PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AMY WEISCHEDEL CAMPBELL,
Plaintiff-Appellee,
v.
GERALD GALLOWAY; STANLEY
KLINGENSCHMIDT,
Defendants-Appellants,
and
THE TOWN OF SOUTHERN PINES;
SOUTHERN PINES POLICE DEPARTMENT;
OTHER UNNAMED EMPLOYEES OF THE No. 06-1038
TOWN OF SOUTHERN PINES,
Defendants.
NORTH CAROLINA LAW ENFORCEMENT
WOMEN’S ASSOCIATION; AMERICAN
CIVIL LIBERTIES UNION OF NORTH
CAROLINA LEGAL FOUNDATION,
INCORPORATED; NORTH CAROLINA
ACADEMY OF TRIAL LAWYERS,
Amici Supporting Appellee.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Russell A. Eliason, Magistrate Judge.
(CA-03-892-1)
Argued: November 29, 2006
Decided: April 20, 2007
Before WILKINS, Chief Judge, and TRAXLER and
GREGORY, Circuit Judges.
2 CAMPBELL v. GALLOWAY
Reversed and remanded in part; dismissed in part by published opin-
ion. Judge Traxler wrote the opinion, in which Chief Judge Wilkins
and Judge Gregory joined.
COUNSEL
ARGUED: Ann S. Estridge, CRANFILL, SUMNER & HARTZOG,
L.L.P., Raleigh, North Carolina, for Appellants. Stephen Ashley
Boyce, Winston-Salem, North Carolina, for Appellee. ON BRIEF:
Norwood P. Blanchard, III, CRANFILL, SUMNER & HARTZOG,
L.L.P., Wilmington, North Carolina, for Appellants. Lynn Fontana,
Durham, North Carolina, for Amici Supporting Appellee.
OPINION
TRAXLER, Circuit Judge:
Amy Campbell sued the town of Southern Pines, North Carolina,
and certain individual defendants after she was fired from her job as
a police officer. Campbell raised Title VII discrimination and retalia-
tion claims as well as various constitutional claims asserted under 42
U.S.C.A. § 1983 (West 2003). The magistrate judge granted summary
judgment on some of Campbell’s claims, but concluded that her Title
VII claims against the town must proceed to the jury and that her First
Amendment and Equal Protection claims against Gerald Galloway
and Stanley Klingenschmidt (together, the "defendants") should like-
wise proceed to the jury. The defendants appeal, contending that they
are entitled to qualified immunity on Campbell’s constitutional claims.1
As to the First Amendment claims, we agree that the defendants are
entitled to qualified immunity, and we therefore reverse the decision
of the magistrate judge in that regard. We dismiss as interlocutory the
defendants’ appeal of Campbell’s Equal Protection claims.
1
The Title VII claims that the magistrate judge allowed to proceed to
the jury are not part of this appeal.
CAMPBELL v. GALLOWAY 3
I.
Amy Campbell was one of only a few female police officers in the
Southern Pines, North Carolina, police department. She was hired on
a probationary basis in May 2000. After completing the field training
program, Campbell in December 2000 was assigned to work with one
of the four teams within the patrol division. She was later transferred
to the "Charlie" patrol team. The team lieutenant was Chris Burgess;
next in command was Nick Polidori, the team sergeant.
There is evidence suggesting that Campbell was not well-liked by
the other members of the Charlie team. For example, the team regu-
larly had breakfast together at the end of a night shift, but Campbell
claims that she was never invited; when a restaurant donated food to
the department one night, the other team members ate it all without
telling Campbell about it. Campbell attributed at least some of the
problems to the fact that when she was a trainee, before she was
assigned to Charlie team, she had reported Polidori for sleeping on the
job.
In August 2001, Campbell met with Burgess (the team lieutenant)
to talk about her performance. Burgess informed Campbell that he
was going to write her up for missing an on-call day. Campbell pro-
tested, claiming that she handled the on-call day the way everyone
else in the department did. Campbell then began voicing other com-
plaints. She told Burgess that there was one set of rules for her and
another for everyone else and that Polidori did not back her up during
calls as he did the male officers. Burgess understood Campbell to be
complaining about sexual harassment, and he reported the matter to
Gerald Galloway, the Chief of Police. After consulting with the
town’s human resources officer and the town attorney, Galloway
asked Campbell to provide him with a written report outlining her
complaints.
Campbell turned in a thirteen-page memo setting out her com-
plaints. Much of the memo focused on perceived slights, such as the
team’s failure to invite her to breakfast and Polidori’s refusal to let
her wash her patrol car while on duty. Some of the complaints, how-
ever, involved conduct that could be viewed as involving sexual
harassment, such as complaints that officers made lewd comments in
4 CAMPBELL v. GALLOWAY
her presence and made comments belittling women. The town investi-
gated her complaints, although Campbell was not interviewed. The
town concluded that some inappropriate conduct had occurred, but
that the inappropriate conduct did not amount to sexual harassment.
The town did, however, hold a sexual harassment seminar for the
police department.
In December 2001, Campbell was transferred to a patrol team
headed up by Klingenschmidt. It was Burgess, however, who com-
pleted Campbell’s evaluation in February 2002. The evaluation gave
Campbell a "needs improvement" rating in every individual category
and "needs improvement" in her overall rating. "Needs improvement"
is the lowest rating that can be given, and receiving that rating pre-
cludes an officer from receiving a pay increase. The evaluation rec-
ommended that the routine probationary period which Campbell
began when she was promoted to Police Officer I be extended for
sixty days. Chief Galloway and the town manager approved the eval-
uation.
Campbell believed that the evaluation was unfair, and she filed a
grievance challenging it. Campbell arrived early for the March 12
grievance hearing and found Chief Galloway, Burgess, and Klingen-
schmidt meeting alone in Galloway’s office. The meeting ended about
an hour later and the three men then convened the grievance hearing.
Campbell believed that the men had already decided the outcome of
the hearing, and she refused to participate in the hearing except to ask
that the grievance proceed to the next step in the process.
Campbell sent a letter to Chief Galloway the next day to set out her
concerns about the grievance hearing. She complained that Klingen-
schmidt had raised his voice when she refused to discuss her griev-
ance. She stated that she believed Klingenschmidt had threatened her
when he called her a disgruntled employee and told her that he would
be watching her for the next sixty days.
On March 18, 2002, Campbell filed an EEOC charge alleging gen-
der discrimination and retaliation. Chief Galloway received a copy of
the charge a few days later. On April 3, a second-step hearing on
Campbell’s grievance was held. Campbell asked that the matter pro-
ceed to the next step because Galloway did not render a decision at
CAMPBELL v. GALLOWAY 5
the second-step hearing. Campbell was fired before the third-step
hearing was held.
Campbell’s firing came a few days after an incident that happened
on April 4, 2002. That night, Klingenschmidt, Sergeant Tim Mercer,
and Officer Jack Austin became involved in a high-speed chase with
a truck driven by Carlton Terry. When Terry pulled into a parking lot
and ran from his truck, Mercer began chasing him. Austin arrived on
the scene, and he also began chasing Terry. Mercer stopped chasing
when his flashlight quit working, but Austin was still chasing Terry.
Campbell arrived on the scene in her patrol car, drove past Austin and
around the block. Campbell contends that she did not see Terry but
thought she saw someone going behind nearby houses and that she
was trying to cut him off with the car. When Campbell stopped her
patrol car, Austin came out from behind the houses where he was
searching and asked for her flashlight, and together they looked for
Terry.
There is some dispute about what happened next. In his deposition
and affidavit, Austin says Terry was right in front of him when Camp-
bell passed and that she could have caught him if she had gotten out
of her patrol car. Austin was angry and thought that Campbell had left
him exposed to danger by not joining in the foot chase. He com-
plained to Mercer about Campbell not backing him up, and Mercer
referred him to Klingenschmidt, who told Austin to write a memo. In
his memo, Austin wrote that Campbell drove around the block to try
to cut off the suspect. Mercer told him that he was speculating about
why Campbell drove around the block, and he told Austin to remove
that statement from his memo. Campbell and her husband (also a
Southern Pines police officer), however, contend that Austin told
them after the incident that Campbell had done nothing wrong and
that Klingenschmidt and Mercer asked him for the memo. Austin told
the Campbells that Klingenschmidt and Mercer had said that they
were out to fire Campbell during her 60-day probation period.
After the April 4 incident, Klingenschmidt wrote a memo to Chief
Galloway. In Klingenschmidt’s view, the April incident was the last
straw in a continuing course of unacceptable conduct. Klingenschmidt
recounted in the memo two other incidents where he believed that
Campbell had failed to back up other officers and left them in danger.
6 CAMPBELL v. GALLOWAY
The first incident happened in October 2000, when Campbell was in
training. She went on a domestic disturbance call with Sergeant Poli-
dori and Officer Hogan. When Polidori attempted to arrest the sus-
pect, the suspect became violent. According to Klingenschmidt,
Campbell stood idly by while Polidori and Hogan struggled to subdue
the suspect. The other incident happened in September 2001. Camp-
bell passed a car that somewhat matched the description of a car
driven by suspects in an armed burglary. She pulled in behind the car
and waited for backup. While she was waiting, one of the occupants
got out of the car and went towards the house. Just as Polidori arrived,
the other occupant of the car got out and ran. Polidori went after the
suspect on foot, and Campbell again drove around in her patrol car
in an effort to cut off the suspect. She never told Polidori about the
first occupant leaving the car. Lieutenant Burgess (then her immediate
supervisor) talked to her about this incident at the time. He believed
that she should have joined in the foot chase with Polidori and that
leaving him to chase alone exposed him to the possibility of an
ambush.
In his memo, Klingenschmidt recommended that Campbell be dis-
ciplined. Chief Galloway decided that Campbell’s actions were put-
ting other officers at risk and that she should be fired. Galloway knew
that Campbell had filed an EEOC complaint and that she would add
a claim of retaliatory termination, but he thought that it was too dan-
gerous to leave her on the job. After conferring with the town attor-
ney, Galloway fired Campbell.
As expected, Campbell added a termination claim to her EEOC
complaint. After receiving her right-to-sue notice, she filed this
action. In her complaint, she asserted Title VII claims of discrimina-
tion and retaliation. She also asserted constitutional claims under
§ 1983. Campbell claimed she was discriminated against because of
her gender by being fired for doing the same thing that male officers
did—using their patrol cars to try to cut off a suspect rather than join-
ing in an ongoing foot chase. Campbell also contended that the defen-
dants retaliated against her for filing the sexual harassment
complaints by giving her a low evaluation and by firing her.
The magistrate judge granted summary judgment in favor of the
town on Campbell’s retaliation claim involving the February 2002
CAMPBELL v. GALLOWAY 7
evaluation, but denied summary judgment to the town on the discrim-
inatory and retaliatory discharge claims. As to Campbell’s § 1983
claims, the magistrate read her complaint as raising a claim of dis-
criminatory discharge in violation of her Equal Protection rights, as
well as a claim that the individual defendants retaliated against her for
exercising her First Amendment right to speak out about sexual
harassment on the job. As to the Equal Protection claims against Gal-
loway and Klingenschmidt, the magistrate judge concluded that sum-
mary judgment should be denied and that the claims should proceed
to trial.
With regard to the First Amendment claims against the defendants,
the magistrate judge concluded that Campbell’s speech (the letter to
Galloway) involved a matter of public concern (sexual harassment)
and that it was for the jury to decide whether there was a sufficiently
weighty reason to justify the termination. See, e.g., Pickering v. Board
of Educ., 391 U.S. 563, 568 (1968) (explaining that a state may not
dismiss a public employee because of the employee’s exercise of
speech protected by the First Amendment); Love-Lane v. Martin, 355
F.3d 766, 776 (4th Cir. 2004) ("Retaliatory employment action vio-
lates a public employee’s right to free speech" if the speech "relate[s]
to a matter of public concern" and the "employee’s interest in First
Amendment expression . . . outweigh[s] the employer’s interest in
efficient operation of the workplace" (internal quotation marks omit-
ted)). The magistrate judge rejected the defendants’ claim that they
were entitled to qualified immunity on the First Amendment claim.2
Chief Galloway and Klingenschmidt appeal, arguing that the magis-
trate judge erred by denying them qualified immunity on Campbell’s
§ 1983 claims.
II.
"In a suit against an officer for an alleged violation of a constitu-
tional right, the requisites of a qualified immunity defense must be
considered in proper sequence." Saucier v. Katz, 533 U.S. 194, 200
(2001). The threshold inquiry is whether the facts alleged, taken in the
2
The magistrate judge addressed the qualified immunity question in a
separate order, after the defendants filed a timely motion under Rule
59(e) of the Federal Rules of Civil Procedure.
8 CAMPBELL v. GALLOWAY
light most favorable to Campbell, demonstrate the violation of a con-
stitutional right. If so, then we must determine whether the contours
of the right were clearly established such that a reasonable official
would understand that his actions violated that right. See id.; Wil-
lingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005).
A.
We begin with Campbell’s First Amendment claim. "It is clearly
established that a State may not discharge an employee on a basis that
infringes that employee’s constitutionally protected interest in free-
dom of speech." Rankin v. McPherson, 483 U.S. 378, 383 (1987). To
determine whether a public employer’s action against an employee
violates the First Amendment, we must balance the employee’s inter-
est "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 services it performs through its employees." Connick v.
Myers, 461 U.S. 138, 142 (1983) (internal quotation marks omitted).
"[W]hen public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amend-
ment purposes, and the Constitution does not insulate their communi-
cations from employer discipline." Garcetti v. Ceballos, 126 S. Ct.
1951, 1960 (2006).
When balancing the competing interests of the public employer and
employee, we must first determine whether the speech at issue may
be "fairly characterized as constituting speech on a matter of public
concern." Id. at 146. If the speech does involve a matter of public
concern, then we must determine whether the employee’s First
Amendment interest "outweighs the public employer’s interest in
what the employer has determined to be the appropriate operation of
the workplace." Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir.
2000) (en banc).
The defendants argue that Campbell’s speech was not a matter of
public concern and that Campbell’s termination therefore did not vio-
late her First Amendment rights.3 The defendants alternatively argue
3
As noted above, the Supreme Court in Garcetti v. Ceballos, 126 S. Ct.
1951 (2006), held that speech made by a public employee pursuant to the
CAMPBELL v. GALLOWAY 9
that it was not clearly established that Campbell’s speech was a mat-
ter of public concern and that they are therefore entitled to qualified
immunity on her First Amendment claims.4
(1)
"Speech involves a matter of public concern when it involves an
issue of social, political, or other interest to a community." Kirby v.
City of Elizabeth City, 388 F.3d 440, 446 (4th Cir. 2004). "Personal
grievances, complaints about conditions of employment, or expres-
sions about other matters of personal interest do not constitute speech
about matters of public concern that are protected by the First
Amendment, but are matters more immediately concerned with the
employee’s official duties is not protected by the First Amendment. The
defendants on appeal do not contend that Campbell’s speech was pursu-
ant to her employment duties under Garcetti, and because Garcetti was
decided after the proceedings below were completed, there is no factual
basis upon which we could rest such a conclusion. In another case, the
absence of factual record might require us to remand so that the record
could be developed and the district court could reconsider the issues
under the Garcetti framework. In this case, however, further factual
development is unnecessary. As we will explain in more detail later, we
conclude that the defendants are entitled to qualified immunity on Camp-
bell’s First Amendment claims. Our qualified immunity ruling would bar
Campbell’s claims even if her complaints were found to fall outside the
scope of Garcetti, and a determination that her speech was pursuant to
official duties would simply provide an additional basis for rejecting
Campbell’s First Amendment claims. Given these circumstances, we
need not further consider the Garcetti issue, and we express no opinion
as to how Garcetti would apply to facts similar to those in this case.
4
We note that the defendants do not challenge the First Amendment
claim on causation grounds. That is, they do not contend that summary
judgment should have been granted because Campbell presented no evi-
dence that her letter to Chief Galloway was a substantial factor in the
decision to fire her. See, e.g., Love-Lane v. Martin, 355 F.3d 766, 776
(4th Cir. 2004) (explaining that a First Amendment retaliation claim
requires proof that the protected speech was a substantial factor in the
decision to take the challenged retaliatory action). Nor do they contend
that, even if causation were established, Campbell’s letter was disruptive
such that the Town’s interest in the efficient operation of the police
department outweighed Campbell’s First Amendment interests.
10 CAMPBELL v. GALLOWAY
self-interest of the speaker as employee." Stroman v. Colleton County
Sch. Dist., 981 F.2d 152, 156 (4th Cir. 1992). "Whether an employ-
ee’s speech addresses a matter of public concern must be determined
by the content, form, and context of a given statement, as revealed by
the whole record." Connick, 461 U.S. at 147-48.
Of the many issues raised in Campbell’s letter to Chief Galloway,
the only issues that might qualify as matters of public concern are
those raising questions of sexual harassment; the remaining issues are
nothing more than personal complaints and grievances about condi-
tions of employment that cannot be considered matters of public con-
cern. See Stroman, 981 F.2d at 156. The defendants, however, argue
that the sexual harassment complaints make up only a small portion
of Campbell’s thirteen-page letter and that the letter on the whole
should be understood as raising only personal complaints. We dis-
agree.
While we must view Campbell’s letter "as a single expression of
speech to be considered in its entirety," id. at 157, that does not give
us license to ignore the portions of the letter raising issues of sexual
harassment simply because most of the letter is devoted to personal
grievances. In Connick, for example, the Supreme Court proceeded to
the interest-balancing step of the analysis because one small portion
of the speech at issue (a survey focusing on workplace morale and
discipline) involved a matter of public concern. See Connick, 461
U.S. at 149 ("Because one of the questions in Myers’ survey touched
upon a matter of public concern, and contributed to her discharge[,]
we must determine whether Connick was justified in discharging
Myers." (emphasis added)). And in Stroman, we likewise treated as
a matter of public concern a letter that was in large part a discussion
of personal grievances but also mentioned a matter that could have
been of public concern. See Stroman, 981 F.2d at 158 ("When speech
arguably relates to a matter of public concern, we prefer to apply the
approach taken in Connick and weigh whatever public interest com-
mentary may be contained in the letter against the state’s dual interest
as a provider of public service and employer of persons hired to pro-
vide that service." (emphasis added)). Accordingly, Campbell’s letter
cannot be deemed to be a matter of private concern simply because
the bulk of the letter addresses what can only be viewed as personal
grievances.
CAMPBELL v. GALLOWAY 11
The question, then, is whether Campbell’s complaints about sexual
harassment were a matter of public concern. While a complaint about
sexual harassment certainly can amount to a matter of public concern,
we have held that a complaint about sexual harassment or discrimina-
tion is not always a matter of public concern. See Seemuller v. Fairfax
County Sch. Bd., 878 F.2d 1578, 1582 n.4 (4th Cir. 1989) ("[N]ot
every statement about discrimination based on sex involves a matter
of public interest."). Other circuits have likewise rejected any claim
that sexual harassment complaints are always matters of public con-
cern. See, e.g., Azzaro v. County of Allegheny, 110 F.3d 968, 980 (3d
Cir. 1997) (en banc) ("[W]e do not suggest that all public employee
complaints about sexual harassment are matters of public concern.").
In some circuits, the dispositive question appears to be whether the
employee was complaining about a pattern of discrimination or was
merely seeking redress for his or her own personal complaint. See
David v. City of Denver, 101 F.3d 1344, 1356 (10th Cir. 1996)
("Officer David’s complaints and letter allege that she has been per-
sonally subjected to sexual harassment, retaliation, and unwarranted
disciplinary action. Her allegations focus on the conditions of her own
employment, and . . . Officer David [does not] allege that other
employees have been subjected to harassment or retaliation or that the
harassment and retaliation has interfered with the Department’s per-
formance of its governmental responsibilities. Therefore, Officer
David’s statements do not involve matters of public concern under the
Connick standard."); Morgan v. Ford, 6 F.3d 750, 755 (11th Cir.
1993) (concluding that employee’s harassment complaint was not
matter of public concern because the employee "was driven by her
own entirely rational self-interest in improving the conditions of her
employment. Her complaints about Ford’s behavior, as serious as
they were, centered around her private matters, not matters of social
interest. As an employee grievance, Morgan’s speech was not a mat-
ter of public concern."); Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d
134, 143 (2d Cir. 1993) ("Had Saulpaugh’s complaints to her supervi-
sors implicated system-wide discrimination they would have unques-
tionably involved a matter of public concern. Here, however, there
has been no violation of the First Amendment, because Saulpaugh’s
complaints were personal in nature and generally related to her own
situation." (citations and internal quotation marks omitted)); Gray v.
Lacke, 885 F.2d 399, 411 (7th Cir. 1989) ("Gray complained to her
12 CAMPBELL v. GALLOWAY
supervisors in order to have the sexual harassment stopped. Her com-
munication related solely to the resolution of a personal problem.
Therefore, this claim did not state an action under § 1983." (internal
citation omitted)).
Not all circuits, however, find this distinction between claims of
personal versus systemic discrimination to be dispositive of the public
concern question. For example, in Azzaro, the Third Circuit found a
complaint about sexual harassment to be a matter of public concern
even though the employee was seeking relief only on her own per-
sonal complaint. See Azzaro, 110 F.3d at 978-79. And this court in
Beardsley v. Webb, 30 F.3d 524 (4th Cir. 1994), concluded, albeit
without discussion of the public concern issue, that a First Amend-
ment retaliation claim of a public employee who complained about
personal sexual harassment was properly submitted to the jury. See id.
at 530-31.
Beyond recognizing that not every statement about sexual discrimi-
nation involves a matter of public concern, our cases have provided
little concrete guidance on the question of when such a complaint
amounts to an issue of public concern. We see no reason to try to
articulate any sort of bright-line rule in this case, nor are we certain
that a bright-line rule would be consistent with the Supreme Court’s
directive that we engage in a case- and fact-specific inquiry to deter-
mine "[w]hether an employee’s speech addresses a matter of public
concern," by considering "the content, form, and context of a given
statement, as revealed by the whole record." Connick, 461 U.S. at
147-48. The case law from other circuits provides many examples of
situations where a complaint of sexual harassment by a single
employee is not a matter of public concern, but we can certainly envi-
sion situations where such a claim might well constitute a matter of
public interest—for example, where a high-ranking public official is
the offender. Cf. Azzaro, 110 F.3d at 978-79 (concluding that employ-
ee’s complaint of sexual harassment by executive assistant to county
commissioner was a matter of public concern). To conclude, as the
defendants would have us do, that a personal complaint about dis-
crimination affecting only the complaining employee can never
amount to an issue of public concern could improperly limit the range
of speech that is protected by the First Amendment. Accordingly, we
believe it best to leave the law where we found it: Complaints of sex-
CAMPBELL v. GALLOWAY 13
ual harassment are not per se matters of public concern; whether such
complaints are in any given case depends on the content, form and
context of the complaint. Applying that standard to this case and
viewing the complaints in the light most favorable to Campbell, we
conclude that Campbell’s complaints about sexual discrimination do
amount to matters of public concern.
Campbell complained about multiple instances of inappropriate
conduct directed towards her. For example, while Campbell was in
training, two officers while in her presence would "run up to each
other and pretend to be having sex." J.A. 386. When Campbell was
posing as a suspect during a training exercise, the gun she had tucked
in her waistband fell down the front of her pants. Sergeant Polidori
reached into Campbell’s pants to retrieve the gun and then said,
"‘Guess I got the first feel on the new girl.’" J.A. 386. Campbell
stated in the letter that other officers told her that Lieutenant Burgess
regularly positioned himself so that he could look down Campbell’s
shirt. Campbell also complained that male officers did not back her
up on dangerous calls, a complaint echoed by another female officer.
Campbell’s letter also included complaints about inappropriate
conduct directed towards other females. She complained about inap-
propriate conduct and comments by male officers in front of suspects
and witnesses, as well as inappropriate conduct and comments by
male officers directed at other female employees. For example, Lieu-
tenant Burgess at a Christmas party said in front of Campbell and
another female officer that "‘[w]omen do not belong in law enforce-
ment.’" J.A. 377. A discussion about scratches on the steering wheel
of a patrol car degenerated into complaints about wives and women,
with Lieutenant Burgess looking directly at a female trainee and say-
ing, "‘Isn’t that just like . . . women. They mess with you at work and
they mess with you [when] you’re not at work.’" J.A. 388. Campbell
recounted in the letter an incident where she and a male officer were
at the home of a female "subject." The officers and several men and
women were in the living room waiting for the subject when the male
officer, watching a television program, commented about how much
he enjoyed watching "‘two girls running.’" J.A. 386. Campbell
described another incident where Lieutenant Burgess escorted a
female suspected of driving while intoxicated to the bathroom and
required her to leave the door open so he could watch her, even
14 CAMPBELL v. GALLOWAY
though Campbell had been in the room with the suspect and could
have taken her to the bathroom.
In our view, these complaints, which involve improper treatment of
members of the public as well as female officers, would be of genuine
interest and concern to the public. See Edwards v. City of Goldsboro,
178 F.3d 231, 247 (4th Cir. 1999) (explaining that whether a public
employee’s speech touches on a matter of public concern "rests on
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" (internal quotation marks omitted)). It may be that the con-
duct about which Campbell complained would not be enough to sup-
port a hostile environment claim under Title VII. Nonetheless, the
First Amendment protects statements by public employees on matters
of public concern; its protection is not limited to complaints about
conduct that is ultimately found to violate Title VII.
Moreover, we note that Campbell did not bring the sexual harass-
ment issues to Chief Galloway’s attention in order to resolve her own
personal problem. She brought the issue up to Sergeant Burgess in the
course of an apparently angry discussion about him writing her up for
missing an on-call day; it was Burgess who took the matter to Chief
Galloway. Although Campbell’s memo to Galloway states that she
had been discriminated against, the memo also speaks in much
broader terms of "sexual harassment within your police department."
J.A. 376. It thus appears that Campbell was seeking to challenge the
practice within the department as much as she was seeking a resolu-
tion of her own complaint.
Accordingly, after considering the content, form, and context of
Campbell’s complaints in the light most favorable to her, we conclude
that her complaints raise issues that would be of genuine concern to
the public. See Edwards, 178 F.3d at 247. Campbell’s complaints
must therefore be viewed as touching on matters of public concern
under Connick.
(2)
We turn now to the alternative argument made by the defendants—
that even if Campbell’s complaints were matters of public concern,
CAMPBELL v. GALLOWAY 15
they are entitled to qualified immunity because the existing case law
did not clearly establish that the kind of complaints that Campbell
made were matters of public concern.
"Qualified immunity shields government officials performing dis-
cretionary functions from personal-capacity liability for civil damages
under § 1983, insofar as their conduct does not violate clearly estab-
lished statutory or constitutional rights of which a reasonable person
would have known." Ridpath v. Board of Governors Marshall Univ.,
447 F.3d 292, 306 (4th Cir. 2006) (internal quotation marks omitted).
"A right is clearly established if the contours of the right are suffi-
ciently clear so that a reasonable officer would have understood,
under the circumstances at hand, that his behavior violated the right."
Bailey v. Kennedy, 349 F.3d 731, 741 (4th Cir. 2003) (internal quota-
tion marks and alteration omitted).
There is no doubt that the broad legal principle governing this case
—that public employees may not be fired on a basis that infringes on
their First Amendment rights— was clearly established at the time of
Campbell’s termination. At this stage of our analysis, however, our
focus must be narrower, as the determination of whether a given right
was clearly established requires us to define that right "at a high level
of particularity." Edwards, 178 F.3d at 251. When the right is defined
at the proper level of particularity and the analysis is directed to what
is disputed in this case, the question becomes whether a reasonable
officer would have known that Campbell’s rambling thirteen-page
memo to Chief Galloway, which focused overwhelmingly on personal
grievances and vague gripes about fellow officers not being very nice
to her, touched on a matter of public concern, thus entitling Campbell
to the protection of the First Amendment. We answer that question in
the negative.
"When determining whether a reasonable officer would have been
aware of a constitutional right, we do not impose on the official a duty
to sort out conflicting decisions or to resolve subtle or open issues."
McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998). "Officials are not
liable for bad guesses in gray areas; they are liable for transgressing
bright lines." Id. (internal quotation marks omitted). As discussed
above, this circuit has provided limited guidance on when complaints
about sexual harassment will amount to matters of public concern.
16 CAMPBELL v. GALLOWAY
We have noted that not all claims of discrimination amount to matters
of public concern, see Seemuller, 878 F.2d at 1582 n.4, but we have
also held that an employee’s personal complaint about sexual harass-
ment was enough to send the employee’s First Amendment claim to
the jury, see Beardsley, 30 F.3d at 530-31. Our fact-specific resolu-
tion of individual cases has done little to sharpen the line between
cases where the complaints about discrimination are matters of public
concern and those where such complaints are not matters of public
concern.
In our view, the speech at issue in this case falls within the gray
area between speech that clearly is a matter of public concern and
speech that clearly is not a matter of public concern. Campbell’s com-
plaints overwhelmingly addressed purely personal grievances, and the
portions of her letter mentioning improper sexual conduct and actions
are not as clear and detailed as they could be. Although we have con-
cluded that Campbell’s complaints do touch on a matter of public
concern, we reach that conclusion under a standard of review that
requires us to view the evidence in the light most favorable to Camp-
bell. And even under this favorable standard of review, the question
is a close one. Under these circumstances, we cannot conclude that
the defendants unreasonably viewed Campbell’s letter as involving
personal grievances only, particularly given the state of the law in
other circuits. Cf. Edwards, 178 F.3d at 251 ("If a right is recognized
in some other circuit, but not in this one, an official will ordinarily
retain the immunity defense." (internal quotation marks and alteration
omitted)). Because the facts of this case are close enough to the ill-
defined line between private speech and speech involving matters of
public concern, we cannot hold the defendants responsible for their
reasonable but incorrect guess about how the law would apply to the
facts of this case. See Saucier, 533 U.S. at 205 ("The concern of the
immunity inquiry is to acknowledge that reasonable mistakes can be
made as to the legal constraints on particular police conduct. It is
sometimes difficult for an officer to determine how the relevant legal
doctrine . . . will apply to the factual situation the officer confronts.
. . . If the officer’s mistake as to what the law requires is reasonable,
however, the officer is entitled to the immunity defense.").
Accordingly, we conclude that the defendants are entitled to quali-
fied immunity on Campbell’s First Amendment claims. We therefore
CAMPBELL v. GALLOWAY 17
reverse the magistrate judge’s denial of summary judgment on that
claim, and we remand with instructions to dismiss those claims.
B.
We turn now to the defendants’ contention that the magistrate
judge erred by denying them summary judgment on Campbell’s
Equal Protection claim of discriminatory termination.5
The defendants contend that their motion should have been granted
because they are entitled to an inference of non-discrimination under
Proud v. Stone, 945 F.2d 796 (4th Cir. 1991), which held that a strong
inference of non-discrimination arises in cases "where the hirer and
the firer are the same individual and the termination of employment
occurs within a relatively short time span following the hiring." Id. at
797. We lack jurisdiction to consider this claim.
We have jurisdiction to consider appeals from the denial of quali-
fied immunity under the collateral order doctrine. "To the extent that
the denial of qualified immunity rests on a question of law, the deci-
sion is ‘final’ pursuant to the collateral order doctrine." Washington
v. Wilmore, 407 F.3d 274, 281 (4th Cir. 2005).
Our appellate jurisdiction does not extend, however, to
questions of evidence sufficiency, such as whether the plain-
tiff has offered sufficient evidence to create a genuine ques-
tion of material fact. . . . In other words, we may review an
official’s contention that the facts alleged do not state a vio-
lation of clearly established law; we may not review the
official’s claim that the appellee failed to create a genuine
issue of material fact with respect to whether the acts
occurred as alleged.
5
Campbell’s Equal Protection claim mirrors her Title VII claim. Title
VII does not provide the exclusive remedy for discrimination in employ-
ment, however, and public employees are entitled to bring a § 1983
action asserting Equal Protection claims. See Booth v. Maryland, 327
F.3d 377, 382 (4th Cir. 2003); Beardsley v. Webb, 30 F.3d 524, 526-27
(4th Cir. 1994).
18 CAMPBELL v. GALLOWAY
Id. (internal quotation marks omitted). The defendants’ Proud v.
Stone argument is clearly one challenging the sufficiency of the evi-
dence supporting Campbell’s Equal Protection claim, and we there-
fore cannot consider it on appeal.
The defendants also contend that summary judgment should have
been granted because in an affidavit, Campbell asserted that she was
fired in retaliation for complaining about sexual harassment but did
not assert that she was fired because of her gender. Because retalia-
tion against a public employee for protected speech supports only a
First Amendment claim, not an Equal Protection claim, see Kirby,
388 F.3d at 447, the defendants contend that her Equal Protection
claim should have been dismissed.
In support of this contention, the defendants point to a few state-
ments in an affidavit submitted by Campbell in which she states that
she was fired for complaining about sexual harassment without men-
tioning her claim that she was fired for doing the same thing (using
her patrol car to try to cut off a fleeing suspect) that male officers rou-
tinely did. In other portions of Campbell’s affidavit and in her deposi-
tion, however, Campbell refers generally to the different set of rules
that applied to the male officers, and in the affidavit relied upon by
the defendants, Campbell specifically discusses the fact that male
officers have used their patrol car to cut off a suspect who was being
chased by another officer. Under these circumstances, we believe that
this challenge by the defendants again amounts to a challenge to the
sufficiency of the evidence supporting Campbell’s Equal Protection
claim, and we therefore conclude that we lack jurisdiction to consider
the argument.
III.
Accordingly, for the foregoing reasons, we hereby reverse the mag-
istrate judge’s denial of summary judgment on Campbell’s First
Amendment claims, and we remand with instructions to dismiss those
claims. Because we lack jurisdiction to consider the defendants’ chal-
lenges to the denial of summary judgment on Campbell’s Equal Pro-
tection claims, we dismiss that portion of the appeal.
REVERSED AND REMANDED IN PART;
DISMISSED IN PART