UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DIXIE L. MCVEY,
Plaintiff-Appellant,
v.
VIRGINIA HIGHLANDS AIRPORT
COMMISSION; KENNETH L. STACY,
Chairman of the Virginia Highlands
Airport Commission, individually
and in his official capacity of
Chairman; RICHARD H. KISER,
Member of Virginia Highlands
Airport Commission, individually
and in his official capacity as
member; JAMES D. VICARS, Member
of Virginia Highlands Airport
Commission, individually and in his No. 01-2466
official capacity as member;
THOMAS PHILLIPS, Member of
Virginia Highlands Airport
Commission, individually and in his
official capacity as member; DAVID
C. JOHNSON, Member of Virginia
Highlands Airport Commission,
individually and in his official
capacity as member; DAVID
HAVILAND, Member of Virginia
Highlands Airport Commission,
individually and in his official
capacity as member; F. ELLISON
CONRAD, Member of Virginia
Highlands Airport Commission,
2 MCVEY v. VIRGINIA HIGHLANDS AIRPORT COMM’N
individually and in his official
capacity as member; BEATRICE
HUTZLER, Member of Virginia
Highlands Airport Commission,
individually and in her official
capacity as member,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CA-96-143-1)
Argued: June 4, 2002
Decided: August 15, 2002
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge Michael wrote an
opinion concurring in the judgment.
COUNSEL
ARGUED: Thomas Dene, DENE & DENE, P.C., Abingdon, Vir-
ginia, for Appellant. Steven Ray Minor, ELLIOTT, LAWSON &
POMRENKE, Bristol, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
MCVEY v. VIRGINIA HIGHLANDS AIRPORT COMM’N 3
OPINION
PER CURIAM:
In a dispute between the Virginia Highlands Airport Commission
and its airport manager, Dixie McVey, over how to respond to a free-
dom of information request submitted by a local newspaper, the Com-
mission terminated McVey’s employment. On her claim that the
Commission violated her First Amendment rights, the district court
entered summary judgment against her, concluding that she did not
have a viable First Amendment claim and that the Commission mem-
bers were protected by qualified immunity. We affirm.
I
Virginia Highlands Airport ("Airport"), a small regional airport
located in Washington County, Virginia, is governed by the Virginia
Highlands Airport Commission ("Commission"). The Commission is
composed of seven appointed members and, at the times relevant to
this action, was chaired by Kenneth Stacy. The Commission meets
monthly to develop policies and regulations and to review operations.
Committees of the Commission also meet from time to time. The
Commission delegates the day-to-day operations of the Airport to an
airport manager, who, for the period from 1989 until July 1996, was
the plaintiff, Dixie McVey.
At its monthly meeting on March 11, 1996, the Commission dis-
cussed a handwritten list presented to it of the hangar tenants who
were at the time delinquent in their rental payments to the Airport.
The parties agree that this list included the name of one of the Airport
commissioners. They also agree that the list contained at least one
error.
Two days after the meeting, on March 13, 1996, the Abingdon Vir-
ginian, a local newspaper, submitted a request to the Commission
under the Virginia Freedom of Information Act ("FOIA"), requesting
the names and addresses of delinquent hangar tenants who were dis-
cussed at the March 11 meeting. The newspaper also requested copies
of the notice and minutes of all meetings, going back several months.
4 MCVEY v. VIRGINIA HIGHLANDS AIRPORT COMM’N
Finally, it requested documents relating to complaints made to the
Commission about the behavior of Richard Kiser, one of the commis-
sioners, and Robert Owen, an Airport employee.
Because the Virginia FOIA law required a response within five
days, Chairman Stacy met with McVey shortly after receiving the
request for approximately three hours to address the response that
should be made. Stacy testified later in his deposition that during that
meeting, he instructed McVey to produce as part of the Commission’s
response the handwritten list of delinquent tenants that had been dis-
cussed at the March 11 meeting. He also testified that he instructed
McVey not to create documents in order to respond to the request, an
instruction that McVey denies having received.
A day after Stacy and McVey met, McVey sent the Commission
a long letter, dated March 19, 1996, in which she described the docu-
ments that she did and did not have in response to the FOIA request.
She included 22 pages of incident reports relating to Kiser and Owen.
She also created and included a new list of delinquent tenants’ names.
And finally she indicated that "[t]he Commission members did not
make a public record of [some] meetings" and also that "[t]here were
no public notices given by the Commission of [some] Meetings."
Upon receiving McVey’s March 19 letter, Stacy became unhappy
with her proposed approach and her failure to follow Stacy’s instruc-
tions, and this unhappiness only aggravated a preexisting concern that
Stacy had had about McVey’s use of the Airport’s fax machine for
personal business.
A few days later, on April 5, 1996, McVey wrote Stacy another let-
ter, indicating that she believed that the production of the delinquent
tenant list as discussed at the March 11 meeting would violate FOIA
because it contained known errors. She wrote further that "I must in
all candor inform you that I will not intentionally make a false or mis-
leading response."
The differences between the Commission and McVey over the
Commission’s response to the FOIA request came to a head on April
8, 1996, when the Commission sent its FOIA response to the newspa-
per. In its cover letter, the Commission certified the attached packet
MCVEY v. VIRGINIA HIGHLANDS AIRPORT COMM’N 5
as "correct," and all of the commissioners signed the letter, although
some commissioners qualified their certification. The Commission
asked McVey to sign the certification letter, but she refused. Accord-
ingly, at Stacy’s request, she wrote a separate letter, dated April 8,
stating that she would not certify all of the documents, but only those
she had assembled and presented to the Commission. In particular,
she would not certify the accuracy of "documents stamped received
April 4, 1996." Those documents were minutes of three Commission
committee meetings on February 23, March 3, and March 6, 1996,
that had been prepared after the FOIA request was received from the
newspaper. Each set of committee meeting minutes, however, was
signed by at least two commissioners, and the commissioners uni-
formly testified that these minutes were accurate. The only change
made from what actually occurred was to delete from the March 6
development committee meeting the reference to a complaint made
against McVey.
Stacy sent McVey a letter, expressing the Commission’s unhappi-
ness with the response she made to the newspaper, as well as with her
March 19 letter. Stacy charged McVey with violating her fiduciary
duty and wasting public funds in creating documents that Stacy had
specifically instructed McVey not to do. The letter also disputed
McVey’s characterizations of Commission meetings and concluded:
I, as well as other Commission members, view your recent
actions, as pointed out in this letter, as insubordination. This
letter is to be placed in your personnel file and these actions
will be discussed further with the Airport Commission and
at your next annual performance review.
McVey angrily responded to the Commission with a letter dated
April 18, 1996, calling the Commission’s allegations "misleading and
defamatory" and requesting a public apology from the Commission.
McVey pointed out the hypocrisy in censuring her for creating an
internal document while responding to the FOIA request when other
commissioners had created minutes for the February 23 and March 3
committee meetings. McVey concluded her letter as follows:
It is now very clear to me that Mr. Stacy and various mem-
bers of this Commission are attempting to retaliate against
6 MCVEY v. VIRGINIA HIGHLANDS AIRPORT COMM’N
me for my effort to accurately supply the information
requested by the Abingdon Virginian and my refusal to
acquiesce in an attempt to drive-up the expense and level of
difficulty of obtaining information from a FOIA request. I
will not stand for this. Short of a public apology from each
member of the Virginia Highlands Airport Commission who
voted to publish the April 8, 1996 letter and its expunge-
ment from all records, I will seek the full measure of redress
available to me.
Upon receiving this letter, the Commission suspended McVey,
"pending investigation of conduct which may be cause for disciplin-
ary action" and, at its July 15 meeting, voted to give McVey formal
notice that the Commission was considering termination of her
employment. In the Commission’s letter giving McVey notice of its
action, the Commission described in detail the charges against
McVey, including insubordination, the giving of misleading state-
ments to the Commission and the public, the misuse of Commission
property, unsatisfactory performance, conflict of interest, behavior
which disrupted the orderly transaction of Commission meetings, and
incompetence and inefficiency.
After McVey refused to appear for a pre-termination hearing, the
Commission terminated her employment, on July 31, 1996.
McVey commenced this action against the Commission and its
members, alleging, in several counts, a First-Amendment violation,
denial of due process, defamation, and wrongful discharge. She
demanded $750,000 in compensatory damages and $350,000 in puni-
tive damages, as well as expungement of her personnel file and rein-
statement. On the defendants’ motion, the district court dismissed all
claims except McVey’s First Amendment claim, and it refused to rule
on the defendants’ claim of qualified immunity until the record had
been developed further. From this ruling, the defendants filed an
interlocutory appeal. We affirmed the district court and remanded the
case for further proceedings to develop the record on qualified immu-
nity. McVey v. Stacy, 157 F.3d 271 (4th Cir. 1998).
On remand and after discovery, the parties submitted cross-motions
for summary judgment. The district court granted the defendants’
MCVEY v. VIRGINIA HIGHLANDS AIRPORT COMM’N 7
motion on all remaining counts, dismissing the First Amendment
claim with prejudice and the state law claims without prejudice. The
court also concluded that the defendants were entitled to qualified
immunity.
This appeal followed, challenging the district court’s ruling on the
First Amendment claim.
II
In determining whether the defendants were protected from
McVey’s First Amendment claims by qualified immunity, we must
first determine "whether a constitutional right would have been vio-
lated on the facts alleged." Saucier v. Katz, 533 U.S. 194, 200 (2001).
If a violation is established by the existing facts, then we must deter-
mine whether the right was "clearly established." Id. This two-step
approach permits courts to "elaborate the constitutional right with
greater degrees of specificity." Id. at 207.
McVey claims that she was "discharged for refusing to certify the
correctness of documents the [Commission] submitted to a newspaper
in response to a FOIA request and for explaining her reasons for so
refusing in [her April 8] letter to the newspaper," in violation of the
First Amendment. In Pickering v. Board of Education, 391 U.S. 563,
574 (1968), which sets forth the requirements of a First Amendment
claim, the Court held that a government employee’s "exercise of his
right to speak on issues of public importance may not furnish the
basis for his dismissal from public employment." To establish a First
Amendment claim on this basis, a public employee must demonstrate
that "(1) the [employee] speaks as a citizen about matters of public
concern and (2) the [employee’s] interest in exercising free speech is
not outweighed by the countervailing interest of the state in providing
the public service the [employee] was hired to provide," and (3) "pro-
tected speech played a ‘substantial’ role in the termination decision
or was ‘a motivating factor.’" Stroman v. Colleton County Sch. Dist.,
981 F.2d 152, 156 (4th Cir. 1992) (citation omitted).
To satisfy the first prong that her employment was terminated for
speaking as a citizen on a matter of public concern, McVey argues
8 MCVEY v. VIRGINIA HIGHLANDS AIRPORT COMM’N
that her April 8 letter to the newspaper fulfilled that requirement. In
that letter, she stated:
With regard to the package of information submitted to you
in response to the referenced request, please be advised that
I do not "certify" in any way to some documents included
in that package. The documents in the package were com-
piled partially from Airport Commission records and par-
tially from documents submitted to me by Members of the
Airport Commission on April 4, 1996 and stamped received
on that date. I can only verify the documents which were
assembled and presented to the Virginia Highlands Airport
Commission for their review in order to respond to your
request, which documents did not include those documents
stamped received April 4, 1996.
The documents date-stamped April 4 were in fact minutes from the
three recent committee meetings that McVey did not attend and that
were prepared by commissioners after the Commission received the
FOIA request. Because McVey did not see these documents before
April 4, she somehow suspected that something was untoward or
inaccurate about them.
While this innuendo is implied in McVey’s April 8 letter, her
actual statement to the newspaper seeks more to protect herself from
exposure from anything untoward that the Commission may have
done. Regardless of her motive, McVey has not been able to present
any evidence that the minutes were inaccurate or that their creation
was in any way illegal. Indeed, the only evidence presented to the dis-
trict court was by commissioners who testified that the minutes were
accurate. Moreover, while the committee meeting minutes were pre-
pared after the newspaper’s March 13 FOIA request, they docu-
mented very recent committee meetings dated February 23, March 3,
and March 6, occurring within 30 days before the request. McVey
offers no legal authority to support her claim that minutes may not be
prepared within weeks after a meeting is held and that minutes pre-
pared in that time frame would be untimely or illegal.
Accordingly, McVey’s letter of April 8 could not be aimed at
exposing any illegality in the public sector. Rather, it was, at most,
MCVEY v. VIRGINIA HIGHLANDS AIRPORT COMM’N 9
crafted to protect her reputation or lessening her risk as a manager in
the public sector, based on a suspicion of wrongdoing. Thus, by writ-
ing such a letter, McVey is not speaking as a citizen on a matter of
public concern, but as manager on behalf of the Commission, and in
so speaking as a manger she separated herself from the Commission’s
approach without any legal justification for doing so.
Matters of public concern protected by the First Amendment do not
include "[p]ersonal grievances, complaints about conditions of
employment, or expressions about other matters of personal interest."
Stroman, 981 F.2d at 156. In Connick v. Myers, 461 U.S. 138, 146
(1983), the Court looked to whether speech "relat[ed] to any matter
of political, social, or other concern to the community." The Court in
Connick concluded that because the speech did "not seek to bring to
light actual or potential wrongdoing or breach of public trust" in the
office, it was not of public concern. Id. at 148 (emphasis added).
So too in this case, McVey could not and has not attempted to dem-
onstrate that the minutes from the committee meetings in late Febru-
ary and early March 1996 were in any way inaccurate or untoward
and therefore she failed to establish the first prong of her claim that
she was speaking "as a citizen about matters of public concern." Stro-
man, 981 F.2d at 156. On the contrary, she appeared to be speaking
on a matter of personal concern to protect her personal stature.
McVey has failed also to satisfy the second prong of the Stroman
test — whether the employee’s interest in free speech outweighs that
of the government in providing efficient services. 981 F.2d at 156.
This question focuses on the disruption — or potential disruption —
of government services because of the speech. Connick, 461 U.S. at
151.
While McVey suggests that she had a legitimate interest in publish-
ing unlawful actions, she has not advanced any unlawfulness in either
the timely preparation or the substance of the minutes prepared by
commissioners for the three committee meetings in question. As a
consequence, her efforts to bring disrepute to the Commission by dis-
tancing herself from it was based on groundless suspicions and cre-
ated public disruption.
10 MCVEY v. VIRGINIA HIGHLANDS AIRPORT COMM’N
As we indicated in our earlier opinion, "a public employee who has
a confidential, policymaking, or public contact role and speaks out in
a manner that interferes with or undermines the operation of the
agency, its mission, or its public confidence, enjoys substantially less
First Amendment protection than does a lower level employer."
McVey, 157 F.3d at 278. McVey certainly had a "confidential, policy-
making" role at the Airport as its highest ranking operations
employee. In this context, we conclude that the Commission’s interest
in public confidence and institutional harmony clearly outweighs any
interest she may have had in venting her unfounded suspicions.
McVey, as the highest ranking Airport official with nearly complete
control over its day-to-day operations and confidential information,
must have a productive and harmonious working relationship with the
Commission. Because the Commission reasonably believed that
McVey’s actions concerning the FOIA request permanently disrupted
this relationship, it was justified in terminating her employment as the
highest ranking operations officer.
III
Because we conclude that McVey has failed to demonstrate at least
two of the necessary elements for establishing a First Amendment
claim, we need not reach the second inquiry under qualified immunity
— whether her constitutional right was "clearly established." But we
note in passing that in Cromer v. Brown, 88 F.3d 1315, 1326 (4th Cir.
1996), we explained that "only infrequently will it be ‘clearly estab-
lished’ that a public employee’s speech on a matter of public concern
is constitutionally protected, because the relevant inquiry requires a
‘particularized balancing’ that is subtle, difficult to apply and not yet
well-defined." (internal quotation marks and citation omitted). Thus,
even if McVey had demonstrated a valid First Amendment claim, she
would have still faced the perhaps insurmountable obstacle of proving
that her right, deriving from the complex application of the Stroman
test, was clearly established in the factual circumstances of this case.
Accordingly, we affirm the judgment of the district court.
AFFIRMED
MCVEY v. VIRGINIA HIGHLANDS AIRPORT COMM’N 11
MICHAEL, Circuit Judge, concurring in the judgment:
Unlike the majority, I believe that McVey’s First Amendment
rights were violated. Nevertheless, I would grant qualified immunity
to the defendants because their conduct did not violate clearly estab-
lished rights of which a reasonable official would have known.
According, I concur in the judgment.
In order for McVey to survive summary judgment on her claim of
retaliatory discharge, the following factors must be present: (1) she
spoke as a citizen upon a matter of public concern; (2) her interest in
her speech outweighs the Airport Commission’s interest in providing
effective and efficient services to the public; and (3) there is a genuine
issue of material fact as to whether her speech was a substantial factor
in her termination. The crux of the majority’s conclusion is that
McVey’s speech does not touch on matters of public concern because
she fails to proffer sufficient evidence of any official misconduct and
because McVey was motivated more by her self-interest as an
employee than by her interest as a citizen in a matter of public con-
cern. This conclusion means that McVey not only fails to establish the
first factor, but she also loses on the balancing test of the second fac-
tor. I respectfully disagree with the majority’s First Amendment anal-
ysis.
An employee’s speech touches upon a matter of public concern if
it can "be fairly considered as relating to any matter of political,
social, or other concern to the community." Connick v. Myers, 461
U.S. 138, 146 (1983). We have said that "[t]he focus is . . . upon
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." Berger v. Battaglia, 779 F.2d 992, 999 (4th Cir. 1985)
(internal quotations omitted). In other words, "would a member of the
community be truly concerned with the employee’s speech?" Gold-
stein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 353 (4th
Cir. 2000). In performing the public interest inquiry, we must exam-
ine the content, form, and context of a given statement, as revealed
by the whole record. Connick, 461 U.S. at 147-148.
The content of McVey’s speech may be fairly characterized as
"seek[ing] to bring to light actual or potential wrongdoing or breach
12 MCVEY v. VIRGINIA HIGHLANDS AIRPORT COMM’N
of public trust" on the part of the Airport Commission. Id. at 148. Her
speech — her refusal to certify the correctness of certain minutes in
the FOIA package and her separate cover letter documenting this
refusal — draws attention to possible irregularities in the Airport
Commission’s FOIA response. Whether or not a public agency has
complied with the law is obviously of interest to the community.
Indeed, "[t]here is perhaps no subset of ‘matters of public concern’
more important than bringing official misconduct to light." Davis v.
Ector County, 40 F.3d 777, 782 (5th Cir. 1995) (footnote omitted).
See also Chappel v. Montgomery County Fire Prot. Dist. No. 1, 131
F.3d 564, 576 (6th Cir. 1997) (citation omitted) ("[P]ublic interest is
near its zenith when ensuring that public organizations are being oper-
ated in accordance with the law.").
The form and context of McVey’s speech support this conclusion.
Her expression was in the form of a signed statement to a local news-
paper, made in response to the paper’s request for public information.
Questionable activity surrounding the FOIA request provided the con-
text. According to McVey, Kenneth Stacy, chairman of the Commis-
sion, had improperly told her to delay responding to the FOIA request
in order to buy time. Furthermore, Stacy and other Commissioners
generated minutes for commission meetings after the FOIA request,
and these meetings had not been open as required by law. Virginia
Freedom of Information Act, Va. Code Ann. § 2.2-3707(C) (Michie
2001). As airport manager and custodian of the records, McVey is in
the best position to know about possible improprieties in the airport’s
public recordkeeping, and "[t]he Supreme Court has said that it is
essential to protect the rights of persons having special knowledge . . .
to speak on an issue of public concern." Korb v. Lehman, 919 F.2d
243, 247 (4th Cir. 1990) (citing Pickering v. Bd. of Educ., 391 U.S.
563, 572 (1968)).
The majority acknowledges the whistleblowing implicit in
McVey’s speech, but tries to brush it aside as merely an attempt to
protect herself in the event of any wrongdoing. That may be one pos-
sible reading. However, we are reviewing a grant of summary judg-
ment for the Airport Commission, and we are therefore obliged to
read the facts and draw inferences in the light most favorable to
McVey. Had the majority followed this basic summary judgment
principle, it surely would have concluded that McVey refused to
MCVEY v. VIRGINIA HIGHLANDS AIRPORT COMM’N 13
endorse the accuracy of the FOIA response not because she was wor-
ried about her professional reputation, but because she wanted to alert
the public to possible misconduct by her agency.
In any case, speech can address issues of public concern even if it
is partly motivated by self-interest. See, e.g., Davis, 40 F.3d at 783
n.21 (citation omitted) ("[A]n element of personal interest on the part
of an employee in the speech does not prevent a finding that the
speech as a whole raises issues of public concern."); Gustafson v.
Jones, 290 F.3d 895, 908 (7th Cir. 2002)(same). After all, in Connick
the plaintiff’s speech, a questionnaire, was motivated by a personal
grievance (about an unwanted job transfer), yet that did not automati-
cally remove the speech from the scope of public concern. Connick,
461 U.S. at 140-41, 149. "[T]he argument that an individual’s per-
sonal motives for speaking may dispositively determine whether that
individual’s speech addresses a matter of public concern is plainly
illogical and contrary to the broader purposes of the First Amend-
ment. . . . [T]he First Amendment is concerned not only with a speak-
er’s interest in speaking, but also with the public’s interest in
receiving information." Chappel, 131 F.3d at 574.
The majority next argues that McVey’s speech does not touch on
matters of public import because she "has not been able to present any
evidence that the minutes were inaccurate or that their creation was
in any way illegal." Ante at 8. However, allegations of wrongdoing
need not be proven to merit First Amendment protection. "A public
employee is not required to prove the truth of his speech in order to
secure the protections of the First Amendment." Chappel, 131 F.3d
at 576. On the contrary, we have held that the truth or falsity of an
allegation is irrelevant: plaintiffs need not "offer any evidence of the
truth of their criticisms and, likewise the defendants had no right to
seek to prove the falsity of the criticisms. The question was simply
one of law whether the statements, irrespective of their truth or fal-
sity, raised a ‘matter of public concern.’" Buschi v. Kirven, 775 F.2d
1240, 1248 (4th Cir. 1985) (internal quotations omitted). In fact, the
Supreme Court has held that a public employee’s exercise of her right
to speak out is protected "absent proof of false statements knowingly
or recklessly made." Pickering v. Bd. of Educ., 391 U.S. 563, 574
(1968). In any event, McVey has proffered evidence of improper
behavior. She has put into the record the actual minutes from the
14 MCVEY v. VIRGINIA HIGHLANDS AIRPORT COMM’N
development committee meeting of March 6, 1996, and the newly
minted minutes of that meeting submitted in response to the FOIA
request. They are not the same. McVey has also pointed to the testi-
mony of James D. Vicars, one of the commissioners who attended the
meeting. Vicars admitted in his deposition that information was inten-
tionally left out of the minutes:
Q: Is Exhibit 13 misleading because it omits information?
A: By design it is, yes.
Q: Are you saying it was intentionally misleading?
A: Yes, sir.
By improperly viewing the facts in the light most favorable to the Air-
port Commission, the majority discounts the omissions as minor ones.
The point is, however, that the Commission falsified the minutes,
which means that the Commissioners who vouched for the accuracy
of those minutes misled the public.
The majority’s erroneous conclusion that McVey’s speech did not
touch upon a matter of public concern also carried over into its bal-
ancing inquiry. "That inquiry was thus tainted from the outset by this
threshold legal error." Jackson v. Bair, 851 F.2d 714, 721 (4th Cir.
1988). To start, the majority fails to give proper weight to McVey’s
interest and the public’s interest in her speech. The majority then
compounds this error by giving too much weight to the Airport Com-
mission’s interests. The majority states that McVey had a "confiden-
tial policymaking" role and therefore her speech was entitled to less
protection. Here, the majority once again fails to consider the facts in
the light most favorable to McVey. She insists that she had no policy-
making authority, and her job description supports her. Even if
McVey was a policymaker, this would make little difference in the
context of this case. "Although a high-level policymaker enjoys little
First Amendment protection for her statements about her government
employee’s policy, the balance may be different for her statements
preventing or exposing government wrongdoing." McVey v. Stacy,
157 F.3d 271, 281 (4th Cir. 1998) (Murnaghan, J., concurring). In
MCVEY v. VIRGINIA HIGHLANDS AIRPORT COMM’N 15
addition, when the speech implicates government wrongdoing, a
showing of potential disruption does not suffice to trump the speech:
"If McVey’s speech were intended to prevent or disclose the illegal
actions of her government-employer, her interest in that speech,
which encompasses the public’s interest, would be compelling, and a
very strong showing of disruption of legitimate government functions
would be required to overcome it." Id. The Commissioners, who bear
the burden of proving disruption, see Jackson, 851 F.2d at 718, have
not pointed to any actual disruption in the running of the airport, and
they have not cited any instances of inconvenience to the public.
While the working relationship between McVey and the Commission
may have deteriorated, this inevitable byproduct of whistleblowing
should not count against McVey. See, e.g., McVey, 157 F.3d at 282
(Murnaghan, J., concurring); Keyser v. Sacramento City Unified Sch.
Dist., 265 F.3d 741, 748 (9th Cir. 2001).
In short, McVey has presented a valid First Amendment retaliation
claim.* Nonetheless, the Airport Commissioners are entitled to quali-
fied immunity unless they transgressed a bright line. "[I]n First
Amendment cases, where a sophisticated balancing of interests is
required to determine whether the plaintiff’s constitutional rights have
been violated, ‘only infrequently will it be "clearly established" that
a public employee’s speech on a matter of public concern is constitu-
tionally protected.’" McVey, 157 F.3d at 277 (quoting DiMeglio v.
Haines, 45 F.3d 790, 806 (4th Cir. 1995)). I concur in the judgment
only because I do not believe that this is one of those infrequent cases.
*The third (causation) factor for McVey’s First Amendment retaliation
claim is also satisfied because she has raised factual issues about every
single reason listed in her Notice of Contemplated Termination.