Kirby v. City of Elizabeth City

ON REHEARING

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CARL EDWARD KIRBY, 

Plaintiff-Appellant,

v.

CITY OF ELIZABETH CITY, North

Carolina, a municipal corporation;

TREVOR HAMPTON, in his official

capacity and individually; FRANK

KOCH, individually and in his

official capacity,

Defendants-Appellees.

NATIONAL ASSOCIATION OF POLICE  No. 03-2035

ORGANIZATIONS; FRATERNAL ORDER OF

POLICE; PROFESSIONAL FIREFIGHTERS

& PARAMEDICS OF NORTH CAROLINA;

NORTH CAROLINA ASSOCIATION OF

EDUCATORS; NORTH CAROLINA

ACADEMY OF TRIAL LAWYERS,

Amici Supporting Appellant,

NORTH CAROLINA ASSOCIATION OF

COUNTY COMMISSIONERS; NORTH

CAROLINA SCHOOL BOARDS

ASSOCIATION,

Amici Supporting Appellees.



Appeal from the United States District Court

for the Eastern District of North Carolina, at Elizabeth City.

Terrence W. Boyle, Chief District Judge.

(CA-01-46-BO)

2 KIRBY v. CITY OF ELIZABETH CITY

Argued: June 3, 2004

Decided: November 3, 2004

Before WILKINS, Chief Judge, WILLIAMS, Circuit Judge,

and David R. HANSEN, Senior Circuit Judge of the

United States Court of Appeals for the Eighth Circuit,

sitting by designation.

Affirmed by published opinion. Chief Judge Wilkins wrote the opin-

ion, in which Judge Williams and Senior Judge Hansen joined.

COUNSEL

ARGUED: Joseph Michael McGuinness, Elizabethtown, North Caro-

lina, for Appellant. Norwood Pitt Blanchard, III, CRANFILL, SUM-

NER & HARTZOG, L.L.P., Raleigh, North Carolina, for Appellees.

ON BRIEF: Patricia L. Holland, Rachel K. Esposito, CRANFILL,

SUMNER & HARTZOG, L.L.P., Raleigh, North Carolina, for Appel-

lees. William J. Johnson, NATIONAL ASSOCIATION OF POLICE

ORGANIZATIONS, INC., Washington, D.C., for NAPO; Richard

Hattendorf, FRATERNAL ORDER OF POLICE, Charlotte, North

Carolina, for FOP; M. Travis Payne, EDELSTEIN AND PAYNE,

Raleigh, North Carolina, for Professional Fire Fighters and Parame-

dics of North Carolina and North Carolina Academy of Trial Law-

yers; John W. Gresham, FERGUSON STEIN CHAMBERS,

Charlotte, North Carolina, for North Carolina Association of Educa-

tors, Amici Supporting Appellant. James B. Blackburn, III, NORTH

CAROLINA ASSOCIATION OF COUNTY COMMISSIONERS,

Raleigh, North Carolina, for NCACC; Allison Brown Schafer,

NORTH CAROLINA SCHOOL BOARDS ASSOCIATION,

Raleigh, North Carolina, for NCSBA; M. Daniel McGinn, BROOKS,

PIERCE, McLENDON, HUMPHREY & LEONARD, L.L.P.,

Greensboro, North Carolina, for Amici Supporting Appellees.

KIRBY v. CITY OF ELIZABETH CITY 3

OPINION

WILKINS, Chief Judge:

Carl Edward Kirby appeals a district court order granting summary

judgment against him in his action against the City of Elizabeth City,

North Carolina ("City"); City Police Chief Trevor Hampton; and City

Police Lieutenant Frank Koch (collectively, "Appellees") in which

Kirby asserts that he was retaliated against based on the content of his

truthful testimony at a public hearing and based on his subsequent

challenges to that alleged retaliation. We affirm the district court

order, although partly on grounds different from those relied on by the

district court.

I.

Kirby is employed by the City as a police officer. On July 19,

2001, Kirby testified at a hearing before a City Personnel Appeals

Committee concerning a grievance filed by fellow City police officer

James Henning. The grievance challenged discipline imposed against

Henning for damaging a patrol vehicle ("Car 127") by driving it with

too little transmission fluid. At the hearing, Kirby recounted the main-

tenance history and transmission fluid capacity of Car 127, provided

his opinion of Henning’s maintenance and driving habits, and

explained how transmission leaks are diagnosed. Kirby maintains that

Hampton and Koch were angered by his testimony, which they per-

ceived to undercut Hampton’s position and support Henning’s.

Following his testimony, Kirby left the police station at about 1:30

p.m. to begin a previously scheduled vacation. When Kirby returned

to work, he learned that he had received an "oral reprimand" for

"[f]ailure to support the Department’s Administration." J.A. 44. Kirby

claims that he was reprimanded because his hearing testimony con-

flicted with Hampton’s. However, Appellees insist that the reprimand

was based not on the substance of Kirby’s testimony but on Kirby’s

failure to follow proper procedures before testifying. Specifically,

Appellees assert that an employee scheduled to be on duty when he

will be testifying is required to provide advance notice to the City’s

Human Resources Department so that another officer may be

assigned to cover the employee’s duties. Kirby denies that he had any

4 KIRBY v. CITY OF ELIZABETH CITY

duty to notify Human Resources. On this basis, he filed a grievance

challenging the punishment.1 He also initiated the present action on

August 31, 2001, alleging that the reprimand was in retaliation for his

testimony.

On September 4, 2001, Kirby received notice that Hampton had

demoted him from Sergeant to Police Officer III. Appellees claim that

the demotion was because of Kirby’s poor job performance and that

an audit of cases assigned to Kirby’s Investigative Bureau over the

first six months of 2001 showed that in 61 of the 377 cases, the inves-

tigation did not comply with applicable policies and procedures. In

particular, several case files did not contain supplements updating

progress in the investigations even though such supplements were

required to be completed weekly. Kirby contends that the supplement

policy had not previously been enforced and that supplements in some

of the identified cases were not required by the policy or could not

be completed. Kirby thus amended his complaint in the present action

on September 21, 2001, to add claims related to his demotion.

As amended, Kirby’s complaint alleges that Appellees’ retaliation

based on his testimony violated his constitutional rights to free

expression and association, as well as his right to freedom from the

imposition of unconstitutional conditions on his public employment.2

The complaint further asserts that the retaliation violated his Four-

teenth Amendment liberty interest in testifying truthfully and denied

him equal protection under the law. It also alleges that the reprimand

violated Kirby’s equal protection rights because it constituted dispa-

rate treatment with no rational basis. Finally, the complaint alleges

that Kirby’s demotion in retaliation for his filing the grievance and

initial complaint violated his freedom to petition for redress of griev-

ances.

1

Kirby also challenged another reprimand he received when he

returned from vacation. However, he withdrew that challenge after filing

the present action.

2

Kirby contends that "[Appellees’] conduct has implicitly commanded

that [Kirby] not testify truthfully, which is an unconstitutional condition

of employment." J.A. 40.

KIRBY v. CITY OF ELIZABETH CITY 5

After hearing Kirby’s grievance of his demotion, the City’s Person-

nel Appeals Committee ("PAC") concluded that Kirby had indeed

violated department policy, but it recommended that Kirby’s sanction

be reduced. Specifically, the PAC recommended that Kirby retain his

rank of Sergeant for a one-year probationary term and that his hourly

salary be set at $15.90 per hour—a rate lower than his pay prior to

the demotion but higher than he had received since. Following his

review of the PAC’s findings and recommendations, the City Man-

ager accepted the finding that Kirby had violated departmental policy

but decided that Kirby would remain at the lower rank of Police Offi-

cer III for a six-month probationary period at the rate of pay that the

PAC recommended.3 Kirby was reinstated to his former Sergeant

position at the expiration of the probationary period. He nevertheless

maintains that Appellees have continued their retaliation against him

by assigning him to perform secretarial duties such as handling tele-

phone inquiries.

Appellees moved for summary judgment, and Kirby filed a cross-

motion for partial summary judgment. The district court granted

Appellees’ motion and denied Kirby’s. Regarding Kirby’s freedom of

expression claim, the court ruled that testimony in a public hearing is

not constitutionally protected unless the testimony relates to a matter

of public concern. The court ruled that the speech at issue here was

not protected because it concerned only one particular employee in a

matter that was not of general concern to the public. The court ruled

that Kirby’s claims alleging violation of his freedom to associate and

asserting the imposition of unconstitutional conditions on his public

employment also failed because the claims alleged retaliation for mat-

ters not of public concern. The district court also rejected Kirby’s

Fourteenth Amendment liberty claim on the ground that it was simply

a rewording of his freedom of expression claim and that any residual

liberty protection given to free speech under the Fourteenth Amend-

ment could not exceed the protection that the First Amendment

affords.

The district court divided Kirby’s equal protection claims into two

categories—those claims alleging that he was treated differently in

3

The City Manager also determined that the $15.90 pay rate would be

retroactive to the date of Kirby’s demotion.

6 KIRBY v. CITY OF ELIZABETH CITY

retaliation for his testimony and his claim that there was no rational

basis for the treatment he received. The court disposed of the first

group on the basis that generic free-speech retaliation does not consti-

tute an equal protection violation. And, the rational basis claim was

disposed of on the ground that Kirby failed to forecast evidence

negating the existence of any facts from which a conceivable rational

basis justifying the treatment he received could be derived.

Finally, the district court ruled that Kirby’s petition claim failed

because his grievance and lawsuit did not involve matters of public

concern and thus were not constitutionally protected.

II.

Kirby first contends that the district court erred in granting sum-

mary judgment on his freedom of expression claim. Specifically, he

maintains that his testimony was on a matter of public concern

because (1) it was given in a public hearing, and (2) it concerned mat-

ters of the type that would interest the general public. We conclude

that the district court properly granted summary judgment against

Kirby on this claim.

It is well settled that citizens do not relinquish all of their First

Amendment rights by virtue of accepting public employment. See

United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 465

(1995); Connick v. Myers, 461 U.S. 138, 142 (1983); Pickering v. Bd.

of Educ., 391 U.S. 563, 568 (1968). Nevertheless, the government, as

an employer, clearly possesses greater authority to restrict the speech

of its employees than it has as sovereign to restrict the speech of the

citizenry. See Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000)

(en banc). A determination of whether a restriction imposed on a pub-

lic employee’s speech violates the First Amendment requires "‘a bal-

ance between the interests of the [employee], as a citizen, in

commenting upon matters of public concern and the interest of the

State, as an employer, in promoting the efficiency of the public ser-

vices it performs through its employees.’" Connick, 461 U.S. at 142

(alteration in original) (quoting Pickering, 391 U.S. at 568). This bal-

ancing begins with an inquiry into whether the speech at issue was

that of a private citizen speaking on a matter of public concern. See

Mansoor v. Trank, 319 F.3d 133, 137 (4th Cir. 2003). If so, the court

KIRBY v. CITY OF ELIZABETH CITY 7

must next consider whether the employee’s interest in his First

Amendment expression outweighs the employer’s interest in what it

has determined to be the appropriate operation of the workplace. See

Urofsky, 216 F.3d at 406.

To determine whether speech involves a matter of public concern,

we examine the content, form, and context of the speech at issue in

light of the entire record. See Connick, 461 U.S. at 147-48. Speech

involves a matter of public concern when it involves an issue of

social, political, or other interest to a community. See id. at 146. The

public-concern inquiry centers on whether "the public or the commu-

nity is likely to be truly concerned with or interested in the particular

expression." Arvinger v. Mayor of Baltimore, 862 F.2d 75, 79 (4th

Cir. 1988) (internal quotation marks omitted). Whether speech

addresses a matter of public concern is a question of law for the court,

and thus we review the matter de novo. See Urofsky, 216 F.3d at 406.

We now turn to Kirby’s arguments. Kirby’s first contention—that

the fact that his testimony was given in a public hearing makes it a

matter of public concern—is at odds with our opinion in Arvinger.

There we determined that a police officer did not address a matter of

public concern when he stated during a coworker’s employment hear-

ing that he did not know whether marijuana found in his van belonged

to the coworker. See Arvinger, 862 F.2d at 78-79. In so doing, we

held that it was "irrelevant for first amendment purposes that the

statement was made in the course of an official hearing" because the

statement was made not to further any public debate, but only to fur-

ther the interests of the two officers involved. Id. at 79.

Kirby argues that Arvinger is distinguishable from the present case

because in Arvinger the testimony was not truthful. However, nothing

in our decision indicates that the outcome depended on the alleged

falsity of the testimony. Kirby also argues that even if his position is

at odds with Arvinger, that decision is not controlling because it con-

flicts with Judge Ervin’s separate opinion in Whalen v. Roanoke

County Bd. of Supervisors, 769 F.2d 221 (4th Cir. 1985), which this

court subsequently adopted, see Whalen v. Roanoke County Bd. of

Supervisors, 797 F.2d 170 (4th Cir. 1986) (en banc) (per curiam). In

fact, Arvinger and the en banc Whalen decision are completely con-

sistent because nothing in Judge Ervin’s opinion states that testimony

8 KIRBY v. CITY OF ELIZABETH CITY

in a public hearing necessarily relates to a matter of public concern.

In Whalen, the panel concluded that the plaintiff’s testimony at a pub-

lic hearing concerned a matter of public interest, see Whalen, 769

F.2d at 225, and Judge Ervin accepted this conclusion in his dissent,

see id. at 226 (Ervin, J., concurring in part & dissenting in part). How-

ever, nothing in Judge Ervin’s opinion or the panel majority opinion

indicates that the existence of the hearing, rather than the subject mat-

ter of the statement, was what made the statement there a matter of

public concern.

Kirby’s second contention—that his speech involved a matter of

public concern because it was on a topic of interest to the public—

fails as well. Kirby’s speech concerned the narrow question of

whether Officer Henning negligently failed to monitor the transmis-

sion fluid in Car 127, thereby damaging the vehicle. Kirby did testify

that a faulty transmission in Car 127 had once prevented an officer

from responding to a call and that Car 127 had experienced other

mechanical problems, but the relative unreliability of a single police

vehicle simply is not of sufficient significance to attract the public’s

interest. Cf. Arvinger, 862 F.2d at 78-79 (holding that police officer

did not address a matter of public concern when he stated that he did

not know whether marijuana found in his van belonged to a

coworker). And Kirby clearly was not interested in furthering any

public debate about the reliability of Car 127. We therefore agree with

the district court that Kirby’s statements did not address a matter of

public concern.4

4

Because Kirby’s speech was not constitutionally protected, Kirby’s

claim that the treatment he received amounted to an implicit restriction

on his speech—and thus an unconstitutional condition on his public

employment—fails as well. The same is true for his freedom of associa-

tion claim, see Edwards v. City of Goldsboro, 178 F.3d 231, 249 (4th

Cir. 1999) (noting the correlative nature of freedom of association in

relation to other First Amendment freedoms, including freedom of

speech, and recognizing the relatedness of the limitations on both rights

in a public employment context), and his Fourteenth Amendment liberty

claim, see Kelley v. Johnson, 425 U.S. 238, 245 (1976) (holding that any

residual Fourteenth Amendment liberty interest a person has in his

speech is necessarily narrower than his First Amendment interest in that

same speech).

KIRBY v. CITY OF ELIZABETH CITY 9

III.

Kirby next argues that the district court erred in granting summary

judgment against him on his equal protection claims. We disagree.

The Fourteenth Amendment’s Equal Protection Clause provides

that "[n]o State shall . . . deny to any person within its jurisdiction the

equal protection of the laws." U.S. Const. amend. XIV, § 1. The

claims based on the allegation that Kirby was treated differently in

retaliation for his speech are, at their core, free-speech retaliation

claims that do "not implicate the Equal Protection Clause." Edwards,

178 F.3d at 250 (internal quotation marks omitted).

As for the claims based not on Appellees’ actual motivation for

their alleged disparate treatment of Kirby, but rather on the allegation

that there was no rational basis for any difference in treatment, they

fail as well. To establish such a claim, it is not sufficient for a plaintiff

simply to show that the defendants’ actual motive for their disparate

treatment was irrational; rather he must negate "any reasonably con-

ceivable state of facts that could provide a rational basis for the classi-

fication." Bd. of Trustees v. Garrett, 531 U.S. 356, 367 (2001)

(internal quotation marks omitted); cf. Village of Willowbrook v.

Olech, 528 U.S. 562, 565 (2000) (per curiam) (noting that claim of

no rational basis is distinct from claim based on defendant’s subjec-

tive motivation). Kirby does not challenge the determination of the

district court that he cannot meet that standard. Instead, he argues that

the "no conceivable rational basis" standard does not apply and that

it is Appellees’ actual motivation—retaliation for Kirby’s testimony

—that matters. But we have already explained that Kirby’s equal pro-

tection claims fail to the extent that they are based on the allegation

that he was retaliated against because of his testimony.5

5

Kirby also contends that the district court erred in restricting discov-

ery on the question of whether he actually was retaliated against. We

conclude that the discovery restrictions were well within the discretion

of the district court. See Am. Chiropractic Ass’n v. Trigon Healthcare,

Inc., 367 F.3d 212, 235-36 (4th Cir. 2004) (stating standard of review).

10 KIRBY v. CITY OF ELIZABETH CITY

IV.

Kirby finally maintains that the district court erred in granting sum-

mary judgment against him on his freedom to petition claim, which

is based on his allegation that his demotion constituted retaliation for

his formal challenges to the reprimand. Kirby contends that the dis-

trict court erred in ruling that a public employee’s petition must

address a matter of public concern in order to be constitutionally pro-

tected. He alternatively maintains that his petitions did involve a mat-

ter of public concern. We reject the first argument but agree with the

second.

A.

The First Amendment protects the right "to petition the Govern-

ment for a redress of grievances." U.S. Const. amend. I. The Supreme

Court has recognized that this right "is cut from the same cloth as the

other guarantees of that Amendment, and is an assurance of a particu-

lar freedom of expression." McDonald v. Smith, 472 U.S. 479, 482

(1985). In rejecting the assertion that the Petition Clause provides

absolute immunity for allegedly libelous statements included in letters

to the President, the Court stated:

The Petition Clause . . . was inspired by the same ideals of

liberty and democracy that gave us the freedoms to speak,

publish, and assemble. These First Amendment rights are

inseparable, and there is no sound basis for granting greater

constitutional protection to statements made in a petition . . .

than other First Amendment expressions.

Id. at 485 (citations omitted). We confirmed this principle in Thorne

v. Bailey, 846 F.2d 241 (4th Cir. 1988), recognizing that the Petition

Clause does not "enjoy[ ] a preferred place among First Amendment

freedoms." Thorne, 846 F.2d at 244 (internal quotation marks omit-

ted).

It would violate the principles articulated in McDonald and Thorne

to extend constitutional protection of public employees’ petitions for

redress beyond the protections afforded to public employee speech. In

KIRBY v. CITY OF ELIZABETH CITY 11

fact, it would allow the anomalous result that a private employment

dispute could "be constitutionalized merely by filing a legal action."

Altman v. Hurst, 734 F.2d 1240, 1244 n.10 (7th Cir. 1984) (per

curiam). We therefore join the majority of circuits to have addressed

the question in holding that a public employee’s petition, like his

speech, is constitutionally protected only when it addresses a matter

of public concern. See Jones v. Union County, 296 F.3d 417, 426 (6th

Cir. 2002); Martin v. City of Del City, 179 F.3d 882, 887-89 (10th

Cir. 1999); Grigley v. City of Atlanta, 136 F.3d 752, 755-56 (11th Cir.

1998); Rendish v. City of Tacoma, 123 F.3d 1216, 1220-23 (9th Cir.

1997); White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059

(2d Cir. 1993); Hoffman v. Mayor of Liberty, 905 F.2d 229, 233 (8th

Cir. 1990); Belk v. Town of Minocqua, 858 F.2d 1258, 1261-62 (7th

Cir. 1988); Day v. S. Park Indep. Sch. Dist., 768 F.2d 696, 701-03

(5th Cir. 1985). But see San Filippo v. Bongiovanni, 30 F.3d 424,

439-43 (3d Cir. 1994) (holding that a "non-sham" grievance or law-

suit by a public employee that constitutes a "petition" is constitution-

ally protected even if it does not raise a matter of public concern).

B.

In light of our holding, we turn to the question of whether Kirby’s

petitions—his grievance and his original complaint alleging that he

was orally reprimanded because of his truthful testimony—involved

a matter of public concern. We note initially that this case presents the

uncommon allegation of second-level retaliation—that is, retaliation

for challenging an earlier alleged retaliatory act. In light of the close

and somewhat confusing relationship between the retaliation claims

of different levels, it is important for us to begin by contrasting our

analysis of this second-level retaliation claim based on the demotion

—the petition claim—with our analysis of Kirby’s first-level retalia-

tion claims based on the reprimand. Because Kirby’s first-level retali-

ation claims allege that he was reprimanded because of his testimony,

the threshold question in analyzing the viability of those claims is

whether Kirby’s testimony involved a matter of public concern, which

we hold it did not for the reasons already explained. Kirby’s petition

claim, however, alleges that he was demoted for filing a grievance

and a lawsuit. Thus, the threshold question with regard to that claim

12 KIRBY v. CITY OF ELIZABETH CITY

is whether the grievance and the lawsuit addressed a matter of public

concern.6

This distinction is critical because while Kirby’s testimony con-

cerned only whether his fellow officer properly maintained his vehi-

cle, his grievance and lawsuit concerned a subject of much greater

interest to the public, namely whether the police chief and his lieuten-

ant retaliated against Kirby for providing truthful testimony. Our

research has not uncovered any case considering whether a petition

alleging first-level retaliation amounts to constitutionally protected

expression—and thus whether a claim for second-level retaliation is

viable—when the speech that precipitated the first-level retaliation

did not itself involve a matter of public concern. However, in this

instance at least, we conclude that Kirby has cleared the threshold

hurdle of demonstrating that his petitions alleging first-level retalia-

tion involved a matter of public concern.

The critical factor supporting our conclusion is not that Kirby was

allegedly unjustly reprimanded, but rather, that the reprimand could

have a chilling effect on him and other officers. Retaliation by the

police chief and his lieutenant against an officer based on the officer’s

allegedly truthful testimony in an official hearing most certainly could

be expected to discourage officers in future inquiries from providing

information that they suspect will displease the police chief. See J.A.

281 (affidavit of former City police chief explaining that

"[r]eprimands of employees as a result of truthful testimony at griev-

ance hearings will likely adversely affect the testimony of employees

in . . . other hearings because the possibility of discipline will consti-

tute a form of implied pressure upon employees"); id. at 274 (affidavit

of City police officer stating that the "adverse action against . . . Kirby

resonated throughout the police department with an extreme deterrent

and damaging effect"). Considering that "uninhibited testimony is

vital to the success of [the] truth-seeking function," Catletti v. Rampe,

334 F.3d 225, 230 (2d Cir. 2003), there is a strong public interest in

ensuring that that process is not compromised. Cf. Green v. Philadel-

phia Hous. Auth., 105 F.3d 882, 887 (3d Cir. 1997) ("The utility of

uninhibited testimony and the integrity of the judicial process would

6

Although we ordinarily consider context and form as well as content,

the context and form of the petitions add little to our analysis here.

KIRBY v. CITY OF ELIZABETH CITY 13

be damaged if we were to permit unchecked retaliation for appearance

and truthful testimony at such proceedings."). This is particularly true

in the law enforcement arena. See Brawner v. City of Richardson, 855

F.2d 187, 191-92 (5th Cir. 1988) ("The disclosure of misbehavior by

public officials is a matter of public interest and therefore deserves

constitutional protection, especially when it concerns the operation of

a police department." (footnote omitted)).

It could be argued that because Kirby’s testimony did not involve

a matter of public concern, his allegation of retaliation based on that

testimony is not sufficiently significant to involve a matter of public

concern. Although we recognize that this issue is a close one, we con-

clude that the allegedly unwarranted reprimand could have a signifi-

cant chilling effect on testimony relating to matters of public as well

as private concern. One who believes that the police chief and his

lieutenant are willing to punish adverse testimony and lie about the

reason for it7 is likely also to suspect that those officials would engage

in retaliation even when such retaliation might be unconstitutional.

For these reasons, we conclude that Kirby’s allegation in his griev-

ance and first complaint that he was reprimanded based on his testi-

mony at a disciplinary hearing implicates a matter of public concern

even though the testimony itself related to a private matter.8

7

We emphasize that these are the allegations in Kirby’s petitions,

which we accept only for purposes of summary judgment.

8

Although Appellees contend that a simple "oral reprimand" would not

be sufficient to chill future speech, the record indicates that the so-called

"oral" reprimand was in fact reduced to writing. J.A. 44. And, in any

event, it is well established that even minor retaliation can have a chilling

effect on future expression. See Rutan v. Republican Party, 497 U.S. 62,

76 n.8 (1990) ("[T]he First Amendment . . . protects state employees . . .

from even an act of retaliation as trivial as failing to hold a birthday party

for a public employee when intended to punish her for exercising her free

speech rights." (alteration & internal quotation marks omitted)); Smith v.

Fruin, 28 F.3d 646, 649 n.3 (7th Cir. 1994) (explaining that "minor

forms of retaliation . . . may have just as much of a chilling effect on

speech as more drastic measures").

We also note that Appellees do not maintain that retaliating against

Kirby for filing his petitions advanced its interest in what it has deter-

mined to be the appropriate operation of the workplace. See Urofsky, 216

F.3d at 406.

14 KIRBY v. CITY OF ELIZABETH CITY

C.

Although we hold that Kirby’s petitions implicated a matter of pub-

lic concern, we affirm the judgment in favor of Appellees on other

grounds.

First, Chief Hampton and Lieutenant Koch are entitled to qualified

immunity. Government officials performing discretionary functions

are entitled to qualified immunity from liability for civil damages to

the extent that "their conduct does not violate clearly established stat-

utory or constitutional rights of which a reasonable person would

have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Here,

the petition rights that Kirby alleges that Chief Hampton and Lieuten-

ant Koch violated were anything but clear. As is apparent from our

analysis of the petition claim, the legal viability of the claim presents

a close and novel issue, and even assuming that Kirby’s allegations

are true, Hampton and Koch cannot be held liable for what would

amount to "bad guesses in [a] gray area[ ]." Maciariello v. Sumner,

973 F.2d 295, 298 (4th Cir. 1992).

While the City is not entitled to assert a qualified immunity

defense, it is also not liable under respondeat superior principles sim-

ply by virtue of its employment of Hampton and Koch. Rather, to

establish liability on behalf of a municipality, a plaintiff must show

that the officers acted pursuant to an official policy or custom of the

municipality. See Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th

Cir. 1994). Such a policy or custom need not derive from municipal

ordinances; "it may also be found in formal or informal ad hoc ‘pol-

icy’ choices or decisions of municipal officials authorized to make

and implement municipal policy." Spell v. McDaniel, 824 F.2d 1380,

1385 (4th Cir. 1987).

Kirby asserts several different theories under which he contends

the City could be liable for retaliating against him, none of which

withstands scrutiny. First, Kirby contends that Chief Hampton’s deci-

sion to demote him was itself a policy decision for which the City

could be liable. However, Chief Hampton lacked final authority with

regard to that decision because the demotion was subject to further

review by the City’s Personnel Appeals Committee and City Man-

ager. See Riddick v. Sch. Bd., 238 F.3d 518, 523 (4th Cir. 2000)

KIRBY v. CITY OF ELIZABETH CITY 15

("When a municipal official’s discretionary action is subject to review

by the municipality’s authorized policymakers, they have retained the

authority to measure the official’s conduct for conformance with their

policies." (internal quotation marks omitted)). Kirby also maintains

that the City ratified and acquiesced in Chief Hampton’s unconstitu-

tional retaliation against Kirby to the extent that the demotion was

affirmed during the grievance process. See City of St. Louis v. Pra-

protnik, 485 U.S. 112, 127 (1988) (plurality opinion) ("If the autho-

rized policymakers approve a subordinate’s decision and the basis for

it, their ratification would be chargeable to the municipality because

their decision is final."). That theory fails as well though because

Kirby has not forecasted evidence that the City Manager approved of

retaliation against Kirby as a basis for the demotion. Cf. Hall v. Mar-

ion Sch. Dist. No. 2, 31 F.3d 183, 196 (4th Cir. 1994) (affirming

determination by the district court that school board ratified unconsti-

tutional termination of teacher when board was aware of the retalia-

tory reasons for her firing). Kirby finally argues that even if the

demotion itself did not constitute a policy decision for which the City

could be held liable, the demotion was proximately caused by policies

contained in the City Police Department’s "Policy and Procedures

Manual" that restricted certain types of speech.9 J.A. 206. However,

even if the City could otherwise be held liable under this theory,

Kirby has not forecasted evidence that the existence of these policies

played any causal role regarding his demotion, which Appellees have

consistently defended solely on the basis that it was an appropriate

response to Kirby’s failure to satisfactorily complete his duties. See

Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (stating that

plaintiff is required to show "a close fit between the unconstitutional

policy and the constitutional violation").10

9

Under those policies, officers may not discuss "Department problems

. . . outside of [the] Department" or make "[d]erogatory remarks about

. . . the Chief." J.A. 210.

10

Kirby maintains that the officers’ qualified immunity and the lack of

municipal liability would not preclude an award of equitable relief—such

as back pay, front pay, an injunction against his performing secretarial

duties, or expungement of his employment records—or of declaratory

relief. He is incorrect. Qualified immunity prevents an award of back or

front pay against the officers in their individual capacities. See Paxman

v. Campbell, 612 F.2d 848, 855-56 (4th Cir. 1980) (en banc); Los Ange-

16 KIRBY v. CITY OF ELIZABETH CITY

V.

In sum, we affirm the district court order granting summary judg-

ment to Appellees.

AFFIRMED

les Police Protective League v. Gates, 995 F.2d 1469, 1472 n.1 (9th Cir.

1993). The other injunctive relief Kirby seeks could only be awarded

against the officers in their official capacities, see Frank v. Relin, 1 F.3d

1317, 1327 (2d Cir. 1993); Scott v. Flowers, 910 F.2d 201, 213 & n.25

(5th Cir. 1990), but we have held that the City is not liable, see Hensley

v. Horne, 297 F.3d 344, 347 n.1 (4th Cir. 2002); see also Hughes v.

Blankenship, 672 F.2d 403, 406 (4th Cir. 1982) ("Official capacity suits

generally represent but another way of pleading an action against the

entity of which the officer is an agent . . . ."). All that remains then is

Kirby’s request for a declaration that his rights have been violated. How-

ever, absent any expected practical effect of requested declaratory relief

—and none is apparent here—a claim for such relief is not sufficient to

create a case or controversy for Article III purposes. See S. Jackson &

Son, Inc. v. Coffee, Sugar & Cocoa Exch. Inc., 24 F.3d 427, 431 (2d Cir.

1994).