NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3334

_____________

VINCENT MORRIS,

Appellant

v.

THE PHILADELPHIA HOUSING AUTHORITY; PHA-TENANT SUPPORT 

SERVICES, INC.; 

CARL GREENE (individually and in his official capacity); 

ASIA CONEY (individually and in her official capacity); 

DIANE ROSENTHAL (individually and in her official capacity)

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 2-10-cv-5431)

District Judge: Honorable Michael M. Baylson

Argued June 26, 2012

____________

Before: SLOVITER, CHAGARES, and JORDAN, Circuit Judges.

(Filed: July 6, 2012)

Michael Pileggi, Esquire (Argued)

Suite 905

303 Chestnut Street

Philadelphia, PA 19106

Counsel for Appellant

Michael A. Bowman, Esquire (Argued)

Charles M. Gibbs, Esquire

Crystal M. Lacey, Esquire
2

Bowman Kavulich

1600 Market Street

25th Floor

Philadelphia, PA 19103

Counsel for Appellee Philadelphia Housing Authority

Christopher R. Booth, Jr., Esquire (Argued)

Angela Halim, Esquire

Lisa A. Sabatino, Esquire

Joseph Zaffarese, Esquire

Ahmad & Zaffarese

One South Broad Street

Suite 1810

Philadelphia, PA 19107

Counsel for Appellees Philadelphia Housing Authority Tenant Support Services 

and Asia Coney

Hollie B. Knox, Esquire (Argued)

Lauren Cates, Esquire

Clifford E. Haines, Esquire

Haines & Associates

1835 Market Street

Suite 2420

Philadelphia, PA 19103

Counsel for Appellee Carl R. Greene

Sidney R. Steinberg, Esquire (Argued)

Ronald H. Levine, Esquire

Kaitlin M. Piccolo, Esquire

Post & Schell

1600 John F. Kennedy Boulevard

Four Penn Center, 14th Floor

Philadelphia, PA 19103

Counsel for Appellee Diane Rosenthal

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OPINION 

___________

CHAGARES, Circuit Judge

Appellant Vincent Morris brought this case pursuant to 42 U.S.C. § 1983 against 

the Philadelphia Housing Authority (“PHA”), Tenant Social Services, Inc. (“TSSI”), and 

.
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several supervisors and colleagues, alleging that they retaliated against him for speech 

protected under the First Amendment. We will affirm the District Court’s grant of the 

appellees’ motions to dismiss. 

I.

Because we write solely for the parties’ benefit, we set forth only the facts 

essential to our disposition. From 1999 through 2010, Morris served as Executive 

Assistant to PHA Executive Director Carl Greene. His duties included “the supervision 

and oversight of various troubled departments at PHA including . . . TSSI.” Appendix 

(“App.”) Vol. II at 9. TSSI is a non-profit organization affiliated with PHA.

In his complaint, Morris alleged that, from 2006 through 2007, Greene required 

him to participate in various lobbying activities on behalf of PHA. Greene also 

purportedly ordered Morris to perform work for Equity PAC, a political action 

committee that was run by TSSI director, and appellee, Asia Coney. Morris resisted 

those efforts because PHA’s acceptance of funds from the United States Department of 

Housing and Urban Development (“HUD”) Moving to Work Demonstration Program

precluded it from engaging in political activities of that nature. He also objected to a 

lawsuit that PHA brought against HUD in 2007 and raised concerns about the 

governance of TSSI. Greene and Coney allegedly responded to Morris’s opposition by

either threatening his employment or ignoring his complaints altogether. Finally, Morris 

claimed that Greene and Diane Rosenthal, PHA’s Assistant Executive Director of 

Finance and Administration, ignored his reports that Coney and another employee were 

embezzling money from TSSI. 
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In April 2010, Greene demoted Morris, cut his pay by over $30,000, and 

transferred him. As a result, Morris resigned and brought this action under 42 U.S.C. 

§ 1983 alleging, inter alia, that he was constructively discharged in retaliation for his 

protected speech. The District Court granted the appellees’ motions to dismiss on the 

basis that Morris’s allegedly protected speech was made pursuant to his official duties 

and, as such, was not protected speech under Garcetti v. Ceballos, 547 U.S. 410 (2006). 

The District Court also concluded that appellees were entitled to qualified immunity 

because Morris had not alleged a plausible claim for a violation of a constitutional right. 

Morris appeals those rulings.

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II.

 

The District Court had federal question jurisdiction over this case pursuant to 28 

U.S.C. §§ 1331 and 1343. We have jurisdiction over the appeal pursuant to 28 U.S.C. 

§ 1291. We exercise plenary review of the District Court’s grant of a motion to dismiss. 

Santiago v. GMAC Mortg. Grp., Inc., 417 F.3d 384, 386 (3d Cir. 2005). “To survive a 

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal

 1

 In addition, the District Court declined to exercise supplemental jurisdiction 

over Morris’s Pennsylvania Whistleblower Law claims, held that Morris’s First 

Amendment claims arising from ten of the thirteen alleged incidents of retaliation were 

time-barred, and concluded that Morris had failed to allege adequately his other claims. 

Morris does not contest those findings on appeal. 

, 129 S. Ct. 1937, 

1949 (2009) (quotation marks omitted). “A claim has facial plausibility when the 
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plaintiff pleads factual content that allows the court to draw the reasonable inference that 

the defendant is liable for the misconduct alleged.” 

III.

Id.

We recognize that a public employee has the right, “in certain circumstances, to 

speak as a citizen addressing matters of public concern.” Garcetti, 547 U.S. at 417. To 

prevail on a First Amendment retaliation claim, a public employee must demonstrate that 

(1) he or she engaged in activity that is protected by the First Amendment, and (2) the 

protected activity was a substantial factor in retaliatory action by the employer. Gorum v. 

Sessoms, 561 F.3d 179, 184 (3d Cir. 2009). “The first factor is a question of law; the 

second factor is a question of fact.” Id.

We proceed through three steps to ascertain whether a public employee’s speech is 

protected by the First Amendment. First, as a threshold issue, we must determine 

whether the employee’s speech was made pursuant to his or her official duties, and 

therefore was unprotected by the First Amendment, or whether it was constitutionally 

protected speech made as a citizen. 

 

Garcetti, 547 U.S. at 421 (“[W]hen public employees 

make statements pursuant to their official duties, the employees are not speaking as 

citizens for First Amendment purposes, and the Constitution does not insulate their 

communications from employer discipline.”). If the speech was not made pursuant to an 

employee’s official duties, we proceed to the analysis set forth in Pickering v. Board of 

Education, 391 U.S. 563 (1968), and consider whether “the employee spoke as a citizen 

on a matter of public concern.” Garcetti, 547 U.S. at 418. If the answer to that question 

is yes, we must determine “whether the relevant government entity had an adequate 
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justification for treating the employee differently from any other member of the general 

public.” Id. In other words, we strive to “‘arrive at a balance between the interests of the 

[employee], as a citizen, in commenting upon matters of public concern and the interest 

of the State, as an employer, in promoting the efficiency of the public services it performs 

through its employees.’” Id. (quoting Pickering

The dispositive question here is whether the District Court correctly held that

Morris’s speech was made pursuant to his official job duties. While the Supreme Court 

in 

, 391 U.S. at 568).

Garcetti did not articulate a “comprehensive framework for defining the scope of an 

employee’s duties,” it did condemn reliance on “excessively broad job descriptions” and 

eschewed the use of formal job descriptions to determine whether speech was made 

pursuant to an employee’s official duties. Id. at 424-25. The Court pronounced that 

speech made pursuant to an employee’s official job duties has “no relevant analogue to 

speech by citizens who are not government employees.” Id.

In light of

at 424. 

Garcetti and our subsequent cases, we conclude that Morris’s speech 

was not entitled to First Amendment protection. We have consistently held that 

complaints up the chain of command about issues related to an employee’s workplace 

duties — for example, possible safety issues or misconduct by other employees — are

within an employee’s official duties. See, e.g., Foraker v. Chaffinch, 501 F.3d 231, 240 

(3d Cir. 2007), abrogated on other grounds by Borough of Duryea v. Guarnieri, 131 S. 

Ct. 2488 (2011) (“Price and Warren were acting within their job duties when they 

expressed their concerns up the chain of command . . . .”); Hill v. Borough of Kutztown, 

455 F.3d 225, 242 (3d Cir. 2006) (holding that a town borough manager’s reports to his 
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superiors about harassment by the town mayor were not protected speech because his 

reports were made pursuant to his managerial duties). 

In Foraker v. Chaffinch, we agreed with the District Court’s finding that three 

Delaware State Police firearms instructors were not entitled to First Amendment 

protection for their complaints to supervisors about unsafe conditions at the police firing 

range, because reporting unsafe conditions to their supervisors was part of their official 

duties as instructors at the range. 501 F.3d at 241, 243. The same can be said of Morris, 

who acknowledged that his job duties included “the supervision and oversight of various 

troubled departments at PHA including . . . TSSI.” App. Vol. II at 9. Morris’s admitted 

job duties clearly include the oversight of TSSI and rooting out of financial, as well as 

other, problems at PHA. As in Foraker, Morris complained to his direct supervisors and 

others in PHA about potential misconduct by employees at PHA and TSSI. Reporting 

instances of misconduct and advising Greene on the legality of his course of action were 

responsibilities that logically fell within Morris’s duties as Greene’s Executive Assistant

and as a supervisor at TSSI. Furthermore, Morris’s reporting of the embezzlement that 

he discovered while reviewing TSSI’s books can be considered part of his official duties 

because it related to information acquired through his employment. Gorum, 561 F.3d at

185.

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 2

 Morris’s § 1983 claims arising from acts of alleged retaliation that occurred

before October 14, 2008 are time-barred. Thus, we need be concerned only with the 

instances of speech and alleged retaliation occurring after that date, which relate to 

embezzlement and governance issues at TSSI. 

 
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Finally, because Morris complained to his superiors within PHA about matters 

arising in the scope of his employment duties, his speech did not have a “relevant 

analogue to speech by citizens who are not government employees.” Garcetti, 547 U.S. 

at 424. Morris’s speech was distinct from the speech that we have concluded passes over 

the Garcetti threshold and has an analogue to citizen speech. For instance, in Reilly v. 

City of Atlantic City, we extended First Amendment protection to truthful in-court

testimony arising out of an employee’s official job responsibilities because an employee 

speaks as a citizen in that scenario. 532 F.3d 216, 231 (3d Cir. 2008). Testimony in 

court is distinguishable from internal reporting because it is part of the official 

adjudication process. Thus, there is a “relevant analogue to speech by citizens who are 

not government employees.” Garcetti

For these reasons, we conclude that Morris did not allege instances of 

constitutionally protected speech and he cannot move forward on his First Amendment 

retaliation claim. We need not reach the question of qualified immunity.

, 547 U.S. at 424. Admittedly, as with testimony, 

there is a social good that comes from internal reporting of misconduct up the chain of 

command. The Supreme Court has decided, however, that we should not 

constitutionalize management disputes between the government and its employees.

IV.

In accordance with the foregoing, we will affirm the District Court’s dismissal of 

Morris’s amended complaint.