Thomas Cannon v. Village of Bald Head Island , 891 F.3d 489 ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1847
THOMAS M. CANNON; JESSE M. CONNER; DONALD M. KOONS;
NICHOLAS M. TERRELL,
Plaintiffs – Appellees,
v.
VILLAGE OF BALD HEAD ISLAND, NORTH CAROLINA; CALVIN R.
PECK, JR., in his individual capacity; CAROLINE MITCHELL, in her individual
capacity,
Defendants – Appellants.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Malcolm J. Howard, Senior District Judge. (7:15-cv-00187-H)
Argued: February 28, 2018 Decided: May 30, 2018
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
Dismissed in part, affirmed in part, and reversed and remanded in part by published
opinion. Judge Wynn wrote the opinion, in which Judge Duncan and Judge Agee joined.
ARGUED: Norwood Pitt Blanchard, III, CROSSLEY MCINTOSH COLLIER
HANLEY & EDES PLLC, Wilmington, North Carolina, for Appellants. Bradley
Andrew Coxe, HODGES COXE POTTER & PHILLIPS, LLP, Wilmington, North
Carolina, for Appellees. ON BRIEF: Samuel B. Potter, HODGES COXE POTTER &
PHILLIPS, LLP, Wilmington, North Carolina, for Appellees.
WYNN, Circuit Judge:
In August 2014, the Village of Bald Head Island, N.C. (“Bald Head”), fired
Plaintiffs Thomas Cannon, Jesse Conner, Donald Koons, and Nicholas Terrell
(collectively, the “Officers”)—who worked for Bald Head’s Department of Public Safety
(the “Department”)—for the content of messages the Officers sent in a private text-
message chain. Approximately one year later, the Officers filed suit against Bald Head,
its town manager Calvin Peck (“Peck”), and its director of public safety Dr. Caroline
Mitchell (“Mitchell,” and collectively with Bald Head and Peck, “Defendants”), asserting
that the terminations violated their First Amendment rights, and that subsequent public
disclosures by Bald Head explaining the bases for the terminations constituted
defamation and violated the Officers’ Fourteenth Amendment rights to procedural due
process. After the parties completed discovery, Peck and Mitchell, who were responsible
for the firings and subsequent disclosures, unsuccessfully moved to dismiss the Officers’
constitutional claims on the basis of qualified immunity.
For the reasons that follow, we affirm the district court’s denial of qualified
immunity regarding the alleged due process violations. However, we conclude that the
district court erred in holding that Peck and Mitchell were not entitled to qualified
immunity as to the Officers’ First Amendment retaliation claims. In particular, the
Officers’ evidence does not establish beyond debate that the Officers’ interest in speaking
freely outweighed the Department’s interest in maintaining order and discipline.
Accordingly, we affirm in part, reverse in part, and remand the case to the district court
for further proceedings consistent with this opinion.
2
I.
A.
The Department combines Bald Head’s firefighting, paramedic, and police
departments in a single multi-disciplinary group of emergency personnel. From July 25
to August 15, 2014, the Officers engaged in a group text-message chain with several
other members of the Department. The group text messages discussed a wide variety of
topics. A number of messages concerned a local news article, which was published on
August 6, in which Mitchell reportedly said that all but two officers in the Department
were certified to perform the four emergency services for which the Department is
responsible: firefighting, emergency medicine, water rescue, and law enforcement. Many
of the Officers questioned the veracity of that claim, identifying a number of Department
employees who lacked one or more of the certifications. And several messages expressed
concern that the Department was providing inadequate training to public safety officers.
See J.A. 322 (Officer Conner expressing concern that staff is not “doing first in engine
drills”); id. (Officer Terrell expressing concern that Department official responsible for
training only sends officers to law enforcement training, not the training required for the
other services provided by the Department).
Messages in the chain also questioned certain officers’ competence to perform
various emergency services. For example, Officer Conner expressed concern about the
Department’s lack of “worr[y] that people who claim to be ems can’t take a blood
pressure” or that employees engaged in firefighting “have no real fire experience” and
had not attended “a controlled training burn.” Id. In addition to the messages
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questioning Mitchell’s representations regarding the Department’s training, several other
messages questioned the Department’s leadership. For example, Officer Terrell
questioned the decision to promote another officer, Robin Wallace, to lieutenant,
suggesting that Wallace lacked the ability to form a “plan of attack” to respond to a fire,
medical emergency, or water rescue call. J.A. 342.
A number of the text messages also discussed non-safety-related topics, including
workout tips, sexual gibes, and former coworkers. Several messages joked about
hypothetical situations in “Colorado,” which referred to Mitchell, who previously lived in
Colorado. J.A. 324–25. And one message, which was sent by an officer who is not a
party to this action, included an image of a police officer with the meme: “Who am I?
I’m the dude, playing a dude, disguised as another dude”—a reference to the movie
Tropic Thunder. J.A. 340. That message elicited no response from anyone else on the
text-message chain.
Mitchell learned of the text-message chain during a meeting with another public
safety officer, Nick Hiatt (“Hiatt”), who also participated in the chain. There is a dispute
of fact as to why Hiatt disclosed the text-message chain to Mitchell. According to
Mitchell, Hiatt showed her the text messages while lodging a complaint that the Officers
were acting unprofessionally and engaging in “harass[ment].” J.A. 209–10. By contrast,
Hiatt averred that he “never made a complaint about the text messages,” J.A. 307, and
that he “did not indicate to . . . Mitchell that [he] was offended, sexually harassed, [or]
upset, or that [he] felt that the work environment was hostile or offensive,” J.A. 304.
Rather, Hiatt further averred that he showed Mitchell the text messages in order to
4
demonstrate that “management and the rank and file employees and public safety officers
did not have a good relationship; did not have good communication; did not have clear
understandings of job duties and responsibilities; did not all have proper training; and
[that he thought] this affected the public’s safety.” J.A. 303.
After obtaining a copy of the text-message chain, Mitchell consulted other
members of the Department’s command staff. Several members of the command staff
expressed concern that certain messages in the chain seemed to derogatorily joke about
Mitchell’s sexual orientation, most notably the Tropic Thunder message. After receiving
the command staff’s input, Mitchell showed Peck the text-message chain and
recommended terminating the Officers and one of their coworkers.
Peck agreed with Mitchell’s recommendation to terminate the officers, largely
because Peck “felt that the [text-message] conversation displayed a clear tone of hostility
and insubordination towards . . . Mitchell and the other members of the command staff.”
J.A. 61; see also J.A. 164 (“[The Officers] were terminated because they were jerks. . . .
[T]hey were disrespectful . . . of the chain of command.”). Mitchell testified that she
recommended terminating the Officers solely because she did not “want [the Officers] to
be part of our [Department’s] team.” J.A. 220. She further testified that she did not
make any other specific recommendation as to why the Officers should be fired.
After Peck and Mitchell decided to terminate the Officers, Bald Head’s human
resources director, Karen Williams, provided Peck and Mitchell with potentially relevant
sections of Bald Head’s personnel policy. Williams testified that Peck and Mitchell then
“picked which [provisions in the personnel policy] applied to which officers.” J.A. 403.
5
After Peck and Mitchell “[c]onveyed those [choices] to [Williams], [Williams] drafted
the [termination] letters based on [Peck and Mitchell’s] direction.” Id.
On August 28, 2014, Peck, Mitchell, and another member of the Department’s
command staff met with Officers Conner, Koons, and Terrell, and informed each Officer
that he had been terminated by an immediate, final decision for participating in the text-
message chain. Officer Cannon was unable to attend an in-person meeting, and therefore
was fired by phone instead.
During the meetings, the Department provided each Officer with a termination
letter listing various Bald Head policy violations. Each officer was terminated for
“discourteous treatment of other employees” and “inappropriate electronic
communications.” J.A. 147–50. Officers Cannon, Koons, and Terrell also were
terminated for “harassment.” J.A. 147, 149, 150. And Officers Koons and Terrell were
terminated for “sexual harassment” as well. J.A. 149–50. Each letter additionally
indicated that the Officers’ actions qualified as “detrimental personal conduct,” which “is
. . . grounds for immediate termination” under Bald Head policy. J.A. 147–50. The day
after the Officers’ termination, local media requested copies of the letters, which
Williams turned over because she believed doing so was necessary to comply with North
Carolina’s Public Records Act.
Several hours after the Officers’ termination, Peck sent an email to all of Bald
Head’s full-time employees and all of the Department’s part-time employees, which
stated that “five officers have been released from employment . . . based on violations of
[Bald Head’s] policies pertaining to harassment, sexual harassment, discourteous conduct
6
and inappropriate electronic communications.” J.A. 451. The email did not differentiate
between each Officer’s alleged policy violations. Additionally, Peck included the full
text of Bald Head’s policy regarding “[d]etrimental personal conduct”—one of the
violations listed in all the Officers’ termination letters—which is defined as “behavior of
such a serious detrimental nature that the functioning of [Bald Head] may be or has been
impaired; the safety of persons or property may be or have been threatened; or the laws of
any government may be or have been violated.” Id.
The next day, August 29, 2014, Mitchell filled out an affidavit of separation, or
“Form F-5B,” regarding each Officer’s termination and, as required by law, submitted
them to the North Carolina Criminal Justice Education and Training Standards
Commission. Notwithstanding that the termination letters offered different grounds for
terminating several of the Officers, on each Officer’s Form F-5B Mitchell provided the
same reason for termination: that “[a] complaint was filed with this agency . . . involving
inappropriate electronic communications that created a hostile work environment in
violation of [Bald Head] policy.” J.A. 268–75.
That same day, Officers Conner, Koons, and Terrell each sent a grievance letter to
Peck, stating that “the grounds for which I was terminated were unfair and . . . my job
performance and personal conduct were not accurately represented.” J.A. 278–80. Peck
responded that “[t]here is no right to a grievance or appeal process.” J.A. 300–02.
7
B.
Approximately one year after the firings, on August 26, 2015, the Officers filed
the instant suit alleging, among several other claims, that Defendants violated (1) the
First Amendment, by firing the Officers for engaging in speech on matters of public
concern; (2) the Fourteenth Amendment, by failing to afford the Officers due process
before publicly disclosing information that placed a stigma on their reputations, and (3)
state law, by defaming the Officers.
On October 7, 2016, Peck and Mitchell moved for summary judgment, arguing
that qualified immunity barred the Officers’ First Amendment retaliation and Fourteenth
Amendment due process claims. Defendants also moved for summary judgment on the
Officers’ defamation claims, on grounds that the Officers’ evidence failed to create a
triable issue of fact as to whether Defendants acted with actual malice in disclosing
information regarding the Officers’ termination. Peck and Mitchell also subsequently
argued that their recent offer to conduct a name-clearing hearing mooted the officers’
request for injunctive relief.
In an opinion and order entered June 22, 2017, the district court granted summary
judgment to Defendants on Officer Cannon’s First Amendment retaliation claim, but held
that qualified immunity did not bar the remaining First and Fourteenth Amendment
claims. Cannon v. Vill. of Bald Head Island, N.C., No. 7:15-CV-187, 2017 WL 2712958,
at *20 (E.D.N.C. June 22, 2017). The district court also declined to dismiss the Officers’
defamation claims and request for injunctive relief. Id. Defendants timely appealed
those decisions.
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II.
On appeal, Defendants assert that the district court erred in (A) denying Peck and
Mitchell qualified immunity on the Officers’ First Amendment retaliation claims; (B)
denying Peck and Mitchell qualified immunity on the Officers’ Fourteenth Amendment
claims; (C) denying Defendants’ summary judgment motion as to the Officers’
defamation claims; and (D) refusing to dismiss as moot the Officers’ request for
injunctive relief regarding their Fourteenth Amendment claims. Given that this appeal
arises from the district court’s denial of summary judgment, we review each issue de
novo, viewing all facts and reasonable inferences therefrom in favor of the Officers, as
the non-moving party. Hunter v. Town of Mocksville, N.C., 789 F.3d 389, 395–96 (4th
Cir. 2015).
As noted above, Defendants’ first two arguments require this Court to determine
whether Peck and Mitchell are entitled to qualified immunity. “[Q]ualified immunity
protects government officials ‘from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To overcome qualified
immunity, a plaintiff must show “(1) that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
For a right to be clearly established, there need not be “a case directly on point, but
existing precedent must have placed the statutory or constitutional question beyond
9
debate.” Id. at 741. Put differently, “a constitutional right is clearly established when ‘its
contours [are] sufficiently clear that a reasonable official would understand that what he
is doing violates that right.’” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292,
313 (4th Cir. 2006) (alteration in original) (quoting Hope v. Pelzer, 536 U.S. 730, 739
(2002)).
A.
Defendants first argue that the district court erred in denying Peck and Mitchell
qualified immunity from the Officers’ First Amendment retaliation claim. As
government employees, the Officers did “not relinquish all First Amendment rights
otherwise enjoyed by citizens just by reason of [their] employment.” City of San Diego
v. Roe, 543 U.S. 77, 80 (2004) (per curiam). That being said, “a governmental employer
may impose certain restraints on the speech of its employees, restraints that would be
unconstitutional if applied to the general public.” Id.When, as here, a government employee claims that he was terminated “because of
his speech, we use a three-prong test to determine if the employee’s rights under the First
Amendment were violated.” Crouse v. Town of Moncks Corner, 848 F.3d 576, 583 (4th
Cir. 2017), cert. denied, 138 S. Ct. 470 (2017). In particular, we must determine: “(1)
whether the public employee was speaking as a citizen upon a matter of public concern or
as an employee about a matter of personal interest; (2) whether the employee’s interest in
speaking upon the matter of public concern outweighed the government’s interest in
providing effective and efficient services to the public; and (3) whether the employee’s
speech was a substantial factor in the employee’s termination decision.” McVey v. Stacy,
10
157 F.3d 271, 277–78 (4th Cir. 1998). “Because the first two prongs of the test are
questions of law, an employer is entitled to qualified immunity if either prong cannot be
resolved under clearly established law.” Crouse, 848 F.3d at 583.
Peck and Mitchell do not dispute that the Officers’ speech was a “substantial
factor” in their termination. Rather, Peck and Mitchell argue that at the time of the
Officers’ termination, it was not clearly established that the statements in the Officers’
text-message chain amounted to speech on a “matter of public concern,” and, even if the
text-message chain included speech on a matter of public concern, it was not clearly
established that the Officers’ interest in engaging in such speech outweighed Defendants’
countervailing interest in order and discipline. Because ultimately we agree with
Defendants’ latter argument, we assume without deciding that the Officers’ speech
addressed matters of public concern.
In addressing Defendants’ latter argument, we must determine whether it was
clearly established that the Officers’ interest in First Amendment expression outweighed
Defendants’ interest in maintaining order and discipline within the Department. See
Pickering v. Bd. of Educ. of Twp. High School Dist. 205, 391 U.S. 563, 568 (1968)
(holding that in First Amendment retaliatory discharge case, a court must balance “the
interests of the [public employee], as a citizen, in commenting on matters of public
11
concern and the interest of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees”). 1
In analyzing that question, “‘we must take into account the context of the
employee’s speech’ and ‘the extent to which it disrupts the [Department’s] operation and
mission.’” Ridpath, 447 F.3d at 317 (quoting McVey, 157 F.3d at 278). To guide our
inquiry, we have identified the following relevant factors:
whether a public employee’s speech (1) impaired the maintenance of
discipline by supervisors; (2) impaired harmony among coworkers; (3)
damaged close personal relationships; (4) impeded the performance of the
public employee’s duties; (5) interfered with the operation of the
institution; (6) undermined the mission of the institution; (7) was
communicated to the public or to coworkers in private; (8) conflicted with
the responsibilities of the employee within the institution; and (9) abused
the authority and public accountability that the employee’s role entailed.
Id. (citing McVey, 157 F.3d at 278); see also id. at 317 n.28 (noting that another relevant
factor may be “the value of the employee’s speech to the public”).
As the multi-factorial test suggests, we have recognized that Pickering’s
“particularized balancing . . . is subtle [and] difficult to apply.” Cromer v. Brown, 88
F.3d 1315, 1326 (4th Cir. 1996) (internal quotation marks omitted). “[B]ecause of the
‘sophisticated balancing’ involved in First Amendment questions, ‘only infrequently will
it be clearly established that a public employee’s speech on a matter of public concern is
constitutionally protected.’” Ridpath, 447 F.3d at 320 (quoting McVey, 157 F.3d at 277).
1
Because we conclude it was not clearly established that the Officers’ interest in
speaking outweighed the Defendants’ interests in maintaining discipline, we need not—
and thus do not—address whether the Pickering balancing favored the Officers.
12
That said, on several occasions we have concluded the interests weighed so heavily in a
discharged employee’s favor that the employee’s right to speak on a matter of public
concern was clearly established at the time of his termination. See id. at 320–21; Cromer,
88 F.3d at 1327.
Acknowledging that the fact-specific nature of the Pickering inquiry often leads
courts to conclude that a defendant is entitled to qualified immunity from a First
Amendment retaliation claim, the district court nonetheless held that this Court’s
opinions in Cromer and Ridpath clearly established that the balance of interests weighed
in the Officers’ favor. Cannon, 2017 WL 2712958, at *15–16. Cromer involved a police
department that demoted, and later terminated, a black police officer after the officer
signed on to an anonymous letter alleging, among other claims, that the department
leadership displayed “a High level of insensitivity toward Black officers,” followed
“certain unwritten policies in the department [that] were inhibit[ing] the advancement of
Black officers,” and otherwise subjected black officers to unequal treatment, thereby
posing a risk to public safety. 88 F.3d at 1320 (second alteration in original) (internal
quotation marks omitted). This Court concluded that the officer’s interest in raising
concerns about discrimination within the department “merged” with the public’s
“substantial” interests in having a police force free of broad-based discrimination, and
therefore “weigh[ed] heavily” in the officer’s favor. Id. at 1327. By contrast, we held
that, under the facts of the case, the police department’s asserted interests in “discipline,
morale and good working relationships” warranted “little or no” weight. Id. at 1329. In
finding that those interests warranted little to no weight, we emphasized that “[t]he letter
13
was not insubordinate or rebellious in tone, and there was no public display of
disobedience or protest,” and that the letter had little impact on office morale, which “was
already low.” Id. at 1328.
There are several material differences between the instant case and Cromer that
preclude Cromer from clearly establishing that the balance of interests weighs in the
Officers’ favor here. To begin, unlike the letter at issue in Cromer—which both aspired
to bring to the police department’s leadership concerns about discriminatory treatment
and made specific suggestions about how the department could improve its treatment of
black officers, see id. at 1320–21—the Officers here did not voice their concerns to
Department leadership, nor did the text messages seek to effect change in the Department
or otherwise rectify the safety deficiencies. Additionally, unlike the letter at issue in
Cromer, the text-message chain included messages that arguably were “insubordinate or
rebellious.” Id. at 1328. In particular, the text-message chain included messages that
suggested an officer had been promoted in return for providing sexual favors, messages
that questioned Mitchell’s truthfulness and leadership, and messages that questioned the
competency of a recently promoted co-worker. Cannon, 2017 WL 2712958, at *2–5.
Several Officers replied favorably to these messages. And another message in the chain,
which was not sent by a Plaintiff, also joked about Mitchell’s sexual orientation. Id. at
*5. This Court previously has recognized that, even when, as here, employee speech
serves a “limited first amendment interest,” public employers need not “tolerate
associated behavior that they reasonably believed was disruptive and insubordinate.”
Dwyer v. Smith, 867 F.2d 184, 194 (4th Cir. 1989). These differences have a sufficiently
14
significant impact on the balancing equation such that we cannot say that Cromer clearly
established that the balance of interests weighed in the Officers’ favor.
Ridpath, which addressed qualified immunity in the context of a motion to
dismiss, is even more factually and legally dissimilar. There, a public university relieved
its athletics compliance director of teaching duties, allegedly because, during a National
Collegiate Athletics Association (“NCAA”) investigation, the compliance director
brought to light violations of NCAA rules by the university and questioned the
university’s handling of those violations. Ridpath, 447 F.3d at 317. We concluded that
“NCAA rules violations by a prominent sports program at a major public university, and
the nature of the university’s handling of such allegations, are matters of great social,
political, or other interest to a community.” Id. (internal quotation marks omitted).
Furthermore, we emphasized that nothing in the complaint indicated that the compliance
director’s “comments impaired the maintenance of discipline, hurt workplace morale, or
constituted an abuse of his position.” Id. at 318. Accordingly, we concluded that the
compliance director’s “allegations warrant the inference that his free speech interests
outweigh the detrimental effect.” Id.For several reasons, Ridpath did not clearly establish that the Pickering balancing
weighs in the Officers’ favor here. First, Ridpath involved a motion to dismiss, not a
motion for summary judgment. Accordingly, Ridpath assessed the Pickering balancing
in absence of any evidence rebutting the alleged lack of impact on workplace discipline
and morale. Id. By contrast, evidence adduced during discovery in this case, such as the
text-message chain, which included messages that were arguably insubordinate and
15
discriminatory, suggested that the messages adversely impacted discipline. See Cannon,
2017 WL 2712958, at *2–5; see also J.A. 303 (Hiatt averring that he showed the text-
message chain to Mitchell in part to demonstrate that “management and the rank and file
employees and public safety officers did not have a good relationship [and] did not have
good communication”). Additionally, whereas Ridpath involved a university employee,
the instant case involves public safety officers. This Court has recognized on several
occasions that “police officials are entitled to impose more restrictions on speech than
other public employers because a police force is ‘“paramilitary”—discipline is
demanded, and freedom must be correspondingly denied.’” Brickey v. Hall, 828 F.3d
298, 304 (4th Cir. 2016) (quoting Maciariello v. Sumner, 973 F.2d 295, 300 (4th Cir.
1992)). Taken together, these differences preclude Ridpath from constituting clearly
established law regarding the outcome of the particularized balancing that Pickering
demands under the facts of this case.
Accordingly, neither Cromer nor Ridpath rendered it “beyond debate,” al-Kidd,
563 U.S. at 741, that the balance of interests weighs in the Officers’ favor here. We
therefore reverse the district court’s determination that Peck and Mitchell were not
shielded by qualified immunity from the Officers’ First Amendment retaliation claims.
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B.
We now turn to the district court’s denial of qualified immunity to Peck 2 regarding
the Officers’ due process claims, i.e., that Peck violated the Fourteenth Amendment by
failing to afford the Officers adequate process before publicly disclosing the reasons for
their discharge. Public employees, even when lawfully discharged, enjoy the “freedom to
take advantage of other employment opportunities.” Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 573 (1972). This includes the right to be “free from arbitrary
restrictions upon the opportunity for other gainful employment stemming from the
reasons voluntarily given by government for lawfully terminating . . . at-will public
employment.” Johnson v. Morris, 903 F.2d 996, 999 (4th Cir. 1990) (alteration in
original) (quoting Boston v. Webb, 783 F.2d 1163, 1167 (4th Cir. 1986)). “‘[W]here a
person’s good name, reputation, honor, or integrity is at stake because of what the
government is doing to him,’” Sciolino v. City of Newport News, 480 F.3d 642, 646 (4th
Cir. 2007) (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)), the due
process requirements of “notice and opportunity to be heard are essential.”
Constantineau, 400 U.S. at 437. Accordingly, as to public employees, “a Fourteenth
Amendment ‘liberty interest is implicated by public announcement of reasons for an
employee’s discharge.’” Sciolino, 480 F.3d at 645–46 (quoting Johnson, 903 F.2d at
999).
2
Although Peck and Mitchell together argue they are entitled to qualified
immunity regarding the Officers’ due process claims, below Mitchell argued that she was
entitled to qualified immunity solely regarding the Officers’ First Amendment claims.
(Continued)
17
There are two components to a claim that a governmental employer violated a
former employee’s Fourteenth Amendment rights by publicly disclosing the reasons for
the employee’s discharge. See Segal v. City of N.Y., 459 F.3d 207, 213 (2d Cir. 2006).
First, the employee must establish that he has been deprived of a liberty interest, and does
so by demonstrating that the charges against him by his governmental employer: “(1)
placed a stigma on his reputation; (2) were made public by the employer; (3) were made
in conjunction with his termination or demotion; and (4) were false.” Sciolino, 480 F.3d
at 646 (citing Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 n.5 (4th Cir.
1988)).
Second, the employee “must demonstrate that [his] liberty was deprived without
due process of law.” Segal, 459 F.3d at 213. To that end, the Supreme Court has
recognized that, when a governmental employer places an employee’s reputation “at
stake” by publicly disclosing defamatory charges, “notice and opportunity to be heard are
essential.” See Roth, 408 U.S. at 573 (quoting Constantineau, 400 U.S. at 437). Such a
hearing allows a former employee “to ‘clear [his] name’ against [the] unfounded
See Cannon et al. v. Vill. of Bald Head, 7:15-cv-00187-H, ECF No. 47, at 8–10. The
district court therefore only addressed Peck’s entitlement to qualified immunity regarding
the Officers’ due process claims. Cannon, 2017 WL 2712958, at *17, *19. For these
reasons, we decline to consider Mitchell’s qualified immunity arguments for the first time
on appeal, including those regarding the Forms F-5B she filled out and filed with the
North Carolina Criminal Justice Education and Training Standards Commission. See,
e.g., CoreTel Va., LLC v. Verizon Va., LLC, 808 F.3d 978, 988 (4th Cir. 2015) (“[I]f a
party wishes to preserve an argument for appeal, the party must press and not merely
intimate the argument during the proceedings before the district court.”).
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charges.” Johnson, 903 F.2d at 999 (quoting Boston, 783 F.2d at 1167). In the context of
a claim that a governmental defendant violated a former employee’s Fourteenth
Amendment rights by publicly disclosing the reasons for the employee’s discharge, as
here, this Court has held that this opportunity to be heard “must be granted at a
meaningful time.” Sciolino, 480 F.3d at 653 (quoting Armstrong v. Manzo, 380 U.S. 545,
552 (1965)). This is because, as we further held, “[a]n opportunity to clear your name
after it has been ruined by dissemination of false, stigmatizing charges is not
‘meaningful.’” Id. (emphasis added).
With this legal framework in mind, we now must determine (1) whether, under
clearly established law, the Officers were deprived of a protected liberty interest and (2)
if so, whether, under clearly established law, the Officers were deprived of that interest
without due process of law.
1.
To determine whether the Department deprived the Officers of a protected liberty
interest, we first must determine whether the challenged disclosures “placed a stigma on
[the Officers’] reputation[s].” Id. at 646. For over thirty years, this Court has held that a
governmental disclosure places a stigma on a former employee sufficient to give rise to a
liberty interest claim if it “implies ‘the existence of serious character defects such as
dishonesty or immorality.’” Ridpath, 447 F.3d at 308 (quoting Robertson v. Rogers, 679
F.2d 1090, 1092 (4th Cir. 1982)); accord Cox v. N. Va. Transp. Comm’n, 551 F.2d 555,
558 (4th Cir. 1976).
19
Here, the Officers’ termination letters and the email to all Bald Head employees
regarding the Officers’ termination included allegations of “harassment,” “sexual
harassment,” and “detrimental personal conduct.” Cannon, 2017 WL 2712958, at *17.
As explained in the email to Bald Head employees, Bald Head’s personnel policy manual
provides that “[d]etrimental personal conduct” is “behavior of such a serious detrimental
nature that the functioning of [Bald Head] may be or has been impaired; the safety of
persons or property may be or has been threatened; or the laws of any government may
be or have been violated.” J.A. 451. Accordingly, “harassment,” “sexual harassment,”
and “detrimental personal conduct” amount to “significant character defects,” such as
“immorality,” Ridpath, 447 F.3d at 309, and therefore stigmatize the Officers’ reputation
in a constitutionally cognizable manner. Additionally, the Officers’ evidence shows that
after the Department released the relevant documents, each Officer either had difficulty
securing a job or accepted a job with less significant responsibilities and lower pay,
thereby creating a reasonable inference that the claims in the termination letters did, in
fact, place a stigma on the Officers’ reputations with prospective employers.
Peck argues that the disclosures did not impose a constitutionally cognizable
“stigma” on the Officers’ reputations because the allegations in the letters did not
“effectively foreclose [the Officers] from finding future public employment.”
Appellants’ Br. 40–41 (noting that, as a matter of fact, the Officers later “secured . . .
employment”). But in Sciolino this Court held that “[a] public employer who fires . . . an
employee in a manner that sullies the employee’s good name and restricts his future
employment opportunities deprives him of important liberty interests protected by the
20
Fourteenth Amendment.” 480 F.3d at 649 (emphasis added). Likewise, in Ledford v.
Delancey this Court recognized a liberty interest claim based on the inclusion of
allegedly defamatory charges in an employee’s personnel file when the charges
“impaired his ability to procure other employment.” 612 F.2d 883, 885, 886–87 (4th Cir.
1980) (emphasis added). And in Ridpath, this Court held that a demoted public employee
stated a Fourteenth Amendment liberty interest claim, notwithstanding that the employee
continued to hold public employment at the time he brought the claim. See 447 F.3d at309–10. Accordingly, this Court does not—and has not—required that a disclosure
“effectively foreclose” future public employment for the disclosure to be actionable
under the Fourteenth Amendment.
This Court decided Sciolino, Ledford, Ridpath, and the other cases cited above
years before the Department discharged the Officers and disclosed the grounds for their
termination. Accordingly, under our qualified immunity analysis, it was clearly
established at the time of the disclosures that the disclosed allegations would place a
constitutionally cognizable stigma on the Officers’ reputations.
Second, we turn to the liberty interest requirement “that the charges against [the
Officers] . . . were made public by the employer.” Sciolino, 480 F.3d at 646. In Sciolino,
this Court held that to satisfy the public disclosure requirement “an employee must allege
(and ultimately prove) a likelihood that prospective employers (i.e., employers to whom
he will apply) or the public at large will inspect the [stigmatizing] file.” Id. at 650.
The district court found—and we agree—that, under the Sciolino standard, Peck
made public the charges against the Officers in several ways, including by sending the
21
Officers’ termination letters to the news media and sending the email to all full-time Bald
Head employees and part-time Department personnel stating that the Officers were
terminated for “harassment,” “sexual harassment,” and “detrimental personal conduct.”
Cannon, 2017 WL 2712958, at *17–18.
Peck argues that, at the time of the Officers’ discharge, this Circuit’s precedent did
not clearly establish that Defendants made the charges “public” because “the North
Carolina Public Records Act and N.C. Gen. Stat. § 160A-168(b)(11) required
[Defendants] to produce [the Officers’] termination letter[s],” rendering the disclosures
non-“voluntary” and thereby not in contravention of due process. Appellants’ Br. 40.
We disagree. In particular, Peck’s voluntariness argument applies to the disclosure of the
termination letters to the media only. Accordingly, even if Peck is correct that it was not
clearly established that the disclosure to the media of the termination letters amounted to
a liberty interest deprivation, it would in no way preclude the Officers’ Fourteenth
Amendment claims from proceeding against Peck based on the email he voluntarily
disseminated to all Bald Head employees. Additionally, there is no dispute that
Defendants placed the termination letters in the Officers’ personnel files, meaning that
any prospective employer who sought and received the Officers’ personnel files would
receive the termination letters.
Recall that Sciolino held that a discharged employee must demonstrate “a
likelihood that prospective employers (i.e., employers to whom he will apply) or the
public at large will inspect the [stigmatizing] file.” Sciolino, 480 F.3d at 650 (emphasis
added). Likewise, Ledford established that discharged governmental employees, like the
22
Officers, have “a right that [their] personnel file contain no substantially false
information with respect to [their] work performance or the reasons for [their] discharge
when that information is available to prospective employers.” 612 F.2d at 887 (emphasis
added).
This Court decided Sciolino and Ledford years before Defendants discharged the
Officers and disclosed the termination letters and sent the email regarding the
terminations to all Bald Head employees. Accordingly, notwithstanding Peck’s
disclosure to the media of the Officers’ termination letters, the availability upon request
of those same letters from the Officers’ personnel file may give rise to a constitutionally
cognizable public disclosure. Sciolino, 480 F.3d at 650. And, regardless, the district
court was correct in concluding that “Peck’s email to all [Bald Head] employees and part-
time staff of the department of public safety was voluntarily sent without any request for
the information.” Cannon, 2017 WL 2712958, at *18. In sum, under our qualified
immunity analysis, at the time of the disclosures this Court’s precedent clearly
established that the allegedly stigmatizing statements were made public by Peck.
With the first two liberty interest requirements satisfied, Peck concedes that the
Officers’ evidence satisfied the third Sciolino element—that the stigmatizing statements
were made in conjunction with the Officers’ termination. Accordingly, the remaining
inquiry focuses on the fourth Sciolino element—whether the Officers’ evidence
established that the “the charges against [the Officers] . . . were false.” 480 F.3d at 646.
According to Peck, the Officers failed to demonstrate the disclosures were “false”
“because there is no dispute about what [the Officers] actually said—the only ‘dispute’
23
[the Officers] are raising is over whether they agreed with . . . Peck’s interpretation of
[Bald Head]’s Personnel Policy provisions which were cited in [their] termination
letter[s].” Appellants’ Br. 38.
In support of this argument, Peck relies on the Supreme Court’s decision in Codd
v. Velger, 429 U.S. 624 (1977) (per curiam). There, a discharged police patrolman
alleged that the New York City police department placed stigmatizing information in his
personnel file without providing him procedural due process. Id. at 624–26. According
to a record in the file, the department discharged the officer “because while still a trainee
he had put a revolver to his head in an apparent suicide attempt.” Id. at 626.
Notwithstanding that the officer’s counsel suggested in argument that the “attempt”
“might have been all a mistake, [i]t could also have been a little horseplay,” id. at 628(alteration in original), the Court held that there was no “factual dispute” because
“[n]owhere in his pleadings or elsewhere has [the officer] affirmatively asserted that the
report of the apparent suicide attempt was substantially false,” id. at 627.
Contrary to Peck’s argument, Codd has no bearing on this case. As the district
court correctly explained, “here the falsity alleged is not the falsity of the characterization
of the conduct or speech of [the Officers], but rather the falsity of the reasons for
terminating [the Officers] as listed in the termination letters [and] email.” Cannon, 2017
WL 2712958, at *18.
The district court further concluded—and we agree—that the Officers repeatedly
have alleged that the termination letters and the email to Bald Head employees include
false statements. See id. And the Officers adduced substantial evidence to support their
24
assertions that the stigmatizing statements in the disclosures were, in fact, false. For
example, the termination letters and email to Bald Head staff state that Defendants fired
the Officers for violations of Bald Head’s Personnel Policy—including engaging in
“harassment,” “sexual harassment,” “detrimental personal conduct,” and creating a
“hostile work environment.” Yet, Peck testified that he terminated the Officers
“[w]hether or not there was any specific policy . . . because that behavior has no place in
the Public Safety Department of Bald Head Island.” J.A. 164 (emphasis added). “[They]
were terminated because they were jerks” and because they “were disrespectful . . . of the
chain of command.” Id. Accordingly, there is a dispute of fact as to whether the
stigmatizing reasons given in the several disclosures were, in fact, the reasons Defendants
terminated the Officers.
Further, Peck’s email to the Bald Head employees stated that “five officers have
been released from employment this morning based on violations of [Bald Head] policies
pertaining to harassment, sexual harassment, discourteous conduct and inappropriate
electronic communications,” J.A. 451, thereby suggesting that Defendants fired the
Officers for the same reasons. Yet, the termination letters for some of the officers do not
mention “harassment” or “sexual harassment,” and none of the Officers’ Forms F-5B
mentions “harassment” or “sexual harassment.” Indeed, the reasons provided in the
termination letters, the Forms F-5B, the email to Bald Head employees, and Peck’s
testimony are inconsistent with each other, meaning that the Officers have satisfied their
burden to create a triable issue of fact as to whether the stigmatizing disclosures were
false.
25
* * * * *
In sum, we conclude that under clearly established precedent, Peck made public
false and stigmatizing charges regarding the grounds for the Officers’ termination. This
satisfies Sciolino’s four prongs, thus demonstrating deprivation of the Officers’
constitutionally cognizable liberty interests under clearly established law.
2.
Having concluded that this Court’s decisions clearly established that Peck
deprived the Officers of a liberty interest, we now must determine whether, under clearly
established law, the Officers were deprived of that interest “without due process of law.”
Segal, 459 F.3d at 213. As explained above, when a governmental employer places an
employee’s reputation “at stake” by publicly disclosing defamatory charges, the
employee is entitled to a hearing “to ‘clear [his] name’ against [the] unfounded charges.”
Johnson, 903 F.2d at 999 (quoting Boston, 783 F.2d at 1167). Here, the Officers never
received a name-clearing hearing. Accordingly, Peck has denied the Officers due process
of law.
Peck nonetheless asserts that the failure to afford the Officers a name-clearing
hearing does not amount to a violation of clearly established law for two reasons: (1) he
“w[as] not required to provide [the Officers] with an adversarial pre-termination
hearing,” Appellants’ Br. 42, and (2) “[the Officers] had alternative processes to contest
the contents of the termination letter[s],” id. at 41. We disagree.
We note at the outset that Peck did not argue before the district court that he did
not need to provide an adversarial pre-termination name-clearing hearing. Because Peck
26
did not raise that argument below, it is not properly before us. See, e.g., CoreTel Va.,
LLC, 808 F.3d at 988. 3
Nevertheless, even if Peck had properly raised that argument, it would fail. In
Sciolino, this Court clearly established that “[a]n opportunity to clear your name after it
has been ruined by dissemination of false, stigmatizing charges is not ‘meaningful.’”
Sciolino, 480 F.3d at 653 (emphases added); see also Fields v. Durham, 909 F.2d 94, 97
(4th Cir. 1990) (“[T]he Due Process Clause normally requires a hearing ‘before the State
deprives a person of liberty or property.’” (quoting Zinermon v. Burch, 494 U.S. 113, 127
(1990))). Accordingly, regardless whether the Fourteenth Amendment obliged
Defendants to afford the Officers an adversarial, pre-termination name-clearing hearing,
Sciolino established that the Fourteenth Amendment required Defendants to afford the
Officers a constitutionally adequate name-clearing hearing before publicly disclosing
false information regarding the basis for the Officers’ termination that, in fact, restricted
their ability to obtain new employment.
3
For the same reason, we decline to address Peck’s argument that Officer
Cannon’s liberty interest claim “fail[s] because he never requested a hearing.”
Appellants’ Br. 48. Rather than asserting that Officer Cannon’s liberty interest claim
failed because he did not request a hearing, Peck argued below that the Officers’ “request
for a grievance hearing did not put [Bald Head] on notice that they wanted a ‘name
clearing hearing,’ as opposed to a grievance seeking reinstatement.” Cannon et al. v.
Vill. of Bald Head, 7:15-cv-00187-H, ECF No. 48, at 22. The district court denied
summary judgment on that ground. Cannon, 2017 WL 2712958, at *19 (“[T]he clarity of
the [name-clearing hearing] request after dissemination of false, stigmatizing charges is
not dispositive.”). Peck does not challenge that conclusion on appeal.
27
Peck’s second argument pertaining to the adequacy of the process afforded—that
an alternate state-law process provided the Officers an opportunity to contest the claims
in the termination letters—fares no better. The state statute upon which Peck relies, N.C.
Gen. Stat. § 160A-168(d), requires municipalities to “establish procedures whereby an
employee who objects to material in his [personnel] file on grounds that it is inaccurate or
misleading may seek to have the material removed from the file or may place in the file a
statement relating to the material.” Peck concedes that this argument applies to the
defamatory statements in the termination letters only. See Appellants’ Br. 41. And by its
terms, the only remedy afforded by Section 160A-168(d) is removal of the termination
letters from the personnel file or placement of notes in the personnel file.
Here, Peck did not just place the termination letters in the Officers’ personnel
files; Peck disclosed the allegedly false and stigmatizing letters to the media. And Peck
made further disclosures of false and stigmatizing statements regarding the grounds for
the Officers’ termination in his email to Bald Head employees. Accordingly, regardless
whether Section 160A-168(d) provides constitutionally adequate process to remedy any
defamatory and stigmatizing information in the Officers’ personnel file, it does not
provide the Officers’ with any process to remedy the false disclosures at issue here, let
alone the constitutionally mandated name-clearing hearing. See Johnson, 903 F.2d at
999.
* * * * *
In sum, under clearly established law, Peck’s disclosure of the allegedly false and
stigmatizing termination letters and email to Bald Head employees deprived the Officers
28
of a constitutionally cognizable liberty interest. And this Court’s precedent also clearly
establishes that Peck did not afford the Officers due process of law because Peck did not
afford the Officers a name-clearing hearing before disseminating the false and
stigmatizing materials. Accordingly, we affirm the district court’s denial of qualified
immunity regarding the Officers’ Fourteenth Amendment liberty interest claims.
C.
Defendants next argue that the district court erred in denying their motion for
summary judgment on the Officers’ defamation claims. However, because the officers’
defamation claims are separate from our consideration of qualified immunity, we must
first confirm that we have jurisdiction over this discrete aspect of Defendants’ appeal.
Unlike a denial of qualified immunity, which is immediately appealable despite its
interlocutory status, Johnson v. Fankell, 520 U.S. 911, 915 (1997), our appellate
jurisdiction is generally limited to final orders from district courts, see Hensley ex rel.
N.C. v. Price, 876 F.3d 573, 586 n.7 (4th Cir. 2017); 28 U.S.C. § 1291. In two
circumstances we may exercise our “pendent appellate jurisdiction” to consider
additional issues arising from non-final orders: “(1) when an issue is inextricably
intertwined with a question that is the proper subject of an immediate appeal; or (2) when
review of a jurisdictionally insufficient issue is necessary to ensure meaningful review of
an immediately appealable issue.” Hensley, 876 F.3d at 586 n.7 (internal quotation
marks omitted).
Defendants assert that this Court can exercise pendent appellate jurisdiction over
the Officers’ libel claims because those claims are “intertwined” with the district court’s
29
qualified immunity determinations, which are properly before this Court. “Two separate
rulings are ‘inextricably intertwined’ if the ‘same specific question’ will ‘underlie both
the appealable and the non-appealable order,’ such that resolution of the question will
necessarily resolve the appeals from both orders at once.” Scott v. Family Dollar Stores,
Inc., 733 F.3d 105, 111 (4th Cir. 2013) (internal quotation marks omitted).
On appeal, Defendants argue that in refusing to dismiss the Officers’ defamation
claim “the district court erred in holding that [the Officers] offered sufficient evidence of
actual malice to survive summary judgment.” Appellants’ Br. 50. Under the Supreme
Court’s decision in New York Times v. Sullivan, public officials—like the Officers—must
prove by clear and convincing evidence that a defendant made an allegedly defamatory
statement with actual malice, i.e., “with knowledge that it was false or with reckless
disregard of whether it was false or not.” 376 U.S. 254, 279–80 (1964). “Actual malice
is a subjective standard.” Reuber v. Food Chem. News, Inc., 925 F.2d 703, 714 (4th Cir.
1991) (en banc). Although what constitutes “[r]eckless disregard . . . cannot be fully
encompassed in one infallible definition,” the Supreme Court has “emphasized the
necessity for a showing that a false publication was made with a ‘high degree of
awareness of . . . probable falsity.’” St. Amant v. Thompson, 390 U.S. 727, 730–31
(1968) (quoting Garrison v. Louisiana, 379 U.S. 64, 74 (1964)). “[R]eckless conduct is
not measured by whether a reasonably prudent man would have published, or would have
investigated before publishing. There must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of his
publication.” Id. at 731.
30
Whether Defendants acted with actual malice in disclosing the termination letters
and Forms F-5B and sending the email to Bald Head employees is not inextricably
intertwined with the district court’s denial of qualified immunity to Peck and Mitchell on
the Officers’ First and Fourteenth Amendment claims. In particular, resolving Peck and
Mitchell’s qualified immunity appeals does not require that we determine that Defendants
made the allegedly defamatory disclosures with a “high degree of awareness of . . .
probable falsity.” Id. (internal quotation marks omitted). Accordingly, resolution of
Peck and Mitchell’s claim to qualified immunity will not “resolve the appeals from both
orders at once.” Scott, 733 F.3d at 111.
D.
Defendants’ final argument is that the Officers’ “prayer for injunctive relief on
their liberty interest claim[s] should be dismissed as moot.” Appellants’ Br. 55.
However, this remedies question is wholly unrelated to our qualified immunity inquiry.
We therefore also lack pendent jurisdiction to consider Defendants’ mootness argument.
See Rux v. Republic of Sudan, 461 F.3d 461, 476 (4th Cir. 2006) (finding no basis for
pendent jurisdiction given that “[e]ach issue involves a distinct legal concept that does
not affect analysis of the other”).
III.
For the foregoing reasons, we affirm the district court’s denial of qualified
immunity to Peck regarding the alleged due process violations and reverse the district
court’s determination that Peck and Mitchell are not entitled to qualified immunity
31
regarding the Officers’ First Amendment claims. Because we lack jurisdiction to
consider Defendants’ defamation and mootness arguments, we dismiss those aspects of
Defendants’ appeal. Accordingly, we
DISMISS IN PART, AFFIRM IN PART, AND REVERSE AND REMAND IN PART.
32