UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-2317

SCOTT A. STICKLEY,

Plaintiff - Appellant,

v.

TIM SUTHERLY, Individually, and in his official capacity as 

Chief of Police, Town of Strasburg; KEVIN FAUBER, 

Individually, and in his official capacity as Town Manager, 

Town of Strasburg; TOWN OF STRASBURG, VIRGINIA,

Defendants - Appellees.

Appeal from the United States District Court for the Western 

District of Virginia, at Harrisonburg. Samuel G. Wilson, 

District Judge. (5:09-cv-00004-sgw)

Argued: December 8, 2010 Decided: March 14, 2011

Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and David A. 

FABER, Senior United States District Judge for the Southern 

District of West Virginia, sitting by designation.

Affirmed by unpublished opinion. Senior Judge Faber wrote the 

opinion, in which Chief Judge Traxler and Judge Wynn joined.

Annette Kay Rubin, Leesburg, Virginia, for Appellant. Rosalie 

Fessier, TIMBERLAKE, SMITH, THOMAS & MOSES, PC, Staunton, 

Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
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FABER, Senior District Judge:

The parties in this case ask us to decide whether the 

district court (a) correctly granted defendants Tim Sutherly and 

Kevin Fauber qualified immunity for an alleged violation of 

appellant Scott Stickley’s First Amendment rights and (b) 

whether the district court correctly held that the Town of 

Strasburg incurred no municipal liability as a consequence of 

Sutherly and Fauber’s actions. We agree with the district 

court’s holdings on both qualified immunity and municipal 

liability, and accordingly affirm the district court’s grant of 

summary judgment in defendants’ favor. 

I. Factual and Procedural Background

Appellant Scott Stickley joined the Strasburg, Virginia 

Police Department (“SPD”) in 1996. Stickley received a number 

of promotions during his years with the SPD and earned high 

marks on his assessments. In 2006 Stickley applied to be the 

Chief of Police, but was not selected. Instead, the town chose 

Tim Sutherly as the new Chief in February 2007. 

During the spring of 2007, Sutherly allegedly made comments 

to people in the community indicating his intention to dismiss 

Stickley from the SPD. On July 10, 2007, Sutherly placed 

Stickley on administrative leave, suspended Stickley’s police 

powers incident to a disciplinary action, and assigned him to 
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the position of School Resource Officer. Stickley alleges that 

he received comments from residents stating that Sutherly 

intended to further retaliate against Stickley in the future. 

Toward the beginning of August 2007, Stickley’s situation began 

to receive attention in the local press. The Northern Virginia 

Daily published a front-page article on police officer 

discipline in Strasburg, and a letter to the editor followed the 

article, calling for a community-wide discussion of the SPD 

disciplinary actions. On May 29, 2008, without any apparent new 

developments, Sutherly demoted Stickley to the position of a 

Patrol Officer, reassigned Stickley’s duties as primary firearms 

instructor to another officer, and forbade Stickley from filing 

a grievance about the demotion and reassignment. 

Shortly thereafter, Carl Rinker, a Town Council Member 

approached Stickley and asked him about his demotion. The two 

allegedly had a casual conversation, after which Rinker called 

Sutherly to discuss Stickley’s demotion. Following Sutherly’s 

conversation with Rinker, Sutherly placed Stickley on 

administrative leave while the SPD investigated whether Stickley 

had violated SPD regulations by going outside the chain of 

command in talking to Rinker. In response, Stickley sent 

Sutherly a grievance notice on June 11, 2008, alleging a 

violation of Stickley’s First Amendment rights, among others. 

The next day, Stickley went before a Board of Inquiry, convened 
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at Sutherly’s behest, accused of insubordination. On June 20, 

2008, Sutherly advised Stickley that his employment would be 

terminated because the Board of Inquiry had found that Stickley 

had committed two Category III infractions of the SPD 

regulations. Specifically, Sutherly and Kevin Fauber, the 

Strasburg Town Manager, dismissed Stickley for having taken 

“action which [would impair] the efficiency or reputation of the 

department, its members, or employees” and had committed 

“insubordination or serious breach of discipline.” Brief of 

Appellant, p. 14. At oral argument, counsel for Stickley 

conceded that Stickley did not follow the prescribed grievance 

procedure in voicing his objections to his demotion. The Board 

of Inquiry did not address Stickley’s alleged First Amendment 

violations. 

On February 4, 2009, Stickley filed a 42 U.S.C. § 1983 suit 

in the United States District Court for the Western District of 

Virginia alleging a violation of his First Amendment rights with 

respect to his conversation with Carl Rinker and subsequent 

dismissal from the SPD. The district court granted summary 

judgment in favor of defendants and this appeal ensued. 

We review de novo a district court’s grant of summary 

judgment and view the facts in the light most favorable to the 

nonmoving party. Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 

1997). 
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II. Analysis

A. Qualified immunity for Sutherly and Fauber

“Qualified immunity shields government officials performing 

discretionary functions from personal-capacity liability for 

civil damages under § 1983, insofar as their conduct does not 

violate clearly established statutory or constitutional rights 

of which a reasonable person could have known.” Campbell v. 

Galloway, 483 F.3d 258, 270 (4th Cir. 2007) (internal quotations 

omitted). Qualified immunity protects a defendant regardless of 

whether the government official’s error is "one of fact or one 

of law.” Butz v. Economou, 438 U.S. 478, 507 (1978).

In determining whether a defendant is entitled to qualified 

immunity, a court need not first determine whether the defendant 

actually violated the plaintiff’s statutory or constitutional 

rights. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). 

Instead, the court may first determine whether the right in 

question was “clearly established” at the time of the alleged 

violation, and if it was not, the court need go no further. Id.

at 816. The court’s holding in Pearson thus makes optional what 

had previously been mandatory under Saucier v. Katz, 533 U.S. 

194 (2001); namely, that the court first determine whether a 

violation of a plaintiff’s right had in fact occurred and only 

then consider whether that right was “clearly established.” Id.

at 818. The Supreme Court noted that while the Saucier sequence 
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“is often appropriate,” the courts “should be permitted to 

exercise their sound discretion in deciding which of the two 

prongs of the qualified immunity analysis should be addressed 

first in light of the circumstances in the particular case at 

hand.” Id. Having heard the parties’ arguments and reviewed 

the record, we believe it appropriate to forego making a 

determination of whether defendants actually violated Stickley’s 

First Amendment rights. Instead, we consider only whether 

Stickley’s right to comment on his demotion within the Strasburg 

Police Department was clearly established at the time defendants 

dismissed him from the force. 

“A right is clearly established if the contours of the 

right are sufficiently clear so that a reasonable officer would 

have understood . . . that his behavior violated the right.” 

Campbell v. Galloway, 483 F.3d 258, 271 (4th Cir. 2007). The 

law does not expect the defendant “to sort out conflicting 

decisions or to resolve subtle or open issues.” Id. at 271. 

“Officials are not liable for bad guesses in gray areas; they 

are liable for transgressing bright lines.” Maciariello v. 

Sumner, 973 F.2d 295, 298 (4th Cir. 1992). We now turn to a 

brief discussion of the law in this area to ascertain whether in 

fact Stickley’s asserted right to speak was “clearly 

established.”
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While public employees do not lose their right to speech by 

virtue of working for a governmental entity, neither are they 

free to speak on all variety of matters. Instead, the law has 

struck a compromise and protects public employee speech only in 

certain circumstances. Whether the First Amendment protects an 

employee’s right to speak must be analyzed under a two-part 

test. 

First, the court must determine whether the employee’s 

speech is “on a matter of public concern.” Connick v. Myers, 

461 U.S. 138, 146 (1983). Speech which is on a matter of public 

concern must relate to some “matter of political, social, or 

other concern to the community. . . .” Id. The inquiry centers 

on whether “the public or the community is likely to be truly 

concerned with or interested in the particular expression.” 

Kirby v. City of Elizabeth City, 388 F.3d 440, 446 (4th Cir. 

2004). Where the employee’s speech is more about a matter of 

personal interest, however, the First Amendment offers no 

protection. Stroman v. Colleton Cnty. Sch. Dist., 981 F.2d 152, 

156 (4th Cir. 1992). As the Stroman court explained, 

“[p]ersonal grievances, complaints about conditions of 

employment, or expressions about other matters of personal 

interest do not constitute speech about matters of public 

concern that are protected by the First Amendment, but are 
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matters more immediately concerned with the self-interest of the 

speaker as employee.” Id. (citing Connick, 461 U.S. at 147). 

Second, and only if the speech relates to a matter of 

public concern, the court must determine whether the employer 

was justified in discharging the employee. To do this, the 

court must balance the public employee’s interest in speech with 

“the government’s interest in the effective and efficient 

fulfillment of its responsibilities to the public.” Connick, 

461 U.S. at 150. The employer need not “prove that the 

employee’s speech actually disrupted efficiency, but only that 

an adverse effect was ‘reasonably to be apprehended.’” 

Maciariello, 973 F.2d at 300 (quoting Jurgensen v. Fairfax 

Cnty., 745 F.2d 868, 879 (4th Cir. 1984)). This interest is 

viewed as if on a spectrum "from university professors at one 

end to policemen at the other." Id. Police officers are 

considered to be “at the restricted end of the spectrum because 

they are ‘paramilitary’ -- discipline is demanded, and freedom 

must be correspondingly denied.” Id; see also Jurgensen, 745 

F.2d at 879; Kelley v. Johnson, 425 U.S. 238 (1976) (police 

department’s interest in discipline, esprit de corps, and 

uniformity were sufficient state interests to defeat a due 

process challenge to hair grooming regulations). “Consequently, 

greater latitude is afforded to police department officials in 
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dealing with dissension in their ranks.” Maciariello, 973 F.2d 

at 300.

Having reviewed the substantive law governing employee 

speech, we are persuaded that the law in this area is not 

“clearly established” such that a reasonable person would have 

known what the law necessarily required in many cases. We reach 

this conclusion because the language of the Connick test itself 

and the nuanced and careful approach the test requires lead to 

the conclusion that an employee’s right to speech in any 

particular situation will often not be immediately evident. The 

first prong of the test requires a determination of whether the 

employee’s speech is on a “matter of public concern.” This is a 

highly fact-intensive inquiry, which may be influenced by any 

variety of factors. Moreover, the line marking when something 

becomes a matter of public concern is blurry, and thus the 

boundary confining a public official’s behavior is hard to 

discern. The second prong of the test may be even more 

problematic because it requires a balancing of the employee’s 

and the employer’s competing interests. This not only requires 

a keen understanding of the respective interests of each party, 

but also necessitates a conclusion as to which interests are 

more substantial. This conclusion, in turn, becomes an 

inherently subjective task, and it is the subjective nature of 

the inquiry – especially when an official must undertake it ex 
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ante – that makes the inquiry problematic from a qualified 

immunity standpoint. As we have stated before, “where a 

sophisticated balancing of interests is required to determine 

whether the plaintiff’s constitutional rights have been 

violated, ‘only infrequently will it be ‘clearly established’ 

that a public employee’s speech on a matter of public concern is 

constitutionally protected.’” McVey v. Stacey, 157 F.3d 271, 

277 (4th Cir. 1998) (quoting DiMeglio v. Haines, 45 F.3d 790, 

806 (4th Cir. 1995).

Our finding of qualified immunity in this case is not meant 

to suggest that an employee can never show that the employer 

violated his or her right to speech. In a factual situation, 

for example, where it is abundantly clear that the employee is 

speaking on a matter of public concern and the employer can show 

no demonstrable interest in silencing the employee, the Connick

test becomes far less problematic and points the employer in one 

distinct direction: to allow the speech. This would exemplify 

an outlier case, where the employer properly incurs liability 

because a reasonable person would have immediately realized that 

the employer was violating the employee’s right by silencing the 

employee. It is in such cases, ones in which the violation is 

so clear, that qualified immunity does not protect the 

defendant. However, such is not the type of factual situation 

we are faced with here. Stickley’s comments touch on issues of 
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both personal and potentially public interest, while the Chief 

of Police undeniably had an important interest in maintaining 

unity among his officer corps. As such, the instant case calls

for a subtle and careful analysis under Connick. It is the 

requirement of this subtle and careful analysis to determine 

whether the speech was of private or public concern, and whose 

interest was paramount, that leads us to conclude that 

Stickley’s right to speak was not clearly established, and that 

therefore defendants were indeed entitled to qualified immunity. 

B. Municipal Liability

A plaintiff suing a municipal entity under 42 U.S.C. § 1983 

must show that his or her injury was caused by municipal policy 

or custom. Monell v. New York City Dept. of Soc. Servs., 436 

U.S. 658, 694 (1978). A municipality cannot be held liable 

under § 1983 solely because it employed a tortfeasor. Id. at 

691. “[M]unicipal liability may be imposed for a single 

decision by municipal policymakers under appropriate 

circumstances.” Pembaur v. City of Cincinnati, 475 U.S. 469, 

480 (1986). To hold a municipality liable, the decisionmaker 

must possess “’final authority to establish municipal policy 

with respect to the action ordered.’” Love-Lane v. Martin, 355 

F.3d 766, 782 (4th Cir. 2004) (quoting Pembaur, 475 U.S. at 

481)). 
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Stickley has failed to show that either Sutherly or Fauber 

possessed the final authority required to establish municipal 

liability. Defendants bring to the court’s attention the fact 

that the Town of Strasburg retains the final decisionmaking 

authority with respect to the Chief of Police’s actions. The 

Town Code provides that the Chief of Police “shall always be 

subject to the orders and regulations of the town manager, and 

under the control of the town manager.” Brief for Appellees, 

pp. 26-7. Plaintiff uses language from the SPD manual to argue 

that Sutherly had “final authority in all matters of policy 

operations and discipline.” Brief for Appellees, p. 28. As 

defendants point out, however, the Town Council never ratified 

the manual. Additionally, the fact that Sutherly had Stickley 

come before a Board of Inquiry to decide the question of 

Stickley’s alleged insubordination only strengthens defendants’ 

contention that Sutherly did not reserve to himself final 

decisionmaking authority with respect to employee discipline and 

termination issues. 

III. Conclusion

Accordingly, the district court’s grant of summary judgment 

in favor of defendants on the issues of qualified immunity and 

municipal liability is 

AFFIRMED.