Public employee not always entitled to a name-clearing hearing

Public employee not always entitled to a name-clearing hearing
Brown v Simmons, 478 F.3d 922

The lesson in Brown v Simmons is that a public employee is not entitled to a name-clearing hearing to rebut statements of a defamatory nature except when he or she has been terminated by the employer.*

Jim Brown, a teacher, sued James Simmons, the superintendent of the Conway (Arkansas) Public School District, alleging that Simmons infringed Brown’s procedural due process rights by denying him a name-clearing hearing. Brown contended that he was entitled to a name-clearing hearing because he was stigmatized by defamatory statements made by other school officials. In the words of the Circuit Court of Appeals, “Brown filed a “stigma plus” claim.”

The district court dismissed Brown’s complaint, finding that he failed to “state a claim upon which relief can be granted.” The Circuit court affirmed the district court’s ruling.

It noted that defaming a governmental employee’s reputation, good name, honor, or integrity in connection with terminating the employee, without giving the employee a name-clearing hearing, is a deprivation of the employee’s constitutionally protected liberty interest.

To state a “stigma plus” claim, the employee must allege:

(1) an official made a defamatory statement that resulted in a stigma;

(2) the defamatory statement occurred during the course of terminating the employee;

(3) the defamatory statement was made public; and

(4) an alteration or extinguishment of a right or legal status.

In response to Simmons’ motion to dismiss Brown’s cause of action, Brown alleged he had been transferred and lost pay. The district court, however, said that “even if accepted, [Brown’s claims] are insufficient to trigger the protection of the due process clause.”

The court, quoting from Hughes v. Whitmer, 714 F.2d 1407, said:

“the constitution does not require the government to give to its stigmatized employee a hearing if the public employee remains a public employee” and “the internal transfer of an employee, unless [the transfer] constitutes such a change of status as to be regarded essentially as a loss of employment, does not . . . give rise to a liberty interest meriting protection under the due process clause.

The Simmons decision appears consistent with the law in New York – dismissal is the triggering event entitling an individual to a name-clearing hearing.

As the New York State Court of Appeals held in Matter of Stanziale, 55 NY2d 735, -- where the basis for dismissal is of a "stigmatizing nature" the individual is entitled to some due process so as to clear his or her name.

In Matter of Murphy v City of New York, 2006 NY Slip Op 10135, decided December 28, 2006, Appellate Division, First Department, Index 109352/05, the court ruled that Murphy was entitled to a name clearing hearing following his “coerced retirement.” The Retirement System conceded that there had been dissemination of a report prepared by Retirement System that contained inaccuracies and was stigmatizing. Regardless whether Murphy resigned or was fired, the court said that he has satisfied the requirement of loss of employment that is necessary to demand a name-clearing hearing.**

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/no-right-to-name-clearing-hearing.html

* The “New York Rule” in such situations is discussed in Ortiz v Ward, 546 NYS2d 624. In considering the need for a "name-clearing hearing," the Appellate Division noted that Ortiz was not entitled to such a hearing as he did not show that his employer had publicly disclosed the stigmatizing reasons for his discharge. New York courts have ruled that the internal disclosure of stigmatizing reasons for the discharge of a probationer to agency administrators did not constitute a public disclosure of such information and thus a "name-clearing hearing" was not required because of such intra-agency communications.

** See also of Johnston v Kelly, 35 AD3d 297, where the court said “the sole purpose of a name-clearing hearing is to afford the employee an opportunity to prove that the stigmatizing material in the personnel file is false."