Cromer v. Brown

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PATRICK H. CROMER,
Plaintiff-Appellant,
v.
JOHNNY MACK BROWN, individually
and in his official capacity as
Greenville County Sheriff;
No. 94-1403
GREENVILLE COUNTY SHERIFF'S
OFFICE,
Defendants-Appellees.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, District Judge.
(CA-92-3555-6-20-AK)
Argued: December 7, 1994
Decided: July 15, 1996
Before RUSSELL and MICHAEL, Circuit Judges, and MESSITTE,
United States District Judge for the District of Maryland, sitting by
designation.
_________________________________________________________________
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Michael wrote the opinion, in which Judge Russell and
Judge Messitte joined.
_________________________________________________________________
COUNSEL
ARGUED: Stephen John Henry, TAYLOR & HENRY, Greenville,
South Carolina, for Appellant. Anna Maria Conner, HAYNS-
WORTH, BALDWIN, JOHNSON & GREAVES, P.A., Greenville,
South Carolina, for Appellees. ON BRIEF: Thomas A. Bright,
HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, P.A.,
Greenville, South Carolina, for Appellees. James R. Neely, Jr., Dep-
uty General Counsel, Gwendolyn Young Reams, Associate General
Counsel, Lorraine C. Davis, Assistant General Counsel, Robert J.
Gregory, EQUAL EMPLOYMENT OPPORTUNITY COMMIS-
SION, Washington, D.C., for Amicus Curiae.
_________________________________________________________________
OPINION
MICHAEL, Circuit Judge:
Patrick Cromer, an African American who sued his former
employer (Johnny Mack Brown, the Sheriff of Greenville County,
South Carolina) for racial discrimination and First Amendment viola-
tions, appeals from the grant of summary judgment to the sheriff on
some claims and the dismissal of others. We affirm in part, reverse
in part, and remand for further proceedings.
First, Cromer claims that because of his race Sheriff Brown
demoted him from captain to lieutenant, and then fired him from his
job as lieutenant, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000 et seq. The district court held that Cromer
was not protected under Title VII because (as both captain and lieu-
tenant) he fit within the statute's exclusion for the "personal staff" of
an elected official. We affirm the district court on the captaincy exclu-
sion, but we reverse on the lieutenancy. We hold that Cromer was not
on Sheriff Brown's personal staff when he was a lieutenant, so the
Title VII claim is remanded insofar as it charges that Cromer was
fired from his job as lieutenant because of race.
Second, Cromer claims that he was demoted and discharged
because of his race in violation of the Civil Rights Act of 1991, 42
2
U.S.C. § 1981. Sheriff Brown took these actions before the effective
date of the amendments to § 1981, and the district court dismissed the
§ 1981 claims on the ground that the Civil Rights Act of 1991 is not
applied retroactively. We summarily affirm the dismissal of these
claims. See Rivers v. Roadway Express, Inc., 114 S. Ct. 1510, 1513
(1994) (the Civil Rights Act of 1991 does not apply retroactively to
cover conduct completed prior to the law's enactment).
Third, invoking 42 U.S.C. § 1983, Cromer claims that Sheriff
Brown fired him from his job as lieutenant in violation of his First
Amendment rights of free speech and association because Cromer
joined a black officers' association and spoke up about perceived
racial discrimination in the sheriff's office. On these claims, the dis-
trict court granted summary judgment to Sheriff Brown in his individ-
ual capacity, holding that the sheriff was entitled to qualified
immunity. We disagree and reverse on this point. Cromer had a
clearly established right (of which a reasonable official would have
known) to speak up about the widespread perception of racial dis-
crimination in the sheriff's department and to join an association of
black officers formed to bring complaints of discrimination to the
sheriff's attention. To the extent the § 1983 claims were against Sher-
iff Brown in his official capacity, we affirm the district court's hold-
ing that the sheriff, as a state official, is immune from suit for money
damages. We reverse the district court's determination that the doc-
trine of official immunity protects the sheriff from claims for injunc-
tive relief.
I.
A.
The facts about Cromer's different roles as captain and lieutenant
are not in dispute. We construe the other facts in the light most favor-
able to Cromer, the non-moving party below. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986).
Sheriff Brown's predecessor in office hired Cromer to work as a
deputy sheriff in 1974. In 1976 Brown was elected sheriff. Upon tak-
ing office in January 1977, Brown recommissioned Cromer as a dep-
uty. Within the next two weeks Sheriff Brown promoted Cromer
3
twice, first to sergeant and then to lieutenant. Cromer served as a lieu-
tenant from 1977 until 1988.
During the twelve-year period from 1977 to 1988, Sheriff Brown
denied Cromer a promotion to captain several times. According to
Cromer, Sheriff Brown refused to promote him because of Cromer's
long-term relationship with a white woman, Beth Johnson. Specifi-
cally, Cromer testified (in deposition) as follows:
Question: [When you asked Sheriff Brown about promo-
tion to captain], [w]hat did he say?
Cromer: At that time, I was dating a white female and he
told me that he would have a serious problem with me being
a captain for him, since I was dating that white girl. . . .
Question: All right. Tell me about that conversation.
When did this take place? . . .
Cromer: That conversation ha[s] taken place many times
with myself and Sheriff Brown over the years.
***
Question: I want to know [about each one of the conversa-
tions] to the best of your recollection.
Cromer: All I'm telling you, we had many conversations
concerning Beth and he made it good and clear that he
didn't appreciate interracial dating. He didn't like it and he
wasn't tolerated [sic] for it and he just couldn't handle it and
he made it good and plain to me. And many times, he threat-
ened to terminate me . . . .
The sheriff also let Cromer know that he should not bring Beth to the
Annual Sheriff's Office Awards Banquet. This led Lieutenant Cromer
to tell his immediate supervisor, Captain Sorrow, that "I would not be
attending those awards if I couldn't bring Beth."
4
In 1988 Major Barnett, the officer of highest rank under Sheriff
Brown, suggested to the sheriff that he promote Cromer to captain.
Major Barnett later told Cromer "that the Sheriff had reservations, but
he [Barnett] was standing tall to try to get me promoted because he
felt like I was qualified and it was about time." In June 1988 Cromer
again talked with the sheriff about the possibility of a promotion.
Again, Beth, Cromer's white companion, was a subject of discussion.
However, on July 1, 1988, Sheriff Brown made Cromer the first black
captain in the history of the Greenville County Sheriff's Office.
As one of four captains, Cromer stood high in the chain of com-
mand in the sheriff's office. He commanded one of four divisions,
Uniform Patrol, and supervised 185 officers, including five lieuten-
ants and twenty-six sergeants. Cromer was outranked only by Major
Barnett and Sheriff Brown. Together, the four captains, the major and
the sheriff made up the "command staff." The command staff met
weekly to discuss operations, policy and procedure. Cromer felt he
had a "strong, effective voice" in policy discussions when he was cap-
tain. The command staff was also responsible for community rela-
tions. Once, while Cromer was captain, the command staff met with
the president of the Greenville County NAACP. Cromer told the pres-
ident, "I [am] the Captain of Uniform Patrol and . . . black, if there
[are] racial problems [in the sheriff's office], they [are] brought
directly to me and we [will] handle them."
Cromer's tenure as captain did not go smoothly. Cromer apparently
believes that certain white lieutenants orchestrated a campaign to
have him ousted as captain. Sheriff Brown says that certain lieuten-
ants did begin to question Cromer's methods of supervision and that
Major Barnett investigated the complaints by interviewing the com-
plaining lieutenants and several sergeants. Barnett then reported to
Brown, who demoted Cromer from captain to lieutenant on March 13,
1991. Sheriff Brown asserts that he demoted Cromer because he had
"lost his ability and his effectiveness as a commander of the uniform
patrol." According to the sheriff, Cromer lost his effectiveness
because he supervised through fear and retaliation. Cromer claims his
demotion was because of his race. He was treated differently, he says,
than any white captain whose performance was ever questioned.
5
White captains with performance problems had simply been reas-
signed to other duties without taking a demotion in rank.1
As a lieutenant Cromer no longer participated in command staff
meetings. He rarely saw Sheriff Brown. Cromer's only formal contact
with the sheriff occurred at monthly meetings, which were attended
by every officer in the department. As a lieutenant Cromer was nei-
ther involved in creating department policy nor consulted on any pro-
posed changes to policy.
On May 1, 1991, six weeks after Cromer's demotion, most (about
30) of the sheriff department's 32 black deputies met after work at a
private residence. There, under the leadership of Sergeant Paul Guy,
they formed a group called the Black Law Enforcement Officers
Association (the "Association"). Cromer attended the Association's
first four meetings. Each meeting was held after work at a private res-
idence. At the Association's meetings the black officers discussed
their concerns about racial problems in the sheriff's department. After
the fourth meeting, in mid-May, 1991, the Association submitted pri-
vately to Sheriff Brown an unsigned letter entitled"Race Relationship
Within The Greenville County Sheriffs Office As Perceived By Black
Deputies."2
The seven-page letter began by saying that "Black officers within
the [Greenville County Sheriff's Office] have formed a committee to
discuss the racial climate within the Sheriff's Office." The letter's
introduction explained that the black officers had come to a "consen-
sus" that the command staff and certain unwritten policies in the
department were "inhibit[ing] the advancement of Black officers." "It
is also the consensus among Black officers," the letter continued,
"that supervisors are attempting to target, categorize, and defame
Black officers who exhibit any form of leadership qualities." The let-
ter's introduction ended with the complaint "that the overall white
structure" in the sheriff's office had little or no understanding of "the
_________________________________________________________________
1 As we indicate in other parts of this opinion, we are affirming the
judgment in favor of Sheriff Brown as to all of Cromer's claims for dis-
criminatory demotion.
2 Apparently the letter was slipped under Sheriff Brown's door while
he was out of the office.
6
Black ethos," which led "to a High level of insensitivity toward Black
officers. This insensitivity is both destructive and dangerous in
regards to . . . the overall effectiveness of the[sheriff's office] as a
Law Enforcement Agency."
Next in the letter the black officers discussed several areas where
they believed blacks were receiving unequal treatment. These
included minority recruitment, cross-training and transfers, promo-
tion, make-up of the Office of Professional Standards (internal
affairs), off-duty jobs and equipment.
As to recruitment, the Association said that the department's
recruitment officer "lack[ed] the needed expertise in minority recruit-
ment." Recruiters projected an image of the department that "discour-
age[d] Black applicants."
As to cross-training and transfers, the Association said:
It is felt that [white] supervisors have deliberately limited
Black officer's growth by not advancing qualified Black
officers. This is transmitted by White supervisors recom-
mending White officers for cross training in certain areas
within CID such as, white collar crime section, housebreak-
ing section, school district and major crime section. White
supervisors within these divisions have made their position
known to supervisors in uniform patrol as to whom they
want and do not want. Therefore, many officers never have
the opportunity to display their abilities.
The letter charged that the supervisors of two prestigious units, white
collar and major crimes, had "made a conscious effort" to keep "their
sections exclusively White."
Lack of promotional opportunities for blacks was a theme that
appeared throughout the letter. Major Barnett was criticized for recent
newspaper comments that, according to the Association, "le[ft] the
reader with the opinion that there are no Black officers with the capa-
bilities and qualifications to be promoted." Black officers were dis-
couraged and many felt that "favoritism is shown toward White
7
officers with less education and less job experience. Black officers are
beginning to lose faith in the promotional process." Specifically, the
Association charged that promotional boards were biased against
black officers, particularly because the boards did not exercise appro-
priate independence.
The Association asserted that the Office of Professional Standards
(internal affairs), which was staffed by white officers, conducted
internal investigations in ways that "pit White officers against Black
officers." The Association suggested the assignment of a black officer
to internal affairs.
As to off-duty jobs, the Association charged that the highest paying
jobs (apparently those in retail stores) went to white officers. As to
equipment, the group complained that "White officers get the first
choice in new equipment." Finally, the black officers believed there
was a need for a black negotiator on the SWAT team.
Sheriff Brown was quite upset by the letter, and he blamed Cromer.
"I suspected Cromer," the sheriff testified,"because of his reduction
in rank. In the past 15 to 17 years prior to this, there was never any
hint of discontent, never. No rumors, nothing. I concluded it had to
have started after Cromer was demoted. Something like this does not
happen overnight."
Sheriff Brown admitted that he was very angry at Cromer for not
coming to his (the sheriff's) defense. The sheriff said he was not
angry because Cromer had gone to the meetings of the Association.
Rather, the sheriff said, he was angry "[b]ecause [Cromer], above
anybody else, should have known that none of these complaints were
legitimate." According to the sheriff, Cromer should have known the
complaints were not true because Cromer before his demotion sat on
promotion and interview boards and participated in command staff
meetings where policy was made. The sheriff therefore believed that
Cromer could have answered all of the complaints at the Association
meetings, providing a full defense for the sheriff.
On May 22, 1991, Sheriff Brown sent each black officer a six-page
response to the Association's letter. The sheriff opened his response
by explaining that "I have personally worked to create a personnel
8
process that is colorblind, and emphasizes merit over personalities."
The sheriff denied each of the charges, but he nevertheless expressed
a willingness to work hard to cure any perception that race played a
role in the operations of his office.
In his written response Sheriff Brown placed much of the blame for
any problems at the feet of a "black Captain, who was a member of
the command staff until recently." The sheriff was referring to Cro-
mer. He said that Cromer never complained that black officers were
being discriminated against in assignment and promotion. According
to the sheriff, in a meeting between the command staff and the presi-
dent of the Greenville County NAACP, Cromer assured the president
that "we had no racial problems in the Sheriff's Office." The sheriff
said that Cromer had congratulated the department's recruiter for out-
standing minority hires. Finally, the sheriff said that because Cromer
had recently been in charge of Uniform Patrol, any failure to transfer
black officers out of Uniform Patrol into more prestigious units
"would have had . . . [Cromer's] support and endorsement." In short,
the sheriff blamed Cromer for his troubles.
Sheriff Brown closed his letter to the black officers as follows:
I have reviewed all of the above complaints and tried to
respond to them. I am deeply disturbed that such serious
complaints exist. If they are factually documented, I will
take strong action to eliminate them. It appears that most of
the complaints dealing with employment and promotions are
not justified by the facts. . . . However, I am equally con-
cerned with even the perception of racial division. . . . Even
though we have a chain of command, my door is always
open for any officer to bring up complaints of such a serious
nature.
Sheriff Brown ended with this warning: "I will . . . not tolerate any
individual of any race using racial issues to pursue personal vendet-
tas."
On May 27, 1991, five days after Sheriff Brown's letter to the
black officers, Sergeant Rodney Watts, a member of the black offi-
cers' Association, wrote to the sheriff. Watts reported that Lieutenant
9
Kelley had claimed that Sheriff Brown made a racist remark about
Watts while talking with Kelley at the awards banquet about two
months earlier. Sergeant Watts requested a meeting with the sheriff.
Upon getting the letter, the sheriff called Watts to his office. Accord-
ing to Watts, when he walked in, Sheriff Brown "slammed that door
behind me, and he said `I can't believe you have the [expletive
deleted] audacity to send me this letter.' . . .`Pat Cromer put you up
to this, didn't he?'" Later in the meeting the sheriff again accused
Cromer. Both times Watts told the sheriff that Cromer had nothing to
do with Watts' letter. Within a week of this meeting Sheriff Brown
fired both Sergeant Watts and Cromer.
The personnel order terminating Cromer said simply that he was
fired for conduct "unbecoming an officer." Cromer learned that he
was to be fired from Major Barnett. Barnett told Cromer he was being
terminated for wrongfully accusing one officer of fixing a drunk driv-
ing ticket and for telling another officer that Sergeant Guy had
reported (at an Association meeting) that he had been asked to plant
drugs in the former county administrator's car. According to Cromer,
Major Barnett also admitted that Cromer's membership in the black
officers' Association and the Association's letter to the sheriff "had
a lot to do with" Cromer's termination. Cromer was then allowed to
see the sheriff, who said only, "Pat I'm very disappointed in you and
I don't even want to talk to you."3
Later, at a hearing before the South Carolina Employment Security
Commission, Major Barnett represented the sheriff's office in an
effort to block Cromer from receiving unemployment compensation.
Major Barnett testified that Cromer's firing was due in part to his
involvement in the Association and the "list of grievances" presented
to the sheriff. Barnett accused Cromer of using the Association for
personal gain instead of refuting the black officers' allegations with
facts.
_________________________________________________________________
3 Cromer says he was later told of another reason for his firing: that he
had allowed his lieutenants to keep two sets of overtime books when he
was captain. In other words, not all overtime was turned in for payroll;
overtime not turned in was kept in a second, unofficial set of books and
could be taken as "comp time." Cromer responds to all allegations by
denying any wrongdoing or improper conduct on his part.
10
B.
After his firing Cromer was granted a hearing by the Sheriff's
Department Grievance Board, an internal body. The board (made up
of a captain and two lieutenants) heard Cromer's case and concluded
that his firing was justified. Cromer then filed a complaint with the
federal Equal Employment Opportunity Commission (EEOC), which
determined that Cromer's discharge violated Title VII but that his
demotion did not. The EEOC issued Cromer a right-to-sue letter.
Cromer filed this suit in district court on December 21, 1992. As
we explained in the introduction, the district court disposed of Cro-
mer's case by granting summary judgment to Sheriff Brown on some
claims and by dismissing others. Cromer now appeals.
II.
We must first decide whether the district court was wrong to con-
clude that Cromer, both as lieutenant and captain, fell under Title
VII's exclusion for the "personal staff" of an elected official. This
conclusion led the district court to enter summary judgment for Sher-
iff Brown on Cromer's Title VII claims.
Title VII defines an "employee" as an "individual employed by an
employer." 42 U.S.C. § 2000e(f). The definition, however, excludes
"any person elected to public office in any State or political subdivi-
sion of any State by the qualified voters thereof, or any person chosen
by such officer to be on the officer's personal staff . . . ." Id.
The reach of Title VII's personal staff exclusion is a question of
federal, not state, law. Curl v. Reavis, 740 F.2d 1323, 1327 (4th Cir.
1984). "State law is only relevant `insofar as it describes the plain-
tiff's position, including his duties and the way he is hired, supervised
and fired.'" Id. (internal citation omitted). We must, therefore, ascer-
tain as a matter of federal law what Congress meant by the term "per-
sonal staff."
Although the statute does not define "personal staff," the word
"personal" certainly narrows the reach of the exclusion to some inti-
11
mate subset of the elected official's staff. With that observation in
mind, we look beyond the text to the exclusion's objectives as dis-
cussed in our prior cases. We have concluded that"`Congress
intended for the personal staff exception to apply only to those indi-
viduals who are in highly intimate and sensitive positions of responsi-
bility on the staff of an elected official.'" Brewster v. Barnes, 788
F.2d 985, 990 (4th Cir. 1986) (quoting Curl, 740 F.2d at 1328 (quot-
ing Owens v. Rush, 654 F.2d 1370, 1375 (10th Cir. 1981)).4 Three
times we have applied the personal staff exemption in cases involving
sheriffs' offices. United States v. Gregory, 818 F.2d 1114 (4th Cir.),
cert. denied, 484 U.S. 847 (1987); Curl, 740 F.2d 1323; Brewster,
788 F.2d 985. In each of these cases we were "unwilling to treat all
deputy sheriffs as employees, or to exclude them wholesale from [the
statute's] protection." Curl, 740 F.2d at 1328. Instead, we explained
that whether a given deputy would be treated as a member of a sher-
iff's personal staff depended on a "careful examination of the nature
and circumstances of her role in the Sheriff's Department." Id.; see
Brewster, 788 F.2d at 990; Gregory, 818 F.2d at 1117.
In concluding that Cromer was "personal staff" as both captain and
lieutenant, the district court said it applied the following "four pri-
mary factors" this court "has considered":
1. Is promotion of the employee solely up to the sheriff;
2. Does the employee occupy a position high in the chain
of command;
3. Does the employee have a highly intimate working rela-
tionship with the sheriff; and
4. Does the employee contribute to the making of policy
decisions in the sheriff's department?
_________________________________________________________________
4 Brewster involved the Equal Pay Act. However, the "definition of
`employee' in Title VII contains a `personal staff' exemption which is
essentially identical to the exemption contained in the Equal Pay Act."
Brewster, 788 F.2d at 990 n.7. Therefore, Brewster's reasoning applies
here.
12
Cromer v. Brown, C/A No. 6:92-3555-20AK, mem. op. at 4 (D.S.C.
Feb. 28, 1994).
We have considered the factors listed by the district court, but we
have never characterized them as "primary." Indeed, we have often
considered factors left off the district court's list. We have, for exam-
ple, always emphasized that the "personal staff" exemption is to be
narrowly construed. Gregory, 818 F.2d at 1117; Brewster, 788 F.2d
at 990; Curl, 740 F.2d at 1328. We have asked whether the employ-
ee's position "was created and compensated by the county pursuant
to state law."5 Gregory, 818 F.2d at 1117; see Curl, 740 F.2d at 1328.
We have inquired about the full scope of the employee's duties, with-
out limiting the inquiry to whether he is a policy maker. Curl, 740
F.2d at 1328; Brewster, 788 F.2d at 991. We have explored whether
the employee worked in the official's political campaign. Brewster,
788 F.2d at 990. And we have considered it significant whether the
employee worked under the direction of the official or someone else.
Curl, 740 F.2d at 1328.
The factors we have added to those mentioned by the district court
are not intended to round out a rigid list. A fact-specific examination
of the employee's role is what is required. In general, the examination
should focus on whether the employee worked in an intimate and sen-
sitive position of trust, close to the elected official.
When Cromer was a lieutenant, the undisputed facts make it clear
that Cromer was not a member of Sheriff Brown's personal staff.
First, Cromer did not report directly to the sheriff. He reported to his
captain, who in turn reported to the major, who reported directly to
the sheriff. Second, as a lieutenant, Cromer rarely saw Sheriff Brown
and did not work under the sheriff's personal direction. As a rule Cro-
mer saw the sheriff only at the monthly meetings of all supervisors,
including sergeants and lieutenants. At those meetings the sheriff
spoke only for a few minutes about very general matters.6 Third, as
_________________________________________________________________
5 This can be relevant because when a position is created and compen-
sated under state law, the elected official (the employer) is not required
to allocate funds from his discretionary budget to pay the employee's sal-
ary.
6 Although the record is not clear on the point, it appears that Sheriff
Brown may have attended at least one platoon meeting with Lieutenant
Cromer and those in Cromer's platoon.
13
a lieutenant, Cromer had no hand in creating, or even substantively
discussing, department policy. Fourth, Lieutenant Cromer was not a
member of the command staff. Fifth, Cromer's termination was
reviewed by the Grievance Board, which could have recommended
reinstatement.7 Sixth, Cromer apparently did not assist in any of Sher-
iff Brown's election efforts. Nor was Cromer initially hired as a dep-
uty by Brown. Brown's predecessor in office hired Cromer, and
Brown simply recommissioned Cromer as a deputy. Seventh, Cro-
mer's position was created and compensated pursuant to state law.
See S.C. Code Ann. § 23-13-10 et seq . Together, the undisputed facts
establish as a matter of law that Cromer was not a member of Sheriff
Brown's personal staff during his service as a lieutenant. We, there-
fore, reverse the district court on that issue.
Different facts establish, as a matter of law, that during his service
as captain Cromer was on Sheriff Brown's personal staff. First, there
were only four captains and all were members of the command staff.
Second, as a member of the command staff, Captain Cromer met
weekly with the sheriff, the major and the other three captains to dis-
cuss the substance and merits of proposed operations, policies and
procedures. In fact, Cromer himself acknowledged that as a captain
he exerted a "strong, effective voice" on department policy. Third,
Sheriff Brown personally promoted Cromer to captain and personally
demoted him. There is no suggestion that Cromer could have taken
his demotion from captain to the Grievance Board for review. And
finally, as a captain, Cromer occasionally dealt with citizens' com-
plaints and other public matters which required him to speak outside
the department on behalf of the sheriff. Together, these facts demon-
strate as a matter of law that when Cromer was a captain, he served
on Sheriff Brown's personal staff. Therefore, we affirm the district
court's ruling to that effect.
_________________________________________________________________
7 When a public official cedes exclusive authority to hire or discharge
an employee, the personal staff exclusion would not apply. In this case,
Sheriff Brown did not cede his exclusive authority, but he did permit the
Grievance Board to make a recommendation.
14
III.
We next consider Cromer's constitutional claims, brought under
§ 1983. Cromer asserts that his termination violated his First Amend-
ment rights to speak freely and to associate. The district court, how-
ever, determined that these asserted rights were not clearly established
in June of 1991, when Cromer was fired. Therefore, the district court
held that Sheriff Brown (in his individual capacity) was entitled to
immunity from these claims.
A.
The doctrine of qualified immunity would provide Sheriff Brown,
in his individual capacity, with a full defense to Cromer's § 1983
charges if Brown's conduct did not "violate clearly established statu-
tory or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The pur-
pose of the qualified immunity defense under § 1983 is to allow gov-
ernment officials "the freedom to exercise fair judgment" without
"being blindsided by liability derived from newly invented rights or
new, unforeseen applications of pre-existing rights." Pinder v.
Johnson, 54 F.3d 1169, 1173 (4th Cir.) (en banc), cert. denied, 116
S. Ct. 530 (1995).
As we observed in Pinder:
The linchpin of qualified immunity is objective reasonable-
ness. So long as the officer's actions, viewed from the per-
spective of the officer at the time, can be seen within the
range of reasonableness, then no liability will attach.
Important to this reasonableness inquiry is whether the
rights alleged to have been violated were clearly established
at the time of the challenged actions.
If the law supporting the allegedly violated rights was not
clearly established, then immunity must lie. Where the law
is clearly established, and where no reasonable officer could
15
believe he was acting in accordance with it, qualified immu-
nity will not attach.
Id. (internal citations omitted).
The right allegedly violated must be articulated in a "particular-
ized" and "relevant" way. Anderson v. Creighton, 483 U.S. 635, 640
(1987). A plaintiff may not merely assert the violation of some "over-
arching entitlement" to a named right. Pinder , 54 F.3d at 1173.
Instead, he must be sufficiently specific to allow us to decide whether
"a reasonable official would understand that what he [did] violates
that right." Anderson, 483 U.S. at 640. But "[i]t is important not to be
overspecific -- there need not be a prior case directly on all fours
with the facts presented to the official." Pinder, 54 F.3d at 1173. Still,
we must be able to conclude that, in light of pre-existing law, the
unlawfulness of the challenged action was apparent to the official.
Anderson, 483 U.S. at 640; Pinder, 54 F.3d at 1173.
1.
Cromer's first allegation is that Sheriff Brown violated his right to
speak freely on matters of public concern by firing him for joining in
the Association's letter that raised specific charges of racial discrimi-
nation and animus in the sheriff's office.
At the time of Cromer's discharge in June 1991, it was established
that a government official "may not discharge an employee on a basis
that infringes that employee's constitutionally protected interest in
freedom of speech." Rankin v. McPherson, 483 U.S. 378, 383 (1987)
(citing Perry v. Sindermann, 408 U.S. 593, 597 (1972)) (emphasis
added). To determine whether a public employee's speech was consti-
tutionally protected, we undertake a two-step analysis. First, we ask
whether the employee spoke as a citizen on a matter of "public con-
cern." Connick v. Myers, 461 U.S. 138, 146 (1983). If he did, the next
step requires "balanc[ing] the interests of the [employee], as a citizen,
in commenting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the public ser-
vices it performs through its employees." Pickering v. Board of Educ.,
391 U.S. 563, 568 (1968). If these two steps yield a right that was
clearly established in 1991, we "proceed to determine whether a rea-
16
sonable person in the official's position would have known that his
actions violated that right." DiMeglio v. Haines, 45 F.3d 790, 794-95
n.1 (4th Cir. 1995) (citing Harlow, 457 U.S. at 817-18).
a.
We decide whether Cromer spoke as a citizen on a matter of public
concern by examining the "content, form and context" of his speech.
Connick, 461 U.S. at 147-48.
We turn first to the content of Cromer's speech, the letter the black
officers' Association sent to Sheriff Brown. The theme of the letter
was that the "effectiveness of the [sheriff's office] as a Law Enforce-
ment Agency" was being destroyed by internal racial discrimination.
The seven-page letter included the following charges of discrimina-
tion by an "overall white [management] structure": (1) ineffective
minority recruitment efforts, (2) lack of opportunity for black officers
to cross-train in and transfer into prestigious units, such as white col-
lar and major crimes, (3) lack of promotional opportunities for blacks
and loss of faith in the promotion process, (4) methods of investiga-
tion by the all-white internal affairs unit that caused racial polariza-
tion, and (5) favoritism to white officers in the allocation of new
equipment. Because these specific complaints prompted an expression
of concern about the inability of the sheriff's office to carry out its
vital public mission effectively, we conclude that Cromer and the
other members of the Association spoke as citizens, not merely as
employees. See id. at 147. Of course, the allegations themselves,
about racial discrimination within a law enforcement agency, are mat-
ters of serious public import. Rode v. Dellarciprete, 845 F.2d 1195,
1201 (3d Cir. 1985) (holding that allegations of racial animus within
the state police raised a matter of "grave public concern"); Leonard
v. City of Columbus, 705 F.2d 1299, 1305 (11th Cir. 1983) (holding
that allegations of racially discriminatory hiring and distribution of
"beat" assignments raised "matters of interest to the community"),
cert. denied, 468 U.S. 1204 (1984). Cf. Connick, 461 U.S. at 146, 148
n.8 (characterizing allegations of a school district's "racially discrimi-
natory policies" as "a matter inherently of public concern").
Nothing in the form (private letter with no member of the Associa-
tion identified) or context (slipped under the sheriff's door) of the
17
speech deprives it of its public import. Public employees do not for-
feit the protection of the Constitution's Free Speech Clause merely
because they decide to express their views privately rather than pub-
licly. Givhan v. Western Line Consol. Sch. Dist. , 439 U.S. 410, 413-
14 (1979).
In any event, the sheriff considered the letter a group effort by
black officers, and indeed it was. Virtually all of the black officers in
the department participated in the Association. They discussed the
items covered in the letter at four meetings, and they sent the letter
as a body to voice their concerns about what they considered discrim-
ination. Thus, the letter was not the expression of a single disgruntled
employee about a personal employment dispute. See Connick, 461
U.S. at 148 (noting, in reversed circumstances, that the communica-
tion at issue "if released to the public would convey no information
at all other than the fact that a single employee is upset with the status
quo"). Instead, the letter here was delivered in the context or circum-
stance of a group complaint, and that further demonstrates the public
import of the speech. Collins v. Robinson, 568 F. Supp. 1464, 1468
(E.D. Ark. 1983) (memorandum to sheriff for which sergeant was
fired involved matters of public concern because, among other things,
it expressed the complaints of numerous officers about the behavior
of a major), aff'd on the reasoning of the district court, 734 F.2d 1321
(8th Cir. 1984).
In sum, we hold that in 1991 it was clearly established that the
Association's letter, which Cromer adopted as his own speech,
involved a matter of public concern.
b.
Because Cromer's speech involved a matter of public concern, we
must now balance Cromer's interest as a citizen in commenting on
racial discrimination in a law enforcement agency against Sheriff
Brown's interest in maintaining an efficient workplace. Pickering,
391 U.S. at 568. Interests of the community also weigh in the balance.
Piver v. Pender County Bd. of Educ., 835 F.2d 1076, 1078 (4th Cir.
1987), cert. denied, 487 U.S. 1206 (1988) (noting that for speech to
be constitutionally protected, "the interests of the speaker and the
18
community in the speech [must] outweigh the interests of the
employer") (emphasis added).
We have recently noted that "only infrequently will it be `clearly
established' that a public employee's speech on a matter of public
concern is constitutionally protected, because the relevant inquiry
requires a `particularized balancing' that is subtle, difficult to apply
and not yet well-defined." DiMeglio, 45 F.3d at 806. But we did not
say that a public employee's right to speak on matters of public con-
cern could never be clearly established. We believe that Cromer's is
one of the "infrequent" cases where an employee's right to speak on
a matter of public concern was clearly established. 8
i.
We are persuaded that the interests to be balanced under Pickering
weighed so heavily in Cromer's favor that his right to speak about
perceived racial discrimination was clearly established in 1991.
We begin our balancing analysis by examining the interests to be
weighed on Cromer's side. We have already said that Cromer's
_________________________________________________________________
8 Other circuits have found First Amendment rights to be clearly estab-
lished in certain cases, even under Pickering 's balancing test. See, e.g.,
Kincade v. City of Blue Springs, 64 F.3d 389, 398-99 (8th Cir. 1995)
(city engineer voiced safety concerns regarding a construction project),
cert. denied, 116 S. Ct. 1565 (1996); Lambert v. Richard, 59 F.3d 134,
137 (9th Cir.) (plaintiff criticized library director's mismanagement),
cert. denied, 116 S. Ct. 673 (1995); Ramirez v. Oklahoma Dep't of Men-
tal Health, 41 F.3d 584, 593-95 (10th Cir. 1994) (plaintiffs complained
of mistreatment of a mental patient); Williams v. Kentucky, 24 F.3d 1526,
1537 (6th Cir.) (plaintiff reported employer's illegal activities), cert.
denied, 115 S. Ct. 358 (1995); Bieluch v. Sullivan, 999 F.2d 666, 673 (2d
Cir. 1993) (police officer headed groups which campaigned against a
school construction proposal and a proposed town budget), cert. denied,
114 S. Ct. 926 (1994); Gorman v. Robinson, 977 F.2d 350, 356 (7th Cir.
1992) (plaintiff informed FBI of his employer's wrongdoings); Stough v.
Gallagher, 967 F.2d 1523, 1528-29 (11th Cir. 1992) (captain spoke in
support of sheriff's political opponent); Brawner v. City of Richardson,
Tex., 855 F.2d 187, 191 (5th Cir. 1988) (police officer made serious alle-
gations of possible police misconduct).
19
speech (reporting widely-held views about racial discrimination in the
sheriff's office) involved a matter of grave public concern. Indeed,
"speech on public issues occupies the `highest rung of the hierarchy
of First Amendment values.'" Connick, 461 U.S. at 145 (citation
omitted).
We emphasize that this is not a "run-of-the-mine single plaintiff
discrimination case." See Auriemma v. Rice , 910 F.2d 1449, 1460 (7th
Cir. 1990) (en banc), cert. denied 501 U.S. 1204 (1991). Although
Cromer is the only plaintiff, the speech he adopted is a letter sent by
a group of most of the 32 black officers who worked for Sheriff
Brown. Cromer's speech, therefore, had the potential for "broad
impact," id., because public safety was put at risk by the group per-
ception that black officers were discriminated against. In other words,
the effectiveness of a major law enforcement agency was being called
into question by a significant number of its members. The public has
a fundamental interest in effective law enforcement organizations that
are free of discrimination. Cromer's individual interests, then, merge
in a real sense with those of the community at large. Those merged
interests are substantial. "For a police force to be effective it must
have the respect and support of the community as well as its officers;
our system of government demands that support be garnered through
informed evaluation of circumstance, and not through the suppression
of dissent." Leonard, 705 F.2d at 1305. Accordingly, the public has
a keen interest in seeing that police officers are free to speak up about
any broad-based discrimination in their agencies. After all,
"[g]overnment employees are often in the best position to know what
ails the agencies for which they work; public debate may gain much
from their informed opinions." Waters v. Churchill, 114 S. Ct. 1878,
1887 (1994). These interests weigh heavily in Cromer's favor.
We now weigh the interests of Sheriff Brown, "as an employer, in
promoting the efficiency of the public services[the sheriff's office]
performs through its employees." See Pickering, 391 U.S. at 568. In
weighing the sheriff's interests, we bear in mind that when the
employer runs a law enforcement organization where"discipline is
demanded," he has "greater latitude . . . in dealing with dissension in
[the] ranks." Maciariello v. Sumner, 973 F.2d 295, 300 (4th Cir.
1992), cert. denied, 506 U.S. 1080 (1993).
20
Here, Sheriff Brown maintains that Cromer's speech carried the
potential for disrupting efficiency because it cut against discipline,
morale and good working relationships in the department. We exam-
ine the extent to which Cromer's speech undermined these interests.
We look preliminarily at Cromer's position and status when he
engaged in the speech. Sheriff Brown charges that Cromer endorsed
the grievances presented by the black officers' group and "did nothing
to diffuse the tense racial situation presented by the formation of
[that] group." Brief of Appellees at 23. The sheriff says that he looked
to Cromer to maintain good race relations in the department. Thus,
the sheriff maintains that Cromer could (and should) have spoken up
at the black officers' meetings and allayed the concerns expressed by
the Association. This might well be an accurate representation of
what the sheriff expected of Cromer when he was a captain, but it sig-
nificantly overstates Cromer's responsibility and influence after he
was demoted from the command staff to lieutenant.
Sheriff Brown testified that he demoted Cromer because he had
"lost his ability and his effectiveness as commander of the uniform
patrol" by supervising through use of intimidation and retaliation.
According to the sheriff, Cromer had lost the respect of the lieuten-
ants and sergeants he supervised. Cromer, for his part, believed he
was demoted for racial reasons. After his demotion Cromer rarely saw
the sheriff and did not participate in policymaking. Under these cir-
cumstances it is not plausible that Sheriff Brown would have looked
solely to the demoted Cromer to foster racial harmony. Nor could the
sheriff have expected the demoted Cromer to argue that the depart-
ment was free of racial discrimination, nor expected other black offi-
cers to follow Cromer if he had said the charges in the letter were
groundless.
Nevertheless, Cromer was a lieutenant, and we must weigh how
much his speech worked against the efficiency interests asserted by
the sheriff: discipline, morale and good working relationships.
As to discipline, the sheriff says that "Cromer never followed the
chain of command in presenting the [black] officers' grievances."
Brief of Appellees at 24. "Rather, he attended clandestine meetings
and endorsed the sending of an anonymous letter." Id. According to
21
Sheriff Brown, by not presenting the grievances in person to a supe-
rior, Cromer undermined the authority of the command staff and the
sheriff. The sheriff maintains that this lack of discipline made Cromer
an "antagonist[ ]" who had to be "eradicate[d]." See id. at 26.
Sheriff Brown did have an interest in seeing that any grievance was
channeled up through the chain of command under the name of the
officer receiving it (or sending it along). Yet that interest in good dis-
cipline must in turn be measured against what happened here. The
black officers did not make their allegations of discrimination public.
Instead, the letter was given only to Sheriff Brown, so that any devia-
tion from good order and discipline was known only to him and the
members of the Association. The letter was not insubordinate or
rebellious in tone, and there was no public display of disobedience or
protest. Moreover, although the letter was anonymous in the sense
that no one signed it, it was clear that virtually all black officers were
behind it. And it goes without saying that Sheriff Brown knew who
the black officers were.
To sum up on the discipline interest: we give some weight to Sher-
iff Brown on this point. We do not, however, give him any great
weight because the black officers moved quietly and did not try to
provoke a public confrontation.
On morale, Sheriff Brown says that Cromer harmed morale by
joining in a letter containing grievances that Cromer knew were
groundless. We recognize the importance of good morale in a law
enforcement organization. Yet here we do not see how Cromer's par-
ticipation in the speech could have done much to lower the morale of
black officers. The fact that meetings were held and the letter was
written indicates that their morale was already low. Moreover, when
we consider how the demoted Cromer was regarded (according to the
sheriff, Cromer had lost the ability to lead and lost the respect of the
officers he had supervised as captain), we do not see how Cromer
could have done much to lift morale even if he had spoken up in
defense of the sheriff. We give Sheriff Brown very little weight on the
interest in good morale.
We turn last to the sheriff's interest in maintaining good working
relationships. Specifically, Sheriff Brown says that his close working
22
relationship with Cromer was destroyed when Cromer endorsed the
Association's letter. When Cromer was one of four captains on the
six-person command staff, we have no doubt that the sheriff and Cro-
mer had a close working relationship. That relationship ended, how-
ever, when Cromer was demoted. After his demotion Cromer did not
work directly with the sheriff and rarely saw him. We give no weight
to the sheriff on this point.
As we stand back and look, the scales weigh heavily in Cromer's
favor. His interest in speaking about the widespread (internal) percep-
tion of racial discrimination in a law enforcement agency must be
given great weight. And the community at large shares in that interest.
We have, of course, taken care to weigh the efficiency interests
advanced by the sheriff -- discipline, morale and good working rela-
tionships. Given Cromer's demotion and diminished status, however,
his speech had little or no impact on those interests, and we therefore
accord them little or no weight in this case. The balancing test clearly
establishes that Cromer's speech was protected.
ii.
Our conclusion is buttressed by the fact that, at the time Sheriff
Brown fired Cromer, existing decisions in our sister circuits had given
First Amendment protection to speech like Cromer's, that is, a police
officer's expressions of concern about racial discrimination and ani-
mus in his agency.9
The most strikingly similar prior case is Leonard v. City of
Columbus, 705 F.2d 1299 (11th Cir. 1983), cert. denied, 468 U.S.
1204 (1984). Leonard involved members of the Columbus, Georgia,
police department who in 1971 formed the Afro-American Patrol-
men's League. The officers formed the League as a vehicle to criti-
cize department practices which they viewed as discriminatory. In
particular, the League's members complained that black officers were
being discriminated against in hiring and promotion, shift assignment,
_________________________________________________________________
9 In deciding whether Cromer is asserting a clearly established right, we
may examine the pre-existing law outside this circuit. See Pinder, 54
F.3d at 1176-1178 (canvassing decisions outside the Fourth Circuit in a
qualified immunity case).
23
and discipline and alleged that black citizens were subjected to police
brutality. League members initially complained to the city's Board of
Public Safety, but members felt that this resulted in no progress.
Thereafter, the League issued a press release and held a press confer-
ence to publicize its criticism of the police department. Three days
after the press conference a black officer, who had called in sick, was
disciplined with the extraordinary measure of arrest for contempt of
court for missing a scheduled court appearance. League members
responded with two days of peaceful picketing at the police station.
On the second day of the protest, the Deputy Chief of Police started
suspension proceedings against three policemen who were League
officials. On the third day, with the press present, seven picketing
black officers assisted one another in removing the American flag
emblem from the sleeves of their uniforms. Later that day, the Chief
of Police held a press conference to announce the firing of all protest-
ing officers. The chief publicly accused the officers of making "base-
less allegations of unlawful conduct, racism, and discrimination." Id.
at 1301. The fired officers sued, and the district court determined that
their dismissal did not violate the First Amendment. But on appeal the
Eleventh Circuit determined that the protesting officers' speech was
protected under Pickering's balancing test. Id. at 1304-06.
Cromer's case is indistinguishable from Leonard in several rele-
vant respects. First, like the officers in Leonard, Cromer spoke
through an association of black officers formed in response to per-
ceived racism in their law enforcement agency. Second, the majority
of the complaints voiced by Cromer's Association were identical to
those made by the League in Leonard. Cromer's Association alleged
discrimination against black officers in recruitment, promotion, cross-
training and transfer, and equipment. The League in Leonard alleged
discrimination in hiring and promotion, shift assignment and disci-
pline. Finally, the reaction of the sheriff in Cromer's case was the
same as that of the police chief in Leonard: both officials felt that the
allegations of the black officers were baseless and fired those they
regarded as the main culprits.10
_________________________________________________________________
10 The cases do differ as to the methods used by the officers to convey
their speech. The officers in Leonard, after an initial effort to deal with
the Board of Public Safety, resorted to press conferences, picket lines
24
Leonard, on facts quite similar to Cromer's, recognized that the
fired officers had "sought [through their speech] to emphasize a
widely-held perception of racially discriminatory practices in the City
of Columbus Police force." Id. at 1305. This speech, about a matter
"vital to the public interest," deserved constitutional protection. Id. at
1304-05. And Leonard bluntly warned officials not to try to suppress
such speech:
For a police force to be effective it must have the respect
and support of the community as well as its officers; our
system of government demands that support be garnered
through informed evaluation of circumstance, and not
through the suppression of dissent . . . . [A] police officer
does not receive a "watered-down version" of constitution-
ally protected rights by virtue of his employment on the
police force.
Id. at 1305 (citations omitted).
In addition to Leonard, other decisions in our sister circuits made
plain that the First Amendment does not allow state officials to take
adverse employment action against an employee who speaks out
about the practice of racial discrimination in a law enforcement
agency. See Rode, 845 F.2d 1195 (First Amendment protected state
police civilian employee whose speech involved a matter of grave
public concern, racial animus within state police); Auriemma, 910
F.2d 1449 (First Amendment protected white officers' right to com-
plain in federal court about alleged racial discrimination in depart-
ment reorganization); see also Bridgeport Guardians, Inc. v.
Delmonte, 553 F. Supp. 601 (D. Conn. 1982) (enjoining police
department from taking adverse employment actions against members
_________________________________________________________________
and symbolic acts of disobedience. In Cromer's case the officers com-
plained privately. Thus, the speech of the officers in Leonard was far
more detrimental than was Cromer's to the state's interest in discipline
or efficiency. Yet the court of appeals in Leonard concluded that the dis-
obedient speech in that case was protected under the Pickering balancing
test.
25
of police officers' organization opposing racially discriminatory prac-
tices of department).
Leonard and the similar authority that existed at the time of Cro-
mer's termination bolster our holding that Cromer's First Amendment
right to voice his concern about racial discrimination in his law
enforcement agency was clearly established in June of 1991.11
c.
At this point in the analysis, all that remains is Harlow's reason-
ableness inquiry. Harlow, 457 U.S. at 818 (immunity shields officials
"insofar as their conduct does not violate clearly established rights of
which a reasonable person would have known"). We ask whether an
objectively reasonable official in Sheriff Brown's position would
have known that he could not fire Cromer for participating in the
Association's complaint about racial discrimination in the workplace.
Pinder, 54 F.3d at 1173. "If the law was clearly established, the
immunity defense ordinarily should fail, since a reasonably competent
_________________________________________________________________
11 We pause to point out that our holding is a narrow one. It is the infre-
quent Connick claim that will survive a qualified immunity defense. See
DiMeglio, 45 F.3d at 806. Thus, we are not holding that any time a pub-
lic official fires or otherwise disciplines an employee who has com-
plained of discrimination, the official has to go to trial. Rather, this is the
infrequent case where, after the Pickering balancing, the employee had
the right to speak as a citizen about extensive and specific claims of
racial discrimination. This case is quite different from one where "a pub-
lic employee speaks not as a citizen upon matters of public concern, but
instead as an employee upon matters only of personal interest." Connick,
138 U.S. at 147. Here, Cromer joined about thirty other black officers to
complain that the effectiveness of the sheriff's office as a law enforce-
ment agency was being jeopardized by the following examples of racial
discrimination: ineffective minority recruitment, lack of opportunity for
black officers to work in prestigious units, lack of promotional opportu-
nities for black officers, internal investigation practices that pitted white
officers against black officers, and favoritism to white officers in the
allocation of new equipment. These charges were specific enough and
serious enough to give the community at large an interest in the matter.
And they were presented in a non-confrontational way that did not appre-
ciably affect the sheriff's efficiency interests.
26
public official should know the law governing his conduct." Harlow,
457 U.S. at 800. Accord DiMeglio, 45 F.3d at 794-95 n.1.
Because the Pickering balancing test tips decidedly in Cromer's
favor and because caselaw had confirmed his right to speak, we hold
that any reasonable official in Sheriff Brown's shoes would have real-
ized he would violate the Constitution if he fired Cromer for speaking
of widely held concerns about racial discrimination in the sheriff's
office. Accordingly, we reverse the district court's ruling that Sheriff
Brown was entitled to qualified immunity with respect to Cromer's
free speech claim.
2.
Cromer's second constitutional claim is that Sheriff Brown violated
his right of association by firing him for participating in the black
officers' Association. Again, Sheriff Brown defends himself on
grounds that Cromer's associational rights were not clearly estab-
lished in June of 1991. The parties and the court below treated the
association and speech claims as inseparable. That approach is logical
in this case because the Association existed solely to convey the black
officers' complaints about racial discrimination.
The right to associate in order to express one's views is "insepara-
ble" from the right to speak freely. Thomas v. Collins, 323 U.S. 516,
530 (1945); Shelton v. Tucker, 364 U.S. 479, 486 (1960) (the "right
of free association [is] a right closely allied to freedom of speech and
a right which, like free speech, lies at the foundation of a free soci-
ety"). The Supreme Court has explained that:
An individual's freedom to speak, to worship, and to peti-
tion the Government for the redress of grievances could not
be vigorously protected from interference by the State
unless a correlative freedom to engage in group effort
toward those ends were not also guaranteed . . . . Conse-
quently, we have long understood as implicit in the right to
engage in activities protected by the First Amendment a cor-
responding right to associate with others in pursuit of a wide
variety of political, social, economic, educational, religious,
and cultural ends.
27
Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984) (citations omitted).
Accordingly, since Cromer's personal right to speak about allegations
of racial discrimination within his agency was clearly established in
1991, we hold that his "correlative freedom to engage in group effort
toward those [same] ends" was likewise clearly established. Since
Cromer had the clear right to speak as part of the Association, he also
had a clear right to participate in the Association. See N.A.A.C.P. v.
Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) ("It is beyond
debate that freedom to engage in association for the advancement of
beliefs and ideas is an inseparable aspect of the`liberty' assured by
the Due Process Clause of the Fourteenth Amendment which
embraces freedom of speech."); Wilton v. Mayor and City Council of
Baltimore, 772 F.2d 88, 91 (4th Cir. 1985) (noting that the limitations
on a public employee's right to associate are "closely analogous" to
the limitations on his right to speak).
Given these principles, we find that any objectively reasonable per-
son in Sheriff Brown's shoes (in June of 1991) would have realized
that he would violate Cromer's constitutional rights if he fired him for
participating in the Association. See, e.g., Marshall v. Allen, 984 F.2d
787, 799 (7th Cir. 1993) (holding that, in 1988, it was clearly estab-
lished that freedom of association protected employee from being
fired for associating with co-workers who filed a civil rights action
against their agency).
We therefore reverse the district court's determination that Sheriff
Brown was entitled to qualified immunity from Cromer's free associ-
ation claim.
IV.
Last, we turn briefly to the district court's determination that Cro-
mer cannot pursue his § 1983 claims against Sheriff Brown in his
official capacity. The Eleventh Amendment bars suits in federal
courts for money damages against an "unconsenting State." Edelman
v. Jordan, 415 U.S. 651, 663 (1974). This immunity extends to
"arm[s] of the State," Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 280 (1977), including state agencies and state
officers acting in their official capacity. Gray v. Laws, 51 F.3d 426,
430 (4th Cir. 1995). The "largely, if not wholly, dispositive" factor in
28
determining whether an entity is properly characterized as an arm of
the state is whether the state treasury will be liable for the judgment.
Id. at 433; see also Bockes v. Fields, 999 F.2d 788, 790-91 (4th Cir.
1993), cert. denied, 114 S. Ct. 992 (1994). If the state's treasury will
not be affected by the judgment, we consider other factors, "chief
among which are whether the suit will jeopardize`the integrity
retained by [the] State in our federal system' and whether the state
possesses such control over the entity claiming Eleventh Amendment
immunity that it can legitimately be considered an`arm of the state.'"
Gray, 51 F.3d at 434 (quoting Hess v. Port Auth. Trans-Hudson
Corp., 115 S. Ct. 394, 400 (1994)) (internal citation omitted).
Judgments against the Greenville County Sheriff are paid by the
South Carolina State Insurance Reserve Fund. However, we are
unable to discern from the record in this case whether the state pays
any premiums on behalf of Greenville County. See Nelson v. Strawn,
897 F. Supp. 252, 257-58 (D.S.C. 1995) (noting the same difficulty
when presented with a similar question), aff'd in part, vacated in part
on other grounds, 78 F.3d 579 (1996). Compare Bockes, 999 F.2d at
790 (record demonstrated that state paid 80 percent of premiums on
behalf of the subscribing agencies). Thus, it is unclear whether the
state treasury would be partially liable for a judgment in this case.
However, we have considered the remaining factors relevant to the
immunity analysis and conclude that, in his official capacity, Sheriff
Brown is an arm of the state. See Gulledge v. Smart, 691 F. Supp. 947
(D.S.C. 1988) (holding that South Carolina sheriffs are state officials
for Eleventh Amendment purposes), aff'd mem., 878 F.2d 379 (4th
Cir. 1989). Thus, we affirm the district court's conclusion that, in his
capacity as a state official, Sheriff Brown is immune from suit under
§ 1983 for money damages.
However, to the extent Cromer sought injunctive relief (e.g., rein-
statement) against Sheriff Brown in his official capacity, the district
court should not have granted summary judgment to Sheriff Brown.
Eleventh Amendment immunity does not protect state officials in
their official capacities from § 1983 claims for injunctive relief. Will
v. Michigan Dep't of State Police, 491 U.S. 58, 71 n.10 (1989).
Therefore, we reverse the district court's dismissal of Cromer's
§ 1983 claims against Sheriff Brown in his official capacity insofar as
they request injunctive relief.
29
V.
For the foregoing reasons, we affirm in part, reverse in part, and
remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
30