UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT L. CUTTS; JABAR SHABAZZ,
Plaintiffs-Appellees,

and

GWENDOLYN B. BELL,
Plaintiff,

v.

CARL R. PEED, Sheriff of Fairfax
County Virginia, in his individual
and official capacity,
Defendant-Appellant,

and
                                       No. 00-1071

SHERIFF'S DEPARTMENT, for the
County of Fairfax, Virginia; JAMES
A. VICKERY, Chief Deputy Sheriff,
The Sheriff's Department for the
County of Fairfax, Virginia, in his
individual and official capacity;
LARRY GERBER, Captain of
Confinement, The Sheriff's
Department for the County of
Fairfax, Virginia, in his individual
and official capacity,
Defendants.
ROBERT L. CUTTS; JABAR SHABAZZ;
GWENDOLYN B. BELL,
Plaintiffs-Appellants,

v.

CARL R. PEED, Sheriff of Fairfax
County Virginia, in his individual
and official capacity; JAMES A.
VICKERY, Chief Deputy Sheriff, The
Sheriff's Department for the County
of Fairfax, Virginia, in his
individual and official capacity;                                   No. 00-1194
LARRY GERBER, Captain of
Confinement, The Sheriff's
Department for the County of
Fairfax, Virginia, in his individual
and official capacity,
Defendants-Appellees,

and

SHERIFF'S DEPARTMENT, for the
County of Fairfax, Virginia,
Defendant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-99-689-A)

Argued: December 4, 2000

Decided: August 24, 2001

Before WIDENER and MOTZ, Circuit Judges, and
Robert E. PAYNE, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

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No. 00-1071 affirmed and No. 00-1194 dismissed by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: John J. Brandt, James R. Parrish, BRANDT, JENNINGS,
ROBERTS, DAVIS & SNEE, P.L.L.C., Falls Church, Virginia, for
Appellant. Tim Schulte, Thomas Hunt Roberts, THOMAS H. ROB-
ERTS & ASSOCIATES, P.C., Richmond, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

This appeal and cross-appeal concern claims of employment dis-
crimination in violation of 42 U.S.C. § 1981 (1994), hostile work
environment in violation of 42 U.S.C. § 2000e(b) (1994), and retalia-
tion in violation of 42 U.S.C. §§ 1983 (1994) and 2000e-3 (1994).
African-American Fairfax County deputy sheriffs Robert Cutts, Jabar
Shabazz, and Gwendolyn Bell sue Sheriff Carl R. Peed in his individ-
ual and official capacity on all counts; they join as defendants in the
employment discrimination claim two other officials in the Sheriff's
office. The district court granted Sheriff Peed summary judgment on
all retaliation claims, except Cutts's and Shabazz's claims of retalia-
tory discharge. The court also granted summary judgment to all
defendants on all employment discrimination and hostile work envi-
ronment claims. Sheriff Peed now appeals and the deputies cross-
appeal. We affirm the denial of summary judgment appealed by Sher-
iff Peed and dismiss the cross-appeal.1 1
_________________________________________________________________
1 Because the district court set forth the underlying facts in detail, we
need only refer to them as necessary in the legal discussion that follows.

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I.

We first address the retaliation claims. The deputies have alleged
two categories of retaliation claims. We consider each in turn.

A.

In Counts IV through VI, the deputies state claims under § 1983
alleging that the Sheriff violated the First Amendment by firing them
for legitimate speech on a matter of public concern. In assessing
whether the Sheriff is, as he maintains, entitled to qualified immunity,
we must first determine whether the deputies have alleged a violation
of constitutional rights. For a public employee to state a claim for
retaliation under the First Amendment (1) the employee must speak
as a citizen on a matter of public concern, (2) the employee's interest
in speaking on the matter must outweigh the government's interest in
providing effective and efficient services to the public, (3) the
employee must be "adversely affected" by the alleged retaliation in a
manner that "tend[ed] to chill his . . . First Amendment rights" and
(4) the speech must be a "substantial factor in the decision to take the
allegedly [adverse] retaliatory action." Goldstein v. Chestnut Ridge
Volunteer Fire Co., 218 F.3d 337, 351-52 (4th Cir. 2000).

Ascertaining whether a matter is of public concern requires exami-
nation of the "content, form, and context" of the statement. Connick
v. Myers, 461 U.S. 138, 147-48 (1983); Goldstein, 218 F.3d at 352.
Although internal employment matters are not matters of public con-
cern, see Goldstein, 218 F.3d at 352, statements to the public, like
those at issue here, involving purported fraud and racial discrimina-
tion in a law enforcement agency, indisputably do constitute matters
of public concern. See id. at 353 (statements regarding public safety
are "quintessential matters of public concern"); Robinson v. Balog,
160 F.3d 183, 188 (4th Cir. 1998) (speech seeking to bring to light
"actual or potential wrongdoing or breach of public trust" is speech
on a matter of public concern); Cromer v. Brown , 88 F.3d 1315, 1326
(4th Cir. 1996) (allegations of racial discrimination within law
enforcement agency are matters of "serious public import").2  2
_________________________________________________________________
2 Sheriff Peed incorrectly characterizes the issue as whether the depu-
ties had a First Amendment right to "make knowingly false or reckless

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Because the deputies' speech involves a matter of public concern,
we turn to the question of whether their interest in making those state-
ments outweighed Sheriff Peed's interest in managing the internal
affairs of his office. The Sheriff contends that the undisputed facts
demonstrate that he was justified in taking all of the challenged
actions -- including discharging Cutts and Shabazz-- to protect his
office's efficiency from the disruption caused by the deputies' com-
plaints. Undoubtedly, charges of racial discrimination may impinge
upon the harmony among co-workers or interfere with the operation
of a sheriff's office. The record here, however, provides little evi-
dence that this actually occurred, or that the racially charged environ-
ment in the sheriff's office stemmed from these employees' remarks
rather than other people or events.

An employer wishing to defend against specific allegations of
impermissible retaliation must present evidence that the speech trig-
gering his actions actually interfered with the functioning of his
office, and may not merely assert a "generalized and unsubstantiated"
interest against disruptions. Goldstein, 218 F.3d at 356; Robinson,
160 F.3d at 189. The Sheriff has put forth only speculative and unsub-
stantiated charges of office disruption. Moreover, the government's
interest in efficiency generally bears more weight than an employee's
interest in commenting on matters of public concern only when the
employee-speaker is an agency-head or is in a policy making position.
See McVey v. Stacy, 157 F.3d 271, 278-79 (4th Cir. 1998). The depu-
ties were low ranking law enforcement officers without policy mak-
ing authority. Accordingly, at this juncture, the deputies have alleged
sufficient facts to satisfy the second prong of a retaliation claim.

As to the third and fourth prongs, that the speech was a substantial
factor resulting in an adverse action tending to chill First Amendment
rights, we agree with the district court that the discharges of Cutts and
Shabazz are the only truly adverse actions giving rise to retaliation
_________________________________________________________________
statements about racial issues." In determining whether a right is clearly
established for the purposes of qualified immunity"a court examines the
facts alleged by the plaintiff, not those asserted by the defendant."
Buonocore v. Harris, 65 F.3d 347, 357 (4th Cir. 1995). "[D]efendants
cannot demonstrate that . . . allegations do not state a violation of clearly
established law simply by substituting their own version of the facts." Id.

                  5
claims. To constitute actionable retaliation, conduct must adversely
impact First Amendment rights. See Suarez Corp. Indus. v. McGraw,
202 F.3d 676, 685 (4th Cir. 2000). De minimis actions do not consti-
tute adverse action for purposes of a First Amendment retaliation
claim. Id. at 686.

We must next determine whether the Sheriff is nonetheless entitled
to qualified immunity on the retaliatory discharge claims. He is not
entitled to such immunity if (1) the violation of the deputies' constitu-
tionally protected rights was clearly established at the time of the
challenged acts and (2) a reasonable official would have understood
that his conduct violated that clearly established law. See Henderson
v. Simms, 223 F.3d 267, 271 (4th Cir. 2000). In this case, the law was
clearly established; Connick and its balancing test were the law long
before 1998 when the challenged conduct took place. Moreover, we
agree with the district court that, if the deputies are able to prove their
allegations, this is the rare case in which a reasonable official in the
Sheriff's position would have understood that such conduct violated
clearly established law. Accordingly, we affirm the district court's
refusal to grant Sheriff Peed summary judgment on qualified immu-
nity grounds on Cutts's and Shabazz's retaliatory discharge claims
alleged in Counts IV through VI of their complaint. Likewise, we
affirm the grant of summary judgment on qualified immunity grounds
on their other retaliation claims and on all retaliation claims asserted
by Bell, who was never discharged.

B.

In Count III, the deputies alleged that, by retaliating against them
for protected activity, the Sheriff also violated Title VII. Although
this claim is similar to the § 1983 claims, contrary to the parties'
apparent belief, the Sheriff is entitled to qualified immunity only with
respect to the claims brought under § 1983; there is no qualified
immunity from liability under Title VII. See, e.g., Genas v. New York
Dep't of Correctional Servs., 75 F.3d 825, 829 n.3 (2d Cir. 1996);
Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991); Harvey
v. Blake, 913 F.2d 226, 228 (5th Cir. 1990). Thus, summary judgment
on the basis of qualified immunity would be improper as to the Title
VII claim set forth in Count III. Accordingly, we affirm the district

                  6
court's refusal to grant qualified immunity on this claim, albeit for
different reasons than those relied on by the district court.

II.

We next address the deputies' cross-appeal in which they contend
that the district court erred in granting summary judgment on their
employment discrimination claims (Court I) and hostile environment
claims (Count II). We refuse to exercise disfavored pendent appellate
jurisdiction to consider the cross-appeal; we note that the issues
involved in the cross-appeal are not "inextricably intertwined" with
the appealable order. Swint v. Chambers County Comm'n, 514 U.S.
35, 51 (1995); see also Armijo v. Wagon Mound Public Schs., 159
F.3d 1253, 1265 (10th Cir. 1998) (refusing to exercise pendent appel-
late jurisdiction to consider cross-appeal in case in which proper inter-
locutory appeal on qualified immunity is before the court); Erickson
v. Holloway, 77 F.3d 1078, 1081 (8th Cir. 1996) (same); Woods v.
Smith, 60 F.3d 1161, 1167 (5th Cir. 1995) (same). We therefore dis-
miss the cross-appeal.

III.

In sum, we affirm the district court's judgment denying qualified
immunity to Sheriff Peed on Cutts's and Shabazz's retaliation claims
under § 1983, which are set forth in Counts IV through VI of the
complaint, and on the retaliation claim under Title VII, which is set
forth in Count III. We dismiss the deputies' cross-appeal as to the dis-
trict court's judgment on Counts I and II.

No. 00-1071 - AFFIRMED

No. 00-1194 - DISMISSED

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