By Nadine E. Roddy, J.D.
In a suit brought by discharged public safety officers against their village employer and two of its officials, the village officials were entitled to qualified immunity on a First Amendment free speech claim, but not on a Fourteenth Amendment due process claim, the Fourth Circuit held. It was not clearly established that the village’s interest in maintaining order and discipline was outweighed by the officers’ interest in engaging in arguably insubordinate speech in a group text message chain. But the law was clearly established that a government employer’s failure to provide a name-clearing hearing before publishing false and stigmatizing information relating to an employee’s discharge was an impermissible infringement of a due process liberty interest (Cannon v. Village of Bald Head Island, N.C., May 30, 2018, Wynn, J.).
The offending group text messages. Four discharged officers in a village’s Department of Public Safety sued the village, its manager, and its Director of Public Safety, asserting claims of First Amendment retaliation, Fourteenth Amendment due process deprivation, and state-law defamation. Summary judgment evidence revealed that the Department combined the village’s firefighting, paramedic, and police units into a single multi-disciplinary group of emergency personnel. Over a three-week period, the officers in the Department engaged in a group text-message chain with several coworkers. Although the messages ranged widely in topic, several concerned a local news article in which the Director stated that all but two officers were certified to perform all types of emergency services provided by the Department. Many officers on the message chain questioned the veracity of that claim, identifying several Department employees who lacked one or more of the certifications. Other messages expressed concern that the Department was providing inadequate training and had poor leadership. One message seemed to question the Director’s gender identity in a joking reference to a popular movie.
Fired. Eventually one of the participants disclosed the message chain to the Director. The manager agreed with the Director’s recommendation that the officers and a coworker be discharged because the messages displayed a “clear tone of hostility and insubordination …” Termination letters were drafted based on the manager’s and Director’s identification of relevant sections of the village’s personnel policy; they then informed each of the employees and the coworker privately that their employment was terminated, effective immediately, due to “discourteous treatment of other employees,” “inappropriate electronic communications,” and “detrimental personal conduct.” Two of the employees were also discharged for “sexual harassment.”
Resulting publicity. The manager then informed all village employees by email of the terminations and the underlying reasons. The next day, the text of the termination letters was published in the local newspaper. The employees each filed a grievance letter but were informed by the manager that “there is no right to a grievance or appeal process.” In the resulting litigation, the district court denied the individual defendants’ motions for summary judgment on the constitutional claims, ruling that the defendants were not entitled to qualified immunity. The court also denied all defendants’ motions for summary judgment on the state-law defamation claim.
First Amendment retaliation. The appeals court first noted that for a right to be clearly established, there need not be a case directly on point, but existing precedent must have placed the statutory or constitutional question “beyond debate.” The individual defendants argued that at the time of the employees’ termination, the law was not clearly established that the statements in the text message chain amounted to speech on a matter of public concern, and, even if it did, the law was not clearly established that the employees’ interest in engaging in such speech outweighed the defendants’ countervailing interest in order and discipline.
Assuming without deciding that the employees’ text message speech addressed a matter of public concern, the court held that under Fourth Circuit precedent, the law was not clearly established that the village officers strong interest in maintaining order and discipline in a department of public safety was outweighed by the officers’ interest in engaging in speech like that contained in the message chain. Indeed, discovery revealed evidence suggesting that the chain, which included arguably insubordinate and discriminatory statements, had in fact adversely impacted discipline. As such, the individual defendants were entitled to qualified immunity on this claim.
Infringement of due process liberty interest. But the Fourth Circuit also held that the law was clearly established that a government employer’s failure to provide a name-clearing hearing before publicly disclosing false and stigmatizing reasons for an employee’s termination is a violation of a liberty interest protected by due process. The Supreme Court has repeatedly held that when a government employer places an employee’s reputation at stake by publicly disclosing defamatory charges, notice and opportunity to be heard are “essential,” and the opportunity to be heard “must be granted at a meaningful time.”
Further, according to the appeals court’s own precedent, an opportunity to clear one’s name after it has been damaged by dissemination of false and stigmatizing charges is not “meaningful.” For over 30 years, the court had held that a governmental disclosure places a stigma on a former employee sufficient to infringe a liberty interest if it implies the existence of serious character defects such as dishonesty or immorality. Here, the termination letters and the manager’s email message included allegations of “sexual harassment” and “detrimental personal conduct,” which implied significant character defects. Publication of this information stigmatized the officers’ reputations; in addition, the officers had presented substantial evidence to support their claims that those stigmatizing statements were, in fact, false, creating a dispute of fact as to whether the stigmatizing reasons actually were why the officers were terminated. Consequently, the court ruled that the individual village officials were not entitled to qualified immunity on this claim.
Defamation. The village also appealed the district court’s denial of their motion for summary judgment on the officers’ state-law defamation claims. Unlike a denial of qualified immunity, which is immediately appealable, the court would have to exercise its pendant appellate jurisdiction to hear an appeal from a non-final order (the denial of summary judgment on the state-law defamation claims. However, because the state-law defamation claim was not sufficiently intertwined with the constitutional claims involving qualified immunity, the appeals court determined that it lacked jurisdiction to decide the state law issues. Whether the village officials acted with actual malice in disclosing the termination letters and sending the email to other employees was not inextricably intertwined with the district court’s denial of qualified immunity on the officers’ First and Fourteenth Amendment claims, nor would it “resolve the appeals from both orders at once.”
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