REVISED, FEBRUARY 14, 2000
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-10482
TAMARA L. HUGHES,
Plaintiff-Appellant,
VERSUS
CITY OF GARLAND,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
February 10, 2000
Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Plaintiff Tamara Hughes sued her former employer, the City of
Garland, alleging that the City violated her due process rights by
denying her a meaningful opportunity to clear her name after she
was terminated from her job as a 911 operator because she filed a
false police report. The City moved for and was granted summary
judgment. We review the district court’s grant of summary judgment
de novo, and affirm.
BACKGROUND
Hughes was a 911 operator with the Garland Police Department
from 1994 until her termination on April 4, 1997. Hughes’s
employment with the City was at will.
For several months prior to February 1997, Hughes was
romantically involved with a city police officer. On February 8,
1997, the police officer ended the relationship. The
uncontroverted summary judgment evidence is that Hughes was
despondent and depressed about this development. The next day,
Hughes called one of her co-workers in the dispatch office of the
police department. Hughes told her friend that someone had tried
to sexually assault Hughes at her home. Hughes also called the
police officer and reported the attempted sexual assault, telling
him that he would probably be questioned about the attack because
investigators had noticed his picture on her coffee table. City
police officers investigated the incident, and eventually
determined that the attack reported by Hughes did not occur, and
that Hughes had filed a false report, in violation of city policy.
On April 3, 1997, Hughes’s supervisor recommended that her
employment be terminated for making a false police report in
violation of city policy. Significantly, Hughes was provided with
written notice of the City’s intent to terminate her employment and
the reasons for that decision. By letter dated April 3, 1997,
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Hughes was informed:
On February 9, 1997, you made statements to Garland
Police Officer S. Vornberg that your home had been
entered and you were assaulted. In his official
capacity as an officer, you caused him to file an
offense report. On the same date and during the
official investigation into this matter, you made
similar statements in a written sworn affidavit to
Police Detective Van Cleave. The investigation has
revealed evidence that the offense and statements
you made in those official documents were false.
Hughes was also informed that she had the right to respond and to
explain, either orally or in writing, why she should not be
discharged.
On April 4, 1997, Hughes responded in writing. Hughes
asserted that she should not be discharged, claiming that her
report of attempted sexual assault was true. The City responded
with an official notice of termination. Significantly, that letter
informed Hughes that she could present her case at a hearing before
the city manager, at which time she could appear with counsel and
present witnesses with information relevant to the City’s decision
to terminate her for filing a false police report.
Hughes requested such a hearing and appeared with counsel
before the city manager on May 13, 1997. At the hearing, the city
manager explained that he would consider whatever Hughes had to say
when deciding whether the decision to terminate Hughes’s employment
needed to be rescinded. Hughes was then given an opportunity to
tell the city manager her version of the facts, which included her
assertion that the assault occurred and that she did not file a
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false report. Hughes’s father also spoke on her behalf. On June
17, 1997, the city manager notified Hughes in writing that the City
had considered her statements and decided to adhere to the decision
to terminate her employment.
In December 1997, Hughes brought this suit against the City of
Garland, alleging that the City wrongfully accused her of filing a
false police report and then denied her any meaningful opportunity
to clear her name. Hughes sought reinstatement to her position and
compensatory damages. The City moved for summary judgment arguing,
inter alia, (1) that Hughes failed to produce evidence competent to
establish that the City made the reasons for her termination
public, and (2) that Hughes could not prevail because she did in
fact receive a meaningful opportunity to clear her name. The
district court relied upon the first ground to grant summary
judgment in favor of the City, holding that Hughes’s evidence did
not establish public disclosure of the reasons for her discharge by
the City. The district court did not address the remaining
arguments asserted by the City in support of its summary judgment
motion. Hughes filed a timely notice of appeal.
On appeal, Hughes argues that she produced sufficient evidence
that the City publicly disclosed the reason for her termination,
and that she was not provided any meaningful opportunity to clear
her name. The City reasserts its arguments to the contrary, which
were included in the City’s motion for summary judgment.
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DISCUSSION
I.
The Supreme Court first recognized that there may be a
constitutional requirement for notice and an opportunity to be
heard upon dismissal from government employment in Perry v.
Sinderman, 92 S. Ct. 2694 (1972), and Board of Regents v. Roth, 92
S. Ct. 2701 (1972), both decided June 29, 1972. The right to
notice and an opportunity to be heard in this context are
procedural requirements rather than substantive due process rights,
and those requirements never arise unless the plaintiff can allege
some deprivation of liberty or property as set forth in the
Fourteenth Amendment. Perry, 92 S. Ct. at 2698; see also Wells v.
HICO Indep. Sch. Dist, 736 F.2d 243, 251 (5th Cir. 1984); Moore v.
Mississippi Valley State Univ., 871 F.2d 545, 548 (5th Cir. 1989)
(discussing “threshold requirement” that “the plaintiff demonstrate
either a liberty or a property interest in her public employment”).
Both Perry and Roth involved primarily the issue of whether the
plaintiffs had any property interest in their non-tenured
employment as university professors. There is no allegation in
this case that Hughes had any property interest in continued
employment by the City.
In Roth, the Supreme Court also distinguished the case at hand
by recognizing that a state’s employment decisions might implicate
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liberty interests. Roth, 92 S. Ct. at 2707. The Court noted 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.” Id. (internal alterations
and quotations omitted). In such a case, due process requires that
the affected employee be given notice of the charges and an
opportunity to clear his or her name. Id. at 2707 & n.12. This
Court explored the boundaries of the liberty interest recognized in
Roth in Rosenstein v. City of Dallas, 876 F.2d 392, 395 (5th Cir.
1989):
[P]ublic officials do not act improperly in
publicly disclosing charges against employees, but
they must thereafter afford procedural due process
to the person charged. 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. 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 interest under the Fourteenth Amendment.
Id. at 395 (internal citations omitted).1
To state a claim for deprivation of a liberty interest, the
plaintiff must allege more than merely the stigma of discharge.
See Wells, 736 F.2d at 256 (Mere proof that the employment decision
1
Rehearing was subsequently granted in Rosenstein, but the
majority opinion cited herein was eventually reinstated in relevant
part. See Rosenstein v. City of Dallas, 901 F.2d 61 (5th Cir.
1991) (en banc).
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“might make an individual less attractive to other employers does
not, by itself, implicate a liberty interest.”); see also Farias v.
Bexar County Bd. of Trustees for Mental Health Mental Retardation
Servs., 925 F.2d 866, 878 (5th Cir. 1991). Moreover, concern about
the impact of the plaintiff’s discharge on his or her general
reputation is not, standing alone, sufficient to give rise to the
required liberty interest. See Rosenstein, 876 F.2d at 395 n.1; In
re Selcraig, 705 F.2d 789, 795-96 (5th Cir. 1983); White v. Thomas,
660 F.2d 680, 684 (5th Cir. 1981). To the contrary, “a
constitutionally protected liberty interest is implicated only if
an employee is discharged in a manner that creates a false and
defamatory impression about him and thus stigmatizes him and
forecloses him from other employment opportunities.” White, 660
F.2d at 684; see also Moore, 871 F.2d at 550; Wells, 736 F.2d at
256. Hughes’s claim is premised upon such a deprivation of
liberty. Hughes maintains that the City’s allegation that she made
a false police report is relevant to and can be reasonably expected
to interfere with her future employment prospects in other police
departments as a 911 operator.
To prevail on her § 1983 claim that the City infringed upon a
cognizable liberty interest by denying her the opportunity to clear
her name, Hughes must show: (1) that she was discharged; (2) that
stigmatizing charges were made against her in connection with the
discharge; (3) that the charges were false; (4) that she was not
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provided notice or an opportunity to be heard prior to her
discharge; (5) that the charges were made public; (6) that she
requested a hearing to clear her name; and (7) that the employer
refused her request for a hearing. See Rosenstein, 876 F.2d at
395-96; Moore, 871 F.2d at 549. While there is an obvious dispute
about whether there was ever any assault and, thus, whether Hughes
in fact filed a false police report, the propriety of summary
judgment does not depend upon the resolution of that factual
dispute. Rather, the propriety of summary judgment in this case
centers around Hughes’s alleged failure to produce any evidence
with respect to element (5); only if she prevailed on that element
would we reach elements (6) and (7).
II.
Hughes offered three types of evidence to satisfy the public
disclosure element of her claim. First, Hughes offered affidavit
testimony from Jackie Parker and William H. Johnson. Jackie
Parker, who is Hughes’s neighbor, testified that she called the
police department about two weeks to one month after the alleged
assault on Hughes. Parker called to get assistance because her
daughter’s bicycle had been stolen, but she also took the
opportunity to prod a 911 operator about the alleged assault at
Hughes’s address. Parker told the operator that the entire
neighborhood was concerned for the safety of their daughters and
neighbors and that she needed to know what was happening with the
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investigation. Parker testified that the operator then said that
the person reporting the offense was a 911 operator who made the
report to get attention after a failed romance and that Parker
should not be concerned that further assaults would occur.
William H. Johnson, an employee in an auto repair shop owned
by a city policeman, testified that his boss, the policeman, told
him that the boss’s secretary told the boss that the Hughes report
was “a bull shit deal.” Johnson also testified that an office
supply worker who is friends with a city police officer asked
Johnson whether he had “heard about” Hughes. Finally, Johnson
testified that there was talk among his co-workers at the auto
repair shop about Hughes being a jilted lover who filed a
retaliatory false report. Hughes contends that the Parker and
Johnson affidavits are competent and sufficient evidence to create
a fact issue concerning whether the City orally disclosed the
reason for her discharge through its 911 operator or a city police
officer.
The district court held that this evidence failed to create a
genuine issue of material fact because there was no “connection
between the publication and some act by a city official.” The
district court concluded that there was no indication that the
reassurance offered to Hughes’s neighbor by the 911 operator or the
shop talk circulating around Mr. Johnson’s work place was generated
in any way by conduct fairly attributable to the City. Hughes
maintains that it is immaterial who released the information
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concerning her discharge or whether that person had authority to
act for the City. Stated differently, Hughes maintains that the
relevant test is whether the City had a policy or practice of
failing to protect employee information such that the information
was in fact released, without regard to whether the release can
fairly be ascribed to the City. We disagree. This Court’s
authority conclusively establishes that public disclosure must be
fairly attributable to the defendant employer. See, e.g.,
Blackburn v. City of Marshall, 42 F.3d 925, 936 n.10 (5th Cir.
1995); Moore, 871 F.2d at 549-50; Wells, 736 F.2d at 257-58; In re
Selcraig, 705 F.2d at 795-97.
There remains, however, the question of whether the comments
of the 911 operator or the police officer, both recounted in the
form of second-hand hearsay or worse in the summary judgment
evidence, can be fairly ascribed to the City. We agree with the
district court that there is no triable issue arising from the
affidavit testimony. First of all, neither Parker nor the 911
operator is alleged to have identified Hughes by name during the
call. Rather, the 911 operator released relatively innocuous
information in response to the direct inquiries of an informed and
concerned citizen. Johnson’s affidavit, which provides only
several rambling scenarios in which Hughes’s name came up, is even
less probative. The only comment attributed to the city police
officer is a report gathered from his secretary and passed on to
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auto repair shop employees that the report was a “bull shit deal.”
Hughes has shown nothing more than that some people in the
community heard rumors about the events leading up to her
discharge. This casual gossip falls well short of “intentional or
official” disclosure by the City. See Wells, 736 F.2d at 256; In
re Selcraig, 705 F.2d at 796 n.6.
Hughes also offered evidence that there was a stray page in
her city personnel file that was taken from the diagnostic manual
known as the Diagnostic and Statistical Manual (DSM). Hughes does
not argue that the contents of her personnel file (including the
objectionable page) have been disclosed, but that they are likely
to be disclosed because Texas law provides that the personnel files
of state employees are freely available in all their particulars to
anyone who asks. See In re Selcraig, 705 F.2d at 796 n.6. The
City responds with evidence that the personnel records of state
employees are not freely available, and that both the employer and
the government employee have the right to resist disclosure of such
records when disclosure will invade the government employee’s
privacy. Further, the City responds that the City’s policy is to
keep employee information confidential, and that no city official
or employee is authorized to release information about a former
employee aside from the starting and ending dates of employment,
the salary at termination, and the last position held. We conclude
that the mere presence of the DSM page in Hughes’s personnel file
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is insufficient to create a triable issue on the public disclosure
element of her claim.
Hughes’s final evidence of public disclosure is based upon the
fact that she herself must disclose the reason for her discharge to
prospective employers. Thus, Hughes is arguing that compelled
self-publication may satisfy the requirement of public disclosure.
The Circuits are split on the issue of whether self-publication may
satisfy the public disclosure element in a § 1983 claim alleging
that the plaintiff was denied a name clearing hearing. See
Olivieri v. Rodriguez, 122 F.3d 406, 408-409 (7th Cir. 1997)
(collecting cases, documenting circuit split, and discussing
problems with the self-compelled publication rationale), cert.
denied, 118 S. Ct. 1040 (1998). This Circuit has consistently
required that public disclosure be made by the City. See, e.g.,
Blackburn v. City of Marshall, 42 F.3d 925, 936 n.10 (5th Cir.
1995); Moore, 871 F.2d at 549-50; Wells, 736 F.2d at 257-58; In re
Selcraig, 705 F.2d at 795-97. Indeed, we have expressly held that
there is no liability when the “agency has carefully kept the
charges confidential and the plaintiff caused them to be made
public.” Rosenstein, 876 F.2d at 396 n.6. This precedent is
sufficient to require rejection of the self-publication rationale.
For the foregoing reasons, we agree with the district court that
summary judgment is appropriate because there is no genuine issue
of material fact with respect to the public disclosure element of
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Hughes’s claim.
CONCLUSION
The district court’s grant of summary judgment in favor of the
City of Garland is AFFIRMED.
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