Crystal Starnes v. Butler County Court of Common

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 18-3271

___________

CRYSTAL STARNES

v.

BUTLER COUNTY COURT OF COMMON PLEAS,

50th Judicial District;

THOMAS DOERR, individually;

THOMAS HOLMAN, individually

Thomas Doerr,

Appellant

___________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-17-cv-01304)

District Judge: Honorable Cathy Bissoon

___________

Argued April 22, 2020

Before: HARDIMAN, RENDELL, and FISHER, Circuit

Judges.

(Filed: August 24, 2020)

Ronald T. Elliott

Thomas W. King, III

Dillon McCandless King Coulter & Graham

128 West Cunningham Street

Butler, PA 16001

Louis C. Long

Thomas P. McGinnis

Karin M. Romano [Argued]

Thomas Thomas & Hafer

525 William Penn Place

37th Floor, Suite 3750

Pittsburgh, PA 15219

Attorneys for Appellant Thomas Doerr

Jaime L. George

Edward A. Olds [Argued]

Olds Russ & Associates

1007 Mount Royal Boulevard

Pittsburgh, PA 15223

Attorneys for Appellee Crystal Starnes

Robert J. Krandel

Caroline P. Liebenguth

Supreme Court of Pennsylvania

Administrative Office of Pennsylvania Courts

1515 Market Street

Suite 1414

Philadelphia, PA 19102

Attorneys for Butler County Court of Common Pleas, 50th

Judicial District and Thomas Holman

2

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Judge Thomas Doerr appeals an order of the District

Court denying him qualified immunity on civil rights claims

brought by Plaintiff Crystal Starnes. Starnes contends we lack

jurisdiction to hear the appeal, but we disagree. As for the

merits, we agree with Starnes, except for her First Amendment

freedom of association claim. So we will affirm in part, reverse

in part, and remand the case for further proceedings.

I

Because Doerr appeals an order denying his motion to

dismiss under Rule 12(b), we must accept Starnes’s well-

pleaded allegations as true, construe them in the light most

favorable to her, and draw all reasonable inferences in her

favor. SEC v. Gentile, 939 F.3d 549, 552 n.1 (3d Cir. 2019).

We present the facts subject to those principles.

A

In 2004, Starnes met Doerr at a Christmas party held by

the Chief Public Defender for Butler County, Pennsylvania. At

the time, Starnes was a Probation Officer in Allegheny County,

and Doerr was the President Judge of the Butler County Court

of Common Pleas. Doerr flirted with Starnes at the party, they

exchanged phone numbers, and Doerr suggested they stay in

touch.

3

Following the party, Doerr repeatedly called Starnes to

ask her to “meet him at his chambers.” Starnes v. Court of

Common Pleas of Butler Cty. (Starnes I), 2018 WL 3586835,

at *1 (W.D. Pa. 2018). Starnes initially declined Doerr’s

invitations, but in early 2005 she relented and visited his

chambers after hours. When she arrived, Doerr began kissing

her and insisted she have sex with him. Starnes did so even

though Doerr’s advances were not welcome. Earlier that

evening, Doerr had discussed the prospect of hiring Starnes as

a probation officer in Butler County. Doerr later told Starnes

that “their sexual interactions would be a ‘business

relationship.’” Id.

In the summer of 2005, a job became available in the

Butler County Probation Office. Doerr, in his capacity as

President Judge, exercised supervisory authority over the

hiring of probation officers. Starnes wished to return to Butler,

her hometown, and Doerr made sure she was hired. After

Starnes started working in Butler County, Doerr began

summoning her to his chambers and cajoling her into sexual

relations. He also shared pornography with Starnes and

discussed sex on the telephone with her. This situation

continued for four years.

After their sexual relations ended in 2009, Doerr

continued to try to influence Starnes by asking her to film

herself performing sexual acts, flirting with her from his

position on the bench, holding her “hand while explaining that

he could help her return to her previous job,” and interrupting

her when she spoke to male staff. Id. at *1–2. In 2010, Starnes

began dating the man she later married, who was also a

Probation Officer in Butler County. He was harassed and

pushed into retirement by Butler County administrators.

4

In 2014, Doerr transferred Starnes to the Butler County

Domestic Relations Office at her request. Starnes regretted her

decision and asked to return to the Probation Office, which she

was entitled to do within 30 days. At first, Doerr did not allow

her to return. Thomas Holman, the Deputy Court

Administrator, told Starnes that “[t]he marriage was over” and

she would “have to sue Doerr” to get her previous job back. Id.

at *2, 8. Doerr eventually allowed Starnes to return, but only if

she signed a general release waiving all claims against the

Butler County Court of Common Pleas.

When Starnes returned to the Probation Office, she was

denied her own office, overtime, training opportunities, and the

right to serve on-call duty—opportunities she alleges her male

counterparts had. She also was isolated from other officers and

was not allowed to supervise other probation officers in the

field. And whenever she visited probationers, Doerr assigned

two male partners to accompany her because he believed it was

too dangerous.

Because Starnes suspected discrimination, she

contacted the United States Equal Employment Opportunity

Commission (EEOC) in February 2016 intending to file

charges. Within days of telling her supervisors (including

Doerr and Holman) of her intentions, Starnes was placed on a

“performance improvement plan” and she was told Doerr and

Holman were behind the move. One month prior to that,

Starnes had received a positive evaluation with no noted

performance issues.

B

After the EEOC issued a right-to-sue letter, Starnes filed

a five-count complaint (as Jane Doe) in the District Court

5

against Doerr, Holman, and the Butler County Court of

Common Pleas. Count I alleged a Title VII hostile work

environment claim against the County. Count II alleged that

Doerr violated her First Amendment rights by forcing her to

associate with him in an intimate fashion. Count III alleged a

violation of her Fourteenth Amendment equal protection rights

by discriminating against her on the basis of sex. Count IV

alleged Doerr and Holman retaliated against her for exercising

her First Amendment rights. Count V alleged Doerr and

Holman violated her Fourteenth Amendment right to due

process. After the District Court ordered her to do so, Starnes

identified herself in an amended complaint.

Starnes later filed a second amended complaint,

alleging the same five counts. Doerr moved to dismiss the

claims against him (Counts II-V) for several reasons, including

qualified immunity.1

On July 26, 2018, the District Court granted the motion

in part and denied it in part. It dismissed Starnes’s equal

protection claim (Count III) without prejudice with leave to

amend and dismissed her procedural due process claim (Count

V) with prejudice. It denied Doerr’s motion on all other

grounds and rejected his qualified immunity defense.

As the Court gave Starnes a final chance to amend the

equal protection claim, she filed a third amended complaint.

Doerr again moved to dismiss, incorporating arguments from

1

Holman and the Butler County Court also filed a

motion to dismiss, which the District Court denied in its July

26 order. They are not parties to this appeal.

6

his previous motion to dismiss and reiterating his qualified

immunity defense.

On October 4, 2018, the District Court denied the

motion, holding that Starnes sufficiently alleged that Doerr

discriminated against her because of sex. Starnes v. Court of

Common Pleas of Butler Cty., 2018 WL 4828515, at *1 (W.D.

Pa 2018) (Starnes II). The District Court did not discuss other

issues addressed in the opinion on the prior motion to dismiss,

except to note that Doerr misunderstood the decision on the

freedom of association claim (Count II) and that his “renewed

immunity arguments” were “improperly raised and legally

unsound.” Id. at *1 n. 2.

Doerr appealed to our Court. Starnes moved to dismiss

Doerr’s appeal as untimely, claiming the July 26 order was not

appealed within thirty days, as required by the Federal Rules

of Appellate Procedure, and the October 4 order was an

unappealable interlocutory order. A motions panel of this

Court referred Starnes’s motion to dismiss the appeal to the

merits panel, so we address it now.

II

The District Court had subject matter jurisdiction under

28 U.S.C. §§ 1331 and 1343. The “collateral order doctrine”

gives us jurisdiction under 28 U.S.C. § 1291 to review certain

interlocutory orders. Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541, 545 (1949). An order denying a defendant

qualified immunity can constitute such an order. Mitchell v.

Forsyth, 472 U.S. 511, 526–27 (1985). An appeal must be filed

within thirty days after entry of the order or judgment appealed

from. FED. R. APP. P. 4(a). Our review is plenary. See Bistrian

v. Levi, 696 F.3d 352, 364 (3d Cir. 2012).

7

Starnes argues we lack jurisdiction because Doerr failed

to timely appeal the July 26 order that “conclusively

determined” the qualified immunity issue. Starnes Br. 1–2

(citing FED. R. APP. P. 4(a)(1)). In order to be appealable,

collateral orders must “conclusively determine” an issue,

meaning the resolution of the issue must be “complete, formal,

and . . . final.” Harris v. Kellogg Brown & Root Serv’s, Inc.,

618 F.3d 398, 401 (3d Cir. 2010) (citation omitted). Orders

denying qualified immunity ordinarily are conclusive in one of

two ways: (1) either “there will be nothing in the subsequent

course of the proceedings in the district court that can alter the

court’s conclusion that the defendant is not immune”; or

(2) “the court’s denial . . . finally and conclusively determines

the defendant’s claim of right not to stand trial [or undergo

“the burdens of broad-reaching discovery”] on the plaintiff’s

allegations.” Mitchell, 472 U.S. at 526–527. In either case,

“Cohen’s threshold requirement of a fully consummated

decision is satisfied.” Id. (quoting Abney v. United States, 431

U.S. 651, 659 (1977)).

The Court’s October 4 order denying qualified

immunity fits into the second category. It finally and

conclusively subjects Doerr to the burdens of discovery and

involved purely legal questions. It is therefore a final decision

for purposes of the collateral order doctrine. See Vanderklok v.

United States, 868 F.3d 189, 196–97 (3d Cir. 2017). So for

Starnes to prevail on her jurisdictional argument, we would

have to find that Doerr’s failure to appeal the District Court’s

July 26 order denying qualified immunity and granting Starnes

leave to file an amended complaint precluded him from

challenging that denial of qualified immunity on appeal from

subsequent orders that denied him qualified immunity. We

8

discern no reason why the July 26 order should have such

preclusive effect.

In its July 26 order, the District Court decided the

qualified immunity issue for most of Starnes’s claims, but it

granted her leave to amend. Had Starnes chosen to stand on her

second amended complaint, the District Court’s order certainly

would have become an appealable interlocutory order. See In

re Westinghouse Sec. Litig., 90 F.3d 696, 705 (3d Cir. 1996).2

But she filed a third amended complaint, and Doerr asserted

qualified immunity by incorporating arguments he had made

in his prior motion. The District Court then issued the October

4 order, which conclusively determined that litigation would

proceed as to the amended claim as well as those addressed in

July. Doerr then timely appealed that final, appealable

interlocutory order in accordance with Rule 4(a).

In a previous decision, we explained that the Rule 4(a)

deadline “applies to ‘all appealable orders, including collateral

orders, specifically orders denying immunity.’” In re

Montgomery County, 215 F.3d 367, 372 (3d Cir. 2000)

(quoting Weir v. Propst, 915 F.2d 283, 286 (7th Cir. 1990)).

There, we quoted approvingly the Seventh Circuit’s statement

that if “the deadline [to appeal an interlocutory order] is

missed, th[at] order is not appealable. The defendant must then

wait until another appealable order . . . is entered, upon appeal

of which he can challenge any interlocutory order that has not

become moot.” Id. (internal citation omitted). Doerr did just

2

We need not, and do not, decide whether an order

denying qualified immunity but granting narrow leave to

amend, like the July order here, can ever be immediately

appealable when a plaintiff does not elect to stand on her

complaint.

9

that, “wait[ing] until another appealable order [on October 4

was] entered.” Id. The qualified immunity issue was not moot

and Doerr appealed the October 4 order well before the 30 days

expired.

Finally, “the historic federal policy against piecemeal

appeals” also supports our holding. Sears, Roebuck & Co. v.

Mackey, 351 U.S. 427, 438 (1956). As the Supreme Court has

explained:

From the very foundation of our judicial system

the object and policy of the acts of congress in

relation to appeals and writs of error . . . have

been to save the expense and delays of repeated

appeals in the same suit, and to have the whole

case and every matter in controversy in it decided

in a single appeal.

McLish v. Roff, 141 U.S. 661, 665–66 (1891). On Starnes’s

view, Doerr would have to appeal each order of the District

Court denying qualified immunity. Forcing him to file two or

more separate appeals on the qualified immunity issue at the

pleadings stage would contravene our duty to “protect the

integrity of the congressional policy against piecemeal

appeals.” Switz. Cheese Ass’n v. E. Horne’s Mkt. Inc., 385 U.S.

23, 25 (1966). Accordingly, we hold that Doerr’s appeal is

timely and we have jurisdiction under § 1291.

III

Having established our jurisdiction to hear this appeal,

we turn to the merits of Doerr’s qualified immunity defense.

10

“In considering whether qualified immunity attaches,

courts perform a two-pronged analysis to determine: (1)

‘whether the facts that [the] plaintiff has alleged . . . make out

a violation of a constitutional right,’ and (2) ‘whether the right

at issue was ‘clearly established’ at the time of [the]

defendant’s alleged misconduct.’” Kedra v. Schroeter, 876

F.3d 424, 434 (3d Cir. 2017) (alterations in original) (quoting

Pearson v. Callahan, 555 U.S. 223, 232 (2009)).

For a constitutional right to be clearly established, “[t]he

contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). We

ask if the case law at the time of the violation would have put

the official on “fair notice” that his conduct violated the

plaintiff’s rights. Hope v. Pelzer, 536 U.S. 730, 739 (2002). In

other words, the “existing precedent must have placed the

statutory or constitutional question beyond debate.” Ashcroft v.

al-Kidd, 563 U.S. 731, 741 (2011).

To determine whether a right is clearly established,

“[w]e look first to applicable Supreme Court precedent” and if

“none exists, it may be possible that a ‘robust consensus of

cases of persuasive authority’ in the Court[s] of Appeals could

clearly establish a right for purposes of qualified

immunity.” L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 247–48

(3d Cir. 2016) (alteration in original) (citation omitted).

A

We first consider Doerr’s argument that the District

Court erred in denying him qualified immunity on Starnes’s

Fourteenth Amendment equal protection claim (Count III). We

disagree and hold that Starnes stated plausible claims for sex

11

discrimination in violation of the Equal Protection Clause. The

District Court did not err in denying Doerr qualified immunity.

1

Starnes first alleges that Doerr violated her equal

protection rights by treating her differently from her male

colleagues because of her sex. The District Court found

Starnes’s allegations of sexual harassment “more than

sufficiently allege[d] severe and pervasive discrimination”

under the Fourteenth Amendment. Starnes I, 2018 WL

3586835, at *8. It also found Starnes had alleged that Doerr

denied her field-visit opportunities he gave male officers and

prevented her from working as a standby probation officer,

which cost her the “opportunity to acquire overtime and comp

time.” Starnes II, 2018 WL 4828515, at *2. According to the

District Court, these facts plausibly stated an equal protection

claim. Id. (citing Boykins v. Ambridge Area Sch. Dist., 621

F.2d 75, 80 (3d Cir. 1980)). We agree.

The Equal Protection Clause proscribes sex-based

discrimination. Keenan v. City of Philadelphia, 983 F.2d 459,

465 (3d Cir. 1992). We analyze Starnes’s § 1983 equal

protection claim using the McDonnell Douglas framework that

applies in Title VII cases. See St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 506 n. 1 (1993); McKenna v. Pac. Rail Serv., 32

F.3d 820, 825 n.3 (3d Cir. 1994); see also Lewis v. Univ. of

Pittsburgh, 725 F.2d 910, 915 n.5 (3d Cir. 1983) (explaining

that Title VII and § 1983 share the same elements for

discrimination purposes).

Title VII makes it an “unlawful employment practice

for an employer to . . . discriminate against any individual with

respect to [her] compensation, terms, conditions, or privileges

12

of employment, because of such individual’s . . . sex.” 42

U.S.C. § 2000e–2(a). An employer violates Title VII if the

employee’s sex was one but-for cause of her disparate

treatment. Bostock v. Clayton County, 140 S. Ct. 1731, 1739–

40 (2020).

Starnes alleged she was treated worse than similarly

situated male probation officers in two ways: quid pro quo

sexual harassment and the denial of job entitlements. She

claimed Doerr coerced her into sexual relations, then continued

to make sexually suggestive gestures toward her and asked her

to perform sexual acts on herself after their relationship ended.

Starnes linked Doerr’s sexual advances with her hiring

and performance as a Butler County Probation Officer. As we

have stated:

[U]nwelcome sexual advances, requests for

sexual favors, and other verbal or physical

conduct of a sexual nature constitute [quid pro

quo ] sexual harassment when (1) submission to

such conduct is made either explicitly or

implicitly a term or condition of an individual’s

employment [or] (2) submission to or rejection

of such conduct by an individual is used as the

basis for employment decisions affecting such

individual.

Bonenberger v. Plymouth Township, 132 F.3d 20, 27 (3d Cir.

1997) (second and third alterations in original) (quoting

Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296 (3d Cir.

1997), abrogated on unrelated grounds by Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).

13

A triable claim exists when the plaintiff alleges that she

would not have been sexually harassed but for her sex. Bostock,

140 S. Ct. at 1744 (Title VII) (citing Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75 (1998) (same)). We have

likewise explained that “[t]he intent to discriminate on the

basis of sex in cases involving sexual propositions . . . is

implicit, and thus should be recognized as a matter of course.”

Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 214 (3d Cir.

2017) (citation omitted).

Starnes alleged Doerr forced her to engage in sexual

relations, shared pornography with her, and requested she send

him videos of herself performing lewd acts. She accused Doerr

of flirting with her in an attempt to restart sexual relations.

Starnes also alleged that their sexual encounters were

considered a “business relationship,” that Doerr had discussed

using his position to help her get hired in Butler County before

coercing her to engage in sexual relations, and that she felt

compelled to acquiesce to his demands because of his position

as her boss. And after they stopped having sex, Starnes alleged

that she was denied many terms and conditions of her

employment.

For example, Starnes claimed she was denied her own

office, overtime opportunities, and the ability to go into the

field and supervise other probation officers. She alleged that

her male counterpart could go into the field to supervise his

probationers, earn overtime, and attend supervisors’ meetings.

Finally, Starnes claimed she was not on the general email list

for probation officers and that Doerr assigned two males to

accompany her on field visits while the male probation officer

could choose his partner.

14

Accepting these allegations as true, Starnes stated

plausible claims for sex discrimination in violation of the Equal

Protection Clause because of quid pro quo sexual harassment

and the denial of benefits afforded to her male counterparts.

See id. Because the law is clearly established that this conduct

is actionable discrimination, the District Court did not err in

denying Doerr qualified immunity.

2

We also consider whether the District Court erred in

denying Doerr qualified immunity on Starnes’s § 1983 hostile

work environment claim. We hold it did not err.

Sexual harassment that creates a hostile work

environment clearly violates Title VII. Meritor Sav. Bank, FSB

v. Vinson, 477 U.S. 57, 67 (1986). Under Title VII, a hostile

work environment exists “when the workplace is permeated

with ‘discriminatory intimidation, ridicule, and insult,’ that is

‘sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working

environment.’” Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 116 (2002) (quoting Harris v. Forklift Sys., Inc., 510

U.S. 17, 21 (1993)). The Supreme Court has explained further

that “conditions” of employment cover not only economic or

tangible discrimination, but “the entire spectrum of disparate

treatment of men and women.” Id. (citations omitted).

To plead a hostile work environment claim, a plaintiff

must allege: “(1) [S]he suffered intentional discrimination . . .;

(2) the discrimination was severe or pervasive; (3) the

discrimination detrimentally affected her; (4) it would have

detrimentally affected a reasonable person in like

circumstances; and (5) a basis for employer liability is

15

present.” Komis v. Sec’y of U.S. Dep’t of Labor, 918 F.3d 289,

293 (3d Cir. 2019) (alteration in original) (quoting Jensen v.

Potter, 435 F.3d 444, 449 (3d Cir. 2006), overruled on other

grounds by Burlington N. & Santa Fe Ry. Co., 548 U.S. 53).

“[L]ess severe isolated incidents which would not themselves

rise to the level of [discrimination] may, when taken together

as part of ‘the overall scenario,’ evidence [discriminatory]

animus, and one severe incident may be enough to create a

hostile work environment.” Id. at 293–94.

Starnes alleged a hostile work environment under those

standards. She alleges Doerr—her supervisor as the President

Judge of Butler County—coerced her into engaging in sexual

relations, shared pornography with her, asked her to film

herself performing sexual acts, engaged in a pattern of

flirtatious behavior, scolded her for speaking with male

colleagues, assigned her duties forcing her to be close to him,

and treated her differently than her male colleagues. Taken

together, these allegations support severe or pervasive

discrimination such that the working environment was

subjectively and objectively offensive.

Doerr argues Starnes did not allege a clearly established

right because we have not previously held that a hostile work

environment is cognizable under § 1983. But we have been

clear that § 1983 shares the same elements for discrimination

purposes as a Title VII action. See Lewis, 725 F.2d at 915 n.5.

And a robust consensus of persuasive authority exists to clearly

establish that creating a hostile work environment constitutes a

§ 1983 violation. See, e.g., Lauderdale v. Tex. Dep’t of Crim.

Just., Inst. Div., 512 F.3d 157, 165–66 (5th Cir. 2007); Huff v.

Sheahan, 493 F.3d 893, 902 (7th Cir. 2007); Rivera v. P.R.

Aqueduct & Sewers Auth., 331 F.3d 183, 191–92 (1st Cir.

2003); Nieto v. Kapoor, 268 F.3d 1208, 1217–20 (10th Cir.

16

2001); Moring v. Ark. Dep’t. of Corr., 243 F.3d 452, 455 (8th

Cir. 2001); Watkins v. Bowden, 105 F.3d 1344, 1355 n.19 (11th

Cir. 1997); Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir. 1996);

Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir. 1994); Bator v.

Hawaii, 39 F.3d 1021, 1027–28 (9th Cir. 1994); Boutros v.

Canton Reg’l Transit Auth., 997 F.2d 198, 202–04 (6th Cir.

1993) (overruled on other grounds by Harris, 510 U.S. at 17).

Because the law is clearly established that the sexual

harassment Starnes alleged creates a hostile work environment

actionable under § 1983, the District Court did not err in

denying Doerr qualified immunity on Count III.

B

We turn now to Starnes’s First Amendment claims.

1

In Count IV, Starnes claimed Doerr violated her

freedom of expression and right to petition the government.

The District Court concluded that Starnes sufficiently pleaded

this claim and that Doerr was not entitled to qualified

immunity. We agree.

Beginning in 2015, Starnes took a variety of actions

protected by the First Amendment. After her request for on-

call duty in 2015 was rejected, she sent several “Right to

Know” requests to Butler County seeking information about

overtime pay for probation officers. She also told her

supervisors she planned to file a charge of discrimination with

the EEOC. After telling her supervisors about the complaint in

February 2016, Doerr and Holman placed her on a

17

“performance improvement plan” in March, even though she

had received a good evaluation at the end of January. App. 113.

The law is clearly established that Doerr may not

retaliate against Starnes for exercising her First Amendment

rights. Wilkie v. Robbins, 551 U.S. 537, 555 (2007). Official

retaliation for protected speech “offends the Constitution

[because] it threatens to inhibit exercise of the protected right.”

Hartman v. Moore, 547 U.S. 250, 256 (2006) (alteration in

original) (citation omitted). A plaintiff claiming retaliation

must allege “(1) constitutionally protected conduct, (2)

retaliatory action sufficient to deter a person of ordinary

firmness from exercising h[er] constitutional rights, and (3) a

causal link between the constitutionally protected conduct and

the retaliatory action.” Mirabella v. Villard, 853 F.3d 641, 649

(3d Cir. 2017) (citation omitted).

Starnes’s complaint to the EEOC was constitutionally

protected. See Anderson v. Davila, 125 F.3d 148, 161 (3d Cir.

1997). “A public employee’s statement is protected activity

when (1) in making it, the employee spoke as a citizen, (2) the

statement involved a matter of public concern, and (3) the

government employer did not have ‘an adequate justification

for treating the employee differently from any other member

of the general public.’” Hill v. Borough of Kutztown, 455 F.3d

225, 241–42 (3d Cir. 2006) (quoting Garcetti v. Ceballos, 547

U.S. 410, 418 (2006)). Starnes’s report of sexual harassment

and discriminatory conduct by the President Judge falls

squarely within the protected conduct envisioned by the

Constitution.

A public employee speaks as a citizen when she makes

her statement outside the scope of her official duties. See id. A

matter is of public concern if it “can be fairly considered as

18

relating to any matter of political, social or other concern to the

community.” Id. at 242–43 n.25 (citation omitted). When an

employee exposes malfeasance by a government official, it is

a matter of public concern. Azzaro v. County of Allegheny, 110

F.3d 968, 978–79 (3d Cir. 1997). As the District Court

correctly reasoned, Starnes made her report to the EEOC as a

citizen and the statement involved a matter of public concern

because it dealt with sexual malfeasance and an abuse of power

by a judge. Additionally, Starnes’s EEOC complaint is

“petitioning activity” because her complaint was not clearly

frivolous or a sham. See Hill, 455 F.3d at 242 n.24; Anderson,

125 F.3d at 161.

Next, we must decide whether Starnes sufficiently

alleged Doerr retaliated against her as a result of her report to

the EEOC. Retaliatory action in this § 1983 case is conduct

“sufficient to deter a person of ordinary firmness from

exercising h[er] [constitutional] rights.” Rauser v. Horn, 241

F.3d 330, 333 (3d Cir. 2001) (second alteration in original)

(citation omitted).

Starnes alleged that days after she told her supervisors

about her complaint, Doerr and Holman placed her on a

performance improvement plan. Such a plan would have a

chilling effect on a person of ordinary firmness because she

could reasonably believe pursuing her constitutional rights

could jeopardize her employment and prospects for

advancement. So Starnes alleged retaliatory action in response

to her protected conduct.

Finally, Starnes must plead “but-for” causation between

her constitutionally protected conduct and the retaliation.

Hartman, 547 U.S. at 256. She must allege “the elements of

retaliatory animus as the cause of injury, and the defendant will

19

have the . . . opportunity to respond to a prima facie case by

showing that the action would have been taken anyway,

independently of any retaliatory animus.” Id. at 260–61. A

causal link may be established by showing “unusually

suggestive temporal proximity.” Lauren W. ex rel. Jean W. v.

DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

Starnes alleged that she told Holman and Doerr about

her EEOC complaint in February 2016. And they placed her on

a performance improvement plan within days. This temporal

proximity between the protected activity and retaliation

suggests causation. See, e.g., Jalil v. Avdel Corp., 873 F.2d

701, 708 (3d Cir. 1989) (retaliatory conduct two days after an

EEOC claim showed a causal link). When combined with

Starnes’s allegation that she had received a positive

performance review a month before she was put on the

performance improvement plan, we conclude that the

allegations, “looked at as a whole, . . . suffice to raise the

inference” of a causal link. Kachmar v. SunGard Data Sys.,

Inc., 109 F.3d 173, 177 (3d Cir. 1997).

In sum, Starnes has pleaded that she spoke as a citizen

on a matter of public concern and that she suffered retaliation

as a result of the exercise of her clearly established

constitutional right. We will therefore affirm the District

Court’s order denying Doerr’s qualified immunity defense on

Count IV.

2

We turn next to Doerr’s argument that he is entitled to

qualified immunity on Starnes’s First Amendment association

claim (Count II). The District Court denied Doerr qualified

immunity on this claim as well. We disagree and will reverse.

20

Starnes alleged that Doerr “violat[ed] her association

rights by imposing or seeking to impose an intimate

relationship on her.” Dkt. No. 34, at 11. Specifically, she

averred that since she ended their sexual relationship, Doerr

acted to coerce her into maintaining it, insisting she appear in

his court so he could “look her over,” transferring her to the

Juvenile Division so she would “be close to him,” App. 118,

and scolding her when she spoke to other men at work. App.

118. Starnes also alleged that Doerr once “ran into [her] and

her future husband at a Lowe’s store, and remarked that he

hoped they were off the clock.” App. 72 ¶ 33. And Starnes

alleged, in conclusory fashion, that she and her future husband

“were subjected to harassment at the hands of the Court’s

administration under the direction or acquiescence of Doerr,”

eventually causing her husband to retire. App. 105 ¶ 34.

Starnes married her husband despite the harassment.

Contrary to the claim as pleaded, the District Court

understood Starnes to allege that Doerr unconstitutionally

interfered with her relationship with her boyfriend (now

husband). It held that Doerr’s alleged acts showed sufficient

interference with that relationship to state an intimate

association claim. Starnes I, 2018 WL 3586835, at *4–5 (citing

Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d

435, 441–42 (3d Cir. 2000)). Because this is a civil rights case,

we must determine whether Starnes is entitled to amend her

intimate association claim. Shane v. Fauver, 213 F.3d 113, 116

(3d Cir. 2000). So we will address both the claim Starnes

pleaded and the claim construed by the District Court.

We begin with the claim as the District Court construed

it. The right to freedom of association secures “a right to

associate for the purpose of engaging in those activities

protected by the First Amendment—speech, assembly, petition

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for the redress of grievances, and the exercise of religion.”

Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). It also

protects an individual’s right “to enter into and maintain certain

intimate human relationships,” id. at 617, which is “a

fundamental element of personal liberty.” Id. at 618. But not

every intimate relationship is constitutionally protected. See

Rode v. Dellarciprete, 845 F.2d 1195, 1204 (3d Cir. 1988)

(discussing factors in determining whether a relationship has

constitutional protection). The Constitution protects “certain

kinds of highly personal relationships” with “a substantial

measure of sanctuary from unjustified interference by the

State.” Roberts, 468 U.S. at 618. These relationships include

“those that attend the creation and sustenance of a family—

marriage, . . . the raising and education of children, . . . and

cohabitation with one’s relatives.” Id. at 619. In these domains,

a plaintiff must allege conduct that interferes “directly and

substantially” with her right to form or maintain that intimate

relationship. See Zablocki v. Redhail, 434 U.S. 374, 387

(1978).

Neither the Supreme Court nor this Court has held that

unmarried, romantic partners have a fundamental right to

intimate association. Nor is there a robust consensus of

persuasive authority recognizing such a right. Compare Poirier

v. Mass. Dep’t of Corr., 558 F.3d 92, 96 (1st Cir. 2009) (“The

unmarried cohabitation of adults does not fall under any of the

Supreme Court’s bright-line categories for fundamental rights

in this area.”)) (citing Roberts, 468 U.S. at 619)), and Cameron

v. Seitz, 38 F.3d 264, 274–76 (6th Cir. 1994) (“[T]he

constitutional protection of the right of marital association did

not clearly extend to a dating relationship or to engagement.”),

with Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 58 (2d

Cir. 2014) (betrothed couples are entitled to the same intimate

22

association protections as married couples), and Christensen v.

County of Boone, 483 F.3d 454, 463 (7th Cir. 2007) (unmarried

couples receive the same intimate association protections).

Thus, Doerr is entitled to qualified immunity on the

claim as construed by the District Court (that Doerr interfered

with Starnes’s intimate relationship with her husband). Despite

recognizing a gap in controlling authority, the District Court

relied on three out-of-jurisdiction opinions to hold that an

“official’s conduct intending to disrupt a marriage violates the

First Amendment.” Starnes I, 2018 WL 3586835, at *9 (citing

Christensen, 483 F.3d at 465; Griffin v. Strong, 983 F.2d 1544,

1549 (10th Cir. 1993); Gaspers v. Ohio Dep’t of Youth Servs.,

648 F.3d 400, 416 (6th Cir. 2011)).

The District Court defined the violative conduct too

broadly for qualified immunity purposes. al-Kidd, 563 U.S. at

742 (warning courts not to define clearly established law at “a

high level of generality”). While the factual circumstances of

persuasive authority need not be “directly on point for a right

to be clearly established,” White v. Pauly, 137 S. Ct. 548, 551

(2017) (per curiam) (quotations omitted), they must be

substantially similar enough that “the violative nature of [the]

particular conduct is clearly established,” al-Kidd, 563 U.S. at

742 (emphasis added). Here, a robust consensus of persuasive

authority must exist to put any reasonable official on notice

that the particular conduct of harassing a married couple in the

workplace could violate someone’s association rights.

The cases cited by the District Court do not suffice to

put the argument “beyond debate.” al-Kidd, 563 U.S. at 741.

For starters, Christensen involves an unmarried couple. 483

F.3d at 457. Second, in Griffin, the Tenth Circuit considered an

association claim brought by the subject of a police

23

investigation who complained that a police officer’s lying to

the subject’s wife cost him his marriage. 983 F.2d at 1548–49

(holding that although marital association is constitutionally

protected in general, the facts were not actionable in that case).

A police officer’s dishonesty is not sufficiently similar to

harassment in the workplace. Third, in Gaspers, the Sixth

Circuit considered a case where a wife was allegedly

terminated from her position as superintendent of a

correctional facility because of her marriage to a training

officer at the same facility. 648 F.3d at 403. This is not enough

to constitute a robust consensus of caselaw to put any

reasonable official on notice that harassment violates an

employee’s association rights. See Ullery v. Bradley, 949 F.3d

1282, 1294–98 (10th Cir. 2020) (finding right clearly

established with similar reported cases from six sister circuits

and no cases holding otherwise); Turner v. Lieutenant Driver,

848 F.3d 678, 687 (5th Cir. 2017) (finding law not clearly

established with only three sister circuits).

Even had such a right been clearly established, it would

be unavailing to Starnes. She alleged that Doerr once “ran into

[her] and her future husband at a Lowes store, and remarked

that he hoped they were off the clock.” App. 72 ¶ 33. Apart

from the fact that Starnes was not married at the time this

comment was made, this type of off-hand remark is insufficient

to establish direct and substantial interference with her right to

establish or maintain that relationship. See Zablocki, 434 U.S.

at 386–87. In fact, Starnes alleged that she married her husband

despite the harassment.

We next consider Starnes’ claim as she pleaded it.

Starnes provides no support for her allegation that an

individual can violate another’s association rights by forcing

them to associate with that individual. So her claim as pleaded

24

does not implicate a right that is clearly established. al-Kidd,

563 U.S. at 741. Accordingly, Doerr is entitled to qualified

immunity on Starnes’s pleaded claim.

Doerr is entitled to qualified immunity on both claims

of liability because neither the association claim Starnes

pleaded nor the one the District Court construed alleges a

violation of a clearly established right. As such, amendment

would be futile. See Fauver, 213 F.3d at 116; Grayson v.

Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002). Thus,

we will reverse the District Court’s denial of qualified

immunity on Starnes’s intimate association claim.

* * *

For the reasons stated, we will affirm in part and reverse

in part. We will affirm the District Court’s order denying Doerr

qualified immunity on Starnes’s Fourteenth Amendment equal

protection claim (Count III) and her First Amendment

retaliation claim (Count IV). We will reverse the District

Court’s order denying Doerr qualified immunity on Starnes’s

First Amendment association claim (Count II). The case will

be remanded for further proceedings consistent with this

opinion.

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