Virginia Lawyers Weekly VA Lawyers Weekly
Under clearly established law, publication of public safety officers’ allegedly defamatory termination letters to the media before holding a name-clearing hearing supported the officers’ claims of due process violations.
Background
During the summer of 2014, Officers with the Bald Head Department of Public Safety engaged in a group text-message chain discussing topics including the Department’s management. Several texts expressed concern that the Department was providing inadequate training to public safety officers; others questioned the Department’s leadership.
Eventually, one officer showed the Department’s director, Defendant Caroline Mitchell, the texts in order to 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.
Mitchell shared the texts with Defendant Calvin Peck, the town manager, and recommended terminating the Officers and one of their coworkers. Peck agreed with Mitchell’s recommendation because the text conversation displayed a clear tone of hostility and insubordination toward Mitchell and the other members of the command staff. Mitchell later testified that she recommended terminating the Officers solely because she did not want them to be part of the Department’s team.
Peck and Mitchell informed each Officer that he had been terminated by an immediate, final decision for participating in the text chain. 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.” Officers Cannon, Koons, and Terrell also were terminated for “harassment.” And Officers Koons and Terrell were terminated for “sexual harassment” as well. Each letter additionally indicated that the Officers’ actions qualified as “detrimental personal conduct.”
The day after the Officers’ termination, local media requested copies of the letters, which human resources director Karen 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 emailed all Bald Head’s employees that “five officers have been released from employment … based on violations of [Bald Head’s] policies pertaining to harassment, sexual harassment, discourteous conduct and inappropriate electronic communications.” The email didn’t differentiate between each Officer’s alleged policy violations.
The next day, Mitchell filled out affidavits of separation and, as required by law, submitted them to the North Carolina Criminal Justice Education and Training Standards Commission. On each Officer’s affidavit, Mitchell provided the same reason for termination: “A complaint was filed with this agency … involving inappropriate electronic communications that created a hostile work environment in violation of [Bald Head] policy.” That same day, Officers Conner, Koons, and Terrell each sent a grievance letter to Peck. Peck responded, “There is no right to a grievance or appeal process.”
The Officers sued, asserting that the 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. The district court granted summary judgment to the Defendants on Officer Cannon’s First Amendment retaliation claim, but held that qualified immunity did not bar the remaining First and Fourteenth Amendment claims. The district court also declined to dismiss the Officers’ defamation claims and request for injunctive relief. This appeal followed.
Qualified immunity – First Amendment
At the time of the Officers’ termination, it was not clearly established that the Officers’ interest in engaging in their text-message speech outweighed Defendants’ countervailing interest in order and discipline.
There are several material differences between this case and Cromer v. Brown, 88 F.3d 1315, 1326 (4th Cir. 1996), that preclude Cromer from clearly establishing that the balance of interests weighs in the Officers’ favor here. To begin, unlike in Cromer, 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.” It included suggestions that 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. Another message joked about Mitchell’s sexual orientation. 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.” Ridpath v. Bd. of Gov’rs Marshall Univ., 447 F.3d 292 (4th Cir. 2006), which addressed qualified immunity in the context of a motion to dismiss, is even more factually and legally dissimilar.
Accordingly, neither Cromer nor Ridpath rendered it beyond debate that the balance of interests weighs in the Officers’ favor here. The district court erred in concluding that Peck and Mitchell were not shielded by qualified immunity from the Officers’ First Amendment retaliation claims.
Qualified immunity – Due Process
For over 30 years, this court has held that a governmental disclosure places a stigma on a former employee that gives rise to a liberty interest claim if it implies the existence of serious character defects. 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.”
“Harassment,” “sexual harassment,” and “detrimental personal conduct” amount to “significant character defects,” such as “immorality,” and therefore stigmatize the Officers’ reputation in a constitutionally cognizable manner. 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. Accordingly, it was clearly established at the time of the disclosures that the disclosed allegations would place a constitutionally cognizable stigma on the Officers’ reputations.
Peck publicized the charges against the Officers in several ways, including by sending the Officers’ termination letters to the news media and sending the email to all full-time Bald Head employees and part-time Department personnel. 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’ 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. Sciolino v. City of Newport News, 480 F.3d 642 (4th Cir. 2007), and Ledford v. Delancey, 612 F.2d 883 (4th Cir. 1980), were decided years before the Defendants discharged the Officers and disclosed the termination letters and sent the email regarding the terminations to all Bald Head employees. Accordingly, the availability upon request of those letters from the Officers’ personnel file may give rise to a constitutionally cognizable public disclosure.
In sum, at the time of the disclosures, this court’s precedent clearly established that the allegedly stigmatizing statements were made public by Peck, who concedes that the stigmatizing statements were made in conjunction with the Officers’ termination.
The Officers repeatedly have alleged that the termination letters and the email to Bald Head employees include false statements. And the Officers adduced substantial evidence to support their 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.” “[They] were terminated because they were jerks” and because they “were disrespectful … of the chain of command.” Accordingly, it is disputed whether the stigmatizing reasons given were, in fact, the reasons the 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.” Yet not all of the termination letters – and none of the separation affidavits – mention “harassment” or “sexual harassment.” Indeed, the reasons provided in the termination letters, the affidavits, 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.
In sum, 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.
The deprivation of the Officers’ liberty interest was also without due process of law, because the Officers never received the name-clearing hearing that Sciolino requires.
Alternative process offered by North Carolina law is unavailing. Peck did not just place the termination letters in the Officers’ personnel files; he 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, North Carolina law does not provide the Officers with any process to remedy the false disclosures at issue here, let alone the constitutionally mandated name-clearing hearing.
In sum, under clearly established law, Peck’s disclosure deprived the Officers of a liberty interest without due process of law. The district court correctly denied qualified immunity on these claims.
Defamation
The Defendants also contend that the district court erred in refusing to grant summary judgment on the Officers’ defamation claim. Whether Defendants acted with actual malice in disclosing the termination letters and separation affidavits 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. Accordingly, resolution of Peck and Mitchell’s claim to qualified immunity will not resolve the appeals from both orders at once. Because the court lacks jurisdiction to consider Defendants’ defamation argument, we dismiss those aspects of Defendants’ appeal.
Dismissed in part, affirmed in part, and reversed and remanded in part.
Cannon v. Village of Bald Head Island, N.C., Case No. 17-1847, May 30, 2018. 4th Cir. (Wynn), from EDNC at Wilmington (Howard). Norwood Pitt Blanchard III for Appellant; Bradley Andrew Coxe for Appellees. VLW No. 018-2-104, 32 pp.
