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WDVA: Fired county employee’s First Amendment claim is triable

A county’s former Director of Tourism presented genuine factual disputes as to whether he was fired in retaliation for his past vote to censure members of the county board of supervisors who voted to raise taxes.

Background

At a Bedford County Republican Party meeting in October 2014, Plaintiff Gerald Craig voted to censure three of the seven members of Bedford’s Board of Supervisors – Defendants Curry Martin, Bill Thomasson, and Steve Wilkerson – for voting to raise real estate taxes.

Around the same time, Craig was also the leading candidate to be the County’s new Director of Tourism. The Supervisor Defendants were unhappy with the plan to hire him because of his recent censure vote and the accompanying newspaper coverage. Despite the Supervisors’ expressed anger, County Administrator Reeter offered Craig the job.

Under the County’s policies, new employees were “probationary” for the first six months after hire. For a director like Craig, the primary significance of the end of the probationary period was a likely pay increase. The policies additionally state that the probationary period may be extended up to three months due to unsatisfactory performance. Craig began work in December 2014, and multiple members of the Board of Supervisors stated that Craig was doing a good job.

In the spring of 2015, Reeter stepped down as County Administrator, and Defendant Carl Boggess replaced him. In late 2015, the County received a letter written by “Bedford County Tourism Stakeholders” that criticized Craig’s work as tourism director. The letter was not processed like other mail but rather delivered by a “political operative” who supported the censured Defendants. Unlike other correspondence addressed to the Board, it was not date stamped upon receipt. Under Bedford’s normal operating procedures, letters like this would immediately be given to the Chairwoman, but she was never alerted to the letter, and it was never given to the Board until its membership had turned over to be less supportive of Craig.

Six months into Craig’s tenure, Craig asked Boggess for a review in accordance with his offer letter. Craig didn’t receive any feedback either at this point or at the end of 12 months. Instead, Boggess told Craig that his probationary period was being extended another six months. At both meetings, Craig brought prepared documents laying out his accomplishments, but Boggess refused to accept them or provide other feedback on them. Boggess never gave Craig a written evaluation or discussed the November 2015 letter with Craig.

Two days before his final meeting with Craig in April 2016, Boggess told members of the Board of Supervisors that he was going to fire Craig. At the meeting, Boggess gave Craig a blank notebook and then a laptop with a blank document. Boggess said, “I want all of the strategies for tourism and I want you to write them and I want them now.” Craig had not been prepared for this or told to bring any notes. Craig had gotten through about seven strategies before Boggess returned and said, “All right, time is up.”

In May 2016, Boggess gave Craig a termination letter stating that the priorities, goals, and objectives of Craig’s position had not been met. Craig initiated this action, alleging that he was actually fired because of his original vote to censure multiple Board members. The Defendants have moved for summary judgment.

First Amendment retaliation

Craig’s public censure vote – a form of both expression and association – is the basis of both First Amendment claims. A reasonable jury could find that Craig’s exercise of his First Amendment rights was a “substantial” factor in the employer’s decision to terminate him.

When Craig was hired, Boggess told Reeter about Craig’s censure vote, showing that Boggess thought this political activity was relevant to Craig’s employment. Once Boggess became the County Administrator, he extended Craig’s probationary period to 18 months, which he conceded was not in accordance with County policy. Multiple Board members said they weren’t aware of any other instances of this sort of extension.

Boggess also didn’t give written feedback or other evaluative and remedial measures spelled out in County policies, which must be considered in light of Boggess’s statement that when he first met Craig, he’d already decided to terminate him and just had to figure out how. Finally, the abrupt nature of Craig’s final meeting and termination is further evidence that his political activity was a substantial factor in his firing.

While a defendant may avoid liability by demonstrating that he would have made the same employment decision absent the protected expression, reasonable jurors could disagree on whether Boggess really fired Craig because of his performance or instead because of his political activity.

Boggess contends that Craig’s hiring, subsequent to the censure vote, immunized the eventual decision to fire him. But it was Reeter who decided to hire Craig – in spite of Boggess’s opposition. Thus, Reeter’s decision is not at all inconsistent with a finding that Boggess possessed a retaliatory motive. Boggess, who wanted to fire Craig all along, got the opportunity to do so when he was promoted.

Craig has similarly made out a prima facie case to attribute liability to Thomasson, Martin, and Wilkerson. A jury could reasonably find these three Defendants individually participated in Craig’s termination. They were the subjects of Craig’s censure vote. All three expressed anger at Craig’s hiring, and two stated Bedford should not hire employees like Craig who voted against Board members. These sentiments were communicated to Boggess, who served at the pleasure of the Board and eventually fired Craig. To “appease” these Board members’ anger, Reeter gave Craig a longer than normal probationary period. Various witnesses testified these three Defendants still maintained “hard feelings,” “a grudge,” and an inability “to let [the vote] go.”

The three Defendants were part of the Board that hired Boggess as County Administrator. While they contend that they opposed Craig’s employment because he lacked experience, their contemporaneous statements that Bedford “should not hire anybody that had gone against a supervisor” lead to a genuine factual dispute.

Defendant Bedford County argues there can be no municipal liability because there is insufficient evidence that a County policy was the moving force behind Craig’s alleged constitutional deprivations. Under Virginia law, the Board of Supervisors started with final authority over employment policy but delegated it “to the County Administrator authority in selection, hiring, and dismissal of all other County employees with the exception of the County Attorney.” This delegation gave the County Administrator “final authority” over employment policy. Accordingly, Bedford can also be held liable for Boggess’s determination to terminate Craig.

No due process claims

Craig also claims that statements made in connection with his termination violated his procedural due process interest in liberty. But Craig hasn’t identified statements implying he had character or moral defects. Instead, Craig’s termination letter discusses poor work performance and a lack of experience. Because these statements do not imply character flaws, no reasonable jury could find that Craig suffered a procedural due process violation. Because Craig has no liberty or property interest implicated by the Defendants’ conduct, his substantive due process claim will also be dismissed.

Motion for summary judgment granted in part and denied in part.

Craig v. Bedford County, Case No. 6:17cv28, June 26, 2018. WDVA at Lynchburg (Moon). VLW No. 018-3-267, 21 pp.

VLW 018-3-267

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