                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 11-3334
                                    _____________

                                VINCENT MORRIS,

                                      Appellant

                                         v.

     THE PHILADELPHIA HOUSING AUTHORITY; PHA-TENANT SUPPORT
                            SERVICES, INC.;
            CARL GREENE (individually and in his official capacity);
             ASIA CONEY (individually and in her official capacity);
          DIANE ROSENTHAL (individually and in her official capacity)
                             _____________

                   On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                 (No. 2-10-cv-5431)
                   District Judge: Honorable Michael M. Baylson

                                Argued June 26, 2012
                                   ____________

          Before: SLOVITER, CHAGARES, and JORDAN, Circuit Judges.

                                (Filed: July 6, 2012)

Michael Pileggi, Esquire (Argued)
Suite 905
303 Chestnut Street
Philadelphia, PA 19106
       Counsel for Appellant

Michael A. Bowman, Esquire (Argued)
Charles M. Gibbs, Esquire
Crystal M. Lacey, Esquire
Bowman Kavulich
1600 Market Street
25th Floor
Philadelphia, PA 19103
       Counsel for Appellee Philadelphia Housing Authority

Christopher R. Booth, Jr., Esquire (Argued)
Angela Halim, Esquire
Lisa A. Sabatino, Esquire
Joseph Zaffarese, Esquire
Ahmad & Zaffarese
One South Broad Street
Suite 1810
Philadelphia, PA 19107
       Counsel for Appellees Philadelphia Housing Authority Tenant Support Services
       and Asia Coney

Hollie B. Knox, Esquire (Argued)
Lauren Cates, Esquire
Clifford E. Haines, Esquire
Haines & Associates
1835 Market Street
Suite 2420
Philadelphia, PA 19103
       Counsel for Appellee Carl R. Greene

Sidney R. Steinberg, Esquire (Argued)
Ronald H. Levine, Esquire
Kaitlin M. Piccolo, Esquire
Post & Schell
1600 John F. Kennedy Boulevard
Four Penn Center, 14th Floor
Philadelphia, PA 19103
       Counsel for Appellee Diane Rosenthal
                                    ____________

                                     OPINION
                                    ___________
CHAGARES, Circuit Judge.

      Appellant Vincent Morris brought this case pursuant to 42 U.S.C. § 1983 against

the Philadelphia Housing Authority (“PHA”), Tenant Social Services, Inc. (“TSSI”), and

                                             2
several supervisors and colleagues, alleging that they retaliated against him for speech

protected under the First Amendment. We will affirm the District Court’s grant of the

appellees’ motions to dismiss.

                                            I.

      Because we write solely for the parties’ benefit, we set forth only the facts

essential to our disposition. From 1999 through 2010, Morris served as Executive

Assistant to PHA Executive Director Carl Greene. His duties included “the supervision

and oversight of various troubled departments at PHA including . . . TSSI.” Appendix

(“App.”) Vol. II at 9. TSSI is a non-profit organization affiliated with PHA.

      In his complaint, Morris alleged that, from 2006 through 2007, Greene required

him to participate in various lobbying activities on behalf of PHA. Greene also

purportedly ordered Morris to perform work for Equity PAC, a political action

committee that was run by TSSI director, and appellee, Asia Coney. Morris resisted

those efforts because PHA’s acceptance of funds from the United States Department of

Housing and Urban Development (“HUD”) Moving to Work Demonstration Program

precluded it from engaging in political activities of that nature. He also objected to a

lawsuit that PHA brought against HUD in 2007 and raised concerns about the

governance of TSSI. Greene and Coney allegedly responded to Morris’s opposition by

either threatening his employment or ignoring his complaints altogether. Finally, Morris

claimed that Greene and Diane Rosenthal, PHA’s Assistant Executive Director of

Finance and Administration, ignored his reports that Coney and another employee were

embezzling money from TSSI.

                                             3
       In April 2010, Greene demoted Morris, cut his pay by over $30,000, and

transferred him. As a result, Morris resigned and brought this action under 42 U.S.C.

§ 1983 alleging, inter alia, that he was constructively discharged in retaliation for his

protected speech. The District Court granted the appellees’ motions to dismiss on the

basis that Morris’s allegedly protected speech was made pursuant to his official duties

and, as such, was not protected speech under Garcetti v. Ceballos, 547 U.S. 410 (2006).

The District Court also concluded that appellees were entitled to qualified immunity

because Morris had not alleged a plausible claim for a violation of a constitutional right.

Morris appeals those rulings. 1

                                              II.

       The District Court had federal question jurisdiction over this case pursuant to 28

U.S.C. §§ 1331 and 1343. We have jurisdiction over the appeal pursuant to 28 U.S.C.

§ 1291. We exercise plenary review of the District Court’s grant of a motion to dismiss.

Santiago v. GMAC Mortg. Grp., Inc., 417 F.3d 384, 386 (3d Cir. 2005). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949 (2009) (quotation marks omitted). “A claim has facial plausibility when the




       1
        In addition, the District Court declined to exercise supplemental jurisdiction
over Morris’s Pennsylvania Whistleblower Law claims, held that Morris’s First
Amendment claims arising from ten of the thirteen alleged incidents of retaliation were
time-barred, and concluded that Morris had failed to allege adequately his other claims.
Morris does not contest those findings on appeal.

                                               4
plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id.

                                            III.

       We recognize that a public employee has the right, “in certain circumstances, to

speak as a citizen addressing matters of public concern.” Garcetti, 547 U.S. at 417. To

prevail on a First Amendment retaliation claim, a public employee must demonstrate that

(1) he or she engaged in activity that is protected by the First Amendment, and (2) the

protected activity was a substantial factor in retaliatory action by the employer. Gorum v.

Sessoms, 561 F.3d 179, 184 (3d Cir. 2009). “The first factor is a question of law; the

second factor is a question of fact.” Id.

       We proceed through three steps to ascertain whether a public employee’s speech is

protected by the First Amendment. First, as a threshold issue, we must determine

whether the employee’s speech was made pursuant to his or her official duties, and

therefore was unprotected by the First Amendment, or whether it was constitutionally

protected speech made as a citizen. Garcetti, 547 U.S. at 421 (“[W]hen public employees

make statements pursuant to their official duties, the employees are not speaking as

citizens for First Amendment purposes, and the Constitution does not insulate their

communications from employer discipline.”). If the speech was not made pursuant to an

employee’s official duties, we proceed to the analysis set forth in Pickering v. Board of

Education, 391 U.S. 563 (1968), and consider whether “the employee spoke as a citizen

on a matter of public concern.” Garcetti, 547 U.S. at 418. If the answer to that question

is yes, we must determine “whether the relevant government entity had an adequate

                                             5
justification for treating the employee differently from any other member of the general

public.” Id. In other words, we strive to “‘arrive at a balance between the interests of the

[employee], as a citizen, in commenting upon matters of public concern and the interest

of the State, as an employer, in promoting the efficiency of the public services it performs

through its employees.’” Id. (quoting Pickering, 391 U.S. at 568).

       The dispositive question here is whether the District Court correctly held that

Morris’s speech was made pursuant to his official job duties. While the Supreme Court

in Garcetti did not articulate a “comprehensive framework for defining the scope of an

employee’s duties,” it did condemn reliance on “excessively broad job descriptions” and

eschewed the use of formal job descriptions to determine whether speech was made

pursuant to an employee’s official duties. Id. at 424-25. The Court pronounced that

speech made pursuant to an employee’s official job duties has “no relevant analogue to

speech by citizens who are not government employees.” Id. at 424.

       In light of Garcetti and our subsequent cases, we conclude that Morris’s speech

was not entitled to First Amendment protection. We have consistently held that

complaints up the chain of command about issues related to an employee’s workplace

duties — for example, possible safety issues or misconduct by other employees — are

within an employee’s official duties. See, e.g., Foraker v. Chaffinch, 501 F.3d 231, 240

(3d Cir. 2007), abrogated on other grounds by Borough of Duryea v. Guarnieri, 131 S.

Ct. 2488 (2011) (“Price and Warren were acting within their job duties when they

expressed their concerns up the chain of command . . . .”); Hill v. Borough of Kutztown,

455 F.3d 225, 242 (3d Cir. 2006) (holding that a town borough manager’s reports to his

                                             6
superiors about harassment by the town mayor were not protected speech because his

reports were made pursuant to his managerial duties).

         In Foraker v. Chaffinch, we agreed with the District Court’s finding that three

Delaware State Police firearms instructors were not entitled to First Amendment

protection for their complaints to supervisors about unsafe conditions at the police firing

range, because reporting unsafe conditions to their supervisors was part of their official

duties as instructors at the range. 501 F.3d at 241, 243. The same can be said of Morris,

who acknowledged that his job duties included “the supervision and oversight of various

troubled departments at PHA including . . . TSSI.” App. Vol. II at 9. Morris’s admitted

job duties clearly include the oversight of TSSI and rooting out of financial, as well as

other, problems at PHA. As in Foraker, Morris complained to his direct supervisors and

others in PHA about potential misconduct by employees at PHA and TSSI. Reporting

instances of misconduct and advising Greene on the legality of his course of action were

responsibilities that logically fell within Morris’s duties as Greene’s Executive Assistant

and as a supervisor at TSSI. Furthermore, Morris’s reporting of the embezzlement that

he discovered while reviewing TSSI’s books can be considered part of his official duties

because it related to information acquired through his employment. Gorum, 561 F.3d at

185. 2




         2
         Morris’s § 1983 claims arising from acts of alleged retaliation that occurred
before October 14, 2008 are time-barred. Thus, we need be concerned only with the
instances of speech and alleged retaliation occurring after that date, which relate to
embezzlement and governance issues at TSSI.
                                              7
       Finally, because Morris complained to his superiors within PHA about matters

arising in the scope of his employment duties, his speech did not have a “relevant

analogue to speech by citizens who are not government employees.” Garcetti, 547 U.S.

at 424. Morris’s speech was distinct from the speech that we have concluded passes over

the Garcetti threshold and has an analogue to citizen speech. For instance, in Reilly v.

City of Atlantic City, we extended First Amendment protection to truthful in-court

testimony arising out of an employee’s official job responsibilities because an employee

speaks as a citizen in that scenario. 532 F.3d 216, 231 (3d Cir. 2008). Testimony in

court is distinguishable from internal reporting because it is part of the official

adjudication process. Thus, there is a “relevant analogue to speech by citizens who are

not government employees.” Garcetti, 547 U.S. at 424. Admittedly, as with testimony,

there is a social good that comes from internal reporting of misconduct up the chain of

command. The Supreme Court has decided, however, that we should not

constitutionalize management disputes between the government and its employees.

       For these reasons, we conclude that Morris did not allege instances of

constitutionally protected speech and he cannot move forward on his First Amendment

retaliation claim. We need not reach the question of qualified immunity.

                                             IV.

       In accordance with the foregoing, we will affirm the District Court’s dismissal of

Morris’s amended complaint.




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