McBride v. Glenn

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HERBERT D. MCBRIDE,
Plaintiff-Appellant,
v.
ROBERT W. GLENN, JR., individually
and in his official capacity as
No. 95-1143
Chairman of the City of Roanoke
Redevelopment and Housing
Authority; CITY OF ROANOKE
REDEVELOPMENT AND HOUSING
AUTHORITY,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-93-349)
Argued: December 6, 1995
Decided: March 5, 1996
Before WILKINSON, Chief Judge, and WILLIAMS, Circuit Judge,
and THORNBURG, United States District Judge for the Western
District of North Carolina, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: James Broome Thorsen, THORSEN, PAGE & MAR-
CHANT, Richmond, Virginia, for Appellant. Clinton Stephen Morse,
WOODS, ROGERS & HAZLEGROVE, P.L.C., Roanoke, Virginia,
for Appellees. ON BRIEF: Todd A. Leeson, WOODS, ROGERS &
HAZLEGROVE, P.L.C., Roanoke, Virginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Herbert D. McBride appeals the district court's grant of summary
judgment to appellees, the Roanoke Redevelopment and Housing
Authority and its Board Chairman Robert W. Glenn, Jr., on the
ground that McBride's termination as Executive Director of the
Authority did not infringe his constitutional or contractual rights. We
affirm.
I.
This case arises out of the Authority's decision to discharge Her-
bert McBride in May, 1992. McBride was selected as the Executive
Director of the Authority in 1981. Glenn assumed the Chairmanship
of the Authority's Board in 1991.
Glenn and McBride had a strained relationship. In late October,
1991, Glenn wrote to McBride to outline performance deficiencies in
McBride's management of the Authority, including that he was inac-
cessible, unresponsive, and failed to follow basic business practices.
Glenn explained that considerable improvement in McBride's perfor-
mance would be required, and that the Board would evaluate
McBride's progress in the subsequent six months and"make a deter-
mination about [ ] future employment status at that time."
As part of his duties as Executive Director, in late February, 1992,
McBride sought the Board's approval of a new personnel policy. That
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policy noted that the procedures contained within it did not create an
employment contract and stated that the employment relationship was
"at will." McBride signed a form acknowledging the nature of the
employment relationship.
As Executive Director, McBride served as spokesman for the
Authority. In an October, 1990 newspaper article, McBride was
quoted as saying that the ceiling of a resident's apartment was made
of light-weight dry wall, thus apparently dismissing her concern that
the ceiling might collapse. In another article in July, 1991, McBride
was quoted as touting the Roanoke area as an agreeable place for poor
people to live because they could always find something to eat at soup
kitchens or in "the dumpsters--you might have to take one half of the
banana and throw it away, but you can eat the other half."
As the six month evaluation period for McBride drew to a close,
the Board met on May 2, 1992, and voted to dismiss McBride as
Executive Director of the Authority. McBride refused an offer from
the Board to resign. The Board then publicly announced its decision,
stating that it was based on "unsatisfactory job performance" and a
"lack of compatibility." McBride subsequently brought this action
against the Authority and Glenn. The district court granted summary
judgment to the defendants. McBride now appeals.
II.
A.
McBride first claims that the Board's decision to terminate him
deprived him of a protected property interest without due process of
law and breached his contract rights. As the district court found, how-
ever, McBride was an at will employee. McBride v. City of Roanoke,
871 F. Supp. 885, 890 (W.D. Va. 1994). McBride acknowledged as
much by signing a certification that stated: "I understand that my
employment is mutually terminable at will, with or without notice or
stated reason . . ." Such an acknowledgment is sufficient under Vir-
ginia law to create an at will employment relationship. Progress
Printing Co., Inc. v. Nichols, 421 S.E.2d 428, 431 (Va. 1992). As an
at will employee, McBride did not have a property interest in his job
under state law and thus could not invoke the requirements of proce-
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dural due process. Board of Regents v. Roth, 408 U.S. 564, 569
(1972); Jenkins v. Weatherholtz, 909 F.2d 105, 107 (4th Cir. 1990).
Nor could he assert a claim for breach of contract. Progress Printing,
421 S.E.2d at 431.
McBride's attempt to invoke the protections of the state's griev-
ance procedure is unavailing. First, McBride cannot complain that he
was denied the protections of the grievance procedure when he never
attempted to invoke them. Second, the district court found that the
Authority offered unrefuted evidence that McBride was exempt from
that procedure as an "[a]gency head[ ] or chief executive officer[ ] of
government operations . . . appointed by boards and commissions."
Va.Code § 2.1-114:5:1(C)(1)(b).
B.
McBride next alleges that the Board's decision to discharge him
infringed a liberty interest without due process of law. When the
Board terminated McBride, however, it stated that there was "no sug-
gestion of unlawful conduct or other impropriety." It explained that
its decision rested on "unsatisfactory job performance" and "lack of
compatibility." This statement did not impose a stigma on McBride.
Roth, 408 U.S. at 573-74. McBride's dismissal consequently did not
cause the sort of reputational injury that may constitute an infringe-
ment of a liberty interest. See Id. at 575; Robertson v. Rogers, 679
F.2d 1090, 1092 (4th Cir. 1982) (termination for"incompetence and
outside activities" does not infringe a liberty interest).
C.
McBride finally contends that the Board improperly terminated
him because of the statements attributed to him in the Roanoke news-
paper, which he claims were an exercise of his First Amendment
rights. But even assuming that the statements attributed to McBride
played a role in his discharge, and that they related to matters of pub-
lic concern, Connick v. Myers, 461 U.S. 138, 143-46 (1983), the state-
ments were insensitive, to say the least, for the Executive Director of
a low-income housing authority. McBride himself admitted he was
"appalled" by them. The Authority's interest in the "effective and effi-
cient fulfillment of its responsibilities to the public," id. at 150, cer-
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tainly outweighed any interest McBride might have had in making
these statements.
III.
We affirm for the reasons stated by the district court in its careful
opinion.
AFFIRMED
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