Sisinia Pro v. Ronald Donatucci. Ronald Donatucci, Register of Wills

opinion. with this ceedings not inconsistent year, respect the 1985 tax we will

With Tax Each Court.

affirm the decision own costs.

party to bear its

Sisinia PRO

Ronald DONATUCCI. Donatucci, Register

Ronald Wills, Appellant.

No. 95-1803. Appeals,

United States Court

Third Circuit.

Argued March 1996. April

Decided Eiehert, Deputy City

Michael F. Chief So- Hix, Deputy City (argued), E. Jane leitor Dept., I. AND Solicitor, City Philadelphia Law FACTUAL BACKGROUND PA, Appellant. HISTORY Philadelphia, PROCEDURAL deLone, (argued), Philadel- Jr. H. Francis Background A. Factual PA, Appellee. phia, Register became Donatucci Wills SLOVITER, Judge, and Chief Before: Pro, Philadelphia in'1979 and who ROTH, Judges. Circuit GREENBERG practice, him in private had been with his law secretary. him to be his Pro came with OPINION year position worked at that for one and then moved to the office of the Clerk of the Or- GREENBERG, Judge. Circuit Orphans’ phans’ Court. The offices of the in the office of Appellee Pro worked Sisinia overlap in Register and the of Wills Court Court, Orphans’ under the the Clerk staff, and therefore Pro their functions Donatucci, Regis direction of Ronald general under Donatucci’s control even af- remained County. In Octo Philadelphia ter of Wills of jobs. changed ter she subpoenaed Pro to wife ber Donatucci’s against subpoe- Donatuc In wife testify in her divorce action October Donatucci’s pursuant testify to the sub in her divorce action duly appeared naed Pro to ci. Pro testify. duly pur- against appeared Dona- Donatucci. Pro was not called poena, but subpoena, Pro there. called present in court and saw suant to the but was not tueei was thereafter, testify. subject expected Pro a let Shortly Donatucci sent of her testimo- employment. ny, though, alleged extramari- terminating her concerned ter involving A few weeks tal affair Donatucci. brought against Donatucci under Pro suit pro- at the after Donatucci saw Pro divorce 1983, claiming § that he fired her 42 U.S.C. employee ceedings, he hired a new to work activity protected for in retaliation Orphan’s office of the Clerk of the Amendment, is, appearance as her employee’s assignments and that included proceeding. potential witness at the divorce performed. Shortly that Pro thereaf- work Donatucci’s motion court denied The district ter, 3, 1994, January Pro received a short summary judgment in his individual ca for Donatucci, which informed her: letter predicated on claim pacity, which ap immunity. Donatucci then qualified department part on-going of an reor- As jurisdiction had pealed. The district court Legal ganization, your position as Secre- §§ and 1343 and we under 28 U.S.C. Monday, tary as of II will be eliminated jurisdiction 28 U.S.C. have under 17,1994. January upon collateral order doctrine. based many years your appreciated haveWe 511, 530, 105 Forsyth, 472 U.S. Mitchell you I in the future. service and wish well (1985); 2806, 2817, 86 L.Ed.2d S.Ct. (E.D.Pa. Donatucci, 94-6001, 2at Pro v. No. Philadelphia Litig., 49 F.3d City re — that Donatucci’s Sept.6, Pro believed denied, U.S. -, Cir.), cert. pretext was a explanation for her termination (1995). 176, 133L.Ed.2d 116 ready she was and that he fired her because court’s review of the district Our proceeding. his divorce summary judgment denial of the motion Reno, Bieregu v. 59 F.3d plenary. History B. Procedural (3d Cir.1995); City Philadel In re Donatucci, Moreover, brought against suit we phia Litig., 49 F.3d at 960. in retaliation for alleging that he fired her quali plenary review over its denial First Amendment— activity protected by the immunity, of law. In re as it is an issue fied is, appearance potential witness her Philadelphia Litig., 49 F.3d at 960. City of Although proceeding. course, the divorce all factual doubts we will resolve Of complaint ambiguous, the district all reasonable inferences favor and draw in both his that she sued Donatucci Pro, nonmoving party. Bieregu, held v. Do capacities. Pro and official individual at 1449. (E.D.Pa. natucci, 94-6001, Sept.6, balancing important policy compen “the No. 1995).1 14, 1995, sating deprivation Donatucci moved individuals for of their July On capacity summary judgment rights against protect in Ms official ‘the need to officials impression that he had (apparently required under the who are to exercise their discretion capacity), encourag in Ms individual not been sued and the related interest essence, that Pro could not state arguing, vigorous of official authori exercise she had not testified at the ty.’ a claim because City Philadelphia Litig., In re 6, 1995, September proceeding. On (quoting Fitzgerald, divorce F.3d at 960 Harlow v. motion, holding demed Donatucci’s 2727, 2732, the court practical distinction between (1982)). balance, can see no “[w]e maldng public employee’s on the basis of retaliation recently in In re Phila noted of testimony and the retaliation that Pro actual Litig., recognize delphia “courts that officials 94-6001, at alleges.” Pro v. No. swiftly firmly often must ‘act at the risk Donatucci 1995) (order (E.D.Pa. Sept.6, denying 4 n. 3 that action deferred will be futile consti ” motion). summary judgment defendant’s tute virtual abdication of office.’ Id. at 961 filed a motion for reconsideration Rhodes, 232, Donatueei (quoting Scheuer v. 416 U.S. grant the order as to sum 246, and to amend so 1683, 1691, S.Ct. L.Ed.2d mary judgment to Mm in ca (1974)). Ms individual Public officials thus are “sMelded qualified immumty.2 pacity on the basis of liability damages insofar as civil Sep court demed on The district the motion clearly conduct their does not violate estab 18,1995, tember and Donatucci filed a notice statutory rights lished or constitutional appeal day. on the same Donatucci con person wMch a would reasonable denying tends that the district court erred Fitzgerald, known.” Harlow v. at summary judgment quali him on the basis 818, 102 at 2738. S.Ct. While this case does immumty. fied not involve the concerns about swift action to City wMch we alluded in In re Philadel

II. DISCUSSION phia Litig., implicates nevertheless the case principles qualified immumty. Qualified Immunity A. qualified immumty The focus of is on determination of whether a “objective qualified legal official is entitled to immuM reasonableness” of the

ty rights against in a civil action him involves actions taken official. Donatucci, 94-6001, answer, repeats argu 1. See Pro v. at 1 n. No. an amended and she decided, (E.D.Pa. 1995): appeal. Sept.18, 1995 WL 552980 ment on this however, The district court question that because the was one of that, recognize normally, We a court should law, require it "[did] a more elaborate record qualified immunity determine the issue well [had],” already [it] than and that it therefore trial, discovery, in advance of and even before reject discovery Pro's demand for on the possible. Siegert Gilley, if v. 500 U.S. 226 defense and would consider it on the merits. Pro [233-34], 1789, 1793-94, 111 S.Ct. Donatucci, 94-6001, 1-2, No. 1995 WL however, (1991). Here, L.Ed.2d 277 because (E.D.Pa. 1995). Sept.18, pre Our court ambiguity complaint, only of an in Pro's viously position has taken the that whether an ago became clear two that she had sued weeks pleaded affirmative defense that must be in the Donatueei in both his individual and official depend answer is waived will whether the Donatucci, capacities. See Pro v. No. 94 - 6001 pragmatically defense was raised "at a sufficient (E.D.Pa. 6, 1995) (Order September interpret plaintiff prejudiced time” in the against complaint to assert a claim Godsil, ability respond. Charpentier See capacity). Donatueei his individual (3d case, Cir.1991). In this Dona us, argument At oral before counsel for Pro general tucci made the statement in his answer suing stated that she Donatueei in his asserting that he was "all defenses available un capacity, official and that she therefore seeks explicitly der 42 U.S.C. and then 1983” raised only damages posi- and not reinstatement to her qualified immunity defense in his motion for event, tion. In we would address Dona- summary judgment, just day which he filed one qualified immunity opin- tucci’s claim in this after the district court held for the first time ion. capaci Pro had sued Donatucci in his individual circumstances, ty. In we that Do these believe argued 2. Pro in the adequately district court we natucci met the standard that qualified immumty waived his to assert the have followed. We therefore that he has hold by failing qualified immunity. defense to include it in his answer or not waived the defense of 635, 639, 107 speech activity protected the First Creighton, 483 U.S. Anderson (1987). Donatucci, however, argues As Amendment. S.Ct. Siegert v. instructed Supreme Court rights not have violated Pro’s that he could Gilley, 500 U.S. First Amendment because she did under the (1991), a court before 114 L.Ed.2d engage in entitled to First immunity, qualified a claim even addresses Thus, protection. argues, he however, whether a determine it first should occurred, he since no constitutional violation a constitu alleged “a violation of plaintiff has summary judgment. was entitled to Conse- “Deciding purely ‘this all.” right at tional quently, must decide whether Pro has expeditious question permits the courts legal alleged a constitutional violation. fail the test with suits which ly to weed out rightly who claims requiring a defendant out recently As we stated Watters expensive immunity engage qualified Philadelphia, 55 F.3d 886 Cir. consuming preparation to defend time 1995), Supreme made clear Court has City Phila In re suit on its merits.’ public employees be that “it is essential that (quoting Sie Litig., 49 F.3d delphia freely questions pub speak out able gert, 500 U.S. retaliatory without fear of dis lic concern Further, in In re as we reiterated (citing Pickering v. missal.” Id. at 891 Litig., a court to Philadelphia for City of Educ., 563, 572, 88 391 U.S. S.Ct. Board of official, right liability upon an the impose “ (1968)). 1731, 1736, L.Ed.2d 811 a line “clearly ‘must have been allegedly violated 1960’s, beginning in the the Court of cases particularized, in a more established” government developed principle the that the relevant, at 961 sense.’ Id. more hence public employment on a “cannot condition Creighton, 483 at Anderson v. U.S. (quoting employee’s 640, 107 infringes “The contours of the constitu at basis S.Ct. sufficiently clear that a reason right must be in tionally protected interest freedom ex that what he is officialwould understand able Myers, 461 pression.” Connick v. right.” Anderson doing violates that 1684, 1687, 75 L.Ed.2d 708 103 S.Ct. 640, 107 at S.Ct. at 3039. Creighton, 483 U.S. (1983). Therefore, “[¡judicial vigilance is re case, employers Therefore, public do quired in we must consider to ensure this particular constitutional authority whether discourse on use their to silence asserted, all, clearly estab if it existed at simply public concern because matters Acier Donatucci fired Pro. lished at the time employ of the they disagree the content Cir.1994) (3d Cloutier, F.3d no v. Watters, (citing speech.” 55 F.3d ee’s (in banc). City in In re As we summarized McPherson, 378, 384, 107 Rankin v. 483 U.S. Litig.: Philadelphia (1987)). 2891, 2896, 97 L.Ed.2d 315 S.Ct. clearly when If the law is not established acts, qualified official he is entitled an hand, the Court has the other On reasonably immunity ‘could not because he interests as an recognized “the State has legal anticipate subsequent expected to be of its em regulating in employer speech fairly said developments, nor could he it significantly from those ployees that differ forbade conduct to “know” that the law regulation of the in possesses connection ... On previously identified as unlawful.’ citizenry general.” in Picker speech of the hand, if the law was established the other at 1734. ing, may quali- clearly, still obtain the official speech an em determining whether ‘extraordinary if immunity he claims fied we protection, ployee constitutional deserves prove that he nei- and can circumstances between the must strike “balance therefore of the have known ther knew nor should citizen, in [employee], as interests legal standard.’ relevant public concern commenting upon matters of omitted). (citations Id. State, employer, anas interest of the and the Rights B. Pro’s First public efficiency of the ser promoting in through employees.” its performs vices claim is that Pro’s section 1983 568, 88 at 1734-35. in Id. at S.Ct. engaged against her when she retaliated Watters, analyze by public agency allegedly in noted reaction to As employee’s claim of retaliation for en behavior. public employee’s activity gaging protected under a three- 461 U.S. at 103 S.Ct. at 1690. The First, step process. 55 F.3d public one, inquiry legal concern is a to be activity ques plaintiff must show “content, by determined reference to the (citing Id. Holder v. protected. tion was form, statement, given and context of a (3d Allentown, 188, 194 Cir.1993); revealed the whole record.” Id. at 147-48 Albanese, Czurlanis v. & n. 103 S.Ct. at 1690 & n. 7. We Cir.1983)). protection, To deserve “the analysis discussed Holder. speech be on a matter of con must speech may help The content of the cern, employee’s expres and the interest relating characterize it as to a matter of outweighed must not sion on this matter political social community or concern of the any injury could cause to the if, example, speaker ‘bring seeks to employer pro interest of the state as light potential wrongdoing actual or or moting efficiency services it part gov- breach of trust’ on the performs through employees.” (citing Id. ernment officials. The form and context of — Churchill, U.S. -, -, Waters speech may help to characterize it as (1994) 1878, 1884, 128 (plu relating to a matter of social political rality opinion)). if, community example, concern to the speech activity the forum where the takes Second, plaintiff must show that the place merely confined to the activity protected awas substantial or moti speaker employed. office where the vating alleged retaliatory factor action. (citations omitted). 987 F.2d at 195 A con (citing Healthy City Mt. Sch. Dist. Bd. of private clusion that concerns rath Doyle, Educ. v. 429 97 (1977)); public unnecessary er than matter makes it Finally, 50 L.Ed.2d 471 proceed employ to a consideration of the employer can that it establish would have Connick, 146, 103 er’s interests. 461 U.S. at employment regard taken the adverse action S.Ct. at 1689-90. employee less of engaged whether had protected conduct. Id. These latter two case, In this the district court held factual, questions pur are and therefore for potential speech was a matter of poses appeal of this we resolve them Pro’s public content, concern not because of its Thus, favor. the threshold issue before us in which testimony would have been about a determining whether Donatucci was entitled matter, purely private but because of its summary judgment is whether Pro’s activ is, potential form and context —that “sworn and, ity so, if was on a matter of testimony adjudicatory body.” before an public concern. Donatucci, (E.D.Pa. 94-6001, Pro v. No. at 3 1995) Sept.6, McKellar, (quoting Freeman v. “An employee’s speech addresses 733, (E.D.Pa.1992)). F.Supp. 795 739 The public a matter of concern when can be by court relied on a line of cases decided ‘fairly relating considered as matter of Appeals Court of for the Fifth Circuit hold political, social, or other concern to the com public employee’s that a truthful testimo ” Holder, munity.’ (quoting 987 F.2d at 195 ny protection receives regard constitutional Connick, 1690). 146, 461 U.S. at 103 S.Ct. at Donatucci, less of its content. See Pro v. Connick, Supreme As the held 94-6001, 3-4, No. 1995 WL 552980 principle upon is based the idea that (E.D.Pa. Sept.18, 1995) (citing Reeves v. Clai Educ., when a employee speaks County 1096, not as borne Bd. 828 F.2d upon concern, (5th Cir.1987); citizen matters of but 1100-01 Johnston v. Harris Dist., instead employee upon as an matters Flood Control 869 F.2d personal interest, (5th Cir.1989), denied, absent un- the most cert. circumstances, (1990)). usual a federal court is not 107 L.Ed.2d 738 appropriate forum which to review also relied on two district court personnel the wisdom of a decision taken circuit decisions within this that have fol- Appeals Appeals line of cases of the Court of for the approach the Court lowed court, (citing Free Id. at Fifth Circuit. 19. That he Fifth Circuit. Id. for the 739-40) (“A McKellar, states, F.Supp. announced that its formulation consti man testimony an sworn before public employee’s tutes the “outer boundaries” of First Amend body has to be inher adjudicatory protection, been held and ment because “Pro was not protect ently testify matter of concern subpoenaed regarding any contro Amendment.”); Hoopes v. Wills,” ed versy Register in the office of (E.D.Pa.1981) Nacrelli, F.Supp. called to provide and “was not even neutral McKellar, (same) (cited in Freeman testimony regarding operation pol or the 739). note, court did F.Supp. at district Wills,” Register icies of the Office however, explicitly appeals one court protected under that Appeals adopt declined the Court has court’s formulation concern doc (citing approach, id. the Fifth Circuit’s Reeves, (citing trine. 828 F.2d at Family Dep’t & Wright v. Illinois Children court, precise As noted district (7th Cir.1994)), ervs., S issue in this case to be one of first seems empha appeals court of has that another impression, at least in this circuit. decid- importance of and form content sized case, then, we ing the must look to cases that context, (citing Mayor Arvinger id. over analogous closely before us are to the one Baltimore, Council of possible. Cir.1988)). (4th urges us to the district reverse Appeals The Court of Fifth Circuit First, correctly points decision. he court’s public employee’s concluded that a truth- has reported ease ad that it seems out adjudicatory body ful before responding to a whether the act of dresses inherently pro- a matter of public concern pro subpoena to a civil matter Reeves, by the First tected Amendment. Donatucci, No. speech. See tected plaintiff was a full-time administrator (E.D.Pa. 94-6001, at WL county system, years of school with 30 (“Donatucci that nei Sept.18, 1995) is correct 828 F.2d at school board service. 1097. The parties found a case we nor the ther sought teaching fire several assistants a wit conferring protection constitutional participated the belief that the assistants had appeared pursuant at to a trial ness who political campaign. at 1097-98. a Id. Second, testify.”). he subpoena but did part group, but re- Reeves was not of this states as follows: subpoena testify to in the assistants’ ceived subpoenaed testimony Pro was not to offer duly subsequent civil suit. Id. at 1098. She regarding practices policies of the Of- testimony, “general- appeared, and her while Rather, Register of she fice of the Wills. (i.e., ‘neutral,’ help ly plaintiffs did subpoenaed testify to Donatucci assistants) teaching factual issues. certain private proceeding purely divorce about and, days prevailed, four plaintiffs Id. The absolutely makes no claim matters. She later, superintendent county of education testimony any- have had that her would reassigned permission the board thing to do with concerns. To the position began strip to to a new Reeves contrary, she admits that she learned after “longtime perquisites.” Id. her of her subpoena to that her responded she complaint, al- filed a section 1983 Reeves purely testimony would have concerned county leging that the school and the board during matter private occurred against her be- superintendent retaliated year employment of her in the Office first civil had testified in the assistants’ cause she Register of Wills. in the dis- prevailed at 1099. She suit. Br. at 17. against superintendent trict court Finally, argues trial, appeals and the court of affirmed bench testimony fall under would-be cannot even Id. at 1101. that decision. protection provided to the First stated: adjudicatory body by explaining holding, the court testimony before an agree inappli- An individual’s fear official retribution with Donatucci that Reeves is willingness of the witness cable here. could inhibit truthfully. Not would the to A Appeals later decision of the Court of for right of the witness be first amendment expanded upon the Fifth Circuit Reeves. coercion, type judi- infringed by this Johnston v. Harris Flood Control attempting to resolve dis- cial interest Dist., first noted arriving putes by at the truth would be in “[ujnder ... certain circumstances Furthermore, jeopardy. a witness who employee speaks may context in which the imagined real or coer- succumbed sufficient to elevate the to the level of subject charge cion could also be to a concern,” explained and then that: course, duty every perjury. Of is the employee When an testifies before an offi- testify truthfully duly person to before a government adjudicatory cial or fact-find- tribunal_ Yet, ‘[t]hese constituted val- ing body speaks he in a context that ues, along with the first amendment val- concern_ inherently If em- ues, would not be served’ if the fear of ployers against were free to retaliate em- reprisal ‘effectively muz- retaliation and truthful, ployees provide who damag- but ’ testifying open court. zled witnesses ing, testimony employers, they about their (citations omitted). Id. at 1100 employees would force the amake diffi- say princi- The court went on to that these Employees cult choice. either could testi- ples meaningful lead to no distinction be- fy truthfully jobs and lose their or could lie proceeding tween in a criminal protect job to the tribunal and their securi- testimony in proceeding, a civil and that: ty. job security Those able to risk judicial system designed “Our to resolve state-sponsored suffer retaliation disputes, right wrongs. encourage We speaking body the truth before a entrusted testimony, penalty per- uninhibited under discovering with the task of the truth. jury, in attempt truth.” arrive unwilling Those or unable to risk -unem- upheld Id. The court thereafter the district ployment would scuttle our to ar- efforts court’s conclusion that Reeves had been dis- rive at the truth. charged exercising right of free ex- Id. at 1578. pression protected by the First Amendment. cases, In line with the decisions these agree analysis We district court’s agree with the district court that Pro had applicability of Reeves and its to this case. respond to Mrs. First, language of “outer boundaries” appear Donatucci’s at the di- which Donatucci appear relies did not in the proceeding. vorce As the district court stat- Reeves, holding court’s but its statement ed: question of the issue: “The is whether The real issue after Johnston and Reeves generally Reeves’ factual concern- control. the context of the work- reading program in the Claiborne place, public employee normally can County school district comes within the outer speak, choose to speak, or not to on issues protection.” boundaries of first amendment may that incur superiors. the wrath of his Thus, agree Id. at 1100. we with the district subpoenaed A witness has no choice but to appeals court that the court of did not hold trial, appear willing at a unless he is to that Reeves should set the “outer bound- finding risk a contempt. Nor does the protection. aries” Sec- subpoenaed normally say witness in have a ond, noted, as the district court Reeves em- testify. whether he will be called to Retal-

phasized protected the context and form of pun- iation in these circumstances inflicts a speech activity, rather than its content. public employee perform- ishment on a for Third, agree we also with the district court ing an act that he could not choose to that the explicitly upon Reeves court relied avoid. “judicial attempting in interest to resolve disputes by truth,” Donatucci, 13-14, arriving 94-6001, at id. at Pro v. at No. Thus, (E.D.Pa. formulating in its decision. Sept.18, 1995). we dis- 1995WL 552980 may peared proceeding, Donatucci divorce holding our at the recognize that We ready pursuant subpoena opinions of the to and to inconsistent somewhat truthfully, though testify. did and even she Appeals for Fourth Sev Courts Mayor Arvinger protect- and We hold that these facts constituted Circuits. enth because, Baltimore, contextually, speech at F.2d ed City Council of employ concern.3 that was a matter court held the district employment during a fair comments ee’s balancing Finally, Pickering test be public con hearing touched on a'matter of employee’s speaking in tween an interest Appeals for Id. at 77. Court of cern. employer’s regulating speech interest in reversed, chiding the dis Fourth Circuit heavily weighs here in Pro’s favor.4 Pro elevat[ing] “improperly for context trict court alleges against that Donatucci retaliated However, in Id. at 79. Hold over content.” in potential speech because of her a divisive Allentown, 987 F.2d at we er personal matter between and his content, context, play form all that held legitimate had in wife. The state interest analysis. in the constitutional important roles regulating “promot[e] to the effi Thus, is consistent with the law as our result ciency performs services developed in this circuit. it has Pickering, through employees.” Also, 568, 88 Dep’t Wright v. Illinois Chil at at 1734-35. Servs., 40 at Family & dren Circuit Appeals the Seventh Rights Clearly C. Pro’s Were approach adopted the Court described Established Appeals for Fifth Circuit as a “blanket that, argues Donatucci also even according absolute First Amendment rule right if Pro had a First Amendment to re communications made protection to subpoena, right spond to the that was not lawsuit,” explicitly aof which it de course acted, clearly at the time he established We, however, that to follow. believe clined immunity. qualified he therefore entitled responding public employee’s interest qualified appropriate immu standard judicial subpoena and the interest to a nity, above, forth is whether “reason set subpoenas having employees respond state position able in the officials defendants’ justify employer reprisal fear our without believed, light time could have relevant Moreover, agree ruling. we with the district law, in the case of what was decided “practical is no distinction court there their would be lawful.” Good conduct on the between retaliation basis Servs., Dauphin Social testimony and the retalia employee’s actual Cir.1989). 1087, 1092(3d Donatucci, alleges.” Pro No. tion (E.D.Pa. 94-6001, agree with the 1995 WL We district 4 n. without fear respond

Sept.18, Facts the record before clearly at the ap- that Pro of retaliation established district court established content, 1296, Judge gardless appeared of its see dissent in court at the divorce trial in 3. Pro subpoena. Accordingly, analysis we response ignore to a Roth our the Picker- seems what we would have no reason consider result ing balancing altogether. We held test have not voluntarily. appeared Al if she had reached testimony should receive “abso- that courtroom Roth, dissent, Judge though our characterizes protection. On the con- lute” First Amendment constitutionalizing "simple holding obe here as trary, have held that the context of such law,” 1292, we must dience to the dissent at speech speech the to a level of raises here, subpoe point response the out Pro's to content, regardless which in turn concern of its clearly implicated the Amendment—her na First speech unprotected First affords otherwise testimony potential constituted would have protection, protection. This howev- Amendment conduct, itself, expressive speech as the dis not er, em- The interests of the not "absolute.” compliance act of with the sent describes her subpoena. regulat- employer ployee speaking and we are not here “constitutional Thus against ing balanced must then be compliance” izing Dissent at with the law. another, First balanc- one as Amendment 1292. context, exactly what we did. and that is holding Judge our both affording Roth thus misstates By characterizing holding "ab- 4. our as jurisprudence. protection” to re- solute courtroom Reno, Bieregu Register In time Donatucci acted. reasonable of Wills would under- 1459, we noted that “the absence 59 F.3d at protect stand need to from witnesses previous of a from our decision compliance lawfully retaliation with is- constitutionality the conduct of at issue subpoenas, regardless of sued whether determining par- dispositive” in whether the ultimately of- witnesses testified. Like an right ticular was clear- constitutional issue any court, Register ficer a reasonable time, ly particular established at a and stated powerful protecting has a Wills interest in “require[s] but that the standard ‘some not subpoenaed from witnesses retaliation for precise correspondence rele- factual between compliance with those commands. A con- issue,’ precedents vant and the conduct at trary proposition ultimately would under- (citing Litig., id. Philadelphia In re authority position mine both his 970) in 49 F.3d at satisfied. order to be ability carry his to out his duties. Moreover, clearly Bieregu found law to be Pro v. No. Donatucci despite split, long established a circuit (E.D.Pa. Sept.18, 1995). WL 552980 juris- gaping emerged “no has in the divide prudence such that reason- defendants could III. CONCLUSION ably expect circuit this to rule” to the con- trary. Thus, split at 1458-59. above, all For the reasons detailed we will Appeals between the Courts for the Fifth September 18,1995 affirm the district court’s and the Fourth5 Circuits at time of denying summary judgment deny- order preclude Donatucci’s actions does our ing qualified immunity to Donatucci. deciding right respond to to the subpoena clearly established. ROTH, Judge, dissenting: Circuit provided Reeves and Johnston with caselaw which a reasonable official alleges Sisinia Pro that she was fired be- position in his should have realized that Pro complied she subpoena. cause with a This respond had a First Amendment and, clearly so, wrong, if I subpoena. Moreover, a then dis- recent that Pro doubt can establish some viable trict court case in this circuit had followed my however, opinion, claim. she cannot reasoning Circuit, Fifth providing sue, establish the claim on which she chose to even more reference for a official reasonable cause action under U.S.C. position. Donatucci’s See Freeman v. a violation of her rights. McKellar, (“A F.Supp. at 739-40 majority The elects to save Pro’s claim employee’s adju- sworn before constitutionalizing compliance subpoe- with a dicatory body inherently has been held to formulation, na. simple Under this obedi- a matter protected by concern and speech. ence the law becomes free I Amendment.”); the First Hoopes see also respectfully dissent. (same). F.Supp. We Nacrelli agree with the district court that: 1. [a] government reasonable official Dona position

tucci’s intimately would be familiar crux my difficulty majori- with the policy ty’s the[] concerns that underlie simple point: decision turns on one Com- By operation prac Reeves. pliance of statute and is not speech. tice, the Register light fact, functions of the of Wills complex of this basic and so- overlap Orphans’ with the functions of phisticated arguments majority all Indeed, Court. Register naught. of Wills has come A free claim de- power subpoenas pends speech, issue and to en and there was none compliance force subpoenas. with those A case. that, correctly although district court noted it decided that case ten months after Pro’s Appeals the Court of Thus, for the now Seventh Circuit applicable termination. the case rejected perceived has what as the our determination of whether Pro’s Appeals for the Fifth Circuit's "absolute rule" clearly established at the time Donatucci acted. protecting testimony, Wright, trial F.3d at 40

1293 — Boston, -, -, 115 Pro never U.S. S.Ct. clear that The record makes of result, (1995) 2338, 2348, (holding simply appeared. As 132 L.Ed.2d 487 She testified. traditional, linguis speech parade “expressive” in its and was no Boston hence there South This, course, dispositive. of not particular requiring tic sense. law inclusion of state Nereus, speech in constitutional Like message parade-organizer’s right violated of See, e.g., Texas many forms. can take sense speech); free United States v. National Johnson, 397, 2538, — 109 105 491 S.Ct. U.S. v. Union, U.S. -, Treasury Employees (1989) (burning flag); American 342 L.Ed.2d 1012, -, 1003, 115 S.Ct. 130 L.Ed.2d 964 Community Indep. v. Des Moines Tinker (1995) (noting prohibiting law federal 503, 733, Dist., 21 393 89 S.Ct. U.S. Sch. “expressive honoraria burdened activities” of (1969) (wearing arm black L.Ed.2d 731 government employees). Throughout First O’Brien, bands); 391 States v. U.S. United jurisprudence, expression and Amendment (1968) 367, 1673, 20 L.Ed.2d 672 88 S.Ct. communication are the crucial attributes of card). registration Because of (burning draft simply, speech. scope Put First “[t]he permutations, whether elusive these often Amendment is determined the content speech represents a activity constitutes given activity.” expressive R.A.V. v. St. every First Amend question threshold Paul, 377, 2538, 420, 112 2563, 505 U.S. S.Ct. may sometimes ment case. issue (1992) J., (Stevens, 120 L.Ed.2d 305 concur parties may agree to treat sidestepped —the ring). may speech, a court certain conduct expression is this and speech Nowhere stress certain conduct is assume that —but clear than in the v. communication more question always there. See Texas Johnson, 403, 2533, 397, approach that falls outside 109 Court’s 491 U.S. S.Ct. (1989) (“We 2538, spoken or writ must first the traditional domain 105 L.Ed.2d342 burning purview ex ten word. The Amendment’s determine whether Johnson’s conduct, permit general, flag expressive constituted tends to conduct but rather R.A.V., ting expressive him invoke the First 505 U.S. Amendment conduct. See conviction.”). 382, 2538, 2542, 377, I am confident challenging his 112 120 L.Ed.2d S.Ct. (1992) (“The by the principles generally under the established Court, compliance Supreme proscribing prevents government conduct.”) (cita speech. expressive or even speech, omitted, added); emphasis v. tions Smith Amendment, First approaching 1242, 566, 586, Goguen, 415 U.S. 94 S.Ct. emphasized consistently Supreme Court has (1974) (“Th[e 1253, First] 39 L.Ed.2d 605 expressive, communicative dimension course, Amendment, applies descriptions of ringing speech. The Court’s without substantial communi conduct purpose role and fo the First Amendment’s (White, J., con impact.”) cative intent See, aspect. v. e.g., Connick cus examples of curring). The classic conduct- 145, 1684, 138, 103 S.Ct. Myers, 461 U.S. expressive as-speech patently contain all (1983) (“The 1689, 75 L.Ed.2d Johnson, messages. 491 U.S. See Texas Vas fashioned to assure unfet 109, (1989) 2533, 105 L.Ed.2d S.Ct. interchange bringing tered ideas for Republican (burning protest American flag to changes political and social desired about Tinker, Reagan); of Ronald nomination (citations omitted, emphasis people.’ (1969) 733, 21 S.Ct. L.Ed.2d U.S. Educ., added)); Pickering v. Board 1734, 20 L.Ed.2d protest (wearing American black armband 88 S.Ct. U.S. Vietnam); United States involvement (1968) (the public’s interest “free O’Brien, 88 S.Ct. public im debate on matters of uninhibited (1968) (burning registra draft L.Ed.2d 672 “the of the Free portance” is core value war); added)). Brown protest card to Vietnam tion Speech (emphasis Clause” Louisiana, 383 U.S. the Amend applications recent Court’s (1966) segregation (protesting to concrete situations likewise stress ment sit-in); through Virginia Bd. See, West State e.g., Hurley v. Irisfa- this element. Barnette, 624, 63 Gay, Group Educ. & Bisexual American Lesbian 1294 (1943)

1178, (refusing pains explain took to that L.Ed. 1628 to salute the Court this act 87 symbolized flag adherence expressive. where salute to was It looked to “communi- the beliefs); Stromberg political particular set v. cative connotations” the action Califor nia, U.S. 359, 532, L.Ed. 1117 symbol, activity 283 51 S.Ct. 75 the the context which (1931) orga occurred, (displaying flag protest red to speaker intent of the the 410, government). delivering message. nized the Id. 94 at S.Ct. flag display, at For the these factors 2730. basic communicative dimension is Some the “in allowed court to conclude that the qualify for to prerequisite thus a conduct as circumstances, surrounding likelihood Supreme gone speech. But has message great was that under- expressive Not all that is further: conduct 411, stood those who viewed it.” Id. at 94 speech in its constitutional sense. constitutes words, message S.Ct. 2730. In at other clear from the outset in The Court made this had clear communicative content of a consti- O’Brien, United the seminal case of States magnitude. tutional 367, 1673, 391 88 L.Ed.2d 672 U.S. S.Ct. 20 (1968). recognizing conceptual While va- Amendment tests crafted lidity symbolic speech, rejected the Court recognized applied prin these suggestion in the breath the that “an same ciples. In Steirer v. Bethlehem Area Sch. variety apparently of conduct can limitless — (3d Dist., Cir.), denied, 987 F.2d 989 cert. ‘speech’ person engag- labeled whenever the -, 85, U.S. S.Ct. L.Ed.2d 53 thereby express in the conduct intends to (1993), Spence we relied on hold to 376, 1678; an idea.” Id. at 88 S.Ct. at see expressive conduct will constitute Theatre, Inc., also Barnes Glen 501 U.S. “[great] is a where there likelihood 2456, 2462, 111 S.Ct. 115 L.Ed.2d ... the message would be understood.” (1991) (finding expressive insufficient the (quoting Spence, Id. at 995 at 410- U.S. nudity; O’Brien, quoting content 2730). 11, 94 S.Ct. at We also relied on 376, at S.Ct. at U.S. As the language Spence require additional observed, recently possible Court more “It is convey particularized “[a]n intent to a mes expression find some kernel almost sage.” relatively high Id. This established a activity every person undertakes —for ex- standard conduct. communicative After ample walking meeting down street or Supreme Hurley decision in Court’s dis shopping friends at one’s mall —but such — pensed requirement, with the latter U.S. bring activity kernel not sufficient to -, 2345, at set we out a protections within the of the First Amend- expressive modified test for conduct that re Stanglin, ment.” Dallas v. all-important tained the communicative di 1591, 109 S.Ct. L.Ed.2d Pennsylvania mension. Troster State (1989) (finding expressive insufficient Cir.1995), Corrections, Dept. 65 F.3d 1086 gatherings). content of dance-hall — denied, U.S. -, rt. 116 S.Ct. ce per (1996), Spence The Court’s curiam adopted decision 133 L.Ed.2d 663 we as Washington, “whether, considering 94 S.Ct. our standard the na (1974) emerged activity, has as the ture of the combined factual primary guidepost determining context whether and environment in which it was undertaken, having conduct a communicative dimension is we are led the conclusion that sufficiently expressive qualify speech. activity sufficiently imbued with ele Spence The conduct in entailed the ments communication to fall within the display flag scope of American emblazoned with of the First and Fourteenth Amend peace sign. added, (emphasis 2728. ments.” Id. at 1090 cita omitted).1 though Even point, Supreme tion state conceded Consistent with speech, requirement Troster intimated that a different standard rather than to threshold might apply compelled speech, expressiveness my opinion, compli- as distin- itself. In guished from restrictions on intellectual individ- ance fails the latter. To the former, suggest ualism. See 65 F.3d at 1089. I believe that extent also fails I go degree expressive- compelled speech difference would to the even if assume that re- required protected quires expressiveness qualify degree ness conduct a lesser to merit ambiguous. only qualify compli- as precedent, conduct will even more Because Court expression degree if it contains a subpoena mandatory, a compli- ance with is protection. constitutional that merits just easily support ance could as indicate opponent’s that strong cause Turning case at bar with these enough to overcome the disincentive of con- mind, find principles in I no communicative tempt again, compliance sanctions. Once complying in the act of with a dimension cognizable message. subpoena. flag carries no Unlike decorated subpoena no Spence, compliance with a has Nevertheless, assuming arguendo that at “communicative connotations.” 418 U.S. messages cognizable, these were I conclude impossible at 2730. It is 94 S.Ct. precedents from our that the communications any meaningful from the act. draw inference far fall short of constitutional magnitude. Spence’s Compliance also lacks element deny We have hesitated the constitu- Obeying subpoena typical a is a context. appellation “speech” tional to conduct far everything garden a occurrence vari- Troster, expressive more than this. a ety hearing Compli- ato media-event trial. prison guard expressive state refused to wear an Ameri- ance carries no Fi- itself context. nally, compliance Spence’s flag patch lacks element can uniform. 65 his F.3d at person obeys A intent. who command recognizing 1087. While the “various and merely subpoena obeying a the law. She imprecise somewhat ideas with associated requirement society has im- fulfills a that noting id. flag],” at that [the any posed has effort on her. She not made Supreme flag symbol has called the a has no delivered mes- communicate. She “[p]regnant content,” expressive with id. yet sage. No has occurred. Johnson, (quoting Texas v. at 2540), nevertheless held that dispositive. should be No communi This “relay it speech. refusing any no But even I to wear could not cation means if follow otherwise) message Supreme suggestion (ideological any- Court’s and search expression [present] the “kernel one.” found “no [the Id. We evidence that undertakes,” every activity person a almost wearing flag patch] likely of a to function Dallas, 490 U.S. at in a communicative fashion.” Id. 1595, I might more convinced. It be become Steirer, Similarly, high- albeit under argued there are certain minimal com that standard, pre-Hurley er we dismissed the subpoena compliance munications that with a suggestion compliance general with a convey. Compliance could could indicate re requirement expressive con- could constitute spect for law the court or deference to Steirer, high stu- duct. certain school system. recognition It could indicate of the challenged requirement a school dents had citizenship. messages obligations Such they sixty community fulfill hours of generic. Any party, quintessentially are graduation. 987 F.2d at 990. service before law, interpreted complying any with could rejected argument “people in the We expressing If similar views. these are community perform- see students compliance who these messages that a sub carries, likely perceive poena again ing community then it service are once carries silently message message expression at all. Its blends their as an intended actions background into the of norms in-which soci particularized message of their belief ety functions. community and altruism.” value of service concluded, just “It is Id. 997. We instead Alternatively, slightly persuasive more likely performing communi- that students terms, compliance might argued auspices highly ty of a service under the subpoena with a takes on some vicarious publicized required program school will be tinge of content based the interests merely completing viewed as students their Compliance that issues it. could also party high requirements.” graduation school of that suggest desire to on behalf Compliance general requirement party. arguments equally generic with this Such are protection, compliance still fall short. “obviously expressive part element.” test: The communication must address

lacked concern, employ- Id. at matter and the expression ee’s interest must not be legal requirement ap- that a witness outweighed by the interest of the state-as- subpoenaed bears some resem- pear when employer promoting efficiency of its high requirement to a school’s blance public City v. service. Watters Philadel- of community grad- perform service to students (3d Cir.1995) 886, phia, F.3d (citing 55 Steirer, type this of conduct— Under uate. 138, 142, Myers, Connick v. 461 U.S. assuming expressive it were not even —is 1684, 1687, (1983); S.Ct. 75 L.Ed.2d 708 sufficiently certainly expressive. It falls far Educ., 563, Pickering v. Board 391 U.S. expression of of the level of embodied in short 568, 1734, 1731, 88 S.Ct. 20 L.Ed.2d 811 patch flag refusal wear a on Troster’s his (1968)). Although agree majority I with the uniform, which we likewise found insufficient- element, satisfy that Pro can latter there ly Compliance subpoena expressive. with is no indication that can she meet the former. simply “sufficiently not is imbued with ele- of communication ments to fall within the repeatedly We held have that whether scope of the First and Fourteenth Amend- speech public is a matter of concern turns on Compliance 65 F.3d at 1090. ments.” is “content, form, given and context of a speech therefore its constitutional statement, by as revealed the whole record.” Pro’s sense. termination did not violate her 892; See Watters F.3d at Swineford rights, First Amendment her and Snyder County, 15 F.3d Cir. claim must fail. 1994); Yanchulis, O’Donnell v. 875 F.2d (3d Cir.1989). cursory survey A of the cases shows that the three factors in majority opposite reaches conclu- inquiry co-equal. this are practice, In we by working sion in reverse. Rather than exclusively have looked almost to content. following analytical steps standard in a public Alternative formulations of the con claim beginning with cern primacy element reveal the of content. question compliance the threshold of whether Allentown, City Holder v. 987 F.2d 188 speech, majority with a is con- (3d Cir.1993), public we described a concern elaborately an argument structs subtle something “fairly relating considered as premise starts that courtroom testi- social, political, matter or con other mony absolutely is protected regardless of its community.” cern to the Id. at 195. majority content. The then moves back- Snyder County, 15 F.3d Swineford ward, stretching protection the zone of ac- (3d Cir.1994), Supreme we cited testimony compliance corded to include descriptions concerns as matters a subpoena. from ignoring Aside the thresh- going government,” to “the of self essence old issue of speech, what constitutes there Louisiana, 64, 74-75, 85 Garrison v. problems are argument. two 209, 216, 13 (1964), matters premise dictum, central is and it is incorrect. open which “free and debate is vital to First, any protected discussion of the sta- decisionmaking by electorate,” informed tus of testimony actual courtroom is ultimate- Pickering, 571-72, 391 U.S. at 88 S.Ct. at ly obiter argument, dictum. At oral counsel 1736, and matters as to which ... “debate City Philadelphia for the conceded that if uninhibited, robust, should be and wide testified, had fact open,” Sullivan, New York Co. v. Times automatically have absolutely pro- been 11 L.Ed.2d Any holding tected. on this issue is there- (1964). In Sanguigni Pittsburgh Bd. superfluous. fore Edite., (3d Cir.1992), Public 968 F.2d 393 importantly, any More holding categories identified concern absolutely at trial pro- “speech would be that included related to broad social regardless issues,” tected policy speech implicat content incorrect. or id. at government employee, As a discharge Pro’s free public responsibilities “the activity protected office, if important government agency, it meets a two largely operated proxies for institution,” speech “relatfing] content. particularly or example, For no way government office was we have taken additional in which a to the 397-98, tice of that are serving public,” id. statements disseminated in government media, Allentown, improprieties “alleged Holder (3d Cir.1993) office,” non- (open This contrasted with 195-96 id. at 398. matters, “questions regarding city newspaper), such as letter to the editor in morale, the policy, proceeding, office need in an transfer delivered official Czurlan office committee, is, employ- grievance (stressing allegations and the for a supervisors.” mismanagement during level of confidence were made time ee’s public meeting county allotted to at 399.2 board supervisors). of Both are indications that subjects we have identified as The that significant has message substance of the illustrate concern further matters importance community. to the We said as Watters, See 55 F.3d primacy of content. Holder, noting in newspaper’s much that the (head program police-counseling at 891-95 print key to decision the letter —the factor police department criticizing Philadelphia creating provided its additional evi context — O’Donnell, support program); for 875 lack of dence of the letter’s newsworthiness. 987 (3d Cir.1989) (chief police F.2d approach, F.2d at 195. Consistent with this po claiming township supervisors pressured Sanguigni that we found context failed to citations); Stamler, “fix” Zamboni lice to indicate a matter state of concern where (3d Cir.) (detective 73, charging 77 847 F.2d appeared in faculty ments oth newsletter reorganization civil violated state department exclusively topics erwise devoted such as denied, 899, laws), 109 cert. 488 service buttons, ‘April “extra effort bin showers (1988); Rode v. 102 menu, go,’ faculty employee-of- lunch (3d Dellarciprete, 845 F.2d 1201-02 award, the-month and the work of the Sun Cir.1988) alleging (employee discrimination shine Committee.” 968 F.2d 399. Con Pennsylvania issue had State Police where again operated proxy text that case as a subject legislative previously of state been content, demonstrating private na hearings); University, v. Lincoln Johnson dispute. ture Cir.1985) (3d (professor F.2d historically commenting university on black line This well-established of cases indicates lowering of alleged academic standards testified, actually if Pro her that had testimo- Albanese, blacks); its Czurlanis effects “content, ny would evaluated under the Cir.1983) (3d (employee F.2d form, inquiry and context” standard. That county practices criticizing government content, depend heavily on form would inefficient, fraudulent, at times and a waste secondary providing context evidence money). precedents taxpayer These show testimony “fairly could consid- that protected attribute of principal that any relating political, matter of ered public employee is some content- social, community.” to the other concern subject regarding a laden communication Allentown, 987 F.2d Holder community as importance to the a whole. Cir.1993). (3d not, course, Pro did testily, way from so there is no to determine pro- of “form and context”

Our treatment testimony record whether her would support additional for this conclusion. vides Nevertheless, appears it meet this standard. Although repeatedly we have mentioned uphill face an battle. She discussing speech on a these elements proceeding concern, called to at a between was the two factors matter subject private litigants. The matter of controlling any two played a role have never action, Instead, dispute epitome was a divorce opinion types this court. private content of the have considered of a matter. The “form and context” that we witness, potential not a Filippo quirement. exception is San Pro was to this rule 1994), right petition litigant, Bongiovanni, therefore Cir. cert. denied, -U.S. -, implicated To the extent that San L.Ed.2d in this case. by analogy, Judge (1995), applies Filippo I believe that this court held the First in which stronger argument in dissent. petition Becker has the has content re- testimony appears proposed clearly long-stand- to have been circuit. It contradicts our suggested has equally private departs focus It she content. also from —Pro speak past interpretations about an our called extra-marital of form and context. showing, testimony affair. Absent some additional The fact that occurred a court- testimony cannot meet con- room not a proxy importance viable for its requirement. community, simply place cern to the it marks the physical speaking where the act of occurred. otherwise, majority declares conclud context, any The courtroom devoid of exami- ing that the form and context of courtroom content, nation of support cannot a blanket inherently it make a matter of public concern rule. support conclusion, concern. To majority brings relies on line of point eases This me to the I think Circuit, Appeals ultimately majority’s Court of Fifth which opinion: drives the given protection has compelled subpoenaed blanket truthful “form” testimony. given adjudicatory proceed Majority in an Opinion See at 1290. Here I ing. Johnston v. Harris See Flood would remind the court of the well-estab- Dist., (5th principle Control correctly Cir. lished set forth earlier 1989) (“[wjhen employee an in opinion. testifies its principle recognizes before This that government adjudicatory an official although public employee or fact- the speech has free finding body interests, speaks he in a context that is “the state has as an interests em- concern”), denied, inherently public ployer cert. regulating speech in the employ- of its 1019, 110 718, 107 L.Ed.2d 738 ees differ significantly from those it (1990); possesses Reeves v. Claiborne in Bd. regulation connection with of the (5th Cir.1987) Educ., (protect the in citizenry general.” Majority ing public retaliatory Opinion school teacher from (quoting Pickering, 1734). testimony demotion for truthful as witness in U.S. at Consequently, 88 S.Ct. at proceeding). civil This majority blanket rule equally note, forms as the is correct to linchpin in majority’s extension of must “strike ‘balance between the interests protection compliance [employee], citizen, as a in commenting subpoena. majority with a explains, upon As the matters concern and the inter- ‘practical State, “there is no distinction employer, between est of promot- as an public employee’s retaliation of a ing efficiency basis services it ” testimony actual performs and the through retaliation employees.’ alleges.’ Majority Opinion (quot (quoting Pickering, 391 U.S. at Donotucci, 94-6001, Pro v. No. at 4 n. 3 at (E.D.Pa. 1995)). Or, Sept.6, as the district protection of Blanket testimony courtroom elsewhere, plainly stated more “This upsets the balance. The rule is unrealisti- ..., important shift is because if cally govemment- broad and handcuffs the qua testimony receives First Amendment as-employer in areas where it should be protection content, regardless of its then it is protection able to act. Absolute for state- analytically speaker irrelevant whether the ments adjudicatory hearing made an re- speaks Donotucci, all.” Pro v. No. 94- gardless of their content means that an em- (E.D.Pa. 1995 WL 552980 ployee prejudicial who discloses information Sept.18, 1995). in a civil or proceeding, case no matter how Unfortunately, this is As proceeding incorrect. unconnected that is to his em- precedent shows, examination of ployment this court’s egregious information, how giving protection blanket disciplined all courtroom cannot be based on those state- sharply breaks Appeals the law of this ments.3 The Court of Elev- example, 3. For employee exactly assume that a knows what time the accident occurred observes an skipping automobile accident between two because she was work to attend base- private parties. employee subpoenaed game missing is ball and was concerned about rule, subsequent During pitch. tort majority's action. first Under the this testi- cross-examination, employee mony absolutely protected, despite testifies that she not on matter already rejected this rule has enth Circuit concern, speech. impracticality. See it is not even prove its on facts (11th F.3d Soldenwagner, 19 Hansen v. Cir.1994) (refusing to find inherent First po termination Amendment violation reasons, testimony during inves following For I conclude that Pro

lice these has. officer officer, suspension of second tigation into failed to 1983 claim for a viola- establish abusive, vul testified rights. first officer where tion of her As I supe unprofessional fashion about gar, and outset, this noted at does mean prac department department riors court would she has recourse. This tices); Wright Dept. also v. Illinois see rightfully employer if concerned an could Servs., Family & Children employee impunity simply an terminate Cir.1994) (7th (refusing adopt Fifth Cir com- employee appeared because the when rule”). cuit’s “blanket Fortunately, this subpoena. manded Pennsylvania directly law not the case. ad- require- public concern I believe that the dresses situation. ment, applied traditionally has this court it, speech rights protects free adequately states, many recognizes Pennsylvania Like recognizing government employees while wrongful a common law cause of action for employer. as an government’s need act discharge discharge for the where the reason pro- precedents principles out our set public policy. offends a clear mandate of in a much that occurs courtroom. tect Geary Corp., v. United States 456 Pa. Steel employee on some- testifies Whenever (1974); A.2d see Innes v. also “fairly relating to thing considered as (6th Cir.1996) Corp., Howell 76 702 social, other to political, matter or concern public policy exception Ken (noting under Holder, community,” 987 F.2d law); tucky Corp., Rafferty NYNEX 60 Moreover, form protected. is (D.C.Cir.1995) (noting policy F.3d 844 operate still to raise matters and context law); exception under District of Columbia semi-public public importance. to content Bank, Savings Owners Piekarski Home extend, howev- protection Absolute does (8th Cir.1992) F.S.B., (noting 956 F.2d 1484 pri- er, private purely purely to matters law); public policy exception under Minnesota proper bal- proceedings. This is the vate Corp., Pharmaceutical Pierce v. Ortho ance. (1980) (recognizing N.J. A.2d Jersey exception under public policy New result, majority when As is incorrect a law). to all This extends dictum) cause (in testified, action that if Pro had it states private including employees at employees, absolutely protected. be would Ltd., Group Clark v. Modern will. See no premise, initial there is zone Without this Cir.1993) (discussing Pennsylva F.3d 321 to include protection that can be stretched exception). appears policy There nia’s subpoena. argument The compliance with a why it understandable, be reason cover to collapses. because This I, employment compliance with situation. in Part a as discussed legal by examples, presumably private pri- some fic- in a the last fact it addressed a matter employee govemment-as-employer tion so an proceeding. could constructed vate The confessing felony on the stand reprimand discipline fired after a or otherwise could not conviction, based on simply oc- could be terminated employee, because the disclosure testimony given 'before an types proceed- rather than based in a courtroom. Other curred adjudicatory fact-finding government or ings produce egregious might more official statements. body.” Flood Control hypothetical Johnston v. Harris a divorce action or In the course of Cir.1989). (5th Dist., employee Be- custody proceeding, could let child slip an pub- principles against moonlighted company the well-established cause that she had income, protect employees adequately lie had concern test policy to increase her falsified as- handcuffing govemment-as-employ- pects background qualifications, or without had of her er, complications these company property. is no need invite pilfered Under the there items of rule, protecting testimo- protect- adopting rule an absolute statements would be blanket these ny. suggested ed. as to more serious difficulties And Pennsylvania’s public policy exception pro- of a existence state law claim does much to troubling employees being equities from forced to commit address the otherwise tects law, Pennsylvania this case. not 42 illegal employ- as a condition of their U.S.C. acts provides appropriate means of prevents using employers ment. It also from Consequent- redress for Pro’s termination. employee’s compliance legal require- with ly, constitutionalizing compliance with a sub- ments as a basis for termination. The semi- incorrect, poena unnecessary. isit recognized nal case in this area an action for wrongful grounded termination exception employee policy where an was ter- complying statutory duty a

minated for with wrongfully Sisinia was terminated for jury. complying subpoena. Unfortunately, to serve on Reuther Fowler & Inc., Williams, Pa.Super. wrong she chose to sue under A.2d cause of (1978). complied subpoe- action. When Pro na, simply she obeying the law. Obedi- duty comply with a speech. ence to the law is not free directly analogous duty serve on termination, resulting retaliatory while Indeed, jury. Pennsylvania basis for wrongful, was therefore not a violation of Superior Court’s decision Reuther was its rights. Pro’s First Amendment I would re- recognition Pennsylvania law, that under verse the district court’s denial of defen- “[sjummons jury ... shall service for summary judgment, dant’s motion and I deemed summonses the court....” judgment would enter in the defendant’s fa- A.2d at 120. logi Reuther’s rule therefore vor. cally applies subpoena, to a which defini tion is a summons the court. At least one

decision the district courts of this cir Pennsylvania

cuit has extended the

policy exception to cover termination for re

sponding a subpoena. See Reiser North Co., Am. Assur. WL 4829 at *1 America, Life UNITED STATES of (E.D.Pa. 1986) (Clifford Green, Apr.18, Scott Plaintiff-Appellee, J.). similarly Other states have extended public policy exceptions their to cover termi WILSON, Sr., Eddie C. Defendant- compliance nation subpoena. with a See Appellant. Garner v. Corp., Morrison Knudsen No. 94-5872. (S.C.1995); Hocks, S.E.2d 907 Nees v. (1975); Or. P.2d Williams v. Appeals, United States Court of Corp.,

Hillhaven N.C.App. 370 S.E.2d Fourth Circuit. (1988). I am Pennsyl confident that the Argued Feb. 1996. vania recognized courts would have a wrong ful discharge claim on April 22, the facts of this case.4 Decided 1996.

Although scope of First Amendment

protection clearly depend pres- cannot on the remedies,

ence or absence of alternative addition, my disposition Sanguigni, § ("Sanguigni Pro’s 968 F.2d at 396 filed this alleging Amendment claim foreclose oth action ... that defendants had violated challenges er may speech, association, that she have had available. her freedom of freedom It stances, process. well-established that under pen- certain circum and due She also noted various claims.”). however, public employee of a complaint, termination can dent state process violate the due See clause. ClevelandBd. did not mention these other claims. The model Loudermill, Educ. v. alleged only of minimalism filed in this action (1985); Blanding exactly para- v. Penn one count twelve numbered sylvania Police, (3d Cir.1993). graphs. State nothing my F.3d 1303 With to contradict faith in may diligence, also have an action for breach of attorney con counsel’s I assume that Pro's tract. figures recognized These theories are selecting familiar these alternatives when his § alleging retaliatory strategy, actions litigation termination but shifted to a 1983 claim See, rights. for exercise of e.g., because of other considerations.

Case Details

Case Name: Sisinia Pro v. Ronald Donatucci. Ronald Donatucci, Register of Wills

Court Name: Court of Appeals for the Third Circuit

Date Published: Apr 26, 1996

Citation: 81 F.3d 1283

Docket Number: 95-1803

Court Abbreviation: 3rd Cir.