Douglas Skinner v. Loudoun County

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cv-00006-LO-TRJ Copies to all parties and the district court/agency. [999525602].. [14-1798]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

challenges

the

state

denial

claim
of

of

his

defamation.

motion

for

Skinner

also

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.
was

terminated

head.

for

striking

a

student

(Stephen

Nacy)

in

He
the

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.
undisputed

that

constitutionally
employment.

Skinner
protected

At the time of his termination, it is
was

a

public

property

employee

interest

in

his

with

a

continued

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.”

2

Loudermill, 470 U.S. at 546;

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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

witnesses, and corroborating documents.

of

corroborating

“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
3

Cir.

1999)

(holding

that

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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,

“explanation

859

of

F.2d

17

charges”

the

14,

(4th

was

Cir.

sufficient

1988)
to

(finding

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
charges.

misunderstood
Accordingly,

or
we

expressed
conclude

any

confusion

that

Skinner

about

the

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.
did

not

country;

testify
his

at

Skinner’s

hearsay

hearing

statements

as

were

examination of the County’s investigator.

he

was

admitted

out

Nacy

of

the

through

the

Skinner concedes that

he has no Sixth Amendment right to confrontation in a civil
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but

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he

asserts

that

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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

balancing test should be conducted.

situation;

instead,

a

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

outlined

(7th
in

Cir.

Mathews

1986)
v.

(applying

Eldridge,

the

424

three

U.S.

factor

319,

335

test

(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
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email

and

by

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eyewitness

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testimony,

and

because he was deployed in Afghanistan.

Nacy

was

not

present

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’s

Nacy

appearance.

and
On

moved

appeal,

for

a

Skinner

continuance
does

not

to

permit

present

exculpatory statements or evidence he hoped to elicit.

any

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)
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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.”

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procedural protections discussed above that Skinner did receive,
the failure to show prejudice, and the lack of any absolute
right

to

the

identification

documents,

the

specific

and

process

production
afforded

to

of

relevant

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.
the

district

court

improperly

weighed

Skinner contends that
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

8

in

his

motion

for

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reconsideration, Skinner did not request discovery. 2
arguments against dismissal were waived.

Scottsdale Ins. Co. v.

Flowers, 513 F.3d 546, 553 (6th Cir. 2008).
waived

any

argument

that

summary

Thus, his

judgment

Because Skinner has
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.
legal
before

We dispense with oral argument, because the facts and

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

2

Skinner argued generally
inappropriate “at this juncture.”

9

that

summary

judgment

was