UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM BISHOP,
Plaintiff-Appellant,

v.

CITY OF SUFFOLK; RICHARD HEDRICK,
Individually and as City Manager of
the City of Suffolk; LEON JOHNSON,
Individually and as Assistant City
Manager of the City of Suffolk;
THOMAS HINES, Individually and as
                                                                    No. 95-2000
Director of Public Works for the
City of Suffolk; DONALD LONG,
Individually and as Assistant
Director of Public Works for the
City of Suffolk,
Defendants-Appellees,

and

ROGER LEONARD; JAMES BEAUCHAMP,
Defendants.

Appeal from the United States District Court
from the Eastern District of Virginia, at Norfolk.
Richard B. Kellam, Senior District Judge.
(CA-94-1027-2)

Argued: March 5, 1996

Decided: May 29, 1996

Before MURNAGHAN and MOTZ, Circuit Judges, and YOUNG,
Senior United States District Judge for the District of Maryland,
sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Jeffrey Kyle Yeats, FORBES & BROADWELL, Hamp-
ton, Virginia, for Appellant. Wendell Myron Waller, OFFICE OF
THE CITY ATTORNEY, Suffolk, Virginia, for Appellees. ON
BRIEF: C. Edward Roettger, Jr., Kay W. Rudiger, OFFICE OF THE
CITY ATTORNEY, Suffolk, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

The former manager of the Suffolk City Airport brought this action
under 42 U.S.C. § 1983 against the City of Suffolk and several indi-
viduals, alleging that he was discharged for exercising protected
speech and that he was denied access to the city's grievance proce-
dure. The District Court granted summary judgment for the Defen-
dants on the federal claims. Finding the discharge was not municipal
policy and did not violate clearly established rights, we affirm.

I.

William Bishop was hired as Airport Manager for the City of Suf-
folk Municipal Airport in 1986. As part of his job he was responsible
for ensuring the airport was in compliance with applicable safety reg-
ulations. On several occasions he confronted James Beauchamp and
Roger Leonard, two of the five tenants at the airport, about alleged
violations of federal and state laws including their conduct in painting
and stripping paint.

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Fire Marshall H.R. Parker inspected the airport several times in
response to Bishop's complaints. In September 1991 he observed lim-
ited spray painting inside certain aircraft hangers and the absence of
drip pans, both of which violated the fire code. A follow up inspection
in June 1992 resulted in a memorandum detailing corrective action,
but a third inspection did not reveal any violations. During one of the
follow up inspections, Bishop also complained about a parachute
class conducted in a hangar, but Parker concluded that the class did
not present a safety concern. Parker never observed cars being painted
or paint being stripped.

Building Official Wayne Whitehurst also inspected the hangars in
response to Bishop's complaints. Although he found some evidence
of spray painting inside the hangars, he considered the violations
minor and issued verbal warnings.

On several occasions Bishop was reproached by his supervisors for
his poor relationship with tenants. In a 1988 performance evaluation,
Thomas G. Hines, the Director of Aviation Facilities, expressed con-
cerns about Bishop's interaction with customers and tenants. In 1991
Hines wrote to Bishop about his inequitable handling of tenants, and
in 1992 Hines placed Bishop on a 90-day probationary period for the
same reason. Bishop was later suspended for three days without pay
because he had discussed confidential city business with an outside
agency, and the probationary period was extended an additional 60
days. Hines had to placate tenants when Bishop improperly attempted
to charge for hangar space and refused to allow flammable materials
in a properly marked area. One tenant threatened to terminate its lease
because of Bishop's treatment. In a 1992 performance evaluation,
then Assistant Director for Public Works Donald Long also stated that
Bishop needed to improve his relations with tenants. Although Long
noted improvement in the 1993 evaluation, a 1994 interim evaluation
again commented that Bishop should improve his relationship with
tenants and customers.

On February 28, 1994, Hines and Ladonna Wade, the Personnel
Director, informed Bishop that he was to be discharged. One of the
reasons cited for the discharge was the inequitable handling of airport
tenants and customers. At that time Bishop alleges he asked whether
the decision could be submitted to the city administrative grievance

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process. Although Hines initially responded that the discharge was
subject to the grievance procedure, Wade opined that it was not.

Bishop then filed suit against the City of Suffolk, City Manager
Richard Hedrick, Assistant City Manager Leon Johnson, Long and
Hines seeking damages under 42 U.S.C. § 1983 for discharge in retal-
iation of exercising his First Amendment right to free speech and for
denying his due process right to participate in the administrative
grievance procedure. He also asserted a state law claim against
Beauchamp and Leonard. The district court granted summary judg-
ment for Defendants on the constitutional claims and dismissed the
state claims without prejudice. Bishop appeals the entry of summary
judgment.

II.

We review the grant of summary judgment de novo , applying the
same standards as the district court. Temkin v. Frederick County
Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S.
1095 (1992). A moving party is entitled to summary judgment "if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law." Fed. R. Civ. P. 56(c).

A.

To hold a municipality liable under 42 U.S.C. § 1983, it must be
shown that the alleged injury stems from a policy, custom, or usage.
Monell v. Dep't of Social Services of City of New York, 436 U.S. 658,
694 (1978). Whether a particular decision can be fairly deemed
municipal policy turns on whether the person making the decision has
authority to make policy, a determination made by reference to state
law. See St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988). In this
case the relevant law, passed by the City of Suffolk under authority
delegated from the state, provides that the City Council or the City
Manager establish the personnel policy for the airport. See Va. Code
Ann. § 15.1-885; Suffolk City Code §§ 2-65(a), 2-65(c), 19-4. Hines,
as Director of Aviation Facilities, had no authority to make employ-
ment policy and his actions cannot be attributed to the City of Suf-

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folk. Therefore, summary judgment was properly granted to the City
of Suffolk.

B.

To hold public officials liable under 42 U.S.C.§ 1983, it must be
established that the alleged improper conduct violated clearly estab-
lished federal rights which a reasonable person would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The threshold
inquiry is whether, at the time the conduct occurred, the law was
clearly established at a level of application to the specific conduct
being challenged. DiMeglio v. Haines, 45 F.3d 790, 797, 803 (4th Cir.
1995).

The First Amendment protects the right of public employees to
speak about matters of public concern.* Connick v. Myers, 461 U.S.
138, 146 (1983). If the speech falls into this category, then a balance
is struck between the employee's interest in expression and "the gov-
ernment's interest in the effective and efficient fulfillment of its
responsibilities to the public." Id. at 150.
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*It is important to correct the parties' construction of the first prong
of this test. Much discussion was directed to whether Bishop reported the
violations in his capacity as a public official or as a private citizen, rely-
ing on certain dicta in Connick and an alternative holding in DiMeglio.
The likely source of confusion is the particular factual context of
Connick, where the employee's exercise of speech related to a non-
public matter concerning the internal function of assigning tasks in a dis-
trict attorney's office and was made as a public official. That the court
noted her speech was not made in her capacity as a"citizen" was short-
hand for finding the subject matter of speech was public. A critical read-
ing of Connick and the other progeny of Pickering reveals that the focus
of the court has always been on whether the employee was speaking on
a private matter or a public matter. See, e.g., Pickering v. Board of
Education, 391 U.S. 563, 573-74 (1968); Perry v. Sindermann, 408 U.S.
593, 598 (1972); Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 284 (1977); Rankin v. McPherson , 483 U.S. 378, 384
(1987); Waters v. Churchill, ___ U.S. ___, 114 S.Ct. 1878, 1884 (1994).
See also Dwyer v. Smith, 867 F.2d 184, 193 (4th Cir. 1989); Piver v.
Pender County Bd. of Educ., 835 F.2d 1076, 1078 (4th Cir. 1987), cert.
denied, 487 U.S. 1206 (1988); Daniels v. Quinn, 801 F.2d 687, 689 (4th
Cir. 1986).

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Bishop's reports concerning tenants' compliance with various state
and federal laws are unlike the purely personal interests that the
Connick line of cases leaves unprotected. See Piver v. Pender County
Bd. of Educ., 835 F.2d 1076, 1078-1080 (4th Cir. 1987), cert. denied,
487 U.S. 1206 (1988) (elaborating test for matters of public concern).
At the time of discharge, Hines reasonably should have known that
Bishop's expression concerned a public matter within First Amend-
ment protection.

However, Bishop's interest in speaking on this public matter would
have been weighed against Suffolk's interest in building and main-
taining good relations with the tenants of the airport, protecting the
revenues from leasing space, promoting harmony and cohesiveness
within the airport management team. Admittedly, Bishop's interest,
and indeed duty, in reporting violations of the law is stronger than the
interest of the public official in DiMeglio, supra, who gave unsolic-
ited legal advice to a citizens' group. But the record shows that the
reported violations were investigated and found to be nonexistent or
minor, requiring only verbal warnings, and after a series of similar
reports Hines had concluded that Bishop was needlessly disrupting
relations with the tenants. He attempted to focus Bishop on nonfrivo-
lous violations of the law, but there is no indication he ordered Bishop
to ignore all violations. Cf. Roper v. County of Chesterfield, Virginia,
807 F. Supp. 1221 (E.D. Va. 1992) (supervisor told building inspector
to pass all the work done by certain contractors regardless of its qual-
ity). Hines' judgment that Bishop was needlessly disrupting relations
with tenants and the operations of the airport is the kind of discretion-
ary act for which public officials should not be liable, and was reason-
able under the law then in effect. Accordingly, the individual
Defendants were entitled to qualified immunity and summary judg-
ment was proper.

C.

Bishop's due process claim is based on Hines' adoption of Wade's
statement that the discharge was not subject to the grievance proce-
dure. Although Bishop never attempted to avail himself of the avail-
able administrative grievance procedure for City of Suffolk
employees, which is set forth in written form and is available to the
public, he claims it would have been futile to submit a grievance to

                    6
Hines because Hines had "ruled" the procedure was not available. We
do not find that Bishop's access to the administrative grievance proce-
dure was denied or that he has shown that efforts would have been
futile, and agree with the district court that there is no merit to this
claim.

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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