Kirby v. City of Elizabeth City , 388 F.3d 440 ( 2004 )

ON REHEARING
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CARL EDWARD KIRBY, 
Plaintiff-Appellant,
v.
CITY OF ELIZABETH CITY, North
Carolina, a municipal corporation;
TREVOR HAMPTON, in his official
capacity and individually; FRANK
KOCH, individually and in his
official capacity,
Defendants-Appellees.
NATIONAL ASSOCIATION OF POLICE  No. 03-2035
ORGANIZATIONS; FRATERNAL ORDER OF
POLICE; PROFESSIONAL FIREFIGHTERS
& PARAMEDICS OF NORTH CAROLINA;
NORTH CAROLINA ASSOCIATION OF
EDUCATORS; NORTH CAROLINA
ACADEMY OF TRIAL LAWYERS,
Amici Supporting Appellant,
NORTH CAROLINA ASSOCIATION OF
COUNTY COMMISSIONERS; NORTH
CAROLINA SCHOOL BOARDS
ASSOCIATION,
Amici Supporting Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Terrence W. Boyle, Chief District Judge.
(CA-01-46-BO)
2 KIRBY v. CITY OF ELIZABETH CITY
Argued: June 3, 2004
Decided: November 3, 2004
Before WILKINS, Chief Judge, WILLIAMS, Circuit Judge,
and David R. HANSEN, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by published opinion. Chief Judge Wilkins wrote the opin-
ion, in which Judge Williams and Senior Judge Hansen joined.
COUNSEL
ARGUED: Joseph Michael McGuinness, Elizabethtown, North Caro-
lina, for Appellant. Norwood Pitt Blanchard, III, CRANFILL, SUM-
NER & HARTZOG, L.L.P., Raleigh, North Carolina, for Appellees.
ON BRIEF: Patricia L. Holland, Rachel K. Esposito, CRANFILL,
SUMNER & HARTZOG, L.L.P., Raleigh, North Carolina, for Appel-
lees. William J. Johnson, NATIONAL ASSOCIATION OF POLICE
ORGANIZATIONS, INC., Washington, D.C., for NAPO; Richard
Hattendorf, FRATERNAL ORDER OF POLICE, Charlotte, North
Carolina, for FOP; M. Travis Payne, EDELSTEIN AND PAYNE,
Raleigh, North Carolina, for Professional Fire Fighters and Parame-
dics of North Carolina and North Carolina Academy of Trial Law-
yers; John W. Gresham, FERGUSON STEIN CHAMBERS,
Charlotte, North Carolina, for North Carolina Association of Educa-
tors, Amici Supporting Appellant. James B. Blackburn, III, NORTH
CAROLINA ASSOCIATION OF COUNTY COMMISSIONERS,
Raleigh, North Carolina, for NCACC; Allison Brown Schafer,
NORTH CAROLINA SCHOOL BOARDS ASSOCIATION,
Raleigh, North Carolina, for NCSBA; M. Daniel McGinn, BROOKS,
PIERCE, McLENDON, HUMPHREY & LEONARD, L.L.P.,
Greensboro, North Carolina, for Amici Supporting Appellees.
KIRBY v. CITY OF ELIZABETH CITY 3
OPINION
WILKINS, Chief Judge:
Carl Edward Kirby appeals a district court order granting summary
judgment against him in his action against the City of Elizabeth City,
North Carolina ("City"); City Police Chief Trevor Hampton; and City
Police Lieutenant Frank Koch (collectively, "Appellees") in which
Kirby asserts that he was retaliated against based on the content of his
truthful testimony at a public hearing and based on his subsequent
challenges to that alleged retaliation. We affirm the district court
order, although partly on grounds different from those relied on by the
district court.
I.
Kirby is employed by the City as a police officer. On July 19,
2001, Kirby testified at a hearing before a City Personnel Appeals
Committee concerning a grievance filed by fellow City police officer
James Henning. The grievance challenged discipline imposed against
Henning for damaging a patrol vehicle ("Car 127") by driving it with
too little transmission fluid. At the hearing, Kirby recounted the main-
tenance history and transmission fluid capacity of Car 127, provided
his opinion of Henning’s maintenance and driving habits, and
explained how transmission leaks are diagnosed. Kirby maintains that
Hampton and Koch were angered by his testimony, which they per-
ceived to undercut Hampton’s position and support Henning’s.
Following his testimony, Kirby left the police station at about 1:30
p.m. to begin a previously scheduled vacation. When Kirby returned
to work, he learned that he had received an "oral reprimand" for
"[f]ailure to support the Department’s Administration." J.A. 44. Kirby
claims that he was reprimanded because his hearing testimony con-
flicted with Hampton’s. However, Appellees insist that the reprimand
was based not on the substance of Kirby’s testimony but on Kirby’s
failure to follow proper procedures before testifying. Specifically,
Appellees assert that an employee scheduled to be on duty when he
will be testifying is required to provide advance notice to the City’s
Human Resources Department so that another officer may be
assigned to cover the employee’s duties. Kirby denies that he had any
4 KIRBY v. CITY OF ELIZABETH CITY
duty to notify Human Resources. On this basis, he filed a grievance
challenging the punishment.1 He also initiated the present action on
August 31, 2001, alleging that the reprimand was in retaliation for his
testimony.
On September 4, 2001, Kirby received notice that Hampton had
demoted him from Sergeant to Police Officer III. Appellees claim that
the demotion was because of Kirby’s poor job performance and that
an audit of cases assigned to Kirby’s Investigative Bureau over the
first six months of 2001 showed that in 61 of the 377 cases, the inves-
tigation did not comply with applicable policies and procedures. In
particular, several case files did not contain supplements updating
progress in the investigations even though such supplements were
required to be completed weekly. Kirby contends that the supplement
policy had not previously been enforced and that supplements in some
of the identified cases were not required by the policy or could not
be completed. Kirby thus amended his complaint in the present action
on September 21, 2001, to add claims related to his demotion.
As amended, Kirby’s complaint alleges that Appellees’ retaliation
based on his testimony violated his constitutional rights to free
expression and association, as well as his right to freedom from the
imposition of unconstitutional conditions on his public employment.2
The complaint further asserts that the retaliation violated his Four-
teenth Amendment liberty interest in testifying truthfully and denied
him equal protection under the law. It also alleges that the reprimand
violated Kirby’s equal protection rights because it constituted dispa-
rate treatment with no rational basis. Finally, the complaint alleges
that Kirby’s demotion in retaliation for his filing the grievance and
initial complaint violated his freedom to petition for redress of griev-
ances.
1
Kirby also challenged another reprimand he received when he
returned from vacation. However, he withdrew that challenge after filing
the present action.
2
Kirby contends that "[Appellees’] conduct has implicitly commanded
that [Kirby] not testify truthfully, which is an unconstitutional condition
of employment." J.A. 40.
KIRBY v. CITY OF ELIZABETH CITY 5
After hearing Kirby’s grievance of his demotion, the City’s Person-
nel Appeals Committee ("PAC") concluded that Kirby had indeed
violated department policy, but it recommended that Kirby’s sanction
be reduced. Specifically, the PAC recommended that Kirby retain his
rank of Sergeant for a one-year probationary term and that his hourly
salary be set at $15.90 per hour—a rate lower than his pay prior to
the demotion but higher than he had received since. Following his
review of the PAC’s findings and recommendations, the City Man-
ager accepted the finding that Kirby had violated departmental policy
but decided that Kirby would remain at the lower rank of Police Offi-
cer III for a six-month probationary period at the rate of pay that the
PAC recommended.3 Kirby was reinstated to his former Sergeant
position at the expiration of the probationary period. He nevertheless
maintains that Appellees have continued their retaliation against him
by assigning him to perform secretarial duties such as handling tele-
phone inquiries.
Appellees moved for summary judgment, and Kirby filed a cross-
motion for partial summary judgment. The district court granted
Appellees’ motion and denied Kirby’s. Regarding Kirby’s freedom of
expression claim, the court ruled that testimony in a public hearing is
not constitutionally protected unless the testimony relates to a matter
of public concern. The court ruled that the speech at issue here was
not protected because it concerned only one particular employee in a
matter that was not of general concern to the public. The court ruled
that Kirby’s claims alleging violation of his freedom to associate and
asserting the imposition of unconstitutional conditions on his public
employment also failed because the claims alleged retaliation for mat-
ters not of public concern. The district court also rejected Kirby’s
Fourteenth Amendment liberty claim on the ground that it was simply
a rewording of his freedom of expression claim and that any residual
liberty protection given to free speech under the Fourteenth Amend-
ment could not exceed the protection that the First Amendment
affords.
The district court divided Kirby’s equal protection claims into two
categories—those claims alleging that he was treated differently in
3
The City Manager also determined that the $15.90 pay rate would be
retroactive to the date of Kirby’s demotion.
6 KIRBY v. CITY OF ELIZABETH CITY
retaliation for his testimony and his claim that there was no rational
basis for the treatment he received. The court disposed of the first
group on the basis that generic free-speech retaliation does not consti-
tute an equal protection violation. And, the rational basis claim was
disposed of on the ground that Kirby failed to forecast evidence
negating the existence of any facts from which a conceivable rational
basis justifying the treatment he received could be derived.
Finally, the district court ruled that Kirby’s petition claim failed
because his grievance and lawsuit did not involve matters of public
concern and thus were not constitutionally protected.
II.
Kirby first contends that the district court erred in granting sum-
mary judgment on his freedom of expression claim. Specifically, he
maintains that his testimony was on a matter of public concern
because (1) it was given in a public hearing, and (2) it concerned mat-
ters of the type that would interest the general public. We conclude
that the district court properly granted summary judgment against
Kirby on this claim.
It is well settled that citizens do not relinquish all of their First
Amendment rights by virtue of accepting public employment. See
United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 465
(1995); Connick v. Myers, 461 U.S. 138, 142 (1983); Pickering v. Bd.
of Educ., 391 U.S. 563, 568 (1968). Nevertheless, the government, as
an employer, clearly possesses greater authority to restrict the speech
of its employees than it has as sovereign to restrict the speech of the
citizenry. See Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000)
(en banc). A determination of whether a restriction imposed on a pub-
lic employee’s speech violates the First Amendment requires "‘a bal-
ance between the interests of the [employee], as a citizen, in
commenting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the public ser-
vices it performs through its employees.’" Connick, 461 U.S. at 142
(alteration in original) (quoting Pickering, 391 U.S. at 568). This bal-
ancing begins with an inquiry into whether the speech at issue was
that of a private citizen speaking on a matter of public concern. See
Mansoor v. Trank, 319 F.3d 133, 137 (4th Cir. 2003). If so, the court
KIRBY v. CITY OF ELIZABETH CITY 7
must next consider whether the employee’s interest in his First
Amendment expression outweighs the employer’s interest in what it
has determined to be the appropriate operation of the workplace. See
Urofsky, 216 F.3d at 406.
To determine whether speech involves a matter of public concern,
we examine the content, form, and context of the speech at issue in
light of the entire record. See Connick, 461 U.S. at 147-48. Speech
involves a matter of public concern when it involves an issue of
social, political, or other interest to a community. See id. at 146. The
public-concern inquiry centers on whether "the public or the commu-
nity is likely to be truly concerned with or interested in the particular
expression." Arvinger v. Mayor of Baltimore, 862 F.2d 75, 79 (4th
Cir. 1988) (internal quotation marks omitted). Whether speech
addresses a matter of public concern is a question of law for the court,
and thus we review the matter de novo. See Urofsky, 216 F.3d at 406.
We now turn to Kirby’s arguments. Kirby’s first contention—that
the fact that his testimony was given in a public hearing makes it a
matter of public concern—is at odds with our opinion in Arvinger.
There we determined that a police officer did not address a matter of
public concern when he stated during a coworker’s employment hear-
ing that he did not know whether marijuana found in his van belonged
to the coworker. See Arvinger, 862 F.2d at 78-79. In so doing, we
held that it was "irrelevant for first amendment purposes that the
statement was made in the course of an official hearing" because the
statement was made not to further any public debate, but only to fur-
ther the interests of the two officers involved. Id. at 79.
Kirby argues that Arvinger is distinguishable from the present case
because in Arvinger the testimony was not truthful. However, nothing
in our decision indicates that the outcome depended on the alleged
falsity of the testimony. Kirby also argues that even if his position is
at odds with Arvinger, that decision is not controlling because it con-
flicts with Judge Ervin’s separate opinion in Whalen v. Roanoke
County Bd. of Supervisors, 769 F.2d 221 (4th Cir. 1985), which this
court subsequently adopted, see Whalen v. Roanoke County Bd. of
Supervisors, 797 F.2d 170 (4th Cir. 1986) (en banc) (per curiam). In
fact, Arvinger and the en banc Whalen decision are completely con-
sistent because nothing in Judge Ervin’s opinion states that testimony
8 KIRBY v. CITY OF ELIZABETH CITY
in a public hearing necessarily relates to a matter of public concern.
In Whalen, the panel concluded that the plaintiff’s testimony at a pub-
lic hearing concerned a matter of public interest, see Whalen, 769
F.2d at 225, and Judge Ervin accepted this conclusion in his dissent,
see id. at 226 (Ervin, J., concurring in part & dissenting in part). How-
ever, nothing in Judge Ervin’s opinion or the panel majority opinion
indicates that the existence of the hearing, rather than the subject mat-
ter of the statement, was what made the statement there a matter of
public concern.
Kirby’s second contention—that his speech involved a matter of
public concern because it was on a topic of interest to the public—
fails as well. Kirby’s speech concerned the narrow question of
whether Officer Henning negligently failed to monitor the transmis-
sion fluid in Car 127, thereby damaging the vehicle. Kirby did testify
that a faulty transmission in Car 127 had once prevented an officer
from responding to a call and that Car 127 had experienced other
mechanical problems, but the relative unreliability of a single police
vehicle simply is not of sufficient significance to attract the public’s
interest. Cf. Arvinger, 862 F.2d at 78-79 (holding that police officer
did not address a matter of public concern when he stated that he did
not know whether marijuana found in his van belonged to a
coworker). And Kirby clearly was not interested in furthering any
public debate about the reliability of Car 127. We therefore agree with
the district court that Kirby’s statements did not address a matter of
public concern.4
4
Because Kirby’s speech was not constitutionally protected, Kirby’s
claim that the treatment he received amounted to an implicit restriction
on his speech—and thus an unconstitutional condition on his public
employment—fails as well. The same is true for his freedom of associa-
tion claim, see Edwards v. City of Goldsboro, 178 F.3d 231, 249 (4th
Cir. 1999) (noting the correlative nature of freedom of association in
relation to other First Amendment freedoms, including freedom of
speech, and recognizing the relatedness of the limitations on both rights
in a public employment context), and his Fourteenth Amendment liberty
claim, see Kelley v. Johnson, 425 U.S. 238, 245 (1976) (holding that any
residual Fourteenth Amendment liberty interest a person has in his
speech is necessarily narrower than his First Amendment interest in that
same speech).
KIRBY v. CITY OF ELIZABETH CITY 9
III.
Kirby next argues that the district court erred in granting summary
judgment against him on his equal protection claims. We disagree.
The Fourteenth Amendment’s Equal Protection Clause provides
that "[n]o State shall . . . deny to any person within its jurisdiction the
equal protection of the laws." U.S. Const. amend. XIV, § 1. The
claims based on the allegation that Kirby was treated differently in
retaliation for his speech are, at their core, free-speech retaliation
claims that do "not implicate the Equal Protection Clause." Edwards,
178 F.3d at 250 (internal quotation marks omitted).
As for the claims based not on Appellees’ actual motivation for
their alleged disparate treatment of Kirby, but rather on the allegation
that there was no rational basis for any difference in treatment, they
fail as well. To establish such a claim, it is not sufficient for a plaintiff
simply to show that the defendants’ actual motive for their disparate
treatment was irrational; rather he must negate "any reasonably con-
ceivable state of facts that could provide a rational basis for the classi-
fication." Bd. of Trustees v. Garrett, 531 U.S. 356, 367 (2001)
(internal quotation marks omitted); cf. Village of Willowbrook v.
Olech, 528 U.S. 562, 565 (2000) (per curiam) (noting that claim of
no rational basis is distinct from claim based on defendant’s subjec-
tive motivation). Kirby does not challenge the determination of the
district court that he cannot meet that standard. Instead, he argues that
the "no conceivable rational basis" standard does not apply and that
it is Appellees’ actual motivation—retaliation for Kirby’s testimony
—that matters. But we have already explained that Kirby’s equal pro-
tection claims fail to the extent that they are based on the allegation
that he was retaliated against because of his testimony.5
5
Kirby also contends that the district court erred in restricting discov-
ery on the question of whether he actually was retaliated against. We
conclude that the discovery restrictions were well within the discretion
of the district court. See Am. Chiropractic Ass’n v. Trigon Healthcare,
Inc., 367 F.3d 212, 235-36 (4th Cir. 2004) (stating standard of review).
10 KIRBY v. CITY OF ELIZABETH CITY
IV.
Kirby finally maintains that the district court erred in granting sum-
mary judgment against him on his freedom to petition claim, which
is based on his allegation that his demotion constituted retaliation for
his formal challenges to the reprimand. Kirby contends that the dis-
trict court erred in ruling that a public employee’s petition must
address a matter of public concern in order to be constitutionally pro-
tected. He alternatively maintains that his petitions did involve a mat-
ter of public concern. We reject the first argument but agree with the
second.
A.
The First Amendment protects the right "to petition the Govern-
ment for a redress of grievances." U.S. Const. amend. I. The Supreme
Court has recognized that this right "is cut from the same cloth as the
other guarantees of that Amendment, and is an assurance of a particu-
lar freedom of expression." McDonald v. Smith, 472 U.S. 479, 482
(1985). In rejecting the assertion that the Petition Clause provides
absolute immunity for allegedly libelous statements included in letters
to the President, the Court stated:
The Petition Clause . . . was inspired by the same ideals of
liberty and democracy that gave us the freedoms to speak,
publish, and assemble. These First Amendment rights are
inseparable, and there is no sound basis for granting greater
constitutional protection to statements made in a petition . . .
than other First Amendment expressions.
Id. at 485 (citations omitted). We confirmed this principle in Thorne
v. Bailey, 846 F.2d 241 (4th Cir. 1988), recognizing that the Petition
Clause does not "enjoy[ ] a preferred place among First Amendment
freedoms." Thorne, 846 F.2d at 244 (internal quotation marks omit-
ted).
It would violate the principles articulated in McDonald and Thorne
to extend constitutional protection of public employees’ petitions for
redress beyond the protections afforded to public employee speech. In
KIRBY v. CITY OF ELIZABETH CITY 11
fact, it would allow the anomalous result that a private employment
dispute could "be constitutionalized merely by filing a legal action."
Altman v. Hurst, 734 F.2d 1240, 1244 n.10 (7th Cir. 1984) (per
curiam). We therefore join the majority of circuits to have addressed
the question in holding that a public employee’s petition, like his
speech, is constitutionally protected only when it addresses a matter
of public concern. See Jones v. Union County, 296 F.3d 417, 426 (6th
Cir. 2002); Martin v. City of Del City, 179 F.3d 882, 887-89 (10th
Cir. 1999); Grigley v. City of Atlanta, 136 F.3d 752, 755-56 (11th Cir.
1998); Rendish v. City of Tacoma, 123 F.3d 1216, 1220-23 (9th Cir.
1997); White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059
(2d Cir. 1993); Hoffman v. Mayor of Liberty, 905 F.2d 229, 233 (8th
Cir. 1990); Belk v. Town of Minocqua, 858 F.2d 1258, 1261-62 (7th
Cir. 1988); Day v. S. Park Indep. Sch. Dist., 768 F.2d 696, 701-03
(5th Cir. 1985). But see San Filippo v. Bongiovanni, 30 F.3d 424,
439-43 (3d Cir. 1994) (holding that a "non-sham" grievance or law-
suit by a public employee that constitutes a "petition" is constitution-
ally protected even if it does not raise a matter of public concern).
B.
In light of our holding, we turn to the question of whether Kirby’s
petitions—his grievance and his original complaint alleging that he
was orally reprimanded because of his truthful testimony—involved
a matter of public concern. We note initially that this case presents the
uncommon allegation of second-level retaliation—that is, retaliation
for challenging an earlier alleged retaliatory act. In light of the close
and somewhat confusing relationship between the retaliation claims
of different levels, it is important for us to begin by contrasting our
analysis of this second-level retaliation claim based on the demotion
—the petition claim—with our analysis of Kirby’s first-level retalia-
tion claims based on the reprimand. Because Kirby’s first-level retali-
ation claims allege that he was reprimanded because of his testimony,
the threshold question in analyzing the viability of those claims is
whether Kirby’s testimony involved a matter of public concern, which
we hold it did not for the reasons already explained. Kirby’s petition
claim, however, alleges that he was demoted for filing a grievance
and a lawsuit. Thus, the threshold question with regard to that claim
12 KIRBY v. CITY OF ELIZABETH CITY
is whether the grievance and the lawsuit addressed a matter of public
concern.6
This distinction is critical because while Kirby’s testimony con-
cerned only whether his fellow officer properly maintained his vehi-
cle, his grievance and lawsuit concerned a subject of much greater
interest to the public, namely whether the police chief and his lieuten-
ant retaliated against Kirby for providing truthful testimony. Our
research has not uncovered any case considering whether a petition
alleging first-level retaliation amounts to constitutionally protected
expression—and thus whether a claim for second-level retaliation is
viable—when the speech that precipitated the first-level retaliation
did not itself involve a matter of public concern. However, in this
instance at least, we conclude that Kirby has cleared the threshold
hurdle of demonstrating that his petitions alleging first-level retalia-
tion involved a matter of public concern.
The critical factor supporting our conclusion is not that Kirby was
allegedly unjustly reprimanded, but rather, that the reprimand could
have a chilling effect on him and other officers. Retaliation by the
police chief and his lieutenant against an officer based on the officer’s
allegedly truthful testimony in an official hearing most certainly could
be expected to discourage officers in future inquiries from providing
information that they suspect will displease the police chief. See J.A.
281 (affidavit of former City police chief explaining that
"[r]eprimands of employees as a result of truthful testimony at griev-
ance hearings will likely adversely affect the testimony of employees
in . . . other hearings because the possibility of discipline will consti-
tute a form of implied pressure upon employees"); id. at 274 (affidavit
of City police officer stating that the "adverse action against . . . Kirby
resonated throughout the police department with an extreme deterrent
and damaging effect"). Considering that "uninhibited testimony is
vital to the success of [the] truth-seeking function," Catletti v. Rampe,
334 F.3d 225, 230 (2d Cir. 2003), there is a strong public interest in
ensuring that that process is not compromised. Cf. Green v. Philadel-
phia Hous. Auth., 105 F.3d 882, 887 (3d Cir. 1997) ("The utility of
uninhibited testimony and the integrity of the judicial process would
6
Although we ordinarily consider context and form as well as content,
the context and form of the petitions add little to our analysis here.
KIRBY v. CITY OF ELIZABETH CITY 13
be damaged if we were to permit unchecked retaliation for appearance
and truthful testimony at such proceedings."). This is particularly true
in the law enforcement arena. See Brawner v. City of Richardson, 855
F.2d 187, 191-92 (5th Cir. 1988) ("The disclosure of misbehavior by
public officials is a matter of public interest and therefore deserves
constitutional protection, especially when it concerns the operation of
a police department." (footnote omitted)).
It could be argued that because Kirby’s testimony did not involve
a matter of public concern, his allegation of retaliation based on that
testimony is not sufficiently significant to involve a matter of public
concern. Although we recognize that this issue is a close one, we con-
clude that the allegedly unwarranted reprimand could have a signifi-
cant chilling effect on testimony relating to matters of public as well
as private concern. One who believes that the police chief and his
lieutenant are willing to punish adverse testimony and lie about the
reason for it7 is likely also to suspect that those officials would engage
in retaliation even when such retaliation might be unconstitutional.
For these reasons, we conclude that Kirby’s allegation in his griev-
ance and first complaint that he was reprimanded based on his testi-
mony at a disciplinary hearing implicates a matter of public concern
even though the testimony itself related to a private matter.8
7
We emphasize that these are the allegations in Kirby’s petitions,
which we accept only for purposes of summary judgment.
8
Although Appellees contend that a simple "oral reprimand" would not
be sufficient to chill future speech, the record indicates that the so-called
"oral" reprimand was in fact reduced to writing. J.A. 44. And, in any
event, it is well established that even minor retaliation can have a chilling
effect on future expression. See Rutan v. Republican Party, 497 U.S. 62,
76 n.8 (1990) ("[T]he First Amendment . . . protects state employees . . .
from even an act of retaliation as trivial as failing to hold a birthday party
for a public employee when intended to punish her for exercising her free
speech rights." (alteration & internal quotation marks omitted)); Smith v.
Fruin, 28 F.3d 646, 649 n.3 (7th Cir. 1994) (explaining that "minor
forms of retaliation . . . may have just as much of a chilling effect on
speech as more drastic measures").
We also note that Appellees do not maintain that retaliating against
Kirby for filing his petitions advanced its interest in what it has deter-
mined to be the appropriate operation of the workplace. See Urofsky, 216
F.3d at 406.
14 KIRBY v. CITY OF ELIZABETH CITY
C.
Although we hold that Kirby’s petitions implicated a matter of pub-
lic concern, we affirm the judgment in favor of Appellees on other
grounds.
First, Chief Hampton and Lieutenant Koch are entitled to qualified
immunity. Government officials performing discretionary functions
are entitled to qualified immunity from liability for civil damages to
the extent that "their conduct does not violate clearly established stat-
utory or constitutional rights of which a reasonable person would
have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Here,
the petition rights that Kirby alleges that Chief Hampton and Lieuten-
ant Koch violated were anything but clear. As is apparent from our
analysis of the petition claim, the legal viability of the claim presents
a close and novel issue, and even assuming that Kirby’s allegations
are true, Hampton and Koch cannot be held liable for what would
amount to "bad guesses in [a] gray area[ ]." Maciariello v. Sumner,
973 F.2d 295, 298 (4th Cir. 1992).
While the City is not entitled to assert a qualified immunity
defense, it is also not liable under respondeat superior principles sim-
ply by virtue of its employment of Hampton and Koch. Rather, to
establish liability on behalf of a municipality, a plaintiff must show
that the officers acted pursuant to an official policy or custom of the
municipality. See Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th
Cir. 1994). Such a policy or custom need not derive from municipal
ordinances; "it may also be found in formal or informal ad hoc ‘pol-
icy’ choices or decisions of municipal officials authorized to make
and implement municipal policy." Spell v. McDaniel, 824 F.2d 1380,
1385 (4th Cir. 1987).
Kirby asserts several different theories under which he contends
the City could be liable for retaliating against him, none of which
withstands scrutiny. First, Kirby contends that Chief Hampton’s deci-
sion to demote him was itself a policy decision for which the City
could be liable. However, Chief Hampton lacked final authority with
regard to that decision because the demotion was subject to further
review by the City’s Personnel Appeals Committee and City Man-
ager. See Riddick v. Sch. Bd., 238 F.3d 518, 523 (4th Cir. 2000)
KIRBY v. CITY OF ELIZABETH CITY 15
("When a municipal official’s discretionary action is subject to review
by the municipality’s authorized policymakers, they have retained the
authority to measure the official’s conduct for conformance with their
policies." (internal quotation marks omitted)). Kirby also maintains
that the City ratified and acquiesced in Chief Hampton’s unconstitu-
tional retaliation against Kirby to the extent that the demotion was
affirmed during the grievance process. See City of St. Louis v. Pra-
protnik, 485 U.S. 112, 127 (1988) (plurality opinion) ("If the autho-
rized policymakers approve a subordinate’s decision and the basis for
it, their ratification would be chargeable to the municipality because
their decision is final."). That theory fails as well though because
Kirby has not forecasted evidence that the City Manager approved of
retaliation against Kirby as a basis for the demotion. Cf. Hall v. Mar-
ion Sch. Dist. No. 2, 31 F.3d 183, 196 (4th Cir. 1994) (affirming
determination by the district court that school board ratified unconsti-
tutional termination of teacher when board was aware of the retalia-
tory reasons for her firing). Kirby finally argues that even if the
demotion itself did not constitute a policy decision for which the City
could be held liable, the demotion was proximately caused by policies
contained in the City Police Department’s "Policy and Procedures
Manual" that restricted certain types of speech.9 J.A. 206. However,
even if the City could otherwise be held liable under this theory,
Kirby has not forecasted evidence that the existence of these policies
played any causal role regarding his demotion, which Appellees have
consistently defended solely on the basis that it was an appropriate
response to Kirby’s failure to satisfactorily complete his duties. See
Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (stating that
plaintiff is required to show "a close fit between the unconstitutional
policy and the constitutional violation").10
9
Under those policies, officers may not discuss "Department problems
. . . outside of [the] Department" or make "[d]erogatory remarks about
. . . the Chief." J.A. 210.
10
Kirby maintains that the officers’ qualified immunity and the lack of
municipal liability would not preclude an award of equitable relief—such
as back pay, front pay, an injunction against his performing secretarial
duties, or expungement of his employment records—or of declaratory
relief. He is incorrect. Qualified immunity prevents an award of back or
front pay against the officers in their individual capacities. See Paxman
v. Campbell, 612 F.2d 848, 855-56 (4th Cir. 1980) (en banc); Los Ange-
16 KIRBY v. CITY OF ELIZABETH CITY
V.
In sum, we affirm the district court order granting summary judg-
ment to Appellees.
AFFIRMED
les Police Protective League v. Gates, 995 F.2d 1469, 1472 n.1 (9th Cir.
1993). The other injunctive relief Kirby seeks could only be awarded
against the officers in their official capacities, see Frank v. Relin, 1 F.3d
1317, 1327 (2d Cir. 1993); Scott v. Flowers, 910 F.2d 201, 213 & n.25
(5th Cir. 1990), but we have held that the City is not liable, see Hensley
v. Horne, 297 F.3d 344, 347 n.1 (4th Cir. 2002); see also Hughes v.
Blankenship, 672 F.2d 403, 406 (4th Cir. 1982) ("Official capacity suits
generally represent but another way of pleading an action against the
entity of which the officer is an agent . . . ."). All that remains then is
Kirby’s request for a declaration that his rights have been violated. How-
ever, absent any expected practical effect of requested declaratory relief
—and none is apparent here—a claim for such relief is not sufficient to
create a case or controversy for Article III purposes. See S. Jackson &
Son, Inc. v. Coffee, Sugar & Cocoa Exch. Inc., 24 F.3d 427, 431 (2d Cir.
1994).