                                        PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                ________________

                       No. 17-2597

                    ________________

              MICHAEL J. PALARDY, JR.,

                                  Appellant

                            v.

              TOWNSHIP OF MILLBURN;
                TIMOTHY P. GORDON

                    ________________

      On Appeal from the United States District Court
              for the District of New Jersey
                (D.N.J. No. 2:15-cv-02089)
         District Judge: Hon. Susan D. Wigenton
                    ________________

                  Argued April 24, 2018

Before: AMBRO, SCIRICA, and SILER, JR.*, Circuit Judges

*
  Hon. Eugene E. Siler, Jr., United States Court of Appeals
for the Sixth Circuit, sitting by designation.
                 (Filed: September 28, 2018)

Dennis A. Durkin, Esquire (Argued)
Law Offices of Dennis A. Durkin
P.O. Box 88
Roseland, NJ 07068

      Counsel for Appellant

Littie E. Rau, Esquire (Argued)
Ruderman Horn & Esmerado
675 Morris Avenue, Suite 100
Springfield, NJ 07081

      Counsel for Appellees
                   ________________

                OPINION OF THE COURT
                   ________________

SILER, Circuit Judge

       Michael Palardy, a retired police officer of Township
of Millburn, New Jersey, alleges that the Township’s business
administrator, Timothy Gordon, unlawfully prevented him
from becoming Chief of Police because Gordon opposed
Palardy’s union membership and activity. The district court
held Palardy’s union-related speech and association were not
constitutionally protected and granted summary judgment in
favor of the Township and Gordon on his 42 U.S.C. § 1983
First Amendment retaliation claims. We agree with Palardy
that the district court should have analyzed his speech and
association claims separately and that his association with the




                              2
union deserves constitutional protection. However, Palardy’s
speech claim must fail because it is indistinguishable from his
associational claim. Therefore, we affirm in part, reverse in
part, and remand for further proceedings.

                               I.
      Palardy worked as a police officer for the Township
from 1988 until his retirement in 2014.          During his
employment, he was promoted three times: first to sergeant in
1995, then to lieutenant in 1998, and finally to captain in
2012.

        Palardy was also active in the police officers’ unions—
first the Patrolmen’s Benevolent Association (PBA), and then
the Superior Officers’ Association (SOA). In 1991 or 1992,
Palardy served as the PBA’s sergeant-at-arms. He was also a
union delegate from 1992 to 1995. Later in his career,
Palardy became more involved in union leadership. He
served as the SOA’s vice president in 2007 or 2008, and as its
president in 2009 or 2010. During his employment, Palardy
estimates that he participated in four or five contract
negotiations between the unions and the Township. He also
attended at least two disciplinary hearings for fellow officers.

       Gordon was the Township’s business administrator
during Palardy’s entire employment. Among other duties, he
was responsible for the Township’s personnel matters and
had the authority to hire, fire, and promote Township
employees, including police officers. According to Palardy,
Gordon repeatedly stymied Palardy’s attempts to become
Chief of Police. Palardy testified that other officers told him
Gordon repeatedly made statements reflecting negatively on
Palardy’s union activity. For instance, Gordon told officer
Robert Brown that Palardy would never become chief
“because of his union affiliation and being a thorn in my side




                               3
for all these years.” Gino Baldani said that Gordon told him
Palardy “wasn’t a good supervisor . . . because [he] was too
close to [his] men and [he] would have problems separating
[his] union business with police department work and being a
supervisor.”      And Gordon told former chief Paul
Boegershausen that Palardy “ha[d] to learn how to separate
[him]self from the rank and file.”

       The events relevant to this case began in late 2010,
when the Township was without a chief or a team of captains.
By then, Palardy was the department’s most senior lieutenant
and was next in line to become a captain. The Township’s
custom during this time was to select its new chief from its
roster of captains; during Gordon’s tenure, there had never
been an exception to this rule. Because Palardy was a
lieutenant, he was not eligible to immediately become chief.
However, Palardy believed that he could have been promoted
to captain for a short time and then promoted to chief.
According to Palardy, this is precisely what happened shortly
after his retirement: Palardy testified that, as of September
2016, the acting chief had only been a captain for a few
months prior to his promotion.

       On this occasion, though, Gordon told Palardy and
another lieutenant that he did not believe any of the
lieutenants had enough experience to become chief, and that
he was considering having the Chief of Police from nearby
Livingston, New Jersey, serve in a dual capacity as the chief
of both towns. That plan did not come to fruition because
Gregory Weber, a Millburn captain who had been on inactive
duty for health reasons, returned to active duty and was
promoted to chief in September 2011. Weber then gave
Palardy the title of “acting captain,” which came with
additional responsibilities but no pay increase. Around this
time, Palardy stepped down as union president because he
“knew Mr. Gordon had a problem with [his] union affiliation”




                             4
and he wanted “to get the stigma off . . . [himself] that [he]
was only a union guy.” Palardy believed that, if he gave up
his union presidency, it would increase his chances to receive
an official promotion to captain.
       In October 2011, Gordon retained a consultant to study
the police department’s “rank structure and current
vacancies.” Gordon admitted that the study “could have”
resulted in the rank of captain being eliminated. However,
the consultant recommended that the department retain the
captain rank and fill the existing vacancies in that position.
To that end, Gordon promoted Palardy to captain in February
2012—according to Palardy, “out of desperation.”

       Chief Weber was scheduled to retire in April 2015. In
the summer of 2013, Palardy was offered a part-time position
as Security Coordinator for the Township’s Board of
Education. He says he “saw the writing on the wall that he
would never become chief,” so he decided to retire from the
police department and accept the school board’s job offer.
Beginning on September 1, 2013, Palardy was on terminal
leave, and he retired effective February 1, 2014.

        Palardy then filed suit against the Township and
Gordon. His amended complaint asserted eight claims. The
district court granted Defendants’ motion for judgment on the
pleadings as to five of the eight counts, but allowed his state
and federal constitutional free speech and association claims
to proceed to discovery. Defendants then moved for
summary judgment on Palardy’s remaining claims.

       The court granted Defendants’ motion, holding
Palardy’s union-related activity was not constitutionally
protected. Analyzing his speech and association claims
together, the court concluded Palardy neither acted as a
private citizen nor spoke out on a matter of public concern, as




                              5
required by Garcetti v. Ceballos, 547 U.S. 410 (2006). This
appeal followed.
                              II.

        This Court “exercise[s] plenary review over a grant of
summary judgment and appl[ies] the same standard the
district court applies.” Migliaro v. Fid. Nat’l Indem. Ins. Co.,
880 F.3d 660, 664 n.6 (3d Cir. 2018) (citation omitted).
“Summary judgment is appropriate when there is no genuine
issue of material fact and the movant is entitled to judgment
as a matter of law.” Id. (citing Fed. R. Civ. P. 56(a)).

       The Free Speech Clause contained within the New
Jersey Constitution “is generally interpreted as co-extensive
with the First Amendment,” so the analysis of Palardy’s state
free speech claim is identical to its federal counterpart. Twp.
of Pennsawaken v. Schad, 733 A.2d 1159, 1169 (N.J. 1999).

                              III.

                              A.

       To prevail on a § 1983 First Amendment retaliation
claim, the plaintiff must prove that (1) he engaged in
“constitutionally protected conduct,” (2) the defendant
engaged in “retaliatory action sufficient to deter a person of
ordinary firmness from exercising his constitutional rights,”
and (3) “a causal link [existed] between the constitutionally
protected conduct and the retaliatory action.” Thomas v.
Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citation
omitted). Here, the District Court held that Palardy’s First
Amendment claims faltered at the first step because he failed
to show that his association with, and speech on behalf of, the
police officers’ union was protected conduct.




                               6
        Not all First Amendment activity is constitutionally
protected in the public workplace. “When a citizen enters
government service, the citizen by necessity must accept
certain limitations on his or her freedom.” Garcetti, 547 U.S.
at 418 (citation omitted). Insofar as workplace speech is
concerned, the Supreme Court has long held that public
employees only receive First Amendment protection from
retaliation in the workplace when they speak out on a matter
of public concern and their interest in speaking outweighs the
government’s interest in promoting workplace efficiency and
avoiding disruption. See Connick v. Myers, 461 U.S. 138,
147 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568
(1968). In Garcetti, the Court added a further wrinkle to its
workplace speech jurisprudence, holding that “when 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.” Garcetti,
547 U.S. at 421. Following Garcetti, then, “[a] public
employee’s statement is protected activity when (1) in
making it, the employee spoke as a citizen, (2) the statement
involved a matter of public concern, and (3) the government
employer did not have ‘an adequate justification for treating
the employee differently from any other member of the
general public.’” Hill v. Borough of Kutztown, 455 F.3d 255,
241-42 (3d Cir. 2006) (quoting Garcetti, 547 U.S. at 418).
        Although Pickering, Connick, and Garcetti were cases
about speech, some circuits apply the same rubric to cases
involving the associational rights of public employees. This
is especially true when an employee’s freedom of association
claim “implicate[s] associational rights in essentially the same
way and to the same degree” as his free speech claim.
Sanguigni v. Pittsburg Bd. of Pub. Educ., 968 F.2d 393, 400
(3d Cir. 1992) (“We hold . . . that Connick governs [the
plaintiff’s] freedom of association claim because that claim is




                               7
based on speech that does not implicate associational rights to
any significantly greater degree than the employee speech at
issue in Connick.”).

        Palardy’s case, however, is different. He claims, in
part, that Gordon retaliated against him simply because of his
union membership, and not because of his advocacy on any
particular issue. Indeed, the comments he alleges Gordon
made to other officers—for instance, Palardy was disqualified
from becoming chief “because of his union affiliation”—
evince hostility toward Palardy solely because of his union
membership.        Palardy’s complaint presents a pure
associational claim, so the district court should have analyzed
Palardy’s speech and association claims separately.

                              B.

      Taking Palardy’s freedom of association claim, we
must first determine whether Palardy engaged in protected
conduct. This question, in turn, depends upon whether
Connick and Garcetti apply to pure associational claims like
Palardy’s.

       The circuits are split on whether Connick’s public-
concern requirement applies to associational claims, and we
have not yet taken a position. See Sanguigni, 968 F.2d at
400. The Second, Fourth, Sixth, and Seventh Circuits apply
the public concern requirement to public employee
association claims. See Cobb v. Pozzi, 363 F.3d 89, 107 (2d
Cir. 2004); Edwards v. City of Goldsboro, 178 F.3d 231, 249-
50 (4th Cir. 1999); Boals v. Gray, 775 F.2d 686, 692 (6th Cir.
1985); Klug v. Chi. Sch. Reform Bd. of Trs., 197 F.3d 853,
857 (7th Cir. 1999). The reasoning of courts adopting this
position is exemplified by the Second Circuit’s decision in
Cobb. There, the court wrote that, although in Connick “it
was the plaintiff’s speech that was under examination, the




                              8
Court’s concern over the proper balance of the efficient
functioning of the government and the First Amendment
rights of public employees extended more generally to all
forms of First Amendment expression, including associational
activity.” Cobb, 363 F.3d at 104. “Because the right of
association is derivative of the First Amendment rights of free
speech and peaceful assembly,” the Second Circuit reasoned,
“it would be anomalous to exempt it from Connick’s public
concern requirement and thereby accord it an elevated status
among First Amendment freedoms.” Id. at 105. The Sixth
Circuit in Boals also noted that although Connick and
Pickering were speech cases, they were in turn based upon
freedom of association cases. Boals, 775 F.2d at 692.

       On the other side of the split, the Fifth and Eleventh
Circuits hold the public concern requirement does not apply
to associational claims. See Boddie v. City of Columbus, 989
F.2d 745, 749 (5th Cir. 1993); Hatcher v. Bd. of Pub. Educ. &
Orphanage, 809 F.2d 1546, 1558 (11th Cir. 1987). The Fifth
Circuit suggests that no additional proof of public concern is
necessary because the union activity of public employees “is
not solely personal and is inevitably of public concern.”
Boddie, 989 F.2d at 750 (emphasis added). And the Eleventh
Circuit in Hatcher fell back upon the Supreme Court’s
decision in NAACP v. Alabama, “in which Justice Harlan
wrote for the Court: ‘it is immaterial whether the beliefs
sought to be advanced by association pertain to political,
economic, religious or cultural matters . . . [,] state action
which may have the effect of curtailing the freedom to
associate is subject to the closest scrutiny.’” Hatcher, 809
F.2d at 1558 (quoting NAACP v. Alabama, 357 U.S 449, 460-
61 (1958)). Connick, according to the Eleventh Circuit, did
not mark a retreat from that position. Id.

      The Ninth and Tenth Circuits both take unique
approaches. The Ninth Circuit applies the public concern




                              9
requirement to “hybrid” free speech and association claims,
but it has not decided the question for freestanding
association claims. See Hudson v. Craven, 403 F.3d 691, 698
(9th Cir. 2005). The Tenth Circuit generally requires the
public concern requirement for freedom of association claims,
see Merrifield v. Bd. of Cty. Comm’rs, 654 F.3d 1073, 1083-
84 (10th Cir. 2011), but has rejected the requirement in “the
specific context of public-employee labor unions,” id. at 1084
(citing Shrum v. City of Coweta, 449 F.3d 1132, 1138 (10th
Cir. 2006)).

       In this specific context—an associational claim arising
from a public employee’s union affiliation—the minority
position followed by the Fifth Circuit is the better one. Even
courts in the majority recognize that at least some union
speech and activity touch upon matters of public concern.
See, e.g., Boals, 775 F.2d at 693. It follows, then, that a
public employee’s membership in a union might also be a
matter of public concern. But how are courts to distinguish
between union membership that implicates a public concern,
and union membership that does not?

       Where speech is concerned, the test is easy: “Personal
grievances, complaints about conditions of employment, or
expressions about other matters of personal interest . . . are
matters more immediately concerned with the self-interest of
the speaker as employee.”        Id. (quoting Campbell v.
Galloway, 483 F.3d 258, 267 (4th Cir. 2007)). But union-
related speech is different than mere union membership.
Because labor unions advocate for their employees on a wide
range of issues, the number of possible subjects for union-
related speech is similarly wide-ranging. Conversely, union
membership is a dichotomy—either an employee is a union
member, or he is not. As Seventh Circuit Judge Cudahy
recognized, the test used to determine whether speech




                             10
implicates a matter of public concern does not square with
this dichotomy:
      [T]he Pickering/Connick test is cumbersome in
      the context of a pure association claim. Under
      Connick, whether an employee’s speech touches
      on a matter of public concern is determined by
      an analysis of the “content, form, and context of
      a given statement.” Connick v. Myers, 461 U.S.
      138, 147-48, (1983). This analysis is applied
      easily to the hybrid cases cited by the majority.
      In Griffin v. Thomas, for instance, an assistant
      principal alleged that her employer retaliated
      against her for filing a grievance through the
      Chicago Teachers Union. See 929 F.2d 1210,
      1210 (7th Cir. 1991). To determine whether the
      plaintiff's activity touched on a public concern,
      the court was able to review the substance of
      her grievance. See id. at 1215. But how does
      one neatly apply the “content, form, and
      context” analysis to a [pure associational] claim
      ...?

Balton v. City of Milwaukee, 133 F.3d 1036, 1041 (7th Cir.
1998) (Cudahy, J., concurring).

       Here, the Township does not provide any justiciable
basis for us to separate the wheat from the chaff—to
determine which union association is worthy of First
Amendment protection and which is not. By holding that
mere membership in a public union is always a matter of
public concern, the Fifth Circuit’s approach avoids this
problem. See Boddie, 989 F.2d at 750. Connick’s public-
concern requirement thus stands as no obstacle to Palardy’s
associational claim.




                             11
       There is less authority regarding whether Garcetti’s
private-citizen requirement applies to pure associational
claims. The Second Circuit has stated that the issue is
unclear. Lynch v. Ackley, 811 F.3d 569, 583 n.15 (2d Cir.
2016).
        As with Connick’s public-concern requirement, it does
not make much sense to apply Garcetti’s private-citizen
requirement to pure associational claims based on union
membership. The touchstone of Garcetti is whether the
public employee was “mak[ing] statements pursuant to [his]
official duties.” Garcetti, 547 U.S. at 421. By the plain
language of the Court’s opinion, then, Garcetti applies to
speech, not association.

       Moreover, it is hard to imagine a situation where a
public employee’s membership in a union would be one of
his “official duties.” Garcetti, 547 U.S. at 421. This is
especially true in light of Janus v. American Federation of
State, County, and Municipal Employees, 138 S. Ct. 2448,
2460 (2018), where the Supreme Court recently held that
public employees who choose not to join their union cannot
be compelled to pay agency fees to offset the costs of the
union’s collective bargaining efforts.

       Labor unions, by their very nature, exist to protect the
interests of the employees on whose behalf they bargain; job
duties derive from the needs of the employer. And in this
specific case, there is no evidence that Palardy’s membership
in the police officers’ union was one of his job duties. To the
contrary, he alleges he resigned his union presidency because
he thought it would help further his career. For these reasons,
we decline to apply Garcetti’s private-citizen test to Palardy’s
freedom of association claim.




                              12
        Having established that Connick and Garcetti do not
bar Palardy’s associational claim, it becomes clear that his
union membership is worthy of constitutional protection.
Prior to those cases, the Supreme Court noted that a public
employee possesses a First Amendment right to associate
with a union. See Smith v. Ark. State Highway Emp., 441
U.S. 463, 465 (1979). Palardy was a union member and
leader, and he brought forth at least some evidence suggesting
Gordon harbored animosity toward him because of his union
affiliation. The district court therefore erred by holding as a
matter of law that Palardy did not establish the first element
of his First Amendment retaliation claim—constitutionally-
protected conduct.

        Because it found Palardy could not prevail on the first
element, the court did not consider whether he created a
genuine issue of material fact on the other two elements of his
associational claim—whether Defendants engaged in
“retaliatory action sufficient to deter a person of ordinary
firmness from exercising his constitutional rights,” and
whether “a causal link [existed] between the constitutionally
protected conduct and the retaliatory action.” Thomas, 463
F.3d at 296 (citation omitted). Defendants do not address
these elements on appeal, and we do not believe the evidence
is so one-sided as to require summary judgment in their favor.
Thus, we remand to the district court to consider the
remaining two elements of Palardy’s associational claim.
                              C.

       Compared to his associational claim, the analysis of
Palardy’s speech claim is much more straightforward. As
noted earlier, we have dismissed associational claims that we
viewed as co-extensive with the plaintiff’s free speech claim.
See Sanguigni, 968 F.2d at 400. Here, the opposite is true—
Palardy’s free speech claim is co-extensive with his




                              13
associational claim. He does not allege that Gordon retaliated
against him because of his speech or advocacy on any
particular issue. He simply claims that Gordon prevented him
from becoming chief because he was a union man. Because
Palardy did not adequately plead a freestanding speech claim,
Defendants are entitled to summary judgment on that claim.

                             IV.

       For the foregoing reasons, we affirm in part, reverse in
part, and remand for further proceedings consistent with this
opinion.




                              14
