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Media Alerts - Joseph De Ritis v. Thomas McGarrigle - Third Circuit
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July 5, 2017
  Joseph De Ritis v. Thomas McGarrigle - Third Circuit
Headline: Third Circuit Finds Employee Speech Unprotected by the First Amendment; Qualified Immunity is Granted to Supervisor.

Area of Law: Qualified immunity; First Amendment rights

Issue(s) Presented: Are comments made by attorney to colleagues in and out of the courtroom protected under the First Amendment? If so, does a supervisor who terminated the employee from his position receive qualified immunity?

Brief Summary:

Joseph De Ritis was an Assistant Public Defender, working in the office of Public Defender, Douglas C. Roger. After Roger transferred De Ritis to a different unit, De Ritis started to spread a rumor that he was being punished for taking too many cases to trial. On multiple occasions, he expressed these thoughts with colleagues and judges, both in and out of the courtroom. When Roger caught wind of this rumor, he fired De Ritis for his conduct.

The Third Circuit reversed the District Court's denial of Roger's motion for summary judgment, holding that De Ritis's comments in court were employee speech not protected by the First Amendment; and Roger was entitled to qualified immunity for any violation of the First Amendment based on De Ritis's comments to two municipal officials out of court.

Extended Summary:

Joseph DeRitis sued his former boss, Public Defender Douglas C. Roger, claiming that Roger terminated him in violation of his right to free speech. De Ritis had worked as an Assistant Public Defender under Roger for seven years, moving up to a trial unit. In June 2012, De Ritis was informed that he would need to be transferred back to the juvenile court unit due to staffing issues. De Ritis asked colleagues about the real reason for his transfer, and got the impression that he was transferred because he was bringing too many cases to trial and that this was against the office ideal of moving cases by getting guilty pleas. There was no real evidence to support these accusations, just hearsay.

De Ritis repeated this rumor to his colleagues, judges, and other attorneys over many months. Eventually De Ritis approached Michael Maddren, Country Solicitor and Thomas McGarrigle, chairman of the County Council. DeRitis wanted them to investigate his claims, but neither pursued the matter much further. By May 2013, Roger became aware, through Judge Klein, of the allegations that were being made against him. When confronted by Roger, De Ritis acknowledged all of the individuals to whom he spread these rumors. In response, Roger fired De Ritis. The District Court denied Roger's motion for summary judgment in which he claimed qualified immunity as a public official.

The Third Circuit reversed. It held that De Ritis's comments to colleagues and judges in court were employee speech and not protected by the First Amendment under the applicable three prong test. First, DeRitis's actions were not protected because the speech was within the regular scope of his duties as an employee. Thus he was not protected as he would have been if "he spoke as a citizen, not an employee, if his speech involved a matter of public concern, and if Roger lacked an adequate justification for treating him differently than the general public."

Under the second-prong, the Court analyzed whether De Ritis's out of court speech related to a matter that was valuable and generally relevant to the public. The Court noted that speech that focused on the individual employee's problems, even if there was a potential for public concern, would be viewed as a "personal grievance." De Ritis's out of court statements to other attorneys were not a matter of public concern because these statements were only directly related to De Ritis's own grievance. However, the Court found that the statements made to Maddren and McGarrigle were addressed towards public concern requiring analysis under the third prong. De Ritis expressed some concern for potential violation of the constitutional rights of his clients.

In analyzing the third-prong, the Court balanced De Ritis's interests with the interest of Roger as a state official and found that De Ritis's comments tended to be geared more towards his own individual concern than any public concern. He sought action for himself but failed to follow-up on protecting any rights of his clients. The Court determined that statements made by De Ritis could have seriously hindered the work environment and thus his interests were outweighed by Roger's strong interest in protecting the work environment and promoting positive work performance. At minimum, Roger was entitled to qualified immunity as any right De Ritis had under the First Amendment was not clearly established.

The Third Circuit reversed the District Court's denial of qualified immunity and remanded for further proceedings.

The full opinion can be found at

Panel: Vanaskie, Krause, and Nygaard, Circuit Judges.

Argument Date: January 17, 2017

Date of Issued Opinion: June 29, 2017

Docket Number: No. 16-1433

Decided: Reversed and remanded

Case Alert Author: Kristina Flatley

Counsel: Joseph De Ritis, Counsel for Appellee; Mark A. Raith, Counsel for Appellant

Author of Opinion: Circuit Judge Krause

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/05/2017 12:19 PM     3rd Circuit  

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