McLean v. Town of Carolina Beach

Fourth Circuit

McLean v. Town of Carolina Beach

5 F. App'x 304

CourtCourt of Appeals for the Fourth Circuit

DecidedMarch 16, 2001

Docket00-1898

StatusUnpublished

This text of 5 F. App'x 304 (McLean v. Town of Carolina Beach) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McLean v. Town of Carolina Beach, 5 F. App'x 304 (4th Cir. 2001).

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OPINION

PER CURIAM.

James McLean appeals the district court’s order denying relief on his 42 U.S.C.A. § 1983 (West Supp. 2000) complaint. McLean alleged that he was wrongfully terminated from his position as a police officer in retaliation for his accusations against town officials and other members of the police department. He claimed that this discharge violated his rights to free speech under the United States and North Carolina Constitutions, and violated a North Carolina statute that prohibited retaliatory discharge of state employees who report improper government activities. See N.C. Gen.Stat. § 126-84, 86 (1999).

We have reviewed the record and conclude that McLean’s speech was not that of a private citizen speaking on a matter of public concern, but that of an employee, entitled to lesser First Amendment protection. See McVey v. Stacy, 157 F.3d 271, 277 (4th Cir.1998); DiMeglio v. Haines, 45 F.3d 790, 804-05 (4th Cir.1995). Moreover, even assuming McLean’s speech merited full First Amendment protection, we conclude that his speech was not a substantial motivating, or “but for” factor in his discharge, which was supported by numerous violations of departmental regulations. Maciariello v. Sumner, 973 F.2d 295, 299-300 (4th Cir.1992). McLean’s constitutional claims were therefore properly dismissed. See Evans v. Cowan, 132 N.C.App. 1, 510 S.E.2d 170, 175 (1999). McLean’s claim under the “whistle-blower” statute is also without merit, as local police officers are not within the group of employees for whom the statute provides protection. See Conran v. New Bern Police Dep’t, 122 N.C.App. 116, 468 S.E.2d 258, 259 (N.C.App.1996).

Accordingly, we affirm the judgment of the district court. See McLean v. Town of Carolina, No. CA-99-17-F1 (E.D.N.C. May 31, 2000). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED.

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OPINION

PER CURIAM.

James McLean appeals the district court’s order denying relief on his 42 U.S.C.A. § 1983 (West Supp. 2000) complaint. McLean alleged that he was wrongfully terminated from his position as a police officer in retaliation for his accusations against town officials and other members of the police department. He claimed that this discharge violated his rights to free speech under the United States and North Carolina Constitutions, and violated a North Carolina statute that prohibited retaliatory discharge of state employees who report improper government activities. See N.C. Gen.Stat. § 126-84, 86 (1999).

We have reviewed the record and conclude that McLean’s speech was not that of a private citizen speaking on a matter of public concern, but that of an employee, entitled to lesser First Amendment protection. See McVey v. Stacy, 157 F.3d 271, 277 (4th Cir.1998); DiMeglio v. Haines, 45 F.3d 790, 804-05 (4th Cir.1995). Moreover, even assuming McLean’s speech merited full First Amendment protection, we conclude that his speech was not a substantial motivating, or “but for” factor in his discharge, which was supported by numerous violations of departmental regulations. Maciariello v. Sumner, 973 F.2d 295, 299-300 (4th Cir.1992). McLean’s constitutional claims were therefore properly dismissed. See Evans v. Cowan, 132 N.C.App. 1, 510 S.E.2d 170, 175 (1999). McLean’s claim under the “whistle-blower” statute is also without merit, as local police officers are not within the group of employees for whom the statute provides protection. See Conran v. New Bern Police Dep’t, 122 N.C.App. 116, 468 S.E.2d 258, 259 (N.C.App.1996).

Accordingly, we affirm the judgment of the district court. See McLean v. Town of Carolina, No. CA-99-17-F1 (E.D.N.C. May 31, 2000). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED.

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