Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-13-2008
Stump v. Richland
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3810
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Recommended Citation
"Stump v. Richland" (2008). 2008 Decisions. Paper 1235.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1235
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 05-3810
JEFFREY R. STUMP
Appellant
v.
RICHLAND TOWNSHIP, RICHLAND TOWNSHIP BOARD of SUPERVISORS, et al
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(02-CV-06955)
District Court: Hon. Bruce W. Kauffman
Argued: 10/24/07
Before: McKEE, BARRY, and FISHER, Circuit Judges,
(Filed: May 13, 2008)
Charles J. Weiss, Esq.
400 Maryland Dr.
P.O. Box 7544
Fort Washington, PA 19034-7544
Counsel for Appellant
Frank A. Chenak, Esq.
Ballard, Spahr, Andrews & Ingersoll
1735 Market Street
51 st Floor
Philadelphia, PA 19103
Counsel for Appellee
Opinion
McKEE, Circuit Judge.
Appellant Jeffrey Stump appeals an order of the district court granting summary
judgment in favor of his former employer, Richland Township. For the reasons set forth
below, we will reverse the district court on the First Amendment retaliation claim.
Inasmuch as we are writing for the parties who are familiar with this case, we
need not set forth the factual or procedural background.
I. General Legal Principles
A township/municipality or other public employer “may not [lawfully] discharge
an employee on a basis that infringes upon the employee’s constitutionally protected
interest in the freedom of speech.” Rankin v. McPherson, 483 U.S. 378, 383 (1987).
Thus, public employees have the right to speak on matters of public concern without fear
of retaliation from their employer. See Baldassare v. New Jersey, 250 F.3d 188, 194
(3d Cir. 2001). Nevertheless, when governmental entities act as employers, they have the
same interest in promoting the efficiency of their employees’ services as any other
employer. See Pickering v. Board of Education, 391 U.S. 563, 568 (1968).
We engage in a three pronged inquiry when balancing the First Amendment rights
of public employees with the right of governmental employers. See Baldassare v. New
Jersey, 250 F.3d at 194-195. Plaintiff must first establish that the speech in question was
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protected, and that it was a motivating factor in the alleged retaliatory employment action.
Id. at 195. The employer can then rebut the claim of retaliation by establishing that it
would have taken the same employment action “even in the absence of the protected
conduct.” Id. Whether the speech is protected is a question of law. Issues of causation
and whether the employer would have done the same thing even absent the protected
speech are questions of fact. Id. Here, the district court granted summary judgment to the
employer after concluding that the speech in question was not protected as a matter of
law. Accordingly, that is the only issue we need to address.
Speech involves a matter of public concern if the content, form, and context
establish that the speech involves a matter of political, social, or other concern to the
community. Connick v. Myers, 461 U.S. 138, 146-148 (1983). In addition, the public’s
interest in the speech must outweigh the government’s countervailing interest in
discharging its responsibilities to the public. Id. at 150-151.
II. Stump’s Speech
Stump’s allegations that township officials violated Pennsylvania law clearly touch
on matters of public concern. Speech that purports to expose wrongdoing by public
officials occupies the highest rung of First Amendment protection. Baldassare, 250 F.3d
at 198.
Accordingly, we reject the Township’s attempt to negate the public nature of
Stump’s allegations by arguing that Stump was motivated by personal grievances.
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Although the job dissatisfaction, employment grievances, and the relationship between
Stump and the Township are all quite relevant to our inquiry, the inquiry is not controlled
by Stump’s motivation in making the speech. Indeed, it is to be expected that matters of
public concern may sometimes only be disclosed because an employee becomes
sufficiently upset about something else to finally “blow the whistle.”
The Township seeks to compare Stump’s speech with the speech in Connick and
Versarge v. Township of Clinton, 984 F.2d 1359 (3d Cir. 1993). In both of those cases,
the context of the speech established its private nature. However, the Township ignores
several distinctions between Stump’s speech and the speech at issue in those cases. First,
the questionnaire in Connick contained only one question relating to a matter of public
concern; the other thirteen questions related to purely personal matters regarding an
employee’s dissatisfaction over a transfer. Connick, 461 U.S. at 148-149. Moreover, the
plaintiff in Connick admitted that her speech was motivated by a personal grievance with
her supervisor. Id., at 153 ("Myers acknowledges that it is no coincidence that the
questionnaire followed upon the heels of the transfer notice.")
The plaintiff in Versarge also admitted that his speech was motivated by a personal
grievance, and the speech did not transcend the grievance. See Versarge, 984 F.2d at
1365 ("the record contains affidavits from other volunteer firefighters attesting that,
shortly before writing his letter on the remodeling, plaintiff told them that he was going to
make trouble for the [fire department] because of [its] . . . position on the street closure
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issue.")
Here, however, Stump testified that he first raised his concerns one month after he
began working for the Township. The district court was required to accept that
testimony, and Stump’s other allegations, as true for purposes of the Township’s motion
for summary judgment.
The district court also erred in concluding that the disruption that resulted
outweighed Stump’s interest in engaging in the speech. It should not be the least
surprising that accusations of impropriety would cause some disruption; that does not
necessarily negate the public nature of those accusations. As we explained in O’Donnell
v. Yanchulis, 875 F.2d 1059, 1062 (3d Cir. 1989), an employee’s interest in exposing
wrongdoing by public officials outweighs any incidental disruption that follows. “[I]t
would be absurd to hold that the First Amendment generally authorizes corrupt officials
to punish subordinates who blow the whistle simply because the speech somewhat
disrupted the office.” Id. We also explained that disruption, even to the extent of
demoralization, is not enough to overcome the First Amendment’s protection of the
public nature of such speech. Id.
Accordingly, we conclude that the speech here was public in nature.
III.
Wage Payment Collection Law Claim
The district court denied Stump’s WPCL claim because the statute does not apply
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to public employers. Stump now concedes that the WPCL does not apply, but argues that
his WPCL claim should be read as a breach of contract claim. He believes that all WPCL
claims include an underlying breach of contract claim, and dismissing the WPCL claim
does not dismiss the underlying breach of contract claim. We can not agree with this
meritless argument.
WPCL claims differ substantially from common-law breach of contract claims,
and Stump cites no cases to the contrary. If Stump truly believes that he has a cause of
action for a breach of contract he should have pled a claim for breach of contract or
amended his complaint to include such a claim. Having failed to do that, he can not now
attempt to try to “morph” his statutory wage claim into a breach of contract claim.
IV.
For all of the above reasons, we will reverse the district court’s dismissal of
Stump’s First Amendment retaliation claim, and affirm the court’s dismissal of his Wage
Payment Collection Law claim.
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