                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 17-2061


                                   JOSEPH MRAZEK

                                            v.

                        STAFFORD TOWNSHIP;
    POLICE CHIEF JOSEPH GIBERSON, In his Individual and Official Capacities;
            JOHN DOES 1-5, Individually and in their official capacity

                                Police Chief Joseph Giberson,
                                                        Appellant



                     On Appeal from the United States District Court
                              for the District of New Jersey
                          (District Court No.: 3-13-cv-01091)
                      District Judge: Honorable Freda L. Wolfson


                      Submitted under Third Circuit L.A.R. 34.1(a)
                                on November 15, 2017


           Before: CHAGARES, VANASKIE, and FUENTES Circuit Judges

                             (Opinion filed: August 1, 2018)



                                      O P I N I O N*


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FUENTES, Circuit Judge:

       Defendant-Appellant Joseph Giberson, the now-retired Police Chief of Stafford

Township, presided over the promotion process for candidates for promotion to police

sergeant. Among these candidates was Plaintiff-Appellee Joseph Mrazek, who also

served as president of the police union. Mrazek sued Giberson, among others, for

retaliating against him in the promotion process for his union affiliation.

       Denying summary judgment on the issue of qualified immunity, the District Court

held that Mrazek’s right to be free from a public official “negatively influencing a police

promotion process solely because of [his] union-related activities (resulting in his being

passed over for a promotion)” was clearly established.1 For the following reasons, we

will affirm.

                                             I.

       Because we write only for the parties, we include only those facts most necessary

to the disposition of the case.

       Candidates for promotion to sergeant, among other ranks, were evaluated in a two-

part process that included both objective and subjective components. Based on this

process, a certain portion of candidates were ranked and were promoted in that order as

openings arose. In total, the objective component of the evaluation comprised 80 percent

of a candidate’s evaluation and the subjective component comprised 20 percent. The



1
 Mrazek v. Stafford Township, et al.., No. CV 13-1091, 2017 WL 1788655, at *4 (D.N.J.
May 5, 2017) (hereinafter Mrazek II).
                                              2
subjective component contained two equally weighted scores: 10 percent of the

candidate’s evaluation derived from an evaluation conducted by Giberson alone and the

remaining 10 percent derived from the “Supervisory Roundtable,” a discussion of the

department’s supervisory employees that results in a ranking collectively arrived at by the

participants. Giberson was among the participants in the Supervisory Roundtable.

         Mrazek, a police officer and President of the local Police Benevolent Association

Union, was a candidate for the 2012/2013 promotional exam for the rank of sergeant.

The promotion exam consisted of two components, Phase I and Phase II. Both phases

included parts of the objective component, but only Phase II contained the subjective

component described above. Phase I consisted of a multiple choice exam that was

independently graded by the International Association of Chiefs of Police. It also

included half of a candidate’s “seniority score.” Only the top “50 percentile” of officers

who completed Phase I could progress to Phase II, which included assessment of oral and

written responses as well as the subjective component of the exam.2 In part due to

ranking last in the subjective component of the exam, Mrazek was ranked seventh of

eleven in the promotion list and, as of the briefing of this case, was not promoted.

         The District Court held that there were disputed issues of material fact as to

Giberson’s “substantial motivating factor in scoring Mrazek last during the Roundtable

and the Chief’s Review phases of the Exam.”3 All we must determine is whether

Mrazek’s right was clearly established: whether, as the District Court phrased it: “a


2
    A513.
3
    Mrazek I, 2016 WL 5417197, at *15.
                                               3
reasonable public official could have recognized that negatively influencing a police

promotion process solely because of an officer candidate’s union related activities

(resulting in his being passed over for a promotion) would violate the officer’s First

Amendment freedom to associate rights” in January 2013, when Giberson’s conduct

occurred.4

                                              II.

       The District Court had jurisdiction over this action under 28 U.S.C. § 1331 and 28

U.S.C. § 1343. We have appellate jurisdiction under 28 U.S.C. § 1291 and the collateral

order doctrine.

       The collateral order doctrine is an exception to appellate review’s usual

requirement of a final decision. We will exercise jurisdiction over a non-final order that

“[1] conclusively determine[s] the disputed question, [2] resolve[s] an important issue

completely separate from the merits of the action, and [3] [is] effectively unreviewable on

appeal from a final judgment.”5 “[A] denial of qualified immunity that turns on an issue

of law—rather than a factual dispute—falls within the collateral order doctrine.”6

       Here, the only issue before us is whether Mrazek’s right as recognized by the

District Court was clearly established at the time of Giberson’s disputed conduct. This

question is purely legal, and the collateral order doctrine applies.




4
  Mrazek II, 2017 WL 1788655, at *4.
5
  Mammaro v. N.J. Div. of Child Prot. and Permanency, 814 F.3d 164, 168 (3d Cir.
2016) (quoting Will v. Hallock, 546 U.S. 345, 349 (2006)).
6
  Mammaro, 814 F.3d at 168 (quoting Doe v. Groody, 361 F.3d 232, 237 (3d Cir. 2004)).
                                              4
                                              III.

       We exercise plenary review over a grant of summary judgment.7 We apply the

same standard of the District Court,8 and draw all reasonable inferences from the record

in favor of the non-moving party.9 We also exercise plenary review of the legal grounds

underpinning a claim of qualified immunity.10

                                              IV.

       Qualified immunity is an affirmative defense designed to “protect government

officials from insubstantial claims in order to ‘shield officials from harassment,

distraction, and liability when they perform their duties reasonably.’”11 “When properly

applied, it protects ‘all but the plainly incompetent or those who knowingly violate the

law.’”12 It prohibits a plaintiff from recovering money damages against a federal or state

official unless a plaintiff shows “(1) that the official violated a statutory or constitutional

right, and (2) that the right was ‘clearly established’ at the time of the challenged

conduct.”13 Only the second prong of this analysis is before us here.

       For a right to be clearly established, “there must be sufficient precedent at the time

of action, factually similar to the plaintiff’s allegations, to put defendants on notice that




7
  Karns v. Shanahan, 879 F.3d 504, 512 (3d Cir. 2018).
8
  Id.
9
  Goldenstein v. Repossessors, Inc., 815 F.3d 142, 146 (3d Cir. 2016).
10
   Karns, 879 F.3d at 512.
11
   Mammaro, 814 F.3d at 168 (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
12
   Ashcroft v. Al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986)).
13
   Al-Kidd, 563 U.S. at 735 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
                                               5
his or her conduct is constitutionally prohibited.”14 The contours of the right must be

“sufficiently clear that ‘a reasonable officer would understand that what he is doing

violates that right.’”15 The precise conduct at issue need not previously be held to be

unlawful provided that the contours of the right are sufficiently clear.16 The Supreme

Court has made clear that “officials can still be on notice that their conduct violates

established law even in novel factual circumstances.”17

        The District Court correctly concluded that Mrazek’s right to be free of a public

official negatively influencing a police promotion process solely because of Mrazek’s

union-related activities, resulting in his non-promotion, was clearly established in January

2013.

        That the rights afforded by the First Amendment protect the pursuit of affiliation

with a union is clearly established in law.18 Similarly, the First Amendment protects the

right of associations, such as unions, “to engage in advocacy on behalf of their




14
   Mammaro, 814 F.3d at 169 (quoting McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir.
2001)).
15
   Kedra v. Schroeter, 876 F.3d 424, 449–50 (3d Cir. 2017) (quoting Rivas v. City of
Passaic, 365 F.3d 181, 200 (3d Cir. 2004)).
16
   Kedra, 876 F.3d at 450 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
17
   Hope v. Pelzer, 536 U.S. 730, 741 (2002).
18
   See Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968) (“In sum, we hold that, in a
case such as this, absent proof of false statements knowingly or recklessly made by him,
a teacher’s exercise of his right to speak on issues of public importance may not furnish
the basis for his dismissal from public employment.”); Shelton v. Tucker, 364 U.S. 479,
485–86 (1960) (“It is not disputed that to compel a teacher to disclose his every
associational tie is to impair that teacher's right of free association, a right closely allied
to freedom of speech and a right which, like free speech, lies at the foundation of a free
society.”).
                                              6
members.”19 “The government is prohibited from infringing upon these guarantees either

by a general prohibition against certain forms of advocacy . . . or by imposing sanctions

for the expression of particular views it opposes.”20

       For a quarter-century prior to the conduct in dispute, this Court has held that when

public employers take adverse employment actions such as “retaliatory discharges,

transfers, letters of reprimand, . . . demotions accompanied by transfers, . . . [and]

retaliatory demotions” against employees, those public officials violate the clearly

established rights of their employees.21

       It is equally established by Supreme Court precedent that even though a public

employee has no legal entitlement to promotion, the government “may not deny a benefit

to a person on a basis that infringes his constitutionally protected interests—especially,

his interest in freedom of speech.”22 It held in Rutan v. Republican Party of Illinois that

“promotions, transfers, and recalls after layoffs based on political affiliation or support

are an impermissible infringement on the First Amendment rights of public employees.”23

Although Rutan dealt with partisan political affiliation and not union affiliation, the

clearly established right to associate and affiliate with a union derives from the same

source as the First Amendment protection of the right to affiliate with a union. The



19
   Smith v. Ark. State Highway Emp., Local 1315, 441 U.S. 463, 464 (1979) (citing Nat’l
Assoc. for Advancement of Colored People v. Button, 371 U.S. 415 (1963)).
20
   Smith, 441 U.S. at 464 (citations omitted).
21
   Bennis v. Gable, 823 F.2d 723, 733 (3d Cir. 1987).
22
   Rutan v. Republican Party of Ill., 497 U.S. 62, 72 (1990) (quoting Speiser v. Randall,
357 U.S. 513, 526 (1958)).
23
   Rutan, 497 U.S. at 75.
                                              7
following propositions of law are thus clearly established: union affiliation is protected

from infringement under the First Amendment; and a retaliatory decision not to promote

an employee on a protected basis can constitute infringement of First Amendment rights.

       These well-established precedents are supported by holdings from the Courts of

Appeals.24 McGreevey v. Stroup, in particular, is instructive: in that case, this Court held

that giving an employee an unsatisfactory employment rating violated the employee’s

clearly established First Amendment right, if it was proven that the rating was motivated

by retaliation for speaking on a matter of public concern.25 Although the employee was

eventually terminated, the Court’s holding concerned the rating alone, and left it to a jury

to determine “whether Plaintiff’s constitutionally protected activity was a substantial or

motivating factor in Defendant’s decision [to give the low rating].”26

       The right at issue here synthesizes the precedents of McGreevey and Rutan:

Mrazek claims that Giberson’s negative employment rating at a critical juncture led to

Mrazek being passed over for promotion. In light of these clearly established precedents,

a reasonable public official could—and should—have recognized that negatively

influencing a police promotion process solely because of an officer candidate’s union-

related activities (resulting in his being passed over for a promotion) would violate the




24
   See, e.g., McGreevey v. Stroup, 413 F.3d 359 (3d Cir. 2005) (holding that retaliatory
unsatisfactory employment rating infringed on employee’s First Amendment rights);
Shrum v. City of Coweta, Okla., 449 F.3d 1132 (10th Cir. 2006) (holding that retaliatory
changes in work schedule infringed on employee’s First Amendment rights).
25
   McGreevey, 413 F.3d at 366–67.
26
   Id. at 365–66.
                                             8
officer’s First Amendment freedom to associate rights in January 2013, when Giberson’s

conduct occurred.27

                                              V.

         For the foregoing reasons, we will affirm the District Court.




27
     See Mrazek II, 2017 WL 1788655, at *4.
                                               9
