Sean Smith v. Peter Gilchrist, III

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2503
SEAN P. SMITH,
Plaintiff - Appellant,
v.
PETER S. GILCHRIST, III,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:10-cv-00636-RJC-DLH)
Argued: March 18, 2014 Decided: May 14, 2014
Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS,
Senior Circuit Judge.
Reversed and remanded by published opinion. Chief Judge Traxler
wrote the opinion, in which Judge Duncan and Senior Judge Davis
joined.
ARGUED: Matthew Robert Arnold, James Bradley Smith, ARNOLD &
SMITH, PLLC, Charlotte, North Carolina, for Appellant. Grady L.
Balentine, Jr., NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee. ON BRIEF: Roy Cooper, Attorney
General, Kathryn H. Shields, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee.
TRAXLER, Chief Judge:
Sean P. Smith appeals a district court order granting
summary judgment against him in his § 1983 action alleging that
he was fired for exercising his free-speech rights in violation
of the United States and North Carolina Constitutions.
Concluding that the district court erred in granting summary
judgment, we reverse and remand for trial.
I.
Smith was employed as an assistant district attorney
(“ADA”) for the Mecklenburg County, North Carolina, District
Attorney’s office (the “DA’s office”) from 2004 through July
2010. In his last several years with the DA’s office, he worked
on the crimes-against-persons team. Peter Gilchrist was the
elected district attorney (“DA”) during Smith’s tenure.
In February 2010, Smith met with Gilchrist to notify him of
his intention to declare his candidacy for the office of
Mecklenburg County district court judge. Gilchrist initially
told Smith that to run for the office he would need either to
resign from his position as ADA or take an unpaid leave of
absence until the November election. However, Smith later
brought to Gilchrist’s attention the existence of North Carolina
General Statute § 126-13(b), which Smith interpreted as
entitling him to run without resigning from his position as an
ADA. As a result, Gilchrist reconsidered and informed Smith
2
that he could run for judge without resigning or taking a leave
of absence. Smith subsequently formalized his candidacy.
A few months later, on his own time and at his own expense,
Smith attended a four-hour defensive-driving course in Charlotte
that the nonprofit Safety and Health Council of North Carolina
(“SHC”) offered to ticketed drivers. 1 According to Smith,
ticketed drivers would receive a pamphlet about the course from
the ticketing police officer. Drivers who took the course were
required to pay court costs and pay $60 to the driving school,
but they received a “prayer for judgment continued” (“PJC”) and
were not assessed a fine. 2 This program substantially reduced
the number of cases that the DA’s office and the courts were
required to handle, freeing up resources that could be used for
other matters.
1
SHC is a 501(c)(3) entity independent from the DA’s
office. See 26 U.S.C. § 501(c)(3).
2
“Under North Carolina law, ‘prayer for judgment continued’
is one of several ways in which a court may direct that judgment
be handled following a conviction by verdict or guilty plea.”
Evans v. UDR, Inc., 644 F. Supp. 2d 675, 687 n.3 (E.D.N.C.
2009). “The term refers specifically to deferral of court
action on the state’s request for entry of judgment, the final
order in a case which would include the sentence being imposed
on the defendant.” Id. A PJC for a moving traffic violation
will not result in an increase in a driver’s insurance premium
unless the driver or someone in his household has received a PJC
for a moving traffic violation in the prior three years. See
N.C.G.S. § 58-36-75(f). A PJC will also not result in points on
the driver’s driving record so long as the driver has not
received two other PJCs during the preceding five years. See
N.C.G.S. § 20-4.01(4a)(a)(4).
3
On Friday, July 9, 2010, Smith gave an on-camera interview
to the Charlotte FOX television affiliate detailing concerns he
had about the defensive-driving course. Smith gave the
interview as a part of his judicial campaign, and it was not
related to his responsibilities as an ADA in the crimes-against-
persons team, which did not include anything “related to traffic
court.” J.A. 131. The following Wednesday, Gilchrist, having
been contacted by the interviewer for a reaction to the
criticism by one of his ADAs regarding the course, called Smith
to ask if he had given the interview. When Smith said he had,
Gilchrist asked him to come to his office immediately. Smith
then met with Gilchrist and Deputy DA Bart Menser in Gilchrist’s
office, whereupon the three engaged in a brief conversation.
Gilchrist had not seen the interview. Rather, Smith’s
description of the interview during this meeting was the sole
basis for Gilchrist’s knowledge of what Smith had said. Smith
told Gilchrist that he gave the interview as part of his
campaign for judge, and according to Gilchrist, Smith voiced
three concerns: first, that the students of the course were not
paying attention; second, that law enforcement officers were
giving legal advice to ticketed drivers regarding whether they
should take the course; and third, that some drivers who decided
to take the course and receive PJCs were harming themselves by
losing the option to obtain a PJC for a future citation.
4
Gilchrist testified that none of these concerns “had to do with
Mecklenburg County District Attorney policy.” J.A. 126; see
also J.A. 128 (Gilchrist’s testimony that Smith in the interview
“did not criticize any of [Gilchrist’s] policies.”).
In addition to discussing what Smith had said during the
interview, Smith, Gilchrist, and Menser also discussed Smith’s
views generally regarding the defensive-driving program.
According to Menser, Smith explained to Gilchrist and Menser
that Smith “had issues with the driving school and with the fact
that the District Attorney’s Office was involved in recommending
that people go to the driving school.” J.A. 148. Menser
testified that Smith told Gilchrist and Menser that Smith
“didn’t think the driving school was a good idea.” J.A. 148.
At the end of the conversation, Menser asked Smith if there
were any other policies of the DA’s office with which he
disagreed. 3 Gilchrist testified that Smith said that there were,
but when Smith was asked to identify the specific policies,
Smith said, “I decline to answer.” J.A. 60 (internal quotation
marks omitted). The following day, Gilchrist terminated Smith’s
employment. He did not provide Smith with any reason for the
termination. He testified, however, that Smith’s refusal to
identify the DA’s office policies with which he disagreed was
3
Gilchrist testified that Smith was not “involved in
formulating any . . . office policies.” J.A. 77.
5
the sole reason he was terminated. Gilchrist testified that he
considered that refusal to be “insubordinate.” J.A. 60.
Smith subsequently brought an action in federal district
court seeking money damages against Gilchrist in his individual
capacity. See 42 U.S.C. § 1983. Smith alleged that the
statements he made during the television interview were a
substantial motivation for Gilchrist’s decision to fire him and
that the firing violated his free-speech rights under the United
States and North Carolina constitutions. In his answer to the
complaint, as is relevant here, Gilchrist denied firing Smith
for making the statements during the interview, and he asserted
public-official and qualified immunity.
Following discovery, Gilchrist moved for summary judgment,
arguing only that Smith had failed to forecast evidence creating
a genuine issue regarding whether the interview was a
substantial motivation for Gilchrist’s decision to fire Smith.
After Smith filed a response challenging the asserted lack of
evidence, and Gilchrist filed a reply, the district court sua
sponte requested that the parties brief an issue not previously
argued by Gilchrist – whether qualified immunity provided an
absolute defense to Smith’s claims. 4 In response to the district
4
We recognize that Gilchrist did not argue he was entitled
to qualified immunity in his motion for summary judgment and
(Continued)
6
court’s direction, Gilchrist again focused on the asserted lack
of evidence that Smith’s public statements were a substantial
motivation for his firing. Gilchrist agreed that “[i]t is
uncontested that [Smith] was speaking as a citizen on a matter
of public concern, and there are no relevant facts to challenge
finding that [Smith’s] interest in speaking outweighed the
government’s interest in providing effective and efficient
services to the public.” J.A. 296. Nevertheless, Gilchrist
presented the argument that even assuming Smith had created a
jury issue regarding causation, Gilchrist was entitled to
qualified immunity based on the subtlety of the test for
determining whether an employee’s interest in speaking as a
private citizen on a matter of public concern is outweighed by
the employer’s interest in efficiency. See DiMeglio v. Haines,
45 F.3d 790, 806 (4th Cir. 1995) (“[O]nly 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.” (internal
quotation marks omitted)). Gilchrist contended that because
Smith’s “interview criticized the policies of the office for
that he advanced it only in response to the direction by the
district court.
7
which he worked,” a reasonable official in the DA’s position
might have believed he was constitutionally justified in firing
Smith for making the statements. J.A. 299. In Smith’s
supplemental brief, as is relevant here, Smith noted that
Gilchrist had conceded that the statements were protected, and
Smith repeated his view that there was a genuine factual issue
regarding Gilchrist’s motivation for firing him.
The district court then granted summary judgment to
Gilchrist. See Smith v. Gilchrist, No. 3:10-cv-636-RJC-DLH,
2012 WL 5985487 (W.D.N.C. Nov. 28, 2012). In so doing, the
court assumed that Smith had created a jury issue regarding
whether his constitutional rights had been violated, but
concluded that Gilchrist was entitled to qualified immunity
because a reasonable official in Gilchrist’s position could have
believed that the interest of the DA’s office as employer in
suppressing Smith’s speech outweighed Smith’s interest in
speaking as a citizen on a matter of public concern. See id. at
*9-11. The court concluded that the same reasons entitled
Gilchrist to public-official immunity on the state-law claim.
See id. at *12.
II.
Smith first argues that the district court erred in
granting summary judgment against him on his First Amendment
claim. We agree.
8
“We review a district court’s decision to grant summary
judgment de novo, applying the same legal standards as the
district court and viewing all facts and reasonable inferences
therefrom in the light most favorable to the nonmoving party.”
T–Mobile Ne. LLC v. City Council of Newport News, 674 F.3d 380,
384–85 (4th Cir. 2012) (internal quotation marks omitted).
Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
“The doctrine of qualified immunity protects government
officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Stanton v. Sims, 134 S. Ct. 3, 4 (2013) (per curiam)
(internal quotation marks omitted). Thus, “in gray areas, where
the law is unsettled or murky, qualified immunity affords
protection to a government official who takes an action that is
not clearly forbidden—even if the action is later deemed
wrongful.” Occupy Columbia v. Haley, 738 F.3d 107, 118 (4th
Cir. 2013) (alteration and internal quotation marks omitted).
“We do not require a case directly on point” in order to
conclude that the law was clearly established, “but existing
precedent must have placed the statutory or constitutional
9
question beyond debate.” Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2083 (2011).
To survive a claim of qualified immunity, a plaintiff must
satisfy the following two-prong test: “(1) the allegations
underlying the claim, if true, substantiate [a] violation of a
federal statutory or constitutional right; and (2) this
violation was of a clearly established right of which a
reasonable person would have known.” Ridpath v. Board of
Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006)
(internal quotation marks omitted). The Supreme Court has
observed that the outcome of the “clearly established” test
“depends largely upon the level of generality at which the
relevant legal rule is to be identified.” Wilson v. Layne, 526
U.S. 603, 614 (1999) (internal quotation marks omitted). For
that reason, “the right allegedly violated must be defined at
the appropriate level of specificity before a court can
determine if it was clearly established.” Id. at 615.
Here, Smith has alleged a violation of his First Amendment
rights to free speech. The First Amendment to the United States
Constitution, in relevant part, provides that “Congress shall
make no law . . . abridging the freedom of speech.” U.S. Const.
amend. I. The Fourteenth Amendment makes this prohibition
applicable to the states. See Fisher v. King, 232 F.3d 391, 396
(4th Cir. 2000). Not only does the First Amendment protect
10
freedom of speech, it also protects “the right to be free from
retaliation by a public official for the exercise of that
right.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th
Cir. 2000). “Protection of the public interest in having debate
on matters of public importance is at the heart of the First
Amendment.” McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998).
At the same time, the government, as an employer, “is entitled
to maintain discipline and ensure harmony as necessary to the
operation and mission of its agencies. And for this purpose,
the government has an interest in regulating the speech of its
employees.” Id. (citation omitted).
The Supreme Court in Connick v. Myers, 461 U.S. 138 (1983),
and Pickering v. Board of Education, 391 U.S. 563 (1968), has
explained how the rights of public employees to speak as private
citizens must be balanced against the interest of the government
in ensuring its effective and efficient operation. In light of
these competing interests, we have held that in order for an
adverse employment action to violate a public employee’s First
Amendment rights to freedom of speech, it must be the case (1)
that the employee “was speaking as a citizen upon a matter of
public concern” rather than “as an employee about a matter of
personal interest”; (2) that his “interest in speaking upon the
matter of public concern outweighed the government’s interest in
providing effective and efficient services to the public”; and
11
(3) that his “speech was a substantial factor” in the employer’s
decision to take action against him. McVey, 157 F.3d at 277–78.
This appeal concerns the second prong of the McVey test –
“whether the employee’s interest in speaking upon the matter of
public concern outweighed the government’s interest in providing
effective and efficient services to the public.” Id. at 277.
That Smith was speaking on matters of public concern during the
interview is clear and is not challenged by Gilchrist. See
Urofsky v. Gilmore, 216 F.3d 401, 406-07 (4th Cir. 2000) (en
banc) (“Speech involves a matter of public concern when it
involves an issue of social, political, or other interest to a
community.”). That ticketed drivers are not paying attention in
their defensive driving class is of obvious interest to the
community, see Goldstein v. Chestnut Ridge Volunteer Fire Co.,
218 F.3d 337, 353 (4th Cir. 2000) (explaining that statements
“relating to public safety are quintessential matters of ‘public
concern’”), as are the facts that police officers are improperly
providing legal advice, see Robinson v. Balog, 160 F.3d 183, 188
(4th Cir. 1998) (holding that speech exposing “actual or
potential wrongdoing” is speech on a matter of public concern
(internal quotation marks omitted)), and that some ticketed
drivers are unwittingly making decisions that are contrary to
their legal interests. Accordingly, Smith could not be fired
12
for making the statements he made unless his right to speak was
outweighed by his employer’s legitimate interests.
Regarding this balancing, the government bears the “burden
of justifying the discharge on legitimate grounds.” Rankin v.
McPherson, 483 U.S. 378, 388 (1987). The balancing test
requires us to consider the context in which the speech was
made, including the employee’s role and the extent to which the
speech impairs the efficiency of the workplace. See id. at 388–
91.
Factors relevant to this inquiry include whether a
public employee’s speech (1) impaired the maintenance
of discipline by supervisors; (2) impaired harmony
among coworkers; (3) damaged close personal
relationships; (4) impeded the performance of the
public employee’s duties; (5) interfered with the
operation of the [agency]; (6) undermined the mission
of the [agency]; (7) was communicated to the public or
to coworkers in private; (8) conflicted with the
responsibilities of the employee within the [agency];
and (9) abused the authority and public accountability
that the employee’s role entailed.
Ridpath, 447 F.3d at 317. In balancing the competing interests,
“we do not require the public employer to prove that the
employee’s speech actually disrupted efficiency, but only that
an adverse effect was ‘reasonably to be apprehended.’”
Maciariello v. Sumner, 973 F.2d 295, 300 (4th Cir. 1992)
(quoting Jurgensen v. Fairfax Cnty., 745 F.2d 868, 879 (4th Cir.
1984)). Whether the employee’s interest in speaking outweighs
13
the government’s interest is a question of law for the court.
See Joyner v. Lancaster, 815 F.2d 20, 23 (4th Cir. 1987).
Gilchrist conceded in the district court – with good reason
– that Smith had forecasted evidence sufficient to establish
that his interest in speaking outweighed the government’s. See
J.A. 296 (“[T]here are no relevant facts to challenge finding
that [Smith’s] interest in speaking outweighed the government’s
interest in providing effective and efficient services to the
public.”). Gilchrist, after all, had agreed in his deposition
that none of the concerns Smith expressed in the interview “had
to do with Mecklenburg County District Attorney Office policy” 5
or in any way impugned the authority or credibility of the DA’s
office, and Gilchrist had testified that he did not consider the
decision to give the interview to be disloyal to the DA’s
office. 6 J.A. 126. Indeed, there is no evidence that the
5
This factual concession is particularly noteworthy given
that Gilchrist’s assertion that the “interview criticized the
policies of the office for which [Smith] worked” was the sole
basis Gilchrist gave in response to the district court for his
contention that a reasonable official might not have known that
Smith’s speech was constitutionally protected. J.A. 299. In
this court, Gilchrist has subtly changed his argument,
contending that the uncertainty regarding whether the speech was
protected was due to the fact that the “interview criticized a
program which directly impacted the office for which [Smith]
worked.” Appellee’s Brief at 21.
6
Certain public employees’ positions’ functions are such
“that party affiliation or political allegiance is an
appropriate requirement for the effective performance of the
(Continued)
14
concerns expressed during the interview even pertained to
circumstances within Gilchrist’s control. The concerns related
to the goings-on in the SHC’s defensive-driving classroom,
improper legal advice by police officers, and ticketed drivers
making decisions that were not in their legal best interests. 7
public office involved.” Bland v. Roberts, 730 F.3d 368, 375
(4th Cir. 2013) (alteration and internal quotation marks
omitted). Such employees may be terminated for speech
constituting political disloyalty to their employers. See id.at 374-75 & n.5. Gilchrist does not argue that Smith’s position
fit into this exception or that there was any gray area on the
point that would entitle him to qualified immunity for firing
Smith.
7
Menser specifically testified that Smith never expressed
“any concern about the fact that the [DA’s] Office was referring
people to the driving school.” J.A. 169. In concluding that
Gilchrist was entitled to qualified immunity, the district court
noted testimony from Menser that Smith “stated that ‘he had
issues with the driving school and with the fact that the
District Attorney’s Office was involved in recommending that
people go to the driving school,” that Smith “‘disagreed with
the D.A.’s office policy to be part of the arrangement that
allowed individuals to go to the driving school and receive a
PJC,’” and that Smith “‘objected to the school, and . . . to
[the District Attorney’s Office’s] involvement in [it].’”
Smith, 2012 WL 5985487, at *10 (second and third alterations in
original). But the testimony the district court identified
concerned opinions that Smith had expressed in his July 14
meeting with Gilchrist and Menser, not statements that he
actually made during the television interview. See, e.g., J.A.
148 (Menser’s testimony that Smith “did tell us . . . that he
didn’t think the driving school was a good idea” (emphasis
added)); J.A. 181 (Menser’s testimony that he “understood
[Smith] to be telling us that he disagreed with the D.A.’s
office policy to be part of the arrangement that allowed
individuals to go to the driving school and receive a PJC” and
that Smith “objected to the school, and . . . to [the DA
office’s] involvement in [it]” (emphasis added)). Whether Smith
(Continued)
15
And, there was no evidence that Smith sought to place any blame
on Gilchrist during the interview for any of these actions.
There simply was no evidence that Smith’s public statements
would cause problems with harmony or discipline in the DA’s
office such that the efficiency of the office would be expected
to be adversely affected.
Nor was there any evidence that Gilchrist had any reason to
believe that Smith’s interview would negatively affect the
efficiency or effectiveness of the DA’s office. Gilchrist
testified that he felt, since the defensive driving program was
responsible for such a significant reduction of the DA’s
office’s caseload, that “any criticism of the [SHC] necessarily
impacted [the DA’s] office.” J.A. 100. But Gilchrist offered
no explanation of, or support for, his belief. This attempt to
connect what Smith said to the DA’s office is such a stretch as
to be entitled to no weight at all and leads us to agree with
Gilchrist’s initial assessment that no relevant facts exist from
the DA’s point of view to challenge Smith’s right to speak.
privately disagreed with the DA’s office policy concerning the
driving course is irrelevant to the issue of whether Gilchrist
could fire Smith for public statements that did not question
policies of the DA’s office.
16
It is true, of course, that Gilchrist believed that two of
the concerns Smith raised in the interview were invalid. 8
Nevertheless, it has been long established that such differences
of opinion cannot justify terminating the speaker, as Pickering
itself made clear.
In Pickering, a teacher was fired for a letter he sent to
the local newspaper that was critical of the way in which the
school board had handled past bond proposals and had allocated
financial resources between the schools’ educational and
athletic programs. See Pickering, 391 U.S. at 566. The letter
was also critical of the superintendent’s alleged attempts to
prevent teachers from opposing or criticizing the proposed bond
issue. See id. The Court explained that the possibility that
the letter would foment controversy and conflict did not justify
the teacher’s firing because there was no evidence that the
letter had that effect. See id. at 570. The Court also held
that the letter could not be found to be somehow “per se harmful
to the operation of the schools” because the criticism that too
8
In his deposition, Gilchrist did not dispute that students
were not paying attention during the driving course or that
police officers were giving legal advice to ticketed drivers.
He nevertheless opined that these concerns were invalid because
it is commonplace that students in many settings do not pay
attention in class and police officers’ giving legal advice is
simply “a reality.” J.A. 75. Gilchrist agreed that “there may
be substance to” Smith’s concern that some drivers were not
acting in their legal best interests by deciding to take the PJC
for the ticketed offenses. J.A. 130.
17
much money was being allocated to athletics merely “reflect[ed]
. . . a difference of opinion between [the teacher] and the
Board as to the preferable manner of operating the school
system, a difference of opinion that clearly concerns an issue
of general public interest.” Id. at 571. The Court noted
On such a question free and open debate is vital to
informed decision-making by the electorate. Teachers
are, as a class, the members of a community most
likely to have informed and definite opinions as to
how funds allotted to the operation of the schools
should be spent. Accordingly, it is essential that
they be able to speak out freely on such questions
without fear of retaliatory dismissal.
Id. at 571-72.
Similarly, in this case, the simple fact that Gilchrist may
have disagreed with Smith’s vision of how SHC should be running
its defensive driving course or whether police officers should
be giving legal advice to ticketed drivers is clearly not the
sort of consideration that could be weighed against Smith’s
interest in speaking as a citizen on matters of public concern.
See id. at 571 (“[T]he only way in which the Board could
conclude, absent any evidence of the actual effect of the
letter, that the statements contained therein were per se
detrimental to the interest of the schools was to equate the
Board members’ own interests with that of the schools.”); see
also Ridpath, 447 F.3d at 321 (holding employer was not entitled
to qualified immunity for terminating employee “for making
18
protected statements that [employer] did not like”). Calling
attention to a significant weakness in a course designed to
protect the public safety, alerting the public to improper legal
advice, and attempting to protect citizens from unwittingly
making legal decisions that are not in their best interests are
critical services that a DA’s office has no legitimate interest
in opposing. See Garcetti v. Ceballos, 547 U.S. 410, 419 (2006)
(“The [Supreme] Court has acknowledged the importance of
promoting the public’s interest in receiving the well-informed
views of government employees engaging in civic discussion.”);
Pickering, 391 U.S. at 572 (noting that “[t]eachers are . . .
the members of a community most likely to have informed and
definite opinions” concerning spending by schools).
In sum, Gilchrist certainly was correct to concede that
there were no relevant facts upon which he could base an
argument that Smith’s interest in speaking as a private citizen
on matters of public concern was outweighed by the government’s
interest in providing effective and efficient services to the
public. Thus, Smith satisfied the first qualified-immunity
prong by forecasting evidence sufficient to “substantiate [a]
violation of [his First Amendment] right” to freedom of speech.
Ridpath, 447 F.3d at 306 (internal quotation marks omitted).
Gilchrist argues to us, however, as he did to the district
court, that even assuming that Smith’s interests actually (and
19
completely) outweighed the government’s, he is nonetheless
entitled to qualified immunity because it would not have been
clear to a reasonable official in Gilchrist’s position that
Smith’s interests outweighed the government’s. See id.(explaining that to survive a qualified-immunity claim, a
plaintiff must demonstrate the “violation . . . of a clearly
established right of which a reasonable person would have known”
(internal quotation marks omitted)). In this regard, Gilchrist
emphasizes that balancing the government’s interests against the
employee’s is a subtle process. He also maintains that because
of the significant role that the defensive-driving course played
in reducing the DA’s office caseload and freeing resources for
other matters, a reasonable DA in his position could have
believed that any public criticism of that course undermined the
operation and mission of the DA’s office. Gilchrist contends
that, under this theory, a reasonable DA might have believed he
was justified in firing Smith for publicly making the statements
in question.
This argument need not detain us long. For purposes of
determining whether Smith’s right to speak without recrimination
was clearly established, we conclude that the right at issue,
described at the appropriate level of specificity, is as
follows: it is the right of an ADA running for public office
not to be fired for speaking publicly in his capacity as a
20
candidate on matters of public concern when the speech is
critical of a program that substantially reduces the DA’s
office’s caseload but there is no reason to believe the speech
will negatively impact the DA’s office’s efficiency.
Any reasonable official in Gilchrist’s position would have
been aware of that right on the day of Smith’s termination. 9 The
notion that programs that reduce a government agency’s workload
are somehow off limits from criticism by government employees
even when there is no reason to expect that the criticism will
actually hamper the government office’s efficiency finds no
basis whatsoever in the law. At the time of Smith’s firing, it
was well established that a government employee’s speech made as
a private citizen on a matter of public concern is balanced
against the adverse effect that the government reasonably
anticipates the speech will have on its ability to operate
efficiently. See Maciariello, 973 F.2d at 300. In this case,
there was no evidence forecasted in the summary judgment record
that Smith’s speech was expected to have any particular effect,
9
We emphasize that Gilchrist denies that he terminated
Smith because of what he said during the interview, and he has
never taken the position that he had the right to do so. In
fact, he acknowledged in his deposition that firing Smith for
his speech would have violated his constitutional rights. We
consider this acknowledgment in the context of determining the
legal issue before us. We offer no view today as to the merits
of Gilchrist’s contention that he did not fire Smith for his
speech, which remains an issue for trial.
21
as Gilchrist’s concession in the district court reflected.
Thus, although Gilchrist is certainly correct that the process
of balancing the employer’s interests against the employee’s is
a subtle one, the general complexity of the balancing test is of
no consequence in this case since there is nothing on the
employer’s side of the ledger to weigh. See Pickering, 391 U.S.
at 572-73 (holding that in a case “in which a teacher has made
erroneous public statements upon issues then currently the
subject of public attention, which are critical of his ultimate
employer but which are neither shown nor can be presumed to have
in any way either impeded the teacher’s proper performance of
his daily duties in the classroom or to have interfered with the
regular operation of the schools generally,” the government
failed to show that its interests outweighed the teacher’s
interest in speaking); cf. Goldstein, 218 F.3d at 356 (holding
that “generalized and unsubstantiated interests” “in maintaining
morale and efficiency within” the fire department did not
outweigh plaintiff’s speech interest); Daulton v. Affeldt, 678
F.2d 487, 491 (4th Cir. 1982) (concluding that speech did not
interfere with the operation of a college where the “disputes
did not . . . create any more disharmony than would be expected
when a subordinate criticizes her superiors on any subject”).
In sum, a reasonable DA in Gilchrist’s position would have
known that he could not fire an ADA running for public office
22
for speaking publicly in his capacity as a candidate on matters
of public concern when the speech is critical of a program that
substantially reduces the DA’s office’s caseload but there is no
reason to believe the speech will negatively impact the DA’s
office’s efficiency. We therefore hold that the district court
erred in granting summary judgment to Gilchrist on the First
Amendment claim on the basis of qualified immunity.
III.
Smith next argues that the district court also erred in
granting summary judgment against him on his North Carolina
constitutional claim. As we have mentioned, the district court
granted summary judgment on the North Carolina claim for the
same reason that it granted summary judgment on the federal
claim. See Smith, 2012 WL 5985487, at *12. Gilchrist
understandably does not argue that a separate ground exists for
affirming with regard to the state-law claim if summary judgment
was improperly granted on the federal claim. See Bailey v.
Kennedy, 349 F.3d 731, 742 n.6 (4th Cir. 2003) (holding that
when officers violated rights that were clearly established,
officers were not entitled to public officers’ immunity from
North Carolina state-law claims). We therefore reverse the
summary judgment on the state-law claim as well.
23
IV.
For the foregoing reasons, we reverse the district court
order granting summary judgment against Smith and remand to the
district court for trial.
REVERSED AND REMANDED
24