UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KIMBERLY F. GODON,

Plaintiff-Appellant,

v.

NORTH CAROLINA CRIME CONTROL &

PUBLIC SAFETY; NORTH CAROLINA

TARHEEL CHALLENGE ACADEMY;

KENNETH STALLS, in his individual

No. 97-1458

and official capacities; DALE

AUTREY, in his individual and

official capacities; LESLIE T.

EVERETT, in his individual and

official capacities; STATE OF NORTH

CAROLINA,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, Chief District Judge.

(CA-96-804-5-BO)

Argued: March 4, 1998

Decided: April 23, 1998

Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and

CLARKE, Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

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Affirmed in part, reversed in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

ARGUED: Marvin Schiller, Raleigh, North Carolina, for Appellant.

Isaac T. Avery, III, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for

Appellees. ON BRIEF: Reuben F. Young, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,

North Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Kimberly F. Godon sued the Tarheel Challenge Academy and other

defendants alleging that her discharge from the Academy violated her

constitutional rights, Title VII, and North Carolina law. The district

court dismissed Godon's federal claims, declined to exercise jurisdiction over her state claims, and denied Godon leave to amend her complaint. We affirm in part, reverse in part, and remand the case to the

district court.

I.

Godon appeals a decision granting defendants' motion to dismiss,

so we accept as true the facts alleged in the complaint. McNair v.

Lend Lease Trucks, Inc., 95 F.3d 325, 327 (4th Cir. 1996) (en banc).

The Tarheel Challenge Academy, a division of the North Carolina

Department of Crime Control and Public Safety, provides teaching

and training in a boot camp environment to former high school dropouts, known as cadets. Cadets, whose ages range between sixteen and

nineteen, attend the Academy in order to receive a general equivalency diploma. As a team leader employed by the Academy, Godon

supervised the training of the cadets.

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In April 1995, Godon complained to Kenneth Stalls, Assistant

Director of the Academy, and Dale Autrey, Assistant Commandant,

about their discriminatory treatment of black and female cadets.

Godon protested that Stalls and Autrey were terminating black and

female cadets without cause while permitting white male cadets to

remain at the Academy even when they had committed offenses warranting termination. Godon was fired from the Academy on approximately May 17, 1995.

Godon filed suit against Stalls, Autrey, Leslie Everett (Director of

the Academy), the Academy, the Department of Crime Control and

Public Safety, and the State of North Carolina. Godon claimed that

she was discharged in retaliation for her complaints in violation of the

United States Constitution, Title VII, and North Carolina law. She

sought compensatory and punitive damages, reinstatement to her former position, and other relief. The district court dismissed Godon's

federal claims, declined to exercise supplemental jurisdiction over her

state claims, and denied Godon's motion for leave to amend her complaint. Godon now appeals the dismissal of her federal claims and the

denial of leave to amend her complaint.

II.

We first turn to Godon's claim that her discharge violated her First

Amendment rights. The district court held that Godon's complaint

failed to state a claim because her speech did not address a matter of

public concern but merely expressed her personal dissatisfaction with

defendants' disciplinary practices. We conclude that the complaint,

though vague, states a claim under the First Amendment; we must

therefore reverse the district court's dismissal of this claim.

To state a claim for retaliatory discharge under the First Amendment, a plaintiff must satisfy a three-part test. First, the employee

must be speaking "as a citizen upon matters of public concern" and

not "as an employee upon matters only of personal interest." Connick

v. Myers, 461 U.S. 138, 147 (1983); accord DiMeglio v. Haines, 45

F.3d 790, 805 (4th Cir. 1995). Second, the employee's interest in

speaking upon the matter must outweigh "the government's interest

in the effective and efficient fulfillment of its responsibilities to the

public." Connick, 461 U.S. at 150; accord Stroman v. Colleton

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County Sch. Dist., 981 F.2d 152, 156 (4th Cir. 1993). Finally, the

employee's speech must have been a substantial factor in the employer's termination decision. Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 287 (1977); Hanton v. Gilbert, 36 F.3d 4, 7 (4th

Cir. 1994).

Both the Supreme Court and this circuit have observed that an

employee's complaints of discrimination can be speech on a matter

of public concern. See Connick, 461 U.S. at 146; Cromer v. Brown,

88 F.3d 1315, 1326 (4th Cir. 1996). Godon's complaint alleges that

she spoke with both Stalls and Autrey "about their discriminatory

treatment of female and black cadets" at the Academy. Compl. ¶ 14.

Specifically, she protested that they were "discriminatorily and disproportionately terminating female and black cadets without cause

while permitting white male cadets to remain enrolled in the program

even when they committed infractions sufficiently severe for them to

be terminated from the program." Id.

The district court looked beyond the content of Godon's criticisms

and found that they did not address a matter of public concern

because of the form and context in which Godon made them. We

agree that, in addition to content, the form and context of an employee's speech are important factors in determining whether it is entitled

to First Amendment protection. Connick, 461 U.S. at 147-48; Hall v.

Marion Sch. Dist. No. 2, 31 F.3d 183, 192 (4th Cir. 1994). However,

those factors are of limited utility at this stage because Godon's complaint offers only scant details about the form and context of her criticisms. The complaint merely alleges that Godon raised her concerns

with Stalls and Autrey. That Godon chose to raise them with her

employer rather than the public does not automatically deprive her

speech of all constitutional protection. Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 415-16 (1979). Thus, we cannot conclude that Godon's complaints of discrimination, though raised

internally, could never address a matter of public concern.

Defendants contend that, even if Godon's speech may have

addressed a matter of public concern, it is apparent from the complaint that their interest in the effective provision of services at the

Academy outweighs Godon's interest in speaking. Specifically, they

claim that Godon's criticisms threatened to disrupt the Academy's

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boot camp environment that depended on a high degree of discipline

and the absence of dissent.

Defendants' argument may ultimately prove persuasive, but it cannot prevail at this very early stage. "A government employer, no less

than a private employer, is entitled to insist upon obedience to the

legitimate, day-to-day decisions of the office without fear of reprisal

in the form of lawsuits from disgruntled subordinates who believe that

they know better than their supervisors how to manage office affairs."

DiMeglio, 45 F.3d at 806. And the employer does not have "to allow

events to unfold to the extent that the disruption of the office and the

destruction of working relationships is manifest before taking action."

Connick, 461 U.S. at 152 (footnote omitted). The complaint, however,

does not reveal the manner, time, place or context in which the present disagreement arose. See id. at 153 (finding the manner, time,

place, and context of the statements relevant to the balancing test). As

a result, we cannot yet ascertain whether and to what extent Godon's

protests were actually or potentially disruptive of the Academy's

mission.1

Finally, Godon's complaint sufficiently alleges that her speech was

a substantial factor in her discharge. The complaint avers that the reasons given in Godon's discharge letter "were false and a pretext for

Defendants' retaliation for Plaintiff's aforesaid statements." Compl.

¶ 15. It further maintains that Godon "was discharged from her

employment . . . as a consequence of the exercise of her freedom of

speech under the 1st and 14th Amendments to the United States Con-

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1 For similar reasons, at this stage we also cannot entertain the individual defendants' claims of qualified immunity. Defendants contend, and

we agree, that qualified immunity often will shield parties from liability

for First Amendment retaliation claims "because the relevant inquiry

requires a `particularized balancing' that is subtle, difficult to apply, and

not yet well-defined." DiMeglio, 45 F.3d at 806 (citations omitted);

accord Cromer, 88 F.3d at 1330 n.11. Absent a more complete record,

however, we cannot apply that balancing test and determine whether a

reasonable official would have known that firing Godon violated a

clearly established constitutional right. Once that record is developed, the

district court may determine the immunity question.

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stitution." Id. ¶ 18. In sum, Godon's complaint states a claim of retaliation in violation of her First Amendment rights. 2

In holding only that Godon's complaint survives a motion to dismiss under Rule 12(b)(6), we offer no opinion on whether the claim

will ultimately prove to be meritorious or on whether it should proceed to trial. On remand and after discovery, the district court must

determine whether issues of triable fact exist on the elements of plaintiff's claim.

III.

We next consider Godon's Title VII claims. Godon contends that

her complaint states claims of retaliatory discharge and sex discrimination in violation of Title VII. The district court held that no factual

allegations in the complaint supported these claims. We agree that

Godon's complaint fails to state a violation of Title VII and therefore

affirm the district court's dismissal of these claims.

We first turn to Godon's retaliation claim. In relevant part, Title

VII prohibits employers from discriminating against employees

because they have "opposed any practice made an unlawful employment practice." 42 U.S.C. § 2000e-3(a). To state a prima facie case

of retaliation, an employee must show that (1) she engaged in protected activity; (2) the employer took an adverse employment action

against her; and (3) a causal connection exists between the protected

activity and the adverse action. Hopkins v. Baltimore Gas & Elec.

Co., 77 F.3d 745, 754 (4th Cir. 1996); McNairn v. Sullivan, 929 F.2d

974, 980 (4th Cir. 1991). Godon's complaint, however, nowhere

alleges that she opposed an employment practice at the Academy.

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2 In the district court Godon sought to amend her complaint primarily

to add allegations about Everett's involvement in her discharge. The district court denied her leave to amend her complaint on the ground that

amendment would be futile and would not affect the court's legal analysis. We generally defer to district court decisions about whether leave to

amend should be granted. National Bank of Wash. v. Pearson, 863 F.2d

322, 327 (4th Cir. 1988). In light of our disposition of Godon's First

Amendment claim, we believe the district court should reconsider

whether to allow Godon to amend her complaint.

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Rather, it states merely that she disagreed with certain disciplinary

practices, namely the expulsion of cadets. Godon's protests, therefore,

do not constitute a protected activity within the meaning of Title VII.

Her complaint thus fails to state a Title VII retaliation claim.

Nor does her complaint state a claim of sex discrimination. To do

so, an employee must show that the employer discriminated with

respect to the "compensation, terms, conditions, or privileges of

employment, because of such individual's . . . sex." 42 U.S.C.

§ 2000e-2(a)(1). Godon's complaint does not aver that anyone at the

Academy discriminated against Godon, nor does it mention any facts

that might give rise to any inference of discrimination. See Karpel v.

Inova Health Sys. Servs., 134 F.3d 1222, 1227-28 (4th Cir. 1998).

Moreover the allegations supporting Godon's free speech claim --

that she was discharged because of her complaints -- undercut any

argument that she was discharged because of her sex. In sum,

Godon's complaint does not support -- and indeed undermines -- her

claim that her employer discriminated against her because of her sex.

Accordingly, the district court properly dismissed this claim.

IV.

In summary, we reverse the district court's dismissal of Godon's

First Amendment claim. We affirm its dismissal of the Title VII

claims. The case is remanded for further proceedings consistent with

this opinion.

AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED

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