Hyman v. Town of Plymouth NC ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WANDA S. HYMAN,
Plaintiff-Appellant,
v.
TOWN OF PLYMOUTH, NORTH
CAROLINA; JARAHNEE BAILEY, Mayor
of the Town of Plymouth, North
No. 95-2865
Carolina; RICHARD HOLEMAN,
Councilman for the Town of
Plymouth, North Carolina; HARRY
HOUSE, Councilman for the Town of
Plymouth, North Carolina,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Franklin T. Dupree, Jr., Senior District Judge.
(CA-94-41-D)
Submitted: May 16, 1996
Decided: May 30, 1996
Before RUSSELL, LUTTIG, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Robert Lee White, Greenville, North Carolina, for Appellant. Patricia
Lee Holland, CRANFILL, SUMNER & HARTZOG, L.L.P., Raleigh,
North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Wanda S. Hyman appeals from the district court's order granting
summary judgment in favor of the Defendants on her 42 U.S.C.
§ 1983 (1988) claim and her pendent state defamation claim. We
affirm.
Hyman was employed by the Town of Plymouth, North Carolina,
as its city manager from May 1993 to August 1994. On August 8,
1994, the Plymouth town council held a closed meeting after which
Hyman was advised to resign or face termination. Hyman refused to
resign and the council then voted, in an open session, to terminate
Hyman. Councilman Holeman stated in that session that Hyman
lacked the "skills and traits" necessary to solve a number of "extreme
difficulties" facing the community. This statement was published in
two local newspapers.
On September 12, 1994, approximately one month after Hyman
was fired, Councilman House made a motion during the town council
meeting to investigate "improper handling of public funds, now sus-
pected or in the future discovered." No mention was made of Hyman
or her position. In fact, the only person even vaguely mentioned dur-
ing the meeting was the town's finance officer. The local newspaper
reported that the town council had initiated an investigation "regard-
ing possible embezzlement of town funds by a town employee," but
did not in any way refer to Hyman. One of the papers stated that
"House did not say who he suspects was responsible for the misuse
of funds."
Hyman filed this action alleging that the Defendants' actions
deprived her of due process in violation of the Fourteenth Amend-
ment and that they had defamed her based on the newspaper articles
following her termination. The district court granted summary judg-
ment to the Defendants on both claims. Hyman appeals.
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This court reviews the granting of summary judgment de novo.
Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th
Cir. 1988). The party moving for summary judgment has the burden
of showing that no genuine issue of material fact exists and that it is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Barwick
v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). The party oppos-
ing the motion must come forward with some minimal facts to show
that summary judgment is not warranted. Fed. R. Civ. P. 56(e); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The facts and
all reasonable inferences are to be viewed in the light most favorable
to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). Hyman claimed first that she had a protected liberty
interest in maintaining her reputation in the community and that the
Defendants deprived her of that liberty interest by denying her a post-
termination "name-clearing" hearing. The Supreme Court has held
that a public employee has a protected liberty interest entitling him to
notice and an opportunity to be heard where a charge is made which
damages his reputation in the community, "for example, that he had
been guilty of dishonesty, or immorality." Board of Regents v. Roth,
408 U.S. 564, 573 (1972). This court has held that"[a]llegations of
incompetence do not imply the existence of serious character defects
such as dishonesty or immorality, contemplated by Roth . . . and are
not the sort of accusations that require a hearing." Robertson v.
Rogers, 679 F.2d 1090, 1092 (4th Cir. 1982) (holding that statements
that the plaintiff had been fired for "incompetence and outside activi-
ties" did not impose on the plaintiff a stigma or disability sufficient
to implicate a constitutionally protected liberty interest); see also
Zepp v. Rehrmann, 79 F.3d 381, 388 (4th Cir. 1996).
We agree with the district court's conclusion that statements made
at the August 8 council meeting regarding Hyman's competency did
not give rise to a protected liberty interest. Nor do comments made
at the September 12 council meeting--which Hyman claims "insinu-
ated" that she embezzled funds--give rise to a protected liberty inter-
est because they were made after she had already been terminated.
See Siegert v. Gilley, 500 U.S. 226, 234 (1991) (no due process claim
where alleged defamation not uttered incident to employee's termina-
tion).
As to Hyman's state law claim for defamation, we find that the
record reveals no defamatory statements made by either Holeman or
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House. Accordingly, we affirm the district court's order granting
summary judgment to the Defendants on both of Hyman's claims. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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