                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-26-2006

Hill v. Kutztown
Precedential or Non-Precedential: Precedential

Docket No. 05-1356




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                                          PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                     __________

                        No. 05-1356
                        __________

                      KEITH A. HILL,
                                                 Appellant
                              v.

               BOROUGH OF KUTZTOWN
                 and GENNARO MARINO,
                MAYOR OF KUTZTOWN,
            in his individual and official capacity
                   ____________________

      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                       (04-cv-03390)
       District Judge: Honorable Robert F. Kelly, Sr.

                 Argued May 15, 2006
     Before: MCKEE and GARTH, Circuit Judges, and
               LIFLAND, District Judge *


      *
         The Honorable John C. Lifland, Senior District Judge
for the District of New Jersey, sitting by designation.

                              1
                   (Filed: July 26, 2006)

William P. Murphy, Esq. (ARGUED)
Murphy & Goldstein, P.C.
1616 Walnut Street, Suite 2000
Philadelphia, PA 19103

Counsel for Appellant

Timothy T. Myers, Esq. (ARGUED)
Raymond J. Santarelli, Esq.
John G. Dean, Esq.
Elliott Greenleaf & Siedzikowski, P.C.
Union Meeting Corporate Center V
925 Harvest Drive
Blue Bell, PA 19422

Paul J. Dellasega, Esq.
Thomas, Thomas & Hafer
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108

Counsel for Appellee Gennaro Marino, Mayor of Kutztown

Robyn F. McGrath, Esq. (ARGUED)
Sweeney & Sheehan, P.C.
1515 Market Street, 19 th Floor
Philadelphia, PA 19102



                             2
Michael T. Sellers, Esq.
Kardos, Rickles, Sellers & Hand
626 South State Street
Newtown, PA 18940

Counsel for Appellee Borough of Kutztown


                        __________

                OPINION OF THE COURT
                      __________

GARTH, Circuit Judge.

        On this appeal we review whether the District Court
erred when it dismissed Keith A. Hill’s complaint charging
Gennaro Marino (the former Mayor of the Borough of
Kutztown), and the Borough itself, with violating his rights
under the United States Constitution, federal and state
statutes, and the common law of Pennsylvania. The District
Court dismissed Hill’s 6-count complaint in its entirety. We
will affirm in part, and reverse in part.




                              3
                               I.

       Appellant Hill, a licensed professional engineer, was
appointed Borough Manager of Kutztown in early 1991. ¶¶4,
7.1 In this capacity, he reported to the Borough Council
(which consisted of six elected members) and, “in respect to
some subjects,” to Gennaro Marino, the elected Mayor of the
Borough. As Borough Manager, Hill was responsible for the
administration of all departments within the Borough. ¶¶10-
11.

       In short, Hill’s complaint alleges that Mayor Marino
harassed him and other Borough employees. When he
reported the Mayor’s harassment to the Borough Council, the
Mayor intensified his attacks on Hill as retaliation for this
reporting (and for positions Hill took that were contrary to the
Mayor’s positions). As a result of the Mayor’s conduct, Hill’s
workplace became so intolerable that he had no choice but to
resign.2

       More specifically, the complaint alleges as follows:


       1
        All paragraph citations in this opinion refer to the
complaint.
       2
        Hill’s employment was the responsibility of the
Borough Council. He could only be appointed and fired by the
Borough Council. 53 P A. C ONS. S TAT. §46141.

                               4
Shortly after he took office in 2002, Mayor Marino “began
orally to spread the word that he intended to get rid of” Hill
and “other high-priced senior staff employees.” ¶19. The
Borough Council became aware of, and disapproved of, the
things Marino was saying. Borough Council President Eric
Ely wrote a letter to a local newspaper, The Patriot, that
appeared in April, 2002 and stated:

       Another way Mr. Marino has hurt the borough is in the
       manner in which he has conducted himself in the bars,
       clubs and community with talk smearing the reputation
       of good people. He has made many statements in those
       places of how he is going to get rid of certain council
       members and plans to have this or that borough
       employee replaced . . . His statements concerning these
       individuals are hurting the borough because they . . .
       are based on false opinions . . . [T]hose statements are
       hurting the good reputation of our hard-working
       employees.

¶23.

       Marino’s conduct and behavior nevertheless continued.
He told the Chief of Police that he “would make life difficult
for him as a means to get him to resign as chief.” ¶37.
Further, he behaved in a hostile and intimidating manner
toward several other Borough employees, each of whom
approached Hill and told him about this treatment at the hands

                               5
of the Mayor. ¶¶24-27, 30-35.

        In addition to his threats to “get rid of” – and his
hostile treatment of – Borough employees, Mayor Marino also
made several false accusations against Hill. At a meeting of
the Borough Council on April 23, 2002, Mayor Marino
“demanded [Hill’s] resignation, purportedly because of his
involvement in certain appointments by [the] Council which
the Mayor described as a ‘plot’ that was corrupt and
criminal.” ¶22. Mayor Marino also told Borough employee
Frank Caruso that Hill was “illegally moving funds to confuse
everyone.” ¶28.

      “[A]s part of his duties as Manager,” Hill reported
Mayor Marino’s conduct towards him and towards the other
Borough employees to the Borough Council. ¶36.

        Apparently at the same time that all of the above was
occurring, Mayor Marino began “to attack the Borough’s
telecommunications project,” with which Hill was identified,
and which had traditionally enjoyed the support of the
Borough Council. The Mayor “made clear his utter distaste”
for the project. In response, Hill “advocated for [the
project’s] continuation.” ¶¶39-41.

      As retaliation (1) for Hill’s reporting the Mayor’s
conduct to the Borough Council, (2) for Hill’s advocacy in
support of the telecommunications project, and (3) for Hill’s

                                6
support of other unspecified positions that were associated
with the previous mayor, Mayor Marino continued his
persecution of Hill. ¶¶43, 110. Specifically, the Mayor
engaged in a series of “harassing, intimidating and oppressive
confrontations with [Hill] at his workplace and at Council
meetings,” and defamed Hill to Borough employees, and to
consultants present at Hill’s workplace, and to the public.
¶44.

       Hill sent a number of letters to the Borough Solicitor
and had multiple conversations with the Personnel Committee
of the Borough Council, asking each to “remedy the course of
conduct by Defendant Marino.” ¶45. In July 2002, Hill made
oral complaints to the Pennsylvania Human Relations
Commission (“PHRC”) and the Equal Employment
Opportunity Commission (“EEOC”). He subsequently filed a
written complaint with the PHRC. ¶¶48-49.

        The Mayor’s conduct nevertheless persisted. On
August 22, 2002, Mayor Marino published a “newspaper
commentary” in which he accused Hill of “irregular or
illegal” allocations of funds, and of “recklessly handling our
money.” ¶50. This accusation was false. The Borough of
Kutztown actually possessed a AAA credit rating. Moreover,
a bond attorney, a bond underwriter and Borough auditors had
verified the Borough’s solid financial condition and its
efficient management. ¶51.



                              7
       Prior to Mayor Marino’s public attacks on him, Hill
had enjoyed a reputation for honesty, integrity and
professionalism. ¶52. After Marino’s attacks, Hill was
“subjected to scorn and ridicule,” including one incident
where Hill’s son’s employer confronted Hill and Hill’s wife
and told them that he, the employer, had heard the Mayor
“was pursuing [Hill] concerning corruption.” ¶54.

        The Mayor’s conduct, and the Borough Council’s
failure to stop it, made life so intolerable for Hill that he
eventually had no choice but to resign. ¶55.3 Hill submitted a
letter of resignation on August 29, 2002, which stated that he
would cease work on October 12, 2002. ¶57.4

       The Borough Council continued to be upset about




       3
        The Mayor apparently acknowledged the connection
between the Mayor’s conduct and Hill’s resignation. At a
September 17, 2002 meeting of the Borough Council, Mayor
Marino stated that he deserved “credit” for Hill’s departure.
¶62.
       4
         Hill’s brief makes reference to an August 2004 report
that the Borough Council commissioned a Special Counsel to
write. The report apparently corroborates and adds further detail
to Hill’s allegations about the way Mayor Marino behaved
toward him.

                               8
Mayor Marino’s conduct, and the effect it was having.5 It
asked Hill to reconsider and stay on as Borough Manager.
Hill refused, but did agree to postpone his departure until
October 27, 2002. ¶¶66-67.

       Hill then accepted a position with “the engineering
consulting firm that had for years served in the role of
Borough engineer.” The Borough Council (by unanimous
vote) initiated and worked out a part-time emergency
“consulting” arrangement with that firm so that Hill could be
made available to assist with certain urgent Borough tasks,
such as budget preparation, in the period of transition to the
new Manager. ¶¶68-73. Hill worked in this capacity, without
receiving any additional salary for it, until January 2003,
when the Borough hired a replacement. ¶¶74-76. The
replacement was twenty-seven years old, ¶76, some fifteen or
sixteen years younger than Hill, who was over 40 years of age
when he left the Borough’s employ. ¶4.6


       5
        Two newspaper articles from September 2002 report
Council President Ely as saying that “the false accusations made
(by Marino) are detrimental to residents and the borough as a
whole,” and “[f]or the council the biggest thing is the
misinformation given out by [Mayor Marino] . . . It’s hard to
deal with. I’ve been on (council) for 27 years and I’ve never
seen anything like it.” ¶¶63-64.
       6
       The complaint alleges that Marino continued to harass
and defame Hill even after he had ceased to be Borough

                               9
       Hill brought this lawsuit against Mayor Marino (in his
individual and official capacities) and the Borough of
Kutztown. The complaint alleged that the Mayor’s campaign
of harassment, defamation and retaliation deprived Hill of his
job (through constructive discharge 7 ), and did damage to his


Manager. It alleges that the Mayor filed complaints with two
state agencies based on Hill’s transitional service to the
Borough, and wrote letters to various governmental agencies
and officials – as well as private individuals and media
organizations – in which he implied that Hill had mishandled
funds. These allegations are irrelevant to this appeal – which is
based on claims arising out of Hill’s constructive discharge – as
they detail events that occurred after the constructive discharge.
       7
           “Under the constructive discharge doctrine, an
employee’s reasonable decision to resign because of
unendurable working conditions is assimilated to a formal
discharge for remedial purposes.” Pennsylvania State Police v.
Suders, 542 U.S. 129, 141 (2004) (discussing constructive
discharge in the context of a Title VII sexual harassment suit).
“The inquiry is objective: Did working conditions become so
intolerable that a reasonable person in the employee’s position
would have felt compelled to resign?” Id.
        The District Court did not address the question of
whether Hill has alleged conditions so intolerable that a
reasonable person in his position would have felt compelled to
resign, i.e., whether he, in fact, was constructively discharged.
It would have been inappropriate for the District Court to decide
that fact-intensive question in the context of a 12(b)(6) motion.

                               10
reputation and his ability to earn a living as a licensed
professional engineer and a public servant See, e.g., ¶¶14, 58,
106. He further alleged that the Borough Council “did not
halt, reverse or lessen or otherwise materially affect the
alleged offending conduct of the Mayor.” See, e.g., ¶16.

        Hill’s complaint asserted §1983 8 claims against both
the Mayor and the Borough for violation of his (1) procedural
due process rights, (2) substantive due process rights, (3)
equal protection rights and (4) First Amendment rights under
the U.S. Constitution. The complaint also asserted against the
Borough (5) a claim under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §621, et seq., and
state law claims for (6) violation of the Pennsylvania Human
Relations Act (“PHRA”), 43 P A. C ONS. S TAT. §951, et seq.
and (7) indemnification and restitution. Finally, the complaint


Thus, for the purpose of this opinion, we credit all allegations of
Hill’s complaint and accept what Hill alleges: that he was
constructively discharged.
       8
         “Section 1983 imposes civil liability upon any person
who, acting under the color of state law, deprives another
individual of any rights, privileges, or immunities secured by the
Constitution or laws of the United States.” Shuman ex rel.
Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir.
2005). See 42 U.S.C. §1983. Mayor Marino does not dispute
that he was acting under color of state law when he engaged in
the conduct at issue here.

                                11
asserted against the Mayor a (8) state law malicious
prosecution claim.

        Pursuant to Rule 12(b)(6), the District Court dismissed
all of the federal claims against both the Mayor and the
Borough, and the PHRA claim against the Borough. It then
declined to exercise jurisdiction over the remaining pendent
state common law claims.

                              II.

      The District Court exercised jurisdiction pursuant to 28
U.S.C. §§1331, 1343 and 1367. We have jurisdiction
pursuant to 28 U.S.C. §1291.

        Our review of the District Court’s dismissal of the
complaint is plenary. “When considering an appeal from a
dismissal of a complaint pursuant to Rule 12(b)(6), we accept
as true all well-pled factual allegations. We examine whether,
under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.” Delaware Nation v. Pennsylvania,
446 F.3d 410, 415 (3d Cir. 2006) (citations omitted).

                              III.

                              A.

       We first address Hill’s §1983 claims against Mayor

                              12
Marino,9 and Marino’s immunity defenses.

              1. Procedural Due Process Claims10


       9
          Hill brings claims against Mayor Marino “in his
individual and official capacity.” Section IIIA of this opinion
addresses the §1983 individual capacity claims against Marino.
The §1983 official capacity claims against Marino are,
effectively, identical to the §1983 claims against the Borough,
which are addressed in Section IIIB(1) of this opinion. See, e.g.,
Kentucky v. Graham, 473 U.S. 159, 165 (1985)
(“Official-capacity suits . . . generally represent only another
way of pleading an action against an entity of which an officer
is an agent”) (quotation and citation omitted); A.M. ex rel.
J.M.K. v. Luzerne County Juvenile Det. Ctr., 372 F.3d 572, 581
(3d Cir. 2004) (“A suit against a governmental official in his or
her official capacity is treated as a suit against the governmental
entity itself.”).
       10
           We have held that a resignation will be deemed
involuntary (i.e., deemed a constructive discharge) and will thus
trigger the protections of the due process clause, and form the
basis of a §1983 due process claim, under only two
circumstances: (1) when the employer forces the employee’s
resignation or retirement by coercion or duress, or (2) when the
employer obtains the resignation or retirement by deceiving or
misrepresenting a material fact to the employee. Leheny v. City
of Pittsburgh, 183 F.3d 220, 228 (3d Cir. 1999). At least one
other court that applied this Leheny standard has recently held
that the less strict constructive discharge standard the Supreme

                                13
        To state a claim under §1983 for deprivation of
procedural due process rights, a plaintiff must allege that (1)
he was deprived of an individual interest that is encompassed
within the Fourteenth Amendment’s protection of “life,
liberty, or property,” and (2) the procedures available to him
did not provide “due process of law.” Alvin v. Suzuki, 227
F.3d 107, 116 (3d Cir. 2000).

        Hill advances two procedural due process claims.
¶¶100-106, 114-120. He first raises a classic property-based
procedural due process claim, arguing that when Mayor
Marino constructively discharged him, he was deprived of his
right to continued employment without due process. He then
raises a so-called “stigma-plus” claim, arguing that when
Marino defamed him in the course of discharging him, he was
deprived of his liberty interest in his reputation “without
opportunity for any meaningful procedure.” ¶105, 119.

                      a. Property Interest

        The District Court properly concluded that Hill failed
to state a claim for deprivation of his right to retain his job
without due process because Hill’s interest in retaining his job


Court articulated in Pennsylvania State Police v. Suders, 542
U.S. 129, 141 (2004), see footnote 7, is now “equally
applicable” in the context of a due process claim, see Levenstein
v. Salafsky, 414 F.3d 767, 774 (7th Cir. 2005).

                               14
was not “encompassed within the Fourteenth Amendment’s
protection of property.” “To have a property interest in a job
. . . a person must have more than a unilateral expectation of
continued employment; rather, she must have a legitimate
entitlement to such continued employment.” Elmore v.
Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (citing Bd. of
Regents v. Roth, 408 U.S. 564, 577 (1972)). Whether a
person has a legitimate entitlement to – and hence a property
interest in – his government job is a question answered by
state law. Id.

      Pursuant to Pennsylvania law, Hill was an at-will
employee.11 “The decisional law is clear that an at-will


      11
           53 P A. C ONS. S TAT. §46141 states:

      The council of any borough may, at its discretion, at any
      time, create by ordinance the office of borough manager
      and may in like manner abolish the same. While said
      office exists, the council shall, from time to time, and
      whenever there is a vacancy, elect, by a vote of a
      majority of all the members, one person to fill said
      office, subject to removal by the council at any time by
      a vote of the majority of all the members.

       We note that the Borough of Kutztown Code also
includes a provision that reinforces the Borough Manager’s at-
will employment status. Section 29-7 of that Code states, in
pertinent part,

      The Borough Manager (hereinafter referred to as the
      “Manager”) shall be appointed for an indefinite term by
      a majority of all members of the Council. The Manager
      shall serve at the pleasure of the Council, and he may be

                                15
employee does not have a legitimate entitlement to continued
employment because [he] serves solely at the pleasure of [his]
employer.” Elmore, 399 F.3d at 282. Hill thus lacked a
property interest in retaining his position as Borough Manager
that was “sufficient to trigger due process concerns.” Id.12
We therefore need not consider whether the procedures
available to him provided due process in order to conclude



       removed at any time by a majority vote of all of the
       members of the Council.
       12
          Hill’s claim that his substantive due process rights were
violated when he was constructively discharged, fails for similar
reasons. To prevail on a substantive due process claim
challenging a state actor’s conduct, “a plaintiff must establish
as a threshold matter that he has a protected property interest to
which the Fourteenth Amendment's due process protection
applies.” Nicholas v. Pennsylvania State Univ., 227 F.3d 133,
139-140 (3d Cir. 2000) (Alito, J.) (quotation marks and citation
omitted). Whether a property interest is protected for purposes
of substantive due process is a question that is not answered by
reference to state law. Rather, for a property interest to be
protected for purposes of substantive due process, it must be
“fundamental” under the United States Constitution. Id. at 140.
This court has held explicitly that public employment is not a
fundamental right entitled to substantive due process protection.
Id. at 142-143.
        To the extent Hill’s substantive due process claim was
based not only on loss of his job, but also on reputational injury
that decreased his “ability to earn a living,” it also fails. See
Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396,
399-404 (3d Cir. 2000) (defamatory statements that curtail a
plaintiff’s business opportunities do not suffice to support a
substantive due process claim).

                                16
that the District Court should be affirmed on Hill’s claim that
he was deprived of employment without due process.

                       b. Liberty Interest

       In his second procedural due process claim, Hill
alleges that he suffered harm to his reputation and ability to
earn a living in his chosen profession as a result of the
defamatory statements Marino made about him in the process
of constructively discharging him; he claims Marino’s
scurrilous and false charges deprived him of a liberty interest
protected by the due process clause. The District Court
dismissed this claim for this same reason it denied Hill’s other
procedural due process claim: because Hill lacked a property
interest in retaining his job.

        Relying on Satterfield v. Borough of Schylkill Haven,
12 F.Supp.2d 423, 433-434 (E.D.Pa. 1998), the District Court
held that defamation such as that with which Hill charges
Marino, does not implicate a liberty interest protected by the
due process clause unless it “occurs in the course of or is
accompanied by . . . extinguishment of a right or status
guaranteed by law or the Constitution.” Because Hill lacked a
property interest in retaining his job under state law, the
District Court held, Hill was not deprived of such a right or
status when he was constructively discharged. Accordingly,
Hill’s due process claim failed.

       This court has yet to decide the question of whether a
public employee who is defamed in the course of being
discharged, fails to state a claim for deprivation of a liberty
interest merely because he lacked a property interest in


                               17
continued employment that is independently protected by the
due process clause. See Graham v. City of Philadelphia, 402
F.3d 139, 142 n.2 (3d Cir. 2005) (“we have not yet decided
this issue”); Ersek v. Township of Springfield, 102 F.3d 79, 83
n.5 (3d Cir. 1997) (“Fortunately, we need not reach this
difficult question here.”).13 Hill’s appeal now presents that
issue squarely.

       The Supreme Court held in Wisconsin v.
Constantineau, 400 U.S. 433 (1971) that an individual has a
protectable interest in reputation. “Where a person's good
name, reputation, honor, or integrity is at stake because of
what the government is doing to him, notice and an
opportunity to be heard are essential.” Id. at 437.

       Courts have subsequently clarified, however, that
“reputation alone is not an interest protected by the Due
Process Clause.” Versarge v. Township of Clinton, New
Jersey, 984 F.2d 1359, 1371 (3d Cir. 1993) (citing Paul v.
Davis, 424 U.S. 693, 701-712 (1976)) (emphasis added).14


       13
          The district court in Satterfield v. Borough of Schylkill
Haven, itself recognized that. 12 F.Supp.2d 423, 434 (E.D.Pa.
1998) (“the Third Circuit has not decided whether something
less than a true property interest, independently protected by the
Due Process Clause, can satisfy the requirement of a ‘right or
status’ guaranteed by the Constitution”) (quoting Paul v. Davis,
424 U.S. 693, 711 (1976)).
       14
         According to the Supreme Court, damage to reputation
alone is best vindicated with a state defamation claim. Paul v.
Davis, 424 U.S. 693, 712 (1976). We recognize, however, that
state law immunity doctrines often prevent such claims from

                                18
Rather, to make out a due process claim for deprivation of a
liberty interest in reputation, a plaintiff must show a stigma to
his reputation plus deprivation of some additional right or
interest. Paul v. Davis, 424 U.S. 693, 701 (1976). Accord,
e.g., Siegert v. Gilley, 500 U.S. 226, 233-234 (1991);
Edwards v. California Univ. of Pennsylvania, 156 F.3d 488,
492 (3d Cir. 1998); Kelly v. Borough of Sayreville, 107 F.3d
1073, 1077-1078 (3d Cir. 1997); Ersek, 102 F.3d at 83 n. 5;
Clark v. Township of Falls, 890 F.2d 611, 619-620 (3d Cir.
1989); Sturm v. Clark, 835 F.2d 1009, 1012-1013 (3d Cir.
1987). We have referred to this as the “stigma-plus” test.
See, e.g., Graham, 402 F.3d at 142 n.2; Ersek, 102 F.3d at 83
n.5.

        In the public employment context, the “stigma-plus”
test has been applied to mean that when an employer “creates
and disseminates a false and defamatory impression about the
employee in connection with his termination,” it deprives the
employee of a protected liberty interest. Codd v. Velger, 429
U.S. 624, 628 (1977). The creation and dissemination of a
false and defamatory impression is the “stigma,” and the
termination is the “plus.” When such a deprivation occurs,
the employee is entitled to a name-clearing hearing.15


being brought against government actors. See, e.g., Lindner v.
Mollan, 677 A.2d 1194, 1195-1196 (Pa. 1996) (doctrine of
absolute privilege exempts a high public official from all civil
suits for damages arising out of false defamatory statements
provided the statements are made in the course of the official’s
duties or powers and within the scope of his authority).
       15
        Codd v. Velger, 429 U.S. 624, 627 (1977); Graham,
402 F.3d at 144; Ersek, 102 F.3d at 84; Doe v. U.S. Dept. of

                               19
       To satisfy the “stigma” prong of the test, it must be
alleged that the purportedly stigmatizing statement(s) (1) were
made publicly, Bishop v. Wood, 426 U.S. 341, 348 (1976);
Chabal v. Reagan, 841 F.2d 1216, 1223-1224 (3d Cir. 1988);
Anderson v. City of Philadelphia, 845 F.2d 1216, 1222 (3d
Cir.1988), and (2) were false. Codd, 429 U.S. at 627-629;
Fraternal Order of Police v. Tucker, 868 F.2d 74, 82-83 (3d
Cir.1989).

        Hill has clearly alleged that Marino defamed him by
accusing him of wrongdoing. He alleges that the accusations
were made publicly – before his colleagues and before the
general public (at Borough Council meetings and in
newspaper articles). He alleges that the accusations were
false, and that they tarnished his reputation and “subjected
[him] to scorn and ridicule.” 16 His complaint thus adequately



Justice, 753 F.2d 1092, 1112-1114 (D.C. Cir. 1986). We have
not in the past decided – and do not have occasion to decide here
– whether a plaintiff who prevails on a “stigma-plus” claim may
be entitled to remedies other than a name-clearing hearing. See
Ersek, 102 F.3d at 84 n.6.
       16
          The Mayor suggests that his statements about which
Hill complains could not be sufficiently stigmatizing because
they addressed “matters of public concern” (a phrase of art
relevant in the First Amendment context), or because they were
one public servant’s statements about another public servant’s
performance of his public job. The statements about which Hill
complains are not statements of opinion about the issues of the
day, however, or standard comments made among politicians in
the rough-and-tumble that is local politics. He complains about
factual allegations of illegal conduct, that allegedly were false,

                               20
alleges the “stigma” prong of the “stigma-plus” test.

        What is required to satisfy the “plus” prong of the test
in the public employment context is more equivocal. The
Supreme Court precedent is not crystal clear on whether
termination from government employment constitutes a
sufficient “plus” when, as a matter of state law, the plaintiff
lacked a property interest in retaining his job.

        In Paul v. Davis, the Court stated, somewhat
enigmatically, that the “plus” had to be an alteration or
extinguishment of “a right or status previously recognized by
state law.” 424 U.S. at 711. That Court’s treatment of Board
of Regents v. Roth, 408 U.S. 564, 573 (1972) suggests that,
under this standard, a person’s loss of employment to which
he did not hold a state law-created property interest is a
sufficient “plus.”

        In Roth, a non-tenured professor who had not been
reappointed after his initial one-year term ended claimed he
had been deprived of a right to continued employment without
due process. The Court denied his claim, finding that the
professor, because he was not tenured, did not have a property
right to continued employment. It noted, however, that had
the University defamed the professor in the course of
declining to rehire him, it would have deprived the professor
of a liberty interest. Id. at 573. It came to this conclusion



see, e.g., ¶28, and that the Mayor allegedly knew were false.
See, e.g., ¶51. They are not protected as a matter of law by any
exception for “matters of public concern” or “public servant”
exception.

                               21
despite the fact that the professor lacked a property interest in
his job. The Court in Paul v. Davis – and then in later
opinions – impliedly endorsed this conclusion. 424 U.S. at
709-710.17 See also Siegert, 500 U.S. at 233; Owen v. City of
Independence, 445 U.S. 622, 633 n.13 (1980).

        Though it has never again taken this issue on directly,
the Court in subsequent opinions has reiterated that the “plus”
in “stigma-plus” claims arising out of public employment
decisions, may be loss of a job in which the plaintiff held no
property interest under state law. In Owen, the Eighth Circuit
had held that the police chief petitioner “possessed no
property interest in continued employment,” but that allegedly
false accusations the city made incident to his discharge “had
blackened petitioner’s name and reputation, thus depriving
him of liberty without due process of law.” 445 U.S. at 631.
Citing Roth and Paul v. Davis, the Supreme Court held that it
had “no doubt that the Court of Appeals” was correct in this
conclusion. Id. at 633 n.13. Similarly, in Codd v. Velger, the
Court stated that “where a non-tenured employee has been
stigmatized in the course of a decision to terminate his
employment,” he is entitled to a name-clearing hearing. 429
U.S. at 627.18


       17
          We previously pointed to this implication of Paul v.
Davis in Ersek v. Township of Springfield, 102 F.3d 79, 83 n.5
(3d Cir. 1997).
       18
          In Codd v. Velger, the Court denied the claim of the
petitioner – a probationary employee who lacked a property
interest in his job – not because he was probationary, but
because he failed to allege that the information that had been
disclosed was false. 429 U.S. at 627-628.

                               22
        We, too, have never clearly answered the question
whether termination from a government job constitutes a
sufficient “plus” under the “stigma-plus” test when, as a
matter of state law, the plaintiff lacked a property interest in
retaining the job. On at least one occasion we have suggested
that it might. See McKnight v. SEPTA, 583 F.2d 1229, 1235-
1242 (3d Cir. 1978) (holding that a complaint stated a
“stigma-plus” due process claim where the plaintiff was
defamed in the course of being discharged, though it was not
clear under state law whether he had a property interest in
continued employment).

        We have in several cases used language that could be
read broadly to require that the “plus” be loss of a job in
which the plaintiff had a protectible property interest. See
Ersek, 102 F.3d at 83 n.5 (noting this). These cases, however,
are all factually distinguishable. In each of them, we held that
the deprivation the plaintiff suffered along with stigma to his
reputation was not sufficiently weighty to satisfy the “plus”
requirement. We so held because the plaintiff did not lose his
job, and instead complained about some adverse employment
action less drastic than discharge. See Edwards, 156 F.3d at
492 (plaintiff was suspended with pay, but was not fired);
Kelly, 107 F.3d at 1077-1078 (plaintiff was reprimanded and
disciplined, but was never suspended, removed, fined or
reduced in rank); Clark, 890 F.2d at 617-620 (plaintiff’s
duties were changed, but he did not lose his job, and neither
his grade nor his pay was lowered); Robb, 733 F.2d at 294
(plaintiff was transferred and denied a promotion, but
remained employed by the City of Philadelphia at the same
classification level and pay scale that he had previously had).
See also Versarge, 984 F.2d at 1370-1371 (plaintiff lost job as


                               23
firefighter, but job was only a volunteer position to begin
with). Here, however, Hill did lose his job. The “plus,”
consisting of Hill’s constructive discharge was substantial –
so substantial, in fact, that we can comfortably hold that Hill
has met all requirements of “stigma-plus.”

         We therefore conclude today that a public employee
who is defamed in the course of being terminated or
constructively discharged satisfies the “stigma-plus” test even
if, as a matter of state law, he lacks a property interest in the
job he lost.

       We note that other courts have come to this conclusion,
mostly based on Supreme Court language in Paul v. Davis.
See, e.g., Doe v. U.S. Dept. of Justice, 753 F.2d 1092, 1104-
1112 (D.C. Cir. 1985); Dennis v. S&S Consol. Rural High
Sch. Dist., 577 F.2d 338, 342-343 (5th Cir. 1978); Colaizzi v.
Walker, 542 F.2d 969, 973 (7th Cir. 1976).

        We believe that this conclusion makes good sense, and
is logical. To hold otherwise – that a government employee
must be deprived of a state law-created property interest in
continued employment in order to satisfy the “plus” in a
“stigma-plus” claim – would

       equate the interests protected by the property clause of
       the [fourteenth] amendment with those protected by the
       liberty clause . . . [T]he liberty clause would be
       stripped of any independent meaning in the context of
       government defamation. Government employees who
       enjoy an independent property interest in continued
       employment, of course, must be afforded due process


                               24
       upon termination regardless of whether they are
       discharged in connection with stigmatizing allegations.
       That process will ordinarily afford those employees an
       opportunity to refute stigmatizing allegations. The
       liberty clause, by contrast, protects reputation, not job
       tenure, in the government employment context.
       Although Paul requires the alteration of some
       governmentally recognized status in addition to
       defamation, the Paul court plainly declined to equate
       that additional component with an independent,
       constitutionally protected property interest.

Doe, 753 F.2d at 1108 n.15.

        Hill has alleged that Marino’s defamation occurred in
connection with his discharge. Under our holding today, this
is sufficient to satisfy the “plus” prong of the “stigma-plus”
test, despite the fact that Hill was an at-will employee and did
not have a property interest in continued employment under
state law.

       Hill has thus alleged deprivation of a liberty interest
protectible under the due process clause. Hill was not given
the process he was due – a name-clearing hearing.19 He has
consequently stated a claim for deprivation of his liberty
interest in his reputation without the process the U.S.
constitution requires.


       19
          It is not clear from the complaint whether Hill
requested any sort of name-clearing hearing, but we have not
held that he was required to do so. See Ersek, 102 F.3d at 84
n.8.

                               25
                   2. Equal Protection Claim

        Hill also claims that his rights under the Equal
Protection clause were violated when Marino constructively
discharged him. ¶103. He invokes the “class of one” theory
announced in Village of Willowbrook v. Olech, 528 U.S. 562
(2000) (per curiam). According to that theory, a plaintiff
states a claim for violation of the Equal Protection clause
when he “alleges that he has been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Id. at 564.
The District Court dismissed this claim, and we will affirm,
but on a different basis.

        Our court has not had the opportunity to consider the
equal protection “class of one” theory at any length. From the
text of Olech itself, however, it is clear that, at the very least,
to state a claim under that theory, a plaintiff must allege that
(1) the defendant treated him differently from others similarly
situated, (2) the defendant did so intentionally, and (3) there
was no rational basis for the difference in treatment.

       Hill’s claim must fail because he does not allege the
existence of similarly situated individuals – i.e., Borough
Managers – who Marino treated differently than he treated
Hill. See, e.g., Levenstein v. Salafsky, 414 F.3d 767, 776 (7th
Cir. 2005) (affirming a grant of judgment for the defendant on
the equal protection “class of one” claim of a professor who
alleged he had been constructively discharged, because the
professor failed to identify another similarly situated
individual who had been treated differently). In fact, the only
other Borough employees Hill mentions in his complaint were


                                26
also harassed and threatened by Mayor Marino. ¶¶25-35.

                 3. First Amendment Claims

        Hill alleges that the Mayor’s harassment and
defamation were retaliation for Hill’s speech and political
association. First, Hill alleges, Marino retaliated against him
because Hill reported Marino’s mistreatment of him and his
colleagues to the Borough Council. In addition, Hill alleges,
Marino retaliated against him for advocating and supporting
ideas, principles and projects Marino disfavored, including
the telecommunications project. Finally, Hill alleges, the
Mayor retaliated against him because he supported the
previous mayor’s policies and programs. Hill claims that
Marino’s retaliation interfered with his First Amendment
rights to expression, to association and to petition government
for redress of grievances. ¶110.

                               a.

        Without citation to any authority, the District Court
dismissed this claim on the ground that Marino could not
retaliate against, or constructively discharge, Hill because he
lacked the power to fire him – a power which, under 53 P A.
C ONS. S TAT. §46141, only the Borough Council possessed.
“Hill could not be retaliated [against] by the Mayor for Hill’s
statements,” the District Court held, “because as a matter of
Pennsylvania and local law, the Mayor had no authority . . .
whatsoever over Hill’s employment status.”

       If it were true that Marino could not constructively
discharge Hill because he lacked the power to fire Hill


                               27
outright, all of Hill’s claims against Marino would fail for this
reason because they are all premised on Marino’s constructive
discharge of Hill. However, Marino could constructively
discharge Hill even though he lacked the statutory authority to
fire Hill outright. A supervisor who lacks the power to
terminate a subordinate’s employment may nonetheless abuse
his power with respect to that subordinate, and may even
constructively discharge the subordinate, provided he (the
supervisor) exercises some power over the employee.
Bonenberger v. Plymouth Township, 132 F.3d 20, 23-25 (3d
Cir. 1997).20

       In Bonenberger, a police officer who worked as a
dispatcher sued a Sergeant whose repeated sexual harassment
of the officer drove her to resign. The Sergeant “had no
authority to hire, fire or make any employment decision[s]
regarding” the dispatcher, but he did outrank her, and did
sometimes supervise her work. Id. at 22-23. When the
Sergeant supervised the dispatcher’s work, he “had sole
control over her work environment, determining when she . . .
might take a break and which tasks [she] would perform.” Id.
at 22. He “could alter her workload whenever he supervised
her shift.” Id. at 24. If she “failed to follow his orders, the
police department would view that failure as insubordination
for which [she] properly could begin a disciplinary process
that might result in her discharge.” Id.


       20
          See also Wagner v. Devine, 122 F.3d 53, 55 n.4 (1st
Cir. 1997) (defendant city council members had the power to
constructively discharge plaintiff police chief though they
lacked the power to fire him because they had the power to set
his salary, benefits and working conditions).

                               28
       The District Court (in the context of “color of state
law”) granted summary judgment for the Sergeant on the
ground that he did not have the power to make employment
decisions regarding the police officer.21 This court reversed,
noting

       A state employee may, under certain circumstances,
       wield considerable control over a subordinate whose
       work he regularly supervises, even if he does not hire,
       fire, or issue regular evaluations of her work . . . There
       is simply no plausible justification for distinguishing
       between abuse of state authority by one who holds the
       formal title of supervisor, on the one hand, and abuse
       of state authority by one who bears no such title but
       whose regular duties nonetheless include a virtually
       identical supervisory role, on the other . . . [T]he
       essence of section 1983's color of law requirement is
       that the alleged offender, in committing the act
       complained of, abused a power or position granted by
       the state.

Id. at 23-24.


       21
          The court articulated its holding in terms of state
power: it held that because the Sergeant lacked sufficient power
over the police officer, he could not meet the “color of state
law” requirement of §1983. However, its holding was
essentially the same as the District Court’s holding in this case,
even though here the district court articulates its holding in
terms of the “authority over employment status.” Both district
courts found that a plaintiff could not sue a defendant for
constructive discharge where the defendant lacked the power to
terminate the plaintiff outright.

                               29
       Hill alleged that he “reported to the Borough Council
consisting of six elected Council members (which served as
Plaintiff’s supervisor) and, in respect to some subjects, to one
elected mayor (Defendant Marino) of the Borough of
Kutztown.” ¶10. He has thus alleged – at least for the
purpose of this motion – that Marino wielded sufficient power
with respect to Hill, that Marino could constructively
discharge Hill, even though only the Borough Council could
fire Hill outright.

       Pennsylvania statutes are not all that informative about
the powers mayors have over employees holding the position
of Borough Manager – the position that Hill held.22
Discovery will reveal whether Marino had sufficient
supervisory power over Hill day-to-day, that he could
constructively discharge Hill under the authority of
Bonenberger. For now, Hill’s allegations about the manner in


       22
          The Pennsylvania statute listing the duties of a Borough
Mayor states that “it shall be the duty of the mayor . . . to exact
a faithful performance of the duties of the officers appointed.”
53 P A. C ONS. S TAT. §46029(1). Pursuant to 53 P A. C ONS. S TAT.
§46142 , “the mayor may delegate to the borough manager any
of his nonlegislative and nonjudicial powers and duties,” with
the approval of the Borough Council. It is the Borough Council
– and not the Mayor – however, which sets the Borough
Manager’s’ hours and compensation. 53 P A. C ONS. S TAT.
§46101. But the Mayor works as a member of the Borough
Council under certain circumstances. See, e.g., 53 P A. C ONS.
S TAT. §§46007 (“Passage, approval and veto of ordinances”)
and 46003 (“When the mayor may preside over council and
vote; [providing for] attendance of mayor at council meetings;
breaking tie votes”).

                                30
which Marino exercised his mayoral powers are more than
sufficient to withstand dismissal of Hill’s complaint under
12(b)(6). Hence we are satisfied that pursuant to Hill’s
allegations, which we must credit, Marino had the “power” to
constructively discharge Hill.

                               b.

        We turn now to examine whether Hill’s allegations are
sufficient to establish that his constructive discharge occurred
in retaliation for Hill’s exercise of his First Amendment
rights.

        To state a First Amendment retaliation claim, a
plaintiff must allege two things: (1) that the activity in
question is protected by the First Amendment, and (2) that the
protected activity was a substantial factor in the alleged
retaliatory action. See, e.g., Phyllis Hill v. City of Scranton,
411 F.3d 118, 125 (3d Cir. 2005).23 The first factor is a
question of law; the second factor is a question of fact.
Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir. 2004).

                        i. Hill’s Speech

      A public employee’s statement is protected activity
when (1) in making it, the employee spoke as a citizen, (2) the


       23
         A defendant may defeat the plaintiff’s claim by
demonstrating that the defendant would have taken the same
adverse action in the absence of plaintiff's protected conduct.
See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 287 (1977).

                               31
statement involved a matter of public concern, and (3) the
government employer did not have “an adequate justification
for treating the employee differently from any other member
of the general public” as a result of the statement he made.
Garcetti v. Caballos, --- U.S. ----, ----, 126 S.Ct. 1951, 1958
(2006). A public employee does not speak “as a citizen”
when he makes a statement “pursuant to [his] official duties.”
Id. at 1960. “Whether an employee’s speech addresses a
matter of public concern must be determined by the content,
form, and context of a given statement, as revealed by the
whole record.” Rankin v. McPherson, 483 U.S. 378, 384
(1987) (quoting Connick v. Myers, 461 U.S. 138, 147-148
(1983)).

        Hill’s complaint states that “[h]aving received
complaints from employees [of the Borough] about hostile,
intimidating, oppressive and harassing actions by Defendant
Marino, Plaintiff as part of his duties as Manager and
otherwise duly reported them, as well as his own complaints
about the same kind of behavior, to Borough Council.” ¶36
(emphasis added). In his brief, Hill states that he “relayed his
and other workers’ complaints [to the Borough Council] in
fulfillment of his responsibilities as manager and appointed
enforcer of the Borough’s Affirmative Action/Equal
Employment Opportunity Policy and Program.” Brief at 3.

        Insofar as it is based on this report to the Borough
Council, Hill’s First Amendment claim must fail because, as
Hill himself concedes, he reported Marino’s conduct and
harassing actions to the Borough Counsel “pursuant to his
official duties.” Under Garcetti, then, he was not speaking
“as a citizen” when he made these reports, and, thus, as a


                               32
matter of law, the reports are not protected speech.24

       We next consider Hill’s First Amendment retaliation
claim insofar as it is premised on his advocating and
supporting ideas, principles and projects Marino disfavored,
including the telecommunications project.

      First, the complaint does not indicate that when Hill
expressed support for the telecommunications project – as
when he complained to the Borough Council – he was
speaking pursuant to his official duties, so we read the


       24
           Hill appears to allege that his report to the Borough
Council could be protected by the First Amendment not only as
expressive speech, but also as “petitioning activity.” ¶110.
When a public employee’s activity qualifies as “petitioning the
government” – such as filing a grievance pursuant to a collective
bargaining agreement, or suing his employer – it is protected
activity so long as the petition was not frivolous, or a “sham,”
regardless of whether the petition involved a matter of public
concern. Brennan v. Norton, 350 F.3d 399, 417 (3d Cir. 2003);
San Filippo v. Bongiovanni, 30 F.3d 424, 434-443 (3d Cir.
1994). We have never held, however, that a report of a
superior’s misconduct to a legislative body when the legislative
body is also the reporter’s employer constitutes “petitioning
activity.”
        Hill’s complaints to the PHRC and the EEOC, ¶¶48-49,
might well qualify as “petitioning,” and thus would constitute
protected activity. See, e.g., Herr v. Pequea Township, 274 F.3d
109, 115 (3d Cir. 2001) (“The First Amendment right to petition
extends to all departments of government . . . The protection it
affords thus applies . . . to petitioning state agencies”). Hill has
not, however, alleged that Marino retaliated against him for
these complaints. ¶110.

                                33
complaint to allege that Hill was speaking “as a citizen.” See
Delaware Nation, 446 F.3d at 415 (on a 12(b)(6) motion, the
court examines “whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.”)
(emphasis added).

      Second, we cannot determine in this procedural posture
whether the speech involved a matter of public concern.25
That determination must be made after an examination of “the
content, form, and context of [the] statement, as revealed by
the whole record.” Rankin, 483 U.S. at 384.

       Nor can we resolve at this stage of this case the
question of whether Marino had “an adequate justification for
treating the employee differently from any other member of
the general public” by restricting his speech. Garcetti, 126
S.Ct. at 1958.

         Finally, Hill has alleged the requisite causality by
claiming that his support for the telecommunications project
and other projects and ideas the Mayor opposed, was one of
the reasons that Mayor Marino retaliated against him. See,
e.g., ¶110, 113.




       25
          “A public employee’s speech involves a matter of
public concern if it can be fairly considered as relating to any
matter of political, social or other concern to the community.”
Brennan, 350 F.3d at 412. It seems likely that advocacy and
support for ideas, principles and projects a Borough Mayor
disfavored would involve a matter of public concern under this
standard.

                              34
        Accordingly, Hill’s First Amendment claim, insofar as
it is premised on Hill’s advocacy and support for ideas,
principles and projects Marino disfavored, should not have
been dismissed at this stage of the proceeding.

                  ii. Hill’s political association

        Hill also bases his First Amendment retaliation claim
on his support for “the policies and programs of the previous
mayor.” To make out a claim of discrimination based on
political association, a public employee must allege (1) that
the employee works for a public employer in a position that
does not require a political affiliation, (2) that the employee
maintained a political affiliation, and (3) that the employee's
political affiliation was a substantial or motivating factor in
the adverse employment decision.” Goodman v.
Pennsylvania Turnpike Com'n, 293 F.3d 655, 663-664 (3d
Cir. 2002).26 We need not spend time analyzing this issue
because Hill’s allegations in his complaint cannot support
such a claim.

                      4. Immunity Defenses

      The Mayor argues that he is entitled to various kinds of
immunities from §1983 liability. Though Hill barely
responded to these arguments in his brief, we have examined
them ourselves.




       26
          In our cases in this area, “political affiliation” usually
refers to party affiliation, but sometimes refers to affiliation with
a particular politician or candidate.

                                 35
        First, we hold that the absolute immunity which shields
local officials from liability for their legislative activities, see
Bogan v. Scott-Harris, 523 U.S. 44 (1998), does not shield
Marino because the conduct with which he is charged –
constructive discharge through harassment, defamation, and
accusations of illegality – was not “legislative activities.” See
Youngblood v. DeWeese, 352 F.3d 836, 839-840 (3d Cir.
2003) (discussing the scope of what constitutes “legislative
activities”).

        We further hold that Marino is not entitled to
petitioning immunity under the Noerr-Pennigton doctrine
because the conduct with which he is charged cannot be
construed as “petitioning activity” under any reasonable
interpretation of that term. See A.D. Bedell Wholesale Co.,
Inc. v. Philip Morris Inc., 263 F.3d 239, 252 (3d Cir. 2001)
(discussing various kinds of activity that qualifies as
“petitioning” for Noerr-Pennington purposes).

       Moreover, we hold that the doctrine of high official
immunity under Pennsylvania law does not shield Marino
from suit under §1983. That doctrine shields high officials
from state law claims, not constitutional claims.

       Finally, we turn to Marino’s asserted qualified
immunity defense. “[G]overnment officials performing
discretionary functions generally are granted a qualified
immunity and are ‘shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
should have known.’” Wilson v. Layne, 526 U.S. 603, 609
(1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818


                                36
(1982)). “A court evaluating a claim of qualified immunity
‘must first determine whether the plaintiff has alleged the
deprivation of an actual constitutional right at all, and if so,
proceed to determine whether that right was clearly
established at the time of the alleged violation.’” Id. (quoting
Conn v. Gabbert, 526 U.S. 286, 290 (1999)).

        We hold that Marino is not entitled to qualified
immunity on Hill’s “stigma-plus” due process claim to the
extent that claim requests a name-clearing hearing, because
the defense of qualified immunity is available only for
damages claims – not for claims requesting prospective
injunctive relief. Vance v. Barrett, 345 F.3d 1083, 1091 n.10
(9th Cir. 2003); Newman v. Burgin, 930 F.2d 955, 957 (1st
Cir. 1991) (Breyer, J.). See also Torisky v. Schweiker, 446
F.3d 438, 448 n.6 (3d Cir. 2006) (stating that if the District
Court determined on remand that plaintiffs, who sought
damages and an injunction, had abandoned their damages
claim, “the District Court will have no occasion to devote . . .
efforts to resolving the question of whether defendants . . . are
entitled to qualified immunity.”).27


       27
          As we noted in footnote 15, we do not here decide
whether a plaintiff who is successful on a “stigma-plus” due
process claim is entitled to damages in addition to or instead of
a name-clearing hearing. Assuming for the sake of argument
that he is so entitled, Marino would be protected by qualified
immunity on Hill’s “stigma-plus” claim to the extent that Hill
requests damages.
       While, as explained above, a violation of a constitutional
right may have occurred here, that right was not clearly
established in this Circuit before this opinion. Before today, the
law in this Circuit had been unclear on the question of whether

                               37
        We further hold that it is not possible at this juncture to
determine whether Marino is entitled to qualified immunity
on Hill’s First Amendment claim. As explained above, we
cannot determine on the basis of the complaint alone whether
Hill stated a claim for a constitutional violation; we similarly
cannot tell without factual development through discovery
whether the right at issue was clearly established. This
defense may well lend itself to resolution at summary
judgment.

                                B.

       We next address Hill’s claims against the Borough of



a public employee who was defamed in the process of being
discharged may state a “stigma-plus” due process claim, though
he lacked a property interest in continued employment. We had
referred to this lack of clarity on two occasions. Graham v. City
of Philadelphia, 402 F.3d 139, 142 n.2 (3d Cir. 2005); Ersek v.
Township of Springfield, 102 F.3d 79, 83 n.5 (3d Cir. 1997).
The lack of clarity was further evident from the fact that district
courts within this Circuit had decided the question in both ways.
Compare, e.g., Farber v. City of Paterson, 327 F.Supp.2d 401,
412 n.14 (D.N.J. 2004) (rev’d on other grounds) and Graham v.
Johnson, 249 F.Supp.2d 563, 565-568 (E.D.Pa. 2003) (both
answering the question “yes”) with Satterfield v. Borough of
Schylkill Haven, 12 F.Supp.2d 423, 433-434 (E.D.Pa. 1998) and
the district court opinion in this case (both answering the
question “no”). For this reason, the question was a question of
first impression in this Circuit. No matter what further fact
development reveals, then, the law was not clearly established
on the point in question, and, if damages were in question,
Marino would be entitled to qualified immunity.

                                38
Kutztown.

                       1. §1983 Claims

        Hill brings against the Borough all the §1983 claims he
brought against the Mayor. Because we will affirm the
dismissal of the claims against the Mayor alleging deprivation
of a property right without due process, violation of
substantive due process rights and violation of equal
protection rights, we dismiss those claims against the
Borough as well. “There cannot be an ‘award of damages
against a municipal corporation based on the actions of one of
its officers when in fact . . . the officer inflicted no
constitutional harm.’” Grazier ex rel. White v. City of
Philadelphia, 328 F.3d 120, 124 (3d Cir. 2003) (quoting City
of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).

       We will not, however, affirm the dismissal of Hill’s
claims against the Borough alleging deprivation of a liberty
interest in reputation without due process, and violation of the
First Amendment, because Hill has stated these claims against
Marino, and Marino was a final policy-maker capable of
binding the Borough with his conduct when it came to
constructively discharging Hill.

        A municipality may not be held liable under §1983 for
the constitutional torts of its employees by virtue of
respondeat superior. Rather, a municipality may be held
liable for the conduct of an individual employee or officer
only when that conduct implements an official policy or
practice. Monell v. New York City Dept. of Social Services,
436 U.S. 658, 690 (1978); McGreevy v. Stroup, 413 F.3d 359,


                              39
367 (3d Cir. 2005).

        An individual’s conduct implements official policy or
practice under several types of circumstances, including when
(1) the individual acted pursuant to a formal government
policy or a standard operating procedure long accepted within
the government entity, (2) the individual himself has final
policy-making authority such that his conduct represents
official policy, or (3) a final policy-maker renders the
individual’s conduct official for liability purposes by having
delegated to him authority to act or speak for the government,
or by ratifying the conduct or speech after it has occurred.
See generally Pembaur v. City of Cincinnati, 475 U.S. 469,
478-484 (1986); McGreevy, 413 F.3d at 367; Laverdure v.
County of Montgomery, 324 F.3d 123, 125-126 (3d Cir.
2003).

       Here, it is number (2) above that is most relevant.
Only if Mayor Marino was a final policy-maker was his
constructive discharge of Hill effectively official Borough
policy such that the Borough may be held liable for it. Hill
has alleged explicitly that Mayor Marino was a final
policymaker. See, e.g., ¶¶97, 101, 108, 115.

        In order to ascertain if an official has final policy-
making authority, and can thus bind the municipality by his
conduct, a court must determine (1) whether, as a matter of
state law, the official is responsible for making policy in the
particular area of municipal business in question, McMillian
v. Monroe County, 520 U.S. 781, 785 (1997) and City of St.
Louis v. Praprotnik, 485 U.S. 915, 924 (1988), and (2)
whether the official’s authority to make policy in that area is


                              40
final and unreviewable. Praprotnik, 485 U.S. at 926;
Pembaur, 475 U.S. at 483; McGreevy, 413 F.3d at 369;
Brennan, 350 F.3d at 428 (“if a municipal employee’s
decision is subject to review . . . it is not final and that
employee is therefore not a policymaker for purposes of
imposing municipal liability under §1983”).

       Here, Hill alleges that Marino constructively
discharged him. As Hill points out, as a matter of state law,
no government employee or body is permitted to
constructively discharge an employee by making his working
environment intolerable. As we discussed, however, Hill has
alleged that the Mayor had the power to constructively
discharge him, though he (Marino) lacked the power as
Mayor to fire him outright. Moreover, Marino’s constructive
discharge of Hill was final in the sense that it was not
reviewable by any other person or any other body or agency in
the Borough. That is, there was no one “above” the Mayor
who had the power to curtail his conduct or prevent him from
harassing Hill to the point where Hill had no alternative but
to leave his position.28 In this sense, Marino was a final
policy-maker for the purpose of constructively discharging
Hill.

        The Borough concedes that as the highest elected
official, Mayor Marino may well be a final policymaker in
other areas of Borough business. However, it argues (and the
District Court held), that because only the Borough Council


       28
         Indeed, the Borough notes in its brief that the “Borough
Council has no more power to silence the mayor than it does to
silence a private citizen.” Brief at 26.

                                41
has the power to fire the Borough Manager, it is the Borough
Council (and not the Mayor) which is the final policy-maker
in the area of the Borough Manager’s employment. Marino
did not, however, fire Hill; rather, through Marino’s actions,
conduct and harassment, Marino constructively discharged
Hill. For the reasons discussed above, the Mayor had final
policy-making authority to do so.

        Hill has alleged that the municipality is bound by
Marino’s conduct. We agree. See Bartholomew v. Fischl,
782 F.2d 1148, 1153 (3d Cir. 1986) (holding that a mayor
who, like Marino, did not have the authority to fire a public
employee directly, but who, like Marino, effectively fired the
employee in an indirect way – by persuading city councils to
dissolve the agency he worked for – was “a government
official with policy-making powers” for whose wrongful
termination of the public employee the city was liable).

                       2. ADEA Claim

        Hill claims that Mayor Marino constructively
discharged him because of his age, and that this constitutes an
ADEA violation for which the Borough should be held
liable.29 The ADEA provides, in pertinent part,



       29
         Hill did not bring an ADEA claim against Mayor
Marino himself, nor could he have because the ADEA does not
provide for individual liability. See Horwitz v. Bd. of Educ. of
Avoca Sch. Dist. No. 37, 260 F.3d 602, 610 n.2 (7th Cir. 2001);
Medina v. Ramsey Steel Co., Inc., 238 F.3d 674 (5th Cir. 2001);
Smith v. Lomax, 45 F.3d 402, 403 n. 4 (11th Cir.1995) (all
holding that there is no individual liability under the ADEA).

                              42
       It shall be unlawful for an employer . . . to fail or
       refuse to hire or to discharge any individual or
       otherwise discriminate against any individual with
       respect to his compensation, terms, conditions, or
       privileges of employment because of such individual's
       age.

29 U.S.C. §623(a).

        Once again, the District Court dismissed Hill’s age
discrimination claim against the Borough on the ground that
Marino could not constructively discharge Hill because he
lacked the power to fire him, so the Borough could not be
held liable for such a discharge. The District Court also noted
that the Borough lacked the authority to control what Marino,
the “independently elected mayor,” did and said, and thus
could not be held responsible for his conduct, especially
where members of the Borough Council had supported Hill.

        We have already (in the context of Hill’s First
Amendment claims) explained why Marino could, in fact,
constructively discharge Hill. The Borough may be held
liable for the alleged discharge because a plaintiff may bring
an ADEA claim against a political subdivision of a state 30


See also Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173,
184 (3d Cir. 1997) (holding that Congress did not intend to hold
individual employees liable under Title VII, which is parallel to
the ADEA in many ways).
       30
          The ADEA includes in its definition of employer “a
State or political subdivision of a State.” 29 U.S.C. §630(b)(2).
The Supreme Court held in Kimel v. Florida Bd. of Regents, 528

                               43
based on the actions of its employee(s).31 It does not matter
that one entity within the Borough (the Council) may have
supported Hill; the Council’s alleged support of Hill does not
“counteract” nor cure the Mayor’s alleged harassment, with
the result of immunizing the Borough of Kutztown from



U.S. 62 (2000) that in the ADEA, Congress did not validly
abrogate the states’ sovereign immunity to suits by private
individuals. It does not follow, however, that sovereign
immunity protects political subdivisions of states from suit by
individuals. See, e.g., Lake Country Estates, Inc. v. Tahoe Reg’l
Planning Agency, 440 U.S. 391, 401 (1979) (“the Court has
consistently refused to construe the [Eleventh] Amendment to
afford protection to political subdivisions such as counties and
municipalities, even though such entities exercise a ‘slice of
state power.’”).
       31
          See, e.g., Fasold v. Justice, 409 F.3d 178 (3d Cir. 2005)
(terminated former detective in the office of the District
Attorney in Montgomery County, Pennsylvania brought ADEA
claims against several defendants including Montgomery
County, Pennsylvania); Potence v. Hazleton Area Sch. Dist., 357
F.3d 366 (3d Cir. 2004) (unsuccessful applicant for
plumbing/HVAC instructor brought ADEA claim against school
district); Narin v. Lower Merion Sch. Dist., 206 F.3d 323 (3d
Cir. 2000) (unsuccessful applicant for teaching positions
brought ADEA claim against school district); Stanziale v.
Jargowsky, 200 F.3d 101 (3d Cir. 2000) (Sanitation Inspector
who drew a smaller salary than his younger colleagues brought
ADEA claim against several defendants including the County of
Monmouth and the Monmouth County Board of Health); Smith
v. Borough of Wilkinsburg, 147 F.3d 272 (3d Cir. 1998) (former
borough manager whose contract was not renewed brought
ADEA claim against defendant borough).

                                44
liability.

        To state a claim for age discrimination under the
ADEA, a plaintiff must allege that (1) he is over forty, (2) he
is qualified for the position in question, (3) he suffered from
an adverse employment decision,32 and (4) his replacement
was sufficiently younger to permit a reasonable inference of
age discrimination. Potence v. Hazleton Area Sch. Dist., 357
F.3d 366, 370 (3d Cir. 2004).

       Hill’s allegations satisfy these requirements. See ¶127.
 Among other things, Hill was over forty when he was
discharged, and his replacement was 27. Hill has therefore
stated an ADEA claim that survives dismissal under 12(b)(6).
The same legal standard applies to a claim under the PHRA as
applies to an ADEA claim. Kautz v. Met-Pro Corp., 412 F.3d
463, 466 n.1 (3d Cir. 2005).

                              IV.

       We will affirm the District Court’s dismissal of Hill’s
§1983 procedural due process (property interest) claims
against Marino and the Borough, his §1983 substantive due
process claims against Marino and the Borough, his §1983
equal protection claims against Marino and the Borough, and
his §1983 First Amendment retaliation claims against Marino
and the Borough insofar as they are premised on Hill’s report
to the Borough Council, and Hill’s support for “the policies


        32
          Constructive discharge is an adverse employment
decision that may form the basis of an ADEA claim. Duffy v.
Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001).

                               45
and programs of the previous mayor.” We will also affirm
the dismissal of Hill’s §1983 “stigma-plus” due process claim
against Marino to the extent that claim seeks damages
because Marino is entitled to qualified immunity on that
claim.

        We will reverse the District Court’s dismissal of Hill’s
§1983 “stigma-plus” due process claim against Marino to the
extent that claim seeks a name clearing hearing, Hill’s §1983
“stigma-plus” due process claim against the Borough, and
Hill’s §1983 First Amendment retaliation claims against
Marino and the Borough, insofar as they are premised on
Hill’s support for ideas, principles and projects that Marino
disfavored, including the telecommunications project. We
will also reverse the District Court’s dismissal of Hill’s
ADEA and PHRA claims against the Borough.

       We will remand for further proceedings consistent with
this opinion. On remand, the District Court will have to
address the state claims over which it declined to exercise
jurisdiction.




                              46
