Rehearing en banc granted by order filed
`9/16/03. Opinion filed 5/30/03 is vacated.
`
`

`
`PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE FOURTH CIRCUIT
`
`4444444444444444444444444444444444444444444444447
`MATTHEW DIXON,
` Plaintiff-Appellant,
`
` v.
`
`No. 02-1266
`
`COBURG DAIRY, INCORPORATED,
` Defendant-Appellee.
`4444444444444444444444444444444444444444444444448
`Appeal from the United States District Court
`for the District of South Carolina, at Charleston.
`C. Weston Houck, District Judge.
`(CA-01-53-2-12)
`
`Argued: December 4, 2002
`
`Decided: May 30, 2003
`
`Before GREGORY, Circuit Judge, Joseph R. GOODWIN,
`United States District Judge for the Southern District of
`West Virginia, sitting by designation, and
`James H. MICHAEL, Jr., Senior United States District Judge
`for the Western District of Virginia, sitting by designation.
`
`____________________________________________________________
`
`Affirmed in part and reversed in part by published opinion. Judge
`Gregory wrote the opinion, in which Senior Judge Michael joined.
`Judge Goodwin wrote an opinion concurring in part and dissenting in
`part.
`
`____________________________________________________________
`
`COUNSEL
`
`ARGUED: Samuel Wilson Howell, IV, HOWELL & LINKOUS,
`L.L.C., Charleston, South Carolina, for Appellant. J. Thomas Kil-
`
`

`
`patrick, ALSTON & BIRD, L.L.P., Atlanta, Georgia, for Appellee.
`ON BRIEF: Alan B. Linkous, HOWELL & LINKOUS, L.L.C.,
`Charleston, South Carolina; Mikell R. Scarborough, Charleston,
`South Carolina, for Appellant. Christopher S. Enloe, ALSTON &
`BIRD, L.L.P., Atlanta, Georgia, for Appellee.
`
`____________________________________________________________
`
`OPINION
`
`GREGORY, Circuit Judge:
`
` Matthew Dixon, an employee of Coburg Dairy, Inc., was asked by
`his employer to remove two Confederate flag stickers from his tool
`box after an African-American co-worker complained. Dixon refused
`to remove the stickers, and Coburg, relying on the company's anti-
`harassment policy, fired Dixon. Dixon then filed suit in South Caro-
`lina state court, alleging wrongful discharge and a "Violation of Con-
`stitutional Rights." Coburg removed the case to federal court on the
`ground that Dixon's complaint necessarily depended on the resolution
`of a substantial question of federal law. Dixon filed a motion to
`remand, which the district court denied. The district court then
`granted Coburg's motion for summary judgment and dismissed the
`case. Dixon appeals both of the district court's rulings. For the rea-
`sons discussed below, we affirm in part and reverse in part.
`
`I.
`
` In April 1997, in Charleston, South Carolina, Matthew Dixon,
`began his employment as a mechanic with Coburg Dairy, Inc.,
`("Coburg"). In April 2000, Dixon was given a copy of Coburg's pol-
`icy prohibiting harassment. The policy explained that "[h]arassment
`may take many forms, including . . . [v]isual conduct such as deroga-
`tory posters, cartoons, drawings, or gestures." The policy also warned
`employees that anyone "who behaves in a manner that is inconsistent
`with this policy will be subject to discipline up to and including termi-
`nation."
`
` Dixon is an active member of the Sons of Confederate Veterans
`("SCV"), an all-male organization whose members "can prove genea-
`
`2
`
`

`
`logically that one of their ancestors served honorably in the armed
`forces of the Confederate States of America." Sons of Confederate
`Veterans v. Comm'r of the Va. Dep't of Motor Vehicles, 288 F.3d
`610, 613 n.1 (4th Cir. 2002). Beginning in January 2000, a conflict
`developed among South Carolinians over whether to remove the Con-
`federate battle flag from atop their state capitol dome. As Dixon
`notes, this conflict became "a burning issue in the State of South Car-
`olina," marking a "period of intense national scrutiny and public
`debate." (Br. for Appellant at 4.)
`
` It was in this context that Dixon placed two Confederate battle flag
`stickers on his personal tool box. One was visible on the outside of
`the box; the other was inside the box, but visible when the box was
`open. Dixon used the tool box and displayed both flag stickers while
`at work inside the Coburg Dairy garage. An African-American co-
`worker, Leroy Garner, confronted Dixon and informed him that he
`found the stickers racially offensive and a violation of Coburg's
`harassment policy. Dixon disagreed, maintaining that his display of
`the stickers did not violate Coburg's policies and, notwithstanding
`any policy to the contrary, that it was his constitutional right to dis-
`play the flag. Thereafter, Dixon, Garner, and Coburg attempted to
`mediate a compromise. Coburg offered to buy Dixon a new,
`unadorned tool box, allowing him to keep his previously decorated
`box for home use. Dixon responded that his heritage was "not for
`sale." In the end, Coburg insisted that the stickers be removed, and
`Dixon refused. Having reached an impasse, Coburg fired Dixon on
`September 5, 2000, on the ground that he had violated the company's
`anti-harassment policy.
`
` Dixon filed a nine-count complaint in South Carolina state court.
`Count I, titled a "Violation of Constitutional Rights," alleged that
`"Coburg violated the constitutional rights of its employee by its termi-
`nation of Plaintiff." In Count III, Dixon stated a claim for "Violation
`of Public Policy" based on S.C. Code Ann. § 16-17-560 (2002). He
`alleged that he was fired for displaying the Confederate flag, and that
`this action "constitute[d] a violation of South Carolina criminal law
`and therefore a violation of the public policy of this State." Premised
`on these same facts, Dixon articulated a claim in Count IV for retalia-
`tory discharge.
`
`3
`
`

`
` Insisting that Counts I, III, and IV raised substantial questions of
`federal law, Coburg removed the case to federal court. Dixon filed a
`motion to remand, which the district court denied. The parties then
`filed cross-motions for summary judgment. The district court granted
`Coburg's motion for summary judgment and dismissed the case. This
`appeal followed.
`
`II.
`
` Whether federal subject matter jurisdiction exists is a question of
`law that this Court reviews de novo. Mulcahey v. Organic Chemicals
`Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). The grant of a motion for
`summary judgment is also reviewed de novo. Hooven-Lewis v. Cal-
`dera, 249 F.3d 259, 265 (4th Cir. 2001).
`
`III.
`
`A.
`
` Coburg's removal to district court was based on 28 U.S.C. § 1331
`(2001), giving federal courts original jurisdiction over "all civil
`actions arising under the Constitution, laws, or treaties of the United
`States." Count I of Dixon's complaint is titled, "Violation of Constitu-
`tional Rights," and asserts a claim based upon"[t]he First Amend-
`ment to the U.S. Constitution." Dixon maintains in this count that
`"Coburg violated the constitutional rights of its employee by its termi-
`nation of Plaintiff," and he concludes, "Coburg's termination of Plain-
`tiff for display of the flag constitutes a violation of his constitutional
`rights entitling Plaintiff to an award for damages." At its core, Count
`I appears to require a determination as to whether Coburg's actions
`amount to a violation of Dixon's free speech right under the United
`States Constitution. This appearance, however, is illusory, as Dixon
`concedes that the First Amendment protects citizens only from gov-
`ernment or State interference with their rights to free speech, see
`Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982), and further con-
`cedes that Coburg Dairy is not a state actor.
`
` "[F]ederal courts are without power to entertain claims otherwise
`within their jurisdiction if they are `so attenuated and insubstantial as
`
`4
`
`

`
`to be absolutely devoid of merit'. . . ." Hagans v. Lavine, 415 U.S.
`528, 537 (1974) (internal citations omitted). At the same time, how-
`ever, "`Jurisdiction . . . is not defeated . . . by the possibility that the
`averments might fail to state a cause of action on which [a plaintiff]
`could actually recover. For it is well settled that the failure to state a
`proper cause of action calls for a judgment on the merits and not for
`a dismissal for want of jurisdiction." Id. at 542 (quoting Bell v. Hood,
`327 U.S. 678, 682 (1946)). Thus, before assuming jurisdiction over
`Dixon's case based on a supposed federal cause of action in Count I,
`we must determine if the insubstantiality doctrine deprives us of juris-
`diction to even consider this claim.
`
` In Bell v. Hood, the Supreme Court explained:
`
`The previously carved out exceptions are that a suit may
`sometimes be dismissed for want of jurisdiction where the
`alleged claim under the Constitution or federal states clearly
`appears to be immaterial and made solely for the purpose of
`obtaining jurisdiction or where such a claim is wholly
`insubstantial and frivolous.
`
`Id. at 682-83 (emphasis added). As this quotation suggests, the insub-
`stantiality doctrine is best (though not exclusively) applied in cases
`where the plaintiff has attempted to abuse Rule 8's liberal pleading
`requirements by drafting a complaint that appears on the surface,
`though not in substance, to rely upon a question of federal law. This
`reading of the rule is supported by this Circuit's decision in Lovern
`v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999), where we observed,
`"As we warned in Davis [v. Pak, 856 F.2d 648, 651 (4th Cir. 1988)],
`federal courts must guard against the litigant who frames a pretextual
`issue solely for the purpose of having a state-law claim adjudicated
`in the federal system; Article III of the Constitution forbids this prac-
`tice."
`
` The Bell Court has further commented that the insubstantiality doc-
`trine is a disfavored rule, and "[t]he accuracy of calling these dismiss-
`als jurisdictional has been questioned." 327 U.S. at 683 (citing Justice
`Holmes' ruling in The Fair v. Kohler Die and Specialty Co., 228 U.S.
`22 (1913)). In the past, we have invoked the insubstantiality doctrine
`sparingly, see Larch v. Eastern Band of Cherokee Indians, 872 F.2d
`
`5
`
`

`
`66, 68 (4th Cir. 1989) (noting that "[t]he Tribe's complaint satisfie[d]
`th[e] relatively low jurisdictional threshold imposed by the doctrine"),
`and only in cases where a plaintiff has drafted a frivolous count solely
`for the purpose of filing a claim in federal court. See Davis, 856 F.2d
`648; Lovern, 190 F.3d 648; Goldsmith v. Baltimore, 845 F.2d 61 (4th
`Cir. 1988); Holloway v. Schweiker, 724 F.2d 1102 (4th Cir. 1984).
`
` Still, the insubstantiality doctrine seeks to do more than prevent
`plaintiffs from engaging in forum shopping. More fundamentally, the
`rule ensures that federal courts assert jurisdiction solely over live
`cases and controversies. See U.S. Const. art. III, § 2. Where a claim
`is "so attenuated and insubstantial, obviously frivolous, plainly insub-
`stantial, or no longer open to discussion," there is no controversy for
`a federal court to adjudicate. Davis, 856 F.2d at 650-51 (quoting
`Hagans, 415 U.S. at 536-37). To this point, the Appellant argues,
`"[T]here are no federal causes of action available to Dixon under the
`facts of this case," an observation which is undoubtedly true. As
`stated above, Count I is not cognizable under 42 U.S.C. § 1983
`because Coburg is not a state actor. Additionally, Dixon has no claim
`under 42 U.S.C. § 1981 because there is no suggestion that he was
`treated differently by Coburg on account of his race. By conceding
`each of these points, Dixon has failed to allege any cause of action
`in Count I. Accordingly, the claim does not present us with a contro-
`versy that we might even attempt to resolve.
`
` Despite the lack of any federal claim in Count I, this Court may
`still retain jurisdiction over the remainder of the case if the state
`causes of action alleged in Counts III and IV "`necessarily depend[ ]
`on the resolution of a substantial question of federal law.'" Mulcahey
`v. Organic Chem. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994) (quoting
`Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 28
`(1983)). In Franchise Tax Board, the Supreme Court held that "unless
`it appears that some substantial, disputed question of federal law is a
`necessary element of one of the well-pleaded state claims," federal
`question jurisdiction does not exist. 463 U.S. at 13. The Fourth Cir-
`cuit has explained, "[I]f `the right set up by [a] party may be defeated
`by one construction of the constitution or law of the United States,
`and sustained by the opposite construction,' jurisdiction can be had
`in the federal courts." Ormet Corp. v. Ohio Power Co., 98 F.3d 799,
`806 (4th Cir. 1996). That is, the claim containing the federal issue
`
`6
`
`

`
`must rise or fall on the resolution of that federal issue. If federal law
`merely forms an element of a state cause of action, that may be insuf-
`ficient to give rise to federal question jurisdiction if the case actually
`turns on other, purely state-law elements of the claim. See Clark v.
`Velsicol Chemical Corp., 944 F.2d 196, 198 (4th Cir. 1991)
`("Application of the particular federal statute in this case would
`remain but an element in plaintiff's state negligence action and cannot
`give rise to federal question jurisdiction.").
`
` To prevail on Count III, Dixon would be required to show that: (1)
`he exercised a political right or privilege that is "guaranteed to every
`citizen by the Constitution and laws of the United States or by the
`Constitution and laws of this State"; and (2) he was later discharged
`for exercising that right or privilege. S.C. Code Ann. § 16-17-560.1
`The parties stipulated to all of the material facts before filing their
`respective motions for summary judgment, and Coburg concedes that
`it fired Dixon solely because he refused to remove the Confederate
`flag stickers from his tool box. Thus, causation is not an issue. The
`only question is whether the First Amendment protects Dixon's right
`to display the Confederate flag as he chose to display it.2 Accordingly,
`the claim necessarily depends upon the resolution of a question of
`federal law.
`____________________________________________________________
`
` 1 Under South Carolina law, an employer can usually discharge an
`employee "without incurring liability for good reason, no reason, or bad
`reason." Culler v. Blue Ridge Elec. Coop., Inc., 422 S.E.2d 91, 92 (S.C.
`1992). However, where the discharge of an employee violates "a clear
`mandate of public policy, a cause of action in tort for wrongful discharge
`arises." Ludwick v. This Minute of Carolina, Inc., 337 S.E.2d 213, 216
`(S.C. 1985). The state supreme court, in Culler, held that this public pol-
`icy rule applies when an employer violates S.C. Code § 16-17-560. The
`court reasoned, "We believe that Ludwick's prohibition of retaliatory dis-
`charge in violation of [a] clear mandate of public policy of this State
`extends at least to legislatively defined `Crimes Against Public Policy.'"
`Culler, 422 S.E.2d at 92-93.
`
` 2 The Free Speech Clause of the First Amendment is mirrored in article
`1, section 2 of the South Carolina Constitution, and the language of the
`state clause tracks the federal, constitutional language verbatim. As such,
`the South Carolina Supreme Court has held that its state constitution "af-
`fords the same protections as does the Federal constitution." Charleston
`Joint Venture v. McPherson, 417 S.E.2d 544, 548 n.7 (S.C. 1992).
`
`7
`
`

`
` The dissent, while conceding that "principles of federal First
`Amendment law still control the outcome of the case," would find
`that we lack jurisdiction based on a distinction "between the incorpo-
`ration of a federal question into a state statute and the mere use of fed-
`eral law principles, by way of analogy, to resolve an otherwise purely
`state-law question." Post at 26. Had the South Carolina legislature
`merely referenced federal law by way of analogy, as other states have
`done in the context of state anti-discrimination laws, see post at 26,
`or state antitrust laws, see, e.g., Natural Design, Inc. v. Rouse Co.,
`485 A.2d 663, 666 (Md. 1984) (holding that "decisions of the federal
`courts interpreting § 1 of the Sherman Act guide" the Maryland
`courts' understanding of the Maryland Antitrust Act), we would agree
`with the dissent that no federal issue would be present.
`
` However, we do not read the South Carolina statute to support such
`a distinction, and in fact, Dixon concedes that"[f]ederal law is an ele-
`ment" of his cause of action under S.C. Code Ann. § 16-17-560. (Br.
`for Appellant, at 11.) Although it may be difficult to define the exer-
`cise of a First Amendment right in the abstract, there can be no doubt
`that this is precisely the type of analysis that the South Carolina legis-
`lature has intended courts to undertake. The statute makes it unlawful
`"for a person to . . . discharge a citizen from employment or occupa-
`tion . . . because of political opinions or the exercise of political rights
`and privileges guaranteed to every citizen by the Constitution and
`laws of the United States. . . ." S.C. Code Ann. § 16-17-560 (emphasis
`added). Federal law has not merely been referenced by analogy; it has
`been wholly incorporated into the statute, and made a critical element
`of a cause of action. For Dixon to prevail, he must prove that he has
`exercised a political right protected "by the Constitution and laws of
`the United States."
`
` Reviewing the relevant South Carolina case law, we find additional
`support for this reading of the statute. In Culler v. Blue Ridge Electri-
`cal Cooperative, Inc., 422 S.E.2d 91 (S.C. 1992), the Supreme Court
`of South Carolina first recognized that a discharged employee may
`sue his employer for violation of § 16-17-560. Based on the public
`policy exception to the at-will employment doctrine, the South Caro-
`lina court held that "if Culler was discharged because he refused to
`contribute to a political action fund, he would have a cause of action
`for wrongful discharge. . . ." Id. at 93. The Culler court's straightfor-
`
`8
`
`

`
`ward analysis is illustrative of its understanding that actions based on
`§ 16-17-560 require a plaintiff simply to prove two elements: (1)
`whether the employee has articulated a political opinion or exercised
`a political right; and (2) whether the employee was discharged as a
`result.3 In Culler, the court recognized that refusing to contribute to
`the PAC would satisfy the first element, but because Culler was not
`terminated for his refusal, his claim failed at the second step. Id. at
`93.
`
` Similarly, in Moshtaghi v. The Citadel, the Court of Appeals of
`South Carolina considered the claim of an adjunct professor who
`insisted that the military college "violated public policy through
``reprisal for the exercise of rights of [Moshtaghi] protected by the
`Constitution of the State of South Carolina,'" specifically, his "consti-
`tutionally protected free speech rights" under the state constitution.
`443 S.E.2d 915, 323 (1994) (alterations in original). As in Culler, the
`court assumed that Moshtaghi could satisfy the first prong because
`"[i]t is undisputed [that] the South Carolina Constitution provides for
`freedom of speech, of assembly, and the right to petition the govern-
`ment for redress of grievances." Id. However, the court dismissed
`Moshtaghi's claim at the second stage of its analysis because the trial
`court had found that "Moshtaghi was not terminated because of his
`involvement with the Board of Visitors election controversy." Id. at
`323-24.
`
` Additionally, this Court finds persuasive the reasoning of our col-
`league, Judge Shedd, in Williams v. Strickland, No. 3:92-515-19,
`1993 WL 153915 (D. S.C. Mar. 12, 1993) (unpublished). In Williams,
`the district court considered a superficially complex ten-count com-
`plaint, alleging violations of both state and federal law. However, like
`the case currently before this Court, Williams essentially boiled down
`to a claim of wrongful discharge. Notwithstanding the presence of
`____________________________________________________________
`
` 3 The dissent misunderstands our citation to Culler, erroneously believ-
`ing that we equate Culler's articulation of a political opinion with
`Dixon's alleged exercise of a federally protected constitutional right.
`Post at 23-24. To clarify, we cite Culler, not to develop our understand-
`ing of First Amendment law, but rather, to support our reading that the
`South Carolina statute requires a plaintiff to meet the two-step test out-
`lined above.
`
`9
`
`

`
`several state-law claims, the district court exercised federal jurisdic-
`tion over the entire case, and granted the defendant's motion for sum-
`mary judgment on all counts.
`
` In Count I of her complaint, Williams asserted a violation of her
`First Amendment rights to free speech and free association, "contend-
`[ing] that she was discharged because she [was] a Democrat." Id. at
`*1-*2. Judge Shedd found that Williams had "completely failed to
`offer any competent evidence in support of this claim." Id. at *2.
`Turning to Williams' contention that she had a cause of action under
`S.C. Code Ann. § 16-17-560, the court ruled, "While Williams is cor-
`rect that she may maintain an action under Ludwick premised on the
`provision of Section 16-17-560, . . . her claim must nevertheless fail
`as a matter of law because of the Court's previous conclusion that she
`has failed to present sufficient evidence to support her claim that she
`was discharged for political reasons." Id. at *7 (citing Culler, 422
`S.E.2d at 91).
`
` In sum, like the Culler, Moshtaghi, and Williams courts, we believe
`that the South Carolina statute means exactly what it says. To support
`his claim under § 16-17-560, Dixon must first show that he exercised
`his constitutional right to free speech, and secondly, he must prove
`that he was discharged as a result. As explained above, causation is
`not an issue in dispute. Thus, this case turns solely on Dixon's allega-
`tion that his actions represented an exercise of his First Amendment
`right to free expression.
`
` Following Franchise Tax Board and its progeny, we must next
`determine whether this federal question is substantial. See Franchise
`Tax Bd., 463 U.S. at 13 (noting that "arising under" jurisdiction exists
`only if the state law claim "requires resolution of a substantial ques-
`tion of federal law") (emphasis added); Mulcahey, 29 F.3d at 151
`(quoting Franchise Tax Bd., 463 U.S. at 28). We find the question
`presented by Dixon's complaint to be substantial for three reasons.
`
` Most obviously, Dixon's free speech claim raises First Amendment
`issues that are of monumental importance. Recently, the United States
`Supreme Court reviewed the Supreme Court of Virginia's affirmance
`of a state law prohibiting cross burning because of the vital First
`Amendment concerns at stake. See Virginia v. Black, ___ U.S. ___,
`
`10
`
`

`
`123 S.Ct. 1536, 1547 (2003). Similarly, Dixon's case presents this
`Court with a difficult question as to where the outer limit of an indi-
`vidual's right to political expression might lie.
`
` Additionally, there "is an important need for uniformity in federal
`law" that supports this Court exercising jurisdiction over a state-law
`claim that necessarily turns upon an interpretation of the Bill of
`Rights. Michigan v. Long, 463 U.S. 1032, 1040 (1983).4 That is,
`where a state statute, as applied, would rest exclusively on federal
`constitutional law, uniformity concerns must be taken into account.
`See Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 347-48 (1816)
`(recognizing "the importance, and even necessity of uniformity of
`decisions throughout the whole United States, upon all subjects within
`the purview of the constitution") (emphasis in original). See also Mer-
`rell Dow Pharmaceuticals v. Thompson, 478 U.S. 804, 826 (1986)
`(Brennan, J., dissenting) (quoting Martin v. Hunter's Lessee, 14 U.S.
`(1 Wheat.), at 347-48).
`
` Lastly, the substantiality of these factors takes on additional impor-
`tance because of a possible conflict with our Title VII jurisprudence.
`Pursuant to Title VII, Coburg maintains an obligation to furnish a
`harassment-free workplace. See, e.g., Faragher v. Boca Raton, 524
`U.S. 775, 788 (1998) (discussing the circumstances in which "an
`employer will be liable for a discriminatory environment that is other-
`wise actionably abusive"). Coburg claims that its actions were prem-
`ised on its anti-harassment policy, and that it fired Dixon following
`a racial harassment allegation initiated by one of Dixon's co-workers.
`____________________________________________________________
`
` 4 In Long, the Supreme Court ruled, in another context, that it had juris-
`diction to consider a defendant's challenge of his state-court conviction
`on Fourth Amendment grounds when the "state court decision fairly app-
`ear[ed] to rest primarily on federal law, or to be interwoven with the fed-
`eral law." 463 U.S. at 1040-41. The dissent mistakenly suggests that we
`cite Long to buttress our conclusion that the federal issue in the present
`case is sufficiently substantial to support a finding of federal question
`jurisdiction. The jurisdictional inquiry that we undertake is, as the dissent
`explains, unrelated to the jurisdictional question faced by the Supreme
`Court in Long. See post at 29 n.5. However, Long's statement that there
`"is an important need for uniformity in federal law," is relevant to both
`analyses. Our citation to Long is simply for the purpose of acknowledg-
`ing this fact.
`
`11
`
`

`
`Dixon argues that despite these Title VII concerns, South Carolina
`law should afford him far-reaching free speech protection. Dixon's
`suggested application of South Carolina law, of course, would put
`state and federal law directly in conflict with each other. For the
`employer, this conflict would mean either firing Dixon and facing a
`wrongful discharge claim, or ignoring the harassment complaint and
`facing Title VII liability. Plainly, our interest in resolving this issue
`is of paramount importance and further justifies our exercise of juris-
`diction based on Count III.
`
` Similarly, Count IV states a claim for "Retaliatory Discharge"
`based on Coburg's alleged attempt "to control the content of Plain-
`tiff's right of free speech through constant and repeated efforts to get
`him to abandon his constitutionally protected rights of free speech by
`demanding that he remove the [Confederate] flag from his tool box
`and then, ultimately, terminating him for exercise of that same right.
`. . ." Essentially, Count IV rephrases the charge in Count III. As
`explained above, Coburg concedes that it pressured Dixon to remove
`the Confederate flag stickers from his tool box. Coburg further admits
`that it fired Dixon solely because he refused to adhere to this request.
`All that remains disputed, therefore, is whether Dixon's decision to
`display the Confederate flag was, as Dixon asserts, an exercise of "his
`constitutionally protected rights of free speech. . . ."
`
` In sum, removal of Counts III and IV was proper pursuant to 28
`U.S.C. § 1441(a) (2001), and removal of the supplemental state-law
`claims was proper pursuant to 28 U.S.C. § 1441(c) (2001).
`
`B.
`
` Having determined that removal was permissible, this Court now
`considers whether the district court erred in dismissing Counts III and
`IV at the summary judgment stage.5
`
` In Count III, Dixon alleges a violation of S.C. Code Ann. § 16-17-
`560, which provides the basis of a claim for wrongful discharge if an
`____________________________________________________________
`
` 5 Count I, as explained above, is so frivolous and insubstantial that it
`fails to raise a federal question. Accordingly, that claim must be dis-
`missed without prejudice.
`
`12
`
`

`
`employee is terminated for one of three reasons: (1) an exercise of
`"political rights" protected under federal law; (2) an exercise of "polit-
`ical rights" protected under state law; or (3) because of an individual's
`"political opinions."6 Dixon does not allege a violation of the entire
`statute. Rather, he claims that he was discharged "for display of the
`Confederate flag," and he maintains that his employment was termi-
`nated because of his exercise of his constitutional right to free speech.7
`Nowhere does Dixon claim that he was discharged because of his
`"political opinions." Furthermore, this omission appears to have been
`intentional. Dixon notes that another co-worker, William Reid,
`"worked in the garage and also had a Confederate flag on his tool-
`box." (Br. for Appellant at 5.) Unlike Dixon, Reid agreed to remove
`his decal and continue working at Coburg. Both Dixon and Reid were
`motivated to display the flag because of their shared "political opin-
`ions." Neither, however, were fired because of their opinions about
`the flag issue. Rather, Dixon was discharged because of his alleged
`exercise of his First Amendment right to display the flag. As
`explained in the joint stipulation of facts, Coburg first asked Dixon
`to remove the Confederate flag from his tool box. When Dixon
`resisted, Coburg offered to purchase him a new tool box for the
`garage, suggesting that Dixon could keep his flag-adorned tool box
`for home use. Therefore, Dixon could have kept his job, not by
`changing his opinions, but by altering how he chose to express them.
`
` The crux of the claim is whether Dixon's decision to display the
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`
` 6 As explained above, violation of this statute will support a civil cause
`of action for wrongful discharge under the public policy exception to the
`at-will employment doctrine. See Culler v. Blue Ridge Elec. Co-op., 422
`S.E. 2d 91 (S.C. 1992).
`
` 7 S.C. Code Ann. § 16-17-560 states that it is "unlawful to discharge a
`citizen from employment because of the exercise of political rights and
`privileges guaranteed under t