McCormick v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 5, 2013 Decided May 27, 2014

No. 12-7115

EMMETTE MCCORMICK, JR.,

APPELLANT

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-cv-00570)

Robert C. Seldon argued the cause for appellant. With him

on the briefs was Lauren E. Marsh.

Holly M. Johnson, Assistant Attorney General, Office of the

Attorney General for the District of Columbia, argued the cause

for appellees. With her on the brief were Irvin B. Nathan,

Attorney General, Todd S. Kim, Solicitor General, and Donna

M. Murasky, Deputy Solicitor General at the time the brief was

filed.

Before: BROWN, Circuit Judge, and WILLIAMS and

SENTELLE, Senior Circuit Judges.

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Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

SENTELLE, Senior Circuit Judge: Emmette McCormick, Jr.,

a discharged supervisory employee of the District of Columbia

Department of Corrections, brought this action against the

District and two of its officials, alleging violations of his rights

under the District’s whistleblower statute and of his liberty

interests under the Fifth Amendment. He appeals from the

district court’s grant of summary judgment in the defendants’

favor on all counts. Because we agree with the district court that

there is no genuine issue of material fact and that the defendants

are entitled to judgment as a matter of law, we affirm the grant

of summary judgment.

I. BACKGROUND

A. Factual History

In 2006, appellant was a Supervisory Correctional Officer

with the District of Columbia Department of Corrections. In

that capacity, he was an at-will employee in the Management

Supervisory Service. On January 13 of that year, approximately

100 inmates were mistakenly released from their cells at the

central detention facility, where McCormick served in his

supervisory capacity. Numerous correctional officers, including

appellant, responded to the situation to get the inmates back into

their cells. McCormick maced at least two inmates after they

did not follow his instructions. During the disturbance, some

inmate on a higher floor threw a bucket of ice water over

McCormick. He did not see which inmate was responsible.

Later evidence identified Michael Tobias as the inmate who had

thrown “a watery liquid substance” at McCormick. After order

was largely restored in the facility, McCormick had Tobias

brought to the sally port, an enclosed entry and security area,

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and confronted him there. The parties do not agree on precisely

what occurred there.

At the conclusion of the disturbance, each on-duty officer

was required to file a “Report of Significant Incident.” Such

reports, required to be filed following any out-of-the-ordinary

event at the detention facility, should include any use of force by

a corrections officer on an inmate or physical assault on a

corrections officer by an inmate, as well as any injuries to an

officer or inmate. None of the reports filed the day of the

incident reported McCormick as having struck Tobias.

A few days after the incident, someone representing herself

as a member of Tobias’s family sent an email to a city council

member, alleging that after the ice water incident, McCormick

had Tobias escorted to the enclosed sally port and struck him in

the face and ear while six other guards held him. The email was

forwarded to the Department of Corrections and passed on to

Internal Affairs for investigation. Wanda Patten, Chief of

Internal Affairs, directed investigator Valerie Beard to conduct

the investigation.

As we set forth the results of the investigation, we note that

the parties disagree as to the truth of the statements obtained and

the accuracy of the investigators’ conclusions. However, as is

pertinent to the case before the district court on summary

judgment, there is no genuine issue of fact as to what the

investigation reports, only as to the accuracy of the witness

statements obtained by the investigators, which is not a matter

for the court’s review.

One corrections officer, Jimmy Harper, stated under oath

that after the inmates were returned to their cells, McCormick

inquired at the control module where Harper was stationed about

the inmate who had thrown water on him. Harper then helped

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McCormick find Tobias in his cell and Tobias “was escorted to

the sally port.” Then, when Harper was returning to the control

module, he witnessed McCormick slap the handcuffed inmate

while saying to him, “You better never throw s*** on me

again.”

Another corrections officer, David Thomas, stated under

oath that he remembered the inmate being taken from his cell in

handcuffs to the sally port. He also saw McCormick strike the

handcuffed inmate with his open hand.

Corrections officer Kirkland Marion testified that he

accompanied McCormick and five other officers to Tobias’s cell

and that Tobias was taken from the cell in handcuffs to the sally

port. Although Marion did not accompany McCormick, the

other officers, and Tobias to the sally port, he arrived there

sometime after they did. When he was there, he saw and heard

McCormick yelling, “Don’t ever throw s*** at me again.” He

did not, however, see McCormick strike Tobias.

Senior correctional officer James McElhaney told Internal

Affairs that he saw “McCormick yelling at Tobias” in the sally

port and that McCormick was “in Tobias’s face and Tobias had

on handcuffs.” McElhaney witnessed the incident through the

glass of a closed door and could not hear what McCormick was

saying. However, he discerned from McCormick’s gestures that

McCormick was yelling. Like Marion, McElhaney did not see

McCormick strike Tobias. Two other officers gave accounts of

events in the sally port in which they apparently confused

Tobias with one of the inmates who had been maced, but neither

of them reported seeing McCormick strike anyone. Ten other

correctional officers were interviewed and reported they had not

witnessed the incident.

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Although Tobias initially refused medical care, writing “I

feel better,” he later asserted that he made that refusal after

McCormick had threatened to put him in lockdown. The day

after the incident, a doctor examined Tobias and found that his

right ear had a small streak of blood about 4mm long, lying

across the eardrum, and that he had suffered mild trauma to his

right jaw.

Based on the results of the investigation, Valerie Beard, the

Internal Affairs investigator, concluded that “McCormick struck

inmate Michael Tobias across the right side of his face with an

open hand at least once while he was handcuffed in the sally

port.” She concluded that McCormick had “displayed a blatant

disregard for the agency’s established guidelines for the use of

force” and may have violated “the assault statute of the Criminal

Code of the District of Columbia.”

Investigator Beard referred her report to her superior Patten,

who reviewed the report and Beard’s findings. Patten made

corrections in form, but submitted the report to Devon Brown,

the Director of the Department of Corrections, without

substantive change. Director Brown placed McCormick on

administrative leave on March 9, 2006, after Patten told him that

McCormick had “inappropriately, without just cause struck an

inmate under his care.”

According to Director Brown, he then wrote to the Deputy

Mayor of the District of Columbia, requesting approval to

terminate McCormick, as was required for the termination of at-

will employees of the District of Columbia Management

Supervisory Service, like McCormick. Though no copy of that

letter was ever produced, Brown proceeded with the termination,

and there is no contention that the Deputy Mayor ever

disapproved the termination.

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Brown testified that he terminated McCormick because

Internal Affairs had concluded that McCormick had assaulted a

handcuffed inmate. He testified that he was aware of the

evidence from the other corrections officers, both those who did

and did not report seeing the incident. He further testified that

he was aware that none of the officers had included the assault

in their initial reports of the events of January 13 and had issued

a directive to the staff that a “code of silence . . . would not be

accepted in the department.” At no time did Director Brown or

the Department of Corrections publish the Internal Affairs

report. The report was not placed in McCormick’s personnel

file. Brown did not provide McCormick’s termination letter to

anyone outside the Department. He did not disclose the basis of

McCormick’s termination to anyone other than the Deputy

Mayor, and that disclosure was necessary to obtain authorization

for the termination. Beyond that, at some point after the

investigation was complete, the Internal Affairs report was

forwarded to the United States Attorney’s Office for any

criminal investigation that office might determine to conduct.

B. The Litigation

On February 21, 2007, McCormick filed the present action

in the Superior Court of the District of Columbia against the

District of Columbia, Department of Corrections Director Devon

Brown, and Chief of Internal Affairs Wanda Patten. He alleged

a claim against the District of Columbia for wrongful discharge,

in violation of the District of Columbia Whistleblower

Protection Act (“WPA”), D.C. Code § 1–615.51 et seq. (2006).

He further alleged violation by all defendants of his

constitutional rights, specifically of his liberty interests under

the Fifth Amendment without due process. Thereafter, the

District of Columbia removed the action to the district court,

where it proceeded to the summary judgment motions and the

entry of summary judgment in favor of all defendants now

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before this court. McCormick v. District of Columbia, 899 F.

Supp. 2d 59 (D.D.C. 2012). We review the entry of summary

judgment de novo, drawing all inferences from the evidence in

favor of the nonmovant. Reeves v. Sanderson Plumbing Prods.,

530 U.S. 133, 150 (2000).

II. THE WHISTLEBLOWER PROTECTION ACT

The WPA, in pertinent part, provides that “[a] supervisor

shall not take . . . a prohibited personnel action or otherwise

retaliate against an employee because of the employee’s

protected disclosure . . . .” D.C. Code § 1–615.53 (2001). The

statute defines “protected disclosure” as:

any disclosure of information, not specifically prohibited by

statute, . . . by an employee to a supervisor or a public body

that the employee reasonably believes evidences:

(A) Gross mismanagement;

(B) Gross misuse or waste of public resources or funds;

(C) Abuse of authority in connection with the

administration of a public program or the execution of a

public contract;

(D) A violation of a federal, state, or local law, rule, or

regulation, or of a term of a contract between the District

government and a District government contractor which is

not of a merely technical or minimal nature; or

(E) A substantial and specific danger to the public health

and safety.

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D.C. Code § 1–615.52(a)(6). McCormick contends that his

termination was not in fact because of the events of January 13,

2006, but was instead in retaliation for protected disclosures that

he had made almost a year earlier. Specifically, he alleges that

in March of 2005, he discovered that Wanda Patten, now a

defendant-appellant in this action, had improperly allowed

unredacted statements by two correctional officers slated to

testify in the prosecution of a violent inmate to fall into the

hands of that inmate. The unredacted statements dangerously

contained the home addresses of the two witness officers.

McCormick reported this impropriety to the Deputy Director of

DOC and the Office of Internal Affairs. We agree with the

district court that the evidence of record cannot survive

summary judgment on this claim.

Retaliation claims under the District of Columbia’s

Whistleblower Protection Act are subject to analysis under “the

burden-shifting framework established by McDonnell-Douglas

Corp. v. Green, 411 U.S. 792 (1973).” Payne v. District of

Columbia, 722 F.3d 345, 353 (D.C. Cir. 2013). Applying that

analysis at the stage of summary judgment, we determine first

whether the plaintiff has made out “a prima facie case.” In order

to establish such a case of retaliation, the plaintiff must present

“evidence of retaliation sufficient for a reasonable jury to

conclude that his protected activity was a contributing factor in

the alleged prohibited personnel action.” Id. (internal quotations

and citations omitted). Under the McDonnell-Douglas analysis,

the presentation of a prima facie case shifts the burden of proof

to a defendant employer, but McCormick has not established a

prima facie case, and therefore the burden does not shift.

In order to survive a summary judgment motion under the

McDonnell-Douglas framework as applied to the District of

Columbia whistleblower statute, a plaintiff must “challenge the

motion for summary judgment with a proffer of admissible

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evidence that [his] ‘protected activity’ . . . was a ‘contributing

factor’” in his adverse employment actions. Johnson v. District

of Columbia, 935 A.2d 1113, 1118 (D.C. 2007); see also

O’Donnell v. Barry, 148 F.3d 1126, 1133 (D.C. Cir. 1998)

(“[T]he employee must show that [his] speech was a substantial

or motivating factor in promoting the retaliatory or punitive act

of which [he] complains.”). McCormick has offered no direct

evidence that the decision by the Director of the Department of

Corrections to terminate him was motivated by his earlier

disclosures of the mishandling of confidential identity

information.

Of course it is not surprising that there is no direct evidence,

and “it is indeed common that causation elements dependent

upon the intent of an actor would be proven by circumstantial

rather than direct evidence.” Payne, 722 F.3d at 354. The

difficulty for McCormick is he has not provided the necessary

circumstantial evidence to fill the gap. All he has really shown

on the subject of retaliation is that he made a disclosure in

March of 2005 and he suffered adverse employment actions in

January of 2006. As we observed in Payne, it is true that

“temporal proximity” between a protected disclosure and a

termination is circumstantial evidence of causation. But as we

further observed in Payne, “[o]nce the time between a protected

disclosure and a negative employment action has stretched to

two-thirds of a year there is no temporal proximity.” Id.

(internal quotations omitted). Indeed, in Johnson, the District of

Columbia Court of Appeals, whose decisions bind us on matters

of D.C. law, rejected a “four-month lapse of time as proof of a

causal connection between the protected disclosures and the

adverse actions.” 935 A.2d at 1120.1

1

Although McCormick stresses the fact that Beard—who recommended the

decision to terminate him—was a subordinate of Patten’s, whom he alleges

has a motive to retaliate, and thereby emphasizes that Beard might have had

10

Obviously the ten-month passage of time between the

disclosures and the actions exceeds the two-thirds of a year held

inadequate in Payne and the four months rejected in Johnson.

Like the courts in those cases, we cannot conclude that the

plaintiff has provided evidence of causation sufficient to survive

summary judgment or to shift the burden to the defense.

McCormick attempts to bridge the gap by reference to events

occurring in June of 2005. According to McCormick’s proffer,

Patten first tried to retaliate for his disclosure by recommending

his termination based on a discrepancy between his report and

that of another officer in an investigation of crack cocaine in an

inmate’s cell. Under McCormick’s theory, that incident,

coupled with the incident currently under litigation which

resulted in his termination, evidences an on-going retaliation

based on his initial disclosures against Patten.

The difficulties with this theory are numerous. In the first

place, we do not know that the June incident was retaliatory.

There is no temporal proximity to the present alleged events.

The gap between the June incident and the January one is longer

than the interval rejected as circumstantial evidence in Johnson

and equals the interval rejected by us in Payne. Further, there

is no evidence to connect the actions against McCormick in June

of 2005 with those in the present case. In addition to the lack of

circumstantial or other evidence of retaliatory causation,

McCormick also faces the inescapable fact that Patten, the only

official against whom he had made a disclosure and who might

therefore be suspected of retaliation, did not make the decision

to take the adverse employment action. According to the

evidence before the district court and before us, Valerie Beard

knowledge of his prior disclosures, these bits of evidence do not contribute

to the establishment of a prima facie case. Presumably in every case where

an employee alleges retaliation, the action claimed to be retaliatory will be in

the same employment organization as the blown whistle. Without some

evidence of retaliatory intent, the prima facie case is not made.

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was the initial recommender of termination, and Director Brown

made the decision to effect that employment action.

We note that the district court did not decide whether

McCormick had made out a prima facie case but assumed for

purposes of the motion that he had and proceeded to the next

steps of the McDonnell-Douglas analysis. We recall, however,

that we review the decision of the district court on summary

judgment de novo and may affirm on a different theory than that

relied upon by the district court. See, e.g., Kingman Park Civic

Ass’n v. Williams, 348 F.3d 1033, 1036 (D.C. Cir. 2003); see

also 3883 Connecticut LLC v. District of Columbia, 336 F.3d

1068, 1069 (D.C. Cir. 2003). However, we observe that the

district court’s reasoning concerning the further steps of the

McDonnell-Douglas analysis is sound. Even if McCormick had

made out a prima facie case of retaliatory motive, the question

would still remain as to whether that animus was in fact the

cause of his discharge, or whether for independent lawful

reasons the employer would have taken the same action without

respect to retaliatory motive. As the district court observed, the

only evidence on this point is that the Department “terminated

Plaintiff because Internal Affairs found that he struck a

restrained inmate.” McCormick, 899 F. Supp. 2d at 70. And as

the district court further observed, McCormick offered no

evidence in rebuttal.

As the district court acknowledged, and as we observed

above, the parties differ as to the veracity of the witnesses

against McCormick, “but whether Plaintiff struck a restrained

inmate is a wholly different factual question from whether the

Department of Corrections terminated Plaintiff because its

investigation found that he had.” Id. It is not our duty to sit as

a super board of employment, reviewing the decision of the

employer on the underlying facts. The investigation disclosed

a dischargable event. We do not have the authority, nor did the

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district court, to conduct a trial of the events investigated in the

Internal Affairs investigation. The relevant fact is that the

investigation revealed serious misconduct by McCormick. The

evidence further reveals that based on that investigation, the

Director terminated McCormick. The witnesses against

McCormick may have been wrong. They may have all been

right, or some right and some wrong. The fact remains, the

evidence is that the employer terminated McCormick not for the

events of March 2005, but those of January 2006. We affirm the

grant of summary judgment on the claims under the

Whistleblower Act.

III. THE CONSTITUTIONAL CLAIM

In addition to his claim under the WPA, McCormick asserts

a constitutional claim against the District, Brown, and Patten.

He argues that his “for cause” termination deprived him of a

constitutionally protected interest in the pursuit of a further

career in the field of corrections. According to McCormick,

when he applies in the future for corrections positions with the

federal government or with states or municipalities, he will be

subject to a background investigation, requiring him to disclose

that he was terminated for cause for assaulting a restrained

inmate. He further offers evidence of record that he has applied

for and been rejected from numerous positions in federal law

enforcement and as a security guard. He argues, therefore, that

the for-cause termination has precluded and will continue to

preclude him “from pursuing” a career in his “chosen” field of

corrections. Appellant’s Br. at 38 (citing O’Donnell, 148 F.3d

at 1141). McCormick argues, therefore, that this is a deprivation

of his liberty interests and that due process requires that he be

afforded a pre-termination hearing or other adequate process for

the protection of his right.

13

The district court agreed with McCormick that the first

threshold for a due process claim had been crossed. That is, it

agreed that McCormick had been deprived of a protected liberty

interest, but held that District of Columbia law afforded

adequate process for that deprivation. More specifically, the

district court held that the District of Columbia Comprehensive

Merit Personnel Act, D.C. Code § 1–601.01 et seq. (2006),

provided post-termination hearings that afforded the process

necessary to the protection of the employees’ constitutional

rights. On appeal, the District of Columbia concedes that the

Personnel Act does not provide post-termination hearings for at-

will employees in the Management Supervisory Service such as

McCormick. However, although the district court erred in its

reason for granting summary judgment in favor of the District,

as we noted above, we review the decision of the district court

on summary judgment de novo and may affirm on a different

theory than that relied upon by the district court.

To sustain a procedural due process claim, a plaintiff must

first demonstrate the existence of a protected liberty or property

interest. See Board of Regents v. Roth, 408 U.S. 564, 569–70

(1972). At first reading, the record does not support a

conclusion that the District of Columbia deprived appellant of

a legally protected interest. As we noted in Kassem v. Wash.

Hosp. Ctr., 513 F.3d 251(D.C. Cir. 2007), “‘It has long been

settled in the District of Columbia that an employer may

discharge an at-will employee at any time and for any reason, or

for no reason at all.’” Id. at 254 (quoting Adams v. George W.

Cochran & Co., 597 A.2d 28, 30 (D.C. 1991) (collecting

authorities)). Normally, one cannot be deprived unlawfully of

something to which one had no legally protected right before the

deprivation. The parties, however, agree that there are two

theories, drawn from Roth, that provide limited circumstances

under which an at-will employee may establish a due process

claim arising out of his termination.

14

It is true that in O’Donnell we recognized the possibility of

an action for deprivation of a liberty interest without due process

where an employee is terminated. But the availability of such

an action in the case of an at-will employee is at best very

narrow. The first of two theories to which Roth and O’Donnell

refer, supporting the availability of such an action, is a

“reputation-plus claim,” see O’Donnell, 148 F.3d at 1140. This

theory makes the termination actionable only where the

terminating employer has disseminated the reasons for the

termination and such dissemination is defamatory. See Orange

v. District of Columbia, 59 F.3d 1267, 1274 (D.C. Cir. 1995).

The second theory, which is not always distinct from the first,

provides a remedy where the terminating employer imposes

upon the discharged employee “‘a stigma or other disability that

foreclosed [the plaintiff’s] freedom to take advantage of other

employment opportunities.’” O’Donnell, 148 F.3d at 1140

(quoting Roth, 408 U.S. at 573). According to our dicta in

O’Donnell, the difference between the two theories of recovery

is that the “stigma” claim, unlike the reputation-plus claim,

“does not depend on official speech” but on a “stigma or

disability arising from official action.” Id.

It is not totally clear from McCormick’s pleadings in the

district court or his initial brief before us which of the two

theories he is relying upon, though in his reply brief in this court

he expressly disavows the reputation-plus theory in favor of the

stigma approach. In either event, appellant has not established

that the district court erred in its judgment, although we affirm

on different reasoning. Appellant’s factual theory is that the

appellees took the official act of firing him. He cannot obtain

other employment in his chosen field, therefore he has suffered

stigma. The stigma arises from his having to tell prospective

employers why he was fired. But the only official act

committed by the defendants is the termination. The termination

of an at-will employee is not sufficient to establish the

15

deprivation of protected liberty interests.

The Supreme Court in Bishop v. Wood, 426 U.S. 341

(1975), effectively disposes of McCormick’s claims. In Bishop,

the Court recognized that the Roth Court had stated “that the

nonretention of an untenured [employee] might make him

somewhat less attractive to other employers.” Id. at 348.

Nonetheless, the Roth Court had “concluded that it would stretch

the concept too far ‘to suggest that a person is deprived of

‘liberty’ when he simply is not rehired in one job but remains as

free as before to seek another.’” Bishop, 426 U.S. at 348

(quoting Roth, 408 U.S. at 575). The Bishop Court went on to

hold that the “same conclusion applies to the discharge of a

public employee whose position is terminable at the will of the

employer when there is no public disclosure of the reasons for

the discharge.” Id. Unfortunately for McCormick, that

language precisely describes his case.

Were we to hold that the termination of an at-will employee

without hearing is a deprivation of due process, we would

effectively eliminate from the law the well-recognized status of

at-will employee. As the Supreme Court summed up the

proposition in Bishop:

The federal court is not the appropriate forum in which to

review the multitude of personnel decisions that are made

daily by public agencies. We must accept the harsh fact

that numerous individual mistakes are inevitable in the day-

to-day administration of our affairs. The United States

Constitution cannot feasibly be construed to require federal

judicial review for every such error. . . . The Due Process

Clause of the Fourteenth Amendment is not a guarantee

against incorrect or ill-advised personnel decisions.

16

426 U.S. at 349–50. McCormick asks us to provide the forum

which the Supreme Court largely foreclosed in Bishop. Under

established law we cannot feasibly examine the conclusions of

the investigator or the Director of the Department of

Corrections. Based on the results of that investigation, which

the Director accepted, McCormick was guilty of serious

misconduct, and he was terminated. Any error in the decision

to terminate first appears to be one of the numerous and

inevitable mistakes recognized in Bishop.

McCormick, however, in reliance on the stigma theory,

asserts that his liberty interest in further employment in his

chosen profession supports a claim for deprivation of liberty

without due process. This, he asserts, is actionable even though

he was an at-will employee and there was no government

publication of derogatory information about him. In support of

his theory, he points to O’Donnell, supra, wherein this court, in

rejecting the stigma theory on the facts before it, discussed—not

communication by the government—but the plaintiff’s

remaining reasonable job opportunities in the field. Id., 148

F.3d at 1140–41. Similarly, in Taylor v. Resolution Trust Corp.,

where the government did make public statements, we focused

on the plaintiff’s future employment prospects without reliance

on the government’s publications. 56 F.3d 1497, 1506–07 (D.C.

Cir. 1995). Bishop v. Wood, supra, does not address this

understanding.

Therefore, Bishop does not dispose of this theory. The

plaintiff in Bishop advanced a pair of reasons why his

termination violated his liberty interest: (1) because the “reasons

given for his discharge are so serious as to constitute a stigma

that may severely damage his reputation in the community” and

(2) that the reasons given were false. Bishop, 426 U.S. at 347.

The Court rejected the first claim on the grounds that the reasons

for termination had not been made public and therefore could

17

not affect Bishop’s “‘good name, reputation, honor, or

integrity.’” Id. at 348 (quoting Wisconsin v. Constantineau, 400

U.S. 433, 437 (1971)). Although the Court referred to the

“stigma” created by the dismissal, it used that term to refer to

the effect on his reputation, not on his future employment

prospects. Id. at 347. And Bishop repeated the assumption in

Roth that the individual was “as free as before to seek another”

job. Id. at 348. If the plaintiff’s allegations did not contradict

that assumption, plainly he had not made out a case that he was

broadly precluded from his chosen profession.

McCormick, in contrast, cites deposition testimony to the

effect that he can never again be employed in the corrections

field and that therefore, his termination implicates his liberty

interest. Appellant’s Reply Br. at 12 (citing J.A. 428–29;

500–03 (testimony of former Acting Warden Corbett and

Director Brown)). Although that testimony is not as compelling

as McCormick suggests, it is arguably sufficient to establish a

“genuine dispute as to [a] material fact,” Fed. R. Civ. P.

56(a)—namely whether the circumstances of the termination

had the broad effect of barring him from further employment in

his chosen profession.

Nonetheless, we affirm the judgment of the district court

because any deprivation of liberty by stigmatizing was not

without due process. In this case due process requires only that

McCormick have “an opportunity to clear his name.” Codd v.

Velger, 429 U.S. 624, 627 (1977). The basic requirement in

such a hearing is minimal: it must provide notice of the charges

and an opportunity to refute them effectively. Id.; Doe v. DOJ,

753 F.2d 1092, 1112 (D.C. Cir. 1985). The Second Circuit, for

example, has found adequate an administrative process that

provides “the means necessary to clear [the plaintiff’s] name,

including the opportunity to present evidence, call witnesses,

cross-examine witnesses, and make an oral presentation through

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union-selected counsel.” Segal v. City of N.Y., 459 F.3d 207,

216 (2d Cir. 2006). Other courts have described the procedural

requirements as having “substantial flexibility,” but certainly

being met where “the claimant ha[d] notice of the charges which

have been raised against him, and an opportunity to refute, by

cross-examination or independent evidence, the allegations

which gave rise to the reputational injury.” Campbell v. Pierce

Cnty., Ga., 741 F.2d 1342, 1345 (11th Cir. 1984). And the

Eighth Circuit found adequate a hearing where a dismissed

school supervisor was given unlimited time to speak before the

school board and have his attorney speak on his behalf.

Hammer v. City of Osage Beach, 318 F.3d 832, 836, 840-41 (8th

Cir. 2003).

Although the District acknowledges that its argument before

the district court erred as to the forum in which McCormick

could have sought relief, Appellee’s Br. at 39, it seems correct

in arguing before us that McCormick could have pursued an

action for review, including one for severance, in Superior Court

(or in the district court once the case was removed). D.C. Code

§§ 1-606.03; 1-609.54(b). Such an action would meet the

requirements of a name-clearing hearing. Indeed, McCormick

does not deny that this procedure would have provided an

adequate hearing, instead protesting that he could not have

brought a suit for severance because he was in the Management

Supervisory Service, Appellant’s Reply Br. at 16. That assertion

seems flatly contradicted by D.C. Code § 1-609.54, which

provides a severance schedule for members of the Management

Supervisory Service.

In short, even assuming that McCormick has provided

sufficient evidence of a deprivation of his liberty interest, such

deprivation was not without due process, and we agree with the

district court that the appellees were entitled to summary

judgment.

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CONCLUSION

We have considered the other issues discussed by the

parties and conclude that none of them warrant separate

discussion. For the reasons set forth above, the judgment of the

district court is

Affirmed.