PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 1 4

- 1610

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JEFFREY J. HEFFERNAN

, Appellant

v.

CITY OF PATERSON; MAYOR JOSE TERRES; POLICE CHIEF JAMES WITTIG; POLICE DIRECTOR MICHAEL WALKER

___________ __ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 2

- 06

- cv

- 03882 ) District Judge: Honorable Kevin McNulty

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Sub mitted Under Third Circuit L

. A

. R

. 34.1(a)

December 11, 2014

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Before: VANASKIE, GREENBERG, and COWEN

, Circuit Judges2 ( F iled : January 22, 2015)

Alexandra M. Antoniou , Esq. Mark B. Frost, Esq. Ryan M. Lockman, Esq. Emily K. Murbarger , Esq. Mar k B. Frost & Associates 7 North Christopher Columbus Boulevard Pier 5 at Penn ’ s Landing, 2nd Floor Philadelphia, PA 19106 Counsel for Appellant

Victor A. Afanador, Esq. Lite, De Palma, Greenberg Two Gateway Center 12th Floor Newark, NJ 07102 Counse l for Appellee s City of Paterson & Michael Walker

Susana Cruz

- Hodge, Esq. Lite, De Palma, Greenberg Suite 1201 Two Gateway Center 12th Floor Newark, NJ 07102 Counsel for Appellee City of Paterson

Albert C. Lisbona, Esq. Dwyer, Connell & Lisbona 100 Pas saic Avenue Third Floor Fairfield, NJ 07004 Counsel for Appellee Jose Torres3 Gary Potters, Esq. Potters & Della Peitra 100 Passaic Avenue Fairfield, NJ 07004 Counsel for Appellee Jose T o rres
Anthony V. D ’ Elia, Esq. Mitzy R. Galis

- Men endez, Esq. Roosevelt Jean, Esq. Chasan, Leyner & Lamparello 300 Harmon Meadow Boulevard 6th Floor Secaucus, NJ 07094

Thomas P. Scrivo, Esq. McElroy, Deutsch, Mulvaney & Carpenter 100 Mulberry Street Three Gateway Center Newark, NJ 07102 Counsel for Appe llee James Witting

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OPINION

_____________ VANASKIE, Circuit Judge

. Appellant Jeffrey Heffernan, a police officer in Paterson, New Jersey, was demoted after being observed obtain ing a local mayoral candidate’s campaign sign at the request of his mother. He brought this action under 42 U.S.C. § 1983 against Appellees, including the City of Paterson, then

- Mayor Jose T o r r es, Police Chief James Wittig, and4 Police Administrator Michael Walker, for unconstitutional retaliation unde r the First Am endment. Heffernan now appeals from the District Court’s grant of summary judgment in favor of Appellees . Because Heffernan has failed to come forward with evidence that he actually exercised his First Am endment rights, and because claims of retaliation based

on ly on the perceived exe r cise of those rights are foreclosed by Fogarty v. Boles , 121 F.3d 886 , 888 (3d Cir. 1997)

, we will affirm the District Court’s order

.
I.

Heffernan joined the Paterson Police Department in 1985, and received various commendati ons for his police work over the next 20 years. In late 2005, he was promoted to detective and assigned to an administrative detail in the office of the Chief of Police

. The events giving rise to this case occurred in April 2006, at a time when Lawrence Spagnola, a former Paterson police chief and close friend of Heffernan’s, was pursuing a bid to unseat the then

- incumbent mayor, Jose T o rres

. Heffernan, despite personally hoping that Spagnola would win the election, was unable to vote for Spagnola based on his city of residence, did not “work[] on” the campaign, (App. 2089) , and did not consider himself

“ politically involved ” with the campaign, (App. 486)

. On April 13, 2006, Heffernan’s bedridden mother asked Heffernan to drive into downtown Paterson to pick up a large Spagnola campaign sig n , to replace a smaller one that had been stolen from her lawn

. That same day, Heffernan contacted Spagnola’s campaign manager to arrange a time and place when he could pick up a lawn sign. He then drove into Paterson

, picked up the lawn sign from a distribution point at which Spagnola supporters and campaign staff were5 present, and brought the sign to his mother’s house , where he left it for another family member to erect

.
A Paterson police officer assigned to the se curity staff of Mayor Torres

— Spagnola’s opponent

— observed Heffernan’s brief encounter wit h the Spagnola campaign
manager

. Word spread quickly , and t he next day

, one of Heffernan’s supervisors confronted him about his interaction with Spagnola’s campaign s taff . Heffernan protested that he “wasn’t politically involved[,]” and was “just picking up a sign for [his] mom.” (App. 486

– 87.) Nonetheless, Heffernan was immediately demoted to a “walking post” because of his “overt[] involvement in a p olitical elect ion.” ( App. 217 .)
In August 2006, Heffernan filed th is § 1983 action in
t he District of New Jersey

, seeking compensatory and punitive damages based on Appellees’ alleged First Amendment violations . Although the precise nature of the claims articulated i n Heffernan’s complaint w as the source of lengthy debate before the District Court, n either party appeals from th at Court ’s most recent conclusion that the complaint states claim s for (1) retaliatory demot ion based on Heffernan’s exercise of the right to f ree dom of speech, and (2) retaliatory demotion based on his exercise of the right to freedom of association

. The parties filed cross

- motions for summary judgment

. Judge Sheridan, who was originally assigned to this matter, denied both motions without per mitting the filing of briefs in opposition. For reasons that are not entirely clear, Heffernan proceeded to trial on only his free

- association claim , which resulted in a jury verdict of $105,000 in his favor

. A fter trial, however, Judge Sheridan retroact ively recused himself based6 on what he concluded was a conflict of interest and vacated the jury’s verdict

. The case was reassigned to Judge Cavanaugh

, who revisit ed the parties’ motion s for summary judgment but , like Judge Sheridan, did not allow brief ing beyond the original filings

. H e then granted summary judgment for Appellees on the free

- expression claim, but entirely failed to address the free

- association claim

— i.e., the claim on which the jury had returned a verdict in Heffernan’s favor

. On appe al, a panel of this Court concluded that the District Court had erred by granting summary judgment without permitting the parties to file briefs in opposition , and by failing to consider the viability of Heffernan’s free

- association claim. 49 2 F. App’x 22 5 (3d Cir. 2012).
On remand, the case was reassigned yet again , this time to Judge McNulty, who permitted a full round of fresh briefing on the parties’ cross

- motion s for summary judgment

. In an opinion filed on March 5, 2014, Judge McNulty concluded tha t Heffernan ha d adequately plead e d and prosecuted his free

- association claim . He nonetheless found that Heffernan had failed to produce evidence that he actually exercised his First Amendment rights, and in the alternative, Heffernan was foreclosed from s eeking compensation under § 1983 for retaliation based only on the perceived exercise of those rights . Accordingly, Judge McNulty granted summary judgment in favor of Appellees on all c ounts

. Heffernan filed a timely notice of appeal

.
II.

The District Court had jurisdiction over this case under 2 8 U.S.C. § § 1331 and 1343 . We have appellate jurisdiction7 under 28 U.S.C . § 1291

. Our review of the District Court’s order granting summary judgment is plenary. Trinity Indus., Inc. v. Chi. Bridge & Iron Co ., 735 F.3d 131, 134 (3d Cir. 2013). S ummary judgment is appropriate where the movant establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We view the evidence “‘in the light most favorable to the nonmoving party.’” Trinity Indus., Inc ., 735 F.3d at 134

– 35 (quoting Kurns v. A.W. Chesterton Inc ., 620 F.3d 392, 395 (3d Cir. 2010)).

III.
The First Amendment generally prohibits a public employer from disciplining, demoting, or firing an employee based on that employee’s exercise of First Amendment rights, in cluding speaking out on a matter of public concern or engaging in expressive conduct to the same effect

, s ee Fogarty , 121 F.3d at 888 , or associating with a particular political party, see Goodman v. Pa. Turnpike , 293 F.3d 655, 663

– 64 (3d Cir. 2002) (citin g Rutan v. Rep

. Party of Ill. , 497 U.S. 62, 75 (1990))

. 1 This appeal raises three issues: (1) whether the District Court erred by considering Appellees’ motion for summary judgment on Heffernan’s free

association claim; ( 2 ) whether the record contains evi dence upon which a jury could find that Heffernan actually

1 The primary exceptions, not relevant here, are where the government’s concern “with the eff ective and efficient fulfillment of its responsibilities to the public” outweighs the employee’s free

- speech rights, Fogarty , 121 F.3d at 888, or where “party affiliation is an appropriate requirement for the position involved,” Goodman , 293 F.3d at 663.8 exercised his free

- s peech or free

- association rights when he picked up a political sign as a favor for his mother; and ( 3 ) whether Heffernan nonetheless may obtain relief for the violation of a con stitutional right under § 1983 even where he did not exercise any First Amendment right, but his employer mistakenly believed he did.

A.

Heffernan first argues that the District Court should not have considered Appellees’ motion for summary judgment on his free

- association claim, and should instead have allowed th at claim to proceed to trial without further scrutiny. In support of this unusual proposition, he notes that

a jury already returned a verdict

— albeit one vacated on procedural grounds

— in his favor. Therefore , according to Heffernan, the free

- association claim must have had sufficient factual support to permit that verdict.

Heffernan believes we acknowledged as much in ou r previous opinion in this case. There, we order ed that on remand, the Distri ct Court, along with deciding whether Heffernan had adequately “pleaded and prosecuted” his free

association claim, “ should also consider the appropriate remedy, whether it be dismissal of the Free Association claim, reopening discovery solely on Free Asso ciation, or proceeding to trial. ” 492 F. App’x at 230. The lack of a reference to summary judgment, in Heffernan’s view, bolsters his argument that the District Court erred by considering Appellees’ motion as to the free

- association claim.

This is a mis reading of o ur opinion . On th e previous appeal, it was apparent that t he District Court had made two reversible errors. First, the Court granted summary judgment9 for Appellees on Hef

fernan’s free

- speech claim without permitting Heffernan to file a brief in op position; second, the Court’s opinion made no reference whatsoever to Heffernan’s still

- pending free

- association claim. As a result, we ordered the District Court “to permit the parties to re

- file their summary judgment motions with updated statement s of undisputed material fact and to allow opposition and reply briefing.” Id. at 229. T he portion of the opinion on which Heffernan relies simply directed the District Court to consider Appellees’ argument that Heffernan had not adequately pleaded or pr osecuted his free

- association claim

— which to that point had been overlooked in the case’s complicated procedural history. In sum, our disposition of that appeal had no bearing on Appellees ’ right to contest the sufficiency of Heffernan’s evidence on his f ree

- association claim through a motion under Rule 56 for summary judgment

. Moreover, Appellees filed a timely motion under Rule 56 even before the first trial in this case. They did not receive the benefit of a procedurally sound ruling on that motion until it was considered by the District Court in the opinion that is the subject of this appeal. We thus reject Heffernan’s argument that the District Court improperly considered the merits of Appellees’ motion for summary judgment on his free

- association claim.

B.

We next address whether the District Court properly granted summary judgment on Heffernan’s free

- speech and free

- association claims insofar as they are predicated on the allegation that he suffered retaliation for actually engaging in speech or c onduct protected under the First Amendment.10 First, with respect to his free

- speech claim, Heffernan must establish that: “ (1) [he] spoke on a matter of public concern; (2) [his] interest in that field outweighs the government ’ s concern with the effective and efficient fulfillment of its responsibilities to the public; (3) the speech caused the retaliation; and (4) the adverse employment decision would not have occurred but for the speech. ” Fogarty , 121 F.3d at 888 (citing Green v. Phila

. Housing Auth. , 1 05 F.3d 882, 885 (3d Cir. 1997) )

. Here, the only element in dispute is the first

— i.e., whether a jury could find that Heffernan actually spoke on a matter of public concern

. We note that H effernan need not prove he communicated a
message verbally

— and ind eed, the record is devoid of such evidence

—

because expressive conduct also is protected under the First Amendment. Such conduct exists where “ an intent to convey a particularized message was present, and the likelihood was great that the message would be understood by those who viewed it.” Texas v. Johnson , 491 U.S. 397, 404 (1989). “[T]his is a fact

- sensitive, context

- dependent inquiry, and

. . . the putative speaker bears the burden of proving that his or her conduct is expressive.” Tenafly Eruv Ass’n , Inc. v. Borough of Tenafly , 309 F.3d 144, 161 (3d Cir. 2002) (citations and quotation marks omitted).
Heffernan’s best argument here is that his actions had the effect of assisting Spagnola’s campaign, and indeed, Torres’s supporters construed his condu ct as an expression of direct personal support for the campaign. But, as recognized by the District Court , this is only half the picture. Heffernan repeatedly disavowed anything resembling “an intent to convey a particularized message.” For instance, at deposition, he denied “ working on ” Spagnola’s campaign, (App. 2089)

, being “ politically involved ” with the campaign,11 (App. 486), or even “supporting [Spagnola] for mayor” at all, (App. 191). In stead, in his own description of the incident to a friend , “I was pick ing up a sign for my m o ther, and that’s all I was doing. ” (App. 4 83 .) In light of this unambiguous testimony, no room exists for a jury to find that Heffernan intended to convey a political message when he picked up the sign at issue . The Distr ict Court thus properly granted summary judgment on Heffernan’s claim of retaliation based on the actual exe rcise of his free

- speech right s

.
Nor does Heffernan fare better on his free

- association claim , which requires proof “ (1) that the employee works fo r a public agency in a position that does not require a political affiliation, (2) that the employee maintained an affiliation with a political party, and (3) that the employee ’ s political affiliation was a substantial or motivating factor in the adverse e mployment decision.” Goodman , 293 F.3d at 663

– 64 (citations and quotation marks omitted). The first and third elements are plainly established on the record before us. With respect to the second element, Heffernan maintains that his close friendship wit h Spagnola, his passive desire to see Spagnola win the election, and the belief of Spagnola’s campaign manager that Heffernan was a “supporter” of the campaign, (App. 391), taken together, are sufficient to prove that he “maintained an association” with th e Spagnola campaign.

For the same reasons described above, however, we conclude that Heffernan has failed to raise a genuine dispute of material fact on this point. Heffernan himself confirmed that regardless of what others may have perceived, he did not have any affiliation with the campaign other than the cursory contact necessary for him to pick up the sign for his mother

. Consequently, the record is insufficient to allow a jury to12 return a verdict in Heffernan’s favor on his claim of retaliation base d on the actual exercise of his right to freedom of association. We will affirm the District Court’s grant of summary judgment with respect to Heffernan’s claim of retaliation based on the actual exercise of his free

- association rights

.
C.

In the alternati ve, Heffernan argues that he is entitled to proceed to trial on both claims under a “perceived

- support” theory, i.e., where the employer’s retaliation is traceable to a genuine but incorrect or unfounded belief that the employee exercise d a First Amendment right. In other words, Heffernan asks us to eliminate a traditional element of a First Amendment retaliation claim

— namely, the requirement that the plaintiff in fact exercised a First Amendment right.
That argument is squarely foreclosed by our own bind ing precedent, which h o ld s that a free

- speech retaliation claim is actionable under § 1983 only where the adverse action at issue was prompted by an employee’s actual, rather than perceived, exercise of constitutional rights. See Ambrose v. Twp. of Robins on , 303 F.3d 488, 496 (3d Cir. 2002) ; Fogarty , 121 F.3d at 89 1

. All of our sister circuits to consider th is issue in the context of a free

- speech claim have reached the same conclusion

. See Wasson v. Sonoma Cnty

. Junior Coll. , 203 F.3d 659 , 662 (9th Cir. 2000); Jones v. Collins , 132 F.3d 1048, 1054 (5th Cir. 1998); Barkoo v. Melby

, 901 F.2d 613 , 619 (7th Cir. 1990). Because Heffernan provides no convincing reason to distinguish these cases, the District Court correct ly den ied Heffernan’s alternative basi s for relief with respect to his free

- speech claim

.13 Heffernan’s last contention is that Ambrose and Fogarty
, each of which addressed free

- speech claims, leave room for us to conclude that he may seek relief under § 1983 on a perceived free

- association cla im

. By way of example, he directs us to Dye v. Office of the Racing Comm’n , 702 F.3d 286 (6th Cir. 2012), in which the Sixth Circuit a ddressed the employee

- plaintiffs ’ claim of workplace retaliation based on their supposed affiliation with the Republican P arty. There,
t he panel concluded that the employer’s mere assumption of an affiliation , whether founded or not, was sufficient for the plaintiffs’ claim to proceed. Id. at 299

– 300.
To begin with, we have no reason to believe that the holding of Dye ca n be reconciled with Ambrose and Fogarty

— and nor did the Sixth Circuit. See id. at 300 (“[W]e find the Third Circuit’s conclusion [in Ambrose ] unpersuasive.”). But beyond that, we are not convinced that Dye provides any reason to depart from our establis hed holding on this point. Most notably , t he Dye panel suggested it was “adopt[ing] the reasoning” of the First and Tenth Circuits in Welch v. Ciampa , 542 F.3d 927, 939 (1st Cir. 2008)

, and Gann v. Cline , 519 F.3d 1090, 1094 (10th Cir. 2008) , both of whic h involved adverse employment action s taken against employees who did not adopt a position on a local political issue

. Dye, 702 F.3d at 300. Like the District Court, however, w e read Welch and Gann as natural applications o f the settled First Amendment p rinciple that an employer may not disciplin e an employee based on the decision to remain politically neutral or silent

. S ee Galli v. N.J. Meadowlands Comm’n , 490 F.3d 265, 272

– 73 (3d Cir. 2007). And indeed, the emphasis on that point in Welch and Gann is , if anything, consistent with the admonition in Ambrose and Fogarty that a First Amendment retaliation14 claim under § 1983 must rest upon the actual exercise of a particular constitutional right

— whether it be the right to speak on a political issue, to ass ociate with a particular party,
or to not speak or associate with respect to political matters at all

. Heffernan, however, has not presented evidence that he was retaliated against for taking a stand of calculated neutrality. Instead, he argues that Appe llees demoted him on a factually incorrect basis. But it is not “a violation of the Constitution for a government employer to [discipline] an employee based upon substantively incorrect information,” Waters v. Churchill , 511 U.S. 661, 679 (1994), even whe re the government employer erroneously believes that the employee had engaged in protected activity under the First Amendment. To paraphrase our colleague, Judge Roth

, “a [First Amendment] claim depends on [First Amendment protected conduct], and there wa s none in this case.” Pro v. Donatucci , 81 F.3d 1283, 1292 (3d Cir. 1996) (Roth, J., dissenting). Accordingly, we will affirm the District Court’s grant of summary judgment with respect to Heffernan’s claims insofar as they are based on a “perceived

- supp ort” theory of recovery.

IV.
For the foregoing reasons, w e will affirm the District Court’s order of March 5 , 201 4 granting summary judgment in favor of Appellees

.