PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-2597

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MICHAEL J. PALARDY, JR.,

Appellant

v.

TOWNSHIP OF MILLBURN;

TIMOTHY P. GORDON

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On Appeal from the United States District Court

for the District of New Jersey

(D.N.J. No. 2:15-cv-02089) 

District Judge: Hon. Susan D. Wigenton

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Argued April 24, 2018

Before: AMBRO, SCIRICA, and SILER, JR.*, Circuit Judges

 

* Hon. Eugene E. Siler, Jr., United States Court of Appeals 

for the Sixth Circuit, sitting by designation.
2

(Filed: September 28, 2018)

Dennis A. Durkin, Esquire (Argued)

Law Offices of Dennis A. Durkin

P.O. Box 88

Roseland, NJ 07068

Counsel for Appellant

Littie E. Rau, Esquire (Argued)

Ruderman Horn & Esmerado

675 Morris Avenue, Suite 100

Springfield, NJ 07081

Counsel for Appellees

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OPINION OF THE COURT

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SILER, Circuit Judge

Michael Palardy, a retired police officer of Township 

of Millburn, New Jersey, alleges that the Township’s business 

administrator, Timothy Gordon, unlawfully prevented him 

from becoming Chief of Police because Gordon opposed 

Palardy’s union membership and activity. The district court 

held Palardy’s union-related speech and association were not 

constitutionally protected and granted summary judgment in 

favor of the Township and Gordon on his 42 U.S.C. § 1983 

First Amendment retaliation claims. We agree with Palardy 

that the district court should have analyzed his speech and 

association claims separately and that his association with the 
3

union deserves constitutional protection. However, Palardy’s 

speech claim must fail because it is indistinguishable from his 

associational claim. Therefore, we affirm in part, reverse in 

part, and remand for further proceedings.

I.

Palardy worked as a police officer for the Township 

from 1988 until his retirement in 2014. During his 

employment, he was promoted three times: first to sergeant in 

1995, then to lieutenant in 1998, and finally to captain in 

2012.

Palardy was also active in the police officers’ unions—

first the Patrolmen’s Benevolent Association (PBA), and then 

the Superior Officers’ Association (SOA). In 1991 or 1992, 

Palardy served as the PBA’s sergeant-at-arms. He was also a 

union delegate from 1992 to 1995. Later in his career, 

Palardy became more involved in union leadership. He 

served as the SOA’s vice president in 2007 or 2008, and as its 

president in 2009 or 2010. During his employment, Palardy 

estimates that he participated in four or five contract 

negotiations between the unions and the Township. He also 

attended at least two disciplinary hearings for fellow officers.

Gordon was the Township’s business administrator 

during Palardy’s entire employment. Among other duties, he

was responsible for the Township’s personnel matters and 

had the authority to hire, fire, and promote Township 

employees, including police officers. According to Palardy, 

Gordon repeatedly stymied Palardy’s attempts to become 

Chief of Police. Palardy testified that other officers told him 

Gordon repeatedly made statements reflecting negatively on 

Palardy’s union activity. For instance, Gordon told officer 

Robert Brown that Palardy would never become chief 

“because of his union affiliation and being a thorn in my side 
4

for all these years.” Gino Baldani said that Gordon told him 

Palardy “wasn’t a good supervisor . . . because [he] was too 

close to [his] men and [he] would have problems separating 

[his] union business with police department work and being a 

supervisor.” And Gordon told former chief Paul 

Boegershausen that Palardy “ha[d] to learn how to separate 

[him]self from the rank and file.”

The events relevant to this case began in late 2010, 

when the Township was without a chief or a team of captains. 

By then, Palardy was the department’s most senior lieutenant 

and was next in line to become a captain. The Township’s 

custom during this time was to select its new chief from its 

roster of captains; during Gordon’s tenure, there had never 

been an exception to this rule. Because Palardy was a 

lieutenant, he was not eligible to immediately become chief. 

However, Palardy believed that he could have been promoted 

to captain for a short time and then promoted to chief. 

According to Palardy, this is precisely what happened shortly 

after his retirement: Palardy testified that, as of September 

2016, the acting chief had only been a captain for a few 

months prior to his promotion.

On this occasion, though, Gordon told Palardy and 

another lieutenant that he did not believe any of the 

lieutenants had enough experience to become chief, and that 

he was considering having the Chief of Police from nearby 

Livingston, New Jersey, serve in a dual capacity as the chief 

of both towns. That plan did not come to fruition because 

Gregory Weber, a Millburn captain who had been on inactive 

duty for health reasons, returned to active duty and was 

promoted to chief in September 2011. Weber then gave 

Palardy the title of “acting captain,” which came with 

additional responsibilities but no pay increase. Around this 

time, Palardy stepped down as union president because he 

“knew Mr. Gordon had a problem with [his] union affiliation” 
5

and he wanted “to get the stigma off . . . [himself] that [he] 

was only a union guy.” Palardy believed that, if he gave up 

his union presidency, it would increase his chances to receive 

an official promotion to captain.

In October 2011, Gordon retained a consultant to study

the police department’s “rank structure and current 

vacancies.” Gordon admitted that the study “could have” 

resulted in the rank of captain being eliminated. However, 

the consultant recommended that the department retain the 

captain rank and fill the existing vacancies in that position. 

To that end, Gordon promoted Palardy to captain in February 

2012—according to Palardy, “out of desperation.”

Chief Weber was scheduled to retire in April 2015. In 

the summer of 2013, Palardy was offered a part-time position 

as Security Coordinator for the Township’s Board of 

Education. He says he “saw the writing on the wall that he 

would never become chief,” so he decided to retire from the 

police department and accept the school board’s job offer. 

Beginning on September 1, 2013, Palardy was on terminal 

leave, and he retired effective February 1, 2014.

Palardy then filed suit against the Township and 

Gordon. His amended complaint asserted eight claims. The 

district court granted Defendants’ motion for judgment on the 

pleadings as to five of the eight counts, but allowed his state 

and federal constitutional free speech and association claims 

to proceed to discovery. Defendants then moved for 

summary judgment on Palardy’s remaining claims.

The court granted Defendants’ motion, holding 

Palardy’s union-related activity was not constitutionally 

protected. Analyzing his speech and association claims 

together, the court concluded Palardy neither acted as a 

private citizen nor spoke out on a matter of public concern, as 
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required by Garcetti v. Ceballos, 547 U.S. 410 (2006). This 

appeal followed.

II.

This Court “exercise[s] plenary review over a grant of 

summary judgment and appl[ies] the same standard the 

district court applies.” Migliaro v. Fid. Nat’l Indem. Ins. Co., 

880 F.3d 660, 664 n.6 (3d Cir. 2018) (citation omitted). 

“Summary judgment is appropriate when there is no genuine 

issue of material fact and the movant is entitled to judgment 

as a matter of law.” Id. (citing Fed. R. Civ. P. 56(a)).

The Free Speech Clause contained within the New 

Jersey Constitution “is generally interpreted as co-extensive 

with the First Amendment,” so the analysis of Palardy’s state 

free speech claim is identical to its federal counterpart. Twp. 

of Pennsawaken v. Schad, 733 A.2d 1159, 1169 (N.J. 1999).

III.

A.

To prevail on a § 1983 First Amendment retaliation 

claim, the plaintiff must prove that (1) he engaged in 

“constitutionally protected conduct,” (2) the defendant 

engaged in “retaliatory action sufficient to deter a person of 

ordinary firmness from exercising his constitutional rights,” 

and (3) “a causal link [existed] between the constitutionally 

protected conduct and the retaliatory action.” Thomas v. 

Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citation 

omitted). Here, the District Court held that Palardy’s First 

Amendment claims faltered at the first step because he failed 

to show that his association with, and speech on behalf of, the 

police officers’ union was protected conduct.
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Not all First Amendment activity is constitutionally 

protected in the public workplace. “When a citizen enters 

government service, the citizen by necessity must accept 

certain limitations on his or her freedom.” Garcetti, 547 U.S. 

at 418 (citation omitted). Insofar as workplace speech is 

concerned, the Supreme Court has long held that public 

employees only receive First Amendment protection from 

retaliation in the workplace when they speak out on a matter 

of public concern and their interest in speaking outweighs the 

government’s interest in promoting workplace efficiency and 

avoiding disruption. See Connick v. Myers, 461 U.S. 138, 

147 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 

(1968). In Garcetti, the Court added a further wrinkle to its 

workplace speech jurisprudence, holding that “when 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.” Garcetti, 

547 U.S. at 421. Following Garcetti, then, “[a] public 

employee’s statement is protected activity when (1) in 

making it, the employee spoke as a citizen, (2) the statement 

involved a matter of public concern, and (3) the government 

employer did not have ‘an adequate justification for treating 

the employee differently from any other member of the 

general public.’” Hill v. Borough of Kutztown, 455 F.3d 255, 

241-42 (3d Cir. 2006) (quoting Garcetti, 547 U.S. at 418).

Although Pickering, Connick, and Garcetti were cases 

about speech, some circuits apply the same rubric to cases 

involving the associational rights of public employees. This 

is especially true when an employee’s freedom of association 

claim “implicate[s] associational rights in essentially the same 

way and to the same degree” as his free speech claim. 

Sanguigni v. Pittsburg Bd. of Pub. Educ., 968 F.2d 393, 400 

(3d Cir. 1992) (“We hold . . . that Connick governs [the 

plaintiff’s] freedom of association claim because that claim is 
8

based on speech that does not implicate associational rights to 

any significantly greater degree than the employee speech at 

issue in Connick.”).

Palardy’s case, however, is different. He claims, in 

part, that Gordon retaliated against him simply because of his 

union membership, and not because of his advocacy on any 

particular issue. Indeed, the comments he alleges Gordon 

made to other officers—for instance, Palardy was disqualified 

from becoming chief “because of his union affiliation”—

evince hostility toward Palardy solely because of his union 

membership. Palardy’s complaint presents a pure 

associational claim, so the district court should have analyzed 

Palardy’s speech and association claims separately.

B.

Taking Palardy’s freedom of association claim, we 

must first determine whether Palardy engaged in protected 

conduct. This question, in turn, depends upon whether 

Connick and Garcetti apply to pure associational claims like 

Palardy’s. 

The circuits are split on whether Connick’s publicconcern requirement applies to associational claims, and we 

have not yet taken a position. See Sanguigni, 968 F.2d at

400. The Second, Fourth, Sixth, and Seventh Circuits apply 

the public concern requirement to public employee 

association claims. See Cobb v. Pozzi, 363 F.3d 89, 107 (2d 

Cir. 2004); Edwards v. City of Goldsboro, 178 F.3d 231, 249-

50 (4th Cir. 1999); Boals v. Gray, 775 F.2d 686, 692 (6th Cir. 

1985); Klug v. Chi. Sch. Reform Bd. of Trs., 197 F.3d 853, 

857 (7th Cir. 1999). The reasoning of courts adopting this 

position is exemplified by the Second Circuit’s decision in 

Cobb. There, the court wrote that, although in Connick “it 

was the plaintiff’s speech that was under examination, the 
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Court’s concern over the proper balance of the efficient 

functioning of the government and the First Amendment 

rights of public employees extended more generally to all 

forms of First Amendment expression, including associational 

activity.” Cobb, 363 F.3d at 104. “Because the right of 

association is derivative of the First Amendment rights of free 

speech and peaceful assembly,” the Second Circuit reasoned, 

“it would be anomalous to exempt it from Connick’s public 

concern requirement and thereby accord it an elevated status 

among First Amendment freedoms.” Id. at 105. The Sixth 

Circuit in Boals also noted that although Connick and 

Pickering were speech cases, they were in turn based upon 

freedom of association cases. Boals, 775 F.2d at 692.

On the other side of the split, the Fifth and Eleventh 

Circuits hold the public concern requirement does not apply 

to associational claims. See Boddie v. City of Columbus, 989 

F.2d 745, 749 (5th Cir. 1993); Hatcher v. Bd. of Pub. Educ. & 

Orphanage, 809 F.2d 1546, 1558 (11th Cir. 1987). The Fifth 

Circuit suggests that no additional proof of public concern is 

necessary because the union activity of public employees “is 

not solely personal and is inevitably of public concern.” 

Boddie, 989 F.2d at 750 (emphasis added). And the Eleventh 

Circuit in Hatcher fell back upon the Supreme Court’s 

decision in NAACP v. Alabama, “in which Justice Harlan 

wrote for the Court: ‘it is immaterial whether the beliefs 

sought to be advanced by association pertain to political, 

economic, religious or cultural matters . . . [,] state action

which may have the effect of curtailing the freedom to 

associate is subject to the closest scrutiny.’” Hatcher, 809 

F.2d at 1558 (quoting NAACP v. Alabama, 357 U.S 449, 460-

61 (1958)). Connick, according to the Eleventh Circuit, did 

not mark a retreat from that position. Id.

The Ninth and Tenth Circuits both take unique 

approaches. The Ninth Circuit applies the public concern 
10

requirement to “hybrid” free speech and association claims, 

but it has not decided the question for freestanding 

association claims. See Hudson v. Craven, 403 F.3d 691, 698 

(9th Cir. 2005). The Tenth Circuit generally requires the 

public concern requirement for freedom of association claims, 

see Merrifield v. Bd. of Cty. Comm’rs, 654 F.3d 1073, 1083-

84 (10th Cir. 2011), but has rejected the requirement in “the 

specific context of public-employee labor unions,” id. at 1084 

(citing Shrum v. City of Coweta, 449 F.3d 1132, 1138 (10th 

Cir. 2006)).

In this specific context—an associational claim arising 

from a public employee’s union affiliation—the minority

position followed by the Fifth Circuit is the better one. Even 

courts in the majority recognize that at least some union 

speech and activity touch upon matters of public concern. 

See, e.g., Boals, 775 F.2d at 693. It follows, then, that a 

public employee’s membership in a union might also be a 

matter of public concern. But how are courts to distinguish 

between union membership that implicates a public concern, 

and union membership that does not?

Where speech is concerned, the test is easy: “Personal 

grievances, complaints about conditions of employment, or 

expressions about other matters of personal interest . . . are 

matters more immediately concerned with the self-interest of 

the speaker as employee.” Id. (quoting Campbell v. 

Galloway, 483 F.3d 258, 267 (4th Cir. 2007)). But unionrelated speech is different than mere union membership. 

Because labor unions advocate for their employees on a wide 

range of issues, the number of possible subjects for unionrelated speech is similarly wide-ranging. Conversely, union 

membership is a dichotomy—either an employee is a union 

member, or he is not. As Seventh Circuit Judge Cudahy 

recognized, the test used to determine whether speech 
11

implicates a matter of public concern does not square with 

this dichotomy:

[T]he Pickering/Connick test is cumbersome in 

the context of a pure association claim. Under 

Connick, whether an employee’s speech touches 

on a matter of public concern is determined by 

an analysis of the “content, form, and context of

a given statement.” Connick v. Myers, 461 U.S. 

138, 147-48, (1983). This analysis is applied 

easily to the hybrid cases cited by the majority. 

In Griffin v. Thomas, for instance, an assistant 

principal alleged that her employer retaliated 

against her for filing a grievance through the 

Chicago Teachers Union. See 929 F.2d 1210, 

1210 (7th Cir. 1991). To determine whether the 

plaintiff's activity touched on a public concern, 

the court was able to review the substance of 

her grievance. See id. at 1215. But how does 

one neatly apply the “content, form, and 

context” analysis to a [pure associational] claim 

. . . ?

Balton v. City of Milwaukee, 133 F.3d 1036, 1041 (7th Cir. 

1998) (Cudahy, J., concurring).

Here, the Township does not provide any justiciable 

basis for us to separate the wheat from the chaff—to 

determine which union association is worthy of First 

Amendment protection and which is not. By holding that 

mere membership in a public union is always a matter of 

public concern, the Fifth Circuit’s approach avoids this 

problem. See Boddie, 989 F.2d at 750. Connick’s publicconcern requirement thus stands as no obstacle to Palardy’s 

associational claim.
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There is less authority regarding whether Garcetti’s 

private-citizen requirement applies to pure associational 

claims. The Second Circuit has stated that the issue is 

unclear. Lynch v. Ackley, 811 F.3d 569, 583 n.15 (2d Cir. 

2016).

As with Connick’s public-concern requirement, it does 

not make much sense to apply Garcetti’s private-citizen 

requirement to pure associational claims based on union 

membership. The touchstone of Garcetti is whether the 

public employee was “mak[ing] statements pursuant to [his] 

official duties.” Garcetti, 547 U.S. at 421. By the plain 

language of the Court’s opinion, then, Garcetti applies to 

speech, not association.

Moreover, it is hard to imagine a situation where a 

public employee’s membership in a union would be one of 

his “official duties.” Garcetti, 547 U.S. at 421. This is 

especially true in light of Janus v. American Federation of 

State, County, and Municipal Employees, 138 S. Ct. 2448, 

2460 (2018), where the Supreme Court recently held that 

public employees who choose not to join their union cannot 

be compelled to pay agency fees to offset the costs of the 

union’s collective bargaining efforts.

Labor unions, by their very nature, exist to protect the 

interests of the employees on whose behalf they bargain; job 

duties derive from the needs of the employer. And in this 

specific case, there is no evidence that Palardy’s membership 

in the police officers’ union was one of his job duties. To the 

contrary, he alleges he resigned his union presidency because 

he thought it would help further his career. For these reasons, 

we decline to apply Garcetti’s private-citizen test to Palardy’s 

freedom of association claim.
13

Having established that Connick and Garcetti do not 

bar Palardy’s associational claim, it becomes clear that his 

union membership is worthy of constitutional protection. 

Prior to those cases, the Supreme Court noted that a public 

employee possesses a First Amendment right to associate 

with a union. See Smith v. Ark. State Highway Emp., 441 

U.S. 463, 465 (1979). Palardy was a union member and 

leader, and he brought forth at least some evidence suggesting 

Gordon harbored animosity toward him because of his union 

affiliation. The district court therefore erred by holding as a 

matter of law that Palardy did not establish the first element 

of his First Amendment retaliation claim—constitutionallyprotected conduct.

Because it found Palardy could not prevail on the first 

element, the court did not consider whether he created a 

genuine issue of material fact on the other two elements of his 

associational claim—whether Defendants engaged in 

“retaliatory action sufficient to deter a person of ordinary 

firmness from exercising his constitutional rights,” and 

whether “a causal link [existed] between the constitutionally 

protected conduct and the retaliatory action.” Thomas, 463 

F.3d at 296 (citation omitted). Defendants do not address 

these elements on appeal, and we do not believe the evidence 

is so one-sided as to require summary judgment in their favor. 

Thus, we remand to the district court to consider the 

remaining two elements of Palardy’s associational claim.

C.

Compared to his associational claim, the analysis of 

Palardy’s speech claim is much more straightforward. As 

noted earlier, we have dismissed associational claims that we 

viewed as co-extensive with the plaintiff’s free speech claim. 

See Sanguigni, 968 F.2d at 400. Here, the opposite is true—

Palardy’s free speech claim is co-extensive with his 
14

associational claim. He does not allege that Gordon retaliated 

against him because of his speech or advocacy on any 

particular issue. He simply claims that Gordon prevented him 

from becoming chief because he was a union man. Because 

Palardy did not adequately plead a freestanding speech claim, 

Defendants are entitled to summary judgment on that claim.

IV.

For the foregoing reasons, we affirm in part, reverse in 

part, and remand for further proceedings consistent with this 

opinion.