Newport News Division.
Bobby BLAND, Daniel Ray Carter, Jr., David W. Dixon, Robert W. McCoy, John C. Sandhofer, and Debra H. Woodward, Plaintiffs,
v.
B.J. ROBERTS, individually and in his official capacity as Sheriff of the City of Hampton, Virginia., Defendant.
v.
B.J. ROBERTS, individually and in his official capacity as Sheriff of the City of Hampton, Virginia., Defendant.
Jeff Wayne Rosen, Jeffrey A. Hunn, Pender & Coward PC, Virginia Beach, VA, for Defendant.
MEMORANDUM OPINION & ORDER
RAYMOND A. JACKSON, District Judge.
*1 Before the Court is Defendant B.J. Roberts' Motion for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. On January 23, 2012, this Court issued an Order granting Defendant's Motion for Summary Judgment. In that Order, the Court informed the parties that a Memorandum Opinion and Order detailing its rationale for the ruling would follow. Pursuant to that Order, the Court now issues this Memorandum Opinion and Order. For the reasons stated herein, Defendant's Motion for Summary Judgment is GRANTED.
I. FACTUAL & PROCEDURAL HISTORY
Plaintiffs Bobby Bland, David Dixon, Robert McCoy, John Sandhofer, and Debra Woodward were employed in the Hampton Sheriffs Office (“the Office”). Plaintiffs Bland and Woodward were unsworn, non-uniformed civilian employees within the Office. Compl. ¶¶ 4, 9. Plaintiffs Carter, Dixon, McCoy, and Sandhofer were all sworn, uniformed deputy sheriffs within the Office. Compl. ¶ ¶ 5–8. The Sheriff of the Office, B.J. Roberts (“the Sheriff”), was slated for re-election in November 2009. Compl. ¶ 12. The Plaintiffs claim that during his tenure the Sheriff used his authority to bolster his reelection efforts, including using employees to manage his political activities, using prisoners to set up campaign events and forcing his employees to sell and buy tickets to campaign fundraisers. Compl. ¶ 15. Plaintiffs contend that in late 2009, the Sheriff learned that a number of his employees were actively supporting Jim Adams, one of the Sheriff's opponents in the election. Compl. ¶ 17. Jim Adams was a former Lieutenant Colonel in the Sheriff's department and he knew each of the six Plaintiffs in this action. Compl. ¶ 17.
The Plaintiffs further allege that the Sheriff learned that each of them affirmatively expressed their support for Adams by informing other individuals of their support, attending a cookout which Adams also attended and “liking” Adams' Facebook page. Compl. ¶¶ 18(a)-(d). According to the Plaintiffs, after learning of their support of his opponent, the Sheriff called a meeting in which he informed his employees that they should get on the “long train” with him rather than riding the “short train” with his opponent. Compl. ¶ 22.
The Sheriff won the November 2009 election, and he decided not to retain the six Plaintiffs as well as six other employees. Compl. ¶ 26; see also Decl. Sheriff B.J. Roberts ¶ 10 (“Decl.Roberts”). The Sheriff claims he did not reappoint three civilian employees (including Plaintiffs Bland and Woodward) based on a reduction in the number of sworn deputies which the Compensation Board allocated to him. Decl. Roberts ¶ 11. He contends that he wanted to replace the civilian employees with sworn deputies. Def's. Mem. Supp. Mot. Summ. J. ¶ 16. The Sheriff also declined to retain the remaining four deputy Plaintiffs and five other deputies for unsatisfactory work performance or for his belief that their actions “hindered the harmony and efficiency of the Office.” Id.
*2 On March 4, 2011, the Plaintiffs filed suit in this Court against the Sheriff in his individual and official capacities alleging that he violated their First Amendment rights to freedom of speech and freedom of association when he fired them. On December 9, 2011, Defendant moved for summary judgment based on the following arguments: (1) that the Plaintiffs have not adequately alleged protected speech under the Constitution, (2) that, even if their speech was protected, Plaintiffs have failed to raise a genuine dispute as to a material fact regarding their retaliation claim, (3) that the Plaintiffs also have failed to create a triable issue with respect to their political association claim, (4) that the Sheriff is entitled to qualified immunity in his individual capacity, and (5) that the Sheriff is entitled to sovereign immunity in his official capacity.
***
III. DISCUSSION
A. Freedom of Speech Retaliation Claim
Plaintiffs first allege that the Sheriff failed to reappoint them in retaliation for their exercise of their right to freedom of speech when they choose to support the Sheriff's opponent in the election. Compl. ¶ 32. In order to prove that an adverse employment action violated their First Amendment right to freedom of speech, the Plaintiffs must satisfy the three-prong test the United States Court of Appeals for the Fourth Circuit (“the Fourth Circuit”) laid out in McVey v. Stacy, 157 F.3d 271 (4th Cir.1998):
*3 Thus, to determine whether a public employee has stated a claim under the First Amendment for retaliatory discharge, we must determine (1) whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a personal matter of personal interest; (2) whether the employee's interest in speaking upon the matter of public concern outweighed the government's interest in providing effective and efficient services to the public; and (3) whether the employee's speech was a substantial factor in the employee's termination decision.
Id. at 277–78.
The first prong of the McVey test necessarily requires that speech exists before an evaluation of the remaining prongs can occur. Plaintiffs Carter, McCoy, and Woodward have not sufficiently alleged that they engaged in expressive speech, and Plaintiff Dixon has not proven that his alleged speech touched upon a matter of public concern. Therefore, these Plaintiffs' claims fail as a matter of law.
a. Daniel Ray Carter, Jr. & Robert McCoy
Carter and McCoy each allege that they engaged in constitutionally protected speech when they “made statements” on Adams' Facebook page. Pls.' Mem. Opp'n Summ. J. at 9. McCoy's Facebook activity is more nebulous than Carter's. McCoy claims that he posted a message on Adams' Facebook page which he later took down. Decl. Robert W. McCoy ¶ 10 (Dec. 21, 2011). The Court, however, is unaware of the content of this message. McCoy's barebones assertion that he made some statement at some time is insufficient evidence for the Court to adequately evaluate his claim. Without more, the Court will not speculate as to what McCoy's actual statement might have been. McCoy has not sufficiently alleged any constitutionally protected speech.
Carter alleged that he sent a statement of support and attached the statement as an exhibit to his declaration in this case. Decl. Daniel R. Carter, Jr. ¶ 11 (Dec. 22, 2011). However, after reviewing the record, the Court has not found any evidence of the “statement of support” Carter allegedly made. In fact, the only evidence regarding Carter's activity on Adams' Facebook page is that he “liked” Adams' page.
It is clear, based on the Sheriffs own admissions, that at some point he became aware of McCoy and Carter's presence on Adams' Facebook page. B.J. Roberts Dep. at 104:4–8; 105:16–20 (Oct. 4, 2011) (“Roberts Dep.”). However, the Sheriff's knowledge of the posts only becomes relevant if the Court finds the activity of liking a Facebook page to be constitutionally protected. It is the Court's conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record. For example, in Mattingly v. Milligan, Mattingly posted on her Facebook wall referring directly to the firing of various employees. No. 4:11CV00215, 2011 WL 5184283, at *2–*3 (E.D.Ark. Nov.1, 2011) (“Two minutes after this post, Mattingly posted another comment: ‘I am trying [sic] my heart goes out to the ladies in my office that were told by letter they were no longer needed ... It's sad.’ ”). There, the court held that Mattingly's specific post was an expression of constitutionally protected speech. Id. at *3–*4. Similarly, in Gresham v. City of Atlanta, the plaintiff posted: “Who would like to hear the story of how I arrested a forgery perp at Best Buy online to find out later at the precinct that he was the nephew of an Atlanta Police Investigator ... ?” No. 1:10–CV–1301–RWS–ECS, 2011 WL 4601022, at *2 (N.D.Ga. Aug.29, 2011), report and recommendation adopted in part, rejected in part on other grounds by, No. 1:10–CV–1301 RWS, 2011 WL 4601020 (N.D.Ga. Sep.30, 2011). In Gresham, the district court adopted the Magistrate Judge's recommendation that although the statement was a close question, it constituted enough speech to be considered speaking out as a matter of public concern. See 2011 WL 4601022 at *2.
These illustrative cases differ markedly from the case at hand in one crucial way: Both Gresham and Mattingly involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter's posts from one click of a button on Adams' Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection.
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