UNPUBLISHEUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT L. CUTTS; JABAR SHABAZZ,
Plaintiffs-Appellees,
and
GWENDOLYN B. BELL,
Plaintiff,
v.
CARL R. PEED, Sheriff of Fairfax
County Virginia, in his individual
and official capacity,
Defendant-Appellant,
and
No. 00-1071
SHERIFF'S DEPARTMENT, for the
County of Fairfax, Virginia; JAMES
A. VICKERY, Chief Deputy Sheriff,
The Sheriff's Department for the
County of Fairfax, Virginia, in his
individual and official capacity;
LARRY GERBER, Captain of
Confinement, The Sheriff's
Department for the County of
Fairfax, Virginia, in his individual
and official capacity,
Defendants.
ROBERT L. CUTTS; JABAR SHABAZZ;
GWENDOLYN B. BELL,
Plaintiffs-Appellants,
v.
CARL R. PEED, Sheriff of Fairfax
County Virginia, in his individual
and official capacity; JAMES A.
VICKERY, Chief Deputy Sheriff, The
Sheriff's Department for the County
of Fairfax, Virginia, in his
individual and official
capacity;
No. 00-1194
LARRY GERBER, Captain of
Confinement, The Sheriff's
Department for the County of
Fairfax, Virginia, in his individual
and official capacity,
Defendants-Appellees,
and
SHERIFF'S DEPARTMENT, for the
County of Fairfax, Virginia,
Defendant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-99-689-A)
Argued: December 4, 2000
Decided: August 24, 2001
Before WIDENER and MOTZ, Circuit Judges, and
Robert E. PAYNE, United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
2
No. 00-1071 affirmed and No. 00-1194 dismissed by
unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: John J. Brandt, James R. Parrish, BRANDT,
JENNINGS,
ROBERTS, DAVIS & SNEE, P.L.L.C., Falls Church, Virginia, for
Appellant. Tim Schulte, Thomas Hunt Roberts, THOMAS
H. ROBERTS
& ASSOCIATES, P.C., Richmond, Virginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this
circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
This appeal and cross-appeal concern claims of
employment discrimination
in violation of 42 U.S.C. § 1981 (1994), hostile work
environment in violation of 42 U.S.C. § 2000e(b)
(1994), and retaliation
in violation of 42 U.S.C. §§ 1983 (1994) and 2000e-3
(1994).
African-American Fairfax County deputy sheriffs Robert
Cutts, Jabar
Shabazz, and Gwendolyn Bell sue Sheriff Carl R. Peed in
his individual
and official capacity on all counts; they join as
defendants in the
employment discrimination claim two other officials in
the Sheriff's
office. The district court granted Sheriff Peed summary
judgment on
all retaliation claims, except Cutts's and Shabazz's
claims of retaliatory
discharge. The court also granted summary judgment to
all
defendants on all employment discrimination and hostile
work environment
claims. Sheriff Peed now appeals and the deputies
crossappeal.
We affirm the denial of summary judgment appealed by
Sheriff
Peed and dismiss the cross-appeal.1
_________________________________________________________________
1 Because the district court set forth the underlying
facts in detail, we
need only refer to them as necessary in the legal
discussion that follows.
3
I.
We first address the retaliation claims. The deputies
have alleged
two categories of retaliation claims. We consider each
in turn.
A.
In Counts IV through VI, the deputies state claims under
§ 1983
alleging that the Sheriff violated the First Amendment
by firing them
for legitimate speech on a matter of public concern. In
assessing
whether the Sheriff is, as he maintains, entitled to
qualified immunity,
we must first determine whether the deputies have
alleged a violation
of constitutional rights. For a public employee to state
a claim for
retaliation under the First Amendment (1) the employee
must speak
as a citizen on a matter of public concern, (2) the
employee's interest
in speaking on the matter must outweigh the government's
interest in
providing effective and efficient services to the
public, (3) the
employee must be "adversely affected" by the
alleged retaliation in a
manner that "tend[ed] to chill his . . . First
Amendment rights" and
(4) the speech must be a "substantial factor in the
decision to take the
allegedly [adverse] retaliatory action." Goldstein
v. Chestnut Ridge
Volunteer Fire Co., 218 F.3d 337, 351-52 (4th Cir.
2000).
Ascertaining whether a matter is of public concern
requires examination
of the "content, form, and context" of the
statement. Connick
v. Myers, 461 U.S. 138, 147-48 (1983); Goldstein, 218
F.3d at 352.
Although internal employment matters are not matters of
public concern,
see Goldstein, 218 F.3d at 352, statements to the
public, like
those at issue here, involving purported fraud and
racial discrimination
in a law enforcement agency, indisputably do constitute
matters
of public concern. See id. at 353 (statements regarding
public safety
are "quintessential matters of public
concern"); Robinson v. Balog,
160 F.3d 183, 188 (4th Cir. 1998) (speech seeking to
bring to light
"actual or potential wrongdoing or breach of public
trust" is speech
on a matter of public concern); Cromer v. Brown , 88
F.3d 1315, 1326
(4th Cir. 1996) (allegations of racial discrimination
within law
enforcement agency are matters of "serious public
import").2
_________________________________________________________________
2 Sheriff Peed incorrectly characterizes the issue as
whether the deputies
had a First Amendment right to "make knowingly
false or reckless
4
Because the deputies' speech involves a matter of public
concern,
we turn to the question of whether their interest in
making those statements
outweighed Sheriff Peed's interest in managing the
internal
affairs of his office. The Sheriff contends that the
undisputed facts
demonstrate that he was justified in taking all of the
challenged
actions -- including discharging Cutts and Shabazz-- to
protect his
office's efficiency from the disruption caused by the
deputies' complaints.
Undoubtedly, charges of racial discrimination may
impinge
upon the harmony among co-workers or interfere with the
operation
of a sheriff's office. The record here, however,
provides little evidence
that this actually occurred, or that the racially
charged environment
in the sheriff's office stemmed from these employees'
remarks
rather than other people or events.
An employer wishing to defend against specific
allegations of
impermissible retaliation must present evidence that the
speech triggering
his actions actually interfered with the functioning of
his
office, and may not merely assert a "generalized
and unsubstantiated"
interest against disruptions. Goldstein, 218 F.3d at
356; Robinson,
160 F.3d at 189. The Sheriff has put forth only
speculative and unsubstantiated
charges of office disruption. Moreover, the government's
interest in efficiency generally bears more weight than
an employee's
interest in commenting on matters of public concern only
when the
employee-speaker is an agency-head or is in a policy
making position.
See McVey v. Stacy, 157 F.3d 271, 278-79 (4th Cir.
1998). The deputies
were low ranking law enforcement officers without policy
making
authority. Accordingly, at this juncture, the deputies
have alleged
sufficient facts to satisfy the second prong of a
retaliation claim.
As to the third and fourth prongs, that the speech was a
substantial
factor resulting in an adverse action tending to chill
First Amendment
rights, we agree with the district court that the
discharges of Cutts and
Shabazz are the only truly adverse actions giving rise
to retaliation
_________________________________________________________________
statements about racial issues." In determining
whether a right is clearly
established for the purposes of qualified
immunity"a court examines the
facts alleged by the plaintiff, not those asserted by
the defendant."
Buonocore v. Harris, 65 F.3d 347, 357 (4th Cir. 1995).
"[D]efendants
cannot demonstrate that . . . allegations do not state a
violation of clearly
established law simply by substituting their own version
of the facts." Id.
5
claims. To constitute actionable retaliation, conduct
must adversely
impact First Amendment rights. See Suarez Corp. Indus.
v. McGraw,
202 F.3d 676, 685 (4th Cir. 2000). De minimis actions do
not constitute
adverse action for purposes of a First Amendment
retaliation
claim. Id. at 686.
We must next determine whether the Sheriff is
nonetheless entitled
to qualified immunity on the retaliatory discharge
claims. He is not
entitled to such immunity if (1) the violation of the
deputies' constitutionally
protected rights was clearly established at the time of
the
challenged acts and (2) a reasonable official would have
understood
that his conduct violated that clearly established law.
See Henderson
v. Simms, 223 F.3d 267, 271 (4th Cir. 2000). In this
case, the law was
clearly established; Connick and its balancing test were
the law long
before 1998 when the challenged conduct took place.
Moreover, we
agree with the district court that, if the deputies are
able to prove their
allegations, this
is the rare case in which a reasonable official in the
Sheriff's
position would have understood that such conduct violated
clearly
established law. Accordingly, we affirm the district court's
refusal to grant Sheriff Peed summary judgment on
qualified immunity
grounds on Cutts's and Shabazz's retaliatory discharge
claims
alleged in Counts IV through VI of their complaint.
Likewise, we
affirm the grant of summary judgment on qualified
immunity grounds
on their other retaliation claims and on all retaliation
claims asserted
by Bell, who was never discharged.
B.
In Count III, the deputies alleged that, by retaliating
against them
for protected activity, the Sheriff also violated Title
VII. Although
this claim is
similar to the § 1983 claims, contrary to the parties'
apparent belief,
the Sheriff is entitled to qualified immunity only with
respect to the
claims brought under § 1983; there is no qualified
immunity from
liability under Title VII. See, e.g., Genas v. New York
Dep't of Correctional Servs., 75 F.3d 825, 829 n.3 (2d
Cir. 1996);
Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.
1991); Harvey
v. Blake, 913 F.2d 226, 228 (5th Cir. 1990). Thus,
summary judgment
on the basis of qualified immunity would be improper as
to the Title
VII claim set forth in Count III. Accordingly, we affirm
the district
6
court's refusal to grant qualified immunity on this
claim, albeit for
different reasons than those relied on by the district
court.
II.
We next address the deputies' cross-appeal in which they
contend
that the district court erred in granting summary
judgment on their
employment discrimination claims (Court I) and hostile
environment
claims (Count II). We refuse to exercise disfavored
pendent appellate
jurisdiction to consider the cross-appeal; we note that
the issues
involved in the cross-appeal are not "inextricably
intertwined" with
the appealable order. Swint v. Chambers County Comm'n,
514 U.S.
35, 51 (1995); see also Armijo v. Wagon Mound Public
Schs., 159
F.3d 1253, 1265 (10th Cir. 1998) (refusing to exercise
pendent appellate
jurisdiction to consider cross-appeal in case in which
proper interlocutory
appeal on qualified immunity is before the court);
Erickson
v. Holloway, 77 F.3d 1078, 1081 (8th Cir. 1996) (same);
Woods v.
Smith, 60 F.3d 1161, 1167 (5th Cir. 1995) (same). We
therefore dismiss
the cross-appeal.
III.
In sum, we affirm the district court's judgment denying
qualified
immunity to Sheriff Peed on Cutts's and Shabazz's
retaliation claims
under § 1983, which are set forth in Counts IV through
VI of the
complaint, and on the retaliation claim under Title VII,
which is set
forth in Count III. We dismiss the deputies'
cross-appeal as to the district
court's judgment on Counts I and II.
No. 00-1071 - AFFIRMED
No. 00-1194 - DISMISSED
7