Shearer v. Bowen

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-30357

LEWANA SHEARER,

Plaintiff-Appellee,

VERSUS

KENNETH F. BOWEN,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Louisiana

(97-CV-265)

May 18, 2000

Before EMILIO M. GARZA, DeMOSS and STEWART, Circuit Judges.

PER CURIAM:*

Defendant Kenneth F. Bowen appeals the district court’s denial

of his motion for summary judgment based on qualified immunity.

Because Plaintiff Lewana Shearer has failed to establish violations

*

Pursuant to 5TH CIR. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5TH CIR. R. 47.5.4.

of clearly established law, we vacate the judgment of the district

court and remand for entry of judgment for Bowen on qualified

immunity grounds.

I.

Shearer was a tenured civil servant employed by the City of

Lafayette [“City”] as the division head of the Risk Management

Division. Pursuant to that post, she had the responsibility of

supervising and administering the City’s Group Insurance Program,

Nurse and Wellness Programs, Safety Program, and Property and

Casualty Self Insurance Program. Prior to February 7, 1996,

Shearer had never been reprimanded, demoted, terminated, or

disciplined in her seventeen years of service to the City, and her

evaluations and ratings had been either excellent or superior. On

that date, however, Lafayette Police Detective Don Knetch came to

Shearer’s office and advised her that she was the subject of a

criminal investigation for theft of City funds and malfeasance

arising out of a complaint that she had placed Bowen, the City’s

mayor, under surveillance.

Later that same day, Chief Administrative Officer Mike Mouton1

had Floyd Domingue, Shearer’s supervisor, place Shearer on paid

administrative leave pending an investigation of the operation of

1

Shearer actually alleges that Bowen placed her on administrative

leave. In essence, she appears to be asserting that Mouton’s

actions in this and other situations were committed under the

direction of Bowen.

2

the Risk Management Division. She was ordered to remain at her

residence during her normal working hours so that she could be

reached for information pertinent to the investigation. But

according to Shearer, no calls were ever made to her regarding the

investigation. Instead, she contends that the City never called

her but had marked police units hand deliver letters to her

residence. Furthermore, she alleges that unmarked cars kept her

under surveillance until she complained to the Sheriff’s Office.

During this time, she maintains that Bowen had another City

employee alert the media as to her suspension due to theft of

public funds.

The charges against Shearer were referred to the Lafayette

Parish District Attorney’s Office, which presented the charges to

a grand jury. On March 27, 1996, the grand jury returned a no true

bill, finding no probable cause to prosecute Shearer. Afterwards,

Shearer requested that she be allowed to return to work, but Mouton

notified her that, notwithstanding the grand jury’s action, she was

still on administrative leave because the investigation of the Risk

Management Division had yet to be completed. As a result, Shearer

appealed to the Municipal Civil Services Board (“Board”) for relief

on March 29, 1996. The Board ordered Bowen to report no later than

April 8, 1996, his basis for keeping Shearer confined to her house

and to provide her with the particulars of the charges brought

against her.

Rather than respond, Bowen ordered Shearer to appear for a

3

pre-disciplinary hearing on April 8, 1996. Among the people in

attendance were Marvin Leonard of the Personnel Office, Mayoral

Assistant Lynn Molleck, Assistant City Attorney Mike Miley, the

City’s Fire Chief, Domingue, and Mouton. Miley conducted the

hearing, questioning Shearer as to several matters that had

transpired in the past and that had not resulted in any prior

disciplinary action. Because she could not immediately answer many

of those questions, Shearer was assured that she would have access

to the City’s files and a reasonable time to respond.

Within hours of the hearing, however, Mouton hand delivered a

letter to Shearer, advising her to complete her research of the

City files and to respond to Miley’s requests by 5:00 p.m., Friday,

April 12, 1996. On April 10, 1996, Shearer received for the first

time a written notice of the charges and alleged evidence against

her, including two additional charges that were being considered

against her but which had not been discussed at the pre-

disciplinary hearing. That same day, Bowen entered the room where

Shearer had been assigned to review documents and announced that

Shearer was not to be trusted alone with City documents and gave

instructions that she only handle one file folder at a time and

that she not remove anything from the files despite earlier

promises that Shearer would have unrestricted access to the files.

The following day, Shearer was informed that the deadline for

response was extended, but only to 9:00 a.m., Monday, April 15,

1996.

4

On April 17, 1996, Shearer’s employment was terminated. She

subsequently appealed her firing to the Board, and on May 1, 1996,

the Board reinstated Shearer to her position with full pay and

benefits.

Thereafter, on February 7, 1997, Shearer filed suit under 42

U.S.C. § 1983 against Bowen, alleging various violations of her

constitutional rights. Bowen answered, raising the defense of

qualified immunity. On July 17, 1997, the magistrate judge

assigned to the case filed an order requiring Shearer to file a

Rule 7(a) reply pursuant to Schultea v. Wood, 47 F.3d 1427 (5th

Cir. 1995) (en banc). In her reply, Shearer clarified her claims

as alleged violations of her rights under the First, Fourth, Fifth,

and Fourteenth Amendments. On October 10, 1997, Bowen moved for

summary judgment seeking dismissal based on qualified immunity, to

which Shearer responded. On November 13, 1997, the district court

orally denied Bowen’s motion in a brief hearing, merely stating

that “[t]here are certainly material issues of fact on all issues

in this matter that must be tried and determined by the Court.” On

November 21, 1997, Bowen filed a “Motion for an Order Granting

Interlocutory Appeal” pursuant to 28 U.S.C. § 1292(b), which the

district court granted on December 4, 1997. Consequently, Bowen

filed a “Petition for Permission to Appeal” before this court on

December 15, 1997. We denied that petition because it failed to

provide a statement of the facts necessary to an understanding of

5

the proposed controlling questions of law. But since the petition

had been filed within thirty days of the order denying summary

judgment, we construed the petition as evidencing an intent to

appeal and viewed it as a notice of appeal of right; whereupon, it

now sits before us.

II.

Despite denying Bowen’s interlocutory appeal under 28 U.S.C.

§ 1292(b), we nevertheless requested briefing as to whether his

appeal satisfied the criteria for appealability under the

collateral order doctrine as stated in Mitchell v. Forsyth, 105 S.

Ct. 2806 (1985), and its progeny. In Mitchell, the Supreme Court

noted three characteristics for a decision to be appealable under

the collateral order doctrine: 1) the decision can never be

reviewed unless it is reviewed before the proceedings terminate; 2)

the decision must conclusively determine the disputed question; and

3) that question must involve a claim of right separable from, and

collateral to, rights asserted in the action. See id. at 2815-16.

Based on those criteria, the Court concluded that a “district

court’s denial of a claim of qualified immunity, to the extent that

it turns on an issue of law, is an appealable ‘final decision’

within the meaning of 28 U.S.C. § 1291 notwithstanding the absence

of a final judgment.” Id. at 2817.

More recently, the Court has further clarified the

6

appealability of an order denying qualified immunity, holding that

such an order is not appealable if it merely determines a question

of “evidence sufficiency,” i.e., which facts a party may, or may

not, be able to prove at trial. See Johnson v. Jones, 115 S. Ct.

2151, 2156 (1995). In that kind of sufficiency determination,

nothing more is at stake than whether the evidence could support a

finding that particular conduct occurred, and the question decided

is not truly separable from the plaintiff’s claim. See Behrens v.

Pelletier, 116 S. Ct. 834, 842 (1996). Thus, a summary judgment

order denying qualified immunity is generally not appealable

insofar as it determines whether the pretrial record sets forth a

genuine issue of fact for trial. See Johnson, 115 S. Ct. at 2159.

But not every denial of qualified immunity that includes a

determination that there are controverted issues of material fact

or states the magic words “material issues of fact remain” is

nonappealable. When confronted with such an order that does not

adequately state the controverted factual issues, we may undertake

a review of the record to determine what facts the district court,

in the light most favorable to the nonmoving party, likely assumed

in making its decision. See Johnson, 115 S. Ct. at 2159. Assuming

those facts, we may then determine if the district court erred in

determining a purely legal issue, such as whether the law was

clearly established, see id. at 2156, or whether a defendant’s

conduct was objectively reasonable in light of clearly established

7

law, see Behrens, 116 S. Ct. at 842.

In the present case, the district court ruled that there are

material issues of fact but did not discuss the factual issues

relevant to its decision. Bowen, however, contends that accepting

the nonmovant Shearer’s factual allegations as true, she has failed

to allege violations of any clearly established law or that he was

not objectively reasonable in carrying out his discretionary duties

as the City’s mayor. Since those arguments raise purely legal

issues, we retain jurisdiction to review this appeal.

III.

Shearer’s complaint and her Rule 7(a) reply state several

claims that may summarily be phrased as the following:

1) by placing her on administrative leave and under

surveillance, Bowen violated her freedom of movement and

right to privacy under the Fourth Amendment;

2) the administrative leave and surveillance violated her

right to freedom of association under the First

Amendment;

3) the investigation constituted a criminal prosecution

without probable cause in violation of the Fourth and

Fifth Amendments;

4) her termination resulted in the deprivation of a

property interest without due process of law in violation

of the Fifth and Fourteenth Amendments;

5) the investigation and subsequent termination created

an impression and public perception of criminal activity

on the part of Shearer that deprived her of a liberty

interest in her good reputation without due process of

law.

Bowen, however, maintains that Shearer’s allegations do not amount

to violations of clearly established law and that even if they did,

his actions were objectively reasonable in light of any clearly

established law. We address each of Shearer’s claims in turn.

8

A. The Administrative Leave And Surveillance Did Not Violate Any

Right To Privacy And Freedom Of Movement Under The Fourth

Amendment

According to Shearer, she was required to remain at her

residence during normal working hours pending the conclusion of a

workplace investigation. Moreover, she alleges that unidentified

visitors in unmarked cars maintained surveillance over her

activities. Based on those allegations, Shearer argues that she

was under “arrest” and that her freedom of movement and her right

to privacy were infringed in violation of the Fourth Amendment.

The Fourth Amendment protects “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” Thus, to determine whether

Shearer’s allegations suffice to establish a violation of clearly

established law, we must first ask if they amount to an

unreasonable search or seizure. Shearer maintains that her being

placed on administrative leave and surveilled constituted an

“arrest,” or seizure, for purposes of the Fourth Amendment.

According to Supreme Court precedent, a person has been seized

“‘[o]nly when the officer, by means of physical force or show of

authority, has in some way restrained the liberty of a citizen.’”

United States v. Mendenhall, 100 S. Ct. 1870, 1876 (1980) (quoting

Terry v. Ohio, 88 S. Ct. 1868, 1879 n. 16 (1968)). That is, a

seizure has occurred “if, in view of all of the circumstances

surrounding the incident, a reasonable person would have believed

that he was not free to leave.” Id. at 1877.

Notwithstanding Shearer’s version of the facts, it is clear

that she has not established that she was seized for purposes of a

Fourth Amendment violation. If Shearer had not been on

administrative leave, she would have been required to be at her

place of work during normal working hours as a condition of her

employment, and no one contends that such an employment requirement

is a seizure. Shearer cites to no legal authority that lends

support to the proposition that requiring an employee, who is on

administrative leave with pay while under investigation for

workplace abuse, to remain at home to facilitate communication with

the investigation establishes a seizure within the meaning of the

Fourth Amendment. Although Shearer maintains that unmarked cars

kept surveillance of her at home, she makes no allegations, let

alone offers any evidence, that she felt unable to leave her home,

that the individuals in those unmarked cars prohibited her from

leaving her residence, or that those individuals displayed some

physical force or a show of authority that necessitated her

remaining at home. Accordingly, even accepting Shearer’s factual

account, we see no seizure for purposes of the Fourth Amendment,

and her allegations concerning the “arrest” do not state a

constitutional claim for violation of her freedom of movement.

9

Likewise, we see no clearly established violation of a

constitutional right to privacy under the Fourth Amendment. Before

such a violation may occur, the government action must be

unreasonable or constitute a meaningful interference. See United

States v. York, 895 F.2d 1026, 1028 (5th Cir. 1990) (quoting

National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175

(5th Cir. 1987), aff’d in part, vacated in part and remanded, 109

S. Ct. 1384 (1989)). To aid in this determination, we have

established a two-step analysis. First, we consider whether the

“activity intrudes upon a reasonable expectation of privacy in such

a significant way to make the activity a ‘search.’” Id. Next, if

we conclude that a search has occurred, then we must find whether

the governmental intrusion was unreasonable in light of the

particular facts of the case. See id.

Here, despite Shearer’s account of the facts, the surveillance

instigated by Bowen did not intrude so significantly to constitute

a search. At most, the unmarked cars were outside on a public

street observing those actions of Shearer that could possibly be

viewed. Although the right to privacy in the home is a reasonable

expectation, we have previously noted that not every intrusion so

significantly affects this expectation to amount to a search. See

id. at 1029. For instance, police may look through an open window

from any point on a public thoroughfare or sidewalk without

engaging in a Fourth Amendment search. See id. With that example

as a guide, we must conclude that surveillance by unmarked cars

passing or parked on a public street does not rise to the

constitutional magnitude of a search and that, therefore, Shearer

has failed to establish a violation of her right to privacy under

the Fourth Amendment.

B. The Administrative Leave And Surveillance Did Not Violate Her

Right To Freedom Of Association Under The First Amendment

The administrative leave and the surveillance also form the

backbone of Shearer’s claim that her right to freedom of

association under the First Amendment was violated. The First

Amendment protects the right of association in two ways: 1) to

enter into and maintain certain intimate human relationships, as an

element of personal liberty, and 2) for the purpose of engaging in

expressive activities protected by the First Amendment. See

Wallace v. Texas Tech Univ., 80 F.3d 1042, 1051 (5th Cir. 1996).

There is no generalized right of social association. See id. In

the instant case, Shearer has not alleged nor provided any facts

that would demonstrate that her being required to stay at home

during work hours on administrative leave with pay and under

surveillance interfered with either of the two protections

guaranteed by the First Amendment’s right to freedom of

association. Thus, we conclude that Bowen was improperly denied

10

qualified immunity on this claim.

C. No Malicious Prosecution Occurred To Establish A Violation

Under The Fourth Amendment

Shearer’s third claim alleges that Bowen’s actions constituted

a criminal prosecution without probable cause in violation of the

Fourth and Fifth Amendments.2 In the past, we have recognized that

there is a Fourth Amendment right to be free from malicious

prosecution. See Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir.

1999). But although a number of the procedural protections

contained in the Bill of Rights including the Fifth Amendment’s

privilege against self-incrimination and Double Jeopardy Clause

have been made applicable to the states by the Fourteenth

Amendment, see Albright v. Oliver, 114 S. Ct. 807, 812 (1994), the

Fifth Amendment only applies to violations by a federal actor, see

Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000).

Accordingly, under Shearer’s version of the facts, she may only be

able to state a violation of her Fourth Amendment right to be free

from malicious prosecution.3

To establish a constitutional violation for malicious

prosecution, Shearer must show that all of its common law elements

have been satisfied. See Evans v. Ball, 168 F.3d 856, 862 n.9 (5th

Cir. 1999). Among those elements is a showing that a criminal

action commenced against her. See Kerr, 171 F.3d at 340. Under

Louisiana law, a prosecution is commenced when an indictment is

returned or a bill of information is filed. See State v. Gladden,

257 So. 2d 388, 391 (La. 1972). Here, Bowen had the charges of

theft and malfeasance referred to the district attorney, who then

presented them to the grand jury. The grand jury, however,

returned a no true bill and did not indict her. Consequently,

Shearer has not established that a prosecution commenced against

her, and her Fourth Amendment claim for malicious prosecution must

2

Shearer also vaguely asserts that Bowen’s actions constitute the

use of legal process for a wrongful purpose, which violated her due

process rights. We also interpret this as stating a claim for

prosecution without probable cause and note that there is no

substantive due process right against such a claim. See Albright

v. Oliver, 114 S. Ct. 807, 814 (1994).

3

We construe Shearer’s claim of a “criminal prosecution without

probable cause” as a claim for malicious prosecution because a

prosecution that is unsupported by probable cause but does not rise

to the level of malicious prosecution is not a clearly established

constitutional violation. See Evans v. Ball, 168 F.3d 856, 862 n.9

(5th Cir. 1999).

11

fail.

D. Shearer’s Termination Did Not Deprive Her Of A Property

Interest Without Due Process Of Law

Of Shearer’s remaining two claims, they both concern alleged

violations of the Due Process Clause of the Fourteenth Amendment.4

In the first, she alleges that Bowen’s termination of her

employment violated procedural and substantive due process rights

because it deprived her of a property interest without due process.

Bowen counters that Shearer was provided with notice and a hearing,

a detailed explanation of the City’s evidence against her, and

ample opportunity to present her side of the story.

Before proceeding to the heart of this matter, we must

initially ask if Shearer had a property interest in her employment.

Without a property interest, the Due Process Clause does not come

into play. Bowen does not deny that Shearer had such an interest,

and under Louisiana law, tenured or classified civil servant status

is recognized as a property right that may not be deprived without

due process of law. See Bell v. Department of Health & Human

Resources, 483 So. 2d 945, 949-50 (La. 1985). As such, we may

proceed to whether Shearer’s termination involved a denial of due

process.

“The requisite procedural safeguards mandated by the Due

Process Clause depend upon a balancing of the competing interests

at stake.” See Schaper v. City of Huntsville, 813 F.2d 709, 716

(5th Cir. 1987); see also Glenn v. Newman, 614 F.2d 467, 472 (5th

Cir. 1980). Due to the excessive burden that would be placed on

the government’s interest in quickly removing an unsatisfactory

employee, elaborate pre-termination proceedings are not required.

See Schaper, 813 F.2d at 716. But the opportunity to present

reasons, in person or in writing, why a proposed action should not

be taken is fundamental to the due process requirement. See

Cleveland Bd. of Educ. v. Loudermill, 105 S. Ct. 1487, 1495 (1985).

At the very least, a tenured employee is “entitled to oral or

written notice of the charges against [her], an explanation of the

employer’s evidence, and an opportunity to present [her] side of

the story.” Id.

Based on Shearer’s version of the facts, we find that her

termination did not comply with procedural due process as required

under the Fourteenth Amendment. Although a pre-termination

disciplinary hearing was conducted, Shearer was never presented

with a written explanation of the charges against her until after

4

While Shearer also maintains that Bowen violated her Fifth

Amendment right to due process, that amendment, as previously

noted, pertains to federal, not state, actors.

12

the hearing transpired. Indeed, two of the charges that were

ultimately pressed against Shearer were never discussed at the

hearing. A complete summary of the charges was ultimately provided

to Shearer but that was a mere two days before she was originally

required to respond. Considering the number of files that needed

to be reviewed, the constraints placed on Shearer’s accessibility

to those files, and the broad nature of the charges, we conclude

that Shearer was not afforded the opportunity to present her side

of the story and that the pre-termination procedures did not

conform to constitutional standards.

Nevertheless, any procedural infirmity was cured by Shearer’s

ability to appeal her termination to the Board and its decision to

reinstate her with full pay and benefits. See Schaper, 813 F.2d at

716; Glenn, 614 F.2d at 472. In Schaper, a police officer brought

a § 1983 action against the city, claiming due process violations

arising out of his termination. See Schaper, 813 F.2d at 711.

After he was terminated, he filed an appeal with the city council

as provided for in the city charter and the city’s personnel

policies. See id. at 712. The city council affirmed the

termination. See id. We concluded that the city charter’s

provision granting the right to appeal the original termination

decision to the city council facilitated a finding that there was

no procedural due process violation. See id. at 716.

Glenn also involved a § 1983 suit brought by a police officer

who had his employment terminated. See Glenn, 614 F.2d at 468-69.

While we held that the pre-termination procedures did not conform

to minimum due process requirements, we nonetheless ruled that any

error had been cured by the police officer’s subsequent post-

termination hearing before the mayor and city council. See id. at

472. But we noted that the police officer was entitled to damages

accrued during the period between the original dismissal and the

date of his post-termination hearing and remanded the case back to

the district court for a calculation.5 See id. at 473.

5

In County of Monroe v. United States Dep’t of Labor, 690 F.2d

1359, the Eleventh Circuit criticized and overruled this decision

of the old Fifth Circuit as it pertained to the award of back pay

for a violation of procedural due process. Relying on Carey v.

Piphus, 98 S. Ct. 1042 (1978), and Wilson v. Taylor, 658 F.2d 1021

(5th Cir. Unit B Oct. 1981), the Eleventh Circuit concluded that to

recover more than nominal damages, those damages had to be due to

the procedural defect, and not just the resulting suspension. See

County of Monroe, 690 F.2d at 1362-63. That is, if the correct

procedures had been followed and the plaintiff would still have

been terminated, then back pay did not have to be awarded. See id.

We have yet to endorse this proposition or to overrule Glenn.

13

Since Shearer was afforded an opportunity to appeal her

termination and make her case before the Board, we find that in

light of Schaper and Glenn, any procedural defect in the pre-

termination process was remedied. Furthermore, to the extent that

the Board’s reinstatement of Shearer with full pay and benefits

included back pay, we conclude that there are no other damages to

which she may be entitled.

Similarly, we reject Shearer’s allegations that the

termination violated substantive due process. Although we have

previously recognized that an individual may have a substantive due

process right in continued employment, see Schaper, 813 F.2d at

717, we have also discerned a difference between those rights that

emanate from the Constitution and those that arise under state law,

such as Shearer’s property interest in her employment, see id. at

718. In the latter case, a claim alleging deprivation of

substantive due process is often nothing more than a regurgitation

of a procedural due process claim. See id. Thus, “[w]e regard the

availability of a prompt post-termination administrative hearing as

a significant factor in rejecting [Shearer’s] substantive claim,”

id., and conclude that Bowen is immune from such a claim.

E. The Investigation and Subsequent Termination Did Not Deprive

Shearer Of A Liberty Interest In Her Good Reputation Without

Due Process Of Law

Shearer’s second due process claim, and her last overall

claim, is that Bowen’s actions created an impression and public

perception of criminal activity on the part of Shearer that harmed

her liberty interest in her good reputation in violation of due

process. She contends that Bowen had a City employee alert the

media as to her suspension for theft of public funds.

Generally, a person’s interest in her reputation is one of a

number which a state may protect against injury by virtue of its

tort law,6 see, e.g., Paul v. Davis, 96 S. Ct. 1165-66 (1976), and

standing alone, apart from some tangible interest such as

employment, it is not a sufficient liberty interest to invoke the

procedural protections of the Due Process Clause, see id. at 1160-

61. The weight of the Supreme Court’s decisions establishes “no

constitutional doctrine converting every defamation by a public

official into a deprivation of liberty within the meaning of the

Due Process Clause of the . . . Fourteenth Amendment.” Id. at

1161. But where the asserted liberty interest concerns an

individual’s freedom to work and earn a living and to establish a

home and position in one’s community, the Due Process Clause does

6

Indeed, Shearer has not established, nor even alleged, that

Louisiana extends any legal guarantee of a present enjoyment of

reputation.

14

come into play. See Cabrol v. Town of Youngsville, 106 F.3d 101,

107 (5th Cir. 1997). In those cases, a public employee is deprived

of a protected liberty interest without due process of law “either

if terminated for a reason which was (i) false, (ii) publicized,

and (iii) stigmatizing to his standing or reputation in his

community or if terminated for a reason that was (i) false and (ii)

had a stigmatizing effect such that (iii) he was denied other

employment opportunities as a result.” Id.

Here, Shearer argues that Bowen’s investigatory actions and

her subsequent termination had a stigmatizing effect on her

reputation. The problem with Shearer’s claim, however, is that

while she was initially terminated, she was quickly afforded the

opportunity to appeal her termination, i.e., to provide her side of

the story and to clear her name, and was soon reinstated with full

pay and benefits. This post-termination proceeding validated her

position and vindicated her rights, thus ameliorating any possible

due process violation. See, e.g., Rosenstein v. City of Dallas,

876 F.2d 392, 395-96 (5th Cir. 1989) (disclosing charges against a

discharged employee does not create a liberty interest violation if

procedural due process, such as a post-termination opportunity to

clear one’s name, is afforded to the former employee).

Furthermore, the only evidence of publication concerns Bowen’s

supposed use of an employee to alert the media as to Shearer’s

placement on administrative leave with pay due to allegations of

theft. But at the time of this publication, Shearer had not been

terminated. Thus, there is no indication of Shearer’s termination

on a false basis having been publicized. Accordingly, we infer no

violation of a liberty interest based on Bowen’s investigatory

actions and Shearer’s subsequent termination and reinstatement, and

conclude that Shearer has failed to establish a violation of

clearly established law.

IV.

For the foregoing reasons, we find that the district court

erred in denying summary judgment to Bowen on the ground of

qualified immunity and vacate the judgment of the district court

and remand for entry of judgment for Bowen on qualified immunity

grounds.

15