Ridpath v. Board of Governors Marshall University

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

B. DAVID RIDPATH, 

Plaintiff-Appellee,

v.

BOARD OF GOVERNORS MARSHALL

UNIVERSITY; DAN ANGEL; F. LAYTON

COTTRILL; K. EDWARD GROSE,  No. 04-1314

Defendants-Appellants,

and

BOB PRUETT; RICHARD HILLIARD,

Defendants.



B. DAVID RIDPATH, 

Plaintiff-Appellee,

v.

BOB PRUETT,

Defendant-Appellant,

and  No. 04-1328

BOARD OF GOVERNORS MARSHALL

UNIVERSITY; DAN ANGEL; F. LAYTON

COTTRILL; K. EDWARD GROSE;

RICHARD HILLIARD,

Defendants.



Appeals from the United States District Court

for the Southern District of West Virginia, at Huntington.

Robert J. Staker, Senior District Judge.

(CA-03-2037)

2 RIDPATH v. BOARD OF GOVERNORS

Argued: February 3, 2005

Decided: May 11, 2006

Before WIDENER and KING, Circuit Judges, and

Henry F. FLOYD, United States District Judge for the

District of South Carolina, sitting by designation.

Dismissed in part and affirmed in part by published opinion. Judge

King wrote the opinion, in which Judge Floyd joined. Judge Widener

wrote a separate opinion concurring in part and dissenting in part.

COUNSEL

ARGUED: Charles R. Bailey, BAILEY & WYANT, P.L.L.C.,

Charleston, West Virginia, for Appellants. Jason Eskwith Huber,

FORMAN & HUBER, L.C., Charleston, West Virginia, for Appellee.

ON BRIEF: Cheryl L. Connelly, Edward M. Kowal, Jr., CAMP-

BELL, WOOD, BAGLEY, EMERSON, MCNEER & HERNDON,

Huntington, West Virginia, for Appellant Bob Pruett.

OPINION

KING, Circuit Judge:

David Ridpath initiated this lawsuit in the Southern District of

West Virginia in August 2003 against the Board of Governors of

Marshall University; three of the University’s administrators, Dan

Angel, Layton Cottrill, and Edward Grose (collectively, the "Admin-

istrators"); then-Head Football Coach Bob Pruett; and Richard Hil-

liard, who had been retained by the University as its Special Legal

Counsel.1 Ridpath, a Marshall University employee and former athlet-

1

When this lawsuit was filed, Angel was the University’s President,

Cottrill its Vice President for Executive Affairs and General Counsel,

and Grose its Senior Vice President for Operations. Two notices of

appeal have been filed: one by the Board and the Administrators; and a

second by Coach Pruett. Hilliard is not a party to these appeals.

RIDPATH v. BOARD OF GOVERNORS 3

ics official, alleged multiple state and federal causes of action against

the Defendants in their individual and official capacities, centered on

their conduct with respect to an investigation of the University’s vio-

lations of National Collegiate Athletic Association ("NCAA") rules.

These causes of action included claims under 42 U.S.C. § 1983 (col-

lectively, the "§ 1983 claims") that Ridpath’s Fourteenth Amendment

right to due process was violated by the Board, the Administrators,

and Hilliard, and that his First Amendment right to free speech was

infringed in one way by the Board and the Administrators, and in a

second way by these Defendants and Coach Pruett. Asserting various

grounds, the Board, the Administrators, and Coach Pruett promptly

sought dismissal under Rule 12(b)(6) of the Federal Rules of Civil

Procedure. The district court denied these motions in part, rejecting,

inter alia, the Board’s and the Administrators’ assertions of qualified

immunity on the three § 1983 claims. See Ridpath v. Bd. of Gover-

nors, No. CA-03-2037 (S.D. W. Va. Feb. 17, 2004) (the "Opinion").

By these appeals, the Board, the Administrators, and Coach Pruett

seek review of the district court’s denial of qualified immunity, rely-

ing on the collateral order doctrine for appellate jurisdiction. As

explained below, we dismiss Coach Pruett’s appeal for lack of stand-

ing, and we conclude that the appeal of the Board and the Administra-

tors is properly before us. On the merits of qualified immunity, we

affirm the decision of the district court in rejecting this defense at the

Rule 12(b)(6) stage of these proceedings.2

I.

A.

The facts relevant to these appeals are largely drawn from the oper-

ative complaint in these proceedings, i.e., Ridpath’s "Amended Com-

2

In ruling today, we acknowledge that the Appellants are not precluded

from reasserting claims of qualified immunity at the summary judgment

stage of the underlying proceedings, or from appealing, under the collat-

eral order doctrine, any adverse district court rulings on such claims. See

Behrens v. Pelletier, 516 U.S. 299, 306-07 (1996) (recognizing that

defendant may raise qualified immunity at successive stages of litigation,

and appeal denial of such defense more than once).

4 RIDPATH v. BOARD OF GOVERNORS

plaint" of December 19, 2003, superseding his "Initial Complaint" of

August 4, 2003.3 According to the Amended Complaint, Ridpath’s

chosen career is in intercollegiate athletics administration, particularly

in the area of overseeing compliance with NCAA rules. See Amended

Complaint at ¶¶ 14-15, 52. Ridpath was hired by Marshall University

in November 1997 as an Assistant Athletic Director in charge of the

Compliance Office, or "Compliance Director." Id. at ¶ 16. At some

point, Ridpath was also assigned teaching responsibilities as an

Adjunct Professor in the Exercise and Sports Science Department. Id.

at ¶ 46.

On approximately July 2, 1999, it was reported to Ridpath that sev-

eral Marshall football players were involved in academic fraud, hav-

ing received an advance copy of a physical education test. See

Amended Complaint at ¶ 19. Ridpath informed the NCAA of this

allegation, prompting an investigation conducted by the NCAA and

the University. Id. at ¶ 20. During this investigation, the University

discovered and informed the NCAA of further infractions involving

certain "props," i.e., students seeking academic eligibility to join

sports teams. Id. at ¶¶ 20-21. Members of the coaching staff had

improperly alluded to employment opportunities in recruiting these

props, and assisted them in securing jobs — at above-market wages

3

We are obliged, in our review of the district court’s qualified immu-

nity ruling, to accept as true the facts alleged in the Amended Complaint

and to view them in the light most favorable to Ridpath. See Jenkins v.

Medford, 119 F.3d 1156, 1159 (4th Cir. 1997) (en banc). In addition to

the Amended Complaint, several exhibits are before us. By Order of

October 22, 2004, we permitted the Appellants to attach these exhibits

to their reply brief. We further allowed Ridpath to object to the use of

any fact shown in the exhibits that was not otherwise alleged in the

Amended Complaint. In the final analysis, the exhibits have been of lim-

ited utility to our review, because the Appellants rely on them largely in

an effort to contradict and disprove the Amended Complaint’s allega-

tions, which we must, of course, accept as true. In this regard, we also

deny as moot two pending motions filed by Ridpath with respect to these

exhibits and other materials submitted by the Appellants — the "Appel-

lee’s Motion to File Sur Reply to Appellants’ Reply," filed on January

28, 2005, and the "Appellee’s Motion to Strike Appellants’ Notice of

Decision Regarding Dr. Ridpath’s Level IV Grievance," filed on Febru-

ary 11, 2005.

RIDPATH v. BOARD OF GOVERNORS 5

— with a local business known as McCorkle Machine Shop. Id. at

¶¶ 21-22.

Prior to the investigation, Ridpath had no knowledge of the props’

employment at the Machine Shop, as the relevant information was not

(but should have been) reported to the University’s Compliance

Office. See Amended Complaint at ¶¶ 22, 24. During the investiga-

tion, members of the coaching staff attempted to cover up their

wrongdoing, and Coach Pruett, in testimony, suggested that Ridpath

and the Compliance Office were to blame for any improprieties. Id.

at ¶¶ 23, 25-26. Meanwhile, Ridpath was not allowed to personally

interview witnesses or investigate facts relating to the props’ employ-

ment at the Machine Shop. Id. at ¶ 27. Indeed, he was specifically

directed not to interview the Machine Shop’s owner, Marshall Reyn-

olds (who had a history of involvement in NCAA infractions at the

University), a directive that came from Cottrill, Hilliard, and Coach

Pruett. Id. They and Angel encouraged Ridpath, however, to defend

the University vigorously throughout the investigation and at a hear-

ing conducted on September 22, 2001, by the NCAA’s Committee on

Infractions. Id. at ¶¶ 30-32. Cottrill and Hilliard also assured Ridpath

on several occasions that he did not need personal legal representation

during the NCAA proceedings. Id. at ¶ 51(a). Ridpath’s defense of the

University was not well received by the NCAA committee. Id. at

¶ 38. Thereafter, although Ridpath had not been involved in the

NCAA rules violations, he became a "convenient scapegoat" for the

University. Id. at ¶¶ 38-39.

On approximately October 1, 2001, Ridpath agreed to be reas-

signed from being the University’s Compliance Director to become

its Director of Judicial Programs, despite lacking the necessary educa-

tion or training for this position. See Amended Complaint at ¶¶ 33-34.4

4

Ridpath’s chosen profession is intercollegiate athletics administration,

but the Director of Judicial Programs is a position outside the Universi-

ty’s Department of Athletics. See Amended Complaint at ¶¶ 14-15, 35.

According to information available through the University’s website, the

Director of Judicial Programs oversees enforcement of the University’s

Code of Student Rights and Responsibilities, which outlines standards of

expected student conduct and establishes disciplinary procedures for vio-

lations of these standards. See http://www.marshall.edu/judicial%2D

affairs.

6 RIDPATH v. BOARD OF GOVERNORS

Ridpath consented to this reassignment "for numerous reasons both

personal and professional." Id. at ¶ 33. Ridpath was given a raise to

accept the new position, and, at the time he filed the Amended Com-

plaint, he was being paid some $15,000 more annually than his pre-

decessor as Director of Judicial Programs. Id. at ¶ 34. As an

additional inducement for the transfer, Cottrill and Grose (as agents

of the University) agreed to inform the NCAA and the public that

Ridpath’s reassignment was not the result of any wrongdoing on his

part as Compliance Director. Id. at ¶ 35. In contravention of this

agreement, however, Hilliard subsequently informed the NCAA that

Ridpath’s reassignment was a "corrective action" taken by the Univer-

sity to remedy its NCAA rules violations. Id. at ¶ 36.

Ridpath was excluded from the decisionmaking process with

respect to the designation of his transfer as a "corrective action." See

Amended Complaint at ¶ 51(b). Moreover, during a meeting held on

approximately November 1, 2001, concerning the University’s viola-

tion of its agreement with Ridpath, Cottrill warned Ridpath: "You

[Ridpath] have no say in the matter. You need to think about your

family young man." Id. at ¶ 57(a) (alteration in original). At this same

meeting, Grose threatened Ridpath: "I am telling you. You do any-

thing to resurrect this [NCAA Infractions issues] and I will bury you

personally and professionally." Id. (alteration in original).

On December 21, 2001, the NCAA Committee on Infractions pub-

lished its report (the "Infractions Report"). See Amended Complaint

at ¶ 57(b). Its findings included two major NCAA rules violations —

academic fraud and impermissible employment of props at the

Machine Shop — and it labeled Ridpath’s reassignment as a "correc-

tive action" taken in response to these infractions. Id. at ¶¶ 37, 41,

51(c). An advance copy of the Infractions Report had been provided

to the University and, in the days leading up to its public release, a

group of school officials met to review and discuss it. Id. at ¶ 57(b).

During this meeting, some participants raised concerns about "cheap

shots" taken against Ridpath in the Infractions Report. Id. Addition-

ally, the group discussed the fact that Ridpath would wish to clear his

name. Id. In this regard, Angel, the University’s President, asserted

that he "would cut the dead limb from the tree" if Ridpath commented

publicly. Id. Angel further stated that he had previously dealt with

similar situations, and that he would have "no problem firing [Rid-

RIDPATH v. BOARD OF GOVERNORS 7

path] on the spot" if he spoke publicly about the NCAA investigation.

Id. Because of the threats articulated by Angel, and those previously

made by Cottrill and Grose, Ridpath initially refrained from publicly

challenging the findings of the Infractions Report and the "corrective

action" label that had been placed on his reassignment. Id. at ¶ 58.

Later, however, Ridpath retained counsel and filed a civil action

based on alleged constitutional violations. See Amended Complaint at

¶ 62.5 Subsequently, on July 14, 2003, Ridpath was relieved of his

responsibilities as an Adjunct Professor in the Exercise and Sports

Science Department (but not as the Director of Judicial Programs). Id.

at ¶¶ 46, 59. During related grievance proceedings, a University offi-

cial acknowledged under oath that Ridpath was discharged from his

teaching position due to negative comments he made about the Uni-

versity’s conduct during the NCAA investigation. Id. at ¶¶ 47, 61.

As of the filing of the Amended Complaint in these proceedings,

Ridpath remained in his position as the University’s Director of Judi-

cial Programs. See Amended Complaint at ¶¶ 1, 34. Meanwhile, he

continued to apply to other colleges and universities for a position in

his chosen field, as a compliance director or other intercollegiate ath-

letics administrator. Id. at ¶¶ 42, 52. He was unable to procure other

employment, however, because his professional reputation had been

permanently damaged by the "corrective action" label placed on his

reassignment from Marshall University’s Department of Athletics. Id.

at ¶ 52. According to the Amended Complaint, this label "calls into

question his honesty, integrity and professional competence as an

NCAA Compliance Coordinator," destroying his future career oppor-

tunities in intercollegiate athletics. Id. at ¶¶ 40-41. And, despite the

devastating effect of the "corrective action" label, no means were

available to Ridpath under NCAA bylaws to challenge it or the other

contents of the Infractions Report. Id. at ¶ 51(c).

5

In December 2002, Ridpath filed a complaint against several of the

Defendants herein, making allegations similar to those in these proceed-

ings. On July 8, 2003, that civil action — deemed a separate lawsuit from

these proceedings in the district court and assigned a different case num-

ber — was voluntarily dismissed without prejudice by Ridpath.

8 RIDPATH v. BOARD OF GOVERNORS

B.

On August 4, 2003, Ridpath instituted these proceedings with the

filing of his Initial Complaint against the Board, the Administrators,

and Coach Pruett. In the Initial Complaint, Ridpath alleged, inter alia,

the three § 1983 claims: specifically, that the Board had violated his

Fourteenth Amendment right to due process (the "due process

claim"); and that the Board, the Administrators, and Coach Pruett had

infringed on his First Amendment right to free speech in two distinct

ways (the "free speech claims").6 On September 15, 2003, the Board

and the Administrators, without answering the Initial Complaint,

sought dismissal under Rule 12(b)(6) or, in the alternative, transfer to

the appropriate state court. On September 30, 2003, Coach Pruett sep-

arately sought a Rule 12(b)(6) dismissal. In their motions and sup-

porting memoranda of law (collectively, the "September 2003

Motions"), these Defendants asserted multiple bases for dismissal, but

never contended that qualified immunity shielded any of them from

suit.7

On October 20, 2003, Ridpath filed a response in opposition to the

motions to dismiss. Subsequently, on October 30, 2003, the Board

and the Administrators filed a reply to Ridpath’s response (the "Octo-

6

Ridpath asserted each of the two free speech claims against the Board

and the Administrators, and only one of them against Coach Pruett.

7

In their Rule 12(b)(6) effort, the Board and the Administrators raised

thirteen grounds, five of which pertained to the § 1983 claims, as fol-

lows:

(1) that they were entitled to Eleventh Amendment immunity;

(2) that they were entitled to witness immunity;

(3) that Ridpath did not possess a constitutionally protected

property right in his employment with the University;

(4) that they did not infringe on Ridpath’s First and Fourteenth

Amendment rights; and

(5) that Ridpath had failed to join Hilliard, an indispensable

party.

In Coach Pruett’s separate motion, he asserted three grounds for relief,

including Eleventh Amendment immunity.

RIDPATH v. BOARD OF GOVERNORS 9

ber 2003 Reply Brief"). Therein, they asserted and argued, for the

first time, the defense of qualified immunity. Even then, their discus-

sion of this defense was limited to a few paragraphs inserted in the

midst of a largely unrelated argument on Eleventh Amendment

immunity.

On December 19, 2003, while the September 2003 Motions were

pending, Ridpath sought leave to amend the Initial Complaint. On

January 20, 2004, the district court authorized the filing of the

Amended Complaint, nunc pro tunc to December 19, 2003. The

Amended Complaint alleged the same causes of action as those in the

Initial Complaint. The Amended Complaint added Hilliard as a

Defendant, however, and it asserted the due process claim against the

Board, the Administrators, and Hilliard (instead of against the Board

alone, as in the Initial Complaint). As for the other § 1983 claims, the

Amended Complaint reasserted the two free speech claims against the

same Defendants, i.e., the Board, the Administrators, and (on one of

the two claims only) Coach Pruett.8

In early February 2004, the Board, the Administrators, and Coach

Pruett filed Rule 12(b)(6) motions to dismiss the Amended Complaint

(collectively, the "February 2004 Motions"). Shortly thereafter, on

February 17, 2004, the district court filed its Opinion, ruling on the

September 2003 Motions (which had sought dismissal of the Initial

Complaint), and applying those motions to the Amended Complaint.

The Opinion did not address the February 2004 Motions (which had

been directed to the Amended Complaint).9 Although qualified immu-

8

In addition to the three § 1983 claims at issue in these appeals, Rid-

path alleged, in both the Initial Complaint and the Amended Complaint,

a separate claim under § 1983 for civil conspiracy. He also asserted six

state law claims, arising under the Constitution of West Virginia and

state common law.

9

The February 2004 Motions included the following: Coach Pruett’s

February 5, 2004 motion to dismiss, incorporating by reference his ear-

lier dismissal motion and asserting no additional grounds; and the

Board’s February 12, 2004 motion to dismiss or, alternatively, to transfer

these proceedings to state court. The Board’s motion was accompanied

by a memorandum of law submitted in its name, as well as those of the

Administrators (who were not named as movants in the motion to dis-

10 RIDPATH v. BOARD OF GOVERNORS

nity was not raised by the Board and the Administrators in their Sep-

tember 2003 Motion, but rather only in their October 2003 Reply

Brief, the court ruled on this defense. The court concluded that the

Board and the Administrators were not entitled to qualified immunity

on the § 1983 claims as alleged in the Amended Complaint. See Opin-

ion at 15.10

On March 5, 2004, the Board and the Administrators filed a notice

of interlocutory appeal. On March 12, 2004, Coach Pruett filed a sim-

ilar notice. They collectively seek review of the district court’s Febru-

ary 17, 2004 qualified immunity ruling.11

miss). This memorandum reasserted many of the grounds relied on by

the Board and the Administrators in support of their earlier dismissal

motion; however, unlike the October 2003 Reply Brief, the memoran-

dum did not articulate any claims of qualified immunity. These anoma-

lies in the February 2004 Motions — i.e., the failure to raise qualified

immunity and the omission of the Administrators as movants — are

immaterial in these appeals, because the qualified immunity ruling at

issue was made pursuant to only the September 2003 Motions.

10

On February 25, 2004, after the district court filed its Opinion, Hil-

liard sought dismissal of the Amended Complaint on the basis of, inter

alia, qualified immunity. On February 27, 2004, Coach Pruett filed an

answer to the Amended Complaint, invoking qualified immunity. Those

qualified immunity claims were the first raised by Hilliard and Coach

Pruett.

11

After the filing of the notices of appeal, the district court ruled on the

February 2004 Motions. Specifically, on April 27, 2004, the court dis-

posed of Coach Pruett’s February 5, 2004 motion to dismiss (in which

qualified immunity was not at issue). Also on April 27, 2004, the court

granted the unopposed motion of the Board and the Administrators to

stay the district court proceedings pending our disposition of these

appeals. Despite this stay, the district court proceedings continued, and,

on September 23, 2004, the court ruled on the Board’s February 12, 2004

motion to dismiss. In rendering its decision on that motion, the court did

not disturb its earlier qualified immunity ruling of February 17, 2004,

which remains the sole subject of these appeals.

RIDPATH v. BOARD OF GOVERNORS 11

II.

The interlocutory nature of these appeals, and the somewhat tortu-

ous course of the district court proceedings, cause us to question our

jurisdiction. We therefore must first assess whether these appeals are

properly before us. See Mount Healthy City Sch. Dist. Bd. of Educ.

v. Doyle, 429 U.S. 274, 278 (1977) (observing that appellate courts

are obliged to inquire into jurisdictional issues sua sponte whenever

doubt arises as to existence of jurisdiction).12

A.

Normally, of course, a district court’s denial of a Rule 12(b)(6)

motion is not an appealable ruling, because it is not a final order

under 28 U.S.C. § 1291. Jenkins v. Medford, 119 F.3d 1156, 1159

(4th Cir. 1997) (en banc). The Appellants rely, however, on the collat-

eral order doctrine, under which the Supreme Court has carved out a

"small class" of trial court decisions that, though short of final judg-

ment, are immediately appealable. Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 546 (1949). Such decisions are appealable

because they "finally determine claims of right separable from, and

collateral to, rights asserted in the action, too important to be denied

review and too independent of the cause itself to require that appellate

consideration be deferred until the whole case is adjudicated." Id.

In Mitchell v. Forsyth, the Court held that the denial of qualified

immunity is immediately appealable under the collateral order doc-

trine to the extent that the availability of this defense turns on a ques-

tion of law. 472 U.S. 511, 530 (1985). This principle applies whether

qualified immunity was rejected at the dismissal stage (as in these

proceedings), or at the summary judgment stage. See Jenkins, 119

F.3d at 1159 & n.2 (citing Behrens v. Pelletier, 516 U.S. 299, 307

(1996)). Accordingly, the Board, the Administrators, and Coach Pru-

ett have properly invoked the collateral order doctrine.

12

Following oral argument, we requested supplemental briefing from

the parties on the jurisdictional issues. Although Ridpath had not previ-

ously challenged our jurisdiction, he did so in his supplemental submis-

sion. Meanwhile, the Appellants continued to maintain that we possess

jurisdiction over their appeals.

12 RIDPATH v. BOARD OF GOVERNORS

B.

Our jurisdictional assessment does not, however, end here. Only if

a party has standing to appeal do we possess authority to decide the

merits of his contentions. See Davis v. Scott, 176 F.3d 805, 807 (4th

Cir. 1999) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S.

534, 549 (1986)). And, for standing to appeal, a party must be "ag-

grieved" by a trial court’s judgment. H.A. Health Serve. v. Metro. Life

Ins. Co., 957 F.2d 120, 123 (4th Cir. 1992).

In these proceedings, the district court ruled only that the Board

and the Administrators are not entitled to qualified immunity on the

§ 1983 claims. The court thus did not address the availability of this

defense to Coach Pruett — and had no reason to do so, as he had not

raised qualified immunity as of the filing of the Opinion. Coach Pruett

therefore was not aggrieved by the court’s qualified immunity ruling,

and we must dismiss his appeal. By contrast, the Board and the

Administrators were aggrieved by the Opinion, because it denied their

claims of qualified immunity. Thus, they have standing to appeal.

C.

Finally, however, there remains some doubt on whether we should

consider the merits of the appeal by the Board and the Administrators,

because they belatedly raised their claims of qualified immunity, in

their October 2003 Reply Brief. We observe that qualified immunity

is an affirmative defense, and the burden of pleading it "rests with the

defendant." Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also

Sales v. Grant, 224 F.3d 293, 296 (4th Cir. 2000) (recognizing that

qualified immunity can be waived if not "squarely presented" to dis-

trict court). Generally, qualified immunity must be raised in an

answer or a dismissal motion. See Fed. R. Civ. P. 8(c) ("In pleading

to a preceding pleading, a party shall set forth affirmatively . . . any

other matter constituting an avoidance or affirmative defense."); Fed.

R. Civ. P. 12(b)(6) (allowing defense of failure to state claim upon

which relief can be granted to be raised by pre-answer motion). More-

over, where — as here — defendants raise an issue such as qualified

immunity only in a reply brief, a district court is entitled to refuse to

consider it at that stage of the proceedings. See, e.g., Montalvo v. Park

Ridge Police Dep’t, 170 F. Supp. 2d 800, 803 (N.D. Ill. 2001). And,

RIDPATH v. BOARD OF GOVERNORS 13

we may refuse to consider this defense on appeal if it was not pre-

served below. See Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 226

(4th Cir. 1997); Buffington v. Balt. County, 913 F.2d 113, 122 (4th

Cir. 1990).

We are not, however, precluded from considering an affirmative

defense that was not properly asserted in the trial court, if the court

has nonetheless chosen to address it. See, e.g., Curry v. Syracuse, 316

F.3d 324, 330-31 (2d Cir. 2003) (affirming district court’s application

of collateral estoppel over plaintiff’s contention that defendant waived

defense by raising it only in supplemental memorandum to pending

summary judgment motion). Such review is particularly appropriate

if the plaintiff suffers no prejudice, and if hearing the appeal serves

"the strong public policy in economizing the use of judicial resources

by avoiding relitigation." See id. at 331 (internal quotation marks

omitted).

Here, we cannot say that Ridpath was prejudiced by the district

court’s consideration of the untimely qualified immunity claims of the

Board and the Administrators. Indeed, the court rejected them. More-

over, although there is no indication in the record that Ridpath was

allowed to respond to these claims, it also does not appear that he

sought to do so. Ridpath fully addressed the relevant qualified immu-

nity issues in his submissions to us, and he did not initially object to

our jurisdiction. In these circumstances, and in the interest of judicial

economy, we will consider the merits of the qualified immunity

claims of the Board and the Administrators.

III.

We review de novo the denial of a motion to dismiss based on

qualified immunity, accepting as true the facts alleged in the com-

plaint and viewing them in the light most favorable to the plaintiff.

See Jenkins v. Medford, 119 F.3d 1156, 1159 (4th Cir. 1997) (en

banc). Qualified immunity shields government officials performing

discretionary functions from personal-capacity liability for civil dam-

ages under § 1983, "‘insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable

person would have known.’" Wilson v. Layne, 526 U.S. 603, 609

(1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see

14 RIDPATH v. BOARD OF GOVERNORS

also Kentucky v. Graham, 473 U.S. 159, 165-67 (1985). Government

officials are entitled to the defense of qualified immunity unless a

§ 1983 claim satisfies the following two-prong test (the "qualified

immunity test"): (1) the allegations underlying the claim, if true, sub-

stantiate the violation of a federal statutory or constitutional right; and

(2) this violation was of a "clearly established" right "of which a rea-

sonable person would have known." See Mellen v. Bunting, 327 F.3d

355, 365 (4th Cir. 2003) (citing Hope v. Pelzer, 536 U.S. 730, 736

(2002); Harlow, 457 U.S. at 818) (internal quotation marks omitted);

see also Wilson, 526 U.S. at 609.

A.

In view of basic principles of qualified immunity, we can easily

dispose of the Board’s assertions of this defense. Qualified immunity

may be invoked by a government official sued in his personal, or indi-

vidual, capacity. See Graham, 473 U.S. 159 at 165-67. This defense

is not available in an official-capacity suit brought against a govern-

ment entity or a government officer as that entity’s agent. Id. In these

proceedings, the Board was named as a defendant in its capacity as

a "public institution," i.e., as the proper party to be sued on behalf of

the University. See Amended Complaint at ¶ 2. And, an action against

an entity like the Board is necessarily an official-capacity suit. See

Graham, 473 U.S. at 165-66. Accordingly, the Board is not entitled

to the qualified immunity defense. See id. at 166-67. We therefore

affirm the district court’s denial of qualified immunity to the Board

on the § 1983 claims. We also recognize that, to the extent Ridpath’s

claims are asserted against the Administrators in their official capaci-

ties, the Administrators likewise are not entitled to qualified immunity.13

13

The § 1983 claims against the Administrators in their official capaci-

ties are essentially duplicative of the § 1983 claims against the Board.

See Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004) (citing Gra-

ham, 473 U.S. at 165-66). Although the Board and the Administrators,

in their official capacities, are not entitled to qualified immunity on the

§ 1983 claims, they may be entitled to other immunities and defenses.

See Graham, 473 U.S. at 167. For example, the district court ruled that

the Eleventh Amendment bars Ridpath from obtaining money damages

(but not prospective injunctive relief) from any of the official-capacity

Defendants on the § 1983 claims, see Opinion at 8, a ruling not before

us in these appeals.

RIDPATH v. BOARD OF GOVERNORS 15

In their individual capacities, however, the Administrators may yet

possess colorable claims of qualified immunity. We assess these

claims in turn, focusing on the Administrators’ assertions of qualified

immunity with respect to, first, the due process claim and, second, the

free speech claims.

B.

Under the qualified immunity test, the initial question with respect

to the due process claim is whether Ridpath has sufficiently alleged

the violation of a Fourteenth Amendment right. See Mellen, 327 F.3d

at 365. The next question is whether, at the time of the Administra-

tors’ alleged conduct, this right was a clearly established one of which

a reasonable person would have known. Id. For the following reasons,

Ridpath’s due process claim satisfies each of these prongs, and the

district court’s denial of qualified immunity on this claim must be

affirmed.

1.

With respect to his due process claim, Ridpath has identified the

constitutional right at issue as the right to procedural due process

when governmental action threatens a person’s liberty interest in his

reputation and choice of occupation. See Bd. of Regents v. Roth, 408

U.S. 564, 573 & n.12 (1972) (recognizing that notice and hearing

would have been required if "[t]he State, in declining to rehire the

respondent, [had made] any charge against him that might seriously

damage his standing and associations in his community" or had "im-

posed on him a stigma or other disability that foreclosed his freedom

to take advantage of other employment opportunities"); cf. Conn v.

Gabbert, 526 U.S. 286, 291-92 (1999) (observing that "the liberty

component of the Fourteenth Amendment’s Due Process Clause

includes some generalized due process right to choose one’s field of

private employment, but a right which is nevertheless subject to rea-

sonable government regulation").14 In support of this claim, Ridpath

14

As the Supreme Court has recognized, "[t]he requirements of proce-

dural due process apply only to the deprivation of interests encompassed

by the Fourteenth Amendment’s protection of liberty and property."

16 RIDPATH v. BOARD OF GOVERNORS

asserts that, by placing the "corrective action" label on his reassign-

ment from Compliance Director to Director of Judicial Programs at

the University, the Administrators knowingly foreclosed his career

opportunities in his chosen field of intercollegiate athletics adminis-

tration without allowing him an opportunity to defend himself. See

Amended Complaint at ¶¶ 40, 51.

Ridpath maintains that he was not provided any procedural safe-

guards with respect to the use of the "corrective action" label. The

Amended Complaint specifically alleges that Ridpath was not to

blame for the NCAA rules violations, and excluded from participating

in much of the related investigation, but that he was nonetheless made

a "scapegoat" for the infractions; that he was discouraged from retain-

ing personal counsel during the investigation; that the decision to

place the "corrective action" label on his reassignment was made

without his input and in contravention of an agreement between him

and the University; and that he had no means to challenge this label

or other aspects of the Infractions Report. The Administrators do not

dispute that these allegations are sufficient to establish a lack of pro-

cedural safeguards.

The Administrators contend, however, that they were not required

to provide Ridpath with any procedural safeguards, because the "cor-

rective action" label did not implicate a protected liberty interest.

Relying on precedent establishing the elements of a valid liberty inter-

est claim, they maintain that the Amended Complaint’s allegations are

insufficient to establish the following (collectively, the "liberty inter-

est contentions"): (a) that the "corrective action" label constituted a

charge of a serious character defect; (b) that this label accompanied

any damage to Ridpath’s employment status; (c) that it was made

public; and (d) that it was false. We are thus obliged to assess the

Administrators’ four liberty interest contentions, in order to determine

Roth, 408 U.S. at 569. In order to have a protected property interest in

his employment, a person must possess a legitimate claim of entitlement

to it — created, for example, by contract or state law. See id. at 577-78;

Robertson v. Rogers, 679 F.2d 1090, 1091 (4th Cir. 1982). Ridpath, an

at-will employee of the University, is not claiming any protected prop-

erty interest in his employment.

RIDPATH v. BOARD OF GOVERNORS 17

whether Ridpath has sufficiently alleged a Fourteenth Amendment

violation and thus satisfied the first prong of the qualified immunity

test.

a.

The first of the liberty interest contentions is that the "corrective

action" label did not implicate a protected liberty interest because it

cannot be understood to constitute a charge of a serious character

defect.15 The type of communication that gives rise to a protected lib-

erty interest implies "the existence of serious character defects such

as dishonesty or immorality." Robertson v. Rogers, 679 F.2d 1090,

1092 (4th Cir. 1982) (citing Roth, 408 U.S. at 573). In assessing lib-

erty interest claims, we have distinguished statements that imply such

serious character defects from statements that simply allege "incom-

petence." Compare Boston v. Webb, 783 F.2d 1163, 1165-66 (4th Cir.

1986) (recognizing that plaintiff’s liberty interest "was surely impli-

cated" by public announcement that he was discharged after failing to

disprove allegation of receiving bribe), Cox v. N. Va. Transp.

Comm’n, 551 F.2d 555, 557-58 (4th Cir. 1976) (affirming trial court’s

determination that plaintiff’s liberty interest was infringed when

employer publicly linked her discharge to investigation of financial

irregularities, thus "insinuating dishonesty"), and McNeil v. Butz, 480

F.2d 314, 319-20 (4th Cir. 1973) (concluding that federal employees’

liberty interests were implicated by government-employer’s charges

of Agriculture Department regulation violations that "smack of delib-

erate fraud" and "in effect allege dishonesty"), with Zepp v. Rehr-

mann, 79 F.3d 381, 388 (4th Cir. 1996) (rejecting deprivation of lib-

erty interest claim where employer announced that plaintiff was being

forced to retire "due to management problems" — an accusation, at

most, "of incompetence or unsatisfactory job performance"), and

Robertson, 679 F.2d at 1091-92 (concluding that liberty interest was

not implicated by nonrenewal of employment contract for "incompe-

15

On this issue and others, the Administrators extensively rely on

unpublished decisions of this Court. Of course, under Local Rule 36(c),

citations to unpublished decisions are disfavored. These citations might

be warranted if, for example, there were no published decision on point.

Because such circumstances are not present here, however, we do not

address the unpublished decisions cited by the Administrators.

18 RIDPATH v. BOARD OF GOVERNORS

tence and outside activities," because such allegations did not involve

attack on plaintiff’s integrity or honor).

The Administrators maintain that, by using the "corrective action"

label, they provided no reasons for Ridpath’s reassignment, or at least

indicated nothing more than that he was incompetent as Compliance

Director. Ridpath alleges, however, that this label calls into question

not only his "professional competence as an NCAA Compliance

Coordinator," but also his "honesty" and "integrity." Amended Com-

plaint at ¶ 41. Of course, we are obliged, in applying Rule 12(b)(6)

principles, to accept the allegations of the Amended Complaint as true

and to view them in the light most favorable to Ridpath. See Jenkins,

119 F.3d at 1159. Utilizing this standard, we agree with Ridpath: the

Administrators’ use of the "corrective action" label lays blame on him

for the University’s NCAA rules violations — including academic

fraud and impermissible employment of props at the Machine Shop

— and thus insinuates "the existence of serious character defects such

as dishonesty or immorality." Robertson, 679 F.2d at 1092. Indeed,

Ridpath contends that, within the intercollegiate athletics community

in particular, the use of the "corrective action" label in this context is

typically understood to connote dishonesty and other serious character

defects on the part of the label’s bearer. This, as the district court rec-

ognized, is a question of fact, not properly assessed on a Rule

12(b)(6) motion. We therefore reject the Administrators’ first liberty

interest contention, that the "corrective action" label cannot be under-

stood to imply a serious character defect.

b.

The Administrators’ second liberty interest contention is that the

"corrective action" label did not implicate a protected liberty interest

because it did not accompany damage to Ridpath’s employment sta-

tus. We have required that, in order to deprive an employee of a lib-

erty interest, a public employer’s stigmatizing remarks must be "made

in the course of a discharge or significant demotion." Stone v. Univ.

of Md. Med. Sys. Corp., 855 F.2d 167, 172 n.5 (4th Cir. 1988) (citing

Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136, 1139 (7th

Cir. 1984); Mosrie v. Barry, 718 F.2d 1151, 1160-62 (D.C. Cir.

1983); Moore v. Otero, 557 F.2d 435, 438 (5th Cir. 1977)). As estab-

lished in decisions of our sister circuits on which we relied in Stone,

RIDPATH v. BOARD OF GOVERNORS 19

such a "significant demotion" may include the reassignment of an

employee to a position outside his field of choice. See Lawson, 725

F.2d at 1139; Moore, 557 F.2d at 438 & n.11.16

The Administrators disregard the gravity of Ridpath’s reassignment

outside the Department of Athletics, from Compliance Director to

Director of Judicial Programs. Rather, the Administrators essentially

contend that Ridpath, having "voluntarily" changed positions, was

neither discharged nor given a significant demotion. Properly assess-

ing Ridpath’s allegations in the light most favorable to him, however,

these allegations establish that Ridpath’s reassignment was neither

voluntary nor an innocuous transfer. Rather, it was a significant

16

Stone and the decisions relied on therein followed the Supreme

Court’s decision in Paul v. Davis, 424 U.S. 693 (1976), explaining its

earlier decision in Roth. The plaintiff in Paul had asserted a § 1983 claim

based on allegations that the defendant-police chief had included the

plaintiff’s name and photograph on a flyer of "Active Shoplifters" dis-

tributed for posting by local merchants, thus branding him as a criminal

and seriously impairing his future employment opportunities. See 424

U.S. at 697. In rejecting this claim as one for defamation alone, the

Supreme Court characterized its previous decision in Roth as recognizing

"that governmental action defaming an individual in the course of declin-

ing to rehire him could entitle the person to notice and an opportunity to

be heard as to the defamation." Paul, 424 U.S. at 709-10 (citing Roth,

408 U.S. at 573) (emphasis added). The Paul Court deemed the language

of Roth to be "inconsistent with any notion that a defamation perpetrated

by a government official but unconnected with any refusal to rehire

would be actionable under the Fourteenth Amendment." Paul, 424 U.S.

at 709. Accordingly, under what is sometimes referred to as its "stigma

plus" test, the Paul Court instructed that no deprivation of a liberty inter-

est occurs when, in the course of defaming a person, a public official

solely impairs that person’s future employment opportunities, without

subjecting him to a present injury such as termination of government

employment. Id.; accord Siegert v. Gilley, 500 U.S. 226, 233 (1991)

("Defamation, by itself, is a tort actionable under the laws of most States,

but not a constitutional deprivation." (emphasis added)); see also John-

son v. Morris, 903 F.2d 996, 999 (4th Cir. 1990) ("Publication of stigma-

tizing charges alone, without damages to ‘tangible interests such as

employment,’ does not invoke the due process clause." (quoting Paul,

424 U.S. at 701)).

20 RIDPATH v. BOARD OF GOVERNORS

demotion to a position outside his chosen field, rendering it tanta-

mount to an outright discharge.

The Amended Complaint paints an ugly picture of the circum-

stances surrounding Ridpath’s reassignment. As a key component to

the scheme to make him a "scapegoat" for the University’s NCAA

rules violations, Ridpath was banished from the Department of Ath-

letics. He was then relegated to a position for which he lacked the

necessary education and training — a position that may have been

prized by others, but to Ridpath constituted, at best, a perilous detour

on his career path and, at worst, a dead end. Ridpath had to be per-

suaded to accept this transfer with the offer of significant induce-

ments. Hence, he was given a pay raise, and was eventually making

$15,000 more than the previous Director of Judicial Programs. More

importantly, he was also falsely promised that he would be exoner-

ated of blame for the athletics program infractions. Once this promise

was broken and his reassignment was characterized as a "corrective

action" to the NCAA, Ridpath was threatened against publicly chal-

lenging this label or the other conclusions in the Infractions Report.

Cottrill warned Ridpath that "[y]ou need to think about your family

young man." Amended Complaint at ¶ 57(a). Grose threatened to

"bury [Ridpath] personally and professionally." Id. And Angel, the

University’s President, asserted that he "would cut the dead limb from

the tree" and would have "no problem firing [Ridpath] on the spot"

if he commented publicly. Id. at ¶ 57(b). These circumstances belie

any notion that Ridpath’s reassignment cannot be considered a signif-

icant demotion. Indeed, the circumstances strongly suggest that the

Administrators knew the reassignment constituted a significant demo-

tion and thus attempted to frame it as a voluntary transfer, so that if

their attempts to muzzle Ridpath failed, they could still evade liability

in any future litigation.

Under our precedent, Ridpath’s allegations are more than sufficient

to show that he was subjected to an involuntary and significant demo-

tion in connection with the stigmatizing "corrective action" label.

First of all, we have spelled out that a change in employment status

is not voluntary if it is "obtained by the employer’s misrepresentation

or deception" or "forced by the employer’s duress or coercion." Stone,

855 F.2d at 174. The circumstances alleged here — including the ruse

that Ridpath would not be blamed for the NCAA rules violations if

RIDPATH v. BOARD OF GOVERNORS 21

he agreed to the reassignment — are squarely within the Stone stan-

dard. Cf. id. at 172 n.5, 175 (concluding that, absent showing of either

misrepresentation or coercion, Stone plaintiff voluntarily resigned his

employment and thus could not sustain liberty interest claim).

Moreover, the Lawson and Moore decisions, on which we relied in

Stone, establish that the reassignment of an employee to a position

outside his field of choice may very well constitute a "significant

demotion" sufficient to invoke due process protections.17 In Lawson,

the Seventh Circuit specifically recognized that "[t]he concept of lib-

erty in Fourteenth Amendment jurisprudence has long included the

liberty to follow a trade, profession, or other calling." 725 F.2d at

1138. The court further observed that an employee’s liberty interest

may be infringed by a firing or other employment action that serves

to "exlu[de him] from his occupation." Id. at 1139. Accordingly, the

court held that a public employer cannot avoid liability "by offering

the employee a job far beneath the one he had," where being so

demoted "is to be as effectively excluded from one’s trade or calling

as by being thrown out on the street." Id. Similarly, in Moore, the

Fifth Circuit recognized that the internal transfer of an employee

would support a liberty interest claim if the transfer "constitutes such

a change of status as to be regarded essentially as a loss of employ-

ment." 557 F.2d at 438.18 The circumstances of Ridpath’s reassign-

ment fit neatly with those that the Lawson and Moore courts have

recognized, with our approval, would support a liberty interest claim.

Ridpath was not simply transferred from one position to a slightly less

desirable or even a better one (no matter what his salary as Director

of Judicial Programs or how appealing that position might have been

17

The third decision of a sister circuit on which we relied in Stone —

the D.C. Circuit’s decision in Mosrie — is not on point with the issues

herein. See Mosrie, 718 F.2d at 1161 (concluding that lateral transfer

within same line of work, with no reduction in rank or pay, did not con-

stitute deprivation of liberty).

18

Unlike the Lawson court, the Moore court did not explicitly discuss

the significance of one’s liberty interest in pursuing a chosen occupation

or calling. However, as an example of the type of internal transfer that

might support a liberty interest claim, the Moore court identified a hypo-

thetical demotion from police corporal to janitor (which, obviously,

would constitute a change in line of work). See 557 F.2d at 438 n.11.

22 RIDPATH v. BOARD OF GOVERNORS

to others). Rather, in a dramatic change of status equivalent to out-

right discharge, he was ousted from the University’s Department of

Athletics and completely excluded from his chosen field of intercolle-

giate athletics administration.19 We therefore reject the Administra-

tors’ second liberty interest contention, that the "corrective action"

label did not accompany damage to Ridpath’s employment status suf-

ficient to invoke his right to procedural due process.20

c.

The Administrators’ third liberty interest contention is that the

"corrective action" label did not implicate a protected liberty interest,

as it was not made public. In order to invoke due process protections,

a charge of a serious character defect must be publicly disclosed. See

Wooten v. Clifton Forge Sch. Bd., 655 F.2d 552, 555 (4th Cir. 1981);

19

These facts stand in stark contrast to those that have been deemed

insufficient to support liberty interest claims. In Johnson v. Morris, for

example, we rejected the liberty interest claim of a plaintiff who was

merely demoted from one position to another within the Virginia Depart-

ment of Corrections, presumably with no change in line of work (as there

was no allegation to the contrary). See 903 F.2d 996, 997-99 (4th Cir.

1990). Likewise, in Moore, the Fifth Circuit concluded that no liberty

interest was implicated where the plaintiff was only demoted from police

corporal to patrolman. See 557 F.2d at 438.

20

In his dissent on this aspect of the Administrators’ appeal, our distin-

guished colleague mischaracterizes Ridpath’s due process claim as one

for defamation alone and, in so doing, erroneously analogizes the facts

before us to those presented in Siegert v. Gilley, 500 U.S. 226 (1991).

There, the Supreme Court rejected the plaintiff-employee’s liberty inter-

est claim for failure to satisfy the "stigma plus" test previously outlined

in Paul v. Davis, 424 U.S. 693, 709-10 (1976) (recognizing that defama-

tory remark may implicate liberty interest if made in connection with dis-

charge from employment). See Siegert, 500 U.S. at 233-34; see also

supra note 16. In rejecting Siegert’s liberty interest claim, the Court

explained that "[t]he alleged defamation was not uttered incident to the

termination of Siegert’s employment," in that (1) "he voluntarily

resigned from his position," and (2) the alleged defamation did not occur

until "several weeks later." Siegert, 500 U.S. at 234. Here, by stark con-

trast, the alleged defamation — the use of the "corrective action" label

— occurred incident to Ridpath’s involuntary and significant demotion.

RIDPATH v. BOARD OF GOVERNORS 23

Fuller v. Laurens County Sch. Dist. No. 56, 563 F.2d 137, 141 (4th

Cir. 1977). In this matter, Ridpath has plainly alleged that the "correc-

tive action" label was communicated to the NCAA and to the public

at large. Rather than disputing the sufficiency of this allegation, the

Administrators contend that absolute witness immunity shields them

from liability for any otherwise public use of the "corrective action"

label during the NCAA administrative process. See generally Briscoe

v. LaHue, 460 U.S. 325 (1983) (recognizing that parties and witnesses

are entitled to absolute immunity from damages liability for their tes-

timony in judicial proceedings). Unfortunately for the Administrators,

their appeal is premised not on a denial of witness immunity, but on

the denial of qualified immunity only. As a result, their claims of wit-

ness immunity are not before us, and we must conclude that their

third liberty interest contention is without merit.

d.

The Administrators’ final liberty interest contention is that the

"corrective action" label did not implicate a protected liberty interest

because it did not constitute a false statement. There can be no depri-

vation of liberty unless the stigmatizing charges at issue are false. See

Stone, 855 F.2d at 172 n.5. The Administrators assert that Ridpath has

not alleged that his reassignment was not a "corrective action." This

contention is belied by the Amended Complaint. Ridpath repeatedly

disputes therein the central implication of the "corrective action"

label, i.e., that he was responsible for the University’s NCAA rules

violations. Indeed, the essence of Ridpath’s due process claim is that

he should have been provided notice and a hearing to prove his lack

of culpability and clear his name. This is a matter in which the falsity

of a stigmatizing charge is fervently contested — not, for instance,

one in which the plaintiff had previously conceded the truth of stig-

matizing charges, in effect acting as his own accuser and rendering

a hearing useless. Cf. McNeil, 480 F.2d at 326. We therefore reject the

Administrators’ final liberty interest contention.

In summary, contrary to the Administrators’ liberty interest conten-

tions, the allegations of Ridpath’s Amended Complaint and the rea-

sonable inferences drawn therefrom establish that the Administrators

publicly made a false charge against Ridpath, connoting dishonesty

and other serious character defects on his part, in the course of sub-

24 RIDPATH v. BOARD OF GOVERNORS

jecting him to a significant demotion to a position outside his field of

choice. Moreover, it is undisputed that the Amended Complaint

reflects that Ridpath was not provided notice or an opportunity to be

heard with respect to this charge. Ridpath therefore has sufficiently

alleged the violation of his Fourteenth Amendment right to due pro-

cess when a liberty interest is at stake. And, thus, the allegations

underlying his due process claim satisfy the first prong of the quali-

fied immunity test.

2.

Turning to the second prong of the qualified immunity test, we

must next assess whether the Fourteenth Amendment right allegedly

contravened by the Administrators was a "clearly established" right

"of which a reasonable person would have known." Mellen v. Bun-

ting, 327 F.3d 355, 365 (4th Cir. 2003) (internal quotation marks

omitted). In its decision in Hope v. Pelzer, the Supreme Court clari-

fied the appropriate inquiry on this issue. See 536 U.S. 730, 739-41

(2002); see also Jones v. Buchanan, 325 F.3d 520, 531-32 (4th Cir.

2003). As the Court explained, a constitutional right is clearly estab-

lished when "its contours [are] sufficiently clear that a reasonable

official would understand that what he is doing violates that right."

Hope, 536 U.S. at 739 (internal quotation marks omitted). That is,

"‘in the light of pre-existing law the unlawfulness must be apparent,’"

id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)), but

"the very action in question [need not have] previously been held

unlawful," id. (internal quotation marks omitted), because "‘general

statements of the law are not inherently incapable of giving fair and

clear warning, and . . . a general constitutional rule already identified

in the decisional law may apply with obvious clarity to the specific

conduct in question,’" id. at 741 (quoting United States v. Lanier, 520

U.S. 259, 270-71 (1997)). Thus, "officials can still be on notice that

their conduct violates established law even in novel factual circum-

stances." Id. The "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. Id.

The key events alleged here — the labeling of Ridpath’s reassign-

ment outside the Department of Athletics as a "corrective action"

without giving him notice or a hearing — occurred in late 2001. At

RIDPATH v. BOARD OF GOVERNORS 25

that time, the state of the law was such that the Administrators were

on notice that their conduct infringed on a liberty interest held by Rid-

path, rendering their failure to provide him with procedural safe-

guards a violation of his Fourteenth Amendment right to due process.

Indeed, decades earlier, in its decision in Board of Regents v. Roth,

the Supreme Court recognized that "notice and an opportunity to be

heard are essential" when a public employee’s liberty interest is

infringed by a charge implying such serious character defects as "dis-

honesty[ ] or immorality" lodged in the course of an injury such as

failure to rehire. See 408 U.S. 564, 573 (1972) (internal quotation

marks omitted); see also Siegert v. Gilley, 500 U.S. 226, 233 (1991);

Paul v. Davis, 424 U.S. 693, 709 (1976). In the wake of Roth and its

progeny, we have reiterated and expounded on the requirements of

such a liberty interest claim on numerous occasions.

We have provided, in several decisions, concrete examples of the

types of public statements implying the existence of serious character

defects such as dishonesty and immorality. See Boston v. Webb, 783

F.2d 1163, 1165-66 (4th Cir. 1986) (announcement that plaintiff was

discharged after failing to disprove allegation of receiving bribe); Cox

v. N. Va. Transp. Comm’n, 551 F.2d 555, 557-58 (4th Cir. 1976)

(statement linking plaintiff’s discharge to investigation of financial

irregularities); McNeil v. Butz, 480 F.2d 314, 319-20 (4th Cir. 1973)

(charges against government employees of Agriculture Department

regulation violations such as fraudulently obtaining federal payments

for farm operators). Of course, none of these decisions involved the

use of the "corrective action" label in the course of an NCAA investi-

gation. However, there is no logical distinction between, for instance,

linking an employee’s discharge to an investigation of financial irreg-

ularities, see Cox, 551 F.2d at 557-58, and tying Ridpath’s reassign-

ment from the Department of Athletics to the University’s serious

NCAA rules violations (as the "corrective action" label served to do).

In each of these scenarios, the charge at issue can be understood to

insinuate dishonesty and other serious character defects. Thus, our

precedent gave the Administrators fair warning that the "corrective

action" label was just the type of charge that implicates a protected

liberty interest.21

21

Our precedent also clarifies that, in order to sustain a liberty interest

claim, the stigmatizing charge at issue must have been both publicized

26 RIDPATH v. BOARD OF GOVERNORS

Similarly, we have specified that a public employer’s stigmatizing

remarks may infringe on an employee’s liberty interest if such

remarks are "made in the course of a discharge or significant demo-

tion." Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 n.5

(4th Cir. 1988). For that proposition, we relied on decisions of our sis-

ter circuits, including Lawson v. Sheriff of Tippecanoe County, 725

F.2d 1136, 1139 (7th Cir. 1984), and Moore v. Otero, 557 F.2d 435,

438 (5th Cir. 1977). Although we had no occasion to elaborate on the

definition of "significant demotion" in Stone, the courts in Lawson

and Moore did so, with our approval. And the definitions they pro-

vided — such as an offer of "a job far beneath the one he had," where

being so demoted "is to be as effectively excluded from one’s trade

or calling as by being thrown out on the street" — squarely corre-

spond with Ridpath’s reassignment from Compliance Director to

Director of Judicial Programs (a position wholly outside his chosen

field). See Lawson, 725 F.2d at 1139. The Administrators therefore

were provided with fair and clear warning that, by banishing Ridpath

from the Department of Athletics, they were unlawfully subjecting

him to a "significant demotion" within the meaning of Stone and

authorities relied on therein.22

Finally, because it is undisputed that Ridpath was not provided any

procedural safeguards with respect to the labeling of his reassignment

as a "corrective action," it cannot be questioned that the Administra-

and false. See, e.g., Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167,

172 n.5 (4th Cir. 1988); Wooten v. Clifton Forge Sch. Bd., 655 F.2d 552,

555 (4th Cir. 1981). According to the Amended Complaint, the "correc-

tive action" label was communicated to the NCAA and to the public at

large, falsely conveying that Ridpath was at fault for the University’s

NCAA rules violations. Our precedent applies with obvious clarity to

this alleged conduct.

22

Moreover, the Administrators cannot have equated the circumstances

of Ridpath’s reassignment with the facts of Stone, in which we rejected

the plaintiff’s liberty interest claim on the ground that he had voluntarily

resigned from his employment. See 855 F.2d at 172 n.5, 178. As we

spelled out in Stone, a change in employment status is not voluntary if

it is "obtained by the employer’s misrepresentation or deception" or

"forced by the employer’s duress or coercion." Id. at 174. Viewing the

allegations of the Amended Complaint in the light most favorable to Rid-

path, the circumstances of his reassignment readily meet this standard.

RIDPATH v. BOARD OF GOVERNORS 27

tors contravened Roth’s requirement for "notice and an opportunity to

be heard." See 408 U.S. at 573. Accordingly, accepting the allegations

of the Amended Complaint as true, the Administrators contravened a

clearly established Fourteenth Amendment procedural due process

right of which a reasonable person would have known. They therefore

are not entitled to qualified immunity at this stage of these proceed-

ings on Ridpath’s due process claim.

C.

The Administrators next maintain that the district court erred in

denying their Rule 12(b)(6) motion to dismiss Ridpath’s free speech

claims on qualified immunity grounds. The Administrators are enti-

tled to qualified immunity on these claims unless each claim satisfies

both prongs of the qualified immunity test. As explained below, we

conclude that each claim meets this test.23

1.

The first question before us on the free speech claims is whether,

as to each claim, Ridpath has sufficiently alleged a violation of a First

Amendment right. See Mellen v. Bunting, 327 F.3d 355, 365 (4th Cir.

2003). Ridpath has raised two distinct free speech claims against the

Administrators. First, he maintains that being relieved from his

23

In affirming the district court’s denial of qualified immunity to the

Administrators on Ridpath’s free speech claims, we emphasize that these

proceedings are at the 12(b)(6) dismissal stage, and that we are thus

required to accept as true the facts alleged in the Amended Complaint

and view them in the light most favorable to Ridpath. See Jenkins v.

Medford, 119 F.3d 1156, 1159 (4th Cir. 1997) (en banc). Based on the

allegations of the Amended Complaint, we are unable to say that Ridpath

cannot build a factual record to demonstrate that his clearly established

First Amendment rights were contravened. Simply put, the qualified

immunity issue is open for further assessment upon development of the

factual record, and neither this decision nor the district court’s Opinion

precludes the Administrators from reasserting claims of qualified immu-

nity at a later stage of these proceedings. Cf. McVey v. Stacy, 157 F.3d

271, 279 (4th Cir. 1998) (affirming district court’s ruling to defer decid-

ing qualified immunity issue until record better developed on plaintiff’s

First Amendment claim).

28 RIDPATH v. BOARD OF GOVERNORS

adjunct teaching position in the Department of Exercise and Sports

Science constituted impermissible retaliation, in part "for his speaking

out against [the University’s] conduct during the NCAA infractions

process," and in part for "having exercised his First Amendment right

to petition the government for redress of grievance by retaining coun-

sel and filing a civil action in response to . . . constitutional viola-

tions" (the "retaliation claim"). Amended Complaint at ¶¶ 61-62.24

Second, he maintains that the Administrators threatened him profes-

sionally (and personally) if he spoke out publicly about the NCAA

investigation and that, as a result, he "refrained from immediately

and/or publicly challenging the NCAA Infractions Report and ‘cor-

rective action’ label" (the "chilling claim"). Id. at ¶¶ 57-58. We assess

in turn the sufficiency of the allegations underlying each free speech

claim.

a.

With regard to the retaliation claim, a public employer contravenes

a public employee’s First Amendment rights when it discharges or

"refuses to rehire [the] employee," or when it makes decisions relating

to "promotion, transfer, recall, and hiring based on the exercise of"

that employee’s free speech rights. Suarez Corp. Indus. v. McGraw,

202 F.3d 676, 686 (4th Cir. 2000) (internal quotation marks omitted).25

In order to prove that a retaliatory employment action violated a pub-

lic employee’s free speech rights, the employee must satisfy the three

prong-test we laid out in McVey v. Stacy, 157 F.3d 271 (4th Cir.

1998) (the "McVey test"). First, the public employee must have spo-

ken as a citizen, not as an employee, on a matter of public concern.

Id. at 277. Second, the employee’s interest in the expression at issue

24

We observe that Ridpath alleges that he was relieved of his teaching

position, not his position as Compliance Director, in retaliation for the

exercise of his First Amendment rights.

25

Contrary to the Administrators’ contention, a public employee need

not have a protected property interest in his employment to state a retali-

ation claim. See Mount Healthy City Sch. Dist. v. Doyle, 429 U.S. 274,

283-84 (1977) ("Even though he could have been discharged for no rea-

son whatever, . . . he may nonetheless establish a claim to reinstatement

if the decision not to rehire him was made by reason of his exercise of

constitutionally protected First Amendment freedoms.").

RIDPATH v. BOARD OF GOVERNORS 29

must have outweighed the employer’s "interest in providing effective

and efficient services to the public." Id. Third, there must have been

a sufficient causal nexus between the protected speech and the retalia-

tory employment action. Id. at 277-78.26

i.

Under the first prong of the McVey test, we must assess whether

the Amended Complaint has sufficiently alleged that Ridpath’s

speech was as a private citizen on a matter of public concern. See

McVey, 157 F.3d at 277. An employee’s speech involves a matter of

public concern if it addresses "an issue of social, political, or other

interest to a community." Urofsky v. Gilmore, 216 F.3d 401, 406-07

(4th Cir. 2000) (en banc). Importantly, "the place where the speech

occurs is irrelevant: An employee may speak as a citizen on a matter

of public concern at the workplace, and may speak as an employee

away from the workplace." Id. at 407. While "[t]he inquiry into the

protected status of speech is one of law, not fact," Connick v. Myers,

461 U.S. 138, 148 n.7 (1983), such status "must be determined by the

content, form, and context of a given statement, as revealed by the

whole record," id. at 147-48.

The Amended Complaint alleges that Ridpath was relieved of his

teaching duties for, inter alia, "speaking out against [the University’s]

conduct during the NCAA infractions process." Amended Complaint

at ¶ 61. It does not specify whether Ridpath’s remarks concerned the

26

The McVey test fleshes out the balancing test first articulated by the

Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968),

and further explained in later decisions. The McVey test’s first prong,

whether the employee’s speech addressed a matter of public concern, is

"[t]he threshold question." See Rankin v. McPherson, 483 U.S. 378, 384

(1987). The second prong, whether the employee’s interest in speaking

outweighed the employer’s interest in the efficient provision of public

services, embodies Pickering’s original formula. See Pickering, 391 U.S.

at 568. The McVey test’s third prong, causation, requires the employee

to demonstrate a sufficient nexus between the protected speech and an

adverse employment action by the employer. See Huang v. Bd. of Gover-

nors, 902 F.2d 1134, 1140 (4th Cir. 1990) (requiring employee to show

"but for" connection).

30 RIDPATH v. BOARD OF GOVERNORS

University’s treatment of Ridpath, its general response to the NCAA

rules violations, or its perpetration of the underlying violations. Nev-

ertheless, a district court may reject a claim at the Rule 12(b)(6) stage

only if "it appears beyond all doubt that the plaintiff can prove no set

of facts in support of his claim that would entitle him to relief."

Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001). Allegations of

NCAA rules violations by a prominent sports program at a major pub-

lic university, and the nature of the university’s handling of such alle-

gations, are matters of great "social, political, or other interest to a

community." See Urofsky, 216 F.3d at 406. We therefore cannot say

that Ridpath will be unable to build a factual record which demon-

strates that his remarks were on a matter of public concern. Moreover,

the Amended Complaint supports the inference that Ridpath com-

mented on the University’s conduct during the NCAA infractions pro-

cess in a personal capacity and not as a representative of the

University. Accordingly, Ridpath has sufficiently alleged that he was

speaking as a private citizen on a matter of public concern and satis-

fied the first prong of the McVey test.27

ii.

Under the McVey test’s second prong, commonly referred to as

"Pickering balancing," we must assess whether the Amended Com-

plaint has sufficiently alleged that Ridpath’s interest in First Amend-

ment expression outweighed the University’s interest in the efficient

provision of public services. See McVey, 157 F.3d at 277. For Picker-

ing balancing, "we must take into account the context of the employ-

ee’s speech" and "the extent to which it disrupts the operation and

mission" of the institution. Id. at 278. Factors relevant to this inquiry

include whether a public employee’s speech (1) impaired the mainte-

nance of discipline by supervisors; (2) impaired harmony among

coworkers; (3) damaged close personal relationships; (4) impeded the

performance of the public employee’s duties; (5) interfered with the

operation of the institution; (6) undermined the mission of the institu-

27

The Amended Complaint also alleges that Ridpath was relieved of

his teaching position for "retaining counsel and filing a civil action in

response to . . . constitutional violations." Amended Complaint at ¶ 62.

In their appeal, the Administrators have not challenged Ridpath’s posi-

tion that his filing of a civil action constituted protected speech.

RIDPATH v. BOARD OF GOVERNORS 31

tion; (7) was communicated to the public or to coworkers in private;

(8) conflicted with the responsibilities of the employee within the

institution; and (9) abused the authority and public accountability that

the employee’s role entailed. Id.28

Here, we cannot say that Ridpath will be unable to show that his

interest in First Amendment expression outweighed the University’s

interest in the efficient operation of his workplace. Nothing in the

Amended Complaint indicates, for example, that his comments

impaired the maintenance of discipline, hurt workplace morale, or

constituted an abuse of his position. Moreover, the Administrators

have not suggested how — or even that — Ridpath’s remarks inter-

fered with the University’s efficient operation.29

Once a factual record is developed through discovery, the evidence

could support the inference that Ridpath’s workplace was impaired as

a result of his comments and that he simply had to be terminated from

his adjunct teaching position. Such a question, however, is not to be

assessed under Rule 12(b)(6) but in Rule 56 summary judgment pro-

ceedings. See McVey, 157 F.3d at 278-79 (affirming district court’s

decision to defer deciding qualified immunity until "record is better

28

A majority of the McVey panel observed that both this Court and the

Supreme Court have also included the value of the employee’s speech to

the public in the Pickering balance. See McVey, 157 F.3d at 279

(Murnaghan, J., concurring in part and concurring in the judgment)

(emphasizing importance of considering public interest in Pickering bal-

ancing); id. at 282 (Michael, J.) (concurring "except to the extent . . .

qualified by Judge Murnaghan’s separate opinion"). Judge Murnaghan

observed that, in Connick, the Supreme Court cautioned that "‘a stronger

showing [of employer interest] may be necessary if the employee’s

speech more substantially involved matters of public concern.’" Id. at

279 (quoting Connick, 461 U.S. at 152) (alteration in original). In the

present analysis, however, we need not assess the value of Ridpath’s

speech to the public, as it would be difficult to calculate based on the

Amended Complaint, and we can decide in Ridpath’s favor without

reaching it.

29

Instead, the Administrators contend that the University was a more

efficient place after Ridpath was relieved of his teaching position

because the University no longer had to pay his salary and he had been

an inefficient teacher.

32 RIDPATH v. BOARD OF GOVERNORS

developed" in part because complaint did not "resolve on its face"

second prong of McVey test). At the Rule 12(b)(6) stage, Ridpath’s

allegations warrant the inference that his free speech interests out-

weigh the detrimental effect, if any, his comments may have had on

the efficiency of his workplace. Indeed, read in the proper light, the

Amended Complaint alleges that he was relieved of his adjunct teach-

ing position for protected statements that had no impact on his work-

place whatsoever. Accepting those allegations as true and giving

Ridpath the benefit of the reasonable factual inferences, we cannot

say that "it appears beyond all doubt that [Ridpath] can prove no set

of facts" to tip the Pickering balance in his favor. See Trulock, 275

F.3d at 405. Accordingly, Ridpath has sufficiently shown that his

interest in speaking outweighed the University’s interest in promoting

the efficient provision of public services, and he has satisfied the sec-

ond prong of the McVey test.

iii.

Under the third prong of the McVey test, Ridpath must demonstrate

a causal relationship between his protected speech and the termination

of his teaching duties. See McVey, 157 F.3d at 277-78. The causation

requirement is "rigorous" in that the protected expression must have

been the "but for" cause of the adverse employment action alleged.

Huang v. Bd. of Governors, 902 F.2d 1134, 1140 (4th Cir. 1990). As

explained below, Ridpath’s Amended Complaint has sufficiently

alleged causation.

The Amended Complaint alleges that during related internal griev-

ance proceedings, a University official "testified, under oath, that Dr.

Ridpath’s adjunct faculty position was terminated, in whole or in part,

for his speaking out against [the University’s] conduct during the

NCAA infractions process." Amended Complaint at ¶ 61. It further

alleges that Ridpath was relieved of his teaching position "in direct

. . . retaliation for having exercised his First Amendment right to peti-

tion the government for redress of grievance by retaining counsel and

filing a civil action in response to . . . constitutional violations." Id.

at ¶ 62. Thus, the Amended Complaint alleges that Ridpath’s pro-

tected speech was the "but for" cause of the termination of his teach-

ing duties, satisfying the causation requirement embodied in the third

prong of the McVey test. Having met each prong of the McVey test

RIDPATH v. BOARD OF GOVERNORS 33

at this stage, Ridpath has sufficiently alleged a First Amendment

retaliation claim.

b.

We turn next to the second of Ridpath’s free speech claims, the

chilling claim. Under our precedent, "a public employer is prohibited

from threatening to discharge a public employee in an effort to chill

that employee’s rights under the First Amendment." Edwards v. City

of Goldsboro, 178 F.3d 231, 246 (4th Cir. 1999).30 A chilling claim

is essentially the derivative of a retaliation claim: if a public employer

cannot fire, demote, or similarly punish a public employee for engag-

ing in protected speech, the employer also cannot intimidate the

employee into silence by threatening impermissible retribution.

According to the Amended Complaint, each of the Administrators

warned that if Ridpath commented publicly on the NCAA investiga-

tion, he would face professional, as well as personal, repercussions.

On November 1, 2001, Cottrill told Ridpath "[y]ou . . . have no say

in the matter. You need to think about your family young man."

Amended Complaint at ¶ 57(a). Grose then advised him: "I am telling

you. You do anything to resurrect this [NCAA Infractions issues] and

I will bury you personally and professionally." Id. (alteration in origi-

nal). Later, Angel asserted at a meeting of University officials that if

Ridpath commented on the "cheap shots" taken at him in the NCAA

Infractions Report, Angel "would cut the dead limb from the tree." Id.

at ¶ 57(b). Angel even elaborated on the point, asserting that he had

handled similar situations before and would have "no problem firing

[Ridpath] on the spot" if he commented on the investigation. Id.

(alteration in original).31

30

As the Supreme Court has explained, "the threat of dismissal from

public employment is . . . a potent means of inhibiting speech." Pickering

v. Bd. of Educ., 391 U.S. 563, 574 (1968).

31

On the face of the Amended Complaint, it is unclear whether Ridpath

was at the meeting when Angel threatened to "fire [Ridpath] on the spot"

and, if not, when and how he later learned of Angel’s remarks. Reading

the Amended Complaint in the proper light, however, we should infer

that, if Ridpath was not present at the meeting, he was made aware of

Angel’s threats shortly thereafter.

34 RIDPATH v. BOARD OF GOVERNORS

Because the prohibition against the chilling of free speech derives

from the prohibition against retaliation, we must utilize a McVey-type

analysis to determine whether the speech at issue in the chilling claim

is entitled to First Amendment protection. See Edwards, 178 F.3d at

245-49 (inquiring in single McVey-type analysis whether speech was

protected for both retaliation and chilling claims). As discussed previ-

ously, the NCAA rules violations against the University, the Universi-

ty’s response to the violations, and the University’s treatment of

Ridpath were matters of public concern. See McVey, 157 F.3d at 277

(requiring employee’s speech to be on matter of public concern). Fur-

thermore, the Administrators have, again, not asserted why — or even

that — they feared the University’s efficient operation might be

harmed if Ridpath, who was no longer the Compliance Director,

spoke publicly. See id. at 278 ("[W]e must take into account the con-

text of the employee’s speech including the employee’s role in the

institution and the extent to which it disrupts the operation and mis-

sion of the agency"). Accordingly, the speech at issue in the chilling

claim is protected by the First Amendment.

Reading the statements attributed to the Administrators in the

proper light, each of them was seeking to use his position at the Uni-

versity to intimidate Ridpath into silence. Under Edwards, the

Administrators’ misuse of the power vested in them by the University

contravened Ridpath’s free speech rights. Accordingly, Ridpath has

alleged facts sufficient to support his chilling claim. As a result, each

of Ridpath’s free speech claims sufficiently states the violation of a

First Amendment right, and each claim thus survives the first prong

of the qualified immunity test.

2.

Under the second prong of the qualified immunity test, we assess

whether the free speech claims would contravene clearly established

rights of which a reasonable person would have known. See Mellen

v. Bunting, 327 F.3d 355, 365 (4th Cir. 2003). We apply this test to,

first of all, Ridpath’s retaliation claim and, secondly, to his chilling

claim.

a.

The Administrators contend that Ridpath’s retaliation claim is not

based on a clearly established First Amendment right. We are con-

RIDPATH v. BOARD OF GOVERNORS 35

strained to disagree. According to the Amended Complaint, Ridpath

was relieved of his adjunct teaching position on July 14, 2003. See

Amended Complaint at ¶ 59. At that time a long line of decisions,

both the Supreme Court’s and our own, established that a public

employee could not be fired solely for making protected statements.

See, e.g., Rankin v. McPherson, 483 U.S. 378, 383 (1987) ("It is

clearly established that a State may not discharge an employee on a

basis that infringes that employee’s constitutionally protected interest

in freedom of speech."); Connick v. Myers, 461 U.S. 138, 142 (1983)

("For at least 15 years it has been settled that a State cannot condition

public employment on a basis that infringes the employee’s constitu-

tionally protected interest in freedom of expression."); McVey v.

Stacy, 157 F. 3d 271, 277 (4th Cir. 1998) ("The First Amendment

protects public employees from termination of their employment in

retaliation for their exercise of speech on matters of public concern.").

Furthermore, by the time Ridpath was relieved of his teaching posi-

tion at the University, we had been applying the "McVey test" to such

retaliation claims for more than a decade. See, e.g., McVey, 157 F.3d

at 277-78; Stroman v. Colleton County Sch. Dist., 981 F.2d 152, 156

(4th Cir. 1992). Thus, the prohibition against retaliation for protected

speech was clearly established at the time Ridpath was relieved of his

teaching position.

Our inquiry on this issue does not end here, however, because we

must also examine whether reasonable persons would have been

aware that relieving Ridpath of his adjunct teaching position for his

remarks violated his constitutionally protected free speech rights. In

making such a determination, we have aptly observed that "[o]fficials

are not liable for bad guesses in gray areas; they are liable for trans-

gressing bright lines." McVey, 157 F.3d at 277 (internal quotation

marks omitted). And because of the "sophisticated balancing"

involved in First Amendment questions, "only infrequently will it be

clearly established that a public employee’s speech on a matter of

public concern is constitutionally protected." Id. (internal quotation

marks omitted). Still, public employers enjoy only qualified — not

absolute — immunity, and a public employer can find no refuge in

qualified immunity when an adverse employment decision clearly

contravenes a public employee’s First Amendment rights.

36 RIDPATH v. BOARD OF GOVERNORS

While further factual development in this case may present a

murky picture of why Ridpath was relieved of his teaching position,

the content and context of his statements, and any negative impact his

remarks had on the efficiency of his workplace, the scene painted by

the Amended Complaint is crystal clear. Read in the proper light, it

alleges that the Administrators retaliated against Ridpath for making

protected statements that they did not like. Such activity does not

merely implicate the gray edges of the right Ridpath asserts; it goes

to its very core. And taking the allegations of the Amended Complaint

as true, a clearer violation of constitutionally protected free speech

would be difficult to fathom. Therefore, Ridpath’s retaliation claim

alleges a violation of clearly established law of which a reasonable

person would have known.32

b.

The Administrators similarly assert that Ridpath’s chilling claim is

not based on a clearly established First Amendment right. As previ-

ously discussed, comments by Ridpath concerning the NCAA rules

violations, the University’s response to those violations, or the Uni-

versity’s treatment of Ridpath would be clearly protected. In Edwards

v. City of Goldsboro, decided by us more than two years prior to the

events alleged in the Amended Complaint, we held that, under the

applicable legal principles, "a public employer is prohibited from

threatening to discharge a public employee in an effort to chill that

employee’s rights under the First Amendment." 178 F.3d 231, 246

(4th Cir. 1999). Given this precedent, we are obliged to conclude that

the Administrators’ threats violated clearly established law of which

reasonable persons would have known. Accordingly, the Administra-

32

The Administrators assert on appeal that Ridpath’s position was

eliminated, and that "no reasonable official would have known that, by

canceling a class because of budgetary concerns, he or she would be

exposed to a First Amendment claim by an adjunct faculty professor."

See Reply Br. of Appellants at 28-29. However, the Amended Complaint

alleges that Ridpath was relieved of his teaching position at the Univer-

sity in retaliation for protected speech, see Amended Complaint at ¶¶ 61-

62, and we cannot, under controlling Rule 12(b)(6) principles, accept the

Administrators’ contrary factual assertion.

RIDPATH v. BOARD OF GOVERNORS 37

tors are not entitled to qualified immunity on Ridpath’s free speech

claims at this stage in the proceedings.33

IV.

Pursuant to the foregoing, we dismiss the appeal of Coach Pruett

and affirm the denial of qualified immunity to the Board and the

Administrators.

DISMISSED IN PART AND AFFIRMED IN PART

WIDENER, Circuit Judge, concurring and dissenting:

As to Count I of the complaint, I respectfully dissent. As to Count

II, I concur in the result. I concur in the dismissal of the appeal of

Coach Pruett.

I respectfully dissent on account of the failure of the district court,

and the majority in our case, to grant qualified immunity to the

administrators at Marshall University with respect to the defamation

count, Count I of the complaint.

The § 1983 claims are based on two incidents. The first is the

NCAA infraction report of December 21, 2001, an advance copy of

which had been supplied to the University sometime previously. That

report described, at the instance of the University, the "transfer

[. . . of] the compliance director from athletics to another department

at the university" as a "corrective action [. . .]"

The plaintiff claims such use, by the University, of the term "cor-

rective action" is defamatory and has damaged his reputation so that

his opportunities for employment within his chosen profession, col-

lege athletics, have been, or will be, damaged.

33

Finally, the Appellants contend that Ridpath’s free speech claims

should be dismissed because he has not exhausted his state administra-

tive remedies. However, as the Appellants only appealed qualified

immunity rulings, we have no jurisdiction to review their administrative-

exhaustion contention.

38 RIDPATH v. BOARD OF GOVERNORS

In the first incident, based on defamation, the record does not dis-

close the words which were used by the University in reporting to the

NCAA Dr. Ridpath’s transfer as a corrective action. Neither does it

show whether that communication was oral or written.

I assume for the moment, for argument, that labeling Dr. Ridpath’s

transfer from the athletic department to be the Director of Judicial

Programs could be defamatory when described as a corrective action,

but that does not end the inquiry. Damage to Dr. Ridpath’s reputation,

which is the root cause of this law suit, is not actionable under § 1983.

The district court, in its opinion, described Dr. Ridpath’s claim:

Ridpath, on the other hand, contends that he has not alleged

that he had a property interest in his employment at MU.

Instead, he asserts that the ‘corrective action’ label assigned

to his transfer to the position of Director of Judicial pro-

grams at MU without due process has destroyed his reputa-

tion in the field of collegiate athletics because that label is

generally understood by those connected to college athletics

to be a code term importing dishonesty and incompetence

on the part of individuals to whom it is alleged. J.A. 242.

(Italics added.)

In my opinion, this case is controlled by Siegert v. Gilley, 500 U.S.

226 (1991). In that case, St. Elizabeths Hospital, a facility of the

United States, notified Siegert, a clinical psychologist, that it was pre-

paring to terminate his employment, giving as the reason that his

"‘proposed removal was based upon his inability to report for duty in

a dependable and reliable manner, his failure to comply with supervi-

sory directives, and cumulative charges of absence without approved

leave.’ . . . After meeting with hospital officials, Siegert agreed to

resign from the hospital and thereby avoid a termination that might

damage his reputation." 500 U.S. at 228. Siegert then began work as

a clinical psychologist in a United States Army hospital in Bremerha-

ven, West Germany. At that Army hospital, he signed a credential

information request form, asking that St. Elizabeths provide all infor-

mation on job performance and privileges while at St. Elizabeths. Sie-

gert’s request was referred to Gilley, who had been Siegert’s

supervisor at St. Elizabeths. Gilley notified the Army that

RIDPATH v. BOARD OF GOVERNORS 39

"he could not recommend [Siegert] for privileges as a psy-

chologist." . . . In that letter, Gilley wrote that he "consid-

ered Dr. Siegert to be both inept and unethical, perhaps the

least trustworthy individual I have supervised in my thirteen

years at [St. Elizabeths]." 500 U.S. at 228.

After receiving Gilley’s letter, the Army told Siegert that because

reports about him were extremely unfavorable, its Credential Com-

mittee was recommending that he not be credentialed. He later was

given provisional credentials limited to his work with adults. Siegert’s

suit against Gilley followed. Siegert contended that "the loss of his

position at the Bremerhaven Hospital, followed by the refusal of the

Army hospital in Stuttgart to consider his application for employment,

and his general inability to find comparable work because of Gilley’s

letter, constituted such a deprivation [of a ‘liberty interest’ secured by

the Fifth Amendment to the United States Constitution]." 500 U.S. at

232.

The Court decided that injury to reputation is not an interest pro-

tected under the Constitution. "Defamation, by itself, is a tort action-

able under the laws of most States, but not a Constitutional

deprivation." 500 U.S. at 233. The Court reasoned that

The statements contained in the letter would undoubtedly

damage the reputation of one in his position, and impair his

future employment prospects. . . . But so long as such dam-

age flows from injury caused by the defendant to a plain-

tiff’s reputation, it may be recoverable under state tort law

but it is not recoverable in a Bivens action. 500 U.S. at 234.

The court affirmed the dismissal of Siegert’s Bivens claim, and its

holding was explicit and free from doubt:

We hold that the petitioner in this case [Siegert] failed to

satisfy the first inquiry in the examination of such a claim;

he failed to allege the violation of a clearly established con-

stitutional right. 500 U.S. at 231.

And the Court noted, at 229 and 234, that Siegert did not make a

claim of diverse citizenship to prosecute a claim for defamation. We

40 RIDPATH v. BOARD OF GOVERNORS

note that Dr. Ridpath has made no state law claim for defamation

here. If Dr. Ridpath had wished to bring a defamation suit for slander

or libel in a court of appropriate jurisdiction, he might have done so,

but that is not a question before us.

I note that, in DiMeglio v. Haines, 45 F.3d 790 (4th Cir. 1995), a

§ 1983 case as here, we followed Siegert and held "[i]n deciding qual-

ified immunity claims, courts should determine whether the plaintiff

has alleged the violation of a constitutional right that was clearly

established at the time of the defendant’s actions, before they proceed

to address any ancillary issues." 45 F.3d at 797.

In my opinion, the facts in the Siegert case and the facts in the

present case are so nearly the same that Siegert must control. The

defamatory language in Siegert is equally as defamatory as that

claimed here; the claims of Siegert and Dr. Ridpath are each based on

due process, whether under the Fifth Amendment or the Fourteenth,

is a matter of indifference; and both Siegert and Dr. Ridpath claim

that resulting damage is because of injury to reputation, which the

Court held not actionable under Siegert as a Constitutional depriva-

tion. 500 U.S. at 233.

No violation of a Constitutional right having been established,

qualified immunity should have been granted as to the defamation

claim. Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir. 1991); Kitchen

v. Upshaw, 286 F.3d 179, 189 (4th Cir. 2002); DiMeglio, 45 F.3d at

808.

As for the second incident, Count II of the complaint, based on free

speech, I concur in the result on the basis of our decision in McVey

v. Stacy, 157 F.3d 271 (4th Cir. 1998). In McVey, the district court

had declined to dismiss the First Amendment claim, as here, and it

rejected qualified immunity "at this stage in the litigation" because

"the record had not been developed." McVey, 157 F.3d at 275. Our

decision was to "affirm the district court’s ruling to defer deciding on

the qualified immunity issue until the record is better developed on

the immunity issues." McVey, 157 F.3d at 279. I continue to disagree

with the majority that the complaint alone justifies a finding that Rid-

path spoke as a citizen rather than as an employee, largely because he

had been instructed by his superiors not to speak out publicly. See

RIDPATH v. BOARD OF GOVERNORS 41

Connick v. Myers, 461 U.S. 138, esp. p.147, (1983) (deciding for the

State, the Court found, at p.150, "The Pickering balance requires full

consideration of the government’s interest in the effective and effi-

cient fulfillment of its responsibilities to the public."); and DiMeglio

v. Haines, 45 F.3d 790 (4th Cir. 1995) (holding a municipal govern-

ment employee’s remarks may not be protected under Connick if he

was speaking as an employee, rather than as a citizen). Nevertheless,

I believe a concurrence in the result is more in order than a dissent

in view of the majority’s decision that the matter is not closed. See

footnote 23, supra. So any present error on this account is harmless.