DSS director asserts she was terminated for speech

Virginia Lawyers Weekly//September 13, 2021

DSS director asserts she was terminated for speech

Virginia Lawyers Weekly//September 13, 2021

Where the director of the Pittsylvania County Department of Social Services, or DSS, was terminated two weeks after she spoke as a private citizen about community divisions affecting the delivery of social services in Pittsylvania County, a jury will decide if she was fired in retaliation for her speech.


After the DSS board voted to remove her as director, Sherry Roberts Flanagan sued Ronald Scearce, a member of the DSS board and the Pittsylvania County Board of Supervisors. Flanagan alleges that Scearce violated her federal constitutional rights by orchestrating a public smear campaign about her stewardship of the DSS and terminating her for speaking publicly about this perceived mistreatment. Scearce has filed a motion for summary judgment.

Official capacity

Flanagan’s official-capacity claims fail for two reasons. First, Flanagan has not shown that a “policy or custom” of the DSS board “played a part” in the alleged violations of the First or 14th Amendments. To the contrary, Flanagan contends that Scearce himself, rather than a policy, played the determinative role in the alleged constitutional violation, and that, in so doing, he essentially acted as a rogue board member, in contravention of normal board practice.

Second, Scearce is no longer a member of the DSS board. This means any claim brought against him in his official capacity is no longer viable. The court will accordingly grant Scearce’s motion for summary judgment on all official capacity claims brought against him.

First Amendment

Flanagan next claims that Scearce wrongfully terminated her in retaliation for the speech that she gave in Richmond before the Virginia Department of Social Services, or VDSS. For a public employee to succeed on a claim for retaliatory discharge under the First Amendment, a court must find that (1) the employee was speaking as a private citizen upon a matter of public concern, rather than as an employee about a matter of personal interest; (2) the employee’s interest in speaking upon a matter of public concern outweighs the government’s interest in providing effective and efficient services to the public and (3) the speech was a substantial factor in the employee’s termination.

Flanagan has established the first prong because she spoke as a private citizen in front of the VDSS on a matter of public concern—community divisions affecting the provision of social services in Pittsylvania County. Similarly, Flanagan has satisfied the second prong because her interest in speaking about this matter of public concern outweighed any government interest in providing effective and efficient service to the public. Finally, the temporal proximity of Flanagan’s speech on Aug. 15, 2018, and her termination on Aug. 30, 2018, is sufficient to create a genuine issue of material fact as to whether Flanagan’s speech was the but-for cause of her termination.

14th Amendment

A plaintiff must satisfy two components to show that a governmental employer violated her 14th Amendment rights by publicly disclosing the reasons for her termination. First, the plaintiff must show that she has been deprived of a liberty interest; this is done by demonstrating that the charges made against her by her government employer “(1) placed a stigma on [her] reputation; (2) were made public by the employer; (3) were made in conjunction with [her] termination or demotion; and (4) were false.” Second, the plaintiff must demonstrate that her liberty interest was deprived without due process of law.

Scearce first argues that, as a single member on the DSS board without the sole authority to bind the board, he was not Flanagan’s employer for purposes of her liberty interest claim. The court is not persuaded. When viewed in the light most favorable to Flanagan, the record shows that Scearce coordinated a campaign to tarnish her reputation and, ultimately, terminate her employment.

Scearce contends, however, that even if he was Flanagan’s employer he is nonetheless protected under the doctrine of qualified immunity because it was not clearly established that a single member of an administrative board constitutes an employer for purposes of this liberty interest claim. The court is constrained to agree. The court has been unable to find any binding caselaw from the Supreme Court or the Fourth Circuit holding that a lone member of an administrative board, without authority to bind or act unilaterally for that body, constitutes an employer for purposes of this 14th Amendment liberty-interest claim.

Moreover, Flanagan has failed to show that Scearce made any stigmatizing statements about her in conjunction with her Aug. 30, 2018 termination. In other words, Flanagan has also failed to establish the third element of her liberty-interest claim.

Defendant’s motion for summary judgment granted in part, denied in part.

Flanagan v. Scearce, Case No. 7:19-cv-00413, Aug. 23, 2021. WDVA at Roanoke (Cullen). VLW 021-3-412. 30 pp.


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