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


5-9-2000

Merkle v. Upper Dublin Schl. Dist.
Precedential or Non-Precedential:

Docket 99-1613




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Filed May 9, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1613

LOU ANN MERKLE
       Appellant

v.

UPPER DUBLIN SCHOOL DISTRICT;
UPPER DUBLIN TOWNSHIP POLICE DEPARTMENT;
MARGARET THOMAS; CLAIR BROWN, JR., DR.;
JACK HAHN, DETECTIVE

Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 98-cv-03703
District Judge: Honorable Robert F. Kelly

Argued: January 24, 2000

Before: GREENBERG, ROTH, and ROSENN,
Circuit Judges.

(Filed: May 9, 2000)

       A. Martin Herring (Argued)
       A. Martin Herring & Associates
       1845 Walnut Street, Suite 2240
       Philadelphia, PA 19103
        Counsel for Appellant
       Jeffrey H. Quinn (Argued)
       Duffy & Quinn
       Independence Square West
       The Curtis Center, Suite 1150
       Philadelphia, PA 19106
        Counsel for Appellees
       Upper Dublin School, Margaret
       Thomas, and Clair Brown

       L. Rostaing Tharaud (Argued)
       Marshall, Dennehey, Warner,
        Coleman & Goggin
       1845 Walnut Street
       Philadelphia, PA 19103
        Counsel for Appellees
       Upper Dublin Twp. Police and
       Jack Hahn

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal presents several interesting questions arising
out of an alleged constitutional tort committed by a
township school district and its superintendent in the
arrest and prosecution of one of their teachers for the
unlawful removal of school supplies. The plaintiff, Lou Ann
Merkle, formerly a teacher at the Upper Dublin School
District ("the District"), filed this action in the U.S. District
Court for the Eastern District of Pennsylvania under 42
U.S.C. S 1983. She alleged violations of her rights under the
First, Fourth, Sixth, and Fourteenth Amendments, as well
as pendent state law claims for defamation, invasion of
privacy, false arrest and malicious prosecution. The
defendants are the District, District Superintendent Dr.
Clair Brown, Jr., and Sandy Run Middle School Principal
Margaret Thomas (collectively, "the School Defendants");
and the Upper Dublin Police Department and Upper Dublin
Police Detective Jack Hahn (collectively, "the Police
Defendants").

The district court granted summary judgment in favor of

                               2
all defendants as to Merkle's federal law claims. The court
held that Merkle had failed to offer sufficient evidence to
establish a genuine issue of material fact as to these
claims, and also that Superintendent Brown, Principal
Thomas, and Detective Hahn were entitled to qualified
immunity. Having entered judgment for all defendants on
these federal claims, the district court refused to exercise
jurisdiction over Merkle's state law claims, and accordingly
dismissed those claims without prejudice. Merkle timely
appealed.1 We affirm the judgment of the district court as
it relates to the Police Defendants and the principal,
Margaret Thomas, but reverse as it applies to the School
District and its superintendent, Dr. Clair Brown.

I.

Background

Merkle taught art at Sandy Run Middle School in the
Upper Dublin School District of Pennsylvania. She had
been a proponent of raising multicultural awareness in the
District, and at times had been outspoken about her views.
She was a leader in a local chapter of a group known as
Seeking Educational Equity and Diversity, or SEED, which
she had helped to bring to the school district with the
approval of Superintendent Clair Brown. In addition, at a
May 1996 public meeting of the District's Board of School
Directors, Merkle spoke in support of a parent's request
that The Adventures of Huckleberry Finn be removed from
the District's required reading list because of its offensive
language with respect to African Americans. Sometime
thereafter, Superintendent Brown acceded to this request.

Margaret Thomas took over as principal of Sandy Run
prior to the start of the 1996-97 school year. Merkle
testified in her deposition in this case that shortly after
Thomas assumed the principal post, she mentioned to
_________________________________________________________________

1. The district court   had jurisdiction over Merkle's federal law claims
pursuant to 28 U.S.C.   SS 1331 and 1343(a)(3), and over her state law
claims pursuant to 28   U.S.C. S 1367(a). This court has appellate
jurisdiction pursuant   to 28 U.S.C. S 1291.

                                 3
Merkle that she had attended the May 1996 board meeting,
and that she felt it was a "mistake" for Merkle to publicly
challenge a District policy at that meeting.

On August 27, 1997, prior to the start of the 1997-98
school year, Merkle and fellow art teacher Nancy

Markowich were cleaning out the art supplies closet at the
Sandy Run Middle School. They apparently decided that
some of the items in the supply closet were no longer useful
and could be donated to the North Hills Community Center,
a local center serving underprivileged children. These items
included two cartons containing a total of 144 unopened
boxes of Crayola Crayons.2 At this time, Merkle was
unaware of any official school procedures for obtaining
permission to donate art supplies, and apparently believed
that such decisions were within the art teacher's discretion.
The next day, Merkle brought these items to her car, which
was parked outside the school. Margaret Thomas and
Sandy Run Assistant Principal Wanda Anderson saw
Merkle loading these boxes of supplies into her car, and
Thomas approached Merkle and asked what she was doing.
Merkle explained that Mrs. Markowich and she concluded
that these materials "weren't useful in the curriculum," and
that they intended to donate them to the North Hills
Community Center. Thomas asked if Merkle had
authorization to donate these materials. Merkle responded
that she did not, and asked what Thomas suggested.
Thomas replied that she did not know but that she would
call the District's business manager to ascertain if there
was a procedure for donations of school property. Thomas
directed Merkle that in the meantime she should bring the
art materials back inside the school. Merkle promptly
complied.

When Thomas called the business manager, he informed
her that a list of the items sought to be donated must be
compiled and submitted to the school board for approval.
Thomas also spoke with Superintendent Brown who, after
_________________________________________________________________

2. The total cost of the supplies in question is in dispute. The District
contends the supplies have a approximate value between $250 and
$400. Merkle claims, however, that the supplies are worth no more than
$24.

                               4
consulting the District's attorney, instructed Thomas to call
the Upper Dublin Police Department to report the incident.
Apparently Brown, however, personally called the Chief of
Police to tell him that Thomas would be calling to report a
teacher whom she had witnessed taking District property
without permission, and who had admitted that she had
done this in the past as well. Thomas informed Merkle that
Brown had instructed her to call the police, and Thomas
carried out Brown's instruction.

The Police Department assigned Detective Hahn to the
case. Hahn met with Thomas at Sandy Run Middle School
on August 29, the day after the incident. Thomas told Hahn
about the incident, and according to Hahn, explained that
the District wanted "charges filed" against Merkle. Based
solely on the information he learned from Thomas, Hahn
swore out an affidavit of probable cause for Merkle's arrest,
as well as a criminal complaint against her. In Hahn's
affidavit of probable cause, he averred that Thomas
informed him that Merkle admitted to "stealing the supplies
from the school." Hahn testified in his deposition that
Thomas actually used the word "stealing" during their
meeting, that this was the basis for his determination that
probable cause for arrest did exist, and that he did not take
any written statement from her. In Thomas's deposition in
this case, however, she testified that she did not tell Hahn
that Merkle had confessed to "stealing," but rather that
Merkle had acknowledged that she knew the art materials
were District property, and that she had not asked for or
received permission to take these materials from the school.
Nevertheless, Detective Hahn also testified that"taking
another's property without permission" meant the same
thing to him as "stealing."

That same day, a meeting took place between Merkle,
Superintendent Brown, Principal Thomas, and the District's
director of personnel. Merkle was represented at this
meeting by individuals from her teacher's union. At this
meeting, Merkle was informed that she would be suspended
from her teaching position without pay pending the
outcome of an investigation.

On September 2, Hahn arrested Merkle and charged her
with theft by taking pursuant to 18 Pa. Cons. Stat. Ann.

                                5
S 3921.3 The police criminal complaint also charged her
with receipt of stolen property pursuant to 18 Pa. Cons.
Stat. Ann. S 3925,4 and criminal attempt pursuant to 18
Pa. Cons. Stat. Ann. S 901.5 After her arrest, the School
District suspended Merkle from her position, and
Superintendent Brown wrote a letter to the school board
recommending that Merkle be dismissed on the ground of
"immorality."

District Justice Patricia Zaffarano held a preliminary
hearing on October 6, 1997, and bound Merkle over for
trial. Thereafter, the incident received considerable
attention in the local newspaper. The District issued a
public statement explaining that Merkle was observed
taking art supplies from Sandy Run, that Detective Hahn
had filed a criminal complaint charging Merkle with theft,
receiving stolen property, and criminal attempt to commit
theft, that a district justice had found that a prima facie
case existed on these charges, and that a trial date was
going to be set. The District refused to make additional
comment on the matter, except to say that the district
attorney would contact the newspaper when he deemed
appropriate.

Merkle filed a motion for habeas corpus in the Court of
Common Pleas for Montgomery County, and on January
16, 1998, her motion was granted and the charges against
her dismissed. Merkle pursued administrative remedies
regarding her employment status, and after 91 days of
suspension and arbitration under the collective bargaining
_________________________________________________________________

3. This provision states that "[a] person is guilty of theft if he
unlawfully
takes, or exercises unlawful control over, movable property of another
with intent to deprive him thereof." 18 Pa. Cons. Stat. Ann. S 3921(a).

4. This provision states that "[a] person is guilty of theft if he
intentionally receives, retains, or disposes of movable property of
another
knowing that it has been stolen, or believing that it has probably been
stolen, unless the property is received, retained, or disposed with intent
to restore it to the owner." 18 Pa. Cons. Stat. Ann. S 3925(a).

5. This provision states that "[a] person commits an attempt when, with
intent to commit a specific crime, he does any act which constitutes a
substantial step toward the commission of that crime." 18 Pa. Cons.
Stat. Ann. S 901(a).

                               6
agreement, she won reinstatement with back pay. Merkle
has since left her position at the District.

Merkle's complaint in the instant action raised numerous
federal claims. Against the Police Defendants, she claims
violation of her Fourth Amendment rights by arresting her
without probable cause, and, with respect to the Police
Department, by failing to train its detectives so as to
prevent her arrest without probable cause. Against the
School Defendants, she claims (1) violation of her First
Amendment rights by retaliating against her for her
outspokenness on the issue of multicultural awareness, (2)
violation of her Sixth Amendment rights by instituting a
malicious prosecution against her, and (3) violation of her
Fourteenth Amendment rights by defaming her, thereby
infringing on her liberty interest in her good name,
reputation, honor and integrity.6 She also raises a number
of state law claims against all defendants.

II.

Discussion

This court's review of the district court's order granting
summary judgment in favor of the defendants is plenary.
See Torres v. McLaughlin, 163 F.3d 169, 170 (3d Cir. 1998),
cert. denied, 120 S. Ct. 797 (2000). Summary judgment
may be granted where there exists no genuine issue as to
any material fact, and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). In
addressing a motion for summary judgment, the facts must
be viewed in the light most favorable to Merkle, and she is
entitled to every reasonable inference that can be drawn
from the record. See Hamilton v. Leavy, 117 F.3d 742, 746
(3d Cir. 1997). We first discuss Merkle's claims against the
Police Defendants, and then her claim against the School
Defendants.
_________________________________________________________________

6. Although Merkle's complaint alleges her constitutional claims and a
section 1983 claim separately, the district court correctly interpreted
all
of the constitutional claims as various bases supporting a claim arising
under section 1983.

                               7
A.

The Police Defendants

1.

Detective Hahn

On the appeal to this court, Merkle contends that the
district court erred in granting summary judgment in favor
of the Police Defendants on her Fourth Amendment claim
that Detective Hahn arrested her without probable cause.
"Probable cause to arrest exists when the facts and
circumstances within the arresting officer's knowledge are
sufficient in themselves to warrant a reasonable person to
believe that an offense has been or is being committed by
the person to be arrested." Orsatti v. New Jersey State
Police, 71 F.3d 480, 482 (3d Cir. 1995). Generally, "the
question of probable cause in a section 1983 damage suit
is one for the jury." Montgomery v. De Simone , 159 F.3d
120, 124 (3d Cir. 1998); see also Sharrar v. Felsing, 128
F.3d 810, 818 (3d Cir. 1997); Deary v. Three Un-Named
Police Officers, 746 F.2d 185, 190-92 (3d Cir. 1984). This is
particularly true where the probable cause determination
rests on credibility conflicts. See Sharrar , 128 F.3d at 818;
Deary, 746 F.2d at 192. However, a district court may
conclude "that probable cause exists as a matter of law if
the evidence, viewed most favorably to Plaintiff, reasonably
would not support a contrary factual finding," and may
enter summary judgment accordingly. Sherwood v.
Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997).

In Sharrar v. Felsing, 128 F.3d, 810, 817-18 (3d Cir.
1992) this court reiterated the well-established rule that
probable cause is defined in terms and circumstances
sufficient to warrant a prudent man in believing that the
suspect had committed or was committing a crime. Id. It is
the function of this court to determine whether the
objective facts available to Detective Hahn at the time he
arrested Merkle were sufficient to justify a reasonable belief
that she had committed a theft. See id. at 818; United
States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984), cert.

                               8
denied, 471 U.S. 1018 (1985). In Illinois v. Gates, 462 U.S.
213 (1983), the Court adopted a "totality of the
circumstances" approach in assessing the existence of
probable cause to issue a search warrant and "identified a
`common sense' aspect to the issue of probable cause."
(Quoted in Glasser, 750 F.2d at 1201.) Moreover, since this
appeal comes to us from an order granting summary
judgment in favor of the defendants, the facts must be
considered in the light most favorable to Merkle. See Gallo
v. City of Philadelphia, 161 F.3d 213, 219 (3d Cir. 1998).

We, therefore, examine the evidence produced by Merkle
to determine whether she has raised a genuine issue of
material fact as to whether Detective Hahn had probable
cause to arrest her. Moreover, the common law
presumption raised by a magistrate's prior finding that
probable cause exists does not apply to section 1983
actions.

The issue of whether Detective Hahn had probable cause
to arrest rests almost entirely on his knowledge of what
Merkle stated to Thomas when the latter interrupted the
removal of the supplies. Merkle's version of what occurred
is corroborated by Thomas. We therefore have a situation
where Merkle was in the process of removing art teaching
supplies which she and her colleague, Markowich,
considered of no use in their curriculum. After having been
informed of prior unsuccessful efforts to ascertain whether
other teachers in the school had use for the unopened
crayons, Merkle decided to turn over the supplies to the
North Hills Community Center. In loading the supplies into
her car for that purpose, Merkle assumed that as an art
teacher, she had the discretion and authority to do this.

When questioned by Thomas, Merkle promptly and
candidly informed her that the supplies, in her mind, were
useless and that she believed she implicitly had the
authority to dispose of them. When Thomas questioned
Merkle's authority to do this, Merkle promptly returned the
supplies to the school building. Thomas did not regard the
removal as a theft.

If "at the moment the arrest was made . . . the facts and
circumstances within [the defendant's] knowledge and of

                               9
which [he] had reasonably trustworthy information were
sufficient to warrant a prudent man in believing" that the
plaintiff had violated the law, probable cause is present.
Hunter v. Bryant, 502 U.S. 224, 228 (1991) (quoting Beck
v. Ohio, 379 U.S. 89, 91 (1964)). In challenging Detective
Hahn's determination that probable cause to arrest existed,
Merkle has the burden of showing, by a preponderance of
the evidence, that (1) Hahn knowingly and deliberately, or
with a reckless disregard for the truth, made false
statements or omissions in his affidavit of probable cause
that create a falsehood in applying for an arrest warrant;
and (2) such statements or omissions are material to the
finding of probable cause. See Franks v. Delaware, 438
U.S. 145, 171-72 (1978); Sherwood, 113 F.3d at 399.

In his affidavit, Hahn stated that Principal Thomas told
him that Merkle had admitted to "stealing" the art supplies.
In his deposition in this case, Hahn testified that had
Merkle not admitted improper conduct to Thomas, he
would not have concluded that probable cause existed to
arrest. As the district court acknowledged, however, there is
conflicting testimony on the record about the accuracy of
Hahn's description of Merkle's admission. Although Hahn
testified that Thomas told him Merkle confessed to
"stealing," Thomas testified that she merely told him that
Merkle admitted to taking school property without
permission. Detective Hahn's testimony on this point is
somewhat confused. He testified that for his purposes,
"stealing" meant the same thing to him as taking another's
property without permission. However, he also testified that
had Thomas not used the word "stealing," he would not
have concluded that there existed probable cause to arrest
Merkle. The district court found that this factual dispute
was immaterial, holding that "when an individual . . . is
found loading her car with materials that do not belong to
her, and reliable witnesses attest to this, a police officer
who gets the report has probable cause to arrest." (Op. at
11). Specifically, the court held that these circumstances
were sufficient to support an arrest for the crime of theft by
taking, which requires only the taking of property with the
intent to deprive the owner thereof. (Op. at 12). 7
_________________________________________________________________

7. The district court did not address whether Hahn had probable cause
to arrest Merkle for the other crime with which she was charged, receipt

                               10
Viewing the facts in the light most favorable to Merkle,
this court must assume that Thomas told Hahn merely that
Merkle admitted that she had no permission to take the
property she was found loading into her car. The question
therefore becomes whether a reasonable person in Hahn's
position could have concluded, based on this knowledge,
that Merkle had committed a crime. Merkle argues that the
district court's reasoning is flawed because the mere report
of a witness that an individual was seen loading her car
with materials that did not belong to her does not establish
probable cause in all cases. For example, a teacher might
be taking home materials belonging to the school to prepare
class lessons. This, Merkle, contends, does not evidence an
intent to deprive the District of its property. However,
Thomas also told Hahn of Merkle's announced intention to
give the property to the North Hills Community Center.
Thus, Hahn possessed knowledge of a credible report from
a credible eyewitness that Merkle did intend to deprive the
District of its property. Accordingly, a reasonable jury could
not find that Hahn lacked knowledge of sufficient facts to
establish probable cause to arrest Merkle for the crime of
theft by taking.8
_________________________________________________________________

of stolen property. Arguably, probable cause to arrest Merkle for this
crime did not exist. This crime requires that the defendant must have
known or believed the property at issue was "stolen." See supra note 3.
There was no indication that Merkle viewed the art supplies in this
manner. Rather, she appears to have genuinely believed that she had
discretion to donate the property. Regardless, if Merkle's arrest on the
charge of theft by taking was proper, we will not invalidate it merely
because she was also improperly charged with the additional crime.
Although a different conclusion may be warranted if the additional
charge results in longer detention, higher bail, or some other added
disability, there is no evidence in this record that the charge of receipt
of stolen property had such effect.
8. Merkle also contends that Hahn lacked probable cause because he
failed to interview other witnesses, such as Vice Principal Anderson, art
teacher Markowich, or Merkle herself, prior to making the arrest.
However, Hahn had every reason to believe a credible report from a
school principal who witnessed the alleged crime. This report alone
sufficiently established probable cause. Hahn was not required to
undertake an exhaustive investigation in order to validate the probable
cause that, in his mind, already existed. See Gramenos v. Jewel Cos.,
Inc., 797 F.2d 432, 439 (7th Cir. 1986), cert. denied, 481 U.S. 1028
(1987); Morrison v. United States, 491 F.2d 344, 346 (8th Cir. 1974).

                               11
2.

The Police Department

In her complaint, Merkle also charged the Upper Dublin
Township Police Department with violating her Fourth
Amendment rights. Under section 1983, municipal liability
arises only when a constitutional deprivation results from
official custom or policy. See Monell v. Department of Social
Servs. of City of New York, 436 U.S. 658, 690-91 (1978);
Montgomery, 159 F.3d at 126-27 (citing City of Canton, Ohio
v. Harris, 489 U.S. 378, 388 (1989)). Merkle makes no
argument on appeal regarding her claim that the Upper
Dublin Police Department violated her Fourth Amendment
rights by failing to properly train Detective Hahn. It appears
that Merkle has waived this claim, and therefore, this court
need not address it. See Warren G. v. Cumberland County
Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (issue waived if
not raised in party's opening brief).

B.

The School Defendants

Merkle also claims that the School Defendants (1)
maliciously prosecuted her in violation of the her Sixth
Amendment rights, (2) retaliated against her for her
outspoken support of multiculturalism in violation of her
First Amendment rights, and (3) caused harm to her
reputation in violation of her Fourteenth Amendment
rights.

Merkle contends that the School Defendants violated her
constitutional rights by initiating and pursuing her
prosecution even though Superintendent Brown and
Principal Thomas knew that she had committed no crime.9
Although the charges against Merkle were filed and the
actual prosecution conducted by Detective Hahn, 10 both
_________________________________________________________________

9. Based on Merkle's complaint, her claims against the District appear to
be based on the acts of Superintendent Brown as the District's
policymaking official.
10. Apparently, in cases of this type, the investigating detective often
represents the Commonwealth at the preliminary hearing. Consequently,
Detective Hahn acted as the prosecutor at Merkle's preliminary hearing.

                               12
Hahn and the Chief of Police testified that the police
department would not have pressed charges and pursued
the criminal prosecution unless (1) the victim requested it
and (2) it believed it had probable cause to do so. The Chief
of Police further testified that once charges werefiled, those
charges would not be withdrawn unless the victim so
requested. It is undisputed that in his initial telephone call
to the Chief of Police, Superintendent Brown said he
wanted criminal charges filed against Merkle if sufficient
evidence existed. In her initial meeting with Detective Hahn,
Thomas informed him that Superintendent Brown wanted
to press charges against Merkle. Prior to the preliminary
hearing, Hahn asked Superintendent Brown if he still
wanted to go through with the prosecution, and Dr. Brown
replied that he did. Therefore, the School Defendants, not
just the Police Defendants, are responsible for Merkle's
prosecution.

The district court analyzed Merkle's S 1983 malicious
prosecution claim based on the elements of the common
law tort of malicious prosecution. In Pennsylvania, a
plaintiff alleging common law malicious prosecution must
show (1) the defendants initiated a criminal proceeding; (2)
the criminal proceeding ended in the plaintiff 's favor; (3)
the proceeding was initiated without probable cause; and
(4) the defendants acted maliciously or for a purpose other
than bringing the plaintiff to justice. See Hilfirty v.
Shipman, 91 F.3d 573, 579 (3d Cir. 1996). The court held
that Merkle's claim failed on the third element, relying on
its holding that Detective Hahn had probable cause to
arrest Merkle.

Although the parties do not so contend, the district
court's analysis appears not to have been abreast of recent
developments in the law. It was at one time the law of this
circuit that a plaintiff alleging a section 1983 claim for
malicious prosecution would be required only to show the
elements of the common law tort. See Lee v. Mihalich, 847
F.2d 66, 69-70 (3d Cir. 1988). However, in the aftermath of
the Supreme Court's decision in Albright v. Oliver, 510 U.S.
266 (1994), this court has acknowledged that this is no
longer the case. In Albright, the Court held that a claim of
malicious prosecution under section 1983 cannot be based

                               13
on substantive due process considerations, but instead
must be based on a provision of the Bill of Rights providing
"an explicit textual source of constitutional protection." Id.
at 272 (citation and internal quotation marks omitted).

This court has since noted that Albright"casts doubt" on
prior circuit precedent adopting common law malicious
prosecution as the test in a S1983 action. Gallo v. City of
Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998). The court
in Gallo analyzed whether a malicious prosecution claim
arose from the Fourth Amendment, i.e., whether the
prosecution worked a post-indictment "seizure" on the
S 1983 plaintiff. The court concluded that the malicious
prosecution at issue did work a post-indictment seizure
where the plaintiff 's liberty "was constrained in multiple
ways for an extended period of time." Id. at 225.
Specifically, the plaintiff was subjected to travel restrictions
and was compelled to attend a number of court hearings
over an eight-and-a-half month period. Id. Accordingly, the
Gallo court reversed the district court's grant of summary
judgment for the defendants, and remanded for further
proceedings.

We have expanded on the altered nature of the post-
Albright malicious prosecution landscape in Torres v.
McLaughlin, 163 F.3d 169 (3d Cir. 1998). The Torres court
read Albright as standing for the proposition that a section
1983 malicious prosecution claim could be based on a
constitutional provision other than the Fourth Amendment,
including the procedural component of the Due Process
Clause, so long as it was not based on substantive due
process. Id. at 173.11

Merkle predicates her constitutional malicious
prosecution claim on the First and Sixth Amendments. We
turn to her Sixth Amendment claim first because it requires
only a minimum of discussion. It is difficult to understand
_________________________________________________________________

11. This court did not immediately recognize that Albright changed the
manner in which S 1983 malicious prosecution claims must be analyzed.
For example, in Hilfirty v. Shipman, decided two-and-a-half years after
Albright, we continued to adhere to the pre-Albright common law analysis
of malicious prosecution claims brought under S 1983. See 91 F.3d at
579.

                               14
how the Sixth Amendment is implicated here. That
amendment affords individuals rights to a speedy trial, to
an impartial jury, to know the nature and cause of a
criminal accusation, to be confronted with the witnesses
against them, and to effective assistance of counsel. Merkle
makes no effort to relate her claim to the rights afforded by
the Sixth Amendment. She does, however, explain that she
was deprived of liberty by reason of the prosecution,
because she was compelled "to attend court hearings and
her job [was] placed in jeopardy as a result of being charged
with a crime of moral turpitude." (Appellant's Br. at 25 n.9).
The latter argument -- that her job was placed in jeopardy
because she was charged with a crime of moral turpitude --
seems akin to a substantive due process argument. Indeed,
no constitutional provision other than the substantive
component of the Due Process Clause even arguably affords
the protection Merkle asserts. As noted above, however, the
Supreme Court held in Albright that a violation of
substantive due process is no basis for a malicious
prosecution claim brought pursuant to section 1983.

Merkle's former argument -- that she was compelled to
attend court hearings by reason of the false prosecution --
seems like a Fourth Amendment seizure argument similar
to the argument considered by this court in Gallo. Merkle
has failed to assert the Fourth Amendment as the basis for
her claim against the School Defendants, however, even
though this court gave her the opportunity to do so at oral
argument. We therefore do not address this argument.

Merkle next claims that the School Defendants instituted
a criminal prosecution against her and suspended her from
her teaching position to retaliate for her outspoken
statements in support of multicultural awareness. Merkle's
retaliation claim is analyzed under a three step, burden-
shifting methodology. First, Merkle must demonstrate that
her speech was protected. For purposes of this appeal, the
parties concede that it was. Second, Merkle must show that
her speech was a motivating factor in the alleged retaliatory
action. Third, the School Defendants may defeat Merkle's
claim by establishing that it would have taken the same
adverse action against Merkle even in the absence of her
protected speech. See Mt. Healthy City Sch. Dist. Bd. of

                               15
Educ. v. Doyle, 429 U.S. 274, 287 (1977); Latessa v. New
Jersey Racing Comm'n, 113 F.3d 1313, 1319 (3d Cir. 1997).

The district court granted summary judgment for the
School Defendants on the retaliation claim. The court found
that the School Defendants would have suspended Merkle
from her teaching position, even absent her speech, based
on their discovery that she was putting school supplies into
her car for which she was arrested. Merkle correctly points
out that the district court defined the alleged retaliatory
action too narrowly, focusing only on the District's decision
to suspend Merkle. Merkle's claim of retaliation is directed
at the whole course of conduct by the School Defendants in
persisting to press criminal charges against her instead of
handling the matter administratively.

That course of conduct grew out of a conversation
between Thomas and Merkle when Thomas saw Merkle
carrying openly and in daylight a carton of school supplies
to her car. It is, however, the conduct which occurred after
this that is significant: Superintendent Brown's telephone
call to his friend, the Chief of Police, in which, despite
Brown's knowledge that Merkle intended to donate the
supplies to the North Hills Community Center, Brown
expressed his desire for an investigation and prosecution;
Brown's persistence despite the Chief 's query"are you sure
you want to do this?"; the failure of the District to consider
taking administrative action, rather than instituting
criminal prosecution, against Merkle for what the police
considered to be an internal school district matter,
particularly in view of the lack of a school district policy on
the disposal of surplus supplies; Brown's affirmation to
Hahn before the preliminary hearing that Brown still
wanted to prosecute Merkle; and Brown's recommendation
to the school board that Merkle be dismissed on the ground
of "immorality."

Additional conduct which we find significant is the
statement Brown made to the press, after consulting with
the District's solicitor, apparently in response to the events
at a school board meeting at which approximately two
hundred community residents protested Merkle's
suspension and prosecution. The press release denied that
the crayons could not be used by the District. It explained

                               16
that the school administration could not comment at the
meeting on the action it had taken because, the District
Justice having found a prima facie case on charges of theft,
receipt of stolen property and criminal attempt at theft, "it
is fundamental and basic to fairness and legal ethics that
no comment by the parties be made in a criminal
proceeding until the matter is adjudicated." The statement,
however, gave no information on Merkle's version of the
incident.

Brown claims to have acted out of concern that this
incident was part of a pattern of unauthorized disposition
of District property to the North Hills Community Center
and elsewhere. Indeed, Thomas did report to Brown that
the two cartons of crayons she found Merkle loading into
her car were unopened.12 Under these circumstances,
however, whether Brown acted out of a concern that
valuable supplies were being stolen or whether he
criminally prosecuted Merkle and terminated her contract
with the District in retaliation for her activities in promoting
multicultural awareness is a disputed question of fact for a
jury and not a question of law for the trial court.

Merkle charges that the District embarked on its course
of malicious prosecution because of her activities with
SEED, which were protected, inter alia, by the First
Amendment. Merkle played a leadership role in SEED and
was a member of its academic and cultural sensitivity task
force. SEED provided books and films to teachers to train
them on diversity issues before problems arose in the
classroom. It was through SEED that the protest was made
to the school board of having "Huckleberry Finn" as
required reading. After Merkle stated at a school board
meeting that "Huckleberry Finn" should be"pulled,"
_________________________________________________________________

12. Merkle was under the impression that the crayons were the result of
"a gross over-order" about eight years before. She testified that over a
course of years, Nancy Markowich put announcements in the daily
bulletin that goes out to all teachers in the Sandy Run School offering
the crayons, but no one requested them. In addition to the crayons,
there was some dry powder paint, a jar or two of old tempera paint, and
some dry glue. The cart with usable general supplies was rolled into the
general supply closet for retention.

                               17
Thomas told Merkle that "when your school had a policy, as
a teacher it's a mistake to speak out against it publicly."

Our review of this entire course of events convinces us
that Merkle has not produced evidence that Thomas's
actions, including her report to the superintendent of the
removal of supplies, amounted to retaliatory action against
Merkle. For that reason, we will affirm the district court's
order granting summary judgment for Margaret Thomas.
We differ with the district court, however, with respect to
Merkle's claims against the Upper Dublin School District
and its superintendent, Dr. Clair Brown. We believe that
whether these defendants' actions against Merkle were
retaliatory is, for purposes of summary judgment,
influenced by the strength of Merkle's claim against them
for common law malicious prosecution.

We begin our analysis as to the District and Brown with
the threshold question of whether the presence of probable
cause for Detective Hahn to make the arrest also imputes
probable cause in behalf of the School Defendants to the
criminal prosecution. The action of the School District in
initiating the criminal proceedings and pressing unfounded
criminal charges against Merkle can render the District
liable for its major role in a malicious prosecution.
Although the police may have acted on the reasonable belief
that they had probable cause to arrest Merkle, whether the
School Defendants had probable cause to pursue Merkle's
prosecution is an independent inquiry, the outcome of
which is not dictated by our holding that Hahn had
probable cause to arrest Merkle. Hahn acted only on what
Principal Thomas told him. As instigators of the arrest,
however, it is possible that the District and Brown were in
possession of additional information, not provided to
Detective Hahn, that would negate any probable cause they
may otherwise have had to prosecute Merkle. Thus, in
analyzing the common law claim of malicious prosecution,
we must consider the facts known to the District and its
superintendent to determine whether they had probable
cause to prosecute. See Simmons v. Poltrone, No. Civ. A. 96-
8659, 1997 WL 805093, at *8 n.6 (E.D. Pa. Dec. 17, 1997);
Doby v. Decrescenzo, No. Civ. A. 94-3991, 1996 WL
510095, at *13 (E.D. Pa. Sept. 9, 1996); Hess v. County of
Lancaster, 514 A.2d 681, 683-84 (Pa. Commw. Ct. 1986).

                               18
On the basis of the facts as outlined above, see supra at
17, we conclude that a jury could find that Brown, and
through him the School District, acted maliciously in
pressing unfounded criminal charges against Merkle and
could reasonably infer that Merkle's protected speech was
a motivating factor in this course of action. Where a
reasonable inference can be drawn that an employee's
speech was at least one factor considered by an employer in
deciding whether to take action against the employee, the
question of whether the speech was a motivating factor in
that determination is best left to the jury. See Watters v.
City of Philadelphia, 55 F.3d 886, 891 n.3 (3d Cir. 1995);
Johnson v. Lincoln Univ. of Commonwealth System of Higher
Educ., 776 F.2d 443, 454 (3d Cir. 1985); Clemens v.
Dougherty County, Georgia, 684 F.2d 1365, 1368-71 (11th
Cir. 1982).

We believe the evidence of Merkle's successful challenge
to the School District's inclusion of "Huckleberry Finn" in
the school's curriculum at an open meeting and her
outspokenness about the need for greater cultural
sensitivity in the District is sufficient on the facts presented
to raise such questions of fact. When this arguably
disfavored protected speech is coupled with (1) Brown's
determination to pursue a criminal prosecution even
though the objective evidence and police comments
indicated that the matter should be pursued
administratively, and (2) his deliberate recommendation
that Merkle be permanently discharged for "immorality" as
opposed to simply pursuing administrative alternatives
such as "verbal counseling at the time of the incident or at
most a written warning" (which the arbitrator later found
would have been an appropriate, proportional response),
room for the inference of discriminatory animus expands
considerably.

An arrest is a serious matter, especially an arrest of a
public school teacher whose professional career
instantaneously is put in jeopardy by stigmatic public
charges. The arrest humiliates the teacher before her
pupils, her teaching colleagues and the public. To arrest a
teacher on the "scanty grounds" adduced here, Albright v.
Oliver, 975 F.2d 343, 345 (7th Cir. 1992), especially when

                               19
there were other less oppressive options, is shocking. The
supplies, even under the District's estimate of their value,
were not of sufficient moment to warrant such drastic and
irreparable action. If, in their disposition, Merkle exceeded
her discretionary authority or even violated her presumptive
authority,13 there were reasonable alternatives by which the
District could exercise control and discipline and give each
teacher appropriate notice of school policy for disposing of
useless or surplus supplies. Under these circumstances,
and especially in the face of doubts on the part of the police
officers, a jury could reasonably find that the
Superintendent's decision to arrest and his deliberate
decision to recommend to the School Board that Merkle's
contract be terminated on the basis of "immorality" was
motivated by a desire to retaliate against her for her
protected activities and not by an interest in protecting the
unauthorized removal of supplies. A jury could reasonably
find that the underlying motivation for the discharge lay
embedded in Merkle's temerity to advocate her
multicultural program to the School District. In any event,
these were questions of fact for jury determination, not
questions of law for the court.
_________________________________________________________________

13. Dr. Brown acknowledged that the faculty handbook does not set
forth any policy concerning the disposal of useless or surplus supplies.
He testified on deposition that not every single supply item given to a
teacher requires Board approval, that some "are thrown out or
discarded."

He further testified:

       Q: So your position is that when an item becomes unusable it
       should be kept, and then you need board approval for that?

       A: I didn't say that. I said when an item becomes disposable or in
       the condition to be disposed of, there's an orderly process to be
       disposed of.

       Q: And some of that is within the teacher's discretion; correct?

       A: It's in the teacher's discretion to recommend the disposal of
       materials, certainly.

       Q: And even to dispose of them, isn't it?

       A: I guess that's a judgment that a teacher can make, sure.

                               20
The dissent rests entirely on the conclusion that Merkle
actually committed the crime of theft when "she unlawfully
took or exercised control over [the property] with the
admitted intent to deprive the School District of it."
Concurrence and Dissent at 26 and 32. This conclusion, it
believes, is commanded by language in Gottesfeld v.
Mechanics & Traders Insurance Co., 173 A.2d 763, 766 (Pa.
Super. Ct. 1961). Significantly, the Gottesfeld case relied
upon the Pennsylvania Supreme Court's decision in
Thomas v. Kessler, 5 A.2d 187 (Pa. 1939). In Thomas, the
plaintiff, a beneficiary of a trust which owned shares of a
newspaper, went to the newspaper's offices and took some
stationary, believing she had the right to do so by virtue of
her interest in the trust. She was charged by the
newspaper's president with larceny, and she in turnfiled a
malicious prosecution action against the president. The
Court of Common Pleas entered a compulsory nonsuit in
the malicious prosecution action, holding that the
newspaper's president had probable cause to believe the
plaintiff had committed a theft. On appeal, the
Pennsylvania Supreme Court reversed and remanded for
trial. The Supreme Court held:

       When the facts and circumstances . . . are considered,
       it is obvious that no larceny was committed, that there
       was no felonious intent in plaintiff 's mind , that she was
       not stealing the few sheets of paper, and that she took
       it because she thought, mistakenly perhaps, that she
       had the right to.

Id. at 188 (emphasis added). The court summarized its
holding as follows: "It has been repeatedly held that when
one takes property under a claim of right, even though
mistaken, larceny is not committed." Id.; accord Penn-Air,
Inc. v. Indemnity Ins. Co. of N. Am., 269 A.2d 19, 22-24 (Pa.
1970); Commonwealth v. Compel, 344 A.2d 701, 702-03
(Pa. Super. Ct. 1975). See also Commonwealth v. Sleighter,
433 A.2d 469, 471 (Pa. 1981).

The Thomas case bears a striking resemblance to the
facts at hand. When Merkle removed the art supplies from
the supply closet and decided to donate them to the North
Hills Community Center, she too did so without "felonious
intent." Indeed, she believed that as an art teacher, she had

                               21
discretion to discard property she believed to be useless or
give it to a non-profit institution that might possibly use it.
In other words, she believed she had the District's implied
consent to dispose of the property under these
circumstances and "that she had the right" to do what she
did. The School Defendants do not dispute this perception
of Merkle's mental state at the time she removed the art
supplies. Thus, based on the undisputed facts, Merkle
cannot be said to have committed the crime of theft by
taking.

The dissent is concerned that under the majority's view,
employers will be reluctant to bring criminal proceedings
against an employee even when the employee is found
violating the criminal law. Concurrence and Dissent at
30-32. We believe this fear is groundless. An employer
incurs no risk of a suit for malicious prosecution when the
employer has probable cause to believe that its employee
had committed a criminal violation. Here, however, the
employer never had cause to find a criminal violation,
because it knew that Merkle acted without criminal intent.
The dissent assumes that Merkle committed a criminal
violation, an assumption that is negated by the facts, the
circumstances, and the law.

Finally, Merkle claims that as to the School District and
Dr. Brown, their actions willfully and recklessly caused
injury to her "good name, reputation, honor and integrity,"
in which she had a liberty interest under the Fourteenth
Amendment. Specifically, she points to (1) Dr. Brown's
report to the Chief of Police that Merkle had been caught
loading District property into her car without authorization,
and noting his concern that this had been going on for
some time, and (2) the District's statement to the local
newspaper regarding the Merkle prosecution claimed that
the art supplies were valuable and usable to the District,
and described the District as "the party offended against,"
but omitted mention of Merkle's explanation that she
believed the supplies were useless and unnecessary to the
curriculum, and that she intended to donate them to the
North Hills Community Center. (Appellant's Br. at 33-34).

This court has warned against "equat[ing] a state
defamation claim with a cause of action under section 1983

                                22
predicated on the Fourteenth Amendment." See Kelly v.
Borough of Sayreville, 107 F.3d 1073, 1078 (3d Cir. 1997).
Thus, the Fourteenth Amendment does not protect injury to
reputation alone, Paul v. Davis, 424 U.S. 693, 701-10
(1976); Clark v. Township of Falls, 890 F.2d 611, 619 (3d
Cir. 1989). However, Merkle may show that her Fourteenth
Amendment rights were violated if the harm to her
reputation occurred while she was being deprived of
another constitutional right. See Ersek v. Township of
Springfield, 102 F.3d 79, 83 n.5 (3d Cir. 1996); Robb v. City
of Philadelphia, 733 F.2d 286, 294 (3d Cir. 1984).

The district court held that, because it had dismissed all
of Merkle's other constitutional claims, she could not show
that any false statements by the District were made in the
course of another constitutional violation. However,
because we believe that there is a question of fact for a jury
as to whether Brown was motivated by Merkle's exercise of
her First Amendment right of speech to initiate a baseless
prosecution, she may be able to adduce evidence of an
injury to her reputation while in the exercise of a
constitutional right. The truth or falsity of several of the
allegedly defamatory statements identified by Merkle are
disputed issues of fact and these too are questions for a
jury. See Ersek, 102 F.3d at 84 & n.7. In light of our
determination that it was error for the district court to
grant the motion of the District and Dr. Brown for
summary judgment on the First Amendment claim, the
disposition of Merkle's claim of injury to her reputation will
also be reversed and remanded.

The district court alternatively held that Superintendent
Brown was entitled to qualified immunity for his action.
Government officials performing discretionary functions . . .
are shielded from liability for civil damages insofar as their
conduct does not violate clearly established constitutional
rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1992). A defendant
is entitled to qualified immunity if reasonable officials in
the defendant's position at the relevant time "could have
believed, in light of clearly established law, that their
conduct comported with established legal standards."
Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726

                               23
(3d Cir. 1989), cert. denied, 493 U.S. 1044 (1990). The
parties do not dispute that the relevant law was clearly
established at the time of Brown's actions. Thomas, who
first reported the removal of the supplies, never suggested
prosecution or that Merkle's conduct amounted to theft.
Similarly, Coleman, the business manager, considered it a
matter merely requiring Board approval.

An objective and reasonable assessment under the
circumstances disclosed at most a mistake in judgment or
probable exercise of excessive authority, but not a criminal
intent to steal. The Chief of Police and Detective Hahn both
raised warning lights for criminal prosecution; Brown,
however, was determined to arrest and to persist in the
prosecution. In view of our analysis that Merkle's version of
the facts supports the proposition that Brown, and through
him the District, maliciously prosecuted Merkle in
retaliation for her protected First Amendment activities, it
follows that Brown is not entitled to qualified immunity.
Viewed objectively, the act of arrest followed by the refusal
to withdraw the charges was unreasonable.

III.

Conclusion

Accordingly, the order of the district court granting
summary judgment to the Police Defendants and to
Margaret Thomas, the school principal, will be affirmed.
The order granting summary judgment to the School
District and its superintendent, Dr. Clair Brown, Jr., and
alternatively granting Dr. Brown qualified immunity, will be
reversed and the case remanded for appropriate
proceedings consistent with this opinion. Each side to bear
its own costs.

                               24
GREENBERG, Circuit Judge, concurring and dissenting.

I concur in and join the majority opinion to the extent
that it affirms the order of the district court granting
summary judgment but to the extent that it reverses, I
dissent. I think that it is perfectly plain that Merkle was the
only person who did anything wrong in the matters involved
in this litigation. Under 18 Pa. Cons. Stat. Ann.S 3921(a)
(West 1983), "[a] person is guilty of theft if he unlawfully
takes, or exercises unlawful control over, movable property
of another with intent to deprive him thereof." It is clear
that Merkle, without any authority, took 144 unopened
boxes of Crayola Crayons belonging to the School District
and was loading them in her car when Thomas interrupted
her. Indeed, even on this appeal Merkle acknowledges that
"Prior to this incident, [she] was unaware of any official
procedure applicable" to the disposal of property. Br. at 5-
6. Thus, surely she should not have taken the property, as
she could not take her lack of knowledge of a procedure on
how to dispose of property to mean that she had a license
to determine what property was unneeded and to whom the
district should donate it.

In this regard, I emphasize the following. In Merkle's brief
she never contends that she asked the School Defendants
for permission to donate the crayons to the North Hills
Community Center before she removed them. Rather, she
only contends that no other teacher at the Sandy Run
Middle School expressed interest in the crayons. See br. at
5. Thus, she could not have known whether other schools
in the district could have made use of the crayons, perhaps
in a lower grade level than the levels in the middle school
where she taught. Moreover, when Merkle removed the
crayons she could not know whether the School District, if
it determined to dispose of them, would have considered
the community center as the appropriate donee. Rather, for
all she knew, the School District would have preferred to
give away its property to a different recipient.

It is true, of course, that when Thomas interrupted
Merkle when she was taking the property she returned it to
the school, and the majority makes much of this conduct.
But I really do not understand why it does so. After all,
what else could Merkle have done? What the majority does

                                25
not consider is that except for the fortuitous circumstance
that Thomas observed her taking the crayons, the School
Defendants never might have been aware that she took
them. Of course, Merkle already had completed the offense
before she returned the property as she unlawfully took or
exercised control over it with the admitted intent to deprive
the School District of it. In the circumstances, there is not
even a scintilla of doubt but that the School Defendants
had probable cause as a matter of law to believe that
Merkle committed a crime when she removed the crayons
which Merkle could not erase with her after-the-fact
conduct and explanations. See Gottesfeld v. Mechanics and
Traders Ins. Co., 173 A.2d 763, 766 (Pa. Super. Ct. 1961)
("Larceny, by definition, is taking or carrying away the
property of another with intent to convert it to the use of
someone other than the owner without his consent.").

The majority cites Thomas v. Kessler, 5 A.2d 187, 188
(Pa. 1939), for the principle that "[i]t has been repeatedly
held that when one takes property under a claim of right,
even though mistaken, larceny is not committed." That
principle, however, is not applicable here as Merkle, unlike
the plaintiff in Thomas, never has made"a claim of right"
to the property involved. Quite to the contrary she always
has acknowledged that the School District was the owner of
the crayons. She only has claimed that she had the power
to give away the property. Thus, the facts here, rather than
bearing "a striking resemblance" to those in Thomas, as the
majority suggests, maj. op. at 21, plainly are
distinguishable from those in that case. The same is true of
the other cases the majority cites as they, too, were
concerned with the meaning of "claim of right." Therefore
none of the cases the majority cites can detract from the
circumstance that the School Defendants had probable
cause to believe that Merkle was guilty of a theft.

I recognize, of course, that the Court of Common Pleas of
Montgomery County on Merkle's habeas corpus petition
found the facts failed to show by the preponderance of the
evidence that Merkle engaged in criminal activity, and
suggested that if she was at fault that the matter be
handled administratively. Nevertheless that finding and
suggestion cannot change the circumstance that the School

                                26
Defendants had probable cause to believe that she
committed a theft. Similarly, the view of the majority that
the matter should have been handled administratively does
not change the fact that the School Defendants had
probable cause to believe a crime had been committed.1

Where, then, are we? Merkle contends that the district
court "incorrectly determined the issue of probable cause,
since the facts in dispute created an issue solely reserved
for jury resolution." Br. at 10. Obviously, the majority
agrees. But there is no issue of fact for whatever Merkle's
state of mind, the School Board had probable cause to
believe that she had committed an offense. I emphasize in
this regard that Merkle was donating unopened boxes of
crayons to the community center, items which surely had
some value for Merkle was not throwing them away. Thus,
even without regard for the enhanced requirements under
Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807 (1994), for
a 42 U.S.C. S 1983 malicious prosecution action, see Gallo
v. City of Philadelphia, 161 F.3d 217, 221-22 (3d Cir. 1998),
the malicious prosecution aspect of this case should fail.2
_________________________________________________________________

1. Considering the rather minor nature of the offense here, I agree that
an administrative disposition of the matter would have been appropriate.
But my view no more than that of the Common Pleas Court or majority
can detract from the fact that the School Defendants had probable cause
to believe that Merkle had committed a criminal offense.

2. Merkle correctly points out that in Gallo we indicated that in a
section
1983 malicious prosecution action a plaintiff might not be required to
establish all of the elements of the common law tort of malicious
prosecution. See Gallo, 161 F.3d at 222 n.6; but see Hilfirty v. Shipman,
91 F.3d 573, 579 (3d Cir. 1996) ("In order to state a prima facie case for
a section 1983 claim of malicious prosecution, the plaintiff must
establish the elements of the common law tort as it has developed over
time."). Nevertheless, inasmuch as the majority includes an analysis of
whether the School Defendants had probable cause to initiate the
criminal proceedings and the parties have briefed that issue, I, too, will
analyze the case on that basis. In any event, I believe that ultimately
the
courts will hold that a person will not have committed the constitutional
tort of malicious prosecution if he had probable cause to initiate the
criminal proceedings leading to the civil action. On the other hand,
however, depending on the facts developed, it would be possible to
sustain a First Amendment retaliation case predicated on the institution
of criminal proceedings even though the defendant had probable cause
to initiate the proceedings.

                               27
Merkle also argues that the School Defendants instituted
criminal and administrative proceedings against her in
retaliation for her exercise of her First Amendment rights.
Under Mt. Healthy City School District Board of Education v.
Doyle, 429 U.S. 274, 97 S.Ct. 568 (1977), where, as here,
a plaintiff accuses public actors of violating her First
Amendment rights by retaliating against her by reason of
First Amendment protected activity, a shifting burden of
proof analysis is required. First, the plaintiff must
demonstrate that she has engaged in First Amendment
protected activity. Undoubtedly Merkle did so. Then the
plaintiff must demonstrate that the defendants took an
adverse action against her. Undoubtedly, Merkle satisfied
her burden on this point as well for the School Defendants
gave information to the police that resulted in her criminal
prosecution and they suspended her as a teacher.

But it is not enough for a plaintiff to show merely that
she engaged in First Amendment activity and that she
subsequently suffered an adverse action from the public
actors who might have taken exception to that activity.
Rather, the plaintiff must demonstrate that her
constitutionally protected conduct was a "substantial" or
"motivating factor" in the defendant's conduct. Id. at 287,
97 S.Ct. at 576. Only if the plaintiff satisfies this initial
burden does the defendant have the burden to demonstrate
by a preponderance of the evidence that it would have
taken the same action in the absence of the protected
conduct. Id.3
_________________________________________________________________

3. Our cases indicate that a public employee's claim for a protected
activity, in this case free speech, should be analyzed in three steps: (1)
was the activity protected; (2) was the protected activity a substantial
or
motivating factor in the alleged retaliatory action; (3) would the
defendants have taken the same action even in the absence of the
protected activity. See Fultz v. Dunn, 165 F.3d 215, 218 (3d Cir. 1998),
cert. denied, 119 S.Ct. 2342 (1999); Latessa v. New Jersey Racing
Comm'n, 113 F.3d 1313, 1319 (3d Cir. 1997); Watters v. City of
Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995). The plaintiff has the
burden on the first two issues and if the third is reached the defendant
has the burden on it. I have analyzed the case as including four steps
as the second step includes two elements: did the defendants take an
action adverse to the public employee and, if so, was the motivation for
the action to retaliate against the employee for the protected activity.

                               28
In fact there is no evidence that Merkle's First
Amendment activity was a substantial or motivating factor
in the School Defendants' conduct in notifying the police as
to what she did or in suspending her. In this regard, I first
point out that it is significant that Merkle and not the
School Defendants set the events in motion which led to the
criminal charges and the suspension. Thus, it was Merkle
who made the determination to take the crayons. And it
was Merkle who decided when the crayons would be taken
and to whom she would give them.

Moreover, there is no direct evidence that Merkle's
protected activity prior to the crayon incident was a
substantial or motivating factor in the School Defendants'
actions leading to her prosecution or suspension.
Accordingly, unless a court will permit an inference to be
drawn that an employer's adverse action against an
employee can be regarded as retaliatory merely because the
employee has engaged in antagonistic First Amendment
activity, we must affirm. But by drawing such an inference,
we effectively will eliminate the plaintiff 's burden under Mt.
Healthy v. Doyle to demonstrate that the constitutionally
protected activity was a "substantial" or"motivating factor"
in the defendants' adverse action. Instead, when an
employee engages in First Amendment activity and suffers
an adverse employment action, we immediately will shift to
the defendants the burden to demonstrate that they would
have taken adverse action notwithstanding the employee's
having engaged in First Amendment activity.

I recognize that Merkle sets forth several reasons why she
thinks that she can demonstrate that the School
Defendants initiated the criminal proceedings in retaliation
for her free speech activities, but she merely demonstrates
that they may have had animosity toward her in part for
reasons unrelated to her First Amendment activity in issue
here. Br. at 30-31.4 In a sense, then, her argument is
_________________________________________________________________

4. In her brief Merkle indicates that "[a] jury could give credence to the
fact that [she] was subject to disparate treatment throughout the school
year -- subsequent to her speech at the board meeting and continued
advocacy before the principal." Br. at 31. In support of this contention
she cites her deposition. See app. at 139-40. There she testified to
matters completely discrete from the First Amendment activity
implicated here such as that she was "written up" because of time she
spent talking with a new student, she left work early, and she did not
like an "absurd schedule" that the school assigned her.

                               29
counterproductive. It is critical in considering this point to
recognize that a section 1983 retaliation case hinges on the
plaintiff demonstrating that her First Amendment activity
motivated the employer's adverse action. Thus, for example,
if an employer's motive in instituting criminal proceedings
against a teacher was that it thought that she was a poor
teacher it would not be liable to her in a section 1983
retaliation case.5

The closest that Merkle comes to demonstrating that she
was prosecuted by reason of engaging in First Amendment
activities is her charge "that participating teacher Nancy
Markowich (who initially suggested the crayon donation)
was not disciplined nor made subject to criminal
prosecution -- bolstering the claim of an improper
motivation." Br. at 31. But her argument here clearly fails
as Markowich was not involved in the actual removal of the
property and indeed was not even at the school when
Merkle removed it. Thus, Merkle cannot establish the nexus
between the school district taking action adverse to her and
her First Amendment activity by demonstrating that
Markowich received disparate and more favorable
treatment.

I make one final point with respect to the retaliatory
motivation issue. In Mt. Healthy v. Doyle, the Court said:

       The constitutional principle at stake is sufficiently
       vindicated if such an employee is placed in no worse a
       position than if he had not engaged in the conduct. A
       borderline or marginal candidate should not have the
       employment question resolved against him because of
       constitutionally protected conduct. But that same
       candidate ought not to be able, by engaging in such
       conduct, to prevent his employer from assessing his
       performance record and reaching a decision not to
       rehire on the basis of that record, simply because the
       protected conduct makes the employer more certain of
       the correctness of its decision.

429 U.S. at 285-86, 97 S.Ct. at 575. More recently, in
_________________________________________________________________

5. While it might be liable on some other basis no such issue is raised
here.

                                30
recognition of the type of concern expressed in Mt. Healthy
v. Doyle, we indicated as follows:

        We also make the following observation with respect
       to performance evaluations. While it is possible that a
       manager might make a poor evaluation to retaliate
       against an employee for making an EEOC charge, still
       it is important that an employer not be dissuaded from
       making what he believes is an appropriate evaluation
       by a reason of a fear that the evaluated employee will
       charge that the evaluation was retaliatory. In this
       regard, we are well aware that some employees do not
       recognize their deficiencies and thus erroneously may
       attribute negative evaluations to an employer's
       prejudice. Accordingly, in a case like this in which the
       circumstances simply cannot support an inference that
       the evaluations were related to the EEOC charges, a
       court should not hesitate to say so.

Shaner v. Synthes (USA), 204 F.3d 494, 505 (3d Cir. 2000).

The concern the Supreme Court expressed in Mt. Healthy
v. Doyle and that we expressed in Shaner v. Synthes is
implicated here. Why should the School Defendants have
been intimidated by the fact that Merkle had engaged in
First Amendment activities in their response when they
discovered her illegally removing School District property?
The lesson that the majority is sending to employers is
clear: even when you find your employee violating the
criminal law, be reluctant to bring criminal proceedings
against her if she has engaged in First Amendment activity,
lest you be faced with a retaliation claim. Unfortunately,
the lesson to employees is equally clear: make sure that
you engage in First Amendment activity in relation to your
employment in a manner calculated to antagonize the
supervisory personnel, because if you do so you later will
be able to charge that any action the employer takes
adverse to you is in retaliation for that activity. Moreover,
you should engage in antagonistic First Amendment activity
for the further reason that if you do so you may anticipate
that your employer will tolerate misconduct on your part
that it would not tolerate from employees not similarly
insulated from disciplinary proceedings. Furthermore, the
employer will favor you with respect to promotions and the

                                31
emoluments of your position because if it does not do so
you may bring retaliation charges against it.

The majority believes that my view that its opinion will
make employers reluctant to bring criminal proceedings
when an employee is found violating the law is
"groundless." Maj. op. at 22. It suggests that the School
Defendants "never had cause to find a criminal violation,
because it knew that Merkle acted without criminal intent."
Id. at 22. Thus, the majority believes that my dissent
"assumes that Merkle committed a criminal violation," id.,
an assumption that the majority believes "is negated by the
facts, the circumstances, and the law." Id .

In fact, my position is predicated on the plain
circumstance that the School Defendants had probable
cause to believe that Merkle committed a crime and is not
dependent on whether or not she in fact committed a
criminal act. There is simply no doubt but that the School
Defendants had cause to believe that Merkle was exercising
unlawful control over its property with an intent to deprive
the School District of the property. Obviously, the mere fact
that Merkle was not convicted does not mean that the
School Defendants did not have probable cause to institute
the criminal proceedings. After all, if the termination of the
criminal proceedings in favor of the plaintiff, i.e., the
defendant in the criminal proceedings, meant that the
criminal proceedings necessarily had been instituted
without probable cause then there would be no reason for
the courts to require the plaintiff to prove the absence of
probable cause in a malicious prosecution action as such
proof would add nothing to the requirement that the
criminal proceedings be terminated in the plaintiff 's favor.
In point of fact the majority opinion will come to have the
exact chilling effect on employers that I anticipate and
attorneys representing employers will read the majority
opinion and advise employers against bringing criminal
charges even when they have probable cause to do so.

While some people may take umbrage at my suggestion
as they will say that an honest and conscientious employer
always will be able to justify its actions, I live in the real
world and I believe that employers will take action to avoid
litigation which, after all, at best is expensive and time

                               32
consuming. In this regard I point out that even a successful
defendant in a retaliation action probably will not be able to
recover its legal expenses for its defense. See EEOC v. L.B.
Foster Co., 123 F.3d 746 (3d Cir. 1997) (Title VII action).
Moreover, litigation is risky so that even the best
intentioned employer may seek to avoid a potential
judgment.

I see no Fourteenth Amendment liberty interest
implicated here. In her brief Merkle explains that the
School "District's statement certainly could be read in such
a manner that would lead a reader to believe that a theft
had, in fact, occurred." Br. at 34. Her problem with this
point is that the School Defendants had probable cause to
believe that such was the case. Moreover, I am unaware of
anything in the dignified and restrained public statement of
the School District reprinted in the appendix which was not
true. See app. at 37-38. In fact, the School District set forth
the objective facts and then indicated that the police were
called to investigate, "and as a result of the investigation,
Detective Jack Hahn filed a criminal complaint charging
Lou Ann Merkle with theft, receiving stolen property and
criminal attempt at theft." Thus, it quite escapes me to
understand how the School Defendants infringed Merkle's
liberty interest. Indeed, it is a sensational irony that the
majority in a First Amendment case allows an action
predicated primarily on the School Defendants' truthful
statements about a matter of public interest to go forward
against them. Finally, Dr. Brown has qualified immunity
because he did not violate any constitutional right of
Merkle and surely he could have reasonably believed that
inasmuch as she was engaged in a theft of school property
she could be prosecuted. See In re City of Philadelphia
Litig., 49 F.3d 945, 960-61 (3d Cir. 1995).

I close with the following comment. While I can
understand the majority's belief that Merkle was treated
harshly, the precedent that it sets will come back to haunt
this court. Its conclusions with respect to probable cause
and infringement of Merkle's liberty interests simply are not
justified.

                               33
For the reasons that I state herein, I dissent from the
majority opinion to the extent that it reverses. In all other
respects I join its opinion.

A True Copy:
Teste:

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

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