Abstract
As public employers well know, the Fifth and Fourteenth Amendments to the United States Constitution guarantee due process to protect property interests associated with workers' legitimate expectations of continued employment. Equally well-established, although probably less often the subject of litigation, are the due process rights of public employees whose liberty interests, i.e., their right to be free of unwarranted professional stigma, are jeopardized by employer conduct. This paper analyzes several recent cases in which public employees charged liberty interest violations as a result of their employers' placing adverse information in their personnel files. Public sector employers should evaluate their exposure to liability for such claims and develop strategies to alleviate their risk as well as to carry out their responsibility to preserve the due process rights of employees.
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References
1.
U.S. CONST, amends. V and XIV.
2.
408 U.S. 564.
3.Green v. U.S. Court of Appeals for the Eleventh Circuit , 895 F. 2d 1387 (11th Cir. 1990); United States ex rel. Karr v. Castle , 746 F. Suppl 1231 (D. Del. 1990); Campbell V. Pierce County , 741 F. 2d 1342 (11th Cir. 1984), cert. denied , 470 U.S. 1052 (1985). See, also, Moore v. Mississippi Valley State University , 871 F.2d 545, 549 (5th Cir. 1989).
4.
871 F.2d at 549, citing Huffstutler v. Bergland , 607 F. 2d 1090, 1092 (5th Cir. 1979).
5.
Ibid., citing Roth , infra note 1, at 573–574.
6.Siegert v. Gilley , —- U.S. —-, 111 S. Ct. 1789, 59 U.S.L. W. 4465, 6 BNA Ind. Emp. Rts. Cases 705 (1991). The plaintiff, a government psychologist, resigned his position with a federal hospital to avoid imminent termination. Subsequently, he was turned down for a position he sought at an Army hospital largely because of a highly critical reference from his former supervisor. He alleged the reference was defamatory and a violation of his liberty interest because it rendered him unable to obtain other appropriate employment in the field. The Court ruled that the plaintiff failed to show a violation of any constitutional right because the employee had voluntarily resigned, and the reference was written several weeks later. The alleged defamation, therefore, was not incident to the termination of his employment. See, also, Paul v. Davis , 425 U.S. 693 (1976).
7.Anderson v. City of Philadelphia , 845 F.2d 1216 (3d Cir. 1988); see, also, Cleveland Board of Education v. Loudermaill , 470 U.S. 532, 547, note 13 (1985).
8.
871 F.2d 1037 (11th Cir. 1989).
9.
629 F.2d 1018 (11th Cir. 1980).
10.Pinckney v. District of Columbia , 439 F. Supp. 519 (1977). The plaintiff sought reinstatement after the indictment was dismissed, but Federal City College denied his request because he had refused to participate in a hearing before the criminal charges against him had been dropped.
11.
735 F. Supp. 1052 (M.D. Ga. 1990).
12.Myers v. Dept. of Ins. , 561 So. 2d 1289 (Fla. 1st DCA 1990).
13.Brandt v. Bd of Cooperative Services , 845 F. 2d 416, 3 BNA Ind. Emp. Rts. Cases 442 (2d Cir. 1988), where a public school teacher unsuccessfully argued the school board had deprived him of due process by failing to grant a name-clearing hearing regarding allegedly false and defamatory charges in his personnel file.
14.
725 F.2d 655 (11th Cir. 1984).
15.
725 F.2d at 659.
16.
793 F.2d 1247 (11th Cr. 1986).
17.
See Siegert V. Gilley infra note 6, in which the Supreme Court emphasized that injury to reputation by itself is not a liberty interest protected by the Constitution. Defamation in itself, therefore, is actionable as a tort claim under laws in most states, but a constitutional cause of action. 6 Ind. Emp. Rts. Cases at 707.
18.
Defamation may be oral (slander) or written (libel) and involved the wrongful harming of another's reputation. Actionable libel or slander require the plaintiff to prove a malicious, unprivileged publication of a false, damaging statement to some person other than the defamed party. See 50 Am.Jur.2d Libel and Slander sec. 1 (1970); see, also, Prosser, Handbook of the Law of Torts sec. 113 (4th ed. 1971). For an informative overview of defamation in the workplace and personnel records issues, see Sovereign, Personnel Law 156–160, 162–167 (2d ed. 1989).
19.
See, generally, Shearer, “The Self-Publication Doctrine: Expanding Employer Defamation Liability,” 16 Emp. Rel. L.J. 57 (Summer 1990).
20.
See Weintraub v. Phillips , Nizer, Benjamin, Krim, and Balloon trial court decision noted in New York Law Journal , 6 February 1990, p. 22 (listing California, Colorado, Georgia, Michigan, Minnesota, Missouri, and Texas as states recognizing self-publication), aff'd. 568 N.Y.S.2d 84 (App. Div. 1991).
21.Weldy v. Piedmont Airlines , 4 BNA Ind. Emp. Rts. Cases 1846 (W.D.N.Y. 1989), adding Iowa, Kansas, Ohio, Oregon, North Carolina, and Washington to the roster of states adopting the self-publication theory.
22.Gore v. Health-Tex , Inc., 567 So. 2d 1307 (Ala. 1990).
23.Yetter v. Ward Trucking Corp. , 585 A.2d 1022, 6 BNA Ind. Emp. Rts. Cases 146 (Pa. Super. Ct. 1991).
24.DeLeon v. St. Joseph Hospital Inc. , 871 F.2d 1229 (4th Cir. 1989), cert. denied , 110 S. Ct. 87, 107 L.Ed.2d 52 (1989).
25.
389 N.W.2d 876 (Minn. 1986).
26.
110 Cal. App. 3d 787, 168 Cal. Rptr. 89 (1980).
27.
845 F.2d 1216 (3rd Cir. 1988).
28.
Linn & King, “Liberty Interest Protection for Discharged Public Employees,” 64 Fla. B.J. 76 (October 1990).
29.
Ibid., p. 77. .
30.
871 F2.d at 1045 note 14.