Filed: Feb. 09, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1798 DOUGLAS SKINNER, Plaintiff – Appellant, v. LOUDOUN COUNTY DEPARTMENT OF MANAGEMENT AND FINANCIAL SERVICES, HUMAN RESOURCES DIVISION; LOUDOUN COUNTY DEPARTMENT OF FIRE RESCUE AND EMERGENCY MANAGEMENT; WILLIAM KEITH BROWER; JOSE SALAZAR; ROGER MARTIN; JAMES WILLIAMS; PATTY RUSSELL; STEVEN VAN WINKLE; FRANK HOLTZ; ROBERT NOE; COREY PARKER; STEPHEN NACY; MATTHEW BISGAIER; KAREN REIDY; JAMES CROMER, Defendants - Appellees.
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1798 DOUGLAS SKINNER, Plaintiff – Appellant, v. LOUDOUN COUNTY DEPARTMENT OF MANAGEMENT AND FINANCIAL SERVICES, HUMAN RESOURCES DIVISION; LOUDOUN COUNTY DEPARTMENT OF FIRE RESCUE AND EMERGENCY MANAGEMENT; WILLIAM KEITH BROWER; JOSE SALAZAR; ROGER MARTIN; JAMES WILLIAMS; PATTY RUSSELL; STEVEN VAN WINKLE; FRANK HOLTZ; ROBERT NOE; COREY PARKER; STEPHEN NACY; MATTHEW BISGAIER; KAREN REIDY; JAMES CROMER, Defendants - Appellees. A..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1798
DOUGLAS SKINNER,
Plaintiff – Appellant,
v.
LOUDOUN COUNTY DEPARTMENT OF MANAGEMENT AND FINANCIAL
SERVICES, HUMAN RESOURCES DIVISION; LOUDOUN COUNTY
DEPARTMENT OF FIRE RESCUE AND EMERGENCY MANAGEMENT; WILLIAM
KEITH BROWER; JOSE SALAZAR; ROGER MARTIN; JAMES WILLIAMS;
PATTY RUSSELL; STEVEN VAN WINKLE; FRANK HOLTZ; ROBERT NOE;
COREY PARKER; STEPHEN NACY; MATTHEW BISGAIER; KAREN REIDY;
JAMES CROMER,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:14-cv-00006-LO-TRJ)
Submitted: January 30, 2015 Decided: February 9, 2015
Before KING, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas K. Plofchan, Jr., WESTLAKE LEGAL GROUP, Potomac Falls,
Virginia, for Appellant. Julia B. Judkins, BANCROFT, MCGAVIN,
HORVATH & JUDKINS, P.C., Fairfax, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Douglas Skinner appeals from the district court’s
orders granting summary judgment on his 42 U.S.C. § 1983 (2012)
complaint, which alleged federal and state due process claims as
well as a related state claim of defamation. Skinner also
challenges the denial of his motion for reconsideration.
Skinner’s claims arise from his termination from his job as an
emergency medical services training officer with the Loudoun
County Department of Fire Rescue and Emergency Management. He
was terminated for striking a student (Stephen Nacy) in the
head. For the reasons discussed below, we affirm.
I.
Skinner first asserts that he had a due process right
to know the substance of the evidence asserted by Loudoun County
prior to his termination. At the time of his termination, it is
undisputed that Skinner was a public employee with a
constitutionally protected property interest in his continued
employment. As such, he could not be fired without due process.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985).
Thus, Skinner was entitled, prior to his termination, to be
given “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.”
Loudermill, 470 U.S. at 546;
2
see Riccio v. County of Fairfax, 907 F.2d 1459, 1463 (4th Cir.
1990).
Skinner has never claimed that he did not receive
notice of Loudoun County’s intent to terminate his employment or
that he did not have an opportunity to present his side of the
story. Skinner does, however, contend that Defendants failed to
provide him with an explanation of its evidence. While Skinner
admits that he was made aware of the allegations against him, he
avers that he was never told what the actual evidence was.
Specifically, Skinner was not aware, prior to his termination,
of the identity of an eyewitness (Nathan Wise), that Nacy had
told someone else that Skinner struck him, or that Nacy had sent
a relevant email.
However, Skinner cites no case law supporting his
assertions that he was entitled, prior to his termination, to
names of eyewitnesses, names and details of corroborating
witnesses, and corroborating documents. “Due process does not
mandate that all evidence on a charge or even the documentary
evidence be provided, only that such descriptive explanation be
afforded as to permit [the employee] to identify the conduct
giving rise to the dismissal and thereby to enable him to make a
response.” Linton v. Frederick County, 964 F.2d 1436, 1440 (4th
Cir. 1992); see also Ryan v. Illinois Dep’t of Children & Family
Svcs,
185 F.3d 751, 761-62 (7th Cir. 1999) (holding that
3
employee is entitled to an explanation of why he is being fired
but not all relevant documentary support); Harrison v. Wille,
132 F.3d 679, 684 (11th Cir. 1998) (opining that Loudermill
requires only that the employee be given “the opportunity to
respond after being confronted with the charges” (internal
quotation marks omitted)); Crocker v. Fluvanna County Bd. of
Pub. Welfare,
859 F.2d 14, 17 (4th Cir. 1988) (finding
“explanation of the charges” was sufficient to satisfy due
process).
The record makes clear that Skinner was informed that
he was charged, on a specific date, with harassing, hitting, and
kicking Nacy. He also was told that there was another witness
to the altercation. Skinner understood the charges sufficiently
to prepare a detailed response, and there is no evidence that
Skinner misunderstood or expressed any confusion about the
charges. Accordingly, we conclude that Skinner received a
sufficient explanation of the evidence against him.
II.
Next, Skinner contends that he was deprived of his
right to confront Nacy before and after his termination. Nacy
did not testify at Skinner’s hearing as he was out of the
country; his hearsay statements were admitted through the
examination of the County’s investigator. Skinner concedes that
he has no Sixth Amendment right to confrontation in a civil
4
case, but he asserts that he has a due process right to
confrontation under the Fifth and Fourteenth Amendment.
There is no absolute due process right to confront and
cross-examine an accuser in such a situation; instead, a
balancing test should be conducted. See Rodgers v. Norfolk Sch.
Bd., 755 F.2d 59, 63 (4th Cir. 1985) (holding that deprivation
of direct confrontation of accusers was not an “indispensable
element of due process” and that, instead, it was proper to
weigh the other procedural safeguards given in the case against
“the obvious countervailing risks of emotional trauma” for the
accusers); Papapetropoulous v. Milwaukee Transp. Svcs.,
795 F.2d
591, 598 (7th Cir. 1986) (applying the three factor test
outlined in Mathews v. Eldridge,
424 U.S. 319, 335 (1976):
(1) the private interest affected; (2) the risk of an erroneous
deprivation and the probable value of additional procedural
safeguards; and (3) the Government’s interest).
In the instant case, the weighing of the appropriate
factors leads to the conclusion that Skinner was not deprived of
due process. He was informed of the charges against him, the
name of his accuser, and the fact that there was at least one
other eyewitness to the incident. At the hearing, he presented
evidence, testified on his own behalf, called a corroborating
witness, and cross-examined Loudoun County’s witnesses. Nacy’s
hearsay statements to the investigator were corroborated by an
5
email and by eyewitness testimony, and Nacy was not present
because he was deployed in Afghanistan. While Skinner contends
that he was prevented from asking questions regarding Nacy’s
motivations, impression, and agenda, he could have offered that
evidence (if there was any) through other sources and/or could
have subpoenaed Nacy and moved for a continuance to permit
Nacy’s appearance. On appeal, Skinner does not present any
exculpatory statements or evidence he hoped to elicit. Given
the remaining procedural safeguards in place, the lack of any
evidence of prejudice, and the fact that Nacy was deployed in
Afghanistan, we conclude that Skinner was not unconstitutionally
deprived of an opportunity to challenge his termination.
III.
Skinner avers that Loudoun County’s failure to comply
with Loudoun County Human Resources Personnel Policies (“LCPPP”)
§ 11.11(B) violated his due process rights because he was not
able to review relevant documents with enough time to prepare
his defense. Section 11.11(B) provides for an employee’s access
to “relevant files” at least ten days prior to the hearing.
Setting aside the hotly disputed question of whether Loudoun
County violated the County ordinance at all, 1 we conclude that,
1
Skinner concedes that violation of a county ordinance
would not contravene federal due process, see Morris v. City of
Danville, 744 F.2d 1041, 1048 n.9 (4th Cir. 1984). Instead, he
(Continued)
6
even if there was error, Skinner has not shown a due process
violation.
Again, the sufficiency of the procedures employed in
any particular situation must be judged in light of the parties,
the subject matter, and the circumstances. Grimes v. Nottoway
Cnty. Sch. Bd., 462 F.2d 650, 653 (4th Cir. 1972). Although
Skinner received most relevant documents pursuant to the Freedom
of Information Act (“FOIA”), he asserts that his FOIA requests
only resulted in redacted documents that did not identify the
potential eyewitnesses. Moreover, the documents produced by
Loudoun County five days prior to the hearing identified Nathan
Wise as a witness but did not indicate that he was one of the
eyewitnesses. As such, Skinner avers that he was not able to
adequately prepare to defend himself.
Loudoun County made it clear that Skinner could review
their files if he so requested, even though in the County’s
opinion Skinner had missed the ten-day deadline. However, the
joint appendix does not show that Skinner ever requested any
files or documents. Moreover, he was clearly aware that the
investigator’s notes identified eyewitnesses, and he could have
requested to review the unredacted notes. Finally, given the
contends that “LCPPP 11.11(B) does not grant more procedural
rights than what is protected by the Constitution.”
7
procedural protections discussed above that Skinner did receive,
the failure to show prejudice, and the lack of any absolute
right to the identification and production of relevant
documents, the specific process afforded to Skinner was
constitutionally adequate.
IV.
Finally, Skinner argues that his defamation claims
were improperly dismissed for failure to produce evidence of
malice. Skinner avers that his allegations that the Defendants
“intentionally made false statements to the County” were
sufficient for a reasonable inference that the Defendants acted
with malice. Moreover, he asserts that the claim was dismissed
prior to an answer being filed and before any discovery was
exchanged, so any ruling was premature. Skinner contends that
the district court improperly weighed the facts alleged and
contained in the record and usurped the role of the jury.
However, after Defendants filed their motion for
summary judgment, Skinner did not address the defamation claim
in his response, his own motion for summary judgment, or his
reply. He objected, for the first time, in his motion for
reconsideration. Moreover, even in his motion for
8
reconsideration, Skinner did not request discovery. 2 Thus, his
arguments against dismissal were waived. Scottsdale Ins. Co. v.
Flowers, 513 F.3d 546, 553 (6th Cir. 2008). Because Skinner has
waived any argument that summary judgment on his defamation
claim was premature, and because Skinner presented no details or
specific allegations of malice, we reject his claim on appeal.
Based on the foregoing, we affirm the district court’s
judgment. We dispense with oral argument, because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
2
Skinner argued generally that summary judgment was
inappropriate “at this juncture.”
9
