789 F.3d 389 (4th Cir. 2015), 14-1081, Hunter v. Town of Mocksville
| Citation | 789 F.3d 389 |
| Opinion Judge | WYNN, Circuit Judge: |
| Party Name | KENNETH L. HUNTER; RICK A. DONATHAN; JERRY D. MEDLIN, Plaintiffs -- Appellees, v. TOWN OF MOCKSVILLE, NORTH CAROLINA; ROBERT W. COOK, in his official capacity as Administrative Chief of Police of the Mocksville Police Department and in his individual capacity; CHRISTINE W. BRALLEY, in her official capacity as Town Manager of the Town of Mocksville |
| Attorney | Stephen John Dunn, VAN HOY, REUTLINGER, ADAMS & DUNN, Charlotte, North Carolina, for Appellants/Cross-Appellees. Robert Mauldin Elliot, Helen Parsonage, ELLIOT MORGAN PARSONAGE, PLLC, Winston-Salem, North Carolina, for Appellees/Cross-Appellants. Jaye E. Bingham-Hinch, Raleigh, North Carolina, Pa... |
| Judge Panel | Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. Judge Wynn wrote the majority opinion, in which Judge Diaz joined. Judge Niemeyer wrote a dissenting opinion. NIEMEYER, Circuit Judge, dissenting: |
| Case Date | June 15, 2015 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Fourth Circuit |
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Argued December 9, 2014.
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Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. (1:12-cv-00333-CCE-JEP). Catherine C. Eagles, District Judge.
ARGUED:
ON BRIEF:
OPINION
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" Almost 50 years ago, th[e Supreme] Court declared that citizens do not surrender their First Amendment rights by accepting public employment." Lane v. Franks, 134 S.Ct. 2369, 2374, 189 L.Ed.2d 312 (2014). A threshold question for determining " whether a public employee's speech is entitled to protection" is whether the employee " spoke as a citizen on a matter of public concern." Id. at 2378 (quotation marks and citation omitted).
In this Section 1983 case alleging First Amendment rights violations, viewing the evidence in their favor--as we must at summary judgment, Plaintiffs--officers of the Mocksville Police Department (" Mocksville PD" ) in Mocksville, North Carolina--reached out as concerned citizens to the North Carolina Governor's Office about corruption and misconduct at the Mocksville PD. The district court therefore rightly rejected Defendants' argument that Plaintiffs' outreach enjoyed no First Amendment protection. For this and other reasons explained below, we affirm the district court's denial of summary judgment to Defendants Robert W. Cook and Christine W. Bralley.
I.
Viewing the evidence in the light most favorable to Plaintiffs, the non-movants, as we must at the summary judgment stage, the evidence shows that Plaintiffs Kenneth L. Hunter (" Hunter" ), Rick A. Donathan (" Donathan" ), and Jerry D. Medlin (" Medlin" ), served as police officers with the Mocksville PD. Hunter, an assistant chief, had worked for the Mocksville PD since 1985; Donathan, a lieutenant, had been with the Mocksville PD since 1998; and Medlin had served as an officer since 2006. All three Plaintiffs had distinguished careers with the Mocksville PD, receiving honors and promotions throughout their tenures.
Defendant Robert W. Cook (" Cook" ) joined the Mocksville PD as police chief in 2005.1 Over time, Plaintiffs became concerned about Cook's behavior and leadership. For example, Plaintiffs saw Cook drink alcohol publicly, excessively, and while in uniform and feared that it reflected poorly on the Mocksville PD. Plaintiffs also believed that Cook violated the law by driving a police car with blue flashing lights and behaving as if he were a certified law enforcement officer when, in reality, he had never been certified and was only an " administrative" chief. Plaintiffs suspected that Cook and his ally and deputy chief, Daniel Matthews, were together mismanaging Mocksville PD and other public funds and even using those funds for personal gain. Plaintiffs perceived racial discrimination at the Mocksville PD. And Plaintiffs believed that Cook " fixed" tickets for his friends.
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Plaintiffs independently raised such concerns about Cook with Mocksville Town Manager, Defendant Christine W. Bralley (" Bralley" ). Yet they noticed no improvement after reporting their concerns to Bralley and instead perceived reasons to worry about retaliation. Donathan, for example, raised his concerns with Bralley and was soon thereafter criticized by Matthews about a concern he had raised with Bralley. And a month after Medlin sent Bralley a sealed letter detailing concerns about the Mocksville PD, Cook demoted him. (That demotion was ultimately reversed.)
In November 2011, the situation at the Mocksville PD escalated. Cook reorganized the department, elevating Matthews to second-in-command and stripping Hunter, one of only two African-Americans at the Mocksville PD, of his supervisory responsibilities. Hunter filed a grievance about his demotion, but his grievance, and concerns, were dismissed. Donathan, on the other hand, was invited to Cook's home, instructed to " adhere to the 'politics' of the MPD," and promoted to lieutenant. J.A. 161.
In early December 2011, five Mocksville PD officers, including all three Plaintiffs, met privately to discuss their concerns about Cook and his ally Matthews. At that meeting, Plaintiffs decided to seek an investigation by an outside agency into corruption at the Mocksville PD. According to Hunter, Plaintiffs made this decision because they felt, " as citizens of the community, that Mocksville deserved an effective police force that served everyone equally" and not because they felt it was " part of our job duties." J.A. 137.
Plaintiffs set up a meeting with local representatives of the National Association for the Advancement of Colored People (" NAACP" ), who, after hearing Plaintiffs' concerns, advised them to contact a state agency. Accordingly, Plaintiffs decided to contact the North Carolina Attorney General. Hunter had his " daughter purchase a disposable phone at Wal-Mart that could be used to report our citizen complaints separately from our affiliation with the MPD." Id.
On December 14, 2011, Plaintiffs got together and used the disposable phone to call the Attorney General's Office. The Attorney General, however, referred Plaintiffs to local authorities who were closely aligned with Cook and whom Plaintiffs therefore felt they could not contact. Plaintiffs then called the North Carolina Governor's Office, again using the disposable phone. Without identifying either themselves or the Mocksville PD, Plaintiffs conveyed some of their concerns, including their suspicions that Cook embezzled funds, had a drinking problem, and masqueraded as a certified officer with powers to, for example, use blue lights and pull people over even though he was only an administrative chief without the authority to do so. The Governor's Office representative asked for a telephone number at which someone could return the call, and Plaintiffs gave the number for the disposable phone.
Later that day, someone else from the Governor's Office called the disposable phone. Donathan answered the call, spoke to the representative, and identified the Mocksville PD to the representative. The Governor's Office representative offered to request that the State Bureau of Investigation (" SBI" ) investigate the Mocksville PD.
The next week, Medlin saw the local SBI Agent, D.J. Smith, at the Mocksville PD offices. Plaintiffs knew that Smith had a close relationship with both Cook and Matthews. Medlin saw Smith show Matthews a piece of paper and saw the two men look for Cook. On December 22,
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2011, Plaintiffs received a message from Smith, who called the disposable phone. Smith left a message identifying himself and stating that he was following up on the request for an investigation. Plaintiffs did not return the call because " we did not trust any local authorities in investigating our concerns because of Chief Cook's influence" and thus " disposed of the phone for fear that Chief Cook may search the police department and find it." J.A. 140.
As it turned out, the phone was nevertheless " found." Smith contacted the Davie County Sheriff's Office, the county in which Mocksville is located, and asked an officer there to check whether the phone number used to make that complaint belonged to anyone at the Sheriff's Office. The Sheriff's Department officer contacted the Mocksville PD and asked an officer there to run the number through Mocksville PD records. The officer also called the disposable phone himself--though Plaintiffs did not pick up.
On December 27, 2011, Bralley contacted Sprint customer service to set up an online account, explaining that she wanted to check call records for a specific telephone number. The Sprint invoice issued that same day for the billing period ending December 23, 2011 included phone calls to the disposable phone's number. Both Donathan and Medlin had placed calls to and received calls from the disposable phone using their Mocksville PD-issued mobile phones.
On December...
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