Darrell G. Ober v. PAUL J. EVANKO, MARK CAM PBELL, THOMAS COURY, JOSEPH WESTCOTT, HAWTHORNE CONLEY Paul…

*Honorable Joseph E. Irenas, Senior United States District Judge for the District of New
Jersey, sitting by designation.
NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-3725
___________
DARRELL G. OBER
v.
PAUL J. EVANKO, MARK CAM PBELL, THOMAS COURY,
JOSEPH WESTCOTT, HAWTHORNE CONLEY
Paul J. Evanko, Thomas Coury,
Joseph Westcott and Hawthorne Conley,
Appellants
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
District Judge: The Honorable William W. Caldwell
(D.C. Civil Number 01-00084)
___________
Submitted Under Third Circuit LAR 34.1(a)
July 11, 2003
BEFORE: NYGAARD and SMITH, Circuit Judges and IRENAS,* Senior District Judge.
(Opinion Filed: October 21, 2003)
___________
OPINION OF THE COURT

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IRENAS, Senior District Judge:
I.
Appellee Darrell G. Ober (“Ober”), a police officer with the Pennsylvania State
Police (“PSP”), sued Appellants, Paul Evanko, PSP Commissioner; Thomas Coury, PSP
Deputy Commissioner; Hawthorne Conley, PSP Deputy Commissioner: Joseph Westcott,
former PSP Deputy Commissioner: and Mark Campbell, former assistant chief of staff to
former Pennsylvania Governor Thomas Ridge, in the United States District Court for the
Middle District of Pennsylvania for civil rights violations under 42 U.S.C. § 1983. Ober
alleges that Appellants wrongfully retaliated against him for exercising his First
Amendment right to comment on matters of public concern when he discussed a police
corruption investigation outside the chain of command. Appellants moved for summary
judgment on qualified immunity grounds. The District Court denied Appellants’ motion,
finding that Appellants violated Ober’s clearly established First Amendment rights and,
thus, were not entitled to qualified immunity. Appellants argue, and we agree, that the
District Court erroneously denied their motion for summary judgment because the District
Court incorrectly found that Ober’s communications outside the chain of command are
protected speech. Because Ober’s speech is not protected, there is no need to decide
whether Appellants are entitled to qualified immunity. Therefore, we will reverse the
District Court’s denial of Appellants’ motion for summary judgment.

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II.
Because we write only for the District Court and the parties, who are familiar with
the facts of this case, we recite only those facts relevant to the disposition of this appeal.
In late September or early October 1998, FBI Special Agent Ralph Kush (“Kush”)
approached Darrell Ober (“Ober” or “Appellee”), then Division Director for the
Pennsylvania State Police Internal Affairs Division (“IAD”), Bureau of Professional
Responsibility (“BPR”), to discuss an FBI investigation into police corruption. Kush told
Ober that the FBI suspected Pennsylvania State Police Trooper Kipp Stanton (“Stanton”)
of taking bribes in return for rigging the cadet selection process and asked for Ober’s help
in gathering information. Kush did not tell Ober to keep the investigation secret, nor did
he indicate that any of Ober’s superiors were involved. Ober did not ask if anyone in his
division or his superiors were suspected of wrongdoing.
On October 5, 1998, shortly after his conversation with Kush, Ober bypassed the
established chain of command and spoke about the investigation with Lieutenant Colonel
Robert Hickes (“Hickes”), Deputy Commissioner of Staff. Ober’s direct supervisor at the
time was Major Hawthorne Conley (“Conley”). Under State Police Field Regulation 1-
1.17B, PSP members are required to “promptly report to their supervisors any
information which comes to their attention and which tends to indicate that any other
member or employe [sic] has violated any law, rule, regulation or order.” Ober never
discussed the investigation or his conversations with Kush with Major Conley. Hickes

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told Ober not to tell anyone else about the investigation and to keep him updated.
Approximately seven months later, on May 12, 1999, Ober and Hickes finally
informed PSP Commissioner Paul Evanko (“Evanko”) about the FBI probe. At that
point, the FBI had completed its investigation and determined that Stanton was the sole
Trooper engaged in wrongdoing. Evanko subsequently conducted an administrative
inquiry into Ober’s and Hickes’ conduct regarding the investigation, although neither
Ober nor Hickes was disciplined.
Over the next several months Ober alleges that Appellants took numerous adverse
actions against him in retaliation for his decision to circumvent the chain of command
including removing Ober from volunteer positions, investigating his off-duty activities,
denying him educational opportunities, assigning Ober to undesirable positions, and
failing to promote him to the rank of major. None of these actions, however, affected
Ober’s rank, pay, benefits or status.
III.
The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331 and 42
U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291 to review the District
Court’s denial of summary judgment. See Behrens v. Pelletier, 516 U.S. 299, 306 (1996)
(noting that “a district court’s denial of a claim of qualified immunity, to the extent that it
turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C.

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§ 1291”) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). Our review is de novo.
See Carrasca v. Pomeroy, 313 F.3d 828, 832 (3d. Cir. 2002); Baldassare v. New Jersey,
250 F.3d 188, 192 n.1 (3d Cir. 2001); Brown v. Armenti, 247 F.3d 69, 72 (3d Cir. 2001);
Witkowski v. Welch, 173 F.3d 192, 198 (3d. Cir. 1999). In conducting our review, we
view the facts in the light most favorable to the non-moving party. Baldassare, 250 F.3d
at 191 n.1, 3. Therefore, in making a determination as to whether Appellants are entitled
to qualified immunity, we will make an independent determination as to “whether the
facts identified . . . constitute a violation of a clearly established constitutional right.”
Atkinson v. Taylor, 316 F.3d 257, 261 (3d Cir. 2003) (internal citation omitted).
IV.
A.
Qualified immunity shields “government officials performing discretionary
functions . . . from liability from civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would
have known.” Wilson v. Layne, 526 U.S. 603, 614 (1999); Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). This doctrine protects defendants from “unwarranted liability” and
the “unwarranted demands customarily imposed upon those defending a long drawn-out
lawsuit.” Wilson, 526 U.S. at 609; see also Seigert v. Gilley, 500 U.S. 226, 232 (1990)
(noting that determinations of qualified immunity “permit[] courts expeditiously to weed
out suits which fail the test without requiring a defendant who rightly claims qualified

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immunity to engage in expensive and time consuming preparation to defend the suit on its
merits”).
We conduct a two-part inquiry to determine if a defendant is entitled to qualified
immunity. First, we “determine whether the plaintiff has alleged the deprivation of an
actual constitutional right at all.” Conn v. Gabbert, 526 U.S. 286, 290 (1999); see also
County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998); Siegert, 500 U.S. at 232.
If there is no constitutional right at issue, the inquiry ends. If, however, we find a
constitutional right, we “proceed to determine whether that right was clearly established
at the time of the alleged violation.” Conn, 526 U.S. 290. A clearly established right
exists where “the contours of the right [are] 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). “Deciding the constitutional question before addressing the
qualified immunity question” not only provides a clear framework for the judiciary, but
also “promotes clarity in the legal standards for official conduct.” Wilson, 526 U.S. at
609. Therefore, we first must determine if Ober alleges a deprivation of an actual
constitutional right. We find that he does not and, thus, we need not address the second
prong of the inquiry.
B.
Ober claims that he was retaliated against for exercising a First Amendment right
to bypass the chain of command when discussing a police corruption investigation. It is

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clear that “[p]ublic employee[s] [have] a constitutional right to speak out on matters of
public concern without fear of retaliation.” Baldassare, 250 F.3d at 194; see also
Pickering v. Board of Education, 391 U.S. 563, 568 (1968) (noting that “[e]mployees of
federal and state government do not relinquish their First Amendment rights to comment
on matters of public interest as a condition of their government employment”). To
establish the existence of this right, employees must show that: (1) they engaged in
protected speech; (2) their speech was the motivating or substantial factor for the alleged
retaliation; and (3) defendant employer must be unable to show, by a preponderance of
the evidence, that the employer would have taken the same action even in the absence of
the protected speech. Baldassare, 250 F.3d at 194-95. To determine if an employee
engaged in protected speech, we apply two-part balancing test established by the United
States Supreme Court in Pickering v. Board of Education. 391 U.S. 563 (1968).
Under Pickering, speech is protected if the interests of the public employee “in
commenting upon matters of public concern” outweigh “the interest of the State, as an
employer, in promoting the efficiency of the public services it performs through its
employees.” Pickering, 391 U.S. at 568. If the balance weighs in favor of the employer,
the speech is unprotected. See Azzaro v. County of Allegheny, 110 F.3d 968, 980 (3d Cir.
1997) (en banc) (noting that speech is unprotected where the government’s interest in
“effective and efficient provision of services” outweighs the interest of the employee and
the public in speaking). Matters of public concern are those that can “be fairly considered

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as relating to any matter of political, social or other concern to the community.” Green v.
Philadelphia Hous. Auth., 105 F.3d 882, 885-86 (3d Cir. 1997). These issues are
questions of law for the court, Baldassare, 250 F.3d at 195, and our analysis requires that
we examine the “the content, form, and context of a given statement based upon the
record as a whole.” Connick v. Myers, 461 U.S. 138, 148 (1983).
Before we turn to the application of the Pickering test in this case, however, we
must first address Ober’s actions. In bypassing the chain of command and speaking to
Hickes instead of Conley, Ober engaged in the type of communication traditionally
considered speech for First Amendment retaliation purposes. Ober also made a decision,
however, not to speak with Conley or any of his superiors in the chain of command. This
failure to speak is not expressive conduct protected under the First Amendment. For the
purposes of this case, however, we view Ober’s silence and speech jointly and
characterize Ober’s claim as one of retaliation for speaking outside the chain of
command.
Under Pickering’s first step, there is little doubt that speech regarding alleged
police corruption is a matter of public concern, particularly given the vital role state
police play in promoting public safety and enforcing and upholding the laws. See
Baldassare, 250 F.3d at 197 (stating that matters of public concern include “allegations of
corrupt practices by government officials”) (quoting O’Donnell v. Yanchulis, 875 F.2d
1059, 1061 (3d Cir. 1989)); see also Swineford v. Snyder County Pa., 15 F.3d 1258, 1271

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(3d Cir. 1994). Therefore, Ober’s communications with Hickes about the FBI
investigation satisfy the first step of the Pickering balancing test. Turning to the second
element of the Pickering test, we examine the context in which Ober spoke and the
government’s interest in regulating when and to whom he speaks.
Pickering’s second prong requires “a fact-sensitive and deferential weighing of the
government’s legitimate interests” in regulating a public employee’s speech. Bd. of
County Comm’r v. Umbehr, 518 U.S. 668, 677 (1996). Governmental interests
underlying the regulation of employee speech may include “whether the statement impairs
discipline by supervisors or harmony among co-workers, has a detrimental impact on
close working relationships for which personal loyalty and confidence are necessary, or
impedes the performance of the speaker’s duties or interferes with the regular operation
of the enterprise.” Swartzwelder, 297 F.3d at 235 (citing Rankin v. McPherson, 483 U.S.
378, 388 (1987)). Courts have given law enforcement agencies wide latitude to regulate
an employee’s speech when that speech impacts on areas such as discipline, morale,
harmony, uniformity, and trust in the ranks. See Kelley v. Johnson, 425 U.S. 238, 246
(1976) (noting that police departments need significant flexibility to make decisions that
affect “discipline, esprit de corps, and uniformity”); Oladeinde v. City of Birmingham,
230 F.3d 1275, 1293 (11th Cir. 2000) (recognizing the “heightened need for order,
loyalty, morale, and harmony, which affords a police department more latitude in
responding to the speech of its officers than other government employers”); O’Donnell v.

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Barry, 148 F.3d 1126, 1135 (D.C. Cir. 1998) (stating that due to the “special degree of
trust and discipline required in a police force there may be a stronger governmental
interest in regulating speech of police officers than in regulating the speech of other
governmental employees”); Campbell v. Towse, 99 F.3d 820, 829-30 (7th Cir. 1996)
(noting the special need of law enforcement superiors to be assured that their subordinates
will be loyal and will carry out orders); Moore v. Wynnewood, 57 F.3d 924, 934 (10th Cir.
1995) (finding that law enforcement has a “heightened interest” in maintaining discipline
and harmony).
The facts at hand present precisely the type of situation in which latitude should be
given to the state police. Ober did not simply speak about suspected corruption, when he
spoke, he chose to speak to someone outside his chain of command. In doing so, Ober
violated an established PSP regulation requiring PSP members to promptly report, to their
superiors, any suspected wrongdoing by other members. These regulations are designed
to promote efficiency and trust, to maintain order and discipline, and to effectively alert
superiors to potential problems or wrongdoing. The need to enforce compliance with
these regulations in this case far outweighs Ober’s interest in violating them. Ober fails
to present a persuasive reason for circumventing the chain of command by speaking with
Hickes instead of Major Conley. While it is possible that bypassing the chain of
command might be justified if an officer’s superiors were reasonably suspected of
wrongdoing, nothing in Ober’s conversation with Kush or elsewhere in the record

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suggests that Conley, Conley’s superiors, or Commissioner Evanko were involved in
Stanton’s scheme or could not be trusted. Ober was required by regulation to report his
conversation to his supervisor; his decision to go outside of the appropriate hierarchy is
not a constitutionally protected free speech right given the strong governmental interest in
having that regulation followed.
Under Pickering, the balance of interests in the instant case clearly favors the
State. Appellee Ober fails to show that his interests in communicating about the
investigation outside the chain of command outweigh the State’s interest in maintaining
order, trust, discipline and efficient communication. Therefore, Ober did not engage in
protected speech and, consequently, fails to satisfy the first element of a First Amendment
retaliation claim. Because Ober cannot show he had a constitutional right to bypass the
chain of command, there is no need to decide whether Appellants are entitled to qualified
immunity. Therefore, we reverse the District Court’s denial of Appellants’ motion for
summary judgment.
V.
For the aforementioned reasons, we will reverse the District Court’s denial of
Appellants’ motion for summary judgment and remand the case to the District Court for
action consistent with this Opinion.

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TO THE CLERK:
Please file the foregoing Opinion
By the Court:
/s/ Joseph E. Irenas
Senior District Judge

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