UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BUFORD T. MYERS,

Plaintiff-Appellee,

v.

TOWN OF LANDIS; GENE R. BEAVER,

No. 96-1433

in his official capacity as Mayor of

the Town of Landis and in his

individual capacity,

Defendants-Appellants.

Appeal from the United States District Court

for the Middle District of North Carolina, at Salisbury.

Frank W. Bullock, Jr., Chief District Judge.

(CA-94-700-4)

Argued: December 5, 1996

Decided: February 20, 1997

Before HALL and NIEMEYER, Circuit Judges, and DAVIS,

United States District Judge for the District of Maryland,

sitting by designation.

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Affirmed in part, dismissed in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

ARGUED: James Redfern Morgan, Jr., WOMBLE, CARLYLE,

SANDRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina,
for Appellants. Robert Mauldin Elliott, ELLIOTT, PISHKO, GELBIN & MORGAN, P.A., Winston-Salem, North Carolina, for Appellee. ON BRIEF: David C. Pishko, ELLIOTT, PISHKO, GELBIN &

MORGAN, P.A., Winston-Salem, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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:

In this civil rights action for damages and injunctive relief, the

town of Landis, North Carolina, and its ex-mayor, Gene R. Beaver,

jointly appeal the interlocutory order of the district court denying

Beaver qualified immunity as to the claim by former town employee

Buford T. Myers that Beaver, acting in his individual capacity, violated Myers's First Amendment right to speak freely. We hold that,

insofar as this appeal has been taken by the town, it must be dismissed. With respect to that portion of the appeal properly before us,

we affirm the district court's decision, and we remand the case for

further proceedings.

I.

Landis is a small town of approximately 2,300 persons. Beaver,

who had previously served as mayor from 1969-79, was again elected

to the position in 1987, and his second tenure in office lasted until

1995. In July 1989, Myers, a mechanic with the town's Department

of Public Works, and Willie Deadmon, the Director of Public Works,

complained to Bobby Gene Brown, a town alderman, that Beaver had

misappropriated town property and labor for private purposes. These

three, along with three other Public Works Employees, met with the

County District Attorney concerning the allegations.

The DA asked the State Bureau of Investigation to look into the

matter; the SBI complied, assigning Agent J.W. Bryant to the case.

Bryant began his investigation by interviewing Beaver's accusers.

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On August 3, 1989, as Bryant was concluding his initial interviews

of Deadmon and Myers at the Public Works building, Beaver arrived.

When he saw Bryant, Beaver became angry, and he instructed the

agent not to speak with town employees during working hours. After

Bryant left, Beaver asked Deadmon and Myers to disclose the substance of the interviews, but, pursuant to the agent's instructions, both

remained mum.

A few weeks later, Deadmon was notified that his termination had

been proposed, ostensibly because of complaints from several citizens

that he had been discourteous to them. On September 5, 1989, at its

regular monthly meeting, the town's Board of Aldermen discussed

whether it should dismiss Deadmon.

At the outset of the meeting, Myers was permitted to read aloud a

lengthy, rambling statement that had been signed by twelve thencurrent and former town employees. In essence, the statement voiced

the signatories' views that (1) Deadmon had been"railroaded on a

bunch of dreamed up charges," as the result of his cooperation with

the SBI; (2) town employees had once been unlawfully banned from

an open Board meeting; (3) Beaver had cursed employees and private

citizens alike; (4) Beaver had made, and would make, hiring and other

employment decisions for the town based on his perception of the

particular employee's or prospective employee's political allegiance;

(5) Beaver and two other aldermen had conducted a secret, illegal

Board meeting; and (6) legal proceedings against the town could be

instituted as the result of Beaver's perceived transgressions. The statement also referred vaguely to employee "benefits" that Beaver had

caused to be cut, observing that the town had suffered from the resulting attrition in personnel.

Later that evening, the Board convened an executive session, during which Deadmon's future as a town employee was discussed. The

aldermen split 2-2 on whether to terminate Deadmon's employment,

with Brown voting in the negative. Beaver broke the tie, voting to dismiss Deadmon.

The SBI submitted a final report of its investigation on October 16,

1989. The supervising agent noted that the DA, upon reviewing the

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case report, had advised the Bureau that he "did not see any prosecutable offense(s)."

About a year later, the town hired another mechanic, and Myers

was reassigned to general labor tasks. In the fall of 1991, the Board

voted to reclassify the town's employees according to the duties they

performed. Myers was reclassified as a "waste collector," and his pay

was cut from $12.68 to $7.03 per hour. In June 1993, Myers was

assigned to the mowing crew, on which he spent approximately onethird of his time.

On March 7, 1994, the Board voted to hire a private company to

do the town's mowing; it then decided to terminate Myers, effective

March 31, 1994. Beaver presided over and participated in both the

1991 and 1994 meetings, during which the Board discussed and voted

on Myers's reclassification and, ultimately, his dismissal. On neither

occasion, however, was the Board deadlocked, which would have

required Beaver to cast his vote to break the tie.

Myers filed this action in state court on November 3, 1994, pursuant to 42 U.S.C. § 1983. The complaint named the town and Beaver

as defendants, and it purported to sue Beaver in both his official and

individual capacities. Myers alleged that the defendants had taken the

several adverse employment actions against him because he had spoken ill of Beaver to Bryant and had spoken against Beaver at the

Board meeting. According to Myers, the defendants' actions had

impermissibly abridged his freedom of speech as secured to him by

the First Amendment. Myers contended further that the defendants

had infringed on his right to free speech under the state constitution,

had denied to him his federal and state due process rights, and had

wrongfully discharged him in contravention of a state "whistleblower" statute.

The defendants removed the case to the district court on November

30, 1994, and they moved for summary judgment as to all claims. On

March 22, 1996, the district court issued a memorandum opinion and

order granting summary judgment to both defendants on Myers's substantive due process claims.1 The court also granted summary judg-

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1 Myers had previously stipulated to having some of his other claims

dismissed with prejudice, including those alleging the violation of his

procedural due process rights.

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ment to Beaver as to the state free-speech and wrongful discharge

claims against him in his individual capacity.

The district court, however, denied Beaver's motion for summary

judgment as to the First Amendment claim against him in his individual capacity, ruling that he was not entitled to qualified immunity for

his alleged actions. The court likewise denied summary judgment to

the town on the First Amendment claim, as well as the state freespeech and wrongful discharge claims.2 Beaver and the town timely

filed a joint appeal.

II.

A.

The district court ruled that all of the prerequisites had been met

to allow a trial of Myers's First Amendment claim against Beaver in

his individual capacity. The court held, as a matter of law, (1) that

Myers's "speech," both to Bryant and before the Board, addressed, at

its core, matters of public concern, see Pickering v. Board of Educ.,

391 U.S. 563, 574 (1968); and (2) that the town's interest in "the

effective and efficient fulfillment of its responsibilities to the public,"

Connick v. Myers, 461 U.S. 138, 150 (1983), was at its ebb in this

case, inasmuch as Myers's and Beaver's respective positions within

the government engendered no need for them to cultivate a close

working relationship, and any significant impairment of employee

morale or of any governmental function was not to be reasonably

apprehended as the result of Myers's speech.

The foregoing circumstances, according to the district court, compelled it to conclude that Myers's constitutional right to speak out was

a clearly established one, of which Beaver should have known. Thus,

the court reasoned, Beaver could not avail himself of the defense of

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2 In addition, the district court denied summary judgment to Beaver on

the three surviving claims insofar as they alleged him to be liable in his

official capacity. The court correctly recognized these claims to be duplicative of those against the town. See Kentucky v. Graham, 473 U.S. 159,

165-66 (1985).

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qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).3

Our review of the record reveals no error in the district court's

analysis. We therefore affirm that court's decision to allow Myers to

proceed to trial on his First Amendment claim against Beaver individually, for the reasons stated in its memorandum opinion. Myers v.

Town of Landis, et al., No. CA-94-700-4 (M.D.N.C., Mar. 22, 1996).

B.

We are constrained, however, to remark further on one aspect of

the district court's qualified immunity analysis upon which it chose

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3 See also Cromer v. Brown, 88 F.3d 1315, 1325 (4th Cir. 1996) (recognizing that, under Pickering and Connick, analyzing whether the right to

engage in particular speech is clearly established, giving rise to a constitutionally protected interest, is, at the threshold, a two-step process);

DiMeglio v. Haynes, 45 F.3d 790, 794-95 n.1 (4th Cir. 1995) (upon

determining that the plaintiff has alleged that a clearly established right

has been violated, a court must then decide whether a reasonable public

official would have known that his actions violated that right).

Myers, of course, is also charged with showing that Beaver actually

caused any or all of the adverse employment actions to have been taken

against him. In addition, Myers bears the initial burden of demonstrating

that the exercise of his right to speak freely was a"motivating factor" in

Beaver's decision to act against him. Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 287 (1977). Finally, though causation be

proved to the extent described above, Beaver cannot be held liable if

Myers would have been transferred, demoted, or dismissed even in the

absence of the protected conduct. Id. The district court concluded that the

evidence raised a triable dispute concerning the extent of Beaver's influence over Board decisions, his ongoing animus toward Myers, and the

possibility that the adverse employment actions of which Myers complains would have been taken in any event. See Fed. R. Civ. P. 56(c)

(summary judgment appropriate only where the pleadings, depositions,

affidavits, and other materials on file "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"). Beaver does not challenge the lower court's findings

on this interlocutory appeal. See Johnson v. Jones, 115 S. Ct. 2151, 2156

(1995).

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not to expound; though the point was largely ignored below, Beaver

has made it the cornerstone of his appeal. Beaver's argument relates

to the threshold Pickering determination, which the Supreme Court

has said implicates "the right of a public employee as a citizen, [to]

comment[ ] upon a matter of public concern." Connick, 461 U.S. at

143. We have recently isolated the "as a citizen" portion of the above

language to urge district courts in this circuit to evaluate not only the

content of the speech at issue to determine whether it addresses a matter of public concern, but also to consider the context in which the

speech is communicated. DiMeglio, supra note 3, at 805.

In DiMeglio, we opined that remarks made by a zoning inspector

at a citizens' meeting may not have been constitutionally protected,

because the inspector admitted that he attended the meeting as the

official representative of the county zoning office"in the good-faith

performance of his public duties." Id. We noted some uncertainty in

the law as to whether a public employee's statement,"spoken within

his public role and concerning a matter within the scope of his responsibilities, [are] protected expressions upon which a retaliation claim

[can] be based." Id. We observed that this uncertainty could, in an

appropriate case, preclude the possibility that a public employee --

speaking merely as an employee -- possessed a clearly established

right to speak in a fashion inimical to his employer. Id.

DiMeglio simply has no application here. A town mechanic, unlike

a county zoning inspector, need not interact meaningfully with the citizenry in order to adequately perform his public duties. Whereas a

zoning inspector is often required to exit the more familiar confines

of his office and conduct on-site examinations, attend citizens' meetings, or otherwise actively associate with the public at large, the occupation of mechanic entails no similar responsibilities; his "public

role," to the extent that it may exist, is exceedingly limited.

It is plain that Myers spoke to the SBI as a concerned citizen, and

not because his job required him to do so. His remarks before the

Board, though echoing the sentiments of others, were also made in his

role as citizen. Both instances of speech addressed matters of public

concern, and, absent a sufficiently important governmental interest in

denying him a voice, Myers was entitled to the protection of the First

Amendment.

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C.

Beaver takes the rather bizarre position that, inasmuch as he may

have been entitled to legislative immunity for his role in Board discussions preceding votes that ultimately resulted in adverse employment actions being taken against Myers, see Section I, supra, his

reasonable belief that he was immune as a legislator somehow confers

on him qualified immunity for his personal acts. This argument was

not raised below, and, in any event, it wholly ignores that Myers has

alleged (and has produced some evidence) that Beaver held considerable sway over the Board, effectively making its actions his own. See

note 3, supra.

III.

The town urges that we exercise our pendent appellate jurisdiction

to reverse the district court's denial of summary judgment as to the

remaining claims against it, insisting that those claims are "inextricably intertwined" with the district court's decision to deny Beaver

qualified immunity. See Swint v. Chambers County Comm'n, 115 S.

Ct. 1203, 1212 (1995); Taylor v. Waters, 81 F.3d 429, 437 (4th Cir.

1996).

We disagree. We would not consider supplemental state law claims

brought against the lone defendant in Taylor, and we are especially

reluctant to extend our jurisdiction over interlocutory appeals of denials of qualified immunity to Section 1983 co-defendants who may not

even avail themselves of the defense. We therefore dismiss this

appeal to the extent that it has been taken by the town.

IV.

The district court's order denying summary judgment to Beaver is

affirmed. The town's appeal is dismissed, and the case is remanded

to the district court for further proceedings.

AFFIRMED IN PART, DISMISSED IN PART,

AND REMANDED

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