Labor & Employment Law Daily Wrap Up, PROCEDURE—11th Cir.: Sheriff’s deputy, fired after having on-duty extramarital affair, cannot revive claims, (Aug 20, 2026)

By Todd Harrison, J.D.

His failure to make use of state procedures that were adequate to protect his procedural due process rights meant he had not suffered a constitutional violation.

Affirming a district court’s grant of summary judgment against the procedural due process and defamation claims asserted by a former Gwinnett County Sheriff’s Deputy, the Eleventh Circuit found that a plaintiff whose procedural due process claim is based on the deprivation of a liberty interest bears the same burden of seeking state remedies as one claiming deprivation of a property interest. Regarding the deputy’s claim of defamation, the court found it was based on pure speculation. The deputy had also asserted an equal protection claim based on the fact that his former lover, the wife of a government official, did not face prosecution. Summary judgment was vacated as to this claim, and it was remanded with instructions to dismiss for lack of standing (Peden v. Stephens, No. 24-10178 (11th Cir. Aug. 19, 2026)).

Investigation. At some point during his tenure as sheriff’s deputy, the plaintiff had an affair with the wife of the Gwinnett County Administrator. When the affair ended, the sheriff’s office received a pseudonymous letter accusing the deputy of having extramarital affairs while on duty.

After receiving the letter, the sheriff’s office launched an investigation. As that investigation was winding down, the Gwinnett County Administrator informed the sheriff that his wife had had an affair with the deputy and that she was the one who had written the pseudonymous letter.

Ultimately, the investigation concluded that the deputy had violated the rules of the office by engaging in neglect of duty, personal use of county supplies, and conduct unbecoming an officer. The deputy was terminated on March 28, 2018. He filed an appeal that day, and a meeting was scheduled with the executive secretary of the Gwinnett County Merit Board for May 16.

News report. In the meantime, the sheriff’s office kept its report of the investigation in the deputy’s personnel file. A television reporter requested the file under the Georgia Open Records Act, and the file was provided to him. The reporter ran a news story about the deputy’s alleged misconduct on April 10.

Settlement. On May 16, prior to the scheduled County Merit Board meeting, the deputy and the sheriff’s office reached a settlement, allowing the deputy to resign in exchange for dropping his appeal. During his deposition in this lawsuit, the deputy stated, “I got what I was aiming for” with regard to the settlement. By dropping his appeal, the deputy gave up the opportunity for an evidentiary hearing before the full Merit Board and a chance to appeal his “non-termination” termination to the Gwinnett County Superior Court.

According to the deputy, he did not learn until after the settlement, and after he had dropped his administrative appeal, that the sheriff and his investigators had known pretty much from the beginning that he had been having an extramarital affair with the country administrator’s wife. However, they failed to name her in the pretermination notice, the termination notice, or at any time during the process. This omission, argued the deputy, deprived him of a fair opportunity to contest his termination. Though he did not deny that the affair took place, he did deny that anything happened either while he was on duty or that was facilitated by the use of a sheriff’s vehicle.

Lawsuit. Upon learning of this information, the deputy filed this lawsuit, alleging that the county administrator, the sheriff, and the chief deputy violated his Fourteenth Amendment procedural due process rights by (a) conspiring to terminate him without telling him the true reason for his termination (his affair with administrator’s wife); and (b) arranging for the investigation report to be published in the news without providing him the opportunity to defend his reputation. In addition, he alleged that the three officials defamed him by conspiring to leak the investigation report to the journalist.

His third claim was asserted by himself and his wife, alleging that the county administrator violated their right to “equal protection of the laws” under the Fourteenth Amendment by improperly influencing the district attorney’s decision not to prosecute the county administrator’s wife.

The district court granted summary judgment against all three claims, and this appeal followed.

Side-issue is non-issue. First addressing the deputy’s procedural due process claim, the court acknowledged that there was at least a genuine issue of material fact that the deputy’s affair was the real reason he was fired. The basis for this claim was his assertion that Gwinnett County officials never informed him of that with sufficient specificity because they did not want to tell him the woman he was accused of having sex with was the county administrator’s wife. Thus, according to the deputy, he was deprived of his property interest in his job without receiving the process he was due. That is, in the words of Loudermill, “oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.”

In addition, the deputy argued that he was deprived of his liberty interest based on “reputation damage” because he never received “a meaningful opportunity for an employee name clearing hearing.” Without actual knowledge of the real and specific reason for his termination, contended the deputy, any process he received was a “lie” and a “sham.” The court was not persuaded.

Although it was undeniable, and indeed undenied, that the deputy knew he was having sex with the county administrator’s wife, he apparently believed that if he had known the defendants also knew of the affair, it might, in some unspecified way, have helped him show that their stated reason for firing him was pretextual, observed the court. However, the court said it need not spend much time on this argument, finding that, “This side-issue is a non-issue because it does not matter in this case.”

It did not matter, the court found, because there was a big, threshold defect in the deputy’s procedural due process theory and everything it entailed. That defect was that a “terminated employee” may not successfully assert a procedural due process claim “in federal court... before the employee utilizes appropriate, available state remedial procedures.” McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir. 1994) (en banc).

McKinney. According to the court, McKinney and subsequent decisions demonstrate why rushing to file suit in federal court before making use of available Georgia law remedies struck a fatal blow to the deputy’s claims.

In McKinney, a Florida county building official was terminated after a three-day hearing. He brought a due process claim in federal district court alleging the decisionmakers had been “biased” against him. The Eleventh Circuit found the claim had to be dismissed because the plaintiff had “failed to avail himself of the full procedures provided by state law.”

Providing further explanation, the court stated that “Florida courts... have the power to review employment termination cases,” and “[i]nherent in that power to review is the power to remedy deficiencies and to cure violations of due process.” The plaintiff did not suffer a violation of his right to procedural due process because he “could have availed himself of state court procedures that... could have provided him with adequate relief,” but he “chose not to utilize those procedures.”

State procedures available. Here, by failing to pursue state procedures and remedies before the County Merit Board and in state court, the deputy had put himself in the same position as the plaintiff in McKinney. The deputy had testified that he understood “there was another process,” an appeal to the full Merit Board and, if he chose to keep going, an appeal to the Superior Court of Georgia. However, he did not take advantage of administrative procedures and did not take advantage of the opportunity for state court review. Thus, he could not now claim that the state deprived him of procedural due process, said the court. Instead, he chose to accept a settlement agreement because he “got what [he] wanted.”

To the extent the deputy was deprived of a liberty interest in his reputation, he could have pursued state procedures and could have sought state remedies, including a writ of mandamus to demand a name-clearing hearing, but he failed to do so, observed the court.

Having failed to make use of state procedures that were adequate to protect his procedural due process rights, the deputy did not suffer a constitutional violation, said the court. Accordingly, the grant of summary judgment against this claim was affirmed.

Defamation. Turning to the deputy’s claim for defamation, he alleged that the three officials had conspired to provide a tip to the reporter, contending that they knew the pseudonymous letter was false on its face, or that they at least made no attempt to investigate whether the claims made in the letter were true, and arranged for the publication of its allegations anyway. The court was unmoved.

There was no evidence in the record that anyone provided the reporter with a “tip,” observed the court. The deputy did not claim to know which one, if any, of the officials contacted the reporter. The deputy even acknowledged the speculative nature of this claim, stating that “it was at least negligent if one or more of them contacted [the reporter] to tell him about the letter.”

This cause of action, explained the court, depends on the “if,” and “those two little letters cannot support the weight of speculation that [the deputy] puts on them.” Because this claim was purely speculative, the district court’s grant of summary judgment against it was also affirmed.

Equal protection. Finally, the court considered the claim by the deputy and his wife that the county administrator violated their “constitutional right to access the judicial system by influencing the district attorney’s decision not to prosecute [the administrator’s] wife…for stalking or harassment.” They pointed to factual allegations in their complaint, asserting that the county administrator participated in a “conspiracy” with the district attorney, persuading him not to prosecute the administrator’s wife while failing to provide the deputy and his wife the protections of law enforcement and the justice system. The district court rejected this claim on the merits.

On appeal, the official contended that the deputy and his wife lacked standing to assert their equal protection claim. The court agreed, noting that private citizens lack a judicially cognizable interest in the prosecution or nonprosecution of another. Thus, the court vacated the grant of summary judgment, remanding to the district court with instructions to dismiss this claim without prejudice for lack of standing.

The case is No. 24-10178.

Judge: Carnes, E.

Attorneys: Deborah V. Haughton (Southern Health Lawyers) for Chase Peden and Marjorie Peden. Angela C. Couch (Carothers & Mitchell) for Glenn Stephens, Butch Conway and Lou Solis.

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