                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 15-3951
                                      _____________

                                 KALILAH BRANTLEY,
                                            Appellant

                                             v.

        KEYE A. WYSOCKI, Individually and in his capacity as Corporal for the
      Pennsylvania State Police; KEITH HAGAN, Individually and in his capacity
     as trooper for the Pennsylvania State Police; RENEE BURROWS, Individually
     and in her official capacity as shift manager for American Airlines Group, Inc.;
         AMERICAN AIRLINES GROUP INC, S/I/I/T US Airways Group, Inc.;
                                     JOHN DOES 1-10
                                      ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           (E.D. Pa. No. 2-14-cv-04185)
                    District Judge: Honorable Mark A. Kearney
                                 ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 September 16, 2016
                                  ______________

      Before: CHAGARES, GREENAWAY, JR. and RESTREPO, Circuit Judges.

                                 (Filed: October 26, 2016)
                                     ______________

                                        OPINION*
                                     ______________


       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
RESTREPO, Circuit Judge.

       Appellant Kalilah Brantley filed this civil rights action under 42 U.S.C. § 1983.

Brantley alleges two claims against Appellee Pennsylvania State Police Corporal Keye

Wysocki1—malicious prosecution in violation of the Fourth Amendment and retaliatory

prosecution in violation of her First Amendment right to free speech. The District Court

dismissed the malicious prosecution claim on Rule 12(b)(6) grounds and granted

summary judgment for Wysocki on the First Amendment claim on qualified immunity

grounds.2 We will affirm.

                                             I

       Brantley worked for a private employer at the Philadelphia International Airport,

where she was supervised by Rene Burrows. Around Christmas 2010, the two had a

dispute over mandatory overtime. Brantley alleged that Burrows was violating union

overtime policy. Burrows denied this. Burrows, furthermore, believed that Brantley had

committed a workplace infraction by clocking out of a mandatory overtime shift without

authorization.

       On December 30, 2010, Brantley, Burrows, a union representative and another

employee held a heated “coaching” meeting in an airport conference room to discuss

Brantley’s alleged infraction. App. 548. Brantley’s cell phone was on the table during

       1
         Brantley previously raised claims against other defendants dismissed by the
District Court. Her appeal is limited to her claims against Wysocki.
       2
         Brantley also alleged a malicious prosecution claim under Pennsylvania state
law, but concedes that this claim is barred by Pennsylvania’s sovereign immunity statute,
1 Pa. Cons. Stat. § 2310. See also 42 Pa. Cons. Stat. § 8522 (exceptions to sovereign
immunity inapplicable).
                                             2
the meeting. Midway through the meeting, Burrows became suspicious that Brantley was

recording the meeting on her cell phone. Burrows confronted Brantley, who admitted

that she was recording.

       Sometime after the December 30, 2010 meeting, Brantley posted a public letter in

an employee break room criticizing Burrows. Burrows was admittedly “disgusted” by

the letter. App. 246.

       Burrows spoke with her husband, a police officer in New Jersey, and with a

corporate security officer. Based upon these conversations, she concluded that Brantley

had violated the Pennsylvania Wiretapping and Electronic Surveillance Control Act

(“Wiretap Act”), 18 Pa. Cons. Stat. § 5703. Burrows enlisted the aid of Appellee

Wysocki, who often worked at the airport. Burrows told Wysocki that Brantley had

illegally recorded the “coaching” meeting.

       On January 18, 2011, Wysocki accompanied Burrows to a Philadelphia Police

Department station inside the airport, where Burrows filed a complaint against Brantley.

The police, however, brushed off Burrows by telling her to obtain a copy of the recording

herself. Burrows told Wysocki, who thought the officer who took her complaint was

being “lazy.” App. 307, 309. Wysocki began to investigate Burrows’ complaint himself,

with permission from his supervisor and a deputy district attorney.

       On February 1, 2011, Wysocki interviewed Burrows at the airport. Burrows told

Wysocki that Brantley recorded the “coaching” meeting without her knowledge. She told

him that she ended the meeting as soon as she learned that Brantley was recording it. She

also told him that she reported “the possible recording” to a supervisor. App. 534.

                                             3
       On February 8, 2011, Wysocki confronted Brantley at work and demanded her cell

phone. Wysocki admittedly told Brantley that if she did not give him the phone, he

would “physically take it from [her] hand.” App. 328. Brantley complied. Wysocki

escorted her into a break room where he copied the recording onto his own phone.

Brantley admitted to Wysocki that she had recorded Burrows without her knowledge or

consent, but maintained that this was not illegal or against company policy.

       Wysocki personally signed a criminal complaint, charging Brantley with a

Wiretap Act violation. Brantley received a summons by mail and was prosecuted in state

court. She filed a suppression motion. The trial court granted the motion and the

Superior Court affirmed on interlocutory appeal. Commonwealth v. Brantley, No. 376

EDA 2012, 2013 WL 11288850 (Pa. Super. Ct. Jan. 11, 2013). The Commonwealth

nolle prossed the case.

       This civil rights action followed. The District Court dismissed Brantley’s Fourth

Amendment malicious prosecution claim under Federal Rule of Civil Procedure 12(b)(6).

The District Court granted summary judgment for Wysocki on the First Amendment

retaliatory prosecution claim on qualified immunity grounds.

                                             II

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have

jurisdiction under 28 U.S.C. § 1291.

       We exercise plenary review over the grant of a motion to dismiss under Rule

12(b)(6). Kaymark v. Bank of Am., 783 F.3d 168, 174 (3d Cir. 2015). We accept as true

all well-pled factual allegations and construe all inferences in the light most favorable to

                                              4
plaintiff. Id. We also exercise plenary review over a grant of a motion for summary

judgment. Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir. 2007). We will affirm if “there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). We may affirm on any grounds supported by the

record. Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en banc).

                                            III

                                             A

       The District Court dismissed Brantley’s Fourth Amendment malicious prosecution

claim under Rule 12(b)(6). Brantley’s notice of appeal does not specify that she is

appealing this order. However, she argues the merits of her Fourth Amendment

malicious prosecution claim in her brief. Therefore, we must first address the scope of

our jurisdiction.

       Rule 3(c) of the Federal Rules of Appellate Procedure requires that a notice of

appeal “designate the judgment, order, or part thereof being appealed.” Fed. R. App. P.

3(c)(1)(B). Nevertheless, we construe notices of appeal liberally. Polonski v. Trump Taj

Mahal Assocs., 137 F.3d 139, 144 (3d Cir. 1998). We have repeatedly recognized an

exception to Rule 3 that allows us to “review earlier non-final orders not specified in the

notice of appeal where (1) there is a connection between the specified and unspecified

order; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing

party is not prejudiced and has a full opportunity to brief the issues.” Gen. Motors Corp.

v. New A.C. Chevrolet, Inc., 263 F.3d 296, 311 n.3 (3d Cir. 2001); see also Polonski, 137



                                             5
F.3d at 144. As these requirements are met here, we will review the District Court’s

order dismissing Brantley’s Fourth Amendment malicious prosecution claim.

       A Fourth Amendment malicious prosecution claim requires a plaintiff to plead

these elements:

              (1) the defendant[] initiated a criminal proceeding;
              (2) the criminal proceeding ended in plaintiff’s favor;
              (3) the proceeding was initiated without probable cause;
              (4) the defendant[] acted maliciously or for a purpose other
              than bringing the plaintiff to justice; and
              (5) the plaintiff suffered deprivation of liberty consistent with
              the concept of seizure as a consequence of a legal proceeding.

Kossler, 564 F.3d at 186 (quotation marks omitted) (quoting Estate of Smith v. Marasco,

318 F.3d 497, 521 (3d Cir. 2003)). The District Court properly dismissed Brantley’s

Fourth Amendment malicious prosecution claim because she did not allege the fifth

element, a deprivation of liberty.

       “[P]retrial custody and some onerous types of pretrial, non-custodial restrictions

constitute a Fourth Amendment seizure” for a malicious prosecution claim. Black v.

Montgomery Cty., No. 15-3399, 2016 WL 4525230, at *6 (3d Cir. Aug. 30, 2016)

(quoting DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005)). To

determine whether there was a deprivation of liberty, we may consider, inter alia,

whether a plaintiff was incarcerated, was detained in the police station, posted bond, was

required to contact pretrial services, was prohibited from travelling or was required to

travel to attend court. Id. at *6-7.

       Brantley’s Second Amended Complaint alleges none of these facts. Rather, she

alleges only that she “received a police summons by mail” and that the trial court held a

                                             6
two-day suppression hearing. App. 50. These facts alone do not amount to a deprivation

of liberty. DiBella, 407 F.3d at 603. Thus, the District Court properly dismissed the

Fourth Amendment malicious prosecution claim.

                                              B

       Brantley also raises a claim of retaliatory prosecution in violation of her First

Amendment right to free speech. The District Court granted summary judgment for

Wysocki on qualified immunity grounds. The District Court found that there was a

constitutional violation, but that the right was not clearly established. We will affirm on

alternative grounds, finding no constitutional violation and not reaching the question

whether the right was clearly established.

       “Qualified immunity shields federal and state officials from money damages

unless a plaintiff pleads facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of the

challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted).

“A Government official’s conduct violates clearly established law when, at the time of

the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every

‘reasonable official would have understood that what he is doing violates that right.’” Id.

at 741 (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)).




                                               7
       As is within our discretion, we address the first prong of the qualified immunity

analysis, whether there was a constitutional violation. Pearson v. Callahan, 555 U.S.

223, 242 (2009). This is the most “fair and efficient disposition” of this case. Id.3

       “[A]s a general matter the First Amendment prohibits government officials from

subjecting an individual to retaliatory actions, including criminal prosecutions, for

speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006) (citation omitted). To

establish a First Amendment retaliation claim, a plaintiff “‘must prove (1) that [s]he

engaged in constitutionally-protected activity; (2) that the government responded with

retaliation; and (3) that the protected activity caused the retaliation.’” George v. Rehiel,

738 F.3d 562, 585 (3d Cir. 2013) (quoting Eichenlaub v. Twp. of Indiana, 385 F.3d 274,

282 (3d Cir. 2004)). Wysocki argues that summary judgment was proper because

Brantley failed to prove causation.

       Causation in this context is defined as “but-for causation, without which the

adverse action would not have been taken.” Hartman, 547 U.S. at 260. Ordinarily,

“upon a prima facie showing of retaliatory harm, the burden shifts to the defendant

official to demonstrate that even without the impetus to retaliate he would have taken the

action complained of (such as firing the employee).” Id. However, under Hartman,

where the plaintiff alleges that the particular act of retaliation is criminal prosecution,

causation requires a special method of proof—the plaintiff must plead and prove the

absence of probable cause. Id. at 265-66. This requirement applies whether the

       3
        For reasons of constitutional avoidance, we will often begin by determining
whether a right was clearly established, although beginning with the constitutional
question was more efficient here. Camreta v. Greene, 563 U.S. 692, 705-07 (2011).
                                               8
defendant induced another person to file charges, as in Hartman, or initiated the

prosecution himself, as Wysocki did. See Miller v. Mitchell, 598 F.3d 139, 154 (3d Cir.

2010).

         In its analysis, the District Court did not address the Hartman requirement that

Brantley prove the absence of probable cause. Rather, the District Court concluded that a

jury could find causation based upon the “temporal proximity” between Brantley’s

“protests” regarding union policy and her criminal prosecution. App. 11. We exercise

our discretion to apply Hartman for the first time on appeal. Singleton v. Wulff, 428 U.S.

106, 121 (1976). We turn then to the ultimate issue—whether Brantley has proven for

summary judgment purposes that Wysocki arrested her without probable cause.

         “[P]robable 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. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995). In applying “this practical

and common-sensical standard, we have consistently looked to the totality of the

circumstances.” Florida v. Harris, 133 S. Ct. 1050, 1055 (2013). We “reject[] rigid

rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-

considered approach.” Id. (citing Illinois v. Gates, 462 U.S. 213 (1983)).

         The existence of probable case is ordinarily a factual issue. Halsey v. Pfeiffer, 750

F.3d 273, 300 (3d Cir. 2014). Summary judgment is not appropriate if there are factual

disputes “bearing on the issue or if ‘reasonable minds could differ’” as to whether there

was probable cause. Id. (citation omitted). Conversely, we may grant summary

                                               9
judgment if “no genuine issue of material fact exists as to whether” there was probable

cause. Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997).

       In Brantley’s case, the statute at issue is Section 5703 of the Wiretap Act, which

provides: “a person is guilty of a felony of the third degree if he: . . . intentionally

intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to

intercept any wire, electronic or oral communication . . . .” 18 Pa. Cons. Stat. § 5703(1).

An oral communication is “[a]ny oral communication uttered by a person possessing an

expectation that such communication is not subject to interception under circumstances

justifying such expectation. The term does not include any electronic communication.”

18 Pa. Cons. Stat. § 5702.

       Under Pennsylvania law, a Wiretap Act violation for interception of an oral

communication requires proof:

              (1) that [the claimant] engaged in a communication; (2) that
              [s]he possessed an expectation that the communication would
              not be intercepted; (3) that [her] expectation was justifiable
              under the circumstances; and (4) that the defendant attempted
              to, or successfully intercepted the communication, or
              encouraged another to do so.

Kelly v. Carlisle, 622 F.3d 248, 257 (3d Cir. 2010) (quoting Agnew v. Dupler, 717 A.2d

519, 522 (Pa. 1998)).

       We examine the expectation of non-interception “in accordance with the principles

surrounding the right of privacy.” Agnew, 717 A.2d at 523. We ask whether the claimant

had an expectation of privacy and “whether that expectation is one that society is

prepared to recognize as reasonable.” Id. The Pennsylvania Supreme Court has relied


                                               10
upon several facts “belying” a justifiable expectation of non-interception. Kelly, 622

F.3d at 258. These include that “‘oral interrogations of suspects by the police are

generally recorded’”; that a participant is taking notes; that third parties are present and

that others can overhear the conversation. Id. at 258 (quoting Commonwealth v. Henlen,

564 A.2d 905, 906 (Pa. 1989)); id. at 257 (citing Agnew, 717 A.2d at 524).

       In the instant case, there was probable cause to conclude that Brantley violated the

Wiretap Act. Burrows told Wysocki that Brantley recorded the “coaching” meeting

without her knowledge. She told him that she ended the meeting immediately after she

learned that Brantley was recording it.4 She also told him that she reported the recording

to a supervisor. There is no evidence that other “coaching” meetings at Brantley’s

private employer were ever recorded. Wysocki also conducted a separate interview of

Brantley, who admitted that she recorded the meeting without the knowledge or consent

of Burrows. In addition, Wysocki obtained a copy of the recording.

       In response, Brantley contends that there was no probable cause because Wysocki

lacked evidence that Burrows had a “justifiable” expectation of non-interception. Kelly,

622 F.3d at 257. She points out that other individuals were at the “coaching” meeting

and that her cell phone was visible on the table. Although Brantley does not argue this

point, we also acknowledge that Brantley was taking notes. These facts could describe

       4
         There is some evidence that the meeting continued after Brantley told Burrows
that she was recording. However, this factual dispute is not material to the probable
cause determination because the information was not available to Wysocki. See Harris,
133 S. Ct. at 1055. Wysocki interviewed Burrows, who told him that the meeting ended
immediately after Brantley admitted to recording it. Wysocki also interviewed Brantley,
who did not contradict this statement.

                                              11
many workplace meetings. Alone, they do not undermine our conclusion that there was

probable cause to arrest Brantley for recording the “coaching” meeting. We emphasize

that this arrest took place in 2010, amidst the recording technology of that day. We also

emphasize that “we are concerned here only with the question of probable cause, not

[Brantley]’s guilt or innocence.” Wright v. City of Phila., 409 F.3d 595, 603 (3d Cir.

2005). Thus, the District Court properly granted summary judgment for Wysocki on the

First Amendment retaliatory prosecution claim.

                                            IV

       For the foregoing reasons, the judgment of the District Court is affirmed.




                                            12
