Limiting Public Employee First Amendment Retaliation: Public Concern and Employer Knowledge Requirements

Introduction

Nancy E. Lewen v. Pennsylvania Soldiers and Sailors Home presented the Third Circuit with a pro se plaintiff’s challenge to her 2016 termination from the Pennsylvania Soldiers’ and Sailors’ Home (“PSSH”). Lewen, a licensed practical nurse, had sent personal and work-related Facebook messages to a coworker, filed a “Witness Statement” accusing a supervisor of bullying, made alarmist comments about potential “bloodshed,” and submitted whistleblower complaints to state authorities. After an administrative review, PSSH Commandant Barbara Raymond fired her for “intimidating, threatening and inappropriate conduct.” Lewen’s subsequent federal lawsuit asserted wrongful termination, First Amendment retaliation, whistleblower protection, and related claims against Raymond and multiple state agencies and officials.

Key issues before the Third Circuit included: (1) whether Lewen’s Facebook messages and workplace complaints implicated matters of “public concern” under the First Amendment; (2) whether there was any causal link between her protected activity and her firing; and (3) whether the district court correctly granted motions to dismiss most defendants on immunity grounds and granted summary judgment to Commandant Raymond on the sole surviving First Amendment claim.

Summary of the Judgment

On June 5, 2025, the Third Circuit affirmed the district court in all respects. It held:

Lewen forfeited any challenge to the district court’s dismissal of most defendants based on various immunities by failing to argue those points in her opening brief.
Her Facebook messages, “Witness Statement,” and violent-sounding remarks were personal grievances rather than matters of public concern, so they fell outside First Amendment protection for public employees.
Even assuming her anonymous and confidential whistleblower complaints qualified as protected speech, there was no evidence that Commandant Raymond or PSSH knew of those complaints at the time of termination, defeating any causal-link requirement for retaliation.
Because Lewen could not satisfy both “public concern” and “employer knowledge” prerequisites for a First Amendment retaliation claim, the court affirmed summary judgment for the Commandant.

Analysis

Precedents Cited

Pickering v. Board of Education (391 U.S. 563, 1968): Established the “public concern” and balancing test for public-employee speech.
Dougherty v. School District of Philadelphia (772 F.3d 979, 2014): Clarified the three-step framework for First Amendment retaliation claims—protected speech, causal link, and employer’s defense.
Gorum v. Sessoms (561 F.3d 179, 2009): Emphasized the citizen vs. employee-capacity distinction and need for “adequate justification” by employer under Pickering.
Miller v. Clinton County (544 F.3d 542, 2008) & De Ritis v. McGarrigle (861 F.3d 444, 2017): Defined “matter of public concern” by examining content, form, and context of speech.
Palardy v. Township of Millburn (906 F.3d 76, 2018) & Munroe v. Central Bucks School District (805 F.3d 454, 2015): Held that personal employment grievances are not public concern.
Lane v. Franks (573 U.S. 228, 2014): Recognized whistleblower testimony on public corruption as prototypical public-concern speech.
Adams v. County of Sacramento (116 F.4th 1004, 9th Cir. 2024): Private texts between coworkers held non-public concern.
Sanguigni v. Pittsburgh Board of Public Education (968 F.2d 393, 1992): Reiterated that mundane employment grievances fail First Amendment protection.
Thomas v. Independence Township (463 F.3d 285, 2006): Reinforced the need for a causal link between protected speech and adverse action.

Legal Reasoning

The Third Circuit applied plenary review to the dismissal and summary judgment orders. It first addressed forfeiture: under In re Wettach, a litigant who omits an argument in her opening brief generally forfeits it. Lewen’s “generic” request for relief did not preserve her immunity arguments.

Turning to the First Amendment claim, the court employed the Pickering framework as refined in Dougherty:

Protected speech as citizen: Speech must address public—rather than purely personal—grievances. The plaintiff’s Facebook messages (romantic overtures, mundane job complaints), her “Witness Statement” (framed as a personal joke), and references to violence were all private, self-focused communications. Under Miller and Palardy, they implicated no legitimate public interest.
Causal link: Even if her anonymous whistleblower filings could be deemed public-concern speech, no one at PSSH—including Commandant Raymond—knew of them when they decided to fire Lewen. Absent employer knowledge, there is no evidence that the protected conduct motivated the firing. Thomas requires proof that the employer was aware of the speech.
Employer defense: Because Lewen failed to make the first two showings, the court did not need to reach the Pickering balancing test or commandant’s justification.

Impact

This decision clarifies two important points for future litigation:

Public employees cannot bootstrap private, interpersonal communications or purely personal workplace complaints into First Amendment claims. Courts will closely parse content, form, and context to determine public-concern status.
Whistleblower or other protected activity that the employer does not know about at the time of adverse action cannot support a retaliation claim. Awareness of the speech or conduct is a non-waivable, threshold element.

The case thus tightens the scope for pro se and represented public employees seeking First Amendment protection, and reinforces rigorous application of summary judgment when no genuine factual dispute exists on those elements.

Complex Concepts Simplified

Public Concern vs. Personal Grievance: Speech about broader social, political, or policy issues is protected. Private complaints—“My boss yelled at me”—are not.
Pickering Balancing Test: Courts weigh the employee’s free‐speech interest against the employer’s interest in efficient operations.
Summary Judgment: A court’s ruling, without a trial, when no important facts are in dispute and one side is entitled to win as a matter of law.
Forfeiture of Appellate Arguments: If you don’t argue an issue in your opening brief, you usually lose the right to raise it later.
Pro Se Litigant: A person who represents themselves without a lawyer. They must still follow the same procedural rules as lawyers.

Conclusion

Nancy Lewen v. Pennsylvania Soldiers and Sailors Home reaffirms that public‐employee speech must address matters of real public concern—and the employer must know of that speech—to support a First Amendment retaliation claim. The Third Circuit’s decision underscores careful precedent analysis, the strict application of forfeiture rules, and the necessity of clear evidentiary links between protected conduct and adverse action. As a guide for practitioners and litigants, this ruling narrows the ambit of protected speech in the government‐employment context and reinforces the procedural thresholds for sustaining retaliation claims.