Martha L. PIKE; Cynthia J. Kincer, Plaintiffs-Appellees, v. Kermit L. OSBORNE, individually and in his capacity as Sheriff of Wythe County, Virginia, Defendant-Appellant.
No. 01-2050.
United States Court of Appeals, Fourth Circuit.
Argued April 4, 2002. Decided July 29, 2002.
301 F.3d 182
On the first day, Ziemianski himself approached individual employees, handed them a notice, and asked them directly if they would appear in the video. The notices were not in the form of a general announcement nor did they include assurances that participation was voluntary and would result in no benefits or reprisals, as required. Although the notices stated that the company would accommodate requests not to be included, that does not meet the required level of assurances regarding the consequences of that choice.
Finally, the Board found that Allegheny Ludlum had committed a number of other unfair labor practices, including “threats of job loss and layoffs and the discriminatory discharge of a leading union activist, creat[ing] an atmosphere which would reasonably tend to coerce employees into agreeing to participate in the videotape.” Id. Allegheny Ludlum argues that the four unfair labor practices found by the Board are not relevant to this case and that one occurred after the filming and election. However, even if we disregard the practice that occurred after the election, the Board‘s finding that the company engaged in a number of unfair labor practices, in violation of the fourth requirement, is based on the record.
In order to meet the requirements set forth by the Board, an employer‘s solicitation of its employees to appear in an anti-union video must satisfy all five requirements. Because substantial evidence supports the Board‘s finding that Allegheny Ludlum failed to satisfy at least some of the requirements, we must uphold the Board‘s determination that Allegheny Ludlum violated section 8(a)(1).
IV.
CONCLUSION
For the reasons set forth, we will deny Allegheny Ludlum‘s Petition for Review
ARGUED: Jim Harold Guynn, Jr., Guynn Law Offices, Roanoke, Virginia, for Appellant. Donald Wise Huffman, Huffman & Nixon, P.C., Roanoke, Virginia, for Appellees. ON BRIEF: Robert Hines, Montgomery & Hines, Jonesville, Virginia, for Appellees.
Before NIEMEYER, Circuit Judge, HAMILTON, Senior Circuit Judge, and 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.
OPINION
NIEMEYER, Circuit Judge.
Cynthia J. Kincer and Martha L. Pike,
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 dispatcher. Martha Pike was hired as a dispatcher in 1996, also by Sheriff 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 nomination for sheriff for the November 1999 general election. Wayne Pike‘s son also sought that nomination, and his campaign was supported 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 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
II
To resolve the qualified immunity issue in this case, we first determine whether the facts alleged, taken in the light most favorable to the plaintiffs, demonstrate that Sheriff Osborne violated a constitutional right of the plaintiffs. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If we determine that the plaintiffs have alleged a violation of a constitutional right, we then
Sheriff Osborne contends that the plaintiffs failed to show that they were not rehired because of their support for Wayne Pike‘s campaign 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, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (holding that the plaintiff has the initial burden of showing that his conduct was constitutionally protected and that the conduct was a “substantial factor” or a “motivating factor” 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 supported 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 reappoint the plaintiffs would violate their constitutional rights. In determining 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
For the foregoing reasons, we reverse the order of the district court denying Sheriff Osborne qualified immunity and remand with instructions 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
The law in this circuit is clear that sheriffs in Virginia have the right to lawfully terminate their deputies for political affiliation reasons. 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 affiliation reasons. Our decision in Jenkins sends mixed signals to sheriffs in this regard. On the one hand, a dispatcher with access to confidential 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 deputies 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.“) (footnotes omitted), id. n. 66 (citing Zorzi v. County of Putnam, 30 F.3d 885, 892 (7th Cir. 1994)), which held that dispatchers were not involved in law enforcement activities or making policy, and, therefore, 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 communicator, 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 dispatchers 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 concludes 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.