Smith v. Gilchrist

• Decision Date: 14 May 2014
• Docket Number: No. 12–2503.,12–2503.
• Citation: 749 F.3d 302
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: Sean P. SMITH, Plaintiff–Appellant, v. Peter S. GILCHRIST, III, Defendant–Appellee.

749 F.3d 302

Sean P. SMITH, Plaintiff–Appellant,

v.Peter S. GILCHRIST, III, Defendant–Appellee.

No. 12–2503.

United States Court of Appeals,Fourth Circuit.

Argued: March 18, 2014.

Decided: May 14, 2014.

ARGUED:Matthew Robert Arnold, James Bradley Smith, Arnold & Smith, PLLC, Charlotte, North Carolina, for Appellant. Grady L. Balentine, Jr., North Carolina Department of Justice, Raleigh, North Carolina, for Appellee. ON BRIEF:Roy Cooper, Attorney General, Kathryn H. Shields, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS, Senior Circuit Judge.

Reversed and remanded by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge DUNCAN and Senior Judge DAVIS joined.

TRAXLER, Chief Judge:

Sean P. Smith appeals a district court order granting summary judgment against him in his § 1983 action alleging that he was fired for exercising his free-speech rights in violation of the United States and North Carolina Constitutions. Concluding that the district court erred in granting summary judgment, we reverse and remand for trial.

I.

Smith was employed as an assistant district attorney (“ADA”) for the Mecklenburg County, North Carolina, District Attorney's office (the “DA's office”) from 2004 through July 2010. In his last several years with the DA's office, he worked on the crimes-against-persons team. Peter Gilchrist was the elected district attorney (“DA”) during Smith's tenure.

In February 2010, Smith met with Gilchrist to notify him of his intention to declare his candidacy for the office of Mecklenburg County district court judge. Gilchrist initially told Smith that to run for the office he would need either to resign from his position as ADA or take an unpaid leave of absence until the November election. However, Smith later brought to Gilchrist's attention the existence of North Carolina General Statute § 126–13(b), which Smith interpreted as entitling him to run without resigning from his position as an ADA. As a result, Gilchrist reconsidered and informed Smith that he could run for judge without resigning or taking a leave of absence. Smith subsequently formalized his candidacy.

A few months later, on his own time and at his own expense, Smith attended a four-hour defensive-driving course in Charlotte that the nonprofit Safety and Health Council of North Carolina (“SHC”) offered to ticketed drivers.¹ According to Smith, ticketed drivers would receive a pamphlet about the course from the ticketing police officer. Drivers who took the course were required to pay court costs and pay $60 to the driving school, but they received a “prayer for judgment continued” (“PJC”) and were not assessed a fine.² This program substantially reduced the number of cases that the DA's office and the courts were required to handle, freeing up resources that could be used for other matters.

On Friday, July 9, 2010, Smith gave an on-camera interview to the Charlotte FOX television affiliate detailing concerns he had about the defensive-driving course. Smith gave the interview as a part of his judicial campaign, and it was not related to his responsibilities as an ADA in the crimes-against-persons team, which did not include anything “related to traffic court.” J.A. 131. The following Wednesday, Gilchrist, having been contacted by the interviewer for a reaction to the criticism by one of his ADAs regarding the course, called Smith to ask if he had given the interview. When Smith said he had, Gilchrist asked him to come to his office immediately. Smith then met with Gilchrist and Deputy DA Bart Menser in Gilchrist's office, whereupon the three engaged in a brief conversation.

Gilchrist had not seen the interview. Rather, Smith's description of the interview during this meeting was the sole basis for Gilchrist's knowledge of what Smith had said. Smith told Gilchrist that he gave the interview as part of his campaign for judge, and according to Gilchrist, Smith voiced three concerns: first, that the students of the course were not paying attention; second, that law enforcement officers were giving legal advice to ticketed drivers regarding whether they should take the course; and third, that some drivers who decided to take the course and receive PJCs were harming themselves by losing the option to obtain a PJC for a future citation. Gilchrist testified that none of these concerns “had to do with Mecklenburg County District Attorney policy.” J.A. 126; see also J.A. 128 (Gilchrist's testimony that Smith in the interview “did not criticize any of [Gilchrist's] policies.”).

In addition to discussing what Smith had said during the interview, Smith, Gilchrist, and Menser also discussed Smith's views generally regarding the defensive-driving program. According to Menser, Smith explained to Gilchrist and Menser that Smith “had issues with the driving school and with the fact that the District Attorney's Office was involved in recommending that people go to the driving school.” J.A. 148. Menser testified that Smith told Gilchrist and Menser that Smith “didn't think the driving school was a good idea.” J.A. 148.

At the end of the conversation, Menser asked Smith if there were any other policies of the DA's office with which he disagreed.³ Gilchrist testified that Smith said that there were, but when Smith was asked to identify the specific policies, Smith said, “I decline to answer.” J.A. 60 (internal quotation marks omitted). The following day, Gilchrist terminated Smith's employment. He did not provide Smith with any reason for the termination. He testified, however, that Smith's refusal to identify the DA's office policies with which he disagreed was the sole reason he was terminated. Gilchrist testified that he considered that refusal to be “insubordinate.” J.A. 60.

Smith subsequently brought an action in federal district court seeking money damages against Gilchrist in his individual capacity. See42 U.S.C. § 1983. Smith alleged that the statements he made during the television interview were a substantial motivation for Gilchrist's decision to fire him and that the firing violated his free-speech rights under the United States and North Carolina constitutions. In his answer to the complaint, as is relevant here, Gilchrist denied firing Smith for making the statements during the interview, and he asserted public-official and qualified immunity.

Following discovery, Gilchrist moved for summary judgment, arguing only that Smith had failed to forecast evidence creating a genuine issue regarding whether the interview was a substantial motivation for Gilchrist's decision to fire Smith. After Smith filed a response challenging the asserted lack of evidence, and Gilchrist filed a reply, the district court sua sponte requested that the parties brief an issue not previously argued by Gilchrist—whether qualified immunity provided an absolute defense to Smith's claims.⁴ In response to the district court's direction, Gilchrist again focused on the asserted lack of evidence that Smith's public statements were a substantial motivation for his firing. Gilchrist agreed that “[i]t is uncontested that [Smith] was speaking as a citizen on a matter of public concern, and there are no relevant facts to challenge finding that [Smith's] interest in speaking outweighed the government's interest in providing effective and efficient services to the public.” J.A. 296. Nevertheless, Gilchrist presented the argument that even assuming Smith had created a jury issue regarding causation, Gilchrist was entitled to qualified immunity based on the subtlety of the test for determining whether an employee's interest in speaking as a private citizen on a matter of public concern is outweighed by the employer's interest in efficiency. See DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir.1995) (“[O]nly infrequently will it be clearly established that a public employee's speech on a matter of public concern is constitutionally protected, because the relevant inquiry requires a particularized balancing that is subtle, difficult to apply, and not yet well-defined.” (internal quotation marks omitted)). Gilchrist contended that because Smith's “interview criticized the policies of the office for which he worked,” a reasonable official in the DA's position might have believed he was constitutionally justified in firing Smith for making the statements. J.A. 299. In Smith's supplemental brief, as is relevant here, Smith noted that Gilchrist had conceded that the statements were protected, and Smith repeated his view that there was a genuine factual issue regarding Gilchrist's motivation for firing him.

The district court then granted summary judgment to Gilchrist. See Smith v. Gilchrist, No. 3:10–cv–636–RJC–DLH, 2012 WL 5985487 (W.D.N.C. Nov. 28, 2012). In so doing, the court assumed that Smith had created a jury issue regarding whether his constitutional rights had been violated, but concluded that Gilchrist was entitled to qualified immunity because a reasonable official in Gilchrist's position could have believed that the interest of the DA's office as employer in suppressing Smith's speech outweighed Smith's interest in speaking as a citizen on a matter of public concern. See id. at *9–11. The court concluded that the same reasons entitled Gilchrist to public-official immunity on the state-law claim. See id. at *12.

II.

Smith first argues that the district court erred in granting summary judgment against him on his First Amendment claim. We agree.

“We review a district court's decision to grant summary judgment de novo, applying the same legal standards as the district court and viewing all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party.” T–Mobile Ne. LLC v. City Council of Newport News, 674 F.3d 380, 384–85 (4th Cir.2012) (internal quotation marks omitted). Summary judgment is appropriate “if the movant shows that there...