                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-4-2000

Suppan v. Dadonna
Precedential or Non-Precedential:

Docket 98-2129




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Filed February 4, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-2129

RICHARD SUPPAN; GLENN KERRIGAN;
GERALD DIETER; JAMES BOWSER
Appellants

v.

JOSEPH DADONNA; WAYNE STEPHENS;
GERALD MONAHAN, JR.; HAROLD BOYER;
RONALD MANESCU; SCOTT MITCHELL;
DENNIS TROCOLLA; MICHAEL COMBS;
THE CITY OF ALLENTOWN

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 95-cv-05181)
District Judge: Honorable Louis H. Pollak

Argued September 13, 1999

BEFORE: MANSMANN, McKEE and STAPLETON,
Circuit Judges

(Opinion Filed: February 4, 2000)

       Richard J. Orloski
       Stephen D. Rhoades (Argued)
       Orloski, Hinga & Pandaleon
       111 North Cedar Crest Boulevard
       Allentown, PA 18104
        Attorneys for Appellants




       Edward H. Feege
       Jeffrey M. Zinskind (Argued)
       Stevens & Lee
       P.O. Box 20830
       Lehigh Valley, PA 18002-0830
        Attorneys for Appellees
       Daddona, Monahan, Boyer,
       Mitchell, Combs and the City of
       Allentown

       James T. Huber
       Gavin P. Holihan (Argued)
       Huber and Waldron
       535 Hamilton Mall, Suite 301
       Allentown, PA 18101
        Attorneys for Appellees
       Stephens, Manescu and Trocolla

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Plaintiffs/Appellants are police officers employed by the
City of Allentown ("the City"). The defendants are the City
and the high-ranking police officers who were involved in
evaluating plaintiffs for promotion. Plaintiffs brought suit
under 42 U.S.C. SS 1983 and 1985(3), alleging that the
defendants violated their civil rights by, inter alia, not
promoting them to sergeant in retaliation for their exercise
of First Amendment rights, specifically their union activities
and their support for a particular mayoral candidate.
Plaintiffs each sought injunctive relief ordering their
promotion to sergeant and damages. Defendants filed a
motion for partial summary judgment on plaintiffs' claims
for failure to promote, in which they accepted as true all of
the factual averments in the plaintiffs' complaint, but
asserted that they were entitled to judgment as a matter of
law on the basis of an affidavit of William Heydt, mayor of
Allentown, stating that during the relevant time period, no
permanent promotions were made. The District Court

                               2


granted the defendants' motion and this appeal ultimately
followed.1

I. The Facts

The following facts are taken as true for purposes of our
review. Throughout 1993, the Queen City Lodge No. 10 of
the Fraternal Order of Police (the FOP) and the City were
attempting to negotiate a new collective bargaining
agreement. All four plaintiffs were members of the FOP
negotiating team and were significantly involved in union
leadership, a fact of which defendants were aware.
Throughout the 1993 contract negotiations, the relationship
between defendant Stephens, then Chief of Police, and the
FOP was very strained, culminating in defendant Stephens
and ten of his Command Staff Officers, including
defendants Monahan (Assistant Chief of Police), Manescu
(Captain of Police), Trocolla (a police lieutenant) and Combs
(another lieutenant), resigning from active FOP
membership. In late September 1993, one month before the
commencement of the promotional process at issue here,
the FOP, having previously rejected five of the City's
contract proposals during 1993, declared a total impasse
and elected to pursue arbitration.

In March 1992, plaintiff Suppan requested a transfer
from steady night patrol. Chief Stephens, in the presence of
defendants Monahan, and Boyer, Deputy Assistant Chief of
Police, responded by chastising plaintiff Suppan: "Your
problem is that you are a frustrated FOP lawyer, and as
long as you want to assist a bunch of losers with your labor
knowledge, you'll lose." (A. 97). In May 1993, defendant
Monahan stated in front of all parties that "The FOP will
_________________________________________________________________

1. Plaintiffs' complaint alleged a campaign of retaliatory harassment that
resulted in "mental anxiety . . . stress, humiliation, loss of reputation
and sleeplessness" as well as loss of promotion. (A. 107). Plaintiff James
Bowser also alleged that he had been demoted in retaliation for his First
Amendment activity. The defendants moved for a partial summary
judgment limited to the failure to promote claims only. The District
Court nevertheless entered summary judgments on all claims of the
plaintiffs other than plaintiff Bowser's retaliatory demotion claim. That
claim was ultimately settled and a final order entered.

                               3


not dictate how the department will be run." (A. 99). In
September 1993, one month before the commencement of
the promotional process at issue here, defendant Stephens
said to plaintiff Suppan, "I'm getting sick and tired of you
and your negotiating team trying to run this department.
You don't run it, I do! You had a career here." (A. 97
(emphasis added)).

Plaintiffs were also outspoken supporters of then mayoral
candidate William Heydt. Heydt's opponent, John
Pressman, was a friend of defendants Stephens, Monahan
and Manescu. In September 1993, defendant Stephens
stated, "I have a sweet deal set up when John Pressman
takes over." (A. 100-01). In late September 1993, the local
paper ran a story stating that the FOP had endorsed Heydt.
The paper also reported that plaintiff Dieter had hinted that
a change of Chief of Police might be in the offing if Heydt
were elected. Defendant Stephens waged a successful
campaign to rescind the endorsement.

General Order 309 set forth the criteria and procedure for
determining eligibility for promotion in the Allentown Police
Department. All officers with a minimum of five years
experience were eligible to participate in the evaluation
process for promotion to sergeant. Officers submitting to
the evaluation process were then ranked on a "promotion
eligibility list." Promotion eligibility lists were effective for
two years. For general positions, the Chief of Police was
permitted to select any one of the top three candidates on
the list for promotion, but could pass over a candidate only
twice before that officer became entitled to the next
available position.

Plaintiffs, having the requisite five years experience,
participated in the evaluation process in October 1993. In
November 1993, they were notified of their rankings on the
promotion eligibility lists for two potential positions: patrol
sergeant and investigative sergeant. In accordance with
General Order 309, these lists were effective from January
1994 to December 1995. Out of thirty-six names on each
list, plaintiff Kerrigan ranked highest of all the plaintiffs at
twenty-eight on both lists. Plaintiff Suppan was thirtieth on
the patrol sergeant list and thirty-first on the investigative

                               4


sergeant list; plaintiff Dieter was thirty-third on both lists;
and plaintiff Bowser was thirty-fourth on both lists.

Candidates for promotion were ranked according to a
combined score that accounted for two weighted factors:
20% based on seniority and 80% based on an oral
interview. Plaintiffs Kerrigan and Suppan were entitled to
the maximum possible credit for seniority, which was 20
points. Plaintiffs Dieter and Bowser were entitled to sixteen
and fourteen seniority points respectively.

The Promotional Interview/Evaluation form allows the
lowest score to be a four. Defendant Stephens intentionally
gave plaintiffs Suppan and Dieter less than four on
numerous items in violation of the rules. Defendant Boyer
also downgraded plaintiffs, giving scores of less than four.
Defendants Monahan and Manescu did not violate the
scoring procedure, but alleged insignificant incidents as a
basis for their low scores. Plaintiffs had never been
disciplined or counseled for these incidents. Defendants
Monahan, Manescu and Mitchell admit that they rated
plaintiff Kerrigan low because of his actions as President of
the FOP when he alleged wrongdoing by a police captain.
Defendant Manescu also has testified that he rated plaintiff
Dieter low because he got a fellow officer in trouble by
reporting that the officer struck a suspect on the head with
a flashlight.

The night before the interviews, defendant Stephens
telephoned defendant Combs and instructed him what
grades to give the applicants under his command. Plaintiffs
Suppan and Bowser were to receive threes and fours.
Although he did not give threes and fours, defendant
Combs gave consistently low scores, which he admits did
not accurately reflect his opinion of plaintiffs' abilities, but
rather reflected his instructions from defendant Stephens.
The candidates who were ranked first and second on
both Sergeants lists had had severe disciplinary action
taken against them within the two-year period preceding
the evaluations, while plaintiffs Suppan, Bowser and Dieter
have never been disciplined during their entire careers, and
plaintiff Kerrigan has never been justifiably disciplined.
Plaintiff Suppan has received many accolades from

                               5


superiors and above-average personnel evaluations during
his eleven and one half years on the police force.

In December 1993, before the promotion lists became
effective, Queen City Lodge No. 10 of the Fraternal Order of
Police, the bargaining agent for members of the Allentown
police force, filed an unfair labor practice charge with the
Pennsylvania Labor Relations Board (PLRB) alleging that
the sergeant's promotion lists were compiled in the midst of
labor/management negotiations over a new collective
bargaining agreement and that the rankings assigned to
members of the union negotiating team reflected anti-union
discrimination and retaliation.2 In January 1994, while the
PLRB proceedings were still pending, a new mayor, William
Heydt, took office. No permanent promotions were made
during the effective period of the promotion lists. Heydt
explains that this was in part due to his belief that the
Allentown Police Department had too many officers in
management and not enough officers on patrol, and in part
due to the PLRB proceedings, which made it inadvisable to
promote from the "tainted" sergeants promotions lists.
Heydt also believed that the promotion lists were the result
of unfair evaluations based on nepotism and favoritism
rather than merit.

II. The Merits Issues

The District Court held that even if plaintiffs' ranks on
the promotion list were lowered in retaliation for their
exercise of First Amendment rights, there could be no
recovery on their failure to promote claim. In the Court's
view, it is impossible for the plaintiffs to prove that they
would have been promoted in the absence of the alleged
retaliation because there is no way to prove, assuming the
alleged retaliation had not occurred, (1) how many, if any,
_________________________________________________________________

2. Although in October 1996 the PLRB found that the City had violated
the Pennsylvania Labor Relations Act with regard to plaintiffs Kerrigan
and Suppan (but not plaintiffs Dieter and Bowser), on appeal to the
Commonwealth Court of Pennsylvania, the case was dismissed as moot
because the promotion lists had expired and no promotions had been
made from the lists during their effective period. (Brief for defendants
Daddona et al., Att. 2).

                               6


promotions would have been made from the list; and (2)
whether plaintiffs would have ranked high enough to get
promoted. Because no causal connection can be shown
between the retaliatory ranking and the absence of
promotion, the Court held that the plaintiffs have suffered
no actionable deprivation of rights.

We conclude that summary judgment was
inappropriately entered against the plaintiffs for two
independent reasons. First, if the defendants deliberately
lowered the plaintiffs' scores because of their exercise of
their First Amendment rights, a constitutional violation
occurred at that time for which relief may be appropriate
even if the plaintiffs are not entitled to relief on their failure
to promote claim. Second, there is evidence in the record
that could support an award of compensation on plaintiffs'
failure to promote claim.

III. The Threshold Issue - Collateral Estoppel

Defendants Daddona, Monahan, Boyer, Mitchell and the
City assert that the plaintiffs are collaterally estopped from
contesting both these issues. As to plaintiffs Kerrigan,
Dieter and Bowser, this argument is plainly without merit.
Due process requires that a party against whom collateral
estoppel is asserted have "some fair relationship with the
prior litigation relied upon." See Moldovan v. Great Atlantic
& Pacific Tea Co., Inc., 790 F.2d 894, 899 (3d Cir. 1986).
None of these three were parties to the prior action to
which the defendants assign preclusive effect. See Suppan
v. City of Allentown, No. CIV. A. 97-2102, 1997 WL 476359
(E.D. Pa. 1997) (hereinafter "Suppan I"). Furthermore, that
case involved an entirely different set of promotion lists
than the ones at issue here, and the plaintiff 's cause of
action was based on alleged retaliatory adoption of a new
seniority policy that adversely affected the plaintiff, which is
not the same retaliatory conduct at issue here. See id. at
*1-2. The mere fact that plaintiffs Kerrigan, Dieter and
Bowser are now co-plaintiffs with a party to the prior action
and are represented by the same counsel is not sufficient to
make them privies to the prior action.

Moreover, even as to plaintiff Suppan, the defendants
have not met their burden of establishing an identity of

                               7
issues between the cases. "Identity of the issue is
established by showing that the same general legal rules
govern both cases and that the facts of both cases are
indistinguishable as measured by those rules." 18 Wright et
al., Federal Practice & Procedure S 4425, at 253 (1981). The
party seeking to effectuate an estoppel has the burden of
demonstrating the propriety of its application. See Chisolm
v. Defense Logistics Agency, 656 F.2d 42, 50 (3d Cir. 1981).
The defendants have relied entirely on the District Court's
opinion to establish which issues were litigated in the prior
case. See Suppan I, 1997 WL 476359. That opinion does
not establish that the Court considered the same issues
presented here.

As noted, Suppan I involved subsequent promotion lists
and different acts of alleged retaliation on the part of the
defendants. Moreover, the Suppan I Court considered
whether a change in the seniority policy that resulted in the
plaintiff 's low ranking could by itself support a First
Amendment retaliation claim. See id. That issue is not
before us. In the instant case, what we must decide is
whether a campaign of harassment, including threatening
statements and culminating in a retaliatory low ranking
that purports to be based on an assessment of the
plaintiffs' qualifications, and that results in"mental
anxiety, . . . stress, humiliation, loss of reputation, and
sleeplessness," is an actionable First Amendment violation.
(A. 107). The injuries that result from a low-ranking based
on lack of seniority and a low-ranking based on
qualifications are not "indistinguishable" in the context of
First Amendment retaliation. For example, there is no
indication in the Suppan I opinion that the plaintiff there
had suffered humiliation and loss of reputation as a result
of his low-ranking. Moreover, a low-ranking on the list "by
itself " is distinguishable from a series of retaliatory
incidents including threats and culminating in a low-
ranking. Given that it is generally a question of fact
whether a retaliatory campaign of harassment has reached
the threshold of actionability under S 1983, see Bart v.
Telford, 677 F.2d 622, 625 (7th Cir. 1982), we cannot say
that these differences are legally insignificant.

Suppan I also determined that the plaintiff 's claim for
retaliatory failure to promote was not ripe for decision

                               8


where, for reasons having nothing to do with the plaintiff 's
protected conduct or the defendants' alleged retaliation (i.e.,
the plaintiff's poor performance on an objective exam), the
plaintiff would not be eligible for promotion until eighteen
promotions had been made. See Suppan I, 1997 WL
476359, at *5-8. Put differently, the issue in Suppan I was
whether the plaintiff 's failure to promote claim was viable
in light of undisputed evidence of an intervening and
superceding cause for the plaintiff 's not having been
promoted. In contrast, the second issue presented in the
instant case is whether the plaintiffs have viable failure to
promote claims where there is evidence that the plaintiffs'
protected conduct and the defendants' retaliation were
substantial factors in each step of the decision-making
process, and where therefore there was no independent and
superceding cause. Therefore, because the instant case
involves different legal issues that arise in a different
factual context, none of the plaintiffs claims are collaterally
estopped.

IV. The Violation

Because the plaintiffs were unable to prove that they
would have been promoted in the absence of the retaliatory
low ranking, this left them, in the District Court's view,
"with only the argument that their low rankings .. . alone
can support a S 1983 claim for retaliation if they can prove
that the rankings resulted from defendants' alleged bias
against them for engaging in protected conduct." Suppan v.
Daddona, No. CIV. A. 95-5181, 1996 WL 592644, at *7
(E.D. Pa. Oct. 15, 1996). The District Court concluded that
this claim was "too insubstantial to support the deprivation
of rights element of a S 1983 claim."3 Id. We disagree.
_________________________________________________________________

3. The District Court cited Ferraro v. City of Long Branch, 23 F.3d 803
(3d Cir. 1994), as supporting this conclusion. See Suppan, 1996 WL
592644, at * 8. It is inapposite. Ferraro was not a First Amendment
retaliation case; it addressed whether an adverse change in working
conditions deprived an employee of a property interest in employment in
violation of the due process clause. See Ferraro, 23 F.3d at 804. Because
the plaintiff conceded that he had not been deprived of his job or
suffered any loss of pay or benefits, the court concluded he had not been

                               9


In Rutan v. Republican Party, 497 U.S. 62 (1990), the
Supreme Court held "that promotions, transfers, and
recalls after layoffs based on political affiliation or support
are an impermissible infringement on the First Amendment
rights of public employees." Id. at 75. In the course of its
opinion, the Court rejected the argument that the First
Amendment rights of the public employees had "not been
infringed because they [had] no entitlement to promotion,
transfer, or rehire." Id. at 72. Relying on Perry v.
Sinderman, 408 U.S. 593 (1972)(teacher's lack of
contractual or tenure rights to reemployment is immaterial
to his First Amendment claim), the Court found the lack of
legal entitlement "beside the point" in a First Amendment
case. Rutan, 497 U.S. at 72.

The Court then turned to the argument that the
employee's First Amendment rights were not violated
because the retaliatory decisions did "not in any way
adversely affect the terms of employment, and therefore
[did] not chill the exercise of protected belief and
association." Id. at 73. The Court responded:

       This is not credible. Employees who find themselves in
       dead-end positions due to their political backgrounds
       are adversely affected. They will feel a significant
       obligation to support political positions held by their
       superiors, and to refrain from acting on the political
       views they actually hold, in order to progress up the
       career ladder.

Id.

The Supreme Court went on to observe that "the First
Amendment . . . protects state employees not only from
patronage dismissals but also from `even an act of
retaliation as trivial as failing to hold a birthday party for a
public employee . . . when intended to punish her for
_________________________________________________________________

deprived of a property interest that could support aS 1983 claim based
on the Fourteenth Amendment. See id. at 806-07. Similarly, the district
courts' reliance on Mark v. Borough of Hatboro, 51 F.3d 1137 (3d Cir.
1995), is equally misplaced. The Mark plaintiff's S 1983 action was based
on alleged violations of substantive due process; it was not a retaliation
case. See Mark, 51 F.3d at 1141.

                               10


exercising her free speech rights.' " Id. at 76 n. 8 (quoting
Rutan v. Republican Party, 868 F.2d 943, 954 n. 4 (7th Cir.
1989).

Under the teachings of Rutan, we believe that a trier of
fact could determine that a violation of the First
Amendment occurred at the time of the rankings on the
promotion list and that some relief is appropriate even if
plaintiffs cannot prove a causal connection between the
rankings and the failure to promote. The plaintiffs'
complaint alleges a campaign of retaliatory harassment
culminating in the retaliatory rankings and asserts that the
defendants' conduct resulted in "mental anxiety, . . . stress,
humiliation, loss of reputation, and sleeplessness" as well
as loss of promotion. (A. at 107). Accepting as true the facts
alleged in the complaint, as the District Court was required
to do in light of defendants' stipulation, the District Court
erred in concluding that there has been no actionable First
Amendment violation for which relief would be appropriate.

We find the observation of the Court in Bart v. Telford,
677 F.2d 622 (7th Cir. 1982) appropriate here. The plaintiff
there had allegedly been the victim of a "campaign of petty
harassments . . . motivated by her [political] views," a
retaliation less serious in our view than the one alleged
here. Id. at 625. In remanding for a trial on the merits, the
Bart Court observed:

       The effect on freedom of speech may be small, but
       since there is no justification for harassing people for
       exercising their constitutional rights it need not be
       great in order to be actionable. Yet even in thefield of
       constitutional torts de minimis non curat lex. Section
       1983 is a tort statute. A tort to be actionable requires
       injury. It would trivialize the First Amendment to hold
       that harassment for exercising the right of free speech
       was always actionable no matter how unlikely to deter
       a person of ordinary firmness from that exercise-- that
       if the Mayor of Springfield had frowned at Miss Bart for
       running for public office he would be liable for
       damages (unprovable, of course) under section 1983.
       See Raymon v. Alvord Indep. Sch. Dist., 639 F.2d 257
       (5th Cir. 1981); cf. Walsh v. Louisiana High School
       Athletic Ass'n, 616 F.2d 152, 158 (5th Cir. 1980).

                                11


       However, more is alleged here -- an entire campaign of
       harassment which though trivial in detail may have
       been substantial in gross. It is a question of fact
       whether the campaign reached the threshold of
       actionability under section 1983.

Id.

Similarly, we conclude that a factfinder in this case could
determine that the alleged retaliatory conduct was sufficient
"to deter a person of ordinary firmness" from exercising his
First Amendment rights and that some relief may be
appropriate.

V. Causation and the Extent of Relief

If the trier of fact determines that a violation of the
plaintiffs' First Amendment rights occurred at the time the
promotion list was prepared, the plaintiffs are entitled to
relief with respect to any injury or loss that resulted. This
should include relief with respect to the loss of promotions
if the requisite causal connection is shown. We believe the
District Court's conclusion that it is impossible to establish
the requisite causation overlooked relevant record evidence
and misallocated the burden of proof.

In a First Amendment retaliation case, the plaintiff has
the initial burden of showing that his constitutionally
protected conduct was a "substantial" or "motivating factor"
in the relevant decision. Mount Healthy, 429 U.S. at 287
(citing Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252, 270-71 & n.21 (1977)).
Once the plaintiff carries this burden, the burden shifts to
the defendant to show "by a preponderance of the evidence
that it would have reached the same decision even in the
absence of the protected conduct." Id. In adopting this
framework, the Mount Healthy Court explained the
rationale for providing the employer with the opportunity to
prove it would have reached the same decision in the
absence of retaliation:

       [a] rule of causation which focuses solely on whether
       protected conduct played a part, "substantial" or
       otherwise, in a decision not to rehire, could place an

                               12


       employee in a better position as a result of the exercise
       of constitutionally protected conduct than he would
       have occupied had he done nothing. . . . The
       constitutional principle at stake is sufficiently vindicated
       if such employee is placed in no worse a position than
       if he had not engaged in the conduct.

Id. at 285 (emphasis added).

Mount Healthy does not define "substantial" or
"motivating factor." It does, however, attribute the phrase
"motivating factor" to Village of Arlington Heights, which, in
the context of a Fourteenth Amendment challenge,
discussed the challengers' burden of proving discriminatory
purpose. Id. at 287 (quoting Village of Arlington Heights,
429 U.S. at 270-71 & n.21). The Arlington Heights plaintiffs
relied entirely on evidence of disparate impact; they
adduced no other evidence of discriminatory purpose. See
Village of Arlington Heights, 429 U.S. at 268-70. The Court
stressed that the plaintiffs were not required to show that
a decision was "motivated solely by a single concern, or
even that a particular purpose was the `dominant' or
`primary' one." Id. at 265. The Court held, however, that the
plaintiffs' evidence of discriminatory effect was insufficient
"to carry their burden of proving that discriminatory
purpose was a motivating factor in the Village's decision."
Id. at 270. In the course of reaching this conclusion, the
Court further noted that:

       [p]roof that the decision was motivated in part by a
       racially discriminatory purpose would not necessarily
       have required invalidation of the challenged decision.
       Such proof would, however, have shifted to the Village
       the burden of establishing that the same decision
       would have resulted even had the impermissible
       purpose not been considered.

Id. at 270 n.21.

Under Mount Healthy's burden-shifting substantial-
factor/same-decision framework, the plaintiff is not
required to prove "but for" cause in order to warrant a
judgment in his favor. In this framework, the defendants, in
proving "same decision," must prove that the protected
conduct was not the but-for cause. If, in proving a

                               13


substantial or motivating factor, plaintiffs were required to
prove but-for causation, it would be impossible for
defendants to then prove that the same decision would
have been made in the absence of what the plaintiffs had
already shown to be the but-for cause of the decision. While
but-for causation is the ultimate question, it is the
defendants' burden to prove lack of but-for causation.

Thus, under Mount Healthy, if a plaintiff establishes that
the exercise of his First Amendment rights played some
substantial role in the relevant decision, he is entitled to
the extent practicable to be put in the same position that
he would have been in had he not engaged in that
protected conduct. As a result, if the defendant is able to
show by a preponderance of evidence that the same
decision would have been made had the protected conduct
not played a substantial role, no relief will be required. On
the other hand, if the protected conduct played any
substantial role and the defendant is unable to carry its
burden of showing the plaintiff has suffered no adverse
consequences as a result, the plaintiff is entitled to be put
in the same position he would have been in had the tainted
decision been made in his favor.

In the instant case, it is undisputed that the plaintiffs
engaged in protected conduct, that they were qualified to
participate in the promotion process, and that they were
not promoted. The plaintiffs have the burden of showing by
a preponderance of the evidence that their protected
activity played a substantial role in the two decisions that
resulted in their not being promoted: the ranking decision
and the decision not to promote anyone. If the plaintiffs
carry that burden, the burden will shift to the defendants
to prove by a preponderance of the evidence that the
plaintiffs would have gone unpromoted even if they had not
engaged in the protected activity. That burden could be
carried by showing that:

(1) a fair evaluation by their superiors -- i.e., one in
which retaliation played no role, would have ranked the
plaintiffs sufficiently low on the list that they would not be
contenders for any promotions that would be made; or

                                14


(2) a fair evaluation by those supervisors would h ave
resulted in the same decision by the mayor not to promote
anyone; or

(3) assuming promotions would have been made, a fa ir
evaluation by those supervisors would have resulted in the
Police Chief 's selecting other contenders.4

Since we are reviewing the District Court's decision on a
defense motion for partial summary judgment, the crucial
issues for us at this stage are whether the plaintiffs came
forward with sufficient evidence so that a trier of fact could
find that plaintiffs' protected conduct played a substantial
role in the two decisions that resulted in their not being
promoted. We hold that they have.

For purposes of this motion for summary judgment,
defendants accepted as true all the factual averments in
plaintiffs' complaint. It is clear that these facts could lead
a reasonable factfinder to conclude not only that
defendants were biased against the plaintiffs because of
their protected activities, but that they acted on that bias in
the evaluation process, lowering plaintiffs' scores. There are
statements by the decisionmakers reflecting hostility to
plaintiffs' union activities, particularly the statement by
defendant Stephens made to plaintiff Suppan one month
prior to the evaluations to the effect that because of
his union activities, he had (past tense) a career
with the department. Most importantly, several of the
decisionmakers admit that the plaintiffs' protected conduct
caused them to lower their scores. This evidence, if
credited, is sufficient to prove that plaintiffs' protected
_________________________________________________________________

4. Defendants would demonstrate this third alternative by showing that
even if absent retaliation the plaintiffs would have ranked high enough
to be twice considered for promotion, the Police Chief would have
exercised his option to pass over a top-ranked candidate twice. We
emphasize again, however, that this is the defendants' burden to show
that the same decision would have been made even absent retaliation;
the Police Chief 's hypothetical decision plays no part in the plaintiff
's
prima facie case. The plaintiffs' case is based on the actual decisions
that led to their not being promoted; they are not required to adduce
evidence that their protected conduct would have been a substantial or
motivating factor in a hypothetical decision that in fact was never made.

                               15


conduct was a substantial factor in the ranking decision,
thus shifting the burden to the defendants.

The affidavit of Mayor William Heydt is direct evidence
from the decisionmaker regarding the reasons for the
decision not to make any promotions. He swears that one
of the factors in his decision was the claim brought on
behalf of the plaintiffs alleging retaliation for their protected
union activities. Plaintiffs' protected conduct was the basis
and but-for cause of the PLRB proceedings. Indeed, the
unfair labor practice charge and the PLRB proceedings are
themselves protected activities. Given that the plaintiffs'
protected conduct and the defendants' retaliatory acts
caused both the PLRB proceedings and the "taint" in the
lists, and that these in turn were substantial factors in the
decision not to make promotions, the plaintiffs' burden with
respect to causation has been met.

It is true, as the defendants stress, that there is no
evidence of any retaliatory animus underlying the Mayor's
decision not to make any promotions. Rather, the logical
inference is that the Mayor was motivated by fear of liability.5
Further, there is nothing to suggest that the Mayor's
decision was in any way improper. Indeed, had the Mayor
made promotions from the lists, he might have subjected
the municipality to S 1983 liability by exhibiting deliberate
indifference to plaintiffs' First Amendment rights. See San
Filippo v. Bongiovanni, 30 F.3d 424, 445-46 (3d Cir. 1994).
This does not, however, negate the retaliatory animus
behind the initial ranking decision, and so it cannot
expunge the taint from the process. Nor does it break the
causal connection between plaintiffs' protected conduct and
the defendants' failure to promote them.

The District Court erred in granting summary judgment
on plaintiffs' failure to promote claims. Plaintiffs adduced
evidence from which a reasonable factfinder could conclude
that plaintiffs' protected conduct was a substantial factor in
both the ranking decision and the decision not to promote
anyone, and thus the burden shifted to the defendants to
_________________________________________________________________

5. Since Mayor Heydt is the candidate whom plaintiffs supported, a
factfinder might also conclude the Mayor was acting to protect plaintiffs'
interests.
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show that the plaintiffs are in the same position they would
have been in if they had not engaged in protected activity.
If it turns out to be true, as the District Court predicted,
that it is impossible to prove by a preponderance of the
evidence what would have happened absent the retaliation,
it is the defendants who will bear that risk once the
plaintiffs have established that retaliation was a substantial
factor in the two relevant decisions.6

VI. Conclusion

The judgment of the District Court will be reversed, and
this matter will be remanded to the District Court for
further proceedings consistent with this opinion.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________

6. Stephens v. Kerrigan, 122 F.3d 171 (3d Cir. 1997), is distinguishable.
In that suit, which was brought by the officers at the top of these same
lists, this Court found that the plaintiffs had not met their burden of
proving causation. See id. at 182. However, the protected conduct upon
which those plaintiffs based their claims was not the basis for the unfair
labor practice charge that was at issue in the PLRB proceedings. The
Stephens plaintiffs had presented no direct evidence that their own
protected conduct or the defendants' retaliation against them played any
part in the decision not to make promotions. This Court concluded that
no reasonable jury could have found that Heydt's proffered reasons for
failure to promote anyone from the list, the unfair labor practice charge
and the taint in the lists, were a pretextual cover for an impermissible
decision based on the plaintiffs' protected activity. See id. at 181-82.

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