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D ock e t 99-1613

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. e du/thir dc ir c uit_2000/93Filed 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 AppellantJeffrey 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 Scho ol District ("the District"), filed this action in the U.S. District Court for the Eastern District of Pennsylvania unde r 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, invasio n of privacy, false arrest and malicious prosecution. Th e defendants are the District, District Superintenden t Dr. Clair Brown, Jr., and Sandy Run Middle School Princ ipal Margaret Thomas (collectively, "the School Defendan ts"); and the Upper Dublin Police Department and Upper Du blin Police Detective Jack Hahn (collectively, "the Poli ce Defendants").

The district court granted summary judgment in favo r of

2all defendants as to Merkle's federal law claims. T he court

held that Merkle had failed to offer sufficient evi dence to establish a genuine issue of material fact as to th ese claims, and also that Superintendent Brown, Princip al Thomas, and Detective Hahn were entitled to qualifi ed immunity. Having entered judgment for all defendant s on these federal claims, the district court refused to exercise jurisdiction over Merkle's state law claims, and ac cordingly dismissed those claims without prejudice. Merkle ti mely appealed.1 We affirm the judgment of the district c ourt as it relates to the Police Defendants and the princip al, Margaret Thomas, but reverse as it applies to the S chool 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 h ad 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 know n 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 re quest 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. Sometim e thereafter, Superintendent Brown acceded to this re quest.

Margaret Thomas took over as principal of Sandy Run prior to the start of the 1996-97 school year. Merk le testified in her deposition in this case that short ly after Thomas assumed the principal post, she mentioned to

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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 o ver 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.

3Merkle that she had attended the May 1996 board mee ting,

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 th at some of the items in the supply closet were no long er useful and could be donated to the North Hills Community C enter, a local center serving underprivileged children. Th ese items included two cartons containing a total of 144 unop ened boxes of Crayola Crayons.2 At this time, Merkle was unaware of any official school procedures for obtai ning permission to donate art supplies, and apparently b elieved

that such decisions were within the art teacher's d iscretion. 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 doi ng. Merkle explained that Mrs. Markowich and she conclu ded

that these materials "weren't useful in the curricu lum," and that they intended to donate them to the North Hill s Community Center. Thomas asked if Merkle had

authorization to donate these materials. Merkle res ponded that she did not, and asked what Thomas suggested. Thomas replied that she did not know but that she w ould call the District's business manager to ascertain i f there was a procedure for donations of school property. T homas

directed Merkle that in the meantime she should bri ng the art materials back inside the school. Merkle prompt ly complied.

When Thomas called the business manager, he informe d her that a list of the items sought to be donated m ust be compiled and submitted to the school board for appr oval. Thomas also spoke with Superintendent Brown who, af ter

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2. The total cost of the supplies in question is in dispute. The District contends the supplies have a approximate value betw een $250 and $400. Merkle claims, however, that the supplies are worth no more than $24.

4consulting the District's attorney, instructed Thom as to call

the Upper Dublin Police Department to report the in cident. Apparently Brown, however, personally called the Ch ief of Police to tell him that Thomas would be calling to report a teacher whom she had witnessed taking District prop erty without permission, and who had admitted that she h ad done this in the past as well. Thomas informed Merk le that Brown had instructed her to call the police, and Th omas carried out Brown's instruction.

The Police Department assigned Detective Hahn to th e case. Hahn met with Thomas at Sandy Run Middle Scho ol on August 29, the day after the incident. Thomas to ld Hahn about the incident, and according to Hahn, explaine d that the District wanted "charges filed" against Merkle. Based solely on the information he learned from Thomas, H ahn swore out an affidavit of probable cause for Merkle 's arrest, as well as a criminal complaint against her. In Hah n'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 the ir meeting, that this was the basis for his determinat ion that probable cause for arrest did exist, and that he di d not take any written statement from her. In Thomas's deposit ion 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 mater ials were District property, and that she had not asked for or received permission to take these materials from th e school. Nevertheless, Detective Hahn also testified that"ta king another's property without permission" meant the sa me thing to him as "stealing."

That same day, a meeting took place between Merkle, Superintendent Brown, Principal Thomas, and the Dis trict's director of personnel. Merkle was represented at th is meeting by individuals from her teacher's union. At this meeting, Merkle was informed that she would be susp ended from her teaching position without pay pending the outcome of an investigation.

On September 2, Hahn arrested Merkle and charged he r with theft by taking pursuant to 18 Pa. Cons. Stat. Ann.

5S 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, th e School District suspended Merkle from her position, and Superintendent Brown wrote a letter to the school b oard recommending that Merkle be dismissed on the ground of "immorality."

District Justice Patricia Zaffarano held a prelimin ary hearing on October 6, 1997, and bound Merkle over f or trial. Thereafter, the incident received considerab le attention in the local newspaper. The District issu ed a public statement explaining that Merkle was observe d 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 pri ma facie case existed on these charges, and that a trial dat e was going to be set. The District refused to make addit ional comment on the matter, except to say that the distr ict attorney would contact the newspaper when he deemed appropriate.

Merkle filed a motion for habeas corpus in the Cour t of Common Pleas for Montgomery County, and on January 16, 1998, her motion was granted and the charges ag ainst her dismissed. Merkle pursued administrative remedi es regarding her employment status, and after 91 days of suspension and arbitration under the collective bar gaining

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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. S tat. Ann. S 3921(a).

4. This provision states that "[a] person is guilty of theft if he intentionally receives, retains, or disposes of mov able 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 a n attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crim e." 18 Pa. Cons. Stat. Ann. S 901(a).

6agreement, she won reinstatement with back pay. Mer kle

has since left her position at the District.

Merkle's complaint in the instant action raised num erous federal claims. Against the Police Defendants, she claims violation of her Fourth Amendment rights by arresti ng her without probable cause, and, with respect to the Po lice Department, by failing to train its detectives so a s 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 awarene ss, (2) violation of her Sixth Amendment rights by institut ing a malicious prosecution against her, and (3) violatio n of her Fourteenth Amendment rights by defaming her, thereb y 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 g ranting summary judgment in favor of the defendants is plen ary. See Torres v. McLaughlin, 163 F.3d 169, 170 (3d Cir . 1998), cert. denied, 120 S. Ct. 797 (2000). Summary judgme nt 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, an d she is entitled to every reasonable inference that can be drawn from the record. See Hamilton v. Leavy, 117 F.3d 74 2, 746 (3d Cir. 1997). We first discuss Merkle's claims ag ainst the Police Defendants, and then her claim against the S chool

Defendants.

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6. Although Merkle's complaint alleges her constitu tional claims and a section 1983 claim separately, the district court c orrectly interpreted

all of the constitutional claims as various bases suppo rting a claim arising

under section 1983.

7A.

The Police Defendants

1.

Detective Hahn

On the appeal to this court, Merkle contends that t he district court erred in granting summary judgment i n favor

of the Police Defendants on her Fourth Amendment cl aim that Detective Hahn arrested her without probable c ause. "Probable cause to arrest exists when the facts and circumstances within the arresting officer's knowle dge are sufficient in themselves to warrant a reasonable pe rson to believe that an offense has been or is being commit ted by the person to be arrested." Orsatti v. New Jersey S tate 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. Felsin g, 128 F.3d 810, 818 (3d Cir. 1997); Deary v. Three Un-Nam ed Police Officers, 746 F.2d 185, 190-92 (3d Cir. 1984 ). This is particularly true where the probable cause determin ation rests on credibility conflicts. See Sharrar , 128 F .3d at 818; Deary, 746 F.2d at 192. However, a district court m ay conclude "that probable cause exists as a matter of law if the evidence, viewed most favorably to Plaintiff, r easonably 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 Ci r. 1992) this court reiterated the well-established ru le that probable cause is defined in terms and circumstance s sufficient to warrant a prudent man in believing th at 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 reason able belief that she had committed a theft. See id. at 818; Uni ted States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 198 4), cert.

8denied, 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 "ident ified a `common sense' aspect to the issue of probable caus e." (Quoted in Glasser, 750 F.2d at 1201.) Moreover, si nce 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. S ee Gallo v. City of Philadelphia, 161 F.3d 213, 219 (3d Cir. 1998).

We, therefore, examine the evidence produced by Mer kle to determine whether she has raised a genuine issue of material fact as to whether Detective Hahn had prob able 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 198 3

actions.

The issue of whether Detective Hahn had probable ca use 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 o ccurred is corroborated by Thomas. We therefore have a situ ation where Merkle was in the process of removing art tea ching supplies which she and her colleague, Markowich,

considered of no use in their curriculum. After hav ing been informed of prior unsuccessful efforts to ascertain whether other teachers in the school had use for the unopen ed crayons, Merkle decided to turn over the supplies t o the North Hills Community Center. In loading the suppli es 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 min d, were useless and that she believed she implicitly had th e authority to dispose of them. When Thomas questione d Merkle's authority to do this, Merkle promptly retu rned the supplies to the school building. Thomas did not reg ard the

removal as a theft.

If "at the moment the arrest was made . . . the fac ts and circumstances within [the defendant's] knowledge an d of

9which [he] had reasonably trustworthy information w ere

sufficient to warrant a prudent man in believing" t hat the plaintiff had violated the law, probable cause is p resent. Hunter v. Bryant, 502 U.S. 224, 228 (1991) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). In challenging De tective Hahn's determination that probable cause to arrest existed, Merkle has the burden of showing, by a preponderanc e of the evidence, that (1) Hahn knowingly and deliberat ely, or with a reckless disregard for the truth, made false statements or omissions in his affidavit of probabl e cause that create a falsehood in applying for an arrest w arrant; and (2) such statements or omissions are material t o 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 existe d to arrest. As the district court acknowledged, however , there is conflicting testimony on the record about the accur acy 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 h im that Merkle admitted to taking school property without permission. Detective Hahn's testimony on this poin t is somewhat confused. He testified that for his purpos es, "stealing" meant the same thing to him as taking an other's property without permission. However, he also testi fied that had Thomas not used the word "stealing," he would n ot 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 be long to her, and reliable witnesses attest to this, a polic e officer who gets the report has probable cause to arrest." (Op. at 11). Specifically, the court held that these circum stances 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

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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

10Viewing the facts in the light most favorable to Me rkle,

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 qu estion therefore becomes whether a reasonable person in Ha hn's position could have concluded, based on this knowle dge, that Merkle had committed a crime. Merkle argues th at the district court's reasoning is flawed because the me re report of a witness that an individual was seen loading he r 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 evi dence an intent to deprive the District of its property. How ever, Thomas also told Hahn of Merkle's announced intenti on to give the property to the North Hills Community Cent er. Thus, Hahn possessed knowledge of a credible report from a credible eyewitness that Merkle did intend to dep rive the District of its property. Accordingly, a reasonable jury could not find that Hahn lacked knowledge of sufficient f acts to establish probable cause to arrest Merkle for the c rime of theft by taking.8

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of stolen property. Arguably, probable cause to arr est Merkle for this crime did not exist. This crime requires that the d efendant 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 belie ved that she had discretion to donate the property. Regardless, if M erkle's arrest on the charge of theft by taking was proper, we will not i nvalidate it merely because she was also improperly charged with the ad ditional 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 tha t the charge of receipt of stolen property had such effect. 8. Merkle also contends that Hahn lacked probable c ause because he failed to interview other witnesses, such as Vice P rincipal Anderson, art teacher Markowich, or Merkle herself, prior to maki ng the arrest. However, Hahn had every reason to believe a credibl e report from a school principal who witnessed the alleged crime. T his report alone sufficiently established probable cause. Hahn was n ot required to undertake an exhaustive investigation in order to v alidate the probable cause that, in his mind, already existed. See Grame nos v. Jewel Cos., Inc., 797 F.2d 432, 439 (7th Cir. 1986), cert. deni ed, 481 U.S. 1028 (1987); Morrison v. United States, 491 F.2d 344, 34 6 (8th Cir. 1974).

112.

The Police Department

In her complaint, Merkle also charged the Upper Dub lin Township Police Department with violating her Fourt h Amendment rights. Under section 1983, municipal lia bility arises only when a constitutional deprivation resul ts from official custom or policy. See Monell v. Department of Social Servs. of City of New York, 436 U.S. 658, 690-91 (1 978); Montgomery, 159 F.3d at 126-27 (citing City of Cant on, Ohio v. Harris, 489 U.S. 378, 388 (1989)). Merkle makes no argument on appeal regarding her claim that the Upp er Dublin Police Department violated her Fourth Amendm ent rights by failing to properly train Detective Hahn. It appears that Merkle has waived this claim, and therefore, t his court

need not address it. See Warren G. v. Cumberland Co unty Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (issue w aived 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 he r 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 he r prosecution even though Superintendent Brown and Principal Thomas knew that she had committed no cri me.9 Although the charges against Merkle were filed and the actual prosecution conducted by Detective Hahn, 10 both

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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 investig ating detective often represents the Commonwealth at the preliminary hear ing. Consequently, Detective Hahn acted as the prosecutor at Merkle's preliminary hearing.

12Hahn and the Chief of Police testified that the pol ice

department would not have pressed charges and pursu ed the criminal prosecution unless (1) the victim requ ested it and (2) it believed it had probable cause to do so. The Chief of Police further testified that once charges weref iled, those charges would not be withdrawn unless the victim so requested. It is undisputed that in his initial tel ephone call to the Chief of Police, Superintendent Brown said h e wanted criminal charges filed against Merkle if suf ficient evidence existed. In her initial meeting with Detec tive Hahn, Thomas informed him that Superintendent Brown wante d to press charges against Merkle. Prior to the preli minary hearing, Hahn asked Superintendent Brown if he stil l wanted to go through with the prosecution, and Dr. Brown replied that he did. Therefore, the School Defendan ts, not just the Police Defendants, are responsible for Mer kle's prosecution.

The district court analyzed Merkle's S 1983 malicio us prosecution claim based on the elements of the comm on law tort of malicious prosecution. In Pennsylvania, a plaintiff alleging common law malicious prosecution must show (1) the defendants initiated a criminal procee ding; (2) the criminal proceeding ended in the plaintiff 's f avor; (3) the proceeding was initiated without probable cause ; and (4) the defendants acted maliciously or for a purpo se other than bringing the plaintiff to justice. See Hilfirt y v. Shipman, 91 F.3d 573, 579 (3d Cir. 1996). The court held that Merkle's claim failed on the third element, re lying on its holding that Detective Hahn had probable cause to

arrest Merkle.

Although the parties do not so contend, the distric t court's analysis appears not to have been abreast o f recent developments in the law. It was at one time the law of this circuit that a plaintiff alleging a section 1983 cl aim for malicious prosecution would be required only to sho w the

elements of the common law tort. See Lee v. Mihalic h, 847 F.2d 66, 69-70 (3d Cir. 1988). However, in the afte rmath of the Supreme Court's decision in Albright v. Oliver, 510 U.S. 266 (1994), this court has acknowledged that this i s no longer the case. In Albright, the Court held that a claim of malicious prosecution under section 1983 cannot be based

13on substantive due process considerations, but inst ead

must be based on a provision of the Bill of Rights providing "an explicit textual source of constitutional prote ction." Id. at 272 (citation and internal quotation marks omitt ed).

This court has since noted that Albright"casts doub t" on prior circuit precedent adopting common law malicio us 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 c laim arose from the Fourth Amendment, i.e., whether the prosecution worked a post-indictment "seizure" on t he S 1983 plaintiff. The court concluded that the mali cious prosecution at issue did work a post-indictment sei zure 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 heari ngs over an eight-and-a-half month period. Id. Accordin gly, the Gallo court reversed the district court's grant of summary judgment for the defendants, and remanded for furth er 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 Amen dment, including the procedural component of the Due Proce ss 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 un derstand

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11. This court did not immediately recognize that A lbright changed the manner in which S 1983 malicious prosecution claims must be analyzed. For example, in Hilfirty v. Shipman, decided two-an d-a-half years after Albright, we continued to adhere to the pre-Albrigh t common law analysis of malicious prosecution claims brought under S 198 3. See 91 F.3d at

579.

14how the Sixth Amendment is implicated here. That

amendment affords individuals rights to a speedy tr ial, to an impartial jury, to know the nature and cause of a criminal accusation, to be confronted with the witn esses against them, and to effective assistance of counse l. Merkle makes no effort to relate her claim to the rights a fforded by the Sixth Amendment. She does, however, explain tha t she was deprived of liberty by reason of the prosecutio n, because she was compelled "to attend court hearings and her job [was] placed in jeopardy as a result of bei ng charged with a crime of moral turpitude." (Appellant's Br. at 25 n.9). The latter argument -- that her job was placed in j eopardy because she was charged with a crime of moral turpi tude -- seems akin to a substantive due process argument. I ndeed, no constitutional provision other than the substant ive component of the Due Process Clause even arguably a ffords the protection Merkle asserts. As noted above, howe ver, 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 prosec ution -- seems like a Fourth Amendment seizure argument simi lar to the argument considered by this court in Gallo. Merkle

has failed to assert the Fourth Amendment as the ba sis for her claim against the School Defendants, however, e ven 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 insti tuted a criminal prosecution against her and suspended he r from her teaching position to retaliate for her outspoke n statements in support of multicultural awareness. M erkle's retaliation claim is analyzed under a three step, b urdenshifting methodology. First, Merkle must demonstrat e that her speech was protected. For purposes of this appe al, the parties concede that it was. Second, Merkle must sh ow that her speech was a motivating factor in the alleged r etaliatory action. Third, the School Defendants may defeat Mer kle's claim by establishing that it would have taken the same adverse action against Merkle even in the absence o f her protected speech. See Mt. Healthy City Sch. Dist. B d. of

15Educ. 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 cou rt found that the School Defendants would have suspended Mer kle from her teaching position, even absent her speech, based on their discovery that she was putting school supp lies into

her car for which she was arrested. Merkle correctl y points out that the district court defined the alleged ret aliatory 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 Defend ants in persisting to press criminal charges against her in stead 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 occur red after this that is significant: Superintendent Brown's te lephone call to his friend, the Chief of Police, in which, despite Brown's knowledge that Merkle intended to donate th e supplies to the North Hills Community Center, Brown expressed his desire for an investigation and prose cution; 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 instituti ng criminal prosecution, against Merkle for what the p olice

considered to be an internal school district matter

, particularly in view of the lack of a school distri ct policy on the disposal of surplus supplies; Brown's affirmati on to Hahn before the preliminary hearing that Brown stil l wanted to prosecute Merkle; and Brown's recommendat ion

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 tw o hundred community residents protested Merkle's suspension and prosecution. The press release denie d that the crayons could not be used by the District. It e xplained

16that the school administration could not comment at the

meeting on the action it had taken because, the Dis trict 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 ethi cs that no comment by the parties be made in a criminal proceeding until the matter is adjudicated." The st atement, 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 disp osition of District property to the North Hills Community C enter and elsewhere. Indeed, Thomas did report to Brown t hat 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 con tract

with the District in retaliation for her activities in promoting multicultural awareness is a disputed question of f act for a jury and not a question of law for the trial court.

Merkle charges that the District embarked on its co urse of malicious prosecution because of her activities with SEED, which were protected, inter alia, by the Firs t Amendment. Merkle played a leadership role in SEED and

was a member of its academic and cultural sensitivi ty task force. SEED provided books and films to teachers to train them on diversity issues before problems arose in t he 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 b oard meeting that "Huckleberry Finn" should be"pulled,"

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12. Merkle was under the impression that the crayon s 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 ol d tempera paint, and some dry glue. The cart with usable general supplie s was rolled into the general supply closet for retention.

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

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

Our review of this entire course of events convince s 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 distric t court's order granting summary judgment for Margaret Thomas

. We differ with the district court, however, with re spect to Merkle's claims against the Upper Dublin School Dis trict and its superintendent, Dr. Clair Brown. We believe that whether these defendants' actions against Merkle we re retaliatory is, for purposes of summary judgment, influenced by the strength of Merkle's claim agains t 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 p robable

cause for Detective Hahn to make the arrest also im putes probable cause in behalf of the School Defendants t o the criminal prosecution. The action of the School Dist rict in initiating the criminal proceedings and pressing un founded criminal charges against Merkle can render the Dist rict liable for its major role in a malicious prosecutio n. Although the police may have acted on the reasonabl e belief that they had probable cause to arrest Merkle, whet her the School Defendants had probable cause to pursue Merk le'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 ar rest, 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 caus e they may otherwise have had to prosecute Merkle. Thus, i n analyzing the common law claim of malicious prosecu tion,

we must consider the facts known to the District an d its superintendent to determine whether they had probab le cause to prosecute. See Simmons v. Poltrone, No. Ci v. 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. Co unty of Lancaster, 514 A.2d 681, 683-84 (Pa. Commw. Ct. 198 6).

18On the basis of the facts as outlined above, see su pra 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 spee ch 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 emp loyer in deciding whether to take action against the employe e, the question of whether the speech was a motivating fac tor in that determination is best left to the jury. See Wa tters 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 chal lenge 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 fa cts presented to raise such questions of fact. When this arguably disfavored protected speech is coupled with (1) Bro wn'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 recommenda tion that Merkle be permanently discharged for "immorali ty" as opposed to simply pursuing administrative alternati ves such as "verbal counseling at the time of the incid ent or at most a written warning" (which the arbitrator later found would have been an appropriate, proportional respon se), room for the inference of discriminatory animus exp ands 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 pub lic charges. The arrest humiliates the teacher before h er pupils, her teaching colleagues and the public. To arrest a teacher on the "scanty grounds" adduced here, Albri ght v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992), especial ly when

19there were other less oppressive options, is shocki ng. The

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

were not of sufficient moment to warrant such drast ic and irreparable action. If, in their disposition, Merkl e exceeded her discretionary authority or even violated her pr esumptive 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 dis posing of useless or surplus supplies. Under these circumstan ces, 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 deliber ate

decision to recommend to the School Board that Merk le'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 prot ecting the unauthorized removal of supplies. A jury could reas onably find that the underlying motivation for the dischar ge lay embedded in Merkle's temerity to advocate her multicultural program to the School District. In an y event, these were questions of fact for jury determination , not questions of law for the court.

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13. Dr. Brown acknowledged that the faculty handboo k does not set forth any policy concerning the disposal of useless or surplus supplies. He testified on deposition that not every single su pply item given to a teacher requires Board approval, that some "are thr own out or

discarded."

He further testified:

Q: So your position is that when an item bec omes unusable it should be kept, and then you need board appr oval for that?

A: I didn't say that. I said when an item be comes 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 recom mend 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.

20The dissent rests entirely on the conclusion that M erkle

actually committed the crime of theft when "she unl awfully took or exercised control over [the property] with the admitted intent to deprive the School District of i t."

Concurrence and Dissent at 26 and 32. This conclusi on, it believes, is commanded by language in Gottesfeld v. Mechanics & Traders Insurance Co., 173 A.2d 763, 76 6 (Pa. Super. Ct. 1961). Significantly, the Gottesfeld cas e 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 sha res 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 turn filed 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 fo r trial. The Supreme Court held:

When the facts and circumstances . . . are c onsidered, 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 th at she took it because she thought, mistakenly perhaps, that she had the right to.

Id. at 188 (emphasis added). The court summarized i ts holding as follows: "It has been repeatedly held th at when one takes property under a claim of right, even tho ugh mistaken, larceny is not committed." Id.; accord Pe nn-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. Sle ighter, 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 "fel onious intent." Indeed, she believed that as an art teache r, she had

21discretion to discard property she believed to be u seless or

give it to a non-profit institution that might poss ibly 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 wh at she did. The School Defendants do not dispute this perc eption

of Merkle's mental state at the time she removed th e art supplies. Thus, based on the undisputed facts, Merk le

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 proce edings 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 emplo yer incurs no risk of a suit for malicious prosecution when the employer has probable cause to believe that its emp loyee had committed a criminal violation. Here, however, the employer never had cause to find a criminal violati on, because it knew that Merkle acted without criminal intent.

The dissent assumes that Merkle committed a crimina l violation, an assumption that is negated by the fac ts, the circumstances, and the law.

Finally, Merkle claims that as to the School Distri ct and Dr. Brown, their actions willfully and recklessly c aused injury to her "good name, reputation, honor and int egrity," in which she had a liberty interest under the Fourt eenth Amendment. Specifically, she points to (1) Dr. Brow n's report to the Chief of Police that Merkle had been caught loading District property into her car without auth orization, 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 Di strict, and described the District as "the party offended a gainst," but omitted mention of Merkle's explanation that sh e 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 3 3-34).

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

defamation claim with a cause of action under secti on 1983

22predicated 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 inj ury to reputation alone, Paul v. Davis, 424 U.S. 693, 701- 10 (1976); Clark v. Township of Falls, 890 F.2d 611, 6 19 (3d Cir. 1989). However, Merkle may show that her Fourt eenth 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); Ro bb v. City of Philadelphia, 733 F.2d 286, 294 (3d Cir. 1984).

The district court held that, because it had dismis sed 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 exerc ise of her First Amendment right of speech to initiate a b aseless 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 sever al of the allegedly defamatory statements identified by Merkl e 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 co urt 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 repu tation will

also be reversed and remanded.

The district court alternatively held that Superint endent Brown was entitled to qualified immunity for his ac tion. Government officials performing discretionary funct ions . . . are shielded from liability for civil damages insof ar as their conduct does not violate clearly established consti tutional rights of which a reasonable person would have know n." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1992). A d efendant is entitled to qualified immunity if reasonable off icials in the defendant's position at the relevant time "coul d 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 cl early established at the time of Brown's actions. Thomas, who first reported the removal of the supplies, never s uggested prosecution or that Merkle's conduct amounted to th eft. Similarly, Coleman, the business manager, considere d it a matter merely requiring Board approval.

An objective and reasonable assessment under the circumstances disclosed at most a mistake in judgme nt 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; Bro wn, 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 activ ities, it follows that Brown is not entitled to qualified imm unity. Viewed objectively, the act of arrest followed by t he refusal to withdraw the charges was unreasonable.

III.

Conclusion

Accordingly, the order of the district court granti ng summary judgment to the Police Defendants and to Margaret Thomas, the school principal, will be affi rmed. The order granting summary judgment to the School District and its superintendent, Dr. Clair Brown, J r., 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.

24GREENBERG, Circuit Judge, concurring and dissenting

.

I concur in and join the majority opinion to the ex tent that it affirms the order of the district court gra nting summary judgment but to the extent that it reverses , I dissent. I think that it is perfectly plain that Me rkle was the only person who did anything wrong in the matters i nvolved in this litigation. Under 18 Pa. Cons. Stat. Ann.S 3921(a) (West 1983), "[a] person is guilty of theft if he u nlawfully 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 unopen ed boxes of Crayola Crayons belonging to the School Di strict and was loading them in her car when Thomas interru pted her. Indeed, even on this appeal Merkle acknowledge s that "Prior to this incident, [she] was unaware of any o fficial procedure applicable" to the disposal of property. Br. at 5- 6. Thus, surely she should not have taken the prope rty, as she could not take her lack of knowledge of a proce dure on how to dispose of property to mean that she had a l icense to determine what property was unneeded and to whom the

district should donate it.

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

she never contends that she asked the School Defend ants for permission to donate the crayons to the North H ills Community Center before she removed them. Rather, s he only contends that no other teacher at the Sandy Ru n Middle School expressed interest in the crayons. Se e br. at 5. Thus, she could not have known whether other sch ools in the district could have made use of the crayons, perhaps in a lower grade level than the levels in the middl e school where she taught. Moreover, when Merkle removed the crayons she could not know whether the School Distr ict, if it determined to dispose of them, would have consid ered the community center as the appropriate donee. Rath er, for all she knew, the School District would have prefer red 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 returne d it to the school, and the majority makes much of this con duct. But I really do not understand why it does so. Afte r all, what else could Merkle have done? What the majority does

25not consider is that except for the fortuitous circ umstance

that Thomas observed her taking the crayons, the Sc hool Defendants never might have been aware that she too k them. Of course, Merkle already had completed the o ffense 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, th ere is not

even a scintilla of doubt but that the School Defen dants had probable cause as a matter of law to believe th at Merkle committed a crime when she removed the crayo ns which Merkle could not erase with her after-the-fac t conduct and explanations. See Gottesfeld v. Mechani cs and Traders Ins. Co., 173 A.2d 763, 766 (Pa. Super. Ct. 1961) ("Larceny, by definition, is taking or carrying awa y the property of another with intent to convert it to th e use of someone other than the owner without his consent.")

.

The majority cites Thomas v. Kessler, 5 A.2d 187, 1 88 (Pa. 1939), for the principle that "[i]t has been r epeatedly held that when one takes property under a claim of right, even though mistaken, larceny is not committed." Th at principle, however, is not applicable here as Merkl e, 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 o wner of the crayons. She only has claimed that she had the power to give away the property. Thus, the facts here, ra ther 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 i s true of the other cases the majority cites as they, too, we re concerned with the meaning of "claim of right." The refore none of the cases the majority cites can detract fr om the circumstance that the School Defendants had probabl e cause to believe that Merkle was guilty of a theft.

I recognize, of course, that the Court of Common Pl eas of Montgomery County on Merkle's habeas corpus petitio n 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

26Defendants had probable cause to believe that she

committed a theft. Similarly, the view of the major ity that

the matter should have been handled administrativel y does not change the fact that the School Defendants had probable cause to believe a crime had been committe d.1

Where, then, are we? Merkle contends that the distr ict 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 maj ority 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 emphas ize 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. T hus, even without regard for the enhanced requirements u nder Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807 (19 94), for a 42 U.S.C. S 1983 malicious prosecution action, se e Gallo v. City of Philadelphia, 161 F.3d 217, 221-22 (3d C ir. 1998), the malicious prosecution aspect of this case shoul d fail.2

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1. Considering the rather minor nature of the offen se here, I agree that an administrative disposition of the matter would h ave been appropriate. But my view no more than that of the Common Pleas C ourt or majority

can detract from the fact that the School Defendant s had probable cause

to believe that Merkle had committed a criminal off ense.

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

section 1983 malicious prosecution action a plaintiff might not be required to

establish all of the elements of the common law tor t of malicious prosecution. See Gallo, 161 F.3d at 222 n.6; but se e 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 inc ludes an analysis of whether the School Defendants had probable cause to initiate the criminal proceedings and the parties have briefed t hat issue, I, too, will analyze the case on that basis. In any event, I bel ieve that ultimately

the courts will hold that a person will not have commit ted the constitutional tort of malicious prosecution if he had probable ca use to initiate the criminal proceedings leading to the civil action. O n the other hand, however, depending on the facts developed, it would be possible to sustain a First Amendment retaliation case predicat ed on the institution of criminal proceedings even though the defendant h ad probable cause to initiate the proceedings.

27Merkle also argues that the School Defendants insti tuted

criminal and administrative proceedings against her in

retaliation for her exercise of her First Amendment rights. Under Mt. Healthy City School District Board of Edu cation 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 reas on of First Amendment protected activity, a shifting burd en of proof analysis is required. First, the plaintiff mu st 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 sat isfied her burden on this point as well for the School Def endants 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 sh e subsequently suffered an adverse action from the pu blic actors who might have taken exception to that activ ity. Rather, the plaintiff must demonstrate that her constitutionally protected conduct was a "substanti al" or "motivating factor" in the defendant's conduct. Id. at 287, 97 S.Ct. at 576. Only if the plaintiff satisfies th is initial

burden does the defendant have the burden to demons trate by a preponderance of the evidence that it would ha ve taken the same action in the absence of the protect ed

conduct. Id.3

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3. Our cases indicate that a public employee's clai m for a protected activity, in this case free speech, should be analy zed in three steps: (1) was the activity protected; (2) was the protected a ctivity a substantial

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

defendants have taken the same action even in the a bsence 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 i ncluding four steps as the second step includes two elements: did the d efendants take an action adverse to the public employee and, if so, w as the motivation for the action to retaliate against the employee for th e protected activity.

28In 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 regar d, I first point out that it is significant that Merkle and no t the

School Defendants set the events in motion which le d to the criminal charges and the suspension. Thus, it was M erkle who made the determination to take the crayons. And it was Merkle who decided when the crayons would be ta ken 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 Defe ndants' actions leading to her prosecution or suspension. Accordingly, unless a court will permit an inferenc e to be drawn that an employer's adverse action against an employee can be regarded as retaliatory merely beca use the employee has engaged in antagonistic First Amendmen t activity, we must affirm. But by drawing such an in ference, we effectively will eliminate the plaintiff 's burd en under Mt. Healthy v. Doyle to demonstrate that the constituti onally protected activity was a "substantial" or"motivatin g factor" in the defendants' adverse action. Instead, when an employee engages in First Amendment activity and su ffers an adverse employment action, we immediately will s hift to the defendants the burden to demonstrate that they would have taken adverse action notwithstanding the emplo yee'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 re taliation for her free speech activities, but she merely demo nstrates that they may have had animosity toward her in part for reasons unrelated to her First Amendment activity i n issue here. Br. at 30-31.4 In a sense, then, her argument is

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4. In her brief Merkle indicates that "[a] jury cou ld give credence to the fact that [she] was subject to disparate treatment throughout the school year -- subsequent to her speech at the board meeti ng and continued advocacy before the principal." Br. at 31. In suppo rt of this contention she cites her deposition. See app. at 139-40. There she testified to matters completely discrete from the First Amendmen t activity implicated here such as that she was "written up" b ecause of time she spent talking with a new student, she left work ear ly, and she did not like an "absurd schedule" that the school assigned her.

29counterproductive. It is critical in considering th is point to

recognize that a section 1983 retaliation case hing es on the plaintiff demonstrating that her First Amendment ac tivity motivated the employer's adverse action. Thus, for example, if an employer's motive in instituting criminal pro ceedings 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 Amend ment activities is her charge "that participating teache r Nancy Markowich (who initially suggested the crayon donat ion) was not disciplined nor made subject to criminal prosecution -- bolstering the claim of an improper motivation." Br. at 31. But her argument here clear ly 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 th e nexus between the school district taking action adverse t o 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 retaliat ory motivation issue. In Mt. Healthy v. Doyle, the Cour t said:

The constitutional principle at stake is suf ficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the c onduct. A borderline or marginal candidate should not have the employment question resolved against him bec ause of constitutionally protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assess ing his performance record and reaching a decision n ot to rehire on the basis of that record, simply b ecause the protected conduct makes the employer more ce rtain of

the correctness of its decision.

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

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

here.

30recognition 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 poss ible that a manager might make a poor evaluation to reta liate against an employee for making an EEOC charg e, still it is important that an employer not be diss uaded from making what he believes is an appropriate ev aluation by a reason of a fear that the evaluated emp loyee will charge that the evaluation was retaliatory. In this regard, we are well aware that some employee s do not recognize their deficiencies and thus errone ously may attribute negative evaluations to an employe r's prejudice. Accordingly, in a case like this in which the circumstances simply cannot support an infer ence that

the evaluations were related to the EEOC cha rges, 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. Heal thy v. Doyle and that we expressed in Shaner v. Synthes is implicated here. Why should the School Defendants h ave been intimidated by the fact that Merkle had engage d in First Amendment activities in their response when t hey discovered her illegally removing School District p roperty? The lesson that the majority is sending to employer s is clear: even when you find your employee violating t he criminal law, be reluctant to bring criminal procee dings against her if she has engaged in First Amendment a ctivity, lest you be faced with a retaliation claim. Unfortu nately, 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 lat er will be able to charge that any action the employer take s adverse to you is in retaliation for that activity. Moreover, you should engage in antagonistic First Amendment a ctivity for the further reason that if you do so you may an ticipate that your employer will tolerate misconduct on your part that it would not tolerate from employees not simil arly insulated from disciplinary proceedings. Furthermor e, the employer will favor you with respect to promotions and the

31emoluments 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 proceedi ngs 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 viol ation,

because it knew that Merkle acted without criminal intent." Id. at 22. Thus, the majority believes that my diss ent

"assumes that Merkle committed a criminal violation ," id., an assumption that the majority believes "is negate d by the facts, the circumstances, and the law." Id .

In fact, my position is predicated on the plain circumstance that the School Defendants had probabl e 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 exe rcising unlawful control over its property with an intent t o deprive the School District of the property. Obviously, the mere fact

that Merkle was not convicted does not mean that th e School Defendants did not have probable cause to in stitute the criminal proceedings. After all, if the termina tion of the criminal proceedings in favor of the plaintiff, i.e ., the defendant in the criminal proceedings, meant that t he criminal proceedings necessarily had been institute d without probable cause then there would be no reaso n for the courts to require the plaintiff to prove the ab sence 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 anticipat e and attorneys representing employers will read the majo rity opinion and advise employers against bringing crimi nal 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 e mployer 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 a nd time

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

defendant in a retaliation action probably will not be able to recover its legal expenses for its defense. See EEO C 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 rea d in such

a manner that would lead a reader to believe that a theft had, in fact, occurred." Br. at 34. Her problem wit h this point is that the School Defendants had probable ca use to believe that such was the case. Moreover, I am unaw are of anything in the dignified and restrained public sta tement of the School District reprinted in the appendix which was not true. See app. at 37-38. In fact, the School Distri ct set forth the objective facts and then indicated that the pol ice were called to investigate, "and as a result of the inve stigation, Detective Jack Hahn filed a criminal complaint char ging Lou Ann Merkle with theft, receiving stolen propert y and criminal attempt at theft." Thus, it quite escapes me to understand how the School Defendants infringed Merk le'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' trut hful statements about a matter of public interest to go forward against them. Finally, Dr. Brown has qualified immu nity 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 pr operty she could be prosecuted. See In re City of Philadel phia 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 tr eated harshly, the precedent that it sets will come back to haunt this court. Its conclusions with respect to probabl e cause and infringement of Merkle's liberty interests simp ly are not justified.

33For 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