UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2317
SCOTT A. STICKLEY,
Plaintiff - Appellant,
v.
TIM SUTHERLY, Individually, and in his official capacity as
Chief of Police, Town of Strasburg; KEVIN FAUBER,
Individually, and in his official capacity as Town Manager,
Town of Strasburg; TOWN OF STRASBURG, VIRGINIA,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson,
District Judge. (5:09-cv-00004-sgw)
Argued: December 8, 2010 Decided: March 14, 2011
Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and David A.
FABER, Senior United States District Judge for the Southern
District of West Virginia, sitting by designation.
Affirmed by unpublished opinion. Senior Judge Faber wrote the
opinion, in which Chief Judge Traxler and Judge Wynn joined.
Annette Kay Rubin, Leesburg, Virginia, for Appellant. Rosalie
Fessier, TIMBERLAKE, SMITH, THOMAS & MOSES, PC, Staunton,
Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
FABER, Senior District Judge:
The parties in this case ask us to decide whether the
district court (a) correctly granted defendants Tim Sutherly and
Kevin Fauber qualified immunity for an alleged violation of
appellant Scott Stickley’s First Amendment rights and (b)
whether the district court correctly held that the Town of
Strasburg incurred no municipal liability as a consequence of
Sutherly and Fauber’s actions. We agree with the district
court’s holdings on both qualified immunity and municipal
liability, and accordingly affirm the district court’s grant of
summary judgment in defendants’ favor.
I. Factual and Procedural Background
Appellant Scott Stickley joined the Strasburg, Virginia
Police Department (“SPD”) in 1996. Stickley received a number
of promotions during his years with the SPD and earned high
marks on his assessments. In 2006 Stickley applied to be the
Chief of Police, but was not selected. Instead, the town chose
Tim Sutherly as the new Chief in February 2007.
During the spring of 2007, Sutherly allegedly made comments
to people in the community indicating his intention to dismiss
Stickley from the SPD. On July 10, 2007, Sutherly placed
Stickley on administrative leave, suspended Stickley’s police
powers incident to a disciplinary action, and assigned him to
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the position of School Resource Officer. Stickley alleges that
he received comments from residents stating that Sutherly
intended to further retaliate against Stickley in the future.
Toward the beginning of August 2007, Stickley’s situation began
to receive attention in the local press. The Northern Virginia
Daily published a front-page article on police officer
discipline in Strasburg, and a letter to the editor followed the
article, calling for a community-wide discussion of the SPD
disciplinary actions. On May 29, 2008, without any apparent new
developments, Sutherly demoted Stickley to the position of a
Patrol Officer, reassigned Stickley’s duties as primary firearms
instructor to another officer, and forbade Stickley from filing
a grievance about the demotion and reassignment.
Shortly thereafter, Carl Rinker, a Town Council Member
approached Stickley and asked him about his demotion. The two
allegedly had a casual conversation, after which Rinker called
Sutherly to discuss Stickley’s demotion. Following Sutherly’s
conversation with Rinker, Sutherly placed Stickley on
administrative leave while the SPD investigated whether Stickley
had violated SPD regulations by going outside the chain of
command in talking to Rinker. In response, Stickley sent
Sutherly a grievance notice on June 11, 2008, alleging a
violation of Stickley’s First Amendment rights, among others.
The next day, Stickley went before a Board of Inquiry, convened
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at Sutherly’s behest, accused of insubordination. On June 20,
2008, Sutherly advised Stickley that his employment would be
terminated because the Board of Inquiry had found that Stickley
had committed two Category III infractions of the SPD
regulations. Specifically, Sutherly and Kevin Fauber, the
Strasburg Town Manager, dismissed Stickley for having taken
“action which [would impair] the efficiency or reputation of the
department, its members, or employees” and had committed
“insubordination or serious breach of discipline.” Brief of
Appellant, p. 14. At oral argument, counsel for Stickley
conceded that Stickley did not follow the prescribed grievance
procedure in voicing his objections to his demotion. The Board
of Inquiry did not address Stickley’s alleged First Amendment
violations.
On February 4, 2009, Stickley filed a 42 U.S.C. § 1983 suit
in the United States District Court for the Western District of
Virginia alleging a violation of his First Amendment rights with
respect to his conversation with Carl Rinker and subsequent
dismissal from the SPD. The district court granted summary
judgment in favor of defendants and this appeal ensued.
We review de novo a district court’s grant of summary
judgment and view the facts in the light most favorable to the
nonmoving party. Beverati v. Smith, 120 F.3d 500, 503 (4th Cir.
1997).
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II. Analysis
A. Qualified immunity for Sutherly and Fauber
“Qualified immunity shields government officials performing
discretionary functions from personal-capacity liability for
civil damages under § 1983, insofar as their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person could have known.” Campbell v.
Galloway, 483 F.3d 258, 270 (4th Cir. 2007) (internal quotations
omitted). Qualified immunity protects a defendant regardless of
whether the government official’s error is "one of fact or one
of law.” Butz v. Economou, 438 U.S. 478, 507 (1978).
In determining whether a defendant is entitled to qualified
immunity, a court need not first determine whether the defendant
actually violated the plaintiff’s statutory or constitutional
rights. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
Instead, the court may first determine whether the right in
question was “clearly established” at the time of the alleged
violation, and if it was not, the court need go no further. Id.
at 816. The court’s holding in Pearson thus makes optional what
had previously been mandatory under Saucier v. Katz, 533 U.S.
194 (2001); namely, that the court first determine whether a
violation of a plaintiff’s right had in fact occurred and only
then consider whether that right was “clearly established.” Id.
at 818. The Supreme Court noted that while the Saucier sequence
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“is often appropriate,” the courts “should be permitted to
exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed
first in light of the circumstances in the particular case at
hand.” Id. Having heard the parties’ arguments and reviewed
the record, we believe it appropriate to forego making a
determination of whether defendants actually violated Stickley’s
First Amendment rights. Instead, we consider only whether
Stickley’s right to comment on his demotion within the Strasburg
Police Department was clearly established at the time defendants
dismissed him from the force.
“A right is clearly established if the contours of the
right are sufficiently clear so that a reasonable officer would
have understood . . . that his behavior violated the right.”
Campbell v. Galloway, 483 F.3d 258, 271 (4th Cir. 2007). The
law does not expect the defendant “to sort out conflicting
decisions or to resolve subtle or open issues.” Id. at 271.
“Officials are not liable for bad guesses in gray areas; they
are liable for transgressing bright lines.” Maciariello v.
Sumner, 973 F.2d 295, 298 (4th Cir. 1992). We now turn to a
brief discussion of the law in this area to ascertain whether in
fact Stickley’s asserted right to speak was “clearly
established.”
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While public employees do not lose their right to speech by
virtue of working for a governmental entity, neither are they
free to speak on all variety of matters. Instead, the law has
struck a compromise and protects public employee speech only in
certain circumstances. Whether the First Amendment protects an
employee’s right to speak must be analyzed under a two-part
test.
First, the court must determine whether the employee’s
speech is “on a matter of public concern.” Connick v. Myers,
461 U.S. 138, 146 (1983). Speech which is on a matter of public
concern must relate to some “matter of political, social, or
other concern to the community. . . .” Id. The inquiry centers
on whether “the public or the community is likely to be truly
concerned with or interested in the particular expression.”
Kirby v. City of Elizabeth City, 388 F.3d 440, 446 (4th Cir.
2004). Where the employee’s speech is more about a matter of
personal interest, however, the First Amendment offers no
protection. Stroman v. Colleton Cnty. Sch. Dist., 981 F.2d 152,
156 (4th Cir. 1992). As the Stroman court explained,
“[p]ersonal grievances, complaints about conditions of
employment, or expressions about other matters of personal
interest do not constitute speech about matters of public
concern that are protected by the First Amendment, but are
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matters more immediately concerned with the self-interest of the
speaker as employee.” Id. (citing Connick, 461 U.S. at 147).
Second, and only if the speech relates to a matter of
public concern, the court must determine whether the employer
was justified in discharging the employee. To do this, the
court must balance the public employee’s interest in speech with
“the government’s interest in the effective and efficient
fulfillment of its responsibilities to the public.” Connick,
461 U.S. at 150. The employer need not “prove that the
employee’s speech actually disrupted efficiency, but only that
an adverse effect was ‘reasonably to be apprehended.’”
Maciariello, 973 F.2d at 300 (quoting Jurgensen v. Fairfax
Cnty., 745 F.2d 868, 879 (4th Cir. 1984)). This interest is
viewed as if on a spectrum "from university professors at one
end to policemen at the other." Id. Police officers are
considered to be “at the restricted end of the spectrum because
they are ‘paramilitary’ -- discipline is demanded, and freedom
must be correspondingly denied.” Id; see also Jurgensen, 745
F.2d at 879; Kelley v. Johnson, 425 U.S. 238 (1976) (police
department’s interest in discipline, esprit de corps, and
uniformity were sufficient state interests to defeat a due
process challenge to hair grooming regulations). “Consequently,
greater latitude is afforded to police department officials in
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dealing with dissension in their ranks.” Maciariello, 973 F.2d
at 300.
Having reviewed the substantive law governing employee
speech, we are persuaded that the law in this area is not
“clearly established” such that a reasonable person would have
known what the law necessarily required in many cases. We reach
this conclusion because the language of the Connick test itself
and the nuanced and careful approach the test requires lead to
the conclusion that an employee’s right to speech in any
particular situation will often not be immediately evident. The
first prong of the test requires a determination of whether the
employee’s speech is on a “matter of public concern.” This is a
highly fact-intensive inquiry, which may be influenced by any
variety of factors. Moreover, the line marking when something
becomes a matter of public concern is blurry, and thus the
boundary confining a public official’s behavior is hard to
discern. The second prong of the test may be even more
problematic because it requires a balancing of the employee’s
and the employer’s competing interests. This not only requires
a keen understanding of the respective interests of each party,
but also necessitates a conclusion as to which interests are
more substantial. This conclusion, in turn, becomes an
inherently subjective task, and it is the subjective nature of
the inquiry – especially when an official must undertake it ex
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ante – that makes the inquiry problematic from a qualified
immunity standpoint. As we have stated before, “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
constitutionally protected.’” McVey v. Stacey, 157 F.3d 271,
277 (4th Cir. 1998) (quoting DiMeglio v. Haines, 45 F.3d 790,
806 (4th Cir. 1995).
Our finding of qualified immunity in this case is not meant
to suggest that an employee can never show that the employer
violated his or her right to speech. In a factual situation,
for example, where it is abundantly clear that the employee is
speaking on a matter of public concern and the employer can show
no demonstrable interest in silencing the employee, the Connick
test becomes far less problematic and points the employer in one
distinct direction: to allow the speech. This would exemplify
an outlier case, where the employer properly incurs liability
because a reasonable person would have immediately realized that
the employer was violating the employee’s right by silencing the
employee. It is in such cases, ones in which the violation is
so clear, that qualified immunity does not protect the
defendant. However, such is not the type of factual situation
we are faced with here. Stickley’s comments touch on issues of
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both personal and potentially public interest, while the Chief
of Police undeniably had an important interest in maintaining
unity among his officer corps. As such, the instant case calls
for a subtle and careful analysis under Connick. It is the
requirement of this subtle and careful analysis to determine
whether the speech was of private or public concern, and whose
interest was paramount, that leads us to conclude that
Stickley’s right to speak was not clearly established, and that
therefore defendants were indeed entitled to qualified immunity.
B. Municipal Liability
A plaintiff suing a municipal entity under 42 U.S.C. § 1983
must show that his or her injury was caused by municipal policy
or custom. Monell v. New York City Dept. of Soc. Servs., 436
U.S. 658, 694 (1978). A municipality cannot be held liable
under § 1983 solely because it employed a tortfeasor. Id. at
691. “[M]unicipal liability may be imposed for a single
decision by municipal policymakers under appropriate
circumstances.” Pembaur v. City of Cincinnati, 475 U.S. 469,
480 (1986). To hold a municipality liable, the decisionmaker
must possess “’final authority to establish municipal policy
with respect to the action ordered.’” Love-Lane v. Martin, 355
F.3d 766, 782 (4th Cir. 2004) (quoting Pembaur, 475 U.S. at
481)).
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Stickley has failed to show that either Sutherly or Fauber
possessed the final authority required to establish municipal
liability. Defendants bring to the court’s attention the fact
that the Town of Strasburg retains the final decisionmaking
authority with respect to the Chief of Police’s actions. The
Town Code provides that the Chief of Police “shall always be
subject to the orders and regulations of the town manager, and
under the control of the town manager.” Brief for Appellees,
pp. 26-7. Plaintiff uses language from the SPD manual to argue
that Sutherly had “final authority in all matters of policy
operations and discipline.” Brief for Appellees, p. 28. As
defendants point out, however, the Town Council never ratified
the manual. Additionally, the fact that Sutherly had Stickley
come before a Board of Inquiry to decide the question of
Stickley’s alleged insubordination only strengthens defendants’
contention that Sutherly did not reserve to himself final
decisionmaking authority with respect to employee discipline and
termination issues.
III. Conclusion
Accordingly, the district court’s grant of summary judgment
in favor of defendants on the issues of qualified immunity and
municipal liability is
AFFIRMED.
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