NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 20-3644

___________ KELLY CONARD, Appellant

v. PENNSYLVANIA STATE POLICE ; PSP HUMAN RESOURCES; SGT. JOSEPH TRIPP; DENNIS HILE

___________________ _________________ On Appeal from the United States District Court for the Middle Distri ct of Pennsylvania (D.C. No. 1-15-cv-00351) District Judge: Honorable Sylvia H. Rambo

___________________ _________________ Submitted Pursuant to Thir d Circuit L.A.R. 34.1(a) on October 4, 2021 Before: GREENAWAY, JR., KRAUSE , and BIBAS, Circuit Judges (Opinion file: January 6, 2022)

___________________ _________________2 ___________

OPINION *

___________ PER CURIAM Pro se appellant Kelly Conard appeals from the District Co urt’s order granting the defendant’s motion for summary ju dgment. For the following reasons, we will affirm the District Court’s judgment.
I. As we write primarily for the parties, who ar e familiar with the fact s, we will discuss the details only as they are relevant to our analysis. Conard worked for the Pennsylvania State Police from 1985 until 2002, when she re tired to join her th en-husband who was assigned military service in Texas. In 2004, sh e applied to rejoin the State Police, but was not hired in part because her former supervis ors Dennis Hile and Jo seph Tripp provided negative feedback regarding Cona rd’s dependability a nd previous use of sick leave. In November 2005 Conard filed a charge of gender discrimination with the EEOC and the Pennsylvania Human Relations Commission. In July 2006, she filed a federal lawsuit against Hile, Tripp, and the State Police. Th e District Court ultimately granted the defendants’ motion for summary judgment in that su it, and we affirmed in an unpublished opinion. Conard v. Pa. State Police, 360 Fed. Appx. 337, 338 (3d Cir. 2010) (per curiam).

* This disposition is not an opi nion of the full Court and purs uant to I.O.P. 5.7 does not constitute binding precedent.3 In 2015, Conard filed this sec ond action, alleging in part that the same defendants retaliated against her in violatio n of her First Amendment rights for having brought the first suit. The District Court granted the defendan ts’ motion to dismiss for failure to state a claim on which relief could be granted. On appeal, we cl arified the applicable First Amendment legal standard and reversed as to Conard’s First Amendment retaliation claim. Conard v. Pa. State Police, 902 F.3d 178, 182-85 (3d Cir. 2018). After discovery, the defendants moved for summary ju dgment. Conard conceded su mmary judgment as to Hile and the State Police but argued that the summar y judgment record supported a claim that Tripp retaliated against Conard by prov iding negative employment references. 1 A Magistrate Judge recommended that the defendants’ motion for summary judgment be denied as to Tripp. But the District C ourt disagreed and granted the defendants’ motion in its entirety. Conard appeals.
II. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a grant of summary judgment, applying the same standa rd that the District Court applies. Barna v. Bd. of Sch. Dirs. of Pant her Valley Sch. Dist., 877 F.3d 136, 141 (3d Cir. 2017). Summary judgment is appropriate “if the movant sh ows that there is no genuine dispute as to any material fact and th e movant is entitled to j udgment as a matter of law.” Fed. R. Civ. P. 56(a). “A factual dispute is ‘genuine’ if the ‘evidence is such that a reasonable jury

1 While Conard is proceeding pro se on appeal , she was represented by one attorney for the beginning of the discovery proc ess and, after she asked the fi rst attorney to withdraw, a second attorney for the conclusion of di scovery and summary judgment briefing.4 could return a verdict for the nonmoving party.’ ” Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020) (quotin g Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual dispute is “material” if it “might affect the outc ome of the suit under the governing law.” Id. (internal quotation ma rks omitted). We “must view the facts and evidence presented ... in the light most favorable to the nonmoving party.” Id.
III. First, we briefly address the scope of the evidentiary record. The defendants accompanied their motion for summary judgment and supporting brief with a statement of undisputed material facts citing deposition testim ony and declarations. Conard, through her then-counsel, responded in a brief citing several attached exhibits. 2 On appeal, Conard, now proceeding pro se, submitted more than 200 pages of additional exhibits not cited by either party in the summary judgment briefing before the District Court. While Conard submitted some of these exhibits to the District Court in 2 015 when respon ding to the defendants’ motion to dismiss, many others were never submitte d to the District Court and some even post-date the District Court’s ju dgment. We cannot consider documents that were not part of the record befo re the District Court. See In re Capital Cities/ABC, Inc.’s Application for Access to Sealed Transcripts, 913 F.2d 89, 96 (3d Cir. 1990) (“This Court

2 The District Court noted that Conard’s subm ission failed to comply with Middle District of Pennsylvania Local Rule 56.1 by failing to provide a separate counter-statement of material facts. The District C ourt still conducted a full analysis to determine whether granting summary judgment was appropriate. See We itzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613 (3d Cir. 2018).5 has said on numerous occasions th at it cannot consider material on appeal that is outside of the district court record.”). To prevail on her First Amendment retaliation claim, Conard had to show that: “(1) she engaged in constitutionally protect ed conduct, (2) there was reta liatory action sufficient to deter a person of ordinary fi rmness from exercising her constitutional rights, and (3) there was a causal link between the cons titutionally protected conduct and the retaliatory action.” Conard, 902 F.3d at 183 (alte rations omitted) (quoting Mirabe lla v. Villard, 853 F.3d 641, 649 (3d Cir. 2017)). Ther e is no dispute that Conard’s in itiation of the first lawsuit was constitutionally protected conduct. Tripp argues that no genu ine dispute as to material facts exists concerning the la tter two elements, and that he is entitled to judgment as a matter of law on both points. We fo cus on the third element, causation. To establish causation, Conard needed to show that her “‘constitutionally protected conduct was a substantial or motivating facto r’ for the retaliatory co nduct.” Conard, 902 F.3d at 184 (quoting Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016)). This can be done through “evidence of: (1) an unusually suggestive temporal proximity between the protected activity and the allege dly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.” Watson, 83 4 F.3d at 424. If Conard succeeded, Tripp would then have the opportunity to resp ond by showing that the allegedly retaliatory action would have been taken an yway, independently of any re taliatory animus. Mirabella, 853 F.3d at 651-52; see Hartma n v. Moore, 547 U. S. 250, 260 (2006) (“[A]ction colored by some degree of bad motive does not amount to a constitutional tort if that action would have been taken anyway.”).6 Conard alleged that Tripp provided negativ e references to prospective employers as a result of her first lawsuit. She emphasized the alleged contrast between the generally positive performance reviews prepared by Tripp and Hile during he r final years with the State Police and Tripp’s later criticisms. But Tri pp does not contend, and the record does not support, that this contrast emerged only as retaliation for Conard’s first lawsuit. Indeed, Conard’s first lawsuit was based in part on th is same alleged contrast. She alleged that Tripp helped block her rehiring by inaccurately and unfairly criticizing her prior service. To show retaliation, Conard thus must show that her constitutionally protected activity motivated some escalation in Tr ipp’s conduct beyond this pree xisting animosity. See Feldman v. L. Enf’t Assocs. Corp ., 752 F.3d 339, 349 (4th Cir. 2014) (affirming order granting summary judgment where plai ntiff “offered no evidence th at his [protected] conduct changed the bitter status quo in any way”). Conard identifies this escalation as Tri pp’s provision of negative employment references. Under State Police policy, any referenc e requests were supposed to be processed through an automated verificati on system, not answered by former supervisors like Tripp. Importantly, Conard’s theory of causation re quires that Tripp provided negative feedback for references purposes after her protected conduct. If a prospective employer received negative feedback from the State Police Huma n Resources Department based on Tripp’s previous comments during the review of her 2004 application, that wo uld not be evidence of retaliation by Tripp. 3

3 Newly solicited feedback fro m Tripp could constitute retalia tion, even if relayed to a potential employer indirectly. But the record contains no evidence that any reference7 In opposing summary judgment , Conard relied in part on the alleged statements by Tripp to Joseph DePietro to support her theory of causation. Pl.’s Br. in Opp’n 12, ECF No. 86. DePietro is a former Pennsylvania state trooper who now works as a private investigator. Conard hired him to serve the de fendants with this lawsuit and to investigate negative references being given to potential em ployers. DePietro arranged to meet Tripp and Hile in the parking lot of a grocery store to serve the lawsuit. According to DePietro, Tripp was hostile, commented that “this is round two,” and asked if DePietro had ever met Conard. 4 Conard later asked DePietro to consider her for a position with his business. He declined, citing Tripp’s comments. Althou gh Tripp’s comments may have affected Conard’s chances of employm ent with DePietro, Tripp ha d no reason to believe that DePietro was a potential employer or that his comments to DePietro wo uld have any effect on Conard. For these reasons, we agree with th e District Court that these comments cannot be reasonably understood as a negative employment reference, or indeed any form of retaliatory action. Conard also relied on statements that sh e claimed Tripp made to a Ms. O’Connor. DePietro reported that he inte rviewed O’Connor in late 2 015. O’Connor ran a traveling

provided by the State Police Department of Human Resources involved new feedback from Tripp. Notably, Tripp’s negative views migh t also be accessible to potential employers through the publicly available records of Conard’s first laws uit. See Pl.’s Unsworn Declaration 13, ECF No. 19 (alleging that a poten tial employer found one of the judicial opinions on the internet).

4 In a report Conard submitted to the District Court in response to the defendants’ motion to dismiss, DePietro represented that he e ngaged in conversation with Tripp and asked him “what this was all about,” leading to the cite d comments. Pl.’s Ex. Part I 17, ECF No. 20.8 retail business, and Conard applied for empl oyment. According to DePietro, O’Connor checked Conard’s references and received a negative reference from Tripp. DePietro claims that he had O’Connor si gn a notarized statement which he provided to Conard. But DePietro reports that Conard ha s since misplaced that document. 5 We agree with the District Court that DePietro’s account of O’Connor’s statements is hearsay evidence that could not be considered. “The rule in this circuit is that hearsay statements can be considered on a motion for summary judgme nt if they are capable of being admissible at trial.” Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016) (alterations omitted) (q uoting Stelwagon Mfg. Co. v. Tarmac Roofing Sys., 63 F.3d 1267 , 1275 n.17 (3d Cir. 1995)). The pr oponent of such evidence must explain the admissible form that is anticipated. Id. Conard has provided no evidence that O’Connor would not be availabl e for trial and has identified no hearsay exception that would permit DePietro to testify as to O’Connor’s alleged statement. Absent the statements to De Pietro and O’Connor, the record contains no evidence of direct statements specifically by Tripp to potential employers after the first lawsuit. Conard’s contention that Trip p provided negative references in that time period is thus circumstantial and relies on speculative infere nces from evidence referring generally to negative references or references provided by the St ate Police. Even a ssuming that a jury could reasonably find that Tripp did in fact provide such refere nces, other evidence,

5 Neither Conard nor DePietro have explained why they have not attempted to replace the lost statement or provided an y further information concerni ng Ms. O’Connor, such as her full name, any contact information, or the name of her business.9 including reports by professional reference check company Allison & Taylor, produces a causation problem. Conard retain ed Allison & Taylor four tim es, in 2005, 2 011, 2013, and 2014, to check her references with the State Po lice. According to the firm’s reports, Tripp provided a negative reference to them regarding Conard in Apr il 2005. In the later years, he declined to provide a reference, citing eith er State Police policy or his personal preference. 6 To the extent that the negative referen ce predates Conard’s protected activity, it fatally undermines her theory of causation. The defendants hi ghlighted this point before the District Court. Defs.’ Br. in Supp. of Summ. J. 12, ECF No. 80; Defs.’ Br . in Supp. of Defs.’ Partial Objs. 6, 9, ECF No. 90. Conard, through her then-counsel, did not respond to this argument, and the District Court re lied on it. Mem. 12, 14-15, ECF No. 91. On appeal, Conard argues for the first time that Tripp could have retaliated in April 2005 because he would have b een aware that she th reatened to file a lawsuit in her communications with the State Police. 7 She relies on an alleged statement she made by phone to Jason Wiley with the State Police Human Re sources Department and a letter she sent in February 2005 to the State Police Departme nt of Human Resources requesting that the denial of her application be r econsidered. The letter contains an indication of a courtesy

6 Unbeknownst to Tripp, he was not communi cating with a genuine prospective employer.

7 Conard has not previously identified any threat to file a lawsuit as protected conduct, but that position is at minimum reasonable. S ee Anderson v. Davila, 125 F.3d 148, 162–63 (3d Cir. 1997) (explaining that allowing hara ssment of one who announced an intention to file a lawsuit would render the right to petiti on useless); Watson, 834 F.3d at 422-23 (declining to draw any distinction for retaliation purposes between declaring an intent to file a grievance and actually filing).10 copy to an attorney. See App. III 69, 3d Cir. ECF No. 13 . But the letter was not submitted to the District Court at any stage of this litigation, and we cannot consider it. 8 See In re Capital Cities, 913 F.2d at 96. Conard’s alle ged statement to Wiley is reflected in her deposition testimony, which the defendants su bmitted with their statement of undisputed material facts. See ECF No. 81-1 at 36-37, 51- 52. Conard did not c ite this testimony or any portion of her deposition testimony in her opposition to the defendants’ motion for summary judgment. See Fed. R. Civ. P. 56(c)(1)(A). “It is well-established that arguments raised for the first time on appeal are not properly preserved for appellate review.” Simko v. U.S. Steel Corp., 992 F.3d 198, 205 (3d Cir. 2021). Conard did not argue to the District Court that Tripp was aware of any protected conduct in April 2005, so she has forfeited that argument. See id. We may consider forfeited arguments only under truly exceptional ci rcumstances, and Conard has not identified such circumstances here. 9 Id. at 205-06. On the record and arguments before the District Court, a jury could not reasonabl y rule for Conard on causation. 10

8 Conard mentioned the letter in her depositio n testimony but did not mention copying an attorney. See ECF No. 81-1 at 36-37.

9 This is especially true given her failure to comply with Local Rule 56.1 before the District Court.

10 Even if we considered Cona rd’s new argument, her theory of causation would require a jury to determine that Tripp actually became aware of the th reatened lawsuit, would not have responded to Allison & Ta ylor in 2005 absent that thre at, and continue d to provide negative references to prospective employers years later, notwithstandi ng the contrary evidence of the later Allison & Tayl or reports. But we need not decide whether a jury could reasonably reach those conclusions from the summary judgment record.11 IV. Accordingly, we will affirm the judgment of the District Court. 11

11 Conard filed a perfunctory mo tion to, inter alia, file an overlength brief without limitation. On February 26, 2021, The Clerk denied the motion as presente d, but granted Conard permission to file a brief not exceeding 15,600 words. She th en filed another, more-developed motion, which has been referred to us, e ssentially seeking rec onsideration of that decision because her draft had surpassed 25,000 words. She ultimately filed a brief of 17,744 words. We grant Cona rd’s motion to reconsider th e word limit imposed by the Clerk’s Order of February 26, 2021, in that we accept and have cons idered her overlength brief as filed.