Stephen Schleig v. Borough of Nazareth

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 16-3499
_____________

STEPHEN SCHLEIG

v.

BOROUGH OF NAZARETH; THOMAS M. TRACHTA, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; MAYOR FRED C. DAUGHTERY, JR., AND;
MAYOR CARL R. STRYE, JR., IN THEIR INDIVIDUAL AND OFFICIAL
CAPACITIES; DANIEL JAMES TROXELL, IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY; RANDALL MILLER, IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY; PAUL KOKOLUS, JR., IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY; LARRY STOUDT; FRANK MAUREK; MICHAEL KOPACH;
CYNTHIA WERNER; CHARLES DONELLO; DANIEL CHIAVAROLI;
WILLIAM MATZ; BRIAN F. REGN; JOHN N. SAMUS; LANCE E. COLONDO;
CHRISTIAN AUDENRIED; CARL FISCHL, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY

Daniel James Troxell,
Appellant
_______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5-15-cv-04550)
District Judge: Hon. Jeffrey L. Schmehl
_______________

Submitted Under Third Circuit LAR 34.1(a)
June 15, 2017

Before: JORDAN, KRAUSE, and GREENBERG, Circuit Judges.

(Filed: June 15, 2017)
 _______________

OPINION*
_______________

JORDAN, Circuit Judge.

This appeal is brought by a police officer, Daniel James Troxell, who was

employed by the Police Department of the Borough of Nazareth, Pennsylvania. A fellow

officer, Stephen Schleig, accused Troxell of threatening him with termination, physical

violence, and even death, in retaliation for Schleig’s active involvement in a police union.

Troxell moved to dismiss Schleig’s complaint on the basis of qualified immunity, and

that motion was denied by the District Court.

On appeal, Troxell argues that his conduct does not constitute retaliation and that,

even if it did, the law did not clearly establish that his conduct was improper. Because

the District Court correctly determined that Troxell’s claim of qualified immunity could

not prevail at a preliminary stage of the case, we will affirm.

I. FACTS1

Schleig was employed as an officer with the Nazareth Borough Police

Department. [App. at 22.] In 2009, he became involved in the local police union and

*
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
1
In reviewing the District Court’s rejection of Troxell’s motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), we “are required to accept all well-pleaded
allegations in the complaint as true and to draw all reasonable inferences in favor of the
non-moving party” – in this case Schleig. Phillips v. Cty. of Allegheny, 515 F.3d 224,
231 (3d Cir. 2008) (internal quotation omitted).

2
participated in union advocacy by filing grievances and reporting on purportedly unfair

labor practices in the police department. [App. at 23.] In part because of his union

activities, Schleig was heavily criticized by Chief of Police Thomas M. Trachta and other

Borough officials and police officers. [App. at 24-28.] Trachta in particular retaliated

against Schleig by publicly berating him, questioning his mental health, reassigning him

to less desirable shifts, and giving him undesirable tasks. [App. at 25, 28, 31.]

Tensions in the Police Department further intensified when another officer,

Frederick J. Lahovski, Jr., who was also active in the labor union, brought a lawsuit

against the Police Department alleging violations of constitutional rights. [App. at 32.]

Trachta and other officers, including Troxell, suspected that Schleig was assisting

Lahovski with his lawsuit by providing him with copies of incident reports and other

documents. [App. at 32.]

In November 2013, animosity within the department increased when Troxell

confronted Schleig. [App. at 32.] According to Schleig’s Complaint,

Troxell stated … that he suspected another police officer was assisting
Lahovski with his case by providing Lahovski with copies of incident
reports involving … Troxell, and … Troxell intended to harm that
individual once he learned his identity. Specifically, … Troxell indicated
to [Schleig] that he intended to get the individual fired, file criminal
charges against the individual for alleged theft, and further go after the
individual physically and cause them [sic] severe harm as well as severe
harm to the individual’s family. … Troxell proceeded to threaten [Schleig]
and any individual found to be supporting Lahovski by stating that he [i.e.,
Troxell] and … Trachta were going to end the alleged culprit’s life. …
Troxell made very clear to [Schleig] that he was very serious and was in
no way exaggerating or joking.

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(App. at 32-33.) As the verbal abuse proceeded, Troxell revealed that he and Trachta had

a plan to spy on those suspected of being sympathetic to Lahovski, including Schleig.

[App. at 33.] Troxell specifically questioned whether Schleig had given Lahovski a copy

of Troxell’s resume. [App. at 33.] Troxell then

indicated that [the Borough of Nazareth] … Trachta … and [the Borough
Council] were working on going after [Schleig] because they suspected that
[Schleig] was assisting Lahovski with his lawsuit … . Troxell continued by
telling [Schleig] that … Trachta had evidence that was going to cause
[Schleig] to lose his job and get arrested because he was suspected of being
the “spy for the union.”

(App. at 33.)

The harassing conduct from Trachta and other officers and Borough officials

continued until Schleig brought the present lawsuit. [App. at 35-40.] Schleig sued the

Borough of Nazareth, its present and former Mayors and the Borough Council, Trachta,

Troxell, and other Police Department officers (collectively the “Defendants”) pursuant to

42 U.S.C. § 1983. [App. at 16-21.] He alleged that the Defendants conspired to violate

and violated his First Amendment rights of free speech, free association, and the ability to

petition for redress of grievances. [App. at 41-51.] He also argued that the Defendants

conspired to violate and violated his rights to substantive and procedural due process and

equal protection under the Fourteenth Amendment. [App. at 51-53.]

After the Defendants filed a motion to dismiss, Schleig filed an Amended

Complaint. [App. at 4, 16] The Defendants then submitted a motion to dismiss the

Amended Complaint, which the District Court granted in part. [App. at 4.] The Court

dismissed with prejudice the claims against some of the Defendants, including the former

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Mayor and other members of the Borough Council, and it also dismissed the Fourteenth

Amendment and conspiracy claims against all Defendants. [App. at 1-2.] It refused,

however, to dismiss Schleig’s First Amendment retaliation claims against Troxell and

some of the other Defendants, [App. at 4.] and it denied Troxell’s motion to dismiss on

the basis of qualified immunity. [App. at 9.] The Court concluded that “[Schleig’s]

Amended Complaint is sufficient to plead a claim for retaliation,” (App. at 9), and that

Troxell’s qualified immunity defense failed because “[i]t is clearly established that a

public employee has the constitutional right to speak as a citizen on matters of public

concern without fear of retaliation.” (App. at 10 (citing Dougherty v. Sch. Dist. of

Philadelphia, 772 F.3d 979, 987 (3d Cir. 2014)).) Troxell then brought this timely appeal

challenging the District Court’s refusal to grant him qualified immunity.

II. DISCUSSION2

Qualified immunity protects government actors from suit “insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Our analysis of qualified immunity proceeds in two parts, which may be tackled in either

2
The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C.
§ 1343(a)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291. “[A] district court’s
denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an
appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291[.]” Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985). In this case, we have jurisdiction because the
question at issue is “whether the law allegedly violated was clearly established at the time
of the defendant’s actions … the type of legal issue immediately appealable as a final
decision.” Zaloga v. Borough of Moosic, 841 F.3d 170, 174 n.3 (3d Cir. 2016) (internal
quotation marks omitted). We exercise plenary review over the District Court’s denial of
the motion to dismiss. Acierno v. Cloutier, 40 F.3d 597, 609 (3d Cir. 1994).

5
order based on our “sound discretion.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

First, we consider “whether the alleged facts, taken in the light most favorable to the

injured party, ‘show [that] the [government official]’s conduct violated a constitutional

right[.]’” Zaloga v. Borough of Moosic, 841 F.3d 170, 174 (3d Cir. 2016) (first and

second alterations in original) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).

Second, we “ask whether the right was clearly established ‘in light of the specific context

of the case, [and] not as a broad general proposition.’” Id. (alteration in original)

(quoting Saucier, 533 U.S. at 201).

On appeal, Troxell argues that the District Court erred when it concluded that his

remarks could constitute unconstitutional threats of retaliation. He also argues that, even

if he threatened Schleig, his actions did not violate clearly established law. But based on

the detailed allegations of the Amended Complaint – allegations that we are bound to

accept as true at this stage of the proceedings – Troxell’s threats against Schleig

constitute textbook retaliatory speech, and “every reasonable official” in Troxell’s shoes

“would have understood that what he [was] doing violate[d]” Schleig’s right against

retaliation. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

A. Schleig Made a Valid Claim of First Amendment Retaliation

As a general principle, it is well established that “public employees do not

surrender all of their First Amendment rights by reason of their employment” and may

“speak[] as citizens about matters of public concern,” without retaliation or punishment.

Dougherty, 772 F.3d at 987 (quoting Garcetti v Ceballos, 547 U.S. 410, 417 (2006)).

6
Speech that is critical of unlawful labor practices qualifies as speech on matters of public

concern, see Davignon v. Hodgson, 524 F.3d 91, 102 (1st Cir. 2008) (explaining that,

when labor speech is intended “to publicly express criticism of management,” that fact

“weigh[s] heavily” in finding that the speech involved a matter of public concern); Clue

v. Johnson, 179 F.3d 57, 61 (2d Cir. 1999) (holding that “activities on behalf of a union

faction that necessarily entail a substantial criticism of management raise matters of

public concern”), so long as it addresses “fundamental problems” reaching beyond the

employee’s “day-to-day minutiae,” Watters v. City of Phila., 55 F.3d 886, 894 (3d Cir.

1995), and does not solely discuss “mundane employment grievances,” Munroe v.

Central Bucks Sch. Dist., 805 F.3d 454, 467 (3d Cir. 2015). The publicly-minded critic is

thus entitled to be free of retaliation.

“To prevail on a retaliation claim, a plaintiff must prove ‘(1) that he engaged in

constitutionally-protected activity; (2) that the government responded with retaliation;

and (3) that the protected activity caused the retaliation.’” Miller v. Mitchell, 598 F.3d

139, 147 (3d Cir. 2010) (quoting Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d

Cir. 2004)). Only the second element is at issue in this appeal.3

3
The parties do not, at this time, dispute that Schleig was engaged in a
constitutionally-protected activity with his pro-union speech. See Pickering v. Bd. of
Educ., 391 U.S. 563, 574 (1968) (explaining that First Amendment speech protections
only apply to government employees speaking out on matters of public concern); Hotel &
Rest. Emps. & Bartenders Int’l Union Local 54 v. Read, 832 F.2d 263, 265 (3d Cir. 1987)
(noting that “some union activity presumably comes within the right to associate for
expressive purposes”). Nor is there any dispute, at this time, with regard to causation.

7
 The parties disagree as to whether Troxell’s remarks constitute an unlawful threat

of retaliation. Schleig alleges that Troxell threatened to get him fired as a result of

Schleig’s continued union activities. “[T]he threat of dismissal from public employment

is … a potent means of inhibiting speech.” Pickering v. Bd. of Educ., 391 U.S. 563, 574

(1968). Therefore, the threat of dismissal, depending on its clarity and credibility, can

form the basis for a claim of retaliation in violation of the First Amendment. See id.

(noting that the “exercise of [the] right to speak on issues of public importance may not

furnish the basis for … dismissal from public employment”).

But threatening a loss of livelihood is relatively small stuff here. According to

Schleig, Troxell threatened to kill him. [App. at 32.] In the few cases in which

government officials have made death threats in response to constitutionally protected

activity, no one has tried to claim that the offending official’s behavior is something other

than unlawful retaliation. Even the strained defenses in those cases have evidently not

tried to stretch that far. Cf. Santiago v. Blair, 707 F.3d 984, 992 (8th Cir. 2013)

(concluding that “a reasonable jury could find that threats of death, issued by a

correctional officer tasked with guarding a prisoner’s segregated cell, would chill a

prisoner of ordinary firmness from engaging in the prison grievance process”); Van

Deelen v. Johnson, 497 F.3d 1151, 1157 (10th Cir. 2007) (holding that “allegations of

physical and verbal intimidation, including a threat by a deputy sheriff to shoot him if he

brought any more tax appeals, would surely suffice under our precedents to chill a person

of ordinary firmness from continuing to seek redress for (allegedly) unfair property tax

assessments”). We have found no precedent that puts in doubt the unlawful retaliatory

8
character of Troxell’s conduct as alleged in the Amended Complaint, and, indeed, it is

obvious. See Hope v. Pelzer, 536 U.S. 730, 739 (2002) (“For a constitutional right to be

clearly established, its contours ‘must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right. ... [I]n the light of pre-existing

law the unlawfulness [of the government official’s conduct] must be apparent.’” (quoting

Anderson, 483 U.S. at 640)).

To find some cover, Troxell argues that he did not threaten Schleig with retaliation

because his remarks were not actually directed at Schleig. [Opening Br. at 24.] He

claims that, at the time, he “did not know that [Schleig] was the individual about whom

he was speaking” and therefore he “could not have formed the specific intent necessary to

retaliate.” (Opening Br. at 24). But Troxell’s recitation of the facts is inconsistent with

the allegations in Schleig’s Complaint. Schleig alleges that Troxell directly threatened

him with termination, in terms of both employment and existence, because of pro-union

activities. [App. at 32-33.] While Troxell began his conversation with Schleig by

threatening an unnamed informant, he quickly made clear that he and the other

Defendants “were working on going after [Schleig] because they suspected that [Schleig]

was assisting Lahovski with his lawsuit against Defendants for violations of his

constitutional rights.” (App. at 33.) Accepting Schleig’s account of the facts, again as

we must, Troxell clearly directed his threats of retaliation at Schleig in a manner that a

jury could find violated Schleig’s constitutional rights.

B. Schleig’s Actions Violate Clearly Established Law

9
 Troxell next argues that, even if we conclude that he unlawfully threatened

Schleig, we should nevertheless conclude that his actions did not violate clearly

established law. [Opening Br. at 22.] This is a position that barely warrants a response.

Thirty years ago, in a case involving retaliation against a police officer no less, we held

that “retaliatory discharges” were “clearly established” as unlawful. Bennis v. Gable, 823

F.2d 723, 733 (3d Cir. 1987). And, as already discussed, it should go without saying that

no reasonable officer could think that it was lawful to threaten to injure or kill an

employee because of that employee’s participation in a labor union.

Troxell asserts, however, that words that merely threaten without subsequent

concrete action, are not clearly established as a violation of the First Amendment’s

protection against retaliation. [Opening Br. at 25.] In advancing that proposition,

Troxell relies on an erroneous interpretation of our recent decision in Zaloga v. Borough

of Moosic, taking language from the opinion out of context. (See Opening Br. at 25

(quoting Zaloga, 841 F.3d at 176 (“[O]ur cases do not provide government officials with

clear guidance as to when a government official’s own speech can nevertheless constitute

unconstitutional retaliation.”))). In that case, an individual brought suit against a

politician who, in retaliation for political criticism, urged other government officials not

to renew a contract with the individual’s business. Zaloga, 841 F.3d at 172-73.

However, the politician in that case did not have the power to take adverse action himself

and did not do anything more than suggest to other officials that they should not contract

with that individual. Id. at 173. We explained that when a public official retaliates

merely by speaking out critically, “the official’s ‘own First Amendment speech rights are

10
implicated.’” Id. at 176 (quoting McLaughlin v. Watson, 271 F.3d 566, 573 (3d Cir.

2001)). 4 Therefore, “[i]t is not enough that defendant speaks critically of plaintiff or

even that defendant directly urges or influences the third party to take adverse action.

Rather, defendant must ‘threaten’ or ‘coerce’ the third party to act.” Id. (quoting

McLaughlin, 271 F.3d at 573). “[I]n the absence of a threat, coercion, or intimidation,

intimating that punishment, sanction, or adverse regulatory action will follow, such

speech does not adversely affect a citizen’s First Amendment rights even if defamatory.”

McLaughlin, 271 F.3d at 573 (citation omitted).

Zaloga plainly does not stand for the proposition that an official is free to threaten

to terminate or physically harm an employee because the official is speaking his mind. In

contrast to the defendant in Zaloga, Troxell did not simply criticize Schleig or suggest to

others that Schleig should be punished for his activities. Instead, Troxell “intimat[ed]

that punishment, sanction, or adverse … action” would follow as a direct result of

Schleig’s union activities. Id. (citation omitted). In particular, he made it clear that he

and the other Defendants “were working on going after [Schleig] because they suspected

that [Schleig] was assisting Lahovski with his lawsuit against Defendants for violations

of [Lahovski’s] constitutional rights[,]” (App. at 33) and he let Schleig know that “severe

4
McLaughlin v. Watson, another case relied upon by Troxell, is also easily
distinguishable. 271 F.3d 566 (3d Cir. 2001). In McLaughlin, a U.S. Attorney for the
Eastern District of Pennsylvania was sued for advocating that agents of the Pennsylvania
Attorney General’s Office be fired. Id. at 568. Critical to our decision that the U.S.
Attorney was entitled to qualified immunity was the fact that a U.S. Attorney had no
authority to threaten or coerce a state officer and therefore his suggestion of retaliation
was mere speech. Id. at 573-74. Here, in contrast, Troxell threatened to take direct
retaliatory action against Schleig.

11
harm” or death would follow. (App. at 32.) Such direct threats of adverse action are

squarely prohibited by Supreme Court precedent and the precedent of this Court.

Therefore, Troxell is not entitled to qualified immunity at this stage. Whether a jury will

believe Schleig’s allegations and any associated proof is yet to be seen.

III. CONCLUSION

For the foregoing reasons, we will affirm.

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