UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD I. CARRINGTON,
Plaintiff-Appellant,

v.

JAMES B. HUNT, JR., in his capacity
as Governor of North Carolina and
                                                                 No. 95-3117
individually; ANN Q. DUNCAN, in her
capacity as Chairman of the
Employment Security Commission
of North Carolina and individually,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, District Judge.
(CA-94-324-5-BR2)

Argued: October 30, 1996

Decided: January 3, 1997

Before HALL and ERVIN, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Charles Hunter, Greensboro, North Carolina, for
Appellant. Tiare Bowe Smiley, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees. ON BRIEF: James R. Trotter, Greensboro,
North Carolina, for Appellant. Michael F. Easley, North Carolina
Attorney General, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina; T. S. Whitaker, Chief Counsel, V.
Henry Gransee, Jr., Deputy Chief Counsel, EMPLOYMENT
SECURITY COMMISSION OF NORTH CAROLINA, Raleigh,
North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Donald Carrington appeals a judgment for the defendants, North
Carolina's governor and a department chairman, in Carrington's suit
alleging due process and First Amendment violations arising from the
termination of his public employment. Finding no error, we affirm.

I.

Carrington was formerly the Deputy Director of a division of the
North Carolina Department of Employment Security. In 1992, Jim
Hunt was elected Governor. The next spring, as required by N.C.
Gen. Stat. § 126-5(d)(3), Hunt designated which policymaking posi-
tions in state government would be exempt from the job security pro-
tections of the State Personnel Act. The list Hunt submitted on April
29, 1993, designated Carrington's position as exempt. Carrington had
not had such a designation under the prior administration; overall,
however, Hunt designated fewer positions as exempt than his pre-
decessor. On May 4, 1993, Carrington acknowledged receipt of a
notice of the change, to be effective in ten days.

Meanwhile, there was public debate about a plan to cut unemploy-
ment insurance premiums. Because the state unemployment fund was

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laden with cash, Hunt and the chairman of Carrington's department,
defendant Ann Duncan, were proposing a substantial cut. Carrington
favored an even deeper cut, and was apparently somewhat piqued at
being left off of the committee studying the idea.

Carrington spoke to a reporter for a local weekly newspaper. The
reporter published remarks from an unnamed source within the
Employment Security Department that were critical of the administra-
tion's plan and that advocated a deep cut in premiums. When the
remarks were brought to Duncan's attention, she was upset that her
efforts were being undermined from within. She asked a subordinate
to remind staff about unauthorized statements to the press. She
directed a friend of Carrington, his immediate supervisor Gregory
Sampson, to ask him whether he was the source of the remarks. Car-
rington denied it, and Duncan made no further effort to investigate.

The following summer, the state implemented the recommenda-
tions of a Governmental Performance Audit, which had been per-
formed by Peat Marwick at the direction of the legislature. The
purpose of the audit was to eliminate duplicative or otherwise unnec-
essary positions. The audit concluded that Carrington's division did
not need both a director (Sampson) and deputy director (Carrington).
Carrington's position was eliminated, as were all other Employment
Security jobs named in the audit. He soon filed this suit against Hunt
and Duncan, alleging due process and First Amendment violations,
and seeking damages and equitable relief.

Summary judgment for the defendants was eventually granted on
all claims except a claim for injunctive relief based on an alleged First
Amendment violation. After a bench trial, the district court ruled for
the defendants on this claim as well.

Carrington appeals.

II.

Carrington first asserts that his change from non-exempt to exempt
status violated due process. We disagree.

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As we recently explained in a quite similar case, Mandel v. Allen,

(4th Cir. 1996), a state employee has no property interest
in continued non-exempt status if state law gives the executive discre-
tion to determine which positions are exempt and to change such des-
ignations. Inasmuch as state law defines any property interest, the
employee is stuck with the interest that the legislature defined. North
Carolina law allows a newly elected governor to designate exempt
policymaking positions by May 1 of his first year. Accordingly, no
policymaking employee has a property right not to be so designated.
Mandel is dispositive.

Even if there were a property interest here, North Carolina law pro-
vides sufficient process to guard against its erroneous deprivation.
The affected employee is entitled to ten working days' notice before
the change in status, N.C. Gen. Stat. § 126-5(g), and he may appeal
to the State Personnel Office if he believes that the designation is ille-
gal or in error. § 126-5(h). Carrington received his ten days' notice
and did nothing. He has also been offered another position in Employ-
ment Security, because state law grants him preferential rehire rights,
§ 126-5(e), but he declined it.

The district court correctly granted summary judgment on Carring-
ton's due process claim.

III.

We next turn to the First Amendment claim.1 Carrington first chal-
lenges the district court's entry of a summary judgment in favor of
defendant Duncan as to any claim for money damages. 2 This judg-
ment was based on qualified immunity. In general, a public official
performing discretionary functions is entitled to qualified immunity
from liability for damages unless his actions violate clearly estab-
lished law of which a reasonable person should have known. Harlow
v. Fitzgerald, 

, 818 (1982).
_________________________________________________________________
1 This claim was pled only against defendant Duncan.

2 The district court doubted that Carrington had even pled such a claim,
but it assumed he had for purposes of argument.

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The law is certainly not "clearly established" that a policymaking
public employee may not be discharged for criticizing his superiors
or their policies. Indeed, the Supreme Court has strongly implied just
the opposite, albeit in dicta:

          [I]n weighing the State's interest in discharging an
          employee based on any claim that the content of a statement
          made by the employee somehow undermines the mission of
          the public employer, some attention must be paid to the
          responsibilities of the employee within the agency. The bur-
          den of caution employees bear with respect to the words
          they speak will vary with the extent of authority and public
          accountability the employee's role entails. Where, as here,
          an employee serves no confidential, policymaking, or public
          contact role, the danger to the agency's successful function-
          ing from that employee's private speech is minimal.

Rankin v. McPherson, 

, 390-391 (1987). More recently,
a plurality of the Court stated the point clearly, again in dicta, but
dicta most emphatic:

          [T]hough a private person is perfectly free to uninhibitedly
          and robustly criticize a state governor's legislative program,
          we have never suggested that the Constitution bars the gov-
          ernor from firing a high-ranking deputy for doing the same
          thing.

          * * *

           [T]he extra power the government has in this area comes
          from the nature of the government's mission as employer.
          Government agencies are charged by law with doing partic-
          ular tasks. Agencies hire employees to help do those tasks
          as effectively and efficiently as possible. When someone
          who is paid a salary so that she will contribute to an agen-
          cy's effective operation begins to do or say things that
          detract from the agency's effective operation, the govern-
          ment employer must have some power to restrain her. The
          reason the governor may, in the example given above, fire
          the deputy is not that this dismissal would somehow be nar-

                    5
          rowly tailored to a compelling government interest. It is that
          the governor and the governor's staff have a job to do, and
          the governor justifiably feels that a quieter subordinate
          would allow them to do this job more effectively.

Waters v. Churchill, 

, 1886-1888 (1994) (plurality
opinion).3

Though this circuit has never faced the question squarely, the First
and Seventh Circuits have held that a confidential or policymaking
employee open to discharge on account of political affiliation is like-
wise subject to discharge for speech critical of his employer.
Rodriguez Rodriguez v. Munoz Munoz, 

, 145 (1st Cir.
1986); Warzon v. Drew, 

, 1239 (7th Cir. 1995).

We need not resolve the point authoritatively today. Even if Car-
rington's policymaking position were not in and of itself enough to
render his firing legal, Duncan would still be entitled to qualified
immunity on the First Amendment claim, for two independent rea-
sons.

First of all, if Duncan could reasonably have believed that Carring-
ton's criticism of the tax cut plan would disrupt the functioning of her
office, she should not be liable in damages (though Carrington might
theoretically be entitled to reinstatement). Monetary liability does not
attach to "bad guesses in gray areas," but rather only to violations of
"bright lines." Maciarello v. Sumner, 

(4th Cir. 1992),
cert. denied, 

(1993). Bright lines are difficult to find
in the First Amendment/public employee context:

            Indeed, only infrequently will it be "clearly established"
           that a public employee's speech on a matter of public con-
           cern is constitutionally protected, because the relevant
           inquiry requires a "particularized balancing" that is subtle,
           difficult to apply, and not yet well-defined.
_________________________________________________________________
3 Though Justice O'Connor's plurality opinion was joined by only three
other justices, the concurring and dissenting opinions provided majority
support for each of its conclusions of law. Thus, it states the holding of
the Court. See 

J., concurring).

                    6
DiMeglio v. Haines, 

, 806 (4th Cir. 1995). See also
Connick v. Myers, 

, 154 (1983) (deeming it "[n]either
appropriate [n]or feasible to attempt to lay down a general standard
against which all statements may be judged"). As we noted above, it
is a most doubtful proposition that a public official of Carrington's
high rank enjoys very much, if any, First Amendment protection for
speech directly critical of his employer's policies. That doubt -- that
"gray area" -- protects Duncan from liability.

Second, Duncan did not know that Carrington had made the state-
ment until this lawsuit was filed. She knew only that it was someone
in her department. There is simply no causal link between the state-
ment and Carrington's discharge.

IV.

Carrington's First Amendment claim did survive summary judg-
ment insofar as he sought prospective relief. However, after a bench
trial, the district court held that Carrington was not entitled to rein-
statement because he had not proved causation and, in any event, the
speech was sufficiently disruptive to outweigh his interest as a private
citizen to comment on matters of public concern. These rulings are
not clearly erroneous.

The judgment of the district court is affirmed.

AFFIRMED

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