Wood points primarily to this lack of public confidence in Harris and White to justify his decision not to rehire them. Wood also points to the fact that neither Harris nor White satisfied his revised sheriff's regulations, which required, among other things, that a deputy have 20/40 binocular vision and that deputies live in Nelson County. Harris had only one eye and White lived outside Nelson County. It has not been established that Wood adopted the regulations to serve solely as a justification for not rehiring the Plaintiffs, since Deputy Graves consulted with state police requirements and the common practice of other sheriff's offices, and Wood consulted with a local optometrist for advice to develop the vision requirements. It is unclear from the record, however, to what extent Wood based his decision not to rehire the Plaintiffs on the revised regulations. Graves mentioned the residency requirement (which ultimately was applied only to road deputes) to White as one reason Wood refused to rehire him, along with the statements made during the campaign. (Graves Tr. 307.) Graves did not mention the vision requirement to Harris, only that Harris's general background and reputation rendered him unsuitable for the job. (Graves Tr. 361, D.'s Ex. 4.)
After reviewing the evidence regarding the general nature of the Plaintiffs' reputations in the community, along with the various real and perceived problems with their performance, the court must determine whether these factors explain Defendant Wood's decision not to rehire them. The court will outline the first amendment retaliation analysis to be applied to these facts and then explain how the evidence supports the Defendant's claim that he based his decision not to rehire the Plaintiffs on legitimate non-discriminatory reasons.
II. Conclusions of Law
Though, under Virginia law, a sheriff's deputies serve at the will of the sheriff, Va. Code Ann. § 15.1-48, and have no property interest in continued employment, Jenkins v. Weatherholtz, 719 F. Supp. 468 (W.D. Va. 1989), a sheriff may not refuse to hire an individual in retaliation for constitutionally protected political expression. The standard to be applied in a first amendment retaliation case is set forth in Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1985). The court must look at all the facts and circumstances of a case to determine whether speech is of a matter of public concern and, if it is, whether the employee's first amendment interest outweighs the employer's interest in an efficient and harmonious workplace. Id. at 146.
As the Supreme Court stated in Connick, "when employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable." Id. Even if employee speech is protected, "when close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employers judgment is appropriate." Id. at 151. It is not necessary for the employer "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." Id. at 152. If an employee's speech activity occurs at the office, rather than outside the office to the public at large, such circumstances may support an employer's defense that the functioning of the office was endangered by the employee's conduct, and that the employer's interests outweigh the employee's first amendment interests. Id. at 153. Such a balance, however, can only be determined by comparing the nature and importance of the protected speech to the nature and importance of the employer's asserted interests. Id.
The employer may escape liability even if the employer fires an employee partly for engaging in speech that is protected under Connick, by proving that the discharge would have been made in any event for reasons unrelated to any exercise of protected first amendment rights. Jones v. Dodson, 727 F.2d 1329, 1335 (4th Cir. 1984) (citing Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977). The burden to prove this avoidance defense is upon the public employer. Id. at 287.
In first amendment retaliation cases, where motive is central to the court's inquiry, the court must often look to circumstantial evidence since direct evidence of motive rarely exists. As Judge Phillips explained in his concurrence in Collinson v. Gott, 895 F.2d 994 (4th Cir. 1990), several factors are relevant to this inquiry: whether there are "any internal inconsistencies" in the defendant's story; "extrinsic circumstances" surrounding the challenged action, such as a defendant's treatment of a similarly situated employee, that would support allegations of improper motive; or the existence of non-discriminatory reasons for a challenged action. Id. at 1002-03. Though Judge Phillips outlined these relevant factors in the course of describing the qualified immunity inquiry under the first amendment, they are equally applicable to the test on the merits.
The only direct evidence of illicit motive in this case is Wood's statement that he objected to some of the things White said during the campaign. At trial Wood reaffirmed the fact that he refused to rehire White partly for statements made during the campaign, and Graves told White that Wood refused to rehire him partly for the campaign-related statements. It is unclear, however, whether Wood primarily objected to the public statements by White that Wood refused to back him up, or the personal attacks made by White at the sheriff's station, where he called Wood a "bald-headed s.o.b." and a "chicken-shit." As far as Harris is concerned, there is no direct statement from Wood that he refused to rehire Harris for political reasons. Graves told Harris that Wood refused to rehire Harris due to his general background and reputation.
With this evidence in mind, the court turns to the factors mentioned by Judge Phillips in Gott. First, the Plaintiffs have emphasized at trial and in their proposed findings of fact that, despite all of the rumors and negative opinions about White and Harris, Wood has stated that he did not speak to anyone in the community to check out the stories. Therefore, they argue that Wood's reliance on these rumors to justify his decision not to rehire the Plaintiffs shows that the rumor justification is a pretext and that his story is inconsistent. The court cannot agree. The record reveals that Wood was thoroughly familiar with the reputation of White and Harris in the community. Through Wood's deposition and testimony, and the testimony of his closest ally after the election, Deputy Graves, it appears that the negative rumors entered into Wood's decisionmaking process.
Second, the fact that Wood rehired all of the other deputies, many of whom actively supported Sheriff Harris, supports the conclusion that his actions were not politically motivated. While it is true that White and Harris were the most vocal supporters of Sheriff Harris, and Wood refused to rehire them both, other deputies supported Harris, Leo Pugh ran against Sheriff Wood as an independent, and Gary Brantley wrote an editorial in the paper supporting Sheriff Harris. Wood rehired all of these deputies.
The third factor mentioned by Judge Phillips is whether legitimate reasons justify an employer's allegedly retaliatory action. Numerous reasons have been tendered by the Defendant, and are supported by the evidence at trial, including the fact that nepotism was a major concern in the community when Sheriff Harris hired Michael Harris, Michael Harris had a tainted reputation in the community, and Wood was aware of complaints about White's attitude and driving habits. Moreover, Wood had a legitimate interest in protecting the harmony of his new sheriff's department. Wood was entitled to take into consideration whether Harris's close association with his father would undermine Harris's loyalty. Wood was also entitled to consider whether he could work closely with White, who had called him epithets in the presence of other deputies at the sheriff's office. Other deputies, including Deputy Martin in particular, did not believe Wood could expect loyalty out of either of the Plaintiffs. The need for harmony in the workplace is substantially heightened in public safety positions. Dunn v. Carroll, 40 F.3d 287 (8th Cir. 1994). The court accordingly gives strong weight to the concerns about Harris and White brought out at trial, particularly in light of the fact that Wood must post a bond upon assuming office and is personally liable under Virginia law for the acts of his deputies, the safety of his deputies, and the safety of the general public. See Va. Code Ann. § 15.1-41 et seq.; see also Whited v. Fields, 581 F. Supp. 1444 (W.D. Va. 1984) (sheriff in Virginia may be fined for the acts and omissions of his deputies under principles of respondeat superior).
At most, the Plaintiffs have shown that Wood may have refused to rehire White partly because of White's statements in public that Wood did not provide adequate back-up when on call. The evidence supports the fact, however, that Wood refused to rehire White at least in part for legitimate non-discriminatory reasons. Though the court places some weight on White's driving record, the most important fact brought out at trial is that some citizens did not like his demeanor and others in the police department, including Wood, found him to be moody and unpleasant. A sheriff should hardly be expected to rehire a deputy who has repeatedly called him derogatory names in the presence of the sheriff's former colleagues and future subordinates. Connick does not require such tolerance where the employee's speech is in the form of a personal attack, with no apparent expressive content beyond personal antipathy.
There is no evidence that Wood refused to rehire Harris due to Harris's political conduct. The overwhelming weight of the evidence supports Wood's contention that nepotism was a major factor in Sheriff Harris's defeat and that the community disapproved of Harris being hired as a deputy. Wood, acting with the advice of Deputy Graves, decided not to rehire Harris at least in part because of the negative opinions about him in the community. As Graves testified, Wood and Graves "just didn't want [Harris] working with a newly formed organization with the cloud of mistrust through the community, for lack of a better word." (Graves Tr. 297.) The fact that many of the rumors are untrue may be unfair to Harris, but a newly elected sheriff is entitled to listen to the voice of the community in which he serves.
For the foregoing reasons, the court will enter judgment in favor of the Defendant. An appropriate Order will this day issue.
James H. Michael, Jr.
12 May 1995
JUDGE JAMES H. MICHAEL, JR.
For the reasons stated in the accompanying Findings of Fact and Conclusions of Law it is hereby
ADJUDGED AND ORDERED
that judgment in this case shall be, and it hereby is, entered in favor of the Defendant. This case shall be, and it hereby is, dismissed and stricken from the docket of this court.
James H. Michael, Jr.
12 May 1995
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