PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM KIM HENSLEY, 

Plaintiff-Appellee,

v.

FRED R. HORNE,

 No. 01-1977 Defendant-Appellant,

and

CITY OF DANVILLE, VIRGINIA,

Defendant. 

Appeal from the United States District Court

for the Western District of Virginia, at Danville.

Norman K. Moon, District Judge.

(CA-00-36-4)

Argued: February 27, 2002

Decided: July 16, 2002

Before WIDENER and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Dismissed by published opinion. Judge Widener wrote the opinion in

which Judge King and Senior Judge Hamilton joined. 

COUNSEL

ARGUED: Jeremy E. Carroll, DANIEL, VAUGHAN, MEDLEY &

SMITHERMAN, P.C., Danville, Virginia, for Appellant. Gary L.

Bengston, Danville, Virginia, for Appellee. 
OPINION

WIDENER, Circuit Judge: 

Fred Horne (defendant) challenges the district court’s order denying his motion for summary judgment as to William Hensley’s (plaintiff) free speech claim. Plaintiff sued defendant in his individual and

official capacity. Finding we have no appellate jurisdiction under

Johnson v. Jones, 515 U.S. 304 (1995), as to the individual capacity

claim, we dismiss the appeal. 

The facts, as found by the district court, are as follows. Plaintiff

William Hensley worked for the City of Danville as the Director of

the City’s Division of Power and Light. Defendant Fred Horne, the

Director of the Department of Utilities, supervised plaintiff’s division.

Two relevant series of events occurred in this case. First, in early

2000, City officials investigated alleged misconduct within the Division of Power and Light. Two employees in this Division were reprimanded, one being Hensley. City officials later investigated another

alleged incident of misconduct involving Hensley in that Hensley had

purchased a Ham radio antenna through a City account for his own

personal use. He paid for the antenna with his own funds; however,

City officials thought this act might be considered as an appearance

of impropriety. By late February 2000, Horne knew that Hensley had

purchased the antenna using the City account. On March 10, 2000,

Horne informed Hensley that he had no plans to fire him. On March

23, 2000, two weeks after Horne announced he had no plans to fire

Hensley, Horne sent Hensley a letter immediately suspending Hensley for the antenna purchase. This letter informed Hensley that he

would be terminated on March 28, 2000, but allowed him an opportunity to respond in writing to the allegations underlying his termination. Hensley responded, denying all allegations, and requested a

hearing prior to termination. Plaintiff, who was sick at the time, failed

to attend the hearing, which was held as scheduled for March 27,

2000, and was fired the next day. 

The second series of events concern a sexual harassment complaint

filed against Horne. These events ran concurrently with the antenna

incident. Kathy Barksdale (Miss Barksdale) complained to Hensley,

2 HENSLEY v. HORNE
her immediate supervisor, about unwanted physical contact by Horne.

She also complained regarding Horne’s insistence that she work with

him on Saturday. People rarely worked on Saturday, and she was hesitant because no one else would likely be in the office. Hensley

referred her directly to human resources. An independent investigator

was hired by the City in March of 2000 to explore Miss Barksdale’s

allegations. Ultimately, the district court related that the investigator

found no basis for the sexual harassment claims. 

On March 17, 2000, Horne held a staff meeting which Hensley

attended. Defendant allegedly announced that "if [he] went down

[from the sexual harassment claim and investigation], he was going

to take others down with him." Hensley claims that Horne then

instructed him not to say anything negative to the investigators about

Horne. On March 22, 2000, plaintiff was interviewed by investigators. When Horne asked plaintiff about his responses, plaintiff

responded that he "told the truth." Plaintiff claimed in the district

court that he told the investigators that he witnessed Horne touch

Miss Barksdale on the shoulder and arm. Hensley received his termination letter from Horne the next day. 

Plaintiff filed multiple causes of action under 42 U.S.C. §1983

against both defendant and the City of Danville alleging constitutional

injuries as a result of his March 28, 2000 discharge. After amendment

of the complaint by Hensley, the district court entered judgment in

favor of the City on all claims, which is not appealed. It also entered

judgment in favor of Horne on all claims except that of Hensley’s

claim that he was fired for his exercise of free speech, the treatment

of which is the sole issue on appeal. 

This claim was brought against Horne in his individual and official

capacity.1 As to the qualified immunity defense for the free speech

claim against defendant in his individual capacity, under Johnson v.

Jones, 515 U.S. 304 (1995), and cases following, we conclude that

this appeal is an attempt by Horne to have us review the correctness

1There has been no appeal of the judgment in favor of the City, thus

no judgment would lie against Horne in his official capacity, the City

being liable for any judgment. This leaves as the sole issue on appeal and

on remand the question of liability of Horne in his individual capacity.

HENSLEY v. HORNE 3
of, rather than the existence of, a genuine issue of fact for trial, so we

dismiss for want of appellate jurisdiction. 

Under 28 U.S.C. § 1291, we have jurisdiction to hear appeals from

final orders. Interlocutory appeals are not generally appealable, and

permission for such appeals must be granted under 28 U.S.C. § 1292.

Denials of summary judgment are not final orders and are, thus, not

appealable absent leave of court previously obtained in the ordinary

case. 

In Mitchell v. Forsyth, 472 US. 511 (1995), however, the Court

held that review of a defendant’s qualified immunity defense was a

final decision under 28 U.S.C. § 1291 and immediately appealable

under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47

(1949). Following Mitchell, in Johnson v. Jones, 515 U.S. 304 (1995),

the Court held that a district court’s pretrial order deciding "whether

or not the pretrial record sets forth a ‘genuine’ issue of fact for trial"

was not an appealable order. Johnson, 515 U.S. at 320. 

Under Pickering v. Board of Education, 391 U.S. 563 (1968), a

public employee has a First Amendment right to speak out on matters

of public concern. The district court held, and we agree, that Hensley

had such a free speech right under Pickering as a matter of public

concern to speak to the investigators the City employed to inquire into

the claim of Miss Barksdale, that she had been sexually harassed on

the job by Horne. That item is hardly contested, if at all. And we add

that the rule in Pickering was clearly established by numerous cases

in this circuit at the time that Hensley spoke to the investigators in

this case. Under Mitchell, so far as the matter of law is concerned, all

an appellate court need determine is "whether the legal norms allegedly violated by the defendant were clearly established at the time of

the challenged acts." Mitchell, 472 U.S. at 528. And under Behrens

v. Pelletier, 516 US. 299 (1996), "[i]f what is at issue in the sufficiency determination is nothing more than whether the evidence could

support a finding that particular conduct occurred, the question

decided is not truly ‘separable’ from the plaintiff’s claim, and hence

there is no ‘final decision’ under Cohen and Mitchell." Behrens, 516

U.S. at 313. 

The district court laid out the facts it found to support its summary

judgment conclusion:

4 HENSLEY v. HORNE
Considering the evidence in the light most favorable to

the Plaintiff, the sequence of events culminating in Plaintiff’s termination transpired as follows: (1) on March 10,

2000, Horne, with all information relating to the antenna

incident in hand, told the Plaintiff that he had no plans to

fire him; (2) at a staff meeting held on March 17, 2000,

Horne threatened that "if (he) went down (as a result of the

sexual harassment investigation), he was going to take others down with him"; (3) Horne warned Plaintiff not to say

anything negative about him to investigators; (4) Plaintiff

met with investigators on March 22, 2000, and soon thereafter informed Horne that he had "told the truth" which

according to Plaintiff was that Horne touched Barksdale on

the arm and shoulder on multiple occasions; (5) no new evidence relating to the antenna incident was uncovered

between [March] 10 and [March] 23, 2000; and [March] 23,

2000, in spite of Horne’s assurance of [March] 10,2 Plaintiff

was fired for purchasing the antenna using a City account,

a purchase that was made well before the then on-going sexual harassment investigation of Horne. J.A. 457. 

As noted, the district court held, and we agree, that Hensley had a

free speech right to speak to the investigators the City employed to

inquire into the claim of Miss Barksdale, that she had been sexually

harassed on the job by Horne. 

The next question is whether Hensley was fired for purchasing the

Ham antenna using the City’s account, or whether he was fired for

speaking to the investigators who had been employed by the City to

inquire into the claim of Miss Barksdale that she had been sexually

harassed by Horne. 

The district court, in consideration of the facts, the principal ones

having been related in the quoted passage above, was of opinion that

there was a genuine issue of material fact as to whether Hensley was

fired because of the interview he gave to the investigators inquiring

2The district court accidently wrote "May" when it meant March. No

relevant events happened in May; therefore, we, as do the parties, assume

the court meant March. 

HENSLEY v. HORNE 5
into the sexual harassment claim against Horne. We agree with the

district court’s analysis. That being true, Behrens is the controlling

precedent in this case. Under Behrens, if the question is "whether the

evidence could support the finding that particular conduct occurred,"

(italics added) there is no final order. Behrens, 516 U.S. at 313. The

district court in this case was of opinion that the evidence could support a finding that Hensley was fired because of his interview with the

investigator, which makes the question of the reason for Hensley’s

discharge a genuine issue of material fact, Horne claiming that Hensley’s discharge was on account of the purchase of the antenna on the

City’s account. 

Accordingly, the appeal of Horne must be dismissed and the case

remanded to the district court for further proceedings.

APPEAL DISMISSED

6 HENSLEY v. HORNE