UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KIMBERLY F. GODON,
Plaintiff-Appellant,

v.

NORTH CAROLINA CRIME CONTROL &
PUBLIC SAFETY; NORTH CAROLINA
TARHEEL CHALLENGE ACADEMY;
KENNETH STALLS, in his individual
                                                                      No. 97-1458
and official capacities; DALE
AUTREY, in his individual and
official capacities; LESLIE T.
EVERETT, in his individual and
official capacities; STATE OF NORTH
CAROLINA,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CA-96-804-5-BO)

Argued: March 4, 1998

Decided: April 23, 1998

Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and
CLARKE, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Marvin Schiller, Raleigh, North Carolina, for Appellant.
Isaac T. Avery, III, Special Deputy Attorney General, NORTH CAR-
OLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees. ON BRIEF: Reuben F. Young, Assistant Attorney Gen-
eral, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Kimberly F. Godon sued the Tarheel Challenge Academy and other
defendants alleging that her discharge from the Academy violated her
constitutional rights, Title VII, and North Carolina law. The district
court dismissed Godon's federal claims, declined to exercise jurisdic-
tion over her state claims, and denied Godon leave to amend her com-
plaint. We affirm in part, reverse in part, and remand the case to the
district court.

I.

Godon appeals a decision granting defendants' motion to dismiss,
so we accept as true the facts alleged in the complaint. McNair v.
Lend Lease Trucks, Inc., 95 F.3d 325, 327 (4th Cir. 1996) (en banc).
The Tarheel Challenge Academy, a division of the North Carolina
Department of Crime Control and Public Safety, provides teaching
and training in a boot camp environment to former high school drop-
outs, known as cadets. Cadets, whose ages range between sixteen and
nineteen, attend the Academy in order to receive a general equiva-
lency diploma. As a team leader employed by the Academy, Godon
supervised the training of the cadets.

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In April 1995, Godon complained to Kenneth Stalls, Assistant
Director of the Academy, and Dale Autrey, Assistant Commandant,
about their discriminatory treatment of black and female cadets.
Godon protested that Stalls and Autrey were terminating black and
female cadets without cause while permitting white male cadets to
remain at the Academy even when they had committed offenses war-
ranting termination. Godon was fired from the Academy on approxi-
mately May 17, 1995.

Godon filed suit against Stalls, Autrey, Leslie Everett (Director of
the Academy), the Academy, the Department of Crime Control and
Public Safety, and the State of North Carolina. Godon claimed that
she was discharged in retaliation for her complaints in violation of the
United States Constitution, Title VII, and North Carolina law. She
sought compensatory and punitive damages, reinstatement to her for-
mer position, and other relief. The district court dismissed Godon's
federal claims, declined to exercise supplemental jurisdiction over her
state claims, and denied Godon's motion for leave to amend her com-
plaint. Godon now appeals the dismissal of her federal claims and the
denial of leave to amend her complaint.

II.

We first turn to Godon's claim that her discharge violated her First
Amendment rights. The district court held that Godon's complaint
failed to state a claim because her speech did not address a matter of
public concern but merely expressed her personal dissatisfaction with
defendants' disciplinary practices. We conclude that the complaint,
though vague, states a claim under the First Amendment; we must
therefore reverse the district court's dismissal of this claim.

To state a claim for retaliatory discharge under the First Amend-
ment, a plaintiff must satisfy a three-part test. First, the employee
must be speaking "as a citizen upon matters of public concern" and
not "as an employee upon matters only of personal interest." Connick
v. Myers, 461 U.S. 138, 147 (1983); accord DiMeglio v. Haines, 45
F.3d 790, 805 (4th Cir. 1995). Second, the employee's interest in
speaking upon the matter must outweigh "the government's interest
in the effective and efficient fulfillment of its responsibilities to the
public." Connick, 461 U.S. at 150; accord Stroman v. Colleton

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County Sch. Dist., 981 F.2d 152, 156 (4th Cir. 1993). Finally, the
employee's speech must have been a substantial factor in the employ-
er's termination decision. Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977); Hanton v. Gilbert, 36 F.3d 4, 7 (4th
Cir. 1994).

Both the Supreme Court and this circuit have observed that an
employee's complaints of discrimination can be speech on a matter
of public concern. See Connick, 461 U.S. at 146; Cromer v. Brown,
88 F.3d 1315, 1326 (4th Cir. 1996). Godon's complaint alleges that
she spoke with both Stalls and Autrey "about their discriminatory
treatment of female and black cadets" at the Academy. Compl. ¶ 14.
Specifically, she protested that they were "discriminatorily and dis-
proportionately terminating female and black cadets without cause
while permitting white male cadets to remain enrolled in the program
even when they committed infractions sufficiently severe for them to
be terminated from the program." Id.

The district court looked beyond the content of Godon's criticisms
and found that they did not address a matter of public concern
because of the form and context in which Godon made them. We
agree that, in addition to content, the form and context of an employ-
ee's speech are important factors in determining whether it is entitled
to First Amendment protection. Connick, 461 U.S. at 147-48; Hall v.
Marion Sch. Dist. No. 2, 31 F.3d 183, 192 (4th Cir. 1994). However,
those factors are of limited utility at this stage because Godon's com-
plaint offers only scant details about the form and context of her criti-
cisms. The complaint merely alleges that Godon raised her concerns
with Stalls and Autrey. That Godon chose to raise them with her
employer rather than the public does not automatically deprive her
speech of all constitutional protection. Givhan v. Western Line Con-
sol. Sch. Dist., 439 U.S. 410, 415-16 (1979). Thus, we cannot con-
clude that Godon's complaints of discrimination, though raised
internally, could never address a matter of public concern.

Defendants contend that, even if Godon's speech may have
addressed a matter of public concern, it is apparent from the com-
plaint that their interest in the effective provision of services at the
Academy outweighs Godon's interest in speaking. Specifically, they
claim that Godon's criticisms threatened to disrupt the Academy's

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boot camp environment that depended on a high degree of discipline
and the absence of dissent.

Defendants' argument may ultimately prove persuasive, but it can-
not prevail at this very early stage. "A government employer, no less
than a private employer, is entitled to insist upon obedience to the
legitimate, day-to-day decisions of the office without fear of reprisal
in the form of lawsuits from disgruntled subordinates who believe that
they know better than their supervisors how to manage office affairs."
DiMeglio, 45 F.3d at 806. And the employer does not have "to allow
events to unfold to the extent that the disruption of the office and the
destruction of working relationships is manifest before taking action."
Connick, 461 U.S. at 152 (footnote omitted). The complaint, however,
does not reveal the manner, time, place or context in which the pres-
ent disagreement arose. See id. at 153 (finding the manner, time,
place, and context of the statements relevant to the balancing test). As
a result, we cannot yet ascertain whether and to what extent Godon's
protests were actually or potentially disruptive of the Academy's
mission.1

Finally, Godon's complaint sufficiently alleges that her speech was
a substantial factor in her discharge. The complaint avers that the rea-
sons given in Godon's discharge letter "were false and a pretext for
Defendants' retaliation for Plaintiff's aforesaid statements." Compl.
¶ 15. It further maintains that Godon "was discharged from her
employment . . . as a consequence of the exercise of her freedom of
speech under the 1st and 14th Amendments to the United States Con-
_________________________________________________________________

1 For similar reasons, at this stage we also cannot entertain the individ-
ual defendants' claims of qualified immunity. Defendants contend, and
we agree, that qualified immunity often will shield parties from liability
for First Amendment retaliation claims "because the relevant inquiry
requires a `particularized balancing' that is subtle, difficult to apply, and
not yet well-defined." DiMeglio, 45 F.3d at 806 (citations omitted);
accord Cromer, 88 F.3d at 1330 n.11. Absent a more complete record,
however, we cannot apply that balancing test and determine whether a
reasonable official would have known that firing Godon violated a
clearly established constitutional right. Once that record is developed, the
district court may determine the immunity question.

                     5
stitution." Id. ¶ 18. In sum, Godon's complaint states a claim of retali-
ation in violation of her First Amendment rights. 2

In holding only that Godon's complaint survives a motion to dis-
miss under Rule 12(b)(6), we offer no opinion on whether the claim
will ultimately prove to be meritorious or on whether it should pro-
ceed to trial. On remand and after discovery, the district court must
determine whether issues of triable fact exist on the elements of plain-
tiff's claim.

III.

We next consider Godon's Title VII claims. Godon contends that
her complaint states claims of retaliatory discharge and sex discrimi-
nation in violation of Title VII. The district court held that no factual
allegations in the complaint supported these claims. We agree that
Godon's complaint fails to state a violation of Title VII and therefore
affirm the district court's dismissal of these claims.

We first turn to Godon's retaliation claim. In relevant part, Title
VII prohibits employers from discriminating against employees
because they have "opposed any practice made an unlawful employ-
ment practice." 42 U.S.C. § 2000e-3(a). To state a prima facie case
of retaliation, an employee must show that (1) she engaged in pro-
tected activity; (2) the employer took an adverse employment action
against her; and (3) a causal connection exists between the protected
activity and the adverse action. Hopkins v. Baltimore Gas & Elec.
Co., 77 F.3d 745, 754 (4th Cir. 1996); McNairn v. Sullivan, 929 F.2d
974, 980 (4th Cir. 1991). Godon's complaint, however, nowhere
alleges that she opposed an employment practice at the Academy.
_________________________________________________________________
2 In the district court Godon sought to amend her complaint primarily
to add allegations about Everett's involvement in her discharge. The dis-
trict court denied her leave to amend her complaint on the ground that
amendment would be futile and would not affect the court's legal analy-
sis. We generally defer to district court decisions about whether leave to
amend should be granted. National Bank of Wash. v. Pearson, 863 F.2d
322, 327 (4th Cir. 1988). In light of our disposition of Godon's First
Amendment claim, we believe the district court should reconsider
whether to allow Godon to amend her complaint.

                     6
Rather, it states merely that she disagreed with certain disciplinary
practices, namely the expulsion of cadets. Godon's protests, therefore,
do not constitute a protected activity within the meaning of Title VII.
Her complaint thus fails to state a Title VII retaliation claim.

Nor does her complaint state a claim of sex discrimination. To do
so, an employee must show that the employer discriminated with
respect to the "compensation, terms, conditions, or privileges of
employment, because of such individual's . . . sex." 42 U.S.C.
§ 2000e-2(a)(1). Godon's complaint does not aver that anyone at the
Academy discriminated against Godon, nor does it mention any facts
that might give rise to any inference of discrimination. See Karpel v.
Inova Health Sys. Servs., 134 F.3d 1222, 1227-28 (4th Cir. 1998).
Moreover the allegations supporting Godon's free speech claim --
that she was discharged because of her complaints -- undercut any
argument that she was discharged because of her sex. In sum,
Godon's complaint does not support -- and indeed undermines -- her
claim that her employer discriminated against her because of her sex.
Accordingly, the district court properly dismissed this claim.

IV.

In summary, we reverse the district court's dismissal of Godon's
First Amendment claim. We affirm its dismissal of the Title VII
claims. The case is remanded for further proceedings consistent with
this opinion.

AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED

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