2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 5-13-2003 

# S hehee v . W i lmin g t on P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t 02-2601

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

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. It h as be e n a c c e pt e d for inclusion in 2003 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

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w . v i l l a no va . e du . Re c omme nde d C it at ion
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w . v i l l a no va . e du/thir dc ir c uit_2003/558* Judge Becker complet ed his term as Chief Judge on May 4, 2003.

** The Ho nora ble M yron H. B right, U nited S tates C ircuit Jud ge fo r the E ighth C ircuit, sitting by d esig natio n. NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 02-2601 JOHN SHEHEE, Appellant

v. CITY O F WILM INGTO N, a poli tica l subdivi sion of t

he State of Delaware; GR EG OR Y W ILL IAM S, indiv idually and in

his Offi cial Capacity; CL AU DE M CC RE A, ind ividua lly and in

his offic ial cap acity
APPEAL FROM THE UNI TED STATES DIST RICT COURT

FOR THE DI STRI CT OF DELAWARE D.C. CivilNo. 00-cv-00918 Distri ct Judge: The Honorable Sue L. Robinson

Argued April 8, 2003
Befo re: BECKER * , Chi ef J udge , BARRY and BRI GHT, ** Circuit Judges (Fil ed May 13, 2003)2

Victor F. Battagl ia, Esq. (Argued) Phili p B. Bartoshe sky, Esq. Bigg s & Batta glia 921 Orange Street P.O. Box 1489 Wilmington, DE 19899 Attorneys for Appell ant Rosamaria Tassone, Esq. (Argued) Aaron Goldstei n, Esq. City of Wilmingt on Law Department 800 North French St

reet, 9th Floor Wilmington, DE 19801 Attorneys for Appell ee City of Wilmington
Kathleen M. Jenni ngs, Esq. (Argued) Oberly, J ennings & Rhodunda 800 Delaware Avenue, Suite 901 P.O. Box 2054 Wilmington, DE 19899 At t or ne y f

orApp el l ee Gr eg ory Wi l l i ams
William J. Rhodunda, Jr. , Esq. ( Argued) Oberly, J ennings, Rhodunda 800 Delaware Avenue, Suite 901 P.O. Box 2054 Wilmington, DE 19899 Attorney f

or Appellee Claude McCrea3 OPI NION

__________ BA RR Y, Circuit

Judge Appellant

John Shehee fi led sui t agai nst appel lees t he City of Wilmington, Gregory Willi ams, and Claude McCrea, al leging vi olati ons of 42 U.S.C. §§ 1983, 1985, and 1986, the First Amendm ent, and state l aw. The D istri ct Court granted appellees’
m otio ns fo r sum m ary jud gm ent. Shehee v. Cit y of Wilmington , 2 05 F . S upp .2 d 26 9 ( D. De l. 20 02) . Sh ehe e file d th is tim ely a ppe al. W e ha ve ju risdi ction und er 2 8 U .S.C . § 129 1, and will rev erse in part an d affirm in part. Because we write primaril y for the parti es and the Dis tri ct Court, we need not descri be in any det ail t

he factual backgr ound of thi s case. Suffic e it to say that the cent ral questi on present ed is whether the ongoing harassment of Shehee in hi s workplace worsened aft er he te sti fied at a deposition in a c o-worker’s lawsuit against the City, and
wor se ne d t o s uc h a de gr ee th at a r ea so na bl e j ur y c oul d f in d tha t h is med ic al br ea kdo wn three months late r was caused by r etal iati on against him on the basi s of his protected speech. W e revie w th e D istrict Co urt’s gra nt of su mm ary jud gm ent de novo . Sum mary judgment under Feder al Rule of Civil Pr ocedure 56(c ) is proper “if there i s no genuine issue a s to any material f act and the moving party i s enti tled to judgment as a matter of4

law.” F ED . R. C IV . P. 5 6(c ).

I. 42 U. S. C. § 1 98 3 CL AIM F OR FI RST A MENDMENT R ETAL IAT ION The Distri ct Court c orrectly anal yzed Shehee’s § 1983 retal iati on clai m under the three- step pr ocess set

forth in Gre en v. P hilade lphia H ousin g Au thority , 105 F.3d 882 ( 3d Cir. 1997). In order t o state a prima facie case of dis crimination, a plai ntiff must fi rst show that he or

she engaged i n protected speech. Second, the plai ntif f must show that

the pro tecte d sp eec h w as a sub stan tial o r m otiv ating facto r in th e alle ged acts of re taliati on. Third, the defe ndant may defeat the plainti ff’s clai m by showing that the same acti ons
wo uld hav e be en ta ken eve n ab sen t the p rote cted con duc t. Green , 105 F.3d at 885. Neither pa rty has challeng ed the D istrict Court’s conclusion that Shehe e’s deposition tes timony in Bro wn v. Sills , Civ. No. 99-680-RRM (D. Del.), on June 14, 1999 was protected speech. Therefore , we will turn our atte ntion to the second s tep of t he Green inquiry. In ord er to sh ow that the protec ted sp eech wa s a sub stantial o r mo tivating factor in the al leged act s of ret aliation, a plai ntif f need not s how that the decisi on was motivated solely by an ti-speech anim us, or even th at the illegal animu s was the dom inant or prim ary
m otiv ation for th e reta liatio n. Suppan v. Dadonna , 203 F.3 d 22 8, 23 6 (3 d C ir. 20 00)
. This is less t

han a showing that the plaintiff ’s protected conduct was the “but for" cause1 That burden i s on the def endant; if t

he plai ntif

f set s fort

h a prima faci e case of discrim ination , the de fend ant m ay de feat it by show ing tha t the ch alleng ed ac tions w ould have been take n regardl ess of t he plai ntif

f’s pr otect ed conduct, i.e . that there is no “but for” cau satio n. Suppan , 203 F.3d at 236. 5 of the challenged actions. 1 Id. Shehee all eges that , after he gave hi s deposit ion, Will iams (and t o a less er exte nt McC rea) harassed him by reducing his responsibili ties, micro-manag ing his decisions, inst ructi ng other employee s to re port negat ive fi ndings about

his j ob performance, imposing uniquereporting requi rements on hi m, and, after he took medic al le ave, changing the offi ce locks and boxing up and st oring hi s belongi ngs. When determini ng whether a re tali atory campaign of haras sment is ac tionabl e, the questi on is whether the allege d retaliato ry co ndu ct wo uld “d eter a p erson of ord inary f irmn ess fro m e xercis ing h is First Amendm ent ri ghts. ” Suppan , 203 F.3d at 233. The District

Court found t

hat the alleged acts of harassment, except f or the changed locks and boxed-up p ersonal items,
wo uld call f or a “ye s” in ans we r to th is qu estio n. W e ag ree. The Distri ct Court a lso found, however, that no reas onable j ury could f ind a li nk between the har assment and the protec ted speec h because “the all eged harass ment that ultimately resulted in p laintiff taking med ical leave w as part of a con tinuing atm osphere of hosti lit

y.” Shehee v. Cit

y of Wilmington , 205 F. S upp .2d 2 69, 2 78 n .10 ( D. D el. 20 02)
. Inde ed, the evide nce p aints a c om pelling picture that W illiams wa s unp rofess ional, abusive, erratic, hosti le, and/or i rrational toward many employees of the Department of6

Parks and Recreation, includi ng Shehee and even McCrea, duri ng much of his te nure as Di re ct orof

t he Dep art men t . Whi l e S he he e c on ce de s t ha t t he ha ra ss men t by Wil l i ams began before the June 1999 depos iti on, he cont ends that a reasonabl e jury coul d find t hat the hara ssment intensif

ied after his deposition and intensif ied as a result

of that depo sition, in v iolation of § 1 983 . W e agre e w ith resp ect to W illiams , but no t with respect to McCrea. She hee’s testim ony that the haras sm ent inte nsified durin g the s um me r of 19 99 is supported by seve ral witnesses. Ta rrone R ichardson testified that McC rea, at W illiams’s behest, told hi m to “spy [on] and f ind incriminati ng evidence” about Shehee on June 23, 1999, shortly af

ter t he Bro wn deposition. K atrina Coo per testified that after Shehe e’s deposition, Will iams watched the buildi ng more intens ely and the atmosphere i n the offi ce became more tense. Michael Stewart testifi ed that

at a meeti ng during t

he summer of 1999 with M cCrea a nd W illiams, he wa s told that one of the ir goals wa s to “get rid of” Shehee. JoAnne Parker -Henry tes tif ied that after Shehee was deposed i n the Bro wn case, Williams t old her t

hat Shehee “wasn’ t being l oyal becaus e he was giving a deposition for Mike B rown and he had no choice but to find some reason to fire him . . . . [Williams] just b eca m e ex trem ely . . . o bse ssiv e in th is ide a tha t he h ad to go.” Although other

evidence s uggests t

hat Willi ams’s campaign to ge t ri d of Shehee be ga n b ef

or e the de po si t i on , a r ea so na bl e j ury c ou l d f i nd t ha t t he ha ra ss men t by Wil l i ams intens ifi ed during t

he summer of 1999, and that it was motivated by retal iati on on the7

basis of protected speech. There is, theref ore, a ge nuine is sue of fa ct as to whether Sh ehe e ha s sati sfied his p rim a fac ie ca se a gain st W illiam s. With respect

to the t hird step of the Green inquiry, appel lees argue that Shehee would have been haras sed even if he had not t esti fied i n the Bro wn case. However, since Shehee has pres ented evi dence that the le vel of har assment inc reased af ter he e xercis ed his F irst A m end m ent r igh ts, see discuss ion supra , we conclude t hat the re is a genuine issue o f ma terial fact a s to w hethe r he w ould have been haras sed to the sam e exte nt, absent t he protec ted activit

y. We note, moreover , that Shehee had worked under Williams without medical incide nt for severalyears. A reasonable j ury could f ind that increa sed workplace s tres s during t he summer of 1999 caused him to t ake medical l eave within t hree months of hi s deposit ion and come under psychi atri c care two months after that, and that

the intensif

ied hara ssment was, s o to speak, the fi nal st raw that broke Sh ehe e’s b ack – an d hi s he alth. We reach a diffe rent di sposition with regard to McCrea. I t was Willi ams, not M cCre a, wh o w as criticize d by M ike B row n on televisio n, pro mp ting B row n’s law suit against the City and Shehee’s depos iti on. The evidenc e is overwhelming that t he impetus for the subs eque nt hara ssm ent ca me from W illiams ; indee d, and imp ortantly , the on ly evidence t

hat McCrea even knew about Shehee’s deposition was a very tentative statemen t to that effect by Sh ehee him self. The sole m otive sugge sted for M cCrea’s alle ged parti cipation in Will iams’s har assment campaign agai nst Shehee was f ear of8

losi ng his j ob because Will iams thre atened pr ecisel y that i f McCrea did not do as he was told. Based on this record, no reasonabl e jury coul d infer that McCrea’s alle ged particip ation in W illiams ’s hara ssm ent of S hehe e w as m otivate d by She hee’s testim ony in Brown’s lawsuit . The District Court correctl y granted s umm ary judgment to McCrea on the § 198 3 cla im
.

II. LIABILIT Y OF THE CITY O F W ILMIN GTO N UN DER 42 U.S.C. § 1983 Because the Cit

y cannot be l iable for the consti tuti onal tor ts of i ts employees by virtue of respondeat

superior , in order to def eat the City’s summary judgment motion, Shehee was required to show that the al leged re tali ation was i nfli cted becaus e of the “executi on of a government’ s poli cy or cust om, whether made by its lawmakers or by those whose act s or edi cts can f airl y be said t o repres ent off icia l poli cy.” M onell v . Dep t. of Soc. Servs. , 436 U .S. 658, 694 (1978). Inter preti ng two decisi ons by a divi ded Supreme Court in Pembaur v. City of Cinc inna ti , 475 U.S. 469 ( 1986) and City o f St. Lou is v. Pra protn ik , 485 U .S. 112 (198 8), we have held that

municipal pol icy may be made either by offi cial proclamati on or by acq uies cen ce in a pe rm ane nt cu stom . And rew s v. City of Ph iladelp hia , 895 F.2d 1469, 148 0 (3d Cir. 19 90). A n offic ial policy ma ker ca n sub ject the m unicip ality to liab ility eithe r by knowingly acqui escing i n the chal lenged actions or by de legating his or her9

auth ority to th e em plo yee resp ons ible f or th ose actio ns. Id. at 1481. The City, t herefor e, can only be l iable under § 1983 for Williams’s acti ons if e ither : (1) Williams was a fi nal policym aker; (2) a final policym aker kno wingly acquiesce d in W illiams’s actions; or (3) a final poli cymaker delegated his or her authority to Williams. In determining whether Will iams was a “fi nal poli cymaker,” we turn to the applic able Delaware l aw: here, the Wilmington Cit y Charter and Code. A “final pol icym ake r” is n ot alw ays the c hiefexe cutiv e of ficer , wh ich in this c ont ext is the M ayo r. W ILMI NGTON C ITY C HARTER § 4-1 00. T he test is “ wh ich off icial has final, un review able discr etion to make a decisi on or take an acti on.” Andrews , 895 F.2d at 1481 (fi nding that police commissioner was fi nal poli cymaker for § 1983 purposes in s exual har assment lawsuit , becausehe had promulgate d department t raini ng manual regardi ng sexual harassment, establis hed an equal em ployment office to deal with discri mination issues, and pe rsonally review ed the repo rt about the plaintiffs’ com plaint). The Wilmington City Charter vest s the exec utive and administ rati ve power of the City in the “m ayor and such othe r officers, departm ents, boards an d com missions a s are authori zed or desi gnated i n this Charter .
. . . ” W ILMI NGTON C ITY C HARTER § 1- 103 (1). The Charter des ignate s a vari ety of departments to perform the executi ve and adm inistr ative wo rk o f the City , inclu din g th e D epa rtm ent o f Pa rks a nd R ecre ation
. Id. § 3-100. The Charter further pr ovides t hat the head of each depar tment “shal l exerc ise t

he powers and perf

orm the duti es vest ed in and i mposed upon the department.” Id. § 3- 101
.10

The issue i s not whether Williams had t

he authori ty to handl e employees on a dayto-day bas is, which he undoubtedl y did. Rather, t he issue is whether

Williams, as head of the Department, had the discretionary authority to institute an il legal policy of harassi ng
em plo yee s su ch a s Sh ehe e fo r ex ercis ing their Firs t Am end m ent r igh ts. H e cle arly did
. The refore , W illiams wa s a fina l policy ma ker w hose acts in v iolation of § 1 983 ma y fairly be sa id to rep resen t the C ity’s offic ial po licy. See M onell , 4 36 U .S . at 6 94. Bec au se we fi nd t ha t t he Ci ty is re sp ons ib le fo r a ctio ns take n by Wil li ams in vi ol atio n of § 19 83, we need not rea ch the other p ossible base s for the City’s liability. W e note , how ever, th at it cannot be the case that every employee with the power and abil ity to harass another employee is a f

inal de cisi on-maker on behalf of the munici palit

y whenever ret aliation by harassment i s all eged. Rather , to be a finalpolicymaker, the employee must have greate r decisi on-making authority. In the present ca se, Will iams had the f inal s ay regardi ng the hiri ng and firing of employees . If Williams coul d have fired Shehee, i t si mply does not mak e sense to arg ue that he d id not have the final policym aking au thority to harass him (a lesse r reta liato ry a ction ). The Distri ct Court e rred, theref ore, i n granti ng summary judgment to the Ci ty on t he § 1 98 3 c l ai m.

III. LIABILIT Y UN DER 42 U.S.C. §§ 1985 AND 1986 Shehee also a llege s that Williams and McCrea conspi red to i njure hi m because of11

his deposi tion testi mony in Bro wn , in vi olati on of 42 U.S.C. §§ 1985 a nd 1986. 42 U.S.C. § 1985 prohibits conspir acy by two or more pers ons to i ntimidate or threaten any witness from giving f ull, free, and trut

hful testi mony in a pending matte r or to injure suc h a w itnes s on acc oun t of h is ha vin g gi ven suc h tes tim ony . 42 U .S.C . § 1985(2). We ha ve held that the “essenti al allegations of a 1985(2) claim of witness inti midation are (1) a cons piracy be tween two or more pers ons (2) t o deter a witness by force, inti midation or

threat from att ending court

or tes tif ying fr eely i n any pending matter, which (3) r esult s in i njury t o the plainti ffs. ” Mall ey- Duf f & As soc s. , I

nc. v. Crow n Life I ns. Co. , 792 F.2 d 34 1, 35 6 (1 986 ), aff’d , 483 U.S. 143 ( 1987). Where, a s here, the issue is n ot w itness in timid ation b ut retaliatio n, the se cond pron g m ust be interpre ted to bar any conspi racy to retal iate against a witness who has attende d court or testifi ed in any pending matter, w hich results in injury to h im or he r. Eve n had we held M cCre a in on the § 1 983 retaliation claim , the ev idenc e is insuffic ient to ra ise a ge nuin e issue of fact a s to w hethe r W illiams and M cCre a agre ed to intens ify any pre-exis ting har assment becaus e of Shehee’s deposition tes timony on June of 1999. Alt

hough a co-conspi rator

need not know allof the det ails of the i llega l plan, he or sh e m ust h ave sha red in th e ge ner al co nsp irato rial o bjec tive. See Weberg v. Franks , 229 F .3d 514, 52 6 (6th C ir. 2000). Moreover, an agr eement between Willi ams and McCrea to harass Shehe e, whil e offens ive, would not viol ate § 1985; it i s the agreement to ret aliate agai nst Shehee f or exerci sing hi s Firs t Amendment rights t hat bri ngs the12

conspir acy under § 1985. There is no e vidence of such an agree ment. Shehee’s § 1985 claim wa s pro per ly d ism issed
. Violati ons of 42 U.S.C. § 1986 by defini tion depe nd on a pre-exi sti ng violat ion of § 19 85. See Clark v. Clabough , 20 F.3d 1290, 1295, 1295 n.5 (3d C ir. 1994). Because the § 1985 cl aim was correctly dis missed, t he District Court

also cor rectl y dismisse d Sh eh ee ’s § 1 98 6 c l ai m.

IV . CONCLU SI ON For th e foreg oing reaso ns, w e w ill reverse in part a nd af firm in part. W e w ill
revers e the D istrict Co urt’s gra nt of su mm ary jud gm ent to W illiams and th e City as to Shehee’s cl aims under 42 U.S. C. § 1983 and willrevers e the Court ’s concomit ant ref usal to exerc ise suppl emental j urisdi ction ove r the St ate l aw claims. We will a ffi rm the dismissa l of Shehee’ s clai ms under 42 U.S.C. §§ 1985 and 1986, and will a ffi rm the grant of summary judgment to McCrea on the § 1983 cl aim. We will remand for further proceedi ngs consis tent wit h this opinion.

TO THE CLERK OF THE CO URT: Kindly fi le the foregoi ng Opinion. /s/ Marya nne T rump Barry Circuit Judge