                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-4-2002

Ambrose v. Robinson
Precedential or Non-Precedential: Precedential

Docket No. 01-1871




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PRECEDENTIAL

       Filed September 4, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 01-1871 and 01-3229

TERRY L. AMBROSE,

v.

TOWNSHIP OF ROBINSON, PENNSYLVANIA,

       Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 99-cv-01218)
District Judge: The Honorable Donetta W. Ambrose

Argued April 30, 2002

BEFORE: NYGAARD, ROTH, and WEIS, Circuit Judge s.

(Filed: September 4, 2002)

       David P. Helwig, Esq. (Argued)
       Marks, O’Neill, O’Brien & Courtney
       707 Grant Street
       3200 Gulf Tower
       Pittsburgh, PA 15219
        Counsel for Appellant,
       Terry L. Ambrose




       Joseph H. Chivers, III, Esq. (Argued)
       Suite 600
       312 Boulevard of the Allies
       Pittsburgh, PA 15222
        Counsel for Appellee,
       Township of Robinson

       Samuel P. Kamin, Esq.
       Goldberg, Kamin & Garvin
       437 Grant Street,
        1806 Frick Building
       Pittsburgh, PA 15219
        Counsel for Appellant,
       Township of Robinson

OPINION OF THE COURT

NYGAARD, Circuit Judge:

The issue on appeal is whether the District Court should
have entered a judgment as a matter of law for Robinson
Township in this First Amendment retaliation case
involving one of its police officers. We find that there was
insufficient evidence that the officer’s speech was a
motivating factor in his suspension, and that the District
Court’s "perceived support" theory does not provide a legal
basis for liability. We will reverse and remand the cause to
the District Court for it to enter judgment in favor of the
Township.

I.

Until his recent retirement, Appellee, Terry Ambrose, was
a sergeant in Robinson Township’s police department.
Ambrose was suspended from his position for thirty days in
1999. He then brought this suit alleging that he was
suspended in retaliation for his aid and/or support of a
fellow officer’s lawsuit against the Township.

The fellow officer, James Felt, had sued Robinson
Township for a series of "adverse consequences" he
allegedly suffered at work. Felt v. Township of Robinson, No.

                                2


99-330 (W.D. Pa. 1999). These "adverse consequences"
included a suspension, frequent criticisms, threats of
disciplinary action, the arbitrary changing of his schedule,
accusations of unlawful conduct, demands for repayment of
amounts paid in a settlement, and precluding him from
effectively discharging his duties. Felt alleged that the
adverse consequences occurred because he participated in
a series of raids on three establishments where police
suspected that video poker machines were being used for
gambling.

On May 13, 1999, Ambrose executed an affidavit
regarding facts known to him relevant to Felt’s case. In his
affidavit, Ambrose identified facts suggesting that illegal
gambling has been and continues to be a problem in
Robinson Township. He further asserted that these facts, at
the very least, have been ignored by senior managers and
officials in the Township. Ambrose’s affidavit was received
by David Helwig, who was Robinson’s lawyer in the Felt
lawsuit, on June 17, 1999 as part of a document
production. The complete document production, including
Ambrose’s affidavit, was then forwarded by Helwig to
Robinson Township solicitor Sam Kamin. Robinson
Township manager Berne Dudash received a letter from
attorney Robert Garvin of Kamin’s office on July 12, 1999
stating that the Felt document production included certain
documents which apparently could only have been obtained
from the township’s administrative offices. Garvin’s letter
made no reference to Ambrose’s affidavit.

On June 11, 1999, which is before Ambrose’s affidavit
was received by the Township, Detective Steve Lipa was
advised by one of the radio dispatchers that Ambrose had
been seen going into the administrative spaces of the
municipal building where the police department is located.
This occurred after normal business hours, but during
Ambrose’s normal working shift. The administrative offices
house information pertaining to negotiations over collective
bargaining agreements with Township employees, and
correspondence between Township officials and the
Township’s attorneys. Detective Lipa passed this
information along to Chief Vietmeier, who in turn told the
Township’s Commissioners on June 14, 1999. Upon

                                3


hearing this, the Commissioners instructed Chief Vietmeier
to investigate.

Vietmeier reviewed the videotapes from a surveillance
camera positioned above the entrance to the administrative
spaces, and they showed Ambrose entering the
administrative spaces. Vietmeier’s investigation also
revealed that daily activity logs prepared by Ambrose for
May 29 and July 1, 1999 allegedly indicated that Ambrose
was performing duties outside the municipal building when
he actually was in the administrative offices.

Chief Vietmeier gave Ambrose a "Loudermill hearing"1 on
July 8, 1999 in connection with his entry into the closed
administrative offices and the allegedly misleading entries
in his daily activity log. Ambrose admitted that he entered
the administrative offices, but said he did so to copy police
department forms because the police department’s
photocopy machine made poor copies. Ambrose denied in
his deposition and trial testimony that he made copies of
documents produced in the Felt lawsuit while he was in the
administrative offices.

On July 9, 1999, Vietmeier informed Ambrose in writing
that he was suspended without pay conditional upon a
review by the Board of Commissioners. The letter identified
the following reasons for the suspension: conduct
unbecoming a member of the department; entering a locked
municipal building without permission or authority; and
false statements concerning official documents.

The Commissioners met and discussed Ambrose’s actions
on July 12, 1999. During the discussions, Ambrose was
accused of copying documents for Officer Felt in aid of
Felt’s lawsuit against the Township. Although there was
discussion of termination, the Commissioners voted to
suspend Ambrose for thirty working days. Ambrose is
currently appealing his suspension before the Civil Service
Commission of Robinson Township.
_________________________________________________________________

1. This is the name given to a hearing for a public employee conducted
pursuant to the Supreme Court’s decision in Cleveland Board of
Education v. Loudermill, 470 U.S. 532 (1985).

                                4
Ambrose filed this lawsuit pursuant to the Civil Rights
Act of 1871, 42 U.S.C. S 1983, as amended, and the
Pennsylvania Whistleblower Law, 43 Pa. Cons. Stat. Ann.
S 1421 et seq. Ambrose alleged that the real reason he was
suspended was because he had provided an affidavit in
support of Officer Felt’s lawsuit against the Township, and
he alleged that this violated his First Amendment rights. A
jury returned a verdict in Ambrose’s favor and awarded him
$6,200.00 in back wages. He was also awarded $32,678.59
in attorney’s fees and costs by the District Court pursuant
to 42 U.S.C. S 1983.

Robinson Township appealed claiming numerous errors. 2
We only need to consider one of them because we find that
the District Court erred by denying the Township’s motion
for a judgment as a matter of law. We have appellate
jurisdiction pursuant to 28 U.S.C. S 1291.
_________________________________________________________________

2. Appellant’s issues presented for review included whether the District
Court erred: (i) by denying Robinson Township’s Fed. R. Civ. P. 50
motion and its post-trial renewed Fed. R. Civ. P. 50 and Fed. R. Civ. P.
59 motions where there was no evidence that the affidavit given by
officer Ambrose was a motivating factor in his suspension, and where
Appellee’s "perceived support" theory did not provide a legal basis for the
jury’s verdict against Appellant; (ii) by denying Robinson Township’s
motion for summary judgment where there was no evidence that
Ambrose’s giving an affidavit was a motivating factor in his suspension;
(iii) by denying Robinson Township’s motion in limine seeking to exclude
as irrelevant evidence that Ambrose was suspended because the
Robinson Township Commissioners believed that he had engaged in
conduct not protected by the First Amendment, which conduct officer
Ambrose denied engaging in; (iv) by instructing the jury that officer
Ambrose engaged in conduct protected by the First Amendment by
"generally supporting" a fellow officer in another lawsuit; (v) by
instructing the jury that Ambrose could prove legal causation by
showing that the decision to suspend him was motivated by his
perceived support for his fellow police officer’s lawsuit; (vi) by refusing to
give Robinson Township’s proposed jury instructions 12A, 16A, 17A, and
19A; and (vii) by denying Robinson Township’s Fed. R. Civ. P. 59 motion
for new trial based on Ambrose’s improper exercise of a peremptory
challenge to strike the only African-American on the jury panel.

                                5


II.

The Township’s first allegation of error is that the District
Court should have granted its motion for a judgment as a
matter of law. We apply the following standard on review:

       We exercise plenary review of an order granting or
       denying a motion for judgment as a matter of law and
       apply the same standard as the district court.
       Wittekamp v. Gulf & Western Inc., 991 F.2d 1137, 1141
       (3d Cir. 1993). Such a motion should be granted only
       if, viewing the evidence in the light most favorable to
       the nonmovant and giving it the advantage of every fair
       and reasonable inference, there is insufficient evidence
       from which a jury reasonably could find liability. Id. In
       determining whether the evidence is sufficient to
       sustain liability, the court may not weigh the evidence,
       determine the credibility of witnesses, or substitute its
       version of the facts for the jury’s version. Fineman v.
       Armstrong World Indus., Inc., 980 F.2d 171, 190 (3d
       Cir.1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1285,
       122 L.Ed.2d 677 (1993). Although judgment as a
       matter of law should be granted sparingly, a scintilla of
       evidence is not enough to sustain a verdict of liability.
       Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d
       Cir. 1993). "The question is not whether there is
       literally no evidence supporting the party against whom
       the motion is directed but whether there is evidence
       upon which the jury could properly find a verdict for
       that party." Patzig v. O’Neil, 577 F.2d 841, 846 (3d Cir.
       1978) (citation omitted) (quotation omitted). Thus,
       although the court draws all reasonable and logical
       inferences in the nonmovant’s favor, we must affirm an
       order granting judgment as a matter of law if, upon
       review of the record, it is apparent that the verdict is
       not supported by legally sufficient evidence.

Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d
Cir. 1993). Therefore, if there is insufficient evidence to
support a jury verdict, we should remand to the district
court with instructions to enter a judgment as a matter of
law for the Township.

                                6


A.

We apply a three-step test to Ambrose’s claim that he
was suspended in retaliation for exercising his First
Amendment rights. Bd. of County Comm’rs. v. Umbehr, 518
U.S. 668, 675 (1996). First, a plaintiff must show that his
conduct was constitutionally protected. Id. Second, he must
show that his protected activity was a substantial or
motivating factor in the alleged retaliatory action. Id.
Finally, the defendant may defeat the plaintiff ’s case "by
showing that it would have taken the same action even in
the absence of the protected conduct." Id. See also Green v.
Philadelphia Hous. Auth., 105 F.3d 882, 885 (3d Cir. 1997).

The Township argues that Ambrose never met his initial
burden of showing that his affidavit was a substantial or
motivating factor in the Commissioners’ decision to
suspend him since he did not produce any evidence
showing that any of the Township Commissioners knew
about his affidavit before they voted to suspend him on
July 12, 1999. All of the Commissioners who voted for the
suspension testified that they knew nothing about the
affidavit before they voted. If the Commissioners did not
know about the affidavit, the Township argues, it could not
have been a substantial or motivating factor in their
decision. Therefore, Robinson Township contends that the
District Court should have entered judgment in its favor.
It is only intuitive that for protected conduct to be a
substantial or motiving factor in a decision, the
decisionmakers must be aware of the protected conduct.
See Allen v. Iranon, 283 F.3d 1070, 1076 (9th Cir. 2002)
(finding in First Amendment retaliation case that"[i]n order
to retaliate against an employee for his speech, an employer
must be aware of that speech."). Thus, if the
Commissioners were unaware of Ambrose’s affidavit, it
could not possibly have been a substantial or motivating
factor in their decision to suspend him, and Ambrose’s
First Amendment retaliation claim would necessarily fail.
We so hold.

Ambrose points to no evidence showing the
Commissioners were aware of his affidavit. He argues in his
brief that "[t]he fact that all of the commissioners called to

                                7


testify denied knowing of the affidavit before the vote on
July 12, 1999, is not dispositive of whether the jury could
find that one or more of them did know." Br. at 13.
Although we agree that the Commissioners’ denials are not
necessarily dispositive of the issue, Ambrose fails to point
to any other evidence showing that they did know about his
affidavit. He bears the burden of proof, but fails to sustain
it.

The only evidence Ambrose cites is that "Defendant
admitted receiving the affidavit on June 17, 1999." Br. at
13. This fact, which is true, is nonetheless misleading when
considered out of context, and still fails to prove that the
Commissioners knew about Ambrose’s affidavit when they
voted to suspend him. The parties stipulated at trial that on
June 17, 1999 Ambrose’s affidavit was received as part of
a document production by David Helwig, who had been
retained to represent the Township in Officer Felt’s lawsuit.
App. at 629. Subsequently, on June 23, Helwig sent the
entire 371-page document production, including the
affidavit, to the Township’s solicitor, Sam Kamin.
Appellant’s Br. at 7; App. at 651. But that is all the record
shows. There is no evidence that anyone brought Ambrose’s
affidavit to the attention of the Township Commissioners or
that they were otherwise aware of it when they voted to
suspend Ambrose. Thus, the Township’s "admission" that it
received Ambrose’s affidavit on June 17, in the person of its
retained counsel, is not at all probative as to whether or
when the Commissioners knew about the affidavit.

Ambrose also argues that the "temporal proximity"
between the Township’s receipt of his affidavit and his
suspension provided an adequate basis for the jury’s
conclusion that the affidavit was a substantial factor in the
Commissioners’ decision to suspend him. We recognized in
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir.
2000), that suggestive timing is relevant to causation in
Title VII retaliation cases, and we recently cited Farrell in a
prisoner’s First Amendment retaliation case in support of
the proposition that "suggestive temporal proximity" is
relevant to establishing a causal link between protected
conduct and retaliatory action. Rauser v. Horn , 241 F.3d
330, 334 (3d Cir. 2001). Furthermore, other courts of

                                8


appeals have more explicitly recognized the relevance of
temporal proximity in First Amendment retaliation cases.
See Nethersole v. Bulger, 287 F.3d 15, 18 (1st Cir. 2002);
Gorman-Bakos v. Cornell Coop. Extension of Schenectady
County, 252 F.3d 545, 554-55 (2d Cir. 2001); Cockrel v.
Shelby County Sch. Dist., 270 F.3d 1036, 1056 (6th Cir.
2001), petition for cert. filed, 70 U.S.L.W. 3669 (U.S. Apr.
15, 2002) (No. 01-1548); Hudson v. Norris, 227 F.3d 1047,
1051 (8th Cir. 2000); Allen v. Iranon, 283 F.3d 1070, 1077
(9th Cir. 2002). But see Wagner v. Wheeler, 13 F.3d 86, 91
(4th Cir. 1993); Butler v. City of Prairie Vill ., 172 F.3d 736,
746 (10th Cir. 1999).

Yet this is all largely irrelevant here. The cases listed
above found temporal proximity to be relevant in
establishing that protected activity was a substantial or
motivating factor for retaliation. None of these cases
suggest that temporal proximity can be used to show that
an employer was aware of the protected conduct in the first
place. Consequently, Ambrose’s "temporal proximity"
argument cannot show that the Commissioners had
knowledge of his affidavit when they suspended him, which
must be found as part of determining whether the affidavit
was a substantial or motivating factor in his suspension.
We agree, therefore, with the Township that Ambrose
offered no evidence sufficient to show that the
Commissioners were aware of his affidavit, and we conclude
that the District Court erred by not entering judgment as
amatter of law in favor of the Township on this point.

B.

We must also address an additional basis upon which it
appears the District Court permitted Ambrose’s case to go
to a jury. The District Court, in its summary judgment
opinion, suggested that "perceived support" can be the
basis of a First Amendment retaliation case. Presumably,
the District Court’s "perceived support" theory also weighed
on its decision not to direct a verdict, so we should consider
the viability of that theory.

The District Court recognized that temporal proximity
alone may not be enough evidence to support a finding of

                                9


retaliatory discharge. At the summary judgment stage, the
court did not actually decide the temporal proximity issue,
saying:

       I need not decide this issue [whether temporal
       proximity alone can be enough evidence to support a
       finding of retaliatory action], however, because there is
       additional evidence to support the allegation that his
       suspension was in retaliation for his support of Officer
       Felt. For instance, there is evidence that the Chief of
       Police and some Commissioners believed that Plaintiff
       was providing Officer Felt with documents to support
       his case. [Quoting excerpts of Chief Vietmeier’s
       deposition testimony.] In addition, Commissioner
       Marks testified regarding specific discussions held at
       the Commissioners’ meeting where they voted to
       suspend Plaintiff. [Quoting Marks’ deposition testimony
       that Detective Lipa accused Ambrose of going through
       Township records to obtain documents for Felt’s
       lawsuit.]

App. at 13-16. From this, the District Court concluded
"that the record contains sufficient evidence that a jury
could conclude that Plaintiff ’s support of Officer Felt was a
substantial and motivating factor in Defendant’s decision to
suspend Plaintiff " and summary judgment would be
inappropriate. App. at 16.

The Township argues that the District Court’s "perceived
support" theory cannot form the basis of a First
Amendment retaliation claim. We agree. Plaintiffs in First
Amendment retaliation cases can sustain their burden of
proof only if their conduct was constitutionally protected,
and, therefore, only if there actually was conduct. Fogarty v.
Boles, 121 F.3d 886, 890 (3d Cir. 1997). In Fogarty, a
public school teacher sued the school’s principal alleging
that he was punished because of the principal’s mistaken
belief that the teacher had called the press about a matter
of public interest at the school. Id. at 887. The teacher
denied contacting, attempting to contact, or intending to
contact the press. Id. We found that because the teacher
did not engage in any speech, his First Amendment
retaliation claim must fail. Id. We distinguished cases in
the regulatory field where liability was assessed against

                                10


employers for retaliatory discharge based on the employer’s
erroneous beliefs about the employee’s conduct. Id. at 890.
Additionally, we noted that the Supreme Court in Waters v.
Churchill, 511 U.S. 661 (1994), "made it clear that statutory
rights and constitutional rights in the employment context
are not coextensive" through its observation that"[w]e have
never held that it is a violation of the Constitution for a
government employer to discharge an employee based on
substantively incorrect information." Fogarty , 121 F.3d at
890 (quoting Waters, 511 U.S. at 679). We concluded that
"the absence of speech--in fact, its explicit disclaimer by
plaintiff--is fatal to the plaintiff ’s claim." Id. at 891. Other
courts of appeals similarly have held that there can be no
First Amendment claim when there is no speech by the
plaintiff. See Wasson v. Sonoma County Junior Coll., 203
F.3d 659 (9th Cir. 2000), cert. denied, 531 U.S. 927 (2000);
Jones v. Collins, 132 F.3d 1048, 1054 (5th Cir. 1998);
Barkoo v. Melby, 901 F.2d 613 (7th Cir. 1990).

The present case is similar to Fogarty. The"perceived
support" that Ambrose gave to Officer Felt is based on
Ambrose allegedly entering administrative offices after
hours and taking documents which he passed on to Felt.
The District Court cites evidence that Township officials
suspected Ambrose was entering administrative offices and
passing records on to Felt and concludes that this
"perceived support" of Felt may have been a"substantial or
motivating" factor in Ambrose’s suspension. The problem
here, as in Fogarty, is that there is no protected conduct.
The only acts that could possibly constitute protected
conduct are Ambrose’s alleged actions in obtaining records,
yet Ambrose denies he did any such thing, much like the
teacher’s denial in Fogarty. Ambrose claims he entered the
administrative offices only to use the copier because the
police department’s copier was malfunctioning.
Furthermore, the District Court instructed the jury that
"unauthorized entry into closed administrative officers for
the purpose of copying records is not activity protected by
the First Amendment." Thus, we are left with the same
situation as in Fogarty: There was no speech (as Ambrose

                                11


admits and the District Court found), so there can be no
First Amendment retaliation claim.3

III.

In sum, we hold that the District Court erred by not
entering judgment as a matter of law for Robinson
Township. First, there was insufficient evidence to support
a finding that Ambrose’s affidavit was a substantial or
motivating factor in his suspension. There is no direct
evidence that the Commissioners were aware of the affidavit
when they voted to suspend him, and "temporal proximity"
is not sufficient to establish their awareness by
circumstantial evidence. Second, the other theory upon
which the District Court based S 1983 liability, the
"perceived support" doctrine, cannot form the basis of a
First Amendment retaliation claim. Therefore, we will
remand the cause for the District Court to enter judgment
in favor of the Township.

Additionally, we will vacate the District Court’s award of
attorney’s fees and costs to Ambrose as he is no longer a
"prevailing party" entitled to such fees under 42 U.S.C.
S 1988.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

3. Thus, any suggestion by the District Court to the jury in its
instructions that Ambrose’s "perceived support" of Officer Felt could form
the basis of liability was erroneous. Given our disposition, however, we
need not give this error significant attention here.

                                12
