Affirmеd in part, reversed in part, and remanded by published opinion. Judge MOTZ wrote the opinion, in which Chief Judge ERVIN and Judge MURNAGHAN joined.
OPINION
The district court denied various state officials qualified immunity for their role in discharging a warden, without affording him the benefits of the state grievance procedure or any hearing that included the right to confront and examine witnesses. We affirm in part, reverse in part, and remand for further proceedings.
I.
David A. Garraghty began employment with the Commonwealth of Virginia, Department of Corrections, in 1972. Eight years later, he became warden of Deep Meadow Correctional Center. He served there and
When Garraghty was hired, his position was among those entitled to the protection of Virginia’s grievance procedure. See Va.Code § 2.1-110 et seq. In 1985, however, the legislature enacted an amendment to the Virginia Personnel Act that specifically excluded wardens from its protection. See Va.Code § 2.1.-116(16) (1985) (amended 1994). There was some evidence in the record that this amendment was known as the “Garraghty Bill” and was passed in reaction to Gar-raghty’s criticism of various correctional policies.
On April 27, 1992, Gloria Williams, the personnel officer at Nottoway prison, met “unofficially” with Paul Broughton, the “head of employee relations,” to discuss “an apparent pattern of harassment or retaliation” by Garraghty against Williams. The two discussed Williams’ possible “options,” i.e., complaining to Garraghty directly, to his supervisor, to the EEOC, or to other agencies. A few days after that conversation, on May 1, Williams sent a memorandum to Garraghty, complaining of “what [she] perceive[d] to be Sexual Harassment once again.”
On June 5, 1992, Moore filed a written report detailing his findings. That report indicates that Moore’s investigation involved interviews with various employees of the Department of Corrections, including both Williams and Garraghty. Moore attempted to verify the information provided in these interviews and noted when documentary information was lacking or conflicted with an account he rеceived in an interview. Moore concluded that some of Williams’ claims were not true; for example, Garraghty’s evaluations of Williams did not drop 22 points after her prior relationship with Garraghty had ended. However, Moore noted that Williams had contemporaneously told others that she was being harassed by Garraghty and a polygraph examination of Williams supported the essence of her charges that Garraghty had made sexual advances. Garraghty denied placing his hand “on any part of Williams’ body in a sexual contact” or making “any serious sexual gesture or comments towards Mrs. Williams.” He admitted, however, that he “could have ... made a statement to her,”
Moore’s report was first reviewed by Inspector General Zimmerman, and then by Deputy Director Morris and Regional Administrator Young. On July 15,1992, Morris and Young met with Garraghty and his attorney “to review thе findings of the investigation.” At the meeting, “Garraghty and his attorney were informed of the allegations, and invited to present evidence to support their version of the events in question;” however, Morris did not permit Garraghty to confront and examine any witnesses, not even Williams. On August 25, 1992, Morris again met with Garraghty and his counsel and advised them that he had decided to terminate Garraghty. This was confirmed by a letter of the same date from Morris to Garraghty that indicated that Garraghty’s termination was effective September 25,1992 and that he had the right to have “this decision reviewed by the Director of the Department of Corrections.”
On September 2, 1992, Garraghty, by counsel, requested review of Morris’ decision by Director Murray. In a letter dated Seрtember 28,1992, Garraghty, by counsel, complained to Murray that he had not “had the opportunity to cross-examine Mrs. Williams or any witnesses on her behalf.” On that same day, Murray met with Garraghty and his attorney, reviewed the allegations against Garraghty, and gave Garraghty an opportunity “to present his side of the events in question,” but again Garraghty was given no opportunity to examine any witnesses. After that meeting, Murray examined the “investigative reports of the Inspector General, the conclusions of Mr. Morris ..., [the 16 page] written response [to the report and Morris’ letter] from [Garraghty’s] attorney, and the information provided to [Morris] during [his] meeting [with Garraghty].” On October 30, 1992, Murray upheld the decision to terminate Garraghty and notified him of his right to аppeal the termination to the Secretary of Public Safety, 0. Randolph Rollins.
Two weeks later, on November 13, 1992, Garraghty did appeal to Rollins. Rollins requested that Garraghty “state with specificity the grounds on which” his appeal was based and provide “a written presentation in support of the issues that [he] identif[ied] as [the] basis for appealing this matter.” Gar-raghty, by counsel, provided Rollins with the requested information. Garraghty does not seem to have been afforded a hearing of any kind by Rollins. In any event, again no opportunity was afforded Garraghty to confront and examine witnesses. Rather, in a letter to Garraghty dated April 2, 1993, Rollins “sustained” Murray’s basic findings— that Garraghty had made “an unwanted sexual advance thаt was rejected” and that subsequent conduct by Garraghty “constituted retaliation.” Rollins, however, believed that the harassment “continued only for a short time” and “did not cause or result in any measurable or material damage or injury to Ms. Williams.” Moreover, he felt that the Department of Corrections “incorrectly took into account previous unproven allegations of sexual harassment.” Accordingly, Rollins modified the remedial measures taken by the Department. He suspended Garraghty, retroactively, “from September 25, 1992 to November 6, 1992,” demoted him from pay grade 17 to pay grade 16, “reinstated” him in “such position within the Department as the Director in his discretion determines,” and awarded him “back pay at рay grade 16 from
On December 30, 1993, Garraghty filed this action, asserting that the Department, Murray, Morris, Young, Zimmerman, Broughton, and Moore, in their official and individual capacities, in violation of the Equal Protection and Due Process clauses of the Fourteenth Amendment, deprived him of his “liberty and property interest in continued public employment,” and denied him “vested” rights “secured to him under the state grievance procedures.” He also alleged that the defendants actually dismissed him because of “his critical speech and union activity” and so violated his First Amendment speech and assembly rights, and that his dismissal constituted a breach of state lаw contract rights. Garraghty requested that the court declare his termination illegal, enjoin the defendants from further illegal acts, require him to be paid at grade 17, or grant him a “Grievance Panel hearing,” and award him substantial compensatory and punitive damages. The district court dismissed all claims against the Department and the individual defendants, in their official capacities, to the extent such claims sought “retrospective relief and damages.”
The individual defendants then moved for summary judgment on all claims. They argued that they were entitled to qualified immunity as to Garraghty’s due process property interest claims and that the other claims were without merit on other grounds. The district court denied summary judgment as to all сlaims except those based on the Equal Protection Clause. Pursuant to Mitchell v. Forsyth,
II.
Garraghty claims that the defendants, without due process, deprived him of two protected property rights, one in the benefits of the state grievance procedure, the other in continued state employment. Determination of whether one has a constitutionally protected property right is a question of state law. See, e.g., Bishop v. Wood,
The Act provides that “[a]ll permanent state governmental personnel,” except certain excluded employees, “are eligible to file grievances as provided in this chapter.” See Va.Code § 2.1-114.5:1.C. Moreover, the Act establishes an elaborate grievance procedure, which “include[s] not more than four steps for airing complaints at successively higher levels of management and a final step providing for a panel hearing.” § 2.1-114.5:1.D. “With the exception of the final management step” neither side is permitted to be represented by counsel during the management step meetings. § 2.1-114.5:1.D.3. “At the final management step, the grievant, at his option, may have present a representative of his choice. If the grievant is represented by legal counsel, management likewise has the option of being represented by counsel.” Id. The “final step” of the grievance process entitles employees to “a hearing before an impartial panel” of three persons. § 2.1-114.5:l.D.4.b. At the panel hearing, an employee has the right to “be represented by legal counsel” who may “examine, crossexam-ine, question and present evidence....” § 2.1-114.5:l.D.4.d. It is undisputed that
Garraghty asserts that the 1985 amendment to the Act was not retroactive, and so he has a property interest under the Act in the “post-termination procedure [of] the state’s grievance procedure” and a clearly established right to that “procedure.” Alternatively, he argues that “even if this Court finds he is not entitled to participation in the state’s grievance procedure,” the Act provides him with a property interest in continued public employment, of which he was deprived, without due process, when he was dismissed after “ ‘meetings’ with Morris, Young, and Murray and his ‘review’ with Rollins,” because neither the meetings nor the review included the right to confront and examine witnesses. All defendants, except the decision makers, Morris, and Murray, assert that no action of theirs deprived Gar-raghty of any due process. All defendants, including the decision makers, maintain that their conduct deprived Garraghty of no constitutionally protected right and that even if it did, they are entitled to qualified immunity because Garraghty’s rights were not so clearly established that they could have reasonably known that their conduct violated the Constitution. We consider each of these arguments in turn.
A.
Zimmerman, Moore, Broughton, and Young assert that “[e]ven assuming Garraghty was deprived of a property interest in employment without due process, he has no claim for that deprivation against” them. They contend this is so because “[i]t is the denial of due process itself, meaning the absence of a meaningful hearing, that states the constitutional infringement in a property interest claim.” The district court rejected this argument, holding that a reasonable jury could conclude that “these Defendants, by their personal acts, caused the termination.”
In some contexts this conclusion is warranted, i.e., causing a termination is sufficient to give rise to § 1983 liability. See Wulf v. City of Wichita,
Although they participated in the investigation of Williams’ allegation of sexual harassment by Garraghty, there is no evidence that any acts by Moore, Zimmerman, Broughton, or Young caused Garraghty to be denied due process. See Williams v. Smith,
We now turn to the question of whether the remaining defendants — the decision makers, Morris and Murray — deprived Gar-raghty of any property right without due process of law.
B.
The most fundamental property right that Garraghty claims was unconstitutionally denied him was the continued right to public employment. In Detweiler v. Commonwealth of Va. Dept. of Rehab. Services,
That argument simply does not square with Virginia law. Section 1-16 of the Virginia Code provides:
No new law shall be construed to repeal a former law, or any right accrued, or claim arising from the former law, or in any way whatever to effect any such ... right accrued, or claim arising before the new law takes effect.
This statute or a predecessor has been the law of Virginia for more than 100 years and has long been held to apply to civil as well as criminal cases. See White’s Admix v. Freeman,
It would seem axiomatic that the right to continued public employment is a substantive right. In City of Norfolk v. Kohler,
Morris and Murray do not assert that either § 1-16 or Kohler is inapplicable here; they do not seek to distinguish these authorities nor do they suggest that § 1-16 and Kohler represent bad policy that we should somehow overrule. They simply ignore § 1-16 and Kohler; neither the statute nor the case is even cited in their briefs. Instead, they claim even if Garraghty “retained a property interest in his job ... a reasonable person reading that statute [§ 2.1-116(16) — the statute excluding wardens from coverage of the Act] could have believed that Garraghty was not possessed of a property interest.” That myopic argument is contrary to the established principle that one must look at “all the law,” — not just § 2.1-116(16) but also § 1-16 and relevant case law — to determine “the existence and scope of the claimed property interest.” Morris v. City of Danville,
The next question is whether Morris and Murray could have reasonably believed that they provided Garraghty with constitutionally suffiсient due process, even though they never — before or after terminating him — afforded him the opportunity to confront and examine any witness.
[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.
Id. at 335,
As to the first factor, the interest of an employee, like Garraghty, in retaining his employment has long been recognized as substantial. The Supreme Court explained in Cleveland Board of Education v. Loudermill,
In sum, when the Mathews factors are applied here we believe it is clear that the administrative burden in providing the right to confront and examine witnesses did not outweigh the important private interest at stake and the value of confrontation and examination in obtaining an accurate result in this case. Furthermore, the importance of the private interest, the value of the right to confront and examine witnesses in the cоntext of a case like this, as well as the government’s usual provision of this right, were all well established at the time Garraghty was discharged in 1992. Accordingly, the district court did not err in concluding that Morris and Murray were not entitled to qualified immunity on the theory that they could have reasonably believed that the process they provided to Garraghty was constitutionally sufficient.
Nor is their final argument on this claim— that they are entitled to qualified immunity because they were only responsible for providing Garraghty with pretermination process and that process satisfied the notice and hearing requirements of Loudermill — any more compelling. First, in fact, Murray did not provide “mere” pre-termination process. On August 25, 1992, Morris terminated Gar-raghty effective September 25, 1992. Not until three days after his termination, on September 28, 1992, did Garraghty appeal Morris’s decision to Murray. Murray issued his decision upholding Garraghty’s termination on October 30, 1992, more than a month after the termination. Thus, there is no question that Murray’s review constituted post-termination process.
Moreover, Loudermill and its progeny have upheld pre-termination process of the type afforded to Garraghty only when a plaintiff was later afforded a full post-termination hearing. See, e.g., Loudermill,
Indeed, the precise argument advanced here — that a pretermination decision maker is immune from liability as a matter of law because any denial of due process could have been, but was not, “cured” by an adequate post-termination hearing — has recently been
In this case, in which Murray and Garraghty have a history of bad blood, see supra n. 1, this conclusion seems particularly wаrranted. The record indicates that Morris knew when he terminated Garraghty that Garraghty was never to be granted an opportunity by any state administrators to confront or examine any witnesses; accordingly, we cannot hold, as a matter of law, that Morris is immune from liability growing out of the termination, if that decision is ultimately found unlawful. “The severity of depriving a person of the means of livelihood requires that such person have at least one opportunity” for a full hearing, which includes the right to “call witnesses and produce evidence in his own behalf,” and to “challenge the factual basis for the state’s action.” Carter v. Western Reserve Psychiatric Habilitation,
C.
Garraghty’s other asserted property right is to “a post-termination procedure in the state’s grievance procedure.” In other words, he claims he has a property right to receive the precise post-termination process, including a hearing by, and decision from, a three-member panel of neutral decision makers, as provided in state law. See Va.Code § 2.1-114.5:l.D.4.b. This claim is meritless.
The Supreme Court has held that state procedures do not create a substantive liberty interest:
Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.... The State may choose to require procedures for rea: sons other than protection against deprivation of substantive rights, of course, but in making that choice the State does not create an independent substantive right.
Olim v. Wakinekona,
Conversely, we have found no ease in which a federal court has held that state law establishes a property right to partic
However, we need not here hold that it is never possible to establish, by state law, a protected property interest in state procеdures because, even if this is possible, Gar-raghty certainly did not have such a clearly established property right here. This is so because the 1985 amendment to the Personnel Act eliminated any property right Gar-raghty had to the grievance procedure, unless that right was “substantive” or “vested.” Shiflet,
In sum, the district court erred to the extent that it held that defendants were not entitled to qualified immunity on Garraghty’s claim that they had dеprived him of a property right in the state grievance procedure without due process. Even if such a right is possible, there is nothing that suggests it is vested or substantive and so nothing to suggest that any property right to participation in the state grievance procedure survived the 1985 amendment, let alone that this was clearly established.
III.
For the foregoing reasons, the portions of the district court order (1) denying Young, Broughton, Zimmerman, and Moore qualified immunity on both of Garraghty’s property right due process claims, and (2) denying Morris and Murray qualified immunity on Garraghty’s claim of a property right to participation in the state grievance procedure are reversed. The portion of the district court’s order denying Morris and Murrаy qualified immunity on Garraghty’s other property right due process claim is affirmed. The case is remanded for further proceedings consistent with this opinion.
Notes
. During the summer of 1984, Garraghty was an outspoken critic of the Department of Corrections and sought to organize correctional workers. In 1985, Garraghty was suspended for five days without pay and then unsuccessfully sued his supervisors (one of whom, Edward Murray, is also a defendant here) asserting that this suspension was designed to punish him for his critical speech and union activities in violation of his due process and First Amendment rights. See Garraghty v. Jordan,
. Garraghty and Williams were involved in an intimate relationship that ended in 1984. Williams alleged that she had been subjected to similar sexual harassment subsequent to her pri- or rеlationship with Garraghty.
. Both Williams and the woman who made the 1983 allegation had previously had "a personal relationship” with Garraghty.
. On November 11, 1992, Garraghty filed a state defamation action against Williams; on August 26, 1993, a jury ultimately awarded him substantial money damages. The defamation action is now on appeal to the Supreme Court of Virginia.
. The defendants also seek to have us exercise “pendent appellate jurisdiction” and review the district court's refusal to grant them summary judgment on their liberty interest, First Amendment, and state contract claims. They have never asserted qualified immunity from liability on those claims. Moreover, they properly recognize that any exercise of pendent appellate jurisdiction is entirely within our discretion. See DiMeg-lio v. Haines,
. Tellingly, defendants' argument on this point is confined to two sentences, for which no authority is cited. They merely assert: “After preter-mination hearings, Garraghty was then given an appeal outside of DOC to Secretary Rollins and was, in fact, reinstated as an employee of DOC. It is difficult to imagine that somewhere in .these three hearings, Garraghty did not receive due process.”
. We do not hold, or even suggest, that pre-termination confrontation rights for public employees are constitutionally required. Such a holding would contravene the Supreme Court’s view in Loudermill that "[t]he essential requirements of due process” entitle a public employee "to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. To require more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee.”
. The district court did not specifically address this due process property interest claim but instead rejected it generally when denying "summary judgment as to the property interest claims."
. We deny Garraghty's motion to supplement the record on appeal. See Dakota Industries, Inc. v. Dakota Sportswear, Inc.,