Former DSS director advances wrongful termination claim

A former Department of Social Services (DSS) director can move forward on her First Amendment retaliation and wrongful termination claim against a member of the DSS Board and County Board of Supervisors, a federal court judge has ruled.

But U.S. District Court Judge Thomas T. Cullen rejected the fired employee’s §1983 due process claim, ruling that she failed to establish that the defendant made actionable public statements about her at the time of, or in close temporal proximity to, her termination.

Even if she had, Cullen added, qualified immunity would shield the defendant from personal liability.

Cullen’s opinion is Flanagan v. Scearce (VLW 021-3-412).

Termination leads to lawsuit

Sherry Roberts Flanagan was hired as a supervisor for the Pittsfield County Department of Social Services in 2006 and promoted to director in 2009.

Pittsfield County is governed by an elected seven-member board of supervisors, of which Ronald Scearce is a member. He also served as a member of the DSS Board.

In early 2018, after receiving some complaints about workplace conditions at DSS, Scearce began to believe that Flanagan maintained a “hostile work environment.” An independent state investigation into the matter concluded that there appeared to be a “positive work environment” at the DSS and that the department was complying with all state laws and regulations.

Scearce began communicating through email about Flanagan with other members of the DSS Board, as well as posting on social media about the “corruption” and mismanagement allegations against Flanagan and the DSS. Scearce also attempted to add friends to the DSS Board and spoke publicly about the allegations against Flanagan.

On Aug. 15, Flanagan attended a meeting of the state DSS Board. She gave a speech in which she expressed that “there [were] no protection[s] for local directors.” She pleaded with the Virginia Department of Social Services (VDSS) for help, using her own situation as an example: despite the positive investigation results, the local board continued to denounce her and the work of her office, she explained.

Fifteen days later, Scearce and three other members of the DSS Board voted to terminate Flanagan. She was not given an opportunity to speak at the meeting.

Flanagan was unable to find employment with several other cities and counties, ultimately accepting a job where she earns $25,000 less than she did as DSS director.

The VDSS voted to suspend Scearce from the DSS Board in December 2018.

Flanagan filed suit. She alleged a deprivation of her liberty interest and First Amendment retaliation against Scearce in both his individual and official capacity.

Scearce responded with a motion for summary judgment.

Temporal proximity

Cullen quickly dismissed the claims against Scearce in his official capacity because Flanagan failed to demonstrate that a “policy or custom” of the DSS Board “played a part” in the alleged violations of the First or Fourteenth Amendments, he said. Instead, she contended that Scearce himself rather than a policy played the determinative role in the alleged constitutional violation.

What was even more problematic was that Scearce is no longer a member of the DSS Board, meaning that any claim against him in his official capacity is no longer viable.

Cullen then considered the individual capacity claims against Scearce, beginning with First Amendment retaliation.

Scearce argued that Flanagan could not prove a causal relationship between the speech she gave before the VDSS and her termination, pointing to concerns he had expressed about her management prior to the speech.

But the temporal proximity of the speech to Flanagan’s termination was enough for Cullen.

“A reasonable juror could conclude, from the short two-week interval between Flanagan’s speech and her termination, that Scearce and the board fired Flanagan in retaliation for these public comments,” he wrote, citing an email to establish that Scearce knew about the speech. “A reasonable juror could conclude from these facts that Scearce was motivated to retaliate against Flanagan for giving a speech that criticized his — and the Board of Supervisors’ — efforts to undermine and assert direct control over the local DSS, and, relatedly, jeopardized his position on the DSS Board.”

Due process claim fails

Cullen reached the opposite conclusion with regard to Flanagan’s due process violation claim against Scearce in his individual capacity.

He recognized that taken in the light most favorable to Flanagan, “the record shows that Scearce coordinated a campaign to tarnish her reputation and, ultimately, terminate her employment. Given his behind-the-scenes efforts and his own role as a voting member, a reasonable jury could therefore conclude that Scearce acted as Flanagan’s employer for purposes of her liberty interest claim.”

However, the doctrine of qualified immunity stood in Flanagan’s way because it was not clearly established that a single member of an administrative board constituted an employer for purposes of such a claim, Cullen explained.

“Accordingly, although the court finds that a reasonable jury could conclude that Scearce was acting as Flanagan’s employer for purposes of a liberty-interest claim, it was not clearly established at the time of Flanagan’s termination that Scearce, as a lone board member, would be deemed as such and therefore held liable under §1983,” he concluded.

Further, Flanagan failed to show that Scearce made any stigmatizing statements about her in conjunction with her termination. Although he made comments on Facebook about her termination, they occurred months later, “far outside” the temporal limits for purposes of a due process claim, the judge said.

Jury sides with plaintiff

Roanoke attorney Brittany M. Haddox of Strelka Employment Law represented Flanagan.

Not long after Cullen issued his opinion, the court held a three-day trial on the First Amendment retaliation claim. After about four and a half hours of deliberation, the jury sided with Flanagan and awarded her $15,000 on Sept. 30. An award of lost wages and attorney’s fees and costs is expected to follow, Haddox said.

She emphasized the unusual nature of First Amendment retaliation claims.

“These cases are very rarely brought and even more rarely tried,” Haddox said. “As far as the results, our client is ecstatic and she feels vindicated.”

Scearce’s lawyer, Jeremy E. Carroll of Guynn, Waddell, Carroll & Lockaby in Salem, did not respond to a request for comment.