Opinion
Case No. 3:00CV00047.
December 6, 2001.
REPORT AND RECOMMENDATION
This action is before the undersigned under the authority of 28 U.S.C. § 636 (b)(1)(B) to render to the presiding District Judge a report setting forth findings, conclusions and recommendations for the disposition of the parties' cross motions for summary judgment. The parties appeared before the undersigned and presented oral argument on November 2, 2001. For the reasons that follow, the undersigned will recommend that the presiding District Judge GRANT defendant Cynthia Favret's motion for summary judgment, GRANT, in part, and DENY, in part, plaintiffs motion for summary judgment, and GRANT, in part, and DENY, in part, all other defendants' motions for summary judgment.
BACKGROUND
This is the second time the case has been before the court on dispositive motions. At this juncture, only two claims remain, namely plaintiffs first amendment claim, brought under 42 U.S.C. § 1983 against all of the defendants, and his supplemental state law fraud claim against all of the defendants except Dr. Cynthia Favret and the County of Albemarle. The relevant facts, however, are rather extensive, though there are few genuine issues of material fact in dispute.
Plaintiffs claim under the Virginia Privacy Protection Act was dismissed against Dr. Favret, and since then, he has elected not to pursue it against the remaining defendants. His fraud claim never was advanced against Dr. Favret, only against the other named defendants. The presiding District Judge found a jurisdictional bar under Va. Code Ann. § 15.2-1248 and dismissed this claim against the County without prejudice. See Mansoor v. County of Albemarle, 124 F. Supp.2d 367, 381 (W.D. Va. 2000). Plaintiff has not attempted to reassert it in any form against the County since that decision issued but it has remained as against the other defendants.
Plaintiff has been employed as a police officer with the County of Albemarle, Virginia ("County") since 1994. For the first few years, plaintiff received above average reviews and conducted himself in an unobjectionable manner. In 1997, plaintiff spoke out at a County Board of Supervisors meeting on the issue of police pay. During his public comments, he made a direct inquiry to County Executive Robert Tucker ("Tucker") seeking to ascertain which specific police officers Mr. Tucker had labeled "poor performers" in an interview published in a local newspaper article. Mr. Tucker took umbrage with this public question, on the basis that the quoted remark never referred to any police officer as a poor performer. He wrote plaintiff a letter of admonition on this basis.
There is evidence in the current record that would strongly suggest that the term "poor performers" which appeared in the Tucker quote actually referred to County employees in general, and not specifically to police officers.
Soon after this incident, security personnel at a local shopping mall where plaintiff had been working overtime as a security officer requested that plaintiff cease working there, but the mall personnel later withdrew this request. Plaintiff believed the request was linked to his comments at the Board of Supervisors meeting. Despite the withdrawal of the request, and because he suspected that the mall's action was part of a retaliatory backlash against his comments, plaintiff declined to return to the part-time security job at the mall.
In early 1998, plaintiff began experiencing panic attacks and eventually was diagnosed with panic disorder related to the stress of his job, particularly stress arising out of the above incidents. Plaintiff sought and was granted 40 days of sick leave in his effort to recover.
Upon his return, plaintiff presented Police Chief John Miller ("Miller") with a letter dated April 20, 1998, listing the problems plaintiff had with the administration of the department, both generally and with respect to his own specific circumstances. (Defs'. Ex. 4). Plaintiff claimed that these incidents, which included the Board of Supervisors meeting and the shopping mall situations, were examples of harassment and essentially constituted the stress leading to his panic disorder. In the letter, plaintiff requested that Chief Miller investigate the shopping mall incident, protect him from any further backlash and intimidation related to his public comments, and also investigate several incidents of sexual harassment plaintiff alleged he had endured at the hands of a female supervisor. The letter also alleged that a Sergeant in the police department had harassed and assaulted plaintiff by throwing a punch at his face. Finally, the letter strongly criticized a new department policy that prevented police officers from engaging in high speed response and pursuit, and in it, plaintiff informed Chief Miller that he would hold the chief personally responsible for citizen or officer injury resulting from any delayed response time fostered under the new policy.
On the heels of this letter, in June 1998 plaintiff sought reimbursement from the department for his missed days and counseling costs. On June 25, 1998, Chief Miller wrote plaintiffs treating psychologist, Brian Hocking, Ph.D. ("Dr. Hocking"), to inquire whether plaintiffs panic condition was related to his employment. Chief Miller stated in his letter to Dr. Hocking that he also needed additional information to confirm whether plaintiff continued to be fit for duty as a police officer. There is little or no dispute that Miller was disturbed by plaintiffs April 20 letter and believed it to be an indication that plaintiff had not recovered fully from his disorder. (Defs.' Ex. 9).
Before Dr. Hocking responded to this request, on July 13 plaintiff filed three separate "Performance Complaint Forms" against Chief Miller. (Defs.' Ex. 11). Each of them accused Miller of failing to perform his duties by not initiating investigations based on the allegations set forth in plaintiffs April 20 letter. Two of the complaints specifically referenced the shopping mall incident and the events surrounding plaintiffs comments at the Board of Supervisors meeting.
Meanwhile, on July 15 Chief Miller received Dr. Hocking's response. Dr. Hocking stated that he believed plaintiffs condition was related to his employment, but the answer was not completely "clear cut." (Defs.' Ex. 10). He also stated that plaintiff continued to be "fit for duty as a police officer." Id. However, Miller was not convinced by Hocking's letter that plaintiff was fit for duty, and, therefore, he decided to seek a second opinion. He chose Cynthia Favret, Ph.D. ("Dr. Favret"), to perform an evaluation and asked Richard D. Rhoads, Captain of the force, to meet with Dr. Favret and "give her all the background" on the situation. Chief Miller asked Captain Rhoads to schedule an appointment for plaintiff to see her once Dr. Favret had "a handle on the issues." Id.
Plaintiff agreed to submit to the evaluation. He knew at the time that Miller wanted the evaluation to take place, at least in part, because he was concerned about plaintiffs continuing fitness for duty. For example, in a July 17, 1998 e-mail to Chief Miller, plaintiff asked why his performance was being questioned, since Dr. Hocking said he was fit for duty and there had been no complaints about his performance. (Pl.'s Ex. LL). In addition, he signed an examination consent form acknowledging that Dr. Favret would evaluate him to determine his "psychological status as it pertains to my ability to discharge my duties in the capacity of Police Officer . . ." (Defs.' Ex. 13). Dr. Favret conducted the evaluation in early August 1998.
At roughly this same time, Miller received a note from an Albemarle County resident commending plaintiff for his professional response to a burglary alarm at the resident's home. (Pl.'s Ex. FF). According to the resident, plaintiff was very professional, thoroughly searched the home, and in all respects conducted himself as a model police officer. Chief Miller responded to the resident in writing, thanking him for the note and implicitly praising the work of plaintiff. Id.
Later that same month, plaintiff renewed his request for a resolution of the matters addressed in his April 20, 1998 letter. On August 31, he sent an e-mail to Rhoads inquiring about the status of the investigation purportedly being conducted by a Lieutenant Newton into plaintiffs complaints. (Defs.' Ex. 14)
On September 14, 1998, Tucker, the County Executive, responded to plaintiffs July 13 complaints against Chief Miller. (Defs.' Ex. 15). Mr. Tucker stated that he believed the complaints centered on internal police department policies and, thus, were not suitable for action by the County. No further action was taken at that level.
Four days later, on September 18, plaintiff sent a long and detailed e-mail to Chief Miller, which he copied to the County Board of Supervisors, and in which he criticized Miller's handling of the department. (Defs. Ex. 17). Plaintiff essentially questioned Chief Miller's commitment to the safety and well-being of police employees and provided several anecdotes that plaintiff believed supported this conclusion. He also sought release of a report from an outside consultant who examined the state of the police department at the County's request. In addition, plaintiff sent an email to every member of the police department informing them that he had submitted a list of concerns to Chief Miller and would provide a copy of the email to any interested parties. (Defs.' Ex. 18).
On October 9, 1998, Dr. Favret sent her report to the department. (Defs.' Ex. 20). Her first recommendation was that the department work to repair the rift in the relationship between plaintiff and Mr. Tucker that had resulted from the 1997 Board of Supervisors meeting. Dr. Favret opined that if this relationship had not been permitted to sour, the entire situation could have been avoided. She further opined that if the relationship could not be repaired, plaintiffs ability to continue to function as an effective officer would be severely impaired. In addition, Dr. Favret noted that her evaluation of plaintiff was not complete because he had failed to perform completely on at least one of the tests she administered, apparently neglecting to answer many of the questions.
The undersigned notes that there are two versions of Dr. Favret's October 9 report. The one cited above suggests repairing the rift between plaintiff and Mr. Tucker, while the other merely suggests independent mediation to deal with plaintiffs general problems with the department. (Pl.'s Ex. F). Chief Miller apparently chose to ignore both recommendations.
On October 14, 1998, plaintiff once again communicated by e-mail with Chief Miller, this time sending a copy of it to the entire police department. (Defs.' Ex. 21). His basic complaint was a directive issued on October 10, 1998 stating that use of department vehicles was a "privilege." not a "benefit," and thus could be revoked at any time. According to plaintiff, officers were told that being able to take home a police unit was a benefit and, as such, helped supplement their salaries. According to plaintiff, the department's shift in policy after officers accepted jobs with the County based on this understanding created a double standard. Chief Miller forwarded the e-mail to the co-defendants in this case, Mr. Tucker, Rick Huff, Larry Davis and Mark Trank, with the tag line, "the beat goes on!!" Id.
On October 18, 1998, plaintiff sent another e-mail to Chief Miller, with a copy to the County Board of Supervisors. (Defs.' Ex. 22). In it plaintiff sought an answer to whether he would be reimbursed for his leave and medical expenses related to his panic disorder, since plaintiff had seen Dr. Favret as requested. He also advised the Chief that his comments had been affirmed by many people in the police department and in the local community, and, as a result, he sought an answer to when the Chief would address the issues. Finally, plaintiff asked Miller for a plan to follow up on his July 13 complaints, since Mr. Tucker and the County had referred them back to the police department.
On October 20, 1998, Miller finally responded to plaintiff by informing him that immediately he was being placed on administrative leave with pay. (Defs.' Ex. 23). Miller based his action on Dr. Favret's report, which he interpreted as revealing that plaintiff was unable to function effectively as a police officer and otherwise conduct himself appropriately as a member of the police department. Miller did not reference Dr. Favret's recommendation that the department first work to repair the relationship between Mr. Tucker and plaintiff. Instead, Miller pointed to plaintiffs e-mails of September 18, October 14 and October 18 as evidence of plaintiffs inability to function properly within the department. Miller further informed plaintiff that, in order to return to duty, he would be required to undergo medical/psychological treatment to deal with his "impaired judgment," undergo a follow-up evaluation with Dr. Favret (in which he was to comply with all test instructions), and demonstrate to the "County's satisfaction" that he was able to function effectively within the department and willing to abide by management policies and decisions. Id.
In response, plaintiff enlisted the counsel of Stephanie Blythe, an attorney in the area, to help him comply with the County's demands so that he could return to work as a police officer. He also submitted to a follow-up evaluation with Dr. Favret on November 23, 1998. Dr. Favret issued her report two days later.
The content of Favret's report and its recommendations painted plaintiff as both a model citizen and a naive buffoon. (Defs.' Ex. 28). For example, Dr. Favret noted that "[the concerns of people such as plaintiff] often center around business problems where they typically are both ambitious and conscientious, taking their responsibilities very seriously." Id. While these traits might seem desirable, Dr. Favret then stated, "[t]hese people are typically insightless (sic) concerning themselves or others. . . ." Id. She concluded the report by recommending that plaintiff be given a "specific written agreement" that "addresses the process for him to pursue his concerns." Id.
On December 23, 1998, Miller forwarded plaintiff such a written agreement in the form of a memorandum entitled "Plan of Assistance" ("Plan"). (Defs.' Ex. 29). Essentially, the Plan was a list of terms and conditions precedent to plaintiffs returning to work as a police officer. According to Miller, it was the product of, among other things, plaintiffs being "publicly critical and negative about department policy and procedures . . ." which had been "disruptive and damaging to the operations of the department." Id.
On December 30, 1998, plaintiff and his attorney, Ms. Blythe, met with Miller, Captain Rhoads and Lieutenant Newton to discuss the Plan. During that meeting, in response to a question regarding plaintiffs speech rights as a private citizen, Chief Miller told plaintiff:
"As a private citizen you have the right. Certainly, anything dealing with a departmental matter, it falls within the area of the First Amendment and what is a public concern, that area that as a private citizen or not. If you're criticizing the department and it doesn't fall within a public concern, then it looks like a personal vendetta or a criticism that's unlawful, then you don't have that right. And I think probably Stephanie [Blythe] would be best to explain that to you."
The court can quote this conversation with such accuracy because plaintiff surreptitiously recorded dozens of meetings over the pertinent period of time in which there were conversations with County officials and police department personnel. While highly unusual, even unique in this court's experience, these recordings, at least, have given the court a verbatim record of the conversations taking place during these meetings.
(Defs.' Ex. 31). At the conclusion of the meeting in which these things, among others, were said, and with the concurrence of his legal counsel, plaintiff endorsed the Plan. He was immediately restored to active duty.
Part one of the Plan is the most relevant to these proceedings. It sets forth the following requirement:
[Y]ou shall at all times refrain from any verbal or written communications to third parties, including but not limited to county employees, relating to your employment that are in any way critical or negative towards the county executive, the chief of police or other police department management or command staff, or any other county official or employee.
(Defs.' Ex. 29). On April 19, 2000 plaintiff filed suit in state court. On May 19, 2000 defendants removed the case to federal court. The presiding District Judge denied defendants' motions to dismiss on December 20, 2000 in an a published opinion that remains the law of the case and essentially frames the analysis the undersigned must now undertake regarding the parties cross motions for summary judgment.
CONTENTIONS OF THE PARTIES
1. Plaintiff
Plaintiff contends he is entitled to judgment as a matter of law on his first amendment claim, since defendants have not carried their burden of showing the prohibited speech had a necessary impact on the actual operation of the department. In addition, plaintiff claims he should be granted summary judgment on his fraud claim, since the evidence shows defendants never told him the true reason for Dr. Favret's evaluation, which plaintiff asserts was part of a larger scheme to chill the exercise of his free speech rights.
2. Albemarle County and the other County Defendants
Since the court first addressed this case on motions to dismiss, Albemarle County has been referred to as the "County" and the individual defendants who were employed by Albemarle County have been referred to as "County defendants." These County defendants include, Chief Miller, Captain Rhoads, Mr. Tucker, and County attorneys Mark Trank and Larry Davis.
The County defendants contend they are entitled to summary judgment on both the first amendment and fraud claims. As for the first amendment claim, the County defendants argue the evidence shows that plaintiff has not met the "public concern" prong of the Pickering test. In addition, the County defendants contend that even if plaintiffs speech was on matters of public concern, the police department was justified in its job action because plaintiffs insubordination disrupted the essential operations of the department.
Albemarle County initially was not included in defendant's motion for summary judgment due to an inadvertent omission. On November 5, 2001, defendants moved to include the County in their original motion for summary judgment. The undersigned will recommend the presiding District Judge GRANT this motion.
Further, County defendants contend the Plan did not affect plaintiffs first amendment rights because there is undisputed evidence from the final meeting before plaintiff returned to active duty that Chief Miller modified its express terms by telling plaintiff it did not restrict his speech as a private citizen on matters of public concern. Even if the Plan, as modified, continued to affect plaintiffs protected rights, the County defendants submit that plaintiff knowingly and voluntarily waived his rights by accepting the Plan in the presence and with the consent of his retained legal counsel.
They also reassert entitlement to judgment as a matter of law on the grounds of qualified immunity. They offer that the uncontested evidence in this case shows they had a basis to reasonably believe that the Plan did not affect plaintiffs speech as a private citizen because of the parameters set by Chief Miller in that final meeting, had a reasonable belief that plaintiff legally waived any claim related to his first amendment rights by accepting the Plan upon advice and consent of his attorney, or reasonably could have believed the Plan language did not violate the first amendment because the plaintiffs insubordination made it necessary to employ such a plan for the effective and orderly administration of the police department.
On the fraud claim, the County defendants contend that the evidence is not in dispute that plaintiff knew he was being evaluated to determine his fitness for duty and in fact admitted as much both in the signed consent before being examined by Dr. Favret and in his deposition testimony. Thus, they contend his allegations of fraud cannot be sustained as a matter of law. 3. Dr. Favret
The County defendants also challenge plaintiffs standing in this case. Judge Michael's December 20, 2000 decision on the motion to dismiss rejected this argument, and the undersigned can find no evidence to suggest anything has changed since then that would resurrect such a defense.
Dr. Favret contends there is no evidence in the record connecting her in any way with the actual content of the Plan. Since she had no role in crafting the language that purportedly violates plaintiffs first amendment rights, she argues she should be granted judgment as a matter of law on the claim that she conspired to violate plaintiffs constitutional rights.
ANALYSIS
Summary Judgment Standard
A party is entitled to summary judgment if the evidence shows that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. See Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). In order to avoid summary judgment, a nonmoving party must present sufficient evidence to support each element of the claim or defense. See id. When ruling on a motion for summary judgment, the court must assess the evidence in a light most favorable to the non-moving parties. See Myers v. Finkle, 950 F.2d 165 (4th Cir. 1991).
First Amendment Claim
To reiterate, the presiding District Judge's decision on defendants' motion to dismiss remains the law of this case and has established the standards by which the undersigned must assess the instant cross motions for summary judgment. See Mansoor v. County of Albemarle, 124 F. Supp.2d 367 (W.D. Va. 2000). In addressing plaintiffs first amendment claim, the presiding court employed the Pickering analysis, as it has been modified and applied to cases involving prior restraints. See Pickering v. Board of Ed. of Township High Sch. Dist., 391 U.S. 563 (1968); see also United States v. National Treasury Employees Union, 513 U.S. 454, 115 S. Ct. 1003 (1995) (hereinafter " NTEU"). As the District Court held, the threshold question under Pickering is whether the employee is speaking as a private citizen on a matter of public concern. The court then is required to balance the value of the speech against its impact on the actual operations of the government employer. 124 F. Supp.2d at 377. The purpose of the discovery that took place following the district court's denial of the defendants' motion to dismiss was primarily to ascertain facts relevant to the balancing inquiry.
1. Matters of Public Concern
Judge Michael undeniably held that because the language of the Plan was written in such broad terms, it "necessarily includes matters upon which the plaintiff would speak in his capacity as a private citizen. . . ." Mansoor, 124 F. Supp.2d at 376. Irrespective of whether evidence has been produced that might affect any attempt to interpret the Plan, nothing in the course of discovery in this case would have been able to change the precise words actually written in the Plan. To that extent, the written document, on its face, remains as vast and "over inclusive" as it was at the time the case was filed, as well as at the time the presiding court rendered his decision on the motions to dismiss.
As the presiding Judge also has noted, plaintiff alleged that he had ceased speaking out about any number of issues as the result of the Plan's implementation, and the evidence adduced at discovery is not inconsistent with those allegations. In this respect, therefore, Judge Michael's observations remain as applicable to the case in its current posture as they were in its posture on the motions to dismiss, namely: "Given the breadth of the restraint, the plaintiff did not and does not remain free to speak as a private citizen about any of these matters [of public concern] . . . if he wishes to return to his job and retain it." Id. (emphasis in the original).
Defendants, nevertheless, contend that the evidence shows on December 30, 1998, before plaintiff endorsed the Plan and was reinstated to active duty, Chief Miller told him in the presence of counsel that neither the County nor the County defendants ever intended to impact plaintiffs speech as a private citizen on matters of public concern. Thus, it will be necessary to examine the content of the statement then its context in relation to the entire conversation in order to determine whether, as a matter of law, the written Plan was modified to the point of ameliorating the over breadth of the prior restraint.
Defendants focus on the following statement by Chief Miller:
"Certainly, anything dealing with a departmental matter, it falls within the area of the first amendment and what is a public concern, that area that as a private citizen or not (sic). If you're criticizing the department and it doesn't fall within a public concern, then it looks like a personal vendetta or a criticism that's unlawful, then you don't have that right. And I think probably Stephanie [Blythe] would be best to explain that to you."
While this statement certainly sounds pleasant and cordial in the context of the reinstatement meeting, in the view of the undersigned, it is little more than a masterpiece of deconstruction which fails to further any understanding of the Plan beyond its terms. When closely inspected, the statement contains facial self-contradictions, marks no prospective safe boundaries to plaintiffs speech activities, and, in the end, requires that plaintiff seek advice of his counsel on all matters relating to the defendants' intent in drafting the Plan virtually every time plaintiff wishes to exercise his speech rights.
The undersigned recognizes that Chief Miller's statement could be read, or heard for that matter, to infer that any speech dealing with a departmental matter would fall into an area of public concern, and thus be protected. That would mean all of plaintiffs comments about the department could be protected, and he would be free to make them. However, such an interpretation does not square with the historical context of the relationship between the parties nor does it comport with the further provisions of the Plan which restrict speech, even related to departmental matters, that might to a beholder "look like" a personal criticism or vendetta. Restricting speech that "looks like unlawful criticism" offers the proverbial open interpretive door and, in the end, is no less of a prior restraint than the original Plan which has been scrutinized by the presiding District Court. In the judgment of the undersigned, this restriction falls squarely within the parameters of speech Judge Michael already has declared protected because of its significant chilling effect on private speech addressing matters of public concern.
If that were not enough, as the conversation continues, Miller seemingly, if not actually takes back with the other hand what the first hand had offered and shifts the burden back to the plaintiff by suggesting that he would just have to consult with his attorney to interpret the true meaning of the written Plan. Frankly, the undersigned cannot help but think that this law suit is the product of plaintiffs doing just that, namely consulting with counsel about the true meaning of the Plan and coming to the resolve that it violates his constitutional rights.
The point here is that, if a modification to the written Plan could be orally effectuated, and the undersigned does not suggest here that would be permissible, any modification would need to be clear, unambiguous and concise enough to articulate its true meaning. Here, the conversation between Chief Miller, the plaintiff and others on December 30, 1998 is anything but clear, unambiguous and concise. Instead, it is muddled, contradictory, and confusing such that it fails to provide an undisputed factual basis for defendants' motion for summary judgment that is premised on the notion that the Plan verbally was modified in a way that would make it constitutionally acceptable.
Moreover, the tape recording of the December 30, 1998 conversation included more than what the defendants have offered as Chief Miller's attempt to explain the Plan. In addition to what the defendants offer as statements constituting a modification of the Plan, Miller and the other supervisors in the room went further to discuss and reaffirm how crucial it was for both plaintiff and the department to reduce plaintiffs duties and responsibilities to writing so as to make the written Plan the final word, so to speak, and eliminate any disputes or miscommunications that might arise over their future relationship. Interestingly, the whole notion of providing plaintiff with clear written guidelines flowed out of Dr. Favret's general recommendation that plaintiff needed more concrete boundaries so that he could know what was expected and conform his conduct to those expectations. Simply put, in the context of the other undisputed facts in this case, only one reasonable conclusion can be drawn from listening to the entire December 30, 1998, conversation, namely that the written Plan was to be the operational guide against which plaintiffs conduct exclusively would be measured and judged by his employer.
The undersigned wishes to make clear that while Dr. Favret recommended that clearly defined boundaries would allow for plaintiff to better function in his job as a police officer by restoring clear lines of communication, there is no evidence in the record to suggest that she participated in any way in formulating the substance of the Plan presented to the plaintiff on December 30, 1998.
Frankly, the undersigned cannot listen to the entire conversation without concluding that defendants' argument here is misplaced at best, and even a bit disingenuous. At the end of the conversation, Chief Miller plainly informs the plaintiff that the Plan sets forth in "black and white" the expectations of the department concerning his future conduct. Yet today defendants argue that the document they carefully drew in order to accomplish those purposes was subject to almost immediate and certainly unilateral verbal modification reflected in the words Miller chose to employ in communicating the Plan to the plaintiff in the first instance.
In sum, on December 30, 1998, Miller chose to present the Plan to the plaintiff with the same kind of indirection and ambiguity that blurred the lines of communication between the parties and led to the difficulties between them in the first place. To put it another way, the context and content of the conversation as a whole makes clear to the undersigned that Chief Miller intended the written Plan to control the parties' future relationship. Thus, the words chosen to communicate that message could not limit the breadth of the Plan nor could they provide a concise understanding about how its interpretation and application might be narrowed so as to fall within constitutional parameters. The undersigned simply cannot recommend that the presiding court find the written Plan was modified.
2. Pickering Balancing Test A. Defendants' Burden
Once a court has determined the plaintiffs speech involves matters of public concern, the second element of the Pickering test as applied in prior restraint cases requires an assessment of whether defendants have carried their burden of demonstrating "that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's necessary impact on the actual operation of the Government." Mansoor, 124 F. Supp.2d at 377 (citations and internal quotation marks omitted). In making this determination, the court initially must consider the first amendment value of the speech involved. See Edwards v. City of Goldsboro, 178 F.3d 231, 247 (4th Cir. 1999); Berger v. Battaglia, 779 F.2d 992 (4th Cir. 1985). Then the court must analyze the "time, place and manner of the speech at issue, as well as the context in which the dispute arose." Edwards, 178 F.3d at 247. As Judge Michael recognized, in cases involving prior restraints, such as this one, the government's burden is even higher than in cases involving a single incident of retaliation. See Mansoor, 124 F. Supp.2d at 377; NTEU, 513 U.S. 454, 115 S.Ct. 1003 (1995); Milwaukee Police Ass'n v. Jones, 192 F.3d 742 (7th Cir. 1999).
The Pickering test also involves third and fourth elements. The third element requires that plaintiff establish he was adversely affected in a way chilling his first amendment rights, and the fourth requires them to establish a causal connection between the protected expression and the retaliation. See Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337 (4th Cir. 2000). It is sufficient for the third element that the public employer threatened to discharge or take disciplinary action against the plaintiff for his or her speech. See Edwards, 178 F.3d at 246. That certainly is the case here. The fourth element is not at issue here because no claim for retaliation is before the court.
The material facts of this case either are set out in the written documents referred to by both sides or the events memorialized in the recorded conversations between plaintiff and the various defendants or between plaintiff and other departmental personnel. Therefore, the ultimate question of whether "on balance the value [of the speech] outweighs any competing interest of the public employer in avoiding disruptive effects of the speech [is a question] of law, not fact," and it must be resolved by "exercising independent judgment in application of first amendment principles." Berger, 779 F.2d at 998.
In balancing the interests at stake, it is difficult for the undersigned to ignore the presiding court's determination that the language of the instant Plan was extremely broad and, by its terms, encroaches protected interests. Like an 800 pound gorilla, the breadth of the restraint looms large on the landscape and figuratively beats its chest in the face of each remaining argument advanced by defendants. In other words, the presiding District Judge already has set the first amendment value of the speech restricted by the Plan, and the undersigned need only look at the discovery evidence to determine whether there is evidence to tip the balance in defendants' favor. As already noted, discovery in this case has not altered the alleged facts upon which the presiding court made those observations regarding the breadth of the Plan's restrictions. Therefore, the undersigned is compelled to conclude that the Plan potentially restricts core first amendment speech of the highest value, thus tipping the balance significantly in plaintiffs favor on this factor.
When further looking at the context in which the speech is likely to occur, the undersigned is guided by decisional authorities like Edwards and Berger, which involved free speech claims by police officers. In each, the Court of Appeals found significant the fact that the contested speech occurred while the officer was off-duty and, thus, was less likely to impact the essential internal affairs of the police department. See id. at 248; Berger, 779 F.2d at 999. Here, while the Plan language does not specifically refer to plaintiffs off-duty speech, its breadth certainly subjects plaintiffs off-duty speech to scrutiny by his employer. Once again, the language of the Plan compels the undersigned to conclude that the balance here tips in favor of the plaintiff.
B. Insubordination and Kokkinis
There is no question the presiding District Judge suggested that insubordination could provide a basis to justify defendants' actions. See Mansoor, 124 F. Supp.2d at 377. Defendants offer that the entire tone of plaintiffs e-mail campaign suffices to demonstrate, as a matter of law, insubordination, and they rely on a recent decision by the Seventh Circuit Court of Appeals decision in Kokkinis v. Ivkovich, 185 F.3d 840 (7th Cir. 1999) to support their contention that they are entitled to summary judgment on the first amendment claim.
In Kokkinis, the plaintiff, a police officer, appeared on television in a news report about alleged sex discrimination within the police department. He wore a ski mask, and his voice was electronically altered. In the news report, he said, "[i]f [local residents] really knew what was going on, I think they would be in utter shock . . . Everybody is so afraid of the Chiefs vindictiveness. If you even dare to question any decision he makes, basically your life will be made miserable." Id. at 842. Plaintiff later revealed his identity to fellow members of the department. In response, the Chief of Police ordered the plaintiff to undergo a psychological evaluation to determine his fitness for duty as a police officer. When that evaluation concluded plaintiff was unfit due to his difficulties with authority, the Chief placed him on administrative duty in the station and refused to allow him secondary employment as a security guard because it involved carrying a firearm. Id. at 842-43.
The Kokkinis court concluded the police department was entitled to summary judgment on two grounds. First, it determined plaintiffs speech did not relate to a matter of public concern because the true point of it all was to advance the plaintiffs privately held animosity toward the Chiefs alleged vindictive conduct rather than address the issue of sex discrimination. Id. at 844. Second, it found that, even if the speech was on a matter of public concern, balancing weighed in the Chiefs favor because he had broad discretion to "remedy the disruption — both actual and potential — and the threat to departmental discipline and order caused by officer Kokkinis' speech." Id. at 846. The court found that it was not unreasonable for the Chief to perceive the plaintiffs speech as undermining his authority and ability to maintain discipline within the police department in the paramilitary context of a police department. Id. The court noted:
[A] police department has a more significant interest than the typical government employer in regulating the speech activities of its employees in order `to promote efficiency, foster loyalty and obedience to superior officers, maintain morale, and instill public confidence' . . . Because police departments function as paramilitary organizations charged with maintaining public safety and order, they are given more latitude in their decisions regarding discipline and personnel regulations than an ordinary government employer . . . [and] are entitled to `considerable judicial deference.'Id. at 845-46 (citations omitted). The court also pointed to other cases which had concluded that an employee who questioned his supervisor in front of other employees made it difficult for the employer to maintain authority and discipline within the department. Id. at 846.
This case, however, has several distinguishing factors. First, and most significantly, Kokkinis adjudicated a claim of retaliation. Here, Mansoor's claim of retaliation in violation of his first amendment rights was dismissed by the presiding District Judge because the claim was founded upon what the presiding court found to be unprotected speech before the Board of Supervisors. See Mansoor, 124 F. Supp.2d at 378. The claim as it now stands involves what has been determined to be the Plan's "over inclusive," far-reaching, prior restraint on plaintiffs speech. That determination explains to the undersigned why the presiding court further observed, under NTEU, that the government's burden (here the local government defendants' burden) is higher because the case involves prior restraints rather than "an isolated disciplinary action." 513 U.S. at 468, 115 S.Ct. at 1014. The Kokkinis court was not faced with the need to employ this higher standard because of the nature of the claim that was before it, and, therefore, the decision certainly is instructive but is not determinative of the instant case.
Without actually being aware that the case had been decided, the undersigned employed much of the Kokkinis rationale in the initial Report and Recommendation on the motions to dismiss. The undersigned essentially struck the very balance employed by the Seventh Circuit, which was not accepted on review. Defendants' reliance on Kokkinis at this juncture only serves to reassert defenses in a more concrete way that the presiding District Court already has addressed and rejected.
Second, even the Seventh Circuit measured its decision by stating, "we do not mean to imply, of course, that the . . . airing of grievances in a manner calculated to resolve the problem without jeopardizing the government function [is] never protected." 185 F.3d at 846 fn.3. Once again the 800 pound gorilla of the Plan's breadth stands before the defendants on their path to summary judgment, for the Plan's prohibitions likely could include the types of "problem-solving" grievances that even the Kokkinis court recognized must receive first amendment protection.
Judge Michael's decision, again, is significant in this respect because it essentially eschews any notion that the Plan only prohibited the types of speech in which plaintiff had previously engaged. In other words, while defendants might argue plaintiff never has engaged in nor ever would engage in "problem solving" speech as evidenced by his past letters and e-mail communications, such an argument was foreclosed when the presiding District Judge concluded that, "[g]iven the breadth of the restraint, the plaintiff did not and does not remain free to speak as a private citizen about any [matters of public concern], or about anything whatsoever that criticizes any county employee, in any form or context, if he wished to return to his job and retain it." Mansoor, 124 F. Supp. 2d at 376 (emphasis in original).
Third, the speech at issue in Kokkinis was found not to have significant first amendment value. The court there observed, "the Chiefs interest [in discipline] outweighed Mr. Kokkinis' limited interest in speaking out in the manner he did." Id. at 846 (emphasis added). Here, the presiding court has determined that the Plan could be applied in a manner that would restrain the exercise of core first amendment speech. Thus, the balancing test in this case necessarily takes on a different dimension from the one employed in Kokkinis. In the end, while Kokkinis might seem to compel a decision favorable to defendants, the breadth of the instant Plan as interpreted by the court, once more, blocks the way.
By no means, however, can it be said that the record is void of evidence from which it reasonably might be inferred that plaintiff was insolent, if not insubordinate. Often, rather than highlighting issues he thought deserved consideration by the department, his correspondence tended to degenerate into a lecture of Chief Miller about his many alleged shortcomings and management missteps. As examples, in the September 18, 1998, e-mail plaintiff sent Chief Miller and copied to the Board of Supervisors, he stated:
1. "I believe it is necessary for me to provide another example of a lack of caring for the safety and well-being of your employees. . . ."
2. "You have no problem allowing officers to be disciplined for minor insignificant incidents . . . yet you violate general orders yourself without answering to anyone."
(Defs.' Ex. 17). Plaintiff also appears to concede that, "[t]here were some times that I think I was somewhat disrespectful to the Chief. . . ." (Mansoor Dep. at 18).
Yet in assessing whether evidence of insubordination might justify defendants' actions, Judge Michael also concluded that the evidence must establish that "`the prohibited speech has a necessary impact on the actual operation' of the Department." Mansoor, 124 F. Supp.2d at 377. Clearly, this observation has its roots in NTEU, which heightened a government employer's burden in prior restraint cases to show "that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by the expressions's `necessary impact on the actual operation' of the Government." 513 U.S. at 468, 115 S.Ct. at 1014 (citing Pickering, 391 U.S. at 571, 88 S.Ct. at 1736).
Of course, this case does not involve a restraint on a "vast group of present and future employees," rather it restricted only the plaintiffs speech. It is an understatement to say that, as a result, thorny issues arise from the fact that the case straddles between the pure individual retaliation cases, as in Pickering, and those involving prior restraints against broad groups of employees, which was the situation addressed in NTEU. To put it another way, the undersigned faces a Plan already determined to be a prior restraint, but under circumstances where the Plan only applies to an individual employee. All things being equal at this juncture in the proceedings, this case could lend itself to the formulation of an analysis which accounted for both its natures, namely "an adverse action taken in response to actual speech" and a ban that "chills potential speech before it happens." NTEU, 513 U.S. at 468, 115 S.Ct. at 1014. However, the undersigned need not ponder the potential of such an analysis, because the law of the case is clear, and it instructs the application of the higher governmental burden as set forth in NTEU. 124 F. Supp.2d at 377.
Moreover, while the evidence shows that at least some of plaintiffs insolent and even insubordinate speech before the Plan went into effect did have some impact on the operation of the Albemarle County Police Department, there has not been one hint in the evidence developed on discovery after the court's denial of the motions to dismiss that it was necessary for the defendants to impose what has been found to be a broad and encompassing prior restraint against any and all speech of a critical nature relating to plaintiffs employment, as the instant Plan did.
This should not be read to suggest that, at some level, the interests of a public employer do not become so paramount that they outweigh even core first amendment speech related to an individual's employment. In the instant case, the undersigned simply reads the decision by the presiding Court as recognizing that evidence of insubordination certainly could provide a defense, and he did not foreclose defendants from producing evidence which demonstrated insubordination and its actual or likely effects on department discipline and morale beyond that which was set forth in the well-pleaded facts of the complaint. The court, then, would be in a position to determine whether the restraint at issue was properly tailored, and if so, the defendants would be entitled to judgment as a matter of law. However, other than the verbatim contents of plaintiff s e-mails, essentially nothing new has been shown in the discovery record revealing that the restriction in this case was specifically tailored to address any insubordination that was not addressed when the court decided the motions to dismiss.
C. Goldstein v. Chestnut Ridge Volunteer Fire Co .
Even viewing this case without the guidance of the presiding court's opinion, it seems to the undersigned that the case in its current posture has several features in common with a recent decision by the Fourth Circuit Court of Appeals in Goldstein v. Chestnut Ridge Volunteer Fire Company, 218 F.3d 337 (4th Cir. 2000), which essentially compel a conclusion in favor of plaintiff. In Goldstein, a firefighter was suspended for 90 days when he communicated critical comments to the Executive Committee of the fire department after he had agreed in writing first to communicate his concerns to the Captain. The court determined plaintiffs comments addressed public safety, which were both a matter of public concern and speech at the core of the first amendment. Id. at 355. The court then balanced the plaintiffs speech interests against the fire department's interests in managing its internal affairs, including "promoting efficiency and camaraderie." Id. at 354. It found the protected speech outweighed the allegations of disruption to the department's internal operation. Id. at 355. In making its finding, the court stated:
The undersigned notes that the case ultimately was decided in favor of the fire department on the fourth prong of the Pickering test, namely the causal connection between the protected expression and any retaliation.
[Finding the department's interests outweighed the speech interests] would effectively endorse a `red line of silence,' whereby fire companies, police officers and other entities carrying out crucial public functions are permitted to quash complaints affecting public safety under the general aegis of `camaraderie' and the avoidance of disruptions. We are unwilling to countenance such a blanket immunity. . . .Id. Just as in Goldstein, this case involves restrictions on speech that already has been determined to fall within the protections of the first amendment. Likewise, the defendants have offered little more than generalized allegations of disruptions caused by plaintiffs complaints. The "slender reed" upon which the presiding court determined defendants rested their assertions of insubordination bends to the breaking point at this stage of the proceedings because that reed is unsupported by any additional material facts which discharge the defendants' burden. Mansoor, 124 F. Supp.2d at 377. In reaching this conclusion, the undersigned notes that it does not appear that Judge Michael considered the actual language of the plaintiffs e-mails. See Mansoor, 124 F. Supp.2d at 371 fn. 1 Therefore, the actual content of those e-mail communications constitutes "new" or additional evidence in the strictest sense of the word. However, it equally appears to the undersigned that because the restraint was found to be so broad, and because the burden on the defendants was determined to be so high, the presiding court essentially was signaling that evidence of, as opposed to mere assertions of, disruption beyond what was contained in the four corners of plaintiffs electronic speech would be required to support the defendants' insubordination defense. The discovery before the undersigned lacks in that respect.
Defendants make much of the fact that plaintiff did not follow the "chain of command" in communicating his concerns directly to Chief Miller. Notably, the Plan does not address this concern specifically but restricts all speech critical of the department.
Last, but certainly forecast by the above observations, Goldstein did not involve application of the higher prior restraint burden under NTEU, yet it still found the balance tipped in favor of the plaintiff. The Goldstein court seemed to sum up both that case and the instant one when it stated, quoting Pickering: "[T]o the extent that the Board's position here can be taken to suggest that even comments on matters of public concern that are substantially correct . . . may furnish grounds for dismissal if they are sufficiently critical in tone, we unequivocally reject it." Id. at 356 (quoting Pickering, 391 U.S. at 570, 88 S.Ct. at 1731).
D. Summary
While, no doubt, there may be permissible restrictions a government employer can impose upon an employee which will ensure a public employer's essential operations are not disrupted by an employee's insubordinate speech, the Plan in this case contains none of them. As interpreted by the presiding court, the Plan simply is too broad, and the "slender reed" defense of insubordination breaks for the lack of evidence sufficient to demonstrate that such a broad restriction was "necessary" to address plaintiffs alleged insubordinate comments. As Judge Michael prophetically suggested might be the case, "the defendants' efforts to address [plaintiffs] insubordination simply went too far." Mansoor, 124 F. Supp.2d at 377.
3. Waiver
Defendants also contend that even if the Plan violates plaintiffs first amendment rights, plaintiff waived any violation by knowingly, voluntarily agreeing to the Plan upon the advice and consent of his retained counsel. In support of this contention, defendants cite Lake James Community Volunteer Fire Department, Inc. v. Burke County, 149 F.3d 277 (4th Cir. 1998).
In Lake James, a volunteer fire department entered into a contractual agreement with the County whereby the department agreed not to contest petitions by local residents to transfer into other fire districts. Id. at 279. The department argued that the consent provision violated its first amendment rights and was unenforceable because it conditioned a contract with the County upon waiver of first amendment rights. Id. The court disagreed, pointing out that constitutional rights may be waived so long as the waiver is knowing, voluntary and does not undermine the public interest. Id. at 280. In reaching its conclusions, the court recognized, but declined to apply as an absolute rule, the "unconstitutional conditions" doctrine, which holds that a government may not deny jobs or benefits to a citizen on any basis that violates first amendment rights. The court determined that even "unconstitutional conditions" must be balanced against the "government's interest in promoting the efficiency of public services." Id. at 282. The court found the consent clause was necessary to protect County citizens by ensuring that the fire department did not back out of the agreement, as it had on two previous occasions, and it upheld the clause as a valid waiver of the department's constitutional rights. Id.
While defendants in this case rely on Lake James, the undersigned believes the instant case is quite distinguishable. Primarily, the Plan language in this case is much broader than the "narrowly tailored," "limited waiver" that the fire department executed in Lake James. Id. at 281. The court there found it notable that the fire department only waived its rights to a limited extent, namely by giving up the right to speak out against the citizens' requests when it "agreed to consent to the citizens' petitions." Id. Further, the court found the waiver "necessary to reestablish the Fire Department's good faith," and, thus, not adverse to public policy. Id.
The instant Plan language has been found to be far from limited in its scope, and on its face restricted plaintiffs right to speak on matters relating to his employment in perpetuity. Furthermore, as the District Court already has found, the Plan was not limited to what strictly was necessary" for the plaintiffs effective performance as a police officer, for it covered not only insubordinate speech, but also any speech relating to his employment.
As for whether or not the government's interests outweigh the unconstitutional condition imposed on plaintiff in this case, while repetitive of what has been said already, the broad restrictions on potentially core first amendment speech mandated by the Plan outweigh the amorphous and general disciplinary interests of the police department. The Supreme Court's oft stated maxim that "a public employee's employment cannot be conditioned on his not speaking as a private citizen upon matters of public concern," was woven into the fabric of this case when it was quoted by the presiding District Judge, and the undersigned does not believe the defendants have carried their burden to overcome this constitutional hurdle, as a matter of law. See 124 F. Supp.2d at 379 (citations omitted).
Accordingly, subject to a resolution of the qualified immunity defense discussed below, the undersigned RECOMMENDS that the County defendants' motion for summary judgment on plaintiffs first amendment claim be DENIED, but that plaintiffs motion for summary judgment on this claim be GRANTED.
4. Dr. Favret's Liability
Dr. Favret has moved for summary judgment on the first amendment claim against her on the ground that there is no evidence in the record showing she either participated in drafting or tacitly approved the language of the Plan. Moreover, she offers that there is not one iota of evidence that she combined, agreed, consented to or otherwise conspired to develop a plan of employment action that violated plaintiff free speech rights. The undersigned agrees.
While the discovery evidence before the court shows that Dr. Favret recommended a "written agreement" that would fix plaintiffs expectations related to his employment and, in turn, restore his fitness for service and allow him to function more effectively within the police department, there is no evidence she ever contemplated or recommended that such a written agreement impact plaintiffs free speech rights. Therefore, summary judgment on the claim against her should be GRANTED, and it is so RECOMMENDED.
Qualified Immunity
Government officials enjoy qualified immunity from liability for claims arising under 42 U.S.C. § 1983 "as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638 (1987). The shield of qualified immunity extends to such officials "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine if qualified immunity should apply in a case, the court must, "(1) identify the right allegedly violated, (2) determine whether the constitutional right violated was clearly established at the time of the incident, and (3) evaluate whether a reasonable official would have understood that the conduct at issue violated the clearly established right." Mansoor, 124 F. Supp.2d at 378.
Defendants do not focus on the first two elements of the test probably because the presiding District Judge already has resolved those elements against them in deciding the motions to dismiss. Instead, they contend that the evidence compels the court to conclude, as a matter of law, that they reasonably believed they were not violating plaintiffs rights. They offer three bases for that contention. First, they submit that Chief Miller's comments during the December 30, 1998 meeting demonstrate the absence of any intention to enforce the Plan in a way that would violate plaintiffs First Amendment rights, even if the Chiefs comments were not sufficient to verbally modify the terms of the Plan. Second, defendants argue that plaintiffs act of signing onto the Plan with the advice and consent of counsel provided a reasonable basis for the defendants to conclude that he had waived his first amendment rights, even if the court determines that he did not actually do so. Third, defendants contend they had a reasonable basis to believe the Plan language would survive court scrutiny, particularly in view of the evidence of plaintiffs previous public insubordination and the professional recommendations addressing plaintiffs emotional condition and his fitness for duty.
These arguments appear inconsistent with and mutually exclusive of other positions the defendants have taken in the case. If the County defendants truly believed that the Plan language did not restrict plaintiffs speaking as a private citizen on matters of public concern, as they now contend, then notions of waiver could not have been further from their thoughts when they presented and implemented the Plan. In other words, either these defendants did not think the Plan affected plaintiffs private speech on matters of public concern, and they are stuck with defending the case on that basis, or they considered that it might and forged ahead anyway. Likewise, if the hypothetical county officials were considering plaintiffs acceptance of the Plan as a waiver of his constitutional rights, reason and common sense tell the undersigned that the subject would have been covered in the Plan terms themselves or during the course of the conversation in which the employee was asked to sign onto a Plan like this one. There is no hint of that in the discovery evidence. Just as in the other aspects of the defendants' case, the presiding court has set the evidentiary expectation on the final element of qualified immunity, and the defendant's discovery evidence fails to meet it.
Therefore, under the circumstances presented in this case, the undersigned concludes as a matter of law that the motion for summary judgment on qualified immunity grounds should be DENIED. It is so RECOMMENDED.
Fraud
Once more, Judge Michael's prior decision set the standard plaintiff must meet to sustain his fraud claim. To show actual fraud, plaintiff must "prove a false representation, of a material fact, made intentionally and knowingly, with intent to mislead, reliance by the party misled, and resulting damage." Mansoor, 124 F. Supp.2d at 385 (citation omitted). To show constructive fraud, plaintiff must show merely that a misrepresentation of a material fact results in damage to the one relying on it, even if the misrepresentation is done innocently or negligently. Id.
Plaintiff contends the County defendants committed fraud by telling him Dr. Favret's evaluation was for the purpose of determining whether he would be reimbursed for his medical expenses, when, in fact, the evaluation was for other reasons, including those that led to restricting his first amendment rights. The discovery evidence in the case actually demonstrates that defendants expressed the purposes of the evaluations in various ways, though, when read in the context of the circumstances, all of those purposes related to plaintiffs mental status, its effects on his ability to perform work-related activities, and the medical and other claims associated with his condition and its effects. To the undersigned, Plaintiffs attempt to focus on these distinctions in how each individual expressed these purposes is little more than navel-gazing, for they essentially are without substantive difference and aid little in analyzing plaintiffs fraud case.
It seems that each supervisor in the department had his own way of describing the purpose for the evaluation. Some sought an opinion about plaintiffs "medical claims status," others about "reimbursement claims," another about plaintiffs "workers (sic) compensation claim," and yet another about plaintiffs "fitness for duty." Dr. Hocking certainly performed a fitness for duty examination, and Dr. Favret's understanding of why plaintiff was sent was identical.
In the view of the undersigned, there is no genuine issue of fact that plaintiff did not rely on defendants' statements because he was aware that his fitness for duty was at the core of it all. The release/consent form he signed in order to submit to the evaluation explicitly states that it was being performed, in part, to determine fitness for duty. (Defs.' Ex. 13). In addition, plaintiff e-mailed Chief Miller before Dr. Hocking's evaluation took place inquiring about why his fitness for duty was an issue. (Pl.'s Ex. LL). Moreover, no one disputes that Dr. Favret's evaluation was meant as a "second opinion" to that of Dr. Hocking. It stands to reason that if Dr. Hocking was asked to address plaintiffs fitness for duty, no reasonable person could believe that Dr. Favret would do less.
Moreover, there is no evidence to support the notion that any evaluation was to restrict plaintiffs free speech rights. Plaintiff contends, for example, that he never was examined directly about his ability to handle himself on the street or carry a firearm. Yet what plaintiff believes he should or should not have been examined about during the course of any of the evaluations misses the point. His notions cannot act as a virtual springboard for an inference that because the experts did not perform the evaluation according to plaintiffs expectations, then their purpose must have been about limiting his free speech rights.
In the end, the undersigned concludes as a matter of law that plaintiff cannot establish the reasonable reliance element of his fraud claim, and that defendants are entitled to summary judgment on this issue. It is so RECOMMENDED.
SUMMARY CONCLUSION
For all the reasons set forth above, the undersigned RECOMMENDS that the presiding District Judge:
1. GRANT, as unopposed, the County of Albemarle's November 5, 2001 motion to amend defendants' motion for summary judgment to include the County itself.
2. GRANT, in part, and DENY, in part, plaintiffs motion for summary judgment. Plaintiffs motion should be GRANTED and judgment should enter in favor of the plaintiff and against the County and County defendants on plaintiffs first amendment claim. The plaintiffs motion for summary judgment should be DENIED as to his fraud claim and as to his first amendment claim against Dr. Favret;
The parties have not raised any damage-related issues at this juncture. Nevertheless, a review of the discovery record for purposes of reporting on the instant motions constrains the undersigned to ponder how plaintiff will be able to quantify damages proximately resulting from the defendants' prior restraint beyond what might be considered nominal. This is so because plaintiff, as a matter of law, is not entitled to recover solely for the perceived value of the constitutional right impinged, there is no indication in the record that he suffered any economic loss, and it is a fact that the restraint was imposed concurrently with his return to full-time duty status. Those matters, of course, must await another day to resolve.
3. GRANT defendant Dr. Favret's motion for summary judgment on plaintiffs first amendment claim and dismiss her as a party to this action;
4. GRANT the County defendants' motion for summary judgment as to plaintiffs supplemental state law fraud claim but DENY the County defendants' motion for summary judgment in all other respects;
The Clerk is directed to immediately transmit the record in this case to the Hon. James H. Michael, Jr., Senior United States District Judge. Both sides are reminded that pursuant to Rule 72(b) they are entitled to note objections, if any they may have, to this Report and Recommendation within (10) days hereof. Any adjudication of fact or conclusion of law rendered herein by the undersigned not specifically objected to within the period prescribed by law may become conclusive upon the parties. Failure to file specific objections pursuant to 28 U.S.C. § 636 (b)(1)(C) as to factual recitations or findings as well as to the conclusions reached by the undersigned may be construed by any reviewing court as a waiver of such objection. The Clerk of the Court hereby is directed to send a certified copy of this Order to all counsel of record.