Flanagan v. Scearce

Decision Date23 August 2021
Docket NumberCivil Action 7:19-cv-00413
CourtU.S. District Court — Western District of Virginia


After the Pittsylvania County Department of Social Services (“DSS”) Board voted to remove her as DSS Director, Plaintiff Sherry Roberts Flanagan sued Defendant Ronald Scearce, a member of the DSS Board and the Pittsylvania County Board of Supervisors.[1] In a nutshell Flanagan alleges that Scearce violated her federal constitutional rights by orchestrating a public smear campaign about her stewardship of the DSS and terminating her for speaking publicly about this perceived mistreatment.

The matter is currently before the court on Scearce's motion for summary judgment on Flanagan's claim that she was wrongfully terminated in retaliation for First Amendment expression, in violation of 42 U.S.C. § 1983 (Count II) and Flanagan's claim alleging a deprivation of due process in conjunction with her termination, in violation of 42 U.S.C. § 1983, against Scearce in his individual capacity and in his official capacity as a then-member of the DSS Board (Count III).[2] In support of this motion, Scearce contends that Flanagan has failed to present sufficient evidence to support the elements of her First Amendment retaliation and due process claims. Alternatively, Scearce argues that the doctrine of qualified immunity bars Flanagan's due process claim.

Because Flanagan has failed to establish that Scearce made actionable public statements about her at the time of, or in close temporal proximity to, her August 30, 2018 termination, she has not established a key element of her due process claim. But even if Flanagan had satisfied this element, qualified immunity would shield Scearce from personal liability for this due process claim. The court will therefore enter summary judgment on this claim.[3]

The court, however, concludes that Flanagan has satisfied the elements of her First Amendment retaliation claim. Flanagan has presented sufficient evidence that the speech she gave two weeks before her termination was the determinative factor in Scearce's-and the DSS Board's-decision to fire her, such that a reasonable jury could return a verdict in her favor. The court will therefore deny summary judgment on the First Amendment retaliation claim. That claim will be decided by a jury.[4]

I. Background

In 2006, Flanagan was hired as a DSS Supervisor for Pittsylvania County Department of Social Services. In 2009, she was promoted to DSS Director, a position she held until the DSS Board voted to terminate her on August 30, 2018.

Pittsylvania County governs itself through an elected seven-member Board of Supervisors, of which Scearce is a member. During the events giving rise to this lawsuit, Scearce also served as a member of the DSS Board, until the Virginia Social Services Board suspended him in December 2018. Scearce then permanently vacated his seat on the DSS Board, but he remains a member of the Board of Supervisors.

A. Procedural History

Following her termination, Flanagan commenced this lawsuit against Pittsylvania County, Nancy Eanes, Patricia Evans, Andrea Johnson, Henry Hurt, William “Vic” Ingram, and Scearce. Flanagan's amended complaint included three claims: (1) defamation and defamation per se against Scearce, Hurt, and Ingram (Count I); (2) First Amendment freedom of expression retaliation and wrongful termination against the county, Eanes, Evans, Johnson, and Scearce (Count II); and (3) deprivation of Fourteenth Amendment liberty interests without due process of law against the county, Eanes, Evans, Johnson, and Scearce (Count III). (See Am. Compl. [ECF No. 26].)

Defendants thereafter filed a motion to dismiss for failure to state a claim. (See ECF Nos. 31, 33, 34.) On May 27, 2020, the Honorable Glen E. Conrad, Senior U.S. District Judge, granted the motion to dismiss for all claims with respect to defendants Hurt, Ingram, Eanes, Evans, Johnson, and the County.[5] See Flanagan, 2020 WL 2754754, at *10. Senior Judge Conrad likewise dismissed the defamation claim against Scearce. Id. Following these dismissals, just two of Flanagan's claims against Scearce remained: (1) deprivation of liberty interest and (2) First Amendment retaliation.[6]

Scearce then moved for partial summary judgment on the deprivation of liberty interest claim, arguing only that Flanagan failed to establish that she suffered the requisite stigma to her reputation. See Flanagan v. Pittsylvania Cnty., Va., No. 7:19cv413, 2020 WL 4937126, at *1-2 (W.D. Va. August 24, 2020). Senior Judge Conrad denied this motion on August 24, 2020, finding that Flanagan demonstrated sufficient reputational injury because of the difficulty she experienced finding a new job and the $25, 000 pay cut she was forced to accept as a result. Id. at *2-3. Scearce now moves for summary judgment on the deprivation of liberty interest (on different grounds) and First Amendment retaliation claims.

B. Organizational Structure of DSS

A basic understanding of the structure of local social services departments in Virginia provides valuable context in this case. Under Virginia law, the Commissioner of Social Services and the State Board of Social Services supervise all local social services departments. See id. Local social services departments are also overseen by local boards whose members are appointed by their respective county's governing authority from a list of candidates provided by the Commissioner. Id. at *4.

Virginia law establishes two types of social services boards: Administrative and Advisory. (See ECF No. 101-1 at 22.) Administrative boards, like the DSS Board in Pittsylvania County, have greater autonomy over their budgets and internal affairs than Advisory boards.[7]Administrative boards have the authority to appoint a director of social services to manage the day-to-day operations in the local department, review the director's performance, and terminate a director when necessary. (See ECF 101-1 at 25-27.) But [b]eyond the power to appoint local directors, ‘municipalities have no control over the operations of local social services boards or departments'....Simply stated, local boards report to the Commissioner and State Board, not to counties.” Flanagan, 2020 WL 2754754, at *4 (quoting Wolf v. Fauquier Cnty. Bd. of Supervisors, 555 F.3d 311, 322 (4th Cir. 2009)).

DSS was under the supervision of an Administrative board during Flanagan's tenure as director. According to Flanagan, Scearce “endeavored to convert the [Pittsylvania County Department of Social Services] into an Advisory Board and, in so doing, increase the control that the Board of Supervisors, of which he was also a member, could exercise over DSS. (Pl.'s Mem. Opp'n Mot. Summ. J. 4 [ECF No. 101].)

C. Factual Background

In August 2017, Scearce attended a walk-through of DSS in his capacity as a new DSS Board member. During the tour, he introduced himself to the employees and handed out business cards. In early 2018, Scearce apparently started receiving complaints from DSS workers regarding workplace conditions. Based on these complaints, Scearce began to believe that Flanagan maintained a “hostile work environment.” (ECF No. 86-5 at 5.)

On February 20, 2018, the chairman of the Pittsylvania County Board of Supervisors sent a letter to the DSS Board chairman expressing concerns about the workplace conditions at DSS and asking the DSS Board to conduct an independent investigation into the matter. (Id.) Members of the DSS Board conducted recorded interviews of DSS employees and later held a public session of the board on April 3, 2018, for members of the public to voice their concerns. (Id. at 5-6.) While some employees expressed concerns about the environment at DSS, others spoke positively about their experience with DSS and about Flanagan's management. (Id. at 6.) On April 16, 2018, the DSS Board accepted an offer by the Virginia Department of Social Services (“VDSS”) Commissioner to conduct an organizational assessment of the DSS. (ECF No. 101-13 at 3.) On June 25, 2018, this investigation concluded that there appeared to be a “positive work environment” at the DSS and that the department was complying with all state laws and regulations. (See id. at 1, 39.)

During the period that VDSS conducted its investigation, Ingram was hired to move forward with an independent investigation into the environment at DSS and specifically Flanagan's management of the department.[8] Hurt, Scearce, and Ingram began communicating through e-mail[9] about, in Hurt's words, “the Flanagan mess.” (See ECF No. 101-5 at 331.) These e-mails typically shared proposed news stories written by Hurt, a freelance reporter, that detailed the DSS controversy. Scearce, Hurt, and Ingram also began posting about the “corruption” and mismanagement allegations against Flanagan and the DSS on social media and through news media.[10] Scearce encouraged their social media activity in May 2018 by sending an e-mail to the pair calling their posts “outstanding.” (ECF No. 101-5 at 239). He remarked in the same e-mail that he wished the posts “were moving the other board members in the right direction.” (Id.) Scearce emphasized in a later e-mail to Hurt that he “might want to put the pressure on Sherry [Flanagan] for the time being.” (Id. at 241.)

Scearce also sought to add certain individuals to the DSS Board. In “June or July of 2018 he nominated his “friend” Evans to sit on the Board. (See Dep. of Patricia Evans 10:4-5, 17:4-5, May 21, 2021 [ECF No 101-11].) According to Flanagan, Evans “was often commenting on Facebook in favor of what Mr. Scearce was doing, as well as commenting...

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