PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES BROOKS; DONALD HAMLETTE, 

Plaintiffs-Appellants,

and

SAMUEL ST. JOHN,

Plaintiff,

v.  No. 11-1899

HOWARD R. ARTHUR, SR., in his

individual capacity,

Defendant-Appellee,

and

RANDAL W. MITCHELL,

Defendant. 

Appeal from the United States District Court

for the Western District of Virginia, at Lynchburg.

Norman K. Moon, Senior District Judge.

(6:08-cv-00028-NKM)

Argued: May 18, 2012

Decided: July 9, 2012

Before WILKINSON, NIEMEYER, and KING,

Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Judge Niemeyer and Judge King joined.
COUNSEL

ARGUED: Richard F. Hawkins, III, HAWKINS LAW

FIRM, PC, Richmond, Virginia, for Appellants. Sydney

Edmund Rab, OFFICE OF THE ATTORNEY GENERAL OF

VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF:

Kenneth T. Cuccinelli, II, Attorney General, Wesley G. Russell, Jr., Deputy Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

OPINION

WILKINSON, Circuit Judge:

Plaintiffs James Brooks and Donald Hamlette, corrections

officers at the Correctional Unit in Rustburg, Virginia, sued

under 42 U.S.C. § 1983, alleging that the defendants unlawfully fired them for exercising their First Amendment rights

to free speech. The Supreme Court has been quite clear, however, that "‘complaints about . . . the employee’s own duties’"

that are "filed with an employer using an internal grievance

procedure . . . do[ ] not relate to a matter of public concern

and accordingly ‘may give rise to discipline without imposing

any special burden of justification on the government

employer.’" Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct.

2488, 2501 (2011) (quoting United States v. Treasury Emp.,

513 U.S. 454, 466 (1995)). We therefore affirm the grant of

summary judgment for the defendants.

I.

Plaintiffs James Brooks and Donald Hamlette were

employees of the Virginia Department of Corrections

("VDOC") working at Rustburg Correctional Unit #9 in Rustburg, Virginia. Brooks was a senior corrections officer, super2 BROOKS v. ARTHUR
vised by Hamlette, a lieutenant. Hamlette is AfricanAmerican and a Baptist minister. Both men reported to the

defendants, Howard Arthur, the Superintendent, and Major

Randal Mitchell, the Assistant Superintendent. 

On April 7, 2006, Brooks met with Althea McKnight, a

personnel assistant with the VDOC’s Equal Employment

Opportunity office, to discuss filing a discrimination charge

against Arthur. No formal charge was made at that time, but

on May 9, 2006, Brooks met with Larry Huffman, the

VDOC’s Regional Director and Arthur’s direct superior, to

elaborate on his complaints. Among other things, Brooks

reported that Mitchell embarrassed him by reprimanding him

in front of inmates in violation of Department policy. After

this meeting, Arthur called Brooks into his office to discuss

his complaints and Brooks’s decision to take them to a higher

level in the chain of command. Brooks claims that Arthur told

him that "you won’t hear anything" about the allegations

Brooks had made to Huffman. 

At the same time, Hamlette also began pursuing proceedings against Arthur and Mitchell. On April 21, 2006, he filed

an EEO complaint alleging that the defendants discriminated

against him on the basis of race and religion. He complained

that, as the only African-American lieutenant in the unit, he

was treated differently from the other officers. Hamlette

alleged incidents including additional unwarranted security

checks during his shift, an insinuation that Hamlette would

not have reported a disciplinary violation involving an inmate

with a cell phone, the more lenient disposition of disciplinary

charges against an inmate who was disrespectful to Hamlette,

and the selection of Hamlette for less-advantageous duty

assignments in the prison kitchen. Hamlette named Brooks as

a potential witness to these allegations. 

On August 30, 2006, one day before witness responses

were due to the EEO, Arthur issued termination notices to

Hamlette and Brooks for disciplinary violations that Arthur

BROOKS v. ARTHUR 3
observed during a monthly security inspection of the unit.

These notices alleged that Brooks and Hamlette failed to staff

posts as required and falsified inmate count records. Brooks

and Hamlette challenged their terminations with the VDOC

Department of Employment Dispute Resolution, which

reduced the severity of the charges, limited the complainants’

punishment to ten-day suspensions, reinstated both men’s

employment, and awarded them back pay.

On September 2, 2008, Brooks and Hamlette filed complaints in federal district court under 42 U.S.C. § 1983. They

first alleged that defendants retaliated against them for the

exercise of their First Amendment rights in the course of

lodging their employment complaint. The second count

claimed defendants deprived plaintiffs of due process under

the Fourteenth Amendment by interfering with the employment dispute process. A third count alleged a state law claim

against Arthur for tortious interference with plaintiffs’

employment contract with the VDOC. 

The district court initially dismissed the complaint in its

entirety as barred by res judicata, holding that the VDOC and

the defendants were in privity during the employment dispute

resolution proceedings. See Brooks v. Arthur, 611 F. Supp. 2d

592 (W.D. Va. 2009). This court reversed that determination

and allowed the claims to proceed. See Brooks v. Arthur, 626

F.3d 194 (4th Cir. 2010). On remand, the district court concluded that "the ‘threshold question’ of showing that Plaintiffs’ speech addressed a matter of public concern has not

been satisfied," Brooks v. Arthur, 2011 WL 3102791, at *14

(W.D. Va. 2011) (internal citation omitted), and therefore

granted summary judgment for the defendants on July 26, 2011.1

This appeal followed.

1Plaintiffs did not oppose the entry of summary judgment for the defendants as to the due process claim, and so the only counts at issue before

this court are the First Amendment claim and the state law tortious interference claim. 

4 BROOKS v. ARTHUR
II.

We review the district court’s grant of a motion to dismiss

de novo. See Lux v. Judd, 651 F.3d 396, 401 (4th Cir. 2011).

In so doing, however, we must respect the limits the Supreme

Court has imposed on suits by public employees alleging

retaliation for expression protected by the First Amendment.

A.

It is undisputed that public employees may not "constitutionally be compelled to relinquish the First Amendment

rights they would otherwise enjoy as citizens to comment on

matters of public interest." Pickering v. Bd. of Educ., 391 U.S.

563, 568 (1968). But this protection "does not require a public

office to be run as a roundtable for employee complaints over

internal office affairs." Connick v. Myers, 461 U.S. 138, 149

(1983). In Connick, the Supreme Court stressed that "the

repeated emphasis in Pickering" on the need for an employee

to be speaking as a citizen on matters of public concern "was

not accidental," id. at 143, but rather sets the boundaries of

what speech is protected in the public employment setting. 

To implement Connick, this court in Daniels v. Quinn, 801

F.2d 687 (4th Cir. 1986), and McVey v. Stacy, 157 F.3d 271

(4th Cir. 1998), adopted a three-part test to determine whether

a public employee has stated a First Amendment claim for

retaliatory discharge. First, we consider "whether the public

employee was speaking as a citizen upon a matter of public

concern or as an employee about a matter of personal interest." Id. at 277. Second, even if the employee spoke upon a

matter of public concern, we must determine "whether the

employee’s interest in speaking upon the matter of public

concern outweighed the government’s interest" in managing

the working environment. Id. And finally, if the employee’s

claim satisfies both of these legal criteria, the court turns to

the factual question of "whether the employee’s speech was

BROOKS v. ARTHUR 5
a substantial factor in the employee’s termination decision."

Id. at 277-78. 

The first prong of the McVey test, whether the speech

addressed a matter of public concern, is "the threshold question." Rankin v. McPherson, 483 U.S. 378, 384 (1987). If an

employee’s speech "cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary

for us to scrutinize the reasons for [the employee’s] discharge." Connick, 461 U.S. at 146. If the employee cannot

carry this burden, then summary judgment for the employer

is appropriate, even if the termination decision "may not be

fair" or is "mistaken or unreasonable." Id. at 146-47.

The Connick Court did not draw sharp lines for when "an

employee’s speech addresses a matter of public concern," but

instead directed courts to consider the "content, form, and

context of a given statement." Id. at 147-48. This is not to say

that Connick left the lower courts without guidance, however.

As to content, the Court cautioned against presuming "that all

matters which transpire within a government office are of

public concern." Id. at 149. To determine the protected status

of an employee’s speech, Connick directed us to scrutinize the

comments to assess whether they are intended "to evaluate the

performance of the office"—which would merit constitutional

protection—or merely "to gather ammunition for another

round of controversy" with superiors—which would not. Id.

at 148. The Connick Court was explicit on this point: "When

employee speech concerning office policy arises from an

employment dispute concerning the very application of that

policy to the speaker, additional weight must be given to the

supervisor’s view" that the employee’s speech addresses

solely a private dispute. Id. at 153. At bottom Connick reflects

the belief that many ordinary disputes in the public workplace

should be settled or resolved without calling the heavy artillery of the Constitution into play.

More recently, the Supreme Court has expressed skepticism

that speech in the context of an employment grievance pro6 BROOKS v. ARTHUR
ceeding addresses a public concern meriting constitutional

protection under Pickering. In United States v. National Treasury Employees Union, 513 U.S. 454 (1995), the Court held

that "private speech that involves nothing more than a complaint about a change in the employee’s own duties may give

rise to discipline without imposing any special burden of justification on the government employer." Id. at 466. Most

recently, in Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct.

2488 (2011), the Court spoke very directly to the facts of this

case, holding that a "petition filed with an employer using an

internal grievance procedure in many cases will not seek to

communicate to the public or to advance a political or social

point of view beyond the employment context." Id. at 2501.

The mere fact that "the public may always be interested in

how government officers are performing their duties . . . will

not always suffice to show a matter of public concern." Id. 

As the district court recognized, our court presaged these

recent instructions from the Supreme Court in earlier cases

applying Connick and Pickering. In Stroman v. Colleton

County School District, 981 F.2d 152 (4th Cir. 1992), we

stated that "[p]ersonal grievances [such as] complaints about

conditions of employment . . . do not constitute speech about

matters of public concern that are protected by the First

Amendment." Id. at 156. Similarly, in Goldstein v. Chestnut

Ridge Volunteer Fire Co., 218 F.3d 337 (4th Cir. 2000), we

held that "mere allegations of favoritism . . . and other complaints of interpersonal discord[ ] are not treated as matters of

public policy." Id. at 352. Thus, although this court has

declined to "articulate any sort of bright-line rule," Campbell

v. Galloway, 483 F.3d 258, 269 (4th Cir. 2007), we have been

wary of affording the broad cover of the First Amendment to

comments limited to "grievances about conditions of employment that cannot be considered matters of public concern," id.

at 267. It is against this backdrop that we must evaluate what

if any protection should be afforded to the plaintiffs’ speech

in this case.

BROOKS v. ARTHUR 7
B.

Examining Hamlette’s allegations, we conclude that his

speech pertained to personal grievances and complaints about

conditions of employment rather than broad matters of policy

meriting the protection of the First Amendment. As Connick

directs courts to look at the "content, form, and context" of

employee statements, Connick, 461 U.S. at 147, we shall take

them up in turn. 

Turning first to the content, Hamlette’s EEO complaint

focuses on personal dissatisfactions that are not matters of

public concern. Indeed, his complaint is replete with I’s and

me’s. First, in alleging that Major Mitchell mistreated him

during an investigation of an inmate’s possession of a cell

phone, Hamlette stated that Mitchell "really hurt me because

he was insinuating that if an inmate had told me where the

cell phone was that I would not have told them." Second, in

objecting to the dismissal of a complaint he had filed against

an inmate, Hamlette complained that "they did not want to set

too high a standard for the inmates, but the inmate disrespected me whether Major Mitchell thought so or not." Lastly,

Hamlette questioned "why the food service supervisor can be

disrespected enough to have an inmate locked up but when I

am disrespected the inmate walks or the charge is thrown

out."

None of these allegations addresses any public matter.

While Hamlette undoubtedly—and perhaps justifiably—felt

slighted by some of the alleged conduct, a purely personal

grievance is not a matter of public concern. At the very end

of Hamlette’s allegations in his internal EEO complaint, he

asks rhetorically whether the affronts of which he complained

resulted "because I am a minister or because I am the only

black lieutenant." As we shall explain, discriminatory institutional policies or practices can undoubtedly be a matter of

public concern. See infra Part II.C. The gravamen of this matter, however, remains a series of personal differences between

8 BROOKS v. ARTHUR
Hamlette and Mitchell over such things as Mitchell’s handling

of Hamlette’s complaint against an inmate or the treatment of

an inmate who cursed at a kitchen supervisor. What seems

clear is that Hamlette and Mitchell did not get along. Were we

to constitutionalize poor personal chemistry in the workplace,

however, we would, as the district court recognized, elevate

the infinitude of worker dissatisfactions with supervisors to a

constitutional plane. 

The Supreme Court has warned us to guard against "attempt[s] to constitutionalize the employee grievance." Connick,

461 U.S. at 154. Indeed, Hamlette’s comments fall squarely

within the framework that Connick established for complaints

of a purely private nature. First, Hamlette "did not seek to

inform the public that [the VDOC officers were] not discharging [their] governmental responsibilities." Id. at 148. Second,

he did not "seek to bring to light actual or potential wrongdoing or breach of public trust." Id. Third, Hamlette’s complaint,

"if released to the public, would convey no information at all

other than the fact that a single employee is upset with the status quo." Id.

The same conclusion obtains from the "form and context,"

id., of Hamlette’s complaint. As the Supreme Court has

emphasized, "[t]he forum in which a petition is lodged will be

relevant to the determination of whether the petition relates to

a matter of public concern." Guarnieri, 131 S. Ct. at 2501. In

Guarnieri, the Court applied Connick’s analysis of retaliation

claims under the Speech Clause of the First Amendment to

similar claims brought under the Petition Clause. Id. at 2500.

The Court stressed that the right of a public employee "to participate as a citizen, through petitioning activity, in the democratic process . . . is not a right to transform everyday

employment disputes into matters for constitutional litigation

in the federal courts." Id. at 2501. The Court reminded the

lower courts that a "petition filed with an employer using an

internal grievance procedure in many cases will not seek . . .

to advance a political or social point . . . beyond the employBROOKS v. ARTHUR 9
ment context." Id. The point of filing a claim through an internal employment dispute resolution system is to address "the

government in its capacity as the petitioners’ employer, rather

than its capacity as their sovereign." Id. at 2506 (Scalia, J.,

concurring in part and dissenting in part). And the relief such

a grievance process offers is typically redress of a "purely private concern, [for which] the employee’s First Amendment

interest must give way." Id. at 2500 (maj. op.). 

Thus it is quite relevant that Hamlette chose to make these

comments in the context of the VDOC EEO process. In contrast to a letter to a local newspaper, see Pickering, 391 U.S.

at 564, Hamlette’s speech through "an internal grievance procedure" demonstrates that he does "not seek to communicate

to the public or to advance a political or social point of view

beyond the employment context." Guarnieri, 131 S. Ct. at

2501. An employee like Hamlette who seeks primarily resolution of his personal situation through an employer-provided

grievance process simply does not speak with the civic intent

necessary to invoke the First Amendment.

C.

Our confidence in the conclusion that this speech was not

on a matter of public concern is bolstered by comparison of

the facts of this case to other decisions in which this court has

concluded that employee speech merited First Amendment

protection. 

First, in Cromer v. Brown, 88 F.3d 1315 (4th Cir. 1996),

this court concluded that a letter of complaint from an association of African-American law enforcement officers to their

supervising sheriff spoke to matters of public concern. Unlike

this case, the complaint in Cromer presented at least five

detailed allegations of systemic racial discrimination. See id.

at 1325 (listing "(1) ineffective minority recruitment efforts,

(2) lack of opportunity for black officers to cross-train in and

transfer into prestigious units, such as white collar and major

10 BROOKS v. ARTHUR
crimes, (3) lack of promotional opportunities for blacks and

loss of faith in the promotion process, (4) methods of investigation by the all-white internal affairs unit that caused racial

polarization, and (5) favoritism to white officers in the allocation of new equipment"). This court noted that these complaints of racial discrimination were not focused on a

particular individual’s situation, but rather "prompted an

expression of concern about the inability of the sheriff’s

office to carry out its vital public mission effectively." Id. at

1325-26. Similarly, the fact that the letter "was delivered in

the context or circumstance of a group complaint" emphasized the fact that it "was not the expression of a single disgruntled employee about a personal employment dispute." Id.

at 1326.

Here, while some of Hamlette’s complaints referred to the

disciplining of inmates, his concern was not expressed in

terms of a breakdown in effective prison management, but

rather focused on his personal displeasure with his supervisors. These highly individualized concerns stand in sharp contrast to the complaint in Cromer, which addressed

department-wide procedures, made outside an employee

grievance channel, and represented the concerns of a larger

group of officers within the department. 

Second, in Campbell v. Galloway, 483 F.3d 258 (4th Cir.

2007), we proceeded with some caution in evaluating a

female police officer’s allegations of sexual harassment and

gender discrimination, noting that "a complaint about sexual

harassment or discrimination is not always a matter of public

concern." Id. at 268. This court concluded, however, that

Campbell had met her burden under Connick because she

made both complaints as to matters of public safety, such as

"that male officers did not back her up on dangerous calls,"

id. at 269, and "complaints about inappropriate conduct

directed towards other female [officers]," id., and even toward

female "members of the public," id. at 270. And we emphasized that "Campbell did not bring the sexual harassment

BROOKS v. ARTHUR 11
issues to Chief Galloway’s attention in order to resolve her

own personal problem[, but] was seeking to challenge the

practice within the department as much as she was seeking a

resolution of her own complaint." Id. As noted, Hamlette’s

complaint could not be more different. He neither raised

issues of equivalent public import nor did he seek anything

other than an improvement of his own situation. 

Lastly, in Goldstein v. Chestnut Ridge Volunteer Fire Co.,

218 F.3d 337 (4th Cir. 2000), we concluded that a firefighter’s complaints about inadequate training and equipment

as well as unsafe procedures during emergency calls were

matters of public concern. Id. at 353. This court rejected,

however, the claim that Goldstein’s other complaints of favoritism, which are decidedly similar to those of Hamlette, were

of public interest. Like Hamlette, Goldstein alleged that his

captain discriminated in issuing crew suspensions and that

other policies were "enforced against some but not others." Id.

We dismissed these "matters of internal policy, favoritism,

and other employment-related matters" as "not of public concern." Id.

Read together, these portions of Goldstein and Campbell

serve as a useful guide, insofar as they illuminate the boundary between protected speech and personal grievance. Private

matters between employers and employees may be the subject

of internal controversy, but whether someone’s sense of fair

play is offended is not the constitutional inquiry. If favoritism

crosses a line to the point that imperils the public welfare,

such as Campbell’s allegation that she was inadequately supported on dangerous police assignments because she was

female, then the public would rightly be concerned about the

matter. But if favoritism pertains primarily to a single individual, as both here and in Goldstein, that is not an issue of constitutional dimension.

D.

This analysis applies with equal force to Brooks’ allegations of favoritism, which are of a similarly individualized

12 BROOKS v. ARTHUR
nature to those of Hamlette. But Brooks additionally claims

that he was entitled to First Amendment protection because he

was named as a potential witness in Hamlette’s EEO complaint. This contention is also without merit. Having determined, as discussed above, that Hamlette’s complaint was

intended solely to address his personal grievances and not any

matters of public concern, Brooks’ involvement in that complaint does not give rise to a First Amendment claim. See Arvinger v. Mayor of Baltimore, 862 F.2d 75, 79 (4th Cir. 1988).

This is not to say that we ignore the importance of protecting complainants and the witnesses they call during official

investigations. But as we noted in Arvinger, it falls to statutes,

not the First Amendment, to protect such speech. For example, 42 U.S.C. § 2000e-3(a) makes it unlawful to discriminate

against an employee because "he has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing." Id. But in the absence of such an "applicable statute or regulation," Connick, 461 U.S. at 146, the

Constitution by itself does not provide a warrant for "intrusive

oversight by the judiciary [of employment decisions] in the

name of the First Amendment." Id. We therefore affirm the

district court’s dismissal of Brooks’ First Amendment claim.2

III.

It is important to emphasize the precise nature of our holding. A variety of federal statutes and state law causes of action

may provide plaintiffs a proper avenue of redress. We do not

offer any view on the merits of plaintiffs’ claims, but rather

2Plaintiffs also appeal the district court’s dismissal of their state law

claim for tortious interference with contract. As the district court found,

however, Arthur was acting within the scope of his employment in terminating Brooks and Hamlette. Because Arthur was an agent of the VDOC,

he was not a third party capable of interfering with the contract between

plaintiffs and the VDOC. See Brooks v. Arthur, 2011 WL 3102791, at *15

(W.D. Va. 2011). We therefore affirm the district court’s dismissal of this

count. 

BROOKS v. ARTHUR 13
on the way they have chosen to press them. The most basic

teachings of the Supreme Court do not permit placement of

this case within a Connick framework. It is "no defeat for the

First Amendment," id. at 154, that we do not permit "every

criticism directed at a public official . . . [to] plant the seed

of a constitutional case." Id. at 163. The First Amendment’s

"aim is the full protection of speech upon issues of public

concern." Id. at 154. Viewed in the context of the employeegrievance system in which these claims were filed and in

comparison to pertinent precedents of both the Supreme Court

and this circuit, the personal character of the suit cannot be

gainsaid. We do not diminish the significance of personal

grievances to the parties involved—indeed the VDOC internally reversed the terminations of Hamlette and Brooks—but

private concerns are just that: significant chiefly to the parties

involved. The First Amendment demands more. In recognition of "the government’s interest in the effective and efficient

fulfillment of its responsibilities to the public," id. at 150, we

must respect the line the Supreme Court has drawn, and plaintiffs’ grievances clearly fall on the private side of it. 

The judgment of the district court is therefore

AFFIRMED.

14 BROOKS v. ARTHUR