Filed:   June 9, 2003

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                            No. 02-1153
                           (CA-01-225-7)



Thomas S. Mills,

                                               Plaintiff - Appellant,

          versus


Charles W. Steger, etc., et al.,

                                              Defendants - Appellees.



                             O R D E R



     The court amends its opinion filed May 14, 2003, as follows:

     On page 2, second full paragraph of text, lines 1-2 -- the

phrase is corrected to read “a public radio station in Roanoke,

Virginia.”

                                         For the Court - By Direction




                                         /s/ Patricia S. Connor
                                                  Clerk
                             UNPUBLISHED

             UNITED STATES COURT OF APPEALS

                   FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
THOMAS S. MILLS,
     Plaintiff-Appellant,

     v.

CHARLES W. STEGER, in his
individual capacity; LARRY HINCKER,
in his individual capacity; RAYMOND
SMOOT, in his individual capacity;
MINNIS RIDENOUR, in his individual                       No. 02-1153
capacity,
       Defendants-Appellees,

     and

VIRGINIA POLYTECHNIC INSTITUTE AND
STATE UNIVERSITY; WILLIAM E.
LANDSIDLE, Comptroller of the
Commonwealth of Virginia,
     Defendants.
4444444444444444444444444444444444444444444444448

             Appeal from the United States District Court
           for the Western District of Virginia, at Roanoke.
                Samuel G. Wilson, Chief District Judge.
                           (CA-01-225-7)

                      Argued: January 22, 2003

                       Decided: May 14, 2003

     Before WILLIAMS and MICHAEL, Circuit Judges, and
      Morton I. GREENBERG, Senior Circuit Judge of the
      United States Court of Appeals for the Third Circuit,
                     sitting by designation.

____________________________________________________________
Affirmed by unpublished per curiam opinion.

____________________________________________________________

                             COUNSEL

ARGUED: Monica Taylor Monday, GENTRY, LOCKE, RAKES &
MOORE, Roanoke, Virginia, for Appellant. Sydney E. Rab, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL, Rich-
mond, Virginia, for Appellees. ON BRIEF: S.D. Roberts Moore,
Anthony Marc Russell, GENTRY, LOCKE, RAKES & MOORE,
Roanoke, Virginia, for Appellant.

____________________________________________________________

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

____________________________________________________________

                              OPINION

PER CURIAM:

    Thomas S. Mills appeals from a grant of summary judgment to the
Virginia Polytechnic Institute and State University and four individual
defendants on his claims that they violated his due process and First
Amendment rights. We affirm, although some of our reasoning is
slightly different than the district court's.

                                  I.

   Mills was the station manager at WVTF, a public radio station in
Roanoke, Virginia, owned by the Virginia Tech Foundation with a
broadcast area covering most of western Virginia and parts of North
Carolina and West Virginia. In that position, he was an employee of
Virginia Polytechnic Institute and State University (Virginia Tech or
the University). His employment was based on a series of annually
renewable contracts, and he was entitled to the protections of the Fac-
ulty Handbook. As station manager he had primary responsibility for
programming decisions and generally acted independently of the Uni-

                                  2
versity and the WVTF staff. Mills served in this position for nearly
twenty-four years; during that time the station substantially broadened
its audience, won national acclaim for its own programming, and
moved out of insolvency. Mills himself consistently received positive
reviews from his supervisors. He also received awards and honors
from others in public broadcasting.

    Mills's conflict with his supervisors at Virginia Tech began in
November 1999, when WVTF decided to move the Metropolitan
Opera broadcast from a prime programming slot on Saturday to Sun-
day. The Metropolitan Opera, however, refused to allow this delayed
broadcast, and WVTF (through Mills) opted to cancel the program.
Larry Hincker, Director of University Relations, initially supported
the decision to cancel. However, Raymond Smoot, the Vice President
for Administration at Virginia Tech, Minnis Ridenour, the Executive
Vice President, and Charles Steger, the President, told Hincker to
instruct Mills to resume the Saturday broadcast of the opera program.
Hincker wrote Mills a letter, dated December 16, 1999, conveying
this instruction, but saying that Hincker felt he (Hincker) had failed
the station. Mills in turn wrote a letter to Hincker objecting to the
decision; this letter was leaked to the press, and the press contacted
Mills for a reaction.

    As Mills voiced his objections to the University's reversal of his
decision to cancel the opera, his supervisors became increasingly con-
cerned about his public statements. When listeners wrote to the sta-
tion to express their views about broadcasting the opera, Mills
responded with letters claiming that his supervisors were interfering
with programming decisions. As a result of these letters, Smoot wrote
to Hincker, suggesting that Mills should be terminated. Mills also
gave statements to a reporter for the Roanoke Times about Virginia
Tech's involvement in programming decisions. After seeing the arti-
cle, Ridenour wrote to Hincker, saying that they needed to "decide
what action to take." Moreover, Mills wrote a letter to the editor of
the Roanoke Times, identifying himself as the station manager and
expressing his concerns. Finally, Mills was interviewed about the
controversy by a public radio trade publication in January 2000. In
that interview he said that he "used to think [calling fans of the Metro-
politan Opera] `Opera Nazis' was harsh. Not anymore. If anything it's
a little tame."

                                   3
    On March 3, 2000, Hincker removed Mills from his position as sta-
tion manager of WVTF. When Mills refused to resign as requested,
Hincker decided to terminate him. On March 10 Hincker wrote to
Mills, providing him with a lengthy list of the ostensible reasons for
firing him; these included poor judgment, abuse of power, and failure
to follow supervisors' directions. Mills was not, however, removed
from the payroll. On March 30, 2000, Hincker wrote to Mills, saying
that Mills was being reassigned to an AM radio station that broadcast
out of Blacksburg, Virginia. Ridenour and Smoot participated in this
decision.

    Mills objected to the reassignment because the Faculty Handbook
requires six months' notice for a transfer to a new job site that is more
than thirty-five miles from the current job site. The AM station is
forty miles from WVTF's offices. Mills's lawyer wrote to Hincker
several times to tell him that Mills would not accept the reassignment
because it violated Virginia Tech's transfer policy. On April 20, 2000,
Hincker drafted a letter to Mills, telling him that he was beginning the
dismissal process because of Mills's failure to show up at his new job;
it appears, however, that Hincker never mailed the letter. On April 24,
2000, Mills notified Virginia Tech that he intended to begin the griev-
ance process provided for in the Faculty Handbook. On the same day,
Hincker wrote to Mills, directing him to appear at a meeting on April
25, 2000, to discuss the dismissal proceedings and telling him that he
was being dismissed for his failure to report to work at the AM sta-
tion. Mills did not hear from his lawyer about the April 25 meeting
until late in the evening on April 24, and he did not receive his copy
of Hincker's letter until several days after the date scheduled for
meeting. Due to the late notice, Mills and his lawyer did not attend
the meeting. Mills then received a letter from Hincker dated April 25,
2000, telling him he had three days to send a written response to the
reasons for his dismissal. Mills responded with a nineteen-page letter.
Hincker testified that he "had already put in place the rationale and
this did not change [his] rationale." Consequently, Mills was fired on
May 2, 2000.

   Mills then began the multi-step grievance process. First, the deci-
sion was reviewed by Hincker and then by Smoot. Next, Mills's
objections were heard by a hearing panel comprised of members of
the Virginia Tech faculty. After hearing evidence, the panel decided

                                   4
that Mills's reassignment violated the Faculty Handbook procedures.
Ridenour reviewed the findings and recommendations of the hearing
panel and then made his own recommendation. Ridenour refused to
reinstate Mills as WVTF's station manager or provide him a job
within thirty-five miles of the WVTF station, but he offered to let
Mills remain on the payroll for six months, which would allow Mills
to complete twenty-five years of service at the University. The final
review of a termination is normally made by the University's presi-
dent. The president (Steger) recused himself from this review, how-
ever, and it was undertaken by James Bohland, the Interim Provost.
Bohland endorsed Ridenour's proposed solution, and Mills rejected it.

   Mills originally brought suit against the University and the individ-
ual defendants in Virginia state court, claiming violations of his due
process and First Amendment rights. The defendants removed the
case to the United States District Court for the Western District of
Virginia. Following discovery, the defendants moved for summary
judgment, which the district court granted. The district court con-
cluded that there were no violations of Mills's due process or First
Amendment rights; even if there had been a violation, the defendants
were entitled to qualified immunity, the court held. Mills appeals.

   We review the district court's grant of summary judgment de novo.
Goldstein v. Chestnut Ridge Volunteer Fire Co., 

, 340
(4th Cir. 2000). To defeat the defendants' claim to qualified immu-
nity, Mills must demonstrate that they violated one of his constitu-
tional rights, that the violation was clearly established at the time of
the event, and that a reasonable official would have known that the
conduct was a constitutional violation. See Henderson v. Simms, 

, 271 (4th Cir. 2000). We will address Mills's due process
and First Amendment claims in turn.

                                  II.

                                  A.

   To conclude that Mills's due process rights were violated, we must
find that he had a property interest in continued employment and that
Virginia Tech's procedure for the termination of his employment was
not consistent with due process. Morris v. City of Danville, 

1041, 1044 (4th Cir, 1984); see also Volk v. Coler, 

,
1430 (7th Cir. 1988). Mills was not a tenured faculty member; he
worked under an employment contract that was subject to annual
renewal. Mills therefore did not have a protected interest in remaining
at Virginia Tech past the ending date of his contract. See Perry v.
Sindermann, 

, 599 (1972). However, he might have had
a property interest in continued employment for the remainder of his
contract, that is, the period between his termination on May 2, 2000,
and the June 30 ending date for his contract. Mills's argument that he
had a property interest in continued employment at WVTF, rather
than at the Blacksburg station, is without merit. Huang v. Bd. of Gov-
ernors, 

, 1141-42 (4th Cir. 1990) (concluding that a
transfer to a different department did not affect a property right); see
also 

. Similarly, the University's initial deci-
sion to fire Mills in March did not affect a property interest because
Mills never stopped receiving his salary. See 

(noting that a plaintiff's property interest is satisfied by full compen-
sation). We will assume, therefore, that Mills did have a property
interest in continued employment for the remainder of the term of his
contract and that the University interfered with this right when it ter-
minated him on May 2, 2000. Nevertheless, we believe that the
school's termination procedures adequately protected Mills's due pro-
cess rights.

                                  B.

    Mills first claims that his pretermination hearing was inadequate.
Pretermination procedures are not required to be extensive; they are
merely "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." Cleveland Bd. of Educ. v. Loudermill, 

, 545-46
(1985). Because of the limited function that pretermination hearings
are supposed to serve, the state is only required to provide notice of
the action and give the employee an opportunity to respond. See Gray
v. Laws, 

, 438 (4th Cir. 1995). Here, the University did
both. It is clear that Mills received ample advance notification of his
termination and the reasons for it. In March Mills received a letter
from Hincker, citing eight problems with Mills's work. Moreover,
Hincker informed Mills of the specific reason for his termination —

                                   6
his refusal to work in Blacksburg — in the April 24, 2000, letter.
Mills also had, and used, an opportunity to explain his side of the
story before his termination on May 2. He sent Hincker a nineteen-
page letter on April 26, responding to the University's complaints
about his performance. This notice and response satisfy the due pro-
cess requirements for a pretermination hearing.

   Mills concedes that he had an opportunity to present his side of the
story to Hincker. He says, however, that this opportunity was a sham
because Hincker was both the initial and final decisionmaker in the
pretermination process and because Hincker said in an affidavit that
Mills's letter did not change his views. Given the limited role of a
pretermination hearing, neither of these concerns rise to the level of
a constitutional violation. The same person can be, and often is,
involved in multiple stages of the review process. See 

. Moreover, it would be unusual if an employer
reviewing an initial decision to terminate did not already have an
expectation that the employee should be terminated. See Ryan v. Ill.
Dep't of Children & Family Servs., 

, 762 (7th Cir. 1999).
Due process merely requires that the decisionmaker keep an open
mind when reviewing the employee's side of the story. Although
Hincker's mind was not changed when he read Mills's letter, there is
no suggestion that he ignored the letter altogether; rather, it is clear
that Mills's letter did not alleviate Hincker's concerns about Mills's
performance. We therefore conclude that Mills's pretermination pro-
ceedings were consistent with due process.

                                  C.

    Mills next claims that his post-termination review was constitution-
ally defective because the decisionmakers were not impartial. He cites
two reasons to support his claim of bias. He first argues that the deci-
sionmakers' review was inadequate because they had ex parte conver-
sations about his termination and viewed ex parte information about
him. He then argues that the review was biased because the same peo-
ple participated in multiple levels of the decisionmaking. Neither
complaint rises to the level of a due process violation.

   The fact that some of those involved in approving Mills's termina-
tion received ex parte communications does not by itself create a due

                                  7
process violation. See Duffield v. Charleston Area Med. Ctr., Inc.,

, 518-19 (4th Cir. 1974). Ex parte communications are
generally only due process violations when the information contained
in them is both new and material. See Stone v. FDIC, 

,
1376-77 (Fed. Cir. 1999). Although Mills claims that Hincker, Smoot,
and Ridenour had access to documents that he was unable to see at
"pertinent times" during the proceedings, Appellant's Br. at 28, none
of these individuals was the final decisionmaker. 

(finding that a decision allegedly based on ex parte commu-
nications was not a due process violation because the decision was
not final). We focus, therefore, on the ex parte communications
reviewed by Bohland, the final decisionmaker, to determine whether
anything unavailable to Mills was new and material. Mills points to
only two documents that Bohland saw to which Mills did not have
access. The first was a letter from Mills's lawyer concerning this suit.
It is hard to imagine how Mills could be surprised that Bohland saw
a letter drafted by his lawyer or how he can say that he had no oppor-
tunity to see or respond to it. The second document was a timeline
prepared by Hincker, which the parties have not provided for our
review. Mills points to no information included in the timeline that
would have had an effect on Bohland's decision. At most, we would
expect that the timeline clarified the events in the case, but it is hard
to imagine how it would have led Bohland to a different conclusion.
Nor do we believe the information in the timeline was new. All of the
relevant dates and events would have been documented in other ways
in the case file. The timeline only provided a useful summary for
Bohland of events otherwise known to Mills. Because Mills has not
established that the ex parte communications received by the final
decisionmaker were either new or material, we conclude that they did
not violate Mills's due process rights.

   We also reject Mills's claim that the participation of some of his
supervisors in more than one stage of the proceedings created a due
process violation. As noted above, the same person may participate
in more than one level of the review process. See, e.g., 

; 

. Moreover, even if
Hincker, Smoot, and Ridenour should have been excluded from later
decisionmaking, the final decision to terminate Mills was made by
Bohland, who was not involved at any earlier stage. Although he con-
sidered the views of those Mills believes were biased against him,

                                   8
Bohland also had the benefit of the views of the faculty panel, and
Mills has made no suggestion that this panel was in any way biased
against him. We therefore conclude that Mills's post-termination
review was constitutionally adequate. Because we see no constitu-
tional violations in either Mills's pre- or post-termination proceed-
ings, we turn to his First Amendment claim.

                                  III.

                                  A.

    To establish that his First Amendment rights were violated, Mills
must show that he spoke about a matter of public concern, that the
University deprived him of some valuable benefit, and that there was
a nexus between the adverse action and his protected speech. See

. Finally, he must show, as required by the
Supreme Court in Pickering v. Board of Education, 

(1968), that his interest in speech outweighs his employer's interest
in effective job performance. 

n.7.

    Mills was speaking out on a matter of public concern. One of the
critical factors in determining whether speech is on public or private
matters is whether it concerns matters of public debate or whether it
reflects merely personal pique and internal employment issues. Coo-
per v. Johnson, 

, 562 (4th Cir. 1979). The substance and
procedure of programming decisions by a public radio station that
regularly solicits direct contributions from its listeners is a matter of
public concern. See Schneider v. Indian River Comty. Coll., 

, 1542-43 (11th Cir. 1989); Aldrich v. Knab, 

,
1495-96 (W.D. Wash.), rev'd on other grounds, 

(9th
Cir. 1994) (unpublished opinion). Indeed, the record reflects a great
deal of public interest in the opera broadcast dispute, as demonstrated
by several newspaper articles and many phone calls and letters from
listeners and donors. An issue that engenders this sort of response
from listeners, donors, and the press can hardly be considered a pri-
vate matter of interest only to those within the radio station's manage-
ment. Cf., Aldrich, 

. We conclude, therefore,
that Mills spoke on a matter of public concern.

   It is equally clear that the University deprived Mills of a valuable
benefit. While his due process claim requires him to demonstrate a

                                   9
protected property interest, to bring a First Amendment claim Mills
only needs to show that he was subject to some adverse employment
action sufficient to chill his speech. See 

.
Here, his transfer to another radio station and his ultimate termination
amount to such a deprivation for First Amendment purposes. See

.
   Similarly, Mills has demonstrated a nexus between the deprivation
of a valuable benefit and his speech. The timing of Hincker's initial
decision to terminate him and then to transfer him to Blacksburg —
just a few months after Mills began speaking out — is circumstantial
evidence of the connection. Cf. Pike v. Osborne, 

, 185
(4th Cir. 2002); Carter v. Ball, 

, 460 (4th Cir. 1994). But
Mills also has direct evidence linking these actions to his speech.
Smoot, for example, sent a note to Hincker in reaction to one of
Mills's letters, explaining that he "may have been too generous" when
he initially recommended that Mills not be fired. Further, Ridenour
wrote to Hincker, stating that they needed to discuss what to do in
response to the Roanoke Times article. Together, the comments and
the timing lead to a permissible inference that the University acted
against Mills in response to his speech.

                                  B.

    Having cleared these obstacles, Mills still must show that his inter-
est in speech outweighs the University's interest in efficient function-
ing of the radio station. In conducting this assessment, we are to
consider the context of the speech, the employee's role in the work-
place, and his organization's mission. See McVey v. Stacy, 

, 278 (4th Cir. 1998); see also Rankin v. McPherson, 

, 388-91 (1987). Several factors are relevant in making this deter-
mination. Many of these relate to the function of the organization:
whether the speech impairs discipline or harmony in the organization,
hinders the employee in the performance of his duties, interferes with
the operation of the organization, or undermines the organization's
mission. See 

; see also 

. Other factors focus on the connection between the speech and
the employee's role: whether the speech was made in public or pri-
vate, whether the speech conflicts with the employee's official duties,
and whether the speech used authority derived from the employee's

                                  10
role at work. See 

; see also 

.

    Some agencies, such as police and fire departments, provide such
essential services and depend so much on good working relations
within the department that we place a premium on the government's
interest as we conduct the Pickering balancing test. See, e.g., Gold-

(noting that the interest in camaraderie and
efficiency in a fire company merited "substantial weight"); Cromer v.
Brown, 

, 1328 (4th Cir. 1996) (noting the wide latitude
law enforcement agencies have in internal disciplinary matters). This
is not such a case. See also 

(noting a
less critical government interest in providing a radio station than in
providing public health, safety, or self-government services or func-
tions). At WVTF, as at any government organization, the state (the
University) as an employer is entitled to rely on its employees not to
interfere with its efforts to provide services to the public. See 

. We take note, however, of the fact that the radio sta-
tion, like the University community as a whole, is less likely to suffer
a disruption in its provision of services as a result of a public conflict
than is a public safety organization.

    Given this backdrop, we note that the first group of factors, those
that deal with whether the employee's speech is likely to have a direct
effect on the ability of the organization to function, are not strongly
implicated in this case. The University has made no allegation that the
radio station was unable to function, that Mills refused to perform his
on-air duties or did them in an unprofessional or otherwise inappro-
priate manner, or that Mills was no longer able to function effectively
as station manager. The University points to the disruptive effect of
handling communications from listeners, but it is hard to see this as
a major strain on the station when contributions increased in the wake
of the conflict. The University simply has not shown that Mills's
speech did, or at any point realistically threatened to, interfere with
effective functioning of the station. See Daulton v. Affeldt, 

, 491 (4th Cir. 1982) (finding that speech did not interfere with the
operation of a college where the "disputes did not . . . create any more
disharmony than would be expected when a subordinate criticizes her
superiors on any subject").

                                   11
    The state's interest in preventing senior employees from speaking
out in ways that undermine official policies, goals, and decisions,
however, may be implicated here. An employee in a particularly sen-
sitive position — in which he has a confidential, policymaking, or
public contact role — receives less First Amendment protection than
does a lower-level employee. 

. Mills's role as
station manager and his use of that title in speaking on matters within
his professional purview certainly implicate the state's interest in reg-
ulating speech of senior employees. We have, however, never found
that senior officials receive no First Amendment protection. See

(Murnaghan, J., concurring in part and con-
curring in the judgment). Moreover, although Mills holds a senior
position within the radio station, he is not in the sort of politically sen-
sitive position that gives the state the broadest possible latitude in
removing an employee. See 

J., concurring in
part and concurring in the judgment) (explaining that the protection
given to an employee varies depending on the extent of the employ-
ee's "confidential duties, policymaking and public contact"). Unlike
those who can be fired for purely ideological reasons, see id.
(Murnaghan, J., concurring in part and concurring in the judgment),
Mills's position is not one in which political "goals or programs affect
the direction, pace, or quality of governance." Stott v. Haworth, 

, 142 (4th Cir. 1990) (quoting Jimenez Fuentes v. Torres
Gaztambide, 

, 241-42 (1st Cir. 1986) (en banc) (internal
quotations omitted)). We find it hard to see a comparison between one
who implements broad state policy and Mills, who was a station man-
ager. In short, no one reading his letters or interviews would view
Mills as speaking for the state or the University. This reduced consid-
erably the state's interest in restraining his speech.

    The state's interest in ensuring the efficient functioning of one of
its organizations, therefore, is not implicated by Mills's speech. Its
interest in preventing senior officials from speaking in ways that
undermine the state's policy goals is only mildly implicated here. On
the other side, Mills's interest in informing those who support the sta-
tion of what programming decisions had been made and how they
were made — all matters of public concern — is considerable. We
conclude, therefore, that the Pickering balancing test favors Mills and
that his First Amendment rights were violated by the retaliatory trans-
fer and termination.

                                    12
                                 C.

    Having demonstrated that his First Amendment rights were vio-
lated, Mills has yet one more hurdle to overcome. He must show that
the defendants are not entitled to qualified immunity because the law
was clearly established and a reasonable official would have known
that the action violated Mills's rights. 

.
Although plaintiffs have prevailed in some First Amendment retalia-
tion cases, see 

, most do not, simply
because the individualized assessment required by the Pickering bal-
ancing test means we can rarely say that the law was clearly estab-
lished and that reasonable officials would have been aware of the law.
See 

DiMeglio v. Haines, 

, 806 (4th Cir.
1995); 

.

    Here, as with most cases, we cannot say that the defendants should
have known that transferring or terminating Mills because of his
speech would be a violation of his First Amendment rights. Given the
fine line drawing required to determine whether someone in Mills's
position is entitled to First Amendment protection under the Pickering
test, we cannot say that the law with respect to Mills's First Amend-
ment rights was clearly established. We also cannot say that a reason-
able official should have known what the outcome of our First
Amendment analysis would be. We therefore conclude that the defen-
dants are entitled to qualified immunity on Mills's First Amendment
claim.

                                 IV.

   On both counts, therefore, we agree with the district court's dis-
missal of the claims against the defendants. We affirm the district
court's conclusion that the defendants did not violate Mills's due pro-
cess rights. Unlike the district court, however, we find that Mills's
First Amendment rights were violated; we agree with the court's grant
of summary judgment, however, because the defendants are entitled
to qualified immunity. The judgment of the district court is affirmed.
                                                          AFFIRMED

                                 13