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FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________
No. 95-1908

___________

DONALD GREEN, Appellant

v.

PHILADELPHIA HOUSING AUTHORITY; WILLIAM BERGMAN, INTERIM CHIEF OF POLICE; DANIEL ROSENSTEIN, CAPTAIN; JOHN CRESCI, DEPUTY CHIEF, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES AS OFFICIALS OF THE PHILADELPHIA HOUSING AUTHORITY

_______________________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 94-cv-02885)

___________________

Argued June 12, 1996

Before: SCIRICA and ROTH, Circuit Judges and RESTANI, Judge , Court of International Trade*

__________________

ORDER AMENDING SLIP OPINION

__________________

IT IS HEREBY ORDERED that the slip opinion in the above

case, filed January 31, 1997, be amended as follows:

*The Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by designation.2

1. Page 13, line 8: Delete the last sentence of the paragraph and substitute in its place, "Therefore under the facts of this case any pretext is irrelevant."

2. By signaling footnote 9 at the end of the first full paragraph on page 13, line 9 (after the word "irrelevant."), and inserting the following footnote:

9. A pretextual argument is appropriate when there is a question

whether an employee was penalized because of the challenged speech or for some other reason, or when there is a question whether the employer held an "erroneous and unreasonable belief about what plaintiff said." Waters , 114 S. Ct. at 1889. The Supreme Court remanded in Waters because there was a "question whether Churchill was actually fired because of those statements, or because of something else." Id . But this is not at issue here. It is undisputed that Green was transferred because of his "statements," not for some other reason. Nor is there a dispute the Philadelphia Housing Authority Police Department reasonably believed that Green appeared at the bail hearing.

3. Renumber all subsequent footnotes.

BY THE COURT,

/s/ Anthony J. Scirica

Circuit Judge

DATED: March 13, 1997