Joseph De Ritis v. Thomas McGarrigle

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 16-1433

_______________

JOSEPH E. DE RITIS

v.

THOMAS J. MCGARRIGLE; MARIO J. CIVERA, JR.;

COLLEEN P. MORRONE; JOHN P. MCBLAIN;

DAVID J. WHITE, INDIVIDUALLY AND AS COUNTY

COUNCIL OF DELAWARE COUNTY;

CHAD F. KENNEY, INDIVIDUALLY AND AS

PRESIDENT OF THE BOARD OF JUDGES OF THE

COURT OF COMMON PLEAS OF DELAWARE

COUNTY; DOUGLAS C. ROGER, JR., INDIVIDUALLY

AND AS EXECUTIVE DIRECTOR OF THE OFFICE OF

THE PUBLIC DEFENDER OF DELAWARE COUNTY;

MICHAEL L. MADDREN, INDIVIDUALLY AND AS

SOLICITOR OF DELAWARE COUNTY;

DELAWARE COUNTY

Douglas C. Roger, Jr.,

Appellant

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(E.D. Pa. Civil Action No. 2:13-cv-06212)

Honorable Cynthia M. Rufe, U.S. District Judge

_______________

Argued: January 17, 2017

Before: VANASKIE, KRAUSE, and NYGAARD, Circuit

Judges

(Opinion Filed: June 29, 2017)

Joseph De Ritis, Esq. (Argued)

2029 Rose Lane

Broomall, PA 19008

Plaintiff-Appellee Joseph De Ritis, pro se

Mark A. Raith, Esq. (Argued)

Holsten & Associates

One Olive Street

Media, PA 19063

Attorney for Defendant-Appellant Douglas C. Roger, Jr.

_______________

OPINION OF THE COURT

_______________

2

KRAUSE, Circuit Judge.

To explain a perceived demotion to judges, other

attorneys, and county officials, Appellee, an Assistant Public

Defender, circulated a rumor he had heard and alleged he was

being punished for taking too many cases to trial. After the

Public Defender fired Appellee for those statements, Appellee

filed suit, claiming a violation of his First Amendment rights,

and the District Court denied the Public Defender’s motion

for summary judgment on the basis of qualified immunity.

Because we conclude the First Amendment does not protect

the speech at issue here—statements made while performing

official job responsibilities, speculative comments about the

reason for a perceived demotion, and recklessly false rumors

circulated to government officials—we will reverse and

remand.

I. Background

Appellee Joseph De Ritis became an Assistant Public

Defender for Delaware County in December 2005.

Consistent with the typical progression for attorneys in the

Office of the Public Defender, De Ritis was first assigned to

the Office’s preliminary hearing unit, was elevated to the

juvenile court unit in May 2007, and was ultimately assigned

to a “trial team,” or a group of three attorneys assigned to

handle trials in a particular judge’s courtroom, in November

2007.

But things changed in June 2012, when the Public

Defender, Douglas C. Roger, Jr., informed De Ritis that

staffing changes were necessary in the wake of another

Assistant Public Defender’s motorcycle accident and that

De Ritis would be transferred back to the juvenile court unit.

3

Roger justified the transfer by noting that De Ritis was “an

expert at juvenile law.” App. 128A. Although De Ritis was

not actually interested in juvenile law, he agreed to the

transfer.

De Ritis suspected, however, that Roger had other reasons

for transferring him, so he asked others whether they knew

the true reasons for the transfer. He asserts his inquiries

yielded fruit on two occasions. First, De Ritis contends that,

one or two weeks after his transfer, First Assistant Public

Defender Francis Zarilli told De Ritis that Roger had

transferred him because De Ritis’s clients were not pleading

guilty fast enough, which was contrary to the wishes of

Delaware County’s President Judge, Chad Kenney. Second,

De Ritis asserts that, later that month, Jake Dolan, a former

Assistant Public Defender, gave him the same explanation,

i.e., that Roger removed De Ritis from a trial team because he

was not “moving [his] cases,” App. 129A, 200A, though

De Ritis concedes that his conversation with Dolan occurred

during a “Taco Tuesday” session of after-work “gossip” and

that Dolan professed his account was “fourth-person

hearsay,” App. 129A. De Ritis assumed Zarilli and Dolan’s

information was accurate, however, and he immediately

began sharing it as the reason for his transfer—and continued

to do so over the course of the next eleven months.

De Ritis’s rumors proceeded in three phases. First, in the

wake of his transfer to the preliminary hearing unit, he

informed judges, private attorneys, and his colleagues at the

Office of the Public Defender that he was “being punished”

for “taking too many cases to trial.” App. 134A, 174A.

Although De Ritis did not speak “on the record” about why

he was transferred, he acknowledges he shared the rumor

while he was representing clients in court, “during the usual

4

idle chatter while waiting for court to begin or end.”

App. 175A. Despite circulating the alleged reason for his

transfer widely, De Ritis did not discuss the issue with Roger.

Second, four months later, De Ritis’s statements about his

allegedly excessive trial practice intensified after Roger

granted De Ritis’s voluntary request to be transferred to the

preliminary hearing unit. De Ritis continued sharing the

rumor about being punished with attorneys and judges, even

to the point of telling one judge, Judge Stephanie Klein, that

he had been transferred because he “had refused . . . to obey a

‘policy,’ established by [Roger], that the Public Defenders’

office should try to plead guilty as many criminal defendants

as possible in order to more easily dispose of the cases

assigned to us and pending before the court.” App. 38A.

De Ritis still did not discuss the issue with Roger himself.

Third, a few months later, De Ritis thought things would

change when openings became available on the trial team for

a newly elected judge. They did not. Although De Ritis

asked Roger to assign De Ritis to the trial team, Roger

declined. Unhappy with that result, De Ritis turned his

efforts toward “seek[ing] an audience” with the County

Council. App. 175A.

De Ritis initially pursued that goal by approaching the

County Solicitor, Michael Maddren, and telling him the same

rumor—namely, that Roger had transferred De Ritis off of a

trial team because De Ritis was not “moving” cases and

“wanted to take too many cases to trial,” which was at odds

with President Judge Kenney’s preferences. App. 52A,

136A. De Ritis “suggested that this was violating the rights

of his clients,” particularly in view of “the constitutional

implications of public defenders being demoted because they

5

advise defendants to seek trials.” App. 52A, 176A. Although

Maddren agreed to investigate, Maddren ultimately declined

to pursue the matter further after contacting Roger and

learning that De Ritis “was not performing well” as an

Assistant Public Defender. App. 53A.

De Ritis then met with the chairman of the County

Council, Thomas McGarrigle. De Ritis had “the same

conversation” with McGarrigle that he had had with Maddren

and stated that he would like to address the County Council

about his situation. App. 137A, 176A. As Maddren had

done, McGarrigle agreed to investigate, although it does not

appear he contacted De Ritis again about the matter.

This rumormongering finally came to an end in May

2013, when Roger heard about De Ritis’s allegations by

means of Judge Klein’s comments to another Assistant Public

Defender. Astonished, Roger asked De Ritis whether the

report from Judge Klein was true, and De Ritis admitted that,

after appearing “in . . . court to handle a preliminary hearing,”

App. 38A, he had told Judge Klein that he was being

punished for taking too many cases to trial. What’s more,

De Ritis also told Roger that he had made similar comments

to other attorneys, to other judges, to Maddren, and to

McGarrigle. Because of De Ritis’s statements to all of these

individuals, Roger fired De Ritis.

De Ritis brought suit against Roger soon after, seeking

relief under 42 U.S.C. § 1983 and claiming that Roger’s

decision to fire De Ritis violated De Ritis’s First Amendment

rights.1 After discovery, and in view of his status as a

1

In addition to Roger, De Ritis also named as defendants

Judge Kenney; Maddren; the Delaware County Council and

6

government official, Roger moved for summary judgment on

qualified immunity grounds, but the District Court denied the

motion. See De Ritis v. Roger, 165 F. Supp. 3d 231, 239-46

(E.D. Pa. 2016). This appeal timely followed.

all of its members, including McGarrigle; and Delaware

County itself as defendants. He brought the same First

Amendment claim against those defendants and, in addition,

brought claims against all defendants under the Fifth, Sixth,

and Fourteenth Amendments of the Constitution and 42

U.S.C. § 1983; 42 U.S.C. §§ 1985, 1986, and 1988; the

Pennsylvania common law of civil conspiracy, negligent

infliction of emotional distress, and wrongful discharge; and

the Pennsylvania Whistleblower Law, 43 Pa. Cons. Stat.

§§ 1423-1428. Except for De Ritis’s First Amendment and

Pennsylvania Whistleblower Law claims against Roger, the

District Court dismissed or entered judgment in the

defendants’ favor on the other claims. See De Ritis v. Roger,

165 F. Supp. 3d 231, 246-50 (E.D. Pa. 2016); De Ritis v.

McGarrigle, No. 13-6212, 2014 WL 2892419, at *2-9 (E.D.

Pa. June 25, 2014). In this interlocutory qualified immunity

appeal, Roger does not challenge the District Court’s denial

of summary judgment on the Pennsylvania Whistleblower

Law claim, thus the First Amendment claim against Roger is

the only claim before us.

7

II. Jurisdiction2 and Standard of Review

Where, as here, a district court has denied summary

judgment and trial is still to come, we typically lack appellate

jurisdiction under 28 U.S.C. § 1291, which allows us to

review only “final” district court decisions. See Johnson v.

Jones, 515 U.S. 304, 309 (1995). But “collateral orders,” or

orders that “finally determine claims of right separable from,

and collateral to, rights asserted in the action, too important to

be denied review and too independent of the cause itself to

require that appellate consideration be deferred,” equate to

“final” decisions and qualify for immediate appeal. Id. at

310-11. Such is the order before us today.

“When the defense of qualified immunity is raised and

denied, a defendant is generally entitled to an immediate

appeal under the collateral order doctrine so long as the denial

turns on an issue of law.” Oliver v. Roquet, No. 14-4824,

2017 WL 2260961, at *3 (3d Cir. May 24, 2017). We thus

have jurisdiction to review “whether the set of facts identified

by the district court is sufficient to establish a violation of a

clearly established constitutional right” and therefore to

ground a denial of qualified immunity, Dougherty v. Sch.

Dist. of Phila., 772 F.3d 979, 986 (3d Cir. 2014), and we

decide this legal issue “with reference only to undisputed

facts and in isolation from the remaining issues of the case,”

Johnson, 515 U.S. at 313. That is, we “take, as given, the

facts that the district court assumed when it denied summary

judgment,” Johnson, 515 U.S. at 319, and we view them in

The District Court had jurisdiction over De Ritis’s First

2

Amendment claim against Roger pursuant to 28 U.S.C.

§ 1331.

8

the light most favorable to De Ritis, the non-movant here,

Dougherty, 772 F.3d at 986.

Within these parameters, our review is plenary, and we

will overturn the District Court’s denial of summary

judgment “only when the record ‘shows that there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.’” Id. (quoting Fed. R.

Civ. P. 56(a)).

III. Discussion

In reviewing a district court’s denial of qualified

immunity, we must reverse if the defending government

official did not violate a statutory or constitutional right or,

even if he did, if that right was not “clearly established” at the

time of the challenged conduct. Lane v. Franks, 134 S. Ct.

2369, 2381 (2014). Here, addressing both prongs of qualified

immunity, the District Court concluded that Roger had

violated De Ritis’s right to free speech and that the right, as

defined by the District Court, was clearly established. See

De Ritis, 165 F. Supp. 3d at 239-46. Although the District

Court wrote a thoughtful and detailed opinion that wrestled

with our case law and with the sensitive issues presented by

this case, we ultimately disagree with its conclusion and hold

that Roger did not violate De Ritis’s First Amendment rights

and that Roger therefore was entitled to qualified immunity.3

3

While we have discretion to address the two prongs of

qualified immunity in either order, we resolve this case at the

first prong, both to “promote[] the development of

constitutional precedent” and for efficiency’s sake, as “a

discussion of why the relevant facts do not violate clearly

9

The First Amendment of the Constitution broadly protects

citizens’ rights to “freedom of speech,” U.S. Const. amend. I,

and the law has long held that “citizens do not surrender their

First Amendment rights by accepting public employment,”

Lane, 134 S. Ct. at 2374. However, unlike members of the

general public who may be liable for defamation when they

make statements with “actual malice,” N.Y. Times Co. v.

Sullivan, 376 U.S. 254, 279-80 (1964), public employees’

First Amendment rights are limited by the Government’s

countervailing interest in efficient provision of public

services, see Lane, 134 S. Ct. at 2377, so in this context the

First Amendment inquiry obliges us to apply a different test.

Because De Ritis was a public employee, De Ritis’s speech is

protected by the First Amendment only (1) if he spoke “as a

citizen (and not as an employee),” (2) if his speech involved

“a matter of public concern,” and (3) if his employer lacked

an “adequate justification” for treating him differently from

the general public, based on a balancing of his and his

employer’s interests under Pickering v. Board of Education,

391 U.S. 563 (1968). See Munroe v. Central Bucks Sch.

Dist., 805 F.3d 454, 466 (3d Cir. 2015).

After careful consideration, and in view of our plenary

review of this question of law,4 Gorum v. Sessoms, 561 F.3d

established law” would in this case “make it apparent that in

fact the relevant facts do not make out a constitutional

violation at all.” Pearson v. Callahan, 555 U.S. 223, 236

(2009).

4

Granted, whether speech is protected turns on a “mixed

question of fact and law” when a dispute exists over

“[w]hether a particular incident of speech is made within a

particular plaintiff’s job duties.” Flora v. Cty. of Luzerne,

10

179, 184 (3d Cir. 2009); see De Ritis, 165 F. Supp. 3d at 244,

we conclude that none of the statements for which De Ritis

was fired qualifies as protected speech.5 We divide those

statements into three categories for purposes of analysis—

(1) statements to judges and attorneys while in court,

(2) statements to attorneys outside of the courthouse, and

(3) statements to County Solicitor Maddren and County

Council Chairman McGarrigle6—and consider the criteria for

protected speech as applied to each category below.

776 F.3d 169, 175 (3d Cir. 2015). But the scope and content

of De Ritis’s job responsibilities is undisputed here, so

whether De Ritis’s statements qualify as protected speech is a

purely legal question.

5

Even if we held that De Ritis’s speech was protected,

De Ritis could ultimately prevail on his claim of First

Amendment retaliation only if the District Court also held

that his speech was “a substantial or motivating factor” in the

decision to fire him and that, in the absence of that speech,

Roger would not have fired him. Munroe, 805 F.3d at 466.

Because the undisputed facts show De Ritis cannot establish

protected speech, we need not reach these latter two elements

of a First Amendment retaliation claim.

6

We address De Ritis’s statements to each of three

categories of recipients because, even though the District

Court’s First Amendment analysis addressed only De Ritis’s

“statements to . . . Maddren and . . . McGarrigle,” De Ritis,

165 F. Supp. 3d at 240, the District Court’s order denied

Roger qualified immunity with respect to all of De Ritis’s

statements, and an appeal is taken with respect to “the

definitive order or judgment which follows the opinion,” not

11

1. Citizen Speech

“[W]hen public employees make statements pursuant to

their official duties, the employees are not speaking as

citizens for First Amendment purposes, and the Constitution

does not insulate their communications from employer

discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

However, the line between citizen speech and employee

speech varies with each case’s circumstances, for we may not

draw the line using such simple tests as whether the employee

spoke “within the office,” id. at 420-21, whether his

statements were made pursuant to duties described in his

“[f]ormal job description[],” id. at 424-25, or whether “speech

concerns information related to or learned through public

employment,” Lane, 134 S. Ct. at 2377. We instead make a

“practical” inquiry, Garcetti, 547 U.S. at 424, and assess

“whether the speech at issue is itself ordinarily within the

scope of an employee’s duties,” Lane, 134 S. Ct. at 2379. If

so, then it is employee speech and receives no First

Amendment protection.

Such is the case for De Ritis’s in-court statements to

attorneys and judges. It is undisputed that De Ritis’s ordinary

job duties included in-court obligations “to build rapport with

the Court” and other attorneys. App. 46A. And for good

reason, because attorneys, both private and public, are

“officers of the Court,” Model Rules of Prof’l Conduct r. 3.3

cmt. [2] (Am. Bar Ass’n 2015), and their statements in court,

even if “idle chatter” and not “on the record,” App. 175A, are

then “[o]fficial communications” with “official

the opinion itself, In re Chelsea Hotel Corp., 241 F.2d 846,

848 (3d Cir. 1957); see Fed. R. App. P. 4.

12

consequences” that create “a need for substantive consistency

and clarity,” Garcetti, 547 U.S. at 422. After all, even

offhand in-court statements, particularly for government

attorneys but also for private counsel, may affect the judicial

process, see Model Rules of Prof’l Conduct r. 3.5; cf. Cox v.

Louisiana, 379 U.S. 559, 565 (1965), and often the attorney’s

statements are a proxy for the positions of both his clients and

his employer, see Model Rules of Prof’l Conduct rr. 1.2, 5.1,

5.2(b) & cmt. [2].7 Accordingly, a supervising attorney like

Roger “need[s] a significant degree of control” over his

subordinate attorneys’ in-court statements in order to prevent

subordinates from “express[ing] views that contravene

governmental policies or impair the proper performance of

governmental functions.” Garcetti, 547 U.S. at 418-19.

Here, De Ritis’s in-court statements to attorneys and judges

were all made while waiting for a proceeding “on the record”

to begin or end, App. 175A, and thus were part and parcel of

his ordinary job duties—not citizen speech, see Garcetti, 547

U.S. at 422-24.

Our conclusion regarding De Ritis’s in-court statements

finds support in our case law on citizen speech. Our cases

consistently hold that, though speech may be protected even

if it “concerns information related to or learned through

public employment,” Lane, 134 S. Ct. at 2377; see, e.g.,

Flora v. Cty. of Luzerne, 776 F.3d 169, 172-80 (3d Cir.

2015), an employee does not speak as a citizen if the mode

and manner of his speech were possible only as an ordinary

corollary to his position as a government employee, see Lane,

7

Indeed, the Pennsylvania Rules of Professional Conduct,

which apply to De Ritis, say as much. See Pa. R. Prof’l

Conduct rr. 1.2, 3.3 cmt. [2], 3.5, 5.1, 5.2(b) & cmt. [2].

13

134 S. Ct. at 2379; Gorum, 561 F.3d at 186. As we discussed

in Fraternal Order of Police, Lodge 1 v. City of Camden, for

example, police officers do not speak as citizens when they

object to police department policies by means of “police

department counseling forms,” for “[c]itizens do not complete

internal police counseling forms.” 842 F.3d 231, 243-44 (3d

Cir. 2016). Here, similarly, because De Ritis had the

opportunity to speak in court to attorneys and judges only as

an ordinary corollary to his position as an Assistant Public

Defender, see App. 174A-75A, his speech in that role was not

citizen speech.

To be sure, citizens may offer truthful in-court testimony

as witnesses, see Reilly v. City of Atl. City, 532 F.3d 216, 231

(3d Cir. 2008), may bring class action lawsuits based on

information learned through their jobs, see Flora, 776 F.3d at

176-80, and may even report alleged workplace misconduct

to government officials, as De Ritis did in his meetings with

Maddren and McGarrigle. Yet, just as citizens do not

“complete internal police counseling forms,” which are

reserved for police officers, Fraternal Order of Police, 842

F.3d at 244, they also do not make “idle chatter [with

attorneys and judges] while waiting for court to begin or end”

as a public defender representing a client may do, App. 175A.

Such chatter is not citizen speech and is not protected by the

First Amendment.8

8

Our discussion of citizen speech applies equally to

De Ritis’s communications with his clients as an Assistant

Public Defender and to the application for a writ of habeas

corpus that he filed on behalf of a client. Although De Ritis

contends that these communications are protected by the First

Amendment, they are clearly instances in which De Ritis

14

De Ritis did, of course, discuss the rumor about his

transfers with attorneys while not in court and with Maddren

and McGarrigle. And those statements are arguably citizen

speech because they were not “part of the work [De Ritis]

was paid to perform on an ordinary basis.” Flora, 776 F.3d at

180. With those statements in mind, we turn to the second

required attribute of protected speech: the requirement that

the speech “involve a matter of public concern.” Munroe,

805 F.3d at 466.

2. Speech on a Matter of Public Concern

To involve a matter of public concern, speech must relate

to “a subject of general interest and of value and concern to

the public,” whether it is a “matter of political, social or other

concern to the community” or “a subject of legitimate news

interest.” Lane, 134 S. Ct. at 2380. By contrast, speech does

not involve a matter of public concern when it relates solely

to “mundane employment grievances.” Munroe, 805 F.3d at

467.

We determine the public or nonpublic nature of an

employee’s speech by reference to the speech’s “content,

form, and context,” Lane, 134 S. Ct. at 2380, which

encompasses “the employee’s motivation as well as whether

spoke in his capacity as an Assistant Public Defender and not

in his capacity as a citizen, as it is undisputed that “talk[ing]

to the client to . . . get . . . [his or her] input into working out

the case” and “get[ting] done what was needed to favorably

resolve the client’s case[],” App. 45A, were activities

“ordinarily within the scope of [De Ritis’s] duties,” Lane, 134

S. Ct. at 2379.

15

it is important to our system of self-government that the

expression take place,” Munroe, 805 F.3d at 467. But we do

not consider whether a statement is “inappropriate” or

“controversial,” because “humor, satire, and even ‘personal

invective’” can make a point about a matter of public

concern. Id. at 470. The “tone of the communications” is

irrelevant. Johnson v. Lincoln Univ. of Commonwealth Sys.

of Higher Educ., 776 F.2d 443, 451-52 (3d Cir. 1985).

Because we are not to “make a superficial characterization

of the speech or activity taken as a whole,” we conduct “a

particularized examination of each activity for which the

protection of the First Amendment is claimed” to determine

whether it involves a matter of public concern, id. at 451; see,

e.g., Connick v. Myers, 461 U.S. 138, 147-48 (1983);

Munroe, 805 F.3d at 469-70; Johnson, 776 F.2d at 450-54,

while taking care not to “‘cherry pick’ something that may

impact the public while ignoring [its] manner and context,”

Munroe, 805 F.3d at 467. That is to say, we will hold that a

discrete unit of speech addresses a matter of public concern if

it discusses “fundamental problems” reaching beyond the

employee’s “day-to-day minutiae,” Watters v. City of Phila.,

55 F.3d 886, 894 (3d Cir. 1995), such as a concern that all

assistant district attorneys in an office are required to work on

political campaigns, see Connick, 461 U.S. at 148-49, a

concern about academic integrity in today’s youth generally,

see Munroe, 805 F.3d at 469-70, or a concern about academic

standards applicable to a university as a whole, see Johnson,

776 F.2d at 451-54. But if a discrete unit of speech addresses

only the employee’s own problems, and even if those

problems “brush . . . against a matter of public concern” by

virtue of that employee’s public employment, then that

16

speech is merely a “personal grievance.” Miller v. Clinton

Cty., 544 F.3d 542, 551 (3d Cir. 2008).9

Applying these principles here, we hold that De Ritis’s

out-of-court statements to other attorneys did not involve a

matter of public concern, while his statements to Maddren

and McGarrigle did. The undisputed evidence in the record

establishes that De Ritis’s out-of-court statements to other

attorneys addressed only De Ritis’s own employment

situation: “I’m being punished.” “Apparently, I’m taking too

many cases to trial.” “Judge Kenney thinks I’m telling too

many defendants they can have trials.” App. 134A, 174A-

175A (emphases added). In these statements, De Ritis never

discussed any “fundamental problems” reaching beyond his

own “day-to-day minutiae,” Watters, 55 F.3d at 894, such as,

for example, his later contention that his clients’ rights were

being violated. De Ritis’s out-of-court statements to

attorneys, thus, at most “brush[ed] . . . against” matters of

public concern, Miller, 544 F.3d at 551, and they do not merit

First Amendment protection.

De Ritis’s conversations with Maddren and with

McGarrigle are a different matter. In both of those

discussions, De Ritis went further and expressed concern for

9

De Ritis asks us to overrule Miller on the ground that it

is at odds with New York Times Co. v. Sullivan, 376 U.S. 254

(1964). We decline to do so, as New York Times did not arise

in the public employment context, where “the First

Amendment allows a public employer to regulate its

employees’ speech in ways it could never regulate the general

public’s.” Swineford v. Snyder Cty., 15 F.3d 1258, 1270 (3d

Cir. 1994).

17

individuals other than himself: he suggested that the reason he

believed he was transferred, i.e., his penchant for taking too

many cases to trial, violated “the rights of his clients” to the

point of having “constitutional implications.” App. 52A,

176A. That is, he did not confine his complaints to his own

employment situation, cf. Miller, 544 F.3d at 550-51, but

instead spoke about a “matter of political, social or other

concern to the community” in discussing the rights of

criminal defendants generally, Lane, 134 S. Ct. at 2380, and

in seeking a “public mien” for his complaints, Swineford v.

Snyder Cty., 15 F.3d 1258, 1272 (3d Cir. 1994).

At the same time, we recognize that, because “six months

or eight months” elapsed before De Ritis attempted to

investigate the truth of the rumor he was spreading,

App. 131A, and because no evidence in the record other than

De Ritis’s own testimony supports the rumor’s truth,

De Ritis’s statements to Maddren and to McGarrigle were

“recklessly . . . false,” Swineford, 15 F.3d at 1272.10 But that

fact means merely that his interest, “as a citizen, in

commenting upon matters of public concern” receives less

weight when balanced against the employer’s interest “in

promoting the efficiency of the public services it performs

10

We disagree with the District Court’s statement that

“there is no evidence that [De Ritis’s] speech was knowingly

or recklessly false,” De Ritis, 165 F. Supp. 3d at 242, a legal

conclusion over which our review remains plenary, see

Dougherty, 772 F.3d at 986. We hold, as a matter of law, that

a person’s speech is recklessly false when he disseminates

“gossip” in the form of “fourth-person hearsay” and chooses

to do so for “six months or eight months” without

investigating its truth. App. 129A, 131A.

18

through its employees” at the third step of the protected

speech analysis, Munroe, 805 F.3d at 466; see, e.g.,

Swineford, 15 F.3d at 1274; it does not mean that his

statements to Maddren and to McGarrigle are per se

unprotected, for matters of public concern may “overlap”

with matters that do not receive First Amendment protection,

such as “personal grievances,” see Fraternal Order of Police,

842 F.3d at 243. We thus go on to consider whether

De Ritis’s statements to Maddren and to McGarrigle

nonetheless lack protection because they gave Roger adequate

justification to treat De Ritis differently from a member of the

general public.

3. Justification for Treating De Ritis Differently

from the Public

At the third step of the protected speech analysis, we

inquire into whether Roger had “adequate justification” for

treating De Ritis “differently than the general public based on

[his] needs as an employer under the Pickering balancing

test.” Munroe, 805 F.3d at 466. Specifically, we balance

De Ritis’s interests, “as a citizen, in commenting upon

matters of public concern” with “the interest of the State, as

an employer, in promoting the efficiency of the public

services it performs through its employees.” Id. (citing

Pickering, 391 U.S. at 568). If the Government’s interest is

“significantly greater” than De Ritis’s interest in contributing

to public debate, then De Ritis’s speech is not protected.

Pickering, 391 U.S. at 573.

First, we consider De Ritis’s “interest in engaging in [his]

speech,” Miller, 544 F.3d at 548, and “the interest[] of . . . the

public in the speech at issue,” Dougherty, 772 F.3d at 991.

Because “a stronger showing of government interests may be

19

necessary if the employee’s speech more substantially

involves matters of public concern,” Lane, 134 S. Ct. at 2381

(brackets omitted), the magnitude of this interest rests on the

extent to which De Ritis’s speech addressed an issue of public

concern, see Miller, 544 F.3d at 549-50. Although “the

public has a significant interest in encouraging legitimate

whistleblowing so that it may receive and evaluate

information concerning the alleged abuses of public

officials,” Dougherty, 772 F.3d at 991 (brackets and ellipsis

omitted), it has little interest in speech that “brush[es] ever so

gently against a matter of public concern” but nonetheless

remains “focused upon [the employee’s] private grievances as

an employee,” Miller, 544 F.3d at 550-51.

De Ritis’s speech here is more a private grievance than an

instance of legitimate whistleblowing, and thus we accord

De Ritis’s side of the scale lesser weight. Even as De Ritis

urged Maddren and McGarrigle to investigate alleged

misconduct he viewed to “violat[e] the rights of his clients,”

De Ritis remained focused on how his perceived demotion

“was hurting his career” and how he wanted Maddren and

McGarrigle “to intervene in the administration of the Public

Defender’s Office on his behalf.”

App. 52A-53A. Notably, De Ritis did not seek intervention

to protect the rights of the Public Defender Office’s clients

generally; he sought intervention only with respect to his own

employment situation.

More importantly, De Ritis’s “continued failure to verify

and substantiate” his allegations points up his “self-interest.”

Swineford, 15 F.3d at 1274. Although De Ritis was not

necessarily required to discuss his complaints with his

supervisor, Roger, see Czurlanis v. Albanese, 721 F.2d 98,

105 (1983), he waited “six months or eight months” before

20

approaching Maddren and McGarrigle about his concerns,

App. 131A, and he could have taken that step much sooner.

By his own admission, he did not do so because he “thought it

was going to work itself out”—in other words, because he

thought that, if his “punishment” ended and he was returned

to a trial team, there would be no need to broach the topic

with Maddren or with McGarrigle. App. 131A, 133A.

De Ritis’s “prolonged failure to authenticate [his]

allegations . . . approaches reckless indifference to their

veracity,” Swineford, 15 F.3d at 1274, which we would hold

against De Ritis even if his allegations were true, for “[t]he

issue is not falsity vel non but whether [the] statements . . .

were knowingly and recklessly made,” Springer v. Henry,

435 F.3d 268, 278 (3d Cir. 2006). In sum, De Ritis’s

statements to Maddren and to McGarrigle showed “self-

interest, not public spirit.” Swineford, 15 F.3d at 1274.

Second, on the other side of the scale, we consider

Roger’s “countervailing interests, including [his] prerogative

of removing employees whose conduct impairs performance,”

as well as “concerns for the morale of the workplace,

harmonious relationships among co-workers, and the regular

operation of the enterprise.” Miller, 544 F.3d at 548. Those

countervailing interests are substantial here. De Ritis’s

statements, which accused Roger of managing the Office in a

way that would appease a judge at the expense of clients’

rights, “impugned the integrity of his superiors” and

colleagues in a weighty manner. Watters v. City of Phila., 55

F.3d 886, 898 (3d Cir. 1995) (brackets and internal quotation

marks omitted). As Roger aptly put it, De Ritis “cut[] to the

core of [their] integrity as public defenders and fundamentally

threaten[ed] the idea that [they] are committed to zealously

defending the people [they] represent.” App. 39A.

21

What’s more, in a small office of twenty-seven public

defenders, such statements “would seriously undermine the

effectiveness of the working relationship” between De Ritis

and Roger, Watters, 55 F.3d at 897 (quoting Pickering, 391

U.S. at 570 n.3), the Public Defender whose positions he

represents before the courts and the public, see 16 Pa. Cons.

Stat. § 9960.5(a) (stating that “assistant public defenders”

enable the public defender “to carry out the duties of his

office”). Although not an “alter ego” of the public defender,

Sprague v. Fitzpatrick, 546 F.2d 560, 565 (3d Cir. 1976), an

assistant public defender is appointed or hired as a

representative of the public defender, see, e.g., 18 U.S.C.

§ 3006A(g)(2)(A); 16 Pa. Cons. Stat. § 9960.5(a), just as an

assistant United States attorney represents the United States

Attorney under whom she serves. These “close working

relationships for which personal loyalty and confidence are

necessary,” Dougherty, 772 F.3d at 991, are distinct from

those inherent in, for example, administrative roles or even a

position as an associate at a law firm, where job descriptions

and titles do not rest on the idea that the employee necessarily

represents the positions of his supervisor, cf. id. at 982-84,

992. Here, therefore, “the potential disruptiveness” of

De Ritis’s speech was considerable. Watters, 55 F.3d at

896.11

11

Although De Ritis asserts that Roger provided no

evidence of disruption, Roger had no need to do so, for it is

clear here “that disruption [was] likely to occur because of

[De Ritis’s] speech,” Munroe, 805 F.3d at 472, and the

Pickering balancing test asks us to focus our disruptiveness

analysis on whether the government employee’s speech was

22

Under the Pickering balancing test, De Ritis’s interest in

disseminating “fourth-person hearsay,” gleaned from

after-work “gossip,” App. 129A, pales in comparison to the

“potential disrupt[ion]” it could have caused to the Public

Defender’s Office, Watters, 55 F.3d at 896. Whatever First

Amendment value De Ritis’s statements had, those statements

gave Roger adequate justification to treat him differently

from a member of the public. For that reason, we conclude at

this third stage of the analysis that De Ritis’s speech was not

protected, putting a hard stop to his First Amendment claim

against Roger and entitling Roger to qualified immunity for

his decision to fire De Ritis.12 On remand, therefore,

“likely to be disruptive,” Watters, 55 F.3d at 896 (emphasis

added).

12

As we conclude that there was no constitutional right

violated by Roger under then-existing case law, a fortiori,

such right was not “‘clearly established’ at the time of the

challenged conduct,” Lane, 134 S. Ct. at 2381, and thus

Roger was entitled to qualified immunity on that independent

ground. The District Judge here diligently identified the

relevant case law and properly recognized as a general matter

that a public employee has a clearly established right to

“alleg[e] misconduct or wrongdoing by public officials.”

De Ritis, 165 F. Supp. 3d at 245; see, e.g., Dougherty, 772

F.3d at 982-84, 987-94; Czurlanis, 721 F.2d at 100-07. That

description of the right, however, is so general as to

encompass not only cases where speech alleging misconduct

or wrongdoing is protected, see, e.g., Dougherty, 772 F.3d at

982-84, 987-94, but also those where it is not, see, e.g.,

Swineford, 15 F.3d at 1262-64, 1269-74. Under our case law,

the “clearly established” inquiry requires reference not to

23

judgment should be entered in Roger’s favor on this claim.

See Lane, 134 S. Ct. at 2381.

IV. Conclusion

For the foregoing reasons, we will reverse the District

Court’s denial of qualified immunity and remand for

proceedings consistent with this opinion.13

such “broad general proposition[s],” but to precedent that is

“factually similar to the plaintiff’s allegations,” based on “the

specific context of the case.” Mammaro v. N.J. Div. of Child

Prot. & Permanency, 814 F.3d 164, 169 (3d. Cir. 2016).

13

Our disposition reaches only the First Amendment

claim against Roger, as the pending Pennsylvania

Whistleblower Act claim is not before us on appeal. See

supra note 1. On remand, the District Court should

“consider . . . the values of judicial economy, convenience,

fairness, and comity in order to decide whether to exercise

jurisdiction over . . . [that] pendent state-law claim[]” or to

dismiss that claim without prejudice. Carnegie-Mellon Univ.

v. Cohill, 484 U.S. 343, 350 & n.7 (1988); see 28 U.S.C.

§ 1367(c)(3); see, e.g., Kach v. Hose, 589 F.3d 626, 650 (3d

Cir. 2009); Growth Horizons, Inc. v. Del. Cty., Pa., 983 F.2d

1277, 1284-85 (3d Cir. 1993).

24