Willis et al v. City of Virginia Beach, Virginia and its Police Department et al, No. 2:2014cv00652 - Document 13 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION AND ORDER re 2 Motion to Dismiss. The Defendants' Motion to Dismiss is DENIED with respect to Counts II and III of the Complaint, the Plaintiffs' free speech claims, and with respect to Count IV of the Complaint, the P laintiffs' claim for deprivation of a property interest without due process. The Plaintiffs' claim for wrongful suspension under Virginia law (Count I) is DISMISSED; the Plaintiffs' claim for deprivation of substantive due proc ess under the Fourteenth Amendment to the United States Constitution (Count V) is DISMISSED; and the Plaintiffs' claim for deprivation of a liberty interest without procedural due process under the Fourteenth Amendment to the United States Constitution (Count VI) is also DISMISSED. A copy of this order was sent to all counsel of record on 3/6/15. Signed by Chief District Judge Rebecca Beach Smith and filed on 3/6/15. (tbro)
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Willis et al v. City of Virginia Beach, Virginia and its Police Department et al UNITED Doc. 13 STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division CHRISTOPHER T. WILLIS, et al., Plaintiffs, v. CIVIL ACTION NO. 2:14cv652 CITY OF VIRGINIA BEACH, and its POLICE DEPARTMENT, et al.. Defendants. MEMORANDUM OPINION AND This Pursuant and matter to comes Federal accompanying before Rule of Beach James A. in Cervera ("Cervera") 2, Thomas 10. The C. "City") Shattuck ("Wilkerson") 27, (the 2015, — ECF No. February 2, 2015. Plaintiffs filed 11, court Civil Memorandum Virginia Nos. the ORDER on Procedure Support, and their Memorandum and ECF No. by Chief to Dismiss ("Motion") the City of T. Willis Jeffery E. of Police the "Defendants"). Christopher and 12(b)(6) Beach Virginia ("Shattuck"), Motion filed (collectively, — the ECF ("Willis"), Wilkerson in Opposition on January the Defendants filed 12. This matter has their Rebuttal on been fully briefed and is ripe for review. Dockets.Justia.com I. Because 12(b)(6), this FACTUAL AND PROCEDURAL BACKGROUND case arises from a motion to dismiss under Rule the facts as alleged in the Complaint are assumed to be true and viewed in the light most favorable to the Plaintiffs.1 In essence, the Plaintiffs allege that they were disciplined by their employers, the Defendants, their positions as supervisors Department's ("VBPD") The times Plaintiffs relevant on the wrongfully in connection with Virginia Beach Police SWAT Team. are veteran members herein, VBPD of officers the and SWAT VBPD were, at Team. all Compl. 1IH 1-4. The SWAT Team is a "specialized tactical unit that is used when there or an is armed extensive a high probability of encounter." training environments, terrorist Id. "in explosive bombings H 9. life SWAT nuclear, breaching and a other threatening situation Team members biological threat areas and assessment of tactical receive chemical as well as response." Id. H 10. Before becoming a selected to join the full position ("Kosmas"), with Team member, all VBPD officers SWAT Team must first undergo a probationary period involving rigorous, Kosmas SWAT a specialized training. female the SWAT Team VBPD officer, in January Id. was 2009. H 18. Nicole chosen Id. for H 16.2 a The 1 See infra Part II 2 Kosmas joined the VBPD in 2003 and was eventually promoted to the rank of Master Police Officer ("MPO") ; when she joined the SWAT Plaintiffs served as Kosmas' supervisors her tenure on the SWAT Team, at various times during both during her probationary period and after she qualified as a full member. Id. H 17. The Plaintiffs assignment on the contend SWAT that Team, "[f]rom Kosmas the beginning consistently of failed to her meet the requirements of the position." Id. H 20. The Complaint details Kosmas' alleged shortcomings at length, see id. summary, the Plaintiffs claim that selected to join the SWAT Team, from the KH 21-48, but in moment she repeatedly fell Kosmas was short of the skill level necessary to ensure the safety of the public and her fellow allege officers. Furthermore, the Plaintiffs that Kosmas reacted with hostility to constructive criticism and demonstrated an "intolerable attitude, and disrespectful and antagonistic behavior, and lack of accountability" to her superiors. Id. Conflict between escalated throughout 2011 Plaintiffs, her would and 2012, and Id. However, attorney remain met with her fellow Kosmas' officers superiors, internally. continued to "incompetence lodge as she became their well the Cervera, SWAT Id. Team H 46. it and was her with inability 11-6. and after she determined that deficiencies the Cervera to operate female VBPD officer ECF No. the transferred out of Nevertheless, complaints as her first Pis.' Mem. Opp'n at 6-7, including Kosmas retained counsel, with the resolved Team, and eventually recommended that she be the SWAT Team. and Kosmas K 45. to do she would be Plaintiffs about Kosmas' in stressful so. Ex. 6 to situations" and "informed Kosmas on multiple occasions that [her] performance was substandard." Id. H 48. On August 7, with the Equal to Pis.' had Mem. been violations The Opp'n at of filed Kosmas' employee her own actions," City's skill stressful and ECF No. 11-1. treated Kosmas of its the Civil EEOC charge who Rights Position as the refuses Ex. 2 Position to to situations, EEOC City, the baseless Ex. her 1964. 1 she male at which in Id. it assertions the and her her Opp'n extensively difficulty poor of consequences issued a right-to-sue letter at 19, reviewed handling a of ECF No. Kosmas' herself in particularly attitude, in Id. at 3-12. to Kosmas, and on Kosmas filed suit in this federal court against VBPD, Cervera, all three In her complaint, 11-6. well as declaratory and injunctive relief, discrimination, Plaintiffs, and several Ex. 6 to Pis.' Mem. Opp'n, ECF No. gender of Statement, Mem. other supervisory SWAT Team officers. of from Act accept Pis.' Statement deficiencies, February 10, 2014, the ("EEOC"). alleged that disparately response to criticism from supervising officers. The of Discrimination and vehemently denied any suggestion of gender- based discrimination. tactical 1, Title VII City "disgruntled The filed a Charge and had been retaliated against for her complaints of characterized 11-2. Kosmas Opportunity Employment Commission harassed colleagues, 1-2. 2012, Kosmas sought monetary damages, including a for various hostile work as iterations environment, disparate treatment, and retaliation. Id. at 2-3. According to against Kosmas' was not opened until an the claims, after internal discrimination, Plaintiffs, Defendants supported until Kosmas filed suit. Compl. Kosmas filed investigation and the the her into Defendants complaint her changed H 53. that allegations them the of It VBPD gender their position vis-a vis the Plaintiffs' culpability. Id. HH 54-55. In early September 2014, Cervera met with each of the Plaintiffs separately to inform them that they were being charged with violating VBPD rules. to each Id. HH 56, Plaintiff 61, cited 65. The memorandum of charges provided their "awareness [their] subordinates were engaging in inappropriate sexual, that racial and/or religious behaviors in the form of statements and physical gestures." Id. H 57; see id. K1| 61, 65. Additionally, the memorandum provided to Wilkerson cited his "failure to take action to stop behavior that 'could be considered offensive.'" Id. H 56. The Plaintiffs all denied any wrongdoing. Id. UH 58, 62, 66. In mid-October 2014, entire VBPD entitled Mem. Opp'n, officers to ECF No. treat Cervera "Expectations 11-13. The circulated memorandum for Conduct." memorandum each other with respect tolerance policy for the use of racial, slurs, a calls and by members of the VBPD. Id. 13 for espouses gender-based, as well as for the viewing or sharing of materials, Ex. to to all a the Pis.' VBPD zero- or religious sexually explicit According to the Plaintiffs, type of the VBPD had no policy or procedure misconduct Compl. 1| 70. prior Just to days Cervera later, circulating Cervera and this memorandum. each the HH 60, Id. of 64, Wilkerson and Shattuck were both suspended for twenty hours, Willis allege no the provided Plaintiffs with a Notice of Disciplinary Action. 68. related to was suspended for forty hours. Id. that other supervisory SWAT Team members, relationship alerting the to the had establishes of their suspensions, the with been vocal in This, the for relief. problems not either zero discipline or lesser discipline." Id. H 71. nature" the or "either had "received contend, to case who Plaintiffs Kosmas, Plaintiffs Defendants" Kosmas The "arbitrary and pretextual and forms the basis of their claims Id. II. STANDARD Pursuant to Rule 12(b)(6), OF REVIEW a complaint must be dismissed when a plaintiff's allegations fail to state a claim upon which relief can be granted. to dismiss Fed. tests the R. Civ. P. 12(b)(6). sufficiency of a A Rule 12(b)(6) complaint; resolve contests surrounding the facts of the case, a claim, or the applicability of any defense. N.C. v. Martin, it motion does not the merits of Republican Party of 980 F.2d 943, 952 (4th Cir. 1992).3 "To survive a 3 In their Memorandum in Support of their Motion to Dismiss, the Defendants allude to, but do not squarely present, a defense of qualified immunity. See Defs.' Mem. Supp. at 14. Because the defense However, was not clearly raised, the court will not address it. even if the Defendants had asserted qualified immunity, 6 motion to matter, dismiss, a accepted as plausible (2009) on its (quoting (2007)). content inference that alleged." Id. true, face.'" Bell Facial factual complaint to Corp. plausibility the allows a claim Iqbal, 556 U.S. 662, 678 Twombly, 550 U.S. 544, 570 that court is factual relief means defendant sufficient to v. v. the (citing Twombly, contain 'state Ashcroft Atl. that must a to liable 550 U.S. that "plaintiff draw the for at 556). the is pleads reasonable misconduct It is, therefore, not enough for a plaintiff to allege facts demonstrating a "sheer possibility" or (citing Twombly, "mere[] consist[ency]" with unlawful conduct. Id. 550 U.S. at 557). The Supreme Court, in Twombly and Iqbal, offered guidance to courts evaluating a motion to dismiss: In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual When there are well-pleaded factual allegations. allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement Iqbal, 556 U.S. to relief. at 679. That is, the court accepts facts alleged the disposition of this Motion would not likely change. v. Baltimore City (4th Cir. 2014) a Rule 12(b) (6) State's Attorney's Office, F.3d 379, 396 ("A qualified immunity defense can be presented in motion, but . . . the hurdle and is usually not successful.") omitted); 767 See Owens see also McVey v. Stacy, defense faces a formidable (internal quotation marks 157 F.3d 271, 278-79 (4th Cir. 1998) (affirming district court's decision to defer deciding qualified immunity until the "record is better developed"). in the complaint as favorable to 417 418, F.3d should true and views those facts the plaintiff. not 420 (4th grant the E.g., Cir. Venkatraman v. 2005). After Defendants' so Motion, 'a sheer possibility'" have rights, accepted as their true, claim entitling 186, 193 that resolving but the the court Plaintiffs that the Defendants facts, when stated a 588 F.3d (quoting Iqbal, this Motion, 556 U.S. therefore, the that the Defendants disciplined the Plaintiffs, purpose, Inc., [Plaintiffs have] (4th Cir. 2009) In Sys., doing, "articulat[ing] that the light most to relief." Francis v. Giacomelli, [them] 'show' by REI if "demonstrate more than violated in the instead to retaliate against voicing legitimate concerns about Kosmas' at 677-78). court will assume not for any valid the Plaintiffs job performance, for and to shield themselves from liability in Kosmas' civil suit for gender discrimination. facts face of court the Complaint, items orders, appearing attached to F. The Supp. the 2d may as 631 well in the complaint." 628, consider (E.D. as the "matters record of Silverman v. Va. 2012) the alleged on of public case, Town of record, and exhibits Blackstone, (citations the 843 omitted) . The court may also look to documents incorporated by reference in the Complaint without converting a Rule 12(b)(6) motion States, for summary judgment. 369 F.3d 345, 353 n.3 See id. (4th Cir. motion into a Rule 56 (citing 2004)). Pueschel v. United III. ANALYSIS A. Count I — Wrongful Suspension in Violation of Virginia Public Policy Count I of the Complaint alleges that the Plaintiffs were wrongly suspended from the VBPD, in violation of the public policy underlying as Virginia promotions, transfers, of employment." temporary and the Compl. KH 75, they Commonwealth of well-trained evidenced encouraging public a direct result, they "lost and many other benefits 79. The Plaintiffs contend that the received for voicing their concerns incompetence violated three distinct public policies law by (2) Virginia local concern, Virginia: (1) enforcement, §§ 9.1-114 and 9.1-115; as and, pay opportunities suspensions about Kosmas' of law, as evidenced by Virginia Code a policy of ensuring workplace safety, Code employees as a policy favoring competent § to evidenced 4 0.1-51.2:1; express by and opinions Virginia Code (3) on § a policy matters of 15.2-1512.4. Compl. 111 76-78. The after the Plaintiffs model recognized their cause claims of action for for wrongful wrongful suspension termination under Virginia law. Virginia adheres to the common law doctrine of employment-at-will, under which a term of employment is presumed to extend indefinitely and may be terminated by either employer or employee, for any reason, Giles Wines, v. However, Virginia 262 Va. upon reasonable notice. 68, recognizes 72, an 9 546 S.E.2d exception to E.g., 721, the County of 723 (2001). doctrine of employment-at-will "based on an employer's violation of public policy in the discharge of an employee." Rowan v. Tractor Supply Co. , 710 263 Va. 209, 213, 559 S.E.2d 709, (2002) seminal Virginia case establishing the exception, Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (citing the Bowman v. State (1985)). Lawsuits brought under this exception are known as "Bowman claims," and the Supreme Court of Virginia "has consistently characterized exceptions as 'narrow.'" City of Va. Beach v. Harris, 232, 523 Corp. S.E.2d 239, v. Lockhart Brooks, v. 245 251 (2000) Va. 94, 98, Educ. 331 Bowman, 328, 801) . (1994); Bowman's violate . . . the breadth policy is 465 Sys. S.E.2d Corp., 229 806, 247 Va. at "limited underlying protect the property rights, 468, No 362 S.E.2d 915, 540, to court in Virginia, extended Bowman to actual either existing 98, 331 and the court 104, laws 439 S.E.2d which designed health, to safety, Inc., at or 234 Va. (emphasis added). state the mere suspension of termination, (1996); discharges personal freedoms, 918 (1987) 809 Va. welfare of the people in general." Miller v. SEVAMP, 462, 259 Va. 220, (citing Lawrence Chrysler Plymouth Commonwealth S.E.2d such or federal, employment, declines to do so has ever rather than here. The doctrine of employment-at-will concerns the ability of an employer and employee to terminate the employment relationship; it has nothing to do with the power of an employer to temporarily suspend 10 employment or otherwise discipline its employees.4 Because Bowman claims are an definition, to the employment-at-will to a true discharge, Inc., Aug. 24, 2010); Prof'l Cir. 458, at *3 Jones is not much by terminated. v. more instant 1220, Hospitality closely case.5 See 1232 (E.D. Va. at *11 2010 WL 3418235, (E.D. Va. Res., (1995); Wright v. Donnelly & Co., Inc., 28 Va. 35 Cir. Va. 185, (1992) . In this case, twenty hours. Regardless of and Willis 60, UK their 64, duties as was 68. the they from duty all three members the VBPD of for forty Plaintiffs SWAT Team. pay opportunities or other benefits Plaintiffs received suspended Thereafter, full the promotions, employment discipline Wilkerson and Shattuck were suspended from duty hours, Compl. resumed of is 939 F. Supp. 1996); Gastyne v. Entrust, for which Bowman claim than the Michael v. Sentara Health Sys., at *2 doctrine, Virginia courts have refused to extend the exception constructive analogous to they cannot arise when employment Furthermore, even exception did may not have lost, amount to id. U 79, termination the from 4 The discharge of an at-will employee becomes tortious by virtue of "the employer . . . misus [ing] its freedom to terminate the services of" such an employee. Miller, 234 Va. at 467, 362 S.E.2d at 918. 5 An employee is constructively deliberately makes the work inducing the employee to quit. F.2d 1251, 1255 (4th Cir. discharged when an employer conditions intolerable, thereby Bristow v. Daily Press, Inc., 770 1985) (internal citations Thus, unlike the Plaintiffs' temporary suspensions, discharge does involve the termination of employment. 11 omitted). constructive employment. Therefore, the Plaintiffs' Because Bowman and its progeny are inapplicable to case. the court finds that Virginia does not recognize a cause of action for wrongful suspension in violation of Virginia public policy, the court need not address whether the Plaintiffs' suspensions were contrary to the policies underlying the statutes cited in the Complaint. Accordingly, Count I is DISMISSED for failure to state a claim upon which relief can be granted. B. Counts Section II 12 and of the III — Retaliation Virginia Under Constitution Article and the I, First Amendment to the United States Constitution Counts II and III of the Complaint allege, the free Plaintiffs speech, were disciplined in violation guaranteed by Article I, concerns The about Plaintiffs Kosmas' contend incompetence of their that right to Section 12 of the Virginia Constitution,6 and by the First Amendment Constitution. respectively, to the United States that, as a in SWAT voicing officer their and the safety risks she created, and recommending that she be transferred out of the unit, they engaged in constitutionally protected 6 Article I is the Virginia Constitution's Bill of Rights, Section 12 provides in part that: any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; [and] that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances. Va. Const. Art. I § 12. 12 and expression. the Compl. Defendants rights, HH 85, 94. retaliated The Plaintiffs against them further for argue exercising that these by suspending them after Kosmas filed her civil complaint. Id. 1111 86, 97. The Supreme Court of Virginia has held that "Article I, § 12 of the speech Constitution provisions Commonwealth, of of the 267 Va. York Cnty. 2006) . Thus, Sch. although 473-74, 626 F. Div. , 418 Counts the has 593 S.E.2d 263, 2d 566, 583 v. (2004); see (E.D. Va. and arise may not "constitutionally as citizens comment v. Bd. to "does not rights on matters Educ. , 391 U.S. free Elliott 269 2d 816, III the 2009); 835 (E.D. Va. under different the analysis is the same for both. First Amendment rights Amendment." F. Supp. II relinquish the such with long been established that public employees, Plaintiffs, of coextensive First Supp. sources of constitutional law, It is federal 464, also Key v. Robertson, Lee v. Virginia 563, require of 568 a be such as compelled to they would otherwise enjoy public (1968). public interest." However, office to Pickering safeguarding be run as a roundtable for employee complaints over internal office affairs." Connick v. Myers, 461 U.S. 138, 149 (1983) . Therefore, the court must strike the proper balance between a public employee's right to speak on matters of public concern, run efficient, Volunteer Fire functional operations. Co., 218 F.3d 337, 13 and the employer's right to Goldstein v. 351 (4th Cir. Chestnut Ridge 2000) (citing Connick, To 461 U.S. at 142). make such a determination, the Court of Appeals for the Fourth Circuit has adopted a three-part test to determine whether a public employee has stated a claim for retaliation in violation of his right of free speech. (4th Cir. 1998); must 2012) Brooks v. (citing McVey Daniels v. Quinn, v. Arthur, Stacy, 801 F.2d 687 157 685 F.3d 367, F.3d (4th Cir. 271 1986)). (4th 371 Cir. The court consider: (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, 157 omitted). of public McPherson, F.3d The at 277-78 (emphasis first prong, concern, is 483 whether the 378, U.S. " [t]he 384 added) citations speech addressed a matter threshold (1987). (internal If question." an Rankin employee's v. speech "cannot be fairly characterized as constituting speech on a matter of public concern, it is reasons for [the employee's] unnecessary ... to discharge." Connick, scrutinize the 461 U.S. at 146. 1. Speech on a Matter of Public Concern There speech 371. are touches no a "sharp matter At an abstract level, lines" of public however, 14 for when concern. a public Brooks, employee's 685 F.3d at "[s]peech involves a matter of public concern when it involves an issue of social, political, or other interest to a community." 388 F.3d 440, 146). By 446 (4th Cir. contrast, conditions of Kirby v. City of Elizabeth City, 2004) (citing "[p]ersonal employment, or Connick, grievances, expressions 461 U.S. complaints about at about other matters of personal interest do not constitute speech about matters of public concern that Colleton are Cnty. (citing protected Sch. Connick, employees make employees are purposes, Dist., 461 not and the 547 421 Plaintiffs' form, speech record." Connick, content, there form, F.2d at 152, 147) . as Amendment." to citizens for does not (2006) . To determine falls, court First which consider v. v. 1992) public the Amendment insulate their Ceballos, category "the the content, as revealed by the whole at 147-48. is that, at this early stage is barely any record from which to and context of the Plaintiffs' statements regarding "multiple acts of incompetence as well as her inability to situations" 15 that glean the Kosmas' stressful alleged the The in have of Kosmas. operate Plaintiffs Cir. "when Garcetti into must a given statement, here (4th Stroman their official duties, discipline." the 156 Moreover, employer 461 U.S. difficulty proceedings, U.S. First Constitution and context of The 981 speaking from 410, the statements pursuant communications U.S. by and they recorded repeatedly brought all of these issues to Cervera's attention. Compl. K 48.7 They contend that they expressed their concerns about Kosmas of "the Team," safety id. risks H 85, attendant to to their superiors because her and their potential performance effect on on the "the safety and well-being of citizens of the City of Virginia Beach." Id. Taking the allegations have the trust of her numerous occasions, stress, Given in the Complaint as nature only to of other the officers, whom VBPD officers threat, did not and struggled, highly dangerous situations. See, e.g., the Kosmas H 95. on with comporting herself appropriately in high- work that a are but also sworn to serve as alleged in the Complaint, id. SWAT performance issues create a serious risk of not true, fellow SWAT Team members SWAT to HH 36, 41-42. Team does, such injury or even death, members of and protect. the public, That type of implicates issues of concern to the public. Furthermore, that all of the official duties" U.S. it is not Plaintiffs' as clear on the speech was face made of the "pursuant supervisory SWAT Team officers. Complaint to their Garcetti, 547 at 421. Although the Plaintiffs raised some of their concerns about Kosmas through so-called "performance notes," see Compl. 1111 26, 31, which presumably were part of the Plaintiffs' official 7 The fact that the Plaintiffs did not express their views publicly, but rather within the confines of the VBPD, is not dispositive. Garcetti, 547 U.S. at 420 (noting that "[e]mployees in some cases may receive First Amendment protection for expressions made at work"). 16 duties as stage is of Kosmas' superior court against the record at this early insufficient to allow the court to determine whether all the Plaintiffs' the officers, is speech regarding Kosmas was thusly made. mindful "attempt[s] Connick, 4 61 of to U.S. at the Supreme Court's While admonition to guard constitutionalize the employee grievance," 154, at this stage of the pleadings, the Plaintiffs have plausibly alleged that their speech was of public concern, thereby implicating constitutional protection, which is all that is required for purposes of a motion under Rule 12(b)(6). See Iqbal, 556 U.S. Indeed, are that protection. F.3d the facts of comparable found 1315 at 678. to other public First, (4th Cir. of supervising sheriff The employee discrimination, 1996), spoke which that to a law an expression of personal employment dispute," spoke as merited private a of single and citizens 17 of Fourth First Circuit Amendment complaint to carry out its Importantly, the entitled to an at racial about the vital public "the letter was employee therefore 88 their Id. systemic concern disgruntled to concern. of of from officers public allegations expression sheriff's office the letter the enforcement mission effectively." Id. at 1325-26. not which letter matters detailed "prompted the in speech African-American letter, inability of decisions the Fourth Circuit held in Cromer v. Brown, association 1326. this case as set forth in the Complaint about authors First of a the Amendment protection, rather than as public employees. Id. at 1326. Second, Ridge the Fourth Circuit concluded in Goldstein v. Volunteer Fire Co., 218 F.3d firefighter's complaints about as well as 337 (4th Cir. 2000), Id. at 354. Amendment protection, complaints, which favoritism, and dealt and with other 2007), the complaints calls" in Campbell Fourth Circuit "that male and that of her gender "raise[d] the public." address an v. Galloway, that of a officers' F.3d 367 F.3d (4th Cir. 258 police back her up officer's on dangerous issues that would be of genuine concern to Because the the female officer sought to department First Amendment, As a point of contrast, 685 were inappropriate conduct because proceed with her claim for retaliation. Arthur, policy, and female seeking a resolution of her own complaint," the internal other matters" 483 did not subject to affecting was protected under which merited firefighter's "matters found Id. at 269-70. issue were matters Id. at 353. officers she was the employment-related therefore not of public concern. Finally, a The Fourth Circuit was careful to distinguish between matters of training and safety, First that inadequate training and equipment, unsafe procedures during emergency calls of public concern. Chestnut (4th "as much as she was the officer's speech and she could therefore Id. at 270. the Fourth Circuit found in Brooks v. Cir. 2012), that two corrections complaints of racially disparate treatment by superiors 18 were not of the foregoing officers public on concern. cases the Id. from grounds at the that "personal dissatisfactions" 373. The panel distinguished complaints their of the complaints corrections recounted "poor personal and depicted merely chemistry in the workplace," not expression on a "constitutional plane." Id. at 372-73.8 Here, officer's although conduct, the Plaintiffs' they do appear complaints to be focused on concerned with the one SWAT Team's ability to carry out its vital public mission effectively. They allege that safety hazard, H 71, and imperils be Kosmas' on the SWAT favoritism the public about crosses welfare, the a . . . then matter." line the Brooks, to reveal this matter to be no more the public 685 created than a Compl. point that would rightly F.3d Plaintiffs and Kosmas clearly did not get along, yet Team both for the public and her fellow officers, " [i] f concerned presence at 375. The and discovery may a "quintessential employee beef" unencumbered by constitutional significance. Haynes v. 2007). City However, of for Circleville, purposes 474 of F.3d Rule 357, 12(b)(6), 365 the (6th Cir. Plaintiffs have plausibly alleged that their speech touched on a matter of public concern, thereby satisfying the first prong of the McVey test. 8 Importantly, the matter in Brooks came to the Fourth Circuit on appeal from an order granting summary judgment; at that postdiscovery stage of the proceedings, there was a more detailed record with which the content, form, and context of the employees' statements could be examined. Id. at 19 370. 2. Balance of Employee and Employer Interests The court must determine next assess whether the Plaintiffs' interest interest providing public. in McVey, interests, 157 the employee's speech, agency, and mission of 388-91) . This are numerous in plausibly expression effective at "must take extent agency." is an to into which Id. at inherently factors superiors, the efficient In the that may (2) impaired operation of of (6) undermined or to the the 278 responsibilities the context of the disrupts the operation (citing Rankin, as Ridpath v. (citing McVey, of 157 which Governors, F.3d at or the there impaired discipline among co-workers, that (5) (7) was the (9) VBPD the Plaintiffs' 292, 278). Many of 317 these with the inquiry into whether the Plaintiffs' not a (4) impeded the with at communicated invoked F.3d but (3) had interfered of 447 20 and at speech (1) (8) conflicted with the employees, accountability and U.S. including, duties, mission, in private, 483 and relevant, harmony Team VBPD's public Bd. to competing fact-specific • inquiry, be Plaintiffs' SWAT the co-workers the Defendants' these detrimental impact on close working relationships, performance that services weighing account it limited to, whether the Plaintiffs' by outweighed and 277. alleges including the employee's role in the government the the second prong under McVey and Complaint F.3d court the large, publicly Plaintiffs' authority roles (4th the and entailed. Cir. factors 2006) overlap expression regarded a matter of public concern. In the instant case, example, that the superiors about the Plaintiffs officers. that, concerns Kosmas' the maintenance of efficient the from Plaintiffs deficiencies discipline, Moreover, the nothing in the Complaint indicates, as a brought SWAT hurt workplace carrying out their to officer morale, duties as operation. complaints Considering speech at this early stage of interfered the or impeded supervising with context of the proceedings, their impaired the Defendants have not suggested how, Plaintiffs' for or even the the VBPD's Plaintiffs' the Plaintiffs may ultimately be able to show that their interest in expressing their views outweighed the Defendants' interest in the efficient operation of the SWAT Team or the VBPD at large. On the other through discovery, hand, the once and that, That a result therefore, of the but is proceedings. See court's best determination discipline when the complaint did not of the test, and be 157 that support Plaintiffs F.3d is airing SWAT Team, at plaintiff Rule 278-79 stated were their complaints, they received was in developed the inference that assessed under addressed McVey, record and specifically the the determination may not Motion, factual evidence might the operations of the VBPD, impaired as the this 56 justified. Rule 12(b)(6) summary judgment (affirming district a retaliation claim "resolve on its face" the second prong remanding for 21 the "record [to be] better developed"). At the Rule 12(b)(6) stage, the Plaintiffs' allegations warrant the inference that their free speech interests outweigh the detrimental effect, if any, had on the Accepting Complaint SWAT Team and VBPD. as reasonable true and factual have possibility that See, Francis 2009) (quoting Plaintiffs interest in promoting failed the v. court of 588 U.S. the outweighed efficient the provision in of all the a their 193 sheer favor. (4th Cir. Accordingly, the juncture, Defendants' of the that say 186, 678) . this in benefit than tips F.3d at at the more interests Giacomelli, 556 allegations cannot demonstrate sufficiently shown, speaking the Plaintiffs the to balance Iqbal, have the inferences, Plaintiffs e.g., giving their grievances may have public that their interest services, in thus satisfying the second prong of the McVey test. 3. Causal Relationship Finally, the establish that Plaintiffs must allege sufficient their protected speech was a facts to "substantial factor" leading to the adverse employment actions taken against them. See McVey, that 157 the F.3d 277-78. Defendants expression, proximity at but to were also suggest that a The Plaintiffs aware of there causal their was must engaging "some connection" allege in degree between Rectors & Visitors of George 22 Mason Univ., 411 only protected of the speaking out about Kosmas and their being disciplined. v. not temporal Plaintiffs Constantine F.3d 474, 501 (4th Cir. 2005). In addition to the showing of temporal proximity, the Plaintiffs must also plead factual allegations supporting the inference that their "protected speech was a motivating factor or played a against 323 substantial them by (4th Cir. F.3d 183, been 2003) 193 requirement have the is role (4th Cir. 'but for' Ridpath, Governors, voiced their case, F.3d to the time that Kosmas F.3d No. the 3 07, 2, 31 causation protected expression must adverse employment (quoting (4th Cir. "[d]uring the course of Kosmas' Dist. taken the 318 their 327 Ultimately, Complaint to Jenney, v. action" the of at 1140 the concerns in that adverse Marion Sch. 1994)). cause 902 F.2d 1134, this 447 the Peters (citing Hall v. "'rigorous' the inducing Defendants. alleged." In in Huang v. action Bd. of 1990)). alleges that supervisors, the Plaintiffs including Cervera, time on the SWAT Team," leading up filed her EEOC Charge of Discrimination, on August 7, 2012. Compl. 111) 48-49. It was not until more than two years later that ostensibly for HH 56-68. inference a and the that a Constantine, Poverty in their role Such expression Cervera suspended in "lengthy time Additionally, Valley, a lapse" meted connection 411 F.3d at 501 Roanoke fomenting discipline causal each out of the hostile workplace. between tends exists Plaintiffs, to the protected "negat[e] between Id. the any two." (quoting Dowe v. Total Action Against 145 F.3d 653, 657 (4th Cir. 1998)). the Complaint acknowledges that Cervera informed the 23 Plaintiffs that they were being disciplined for their awareness of and failure to sexual, stop subordinates racial and/or from religious "engaging in behaviors in inappropriate the form of statements and physical gestures." Compl. UK 57, 61, 65. Nevertheless, the suspensions merely the Plaintiffs claim that the reasons cited for — sexual "pretextual," discrimination and the Defendants' true motives were lesser alerting when Defendants to they . . . had [Kosmas'] to the safety of members." Taking this H 71. stage of the proceedings, was, in fact, Plaintiffs allegation to be the in SWAT true at this speech the the gap brought Complaint of more their vis-a-vis the supports than concerns 327 F.3d at 323. the two to inference years between Cervera, and that the when the when they was that the Defendants changed their Plaintiffs, after Kosmas suit against them in 2014. Compl. KU 51-55, 87, hand, for it suggests that the Plaintiffs' received their suspensions, positions vocal a "motivating factor" behind the Defendants bringing Moreover, for been the public and her fellow disciplinary charges against them. Peters, reason not unsuitability Team and her threats Id. Id. similarly situated received either zero discipline discipline the concerns." to The Plaintiffs support this claim with the allegation or their were UK 87, " [o]thers raising — against that for harassment "retaliate 98. Plaintiffs and filed her civil 98. On the other once the factual record is developed through discovery, 24 the evidence may well show that the Plaintiffs were disciplined for precisely the reasons set forth in the charging memoranda provided to each of At them. the Rule 12(b) (6) stage, however, the Plaintiffs' allegations warrant the inference that their engaging in protected expression was a "substantial factor" to suspend them. Complaint's factual their See McVey, allegations inferences, protected suspensions, as the 157 in the Defendants' F.3d true, at and allowing Plaintiffs have speech was the 277-78. decision Accepting all the reasonable sufficiently alleged that "but for" cause of their satisfying the causation requirement under the third prong of the McVey test. 4. Conclusion Under the McVey Factors At this juncture, the Plaintiffs have sufficiently pled retaliation claims arising under the First Amendment to the United States Constitution and Article I, Section 12 of Virginia by properly alleging that (1) their complaints about Kosmas regarded a matter of public concern; speaking on such a matter was interest public; in and Defendants' Motion is providing (3) their decision DENIED (2) their interest in not outweighed by the effective speech of the Constitution and was to suspend with respect a them. to Complaint. 25 efficient services substantial Therefore, Counts II Defendants' factor the and to the in the Defendants' III of the C. Count IV — Deprivation of Property Without Due Process Count IV of the Plaintiffs' Fourteenth contend to property H 102. interest the they Procedural Compl. a claim for violations of right to procedural due process guaranteed by the employment" Officers seq. Complaint asserts Amendment Plaintiffs public the have by United a property virtue Guarantee They when they of Act, argue States Constitution. interest Virginia's Va. Code Ann. suspended, "continued Law-Enforcement that they were were in The §§ 9.1-500 deprived and they et of that did not receive due process of law prior to such deprivation. Id. U 103. In order to state a claim for deprivation of property without due process, the Plaintiffs must sufficiently allege that (1) they have a constitutionally protected property interest, and have been deprived of that interest by state action. See Stone v. Univ. Bd. of Md. of Regents Plaintiffs determine Stone, U.S. Med. 855 532, can what Sys. v. Corp., Roth, assert these process (1985). F.2d 167, U.S. 564, elements, Cleveland Bd. If 172 then (1972). the was they 1988); If court it was provided. of Educ. adequate process (4th Cir. 569-70 is due and whether F.2d at 172; 541 408 855 (2) the must See v. Loudermill, 470 not provided, the deprivation is illegal. Loudermill, 470 U.S. at 541. A constitutionally protected property interest arises when an individual is "entitled to a benefit source independent of the Constitution, 26 created and defined by a such as state law." Huang, 902 F.2d at have 1141 alleged, provisions (citing Roth, and under property right Furthermore, the 408 U.S. at do not Defendants Virginia Code §§ party et create with the seq. the a VBPD SWAT Team. that the Plaintiffs VBPD SWAT the Plaintiffs have adequately alleged a deprivation of step of the inquiry court and must determine therefore whether Team were Therefore, The as that from interest. employment Plaintiffs suspended a property their disputes The dispute, 9.1-500 in continued employment neither 577). officers. turn to the the final Plaintiffs have sufficiently pled that they were not provided due process. At rise a to threshold the level, claimed the same property Virginia interest, statute also that sets forth procedures which must be followed prior to dismissing, suspending, or transferring for punitive gives the demoting, reasons, a law- enforcement officer employed by the Commonwealth of Virginia. Code Ann. §§ 9.1-500 et seq. The Plaintiffs do not allege that the Defendants failed to comply with any of of these that procedural the process Defendants were disciplinary charges out along discrimination to the express requirements However, them the was Plaintiffs deficient "motivated by self-interest and bias" ostensibly arose defendants, provisions. afforded suit. against of with Id. them. Compl. Cervera and the the HH Va. 27 108. because the in bringing This bias City being named as Plaintiffs, 106-07. H assert Because in Kosmas' Cervera was co- gender not an impartial decision disciplinary fundamental maker, proceedings fairness" the Plaintiffs against contend that the were entirely "lacking therefore, and, them they did receive not in due process prior to being suspended. Id. H 108. The court agrees at maker is Dept. of an essential the outset that element of due "[a]n impartial decision process." Bowens Human Res. , 710 F.2d 1015, 1020 (4th Cir. Goldberg v. 271 (1970)). decision makers integrity, Kelly, 397 "are and U.S. entitled absent a 254, to a showing presumption of bias v. 1983) N. C. (citing Administrative of honesty stemming from and an extrajudicial source, they are not constitutionally precluded from making the determination that they are directed to make by their employer." Cir. 1984) Morris v. City of Danville, (citations omitted). overcome by demonstrations of other influences Webb, 783 Larkin, F.2d than 1163, the 744 F.2d 1041, "This 'extrajudicial' investigative 1166 (4th Cir. the Plaintiffs specifically Cervera, they were named as HH 106-07. The were have Plaintiffs biased against disciplinary proceedings against liability to Kosmas. Id. be stemming from (citing that Boston v. Withrow v. that the the Defendants, the Plaintiffs because in Kosmas' contend only 744 F.2d at 1044)). alleged co-defendants bias can involvement." 1986) 421 U.S. 35, 55 (1975); Morris, Here, presumption 1044 (4th civil suit. Defendants Compl. instituted them in order to minimize their H 107. 28 It is plausible that, as co- defendants to a lawsuit investigative process, outside of the VBPD's Cervera and, by extension, internal the City, could be motivated to reduce their liability to Kosmas by throwing the Plaintiffs under the metaphorical bus. Complaint supports such an Indeed, inference; although complaint with the EEOC in August 2012, brought suit, in February 2014, the timeline in the Kosmas lodged a it was not until after she that the VBPD launched its investigation into the Plaintiffs' behavior. Id. UU 49-55. The Defendants source other participating Bowens, state than "any alleged bias knowledge in the F.2d 710 that case.'" at 1020). [the Defendants] Defs.' But is Mem. in so not 'from a acquired Supp. at arguing, 21 the from (quoting Defendants appear to conflate the VBPD's internal investigation into Kosmas' allegations of discrimination and harassment, civil suit against the City, Cervera, the with her bringing a Plaintiffs, and other supervisory officers of the SWAT Team. The "case," as used in this area of jurisprudence, process, facts. not See Boston, requirement because stage to any the of added)); of refers to the administrative investigative lawsuits 783 an F.2d at impartial ultimate employee's 744 discharge 1166 or is was at at an 1045-46 earlier 29 the same not violated involved administrative F.2d of set of (noting that the "due process tribunal decisionmaker investigative Morris, that arise out in an proceedings" (police stage chief of simply earlier (emphasis who sought disciplinary proceedings was not biased in later stage); Bowens, 710 F.2d at 102 0 (committee member who voted to suspend dentist was not biased despite having written a letter critical of a prior administrative settlement agreement between the dentist and the agency); v. City of Gastonia, curiam) was 392 F. App'x 197, 204-05 (4th Cir. Harrell 2010) (per (city manager who presided over post-termination hearing not biased simply by virtue of being employed by the entity that previously threat of internal terminated liability employee). therefrom, investigation, which are Kosmas' lawsuit, separate commenced only from after and the the VBPD's Kosmas filed her lawsuit. The internal investigation is the relevant "judicial" proceeding comes in this from another analysis, source — and Cervera's Kosmas' "extrajudicial" lawsuit. bias In other words, the threat of liability and possible damages from the lawsuit arguably influenced Cervera's investigation and actions in the during resulting the subsequent disciplinary internal charges and actions against the Plaintiffs. Accepting the allegations in the Complaint as true and giving the Plaintiffs the the Plaintiffs benefit have of all reasonable sufficiently alleged that in bringing disciplinary charges against them, factual inferences, Cervera was biased thus rebutting the presumption that he acted impartially. Accordingly, the Plaintiffs have stated a violation of claim for deprivation of the Due Process Clause of 30 a property interest, the Fourteenth Amendment in to the United States Constitution. The Defendants' Motion is, therefore, DENIED with respect to Count IV of the Complaint. D. Count V — Deprivation of Substantive Due Process Count V investigated voicing of the and Complaint alleges subsequently their legitimate that when disciplined complaints about the the Defendants Plaintiffs Kosmas, the for Defendants deprived the Plaintiffs of their right to substantive due process, also guaranteed by the Fourteenth Amendment Constitution. The "amounted egregious and arbitrary conscience," and "were corrupt shocks to the Plaintiffs claim that to the United States the Defendants' governmental actions conduct and amounted to that abuses of governmental power," Compl. UU 114-15, and, therefore, they are entitled to relief. Whether the Plaintiffs have stated a claim turns considered on whether "fundamental" of Hopewell, 7 F. If Amendment shields Nicholas v. If the the interest a interest the is of is not being Constitution. 638 from the State Univ., interest (E.D. City (citations then the Fourteenth "arbitrary or irrational of F.3d 133, fundamental, is 2014) adequacy 227 deprived Copenny v. Va. fundamental, plaintiff regardless Penn. under Supp. 3d 635, omitted). deprivation, the property substantive due process procedures 142 however, (3d Cir. "the action is entirely outside the ambit of substantive used." 2000). governmental [due] process and will be upheld so long as the state satisfies the requirements 31 of procedural due process." to have addressed employment is not this a Id. The majority of courts of appeals issue have fundamental held that property continued interest entitled substantive due process protection. Guthrie v. 5494457, at (collecting cases). Circuit, though it has not squarely addressed the issue, that *6 n.9 " [i]t is (W.D. Va. doubtful 2012) that" a public public McClaskey, to 2012 WL The Fourth has said employee's continued employment "is a right properly subject to substantive due process review." Huang, to his 902 F.2d at 1142 n.10. position, contract right, Constitution." U.S. 214, "if not Id. it a fundamental (1985) finds that employment, is (citing Regents 229-30 therefore exists, essentially interest Univ. (Powell, the The public employee's right J., of a state embodied Mich, the Ewing, v. in 474 concurring)). Plaintiffs' uninterrupted by disciplinary law The interest in suspensions, court public is not a fundamental interest meriting substantive due process protection. Moreover, a even if the Plaintiffs had alleged the existence of fundamental right, they have failed to allege conduct "so egregious, so outrageous, that it may fairly be said to shock the contemporary Hawkins (4th Cir. 523 U.S. Kosmas conscience." 1999) 833, filed discrimination (en banc) 847 her and n.8 Freeman, 195 F.3d 732, 738 (quoting County of Sacramento v. Lewis, (1998)). civil v. suit harassment, The in the 32 Plaintiffs contend that after 2014, alleging VBPD commenced gender-based an internal investigation and, later, disciplinary proceedings against Plaintiffs in which Cervera was named as the complainant. the Compl. UU 54-55. After allowing each Plaintiff to respond to the charges, the VBPD suspended Willis for only forty hours, and Wilkerson and Shattuck for which Plaintiff resumed his only twenty hours full each, duties with the 68. It may have been ill-advised for Kosmas' but civil suit, such "involves a to conflict abusing after VBPD. Cervera, Id. time each UU 60, 64, a co-defendant in issue the Plaintiffs' suspensions himself, of below conduct employing it interest executive is power, far or that as an instrument of oppression," as required to state a substantive due process claim. Hawkins, 195 F.3d at 742 (internal quotation marks omitted); see also Copenny, [defendant's] actions constitutional"). 7 F. Supp. 3d at 639 need Accordingly, not be ideal (noting that "the in order for the foregoing reasons, to be Count V of the Complaint is DISMISSED for failure to state a claim upon which relief can be granted. E. Count VI - Deprivation of Liberty Without Due Process Count Plaintiffs' VI of right the to Complaint procedural due asserts violations process of guaranteed Fourteenth Amendment to the United States Constitution, by the the but unlike Count IV, Count VI alleges that the Plaintiffs were deprived of a liberty interest. disciplinary Specifically, actions taken the against 33 Plaintiffs them contend "placed a that stigma the on Plaintiffs' rights reputations, violators, branding them as boorish and crude civil and undermining their future employment opportunities." Compl. U 118. Injury to reputation protected by the Due 226, 233 (1976)). state (1991) action plaintiff's] a due F.3d Underpinning cannot v. 'distinctly the 573 (4th this reasons Cir. rule Thus, for 2012) is an F.3d 642, 903 F.2d 996, deprivation that the 999 of charges reputation; (2) conjunction liberty against with false." Id. at U.S. [is] or 693, U.S. 708-09 accompanied by a her U.S. Coast 424 that a "freedom to [the Guard, U.S. at public take 673 711). employer advantage of Bd. of Regents v. Roth, discharge, a 408 U.S. Fourteenth Amendment Sciolino v. City of Newport News, 2007) 1990)). [their] (1) termination the Plaintiffs placed a or (citing Stone v. Univ. 34 Morris, In order to state a claim for interest, [them]: (citing Johnson v. allege [their] (3) were made in demotion; of Md. "must stigma on were made public by the employer; 646 500 extinguished' Paul, concept (4th Cir. (4th Cir. a Gilley, interest when a public employer publicly announces employee's 645-46 liberty 424 v. (citing the liberty interest is implicated. 480 Davis, Shirvinski an employee of (1972). a Siegert v. altered other employment opportunities." 564, not such as an adverse employment action, claim arises. deprive Clause. Paul legal status," 315 is when "reputational injury that process 308, Process (citing However, alone and Med. (4) Sys. were Corp., 855 F.2d 167, sufficiently framework, hearing" 172 n.5 allege then (4th a Cir. 1988)). protected they are If liberty entitled to a the interest so-called under can this "name-clearing to allow them the opportunity to refute the accusations against them Gastonia, and repair F. App'x 392 (citing Sciolino, their 197, 480 reputations. 203 (4th F.3d Cir. at Harrell v. 2010) (per 649). of a hearing opportunity to at the refute which the public of curiam) "the rather it is the dismissed charge." City Ultimately, constitutional harm is not the defamation itself; denial Plaintiffs employee Sciolino, has 480 an F.3d at 64 9 (internal quotation marks omitted). In the present disciplinary case, proceedings they branded them as hostile toward alleges that misconduct, pretext and for legitimate stigmatized Compl. Plaintiffs that Plaintiffs perpetrators women. the the the retaliating grievances U of denied disciplinary against work alleged Kosmas. environment that all the UU is Complaint allegations were Plaintiffs Id. the because proceedings the that reputations Furthermore, flatly against their a 118. have 58, merely for 62, of a airing 66, 71. Accepting the allegations in the Complaint as true and giving the Plaintiffs the benefit of all reasonable factual inferences, the court cannot say that the Plaintiffs have not sufficiently alleged that the disciplinary charges were false and cast an unwarranted stigma on their reputations as VBPD officers. 35 The Plaintiffs have, therefore, test. satisfied the See Sciolino, first and fourth prongs of the Sciolino 480 F.3d at 646. The second and third prongs under Sciolino are not so easily met. The Plaintiffs state that the charges against then "were made public by Defendants," yet they offer support this conclusion. Id. the type of action" does not can grant relief. state Iqbal, factual allegations to U 119. This unsupported assertion is " [t] hreadbare recital [] that no a 556 of cause U.S. the elements of a cause of of at action 678. on which the court The allegations in the Complaint refer to statements and comments made only in internal memoranda, private during attended by order to the plead made public, general that the conversations, public. At the disciplinary the Plaintiffs and Rule meetings 12(b) (6) charges "must allege at against not stage, them in were (and ultimately prove) a likelihood that prospective employers ... or the public at large will the inspect the file." Plaintiffs likely "must to request Complaint does the not Sciolino, allege file meet that from" this F.3d at 480 [a] prospective the VBPD, standard, 650. the Additionally, employer id. , and because Plaintiffs have is the not sufficiently pled the second prong of the Sciolino test. Moreover, that if the Plaintiffs the disciplinary charges against they have third even not prong of been the "terminated Sciolino or test. 36 had sufficiently them would be demoted," as "Publication alleged made public, required by of the stigmatizing charges alone, does not employment,' Morris, at without liberty in interest, plaintiff's] to 'tangible invoke the due 903 F.2d 996, 701) . Thus, damage 999 (4th Cir. order to there must employment 1990) state a have status." process clause." such been for 424 U.S. deprivation "some damage the Plaintiffs Here, transfers, pay opportunities of employment," Compl. at 678. The this Plaintiffs nor have they alleged that the facts as Plaintiffs' relevant Team. Id. alleged employment times UU [the allege but lost and many other benefits "conclusory statement[]." have not been Iqbal, terminated or the status has Complaint not supervisory The indicate changed; officers Plaintiffs 556 demoted, their salaries have been cut. in remained 1-4. a U 120, yet offer no concrete allegation or explanation to support U.S. of to that they have "suffered not only short-term suspensions, promotions, as Johnson v. (quoting Paul, claim Id. interests Indeed, that the they have at all with therefore the have VBPD failed SWAT to sufficiently allege that the disciplinary charges were made in the context of a discharge or demotion, and thus have not met the third prong under Sciolino. The Plaintiffs deprivation of facts a sufficient Sciolino test. have liberty to meet Accordingly, not properly interest because the second and stated a they have third claim not prongs for alleged of the Count VI of the Complaint is DISMISSED for failure to state a claim upon which relief can be granted. 37 IV. SUMMARY For the foregoing reasons, under Plaintiffs' claim for deprivation of substantive due process under V) Fourteenth is DISMISSED; liberty also DENIED and interest Fourteenth is Amendment DISMISSED. Plaintiffs' respect free the Complaint, the to the However, to speech the (Count United Plaintiffs' without Amendment with to law the Counts claim the Plaintiffs' due States and and III with DISMISSED; Constitution for (Count Motion the to of under Constitution of the deprivation process Defendants' II claims, is States procedural United I) claim for wrongful suspension the Virginia the Plaintiffs' the (Count Dismiss Complaint, respect to Count a IV VI) is the of claim for deprivation of a property interest without due process. The Clerk is DIRECTED to send a copy of this Memorandum Opinion and Order to counsel of record for all parties. IT IS SO ORDERED.9 N Rebecca Beach Smith Chief United States District Judge '-W REBECCA CHIEF March \t>. BEACH SMITH JUDGE 2015 9 For reference purposes, an Index of this Memorandum Opinion and Order is attached. 38 INDEX I. FACTUAL AND II. III. STANDARD OF PROCEDURAL BACKGROUND REVIEW 2 6 ANALYSIS 9 A. Count I - Wrongful Suspension in Violation of Virginia Public Policy 9 B. Counts II and III - Retaliation Under Article I, Section 12 of the Virginia Constitution and the First Amendment to the United States Constitution 12 1. Speech on a Matter of Public Concern 14 2. Balance of Employee and Employer Interests 20 3. Causal Relationship 22 4. 25 Conclusion Under the McVey Factors C. Count IV - Deprivation of Property Without Due Process 26 D. Count V - Deprivation of Substantive Due Process 31 E. Count VI - Deprivation of Liberty Without Due Process IV. 33 SUMMARY 38 39
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