NOT PRECEDENTIAL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 o fficial 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 - 54 31 ) Distric t 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, Esquire2 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

____________ OPINION

___________ CHAGARES, Circuit Judge Appellant Vincent Morr is brou ght this case pursuant to 42 U.S.C. § 1983 against the Philadelphia Housing Authority (“PHA”) , Tenant Social Services, Inc. (“TSSI”) , and .3 several supervisors and colleagues, alleging that they retaliated against him for speech protected under the Fi rst Amendment. We will affirm the District Court’s grant of the appellees’ motions to dismiss.
I.
Because w e write solely for th e parties’ benefit, we set forth only the facts essential to our disposition. From 1999 through 2010, Morris served as Exec utive 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 w as run by TSSI director , and appellee, Asia Coney. Morris resisted those efforts because PHA ’s acceptance of funds from the United States Department of
Hous ing and Urban Development (“HUD”) Moving to Work Demonstration Program precluded it from engaging i n 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

. Green e and Coney allegedly responde d to Morris’s opposition by either threatening his employment o r ignoring his complaints altogether

. Finally, Morris claim ed 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.4 In Apri l 2010, Green e demoted Morris, cut his pay by over $30,000, and transferred him. As a result, Morris resigned and brough t this action under 42 U.S.C. § 1983 alleging , inter alia , that he was constructively discharged in retaliation for his protected speec h. 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 Dis trict Court also concluded that appellee s were entitled to qualified immunity because Morris had not alleged a plausible claim for a violation of a constituti onal right. Morris appeals those ruling s
. 1
II. The District Court had federal question jurisdi ction over this case pursuant to 28 U.S.C. §§ 13 31 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 factua l 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 reta liation 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 o mitted)

. “A claim has facial plausibility when the5 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 righ t, “ 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 p ro tected 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 f act.” Id. We proceed through three steps to ascertain whether a public e mployee’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 o fficial 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 speak ing as citizens for First Amendment purposes, and the Constitution does not insulate their communicati ons 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 , 39 1 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 adequate6 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 cor rectly 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
pursuan t 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 compla ints 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 C ir. 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 con cerns 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 his7 superiors about harassment by the town m ayor were not protected speech because his report s w ere made pursuant to his managerial duties )

. In Foraker v. Chaffinch , we agreed w ith 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 conditio ns to their supervisors was part of the ir 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 P HA including

. . . TSSI.” App

. Vol. II at 9. Morris’s admitted job duties clearly inclu de 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. R eporting instances of misconduct and advising Greene on the legality of his course of action w ere 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 relate d to information acquired through his employment

. Gorum , 561 F.3d at
185

. 2

2 Morris’s § 1983 claims arising from acts of alleged retaliation that occurr ed 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.8 Finally , because Morris complained to his superiors within PHA about matters arising in the scope of his employment duties , his speech d id not have a “relevant analogue to speech by citizens who are not government employees.” Garcetti , 547 U.S.

a t 424

. Morris’s speech wa s 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

- c ourt testimony arising out of an employee’s official job responsibilities because an employee speaks as a citize n 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 th e se reasons, we conclude that Morris did not alleg e instances of constitutionally pr otected 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 Distri ct Court’s dismissal of Morris’ s amended complaint

.