SEAN P. SMITH, Plaintiff - Appellant,
PETER S. GILCHRIST, III, Defendant - Appellee
Argued March 18, 2014
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:10-cv-00636-RJC-DLH). Chief Judge Traxler wrote the opinion, in which Judge Duncan and Senior Judge Davis joined.
Matthew Robert Arnold, James Bradley Smith, ARNOLD & SMITH, PLLC, Charlotte, North Carolina, for Appellant.
Grady L. Balentine, Jr., NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
Roy Cooper, Attorney General, Kathryn H. Shields, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS, Senior Circuit Judge. Chief Judge Traxler wrote the opinion, in which Judge Duncan and Senior Judge Davis joined.
TRAXLER, Chief Judge.
Sean P. Smith appeals a district court order granting summary judgment against him in his § 1983 action alleging that he was fired for exercising his free-speech rights in violation of the United States and North Carolina Constitutions. Concluding that the district court erred in granting summary judgment, we reverse and remand for trial.
Smith was employed as an assistant district attorney (" ADA" ) for the Mecklenburg County, North Carolina, District Attorney's office (the " DA's office" ) from 2004 through July 2010. In his last several years with the DA's office, he worked on the crimes-against-persons team. Peter Gilchrist was the elected district attorney (" DA" ) during Smith's tenure.
In February 2010, Smith met with Gilchrist to notify him of his intention to declare his candidacy for the office of Mecklenburg County district court judge. Gilchrist initially told Smith that to run for the office he would need either to resign from his position as ADA or take an unpaid leave of absence until the November election. However, Smith later brought to Gilchrist's attention the existence of North Carolina General Statute § 126-13(b), which Smith interpreted as entitling him to run without resigning from his position as an ADA. As a result, Gilchrist reconsidered and informed Smith that he could run for judge without resigning or taking a leave of absence. Smith subsequently formalized his candidacy.
A few months later, on his own time and at his own expense, Smith attended a four-hour defensive-driving course in Charlotte that the nonprofit Safety and Health Council of North Carolina (" SHC" ) offered to ticketed drivers. According to Smith, ticketed drivers would receive a pamphlet about the course from the ticketing police officer. Drivers who took the course were required to pay court costs and pay $60 to the driving school, but they received a " prayer for judgment continued" (" PJC" ) and were not assessed a fine. This program substantially reduced the number of cases that the DA's office and the courts were required to handle, freeing up resources that could be used for other matters.
On Friday, July 9, 2010, Smith gave an on-camera interview to the Charlotte FOX television affiliate detailing concerns he had about the defensive-driving course. Smith gave the interview as a part of his judicial campaign, and it was not related to his responsibilities as an ADA in the crimes-against-persons team, which did not include anything " related to traffic court." J.A. 131. The following Wednesday, Gilchrist, having been contacted by the interviewer for a reaction to the criticism by one of his ADAs regarding the course, called Smith to ask if he had given the interview. When Smith said he had, Gilchrist asked him to come to his office immediately. Smith then met with Gilchrist and Deputy DA Bart Menser in Gilchrist's office, whereupon the three engaged in a brief conversation.
Gilchrist had not seen the interview. Rather, Smith's description of the interview during this meeting was the sole basis for ...