                                      PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-1847


THOMAS M. CANNON; JESSE M. CONNER; DONALD M. KOONS;
NICHOLAS M. TERRELL,

                    Plaintiffs – Appellees,

             v.

VILLAGE OF BALD HEAD ISLAND, NORTH CAROLINA; CALVIN R.
PECK, JR., in his individual capacity; CAROLINE MITCHELL, in her individual
capacity,
                    Defendants – Appellants.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Malcolm J. Howard, Senior District Judge. (7:15-cv-00187-H)


Argued: February 28, 2018                                         Decided: May 30, 2018


Before DUNCAN, AGEE, and WYNN, Circuit Judges.


Dismissed in part, affirmed in part, and reversed and remanded in part by published
opinion. Judge Wynn wrote the opinion, in which Judge Duncan and Judge Agee joined.


ARGUED:        Norwood Pitt Blanchard, III, CROSSLEY MCINTOSH COLLIER
HANLEY & EDES PLLC, Wilmington, North Carolina, for Appellants. Bradley
Andrew Coxe, HODGES COXE POTTER & PHILLIPS, LLP, Wilmington, North
Carolina, for Appellees. ON BRIEF: Samuel B. Potter, HODGES COXE POTTER &
PHILLIPS, LLP, Wilmington, North Carolina, for Appellees.
WYNN, Circuit Judge:

       In August 2014, the Village of Bald Head Island, N.C. (“Bald Head”), fired

Plaintiffs Thomas Cannon, Jesse Conner, Donald Koons, and Nicholas Terrell

(collectively, the “Officers”)—who worked for Bald Head’s Department of Public Safety

(the “Department”)—for the content of messages the Officers sent in a private text-

message chain. Approximately one year later, the Officers filed suit against Bald Head,

its town manager Calvin Peck (“Peck”), and its director of public safety Dr. Caroline

Mitchell (“Mitchell,” and collectively with Bald Head and Peck, “Defendants”), asserting

that the terminations violated their First Amendment rights, and that subsequent public

disclosures by Bald Head explaining the bases for the terminations constituted

defamation and violated the Officers’ Fourteenth Amendment rights to procedural due

process. After the parties completed discovery, Peck and Mitchell, who were responsible

for the firings and subsequent disclosures, unsuccessfully moved to dismiss the Officers’

constitutional claims on the basis of qualified immunity.

       For the reasons that follow, we affirm the district court’s denial of qualified

immunity regarding the alleged due process violations. However, we conclude that the

district court erred in holding that Peck and Mitchell were not entitled to qualified

immunity as to the Officers’ First Amendment retaliation claims. In particular, the

Officers’ evidence does not establish beyond debate that the Officers’ interest in speaking

freely outweighed the Department’s interest in maintaining order and discipline.

Accordingly, we affirm in part, reverse in part, and remand the case to the district court

for further proceedings consistent with this opinion.


                                             2
                                              I.

                                            A.

       The Department combines Bald Head’s firefighting, paramedic, and police

departments in a single multi-disciplinary group of emergency personnel. From July 25

to August 15, 2014, the Officers engaged in a group text-message chain with several

other members of the Department. The group text messages discussed a wide variety of

topics. A number of messages concerned a local news article, which was published on

August 6, in which Mitchell reportedly said that all but two officers in the Department

were certified to perform the four emergency services for which the Department is

responsible: firefighting, emergency medicine, water rescue, and law enforcement. Many

of the Officers questioned the veracity of that claim, identifying a number of Department

employees who lacked one or more of the certifications. And several messages expressed

concern that the Department was providing inadequate training to public safety officers.

See J.A. 322 (Officer Conner expressing concern that staff is not “doing first in engine

drills”); id. (Officer Terrell expressing concern that Department official responsible for

training only sends officers to law enforcement training, not the training required for the

other services provided by the Department).

       Messages in the chain also questioned certain officers’ competence to perform

various emergency services. For example, Officer Conner expressed concern about the

Department’s lack of “worr[y] that people who claim to be ems can’t take a blood

pressure” or that employees engaged in firefighting “have no real fire experience” and

had not attended “a controlled training burn.”        Id.   In addition to the messages


                                              3
questioning Mitchell’s representations regarding the Department’s training, several other

messages questioned the Department’s leadership.           For example, Officer Terrell

questioned the decision to promote another officer, Robin Wallace, to lieutenant,

suggesting that Wallace lacked the ability to form a “plan of attack” to respond to a fire,

medical emergency, or water rescue call. J.A. 342.

       A number of the text messages also discussed non-safety-related topics, including

workout tips, sexual gibes, and former coworkers.         Several messages joked about

hypothetical situations in “Colorado,” which referred to Mitchell, who previously lived in

Colorado. J.A. 324–25. And one message, which was sent by an officer who is not a

party to this action, included an image of a police officer with the meme: “Who am I?

I’m the dude, playing a dude, disguised as another dude”—a reference to the movie

Tropic Thunder. J.A. 340. That message elicited no response from anyone else on the

text-message chain.

       Mitchell learned of the text-message chain during a meeting with another public

safety officer, Nick Hiatt (“Hiatt”), who also participated in the chain. There is a dispute

of fact as to why Hiatt disclosed the text-message chain to Mitchell. According to

Mitchell, Hiatt showed her the text messages while lodging a complaint that the Officers

were acting unprofessionally and engaging in “harass[ment].” J.A. 209–10. By contrast,

Hiatt averred that he “never made a complaint about the text messages,” J.A. 307, and

that he “did not indicate to . . . Mitchell that [he] was offended, sexually harassed, [or]

upset, or that [he] felt that the work environment was hostile or offensive,” J.A. 304.

Rather, Hiatt further averred that he showed Mitchell the text messages in order to


                                             4
demonstrate that “management and the rank and file employees and public safety officers

did not have a good relationship; did not have good communication; did not have clear

understandings of job duties and responsibilities; did not all have proper training; and

[that he thought] this affected the public’s safety.” J.A. 303.

       After obtaining a copy of the text-message chain, Mitchell consulted other

members of the Department’s command staff. Several members of the command staff

expressed concern that certain messages in the chain seemed to derogatorily joke about

Mitchell’s sexual orientation, most notably the Tropic Thunder message. After receiving

the command staff’s input, Mitchell showed Peck the text-message chain and

recommended terminating the Officers and one of their coworkers.

       Peck agreed with Mitchell’s recommendation to terminate the officers, largely

because Peck “felt that the [text-message] conversation displayed a clear tone of hostility

and insubordination towards . . . Mitchell and the other members of the command staff.”

J.A. 61; see also J.A. 164 (“[The Officers] were terminated because they were jerks. . . .

[T]hey were disrespectful . . . of the chain of command.”). Mitchell testified that she

recommended terminating the Officers solely because she did not “want [the Officers] to

be part of our [Department’s] team.” J.A. 220. She further testified that she did not

make any other specific recommendation as to why the Officers should be fired.

       After Peck and Mitchell decided to terminate the Officers, Bald Head’s human

resources director, Karen Williams, provided Peck and Mitchell with potentially relevant

sections of Bald Head’s personnel policy. Williams testified that Peck and Mitchell then

“picked which [provisions in the personnel policy] applied to which officers.” J.A. 403.


                                              5
After Peck and Mitchell “[c]onveyed those [choices] to [Williams], [Williams] drafted

the [termination] letters based on [Peck and Mitchell’s] direction.” Id.

       On August 28, 2014, Peck, Mitchell, and another member of the Department’s

command staff met with Officers Conner, Koons, and Terrell, and informed each Officer

that he had been terminated by an immediate, final decision for participating in the text-

message chain. Officer Cannon was unable to attend an in-person meeting, and therefore

was fired by phone instead.

       During the meetings, the Department provided each Officer with a termination

letter listing various Bald Head policy violations.     Each officer was terminated for

“discourteous   treatment     of   other   employees”    and     “inappropriate   electronic

communications.”     J.A. 147–50.      Officers Cannon, Koons, and Terrell also were

terminated for “harassment.” J.A. 147, 149, 150. And Officers Koons and Terrell were

terminated for “sexual harassment” as well.       J.A. 149–50.     Each letter additionally

indicated that the Officers’ actions qualified as “detrimental personal conduct,” which “is

. . . grounds for immediate termination” under Bald Head policy. J.A. 147–50. The day

after the Officers’ termination, local media requested copies of the letters, which

Williams turned over because she believed doing so was necessary to comply with North

Carolina’s Public Records Act.

       Several hours after the Officers’ termination, Peck sent an email to all of Bald

Head’s full-time employees and all of the Department’s part-time employees, which

stated that “five officers have been released from employment . . . based on violations of

[Bald Head’s] policies pertaining to harassment, sexual harassment, discourteous conduct


                                             6
and inappropriate electronic communications.” J.A. 451. The email did not differentiate

between each Officer’s alleged policy violations. Additionally, Peck included the full

text of Bald Head’s policy regarding “[d]etrimental personal conduct”—one of the

violations listed in all the Officers’ termination letters—which is defined as “behavior of

such a serious detrimental nature that the functioning of [Bald Head] may be or has been

impaired; the safety of persons or property may be or have been threatened; or the laws of

any government may be or have been violated.” Id.

       The next day, August 29, 2014, Mitchell filled out an affidavit of separation, or

“Form F-5B,” regarding each Officer’s termination and, as required by law, submitted

them to the North Carolina Criminal Justice Education and Training Standards

Commission. Notwithstanding that the termination letters offered different grounds for

terminating several of the Officers, on each Officer’s Form F-5B Mitchell provided the

same reason for termination: that “[a] complaint was filed with this agency . . . involving

inappropriate electronic communications that created a hostile work environment in

violation of [Bald Head] policy.” J.A. 268–75.

       That same day, Officers Conner, Koons, and Terrell each sent a grievance letter to

Peck, stating that “the grounds for which I was terminated were unfair and . . . my job

performance and personal conduct were not accurately represented.” J.A. 278–80. Peck

responded that “[t]here is no right to a grievance or appeal process.” J.A. 300–02.




                                            7
                                           B.

       Approximately one year after the firings, on August 26, 2015, the Officers filed

the instant suit alleging, among several other claims, that Defendants violated (1) the

First Amendment, by firing the Officers for engaging in speech on matters of public

concern; (2) the Fourteenth Amendment, by failing to afford the Officers due process

before publicly disclosing information that placed a stigma on their reputations, and (3)

state law, by defaming the Officers.

       On October 7, 2016, Peck and Mitchell moved for summary judgment, arguing

that qualified immunity barred the Officers’ First Amendment retaliation and Fourteenth

Amendment due process claims. Defendants also moved for summary judgment on the

Officers’ defamation claims, on grounds that the Officers’ evidence failed to create a

triable issue of fact as to whether Defendants acted with actual malice in disclosing

information regarding the Officers’ termination. Peck and Mitchell also subsequently

argued that their recent offer to conduct a name-clearing hearing mooted the officers’

request for injunctive relief.

       In an opinion and order entered June 22, 2017, the district court granted summary

judgment to Defendants on Officer Cannon’s First Amendment retaliation claim, but held

that qualified immunity did not bar the remaining First and Fourteenth Amendment

claims. Cannon v. Vill. of Bald Head Island, N.C., No. 7:15-CV-187, 2017 WL 2712958,

at *20 (E.D.N.C. June 22, 2017). The district court also declined to dismiss the Officers’

defamation claims and request for injunctive relief. Id. Defendants timely appealed

those decisions.


                                            8
                                             II.

       On appeal, Defendants assert that the district court erred in (A) denying Peck and

Mitchell qualified immunity on the Officers’ First Amendment retaliation claims; (B)

denying Peck and Mitchell qualified immunity on the Officers’ Fourteenth Amendment

claims; (C) denying Defendants’ summary judgment motion as to the Officers’

defamation claims; and (D) refusing to dismiss as moot the Officers’ request for

injunctive relief regarding their Fourteenth Amendment claims. Given that this appeal

arises from the district court’s denial of summary judgment, we review each issue de

novo, viewing all facts and reasonable inferences therefrom in favor of the Officers, as

the non-moving party. Hunter v. Town of Mocksville, N.C., 789 F.3d 389, 395–96 (4th

Cir. 2015).

       As noted above, Defendants’ first two arguments require this Court to determine

whether Peck and Mitchell are entitled to qualified immunity. “[Q]ualified immunity

protects government officials ‘from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).           To overcome qualified

immunity, a plaintiff must show “(1) that the official violated a statutory or constitutional

right, and (2) that the right was ‘clearly established’ at the time of the challenged

conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

       For a right to be clearly established, there need not be “a case directly on point, but

existing precedent must have placed the statutory or constitutional question beyond


                                              9
debate.” Id. at 741. Put differently, “a constitutional right is clearly established when ‘its

contours [are] sufficiently clear that a reasonable official would understand that what he

is doing violates that right.’” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292,

313 (4th Cir. 2006) (alteration in original) (quoting Hope v. Pelzer, 536 U.S. 730, 739

(2002)).

                                             A.

       Defendants first argue that the district court erred in denying Peck and Mitchell

qualified immunity from the Officers’ First Amendment retaliation claim.                   As

government employees, the Officers did “not relinquish all First Amendment rights

otherwise enjoyed by citizens just by reason of [their] employment.” City of San Diego

v. Roe, 543 U.S. 77, 80 (2004) (per curiam). That being said, “a governmental employer

may impose certain restraints on the speech of its employees, restraints that would be

unconstitutional if applied to the general public.” Id.

       When, as here, a government employee claims that he was terminated “because of

his speech, we use a three-prong test to determine if the employee’s rights under the First

Amendment were violated.” Crouse v. Town of Moncks Corner, 848 F.3d 576, 583 (4th

Cir. 2017), cert. denied, 138 S. Ct. 470 (2017). In particular, we must determine: “(1)

whether the public employee was speaking as a citizen upon a matter of public concern or

as an employee about a matter of personal interest; (2) whether the employee’s interest in

speaking upon the matter of public concern outweighed the government’s interest in

providing effective and efficient services to the public; and (3) whether the employee’s

speech was a substantial factor in the employee’s termination decision.” McVey v. Stacy,


                                             10
157 F.3d 271, 277–78 (4th Cir. 1998). “Because the first two prongs of the test are

questions of law, an employer is entitled to qualified immunity if either prong cannot be

resolved under clearly established law.” Crouse, 848 F.3d at 583.

      Peck and Mitchell do not dispute that the Officers’ speech was a “substantial

factor” in their termination. Rather, Peck and Mitchell argue that at the time of the

Officers’ termination, it was not clearly established that the statements in the Officers’

text-message chain amounted to speech on a “matter of public concern,” and, even if the

text-message chain included speech on a matter of public concern, it was not clearly

established that the Officers’ interest in engaging in such speech outweighed Defendants’

countervailing interest in order and discipline.     Because ultimately we agree with

Defendants’ latter argument, we assume without deciding that the Officers’ speech

addressed matters of public concern.

      In addressing Defendants’ latter argument, we must determine whether it was

clearly established that the Officers’ interest in First Amendment expression outweighed

Defendants’ interest in maintaining order and discipline within the Department. See

Pickering v. Bd. of Educ. of Twp. High School Dist. 205, 391 U.S. 563, 568 (1968)

(holding that in First Amendment retaliatory discharge case, a court must balance “the

interests of the [public employee], as a citizen, in commenting on matters of public




                                           11
concern and the interest of the State, as an employer, in promoting the efficiency of the

public services it performs through its employees”). 1

       In analyzing that question, “‘we must take into account the context of the

employee’s speech’ and ‘the extent to which it disrupts the [Department’s] operation and

mission.’” Ridpath, 447 F.3d at 317 (quoting McVey, 157 F.3d at 278). To guide our

inquiry, we have identified the following relevant factors:

       whether a public employee’s speech (1) impaired the maintenance 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 institution; (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. (citing McVey, 157 F.3d at 278); see also id. at 317 n.28 (noting that another relevant

factor may be “the value of the employee’s speech to the public”).

       As the multi-factorial test suggests, we have recognized that Pickering’s

“particularized balancing . . . is subtle [and] difficult to apply.” Cromer v. Brown, 88

F.3d 1315, 1326 (4th Cir. 1996) (internal quotation marks omitted). “[B]ecause 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.’” Ridpath, 447 F.3d at 320 (quoting McVey, 157 F.3d at 277).


       1
        Because we conclude it was not clearly established that the Officers’ interest in
speaking outweighed the Defendants’ interests in maintaining discipline, we need not—
and thus do not—address whether the Pickering balancing favored the Officers.



                                            12
That said, on several occasions we have concluded the interests weighed so heavily in a

discharged employee’s favor that the employee’s right to speak on a matter of public

concern was clearly established at the time of his termination. See id. at 320–21; Cromer,

88 F.3d at 1327.

       Acknowledging that the fact-specific nature of the Pickering inquiry often leads

courts to conclude that a defendant is entitled to qualified immunity from a First

Amendment retaliation claim, the district court nonetheless held that this Court’s

opinions in Cromer and Ridpath clearly established that the balance of interests weighed

in the Officers’ favor. Cannon, 2017 WL 2712958, at *15–16. Cromer involved a police

department that demoted, and later terminated, a black police officer after the officer

signed on to an anonymous letter alleging, among other claims, that the department

leadership displayed “a High level of insensitivity toward Black officers,” followed

“certain unwritten policies in the department [that] were inhibit[ing] the advancement of

Black officers,” and otherwise subjected black officers to unequal treatment, thereby

posing a risk to public safety. 88 F.3d at 1320 (second alteration in original) (internal

quotation marks omitted). This Court concluded that the officer’s interest in raising

concerns about discrimination within the department “merged” with the public’s

“substantial” interests in having a police force free of broad-based discrimination, and

therefore “weigh[ed] heavily” in the officer’s favor. Id. at 1327. By contrast, we held

that, under the facts of the case, the police department’s asserted interests in “discipline,

morale and good working relationships” warranted “little or no” weight. Id. at 1329. In

finding that those interests warranted little to no weight, we emphasized that “[t]he letter


                                             13
was not insubordinate or rebellious in tone, and there was no public display of

disobedience or protest,” and that the letter had little impact on office morale, which “was

already low.” Id. at 1328.

       There are several material differences between the instant case and Cromer that

preclude Cromer from clearly establishing that the balance of interests weighs in the

Officers’ favor here. To begin, unlike the letter at issue in Cromer—which both aspired

to bring to the police department’s leadership concerns about discriminatory treatment

and made specific suggestions about how the department could improve its treatment of

black officers, see id. at 1320–21—the Officers here did not voice their concerns to

Department leadership, nor did the text messages seek to effect change in the Department

or otherwise rectify the safety deficiencies. Additionally, unlike the letter at issue in

Cromer, the text-message chain included messages that arguably were “insubordinate or

rebellious.” Id. at 1328. In particular, the text-message chain included messages that

suggested an officer had been promoted in return for providing sexual favors, messages

that questioned Mitchell’s truthfulness and leadership, and messages that questioned the

competency of a recently promoted co-worker. Cannon, 2017 WL 2712958, at *2–5.

Several Officers replied favorably to these messages. And another message in the chain,

which was not sent by a Plaintiff, also joked about Mitchell’s sexual orientation. Id. at

*5. This Court previously has recognized that, even when, as here, employee speech

serves a “limited first amendment interest,” public employers need not “tolerate

associated behavior that they reasonably believed was disruptive and insubordinate.”

Dwyer v. Smith, 867 F.2d 184, 194 (4th Cir. 1989). These differences have a sufficiently


                                            14
significant impact on the balancing equation such that we cannot say that Cromer clearly

established that the balance of interests weighed in the Officers’ favor.

       Ridpath, which addressed qualified immunity in the context of a motion to

dismiss, is even more factually and legally dissimilar. There, a public university relieved

its athletics compliance director of teaching duties, allegedly because, during a National

Collegiate Athletics Association (“NCAA”) investigation, the compliance director

brought to light violations of NCAA rules by the university and questioned the

university’s handling of those violations. Ridpath, 447 F.3d at 317. We concluded that

“NCAA rules violations by a prominent sports program at a major public university, and

the nature of the university’s handling of such allegations, are matters of great social,

political, or other interest to a community.” Id. (internal quotation marks omitted).

Furthermore, we emphasized that nothing in the complaint indicated that the compliance

director’s “comments impaired the maintenance of discipline, hurt workplace morale, or

constituted an abuse of his position.” Id. at 318. Accordingly, we concluded that the

compliance director’s “allegations warrant the inference that his free speech interests

outweigh the detrimental effect.” Id.

       For several reasons, Ridpath did not clearly establish that the Pickering balancing

weighs in the Officers’ favor here. First, Ridpath involved a motion to dismiss, not a

motion for summary judgment. Accordingly, Ridpath assessed the Pickering balancing

in absence of any evidence rebutting the alleged lack of impact on workplace discipline

and morale. Id. By contrast, evidence adduced during discovery in this case, such as the

text-message chain, which included messages that were arguably insubordinate and


                                             15
discriminatory, suggested that the messages adversely impacted discipline. See Cannon,

2017 WL 2712958, at *2–5; see also J.A. 303 (Hiatt averring that he showed the text-

message chain to Mitchell in part to demonstrate that “management and the rank and file

employees and public safety officers did not have a good relationship [and] did not have

good communication”). Additionally, whereas Ridpath involved a university employee,

the instant case involves public safety officers. This Court has recognized on several

occasions that “police officials are entitled to impose more restrictions on speech than

other public employers because a police force is ‘“paramilitary”—discipline is

demanded, and freedom must be correspondingly denied.’” Brickey v. Hall, 828 F.3d

298, 304 (4th Cir. 2016) (quoting Maciariello v. Sumner, 973 F.2d 295, 300 (4th Cir.

1992)). Taken together, these differences preclude Ridpath from constituting clearly

established law regarding the outcome of the particularized balancing that Pickering

demands under the facts of this case.

      Accordingly, neither Cromer nor Ridpath rendered it “beyond debate,” al-Kidd,

563 U.S. at 741, that the balance of interests weighs in the Officers’ favor here. We

therefore reverse the district court’s determination that Peck and Mitchell were not

shielded by qualified immunity from the Officers’ First Amendment retaliation claims.




                                          16
                                             B.

        We now turn to the district court’s denial of qualified immunity to Peck 2 regarding

the Officers’ due process claims, i.e., that Peck violated the Fourteenth Amendment by

failing to afford the Officers adequate process before publicly disclosing the reasons for

their discharge. Public employees, even when lawfully discharged, enjoy the “freedom to

take advantage of other employment opportunities.” Bd. of Regents of State Colls. v.

Roth, 408 U.S. 564, 573 (1972). This includes the right to be “free from arbitrary

restrictions upon the opportunity for other gainful employment stemming from the

reasons voluntarily given by government for lawfully terminating . . . at-will public

employment.” Johnson v. Morris, 903 F.2d 996, 999 (4th Cir. 1990) (alteration in

original) (quoting Boston v. Webb, 783 F.2d 1163, 1167 (4th Cir. 1986)). “‘[W]here a

person’s good name, reputation, honor, or integrity is at stake because of what the

government is doing to him,’” Sciolino v. City of Newport News, 480 F.3d 642, 646 (4th

Cir. 2007) (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)), the due

process requirements of “notice and opportunity to be heard are essential.”

Constantineau, 400 U.S. at 437. Accordingly, as to public employees, “a Fourteenth

Amendment ‘liberty interest is implicated by public announcement of reasons for an

employee’s discharge.’” Sciolino, 480 F.3d at 645–46 (quoting Johnson, 903 F.2d at

999).


        2
          Although Peck and Mitchell together argue they are entitled to qualified
immunity regarding the Officers’ due process claims, below Mitchell argued that she was
entitled to qualified immunity solely regarding the Officers’ First Amendment claims.
(Continued)

                                             17
       There are two components to a claim that a governmental employer violated a

former employee’s Fourteenth Amendment rights by publicly disclosing the reasons for

the employee’s discharge. See Segal v. City of N.Y., 459 F.3d 207, 213 (2d Cir. 2006).

First, the employee must establish that he has been deprived of a liberty interest, and does

so by demonstrating that the charges against him by his governmental employer: “(1)

placed a stigma on his reputation; (2) were made public by the employer; (3) were made

in conjunction with his termination or demotion; and (4) were false.” Sciolino, 480 F.3d

at 646 (citing Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 n.5 (4th Cir.

1988)).

       Second, the employee “must demonstrate that [his] liberty was deprived without

due process of law.” Segal, 459 F.3d at 213. To that end, the Supreme Court has

recognized that, when a governmental employer places an employee’s reputation “at

stake” by publicly disclosing defamatory charges, “notice and opportunity to be heard are

essential.” See Roth, 408 U.S. at 573 (quoting Constantineau, 400 U.S. at 437). Such a

hearing allows a former employee “to ‘clear [his] name’ against [the] unfounded




See Cannon et al. v. Vill. of Bald Head, 7:15-cv-00187-H, ECF No. 47, at 8–10. The
district court therefore only addressed Peck’s entitlement to qualified immunity regarding
the Officers’ due process claims. Cannon, 2017 WL 2712958, at *17, *19. For these
reasons, we decline to consider Mitchell’s qualified immunity arguments for the first time
on appeal, including those regarding the Forms F-5B she filled out and filed with the
North Carolina Criminal Justice Education and Training Standards Commission. See,
e.g., CoreTel Va., LLC v. Verizon Va., LLC, 808 F.3d 978, 988 (4th Cir. 2015) (“[I]f a
party wishes to preserve an argument for appeal, the party must press and not merely
intimate the argument during the proceedings before the district court.”).



                                            18
charges.” Johnson, 903 F.2d at 999 (quoting Boston, 783 F.2d at 1167). In the context of

a claim that a governmental defendant violated a former employee’s Fourteenth

Amendment rights by publicly disclosing the reasons for the employee’s discharge, as

here, this Court has held that this opportunity to be heard “must be granted at a

meaningful time.” Sciolino, 480 F.3d at 653 (quoting Armstrong v. Manzo, 380 U.S. 545,

552 (1965)). This is because, as we further held, “[a]n opportunity to clear your name

after it has been ruined by dissemination of false, stigmatizing charges is not

‘meaningful.’” Id. (emphasis added).

       With this legal framework in mind, we now must determine (1) whether, under

clearly established law, the Officers were deprived of a protected liberty interest and (2)

if so, whether, under clearly established law, the Officers were deprived of that interest

without due process of law.

                                             1.

       To determine whether the Department deprived the Officers of a protected liberty

interest, we first must determine whether the challenged disclosures “placed a stigma on

[the Officers’] reputation[s].” Id. at 646. For over thirty years, this Court has held that a

governmental disclosure places a stigma on a former employee sufficient to give rise to a

liberty interest claim if it “implies ‘the existence of serious character defects such as

dishonesty or immorality.’” Ridpath, 447 F.3d at 308 (quoting Robertson v. Rogers, 679

F.2d 1090, 1092 (4th Cir. 1982)); accord Cox v. N. Va. Transp. Comm’n, 551 F.2d 555,

558 (4th Cir. 1976).




                                             19
      Here, the Officers’ termination letters and the email to all Bald Head employees

regarding the Officers’ termination included allegations of “harassment,” “sexual

harassment,” and “detrimental personal conduct.” Cannon, 2017 WL 2712958, at *17.

As explained in the email to Bald Head employees, Bald Head’s personnel policy manual

provides that “[d]etrimental personal conduct” is “behavior of such a serious detrimental

nature that the functioning of [Bald Head] may be or has been impaired; the safety of

persons or property may be or has been threatened; or the laws of any government may

be or have been violated.” J.A. 451. Accordingly, “harassment,” “sexual harassment,”

and “detrimental personal conduct” amount to “significant character defects,” such as

“immorality,” Ridpath, 447 F.3d at 309, and therefore stigmatize the Officers’ reputation

in a constitutionally cognizable manner. Additionally, the Officers’ evidence shows that

after the Department released the relevant documents, each Officer either had difficulty

securing a job or accepted a job with less significant responsibilities and lower pay,

thereby creating a reasonable inference that the claims in the termination letters did, in

fact, place a stigma on the Officers’ reputations with prospective employers.

      Peck argues that the disclosures did not impose a constitutionally cognizable

“stigma” on the Officers’ reputations because the allegations in the letters did not

“effectively foreclose [the Officers] from finding future public employment.”

Appellants’ Br. 40–41 (noting that, as a matter of fact, the Officers later “secured . . .

employment”). But in Sciolino this Court held that “[a] public employer who fires . . . an

employee in a manner that sullies the employee’s good name and restricts his future

employment opportunities deprives him of important liberty interests protected by the


                                            20
Fourteenth Amendment.” 480 F.3d at 649 (emphasis added). Likewise, in Ledford v.

Delancey this Court recognized a liberty interest claim based on the inclusion of

allegedly defamatory charges in an employee’s personnel file when the charges

“impaired his ability to procure other employment.” 612 F.2d 883, 885, 886–87 (4th Cir.

1980) (emphasis added). And in Ridpath, this Court held that a demoted public employee

stated a Fourteenth Amendment liberty interest claim, notwithstanding that the employee

continued to hold public employment at the time he brought the claim. See 447 F.3d at

309–10. Accordingly, this Court does not—and has not—required that a disclosure

“effectively foreclose” future public employment for the disclosure to be actionable

under the Fourteenth Amendment.

       This Court decided Sciolino, Ledford, Ridpath, and the other cases cited above

years before the Department discharged the Officers and disclosed the grounds for their

termination.    Accordingly, under our qualified immunity analysis, it was clearly

established at the time of the disclosures that the disclosed allegations would place a

constitutionally cognizable stigma on the Officers’ reputations.

       Second, we turn to the liberty interest requirement “that the charges against [the

Officers] . . . were made public by the employer.” Sciolino, 480 F.3d at 646. In Sciolino,

this Court held that to satisfy the public disclosure requirement “an employee must allege

(and ultimately prove) a likelihood that prospective employers (i.e., employers to whom

he will apply) or the public at large will inspect the [stigmatizing] file.” Id. at 650.

       The district court found—and we agree—that, under the Sciolino standard, Peck

made public the charges against the Officers in several ways, including by sending the


                                              21
Officers’ termination letters to the news media and sending the email to all full-time Bald

Head employees and part-time Department personnel stating that the Officers were

terminated for “harassment,” “sexual harassment,” and “detrimental personal conduct.”

Cannon, 2017 WL 2712958, at *17–18.

       Peck argues that, at the time of the Officers’ discharge, this Circuit’s precedent did

not clearly establish that Defendants made the charges “public” because “the North

Carolina Public Records Act and N.C. Gen. Stat. § 160A-168(b)(11) required

[Defendants] to produce [the Officers’] termination letter[s],” rendering the disclosures

non-“voluntary” and thereby not in contravention of due process. Appellants’ Br. 40.

We disagree. In particular, Peck’s voluntariness argument applies to the disclosure of the

termination letters to the media only. Accordingly, even if Peck is correct that it was not

clearly established that the disclosure to the media of the termination letters amounted to

a liberty interest deprivation, it would in no way preclude the Officers’ Fourteenth

Amendment claims from proceeding against Peck based on the email he voluntarily

disseminated to all Bald Head employees.          Additionally, there is no dispute that

Defendants placed the termination letters in the Officers’ personnel files, meaning that

any prospective employer who sought and received the Officers’ personnel files would

receive the termination letters.

       Recall that Sciolino held that a discharged employee must demonstrate “a

likelihood that prospective employers (i.e., employers to whom he will apply) or the

public at large will inspect the [stigmatizing] file.” Sciolino, 480 F.3d at 650 (emphasis

added). Likewise, Ledford established that discharged governmental employees, like the


                                             22
Officers, have “a right that [their] personnel file contain no substantially false

information with respect to [their] work performance or the reasons for [their] discharge

when that information is available to prospective employers.” 612 F.2d at 887 (emphasis

added).

       This Court decided Sciolino and Ledford years before Defendants discharged the

Officers and disclosed the termination letters and sent the email regarding the

terminations to all Bald Head employees.           Accordingly, notwithstanding Peck’s

disclosure to the media of the Officers’ termination letters, the availability upon request

of those same letters from the Officers’ personnel file may give rise to a constitutionally

cognizable public disclosure. Sciolino, 480 F.3d at 650. And, regardless, the district

court was correct in concluding that “Peck’s email to all [Bald Head] employees and part-

time staff of the department of public safety was voluntarily sent without any request for

the information.” Cannon, 2017 WL 2712958, at *18. In sum, under our qualified

immunity analysis, at the time of the disclosures this Court’s precedent clearly

established that the allegedly stigmatizing statements were made public by Peck.

       With the first two liberty interest requirements satisfied, Peck concedes that the

Officers’ evidence satisfied the third Sciolino element—that the stigmatizing statements

were made in conjunction with the Officers’ termination. Accordingly, the remaining

inquiry focuses on the fourth Sciolino element—whether the Officers’ evidence

established that the “the charges against [the Officers] . . . were false.” 480 F.3d at 646.

According to Peck, the Officers failed to demonstrate the disclosures were “false”

“because there is no dispute about what [the Officers] actually said—the only ‘dispute’


                                            23
[the Officers] are raising is over whether they agreed with . . . Peck’s interpretation of

[Bald Head]’s Personnel Policy provisions which were cited in [their] termination

letter[s].” Appellants’ Br. 38.

       In support of this argument, Peck relies on the Supreme Court’s decision in Codd

v. Velger, 429 U.S. 624 (1977) (per curiam). There, a discharged police patrolman

alleged that the New York City police department placed stigmatizing information in his

personnel file without providing him procedural due process. Id. at 624–26. According

to a record in the file, the department discharged the officer “because while still a trainee

he had put a revolver to his head in an apparent suicide attempt.”                Id. at 626.

Notwithstanding that the officer’s counsel suggested in argument that the “attempt”

“might have been all a mistake, [i]t could also have been a little horseplay,” id. at 628

(alteration in original), the Court held that there was no “factual dispute” because

“[n]owhere in his pleadings or elsewhere has [the officer] affirmatively asserted that the

report of the apparent suicide attempt was substantially false,” id. at 627.

       Contrary to Peck’s argument, Codd has no bearing on this case. As the district

court correctly explained, “here the falsity alleged is not the falsity of the characterization

of the conduct or speech of [the Officers], but rather the falsity of the reasons for

terminating [the Officers] as listed in the termination letters [and] email.” Cannon, 2017

WL 2712958, at *18.

       The district court further concluded—and we agree—that the Officers repeatedly

have alleged that the termination letters and the email to Bald Head employees include

false statements. See id. And the Officers adduced substantial evidence to support their


                                              24
assertions that the stigmatizing statements in the disclosures were, in fact, false. For

example, the termination letters and email to Bald Head staff state that Defendants fired

the Officers for violations of Bald Head’s Personnel Policy—including engaging in

“harassment,” “sexual harassment,” “detrimental personal conduct,” and creating a

“hostile work environment.”       Yet, Peck testified that he terminated the Officers

“[w]hether or not there was any specific policy . . . because that behavior has no place in

the Public Safety Department of Bald Head Island.” J.A. 164 (emphasis added). “[They]

were terminated because they were jerks” and because they “were disrespectful . . . of the

chain of command.” Id. Accordingly, there is a dispute of fact as to whether the

stigmatizing reasons given in the several disclosures were, in fact, the reasons Defendants

terminated the Officers.

         Further, Peck’s email to the Bald Head employees stated that “five officers have

been released from employment this morning based on violations of [Bald Head] policies

pertaining to harassment, sexual harassment, discourteous conduct and inappropriate

electronic communications,” J.A. 451, thereby suggesting that Defendants fired the

Officers for the same reasons. Yet, the termination letters for some of the officers do not

mention “harassment” or “sexual harassment,” and none of the Officers’ Forms F-5B

mentions “harassment” or “sexual harassment.” Indeed, the reasons provided in the

termination letters, the Forms F-5B, the email to Bald Head employees, and Peck’s

testimony are inconsistent with each other, meaning that the Officers have satisfied their

burden to create a triable issue of fact as to whether the stigmatizing disclosures were

false.


                                            25
                                         * * * * *

       In sum, we conclude that under clearly established precedent, Peck made public

false and stigmatizing charges regarding the grounds for the Officers’ termination. This

satisfies Sciolino’s four prongs, thus demonstrating deprivation of the Officers’

constitutionally cognizable liberty interests under clearly established law.

                                             2.

       Having concluded that this Court’s decisions clearly established that Peck

deprived the Officers of a liberty interest, we now must determine whether, under clearly

established law, the Officers were deprived of that interest “without due process of law.”

Segal, 459 F.3d at 213. As explained above, when a governmental employer places an

employee’s reputation “at stake” by publicly disclosing defamatory charges, the

employee is entitled to a hearing “to ‘clear [his] name’ against [the] unfounded charges.”

Johnson, 903 F.2d at 999 (quoting Boston, 783 F.2d at 1167). Here, the Officers never

received a name-clearing hearing. Accordingly, Peck has denied the Officers due process

of law.

       Peck nonetheless asserts that the failure to afford the Officers a name-clearing

hearing does not amount to a violation of clearly established law for two reasons: (1) he

“w[as] not required to provide [the Officers] with an adversarial pre-termination

hearing,” Appellants’ Br. 42, and (2) “[the Officers] had alternative processes to contest

the contents of the termination letter[s],” id. at 41. We disagree.

       We note at the outset that Peck did not argue before the district court that he did

not need to provide an adversarial pre-termination name-clearing hearing. Because Peck


                                             26
did not raise that argument below, it is not properly before us. See, e.g., CoreTel Va.,

LLC, 808 F.3d at 988. 3

       Nevertheless, even if Peck had properly raised that argument, it would fail. In

Sciolino, this Court clearly established that “[a]n opportunity to clear your name after it

has been ruined by dissemination of false, stigmatizing charges is not ‘meaningful.’”

Sciolino, 480 F.3d at 653 (emphases added); see also Fields v. Durham, 909 F.2d 94, 97

(4th Cir. 1990) (“[T]he Due Process Clause normally requires a hearing ‘before the State

deprives a person of liberty or property.’” (quoting Zinermon v. Burch, 494 U.S. 113, 127

(1990))).    Accordingly, regardless whether the Fourteenth Amendment obliged

Defendants to afford the Officers an adversarial, pre-termination name-clearing hearing,

Sciolino established that the Fourteenth Amendment required Defendants to afford the

Officers a constitutionally adequate name-clearing hearing before publicly disclosing

false information regarding the basis for the Officers’ termination that, in fact, restricted

their ability to obtain new employment.




       3
         For the same reason, we decline to address Peck’s argument that Officer
Cannon’s liberty interest claim “fail[s] because he never requested a hearing.”
Appellants’ Br. 48. Rather than asserting that Officer Cannon’s liberty interest claim
failed because he did not request a hearing, Peck argued below that the Officers’ “request
for a grievance hearing did not put [Bald Head] on notice that they wanted a ‘name
clearing hearing,’ as opposed to a grievance seeking reinstatement.” Cannon et al. v.
Vill. of Bald Head, 7:15-cv-00187-H, ECF No. 48, at 22. The district court denied
summary judgment on that ground. Cannon, 2017 WL 2712958, at *19 (“[T]he clarity of
the [name-clearing hearing] request after dissemination of false, stigmatizing charges is
not dispositive.”). Peck does not challenge that conclusion on appeal.



                                             27
       Peck’s second argument pertaining to the adequacy of the process afforded—that

an alternate state-law process provided the Officers an opportunity to contest the claims

in the termination letters—fares no better. The state statute upon which Peck relies, N.C.

Gen. Stat. § 160A-168(d), requires municipalities to “establish procedures whereby an

employee who objects to material in his [personnel] file on grounds that it is inaccurate or

misleading may seek to have the material removed from the file or may place in the file a

statement relating to the material.” Peck concedes that this argument applies to the

defamatory statements in the termination letters only. See Appellants’ Br. 41. And by its

terms, the only remedy afforded by Section 160A-168(d) is removal of the termination

letters from the personnel file or placement of notes in the personnel file.

       Here, Peck did not just place the termination letters in the Officers’ personnel

files; Peck disclosed the allegedly false and stigmatizing letters to the media. And Peck

made further disclosures of false and stigmatizing statements regarding the grounds for

the Officers’ termination in his email to Bald Head employees. Accordingly, regardless

whether Section 160A-168(d) provides constitutionally adequate process to remedy any

defamatory and stigmatizing information in the Officers’ personnel file, it does not

provide the Officers’ with any process to remedy the false disclosures at issue here, let

alone the constitutionally mandated name-clearing hearing. See Johnson, 903 F.2d at

999.

                                         * * * * *

       In sum, under clearly established law, Peck’s disclosure of the allegedly false and

stigmatizing termination letters and email to Bald Head employees deprived the Officers


                                             28
of a constitutionally cognizable liberty interest. And this Court’s precedent also clearly

establishes that Peck did not afford the Officers due process of law because Peck did not

afford the Officers a name-clearing hearing before disseminating the false and

stigmatizing materials. Accordingly, we affirm the district court’s denial of qualified

immunity regarding the Officers’ Fourteenth Amendment liberty interest claims.

                                             C.

       Defendants next argue that the district court erred in denying their motion for

summary judgment on the Officers’ defamation claims. However, because the officers’

defamation claims are separate from our consideration of qualified immunity, we must

first confirm that we have jurisdiction over this discrete aspect of Defendants’ appeal.

       Unlike a denial of qualified immunity, which is immediately appealable despite its

interlocutory status, Johnson v. Fankell, 520 U.S. 911, 915 (1997), our appellate

jurisdiction is generally limited to final orders from district courts, see Hensley ex rel.

N.C. v. Price, 876 F.3d 573, 586 n.7 (4th Cir. 2017); 28 U.S.C. § 1291.              In two

circumstances we may exercise our “pendent appellate jurisdiction” to consider

additional issues arising from non-final orders: “(1) when an issue is inextricably

intertwined with a question that is the proper subject of an immediate appeal; or (2) when

review of a jurisdictionally insufficient issue is necessary to ensure meaningful review of

an immediately appealable issue.” Hensley, 876 F.3d at 586 n.7 (internal quotation

marks omitted).

       Defendants assert that this Court can exercise pendent appellate jurisdiction over

the Officers’ libel claims because those claims are “intertwined” with the district court’s


                                            29
qualified immunity determinations, which are properly before this Court. “Two separate

rulings are ‘inextricably intertwined’ if the ‘same specific question’ will ‘underlie both

the appealable and the non-appealable order,’ such that resolution of the question will

necessarily resolve the appeals from both orders at once.” Scott v. Family Dollar Stores,

Inc., 733 F.3d 105, 111 (4th Cir. 2013) (internal quotation marks omitted).

       On appeal, Defendants argue that in refusing to dismiss the Officers’ defamation

claim “the district court erred in holding that [the Officers] offered sufficient evidence of

actual malice to survive summary judgment.” Appellants’ Br. 50. Under the Supreme

Court’s decision in New York Times v. Sullivan, public officials—like the Officers—must

prove by clear and convincing evidence that a defendant made an allegedly defamatory

statement with actual malice, i.e., “with knowledge that it was false or with reckless

disregard of whether it was false or not.” 376 U.S. 254, 279–80 (1964). “Actual malice

is a subjective standard.” Reuber v. Food Chem. News, Inc., 925 F.2d 703, 714 (4th Cir.

1991) (en banc). Although what constitutes “[r]eckless disregard . . . cannot be fully

encompassed in one infallible definition,” the Supreme Court has “emphasized the

necessity for a showing that a false publication was made with a ‘high degree of

awareness of . . . probable falsity.’” St. Amant v. Thompson, 390 U.S. 727, 730–31

(1968) (quoting Garrison v. Louisiana, 379 U.S. 64, 74 (1964)). “[R]eckless conduct is

not measured by whether a reasonably prudent man would have published, or would have

investigated before publishing.      There must be sufficient evidence to permit the

conclusion that the defendant in fact entertained serious doubts as to the truth of his

publication.” Id. at 731.


                                             30
       Whether Defendants acted with actual malice in disclosing the termination letters

and Forms F-5B and sending the email to Bald Head employees is not inextricably

intertwined with the district court’s denial of qualified immunity to Peck and Mitchell on

the Officers’ First and Fourteenth Amendment claims. In particular, resolving Peck and

Mitchell’s qualified immunity appeals does not require that we determine that Defendants

made the allegedly defamatory disclosures with a “high degree of awareness of . . .

probable falsity.” Id. (internal quotation marks omitted). Accordingly, resolution of

Peck and Mitchell’s claim to qualified immunity will not “resolve the appeals from both

orders at once.” Scott, 733 F.3d at 111.

                                           D.

       Defendants’ final argument is that the Officers’ “prayer for injunctive relief on

their liberty interest claim[s] should be dismissed as moot.”        Appellants’ Br. 55.

However, this remedies question is wholly unrelated to our qualified immunity inquiry.

We therefore also lack pendent jurisdiction to consider Defendants’ mootness argument.

See Rux v. Republic of Sudan, 461 F.3d 461, 476 (4th Cir. 2006) (finding no basis for

pendent jurisdiction given that “[e]ach issue involves a distinct legal concept that does

not affect analysis of the other”).



                                           III.

       For the foregoing reasons, we affirm the district court’s denial of qualified

immunity to Peck regarding the alleged due process violations and reverse the district

court’s determination that Peck and Mitchell are not entitled to qualified immunity


                                           31
regarding the Officers’ First Amendment claims.    Because we lack jurisdiction to

consider Defendants’ defamation and mootness arguments, we dismiss those aspects of

Defendants’ appeal. Accordingly, we

      DISMISS IN PART, AFFIRM IN PART, AND REVERSE AND REMAND IN PART.




                                        32
