Zepp v. Rehrmann

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

E. DALE ZEPP,

Plaintiff-Appellant,

v.

EILEEN M. REHRMANN, Individually

and in her official capacity of

County Executive for Harford

County; ERNEST CROFOOT,

No. 95-1379

individually and in his capacity as

County Attorney for Harford

County; HARFORD COUNTY,

MARYLAND, a body politic and

political subdivision of the State of

Maryland,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, District Judge.

(CA-94-1558-WN)

Argued: November 2, 1995

Decided: March 26, 1996

Before NIEMEYER and HAMILTON, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Judge Hamilton and Senior Judge Phillips joined.

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COUNSEL

ARGUED: Michael Dwayne Smigiel, Sr., Elkton, Maryland, for

Appellant. Jefferson Lee Blomquist, HARFORD COUNTY

DEPARTMENT OF LAW, Bel Air, Maryland, for Appellees.

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OPINION

NIEMEYER, Circuit Judge:

When an inmate at the Harford County (Maryland) Detention Cen-

ter was found dead in his cell from strangulation, his family accused

Harford County deputy sheriffs of sodomizing and murdering him.

Faced with the threat of a lawsuit by the inmate's family against Har-

ford County, its sheriff, and their employees, the County demanded

the resignation of Major E. Dale Zepp, the deputy sheriff in charge

of the Detention Center, and threatened not to represent him in any

civil suit relating to the inmate's death unless Zepp resigned or

retired. After the Sheriff agreed to Zepp's request for a two-week

reassignment, use of annual leave, and a ban on negative publicity,

Zepp stated that he would retire following his annual leave. Harford

County thereafter reached a settlement with the inmate's family, and,

in publicly announcing the settlement, the County Executive stated

that Zepp was being forced to retire "due to management problems."

One-and-one-half months later, Zepp formally tendered his resigna-

tion and, on June 30, 1993, retired.

Almost a year after his retirement, Zepp sued Harford County, the

County Executive, and the County Attorney, alleging, inter alia, vio-

lations of his Fourteenth Amendment rights under 42 U.S.C. § 1983.

Specifically, Zepp claimed that the defendants had coerced him to

retire and had defamed him, thereby denying him his property interest

in continued employment as a deputy sheriff and his liberty interest

in his reputation, both without due process of law. The defendants

filed a motion for summary judgment, which the district court

granted.

Because we conclude that (1) Zepp's claims against Harford

County and its employees in their official capacities do not allege any

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violation of county law or policy to establish municipal liability under

42 U.S.C. § 1983 and (2) Zepp's § 1983 claims against the Harford

County Executive and the County Attorney individually are barred by

qualified immunity, we affirm.

I

On March 1, 1992, William Ford, an inmate at the Harford County

Detention Center, was found dead on his cot in the booking room

holding cell. He was lying face down with a pillowcase tied tightly

around his neck. The County ruled the death a suicide, but Ford's

family suspected that his death was the result of"foul play" by deputy

sheriffs at the Detention Center and retained an attorney to pursue a

civil lawsuit against the County, the County Sheriff, and his deputies.

The Ford family's attorney prepared a proposed complaint and pres-

ented it to the County.

After investigating the charges, Harford County Attorney Ernest

Crofoot concluded that there was civil liability exposure and opened

settlement negotiations with the Ford family. During those negotia-

tions, the Ford family indicated that it held Deputy Zepp personally

responsible for covering up Ford's murder and that it wished to see

changes made at the Detention Center. The family also represented

that it would not relinquish its right to sue Zepp personally if he

remained in charge of the Detention Center.

Responding to the Ford family's demand, Harford County Execu-

tive Eileen Rehrmann and County Attorney Crofoot determined that

Zepp would have to resign or retire, and Crofoot so advised Harford

County Sheriff Robert E. Comes on April 13, 1993. Crofoot told

Comes that if Zepp did not retire, the County would not represent

either Zepp or Comes in any suit relating to Ford's death, even though

the Deputy County Attorney had told Zepp a week earlier that the

County would defend him under an agreement with the Maryland

Attorney General's Office. Sheriff Comes related that information to

Zepp and speculated that a legal defense could cost from $40,000 to

$60,000.

Later on April 13, 1993, at a meeting with Comes and Zepp, Cro-

foot reiterated the County's position, and, at the end of that meeting,

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Zepp stated that he would retire if necessary to protect his family and

assets. He indicated that if he were permitted to be reassigned for a

period of two weeks, he would thereafter use accumulated annual

leave and retire, effective June 30, 1993. Zepp also demanded no

adverse publicity. Immediately after the April 13 meeting with Cro-

foot and Comes, Zepp retained Stuart Robinson, an attorney, to repre-

sent him in the pending criminal investigation arising out of the Ford

case and "to look into the County's settlement with the Ford estate."

Three days after Zepp indicated he would retire, County Attorney

Crofoot reached a final settlement agreement with the Ford estate.

The County paid the estate $400,000, and the estate executed a "Re-

lease and Settlement of Claim," relinquishing all claims against Har-

ford County, its officers and employees, as well as the Sheriff and his

deputies, including Zepp, but specifically reserving claims against

three individuals not disclosed in the release. After the agreement had

been executed, County Executive Rehrmann announced the settle-

ment in a televised newscast, stating that "due to management prob-

lems at the Harford County Detention Center, highlighted by the Ford

case, Major E. Dale Zepp [is] being forced to retire."

Following the settlement with the Ford estate, Zepp was reassigned

for two weeks, as agreed. On May 1, 1993, he began using his accu-

mulated annual leave, and on June 1, 1993, he tendered his formal

notice of retirement, effective June 30, 1993.

Before Zepp's retirement, his attorney, Robinson, wrote the County

Attorney to request a copy of the investigation into Ford's death

because he understood that there was a "difference of opinion" about

the facts of the case that "may or may not play a significant role in

this matter, particularly in talking about settlement/suit/continuing

investigation options." Robinson also wrote to a state government

attorney investigating the matter:

Since my client is a party on whose behalf a settlement has

been reached, it is only appropriate that he be given a copy

of that document. Time is of the essence in that my client

is scheduled for retirement on June 30, 1993, and would like

this document prior to retirement.

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On June 30, 1993, Zepp retired after serving as a deputy in the

sheriff's office for over 30 years.

In June 1994, Zepp filed this action against Harford County,

County Executive Rehrmann, and County Attorney Crofoot. Zepp's

complaint contained federal constitutional and state law claims based

on his allegations that (1) he had been coerced into retirement and (2)

the County Executive had defamed him by stating that he had been

forced to retire "due to management problems at the Harford County

Detention Center." The defendants filed a motion for summary judg-

ment, contending that Zepp had failed as a matter of law to establish

infringements of his constitutional rights. The individual defendants

also asserted qualified immunity.

The district court granted the defendants' motion for summary

judgment, concluding that Zepp had retired voluntarily and had no

constitutionally protected interest in his reputation. The court also

declined to exercise jurisdiction over Zepp's state law claims, dis-

missing them without prejudice. This appeal, which challenges only

the court's ruling on the § 1983 claims, followed.

II

Zepp does not articulate his constitutional tort claims against Har-

ford County or the individual defendants in their official capacities

separately from his allegations of individual liability directed at the

County Executive and the County Attorney. Thus, while Zepp argues

that the County Executive and the County Attorney were instrumental

in coercing him to retire, he does not identify a violation of any Har-

ford County policy, ordinance, regulation, or decision. Because

municipal liability cannot rest on the doctrine of respondeat superior,

Zepp's § 1983 claims against Harford County and the defendants in

their official capacities must fail. See Monell v. Department of Social

Services, 436 U.S. 658, 691 (1978); Greensboro Professional Fire

Fighters Ass'n, Local 3157 v. City of Greensboro, 64 F.3d 962, 964

(4th Cir. 1995). Zepp's claim that the County Executive and the

County Attorney instigated his coercive retirement, therefore, can

only be made against them in their individual capacities, if at all.*

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*The County also contends that as a matter of law, neither Harford

County nor any of its officials could have constructively discharged Zepp

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III

With respect to Zepp's constitutional tort claims against County

Executive Rehrmann and County Attorney Crofoot individually, we

address, as a threshold matter, their qualified immunity defense. See

Torcasio v. Murray, 57 F.3d 1340, 1352 (4th Cir. 1995), cert. denied,

116 S. Ct. 772 (1996). In doing so, we resolve "the essentially legal

question whether the conduct of which the plaintiff complains vio-

lated clearly established law." Siegert v. Gilley, 500 U.S. 226, 233

(1991) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). To

determine whether a federal right was clearly established at the time

of the defendants' alleged conduct, we focus "not upon the right at its

most general or abstract level, but at the level of its application to the

specific conduct being challenged." Pritchett v. Alford, 973 F.2d 307,

312 (4th Cir. 1992).

A

In this case, the principal constitutional issue that Zepp presents is

whether, in seeking a settlement with the Ford family and pressing

Zepp to resign his position as deputy sheriff, the County Executive

and the County Attorney deprived Zepp of his constitutionally pro-

tected property interest in continued employment. While Zepp con-

tends that the County officials' pressure amounted to an illegal

constructive discharge, he alleges facts that are no more indicative of

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because they were not his employer. The Sheriff of Harford County is a

state officer, see Md. Const. art. IV, § 44; Md. State Gov't Code Ann.

§ 12-101(6); Rucker v. Harford County, 558 A.2d 399, 402 (Md. 1989),

and deputy sheriffs are employed by the sheriff, not by the county, see

id.; Md. Cts. & Jud. Proc. Code Ann. § 2-309(n), (z); Boyer v. State, 594

A.2d 121, 128 (Md. 1991). Furthermore, the dismissal of a deputy is

governed by state law, not Harford County law. See Md. Ann. Code art.

27, §§ 727-734D (Law Enforcement Officers' Bill of Rights). But

because the employment status of a deputy sheriff under Maryland law

does not compel the conclusion that Zepp was a state employee for pur-

poses of his constructive discharge claims under§ 1983, see Dotson v.

Chester, 937 F.2d 920, 926 (4th Cir. 1991), we choose not to rest our

decision in this case on any particular characterization of Zepp's employ-

ment status.

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a constructive discharge than those involved in Stone v. University of

Maryland Medical System. Corp., 855 F.2d 167 (4th Cir. 1988), a

decision that articulated the law of this circuit when Zepp resigned.

See also Shealey v. Winston, 929 F.2d 1009 (4th Cir. 1991) (applying

Stone analysis and concluding that plaintiff had failed to present fac-

tual issue as to voluntariness of his retirement). Thus, Stone forecloses

Zepp's assertion that the County Executive and the County Attorney

violated a well established right when they requested his resignation.

In Stone, a state-employed surgeon agreed to resign several hours

after his superiors informed him that if he did not, the Medical Exam-

ination Committee, which was scheduled to meet later that afternoon,

would suspend his clinical privileges and commence proceedings for

his removal. Id. at 170-71. Before tendering his resignation, Stone

demanded, and received, assurances that his resignation would go on

record as having been voluntary, that the effective date of his resigna-

tion would be delayed, and that he would continue to receive his sal-

ary until his resignation became effective. Id. at 171. Five months

later, Stone brought a § 1983 suit, alleging that he had been construc-

tively discharged in violation of his Fourteenth Amendment due pro-

cess rights. Id.

We recognized in Stone that a resignation may amount to a con-

structive discharge in two general circumstances:"(1) where obtained

by the employer's misrepresentation or deception, and (2) where

forced by the employer's duress or coercion." Id. at 174 (citations

omitted). "Under the `misrepresentation' theory," we explained, "a

resignation may be found involuntary if induced by an employee's

reasonable reliance upon an employer's misrepresentation of a mate-

rial fact concerning the resignation." Id. And a resignation may be

deemed involuntary under the "duress/coercion" theory "if on the

totality of circumstances it appears that the employer's conduct in

requesting resignation effectively deprived the employee of free

choice in the matter." Id. The facts surrounding Stone's retirement,

however, failed to persuade us that the surgeon had been construc-

tively discharged under either the misrepresentation theory or the

duress/coercion theory.

Stone argued that his resignation had been induced by his superi-

ors' misrepresentation that they would discharge him from the medi-

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cal staff if he did not resign immediately. Id. at 175. We recognized

that even if his superiors' threat constituted a material misrepresenta-

tion of fact, Stone's sophistication in administrative matters and the

ease with which he could have ascertained his rights made it "simply

incredible that a person situated as was Stone could reasonably have

accepted the asserted misrepresentation and resigned on that basis."

Id. at 176.

We also rejected Stone's contention that his resignation had been

coerced. Stone, a well-educated and experienced hospital administra-

tor, had been fully informed of the charges against him. Id. at 177. He

also "knew what his rights were, and if he did not, he was given

ample time to find out," to contact an attorney, and to seek the advice

of anyone he wished. Id. Moreover, Stone"drove a hard bargain" in

dictating the terms of his resignation and did not make any effort to

rescind his resignation or request a hearing on the charges against him

during the five months between his decision to resign and the filing

of his lawsuit. Id. at 177-78. "[T]he mere fact that Stone was forced

to choose between the inherently unpleasant alternatives of resigna-

tion and possible termination for cause [did] not itself mean that his

resignation was submitted under duress, absent evidence that his

superiors lacked good cause for the threatened termination." Id. at

177.

In this case, Zepp argues that he relied on the individual defen-

dants' "misrepresentation" that Harford County would not represent

him in any civil case relating to Ford's death if he refused to resign.

We cannot discern how the County's stated refusal to represent Zepp

could be deemed a misrepresentation of material fact. The statement

was one of future intent, not of existing fact. Moreover, the County

had no legal obligation to represent Zepp, and Zepp has not presented

any evidence to suggest that the County Attorney spoke for the Mary-

land Attorney General, who was responsible for representing Zepp.

See Md. State Gov't Code Ann. §§ 12-304(a)(1), 12-101(6).

Moreover, Zepp could not have reasonably relied on the defen-

dants' purported misrepresentations. Like Stone, Zepp was not a

naive employee; he was a high-ranking deputy sheriff with over 30

years experience. And Zepp could easily have ascertained his legal

rights before formally tendering his resignation or before it became

8

effective; he had more than two months to do so. Indeed, on the very

day that he stated he would retire, Zepp retained Robinson to repre-

sent him in the pending criminal investigation and to look into the

County's settlement with the Ford estate. Yet, over the following

months, Zepp never wavered from his decision to resign or sought to

invoke the hearing process that was available for involuntary termina-

tions.

We also find untenable Zepp's duress/coercion theory of his con-

structive discharge. As already noted, Zepp was a high-ranking, expe-

rienced deputy sheriff. Also like Stone, Zepp demanded and received

several accommodations before agreeing to retire. He was permitted

to work on a reassigned basis for two weeks and to use his accumu-

lated annual leave, thereby postponing the effective date of his retire-

ment for two-and-one-half months. Finally, Zepp, like Stone, never

indicated any desire to rescind his resignation before it became effec-

tive. On the contrary, one-and-one-half months after he stated he

would resign, he formally submitted his resignation in writing. During

the time between the April 13 meeting and his June 30 retirement,

Zepp had the opportunity to consult with his legal counsel and to

review the settlement that the County had negotiated with the Ford

estate. Instead of challenging Zepp's decision to resign, Zepp's coun-

sel appears to have endorsed it by asking for a copy of the settlement

agreement before Zepp's retirement to assure himself that it protected

Zepp.

Zepp was given a choice, albeit an unpleasant one. He could refuse

to resign, demand that he be given a hearing if he were to be fired,

and insist upon legal representation in any future cases arising out of

Ford's death, despite the County Attorney's position that the County

would not represent him. Or Zepp could resign and receive a release

from liability to the Ford estate. Zepp elected to resign, receiving sig-

nificant concessions from the County concerning the conditions of his

resignation and a complete release from civil liability without any

financial contribution on his part.

The conduct that Zepp attributes to the County Executive and the

County Attorney in pressing for his retirement is not even as aggres-

sive as that conduct found to fall short of violating a federal right in

9

Stone. And Zepp has advanced no case that would, at the time of his

retirement, give him a well-established federal right to relief.

In ruling on the defendants' qualified immunity defense, we need

only decide whether the rights that Zepp asserts were "clearly estab-

lished in a particularized and relevant sense" so that the unlawfulness

of the defendants' conduct would have been "apparent" in light of

existing law. Pinder v. Johnson, 54 F.3d 1169, 1173 (4th Cir.) (en

banc), cert. denied, 116 S. Ct. 530 (1995). In this case, Harford

County was facing a serious charge that its chief legal officer consid-

ered sufficiently viable to settle for $400,000. The allegations of mis-

management at the Harford County Detention Center were plausible

in light of what was known about Ford's death, and Zepp was the

deputy sheriff in charge of the Detention Center. If mismanagement

was a contributing cause of Ford's death, the County Executive and

County Attorney had a reasonable interest in settling the Ford fami-

ly's claim with an agreement to seek Zepp's resignation or retirement,

even if only the Sheriff could fire Zepp. Given the totality of circum-

stances surrounding Zepp's resignation and our decision in Stone, we

conclude that it was not "apparent" that the defendants' conduct vio-

lated a clearly established federal right and, therefore, that qualified

immunity shields the Harford County Executive and County Attorney

from Zepp's § 1983 claims for constructive discharge in violation of

his Fourteenth Amendment due process rights.

B

Zepp also contends that he was deprived of a constitutionally pro-

tected liberty interest in his reputation when the County Executive

represented on television that Zepp was being forced to retire because

of management problems at the Harford County Detention Center.

Again, however, Zepp's claim is not founded on any clearly estab-

lished principle of federal law. Both the Supreme Court and this court

have consistently held that public employees' liberty interests are not

implicated by harm to reputation alone. See, e.g., Paul v. Davis, 424

U.S. 693, 706 (1976); Wagner v. Wheeler, 13 F.3d 86, 92-93 (4th Cir.

1993); Stone, 855 F.2d at 172 n.5. "Defamation, by itself, is a tort

actionable under the laws of most States, but not a constitutional

deprivation." Siegert, 500 U.S. at 233. To implicate a constitutionally

protected liberty interest, defamatory statements must at least "imply

10

the existence of serious character defects such as dishonesty or immo-

rality," see Robertson v. Rogers, 679 F.2d 1090, 1092 (4th Cir. 1982),

"that might seriously damage [the plaintiff's] standing and associa-

tions in his community" or "foreclose[] his freedom to take advantage

of other employment opportunities." Board of Regents v. Roth, 408

U.S. 564, 573 (1972) (dictum). In Robertson, we held that statements

that the plaintiff had been fired for "incompetence and outside activi-

ties" did not impose on the plaintiff a stigma or disability sufficient

to implicate a constitutionally protected liberty interest. 679 F.2d at

1092.

In this case, the County Executive, in announcing the settlement

agreement in a televised newscast, stated that "due to management

problems at the Harford County Detention Center," Zepp was being

"forced to retire." The most that Zepp can derive from this statement

is that the County Executive accused him of incompetence or unsatis-

factory job performance. Such accusations, however, did not violate

any clearly established federal right.

Accordingly, we affirm the district court's summary judgment in

favor of the defendants on Zepp's § 1983 claims.

AFFIRMED

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