Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—E.D. Va.: Sheriff prevails against fired deputy and January 6 participant who refused masking, (May 6, 2025)

By Jason Albright, J.D.

The deputy was fired after he refused to comply with the department’s masking requirements during the COVID-19 pandemic.

The Hanover County Sheriff in Virginia is entitled to summary judgment against the First Amendment retaliation and Fourteenth Amendment claims of a former deputy who was fired after he refused to comply with the department’s masking requirements during the COVID-19 pandemic. The record established that the sheriff afforded the deputy—a January 6 Capitol riot participant—the opportunity of continued employment notwithstanding his allegedly protected speech concerning masking if he complied with the policies and procedures of the department going forward, that he refused, and that because of this refusal, he was terminated (Keeley v. Hines, No. 3:24-cv-158 (E.D. Va. Apr. 29, 2025)).

Sheriff’s deputy. The plaintiff began working as a deputy sheriff in January 2010. He primarily worked as a “typical police officer,” who conducts traffic stops and responds to calls for services, but he also worked as a “field training officer,” who supervises the training of newly on-boarded deputy officers.

Executive orders. Under his oath for the office, the deputy was subject to the executive orders that the sheriff issued in his role as Sheriff of Hanover. And in response to the COVID-19 pandemic, the sheriff issued a series of executive orders, including one that required the department’s employees to wear approved face coverings when working in a health or long-term care facility, a building in which it is posted that face coverings are required, or a county public school building, among other locations. A second executive order required all on-duty sheriff’s office personnel to wear masks in the enumerated circumstances.

Firing range conversation and January 6 revelation. In 2021, the deputy and the sheriff had a conversation at a firing range operated by the sheriff’s office. The deputy informed the sheriff that he had attended the January 6, 2021 protest in Washington, D.C. According to the deputy, he also specifically informed the sheriff that he disagreed with wearing a mask and did not believe that he should comply with any mask-wearing requirement.

Refusals to wear mask. Subsequently, the deputy refused to wear a mask when he answered a call for service at the Hanover Emergency Center. Later, he again refused to wear a mask when he was relieving fellow officers working at the Memorial Regional Medical Center. Despite a commanding sergeant’s indication that “he didn't have a choice” regarding the requirement that he wear a mask there, the deputy did not wear a mask upon entering the facility or at any time while present there, including in the emergency room.

Investigation. An investigation of the sergeant ensued, and the investigating lieutenant reported that the deputy had violated the sheriff’s policies and procedures regarding insubordination, training, and the COVID-related executive orders. The deputy did not contest these findings, and another department official recommended a three-day suspension without pay and written reprimand, contingent upon the deputy’s agreement to follow the sheriff’s masking policies in the future. The official recommended that the deputy be fired if he continued to refuse to wear a mask when required by the executive orders.

Termination. After the completion of the investigation, the deputy met with the sheriff, whom he informed that he “had personal convictions about wearing a mask and that he was not going to change his beliefs.” The sheriff asked if he would wear a mask “in a medical facility or a business that required the wearing of a mask for entry,” and the deputy required that he would not.

The sheriff fired the deputy the same day and later memorialized that the deputy was being terminated based on the internal investigation and the deputy’s “acknowledgment [that he] do[es] not intend to abide by our policies and procedures,” a statement that the deputy signed and acknowledged having received and reviewed.

Later employment with another county. On March 7, 2022, the deputy applied for a position as deputy sheriff with the Caroline County Sheriff's Office, and despite disclosure of the circumstances of his termination from the Hanover County position, he was offered employment and began working for Caroline County in April 2022.

Lawsuit and present motion. The deputy sued, alleging that the sheriff (1) engaged in retaliation based on his participation in activities protected by the First Amendment; (2) violated of the Fourteenth Amendment's Equal Protection Clause; (3) deprived the deputy of a property interest without due process of law in violation of the Fourteenth Amendment; and (4) deprived the deputy of a liberty interest in violation of the Fourteenth Amendment.

Following dismissal of the second and third counts and discovery, the sheriff moved for summary judgment against the first and fourth counts.

First Amendment retaliation. The fired deputy’s First Amendment retaliation claim failed because the evidence in the record showed that, even when taken in the light most favorable to him, there was no but-for causation between his protected speech—his alleged “outspokenness” about masks—and the sheriff’s decision to terminate him. The record instead established that the sheriff afforded the deputy the opportunity of continued employment notwithstanding his allegedly protected speech if he complied with the policies and procedures of the department going forward. But the deputy refused, and because of his refusal, he was fired.

Due process and liberty interest. The former deputy’s Fourteenth Amendment due process claim—based on an alleged deprivation of a liberty interest “with respect to his good name, reputation, honor and integrity”—likewise failed. Here, the deputy alleged that a March 2022 letter the sheriff sent the deputy’ s personal fitness coach—in response to a prior letter from the coach concerning the deputy’s discharge—constituted a stigmatizing “public announcement of reasons for an employee’s discharge.” The court was unpersuaded, finding that the sheriff’s letter—which was not circulated beyond the fitness coach, a lieutenant in the department, and the sheriff’s attorney—did not constitute a sufficient public disclosure to cause such an alleged reputational harm.

The case is No. 3:24-cv-158.

Judge: Payne, R.

Attorneys: Richard F. Hawkins (The Hawkins Law Firm PLLC) for Matthew Keeley. William Daniel Prince (ThompsonMcMullan P.C.) for Sheriff David R. Hines.

Cases: IndividualRights Discharge Covid19 PublicEmployees VirginiaNews