Martha L. PIKE; Cynthia J. Kincer, Plaintiffs-Appellees, v. Kermit L. OSBORNE, individually and in his capacity as Sheriff of Wythe County, Virginia, Defendant-Appellant, 35 F. App'x 70

OPINION NIEMEYER, Circuit Judge. Cynthia J. Kineer and Martha L. Pike, former employees of the Wythe County (Virginia) Sheriffs Office, commenced this action under 42 U.S.C. § 1983 against Wythe County Sheriff Kermit L. Osborne, alleging that he failed to reappoint them because they supported his opponent in a recent election and therefore that he violated their First Amendment right not to be retaliated against based on their speech. The district court denied Sheriff Osborne’s claim of qualified immunity, and he appealed. For the reasons that follow, we reverse the district court’s denial of qualified immunity.

I Both plaintiffs in this case were dispatchers for the Wythe County Sheriffs Department, a department in which dispatchers were privy to confidential information, particularly about ongoing investigations. Cynthia Kineer was hired by former Sheriff Wayne Pike in 1992 as a part-time secretary and later was promoted to the position of dispatcher. Martha Pike was hired as a dispatcher in 1996, also by Sheriff Pike whom she later married. In June 1998, Sheriff Wayne Pike resigned his position as sheriff to take a job with the Virginia Parole Board, and Kermit Osborne was appointed to complete his unfinished term.

The following year, Osborne announced his intention to seek the Republican party’s nomination for sheriff for the November 1999 general election. Wayne Pike’s son also sought that nomination, and his campaign was supported by both Martha Pike and Cynthia Kineer. After Osborne won the Republican party nomination, Wayne Pike resigned his position with the Virginia Parole Board and ran as an independent against Osborne in the general election. Martha Pike and Cynthia Kincer openly supported Wayne Pike’s campaign, and Osborne was aware of their support for his opponent.

Osborne, however, defeated Wayne Pike in the general election. During the month following his election, Sheriff Osborne notified the plaintiffs that they would not be reappointed when their terms expired on December 31, 1999. According to Sheriff Osborne, the plaintiffs were not rehired because of confidentiality concerns. He claimed that several months earlier, information had leaked from the dispatchers’ office about a murder investigation, and Wayne Pike had made comments on the local radio station, “disclosing things that [were] in an investigative stage” and therefore confidential.

Sheriff Osborne admits, however, that both plaintiffs had always received satisfactory or better job reviews. After Kincer and Pike commenced this action under 42 U.S.C. § 1983 for compensatory and punitive damages, Osborne filed a motion for

summary judgment. The district court granted Osborne’s motion to dismiss the claims made against him in his official capacity but denied his motion, based on qualified immunity, to dismiss the claims made against him in his individual capacity. Osborne appealed, claiming that he is entitled to qualified immunity either because the plaintiffs failed to allege a constitutional violation or because the law in this area was not clearly established at the time of the alleged violation.

II To resolve the qualified immunity issue in this case, we first determine whether the facts alleged, taken in the light most favorable to the plaintiffs, demonstrate that Sheriff Osborne violated a constitutional right of the plaintiffs. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If we determine that the plaintiffs have alleged a violation of a constitutional right, we then determine whether the contours of the right were clearly established such that “a reasonable official would understand that what he [was] doing violate [d] that right.” Anderson v.

Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Sheriff Osborne contends that the plaintiffs faded to show that they were not rehired because of their support for Wayne Pike’s campaign and therefore that they have failed to allege a violation of their First Amendment rights. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (holding that the plaintiff has the initial burden of showing that his conduct was constitutionally protected and that the conduct was a “substantial factor” or a “motivating factor” in the firing decision).

In this case, the evidence on which the plaintiffs relied to establish the necessary causal relationship is thin and circumstantial. It requires drawing an inference of retaliation from the timing of Osborne’s actions after the election and the fact that these two women, allegedly the only employees who openly supported Wayne Pike’s campaign, were the only employees who were not reappointed.

Although the plaintiffs’ evidence is sparse, because we must take the evidence in the light most favorable to them, we will assume that they have made a sufficient showing on this first hurdle in the qualified immunity analysis. With that assumption, we proceed to determine whether the law regarding retaliatory employment decisions was clearly established such that Sheriff Osborne should have known that refusing to reappoint the plaintiffs would violate their constitutional rights.

In determining whether a retaliatory employment decision violates the First Amendment, we balance “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting efficiency of the public services it performs through its employees.” Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) (quoting Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick v. Meyers, 461 U.S. 138, 139, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)).

We have recognized that in these cases “only infrequently will it be ‘clearly established’ that a public employee’s speech on a matter of public concern is constitutionally protected, because the relevant inquiry requires a ‘particularized balancing’ that is subtle, yet difficult to apply, and not yet well defined.” DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir.1995); see also McVey v. Stacy, 157 F.3d 271, 277 (4th Cir.1998).

Given this “difficult-to-apply” balancing test, we cannot conclude that in this case a First Amendment violation was so clearly established that a reasonable official in Sheriff Osborne’s position would know, without having to engage in guesswork, that the plaintiffs’ interest in commenting on an issue of public concern out-weighed the sheriffs interest in maintaining a loyal and efficient sheriffs department. Because the law in this area was not clearly established at the time the plaintiffs were not reappointed, Sheriff Osborne is entitled to qualified immunity.

For the foregoing reasons, we reverse the order of the district court denying Sheriff Osborne qualified immunity and remand with instructions to dismiss the complaint against him. REVERSED AND REMANDED WITH INSTRUCTIONS.