UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-1854

MICHAEL BILLIONI,

Plaintiff - Appellee,

v.

SHERIFF BRUCE BRYANT, individually and in his official capacity as York County Sheriff,

Defendant - Appellant,

and

YORK COUNTY; YORK COUNTY DETENTION CENTER; YORK COUNTY SHERIFFS OFFICE,

Defendants,

WCNC-TV INC,

Respondent,

CONNIE MCMILLAN; CHRISTOPHER PENLAND; JAMES MOORE; LINDSAY HENSON; CAROL SUTTON; FRANCINE WEYERS; JAMES BRACKETT,

Intervenors.

Appeal from the United States District Court for the District of South Carolina, at Rock Hill. J. Michelle Childs, District Judge. (0:14-cv-03060-JMC) Argued: September 27, 2018 Decided: January 2, 2019

Before AGEE and FLOYD, Circuit Judges, and John A. GIBNEY, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.

Remanded by unpublished per curiam opinion.

ARGUED: Christopher Wofford Johnson, GIGNILLIAT, SAVITZ & BETTIS, Columbia, South Carolina, for Appellant. Shon Hopwood, GEORGETOWN LAW APPELLATE COURTS IMMERSION CLINIC, Washington, D.C., for Appellee. ON BRIEF: Jennifer Munter Stark, JENNIFER MUNTER STARK LAW OFFICE, Mt. Pleasant, South Carolina; Marybeth Mullaney, MULLANEY LAW FIRM, Mt. Pleasant, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Correctional officers at York County Detention Center (YCDC) strapped Joshua

Grose into a restraint chair and watched as he was beaten by an officer with a history of

prisoner abuse. Grose died the next day. Michael Billioni, a supervisor at YCDC, saw

surveillance video of the beating. He told his wife, who worked at a local news station.

When news of the video broke, YCDC conducted an internal investigation into who had

leaked it. Billioni confessed, and YCDC fired him. Billioni then sued Bruce Bryant, the

York County Sheriff, alleging that Bryant had fired him in retaliation for speech

protected by the First Amendment. Sheriff Bryant moved for summary judgment,

arguing that he was entitled to qualified immunity. The district court denied his motion,

and Sheriff Bryant appealed. 1

We now hold that under Johnson v. Jones,

(1995), and Winfield v.

Bass,

(4th Cir. 1997) (en banc), this Court has jurisdiction over Sheriff

Bryant’s claim that there was no violation of “clearly established” law. But we remand to

the district court to use the correct legal standard to determine whether Billioni’s speech

was protected under the First Amendment and thus do not reach Sheriff Bryant’s

qualified immunity argument.

1 “Given that this appeal arises from the district court’s denial of summary judgment, we review each issue de novo, viewing all facts and reasonable inferences therefrom in favor of [Billioni], as the non-moving party.” Cannon v. Village of Bald Head Island,

(4th Cir. 2018).

3 I.

In the early morning hours of October 20, 2013, Grose was strapped to a prisoner

restraint chair that rendered him completely immobile while Officer James Moore

punched him multiple times in the head. After Moore’s brutal assault, other correctional

officers, who had watched the attack, tased Grose in “drive stun” mode and placed his

head into a football helmet strapped to the restraint chair. Grose died a few hours later.

Just months before, Moore had been the target of an internal investigation at YCDC and

ordered by Sheriff Bryant to undergo psychological evaluation for repeatedly striking the

head and neck of another inmate in a restraint chair.

Later that day, Trent Faris, a public information officer for the York County

Sheriff’s Office (YCSO), held a press conference about Grose’s death. He stated that

Grose had been placed in a restraining chair for his own safety because he had been

“very, very combative,” and that Grose died as a result of injuries that he gave himself by

hitting his head on the back of the chair. J.A. 987. Faris said nothing about Moore

punching Grose 12 times in the head. When asked by a reporter whether officers would

face disciplinary action for Grose’s death, Faris answered “[a]ll our officers, detention

officers, did exactly what they were supposed to do last night.” J.A. 991.

At the time of Grose’s death, Billioni was a Master Control Specialist at YCDC, a

position that gave him access to the correctional facility’s video surveillance system.

Billioni heard Faris’s statement while off-duty. At work the next day—October 21,

2013—he decided to watch the surveillance video of the incident. What he saw disturbed

him. Later that day, Billioni told his wife, a research analyst for WCNC, the NBC

4 affiliate in Charlotte, North Carolina, about the existence and contents of the video.

Billioni’s wife contacted Stuart Watson, an investigative reporter at WCNC, about the

contradictions between the video and the YCSO press conference. Watson subsequently

filed a request for the video pursuant to the Freedom of Information Act and contacted

the YCSO’s general counsel about the circumstances surrounding Grose’s death.

On October 22, 2013, Sheriff Bryant held a meeting to determine whether there

was a witness who knew something about Grose’s death that had not been publicly

reported. Sheriff Bryant also called in the State Law Enforcement Division (SLED), the

South Carolina agency that conducts internal investigations for law enforcement

agencies. YCDC administrators James Arwood and Richard Martin began their own

internal investigation by interviewing Billioni, because they knew that his wife worked at

WCNC. During the interview, Billioni admitted to watching the video but lied about

describing it to his wife. The next day, Billioni sent Arwood and Martin an email

admitting that he had told his wife—who had subsequently told WCNC reporters—about

the video.

On October 25, 2013, Billioni gave a statement to SLED agents in which he

admitted leaking the existence and contents of the surveillance video to his wife. Later

that day, Arwood and Martin gave Billioni a choice: either resign or be fired. He chose

the latter.

Per its standard procedure, YCDC provided Billioni with a notice of termination.

The notice stated that Billioni was terminated because of a violation of YCSO Policy

300:16 Code of Ethics, VIII; Employee Rules of Conduct, 16; and VII Confidential

5 Information. The relevant employee rule of conduct states that “[e]mployees are to be

respectful of other employees, employees of other agencies or departments, and the

public. Employees are not to participate in rumors and gossip about other persons, cause

discontent in the department. Problems are to be addressed in the appropriate manner

through the proper chain of command.” J.A. 1037–38. The YCSO Confidentiality

Policy states that “[i]nmate and employee records are considered confidential

information. No employee is to divulge information pertaining to inmates and/or

employees of the Detention Center except for official purposes and then only authorized

persons and agencies with official need to know. All employees will treat all Detention

Center communications and business as confidential.” J.A. 1140. YCDC later entered

substantially the same explanation for Billioni’s termination in NET-101, an online tool

that YCDC used for responding to unemployment claims. There, YCDC stated that

Billioni was terminated for “[u]nsatisfactory [w]ork/[p]erformance” based on a

“[v]iolation of [the] [c]ode of [e]thics” and the YCSO’s Confidentiality Policy. J.A.

1232. In response to the standard question in NET-101 asking how Billioni’s

performance caused “a loss to the employer,” YCDC answered that Billioni “[h]urt

credibility of Sheriff’s office – no monetary value.” J.A. 1232.

Between learning of Grose’s death during the press conference on October 22nd

and being terminated on October 25th, Billioni notified the United States Department of

Justice that “there was an incident” at YCDC that it “may need to look at.” J.A. 200.

Specifically, Billioni reported that “an inmate had been punched 12 times in the restraint

chair, by an officer who had done this already.”

The Department of Justice contacted

6 Billioni, and the federal agent discussed “several pretty big incidents that have gone on,

in that detention center, in the last few years.” J.A. 202. Before his termination, Billioni

also filed a complaint with the South Carolina Attorney General’s Office laying out “that

an inmate was struck 12 times by an officer who had been previously disciplined for

striking an inmate in a restraint chair.” J.A. 205.

On November 12, 2013, YCSO held another press conference. This time, it

showed the surveillance video. During this second press conference, WCNC reporter

Watson asked Sheriff Bryant why Billioni had been fired. Sheriff Bryant stated, “[T]hat

man was terminated, and I believe you know the answer.” J.A. 276. Sheriff Bryant then

“started to yell” at Watson that “out of all the people in this room, you know the answer

to that question.” J.A. 276-77. Sheriff Bryant refused to allow Watson to ask any more

questions for the remainder of the press conference.

Soon after his termination, Billioni filed suit against Sheriff Bryant, YCDC, York

County, and the YCSO alleging various violations of state and federal law. The district

court dismissed or granted summary judgment to defendants on all of Billioni’s claims

but one: a claim of retaliatory discharge in violation of the First Amendment, brought

under

.

In denying summary judgment on Billioni’s retaliatory-discharge claim, the

district court found that there was a factual question whether Billioni (1) was terminated

because he lied to the department’s internal investigators or (2) because he both told his

wife about the video and lied about doing so to the internal investigators. The district

court found that Billioni’s speech was protected under the First Amendment, because

7 Billioni spoke on a matter of public concern and his interest in the speech outweighed

“any disruption caused by the internal investigation,” and finally that a reasonable jury

“could conclude” from the evidence that Billioni’s protected speech was a substantial

factor in his firing. J.A. 1450–51. That being so, the district court rejected Bryant’s

assertion of qualified immunity. The court reasoned that at the time of Billioni’s

termination, it was clearly established law in the Fourth Circuit that an employee’s

speech about serious governmental misconduct is protected by the First Amendment;

thus, if a jury were to conclude that Billioni’s discussion of the video with his wife had

played a substantial role in his firing, then his termination would have violated clearly

established law, and qualified immunity would be inappropriate.

This interlocutory appeal of the district court’s denial of qualified immunity

followed.

II.

“We review de novo a district court’s decision to deny a summary judgment

motion asserting qualified immunity.” Smith v. Ray,

(4th Cir. 2015).

III.

Sheriff Bryant argues that the district court should have granted him summary

judgment because he is entitled to qualified immunity as a matter of law. In opposition,

Billioni argues that we should dismiss this appeal at the outset for lack of jurisdiction.

We begin by addressing Billioni’s jurisdictional argument and then move to Sheriff

Bryant’s substantive qualified immunity argument. We conclude that we have

jurisdiction over this case but that we cannot reach the substantive qualified immunity

8 issue. We remand to the district court to use the correct legal standard to determine

whether Billioni’s speech is protected under the First Amendment.

“The doctrine of qualified immunity protects government officials from liability

for violations of constitutional rights that were not clearly established at the time of the

challenged conduct.” Iko v. Shreve,

(4th Cir. 2008). When a

defendant in a § 1983 action moves for summary judgment based on qualified immunity,

we have jurisdiction over the denial of the motion. Id. at 234; Hensley ex rel. N.

Carolina v. Price,

(4th Cir. 2017). But our jurisdiction is limited.

“[W]e may only consider whether, on the undisputed facts and the facts considered in the

light most favorable to the plaintiffs, the defendants violated clearly established law.”

Hensley,

. We cannot revisit whether the plaintiff’s evidence was

sufficient to create a genuine dispute as to material fact. Nor can we second guess the

district court’s interpretation of the evidence. We must take the facts as the district court

took them and determine whether, when all reasonable inferences are drawn in the

plaintiff’s favor, the facts entitle the defendant to qualified immunity.

Therefore, we must assume that (1) Billioni spoke out about serious government

misconduct; (2) his speech violated YCDC’s confidentiality policy but did not cause a

significant disruption in the department’s operation and mission; (3) Billioni lied about

his speech during an internal investigation; and (4) that a reasonable jury could infer that

Billioni’s speech on serious government misconduct was a “substantial factor” in his

firing. Using those facts as his starting point, Sheriff Bryant argues that he is entitled to

qualified immunity on two grounds. First, he argues that in October 2013, it was not

9 clearly established that the First Amendment protected Billioni’s speech, because it was

not clearly established that a public employee’s interest in speech involving serious

government misconduct outweighs the “reasonable apprehension” of disruption caused

by the employee’s violation of an internal confidentiality policy. Second, he argues that

in October 2013, it was not clearly established that firing an employee largely—but not

entirely—because of the employee’s speech on serious government misconduct violated

the First Amendment. Those are legal arguments that do not require us to revisit the

evidence or the district court’s construal of the facts. Accordingly, we have jurisdiction

to address them, and we now turn to their merits.

Officials are entitled to qualified immunity when their conduct “does not violate

clearly established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald,

(1982). This is a two-part

inquiry. First, “whether the plaintiff has alleged the deprivation of an actual

constitutional right at all.” Wilson v. Layne,

(1999) (quoting Conn. v.

Gabbert,

(1999)). Second, “whether that right was clearly established

at the time.”

Sheriff Bryant argues that he is entitled to qualified immunity because in October

2013, it was not clearly established that Billioni’s speech was protected by the First

Amendment. Specifically, Sheriff Bryant argues that it was not clearly established that

Billioni’s interest in speaking on a matter of public concern outweighed any disruption

that speech caused to the operation and mission of the YCSO. We hold that the district

court applied the incorrect legal standard in determining whether Billioni’s speech was

10 protected by the First Amendment, and remand for the district court to apply the correct

legal standard as well as to make any further factual findings that may be warranted

under that standard.

As early as 1998, we held that an adverse employment action taken in response to

a public employee’s speech violates the employee’s First Amendment rights if (1) “the

employee ‘was speaking as a citizen upon a matter of public concern’ rather than ‘as an

employee about a matter of personal interest’”; (2) 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) the employee’s “‘speech was a

substantial factor’ in the employer’s decision to take action against him.” Smith v.

Gilchrist,

(4th Cir. 2014) (quoting McVey v. Stacy,

, 277–

78 (4th Cir. 1998)).

Under the first prong of the McVey test a plaintiff must demonstrate that they were

“speaking as a citizen upon a matter of public concern [and not] as an employee about a

matter of personal interest.” McVey,

. The district court found that a

reasonable juror could conclude that Billioni’s statement to his wife about the

surveillance video to be speech on a “matter of public concern,” as it involved

“allegations of misconduct by public employees possibly causing, or contributing to the

death of a man in their custody and control.” J.A. 1449–50 (internal citations and

quotation marks omitted). We agree. Billioni told his wife about a video that showed the

role that an officer’s use-of-force played in a man’s in-custody death, directly

contradicting the YCSO’s official statement on the incident. This speech relates to a

11 “matter of political, social, or other concern to the community.” See Connick v. Myers,

(1983). It is not the kind of “individualized” internal workplace

complaints “significant chiefly to the parties involved” that we have declined to find

implicate matters of public concern. Brooks v. Arthur,

, 375–76 (4th Cir.

2012); see also Stroman v. Colleton Cty. Sch. Dist.,

(4th Cir. 1992)

(explaining that “[p]ersonal grievances, complaints about conditions of employment, or

expressions about other matters of personal interest do not constitute speech about

matters of public concern that are protected by the First Amendment, but are matters

more immediately concerned with the self-interest of the speaker as employee”).

McVey’s second prong balances the plaintiff’s interest in the speech against the

employer’s interest in “avoid[ing] disruption of its internal operations.” Berger v.

Battaglia,

(4th Cir. 1985). The district court found that this prong was

met because “Sheriff Bryant did not make any showing of disruption within the YCSO

due to the statements made by [Billioni] to his wife” and that “any disruption caused by

the internal investigation that was conducted by the YCSO” was “clearly outweighed by

the public’s interest in the disclosure of misconduct or malfeasance.” J.A. 1450 (internal

citations and quotation marks omitted). However, in conducting this balancing the

district court used the incorrect “actual disruption” standard instead of the “reasonable

apprehension of disruption” standard. In Maciarello v. Sumner, we made clear that

courts “do not require the public employer to prove that the employee’s speech actually

disrupted efficiency, but only that an adverse effect was ‘reasonably to be apprehended.’”

, 300 (4th Cir. 1992) (quoting Jurgensen v. Fairfax Cty., Va.,

,

12 879 (4th Cir. 1984)). By looking to whether Sheriff Bryant made a “showing of

disruption within the YCSO” instead of whether Sheriff Bryant made a showing that he

reasonably apprehended a disruptive effect from Billioni’s speech, the district court

committed legal error. Instead of conducting this fact-intensive balancing in the first

instance, we remand to the district court to use the correct legal standard to determine

whether the evidence permits a conclusion that a reasonable factfinder could find that

Sheriff Bryant reasonably apprehended disruption within the YCSO as a result of Billioni

telling his wife about the surveillance video that outweighs Billioni’s interest in speaking

out about the surveillance video.

Sheriff Bryant contends that because the district court applied the incorrect legal

standard for determining whether Billioni’s speech was protected under the First

Amendment, we should find that he is entitled to qualified immunity. We decline to do

so, as we can only reach Sheriff Bryant’s qualified immunity argument after a

determination whether Billioni’s speech is protected by the First Amendment. 2

2 Sheriff Bryant also argues that even if Billioni’s speech should be accorded First Amendment protection, the district court erred in denying qualified immunity because at the time of Billioni’s termination it was not “clearly established law” that an employer could not terminate an employee for protected speech when that speech was a substantial but not exclusive factor in the termination decision. This argument fails under our precedent. We reiterate that given the procedural posture of this appeal, we must assume for purposes of appeal that Billioni’s discussion of the existence and contents of the surveillance video with his wife was a substantial factor in Sheriff Bryant’s decision to terminate him. The third prong of the McVey test asks whether the protected speech was a “substantial factor” in the termination decision, McVey,

, making it clear that the mere existence of a credible lawful motive for an employee’s termination does not, on its own, shield the employer from liability. Our recent cases are consistent with this interpretation of McVey. See Hunter v. Town of Mocksville,

(Continued) 13 (4th Cir. 2015) (holding that a police chief was not entitled to qualified immunity for terminating officers who reported corruption within the department even where the officers received termination letters that gave independent “performance justifications” for their terminations, including “insubordination,” “attitude,” and “other conduct unbecoming a Officer,”); Durham v. Jones,

(4th Cir. 2013) (holding that sheriff was not entitled to qualified immunity for terminating a deputy sheriff who publicized an incident report that detailed officer-use-of-force even where the record contained independent performance-based justifications for the deputy sheriff’s termination including “dissemin[ating] [] departmental information and unbecoming conduct,” “failure to obey a lawful order,” and “failure to carry out responsibilities in a competent manner”). Sheriff Bryant urges us to abandon our own precedent and instead follow the Eleventh Circuit in finding that where the facts assumed for summary judgment purposes “show mixed motives (lawful and unlawful motivations) and preexisting law does not dictate that the merits of the case must be decided in plaintiff’s favor, the defendant is entitled to immunity.” Sherrod v. Johnson,

(11th Cir. 2012) (internal citations and quotation marks omitted). We decline to do so. Such a rule has the practical effect of giving a veneer of legality to those supervisors who give pretextual reasons for termination so long as the record could also support a lawful reason for that termination. And, most saliently, it runs directly contrary to our decisions in Hunter and Durham. Of course, this does not mean that the presence of both lawful and unlawful motivations cannot be dispositive in the context of the second prong of the McVey test. In Cannon,

, we considered a series of text messages sent between police officers that were alternately a matter of public concern and “disruptive and insubordinate.”

. We concluded that this combination of messages meant that the officers’ interest in First Amendment expression did not outweigh the police department’s interest in maintaining order and discipline, such that we reversed the district court’s determination that the department was not shielded by qualified immunity from the retaliation claims.

. Finally, Sheriff Bryant contends that to the extent that the Court is inclined to rely on the denial of qualified immunity in Hunter or in Durham, both cases were decided after October 2013 when Billioni was terminated. But what matters is not when the cases were decided, but that the events in both Hunter and Durham occurred before the events in this case. In both Hunter and Durham we held that it was “clearly established in the law of this Circuit in September 2009 that an employee’s speech about serious governmental misconduct, and certainly not least of all serious misconduct in a law enforcement agency, is protected.” Hunter,

(citing Durham, 787 F.3d at 303–304). Both cases acknowledge the existence of an already clearly established right.

14 IV.

We remand to the district court with instructions to apply the correct legal

standard to determine whether Billioni’s speech is protected under the First Amendment.

REMANDED

15