Howard M. Rosenstein v. The City of Dallas, Texas

876 F.2d 392, 1989 U.S. App. LEXIS 9232, 1989 WL 61825

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 28, 1989
• Docket: 87-1888
• Status: Published

Opinions

REAVLEY, Circuit Judge:

This appeal challenges a judgment against the City of Dallas for violation of the plaintiff’s due process rights under federal civil rights law and against Donald Milliken and the city for slander under state law. We vacate the judgment, upholding the recovery on the civil rights claim, and remand for modification of damages.

In March 1984, Amy Bradley, a Dallas police officer, received several harassing and obscene telephone calls. Bradley named the plaintiff, Howard M. Rosen-stein, a fellow police officer, as the person who made the calls. An Internal Affairs Department investigation concluded that Rosenstein had made the calls, and Rosen-stein was terminated from his position as a Dallas police officer. Rosenstein had been employed by the City of Dallas for less than one year and was a probationary employee at the time of his termination. Shortly thereafter, police Captain Milliken made public the charges against Rosen-stein in statements to the press concerning the discharge. Rosenstein sought to challenge the decision of the police department but was denied further consideration or hearing on the ground that no appeals procedure was available to one in his status as a probationary employee.

Rosenstein denied that he made the telephone calls and brought this action in the Northern District of Texas seeking damages for violation of his constitutional rights pursuant to 42 U.S.C. § 1983 and for violations of state law. Rosenstein’s § 1983 claim was based principally upon the city’s denial of a name-clearing hearing to him. His state law claims for slander were based on the statements of Captain Milliken. After trial of the plaintiff’s consolidated claims against the City of Dallas and Captain Milliken, the court entered judgment on the jury verdict in favor of Rosenstein.

The Denial of a “Name-Clearing” Hearing

It is now beyond any doubt that discharge from public employment under circumstances that put the employee’s reputation, honor or integrity at stake gives rise to a liberty interest under the Fourteenth Amendment to a procedural opportunity to clear one’s name. See Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976); Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971); Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 218, 97 L.Ed. 216 (1952). We have held that public officials do not act improperly in publicly disclosing charges against discharged employees, but they must thereafter afford procedural due process to the person charged. In re Selcraig, 705 F.2d 789, 798 (5th Cir.1983). Moreover, the process due such an individual is merely a hearing providing a public forum or opportunity to clear one’s name, not actual review of the decision to discharge the employee. Roth, 408 U.S. at 573 n. 12, 92 S.Ct. at 2707 n. 12. If a government employer discharges an individual under circumstances that will do special harm to the individual’s reputation and fails to give that individual an opportunity to clear his name, however, the individual may recover monetary damages under § 1983 for the deprivation of his liberty under the Fourteenth Amendment. Owen v. City of Independence, 445 U.S. 622, 633 n. 13, 100 S.Ct. 1398, 1406 n. 13, 63 L.Ed.2d 673 (1980). To succeed on this § 1983 claim for the denial of a name-clearing hearing, the employee must prove the following: that he was discharged,¹ that defamatory charges² were made against him in connection with the discharge,³ that the charges were false,⁴ that no meaningful public hearing was conducted pre-dis-charge,⁵ that the charges were made public,⁶ that he requested a hearing in which to clear his name,⁷ and that the request was denied.⁸

The city argues that the plaintiff did not request a hearing. It is undisputed, however, that Rosenstein requested access to the police department’s established appeal procedure to contest the charges. On May 10, 1985, Rosenstein wrote to the Dallas City Manager that “I was fired from the Dallas Police Department for something that I did not do,” and he “requested] an appeal from this decision.” In this case where the only issue was Rosenstein’s guilt or innocence of the particular charge that stigmatized him, his request to participate in established grievance, appeals, or other review procedures to contest defamatory charges was sufficient to state a request for a name-clearing hearing. A discharged employee need not use the term “name-clearing hearing.” Cf Owen, 445 U.S. at 626-29, 100 S.Ct. at 1403-04 (noting that fired police chief demanded only an appeal and was refused on the grounds that the city charter provided for no appellate procedure).

The governmental employer need not grant the discharged employee access to its established appeals procedures, but may provide an alternative procedure, or even an ad hoc hearing, solely for the purpose of allowing the employee to clear his name. An employer electing to implement a special procedure, however, must notify the discharged employee that it will give him access to the special name-clearing procedure if he chooses to take advantage of it; the state must “make known to the stigmatized employee that he may have an opportunity to clear his name upon request.” In re Selcraig, 705 F.2d 789, 796 (5th Cir.1983). An employer’s denial of an employee’s request to appeal the employer’s discharge decision, which rested on guilt of the stigmatizing charge, is a denial of a name-clearing hearing unless the employer specifically notifies the employee of the availability of an alternative procedure, which will provide the employee with a public forum to clear his name before the governing body that discharged him.

Not only did the City of Dallas fail to notify Rosenstein that he might take advantage of some alternative or ad hoc hearing procedure, city officers made it perfectly clear that he would not be allowed any procedural avenue whatsoever to clear his name. In the letter formally discharging Officer Rosenstein and informing him of the charges, Police Chief Billy Prince stated: “Because you are a probationary employee of the Dallas Police Department, my decision in this matter is final.” The City’s response to Rosenstein’s letter to the City Manager requesting an appeal concluded the matter by stating: “[I]n accordance with the Police Code of Conduct the decision of the Chief of Police is final. You were a probationary employee and therefore ineligible for further appeal rights.” We need not reach the question of whether the jury instructions adequately stated all the elements of a claim for the denial of a name-clearing hearing because as a matter of law the record establishes Rosenstein’s claim.

Municipal Liability

The City of Dallas complains of the district court’s refusal to instruct the jury to the effect that the city’s liability for the civil rights violation depended upon Rosenstein proving that the city council had delegated policy-making authority to the officer who denied him a name-clearing hearing. That instruction was unnecessary in the state of this record. The Chief of Police testified that he set all of the policies for the police department, and the city attorney neither questioned the Chief upon that statement nor raised an issue to the contrary. The city is liable for the action of the official responsible for establishing policy with respect to the matter. Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 1300-01, 89 L.Ed.2d 452 (1986). The hearing was denied although both the Chief of Police and the City Manager were aware of Rosenstein’s desire for a hearing. There was no need to prove a city policy, although it was significant in this respect that the Assistant City Manager who had supervisory responsibility for the police department testified that he did not know what was meant by “name-clearing hearing.”

The Slander Cause of Action

Rosenstein also sued under state slander law for damages caused by the publication of the defamatory charges. Under Texas law municipalities are granted broad immunity from liability when performing governmental functions. Gates v. City of Dallas, 704 S.W.2d 737, 738-39 (Tex.1986). A Texas court of appeals has recently held that defamation of a police officer by city officials in the course of discharging that police officer is protected under the city’s governmental immunity and, as an exercise of a governmental function, is not actionable against either the city or the officials under state slander law. City of Dallas v. Moreau, 718 S.W.2d 776, 779-80 (Tex.App.—Corpus Christi 1986, writ ref’d n.r.e.). This decision controls Rosenstein’s state law claims, which must be dismissed.

Damages

The district court awarded damages to the plaintiff for lost earnings, mental anguish and suffering, harm to the plaintiff’s reputation and career, and punitive damages against Captain Milliken. The Supreme Court has held that when only a liberty interest is infringed, the plaintiff is entitled to only nominal damages or to any actual damages, such as emotional distress, that can be proved to result from the infringement of the liberty interest. Carey v. Piphus, 435 U.S. 247, 260-63, 98 S.Ct. 1042, 1050-52, 55 L.Ed.2d 252 (1978). Rosenstein did not have a property interest in his job and may not recover damages for the loss of that job. The district court, therefore, should have disregarded as immaterial the jury’s finding of $4087.10 in damages for lost earnings.

An employee may not recover directly under § 1983 for slanderous statements made by his employer, but he is entitled under federal law to a hearing to clear his name if the statements were made in connection with termination of his employment. We can find no appellate court opinion that directly addresses the question of whether damages to reputation are recoverable when a name-clearing hearing is denied.⁹ At least two cases in this court have apparently assumed, without deciding, that damages for harm to reputation are recoverable in this type of action. See In re Selcraig, 705 F.2d at 798; White v. Thomas, 660 F.2d at 682. We hold that in a § 1988 action for denial of a name-clearing hearing, the plaintiffs damages for loss of the opportunity to clear his name of the false and defamatory charges include any harm to his reputation and career caused by the charges made against him that he is able to prove.¹⁰ The award of punitive damages, however, falls with the dismissal of the state law slander claim.¹¹

Other Matters

Appellants urge that the § 1983 claim and the state law slander claim are separate and independent claims and that the district court erred by awarding attorneys’ fees for time spent on the now unsuccessful slander claim. See Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983). Both claims share a common core of facts, and the damages theories for both claims are identical. We are not prepared to state that the district court’s award of attorneys’ fees was an abuse of discretion. See Graves v. Barnes, 700 F.2d 220, 221 (5th Cir.1983). Because the district court denied the defendants’ motion for judgment n.o.v. and thus did not consider that the plaintiff had urged an unsuccessful claim, we cannot know whether the district court considered the appellants’ arguments in awarding attorneys’ fees. We therefore direct the district court on remand to reconsider its award of attorneys’ fees in light of our holding that a judgment- n.o.v. should have been entered on the slander claim.

The appellants also argue that the district court erred in denying their motion for new trial on the grounds that the court erroneously admitted irrelevant evidence concerning Officer Rosenstein’s commendations, that the district court submitted an improper instruction to the jury regarding custom and policy, that the district court refused to submit a separate issue on whether Rosenstein requested a name-clearing hearing, and that the district court’s errors confused the jury and prejudiced the defendants. Evidence of Officer Rosenstein’s previous commendations was relevant as background and as evidence of his professional reputation, which was harmed by the stigma of the false charges. The appellants’ other grounds are answered above.

The judgment is VACATED and the case is REMANDED to the district court for modification of damages against the City of Dallas consistent with this opinion and for the award of attorneys’ fees.

1 . Reputation alone is not a constitutionally protected interest. Paul v. Davis, 424 U.S. at 701, 96 S.Ct. at 1160-61; White v. Thomas, 660 F.2d 680, 684 (5th Cir.1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1731, 72 L.Ed.2d 148 (1982). Reputation must be impugned in connection with the termination of employment. Paul v. Davis, 424 U.S. at 710, 96 S.Ct. at 1165.

2 . See Codd v. Velger, 429 U.S. 624, 628, 97 S.Ct. 882, 884, 51 L.Ed.2d 92 (1977). The Supreme Court has made clear that a liberty interest arises in this context if the charges put one's reputation at stake, impugn one’s good name, honor, or integrity or impose a stigma that will foreclose freedom to take advantage of other employment opportunities. See Roth, 408 U.S. at 573, 92 S.Ct. at 2707. Settling on a term that adequately characterizes the type of charges which give rise to a liberty interest under Roth has been a source of much difficulty for this court; our choice of the term "defamatory” is deliberate. In the past we have usually employed the term "stigmatizing." See Campos v. Guillot, 743 F.2d 1123, 1126 (5th Cir.1984). Stigma, however, has not proven to be a concept capable of much precision. At times we have attempted to supplement "stigmatizing” with the notion of "a badge of infamy.” See Evans v. City of Dallas, 861 F.2d 846, 851 (5th Cir.1988); Ball v. Board of Trustees of Kerrville Independent School Dist., 584 F.2d 684, 685 (5th Cir.1978), cert. denied, 440 U.S. 972, 99 S.Ct. 1535, 59 L.Ed.2d 788 (1979). At other times we have suggested that "stigmatizing” requires the plaintiff to prove that “her employment or employment opportunities were damaged in addition to her reputation,” Myrick v. City of Dallas, 810 F.2d 1382, 1385 (5th Cir.1987), or that "the claimant must show that damage to his reputation and employment opportunities has in fact occurred.” Evans, 861 F.2d at 851. Our efforts to define “stigmatizing” have only led us further from the meaning of Roth.

The dissent accuses us of attempting "to obliterate the term 'stigmatize' from the printed books.” We have not been so bold. We do believe that the term "stigmatize” has proven unnecessarily confusing, but by characterizing the type of charge that triggers a liberty interest as "defamatory," we in no way change the law. The meaning of "defamatory” is well settled and familiar; it better addresses the range of meanings intended by the Supreme Court; and it provides better direction for trial courts. Furthermore, our use of the term "defamatory” in this manner is hardly unprecedented. See Owen v. City of Independence, 445 U.S. at 633 n. 13, 100 S.Ct. at 1406 n. 13; Paul v. Davis, 424 , 96 S.Ct. at 1164; Lyons v. Barrett, 851 F.2d 406, 410 (D.C.Cir.1988); Fleisher v. City of Signal Hill, 829 F.2d 1491, 1495 (9th Cir.1987), cert. denied, — U.S.-, 108 S.Ct. 1225, 99 L.Ed.2d 425 (1988); White v. Thomas, 660 F.2d at 684; Dennis v. S & S Consolidated Rural High School District, 577 F.2d 338, 341 (5th Cir.1978). The Seventh Circuit has held that if a claim does not succeed in alleging "actionable defamation," “a fortiori it does not allege a violation of the Constitution.” Clark v. Maurer, 824 F.2d 565, 566 (7th Cir.1987).

3 .The charges must be connected with the discharge but need not actually cause the discharge. Owen, 445 U.S. at 633 n. 13, 100 S.Ct. at 1406 n. 13; Wells v. Hico Independent School Dist., 736 F.2d 243, 256 n. 17 (5th Cir.1984), cert. denied, 473 U.S. 901, 106 S.Ct. 11, 87 L.Ed.2d 672 (1985). We emphasize, however, that the charges must be more than merely adverse; the charges must be the type that might seriously damage the employee’s standing and associations in the community, that blacken his good name or impair his employment opportunities. See Wells, 736 F.2d at 256 n. 16. Moreover, mere discharge, without specific defamatory charges, will not implicate a liberty interest even though it might make the employee less attractive to other employers. Roth, 408 U.S. at 574 n. 13, 92 S.Ct. at 2707 n. 13; Wells, 736 F.2d at 256.

4 . Codd, 429 U.S. at 628, 97 S.Ct. at 884.

5 . Campos, 743 F.2d at 1126.

6 . Bishop v. Wood, 426 U.S. at 348-50, 96 S.Ct. at 2079-80; Campos, 743 F.2d at 1126. An employee may prove that the government agency is likely to make the charges public or that information about the charges is available to the public, although not publicized by the government. See Wells, 736 F.2d at 256. There will be no liability, however, if the agency has carefully kept the charges confidential and the plaintiff caused them to be made public. Campos, 743 F.2d at 1126.

⁷

8 . A name-clearing hearing is not a prerequisite to publication, and the state is not required to tender one prior to disclosing the charges or discharging the employee. In re Selcraig, 705 F.2d at 796. The state deprives an employee of a liberty interest only when it denies his request for an opportunity to contest the charges and clear his name.

9 .The rule of Paul v. Davis, 424 U.S. at 701, 96 S.Ct. at 1161, that reputation alone is not a constitutionally protected interest is not in point. The question presented in Paul v. Davis was what circumstances give rise to a right to a name-clearing hearing, not what are the damages for the denial of such a hearing. The Supreme Court did not overrule the holding in Roth that charges which blacken one’s name, but do not necessarily cause the loss of employment opportunities, can constitute part of a claim for a name-clearing hearing, rather the Court reaffirmed the holding in Roth that such charges give rise to a liberty interest only when made in the course of termination from public employment:

While Roth recognized that governmental action defaming an individual in the course of declining to rehire him could entitle the person to notice and an opportunity to be heard as to the defamation, its language is quite inconsistent with any notion that a defamation perpetrated by a government official but unconnected to any refusal to rehire would be actionable under the Fourteenth Amendment....

Paul v. Davis, 424 U.S. at 709, 96 S.Ct. at 1164. The Supreme Court specifically held that it was not sufficient to establish a claim under § 1983 "that there simply be defamation by a state official; the defamation had to occur in the course of the termination of employment." Id. at 710, 96 S.Ct. at 1165. The dissent’s misreading of Paul v. Davis as holding that a plaintiff may only recover when the false and defamatory charges actually cause the employee to lose a subsequent job results from confusing the circumstances necessary to trigger a liberty interest with the damages caused by the violation of the liberty interest.

10 . The dissent notes that "in the years since the writing of Roth, the law has been refined to the point that, in a discharge case, the due process clause recognizes only the employee’s liberty right not to have the government bar future employment opportunities....” By "refined,” of course, the dissent means that an important part of the Roth holding has been overturned. There is simply no authority to support that conclusion. In every case in which the Supreme Court has considered the issue the right of a discharged employee to clear his name of charges that blacken his reputation, in addition to charges that foreclose future employment opportunities, has been recognized. The language in the opinions of this court which might be read otherwise is dicta and did not even address the question of damages. The question presented by this case is a simple one; what are the damages when one is denied his Fourteenth Amendment right to clear his name of charges that blacken his reputation? We believe that the answer given here is the only possible one.

11 . Although the jury could have found the damages for harm to reputation under both the slander cause of action and the § 1983 action, our holding that the slander claim is barred by governmental immunity does not affect those damages. Although the jury was instructed that statements charging criminal activity were "slanderous per se," the jury was not instructed to presume damages for harm to reputation. Moreover, the record amply supports Rosen-stein’s claim that his reputation and standing in the community were harmed and that his career suffered.