Donald R. English, William R. Williams, and the A. B. C.employees Association of New Hanover County, Appellants, v. W. Douglas Powell, Individually and As Administrator to Thenew Hanover County Alcoholic Beverage Control Board, Charless. Carter, Individually and As Assistant to Theadministrator, the New Hanover County Alcoholic Beveragecontrol Board, John E. Mowbray, Pender P. Durham, Eugene W.edwards, Individually and As Members of the New Hanovercounty Alcoholic Beverage Control Board, Appellees.e. A. Shands & Vera Shands, Appellants, v. W. Douglas Powell, Individually and As Administrator to Thenew Hanover County Alcoholic Beverage Control Board, the Newhanover Alcoholic Beverage Control Board, and Its Individualmembers: John E. Mowbray, Pender P. Durham and W. Eugeneedwards, Appellees.william L. Clark, Robert Kraus, Ledley B. Symmes, C. C.williams, Telford Davis, Bedford Jackson Andwilliam T. Small, Appellants,andjames J. Wall, Abc Employees Association, Donald R. English,william R. Williams, E. A. Shands and Wife, Verashands, Counterclaim Defendants, v. W. Douglas Powell, Individually and As Administrator of Thenew Hanover County Alcoholic Beverage Control Board, Charless. Carter, Individually and As Assistant to Theadministrator of New Hanover County Alcoholic Beveragecontrol Board, the New Hanover County Alcoholic Beveragecontrol Board, John E. Mowbray, William Rehder, W. Eugeneedwards, Individually and As Members of the New Hanovercounty Alcoholic Beverage Control Board and Pender Durham, Appellees, 592 F.2d 727 (4th Cir. 1979)

In these consolidated appeals the plaintiff/appellants, (1) a personnel director and his wife, (2) two liquor store managers, and (3) seven liquor store employees allege that their constitutional rights were violated by the defendant/appellee, New Hanover County Alcoholic Beverage Control Board (hereinafter "Board.")¹  Each plaintiff with the exception of Vera Shands, See § I Infra, was an employee of the Board at the time of the incidents giving rise to the separate but related lawsuits. The district court granted summary judgment for the Board in each case, and we affirm.

In 1974 and early 1975, the Board was reorganized upon recommendation of the New Hanover County Composite Board.²  Plaintiff Vera Shands was vice-chairman of the Composite Board Committee assigned to plan and implement the reorganization. As one result of the reorganization, a personnel management position was created and was filled by Vera Shands' husband, plaintiff E. A. Shands. Mr. Shands had previously been a liquor store manager.

Several months after the initial reorganization and appointment of Mr. Shands, defendant W. D. Powell, a Board member, was appointed as chief administrator of the ABC system, making him Shands' immediate supervisor. Shands was bitterly and openly opposed to Powell's appointment while the appointment was being considered. In particular, he complained to Board members that there was a "lack of communication" between Powell and himself and that Powell was interfering with Shands' authority in matters concerning personnel management.

On October 9, 1975, the day of Powell's appointment, Powell and Shands met at Powell's request to discuss the problems created by Shands' attitude. A "heated discussion" ensued at this meeting, and much of the conversation is a matter of disputed fact. However, Shands does not deny that he agreed to voice any further complaints not to Board members but rather to Powell directly, i. e., "in the chain of command," although he states that he made this concession merely to gain time to discuss the matter with his wife and to seek legal advice. At the close of the conversation Powell told Shands that the position of personnel director was being abolished, but that Shands would be kept on at the administrative level in an advisory capacity.

That same evening Shands told his wife about the meeting with Powell. Mrs. Shands immediately became "irrational" and began making telephone calls to various Board members to complain about the treatment afforded her husband. Shands was unable to prevent his wife from making the calls, but he did take the telephone away from her several times to discuss both his situation and the propriety of Powell's appointment as chief administrator. The last call Mrs. Shands made was to Pender Durham, a Board member and good friend of the Shands'. Shands again took the phone away from his wife and spoke to Durham; at the close of the conversation Durham told him that, as a result of the calls made by Mrs. Shands to members of the Board, Powell would fire Shands the next morning.³  Durham later called Powell to intercede for Shands, and Powell agreed to reconsider overnight.

The next morning Shands again met with Powell. Anticipating that he was about to be fired, he requested that he be reassigned to his former position of liquor store manager. Told that no such positions were available, he then requested assignment to the position of liquor store clerk. Powell responded that he would "think about it" and decide within three days whether Shands would be fired or reassigned; he added that, if Shands or his wife made any more complaints to members of the Board, Shands would immediately be fired. On October 13 Powell gave Shands a job as store clerk. Shands appealed to the Board for reinstatement to his former position and, after his request was denied, filed this lawsuit.

As a threshold issue we review the district court's dismissal of Vera Shands from this action on the ground that she has no standing. Mrs. Shands, a party plaintiff, alleged that her rights under the first amendment were infringed during the sequence of events which led to her husband's demotion. Although Mrs. Shands admits that she cannot rest her claim to relief solely on the legal rights of her husband, Warth v. Seldin, 422 U.S. 490, 498-99, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975), she alleges that her injuries meet the test suggested by Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 222, 44 L. Ed. 2d 600 (1975): subjective chill on her first amendment rights And present objective harm. 421 U.S. at 816-17, 95 S. Ct. 222, citing Laird v. Tatum,408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972). The subjective chill results from Powell's statement to E. A. Shands that, if his wife made any further complaints to the Board, Shands would be fired. The objective harm results from Shands' demotion to store clerk and attendant decrease in salary; Mrs. Shands, who was a housewife while her husband was personnel manager, had to take a job to supplement the family income.

We agree with the district court that these injuries are too indirect and speculative to support Mrs. Shands' standing as plaintiff in a lawsuit filed to challenge the propriety of her husband's demotion. It is a novel theory that a wife possesses such a proprietary interest in her husband's position that a decrease in his salary gives her an actionable claim. Plaintiffs admit that this theory is without precedent, and we decline to write new law on the facts of this case. We therefore affirm the dismissal of Vera Shands from this lawsuit.

The linchpin of E. A. Shands' claim for relief is his contention that he was discharged from his job as personnel manager for exercising his first amendment right to speak out on an issue of public concern. Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). The district court granted summary judgment for defendant Board and the individual defendants, holding that Shands had voluntarily requested his demotion to clerk and had not been constructively discharged, See J. P. Stevens & Co., Inc. v. N. L. R. B., 461 F.2d 490 (4th Cir. 1972), and that, in any event, his speech was not constitutionally protected within the meaning of Pickering.

Shands, of course, requested his demotion to store clerk, and the Board relies on Smith v. Board of Regents, 426 F.2d 492 (5th Cir. 1970) to support its position that Shands' voluntary action precludes any subsequent assertion that his constitutional rights were infringed. We are not persuaded that Smith is dispositive. There a college professor was informed several times by the chairman of his department that the president "had doubts about" recommending him for reappointment; the professor submitted his resignation. Several weeks later he requested reinstatement, charging that his resignation had been prompted by his concern that he would be fired. The college refused to rehire him. In a subsequent lawsuit Smith alleged that his "dismissal" from public employment violated his constitutional rights. The district court found from all the evidence adduced at trial that he had not been dismissed and, since his resignation had been voluntary, it could not be termed a constructive discharge. On appeal, the Fifth Circuit affirmed the findings of the lower court.

Here, Shands alleges that Pender Durham told him on October 9 that he would be fired the following morning. This factual situation is sufficiently different from Smith that we cannot say with assurance, on motion for summary judgment, that Shands' request for demotion was voluntary.⁴  In any event, the district court did not rest its decision on that ground alone. We therefore address the issue of whether Shands' demotion was impermissible under the rationale of Pickering v. Board of Education, supra.

In Pickering, a public school teacher was fired for writing a letter to the editor of a newspaper in which he criticized budgetary policies of the school board. The Supreme Court, finding that the teacher had spoken out as a private citizen on an issue of public concern, held that the dismissal was therefore constitutionally infirm. See also Bernasconi v. Tempe Elementary School District No. 3, 548 F.2d 857 (9th Cir. 1977), Cert. denied, 434 U.S. 825, 98 S. Ct. 72, 54 L. Ed. 2d 82 (1978). Here, Shands' complaints to members of the Board are more like those characterized in Chitwood v. Feaster, 468 F.2d 359, 360-61 (4th Cir. 1972):

Some of the affidavits refer to what seems to be bickering and running disputes with the department heads. We do not intend to suggest that that kind of speech is protected by the First Amendment in the sense that it may not be considered in connection with the termination of the employment relationship. A(n employer) has a right to expect a(n employee) to follow instructions and to work cooperatively and harmoniously with the head of the department. If one cannot or does not, if one undertakes to seize the authority and prerogatives of the department head, he does not immunize himself against loss of his position simply because his noncooperation and aggressive conduct are verbalized.

See also Place v. Shepherd, 446 F.2d 1239 (6th Cir. 1971).⁵ 

The record before us admits of only one construction. Shands was bitterly opposed to the appointment of Powell as his direct superior. Powell, angered at Shands' "politicking" with the Board to voice his opposition, demanded and received Shands' assurance that, henceforth, he would work cooperatively with Powell and would observe the "chain of command" to voice any complaints. Shands and his wife broke that commitment on the same day it was made. Powell would have been justified in firing his recalcitrant personnel manager, See Cooper v. Johnson, supra ; he in no way violated Shands' constitutional rights in acceding to Shands' own request for the lesser sanction of demotion. In sum, there are limits to Pickering. See Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 1797 n. 27, 52 L. Ed. 2d 261 (1977).

Therefore, the judgment of the district court granting summary judgment for defendant Board and the individual defendants is affirmed.

Plaintiffs Donald R. English and William R. Williams are liquor store managers, employed by the defendant Board,⁶  who belong to the ABC Employees Association of New Hanover County (hereinafter "Association"), also a plaintiff in this action. Plaintiffs claim that their constitutional rights under the first and fourteenth amendments were infringed when they were threatened with dismissal from their jobs unless they resigned from the Association.

The Board received a letter from the Association's counsel on November 21, 1975, requesting a meeting to discuss "terms and conditions of employment." The Board, concerned about the legality of the requested meeting,⁷  deferred action while it sought a ruling from the Attorney General of North Carolina.

In its letter the Association claimed to represent 90% Of the ABC employees; simple arithmetic indicated to the Board that most of its liquor store managers must therefore be Association members. Charles Carter, Assistant Administrator of the Board, called several managers that afternoon to discuss the implications of their membership. Plaintiffs allege that Carter told them that, unless they resigned from the Association immediately, they would be fired.⁸  On November 22, after meeting with their attorney, plaintiffs went to Carter's house to discuss the matter with him again. They allege that the threat of dismissal was repeated. Plaintiffs made no attempt to discuss or confirm the threat with administrator Powell or with the Board; rather, they filed this lawsuit on November 24.

We agree with the conclusion of the district court that summary judgment for defendant Board was appropriate. First, it is unclear whether the plaintiffs, store managers, have any constitutional or statutory right to belong to the Association. Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653, 94 S. Ct. 2023, 40 L. Ed. 2d 443 (1974) (private employer may prohibit store managers from joining union); Elk Grove Firefighters Local No. 2340 v. Willis, 400 F. Supp. 1097 (N.D. Ill. 1975), Aff'd, 539 F.2d 714 (7th Cir. 1976) (city may prohibit officers in fire department from joining union). See also York Co. Fire Fighters Ass'n v. County of York, 589 F.2d 775 (4th Cir. 1978). Although the Association denies emphatically that it is a labor organization or union, it did request a meeting to discuss terms and conditions of employment. However, we need not decide whether this argument is one of substance or semantics, since we rest our affirmance upon the simple fact that plaintiffs have suffered no harm which demands redress in the federal courts.

On December 19, 1975, the Board issued the following Statement of Policy :

Our employees are free to join and support an employees union or any organization they wish, so long as they do not thereby interfere with work or reasonable discipline within our organization. No one has been punished or threatened with punishment by an official of this agency on account of such activities. They will not be punished or threatened with punishment for that in the future.

This does not mean, however, that such employee activities will be permitted to interfere with the efficient and uninterrupted operation of this public business. Any interference with such efficient operations, from whatever source and for whatever reason, will be dealt with in accordance with good business judgment and the responsibility imposed upon the Board by the public.

It is uncontroverted that the plaintiffs have not been fired or otherwise disciplined for their membership in the Association. In addition, the Board in its Statement of Policy unequivocally disclaims any intention to take such action in the future. On these facts we hold that plaintiffs have failed to demonstrate either subjective chill on their first amendment rights⁹  or any present objective harm or threat of specific future harm. Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975). Although plaintiffs were not required to exhaust remedies before filing this suit, Monroe v. Pape, 365 U.S. 167, 183, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), we note that this entire matter could have been settled promptly through communication rather than litigation.

Therefore, the judgment of the district court granting summary judgment for defendant Board and the individual defendants is affirmed.

Plaintiffs are seven former employees of the Board who were laid off from their jobs on or about March 27, 1976;¹⁰  they allege that the Board took this action to punish them for their membership in the Association and to discourage other ABC employees from joining the Association.

The following facts are undisputed. During the fiscal year ending June 30, 1975, the ABC system of New Hanover County ranked 98/119 in overall efficiency in the State. The Board, seeking ways to improve that rating, concluded Inter alia that a reduction in personnel was necessary. The employees were notified on October 27, 1975 that a reduction in the work force would be accomplished through the normal process of attrition. By March 27, 1976 the anticipated attrition had not occurred. The Board therefore laid off ten employees, eight of whom were members of the Association. Plaintiff C. C. Williams was the president of the Association; plaintiff Ledley B. Symmes was the vice-president. The ten employees laid off were those with the least seniority in the ABC system.

From these facts the plaintiffs would have us infer that the layoffs were improperly motivated by the Board's animus toward the Association, an organization which has been in existence since 1967. Notwithstanding plaintiffs' bare assertions, the record admits of but one construction. All of the evidence demonstrates that the layoffs were prompted by business necessity. Likewise, the evidence shows that the layoffs were accomplished according to seniority accepted business practice. And although the parties dispute whether plaintiff Symmes' seniority was correctly computed,¹¹  the dispute is at best a good-faith difference of opinion between Symmes and the Board. In sum, plaintiffs have failed to produce any evidence which would support the allegations in their complaint.

Therefore, the judgment of the district court granting summary judgment for defendant Board and the individual defendants is affirmed.

AFFIRMED.