Ridpath v. Board of Governors Marshall , 447 F.3d 292 ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
B. DAVID RIDPATH, 
Plaintiff-Appellee,
v.
BOARD OF GOVERNORS MARSHALL
UNIVERSITY; DAN ANGEL; F. LAYTON
COTTRILL; K. EDWARD GROSE,  No. 04-1314
Defendants-Appellants,
and
BOB PRUETT; RICHARD HILLIARD,
Defendants.

B. DAVID RIDPATH, 
Plaintiff-Appellee,
v.
BOB PRUETT,
Defendant-Appellant,
and  No. 04-1328
BOARD OF GOVERNORS MARSHALL
UNIVERSITY; DAN ANGEL; F. LAYTON
COTTRILL; K. EDWARD GROSE;
RICHARD HILLIARD,
Defendants.

Appeals from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert J. Staker, Senior District Judge.
(CA-03-2037)
2 RIDPATH v. BOARD OF GOVERNORS
Argued: February 3, 2005
Decided: May 11, 2006
Before WIDENER and KING, Circuit Judges, and
Henry F. FLOYD, United States District Judge for the
District of South Carolina, sitting by designation.
Dismissed in part and affirmed in part by published opinion. Judge
King wrote the opinion, in which Judge Floyd joined. Judge Widener
wrote a separate opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: Charles R. Bailey, BAILEY & WYANT, P.L.L.C.,
Charleston, West Virginia, for Appellants. Jason Eskwith Huber,
FORMAN & HUBER, L.C., Charleston, West Virginia, for Appellee.
ON BRIEF: Cheryl L. Connelly, Edward M. Kowal, Jr., CAMP-
BELL, WOOD, BAGLEY, EMERSON, MCNEER & HERNDON,
Huntington, West Virginia, for Appellant Bob Pruett.
OPINION
KING, Circuit Judge:
David Ridpath initiated this lawsuit in the Southern District of
West Virginia in August 2003 against the Board of Governors of
Marshall University; three of the University’s administrators, Dan
Angel, Layton Cottrill, and Edward Grose (collectively, the "Admin-
istrators"); then-Head Football Coach Bob Pruett; and Richard Hil-
liard, who had been retained by the University as its Special Legal
Counsel.1 Ridpath, a Marshall University employee and former athlet-
1
When this lawsuit was filed, Angel was the University’s President,
Cottrill its Vice President for Executive Affairs and General Counsel,
and Grose its Senior Vice President for Operations. Two notices of
appeal have been filed: one by the Board and the Administrators; and a
second by Coach Pruett. Hilliard is not a party to these appeals.
RIDPATH v. BOARD OF GOVERNORS 3
ics official, alleged multiple state and federal causes of action against
the Defendants in their individual and official capacities, centered on
their conduct with respect to an investigation of the University’s vio-
lations of National Collegiate Athletic Association ("NCAA") rules.
These causes of action included claims under 42 U.S.C. § 1983 (col-
lectively, the "§ 1983 claims") that Ridpath’s Fourteenth Amendment
right to due process was violated by the Board, the Administrators,
and Hilliard, and that his First Amendment right to free speech was
infringed in one way by the Board and the Administrators, and in a
second way by these Defendants and Coach Pruett. Asserting various
grounds, the Board, the Administrators, and Coach Pruett promptly
sought dismissal under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The district court denied these motions in part, rejecting,
inter alia, the Board’s and the Administrators’ assertions of qualified
immunity on the three § 1983 claims. See Ridpath v. Bd. of Gover-
nors, No. CA-03-2037 (S.D. W. Va. Feb. 17, 2004) (the "Opinion").
By these appeals, the Board, the Administrators, and Coach Pruett
seek review of the district court’s denial of qualified immunity, rely-
ing on the collateral order doctrine for appellate jurisdiction. As
explained below, we dismiss Coach Pruett’s appeal for lack of stand-
ing, and we conclude that the appeal of the Board and the Administra-
tors is properly before us. On the merits of qualified immunity, we
affirm the decision of the district court in rejecting this defense at the
Rule 12(b)(6) stage of these proceedings.2
I.
A.
The facts relevant to these appeals are largely drawn from the oper-
ative complaint in these proceedings, i.e., Ridpath’s "Amended Com-
2
In ruling today, we acknowledge that the Appellants are not precluded
from reasserting claims of qualified immunity at the summary judgment
stage of the underlying proceedings, or from appealing, under the collat-
eral order doctrine, any adverse district court rulings on such claims. See
Behrens v. Pelletier, 516 U.S. 299, 306-07 (1996) (recognizing that
defendant may raise qualified immunity at successive stages of litigation,
and appeal denial of such defense more than once).
4 RIDPATH v. BOARD OF GOVERNORS
plaint" of December 19, 2003, superseding his "Initial Complaint" of
August 4, 2003.3 According to the Amended Complaint, Ridpath’s
chosen career is in intercollegiate athletics administration, particularly
in the area of overseeing compliance with NCAA rules. See Amended
Complaint at ¶¶ 14-15, 52. Ridpath was hired by Marshall University
in November 1997 as an Assistant Athletic Director in charge of the
Compliance Office, or "Compliance Director." Id. at ¶ 16. At some
point, Ridpath was also assigned teaching responsibilities as an
Adjunct Professor in the Exercise and Sports Science Department. Id.
at ¶ 46.
On approximately July 2, 1999, it was reported to Ridpath that sev-
eral Marshall football players were involved in academic fraud, hav-
ing received an advance copy of a physical education test. See
Amended Complaint at ¶ 19. Ridpath informed the NCAA of this
allegation, prompting an investigation conducted by the NCAA and
the University. Id. at ¶ 20. During this investigation, the University
discovered and informed the NCAA of further infractions involving
certain "props," i.e., students seeking academic eligibility to join
sports teams. Id. at ¶¶ 20-21. Members of the coaching staff had
improperly alluded to employment opportunities in recruiting these
props, and assisted them in securing jobs — at above-market wages
3
We are obliged, in our review of the district court’s qualified immu-
nity ruling, to accept as true the facts alleged in the Amended Complaint
and to view them in the light most favorable to Ridpath. See Jenkins v.
Medford, 119 F.3d 1156, 1159 (4th Cir. 1997) (en banc). In addition to
the Amended Complaint, several exhibits are before us. By Order of
October 22, 2004, we permitted the Appellants to attach these exhibits
to their reply brief. We further allowed Ridpath to object to the use of
any fact shown in the exhibits that was not otherwise alleged in the
Amended Complaint. In the final analysis, the exhibits have been of lim-
ited utility to our review, because the Appellants rely on them largely in
an effort to contradict and disprove the Amended Complaint’s allega-
tions, which we must, of course, accept as true. In this regard, we also
deny as moot two pending motions filed by Ridpath with respect to these
exhibits and other materials submitted by the Appellants — the "Appel-
lee’s Motion to File Sur Reply to Appellants’ Reply," filed on January
28, 2005, and the "Appellee’s Motion to Strike Appellants’ Notice of
Decision Regarding Dr. Ridpath’s Level IV Grievance," filed on Febru-
ary 11, 2005.
RIDPATH v. BOARD OF GOVERNORS 5
— with a local business known as McCorkle Machine Shop. Id. at
¶¶ 21-22.
Prior to the investigation, Ridpath had no knowledge of the props’
employment at the Machine Shop, as the relevant information was not
(but should have been) reported to the University’s Compliance
Office. See Amended Complaint at ¶¶ 22, 24. During the investiga-
tion, members of the coaching staff attempted to cover up their
wrongdoing, and Coach Pruett, in testimony, suggested that Ridpath
and the Compliance Office were to blame for any improprieties. Id.
at ¶¶ 23, 25-26. Meanwhile, Ridpath was not allowed to personally
interview witnesses or investigate facts relating to the props’ employ-
ment at the Machine Shop. Id. at ¶ 27. Indeed, he was specifically
directed not to interview the Machine Shop’s owner, Marshall Reyn-
olds (who had a history of involvement in NCAA infractions at the
University), a directive that came from Cottrill, Hilliard, and Coach
Pruett. Id. They and Angel encouraged Ridpath, however, to defend
the University vigorously throughout the investigation and at a hear-
ing conducted on September 22, 2001, by the NCAA’s Committee on
Infractions. Id. at ¶¶ 30-32. Cottrill and Hilliard also assured Ridpath
on several occasions that he did not need personal legal representation
during the NCAA proceedings. Id. at ¶ 51(a). Ridpath’s defense of the
University was not well received by the NCAA committee. Id. at
¶ 38. Thereafter, although Ridpath had not been involved in the
NCAA rules violations, he became a "convenient scapegoat" for the
University. Id. at ¶¶ 38-39.
On approximately October 1, 2001, Ridpath agreed to be reas-
signed from being the University’s Compliance Director to become
its Director of Judicial Programs, despite lacking the necessary educa-
tion or training for this position. See Amended Complaint at ¶¶ 33-34.4
4
Ridpath’s chosen profession is intercollegiate athletics administration,
but the Director of Judicial Programs is a position outside the Universi-
ty’s Department of Athletics. See Amended Complaint at ¶¶ 14-15, 35.
According to information available through the University’s website, the
Director of Judicial Programs oversees enforcement of the University’s
Code of Student Rights and Responsibilities, which outlines standards of
expected student conduct and establishes disciplinary procedures for vio-
lations of these standards. See http://www.marshall.edu/judicial%2D
affairs.
6 RIDPATH v. BOARD OF GOVERNORS
Ridpath consented to this reassignment "for numerous reasons both
personal and professional." Id. at ¶ 33. Ridpath was given a raise to
accept the new position, and, at the time he filed the Amended Com-
plaint, he was being paid some $15,000 more annually than his pre-
decessor as Director of Judicial Programs. Id. at ¶ 34. As an
additional inducement for the transfer, Cottrill and Grose (as agents
of the University) agreed to inform the NCAA and the public that
Ridpath’s reassignment was not the result of any wrongdoing on his
part as Compliance Director. Id. at ¶ 35. In contravention of this
agreement, however, Hilliard subsequently informed the NCAA that
Ridpath’s reassignment was a "corrective action" taken by the Univer-
sity to remedy its NCAA rules violations. Id. at ¶ 36.
Ridpath was excluded from the decisionmaking process with
respect to the designation of his transfer as a "corrective action." See
Amended Complaint at ¶ 51(b). Moreover, during a meeting held on
approximately November 1, 2001, concerning the University’s viola-
tion of its agreement with Ridpath, Cottrill warned Ridpath: "You
[Ridpath] have no say in the matter. You need to think about your
family young man." Id. at ¶ 57(a) (alteration in original). At this same
meeting, Grose threatened Ridpath: "I am telling you. You do any-
thing to resurrect this [NCAA Infractions issues] and I will bury you
personally and professionally." Id. (alteration in original).
On December 21, 2001, the NCAA Committee on Infractions pub-
lished its report (the "Infractions Report"). See Amended Complaint
at ¶ 57(b). Its findings included two major NCAA rules violations —
academic fraud and impermissible employment of props at the
Machine Shop — and it labeled Ridpath’s reassignment as a "correc-
tive action" taken in response to these infractions. Id. at ¶¶ 37, 41,
51(c). An advance copy of the Infractions Report had been provided
to the University and, in the days leading up to its public release, a
group of school officials met to review and discuss it. Id. at ¶ 57(b).
During this meeting, some participants raised concerns about "cheap
shots" taken against Ridpath in the Infractions Report. Id. Addition-
ally, the group discussed the fact that Ridpath would wish to clear his
name. Id. In this regard, Angel, the University’s President, asserted
that he "would cut the dead limb from the tree" if Ridpath commented
publicly. Id. Angel further stated that he had previously dealt with
similar situations, and that he would have "no problem firing [Rid-
RIDPATH v. BOARD OF GOVERNORS 7
path] on the spot" if he spoke publicly about the NCAA investigation.
Id. Because of the threats articulated by Angel, and those previously
made by Cottrill and Grose, Ridpath initially refrained from publicly
challenging the findings of the Infractions Report and the "corrective
action" label that had been placed on his reassignment. Id. at ¶ 58.
Later, however, Ridpath retained counsel and filed a civil action
based on alleged constitutional violations. See Amended Complaint at
¶ 62.5 Subsequently, on July 14, 2003, Ridpath was relieved of his
responsibilities as an Adjunct Professor in the Exercise and Sports
Science Department (but not as the Director of Judicial Programs). Id.
at ¶¶ 46, 59. During related grievance proceedings, a University offi-
cial acknowledged under oath that Ridpath was discharged from his
teaching position due to negative comments he made about the Uni-
versity’s conduct during the NCAA investigation. Id. at ¶¶ 47, 61.
As of the filing of the Amended Complaint in these proceedings,
Ridpath remained in his position as the University’s Director of Judi-
cial Programs. See Amended Complaint at ¶¶ 1, 34. Meanwhile, he
continued to apply to other colleges and universities for a position in
his chosen field, as a compliance director or other intercollegiate ath-
letics administrator. Id. at ¶¶ 42, 52. He was unable to procure other
employment, however, because his professional reputation had been
permanently damaged by the "corrective action" label placed on his
reassignment from Marshall University’s Department of Athletics. Id.
at ¶ 52. According to the Amended Complaint, this label "calls into
question his honesty, integrity and professional competence as an
NCAA Compliance Coordinator," destroying his future career oppor-
tunities in intercollegiate athletics. Id. at ¶¶ 40-41. And, despite the
devastating effect of the "corrective action" label, no means were
available to Ridpath under NCAA bylaws to challenge it or the other
contents of the Infractions Report. Id. at ¶ 51(c).
5
In December 2002, Ridpath filed a complaint against several of the
Defendants herein, making allegations similar to those in these proceed-
ings. On July 8, 2003, that civil action — deemed a separate lawsuit from
these proceedings in the district court and assigned a different case num-
ber — was voluntarily dismissed without prejudice by Ridpath.
8 RIDPATH v. BOARD OF GOVERNORS
B.
On August 4, 2003, Ridpath instituted these proceedings with the
filing of his Initial Complaint against the Board, the Administrators,
and Coach Pruett. In the Initial Complaint, Ridpath alleged, inter alia,
the three § 1983 claims: specifically, that the Board had violated his
Fourteenth Amendment right to due process (the "due process
claim"); and that the Board, the Administrators, and Coach Pruett had
infringed on his First Amendment right to free speech in two distinct
ways (the "free speech claims").6 On September 15, 2003, the Board
and the Administrators, without answering the Initial Complaint,
sought dismissal under Rule 12(b)(6) or, in the alternative, transfer to
the appropriate state court. On September 30, 2003, Coach Pruett sep-
arately sought a Rule 12(b)(6) dismissal. In their motions and sup-
porting memoranda of law (collectively, the "September 2003
Motions"), these Defendants asserted multiple bases for dismissal, but
never contended that qualified immunity shielded any of them from
suit.7
On October 20, 2003, Ridpath filed a response in opposition to the
motions to dismiss. Subsequently, on October 30, 2003, the Board
and the Administrators filed a reply to Ridpath’s response (the "Octo-
6
Ridpath asserted each of the two free speech claims against the Board
and the Administrators, and only one of them against Coach Pruett.
7
In their Rule 12(b)(6) effort, the Board and the Administrators raised
thirteen grounds, five of which pertained to the § 1983 claims, as fol-
lows:
(1) that they were entitled to Eleventh Amendment immunity;
(2) that they were entitled to witness immunity;
(3) that Ridpath did not possess a constitutionally protected
property right in his employment with the University;
(4) that they did not infringe on Ridpath’s First and Fourteenth
Amendment rights; and
(5) that Ridpath had failed to join Hilliard, an indispensable
party.
In Coach Pruett’s separate motion, he asserted three grounds for relief,
including Eleventh Amendment immunity.
RIDPATH v. BOARD OF GOVERNORS 9
ber 2003 Reply Brief"). Therein, they asserted and argued, for the
first time, the defense of qualified immunity. Even then, their discus-
sion of this defense was limited to a few paragraphs inserted in the
midst of a largely unrelated argument on Eleventh Amendment
immunity.
On December 19, 2003, while the September 2003 Motions were
pending, Ridpath sought leave to amend the Initial Complaint. On
January 20, 2004, the district court authorized the filing of the
Amended Complaint, nunc pro tunc to December 19, 2003. The
Amended Complaint alleged the same causes of action as those in the
Initial Complaint. The Amended Complaint added Hilliard as a
Defendant, however, and it asserted the due process claim against the
Board, the Administrators, and Hilliard (instead of against the Board
alone, as in the Initial Complaint). As for the other § 1983 claims, the
Amended Complaint reasserted the two free speech claims against the
same Defendants, i.e., the Board, the Administrators, and (on one of
the two claims only) Coach Pruett.8
In early February 2004, the Board, the Administrators, and Coach
Pruett filed Rule 12(b)(6) motions to dismiss the Amended Complaint
(collectively, the "February 2004 Motions"). Shortly thereafter, on
February 17, 2004, the district court filed its Opinion, ruling on the
September 2003 Motions (which had sought dismissal of the Initial
Complaint), and applying those motions to the Amended Complaint.
The Opinion did not address the February 2004 Motions (which had
been directed to the Amended Complaint).9 Although qualified immu-
8
In addition to the three § 1983 claims at issue in these appeals, Rid-
path alleged, in both the Initial Complaint and the Amended Complaint,
a separate claim under § 1983 for civil conspiracy. He also asserted six
state law claims, arising under the Constitution of West Virginia and
state common law.
9
The February 2004 Motions included the following: Coach Pruett’s
February 5, 2004 motion to dismiss, incorporating by reference his ear-
lier dismissal motion and asserting no additional grounds; and the
Board’s February 12, 2004 motion to dismiss or, alternatively, to transfer
these proceedings to state court. The Board’s motion was accompanied
by a memorandum of law submitted in its name, as well as those of the
Administrators (who were not named as movants in the motion to dis-
10 RIDPATH v. BOARD OF GOVERNORS
nity was not raised by the Board and the Administrators in their Sep-
tember 2003 Motion, but rather only in their October 2003 Reply
Brief, the court ruled on this defense. The court concluded that the
Board and the Administrators were not entitled to qualified immunity
on the § 1983 claims as alleged in the Amended Complaint. See Opin-
ion at 15.10
On March 5, 2004, the Board and the Administrators filed a notice
of interlocutory appeal. On March 12, 2004, Coach Pruett filed a sim-
ilar notice. They collectively seek review of the district court’s Febru-
ary 17, 2004 qualified immunity ruling.11
miss). This memorandum reasserted many of the grounds relied on by
the Board and the Administrators in support of their earlier dismissal
motion; however, unlike the October 2003 Reply Brief, the memoran-
dum did not articulate any claims of qualified immunity. These anoma-
lies in the February 2004 Motions — i.e., the failure to raise qualified
immunity and the omission of the Administrators as movants — are
immaterial in these appeals, because the qualified immunity ruling at
issue was made pursuant to only the September 2003 Motions.
10
On February 25, 2004, after the district court filed its Opinion, Hil-
liard sought dismissal of the Amended Complaint on the basis of, inter
alia, qualified immunity. On February 27, 2004, Coach Pruett filed an
answer to the Amended Complaint, invoking qualified immunity. Those
qualified immunity claims were the first raised by Hilliard and Coach
Pruett.
11
After the filing of the notices of appeal, the district court ruled on the
February 2004 Motions. Specifically, on April 27, 2004, the court dis-
posed of Coach Pruett’s February 5, 2004 motion to dismiss (in which
qualified immunity was not at issue). Also on April 27, 2004, the court
granted the unopposed motion of the Board and the Administrators to
stay the district court proceedings pending our disposition of these
appeals. Despite this stay, the district court proceedings continued, and,
on September 23, 2004, the court ruled on the Board’s February 12, 2004
motion to dismiss. In rendering its decision on that motion, the court did
not disturb its earlier qualified immunity ruling of February 17, 2004,
which remains the sole subject of these appeals.
RIDPATH v. BOARD OF GOVERNORS 11
II.
The interlocutory nature of these appeals, and the somewhat tortu-
ous course of the district court proceedings, cause us to question our
jurisdiction. We therefore must first assess whether these appeals are
properly before us. See Mount Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 278 (1977) (observing that appellate courts
are obliged to inquire into jurisdictional issues sua sponte whenever
doubt arises as to existence of jurisdiction).12
A.
Normally, of course, a district court’s denial of a Rule 12(b)(6)
motion is not an appealable ruling, because it is not a final order
under 28 U.S.C. § 1291. Jenkins v. Medford, 119 F.3d 1156, 1159
(4th Cir. 1997) (en banc). The Appellants rely, however, on the collat-
eral order doctrine, under which the Supreme Court has carved out a
"small class" of trial court decisions that, though short of final judg-
ment, are immediately appealable. Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 546 (1949). Such decisions are appealable
because they "finally determine claims of right separable from, and
collateral to, rights asserted in the action, too important to be denied
review and too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated." Id.In Mitchell v. Forsyth, the Court held that the denial of qualified
immunity is immediately appealable under the collateral order doc-
trine to the extent that the availability of this defense turns on a ques-
tion of law. 472 U.S. 511, 530 (1985). This principle applies whether
qualified immunity was rejected at the dismissal stage (as in these
proceedings), or at the summary judgment stage. See Jenkins, 119
F.3d at 1159 & n.2 (citing Behrens v. Pelletier, 516 U.S. 299, 307
(1996)). Accordingly, the Board, the Administrators, and Coach Pru-
ett have properly invoked the collateral order doctrine.
12
Following oral argument, we requested supplemental briefing from
the parties on the jurisdictional issues. Although Ridpath had not previ-
ously challenged our jurisdiction, he did so in his supplemental submis-
sion. Meanwhile, the Appellants continued to maintain that we possess
jurisdiction over their appeals.
12 RIDPATH v. BOARD OF GOVERNORS
B.
Our jurisdictional assessment does not, however, end here. Only if
a party has standing to appeal do we possess authority to decide the
merits of his contentions. See Davis v. Scott, 176 F.3d 805, 807 (4th
Cir. 1999) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 549 (1986)). And, for standing to appeal, a party must be "ag-
grieved" by a trial court’s judgment. H.A. Health Serve. v. Metro. Life
Ins. Co., 957 F.2d 120, 123 (4th Cir. 1992).
In these proceedings, the district court ruled only that the Board
and the Administrators are not entitled to qualified immunity on the
§ 1983 claims. The court thus did not address the availability of this
defense to Coach Pruett — and had no reason to do so, as he had not
raised qualified immunity as of the filing of the Opinion. Coach Pruett
therefore was not aggrieved by the court’s qualified immunity ruling,
and we must dismiss his appeal. By contrast, the Board and the
Administrators were aggrieved by the Opinion, because it denied their
claims of qualified immunity. Thus, they have standing to appeal.
C.
Finally, however, there remains some doubt on whether we should
consider the merits of the appeal by the Board and the Administrators,
because they belatedly raised their claims of qualified immunity, in
their October 2003 Reply Brief. We observe that qualified immunity
is an affirmative defense, and the burden of pleading it "rests with the
defendant." Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also
Sales v. Grant, 224 F.3d 293, 296 (4th Cir. 2000) (recognizing that
qualified immunity can be waived if not "squarely presented" to dis-
trict court). Generally, qualified immunity must be raised in an
answer or a dismissal motion. See Fed. R. Civ. P. 8(c) ("In pleading
to a preceding pleading, a party shall set forth affirmatively . . . any
other matter constituting an avoidance or affirmative defense."); Fed.
R. Civ. P. 12(b)(6) (allowing defense of failure to state claim upon
which relief can be granted to be raised by pre-answer motion). More-
over, where — as here — defendants raise an issue such as qualified
immunity only in a reply brief, a district court is entitled to refuse to
consider it at that stage of the proceedings. See, e.g., Montalvo v. Park
Ridge Police Dep’t, 170 F. Supp. 2d 800, 803 (N.D. Ill. 2001). And,
RIDPATH v. BOARD OF GOVERNORS 13
we may refuse to consider this defense on appeal if it was not pre-
served below. See Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 226
(4th Cir. 1997); Buffington v. Balt. County, 913 F.2d 113, 122 (4th
Cir. 1990).
We are not, however, precluded from considering an affirmative
defense that was not properly asserted in the trial court, if the court
has nonetheless chosen to address it. See, e.g., Curry v. Syracuse, 316
F.3d 324, 330-31 (2d Cir. 2003) (affirming district court’s application
of collateral estoppel over plaintiff’s contention that defendant waived
defense by raising it only in supplemental memorandum to pending
summary judgment motion). Such review is particularly appropriate
if the plaintiff suffers no prejudice, and if hearing the appeal serves
"the strong public policy in economizing the use of judicial resources
by avoiding relitigation." See id. at 331 (internal quotation marks
omitted).
Here, we cannot say that Ridpath was prejudiced by the district
court’s consideration of the untimely qualified immunity claims of the
Board and the Administrators. Indeed, the court rejected them. More-
over, although there is no indication in the record that Ridpath was
allowed to respond to these claims, it also does not appear that he
sought to do so. Ridpath fully addressed the relevant qualified immu-
nity issues in his submissions to us, and he did not initially object to
our jurisdiction. In these circumstances, and in the interest of judicial
economy, we will consider the merits of the qualified immunity
claims of the Board and the Administrators.
III.
We review de novo the denial of a motion to dismiss based on
qualified immunity, accepting as true the facts alleged in the com-
plaint and viewing them in the light most favorable to the plaintiff.
See Jenkins v. Medford, 119 F.3d 1156, 1159 (4th Cir. 1997) (en
banc). Qualified immunity shields government officials performing
discretionary functions from personal-capacity liability for civil dam-
ages under § 1983, "‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known.’" Wilson v. Layne, 526 U.S. 603, 609
(1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see
14 RIDPATH v. BOARD OF GOVERNORS
also Kentucky v. Graham, 473 U.S. 159, 165-67 (1985). Government
officials are entitled to the defense of qualified immunity unless a
§ 1983 claim satisfies the following two-prong test (the "qualified
immunity test"): (1) the allegations underlying the claim, if true, sub-
stantiate the violation of a federal statutory or constitutional right; and
(2) this violation was of a "clearly established" right "of which a rea-
sonable person would have known." See Mellen v. Bunting, 327 F.3d
355, 365 (4th Cir. 2003) (citing Hope v. Pelzer, 536 U.S. 730, 736
(2002); Harlow, 457 U.S. at 818) (internal quotation marks omitted);
see also Wilson, 526 U.S. at 609.
A.
In view of basic principles of qualified immunity, we can easily
dispose of the Board’s assertions of this defense. Qualified immunity
may be invoked by a government official sued in his personal, or indi-
vidual, capacity. See Graham, 473 U.S. 159 at 165-67. This defense
is not available in an official-capacity suit brought against a govern-
ment entity or a government officer as that entity’s agent. Id. In these
proceedings, the Board was named as a defendant in its capacity as
a "public institution," i.e., as the proper party to be sued on behalf of
the University. See Amended Complaint at ¶ 2. And, an action against
an entity like the Board is necessarily an official-capacity suit. See
Graham, 473 U.S. at 165-66. Accordingly, the Board is not entitled
to the qualified immunity defense. See id. at 166-67. We therefore
affirm the district court’s denial of qualified immunity to the Board
on the § 1983 claims. We also recognize that, to the extent Ridpath’s
claims are asserted against the Administrators in their official capaci-
ties, the Administrators likewise are not entitled to qualified immunity.13
13
The § 1983 claims against the Administrators in their official capaci-
ties are essentially duplicative of the § 1983 claims against the Board.
See Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004) (citing Gra-
ham, 473 U.S. at 165-66). Although the Board and the Administrators,
in their official capacities, are not entitled to qualified immunity on the
§ 1983 claims, they may be entitled to other immunities and defenses.
See Graham, 473 U.S. at 167. For example, the district court ruled that
the Eleventh Amendment bars Ridpath from obtaining money damages
(but not prospective injunctive relief) from any of the official-capacity
Defendants on the § 1983 claims, see Opinion at 8, a ruling not before
us in these appeals.
RIDPATH v. BOARD OF GOVERNORS 15
In their individual capacities, however, the Administrators may yet
possess colorable claims of qualified immunity. We assess these
claims in turn, focusing on the Administrators’ assertions of qualified
immunity with respect to, first, the due process claim and, second, the
free speech claims.
B.
Under the qualified immunity test, the initial question with respect
to the due process claim is whether Ridpath has sufficiently alleged
the violation of a Fourteenth Amendment right. See Mellen, 327 F.3d
at 365. The next question is whether, at the time of the Administra-
tors’ alleged conduct, this right was a clearly established one of which
a reasonable person would have known. Id. For the following reasons,
Ridpath’s due process claim satisfies each of these prongs, and the
district court’s denial of qualified immunity on this claim must be
affirmed.
1.
With respect to his due process claim, Ridpath has identified the
constitutional right at issue as the right to procedural due process
when governmental action threatens a person’s liberty interest in his
reputation and choice of occupation. See Bd. of Regents v. Roth, 408
U.S. 564, 573 & n.12 (1972) (recognizing that notice and hearing
would have been required if "[t]he State, in declining to rehire the
respondent, [had made] any charge against him that might seriously
damage his standing and associations in his community" or had "im-
posed on him a stigma or other disability that foreclosed his freedom
to take advantage of other employment opportunities"); cf. Conn v.
Gabbert, 526 U.S. 286, 291-92 (1999) (observing that "the liberty
component of the Fourteenth Amendment’s Due Process Clause
includes some generalized due process right to choose one’s field of
private employment, but a right which is nevertheless subject to rea-
sonable government regulation").14 In support of this claim, Ridpath
14
As the Supreme Court has recognized, "[t]he requirements of proce-
dural due process apply only to the deprivation of interests encompassed
by the Fourteenth Amendment’s protection of liberty and property."
16 RIDPATH v. BOARD OF GOVERNORS
asserts that, by placing the "corrective action" label on his reassign-
ment from Compliance Director to Director of Judicial Programs at
the University, the Administrators knowingly foreclosed his career
opportunities in his chosen field of intercollegiate athletics adminis-
tration without allowing him an opportunity to defend himself. See
Amended Complaint at ¶¶ 40, 51.
Ridpath maintains that he was not provided any procedural safe-
guards with respect to the use of the "corrective action" label. The
Amended Complaint specifically alleges that Ridpath was not to
blame for the NCAA rules violations, and excluded from participating
in much of the related investigation, but that he was nonetheless made
a "scapegoat" for the infractions; that he was discouraged from retain-
ing personal counsel during the investigation; that the decision to
place the "corrective action" label on his reassignment was made
without his input and in contravention of an agreement between him
and the University; and that he had no means to challenge this label
or other aspects of the Infractions Report. The Administrators do not
dispute that these allegations are sufficient to establish a lack of pro-
cedural safeguards.
The Administrators contend, however, that they were not required
to provide Ridpath with any procedural safeguards, because the "cor-
rective action" label did not implicate a protected liberty interest.
Relying on precedent establishing the elements of a valid liberty inter-
est claim, they maintain that the Amended Complaint’s allegations are
insufficient to establish the following (collectively, the "liberty inter-
est contentions"): (a) that the "corrective action" label constituted a
charge of a serious character defect; (b) that this label accompanied
any damage to Ridpath’s employment status; (c) that it was made
public; and (d) that it was false. We are thus obliged to assess the
Administrators’ four liberty interest contentions, in order to determine
Roth, 408 U.S. at 569. In order to have a protected property interest in
his employment, a person must possess a legitimate claim of entitlement
to it — created, for example, by contract or state law. See id. at 577-78;
Robertson v. Rogers, 679 F.2d 1090, 1091 (4th Cir. 1982). Ridpath, an
at-will employee of the University, is not claiming any protected prop-
erty interest in his employment.
RIDPATH v. BOARD OF GOVERNORS 17
whether Ridpath has sufficiently alleged a Fourteenth Amendment
violation and thus satisfied the first prong of the qualified immunity
test.
a.
The first of the liberty interest contentions is that the "corrective
action" label did not implicate a protected liberty interest because it
cannot be understood to constitute a charge of a serious character
defect.15 The type of communication that gives rise to a protected lib-
erty interest implies "the existence of serious character defects such
as dishonesty or immorality." Robertson v. Rogers, 679 F.2d 1090,
1092 (4th Cir. 1982) (citing Roth, 408 U.S. at 573). In assessing lib-
erty interest claims, we have distinguished statements that imply such
serious character defects from statements that simply allege "incom-
petence." Compare Boston v. Webb, 783 F.2d 1163, 1165-66 (4th Cir.
1986) (recognizing that plaintiff’s liberty interest "was surely impli-
cated" by public announcement that he was discharged after failing to
disprove allegation of receiving bribe), Cox v. N. Va. Transp.
Comm’n, 551 F.2d 555, 557-58 (4th Cir. 1976) (affirming trial court’s
determination that plaintiff’s liberty interest was infringed when
employer publicly linked her discharge to investigation of financial
irregularities, thus "insinuating dishonesty"), and McNeil v. Butz, 480
F.2d 314, 319-20 (4th Cir. 1973) (concluding that federal employees’
liberty interests were implicated by government-employer’s charges
of Agriculture Department regulation violations that "smack of delib-
erate fraud" and "in effect allege dishonesty"), with Zepp v. Rehr-
mann, 79 F.3d 381, 388 (4th Cir. 1996) (rejecting deprivation of lib-
erty interest claim where employer announced that plaintiff was being
forced to retire "due to management problems" — an accusation, at
most, "of incompetence or unsatisfactory job performance"), and
Robertson, 679 F.2d at 1091-92 (concluding that liberty interest was
not implicated by nonrenewal of employment contract for "incompe-
15
On this issue and others, the Administrators extensively rely on
unpublished decisions of this Court. Of course, under Local Rule 36(c),
citations to unpublished decisions are disfavored. These citations might
be warranted if, for example, there were no published decision on point.
Because such circumstances are not present here, however, we do not
address the unpublished decisions cited by the Administrators.
18 RIDPATH v. BOARD OF GOVERNORS
tence and outside activities," because such allegations did not involve
attack on plaintiff’s integrity or honor).
The Administrators maintain that, by using the "corrective action"
label, they provided no reasons for Ridpath’s reassignment, or at least
indicated nothing more than that he was incompetent as Compliance
Director. Ridpath alleges, however, that this label calls into question
not only his "professional competence as an NCAA Compliance
Coordinator," but also his "honesty" and "integrity." Amended Com-
plaint at ¶ 41. Of course, we are obliged, in applying Rule 12(b)(6)
principles, to accept the allegations of the Amended Complaint as true
and to view them in the light most favorable to Ridpath. See Jenkins,
119 F.3d at 1159. Utilizing this standard, we agree with Ridpath: the
Administrators’ use of the "corrective action" label lays blame on him
for the University’s NCAA rules violations — including academic
fraud and impermissible employment of props at the Machine Shop
— and thus insinuates "the existence of serious character defects such
as dishonesty or immorality." Robertson, 679 F.2d at 1092. Indeed,
Ridpath contends that, within the intercollegiate athletics community
in particular, the use of the "corrective action" label in this context is
typically understood to connote dishonesty and other serious character
defects on the part of the label’s bearer. This, as the district court rec-
ognized, is a question of fact, not properly assessed on a Rule
12(b)(6) motion. We therefore reject the Administrators’ first liberty
interest contention, that the "corrective action" label cannot be under-
stood to imply a serious character defect.
b.
The Administrators’ second liberty interest contention is that the
"corrective action" label did not implicate a protected liberty interest
because it did not accompany damage to Ridpath’s employment sta-
tus. We have required that, in order to deprive an employee of a lib-
erty interest, a public employer’s stigmatizing remarks must be "made
in the course of a discharge or significant demotion." Stone v. Univ.
of Md. Med. Sys. Corp., 855 F.2d 167, 172 n.5 (4th Cir. 1988) (citing
Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136, 1139 (7th
Cir. 1984); Mosrie v. Barry, 718 F.2d 1151, 1160-62 (D.C. Cir.
1983); Moore v. Otero, 557 F.2d 435, 438 (5th Cir. 1977)). As estab-
lished in decisions of our sister circuits on which we relied in Stone,
RIDPATH v. BOARD OF GOVERNORS 19
such a "significant demotion" may include the reassignment of an
employee to a position outside his field of choice. See Lawson, 725
F.2d at 1139; Moore, 557 F.2d at 438 & n.11.16
The Administrators disregard the gravity of Ridpath’s reassignment
outside the Department of Athletics, from Compliance Director to
Director of Judicial Programs. Rather, the Administrators essentially
contend that Ridpath, having "voluntarily" changed positions, was
neither discharged nor given a significant demotion. Properly assess-
ing Ridpath’s allegations in the light most favorable to him, however,
these allegations establish that Ridpath’s reassignment was neither
voluntary nor an innocuous transfer. Rather, it was a significant
16
Stone and the decisions relied on therein followed the Supreme
Court’s decision in Paul v. Davis, 424 U.S. 693 (1976), explaining its
earlier decision in Roth. The plaintiff in Paul had asserted a § 1983 claim
based on allegations that the defendant-police chief had included the
plaintiff’s name and photograph on a flyer of "Active Shoplifters" dis-
tributed for posting by local merchants, thus branding him as a criminal
and seriously impairing his future employment opportunities. See 424
U.S. at 697. In rejecting this claim as one for defamation alone, the
Supreme Court characterized its previous decision in Roth as recognizing
"that governmental action defaming an individual in the course of declin-
ing to rehire him could entitle the person to notice and an opportunity to
be heard as to the defamation." Paul, 424 U.S. at 709-10 (citing Roth,
408 U.S. at 573) (emphasis added). The Paul Court deemed the language
of Roth to be "inconsistent with any notion that a defamation perpetrated
by a government official but unconnected with any refusal to rehire
would be actionable under the Fourteenth Amendment." Paul, 424 U.S.
at 709. Accordingly, under what is sometimes referred to as its "stigma
plus" test, the Paul Court instructed that no deprivation of a liberty inter-
est occurs when, in the course of defaming a person, a public official
solely impairs that person’s future employment opportunities, without
subjecting him to a present injury such as termination of government
employment. Id.; accord Siegert v. Gilley, 500 U.S. 226, 233 (1991)
("Defamation, by itself, is a tort actionable under the laws of most States,
but not a constitutional deprivation." (emphasis added)); see also John-
son v. Morris, 903 F.2d 996, 999 (4th Cir. 1990) ("Publication of stigma-
tizing charges alone, without damages to ‘tangible interests such as
employment,’ does not invoke the due process clause." (quoting Paul,
424 U.S. at 701)).
20 RIDPATH v. BOARD OF GOVERNORS
demotion to a position outside his chosen field, rendering it tanta-
mount to an outright discharge.
The Amended Complaint paints an ugly picture of the circum-
stances surrounding Ridpath’s reassignment. As a key component to
the scheme to make him a "scapegoat" for the University’s NCAA
rules violations, Ridpath was banished from the Department of Ath-
letics. He was then relegated to a position for which he lacked the
necessary education and training — a position that may have been
prized by others, but to Ridpath constituted, at best, a perilous detour
on his career path and, at worst, a dead end. Ridpath had to be per-
suaded to accept this transfer with the offer of significant induce-
ments. Hence, he was given a pay raise, and was eventually making
$15,000 more than the previous Director of Judicial Programs. More
importantly, he was also falsely promised that he would be exoner-
ated of blame for the athletics program infractions. Once this promise
was broken and his reassignment was characterized as a "corrective
action" to the NCAA, Ridpath was threatened against publicly chal-
lenging this label or the other conclusions in the Infractions Report.
Cottrill warned Ridpath that "[y]ou need to think about your family
young man." Amended Complaint at ¶ 57(a). Grose threatened to
"bury [Ridpath] personally and professionally." Id. And Angel, the
University’s President, asserted that he "would cut the dead limb from
the tree" and would have "no problem firing [Ridpath] on the spot"
if he commented publicly. Id. at ¶ 57(b). These circumstances belie
any notion that Ridpath’s reassignment cannot be considered a signif-
icant demotion. Indeed, the circumstances strongly suggest that the
Administrators knew the reassignment constituted a significant demo-
tion and thus attempted to frame it as a voluntary transfer, so that if
their attempts to muzzle Ridpath failed, they could still evade liability
in any future litigation.
Under our precedent, Ridpath’s allegations are more than sufficient
to show that he was subjected to an involuntary and significant demo-
tion in connection with the stigmatizing "corrective action" label.
First of all, we have spelled out that a change in employment status
is not voluntary if it is "obtained by the employer’s misrepresentation
or deception" or "forced by the employer’s duress or coercion." Stone,
855 F.2d at 174. The circumstances alleged here — including the ruse
that Ridpath would not be blamed for the NCAA rules violations if
RIDPATH v. BOARD OF GOVERNORS 21
he agreed to the reassignment — are squarely within the Stone stan-
dard. Cf. id. at 172 n.5, 175 (concluding that, absent showing of either
misrepresentation or coercion, Stone plaintiff voluntarily resigned his
employment and thus could not sustain liberty interest claim).
Moreover, the Lawson and Moore decisions, on which we relied in
Stone, establish that the reassignment of an employee to a position
outside his field of choice may very well constitute a "significant
demotion" sufficient to invoke due process protections.17 In Lawson,
the Seventh Circuit specifically recognized that "[t]he concept of lib-
erty in Fourteenth Amendment jurisprudence has long included the
liberty to follow a trade, profession, or other calling." 725 F.2d at
1138. The court further observed that an employee’s liberty interest
may be infringed by a firing or other employment action that serves
to "exlu[de him] from his occupation." Id. at 1139. Accordingly, the
court held that a public employer cannot avoid liability "by offering
the employee a job far beneath the one he had," where being so
demoted "is to be as effectively excluded from one’s trade or calling
as by being thrown out on the street." Id. Similarly, in Moore, the
Fifth Circuit recognized that the internal transfer of an employee
would support a liberty interest claim if the transfer "constitutes such
a change of status as to be regarded essentially as a loss of employ-
ment." 557 F.2d at 438.18 The circumstances of Ridpath’s reassign-
ment fit neatly with those that the Lawson and Moore courts have
recognized, with our approval, would support a liberty interest claim.
Ridpath was not simply transferred from one position to a slightly less
desirable or even a better one (no matter what his salary as Director
of Judicial Programs or how appealing that position might have been
17
The third decision of a sister circuit on which we relied in Stone —
the D.C. Circuit’s decision in Mosrie — is not on point with the issues
herein. See Mosrie, 718 F.2d at 1161 (concluding that lateral transfer
within same line of work, with no reduction in rank or pay, did not con-
stitute deprivation of liberty).
18
Unlike the Lawson court, the Moore court did not explicitly discuss
the significance of one’s liberty interest in pursuing a chosen occupation
or calling. However, as an example of the type of internal transfer that
might support a liberty interest claim, the Moore court identified a hypo-
thetical demotion from police corporal to janitor (which, obviously,
would constitute a change in line of work). See 557 F.2d at 438 n.11.
22 RIDPATH v. BOARD OF GOVERNORS
to others). Rather, in a dramatic change of status equivalent to out-
right discharge, he was ousted from the University’s Department of
Athletics and completely excluded from his chosen field of intercolle-
giate athletics administration.19 We therefore reject the Administra-
tors’ second liberty interest contention, that the "corrective action"
label did not accompany damage to Ridpath’s employment status suf-
ficient to invoke his right to procedural due process.20
c.
The Administrators’ third liberty interest contention is that the
"corrective action" label did not implicate a protected liberty interest,
as it was not made public. In order to invoke due process protections,
a charge of a serious character defect must be publicly disclosed. See
Wooten v. Clifton Forge Sch. Bd., 655 F.2d 552, 555 (4th Cir. 1981);
19
These facts stand in stark contrast to those that have been deemed
insufficient to support liberty interest claims. In Johnson v. Morris, for
example, we rejected the liberty interest claim of a plaintiff who was
merely demoted from one position to another within the Virginia Depart-
ment of Corrections, presumably with no change in line of work (as there
was no allegation to the contrary). See 903 F.2d 996, 997-99 (4th Cir.
1990). Likewise, in Moore, the Fifth Circuit concluded that no liberty
interest was implicated where the plaintiff was only demoted from police
corporal to patrolman. See 557 F.2d at 438.
20
In his dissent on this aspect of the Administrators’ appeal, our distin-
guished colleague mischaracterizes Ridpath’s due process claim as one
for defamation alone and, in so doing, erroneously analogizes the facts
before us to those presented in Siegert v. Gilley, 500 U.S. 226 (1991).
There, the Supreme Court rejected the plaintiff-employee’s liberty inter-
est claim for failure to satisfy the "stigma plus" test previously outlined
in Paul v. Davis, 424 U.S. 693, 709-10 (1976) (recognizing that defama-
tory remark may implicate liberty interest if made in connection with dis-
charge from employment). See Siegert, 500 U.S. at 233-34; see also
supra note 16. In rejecting Siegert’s liberty interest claim, the Court
explained that "[t]he alleged defamation was not uttered incident to the
termination of Siegert’s employment," in that (1) "he voluntarily
resigned from his position," and (2) the alleged defamation did not occur
until "several weeks later." Siegert, 500 U.S. at 234. Here, by stark con-
trast, the alleged defamation — the use of the "corrective action" label
— occurred incident to Ridpath’s involuntary and significant demotion.
RIDPATH v. BOARD OF GOVERNORS 23
Fuller v. Laurens County Sch. Dist. No. 56, 563 F.2d 137, 141 (4th
Cir. 1977). In this matter, Ridpath has plainly alleged that the "correc-
tive action" label was communicated to the NCAA and to the public
at large. Rather than disputing the sufficiency of this allegation, the
Administrators contend that absolute witness immunity shields them
from liability for any otherwise public use of the "corrective action"
label during the NCAA administrative process. See generally Briscoe
v. LaHue, 460 U.S. 325 (1983) (recognizing that parties and witnesses
are entitled to absolute immunity from damages liability for their tes-
timony in judicial proceedings). Unfortunately for the Administrators,
their appeal is premised not on a denial of witness immunity, but on
the denial of qualified immunity only. As a result, their claims of wit-
ness immunity are not before us, and we must conclude that their
third liberty interest contention is without merit.
d.
The Administrators’ final liberty interest contention is that the
"corrective action" label did not implicate a protected liberty interest
because it did not constitute a false statement. There can be no depri-
vation of liberty unless the stigmatizing charges at issue are false. See
Stone, 855 F.2d at 172 n.5. The Administrators assert that Ridpath has
not alleged that his reassignment was not a "corrective action." This
contention is belied by the Amended Complaint. Ridpath repeatedly
disputes therein the central implication of the "corrective action"
label, i.e., that he was responsible for the University’s NCAA rules
violations. Indeed, the essence of Ridpath’s due process claim is that
he should have been provided notice and a hearing to prove his lack
of culpability and clear his name. This is a matter in which the falsity
of a stigmatizing charge is fervently contested — not, for instance,
one in which the plaintiff had previously conceded the truth of stig-
matizing charges, in effect acting as his own accuser and rendering
a hearing useless. Cf. McNeil, 480 F.2d at 326. We therefore reject the
Administrators’ final liberty interest contention.
In summary, contrary to the Administrators’ liberty interest conten-
tions, the allegations of Ridpath’s Amended Complaint and the rea-
sonable inferences drawn therefrom establish that the Administrators
publicly made a false charge against Ridpath, connoting dishonesty
and other serious character defects on his part, in the course of sub-
24 RIDPATH v. BOARD OF GOVERNORS
jecting him to a significant demotion to a position outside his field of
choice. Moreover, it is undisputed that the Amended Complaint
reflects that Ridpath was not provided notice or an opportunity to be
heard with respect to this charge. Ridpath therefore has sufficiently
alleged the violation of his Fourteenth Amendment right to due pro-
cess when a liberty interest is at stake. And, thus, the allegations
underlying his due process claim satisfy the first prong of the quali-
fied immunity test.
2.
Turning to the second prong of the qualified immunity test, we
must next assess whether the Fourteenth Amendment right allegedly
contravened by the Administrators was a "clearly established" right
"of which a reasonable person would have known." Mellen v. Bun-
ting, 327 F.3d 355, 365 (4th Cir. 2003) (internal quotation marks
omitted). In its decision in Hope v. Pelzer, the Supreme Court clari-
fied the appropriate inquiry on this issue. See 536 U.S. 730, 739-41
(2002); see also Jones v. Buchanan, 325 F.3d 520, 531-32 (4th Cir.
2003). As the Court explained, a constitutional right is clearly estab-
lished when "its contours [are] sufficiently clear that a reasonable
official would understand that what he is doing violates that right."
Hope, 536 U.S. at 739 (internal quotation marks omitted). That is,
"‘in the light of pre-existing law the unlawfulness must be apparent,’"
id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)), but
"the very action in question [need not have] previously been held
unlawful," id. (internal quotation marks omitted), because "‘general
statements of the law are not inherently incapable of giving fair and
clear warning, and . . . a general constitutional rule already identified
in the decisional law may apply with obvious clarity to the specific
conduct in question,’" id. at 741 (quoting United States v. Lanier, 520
U.S. 259, 270-71 (1997)). Thus, "officials can still be on notice that
their conduct violates established law even in novel factual circum-
stances." Id. The "salient question" is whether the state of the law at
the time of the events in question gave the officials "fair warning" that
their conduct was unconstitutional. Id.The key events alleged here — the labeling of Ridpath’s reassign-
ment outside the Department of Athletics as a "corrective action"
without giving him notice or a hearing — occurred in late 2001. At
RIDPATH v. BOARD OF GOVERNORS 25
that time, the state of the law was such that the Administrators were
on notice that their conduct infringed on a liberty interest held by Rid-
path, rendering their failure to provide him with procedural safe-
guards a violation of his Fourteenth Amendment right to due process.
Indeed, decades earlier, in its decision in Board of Regents v. Roth,
the Supreme Court recognized that "notice and an opportunity to be
heard are essential" when a public employee’s liberty interest is
infringed by a charge implying such serious character defects as "dis-
honesty[ ] or immorality" lodged in the course of an injury such as
failure to rehire. See 408 U.S. 564, 573 (1972) (internal quotation
marks omitted); see also Siegert v. Gilley, 500 U.S. 226, 233 (1991);
Paul v. Davis, 424 U.S. 693, 709 (1976). In the wake of Roth and its
progeny, we have reiterated and expounded on the requirements of
such a liberty interest claim on numerous occasions.
We have provided, in several decisions, concrete examples of the
types of public statements implying the existence of serious character
defects such as dishonesty and immorality. See Boston v. Webb, 783
F.2d 1163, 1165-66 (4th Cir. 1986) (announcement that plaintiff was
discharged after failing to disprove allegation of receiving bribe); Cox
v. N. Va. Transp. Comm’n, 551 F.2d 555, 557-58 (4th Cir. 1976)
(statement linking plaintiff’s discharge to investigation of financial
irregularities); McNeil v. Butz, 480 F.2d 314, 319-20 (4th Cir. 1973)
(charges against government employees of Agriculture Department
regulation violations such as fraudulently obtaining federal payments
for farm operators). Of course, none of these decisions involved the
use of the "corrective action" label in the course of an NCAA investi-
gation. However, there is no logical distinction between, for instance,
linking an employee’s discharge to an investigation of financial irreg-
ularities, see Cox, 551 F.2d at 557-58, and tying Ridpath’s reassign-
ment from the Department of Athletics to the University’s serious
NCAA rules violations (as the "corrective action" label served to do).
In each of these scenarios, the charge at issue can be understood to
insinuate dishonesty and other serious character defects. Thus, our
precedent gave the Administrators fair warning that the "corrective
action" label was just the type of charge that implicates a protected
liberty interest.21
21
Our precedent also clarifies that, in order to sustain a liberty interest
claim, the stigmatizing charge at issue must have been both publicized
26 RIDPATH v. BOARD OF GOVERNORS
Similarly, we have specified that a public employer’s stigmatizing
remarks may infringe on an employee’s liberty interest if such
remarks are "made in the course of a discharge or significant demo-
tion." Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 n.5
(4th Cir. 1988). For that proposition, we relied on decisions of our sis-
ter circuits, including Lawson v. Sheriff of Tippecanoe County, 725
F.2d 1136, 1139 (7th Cir. 1984), and Moore v. Otero, 557 F.2d 435,
438 (5th Cir. 1977). Although we had no occasion to elaborate on the
definition of "significant demotion" in Stone, the courts in Lawson
and Moore did so, with our approval. And the definitions they pro-
vided — such as an offer of "a job far beneath the one he had," where
being so demoted "is to be as effectively excluded from one’s trade
or calling as by being thrown out on the street" — squarely corre-
spond with Ridpath’s reassignment from Compliance Director to
Director of Judicial Programs (a position wholly outside his chosen
field). See Lawson, 725 F.2d at 1139. The Administrators therefore
were provided with fair and clear warning that, by banishing Ridpath
from the Department of Athletics, they were unlawfully subjecting
him to a "significant demotion" within the meaning of Stone and
authorities relied on therein.22
Finally, because it is undisputed that Ridpath was not provided any
procedural safeguards with respect to the labeling of his reassignment
as a "corrective action," it cannot be questioned that the Administra-
and false. See, e.g., Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167,
172 n.5 (4th Cir. 1988); Wooten v. Clifton Forge Sch. Bd., 655 F.2d 552,
555 (4th Cir. 1981). According to the Amended Complaint, the "correc-
tive action" label was communicated to the NCAA and to the public at
large, falsely conveying that Ridpath was at fault for the University’s
NCAA rules violations. Our precedent applies with obvious clarity to
this alleged conduct.
22
Moreover, the Administrators cannot have equated the circumstances
of Ridpath’s reassignment with the facts of Stone, in which we rejected
the plaintiff’s liberty interest claim on the ground that he had voluntarily
resigned from his employment. See 855 F.2d at 172 n.5, 178. As we
spelled out in Stone, a change in employment status is not voluntary if
it is "obtained by the employer’s misrepresentation or deception" or
"forced by the employer’s duress or coercion." Id. at 174. Viewing the
allegations of the Amended Complaint in the light most favorable to Rid-
path, the circumstances of his reassignment readily meet this standard.
RIDPATH v. BOARD OF GOVERNORS 27
tors contravened Roth’s requirement for "notice and an opportunity to
be heard." See 408 U.S. at 573. Accordingly, accepting the allegations
of the Amended Complaint as true, the Administrators contravened a
clearly established Fourteenth Amendment procedural due process
right of which a reasonable person would have known. They therefore
are not entitled to qualified immunity at this stage of these proceed-
ings on Ridpath’s due process claim.
C.
The Administrators next maintain that the district court erred in
denying their Rule 12(b)(6) motion to dismiss Ridpath’s free speech
claims on qualified immunity grounds. The Administrators are enti-
tled to qualified immunity on these claims unless each claim satisfies
both prongs of the qualified immunity test. As explained below, we
conclude that each claim meets this test.23
1.
The first question before us on the free speech claims is whether,
as to each claim, Ridpath has sufficiently alleged a violation of a First
Amendment right. See Mellen v. Bunting, 327 F.3d 355, 365 (4th Cir.
2003). Ridpath has raised two distinct free speech claims against the
Administrators. First, he maintains that being relieved from his
23
In affirming the district court’s denial of qualified immunity to the
Administrators on Ridpath’s free speech claims, we emphasize that these
proceedings are at the 12(b)(6) dismissal stage, and that we are thus
required to accept as true the facts alleged in the Amended Complaint
and view them in the light most favorable to Ridpath. See Jenkins v.
Medford, 119 F.3d 1156, 1159 (4th Cir. 1997) (en banc). Based on the
allegations of the Amended Complaint, we are unable to say that Ridpath
cannot build a factual record to demonstrate that his clearly established
First Amendment rights were contravened. Simply put, the qualified
immunity issue is open for further assessment upon development of the
factual record, and neither this decision nor the district court’s Opinion
precludes the Administrators from reasserting claims of qualified immu-
nity at a later stage of these proceedings. Cf. McVey v. Stacy, 157 F.3d
271, 279 (4th Cir. 1998) (affirming district court’s ruling to defer decid-
ing qualified immunity issue until record better developed on plaintiff’s
First Amendment claim).
28 RIDPATH v. BOARD OF GOVERNORS
adjunct teaching position in the Department of Exercise and Sports
Science constituted impermissible retaliation, in part "for his speaking
out against [the University’s] conduct during the NCAA infractions
process," and in part for "having exercised his First Amendment right
to petition the government for redress of grievance by retaining coun-
sel and filing a civil action in response to . . . constitutional viola-
tions" (the "retaliation claim"). Amended Complaint at ¶¶ 61-62.24
Second, he maintains that the Administrators threatened him profes-
sionally (and personally) if he spoke out publicly about the NCAA
investigation and that, as a result, he "refrained from immediately
and/or publicly challenging the NCAA Infractions Report and ‘cor-
rective action’ label" (the "chilling claim"). Id. at ¶¶ 57-58. We assess
in turn the sufficiency of the allegations underlying each free speech
claim.
a.
With regard to the retaliation claim, a public employer contravenes
a public employee’s First Amendment rights when it discharges or
"refuses to rehire [the] employee," or when it makes decisions relating
to "promotion, transfer, recall, and hiring based on the exercise of"
that employee’s free speech rights. Suarez Corp. Indus. v. McGraw,
202 F.3d 676, 686 (4th Cir. 2000) (internal quotation marks omitted).25
In order to prove that a retaliatory employment action violated a pub-
lic employee’s free speech rights, the employee must satisfy the three
prong-test we laid out in McVey v. Stacy, 157 F.3d 271 (4th Cir.
1998) (the "McVey test"). First, the public employee must have spo-
ken as a citizen, not as an employee, on a matter of public concern.
Id. at 277. Second, the employee’s interest in the expression at issue
24
We observe that Ridpath alleges that he was relieved of his teaching
position, not his position as Compliance Director, in retaliation for the
exercise of his First Amendment rights.
25
Contrary to the Administrators’ contention, a public employee need
not have a protected property interest in his employment to state a retali-
ation claim. See Mount Healthy City Sch. Dist. v. Doyle, 429 U.S. 274,
283-84 (1977) ("Even though he could have been discharged for no rea-
son whatever, . . . he may nonetheless establish a claim to reinstatement
if the decision not to rehire him was made by reason of his exercise of
constitutionally protected First Amendment freedoms.").
RIDPATH v. BOARD OF GOVERNORS 29
must have outweighed the employer’s "interest in providing effective
and efficient services to the public." Id. Third, there must have been
a sufficient causal nexus between the protected speech and the retalia-
tory employment action. Id. at 277-78.26
i.
Under the first prong of the McVey test, we must assess whether
the Amended Complaint has sufficiently alleged that Ridpath’s
speech was as a private citizen on a matter of public concern. See
McVey, 157 F.3d at 277. An employee’s speech involves a matter of
public concern if it addresses "an issue of social, political, or other
interest to a community." Urofsky v. Gilmore, 216 F.3d 401, 406-07
(4th Cir. 2000) (en banc). Importantly, "the place where the speech
occurs is irrelevant: An employee may speak as a citizen on a matter
of public concern at the workplace, and may speak as an employee
away from the workplace." Id. at 407. While "[t]he inquiry into the
protected status of speech is one of law, not fact," Connick v. Myers,
461 U.S. 138, 148 n.7 (1983), such status "must be determined by the
content, form, and context of a given statement, as revealed by the
whole record," id. at 147-48.
The Amended Complaint alleges that Ridpath was relieved of his
teaching duties for, inter alia, "speaking out against [the University’s]
conduct during the NCAA infractions process." Amended Complaint
at ¶ 61. It does not specify whether Ridpath’s remarks concerned the
26
The McVey test fleshes out the balancing test first articulated by the
Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968),
and further explained in later decisions. The McVey test’s first prong,
whether the employee’s speech addressed a matter of public concern, is
"[t]he threshold question." See Rankin v. McPherson, 483 U.S. 378, 384
(1987). The second prong, whether the employee’s interest in speaking
outweighed the employer’s interest in the efficient provision of public
services, embodies Pickering’s original formula. See Pickering, 391 U.S.
at 568. The McVey test’s third prong, causation, requires the employee
to demonstrate a sufficient nexus between the protected speech and an
adverse employment action by the employer. See Huang v. Bd. of Gover-
nors, 902 F.2d 1134, 1140 (4th Cir. 1990) (requiring employee to show
"but for" connection).
30 RIDPATH v. BOARD OF GOVERNORS
University’s treatment of Ridpath, its general response to the NCAA
rules violations, or its perpetration of the underlying violations. Nev-
ertheless, a district court may reject a claim at the Rule 12(b)(6) stage
only if "it appears beyond all doubt that the plaintiff can prove no set
of facts in support of his claim that would entitle him to relief."
Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001). Allegations of
NCAA rules violations by a prominent sports program at a major pub-
lic university, and the nature of the university’s handling of such alle-
gations, are matters of great "social, political, or other interest to a
community." See Urofsky, 216 F.3d at 406. We therefore cannot say
that Ridpath will be unable to build a factual record which demon-
strates that his remarks were on a matter of public concern. Moreover,
the Amended Complaint supports the inference that Ridpath com-
mented on the University’s conduct during the NCAA infractions pro-
cess in a personal capacity and not as a representative of the
University. Accordingly, Ridpath has sufficiently alleged that he was
speaking as a private citizen on a matter of public concern and satis-
fied the first prong of the McVey test.27
ii.
Under the McVey test’s second prong, commonly referred to as
"Pickering balancing," we must assess whether the Amended Com-
plaint has sufficiently alleged that Ridpath’s interest in First Amend-
ment expression outweighed the University’s interest in the efficient
provision of public services. See McVey, 157 F.3d at 277. For Picker-
ing balancing, "we must take into account the context of the employ-
ee’s speech" and "the extent to which it disrupts the operation and
mission" of the institution. Id. at 278. Factors relevant to this inquiry
include whether a public employee’s speech (1) impaired the mainte-
nance of discipline by supervisors; (2) impaired harmony among
coworkers; (3) damaged close personal relationships; (4) impeded the
performance of the public employee’s duties; (5) interfered with the
operation of the institution; (6) undermined the mission of the institu-
27
The Amended Complaint also alleges that Ridpath was relieved of
his teaching position for "retaining counsel and filing a civil action in
response to . . . constitutional violations." Amended Complaint at ¶ 62.
In their appeal, the Administrators have not challenged Ridpath’s posi-
tion that his filing of a civil action constituted protected speech.
RIDPATH v. BOARD OF GOVERNORS 31
tion; (7) was communicated to the public or to coworkers in private;
(8) conflicted with the responsibilities of the employee within the
institution; and (9) abused the authority and public accountability that
the employee’s role entailed. Id.28
Here, we cannot say that Ridpath will be unable to show that his
interest in First Amendment expression outweighed the University’s
interest in the efficient operation of his workplace. Nothing in the
Amended Complaint indicates, for example, that his comments
impaired the maintenance of discipline, hurt workplace morale, or
constituted an abuse of his position. Moreover, the Administrators
have not suggested how — or even that — Ridpath’s remarks inter-
fered with the University’s efficient operation.29
Once a factual record is developed through discovery, the evidence
could support the inference that Ridpath’s workplace was impaired as
a result of his comments and that he simply had to be terminated from
his adjunct teaching position. Such a question, however, is not to be
assessed under Rule 12(b)(6) but in Rule 56 summary judgment pro-
ceedings. See McVey, 157 F.3d at 278-79 (affirming district court’s
decision to defer deciding qualified immunity until "record is better
28
A majority of the McVey panel observed that both this Court and the
Supreme Court have also included the value of the employee’s speech to
the public in the Pickering balance. See McVey, 157 F.3d at 279(Murnaghan, J., concurring in part and concurring in the judgment)
(emphasizing importance of considering public interest in Pickering bal-
ancing); id. at 282 (Michael, J.) (concurring "except to the extent . . .
qualified by Judge Murnaghan’s separate opinion"). Judge Murnaghan
observed that, in Connick, the Supreme Court cautioned that "‘a stronger
showing [of employer interest] may be necessary if the employee’s
speech more substantially involved matters of public concern.’" Id. at
279 (quoting Connick, 461 U.S. at 152) (alteration in original). In the
present analysis, however, we need not assess the value of Ridpath’s
speech to the public, as it would be difficult to calculate based on the
Amended Complaint, and we can decide in Ridpath’s favor without
reaching it.
29
Instead, the Administrators contend that the University was a more
efficient place after Ridpath was relieved of his teaching position
because the University no longer had to pay his salary and he had been
an inefficient teacher.
32 RIDPATH v. BOARD OF GOVERNORS
developed" in part because complaint did not "resolve on its face"
second prong of McVey test). At the Rule 12(b)(6) stage, Ridpath’s
allegations warrant the inference that his free speech interests out-
weigh the detrimental effect, if any, his comments may have had on
the efficiency of his workplace. Indeed, read in the proper light, the
Amended Complaint alleges that he was relieved of his adjunct teach-
ing position for protected statements that had no impact on his work-
place whatsoever. Accepting those allegations as true and giving
Ridpath the benefit of the reasonable factual inferences, we cannot
say that "it appears beyond all doubt that [Ridpath] can prove no set
of facts" to tip the Pickering balance in his favor. See Trulock, 275
F.3d at 405. Accordingly, Ridpath has sufficiently shown that his
interest in speaking outweighed the University’s interest in promoting
the efficient provision of public services, and he has satisfied the sec-
ond prong of the McVey test.
iii.
Under the third prong of the McVey test, Ridpath must demonstrate
a causal relationship between his protected speech and the termination
of his teaching duties. See McVey, 157 F.3d at 277-78. The causation
requirement is "rigorous" in that the protected expression must have
been the "but for" cause of the adverse employment action alleged.
Huang v. Bd. of Governors, 902 F.2d 1134, 1140 (4th Cir. 1990). As
explained below, Ridpath’s Amended Complaint has sufficiently
alleged causation.
The Amended Complaint alleges that during related internal griev-
ance proceedings, a University official "testified, under oath, that Dr.
Ridpath’s adjunct faculty position was terminated, in whole or in part,
for his speaking out against [the University’s] conduct during the
NCAA infractions process." Amended Complaint at ¶ 61. It further
alleges that Ridpath was relieved of his teaching position "in direct
. . . retaliation for having exercised his First Amendment right to peti-
tion the government for redress of grievance by retaining counsel and
filing a civil action in response to . . . constitutional violations." Id.
at ¶ 62. Thus, the Amended Complaint alleges that Ridpath’s pro-
tected speech was the "but for" cause of the termination of his teach-
ing duties, satisfying the causation requirement embodied in the third
prong of the McVey test. Having met each prong of the McVey test
RIDPATH v. BOARD OF GOVERNORS 33
at this stage, Ridpath has sufficiently alleged a First Amendment
retaliation claim.
b.
We turn next to the second of Ridpath’s free speech claims, the
chilling claim. Under our precedent, "a public employer is prohibited
from threatening to discharge a public employee in an effort to chill
that employee’s rights under the First Amendment." Edwards v. City
of Goldsboro, 178 F.3d 231, 246 (4th Cir. 1999).30 A chilling claim
is essentially the derivative of a retaliation claim: if a public employer
cannot fire, demote, or similarly punish a public employee for engag-
ing in protected speech, the employer also cannot intimidate the
employee into silence by threatening impermissible retribution.
According to the Amended Complaint, each of the Administrators
warned that if Ridpath commented publicly on the NCAA investiga-
tion, he would face professional, as well as personal, repercussions.
On November 1, 2001, Cottrill told Ridpath "[y]ou . . . have no say
in the matter. You need to think about your family young man."
Amended Complaint at ¶ 57(a). Grose then advised him: "I am telling
you. You do anything to resurrect this [NCAA Infractions issues] and
I will bury you personally and professionally." Id. (alteration in origi-
nal). Later, Angel asserted at a meeting of University officials that if
Ridpath commented on the "cheap shots" taken at him in the NCAA
Infractions Report, Angel "would cut the dead limb from the tree." Id.
at ¶ 57(b). Angel even elaborated on the point, asserting that he had
handled similar situations before and would have "no problem firing
[Ridpath] on the spot" if he commented on the investigation. Id.
(alteration in original).31
30
As the Supreme Court has explained, "the threat of dismissal from
public employment is . . . a potent means of inhibiting speech." Pickering
v. Bd. of Educ., 391 U.S. 563, 574 (1968).
31
On the face of the Amended Complaint, it is unclear whether Ridpath
was at the meeting when Angel threatened to "fire [Ridpath] on the spot"
and, if not, when and how he later learned of Angel’s remarks. Reading
the Amended Complaint in the proper light, however, we should infer
that, if Ridpath was not present at the meeting, he was made aware of
Angel’s threats shortly thereafter.
34 RIDPATH v. BOARD OF GOVERNORS
Because the prohibition against the chilling of free speech derives
from the prohibition against retaliation, we must utilize a McVey-type
analysis to determine whether the speech at issue in the chilling claim
is entitled to First Amendment protection. See Edwards, 178 F.3d at
245-49 (inquiring in single McVey-type analysis whether speech was
protected for both retaliation and chilling claims). As discussed previ-
ously, the NCAA rules violations against the University, the Universi-
ty’s response to the violations, and the University’s treatment of
Ridpath were matters of public concern. See McVey, 157 F.3d at 277(requiring employee’s speech to be on matter of public concern). Fur-
thermore, the Administrators have, again, not asserted why — or even
that — they feared the University’s efficient operation might be
harmed if Ridpath, who was no longer the Compliance Director,
spoke publicly. See id. at 278 ("[W]e must take into account the con-
text of the employee’s speech including the employee’s role in the
institution and the extent to which it disrupts the operation and mis-
sion of the agency"). Accordingly, the speech at issue in the chilling
claim is protected by the First Amendment.
Reading the statements attributed to the Administrators in the
proper light, each of them was seeking to use his position at the Uni-
versity to intimidate Ridpath into silence. Under Edwards, the
Administrators’ misuse of the power vested in them by the University
contravened Ridpath’s free speech rights. Accordingly, Ridpath has
alleged facts sufficient to support his chilling claim. As a result, each
of Ridpath’s free speech claims sufficiently states the violation of a
First Amendment right, and each claim thus survives the first prong
of the qualified immunity test.
2.
Under the second prong of the qualified immunity test, we assess
whether the free speech claims would contravene clearly established
rights of which a reasonable person would have known. See Mellen
v. Bunting, 327 F.3d 355, 365 (4th Cir. 2003). We apply this test to,
first of all, Ridpath’s retaliation claim and, secondly, to his chilling
claim.
a.
The Administrators contend that Ridpath’s retaliation claim is not
based on a clearly established First Amendment right. We are con-
RIDPATH v. BOARD OF GOVERNORS 35
strained to disagree. According to the Amended Complaint, Ridpath
was relieved of his adjunct teaching position on July 14, 2003. See
Amended Complaint at ¶ 59. At that time a long line of decisions,
both the Supreme Court’s and our own, established that a public
employee could not be fired solely for making protected statements.
See, e.g., Rankin v. McPherson, 483 U.S. 378, 383 (1987) ("It is
clearly established that a State may not discharge an employee on a
basis that infringes that employee’s constitutionally protected interest
in freedom of speech."); Connick v. Myers, 461 U.S. 138, 142 (1983)
("For at least 15 years it has been settled that a State cannot condition
public employment on a basis that infringes the employee’s constitu-
tionally protected interest in freedom of expression."); McVey v.
Stacy, 157 F. 3d 271, 277 (4th Cir. 1998) ("The First Amendment
protects public employees from termination of their employment in
retaliation for their exercise of speech on matters of public concern.").
Furthermore, by the time Ridpath was relieved of his teaching posi-
tion at the University, we had been applying the "McVey test" to such
retaliation claims for more than a decade. See, e.g., McVey, 157 F.3d
at 277-78; Stroman v. Colleton County Sch. Dist., 981 F.2d 152, 156
(4th Cir. 1992). Thus, the prohibition against retaliation for protected
speech was clearly established at the time Ridpath was relieved of his
teaching position.
Our inquiry on this issue does not end here, however, because we
must also examine whether reasonable persons would have been
aware that relieving Ridpath of his adjunct teaching position for his
remarks violated his constitutionally protected free speech rights. In
making such a determination, we have aptly observed that "[o]fficials
are not liable for bad guesses in gray areas; they are liable for trans-
gressing bright lines." McVey, 157 F.3d at 277 (internal quotation
marks omitted). And because of the "sophisticated balancing"
involved in First Amendment questions, "only infrequently will it be
clearly established that a public employee’s speech on a matter of
public concern is constitutionally protected." Id. (internal quotation
marks omitted). Still, public employers enjoy only qualified — not
absolute — immunity, and a public employer can find no refuge in
qualified immunity when an adverse employment decision clearly
contravenes a public employee’s First Amendment rights.
36 RIDPATH v. BOARD OF GOVERNORS
While further factual development in this case may present a
murky picture of why Ridpath was relieved of his teaching position,
the content and context of his statements, and any negative impact his
remarks had on the efficiency of his workplace, the scene painted by
the Amended Complaint is crystal clear. Read in the proper light, it
alleges that the Administrators retaliated against Ridpath for making
protected statements that they did not like. Such activity does not
merely implicate the gray edges of the right Ridpath asserts; it goes
to its very core. And taking the allegations of the Amended Complaint
as true, a clearer violation of constitutionally protected free speech
would be difficult to fathom. Therefore, Ridpath’s retaliation claim
alleges a violation of clearly established law of which a reasonable
person would have known.32
b.
The Administrators similarly assert that Ridpath’s chilling claim is
not based on a clearly established First Amendment right. As previ-
ously discussed, comments by Ridpath concerning the NCAA rules
violations, the University’s response to those violations, or the Uni-
versity’s treatment of Ridpath would be clearly protected. In Edwards
v. City of Goldsboro, decided by us more than two years prior to the
events alleged in the Amended Complaint, we held that, under the
applicable legal principles, "a public employer is prohibited from
threatening to discharge a public employee in an effort to chill that
employee’s rights under the First Amendment." 178 F.3d 231, 246
(4th Cir. 1999). Given this precedent, we are obliged to conclude that
the Administrators’ threats violated clearly established law of which
reasonable persons would have known. Accordingly, the Administra-
32
The Administrators assert on appeal that Ridpath’s position was
eliminated, and that "no reasonable official would have known that, by
canceling a class because of budgetary concerns, he or she would be
exposed to a First Amendment claim by an adjunct faculty professor."
See Reply Br. of Appellants at 28-29. However, the Amended Complaint
alleges that Ridpath was relieved of his teaching position at the Univer-
sity in retaliation for protected speech, see Amended Complaint at ¶¶ 61-
62, and we cannot, under controlling Rule 12(b)(6) principles, accept the
Administrators’ contrary factual assertion.
RIDPATH v. BOARD OF GOVERNORS 37
tors are not entitled to qualified immunity on Ridpath’s free speech
claims at this stage in the proceedings.33
IV.
Pursuant to the foregoing, we dismiss the appeal of Coach Pruett
and affirm the denial of qualified immunity to the Board and the
Administrators.
DISMISSED IN PART AND AFFIRMED IN PART
WIDENER, Circuit Judge, concurring and dissenting:
As to Count I of the complaint, I respectfully dissent. As to Count
II, I concur in the result. I concur in the dismissal of the appeal of
Coach Pruett.
I respectfully dissent on account of the failure of the district court,
and the majority in our case, to grant qualified immunity to the
administrators at Marshall University with respect to the defamation
count, Count I of the complaint.
The § 1983 claims are based on two incidents. The first is the
NCAA infraction report of December 21, 2001, an advance copy of
which had been supplied to the University sometime previously. That
report described, at the instance of the University, the "transfer
[. . . of] the compliance director from athletics to another department
at the university" as a "corrective action [. . .]"
The plaintiff claims such use, by the University, of the term "cor-
rective action" is defamatory and has damaged his reputation so that
his opportunities for employment within his chosen profession, col-
lege athletics, have been, or will be, damaged.
33
Finally, the Appellants contend that Ridpath’s free speech claims
should be dismissed because he has not exhausted his state administra-
tive remedies. However, as the Appellants only appealed qualified
immunity rulings, we have no jurisdiction to review their administrative-
exhaustion contention.
38 RIDPATH v. BOARD OF GOVERNORS
In the first incident, based on defamation, the record does not dis-
close the words which were used by the University in reporting to the
NCAA Dr. Ridpath’s transfer as a corrective action. Neither does it
show whether that communication was oral or written.
I assume for the moment, for argument, that labeling Dr. Ridpath’s
transfer from the athletic department to be the Director of Judicial
Programs could be defamatory when described as a corrective action,
but that does not end the inquiry. Damage to Dr. Ridpath’s reputation,
which is the root cause of this law suit, is not actionable under § 1983.
The district court, in its opinion, described Dr. Ridpath’s claim:
Ridpath, on the other hand, contends that he has not alleged
that he had a property interest in his employment at MU.
Instead, he asserts that the ‘corrective action’ label assigned
to his transfer to the position of Director of Judicial pro-
grams at MU without due process has destroyed his reputa-
tion in the field of collegiate athletics because that label is
generally understood by those connected to college athletics
to be a code term importing dishonesty and incompetence
on the part of individuals to whom it is alleged. J.A. 242.
(Italics added.)
In my opinion, this case is controlled by Siegert v. Gilley, 500 U.S.
226 (1991). In that case, St. Elizabeths Hospital, a facility of the
United States, notified Siegert, a clinical psychologist, that it was pre-
paring to terminate his employment, giving as the reason that his
"‘proposed removal was based upon his inability to report for duty in
a dependable and reliable manner, his failure to comply with supervi-
sory directives, and cumulative charges of absence without approved
leave.’ . . . After meeting with hospital officials, Siegert agreed to
resign from the hospital and thereby avoid a termination that might
damage his reputation." 500 U.S. at 228. Siegert then began work as
a clinical psychologist in a United States Army hospital in Bremerha-
ven, West Germany. At that Army hospital, he signed a credential
information request form, asking that St. Elizabeths provide all infor-
mation on job performance and privileges while at St. Elizabeths. Sie-
gert’s request was referred to Gilley, who had been Siegert’s
supervisor at St. Elizabeths. Gilley notified the Army that
RIDPATH v. BOARD OF GOVERNORS 39
"he could not recommend [Siegert] for privileges as a psy-
chologist." . . . In that letter, Gilley wrote that he "consid-
ered Dr. Siegert to be both inept and unethical, perhaps the
least trustworthy individual I have supervised in my thirteen
years at [St. Elizabeths]." 500 U.S. at 228.
After receiving Gilley’s letter, the Army told Siegert that because
reports about him were extremely unfavorable, its Credential Com-
mittee was recommending that he not be credentialed. He later was
given provisional credentials limited to his work with adults. Siegert’s
suit against Gilley followed. Siegert contended that "the loss of his
position at the Bremerhaven Hospital, followed by the refusal of the
Army hospital in Stuttgart to consider his application for employment,
and his general inability to find comparable work because of Gilley’s
letter, constituted such a deprivation [of a ‘liberty interest’ secured by
the Fifth Amendment to the United States Constitution]." 500 U.S. at
232.
The Court decided that injury to reputation is not an interest pro-
tected under the Constitution. "Defamation, by itself, is a tort action-
able under the laws of most States, but not a Constitutional
deprivation." 500 U.S. at 233. The Court reasoned that
The statements contained in the letter would undoubtedly
damage the reputation of one in his position, and impair his
future employment prospects. . . . But so long as such dam-
age flows from injury caused by the defendant to a plain-
tiff’s reputation, it may be recoverable under state tort law
but it is not recoverable in a Bivens action. 500 U.S. at 234.
The court affirmed the dismissal of Siegert’s Bivens claim, and its
holding was explicit and free from doubt:
We hold that the petitioner in this case [Siegert] failed to
satisfy the first inquiry in the examination of such a claim;
he failed to allege the violation of a clearly established con-
stitutional right. 500 U.S. at 231.
And the Court noted, at 229 and 234, that Siegert did not make a
claim of diverse citizenship to prosecute a claim for defamation. We
40 RIDPATH v. BOARD OF GOVERNORS
note that Dr. Ridpath has made no state law claim for defamation
here. If Dr. Ridpath had wished to bring a defamation suit for slander
or libel in a court of appropriate jurisdiction, he might have done so,
but that is not a question before us.
I note that, in DiMeglio v. Haines, 45 F.3d 790 (4th Cir. 1995), a
§ 1983 case as here, we followed Siegert and held "[i]n deciding qual-
ified immunity claims, courts should determine whether the plaintiff
has alleged the violation of a constitutional right that was clearly
established at the time of the defendant’s actions, before they proceed
to address any ancillary issues." 45 F.3d at 797.
In my opinion, the facts in the Siegert case and the facts in the
present case are so nearly the same that Siegert must control. The
defamatory language in Siegert is equally as defamatory as that
claimed here; the claims of Siegert and Dr. Ridpath are each based on
due process, whether under the Fifth Amendment or the Fourteenth,
is a matter of indifference; and both Siegert and Dr. Ridpath claim
that resulting damage is because of injury to reputation, which the
Court held not actionable under Siegert as a Constitutional depriva-
tion. 500 U.S. at 233.
No violation of a Constitutional right having been established,
qualified immunity should have been granted as to the defamation
claim. Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir. 1991); Kitchen
v. Upshaw, 286 F.3d 179, 189 (4th Cir. 2002); DiMeglio, 45 F.3d at
808.
As for the second incident, Count II of the complaint, based on free
speech, I concur in the result on the basis of our decision in McVey
v. Stacy, 157 F.3d 271 (4th Cir. 1998). In McVey, the district court
had declined to dismiss the First Amendment claim, as here, and it
rejected qualified immunity "at this stage in the litigation" because
"the record had not been developed." McVey, 157 F.3d at 275. Our
decision was to "affirm the district court’s ruling to defer deciding on
the qualified immunity issue until the record is better developed on
the immunity issues." McVey, 157 F.3d at 279. I continue to disagree
with the majority that the complaint alone justifies a finding that Rid-
path spoke as a citizen rather than as an employee, largely because he
had been instructed by his superiors not to speak out publicly. See
RIDPATH v. BOARD OF GOVERNORS 41
Connick v. Myers, 461 U.S. 138, esp. p.147, (1983) (deciding for the
State, the Court found, at p.150, "The Pickering balance requires full
consideration of the government’s interest in the effective and effi-
cient fulfillment of its responsibilities to the public."); and DiMeglio
v. Haines, 45 F.3d 790 (4th Cir. 1995) (holding a municipal govern-
ment employee’s remarks may not be protected under Connick if he
was speaking as an employee, rather than as a citizen). Nevertheless,
I believe a concurrence in the result is more in order than a dissent
in view of the majority’s decision that the matter is not closed. See
footnote 23, supra. So any present error on this account is harmless.