Bowers v. Scurry , 276 F. App'x 278 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1382
DENA BOWERS,
Plaintiff - Appellant,
versus
NAT SCURRY, in his official and individual
capacity; LUCINDA CHILDS-WHITE, in her
official and individual capacity,
Defendants - Appellees,
and
UNIVERSITY OF VIRGINIA, by its Rector and
Visitors; LEONARD SANDRIDGE, in his official
capacity as executive vice president and chief
operating officer of the University of
Virginia, and in his individual capacity; YOKE
SAN REYNOLDS, in her official capacity as
chief financial officer of the University of
Virginia, and in her individual capacity,
Defendants.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:06-cv-00041-nkm)
Argued: March 19, 2008 Decided: May 2, 2008
Before DUNCAN, Circuit Judge, HAMILTON, Senior Circuit Judge, and
William L. OSTEEN, Jr., United States District Judge for the Middle
District of North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Deborah Chasen Wyatt, WYATT & ARMSTRONG, P.L.C.,
Charlottesville, Virginia, for Appellant. Richard Croswell Kast,
UNIVERSITY OF VIRGINIA, Charlottesville, Virginia, for Appellees.
ON BRIEF: Paul J. Forch, General Counsel and Special Assistant
Attorney General, Margaret A. Browne, Barry T. Meek, UNIVERSITY OF
VIRGINIA, Office of General Counsel, Charlottesville, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Dena Bowers (“Bowers”), a former employee of the University of
Virginia (“University”) Human Resources division, brought this
action against the school and various University officials after
she was fired for using her University email account to disseminate
information regarding the potential impact on University employees
of pending salary restructuring, and for her refusal to assist in
the University’s investigation into the source of that information.
The district court granted summary judgment in favor of the
University and its officials, and this appeal followed. For the
reasons that follow, we affirm.
I.
In reviewing the granting of a motion for summary judgment, we
view the facts in the light most favorable to the non-moving party,
here, Bowers. See Holland v. Washington Homes, Inc., 487 F.3d 208,
213 (4th Cir. 2007).
At the time of the events in question, the University of
Virginia was supporting legislation that would allow it greater
autonomy in the area of human resources. Bowers, while employed at
the University, sent an email message to a colleague using her
University email account and bearing a signature stamp identifying
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her as a University Human Resources employee.1 Attached to the
message were documents and charts that Bowers had received during
a meeting of the local chapter of the National Association for the
Advancement of Colored People (“NAACP”). The attachments purported
to portray the likely results of the salary restructuring
initiatives (or “decentralization”), and reflected the NAACP’s
opposition to the pending legislation supported by the University.
The attachments consisted of four separate documents with different
file names. Although the first attachment had a cover page stating
that it was prepared by the local chapter of the NAACP, there was
no similar cover on the remaining three attachments.
After receiving the email and attachments, the colleague
sought and received Bowers’s permission to forward them to an
unknown number of University employees. Neal Grandy, one such
second-tier recipient, forwarded the email and attachments on anew,
with the following note: “You might want to pass this along, as it
seems HR is circulating this (and Dena Bowers, who did the
breakdown for HR, said it was okay to forward.) This appears to be
the compensation package we’ll be getting with decentralization.
It does not seem to be good news.” J.A. 106. As that employee
subsequently testified, “I did not know Ms. Bowers, but noted that
1
The Commonwealth of Virginia maintained an internet use
policy that required employees to identify personal communications
sent from Commonwealth systems as personal, to prevent them from
being viewed as official communications. J.A. 635.
4
from her original e-mail that she was an employee of the
University’s Human Resources, or ‘HR’ division, so I assumed that
the information she had sent was HR information about
restructuring.” J.A. 105. Another recipient forwarded the email
to a Listserv of University staff. Shortly thereafter, Grandy
began to receive questions and expressions of concern. J.A. 106.
When Bowers learned that some recipients had perceived her
email as official correspondence, she made an effort to clarify
that the attachments were from the NAACP, not the University Human
Resources office. She communicated as much to the colleague to
whom she had originally sent the email, and in response to a
request from another one of the recipients, stressing the
distinction between sending the message and attachments “in [her]
capacity as an NAACP member” instead of as a University employee.
J.A. 240-41; see also J.A. 106.
Several days after Bowers sent the email noted above, she
spoke by telephone with appellees Lucinda Childs-White (“Childs-
White”) and Nat Scurry (“Scurry”), two of Bowers’s supervisors, and
appellee Yoke San Reynolds (“Reynolds”), the chief financial
officer of the University, among others. Reynolds told Bowers that
her email contained significant inaccuracies and had caused
confusion and disruption in the workplace. Reynolds asked several
questions of Bowers, including to whom she sent the information,
and where it originated. Bowers answered some of the questions,
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but refused to explain where the information used to create the
NAACP documents came from; she maintained that the University had
no right to demand that information.2
The day after this telephone conversation, Bowers met with
Scurry and Childs-White for a “predetermination meeting,” J.A. 142-
43, to decide whether Bowers’s conduct warranted disciplinary
action. Scurry and Childs-White again met with Bowers
approximately one month later, on November 17th, 2005, in what
Childs-White characterized as a “second predetermination meeting.”
J.A. 143-44. At that point, Bowers was placed on paid leave until
November 22nd. Bowers was told that a third meeting would take
place on November 22nd, at which Bowers would have an opportunity
to “present a defense.” J.A. 238. According to Bowers, and
accepted as true for purposes of our review, on the day before the
hearing Bowers asked Scurry to specify the charges against her, but
Scurry failed to respond. That evening, however, Bowers
acknowledged receiving “information indirectly and from a totally
different source concerning at least the nature of the alleged
charges being leveled against her, although the information was
still highly non-specific.” J.A. 17 (Compl. ¶ 40). At the
conclusion of the meeting on the 22nd, the University terminated
2
Bowers later claimed to have received certain salary
information from Aretha Spears, a medical center employee. J.A.
605. However, Spears testified that she did not give Bowers any
such information. J.A. 194.
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Bowers’s employment. The reasons given for the termination were
Bowers’s distribution of the email and her refusal to provide
assistance in identifying the source of what the University
identified as the substantively inaccurate information it
contained.
II.
Bowers filed this action in Virginia state court, alleging
violations of her First Amendment rights of free speech and free
association, a denial of her due process rights, and state law
claims. The defendants removed the case to federal court. The
district court dismissed the state law claims and Bowers’s due
process claim insofar as it alleged that she had received
inadequate notice before the University terminated her employment.
Following discovery, the district court granted summary judgment on
all of Bowers’s remaining claims except her due process claim
insofar as it alleged that Bowers had been deprived of an
opportunity to be heard. Bowers thereafter waived her remaining
due process claim.
On appeal, Bowers challenges the district court’s grant of
summary judgment in favor of the University and its officials on
Bowers’s First Amendment claims and the dismissal of Bowers’s due
process claim relating to allegations of inadequate notice. We
review these issues de novo. See Holland, 487 F.3d at 213.
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A.
Bowers argues that the email and attachments sent from her
work computer constituted protected speech, and that the University
violated her free speech rights by firing her, in part, for sending
it. We disagree.
In Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292(4th Cir. 2006), this court reiterated the test, first set forth in
McVey v. Stacy, 157 F.3d 271 (4th Cir. 1998), to be used in
analyzing whether a public employee has proven that a retaliatory
action taken by her employer violated her free speech rights:
First, the public employee must have spoken as a citizen,
not as an employee, on a matter of public concern.
Second, the employee’s interest in the expression at
issue must have outweighed the employer’s interest in
providing effective and efficient services to the public.
Third, there must have been a sufficient causal nexus
between the protected speech and the retaliatory
employment action.
Ridpath, 447 F.3d at 316 (internal citations and quotations
omitted).
Under McVey’s second prong, we find that the University’s
“interest in providing effective and efficient services to the
public” strongly outweighs Bowers’s “interest in the expression at
issue.” Id. Bowers violated a state policy limiting the sending
of personal email from state accounts and computers. This policy
bolstered the University’s attempts to manage the dissemination of
information from University accounts and computers, part of its
broader attempt to provide “effective and efficient services to the
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public,” id.3 Bowers’s interest in the expression at issue, while
not insubstantial, fails to tilt the balance in her favor.
Accordingly, we hold that Bowers’s speech was not entitled to First
Amendment protection under McVey’s second prong. McVey, 157 F.3d
at 277; Ridpath, 447 F.3d at 316.
B.
Bowers next claims that the University violated her First
Amendment rights by discharging her, in part, for refusing to
answer her supervisors’ questions about the source of the
information contained in the attachments. She argues that this was
tantamount to retaliating against her for her association with the
NAACP. The district court agreed, but held that the right at issue
was not “clearly established,” and that, therefore, the
University’s action was protected by qualified immunity. See Conn
v. Gabbert, 526 U.S. 286, 290 (1999) (“[A] court must first
determine whether the plaintiff has alleged the deprivation of an
actual constitutional right at all, and if so, proceed to determine
3
The University’s interest in providing effective and
efficient services to the public was severely hampered in this case
by Bowers’s actions. The inclusion of Bowers’s title--“UVA Human
Resources Recruiter”--gave recipients of her message the mistaken
impression that Bowers sent the information as part of her job-
related activity. As a result, the email was likely to, and in
fact did, generate considerable confusion among recipients.
Indeed, one of the University recipients testified that he assumed
that the information came from Bowers in her capacity as a
University Human Resources employee. The confusion generated by
Bowers’s email was not alleviated by the cover sheet accompanying
the first attachment.
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whether that right was clearly established at the time of the
alleged violation.”).
We do not reach the “clearly established” prong of qualified
immunity, however, concluding instead that Bowers failed to assert
a viable freedom of association claim as a threshold matter. It is
not open to debate that the University could not ask Bowers about
NAACP membership information. See NAACP v. Alabama, 357 U.S. 449,
466 (1958). That, however, is not what happened here. Rather,
Bowers was questioned about the source of the compensation and
benefits information the attachments described as being in place at
the University. Bowers points to no authority, nor are we able to
find any, that would prevent such an inquiry. On its face, the
information must have originated from the school--not the NAACP--
and the medical center worker from whom Bowers claimed to have
obtained the information denied having provided it to her. On
these facts, the University did not violate Bowers’s First
Amendment rights in seeking to ascertain the internal source of
what it reasonably believed to be false and potentially harmful
data about its own compensation structure.
C.
Bowers also argues that the University violated her due
process right to adequate notice. The University was required to
provide Bowers with timely oral or written notice describing the
nature of the charges and the general evidence against her. See
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Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).
Bowers acknowledges that University officials spoke with her by
telephone and asked her about the email, and that she was provided
a copy of the email. She attended two in-person meetings with
University officials prior to her termination, at which the
contents and the impact of the email were discussed. It is unclear
what other information about the University’s concerns Bowers
expected. Under these circumstances, we are compelled to agree
with the district court’s assessment “[t]hat there is simply no
question that [Bowers] was aware of the conduct giving rise to her
dismissal.” Bowers v. Rector and Visitors of the Univ. of Va., 478
F. Supp. 2d 874, 889 (W.D. Va. 2007).4
III.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
4
Bowers also asserts that the district court erred in its
finding that Sandridge and Reynolds were not involved in her
firing, and that the court erred in dismissing the University as a
defendant. Bowers also challenges the district court’s striking of
certain emails from evidence for lack of authentication. In light
of our holdings, supra, that Bowers’s email was not protected
speech, that she failed to assert a viable free association claim,
and that her due process rights were not violated, we find it
unnecessary to reach these issues. We have examined her other
arguments, and find them to be without merit.
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