Lou Ann Merkle v. Upper Dublin School District Upper Dublin Township Police Department Margaret Thomas Clair Brown, Jr., Dr. Jack Hahn, Detective

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. § 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 Mer-kle have done? What the majority does 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 *799had 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., 196 Pa.Super. 109, 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, 334 Pa. 7, 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 796, plainly are distinguishable from those in that ease. 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 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 emphasizé 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, 127 L.Ed.2d 114 (1994), for a 42 U.S.C. § 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

*800Merkle 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, 50 L.Ed.2d 471 (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

In fact there is no evidence that Mer-kle’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, *801we must affirm. But by drawing such an inference, we effectively will eliminate the plaintiffs 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 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 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 *802fear 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 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 796. 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 796. 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 plaintiffs 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 *803will 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 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.

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.

. 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 Mer-kle had committed a criminal offense.

. 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 *800elements 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.

. 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, 527 U.S. 1006, 119 S.Ct. 2342, 144 L.Ed.2d 239 (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.

. 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.

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