Free Compendium of Unreported Decisions - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SERGEANT CHRISTOPHER D. FORAKER, : : Plaintiff, : : v. : : COLONEL L. AARON CHAFFINCH, : individually and in his official capacity as : Superintendent of the Delaware State Police; : LIEUTENANT COLONEL THOMAS F. : MACLEISH, individually and in his official : capacity as Deputy Superintendent of the : Delaware State Police; DAVID B. MITCHELL, : in his official capacity as the Secretary of the : Department of Safety and Homeland Security of : the State of Delaware; and DIVISION OF : STATE POLICE, DEPARTMENT OF SAFETY : AND HOMELAND SECURITY, STATE OF : DELAWARE, : : Defendants. :

C.A.No.04-1207-GMS

PLAINTIFF'S COMPENDIUM OF UNREPORTED CASES FROM HIS OPENING BRIEF IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT (D.I. 64)

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Respectfully Submitted, THE NEUBERGER FIRM, P.A. /s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] Dated: January 25, 2006 Attorneys for Plaintiff

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Briefs and O ther Related Do cuments Only the Westlaw citation is currently available. United States District Court,E.D. Pennsylvania. Robert J. MITCH ELL, Plaintiff, v. Mayor John F. STREET and The City of Philadelp hia, Defend ants. No. Civ.A. 04-3213. Aug. 16, 2005.

James E. Beasley, W illiam T . Hill, The Beasley Firm, Philadelphia, PA , for Plaintiff. Shelley R. Sm ith, City of Philad elphia Law D epartment, Philadelp hia, PA, for D efendants. MEMORANDUM KELLY, J. I. INTRODUCTION *1 Presently pending before this Court is the Defenda nts', Mayor John F. Street ("Mayor Street") and the City of Philadelphia, Motion for Summary Judgment. On July 7, 2004, Mitchell filed his Comp laint with this Co urt. Mitchell's Complaint contains three counts. S pecifically, the counts are: Violation of the First & Fourteenth Amendment and 42 U.S.C. § 1983 (Count I); V iolation of Article I, Section I, of the P ennsylvania Constitution (Count II); and Violation of Article I, Section XI, of the Pe nnsylvania Constitution (Count III). Defendants have moved for summary judgment on all three counts. For the following reasons, Defendants' Motion is denied. However, as will be explained in infra Part IV.B, Counts II and III of the Complaint will be dismissed without prejudice.

Plaintiff, Rob ert J. Mitchell ("M itchell") is the former Deputy Police Commissioner for the City of Philadelphia. M itchell held that title from 19 96 until 2004. In early 2004, a rumor began to circulate that Mitchell had obtained an illegal gun permit. In late Feb ruary, 2004, the media picked up the story and reported that M itchell allegedly possessed an illegal gun perm it. Initially, Police Commissioner Sylvester Johnson ("Johnson") announced his support for Mitchell at a press conference on February 26, 2004. That same day, M ayor S treet called a m eeting to discuss the gun perm it issue. Present at this meeting were Mayor Street, Johnson, M itchell, Mayor Street's Chief of Staff Joyce W ilkerson ("W ilkerson"), Comm unications Director Barbara G rant ("Grant") and Police Counsel Karen Simmo ns, Esquire ("Simmons"). At the meeting, Mitchell denied any wrongdoing with respect to the gun permit. The parties dispute the actual outcome of this m eeting as it related to M itchell's continued emp loyment, however, what is certain is that on February 27, 2004, at a press conference, Mayor Street stated that M itchell wo uld be taking a leave of absence from his position as Deputy Police Comm issioner. An investigation then commenced into the gun permit issue. On March 1 1, 20 04, M itchell filed a com plaint in Equity with the Court of Common Pleas of Ph iladelp hia County. The complaint sought to enjoin Mayor Street and the City of Philad elphia from remo ving him from his post as Deputy Police Commissioner pending the results of the investigation regarding the gun perm it. FN1

FN1. That complaint was dismissed as moot by the Court of Common Pleas on June 11, 200 4. (See Defs.' Mo t. Summ. J. Ex. E). On May 26, 2004, Philadelphia District Attorney Lynne Abraham announced the re sults of her investigation into the gun permit issue. The District Attorney concluded that Mitchell had engaged in no wrongdoing whatsoever.

II. BACKGROUND

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On May 27, 2 004, Mitchell appeared on the Michael Smerconish ("Smerconish") ra dio p rogra m. FN2 During this appearance, Smerconish and Mitchell discussed the District Attorney's public announcement regarding the gun perm it issue and her findings that Mitchell engaged in no wrongdoing. On June 1, 2004, Mitchell received a letter from John son terminating his employm ent. Mitchell subsequently filed his C omp laint with this Court approximately one month later.

FN3. "A fact is material if it could affect the outcome of the suit after applying the substantive law. Further, a dispute over a material fact must be `genuine,' i.e., the evidence must be such `that a reasonable jury could return a verdict in favor of the non-moving party.' " Compton v. Nat'l League of Prof'l Baseball Club s, 995 F.Supp. 554, 561 n. 14 (E.D.Pa.1998) (citations omitted), aff'd, 172 F.3d 40 (3d Cir.1998). IV. DISCUSSION Defendants have moved for summary judgment on all three counts. Under Co unt I, Defendants assert that no genuine issue of material fact exists regarding P laintiff's claim for retaliation under both his First Amendment right to free sp eech and his right to petition. Second, under Counts II and III, Defendants assert that there is no cause of action for damages und er the P ennsylvania Constitution. Finally, Mayor Street asserts he is shielded from liability based upon the doctrine of qualified immunity. These arguments will be considered in turn. FN4

FN2. Mitchell previously appeared on the Smerconish show on March 4, 2004 after the announcement by Street that Mitchell was suspended from his position as Deputy Police Comm issioner. III. STANDARD *2 "Summary judgment is appropriate when, after considering the evidence in the light most favo rable to the nonmoving party, no genuine issue of material fact remains in dispute and `the moving party is entitled to judgment as a matter of law.' " Hin es v. Consol. Ra il Corp., 926 F.2d 262, 267 (3d Cir.1991) (citations omitted). The inquiry is "whether the evidence prese nts a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a ma tter of law." Anderso n v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party carries the initial burden of demonstrating the absence of any genuine issues of material fact. FN3 Big Apple BMW, Inc. v. BMW of N. Am. Inc., 974 F.2d 1358, 1362 (3d Cir.1992). Once the moving party has produced evidence in support of summary judgment, the non-movant must go beyond the allegations set forth in its plead ings and counter with evidence that demonstrates there is a genuine issue of fact for trial. Id. at 1362-63. Summ ary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, an d on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

FN4. The Defendants do not contest that the Plaintiff has met the threshold for there to be municipal liability under Mone ll v. Dep't of Social Servs. of N.Y., 436 U.S. 658 , 98 S .Ct. 2018, 56 L.Ed.2d 611 (1978). Thus, I will not engage in a discussion of this issue. A. COUNT I Count I actually contains two separate causes of action. First, Mitchell asserts that the D efendants retaliated against him and terminated his employment based upon the filing of his equity complaint with the Court of Common Pleas of Ph iladelp hia Co unty. M itchell asserts this violated his right to petition the government for a redress of grievances. Additionally, Mitchell asserts that he was fired in retaliation for exercising his free speech rights by appearing on the Smerconish radio program. The parties are in agreement as to the elements that make up both of these claims. B oth claims require the following three -step analysis:

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[f]irst, plaintiff must show that he engaged in a protected activity. Second, plaintiff must show that the protected activity was a substantial factor motivating the dismissal decision. Finally, defendant may defeat plaintiff's claim by demonstrating that the same action would have taken place even in the absence of the protected cond uct. San Filippo v. Bo ngio nva nni, 30 F.3d 424, 430 (3d Cir.1994) (citations omitted). FN5 I will consider these elements as they relate to Plaintiff's right to petition and free speech causes of action.

The United States Court of Appeals for the Third Circuit ("Third Circuit") has noted that in a claim for retaliatory discha rge from governm ent employment, the plaintiff "must establish that the conduct which triggered the discharge was protec ted under the first amendm ent." San Filippo, 30 F.3d at 434. Specifically: [w]here the allege d retaliation is based on expressive conduct constituting speech, a c ourt m ust first determine whethe r or no t the speech can be fairly characterized as addressing a `ma tter of pu blic concern,' for a governmental employee who makes public comments about prob lems not of `public concern' has no first amendment immunity against employer discipline. Id. "A public employee's speech involves a matter of public concern if it can be fairly considered as relating to any matter of political, social or other concern to the com munity." Baldassare v. N.J., 250 F.3d 188, 195 (3d Cir.2001)(internal quotation marks and citation omitted). Thus, a court must focus o n the "co ntent, form, and context of the activity in question." Id. (citing Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Wa tters v. City of Ph ila., 55 F.3d 886, 892 (3d Cir.1995)). Furthermore, "[t]he content of the speech may involve a m atter of p ublic concern if it attempts to bring to light actual or potential wrongdoing or breach of pub lic trust on the part of government officials." Id. (internal quotation marks and citations omitted). D etermining whether the public em ployee's speech involved a matter of public concern is a question of law for the court. Id. (citing Watters, 511 U.S. at 668 ; Green v. Phila. Ho us. Auth., 105 F.3d 882, 885 (3d Cir.1997)). The parties dispute whether Mitchell's appearance on the Smerconish radio pro gram to discuss the gu n permit issue and the District Attorney's findings constituted a matter of public conc ern. D efendants assert that this case is similar to Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708, and that I should therefore find as a matter of law that Mitchell's speech did not involve a matter o f "public concern." However, for the following reaso ns, I find that Connick is distinguishable from the instant case. In Connick, the plaintiff, Shiela Myers ("Myers"), was

FN5. As set out in San Filippo, "a pub lic employer may dismiss an employee for speech addressing a matter of public concern if the sta te's interest, as an employer, in promoting the efficiency of its operations outweighs the em ploy ee 's interest, as a citizen, in commenting upon matters of pub lic conc ern." 30 F.3d at 434 n. 11 (citation omitted). However, "[t]his balancing test com es into play only if the public employer concedes that it dismissed an employee because of the em ployee's protected speech but contends that it was justified in doing so." Id.; see also, Dennison v. Pa . Dep 't of Corr., 268 F.Supp.2d 387, 3 99 (M .D.Pa.2003). The Defendants deny that they fired M itchell because o f his alleged ly protected speech so as to deem the balancing test inapplicable. Furthermore, neither party asserts that the balancing test should be utilized in this case. 1. Protected Activity *3 The first step re quires this Court to consider whether Mitchell engaged in a protected activity under his right to petition and free speech claims. A s to his right to petition, Defendants concede that the filing of Mitchell's equity complaint with the Court of Common Pleas of Philadelp hia Co unty was a pro tected activity. However, Defendants vigorously contest that Mitchell engaged in any protected activity under his free speech claim.

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emp loyed as an Assistant District Attorney in New Orleans for five and one half years. 461 U.S. at 140. Myers was informed that she would be transferred to prosecute cases in a different section of the criminal court. Id. Myers opposed this transfer and she then "prepared a questionnaire soliciting the views of her fellow staff members concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns." Id. at 141. She then distributed the questionnaire to her co-workers the next day. Id. Later that day, Myers was terminated by Harry Connick ("Connick") the District Attorney for Orleans Parish for refusing the transfer. Myers brought suit under 42 U.S.C. § 1983, asserting that she was wrongfully terminated b ecause she had exercised her constitutionally protected right to free speech by distributing the questionnaire. Id. *4 The United States Supreme Court ("Supreme Court") noted that practically all of Mye rs questions did "not fall under the rubric of matters of `pub lic concern.' " Id. at 145. The Supreme Court noted that the questionnaire did not seek to inform the public that the District Attorney's office was discharging its governmental respo nsibilities in the investigation or prosecution of criminal cases in an improper manner nor did the questionnaire seek to bring to light actual or potential wrongdoing on the part of Connick or others. Id. The Supreme Court continued by noting that the questions posed by Myers reflected her dissatisfaction with her transfer and her "attempt to turn that displeasure into a cause celebre." Id. Unlike the majority of the que stions posed in Connick, however, I find that the issues discussed on the Smerconish radio program did involve matters of public concern. Unlike Connick, the gun permit issue involved possible illegal activity and corruption on the part of a high ranking government official, namely Mitchell. As previously noted, the courts have stated that matters of public concern can include attempts to bring to light actual or po tential wro ngdo ing on the part of government officials. See Baldassare, 250 F.3d at 195 (citations omitted). Thus, it follows that the discussion on the Smerconish radio program regarding the District

Atto rney's investigation and findings regarding the possible wrongdoing and/o r illegality of ho w M itchell received the gun permit involved matters of "p ublic concern." The instant case goes beyond the intra-office dissatisfaction in Connick since there is the additional element of potential wrongdoing/illegality that brought the gun permit issue to the forefront of the pubic sphere in the first place. Therefore, as M itchell's appearance on the Smerconish radio program involved a matter of "public concern," Mitchell engaged in a protected activity under the law.

2. Substantial Factor Motiving the Dismissal The next step in the analysis is to determin e whether Mitchell's protected activities were a substantial factor which motivated the decisio n to terminate Mitchell's emp loyment. The Defendants assert that M itchell cannot satisfy this element. The Plaintiff asserts that he can survive summ ary jud gment with resp ect to this element by discrediting the Defendants' reasons for his termination. For the follow ing reasons, I agree w ith Plaintiff's position. To survive summary judgment, "a plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the em ployer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determ inative cause of the em ployer's action." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994) (citations omitted). In this case, Mitchell attemp ts to discredit the Defendants reason for his termination. FN6

FN6. W hile Fuentes was a Title VII case, courts have noted that "[p]retext analysis used in Title VII cases is also useful in deciding First Am end men t retaliation claims. " Cavicch ia v. Phila. H ous. Auth., No. 03-0116, 2003 W L 22595210, at *9 n. 2 (E.D.Pa. Nov.7, 2003), aff'd, 2005 WL 1506038 (3d Cir. June 27, 2005)(non-precedential)(citing Azzaro v. County of Allegheny, 110 F.3d 968, 981 (3d Cir.1997)(en banc); Feldman v. Phila.

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Hous. Auth., 43 F.3d 823, 831 (3d Cir.1994); Zappan v. Pa. Bd. of Prob. & Parole, No. 00-1409, 2002 WL 32174230, at *11 (E.D.Pa. Nov.25, 2002); Rod riguez v. To rres, 60 F.Supp.2d 334 , 340 n. 2 (D.N.J.1999) Fogarty v. Boles, 938 F.Supp. 29 2, 29 9 n. 4 (E.D.Pa.1996), aff'd, 121 F.3d 886 (3d Cir.1997)). *5 The Defendants assert that the decision to fire Mitchell was made at the February 26, 2004 meeting. Thus, it is the Defendants' position that Mitchell could not be retaliated against for his protected activities because the decision to fire him occurred before any of the protected activities occurred. However, I find that there are factual inconsistencies in the record that would allow a reasonable fact finder to find Defend ants' proffered reason unworthy of cred ence. See Fuentes, 32 F.3d at 765 (citations and footnote omitted). For example, the Defendants assert that the decision to fire Mitchell was made at the February 26, 2004 m eeting. This meeting was called to discuss the gun permit issue. No party suggests that budgetary concerns were discussed at this m eeting as it related to M itchell's further employment as Deputy Police Com missioner. Yet, Johnson's press conference on June 1, 2004 detailing Mitchell's termination and the corresponding news coverage explains that Mitchell was fired for bud getary re asons. (See Pl.'s Resp . Defs.' M ot. Summ. J., Ex. O). This and other inconsistencies in the record discredit Defenda nts' proffered theory of M itchell's termination enough so as to create material issues of fact as to this element. FN7

appeared on the Smerconish radio program and was terminated less than one week later. It is wo rth noting, however, that Mitchell's termination was also soon after the District Attorney made her findings with respect to the gun permit issue. 3. Same Action W ould have been T aken Absent the Pro tected Activity Defendants do not address this third element of Plaitniff's right to petition and free sp eech claims. Therefore, I find it unnecessary to address it in the context of deciding Defendants' Summary Judgment Motion. As there are material issues of fact remaining as to all three eleme nts of Plaintiff's right to petition and free speech retaliation claims, I find summary judgment is inappropriate as it relates to Count I of Mitchell's Complaint.

B. CO UN TS II AN D III Counts II and III seek money damages under the Pen nsylvania Constitution, Article I, Section I and Article I, Section XI respectfully. The Defendants assert that summary judgment should be granted in their favor because Plaintiff cannot maintain a cause of action under the Pennsylvania Constitution for money dama ges. For the following reasons, based upon the discretion given to me as stated under 28 U .S.C. § 1367(c)(1), I will decline to exercise supplemental jurisdiction over these two counts and dismiss them without prejudice. Section 1367(c)(1) states that "[t]he district courts may decline to exercise supplemental jurisdiction over a claim ... if the claim raises a novel or complex issue of state law." As one court in this District has recently noted, "[t]he question of whether there exists a `right of action for money dam ages against go vernm ent officials of the Pe nnsylvania Constitution' is unclear." Gremo v. Karlin, 363 F.Supp.2d 771, 794 (E.D.Pa.2005)(quoting Robbins v. Cumb erlan d Coun ty Ch ildren & You th Serv., 802 A.2d 1239, 1251 (Pa.Cmwlth.Ct.2002)); com pare Erd ma n v. M itchell, 207 Pa. 79, 90-91, 56 A. 327, 331 (1903)(hold ing that there is a right of action

FN7. Additionally, with respect to the free speech retaliation claim, the Third Circuit has noted that the temporal p roxim ity between the em ployee's protected activity and the adverse employment action "is an obvious method by which a plaintiff can proffer circumstantial evidence sufficient to raise the inference that [his] protected activity was the likely reason for the adverse action." Kachmar v. Sungard Da ta Sys., In c., 109 F.3d 173, 177 (3d Cir.1997)(internal quotation marks and citations omitted). In this case, M itchell

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for injunctive relief under the first article of the Pennsylvania Constitution); Ha rley v. Schu ylkill County, 476 F.Supp. 191, 195 -96 (E.D.Pa.1979)(extending Erdman to apply to claims for damages); Jon es v. City of Phila., 68 Pa. D. & C.4th 47, 68-75 (writing in suppo rt of its determination that Article I of the P ennsylvania C onstitution is self-executing and permits private parties to seek civil remedies for constitutional violations); with Millar v. Windsor Township, No. 04-2529, 2005 WL 1513120, at *3-4 (M.D.Pa . June 24, 2005)(stating that there is a dearth of case law on the issue and declining to exercise jurisdiction over the state constitutional claims because deference to the state appellate courts is appropriate); Tillman v. Alonso, No. 04-4391, 2005 W L 1311588, at *5-6 (E.D.Pa. May 31, 2005)(explaining the uncertainty of the state o f the law on the issue of bringing a state constitutional claim under Article I and declining to exercise jurisdiction over state constitutional claims because of this uncertainty); M ulgrew v. Fumo, No. 03-5039, 2004 WL 1 699368, at *2-4 (E.D.Pa. July 29, 2004)(explaining that the issue of whether a direct right of action under A rticle I of the Pennsylvania Constitution is unclear and declining to exercise supplemental jurisdiction over these state constitutional claims). *6 In light of the unclear state of the law on Mitchell's state constitutional claims, I find that the most app ropriate course of action in this particular case is to decline supplemental jurisdiction over Counts II and III of the Complaint pursuant to 28 U.S.C. 1368(c)(1). FN8 Therefore, Counts II and III will be dismissed without prejudice.

C. QUALIFIED IMMUNITY Finally, Defendant M ayor S treet asse rts that he is entitled to qua lified imm unity. "Qualified im munity is available to government officials pe rform ing discretionary functions." Lodato v. Ortiz, 314 F.Supp.2d 379, 385-86 (D.N.J.2004)(citing Harlow v. Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "[G]overnment officials performing discretionary functions, generally are shielded from liability for civil dam ages insofar as their conduct does not vio late clearly established statutory or constitutional rights of which a re asonable person would have known." Harlow, 457 U.S. at 818 (citing Procunier v. Navarette, 434 U.S. 555 , 565 , 98 S.C t. 855, 55 L.Ed.2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975)). A court required to rule up on the qualified immunity issue must co nsider ... this thresho ld question: T aken in the light most favora ble to the party asserting the injury, do the facts alleged show the [governm ent official's] conduct violated a constitutional right? T his must be the initial inquiry.... If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties's submissions, the next, sequential step is to ask whether the right was clearly established. Saucier v. Katz, 533 U.S. 194 , 201 , 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)(internal citation omitted). Regarding the first part of the qualified immunity test, as set out in supra Part IV.A ., I have fo und that M itchell has alleged a violation of his constitutional rights to be free from retaliation for filing his equity complaint and fo r spea king out on a matter o f public concern. Therefore, the first part of overcoming Mayor Street's qualified immunity has been satisfied by Mitchell. Next, I note that the Defendants do not attem pt to make any type of argum ent as to the seco nd part of the qualified immunity test. Specifically, the Defendants sole argument with respect to q ualified im munity is

FN8. This decisio n is particularly prudent in light of the fact that it appears that the issue of "whether a cause of action for money damages arises under the state constitution is an issue currently pend ing before the Commonwealth Court of Pennsylvania." Millar, 2005 W L 1513120, at *3 n. 5 (citing City of Phila. v. Jones, No. 795-CD-200 4 (P a. Co mmw. Ct. filed Apr. 19 200 4). "Argument was heard by the [Commonwealth] court en banc on June 8, 2005." Id.

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that, "[b]ecause the plaintiff cannot e stablish that his constitutional rights were violated, D efendant M ayor Street is entitled to qualified immunity, and, therefore, judgment in his favor." (Mem. Law. S upp. Defs.' Mot. Summ. J., at 11). Thus, Mayor Street does not attempt to contest that both of these rights were clearly established at the time he acted. However, it is clear that both of these rights were established at the time Mayor Street acted. See Watters, 55 F.3d at 891 (stating that "it is essential that pub lic emp loyees be ab le to speak out freely on questions of public concern without fear of retaliatory dismissal.... Judicial vigilance is required to ensure that public emplo yers do not use their authority to silence discourse on matters of public concern simply because they disagree w ith the content of the employee's speec h.") (citations omitted); San Filippo, 30 F.3d at 441-443 ("The mere act of filing a non-sham petition is not a constitutionally perm issible ground for discharge of a public emp loyee."); Bennis v. Gable, 823 F.2d 723, 733 (3d Cir.1987)(stating that the law was clearly established that a public employee could not be retaliated against for exercising his rights under the First Amendm ent). Thus, I find Defendant Mayor Street shall not be entitled to qualified immunity.

consideration of the Defendants' Motion for Summary Judgment (Doc. No . 11), and the Response and Replies thereto , it is hereby OR DE RE D that: 1. the Motion is DEN IED; and 2. Counts II and III of the Complaint are DISMISSED WITHOUT PREJUDICE.

E.D.Pa.,2005. Mitchell v. Street Slip C opy, 2 005 W L 19 937 74 (E.D .Pa.) Briefs and O ther Related D ocuments (Back to top) · 2 00 5 W L 2150103 (Trial Motion, Mem orandum and Affidavit) Order (Jul. 12, 2005) · 2:04cv03213 (Docket) (Jul. 07, 2004) · 2:04cv01110 (Docket) (Mar. 15, 2004) · 2004 WL 2695311 (Trial Pleading) Complaint (2004) END OF DOCUMENT

V. CONCLUSION *7 In conclusion, I find that summary judgm ent is improper as to Count I of the Co mpla int. I find that material issues of fact rema in in Mitchell's claims for retaliation under the First Amendment's free speech and right to petition clauses. Additionally, I conclude that because Counts II and III raise novel and complex issues of state law, I will decline supplemental jurisdiction over these state constitutional claims and dismiss them without prejud ice. Fina lly, I have concluded that Defendant Mayor Street is not entitled to qualified immunity. An approp riate Orde r follows.

ORDER AND NOW , this 16 th day of August, 2005, upon © 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.

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punitive dam ages. Briefs and O ther Related Do cuments Only the Westlaw citation is currently available. United States Co urt of Appe als,Third C ircuit. David T. SPRINGER, M.D. v. Renata J. HEN RY, individually and in her official capacity as Director of the Division of Alcoholism, Drug Abuse and Mental Health of the Department of Health and Social Services of the State of Delaware; Gregg C. Sylvester, M.D., in his official capacity as Secretary of the Department of Health and Social Services of the State of Delaware; Delaware Departm ent of H ealth & Social Services Appe llant. No. 04-4124. Argued Oct. 26, 2005. Jan. 18, 2006. Background: Psychiatrist who worked as independent contractor at state mental hospital brought action against state official, alleging that his contract was not renewed in retaliation for his memoranda criticizing state of care at the hospital. The United States District Court for the D istrict of D elaware, Gregory M. Sleet, entered judgment on jury verdict in favor of psychiatrist, and officials appealed.

Affirmed. [1] Federal Civil Procedure 170A 2339

170A Federal Civil Procedure 170AXVI New Trial 170AXVI(B) Grounds 170Ak2338 Verdict or Findings Contrary to Law or Evidence 170Ak2339 k. Weight of Evid ence. Most Cited Cases New trial should be granted only where the great weight of the evidence cuts against the verdict and where a miscarriage of justice would result if the verdict were to stand. [2] Constitutional Law 92 90.1(7.2)

Ho ldings: The Co urt of Appe als, Sloviter, Circuit Judge, held that: 6(1) plaintiff's memoranda addressed matters of pub lic concern and thus contained protected speech under the First Am endment; 8(2) official was not entitled to qualified im munity; 10(3) whether plaintiff's contract would have been renewed but for his memoranda, so as to support award of econ omic damages, was question of fact for jury; and 14(4) evidence was sufficient to support of award of

92 Constitutional Law 92V Personal, Civil and Political Rights 92k90 Freedo m of Speech and of the Press 92k9 0.1 Par ticular Expressions and Limitations 92k90.1(7) Labor M atters 92k90.1(7.2) k. Pub lic Em ploym ent. Most Cited Cases Pub lic employee who files a claim of retaliation for engaging in protected First Amendm ent activity must first demonstrate that he engaged in protected activity, i.e. speech that addresses a matter o f public concern; court then em ploys the bala ncing test to determine whether employee's interest in the speech outweighs the sta te's countervailing interest as an emplo yer in promoting work place efficienc y and a void ing workplace disrup tion. U.S.C.A. Const.Amend. 1. [3] Civil Rights 78 1405

78 Civil Rights 78III Federal Remedies in General

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78k1400 Presumptions, Inferences, and Burdens of Proof 78k1405 k. Em ploym ent Practice s. Most Cited Cases Constitutional Law 92 82(11)

92 Constitutional Law 92V Personal, Civil and Political Rights 92k82 Constitutional Guaranties in General 92k82(6) Particular Rights, Limitations, and Applications 92k82(11) k. Public Employees; Military Personnel. Most Cited Cases Pub lic employee who files a claim of retaliation for engaging in protected First Amendment activity must prove that the protected activity was a substan tial or motivating factor in the allegedly retaliatory action; thereafter, the burden shifts to the emplo yer to dem onstrate that the allegedly retaliatory action would have been taken absent the protected cond uct. U.S.C.A. Const.Am end. 1. Pub lic employee who files a claim of retaliation for engaging in protected First Amendment activity must prove that the protected activity was a substantial or motivating factor in the allegedly retaliatory action; thereafter, the burden shifts to the employer to dem onstrate that the allegedly retaliatory action would have been taken absent the protected cond uct. U.S.C.A. Const.Am end. 1. [4] Constitutional Law 92 45

92V Personal, Civil and Political Rights 92k90 Freedo m of Speech and of the Press 92k90.1 Particular Expressions and Limitations 92k90.1(1) k. In Genera l. Most Cited Cases First Am endm ent's protectio n of an emp loyee's right to speak on matters of public concern extends to indep endent contracto rs. U.S.C.A. Const.Amend. 1. [6] Constitutional Law 92 90.1(1)

92 Constitutional Law 92V Personal, Civil and Political Rights 92k90 Freedo m of Speech and of the Press 92k90.1 Particular Expressions and Limitations 92k90.1(1) k. In Genera l. M ost C ited Cases Health 198H 275

198H Health 198HI Regulation in General 198HI(C) Institutions and Facilities 198Hk268 Staff Privileges and Peer Review 198Hk275 k. Actions and Judicial Review. Most Cited Cases Five memoranda prepared by psychiatrist who worked at state mental facility as independent contractor, raising concerns on the state of healthcare at the facility, addressed matters of public concern and thus contained protected speech und er the First Amendment. U.S.C.A. Const.Am end. 1. Five memoranda prepared by psychiatrist who worked at state mental facility as independent contractor, raising concerns on the state of healthcare at the facility, addressed matters of public concern and thus contained protected speech und er the First Amendment. U.S.C.A. Const.Am end. 1. [7] Constitutional Law 92 90.1(1)

92 Constitutional Law 92II Construction, Operation, and Enforcement of Constitutional Provisions 92k44 Determination of Constitutional Questions 92k45 k. Judicial Authority and D uty in General. Most Cited Cases W hether an employee's speech is protected under the First Amendment is a question of law. U.S.C.A. Const.Am end. 1. [5] Constitutional Law 92 92 Constitutional Law 90.1(1)

92 Constitutional Law 92V Personal, Civil and Political Rights 92k90 Freedo m of Speech and of the Press

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92k90.1 Particular Expressions and Limitations 92k90.1(1) k. In Genera l. Most Cited Cases Health 198H 275

non-renewal letters to other independent contractor physicians, and provided no plausible reason for her targeting of the physiatrist. U.S.C.A. Const.Am end. 1; 42 U.S.C.A. § 1983. [9] Civil Rights 78 1376(3)

198H Health 198HI Regulation in General 198HI(C) Institutions and Facilities 198Hk268 Staff Privileges and Peer Review 198Hk275 k. Actions and Judicial Review. Most Cited Cases Statem ents of psychiatrist employed as independent contractor at state mental hospital, that the hospital hired an unlicensed physician to work there, were not made recklessly, so as to preclude First Amendment free speech protection; physician had been granted temporary credentials to work at the hospital, but was not independently licensed. U.S.C.A. Const.Amend. 1. Statem ents of psychiatrist employed as independent contractor at state mental ho spital, that the hospital hired an unlicensed physician to work there, were not made recklessly, so as to preclude First Amendment free speech protection; physician had been granted temporary credentials to work at the hospital, but was not indep endently licensed . U.S.C.A. Const.Amend. 1. [8] Civil Rights 78 1376(3)

78 Civil Rights 78III Federal Remedies in General 78k1372 Privilege or Immunity; Go od F aith and Prob able Cause 78k1376 Government Agencies and Officers 78k1376(3 ) k. States and Territories and Their Officers and Agencies. Most Cited Cases In determining whether state official is entitled to qualified immunity, court should ask whether the official acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed five years a fter the fact. [10] Civil Rights 78 1431

78 Civil Rights 78III Federal Remedies in General 78k1372 Privilege or Immunity; Good Faith and Prob able Cause 78k1376 Governme nt Agencies and Officers 78k1376(3) k. States and Territories and Their Officers and Agencies. Most Cited Cases State official responsible for operation of state mental hospital was not entitled to qualified imm unity with regard to violation of First Amendment free speech rights occurring when she failed to renew contract of psychiatrist who worked at hospital as independent contractor, allegedly in retaliation for his memoranda raising concerns on state of care at the facility; although official relied on new state bidding requirements when she did not renew the contract, she did not send

78 Civil Rights 78III Federal Remedies in General 78k1425 Questions of Law or Fact 78k1431 k. Other Particular Cases and Contexts. Most Cited Cases W hether contract of psychiatrist at state mental hospital would have been renewed but for his memoranda criticizing state of healthcare at the hospital, so as to support award of economic damages, was question of fact for jury in psychiatrist's § 1983 action arising when his contract was not renew in alleged retaliation for exercising his First Amendment free spee ch rights. U.S.C.A. Const.Amend. 1; 42 U.S.C.A. § 1983. [11] Federal Civil Procedure 170A 2127

170A Federal Civil Procedure 170AXV Trial 170AXV(F) Taking Case or Question from Jury 170A XV (F)1 In General 170Ak2126 Determination 170Ak2127 k. Construction of Evid ence. Most Cited Cases

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Federal Civil Procedure 170A

2609

170A Federal Civil Procedure 170A XV II Judgment 170AXVII(E) Notwithstanding Verdict 170Ak2608 Evidence 170Ak2609 k. Construction of Evidence. Most Cited Cases On a motion for judgment as a matter of law, a district court must disregard all evidence favorable to the moving party that the jury is not required to believe. Fed.Rules Civ.P roc.R ule 50 , 28 U .S.C.A . [12] Damages 115 91.5(1)

non-renewal notice only two days before proposal deadline, was not given extension that would have allowed him sufficient time to fill out requisite 30 page application form, and that state official that operated hospital was unhappy and unset with psychiatrist was sufficient to support of award of pun itive dam ages in official's § 1983 action against the official. 42 U.S.C.A. § 1983.

On Appeal from the United States District Court for the District of Delaware, (D.C. No. 00-cv-0088 5), District Judge: Honorable Gregory M. Sleet. Phebe S. Young (Argu ed), Marc P . Niedzielski, Department of Justice, W ilmington, DE , for Ap pellant. Thomas S. Neuberger (Argued), Stephen J. Neuberger, W ilmington, DE, for Appellee. Andrew L. Schla fly, New Yo rk, N Y, fo r Amicus-Appellee Association of American Physicians and Surgeons, Inc. Before SLOVITER, FISHER, and GREENBERG, Circuit Judges. OPINION OF THE COURT SLOVITER, Circuit Judge. *1 The case before us can be viewed on two levels. On one level, we have an appeal by an employer from an adverse verdict in favor of an employee (here independent contractor) on his claim of unlawful termination in retaliation for speech protected by the First Amendment. On the other level, the amicus curiae, the Association of American Physicians and Surg eons, argues that the issue transcends the relationship between the parties and instead impacts thousands of patients damaged as a result of hosp ital errors, incompetence, wrongdoing, and cover-ups. On either level, our task is to review the law applied by the District Court on a plenary basis and ascertain whether there is sufficient evidence to support the jury ve rdict.

115 Damages 115V Exemplary Damages 115 k91 .5 Grounds for Exemplary Damages 115k91.5(1) k. In General. Most Cited Cases Jury may award punitive damages when it finds reckless, callous, intentional or m alicious conduct. [13] Damages 115 91.5(1)

115 Damages 115V Exemplary Damages 115 k91 .5 Grounds for Exemplary Damages 115k91.5(1) k. In Genera l. Most Cited Cases To support award of punitive dam ages, defenda nt's conduct must be, at a minimum, reckless or ca llous; punitive damages might also be allowed if the conduct is intentional or motivated by evil motive, but the de fend ant's action need not necessarily meet this higher standard. [14] Civil Rights 78 1465(1)

78 Civil Rights 78III Federal Remedies in General 78k1458 Monetary Relief in General 78k1465 Exemplary or Punitive Damages 78k1 465(1) k. In Genera l. Most Cited Cases Evidence that psychiatrist at state mental hospital was the only independent contractor physician who se contract was non-renewed after he wrote memoranda criticizing state of healthcare there, received

I. The Appellant (defendant in the District Court), Renata

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Henry, has been the Director of the Division of Alcoholism, Drug A buse, and M ental H ealth ("Division"), the division of the State of Delaware's Department of Health and Social Services ("DHSS") respo nsible for the D elaware Psychiatric Center ("DPC" or "Center") since July 1, 1999. Dr. G regg Sylvester was the Secretary of DH SS from Octob er, 1997 through January, 2001, the time period at issue here. Plaintiff/Appellee, Dr. Da vid T . Sprin ger, a psychiatrist, was an independent contractor at the DPC from July 1, 1991 until June 30, 2000 pursuant to nine successive one-year contracts. Although each contract specified that Dr. Springer could be terminated without cause upon fifteen days' notice, and none of the contracts guaranteed renewal, at the end of each contract year Dr. Springer received and signed a proposed co ntract for the following year. Each of Dr. Springer's yearly contracts since July 1, 1996 specified his duties as "[t]o provide p sychiatric services to patients at D elaware Psychiatric Center." App. at 1431. The parties agree that in practice Dr. Springer also served as the director of the DPC psychiatric residency training p rogra m from 199 3 until 2000, the elected president and the chairperson of its Medical Staff Executive Committee from 1999 to 2000, and a mem ber o f its credentials com mittee fro m 19 93 to 2000. In a series of five memoranda dated from October 21, 1999, to January 2 6, 20 00, D r. Springer vo iced his critical opinions on matters relating to the policies, procedures and administration of the DPC. These were introduced into evidence at trial as Plaintiff's Exhibits PX -1 through 5. O ther physicians, medical residents, and staff members signed onto these m emo randa. W e summarize them below but because they are central to the issues before us they are included verbatim in the Append ix to this opinion. PX 1, a memorandum dated October 21, 1999 entitled "Concerns about Delaware Psychiatric Center," contains a long list of inadequacies on patient care and safety issues. App. at 13 84. It describes the DPC as failing in the task of treating psychiatric patients with

high quality care in a respectful and safe environm ent. The memorandum charges that there was "gro ss understaffing of the hospital;" that experienced psychiatrists had left because "they declined to comp romise the patient care and safety;" that security was poor; that members of the staff had subjected patients to demeaning comments; that patients had complained of being physically abused; that "the patient units lack[ed] discipline due to lack of training provided to the aides and technicians;" and that "[s]taff [was] afraid to speak out on issues affecting patient care and safety." App . at 1384-86. In the final paragraph, the memorand um states that as "hospital administration has shown lack of concern over this it is time that these issues we re put in front of legislature and electorate of Delaware whose family members come here for treatment and whose tax money is put into work." App. at 1387. Although the memorand um was signed by 11 psychiatric residents, Dr Springer conceded that he helped to edit the language of PX 1. The mem orandum shows copies going to Governor Carp er, the Secretary of Health & Social Services Sylvester, the Hospital Director Simono, the Med ical Director Dr. Smayer, the Training Director Dr. Springer, Senators of Delaware, the DH CC, the Department of Public Safety, and the News Journal, and there was testimo ny that it was handed to Governor C arper during one of his visits to the hospital. *2 PX 2, a memorandum dated November 23, 1999 (just one month after the earlier memorandum), from Dr. Springer, in his capacity as president of the DPC Medical Staff Executive Committee and co-signed by five other p hysicians, is captioned "Critical Issues in the Care of the Mentally Ill in Delaware" and is addressed to the DPC Go verning Body.A pp. at 1388. It summarizes the earlier "plea for help" for the beleaguered program previously outlined by the DPC medical residents, and, in Dr. Springer's own words, "was basically a plea to the Governor, the hospital director, Ms. Henry, and other peop le." App. at 780. It states, inter alia, that "the cap acity of D PC to pro vide [Delaware citizens with severe and/or long term mental illness] with treatm ent is deteriorating and facing collapse as of July 2000." App. at 1388. The third memorandum, PX 3, is dated December 2,

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1999, less than two weeks later, and was written by Dr. Springer on behalf of the DPC M edical Staff Executive Committee. Dr. Springer testified that it was handed to a Medicare reviewer who was on campus "in hopes that the Medica re folks w ould help us in terms of some of the concerns that we had with patients." App. at 784-85. It was signed by four physicians in addition to Dr. Springer, and, in its own words, sought to bring attention to the unresolved issues at DPC, and "proposed actions that may begin us on the road to protecting and preserving patient care and safety." App. at 1390. The solutions proposed we re to "Add ress Safety Issues as Soo n as Possible;" "F ix Understaffing/Personnel Issues as Soon as Po ssible;" and "Increase P hysicians' Authority to Ensure Q uality and Safe Patient Care." Id. PX 4, dated December 16, 1999, two weeks later, was written by Dr. Springer, in his capacity as President of the DP C M edica l Staff, and Psychiatric Residency Training Director, and is addressed to the DPC Governing Body M embers and consists of a proposed agenda for the December 22, 1999 Governing Body Meeting. That agenda lists some of the areas that the medical staff believed needed to be add ressed under the headings "Need for a Psychiatric Residency Program at DP C," "Need to Attract and Retain Dedicated and Qualified Teaching Attendings" and "Contingency Plans." App. at 1392-93. Und er the latter heading, the proposal urges that "if a decision is made to close the residency program, the current residents should be given the option of comple ting their entire training at DPC." App. at 1393. The fifth memorandum, PX 5, was Dr. Springer's report to the DPC Governing Body, entitled "Medical Staff President Report to the Governing Body Meeting of January 26, 2000." App. at 1394. T he evid ence reflects that it was not presented until the March 21, 2000 DPC meeting. The Report summarized the issues of concern affecting patient care at D PC that the M edica l Staff Executive Comm ittee Officers proposed for discussion by the Governing Body. The Re port stated that "[t]he most glaring issue at hand is that the DP C medica l staff is now in open disagreement with the hospital administration about how the patients should be treated." App. at 1400. It notes, inter alia, that "the

situation has deteriorated to the point that physicians are essentially being asked to practice med icine at below their own minimum ethical standards on a routine basis" and lists "New C oncerns A round Patient Care, Credentialling [sic] and Liability Issues for DPC." Id. It also discusses "New Pa tient Care Issue," "Ethical Issues," and "Continued Concerns Around Patient Care and Safety." A pp. at 140 0-04 . PX 5 additiona lly contains the two statements that Henry argues are "falsities" that allegedly deprive the communications of their First Amendment protection-one that she describes as alleging Medicare fraud and the other referring to an applicant as "unlicensed." Those stateme nts will be discussed at length hereafter. *3 On M ay 12, 2000, less than two months after Dr. Sp ringer's presentation of the fifth memorandum, Henry notified Dr. Springer by letter that his contract at DPC would not be renewed upon its expiration on June 30, 2000, and that the Division would be publishing Req uests for Proposals (RFP), to which Dr. Springer was "free to respond." App. at 1405. Delaware state law had changed in 1996 to require that contracts for professional services exceeding $50,000 per year, such as those under which Dr. Springer worked, be aw arded through a p rocess of public bidding. 29 D el.Co de A nn. tit. 29, §§ 6913, 6981 (2005). Dr. Sylvester instructed his Division D irectors, including Henry, in accordance with these changes. Since May, 1999, the Division has published Req uests for Proposals for the provision of psychiatric services to variou s Divisio n pro grams, including the DPC . Dr. Springer did not respond to any of those Requests for Prop osals. It is Dr. Springer's position that he was the only physician whose contract was not renewed before or during the year 2000, ostensibly because of the new state requirement. Although Henry relies on this 1996 state law revision as one of the bases for non-renewal of Dr. Springer's contract, she produced no evidence that she had sent any such notice to anyo ne else. FN1 On October 6, 200 0, Dr. Springer initiated the instant action under 42 U.S.C. § 1983, seeking monetary damages and injunctive relief FN2 for the non-renewal

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of his contract, claiming that said non-renewal constituted retaliation for his engagement in speech protected under the First Ame ndm ent. On November 9, 2001, Henry mo ved for sum mary judgm ent. She argued that Springer's speech was not protected because it addressed his personal concerns, it was disruptive, he would have been terminated because he failed to bid for renewal, he suffered no damages, and that Henry was entitled to qualified immunity. Dr. Springer moved for partial summary judgment on the ground that his speech was protected by the First Am endment, and argued that Henry was not entitled to qualified immunity because his First Amendment right was clearly established. In a Memorandum and Order entered March 12, 2002 (the "March O rder"), the District Court denied Henry's motion for summary judgment and granted Dr. Sp ringer's motion. The Court held that (1) Dr. Sp ringer's "speech was protected under the First Amendment" because "[t]he content of Sp ringer's speech clearly ad dressed a m atter of pub lic concern" and (2) H enry "is no t entitled to qualified immunity" because "Springer's right to engage in speech was clearly established at the time he was term inated," and there were no facts to sho w that Sp ringer's co mments had any disruptive effect. App. at 49. The court stated, in conclusion, "a jury must decide whether his protected speech motivated his termination, whether he wo uld have been terminated in the absence of the speech, and whether he suffered damages." A pp. at 16 . The ca se proceed ed to trial. *4 On Ap ril 1, 2004, the jury returned a verdict for Dr. Springer. In response to special interrogato ries, it found the following: (1) Dr. S pringer had "proven by a preponderance of the evidence that his protected activity under the First Amendm ent reflected in Plaintiff's Exhibits 1, 2, 3, 4 and 5 was a substantial or motivating factor in the decision to not renew or offer him a new contract," App. at 18-19; (2) PX 2, 3, 4, and 5 were the instances of protected activity for the decision not to renew Henry's contract; (3) Henry had failed to prove "by a preponderance of the evidence that regardless of plaintiff's exercise of his First Amendm ent rights, [that she] would ... not have renewed his contract in July 2000," App. at 19; (4) Dr. Springer suffered actual injury from the non-renewal of his contract; (5)

the damages that Dr. Springer had suffered which were proximately caused by the nonrenewal of his contract were $285,464 to the present and $588,43 1 into the future, App. 20; and (6) $100,000 in non-economic dama ges. In an additional interrogatory, the jury found that (7) Henry "acted recklessly, intentionally or malicio usly with regard to plaintiff," App. at 22, and awarded Dr. Springer $2 5,00 0 in pu nitive da mages in connection with the latter finding. On September 17, 2004, the District Court entered a memorand um opinion and order on the parties' motion for post-trial relief ("September O pinion") in which it uphe ld the jury verdict in all respects but struck the $100,000 award of non-economic rep utation damages. Henry filed this timely app eal.

II. A.

[1] The standards by which we review the trial court's rulings are well-settled. We exercise "plenary review over the District Court's denial of judgment as a matter of law," ap plying "the same standard as the District Court." Joh nson v. Cam pbe ll, 332 F.3d 199, 204 (3d Cir.2003). We also exercise plenary review of a district co urt's grant of summary jud gment. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.2005). We review the denial of a new trial for abu se of discretion. Foster v. Nat'l Fuel Ga s Co., 316 F.3d 424, 429-30 (3d Cir.2003). A new trial should be granted only where the "great weight" of the evidence cuts against the verdict and "where a miscarriage of justice would result if the verdict were to stand." Sheridan v. E.I. Dupont de Nem ours & Co., 100 F.3d 1061, 1076 (3d Cir.1996) (en banc).

B. [2] [3] W e have recently reviewe d the analysis app licable when a public employee files a claim of retaliation for engaging in protected First Amendm ent activity. McGreevy, 413 F.3d at 364. The p laintiff must

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first demonstrate that s/he engag ed in protected activity, i.e. speech that addresses a matter of public concern. W e then employ the balancing test derived from Pickering v. Board of Educ. of Township High School Dist. 205, 391 U.S. 563 , 88 S .Ct. 1731, 20 L.Ed.2d 811 (1968), "to determine whether an emp loyee's intere st in the speech o utweighs the state's countervailing interest as an employer in promoting workplace efficiency and avoiding workplace disruption." McGreevy, 413 F.3d at 364 (quoting Pickering, 391 U .S. at 568). Next, the plaintiff must prove that the protected ac tivity was a substantial or motivating factor in the allege dly retaliatory action. Thereafter, the burden shifts to the employer to demo nstrate that the allegedly retaliatory action would have been taken absent the protected conduct. Id. *5 [4] [5] [6] W hether an em ployee's speec h is protected under the First Amendm ent is a question of law. Azzaro v. County of Allegheny, 110 F.3d 968, 975 (3d Cir.1997) (en banc); Baldassare v. New Jersey, 250 F.3d 195 (3d C ir.200 1). T he First Ame ndme nt's protection of an em ployee's right to speak on matters of pub lic concern extends to independent contra ctors. Bd. of Comm 'rs, Wabaunsee v. Um behr, 518 U.S. 668, 686, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). FN3 See also O'H are Truc k Service, In c. v. City of Northlake, 518 U.S. 712, 721, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996). Henry has not seriously disputed that the contents of Dr. Sp ringer's spe ech (i.e., a physician's critique of patient safety and unsafe working conditions) constitute matters of public concern. In several cases cited by the District Court the co urts held that statements by health care providers regarding patient care involv ed matters of public concern. Scheiner v. New York City Hea lth and H ospitals, 152 F.Supp.2d 487, 495-96 (S.D.N.Y.2001); Kattar v. Three Rivers Area H osp. Auth., 52 F.Supp.2d 789, 799 (W.D.Mich.1999). We ado pt the D istrict Court's determination that Dr. Springer's speech raising concerns on the state of healthcare at the D PC facility addressed matters of public concern. The distribution of the five com munications to perso ns within the hospital and those respo nsible fo r governing the hospital as well as to public officials and the general public through the media was not inappropriate.

Henry's appellate brief lists sixteen issues but essentially they condense to H enry's claim that the District Court erred in holding that Dr. Sp ringer's speech was protected under the First Amendm ent without analyzing whether the five memoranda contained false statements that are allegedly unprotected FN4 and in holding that Henry was not entitled to qualified immunity. We consider each issue in turn.

1. The alleged false statem ents Henry's claim asserting tha t material containing falsities is unprotected under the First Amendment must be considered in the context of now well-established principles. In Pickering, where the principles relating to a governme nt em ployee's free speec h right were first enumerated, a teacher was dismissed by the Board of Education for writing and publishing in a newspaper a letter criticizing, inter alia, the Board's allocation of school funds between educational and athletic programs. The Supreme Court unequivocally rejected the view of the Illinois Supreme Court "that teachers may constitutionally be com pelled to relinq uish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of pub lic interest in connection with the operation of the public schools in which they work...." Pickering, 391 U.S. at 568. The Court repeated its earlier statement made the preceding year that "[t]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of ho w unreasonable, has been uniform ly rejected." Id. at 568 (quoting Keyishian v. Bd. of Rege nts, 385 U.S. 589, 605-06, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967)). *6 It was in its discussion of the required balancing "between the interests o f the teach er, as a citizen, in commenting upon matters of public co ncern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees," id. at 568, that the Pickering Court made any reference to false statements. The Court reviewed Pickering's speech and determined that some of the statements were erroneous. It did not hold that the speech was therefore unp rotected, as H enry wo uld have

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us do. The Court stated: W hat we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher's proper perform ance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public. 391 U.S. at 572-73 (footnote omitted). It continued:The pub lic interest in having free and unhindered debate on matters of public importance-the core value of the Free Speech Clause of the First Amendment-is so great that it has been held that a State cannot authorize the recovery of damages by a public official for defamatory statements directed at him except when such statem ents are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity. 391 U.S. at 573 (emphasis added) (citations omitted). Unlike the Pickering Court's acceptance that Pickering's communication included false assertions, we are not prepared to accept without question Henry's assertion that PX 5 contained false statements. They may be more accurately viewed as exagg erations in the context in which they were made. [7] One of the two stateme nts Henry alleges was false, that the hospital hired a physician who was not licensed, was discussed by the District Court in its September Opinion. PX 5 states that "[t]wo Acting Medical Directors were appointed by the administration in one week, including an unlicensed psychiatrist." App. at 1401. Henry objects to the statement that the Administration appointed an "unlicensed psychiatrist." Henry argues that the psychiatrist referred to was actually licensed to practice at DPC. Dr. Springer testified that the basis for his statement was that the psychiatrist in question was "not an indep endently

licensed psychiatrist" or physician b ut rather had o nly a DPC institutional license, granted by H enry herself. The District Court's September Opinion states that Henry requested temporary credentialing for a particular physician applicant. Dr. Springer objected, three members of the Credentialing Committee voted to grant the physician partial privilege and two, including Dr. Springer, voted not to do so. Henry refused to sign the physician applicant's credentialing unless he was given full unrestricted privileges. At the conclusion of the discussion of that incident in one half of a page on PX 5, the R epo rt states that "[t]he M edica l Staff requests that the Governing Body pass a motion supporting adherence to the Medical Staff Bylaws, especially in regard to matters of credentialling [sic] physicians to the D PC Medica l Staff." App. at 1401. Dr. Springer's asserted bases for his statements do not support a contention that they were recklessly made. *7 The o