Conley v. Town of Elkton

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2004
DAVID E. CONLEY,
Plaintiff - Appellant,
versus
TOWN OF ELKTON; CATHY H. MURPHY, individually
and in her official capacity as a Council
Member and Vice Mayor of Elkton; JAY T. DEAN;
PHILLIP “RICK” WORKMAN; THEODORE PENCE;
RANDALL L. SNOW, individually and in their
official capacities as Council Members of the
Town of Elkton; RICHARD W. PULLEN,
individually and in his official capacity as
Chief of Police of the Town of Elkton; JOAN
SIGAFOOSE, Executor of the estate of Lucky C.
Sigafoose,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (CA-04-30-5)
Argued: May 25, 2006 Decided: July 14, 2006
Before WILKINS, Chief Judge, GREGORY, Circuit Judge, and Joseph F.
ANDERSON, Jr., Chief United States District Judge for the District
of South Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Chief Judge Wilkins and Judge Anderson joined.
ARGUED: Timothy Earl Cupp, CUPP & CUPP, Harrisonburg, Virginia, for
Appellant. David Patrick Corrigan, HARMAN, CLAYTOR, CORRIGAN &
WELLMAN, Richmond, Virginia, for Appellees. ON BRIEF: Jeremy D.
Capps, HARMAN, CLAYTOR, CORRIGAN & WELLMAN, Richmond, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
GREGORY, Circuit Judge:
David E. Conley brought this action pursuant to 42 U.S.C. §
1983 against the Town of Elkton, Virginia (“Town”), Richard Pullen,
the Chief of the Town’s Police Department, and six members of the
Town’s Council (“Council”) (collectively “defendants”), asserting
that defendants terminated him from the Police Department because
he exercised his First Amendment rights. Conley also asserted a
pendent state law claim of defamation against Chief Pullen. The
district court granted defendants’ motion for summary judgment and
dismissed Conley’s complaint in its entirety. Finding no error in
the district court’s decision, we now affirm.
I.
The Town has a small Police Department comprised of five
officers. Police officers are at-will employees subject to
discharge at any time by the Council. In addition, the Town’s Code
specifically provides that “[t]he Council shall employ police
officers or terminate their employment, upon the recommendation of
the Chief of Police.” J.A. 734.
In September 2000, Conley began working as a police officer in
the Town’s Police Department. Shortly after Conley was hired,
Elkton terminated the police chief, Rob Marshall. Although Conley
applied for the position of police chief, the Council offered the
position to Richard Pullen.
3
Conley knew Pullen from his previous job in the Page County
Police Department. During their employment together, Conley’s wife
apparently telephoned Pullen’s wife in 1992 to inform her that
Pullen was engaging in an extramarital affair.1 During his
deposition, Conley opined that “I guess [the telephone call] would
cause him to have some animosity toward me.” J.A. 195.
Nevertheless, Conley attested that he had felt “[e]xcited” that
Pullen had received the position as police chief and thought that
they could work well together. J.A. 124.
Soon after Conley began working for the Police Department, he
earned a reputation as a highly regarded police officer with
excellent communication skills. According to Chief Pullen, Conley
was more productive than the other officers, adept at solving
cases, and proactive in performing volunteer work. Conley was also
well-liked within Elkton.
Within the Police Department, however, Conley experienced
significant friction with two of the existing officers, Harold
Shifflet and John Painter.2 In early 2001, Officer Shifflet and
1
In fact, Conley himself knew about Pullen’s affair and had
reported Pullen’s conduct to the sheriff at Page County.
2
Officer Shifflet and Officer Painter initially feared that
Conley had been hired to replace Marshall as police chief. In
early January 2001, when Pullen assumed his duties as the new
police chief, Conley was promoted to the position of Corporal.
According to Conley, the other officers (Donald Dean, Shifflet, and
Painter) resented his rank. Conley further alleges that he was
downgraded four to six weeks later in order “to keep the peace . .
. .” J.A. 133.
4
Officer Painter unsuccessfully propositioned a married woman in the
community to entice Conley back to her home “in order to implicate
him in improper relations with a woman while on duty.” J.A. 720.
The woman was “shocked” at the suggestion and instead, informed
both Conley and Chief Pullen of the officers’ proposal. Id.According to Conley, Chief Pullen did not discipline either Officer
Shifflet or Officer Painter for this incident. Ultimately, Officer
Shifflet and Officer Painter both resigned from the Police
Department in 2001 because of their personal difficulties with
Conley.
Conley was also involved in disputes with the other officers.
Officer James Morris testified that he noticed that Conley had
various “altercations” with Chief Pullen, Sergeant John Atwood, and
the other patrol officers. J.A. 303. On one occasion, Officer
Rodney Hensley told Chief Pullen that he had “snapped” at Conley
when Conley attempted to assist him in a case. J.A. 288. On
another occasion, Conley accused Officer Donald Dean of badmouthing
him in public, at which point Officer Dean began “screaming and
yelling” at Conley. J.A. 145.
In March 2001, Conley confronted Chief Pullen regarding the
lack of productivity he perceived within the Police Department. At
one point, Conley pointed to the summons log, which recorded the
amount of work performed on a monthly basis, and raised his voice
at Chief Pullen, claiming that “nobody’s not [sic] doing anything.”
5
J.A. 135. Conley subsequently received a reprimand for
insubordination for his conduct.
Following these incidents, Chief Pullen concluded that Conley
was not getting along with the other officers. See J.A. 581
(Pullen, stating that “[i]f it would have been Officer Conley and
one particular individual, I would have said, okay, there’s [a]
personality conflict here, but it was always Officer Conley and
someone else; it was Officer [Conley] and John Painter, Officer
Conley and Harold Shifflet, Officer Conley and someone else”).
Conley admitted that his “fellow officers had trouble getting along
with me,” J.A. 168, but claimed that any disruptions were minimal
because the officers worked different shifts. He further stated
that the other officers “had made complaints on me ever since I’ve
been there. They’ve made it hard on me ever since I been there.
They, not me; they.” J.A. 169.
In May or June of 2001, the Council called a meeting to
address complaints it had received from several officers about
Conley. According to Cathy Murphy, a member of the Council, the
other officers “did not feel comfortable with Officer Conley, that
Officer Conley was overbearing, issuing orders, telling them they
weren’t doing their job correctly, that he was the best officer.”
J.A. 343. Despite these complaints, the Council took no action
against Conley at that time.
6
Although he had difficulties with his fellow officers, Conley
flourished in his volunteer activities with Neighborhood Watch, a
seventy-five member organization that focused on improving safety
within the Town. During a Neighborhood Watch program held in the
summer of 2002, Conley remarked that a canine unit (“K-9 program”)
“would be the best drug deterrent in a small town.” J.A. 153.
Neighborhood Watch immediately jumped at the suggestion and began
fundraising efforts for the K-9 program.
When Neighborhood Watch approached Chief Pullen with the K-9
program, Chief Pullen responded that he would discuss it with the
Council. According to Neighborhood Watch, Chief Pullen represented
that he had received approval from the Council to move forward with
the K-9 program. However, after Neighborhood Watch had raised
enough money to start the K-9 program, it learned that Chief Pullen
had not even spoken with the Council about instituting the K-9
program. Members of Neighborhood Watch grew angry with Chief
Pullen because they believed that he had lied to them.
Chief Pullen did not directly dispute that he misrepresented
that he had received approval from the Council. Rather, Chief
Pullen stated that he did inform the Council of the idea, but that
the Council had dragged its feet in deciding whether to proceed
with the program. Chief Pullen opined that the K-9 program had
created havoc among the community because “Neighborhood Watch was
trying to dictate to the town what was to be done with the dog, who
7
was supposed to handle the dog, that sort of thing.” J.A. 559-60.
Chief Pullen further admitted that he believed that Officer Morris
would be a superior K-9 officer based on his physical fitness, but
that he felt too much pressure from Neighborhood Watch to support
Conley.
Some members of the Council similarly became frustrated with
the way in which Neighborhood Watch had thrust the K-9 issue upon
them. Indeed, Murphy admitted that the Council felt that the issue
had created considerable disruption:
The havoc was that the canine issue became public really
before it came to council for discussion; and what that
did, because it was a public issue before it was a
council issue to even accept the canine, it put pressure
on the chief, it put pressure on the council to
accommodate a canine.
J.A. 330. In general, however, the Council supported the K-9
program.
In January 2003, the Council decided to appoint Conley as the
K-9 officer. Conley poured a concrete pad at his house for the
kennel and prepared for a training session scheduled in March 2003.
When Conley and Chief Pullen went to visit the designated K-9 dog,
Conley apparently remarked that he did not want to train the dog in
cold weather; therefore, Chief Pullen pushed back the training date
to the middle of April.
Meanwhile, Conley continued to experience difficulties with
his fellow officers. On January 24, 2003, Chief Pullen met with
the newly-elected Mayor Wayne E. Printz, Council member Lucky
8
Sigafoose, Sergeant Atwood, Officer Morris, and Officer Hensley.
At this point, Chief Pullen and the other officers expressed that
Conley was adversely affecting morale. Chief Pullen further
informed Mayor Printz that the officers “were of the impression
that Mr. Conley was trying to make himself look great to their
detriment.” J.A. 512.
In March 2003, Conley met with John Boone, an officer at the
Massanutten Police Department, at a restaurant in the Town. During
their conversation, Conley told Officer Boone that “there was a lot
of people that wanted to see Pullen out the door.” J.A. 93.
Conley then asked Officer Boone “how much would [he] have to be
paid [in terms of] salary to come to Elkton.” J.A. 97. When
Officer Boone replied, “$33,000,” Conley stated, “[t]he Town
Council is not going to pay that.” J.A. 187. Ultimately, Officer
Boone understood Conley to mean that “he was trying to get me to
work down there just in case Pullen got fired . . . .” J.A. 97.3
At one point during his conversation with Officer Boone,
Conley asked a bystander which candidate he would be supporting in
the upcoming sheriff’s election. When the man responded, “Don
Farley,” Conley replied, “well, when I get some time and I’m off
duty, let me talk to you.” J.A. 86-87. Officer Boone understood
3
According to Conley, his recruiting inquiries to Officer
Boone and another individual, David Barry (who was an experienced
K-9 officer), were “strictly in the essence, if we had openings,
that maybe they could come fill those openings.” J.A. 187.
9
Conley’s comment to express his support for Buddy Farris, the only
other candidate running for sheriff.
Because both officers were in uniform at that time, Officer
Boone felt nervous that he had violated his department’s gag order
prohibiting police officers from discussing the sheriff’s election
during active duty in public. To avoid the appearance of
impropriety, he reported the conversation to his supervisor and
Chief Pullen. Although Boone told them that Conley “did not openly
support Buddy Farris,” J.A. 101, Chief Pullen believed that Conley
had violated the Police Department’s prohibition against police
officers supporting political candidates while on duty.
Thereafter, Chief Pullen contacted Murphy and other members of
the Council to discuss his recommendation to terminate Conley.
According to Chief Pullen, the Council was in agreement to
terminate Conley. Chief Pullen believed that “enough was enough,
and we should give him the option to resign or be terminated.”
J.A. 529. Chief Pullen did not, however, discuss the matter with
Mayor Printz because, in Chief Pullen’s view, “it was obvious that
Mayor Printz would not be in favor of [terminating Conley].” J.A.
585.
On April 8, 2003, the Council convened in a special closed
session. At the session, Chief Pullen distributed a sheet of paper
reciting eight reasons underlying his recommendation to terminate
Conley:
10
1. Enter into conspiracy to disrupt operation of
Police Department.
2. Interfering with cases of other officers.
395 [Officer Hensley] in court.
391 [Officer Adam Williams] at Neighborhood Watch.
3. Participate in political campaigns while on duty.
4. Failed to take felony warrants to Sheriff’s Office
on the day told to do so. (02/20/2003).
5. Becomes defensive when questioned about activities.
6. On two separate occasions has failed to appear for
court cases without proper notification.
7. Informed in writing that Conley is reluctant to
deal with friends and relations.
8. On three separate occasions Conley has been called
before council for altercations with superiors and
co-workers.
J.A. 475.
The Council unanimously voted to accept Chief Pullen’s
recommendation to terminate Conley. At the time of Conley’s
termination, there were six members on the Council: Jay T. Dean,
Cathy Murphy, Theodore Pence, Lucky Sigafoose, Randall L. Snow, and
Phillip Workman, II. Each member, with the exception of Sigafoose
(who is now deceased), gave differing reasons based on Chief
Pullen’s list for terminating Conley.
Following his termination, Conley brought suit against
defendants, asserting § 1983 claims against the Council related to
his termination and a defamation claim against Chief Pullen. Upon
defendants’ motion for summary judgment on all of Conley’s claims,
the district court granted the motion and dismissed the complaint.
Conley now appeals.
11
II.
A.
We review de novo the district court’s decision to grant
defendants’ motion for summary judgment. Holly Hill Farm Corp. v.
United States, 447 F.3d 258, 262 (4th Cir. 2006). According to
Rule 56(c) of the Federal Rules of Civil Procedure, summary
judgment is appropriate where “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, . . . show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c). Although we view the
facts and inferences drawn therefrom in the light most favorable to
Conley, the non-moving party, he has the ultimate burden of
demonstrating a genuine issue of material fact for trial. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
B.
Conley first asserts that the district court erroneously
granted summary judgment with respect to his § 1983 claims
regarding (1) his comments concerning the sheriff’s election and
(2) his association with Neighborhood Watch. We disagree.
The First Amendment “protects public employees from
termination of their employment in retaliation for their exercise
of speech on matters of public concern.” McVey v. Stacy, 157 F.3d
12271, 277 (4th Cir. 1998). Protected speech must involve “an issue
of social, political, or other interest to a community.” Love-Lane
v. Martin, 355 F.3d 766, 776 (4th Cir. 2004) (internal quotation
marks and citations omitted); Edwards v. City of Goldsboro, 178
F.3d 231, 247 (4th Cir. 1999) (holding that the determination of
whether speech is protected rests on “whether the public or the
community is likely to be truly concerned with or interested in the
particular expression, or whether it is more properly viewed as
essentially a private matter between employer and employee”
(internal quotation marks and citations omitted)). However, even
if the speech at issue is protected, an employee’s interest “is not
absolute and must be tempered by the government’s interest in
governmental effectiveness, efficiency, order, and the avoidance of
disruption.” McVey, 157 F.3d at 277.
In accordance with these principles, a plaintiff claiming
retaliatory discharge based on speech protected under the First
Amendment must satisfy a three-part test. First, the speech must
implicate a matter of public concern. Id. Second, the “employee’s
interest in First Amendment expression must outweigh the employer’s
interest in efficient operation of the workplace.” Goldstein v.
Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 352 (4th Cir.
2000) (internal quotation marks and citations omitted). Third, the
speech must have been a “substantial factor” in the termination
decision. McVey, 157 F.3d at 278 (internal citations omitted).
13
We first find that the district court properly dismissed
Conley’s § 1983 claim regarding his comments concerning the
sheriff’s election. Although Conley’s comments regarding the
election implicated a matter of public concern, he cannot establish
that his right to express those views while in uniform and on duty
outweighed the Police Department’s interest in maintaining an
effective police force. Indeed, as the Tenth Circuit has observed,
“public endorsement of candidates by police officers has stirred
great controversy within police departments and has detracted from
the efficiency and the quality of the services provided by law
enforcement.” Jantzen v. Hawkins, 188 F.3d 1247, 1258 (10th Cir.
1999) (internal quotation marks and citations omitted) (holding
that the police department’s interest in providing effective law
enforcement outweighed the police officers’ free speech interest in
running against the sheriff in an election); Horstkoetter v. Dep’t
of Pub. Safety, 159 F.3d 1265, 1274 (10th Cir. 1998) (finding that
Oklahoma’s interests in insulating troopers from political
pressures, promoting efficiency and harmony amongst troopers, and
ensuring that police protection would be available to the public
regardless of political affiliations outweighed the troopers’
individual rights to display political signs). See also U.S. Civil
Serv. Comm’n v. Nat’l Assoc. of Letter Carriers, 413 U.S. 548, 565
(1973) (“[I]t is not only important that the Government and its
employees in fact avoid practicing political justice, but it is
14
also critical that they appear to the public to be avoiding it, if
confidence in the system of representative Government is not to be
eroded . . . .”). Since the record fails to reflect any further
prohibitions on Conley’s ability to engage in political activities
while off-duty or out of uniform, the Police Department’s intrusion
on his First Amendment rights, if any, was slight. The Police
Department’s legitimate interest in insulating itself from
political divisiveness within both the Police Department and the
community outweighed Conley’s right to free speech. Thus, we
affirm the district court’s decision to grant summary judgment on
this claim.
We similarly find that the district court properly dismissed
Conley’s § 1983 claim regarding his right to associate with
Neighborhood Watch. Even assuming that Conley has otherwise
satisfied the elements of his claim, Conley failed to establish the
requisite causal connection between his association with
Neighborhood Watch and his termination--i.e., that his association
with Neighborhood Watch was a substantial factor in his
termination. As an initial matter, Conley did not present any
evidence that the Council ever discussed his association with
Neighborhood Watch. In voting to terminate Conley, each member of
the Council relied on various justifications--e.g., Conley’s
altercations with his fellow officers, various acts of
insubordination, and conversations concerning the efforts to
15
terminate Chief Pullen--which were wholly unrelated to his
association with Neighborhood Watch. Thus, the Council “would have
fired [Conley] even in the absence of the protected speech.” Hall
v. Marion Sch. Dist., 31 F.3d 183, 193 (4th Cir. 1994) (internal
citations omitted).4
Although Conley asserts that his actions were legitimate in
each of the cited instances, we note that the Council members “need
not have been correct in their apprehension of the facts underlying
the articulated justifications.” Goldstein, 218 F.3d at 357.
Moreover, even if, as Conley claims, Chief Pullen harbored an
unconstitutional retaliatory motive against Conley for his
association with Neighborhood Watch, there is no evidence that the
Council merely rubber-stamped that reason in terminating Conley.
Kirby v. City of Elizabeth City, 388 F.3d 440, 451 (4th Cir. 2004)
(no causal connection where the plaintiff failed to “forecast[]
evidence that the City Manager approved of retaliation against
Kirby as a basis for the demotion”). Accordingly, we conclude that
4
We further note that Conley’s argument that the temporal
proximity between his activities with Neighborhood Watch and his
termination establishes causation is weak. Conley joined
Neighborhood Watch in 2001 (two years before his termination) and
suggested the K-9 program in 2002 (one year before his
termination). These events are simply too far removed from his
termination to raise a genuine issue of material fact concerning
causation.
16
the district court’s decision to grant summary judgment on this
claim was appropriate.5
C.
Conley next contends that the district court erroneously
granted summary judgment with respect to his defamation claim.
Conley’s defamation claim rested on Chief Pullen’s recommendation
that Conley be terminated because he had conspired to disrupt the
Police Department. In dismissing this claim, the district court
reasoned that Conley did not present sufficient evidence showing
that Chief Pullen acted with the requisite malice in making this
statement. We agree with the district court.
Virginia law, which governs Conley’s defamation claim,6
applies a qualified privilege to allegedly defamatory statements
made in the context of an employment decision. Union of
Needletrades v. Jones, 603 S.E.2d 920, 924 (Va. 2004). As the
Supreme Court of Virginia has explained, such statements are
protected because they are “‘made between persons on a subject in
which the persons have an interest or duty.’” Id. (quoting
Larimore v. Blaylock, 528 S.E.2d 119, 121 (Va. 2000)). Moreover,
5
We therefore need not reach the issue of qualified immunity
discussed by the district court.
6
See Johnson v. Hugo’s Skateway, 974 F.2d 1408, 1416 n.7 (4th
Cir. 1992) (a federal court is required to apply state law to
pendent state claims brought with § 1983 claims).
17
the qualified privilege facilitates free discussions between
employees and employers because:
Public policy and the interest of society demand that in
cases such as this an employer, or his proper
representatives, be permitted to discuss freely with an
employee, or his chosen representatives, charges
affecting his employment which have been made against the
employee to the employer. There is a privilege on such
occasions and a communication made under such
circumstances, within the scope of the privilege, without
malice in fact, is not actionable, even though the
imputation be false, or founded upon erroneous
information.
Chesapeake Ferry Co. v. Hudgins, 156 S.E. 429, 441 (Va. 1931).
To overcome the qualified privilege in the employment context,
the plaintiff cannot rely on merely showing the falsity of the
communication; rather, he must establish that the communication was
“inspired by malice.” Larimore, 528 S.E.2d at 121 (“The question
is not as to the truth or falsity of the communication, or whether
the action taken by the defendant with reference thereto or based
thereon was right or wrong, but whether the defendant in making the
publication acted in good faith or was inspired by malice.”
(internal citations omitted)). Specifically, the plaintiff must
establish common-law malice--i.e., “behavior actuated by motives of
personal spite, or ill-will, independent of the occasion on which
the communication was made.” Union of Needletrades, 603 S.E.2d at
924 (internal quotation marks and citations omitted).7 In
7
As the district court concluded, Conley cannot simply rely on
showing that Chief Pullen made the conspiracy accusation with the
knowledge that it was false or with reckless disregard for the
18
addition, the plaintiff must prove common-law malice by clear and
convincing evidence, which is defined as follows:
Clear and convincing evidence is that degree of proof
which produces in the mind of the trier of facts a firm
belief or conviction upon the allegations sought to be
established. It is intermediate proof, more than a mere
preponderance, but less than proof beyond a reasonable
doubt. It does not mean clear and unequivocal.
Se. Tidewater Opportunity Project, Inc. v. Bade, 435 S.E.2d 131,
133-34 (Va. 1993) (internal quotation marks and citations omitted).
The record indicates that Chief Pullen premised his conspiracy
accusation on the conversation between Conley and Officer Boone in
March 2003. During that conversation, Conley told Officer Boone
that a growing alliance sought to terminate Chief Pullen, and
subsequently suggested that Officer Boone could switch to the
Town’s Police Department in the near future. Officer Boone
interpreted Conley’s comments to mean that “he was trying to get me
to work there just in case Pullen got fired . . . .” J.A. 97.
Officer Boone subsequently relayed the substance of this
conversation to his supervisor and to Chief Pullen. After learning
of the conversation, Chief Pullen believed that Conley had spoken
with members of Neighborhood Watch to plot his removal as police
chief. Moreover, Chief Pullen determined that Conley’s conduct had
violated the Police Department’s Code of Conduct, which provides,
in relevant part, that:
truth to overcome the qualified privilege in the employment
context. See Union of Needletrades, 603 S.E.2d at 924 n.4.
19
Any member of the Police Department who enters into a
conspiracy, combination, or agreement with the purpose of
substantially interfering with or obstructing the
efficient conduct or operation of the police force by a
strike or other disturbance, shall be guilty of gross
neglect of duty, the penalty for which is dismissal.
J.A. 745. Indeed, Chief Pullen expressly relied on the language
set forth in the Code of Conduct in characterizing his first
reason--“Enter into conspiracy to disrupt operation of Police
Department”--for recommending Conley’s termination to the Council.
J.A. 475.
The circumstances surrounding Chief Pullen’s accusation thus
establish that he made the accusation in accordance with his good
faith belief that Conley had violated the Code of Conduct. See
Larimore, 528 S.E.2d at 121 (“The question is not as to the truth
or falsity of the communication, or whether the action taken by the
defendant with reference thereto or based thereon was right or
wrong, but whether the defendant in making the publication acted in
good faith or was inspired by malice.” (internal citations
omitted)). As the district court noted, “[r]ightly or wrongly,
Chief Pullen believed that Conley had conspired to get him fired.”
J.A. 822. Setting aside whether Chief Pullen’s determination was
actually correct, we perceive no indication that improper
considerations such as malice motivated Chief Pullen to make the
conspiracy accusation.
Conley nevertheless raises several contentions in support of
his view that Chief Pullen acted out of malice. Specifically,
20
Conley maintains that the following establish Chief Pullen’s hatred
of him: (1) Chief Pullen’s failure to substantiate the conspiracy
accusation; (2) Chief Pullen’s failure to confer with Mayor Printz
concerning the recommendation to terminate Conley or to provide
Conley with an opportunity to respond to the recommendation; (3)
Chief Pullen’s desire to protect his own job as police chief; (4)
Chief Pullen’s resentment toward Conley for his appointment as the
K-9 officer; (5) Chief Pullen’s failure to discipline Officer
Painter and Officer Shifflet for their plot to set up Conley in
2001; and (6) Chief Pullen’s anger arising from Conley’s wife’s
disclosure of Chief Pullen’s extramarital affair in 1992.
None of these arguments raises a genuine issue of material
fact regarding the existence of malice. First, Conley’s assertion
that Chief Pullen’s failure to substantiate the conspiracy
accusation demonstrates malice overlooks the fact that Chief Pullen
learned of Conley’s comments directly from Officer Boone.
Significantly, Conley did not proffer any evidence that would cast
doubt over Officer Boone’s credibility, or would otherwise
undermine Chief Pullen’s good faith reliance on Officer Boone’s
account of the conversation. Second, Conley’s argument that Chief
Pullen circumvented established Town policy by refusing to inform
Mayor Printz of the recommendation to terminate Conley prior to the
closed session and depriving Conley of an opportunity to respond is
flawed. No Town policy or provision entitles Conley to the
21
procedures he seeks. Third, Chief Pullen’s admitted desire to
protect his own job is not indicative of personal spite or ill-will
against Conley in light of his good faith belief that Conley was
attempting to steal his job. Fourth, Conley’s argument that Chief
Pullen sought to terminate him as a retaliatory measure for
Conley’s selection as the K-9 officer amounts to mere speculation
and is unsupported by the record.
Finally, the two incidents cited by Conley as indicative of
longstanding bad blood between himself and Chief Pullen are too far
removed in time from Conley’s termination. As the district court
noted, Conley’s incident with Officer Painter and Officer Shifflet
occurred more than two years prior to Conley’s termination, while
Conley’s wife’s disclosure of Chief Pullen’s extramarital affair
occurred more than ten years prior to the termination. Moreover,
it is undisputed that Conley was “[e]xcited” that Chief Pullen was
joining the Police Department, J.A. 124, and that Chief Pullen
later commended Conley for his performance in a counterfeiting ring
in 2002. In light of these positive interactions between the two
men, we are hard-pressed to infer that Chief Pullen continued to
harbor malice toward Conley until his ultimate termination in 2003.
See Se. Tidewater Opportunity Project, 435 S.E.2d at 132 (holding
that to avoid the privilege, the plaintiff must show “that the
words were spoken with malice in fact, actual malice, existing at
22
the time the words were spoken . . . ” (internal citations
omitted)).
Ultimately, we agree with the district court that Conley has
failed to establish, by clear and convincing evidence, that Chief
Pullen acted out of personal spite or ill-will in making the
conspiracy accusation. Accordingly, we affirm the district court’s
decision to grant summary judgment on this claim.
III.
The district court’s decision to grant defendants’ motion for
summary judgment is therefore affirmed.
AFFIRMED
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