Walker v. Tyler

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GEORGE N. WALKER, JR.,
Plaintiff-Appellant,

v.

ROSLYN C. TYLER, Individually and
in her official capacity as
Chairperson, Board of Supervisors
County of Sussex, Virginia; GLOVER
W. PEGRAM, Individually and in his
official capacity as a Member of the
Board of Supervisors County of
Sussex, Virginia; R. L. WESTBROOK,
Individually and in his official
No. 96-1145
capacity as a Member of the Board
of Supervisors County of Sussex,
Virginia; JAMES E. BELSHAM,
Individually and in his official
capacity as a Member of the Board
of Supervisors County of Sussex,
Virginia,
Defendant-Appellees,

v.

ONNIE L. WOODRUFF, Individually;
BRENDA WOODRUFF,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-95-587)

Submitted: September 24, 1996
Decided: October 24, 1996

Before HAMILTON, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Beverly D. Crawford, Sa'ad El-Amin, EL-AMIN & CRAWFORD,
P.C., Richmond, Virginia, for Appellant. E. Wayne Powell, LAW
OFFICES OF E. WAYNE POWELL, Richmond, Virginia; Beverly
W. Snukals, Rhonda M. Harmon, MEZZULLO & MCCANDLISH,
Richmond, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiff George N. Walker, Jr., appeals the district court's order
granting Defendants'1 motions to dismiss Walker's defamation and
denial of due process claims in this action arising from his termina-
tion by the Board of Supervisors ("Board") from his position as Sus-
sex County Administrator. Because we find that the statements of
Defendants cannot reasonably be interpreted to express defamatory
meanings, we affirm.
_________________________________________________________________
1 Defendants/Appellees are Roslyn C. Tyler, who at the times relevant
to this suit was the Chairperson of the Board of Supervisors of Sussex
County, and Glover W. Pegram, R. L. Westbrook, and James E. Bel-
sham, who were members of the Board.

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In his complaint, Walker alleged that Peggy Pate and John Burns,
two persons hired by Walker, complained to the Board that Walker
was awarding unauthorized pay increases and was running his office
through "power and intimidation."

The Board suspended Walker and hired an independent investiga-
tor to audit the county's finances. In explaining the Board's decision,
Defendant Roslyn C. Tyler told a reporter that the Board "had some
financial questions" which might require a change in accounting prac-
tices. Walker was reinstated after two weeks.

Approximately one month later, the Board met in executive session
to receive the report of the auditor. After reconvening in open session,
Tyler told Walker that the Board had lost confidence in Walker's abil-
ity to carry out his official duties and asked for his resignation.
Walker asked for an opportunity to respond, but his requests were
refused. Although he never submitted a written resignation, Walker
vacated his office and ceased acting as the County Administrator.

After the meeting, Defendants Tyler and James E. Belsham told a
reporter for the Richmond Times-Dispatch that the Board had
requested Walker's resignation in part because of questions raised by
the independent audit. In a Times-Dispatch article, the reporter cou-
pled Belsham and Tyler's comments with Pate's claims of "unusual
accounting procedures." A subsequent article in the Sussex-Surry
Dispatch quoted Belsham as stating that the Board had "lost confi-
dence" in Walker.

Walker requested that Tyler correct the impression that he was
asked to resign because of financial wrongdoing. He also asked for
the auditor's report. The Board complied with neither request.

The Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6)
because the statements complained of by the plaintiff were not action-
able as a matter of law. The district court granted the motions.2
Walker appeals.
_________________________________________________________________
2 The district court also dismissed Walker's breach of contract claim,
but Walker has abandoned that claim on appeal.

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Complaints dismissed for failure to state a claim are reviewed de
novo. Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th
Cir. 1989). The applicable legal standard is that"a complaint should
not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Conley v. Gibson, 355 U.S.
41, 45-46 (1957). All factual inferences must be assessed in the light
most favorable to the non-moving party. Ross v. Communications Sat-
ellite Corp., 759 F.2d 355, 364 (4th Cir. 1985).

In Virginia, the elements of defamation are (1) publication (2) of
a false, defamatory statement (3) with the requisite intent. Chapin v.
Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993). Walker
admits that the statements of the Defendants were not factually false.
He asserts, however, that considering the surrounding facts, the state-
ments were defamatory by implication.

For a defamation-by-implication cause of action to survive, the
defamatory implication must be present in the plain and natural mean-
ing of the words used. In addition, because the Constitution protects
truthful speech, a plaintiff raising an implicit defamation claim has an
especially rigorous burden. The language must not only be reasonably
read to impart the false innuendo, but it must also affirmatively sug-
gest that the author intended or endorsed the inference. Id. at 1092-93.

Walker alleges that the various statements made by the Defendants,
when viewed together with Pate's allegations and Walker's termina-
tion, suggest that he was unfit to perform the duties of his office and
was involved in shady financial dealings. However, we find that the
Defendants' true statements do not create such innuendo. For exam-
ple, Tyler's statement that the Board "had some financial questions"
which might require audit changes did not imply that Walker had
engaged in illegal or unethical behavior. At most, the statement
implied that Walker had chosen poor accounting methods. Such a
statement is not defamatory. Id. at 1092 (defamatory words must
make the plaintiff appear odious, infamous or ridiculous; merely
offensive or unpleasant statements are not actionable).

Next, Tyler and Belsham's statements that they requested Walker's
resignation "in part because of the audit results" does not implicate a

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solely defamatory meaning. The statement does not imply that Walker
engaged in immoral, unethical, or illegal activities. If such were the
case, the resignation would not be due only "in part" to the audit
results. Therefore, the only fair reading of the comment is that the
audit results themselves would not have required Walker's resigna-
tion. Whatever else contributed to Walker's termination is not men-
tioned or discussed.

Finally, Belsham stated that Walker resigned because the Board
had "lost confidence" in him. Again, this comment does not imply
any financial improprieties, immoral actions, or unethical behavior.
While the statement might be unpleasant, it is not defamatory.

In addition, the placement of these comments near Pate's accusa-
tions of unusual accounting procedures did not convert the statements
into defamatory comments. Pate is not a defendant in this action, and
Walker does not allege that the Defendants endorsed Pate's allega-
tions, intended such an inference to be drawn, or were even aware that
Pate's allegations had been uncovered by the reporter. Accordingly,
this claim was properly dismissed.

Walker also alleged that the Board denied him due process of law
by injuring his reputation without allowing him a name-clearing hear-
ing. In order to state a claim that the Board's stigmatizing remarks
deprived him of a liberty interest under 42 U.S.C.§ 1983 (1994),
Walker must show that the Board made public, injurious, and false
charges against him in the course of a discharge or demotion. Stone
v. University of Maryland Medical Sys. Corp., 855 F.2d 167, 172-73
n.5 (4th Cir. 1988). As discussed above, Walker has not alleged that
the Defendants' statements were false, and therefore, he has not
shown that he was denied a protected liberty interest. As such, he was
not entitled to due process protections in connection with his dis-
charge.

The judgment of the district court is therefore affirmed. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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