Merkle v. Upper Dublin Schl. Dist.

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

5-9-2000

Merkle v. Upper Dublin Schl. Dist.

Precedential or Non-Precedential:

Docket 99-1613

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Filed May 9, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1613

LOU ANN MERKLE

Appellant

v.

UPPER DUBLIN SCHOOL DISTRICT;

UPPER DUBLIN TOWNSHIP POLICE DEPARTMENT;

MARGARET THOMAS; CLAIR BROWN, JR., DR.;

JACK HAHN, DETECTIVE

Appeal from the United States District Court

For the Eastern District of Pennsylvania

D.C. No.: 98-cv-03703

District Judge: Honorable Robert F. Kelly

Argued: January 24, 2000

Before: GREENBERG, ROTH, and ROSENN,

Circuit Judges.

(Filed: May 9, 2000)

A. Martin Herring (Argued)

A. Martin Herring & Associates

1845 Walnut Street, Suite 2240

Philadelphia, PA 19103

Counsel for Appellant

Jeffrey H. Quinn (Argued)

Duffy & Quinn

Independence Square West

The Curtis Center, Suite 1150

Philadelphia, PA 19106

Counsel for Appellees

Upper Dublin School, Margaret

Thomas, and Clair Brown

L. Rostaing Tharaud (Argued)

Marshall, Dennehey, Warner,

Coleman & Goggin

1845 Walnut Street

Philadelphia, PA 19103

Counsel for Appellees

Upper Dublin Twp. Police and

Jack Hahn

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal presents several interesting questions arising

out of an alleged constitutional tort committed by a

township school district and its superintendent in the

arrest and prosecution of one of their teachers for the

unlawful removal of school supplies. The plaintiff, Lou Ann

Merkle, formerly a teacher at the Upper Dublin School

District ("the District"), filed this action in the U.S. District

Court for the Eastern District of Pennsylvania under 42

U.S.C. S 1983. She alleged violations of her rights under the

First, Fourth, Sixth, and Fourteenth Amendments, as well

as pendent state law claims for defamation, invasion of

privacy, false arrest and malicious prosecution. The

defendants are the District, District Superintendent Dr.

Clair Brown, Jr., and Sandy Run Middle School Principal

Margaret Thomas (collectively, "the School Defendants");

and the Upper Dublin Police Department and Upper Dublin

Police Detective Jack Hahn (collectively, "the Police

Defendants").

The district court granted summary judgment in favor of

2

all defendants as to Merkle's federal law claims. The court

held that Merkle had failed to offer sufficient evidence to

establish a genuine issue of material fact as to these

claims, and also that Superintendent Brown, Principal

Thomas, and Detective Hahn were entitled to qualified

immunity. Having entered judgment for all defendants on

these federal claims, the district court refused to exercise

jurisdiction over Merkle's state law claims, and accordingly

dismissed those claims without prejudice. Merkle timely

appealed.1 We affirm the judgment of the district court as

it relates to the Police Defendants and the principal,

Margaret Thomas, but reverse as it applies to the School

District and its superintendent, Dr. Clair Brown.

I.

Background

Merkle taught art at Sandy Run Middle School in the

Upper Dublin School District of Pennsylvania. She had

been a proponent of raising multicultural awareness in the

District, and at times had been outspoken about her views.

She was a leader in a local chapter of a group known as

Seeking Educational Equity and Diversity, or SEED, which

she had helped to bring to the school district with the

approval of Superintendent Clair Brown. In addition, at a

May 1996 public meeting of the District's Board of School

Directors, Merkle spoke in support of a parent's request

that The Adventures of Huckleberry Finn be removed from

the District's required reading list because of its offensive

language with respect to African Americans. Sometime

thereafter, Superintendent Brown acceded to this request.

Margaret Thomas took over as principal of Sandy Run

prior to the start of the 1996-97 school year. Merkle

testified in her deposition in this case that shortly after

Thomas assumed the principal post, she mentioned to

_________________________________________________________________

1. The district court had jurisdiction over Merkle's federal law claims

pursuant to 28 U.S.C. SS 1331 and 1343(a)(3), and over her state law

claims pursuant to 28 U.S.C. S 1367(a). This court has appellate

jurisdiction pursuant to 28 U.S.C. S 1291.

3

Merkle that she had attended the May 1996 board meeting,

and that she felt it was a "mistake" for Merkle to publicly

challenge a District policy at that meeting.

On August 27, 1997, prior to the start of the 1997-98

school year, Merkle and fellow art teacher Nancy

Markowich were cleaning out the art supplies closet at the

Sandy Run Middle School. They apparently decided that

some of the items in the supply closet were no longer useful

and could be donated to the North Hills Community Center,

a local center serving underprivileged children. These items

included two cartons containing a total of 144 unopened

boxes of Crayola Crayons.2 At this time, Merkle was

unaware of any official school procedures for obtaining

permission to donate art supplies, and apparently believed

that such decisions were within the art teacher's discretion.

The next day, Merkle brought these items to her car, which

was parked outside the school. Margaret Thomas and

Sandy Run Assistant Principal Wanda Anderson saw

Merkle loading these boxes of supplies into her car, and

Thomas approached Merkle and asked what she was doing.

Merkle explained that Mrs. Markowich and she concluded

that these materials "weren't useful in the curriculum," and

that they intended to donate them to the North Hills

Community Center. Thomas asked if Merkle had

authorization to donate these materials. Merkle responded

that she did not, and asked what Thomas suggested.

Thomas replied that she did not know but that she would

call the District's business manager to ascertain if there

was a procedure for donations of school property. Thomas

directed Merkle that in the meantime she should bring the

art materials back inside the school. Merkle promptly

complied.

When Thomas called the business manager, he informed

her that a list of the items sought to be donated must be

compiled and submitted to the school board for approval.

Thomas also spoke with Superintendent Brown who, after

_________________________________________________________________

2. The total cost of the supplies in question is in dispute. The District

contends the supplies have a approximate value between $250 and

$400. Merkle claims, however, that the supplies are worth no more than

$24.

4

consulting the District's attorney, instructed Thomas to call

the Upper Dublin Police Department to report the incident.

Apparently Brown, however, personally called the Chief of

Police to tell him that Thomas would be calling to report a

teacher whom she had witnessed taking District property

without permission, and who had admitted that she had

done this in the past as well. Thomas informed Merkle that

Brown had instructed her to call the police, and Thomas

carried out Brown's instruction.

The Police Department assigned Detective Hahn to the

case. Hahn met with Thomas at Sandy Run Middle School

on August 29, the day after the incident. Thomas told Hahn

about the incident, and according to Hahn, explained that

the District wanted "charges filed" against Merkle. Based

solely on the information he learned from Thomas, Hahn

swore out an affidavit of probable cause for Merkle's arrest,

as well as a criminal complaint against her. In Hahn's

affidavit of probable cause, he averred that Thomas

informed him that Merkle admitted to "stealing the supplies

from the school." Hahn testified in his deposition that

Thomas actually used the word "stealing" during their

meeting, that this was the basis for his determination that

probable cause for arrest did exist, and that he did not take

any written statement from her. In Thomas's deposition in

this case, however, she testified that she did not tell Hahn

that Merkle had confessed to "stealing," but rather that

Merkle had acknowledged that she knew the art materials

were District property, and that she had not asked for or

received permission to take these materials from the school.

Nevertheless, Detective Hahn also testified that"taking

another's property without permission" meant the same

thing to him as "stealing."

That same day, a meeting took place between Merkle,

Superintendent Brown, Principal Thomas, and the District's

director of personnel. Merkle was represented at this

meeting by individuals from her teacher's union. At this

meeting, Merkle was informed that she would be suspended

from her teaching position without pay pending the

outcome of an investigation.

On September 2, Hahn arrested Merkle and charged her

with theft by taking pursuant to 18 Pa. Cons. Stat. Ann.

5

S 3921.3 The police criminal complaint also charged her

with receipt of stolen property pursuant to 18 Pa. Cons.

Stat. Ann. S 3925,4 and criminal attempt pursuant to 18

Pa. Cons. Stat. Ann. S 901.5 After her arrest, the School

District suspended Merkle from her position, and

Superintendent Brown wrote a letter to the school board

recommending that Merkle be dismissed on the ground of

"immorality."

District Justice Patricia Zaffarano held a preliminary

hearing on October 6, 1997, and bound Merkle over for

trial. Thereafter, the incident received considerable

attention in the local newspaper. The District issued a

public statement explaining that Merkle was observed

taking art supplies from Sandy Run, that Detective Hahn

had filed a criminal complaint charging Merkle with theft,

receiving stolen property, and criminal attempt to commit

theft, that a district justice had found that a prima facie

case existed on these charges, and that a trial date was

going to be set. The District refused to make additional

comment on the matter, except to say that the district

attorney would contact the newspaper when he deemed

appropriate.

Merkle filed a motion for habeas corpus in the Court of

Common Pleas for Montgomery County, and on January

16, 1998, her motion was granted and the charges against

her dismissed. Merkle pursued administrative remedies

regarding her employment status, and after 91 days of

suspension and arbitration under the collective bargaining

_________________________________________________________________

3. This provision states that "[a] person is guilty of theft if he

unlawfully

takes, or exercises unlawful control over, movable property of another

with intent to deprive him thereof." 18 Pa. Cons. Stat. Ann. S 3921(a).

4. This provision states that "[a] person is guilty of theft if he

intentionally receives, retains, or disposes of movable property of

another

knowing that it has been stolen, or believing that it has probably been

stolen, unless the property is received, retained, or disposed with intent

to restore it to the owner." 18 Pa. Cons. Stat. Ann. S 3925(a).

5. This provision states that "[a] person commits an attempt when, with

intent to commit a specific crime, he does any act which constitutes a

substantial step toward the commission of that crime." 18 Pa. Cons.

Stat. Ann. S 901(a).

6

agreement, she won reinstatement with back pay. Merkle

has since left her position at the District.

Merkle's complaint in the instant action raised numerous

federal claims. Against the Police Defendants, she claims

violation of her Fourth Amendment rights by arresting her

without probable cause, and, with respect to the Police

Department, by failing to train its detectives so as to

prevent her arrest without probable cause. Against the

School Defendants, she claims (1) violation of her First

Amendment rights by retaliating against her for her

outspokenness on the issue of multicultural awareness, (2)

violation of her Sixth Amendment rights by instituting a

malicious prosecution against her, and (3) violation of her

Fourteenth Amendment rights by defaming her, thereby

infringing on her liberty interest in her good name,

reputation, honor and integrity.6 She also raises a number

of state law claims against all defendants.

II.

Discussion

This court's review of the district court's order granting

summary judgment in favor of the defendants is plenary.

See Torres v. McLaughlin, 163 F.3d 169, 170 (3d Cir. 1998),

cert. denied, 120 S. Ct. 797 (2000). Summary judgment

may be granted where there exists no genuine issue as to

any material fact, and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). In

addressing a motion for summary judgment, the facts must

be viewed in the light most favorable to Merkle, and she is

entitled to every reasonable inference that can be drawn

from the record. See Hamilton v. Leavy, 117 F.3d 742, 746

(3d Cir. 1997). We first discuss Merkle's claims against the

Police Defendants, and then her claim against the School

Defendants.

_________________________________________________________________

6. Although Merkle's complaint alleges her constitutional claims and a

section 1983 claim separately, the district court correctly interpreted

all

of the constitutional claims as various bases supporting a claim arising

under section 1983.

7

A.

The Police Defendants

1.

Detective Hahn

On the appeal to this court, Merkle contends that the

district court erred in granting summary judgment in favor

of the Police Defendants on her Fourth Amendment claim

that Detective Hahn arrested her without probable cause.

"Probable cause to arrest exists when the facts and

circumstances within the arresting officer's knowledge are

sufficient in themselves to warrant a reasonable person to

believe that an offense has been or is being committed by

the person to be arrested." Orsatti v. New Jersey State

Police, 71 F.3d 480, 482 (3d Cir. 1995). Generally, "the

question of probable cause in a section 1983 damage suit

is one for the jury." Montgomery v. De Simone , 159 F.3d

120, 124 (3d Cir. 1998); see also Sharrar v. Felsing, 128

F.3d 810, 818 (3d Cir. 1997); Deary v. Three Un-Named

Police Officers, 746 F.2d 185, 190-92 (3d Cir. 1984). This is

particularly true where the probable cause determination

rests on credibility conflicts. See Sharrar , 128 F.3d at 818;

Deary, 746 F.2d at 192. However, a district court may

conclude "that probable cause exists as a matter of law if

the evidence, viewed most favorably to Plaintiff, reasonably

would not support a contrary factual finding," and may

enter summary judgment accordingly. Sherwood v.

Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997).

In Sharrar v. Felsing, 128 F.3d, 810, 817-18 (3d Cir.

1992) this court reiterated the well-established rule that

probable cause is defined in terms and circumstances

sufficient to warrant a prudent man in believing that the

suspect had committed or was committing a crime. Id. It is

the function of this court to determine whether the

objective facts available to Detective Hahn at the time he

arrested Merkle were sufficient to justify a reasonable belief

that she had committed a theft. See id. at 818; United

States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984), cert.

8

denied, 471 U.S. 1018 (1985). In Illinois v. Gates, 462 U.S.

213 (1983), the Court adopted a "totality of the

circumstances" approach in assessing the existence of

probable cause to issue a search warrant and "identified a

`common sense' aspect to the issue of probable cause."

(Quoted in Glasser, 750 F.2d at 1201.) Moreover, since this

appeal comes to us from an order granting summary

judgment in favor of the defendants, the facts must be

considered in the light most favorable to Merkle. See Gallo

v. City of Philadelphia, 161 F.3d 213, 219 (3d Cir. 1998).

We, therefore, examine the evidence produced by Merkle

to determine whether she has raised a genuine issue of

material fact as to whether Detective Hahn had probable

cause to arrest her. Moreover, the common law

presumption raised by a magistrate's prior finding that

probable cause exists does not apply to section 1983

actions.

The issue of whether Detective Hahn had probable cause

to arrest rests almost entirely on his knowledge of what

Merkle stated to Thomas when the latter interrupted the

removal of the supplies. Merkle's version of what occurred

is corroborated by Thomas. We therefore have a situation

where Merkle was in the process of removing art teaching

supplies which she and her colleague, Markowich,

considered of no use in their curriculum. After having been

informed of prior unsuccessful efforts to ascertain whether

other teachers in the school had use for the unopened

crayons, Merkle decided to turn over the supplies to the

North Hills Community Center. In loading the supplies into

her car for that purpose, Merkle assumed that as an art

teacher, she had the discretion and authority to do this.

When questioned by Thomas, Merkle promptly and

candidly informed her that the supplies, in her mind, were

useless and that she believed she implicitly had the

authority to dispose of them. When Thomas questioned

Merkle's authority to do this, Merkle promptly returned the

supplies to the school building. Thomas did not regard the

removal as a theft.

If "at the moment the arrest was made . . . the facts and

circumstances within [the defendant's] knowledge and of

9

which [he] had reasonably trustworthy information were

sufficient to warrant a prudent man in believing" that the

plaintiff had violated the law, probable cause is present.

Hunter v. Bryant, 502 U.S. 224, 228 (1991) (quoting Beck

v. Ohio, 379 U.S. 89, 91 (1964)). In challenging Detective

Hahn's determination that probable cause to arrest existed,

Merkle has the burden of showing, by a preponderance of

the evidence, that (1) Hahn knowingly and deliberately, or

with a reckless disregard for the truth, made false

statements or omissions in his affidavit of probable cause

that create a falsehood in applying for an arrest warrant;

and (2) such statements or omissions are material to the

finding of probable cause. See Franks v. Delaware, 438

U.S. 145, 171-72 (1978); Sherwood, 113 F.3d at 399.

In his affidavit, Hahn stated that Principal Thomas told

him that Merkle had admitted to "stealing" the art supplies.

In his deposition in this case, Hahn testified that had

Merkle not admitted improper conduct to Thomas, he

would not have concluded that probable cause existed to

arrest. As the district court acknowledged, however, there is

conflicting testimony on the record about the accuracy of

Hahn's description of Merkle's admission. Although Hahn

testified that Thomas told him Merkle confessed to

"stealing," Thomas testified that she merely told him that

Merkle admitted to taking school property without

permission. Detective Hahn's testimony on this point is

somewhat confused. He testified that for his purposes,

"stealing" meant the same thing to him as taking another's

property without permission. However, he also testified that

had Thomas not used the word "stealing," he would not

have concluded that there existed probable cause to arrest

Merkle. The district court found that this factual dispute

was immaterial, holding that "when an individual . . . is

found loading her car with materials that do not belong to

her, and reliable witnesses attest to this, a police officer

who gets the report has probable cause to arrest." (Op. at

11). Specifically, the court held that these circumstances

were sufficient to support an arrest for the crime of theft by

taking, which requires only the taking of property with the

intent to deprive the owner thereof. (Op. at 12). 7

_________________________________________________________________

7. The district court did not address whether Hahn had probable cause

to arrest Merkle for the other crime with which she was charged, receipt

10

Viewing the facts in the light most favorable to Merkle,

this court must assume that Thomas told Hahn merely that

Merkle admitted that she had no permission to take the

property she was found loading into her car. The question

therefore becomes whether a reasonable person in Hahn's

position could have concluded, based on this knowledge,

that Merkle had committed a crime. Merkle argues that the

district court's reasoning is flawed because the mere report

of a witness that an individual was seen loading her car

with materials that did not belong to her does not establish

probable cause in all cases. For example, a teacher might

be taking home materials belonging to the school to prepare

class lessons. This, Merkle, contends, does not evidence an

intent to deprive the District of its property. However,

Thomas also told Hahn of Merkle's announced intention to

give the property to the North Hills Community Center.

Thus, Hahn possessed knowledge of a credible report from

a credible eyewitness that Merkle did intend to deprive the

District of its property. Accordingly, a reasonable jury could

not find that Hahn lacked knowledge of sufficient facts to

establish probable cause to arrest Merkle for the crime of

theft by taking.8

_________________________________________________________________

of stolen property. Arguably, probable cause to arrest Merkle for this

crime did not exist. This crime requires that the defendant must have

known or believed the property at issue was "stolen." See supra note 3.

There was no indication that Merkle viewed the art supplies in this

manner. Rather, she appears to have genuinely believed that she had

discretion to donate the property. Regardless, if Merkle's arrest on the

charge of theft by taking was proper, we will not invalidate it merely

because she was also improperly charged with the additional crime.

Although a different conclusion may be warranted if the additional

charge results in longer detention, higher bail, or some other added

disability, there is no evidence in this record that the charge of receipt

of stolen property had such effect.

8. Merkle also contends that Hahn lacked probable cause because he

failed to interview other witnesses, such as Vice Principal Anderson, art

teacher Markowich, or Merkle herself, prior to making the arrest.

However, Hahn had every reason to believe a credible report from a

school principal who witnessed the alleged crime. This report alone

sufficiently established probable cause. Hahn was not required to

undertake an exhaustive investigation in order to validate the probable

cause that, in his mind, already existed. See Gramenos v. Jewel Cos.,

Inc., 797 F.2d 432, 439 (7th Cir. 1986), cert. denied, 481 U.S. 1028

(1987); Morrison v. United States, 491 F.2d 344, 346 (8th Cir. 1974).

11

2.

The Police Department

In her complaint, Merkle also charged the Upper Dublin

Township Police Department with violating her Fourth

Amendment rights. Under section 1983, municipal liability

arises only when a constitutional deprivation results from

official custom or policy. See Monell v. Department of Social

Servs. of City of New York, 436 U.S. 658, 690-91 (1978);

Montgomery, 159 F.3d at 126-27 (citing City of Canton, Ohio

v. Harris, 489 U.S. 378, 388 (1989)). Merkle makes no

argument on appeal regarding her claim that the Upper

Dublin Police Department violated her Fourth Amendment

rights by failing to properly train Detective Hahn. It appears

that Merkle has waived this claim, and therefore, this court

need not address it. See Warren G. v. Cumberland County

Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (issue waived if

not raised in party's opening brief).

B.

The School Defendants

Merkle also claims that the School Defendants (1)

maliciously prosecuted her in violation of the her Sixth

Amendment rights, (2) retaliated against her for her

outspoken support of multiculturalism in violation of her

First Amendment rights, and (3) caused harm to her

reputation in violation of her Fourteenth Amendment

rights.

Merkle contends that the School Defendants violated her

constitutional rights by initiating and pursuing her

prosecution even though Superintendent Brown and

Principal Thomas knew that she had committed no crime.9

Although the charges against Merkle were filed and the

actual prosecution conducted by Detective Hahn, 10 both

_________________________________________________________________

9. Based on Merkle's complaint, her claims against the District appear to

be based on the acts of Superintendent Brown as the District's

policymaking official.

10. Apparently, in cases of this type, the investigating detective often

represents the Commonwealth at the preliminary hearing. Consequently,

Detective Hahn acted as the prosecutor at Merkle's preliminary hearing.

12

Hahn and the Chief of Police testified that the police

department would not have pressed charges and pursued

the criminal prosecution unless (1) the victim requested it

and (2) it believed it had probable cause to do so. The Chief

of Police further testified that once charges werefiled, those

charges would not be withdrawn unless the victim so

requested. It is undisputed that in his initial telephone call

to the Chief of Police, Superintendent Brown said he

wanted criminal charges filed against Merkle if sufficient

evidence existed. In her initial meeting with Detective Hahn,

Thomas informed him that Superintendent Brown wanted

to press charges against Merkle. Prior to the preliminary

hearing, Hahn asked Superintendent Brown if he still

wanted to go through with the prosecution, and Dr. Brown

replied that he did. Therefore, the School Defendants, not

just the Police Defendants, are responsible for Merkle's

prosecution.

The district court analyzed Merkle's S 1983 malicious

prosecution claim based on the elements of the common

law tort of malicious prosecution. In Pennsylvania, a

plaintiff alleging common law malicious prosecution must

show (1) the defendants initiated a criminal proceeding; (2)

the criminal proceeding ended in the plaintiff 's favor; (3)

the proceeding was initiated without probable cause; and

(4) the defendants acted maliciously or for a purpose other

than bringing the plaintiff to justice. See Hilfirty v.

Shipman, 91 F.3d 573, 579 (3d Cir. 1996). The court held

that Merkle's claim failed on the third element, relying on

its holding that Detective Hahn had probable cause to

arrest Merkle.

Although the parties do not so contend, the district

court's analysis appears not to have been abreast of recent

developments in the law. It was at one time the law of this

circuit that a plaintiff alleging a section 1983 claim for

malicious prosecution would be required only to show the

elements of the common law tort. See Lee v. Mihalich, 847

F.2d 66, 69-70 (3d Cir. 1988). However, in the aftermath of

the Supreme Court's decision in Albright v. Oliver, 510 U.S.

266 (1994), this court has acknowledged that this is no

longer the case. In Albright, the Court held that a claim of

malicious prosecution under section 1983 cannot be based

13

on substantive due process considerations, but instead

must be based on a provision of the Bill of Rights providing

"an explicit textual source of constitutional protection." Id.

at 272 (citation and internal quotation marks omitted).

This court has since noted that Albright"casts doubt" on

prior circuit precedent adopting common law malicious

prosecution as the test in a S1983 action. Gallo v. City of

Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998). The court

in Gallo analyzed whether a malicious prosecution claim

arose from the Fourth Amendment, i.e., whether the

prosecution worked a post-indictment "seizure" on the

S 1983 plaintiff. The court concluded that the malicious

prosecution at issue did work a post-indictment seizure

where the plaintiff 's liberty "was constrained in multiple

ways for an extended period of time." Id. at 225.

Specifically, the plaintiff was subjected to travel restrictions

and was compelled to attend a number of court hearings

over an eight-and-a-half month period. Id. Accordingly, the

Gallo court reversed the district court's grant of summary

judgment for the defendants, and remanded for further

proceedings.

We have expanded on the altered nature of the post-

Albright malicious prosecution landscape in Torres v.

McLaughlin, 163 F.3d 169 (3d Cir. 1998). The Torres court

read Albright as standing for the proposition that a section

1983 malicious prosecution claim could be based on a

constitutional provision other than the Fourth Amendment,

including the procedural component of the Due Process

Clause, so long as it was not based on substantive due

process. Id. at 173.11

Merkle predicates her constitutional malicious

prosecution claim on the First and Sixth Amendments. We

turn to her Sixth Amendment claim first because it requires

only a minimum of discussion. It is difficult to understand

_________________________________________________________________

11. This court did not immediately recognize that Albright changed the

manner in which S 1983 malicious prosecution claims must be analyzed.

For example, in Hilfirty v. Shipman, decided two-and-a-half years after

Albright, we continued to adhere to the pre-Albright common law analysis

of malicious prosecution claims brought under S 1983. See 91 F.3d at

579.

14

how the Sixth Amendment is implicated here. That

amendment affords individuals rights to a speedy trial, to

an impartial jury, to know the nature and cause of a

criminal accusation, to be confronted with the witnesses

against them, and to effective assistance of counsel. Merkle

makes no effort to relate her claim to the rights afforded by

the Sixth Amendment. She does, however, explain that she

was deprived of liberty by reason of the prosecution,

because she was compelled "to attend court hearings and

her job [was] placed in jeopardy as a result of being charged

with a crime of moral turpitude." (Appellant's Br. at 25 n.9).

The latter argument -- that her job was placed in jeopardy

because she was charged with a crime of moral turpitude --

seems akin to a substantive due process argument. Indeed,

no constitutional provision other than the substantive

component of the Due Process Clause even arguably affords

the protection Merkle asserts. As noted above, however, the

Supreme Court held in Albright that a violation of

substantive due process is no basis for a malicious

prosecution claim brought pursuant to section 1983.

Merkle's former argument -- that she was compelled to

attend court hearings by reason of the false prosecution --

seems like a Fourth Amendment seizure argument similar

to the argument considered by this court in Gallo. Merkle

has failed to assert the Fourth Amendment as the basis for

her claim against the School Defendants, however, even

though this court gave her the opportunity to do so at oral

argument. We therefore do not address this argument.

Merkle next claims that the School Defendants instituted

a criminal prosecution against her and suspended her from

her teaching position to retaliate for her outspoken

statements in support of multicultural awareness. Merkle's

retaliation claim is analyzed under a three step, burden-

shifting methodology. First, Merkle must demonstrate that

her speech was protected. For purposes of this appeal, the

parties concede that it was. Second, Merkle must show that

her speech was a motivating factor in the alleged retaliatory

action. Third, the School Defendants may defeat Merkle's

claim by establishing that it would have taken the same

adverse action against Merkle even in the absence of her

protected speech. See Mt. Healthy City Sch. Dist. Bd. of

15

Educ. v. Doyle, 429 U.S. 274, 287 (1977); Latessa v. New

Jersey Racing Comm'n, 113 F.3d 1313, 1319 (3d Cir. 1997).

The district court granted summary judgment for the

School Defendants on the retaliation claim. The court found

that the School Defendants would have suspended Merkle

from her teaching position, even absent her speech, based

on their discovery that she was putting school supplies into

her car for which she was arrested. Merkle correctly points

out that the district court defined the alleged retaliatory

action too narrowly, focusing only on the District's decision

to suspend Merkle. Merkle's claim of retaliation is directed

at the whole course of conduct by the School Defendants in

persisting to press criminal charges against her instead of

handling the matter administratively.

That course of conduct grew out of a conversation

between Thomas and Merkle when Thomas saw Merkle

carrying openly and in daylight a carton of school supplies

to her car. It is, however, the conduct which occurred after

this that is significant: Superintendent Brown's telephone

call to his friend, the Chief of Police, in which, despite

Brown's knowledge that Merkle intended to donate the

supplies to the North Hills Community Center, Brown

expressed his desire for an investigation and prosecution;

Brown's persistence despite the Chief 's query"are you sure

you want to do this?"; the failure of the District to consider

taking administrative action, rather than instituting

criminal prosecution, against Merkle for what the police

considered to be an internal school district matter,

particularly in view of the lack of a school district policy on

the disposal of surplus supplies; Brown's affirmation to

Hahn before the preliminary hearing that Brown still

wanted to prosecute Merkle; and Brown's recommendation

to the school board that Merkle be dismissed on the ground

of "immorality."

Additional conduct which we find significant is the

statement Brown made to the press, after consulting with

the District's solicitor, apparently in response to the events

at a school board meeting at which approximately two

hundred community residents protested Merkle's

suspension and prosecution. The press release denied that

the crayons could not be used by the District. It explained

16

that the school administration could not comment at the

meeting on the action it had taken because, the District

Justice having found a prima facie case on charges of theft,

receipt of stolen property and criminal attempt at theft, "it

is fundamental and basic to fairness and legal ethics that

no comment by the parties be made in a criminal

proceeding until the matter is adjudicated." The statement,

however, gave no information on Merkle's version of the

incident.

Brown claims to have acted out of concern that this

incident was part of a pattern of unauthorized disposition

of District property to the North Hills Community Center

and elsewhere. Indeed, Thomas did report to Brown that

the two cartons of crayons she found Merkle loading into

her car were unopened.12 Under these circumstances,

however, whether Brown acted out of a concern that

valuable supplies were being stolen or whether he

criminally prosecuted Merkle and terminated her contract

with the District in retaliation for her activities in promoting

multicultural awareness is a disputed question of fact for a

jury and not a question of law for the trial court.

Merkle charges that the District embarked on its course

of malicious prosecution because of her activities with

SEED, which were protected, inter alia, by the First

Amendment. Merkle played a leadership role in SEED and

was a member of its academic and cultural sensitivity task

force. SEED provided books and films to teachers to train

them on diversity issues before problems arose in the

classroom. It was through SEED that the protest was made

to the school board of having "Huckleberry Finn" as

required reading. After Merkle stated at a school board

meeting that "Huckleberry Finn" should be"pulled,"

_________________________________________________________________

12. Merkle was under the impression that the crayons were the result of

"a gross over-order" about eight years before. She testified that over a

course of years, Nancy Markowich put announcements in the daily

bulletin that goes out to all teachers in the Sandy Run School offering

the crayons, but no one requested them. In addition to the crayons,

there was some dry powder paint, a jar or two of old tempera paint, and

some dry glue. The cart with usable general supplies was rolled into the

general supply closet for retention.

17

Thomas told Merkle that "when your school had a policy, as

a teacher it's a mistake to speak out against it publicly."

Our review of this entire course of events convinces us

that Merkle has not produced evidence that Thomas's

actions, including her report to the superintendent of the

removal of supplies, amounted to retaliatory action against

Merkle. For that reason, we will affirm the district court's

order granting summary judgment for Margaret Thomas.

We differ with the district court, however, with respect to

Merkle's claims against the Upper Dublin School District

and its superintendent, Dr. Clair Brown. We believe that

whether these defendants' actions against Merkle were

retaliatory is, for purposes of summary judgment,

influenced by the strength of Merkle's claim against them

for common law malicious prosecution.

We begin our analysis as to the District and Brown with

the threshold question of whether the presence of probable

cause for Detective Hahn to make the arrest also imputes

probable cause in behalf of the School Defendants to the

criminal prosecution. The action of the School District in

initiating the criminal proceedings and pressing unfounded

criminal charges against Merkle can render the District

liable for its major role in a malicious prosecution.

Although the police may have acted on the reasonable belief

that they had probable cause to arrest Merkle, whether the

School Defendants had probable cause to pursue Merkle's

prosecution is an independent inquiry, the outcome of

which is not dictated by our holding that Hahn had

probable cause to arrest Merkle. Hahn acted only on what

Principal Thomas told him. As instigators of the arrest,

however, it is possible that the District and Brown were in

possession of additional information, not provided to

Detective Hahn, that would negate any probable cause they

may otherwise have had to prosecute Merkle. Thus, in

analyzing the common law claim of malicious prosecution,

we must consider the facts known to the District and its

superintendent to determine whether they had probable

cause to prosecute. See Simmons v. Poltrone, No. Civ. A. 96-

8659, 1997 WL 805093, at *8 n.6 (E.D. Pa. Dec. 17, 1997);

Doby v. Decrescenzo, No. Civ. A. 94-3991, 1996 WL

510095, at *13 (E.D. Pa. Sept. 9, 1996); Hess v. County of

Lancaster, 514 A.2d 681, 683-84 (Pa. Commw. Ct. 1986).

18

On the basis of the facts as outlined above, see supra at

17, we conclude that a jury could find that Brown, and

through him the School District, acted maliciously in

pressing unfounded criminal charges against Merkle and

could reasonably infer that Merkle's protected speech was

a motivating factor in this course of action. Where a

reasonable inference can be drawn that an employee's

speech was at least one factor considered by an employer in

deciding whether to take action against the employee, the

question of whether the speech was a motivating factor in

that determination is best left to the jury. See Watters v.

City of Philadelphia, 55 F.3d 886, 891 n.3 (3d Cir. 1995);

Johnson v. Lincoln Univ. of Commonwealth System of Higher

Educ., 776 F.2d 443, 454 (3d Cir. 1985); Clemens v.

Dougherty County, Georgia, 684 F.2d 1365, 1368-71 (11th

Cir. 1982).

We believe the evidence of Merkle's successful challenge

to the School District's inclusion of "Huckleberry Finn" in

the school's curriculum at an open meeting and her

outspokenness about the need for greater cultural

sensitivity in the District is sufficient on the facts presented

to raise such questions of fact. When this arguably

disfavored protected speech is coupled with (1) Brown's

determination to pursue a criminal prosecution even

though the objective evidence and police comments

indicated that the matter should be pursued

administratively, and (2) his deliberate recommendation

that Merkle be permanently discharged for "immorality" as

opposed to simply pursuing administrative alternatives

such as "verbal counseling at the time of the incident or at

most a written warning" (which the arbitrator later found

would have been an appropriate, proportional response),

room for the inference of discriminatory animus expands

considerably.

An arrest is a serious matter, especially an arrest of a

public school teacher whose professional career

instantaneously is put in jeopardy by stigmatic public

charges. The arrest humiliates the teacher before her

pupils, her teaching colleagues and the public. To arrest a

teacher on the "scanty grounds" adduced here, Albright v.

Oliver, 975 F.2d 343, 345 (7th Cir. 1992), especially when

19

there were other less oppressive options, is shocking. The

supplies, even under the District's estimate of their value,

were not of sufficient moment to warrant such drastic and

irreparable action. If, in their disposition, Merkle exceeded

her discretionary authority or even violated her presumptive

authority,13 there were reasonable alternatives by which the

District could exercise control and discipline and give each

teacher appropriate notice of school policy for disposing of

useless or surplus supplies. Under these circumstances,

and especially in the face of doubts on the part of the police

officers, a jury could reasonably find that the

Superintendent's decision to arrest and his deliberate

decision to recommend to the School Board that Merkle's

contract be terminated on the basis of "immorality" was

motivated by a desire to retaliate against her for her

protected activities and not by an interest in protecting the

unauthorized removal of supplies. A jury could reasonably

find that the underlying motivation for the discharge lay

embedded in Merkle's temerity to advocate her

multicultural program to the School District. In any event,

these were questions of fact for jury determination, not

questions of law for the court.

_________________________________________________________________

13. Dr. Brown acknowledged that the faculty handbook does not set

forth any policy concerning the disposal of useless or surplus supplies.

He testified on deposition that not every single supply item given to a

teacher requires Board approval, that some "are thrown out or

discarded."

He further testified:

Q: So your position is that when an item becomes unusable it

should be kept, and then you need board approval for that?

A: I didn't say that. I said when an item becomes disposable or in

the condition to be disposed of, there's an orderly process to be

disposed of.

Q: And some of that is within the teacher's discretion; correct?

A: It's in the teacher's discretion to recommend the disposal of

materials, certainly.

Q: And even to dispose of them, isn't it?

A: I guess that's a judgment that a teacher can make, sure.

20

The dissent rests entirely on the conclusion that Merkle

actually committed the crime of theft when "she unlawfully

took or exercised control over [the property] with the

admitted intent to deprive the School District of it."

Concurrence and Dissent at 26 and 32. This conclusion, it

believes, is commanded by language in Gottesfeld v.

Mechanics & Traders Insurance Co., 173 A.2d 763, 766 (Pa.

Super. Ct. 1961). Significantly, the Gottesfeld case relied

upon the Pennsylvania Supreme Court's decision in

Thomas v. Kessler, 5 A.2d 187 (Pa. 1939). In Thomas, the

plaintiff, a beneficiary of a trust which owned shares of a

newspaper, went to the newspaper's offices and took some

stationary, believing she had the right to do so by virtue of

her interest in the trust. She was charged by the

newspaper's president with larceny, and she in turnfiled a

malicious prosecution action against the president. The

Court of Common Pleas entered a compulsory nonsuit in

the malicious prosecution action, holding that the

newspaper's president had probable cause to believe the

plaintiff had committed a theft. On appeal, the

Pennsylvania Supreme Court reversed and remanded for

trial. The Supreme Court held:

When the facts and circumstances . . . are considered,

it is obvious that no larceny was committed, that there

was no felonious intent in plaintiff 's mind , that she was

not stealing the few sheets of paper, and that she took

it because she thought, mistakenly perhaps, that she

had the right to.

Id. at 188 (emphasis added). The court summarized its

holding as follows: "It has been repeatedly held that when

one takes property under a claim of right, even though

mistaken, larceny is not committed." Id.; accord Penn-Air,

Inc. v. Indemnity Ins. Co. of N. Am., 269 A.2d 19, 22-24 (Pa.

1970); Commonwealth v. Compel, 344 A.2d 701, 702-03

(Pa. Super. Ct. 1975). See also Commonwealth v. Sleighter,

433 A.2d 469, 471 (Pa. 1981).

The Thomas case bears a striking resemblance to the

facts at hand. When Merkle removed the art supplies from

the supply closet and decided to donate them to the North

Hills Community Center, she too did so without "felonious

intent." Indeed, she believed that as an art teacher, she had

21

discretion to discard property she believed to be useless or

give it to a non-profit institution that might possibly use it.

In other words, she believed she had the District's implied

consent to dispose of the property under these

circumstances and "that she had the right" to do what she

did. The School Defendants do not dispute this perception

of Merkle's mental state at the time she removed the art

supplies. Thus, based on the undisputed facts, Merkle

cannot be said to have committed the crime of theft by

taking.

The dissent is concerned that under the majority's view,

employers will be reluctant to bring criminal proceedings

against an employee even when the employee is found

violating the criminal law. Concurrence and Dissent at

30-32. We believe this fear is groundless. An employer

incurs no risk of a suit for malicious prosecution when the

employer has probable cause to believe that its employee

had committed a criminal violation. Here, however, the

employer never had cause to find a criminal violation,

because it knew that Merkle acted without criminal intent.

The dissent assumes that Merkle committed a criminal

violation, an assumption that is negated by the facts, the

circumstances, and the law.

Finally, Merkle claims that as to the School District and

Dr. Brown, their actions willfully and recklessly caused

injury to her "good name, reputation, honor and integrity,"

in which she had a liberty interest under the Fourteenth

Amendment. Specifically, she points to (1) Dr. Brown's

report to the Chief of Police that Merkle had been caught

loading District property into her car without authorization,

and noting his concern that this had been going on for

some time, and (2) the District's statement to the local

newspaper regarding the Merkle prosecution claimed that

the art supplies were valuable and usable to the District,

and described the District as "the party offended against,"

but omitted mention of Merkle's explanation that she

believed the supplies were useless and unnecessary to the

curriculum, and that she intended to donate them to the

North Hills Community Center. (Appellant's Br. at 33-34).

This court has warned against "equat[ing] a state

defamation claim with a cause of action under section 1983

22

predicated on the Fourteenth Amendment." See Kelly v.

Borough of Sayreville, 107 F.3d 1073, 1078 (3d Cir. 1997).

Thus, the Fourteenth Amendment does not protect injury to

reputation alone, Paul v. Davis, 424 U.S. 693, 701-10

(1976); Clark v. Township of Falls, 890 F.2d 611, 619 (3d

Cir. 1989). However, Merkle may show that her Fourteenth

Amendment rights were violated if the harm to her

reputation occurred while she was being deprived of

another constitutional right. See Ersek v. Township of

Springfield, 102 F.3d 79, 83 n.5 (3d Cir. 1996); Robb v. City

of Philadelphia, 733 F.2d 286, 294 (3d Cir. 1984).

The district court held that, because it had dismissed all

of Merkle's other constitutional claims, she could not show

that any false statements by the District were made in the

course of another constitutional violation. However,

because we believe that there is a question of fact for a jury

as to whether Brown was motivated by Merkle's exercise of

her First Amendment right of speech to initiate a baseless

prosecution, she may be able to adduce evidence of an

injury to her reputation while in the exercise of a

constitutional right. The truth or falsity of several of the

allegedly defamatory statements identified by Merkle are

disputed issues of fact and these too are questions for a

jury. See Ersek, 102 F.3d at 84 & n.7. In light of our

determination that it was error for the district court to

grant the motion of the District and Dr. Brown for

summary judgment on the First Amendment claim, the

disposition of Merkle's claim of injury to her reputation will

also be reversed and remanded.

The district court alternatively held that Superintendent

Brown was entitled to qualified immunity for his action.

Government officials performing discretionary functions . . .

are shielded from liability for civil damages insofar as their

conduct does not violate clearly established constitutional

rights of which a reasonable person would have known."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1992). A defendant

is entitled to qualified immunity if reasonable officials in

the defendant's position at the relevant time "could have

believed, in light of clearly established law, that their

conduct comported with established legal standards."

Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726

23

(3d Cir. 1989), cert. denied, 493 U.S. 1044 (1990). The

parties do not dispute that the relevant law was clearly

established at the time of Brown's actions. Thomas, who

first reported the removal of the supplies, never suggested

prosecution or that Merkle's conduct amounted to theft.

Similarly, Coleman, the business manager, considered it a

matter merely requiring Board approval.

An objective and reasonable assessment under the

circumstances disclosed at most a mistake in judgment or

probable exercise of excessive authority, but not a criminal

intent to steal. The Chief of Police and Detective Hahn both

raised warning lights for criminal prosecution; Brown,

however, was determined to arrest and to persist in the

prosecution. In view of our analysis that Merkle's version of

the facts supports the proposition that Brown, and through

him the District, maliciously prosecuted Merkle in

retaliation for her protected First Amendment activities, it

follows that Brown is not entitled to qualified immunity.

Viewed objectively, the act of arrest followed by the refusal

to withdraw the charges was unreasonable.

III.

Conclusion

Accordingly, the order of the district court granting

summary judgment to the Police Defendants and to

Margaret Thomas, the school principal, will be affirmed.

The order granting summary judgment to the School

District and its superintendent, Dr. Clair Brown, Jr., and

alternatively granting Dr. Brown qualified immunity, will be

reversed and the case remanded for appropriate

proceedings consistent with this opinion. Each side to bear

its own costs.

24

GREENBERG, Circuit Judge, concurring and dissenting.

I concur in and join the majority opinion to the extent

that it affirms the order of the district court granting

summary judgment but to the extent that it reverses, I

dissent. I think that it is perfectly plain that Merkle was the

only person who did anything wrong in the matters involved

in this litigation. Under 18 Pa. Cons. Stat. Ann.S 3921(a)

(West 1983), "[a] person is guilty of theft if he unlawfully

takes, or exercises unlawful control over, movable property

of another with intent to deprive him thereof." It is clear

that Merkle, without any authority, took 144 unopened

boxes of Crayola Crayons belonging to the School District

and was loading them in her car when Thomas interrupted

her. Indeed, even on this appeal Merkle acknowledges that

"Prior to this incident, [she] was unaware of any official

procedure applicable" to the disposal of property. Br. at 5-

6. Thus, surely she should not have taken the property, as

she could not take her lack of knowledge of a procedure on

how to dispose of property to mean that she had a license

to determine what property was unneeded and to whom the

district should donate it.

In this regard, I emphasize the following. In Merkle's brief

she never contends that she asked the School Defendants

for permission to donate the crayons to the North Hills

Community Center before she removed them. Rather, she

only contends that no other teacher at the Sandy Run

Middle School expressed interest in the crayons. See br. at

5. Thus, she could not have known whether other schools

in the district could have made use of the crayons, perhaps

in a lower grade level than the levels in the middle school

where she taught. Moreover, when Merkle removed the

crayons she could not know whether the School District, if

it determined to dispose of them, would have considered

the community center as the appropriate donee. Rather, for

all she knew, the School District would have preferred to

give away its property to a different recipient.

It is true, of course, that when Thomas interrupted

Merkle when she was taking the property she returned it to

the school, and the majority makes much of this conduct.

But I really do not understand why it does so. After all,

what else could Merkle have done? What the majority does

25

not consider is that except for the fortuitous circumstance

that Thomas observed her taking the crayons, the School

Defendants never might have been aware that she took

them. Of course, Merkle already had completed the offense

before she returned the property as she unlawfully took or

exercised control over it with the admitted intent to deprive

the School District of it. In the circumstances, there is not

even a scintilla of doubt but that the School Defendants

had probable cause as a matter of law to believe that

Merkle committed a crime when she removed the crayons

which Merkle could not erase with her after-the-fact

conduct and explanations. See Gottesfeld v. Mechanics and

Traders Ins. Co., 173 A.2d 763, 766 (Pa. Super. Ct. 1961)

("Larceny, by definition, is taking or carrying away the

property of another with intent to convert it to the use of

someone other than the owner without his consent.").

The majority cites Thomas v. Kessler, 5 A.2d 187, 188

(Pa. 1939), for the principle that "[i]t has been repeatedly

held that when one takes property under a claim of right,

even though mistaken, larceny is not committed." That

principle, however, is not applicable here as Merkle, unlike

the plaintiff in Thomas, never has made"a claim of right"

to the property involved. Quite to the contrary she always

has acknowledged that the School District was the owner of

the crayons. She only has claimed that she had the power

to give away the property. Thus, the facts here, rather than

bearing "a striking resemblance" to those in Thomas, as the

majority suggests, maj. op. at 21, plainly are

distinguishable from those in that case. The same is true of

the other cases the majority cites as they, too, were

concerned with the meaning of "claim of right." Therefore

none of the cases the majority cites can detract from the

circumstance that the School Defendants had probable

cause to believe that Merkle was guilty of a theft.

I recognize, of course, that the Court of Common Pleas of

Montgomery County on Merkle's habeas corpus petition

found the facts failed to show by the preponderance of the

evidence that Merkle engaged in criminal activity, and

suggested that if she was at fault that the matter be

handled administratively. Nevertheless that finding and

suggestion cannot change the circumstance that the School

26

Defendants had probable cause to believe that she

committed a theft. Similarly, the view of the majority that

the matter should have been handled administratively does

not change the fact that the School Defendants had

probable cause to believe a crime had been committed.1

Where, then, are we? Merkle contends that the district

court "incorrectly determined the issue of probable cause,

since the facts in dispute created an issue solely reserved

for jury resolution." Br. at 10. Obviously, the majority

agrees. But there is no issue of fact for whatever Merkle's

state of mind, the School Board had probable cause to

believe that she had committed an offense. I emphasize in

this regard that Merkle was donating unopened boxes of

crayons to the community center, items which surely had

some value for Merkle was not throwing them away. Thus,

even without regard for the enhanced requirements under

Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807 (1994), for

a 42 U.S.C. S 1983 malicious prosecution action, see Gallo

v. City of Philadelphia, 161 F.3d 217, 221-22 (3d Cir. 1998),

the malicious prosecution aspect of this case should fail.2

_________________________________________________________________

1. Considering the rather minor nature of the offense here, I agree that

an administrative disposition of the matter would have been appropriate.

But my view no more than that of the Common Pleas Court or majority

can detract from the fact that the School Defendants had probable cause

to believe that Merkle had committed a criminal offense.

2. Merkle correctly points out that in Gallo we indicated that in a

section

1983 malicious prosecution action a plaintiff might not be required to

establish all of the elements of the common law tort of malicious

prosecution. See Gallo, 161 F.3d at 222 n.6; but see Hilfirty v. Shipman,

91 F.3d 573, 579 (3d Cir. 1996) ("In order to state a prima facie case for

a section 1983 claim of malicious prosecution, the plaintiff must

establish the elements of the common law tort as it has developed over

time."). Nevertheless, inasmuch as the majority includes an analysis of

whether the School Defendants had probable cause to initiate the

criminal proceedings and the parties have briefed that issue, I, too, will

analyze the case on that basis. In any event, I believe that ultimately

the

courts will hold that a person will not have committed the constitutional

tort of malicious prosecution if he had probable cause to initiate the

criminal proceedings leading to the civil action. On the other hand,

however, depending on the facts developed, it would be possible to

sustain a First Amendment retaliation case predicated on the institution

of criminal proceedings even though the defendant had probable cause

to initiate the proceedings.

27

Merkle also argues that the School Defendants instituted

criminal and administrative proceedings against her in

retaliation for her exercise of her First Amendment rights.

Under Mt. Healthy City School District Board of Education v.

Doyle, 429 U.S. 274, 97 S.Ct. 568 (1977), where, as here,

a plaintiff accuses public actors of violating her First

Amendment rights by retaliating against her by reason of

First Amendment protected activity, a shifting burden of

proof analysis is required. First, the plaintiff must

demonstrate that she has engaged in First Amendment

protected activity. Undoubtedly Merkle did so. Then the

plaintiff must demonstrate that the defendants took an

adverse action against her. Undoubtedly, Merkle satisfied

her burden on this point as well for the School Defendants

gave information to the police that resulted in her criminal

prosecution and they suspended her as a teacher.

But it is not enough for a plaintiff to show merely that

she engaged in First Amendment activity and that she

subsequently suffered an adverse action from the public

actors who might have taken exception to that activity.

Rather, the plaintiff must demonstrate that her

constitutionally protected conduct was a "substantial" or

"motivating factor" in the defendant's conduct. Id. at 287,

97 S.Ct. at 576. Only if the plaintiff satisfies this initial

burden does the defendant have the burden to demonstrate

by a preponderance of the evidence that it would have

taken the same action in the absence of the protected

conduct. Id.3

_________________________________________________________________

3. Our cases indicate that a public employee's claim for a protected

activity, in this case free speech, should be analyzed in three steps: (1)

was the activity protected; (2) was the protected activity a substantial

or

motivating factor in the alleged retaliatory action; (3) would the

defendants have taken the same action even in the absence of the

protected activity. See Fultz v. Dunn, 165 F.3d 215, 218 (3d Cir. 1998),

cert. denied, 119 S.Ct. 2342 (1999); Latessa v. New Jersey Racing

Comm'n, 113 F.3d 1313, 1319 (3d Cir. 1997); Watters v. City of

Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995). The plaintiff has the

burden on the first two issues and if the third is reached the defendant

has the burden on it. I have analyzed the case as including four steps

as the second step includes two elements: did the defendants take an

action adverse to the public employee and, if so, was the motivation for

the action to retaliate against the employee for the protected activity.

28

In fact there is no evidence that Merkle's First

Amendment activity was a substantial or motivating factor

in the School Defendants' conduct in notifying the police as

to what she did or in suspending her. In this regard, I first

point out that it is significant that Merkle and not the

School Defendants set the events in motion which led to the

criminal charges and the suspension. Thus, it was Merkle

who made the determination to take the crayons. And it

was Merkle who decided when the crayons would be taken

and to whom she would give them.

Moreover, there is no direct evidence that Merkle's

protected activity prior to the crayon incident was a

substantial or motivating factor in the School Defendants'

actions leading to her prosecution or suspension.

Accordingly, unless a court will permit an inference to be

drawn that an employer's adverse action against an

employee can be regarded as retaliatory merely because the

employee has engaged in antagonistic First Amendment

activity, we must affirm. But by drawing such an inference,

we effectively will eliminate the plaintiff 's burden under Mt.

Healthy v. Doyle to demonstrate that the constitutionally

protected activity was a "substantial" or"motivating factor"

in the defendants' adverse action. Instead, when an

employee engages in First Amendment activity and suffers

an adverse employment action, we immediately will shift to

the defendants the burden to demonstrate that they would

have taken adverse action notwithstanding the employee's

having engaged in First Amendment activity.

I recognize that Merkle sets forth several reasons why she

thinks that she can demonstrate that the School

Defendants initiated the criminal proceedings in retaliation

for her free speech activities, but she merely demonstrates

that they may have had animosity toward her in part for

reasons unrelated to her First Amendment activity in issue

here. Br. at 30-31.4 In a sense, then, her argument is

_________________________________________________________________

4. In her brief Merkle indicates that "[a] jury could give credence to the

fact that [she] was subject to disparate treatment throughout the school

year -- subsequent to her speech at the board meeting and continued

advocacy before the principal." Br. at 31. In support of this contention

she cites her deposition. See app. at 139-40. There she testified to

matters completely discrete from the First Amendment activity

implicated here such as that she was "written up" because of time she

spent talking with a new student, she left work early, and she did not

like an "absurd schedule" that the school assigned her.

29

counterproductive. It is critical in considering this point to

recognize that a section 1983 retaliation case hinges on the

plaintiff demonstrating that her First Amendment activity

motivated the employer's adverse action. Thus, for example,

if an employer's motive in instituting criminal proceedings

against a teacher was that it thought that she was a poor

teacher it would not be liable to her in a section 1983

retaliation case.5

The closest that Merkle comes to demonstrating that she

was prosecuted by reason of engaging in First Amendment

activities is her charge "that participating teacher Nancy

Markowich (who initially suggested the crayon donation)

was not disciplined nor made subject to criminal

prosecution -- bolstering the claim of an improper

motivation." Br. at 31. But her argument here clearly fails

as Markowich was not involved in the actual removal of the

property and indeed was not even at the school when

Merkle removed it. Thus, Merkle cannot establish the nexus

between the school district taking action adverse to her and

her First Amendment activity by demonstrating that

Markowich received disparate and more favorable

treatment.

I make one final point with respect to the retaliatory

motivation issue. In Mt. Healthy v. Doyle, the Court said:

The constitutional principle at stake is sufficiently

vindicated if such an employee is placed in no worse a

position than if he had not engaged in the conduct. A

borderline or marginal candidate should not have the

employment question resolved against him because of

constitutionally protected conduct. But that same

candidate ought not to be able, by engaging in such

conduct, to prevent his employer from assessing his

performance record and reaching a decision not to

rehire on the basis of that record, simply because the

protected conduct makes the employer more certain of

the correctness of its decision.

429 U.S. at 285-86, 97 S.Ct. at 575. More recently, in

_________________________________________________________________

5. While it might be liable on some other basis no such issue is raised

here.

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recognition of the type of concern expressed in Mt. Healthy

v. Doyle, we indicated as follows:

We also make the following observation with respect

to performance evaluations. While it is possible that a

manager might make a poor evaluation to retaliate

against an employee for making an EEOC charge, still

it is important that an employer not be dissuaded from

making what he believes is an appropriate evaluation

by a reason of a fear that the evaluated employee will

charge that the evaluation was retaliatory. In this

regard, we are well aware that some employees do not

recognize their deficiencies and thus erroneously may

attribute negative evaluations to an employer's

prejudice. Accordingly, in a case like this in which the

circumstances simply cannot support an inference that

the evaluations were related to the EEOC charges, a

court should not hesitate to say so.

Shaner v. Synthes (USA), 204 F.3d 494, 505 (3d Cir. 2000).

The concern the Supreme Court expressed in Mt. Healthy

v. Doyle and that we expressed in Shaner v. Synthes is

implicated here. Why should the School Defendants have

been intimidated by the fact that Merkle had engaged in

First Amendment activities in their response when they

discovered her illegally removing School District property?

The lesson that the majority is sending to employers is

clear: even when you find your employee violating the

criminal law, be reluctant to bring criminal proceedings

against her if she has engaged in First Amendment activity,

lest you be faced with a retaliation claim. Unfortunately,

the lesson to employees is equally clear: make sure that

you engage in First Amendment activity in relation to your

employment in a manner calculated to antagonize the

supervisory personnel, because if you do so you later will

be able to charge that any action the employer takes

adverse to you is in retaliation for that activity. Moreover,

you should engage in antagonistic First Amendment activity

for the further reason that if you do so you may anticipate

that your employer will tolerate misconduct on your part

that it would not tolerate from employees not similarly

insulated from disciplinary proceedings. Furthermore, the

employer will favor you with respect to promotions and the

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emoluments of your position because if it does not do so

you may bring retaliation charges against it.

The majority believes that my view that its opinion will

make employers reluctant to bring criminal proceedings

when an employee is found violating the law is

"groundless." Maj. op. at 22. It suggests that the School

Defendants "never had cause to find a criminal violation,

because it knew that Merkle acted without criminal intent."

Id. at 22. Thus, the majority believes that my dissent

"assumes that Merkle committed a criminal violation," id.,

an assumption that the majority believes "is negated by the

facts, the circumstances, and the law." Id .

In fact, my position is predicated on the plain

circumstance that the School Defendants had probable

cause to believe that Merkle committed a crime and is not

dependent on whether or not she in fact committed a

criminal act. There is simply no doubt but that the School

Defendants had cause to believe that Merkle was exercising

unlawful control over its property with an intent to deprive

the School District of the property. Obviously, the mere fact

that Merkle was not convicted does not mean that the

School Defendants did not have probable cause to institute

the criminal proceedings. After all, if the termination of the

criminal proceedings in favor of the plaintiff, i.e., the

defendant in the criminal proceedings, meant that the

criminal proceedings necessarily had been instituted

without probable cause then there would be no reason for

the courts to require the plaintiff to prove the absence of

probable cause in a malicious prosecution action as such

proof would add nothing to the requirement that the

criminal proceedings be terminated in the plaintiff 's favor.

In point of fact the majority opinion will come to have the

exact chilling effect on employers that I anticipate and

attorneys representing employers will read the majority

opinion and advise employers against bringing criminal

charges even when they have probable cause to do so.

While some people may take umbrage at my suggestion

as they will say that an honest and conscientious employer

always will be able to justify its actions, I live in the real

world and I believe that employers will take action to avoid

litigation which, after all, at best is expensive and time

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consuming. In this regard I point out that even a successful

defendant in a retaliation action probably will not be able to

recover its legal expenses for its defense. See EEOC v. L.B.

Foster Co., 123 F.3d 746 (3d Cir. 1997) (Title VII action).

Moreover, litigation is risky so that even the best

intentioned employer may seek to avoid a potential

judgment.

I see no Fourteenth Amendment liberty interest

implicated here. In her brief Merkle explains that the

School "District's statement certainly could be read in such

a manner that would lead a reader to believe that a theft

had, in fact, occurred." Br. at 34. Her problem with this

point is that the School Defendants had probable cause to

believe that such was the case. Moreover, I am unaware of

anything in the dignified and restrained public statement of

the School District reprinted in the appendix which was not

true. See app. at 37-38. In fact, the School District set forth

the objective facts and then indicated that the police were

called to investigate, "and as a result of the investigation,

Detective Jack Hahn filed a criminal complaint charging

Lou Ann Merkle with theft, receiving stolen property and

criminal attempt at theft." Thus, it quite escapes me to

understand how the School Defendants infringed Merkle's

liberty interest. Indeed, it is a sensational irony that the

majority in a First Amendment case allows an action

predicated primarily on the School Defendants' truthful

statements about a matter of public interest to go forward

against them. Finally, Dr. Brown has qualified immunity

because he did not violate any constitutional right of

Merkle and surely he could have reasonably believed that

inasmuch as she was engaged in a theft of school property

she could be prosecuted. See In re City of Philadelphia

Litig., 49 F.3d 945, 960-61 (3d Cir. 1995).

I close with the following comment. While I can

understand the majority's belief that Merkle was treated

harshly, the precedent that it sets will come back to haunt

this court. Its conclusions with respect to probable cause

and infringement of Merkle's liberty interests simply are not

justified.

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For the reasons that I state herein, I dissent from the

majority opinion to the extent that it reverses. In all other

respects I join its opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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