Karl MANSOOR, Plaintiff-Appellee, v. Mark TRANK, Counsel for the County of Albemarle in his official and individual capacity; John Miller, Chief of the Albemarle County Police Department, in his official and individual capacity; Richard Douglas Rhoads, Captain of the Albemarle County Police Department, in his official and individual capacity, Defendants-Appellants, and County of Albemarle, Virginia; Robert M. Tucker, Administrator of the County of Albemarle, in his official and individual capacity; Larry Davis, Counsel for the County of Albemarle, in his official and individual capacity; Cynthia Favret, in her individual capacity, Defendants.
No. 02-1277
United States Court of Appeals, Fourth Circuit
Decided Feb. 4, 2003
319 F.3d 133
The Thomas Jefferson Center for the Protection of Free Expression, Amicus Supporting Appellee. Argued Dec. 5, 2002.
Strange, 129 F.3d 943, 947 (7th Cir.1997). When Congress added
III.
In sum, I concur with the majority‘s assessment that Koons engaged in a variety of scurrilous business practices that support the jury‘s finding of liability under both TILA and the VCPA. However, for the reasons articulated above, I believe that Koons’ statutory liability for its TILA violation is capped at $1,000. Accordingly, I dissent in part from the majority‘s judgment.
Before WILKINS and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Judge DIANA GRIBBON MOTZ wrote the opinion, in which Judge WILKINS and Senior Judge HAMILTON joined.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge.
Karl Mansoor, a police officer in Albemarle County, Virginia, brought this
I.
Most of the relevant facts are undisputed in this case. However, to the extent there are factual disputes, when considering an interlocutory appeal of a denial of qualified immunity, we are required to consider the facts, “in the light most favorable to the party asserting the injury,” in this case, Mansoor. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
Mansoor began work for the Albemarle County Police Department in 1994 and regularly received above-average performance reviews. Beginning in 1997, Mansoor began to express complaints about various department policies, ranging from a proposed pay plan to lack of overtime opportunities. Mansoor alleges that department officials responded negatively to his criticisms, creating a stressful working environment. Mansoor further alleges that the stress and pressure from his workplace resulted in extreme anxiety, profuse sweating, and shortness of breath. Early in 1998, Mansoor sought treatment from a private counselor, Dr. Hocking, who diagnosed him with panic disorder. At the recommendation of the doctor, Mansoor took a forty-day medical leave beginning in March 1998.
Although Police Chief John Miller permitted Mansoor to return to work, the Chief claims that he maintained doubts about Mansoor‘s fitness for duty. At Miller‘s request, Mansoor met with a psychologist, Dr. Favret, for an evaluation. In a document dated Oct. 9, 1998, Dr. Favret reported her initial findings about Mansoor. A week later, Dr. Favret, Chief Miller, Mark Trank, the County‘s counsel, and four other county employees participated in a telephone conference. Following this conference, Dr. Favret amended her report and reissued it, still dated Oct. 9, 1998, without indicating that it was a revision of the original report.1
On October 20, Miller relieved Mansoor of duty and placed him on administrative leave, assertedly because of Mansoor‘s “impaired judgment and related behavior.” Miller told Mansoor that he must meet three conditions in order to return to his position: (1) demonstrate appropriate medical treatment; (2) undergo a follow-up evaluation by Dr. Favret; and (3) demonstrate the ability “to function effectively within the Department, that you are ready, willing, and able to abide by management policies and decisions....”
In November, Mansoor met with Dr. Favret for a second evaluation. In her report from this meeting, Dr. Favret suggested that if Mansoor “is to be given the opportunity to return to work, a specific written agreement might be developed that addresses the process for him to pursue his concerns.” After receiving Dr. Favret‘s second report, a Plan of Assistance (the “Plan“) was created for Mans-
I [Miller] have determined that you [Mansoor] will be allowed to return to duty on the following terms and conditions:
- That you shall at all times refrain from any verbal or written communications to third parties, including but not limited to county employees, relating to your employment that are in any way critical or negative towards the county executive, the chief of police or other police department management or command staff, or any other county official or employee....
On December 30, Mansoor and Blythe met Miller, Trank, and Captain Richard Rhoads (the “Appellants“), along with Lieutenant Newton, to discuss the Plan and Mansoor‘s return to work. This meeting was tape recorded. The tape reveals that Chief Miller began the December 30 meeting by stating that he wanted Mansoor to understand that Miller‘s decisions are final and not to be questioned. Miller said that “using e-mail to blast my decisions, or things that I‘ve done or not done, will not be tolerated.”
Later in the meeting, Mansoor asked, “How ‘bout my rights as a private citizen; if I want to make statements to anybody else, so I‘m asking you about that.” Miller responded:
As a private citizen you have the right. Certainly, anything dealing with a departmental matter, it falls within the area of the First Amendment and what is a public concern, that area that that as a private citizen or not. If you‘re criticizing the department and it doesn‘t fall within a public concern, then it looks like a personal vendetta or a criticism that‘s unlawful, then you don‘t have that right. And I think probably Stephanie [Mansoor‘s attorney] would be best to explain that to you.
Toward the end of the meeting, in response to a comment by Mansoor that he had been receiving mixed signals from the department regarding his complaints, Miller replied, “Well, that‘s why I think it‘s good that this is in writing .... If there‘s any miscommunication, it‘s at least in writing .... Now there‘s no question as to what you can and cannot do.”
Mansoor returned to work shortly after the December 30 meeting, but he maintains that the conditions of employment placed on him by the Plan unconstitutionally punished him for earlier complaints and operated as a prior restraint on his First Amendment rights. Appellants respond that the Plan was designed to curb the disruption caused by Mansoor‘s inappropriate complaints and insubordination, and to provide Mansoor with the type of guidelines that psychologists had suggested would be helpful for him.
In April 2000, Mansoor filed suit in state court alleging five causes of action. After Appellants removed the case to federal court, the district court dismissed three of the five claims, leaving Mansoor‘s First Amendment
We analyze entitlement to qualified immunity in two steps. First, we must determine whether, “taken in the light most favorable to the party asserting the injury, ... the facts alleged show [that] the officer‘s conduct violated a constitutional right[.]” Saucier, 533 U.S. at 201, 121 S.Ct. 2151. Second, we decide “whether the right was clearly established” at the time of the events at issue. Id.
In Urofsky v. Gilmore, 216 F.3d 401 (4th Cir.2000) (en banc), we recently explained the legal principles governing the First Amendment rights of public employees:
It is well settled that citizens do not relinquish all of their First Amendment rights by virtue of accepting public employment .... A determination of whether a restriction imposed on a public employee‘s speech violates the First Amendment requires a balance 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 services it performs through its employees. This balancing involves an inquiry first into whether the speech at issue was that of a private citizen speaking on a matter of public concern. If so, the court must next consider whether the employee‘s interest in First Amendment expression outweighs the public employer‘s interest in what the employer has determined to be the appropriate operation of the workplace.
Id. at 406 (internal alterations and quotation marks omitted) (citing United States v. Nat‘l Treasury Employees Union (NTEU), 513 U.S. 454, 465, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995); Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). When applying this Pickering balancing test, the Supreme Court has suggested that “the Government‘s burden is greater” in cases like that at hand, involving “potential speech before it happens” than in cases involving “an adverse action taken in response to actual speech.” NTEU, 513 U.S. at 468, 115 S.Ct. 1003.
The district court identified these governing principles and applied them to hold that Mansoor had offered evidence sufficient to prove that the terms of the Plan operated as a prior restraint on his well-established First Amendment right to speak as a private citizen on matters of public concern, and thus concluded that the officers were not entitled to qualified immunity. See Mansoor v. County of Albemarle, 189 F.Supp.2d 426, 432-34, 440-41 (W.D.Va.2002). Appellants offer several arguments as to why the district court erred in so holding. We address these arguments in turn.3
With respect to the first prong of the qualified immunity analysis, Appellants contend that the Plan‘s limitation on future communications “relating to your employment” renders it constitutional. This could only be so, however, if the limiting phrase, “relating to your employment,” had to be interpreted to cover only matters not of public concern. But, in fact, matters “relating to your employment” clearly can encompass matters of public concern. For example, the Plan apparently would restrict Mansoor‘s right to speak about perceived racial problems within the department, a right we have explicitly held to be of public concern. See Cromer v. Brown, 88 F.3d 1315, 1325-26 (4th Cir.1996). Indeed, Appellants conceded at oral argument that the district court correctly noted that “there are matters which can relate to your employment which also relate to matters of public interest.”
Appellants also argue that Chief Miller made it clear at the December 30 meeting that the Plan did not refer to Mansoor‘s statements as a private citizen. They maintain that Mansoor admitted at deposition that Chief Miller explained that Mansoor would retain his rights to speak as a private citizen. This argument fails for several reasons. First, since there is no ambiguity in the terms of the Plan, Miller‘s oral statements are irrelevant to its interpretation. See, e.g., Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.2000) (“If the terms of the contract are clear and unambiguous, then we must afford those terms their plain and ordinary meaning.“). Moreover, as the district court observed, Miller‘s statements at the meeting are so confusing that they obviously do not clarify the meaning of the Plan, and they certainly do not make it clear that the Plan does not restrict protected speech. Not only was Miller‘s immediate response to Mansoor‘s question about rights as a private citizen confusing, but Miller later stated that there could be no confusion now “because it‘s in writing.” Finally, Mansoor‘s asserted deposition “admission” that Miller clarified the meaning of the Plan is taken out of context; Mansoor stated only minutes later that he understood the Plan to mean “you need to keep quiet .... I took it to mean that the document coupled with what I have personal knowledge of, that they didn‘t want me to speak up about anything at all in the department.”
Alternatively, Appellants maintain that they could have reasonably believed that the Pickering balancing test must be resolved in their favor, citing cases holding that a government employer has an interest in preventing disruption in the workplace. See, e.g., Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 354-55 (4th Cir.2000); Berger v. Battaglia, 779 F.2d 992, 1000-01 (4th Cir.1985). The problem with this contention is that, as the district court found, “the record fails to reflect any direct disruption caused by the plaintiff. Indeed, upon returning to work after his medical leave, the plaintiff received a letter of appreciation for his professional response to a local burglary ....” Mansoor, 189 F.Supp.2d at 436. Of course, the law does not require government officials to wait until a disruption has occurred before taking action, but in this case under the evidence proffered by Mansoor, there is no reason to believe that his conduct was likely to cause a disruption even prospectively, since it had not caused a disruption in the past.4
Moreover, even if Appellants had a legitimate interest in restricting Mansoor‘s unprotected comments about his employment, this does not justify the Plan‘s restriction on Mansoor‘s prospective speech about matters of public concern as a private citizen. In fact, Appellants conceded at oral argument that they had “absolutely” no interest in restricting Mansoor‘s right to speak, as a citizen, on matters of public concern.
Turning to the second prong of the qualified immunity analysis, there is little doubt, as the district court concluded, that the rights Mansoor claims were violated by the Plan were clearly established during the relevant time period. The Supreme Court articulated the principles governing this case in Pickering, decided in 1968, and Connick, decided in 1983. See Connick, 461 U.S. at 142, 103 S.Ct. 1684; Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Thus, when Appellants drafted the Plan and presented it to Mansoor in 1998, the governing principles had been established for at least fifteen years.
Appellants’ principal contrary argument is that in cases involving qualified immunity and the Pickering balancing test, the outcome of the balancing test can “only infrequently” be said to be “clearly established.” See DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir.1995). Although this is so, “we did not say [in DiMeglio] that a public employee‘s right to speak on matters of public concern could never be clearly established.” Cromer, 88 F.3d at 1326 (emphasis in original). In this case, as discussed earlier, Appellants have conceded that they had no interest in restricting the clearly protected speech covered
III.
For the foregoing reasons, the judgment of the district court denying Appellants qualified immunity is
AFFIRMED.
DIANA GRIBBON MOTZ
UNITED STATES CIRCUIT JUDGE