¶1dissenting:
¶2I cannot agree that a generally unsatisfactory public employee immunizes herself from dismissal by opening her mouth and uttering sound. I would agree that the First Amendment is a vital democratic protection; but allowing that constitutional protection to be used as a shield from firing by an employee who is disgruntled, disagreeable and inefficient, but not mute, trivializes the concept of free speech.
¶3Mrs. Orr claims that she was not granted tenure because of her criticism of the plans for remodeling of the college’s Learning Resources Center. Those comments were made at a faculty meeting which Mrs. Orr was attending because of her employee status. In upholding Mrs. Orr’s claim, the majority opinion relies heavily on Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). As the Supreme Court’s most recent pronouncement on First Amendment rights of public employees emphasized, however, Pickeringrepeatedly talked about the rights of a public employee “as a citizen, in commenting upon matters of public concern.” Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 1688, 75 L.Ed.2d 708 (1983). That emphasis reflected the Court’s awareness that “government offices could not function if every employment decision became a constitutional matter.” Id.
¶4In the case before us, Mrs. Orr was not speaking as a citizen. She was acting in her capacity as a librarian. Although the allocation of library space at a public institution is arguably a matter of tangential public concern, Mrs. Orr’s comments were not motivated by her sense of duty as a citizen. Her concerns were those of an employee who disagreed with her superiors’ decisions on a matter of internal policy. Her claim is that her superiors were angered by her decision not to discuss her criticisms with them before going to the entire faculty with a departmental gripe. Their displeasure at that approach does not seem unwarranted. If we extend First Amendment protection to all such situations, this Court may well succeed in doing the impossible: We will make government operate even less efficiently than it does today.
¶5The law may sometimes move in mysterious and burdensome ways, but it is not so mysterious and burdensome as all that. In Chitwood v. Feaster, 468 F.2d 359 (4th Cir.1972), another case dealing with unten-ured teachers in West Virginia, the Fourth Circuit set out the limited scope of First Amendment protection:
Some of the affidavits refer to what seems to be bickering and running disputes with the department heads. We do not intend to suggest that that kind of speech is protected by the First Amendment in the sense that it may not be considered in connection with the termination of the employment relationship. [An employer] has a right to expect [an employee] to follow instructions and to work cooperatively and harmoniously with the head of the department. If one cannot or does not, if one undertakes to seize the authority and prerogatives of the department head, he does not immunize himself against loss of his position simply because his noncooperation and aggressive conduct are verbalized.
¶6Id. at 360-61. That language was quoted with approval in the recent case of English v. Powell, 592 F.2d 727 (4th Cir.1979). In that case, the court determined that an employee of the North Carolina County Alcoholic Beverage Control Board had ignored the chain of command because he was opposed to his immediate superior. The court opined that dismissal would have been justified despite the employee’s reliance on the First Amendment. As the *355opinion succinctly stated, “[T]here are limits to Pickering.” Id. at 732.
¶7Furthermore, I do not believe that Mrs. Orr has made out a case that her comments were a substantial factor in the decision to terminate her employment. It should first be noted that the majority’s approach to this case places an extraordinarily difficult evidentiary burden on public employers. They are asked to prove a negative. If an employee has ever said anything remotely controversial on a topic that is conceivably of public interest, the employer must prove that the comment was not a factor leading to the dismissal.
¶8Despite the apparent unreasonableness of this standard, the school officials in this case can establish a strong record. As a first cut, it is certainly worth noting that Mrs. Orr’s criticisms of the original plan for the Learning Center were eventually accepted in full. Despite her superiors’ understandable annoyance at her decision to voice her comments at a general faculty meeting without first sharing them with her co-workers, they ultimately accepted her suggestions as meritorious. This broadmindedness certainly tends to negate the inference that those comments were a material factor in her dismissal.
¶9In addition, however, the Board is hardly at a loss to demonstrate other reasons for choosing not to give Mrs. Orr tenure. Mrs. Orr had received a negative review from an impartial consultant, had neglected her responsibility to maintain the branch libraries, had ignored the chain of responsibility in handling the library system’s purchases, and had been found generally disagreeable both by those who worked for her and by those to whom she reported. We can speculate that if Mrs. Orr had waxed eloquent on the visionary nature of the original plan for the Learning Resources Center her employers may have overlooked her other inadequacies: such speculation, however, does not amount to evidence. Tis a brave new world indeed where an employee’s only means of obtaining absolute job security is to proclaim that his boss is stupid!
¶10There is nothing in the record that suggests Mrs. Orr had a right to tenure. As the Supreme Court ruled in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), untenured teachers do not have any reasonable expectancy of permanent employment. More specifically, the Fourth Circuit has held that under West Virginia tenure regulations: “[TJenure is not granted automatically, but requires positive and affirmative action” and that an untenured employee “had no property right in or legal expectancy of further employment.” Sheppard v. West Virginia Board of Regents, 516 F.2d 826, 829, (4th Cir.1975).
¶11I would also submit that there is nothing in the record that supports a charge that her dismissal was unfair. However, it is not the place of this Court to attempt to right all wrongs — even if we entertain some lurking suspicion that Mrs. Orr’s dismissal was for other than the noblest of reasons. Once again, I cannot improve on the language of the Supreme Court in outlining the limited scope of our inquiry: “Perhaps the government employer’s dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for dismissal are alleged to be mistaken or unreasonable.” Connick, supra, at 1690.
¶12Mrs. Orr’s record prior to her statement about the Learning Resources Center was far from exemplary. Her statements about the Center were made for personal reasons and not to advance public discourse. They were made in blatant disregard of the normal and reasonable business practice of discussing one’s disagreements with one’s bosses before going over their heads. Nevertheless, her suggestions were ultimately followed. To allow her to claim that those statements are at the heart of First Amendment protection is contrary to the current state of the law. To allow her to assert that those statements were a substantial cause of her dismissal is simply an unreasonable reading of the facts of this case. Bad workers do not *356become better simply because they talk. I dissent.