13 F.3d 86 (4th Cir. 1993), 91-2288, Wagner v. Wheeler

Docket Nº:91-2288.
Citation:13 F.3d 86
Party Name:Merle T. WAGNER, Plaintiff-Appellee, v. Richard J. WHEELER, Defendant-Appellant, and Harford County Government, Defendant.
Case Date:December 01, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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13 F.3d 86 (4th Cir. 1993)

Merle T. WAGNER, Plaintiff-Appellee,


Richard J. WHEELER, Defendant-Appellant,


Harford County Government, Defendant.

No. 91-2288.

United States Court of Appeals, Fourth Circuit

December 1, 1993

Argued June 3, 1992.

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Jefferson Lee Blomquist, argued (Emory A. Plitt, Jr. and Stephen W. Lutche, on brief), Harford County Dept. of Law, Bel Air, MD, for defendant-appellant.

Norris Carlton Ramsey, Baltimore, MD, argued (Gary N. Bowen, on brief), for plaintiff-appellee.

Before WIDENER and HAMILTON, Circuit Judges, and STAMP, United States District Judge for the Northern District of West Virginia, sitting by designation.


WIDENER, Circuit Judge:

In this action arising under 42 U.S.C. Sec. 1983, Richard J. Wheeler appeals from an order of the United States District Court for the District of Maryland denying his motion for summary judgment. Wheeler sought summary judgment on the grounds that the doctrine of qualified immunity shielded him from liability for the conduct alleged in the complaint. The district court denied his motion and held that a factual dispute remained for resolution at trial. We are of opinion that the plaintiff-appellee Merle T. Wagner has failed to adduce evidence from which a jury could reasonably find that Wheeler's

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conduct violated Wagner's clearly established federal constitutional rights. Accordingly, we reverse and remand for entry of judgment in favor of Wheeler on the Section 1983 claims. The remaining state law claim also is remanded to the district court as will be mentioned later.


Wagner was an employee of the Division of Facilities and Operations of the Department of Public Works of Harford County, Maryland (the Division). Wheeler was Wagner's immediate supervisor and Chief of the Division which he had been made head of in early 1983. Wagner first came to the attention of Wheeler's supervisor, Mrs. Georgia Hodsdon, the county Director of Administration, while Wagner was a prisoner in the Harford County Detention Center. Mrs. Hodsdon was impressed with Wagner's work as a prisoner and therefore arranged to give him a job with the Division upon his release in the Fall of 1984.

Though Wagner's job performance apparently was satisfactory for a time, the record reflects that his employment with the county became rather turbulent beginning probably in early 1986. As we shall examine more thoroughly below, the evidence adduced at a county administrative proceeding indicated that Wagner's employment between 1985 and 1988 was marked by increasingly serious infractions of work rules, incidents of insubordination and conflict with his supervisors, Wheeler included, and generally substandard work performance. Though the parties, of course, dispute the causes, it is undisputed that in April, 1988, in accordance with termination procedures established by Harford County ordinance, Wheeler, at the instance of Mrs. Hodsdon, recommended to Mrs. Hodsdon and the county Personnel Officer, Mrs. Christine Coudon, that Wagner be fired. See Harford County Code Sec. 38-38D. Mrs. Hodsdon and Mrs. Coudon concurred with that recommendation and thus Wagner was granted a pre-termination hearing on April 22, 1988, where he was afforded an opportunity to show Mrs. Coudon why he should not be fired. Following that hearing Mrs. Coudon, Mrs. Hodsdon, and Richard G. Herbig, an attorney on the county's legal staff, determined that Wagner had failed to establish that his termination was not warranted and, therefore, Wagner was terminated effective April 22, 1988.

Wagner then exercised his right to appeal his termination to the county Personnel Advisory Board, a three-member body created by the Harford County charter to hear such appeals and perform other employment-related supervisory and policy tasks for the county. See Harford County Charter Secs. 606-607. Wagner's hearing before the Board commenced on July 6, 1988, and ran at length, resulting in a transcript of some 520 pages. It was open to the public. At the hearing Wagner was represented by counsel, called witnesses to testify in his behalf, and cross examined witnesses testifying on behalf of the county. Following the completion of the hearing, on August 8, 1988, the Board affirmed the Personnel Officer's decision to terminate Wagner. 1 Unsatisfied with the outcome of the county administrative proceedings, Wagner turned to the federal courts for relief. On August 29, 1990, Wagner filed suit against Wheeler and Harford County in the United States District Court for the District of Maryland. The complaint sought damages under 42 U.S.C. Sec. 1983 on the grounds that Wagner had been discharged in violation of his rights under the first and fourteenth amendments to the United States Constitution and that he had been subjected to verbal abuse and harassment in violation of his federal constitutional rights. The complaint further alleged claims under the state tort theories of intentional infliction of emotional distress and abusive discharge. After some procedural maneuvering not relevant here, Wagner pressed only two claims,

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both only against Wheeler individually: the Section 1983 claim and the state-law intentional infliction of emotional distress claim. Harford County is not a party to this appeal, all claims against the county having been dismissed with prejudice with the agreement of plaintiff Wagner.

Wagner identifies two factual bases for the instant suit. His primary contention is that Wheeler brought about his termination not on the legitimate grounds of poor performance and insubordination, but rather in retaliation for Wagner's actions in reporting to Maryland environmental officials two alleged violations of environmental regulations committed by the Division. Specifically, Wagner alleged that in early 1988 he had reported to environmental officials that Division employees were engaged in the improper and illegal removal of asbestos from county buildings, and that a malfunctioning county sewer system had caused pollution to be unlawfully discharged into a river. Thus, goes the argument, Wheeler's decision to recommend Wagner's discharge was in retaliation for those reports and thereby violated Wagner's right to free speech under the first and fourteenth amendments.

The balance of Wagner's claims arise out of certain verbal harassment that Wheeler allegedly inflicted upon Wagner on one or more occasions during his employment with the Division...

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