                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-13-2003

Shehee v. Wilmington
Precedential or Non-Precedential: Non-Precedential

Docket 02-2601




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"Shehee v. Wilmington" (2003). 2003 Decisions. Paper 558.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/558


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                       No. 02-2601


                                     JOHN SHEHEE,
                                               Appellant

                                             v.

                          CITY OF WILM INGTON, a political
                          subdivision of the State of Delaware;
                        GREGORY W ILLIAM S, individually and in
                                 his Official Capacity;
                         CLAUDE MCCREA, individually and in
                                  his official capacity


                APPEAL FROM THE UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF DELAWARE
                                D.C. Civil No. 00-cv-00918
                     District Judge: The Honorable Sue L. Robinson


                                   Argued April 8, 2003


           Before: BECKER * , Chief Judge, BARRY and BRIGHT, ** Circuit Judges


                                   (Filed May 13, 2003)



   *
       Judge Becker completed his term as Chief Judge on May 4, 2003.
   **
      The Honorable Myron H. Bright, United States Circuit Judge for the Eighth Circuit,
sitting by designation.
Victor F. Battaglia, Esq. (Argued)
Philip B. Bartoshesky, Esq.
Biggs & Battaglia
921 Orange Street
P.O. Box 1489
Wilmington, DE 19899

Attorneys for Appellant


Rosamaria Tassone, Esq. (Argued)
Aaron Goldstein, Esq.
City of Wilmington Law Department
800 North French Street, 9th Floor
Wilmington, DE 19801

Attorneys for Appellee City of Wilmington


Kathleen M. Jennings, Esq. (Argued)
Oberly, Jennings & Rhodunda
800 Delaware Avenue, Suite 901
P.O. Box 2054
Wilmington, DE 19899

Attorney for Appellee Gregory Williams


William J. Rhodunda, Jr., Esq. (Argued)
Oberly, Jennings, Rhodunda
800 Delaware Avenue, Suite 901
P.O. Box 2054
Wilmington, DE 19899

Attorney for Appellee Claude McCrea




                                            2
                                         OPINION
                                        __________


BARRY, Circuit Judge

       Appellant John Shehee filed suit against appellees the City of Wilmington,

Gregory Williams, and Claude McCrea, alleging violations of 42 U.S.C. §§ 1983, 1985,

and 1986, the First Amendm ent, and state law. The District Court granted appellees’

motions for summary judgment. Shehee v. City of Wilmington, 205 F. Supp.2d 269 (D.

Del. 2002). Shehee filed this timely appeal. We have jurisdiction under 28 U.S.C. §

1291, and will reverse in part and affirm in part.

       Because we write primarily for the parties and the District Court, we need not

describe in any detail the factual background of this case. Suffice it to say that the central

question presented is whether the ongoing harassment of Shehee in his workplace

worsened after he testified at a deposition in a co-worker’s lawsuit against the City, and

worsened to such a degree that a reasonable jury could find that his medical breakdown

three months later was caused by retaliation against him on the basis of his protected

speech.

       We review the District Court’s grant of summary judgment de novo. Summary

judgment under Federal Rule of Civil Procedure 56(c) is proper “if there is no genuine

issue as to any material fact and the moving party is entitled to judgment as a matter of


                                              3
law.” FED. R. C IV. P. 56(c).




I.     42 U.S.C. § 1983 CLAIM FOR FIRST AMENDMENT RETALIATION

       The District Court correctly analyzed Shehee’s § 1983 retaliation claim under the

three-step process set forth in Green v. Philadelphia Housing Authority, 105 F.3d 882 (3d

Cir. 1997). In order to state a prima facie case of discrimination, a plaintiff must first

show that he or she engaged in protected speech. Second, the plaintiff must show that the

protected speech was a substantial or motivating factor in the alleged acts of retaliation.

Third, the defendant may defeat the plaintiff’s claim by showing that the same actions

would have been taken even absent the protected conduct. Green, 105 F.3d at 885.

       Neither party has challenged the District Court’s conclusion that Shehee’s

deposition testimony in Brown v. Sills, Civ. No. 99-680-RRM (D. Del.), on June 14, 1999

was protected speech. Therefore, we will turn our attention to the second step of the

Green inquiry.

       In order to show that the protected speech was a substantial or motivating factor in

the alleged acts of retaliation, a plaintiff need not show that the decision was motivated

solely by anti-speech animus, or even that the illegal animus was the dominant or primary

motivation for the retaliation. Suppan v. Dadonna, 203 F.3d 228, 236 (3d Cir. 2000).

This is less than a showing that the plaintiff’s protected conduct was the “but for" cause




                                              4
of the challenged actions.1 Id.

       Shehee alleges that, after he gave his deposition, Williams (and to a lesser extent

McCrea) harassed him by reducing his responsibilities, micro-managing his decisions,

instructing other employees to report negative findings about his job performance,

imposing unique reporting requirements on him, and, after he took medical leave,

changing the office locks and boxing up and storing his belongings. When determining

whether a retaliatory campaign of harassment is actionable, the question is whether the

alleged retaliatory conduct would “deter a person of ordinary firmness from exercising his

First Amendment rights.” Suppan, 203 F.3d at 233. The District Court found that the

alleged acts of harassment, except for the changed locks and boxed-up personal items,

would call for a “yes” in answer to this question. We agree.

       The District Court also found, however, that no reasonable jury could find a link

between the harassment and the protected speech because “the alleged harassment that

ultimately resulted in plaintiff taking medical leave was part of a continuing atmosphere

of hostility.” Shehee v. City of Wilmington, 205 F. Supp.2d 269, 278 n.10 (D. Del. 2002).

Indeed, the evidence paints a compelling picture that Williams was unprofessional,

abusive, erratic, hostile, and/or irrational toward many employees of the Department of



   1
     That burden is on the defendant; if the plaintiff sets forth a prima facie case of
discrimination, the defendant may defeat it by showing that the challenged actions would
have been taken regardless of the plaintiff’s protected conduct, i.e. that there is no “but
for” causation. Suppan, 203 F.3d at 236.

                                             5
Parks and Recreation, including Shehee and even McCrea, during much of his tenure as

Director of the Department. While Shehee concedes that the harassment by Williams

began before the June 1999 deposition, he contends that a reasonable jury could find that

the harassment intensified after his deposition and intensified as a result of that

deposition, in violation of § 1983. We agree with respect to W illiams, but not with

respect to McCrea.

       Shehee’s testimony that the harassment intensified during the summer of 1999 is

supported by several witnesses. Tarrone Richardson testified that McCrea, at Williams’s

behest, told him to “spy [on] and find incriminating evidence” about Shehee on June 23,

1999, shortly after the Brown deposition. Katrina Cooper testified that after Shehee’s

deposition, Williams watched the building more intensely and the atmosphere in the

office became more tense. Michael Stewart testified that at a meeting during the summer

of 1999 with McCrea and Williams, he was told that one of their goals was to “get rid of”

Shehee. JoAnne Parker-Henry testified that after Shehee was deposed in the Brown case,

Williams told her that Shehee “wasn’t being loyal because he was giving a deposition for

Mike Brown and he had no choice but to find some reason to fire him . . . . [Williams]

just became extremely . . . obsessive in this idea that he had to go.”

       Although other evidence suggests that Williams’s campaign to get rid of Shehee

began before the deposition, a reasonable jury could find that the harassment by Williams

intensified during the summer of 1999, and that it was motivated by retaliation on the


                                              6
basis of protected speech. There is, therefore, a genuine issue of fact as to whether

Shehee has satisfied his prima facie case against Williams.

       With respect to the third step of the Green inquiry, appellees argue that Shehee

would have been harassed even if he had not testified in the Brown case. However, since

Shehee has presented evidence that the level of harassment increased after he exercised

his First Amendment rights, see discussion supra, we conclude that there is a genuine

issue of material fact as to whether he would have been harassed to the sam e extent,

absent the protected activity. We note, moreover, that Shehee had worked under

Williams without medical incident for several years. A reasonable jury could find that

increased workplace stress during the summer of 1999 caused him to take medical leave

within three months of his deposition and come under psychiatric care two months after

that, and that the intensified harassment was, so to speak, the final straw that broke

Shehee’s back – and his health.

       We reach a different disposition with regard to McCrea. It was Williams, not

McCrea, who was criticized by Mike Brown on television, prompting Brown’s lawsuit

against the City and Shehee’s deposition. The evidence is overwhelming that the impetus

for the subsequent harassment came from Williams; indeed, and importantly, the only

evidence that McCrea even knew about Shehee’s deposition was a very tentative

statement to that effect by Shehee himself. The sole motive suggested for McCrea’s

alleged participation in Williams’s harassment campaign against Shehee was fear of


                                              7
losing his job because Williams threatened precisely that if McCrea did not do as he was

told.

        Based on this record, no reasonable jury could infer that McCrea’s alleged

participation in Williams’s harassment of Shehee was motivated by Shehee’s testimony in

Brown’s lawsuit. The District Court correctly granted summary judgment to McCrea on

the § 1983 claim.




II.     LIABILITY OF THE CITY O F WILMINGTON UNDER 42 U.S.C. § 1983

        Because the City cannot be liable for the constitutional torts of its employees by

virtue of respondeat superior, in order to defeat the City’s summary judgment motion,

Shehee was required to show that the alleged retaliation was inflicted because of the

“execution of a government’s policy or custom, whether made by its lawmakers or by

those whose acts or edicts can fairly be said to represent official policy.” Monell v. Dept.

of Soc. Servs., 436 U.S. 658, 694 (1978).

        Interpreting two decisions by a divided Supreme Court in Pembaur v. City of

Cincinnati, 475 U.S. 469 (1986) and City of St. Louis v. Praprotnik, 485 U.S. 112 (1988),

we have held that municipal policy may be made either by official proclamation or by

acquiescence in a permanent custom. Andrews v. City of Philadelphia, 895 F.2d 1469,

1480 (3d Cir. 1990). An official policymaker can subject the m unicipality to liability

either by knowingly acquiescing in the challenged actions or by delegating his or her


                                              8
authority to the employee responsible for those actions. Id. at 1481. The City, therefore,

can only be liable under § 1983 for Williams’s actions if either: (1) Williams was a final

policymaker; (2) a final policymaker knowingly acquiesced in Williams’s actions; or (3)

a final policymaker delegated his or her authority to Williams.

       In determining whether Williams was a “final policymaker,” we turn to the

applicable Delaware law: here, the Wilmington City Charter and Code. A “final

policym aker” is not always the chief executive officer, which in this context is the M ayor.

W ILMINGTON C ITY C HARTER § 4-100. The test is “which official has final, unreviewable

discretion to make a decision or take an action.” Andrews, 895 F.2d at 1481 (finding that

police commissioner was final policymaker for § 1983 purposes in sexual harassment

lawsuit, because he had promulgated department training manual regarding sexual

harassment, established an equal employment office to deal with discrimination issues,

and personally reviewed the report about the plaintiffs’ complaint).

       The Wilmington City Charter vests the executive and administrative power of the

City in the “mayor and such other officers, departments, boards and commissions as are

authorized or designated in this Charter . . . .” W ILMINGTON C ITY C HARTER § 1-103(1).

The Charter designates a variety of departments to perform the executive and

administrative work of the City, including the Department of Parks and Recreation. Id. §

3-100. The Charter further provides that the head of each department “shall exercise the

powers and perform the duties vested in and imposed upon the department.” Id. § 3-101.


                                              9
       The issue is not whether Williams had the authority to handle employees on a day-

to-day basis, which he undoubtedly did. Rather, the issue is whether Williams, as head of

the Department, had the discretionary authority to institute an illegal policy of harassing

employees such as Shehee for exercising their First Am endment rights. He clearly did.

Therefore, Williams was a final policymaker whose acts in violation of § 1983 may fairly

be said to represent the City’s official policy. See Monell, 436 U.S. at 694. Because we

find that the City is responsible for actions taken by Williams in violation of § 1983, we

need not reach the other possible bases for the City’s liability. We note, however, that it

cannot be the case that every employee with the power and ability to harass another

employee is a final decision-maker on behalf of the municipality whenever retaliation by

harassment is alleged. Rather, to be a final policymaker, the employee must have greater

decision-making authority. In the present case, Williams had the final say regarding the

hiring and firing of employees. If Williams could have fired Shehee, it simply does not

make sense to argue that he did not have the final policymaking authority to harass him (a

lesser retaliatory action).

       The District Court erred, therefore, in granting summary judgment to the City on

the § 1983 claim.




III.   LIABILITY UNDER 42 U.S.C. §§ 1985 AND 1986

       Shehee also alleges that Williams and McCrea conspired to injure him because of


                                             10
his deposition testimony in Brown, in violation of 42 U.S.C. §§ 1985 and 1986.

       42 U.S.C. § 1985 prohibits conspiracy by two or more persons to intimidate or

threaten any witness from giving full, free, and truthful testimony in a pending matter or

to injure such a witness on account of his having given such testimony. 42 U.S.C. §

1985(2). We have held that the “essential allegations of a 1985(2) claim of witness

intimidation are (1) a conspiracy between two or more persons (2) to deter a witness by

force, intimidation or threat from attending court or testifying freely in any pending

matter, which (3) results in injury to the plaintiffs.” Malley-Duff & Assocs., Inc. v. Crown

Life Ins. Co., 792 F.2d 341, 356 (1986), aff’d, 483 U.S. 143 (1987). Where, as here, the

issue is not witness intimidation but retaliation, the second prong must be interpreted to

bar any conspiracy to retaliate against a witness who has attended court or testified in any

pending matter, which results in injury to him or her.

       Even had we held M cCrea in on the § 1983 retaliation claim, the evidence is

insufficient to raise a genuine issue of fact as to whether Williams and M cCrea agreed to

intensify any pre-existing harassment because of Shehee’s deposition testimony on June

of 1999. Although a co-conspirator need not know all of the details of the illegal plan, he

or she must have shared in the general conspiratorial objective. See Weberg v. Franks,

229 F.3d 514, 526 (6th Cir. 2000). Moreover, an agreement between Williams and

McCrea to harass Shehee, while offensive, would not violate § 1985; it is the agreement

to retaliate against Shehee for exercising his First Amendment rights that brings the


                                             11
conspiracy under § 1985. There is no evidence of such an agreement. Shehee’s § 1985

claim was properly dismissed.

      Violations of 42 U.S.C. § 1986 by definition depend on a pre-existing violation of

§ 1985. See Clark v. Clabough, 20 F.3d 1290, 1295, 1295 n.5 (3d Cir. 1994). Because

the § 1985 claim was correctly dismissed, the District Court also correctly dismissed

Shehee’s § 1986 claim.




IV.   CONCLUSION

      For the foregoing reasons, we will reverse in part and affirm in part. We will

reverse the District Court’s grant of summary judgment to W illiams and the City as to

Shehee’s claims under 42 U.S.C. § 1983 and will reverse the Court’s concomitant refusal

to exercise supplemental jurisdiction over the State law claims. We will affirm the

dismissal of Shehee’s claims under 42 U.S.C. §§ 1985 and 1986, and will affirm the grant

of summary judgment to McCrea on the § 1983 claim. We will remand for further

proceedings consistent with this opinion.




TO THE CLERK OF THE COURT:

      Kindly file the foregoing Opinion.


                                  /s/ Maryanne Trump Barry
                                         Circuit Judge


                                            12
