UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN SCOTT WORRELL,
Plaintiff-Appellant,

and

LINDA RUTH PARKER,
Plaintiff,

v.

ROGER MORRIS BEDSOLE, in his
                                                               No. 95-2816
official capacity as Sheriff of
Cumberland County and
individually; CUMBERLAND COUNTY,
NORTH CAROLINA,
Defendants-Appellees.

SOUTHERN STATES POLICE
BENEVOLENT ASSOCIATION,
Amicus Curiae.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CA-94-778-5-F)

Argued: September 24, 1996

Decided: April 3, 1997

Before MURNAGHAN, Circuit Judge, BUTZNER,
Senior Circuit Judge, and HALLANAN,
Senior United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________
Affirmed in part, reversed in part, and remanded by unpublished
opinion. Senior Judge Butzner wrote the opinion, in which Judge
Murnaghan and Senior Judge Hallanan joined.

_________________________________________________________________

COUNSEL

ARGUED: Joseph Michael McGuinness, MCGUINNESS & PAR-
LAGRECO, Elizabethtown, North Carolina, for Appellant. Bobby
Grey Deaver, Fayetteville, North Carolina; Douglas Edward Canders,
Staff Attorney, CUMBERLAND COUNTY ATTORNEY'S OFFICE,
Fayetteville, North Carolina, for Appellees. ON BRIEF: Ronald D.
McSwain, BOOSE & MCSWAIN, Fayetteville, North Carolina, for
Appellant. Gregory K. Kornegay, Wilmington, North Carolina, for
Amicus Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

BUTZNER, Senior Circuit Judge:

John Scott Worrell appeals the order of the district court granting
summary judgment to Sheriff Morris Bedsole, who is sued individu-
ally and in his official capacity, and to Cumberland County, North
Carolina. Worrell brought this action under 42 U.S.C. § 1983 and five
sections of Article 1 of the North Carolina Constitution claiming that
Bedsole unlawfully discharged him for exercising his free speech
rights as a public employee. The district court found that Worrell
failed to offer sufficient evidence showing that his speech was a sub-
stantial or motivating factor for his discharge. We affirm the order
granting summary judgment to Cumberland County. We reverse the
order granting summary judgment for Bedsole with respect to Wor-
rell's claim because there are genuine issues of material fact in dis-
pute. Consequently, we reinstate Worrell's state law claims.

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I

On October 1, 1991, Bedsole fired Worrell from the Sheriff's
Department of Cumberland County, North Carolina, where he had
been employed for over 18 years. Prior to his termination, Worrell
served as a Lieutenant in the Special Operations Unit (SOU), a divi-
sion created to combat narcotics and prostitution in Cumberland
County. During September and October of 1991, Worrell complained
to Sheriff Morris Bedsole and Captain Art Binder about manpower
and equipment shortages in the SOU. Specifically, Worrell felt that
the defective police radios, unreliable police cars, and personnel and
equipment shortages were threatening the safety of those working
underneath him. Worrell expressed these concerns to Bedsole and
Binder on several occasions prior to his termination. Bedsole
acknowledged the shortcomings in his department but stated that "in
my budget, you do with what you get." Bedsole's budget was con-
trolled by the county commissioners, and he had been unsuccessful
in acquiring extra funds to pay for new equipment and additional per-
sonnel.

On the morning of October 8, 1991, Worrell met with Bedsole,
Binder, and senior administrative officials to discuss complaints that
had been lodged against him as supervisor of the SOU. Members of
the SOU had complained to Binder and Bedsole that Worrell slept on
the job, was often unavailable to assist members of his unit, and that
his subordinates had begun to lose respect for him as a supervisor.
After reviewing these complaints with Worrell, Bedsole demoted him
to a sergeant position in the Patrol Division. Worrell left the meeting
and told Bedsole that "he would be getting a letter." Bedsole testified
that although upset, Worrell's tone was not threatening or abusive
towards him or any of the other senior officers at the meeting, and his
behavior was not inappropriate.

The next day, Worrell stayed home on sick leave and called Ser-
geant Tony Hart, a member of the SOU, to express his frustration
with Bedsole's decision to demote him. According to Binder, Worrell
told Hart to "tell that pig-faced, chicken cooking, motherf----- to
come out there and fire him and bring that n----- Bowser and that
bastard Binder with him." Hart relayed this message to Binder, who
ordered Hart to repeat it to Bedsole. Bedsole discussed the matter

                    3
with Senior Advisor Richard Washburn and instructed Washburn to
fire Worrell for insubordination. Worrell denies ever making this
derogatory statement to Hart.

Washburn visited Worrell at his home the next day, October 9,
1991, and orally terminated him. Worrell alleges that Washburn
warned him that if he spoke out against the sheriff or the department,
they would take it out on his fiance, Ruth Parker, who was also
employed by Bedsole. When Worrell relayed the message to Parker,
she resigned from her job. Worrell also alleges that Washburn told
him to stay away from J. W. Jones, a former employee who was chal-
lenging the sheriff's decision to fire him. Washburn has not denied
making these statements. The next day, Bedsole sent Worrell a termi-
nation letter which informed Worrell that he had been fired for "in-
subordination" and "unprofessional and disruptive conduct."

Worrell and Parker sued Bedsole and Cumberland County for retal-
iatory discharge based on several related federal and state constitu-
tional claims. The pivotal portion of Worrell's complaint alleged that
he was fired for exercising his right to free speech with respect to
deficiencies in equipment and personnel in violation of the First
Amendment.

The district court granted summary judgment for Bedsole on all
federal claims, finding that Worrell offered no evidence that his com-
plaints about the manpower and equipment shortages were a "substan-
tial and motivating" factor for his termination. The district court also
dismissed the claims against Cumberland County "due to the peculiar-
ities of North Carolina law regarding a Sheriff's independence from
the County Commissioners." He dismissed Parker's claims on the
basis of her deposition that disclosed no evidence that Bedsole had
retaliated against her. Exercising its discretion, the district court dis-
missed the state law claims without prejudice. Parker did not appeal
the district court's adverse order.

The issues before us on appeal include whether Worrell's speech
was constitutionally protected and whether there exists a genuine
issue of material fact about why Worrell was fired. Worrell claims
that he was fired for speaking out to the sheriff about faulty equip-
ment and personnel shortages within the department. Bedsole claims

                     4
that the sole reason he fired Worrell was for making the crude, insub-
ordinate remark to Hart. Worrell denies making the remark.

We review summary judgment orders de novo, drawing all infer-
ences in favor of the nonmoving party. United States v. Carolina
Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992). Summary judg-
ment is appropriate when there exists no genuine issue of material
fact and judgment may be decided as a matter of law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). To prevail on his First
Amendment claim, Worrell must show (1) that his speech was consti-
tutionally protected and (2) that the speech was a"substantial" or
"motivating" factor for his firing. Hughes v. Bedsole, 48 F.3d 1376,
1385 (4th Cir. 1995).

II

To determine whether Worrell's speech was constitutionally pro-
tected, we balance Worrell's right to comment on matters of "public
concern" against the interest of the government agency in effectively
and efficiently administering its duties to the public. Pickering v.
Board of Education, 391 U.S. 563, 568 (1968). Speech involves mat-
ters of public concern when it affects the social, political, or general
well-being of a community. Connick v. Myers, 461 U.S. 138, 146
(1983). The answer to the public concern inquiry rests on "whether
the `public' or the `community' is likely to be truly concerned with
or interested in the particular expression, or whether it is more prop-
erly viewed as essentially a `private' matter between employer and
employee." Berger v. Battaglia, 779 F.2d 992, 999 (4th Cir. 1985). To
perform this inquiry, Connick instructs courts to examine the content,
context, and form of the employee's speech in light of the entire
record. 461 U.S. at 147-48.

The content of Worrell's speech reflected a concern for the safe
and effective operation of the police force--a matter of genuine pub-
lic concern. Campbell v. Towse, 99 F.3d 820, 828 (7th Cir. 1996);
Zorzi v. City of Putnam, 30 F.3d 885, 896-97 (7th Cir. 1996). As we
recently noted in Cromer v. Brown, 88 F.3d 1315, 1330 (4th Cir.
1996), "[f]or a police force to be effective it must have the respect and
support of its community as well as its officers . . . ." When a super-
vising officer such as Worrell voices concerns about departmental

                     5
deficiencies which affect the department's ability to serve and protect
the community, that speech bears heavily on the public interest.
Campbell, 99 F.3d at 828.

On numerous occasions, Worrell expressed concerns to Bedsole
and Binder about deteriorating equipment in the SOU. He complained
that the malfunctioning police radios and police vehicles posed a seri-
ous threat to the safety of the men in his unit. The police cars often
would not crank while officers were on surveillance, and frequent
vehicle breakdowns forced the officers to "team up" on road patrol.
The old radios would often "fade out," impeding officers who
depended on them during undercover investigations.

Worrell also spoke out about manpower and office equipment
shortages. He made repeated requests for additional personnel
because he felt that Bedsole was using employees to perform politi-
cal, rather than law-enforcement functions. He also noted how offi-
cers brought their own typewriters to work because the outdated
manual typewriters in the office made it difficult for officers to keep
up with their required paperwork. Deficiencies in departmental
resources, from equipment to training and personnel, ultimately affect
the level of service provided to the public, and are therefore matters
of public concern. Campbell, 99 F.3d at 828 (allocation of police
departmental resources involve questions of serious public import).

In considering the context of the speech, the fact that Worrell chose
to voice his concerns within the department does not strip his speech
of constitutional protection. Matters of public concern that are spoken
in private discussions with an employer receive the same constitu-
tional protections as public speech. Givhan v. Western Line Consol.
School Dist., 439 U.S. 410, 413-16 (1979). Worrell addressed his
superiors in private on behalf of the SOU concerning its inability to
operate efficiently. There is no evidence that Worrell spoke out as a
means of promoting his own self-interest within the department. Cf.
Piver v. Pender County Board of Education, 835 F.2d 1076, 1080
(4th Cir. 1987).

Worrell's interest in voicing his concerns was not outweighed by
the interest of the sheriff's department in "promoting efficiency and
integrity in the discharge of its official duties." Police agencies, as

                     6
paramilitary organizations, have a heightened need to maintain disci-
pline and uniformity within their ranks. Jurgensen v. Fairfax County,
Va., 745 F.2d 868, 880 (4th Cir. 1984). However, there is no evidence
that Worrell's speech caused any disruption within the day-to-day
operations of the sheriff's department. Nor is there anything in the
record which suggests that the speech caused Bedsole to lose confi-
dence in Worrell's loyalty to the department. In fact, Bedsole does not
contend that Worrell's speech caused him to discharge Worrell on the
ground that he caused disruption in the operation of the sheriff's
department.

Worrell must also provide evidence that the protected speech was
a "substantial" or "motivating" factor for his firing. Mt. Healthy City
Board of Ed. v. Doyle, 429 U.S. 274, 287 (1977). Bedsole may defeat
the claim if he can show by a preponderance of the evidence that he
would have discharged Worrell even in the absence of the protected
conduct. Id.

Worrell claims that Bedsole fired him solely for speaking out about
resource deficiencies within the department. Worrell voiced his con-
cerns to Binder and Bedsole several times leading up to his termina-
tion, the last time occurring approximately one week before he was
discharged. Though Binder and Bedsole did not disagree with his
concerns, Worrell claims that they began to react coldly towards him
as he intensified his requests for better resources.

When Washburn orally terminated Worrell, he admonished him not
to speak out against the sheriff "if he knew what was good for him"
and not to hang around J. W. Jones. Jones was a former employee
who was then embroiled in a retaliatory discharge suit against Bed-
sole. Neither Bedsole nor Washburn denies that these threats were
conveyed to Worrell.

On this record prepared for summary judgment, we think Bedsole
has not carried his burden of showing that he would have fired Wor-
rell even if he had not engaged in the protected speech. Bedsole
asserts that he fired Worrell for making a disparaging remark about
him to Tony Hart. He submits that "but for" the insubordinate remark,
he would not have fired Worrell. As evidence that the remark was his
sole motivation for firing Worrell, Bedsole points to the fact that he

                    7
fired Worrell immediately after learning about the crude remark. He
also notes that the termination letter informed Worrell that he was
fired for "insubordination," though the letter does not specify the
actual insubordinate conduct. Moreover, Bedsole claims that Worrell
attempted to resign after learning of his demotion and that the insub-
ordinate remark simply sealed his fate.

The insubordinate statement that Worrell allegedly made to Hart is,
by itself, a legitimate basis for firing a public employee. But there is
a genuine dispute whether Worrell actually made the remark. Hart
claims he did; Worrell says he did not. There is no evidence that any-
one other than Hart heard Worrell at the time they conversed. Resolu-
tion of this conflict turns on assessment of credibility. When viewed
in the light most favorable to Worrell, the evidence and reasonable
inferences are sufficient for a reasonable jury to conclude that Wor-
rell's protected speech was a "substantial" or a "motivating" factor for
his discharge.

Since there remain genuine issues of material fact with respect to
Bedsole's motive for terminating Worrell, summary judgment is inap-
propriate. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th
Cir. 1979).

This case is distinguishable from Hughes v. Bedsole, 48 F.3d 1376,
1387-88 (4th Cir. 1995), on which Bedsole relies. In Hughes, the
plaintiff, a shift supervisor at the Cumberland County jail, alleged that
Bedsole fired her for speaking out about understaffing at the jail and
improper training of jail employees. Bedsole claimed that he fired
Hughes for leaving jail doors unlocked on two separate occasions.
Hughes acknowledged that she left the doors unlocked one time. This
court affirmed summary judgment for Bedsole on the nonpretexual
ground that Hughes was fired because of her breach of security. Con-
sequently, there was no proof that Hughes' speech was a substantial
or motivating factor for her firing. Id. at 1387-88. The disputed fac-
tual issues at the heart of Worrell's claim were simply not present in
Hughes.

III

Worrell also claims that Bedsole deprived him of his Fourteenth
Amendment procedural rights. He asserts that Waters v. Churchill,

                     8
511 U.S. 661 (1994), required Bedsole to conduct a reasonable inves-
tigation to determine whether Worrell actually made the insubordinate
statement before he discharged him.

Strictly speaking, the Court's holding in Waters is inapplicable to
this case. Waters dealt with the question whether an employee's
speech was protected. The Court held that if an employer is con-
fronted with plausible, conflicting versions of the speech, the
employer should conduct a reasonable investigation to determine
what the employer reasonably believed an employee said.

The nature and content of Worrell's speech about the deficiencies
in the department's equipment and personnel are undisputed, unlike
the situation in Waters. But Hart's report is disputed. Waters, never-
theless, offers instruction about resolution of the dispute about Bed-
sole's motive for firing Worrell. The initial question for the trier of
fact is what Bedsole reasonably thought Worrell said to Hart, not
what Worrell actually said, taking into consideration all of the facts
and circumstances Bedsole knew about Hart and about Worrell. See
Waters, 511 U.S. at 669 and 680-82. If Bedsole's belief was reason-
able there was no need for him to conduct an investigation. See
Waters, 511 U.S. at 680. But Bedsole was under a duty to make a rea-
sonable investigation before acting if the trier of fact finds that Bed-
sole's belief could not be based on simply what he knew about Hart
and Worrell. See Waters, 511 U.S. at 681. This analysis will assist the
trier of fact in determining Bedsole's motive in firing Worrell--
whether it was because of his belief in Hart's report or Worrell's pro-
tected speech. See Waters, 511 U.S. at 682. These procedures give
adequate weight to Bedsole's right to conduct his department effi-
ciently and without insubordinate disruption while at the same time
protecting the rights afforded to Worrell by the First and Fourteenth
Amendments.

IV

The district court properly dismissed Cumberland County as a
party. A county may only be held liable for acts for which the county
has "final policymaking authority." See City of St. Louis v.
Praprotnik, 485 U.S. 112, 123 (1988). Whether a county or county

                    9
official has final policymaking authority in a specific area is a ques-
tion of state law. Id.

In North Carolina, the Office of Sheriff is a legal entity separate
and distinct from the Board of County Commissioners because a sher-
iff is elected by the people, not employed by the county. N.C. Gen.
Stat. § 162-1. The sheriff, not the county, has final policymaking
authority over the personnel decisions in his office. Clark v. Burke
County, 117 N.C. App. 85, 89, 450 S.E.2d 747, 749 (1994). N.C. Gen.
Stat. § 153A-103 provides that each elected sheriff "has the exclusive
right to hire, discharge, and supervise the employees in his office."
This authority may not be delegated to another person or entity. N.C.
Gen. Stat. § 162-24. We agree with the district court's conclusion that
"Bedsole's final policy-making authority over his personnel decisions
in the Sheriff's Department is his alone and is not attributable to
Cumberland County."

Worrell relies on cases in which the acts of a sheriff were imputed
to the county. E.g., Dotson v. Chester , 937 F.2d 920, 926-932 (4th
Cir. 1991); Flood v. Hardy, 868 F. Supp. 809, 812-813 (E.D.N.C.
1994). Dotson applied Maryland law to require the county to pay
attorney fees assessed against the sheriff. Dotson is not controlling
authority for this case, which necessarily must examine North Caro-
lina law. Flood in turn relies on Dotson . Flood appears to be contrary
to Clark, 117 N.C. App. at 89, 450 S.E.2d at 749, and Peele v. Provi-
dent Mut. Life Ins. Co., 90 N.C. App. 447, 449-50, 368 S.E.2d 892,
894 (1988), both of which held that because North Carolina grants a
sheriff exclusive authority over personnel matters in his office, an
employee of his office is not an employee of the county and cannot
maintain a suit against the county. Moreover, N.C. Gen. Stat. § 162-8
requires a sheriff to furnish a bond payable to the state of North Caro-
lina. A person injured by the "neglect, misconduct, or misbehavior"
of the sheriff may bring a cause of action against both the sheriff and
the surety. N.C. Gen. Stat. § 58-76-5. Williams v. Adams, 288 N.C.
501, 503, 219 S.E.2d 198, 200 (1975). County liability is not contem-
plated by this statute.

V

After the district court granted summary judgment to Bedsole, it
declined to exercise supplemental jurisdiction over Worrell's state

                     10
law claims. Because we are reinstating Worrell's federal claims, we
reinstate his state law claims. We affirm the grant of summary judg-
ment to Cumberland County. We reverse the summary judgment
granted to Bedsole on Worrell's claims. The case is remanded for fur-
ther proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED
IN PART; AND REMANDED

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