Date: 06-10-2002

Case Style: Thomas J. Quinn v. John F. Shirey, City Manager, City of Cincinnati; Robert Bedinghaus, John Dowlin; Thomas Neyer, David Krings, Hamilton County

Case Number: 00-4250

Judge: Clay

Court: United States Court of Appeals for the Sixth Circuit

Plaintiff's Attorney: Marc D. Mezibov of Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, Ohio, for Appellant.

Defendant's Attorney: Kerry P. Hastings of Taft, Stettinius & Hollister, Cincinnati, Ohio, Roger E. Friedmann, Hamilton County Prosecutor's Office, Cincinnati, Ohio, for Appellees.

Description: On July 20, 1999, Plaintiff filed a complaint against Defendants alleging that Plaintiff's constitutionally protected liberty interest in his reputation was infringed when he was forced to resign from his position as director of the Metropolitan Sewer District ("MSD") amid publicized comments made by Defendants who charged that Plaintiff had engaged in questionable or possibly illegal activities.(1) Plaintiff sought, inter alia, compensatory and punitive damages and a name-clearing hearing. On September 17, 1999, the County Defendants filed an answer. On December 10, 1999, the City Defendants filed a motion to dismiss Plaintiff's complaint. The County Defendants did not join the City Defendants' motion to dismiss or file a motion to dismiss of their own. Plaintiff filed a memorandum in opposition to the City Defendants' motion to dismiss on February 28, 2000. On September 12, 2000, the district court granted the City Defendants' motion and dismissed Plaintiff's complaint in its entirety as to all Defendants. Plaintiff filed a timely notice of appeal on October 6, 2000.

Facts

Since1968, Hamilton County and the City of Cincinnati have jointly operated the MSD. Under an agreement entered into by those two entities, Cincinnati performs the day-to-day management of the MSD. However, the Board retains ultimate authority and control over the MSD, including managerial responsibility for adopting rules and regulations and legislation for the MSD. Although Plaintiff was "designated" a city employee, he alleges that he also had "reporting responsibilities" to the Board.

Plaintiff alleges that beginning in the spring of 1997 and continuing through April 1998, city and county officials publicly issued disparaging statements regarding Plaintiff and his mismanagement of the MSD. He contends that the comments "implied, suggested or conveyed the impression that [he] was an unprincipled, unscrupulous, self-serving and hence a corrupt public administrator who had bent or ignored rules and misused his public office to the professional, political and financial advantage of himself and his friends." (J.A. at 5, 11.) The alleged comments include: (1) a Cincinnati internal auditor stating that an agreement negotiated by Plaintiff between the MSD and an independent contractor, while not illegal, served no valid purpose and should be discontinued; (2) a city council person questioning the propriety of Plaintiff serving on a board which supervised work Plaintiff's wife performed for the city; (3) the same council person calling for "the appointment of a special prosecutor to investigate what media reports characterized as 'allegations of wrongdoing' and 'alleged improprieties;'" (4) Defendant Bedinghaus commenting that he was not confident the Board had received the "complete story" regarding the issue of whether the waiver of sewer tap-in fees had been proper and calling Plaintiff's response to inquiries "troublesome;" (5) statements by the Board and city officials that they were going to order an audit of the MSD or that such an audit was appropriate for the period of Plaintiff's tenure; (6) the Board's announcement that it had hired a former FBI agent and white collar crime specialist to investigate allegations of illegal conduct by Plaintiff and the MSD; (7) Defendant Bedinghaus commenting that Plaintiff "had trampled over the intentions of the Board," and that "the embarrassments" created by Plaintiff were of a "career ending" nature; (8) statements by the media that a grand jury had been investigating "charges of wrongdoing" by the MSD and Plaintiff and that the "probe" had "deepened from charges of bad management to potential criminality;" and (9) other statements by city officials calling for Plaintiff's termination and/or suggesting that he should be terminated. (J.A. at 9-11, 12.)

Plaintiff alleges that on April 28, 1998, he communicated with Defendant Shirey that he was innocent of all allegations and "requested that the City defer any action on the resolution to fire [him] pending conclusion of these audit and grand jury investigations." Despite his request, Shirey allegedly told Plaintiff that he would fire him unless Plaintiff submitted his resignation the following morning. Plaintiff alleges that he submitted his resignation because of Shirey's ultimatum and the criminal and civil investigations launched by Defendants. Plaintiff alleges that for the good of the city and the county, he felt constrained to tender his resignation, which he did on April 29, 1998.

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Plaintiff contends that the district court erred in dismissing his complaint for several reasons. He argues that neither the Supreme Court nor other circuits follow this circuit's rule of requiring a plaintiff to request a name-clearing hearing as a prerequisite to bringing a suit alleging deprivation of a liberty interest under the due process clause. He argues that such a rule shifts the burden of implementing constitutional safeguards from the public employer to the employee. He contends that it is unfair to force a plaintiff to request a name-clearing hearing as a prerequisite to bringing a due process liberty interest suit, when the plaintiff may not have known he had a right to request such a hearing in the first place and the employer did not perform its "affirmative duty" of apprizing the plaintiff of the right to a hearing.

The City Defendants counter that this circuit's precedent is clear in that a plaintiff must request a name-clearing hearing in order to bring the type of constitutional challenge Plaintiff alleges. The City Defendants also argue that Plaintiff's contention that Defendants had an "affirmative duty" to apprize him of his constitutional right to a name-clearing hearing is raised for the first time on appeal, conflicts with this circuit's precedent, and is irrelevant as Plaintiff does not claim that he did not know he had such a right because Defendants failed to tell him.

Both the City and County Defendants raise other arguments to support dismissal of Plaintiff's complaint. For instance, Defendants contend that the statements alleged in Plaintiff's complaint are insufficient as a matter of law to support a deprivation of liberty interest claim, and the County Defendants, specifically, assert that because Plaintiff was not a County employee, the county owed him no right to a name-clearing hearing.

As we explain below, Plaintiff failed to request a name-clearing hearing, which was fatal to his claim, and therefore the district court properly dismissed his complaint.

The Fourteenth Amendment forbids state actors from depriving individuals of life, liberty or property without due process of law. See Mertik, 983 F.2d at 1359; see also Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70 (1972); Joelson v. United States, 86 F.3d 1413, 1420 (6th Cir. 1996) ("To sustain a procedural due process claim, a plaintiff must first demonstrate the existence of a protected liberty or property interest."). Except in exceptional circumstances, not applicable here, before a person is deprived of either a liberty or property interest, he has a right to some kind of hearing. Roth, 408 U.S. at 570 n.7. "[A] person's reputation, good name, honor, and integrity are among the liberty interests protected by the due process clause of the fourteenth amendment." Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir. 1989). However, defamation alone is not enough to invoke due process concerns. Paul v. Davis, 424 U.S. 693, 711 (1976). Some alteration of a right or status "previously recognized by state law," such as employment, must accompany the damage to reputation. Id. at 711-12; see also Ferencz v. Hairston, 119 F.3d 1244, 1249 (6th Cir. 1997) (holding that as publication of defamatory comments complained of was not accompanied by the deprivation of any tangible interest such as continued employment, the publication did not deprive plaintiffs of a liberty interest); Mertik, 983 F.2d at 1361 (explaining that when a plaintiff alleges "loss, infringement or denial of a government benefit previously enjoyed . . . coupled with communications by government officials, having a stigmatizing effect, a claim for deprivation of liberty without due process of law will lie"). Consequently, when a "nontenured employee shows that he has been stigmatized by the voluntary, public dissemination of false information in the course of a decision to terminate his employment, the employer is required to afford him an opportunity to clear his name." Chilingirian, 882 F.2d at 205; see also Roth, 408 U.S. at 573 (explaining that "where a person's good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential"); Christian v. Belcher, 888 F.2d 410, 417 (6th Cir. 1989) (explaining that due process concerns are implicated where public employer voluntarily disseminates false information in the course of a decision to terminate an employee). A name-clearing hearing is required only if the employer creates a false and defamatory impression about a particular employee in connection with his termination. Id.

This Court has identified five factors that a plaintiff must show in order to establish that he was deprived of a liberty interest and entitled to a name-clearing hearing.

First, the stigmatizing statements must be made in conjunction with the plaintiff's termination from employment. . . . Second, a plaintiff is not deprived of his liberty interest when the employer has alleged merely improper or inadequate performance, incompetence, neglect of duty or malfeasance. . . . Third, the stigmatizing statements or charges must be made public. Fourth, the plaintiff must claim that the charges made against him were false. Lastly, the public dissemination must have been voluntary.

Brown v. City of Niota, 214 F.3d 718, 722-23 (6th Cir. 2000) (citing Ludwig v. Bd. of Trustees, 123 F.3d 404, 410 (6th Cir. 1997)).

"Once a plaintiff has established the existence of all five elements, he is entitled to a name-clearing hearing if he requests one." Brown, 214 F.3d at 723 (citing Ludwig, 123 F.3d at 410). It is the denial of the name-clearing hearing that causes the deprivation of the liberty interest without due process. Brown, 214 F.3d at 723. Thus, the public employer deprives an employee of his liberty interest without due process, if upon request for a name-clearing hearing, the employee is denied. Id.; see also Baden v. Koch, 799 F.2d 825, 830 (2d Cir. 1986) ("In order to succeed on his liberty interest claim, [plaintiff] must also prove that [defendant] improperly refused to grant him a post-removal opportunity to refute the false charges that led to his removal;" as widely publicized derogatory comments alone amount to no more than a defamation claim, which is not cognizable under the Constitution); In re Selcraig, 705 F.2d 789, 796 (5th Cir. 1983) ("A constitutional deprivation of liberty occurs when there is some injury to employment . . . in addition to damage to reputation and a subsequent denial of procedural due process [via a name-clearing hearing or the like] to redress that injury.") (emphasis added). As the Fifth Circuit pointed out in Selcraig, the "fourteenth amendment provides only procedural protection against injury inflicted by state officers to the interest state employees have in their reputation." Id. Indeed, "the right to recover arises from the denial of a hearing to refute the charges . . . [thus], the extent of the publication would be relevant only to the amount of damages suffered." Id. at 797 n.10.

The purpose of a name-clearing hearing is to afford the aggrieved employee an "opportunity to be heard to refute the charges disseminated against him." Ludwig, 123 F.3d at 410. The hearing "need only provide an opportunity to clear one's name and need not comply with formal procedures to be valid." Id.

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Click the case caption above for the full text of the Court's opinion.

Outcome: In order for a plaintiff to show that he has been deprived of a liberty interest in his reputation without due process, the plaintiff first must request a name-clearing hearing. It is undisputed that Plaintiff failed to request a name-clearing hearing before filing the instant action, and the district court properly dismissed his complaint. We therefore AFFIRM.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None