Thomas H. Roberts & Associates, P.C.
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Victory in 4th Circuit Court of Appeals


  The law firm of Thomas H. Roberts & Associates, P.C. announced an important victory.  In an unpublished opinion, the Fourth Circuit Court of Appeals ruled that there the defense of qualified immunity is not available to the government in Title VII cases.  This fact is especially important when individuals are being sued for violation of related First Amendment rights when government officials punish or retaliate against individuals who oppose unlawful employment practices in violation of Title VII.





CARL R. PEED, Sheriff of Fairfax
County Virginia, in his individual
and official capacity,
                                                                                                 No. 00-1071
County of Fairfax, Virginia; JAMES
A. VICKERY, Chief Deputy Sheriff,
The Sheriff's Department for the
County of Fairfax, Virginia, in his
individual and official capacity;
LARRY GERBER, Captain of
Confinement, The Sheriff's
Department for the County of
Fairfax, Virginia, in his individual
and official capacity,

CARL R. PEED, Sheriff of Fairfax
County Virginia, in his individual
and official capacity; JAMES A.
VICKERY, Chief Deputy Sheriff, The
Sheriff's Department for the County
of Fairfax, Virginia, in his
individual and official capacity;                                                       No. 00-1194
LARRY GERBER, Captain of
Confinement, The Sheriff's
Department for the County of
Fairfax, Virginia, in his individual
and official capacity,
County of Fairfax, Virginia,

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.

Argued: December 4, 2000
Decided: August 24, 2001

Before WIDENER and MOTZ, Circuit Judges, and
Robert E. PAYNE, United States District Judge for the
Eastern District of Virginia, sitting by designation.



No. 00-1071 affirmed and No. 00-1194 dismissed by unpublished per
curiam opinion.



ARGUED: John J. Brandt, James R. Parrish, BRANDT, JENNINGS,
ROBERTS, DAVIS & SNEE, P.L.L.C., Falls Church, Virginia, for
Appellant. Tim Schulte, Thomas Hunt Roberts, THOMAS H. ROBERTS
., Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).



This appeal and cross-appeal concern claims of employment discrimination

in violation of 42 U.S.C. 1981 (1994), hostile work

environment in violation of 42 U.S.C. 2000e(b) (1994), and retaliation

in violation of 42 U.S.C. 1983 (1994) and 2000e-3 (1994).

African-American Fairfax County deputy sheriffs Robert Cutts, Jabar

Shabazz, and Gwendolyn Bell sue Sheriff Carl R. Peed in his individual

and official capacity on all counts; they join as defendants in the

employment discrimination claim two other officials in the Sheriff's

office. The district court granted Sheriff Peed summary judgment on

all retaliation claims, except Cutts's and Shabazz's claims of retaliatory

discharge. The court also granted summary judgment to all

defendants on all employment discrimination and hostile work environment

claims. Sheriff Peed now appeals and the deputies crossappeal.

We affirm the denial of summary judgment appealed by Sheriff

Peed and dismiss the cross-appeal.1


1 Because the district court set forth the underlying facts in detail, we

need only refer to them as necessary in the legal discussion that follows.



We first address the retaliation claims. The deputies have alleged

two categories of retaliation claims. We consider each in turn.


In Counts IV through VI, the deputies state claims under 1983

alleging that the Sheriff violated the First Amendment by firing them

for legitimate speech on a matter of public concern. In assessing

whether the Sheriff is, as he maintains, entitled to qualified immunity,

we must first determine whether the deputies have alleged a violation

of constitutional rights. For a public employee to state a claim for

retaliation under the First Amendment (1) the employee must speak

as a citizen on a matter of public concern, (2) the employee's interest

in speaking on the matter must outweigh the government's interest in

providing effective and efficient services to the public, (3) the

employee must be "adversely affected" by the alleged retaliation in a

manner that "tend[ed] to chill his . . . First Amendment rights" and

(4) the speech must be a "substantial factor in the decision to take the

allegedly [adverse] retaliatory action." Goldstein v. Chestnut Ridge

Volunteer Fire Co., 218 F.3d 337, 351-52 (4th Cir. 2000).

Ascertaining whether a matter is of public concern requires examination

of the "content, form, and context" of the statement. Connick

v. Myers, 461 U.S. 138, 147-48 (1983); Goldstein, 218 F.3d at 352.

Although internal employment matters are not matters of public concern,

see Goldstein, 218 F.3d at 352, statements to the public, like

those at issue here, involving purported fraud and racial discrimination

in a law enforcement agency, indisputably do constitute matters

of public concern. See id. at 353 (statements regarding public safety

are "quintessential matters of public concern"); Robinson v. Balog,

160 F.3d 183, 188 (4th Cir. 1998) (speech seeking to bring to light

"actual or potential wrongdoing or breach of public trust" is speech

on a matter of public concern); Cromer v. Brown , 88 F.3d 1315, 1326

(4th Cir. 1996) (allegations of racial discrimination within law

enforcement agency are matters of "serious public import").2


2 Sheriff Peed incorrectly characterizes the issue as whether the deputies

had a First Amendment right to "make knowingly false or reckless


Because the deputies' speech involves a matter of public concern,

we turn to the question of whether their interest in making those statements

outweighed Sheriff Peed's interest in managing the internal

affairs of his office. The Sheriff contends that the undisputed facts

demonstrate that he was justified in taking all of the challenged

actions -- including discharging Cutts and Shabazz-- to protect his

office's efficiency from the disruption caused by the deputies' complaints.

Undoubtedly, charges of racial discrimination may impinge

upon the harmony among co-workers or interfere with the operation

of a sheriff's office. The record here, however, provides little evidence

that this actually occurred, or that the racially charged environment

in the sheriff's office stemmed from these employees' remarks

rather than other people or events.

An employer wishing to defend against specific allegations of

impermissible retaliation must present evidence that the speech triggering

his actions actually interfered with the functioning of his

office, and may not merely assert a "generalized and unsubstantiated"

interest against disruptions. Goldstein, 218 F.3d at 356; Robinson,

160 F.3d at 189. The Sheriff has put forth only speculative and unsubstantiated

charges of office disruption. Moreover, the government's

interest in efficiency generally bears more weight than an employee's

interest in commenting on matters of public concern only when the

employee-speaker is an agency-head or is in a policy making position.

See McVey v. Stacy, 157 F.3d 271, 278-79 (4th Cir. 1998). The deputies

were low ranking law enforcement officers without policy making

authority. Accordingly, at this juncture, the deputies have alleged

sufficient facts to satisfy the second prong of a retaliation claim.

As to the third and fourth prongs, that the speech was a substantial

factor resulting in an adverse action tending to chill First Amendment

rights, we agree with the district court that the discharges of Cutts and

Shabazz are the only truly adverse actions giving rise to retaliation


statements about racial issues." In determining whether a right is clearly

established for the purposes of qualified immunity"a court examines the

facts alleged by the plaintiff, not those asserted by the defendant."

Buonocore v. Harris, 65 F.3d 347, 357 (4th Cir. 1995). "[D]efendants

cannot demonstrate that . . . allegations do not state a violation of clearly

established law simply by substituting their own version of the facts." Id.


claims. To constitute actionable retaliation, conduct must adversely

impact First Amendment rights. See Suarez Corp. Indus. v. McGraw,

202 F.3d 676, 685 (4th Cir. 2000). De minimis actions do not constitute

adverse action for purposes of a First Amendment retaliation

claim. Id. at 686.

We must next determine whether the Sheriff is nonetheless entitled

to qualified immunity on the retaliatory discharge claims. He is not

entitled to such immunity if (1) the violation of the deputies' constitutionally

protected rights was clearly established at the time of the

challenged acts and (2) a reasonable official would have understood

that his conduct violated that clearly established law. See Henderson

v. Simms, 223 F.3d 267, 271 (4th Cir. 2000). In this case, the law was

clearly established; Connick and its balancing test were the law long

before 1998 when the challenged conduct took place. Moreover, we

agree with the district court that, if the deputies are able to prove their

allegations, this is the rare case in which a reasonable official in the

Sheriff's position would have understood that such conduct violated

clearly established law. Accordingly, we affirm the district court's

refusal to grant Sheriff Peed summary judgment on qualified immunity

grounds on Cutts's and Shabazz's retaliatory discharge claims

alleged in Counts IV through VI of their complaint. Likewise, we

affirm the grant of summary judgment on qualified immunity grounds

on their other retaliation claims and on all retaliation claims asserted

by Bell, who was never discharged.


In Count III, the deputies alleged that, by retaliating against them

for protected activity, the Sheriff also violated Title VII. Although

this claim is similar to the 1983 claims, contrary to the parties'

apparent belief, the Sheriff is entitled to qualified immunity only with

respect to the claims brought under 1983; there is no qualified

immunity from liability under Title VII. See, e.g., Genas v. New York

Dep't of Correctional Servs., 75 F.3d 825, 829 n.3 (2d Cir. 1996);

Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991); Harvey

v. Blake, 913 F.2d 226, 228 (5th Cir. 1990). Thus, summary judgment

on the basis of qualified immunity would be improper as to the Title

VII claim set forth in Count III. Accordingly, we affirm the district


court's refusal to grant qualified immunity on this claim, albeit for

different reasons than those relied on by the district court.


We next address the deputies' cross-appeal in which they contend

that the district court erred in granting summary judgment on their

employment discrimination claims (Court I) and hostile environment

claims (Count II). We refuse to exercise disfavored pendent appellate

jurisdiction to consider the cross-appeal; we note that the issues

involved in the cross-appeal are not "inextricably intertwined" with

the appealable order. Swint v. Chambers County Comm'n, 514 U.S.

35, 51 (1995); see also Armijo v. Wagon Mound Public Schs., 159

F.3d 1253, 1265 (10th Cir. 1998) (refusing to exercise pendent appellate

jurisdiction to consider cross-appeal in case in which proper interlocutory

appeal on qualified immunity is before the court); Erickson

v. Holloway, 77 F.3d 1078, 1081 (8th Cir. 1996) (same); Woods v.

Smith, 60 F.3d 1161, 1167 (5th Cir. 1995) (same). We therefore dismiss

the cross-appeal.


In sum, we affirm the district court's judgment denying qualified

immunity to Sheriff Peed on Cutts's and Shabazz's retaliation claims

under 1983, which are set forth in Counts IV through VI of the

complaint, and on the retaliation claim under Title VII, which is set

forth in Count III. We dismiss the deputies' cross-appeal as to the district

court's judgment on Counts I and II.

No. 00-1071 - AFFIRMED

No. 00-1194 - DISMISSED