NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 16-3499

_____________ STEPHEN SCHLEIG

v. BOROUGH OF NAZARETH; THOMAS M. TRACHTA, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; MAYOR FRED C. DAUGHTERY, JR., AND; MAYOR CARL R. STRYE, JR., IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES; DANIEL JAMES TROXELL, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; RANDALL MILLER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; PAUL KOKOLU S, JR., IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; LARRY STOU DT; FRANK MAUREK; MICHAEL KOPACH;

CYNTHIA WERNER; CHARLES DONE LLO; DANIEL CHIAVAROLI; WILLIAM MATZ; BRIAN F. REGN; JOHN N. SAMUS; LANCE E. COLONDO; CHRISTIAN AUDENRIED; CARL FISC HL, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY

Daniel James Troxell, Appellant

_______________ On Appeal from the United States District Court for the Eastern Distri ct of Pennsylvania (D.C. No. 5-15-cv-04550) District Judge: Hon. Jeffrey L. Schmehl

_______________ Submitted Under Third Circuit LAR 34.1(a) June 15, 2017 Before: JORDAN, KR AUSE, and GREENBERG, Circuit Judges. (Filed: June 15, 2017)2 _______________ OPINION *

_______________ JORDAN, Circuit Judge

. This appeal is brought by a police o fficer, Daniel James Troxell, who was employed by the Police Department of the Bo rough of Nazareth, Pe nnsylvania. A fellow officer, Stephen Schleig, accuse d Troxell of threatening him with termination, physical violence, and even death, in retaliation for Schleig’s active involvem ent in a police union. Troxell moved to dismiss Schleig’s compla int on the basis of qualified immunity, and that motion was denied by the District Court. On appeal, Troxell argues that his conduc t does not constitute retaliation and that, even if it did, the law did not clearly esta blish that his conduct was improper. Because the District Court correctly determined that Troxell’s clai m of qualified immunity could not prevail at a preliminary stag e of the case, we will affirm.
I. F ACTS 1 Schleig was employed as an officer with the Nazareth Borough Police Department. [App. at 22.] In 2009, he became involved in the local police union and

* This disposition is not an opinion of the full court an d, pursuant to I.O.P. 5.7, does not constitute binding precedent.

1 In reviewing the District Court’s reje ction of Troxell’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we “are required to accept all well-pleaded allegations in the complaint as true and to dr aw all reasonable inferences in favor of the non-moving party” – in this case Schleig. Phillips v. Cty. of Allegheny , 515 F.3d 224, 231 (3d Cir. 2008) (int ernal quotation omitted).3 participated in union advoca cy by filing grievances and reporting on purportedly unfair labor practices in the police department. [App. at 23.] In part because of his union activities, Schleig was heavily criticized by Ch ief of Police Thomas M. Trachta and other Borough officials and police officers. [App. at 24-28.] Trachta in particular retaliated against Schleig by publicly be rating him, questioning his me ntal health, reassigning him to less desirable shifts, and gi ving him undesirable tasks. [App. at 25, 28, 31.] Tensions in the Police Department furt her intensified when another officer, Frederick J. Lahovski, Jr., who was also ac tive in the labor union, brought a lawsuit against the Police Department alleging violations of constitutional rights. [App. at 32.] Trachta and other officers, including Troxe ll, suspected that Schleig was assisting Lahovski with his lawsuit by pr oviding him with copies of incident reports and other documents. [App. at 32.] In November 2013, animosity within the department increased when Troxell confronted Schleig. [App. at 32.] According to Schleig’s Complaint, Troxell stated ... that he suspected another police officer was assisting Lahovski with his case by providing La hovski with copies of incident reports involving ... Troxell, and ... Troxell intended to harm that individual once he learned his identity . Specifically, ... Troxell indicated to [Schleig] that he inte nded to get the individual fired, file criminal charges against the individual for alle ged theft, and further go after the individual physically and cause them [sic] severe harm as well as severe harm to the individual’s family. ... Tr oxell proceeded to th reaten [Schleig] and any individual found to be supportin g Lahovski by stati ng that he [i.e., Troxell] and ... Trachta were going to end the alleged culprit’s life. ... Troxell made very clear to [Schleig] that he was very serious and was in no way exaggerating or joking.4 (App. at 32-33.) As the verbal abuse proceeded, Trox ell revealed that he and Trachta had a plan to spy on those suspected of being sy mpathetic to Lahovski, including Schleig. [App. at 33.] Troxell specifically questioned whethe r Schleig had given Lahovski a copy of Troxell’s resume. [App. at 33.] Troxell then indicated that [the Borough of N azareth] ... Trachta ... and [the Borough Council] were working on going after [Schleig] becau se they suspected that [Schleig] was assisting Lahovski with his lawsuit ... . Tr oxell continued by telling [Schleig] that ... Trachta had evidence that was going to cause [Schleig] to lose his job and get arrest ed because he was suspected of being the “spy for the union.” (App. at 33.) The harassing conduct from Trachta and other officers and Borough officials continued until Schleig brought the present lawsuit. [App. at 35-40.] Schleig sued the Borough of Nazareth, its pres ent and former Mayors and th e Borough Council, Trachta, Troxell, and other Police Department officers (collectively the “Defendants”) pursuant to 42 U.S.C. § 1983. [App. at 16-21.] He alleged that the Defenda nts conspired to violate and violated his First Amendmen t rights of free speech, free association, and the ability to petition for redress of grievances. [App. at 41-51.] He also argued that the Defendants conspired to violate and violated his rights to substantive and proced ural due process and equal protection under the Fourteenth Amendment. [App. at 51-53.] After the Defendants filed a motion to dismiss, Schleig filed an Amended Complaint. [App. at 4, 16] The Defendants then submitte d a motion to dismiss the Amended Complaint, wh ich the District Court granted in part. [App. at 4.] The Court dismissed with prejudice the cl aims against some of the De fendants, including the former5 Mayor and other members of the Borough Coun cil, and it also dismissed the Fourteenth Amendment and conspiracy clai ms against all Defendants. [App. at 1-2.] It refused, however, to dismiss Schleig’s First Amendm ent retaliation claims against Troxell and some of the other Defendants, [App. at 4.] and it denied Troxell’s motion to dismiss on the basis of qualified immunity. [App. at 9.] The Court concluded that “[Schleig’s] Amended Complaint is sufficien t to plead a claim for retalia tion,” (App. at 9), and that Troxell’s qualified immunity defense failed be cause “[i]t is clearly established that a public employee has the constitutional right to speak as a citizen on matters of public concern without fear of retaliation.” (App. at 10 (citing Dougherty v. Sch. Dist. of Philadelphia , 772 F.3d 979, 987 (3d Cir. 2014)).) Trox ell then brought this timely appeal challenging the District Court’s refu sal to grant him qualified immunity.
II. D ISCUSSION 2 Qualified immunity protects government ac tors from suit “insofar as their conduct does not violate clearly established statut ory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Our analysis of qualified immun ity proceeds in two parts, whic h may be tackled in either

2 The District Court had jurisdiction u nder 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291. “[A] district court’s denial of a claim of qualified immunity, to the ex tent that it turns on an issue of law, is an appealable ‘final decision’ within th e meaning of 28 U.S.C. § 1291[.]” Mitchell v. Forsyth , 472 U.S. 511, 530 (1985) . In this case, we have jurisdiction because the question at issue is “whether the law allegedl y violated was clearly established at the time of the defendant’s actions ... the type of le gal issue immediately appealable as a final decision.” Zaloga v. Borough of Moosic , 841 F.3d 170, 174 n.3 (3 d Cir. 2016) (internal quotation marks omitted). We exercise plenary review over the District Court’s denial of the motion to dismiss. Acierno v. Cloutier , 40 F.3d 597, 609 (3d Cir. 1994).6 order based on our “sound discretion.” Pearson v. Callahan , 555 U.S. 223, 236 (2009). First, we consider “whether the alleged fact s, taken in the light most favorable to the injured party, ‘show [that] the [government official]’s c onduct violated a constitutional right[.]’” Zaloga v. Borough of Moosic , 841 F.3d 170, 174 ( 3d Cir. 2016) (first and second alterations in original) (quoting Saucier v. Katz , 533 U.S. 194, 201 (2001)). Second, we “ask whether the right was clearly es tablished ‘in light of the specific context of the case, [and] not as a broad general proposition.’” Id. (alteration in original) (quoting Saucier , 533 U.S. at 201). On appeal, Troxell argues that the District Court erred when it concluded that his remarks could constitute unconstitutional threats of retaliation. He also argues that, even if he threatened Schleig, his actions did not violate clearly established law. But based on the detailed allegations of the Amended Comp laint – allegations that we are bound to accept as true at this stage of the proc eedings – Troxell’s threats against Schleig constitute textbook retaliatory speech, and “eve ry reasonable official” in Troxell’s shoes “would have understood that what he [was] doing violate[ d]” Schleig’s right against retaliation. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton , 483 U.S. 635, 640 (1987)). A. Schleig Made a Valid Claim of First Amendment Retaliation As a general principle, it is well esta blished that “public employees do not surrender all of their First Amendment right s by reason of their employment” and may “speak[] as citizens about matte rs of public concern,” withou t retaliation or punishment. Dougherty , 772 F.3d at 987 (quoting Garcetti v Ceballos , 547 U.S. 410, 417 (2006)).7 Speech that is critical of unl awful labor practices qualifies as speech on matters of public

concern, see Davignon v. Hodgson , 524 F.3d 91, 102 (1st Ci r. 2008) (explaining that, when labor speech is intended “to publicly express criticism of management,” that fact “weigh[s] heavily” in finding that the speech in volved a matter of public concern); Clue v. Johnson , 179 F.3d 57, 61 (2d Cir. 1999) (holding that “activ ities on behalf of a union faction that necessarily entail a substantial criticism of management raise matters of public concern”), so long as it addresses “fundamental problems” reaching beyond the employee’s “day-to-day minutiae,” Watters v. City of Phila. , 55 F.3d 886, 894 (3d Cir. 1995), and does not solely discuss “mundane employment grievances,” Munroe v. Central Bucks Sch. Dist. , 805 F.3d 454, 467 (3d Cir. 2015). The publicly-minded critic is thus entitled to be free of retaliation. “To prevail on a retaliation claim, a plain tiff must prove ‘(1) that he engaged in constitutionally-protected activity ; (2) that the government responded with retaliation; and (3) that the protected activ ity caused the retaliation.’” Miller v. Mitchell , 598 F.3d 139, 147 (3d Cir. 2010) (quoting Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d Cir. 2004)). Only the s econd element is at issue in this appeal. 3

3 The parties do not, at this time, di spute that Schleig was engaged in a constitutionally-protected activity with his pro-union speech. See Pickering v. Bd. of Educ. , 391 U.S. 563, 574 (1968) (explaining that First Amendment speech protections only apply to government employees spea king out on matters of public concern); Hotel & Rest. Emps. & Bartenders Int’l Union Local 54 v. Read , 832 F.2d 263, 26 5 (3d Cir. 1987) (noting that “some union activity presumably comes within the right to associate for expressive purposes”). Nor is there any dispute, at this time, with regard to causation.8 The parties disagree as to whether Troxell’ s remarks constitute an unlawful threat of retaliation. Schleig alleges that Troxell threatened to get him fired as a result of Schleig’s continued union activities. “[T]he threat of dismissal from public employment is ... a potent means of inhibiting speech.” Pickering v. Bd. of Educ. , 391 U.S. 563, 574 (1968). Therefore, the threat of dismissal, depending on its clar ity and credibility, can form the basis for a claim of retaliation in violation of the First Amendment. See id. (noting that the “exercise of [the] right to speak on issues of public importance may not furnish the basis for ... dismissa l from public employment”). But threatening a loss of livelihood is re latively small stuff he re. According to Schleig, Troxell threatened to kill him. [App. at 32.] In the few cases in which government officials have made death threat s in response to constitutionally protected activity, no one has tried to claim that the o ffending official’s behavi or is something other than unlawful retaliation. Ev en the strained defenses in those cases have evidently not tried to stretch that far. Cf. Santiago v. Blair , 707 F.3d 984, 992 (8th Cir. 2013) (concluding that “a reasonable jury could fi nd that threats of death, issued by a correctional officer tasked w ith guarding a prisoner’s segregated cell, would chill a prisoner of ordinary firmness from engagi ng in the prison grievance process”); Van Deelen v. Johnson , 497 F.3d 1151, 1157 (10th Cir. 2 007) (holding that “allegations of physical and verbal intimidation, including a threat by a deputy sheriff to shoot him if he brought any more tax appeals, would surely su ffice under our precedents to chill a person of ordinary firmness from continuing to seek redress for (allegedly) unfair property tax assessments”). We have found no precedent that put s in doubt the unlawful retaliatory9 character of Troxell’s conduct as alleged in the Amended Complaint, and, indeed, it is obvious. See Hope v. Pelzer , 536 U.S. 730, 739 (2002) (“ For a constitutional right to be clearly established, its contours ‘must be su fficiently clear that a reasonable official would understand that what he is doing violates that ri ght. ... [I]n the light of pre-existing law the unlawfulness [of the government offici al’s conduct] must be apparent.’” (quoting Anderson , 483 U.S. at 640)). To find some cover, Troxell argues that he did not threaten Schleig with retaliation because his remarks were not actually directed at Schleig. [Opening Br. at 24.] He claims that, at the time, he “did not know that [Schleig] was the individual about whom he was speaking” and therefore he “could not ha ve formed the specific intent necessary to retaliate.” (Opening Br. at 24). But Troxell’ s recitation of the facts is inconsistent with the allegations in Schleig’s Co mplaint. Schleig alleges that Troxell directly threatened him with termination, in terms of both empl oyment and existence, because of pro-union activities. [App. at 32-33.] While Troxell began his conve rsation with Schleig by threatening an unnamed informant, he qui ckly made clear that he and the other Defendants “were working on going after [Schle ig] because they susp ected that [Schleig] was assisting Lahovski with his lawsuit ag ainst Defendants for violations of his constitutional rights.” (App. at 33.) Accepting Schleig’s account of the facts, again as we must, Troxell clearly directed his threats of retaliation at Schleig in a manner that a jury could find violated Schl eig’s constitutional rights. B. Schleig’s Actions Violate Clearly Established Law10 Troxell next argues that, even if we c onclude that he unla wfully threatened Schleig, we should nevertheless conclude that his actions did not violate clearly established law. [Opening Br. at 22

. ] This is a position that barely warrants a response. Thirty years ago, in a case involving retaliati on against a police officer no less, we held that “retaliatory discharges” were “clearly established” as unlawful. Bennis v. Gable , 823 F.2d 723, 733 (3d Cir. 1987). And, as already discussed, it should go without saying that no reasonable officer could think that it was lawful to threaten to injure or kill an employee because of that employee’s pa rticipation in a labor union. Troxell asserts, however, that words that merely threat en without subsequent concrete action, are not clearly establishe d as a violation of the First Amendment’s protection against retaliation. [Opening Br. at 25.] In advancing that proposition, Troxell relies on an erroneous interp retation of our recent decision in Zaloga v. Borough of Moosic , taking language from the op inion out of context. ( See Opening Br. at 25 (quoting Zaloga , 841 F.3d at 176 (“[O]ur cases do no t provide government officials with clear guidance as to when a government official’s own spee ch can nevertheless constitute unconstitutional retaliation.”))). In that ca se, an individual brought suit against a politician who, in retaliation for political critic ism, urged other government officials not to renew a contract with the individual’s business. Zaloga , 841 F.3d at 172-73. However, the politician in that case did not ha ve the power to take adverse action himself and did not do anything more than suggest to other officials th at they should not contract with that individual. Id. at 173

. We explained that when a public official retaliates merely by speaking out critically , “the official’s ‘own Firs t Amendment speech rights are11 implicated.’” Id. at 176 (quoting McLaughlin v. Watson , 271 F.3d 566, 573 (3d Cir. 2001)). 4 Therefore, “[i]t is not enough that de fendant speaks critically of plaintiff or even that defendant directly urges or influenc es the third party to take adverse action. Rather, defendant must ‘threaten’ or ‘coerce’ the third party to act.” Id. (quoting McLaughlin , 271 F.3d at 573)

. “[I]n the absence of a threat , coercion, or intimidation, intimating that punishment, sanction, or adverse regulatory action will follow, such speech does not adversely affect a citizen’s Fi rst Amendment rights even if defamatory.” McLaughlin , 271 F.3d at 573 (citation omitted). Zaloga plainly does not stand for the proposition th at an official is free to threaten to terminate or physically harm an employee be cause the official is speaking his mind. In contrast to the defendant in Zaloga , Troxell did not simply critic ize Schleig or suggest to others that Schleig should be punished for his activities. Instead, Troxell “intimat[ed] that punishment, sanction, or adverse ... act ion” would follow as a direct result of Schleig’s union activities. Id. (citation omitted). In particular, he made it clear that he and the other Defendants “were working on goi ng after [Schleig] because they suspected that [Schleig] was assisting La hovski with his lawsuit agai nst Defendants for violations of [Lahovski’s] constitutional rights[,]” (App. at 33) and he let Schleig know that “severe

4 McLaughlin v. Watson , another case relied upon by Troxell, is also easily distinguishable. 271 F. 3d 566 (3d Cir. 2001). In McLaughlin , a U.S. Attorney for the Eastern District of Pennsylvania was sued for advocating that agents of the Pennsylvania Attorney General’s Office be fired. Id. at 568. Critical to our decision that the U.S. Attorney was entitled to qualif ied immunity was the fact th at a U.S. Attorney had no authority to threaten or coer ce a state officer and therefor e his suggestion of retaliation was mere speech. Id. at 573-74. Here, in contrast, Tr oxell threatened to take direct retaliatory action against Schleig.12 harm” or death would follow. (App. at 32.) Such direct threats of adverse action are squarely prohibited by Supreme Court preced ent and the precedent of this Court. Therefore, Troxell is not entitled to qualified i mmunity at this stage. Whether a jury will believe Schleig’s allegati ons and any associated proof is yet to be seen.
III. C ONCLUSION For the foregoing reasons, we will affirm.