Thomasson v. Modlinski ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
L. A. (JACK) THOMASSON,
Plaintiff-Appellant,
v.
JULES J. MODLINSKI, Individually and
in His Official Capacity as
Executive Director of Southside
Community Services Board;
EDWARD OWENS, Individually and in
His Official Capacity as Chairman
of the Board of Southside
Community Services Board;
SOUTHSIDE COMMUNITY SERVICES
BOARD; MECKLENBURG COUNTY,
VIRGINIA; BRUNSWICK COUNTY, No. 95-1663
VIRGINIA; HALIFAX COUNTY,
VIRGINIA; CITY OF SOUTH BOSTON,
VIRGINIA,
Defendants-Appellees,
and
BENNETT NELSON, Individually and
in His Official Capacity as Human
Resource Manager to Community
Service Boards with the Virginia
Department of Mental Health,
Mental Retardation and Substance
Abuse,
Defendant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-94-256-R)
Argued: October 30, 1995
Decided: January 30, 1996
Before ERVIN, Chief Judge, and WIDENER and LUTTIG,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Harris Dewey Butler, III, BUTLER, MACON, WIL-
LIAMS, PANTELE & LOWNDES, Richmond, Virginia, for Appel-
lant. Lynne Jones Blain, MORRIS & MORRIS, Richmond, Virginia,
for Appellees. ON BRIEF: William James Pantele, BUTLER,
MACON, WILLIAMS, PANTELE & LOWNDES, Richmond, Vir-
ginia, for Appellant. Michelle P. Wiltshire, MORRIS & MORRIS,
Richmond, Virginia, for Appellees Modlinski, Owens, and Board;
Yvonne S. Wellford, MALONEY, YEATTS & BARR, Richmond,
Virginia, for Appellees Halifax, Brunswick, and Mecklenburg;
W. Joseph Owen, III, COWAN & OWEN, P.C., Richmond, Virginia,
for Appellee South Boston.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant L. A. ("Jack") Thomasson and two co-workers com-
plained to the executive director of the public agency in which they
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worked about the work habits of another co-worker over whom they
had no supervisory authority. Thomasson alleges that in response to
this speech he was suspended and then terminated. The district court
found that the speech did not address a matter of public concern, and
therefore was not protected by the First Amendment. The district
court also found that the one-and-a-half year time period between
Thomasson's initial suspension and the time at which he was ulti-
mately reinstated and given back pay was not a deprivation of due
process and granted summary judgment on that claim. Finding no
error in the decision below, we affirm.
I.
Thomasson was employed by the Southside Community Services
Board ["SCSB"], which was formed by the City of South Boston and
the Counties of Halifax, Mecklenburg, and Brunswick, all in Virginia.
This agency provides mental health, mental retardation, and substance
abuse services for the localities. Appellee Jules Modlinski was the
agency's executive director. Thomasson served as SCSB's Director
for Fiscal and Administrative Services in 1991.
On December 4, 1991, Thomasson, Director of Mental Retardation
Services Daniel F. McElroy, and Supervisor of Emergency Services
Spencer Ferguson met with Modlinski to discuss their concerns about
the work habits of an SCSB employee, B.C. Hall. The three men
stated that they were there as taxpayers--as Thomasson apparently
often did when he discussed agency business--and wished to report
comments they had heard from members of the community. Modlin-
ski told the men that he would look into the matter. The facts to this
point are undisputed; the parties disagree, however about what else
was said at the meeting. Although Thomasson claims otherwise,
Modlinski testified that he did not recall any of the employees men-
tioning the concerns of community members or offering to provide
names of people with information about Hall's time away from work.
Modlinski met with Hall the next day to discuss the men's allega-
tions, and several days after that met with Hall and the three men.
Modlinski concluded that there was insufficient evidence to support
a finding that Hall's work habits were inappropriate. Moreover, after
Hall told him that their surveillance was creating a difficult work
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atmosphere for her, Modlinski instructed the three men to stop moni-
toring her comings and goings, and directed them all to write letters
of apology to her. Hall later filed an internal complaint against the
three men, as well as an EEOC charge alleging discrimination.
Modlinski investigated the complaints and suspended Thomasson and
McElroy for three days, and Ferguson for five days, 1 for creating an
offensive work environment for Hall.
Following the three-day suspension, Modlinski placed Thomasson
on a two-to-ten day suspension with pay so that he could investigate
Thomasson's department. Several months later, Modlinski terminated
Thomasson, citing insubordination and mismanagement.
Thomasson contested his suspension and termination according to
Virginia's state grievance procedures. There was dispute as to
whether his grievances should proceed collectively with those of
McElroy and Ferguson, which caused some delay in the process.
Later, questions were raised about panel members; resolving these
questions occasioned further delay. After Thomasson's termination
panel ordered him reinstated with back pay, the SCSB pursued sev-
eral available avenues of appeal. Thomasson was reinstated at his for-
mer salary approximately one and a half years after the initial meeting
with Modlinski.
Thomasson filed suit on April 15, 1994 under 42 U.S.C. § 1983.
He named as defendants the SCSB, Edward Owens (president of the
Board of the SCSB), Modlinski, the Counties of Mecklenburg, Hali-
fax, and Brunswick, and the City of South Boston. He claimed that
his suspension and termination were in retaliation for his exercise of
First Amendment rights, and that the defendants violated his substan-
tive and procedural due process rights by unjustifiably delaying the
post-termination proceedings. The district court granted summary
judgment for the defendants on February 8, 1995, on the grounds that
Thomasson's speech was not a matter of public concern, and that the
delays in his hearings did not amount to a denial of due process.
Thomasson v. Modlinski, 876 F. Supp. 818, 822, 824 (E.D. Va. 1995).
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1 Ferguson's longer suspension was apparently due to his institution of
the "B.C. Patrol," which he jokingly used to refer to his efforts to locate
Hall.
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II.
Summary judgments are appropriate in those cases in which there
are no genuine issues of material fact. Fed. R. Civ. Pro. 56(c); Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). A moving party is
entitled to summary judgment if the non-moving party fails to make
a sufficient showing on any essential element of the case for which
the non-moving party has the burden of proof. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
Grants of summary judgment are reviewed de novo on appeal.
Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th
Cir. 1988); Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1127-28
(4th Cir. 1987). Whether speech relates to a matter of public concern
is a question of law and is reviewed de novo on appeal. Hall v. Mar-
ion Sch. Dist. No. 2, 31 F.3d 183, 192 (4th Cir. 1994).
A.
To establish a claim for retaliatory discharge based on the exercise
of First Amendment free speech rights, an employee must demon-
strate that the speech was protected by the First Amendment and was
the "but for" cause of the discharge. Jurgensen v. Fairfax County, Va.,
745 F.2d 868, 877-78 (4th Cir. 1984) (citing Mt. Healthy City Sch.
Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). The first of these
two factors is a question of law, not of fact.2 Jurgensen, 745 F.2d at878 (citing Connick v. Myers, 461 U.S. 138, 148 n.7 (1983); Jones v.
Dodson, 727 F.2d 1329, 1334 (4th Cir. 1984)).
Not all speech by government employees is constitutionally pro-
tected, because the government has some rights in its capacity as an
employer that it does not have in other contexts. See Pickering v.
Board of Educ., 391 U.S. 563, 574 (1968). In Connick v. Myers, 461
U.S. 138 (1983), the Supreme Court emphasized that the First
Amendment rights of government employees are implicated when
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2 Although Jurgensen says that the second factor is also a question of
law, 745 F.2d at 878, subsequent cases explain that this is a factual deter-
mination, reversible only when there was clear error. Hall v. Marion Sch.
Dist. No. 2, 31 F.3d 183, 193 (4th Cir. 1994).
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they have spoken about matters of public concern . Id. at 146 ("When
employee expression cannot be fairly considered as relating to any
matter of political, social, or other concern to the community, govern-
ment officials should enjoy wide latitude in managing their offices
. . . ."). The government as employer enjoys considerable discretion
in personnel decisions, provided that those decisions do not infringe
on constitutional rights. Id. at 146. To determine whether the speech
in question is a matter of public concern, courts are to look to the con-
tent, form, and context of the speech. Id. at 147-48.
The Fourth Circuit has interpreted the line of Supreme Court cases
which includes Pickering and Connick to mean that
all public employee speech that by content is within the gen-
eral protection of the first amendment is entitled to at least
qualified protection against public employer chilling action
except that which, realistically viewed, is of purely "per-
sonal concern" to the employee--most typically, a private
personnel grievance.
Berger v. Battaglia, 779 F.2d 992, 998 (4th Cir. 1985), cert. denied,
476 U.S. 1159 (1986). The test boils down to "whether the `public'
or the `community' is likely to be truly concerned with or interested
in the particular expression, or whether it is more properly viewed as
essentially a `private' matter between employer and employee." Id. at
999; see also Barnes v. Small, 840 F.2d 972, 982-83 (D.C. Cir. 1988)
(letters addressing misbehavior of other employees in plaintiff's
office held not to touch on matters of public concern; not enough that
"statements reported perceived misconduct by government officials
charged with carrying out congressionally mandated programs");
Ferrara v. Mills, 781 F.2d 1508, 1516 (11th Cir. 1986) ("[A] public
employee may not transform a personal grievance into a matter of
public concern by invoking a supposed popular interest in the way
public institutions are run."). Speech made privately to the employer
may nonetheless be of public concern. Berger, 779 F.2d at 999 (citing
Givhan v. Western Line Consol. Sch. Dist, 439 U.S. 410 (1979)).
In this case, the district court addressed the content, form, and con-
text of Thomasson's speech as directed by Connick. The court found
that the content was "an argument among employees about Hall's
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work hours, not a dispute about how the agency should be spending
its money." 876 F. Supp. 818, 823 (E.D. Va. 1995). As to the form
of the comments, Thomasson's use of the label taxpayer did not
change the nature of the speech--"an internal dispute between
employees does not become a matter of public concern simply
because one of the staffers strikes the pose of a concerned taxpayer
. . . ." Id. (citing Ferrara v. Mills , 781 F.2d 1508, 1516 (11th Cir.
1986)). Finally, the court found that the context of the remarks clearly
showed that they were not of public concern. It noted that
Hall's work habits were the subject of gossip and dis-
gruntlement among Thomasson, McElroy and Ferguson.
. . . Thomasson may well have had good reason to be upset
about Hall's work habits, but voicing these concerns did not
constitute speech about a matter of public concern.
Id. In response to Thomasson's argument that public concern was evi-
dent in the public discussion of Hall, the district court noted that the
record lacked competent evidence that members of the community
were in fact talking about Hall's work habits. Id. at 823-24. More-
over, the judge wrote that Thomasson's complaints about affairs in
his office do not "become cloaked with the protection of the First
Amendment simply because Ms. Hall is the object of gossip outside
the office." Id. at 824.
We agree with the district court that Thomasson's speech was not
on a matter of public concern. Therefore, his claim that he was fired
for exercising his First Amendment rights must fail.
B.
Thomasson claims that his due process rights have been denied by
appellees' pattern of delay. This claim grows out of the Supreme
Court's proclamation in Cleveland Board of Education v. Loudermill:
"At some point, a delay in the post-termination hearing would become
a constitutional violation." 470 U.S. 532, 547 (1985). In the
Loudermill case, the Court found that a nine-month delay in post-
termination proceedings was not unconstitutionally long, at least in
part because the plaintiff did not explain the reasons for the delay. Id.7
Thomasson claims "deliberate machination of the process meant to
induce delay or harm." The district court found, and we agree, that
"Thomasson is fighting an uphill battle on these allegations since he
was reinstated by a state grievance panel and provided with back
pay." 876 F. Supp. at 822. Moreover,
some of the delays were requested by Thomasson and others
resulted from the replacement of a hearing officer due to a
perceived conflict of interest. . . [and] the appeals pursued
by the SCSB were provided for by the grievance procedure.
Id. Many of the delays stemmed from scheduling conflicts or the nor-
mal processing periods of public agencies and courts.
These kinds of non-egregious delays simply do not amount to a
constitutional case. The Supreme Court, for good reason, has not
specified a constitutionally required time period within which all
post-termination procedures must be complete. We hold that in this
case the eighteen-month time period did not amount to a deprivation
of due process, especially since the process has provided substantial
relief to the plaintiff.
III.
Because the district court properly held that Thomasson's speech
was not a matter of public concern, we affirm the grant of summary
judgment on Thomasson's First Amendment claim. We also affirm
the grant of summary judgment on his due process claim.
AFFIRMED
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