UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARK GILLEN; JOHN MORAN,
Plaintiffs-Appellees,

v.

WILLIAM R. HUGGINS, Individually
and as Sheriff of Anne Arundel
County,
Defendant-Appellant,
                                       No. 94-2654

and

ANNE ARUNDEL COUNTY; FRANCIS J.
ZYLWITIS, Individually and as
Criminal Justice Coordinator for
Anne Arundel County,
Defendants.

MARK GILLEN; JOHN MORAN,
Plaintiffs-Appellees,

v.

FRANCIS J. ZYLWITIS, Individually
and as Criminal Justice Coordinator
for Anne Arundel County,
                                       No. 94-2655
Defendant-Appellant,

and

ANNE ARUNDEL COUNTY; WILLIAM R.
HUGGINS, Individually and as Sheriff
of Anne Arundel County,
Defendants.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-92-3525-WN)

Argued: September 27, 1995

Decided: October 23, 1997

Before RUSSELL, ERVIN, and HAMILTON, Circuit Judges.

_________________________________________________________________

Reversed and remanded by unpublished opinion. Judge Ervin wrote
the opinion, in which Judge Russell and Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: Stuart Milton Nathan, Assistant Attorney General,
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL
SERVICES, Baltimore, Maryland, for Appellant Huggins; John Fran-
cis Breads, Jr., Assistant County Attorney, Annapolis, Maryland, for
Appellant Zylwitis. Alan Hilliard Legum, ALAN HILLIARD
LEGUM, P.A., Annapolis, Maryland, for Appellees. ON BRIEF: J.
Joseph Curran, Jr., Attorney General of Maryland, DEPARTMENT
OF PUBLIC SAFETY AND CORRECTIONAL SERVICES, Balti-
more, Maryland, for Appellant Huggins; Phillip F. Scheibe, County
Attorney, Annapolis, Maryland, for Appellant Zylwitis.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

                    2
OPINION

ERVIN, Circuit Judge:

William Huggins and Francis Zylwitis appeal the district court's
denial of their motion for summary judgment in a suit brought by for-
mer sheriff's deputies Mark Gillen and John Moran. Finding that the
defendants' alleged actions could not have violated clearly established
law at the time of these events, we reverse and direct the entry of
summary judgment in favor of the defendants.

I.

Appellees Mark Gillen and John Moran worked as deputy sheriffs
under the direction of Anne Arundel County Sheriff William R. Hug-
gins from 1985 until 1988, and then continued working as prisoner
transport officers until 1990. They allege that Huggins and Francis
Zylwitis, head of the county's Office of Criminal Justice and Correc-
tions, were involved in a conspiracy to terminate them from county
employment. The alleged conspiracy involved transferring appellees'
positions back and forth between departments so that Huggins could
ultimately deny approval for their return to the Sheriff's Department.
This conspiracy was allegedly undertaken in retaliation for appellees'
exercise of several constitutional rights.

Appellees sought recovery against Huggins, Zylwitis, and Anne
Arundel County under 42 U.S.C. §§ 1983 and 1985, 42 U.S.C.
§ 2000e-2 (Title VII), 18 U.S.C. § 245, and the common law tort of
abusive discharge; appellants sought dismissal or summary judgment
on all counts. On April 29, 1993, the district court dismissed all
claims against Anne Arundel County; all claims against Zylwitis and
Huggins brought under 42 U.S.C. § 1985, Title VII, and 18 U.S.C.
§ 245; and Moran's abusive discharge claim against Zylwitis and
Huggins. Appellants again moved for summary judgment on the
remaining § 1983 claim and the pendent state claim on the basis of
qualified immunity. They now appeal the district court's November
8, 1994, denial of that motion.

II.

Qualified immunity protects government officials from suits for
civil damages arising out of the exercise of their discretionary func-

                    3
tions. Harlow v. Fitzgerald, 457 U.S. 800, 817 (1981). The doctrine
applies when the conduct of government employees"does not violate
clearly established statutory or constitutional rights of which a reason-
able person would have known." Id. at 818.

As the jurisdictional basis for this appeal, appellants cite Mitchell
v. Forsyth, in which the Supreme Court held that"a district court's
denial of a claim of qualified immunity, to the extent that it turns on
an issue of law, is an appealable `final decision' within the meaning
of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment."
472 U.S. 511, 530 (1985), cited in Turner v. Dammon, 848 F.2d 440,
443 (4th Cir. 1988).

After this appeal had been filed and briefed, the Supreme Court
limited the availability of interlocutory appeals based on denials of
summary judgment when qualified immunity is at issue. In June 1995
the Court decided Johnson v. Jones, in which it held that defendants
asserting a qualified immunity defense could not immediately appeal
a district court's denial of summary judgment when that order "re-
solved a fact-related dispute about the pretrial record, namely whether
or not the evidence in the pretrial record was sufficient to show a gen-
uine issue of fact for trial." 132 L. Ed. 2d 238, 243 (1995). The plain-
tiff in Johnson asserted a § 1983 claim against several police officers,
claiming that they had used excessive force in his arrest. Id. The dis-
trict court denied some of the officers' claims for summary judgment,
finding sufficient circumstantial evidence to support the plaintiff's
theory. Id. The officers appealed before trial and the Seventh Circuit
held that it lacked jurisdiction to consider the question of evidentiary
sufficiency. Id. The Supreme Court affirmed, holding that "the Dis-
trict Court's determination that the summary judgment record in this
case raised a genuine issue of fact concerning petitioners' involve-
ment in the alleged beating of respondent was not a`final decision'
within the meaning of the relevant statute." Id. at 246-47. The Court
distinguished the Mitchell opinion as limited to cases in which the
denial of summary judgment is based only on "the purely legal issue
what law was `clearly established.'" Id . at 247.

We held this appeal in abeyance pending the decision in this
court's en banc consideration of Winfield v. Bass, 106 F.3d 525 (4th
Cir. 1997) (en banc), which involved an interpretation of the Court's

                    4
decision in Johnson.1 InWinfield, the district court denied defendants'
motion for summary judgment based on qualified immunity. The
defendants immediately appealed, challenging both whether the evi-
dence was sufficient to support the factual allegations and whether
"the undisputed facts disclose[d] that reasonable officers would have
understood that their conduct violated [plaintiff]'s clearly established
legal rights." Winfield, 106 F.3d at 530. This court rejected the first
argument as a proper basis for jurisdiction and relied instead on the
second. "[W]e possess no jurisdiction over a claim that a plaintiff has
not presented enough evidence to prove that the plaintiff's version of
the events actually occurred, but we have jurisdiction over a claim
that there was no violation of clearly established law accepting the
facts as the district court viewed them." Id.

Like the district court in Winfield, the district court in this case has
found that genuine issues of material fact are at issue. Were this fac-
tual finding the appellants' sole ground of contention, we would have
no jurisdiction to consider it as a final decision under 28 U.S.C.A.
§ 1291 (West 1993). But even assuming that the resolution of those
disputed facts favors the appellants, the appellees' alleged conduct
must nonetheless have violated clearly established statutory or consti-
tutional rights of which a reasonable person would have known. The
district court's denial of appellants' motion for summary judgment
necessarily indicates the court's ruling that a reasonable trier of fact,
assessing the undisputed facts and construing disputed facts in favor
of the non-movant, could find that the appellants violated a right of
which a reasonable person would have known. See Winfield, 106 F.3d
at 530. Our consideration of that ruling provides the jurisdictional
basis for this appeal.

III.

Summary judgment is appropriate when there is no genuine issue
of material fact and it appears that the moving party is entitled to
judgment as a matter of law. FED. R. C IV. P. 56(c); Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970). On summary judgment, all
evidence must be viewed in the light most favorable to the party
_________________________________________________________________
1 The order holding this case in abeyance was entered on February 23,
1996. Winfield v. Bass was decided on January 31, 1997.

                    5
opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986). Summary judgments are
reviewed de novo on appeal. Higgins v. E.I. DuPont De Nemours &
Co., 863 F.2d 1162, 1166-67 (4th Cir. 1988); Felty v. Graves-
Humphreys Co., 818 F.2d 1126, 1127-28 (4th Cir. 1987).

Appellees' complaint charges that appellants deprived them of their
rights to "freedom of speech and press, vote or run for office, right
to County employment, property right in employment and participate
in [sic] or enjoy any benefit or service provided by the Federal or
State government and further denied to Plaintiffs their right to sub-
stantive and procedural due process." Neither the complaint nor the
brief explicitly connects any of these alleged violations with specific
factual allegations, but the gist of the claim seems to be that appel-
lants wanted to get rid of appellees because, first, Gillen announced
his candidacy for sheriff; second, both appellees had some involve-
ment in some union activities; and third, both spoke to reporters
despite Sheriff Huggins's warning not to do so.

Appellees' complaint apparently is essentially one of retaliatory
discharge. The Fourth Circuit has explained this claim and its ele-
ments as follows:

          [A] state government entity may not deprive a person of
          valuable employment benefits in retaliation for that person's
          exercise of his first amendment rights. Plaintiffs asserting
          such first amendment retaliatory discharge, or whistle-
          blower, claims must establish three elements to state a claim
          under Section 1983: (1) "that the expressions which are
          alleged to have provoked the retaliatory action relate to mat-
          ters of public concern," . . . (2) "that the alleged retaliatory
          action deprived him of some valuable benefit," . . . and (3)
          that there was a causal relationship between the protected
          expression and the retaliatory action.

Wagner v. Wheeler, 13 F.3d 86, 90 (4th Cir. 1993) (citations omitted).
The initial burden of production with regard to the causation require-
ment falls on the plaintiff, who must present evidence that his pro-
tected expression was a "substantial" or "motivating" factor in his
termination. Id. Upon a successful showing by the plaintiff, the bur-

                    6
den of production shifts to the defendant, who must present evidence
that the termination decision would have been made even in the
absence of the protected expression, i.e., the constitutionally protected
behavior was not a "but for" cause. Id.2

Taking the evidence in the light most favorable to appellees, we
shall assume that appellees were terminated by appellants.3 To make
_________________________________________________________________

2 In the Wagner case, the plaintiff alleged that he had been terminated
from his state job in retaliation for reporting environmental violations to
Maryland's environmental officials. Id. at 88-89. The Fourth Circuit
overturned the District Court's denial of summary judgment for the
defendant, finding that the plaintiff had "failed to muster any real evi-
dence that the ostensibly legitimate reasons given for his termination
were pretextual." Id. at 90-91. Alternatively, the court held that even if
the plaintiff had carried this burden, the defendant also carried his burden
of showing that the protected speech was not the but-for cause of the
plaintiff's termination; the court noted that the plaintiff "was not termi-
nated simply through the actions or at the whim of[the defendant]
alone," as the plaintiff had also received two different reviews of the ter-
mination decision. Id. at 91-92.
3 Two key facts underlying this assumption are far from clear. First,
appellants may not have had the power to terminate appellees. In Anne
Arundel County, a county employee may only be discharged "by the
appointing authority," and for specific causes. Joint Appendix at 19 (cit-
ing Anne Arundel County Code § 808). Although each appellee lists
Zylwitis as one of his two appointing authorities while he worked as a
Prisoner Transport Officer in the Police Department, neither produces
any evidence that this is true. Each appellee acknowledged in his deposi-
tion that Richard Barker was listed as appointing authority on the "per-
sonnel action authorization" terminating his position. Further, Zylwitis,
whose job as Criminal Justice and Corrections Officer included coordi-
nating the public safety departments for the County's Chief Executive,
testified that he was not the appointing authority for appellees and did
not have authority to terminate their employment. At the time they were
discharged, appellees were not part of the Sheriff's Department, so Hug-
gins was clearly not their appointing authority.

Second, it is not clear that appellants were terminated; their positions
simply may have been abolished for budgetary reasons. Zylwitis testified
that the decision to privatize the prisoner transportation function that led
to appellees' loss of their jobs came not from him, but from the budget

                     7
out a claim of retaliatory discharge, appellees must show that they
were terminated because of their constitutionally protected conduct.
There has been no showing that appellants took any action in retalia-
tion for the exercise of constitutional rights. One alleged basis for the
retaliatory discharge was Gillen's candidacy for sheriff. When asked
what facts he was aware of in support of this allegation, Gillen simply
said,

          I believe Huggins dismissal of me was directly in relation to
          my campaign effort against his position. Thereby by him
          removing my financial means of support, he was directly not
          allowing me to utilize my monies to use the press and
          papers and freedom of speech against his office and his
          position. (emphasis added)

However, Gillen's subjective belief and the fact that he lost income
are insufficient to create a genuine issue of material fact as to any
improper motivation on Huggins's part. Gillen also admitted that the
earliest point at which he could prove Sheriff Huggins's knowledge
of his candidacy was when he filed for office in February 1990, well
after appellees were transferred from the Sheriff's department.

A second constitutional right allegedly at issue is appellees'
involvement in union activities. In Moran's deposition, he explained
that he and Gillen were "key" in drafting the contract between the
union and the county, and he "drafted letters to delegates concerning
problems at the sheriff's department." He does not allege any friction
in the contract negotiations, nor any generalized discord between the
union and Sheriff Huggins. His claim that his drafting of letters
played some role in his discharge is vague as well, since it is not clear
whether the letters generated any response, or whether Huggins even
knew about them.
_________________________________________________________________
process. Once the privatization decision was made and the positions were
to be transferred back to the Sheriff's Department, Huggins decided to
fill the positions through the competitive process rather than automati-
cally accepting appellees for the jobs. For appellees to prevail, these bud-
getary considerations would have to be shown to be pretext for the
termination decision.

                     8
The third basis upon which appellees claim retaliatory discharge is
freedom of speech and/or press. Moran testified in his deposition that
he "was interviewed by several newspapers in which [he] expressed
[his] opinions on how the sheriff's department was run," and was dis-
ciplined. Moran does not allege that his speech was constitutionally
protected and he did no more than claim that he was punished after
this speech without a showing of any causal relationship. Gillen testi-
fied that "Huggins has warned us many times when we were in his
employment down there that he didn't want us going to the press with
anything about the office or his abilities to manage it." Gillen could
not provide further specifics, and he did not even allege that he in fact
spoke with the press or that Huggins knew or believed that he had.
Thus, again there is no showing of any causal connection between this
conduct and the discharge.

As evidence of appellants' alleged engineering of appellees' dis-
charge, appellees' brief cites only their own depositions. For instance,
appellees cite the Moran deposition as "[a]cknowledging a dislike of
Moran and Gillen by Defendants"; "[s]tating that Moran and Gillen
were involved in drafting letters to delegates concerning problems
with the Sheriffs' [sic] Office on behalf of the Union"; and
"[i]dentifying `political motivation' as the reason for Plaintiffs' dis-
charge." Appellees cite Gillen's deposition to show that "Sheriff Hug-
gins sought termination of Plaintiffs in order to financially starve
Gillen's campaign for Sheriff." Appellees, in addition to failing to
provide any evidence of appellants' alleged motivations other than
their own (appellees') "beliefs" and speculation, also fail to show that
these motivations were "substantial" or "motivating" factors in the
decision to terminate them. Felty v. Graves-Humphreys Co., 818 F.2d
1126, 1128 (4th Cir. 1987) ("Unsupported speculation is not sufficient
to defeat a summary judgment motion.").

Even assuming arguendo that an alleged conspiracy to terminate
appellees grew out of retaliation for appellees' constitutionally pro-
tected activities, appellants have shown a lack of causation. Moran
did not apply for the sheriff's deputy job and Gillen failed the physi-
cal.

The district court declined to grant summary judgment on the basis
of the following factual disputes: "which county entity actually

                     9
employed Plaintiffs at the time their positions were eliminated, [and]
which county official was actually responsible for the employment
decisions at issue in this case." Appellees have failed to produce any-
thing other than speculation that their termination was in retaliation
for the exercise of any constitutional rights. Therefore, the district
court erred in denying the appellants' motion for summary judgment.

IV.

Maryland courts recognize a cause of action for abusive discharge
available to employees who have been fired in contravention of public
policy. Adler v. American Standard Corp., 432 A.2d 464, 473 (Md.
1981). The action applies when an "employee has refused to act in an
unlawful manner or attempted to perform a statutorily prescribed
duty," id., has exercised a statutory right or privilege, or has per-
formed an important public function, Makovi v. Sherwin-Williams
Co., 561 A.2d 179, 182 (Md. 1989). A discharge in violation of con-
stitutional rights is an abusive discharge. Leese v. Baltimore County,
497 A.2d 159, 172 (Md. App.), cert. denied, 501 A.2d 845 (Md.
1985).

Assuming, as did the district court, that "a discharge based on can-
didacy for office violates Maryland public policy," this claim also fal-
ters due to Gillen's failure to point to any admissible evidence that his
discharge was in fact based on his candidacy for office. The district
court erred in declining to grant summary judgment in favor of defen-
dants.

V.

Because the district court erred when it refused to grant summary
judgment in favor of William Huggins and Francis Zylwitis in the
§ 1983 suit brought against them by Mark Gillen and John Moran, we
reverse the decision below and direct that summary judgment be
entered in favor of defendants.

REVERSED AND REMANDED

                     10
