Richard A. Whalen v. The Roanoke County Board of Supervisors William F. Clark, Individually Raymond Eugene Robertson, Individually

ERVIN, Circuit Judge,

concurring in part and dissenting in part:

I.

I am unable to agree with the decision of the majority that the district court erred when it granted Clark’s motion for judgment notwithstanding the verdict in this ease. For that reason, I respectfully dissent from that portion of the opinion.

I accept the majority’s view that when Whalen appeared as a witness before the Virginia State Corporation Commission in March 1976 and opposed Appalachian Power Company’s (APCO) plan to erect electric transmission lines in Floyd County, Whalen’s testimony was protected by the first amendment because it related to a matter of public interest. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Furthermore, the jury’s specific finding that this testimony was a substantial or motivating factor in Clark’s decision to fire Whalen on June 19, 1979, cannot be disregarded or ignored.

In spite of this evidence, I believe that the district court correctly granted Clark’s motion for judgment. It is clear that in this circuit the standard for granting a motion for judgment notwithstanding the *227verdict under Fed.R.Civ.P. 50(b) is the same as that for allowing a motion for a directed verdict. Hawkins v. Sims, 137 F.2d 66, 67 (4th Cir.1943). A directed verdict should be granted if, after viewing the evidence in the light most favorable to the nonmoving party, and resolving all conflicts in that party’s favor, the court finds that the verdict is not supported by substantial evidence. Id. at 67; accord Gairola v. Commonwealth of Virginia Department of General Services, 753 F.2d 1281, 1285 (4th Cir.1985); Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350 (4th Cir.1941). We have further refined this test by holding that “an issue can only be [properly] submitted to the jury when it is supported by ‘evidence which shows a “probability” and not a mere “possibility” ’ ” of proof. Mayberry v. Dees, 663 F.2d 502, 510 (4th Cir.1981) (quoting Ralston Purina Co. v. Edmunds, 241 F.2d 164, 168 (4th Cir.), cert. denied, 353 U.S. 974, 77 S.Ct. 1059, 1 L.Ed.2d 1136 (1957)). The court is required to grant a directed verdict (or a JNOV) even if there is some evidence supporting the opposite position so long as “ ‘there are no controverted issues of fact upon which reasonable minds could differ.’ ” Kim v. Coppin State College, 662 F.2d 1055, 1059 (4th Cir.1981) (quoting Proctor & Colonial Refrigerated Transportation, Inc, 494 F.2d 89, 93 (4th Cir. 1974)).

That the district court understood and applied the proper legal standard is made apparent from the following portion of its ultimate ruling:

The record shows a mere possibility that Clark terminated him [Whalen] in 1979 in retaliation for exercising his first amendment rights in 1976.

(emphasis added). (JA 514).

The majority opinion, in the main, faithfully discusses the events which transpired between 1976, when Whalen first appeared before the Corporation Commission, and June 19, 1979, when the firing about which we are concerned took place. For that reason, it would serve no purpose for me to repeat them here. I do, however, think that insufficient emphasis was given to the fact that three and one-half years elapsed between Whalen’s speech and his discharge, and that Whalen had no dealings with the Corporation Commission after 1977, when he made his second and last appearance as a witness before that body.

If we had nothing except Whalen’s two public appearances as a witness, the abortive discharge the day following the initial appearance, Clark’s admission that he was contacted by a power company employee about Whalen’s activities,1 Whalen’s failure to receive some merit raises despite satisfactory and above average job performance ratings, followed by the June 19, 1979 termination, these bare facts might have risen to the level of “probability” required under Mayberry, although to say so would require, I believe, that Clark possess a memory that even an elephant would envy and a dogged spirit that would do credit to Victor Hugo’s indefatigable detective, Javert.

But these facts, as the majority admits, are by no means all that we have. We have, as previously noted, an employee who received the two highest job performance ratings over a three and one-half year period while his supposedly vindictive superior was alleged to be “out to get him.” We also have a lengthy confrontation between Whalen and his employer resulting from Whalen’s unilateral decision to establish himself as a real estate agent. This new career began in January 1978 and triggered a running controversy that continued unabated until his discharge eighteen months later.2 Although Whalen initially *228implied that his ambitions would be limited to Floyd County, he soon established a working relationship with Rudy Cox, a Roanoke County real estate agent, who was heavily involved in the development of subdivisions.

Not surprisingly, considering that Whalen, as a civil engineer, was employed by Roanoke County to review subdivision developments, this association with Cox produced complaints by competing realtors to the press, to Clark, and to the Board of Supervisors of Roanoke County, charges of misuse of county vehicles and county time by Whalen, monthly objections by subdivision developers concerning Whalen’s recommendations and decisions, and a not unexpected adverse reaction from Clark when Whalen’s name appeared in a publication of the Roanoke Valley Realtors as an agent of Rudy Cox. Finally, after Whalen was involved in a questionable decision to reduce a subdivision bond favorable to Rudy Cox, Whalen was discharged.

Whalen, in his own testimony, recognized that there were problems as a result of his dual role. He stated that the firing overturned by the grievance panel was for “a conflict of interest” (JA 170), or a possibility of a conflict of interest stemming from a county engineer having a real estate license. He conceded that he could understand how people might misconstrue his relationship with developers because of the “possibility of [his] granting subdivision approval and turning around and selling subdivided lots.” (JA 191).3

In addition to being sensitive to the way his actions might be perceived, Whalen went further and confessed that his relationship with Clark deteriorated due to his real estate activities when he said: “The straw that broke the camel’s back in our relationship was a letter that Mr. Clark had received showing my name on a multiple listing page of the Roanoke Valley Realtors.” (JA 148). At trial, when queried about why he was fired in March of 1979, Whalen said, “No, I could not see any reason other than the first case against me with Rudy Cox.” (JA 435).

In addition to the overwhelming evidence of the problems produced by Whalen’s real estate activities, I am also influenced by the absence of any proof that Clark ever discussed Whalen’s Corporation Commission appearance after 1976, or that Appalachian Power Company either conspired with Clark or exerted any pressure upon *229him. In sum, I agree with the district court that there was no more than a mere remote possibility that Whalen’s 1979 discharge resulted from Whalen’s 1976 speech, and that JNOV was therefore proper.

Furthermore, even if Whalen’s 1976 exercise of free speech was a “substantial” or “motivating” factor in the 1979 discharge, Whalen is still not entitled to prevail. Taking a discharge motivated by an exercise of first amendment rights as a given, the court must then determine whether the employer has shown that the discharge would have occurred regardless of the protected conduct. Jones v. Dodson, 727 F.2d 1329, 1335 (4th Cir.1984); Neal v. Howell, 689 F.2d 473, 476 (4th Cir.1982). In this regard I also agree with the district court’s conclusion:

The reasons given for plaintiff’s [Whalen’s] discharge were totally unrelated to his testimony against APCO’s planned construction and that plaintiff failed to show the bond reduction issue was a mere sham or subterfuge.

(JA 514). Hence, I am convinced, as was the district court, that the 1979 “discharge would have been made in any event for reasons unrelated to any exercise of protected first amendment rights.” Jones, 727 F.2d at 1335 (citing Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Therefore, the grant of JNOV was appropriate regardless of the ability of Whalen to make out a prima facie case of retaliatory discharge in violation of his first amendment rights.

II.

If, however, the majority is correct in holding that the district court erred in granting Clark’s JNOV motion, then I am convinced that under the facts of this case the order denying a new trial should be. vacated and the matter should be remanded to the district court so that the new trial motion can be reconsidered under the proper standard. Therefore, I concur in Part III of the majority opinion.

. A number of meetings involving Clark. Wbalen and other employees of Roanoke County were held in an effort to resolve these problems. Whalen recalls a June 1978 gathering at which Clark first denied Whalen permission to sell or to have a real estate license and then modified his limitation to prohibit sales in Roanoke *228County. According to Whalen, a compromise was finally reached forbidding the sale by Whalen of subdivided lots or houses in Roanoke County. (JA 150). In late October or November 1978, there was another similar discussion after Clark saw a listing by Rudy Cox Realtors showing Whalen as one of Cox’s agents. After these meetings, Clark wrote a letter to Whalen dated January 30, 1979, in which Clark recounted some of the history of the case and then stated in part:

We understood that you made the clear and unequivocal commitment that you would engage in no real estate activities in Roanoke County...
Now it is brought to my attention that you are in some manner involved in a disagreement with other Roanoke County real estate agents over commissions or other fees related to a sales transaction on property in Roanoke County. I believe it necessary to ask you to promptly decide if you wish to pursue a career in real estate or continue employment with Roanoke County.
Your job clearly places you in a position requiring the utmost in public confidence and trust. Working with developers and property owners your decisions in regard to review and approval of plans can expedite or hinder their progress and thus their livelihood. The County government must not be placed in a position of employing or retaining an employee whose personal affairs present any suspicion that preferential treatment is given to some persons. If you in any way deal in real estate in Roanoke County this cannot help but create feelings of unfair advantage from other persons also engaged in this same field who must come to you for approval of their proposals.
Please consider this matter seriously and promptly in order that we can reach a mutually agreeable conclusion.

(emphasis added) (JA 443-4).

Below the signature of Clark there appears the entry "I concur with the above," followed by Whalen’s signature. (JA 444). In his testimony, Whalen admits that he signed this letter. (JA 192-93).

. At least one of the tracts sold by Whalen in Roanoke County was suitable for a subdivision. (JA 429).