USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 1 of 22
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-1287
PETER J. MASSARO
Plaintiff - Appellant
v.
FAIRFAX COUNTY
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:20−cv−00929−TSE−TCB)
Argued: January 23, 2024 Decided: March 19, 2024
Before WILKINSON, QUATTLEBAUM, and RUSHING, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Quattlebaum and Judge Rushing joined.
ARGUED: Daniel Scott Crowley, HANNON LAW GROUP, LLP, Washington, D.C., for Appellant. Emily Kathryn Blake, MCGAVIN, BOYCE, BARDOT, THORSON & KATZ, P.C., Fairfax, Virginia, for Appellee. ON BRIEF: Heather K. Bardot, MCGAVIN, BOYCE, BARDOT, THORSON & KATZ, P.C., Fairfax, Virginia, for Appellee. USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 2 of 22
WILKINSON, Circuit Judge:
Plaintiff Peter Massaro contends that his employer, the Fairfax County Police
Department, transferred him to an inferior posting in retaliation for his filing a complaint
alleging discrimination in departmental promotion practices. He sued Fairfax County,
seeking relief under Title VII of the Civil Rights Act, the Age Discrimination in
Employment Act, and 42 U.S.C. § 1983. The district court granted summary judgment to
Fairfax County on all claims and dismissed the case, holding that Massaro failed to
establish the requisite causal connection between his initial discrimination complaint and
his subsequent job transfer. For the following reasons, we affirm the judgment of the
district court.
I.
A.
Because Fairfax County’s motion for summary judgment was granted below, we
recount the facts and all justifiable inferences arising from them in the light most favorable
to Massaro on appeal. Libertarian Party of Va. v. Judd, 718 F.3d 308, 312 (4th Cir. 2013).
Massaro has been a police officer with the Fairfax County Police Department since 1996.
From February 2018 to May 2020, Massaro was the supervisor of the firearms training
range at the Fairfax Criminal Justice Academy (the “Academy”). There, Massaro “was
responsible for training the entire Police Department, the Fairfax County Sheriff’s
Department, and the police departments for the towns of Vienna and Herndon, in the use
of firearms.” J.A. 9. By all accounts, his role was a significant one that came with a great
deal of leadership responsibility.
2 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 3 of 22
Massaro, however, was frustrated. Twice he was passed over for promotion to First
Lieutenant, even though he had passed the requisite examination and believed he was the
most qualified candidate for the position. He was not selected in April 2018, nor was he
selected in September 2018. To Massaro’s chagrin, two women he saw as less qualified
than him were promoted to First Lieutenant during these cycles: Marisa Kuhar and Loriann
LaBarca.
Massaro took issue with Kuhar’s promotion first. He believed that she lacked the
requisite educational requirements and suspected that something nefarious was afoot in the
Department. On September 26, 2018, Massaro filed a discrimination complaint with
Fairfax’s Office of Human Rights and Equity Programs (OHREP), alleging that Chief
Edwin Roessler had promoted Kuhar instead of Massaro only because of Massaro’s sex.
He later amended this complaint to include similar claims of age and race discrimination.
Investigators looked into Massaro’s discrimination complaint and discovered that Kuhar’s
promotion had since been rescinded and deferred. While Chief Roessler had initially
believed Kuhar possessed the credentials necessary for promotion, this was later revealed
to be mistaken. A male officer was promoted in Kuhar’s place, and her promotion was
deferred until she could complete the required educational credits. Once investigators were
apprised of this information, Massaro’s grievance was dismissed on the grounds that he
had not suffered an adverse employment action on which a complaint could be based. This
decision was issued on October 4, 2018, and Massaro did not appeal it.
Another Second Lieutenant, Timothy Burgess, lodged a similar discrimination
complaint against Chief Roessler around the same time. Burgess, too, asserted that he was
3 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 4 of 22
more qualified than candidates selected for First Lieutenant, and claimed that Chief
Roessler failed to promote him due to his race, sex, and age. His complaint was tied to an
earlier promotion cycle than the one central to Massaro’s complaint. In it, he complained
of the promotions of a white female, a black male, and an Asian male. OHREP and the
Police Department’s Internal Affairs Bureau (IAB) investigated Burgess’s complaint,
independently concluded that it was unfounded, and dismissed it.
Fast forward to May 2019—eight months after Massaro filed his complaint. Chief
Roessler was looking to reform the Academy where Massaro worked after a series of
concerning events, including an accidental firearm discharge, allegations that a range
instructor used a racial slur against black police officers, and a widespread failure to follow
departmental policies. As part of the reform efforts, Chief Roessler transferred Major Paul
Cleveland to the Academy to take over as commander. He hoped Major Cleveland could
get the place back on track.
But according to Massaro, Major Cleveland was sent to the Academy for a more
sinister reason: to punish and ultimately get rid of Massaro as retribution for his
discrimination complaint against Chief Roessler. Massaro testified that Major Cleveland,
when asked why he had been transferred to the Academy, told Massaro that “your
complaint against the Chief isn’t helping you and isn’t helping the situation.” J.A. 1189.
Massaro also pointed out that Major Cleveland had ignored Massaro’s recommendations
for candidates to fill open positions at the Academy and slotted in his own choices instead.
In Massaro’s eyes, this was further evidence that Major Cleveland had been sent to carry
out Chief Roessler’s retribution.
4 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 5 of 22
Major Cleveland also allegedly divulged his animus to others at the Academy.
Massaro and two other officers recounted that Major Cleveland told a group of detectives
that Massaro had a “target on his back” due to “the promotion complaints,” which the
detectives took to mean the September 2018 discrimination complaint. J.A. 1594; J.A.
1997; J.A. 2014.
Tensions further escalated upon First Lieutenant Loriann LaBarca’s visit to the
Academy. LaBarca, as noted, was one of the women promoted to First Lieutenant in 2018.
On May 22, 2019, Massaro saw LaBarca standing in the common room of the firing range,
and the two of them struck up a conversation in his office. LaBarca shared that
departmental leadership wanted to showcase her promotion on social media, but that she
was uncomfortable with the idea, as she felt it would call too much attention to her. Massaro
testified that at this point, LaBarca asked him if he believed she only got promoted because
she was a woman. Massaro replied that there were others who were more qualified than
her to be First Lieutenant, and that he believed sex was a “decisive factor” in her promotion.
J.A. 1176. This comment enraged LaBarca, and she stormed out of his office.
LaBarca turned to departmental leadership to address the incident. She first relayed
the conversation to her direct supervisor and then to Major Cleveland. Major Cleveland
testified that he felt that he “didn’t have an option” but to report the incident to IAB, as
what LaBarca was telling him was an “HR-specific type complaint[]” that was “pretty
severe.” J.A. 672. Major Cleveland disclosed the matter to the IAB investigators on duty,
who conducted preliminary interviews with LaBarca and Massaro and decided to launch a
formal investigation into the matter.
5 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 6 of 22
The next day, IAB investigators Second Lieutenants Andrew Hirshey and Dana
Ferreira sat down with Massaro to get to the bottom of what had happened. The
conversation went off the rails, leading to an incensed Massaro opining at length about why
his confrontation with LaBarca was justified. “I don’t understand why we have to pretend
the commander has to be treated with kid gloves,” he insisted. “[I]s she gonna be the one
that leads us into the fight[?] Is she gonna pick up the bodies[?] [W]ho’s really gonna lead
the organization?” J.A. 918. He harangued, “[Y]ou don’t learn [leadership] by watching
people who are shitty leaders . . . . If you coddle her and you continue to coddle people that
. . . have deficiencies, you’re gonna have a deficient command staff.” J.A. 919. According
to Massaro, LaBarca “needs to grow the hell up and learn to be a commander [be]cause
this is bullshit. To drag a man like me in here over this bullshit hurt feeling crap and
threaten me with relief of duty and destroy my reputation and career is bullshit.” J.A. 920.
Massaro was inflamed, pacing about the room in a fury.
Major Cleveland was watching a live stream of the interview from another room.
After the questioning was over, he entered the interview room and sat across the table from
Massaro. According to Massaro’s testimony, Major Cleveland asked him, “Didn’t I tell
you to stay calm?” When Massaro responded that he was merely defending himself against
the accusations, Massaro alleges that Major Cleveland told him, “Well, you know what,
Pete? I think my resume is as good as yours. What do you think about that?” Massaro
alleged that Major Cleveland then leaned forward and said, “And another thing. I think that
Loriann LaBarca makes a fine commander. What do you think about that?” J.A. 1212.
According to Massaro, Major Cleveland then left the room.
6 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 7 of 22
When Hirshey and Ferreira returned, they told Massaro he would be relieved from
duty. Hirshey then prepared a memorandum summarizing his conclusions, in which he
recommended that Massaro be found in violation of two departmental policies. The first
policy, Regulation 201.14, prohibited unlawful discrimination (the “Unlawful
Discrimination Regulation”). The second policy, Regulation 201.13, mandated that
employees “treat individuals . . . with respect, courtesy, and tact” (the “Human Relations
Regulation”). Massaro attended a relief of duty hearing, after which he was placed on
administrative leave. Chief Roessler also informed Massaro that he would be required to
undergo psychological testing, as Massaro’s behavior in the interview had given Chief
Roessler “great cause for concern regarding [Massaro’s] ability to perform [his] full duties
as a police supervisor.” J.A. 88.
Massaro appealed Hirshey’s findings. The next step in the review process was a
hearing before the IAB, over which Captain Michael Wall presided. Captain Wall reviewed
the evidence presented to him and concluded that, while Massaro had not violated the
Unlawful Discrimination Regulation, he did violate the Human Relations Regulation.
“Objectively,” Captain Wall found, “it is not respectful or tactful to tell a female employee
that her promotion was based on her gender . . . . While Second Lieutenant Massaro is
entitled to his opinion, it was inappropriate of him to direct it personally at Lieutenant
LaBarca in the workplace.” J.A. 161. Captain Wall recommended a one-day suspension as
punishment for the violation. Massaro again appealed this decision.
The appeal was reviewed by Major Robert Blakely, who affirmed the finding that
Massaro had violated the Human Relations Regulation. He agreed that Massaro should be
7 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 8 of 22
suspended. But he also felt he had “no choice but to recommend that [Massaro] be
transferred from the Criminal Justice Academy,” as his “position as the senior first-line
supervisor at the Firearms Training Unit . . . is a one-of-a-kind position,” given that it
required Massaro to “oversee and coordinate the training of thousands of incumbent police
officers annually, in addition to overseeing the training of our most vulnerable
employees—police recruits.” J.A. 549. Major Blakely also noted that this was Massaro’s
third recorded violation of the Human Relations Regulation. To leave Massaro in a position
of supervisory authority could thus open the Department up to liability. Massaro again
appealed.
The next stage of the appeal involved a hearing conducted by a three-member panel.
One of the members was selected by the Police Department, one was selected by Massaro,
and the third was selected by the first two members. Ten witnesses testified at the hearing.
At the conclusion of the evidence, two of the panel members found that there was
insufficient evidence to support a violation of the Human Relations Regulation. The third
member issued a dissenting opinion, recommending that the charge and suspension be
upheld, but finding the transfer unwarranted.
Finally, the case came to Chief Roessler’s desk, who pursuant to state law was the
final decisionmaker within the Department on such matters. See Virginia Code § 9.1–504
(“The recommendations of the hearing panel . . . shall be advisory only, but shall be
accorded significant weight [by the chief executive officer of the law-enforcement
agency.]”). On March 12, 2020, Chief Roessler reinstated the violation of the Human
Relations Regulation and imposed a disciplinary transfer, reassigning Massaro to work the
8 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 9 of 22
night shift on the Patrol Bureau. He emphasized that Massaro, while on duty, “made
unprofessional remarks to another employee which involved gender and degrading
statements about this person’s integrity as a commander.” J.A. 1528. These statements
were “disrespectful and unprofessional” and thus failed to show “respect, courtesy and
tact” under the terms of the regulation. J.A. 1528. As for the disciplinary transfer, Chief
Roessler noted that Massaro’s actions “diminished the level of trust needed for any
incumbent to hold a highly specialized supervisory position at the Academy” and thus a
reassignment was necessary. J.A. 1534. Massaro wrote to the County Executive in charge
of appeals, who deferred to Chief Roessler and upheld his decision. Over fierce objection
by Massaro, he was transferred from the Academy.
B.
Massaro sued Fairfax County in the United States District Court for the Eastern
District of Virginia, alleging retaliation in violation of Title VII, the ADEA, and the First
Amendment. After discovery, both parties moved for summary judgment. The court first
addressed Massaro’s Title VII and ADEA claims, finding that they failed because “the
evidence [did] not show a causal relationship between Massaro’s protected activity and the
adverse employment action Massaro suffered.” Massaro v. Fairfax County, No. 1:20-CV-
0929, 2022 WL 464556, at *7 (E.D. Va. Feb. 15, 2022). Instead, “the record show[ed] that
the disciplinary actions taken against Massaro were the result of a lengthy investigation
process that had nothing to do with Massaro’s September 2018 complaint.” Id. at *8.
Similarly, on the First Amendment claim, the court found that “the record contains no
evidence to warrant a reasonable jury to conclude that Massaro’s protected speech was a
9 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 10 of 22
substantial factor in the Police Department’s decision to discipline Massaro.” Id. The
district court then granted summary judgment to Fairfax County on all of Massaro’s claims.
Massaro timely appealed.
II.
We review a grant of summary judgment de novo. Evans v. Techs. Applications &
Serv. Co., 80 F.3d 954, 958 (4th Cir. 1996). Summary judgment is proper when “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014) (quoting Fed. R. Civ. P.
56(a)). “A dispute is genuine if a reasonable jury could return a verdict for the nonmoving
party.” Libertarian Party of Va., 718 F.3d at 313 (internal quotation marks omitted).
We first address Massaro’s claims under Title VII and the ADEA, which are
analyzed under the same framework. Walton v. Harker, 33 F.4th 165, 171 (4th Cir. 2022).
Title VII prohibits an employer from (1) discriminating against an employee on the basis
of sex, and (2) retaliating against an employee for complaining about past discrimination
or retaliation. 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). Similarly, the ADEA forbids
retaliation against an employee who complains of age discrimination. See 29 U.S.C.
§ 633a(a).
1.
We begin by considering the well-settled framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). To prevail under this framework, Massaro must first
10 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 11 of 22
establish a prima facie case of retaliation by showing that (1) he engaged in protected
activity; (2) his employer took adverse action against him; and (3) a causal nexus existed
between the protected activity and the adverse action. Foster v. Univ. of Maryland-E.
Shore, 787 F.3d 243, 250 (4th Cir. 2015).
The district court concluded that Massaro satisfied the first two requirements. He
engaged in a protected activity when he filed his September 2018 discrimination complaint
and suffered an adverse action at the hands of Chief Roessler, his employer, when he was
transferred away from the Academy in March 2020. See Massaro, 2022 WL 464556, at *6.
Fairfax County does not dispute these findings on appeal, and we see no need to revisit
them. Therefore, the only issue on appeal relevant to this framework is whether Massaro
can satisfy its causation element.
To do so, Massaro must show that Chief Roessler imposed the disciplinary transfer
“because [he] engaged in a protected activity.” Dowe v. Total Action Against Poverty in
Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998). No reasonable juror could conclude
that Massaro met this burden. The temporal lag between his discrimination complaint and
his ultimate transfer was too great to support any inference of causation standing alone.
And even taking the evidence in the light most favorable to Massaro, the record cannot
support an inference that Massaro’s transfer was the result of a scheme orchestrated by
Chief Roessler to punish Massaro for his complaint. To the contrary: the evidence
establishes that it was Massaro’s subsequent actions that caused the transfer.
We have held that causation can be inferred when “the employer takes adverse
employment action against an employee shortly after learning of the protected activity.”
11 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 12 of 22
Penley v. McDowell Cnty. Bd. of Educ., 876 F.3d 646, 656 (4th Cir. 2017). But “the
temporal proximity must be very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,
273 (2001) (internal quotation marks omitted). Here, the time lapse between Massaro’s
complaint and the imposition of his disciplinary transfer was roughly eighteen months—
from September 2018 to March 2020. That is much too long to support a causal inference,
and we have consistently denied such an inference even in cases with shorter gaps. See
Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998) (thirteen months); Penley, 876 F.3d at
656 (eight or nine months); Roberts v. Glenn Indus. Grp., 998 F.3d 111, 126 (4th Cir. 2021)
(three months).
Even worse for Massaro, temporal proximity is a double-edged sword: “A lengthy
time lapse between the employer becoming aware of the protected activity and the alleged
adverse employment action . . . negates any inference that a causal connection exists
between the two.” Dowe, 145 F.3d at 657. The significant length of time at issue in this
case, then, cuts strongly against Massaro’s assertions of a causal nexus.
It is possible, though difficult, for a plaintiff to overcome an absence of temporal
proximity. In Lettieri v. Equant, Inc., we held that “[i]n cases where temporal proximity
between protected activity and allegedly retaliatory conduct is missing . . . evidence of
recurring retaliatory animus during the intervening period can be sufficient to satisfy the
element of causation.” 478 F.3d 640, 650 (4th Cir. 2007) (internal quotation marks
omitted). Massaro argues that he has made just such a showing. But his evidence fails to
establish the pattern of retribution required.
12 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 13 of 22
In Lettieri, the plaintiff put forth evidence that she had been subjected to recurring
retaliatory animus by her employer as part of a long-running plan to terminate her
employment. The “very next month” after the plaintiff made her discrimination complaint,
her supervisor “stripped [her] of significant job responsibilities,” which “made it easier”
for her supervisor “to take the position later that [the plaintiff] was not needed and should
be terminated.” Id. at 651. And indeed, “[b]efore long . . . discussions about firing [the
plaintiff]” began. Id. After the plaintiff was terminated because “her position was
supposedly redundant,” her supervisor “immediately sought approval to hire a
replacement” for her. Id. These intervening events, which “occurred regularly” after the
plaintiff’s complaint, could “reasonably be viewed as exhibiting retaliatory animus on the
part” of her supervisors and were thus sufficient to show a causal nexus between her
complaint and termination. Id.
No such recurring animus or choreographed scheme exists here. The gap between
Massaro’s discrimination complaint and the first alleged “step” in the conspiratorial chain
Massaro concocts is too great, breaking the requisite continuity needed to establish
causation. The first act of alleged retaliation Massaro can point to is Major Cleveland’s
transfer to the Academy, which did not occur until eight months after Massaro’s complaint.
We thus can scarcely say that there was “continuing retaliatory conduct” that “occurred
regularly” between Massaro’s complaint and disciplinary transfer. Id. at 650–51 (emphasis
added). Massaro offers no possible explanation for why Chief Roessler would wait eight
months before launching his asserted plan of revenge into action.
13 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 14 of 22
To the contrary, the record demonstrates that Massaro’s asserted causal connection
is altogether implausible, given the existence of a much more straightforward explanation
for the discipline: Massaro’s own conduct. The evidence amply supports the conclusion
that Chief Roessler decided to discipline Massaro in light of the IAB investigation. In fact,
there is no evidence that creates a genuine dispute of material fact as to Massaro’s claim
that Chief Roessler transferred him because of lingering animus. Chief Roessler issued his
finding that Massaro had violated the Human Relations Regulation only after multiple
layers of authority independently concluded the same and detailed their findings
accordingly. Indeed, the appeal went through four stages before reaching Chief Roessler’s
desk, and the majority of those who reviewed the evidence recommended that Massaro be
disciplined, without having had any prior contact with Chief Roessler about Massaro. In
assessing the reports made by his colleagues, Chief Roessler understandably chose to agree
with the majority conclusion that Massaro had violated the Humans Relations Regulation
by making unprofessional and uncalled for remarks in the workplace. Chief Roessler was
entitled to rely on these carefully documented judgments in reaching his own decision—
that is, after all, the very purpose of an appeals structure with numerous stages of review.
Nor was Chief Roessler’s decision to transfer Massaro so startling as to raise the
alarm bells of pretext. Massaro had hurled insults against a higher-ranking colleague in the
workplace, and, when questioned about the incident, launched into a tirade seeking to
defend his own behavior. It is thus unsurprising that Chief Roessler felt he could not risk
keeping Massaro in a role as sensitive as that of the supervisor of the firearms training
range. Chief Roessler, as the leader of the Department, was therefore well within reason
14 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 15 of 22
when he concluded it was vital that Massaro be removed from this “one-of-a-kind
position.” J.A. 549. The record contains no evidence to dispute the conclusion, then, that
Massaro’s transfer was caused not by a complaint that had been resolved nearly two years
prior, but by his own poor and alarming behavior in the workplace.
Further, it is unclear why Massaro would be targeted for filing a discrimination
complaint when Burgess, who filed a similar complaint accusing Chief Roessler of the
same practices, suffered no adverse employment action. The distinguishing factor between
the two men is that Massaro later violated a departmental policy that justified discipline,
whereas Burgess did not. This comparison casts into sharp relief how unlikely it is that
Massaro’s transfer was retaliation for his discrimination complaint.
In sum, Massaro’s conjecture does not rise to the level of evidence that would allow
a reasonable jury to conclude that Massaro had met the causation element of the prima
facie case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We decline to
force together links to create a causal chain that does not exist. There is simply not enough
evidence of a nexus between his 2018 discrimination complaint and his 2020 disciplinary
transfer, especially given the existence of a simple explanation for the reassignment:
Massaro’s intervening erratic behavior and violation of departmental policy.
2.
Massaro argues, however, that he has presented direct and indirect evidence of
retaliation sufficient to allow his case to go before a jury. “To avoid summary judgment,
the plaintiff must produce direct evidence of a stated purpose to discriminate and/or indirect
evidence of sufficient probative force to reflect a genuine issue of material fact.” Rhoads
15 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 16 of 22
v. FDIC, 257 F.3d 373, 391 (4th Cir. 2001). This requires “evidence of conduct or
statements that both reflect directly [on] the alleged discriminatory attitude and that bear
directly on the contested employment decision.” Id. at 391–92. He points to two categories
of evidence in support of this claim: actions taken by Major Cleveland that Massaro says
evince retaliatory intent; and circumstances surrounding the investigation that he says
reveal it to be a “setup.” J.A. 1166. We find his arguments unpersuasive.
Massaro first attempts to show that Major Cleveland was motivated by retaliatory
intent when he filed the IAB complaint. As evidence, he points to Major Cleveland’s earlier
statements that Massaro had a “target on his back” and that the range was under scrutiny
at least in part because of Massaro’s discrimination complaint. He highlights how Major
Cleveland’s first act as Commander was to undermine Massaro’s authority to choose his
own staff. He stresses that Major Cleveland chose to report Massaro to IAB just weeks
after warning Massaro that the Academy was being watched by Chief Roessler. And he
emphasizes how Major Cleveland allegedly mocked him at the end of his IAB interview.
According to Massaro, a reasonable juror could interpret these actions as evidence that
Major Cleveland was placed at the Academy by Chief Roessler to devise a pretextual
investigation to retaliate against Massaro for the discrimination complaint.
We are not persuaded. Even though Major Cleveland allegedly told Massaro that
his discrimination complaint raised alarm bells with departmental leadership, there were a
variety of legitimate reasons Chief Roessler wanted to transfer Major Cleveland to the
Academy that had nothing to do with Massaro, such as safety violations and allegations of
racial discrimination. Further, while Massaro was offended by Major Cleveland’s staffing
16 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 17 of 22
of the Academy, Massaro concedes that it was Major Cleveland’s prerogative as
Commander to do so. It is also undisputed that the candidates chosen were well qualified.
Moreover, to portray Major Cleveland’s report to IAB of LaBarca’s complaint as a
“choice” is questionable. Not only did Major Cleveland testify that he felt obligated to
report the complaint, but he was in fact required to do so by departmental regulations. See
J.A. 639 (“I don’t have a choice but to walk across the hallway to IA.”); J.A. 1943 (“Any
employee who has knowledge of other employees . . . violating any . . . Regulations of the
Department . . . shall immediately bring . . . the matter to the attention of . . . the Internal
Affairs Bureau (IAB).”). Massaro offers no evidence to create a genuine dispute of material
fact on this point.
Further, Massaro’s claim that Major Cleveland antagonized him after the IAB
interview overstates what Major Cleveland actually said. But even accepting Massaro’s
characterization, the alleged harassment occurred after Hirshey had already decided he was
going to relieve Massaro of duty, and Hirshey testified that Major Cleveland never told
him what was discussed between he and Massaro in the interview room. Indeed, Major
Cleveland played no active role in the IAB investigation at all once it began. The idea that
Major Cleveland engineered a top-down conspiratorial scheme of retribution, then, is
simply not plausible.
Massaro next argues that the IAB investigation itself was tainted and urges us to
hold that he has provided compelling evidence that it was nothing more than a front for
retaliation. His only evidence of this conspiratorial plot, however, is that Hirshey opined
in his deposition that he thought the investigation could have been a way to “get rid” of
17 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 18 of 22
Massaro in retribution for his discrimination complaint. J.A. 828–29. But Hirshey’s
retrospective impression that the investigation may have been subterfuge is “mere
speculation” and is not enough to create a triable issue of material fact. Dash v.
Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). Indeed, Hirshey testified that neither Chief
Roessler nor Major Cleveland interfered with his investigation, and that he would have
reached the same conclusion about the Humans Relations Regulation regardless of whether
the investigation was pretextual. The evidence suggests, therefore, that whatever Major
Cleveland’s intentions and impressions might conceivably have been, the investigation
itself was conducted independently. Thus no “reasonable factfinder could conclude that a
causal connection exists between the protected activity and the adverse action.” Dowe, 145
F.3d at 657.
C.
We turn next to Massaro’s claim under 42 U.S.C. § 1983 that he was retaliated
against for exercising his free speech rights. In order to make out a First Amendment
retaliation claim, a plaintiff must show that (1) he spoke as a citizen on a matter of public
concern, rather than as an employee on a matter of personal interest; (2) the employee’s
interest in his expression outweighed the employer’s “interest in providing effective and
efficient services to the public”; and (3) the employee’s speech was a “substantial factor”
in the adverse employment action. McVey v. Stacy, 157 F.3d 271, 277–78 (4th Cir. 1998).
The first element of the test is the “threshold question.” Ridpath v. Bd. of Governors
Marshall Univ., 447 F.3d 292, 316 n.26 (4th Cir. 2006) (quoting Rankin v. McPherson,
483 U.S. 378, 384 (1987)). We must examine the “content, form, and context of a given
18 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 19 of 22
statement” to discern whether it qualifies as expression on a matter of public concern.
Connick v. Myers, 461 U.S. 138, 147–48 (1983). An employee’s expression “involves a
matter of public concern when it involves an issue of social, political, or other interest to a
community.” Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc). This
excludes speech that is “of purely personal concern to the employee—most typically, a
private personnel grievance.” Berger v. Battaglia, 779 F.2d 992, 998 (4th Cir. 1985)
(internal quotation marks omitted). At bottom, “[t]he focus is . . . upon whether the ‘public’
or the ‘community’ is likely to be truly concerned with or interested in the particular
expression, or whether it is more properly viewed as essentially a ‘private’ matter between
employer and employee.” Id. at 999.
Massaro’s promotion complaint made via an internal grievance process does not
reflect a matter of public concern. While it is true that “discriminatory institutional policies
or practices can undoubtedly be a matter of public concern,” Massaro did not file his
complaint to draw public attention to the problems he saw with the Department. Brooks v.
Arthur, 685 F.3d 367, 372 (4th Cir. 2012). Instead, Massaro’s real beef with the
Department was that he, personally, was not promoted in lieu of a woman he viewed as
unqualified. In other words, “his complaint [was] replete with I’s and me’s.” Id.; see J.A.
65 (“I was the most qualified applicant for the position, however, I was not selected . . . . I
believe Mr. Edwin Ro[e]ssler, Chief of Police, failed to promote me because of my sex.”)
(emphasis added); J.A. 68 (“It is not fair or right that my race, gender and age are now
being used to keep me from the promotion due me.”) (emphasis added). A qualm focused
on one’s own perceived mistreatment is not a matter of public concern. Cf. Campbell v.
19 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 20 of 22
Galloway, 483 F.3d 258, 270 (4th Cir. 2007) (finding complaint of sexual harassment
involved a matter of public concern as it did not seek only to “resolve [complainant’s] own
personal problem” but rather detailed a pattern of harassment involving complainant,
members of the public, and other female officers).
The “form and context” by which the complaint was made buttresses our
conclusion, as “[t]he forum in which a petition is lodged will be relevant to the
determination whether the petition relates to a matter of public concern.” Connick, 461
U.S. at 147; Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 398 (2011). Indeed, “[a]
petition filed with an employer using an internal grievance procedure in many cases will
not seek to communicate to the public or to advance a political or social point of view
beyond the employment context.” Guarnieri, 564 U.S. at 398. Here, Massaro filed his
complaint with OHREP, the County office charged with investigating grievances made by
County employees. Massaro thus sought to improve his own station by following internal
procedures, rather than by communicating the alleged discriminatory practices to the public
through a more transparent and accessible medium. While he had every right to do this,
such a strategy reflects the private nature of his speech. Compare Pickering v. Bd. of Educ.,
391 U.S. 563, 564–65 (1968) (public employee’s letter to newspaper protected by First
Amendment); Perry v. Sindermann, 408 U.S. 593, 598 (1972) (legislative testimony); Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 284 (1977) (communication
with radio station).
In sum, we cannot casually transform run-of-the-mill employee complaints into
social and political commentaries backed by the full weight of the Constitution. To do so
20 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 21 of 22
would turn the workplace into a constitutional landmine, while offering public employees
inflated speech rights not shared by their private counterparts. We therefore affirm the
district court’s grant of summary judgment to the County on Massaro’s First Amendment
claim.
III.
None of the above is to suggest that we frown upon retaliation claims writ large.
When properly substantiated, retaliation suits serve an essential purpose: Congress
intended to ensure that employees are not subject to unjust punishment when they voice
valid criticisms of discriminatory behavior by their employers. See Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 175 (2d Cir. 2005) (emphasizing that “Congress enacted
the anti-retaliation clause [of Title VII] to shield an employee from employer retaliation
following the employee’s attempt to challenge discriminatory conduct”) (citing Robinson
v. Shell Oil Co., 519 U.S. 337, 346 (1997)).
By the same token, courts addressing retaliation claims are not forbidden to consider
the consequences of supervisory inaction. It will often be the case that the threat of a
retaliation suit means the safest course for departmental leaders is to do little or nothing.
Yet doing nothing may leave incapable, or worse, destructive individuals in place. And
doing nothing may condemn institutions badly in need of reform to a future of ossification.
Retaliation suits are meant to combat discrimination; they are not intended to induce
paralysis or to stand as a roadblock to needed institutional change. What the Supreme Court
said in the constitutional context must be equally true here: an employer need not “tolerate
action which he reasonably believe[s] would disrupt the office, undermine his authority,
21 USCA4 Appeal: 22-1287 Doc: 59 Filed: 03/19/2024 Pg: 22 of 22
and destroy close working relationships” for fear of retaliation claims. Connick, 461 U.S.
at 154.
The record shows Massaro’s claim to be a case in point. Chief Roessler was
confronted with an employee prone to bouts of unprofessional conduct who nonetheless
was stationed in an important and delicate position of authority. Massaro, who was tasked
with training numerous officers in the use of firearms, had demonstrated behavior at odds
with a collegial work environment and inimical to the Police Department’s chain of
command. See J.A. 161; 523; 547–50. Compounding his gratuitous insult to a supervisor
was a lack of impulse control quite incompatible with the discharge of his duties at the
firing range. See J.A. 88; 915–23. Faced with such pressing circumstances, Chief Roessler
made the call to shift Massaro to a position where he would not be able to make matters
worse. We decline to stand in the way. Leaders of our public institutions must be able to
engage in efforts to enhance the effectiveness of those workplaces they have been assigned
to lead. Imposing liability for insubstantial retaliation allegations risks sending a message
that simply filing a complaint is synonymous with securing tenure.
IV.
For these reasons, the judgment of the district court is hereby
AFFIRMED.