F.2d at 1481. On that basis,
we will affirm the District Court’s grant of summary judgment
to the District.
D. Qualified Immunity
Finally, Defendants argue that summary judgment was
proper as to Serino because he is entitled to qualified
immunity. The doctrine of qualified immunity shields
government officials performing discretionary functions “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.” Miller, 544
F.3d at 547 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). The analysis is guided by two questions: (1) did the
government actor violate a constitutional right? and (2) was
that right “clearly established” at the time of the challenged
conduct? See Dougherty, 772 F.3d at 986. As Baloga has
raised a triable issue concerning the violation of his First
Amendment right to association, our analysis here focuses on
the second prong of the qualified immunity analysis.
31
For a right to be clearly established, “there must be
sufficient precedent at the time of action, factually similar to
the plaintiff’s allegations, to put defendant on notice that his or
her conduct is constitutionally prohibited.” Mammaro v. N.J.
Div. of Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir.
2016) (citation omitted). Although the right at issue may not
be defined “at a high level of generality,” Ashcroft v. al-Kidd,
563 U.S. 731, 742 (2011), the precise action in question “need
not have previously been held unlawful” for the right to be
clearly established. Dougherty, 722 F.3d at 993 (citing
Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also
Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[O]fficials can still
be on notice that their conduct violates established law even in
novel factual circumstances.”). Where there is neither
Supreme Court nor circuit precedent on point, “a robust
consensus of cases of persuasive authority” may establish the
federal right at issue. al-Kidd, 563 U.S. at 742 (citation
omitted).
Here, Defendants contend that Serino is entitled to
qualified immunity because “[t]here is no clearly established
case law . . . that stands for the [proposition] that . . . a grievance
about a day off[] constitutes constitutionally protected . . .
association.” Appellees’ Br. 51. But Defendants
misunderstand the right at issue. Viewing the facts in the light
most favorable to Baloga, Serino retaliated against Baloga
because he ascribed to him responsibility for the union’s
grievance based on his leadership of the union. Thus, the right
at issue is a public employee’s right not to be subjected to
adverse treatment for his leadership role in a public union—
not, as Defendants contend, for the content of the grievance
that the union filed.
32
Once the right at issue is properly identified, it is
apparent that “[t]he contours of [that] right,” Anderson, 483
U.S. at 640, were clearly established when Serino ordered
Baloga’s transfer. The Supreme Court has long recognized the
right to become a member of a union and the attendant right
not to be penalized for that membership. See, e.g., Smith, 441
U.S. at 465 (“The First Amendment . . . protects the right of
associations to engage in advocacy on behalf of their members
[and] [t]he government is prohibited from infringing upon [this
right] either by a general prohibition against certain forms of
advocacy or by imposing sanctions for the expression of
particular views it opposes.”) (citations omitted); N.L.R.B. v.
Gissel Packing Co., 395 U.S. 575, 618 (1969) (“[A]n employer
is free to communicate to his employees any of his general
views about unionism or any of his specific views about a
particular union, so long as the communications do not contain
a ‘threat of reprisal . . . .’”); Thomas v. Collins, 323 U.S. 516,
532 (1945) (holding that a state may regulate labor unions but
“[s]uch regulation . . . must not trespass upon the domain set
apart for . . . free assembly”).
So have we and other Courts of Appeals. See, e.g.,
Labov, 809 F.2d at 222–23 (“Plainly efforts of public
employees to associate together for the purpose of collective
bargaining involve associational interests which the first
amendment protects from hostile state action.”); Cook, 414
F.3d at 1320 (“[T]he law is clearly established that public
employees have a First Amendment right to engage in
associative activity without retaliation . . . [and] courts have
long held that freedom of association protection extends to
membership in organizations such as labor unions.”) (citations
omitted); Morfin, 906 F.2d at 1439 (“The unconstitutionality
of retaliating against an employee for participating in a union
33
[is] clearly established . . . .”); Boals v. Gray, 775 F.2d 686,
693 (6th Cir. 1985) (“We have no doubt that an employee who
is disciplined solely in retaliation for his membership in and
support of a union states a valid first amendment claim . . . .”);
PACE, 730 F.2d at 262 (“Th[e] right of association
encompasses the right of public employees to join unions and
the right of their unions to engage in advocacy and to petition
government in their behalf.”).
Given this “robust consensus,” al-Kidd, 563 U.S. at
742, we have no difficulty concluding that Baloga’s right not
to face retaliation for his leadership role in a public union was
clearly established at the relevant time and, thus, Serino is not
entitled to qualified immunity. 17
IV. Conclusion
For the foregoing reasons, we will affirm in part and
reverse in part the District Court’s order granting summary
judgment and will remand for further proceedings consistent
with this opinion.
17
Defendants also weakly suggest that it was not clearly
established in 2016 that a public employer’s retaliatory transfer
would be actionable if it did not affect the employee’s pay. The
case law is to the contrary. See Rutan, 497 U.S. at 74–75, 75
n.8; Brennan, 350 F.3d at 419; Suppan, 203 F.3d at 234.
34