Flanagan v. Scearce

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

SHERRY ROBERTS FLANAGAN, )

)

Plaintiff, ) Civil Action No. 7:19-cv-00413

)

v. ) MEMORANDUM OPINION

)

RONALD SCEARCE, ) By: Hon. Thomas T. Cullen

) United States District Judge

Defendant. )

After the Pittsylvania County Department of Social Services (“DSS”) Board voted to

remove her as DSS Director, Plaintiff Sherry Roberts Flanagan sued Defendant Ronald

Scearce, a member of the DSS Board and the Pittsylvania County Board of Supervisors.1 In a

nutshell, Flanagan alleges that Scearce violated her federal constitutional rights by

orchestrating a public smear campaign about her stewardship of the DSS and terminating her

for speaking publicly about this perceived mistreatment.

The matter is currently before the court on Scearce’s motion for summary judgment

on Flanagan’s claim that she was wrongfully terminated in retaliation for First Amendment

expression, in violation of 42 U.S.C. § 1983 (Count II), and Flanagan’s claim alleging a

deprivation of due process in conjunction with her termination, in violation of 42 U.S.C.

§ 1983, against Scearce in his individual capacity and in his official capacity as a then-member

1 Scearce is no longer a member of the DSS Board. Flanagan also sued Pittsylvania County, three other DSS

Board members who had voted in favor of her termination, and two Pittsylvania County residents, Henry Hurt

and Victor Ingram, who publicly promoted her ouster. On May 27, 2020, the Honorable Glen E. Conrad,

Senior U.S. District Judge, granted these defendants’ motion to dismiss, leaving Scearce as the sole remaining

defendant. Flanagan v. Pittsylvania Cnty., Va., No. 7:19cv413, 2020 WL 2754754 (W.D. Va. May 27, 2020).

of the DSS Board (Count III).2 In support of this motion, Scearce contends that Flanagan has

failed to present sufficient evidence to support the elements of her First Amendment

retaliation and due process claims. Alternatively, Scearce argues that the doctrine of qualified

immunity bars Flanagan’s due process claim.

Because Flanagan has failed to establish that Scearce made actionable public statements

about her at the time of, or in close temporal proximity to, her August 30, 2018 termination,

she has not established a key element of her due process claim. But even if Flanagan had

satisfied this element, qualified immunity would shield Scearce from personal liability for this

due process claim. The court will therefore enter summary judgment on this claim.3

The court, however, concludes that Flanagan has satisfied the elements of her First

Amendment retaliation claim. Flanagan has presented sufficient evidence that the speech she

gave two weeks before her termination was the determinative factor in Scearce’s—and the

DSS Board’s—decision to fire her, such that a reasonable jury could return a verdict in her

favor. The court will therefore deny summary judgment on the First Amendment retaliation

claim. That claim will be decided by a jury.4

2 Senior Judge Conrad dismissed Flanagan’s defamation claim against Scearce (and the other defendants). See

id. Counts II and III are all that remain.

3 The court will also enter summary judgment on the official capacity claims. Flanagan has failed to establish

the necessary elements for these claims, and Scearce, as a former DSS Board member, is not a proper defendant.

4 And, in so doing, the jury will have a narrow task—deciding only whether Flanagan’s speech two weeks before

her firing was the but-for cause of the termination decision. See Lane v. Anderson, 660 F. App’x 185, 191 (4th

Cir. 2016) (quoting Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (“The first two prongs [of a First

Amendment retaliation claim] present questions of law to be resolved by the court, and the third prong is a

question of fact best resolved on ‘summary judgment only in those instances when there are no causal facts in

dispute.’”).

I. BACKGROUND

In 2006, Flanagan was hired as a DSS Supervisor for Pittsylvania County Department

of Social Services. In 2009, she was promoted to DSS Director, a position she held until the

DSS Board voted to terminate her on August 30, 2018.

Pittsylvania County governs itself through an elected seven-member Board of

Supervisors, of which Scearce is a member. During the events giving rise to this lawsuit,

Scearce also served as a member of the DSS Board, until the Virginia Social Services Board

suspended him in December 2018. Scearce then permanently vacated his seat on the DSS

Board, but he remains a member of the Board of Supervisors.

A. Procedural History

Following her termination, Flanagan commenced this lawsuit against Pittsylvania

County, Nancy Eanes, Patricia Evans, Andrea Johnson, Henry Hurt, William “Vic” Ingram,

and Scearce. Flanagan’s amended complaint included three claims: (1) defamation and

defamation per se against Scearce, Hurt, and Ingram (Count I); (2) First Amendment freedom

of expression retaliation and wrongful termination against the county, Eanes, Evans, Johnson,

and Scearce (Count II); and (3) deprivation of Fourteenth Amendment liberty interests

without due process of law against the county, Eanes, Evans, Johnson, and Scearce (Count

III). (See Am. Compl. [ECF No. 26].)

Defendants thereafter filed a motion to dismiss for failure to state a claim. (See ECF

Nos. 31, 33, 34.) On May 27, 2020, the Honorable Glen E. Conrad, Senior U.S. District Judge,

granted the motion to dismiss for all claims with respect to defendants Hurt, Ingram, Eanes,

Evans, Johnson, and the County.5 See Flanagan, 2020 WL 2754754, at *10. Senior Judge Conrad

likewise dismissed the defamation claim against Scearce. Id. Following these dismissals, just

two of Flanagan’s claims against Scearce remained: (1) deprivation of liberty interest and (2)

First Amendment retaliation.6

Scearce then moved for partial summary judgment on the deprivation of liberty interest

claim, arguing only that Flanagan failed to establish that she suffered the requisite stigma to

her reputation. See Flanagan v. Pittsylvania Cnty., Va., No. 7:19cv413, 2020 WL 4937126, at

*1–2 (W.D. Va. August 24, 2020). Senior Judge Conrad denied this motion on August 24,

2020, finding that Flanagan demonstrated sufficient reputational injury because of the

difficulty she experienced finding a new job and the $25,000 pay cut she was forced to accept

as a result. Id. at *2–3. Scearce now moves for summary judgment on the deprivation of liberty

interest (on different grounds) and First Amendment retaliation claims.

B. Organizational Structure of DSS

A basic understanding of the structure of local social services departments in Virginia

provides valuable context in this case. Under Virginia law, the Commissioner of Social Services

and the State Board of Social Services supervise all local social services departments. See id.

Local social services departments are also overseen by local boards whose members are

5 The court dismissed the claims against Eanes, Evans, and Johnson without prejudice due to Flanagan’s failure

to serve these parties. Flanagan, 2020 WL 2754754, at *1, n.1.

6 These claims are brought against Scearce in his individual capacity and in his official capacity as a member of

the DSS Board. See id. at *10. Senior Judge Conrad dismissed both the First Amendment retaliation claim and

the deprivation-of-liberty-interest claim against Scearce in his official capacity as a member of the County Board

of Supervisors. Id.

appointed by their respective county’s governing authority from a list of candidates provided

by the Commissioner. Id. at *4.

Virginia law establishes two types of social services boards: Administrative and

Advisory. (See ECF No. 101-1 at 22.) Administrative boards, like the DSS Board in Pittsylvania

County, have greater autonomy over their budgets and internal affairs than Advisory boards.7

Administrative boards have the authority to appoint a director of social services to manage

the day-to-day operations in the local department, review the director’s performance, and

terminate a director when necessary. (See ECF 101-1 at 25–27.) But “[b]eyond the power to

appoint local directors, ‘municipalities have no control over the operations of local social

services boards or departments’. . . . Simply stated, local boards report to the Commissioner

and State Board, not to counties.” Flanagan, 2020 WL 2754754, at *4 (quoting Wolf v. Fauquier

Cnty. Bd. of Supervisors, 555 F.3d 311, 322 (4th Cir. 2009)).

DSS was under the supervision of an Administrative board during Flanagan’s tenure as

director. According to Flanagan, Scearce “endeavored to convert the [Pittsylvania County

Department of Social Services] into an Advisory Board” and, in so doing, increase the control

that the Board of Supervisors, of which he was also a member, could exercise over DSS. (Pl.’s

Mem. Opp’n Mot. Summ. J. 4 [ECF No. 101].)

C. Factual Background

In August 2017, Scearce attended a walk-through of DSS in his capacity as a new DSS

Board member. During the tour, he introduced himself to the employees and handed out

business cards. In early 2018, Scearce apparently started receiving complaints from DSS

7 Unlike Administrative Boards, Advisory Boards answer directly to the governing body of the locality.

workers regarding workplace conditions. Based on these complaints, Scearce began to believe

that Flanagan maintained a “hostile work environment.” (ECF No. 86-5 at 5.)

On February 20, 2018, the chairman of the Pittsylvania County Board of Supervisors

sent a letter to the DSS Board chairman expressing concerns about the workplace conditions

at DSS and asking the DSS Board to conduct an independent investigation into the matter.

(Id.) Members of the DSS Board conducted recorded interviews of DSS employees and later

held a public session of the board on April 3, 2018, for members of the public to voice their

concerns. (Id. at 5–6.) While some employees expressed concerns about the environment at

DSS, others spoke positively about their experience with DSS and about Flanagan’s

management. (Id. at 6.) On April 16, 2018, the DSS Board accepted an offer by the Virginia

Department of Social Services (“VDSS”) Commissioner to conduct an organizational

assessment of the DSS. (ECF No. 101-13 at 3.) On June 25, 2018, this investigation concluded

that there appeared to be a “positive work environment” at the DSS and that the department

was complying with all state laws and regulations. (See id. at 1, 39.)

During the period that VDSS conducted its investigation, Ingram was hired to move

forward with an independent investigation into the environment at DSS and specifically

Flanagan’s management of the department.8 Hurt, Scearce, and Ingram began communicating

through e-mail9 about, in Hurt’s words, “the Flanagan mess.” (See ECF No. 101-5 at 331.)

8 It remains unclear who exactly hired Ingram, a former Pittsylvania County Sheriff’s deputy. But Flanagan

contends that Scearce encouraged Hurt to hire Ingram to perform this investigation. (Pl.’s Mem. Opp’n Mot.

Summ. J. 14 [ECF No. 101].) Ingram released his 37-page report on July 27, 2018. (ECF No. 101-12.)

9 Flanagan produced over 700 pages of e-mail communications between Hurt, Scearce, Ingram, and later Evans.

(See ECF No. 101-5.)

These e-mails typically shared proposed news stories written by Hurt, a freelance reporter, that

detailed the DSS controversy. Scearce, Hurt, and Ingram also began posting about the

“corruption” and mismanagement allegations against Flanagan and the DSS on social media

and through news media.10 Scearce encouraged their social media activity in May 2018 by

sending an e-mail to the pair calling their posts “outstanding.” (ECF No. 101-5 at 239). He

remarked in the same e-mail that he wished the posts “were moving the other board members

in the right direction.” (Id.) Scearce emphasized in a later e-mail to Hurt that he “might want

to put the pressure on Sherry [Flanagan] for the time being.” (Id. at 241.)

Scearce also sought to add certain individuals to the DSS Board. In “June or July of

2018” he nominated his “friend” Evans to sit on the Board. (See Dep. of Patricia Evans

10:4–5, 17:4–5, May 21, 2021 [ECF No. 101-11].) According to Flanagan, Evans “was often

commenting on Facebook in favor of what Mr. Scearce was doing, as well as commenting

negatively against [her].” (See Dep. of Sherry Flanagan 171:7–12, May 14, 2021 [ECF No.

101-2].) Scearce also worked to get Ron Merricks to join the DSS Board and attempted to set

up a meeting with him in July of 2018 to make sure he understood the “complete history of

all that has been going on and the opportunity [the DSS Board would] have on Monday [to]

clean the mess up.” (ECF No. 101-8 at 6.) In a May 16, 2018 e-mail to Hurt, Scearce remarked:

“With my appointment of Patricia Evans to the [Social Services Board], and Ron Merricks

getting appointed by Joe Davis, I will have the votes I need to accomplish everything without

the [Board of Supervisors] even getting involved.” (ECF No. 101-5 at 384–85.) But in a DSS

10 Flanagan produced over 140 pages of Facebook posts and news articles related to this incident. (See ECF No.

101-6.)

Board meeting on July 16, 2018, Merricks voted against Scearce’s motion to investigate

Flanagan’s management of DSS; he stepped down from the position soon after. Eanes later

replaced Merricks on the DSS Board.

On July 17, 2018, Scearce gave a speech recounting the allegations that DSS employees

had brought to his attention and the attempts to initiate an independent investigation into the

situation at DSS. In this speech, Scearce said:

If you want to get a clear picture of what those allegations are, I

urge you to follow the social media accounts of Vic Ingram and

Henry Hurt. Mr. Ingram and Mr. Hurt have detailed almost every

allegation that was presented to me by interviewing and

corroborating directly with the people that had the courage to

come forward.

(ECF No. 101-6 at 115.) On July 26, 2018, the Board of Supervisors voted to initiate an

investigation by the Department of Virginia State Police into the “corruption” allegations

against Flanagan and the DSS. (Id. at 1–2.) Scearce spoke positively about this decision in a

Facebook post the next day. (Id. at 34–35.) Over the course of these accusations and

investigations, Flanagan sought—but was never given—an opportunity for a hearing regarding

the allegations before the Board of Supervisors to clear her name.

On August 15, 2018, Flanagan travelled to Richmond, Virginia, to attend a meeting of

the VDSS Board. Flanagan took personal leave time from her position as the DSS director to

attend the meeting and, while there, gave a speech to the state DSS officials in attendance. In

her own words, Flanagan wanted to voice concerns about “the effect that the [social media]

posting and that the media had on the agency.” (Flanagan Dep. at 131:7–9.) She felt “that

there [were] no protection[s] for local directors” and that “[t]he State really has nothing there

that can support directors.” (Id.)

Flanagan declared in her speech that she intended to share with the VDSS an

“experience related to a divide in [her] locality.” (ECF No. 101-16 at 1.) She explained that the

VDSS recently completed an assessment of the Pittsylvania County DSS, at the request of her

local DSS Board and the Board of Supervisors, to address concerns of a hostile work

environment. (Id.) Flanagan specifically mentioned that Scearce “brought and supported” this

accusation. (Id.) Explaining the impact of this event on the DSS, Flanagan continued:

As employees of Social Services, we anticipate and expect public

disagreement with policies, procedures, and difficult decisions we

must make in our jobs each day. When the local Board of

Supervisors, a part of the collective body, publically [sic] demands

State involvement and then denounces the State assessment using

the local newspapers as well as social media, it is an assault on the

Social Services System as a whole.

(Id. at 2.) She concluded her speech with a plea to the VDSS: “We need your help to

accomplish this work in Pittsylvania County as well as every other local agency supported by

this State Board.” (Id.)

Hurt referenced Flanagan’s speech in an e-mail sent to Scearce (among others) on

August 24, 2018. In this e-mail, which appears to contain the text of a news article entitled

“Sherry Flanagan: Catch Me If You Can,” Hurt writes:

But this woman for all seasons, Sherry Flanagan, was just getting

started. When her threatening lawyer’s letter had little effect, her

next stop was in Richmond—accompanied by three of her

workers (on hand to praise her) and by her lawyer . . . . What

came out of that meeting (in which no one represented Ronald

Scearce) is a letter from Virginia Social Services Commissioner

Duke Storen proposing the removal of Supervisor Scearce from

the Pittsylvania Social Services Board.

(ECF No. 101-5 at 677.)

On August 30, 2018, 15 days after Flanagan’s speech in Richmond, Scearce and three

other members11 of the DSS Board voted to terminate Flanagan. (Evans Dep. at 16:19–25.)

Flanagan was not given an opportunity to speak to the DSS Board at this meeting. (Flanagan

Dep. at 173:10–19.) Thereafter, she was unable to find employment with Roanoke, Franklin,

Halifax, and Henry counties or with the cities of Roanoke and Danville. On November 25,

2018, Flanagan accepted a job with the VDSS in Richmond, a three-and-a-half-hour drive

from her residence in Henry County. In this job Flanagan reportedly earns $25,000 less than

she received as the director of DSS, has fewer responsibilities than in her previous role, and

had to start over with her sick and annual leave.

Scearce was later the subject of an investigation by the VDSS regarding his conduct as

a board member and his criticism of VDSS. In October 2018, while Scearce was still under

investigation, Flanagan spoke about the current state of the DSS and her experience with the

DSS Board and the Pittsylvania County Board of Supervisors at a VDSS meeting. Scearce

shared a link to a news article about Flanagan’s speech and wrote this Facebook post:

Ms. Flanagan paints a pretty sad picture, I must say. I hope

someone from the VDSS board will take a little time to talk to

me before they make a decision. I suppose ‘a little time’ might

actually take a day or two if they truly want a clear picture of what

has been going on in our local department, but it is ultimately up

to them. Regardless, kicking me off of our local board will not

stop my efforts to clean our department up. Our citizens,

especially those that need it most, deserve better!

(ECF No. 101-6 at 48.)

11 The other three votes came from Evans, Johnson, and Eanes.

In early December 2018, the VDSS voted to suspend Scearce from the DSS Board.

Scearce again aired his frustrations on Facebook, remarking that he was “truly not surprised

by the actions of the VDSS” and writing:

Thankfully we are making great progress in correcting all of the

issues facing our local department by our recent hiring of a new

director, and are in negotiations with a new law firm that will

actually represent the interests of our local DSS. Those two

accomplishments alone will go a long way to eliminating the

corruption at out [sic] local level.

(ECF No. 101-6 at 89–90.) A December 26, 2018, news article about Flanagan’s new position

quoted Scearce’s response to VDSS’s hiring decision: “I’m truly appalled. For them to hire her

shows their lack of common sense and lack to [sic] manage the state system.” (ECF No.

101-6 at 12.) Scearce later permanently vacated his seat on the DSS Board. He continued to

occasionally post about the DSS on Facebook through October 2019, referring to the

department under Flanagan’s leadership as “once dysfunctional” and noting that the

department now “has been on the right track since the hiring of Chris Spain in January 2019

as the new [local DSS] director.” (ECF No. 101-6 at 100–01, 106–08.)

This case now comes before the court on Scearce’s motion for summary judgment with

respect to the remaining two claims in the case: (1) deprivation of liberty interest and (2) First

Amendment retaliation.

II. STANDARD OF REVIEW

Under Rule 56(a), the court must “grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Glynn v.

EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this determination, the court

should consider “the pleadings, depositions, answers to interrogatories, and admissions on

file, together with . . . [any] affidavits” filed by the parties. Celotex, 477 U.S. at 322. Whether a

fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). “Only disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment. Factual disputes that are

irrelevant or unnecessary will not be counted.” Id. (citation omitted). The moving party bears

the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477

U.S. at 323. If the moving party meets that burden, the nonmoving party must then come

forward and establish the specific material facts in dispute to survive summary judgment.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).

In determining whether a genuine issue of material fact exists, the court views the facts

and draws all reasonable inferences in the light most favorable to the nonmoving party. Glynn,

710 F.3d at 213 (citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)). Indeed, “[i]t is an

‘axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is

to be believed, and all justifiable inferences are to be drawn in his favor.’” McAirlaids, Inc. v.

Kimberly-Clark Corp., 756 F.3d 307, 310 (4th Cir. 2014) (internal alteration omitted) (quoting

Tolan v. Cotton, 572 U.S. 650, 651 (2014) (per curiam)). Moreover, “[c]redibility determinations,

the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge.” Anderson, 477 U.S. at 255. The nonmoving party must,

however, “set forth specific facts that go beyond the ‘mere existence of a scintilla of

evidence.’” Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S. at 252). The nonmoving party

must show that “there is sufficient evidence favoring the nonmoving party for a jury to return

a verdict for that party.” Anderson, 477 U.S. at 249. “In other words, to grant summary

judgment the [c]ourt must determine that no reasonable jury could find for the nonmoving

party on the evidence before it.” Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir.

1990) (citing Anderson, 477 U.S. at 248). Even when facts are not in dispute, the court cannot

grant summary judgment unless there is “no genuine issue as to the inferences to be drawn

from” those facts. World-Wide Rights Ltd. P’ship v. Combe, Inc., 955 F.2d 242, 244 (4th Cir. 1992).

III. ANALYSIS

Flanagan alleges Scearce violated 42 U.S.C. § 1983 in both his individual capacity and

his official capacity as a member of the DSS Board by (1) wrongfully terminating her in

retaliation for speech that was protected under the First Amendment (Count II) and (2)

depriving her of Fourteenth Amendment liberty interests without due process of law (Count

III). The court will address the official capacity claims before analyzing those brought against

Scearce in his individual capacity.

A. Official Capacity Claims

As a preliminary matter, the court concludes that neither claim brought against Scearce

in his official capacity as a member of the DSS Board can survive the motion for summary

judgment. Unlike individual-capacity claims, official-capacity claims “generally represent only

another way of pleading an action against an entity of which an officer is an agent.” Monell v.

New York City Dep’t of Social Servs., 436 U.S. 658, 690 n.55 (1978). An official-capacity action is

therefore “in all respects other than name, to be treated as a suit against the entity” and “is not

a suit against the official personally, for the real party in interest is the entity.” Kentucky v.

Graham, 573 U.S. 159, 166 (1985). This means that official-capacity claims are only actionable

“when the entity itself is a moving force behind the deprivation” and “the entity’s policy or

custom . . . played a part in the violation of federal law.” Id. (internal quotation marks and

citations omitted); see also Davison v. Randall, 912 F.3d 666, 688 (4th Cir. 2019) (noting that

“official capacity suits are treated as suits against the municipality” and that “a municipality is

subject to Section 1983 liability only when its 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

plaintiff’s injury”) (cleaned up).

Flanagan’s official-capacity claims fail for two reasons. First, Flanagan has not shown

that a “policy or custom” of the DSS Board “played a part” in the alleged violations of the

First or Fourteenth Amendments. Flanagan failed to cite any policy or custom that caused or

contributed to her termination and attendant constitutional injuries. To the contrary, Flanagan

contends that Scearce himself, rather than a policy, played the determinative role in the alleged

constitutional violation, and that, in so doing, he essentially acted as a rogue board member,

in contravention of normal board practice.

Second, and perhaps more problematic to Flanagan’s case, Scearce is no longer a

member of the DSS Board. This means any claim brought against him in his official capacity

is no longer viable. Id. at 166 n.11 (“In an official-capacity action in federal court, death or

replacement of the named official will result in automatic substitution of the official’s

successor in office.”). The court will accordingly grant Scearce’s motion for summary

judgment on all official capacity claims brought against him.

B. Individual Capacity Claims

1. First Amendment Retaliation

Flanagan next claims that Scearce wrongfully terminated her in retaliation for the

speech that she gave in Richmond before the VDSS. For a public employee to succeed on a

claim for retaliatory discharge under the First Amendment, a court must find that (1) the

employee was speaking as a private citizen upon a matter of public concern, rather than as an

employee about a matter of personal interest; (2) the employee’s interest in speaking upon a

matter of public concern outweighs the government’s interest in providing effective and

efficient services to the public; and (3) the speech was a substantial factor in the employee’s

termination. McVey v. Stacy, 157 F.3d 271, 277–78 (4th Cir. 1998). “The first two prongs

present questions of law to be resolved by the court, and the third prong is a question of fact

best resolved on ‘summary judgment only in those instances when there are no causal facts in

dispute.’” Lane v. Anderson, 660 F. App’x 185, 191 (4th Cir. 2016) (quoting Love-Lane v. Martin,

355 F.3d 766, 776 (4th Cir. 2004)). In his motion for summary judgment, Scearce focuses on

the third prong, arguing that Flanagan has failed to adduce sufficient evidence from which a

reasonable jury could conclude that her Richmond speech was the “but-for cause” of his—

and the Board’s—decision to fire her. The court disagrees and will deny Scearce’s motion for

summary judgment on this claim.

Although not directly challenged by Scearce, the court is satisfied that Flanagan has

established the first prong of the First Amendment retaliation test because she spoke as a

private citizen in front of the VDSS on a matter of public concern—community divisions

affecting the provision of social services in Pittsylvania County. “[T]he touchstone for deciding

if speech involves a matter of public concern is whether its content implicates the public

welfare.” Carey v. Throwe, 957 F.3d 468, 475 (4th Cir. 2020). Speech that concerns “purely

personal” topics, such as “‘personal grievances, complaints about conditions of employment,

or expressions about other matters of personal interest[,] do not constitute speech about

matters of public concern’ and therefore cannot sustain a First Amendment retaliation claim.”

Id. (quoting Stroman v. Colleton Cnty. Sch. Dist., 981 F.2d 152, 156 (4th Cir. 1992)). To determine

if a public employee is speaking on a matter of public concern or on a purely personal topic,

the court will “look to the ‘content, context, and form of the speech at issue in light of the

entire record.’” Id. (quoting Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000)).

Flanagan took personal time off from work to appear before VDSS as a private citizen

for this speech. She did not specifically discuss any personal attacks made on her by Scearce

or other aggrieved community members. Instead, Flanagan described in her speech the

community’s failure to accept the results of the state audit and the impact it had on the

provision of social services. She described this as “an assault on the Social Services System as

a whole,” and concluded by asking the VDSS to help her department continue providing social

services in Pittsylvania County “as well as every other local agency supported by [the VDSS].”

(ECF No. 101-16 at 1–2.) Considering the content, context, and form of the speech, the court

finds that Flanagan has satisfied the first prong by speaking as a private citizen on a matter of

public concern.

Similarly, Flanagan has satisfied the second prong of the First Amendment retaliation

test because her interest in speaking about this matter of public concern outweighed any

government interest in providing effective and efficient service to the public. The balancing

test element “requires the court to consider the context in which the speech was made and the

extent to which the speech impaired the efficiency of the workplace.” Stultz v. Va. Dep’t Motor

Vehicles, 203 F.Supp.3d 711, 739 (W.D. Va. 2016). The balance of interest weighs heavily in

Flanagan’s favor because her speech actually aimed to improve the effectiveness and efficiency

of the DSS. As Senior Judge Conrad noted, Flanagan “spoke about aiding, not hindering DSS’s

functioning.” Flanagan, 2020 WL 2754754, at *6 (emphasis added). Accordingly, the court

finds that Flanagan has satisfied the second prong of the First Amendment retaliation test.

Scearce argues that Flanagan fails to prove her First Amendment retaliation claim on

the third prong—that her speech was a substantial factor in Flanagan’s termination. This

element requires Flanagan to prove a “causal relationship between the expression of public

concern and the retaliatory action.” See Huang v. Bd. of Governors of Univ. of N.C., 902 F.2d 1134,

1140 (4th Cir. 1990). This requirement is “rigorous” and requires a plaintiff to “show that ‘but

for’ the protected expression the employer would not have taken the alleged retaliatory

action.” Id. Scearce points to the evidence in the record demonstrating that his concern with

Flanagan’s management of the DSS and desire to make changes in the management structure

of the department predated Flanagan’s August 2018 speech to VDSS. Specifically, Scearce

highlights his July 17, 2018, speech before the Board of Supervisors in which he asked for a

closed session to discuss dissolving the DSS Board and moving management and oversight to

a local government official. Scearce argues that this speech, along with the other evidence of

Scearce’s concerns about DSS, foreclose a finding by any reasonable juror that Flanagan’s

speech to VDSS was the determinative factor in her termination.

The court finds, however, that the temporal proximity of Flanagan’s speech on August

15, 2018, and her termination on August 30, 2018, is sufficient to create a genuine issue of

material fact as to whether Flanagan’s speech was the but-for cause of her termination. A

reasonable juror could conclude, from the short two-week interval between Flanagan’s speech

and her termination, that Scearce and the board fired Flanagan in retaliation for these public

comments. The e-mail Scearce received from Hurt on August 24 referencing Flanagan’s trip

to Richmond establishes that Scearce knew about this speech prior to Flanagan’s termination.

Moreover, Hurt’s e-mail specifically mentions that, following Flanagan’s speech, Virginia

Social Services Commissioner Duke Storen wrote a letter “proposing the removal of

Supervisor Scearce from the Pittsylvania Social Services Board.” A reasonable juror could

conclude from these facts that Scearce was motivated to retaliate against Flanagan for giving

a speech that criticized his—and the Board of Supervisors’—efforts to undermine and assert

direct control over the local DSS, and, relatedly, jeopardized his position on the DSS Board.12

Scearce argues that other evidence in the record precludes this finding. Specifically,

Scearce points to the speech he gave before the Board of Supervisors on July 17, 2018, where

he said, “I have reached my wits end” regarding Flanagan’s management of the DSS. (ECF

No. 95-1.) But while this speech, and other evidence of Scearce’s efforts to undermine and

criticize Flanagan in the months leading up to her termination, supports his theory that the

Richmond speech was not the deciding factor, the timing and substance of that speech are

sufficient to create a genuine issue of material fact on this point. Put simply, although a

12 Indeed, the fact that Flanagan gave her speech to state DSS officials in Richmond who had the authority to

take (and later did take) action against Scearce supports this conclusion.

reasonable jury could conclude that Scearce would have fired her anyway, it could also reach

the opposite conclusion. Because this third prong is a “question of fact best resolved on

‘summary judgment only in those instances when there are no causal facts in dispute[,]’” the

court will allow Flanagan’s First Amendment retaliation claim to survive the present motion

for summary judgment. Lane, 660 F. App’x at 191 (quoting Love-Lane, 355 F.3d at 776).13

2. Fourteenth Amendment Liberty Interest

Flanagan also alleges that Scearce violated her Fourteenth Amendment due process

rights by falsely accusing her of corruption in connection with her eventual ouster as DSS

director without giving her the opportunity to clear her name. Public employees enjoy a

Fourteenth Amendment liberty interest in their “good name, reputation, honor, or integrity”

that “is implicated by public announcement of reasons for an employee’s discharge.” Sciolino

v. City of Newport News, 480 F.3d 642, 645–46 (4th Cir. 2007). A plaintiff must satisfy two

components to show that a governmental employer violated her Fourteenth Amendment

rights by publicly disclosing the reasons for her termination. Cannon v. Vill. of Bald Head Island,

891 F.3d 489, 501 (4th Cir. 2018). First, the plaintiff must show that she has been deprived of

a liberty interest; this is done by demonstrating that the charges made against her by her

government employer “(1) placed a stigma on [her] reputation; (2) were made public by the

employer; (3) were made in conjunction with [her] termination or demotion; and (4) were

false.” Id. (quoting Sciolino, 480 F.3d at 646). Second, the plaintiff must demonstrate that her

liberty interest was deprived without due process of law. Id. For this component, “notice and

13 As the court has determined that Flanagan has satisfied the first two prongs of this test as a matter of law, at

trial, the jury’s task will be the narrow one of deciding only the third prong—whether Flanagan’s speech two

weeks before her firing was the determinative factor in the termination decision.

opportunity to be heard are essential.” Id. (quoting Bd. of Regents of State Colls. v. Roth 408 U.S.

564, 573 (1972)).

Liberty interest claims are narrow, and the Supreme Court “has repeatedly admonished

judges to be wary of turning the Due Process Clause into ‘a font of tort law’ by permitting

plaintiffs to constitutionalize state tort claims through artful pleading.” Shirvinski v. U.S. Coast

Guard, 673 F.3d 308, 314 (4th Cir. 2012) (citing Daniels v. Williams, 474 U.S. 327, 332 (1986));

see also Jackson v. Clark, 564 F. Supp. 2d 483, 489–90 (D. Md. 2008) (“To be sure, Plaintiff’s

[liberty interest] due process claim is a narrow one, but a cognizable one nonetheless.”). A

liberty interest claim must therefore be tied to discrete statements made at the time of the

adverse employment action. See, e.g., Paul v. Davis, 424 U.S. 693, 710 (1976) (“Thus it was not

sufficient to establish a claim under § 1983 and the Fourteenth Amendment that there simply

be defamation by a state official; the defamation had to occur in the course of the termination

of employment.”).

As Senior Judge Conrad held in his memorandum opinion denying Scearce’s partial

motion for summary judgment, Flanagan has established that her reputation was stigmatized

because she experienced difficulty securing a new job and could only find a job paying $25,000

less per year than what her position with the Pittsylvania County DSS paid. And for purposes

of summary judgment, Scearce also does not challenge that Flanagan has sufficiently shown

that the statements were false and that she was denied a hearing and “an opportunity to clear

[her] name.” Roth, 408 U.S. at 573 n.12. Scearce, however, argues that Flanagan has not

demonstrated that Scearce was her employer or that he made stigmatizing statements about

Flanagan in conjunction with her termination. The court will address each argument in turn.

a. Employer

Scearce first argues that, as a single member on the DSS Board without the sole

authority to bind the board, he was not Flanagan’s employer for purposes of her liberty interest

claim. The court is not persuaded. At the time of Flanagan’s termination, the DSS Board was

an Administrative Board, meaning it had authority to appoint Flanagan, review her

performance, and terminate her employment. (See ECF 101-1 at 22, 25–27.) Although Scearce

was only a single member on the seven-member DSS Board, the record shows that he worked

directly to nominate board members who would vote to terminate Flanagan and to build

public support for that desired outcome.

The record, viewed in the light most favorable to Flanagan, establishes that Scearce

directly nominated his “friend” Patricia Evans to sit on the DSS Board in “June or July” of

2018, who shortly thereafter voted to terminate Flanagan in August. (See Evans Dep. at

9:14–10:6, 16:19–17:10.) Moreover, Scearce “asked Joe Davis to nominate [Ron] Merricks” to

the DSS Board. (Flanagan Dep. at 99:8–12.) After Merricks was nominated to sit on the DSS

Board, Scearce sought to set up a meeting with him in July of 2018 to ensure he understood

the “complete history of all that has been going on and the opportunity we have on Monday

[to] clean the mess up.” (ECF No. 101-8 at 6.) As Flanagan points out, a reasonable jury could

interpret Scearce’s efforts as “trying to network with Mr. Merricks to have him vote in favor

of dissolving the [DSS] [B]oard.” (Flanagan Dep. at 97:1–98:11.) After Merricks voted against

terminating Flanagan, however, he quickly stepped down. Finally, Scearce indicated in an

August 12, 2018 Facebook message that he would “still try to get in touch with Andrea

[Johnson],” but did not care if he had secured “the votes or not.” (ECF No. 101-22 at 2.)

Flanagan has also established that Scearce fueled public opprobrium to facilitate his

desired outcome in the months leading up to the termination vote. For example, in a May 3,

2018 e-mail, Scearce told Henry Hurt, “Both you and Vic are doing some outstanding posts.”

(ECF No. 101-5 at 239.) Scearce then e-mailed Hurt again two days later, stating that, “[Y]ou

and Vic have been doing some great posts for the masses. I only wish those posts were moving

the other board members in the right direction.” (Id. at 241.) A reasonable jury could infer that

the e-mails reference Hurt’s and Ingram’s Facebook posts about Flanagan. And in a May 16,

2018 e-mail, Scearce told Hurt that he “might want to put the pressure on Sherry [Flanagan]

for the time being.” (Id. at 27.)

Moreover, Flanagan contends that Scearce encouraged Hurt to hire Ingram to

investigate the Pittsylvania County DSS and prepare a report, and the record, when viewed as

a whole, supports this conclusion. (Pl.’s Mem. Opp’n Mot. Summ. J. 14 [ECF No. 101].)

Finally, at the July 17, 2018 Board of Supervisors meeting, Scearce encouraged the public “to

follow the social media accounts of Vic Ingram and Henry Hurt,” because they had “detailed

almost every allegation [of corruption] that was presented to [Scearce] by interviewing and

corroborating directly with the people that had the courage to come forward.” (ECF No.

101-6 at 115.)

In sum, when viewed in the light most favorable to Flanagan, the record shows that

Scearce coordinated a campaign to tarnish her reputation and, ultimately, terminate her

employment. Given his behind-the-scenes efforts and his own role as a voting member, a

reasonable jury could therefore conclude that Scearce acted as Flanagan’s employer for

purposes of her liberty interest claim.

Scearce contends, however, that even if he was Flanagan’s employer he is nonetheless

protected under the doctrine of qualified immunity because it was not clearly established that

a single member of an Administrative Board constitutes an employer for purposes of this

liberty interest claim. The court is constrained to agree.

Qualified immunity “protects government officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Stanton v. Sims, 571 U.S. 3, 5–6 (2013)

(cleaned up); Smith v. Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014); Lucas v. Shively, 31 F. Supp.

3d 800, 810 (W.D. Va. 2014). Evaluating a claim of qualified immunity involves a two-part

test: (1) do the allegations underlying the claim, if true, substantiate a violation of a federal

statutory or constitutional right; and (2) did the actions violate a clearly established right of

which a reasonable person would have known? Smith v. Munday, 848 F.3d 248, 260 (4th Cir.

2017); Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012). As the party asserting qualified

immunity, Scearce has the burden of proving the defense. Meyers v. Balt. Cnty., 713 F.3d 723,

731 (4th Cir. 2013) (citing Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003)).

“For a constitutional right to be clearly established, its contours must be sufficiently

clear that a reasonable official would understand that what he is doing violates that right.”

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks and citation omitted).

Although it is not required that “the very action in question has previously been held unlawful,

. . . in light of pre-existing law the unlawfulness must be apparent.” Id. (cleaned up). “[O]fficials

can still be on notice that their conduct violates established law even in novel factual

circumstances.” Id. at 741. Ultimately, “[t]he ‘salient question’ is whether the state of the law

at the time of the events in question gave the officials ‘fair warning’ that their conduct was

unconstitutional.” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 313 (4th Cir. 2006).

In this case, Scearce did not have unilateral authority to act on behalf of the DSS Board

to terminate Flanagan. See Bd. of Zoning Appeals v. Caselin Sys., 501 S.E.2d 397, 401 (Va. 1998)

(finding that Bland County Board of Supervisors chairman could not bind the Board without

its approval); Leachman v. Bd. of Supervisors, 98 S.E. 656, 658–59 (Va. 1919) (“The chairman of

the board and the clerk had no right or power to issue the warrants until the claims had been

passed upon by the board.”). Scearce instead had to garner support from existing DSS Board

members and recruit new members who would vote in favor of terminating Flanagan. The

court has been unable to find any binding caselaw from the Supreme Court or the Fourth

Circuit holding that a lone member of an administrative board, without authority to bind or

act unilaterally for that body, constitutes an employer for purposes of this Fourteenth

Amendment liberty-interest claim. See Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 538 (4th Cir.

2017) (“In conducting the clearly established analysis, we first examine cases of controlling

authority in this jurisdiction, that is, decisions of the Supreme Court, this court of appeals, and

the highest court of the state in which the case arose.” (cleaned up)). Indeed, in the two leading

Fourth Circuit cases recognizing the liberty interest at issue, the defendants were the

employing government agency itself and individual government officials who were the

recognized agents of those entities. See Sciolino, 480 F.3d at 645 (plaintiff, a former city police

officer, sued the City of Newport News and the police chief); Cannon, 891 F.3d at 493

(plaintiffs, former public-safety officers, sued the Town of Bald Head Island, its town

manager, and the director of emergency services).

Accordingly, although the court finds that a reasonable jury could conclude that

Scearce was acting as Flanagan’s employer for purposes of a liberty-interest claim, it was not

clearly established at the time of Flanagan’s termination that Scearce, as a lone board member,

would be deemed as such and therefore held liable under § 1983. See, e.g., Turner v. Thomas, 930

F.3d 640, 645, 646–47 (4th Cir. 2019) (defendants protected by qualified immunity because

they lacked “fair warning” that their conduct violated federal law and plaintiff failed to a

“allege[] a violation of clearly established law”); Graves v. Lioi, 930 F.3d 307, 332–33 (4th Cir.

2019) (defendants entitled to qualified immunity because they lacked “fair warning that their

conduct was unconstitutional” and it was accordingly “not clearly established” that their

conduct was unlawful). Scearce is therefore protected under the doctrine of qualified

immunity.

b. Made in Conjunction with Flanagan’s Termination

But separate and apart from the court’s finding of qualified immunity related to the

second Sciolino factor, Flanagan has failed to show that Scearce made any stigmatizing

statements about her in conjunction with her August 30, 2018 termination. In other words,

Flanagan has also failed to establish the third element of her liberty-interest claim.

Sciolino itself is not clear as to what “in conjunction” exactly means, but other caselaw

suggests that the statements must be made either concurrently or in very close proximity with

the termination. In Hyman v. Town of Plymouth, for example, the Fourth Circuit held that

statements made a little over one month after the plaintiff’s termination did not give rise to a

liberty-interest claim “because they were made after [the plaintiff] had already been

terminated.” No. 95-2865, 1996 WL 283318, at *2 (4th Cir. May 30, 1996) (per curiam); see also

Siegert v. Gilley, 500 U.S. 226, 234 (1991) (finding that plaintiff did not state a liberty-interest

claim because “[t]he alleged defamation was not uttered incident to [the plaintiff’s] termination

. . . , since he voluntarily resigned from his position . . . and the letter was written several weeks

later”).

Moreover, the Second Circuit has concluded that there must be “a concurrent temporal

link” between the stigmatizing statements and the plaintiff’s termination, ultimately holding

that a five-month gap between the statement and termination was too long. Martz v. Incorporated

Village of Valley Stream, 22 F.3d 26, 32 (2d. Cir. 1994). Both the Eastern District of Virginia

and the District of Maryland have quoted Martz approvingly and held that a plaintiff must

establish a “concurrent temporal link between the defamation and the dismissal” to state a

Fourteenth Amendment liberty-interest claim. Lewis v. Richmond City Sheriff’s Office, No.

3:13cv721-JAG, 2014 WL 2203949, at *5 (E.D. Va. May 27, 2014) (quoting Martz, 22 F.3d at

32); Hamilton v. Mayor & City Council of Balt., 807 F. Supp. 2d 331, 357 (D. Md. 2011) (same).

Finally, in Socol v. Albemarle Cnty. Sch. Bd., Senior Judge Conrad of this court held that a plaintiff

satisfied Sciolino’s third prong because he alleged that the defendant “disclosed the information

at issue concurrently with, or in close proximity to, the plaintiff’s termination.” 399 F. Supp.

3d 523, 539 (W.D. Va. 2019).

At bottom, there is simply no evidence of any publicly stigmatizing statements that

Scearce made about Flanagan concurrently with or in close proximity to her August 30, 2018

termination. Flanagan points to no specific statement by Scearce in her brief, and after

reviewing hundreds of pages of Scearce’s Facebook posts, Facebook messages, e-mails, and

public comments the court has found only one statement that could possibly support her

claim. As discussed above, at the July 17, 2018, Pittsylvania County Board of Supervisors

meeting Scearce spoke about receiving allegations of corruption at the Pittsylvania County

DSS and stated:

If you want to get a clear picture of what those allegations are, I

urge you to follow the social media accounts of Vic Ingram and

Henry Hurt. Mr. Ingram and Mr. Hurt have detailed almost every

allegation that was presented to me by interviewing and

corroborating directly with the people that had the courage to

come forward.

(ECF No. 101-6 at 115.) Assuming that it was stigmatizing for purposes of a liberty interest

claim, Scearce made the statement nearly six weeks before Flanagan’s August 30, 2018,

termination, well beyond what can reasonably constitute “concurrently with, or in close

proximity to, the plaintiff’s termination.” Socol, 399 F. Supp. 3d at 539.

Scearce’s statements in the months after Flanagan’s termination do not support her

liberty interest claim either. In October 2018, Scearce posted on his public Facebook page a

link to an October 17, 2018, news article and included the following commentary:

Ms. Flanagan paints a pretty sad picture, I must say. I hope

someone from the VDSS board will take a little time to talk to

me before they make a decision. I suppose ‘a little time’ might

actually take a day or two if they truly want a clear picture of what

has been going on in our local department, but it is ultimately up

to them. Regardless, kicking me off of our local board will not

stop my efforts to clean our department up. Our citizens,

especially those that need it most, deserve better!

(ECF No. 101-6 at 48.) And finally, in a December 26, 2018, Chatham Star-Tribune article on

Flanagan accepting a new job with the VDSS in Richmond, Scearce is quoted as stating both

that, “[f]or them to hire her shows their lack of common sense and lack to [sic] manage the

state system,” that he was “truly appalled,” and he would need “to look for the governor to

get involved with this mess. There are children dying on the watch of DSS.” Id. at 13. These

statements were not made in close proximity to Flanagan’s termination, but instead months

later.14 See, e.g., Hyman, 1996 WL 283318, at *2 (finding that the allegedly defamatory statements

did not give rise to a liberty interest claim “because they were made after [the plaintiff] had

already been terminated”); Lewis, 2014 WL 2203949, at *5 (“The plaintiff must establish a

‘concurrent, temporal link between the defamation and the dismissal.’” (quoting Hamilton, 807

F. Supp. 2d at 357)). The court has been unable to find any other possibly actionable

statements made by Scearce, and Flanagan has not pointed to any.

Although Flanagan is correct that both the Ninth and Tenth Circuits have held that the

allegedly defamatory statement need not be exactly contemporaneous with the plaintiff’s

termination to support a liberty interest claim, the caselaw she cites does not support her

position. The Tenth Circuit concluded in Renaud v. Wyoming Department of Family Services that

“publication of defamatory statements need not be strictly contemporaneous with a

termination to occur in the course of the termination of employment,” but that case is not

helpful to Flanagan because (1) the allegedly defamatory statement was made only four days

following the announcement of the plaintiff’s termination, and (2) the court ultimately

concluded that “the alleged defamation had nothing to do with the reasons for termination . .

. .” 203 F.3d 723, 726–27 (10th Cir. 2000). And although the Ninth Circuit in Campanelli v.

14 The court also notes that Scearce’s later statements were not about her termination, but a state investigation

of Scearce’s conduct as a board member and his criticism of VDSS for, among other things, hiring Flanagan

into a new role. Moreover, the VDSS Board had already suspended Scearce from his position on the Pittsylvania

County DSS Board when he was quoted in the Star-Tribune article. See Halle Parker, In a 5-3 Vote, State Group

Suspends Member from Pittsylvania County DSS Board, Danville Register & Bee (Dec. 12, 2018), https://

godanriver.com/news/pittsylvania_county/in-a-5-3-vote-state-group-suspends-member-from-pittsylvania-

county-dss-board/article_d955d1be-fe4d-11e8-8fbf-6ffe83397599.html (last visited Aug. 20, 2021).

Bockrath similarly refused to adopt a bright-line rule that defamatory statements made after the

plaintiff’s termination could not support a liberty-interest claim, only a “seven- to nine-day

interval between the termination date and the publication of the defendant’s statements”

existed. 100 F.3d 1476, 1482–82 (9th Cir. 1996). Scearce’s statements in October and

December 2018 were far outside these relaxed temporal limits.

Likely recognizing that Scearce’s statements do not carry her burden, Flanagan argues

that various statements made by her other public critics—specifically Ingram and Hurt—

should be imputed to Scearce for purposes of satisfying this element. In support of this

attenuated theory, Flanagan points out that two DSS Board members testified that they voted

to terminate Flanagan because of both the Ingram Report “done at Mr. Scearce’s behest” and

the hostile work allegations Scearce had raised against Flanagan. (Pl.’s Mem. Opp’n Mot.

Summ. J. 20 [ECF No. 101].) She contends that Scearce “recruited Mr. Hurt and Mr. Ingram

to embark on his smear campaign against Ms. Flanagan,” and that his “use of Mr. Hurt and

Mr. Ingram in his grand smear campaign imputes liability on Mr. Scearce.” (Id. at 22.)

The court does not agree. First, the court has been unable to identify any Fourth Circuit

liberty interest precedent holding a government official personally liable for statements made

by private citizens wholly removed from the decision to terminate government employment.

But even assuming that critical or defamatory statements made by others could be imputed to

a government employer, Flanagan still fails to point to any actionable public statements of

Hurt or Ingram that were made at the time of her termination. While both men were certainly

critical of Flanagan in the months leading up to her ouster, the record is devoid of any public

statements they made in the days leading up to or immediately following her termination

discussing the purported reasons for that termination. Had Scearce reached out to Hurt or

Ingram either on or within a few days of Flanagan’s termination and encouraged them to

broadcast on social and traditional media about her firing and the purported reasons for it,

this would be a closer case. But that did not happen here, and Hurt’s and Ingram’s critical

statements in the months before the DSS Board voted to terminate Flanagan—even if they

could be imputed to Scearce because he encouraged and supported them—are too far

removed, both temporally and substantively, to satisfy the third element of a liberty interest

claim. In sum, Flanagan has also failed to demonstrate Scearce made a defamatory statement

about her in conjunction with her termination.

IV. CONCLUSION

For these reasons, the court will grant summary judgment to Scearce with respect to

Flanagan’s Fourteenth Amendment liberty-interest claims and all claims against Scearce in his

official capacity as a DSS Board member. The court will deny Scearce’s motion for summary

judgment as to Flanagan’s First Amendment retaliatory discharge claim. That claim will be

tried to a jury.

The Clerk is directed to forward a copy of this Memorandum Opinion and the

accompanying Order to all counsel of record.

ENTERED this 23 day of August, 2021.

__/_s/_ _T_h_om__as_ T__. _C_u_ll_en_ _______________

HON. THOMAS T. CULLEN

UNITED STATES DISTRICT JUDGE