Wesley H. Birt v.  Dorchester County

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 WESLEY H. BIRT,
Plaintiff-Appellant,
v. No. 03-1671 
DORCHESTER COUNTY,
Defendant-Appellee. 
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CA-02-776-2-18)
Submitted: January 7, 2004
Decided: February 4, 2004
Before WIDENER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
A. Christopher Potts, HITCHCOCK & POTTS, Charleston, South
Carolina, for Appellant. Charles E. Carpenter, Jr., Georgia Anna
Mitchell, S. Elizabeth Brosnan, RICHARDSON, PLOWDEN, CAR-
PENTER & ROBINSON, P.A., Columbia, South Carolina, for Appel-
lee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Wesley H. Birt appeals the district court’s decision granting sum-
mary judgment in favor of Dorchester County in his action brought
pursuant to 42 U.S.C. § 1983 (2000). The district court concluded that
Birt’s speech that is the subject of this litigation was not constitution-
ally protected because it did not address a matter of public concern.
We affirm.
We review a district court’s order granting summary judgment de
novo. Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162,
1167 (4th Cir. 1988). Summary judgment is appropriate when no gen-
uine issue of material fact exists and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The evidence is viewed in the
light most favorable to the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment will be
granted unless a reasonable jury could return a verdict for the non-
moving party on the evidence presented. Anderson, 477 U.S. at 247-
48.
Citizens do not relinquish all of their First Amendment rights by
virtue of accepting public employment. See Connick v. Myers, 461
U.S. 138, 142 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568
(1968); Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000). "[A]
State may not discharge an employee on a basis that infringes that
employee’s constitutionally protected interest in freedom of speech."
Rankin v. McPherson, 483 U.S. 378, 383 (1987). The determination
of whether a restriction imposed on a public employee’s speech vio-
lates the First Amendment requires a balance between the interests of
the employee, as a citizen, in commenting upon matters of public con-
cern and the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its employees.
Urofsky, 216 F.3d at 406.
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The first inquiry is whether the speech at issue was that of a private
citizen speaking on a matter of public concern. If so, we then consider
whether the employee’s interest in First Amendment expression out-
weighs the public employer’s interest in what the employer has deter-
mined to be the appropriate operation of the workplace. See
Pickering, 391 U.S. at 568. The threshold inquiry therefore is whether
Birt’s speech addressed a matter of public concern. See Urofsky, 216
F.3d at 406. Whether speech is that of a private citizen addressing a
matter of public concern is a question of law for the court that we
review de novo. See Connick, 461 U.S. at 148 n.7; Urofsky, 216 F.3d
at 406.
To determine whether speech involves a matter of public concern,
we examine the content, context, and form of the speech at issue in
light of the entire record. Urofsky, 216 F.3d at 406. Speech involves
a matter of public concern when it involves an issue of social, politi-
cal, or other interest to a community. Id. The place where the speech
occurs is irrelevant: An employee may speak as a citizen on a matter
of public concern at the workplace, and may speak as an employee
away from the workplace. Id.
The Supreme Court has emphasized the unrelatedness of the
speech at issue to the speaker’s employment duties. See Pickering,
391 U.S. at 574 (explaining that when "the fact of employment is only
tangentially and insubstantially involved in the subject matter of the
public communication made by [the employee], . . . it is necessary to
regard the [employee] as the member of the general public he seeks
to be"). Thus, critical to a determination of whether employee speech
is entitled to First Amendment protection is whether the speech is
made primarily in the employee’s role as citizen or primarily in his
role as employee. Urofsky, 216 F.3d at 406. The focus on the capacity
of the speaker recognizes the basic truth that speech by public
employees undertaken in the course of their job duties will frequently
involve matters of vital concern to the public, without giving those
employees a First Amendment right to dictate to the state how they
will do their jobs. Id.
We conclude that Birt’s private, internal memorandum summariz-
ing a councilman’s request that a particular zoning investigation be
halted did not address a matter of public concern because it was
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directly related to Birt’s duties as Zoning Administrator, did not assert
any impropriety by the councilman, and was directed only to those
employees who needed to be notified to cease their investigation.
Accordingly, we affirm the decision of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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