RILEY v. BOROUGH OF EDDYSTONE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Kenneth Riley,

Plaintiff,

CIVIL ACTION

v. NO. 24-1835

Borough of Eddystone, et al.,

Defendants.

Pappert, J. May 22, 2025

MEMORANDUM

Kenneth Riley says the Borough of Eddystone fired him because he is black

and/or in retaliation for comments he says were protected by the First Amendment and

Title VII. He sued the Borough for intentional discrimination and retaliation under

Title VII and the Pennsylvania Human Rights Act,1 and the Borough along with five of

its officials for First Amendment retaliation under 42 U.S.C. § 1983. Each Defendant

moves for summary judgment.

The Court grants former Borough Manager Dawn Jones’s motion because there

is no evidence in the record that she influenced the decision to fire Riley in retaliation

for his protected speech. The Court denies the motion by former Mayor Rob Yannuzzi

and Councilmembers William Stewart, Randy Perry and Ronald Hughes because the

jury needs to decide whether they voted to fire Riley in retaliation for his protected

speech and because they are not entitled to qualified immunity. The Court denies the

1 He also brought a claim for hostile-work-environment discrimination, which the Court

previously dismissed. See Riley v. Borough of Eddystone, No. CV 24-1835, 2024 WL 4844794, at *2–

3, *3 n.2 (E.D. Pa. Nov. 20, 2024).

Borough’s motion with respect to Riley’s retaliation claims, but it grants the motion

with respect to the intentional-discrimination claims because nothing in the record

raises an inference that Riley was fired because of his race.

I

Riley worked for the Borough of Eddystone’s Streets Department from early

December 2023 until his termination on February 12, 2024. (Minutes Dec. 11, 2023

Meeting, ECF No. 42-6); (Minutes Feb. 12, 2024 Meeting, ECF No. 42-10.) The record

indicates that Riley endured discriminatory treatment by his coworkers during his

tenure, but also that he was far from a gold-star employee.

First, Riley says that about two weeks after he began, fellow new hire John

Caponi “screamed out” the N-word after a car nearly collided with the garbage truck in

which he and Riley were riding. (Riley Dep. 99:16–23, 101:19–102:2, ECF No. 24-5.)

Second, Riley says that on January 17, coworker Mike Dugan told him that “once the

blacks came to Eddystone, they messed up the neighborhood.” (Id. 333:12–334:10.)

And third, Riley says that sometime in January he was listening to music with Caponi

and another coworker when Caponi — “bored” and “trying to be funny” — told Riley

that he was “acting like a ni–” and then caught himself before finishing the N-word.

(Id. 130:21–131:2, 132:8–14, 134:19–135:1, 139:1–7.)

Riley’s colleagues also apparently mistreated him in other ways. He says the

more senior employees refused to show him and Caponi the proper trash-collection

route and even drove the route incorrectly to confuse them. (Id. 82:7–23.) He also says

his truck stopped working right after he caught his coworker Chris Ropski “under [its]

hood.” (Id. 109:15–113:22.) He says he reported these incidents to Jones, (id. 93:14–

94:2, 111:8–112:3), and when his coworkers found out they labelled him a snitch and

refused to work with him, (id. 124:19–125:10). And he says that when he asked his

supervisor Norm Quinn whether newly posted instructions not to play video games at

work were directed at him, Quinn “lost it,” got “in his face,” “scream[ed]” at him “in

front of everybody,” and then threatened to “fire [his] ass.” (Id. 221:2–22.)

With respect to Riley’s behavior, the record contains evidence of several

instances of misconduct. One of Riley’s coworkers reported in mid-January that he

stole rock salt from the Streets Department to use at his and his neighbors’ homes.

(Jones Dep. 31:21–32:11, ECF No. 42-12.) And according to Quinn, Riley played “video

games during work time,” questioned Quinn’s “authority” when he instructed the

Streets staff not to play video games, and used his phone while driving the garbage

truck and during other work hours. (Quinn Accident/Incident Statements, ECF No. 42-

15.) Then, as friction between Riley and the other Streets staff mounted, Riley sought

to make a record of his interactions with them and purchased a camera to wear on his

body at work. (Riley Dep. 172:9–175:10.) Around this time Riley also threatened “to

make [his colleagues’] lives hell” if the Borough fired him. (Quinn Dep. 14:2–10, ECF

No. 42-15); (Quinn Accident/Incident Statements.)

Riley’s behavior, particularly the threats, made his coworkers uncomfortable.

(Quinn Dep. 14:11–23); (Jones Notes, ECF No. 43-11); (Jones Email Feb. 1, 2024 5:16

p.m., ECF No. 43-22 at 9.) Caponi ultimately resigned from the Streets Department in

part because he could no longer tolerate Riley. (Caponi Dep. 19:18–24:22, ECF No. 42-

24.) Word that Riley had threatened his coworkers reached Councilmembers Perry,

Stewart, Michael Bannon and Rachel Walker in late January. See (Bannon Email Feb.

1, 2024 8:27 a.m., ECF No. 43-22 at 10); (Walker Email Feb. 1, 2024 8:33 a.m., ECF No.

43-22 at 9–10); (Stewart Dep. 10:14–23, ECF No. 42-21); (Jones Dep. 31:21–23.)

Bannon emailed Jones on February 1 recommending that Riley be “immediately

suspend[ed] . . . until the council meeting where he can be terminated.” (Bannon Email

Feb. 1, 2024 8:27 a.m.) Jones then placed the issue of Riley’s potential termination on

the agenda for the Borough Council’s February 5 “workshop” meeting.2 (Jones Dep.

41:19–42:5); (Feb. 5 Meeting Agenda at 2, ECF No. 42-9.) She also texted Riley on

February 1 and told him not to come in the next day because the Borough didn’t have

enough work for him. (Riley Dep. 178:3–11); (Jones Aff., ECF No. 42-13.) Jones sent

him similar texts on each of the following days until February 4. See (Riley Dep.

277:19–22); (Jones Aff.)

Riley says that upon receiving these texts from Jones, he sensed his termination

might be imminent. (Riley Dep. 277:14–278:7.) He thought it was unfair for the

Council to terminate him, so he attended the February 5 workshop meeting and said so.

The meeting was recorded and is publicly available on the Borough’s YouTube

channel.3 Though the audio is muffled, Riley can be heard recounting Dugan’s

comment that Eddystone has “gone downhill since the Blacks moved in” and Caponi’s

use of the N-word in the garbage truck; accusing Jones of sweeping these incidents

under the rug; and complaining that he is being pushed out after being bullied and

subjected to racism. See (Feb. 5 Council Meeting 26:30–31:30.)

2 According to Jones, the Council holds a “workshop” meeting on the first Monday of each

month, and on the second Monday it holds “the actual council meeting where a vote takes place on

. . . agenda items.” (Jones Dep. 40:1–7.)

3 https://youtu.be/nRByQmKtHb0?si=RdCOvjvYLtYpFVzE&t=1580.

Between the February 5 workshop and the February 12 meeting,

Councilmembers Hughes, Perry and Walker investigated Riley’s claims of racist

treatment and the Streets staff’s complaints about his behavior. See (Riley Dep.

298:20–299:8); (Jones Dep. 42:23–45:8); (Hughes Dep. 18:3–19:6.) Then at the

February 12 meeting, Councilmember Hughes moved for Riley’s termination, Stewart

seconded it, and Perry voted in favor of the motion. (Minutes Feb. 12 Meeting.)

Councilmembers Hall, Walker and Bolton voted against termination, and Bannon

abstained. (Id.). All four stated that they did not have enough information to conclude

that Riley engaged in conduct warranting termination. (Bannon Dep. 16:1–19); (Hall

Dep. 21:22–22:18); (Walker Dep. 29:6–9); (Bolton Dep. 16:19–17:18.) Mayor Yannuzzi

cast the tiebreaking vote in favor of termination. (Minutes Feb. 12 Meeting.)

II

Summary judgment is appropriate if the movant shows “that there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a); Liberty Mut. Ins. Co. v. Sweeney, 689 F.3d 288, 292 (3d

Cir. 2012). A material fact is one that “might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute

over a material fact is “genuine” if, based on the evidence, “a reasonable jury could

return a verdict for the nonmoving party.” Id.

The movant bears the initial burden of demonstrating the absence of a genuine

dispute of a material fact. Goldenstein v. Repossessors Inc., 815 F.3d 142, 146 (3d Cir.

2016). When the movant is the defendant, they have the burden of demonstrating that

the plaintiff “has failed to establish one or more essential elements of [his] case.”

Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013). If the movant sustains this

initial burden, “the burden shifts to the nonmoving party to go beyond the pleadings

and come forward with specific facts showing that there is a genuine issue for trial.”

Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (internal quotation marks omitted)

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

The Court's role is not to weigh the evidence and determine the truth of the matter, but

rather to determine whether there is a genuine issue for trial. See Anderson, 477 U.S.

at 249; Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007). In doing

so, the Court must construe the facts in the light most favorable to the non-moving

party. See Horsehead Indus., Inc. v. Paramount Commc’ns, Inc., 258 F.3d 132, 140 (3d

Cir. 2001).

III

Riley sued all Defendants under § 1983 for First Amendment Retaliation. The

Court’s analysis proceeds two parts. First, the Court must “identify the exact contours

of the underlying right” and determine whether a jury could conclude that Riley was

deprived of that right. See Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 222 (3d

Cir. 2015). Second, the Court must determine which Defendants, if any, may be liable

for that deprivation.

A

To establish a claim for First Amendment retaliation, Riley must show that (1)

he engaged in “constitutionally protected conduct,” (2) he was subject to “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.” Palardy v. Twp. of Millburn, 906 F.3d 76,

80–81 (3d Cir. 2018) (cleaned up). Everyone agrees that Riley’s termination is an

action sufficient to deter a person of ordinary firmness, so only the first and third

elements are in dispute.4

1

Speech by a public employee is protected if (1) the employee spoke as a citizen

and not an employee, (2) the speech involved a matter of public concern, and (3) the

government lacked an adequate justification for treating the employee differently than

a member of the public based on its concerns as an employer. Munroe v. Cent. Bucks

Sch. Dist., 805 F.3d 454, 466 (3d Cir. 2015). Whether a public employee’s speech is

protected is a question of law for the Court to answer. Fenico v. City of Philadelphia, 70

F.4th 151, 162 (3d Cir. 2023).

First, a public employee speaks as a citizen if the speech in question is not

“ordinarily within the scope of [his job] duties.” Lane v. Franks, 573 U.S. 228, 240

(2014). No Defendant adduced evidence that Riley’s duties as a Streets Department

worker ordinarily involved speaking to the Council and public about his work

environment. Jones argues instead that Riley spoke as an employee because “his

allegations of racism were rooted in his employment experience.” (Jones Mot. 6–7, ECF

No. 41.) But “the mere fact that a citizen’s speech concerns information acquired by

4 At the motion-to-dismiss stage, the Court held that the cancellation of Riley’s shifts

immediately following Riley’s speech could also plausibly constitute retaliation. Riley v. Borough of

Eddystone, No. CV 24-1835, 2024 WL 4137310, at *6 (E.D. Pa. Sept. 10, 2024. Riley now pursues

retaliation claims based only his termination. See (Resp. to Jones 8–9, ECF No. 46); (Tr. Oral Arg.

76:11–14.)

virtue of his public employment does not transform that speech into employee — rather

than citizen — speech.” Lane, 573 U.S. at 240.

Second, speech involves a matter of public concern if, based on its “content, form,

and context,” it “can be fairly considered as relating to any matter of political, social, or

other concern to the community” or “is a subject of legitimate news interest.” Id. at 241.

The speaker’s motive for speaking is relevant but not dispositive in the analysis.

Azzaro v. Cnty. of Allegheny, 110 F.3d 968, 978 (3d Cir. 1997).

The subject matter of Riley’s speech at the February 5 meeting was, at least in

part, racial discrimination he allegedly suffered at the hands of his coworkers and

alleged refusals by his superiors to do anything about it. See (Feb. 5 Council Meeting

26:30–31:30.) Discrimination by public servants on the basis of arbitrary

characteristics like race is undoubtedly a matter of concern to the community,

regardless of whether the alleged discrimination is a systemic problem. Rode v.

Dellarciprete, 845 F.2d 1195, 1201–02 (3d Cir. 1988); Connick v. Myers, 461 U.S. 138,

148 n.8 (1983); see also Azzaro, 110 F.3d at 978, 980; Starnes v. Butler Cnty. Ct. of

Common Pleas, 50th Jud. Dist., 971 F.3d 416, 429 (3d Cir. 2020). The Defendants don’t

seriously dispute this, arguing instead that the form and context of Riley’s speech

render it a mere “personal grievance” in which the public has no real interest. (Jones

Mot. 7); (Borough Defs.’ Mot. 14–16, ECF No. 42.)

Jones’s argument is that the public wouldn’t be concerned about the

discrimination Riley raised because he “spoke during a workshop meeting about his

own department, not as a whistleblower exposing systemic misconduct.” (Jones Mot. 7);

(Tr. Oral Arg. 4:11–18.) But a public employee’s speech doesn’t lose its value to the

public just because it embraces subject matter related to his job. See Lane, 573 U.S. at

240 (noting that such speech often “holds special value”). And Jones doesn’t explain

how the “workshop” nature of the meeting could cut against the public-concern element.

In fact, the workshop meeting was open to the public, it was recorded for the public to

view after the fact, and the agenda for the meeting specifically included time for

Eddystone residents to speak. See (Feb. 5 Meeting Agenda at 1); (Tr. Oral Arg. 8:3–6.)

If anything, the workshop-meeting forum enhanced the public nature of his speech. See

Snyder v. Phelps, 562 U.S. 443, 456 n.4 (2011) (fact that speech occurs in public forum

“heightens concerns that what is at issue is an effort to communicate to the public”).

For their part, the Borough Defendants argue that Riley’s comments did not

implicate a matter of public concern because he spoke only to save his own job and

because most of his grievances “did not involve discrimination.” (Borough Mot. 14–15.)

They cite no evidence in support of the latter assertion, so it’s not clear what other

grievances they believe Riley raised at the February 5 meeting. On the Court’s own

review of the meeting footage, Riley begins by introducing himself and briefly

explaining the “cutthroat” and unfriendly tenor of the workplace, (Council Meeting

26:30–28:30), before spending most of the final three minutes of his five-minute speech

recounting two instances of racial discrimination by his coworkers, (id. 28:30–28:50,

29:10–29:50), accusing Jones of sweeping his complaints about racism under the rug,

(id. 28:50–29:10, 29:50–30:00), and arguing that it’s unfair to fire him for reporting

“bullying” and “racism,” (id. 30:00–31:35). So contrary to the Borough Defendants’

characterization, the reports of racial discrimination were core aspects of Riley’s public

remarks about his experience in the Streets department. And while Riley may well

have been trying to save his job, that’s not enough on its own to change the character of

Riley’s speech from public to private. See Rode, 845 F.2d at 1201.

Third, since Riley spoke as a citizen about a matter of public concern, the First

Amendment protects him from retaliation unless the Borough’s “interest in

maintaining an efficient workplace and avoiding disruption” outweigh the value of

Riley’s speech. Baloga, 927 at 756. The Defendants need not show that Riley’s speech

“caused actual disruption to [the Borough’s] operations,” but they must at least

“establish likely disruption through record support,” with more than “unadorned

speculation as to the impact of speech.” Fenico, 70 F.4th at 166.

Only Jones makes any argument that Riley’s speech disrupted Borough

operations. She contends that Riley’s comments caused Streets Department staff to

“view[] him as a snitch.” (Jones Mot. 7.) Initially, this argument is legally unsound:

“the public[’s] . . . significant interest in encouraging legitimate whistleblowing,”

Munroe, 805 F.3d at 473, would be too easily undermined if the government could

justify retaliating against whistleblowers by doing no more than pointing out that the

whistleblowees are upset about it, cf. Baloga, 927 F.3d at 757 (holding evidence that

plaintiff’s “whining” was “bringing the morale . . . down” insufficient on its own to show

disruption). And in any event, the argument has no factual support. Jones cites only to

evidence showing that Riley’s colleagues viewed him as a snitch for wearing a camera

to work before the February 5 meeting. (Jones Mot. 7 (citing Ropski Dep. 9:9–24, 101–

14.)) She cites no evidence that their view of Riley as a snitch was attributable to his

February 5 speech.

2

Riley must next show that his February 5 speech “was a ‘substantial’ or

‘motivating factor’” in his termination. Baloga, 927 F.3d at 759. He may do so by,

among other methods, showing “an unusually suggestive temporal proximity” between

his speech and termination. Id. If he makes that showing, the burden shifts to the

Defendants to show that Riley would have been fired “even in the absence of the

protected conduct.” Id. (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)).

Riley has met his initial burden. The one-week gap between his February 5

speech and February 12 termination is unusually suggestive temporal proximity on its

own. See Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d Cir. 2012);

Baloga, 927 F.3d at 759 n.15. And the timing is made even more suggestive by the fact

that the Borough Council fired Riley as soon as it practicably could have after he spoke

out. See (Jones Dep. 40:1–7); Connelly v. Lane Const. Corp., 809 F.3d 780, 792 (3d Cir.

2016) (suggesting that even a year-long gap might be unduly suggestive proximity

because the plaintiff was a seasonal worker and the alleged retaliatory failure to rehire

could not practicably have occurred any earlier).

To obtain summary judgment on causation grounds, then, the Defendants “must

present evidence of such quality that no reasonable juror could conclude that the

protected activity was the but-for cause of the termination.” Baloga, 927 F.3d at 759

(quoting Hill v. City of Scranton, 411 F.3d 118, 126 n.11 (3d Cir. 2005)).5 The primary

5 As the Court has explained, some courts in retaliation cases under § 1983 hold that where a

multimember body is the relevant decisionmaker, the plaintiff cannot establish causation unless a

majority of the body’s members were improperly motivated, see Riley v. Borough of Eddystone, No.

CV 24-1835, 2024 WL 4137310, at *6 n.4 (E.D. Pa. Sept. 10, 2024) (citing Watson v. Borough of

Susquehanna, 532 F. App’x 233, 236 (3d Cir. 2013)), while other courts hold that only a “deciding

margin” of votes must be improperly motivated, see id. (citing Scarbrough v. Morgan Cnty. Bd. of

argument made by all Defendants is that Riley’s poor behavior at work made his

termination inevitable before he spoke out on February 5, and that the only reason the

Council did not fire him before he did so is that they could not until the February 12

meeting. See (Borough Defs.’ Mot. 18); (Jones Mot. 8); (Tr. Oral Arg. 18:21–22:4, 59:3–

9.) On this record, however, a jury could conclude otherwise.

The agenda for the February 5 workshop meeting listed Riley’s potential

termination as an “action item,” see (Feb. 5 Meeting Agenda at 2), so the Council was

certainly going to consider the issue. But the record contains no evidence that before

February 5, anyone on the Borough Council had made up his or her mind to vote in

favor of firing him. The only Councilmember who appears to have given thought to his

vote prior to February 5 is Bannon, who indicated in a February 1 email that he favored

firing Riley. (Bannon Email Feb. 1, 2024 8:27 a.m.) Yet Bannon ultimately abstained

from the vote, (Minutes February 12 Meeting), so he clearly had not made up his mind

by February 5. The only other Councilmembers who apparently even knew about

Riley’s misconduct before February 5 were Perry, Stewart and Walker. (Jones Dep.

31:21–23); (Walker Feb. 1, 2024 8:33 a.m. Email, ECF No. 43-22); (Stewart Dep. 10:13–

23.) Walker ultimately voted against firing Riley. (Minutes February 12 Meeting).

Perry and Stewart ultimately voted in favor, (id.) but the record does not show that

either had made up his mind before February 5.6

Educ., 470 F.3d 250, 262 (6th Cir. 2006)). The parties inexplicably failed to brief this issue for a

third time now. See Riley, 2024 WL 4844794, at *2 n.1 (flagging the issue for Riley’s Title VII

claims). The Court will once again refrain from choosing sides because, as explained below, the

record doesn’t foreclose a jury from concluding that all four individuals who voted to fire Riley would

have voted differently absent his February 5 speech.

6 Counsel for the Borough Defendants asserted at oral argument that Hughes also knew about

Riley’s misconduct before February 5. (Tr. Oral Arg. 63:3–64:15.) But she failed to cite any specific

A jury could also conclude that the Councilmembers would not ordinarily have

viewed Riley’s misconduct as meriting termination. Riley says Norm Quinn once

“stormed over” to him “like he was ready to fight” and then “scream[ed]” at him and

threatened to “fire [his] ass.” (Riley Dep. 221:2–22.) Riley also says crew members

often drove the trash route incorrectly, and he suspected that one of his coworkers

sabotaged his garbage truck. (Riley Dep. 82:7–23, 109:15–113:22.) And, of course,

Riley says his coworkers made racist comments to him. (Id. 99:16–23, 101:19–102:2,

130:21–139:7, 333:12–334:10.) Riley reported these incidents, (id. 93:14–94:2, 111:8–

112:3, 139:14–23, 222:4–6,) but the Council apparently never considered terminating

any Streets staff besides him. See (Feb. 5 Meeting Agenda at 2 (listing action item “pay

increase for Norm Quinn and Mikey Dugan”)); (Minutes Feb. 12 Meeting.) If

Councilmembers were generally willing to tolerate misconduct by Streets employees,

including threatening and mistreating their colleagues, a jury might reasonably doubt

that the Council would have fired Riley for his misconduct.

B

The next issue is which Defendants may be held liable for the alleged violation of

Riley’s First Amendment rights. The individual Defendants may only be liable if they

had “personal involvement” in the violation, id., and even then they may have qualified

immunity if the right they allegedly violated was not “clearly established” at the time of

the conduct, Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 762 (3d Cir. 2019). And

the Borough is only liable if it was the “moving force” behind the violation; respondeat

evidence in the record in support of that assertion, and the Court is unaware of any. Counsel

conceded that Yannuzzi did not learn of Riley’s misconduct until after February 5. (Id.)

superior is inapplicable. Hightower v. City of Philadelphia, 130 F.4th 352, 356 (3d Cir.

2025) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 694 (1978)).

1

Only Jones disputes her personal involvement in the alleged violation of Riley’s

rights. See (Jones Mot. 9–10, n.1.) A government official may in some cases be liable

for First Amendment retaliation even if she was not the one who made the allegedly

retaliatory decision. For example, a plaintiff may sue a “nonprosecuting official” for

retaliatory prosecution if that official “acted in retaliation” and “induced the prosecutor

to bring charges that would not have been initiated without his urging”. Hartman v.

Moore, 547 U.S. 250, 262 (2006); see also Sims v. City of Madisonville, 894 F.3d 632,

639–40 (5th Cir. 2018) (collecting authority for the proposition that a non-

decisionmaker who retaliates against an employee by recommending termination may

be liable for the termination). But here, Riley has adduced no evidence of any action

taken by Jones that both induced the Borough Council to fire him and was motivated by

his February 5 speech. When pressed at argument, the only actions by Jones that

Riley’s counsel identified as possibly inducing Riley’s termination occurred before

February 5. (Tr. Oral Arg. 37:9–40:5.) Those actions could not have been motivated by

his speech and cannot render her liable for First Amendment retaliation. See Galli v.

New Jersey Meadowlands Comm’n, 490 F.3d 265, 275 (3d Cir. 2007) (defendant cannot

retaliate for protected activity without knowledge of the protected activity).

2

The individual Councilmembers assert qualified immunity. “Qualified immunity

shields government officials from civil damages liability unless the official violated a

statutory or constitutional right that was clearly established at the time of the

challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (citations omitted).

A right is “clearly established” if “every reasonable official would have understood that

what he is doing violates that right.” Id. (cleaned up). That means “existing precedent

must place the lawfulness of the particular [action] beyond debate.” D.C. v. Wesby, 583

U.S. 48, 64 (2018). Only “controlling authority” or “a robust consensus of cases of

persuasive authority” may place an issue beyond debate. Id. at 589–90.

The key questions for analyzing qualified immunity in First Amendment

retaliation cases are (1) whether the law clearly established that a given action by the

employer was sufficiently adverse, and (2) whether the law clearly established that the

speech in question was protected. See Mirabella v. Villard, 853 F.3d 641, 653, 653 n.8

(3d Cir. 2017); Lane, 573 U.S. at 243.7 The adverse action here was Riley’s termination.

And the speech in question was his public report of racial discrimination, which

according to the record did not disrupt any public functions. So the relevant question is

whether any reasonable official in February 2024 would believe he could fire an

employee for making that speech.

No reasonable official could so believe. Prior to February 2024, it was clearly

established that the government cannot fire an employee for speaking as a citizen on a

matter of public concern unless the speech’s disruptive effect on public operations

7 The Councilmembers have not offered a helpful articulation of the right allegedly violated.

They say that “no precedent” establishes that the Council “could not terminate a public employee

[who] was scheduled for termination because prior to terminating him the employee spoke in a

public forum and made claims that his reports of racism had not been heard and acted on properly.”

(Borough Defs.’ Mot. 20); see also (Tr. Oral Arg. 65:20–23.) This mischaracterizes Riley’s claim. He

doesn’t assert that his speech insulates him from termination; only that his speech cannot be the

basis for his termination.

outweighed the value of the speech. See, e.g., Dougherty, 772 F.3d at 993. It was also

clearly established that a public employee’s speech outside the context of his job duties

about arbitrary discrimination by public servants satisfies the citizen-speech and

public-concern requirements. See, e.g., Rode, 845 F.2d at 1201–02 (employee’s

statement to news reporter that “she was a victim of retaliation arising out of racial

animus within the [Pennsylvania State Police]”); Azzaro, 110 F.3d at 978–80

(employee’s reports to superiors of one-off instance of gender discrimination). And it

was clearly established that where speech satisfies the citizen-speech and public-

concern elements and causes no disruption at all, the speech is protected. McGreevy v.

Stroup, 413 F.3d 359, 367 (3d Cir. 2005). The Councilmembers thus are not entitled to

qualified immunity.

3

Counsel for the Borough briefly contested municipal liability at oral argument,

stating that “[t]here’s no evidence of any type of municipal action here.” (Tr. Oral Arg.

57:13–14.) But a municipality is liable for unconstitutional firings by officials with

“final and unreviewable” authority over personnel decisions. See McGreevy v. Stroup,

413 F.3d 359, 368–69 (3d Cir. 2005); Hill v. Borough of Kutztown, 455 F.3d 225, 245 (3d

Cir. 2006). And the Borough has never disputed that the Borough Council has final

authority to fire employees. See 8 Pa. Con. Stat. § 1005(1); Riley, 2024 WL 4137310, at

*5 (noting that the Borough did not dispute this at the motion-to-dismiss stage).

IV

Riley also sues the Borough for retaliation in violation of Title VII and the

PHRA.8 These claims survive summary judgment largely for the same reasons as his

First Amendment claim. To make out a prima facie case, Riley must show that (1) he

engaged in protected employee activity; (2) the Borough took an adverse employment

action either after or contemporaneous with the protected activity; and (3) there is a

causal connection between the protected activity and the adverse action. Daniels v.

Sch. Dist. of Philadelphia, 776 F.3d 181, 193 (3d Cir. 2015). If he establishes all three

elements, the burden shifts to the Borough to articulate some “legitimate, non-

retaliatory reason for having taken the adverse action.” Id. Once the Borough

articulates such a reason, the burden shifts back to Riley “to demonstrate that the

employer’s proffered explanation was false, and that retaliation was the real reason for

the adverse employment action.” Id. (internal quotation marks omitted).

Riley asserts, and the Borough apparently no longer disputes, that his comments

at the February 5 workshop meeting constituted protected employee activity under

Title VII. See (Borough Defs.’ Mot. 11–12).9 The Borough also obviously does not

dispute that termination is an adverse employment action. (Id.) And just as with

8 The Court analyzes the Title VII and PHRA claims together because their provisions are

coextensive. Qin v. Vertex, Inc., 100 F.4th 458, 470 (3d Cir. 2024).

9 The Borough’s concession appears to be based on a misunderstanding of what constitutes

protected employee activity for Title VII purposes. Its brief suggests that the key question for

determining whether Riley’s February 5 speech was protected is whether Riley spoke on a matter of

public concern. (Borough Defs.’ Mot. 12.) The public-concern question is important for determining

First Amendment protection, but as the Court has explained in its two prior opinions in this case,

whether Title VII protects Riley’s February 5 speech depends on whether he reasonably and in good

faith believed that the racist conduct he was reporting to the Council constituted a hostile work

environment or other Title VII violation. See Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d

Cir. 2006).

Riley’s First Amendment claim, the unusually suggestive temporal proximity between

his February 5 speech and February 12 termination satisfies the prima facie causal-

connection element. See Dondero v. Lower Milford Twp., 5 F.4th 355, 362 (3d Cir. 2021)

(using Title VII and § 1983 precedent on temporal proximity interchangeably);

Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d Cir. 2012) (same).

The Borough’s burden to articulate a legitimate, non-retaliatory reason for firing

Riley is “relatively light” — it “need not prove that the articulated reason actually

motivated” Riley’s firing. Woodson v. Scott Paper Co., 109 F.3d 913, 920 n.2 (3d Cir.

1997). The Borough again says that the reason the Council voted to fire Riley was his

misconduct at work; namely, stealing rock salt, playing video games at work, and

wearing a body camera to work while threatening his colleagues. (Borough Mot. 10,

14.)

So the burden shifts back to Riley “to demonstrate “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions” in the Borough’s explanation.

Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 262 (3d Cir. 2017) (quoting

Daniels, 776 F.3d at 199). He may proceed to trial if a jury could conclude that the

Borough’s explanation is “unworthy of credence, and hence infer that the employer did

not act for the asserted non-retaliatory reasons.” Id. (cleaned up). As explained, a jury

here could so conclude: the record does not establish that anyone on the Council had

made up their mind before February 5 to vote in favor of firing Riley, nor does it

establish that Riley’s behavior was the kind of behavior for which the Council would

have certainly fired him in ordinary circumstances.10

10 Courts are also split over the “majority” and “deciding margin” rule in Title VII cases, but for

the reasons explained supra note 5, the Court need not choose sides.

V

Riley’s intentional-discrimination claims under Title VII and PHRA claims,

however, do not survive summary judgment. To make out a prima facie case, he must

show (1) he is a member of a protected class; (2) he was qualified for his position; (3) he

suffered an adverse employment action; and (4) the adverse action occurred under

circumstances giving rise to an inference of discrimination. Mandel v. M & Q

Packaging Corp., 706 F.3d 157, 169 (3d Cir. 2013). He cannot establish the fourth

element.

An inference of discrimination may follow from, inter alia, evidence that

similarly situated comparators were treated more favorably by their employer. See

Golod v. Bank of Am. Corp., 403 F. App’x 699, 703 n.2 (3d Cir. 2010). A plaintiff must

show that the alleged comparator was similarly situated “in all relevant respects,”

including that the comparator engaged in similar misconduct. See Durst v. City of

Phila., 798 F. App’x 710, 713 (3d Cir. 2020); Wilcher v. Postmaster Gen., 441 F. App’x

879, 881–82 (3d Cir. 2011); Doe v. Apria Healthcare Grp. Inc., 97 F. Supp. 3d 638, 645

(E.D. Pa. 2015).

Riley seeks to take the comparator route, arguing only that Riley “complained of

racial discrimination only to be told he was no longer needed, while his white coworker

[John Caponi,] who used racial slurs against him[,] continued to work.” (Resp. to

Borough to Defs. 5, ECF No. 47); (Tr. Oral Arg. 72:15–17.) But Riley makes no attempt

to show that Caponi and Riley were similarly situated in all relevant respects. In fact,

counsel conceded that they were not. (Tr. Oral Arg. 73:12–74:11.)

An appropriate Order follows.

BY THE COURT:

/s/ Gerald J. Pappert

Gerald J. Pappert, J.