                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 14-1798


DOUGLAS SKINNER,

                Plaintiff – Appellant,

          v.

LOUDOUN COUNTY DEPARTMENT OF MANAGEMENT AND FINANCIAL
SERVICES,   HUMAN   RESOURCES  DIVISION;   LOUDOUN   COUNTY
DEPARTMENT OF FIRE RESCUE AND EMERGENCY MANAGEMENT; WILLIAM
KEITH BROWER; JOSE SALAZAR; ROGER MARTIN; JAMES WILLIAMS;
PATTY RUSSELL; STEVEN VAN WINKLE; FRANK HOLTZ; ROBERT NOE;
COREY PARKER; STEPHEN NACY; MATTHEW BISGAIER; KAREN REIDY;
JAMES CROMER,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:14-cv-00006-LO-TRJ)


Submitted:   January 30, 2015             Decided:   February 9, 2015


Before KING, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas K. Plofchan, Jr., WESTLAKE LEGAL GROUP, Potomac Falls,
Virginia, for Appellant. Julia B. Judkins, BANCROFT, MCGAVIN,
HORVATH & JUDKINS, P.C., Fairfax, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Douglas          Skinner        appeals         from    the     district      court’s

orders granting summary judgment on his 42 U.S.C. § 1983 (2012)

complaint, which alleged federal and state due process claims as

well    as   a    related       state     claim        of     defamation.          Skinner      also

challenges        the     denial        of     his       motion       for     reconsideration.

Skinner’s claims arise from his termination from his job as an

emergency        medical       services       training         officer      with    the    Loudoun

County Department of Fire Rescue and Emergency Management.                                         He

was    terminated        for    striking       a       student       (Stephen      Nacy)   in     the

head.    For the reasons discussed below, we affirm.

                                                I.

             Skinner first asserts that he had a due process right

to know the substance of the evidence asserted by Loudoun County

prior to his termination.                At the time of his termination, it is

undisputed        that        Skinner        was        a     public        employee       with    a

constitutionally          protected          property         interest      in   his    continued

employment.        As such, he could not be fired without due process.

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985).

Thus,    Skinner        was    entitled,       prior         to     his   termination,       to   be

given “oral or written notice of the charges against him, an

explanation of the employer’s evidence, and an opportunity to

present his side of the story.”                             Loudermill, 470 U.S. at 546;



                                                   2
see Riccio v. County of Fairfax, 907 F.2d 1459, 1463 (4th Cir.

1990).

              Skinner    has    never     claimed         that    he    did    not   receive

notice of Loudoun County’s intent to terminate his employment or

that he did not have an opportunity to present his side of the

story.    Skinner does, however, contend that Defendants failed to

provide him with an explanation of its evidence.                              While Skinner

admits that he was made aware of the allegations against him, he

avers    that    he    was   never     told       what   the     actual      evidence    was.

Specifically, Skinner was not aware, prior to his termination,

of the identity of an eyewitness (Nathan Wise), that Nacy had

told someone else that Skinner struck him, or that Nacy had sent

a relevant email.

              However,       Skinner    cites       no    case    law       supporting   his

assertions that he was entitled, prior to his termination, to

names    of     eyewitnesses,        names        and    details       of     corroborating

witnesses, and corroborating documents.                         “Due process does not

mandate that all evidence on a charge or even the documentary

evidence be provided, only that such descriptive explanation be

afforded as to permit [the employee] to identify the conduct

giving rise to the dismissal and thereby to enable him to make a

response.”      Linton v. Frederick County, 964 F.2d 1436, 1440 (4th

Cir. 1992); see also Ryan v. Illinois Dep’t of Children & Family

Svcs,    185    F.3d     751,    761-62       (7th       Cir.    1999)      (holding     that

                                              3
employee is entitled to an explanation of why he is being fired

but not all relevant documentary support); Harrison v. Wille,

132    F.3d    679,       684    (11th   Cir.     1998)       (opining       that    Loudermill

requires only that the employee be given “the opportunity to

respond       after       being    confronted          with      the    charges”      (internal

quotation marks omitted)); Crocker v. Fluvanna County Bd. of

Pub.    Welfare,          859     F.2d     14,       17   (4th        Cir.   1988)        (finding

“explanation         of    the     charges”       was     sufficient         to    satisfy      due

process).

               The record makes clear that Skinner was informed that

he was charged, on a specific date, with harassing, hitting, and

kicking Nacy.         He also was told that there was another witness

to the altercation.               Skinner understood the charges sufficiently

to prepare a detailed response, and there is no evidence that

Skinner       misunderstood         or     expressed        any       confusion      about      the

charges.        Accordingly,          we    conclude          that     Skinner      received      a

sufficient explanation of the evidence against him.

                                                 II.

               Next, Skinner contends that he was deprived of his

right to confront Nacy before and after his termination.                                        Nacy

did    not    testify       at    Skinner’s       hearing        as    he    was    out    of    the

country;       his    hearsay       statements            were    admitted         through       the

examination of the County’s investigator.                             Skinner concedes that

he has no Sixth Amendment right to confrontation in a civil

                                                 4
case,   but        he   asserts         that    he   has    a    due     process    right   to

confrontation under the Fifth and Fourteenth Amendment.

              There is no absolute due process right to confront and

cross-examine           an    accuser      in    such       a    situation;     instead,    a

balancing test should be conducted.                        See Rodgers v. Norfolk Sch.

Bd., 755 F.2d 59, 63 (4th Cir. 1985) (holding that deprivation

of direct confrontation of accusers was not an “indispensable

element of due process” and that, instead, it was proper to

weigh the other procedural safeguards given in the case against

“the obvious countervailing risks of emotional trauma” for the

accusers); Papapetropoulous v. Milwaukee Transp. Svcs., 795 F.2d

591,    598    (7th       Cir.     1986)       (applying        the     three   factor   test

outlined      in    Mathews        v.    Eldridge,      424      U.S.    319,   335   (1976):

(1) the private interest affected; (2) the risk of an erroneous

deprivation         and      the   probable      value      of    additional       procedural

safeguards; and (3) the Government’s interest).

              In the instant case, the weighing of the appropriate

factors leads to the conclusion that Skinner was not deprived of

due process.            He was informed of the charges against him, the

name of his accuser, and the fact that there was at least one

other eyewitness to the incident.                     At the hearing, he presented

evidence, testified on his own behalf, called a corroborating

witness, and cross-examined Loudoun County’s witnesses.                               Nacy’s

hearsay statements to the investigator were corroborated by an

                                                 5
email      and    by   eyewitness       testimony,      and   Nacy   was   not   present

because he was deployed in Afghanistan.                       While Skinner contends

that he was prevented from asking questions regarding Nacy’s

motivations, impression, and agenda, he could have offered that

evidence (if there was any) through other sources and/or could

have       subpoenaed     Nacy    and    moved    for    a    continuance   to    permit

Nacy’s      appearance.          On   appeal,    Skinner      does   not   present   any

exculpatory statements or evidence he hoped to elicit.                             Given

the remaining procedural safeguards in place, the lack of any

evidence of prejudice, and the fact that Nacy was deployed in

Afghanistan, we conclude that Skinner was not unconstitutionally

deprived of an opportunity to challenge his termination.

                                           III.

                 Skinner avers that Loudoun County’s failure to comply

with Loudoun County Human Resources Personnel Policies (“LCPPP”)

§ 11.11(B) violated his due process rights because he was not

able to review relevant documents with enough time to prepare

his defense.           Section 11.11(B) provides for an employee’s access

to “relevant files” at least ten days prior to the hearing.

Setting aside the hotly disputed question of whether Loudoun

County violated the County ordinance at all, 1 we conclude that,


       1
       Skinner concedes that violation of a county ordinance
would not contravene federal due process, see Morris v. City of
Danville, 744 F.2d 1041, 1048 n.9 (4th Cir. 1984). Instead, he
(Continued)
                                             6
even if there was error, Skinner has not shown a due process

violation.

            Again, the sufficiency of the procedures employed in

any particular situation must be judged in light of the parties,

the subject matter, and the circumstances.        Grimes v. Nottoway

Cnty. Sch. Bd., 462 F.2d 650, 653 (4th Cir. 1972).             Although

Skinner received most relevant documents pursuant to the Freedom

of Information Act (“FOIA”), he asserts that his FOIA requests

only resulted in redacted documents that did not identify the

potential    eyewitnesses.   Moreover,   the   documents   produced   by

Loudoun County five days prior to the hearing identified Nathan

Wise as a witness but did not indicate that he was one of the

eyewitnesses.     As such, Skinner avers that he was not able to

adequately prepare to defend himself.

            Loudoun County made it clear that Skinner could review

their files if he so requested, even though in the County’s

opinion Skinner had missed the ten-day deadline.           However, the

joint appendix does not show that Skinner ever requested any

files or documents.      Moreover, he was clearly aware that the

investigator’s notes identified eyewitnesses, and he could have

requested to review the unredacted notes.         Finally, given the



contends that “LCPPP 11.11(B) does not grant more procedural
rights than what is protected by the Constitution.”



                                 7
procedural protections discussed above that Skinner did receive,

the failure to show prejudice, and the lack of any absolute

right     to     the    identification         and     production       of   relevant

documents,       the    specific       process       afforded    to     Skinner      was

constitutionally adequate.

                                         IV.

               Finally,    Skinner     argues    that    his    defamation        claims

were improperly dismissed for failure to produce evidence of

malice.    Skinner avers that his allegations that the Defendants

“intentionally         made    false    statements       to     the     County”    were

sufficient for a reasonable inference that the Defendants acted

with malice.       Moreover, he asserts that the claim was dismissed

prior to an answer being filed and before any discovery was

exchanged, so any ruling was premature.                   Skinner contends that

the   district     court      improperly   weighed       the    facts    alleged     and

contained in the record and usurped the role of the jury.

               However,    after     Defendants       filed     their     motion     for

summary judgment, Skinner did not address the defamation claim

in his response, his own motion for summary judgment, or his

reply.     He objected, for the first time, in his motion for

reconsideration.               Moreover,       even     in      his      motion      for




                                           8
reconsideration, Skinner did not request discovery. 2                Thus, his

arguments against dismissal were waived.            Scottsdale Ins. Co. v.

Flowers, 513 F.3d 546, 553 (6th Cir. 2008).              Because Skinner has

waived   any    argument   that   summary   judgment     on    his   defamation

claim was premature, and because Skinner presented no details or

specific allegations of malice, we reject his claim on appeal.

            Based on the foregoing, we affirm the district court’s

judgment.      We dispense with oral argument, because the facts and

legal    contentions     are   adequately   presented     in   the   materials

before   this    court   and   argument   would    not   aid   the   decisional

process.

                                                                       AFFIRMED




     2
        Skinner argued generally            that    summary     judgment   was
inappropriate “at this juncture.”



                                      9
