                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 09-4618
                                   _____________

                                STEVEN W. BURNE,
                                           Appellant

                                           v.

                             FRANK SIDEROWICZ;
                             DENNIS GIORDANO;
                         BRIAN BOGNATZ; ERIN SODIN;
                                ROBERT COX
                               _______________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                          (Civil Action No. 3:07-cv-00588)
                    District Judge: Honorable James M. Munley
                                  _______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   July 12, 2011

            Before: SLOVITER, FUENTES, and GARTH, Circuit Judges

                             (Opinion filed July, 21, 2011)

                                  _______________

                             OPINION OF THE COURT
                                 _______________

GARTH, Circuit Judge.

      Plaintiff-appellant Steven W. Burne appeals from the District Court‟s order

granting summary judgment to defendants on Burne‟s § 1983 action. Burne alleges that
                                           1
the defendants pretextually terminated his employment in retaliation for Burne‟s offer to

give a statement concerning his supervisor‟s involvement in a workplace dispute.

Because we agree with the District Court that the First Amendment does not protect such

speech by a public employee, we will affirm.

                                             I.

       Burne began his employment with the Pennsylvania Department of Transportation

(PennDOT) in November 2001 as a seasonal equipment operator and snowplow driver.

In January 2005, while working at a PennDOT depot in Lackwanna County, Burne

allegedly witnessed his supervisor, appellee Frank Siderowicz, physically attack another

employee, John Fife. Burne then allegedly told Robert Cox, the Lackawanna County

Assistant Manager for PennDOT, that he would give a statement reporting the altercation.

Siderowicz denies that any such altercation transpired, and Cox does not recall Burne

approaching him or whether the dispute between Siderowicz and Fife turned physical.

No one filed a formal complaint reporting the incident.

       On February 10, 2005, Brian Bognatz, a Carbondale, Pennsylvania police officer,

observed Burne driving a PennDOT snowplow through a red light. Bognatz stopped

Burne and recorded Burne‟s license and registration, but did not issue a citation at that

time. Burne maintains that the light was yellow and that Bognatz left Burne with the

impression that no citation would be issued. However, the following day, Bognatz called

Dennis Giordano, the Lackawanna County Manager for PennDOT, to apprise him of

Burne‟s traffic violation. On the advice of Erin Sodin-Mazikewich, a human resources

coordinator in PennDOT‟s district office, Giordano tried to obtain an incident report from

                                             2
Bognatz. Since Giordano could not reach Bognatz, he called the Mayor of Carbondale,

who in turn communicated with Bognatz. Bognatz then faxed PennDOT a copy of the

citation, which was undated. According to Bognatz, officers have up to thirty days to

issue citations for summary offenses, and traffic tickets are “very, very often filed after

the incident.” (App. 129.)

       Giordano scheduled a pre-disciplinary hearing for March 11, 2005, to discuss the

traffic citation with Burne and to allow Burne to respond to the allegations. Following

the hearing, Burne was first suspended, then terminated effective March 11, 2005. In a

termination letter dated March 28, 2005, PennDOT specified that Burne‟s traffic

violation was the reason for his termination.

       On April 4, 2005, a magistrate dismissed Burne‟s traffic citation because Bognatz

did not appear at the citation hearing.

       On March 20, 2008, Burne filed an amended complaint against Siderowicz,

Giordano, Sodin-Mazikewich, Cox (hereafter “PennDOT Defendants”), and Bognatz in

the District Court for the Middle District of Pennsylvania. Burne‟s complaint, brought

under 42 U.S.C. § 1983, alleged (1) violations of his First Amendment right to speak on a

matters of public importance without fear of retaliation, (2) violations of his Fourth

Amendment rights to be free of unlawful seizures and of malicious prosecution, and (3)

conspiracy to violate those rights. The gravamen of Burne‟s complaint was that the stated

basis for his termination -- the traffic citation -- had been manufactured as a pretext to fire

him for offering a statement about Siderowicz‟s alleged misconduct. Burne primarily

sought $40,000 in special damages on account of lost wages.

                                                3
         Bognatz moved for summary judgment on April 20, 2009, and the PennDOT

Defendants moved for summary judgment on April 27, 2009.

         The District Court granted both motions for summary judgment. It held that (1)

Burne‟s expression of willingness to give a statement about the Siderowicz-Fife

altercation was not protected speech related to a public concern; (2) even if such speech

were protected, it did not play a substantial role in Burne‟s termination; and (3) Burne

would have been terminated in any event. The District Court also determined that

stopping Burne for what Bognatz perceived as Burne running a red light was objectively

reasonable, and that Burne could not satisfy several elements of a malicious prosecution

claim. Finally, the District Court concluded that in the absence of First Amendment or

Fourth Amendment violations, Burne could not establish a claim of conspiracy under §

1983.1

                                             II.

                                             A.

         The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, & 1367.

We have jurisdiction pursuant to 28 U.S.C. § 1291.

         We exercise plenary review over the District Court‟s grant of summary judgment,

viewing “the underlying facts and all reasonable inferences therefrom in the light most

favorable to the party opposing the motion.” McGreevy v. Stroup, 413 F.3d 359, 363 (3d

Cir. 2005) (citation omitted). “Under Federal Rule of Civil Procedure 56, summary

         1
         On appeal, Burne does not contest the portion of the District Court‟s holding
relating to his Fourth Amendment claims.

                                             4
judgment is proper „if the movant shows that there is no material dispute as to any

material fact and the movant is entitled to judgment as a matter of law.‟” Lamont v. New

Jersey, 637 F.3d 177, 181 (3d Cir. 2011).

                                              B.

       To establish a First Amendment retaliation claim, a public employee must show

that (1) “the activity in question is protected by the First Amendment” and (2) “the

protected activity was a substantial factor in the alleged retaliatory action.” Hill v.

Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006) (citation omitted). The

employer can rebut those showings by demonstrating that it “would have taken the

adverse action in the absence of [the employee‟s] protected conduct.” Id. at 241 n.23

(citation omitted).

       The threshold issue -- whether the speech concerned is protected under the First

Amendment -- “is solely a question of law.” Miller v. Clinton Cnty., 544 F.3d 542, 548

(3d Cir. 2008). Speech is protected if (1) “the employee spoke as a citizen on a matter of

public concern” and (2) the government employer had no “adequate justification for

treating the employee differently from any other member of the general public” as a

result of the statement. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citations

omitted). “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.” Connick v. Myers, 461 U.S. 138, 147-48 (1983).

                                            C.



                                              5
       Burne presents two main arguments in support of his position that his speech

touched on an issue of public concern.

       First, Burne argues that his statements to Cox implicated an issue of public

concern because Burne “had no personal interest in reporting the workplace assault.” But

the mere fact that Burne‟s speech was not impelled by self-interest does not elevate it to a

level of public significance. See Azzaro v. Cnty. of Allegheny, 110 F.3d 968, 978 (3d

Cir. 1997) (“[T]he speaker‟s motive, while often a relevant part of the context of the

speech, is not dispositive in determining whether a particular statement relates to a

matter of public concern.”) “Rather, the issue is whether it is important to the process of

self-governance that communications on this topic, in this form and in this context, take

place.” Id. at 977. Burne‟s proffer of a statement to a superior regarding a private

dispute in the workplace lacked the requisite connection to broad social and political

issues, transparency in government affairs, or the effectiveness of government service

that is normally characteristic of an issue of public concern. See Borden v. Sch. Dist. of

Twp. of E. Brunswick, 523 F.3d 153, 170 (3d Cir. 2008).

       Second, Burne attempts to liken his situation to that of the employee in Pro v.

Donatucci, 81 F.3d 1283 (3d Cir. 1996), who claimed retaliation after volunteering to

testify against her employer at his divorce proceeding. We recognized in Pro that the

speech was protected “because of its form and context -- that is, potential sworn

testimony before an adjudicatory body.” Id. at 1288 (citation and internal quotation

marks omitted); see also Green v. Phila. Hous. Auth., 105 F.3d 882, 887 (3d Cir. 1997)

(“In Pro, we held the context of a courtroom appearance raises speech to a level of public

                                             6
concern, regardless of its content.” (citations omitted)). The unique public interest

inherent in courtroom testimony, which we identified in Pro, does not pertain here, where

no adjudicative proceeding or internal investigation was initiated, no witness testimony

was solicited, and indeed, no formal complaint was ever filed.2

       The better analog to Burne‟s allegedly protected speech is the “speech” at issue in

Gorum v. Sessoms, 561 F.3d 179 (3d Cir. 2009), in which a professor claimed he had

been retaliated against for, among other things, assisting a student in disciplinary

proceedings. Burne‟s professed willingness to provide a statement regarding a workplace

altercation bears the same hallmarks of the professor‟s speech in Gorum that led us to

conclude that it did not implicate public concerns: Burne‟s speech was “related to the

personal grievance” of another -- namely, Fife; “[t]here is no evidence in the record that

[Burne] even made a public statement,” since he merely indicated that he would make a

statement; and “[t]here is no proof that he thought any public policy issues were at stake.”

Id. at 187.

       In short, Burne‟s speech concerned a private dispute between his supervisor and a

co-worker, which does not enjoy First Amendment protection. See Connick, 461 U.S. at

149 (“While as a matter of good judgment, public officials should be receptive to

constructive criticism offered by their employees, the First Amendment does not require


       2
         We also reject Burne‟s argument that defendant-appellees‟ actions implicated the
Petition Clause of the First Amendment, since he fails to identify a protected petitioning
activity -- e.g., initiating a lawsuit or seeking redress for a grievance -- for which he may
have been penalized. See Foraker v. Chaffinch, 501 F.3d 231, 237-38 (3d Cir. 2007),
abrogated on other grounds by Borough of Durea, Pa. v. Guarnieri, 131 S.Ct. 2488
(2011).
                                              7
a public office to be run as a roundtable for employee complaints over internal office

affairs.”) As a result, we cannot say that Burne‟s speech “„touch[ed] on broad social or

policy issues‟ or „implicate[d] the discharge of public responsibilities by an important

government office, agency, or institution,‟” which it must, in order to be deemed

protected speech. Gorum, 561 F.3d at 187 (quoting Sanguigni v. Pittsburgh Bd. of Pub.

Educ., 968 F.2d 393, 397 (3d Cir. 1992)).

       Having determined at the threshold that Burne‟s speech is not protected by the

First Amendment as a matter of law, we need not address the other aspects of the First

Amendment retaliation inquiry, i.e., whether the PennDOT Defendants had sufficient

justification to treat Burne differently and what role Burne‟s speech played, if any, in his

termination.

       Finally, inasmuch as Burne has not demonstrated a violation of his First

Amendment rights, he perforce cannot sustain his claim of a conspiracy to deprive him of

those rights. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970).

                                             III.

       For the foregoing reasons, we will affirm the District Court‟s November 10, 2009,

grant of summary judgment in favor of the PennDOT Defendants and Bognatz.




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