UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BUFORD T. MYERS,
Plaintiff-Appellee,

v.

TOWN OF LANDIS; GENE R. BEAVER,
                                                                       No. 96-1433
in his official capacity as Mayor of
the Town of Landis and in his
individual capacity,
Defendants-Appellants.

Appeal from the United States District Court
for the Middle District of North Carolina, at Salisbury.
Frank W. Bullock, Jr., Chief District Judge.
(CA-94-700-4)

Argued: December 5, 1996

Decided: February 20, 1997

Before HALL and NIEMEYER, Circuit Judges, and DAVIS,
United States District Judge for the District of Maryland,
sitting by designation.

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Affirmed in part, dismissed in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

ARGUED: James Redfern Morgan, Jr., WOMBLE, CARLYLE,
SANDRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina,
for Appellants. Robert Mauldin Elliott, ELLIOTT, PISHKO, GEL-
BIN & MORGAN, P.A., Winston-Salem, North Carolina, for Appel-
lee. ON BRIEF: David C. Pishko, ELLIOTT, PISHKO, GELBIN &
MORGAN, P.A., Winston-Salem, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

In this civil rights action for damages and injunctive relief, the
town of Landis, North Carolina, and its ex-mayor, Gene R. Beaver,
jointly appeal the interlocutory order of the district court denying
Beaver qualified immunity as to the claim by former town employee
Buford T. Myers that Beaver, acting in his individual capacity, vio-
lated Myers's First Amendment right to speak freely. We hold that,
insofar as this appeal has been taken by the town, it must be dis-
missed. With respect to that portion of the appeal properly before us,
we affirm the district court's decision, and we remand the case for
further proceedings.

I.

Landis is a small town of approximately 2,300 persons. Beaver,
who had previously served as mayor from 1969-79, was again elected
to the position in 1987, and his second tenure in office lasted until
1995. In July 1989, Myers, a mechanic with the town's Department
of Public Works, and Willie Deadmon, the Director of Public Works,
complained to Bobby Gene Brown, a town alderman, that Beaver had
misappropriated town property and labor for private purposes. These
three, along with three other Public Works Employees, met with the
County District Attorney concerning the allegations.

The DA asked the State Bureau of Investigation to look into the
matter; the SBI complied, assigning Agent J.W. Bryant to the case.
Bryant began his investigation by interviewing Beaver's accusers.

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On August 3, 1989, as Bryant was concluding his initial interviews
of Deadmon and Myers at the Public Works building, Beaver arrived.
When he saw Bryant, Beaver became angry, and he instructed the
agent not to speak with town employees during working hours. After
Bryant left, Beaver asked Deadmon and Myers to disclose the sub-
stance of the interviews, but, pursuant to the agent's instructions, both
remained mum.

A few weeks later, Deadmon was notified that his termination had
been proposed, ostensibly because of complaints from several citizens
that he had been discourteous to them. On September 5, 1989, at its
regular monthly meeting, the town's Board of Aldermen discussed
whether it should dismiss Deadmon.

At the outset of the meeting, Myers was permitted to read aloud a
lengthy, rambling statement that had been signed by twelve then-
current and former town employees. In essence, the statement voiced
the signatories' views that (1) Deadmon had been"railroaded on a
bunch of dreamed up charges," as the result of his cooperation with
the SBI; (2) town employees had once been unlawfully banned from
an open Board meeting; (3) Beaver had cursed employees and private
citizens alike; (4) Beaver had made, and would make, hiring and other
employment decisions for the town based on his perception of the
particular employee's or prospective employee's political allegiance;
(5) Beaver and two other aldermen had conducted a secret, illegal
Board meeting; and (6) legal proceedings against the town could be
instituted as the result of Beaver's perceived transgressions. The state-
ment also referred vaguely to employee "benefits" that Beaver had
caused to be cut, observing that the town had suffered from the result-
ing attrition in personnel.

Later that evening, the Board convened an executive session, dur-
ing which Deadmon's future as a town employee was discussed. The
aldermen split 2-2 on whether to terminate Deadmon's employment,
with Brown voting in the negative. Beaver broke the tie, voting to dis-
miss Deadmon.

The SBI submitted a final report of its investigation on October 16,
1989. The supervising agent noted that the DA, upon reviewing the

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case report, had advised the Bureau that he "did not see any prosecut-
able offense(s)."

About a year later, the town hired another mechanic, and Myers
was reassigned to general labor tasks. In the fall of 1991, the Board
voted to reclassify the town's employees according to the duties they
performed. Myers was reclassified as a "waste collector," and his pay
was cut from $12.68 to $7.03 per hour. In June 1993, Myers was
assigned to the mowing crew, on which he spent approximately one-
third of his time.

On March 7, 1994, the Board voted to hire a private company to
do the town's mowing; it then decided to terminate Myers, effective
March 31, 1994. Beaver presided over and participated in both the
1991 and 1994 meetings, during which the Board discussed and voted
on Myers's reclassification and, ultimately, his dismissal. On neither
occasion, however, was the Board deadlocked, which would have
required Beaver to cast his vote to break the tie.

Myers filed this action in state court on November 3, 1994, pursu-
ant to 42 U.S.C. § 1983. The complaint named the town and Beaver
as defendants, and it purported to sue Beaver in both his official and
individual capacities. Myers alleged that the defendants had taken the
several adverse employment actions against him because he had spo-
ken ill of Beaver to Bryant and had spoken against Beaver at the
Board meeting. According to Myers, the defendants' actions had
impermissibly abridged his freedom of speech as secured to him by
the First Amendment. Myers contended further that the defendants
had infringed on his right to free speech under the state constitution,
had denied to him his federal and state due process rights, and had
wrongfully discharged him in contravention of a state "whistle-
blower" statute.

The defendants removed the case to the district court on November
30, 1994, and they moved for summary judgment as to all claims. On
March 22, 1996, the district court issued a memorandum opinion and
order granting summary judgment to both defendants on Myers's sub-
stantive due process claims.1 The court also granted summary judg-
_________________________________________________________________
1 Myers had previously stipulated to having some of his other claims
dismissed with prejudice, including those alleging the violation of his
procedural due process rights.

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ment to Beaver as to the state free-speech and wrongful discharge
claims against him in his individual capacity.

The district court, however, denied Beaver's motion for summary
judgment as to the First Amendment claim against him in his individ-
ual capacity, ruling that he was not entitled to qualified immunity for
his alleged actions. The court likewise denied summary judgment to
the town on the First Amendment claim, as well as the state free-
speech and wrongful discharge claims.2 Beaver and the town timely
filed a joint appeal.

II.

A.

The district court ruled that all of the prerequisites had been met
to allow a trial of Myers's First Amendment claim against Beaver in
his individual capacity. The court held, as a matter of law, (1) that
Myers's "speech," both to Bryant and before the Board, addressed, at
its core, matters of public concern, see Pickering v. Board of Educ.,
391 U.S. 563, 574 (1968); and (2) that the town's interest in "the
effective and efficient fulfillment of its responsibilities to the public,"
Connick v. Myers, 461 U.S. 138, 150 (1983), was at its ebb in this
case, inasmuch as Myers's and Beaver's respective positions within
the government engendered no need for them to cultivate a close
working relationship, and any significant impairment of employee
morale or of any governmental function was not to be reasonably
apprehended as the result of Myers's speech.

The foregoing circumstances, according to the district court, com-
pelled it to conclude that Myers's constitutional right to speak out was
a clearly established one, of which Beaver should have known. Thus,
the court reasoned, Beaver could not avail himself of the defense of
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2 In addition, the district court denied summary judgment to Beaver on
the three surviving claims insofar as they alleged him to be liable in his
official capacity. The court correctly recognized these claims to be dupli-
cative of those against the town. See Kentucky v. Graham, 473 U.S. 159,
165-66 (1985).

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qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982).3

Our review of the record reveals no error in the district court's
analysis. We therefore affirm that court's decision to allow Myers to
proceed to trial on his First Amendment claim against Beaver individ-
ually, for the reasons stated in its memorandum opinion. Myers v.
Town of Landis, et al., No. CA-94-700-4 (M.D.N.C., Mar. 22, 1996).

B.

We are constrained, however, to remark further on one aspect of
the district court's qualified immunity analysis upon which it chose
_________________________________________________________________
3 See also Cromer v. Brown, 88 F.3d 1315, 1325 (4th Cir. 1996) (recog-
nizing that, under Pickering and Connick, analyzing whether the right to
engage in particular speech is clearly established, giving rise to a consti-
tutionally protected interest, is, at the threshold, a two-step process);
DiMeglio v. Haynes, 45 F.3d 790, 794-95 n.1 (4th Cir. 1995) (upon
determining that the plaintiff has alleged that a clearly established right
has been violated, a court must then decide whether a reasonable public
official would have known that his actions violated that right).

Myers, of course, is also charged with showing that Beaver actually
caused any or all of the adverse employment actions to have been taken
against him. In addition, Myers bears the initial burden of demonstrating
that the exercise of his right to speak freely was a"motivating factor" in
Beaver's decision to act against him. Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977). Finally, though causation be
proved to the extent described above, Beaver cannot be held liable if
Myers would have been transferred, demoted, or dismissed even in the
absence of the protected conduct. Id. The district court concluded that the
evidence raised a triable dispute concerning the extent of Beaver's influ-
ence over Board decisions, his ongoing animus toward Myers, and the
possibility that the adverse employment actions of which Myers com-
plains would have been taken in any event. See Fed. R. Civ. P. 56(c)
(summary judgment appropriate only where the pleadings, depositions,
affidavits, and other materials on file "show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment
as a matter of law"). Beaver does not challenge the lower court's findings
on this interlocutory appeal. See Johnson v. Jones, 115 S. Ct. 2151, 2156
(1995).

                    6
not to expound; though the point was largely ignored below, Beaver
has made it the cornerstone of his appeal. Beaver's argument relates
to the threshold Pickering determination, which the Supreme Court
has said implicates "the right of a public employee as a citizen, [to]
comment[ ] upon a matter of public concern." Connick, 461 U.S. at
143. We have recently isolated the "as a citizen" portion of the above
language to urge district courts in this circuit to evaluate not only the
content of the speech at issue to determine whether it addresses a mat-
ter of public concern, but also to consider the context in which the
speech is communicated. DiMeglio, supra note 3, at 805.

In DiMeglio, we opined that remarks made by a zoning inspector
at a citizens' meeting may not have been constitutionally protected,
because the inspector admitted that he attended the meeting as the
official representative of the county zoning office"in the good-faith
performance of his public duties." Id. We noted some uncertainty in
the law as to whether a public employee's statement,"spoken within
his public role and concerning a matter within the scope of his respon-
sibilities, [are] protected expressions upon which a retaliation claim
[can] be based." Id. We observed that this uncertainty could, in an
appropriate case, preclude the possibility that a public employee --
speaking merely as an employee -- possessed a clearly established
right to speak in a fashion inimical to his employer. Id.

DiMeglio simply has no application here. A town mechanic, unlike
a county zoning inspector, need not interact meaningfully with the cit-
izenry in order to adequately perform his public duties. Whereas a
zoning inspector is often required to exit the more familiar confines
of his office and conduct on-site examinations, attend citizens' meet-
ings, or otherwise actively associate with the public at large, the occu-
pation of mechanic entails no similar responsibilities; his "public
role," to the extent that it may exist, is exceedingly limited.

It is plain that Myers spoke to the SBI as a concerned citizen, and
not because his job required him to do so. His remarks before the
Board, though echoing the sentiments of others, were also made in his
role as citizen. Both instances of speech addressed matters of public
concern, and, absent a sufficiently important governmental interest in
denying him a voice, Myers was entitled to the protection of the First
Amendment.

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C.

Beaver takes the rather bizarre position that, inasmuch as he may
have been entitled to legislative immunity for his role in Board dis-
cussions preceding votes that ultimately resulted in adverse employ-
ment actions being taken against Myers, see Section I, supra, his
reasonable belief that he was immune as a legislator somehow confers
on him qualified immunity for his personal acts. This argument was
not raised below, and, in any event, it wholly ignores that Myers has
alleged (and has produced some evidence) that Beaver held consider-
able sway over the Board, effectively making its actions his own. See
note 3, supra.

III.

The town urges that we exercise our pendent appellate jurisdiction
to reverse the district court's denial of summary judgment as to the
remaining claims against it, insisting that those claims are "inextrica-
bly intertwined" with the district court's decision to deny Beaver
qualified immunity. See Swint v. Chambers County Comm'n, 115 S.
Ct. 1203, 1212 (1995); Taylor v. Waters, 81 F.3d 429, 437 (4th Cir.
1996).

We disagree. We would not consider supplemental state law claims
brought against the lone defendant in Taylor, and we are especially
reluctant to extend our jurisdiction over interlocutory appeals of deni-
als of qualified immunity to Section 1983 co-defendants who may not
even avail themselves of the defense. We therefore dismiss this
appeal to the extent that it has been taken by the town.

IV.

The district court's order denying summary judgment to Beaver is
affirmed. The town's appeal is dismissed, and the case is remanded
to the district court for further proceedings.

AFFIRMED IN PART, DISMISSED IN PART,
AND REMANDED

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