Crystal Starnes v. BUTLER COUNTY COURT OF COMMON PLEAS, 50th Judicial District

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-3271
___________
CRYSTAL STARNES
v.
BUTLER COUNTY COURT OF COMMON PLEAS,
50th Judicial District;
THOMAS DOERR, individually;
THOMAS HOLMAN, individually
Thomas Doerr,
Appellant
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-17-cv-01304)
District Judge: Honorable Cathy Bissoon
___________
Argued April 22, 2020
Before: HARDIMAN, RENDELL, and FISHER, Circuit
Judges.

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(Filed: August 24, 2020)
Ronald T. Elliott
Thomas W. King, III
Dillon McCandless King Coulter & Graham
128 West Cunningham Street
Butler, PA 16001
Louis C. Long
Thomas P. McGinnis
Karin M. Romano [Argued]
Thomas Thomas & Hafer
525 William Penn Place
37th Floor, Suite 3750
Pittsburgh, PA 15219
Attorneys for Appellant Thomas Doerr
Jaime L. George
Edward A. Olds [Argued]
Olds Russ & Associates
1007 Mount Royal Boulevard
Pittsburgh, PA 15223
Attorneys for Appellee Crystal Starnes
Robert J. Krandel
Caroline P. Liebenguth
Supreme Court of Pennsylvania
Administrative Office of Pennsylvania Courts
1515 Market Street
Suite 1414
Philadelphia, PA 19102
Attorneys for Butler County Court of Common Pleas, 50th
Judicial District and Thomas Holman

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____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Judge Thomas Doerr appeals an order of the District
Court denying him qualified immunity on civil rights claims
brought by Plaintiff Crystal Starnes. Starnes contends we lack
jurisdiction to hear the appeal, but we disagree. As for the
merits, we agree with Starnes, except for her First Amendment
freedom of association claim. So we will affirm in part, reverse
in part, and remand the case for further proceedings.
I
Because Doerr appeals an order denying his motion to
dismiss under Rule 12(b), we must accept Starnes’s well-
pleaded allegations as true, construe them in the light most
favorable to her, and draw all reasonable inferences in her
favor. SEC v. Gentile, 939 F.3d 549, 552 n.1 (3d Cir. 2019).
We present the facts subject to those principles.
A
In 2004, Starnes met Doerr at a Christmas party held by
the Chief Public Defender for Butler County, Pennsylvania. At
the time, Starnes was a Probation Officer in Allegheny County,
and Doerr was the President Judge of the Butler County Court
of Common Pleas. Doerr flirted with Starnes at the party, they
exchanged phone numbers, and Doerr suggested they stay in
touch.

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Following the party, Doerr repeatedly called Starnes to
ask her to “meet him at his chambers.” Starnes v. Court of
Common Pleas of Butler Cty. (Starnes I), 2018 WL 3586835,
at *1 (W.D. Pa. 2018). Starnes initially declined Doerr’s
invitations, but in early 2005 she relented and visited his
chambers after hours. When she arrived, Doerr began kissing
her and insisted she have sex with him. Starnes did so even
though Doerr’s advances were not welcome. Earlier that
evening, Doerr had discussed the prospect of hiring Starnes as
a probation officer in Butler County. Doerr later told Starnes
that “their sexual interactions would be a ‘business
relationship.’” Id.
In the summer of 2005, a job became available in the
Butler County Probation Office. Doerr, in his capacity as
President Judge, exercised supervisory authority over the
hiring of probation officers. Starnes wished to return to Butler,
her hometown, and Doerr made sure she was hired. After
Starnes started working in Butler County, Doerr began
summoning her to his chambers and cajoling her into sexual
relations. He also shared pornography with Starnes and
discussed sex on the telephone with her. This situation
continued for four years.
After their sexual relations ended in 2009, Doerr
continued to try to influence Starnes by asking her to film
herself performing sexual acts, flirting with her from his
position on the bench, holding her “hand while explaining that
he could help her return to her previous job,” and interrupting
her when she spoke to male staff. Id. at *1–2. In 2010, Starnes
began dating the man she later married, who was also a
Probation Officer in Butler County. He was harassed and
pushed into retirement by Butler County administrators.

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In 2014, Doerr transferred Starnes to the Butler County
Domestic Relations Office at her request. Starnes regretted her
decision and asked to return to the Probation Office, which she
was entitled to do within 30 days. At first, Doerr did not allow
her to return. Thomas Holman, the Deputy Court
Administrator, told Starnes that “[t]he marriage was over” and
she would “have to sue Doerr” to get her previous job back. Id.
at *2, 8. Doerr eventually allowed Starnes to return, but only if
she signed a general release waiving all claims against the
Butler County Court of Common Pleas.
When Starnes returned to the Probation Office, she was
denied her own office, overtime, training opportunities, and the
right to serve on-call duty—opportunities she alleges her male
counterparts had. She also was isolated from other officers and
was not allowed to supervise other probation officers in the
field. And whenever she visited probationers, Doerr assigned
two male partners to accompany her because he believed it was
too dangerous.
Because Starnes suspected discrimination, she
contacted the United States Equal Employment Opportunity
Commission (EEOC) in February 2016 intending to file
charges. Within days of telling her supervisors (including
Doerr and Holman) of her intentions, Starnes was placed on a
“performance improvement plan” and she was told Doerr and
Holman were behind the move. One month prior to that,
Starnes had received a positive evaluation with no noted
performance issues.
B
After the EEOC issued a right-to-sue letter, Starnes filed
a five-count complaint (as Jane Doe) in the District Court

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against Doerr, Holman, and the Butler County Court of
Common Pleas. Count I alleged a Title VII hostile work
environment claim against the County. Count II alleged that
Doerr violated her First Amendment rights by forcing her to
associate with him in an intimate fashion. Count III alleged a
violation of her Fourteenth Amendment equal protection rights
by discriminating against her on the basis of sex. Count IV
alleged Doerr and Holman retaliated against her for exercising
her First Amendment rights. Count V alleged Doerr and
Holman violated her Fourteenth Amendment right to due
process. After the District Court ordered her to do so, Starnes
identified herself in an amended complaint.
Starnes later filed a second amended complaint,
alleging the same five counts. Doerr moved to dismiss the
claims against him (Counts II-V) for several reasons, including
qualified immunity.1
On July 26, 2018, the District Court granted the motion
in part and denied it in part. It dismissed Starnes’s equal
protection claim (Count III) without prejudice with leave to
amend and dismissed her procedural due process claim (Count
V) with prejudice. It denied Doerr’s motion on all other
grounds and rejected his qualified immunity defense.
As the Court gave Starnes a final chance to amend the
equal protection claim, she filed a third amended complaint.
Doerr again moved to dismiss, incorporating arguments from
1 Holman and the Butler County Court also filed a
motion to dismiss, which the District Court denied in its July
26 order. They are not parties to this appeal.

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his previous motion to dismiss and reiterating his qualified
immunity defense.
On October 4, 2018, the District Court denied the
motion, holding that Starnes sufficiently alleged that Doerr
discriminated against her because of sex. Starnes v. Court of
Common Pleas of Butler Cty., 2018 WL 4828515, at *1 (W.D.
Pa 2018) (Starnes II). The District Court did not discuss other
issues addressed in the opinion on the prior motion to dismiss,
except to note that Doerr misunderstood the decision on the
freedom of association claim (Count II) and that his “renewed
immunity arguments” were “improperly raised and legally
unsound.” Id. at *1 n. 2.
Doerr appealed to our Court. Starnes moved to dismiss
Doerr’s appeal as untimely, claiming the July 26 order was not
appealed within thirty days, as required by the Federal Rules
of Appellate Procedure, and the October 4 order was an
unappealable interlocutory order. A motions panel of this
Court referred Starnes’s motion to dismiss the appeal to the
merits panel, so we address it now.
II
The District Court had subject matter jurisdiction under
28 U.S.C. §§ 1331 and 1343. The “collateral order doctrine”
gives us jurisdiction under 28 U.S.C. § 1291 to review certain
interlocutory orders. Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 545 (1949). An order denying a defendant
qualified immunity can constitute such an order. Mitchell v.
Forsyth, 472 U.S. 511, 526–27 (1985). An appeal must be filed
within thirty days after entry of the order or judgment appealed
from. FED. R. APP. P. 4(a). Our review is plenary. See Bistrian
v. Levi, 696 F.3d 352, 364 (3d Cir. 2012).

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Starnes argues we lack jurisdiction because Doerr failed
to timely appeal the July 26 order that “conclusively
determined” the qualified immunity issue. Starnes Br. 1–2
(citing FED. R. APP. P. 4(a)(1)). In order to be appealable,
collateral orders must “conclusively determine” an issue,
meaning the resolution of the issue must be “complete, formal,
and . . . final.” Harris v. Kellogg Brown & Root Serv’s, Inc.,
618 F.3d 398, 401 (3d Cir. 2010) (citation omitted). Orders
denying qualified immunity ordinarily are conclusive in one of
two ways: (1) either “there will be nothing in the subsequent
course of the proceedings in the district court that can alter the
court’s conclusion that the defendant is not immune”; or
(2) “the court’s denial . . . finally and conclusively determines
the defendant’s claim of right not to stand trial [or undergo
“the burdens of broad-reaching discovery”] on the plaintiff’s
allegations.” Mitchell, 472 U.S. at 526–527. In either case,
“Cohen’s threshold requirement of a fully consummated
decision is satisfied.” Id. (quoting Abney v. United States, 431
U.S. 651, 659 (1977)).
The Court’s October 4 order denying qualified
immunity fits into the second category. It finally and
conclusively subjects Doerr to the burdens of discovery and
involved purely legal questions. It is therefore a final decision
for purposes of the collateral order doctrine. See Vanderklok v.
United States, 868 F.3d 189, 196–97 (3d Cir. 2017). So for
Starnes to prevail on her jurisdictional argument, we would
have to find that Doerr’s failure to appeal the District Court’s
July 26 order denying qualified immunity and granting Starnes
leave to file an amended complaint precluded him from
challenging that denial of qualified immunity on appeal from
subsequent orders that denied him qualified immunity. We

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discern no reason why the July 26 order should have such
preclusive effect.
In its July 26 order, the District Court decided the
qualified immunity issue for most of Starnes’s claims, but it
granted her leave to amend. Had Starnes chosen to stand on her
second amended complaint, the District Court’s order certainly
would have become an appealable interlocutory order. See In
re Westinghouse Sec. Litig., 90 F.3d 696, 705 (3d Cir. 1996).2
But she filed a third amended complaint, and Doerr asserted
qualified immunity by incorporating arguments he had made
in his prior motion. The District Court then issued the October
4 order, which conclusively determined that litigation would
proceed as to the amended claim as well as those addressed in
July. Doerr then timely appealed that final, appealable
interlocutory order in accordance with Rule 4(a).
In a previous decision, we explained that the Rule 4(a)
deadline “applies to ‘all appealable orders, including collateral
orders, specifically orders denying immunity.’” In re
Montgomery County, 215 F.3d 367, 372 (3d Cir. 2000)
(quoting Weir v. Propst, 915 F.2d 283, 286 (7th Cir. 1990)).
There, we quoted approvingly the Seventh Circuit’s statement
that if “the deadline [to appeal an interlocutory order] is
missed, th[at] order is not appealable. The defendant must then
wait until another appealable order . . . is entered, upon appeal
of which he can challenge any interlocutory order that has not
become moot.” Id. (internal citation omitted). Doerr did just
2 We need not, and do not, decide whether an order
denying qualified immunity but granting narrow leave to
amend, like the July order here, can ever be immediately
appealable when a plaintiff does not elect to stand on her
complaint.

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that, “wait[ing] until another appealable order [on October 4
was] entered.” Id. The qualified immunity issue was not moot
and Doerr appealed the October 4 order well before the 30 days
expired.
Finally, “the historic federal policy against piecemeal
appeals” also supports our holding. Sears, Roebuck & Co. v.
Mackey, 351 U.S. 427, 438 (1956). As the Supreme Court has
explained:
From the very foundation of our judicial system
the object and policy of the acts of congress in
relation to appeals and writs of error . . . have
been to save the expense and delays of repeated
appeals in the same suit, and to have the whole
case and every matter in controversy in it decided
in a single appeal.
McLish v. Roff, 141 U.S. 661, 665–66 (1891). On Starnes’s
view, Doerr would have to appeal each order of the District
Court denying qualified immunity. Forcing him to file two or
more separate appeals on the qualified immunity issue at the
pleadings stage would contravene our duty to “protect the
integrity of the congressional policy against piecemeal
appeals.” Switz. Cheese Ass’n v. E. Horne’s Mkt. Inc., 385 U.S.
23, 25 (1966). Accordingly, we hold that Doerr’s appeal is
timely and we have jurisdiction under § 1291.
III
Having established our jurisdiction to hear this appeal,
we turn to the merits of Doerr’s qualified immunity defense.

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“In considering whether qualified immunity attaches,
courts perform a two-pronged analysis to determine: (1)
‘whether the facts that [the] plaintiff has alleged . . . make out
a violation of a constitutional right,’ and (2) ‘whether the right
at issue was ‘clearly established’ at the time of [the]
defendant’s alleged misconduct.’” Kedra v. Schroeter, 876
F.3d 424, 434 (3d Cir. 2017) (alterations in original) (quoting
Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
For a constitutional right to be clearly established, “[t]he
contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). We
ask if the case law at the time of the violation would have put
the official on “fair notice” that his conduct violated the
plaintiff’s rights. Hope v. Pelzer, 536 U.S. 730, 739 (2002). In
other words, the “existing precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011).
To determine whether a right is clearly established,
“[w]e look first to applicable Supreme Court precedent” and if
“none exists, it may be possible that a ‘robust consensus of
cases of persuasive authority’ in the Court[s] of Appeals could
clearly establish a right for purposes of qualified
immunity.” L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 247–48
(3d Cir. 2016) (alteration in original) (citation omitted).
A
We first consider Doerr’s argument that the District
Court erred in denying him qualified immunity on Starnes’s
Fourteenth Amendment equal protection claim (Count III). We
disagree and hold that Starnes stated plausible claims for sex

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discrimination in violation of the Equal Protection Clause. The
District Court did not err in denying Doerr qualified immunity.
1
Starnes first alleges that Doerr violated her equal
protection rights by treating her differently from her male
colleagues because of her sex. The District Court found
Starnes’s allegations of sexual harassment “more than
sufficiently allege[d] severe and pervasive discrimination”
under the Fourteenth Amendment. Starnes I, 2018 WL
3586835, at *8. It also found Starnes had alleged that Doerr
denied her field-visit opportunities he gave male officers and
prevented her from working as a standby probation officer,
which cost her the “opportunity to acquire overtime and comp
time.” Starnes II, 2018 WL 4828515, at *2. According to the
District Court, these facts plausibly stated an equal protection
claim. Id. (citing Boykins v. Ambridge Area Sch. Dist., 621
F.2d 75, 80 (3d Cir. 1980)). We agree.
The Equal Protection Clause proscribes sex-based
discrimination. Keenan v. City of Philadelphia, 983 F.2d 459,
465 (3d Cir. 1992). We analyze Starnes’s § 1983 equal
protection claim using the McDonnell Douglas framework that
applies in Title VII cases. See St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 506 n. 1 (1993); McKenna v. Pac. Rail Serv., 32
F.3d 820, 825 n.3 (3d Cir. 1994); see also Lewis v. Univ. of
Pittsburgh, 725 F.2d 910, 915 n.5 (3d Cir. 1983) (explaining
that Title VII and § 1983 share the same elements for
discrimination purposes).
Title VII makes it an “unlawful employment practice
for an employer to . . . discriminate against any individual with
respect to [her] compensation, terms, conditions, or privileges

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of employment, because of such individual’s . . . sex.” 42
U.S.C. § 2000e–2(a). An employer violates Title VII if the
employee’s sex was one but-for cause of her disparate
treatment. Bostock v. Clayton County, 140 S. Ct. 1731, 1739–
40 (2020).
Starnes alleged she was treated worse than similarly
situated male probation officers in two ways: quid pro quo
sexual harassment and the denial of job entitlements. She
claimed Doerr coerced her into sexual relations, then continued
to make sexually suggestive gestures toward her and asked her
to perform sexual acts on herself after their relationship ended.
Starnes linked Doerr’s sexual advances with her hiring
and performance as a Butler County Probation Officer. As we
have stated:
[U]nwelcome sexual advances, requests for
sexual favors, and other verbal or physical
conduct of a sexual nature constitute [quid pro
quo ] sexual harassment when (1) submission to
such conduct is made either explicitly or
implicitly a term or condition of an individual’s
employment [or] (2) submission to or rejection
of such conduct by an individual is used as the
basis for employment decisions affecting such
individual.
Bonenberger v. Plymouth Township, 132 F.3d 20, 27 (3d Cir.
1997) (second and third alterations in original) (quoting
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296 (3d Cir.
1997), abrogated on unrelated grounds by Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).

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A triable claim exists when the plaintiff alleges that she
would not have been sexually harassed but for her sex. Bostock,
140 S. Ct. at 1744 (Title VII) (citing Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75 (1998) (same)). We have
likewise explained that “[t]he intent to discriminate on the
basis of sex in cases involving sexual propositions . . . is
implicit, and thus should be recognized as a matter of course.”
Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 214 (3d Cir.
2017) (citation omitted).
Starnes alleged Doerr forced her to engage in sexual
relations, shared pornography with her, and requested she send
him videos of herself performing lewd acts. She accused Doerr
of flirting with her in an attempt to restart sexual relations.
Starnes also alleged that their sexual encounters were
considered a “business relationship,” that Doerr had discussed
using his position to help her get hired in Butler County before
coercing her to engage in sexual relations, and that she felt
compelled to acquiesce to his demands because of his position
as her boss. And after they stopped having sex, Starnes alleged
that she was denied many terms and conditions of her
employment.
For example, Starnes claimed she was denied her own
office, overtime opportunities, and the ability to go into the
field and supervise other probation officers. She alleged that
her male counterpart could go into the field to supervise his
probationers, earn overtime, and attend supervisors’ meetings.
Finally, Starnes claimed she was not on the general email list
for probation officers and that Doerr assigned two males to
accompany her on field visits while the male probation officer
could choose his partner.

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Accepting these allegations as true, Starnes stated
plausible claims for sex discrimination in violation of the Equal
Protection Clause because of quid pro quo sexual harassment
and the denial of benefits afforded to her male counterparts.
See id. Because the law is clearly established that this conduct
is actionable discrimination, the District Court did not err in
denying Doerr qualified immunity.
2
We also consider whether the District Court erred in
denying Doerr qualified immunity on Starnes’s § 1983 hostile
work environment claim. We hold it did not err.
Sexual harassment that creates a hostile work
environment clearly violates Title VII. Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 67 (1986). Under Title VII, a hostile
work environment exists “when the workplace is permeated
with ‘discriminatory intimidation, ridicule, and insult,’ that is
‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working
environment.’” Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 116 (2002) (quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993)). The Supreme Court has explained further
that “conditions” of employment cover not only economic or
tangible discrimination, but “the entire spectrum of disparate
treatment of men and women.” Id. (citations omitted).
To plead a hostile work environment claim, a plaintiff
must allege: “(1) [S]he suffered intentional discrimination . . .;
(2) the discrimination was severe or pervasive; (3) the
discrimination detrimentally affected her; (4) it would have
detrimentally affected a reasonable person in like
circumstances; and (5) a basis for employer liability is

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present.” Komis v. Sec’y of U.S. Dep’t of Labor, 918 F.3d 289,
293 (3d Cir. 2019) (alteration in original) (quoting Jensen v.
Potter, 435 F.3d 444, 449 (3d Cir. 2006), overruled on other
grounds by Burlington N. & Santa Fe Ry. Co., 548 U.S. 53).
“[L]ess severe isolated incidents which would not themselves
rise to the level of [discrimination] may, when taken together
as part of ‘the overall scenario,’ evidence [discriminatory]
animus, and one severe incident may be enough to create a
hostile work environment.” Id. at 293–94.
Starnes alleged a hostile work environment under those
standards. She alleges Doerr—her supervisor as the President
Judge of Butler County—coerced her into engaging in sexual
relations, shared pornography with her, asked her to film
herself performing sexual acts, engaged in a pattern of
flirtatious behavior, scolded her for speaking with male
colleagues, assigned her duties forcing her to be close to him,
and treated her differently than her male colleagues. Taken
together, these allegations support severe or pervasive
discrimination such that the working environment was
subjectively and objectively offensive.
Doerr argues Starnes did not allege a clearly established
right because we have not previously held that a hostile work
environment is cognizable under § 1983. But we have been
clear that § 1983 shares the same elements for discrimination
purposes as a Title VII action. See Lewis, 725 F.2d at 915 n.5.
And a robust consensus of persuasive authority exists to clearly
establish that creating a hostile work environment constitutes a
§ 1983 violation. See, e.g., Lauderdale v. Tex. Dep’t of Crim.
Just., Inst. Div., 512 F.3d 157, 165–66 (5th Cir. 2007); Huff v.
Sheahan, 493 F.3d 893, 902 (7th Cir. 2007); Rivera v. P.R.
Aqueduct & Sewers Auth., 331 F.3d 183, 191–92 (1st Cir.
2003); Nieto v. Kapoor, 268 F.3d 1208, 1217–20 (10th Cir.

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2001); Moring v. Ark. Dep’t. of Corr., 243 F.3d 452, 455 (8th
Cir. 2001); Watkins v. Bowden, 105 F.3d 1344, 1355 n.19 (11th
Cir. 1997); Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir. 1996);
Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir. 1994); Bator v.
Hawaii, 39 F.3d 1021, 1027–28 (9th Cir. 1994); Boutros v.
Canton Reg’l Transit Auth., 997 F.2d 198, 202–04 (6th Cir.
1993) (overruled on other grounds by Harris, 510 U.S. at 17).
Because the law is clearly established that the sexual
harassment Starnes alleged creates a hostile work environment
actionable under § 1983, the District Court did not err in
denying Doerr qualified immunity on Count III.
B
We turn now to Starnes’s First Amendment claims.
1
In Count IV, Starnes claimed Doerr violated her
freedom of expression and right to petition the government.
The District Court concluded that Starnes sufficiently pleaded
this claim and that Doerr was not entitled to qualified
immunity. We agree.
Beginning in 2015, Starnes took a variety of actions
protected by the First Amendment. After her request for on-
call duty in 2015 was rejected, she sent several “Right to
Know” requests to Butler County seeking information about
overtime pay for probation officers. She also told her
supervisors she planned to file a charge of discrimination with
the EEOC. After telling her supervisors about the complaint in
February 2016, Doerr and Holman placed her on a

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“performance improvement plan” in March, even though she
had received a good evaluation at the end of January. App. 113.
The law is clearly established that Doerr may not
retaliate against Starnes for exercising her First Amendment
rights. Wilkie v. Robbins, 551 U.S. 537, 555 (2007). Official
retaliation for protected speech “offends the Constitution
[because] it threatens to inhibit exercise of the protected right.”
Hartman v. Moore, 547 U.S. 250, 256 (2006) (alteration in
original) (citation omitted). A plaintiff claiming retaliation
must allege “(1) constitutionally protected conduct, (2)
retaliatory action sufficient to deter a person of ordinary
firmness from exercising h[er] constitutional rights, and (3) a
causal link between the constitutionally protected conduct and
the retaliatory action.” Mirabella v. Villard, 853 F.3d 641, 649
(3d Cir. 2017) (citation omitted).
Starnes’s complaint to the EEOC was constitutionally
protected. See Anderson v. Davila, 125 F.3d 148, 161 (3d Cir.
1997). “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
225, 241–42 (3d Cir. 2006) (quoting Garcetti v. Ceballos, 547
U.S. 410, 418 (2006)). Starnes’s report of sexual harassment
and discriminatory conduct by the President Judge falls
squarely within the protected conduct envisioned by the
Constitution.
A public employee speaks as a citizen when she makes
her statement outside the scope of her official duties. See id. A
matter is of public concern if it “can be fairly considered as

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relating to any matter of political, social or other concern to the
community.” Id. at 242–43 n.25 (citation omitted). When an
employee exposes malfeasance by a government official, it is
a matter of public concern. Azzaro v. County of Allegheny, 110
F.3d 968, 978–79 (3d Cir. 1997). As the District Court
correctly reasoned, Starnes made her report to the EEOC as a
citizen and the statement involved a matter of public concern
because it dealt with sexual malfeasance and an abuse of power
by a judge. Additionally, Starnes’s EEOC complaint is
“petitioning activity” because her complaint was not clearly
frivolous or a sham. See Hill, 455 F.3d at 242 n.24; Anderson,
125 F.3d at 161.
Next, we must decide whether Starnes sufficiently
alleged Doerr retaliated against her as a result of her report to
the EEOC. Retaliatory action in this § 1983 case is conduct
“sufficient to deter a person of ordinary firmness from
exercising h[er] [constitutional] rights.” Rauser v. Horn, 241
F.3d 330, 333 (3d Cir. 2001) (second alteration in original)
(citation omitted).
Starnes alleged that days after she told her supervisors
about her complaint, Doerr and Holman placed her on a
performance improvement plan. Such a plan would have a
chilling effect on a person of ordinary firmness because she
could reasonably believe pursuing her constitutional rights
could jeopardize her employment and prospects for
advancement. So Starnes alleged retaliatory action in response
to her protected conduct.
Finally, Starnes must plead “but-for” causation between
her constitutionally protected conduct and the retaliation.
Hartman, 547 U.S. at 256. She must allege “the elements of
retaliatory animus as the cause of injury, and the defendant will

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have the . . . opportunity to respond to a prima facie case by
showing that the action would have been taken anyway,
independently of any retaliatory animus.” Id. at 260–61. A
causal link may be established by showing “unusually
suggestive temporal proximity.” Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
Starnes alleged that she told Holman and Doerr about
her EEOC complaint in February 2016. And they placed her on
a performance improvement plan within days. This temporal
proximity between the protected activity and retaliation
suggests causation. See, e.g., Jalil v. Avdel Corp., 873 F.2d
701, 708 (3d Cir. 1989) (retaliatory conduct two days after an
EEOC claim showed a causal link). When combined with
Starnes’s allegation that she had received a positive
performance review a month before she was put on the
performance improvement plan, we conclude that the
allegations, “looked at as a whole, . . . suffice to raise the
inference” of a causal link. Kachmar v. SunGard Data Sys.,
Inc., 109 F.3d 173, 177 (3d Cir. 1997).
In sum, Starnes has pleaded that she spoke as a citizen
on a matter of public concern and that she suffered retaliation
as a result of the exercise of her clearly established
constitutional right. We will therefore affirm the District
Court’s order denying Doerr’s qualified immunity defense on
Count IV.
2
We turn next to Doerr’s argument that he is entitled to
qualified immunity on Starnes’s First Amendment association
claim (Count II). The District Court denied Doerr qualified
immunity on this claim as well. We disagree and will reverse.

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Starnes alleged that Doerr “violat[ed] her association
rights by imposing or seeking to impose an intimate
relationship on her.” Dkt. No. 34, at 11. Specifically, she
averred that since she ended their sexual relationship, Doerr
acted to coerce her into maintaining it, insisting she appear in
his court so he could “look her over,” transferring her to the
Juvenile Division so she would “be close to him,” App. 118,
and scolding her when she spoke to other men at work. App.
118. Starnes also alleged that Doerr once “ran into [her] and
her future husband at a Lowe’s store, and remarked that he
hoped they were off the clock.” App. 72 ¶ 33. And Starnes
alleged, in conclusory fashion, that she and her future husband
“were subjected to harassment at the hands of the Court’s
administration under the direction or acquiescence of Doerr,”
eventually causing her husband to retire. App. 105 ¶ 34.
Starnes married her husband despite the harassment.
Contrary to the claim as pleaded, the District Court
understood Starnes to allege that Doerr unconstitutionally
interfered with her relationship with her boyfriend (now
husband). It held that Doerr’s alleged acts showed sufficient
interference with that relationship to state an intimate
association claim. Starnes I, 2018 WL 3586835, at *4–5 (citing
Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d
435, 441–42 (3d Cir. 2000)). Because this is a civil rights case,
we must determine whether Starnes is entitled to amend her
intimate association claim. Shane v. Fauver, 213 F.3d 113, 116
(3d Cir. 2000). So we will address both the claim Starnes
pleaded and the claim construed by the District Court.
We begin with the claim as the District Court construed
it. The right to freedom of association secures “a right to
associate for the purpose of engaging in those activities
protected by the First Amendment—speech, assembly, petition

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for the redress of grievances, and the exercise of religion.”
Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). It also
protects an individual’s right “to enter into and maintain certain
intimate human relationships,” id. at 617, which is “a
fundamental element of personal liberty.” Id. at 618. But not
every intimate relationship is constitutionally protected. See
Rode v. Dellarciprete, 845 F.2d 1195, 1204 (3d Cir. 1988)
(discussing factors in determining whether a relationship has
constitutional protection). The Constitution protects “certain
kinds of highly personal relationships” with “a substantial
measure of sanctuary from unjustified interference by the
State.” Roberts, 468 U.S. at 618. These relationships include
“those that attend the creation and sustenance of a family—
marriage, . . . the raising and education of children, . . . and
cohabitation with one’s relatives.” Id. at 619. In these domains,
a plaintiff must allege conduct that interferes “directly and
substantially” with her right to form or maintain that intimate
relationship. See Zablocki v. Redhail, 434 U.S. 374, 387
(1978).
Neither the Supreme Court nor this Court has held that
unmarried, romantic partners have a fundamental right to
intimate association. Nor is there a robust consensus of
persuasive authority recognizing such a right. Compare Poirier
v. Mass. Dep’t of Corr., 558 F.3d 92, 96 (1st Cir. 2009) (“The
unmarried cohabitation of adults does not fall under any of the
Supreme Court’s bright-line categories for fundamental rights
in this area.”)) (citing Roberts, 468 U.S. at 619)), and Cameron
v. Seitz, 38 F.3d 264, 274–76 (6th Cir. 1994) (“[T]he
constitutional protection of the right of marital association did
not clearly extend to a dating relationship or to engagement.”),
with Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 58 (2d
Cir. 2014) (betrothed couples are entitled to the same intimate

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association protections as married couples), and Christensen v.
County of Boone, 483 F.3d 454, 463 (7th Cir. 2007) (unmarried
couples receive the same intimate association protections).
Thus, Doerr is entitled to qualified immunity on the
claim as construed by the District Court (that Doerr interfered
with Starnes’s intimate relationship with her husband). Despite
recognizing a gap in controlling authority, the District Court
relied on three out-of-jurisdiction opinions to hold that an
“official’s conduct intending to disrupt a marriage violates the
First Amendment.” Starnes I, 2018 WL 3586835, at *9 (citing
Christensen, 483 F.3d at 465; Griffin v. Strong, 983 F.2d 1544,
1549 (10th Cir. 1993); Gaspers v. Ohio Dep’t of Youth Servs.,
648 F.3d 400, 416 (6th Cir. 2011)).
The District Court defined the violative conduct too
broadly for qualified immunity purposes. al-Kidd, 563 U.S. at
742 (warning courts not to define clearly established law at “a
high level of generality”). While the factual circumstances of
persuasive authority need not be “directly on point for a right
to be clearly established,” White v. Pauly, 137 S. Ct. 548, 551
(2017) (per curiam) (quotations omitted), they must be
substantially similar enough that “the violative nature of [the]
particular conduct is clearly established,” al-Kidd, 563 U.S. at
742 (emphasis added). Here, a robust consensus of persuasive
authority must exist to put any reasonable official on notice
that the particular conduct of harassing a married couple in the
workplace could violate someone’s association rights.
The cases cited by the District Court do not suffice to
put the argument “beyond debate.” al-Kidd, 563 U.S. at 741.
For starters, Christensen involves an unmarried couple. 483
F.3d at 457. Second, in Griffin, the Tenth Circuit considered an
association claim brought by the subject of a police

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investigation who complained that a police officer’s lying to
the subject’s wife cost him his marriage. 983 F.2d at 1548–49
(holding that although marital association is constitutionally
protected in general, the facts were not actionable in that case).
A police officer’s dishonesty is not sufficiently similar to
harassment in the workplace. Third, in Gaspers, the Sixth
Circuit considered a case where a wife was allegedly
terminated from her position as superintendent of a
correctional facility because of her marriage to a training
officer at the same facility. 648 F.3d at 403. This is not enough
to constitute a robust consensus of caselaw to put any
reasonable official on notice that harassment violates an
employee’s association rights. See Ullery v. Bradley, 949 F.3d
1282, 1294–98 (10th Cir. 2020) (finding right clearly
established with similar reported cases from six sister circuits
and no cases holding otherwise); Turner v. Lieutenant Driver,
848 F.3d 678, 687 (5th Cir. 2017) (finding law not clearly
established with only three sister circuits).
Even had such a right been clearly established, it would
be unavailing to Starnes. She alleged that Doerr once “ran into
[her] and her future husband at a Lowes store, and remarked
that he hoped they were off the clock.” App. 72 ¶ 33. Apart
from the fact that Starnes was not married at the time this
comment was made, this type of off-hand remark is insufficient
to establish direct and substantial interference with her right to
establish or maintain that relationship. See Zablocki, 434 U.S.
at 386–87. In fact, Starnes alleged that she married her husband
despite the harassment.
We next consider Starnes’ claim as she pleaded it.
Starnes provides no support for her allegation that an
individual can violate another’s association rights by forcing
them to associate with that individual. So her claim as pleaded

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does not implicate a right that is clearly established. al-Kidd,
563 U.S. at 741. Accordingly, Doerr is entitled to qualified
immunity on Starnes’s pleaded claim.
Doerr is entitled to qualified immunity on both claims
of liability because neither the association claim Starnes
pleaded nor the one the District Court construed alleges a
violation of a clearly established right. As such, amendment
would be futile. See Fauver, 213 F.3d at 116; Grayson v.
Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002). Thus,
we will reverse the District Court’s denial of qualified
immunity on Starnes’s intimate association claim.
* * *
For the reasons stated, we will affirm in part and reverse
in part. We will affirm the District Court’s order denying Doerr
qualified immunity on Starnes’s Fourteenth Amendment equal
protection claim (Count III) and her First Amendment
retaliation claim (Count IV). We will reverse the District
Court’s order denying Doerr qualified immunity on Starnes’s
First Amendment association claim (Count II). The case will
be remanded for further proceedings consistent with this
opinion.

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