Sean Smith v. Peter Gilchrist, III

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-2503

SEAN P. SMITH,

Plaintiff - Appellant,

v.

PETER S. GILCHRIST, III,

Defendant - Appellee.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad,

Jr., District Judge. (3:10-cv-00636-RJC-DLH)

Argued: March 18, 2014 Decided: May 14, 2014

Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS,

Senior Circuit Judge.

Reversed and remanded by published opinion. Chief Judge Traxler

wrote the opinion, in which Judge Duncan and Senior Judge Davis

joined.

ARGUED: Matthew Robert Arnold, James Bradley Smith, ARNOLD &

SMITH, PLLC, Charlotte, North Carolina, for Appellant. Grady L.

Balentine, Jr., NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,

North Carolina, for Appellee. ON BRIEF: Roy Cooper, Attorney

General, Kathryn H. Shields, NORTH CAROLINA DEPARTMENT OF

JUSTICE, Raleigh, North Carolina, for Appellee.

TRAXLER, Chief Judge:

Sean P. Smith appeals a district court order granting

summary judgment against him in his § 1983 action alleging that

he was fired for exercising his free-speech rights in violation

of the United States and North Carolina Constitutions.

Concluding that the district court erred in granting summary

judgment, we reverse and remand for trial.

I.

Smith was employed as an assistant district attorney

(“ADA”) for the Mecklenburg County, North Carolina, District

Attorney’s office (the “DA’s office”) from 2004 through July

2010. In his last several years with the DA’s office, he worked

on the crimes-against-persons team. Peter Gilchrist was the

elected district attorney (“DA”) during Smith’s tenure.

In February 2010, Smith met with Gilchrist to notify him of

his intention to declare his candidacy for the office of

Mecklenburg County district court judge. Gilchrist initially

told Smith that to run for the office he would need either to

resign from his position as ADA or take an unpaid leave of

absence until the November election. However, Smith later

brought to Gilchrist’s attention the existence of North Carolina

General Statute § 126-13(b), which Smith interpreted as

entitling him to run without resigning from his position as an

ADA. As a result, Gilchrist reconsidered and informed Smith

2

that he could run for judge without resigning or taking a leave

of absence. Smith subsequently formalized his candidacy.

A few months later, on his own time and at his own expense,

Smith attended a four-hour defensive-driving course in Charlotte

that the nonprofit Safety and Health Council of North Carolina

(“SHC”) offered to ticketed drivers. 1 According to Smith,

ticketed drivers would receive a pamphlet about the course from

the ticketing police officer. Drivers who took the course were

required to pay court costs and pay $60 to the driving school,

but they received a “prayer for judgment continued” (“PJC”) and

were not assessed a fine. 2 This program substantially reduced

the number of cases that the DA’s office and the courts were

required to handle, freeing up resources that could be used for

other matters.

1

SHC is a 501(c)(3) entity independent from the DA’s

office. See 26 U.S.C. § 501(c)(3).

2

“Under North Carolina law, ‘prayer for judgment continued’

is one of several ways in which a court may direct that judgment

be handled following a conviction by verdict or guilty plea.”

Evans v. UDR, Inc., 644 F. Supp. 2d 675, 687 n.3 (E.D.N.C.

2009). “The term refers specifically to deferral of court

action on the state’s request for entry of judgment, the final

order in a case which would include the sentence being imposed

on the defendant.” Id. A PJC for a moving traffic violation

will not result in an increase in a driver’s insurance premium

unless the driver or someone in his household has received a PJC

for a moving traffic violation in the prior three years. See

N.C.G.S. § 58-36-75(f). A PJC will also not result in points on

the driver’s driving record so long as the driver has not

received two other PJCs during the preceding five years. See

N.C.G.S. § 20-4.01(4a)(a)(4).

3

On Friday, July 9, 2010, Smith gave an on-camera interview

to the Charlotte FOX television affiliate detailing concerns he

had about the defensive-driving course. Smith gave the

interview as a part of his judicial campaign, and it was not

related to his responsibilities as an ADA in the crimes-against-

persons team, which did not include anything “related to traffic

court.” J.A. 131. The following Wednesday, Gilchrist, having

been contacted by the interviewer for a reaction to the

criticism by one of his ADAs regarding the course, called Smith

to ask if he had given the interview. When Smith said he had,

Gilchrist asked him to come to his office immediately. Smith

then met with Gilchrist and Deputy DA Bart Menser in Gilchrist’s

office, whereupon the three engaged in a brief conversation.

Gilchrist had not seen the interview. Rather, Smith’s

description of the interview during this meeting was the sole

basis for Gilchrist’s knowledge of what Smith had said. Smith

told Gilchrist that he gave the interview as part of his

campaign for judge, and according to Gilchrist, Smith voiced

three concerns: first, that the students of the course were not

paying attention; second, that law enforcement officers were

giving legal advice to ticketed drivers regarding whether they

should take the course; and third, that some drivers who decided

to take the course and receive PJCs were harming themselves by

losing the option to obtain a PJC for a future citation.

4

Gilchrist testified that none of these concerns “had to do with

Mecklenburg County District Attorney policy.” J.A. 126; see

also J.A. 128 (Gilchrist’s testimony that Smith in the interview

“did not criticize any of [Gilchrist’s] policies.”).

In addition to discussing what Smith had said during the

interview, Smith, Gilchrist, and Menser also discussed Smith’s

views generally regarding the defensive-driving program.

According to Menser, Smith explained to Gilchrist and Menser

that Smith “had issues with the driving school and with the fact

that the District Attorney’s Office was involved in recommending

that people go to the driving school.” J.A. 148. Menser

testified that Smith told Gilchrist and Menser that Smith

“didn’t think the driving school was a good idea.” J.A. 148.

At the end of the conversation, Menser asked Smith if there

were any other policies of the DA’s office with which he

disagreed. 3 Gilchrist testified that Smith said that there were,

but when Smith was asked to identify the specific policies,

Smith said, “I decline to answer.” J.A. 60 (internal quotation

marks omitted). The following day, Gilchrist terminated Smith’s

employment. He did not provide Smith with any reason for the

termination. He testified, however, that Smith’s refusal to

identify the DA’s office policies with which he disagreed was

3

Gilchrist testified that Smith was not “involved in

formulating any . . . office policies.” J.A. 77.

5

the sole reason he was terminated. Gilchrist testified that he

considered that refusal to be “insubordinate.” J.A. 60.

Smith subsequently brought an action in federal district

court seeking money damages against Gilchrist in his individual

capacity. See 42 U.S.C. § 1983. Smith alleged that the

statements he made during the television interview were a

substantial motivation for Gilchrist’s decision to fire him and

that the firing violated his free-speech rights under the United

States and North Carolina constitutions. In his answer to the

complaint, as is relevant here, Gilchrist denied firing Smith

for making the statements during the interview, and he asserted

public-official and qualified immunity.

Following discovery, Gilchrist moved for summary judgment,

arguing only that Smith had failed to forecast evidence creating

a genuine issue regarding whether the interview was a

substantial motivation for Gilchrist’s decision to fire Smith.

After Smith filed a response challenging the asserted lack of

evidence, and Gilchrist filed a reply, the district court sua

sponte requested that the parties brief an issue not previously

argued by Gilchrist – whether qualified immunity provided an

absolute defense to Smith’s claims. 4 In response to the district

4

We recognize that Gilchrist did not argue he was entitled

to qualified immunity in his motion for summary judgment and

(Continued)

6

court’s direction, Gilchrist again focused on the asserted lack

of evidence that Smith’s public statements were a substantial

motivation for his firing. Gilchrist agreed that “[i]t is

uncontested that [Smith] was speaking as a citizen on a matter

of public concern, and there are no relevant facts to challenge

finding that [Smith’s] interest in speaking outweighed the

government’s interest in providing effective and efficient

services to the public.” J.A. 296. Nevertheless, Gilchrist

presented the argument that even assuming Smith had created a

jury issue regarding causation, Gilchrist was entitled to

qualified immunity based on the subtlety of the test for

determining whether an employee’s interest in speaking as a

private citizen on a matter of public concern is outweighed by

the employer’s interest in efficiency. See DiMeglio v. Haines,

45 F.3d 790, 806 (4th Cir. 1995) (“[O]nly infrequently will it

be clearly established that a public employee’s speech on a

matter of public concern is constitutionally protected, because

the relevant inquiry requires a particularized balancing that is

subtle, difficult to apply, and not yet well-defined.” (internal

quotation marks omitted)). Gilchrist contended that because

Smith’s “interview criticized the policies of the office for

that he advanced it only in response to the direction by the

district court.

7

which he worked,” a reasonable official in the DA’s position

might have believed he was constitutionally justified in firing

Smith for making the statements. J.A. 299. In Smith’s

supplemental brief, as is relevant here, Smith noted that

Gilchrist had conceded that the statements were protected, and

Smith repeated his view that there was a genuine factual issue

regarding Gilchrist’s motivation for firing him.

The district court then granted summary judgment to

Gilchrist. See Smith v. Gilchrist, No. 3:10-cv-636-RJC-DLH,

2012 WL 5985487 (W.D.N.C. Nov. 28, 2012). In so doing, the

court assumed that Smith had created a jury issue regarding

whether his constitutional rights had been violated, but

concluded that Gilchrist was entitled to qualified immunity

because a reasonable official in Gilchrist’s position could have

believed that the interest of the DA’s office as employer in

suppressing Smith’s speech outweighed Smith’s interest in

speaking as a citizen on a matter of public concern. See id. at

*9-11. The court concluded that the same reasons entitled

Gilchrist to public-official immunity on the state-law claim.

See id. at *12.

II.

Smith first argues that the district court erred in

granting summary judgment against him on his First Amendment

claim. We agree.

8

“We review a district court’s decision to grant summary

judgment de novo, applying the same legal standards as the

district court and viewing all facts and reasonable inferences

therefrom in the light most favorable to the nonmoving party.”

T–Mobile Ne. LLC v. City Council of Newport News, 674 F.3d 380,

384–85 (4th Cir. 2012) (internal quotation marks omitted).

Summary judgment is appropriate “if the movant shows that there

is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a).

“The doctrine of qualified immunity protects government

officials from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Stanton v. Sims, 134 S. Ct. 3, 4 (2013) (per curiam)

(internal quotation marks omitted). Thus, “in gray areas, where

the law is unsettled or murky, qualified immunity affords

protection to a government official who takes an action that is

not clearly forbidden—even if the action is later deemed

wrongful.” Occupy Columbia v. Haley, 738 F.3d 107, 118 (4th

Cir. 2013) (alteration and internal quotation marks omitted).

“We do not require a case directly on point” in order to

conclude that the law was clearly established, “but existing

precedent must have placed the statutory or constitutional

9

question beyond debate.” Ashcroft v. al-Kidd, 131 S. Ct. 2074,

2083 (2011).

To survive a claim of qualified immunity, a plaintiff must

satisfy the following two-prong test: “(1) the allegations

underlying the claim, if true, substantiate [a] violation of a

federal statutory or constitutional right; and (2) this

violation was of a clearly established right of which a

reasonable person would have known.” Ridpath v. Board of

Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006)

(internal quotation marks omitted). The Supreme Court has

observed that the outcome of the “clearly established” test

“depends largely upon the level of generality at which the

relevant legal rule is to be identified.” Wilson v. Layne, 526

U.S. 603, 614 (1999) (internal quotation marks omitted). For

that reason, “the right allegedly violated must be defined at

the appropriate level of specificity before a court can

determine if it was clearly established.” Id. at 615.

Here, Smith has alleged a violation of his First Amendment

rights to free speech. The First Amendment to the United States

Constitution, in relevant part, provides that “Congress shall

make no law . . . abridging the freedom of speech.” U.S. Const.

amend. I. The Fourteenth Amendment makes this prohibition

applicable to the states. See Fisher v. King, 232 F.3d 391, 396

(4th Cir. 2000). Not only does the First Amendment protect

10

freedom of speech, it also protects “the right to be free from

retaliation by a public official for the exercise of that

right.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th

Cir. 2000). “Protection of the public interest in having debate

on matters of public importance is at the heart of the First

Amendment.” McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998).

At the same time, the government, as an employer, “is entitled

to maintain discipline and ensure harmony as necessary to the

operation and mission of its agencies. And for this purpose,

the government has an interest in regulating the speech of its

employees.” Id. (citation omitted).

The Supreme Court in Connick v. Myers, 461 U.S. 138 (1983),

and Pickering v. Board of Education, 391 U.S. 563 (1968), has

explained how the rights of public employees to speak as private

citizens must be balanced against the interest of the government

in ensuring its effective and efficient operation. In light of

these competing interests, we have held that in order for an

adverse employment action to violate a public employee’s First

Amendment rights to freedom of speech, it must be the case (1)

that the employee “was speaking as a citizen upon a matter of

public concern” rather than “as an employee about a matter of

personal interest”; (2) that his “interest in speaking upon the

matter of public concern outweighed the government’s interest in

providing effective and efficient services to the public”; and

11

(3) that his “speech was a substantial factor” in the employer’s

decision to take action against him. McVey, 157 F.3d at 277–78.

This appeal concerns the second prong of the McVey test –

“whether the employee’s interest in speaking upon the matter of

public concern outweighed the government’s interest in providing

effective and efficient services to the public.” Id. at 277.

That Smith was speaking on matters of public concern during the

interview is clear and is not challenged by Gilchrist. See

Urofsky v. Gilmore, 216 F.3d 401, 406-07 (4th Cir. 2000) (en

banc) (“Speech involves a matter of public concern when it

involves an issue of social, political, or other interest to a

community.”). That ticketed drivers are not paying attention in

their defensive driving class is of obvious interest to the

community, see Goldstein v. Chestnut Ridge Volunteer Fire Co.,

218 F.3d 337, 353 (4th Cir. 2000) (explaining that statements

“relating to public safety are quintessential matters of ‘public

concern’”), as are the facts that police officers are improperly

providing legal advice, see Robinson v. Balog, 160 F.3d 183, 188

(4th Cir. 1998) (holding that speech exposing “actual or

potential wrongdoing” is speech on a matter of public concern

(internal quotation marks omitted)), and that some ticketed

drivers are unwittingly making decisions that are contrary to

their legal interests. Accordingly, Smith could not be fired

12

for making the statements he made unless his right to speak was

outweighed by his employer’s legitimate interests.

Regarding this balancing, the government bears the “burden

of justifying the discharge on legitimate grounds.” Rankin v.

McPherson, 483 U.S. 378, 388 (1987). The balancing test

requires us to consider the context in which the speech was

made, including the employee’s role and the extent to which the

speech impairs the efficiency of the workplace. See id. at 388–

91.

Factors relevant to this inquiry include whether a

public employee’s speech (1) impaired the maintenance

of discipline by supervisors; (2) impaired harmony

among coworkers; (3) damaged close personal

relationships; (4) impeded the performance of the

public employee’s duties; (5) interfered with the

operation of the [agency]; (6) undermined the mission

of the [agency]; (7) was communicated to the public or

to coworkers in private; (8) conflicted with the

responsibilities of the employee within the [agency];

and (9) abused the authority and public accountability

that the employee’s role entailed.

Ridpath, 447 F.3d at 317. In balancing the competing interests,

“we do not require the public employer to prove that the

employee’s speech actually disrupted efficiency, but only that

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

Maciariello v. Sumner, 973 F.2d 295, 300 (4th Cir. 1992)

(quoting Jurgensen v. Fairfax Cnty., 745 F.2d 868, 879 (4th Cir.

1984)). Whether the employee’s interest in speaking outweighs

13

the government’s interest is a question of law for the court.

See Joyner v. Lancaster, 815 F.2d 20, 23 (4th Cir. 1987).

Gilchrist conceded in the district court – with good reason

– that Smith had forecasted evidence sufficient to establish

that his interest in speaking outweighed the government’s. See

J.A. 296 (“[T]here are no relevant facts to challenge finding

that [Smith’s] interest in speaking outweighed the government’s

interest in providing effective and efficient services to the

public.”). Gilchrist, after all, had agreed in his deposition

that none of the concerns Smith expressed in the interview “had

to do with Mecklenburg County District Attorney Office policy” 5

or in any way impugned the authority or credibility of the DA’s

office, and Gilchrist had testified that he did not consider the

decision to give the interview to be disloyal to the DA’s

office. 6 J.A. 126. Indeed, there is no evidence that the

5

This factual concession is particularly noteworthy given

that Gilchrist’s assertion that the “interview criticized the

policies of the office for which [Smith] worked” was the sole

basis Gilchrist gave in response to the district court for his

contention that a reasonable official might not have known that

Smith’s speech was constitutionally protected. J.A. 299. In

this court, Gilchrist has subtly changed his argument,

contending that the uncertainty regarding whether the speech was

protected was due to the fact that the “interview criticized a

program which directly impacted the office for which [Smith]

worked.” Appellee’s Brief at 21.

6

Certain public employees’ positions’ functions are such

“that party affiliation or political allegiance is an

appropriate requirement for the effective performance of the

(Continued)

14

concerns expressed during the interview even pertained to

circumstances within Gilchrist’s control. The concerns related

to the goings-on in the SHC’s defensive-driving classroom,

improper legal advice by police officers, and ticketed drivers

making decisions that were not in their legal best interests. 7

public office involved.” Bland v. Roberts, 730 F.3d 368, 375

(4th Cir. 2013) (alteration and internal quotation marks

omitted). Such employees may be terminated for speech

constituting political disloyalty to their employers. See id.

at 374-75 & n.5. Gilchrist does not argue that Smith’s position

fit into this exception or that there was any gray area on the

point that would entitle him to qualified immunity for firing

Smith.

7

Menser specifically testified that Smith never expressed

“any concern about the fact that the [DA’s] Office was referring

people to the driving school.” J.A. 169. In concluding that

Gilchrist was entitled to qualified immunity, the district court

noted testimony from Menser that Smith “stated that ‘he had

issues with the driving school and with the fact that the

District Attorney’s Office was involved in recommending that

people go to the driving school,” that Smith “‘disagreed with

the D.A.’s office policy to be part of the arrangement that

allowed individuals to go to the driving school and receive a

PJC,’” and that Smith “‘objected to the school, and . . . to

[the District Attorney’s Office’s] involvement in [it].’”

Smith, 2012 WL 5985487, at *10 (second and third alterations in

original). But the testimony the district court identified

concerned opinions that Smith had expressed in his July 14

meeting with Gilchrist and Menser, not statements that he

actually made during the television interview. See, e.g., J.A.

148 (Menser’s testimony that Smith “did tell us . . . that he

didn’t think the driving school was a good idea” (emphasis

added)); J.A. 181 (Menser’s testimony that he “understood

[Smith] to be telling us that he disagreed with the D.A.’s

office policy to be part of the arrangement that allowed

individuals to go to the driving school and receive a PJC” and

that Smith “objected to the school, and . . . to [the DA

office’s] involvement in [it]” (emphasis added)). Whether Smith

(Continued)

15

And, there was no evidence that Smith sought to place any blame

on Gilchrist during the interview for any of these actions.

There simply was no evidence that Smith’s public statements

would cause problems with harmony or discipline in the DA’s

office such that the efficiency of the office would be expected

to be adversely affected.

Nor was there any evidence that Gilchrist had any reason to

believe that Smith’s interview would negatively affect the

efficiency or effectiveness of the DA’s office. Gilchrist

testified that he felt, since the defensive driving program was

responsible for such a significant reduction of the DA’s

office’s caseload, that “any criticism of the [SHC] necessarily

impacted [the DA’s] office.” J.A. 100. But Gilchrist offered

no explanation of, or support for, his belief. This attempt to

connect what Smith said to the DA’s office is such a stretch as

to be entitled to no weight at all and leads us to agree with

Gilchrist’s initial assessment that no relevant facts exist from

the DA’s point of view to challenge Smith’s right to speak.

privately disagreed with the DA’s office policy concerning the

driving course is irrelevant to the issue of whether Gilchrist

could fire Smith for public statements that did not question

policies of the DA’s office.

16

It is true, of course, that Gilchrist believed that two of

the concerns Smith raised in the interview were invalid. 8

Nevertheless, it has been long established that such differences

of opinion cannot justify terminating the speaker, as Pickering

itself made clear.

In Pickering, a teacher was fired for a letter he sent to

the local newspaper that was critical of the way in which the

school board had handled past bond proposals and had allocated

financial resources between the schools’ educational and

athletic programs. See Pickering, 391 U.S. at 566. The letter

was also critical of the superintendent’s alleged attempts to

prevent teachers from opposing or criticizing the proposed bond

issue. See id. The Court explained that the possibility that

the letter would foment controversy and conflict did not justify

the teacher’s firing because there was no evidence that the

letter had that effect. See id. at 570. The Court also held

that the letter could not be found to be somehow “per se harmful

to the operation of the schools” because the criticism that too

8

In his deposition, Gilchrist did not dispute that students

were not paying attention during the driving course or that

police officers were giving legal advice to ticketed drivers.

He nevertheless opined that these concerns were invalid because

it is commonplace that students in many settings do not pay

attention in class and police officers’ giving legal advice is

simply “a reality.” J.A. 75. Gilchrist agreed that “there may

be substance to” Smith’s concern that some drivers were not

acting in their legal best interests by deciding to take the PJC

for the ticketed offenses. J.A. 130.

17

much money was being allocated to athletics merely “reflect[ed]

. . . a difference of opinion between [the teacher] and the

Board as to the preferable manner of operating the school

system, a difference of opinion that clearly concerns an issue

of general public interest.” Id. at 571. The Court noted

On such a question free and open debate is vital to

informed decision-making by the electorate. Teachers

are, as a class, the members of a community most

likely to have informed and definite opinions as to

how funds allotted to the operation of the schools

should be spent. Accordingly, it is essential that

they be able to speak out freely on such questions

without fear of retaliatory dismissal.

Id. at 571-72.

Similarly, in this case, the simple fact that Gilchrist may

have disagreed with Smith’s vision of how SHC should be running

its defensive driving course or whether police officers should

be giving legal advice to ticketed drivers is clearly not the

sort of consideration that could be weighed against Smith’s

interest in speaking as a citizen on matters of public concern.

See id. at 571 (“[T]he only way in which the Board could

conclude, absent any evidence of the actual effect of the

letter, that the statements contained therein were per se

detrimental to the interest of the schools was to equate the

Board members’ own interests with that of the schools.”); see

also Ridpath, 447 F.3d at 321 (holding employer was not entitled

to qualified immunity for terminating employee “for making

18

protected statements that [employer] did not like”). Calling

attention to a significant weakness in a course designed to

protect the public safety, alerting the public to improper legal

advice, and attempting to protect citizens from unwittingly

making legal decisions that are not in their best interests are

critical services that a DA’s office has no legitimate interest

in opposing. See Garcetti v. Ceballos, 547 U.S. 410, 419 (2006)

(“The [Supreme] Court has acknowledged the importance of

promoting the public’s interest in receiving the well-informed

views of government employees engaging in civic discussion.”);

Pickering, 391 U.S. at 572 (noting that “[t]eachers are . . .

the members of a community most likely to have informed and

definite opinions” concerning spending by schools).

In sum, Gilchrist certainly was correct to concede that

there were no relevant facts upon which he could base an

argument that Smith’s interest in speaking as a private citizen

on matters of public concern was outweighed by the government’s

interest in providing effective and efficient services to the

public. Thus, Smith satisfied the first qualified-immunity

prong by forecasting evidence sufficient to “substantiate [a]

violation of [his First Amendment] right” to freedom of speech.

Ridpath, 447 F.3d at 306 (internal quotation marks omitted).

Gilchrist argues to us, however, as he did to the district

court, that even assuming that Smith’s interests actually (and

19

completely) outweighed the government’s, he is nonetheless

entitled to qualified immunity because it would not have been

clear to a reasonable official in Gilchrist’s position that

Smith’s interests outweighed the government’s. See id.

(explaining that to survive a qualified-immunity claim, a

plaintiff must demonstrate the “violation . . . of a clearly

established right of which a reasonable person would have known”

(internal quotation marks omitted)). In this regard, Gilchrist

emphasizes that balancing the government’s interests against the

employee’s is a subtle process. He also maintains that because

of the significant role that the defensive-driving course played

in reducing the DA’s office caseload and freeing resources for

other matters, a reasonable DA in his position could have

believed that any public criticism of that course undermined the

operation and mission of the DA’s office. Gilchrist contends

that, under this theory, a reasonable DA might have believed he

was justified in firing Smith for publicly making the statements

in question.

This argument need not detain us long. For purposes of

determining whether Smith’s right to speak without recrimination

was clearly established, we conclude that the right at issue,

described at the appropriate level of specificity, is as

follows: it is the right of an ADA running for public office

not to be fired for speaking publicly in his capacity as a

20

candidate on matters of public concern when the speech is

critical of a program that substantially reduces the DA’s

office’s caseload but there is no reason to believe the speech

will negatively impact the DA’s office’s efficiency.

Any reasonable official in Gilchrist’s position would have

been aware of that right on the day of Smith’s termination. 9 The

notion that programs that reduce a government agency’s workload

are somehow off limits from criticism by government employees

even when there is no reason to expect that the criticism will

actually hamper the government office’s efficiency finds no

basis whatsoever in the law. At the time of Smith’s firing, it

was well established that a government employee’s speech made as

a private citizen on a matter of public concern is balanced

against the adverse effect that the government reasonably

anticipates the speech will have on its ability to operate

efficiently. See Maciariello, 973 F.2d at 300. In this case,

there was no evidence forecasted in the summary judgment record

that Smith’s speech was expected to have any particular effect,

9

We emphasize that Gilchrist denies that he terminated

Smith because of what he said during the interview, and he has

never taken the position that he had the right to do so. In

fact, he acknowledged in his deposition that firing Smith for

his speech would have violated his constitutional rights. We

consider this acknowledgment in the context of determining the

legal issue before us. We offer no view today as to the merits

of Gilchrist’s contention that he did not fire Smith for his

speech, which remains an issue for trial.

21

as Gilchrist’s concession in the district court reflected.

Thus, although Gilchrist is certainly correct that the process

of balancing the employer’s interests against the employee’s is

a subtle one, the general complexity of the balancing test is of

no consequence in this case since there is nothing on the

employer’s side of the ledger to weigh. See Pickering, 391 U.S.

at 572-73 (holding that in a case “in which a teacher has made

erroneous public statements upon issues then currently the

subject of public attention, which are critical of his ultimate

employer but which are neither shown nor can be presumed to have

in any way either impeded the teacher’s proper performance of

his daily duties in the classroom or to have interfered with the

regular operation of the schools generally,” the government

failed to show that its interests outweighed the teacher’s

interest in speaking); cf. Goldstein, 218 F.3d at 356 (holding

that “generalized and unsubstantiated interests” “in maintaining

morale and efficiency within” the fire department did not

outweigh plaintiff’s speech interest); Daulton v. Affeldt, 678

F.2d 487, 491 (4th Cir. 1982) (concluding that speech did not

interfere with the operation of a college where the “disputes

did not . . . create any more disharmony than would be expected

when a subordinate criticizes her superiors on any subject”).

In sum, a reasonable DA in Gilchrist’s position would have

known that he could not fire an ADA running for public office

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for speaking publicly in his capacity as a candidate on matters

of public concern when the speech is critical of a program that

substantially reduces the DA’s office’s caseload but there is no

reason to believe the speech will negatively impact the DA’s

office’s efficiency. We therefore hold that the district court

erred in granting summary judgment to Gilchrist on the First

Amendment claim on the basis of qualified immunity.

III.

Smith next argues that the district court also erred in

granting summary judgment against him on his North Carolina

constitutional claim. As we have mentioned, the district court

granted summary judgment on the North Carolina claim for the

same reason that it granted summary judgment on the federal

claim. See Smith, 2012 WL 5985487, at *12. Gilchrist

understandably does not argue that a separate ground exists for

affirming with regard to the state-law claim if summary judgment

was improperly granted on the federal claim. See Bailey v.

Kennedy, 349 F.3d 731, 742 n.6 (4th Cir. 2003) (holding that

when officers violated rights that were clearly established,

officers were not entitled to public officers’ immunity from

North Carolina state-law claims). We therefore reverse the

summary judgment on the state-law claim as well.

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IV.

For the foregoing reasons, we reverse the district court

order granting summary judgment against Smith and remand to the

district court for trial.

REVERSED AND REMANDED

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