Thomas J. Holland, Jr., Plaintiff-appellant, v. Edith Rimmer; Alpha Scott; Edith Elswick; Raymond Cole;arvil Ratliff; William P. Harris; Earl Scott; Carolbrunty; Commonwealth of Virginia; and County of Buchanan,virginia, Defendants-appellees, 25 F.3d 1251 (4th Cir. 1994)

ARGUED: John Lumley Bagwell, John L. Bagwell, P.C., Grundy, VA, for appellant. Kurt Joseph Pomrenke, White, Elliott & Bundy, Bristol, VA, for appellees. ON BRIEF: Steven R. Minor, White, Elliott & Bundy, Bristol, VA, for appellees.

Before RUSSELL and WILKINS, Circuit Judges, and SMITH, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed and remanded in part by published opinion. Judge REBECCA BEACH SMITH wrote the opinion, in which Judge DONALD RUSSELL and Judge WILKINS joined.

OPINION

REBECCA BEACH SMITH, District Judge:

Thomas J. Holland, Jr. ("Holland") brought this action, pursuant to 42 U.S.C. § 1983, against his former employer, the Buchanan County Department of Social Services; members of the Buchanan County Board of Social Services and the Board of Supervisors, in both their individual and official capacities ("the Board"); the Commonwealth of Virginia;¹  and the County of Buchanan. Holland's suit arises out of the termination of his employment by the Board. He appeals an order of the district court granting summary judgment in favor of the Board and the County of Buchanan. The district court relied on Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330, 106 S. Ct. 662, 664, 88 L. Ed. 2d 662 (1986), in ruling that Holland received due process when the Board terminated his employment. Further, the district court held that Holland failed to present a factual basis for any First Amendment claim. For the reasons stated below, we affirm the decision of the district court, but remand for a determination of whether the district court will exercise pendent jurisdiction over Holland's remaining state law claims.² 

On August 28, 1990, the Board of the Department of Social Services of Buchanan County voted to fire Thomas J. Holland, Jr. from his position as Director of Social Services of Buchanan County, Virginia. No reasons were given for his discharge. Holland filed a grievance, and on September 14, 1990, the Board sent him a letter, stating its reasons for his discharge and enclosing an unsatisfactory employee evaluation. In the same letter, the Board gave Holland five days to respond to its reasons for the discharge. Holland chose not to respond. By letter dated September 24, 1990, the Board reinstated Holland and fully compensated him for the period from August 28, 1990 to September 24, 1990, due to its initial failure to provide him with an explanation for his first termination. On the same date, however, the Board again fired Holland, providing him with four reasons for his dismissal,³  and gave him a reasonable time to respond to its action. Holland again filed a grievance, requesting a hearing.

A grievance panel hearing was conducted on June 25, 26, and 27, 1991, and a final panel decision was duly entered on August 28, 1991. The grievance panel found that the Board of Social Services did not comply with procedural requirements of the personnel manual when it fired Holland on August 28, 1990,⁴  and that Holland was not guilty of committing a Group I or Group II offense.⁵  However, the grievance panel apparently did find Holland guilty of a Group III offense, namely falsifying a record, which was one of the four reasons given for Holland's discharge on September 24, 1990.⁶  Because it found that the Board later ratified the acts for which it discharged Holland, the panel reinstated him effective July 15, 1991.⁷  Finally, the panel specifically denied Holland back pay "due to the mitigating circumstances." J.A. at 47.

Holland filed this action, pursuant to 42 U.S.C. § 1983, seeking lost wages, attorney's fees, fringe benefits, damages for mental anguish and pain and suffering, and punitive damages. Holland alleged that the Board's decision to terminate his employment deprived him of a property right without due process of law, in violation of the First and Fourteenth Amendments to the United States Constitution.⁸  Holland asserted that the Board's failure to provide him with a hearing prior to his termination violated his Fourteenth Amendment due process rights. Additionally, he claimed that the Board fired him in retaliation for disciplining family members and political "cronies" of Board members, in violation of his First Amendment rights.

The district court granted appellees' motion for summary judgment, holding that under Parratt, 451 U.S. 527, 101 S. Ct. 1908, Holland "received the due process to which he was entitled" and that a federal court must give preclusive effect to findings of state administrative agencies. Layne v. Campbell County Dep't of Social Servs., 939 F.2d 217 (4th Cir. 1991). Thus, the district court held that it was precluded from making any further factual findings, reviewing the panel's decision, or awarding any further damages. Further, the district court held that Holland's First Amendment claim lacked factual support.

This court reviews the entry of summary judgment de novo, applying the same standard applicable to the district court. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied, --- U.S. ----, 112 S. Ct. 1172, 117 L. Ed. 2d 417 (1992).

The district court granted summary judgment on Count 2 of Holland's complaint (the First Amendment claim), stating:

[N]owhere in Count 2 or anywhere else in the complaint, does Holland assert any factual basis for this claim. Holland's affidavit does not set forth a factual statement of any denial of free speech. There being no factual basis for this claim, summary judgment is granted to the defendants as to Count 2.

J.A. at 129. Holland contends that his complaint properly stated a claim for violation of the First Amendment.⁹ 

The Supreme Court has established definitively that "a state or a division of 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, 107 S. Ct. 2891, 2896, 97 L. Ed. 2d 315 (1987); Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 2697, 33 L. Ed. 2d 570 (1972). However, plaintiffs asserting retaliatory discharge claims under 42 U.S.C. § 1983 must meet a three-pronged test. Huang v. Board of Governors, 902 F.2d 1134, 1140 (4th Cir. 1990). The employee must first show that he engaged in speech on a matter of public concern. Id.; see Dwyer v. Smith, 867 F.2d 184, 193 (4th Cir. 1989) (employee must show his speech was constitutionally protected). Second, the claimant must demonstrate that the alleged retaliatory action deprived him of some valuable benefit. Huang, 902 F.2d at 1140. Finally, the discharged employee must show a causal relationship between the protected speech and the retaliatory action, such that " 'but for' the protected expression the employer would not have taken the alleged retaliatory action." Id. Although Holland has alleged that his conduct in disciplining friends of the Board was the cause of the adverse employment action, his complaint fails on the first prong of the test.¹⁰ 

In assessing whether particular speech is protected by the First Amendment, the court considers "(1) whether a public employee's speech qualifies as a matter of public concern, and (2) what effect the speech has on the efficiency, discipline and proper administration of the workplace." Dwyer, 867 F.2d at 193. However, if the speech cannot be characterized as "relating to any matter of political, social, or other concern to the community," the court's inquiry ends there. Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 1690, 75 L. Ed. 2d 708 (1983) (noting that, when employee expression is not of public concern, "government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment").¹¹ 

The final determination whether the speech relates to a matter of public concern is a question of law for the court, Huang, 902 F.2d at 1140, and should be made by examining the "content, form and context of a given statement, as revealed by the record as a whole." Connick, 461 U.S. at 147-48, 103 S. Ct. at 1690. Because the inquiry is fact specific, it requires a case-by-case analysis. In the case sub judice, it is important to keep in mind that the speech for which the Board allegedly fired Holland involved internal discipline meted out by Holland to his subordinates. We turn, therefore, to a consideration of the content, form, and context of Holland's expressions in order to determine whether they involved matters of public concern.

As this court noted in Jurgensen v. Fairfax County, if the employee's expression deals primarily with matters of

"limited public interest" and does not "seek to bring to light actual or potential wrongdoing or breach of public trust," centering instead on matters primarily, if not exclusively "of personal interest" to the employer such as employee grievances over internal working conditions, etc., that fact must be weighed in determining whether a matter of true public concern is involved for the "First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs."

745 F.2d 868, 879 (4th Cir. 1984) (quoting Connick, 461 U.S. at 148-49, 103 S. Ct. at 1691). In other words, the inquiry is designed to avoid turning every public employee expression of dissatisfaction into a constitutional case. Berger v. Battaglia, 779 F.2d 992, 999 (4th Cir. 1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2278, 90 L. Ed. 2d 720 (1986); see Connick, 461 U.S. at 149, 103 S. Ct. at 1691 ("To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark--and certainly every criticism--directed at a public official would plant the seed of a constitutional case."). In Berger, this court further narrowed the inquiry into content, stating that " [t]he focus is ... upon whether the 'public' or the 'community' is likely to be truly concerned with or interested in the particular expression, or whether it is more properly viewed as essentially a 'private' matter between employer and employee." Berger, 779 F.2d at 999.

Viewed under these criteria, the statements made and the resulting discipline meted out by Holland to his subordinates concerned their performance as employees and clearly involved only matters of internal personnel management and not matters of public concern. Nowhere does Holland allege that the disciplinary statements he made to the other employees were in any way political or involved any matter of concern to the public. See, e.g., Barnes v. Small, 840 F.2d 972, 982-83 (D.C. Cir. 1988) (holding that employee's statements addressing misbehavior of other employees in his office did not involve matter of public concern). On the contrary, Holland's complaint alleges only that he disciplined his subordinates in the course of carrying out his legitimate job duties. Such internal personnel matters are not likely to arouse the public's interest and do not become matters of public concern merely because they occur in a public agency. Connick, 461 U.S. at 149, 103 S. Ct. at 1691.

Furthermore, the form and context of Holland's speech support a finding that it did not implicate matters of public concern. Holland's statements were made as a supervisory employee to other employees, not as a citizen speaking out to the public about matters of public concern. Id. at 147, 103 S. Ct. at 1690; see Kurtz v. Vickrey, 855 F.2d 723, 727 (11th Cir. 1988) (employee's effort to communicate his or her concerns to the public is relevant to determination whether speech relates to matter of public concern). Both the content, internal employee discipline, and the context, in-house communications between employees speaking as employees, of Holland's expression convince this court that Holland's speech was not on a matter of public concern. Absent even an allegation that he engaged in protected speech, Holland cannot meet the first prong of the test set forth in Huang. 902 F.2d at 1140.¹²  Therefore, the district court correctly granted summary judgment for appellees on Holland's First Amendment claim.¹³ 

We turn next to the district court's ruling that the Board's termination of Holland afforded him sufficient due process. For the purposes of deciding whether there was a due process violation, the district court assumed that Holland had a property interest in his job. We will likewise assume, for the purposes of this appeal, that a Director of Social Services has a protected property interest in his job, and that he is, therefore, entitled to procedural due process before being deprived of such interest.¹⁴ 

All parties agree that appellees failed to follow the Virginia personnel procedures, and failed to provide Holland with due process, when they terminated him on August 28, 1990. Appellees contend however that, from August 28, 1990, when Holland was fired the first time, until September 24, 1990, the date on which he was finally terminated, Holland suffered no deprivation of a property right. Holland was reinstated and received full wages and benefits for this period of time.

Section 1983 provides that every person who, under color of law, subjects any citizen of the United States to the deprivation of any right secured by the Constitution shall be liable. Thus, in order to state a claim under 18 U.S.C. § 1983, Holland must have suffered some deprivation of property. Royster v. Board of Trustees of Anderson County Sch., 774 F.2d 618, 621 (4th Cir. 1985). In a factually similar case, the Sixth Circuit held that an employee who was reinstated with full back pay and benefits was not deprived of any property interest from the date of her earlier demotion until the date of her termination. Sewell v. Jefferson County Fiscal Court, 863 F.2d 461, 467 (6th Cir. 1988); see Gearhart v. Thorne, 768 F.2d 1072, 1073 (9th Cir. 1985) (holding that employee who was reinstated with back pay suffered no due process violation).

In Royster, this court held, in the context of a written employment contract, that "any constitutionally protected property interest [an employee] had as a result of his employment contract [was] satisfied by payment of the full compensation due under the contract." 774 F.2d at 621.¹⁵  We likewise find it reasonable to conclude that, because Holland received all the pay and benefits to which he was entitled, he suffered no deprivation of property for the period from August 28 to September 24, 1990.¹⁶  Therefore, we turn next to an examination of the second termination.¹⁷ 

Holland asserts that the Board terminated him on September 24, 1990, without providing him with procedural due process because it failed to follow the procedures set out in Volume 1A of the Virginia Department of Social Services Personnel Manual and mandated by the Supreme Court in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). Specifically, Holland claims that the Board failed to 1) give him written notice on form 129-01-004 and an opportunity to respond prior to terminating him; 2) document or support his dismissal with past performance evaluations; and 3) follow other provisions of the merit system plan, namely, the provision providing for fifteen days notice prior to termination. However, the record reveals clearly that the Board provided Holland with an opportunity to respond prior to discharging him on September 24, 1990. Moreover, in firing Holland for the second time, the Board complied with the procedures set out in the personnel manual.

First, Holland clearly received written notice of the reasons for his termination in both the Board's September 14, 1990 letter and its September 24, 1990 letter. Moreover, in its September 14 letter, the Board offered Holland an opportunity to respond prior to his discharge on September 24. Holland's complaint that he did not receive notice on Form 129-01-004, as specified in the personnel manual, can hardly support a finding that he was deprived of procedural due process.¹⁸  Due process clearly requires notice of the charges against an individual, but not on any particular form. Loudermill, 470 U.S. at 545, 105 S. Ct. at 1495; see Buschi v. Kirven, 775 F.2d 1240, 1256 (4th Cir. 1985) (phone call sufficient).

Second, Holland did in fact receive an unfavorable employee evaluation on September 14, 1990. The Board also provided Holland, on September 24, 1990, with four reasons for his discharge, all based on violations of the standards of conduct listed in the personnel manual. See Va. Dept. of Social Servs. Personnel Manual, Volume IA, Ch. C, at 81.¹⁹  Clearly, Holland's dismissal was supported by a past performance evaluation and application of the standards of conduct, as required by the Virginia Department of Social Services personnel manual.

Finally, the personnel manual permits the Board to terminate an employee immediately if it believes that "the employee's continued presence may be a substantial threat to the welfare of the agency or fellow employees." See id., Ch. D, at 52. The Board stated specifically in the September 24, 1990 letter it sent to Holland that it was proceeding under this provision, not the provision requiring fifteen days notice. When an employee is terminated effective immediately, the personnel manual requires that the employee be

informed of the reasons for such suspension or removal as soon as possible thereafter and shall then be given a reasonable opportunity to respond. A written notice confirming the cause and nature of the suspension or removal actions shall be provided to the employee either before or promptly following such actions.

Id. It is undisputed that the Board provided Holland with a written notice confirming the reasons for his dismissal. Moreover, in the letter, the Board gave Holland a reasonable time to respond. He chose, instead, to file a grievance pursuant to the provisions of the merit system plan. Accordingly, it is clear that the Board followed the provisions of the merit system plan.

In Detweiler v. Commonwealth Dept. of Rehabilitative Servs., 705 F.2d 557 (4th Cir. 1983), this court, relying on the Supreme Court's opinion in Arnett v. Kennedy, 416 U.S. 134, 170, 94 S. Ct. 1633, 1652, 40 L. Ed. 2d 15 (1974), held that Virginia's grievance procedures, although they did not provide for a formal pretermination hearing, satisfied due process. 705 F.2d at 560. We stated there:

Detweiler's claim that he was entitled to a pretermination hearing has been foreclosed by Arnett. There a majority of the Court ... held that a postdischarge hearing suffices. Here, as in Arnett, the hearing panel is authorized to order reinstatement with back pay and benefits if it feels that the discharge was unjustified. Accordingly, the Virginia grievance procedure afforded Detweiler due process by assuring him a postdischarge hearing with an adequate remedy.

Id. (citation omitted); see Layne v. Campbell County Dep't. of Social Servs., 939 F.2d 217 (4th Cir. 1991) (employee provided notice and immediately discharged under the same section involved sub judice) .

Subsequently, in Loudermill, the Supreme Court held that " [t]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." 470 U.S. at 546, 105 S. Ct. at 1495 (emphasis added). Thus, Loudermill modified this court's holding in Detweiler by requiring an opportunity for some kind of a hearing prior to discharge. See Linton v. Frederick County Bd. of Comm'rs, 964 F.2d 1436, 1439 (4th Cir. 1992); Buschi, 775 F.2d at 1255. As this court noted in Linton, " [w]hen posttermination administrative procedures are afforded, such pretermination procedure functions only as 'an initial check against mistaken decisions--essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.' " 964 F.2d at 1439 (quoting Loudermill, 470 U.S. at 545-46, 105 S. Ct. at 1495). Such a hearing "need not be elaborate" and "need not definitively resolve the propriety of the discharge." Buschi, 775 F.2d at 1255 (phone call offering an interview sufficient even though not accepted by employees). Therefore, a pretermination opportunity to respond, coupled with posttermination administrative procedures provides "all the process that is due." Loudermill, 470 U.S. at 547-48, 105 S. Ct. at 1496. To require more "would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee." Id. at 546, 105 S. Ct. at 1495.

As discussed above, the Board provided Holland with the reasons for its decision to terminate him and, prior to his second discharge, gave him an opportunity to respond. The fact that Holland did not receive a formal evidentiary hearing prior to the September 24, 1990 discharge does not create a due process violation. The Board complied fully with the Supreme Court's mandate in Loudermill, giving Holland notice and an opportunity to present his side of the story before he was terminated on September 24, 1990. See, e.g., Linton, 964 F.2d at 1439-40.

Moreover, the Board's September 24, 1990 termination of Holland complied with the provisions of the Virginia Department of Social Services personnel manual and the Virginia grievance procedures. Those procedures supply notice together with a posttermination administrative hearing. Those procedures, coupled with a pretermination opportunity to respond, provide the employee with procedural due process. Loudermill, 470 U.S. at 546, 105 S. Ct. at 1495; Detweiler, 705 F.2d at 560. Because the Board, in dismissing Holland on September 24, 1990, provided him with a pretermination opportunity to respond and complied with the Virginia grievance procedures, giving him notice and a posttermination hearing, Holland received all the process which he was constitutionally due.²⁰  As a result of the application of Virginia's procedures, Holland actually prevailed and was reinstated to his position.

Based on the foregoing discussion, we conclude that the district court did not err in granting appellees' motion for summary judgment. Accordingly, the decision below is AFFIRMED. However, the case is REMANDED to the district court for a determination of whether to exercise pendent jurisdiction over appellant's state law claims.

AFFIRMED AND REMANDED IN PART