McCormick v. District of Columbia , 752 F.3d 980 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2013 Decided May 27, 2014
No. 12-7115
EMMETTE MCCORMICK, JR.,
APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-00570)
Robert C. Seldon argued the cause for appellant. With him
on the briefs was Lauren E. Marsh.
Holly M. Johnson, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the cause
for appellees. With her on the brief were Irvin B. Nathan,
Attorney General, Todd S. Kim, Solicitor General, and Donna
M. Murasky, Deputy Solicitor General at the time the brief was
filed.
Before: BROWN, Circuit Judge, and WILLIAMS and
SENTELLE, Senior Circuit Judges.
2
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Emmette McCormick, Jr.,
a discharged supervisory employee of the District of Columbia
Department of Corrections, brought this action against the
District and two of its officials, alleging violations of his rights
under the District’s whistleblower statute and of his liberty
interests under the Fifth Amendment. He appeals from the
district court’s grant of summary judgment in the defendants’
favor on all counts. Because we agree with the district court that
there is no genuine issue of material fact and that the defendants
are entitled to judgment as a matter of law, we affirm the grant
of summary judgment.
I. BACKGROUND
A. Factual History
In 2006, appellant was a Supervisory Correctional Officer
with the District of Columbia Department of Corrections. In
that capacity, he was an at-will employee in the Management
Supervisory Service. On January 13 of that year, approximately
100 inmates were mistakenly released from their cells at the
central detention facility, where McCormick served in his
supervisory capacity. Numerous correctional officers, including
appellant, responded to the situation to get the inmates back into
their cells. McCormick maced at least two inmates after they
did not follow his instructions. During the disturbance, some
inmate on a higher floor threw a bucket of ice water over
McCormick. He did not see which inmate was responsible.
Later evidence identified Michael Tobias as the inmate who had
thrown “a watery liquid substance” at McCormick. After order
was largely restored in the facility, McCormick had Tobias
brought to the sally port, an enclosed entry and security area,
3
and confronted him there. The parties do not agree on precisely
what occurred there.
At the conclusion of the disturbance, each on-duty officer
was required to file a “Report of Significant Incident.” Such
reports, required to be filed following any out-of-the-ordinary
event at the detention facility, should include any use of force by
a corrections officer on an inmate or physical assault on a
corrections officer by an inmate, as well as any injuries to an
officer or inmate. None of the reports filed the day of the
incident reported McCormick as having struck Tobias.
A few days after the incident, someone representing herself
as a member of Tobias’s family sent an email to a city council
member, alleging that after the ice water incident, McCormick
had Tobias escorted to the enclosed sally port and struck him in
the face and ear while six other guards held him. The email was
forwarded to the Department of Corrections and passed on to
Internal Affairs for investigation. Wanda Patten, Chief of
Internal Affairs, directed investigator Valerie Beard to conduct
the investigation.
As we set forth the results of the investigation, we note that
the parties disagree as to the truth of the statements obtained and
the accuracy of the investigators’ conclusions. However, as is
pertinent to the case before the district court on summary
judgment, there is no genuine issue of fact as to what the
investigation reports, only as to the accuracy of the witness
statements obtained by the investigators, which is not a matter
for the court’s review.
One corrections officer, Jimmy Harper, stated under oath
that after the inmates were returned to their cells, McCormick
inquired at the control module where Harper was stationed about
the inmate who had thrown water on him. Harper then helped
4
McCormick find Tobias in his cell and Tobias “was escorted to
the sally port.” Then, when Harper was returning to the control
module, he witnessed McCormick slap the handcuffed inmate
while saying to him, “You better never throw s*** on me
again.”
Another corrections officer, David Thomas, stated under
oath that he remembered the inmate being taken from his cell in
handcuffs to the sally port. He also saw McCormick strike the
handcuffed inmate with his open hand.
Corrections officer Kirkland Marion testified that he
accompanied McCormick and five other officers to Tobias’s cell
and that Tobias was taken from the cell in handcuffs to the sally
port. Although Marion did not accompany McCormick, the
other officers, and Tobias to the sally port, he arrived there
sometime after they did. When he was there, he saw and heard
McCormick yelling, “Don’t ever throw s*** at me again.” He
did not, however, see McCormick strike Tobias.
Senior correctional officer James McElhaney told Internal
Affairs that he saw “McCormick yelling at Tobias” in the sally
port and that McCormick was “in Tobias’s face and Tobias had
on handcuffs.” McElhaney witnessed the incident through the
glass of a closed door and could not hear what McCormick was
saying. However, he discerned from McCormick’s gestures that
McCormick was yelling. Like Marion, McElhaney did not see
McCormick strike Tobias. Two other officers gave accounts of
events in the sally port in which they apparently confused
Tobias with one of the inmates who had been maced, but neither
of them reported seeing McCormick strike anyone. Ten other
correctional officers were interviewed and reported they had not
witnessed the incident.
5
Although Tobias initially refused medical care, writing “I
feel better,” he later asserted that he made that refusal after
McCormick had threatened to put him in lockdown. The day
after the incident, a doctor examined Tobias and found that his
right ear had a small streak of blood about 4mm long, lying
across the eardrum, and that he had suffered mild trauma to his
right jaw.
Based on the results of the investigation, Valerie Beard, the
Internal Affairs investigator, concluded that “McCormick struck
inmate Michael Tobias across the right side of his face with an
open hand at least once while he was handcuffed in the sally
port.” She concluded that McCormick had “displayed a blatant
disregard for the agency’s established guidelines for the use of
force” and may have violated “the assault statute of the Criminal
Code of the District of Columbia.”
Investigator Beard referred her report to her superior Patten,
who reviewed the report and Beard’s findings. Patten made
corrections in form, but submitted the report to Devon Brown,
the Director of the Department of Corrections, without
substantive change. Director Brown placed McCormick on
administrative leave on March 9, 2006, after Patten told him that
McCormick had “inappropriately, without just cause struck an
inmate under his care.”
According to Director Brown, he then wrote to the Deputy
Mayor of the District of Columbia, requesting approval to
terminate McCormick, as was required for the termination of at-
will employees of the District of Columbia Management
Supervisory Service, like McCormick. Though no copy of that
letter was ever produced, Brown proceeded with the termination,
and there is no contention that the Deputy Mayor ever
disapproved the termination.
6
Brown testified that he terminated McCormick because
Internal Affairs had concluded that McCormick had assaulted a
handcuffed inmate. He testified that he was aware of the
evidence from the other corrections officers, both those who did
and did not report seeing the incident. He further testified that
he was aware that none of the officers had included the assault
in their initial reports of the events of January 13 and had issued
a directive to the staff that a “code of silence . . . would not be
accepted in the department.” At no time did Director Brown or
the Department of Corrections publish the Internal Affairs
report. The report was not placed in McCormick’s personnel
file. Brown did not provide McCormick’s termination letter to
anyone outside the Department. He did not disclose the basis of
McCormick’s termination to anyone other than the Deputy
Mayor, and that disclosure was necessary to obtain authorization
for the termination. Beyond that, at some point after the
investigation was complete, the Internal Affairs report was
forwarded to the United States Attorney’s Office for any
criminal investigation that office might determine to conduct.
B. The Litigation
On February 21, 2007, McCormick filed the present action
in the Superior Court of the District of Columbia against the
District of Columbia, Department of Corrections Director Devon
Brown, and Chief of Internal Affairs Wanda Patten. He alleged
a claim against the District of Columbia for wrongful discharge,
in violation of the District of Columbia Whistleblower
Protection Act (“WPA”), D.C. Code § 1–615.51 et seq. (2006).
He further alleged violation by all defendants of his
constitutional rights, specifically of his liberty interests under
the Fifth Amendment without due process. Thereafter, the
District of Columbia removed the action to the district court,
where it proceeded to the summary judgment motions and the
entry of summary judgment in favor of all defendants now
7
before this court. McCormick v. District of Columbia, 899 F.
Supp. 2d 59 (D.D.C. 2012). We review the entry of summary
judgment de novo, drawing all inferences from the evidence in
favor of the nonmovant. Reeves v. Sanderson Plumbing Prods.,
530 U.S. 133, 150 (2000).
II. THE WHISTLEBLOWER PROTECTION ACT
The WPA, in pertinent part, provides that “[a] supervisor
shall not take . . . a prohibited personnel action or otherwise
retaliate against an employee because of the employee’s
protected disclosure . . . .” D.C. Code § 1–615.53 (2001). The
statute defines “protected disclosure” as:
any disclosure of information, not specifically prohibited by
statute, . . . by an employee to a supervisor or a public body
that the employee reasonably believes evidences:
(A) Gross mismanagement;
(B) Gross misuse or waste of public resources or funds;
(C) Abuse of authority in connection with the
administration of a public program or the execution of a
public contract;
(D) A violation of a federal, state, or local law, rule, or
regulation, or of a term of a contract between the District
government and a District government contractor which is
not of a merely technical or minimal nature; or
(E) A substantial and specific danger to the public health
and safety.
8
D.C. Code § 1–615.52(a)(6). McCormick contends that his
termination was not in fact because of the events of January 13,
2006, but was instead in retaliation for protected disclosures that
he had made almost a year earlier. Specifically, he alleges that
in March of 2005, he discovered that Wanda Patten, now a
defendant-appellant in this action, had improperly allowed
unredacted statements by two correctional officers slated to
testify in the prosecution of a violent inmate to fall into the
hands of that inmate. The unredacted statements dangerously
contained the home addresses of the two witness officers.
McCormick reported this impropriety to the Deputy Director of
DOC and the Office of Internal Affairs. We agree with the
district court that the evidence of record cannot survive
summary judgment on this claim.
Retaliation claims under the District of Columbia’s
Whistleblower Protection Act are subject to analysis under “the
burden-shifting framework established by McDonnell-Douglas
Corp. v. Green, 411 U.S. 792 (1973).” Payne v. District of
Columbia, 722 F.3d 345, 353 (D.C. Cir. 2013). Applying that
analysis at the stage of summary judgment, we determine first
whether the plaintiff has made out “a prima facie case.” In order
to establish such a case of retaliation, the plaintiff must present
“evidence of retaliation sufficient for a reasonable jury to
conclude that his protected activity was a contributing factor in
the alleged prohibited personnel action.” Id. (internal quotations
and citations omitted). Under the McDonnell-Douglas analysis,
the presentation of a prima facie case shifts the burden of proof
to a defendant employer, but McCormick has not established a
prima facie case, and therefore the burden does not shift.
In order to survive a summary judgment motion under the
McDonnell-Douglas framework as applied to the District of
Columbia whistleblower statute, a plaintiff must “challenge the
motion for summary judgment with a proffer of admissible
9
evidence that [his] ‘protected activity’ . . . was a ‘contributing
factor’” in his adverse employment actions. Johnson v. District
of Columbia, 935 A.2d 1113, 1118 (D.C. 2007); see also
O’Donnell v. Barry, 148 F.3d 1126, 1133 (D.C. Cir. 1998)
(“[T]he employee must show that [his] speech was a substantial
or motivating factor in promoting the retaliatory or punitive act
of which [he] complains.”). McCormick has offered no direct
evidence that the decision by the Director of the Department of
Corrections to terminate him was motivated by his earlier
disclosures of the mishandling of confidential identity
information.
Of course it is not surprising that there is no direct evidence,
and “it is indeed common that causation elements dependent
upon the intent of an actor would be proven by circumstantial
rather than direct evidence.” Payne, 722 F.3d at 354. The
difficulty for McCormick is he has not provided the necessary
circumstantial evidence to fill the gap. All he has really shown
on the subject of retaliation is that he made a disclosure in
March of 2005 and he suffered adverse employment actions in
January of 2006. As we observed in Payne, it is true that
“temporal proximity” between a protected disclosure and a
termination is circumstantial evidence of causation. But as we
further observed in Payne, “[o]nce the time between a protected
disclosure and a negative employment action has stretched to
two-thirds of a year there is no temporal proximity.” Id.
(internal quotations omitted). Indeed, in Johnson, the District of
Columbia Court of Appeals, whose decisions bind us on matters
of D.C. law, rejected a “four-month lapse of time as proof of a
causal connection between the protected disclosures and the
adverse actions.” 935 A.2d at 1120.1
1
Although McCormick stresses the fact that Beard—who recommended the
decision to terminate him—was a subordinate of Patten’s, whom he alleges
has a motive to retaliate, and thereby emphasizes that Beard might have had
10
Obviously the ten-month passage of time between the
disclosures and the actions exceeds the two-thirds of a year held
inadequate in Payne and the four months rejected in Johnson.
Like the courts in those cases, we cannot conclude that the
plaintiff has provided evidence of causation sufficient to survive
summary judgment or to shift the burden to the defense.
McCormick attempts to bridge the gap by reference to events
occurring in June of 2005. According to McCormick’s proffer,
Patten first tried to retaliate for his disclosure by recommending
his termination based on a discrepancy between his report and
that of another officer in an investigation of crack cocaine in an
inmate’s cell. Under McCormick’s theory, that incident,
coupled with the incident currently under litigation which
resulted in his termination, evidences an on-going retaliation
based on his initial disclosures against Patten.
The difficulties with this theory are numerous. In the first
place, we do not know that the June incident was retaliatory.
There is no temporal proximity to the present alleged events.
The gap between the June incident and the January one is longer
than the interval rejected as circumstantial evidence in Johnson
and equals the interval rejected by us in Payne. Further, there
is no evidence to connect the actions against McCormick in June
of 2005 with those in the present case. In addition to the lack of
circumstantial or other evidence of retaliatory causation,
McCormick also faces the inescapable fact that Patten, the only
official against whom he had made a disclosure and who might
therefore be suspected of retaliation, did not make the decision
to take the adverse employment action. According to the
evidence before the district court and before us, Valerie Beard
knowledge of his prior disclosures, these bits of evidence do not contribute
to the establishment of a prima facie case. Presumably in every case where
an employee alleges retaliation, the action claimed to be retaliatory will be in
the same employment organization as the blown whistle. Without some
evidence of retaliatory intent, the prima facie case is not made.
11
was the initial recommender of termination, and Director Brown
made the decision to effect that employment action.
We note that the district court did not decide whether
McCormick had made out a prima facie case but assumed for
purposes of the motion that he had and proceeded to the next
steps of the McDonnell-Douglas analysis. We recall, however,
that we review the decision of the district court on summary
judgment de novo and may affirm on a different theory than that
relied upon by the district court. See, e.g., Kingman Park Civic
Ass’n v. Williams, 348 F.3d 1033, 1036 (D.C. Cir. 2003); see
also 3883 Connecticut LLC v. District of Columbia, 336 F.3d
1068, 1069 (D.C. Cir. 2003). However, we observe that the
district court’s reasoning concerning the further steps of the
McDonnell-Douglas analysis is sound. Even if McCormick had
made out a prima facie case of retaliatory motive, the question
would still remain as to whether that animus was in fact the
cause of his discharge, or whether for independent lawful
reasons the employer would have taken the same action without
respect to retaliatory motive. As the district court observed, the
only evidence on this point is that the Department “terminated
Plaintiff because Internal Affairs found that he struck a
restrained inmate.” McCormick, 899 F. Supp. 2d at 70. And as
the district court further observed, McCormick offered no
evidence in rebuttal.
As the district court acknowledged, and as we observed
above, the parties differ as to the veracity of the witnesses
against McCormick, “but whether Plaintiff struck a restrained
inmate is a wholly different factual question from whether the
Department of Corrections terminated Plaintiff because its
investigation found that he had.” Id. It is not our duty to sit as
a super board of employment, reviewing the decision of the
employer on the underlying facts. The investigation disclosed
a dischargable event. We do not have the authority, nor did the
12
district court, to conduct a trial of the events investigated in the
Internal Affairs investigation. The relevant fact is that the
investigation revealed serious misconduct by McCormick. The
evidence further reveals that based on that investigation, the
Director terminated McCormick. The witnesses against
McCormick may have been wrong. They may have all been
right, or some right and some wrong. The fact remains, the
evidence is that the employer terminated McCormick not for the
events of March 2005, but those of January 2006. We affirm the
grant of summary judgment on the claims under the
Whistleblower Act.
III. THE CONSTITUTIONAL CLAIM
In addition to his claim under the WPA, McCormick asserts
a constitutional claim against the District, Brown, and Patten.
He argues that his “for cause” termination deprived him of a
constitutionally protected interest in the pursuit of a further
career in the field of corrections. According to McCormick,
when he applies in the future for corrections positions with the
federal government or with states or municipalities, he will be
subject to a background investigation, requiring him to disclose
that he was terminated for cause for assaulting a restrained
inmate. He further offers evidence of record that he has applied
for and been rejected from numerous positions in federal law
enforcement and as a security guard. He argues, therefore, that
the for-cause termination has precluded and will continue to
preclude him “from pursuing” a career in his “chosen” field of
corrections. Appellant’s Br. at 38 (citing O’Donnell, 148 F.3d
at 1141). McCormick argues, therefore, that this is a deprivation
of his liberty interests and that due process requires that he be
afforded a pre-termination hearing or other adequate process for
the protection of his right.
13
The district court agreed with McCormick that the first
threshold for a due process claim had been crossed. That is, it
agreed that McCormick had been deprived of a protected liberty
interest, but held that District of Columbia law afforded
adequate process for that deprivation. More specifically, the
district court held that the District of Columbia Comprehensive
Merit Personnel Act, D.C. Code § 1–601.01 et seq. (2006),
provided post-termination hearings that afforded the process
necessary to the protection of the employees’ constitutional
rights. On appeal, the District of Columbia concedes that the
Personnel Act does not provide post-termination hearings for at-
will employees in the Management Supervisory Service such as
McCormick. However, although the district court erred in its
reason for granting summary judgment in favor of the District,
as we noted above, we review the decision of the district court
on summary judgment de novo and may affirm on a different
theory than that relied upon by the district court.
To sustain a procedural due process claim, a plaintiff must
first demonstrate the existence of a protected liberty or property
interest. See Board of Regents v. Roth, 408 U.S. 564, 569–70
(1972). At first reading, the record does not support a
conclusion that the District of Columbia deprived appellant of
a legally protected interest. As we noted in Kassem v. Wash.
Hosp. Ctr., 513 F.3d 251(D.C. Cir. 2007), “‘It has long been
settled in the District of Columbia that an employer may
discharge an at-will employee at any time and for any reason, or
for no reason at all.’” Id. at 254 (quoting Adams v. George W.
Cochran & Co., 597 A.2d 28, 30 (D.C. 1991) (collecting
authorities)). Normally, one cannot be deprived unlawfully of
something to which one had no legally protected right before the
deprivation. The parties, however, agree that there are two
theories, drawn from Roth, that provide limited circumstances
under which an at-will employee may establish a due process
claim arising out of his termination.
14
It is true that in O’Donnell we recognized the possibility of
an action for deprivation of a liberty interest without due process
where an employee is terminated. But the availability of such
an action in the case of an at-will employee is at best very
narrow. The first of two theories to which Roth and O’Donnell
refer, supporting the availability of such an action, is a
“reputation-plus claim,” see O’Donnell, 148 F.3d at 1140. This
theory makes the termination actionable only where the
terminating employer has disseminated the reasons for the
termination and such dissemination is defamatory. See Orange
v. District of Columbia, 59 F.3d 1267, 1274 (D.C. Cir. 1995).
The second theory, which is not always distinct from the first,
provides a remedy where the terminating employer imposes
upon the discharged employee “‘a stigma or other disability that
foreclosed [the plaintiff’s] freedom to take advantage of other
employment opportunities.’” O’Donnell, 148 F.3d at 1140
(quoting Roth, 408 U.S. at 573). According to our dicta in
O’Donnell, the difference between the two theories of recovery
is that the “stigma” claim, unlike the reputation-plus claim,
“does not depend on official speech” but on a “stigma or
disability arising from official action.” Id.
It is not totally clear from McCormick’s pleadings in the
district court or his initial brief before us which of the two
theories he is relying upon, though in his reply brief in this court
he expressly disavows the reputation-plus theory in favor of the
stigma approach. In either event, appellant has not established
that the district court erred in its judgment, although we affirm
on different reasoning. Appellant’s factual theory is that the
appellees took the official act of firing him. He cannot obtain
other employment in his chosen field, therefore he has suffered
stigma. The stigma arises from his having to tell prospective
employers why he was fired. But the only official act
committed by the defendants is the termination. The termination
of an at-will employee is not sufficient to establish the
15
deprivation of protected liberty interests.
The Supreme Court in Bishop v. Wood, 426 U.S. 341
(1975), effectively disposes of McCormick’s claims. In Bishop,
the Court recognized that the Roth Court had stated “that the
nonretention of an untenured [employee] might make him
somewhat less attractive to other employers.” Id. at 348.
Nonetheless, the Roth Court had “concluded that it would stretch
the concept too far ‘to suggest that a person is deprived of
‘liberty’ when he simply is not rehired in one job but remains as
free as before to seek another.’” Bishop, 426 U.S. at 348
(quoting Roth, 408 U.S. at 575). The Bishop Court went on to
hold that the “same conclusion applies to the discharge of a
public employee whose position is terminable at the will of the
employer when there is no public disclosure of the reasons for
the discharge.” Id. Unfortunately for McCormick, that
language precisely describes his case.
Were we to hold that the termination of an at-will employee
without hearing is a deprivation of due process, we would
effectively eliminate from the law the well-recognized status of
at-will employee. As the Supreme Court summed up the
proposition in Bishop:
The federal court is not the appropriate forum in which to
review the multitude of personnel decisions that are made
daily by public agencies. We must accept the harsh fact
that numerous individual mistakes are inevitable in the day-
to-day administration of our affairs. The United States
Constitution cannot feasibly be construed to require federal
judicial review for every such error. . . . The Due Process
Clause of the Fourteenth Amendment is not a guarantee
against incorrect or ill-advised personnel decisions.
16
426 U.S. at 349–50. McCormick asks us to provide the forum
which the Supreme Court largely foreclosed in Bishop. Under
established law we cannot feasibly examine the conclusions of
the investigator or the Director of the Department of
Corrections. Based on the results of that investigation, which
the Director accepted, McCormick was guilty of serious
misconduct, and he was terminated. Any error in the decision
to terminate first appears to be one of the numerous and
inevitable mistakes recognized in Bishop.
McCormick, however, in reliance on the stigma theory,
asserts that his liberty interest in further employment in his
chosen profession supports a claim for deprivation of liberty
without due process. This, he asserts, is actionable even though
he was an at-will employee and there was no government
publication of derogatory information about him. In support of
his theory, he points to O’Donnell, supra, wherein this court, in
rejecting the stigma theory on the facts before it, discussed—not
communication by the government—but the plaintiff’s
remaining reasonable job opportunities in the field. Id., 148
F.3d at 1140–41. Similarly, in Taylor v. Resolution Trust Corp.,
where the government did make public statements, we focused
on the plaintiff’s future employment prospects without reliance
on the government’s publications. 56 F.3d 1497, 1506–07 (D.C.
Cir. 1995). Bishop v. Wood, supra, does not address this
understanding.
Therefore, Bishop does not dispose of this theory. The
plaintiff in Bishop advanced a pair of reasons why his
termination violated his liberty interest: (1) because the “reasons
given for his discharge are so serious as to constitute a stigma
that may severely damage his reputation in the community” and
(2) that the reasons given were false. Bishop, 426 U.S. at 347.
The Court rejected the first claim on the grounds that the reasons
for termination had not been made public and therefore could
17
not affect Bishop’s “‘good name, reputation, honor, or
integrity.’” Id. at 348 (quoting Wisconsin v. Constantineau, 400
U.S. 433, 437 (1971)). Although the Court referred to the
“stigma” created by the dismissal, it used that term to refer to
the effect on his reputation, not on his future employment
prospects. Id. at 347. And Bishop repeated the assumption in
Roth that the individual was “as free as before to seek another”
job. Id. at 348. If the plaintiff’s allegations did not contradict
that assumption, plainly he had not made out a case that he was
broadly precluded from his chosen profession.
McCormick, in contrast, cites deposition testimony to the
effect that he can never again be employed in the corrections
field and that therefore, his termination implicates his liberty
interest. Appellant’s Reply Br. at 12 (citing J.A. 428–29;
500–03 (testimony of former Acting Warden Corbett and
Director Brown)). Although that testimony is not as compelling
as McCormick suggests, it is arguably sufficient to establish a
“genuine dispute as to [a] material fact,” Fed. R. Civ. P.
56(a)—namely whether the circumstances of the termination
had the broad effect of barring him from further employment in
his chosen profession.
Nonetheless, we affirm the judgment of the district court
because any deprivation of liberty by stigmatizing was not
without due process. In this case due process requires only that
McCormick have “an opportunity to clear his name.” Codd v.
Velger, 429 U.S. 624, 627 (1977). The basic requirement in
such a hearing is minimal: it must provide notice of the charges
and an opportunity to refute them effectively. Id.; Doe v. DOJ,
753 F.2d 1092, 1112 (D.C. Cir. 1985). The Second Circuit, for
example, has found adequate an administrative process that
provides “the means necessary to clear [the plaintiff’s] name,
including the opportunity to present evidence, call witnesses,
cross-examine witnesses, and make an oral presentation through
18
union-selected counsel.” Segal v. City of N.Y., 459 F.3d 207,
216 (2d Cir. 2006). Other courts have described the procedural
requirements as having “substantial flexibility,” but certainly
being met where “the claimant ha[d] notice of the charges which
have been raised against him, and an opportunity to refute, by
cross-examination or independent evidence, the allegations
which gave rise to the reputational injury.” Campbell v. Pierce
Cnty., Ga., 741 F.2d 1342, 1345 (11th Cir. 1984). And the
Eighth Circuit found adequate a hearing where a dismissed
school supervisor was given unlimited time to speak before the
school board and have his attorney speak on his behalf.
Hammer v. City of Osage Beach, 318 F.3d 832, 836, 840-41 (8th
Cir. 2003).
Although the District acknowledges that its argument before
the district court erred as to the forum in which McCormick
could have sought relief, Appellee’s Br. at 39, it seems correct
in arguing before us that McCormick could have pursued an
action for review, including one for severance, in Superior Court
(or in the district court once the case was removed). D.C. Code
§§ 1-606.03; 1-609.54(b). Such an action would meet the
requirements of a name-clearing hearing. Indeed, McCormick
does not deny that this procedure would have provided an
adequate hearing, instead protesting that he could not have
brought a suit for severance because he was in the Management
Supervisory Service, Appellant’s Reply Br. at 16. That assertion
seems flatly contradicted by D.C. Code § 1-609.54, which
provides a severance schedule for members of the Management
Supervisory Service.
In short, even assuming that McCormick has provided
sufficient evidence of a deprivation of his liberty interest, such
deprivation was not without due process, and we agree with the
district court that the appellees were entitled to summary
judgment.
19
CONCLUSION
We have considered the other issues discussed by the
parties and conclude that none of them warrant separate
discussion. For the reasons set forth above, the judgment of the
district court is
Affirmed.