UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICHARD MUTSCHLER,
Plaintiff-Appellant,

v.

HOUSING AUTHORITY OF THE CITY OF
RALEIGH, NORTH CAROLINA; STEVE
BEAM, Former Acting Executive
Director, in his individual and
                                                               No. 97-1388
official capacities,
Defendants-Appellees,

and

FLOYD A. CARTER, Former Executive
Director, in his individual and
official capacities,
Defendant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-95-626-5-H)

Argued: October 31, 1997

Decided: November 24, 1997

Before HAMILTON, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Richard Woodson Rutherford, JOYCE L. DAVIS &
ASSOCIATES, Raleigh, North Carolina, for Appellant. Raymond
Mark Davis, CRANFILL, SUMNER, HARTZOG, L.L.P., Raleigh,
North Carolina, for Appellees. ON BRIEF: Joyce L. Davis, Zoe G.
Mahood, JOYCE L. DAVIS & ASSOCIATES, Raleigh, North Caro-
lina, for Appellant. Dan M. Hartzog, CRANFILL, SUMNER, HART-
ZOG, L.L.P., Raleigh, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

In October 1992, Lorraine Denise Hinton and her infant son, Shau-
nessy D. Jones, died after being overcome by carbon monoxide fumes
in their apartment at Walnut Terrace Apartments, a public housing
unit operated by the Raleigh Housing Authority (RHA). Investigators
determined that the carbon monoxide gas reached deadly levels in the
Hinton apartment due to poor installation and maintenance of the four
boilers located in a boiler room directly beneath the apartment.

The tragedy at Walnut Terrace generated a great deal of media
attention in the Raleigh, North Carolina, metropolitan area. Investiga-
tive reports in the Raleigh News & Observer and on Raleigh TV 5
focused their attention on the management of the RHA in an attempt
to find the party or parties responsible for the deaths of Hinton and
her son. During their reporting, members of the media unearthed a
cache of memoranda written by Richard Mutschler, head of mainte-
nance at Walnut Terrace, notifying management in the most urgent
terms that the boilers at the complex were dangerous. In April 1992,
for example, Mutschler wrote a memorandum encouraging manage-
ment at RHA to take action "now to prevent possible death or injury

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to residents and personnel." (J.A. at 92.) After the discovery of his
memoranda, Mutschler's name figured prominently in the newspaper
and television reports relating to the deaths at Walnut Terrace.

In response to the public demands for accountability, the RHA
Board of Directors decided to undertake an independent investigation
of the deficiencies leading to the deaths at Walnut Terrace. The inves-
tigator, Judge Howard Manning, Jr., went to the scene, reviewed the
documentation, interviewed members of management and the mainte-
nance workers at Walnut Terrace, and issued a thorough, detailed
report. The Manning Report concluded that "[a]ccountability for the
tragedy . . . rests . . . all the way from the top to the bottom of the
Raleigh Housing Authority." (J.A. at 314.) Specifically, Judge Man-
ning found that the deadly carbon monoxide buildup in the boiler
room was the result of a combination of the maintenance depart-
ment's failure to perform the routine task of tuning the boilers* and
management's failure to understand the import of keeping the boilers
tuned.

After the Manning Report was issued in March of 1993,
Mutschler's employment at RHA was terminated. He filed a com-
plaint in the Superior Court of Wake County, North Carolina, claim-
ing, inter alia, that his termination was in violation of the First
Amendment because it was the result of retaliation by RHA and its
then-director, Steve Beam, for statements made to the press about the
dangerous condition of the boilers prior to the deaths at Walnut Ter-
race. Defendants, RHA and Beam, removed the case to the federal
district court where they moved for summary judgment.

The motion was referred to a magistrate judge who issued a memo-
randum and recommendation that summary judgment be granted. The
_________________________________________________________________
*"Tuning a boiler" refers to a process by which the boiler's flue gasses
are evaluated to determine whether carbon monoxide output is within a
safe range. If the carbon monoxide level is too high, the oxygen and car-
bon dioxide intake of the boiler is adjusted until the carbon monoxide
output is sufficiently reduced. The tuning process can be accomplished
through the use of special monitoring equipment designed for the task or
can be attempted by "eye balling" the flame to determine whether it is
burning cleanly.

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magistrate judge concluded that Mutschler did not raise a genuine
issue of material fact as to all required elements of the First Amend-
ment retaliation claim. To make out such a claim the public employee
must show that the protected speech: (1) involved a matter of public
concern such that the employee's interest in making the protected
statement outweighed the employer's interest in maintaining an effi-
cient workplace, and (2) was a motivating or substantial factor in the
termination decision. See Hughes v. Bedsole, 48 F.3d 1376, 1385 (4th
Cir. 1995). If the plaintiff is able to make that showing, the burden
then shifts to the defendant to show, by a preponderance of the evi-
dence, that the same termination decision would have been made in
the absence of protected speech. See id. at 1386.

The magistrate judge assumed that Mutschler met his initial burden
of demonstrating protected speech that was a motivating or substan-
tial factor in the termination decision. The magistrate judge found,
however, that summary judgment was proper because defendants had
shown, by a preponderance of the evidence, that it was the Manning
Report's indictment of the routine maintenance practices at the Wal-
nut Terrace complex, of which Mutschler was in charge, that caused
his termination. Therefore, the magistrate judge concluded that defen-
dants had met their burden of proving that Mutschler would have
been terminated even in the absence of protected speech.

After de novo review, the district court adopted the magistrate
judge's memorandum and recommendation. The court additionally
found that plaintiff had failed to meet his initial burden of showing
that his speech had been a motivating or substantial factor in the firing
decision.

Mutschler appeals the district court's order, arguing that summary
judgment was improper because he put forth sufficient evidence to
raise a genuine issue of material fact as to whether RHA's firing deci-
sion was motivated by protected speech. Additionally, Mutschler
claims that the district court erred in finding that defendants had
shown by a preponderance of the evidence that the discharge would
have occurred in the absence of protected speech. We have reviewed
the record, briefs, and pertinent case law in this matter, and we have
had the benefit of oral argument. Our careful review persuades us that
the rulings of the district court were correct. Accordingly, we affirm

                    4
on the reasoning set forth in the district court's opinion. See
Mutschler v. Raleigh Hous. Auth., No. 5:95-CV-H-1 (E.D.N.C. Feb.
19, 1997).

AFFIRMED

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