James Brooks v. Howard Arthur, Sr. , 685 F.3d 367 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES BROOKS; DONALD HAMLETTE, 
Plaintiffs-Appellants,
and
SAMUEL ST. JOHN,
Plaintiff,
v.
 No. 11-1899
HOWARD R. ARTHUR, SR., in his
individual capacity,
Defendant-Appellee,
and
RANDAL W. MITCHELL,
Defendant.

Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
Norman K. Moon, Senior District Judge.
(6:08-cv-00028-NKM)
Argued: May 18, 2012
Decided: July 9, 2012
Before WILKINSON, NIEMEYER, and KING,
Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Niemeyer and Judge King joined.
2 BROOKS v. ARTHUR
COUNSEL
ARGUED: Richard F. Hawkins, III, HAWKINS LAW
FIRM, PC, Richmond, Virginia, for Appellants. Sydney
Edmund Rab, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF:
Kenneth T. Cuccinelli, II, Attorney General, Wesley G. Rus-
sell, Jr., Deputy Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellee.
OPINION
WILKINSON, Circuit Judge:
Plaintiffs James Brooks and Donald Hamlette, corrections
officers at the Correctional Unit in Rustburg, Virginia, sued
under 42 U.S.C. § 1983, alleging that the defendants unlaw-
fully fired them for exercising their First Amendment rights
to free speech. The Supreme Court has been quite clear, how-
ever, that "‘complaints about . . . the employee’s own duties’"
that are "filed with an employer using an internal grievance
procedure . . . do[ ] not relate to a matter of public concern
and accordingly ‘may give rise to discipline without imposing
any special burden of justification on the government
employer.’" Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct.
2488, 2501 (2011) (quoting United States v. Treasury Emp.,
513 U.S. 454, 466 (1995)). We therefore affirm the grant of
summary judgment for the defendants.
I.
Plaintiffs James Brooks and Donald Hamlette were
employees of the Virginia Department of Corrections
("VDOC") working at Rustburg Correctional Unit #9 in Rust-
burg, Virginia. Brooks was a senior corrections officer, super-
BROOKS v. ARTHUR 3
vised by Hamlette, a lieutenant. Hamlette is African-
American and a Baptist minister. Both men reported to the
defendants, Howard Arthur, the Superintendent, and Major
Randal Mitchell, the Assistant Superintendent.
On April 7, 2006, Brooks met with Althea McKnight, a
personnel assistant with the VDOC’s Equal Employment
Opportunity office, to discuss filing a discrimination charge
against Arthur. No formal charge was made at that time, but
on May 9, 2006, Brooks met with Larry Huffman, the
VDOC’s Regional Director and Arthur’s direct superior, to
elaborate on his complaints. Among other things, Brooks
reported that Mitchell embarrassed him by reprimanding him
in front of inmates in violation of Department policy. After
this meeting, Arthur called Brooks into his office to discuss
his complaints and Brooks’s decision to take them to a higher
level in the chain of command. Brooks claims that Arthur told
him that "you won’t hear anything" about the allegations
Brooks had made to Huffman.
At the same time, Hamlette also began pursuing proceed-
ings against Arthur and Mitchell. On April 21, 2006, he filed
an EEO complaint alleging that the defendants discriminated
against him on the basis of race and religion. He complained
that, as the only African-American lieutenant in the unit, he
was treated differently from the other officers. Hamlette
alleged incidents including additional unwarranted security
checks during his shift, an insinuation that Hamlette would
not have reported a disciplinary violation involving an inmate
with a cell phone, the more lenient disposition of disciplinary
charges against an inmate who was disrespectful to Hamlette,
and the selection of Hamlette for less-advantageous duty
assignments in the prison kitchen. Hamlette named Brooks as
a potential witness to these allegations.
On August 30, 2006, one day before witness responses
were due to the EEO, Arthur issued termination notices to
Hamlette and Brooks for disciplinary violations that Arthur
4 BROOKS v. ARTHUR
observed during a monthly security inspection of the unit.
These notices alleged that Brooks and Hamlette failed to staff
posts as required and falsified inmate count records. Brooks
and Hamlette challenged their terminations with the VDOC
Department of Employment Dispute Resolution, which
reduced the severity of the charges, limited the complainants’
punishment to ten-day suspensions, reinstated both men’s
employment, and awarded them back pay.
On September 2, 2008, Brooks and Hamlette filed com-
plaints in federal district court under 42 U.S.C. § 1983. They
first alleged that defendants retaliated against them for the
exercise of their First Amendment rights in the course of
lodging their employment complaint. The second count
claimed defendants deprived plaintiffs of due process under
the Fourteenth Amendment by interfering with the employ-
ment dispute process. A third count alleged a state law claim
against Arthur for tortious interference with plaintiffs’
employment contract with the VDOC.
The district court initially dismissed the complaint in its
entirety as barred by res judicata, holding that the VDOC and
the defendants were in privity during the employment dispute
resolution proceedings. See Brooks v. Arthur, 611 F. Supp. 2d
592 (W.D. Va. 2009). This court reversed that determination
and allowed the claims to proceed. See Brooks v. Arthur, 626
F.3d 194 (4th Cir. 2010). On remand, the district court con-
cluded that "the ‘threshold question’ of showing that Plain-
tiffs’ speech addressed a matter of public concern has not
been satisfied," Brooks v. Arthur, 2011 WL 3102791, at *14
(W.D. Va. 2011) (internal citation omitted), and therefore
granted summary judgment for the defendants on July 26, 2011.1
This appeal followed.
1
Plaintiffs did not oppose the entry of summary judgment for the defen-
dants as to the due process claim, and so the only counts at issue before
this court are the First Amendment claim and the state law tortious inter-
ference claim.
BROOKS v. ARTHUR 5
II.
We review the district court’s grant of a motion to dismiss
de novo. See Lux v. Judd, 651 F.3d 396, 401 (4th Cir. 2011).
In so doing, however, we must respect the limits the Supreme
Court has imposed on suits by public employees alleging
retaliation for expression protected by the First Amendment.
A.
It is undisputed that public employees may not "constitu-
tionally be compelled to relinquish the First Amendment
rights they would otherwise enjoy as citizens to comment on
matters of public interest." Pickering v. Bd. of Educ., 391 U.S.
563, 568 (1968). But this protection "does not require a public
office to be run as a roundtable for employee complaints over
internal office affairs." Connick v. Myers, 461 U.S. 138, 149
(1983). In Connick, the Supreme Court stressed that "the
repeated emphasis in Pickering" on the need for an employee
to be speaking as a citizen on matters of public concern "was
not accidental," id. at 143, but rather sets the boundaries of
what speech is protected in the public employment setting.
To implement Connick, this court in Daniels v. Quinn, 801
F.2d 687 (4th Cir. 1986), and McVey v. Stacy, 157 F.3d 271(4th Cir. 1998), adopted a three-part test to determine whether
a public employee has stated a First Amendment claim for
retaliatory discharge. First, we consider "whether the public
employee was speaking as a citizen upon a matter of public
concern or as an employee about a matter of personal inter-
est." Id. at 277. Second, even if the employee spoke upon a
matter of public concern, we must determine "whether the
employee’s interest in speaking upon the matter of public
concern outweighed the government’s interest" in managing
the working environment. Id. And finally, if the employee’s
claim satisfies both of these legal criteria, the court turns to
the factual question of "whether the employee’s speech was
6 BROOKS v. ARTHUR
a substantial factor in the employee’s termination decision."
Id. at 277-78.
The first prong of the McVey test, whether the speech
addressed a matter of public concern, is "the threshold ques-
tion." Rankin v. McPherson, 483 U.S. 378, 384 (1987). If an
employee’s speech "cannot be fairly characterized as consti-
tuting speech on a matter of public concern, it is unnecessary
for us to scrutinize the reasons for [the employee’s] dis-
charge." Connick, 461 U.S. at 146. If the employee cannot
carry this burden, then summary judgment for the employer
is appropriate, even if the termination decision "may not be
fair" or is "mistaken or unreasonable." Id. at 146-47.
The Connick Court did not draw sharp lines for when "an
employee’s speech addresses a matter of public concern," but
instead directed courts to consider the "content, form, and
context of a given statement." Id. at 147-48. This is not to say
that Connick left the lower courts without guidance, however.
As to content, the Court cautioned against presuming "that all
matters which transpire within a government office are of
public concern." Id. at 149. To determine the protected status
of an employee’s speech, Connick directed us to scrutinize the
comments to assess whether they are intended "to evaluate the
performance of the office"—which would merit constitutional
protection—or merely "to gather ammunition for another
round of controversy" with superiors—which would not. Id.
at 148. The Connick Court was explicit on this point: "When
employee speech concerning office policy arises from an
employment dispute concerning the very application of that
policy to the speaker, additional weight must be given to the
supervisor’s view" that the employee’s speech addresses
solely a private dispute. Id. at 153. At bottom Connick reflects
the belief that many ordinary disputes in the public workplace
should be settled or resolved without calling the heavy artil-
lery of the Constitution into play.
More recently, the Supreme Court has expressed skepticism
that speech in the context of an employment grievance pro-
BROOKS v. ARTHUR 7
ceeding addresses a public concern meriting constitutional
protection under Pickering. In United States v. National Trea-
sury Employees Union, 513 U.S. 454 (1995), the Court held
that "private speech that involves nothing more than a com-
plaint about a change in the employee’s own duties may give
rise to discipline without imposing any special burden of jus-
tification on the government employer." Id. at 466. Most
recently, in Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct.
2488 (2011), the Court spoke very directly to the facts of this
case, holding that a "petition filed with an employer using an
internal grievance procedure in many cases will not seek to
communicate to the public or to advance a political or social
point of view beyond the employment context." Id. at 2501.
The mere fact that "the public may always be interested in
how government officers are performing their duties . . . will
not always suffice to show a matter of public concern." Id.As the district court recognized, our court presaged these
recent instructions from the Supreme Court in earlier cases
applying Connick and Pickering. In Stroman v. Colleton
County School District, 981 F.2d 152 (4th Cir. 1992), we
stated that "[p]ersonal grievances [such as] complaints about
conditions of employment . . . do not constitute speech about
matters of public concern that are protected by the First
Amendment." Id. at 156. Similarly, in Goldstein v. Chestnut
Ridge Volunteer Fire Co., 218 F.3d 337 (4th Cir. 2000), we
held that "mere allegations of favoritism . . . and other com-
plaints of interpersonal discord[ ] are not treated as matters of
public policy." Id. at 352. Thus, although this court has
declined to "articulate any sort of bright-line rule," Campbell
v. Galloway, 483 F.3d 258, 269 (4th Cir. 2007), we have been
wary of affording the broad cover of the First Amendment to
comments limited to "grievances about conditions of employ-
ment that cannot be considered matters of public concern," id.
at 267. It is against this backdrop that we must evaluate what
if any protection should be afforded to the plaintiffs’ speech
in this case.
8 BROOKS v. ARTHUR
B.
Examining Hamlette’s allegations, we conclude that his
speech pertained to personal grievances and complaints about
conditions of employment rather than broad matters of policy
meriting the protection of the First Amendment. As Connick
directs courts to look at the "content, form, and context" of
employee statements, Connick, 461 U.S. at 147, we shall take
them up in turn.
Turning first to the content, Hamlette’s EEO complaint
focuses on personal dissatisfactions that are not matters of
public concern. Indeed, his complaint is replete with I’s and
me’s. First, in alleging that Major Mitchell mistreated him
during an investigation of an inmate’s possession of a cell
phone, Hamlette stated that Mitchell "really hurt me because
he was insinuating that if an inmate had told me where the
cell phone was that I would not have told them." Second, in
objecting to the dismissal of a complaint he had filed against
an inmate, Hamlette complained that "they did not want to set
too high a standard for the inmates, but the inmate disre-
spected me whether Major Mitchell thought so or not." Lastly,
Hamlette questioned "why the food service supervisor can be
disrespected enough to have an inmate locked up but when I
am disrespected the inmate walks or the charge is thrown
out."
None of these allegations addresses any public matter.
While Hamlette undoubtedly—and perhaps justifiably—felt
slighted by some of the alleged conduct, a purely personal
grievance is not a matter of public concern. At the very end
of Hamlette’s allegations in his internal EEO complaint, he
asks rhetorically whether the affronts of which he complained
resulted "because I am a minister or because I am the only
black lieutenant." As we shall explain, discriminatory institu-
tional policies or practices can undoubtedly be a matter of
public concern. See infra Part II.C. The gravamen of this mat-
ter, however, remains a series of personal differences between
BROOKS v. ARTHUR 9
Hamlette and Mitchell over such things as Mitchell’s handling
of Hamlette’s complaint against an inmate or the treatment of
an inmate who cursed at a kitchen supervisor. What seems
clear is that Hamlette and Mitchell did not get along. Were we
to constitutionalize poor personal chemistry in the workplace,
however, we would, as the district court recognized, elevate
the infinitude of worker dissatisfactions with supervisors to a
constitutional plane.
The Supreme Court has warned us to guard against "attem-
pt[s] to constitutionalize the employee grievance." Connick,
461 U.S. at 154. Indeed, Hamlette’s comments fall squarely
within the framework that Connick established for complaints
of a purely private nature. First, Hamlette "did not seek to
inform the public that [the VDOC officers were] not discharg-
ing [their] governmental responsibilities." Id. at 148. Second,
he did not "seek to bring to light actual or potential wrongdo-
ing or breach of public trust." Id. Third, Hamlette’s complaint,
"if released to the public, would convey no information at all
other than the fact that a single employee is upset with the sta-
tus quo." Id.The same conclusion obtains from the "form and context,"
id., of Hamlette’s complaint. As the Supreme Court has
emphasized, "[t]he forum in which a petition is lodged will be
relevant to the determination of whether the petition relates to
a matter of public concern." Guarnieri, 131 S. Ct. at 2501. In
Guarnieri, the Court applied Connick’s analysis of retaliation
claims under the Speech Clause of the First Amendment to
similar claims brought under the Petition Clause. Id. at 2500.
The Court stressed that the right of a public employee "to par-
ticipate as a citizen, through petitioning activity, in the demo-
cratic process . . . is not a right to transform everyday
employment disputes into matters for constitutional litigation
in the federal courts." Id. at 2501. The Court reminded the
lower courts that a "petition filed with an employer using an
internal grievance procedure in many cases will not seek . . .
to advance a political or social point . . . beyond the employ-
10 BROOKS v. ARTHUR
ment context." Id. The point of filing a claim through an inter-
nal employment dispute resolution system is to address "the
government in its capacity as the petitioners’ employer, rather
than its capacity as their sovereign." Id. at 2506 (Scalia, J.,
concurring in part and dissenting in part). And the relief such
a grievance process offers is typically redress of a "purely pri-
vate concern, [for which] the employee’s First Amendment
interest must give way." Id. at 2500 (maj. op.).
Thus it is quite relevant that Hamlette chose to make these
comments in the context of the VDOC EEO process. In con-
trast to a letter to a local newspaper, see Pickering, 391 U.S.
at 564, Hamlette’s speech through "an internal grievance pro-
cedure" demonstrates that he does "not seek to communicate
to the public or to advance a political or social point of view
beyond the employment context." Guarnieri, 131 S. Ct. at
2501. An employee like Hamlette who seeks primarily resolu-
tion of his personal situation through an employer-provided
grievance process simply does not speak with the civic intent
necessary to invoke the First Amendment.
C.
Our confidence in the conclusion that this speech was not
on a matter of public concern is bolstered by comparison of
the facts of this case to other decisions in which this court has
concluded that employee speech merited First Amendment
protection.
First, in Cromer v. Brown, 88 F.3d 1315 (4th Cir. 1996),
this court concluded that a letter of complaint from an associ-
ation of African-American law enforcement officers to their
supervising sheriff spoke to matters of public concern. Unlike
this case, the complaint in Cromer presented at least five
detailed allegations of systemic racial discrimination. See id.
at 1325 (listing "(1) ineffective minority recruitment efforts,
(2) lack of opportunity for black officers to cross-train in and
transfer into prestigious units, such as white collar and major
BROOKS v. ARTHUR 11
crimes, (3) lack of promotional opportunities for blacks and
loss of faith in the promotion process, (4) methods of investi-
gation by the all-white internal affairs unit that caused racial
polarization, and (5) favoritism to white officers in the alloca-
tion of new equipment"). This court noted that these com-
plaints of racial discrimination were not focused on a
particular individual’s situation, but rather "prompted an
expression of concern about the inability of the sheriff’s
office to carry out its vital public mission effectively." Id. at
1325-26. Similarly, the fact that the letter "was delivered in
the context or circumstance of a group complaint" empha-
sized the fact that it "was not the expression of a single dis-
gruntled employee about a personal employment dispute." Id.
at 1326.
Here, while some of Hamlette’s complaints referred to the
disciplining of inmates, his concern was not expressed in
terms of a breakdown in effective prison management, but
rather focused on his personal displeasure with his supervi-
sors. These highly individualized concerns stand in sharp con-
trast to the complaint in Cromer, which addressed
department-wide procedures, made outside an employee
grievance channel, and represented the concerns of a larger
group of officers within the department.
Second, in Campbell v. Galloway, 483 F.3d 258 (4th Cir.
2007), we proceeded with some caution in evaluating a
female police officer’s allegations of sexual harassment and
gender discrimination, noting that "a complaint about sexual
harassment or discrimination is not always a matter of public
concern." Id. at 268. This court concluded, however, that
Campbell had met her burden under Connick because she
made both complaints as to matters of public safety, such as
"that male officers did not back her up on dangerous calls,"
id. at 269, and "complaints about inappropriate conduct
directed towards other female [officers]," id., and even toward
female "members of the public," id. at 270. And we empha-
sized that "Campbell did not bring the sexual harassment
12 BROOKS v. ARTHUR
issues to Chief Galloway’s attention in order to resolve her
own personal problem[, but] was seeking to challenge the
practice within the department as much as she was seeking a
resolution of her own complaint." Id. As noted, Hamlette’s
complaint could not be more different. He neither raised
issues of equivalent public import nor did he seek anything
other than an improvement of his own situation.
Lastly, in Goldstein v. Chestnut Ridge Volunteer Fire Co.,
218 F.3d 337 (4th Cir. 2000), we concluded that a fire-
fighter’s complaints about inadequate training and equipment
as well as unsafe procedures during emergency calls were
matters of public concern. Id. at 353. This court rejected,
however, the claim that Goldstein’s other complaints of favor-
itism, which are decidedly similar to those of Hamlette, were
of public interest. Like Hamlette, Goldstein alleged that his
captain discriminated in issuing crew suspensions and that
other policies were "enforced against some but not others." Id.We dismissed these "matters of internal policy, favoritism,
and other employment-related matters" as "not of public con-
cern." Id.Read together, these portions of Goldstein and Campbell
serve as a useful guide, insofar as they illuminate the bound-
ary between protected speech and personal grievance. Private
matters between employers and employees may be the subject
of internal controversy, but whether someone’s sense of fair
play is offended is not the constitutional inquiry. If favoritism
crosses a line to the point that imperils the public welfare,
such as Campbell’s allegation that she was inadequately sup-
ported on dangerous police assignments because she was
female, then the public would rightly be concerned about the
matter. But if favoritism pertains primarily to a single individ-
ual, as both here and in Goldstein, that is not an issue of con-
stitutional dimension.
D.
This analysis applies with equal force to Brooks’ allega-
tions of favoritism, which are of a similarly individualized
BROOKS v. ARTHUR 13
nature to those of Hamlette. But Brooks additionally claims
that he was entitled to First Amendment protection because he
was named as a potential witness in Hamlette’s EEO com-
plaint. This contention is also without merit. Having deter-
mined, as discussed above, that Hamlette’s complaint was
intended solely to address his personal grievances and not any
matters of public concern, Brooks’ involvement in that com-
plaint does not give rise to a First Amendment claim. See Arv-
inger v. Mayor of Baltimore, 862 F.2d 75, 79 (4th Cir. 1988).
This is not to say that we ignore the importance of protect-
ing complainants and the witnesses they call during official
investigations. But as we noted in Arvinger, it falls to statutes,
not the First Amendment, to protect such speech. For exam-
ple, 42 U.S.C. § 2000e-3(a) makes it unlawful to discriminate
against an employee because "he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing." Id. But in the absence of such an "ap-
plicable statute or regulation," Connick, 461 U.S. at 146, the
Constitution by itself does not provide a warrant for "intrusive
oversight by the judiciary [of employment decisions] in the
name of the First Amendment." Id. We therefore affirm the
district court’s dismissal of Brooks’ First Amendment claim.2
III.
It is important to emphasize the precise nature of our hold-
ing. A variety of federal statutes and state law causes of action
may provide plaintiffs a proper avenue of redress. We do not
offer any view on the merits of plaintiffs’ claims, but rather
2
Plaintiffs also appeal the district court’s dismissal of their state law
claim for tortious interference with contract. As the district court found,
however, Arthur was acting within the scope of his employment in termi-
nating Brooks and Hamlette. Because Arthur was an agent of the VDOC,
he was not a third party capable of interfering with the contract between
plaintiffs and the VDOC. See Brooks v. Arthur, 2011 WL 3102791, at *15
(W.D. Va. 2011). We therefore affirm the district court’s dismissal of this
count.
14 BROOKS v. ARTHUR
on the way they have chosen to press them. The most basic
teachings of the Supreme Court do not permit placement of
this case within a Connick framework. It is "no defeat for the
First Amendment," id. at 154, that we do not permit "every
criticism directed at a public official . . . [to] plant the seed
of a constitutional case." Id. at 163. The First Amendment’s
"aim is the full protection of speech upon issues of public
concern." Id. at 154. Viewed in the context of the employee-
grievance system in which these claims were filed and in
comparison to pertinent precedents of both the Supreme Court
and this circuit, the personal character of the suit cannot be
gainsaid. We do not diminish the significance of personal
grievances to the parties involved—indeed the VDOC inter-
nally reversed the terminations of Hamlette and Brooks—but
private concerns are just that: significant chiefly to the parties
involved. The First Amendment demands more. In recogni-
tion of "the government’s interest in the effective and efficient
fulfillment of its responsibilities to the public," id. at 150, we
must respect the line the Supreme Court has drawn, and plain-
tiffs’ grievances clearly fall on the private side of it.
The judgment of the district court is therefore
AFFIRMED.