                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-13-2008

Stump v. Richland
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3810




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Recommended Citation
"Stump v. Richland" (2008). 2008 Decisions. Paper 1235.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1235


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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                      No: 05-3810

                                 JEFFREY R. STUMP


                                       Appellant

                                            v.

RICHLAND TOWNSHIP, RICHLAND TOWNSHIP BOARD of SUPERVISORS, et al


                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                   (02-CV-06955)
                      District Court: Hon. Bruce W. Kauffman

                                   Argued: 10/24/07

                Before: McKEE, BARRY, and FISHER, Circuit Judges,

                                 (Filed: May 13, 2008)

Charles J. Weiss, Esq.
400 Maryland Dr.
P.O. Box 7544
Fort Washington, PA 19034-7544
Counsel for Appellant

Frank A. Chenak, Esq.
Ballard, Spahr, Andrews & Ingersoll
1735 Market Street
51 st Floor
Philadelphia, PA 19103
Counsel for Appellee
                                         Opinion

McKEE, Circuit Judge.

       Appellant Jeffrey Stump appeals an order of the district court granting summary

judgment in favor of his former employer, Richland Township. For the reasons set forth

below, we will reverse the district court on the First Amendment retaliation claim.

       Inasmuch as we are writing for the parties who are familiar with this case, we

need not set forth the factual or procedural background.

                               I. General Legal Principles

       A township/municipality or other public employer “may not [lawfully] discharge

an employee on a basis that infringes upon the employee’s constitutionally protected

interest in the freedom of speech.” Rankin v. McPherson, 483 U.S. 378, 383 (1987).

Thus, public employees have the right to speak on matters of public concern without fear

of retaliation from their employer. See Baldassare v. New Jersey, 250 F.3d 188, 194

(3d Cir. 2001). Nevertheless, when governmental entities act as employers, they have the

same interest in promoting the efficiency of their employees’ services as any other

employer. See Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

       We engage in a three pronged inquiry when balancing the First Amendment rights

of public employees with the right of governmental employers. See Baldassare v. New

Jersey, 250 F.3d at 194-195. Plaintiff must first establish that the speech in question was



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protected, and that it was a motivating factor in the alleged retaliatory employment action.

Id. at 195. The employer can then rebut the claim of retaliation by establishing that it

would have taken the same employment action “even in the absence of the protected

conduct.” Id. Whether the speech is protected is a question of law. Issues of causation

and whether the employer would have done the same thing even absent the protected

speech are questions of fact. Id. Here, the district court granted summary judgment to the

employer after concluding that the speech in question was not protected as a matter of

law. Accordingly, that is the only issue we need to address.

          Speech involves a matter of public concern if the content, form, and context

establish that the speech involves a matter of political, social, or other concern to the

community. Connick v. Myers, 461 U.S. 138, 146-148 (1983). In addition, the public’s

interest in the speech must outweigh the government’s countervailing interest in

discharging its responsibilities to the public. Id. at 150-151.

                                      II. Stump’s Speech

          Stump’s allegations that township officials violated Pennsylvania law clearly touch

on matters of public concern. Speech that purports to expose wrongdoing by public

officials occupies the highest rung of First Amendment protection. Baldassare, 250 F.3d

at 198.

          Accordingly, we reject the Township’s attempt to negate the public nature of

Stump’s allegations by arguing that Stump was motivated by personal grievances.



                                               3
Although the job dissatisfaction, employment grievances, and the relationship between

Stump and the Township are all quite relevant to our inquiry, the inquiry is not controlled

by Stump’s motivation in making the speech. Indeed, it is to be expected that matters of

public concern may sometimes only be disclosed because an employee becomes

sufficiently upset about something else to finally “blow the whistle.”

       The Township seeks to compare Stump’s speech with the speech in Connick and

Versarge v. Township of Clinton, 984 F.2d 1359 (3d Cir. 1993). In both of those cases,

the context of the speech established its private nature. However, the Township ignores

several distinctions between Stump’s speech and the speech at issue in those cases. First,

the questionnaire in Connick contained only one question relating to a matter of public

concern; the other thirteen questions related to purely personal matters regarding an

employee’s dissatisfaction over a transfer. Connick, 461 U.S. at 148-149. Moreover, the

plaintiff in Connick admitted that her speech was motivated by a personal grievance with

her supervisor. Id., at 153 ("Myers acknowledges that it is no coincidence that the

questionnaire followed upon the heels of the transfer notice.")

       The plaintiff in Versarge also admitted that his speech was motivated by a personal

grievance, and the speech did not transcend the grievance. See Versarge, 984 F.2d at

1365 ("the record contains affidavits from other volunteer firefighters attesting that,

shortly before writing his letter on the remodeling, plaintiff told them that he was going to

make trouble for the [fire department] because of [its] . . . position on the street closure



                                               4
issue.")

       Here, however, Stump testified that he first raised his concerns one month after he

began working for the Township. The district court was required to accept that

testimony, and Stump’s other allegations, as true for purposes of the Township’s motion

for summary judgment.

       The district court also erred in concluding that the disruption that resulted

outweighed Stump’s interest in engaging in the speech. It should not be the least

surprising that accusations of impropriety would cause some disruption; that does not

necessarily negate the public nature of those accusations. As we explained in O’Donnell

v. Yanchulis, 875 F.2d 1059, 1062 (3d Cir. 1989), an employee’s interest in exposing

wrongdoing by public officials outweighs any incidental disruption that follows. “[I]t

would be absurd to hold that the First Amendment generally authorizes corrupt officials

to punish subordinates who blow the whistle simply because the speech somewhat

disrupted the office.” Id. We also explained that disruption, even to the extent of

demoralization, is not enough to overcome the First Amendment’s protection of the

public nature of such speech. Id.

       Accordingly, we conclude that the speech here was public in nature.

                                             III.

                         Wage Payment Collection Law Claim

       The district court denied Stump’s WPCL claim because the statute does not apply



                                              5
to public employers. Stump now concedes that the WPCL does not apply, but argues that

his WPCL claim should be read as a breach of contract claim. He believes that all WPCL

claims include an underlying breach of contract claim, and dismissing the WPCL claim

does not dismiss the underlying breach of contract claim. We can not agree with this

meritless argument.

       WPCL claims differ substantially from common-law breach of contract claims,

and Stump cites no cases to the contrary. If Stump truly believes that he has a cause of

action for a breach of contract he should have pled a claim for breach of contract or

amended his complaint to include such a claim. Having failed to do that, he can not now

attempt to try to “morph” his statutory wage claim into a breach of contract claim.

                                             IV.

       For all of the above reasons, we will reverse the district court’s dismissal of

Stump’s First Amendment retaliation claim, and affirm the court’s dismissal of his Wage

Payment Collection Law claim.




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