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


1-6-2006

McKee v. Hart
Precedential or Non-Precedential: Precedential

Docket No. 04-1442




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                                   PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


               No. 04-1442


          DWIGHT L. MCKEE;
           ALLEN L. JONES

                     v.

            HENRY HART;
           WESLEY RISH;
         ALBERT MASLAND;
          JAMES SHEEHAN;
         DANIEL P. SATTELLE

                          Daniel P. Sattele,
                                Appellant


Appeal from the United States District Court
  for the Middle District of Pennsylvania
   (D.C. Civil Action No. 02-cv-01910)
 District Judge: Honorable Richard Caputo


          Argued March 10, 2005
         Before: SCIRICA, Chief Judge, ROTH and
                  AMBRO, Circuit Judges

               (Opinion filed: January 6, 2006)

Charles W. Rubendall, II, Esquire (Argued)
Donald M. Lewis, III, Esquire
Keefer, Wood, Allen & Rahal, LLP
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108-1963

       Counsel for Appellant

Donald A. Bailey, Esquire (Argued)
Bailey Stretton & Ostrowski
4311 North 6 th Street
Harrisburg, PA 17110

       Counsel for Appellee


                 OPINION OF THE COURT


AMBRO, Circuit Judge

      Daniel Sattele appeals the District Court’s denial of his
summary judgment motion seeking qualified immunity in a suit
brought by Allen Jones alleging that Sattele, among others, had


                               2
retaliated against him for exercising his First Amendment rights.
Because Jones did not allege that Sattele deprived him of a
constitutional right—and because even if he had, that right was
not clearly established at the time Sattele engaged in the alleged
conduct—we conclude that Sattele is entitled to qualified
immunity. We therefore reverse the decision of the District
Court and remand for further proceedings.

             I. Factual and Procedural History

       In May 2002, Jones was hired as a special investigator for
the Pennsylvania Office of Inspector General (“OIG”).1 The
OIG is responsible for investigating allegations of fraud, waste,
misconduct, and abuse in executive agencies of the
Commonwealth. At the time of the events at issue in this case,
Sattele was an Investigations Manager at OIG and was Jones’s
supervisor.

       In mid- to late-July 2002, Jones was given a lead role in
the investigation of Steve Fiorello, the chief pharmacist at
Harrisburg State Hospital. There was only one other person
assigned to the investigation.       A few weeks after the
investigation began, Jones told Sattele that he was concerned
about problems in the pharmaceutical industry that went beyond
the Fiorello investigation—specifically that he believed the


   1
   Jones had previously been employed by OIG. He left that
position in 1991.

                                3
industry was routinely bribing state officials. Jones informed
Sattele that he wanted to broaden the Fiorello investigation to
include the entire pharmaceutical industry. Thereafter, Jones
continued to inform Sattele about his concerns regarding the
industry.

       In response, Sattele told Jones to stay focused on the
Fiorello investigation and not to investigate corruption in the
pharmaceutical industry as a whole. Sattele subsequently
removed Jones from his lead role in the Fiorello investigation in
September 2002 2 because Jones had, in Sattele’s words, “lost
focus.” Sattele based this conclusion on the fact that Jones
continued to voice concerns about the entire pharmaceutical
industry even after Sattele had told him to concentrate only on
Fiorello.

        In October 2002, Dwight McKee, one of Jones’s
colleagues at OIG, filed a complaint against other OIG
employees, alleging that they had retaliated against him for
exercising his First Amendment rights. In November 2002, an
amended complaint was filed, joining Jones as a plaintiff and
Sattele as a defendant. Jones brought a cause of action under 42
U.S.C. § 1983, alleging that Sattele and the other defendants had
also retaliated against him for exercising his First Amendment
rights.    Jones claimed generally that he was retaliated


  2
   Jones was still assigned to that investigation even though his
role had changed.

                               4
against—through intimidation and harassment by his
supervisors—for complaining to his supervisors that public
corruption investigations were being obstructed and delayed for
reasons that were not legitimate.

        In particular, at his deposition Jones identified three
comments by Sattele that he perceived as harassment in
retaliation for his refusal to stop voicing his concerns about the
pharmaceutical industry.3 First, he testified that Sattele told him
that

              Mac [McKee] was torpedoed.
              Some of the things that he got
              maybe he deserved, but a lot of
              them he didn’t. He was torpedoed.
              You keep your mouth
              shut . . . . Mac has been torpedoed,
              keep your mouth shut or the same
              thing can happen to you.

In a similar vein, Jones recalled that Sattele told him, in early
October 2002, that if Jones could not adjust to the way OIG
operated, he would have to leave his employment there.


   3
    Jones also identified a fourth incident that he alleged was
harassment, involving Henry Hart, another defendant. Hart,
however, is not a party to this appeal, and as that incident is not
relevant to our decision, we do not discuss it here.

                                5
       Second, Jones testified that Sattele told him to “quit
being a salmon,” by which he meant that Jones should “quit
swimming against the current with the pharmaceutical case.”
(Sattele testified at his deposition that he told Jones to “go with
the flow” and not “swim against the current” because he was
concerned that Jones was not working with the lawyers in the
office and was not operating within a “team concept.”)

       Third, Jones related an incident that occurred in October
2002, after he had been removed as co-leader of the Fiorello
investigation. Jones stated that thereafter he was not allowed to
speak to anyone about the investigation without Sattele’s
permission. He nevertheless went to pick up documents from
Fiorello, the target of the investigation, while Sattele and
another of his supervisors were out of the office. Jones testified
that, when he got back, Sattele met him “first thing,” took him
into a room with another OIG colleague, “and demanded to
know why [he] went . . . without [Sattele’s] permission to pick
up papers.” Jones also stated that Sattele and his colleague
accused Jones of having had an interview with the Director of
the Department of Public Welfare, something Jones denied.

        All defendants moved for summary judgment in August
2003, and the District Court granted the motion with respect to
all defendants except Sattele in February 2004. As for Jones’s
claims against Sattele, the District Court determined, based on
the three comments identified by Jones, that (1) “with respect to
Mr. Sattele, Mr. Jones has presented evidence that could lead a

                                6
reasonable jury to conclude that his requests to investigate the
pharmaceutical industry were a substantial or motivating factor
in the retaliatory harassment or intimidation he may have
suffered” and (2) it could not decide whether Sattele had
qualified immunity absent a factual determination as to whether
Sattele’s conduct constituted retaliatory harassment. In its
decision, the District Court also determined that Jones was not
disciplined in connection with voicing his concerns about the
pharmaceutical industry and that “[a]t no time during his
employment has Mr. Jones’s job classification, pay, or benefits
been reduced or altered.” Sattele now appeals from the denial
of summary judgment on qualified immunity grounds.

           II. Jurisdiction & Standard of Review

       The District Court had federal question jurisdiction over
Jones’s 42 U.S.C. § 1983 claim pursuant to 28 U.S.C. § 1331.
We have appellate jurisdiction under 28 U.S.C. § 1291 and the
collateral order doctrine. See Doe v. Groody, 361 F.3d 232, 237
(3d Cir. 2004) (“[A] denial of qualified immunity that turns on
an issue of law—rather than a factual dispute—falls within the
collateral order doctrine that treats certain decisions as ‘final’
within the meaning of 28 U.S.C. § 1291.” (citing, inter alia,
Behrens v. Pelletier, 516 U.S. 299 (1996))); Forbes v. Twp. of
Lower Merion, 313 F.3d 144, 147 (3d Cir. 2002) (“When a
defendant moves for summary judgment based on qualified
immunity, the denial of the motion may be appealed
immediately under the collateral-order doctrine because ‘[t]he

                                7
entitlement is an immunity from suit rather than a mere defense
to liability[] and . . . is effectively lost if a case is erroneously
permitted to go to trial.’” (quoting Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)) (alterations, emphasis, and omission in
original)).4

        We exercise plenary review over the District Court’s
conclusions of law in its qualified immunity analysis. Doe, 361
F.3d at 237. In addition, “we may review whether the set of
facts identified by the district court is sufficient to establish a
violation of a clearly established constitutional right, but we may
not consider whether the district court correctly identified the set
of facts that the summary judgment record is sufficient to
prove.” Forbes, 313 F.3d at 147 (internal quotation marks
omitted).

      We note also that at this stage of the litigation we are
looking at the facts as presented by Jones, i.e., Satelle’s
statements were retaliatory, rather than the exercise by Satelle of
appropriate supervisory limits on Jones’s performance of his
assignment.




  4
   Sattele contends that there is no factual dispute preventing us
from exercising jurisdiction over this appeal, and Jones does not
dispute that position.

                                 8
                         III. Discussion

        Qualified immunity insulates government officials
performing discretionary functions from suit “insofar as ‘their
actions could reasonably have been thought consistent with the
rights they are alleged to have violated.” Id. at 148 (quoting
Anderson v. Creighton, 483 U.S. 635, 638 (1987)). To
determine whether an official has lost his or her qualified
immunity, we must first “decide ‘whether a constitutional right
would have been violated on the facts alleged . . . .’” Doe, 361
F.3d at 237 (quoting Saucier v. Katz, 533 U.S. 194, 200 (2001))
(omission in original). If the answer to that question is “yes,”
we must then “consider whether the right was ‘clearly
established.’” Id. at 238 (quoting Saucier, 533 U.S. at 201)). If
we also answer “yes” to the second question, we must conclude
that the official does not have qualified immunity.

        Sattele contends that he is entitled to qualified immunity
because (1) his three statements to Jones about his work on the
Fiorello investigation did not deprive Jones of his First
Amendment rights, and (2) even if Jones did allege a violation
of a constitutional right, that right was not clearly established at
the time Sattele made the comments. We address each argument
in turn.

       A.      Did Sattelle Violate a Constitutional Right of
               Jones?



                                 9
        “A public employee has a constitutional right to speak on
matters of public concern without fear of retaliation.” Brennan
v. Norton, 350 F.3d 399, 412 (3d Cir. 2003) (internal quotation
marks omitted). In light of this fundamental principle, we have
held that, in certain circumstances, a public employee may bring
a cause of action alleging that his or her First Amendment rights
were violated by retaliatory harassment for the employee’s
speech about a matter of public concern even if he or she cannot
prove that the alleged retaliation adversely affected the terms of
his or her employment. See Suppan v. Dadonna, 203 F.3d 228,
234–35 (3d Cir. 2000). In Suppan, we indicated that when the
“plaintiffs’ complaint allege[d] a campaign of retaliatory
harassment culminating in . . . retaliatory rankings [low ratings
on promotion lists],” then a “trier of fact could determine that a
violation of the First Amendment occurred at the time of the
rankings on the promotion lists and that some relief [was]
appropriate even if plaintiffs [could not] prove a causal
connection between the rankings and the failure to promote.”
Id. This holding is premised on the idea that being the victim of
petty harassments in the workplace as a result of speaking on
matters of public concern is in itself retaliation—even if the
employee cannot prove a change in the actual terms of his or her
employment—and thus could be actionable under the First
Amendment. Id. at 235.

        In this context, the key question in determining whether
a cognizable First Amendment claim has been stated is whether
“the alleged retaliatory conduct was sufficient to deter a person

                               10
of ordinary firmness from exercising his First Amendment
rights . . . .” Id. at 235 (internal quotation marks omitted). The
effect of the alleged conduct on the employee’s freedom of
speech “‘need not be great in order to be actionable,’” but it
must be more than de minimis. Id. (quoting Bart v. Telford, 677
F.2d 622, 625 (7th Cir. 1982) (Posner, J.)); see also Brennan,
350 F.3d at 422 n.17 (noting that “incidents of what might
otherwise be trivial ‘harassment’” may be actionable through
their “cumulative impact . . . even though the actions would be
de minimis if considered in isolation”). As stated earlier, the
District Court determined that Jones’s allegation that Sattele
retaliated against him for speaking out about the pharmaceutical
industry met the standards set out in Suppan.

       Sattele does not dispute the District Court’s conclusion
that Jones sufficiently alleged that he was speaking out on a
matter of public concern. Sattele does argue, however, that the
District Court’s conclusion (by pointing to the three statements
Sattele made to Jones, the latter alleged a retaliatory harassment
claim under the First Amendment) was incorrect. In particular,
Sattele contends that his three allegedly retaliatory comments
were trivial and insufficient to deter a person of ordinary
firmness from exercising his First Amendment rights. We
agree.

       Despite our holding in Suppan that a plaintiff’s allegation
of a “campaign of retaliatory harassment” by a public employer
as a result of the plaintiff’s speech created a cognizable First

                               11
Amendment claim even without an alleged causal connection to
a change in the plaintiff’s terms of employment, not every
critical comment—or series of comments—made by an
employer to an employee provides a basis for a colorable
allegation that the employee has been deprived of his or her
constitutional rights. See Suarez Corp. Indus. v. McGraw, 202
F.3d 676, 685 (4th Cir. 2000) (stating that “not every reaction
made in response to an individual’s exercise of his First
Amendment right to free speech is actionable retaliation”); Bart,
677 F.2d at 625 (holding that plaintiff had alleged an actionable
First Amendment claim when she claimed that “an entire
campaign of harassment[,] which though trivial in detail may
have been substantial in gross,” had been mounted against her,
but cautioning that “[i]t would trivialize the First Amendment to
hold that harassment for exercising the right of free speech was
always actionable no matter how unlikely to deter a person of
ordinary firmness from that exercise”). We have noted that
“‘courts have declined to find that an employer’s actions have
adversely affected an employee’s exercise of his First
Amendment rights where the employer’s alleged retaliatory acts
were criticism, false accusations, or verbal reprimands.’”
Brennan, 350 F.3d at 419 (quoting Suarez, 202 F.3d at 686)
(holding that allegations that a supervisor stopped using the
plaintiff’s job title and did not capitalize the plaintiff’s name as
a result of plaintiff’s speech, even if true, did not rise to the level
of a constitutional violation because they were de minimis). The
comments made by Sattele fall into this category.



                                  12
        Sattele’s statements to Jones in the fall of 2002 were all
aimed at getting Jones to focus on the investigation to which he
was assigned —looking into the activities of a particular person
in a particular state agency—instead of focusing on Jones’s own
wide-ranging concerns about the pharmaceutical industry as a
whole, something that OIG was not investigating. There is no
question Sattele’s statements were critical of Jones’s job
performance, and they may be construed as reprimands for
Jones’s continued expressions of concern about potential
corruption in the pharmaceutical industry. However, even
looking at the record in the light most favorable to Jones (as we
must at this stage in the proceedings), we cannot conclude that
Sattele’s comments, taken together, would have deterred a
person of ordinary firmness from exercising his First
Amendment rights.

        In Suppan, the plaintiffs allegedly were subjected to
repeated chastisements and threats from their superiors over a
period of more than a year based on their membership in a union
negotiating team, and they alleged that they were given low
ratings on their promotion eligibility evaluations in retaliation
for those activities. 203 F.3d at 230–31. By contrast, Jones was
admonished a few times for straying from the scope of the task
he was assigned. The District Court explicitly found that,
despite Jones’s changed role in the Fiorello investigation, he
suffered no alteration in his employment benefits, pay, or job
classification as a result of speaking out about potential
corruption in the pharmaceutical industry. Based on the set of

                               13
facts identified by the District Court, Jones’s allegations about
Sattele’s conduct simply do not rise to the level of a retaliatory
harassment claim under the First Amendment.

       Because Jones has not alleged the deprivation of a
constitutional right, Sattele is entitled to qualified immunity.
For the sake of completeness however, we now turn to the
second prong of the qualified immunity analysis and determine
whether—assuming that Jones had sufficiently alleged the
violation of a constitutional right—that right was clearly
established at the time of Sattele’s alleged conduct.

       B.     Assuming Sattele Violated a Constitutional Right
              of Jones, Was that Right Clearly Established at
              the Time of the Alleged Conduct?

        “‘[C]learly established rights’ are those with contours
sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” McLaughlin v.
Watson, 271 F.3d 566, 571 (3d Cir. 2001). Put another way,
“there must be sufficient precedent at the time of the action,
factually similar to the plaintiff’s allegations, to put [the]
defendant on notice that his or her conduct is constitutionally
prohibited.” Id. at 572. The Supreme Court has recently
reiterated this point, stating that “[i]t is important to emphasize
that this [clearly established] inquiry ‘must be undertaken in
light of the specific context of the case, not as a broad general
proposition.’” Brosseau v. Haugen, 543 U.S. 194, 125 S. Ct.

                                14
596, 599 (2004) (per curiam) (quoting Saucier, 533 U.S. at 201)
(emphasis added).

        Before Sattele allegedly engaged in the conduct at issue
in this case, we held, as discussed at Section III(A), supra, that
a public employee states a First Amendment claim by alleging
that his or her employer engaged in a “campaign of retaliatory
harassment” in response to the employee’s speech on a matter of
public concern, even if the employee could not prove a causal
connection between the retaliation and an adverse employment
action. Suppan, 203 F.3d at 234–35. We then reiterated, in
Baldassare v. New Jersey, 250 F.3d 188 (3d Cir. 2001), that “[a]
public employee has a constitutional right to speak on matters of
public concern without fear of retaliation.” Id. at 194 (citing,
inter alia, Rankin v. McPherson, 483 U.S. 378, 383–84 (1987)).
Jones contends that Suppan and Baldassare, taken together,
were sufficient precedent to put Sattele on notice that his
conduct—making harassing comments to Jones arising out of
Jones’s voicing of concerns about corruption in the
pharmaceutical industry—was constitutionally prohibited.

       In Suppan, however, we gave little guidance as to what
the threshold of actionability is in retaliatory harassment cases.
Instead, we merely held that such a claim existed. Suppan, 203
F.3d at 235. Moreover, the alleged conduct in Suppan spanned
more than a year and involved the supposed lowering of ratings
on employees’ promotion evaluations and the admonishment of
employees because of their union activities and support for a

                               15
particular mayoral candidate. Id. at 230–31. Based only on our
acknowledgment of a retaliatory harassment cause of action in
Suppan and the facts of that case, a reasonable official in
Sattele’s position would not have been aware that making a few
comments over the course of a few months (the gist of which
was asking an employee to focus on his job) might have run
afoul of the First Amendment.

        Baldassare also does not further Jones’s argument that
his First Amendment right to be free from retaliatory harassment
was clearly established at the time of Sattele’s alleged conduct.
That case involved a straightforward retaliation claim brought
under the First Amendment in which the plaintiff alleged a
direct causal connection between his speech on a matter of
public concern and his demotion, see Baldassare, 250 F.3d at
194 (plaintiff claimed he was demoted because of his statements
regarding his investigation and report about conduct of his co-
workers), not that he was subject to a campaign of retaliatory
harassment such as the one involved in Suppan and alleged by
Jones in this case. Thus, Baldassare would not have helped
Sattele understand that his conduct might be constitutionally
prohibited.5


  5
    Moreover, we note that even if Baldassare were relevant to
determining whether Jones’s right to be free from retaliatory
harassment was clearly established at the time of Sattele’s
alleged conduct, that case would not necessarily put a reasonable
official in Sattele’s position on notice that making comments

                               16
such as Sattele’s would violate the First Amendment. Under the
traditional retaliation analysis articulated in Baldassare, the
second inquiry, after the plaintiff has established that he or she
was engaging in activity protected by the First Amendment, is
whether the plaintiff’s “interest in the speech outweighs the
state’s countervailing interest as an employer in promoting the
efficiency of the public services it provides through its
employees.” 250 F.3d at 195. We have stated that, in
determining the interest of the employer for purposes of this
balancing test, “we must consider ‘whether the [expression]
impairs discipline by superiors or harmony among co-workers,
has a detrimental impact on close working relationships for
which personal loyalty and confidence are necessary, or impedes
the performance of the speaker’s duties or interferes with the
regular operation of the enterprise.’” Id. at 198 (quoting Rankin,
483 U.S. at 388) (alteration in original). The District Court
determined in this case that there was no evidence that OIG’s
interest in conducting an efficient investigation was impaired by
Jones’s speech. However, given our precedent on this issue, a
reasonable official in Sattele’s position could have understood
his actions toward Jones as being justified because the need to
maintain efficient working relationships and to improve Jones’s
performance of his duties on the Fiorello investigation
outweighed his interest in speaking generally about potential
corruption in the pharmaceutical industry, a matter outside the
scope of the investigation OIG was conducting. Cf. Sprague v.
Fitzpatrick, 546 F.2d 560, 565 (3d Cir. 1976) (holding that, even
though speech leading to public employee’s discharge
“concerned matters of grave public import,” the balance

                               17
        We did touch on the retaliatory harassment theory again
in our Brennan decision, noting once more that “a plaintiff may
be able to establish liability under § 1983 based upon a
continuing course of conduct even though some or all of the
conduct complained of would be de minimis by itself or if
viewed in isolation.” 350 F.3d at 419 n.16. Brennan provided
some additional guidance about what types of conduct would
support such a claim, holding that some of the plaintiff’s
allegations (that he had been taken off the payroll for some time
and given various suspensions as a result of his speech) would
support a retaliation claim, whereas other of his allegations
(including his claim that his supervisor stopped using his title to
address him) would not because of their triviality. Id. at 419.
However, Brennan was not decided until 2003, after Sattele’s
alleged conduct, which occurred in the fall of 2002, had already
taken place. Thus, to the extent that Brennan added some
specificity to the contours of the retaliatory harassment cause of
action, an employee’s First Amendment right to be free from
such harassment was still not clearly established at the time of
Sattele’s conduct. See Brosseau, 125 S. Ct. at 600 n.4 (noting
that the parties had pointed the Court to “a number of
. . . cases . . . that postdate the conduct in question” and that


weighed against finding that speech protected by the First
Amendment when it had “completely undermined” the
effectiveness of the employer-employee relationship).

                                18
“[t]hese decisions, of course, could not have given fair notice to
[the official] and are of no use in the clearly established
inquiry”).

        Moreover, as discussed at Section III(A), supra, we also
stated in Brennan that courts have not found violations of
employees’ First Amendment rights “where the employer’s
alleged retaliatory acts were criticism, false accusations, or
verbal reprimands.” 350 F.3d at 419 (internal quotation marks
omitted). Brennan therefore lends support to Sattele’s argument
that his critical comments to Jones did not violate Jones’s First
Amendment rights.

       Accordingly, because of the dearth of precedent of
sufficient specificity (and factual similarity to this case)
regarding a public employee’s First Amendment right to be free
from retaliatory harassment by his or her employer at the time of
Sattele’s conduct, we cannot say that the constitutional right
Jones alleged Sattele violated was clearly established. Sattele is
therefore entitled to qualified immunity under the second, as
well as the first, prong of our Saucier analysis.

                        IV. Conclusion

       The three comments made by Sattele in response to
Jones’s voicing of his concerns about potential corruption in the
pharmaceutical industry, although critical of Jones’s speech,
were all intimately related to Jones’s job performance and would

                               19
not have deterred a person of ordinary firmness from exercising
his or her First Amendment rights. As the District Court found,
the comments were also unaccompanied by any change in
Jones’s employment benefits or wages. We cannot conclude,
based on this factual situation, that Jones alleged a deprivation
of a constitutional right.

        Moreover, even if there had been such a deprivation,
Jones’s constitutional right to be free from a campaign of
retaliatory harassment was not clearly established at the time of
Sattele’s alleged conduct. Suppan (and Baldassare to the extent
it is applicable), although they were decided before the events
at issue in this case, did not define the bounds of a retaliatory
harassment cause of action with sufficient specificity, nor were
their facts sufficiently similar to those alleged here, such that
Sattele would have been on notice that his conduct was
constitutionally prohibited.

      Accordingly, Sattele is entitled to qualified immunity,
and we reverse the contrary decision of the District Court and
remand for further proceedings.




                               20
