V. Procedural Due Process and Employee Liberty Interests

LibraryMunicipal Law Deskbook (ABA) (2015 Ed.)

V. PROCEDURAL DUE PROCESS AND EMPLOYEE LIBERTY INTERESTS

The Constitution guarantees that the government may not deprive a person, including a public-sector employee, of liberty without procedural due process.98 The following sections will focus on two areas in which liberty interests most commonly arise for public-sector employees: impairment of an employee's reputation and substantive due process as it relates to the deprivation of employment.

A. When Does a Liberty Interest Arise?

The Supreme Court has explained that when "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." 99 Thus, depending on the circumstances of an employee's termination and the manner in which the termination is carried out, an employee's liberty interests may be implicated. In particular, when in the course of taking an employment action a public employer raises allegations that stigmatize the employee, the employee must be given an opportunity to defend against the allegations and clear his or her name.

In order for an actionable claim for deprivation of a liberty interest to arise, the public employer (1) must be taking an action to terminate the employment relationship (2) based upon a public statement (3) of unfounded charges of dishonesty or immorality (4) that might seriously damage the employee's standing in the community and foreclose future employment opportunities.100 Thus, the mere fact that an employee has been discharged is not enough to implicate the employee's constitutional liberty interests.101 Similarly, when an employee's reputation has been harmed but there is no tangible loss of status, there is no constitutional harm.102

Most courts have held that only significant personnel actions, such as discharge, are sufficient to trigger the employee's liberty interests.103 Failure to promote an employee will not result in a cognizable liberty claim, nor will the failure to transfer an employee.104 Similarly, the denial of vacation requests, the denial of overtime opportunities, and assignment to less favorable tasks as a method of disciplining an employee do not implicate the employee's liberty interests 105 (but may implicate property interests; see Section IV).

Courts have reached differing results when addressing whether a demotion can give rise to a deprivation of liberty claim. One court held that liberty interests could be implicated when an employee is "demoted from a responsible and well-paid job to a menial and low-paying one." 106 Another court held, however, that a demotion did not implicate the employee's liberty interests because the employee could not complain that the allegations made him unemployable.107

It is similarly unclear whether a suspension can give rise to a liberty claim. The Ninth Circuit, for example, has said that due process concerns are clearly invoked by a suspension without pay.108 Other courts have held that temporary suspensions do not implicate employees' liberty interests.109

The stigmatizing allegations must be publicized in order for a liberty interest to arise.110 Publicity can arise in two ways. First, public statements about the reasons for an employee's termination may invoke the employee's liberty interests if the other requirements for a claim are satisfied. Second, in some cases the placement of stigmatizing statements in an employee's personnel file might constitute "publicity" if the information may be subject to disclosure to the public and to future employers.111

The employer must be the source of any publicity for a claim to arise.112Thus, dissemination of information at the request of the employee does not implicate the employee's liberty interests.113 Furthermore, statements made by the employee's coworkers who are not acting on behalf of the employer do not meet the publicity requirement.114

In order to state a valid claim, the employee must allege that the stigmatizing allegations are substantially and materially false.115

As previously noted, the public charges must be sufficiently stigmatizing that they severely affect the employee's future employment opportunities.116 The Ninth Circuit has similarly explained that "reduced economic returns and diminished prestige, but not permanent exclusion from, or protracted interruption of, gainful employment within the trade or profession," do not constitute a deprivation of liberty.117 Charges of criminal conduct, dishonesty, and untrustworthiness are all sufficiently stigmatic to potentially implicate an employee's liberty interests.118 Thus, an allegation that a police officer falsified a speeding ticket was sufficiently stigmatic,119as were allegations that an attorney engaged in unprofessional conduct and was loud and disorderly.120

On the other hand, courts generally agree that dismissal because of "incompetence" is not stigmatic.121 Similarly, a statement that an employee's performance was "unacceptable" is not stigmatic.122

B. Name-Clearing Hearings

When a public-sector employer makes false and stigmatic charges during termination proceedings, the employee's liberty interests give rise to a right to a public name-clearing hearing.123 The Supreme Court has explained that the purpose of the name-clearing hearing "is solely to afford the opportunity to refute the stigmatic charges." 124 As such, unless the employee can establish a property interest in continued employment, the employee typically has no right to reinstatement or any other substantive outcome at the conclusion of the name-clearing hearing...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT