846 F.

2d 69
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
Dawson ALEXANDER, Plaintiff-Appellant,
v.
Michael MCGUFFIN, Chief of Police of the City of
Westminster, David G. Johnson, Mayor of the City of
Westminster, Vera M. Duke, Ralph Cheek, Jim M. Smith, Lois
J. McCarley, Lawton Burton; Sammy Dixon; City Council
Members, all in their official capacities, Defendants-Appellees.
No. 87-2627.

United States Court of Appeals, Fourth Circuit.

Argued April 7, 1988.
Decided May 6, 1988.

Stephen John Henry for appellant.

Cary Calhoun Doyle (J. Victor McDade, Doyle & O'Rourke on brief) for
appellees.
Before K.K. HALL, MURNAGHAN, and SPROUSE, Circuit Judges.
PER CURIAM:

Dawson Alexander was fired from the Westminster, South Carolina police
department after he took umbrage at two misconduct warnings and showed up
at a city council meeting to complain.

On May 20, 1985, Alexander, an officer with the Westminster, South Carolina
police department, returned from medical leave and was presented with written

warnings for failing to patrol Main Street on foot as ordered and for spending
too much time in City Hall when not on official police business. The warnings
were dated April 24, 1985; on that date, Alexander was on a leave of absence
for medical reasons. The warnings were for conduct before Alexander went on
leave.
3

On May 21, 1985, Alexander met with the police committee of the City of
Westminster to discuss the warnings. The committee is made up of Police
Chief McGuffin and two city councilmen, Ralph Cheek and Jim M. Smith.
Later that evening, Alexander showed up at the monthly City Council meeting
and asked to address the council.

The council went into executive session to discuss personnel matters in order to
hear Alexander; afterwards, the council announced that it had agreed to provide
Alexander with a city personnel manual, as he had requested. (The police chief
testified later that Alexander had always had easy access to a copy of the
manual and had frequently consulted it in his presence.) The council then voted
unanimously to fire Alexander from the police department. On May 22,
Alexander was given a letter terminating his employment and waiving the two
week notice period. The letter stated that he was being terminated "for
insubordination in failing to carry out orders given by your direct supervisor.
Further, your attitude is undesirable." According to Chief McGuffin, who
signed the termination letter, Alexander's job was not in jeopardy until he
showed up at the council meeting.

After his termination, Alexander met with Chief McGuffin, his direct
supervisor, as provided under the grievance procedures in the city personnel
manual. He also requested and received a hearing before the city's grievance
committee. In that hearing, Alexander was represented by counsel, who was
allowed to present evidence and cross-examine witnesses for the city. The
grievance committee did not have the power to reverse the termination decision
of the city council, but it could and did criticize the council's action and urged
reconsideration. On September 24, 1985, the city council reviewed the
grievance committee report and then reaffirmed its decision to terminate
Alexander's employment.

In December, 1985, Alexander filed suit in federal district court against the city
police chief, the mayor, and city council members. The complaint set forth
three causes of action: retaliation in violation of the First Amendment, denial of
due process, and wrongful discharge (a pendent state claim). Summary
judgment was granted for all the defendants. Alexander appealed.

I.
7

On appeal, Alexander argues that he should be able to proceed with his claim
that the defendants violated his First Amendment right to free association.
Alexander has not, however, alleged facts adequate to claim a denial of free
association. Alexander was not prevented from attending the city council
meeting; and it is clear from the record that he was not punished for merely
attending the city council meeting or for participating in a rally or other group
activity. Rather, he was, viewing the facts in the light most favorable to him,
punished (fired) because of the statements he made to the city council and to
his superiors, and because of the alleged misconduct he had been warned about
previously. This case thus potentially raises at most an issue about violating
protected speech, but not about free association.

The district court noted correctly that to recover for wrongful discharge in
violation of his First Amendment rights, a public employee must demonstrate
that the speech or activity was protected; that the speech or activity was a
"motivating factor" or "but for" cause of the decision to discharge him; and that
the employer would not have reached the same decision in the absence of the
protected conduct. See Mount Healthy City Board of Education v. Doyle, 429
U.S. 274, 287 (1977). Alexander has failed to meet the Mount Healthy test.

In cases involving public employees, the Supreme Court has held that First
Amendment rights are not as broad in the workplace as they are in the public
forum. The Court has noted that "the State has interests as an employer in
regulating the speech of its employees that differ significantly from those it
possesses in connection with regulation of the speech of the citizenry in
general." Pickering v. Board of Education, 391 U.S. 563, 568 (1968). The
limitation on First Amendment rights in the workplace was reinforced recently
by the Supreme Court in Connick v. Myers, 461 U.S. 138 (1983), where the
Court upheld the discharge of an assistant district attorney for insubordination,
stating that

10

when a public employee speaks not as a citizen upon matters of public concern,
but instead as an employee upon matters only of personal interest, absent the
most unusual circumstances, a federal court is not the appropriate forum in
which to review the wisdom of a personnel decision taken by a public agency
allegedly in reaction to the employee's behavior.

11

Id. at 147. The Court also remarked,

12

While as a matter of good judgment, public officials should be receptive to

constructive criticism offered by their employees, the First Amendment does
not require a public office to be run as a roundtable for employee complaints
over internal office affairs.

13

Id. at 149. We have cited the Connick and Pickering language in Jurgensen v.
Fairfax County, 745 F.2d 868 (4th Cir.1984), and have noted that police
officers fall at the narrow end of the spectrum when evaluating the freedom of
employees to speak and act, because police departments are "paramilitary
organizations" and "the free speech rights of employees in those departments
must thus be evaluated with the special character of the organization in mind."
Id. at 880.

14

Even without considering the special nature of a police department, it is clear,

as the district court found, that Alexander's speech dealt purely with matters of
personal concern and not with matters of public interest, so that his speech was
not protected by the First Amendment. There are no genuine issues as to any
material facts, so summary judgment was proper.

II.
15

The district court granted summary judgment on Alexander's claim that his
firing violated due process on the grounds that Alexander did not have a
protected property interest. We share the district court's doubt that a property
interest was present. In any event, summary judgment was properly granted
because Alexander was afforded all the process to which he was entitled even if
he had a protected property interest.

16

Citing Ludwick v. This Minute of Carolina, Inc., 287 S.C. 219, 337 S.E.2d 213
(1985), the district court ruled that, because Alexander was an at-will
employee, without an employment contract, he had no property interest in his
job. It is true that the South Carolina Supreme Court ruled in Ludwick that
South Carolina still recognizes the traditional at-will employment doctrine and
that the only exception is where the retaliatory discharge of an at-will employee
constitutes a violation of a clear mandate of public policy. See id. at 224-25,
337 S.E.2d at 216. However, in Small v. Springs Industries, Inc., 292 S.C. 481,
357 S.E.2d 452 (1987), the South Carolina Supreme Court ruled that an
employee handbook, bulletin, or other material provided by an employer may
limit the at-will status of employees. In Small, the court specifically held that
where an employer had issued an employee handbook setting forth a four-step
disciplinary process to precede discharges, the employer could not discharge an

employee without following the four-step process. Id. at 485-86, 357 S.E.2d at
454-55.
17

Similarly, here the city had a detailed personnel manual that set forth a
progressive disciplinary policy and provided a grievance and appeal procedure.
It is possible that under South Carolina law the issuance of the manual modified
the at-will status of city employees. In contrast to Small, however, in the
present case the city followed the procedures set forth in the manual. While the
city did not use the full progressive disciplinary procedure for the misconduct
that led to the initial set of warnings (the procedures call for an oral warning, a
written warning, a suspension and then a discharge; there was no suspension
here), the manual also provides that for certain offenses the city council may
discharge a permanent employee with two weeks notice and payment of
accrued annual leave. One of the reasons specified in the manual is
"undesirable attitudes." The manual also specifies that "Insubordination (failing
to carry out orders given by employee's supervisor)" is an offense that may
result in immediate discharge without prior warnings or suspension. The letter
notifying Alexander of his termination cited insubordination and an undesirable
attitude as the reasons for his discharge. Alexander was paid for two weeks of
work after his termination, and he was paid his accrued annual leave.

18

Alexander was also afforded the full grievance and appeal procedure provided
by the manual. He had a hearing before the city grievance committee, at which
he was represented by counsel and had an opportunity to present witnesses and
cross-examine the city's witnesses. The grievance committee recommended that
the city council reconsider its decision, acknowledging that the council was
"within policy boundaries" but concluding that the "council acted hastily" and
that "there was a real lack of cooperation from both parties." The grievance
committee did not have the power to reverse the decision, however. After
consideration of the committee's report, the council rejected the
recommendation and reaffirmed its decision to terminate Alexander's
employment.

19

Alexander also complains that he was denied due process because he was
denied an unbiased tribunal. He points to the fact that Ralph Cheek, one of the
council members who voted to discharge him, was also a witness against him at
his grievance hearing. Cheek was also on the police committee that Alexander
met with before his appearance at the city council meeting. Alexander's
complaint about possible bias thus stems from Cheek's participation in the
earlier stages of his case. It is well established that this alone is insufficient to
constitute a denial of due process. Bowens v. North Carolina Department of
Human Resources, 710 F.2d 1015, 1029 (4th Cir.1983) ("[t]o be disqualifying,

personal bias must stem from a source other than knowledge a decision maker
acquires from participating in a case") (citing United States v. Grinnell Corp.,
384 U.S. 563, 583 (1966)).
20

AFFIRMED.