Filed: Jan. 31, 1997
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1997 Decisions States Court of Appeals for the Third Circuit 1-31-1997 Green v. Phila Housing Auth Precedential or Non-Precedential: Docket 95-1908 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997 Recommended Citation "Green v. Phila Housing Auth" (1997). 1997 Decisions. Paper 24. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/24 This decision is brought to you for free and open access by the Opinions of the United S
Summary: Opinions of the United 1997 Decisions States Court of Appeals for the Third Circuit 1-31-1997 Green v. Phila Housing Auth Precedential or Non-Precedential: Docket 95-1908 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997 Recommended Citation "Green v. Phila Housing Auth" (1997). 1997 Decisions. Paper 24. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/24 This decision is brought to you for free and open access by the Opinions of the United St..
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Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
1-31-1997
Green v. Phila Housing Auth
Precedential or Non-Precedential:
Docket 95-1908
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997
Recommended Citation
"Green v. Phila Housing Auth" (1997). 1997 Decisions. Paper 24.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/24
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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*
(Filed January 31, 1997)
DAVID RUDOVSKY, ESQUIRE (ARGUED)
Kairys, Rudovsky, Kalman,
Epstein & Messing
924 Cherry Street, 5th Floor
Philadelphia, Pennsylvania 19107
Attorney for Appellant
*The Honorable Jane A. Restani, Judge, United States Court of
International Trade, sitting by designation.
1
M. KEVIN HUBBARD, ESQUIRE (ARGUED)
Philadelphia Housing Authority
2012 Chestnut Street
Philadelphia, Pennsylvania 19103
Attorney for Appellees
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
The Philadelphia Housing Authority transferred one of
its police officers from special drug enforcement duty to regular
patrol duty after his appearance at a bail hearing as a character
witness for a reputed organized crime associate. The officer
contends his transfer violated his free speech and association
rights. At trial, after the close of all evidence, the district
court granted defendants judgment as a matter of law under Fed.
R. Civ. P. 50. We will affirm.1
I. Background
The plaintiff, Donald Green, has been employed as a
police officer for the Philadelphia Housing Authority Police
Department since November, 1991. In February, 1994, he was
assigned to the Housing Authority Police Department's Drug
Elimination Task Force ("DETF"). The DETF is a special unit that
works together with other law enforcement agencies to combat
illegal drug activity on Philadelphia Housing Authority property.
1. We have jurisdiction under 28 U.S.C. § 1291. Our standard of
review is plenary. See Watters v. City of Philadelphia, 55 F.3d
886, 891 (3d Cir. 1995).
2
Several weeks after his assignment to the DETF, Green
received a telephone call from Norman Keller, a friend of over
twenty years, asking him to testify as a character witness on
behalf of his son, Herbert Keller, at a bail hearing in federal
court. Pursuant to Housing Authority Police Department
regulations, Green made a written request to his immediate
supervisor for permission to testify. Green received approval,
provided that he testify during his lunch hour and in civilian
clothing.
On March 23, 1994, Green appeared at the bail hearing,
and Keller's attorney introduced him by name and occupation. The
magistrate judge then proceeded to read the charges pending
against Keller, which included organized crime activity in
connection with the Stanfa crime organization. Green, who until
that time was unaware of the organized crime charges, told Keller
he could not be associated with the case and left the hearing
without testifying.
Later that day, an unidentified law enforcement officer
told the DETF Captain, defendant Daniel Rosenstein, that Green
had appeared as a character witness for a member of the Stanfa
crime organization. Rosenstein ordered Green removed from
"street" work and told him there would be an investigation into
his possible ties with organized crime. Rosenstein then sent a
memorandum to the Housing Authority Police Department's Deputy
Chief of Police, defendant John Cresci, recommending such an
investigation and requesting Green's temporary transfer to
regular patrol duty pending its outcome.
3
Subsequently, Cresci discussed the matter with the
Housing Authority Police Department's Acting Chief of Police,
defendant William Bergman. They decided a departmental
investigation was unnecessary because it would duplicate the
ongoing federal investigation of the Stanfa crime organization,
and also because they did not believe Green was affiliated with
organized crime. But Cresci and Bergman agreed with Rosenstein
that Green should be transferred. On March 31, 1994, Green was
formally transferred from the DETF to regular patrol duty.
Green's duties changed as a result of his transfer. As
a DETF officer, Green participated in drug raids, made drug-
related arrests, and was generally responsible for enforcing the
drug laws. After the transfer to regular patrol duty, Green was
principally assigned to work out of a building's security booth.
Green's salary was not reduced, although he claims his
opportunities to work overtime (and consequently to earn overtime
pay) decreased.
Green contends his transfer constituted unlawful
retaliation for protected First Amendment activity. He brought
this action against the Philadelphia Housing Authority,
Rosenstein, Cresci and Bergman under: 42 U.S.C. § 1983 for
violation of his First Amendment rights to freedom of speech and
association; 42 U.S.C. § 1985(2) for violation of his right to be
free from retaliation for his appearance as a witness in federal
court; and the Pennsylvania Constitution for deprivation of
reputation without due process of law.
4
At trial, defendants Bergman and Cresci testified they
had no information or even suspicion Green was involved with
organized crime,2 but that his transfer was nonetheless
justified. They explained Green was transferred "in case there
was anything where [the Housing Authority Police Department]
might be embarrassed . . ." and because it "was right for the
organization." (J.A. at 122, 164.) In their brief on appeal,
defendants maintain they transferred Green out of their concern
that the appearance of his ties to organized crime would "bring[]
. . . discredit upon the image of the [Housing Authority Police
Department], [and] endanger[] the plaintiff." (Appellee's Br. at
10.)3
At the close of evidence at trial, the district court
granted defendants' Rule 50 motion for judgment as a matter of
law on all claims. Green brought this appeal. In reviewing the
district court's judgment, we must determine whether "viewing all
the evidence which has been tendered and should have been
admitted in the light most favorable to the party opposing the
motion, no jury could decide in that party's favor." Watters v.
City of Philadelphia, 55 F.3d 886, 891 (3d Cir. 1995) (quoting
2. Bergman also testified that, if he had any such suspicion, he
would have fired Green instead of merely transferring him.
3. As far as we know, Green has not been reinstated to DETF
duty. At trial, Cresci and Bergman testified that Green may be
reinstated after the close of the Stanfa trial. Rosenstein
testified somewhat differently, stating that Green's
reinstatement turned on whether the Housing Authority Police
Department found him innocent of wrongdoing. Green testified
that Cresci told him his transfer was permanent.
5
Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir.
1993)).
II. Discussion
A. Section 1983 (First Amendment)
On appeal Green contends his First Amendment right to
free speech was violated because he was transferred in
retaliation for his appearance as a character witness at Keller's
bail hearing. A public employee's claim of retaliation for
engaging in a protected activity is analyzed under a three-step
process. See Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir.
1996); Watters v. City of Philadelphia,
55 F.3d 886, 892 (3d Cir.
1995); Swineford v. Snyder County Pa.,
15 F.3d 1258, 1270 (3d
Cir. 1994). A plaintiff must first demonstrate the activity in
question was protected. Second, the plaintiff must show the
protected activity was a substantial or motivating factor in the
alleged retaliatory action. See Swineford, l5 F.3d at l270.
Finally, defendants may defeat plaintiff's claim by demonstrating
"that the same action would have been taken even in the absence
of the protected conduct."
Id. The district court did not reach
the last two factors because it resolved the first factor in
defendants' favor as a matter of law. Accordingly, our
discussion will focus on the first step, whether Green's
appearance in court was a protected activity.
To qualify as a protected activity, Green's court
appearance must satisfy the Pickering balancing test. See
Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will
County, 391 U.S. 563 (1968). First, the court appearance must
6
constitute "speech . . . on a matter of public concern."
Watters, 55 F.3d at 892. Second, the public interest favoring
his expression "must not be outweighed by any injury the speech
could cause to the interest of the state as an employer in
promoting the efficiency of the public services it performs
through its employees."
Id. See also Pickering, 391 U.S. at 568
("The problem in any case is to arrive at a balance between the
interests of the [employee], as a citizen, in commenting upon
matters of public concern and the interests of the State, as an
employer, in promoting the efficiency of the public services it
performs through its employees."); Versarge v. Township of
Clinton N.J., 984 F.2d 1359, 1366 (3d Cir. 1993) ("On plaintiff's
side of the balance, we must . . . consider the interests of the
public in plaintiff's speech."). Determining whether Green's
appearance is protected activity under Pickering is an issue of
law for the court to decide. See Waters v. Churchill, 114 S. Ct.
1878, 1884 (1994).
1. A Matter of Public Concern
Initially we must determine whether Green's appearance
as a character witness is a matter of public concern. See
Swineford, l5 F.3d at l270-72. We have held a public employee's
appearance as a witness, even in the absence of actual testimony,
is "speech" under Pickering. Pro, 81 F.3d at 1291. A public
employee's speech involves a matter of public concern if it can
"be fairly considered as relating to any matter of political,
social, or other concern to the community." Connick v. Myers,
461 U.S. 138, 146 (1983); see also
Watters, 55 F.3d at 892;
7
Versarge, 984 F.2d at 1364. This determination turns on the
content, form and context of the public employee's speech. See
Watters, 55 F.3d at 892.4 The district court held Green's court
appearance was a matter of public concern. We agree.
In Pro v. Donatucci, we recognized that a public
employee's court appearance in response to a subpoena is a matter
of public concern. 81 F.3d at 1291. The plaintiff in that case,
Sisinia Pro, was subpoenaed by her employer's wife to appear as a
witness at her employer's divorce proceedings. Pro appeared at
the hearing but was never called to testify. She was fired
shortly thereafter. Pro brought suit against her employer under
42 U.S.C. § 1983, claiming he fired her in retaliation for
protected activity. We found that Pro had a First Amendment
right to appear in court despite the fact that the content of her
speech was "purely private," because the form and context of her
speech was of public concern, i.e. an appearance to deliver sworn
testimony before an adjudicatory body. In explaining our
holding, we stated, "[T]he public employee's interest in
4. In Holder v. City of Allentown,
987 F.2d 188 (3d Cir. 1993),
we explained:
The content of the speech may help to characterize it as relating
to a matter of social or political concern of the
community if, for example, the speaker seeks to `bring
to light actual or potential wrongdoing or breach of
public trust' on the part of government officials. The
form and context of the speech may help to characterize
it as relating to a matter of social or political
concern to the community if, for example, the forum
where the speech activity takes place is not confined
merely to the public office where the speaker is
employed.
Id. at 195 (citations omitted).
8
responding to a subpoena and the judicial interest in having
state employees respond to subpoenas without fear of employer
reprisal justify our ruling. Moreover, . . . there is no
`practical distinction between retaliation on the basis of a
public employee's actual testimony and the retaliation that Pro
alleges.'" Id. (quoting Pro v. Donatucci, No. 94-CV-6001,
1995
WL 552980, at *4 n.3 (E.D. Pa. Sept. 18, 1995)).
We declined to rule in Pro whether a public employee's
voluntary appearance in court, not under subpoena, would be a
matter of public concern. See id. at 1291 n.3. That is one of
the issues facing us here, and it merits some discussion.
Although in practical terms it may be inconsequential
whether a witness has been subpoenaed (one can "volunteer" to
receive a subpoena), there would appear to be a conceptual
distinction that turns on a witness's will or desire to testify,
especially in this context where the witness is a law enforcement
officer. It should matter, therefore, whether a police officer
chooses to interject himself into a bail hearing, which is an
adversary proceeding, as a character witness for a defendant. On
the other hand, there is a compelling reason to find Green's
appearance to be a matter of public concern regardless of its
voluntary nature. That reason, of course, is the integrity of
the truth seeking process.
For guidance we will turn, as we did in Pro, to a line
of cases from the Court of Appeals for the Fifth Circuit holding
a public employee's truthful testimony, even if voluntary, is
inherently a matter of public concern protected by the First
9
Amendment. See id. at 1288 (citing Reeves v. Claiborne County
Bd. of Educ.,
828 F.2d 1096, 1100-01 (5th Cir. 1987); Johnston v.
Harris County Flood Control Dist.,
869 F.2d 1565, 1578 (5th Cir.
1989), cert. denied,
493 U.S. 1019 (1990)). As the Fifth Circuit
observed, "When an employee testifies before an official
government adjudicatory or fact-finding body he speaks in a
context that is inherently of public concern. Our judicial
system is designed to resolve disputes, to right wrongs. We
encourage uninhibited testimony, under penalty of perjury, in an
attempt to arrive at the truth. We would compromise the
integrity of the judicial process if we tolerated state
retaliation for testimony that is damaging to the state."
Johnston, 869 F.2d at 1578 (quotations and citations omitted);
see also Smith v. Hightower,
693 F.2d 359, 368 (5th Cir. 1982)
("[T]he first amendment protects the right to testify truthfully
at trial.").
Identical concerns are implicated by Green's voluntary
appearance at Keller's bail hearing, where the court depends upon
accurate testimony by those familiar with the defendant in order
to determine whether the defendant is likely to flee or endanger
the community. See 18 U.S.C. § 3142 (judicial officer must
release defendant on bail unless such release "will not
reasonably assure the appearance of the person as required or
will endanger the safety of any other person or the community.").
The utility of uninhibited testimony and the integrity of the
judicial process would be damaged if we were to permit unchecked
retaliation for appearance and truthful testimony at such
10
proceedings. Not only would "the first amendment right of the
witness be infringed by this type of coercion, the judicial
interest in attempting to resolve disputes by arriving at the
truth would be in jeopardy. Furthermore, a witness who succumbed
to any real or imagined coercion could also be subject to a
charge of perjury." Reeves, 828 F.2d at 1100.
In Pro, we held the context of a courtroom appearance
raises speech to a level of public concern, regardless of its
content. Pro, 81 F.3d at 1291; see also
Johnston, 869 F.2d at
1578 ("The goal of grand jury proceedings, of criminal trials,
and of civil trials is to resolve a dispute by gathering the
facts and arriving at the truth, a goal sufficiently important to
render testimony given in these contexts speech `of public
concern.'"); Reeves, 828 F.2d at 1100 (holding sworn subpoenaed
testimony is matter of public concern, even though the content of
the testimony "did not concern the type of political speech which
lies at the core of first amendment freedoms"); Langley v. Adams
County, Colo.,
987 F.2d 1473, 1479 (10th Cir. 1993) ("The law is
clearly established that the `First Amendment protects the right
to testify truthfully at trial.'"). But see Wright v. Illinois
Dep't of Children & Families Servs., 40 F.3d 1492, 1505 (7th Cir.
1994) (declining to adopt Fifth Circuit analysis); Arvinger v.
Mayor and City Council of Baltimore,
862 F.2d 75, 79 (4th Cir.
1988) (emphasizing the importance of content over context). We
can discern no reason why a voluntary appearance would eliminate
11
the public interest. Therefore, we hold that Green's voluntary
appearance as a character witness is a matter of public concern.5
2. Balance of Interests
The question remains whether Green's free speech
interest in testifying as a character witness is outweighed by
any injury the speech could cause to the interests of the Housing
Authority Police Department as employer. See Waters, 114 S. Ct.
at 1884;
Pickering, 391 U.S. at 568; Swineford, l5 F.3d at l272.
If Green's court appearance could potentially disrupt the work
of the Housing Authority Police Department, and this potential
for injury outweighs the public's interest in Green's speech,
then judgment for the defendants is proper. See Waters, 114 S.
Ct. at 1890 (weighing First Amendment "value" of speech against
"the potential disruptiveness of the speech"). The district
court granted the Housing Authority judgment as a matter of law,
finding Green's appearance injured the DETF's interests in
minimizing departmental disruption and maintaining an environment
of trust and security.
5. Judge Roth would note that had this Court not held in Pro v.
Donatucci, 81 F.3d at 1288-91, that a public employee's potential
sworn testimony before an adjudicatory body was a matter of
public concern and protected by the First Amendment, she would
dissent on the issue of whether the public employee's actions
here were a matter of public concern. She dissented in Pro on
the basis that compliance with a subpoena is not speech. She
does not, however, believe that she can distinguish the present
case from Pro on the sole basis that here the public employee had
not been subpoenaed. Were Pro not precedent, she would disagree
with the panel that a non-subpoenaed appearance by a public
employee, much less than a subpoenaed appearance, is a matter of
public concern. She would nevertheless concur in the ultimate
conclusion that, due to their potential disruptive impact, the
actions here were not protected speech.
12
Normally, this balancing test would be an issue of fact
and would remain in the hands of the fact finder. But where the
presence of factual disputes would normally preclude the court
from ruling as a matter of law, Supreme Court precedent requires
the trial court to do so. "Although such particularized
balancing is difficult, the courts must reach the most
appropriate possible balance of the competing interests. . . .
[Courts] are compelled to examine for [them]selves the statements
in issue and the circumstances under which they [are] made to see
whether or not they . . . are of a character which the principles
of the First Amendment . . . protect." Connick, 461 U.S. at 150
& n.10 (quoting Pennekamp v. Florida,
328 U.S. 331, 335 (1946)).
In weighing the competing interests, we begin with the
proposition that all court appearances are matters of public
concern. That is so because all court appearances implicate the
public's interest in the integrity of the truth seeking process
and the effective administration of justice. But at the same
time, it would appear that the strength of the public's interest
can vary based on the nature of the court appearance. See Pro,
81 F.3d at 1291 n.4 ("We have not held that courtroom testimony
should receive `absolute' First Amendment protection.")
It is of some moment, therefore, that Green appeared
voluntarily, not in response to a subpoena. As we have held, a
voluntary court appearance is a matter of public concern. We
encourage voluntary testimony so that parties and courts have
access to all available information and witnesses. But the
public interest favoring subpoenaed testimony is even stronger.
13
It implicates not only the integrity of the truth seeking process
and the effective administration of justice, but also the
public's interest in protecting court-ordered conduct. See id.
at 1290 ("A subpoenaed witness has no choice but to appear at a
trial, unless he is willing to risk a finding of contempt.")
(quoting Pro v. Donatucci, No. 94-CV-6001, 1995 WL 552980, at
*13-14 (E.D. Pa. Sept. 18, 1995)). As Green appeared
voluntarily, it would seem that the public's interest in his
court appearance is somewhat more limited than it would be if his
appearance were subpoenaed.
Nor do we find it significant that Green appeared as a
witness at a bail hearing as opposed to a trial. Reputation
testimony is probative in either. In addition, while some
commentators have implied that character testimony is less
important than fact testimony,6 we believe no distinction should
be made between character and fact testimony for Pickering
purposes. Both are essential to the truth seeking process.7
6. See, e.g., McCormick on Evidence 549 (Edward W. Cleary ed.)
(3d ed. 1984) ("[I]n many situations, the probative value [of
character evidence] is slight and the potential for prejudice
large.").
7. See, e.g., United States v. Logan, 717 F.2d 84, 87-93 (3d
Cir. 1983) (discussing the importance of character testimony, and
recommending a jury instruction that, "[w]here a defendant has
offered evidence of good general reputation for truth and
veracity, . . . the jury should consider such evidence along with
all the other evidence in the case" and that "[e]vidence of a
[criminal] defendant's reputation . . . may give rise to a
reasonable doubt"); see also Committee on Model Crim. Jury
Instructions Within the 8th Cir., Manual of Model Crim. Jury
Instructions for the District Courts of the 8th Cir. 89 (1994)
(some circuits now favor a jury instruction that character
evidence should be considered together with all other evidence in
a case; the "standing alone" charge is seen as an unwarranted
14
In comparison, the interests of the Housing Authority
Police Department as employer are very significant. They include
successfully fighting drugs and crime, protecting the safety of
its officers and other members of the community, fostering trust
and confidence among its officers and between its officers and
other law enforcement drug units, and protecting the Housing
Authority Police Department's reputation. As defendants state in
their brief on appeal, they were concerned "that the plaintiff's
voluntary appearance, as a narcotics officer, at a bail hearing
on behalf of a reputed organized crime associate would bring
discredit upon the [Housing Authority Police Department],
endanger the plaintiff and tarnish the image of the [Housing
Authority Police Department] in the eyes of the residents of
public housing the department serves . . . ." (Appellee's Br. at
5.) These interests merit substantial protection, and any risk
of departmental injury or disruption weighs heavily under the
Pickering balancing test.
We agree with the district court that there was a risk
of departmental injury based on the "potential disruptiveness of
the speech." Waters, 114 S. Ct. at 1890. First, an unnamed
police officer telephoned Rosenstein to report Green's appearance
at Keller's hearing. Second, Green testified at trial he heard
comments from co-workers and friends that "[g]uys wouldn't want
to work with me because they were afraid that I knew people in
the mob . . . ." (J.A. at 59.) Finally, because of the nature of
(..continued)
invasion of the jury's special function in deciding what weight
to give any particular item of evidence.).
15
DETF work, any perceived breach of trust and security could
reasonably constitute a threat to the DETF, its officers and its
relationships with other police drug units and the community it
serves. This risk of injury to the Housing Authority Police
Department outweighs the public interest favoring Green's speech.
Judgment as a matter of law for defendants is proper under
Pickering.
Green argues he should not be held responsible for
creating the potential disruption because he followed
departmental procedures and testified only after receiving
express permission from his superiors. But a public employee in
a sensitive position like Green cannot turn a blind eye to the
possible consequences of his voluntary testimony. The
responsibility must lie with Green to investigate the nature of
the criminal charges, and to bear any risks associated with his
voluntary court appearance.8
Green also claims that the Housing Authority Police
Department's reasons for his transfer were pretextual, i.e. that
the potential for departmental disruption was not the true cause
for his transfer. But the test in Waters is an objective one for
"potential disruptiveness." Waters, 114 S. Ct. at 1890; see also
Watters, 55 F.3d at 896. Therefore any pretext is irrelevant to
our weighing analysis.
8. Nor do we believe this case raises questions of equitable
estoppel. For example, if Green had been granted permission to
testify after advising his supervisors that Keller was an
organized crime associate, the Housing Authority Police
Department might well be estopped from imposing sanctions.
16
The second step in the Pickering analysis, whether the
protected activity was a substantial or motivating factor in the
transfer decision, would be a factual issue for the jury. But
under Pickering we do not reach this step. Nor do we reach the
third step in the analysis, whether defendants would have
transferred Green even in the absence of his speech. Therefore
we will affirm the district court.
3. Conclusion
Implicit in Green's claims is the notion his transfer
was unfair under the circumstances. Green voluntarily chose to
testify as a character witness for the son of a friend. He
followed the applicable rules and received permission to testify,
although neither the Housing Authority Police Department nor he
knew of the organized crime association. He appeared at the bail
hearing, but when he realized the nature of the charges facing
Keller and his association with organized crime, he left the
hearing without testifying. His superiors testified they do not
believe he has any association with organized crime and, in fact,
if they had, Green would have been fired.
Nonetheless, the Housing Authority Police Department
contends Green's actions were potentially disruptive to the
proper functioning of the department. Whether there is potential
disruption is an issue of law for the court. We have found there
was a likelihood of disruption and that it outweighs the
interests favoring the protected activity.
Had Green been fired instead of reassigned, the penalty
would have appeared especially severe in view of his supervisors'
17
belief that he had no association with organized crime. It may
be argued, therefore, that the degree of harm should be factored
into the test. But if the proper standard is the potential for
disruption, it is difficult to see how the extent of harm can be
taken into account.
Of course, different facts can change the calculus. In
weighing the protected interest against the likelihood of
disruption, it is especially significant that a law enforcement
officer whose primary duty is to fight drugs testified as a
character witness for a defendant who was part of an organization
well known for its involvement in the drug trade. The
correlation could not be more direct nor more damaging to the
Housing Authority Police Department's role. A more oblique
correspondence might well bring a different result under the
weighing process.
B. Section 1985(2)
Green also brought a claim under 42 U.S.C. § 1985(2),
alleging defendants illegally conspired to transfer him in
retaliation for his appearance as a character witness in federal
court. But, as we have held, defendants' transfer of Green was
not unlawful. For the reasons we have stated and for those given
by the district court, we hold the dismissal of Green's § 1985(2)
claim was proper.
C. State Constitution
Green also sued defendants under the Pennsylvania
Constitution for deprivation of reputation without due process.
The district court rejected Green's deprivation of reputation
18
claim as a matter of law because Green could not establish a
causal connection between his reputation injury and the
defendants' conduct. We agree this claim was properly dismissed.
III. Conclusion
For these reasons we will affirm the judgment of the
district court.9
9. In light of our decision to uphold the district court's
dismissal of Green's claims, there is no need to discuss the
other issues on appeal: whether the trial court erred in
excluding certain evidence of harm to plaintiff's reputation and
in ruling that punitive damages could not be awarded.
19
