Pike v. Osborne

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARTHA L. PIKE; CYNTHIA J. KINCER, 

Plaintiffs-Appellees,

v.

KERMIT L. OSBORNE, individually  No. 01-2050

and in his capacity as Sheriff of

Wythe County, Virginia,

Defendant-Appellant.



Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

Samuel G. Wilson, Chief District Judge.

(CA-00-437, CA-00-438)

Argued: April 4, 2002

Decided: July 29, 2002

Before NIEMEYER, Circuit Judge,

HAMILTON, Senior Circuit Judge, and

W. Craig BROADWATER, United States District Judge

for the Northern District of West Virginia,

sitting by designation.

Reversed and remanded by published opinions. Judge Niemeyer,

Senior Judge Hamilton, and Judge Broadwater wrote opinions.

COUNSEL

ARGUED: Jim Harold Guynn, Jr., GUYNN LAW OFFICES, Roa-

noke, Virginia, for Appellant. Donald Wise Huffman, HUFFMAN &

2 PIKE v. OSBORNE

NIXON, P.C., Roanoke, Virginia, for Appellees. ON BRIEF: Robert

Hines, MONTGOMERY & HINES, Jonesville, Virginia, for Appel-

lees.

OPINION

NIEMEYER, Circuit Judge:

Cynthia J. Kincer and Martha L. Pike, former employees of the

Wythe County (Virginia) Sheriff’s Office, commenced this action

under 42 U.S.C. § 1983 against Wythe County Sheriff Kermit L.

Osborne, alleging that he failed to reappoint them because they sup-

ported his opponent in a recent election and therefore that he violated

their First Amendment right not to be retaliated against based on their

speech. The district court denied Sheriff Osborne’s claim of qualified

immunity, and he appealed. For the reasons that follow, we reverse

the district court’s denial of qualified immunity.

I

Both plaintiffs in this case were dispatchers for the Wythe County

Sheriff’s Department, a department in which dispatchers were privy

to confidential information, particularly about ongoing investigations.

Cynthia Kincer was hired by former Sheriff Wayne Pike in 1992 as

a part-time secretary and later was promoted to the position of dis-

patcher. Martha Pike was hired as a dispatcher in 1996, also by Sher-

iff Pike whom she later married.

In June 1998, Sheriff Wayne Pike resigned his position as sheriff

to take a job with the Virginia Parole Board, and Kermit Osborne was

appointed to complete his unfinished term. The following year,

Osborne announced his intention to seek the Republican party’s nom-

ination for sheriff for the November 1999 general election. Wayne

Pike’s son also sought that nomination, and his campaign was sup-

ported by both Martha Pike and Cynthia Kincer. After Osborne won

the Republican party nomination, Wayne Pike resigned his position

with the Virginia Parole Board and ran as an independent against

Osborne in the general election. Martha Pike and Cynthia Kincer

PIKE v. OSBORNE 3

openly supported Wayne Pike’s campaign, and Osborne was aware of

their support for his opponent. Osborne, however, defeated Wayne

Pike in the general election.

During the month following his election, Sheriff Osborne notified

the plaintiffs that they would not be reappointed when their terms

expired on December 31, 1999. According to Sheriff Osborne, the

plaintiffs were not rehired because of confidentiality concerns. He

claimed that several months earlier, information had leaked from the

dispatchers’ office about a murder investigation, and Wayne Pike had

made comments on the local radio station, "disclosing things that

[were] in an investigative stage" and therefore confidential. Sheriff

Osborne admits, however, that both plaintiffs had always received

satisfactory or better job reviews.

After Kincer and Pike commenced this action under 42 U.S.C.

§ 1983 for compensatory and punitive damages, Osborne filed a

motion for summary judgment. The district court granted Osborne’s

motion to dismiss the claims made against him in his official capacity

but denied his motion, based on qualified immunity, to dismiss the

claims made against him in his individual capacity. Osborne

appealed, claiming that he is entitled to qualified immunity either

because the plaintiffs failed to allege a constitutional violation or

because the law in this area was not clearly established at the time of

the alleged violation.

II

To resolve the qualified immunity issue in this case, we first deter-

mine whether the facts alleged, taken in the light most favorable to

the plaintiffs, demonstrate that Sheriff Osborne violated a constitu-

tional right of the plaintiffs. Saucier v. Katz, 533 U.S. 194, 201

(2001). If we determine that the plaintiffs have alleged a violation of

a constitutional right, we then determine whether the contours of the

right were clearly established such that "a reasonable official would

understand that what he [was] doing violate[d] that right." Anderson

v. Creighton, 483 U.S. 635, 640 (1997).

Sheriff Osborne contends that the plaintiffs failed to show that they

were not rehired because of their support for Wayne Pike’s campaign

4 PIKE v. OSBORNE

and therefore that they have failed to allege a violation of their First

Amendment rights. See Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 287 (1977) (holding that the plaintiff has the ini-

tial burden of showing that his conduct was constitutionally protected

and that the conduct was a "substantial factor" or a "motivating fac-

tor" in the firing decision). In this case, the evidence on which the

plaintiffs relied to establish the necessary causal relationship is thin

and circumstantial. It requires drawing an inference of retaliation

from the timing of Osborne’s actions after the election and the fact

that these two women, allegedly the only employees who openly sup-

ported Wayne Pike’s campaign, were the only employees who were

not reappointed. Although the plaintiffs’ evidence is sparse, because

we must take the evidence in the light most favorable to them, we will

assume that they have made a sufficient showing on this first hurdle

in the qualified immunity analysis.

With that assumption, we proceed to determine whether the law

regarding retaliatory employment decisions was clearly established

such that Sheriff Osborne should have known that refusing to reap-

point the plaintiffs would violate their constitutional rights. In deter-

mining whether a retaliatory employment decision violates the First

Amendment, we balance "the interests of the [employee], as a citizen,

in commenting upon matters of public concern and the interests of the

State, as an employer, in promoting efficiency of the public services

it performs through its employees." Rankin v. McPherson, 483 U.S.

378, 384 (1987) (quoting Pickering v. Board of Education, 391 U.S.

563, 568 (1960); Connick v. Meyers, 461 U.S. 138, 149 (1983)). We

have recognized that in these cases "only 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, yet difficult

to apply, and not yet well defined." Dimeglio v. Haines, 45 F.3d 790,

806 (4th Cir. 1995); see also McVey v. Stacy, 157 F.3d 271, 277 (4th

Cir. 1999). Given this "difficult-to-apply" balancing test, we cannot

conclude that in this case a First Amendment violation was so clearly

established that a reasonable official in Sheriff Osborne’s position

would know, without having to engage in guesswork, that the plain-

tiffs’ interest in commenting on an issue of public concern out-

weighed the sheriff’s interest in maintaining a loyal and efficient

sheriff’s department. Because the law in this area was not clearly

PIKE v. OSBORNE 5

established at the time the plaintiffs were not reappointed, Sheriff

Osborne is entitled to qualified immunity.

For the foregoing reasons, we reverse the order of the district court

denying Sheriff Osborne qualified immunity and remand with instruc-

tions to dismiss the complaint against him.

REVERSED AND REMANDED WITH INSTRUCTIONS

HAMILTON, Senior Circuit Judge, concurring in the judgment:

I agree with Judge Niemeyer’s apparent conclusion that, assuming,

arguendo, the plaintiffs have alleged a violation of the First Amend-

ment, Sheriff Osborne was entitled to qualified immunity because the

law in December 1999 was not clearly established that a sheriff in

Virginia could not lawfully terminate for political affiliation reasons

a dispatcher with privity to confidential information. I write further

to more fully explain my rationale for finding that Sheriff Osborne

was entitled to qualified immunity.

The law in this circuit is clear that sheriffs in Virginia have the

right to lawfully terminate their deputies for political affiliation rea-

sons. Jenkins v. Medford, 119 F.3d 1156, 1163-65 (4th Cir. 1997) (en

banc) (overruling Jones v. Dodson, 727 F.2d 1329 (4th Cir. 1984)).

However, we have not addressed the question of whether sheriffs

have the right to lawfully terminate their dispatchers for political affil-

iation reasons. Our decision in Jenkins sends mixed signals to sheriffs

in this regard. On the one hand, a dispatcher with access to confiden-

tial information, arguably, is the equivalent of your everyday clerical

worker, especially when, as in this case, each dispatcher did mostly

clerical work, did not wear a uniform, did not have a badge, had no

arrest authority, and had no discretionary authority. Id. at 1165

("[D]ismissals based on today’s holding [are limited] to those depu-

ties actually sworn to engage in law enforcement activities on behalf

of the sheriff. We issue this limitation to caution sheriffs that courts

examine the job duties of the position, and not merely the title, of

those dismissed. Because the deputies in the instant case were law

enforcement officers, they are not protected by this limitation.") (foot-

notes omitted), id. n.66 (citing Zorzi v. County of Putnam, 30 F.3d

885, 892 (7th Cir. 1994), which held that dispatchers were not

6 PIKE v. OSBORNE

involved in law enforcement activities or making policy, and, there-

fore, political affiliation was not an inappropriate job requirement).

On the other hand, Jenkins says privity to confidential information

permits a lawful termination based on political affiliation reasons. 119

F.3d at 1164 ("If the position resembles a policymaker, a communica-

tor, or a privy to confidential information, then loyalty to the sheriff

is an appropriate requirement for the job.") (internal quotation marks

and footnote omitted).

Jenkins is confusing, at best, on the point of whether sheriffs in

Virginia can lawfully terminate for political affiliation reasons dis-

patchers with privity to confidential information. Accordingly,

because the law was not clearly established in December 1999 that a

sheriff could not lawfully terminate for political affiliation reasons a

dispatcher with privity to confidential information, Sheriff Osborne

was entitled to qualified immunity.*

BROADWATER, District Judge, concurring in the judgment:

I agree with Judge Niemeyer’s opinion insofar as his opinion con-

cludes that the district court’s judgment should be reversed. However,

I agree with the reasoning of Judge Hamilton’s concurring in the

judgment opinion, which correctly explains why Sheriff Osborne was

entitled to qualified immunity.

*For purposes of our discussion, Sheriff Osborne does not dispute that

his decision not to reappoint plaintiffs was tantamount to a dismissal of

the plaintiffs from their employment.