Duane Minnick v. County of Currituck , 521 F. App'x 255 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1747
DUANE MINNICK,
Plaintiff – Appellant,
v.
COUNTY OF CURRITUCK; KNOTT’S ISLAND VOLUNTEER FIRE
DEPARTMENT; CRAWFORD TOWNSHIP VOLUNTEER FIRE DEPARTMENT,
INC.; DAVID F. SCANLON, II, named in his individual and
representative capacities; MICHAEL CARTER, named in his
individual and representative capacities; TERRY KING, named
in his individual and representative capacities; JERIT VAN
AUKER, named in his individual and representative
capacities; CHRIS DAILEY, named in his individual and
representative capacities,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W.
Boyle, District Judge. (2:10-cv-00017-BO)
Argued: March 21, 2013 Decided: May 29, 2013
Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Megan Kathleen Mechak, WOODLEY & MCGILLIVARY,
Washington, D.C., for Appellant. Paul H. Derrick, CRANFILL,
SUMNER & HARTZOG, LLP, Raleigh, North Carolina; Jacqueline Terry
Hughes, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Raleigh, North
Carolina; Jeffrey Allen Doyle, HEDRICK, GARDNER, KINCHELOE &
GAROFALO, LLP, Raleigh, North Carolina, for Appellees. ON
BRIEF: Thomas A. Woodley, WOODLEY & MCGILLIVARY, Washington,
D.C., for Appellant. Katie W. Hartzog, CRANFILL, SUMNER &
HARTZOG, LLP, Raleigh, North Carolina, for Appellees Crawford
Township Volunteer Fire Department, Inc., and Chris Dailey;
Theresa Sprain, Kristen Riggs, WOMBLE CARLYLE SANDRIDGE & RICE,
PLLC, Raleigh, North Carolina, for Appellees County of
Currituck, David F. Scanlon, II, and Michael Carter.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Duane Minnick appeals from the district court’s award of
summary judgment to the defendants in this 42 U.S.C. § 1983proceeding in the Eastern District of North Carolina. Minnick,
a former firefighter and emergency medical technician (“EMT”) in
Currituck County, initiated this action against the County, the
Knott’s Island Volunteer Fire Department, the Crawford Township
Volunteer Fire Department, plus five officials connected to one
or more of those entities: Daniel Scanlon, Michael Carter,
Terry King, Jerit Van Auker, and Chris Dailey, sued in their
individual and representative capacities. 1 Minnick alleged,
inter alia, that his constitutional rights to free speech and
free association were contravened by employment actions taken
against him, including burdensome transfers and termination of
his employment.
In entering its judgment on behalf of the defendants, the
district court explained that they did not have policymaking
authority in the County and could not be held responsible for
Minnick’s transfers or termination. Minnick v. Currituck Cnty.,
1
Daniel Scanlon is incorrectly named “David F. Scanlon” in
the docket of the district court.
3
No. 2:10-cv-00017 (E.D.N.C. May 14, 2012) (the “Opinion”). 2 We
affirm because, on a more fundamental level, Minnick has failed
to create a genuine issue of material fact permitting a jury to
conclude that the defendants violated his First Amendment rights
in any respect.
I.
A.
Minnick filed this lawsuit on May 7, 2010. His two-count
Second Amended Complaint — the operative complaint — alleges,
inter alia, that the defendants “engaged in adverse actions,
omissions and decisions, including threatening, coercing,
intimidating, and harassing” Minnick, by subjecting him to a
hostile work environment, reprimanding and transferring him from
one fire station to another, and terminating his employment as a
professional firefighter because of his involvement in an
organized labor union (the “free association claim”), and his
insistence on speaking out regarding matters of public concern
(the “free speech claim”). Complaint ¶¶ 69, 78. 3 The Complaint
specifies that the defendants thereby abridged Minnick’s First
2
The Opinion is found at J.A. 2887-94. (Citations herein
to “J.A. ____” refer to the contents of the Joint Appendix filed
by the parties in this appeal.)
3
The Complaint is found at J.A. 127-52.
4
Amendment rights; that the bases propounded by the defendants
for their actions were pretextual; and that they caused Minnick
“to suffer humiliation and harm to his reputation, emotional and
mental injuries, pain and suffering, financial and other adverse
consequences.” Id. ¶¶ 78-80. Minnick requests a court
declaration that the defendants’ actions toward him violated his
First Amendment rights, and he seeks injunctive relief and
damages.
B.
Currituck County, adjoining the Atlantic Ocean in the
northeast corner of North Carolina, encompasses an extensive
coastal area incorporating the mainland and several island
communities. Because of its size and geographic limitations,
the County avails itself of both professional and volunteer
firefighters for fire and emergency first responder protection.
Knott’s Island and Crawford Township are two of six non-profit
entities organized to provide fire protection and EMT services
to the County. The six fire departments, commonly called
stations, invite applications from volunteer firefighters and
all volunteers accepted become members of a station.
Each station is governed by a Board of Directors comprised
of a President (who serves as Board Chair), plus a Vice
President, Secretary, Treasurer, and three at-large members.
The Board appoints the station’s Fire Chief. The Fire Chief is
5
in charge of the station, establishes its rules, and has the
power to discipline and suspend its members, as described in the
station’s articles of incorporation. See J.A. 385-92.
As a matter of practice, the County enters into a
contractual relationship with each station. Pursuant to
contract, a station provides personnel and equipment for fire
protection and EMT services in exchange for payments from the
County. The contract requires the stations to also use and
house certain paid employees of the Currituck County Fire and
Emergency Medical Services Department (the “County Emergency
Department”). As a result, each of the six stations is staffed
with a mix of volunteer firefighters and paid employees serving
as firefighters and EMTs. The volunteers and paid employees
interact and work together while on duty and in responding to
emergency calls. The professionals at the various stations are
under the direction of Scanlon (the County Manager) and Carter
(the Chief of the County Emergency Department) as well as
various supervisors and captains at each station. See, e.g,
Crawford Township Contract, J.A. 395-401.
The Fire Chiefs of the various stations do not possess
supervisory control over professional employees of the County
Emergency Department. Thus, the Fire Chiefs are not permitted
to transfer, discipline, or terminate a professional employee.
The contracts between the stations and the County provide that,
6
as a courtesy, the County Emergency Department will consult with
the appropriate Chief prior to any permanent move, transfer, or
reassignment of the County’s professional personnel.
C.
The facts relevant to this appeal are drawn from a full
record made after discovery proceedings conducted in the
district court. We recite the facts in the light most favorable
to Minnick, as the nonmoving party. See Laing v. Fed. Express
Corp., 703 F.3d 713, 714 (4th Cir. 2013).
1.
Minnick was employed as a paid firefighter and EMT by the
County Emergency Department for more than two years, from April
9, 2007, until August 11, 2009. He was first assigned to Lower
Currituck Station, also known as Waterlily Station. Minnick’s
initial six-month performance review, dated October 2, 2007,
reveals positive evaluations — either “Highly Commendable” (the
second highest of five evaluation levels), or “Proficient and
Fully Competent” (the middle evaluation). There were
observations made on his initial review, however, of “some small
issues with [volunteer] Fire Department members,” written in the
comment space on the evaluation form under the category
“Cooperation and Teamwork.” J.A. 803.
7
2.
a.
In October 2007, Minnick was transferred from Waterlily
Station to Crawford Township. Minnick requested the transfer
because “[t]he Crawford station was much . . . busier, ran more
calls [than Waterlily Station], and [he] wanted to get out and
run more calls.” J.A. 1096. About this same time, in late
2007, Minnick initiated an effort to organize a chapter of the
International Association of Fire Fighters (“IAFF”) for the
County’s EMTs and firefighters. County Emergency Department
Chief Carter, a former IAFF member himself, initially expressed
some hesitancy about a labor union, believing it would cause
tension between the paid County employees and the volunteers at
the various stations, but he subsequently assisted Minnick with
the union activities. See id. at 2152, 2154.
An issue involving Minnick’s conduct at Crawford Township
was documented in a personnel incident report on January 22,
2008. See J.A. 371. Captains Cheryl King and Bruce Miller
reported that, on January 18, 2008, Minnick telephoned King at
about 8:30 p.m. to tell her that he was not feeling well and
wished to depart the station. While King was seeking a relief
worker to cover the shift, Minnick phoned again to inform King
that he was already on his way home. According to the incident
report, Minnick violated established County Emergency Department
8
policy prohibiting employees from departing their positions
unless properly relieved, or instructed to leave by a captain.
The report related that there had been other questionable
incidents regarding Minnick abusing his sick leave. See id.That same evening, shortly before leaving the station,
Minnick sent an email to his former Chief at Waterlily Station,
accusing him of neglecting his duties. See J.A. 369. As a
result, Minnick was the subject of another Crawford Township
personnel incident report on February 7, 2008. Minnick
thereafter agreed that it was wrong for him to send the email
while on duty, and he apologized to the Waterlily Chief and
other affected persons. See id. at 1037-38. This incident
report specifies that it constituted a written warning to
Minnick. See id. at 370.
One week before the second incident report, on January 31,
2008, Minnick had successfully organized a local affiliate of
the IAFF, named the Currituck County Professional Fire Fighters
and EMS Local 4633 (“Local 4633”). Local 4633 included County
Emergency Department paid firefighters and EMTs, and its
membership elected Minnick as President. During Minnick’s
employment with the County Emergency Department and his tenure
as President of Local 4633, he spoke out concerning safety
issues and unsafe practices that he observed at the various
stations. While at Crawford Township, Minnick alerted Captain
9
Miller and the station Chief, Chris Dailey, to several safety
issues. Specifically, Minnick expressed concerns about an out-
of-date airpack on one of the fire trucks, malfunctioning
seatbelts on another truck, and balding tires on an ambulance.
Chief Dailey once told Minnick to “quit pestering him” about
fire department problems, and Minnick asserts that he was
informed by someone else that such issues were “not a union
concern.” J.A. 1108-09, 2185.
b.
After his transfer to Crawford Township, Minnick had
personality conflicts with several of the volunteer firefighters
there, with the volunteers reporting that Minnick talked down to
them and called them derogatory names. These conflicts were
reflected in Minnick’s one-year performance review of April 19,
2008, where he was afforded less positive remarks than those in
his initial evaluation. Minnick received evaluations of “Needs
Development” in the areas of “Cooperation and Teamwork” and
“Communication and Interpersonal Skills,” and the report related
that Minnick had issues with volunteer firefighters, “[u]sually
due to confrontations with members or officers.” J.A. 811. The
10
evaluation also specified personality conflicts between Minnick
and volunteer members and officers. 4
c.
On June 1, 2008, at the scene of a motor vehicle accident,
Minnick and a co-worker, volunteer firefighter Christopher Pope,
had a disagreement over Minnick’s authority to move the involved
vehicles. Their confrontation featured profane language and
various threats of bodily harm. Captain Miller witnessed the
altercation and submitted an incident report to County Emergency
Department Chief Carter, emphasizing that Pope was the
instigator and aggressor. Carter brought the incident to
Scanlon’s attention, as well as that of the County Attorney, in
order to assess the need for further action. Although no action
was taken against Pope because he was a volunteer, Carter
requested that Chief Dailey address the incident with Pope and
hold him accountable for his actions. Pope received a verbal
warning, and Minnick was not disciplined.
3.
After the incident with Pope, Minnick and his partner, Josh
Nowicki, requested transfers from Crawford Township to Moyock
4
At one point, his supervisors agreed to allow Minnick to
transfer from Crawford Township, but he declined such a
transfer, advising that he preferred to stay and try to work out
his differences with the other Crawford Township personnel.
11
Station. They did not receive their first transfer choice,
however, but were transferred to Corolla Station. Minnick
believed the denial of his first-choice transfer was because
Carter did not want to have union officials at Moyock.
According to Minnick, this was the first instance of
discrimination against him for his union activities. See J.A.
1198, 2186. Minnick worked at Corolla for about six months,
from June to December 2008. The two-hour commute from his home
to Corolla was unduly burdensome, however, and Minnick secured a
transfer from Corolla to Knott’s Island.
4.
a.
Not long after his Knott’s Island transfer, Minnick began
having problems with the volunteers there. In one instance,
Minnick was yelled at by Terry King, the President at Knott’s
Island, for moving furniture. Minnick had moved a desk in the
common area at the station because the internet cable would not
otherwise reach. King told Minnick “You think you can touch
anything because you’re the union president.” J.A. 433. On
another occasion, Minnick asked King for a key to the storage
building, and King responded that he did not want to talk to
Minnick. See id. at 434.
There were several complaints from volunteer firefighters
at Knott’s Island that Minnick was parking his personal vehicle
12
in a prohibited area. Barbara Hill, a member of the Knott’s
Island Board, confirmed that certain volunteer firefighters
would not come to the station when Minnick was working due to
personality conflicts with him. Although Minnick was informed
of the complaints against him, he was not disciplined for most
of them. Minnick’s behavior at Knott’s Island nonetheless
resulted in four significant disciplinary write-ups.
b.
On February 20, 2009, Minnick was the subject of a
personnel incident report completed by Captain Miller. The
report related that Minnick had violated County Emergency
Department policy when, without first seeking approval from his
supervisors, he arranged for a co-worker to cover his shift.
The incident report reflected that it was a verbal and written
disciplinary action. See J.A. 379. The incident resulted in a
thirty-day suspension of certain of Minnick’s privileges.
A second personnel incident report, dated July 11, 2009,
reflects that Minnick failed to show up for work as scheduled on
June 26, 2009. See J.A. 380. Also on July 11, Minnick received
a third personnel incident report documenting that, on June 11,
2009, he had arrived late for his scheduled shift by an hour and
fifteen minutes, out of uniform and not ready to work. See id.
at 381-82. This incident report reflects that it was a “[f]inal
written warning.” Id. at 381.
13
On August 10, 2009, Terry King lodged a written complaint
against Minnick. King’s letter alleged that since Minnick’s
assignment to Knott’s Island, he had ignored the rules and
disrespected the station’s members. King also described an
incident where Minnick parked his personal vehicle in front of
the station in a no-parking zone. Despite being advised to move
his car, Minnick refused. The vehicle apparently remained in
the no-parking zone for Minnick’s entire twenty-four-hour shift.
During Minnick’s next shift, lasting eighteen hours, he parked
the vehicle in the same area the entire time. King’s letter
contended that “[t]his behavior is typical of [Minnick’s]
rebellious attitude and the lack of respect he has displayed
toward the fire department.” J.A. 410. King also asserted that
Minnick had been confrontational with the volunteer
firefighters, and that certain members would not go to the
Knott’s Island station when Minnick was working there.
As a result of King’s complaint letter, Minnick’s final
personnel incident report at Knott’s Island, dated August 11,
2009, specified that Minnick was ignoring the station’s rules
and “presenting an attitude that is not conducive for harmony in
the station.” J.A. 383. This incident report recited that
Minnick had served at every station in the County save one, and
that, in most instances, the volunteer firefighters had
requested that he be transferred. The report, completed by
14
County Emergency Department Chief Carter, recommended that
Minnick be terminated from employment with the County Emergency
Department. As reflected in the report, Scanlon had approved
the termination recommendation.
5.
Minnick thereafter filed a grievance contesting his
discharge. A hearing was conducted on September 24, 2009, and,
on October 15, 2009, Scanlon reaffirmed Minnick’s termination of
employment “[b]ased on my review of [Minnick’s] personnel record
and the information elicited during my investigation.” J.A.
415. In his grievance ruling, Scanlon recited the details of
Minnick’s entire disciplinary record, explaining that, by his
own admissions, Minnick had “acknowledge[d] and recognize[d]
these prior disciplinary actions and accept[ed] ‘full
responsibility for those lapses.’” Id. Scanlon related that
Terry King’s complaint letter was “the final complaint preceding
termination.” Id. As Scanlon explained,
the basis of the progressive personnel actions taken
as noted in the Personnel Incident Reports is your
failure to follow policy and to report to your duty
station; not, as you assert, our association with the
IAFF Union. Therefore, the portion of Terry King’s
letter that is germane to this hearing is the claim of
your “blatant disregard of orders given.”
Id.15
D.
On May 14, 2012, the district court filed its Opinion
awarding summary judgment to the defendants. The court ruled
that, because Knott’s Island and Crawford Township did not have
supervisory control over Minnick, who was a County employee, and
because neither station had policymaking authority with respect
to Minnick’s union activities or speech, Knott’s Island and
Crawford Township could not be liable for Minnick’s transfers or
termination. See Opinion 5-6.
With respect to the County defendants — County Manager
Scanlon, County Emergency Department Chief Carter, and Currituck
County — the district court concluded that, under North Carolina
law, none of them could make personnel policies. That authority
resides instead, according to the court, solely with the
County’s Board of Commissioners. See Opinion 6-7. Inasmuch as
Minnick had never maintained that the Board of Commissioners was
aware of any alleged constitutional violations, and because the
Board had neither participated in nor condoned any of the
challenged actions, the court ruled that Minnick had “failed to
demonstrate the necessary involvement by the relevant final
policymaking authority and his claims must be dismissed.” Id.16
at 8. 5 Finally, the court granted summary judgment to each of
the individual defendants — King, Van Auker, and Dailey —
without further explaining its rulings. See id. at 8. Minnick
has timely noticed this appeal, and we possess jurisdiction
under 28 U.S.C. § 1291.
II.
We review de novo an award of summary judgment, “applying
the same legal standards as the district court.” Pueschel v.
Peters, 577 F.3d 558, 563 (4th Cir. 2009). We also review de
novo the district court’s “determination of whether an
individual exercises final policymaking authority in a
particular area.” Austin v. Paramount Parks, Inc., 195 F.3d
715, 729 (4th Cir. 1999). Summary judgment is appropriate if
“there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law,” based on the
“materials in the record.” Fed. R. Civ. P. 56(a), (c)(1)(A).
We are entitled to sustain a district court’s judgment on “any
ground apparent from the record.” CFA Inst. v. Inst. of
5
Because there is no genuine dispute of material fact
regarding whether the defendants contravened Minnick’s First
Amendment rights, we need not reach or address the district
court’s ruling that Minnick’s claims against the County and its
officials are legally flawed. We make no determinations in that
respect.
17
Chartered Fin. Analysts of India, 551 F.3d 285, 292 (4th Cir.
2009).
III.
Section 1983 of Title 42 provides judicial redress for
constitutional violations carried out under color of law. The
statute provides, in pertinent part, that
[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
. . . , subjects . . . any citizen . . . to the
deprivation of any rights . . . secured by the
Constitution and laws, shall be liable to the party
injured in an action at law.
42 U.S.C. § 1983.
In Goldstein v. Chestnut Ridge Volunteer Fire Co., relied
on by the parties, the plaintiff brought a § 1983 action,
alleging violations of his First Amendment rights. See 218 F.3d
337 (4th Cir. 2000). In resolving that case, we first had to
determine whether the defendant, a volunteer fire department,
was acting under color of state law, and if so, whether the
plaintiff could establish a violation of the First Amendment.
In Minnick’s case, however, an assessment of whether the
volunteer firefighter defendants were acting under color of
state law would be overindulgent. Put simply, viewing the facts
in the proper light, none of the defendants have violated any of
Minnick’s constitutional rights. By way of explanation, we
18
first discuss Minnick’s free speech claim, and then his free
association claim.
A.
The First Amendment provides, in pertinent part, that
“Congress shall make no law . . . abridging the freedom of
speech.” U.S. Const. amend. I. Although a public employee does
not have a constitutional right to his job, a public employer
“cannot condition public employment on a basis that infringes
the employee’s constitutionally protected interest in freedom of
expression.” Connick v. Myers, 461 U.S. 138, 142 (1983). To
determine whether an employment action violated a public
employee’s free speech rights, we consider: (1) whether the
public employee was speaking as a citizen, not as an employee,
on a matter of public concern; (2) whether the employee’s
interest in the expression at issue outweighed the employer’s
interest in providing effective and efficient services to the
public; and (3) whether there was a sufficient causal nexus
between the protected speech and an alleged adverse employment
action. See McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir.
1998). 6
6
The term “adverse employment action” is typically used in
Title VII cases, in the context of establishing a prima facie
case of discrimination. See Gerner v. Cnty. of Chesterfield,
674 F.3d 264, 266 (4th Cir. 2012) (explaining that, to establish
prima facie case, “plaintiff must show: (1) membership in a
(Continued)
19
Assuming that Minnick’s conduct and speech regarding the
safety of firefighting equipment fulfills the first two prongs
of the McVey test, he is yet unable to satisfy McVey’s third
prong, that is, causation, which requires proof of a sufficient
nexus between protected speech and an adverse employment action
by Minnick’s employer. See Huang v. Bd. of Governors, 902 F.2d
1134, 1141 (4th Cir. 1990) (dismissing First Amendment § 1983
claim for failure to show “but for” connection). Here, viewing
the facts in the light most favorable to Minnick, there is no
genuine issue as to whether he suffered an adverse employment
action as a result of his speech.
Notably, the complaints about Minnick’s behavior during his
employment with the County predate the first instance of his
speaking out about safety concerns. Although Minnick argues
that complaints about his behavior only began after he became
President of Local 4633 in January 2008, his October 2, 2007
evaluation at Waterlily Station reflects that he already had
“some small issues with [volunteer] Fire Department members.”
protected class; (2) satisfactory job performance; (3) adverse
employment action . . . ; and (4) that similarly-situated
employees outside the protected class received more favorable
treatment.” (emphasis added) (internal quotation marks
omitted)). We use the term in this case, however, to describe
those actions of the defendants asserted by Minnick to have
violated his First Amendment rights, including his transfers and
termination.
20
J.A. 803. According to Minnick’s own testimony, his protected
speech was not uttered until later, while he was assigned to
Crawford Township between late October 2007 and June 2008.
During that period, Minnick addressed with both his county
supervisors and Chief Dailey at least three issues — an out-of-
date air pack, malfunctioning seatbelts, and balding tires. 7
While at Crawford Township and Knott’s Island, Minnick received
several personnel incident reports, documenting violations of
established policies. Although Minnick suggests that he was
punished more harshly than necessary as a result, his only
7
On appeal, Minnick maintains that he “rais[ed] important
safety issues” while at Waterlily Station, but the evidence does
not support this assertion. Br. of Appellant 8. Minnick’s
deposition concerning his time at Waterlily Station reveals only
that he expressed dismay that he was not certified to drive the
fire truck. Minnick also complained about a speeding fire
truck, but he was unsure whether he was working at Waterlily
Station or Crawford Township at the time. Minnick admitted that
he had no other issues during his tenure at Waterlily Station.
See J.A. 1096-97.
In his appellate brief, Minnick seeks to tie his October
2007 transfer from Waterlily Station to Crawford Township to
punishment for speech about unsafe practices at Waterlily
Station. Minnick’s deposition testimony, however, reveals that
he actually requested the transfer:
Q: What was the reason you transferred over to
Crawford [station]?
A: The Waterlily station wasn’t very busy. The
Crawford station was much more busier, ran more calls,
and I wanted to get out and run more calls.
J.A. 1096.
21
specific assertions of retaliatory or discriminatory adverse
employment actions are (1) his transfer from Crawford Township
to Corolla in June 2008, and (2) the August 2009 termination of
his employment with the County.
The first of those actions, Minnick’s transfer to Corolla,
followed his altercation with volunteer Pope. Minnick maintains
that this transfer was punitive, but he points to no evidence
supporting that proposition. Rather, the evidence is that,
after the Pope altercation, Minnick requested a transfer to
Moyock Station, which was denied by Chief Carter. He was
instead transferred to Corolla. Minnick maintained that Corolla
was not his first choice for a transfer, and that he felt that
he was being punished and discriminated against by Carter. See
J.A. 1199. Minnick also asserted, however, that he was
“excited” about the Corolla transfer and felt that “the move to
Corolla was for the best.” Id. In sum, the Corolla transfer is
Minnick’s first suggestion of a retaliatory or discriminatory
employment action, and its purportedly adverse nature is refuted
by Minnick’s own testimony.
Minnick’s termination by the County, assuredly an adverse
employment action, occurred after he had been transferred to
Knott’s Island — again at his own request. The termination
followed four discrete incident reports and disciplinary actions
against Minnick at Knott’s Island for violations of station and
22
County policy. Notably, the final decision to terminate Minnick
was recommended by Chief Carter and accepted by Manager Scanlon,
who explained that it was brought about by Minnick’s repeated
infractions and numerous complaints about his attitude toward
volunteer firefighters.
In sum, the two adverse employment actions Minnick seeks to
connect with his free speech claim are not linked by any
evidence to his expressions on safety concerns beyond the
unremarkable coincidence that Minnick happened to speak at the
same time he was violating settled policy. As we explained in
Goldstein, to satisfy the third McVey prong, “the protected
speech [must be] a substantial factor in the decision to take
the allegedly retaliatory action.” 218 F.3d at 352 (internal
quotation marks omitted). Minnick has not pointed to any
evidence that his circumscribed discussions of safety concerns
could have been a substantial factor in either his transfer to
Corolla Station or his termination from employment by the
County.
B.
Our disposition of Minnick’s free association claim is
closely related to our rejection of his free speech claim. Both
claims arise under the First Amendment, and “[t]he freedom to
associate guaranteed by the First Amendment protects
associational interests related to speech.” Thompson v. Ashe,
23
250 F.3d 399, 406 n.1 (6th Cir. 2001). We have recognized that
“[t]he right to associate in order to express one’s views is
‘inseparable’ from the right to speak freely.” Cromer v. Brown,
88 F.3d 1315, 1331 (4th Cir. 1996) (quoting Thomas v. Collins,
323 U.S. 516, 530 (1945)).
Importantly, Minnick’s free association claim is predicated
on the very facts underlying his free speech claim, in that
Minnick contends that his speech regarding safety concerns was
made in his capacity as President of Local 4633. As with his
free speech claim, however, Minnick is also unable to show
causation with respect to his free association claim. The
evidence demonstrates that there was tension between paid
employees and volunteers. Even if this tension was the result
of the paid employees’ participation in Local 4633, however, the
suggestion of isolated hostility toward the union has not been
revealed as plausibly being the motivation for Minnick’s
transfer denial or termination.
In short, Minnick has failed to show that either of the
asserted adverse employment actions emanated from any anti-union
sentiments on the part of the defendants. Moreover, Minnick was
24
not aware of any county policies — and there were none —
against union activities or union support. See, e.g., J.A. 345. 8
Our analysis of the evidence leads to the inescapable
conclusion that Minnick’s discipline and termination from
employment were the result of undisputed and repeated policy
violations, several of which would have warranted termination,
and none are shown to be related to union animus. The only
suggestion that Minnick’s union activities were the bases for
any employment actions comes from Minnick’s own conjecture. See
Stein Seal Co. v. NLRB, 605 F.2d 703, 709 (3d Cir. 1979)
(determining that employee’s discharge was the result of his
provocative conduct and persistent demands, not his union
activism, and explaining that “[t]he fact that one has been a
union activist does not grant him immunity for that type of
insubordination which would not be tolerated from others”).
Without more, Minnick’s conjecture that adverse employment
actions were retaliatory or discriminatory is not sufficient to
withstand summary judgment. See Adams v. Trs. of the Univ. of
N.C. - Wilmington, 640 F.3d 550, 560 (4th Cir. 2011)
(recognizing that plaintiff’s “own assertions of discrimination
8
Scanlon gave several examples of other employees of the
County Emergency Department who were terminated for failure to
adhere to protocol, so there is no evidence of any disparate
treatment of non-union employees. See J.A. 1712-13.
25
[are] insufficient to counter substantial evidence of legitimate
nondiscriminatory reasons for an adverse employment action”
(internal quotation marks omitted)).
IV.
Put succinctly, Minnick is unable to demonstrate causation
with respect to either of his First Amendment claims, and the
district court did not err. Accordingly, the judgment of the
district court is affirmed.
AFFIRMED
26