Roncales v. McDowellRoncales v. McDowell
Plaintiff Rosa Roncales brings this civil action against her former employer, the County of Henrico (the “County of Henrico” or the “County“), and her former supervisors at the Henrico Fire Department: Anthony McDowell, Alec Oughton, Scotty Roberts, and Eugene Gerald (collectively with the County, “Defendants“). In her Second Amended Complaint, Roncales claims Defendants unlawfully terminated her from her position as a Henrico County firefighter. She brings two causes of action: (1) that Defendants violated the First Amendment when they terminated her after she participated in a political protest (the “First Amendment Retaliation Claim“); and, (2) that Defendants denied her due process when they infringed on her protected liberty interests to “engage in any of the common occupancies of life, including fire-fighting” and tarnished her good name by placing stigmatizing information in her personnel file, (the “Due Process Claim“). (Compl.,1 ECF No. 30.)
Defendants moved to dismiss the Second Amended Complaint (the “Motion to Dismiss“), pursuant to
Roncales brings this civil rights action pursuant to
Roncales‘s claims stem from her termination from the Henrico Fire Department in April 2017. (Compl. ¶¶ 10, 38.) Before her termination from the Henrico Fire Department, Roncales had worked as a firefighter for more than five years, first at the Petersburg Fire Department and then for the County of Henrico. (Id. ¶ 10.) Roncales asserts that prior to the events described here she had intended on pursuing a career as a firefighter. (Id. ¶ 11.)
1. Circumstances Leading to Roncales‘s Termination on April 4, 2017
The events leading to Roncales‘s April 2017 termination began in November 2016, shortly after the election of President Donald Trump. (Id. ¶ 12.) Roncales states that in November 2016 she “posted a graphic on her personal Facebook page severely critical of the incoming administration.” (Id.) According to Roncales, Robert Owens and Ronnie Thomas, her supervisors at the Henrico Fire Department, warned her “‘to be careful’ about what she posted on social media.” (Id. ¶ 13.) Owens and Thomas shared the post with Roncales‘s chain of command, including the individual Defendants, McDowell, Oughton, Roberts, and Gerald. (Id.) “Soon thereafter, [her] Facebook post was disseminated and spread among members of the [Henrico Fire Department].” (Id. ¶ 14.)
Approximately two months later, on January 20, 2017, Roncales says she “participated in a political march and rally in Washington, D.C., along with thousands of other participants, in opposition to the inauguration of Donald Trump.” (Id. ¶ 15.) Roncales states that she “attended the protest on her own time and wore no clothing or other markings that would identify her” as a
Henrico Fire Department policy required Roncales to report her arrest to her supervisor, Ronnie Thomas, which she did. (Id. ¶ 18.) Although Roncales asked her supervisor to keep her arrest confidential, she claims that this information “was immediately disseminated” throughout the department. (Id.) After disclosing her arrest, McDowell and Oughton transferred Roncales “to a light position, reducing her firefighting duties and responsibilities.” (Id. ¶ 19.) Roncales states that, in late January, all of the Defendants knew about her Facebook post and the circumstances surrounding her arrest. (Id. ¶ 20.)
2. Roncales‘s Supervisors Question Her Three Times About the Protest
“Days later, on January 30, 2017,” Roncales received a memorandum from “Oughton that she would be questioned as part of an . . . administrative investigation into her arrest.” (Id. ¶ 21.) That same day, Roberts and Gerald conducted the questioning. (Id. ¶ 22.) Prior to receiving that memorandum, Roncales did not know that such questioning would occur. (Id.) Roncales states that after receiving the memorandum and before the questioning began, she “requested a brief delay so she could consult with her legal counsel but Defendants Roberts and Gerald instructed her that she had only until 2 p.m. to subject herself to their ‘interrogation’ or face termination.” (Id.)
Roncales claims that McDowell and Oughton directed Roberts and Gerald to question her. (Id.) Roncales asserts that, before questioning, either Roberts or Oughton “commented that it would be ‘sticky if she doesn‘t come clean.‘” (Id. ¶ 25.) Roncales further alleges that either
One week after the initial questioning, on February 7, 2017, Roberts and Gerald again questioned Roncales. (Id. ¶ 24.) In the second round of questioning, “Roncales was specifically asked if she shared the political views of those with whom she was demonstrating. [Roncales] acknowledged that she did.” (Id. ¶ 27.) Roncales further alleges that she was asked about what she wore during the rally, whether she had participated in other events with that organization, and “whether she shared the violent actions of some people.” (Id. ¶ 28.) Roncales answered that “she had no intention to break the law and when she saw others doing so, she made every effort to get away from them.” (Id. ¶ 29.) Roncales believes McDowell and Oughton approved Roberts and Gerald‘s questions regarding her political affiliations. (Id. ¶ 30.) Roncales further states that Roberts and Gerald discussed her responses with McDowell and Oughton. (Id.)
Roughly two months later, on April 4, 2017, Roncales met with McDowell and Oughton. (Id. ¶ 32.) During that meeting, McDowell told Roncales that “he believed there were discrepancies between what she told [Roberts and Gerald] and the information provided by the D.C. Metropolitan Police Department.” (Id. ¶ 33.) Either McDowell or Oughton then told Roncales that the police “had a video of her watching the windows of a McDonalds being broken by protesters.” (Id. ¶ 34.) Roncales told McDowell and Oughton that the allegation was not true
Roncales claims that McDowell and Oughton asked her why she tried to disguise herself during the protest. (Id. ¶ 36.) In response, Roncales explained that she “wore simple, nondescript black clothing because she feared being ‘doxxed,’ which is a term used to describe the research and publication of personal details so others can target and harass the individual.” (Id.) McDowell then terminated Roncales and told her that “her actions ‘had made things harder for female firefighters.‘” (Id. ¶ 37.) That same day, McDowell sent an email to the Henrico Fire Department, informing the department that Roncales had been terminated. (Id. ¶ 38.)
3. McDowell Formally Terminates Roncales and A Note is Placed in Her Personnel File Indicating that She Was Terminated for Dishonesty
The next day, on April 5, 2017, McDowell formally terminated Roncales “based on material omissions and failure to be forthcoming during the investigation.” (Id. ¶¶ 39-40.) Roncales “was charged with lying because she did not tell investigators she had a respirator with her in D.C. when she was asked if she had a gas mask.” (Id. ¶ 41.) Roncales states that because she had training on the differences between a respirator and a gas mask, she did not consider the respirator to constitute a gas mask. (Id.) Roncales was also “accused of material omissions because some of the things she told [McDowell] on April 4, 2017 . . . had not previously been revealed.” (Id. ¶ 42.) Roncales claims that she told McDowell that “she had covered identifiable markings on her clothing and backpack and had intermittently covered her face,” but did not tell Roberts or Gerald the same because they “never asked any questions about these items during the investigation.” (Id.) Roncales contends that McDowell charged her with lying and material omissions as a pretext for firing her because of her political beliefs and activities, which he learned about through her Facebook posting. (Id. ¶ 43.)
B. Procedural Background
Based on these allegations, Roncales brings two claims. First, she asserts that Defendants violated her First Amendment rights when they subjected her to adverse treatment and termination “on account of [her] political views and activities accomplished.” (Id. ¶ 53.) Second, Roncales avers that the County of Henrico and McDowell “intentionally, recklessly and in conscious disregard to [her] Fourteenth Amendment due process rights and liberty interests concocted a pretextual and false finding that [she] had lied, or been untruthful and dishonest” during the Fire Department‘s investigation into her arrest. (Id. ¶ 61.) Roncales contends that “[t]he conduct of [the County of Henrico and McDowell], including their false finding of ‘dishonesty,’ has caused and will continue to cause [her] scorn from the public at large and by prospective public safety employees in the future, particularly in the fire-fighting community,” who will view or learn of the information in her file. (Id. ¶ 64.)
In response to the Second Amended Complaint, Defendants filed the instant Motion to Dismiss. Defendants argue that the Court must dismiss Roncales‘s second cause of action, the Due Process Claim, “because she fails to allege the required elements of that claim.” (Mem. Supp. Mot. Dismiss 1, ECF No. 32.) Defendants further aver that the Court must grant the Motion to Dismiss because the individual Defendants are entitled to qualified immunity and that
II. Standard of Review: Rule 12(b)(6)
“A motion to dismiss under
III. Analysis
The Court first evaluates Defendants‘s assertion that the statute of limitations bars Roncales‘s allegations regarding the events that occurred prior to April 3, 2017. The Court then sets forth the two requirements for stating a qualified immunity defense before turning to Roncales‘s First Amendment Retaliation Claim. Next, the Court assesses Roncales‘s Due Process Claim. Because Roncales fails to allege facts to show that the Country of Henrico acted impermissibly, the Court will grant the Motion to Dismiss as to the County of Henrico and to McDowell in his official capacity. The Court will deny the Motion to Dismiss as to (1) the First Amendment Retaliation Claim brought against McDowell, Oughton, Roberts, and Gerald in their
A. The Two-Year Statute of Limitations Does Not Bar Roncales‘s Claims
Defendants argue that the Court may not consider any actions “taken by Defendants before April 3, 2017” because such actions “fall outside of the statute of limitations.” (Mem. Supp. Mot. Dismiss 5.) Because the Court finds that Roncales‘s claims did not begin to accrue until her termination on April 4, 2017, the Court disagrees that the statute of limitations bars consideration of the events leading to her termination.
A defendant may raise the statute of limitations as a bar to the plaintiff‘s claims as an affirmative defense. Dean v. Pilgrim‘s Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005). The defendant bears the burden of establishing a statute of limitations defense. Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). A motion to dismiss pursuant to
Here, it is apparent on the face of the Complaint that the applicable two-year statute of limitations does not bar Roncales‘s claims or the Court‘s consideration of her allegations that took place prior to April 4, 2017. Although
While courts must look to state law to determine the applicable statute of limitations period for a
The face of the Complaint shows that Roncales‘s claims did not begin to accrue until April 4, 2017, when McDowell informed Roncales of the decision to end her employment with the Henrico Fire Department. At that moment, Roncales had “reason to know of the injury,” her termination, “which is the basis of the action.” Id. Roncales filed her initial Complaint on April 3, 2019, within the two-year limitations period, and the events leading to her termination are for
Having decided that the applicable two-year statute of limitations does not bar this action, the Court turns now to Roncales‘s claims against McDowell in his official capacity.
B. Roncales Fails to State a First Amendment Retaliation Claim or a Due Process Claim Against McDowell in his Official Capacity
Roncales brings her First Amendment Retaliation Claim and Due Process Claim against McDowell in his official capacity. Because these claims duplicate of Roncales‘s claims against the County, the Court will dismiss them.
“Official-capacity suits . . . generally represent only another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (internal quotations omitted). “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity” and should be dismissed on the basis that it is duplicative. Id. at 166 (citing Brandon v. Holt, 496 U.S. 464, 471–72 (1985)).
Here, Roncales named as Defendants both the County of Henrico and McDowell, acting in his official capacity. The County had an opportunity to respond, meaning that the claims against McDowell in his official capacity are duplicative. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (recognizing that suits brought against governmental officers in their official capacity are
The Court turns next to Roncales‘s first cause of action, the First Amendment Retaliation Claim. Roncales brings this claim against all Defendants.
C. The Court Will Deny in Part and Grant in Part the Motion to Dismiss as to Roncales‘s First Amendment Retaliation Claim
Roncales alleges facts sufficient to state her First Amendment Retaliation Claim against the individual Defendants, therefore, the Court will allow Roncales to proceed on that claim. Because Roncales does not allege facts sufficient to state her First Amendment Retaliation Claim against the County of Henrico, the Court will dismiss that claim as to the County.
1. At this Procedural Posture, Qualified Immunity Does Not Shield the Individual Defendants from Liability on Roncales‘s First Amendment Retaliation Claim
As to Roncales‘s First Amendment Retaliation Claim, Defendants argue that qualified immunity shields their actions because Oughton, Roberts, and Gerald did not make the decision to terminate Roncales‘s employment, and Roncales “fails to plead any facts to show wrongdoing by Oughton, Gerald, or Roberts.”10 (Mem. Supp. Mot. Dismiss 16.) Individual capacity claims are subject to scrutiny under the doctrine of qualified immunity. Andrews v. City of Norfolk, No. 2:16CV681, 2017 WL 4837707, at *5 (E.D. Va. Oct. 23, 2017). Here, qualified immunity does not shield McDowell, Oughton, Roberts, or Gerald from liability at the Motion to Dismiss stage.
Qualified immunity shields government officials from civil liability when they perform discretionary functions insofar as their conduct does not violate clearly established rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
To overcome qualified immunity a plaintiff must meet a two-step inquiry:
First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was “clearly established” at the time of defendant‘s alleged misconduct.
Pearson v. Callahan, 555 U.S. 223, 232 (2009). (internal citations omitted). “Courts have discretion to take these steps in either order.” Booker v. S.C. Dep‘t of Corr., 855 F.3d 533, 538 (4th Cir. 2017) (citing Pearson, 555 U.S. at 236).
For Roncales‘s First Amendment Retaliation Claim to survive a qualified-immunity based 12(b)(6) motion to dismiss, Roncales must have plausibly alleged in her complaint that Defendants violated her constitutional rights. Tobey v. Jones, 706 F.3d 379, 386–87 (4th Cir. 2013). A complaint need only give the defendants fair notice of what the claim is and the groups upon which it rests. Twombly, 550 U.S. at 555. “A
i. Legal Standard: First Amendment Retaliation Claim
“[A] First Amendment retaliation claim under
As to the first element, the United States Court of Appeals for the Fourth Circuit has held that peacefully participating in a political protest constitutes protected First Amendment activity. Am. Life League, Inc. v. Reno, 47 F.3d 642, 648 (4th Cir. 1995) (“The right to peaceful protest lies near the heart of the freedom of speech.“). With respect to the second element, the determination as to whether a defendant‘s actions “adversely affected [the plaintiff‘s] First Amendment rights,” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005) (citation omitted), is a fact-specific inquiry, which considers the actors involved and their relationships. Balt. Sun Co. v. Ehrlich, 437 F.3d 410, 416 (4th Cir. 2006). As to the third element, causation, a plaintiff must allege facts sufficient to show a causal connection between the First Amendment activity and the alleged adverse action. See Constantine, 411 F.3d
ii. Roncales States a First Amendment Retaliation Claim Against McDowell
Defendants do not argue in the Motion to Dismiss that Roncales fails to state a First Amendment Retaliation Claim against McDowell. In any event, because Roncales‘s allegations satisfy the elements of a First Amendment Retaliation Claim against McDowell, the Court would deny such an argument.
Roncales‘s complaint satisfies all three elements of a First Amendment Retaliation Claim as to McDowell because she alleges that (1) she engaged in a constitutionally protected non-violent protest, (Compl. ¶¶ 17–18);12 (2) McDowell terminated her employment as a result of her participation in that protest and because of her associated political beliefs, (Id. ¶¶ 39, 43); and, (3) the temporal proximity of her protest followed by her termination indicates that McDowell may have engaged in impermissible retaliation, (Id. ¶¶ 15, 18, 43–44). As a result, Roncales has stated a First Amendment Retaliation Claim against McDowell.
The Court finds, at this procedural posture, that Roncales has stated a First Amendment Retaliation Claim as to Oughton, Roberts, and Gerald. As Defendants summarize, “Roncales alleges that all Defendants presumed her dishonesty, subjected her to an investigation, subjected her to successive interrogations under the threat of termination, questioned her political affiliations and viewpoints, made findings as part of an administrative investigation, and falsely stated that she was dishonest without providing her due process.” (Mem. Supp. Mot. Dismiss 18.) These actions, taken together, indicate that Oughton, Roberts, and Gerald may have taken adverse actions against Roncales for her protected political speech, that they so acted because of her political views, and that a causal relationship existed between Roncales‘s engagement in constitutionally protected activity and their conduct. As a result, the factual allegations in the Complaint, viewed as a whole, have facial plausibility sufficient to state a First Amendment Retaliation Claim. Iqbal, 556 U.S. at 678.
The cases Defendants cite in the Motion to Dismiss do not compel a different result. Defendants argue that Roncales‘s allegations as to Oughton, Roberts, and Gerald, including “her investigation and interrogation,” are not actionable. (Mem. Supp. Mot. Dismiss 18.) Defendants point to Suarez Corporation Industries v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000), and Trueman v. United States, No. 7:12-CV-73-F, 2015 WL 1456134 (E.D.N.C. Mar. 30, 2015), aff‘d, 615 F. App‘x 122 (4th Cir. 2015), to support their position that the facts, as alleged, do not suffice to show that Oughton, Roberts, and Gerald engaged in retaliatory activity. Suarez and Trueman are distinguishable from the allegations presented here.
In Suarez, the case came before the court on motions for summary judgment, a different procedural posture than the instant Motion to Dismiss. 202 F.3d at 680. Suarez involved a First
On appeal, the Fourth Circuit first observed that “[d]etermining whether a plaintiff‘s First Amendment rights were adversely affected by retaliatory conduct is a fact intensive inquiry that focuses on the status of the speaker, the status of the retaliator, the relationship between the speaker and the retaliator, and the nature of the retaliatory acts.” Id. at 686. The Fourth Circuit explained that the retaliatory act must be “more than de minimis or trivial.” Id. On one hand, a government employer takes a sufficiently retaliatory action against an employee when the employer makes decisions that relate to the “promotion, transfer, recall, and hiring” of the employee based on the employee‘s exercise of his or her First Amendment rights. Id. (quoting Rutan v. Republican Party, 497 U.S. 62, 79 (1990)). On the other hand, when the government employer takes an action that simply “critici[zes], false[ly] accus[es], or verbal[ly] reprimands” the employee, the action is insufficiently retaliatory. Id. The Fourth Circuit ultimately concluded that the appropriate inquiry to determine whether the defendants had adversely affected the plaintiff‘s “First Amendment speech rights” required examining whether “[the defendants‘s] speech was threatening, coercive, or intimidating so as to intimate that punishment, sanction, or adverse regulatory action will imminently follow.” Id. at 689.
Here, Roncales‘s allegations, taken as true, show that Oughton, Roberts, and Gerald went beyond de minimis or trivial actions. Rather, their alleged actions included (1) McDowell and Oughton moving Roncales to a light position, (Compl. ¶ 19); (2) Roberts and Gerald subjecting Roncales to same day questioning—without accommodating her request to first speak with her
Nor does Trueman compel a different result. In Trueman, the pro se plaintiff based his first amendment retaliation claim on an alleged pending criminal investigation involving the Office of the Inspector General for Veterans Affairs. 2015 WL 1456134, at *13. Specifically, “Trueman allege[d] that [defendant] informed him that he had committed fraud by filing for an Improved Pension in 2005 and that an indictment was coming Trueman‘s way because he plays baseball once or twice a week.” Id. Because there had been no adverse action taken against Trueman apart from the suggestion of an investigation, the district court found that he had failed to state a First Amendment retaliation claim. Id. (“At most, Plaintiff could allege that [defendant] conducted a retaliatory investigation against him.“).
In contrast to Trueman, Roncales does not allege that she suffered a mere retaliatory investigation. Rather, Roncales claims that Defendants terminated her employment immediately after the investigation surrounding her participation in a protest.13 Therefore, Trueman also fails
b. Roncales‘s First Amendment Rights Were Clearly Established
Having determined Roncales sufficiently alleged a First Amendment Retaliation Claim against individual Defendants, the Court must next consider whether Roncales‘s First Amendment rights were clearly established. When deciding whether a right is clearly established, the Court must consider whether it would be clear to a reasonable official that his or her “conduct was unlawful in the situation he [or she] confronted.” Henry v. Purnell, 652 F.3d 524, 534 (4th Cir. 2011) (en banc). For this step of the analysis, the Fourth Circuit has repeatedly “held that it is not required that a right violated already have been recognized by a court in a specific context before such right may be held ‘clearly established’ for purposes of qualified immunity.” Meyers v. Baltimore County, 713 F.3d 723, 734 (4th Cir. 2013) (observing that “officials can still be on notice that their conduct violates established law even in novel factual circumstances“).
i. Roncales Spoke as a Citizen and Her Speech Addressed Matters of Public Concern, Qualifying it For First Amendment Protection
“A bedrock First Amendment principle is that citizens have a right to voice dissent from government policies.” Tobey, 706 F.3d at 391; see also Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1954–55 (2018) (observing the “right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights” and the right to free speech “high in the hierarchy of First Amendment values“). A government employer “cannot condition public employment on a basis that infringes the employee‘s constitutionally protected interest in freedom of expression,” Connick v. Myers, 461 U.S. 138, 142 (1983), and “a public official may not misuse his [or her]
For the statements of a public employee, such as Roncales, to receive First Amendment protection, the public employee must speak as a citizen and address matters of public concern. Grutzmacher v. Howard County, 851 F.3d 332, 344 (4th Cir. 2017). “Speech involves a matter of public concern when it involves an issue of social, political, or other interest to a community.” Id. at 343 (quoting Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc)) (discussing when Facebook activity, a recognized form of speech, pertains to issues of public concern that may qualify it for First Amendment protection).
Roncales alleges that she acted as a private citizen on her own time when attending the political protest and that Defendants terminated her because of her political affiliations. (Compl. ¶¶ 16, 43–44.) At this stage, taking the allegations as true, Roncales has stated the she acted as a private citizen peacefully protesting about a matter of public concern, meaning her speech receives First Amendment protection. Because Roncales‘s speech, which allegedly occurred on her own time in plain clothing, involved a political issue regarding the incoming administration and the inauguration of President Donald Trump, the Court finds that it qualifies for First Amendment protection.
ii. Roncales Alleges that Oughton, Gerald, and Roberts Had Personal Involvement in the Constitutional Violation
Defendants Oughton, Gerald, and Roberts argue that they did not violate Roncales‘s constitutional rights because “[t]here is no clearly established [controlling] case law stating that an investigation constitutes an adverse employment action.” (Mem. Supp. Mot. Dismiss 20.)
This conclusion comports with case law that requires a plaintiff to allege or show a defendant‘s personal involvement in the constitutional violation before
Although McDowell, Oughton, Roberts, and Gerald may yet possess a claim of qualified immunity in their individual capacities, the Court cannot conclusively reach that finding at this stage of the litigation. What the individual Defendants did here may be better explained through discovery. Indeed, case law provides that “where there is a material dispute over what the defendant did . . . it may be that the qualified immunity question cannot be resolved without discovery.” DiMeglio v. Haines, 45 F.3d 790, 795 (4th Cir. 1995). Should discovery reveal there exists no genuine issue of material fact, the individual Defendants can move for summary judgment. See Behrens v. Pelletier, 516 U.S. 299, 306–07 (1996) (recognizing that a defendant can raise the qualified-immunity defense at both the motion to dismiss and summary judgment stage). At this procedural posture, however, the Court concludes that qualified immunity does not protect McDowell, Oughton, Roberts, or Gerald from liability. The Court will deny the Motion to Dismiss as to the individual Defendants.
2. Roncales Fails to State a First Amendment Retaliation Claim as to the County of Henrico
Although the Court will allow Roncales‘s First Amendment Retaliation Claim to continue against the individual Defendants, the Court will dismiss this claim against the County of Henrico because Roncales fails to allege an unconstitutional policy or custom that would subject the County to liability.
a. Monell Limits Locality Liability for § 1983 Claims
Roncales brings her claims pursuant to
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
Through Monell, however, the Supreme Court has expressly cabined the liability of local governments. A local government cannot be held liable solely because one of its employees has violated the constitutional rights of another. Monell, 436 U.S. at 691. “Instead, it is when execution of a government‘s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under
To determine the liability of a local government, courts must “(1) identify the specific policy or custom; (2) fairly attribute the policy and fault for its creation to the [local government]; and (3) find the necessary affirmative link between [the] identified policy or custom and [the] specific [alleged] violation.” Guerrero v. Deane, 750 F. Supp. 2d 631, 656 (E.D. Va. 2010), aff‘d sub nom. Guerrero v. Moore, 442 F. App‘x 57 (4th Cir. 2011).15 The
(1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that “manifest[s] deliberate indifference to the rights of citizens;” or (4) through a practice that is so “persistent and widespread” as to constitute a “custom or usage with the force of law.”
Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting Carter v. Morris, 164 F.3d 215, 217 (4th Cir. 1999)). The Court examines whether Roncales‘s Complaint sufficiently alleges locality liability in conformance with Monell and its progeny.
b. Roncales Fails to State a First Amendment Retaliation Claim Against the County
Here, Roncales‘s Complaint fails to plausibly allege facts showing that the County of Henrico caused the constitutional violation under any of the four Lytle prongs. Regarding the first Lytle prong, Roncales does not allege that the County of Henrico maintained an express policy that led to the constitutional violation. Regarding the third Lytle prong, Roncales did not allege that the County failed to train its employees on free speech. Regarding the fourth Lytle prong, Roncales does not allege that first amendment retaliation practices are so widespread in the County of Henrico that they constitute a custom or usage with the force of law. Nor does she allege that other county employees had been terminated from their employment in retaliation for exercising his or her First Amendment free speech rights.
Nor does Roncales‘s Complaint allege facts sufficient to state a claim of locality liability pursuant to the second Lytle prong, which encompasses the “decisions of a person with final policy making authority.” Id. Roncales alleges that McDowell made the decision regarding her
State and local law establish that McDowell did not have final policymaking authority regarding personnel issues, nor does Roncales‘s Complaint allege otherwise. Although Roncales alleges that McDowell acted as the final decision maker, that does not equate to policymaking authority. Under Virginia law, for the county manager form of government, such as the County of Henrico, “[t]he department of public safety . . . shall be under the supervision of a director of public safety appointed by the county manager.”
Because “a local government may not be sued under
D. The Court Must Deny in Part and Grant in Part the Motion to Dismiss as to Roncales‘s Due Process Claim
Roncales brings her second cause of action—the Due Process Claim—against McDowell and the County. Roncales states a Due Process Claim as to McDowell in his individual capacity. However, Roncales‘s allegations fail to state a Due Process Claim against the County of Henrico. Roncales voluntarily dismissed her Due Process Claim against Oughton, Gerald, and Roberts. Therefore, the Court will grant in part and deny in part the Motion to Dismiss as to Roncales‘s Due Process Claim.
In the Motion to Dismiss, Defendants primarily argue that Roncales fails to allege the required elements for a due process deprivation of liberty interest claim. (Mem. Supp. Mot. Dismiss 5–11.) Defendants then contend that they are entitled to qualified immunity for the Due Process Claim because “their conduct did not violate clearly established constitutional rights of which a reasonable person would have known.” (Id. 13.) For Roncales‘s Due Process Claim to
1. Roncales Alleges a Due Process Claim Based on a Liberty Deprivation
a. Legal Standard: Due Process Deprivation of Liberty Claims
Roncales‘s Due Process Claim arises from the combination of two rights protected by the
To find that Roncales sufficiently alleged her Due Process Claim, the first prong of the qualified immunity inquiry, the Court must consider (1) whether Roncales alleges that she was
b. Roncales‘s Allegations Against McDowell Satisfy the Four Sciolino Prongs
The Court first evaluates Roncales‘s allegations under the four Sciolino prongs. 480 F.3d at 646. In the Motion to Dismiss, Defendants17 contend that Roncales failed to state the required elements of her Due Process Claim because “Roncales fails to identify any specific false or stigmatizing charge made in conjunction with her termination.” (Mem. Supp. Mot. Dismiss 5.) Defendants assert that after picking “through fifty-five paragraphs of her Second Amended Complaint, a court could find – at most – four pieces of information that Roncales claims were communicated about her:” (1) Defendants sharing her Facebook post that was critical of President Trump; (2) disclosing her arrest; (3) notice of her termination; and, (4) placing records in her personnel file. (Id. 5–6.) Taking as true these allegations, Roncales‘s Complaint states a Due Process Claim because the record added to her personnel file satisfies the Sciolino requirements.
The first Sciolino prong requires the Court to determine whether Roncales alleged that the challenged action placed a stigma on her reputation. Sciolino, 480 F.3d at 646. Roncales alleges that she was terminated for “lying” and “material omissions,” and that Defendants “placed or caused to be placed in [her] permanent personnel file the purported basis for her termination, namely a false statement of ‘dishonesty.‘” (Compl. ¶¶ 41–44.) “For over thirty years, [the Fourth Circuit] has held that a governmental disclosure places a stigma on a former employee sufficient to give rise to a liberty interest claim if it implies the existence of serious
The second Sciolino prong requires the Court to determine whether Defendants made the information public. Sciolino, 480 F.3d at 646. Relevant here, the Fourth Circuit has held that “an employee must allege (and ultimately prove) a likelihood that prospective employers (i.e., employers to whom he [or she] will apply) or the public at large will inspect the” personnel file containing the damaging information. Id. at 650 (emphasis added). The Fourth Circuit then described two ways plaintiffs may meet this standard. Id. First, the plaintiff can allege that the defendant releases personnel files to all inquiring employers as a matter of course. Id. Second, the plaintiff can allege that, even though defendant releases files only to certain employers, plaintiff intends to apply to one of those employers. Id. Likewise the Fourth Circuit established nearly thirty years ago that discharged governmental employees, like Roncales, have “a right that [her] personnel file contain no substantially false information with respect to [her] work performance or the reasons for [her] discharge when that information is available to prospective employers.” Ledford v. Delancey, 612 F.2d 883, 887 (4th Cir. 1980).
Reading all well-pleaded factual allegations as true and making all reasonable inferences in favor of Roncales, she plausibly alleges that “any public safety department . . . will have access to” her personnel file and that she “had intended on pursuing a career as a fire-fighter.” (Compl. ¶¶ 11, 45 (emphasis added).) The Fourth Circuit made clear in Sciolino and Ledford that the availability of personnel files to prospective employers may give rise to a
The third Sciolino prong requires the Court to determine whether Defendants made the statement in conjunction with her termination. Sciolino, 480 F.3d at 646. As alleged, Defendants placed the statement regarding Roncales‘s dishonesty in her personnel file either on the same date McDowell terminated her employment or shortly after. (Compl. ¶ 44.) Roncales also alleges that Defendants terminated her employment for “lying” and “material omissions.” (Compl. ¶¶ 41–42.) These allegations satisfy the third Sciolino prong.
Finally, the fourth Sciolino prong requires the Court to determine whether Defendants made a false statement about Roncales. Sciolino, 480 F.3d at 646. At this stage of the litigation, the Court finds that the Complaint plausibly alleges that McDowell made false statements about Roncales‘s veracity during the investigation process and her subsequent termination. Cf. McCray v. Infused Sols., LLC, No. 4:14cv158, 2017 WL 4111958, at *3 (E.D. Va. Sept. 15, 2017) (“At the Motion to Dismiss stage, the Court must accept as false any statements which the Complaint alleges to be false.“). Because Roncales‘s allegations show that McDowell may have made false and stigmatizing charges regarding the grounds for her termination, she has satisfied Sciolino‘s four prongs. As a result, this demonstrates that, as alleged, McDowell deprived her of a protected liberty interest under clearly established law.
c. Roncales‘s Allegations Show Her Liberty was Deprived without Due Process of Law
After establishing that Roncales‘s Complaint satisfies the four Sciolino prongs, the Court must determine whether Roncales‘s allegations could demonstrate that her liberty was deprived without due process of law, the second component of her Due Process Claim. Cannon, 891 F.3d at 501. To that end, the Supreme Court has recognized that, when a governmental employer
Here, Roncales alleges that she never received a name-clearing hearing or the opportunity to present her case before her employment ended at the Henrico Fire Department. Specifically, Roncales claims that Defendants questioned her regarding her participation in a political protest, that she did not have the opportunity to speak to her legal counsel before questioning, that video evidence existed that would have shown she participated in only non-violent protest, that she “told her superiors that her legal counsel had possession of a video demonstrating” the veracity of her claims, (Compl. ¶ 34), and that Defendants used the event as a pretext to terminate her employment from the Henrico Fire Department for her political beliefs. For this claim, Roncales maintains that she was “deprived of the fair and unbiased opportunity for a hearing, whether name-clearing or otherwise, to rebut the Defendants’ representations, and to present her side of the story.” (Compl. ¶ 60.) Based on these allegations, Roncales sufficiently alleges her Due Process Claim.
To complete the qualified immunity analysis, the Court must decide whether the right at issue, Roncales‘s Due Process Claim, was “clearly established” at the time of Defendant‘s alleged misconduct. At this stage, Roncales has alleged a violation of clearly established Due Process rights.
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.” Cannon, 891 F.3d at 497. Case law has long recognized the right to a name-clearing hearing prior to termination of public employment. See, e.g., Fields v. Durham, 909 F.2d 94, 97 (4th Cir. 1990) (noting that the Supreme Court has emphasized “that the Due Process Clause normally requires a hearing before the State deprives a person of liberty or property“); Johnson v. Morris, 903 F.2d 996, 999 (4th Cir. 1990) (accord). As alleged, Roncales states she did not have the opportunity to present her side of the story to McDowell before he made the decision to terminate her employment. Roncales further states that Defendants placed stigmatizing information in her personnel file.
The Court concludes that under clearly established law, McDowell‘s termination of Roncales and the authorization of stigmatizing information placed in her personnel file suffices to state a Due Process Claim based on deprivation of liberty against McDowell in his individual capacity. Fourth Circuit precedent readily establishes that refusing to offer a name-clearing hearing before termination offends due process. Accordingly, the Court will deny the Motion to Dismiss as to Roncales‘s Due Process Claim against McDowell.18
As stated above, the Supreme Court has expressly cabined the liability of local governments through Monell. A local government cannot be held liable solely because one of its employees has violated the constitutional rights of another. Monell, 436 U.S. at 691. “Instead, it is when execution of a government‘s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under
Here, Roncales does not allege that the County of Henrico engaged in its own illegal act regarding her termination or the decision to add stigmatizing information to her personnel file. Roncales does not allege any defective policy or custom on the part of the County regarding pre-termination hearings. Nor does she allege that other county employees had been terminated from their employment without the opportunity for a pre-termination hearing. And, for the same reasons discussed above, McDowell did not act as an official with final policymaking authority regarding personnel issues. Because “a local government may not be sued under
For the foregoing reasons, the Court will grant in part and deny in part the Motion to Dismiss, (ECF No. 31).
An appropriate order shall issue.
/s/
M. Hannah Lauck
United States District Judge
Date: 3/31/2020
Richmond, Virginia
Notes
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, . . . injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.