                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-2317


SCOTT A. STICKLEY,

                Plaintiff - Appellant,

           v.

TIM SUTHERLY, Individually, and in his official capacity as
Chief   of  Police,   Town   of  Strasburg;   KEVIN FAUBER,
Individually, and in his official capacity as Town Manager,
Town of Strasburg; TOWN OF STRASBURG, VIRGINIA,

                Defendants - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.     Samuel G. Wilson,
District Judge. (5:09-cv-00004-sgw)


Argued:   December 8, 2010                 Decided:   March 14, 2011


Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and David A.
FABER, Senior United States District Judge for the Southern
District of West Virginia, sitting by designation.


Affirmed by unpublished opinion.    Senior Judge Faber wrote the
opinion, in which Chief Judge Traxler and Judge Wynn joined.


Annette Kay Rubin, Leesburg, Virginia, for Appellant. Rosalie
Fessier, TIMBERLAKE, SMITH, THOMAS & MOSES, PC, Staunton,
Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
FABER, Senior District Judge:

     The    parties    in      this    case       ask    us     to    decide    whether      the

district court (a) correctly granted defendants Tim Sutherly and

Kevin   Fauber     qualified       immunity        for     an       alleged    violation      of

appellant     Scott    Stickley’s           First       Amendment        rights      and     (b)

whether    the    district      court       correctly         held     that    the    Town   of

Strasburg incurred no municipal liability as a consequence of

Sutherly    and    Fauber’s      actions.           We     agree      with     the   district

court’s     holdings      on    both    qualified             immunity        and    municipal

liability, and accordingly affirm the district court’s grant of

summary judgment in defendants’ favor.



                    I. Factual and Procedural Background

     Appellant      Scott      Stickley       joined          the    Strasburg,      Virginia

Police Department (“SPD”) in 1996.                       Stickley received a number

of promotions during his years with the SPD and earned high

marks on his assessments.               In 2006 Stickley applied to be the

Chief of Police, but was not selected.                         Instead, the town chose

Tim Sutherly as the new Chief in February 2007.

     During the spring of 2007, Sutherly allegedly made comments

to people in the community indicating his intention to dismiss

Stickley    from    the     SPD.       On    July       10,     2007,    Sutherly      placed

Stickley    on    administrative        leave,          suspended      Stickley’s      police

powers incident to a disciplinary action, and assigned him to

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the position of School Resource Officer.                      Stickley alleges that

he    received    comments         from     residents     stating       that      Sutherly

intended to further retaliate against Stickley in the future.

Toward the beginning of August 2007, Stickley’s situation began

to receive attention in the local press.                      The Northern Virginia

Daily     published       a    front-page         article       on     police      officer

discipline in Strasburg, and a letter to the editor followed the

article,    calling     for    a    community-wide        discussion         of    the    SPD

disciplinary actions.          On May 29, 2008, without any apparent new

developments, Sutherly demoted Stickley to the position of a

Patrol Officer, reassigned Stickley’s duties as primary firearms

instructor to another officer, and forbade Stickley from filing

a grievance about the demotion and reassignment.

      Shortly     thereafter,        Carl     Rinker,     a    Town     Council     Member

approached Stickley and asked him about his demotion.                              The two

allegedly had a casual conversation, after which Rinker called

Sutherly to discuss Stickley’s demotion.                       Following Sutherly’s

conversation       with       Rinker,        Sutherly         placed      Stickley         on

administrative leave while the SPD investigated whether Stickley

had   violated    SPD     regulations        by   going       outside    the      chain   of

command    in    talking      to    Rinker.        In    response,       Stickley        sent

Sutherly    a    grievance         notice    on   June    11,        2008,   alleging      a

violation of Stickley’s First Amendment rights, among others.

The next day, Stickley went before a Board of Inquiry, convened

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at Sutherly’s behest, accused of insubordination.                                On June 20,

2008, Sutherly advised Stickley that his employment would be

terminated because the Board of Inquiry had found that Stickley

had   committed         two     Category         III     infractions        of        the    SPD

regulations.           Specifically,           Sutherly       and   Kevin     Fauber,         the

Strasburg       Town    Manager,        dismissed       Stickley     for    having          taken

“action which [would impair] the efficiency or reputation of the

department,       its        members,     or        employees”      and    had     committed

“insubordination or serious breach of discipline.”                                    Brief of

Appellant,       p.    14.      At    oral      argument,        counsel    for       Stickley

conceded that Stickley did not follow the prescribed grievance

procedure in voicing his objections to his demotion.                               The Board

of Inquiry did not address Stickley’s alleged First Amendment

violations.

      On February 4, 2009, Stickley filed a 42 U.S.C. § 1983 suit

in the United States District Court for the Western District of

Virginia alleging a violation of his First Amendment rights with

respect    to    his    conversation           with    Carl    Rinker      and    subsequent

dismissal    from       the    SPD.       The    district      court      granted      summary

judgment in favor of defendants and this appeal ensued.

      We   review       de    novo    a   district       court’s      grant      of    summary

judgment and view the facts in the light most favorable to the

nonmoving party.         Beverati v. Smith, 120 F.3d 500, 503 (4th Cir.

1997).

                                                4
                                   II.     Analysis

             A. Qualified immunity for Sutherly and Fauber

     “Qualified immunity shields government officials performing

discretionary     functions      from    personal-capacity         liability        for

civil damages under § 1983, insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person could have known.”                       Campbell v.

Galloway, 483 F.3d 258, 270 (4th Cir. 2007) (internal quotations

omitted).    Qualified immunity protects a defendant regardless of

whether the government official’s error is "one of fact or one

of law.”    Butz v. Economou, 438 U.S. 478, 507 (1978).

     In determining whether a defendant is entitled to qualified

immunity, a court need not first determine whether the defendant

actually    violated   the     plaintiff’s     statutory      or   constitutional

rights.      Pearson      v.   Callahan,     129   S.   Ct.   808,    818    (2009).

Instead,    the   court    may   first     determine    whether      the    right    in

question was “clearly established” at the time of the alleged

violation, and if it was not, the court need go no further.                         Id.

at 816.     The court’s holding in Pearson thus makes optional what

had previously been mandatory under Saucier v. Katz, 533 U.S.

194 (2001); namely, that the court first determine whether a

violation of a plaintiff’s right had in fact occurred and only

then consider whether that right was “clearly established.”                         Id.

at 818.     The Supreme Court noted that while the Saucier sequence

                                         5
“is    often    appropriate,”         the   courts    “should       be    permitted     to

exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed

first in light of the circumstances in the particular case at

hand.”        Id.     Having heard the parties’ arguments and reviewed

the    record,       we    believe    it    appropriate      to     forego     making    a

determination of whether defendants actually violated Stickley’s

First    Amendment         rights.     Instead,       we    consider      only    whether

Stickley’s right to comment on his demotion within the Strasburg

Police Department was clearly established at the time defendants

dismissed him from the force.

       “A   right     is    clearly    established     if    the     contours     of    the

right are sufficiently clear so that a reasonable officer would

have understood . . . that his behavior violated the right.”

Campbell v. Galloway, 483 F.3d 258, 271 (4th Cir. 2007).                                The

law    does    not    expect    the    defendant      “to    sort    out    conflicting

decisions or to resolve subtle or open issues.”                            Id. at 271.

“Officials are not liable for bad guesses in gray areas; they

are    liable       for   transgressing      bright    lines.”           Maciariello    v.

Sumner, 973 F.2d 295, 298 (4th Cir. 1992).                          We now turn to a

brief discussion of the law in this area to ascertain whether in

fact     Stickley’s         asserted        right     to     speak       was     “clearly

established.”



                                             6
      While public employees do not lose their right to speech by

virtue of working for a governmental entity, neither are they

free to speak on all variety of matters.                             Instead, the law has

struck a compromise and protects public employee speech only in

certain circumstances.              Whether the First Amendment protects an

employee’s      right      to     speak    must      be     analyzed      under    a        two-part

test.

      First,        the    court    must     determine         whether      the        employee’s

speech is “on a matter of public concern.”                                Connick v. Myers,

461 U.S. 138, 146 (1983).                 Speech which is on a matter of public

concern must relate to some “matter of political, social, or

other concern to the community. . . .”                        Id.     The inquiry centers

on whether “the public or the community is likely to be truly

concerned      with       or    interested       in     the    particular         expression.”

Kirby v. City of Elizabeth City, 388 F.3d 440, 446 (4th Cir.

2004).     Where the employee’s speech is more about a matter of

personal       interest,         however,       the       First     Amendment      offers          no

protection.         Stroman v. Colleton Cnty. Sch. Dist., 981 F.2d 152,

156     (4th    Cir.       1992).          As     the       Stroman       court        explained,

“[p]ersonal          grievances,           complaints             about     conditions             of

employment,         or    expressions       about          other    matters       of    personal

interest       do    not       constitute       speech       about    matters          of    public

concern    that      are       protected    by       the    First     Amendment,            but   are



                                                 7
matters more immediately concerned with the self-interest of the

speaker as employee.”             Id. (citing Connick, 461 U.S. at 147).

       Second,     and   only      if   the    speech       relates          to    a    matter     of

public concern, the court must determine whether the employer

was justified in discharging the employee.                               To do this, the

court must balance the public employee’s interest in speech with

“the    government’s        interest      in        the    effective          and        efficient

fulfillment of its responsibilities to the public.”                                         Connick,

461    U.S.   at    150.        The     employer      need        not    “prove          that     the

employee’s speech actually disrupted efficiency, but only that

an     adverse     effect       was     ‘reasonably             to      be        apprehended.’”

Maciariello,       973     F.2d    at    300       (quoting       Jurgensen            v.    Fairfax

Cnty., 745 F.2d 868, 879 (4th Cir. 1984)). This interest is

viewed as if on a spectrum "from university professors at one

end    to   policemen      at     the   other."           Id.        Police        officers       are

considered to be “at the restricted end of the spectrum because

they are ‘paramilitary’ -- discipline is demanded, and freedom

must be correspondingly denied.”                     Id;        see also Jurgensen, 745

F.2d at 879;         Kelley v. Johnson, 425 U.S. 238 (1976) (police

department’s       interest        in   discipline,             esprit       de        corps,     and

uniformity       were    sufficient       state       interests         to        defeat      a   due

process challenge to hair grooming regulations).                                  “Consequently,

greater latitude is afforded to police department officials in



                                               8
dealing with dissension in their ranks.”                       Maciariello, 973 F.2d

at 300.

       Having     reviewed      the     substantive        law     governing         employee

speech,    we    are   persuaded       that       the   law   in   this    area       is    not

“clearly established” such that a reasonable person would have

known what the law necessarily required in many cases.                               We reach

this conclusion because the language of the Connick test itself

and the nuanced and careful approach the test requires lead to

the    conclusion      that     an     employee’s        right     to    speech       in    any

particular situation will often not be immediately evident.                                 The

first prong of the test requires a determination of whether the

employee’s speech is on a “matter of public concern.”                               This is a

highly fact-intensive inquiry, which may be influenced by any

variety of factors.             Moreover, the line marking when something

becomes    a    matter     of   public    concern        is   blurry,      and      thus    the

boundary       confining    a    public    official’s          behavior        is    hard    to

discern.        The    second     prong    of      the    test     may    be     even      more

problematic because it requires a balancing of the employee’s

and the employer’s competing interests.                       This not only requires

a keen understanding of the respective interests of each party,

but also necessitates a conclusion as to which interests are

more    substantial.            This     conclusion,          in   turn,       becomes       an

inherently subjective task, and it is the subjective nature of

the inquiry – especially when an official must undertake it ex

                                              9
ante    –   that    makes   the   inquiry        problematic    from    a    qualified

immunity     standpoint.          As   we    have    stated     before,      “where   a

sophisticated balancing of interests is required to determine

whether      the     plaintiff’s       constitutional          rights       have   been

violated, ‘only infrequently will it be ‘clearly established’

that a public employee’s speech on a matter of public concern is

constitutionally protected.’”               McVey v. Stacey, 157 F.3d 271,

277 (4th Cir. 1998) (quoting DiMeglio v. Haines, 45 F.3d 790,

806 (4th Cir. 1995).

       Our finding of qualified immunity in this case is not meant

to suggest that an employee can never show that the employer

violated his or her right to speech.                   In a factual situation,

for example, where it is abundantly clear that the employee is

speaking on a matter of public concern and the employer can show

no demonstrable interest in silencing the employee, the Connick

test becomes far less problematic and points the employer in one

distinct direction: to allow the speech.                  This would exemplify

an outlier case, where the employer properly incurs liability

because a reasonable person would have immediately realized that

the employer was violating the employee’s right by silencing the

employee.       It is in such cases, ones in which the violation is

so     clear,      that   qualified     immunity       does     not     protect    the

defendant.         However, such is not the type of factual situation

we are faced with here.            Stickley’s comments touch on issues of

                                            10
both personal and potentially public interest, while the Chief

of Police undeniably had an important interest in maintaining

unity among his officer corps.            As such, the instant case calls

for a subtle and careful analysis under Connick.                            It is the

requirement of this subtle and careful analysis to determine

whether the speech was of private or public concern, and whose

interest     was    paramount,     that       leads      us   to      conclude     that

Stickley’s right to speak was not clearly established, and that

therefore defendants were indeed entitled to qualified immunity.



                             B. Municipal Liability

       A plaintiff suing a municipal entity under 42 U.S.C. § 1983

must show that his or her injury was caused by municipal policy

or custom.       Monell v. New York City Dept. of Soc. Servs., 436

U.S. 658, 694 (1978).            A municipality cannot be held liable

under § 1983 solely because it employed a tortfeasor.                            Id. at

691.     “[M]unicipal        liability    may      be    imposed      for    a   single

decision      by     municipal      policymakers              under         appropriate

circumstances.”       Pembaur v. City of Cincinnati, 475 U.S. 469,

480 (1986).        To hold a municipality liable, the decisionmaker

must   possess     “’final    authority       to   establish       municipal     policy

with respect to the action ordered.’”                   Love-Lane v. Martin, 355

F.3d 766, 782 (4th Cir. 2004) (quoting Pembaur, 475 U.S. at

481)).

                                         11
       Stickley has failed to show that either Sutherly or Fauber

possessed the final authority required to establish municipal

liability.      Defendants bring to the court’s attention the fact

that   the   Town      of   Strasburg    retains        the   final   decisionmaking

authority with respect to the Chief of Police’s actions.                           The

Town Code provides that the Chief of Police “shall always be

subject to the orders and regulations of the town manager, and

under the control of the town manager.”                       Brief for Appellees,

pp. 26-7.     Plaintiff uses language from the SPD manual to argue

that   Sutherly       had   “final    authority     in    all    matters   of   policy

operations and discipline.”                 Brief for Appellees, p. 28.             As

defendants point out, however, the Town Council never ratified

the manual.       Additionally, the fact that Sutherly had Stickley

come   before     a    Board   of     Inquiry      to   decide    the   question    of

Stickley’s alleged insubordination only strengthens defendants’

contention      that    Sutherly      did    not    reserve      to   himself   final

decisionmaking authority with respect to employee discipline and

termination issues.



                                     III. Conclusion

       Accordingly, the district court’s grant of summary judgment

in favor of defendants on the issues of qualified immunity and

municipal liability is

                                                                           AFFIRMED.

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