2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-9-2000

Merkle v. Upper Dublin Schl. Dist.

Precedential or Non-Precedential:

Docket 99-1613

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Merkle v. Upper Dublin Schl. Dist." (2000). 2000 Decisions. Paper 93.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/93
Filed May 9, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 99-1613 

LOU ANN MERKLE 

 Appellant 

v. 

UPPER DUBLIN SCHOOL DISTRICT; 

UPPER DUBLIN TOWNSHIP POLICE DEPARTMENT; 

MARGARET THOMAS; CLAIR BROWN, JR., DR.; 

JACK HAHN, DETECTIVE 

Appeal from the United States District Court 

For the Eastern District of Pennsylvania 

D.C. No.: 98-cv-03703 

District Judge: Honorable Robert F. Kelly 

Argued: January 24, 2000 

Before: GREENBERG, ROTH, and ROSENN, 

Circuit Judges. 

(Filed: May 9, 2000) 

 A. Martin Herring (Argued) 

 A. Martin Herring & Associates 

 1845 Walnut Street, Suite 2240 

 Philadelphia, PA 19103 

 Counsel for Appellant 
 Jeffrey H. Quinn (Argued) 

 Duffy & Quinn 

 Independence Square West 

 The Curtis Center, Suite 1150 

 Philadelphia, PA 19106 

 Counsel for Appellees 

 Upper Dublin School, Margaret 

 Thomas, and Clair Brown 

 L. Rostaing Tharaud (Argued) 

 Marshall, Dennehey, Warner, 

 Coleman & Goggin 

 1845 Walnut Street 

 Philadelphia, PA 19103 

 Counsel for Appellees 

 Upper Dublin Twp. Police and 

 Jack Hahn 

OPINION OF THE COURT 

ROSENN, Circuit Judge. 

This appeal presents several interesting questions arising 

out of an alleged constitutional tort committed by a 

township school district and its superintendent in the 

arrest and prosecution of one of their teachers for the 

unlawful removal of school supplies. The plaintiff, Lou Ann 

Merkle, formerly a teacher at the Upper Dublin School 

District ("the District"), filed this action in the U.S. District 

Court for the Eastern District of Pennsylvania under 42 

U.S.C. S 1983. She alleged violations of her rights under the 

First, Fourth, Sixth, and Fourteenth Amendments, as well 

as pendent state law claims for defamation, invasion of 

privacy, false arrest and malicious prosecution. The 

defendants are the District, District Superintendent Dr. 

Clair Brown, Jr., and Sandy Run Middle School Principal 

Margaret Thomas (collectively, "the School Defendants"); 

and the Upper Dublin Police Department and Upper Dublin 

Police Detective Jack Hahn (collectively, "the Police 

Defendants"). 

The district court granted summary judgment in favor of 

 2 
all defendants as to Merkle's federal law claims. The court 

held that Merkle had failed to offer sufficient evidence to 

establish a genuine issue of material fact as to these 

claims, and also that Superintendent Brown, Principal 

Thomas, and Detective Hahn were entitled to qualified 

immunity. Having entered judgment for all defendants on 

these federal claims, the district court refused to exercise 

jurisdiction over Merkle's state law claims, and accordingly 

dismissed those claims without prejudice. Merkle timely 

appealed.1 We affirm the judgment of the district court as 

it relates to the Police Defendants and the principal, 

Margaret Thomas, but reverse as it applies to the School 

District and its superintendent, Dr. Clair Brown. 

I. 

Background 

Merkle taught art at Sandy Run Middle School in the

Upper Dublin School District of Pennsylvania. She had 

been a proponent of raising multicultural awareness in the 

District, and at times had been outspoken about her views. 

She was a leader in a local chapter of a group known as 

Seeking Educational Equity and Diversity, or SEED, which 

she had helped to bring to the school district with the 

approval of Superintendent Clair Brown. In addition, at a 

May 1996 public meeting of the District's Board of School 

Directors, Merkle spoke in support of a parent's request 

that The Adventures of Huckleberry Finn be removed from 

the District's required reading list because of its offensive 

language with respect to African Americans. Sometime 

thereafter, Superintendent Brown acceded to this request. 

Margaret Thomas took over as principal of Sandy Run

prior to the start of the 1996-97 school year. Merkle 

testified in her deposition in this case that shortly after 

Thomas assumed the principal post, she mentioned to

_________________________________________________________________ 

1. The district court had jurisdiction over Merkle's federal law claims 

pursuant to 28 U.S.C. SS 1331 and 1343(a)(3), and over her state law 

claims pursuant to 28 U.S.C. S 1367(a). This court has appellate 

jurisdiction pursuant to 28 U.S.C. S 1291. 

 3 
Merkle that she had attended the May 1996 board meeting, 

and that she felt it was a "mistake" for Merkle to publicly 

challenge a District policy at that meeting. 

On August 27, 1997, prior to the start of the 1997-98 

school year, Merkle and fellow art teacher Nancy 

Markowich were cleaning out the art supplies closet at the 

Sandy Run Middle School. They apparently decided that 

some of the items in the supply closet were no longer useful 

and could be donated to the North Hills Community Center, 

a local center serving underprivileged children. These items 

included two cartons containing a total of 144 unopened 

boxes of Crayola Crayons.2 At this time, Merkle was

unaware of any official school procedures for obtaining 

permission to donate art supplies, and apparently believed 

that such decisions were within the art teacher's discretion. 

The next day, Merkle brought these items to her car, which 

was parked outside the school. Margaret Thomas and 

Sandy Run Assistant Principal Wanda Anderson saw 

Merkle loading these boxes of supplies into her car, and 

Thomas approached Merkle and asked what she was doing. 

Merkle explained that Mrs. Markowich and she concluded 

that these materials "weren't useful in the curriculum," and 

that they intended to donate them to the North Hills 

Community Center. Thomas asked if Merkle had 

authorization to donate these materials. Merkle responded 

that she did not, and asked what Thomas suggested. 

Thomas replied that she did not know but that she would 

call the District's business manager to ascertain if there 

was a procedure for donations of school property. Thomas 

directed Merkle that in the meantime she should bring the 

art materials back inside the school. Merkle promptly 

complied. 

When Thomas called the business manager, he informed 

her that a list of the items sought to be donated must be 

compiled and submitted to the school board for approval. 

Thomas also spoke with Superintendent Brown who, after 

_________________________________________________________________ 

2. The total cost of the supplies in question is in dispute. The District 

contends the supplies have a approximate value between $250 and 

$400. Merkle claims, however, that the supplies are worth no more than 

$24. 

 4 
consulting the District's attorney, instructed Thomas to call 

the Upper Dublin Police Department to report the incident. 

Apparently Brown, however, personally called the Chief of 

Police to tell him that Thomas would be calling to report a 

teacher whom she had witnessed taking District property 

without permission, and who had admitted that she had 

done this in the past as well. Thomas informed Merkle that 

Brown had instructed her to call the police, and Thomas 

carried out Brown's instruction. 

The Police Department assigned Detective Hahn to the 

case. Hahn met with Thomas at Sandy Run Middle School 

on August 29, the day after the incident. Thomas told Hahn 

about the incident, and according to Hahn, explained that 

the District wanted "charges filed" against Merkle. Based 

solely on the information he learned from Thomas, Hahn 

swore out an affidavit of probable cause for Merkle's arrest, 

as well as a criminal complaint against her. In Hahn's 

affidavit of probable cause, he averred that Thomas

informed him that Merkle admitted to "stealing the supplies 

from the school." Hahn testified in his deposition that 

Thomas actually used the word "stealing" during their 

meeting, that this was the basis for his determination that 

probable cause for arrest did exist, and that he did not take 

any written statement from her. In Thomas's deposition in 

this case, however, she testified that she did not tell Hahn 

that Merkle had confessed to "stealing," but rather that 

Merkle had acknowledged that she knew the art materials 

were District property, and that she had not asked for or 

received permission to take these materials from the school. 

Nevertheless, Detective Hahn also testified that"taking 

another's property without permission" meant the same 

thing to him as "stealing." 

That same day, a meeting took place between Merkle,

Superintendent Brown, Principal Thomas, and the District's 

director of personnel. Merkle was represented at this 

meeting by individuals from her teacher's union. At this 

meeting, Merkle was informed that she would be suspended 

from her teaching position without pay pending the 

outcome of an investigation. 

On September 2, Hahn arrested Merkle and charged her 

with theft by taking pursuant to 18 Pa. Cons. Stat. Ann. 

 5 
S 3921.3 The police criminal complaint also charged her 

with receipt of stolen property pursuant to 18 Pa. Cons. 

Stat. Ann. S 3925,4 and criminal attempt pursuant to 18 

Pa. Cons. Stat. Ann. S 901.5 After her arrest, the School 

District suspended Merkle from her position, and 

Superintendent Brown wrote a letter to the school board 

recommending that Merkle be dismissed on the ground of 

"immorality." 

District Justice Patricia Zaffarano held a preliminary 

hearing on October 6, 1997, and bound Merkle over for 

trial. Thereafter, the incident received considerable 

attention in the local newspaper. The District issued a 

public statement explaining that Merkle was observed 

taking art supplies from Sandy Run, that Detective Hahn 

had filed a criminal complaint charging Merkle with theft, 

receiving stolen property, and criminal attempt to commit 

theft, that a district justice had found that a prima facie 

case existed on these charges, and that a trial date was 

going to be set. The District refused to make additional 

comment on the matter, except to say that the district 

attorney would contact the newspaper when he deemed

appropriate. 

Merkle filed a motion for habeas corpus in the Court of 

Common Pleas for Montgomery County, and on January 

16, 1998, her motion was granted and the charges against 

her dismissed. Merkle pursued administrative remedies 

regarding her employment status, and after 91 days of 

suspension and arbitration under the collective bargaining 

_________________________________________________________________ 

3. This provision states that "[a] person is guilty of theft if he 

unlawfully 

takes, or exercises unlawful control over, movable property of another 

with intent to deprive him thereof." 18 Pa. Cons. Stat. Ann. S 3921(a). 

4. This provision states that "[a] person is guilty of theft if he 

intentionally receives, retains, or disposes of movable property of 

another 

knowing that it has been stolen, or believing that it has probably been 

stolen, unless the property is received, retained, or disposed with intent 

to restore it to the owner." 18 Pa. Cons. Stat. Ann. S 3925(a). 

5. This provision states that "[a] person commits an attempt when, with 

intent to commit a specific crime, he does any act which constitutes a 

substantial step toward the commission of that crime." 18 Pa. Cons. 

Stat. Ann. S 901(a). 

 6 
agreement, she won reinstatement with back pay. Merkle 

has since left her position at the District. 

Merkle's complaint in the instant action raised numerous 

federal claims. Against the Police Defendants, she claims 

violation of her Fourth Amendment rights by arresting her 

without probable cause, and, with respect to the Police 

Department, by failing to train its detectives so as to 

prevent her arrest without probable cause. Against the 

School Defendants, she claims (1) violation of her First 

Amendment rights by retaliating against her for her

outspokenness on the issue of multicultural awareness, (2) 

violation of her Sixth Amendment rights by instituting a 

malicious prosecution against her, and (3) violation of her 

Fourteenth Amendment rights by defaming her, thereby 

infringing on her liberty interest in her good name, 

reputation, honor and integrity.6 She also raises a number 

of state law claims against all defendants. 

II. 

Discussion 

This court's review of the district court's order granting 

summary judgment in favor of the defendants is plenary. 

See Torres v. McLaughlin, 163 F.3d 169, 170 (3d Cir. 1998), 

cert. denied, 120 S. Ct. 797 (2000). Summary judgment 

may be granted where there exists no genuine issue as to 

any material fact, and the moving party is entitled to 

judgment as a matter of law. Fed. R. Civ. P. 56(c). In 

addressing a motion for summary judgment, the facts must 

be viewed in the light most favorable to Merkle, and she is 

entitled to every reasonable inference that can be drawn 

from the record. See Hamilton v. Leavy, 117 F.3d 742, 746 

(3d Cir. 1997). We first discuss Merkle's claims against the 

Police Defendants, and then her claim against the School 

Defendants. 

_________________________________________________________________ 

6. Although Merkle's complaint alleges her constitutional claims and a 

section 1983 claim separately, the district court correctly interpreted 

all 

of the constitutional claims as various bases supporting a claim arising 

under section 1983. 

 7 
A. 

The Police Defendants 

1. 

Detective Hahn 

On the appeal to this court, Merkle contends that the 

district court erred in granting summary judgment in favor 

of the Police Defendants on her Fourth Amendment claim 

that Detective Hahn arrested her without probable cause. 

"Probable cause to arrest exists when the facts and

circumstances within the arresting officer's knowledge are 

sufficient in themselves to warrant a reasonable person to 

believe that an offense has been or is being committed by 

the person to be arrested." Orsatti v. New Jersey State 

Police, 71 F.3d 480, 482 (3d Cir. 1995). Generally, "the 

question of probable cause in a section 1983 damage suit 

is one for the jury." Montgomery v. De Simone , 159 F.3d 

120, 124 (3d Cir. 1998); see also Sharrar v. Felsing, 128 

F.3d 810, 818 (3d Cir. 1997); Deary v. Three Un-Named 

Police Officers, 746 F.2d 185, 190-92 (3d Cir. 1984). This is 

particularly true where the probable cause determination 

rests on credibility conflicts. See Sharrar , 128 F.3d at 818; 

Deary, 746 F.2d at 192. However, a district court may 

conclude "that probable cause exists as a matter of law if 

the evidence, viewed most favorably to Plaintiff, reasonably 

would not support a contrary factual finding," and may 

enter summary judgment accordingly. Sherwood v. 

Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997). 

In Sharrar v. Felsing, 128 F.3d, 810, 817-18 (3d Cir. 

1992) this court reiterated the well-established rule that 

probable cause is defined in terms and circumstances 

sufficient to warrant a prudent man in believing that the 

suspect had committed or was committing a crime. Id. It is 

the function of this court to determine whether the

objective facts available to Detective Hahn at the time he 

arrested Merkle were sufficient to justify a reasonable belief 

that she had committed a theft. See id. at 818; United 

States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984), cert. 

 8 
denied, 471 U.S. 1018 (1985). In Illinois v. Gates, 462 U.S. 

213 (1983), the Court adopted a "totality of the 

circumstances" approach in assessing the existence of 

probable cause to issue a search warrant and "identified a 

`common sense' aspect to the issue of probable cause." 

(Quoted in Glasser, 750 F.2d at 1201.) Moreover, since this 

appeal comes to us from an order granting summary 

judgment in favor of the defendants, the facts must be 

considered in the light most favorable to Merkle. See Gallo 

v. City of Philadelphia, 161 F.3d 213, 219 (3d Cir. 1998). 

We, therefore, examine the evidence produced by Merkle 

to determine whether she has raised a genuine issue of 

material fact as to whether Detective Hahn had probable 

cause to arrest her. Moreover, the common law 

presumption raised by a magistrate's prior finding that 

probable cause exists does not apply to section 1983 

actions. 

The issue of whether Detective Hahn had probable cause 

to arrest rests almost entirely on his knowledge of what 

Merkle stated to Thomas when the latter interrupted the 

removal of the supplies. Merkle's version of what occurred 

is corroborated by Thomas. We therefore have a situation 

where Merkle was in the process of removing art teaching 

supplies which she and her colleague, Markowich, 

considered of no use in their curriculum. After having been 

informed of prior unsuccessful efforts to ascertain whether 

other teachers in the school had use for the unopened 

crayons, Merkle decided to turn over the supplies to the 

North Hills Community Center. In loading the supplies into 

her car for that purpose, Merkle assumed that as an art 

teacher, she had the discretion and authority to do this. 

When questioned by Thomas, Merkle promptly and 

candidly informed her that the supplies, in her mind, were 

useless and that she believed she implicitly had the 

authority to dispose of them. When Thomas questioned 

Merkle's authority to do this, Merkle promptly returned the 

supplies to the school building. Thomas did not regard the 

removal as a theft. 

If "at the moment the arrest was made . . . the facts and 

circumstances within [the defendant's] knowledge and of 

 9 
which [he] had reasonably trustworthy information were 

sufficient to warrant a prudent man in believing" that the 

plaintiff had violated the law, probable cause is present. 

Hunter v. Bryant, 502 U.S. 224, 228 (1991) (quoting Beck 

v. Ohio, 379 U.S. 89, 91 (1964)). In challenging Detective 

Hahn's determination that probable cause to arrest existed, 

Merkle has the burden of showing, by a preponderance of 

the evidence, that (1) Hahn knowingly and deliberately, or 

with a reckless disregard for the truth, made false

statements or omissions in his affidavit of probable cause 

that create a falsehood in applying for an arrest warrant; 

and (2) such statements or omissions are material to the 

finding of probable cause. See Franks v. Delaware, 438 

U.S. 145, 171-72 (1978); Sherwood, 113 F.3d at 399.

In his affidavit, Hahn stated that Principal Thomas told 

him that Merkle had admitted to "stealing" the art supplies. 

In his deposition in this case, Hahn testified that had 

Merkle not admitted improper conduct to Thomas, he 

would not have concluded that probable cause existed to 

arrest. As the district court acknowledged, however, there is 

conflicting testimony on the record about the accuracy of 

Hahn's description of Merkle's admission. Although Hahn 

testified that Thomas told him Merkle confessed to 

"stealing," Thomas testified that she merely told him that 

Merkle admitted to taking school property without 

permission. Detective Hahn's testimony on this point is 

somewhat confused. He testified that for his purposes, 

"stealing" meant the same thing to him as taking another's 

property without permission. However, he also testified that 

had Thomas not used the word "stealing," he would not 

have concluded that there existed probable cause to arrest 

Merkle. The district court found that this factual dispute 

was immaterial, holding that "when an individual . . . is 

found loading her car with materials that do not belong to 

her, and reliable witnesses attest to this, a police officer 

who gets the report has probable cause to arrest." (Op. at 

11). Specifically, the court held that these circumstances 

were sufficient to support an arrest for the crime of theft by 

taking, which requires only the taking of property with the 

intent to deprive the owner thereof. (Op. at 12). 7

_________________________________________________________________ 

7. The district court did not address whether Hahn had probable cause 

to arrest Merkle for the other crime with which she was charged, receipt 

 10 
Viewing the facts in the light most favorable to Merkle, 

this court must assume that Thomas told Hahn merely that 

Merkle admitted that she had no permission to take the 

property she was found loading into her car. The question 

therefore becomes whether a reasonable person in Hahn's 

position could have concluded, based on this knowledge, 

that Merkle had committed a crime. Merkle argues that the 

district court's reasoning is flawed because the mere report 

of a witness that an individual was seen loading her car 

with materials that did not belong to her does not establish 

probable cause in all cases. For example, a teacher might 

be taking home materials belonging to the school to prepare 

class lessons. This, Merkle, contends, does not evidence an 

intent to deprive the District of its property. However, 

Thomas also told Hahn of Merkle's announced intention to 

give the property to the North Hills Community Center. 

Thus, Hahn possessed knowledge of a credible report from 

a credible eyewitness that Merkle did intend to deprive the 

District of its property. Accordingly, a reasonable jury could 

not find that Hahn lacked knowledge of sufficient facts to 

establish probable cause to arrest Merkle for the crime of 

theft by taking.8 

_________________________________________________________________ 

of stolen property. Arguably, probable cause to arrest Merkle for this 

crime did not exist. This crime requires that the defendant must have 

known or believed the property at issue was "stolen." See supra note 3. 

There was no indication that Merkle viewed the art supplies in this 

manner. Rather, she appears to have genuinely believed that she had 

discretion to donate the property. Regardless, if Merkle's arrest on the 

charge of theft by taking was proper, we will not invalidate it merely 

because she was also improperly charged with the additional crime. 

Although a different conclusion may be warranted if the additional 

charge results in longer detention, higher bail, or some other added 

disability, there is no evidence in this record that the charge of receipt 

of stolen property had such effect. 

8. Merkle also contends that Hahn lacked probable cause because he 

failed to interview other witnesses, such as Vice Principal Anderson, art 

teacher Markowich, or Merkle herself, prior to making the arrest. 

However, Hahn had every reason to believe a credible report from a 

school principal who witnessed the alleged crime. This report alone 

sufficiently established probable cause. Hahn was not required to 

undertake an exhaustive investigation in order to validate the probable 

cause that, in his mind, already existed. See Gramenos v. Jewel Cos., 

Inc., 797 F.2d 432, 439 (7th Cir. 1986), cert. denied, 481 U.S. 1028 

(1987); Morrison v. United States, 491 F.2d 344, 346 (8th Cir. 1974). 

 11 
2. 

The Police Department 

In her complaint, Merkle also charged the Upper Dublin 

Township Police Department with violating her Fourth 

Amendment rights. Under section 1983, municipal liability 

arises only when a constitutional deprivation results from 

official custom or policy. See Monell v. Department of Social 

Servs. of City of New York, 436 U.S. 658, 690-91 (1978); 

Montgomery, 159 F.3d at 126-27 (citing City of Canton, Ohio 

v. Harris, 489 U.S. 378, 388 (1989)). Merkle makes no 

argument on appeal regarding her claim that the Upper 

Dublin Police Department violated her Fourth Amendment 

rights by failing to properly train Detective Hahn. It appears 

that Merkle has waived this claim, and therefore, this court 

need not address it. See Warren G. v. Cumberland County 

Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (issue waived if 

not raised in party's opening brief). 

B. 

The School Defendants 

Merkle also claims that the School Defendants (1) 

maliciously prosecuted her in violation of the her Sixth 

Amendment rights, (2) retaliated against her for her 

outspoken support of multiculturalism in violation of her 

First Amendment rights, and (3) caused harm to her 

reputation in violation of her Fourteenth Amendment

rights. 

Merkle contends that the School Defendants violated her 

constitutional rights by initiating and pursuing her 

prosecution even though Superintendent Brown and 

Principal Thomas knew that she had committed no crime.9 

Although the charges against Merkle were filed and the 

actual prosecution conducted by Detective Hahn, 10 both 

_________________________________________________________________ 

9. Based on Merkle's complaint, her claims against the District appear to 

be based on the acts of Superintendent Brown as the District's 

policymaking official. 

10. Apparently, in cases of this type, the investigating detective often 

represents the Commonwealth at the preliminary hearing. Consequently, 

Detective Hahn acted as the prosecutor at Merkle's preliminary hearing. 

 12 
Hahn and the Chief of Police testified that the police 

department would not have pressed charges and pursued 

the criminal prosecution unless (1) the victim requested it 

and (2) it believed it had probable cause to do so. The Chief 

of Police further testified that once charges werefiled, those 

charges would not be withdrawn unless the victim so

requested. It is undisputed that in his initial telephone call 

to the Chief of Police, Superintendent Brown said he 

wanted criminal charges filed against Merkle if sufficient 

evidence existed. In her initial meeting with Detective Hahn, 

Thomas informed him that Superintendent Brown wanted 

to press charges against Merkle. Prior to the preliminary 

hearing, Hahn asked Superintendent Brown if he still 

wanted to go through with the prosecution, and Dr. Brown 

replied that he did. Therefore, the School Defendants, not 

just the Police Defendants, are responsible for Merkle's 

prosecution. 

The district court analyzed Merkle's S 1983 malicious 

prosecution claim based on the elements of the common 

law tort of malicious prosecution. In Pennsylvania, a 

plaintiff alleging common law malicious prosecution must 

show (1) the defendants initiated a criminal proceeding; (2) 

the criminal proceeding ended in the plaintiff 's favor; (3) 

the proceeding was initiated without probable cause; and 

(4) the defendants acted maliciously or for a purpose other 

than bringing the plaintiff to justice. See Hilfirty v. 

Shipman, 91 F.3d 573, 579 (3d Cir. 1996). The court held 

that Merkle's claim failed on the third element, relying on 

its holding that Detective Hahn had probable cause to 

arrest Merkle. 

Although the parties do not so contend, the district 

court's analysis appears not to have been abreast of recent 

developments in the law. It was at one time the law of this 

circuit that a plaintiff alleging a section 1983 claim for 

malicious prosecution would be required only to show the 

elements of the common law tort. See Lee v. Mihalich, 847 

F.2d 66, 69-70 (3d Cir. 1988). However, in the aftermath of 

the Supreme Court's decision in Albright v. Oliver, 510 U.S. 

266 (1994), this court has acknowledged that this is no 

longer the case. In Albright, the Court held that a claim of 

malicious prosecution under section 1983 cannot be based 

 13 
on substantive due process considerations, but instead 

must be based on a provision of the Bill of Rights providing 

"an explicit textual source of constitutional protection." Id. 

at 272 (citation and internal quotation marks omitted). 

This court has since noted that Albright"casts doubt" on 

prior circuit precedent adopting common law malicious 

prosecution as the test in a S1983 action. Gallo v. City of 

Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998). The court 

in Gallo analyzed whether a malicious prosecution claim 

arose from the Fourth Amendment, i.e., whether the 

prosecution worked a post-indictment "seizure" on the 

S 1983 plaintiff. The court concluded that the malicious 

prosecution at issue did work a post-indictment seizure 

where the plaintiff 's liberty "was constrained in multiple 

ways for an extended period of time." Id. at 225. 

Specifically, the plaintiff was subjected to travel restrictions 

and was compelled to attend a number of court hearings 

over an eight-and-a-half month period. Id. Accordingly, the 

Gallo court reversed the district court's grant of summary 

judgment for the defendants, and remanded for further 

proceedings. 

We have expanded on the altered nature of the postAlbright malicious prosecution landscape in Torres v. 

McLaughlin, 163 F.3d 169 (3d Cir. 1998). The Torres court 

read Albright as standing for the proposition that a section 

1983 malicious prosecution claim could be based on a 

constitutional provision other than the Fourth Amendment, 

including the procedural component of the Due Process 

Clause, so long as it was not based on substantive due 

process. Id. at 173.11 

Merkle predicates her constitutional malicious 

prosecution claim on the First and Sixth Amendments. We 

turn to her Sixth Amendment claim first because it requires 

only a minimum of discussion. It is difficult to understand 

_________________________________________________________________ 

11. This court did not immediately recognize that Albright changed the 

manner in which S 1983 malicious prosecution claims must be analyzed. 

For example, in Hilfirty v. Shipman, decided two-and-a-half years after 

Albright, we continued to adhere to the pre-Albright common law analysis 

of malicious prosecution claims brought under S 1983. See 91 F.3d at 

579. 

 14 
how the Sixth Amendment is implicated here. That 

amendment affords individuals rights to a speedy trial, to 

an impartial jury, to know the nature and cause of a 

criminal accusation, to be confronted with the witnesses 

against them, and to effective assistance of counsel. Merkle 

makes no effort to relate her claim to the rights afforded by 

the Sixth Amendment. She does, however, explain that she 

was deprived of liberty by reason of the prosecution, 

because she was compelled "to attend court hearings and 

her job [was] placed in jeopardy as a result of being charged 

with a crime of moral turpitude." (Appellant's Br. at 25 n.9). 

The latter argument -- that her job was placed in jeopardy 

because she was charged with a crime of moral turpitude -- 

seems akin to a substantive due process argument. Indeed, 

no constitutional provision other than the substantive 

component of the Due Process Clause even arguably affords 

the protection Merkle asserts. As noted above, however, the 

Supreme Court held in Albright that a violation of 

substantive due process is no basis for a malicious

prosecution claim brought pursuant to section 1983.

Merkle's former argument -- that she was compelled to 

attend court hearings by reason of the false prosecution -- 

seems like a Fourth Amendment seizure argument similar 

to the argument considered by this court in Gallo. Merkle 

has failed to assert the Fourth Amendment as the basis for 

her claim against the School Defendants, however, even 

though this court gave her the opportunity to do so at oral 

argument. We therefore do not address this argument. 

Merkle next claims that the School Defendants instituted 

a criminal prosecution against her and suspended her from 

her teaching position to retaliate for her outspoken 

statements in support of multicultural awareness. Merkle's 

retaliation claim is analyzed under a three step, burdenshifting methodology. First, Merkle must demonstrate that 

her speech was protected. For purposes of this appeal, the 

parties concede that it was. Second, Merkle must show that 

her speech was a motivating factor in the alleged retaliatory 

action. Third, the School Defendants may defeat Merkle's 

claim by establishing that it would have taken the same 

adverse action against Merkle even in the absence of her 

protected speech. See Mt. Healthy City Sch. Dist. Bd. of 

 15 
Educ. v. Doyle, 429 U.S. 274, 287 (1977); Latessa v. New 

Jersey Racing Comm'n, 113 F.3d 1313, 1319 (3d Cir. 1997). 

The district court granted summary judgment for the

School Defendants on the retaliation claim. The court found 

that the School Defendants would have suspended Merkle 

from her teaching position, even absent her speech, based 

on their discovery that she was putting school supplies into 

her car for which she was arrested. Merkle correctly points 

out that the district court defined the alleged retaliatory 

action too narrowly, focusing only on the District's decision 

to suspend Merkle. Merkle's claim of retaliation is directed 

at the whole course of conduct by the School Defendants in 

persisting to press criminal charges against her instead of 

handling the matter administratively. 

That course of conduct grew out of a conversation 

between Thomas and Merkle when Thomas saw Merkle 

carrying openly and in daylight a carton of school supplies 

to her car. It is, however, the conduct which occurred after 

this that is significant: Superintendent Brown's telephone 

call to his friend, the Chief of Police, in which, despite 

Brown's knowledge that Merkle intended to donate the 

supplies to the North Hills Community Center, Brown

expressed his desire for an investigation and prosecution; 

Brown's persistence despite the Chief 's query"are you sure 

you want to do this?"; the failure of the District to consider 

taking administrative action, rather than instituting 

criminal prosecution, against Merkle for what the police 

considered to be an internal school district matter, 

particularly in view of the lack of a school district policy on 

the disposal of surplus supplies; Brown's affirmation to 

Hahn before the preliminary hearing that Brown still 

wanted to prosecute Merkle; and Brown's recommendation 

to the school board that Merkle be dismissed on the ground 

of "immorality." 

Additional conduct which we find significant is the

statement Brown made to the press, after consulting with 

the District's solicitor, apparently in response to the events 

at a school board meeting at which approximately two 

hundred community residents protested Merkle's 

suspension and prosecution. The press release denied that 

the crayons could not be used by the District. It explained 

 16 
that the school administration could not comment at the 

meeting on the action it had taken because, the District 

Justice having found a prima facie case on charges of theft, 

receipt of stolen property and criminal attempt at theft, "it 

is fundamental and basic to fairness and legal ethics that 

no comment by the parties be made in a criminal 

proceeding until the matter is adjudicated." The statement, 

however, gave no information on Merkle's version of the 

incident. 

Brown claims to have acted out of concern that this

incident was part of a pattern of unauthorized disposition 

of District property to the North Hills Community Center 

and elsewhere. Indeed, Thomas did report to Brown that 

the two cartons of crayons she found Merkle loading into 

her car were unopened.12 Under these circumstances,

however, whether Brown acted out of a concern that 

valuable supplies were being stolen or whether he 

criminally prosecuted Merkle and terminated her contract 

with the District in retaliation for her activities in promoting 

multicultural awareness is a disputed question of fact for a 

jury and not a question of law for the trial court.

Merkle charges that the District embarked on its course 

of malicious prosecution because of her activities with 

SEED, which were protected, inter alia, by the First 

Amendment. Merkle played a leadership role in SEED and 

was a member of its academic and cultural sensitivity task 

force. SEED provided books and films to teachers to train 

them on diversity issues before problems arose in the 

classroom. It was through SEED that the protest was made 

to the school board of having "Huckleberry Finn" as

required reading. After Merkle stated at a school board 

meeting that "Huckleberry Finn" should be"pulled," 

_________________________________________________________________ 

12. Merkle was under the impression that the crayons were the result of 

"a gross over-order" about eight years before. She testified that over a 

course of years, Nancy Markowich put announcements in the daily 

bulletin that goes out to all teachers in the Sandy Run School offering 

the crayons, but no one requested them. In addition to the crayons, 

there was some dry powder paint, a jar or two of old tempera paint, and 

some dry glue. The cart with usable general supplies was rolled into the 

general supply closet for retention. 

 17 
Thomas told Merkle that "when your school had a policy, as 

a teacher it's a mistake to speak out against it publicly." 

Our review of this entire course of events convinces us 

that Merkle has not produced evidence that Thomas's

actions, including her report to the superintendent of the 

removal of supplies, amounted to retaliatory action against 

Merkle. For that reason, we will affirm the district court's 

order granting summary judgment for Margaret Thomas. 

We differ with the district court, however, with respect to 

Merkle's claims against the Upper Dublin School District 

and its superintendent, Dr. Clair Brown. We believe that 

whether these defendants' actions against Merkle were 

retaliatory is, for purposes of summary judgment, 

influenced by the strength of Merkle's claim against them 

for common law malicious prosecution. 

We begin our analysis as to the District and Brown with 

the threshold question of whether the presence of probable 

cause for Detective Hahn to make the arrest also imputes 

probable cause in behalf of the School Defendants to the 

criminal prosecution. The action of the School District in 

initiating the criminal proceedings and pressing unfounded 

criminal charges against Merkle can render the District 

liable for its major role in a malicious prosecution. 

Although the police may have acted on the reasonable belief 

that they had probable cause to arrest Merkle, whether the 

School Defendants had probable cause to pursue Merkle's 

prosecution is an independent inquiry, the outcome of 

which is not dictated by our holding that Hahn had 

probable cause to arrest Merkle. Hahn acted only on what 

Principal Thomas told him. As instigators of the arrest, 

however, it is possible that the District and Brown were in 

possession of additional information, not provided to 

Detective Hahn, that would negate any probable cause they 

may otherwise have had to prosecute Merkle. Thus, in 

analyzing the common law claim of malicious prosecution, 

we must consider the facts known to the District and its 

superintendent to determine whether they had probable 

cause to prosecute. See Simmons v. Poltrone, No. Civ. A. 96- 

8659, 1997 WL 805093, at *8 n.6 (E.D. Pa. Dec. 17, 1997); 

Doby v. Decrescenzo, No. Civ. A. 94-3991, 1996 WL 

510095, at *13 (E.D. Pa. Sept. 9, 1996); Hess v. County of 

Lancaster, 514 A.2d 681, 683-84 (Pa. Commw. Ct. 1986). 

 18 
On the basis of the facts as outlined above, see supra at 

17, we conclude that a jury could find that Brown, and 

through him the School District, acted maliciously in 

pressing unfounded criminal charges against Merkle and 

could reasonably infer that Merkle's protected speech was 

a motivating factor in this course of action. Where a 

reasonable inference can be drawn that an employee's 

speech was at least one factor considered by an employer in 

deciding whether to take action against the employee, the 

question of whether the speech was a motivating factor in 

that determination is best left to the jury. See Watters v. 

City of Philadelphia, 55 F.3d 886, 891 n.3 (3d Cir. 1995); 

Johnson v. Lincoln Univ. of Commonwealth System of Higher 

Educ., 776 F.2d 443, 454 (3d Cir. 1985); Clemens v.

Dougherty County, Georgia, 684 F.2d 1365, 1368-71 (11th 

Cir. 1982). 

We believe the evidence of Merkle's successful challenge 

to the School District's inclusion of "Huckleberry Finn" in 

the school's curriculum at an open meeting and her 

outspokenness about the need for greater cultural 

sensitivity in the District is sufficient on the facts presented 

to raise such questions of fact. When this arguably

disfavored protected speech is coupled with (1) Brown's 

determination to pursue a criminal prosecution even

though the objective evidence and police comments 

indicated that the matter should be pursued 

administratively, and (2) his deliberate recommendation 

that Merkle be permanently discharged for "immorality" as 

opposed to simply pursuing administrative alternatives 

such as "verbal counseling at the time of the incident or at 

most a written warning" (which the arbitrator later found 

would have been an appropriate, proportional response), 

room for the inference of discriminatory animus expands 

considerably. 

An arrest is a serious matter, especially an arrest of a 

public school teacher whose professional career 

instantaneously is put in jeopardy by stigmatic public 

charges. The arrest humiliates the teacher before her 

pupils, her teaching colleagues and the public. To arrest a 

teacher on the "scanty grounds" adduced here, Albright v. 

Oliver, 975 F.2d 343, 345 (7th Cir. 1992), especially when 

 19 
there were other less oppressive options, is shocking. The 

supplies, even under the District's estimate of their value, 

were not of sufficient moment to warrant such drastic and 

irreparable action. If, in their disposition, Merkle exceeded 

her discretionary authority or even violated her presumptive 

authority,13 there were reasonable alternatives by which the 

District could exercise control and discipline and give each 

teacher appropriate notice of school policy for disposing of 

useless or surplus supplies. Under these circumstances, 

and especially in the face of doubts on the part of the police 

officers, a jury could reasonably find that the 

Superintendent's decision to arrest and his deliberate 

decision to recommend to the School Board that Merkle's 

contract be terminated on the basis of "immorality" was 

motivated by a desire to retaliate against her for her 

protected activities and not by an interest in protecting the 

unauthorized removal of supplies. A jury could reasonably 

find that the underlying motivation for the discharge lay 

embedded in Merkle's temerity to advocate her 

multicultural program to the School District. In any event, 

these were questions of fact for jury determination, not 

questions of law for the court. 

_________________________________________________________________ 

13. Dr. Brown acknowledged that the faculty handbook does not set 

forth any policy concerning the disposal of useless or surplus supplies. 

He testified on deposition that not every single supply item given to a 

teacher requires Board approval, that some "are thrown out or 

discarded." 

He further testified: 

 Q: So your position is that when an item becomes unusable it 

 should be kept, and then you need board approval for that? 

 A: I didn't say that. I said when an item becomes disposable or in 

 the condition to be disposed of, there's an orderly process to be 

 disposed of. 

 Q: And some of that is within the teacher's discretion; correct? 

 A: It's in the teacher's discretion to recommend the disposal of 

 materials, certainly. 

 Q: And even to dispose of them, isn't it? 

 A: I guess that's a judgment that a teacher can make, sure. 

 20 
The dissent rests entirely on the conclusion that Merkle 

actually committed the crime of theft when "she unlawfully 

took or exercised control over [the property] with the 

admitted intent to deprive the School District of it." 

Concurrence and Dissent at 26 and 32. This conclusion, it 

believes, is commanded by language in Gottesfeld v.

Mechanics & Traders Insurance Co., 173 A.2d 763, 766 (Pa. 

Super. Ct. 1961). Significantly, the Gottesfeld case relied 

upon the Pennsylvania Supreme Court's decision in 

Thomas v. Kessler, 5 A.2d 187 (Pa. 1939). In Thomas, the 

plaintiff, a beneficiary of a trust which owned shares of a 

newspaper, went to the newspaper's offices and took some 

stationary, believing she had the right to do so by virtue of 

her interest in the trust. She was charged by the 

newspaper's president with larceny, and she in turnfiled a 

malicious prosecution action against the president. The 

Court of Common Pleas entered a compulsory nonsuit in 

the malicious prosecution action, holding that the 

newspaper's president had probable cause to believe the 

plaintiff had committed a theft. On appeal, the 

Pennsylvania Supreme Court reversed and remanded for 

trial. The Supreme Court held: 

 When the facts and circumstances . . . are considered, 

 it is obvious that no larceny was committed, that there 

 was no felonious intent in plaintiff 's mind , that she was 

 not stealing the few sheets of paper, and that she took 

 it because she thought, mistakenly perhaps, that she 

 had the right to. 

Id. at 188 (emphasis added). The court summarized its 

holding as follows: "It has been repeatedly held that when 

one takes property under a claim of right, even though 

mistaken, larceny is not committed." Id.; accord Penn-Air, 

Inc. v. Indemnity Ins. Co. of N. Am., 269 A.2d 19, 22-24 (Pa. 

1970); Commonwealth v. Compel, 344 A.2d 701, 702-03

(Pa. Super. Ct. 1975). See also Commonwealth v. Sleighter, 

433 A.2d 469, 471 (Pa. 1981). 

The Thomas case bears a striking resemblance to the

facts at hand. When Merkle removed the art supplies from 

the supply closet and decided to donate them to the North 

Hills Community Center, she too did so without "felonious 

intent." Indeed, she believed that as an art teacher, she had 

 21 
discretion to discard property she believed to be useless or 

give it to a non-profit institution that might possibly use it. 

In other words, she believed she had the District's implied 

consent to dispose of the property under these 

circumstances and "that she had the right" to do what she 

did. The School Defendants do not dispute this perception 

of Merkle's mental state at the time she removed the art 

supplies. Thus, based on the undisputed facts, Merkle 

cannot be said to have committed the crime of theft by 

taking. 

The dissent is concerned that under the majority's view, 

employers will be reluctant to bring criminal proceedings 

against an employee even when the employee is found

violating the criminal law. Concurrence and Dissent at 

30-32. We believe this fear is groundless. An employer 

incurs no risk of a suit for malicious prosecution when the 

employer has probable cause to believe that its employee 

had committed a criminal violation. Here, however, the 

employer never had cause to find a criminal violation, 

because it knew that Merkle acted without criminal intent. 

The dissent assumes that Merkle committed a criminal 

violation, an assumption that is negated by the facts, the 

circumstances, and the law. 

Finally, Merkle claims that as to the School District and 

Dr. Brown, their actions willfully and recklessly caused 

injury to her "good name, reputation, honor and integrity," 

in which she had a liberty interest under the Fourteenth 

Amendment. Specifically, she points to (1) Dr. Brown's 

report to the Chief of Police that Merkle had been caught 

loading District property into her car without authorization, 

and noting his concern that this had been going on for 

some time, and (2) the District's statement to the local 

newspaper regarding the Merkle prosecution claimed that 

the art supplies were valuable and usable to the District, 

and described the District as "the party offended against," 

but omitted mention of Merkle's explanation that she 

believed the supplies were useless and unnecessary to the 

curriculum, and that she intended to donate them to the 

North Hills Community Center. (Appellant's Br. at 33-34). 

This court has warned against "equat[ing] a state 

defamation claim with a cause of action under section 1983 

 22 
predicated on the Fourteenth Amendment." See Kelly v. 

Borough of Sayreville, 107 F.3d 1073, 1078 (3d Cir. 1997). 

Thus, the Fourteenth Amendment does not protect injury to 

reputation alone, Paul v. Davis, 424 U.S. 693, 701-10 

(1976); Clark v. Township of Falls, 890 F.2d 611, 619 (3d 

Cir. 1989). However, Merkle may show that her Fourteenth 

Amendment rights were violated if the harm to her 

reputation occurred while she was being deprived of

another constitutional right. See Ersek v. Township of 

Springfield, 102 F.3d 79, 83 n.5 (3d Cir. 1996); Robb v. City 

of Philadelphia, 733 F.2d 286, 294 (3d Cir. 1984). 

The district court held that, because it had dismissed all 

of Merkle's other constitutional claims, she could not show 

that any false statements by the District were made in the 

course of another constitutional violation. However, 

because we believe that there is a question of fact for a jury 

as to whether Brown was motivated by Merkle's exercise of 

her First Amendment right of speech to initiate a baseless 

prosecution, she may be able to adduce evidence of an 

injury to her reputation while in the exercise of a

constitutional right. The truth or falsity of several of the 

allegedly defamatory statements identified by Merkle are 

disputed issues of fact and these too are questions for a 

jury. See Ersek, 102 F.3d at 84 & n.7. In light of our 

determination that it was error for the district court to 

grant the motion of the District and Dr. Brown for 

summary judgment on the First Amendment claim, the 

disposition of Merkle's claim of injury to her reputation will 

also be reversed and remanded. 

The district court alternatively held that Superintendent 

Brown was entitled to qualified immunity for his action. 

Government officials performing discretionary functions . . . 

are shielded from liability for civil damages insofar as their 

conduct does not violate clearly established constitutional 

rights of which a reasonable person would have known." 

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1992). A defendant 

is entitled to qualified immunity if reasonable officials in 

the defendant's position at the relevant time "could have 

believed, in light of clearly established law, that their 

conduct comported with established legal standards." 

Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 

 23 
(3d Cir. 1989), cert. denied, 493 U.S. 1044 (1990). The 

parties do not dispute that the relevant law was clearly 

established at the time of Brown's actions. Thomas, who 

first reported the removal of the supplies, never suggested 

prosecution or that Merkle's conduct amounted to theft. 

Similarly, Coleman, the business manager, considered it a 

matter merely requiring Board approval. 

An objective and reasonable assessment under the 

circumstances disclosed at most a mistake in judgment or 

probable exercise of excessive authority, but not a criminal 

intent to steal. The Chief of Police and Detective Hahn both 

raised warning lights for criminal prosecution; Brown, 

however, was determined to arrest and to persist in the 

prosecution. In view of our analysis that Merkle's version of 

the facts supports the proposition that Brown, and through 

him the District, maliciously prosecuted Merkle in 

retaliation for her protected First Amendment activities, it 

follows that Brown is not entitled to qualified immunity. 

Viewed objectively, the act of arrest followed by the refusal 

to withdraw the charges was unreasonable. 

III. 

Conclusion 

Accordingly, the order of the district court granting 

summary judgment to the Police Defendants and to 

Margaret Thomas, the school principal, will be affirmed. 

The order granting summary judgment to the School 

District and its superintendent, Dr. Clair Brown, Jr., and 

alternatively granting Dr. Brown qualified immunity, will be 

reversed and the case remanded for appropriate 

proceedings consistent with this opinion. Each side to bear 

its own costs. 

 24 
GREENBERG, Circuit Judge, concurring and dissenting. 

I concur in and join the majority opinion to the extent 

that it affirms the order of the district court granting 

summary judgment but to the extent that it reverses, I 

dissent. I think that it is perfectly plain that Merkle was the 

only person who did anything wrong in the matters involved 

in this litigation. Under 18 Pa. Cons. Stat. Ann.S 3921(a) 

(West 1983), "[a] person is guilty of theft if he unlawfully 

takes, or exercises unlawful control over, movable property 

of another with intent to deprive him thereof." It is clear 

that Merkle, without any authority, took 144 unopened 

boxes of Crayola Crayons belonging to the School District 

and was loading them in her car when Thomas interrupted 

her. Indeed, even on this appeal Merkle acknowledges that 

"Prior to this incident, [she] was unaware of any official 

procedure applicable" to the disposal of property. Br. at 5- 

6. Thus, surely she should not have taken the property, as 

she could not take her lack of knowledge of a procedure on 

how to dispose of property to mean that she had a license 

to determine what property was unneeded and to whom the 

district should donate it. 

In this regard, I emphasize the following. In Merkle's brief 

she never contends that she asked the School Defendants 

for permission to donate the crayons to the North Hills 

Community Center before she removed them. Rather, she 

only contends that no other teacher at the Sandy Run 

Middle School expressed interest in the crayons. See br. at 

5. Thus, she could not have known whether other schools 

in the district could have made use of the crayons, perhaps 

in a lower grade level than the levels in the middle school 

where she taught. Moreover, when Merkle removed the

crayons she could not know whether the School District, if 

it determined to dispose of them, would have considered 

the community center as the appropriate donee. Rather, for 

all she knew, the School District would have preferred to 

give away its property to a different recipient. 

It is true, of course, that when Thomas interrupted

Merkle when she was taking the property she returned it to 

the school, and the majority makes much of this conduct. 

But I really do not understand why it does so. After all, 

what else could Merkle have done? What the majority does 

 25 
not consider is that except for the fortuitous circumstance 

that Thomas observed her taking the crayons, the School 

Defendants never might have been aware that she took 

them. Of course, Merkle already had completed the offense 

before she returned the property as she unlawfully took or 

exercised control over it with the admitted intent to deprive 

the School District of it. In the circumstances, there is not 

even a scintilla of doubt but that the School Defendants 

had probable cause as a matter of law to believe that 

Merkle committed a crime when she removed the crayons 

which Merkle could not erase with her after-the-fact 

conduct and explanations. See Gottesfeld v. Mechanics and 

Traders Ins. Co., 173 A.2d 763, 766 (Pa. Super. Ct. 1961) 

("Larceny, by definition, is taking or carrying away the 

property of another with intent to convert it to the use of 

someone other than the owner without his consent."). 

The majority cites Thomas v. Kessler, 5 A.2d 187, 188 

(Pa. 1939), for the principle that "[i]t has been repeatedly 

held that when one takes property under a claim of right, 

even though mistaken, larceny is not committed." That 

principle, however, is not applicable here as Merkle, unlike 

the plaintiff in Thomas, never has made"a claim of right" 

to the property involved. Quite to the contrary she always 

has acknowledged that the School District was the owner of 

the crayons. She only has claimed that she had the power 

to give away the property. Thus, the facts here, rather than 

bearing "a striking resemblance" to those in Thomas, as the 

majority suggests, maj. op. at 21, plainly are 

distinguishable from those in that case. The same is true of 

the other cases the majority cites as they, too, were 

concerned with the meaning of "claim of right." Therefore 

none of the cases the majority cites can detract from the 

circumstance that the School Defendants had probable 

cause to believe that Merkle was guilty of a theft.

I recognize, of course, that the Court of Common Pleas of 

Montgomery County on Merkle's habeas corpus petition 

found the facts failed to show by the preponderance of the 

evidence that Merkle engaged in criminal activity, and 

suggested that if she was at fault that the matter be 

handled administratively. Nevertheless that finding and 

suggestion cannot change the circumstance that the School 

 26 
Defendants had probable cause to believe that she 

committed a theft. Similarly, the view of the majority that 

the matter should have been handled administratively does 

not change the fact that the School Defendants had 

probable cause to believe a crime had been committed.1 

Where, then, are we? Merkle contends that the district 

court "incorrectly determined the issue of probable cause, 

since the facts in dispute created an issue solely reserved 

for jury resolution." Br. at 10. Obviously, the majority 

agrees. But there is no issue of fact for whatever Merkle's 

state of mind, the School Board had probable cause to 

believe that she had committed an offense. I emphasize in 

this regard that Merkle was donating unopened boxes of 

crayons to the community center, items which surely had 

some value for Merkle was not throwing them away. Thus, 

even without regard for the enhanced requirements under 

Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807 (1994), for 

a 42 U.S.C. S 1983 malicious prosecution action, see Gallo 

v. City of Philadelphia, 161 F.3d 217, 221-22 (3d Cir. 1998), 

the malicious prosecution aspect of this case should fail.2 

_________________________________________________________________ 

1. Considering the rather minor nature of the offense here, I agree that 

an administrative disposition of the matter would have been appropriate. 

But my view no more than that of the Common Pleas Court or majority 

can detract from the fact that the School Defendants had probable cause 

to believe that Merkle had committed a criminal offense. 

2. Merkle correctly points out that in Gallo we indicated that in a 

section 

1983 malicious prosecution action a plaintiff might not be required to 

establish all of the elements of the common law tort of malicious 

prosecution. See Gallo, 161 F.3d at 222 n.6; but see Hilfirty v. Shipman, 

91 F.3d 573, 579 (3d Cir. 1996) ("In order to state a prima facie case for 

a section 1983 claim of malicious prosecution, the plaintiff must 

establish the elements of the common law tort as it has developed over 

time."). Nevertheless, inasmuch as the majority includes an analysis of 

whether the School Defendants had probable cause to initiate the 

criminal proceedings and the parties have briefed that issue, I, too, will 

analyze the case on that basis. In any event, I believe that ultimately 

the 

courts will hold that a person will not have committed the constitutional 

tort of malicious prosecution if he had probable cause to initiate the 

criminal proceedings leading to the civil action. On the other hand, 

however, depending on the facts developed, it would be possible to 

sustain a First Amendment retaliation case predicated on the institution 

of criminal proceedings even though the defendant had probable cause 

to initiate the proceedings. 

 27 
Merkle also argues that the School Defendants instituted 

criminal and administrative proceedings against her in 

retaliation for her exercise of her First Amendment rights. 

Under Mt. Healthy City School District Board of Education v. 

Doyle, 429 U.S. 274, 97 S.Ct. 568 (1977), where, as here, 

a plaintiff accuses public actors of violating her First 

Amendment rights by retaliating against her by reason of 

First Amendment protected activity, a shifting burden of 

proof analysis is required. First, the plaintiff must 

demonstrate that she has engaged in First Amendment

protected activity. Undoubtedly Merkle did so. Then the 

plaintiff must demonstrate that the defendants took an 

adverse action against her. Undoubtedly, Merkle satisfied 

her burden on this point as well for the School Defendants 

gave information to the police that resulted in her criminal 

prosecution and they suspended her as a teacher. 

But it is not enough for a plaintiff to show merely that 

she engaged in First Amendment activity and that she 

subsequently suffered an adverse action from the public 

actors who might have taken exception to that activity. 

Rather, the plaintiff must demonstrate that her 

constitutionally protected conduct was a "substantial" or 

"motivating factor" in the defendant's conduct. Id. at 287, 

97 S.Ct. at 576. Only if the plaintiff satisfies this initial 

burden does the defendant have the burden to demonstrate 

by a preponderance of the evidence that it would have 

taken the same action in the absence of the protected 

conduct. Id.3 

_________________________________________________________________ 

3. Our cases indicate that a public employee's claim for a protected 

activity, in this case free speech, should be analyzed in three steps: (1) 

was the activity protected; (2) was the protected activity a substantial 

or 

motivating factor in the alleged retaliatory action; (3) would the 

defendants have taken the same action even in the absence of the 

protected activity. See Fultz v. Dunn, 165 F.3d 215, 218 (3d Cir. 1998), 

cert. denied, 119 S.Ct. 2342 (1999); Latessa v. New Jersey Racing 

Comm'n, 113 F.3d 1313, 1319 (3d Cir. 1997); Watters v. City of 

Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995). The plaintiff has the 

burden on the first two issues and if the third is reached the defendant 

has the burden on it. I have analyzed the case as including four steps 

as the second step includes two elements: did the defendants take an 

action adverse to the public employee and, if so, was the motivation for 

the action to retaliate against the employee for the protected activity. 

 28 
In fact there is no evidence that Merkle's First 

Amendment activity was a substantial or motivating factor 

in the School Defendants' conduct in notifying the police as 

to what she did or in suspending her. In this regard, I first 

point out that it is significant that Merkle and not the 

School Defendants set the events in motion which led to the 

criminal charges and the suspension. Thus, it was Merkle 

who made the determination to take the crayons. And it 

was Merkle who decided when the crayons would be taken 

and to whom she would give them. 

Moreover, there is no direct evidence that Merkle's

protected activity prior to the crayon incident was a 

substantial or motivating factor in the School Defendants' 

actions leading to her prosecution or suspension. 

Accordingly, unless a court will permit an inference to be 

drawn that an employer's adverse action against an 

employee can be regarded as retaliatory merely because the 

employee has engaged in antagonistic First Amendment 

activity, we must affirm. But by drawing such an inference, 

we effectively will eliminate the plaintiff 's burden under Mt. 

Healthy v. Doyle to demonstrate that the constitutionally 

protected activity was a "substantial" or"motivating factor" 

in the defendants' adverse action. Instead, when an

employee engages in First Amendment activity and suffers 

an adverse employment action, we immediately will shift to 

the defendants the burden to demonstrate that they would 

have taken adverse action notwithstanding the employee's 

having engaged in First Amendment activity. 

I recognize that Merkle sets forth several reasons why she 

thinks that she can demonstrate that the School 

Defendants initiated the criminal proceedings in retaliation 

for her free speech activities, but she merely demonstrates 

that they may have had animosity toward her in part for 

reasons unrelated to her First Amendment activity in issue 

here. Br. at 30-31.4 In a sense, then, her argument is 

_________________________________________________________________ 

4. In her brief Merkle indicates that "[a] jury could give credence to the 

fact that [she] was subject to disparate treatment throughout the school 

year -- subsequent to her speech at the board meeting and continued 

advocacy before the principal." Br. at 31. In support of this contention 

she cites her deposition. See app. at 139-40. There she testified to 

matters completely discrete from the First Amendment activity 

implicated here such as that she was "written up" because of time she 

spent talking with a new student, she left work early, and she did not 

like an "absurd schedule" that the school assigned her. 

 29 
counterproductive. It is critical in considering this point to 

recognize that a section 1983 retaliation case hinges on the 

plaintiff demonstrating that her First Amendment activity 

motivated the employer's adverse action. Thus, for example, 

if an employer's motive in instituting criminal proceedings 

against a teacher was that it thought that she was a poor 

teacher it would not be liable to her in a section 1983 

retaliation case.5 

The closest that Merkle comes to demonstrating that she 

was prosecuted by reason of engaging in First Amendment 

activities is her charge "that participating teacher Nancy 

Markowich (who initially suggested the crayon donation) 

was not disciplined nor made subject to criminal 

prosecution -- bolstering the claim of an improper 

motivation." Br. at 31. But her argument here clearly fails 

as Markowich was not involved in the actual removal of the 

property and indeed was not even at the school when

Merkle removed it. Thus, Merkle cannot establish the nexus 

between the school district taking action adverse to her and 

her First Amendment activity by demonstrating that 

Markowich received disparate and more favorable 

treatment. 

I make one final point with respect to the retaliatory 

motivation issue. In Mt. Healthy v. Doyle, the Court said: 

 The constitutional principle at stake is sufficiently 

 vindicated if such an employee is placed in no worse a 

 position than if he had not engaged in the conduct. A 

 borderline or marginal candidate should not have the 

 employment question resolved against him because of 

 constitutionally protected conduct. But that same 

 candidate ought not to be able, by engaging in such 

 conduct, to prevent his employer from assessing his 

 performance record and reaching a decision not to 

 rehire on the basis of that record, simply because the 

 protected conduct makes the employer more certain of 

 the correctness of its decision. 

429 U.S. at 285-86, 97 S.Ct. at 575. More recently, in 

_________________________________________________________________ 

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

here. 

 30 
recognition of the type of concern expressed in Mt. Healthy 

v. Doyle, we indicated as follows: 

 We also make the following observation with respect 

 to performance evaluations. While it is possible that a 

 manager might make a poor evaluation to retaliate 

 against an employee for making an EEOC charge, still 

 it is important that an employer not be dissuaded from 

 making what he believes is an appropriate evaluation 

 by a reason of a fear that the evaluated employee will 

 charge that the evaluation was retaliatory. In this 

 regard, we are well aware that some employees do not 

 recognize their deficiencies and thus erroneously may 

 attribute negative evaluations to an employer's 

 prejudice. Accordingly, in a case like this in which the 

 circumstances simply cannot support an inference that 

 the evaluations were related to the EEOC charges, a 

 court should not hesitate to say so. 

Shaner v. Synthes (USA), 204 F.3d 494, 505 (3d Cir. 2000). 

The concern the Supreme Court expressed in Mt. Healthy 

v. Doyle and that we expressed in Shaner v. Synthes is 

implicated here. Why should the School Defendants have 

been intimidated by the fact that Merkle had engaged in 

First Amendment activities in their response when they 

discovered her illegally removing School District property? 

The lesson that the majority is sending to employers is 

clear: even when you find your employee violating the 

criminal law, be reluctant to bring criminal proceedings 

against her if she has engaged in First Amendment activity, 

lest you be faced with a retaliation claim. Unfortunately, 

the lesson to employees is equally clear: make sure that 

you engage in First Amendment activity in relation to your 

employment in a manner calculated to antagonize the

supervisory personnel, because if you do so you later will 

be able to charge that any action the employer takes 

adverse to you is in retaliation for that activity. Moreover, 

you should engage in antagonistic First Amendment activity 

for the further reason that if you do so you may anticipate 

that your employer will tolerate misconduct on your part 

that it would not tolerate from employees not similarly 

insulated from disciplinary proceedings. Furthermore, the 

employer will favor you with respect to promotions and the 

 31 
emoluments of your position because if it does not do so 

you may bring retaliation charges against it. 

The majority believes that my view that its opinion will 

make employers reluctant to bring criminal proceedings 

when an employee is found violating the law is 

"groundless." Maj. op. at 22. It suggests that the School 

Defendants "never had cause to find a criminal violation, 

because it knew that Merkle acted without criminal intent." 

Id. at 22. Thus, the majority believes that my dissent 

"assumes that Merkle committed a criminal violation," id., 

an assumption that the majority believes "is negated by the 

facts, the circumstances, and the law." Id . 

In fact, my position is predicated on the plain 

circumstance that the School Defendants had probable 

cause to believe that Merkle committed a crime and is not 

dependent on whether or not she in fact committed a

criminal act. There is simply no doubt but that the School 

Defendants had cause to believe that Merkle was exercising 

unlawful control over its property with an intent to deprive 

the School District of the property. Obviously, the mere fact 

that Merkle was not convicted does not mean that the 

School Defendants did not have probable cause to institute 

the criminal proceedings. After all, if the termination of the 

criminal proceedings in favor of the plaintiff, i.e., the 

defendant in the criminal proceedings, meant that the 

criminal proceedings necessarily had been instituted 

without probable cause then there would be no reason for 

the courts to require the plaintiff to prove the absence of 

probable cause in a malicious prosecution action as such 

proof would add nothing to the requirement that the

criminal proceedings be terminated in the plaintiff 's favor. 

In point of fact the majority opinion will come to have the 

exact chilling effect on employers that I anticipate and 

attorneys representing employers will read the majority 

opinion and advise employers against bringing criminal 

charges even when they have probable cause to do so. 

While some people may take umbrage at my suggestion

as they will say that an honest and conscientious employer 

always will be able to justify its actions, I live in the real 

world and I believe that employers will take action to avoid 

litigation which, after all, at best is expensive and time 

 32 
consuming. In this regard I point out that even a successful 

defendant in a retaliation action probably will not be able to 

recover its legal expenses for its defense. See EEOC v. L.B. 

Foster Co., 123 F.3d 746 (3d Cir. 1997) (Title VII action). 

Moreover, litigation is risky so that even the best

intentioned employer may seek to avoid a potential 

judgment. 

I see no Fourteenth Amendment liberty interest 

implicated here. In her brief Merkle explains that the 

School "District's statement certainly could be read in such 

a manner that would lead a reader to believe that a theft 

had, in fact, occurred." Br. at 34. Her problem with this 

point is that the School Defendants had probable cause to 

believe that such was the case. Moreover, I am unaware of 

anything in the dignified and restrained public statement of 

the School District reprinted in the appendix which was not 

true. See app. at 37-38. In fact, the School District set forth 

the objective facts and then indicated that the police were 

called to investigate, "and as a result of the investigation, 

Detective Jack Hahn filed a criminal complaint charging 

Lou Ann Merkle with theft, receiving stolen property and 

criminal attempt at theft." Thus, it quite escapes me to 

understand how the School Defendants infringed Merkle's 

liberty interest. Indeed, it is a sensational irony that the 

majority in a First Amendment case allows an action

predicated primarily on the School Defendants' truthful 

statements about a matter of public interest to go forward 

against them. Finally, Dr. Brown has qualified immunity 

because he did not violate any constitutional right of 

Merkle and surely he could have reasonably believed that 

inasmuch as she was engaged in a theft of school property 

she could be prosecuted. See In re City of Philadelphia 

Litig., 49 F.3d 945, 960-61 (3d Cir. 1995). 

I close with the following comment. While I can 

understand the majority's belief that Merkle was treated 

harshly, the precedent that it sets will come back to haunt 

this court. Its conclusions with respect to probable cause 

and infringement of Merkle's liberty interests simply are not 

justified. 

 33 
For the reasons that I state herein, I dissent from the 

majority opinion to the extent that it reverses. In all other 

respects I join its opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 34