Garraghty v. Com. of Va., Dept. of Corrections

• Decision Date: 09 May 1995
• Docket Number: No. 94-1870,94-1870
• Citation: 52 F.3d 1274
• Parties: 10 IER Cases 977 David A. GARRAGHTY, Plaintiff-Appellee, v. COMMONWEALTH of Virginia, Department of Corrections; Edward W. Murray, individually and in his official capacity as Director of the Department of Corrections, Commonwealth of Virginia; Edward C. Morris, individually and in his official capacity as Deputy Director of the Department of Corrections, Commonwealth of Virginia; Richard A. Young, individually and in his official capacity as Regional Administrator, Adult Institutions, Western Region, Department of Corrections, Commonwealth of Virginia; Donald A. Zimmerman, individually and in his official capacity as Inspector General, Office of the Inspector General, Department of Corrections, Commonwealth of Virginia; Kenneth Moore, individually and in his official capacity as Investigations Supervisor, Office of the Inspector General, Department of Corrections, Commonwealth of Virginia; Paul Broughton, individually and in his official capacity as Head of Employee Relations, Department of Corrections, Commonwealth of Virginia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1274

52 F.3d 1274

10 IER Cases 977

David A. GARRAGHTY, Plaintiff-Appellee, v. COMMONWEALTH of Virginia, Department of Corrections; Edward

W. Murray, individually and in his official capacity as

Director of the Department of Corrections, Commonwealth of

Virginia; Edward C. Morris, individually and in his

official capacity as Deputy Director of the Department of

Corrections, Commonwealth of Virginia; Richard A. Young,

individually and in his official capacity as Regional

Administrator, Adult Institutions, Western Region,

Department of Corrections, Commonwealth of Virginia; Donald

A. Zimmerman, individually and in his official capacity

as Inspector General, Office of the Inspector General,

Department of Corrections, Commonwealth of Virginia;

Kenneth Moore, individually and in his official capacity as

Investigations Supervisor, Office of the Inspector General,

Department of Corrections, Commonwealth of Virginia; Paul

Broughton, individually and in his official capacity as Head

of Employee Relations, Department of Corrections,

Commonwealth of Virginia, Defendants-Appellants.

No. 94-1870.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 31, 1995.

Decided May 9, 1995.

ARGUED: Bradley Brent Cavedo, Shuford, Rubin & Gibney, P.C., Richmond, VA, for Appellants. James Broome Thorsen, Thorsen, Page & Marchant, Richmond, VA, for Appellee. ON BRIEF: Robert A. Dybing, Shuford, Rubin & Gibney, P.C., Richmond, VA, for Appellants.

Before ERVIN, Chief Judge, and MURNAGHAN and MOTZ, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge MOTZ wrote the opinion, in which Chief Judge ERVIN and Judge MURNAGHAN joined.

OPINION

MOTZ, Circuit Judge:

The district court denied various state officials qualified immunity for their role in discharging a warden, without affording him the benefits of the state grievance procedure or any hearing that included the right to confront and examine witnesses. We affirm in part, reverse in part, and remand for further proceedings.

I.

David A. Garraghty began employment with the Commonwealth of Virginia, Department of Corrections, in 1972. Eight years later, he became warden of Deep Meadow Correctional Center. He served there and then as warden at another Department of Corrections facility before he became warden at the Nottoway County Correctional Center in 1984. He held that position until he was discharged on September 25, 1992.

When Garraghty was hired, his position was among those entitled to the protection of Virginia's grievance procedure. See Va.Code Sec. 2.1-110 et seq. In 1985, however, the legislature enacted an amendment to the Virginia Personnel Act that specifically excluded wardens from its protection. See Va.Code Sec. 2.1.-116(16) (1985) (amended 1994). There was some evidence in the record that this amendment was known as the "Garraghty Bill" and was passed in reaction to Garraghty's criticism of various correctional policies. ¹ In any event, throughout this litigation Garraghty has asserted he had property interests, derived from the state grievance procedure, in the procedures themselves and in continued public employment and that he was deprived of these property interests without due process. Before addressing these issues, we set forth the events leading up to Garraghty's termination and the process that was provided to him.

On April 27, 1992, Gloria Williams, the personnel officer at Nottoway prison, met "unofficially" with Paul Broughton, the "head of employee relations," to discuss "an apparent pattern of harassment or retaliation" by Garraghty against Williams. The two discussed Williams' possible "options," i.e., complaining to Garraghty directly, to his supervisor, to the EEOC, or to other agencies. A few days after that conversation, on May 1, Williams sent a memorandum to Garraghty, complaining of "what [she] perceive[d] to be Sexual Harassment once again." ² Specifically, Williams asserted that since March 17, 1992 when Garraghty had placed his hand on her knee and received a negative response to his question to her " 'Do you want to mess around?' " Garraghty had been sending her "derogatory notes" concerning her "work and performance." On receipt of Williams' memorandum, Garraghty met with her to discuss her allegations, and then Garraghty himself reported them to Richard A. Young, a Regional Administrator for the Department of Corrections. Young, in turn, reported them to Edward C. Morris, the Deputy Director of the Department, who apparently reported the charges to Edward C. Murray, the Director of the Department of Corrections. Murray "ordered the Inspector General to fully investigate" the charges. Pursuant to his instructions, the Inspector General, Donald A. Zimmerman, interviewed Williams briefly to determine the nature of her allegations and then assigned an investigator, Kenneth Moore, to conduct an investigation of them.

On June 5, 1992, Moore filed a written report detailing his findings. That report indicates that Moore's investigation involved interviews with various employees of the Department of Corrections, including both Williams and Garraghty. Moore attempted to verify the information provided in these interviews and noted when documentary information was lacking or conflicted with an account he received in an interview. Moore concluded that some of Williams' claims were not true; for example, Garraghty's evaluations of Williams did not drop 22 points after her prior relationship with Garraghty had ended. However, Moore noted that Williams had contemporaneously told others that she was being harassed by Garraghty and a polygraph examination of Williams supported the essence of her charges that Garraghty had made sexual advances. Garraghty denied placing his hand "on any part of Williams' body in a sexual contact" or making "any serious sexual gesture or comments towards Mrs. Williams." He admitted, however, that he "could have ... made a statement to her," explaining, "[w]e make sexual comments within our group always, things that go on among people in the work place." Garraghty further asserted that Williams showed no "objection, anger, or disapproval." In addition, Moore's investigation uncovered complaints that Garraghty had engaged in sexual harassment of other persons in 1983 and 1985. The circumstances of the alleged 1983 harassment were similar to Williams' claim, ³ and the Administrator for Personnel and Training had determined that Garraghty's conduct, in connection with the 1985 allegation, "would be construed as a form of sexual harassment."

Moore's report was first reviewed by Inspector General Zimmerman, and then by Deputy Director Morris and Regional Administrator Young. On July 15, 1992, Morris and Young met with Garraghty and his attorney "to review the findings of the investigation." At the meeting, "Garraghty and his attorney were informed of the allegations, and invited to present evidence to support their version of the events in question;" however, Morris did not permit Garraghty to confront and examine any witnesses, not even Williams. On August 25, 1992, Morris again met with Garraghty and his counsel and advised them that he had decided to terminate Garraghty. This was confirmed by a letter of the same date from Morris to Garraghty that indicated that Garraghty's termination was effective September 25, 1992 and that he had the right to have "this decision reviewed by the Director of the Department of Corrections."

On September 2, 1992, Garraghty, by counsel, requested review of Morris' decision by Director Murray. In a letter dated September 28, 1992, Garraghty, by counsel, complained to Murray that he had not "had the opportunity to cross-examine Mrs. Williams or any witnesses on her behalf." On that same day, Murray met with Garraghty and his attorney, reviewed the allegations against Garraghty, and gave Garraghty an opportunity "to present his side of the events in question," but again Garraghty was given no opportunity to examine any witnesses. After that meeting, Murray examined the "investigative reports of the Inspector General, the conclusions of Mr. Morris ..., [the 16 page] written response [to the report and Morris' letter] from [Garraghty's] attorney, and the information provided to [Morris] during [his] meeting [with Garraghty]." On October 30, 1992, Murray upheld the decision to terminate Garraghty and notified him of his right to appeal the termination to the Secretary of Public Safety, O. Randolph Rollins. ⁴

Two weeks later, on November 13, 1992, Garraghty did appeal to Rollins. Rollins requested that Garraghty "state with specificity the grounds on which" his appeal was based and provide "a written presentation in support of the issues that [he] identif[ied] as [the] basis for appealing this matter." Garraghty, by counsel, provided Rollins with the requested information. Garraghty does not seem to have been afforded a hearing of any kind by Rollins. In any event, again no opportunity was afforded Garraghty to confront and examine witnesses. Rather, in a letter to Garraghty dated April 2, 1993, Rollins "sustained" Murray's basic findings--that Garraghty had made "an unwanted sexual advance that was rejected" and that subsequent conduct by Garraghty "constituted retaliation." Rollins, however, believed that the harassment "continued only for a short time" and "did not cause or result in any measurable or material damage or injury to Ms. Williams." Moreover, he felt that the Department of Corrections "incorrectly took into account previous unproven allegations of sexual harassment." Accordingly, Rollins modified the remedial measures taken by the Department. He suspended Garraghty, retroactively, "from September 25, 1992 to November 6, 1992," demoted him from pay grade 17 to pay grade 16, "reinstated" him in "such position within the Department as the Director in his discretion determines," and awarded him "back pay at pay grade 16 from ...