Tuesday, January 13, 2009

Sixth Circuit: Employee Whose Reputation Was Damaged By Publicizing Investigation Report Gets Chance To Clear Name Through a Public Hearing.

Last Thursday, the Sixth Circuit reversed the dismissal of a complaint brought in a Columbus federal court by an state engineering college department chair whose reputation had been damaged after the university, among other things, held a press conference publicizing certain investigations into plagiarism allegations in his department, blaming him and others for some of the lapses and then suspending him from advising graduate faculty students for three years. Gunasekera v. Irwin , No. 07-4303 (6th Cir. 1/8/09). The Court held that the Plaintiff had been deprived of constitutional due process when his graduate student advising status was suspended without a pre- or post deprivation hearing (which need not be public). However, the novel holding of the case is that the Plaintiff was entitled to a public name-clearing hearing in that his reputation had been damaged through a press conference publicizing a report which never contained his denials of the allegations.

According to the Court’s opinion, “[i]n 2004, [the Plaintiff] was the Moss Professor of Mechanical Engineering at the Russ College of Engineering and Technology of Ohio University (“Russ College”) and had been Chair of the Department of Mechanical Engineering for fifteen years. He had worked at Ohio University (“the University”) for more than two decades and had Graduate Faculty status at Russ College which enabled him to supervise graduate students’ thesis work. That year, a student alleged widespread plagiarism in mechanical engineering graduate-student theses. Two internal investigations uncovered plagiarism in collateral areas rather than in the analysis or conclusions. Following these probes, . . . the Provost of Ohio University, instructed . . the Dean of Russ College, to take further action. In response, [the Dean] asked an administrator and a retired faculty member to investigate the alleged plagiarism. These men prepared a report known as the Meyer/Bloemer Report and submitted it to [the Dean] and [the Provost] on May 30, 2006.”

“On May 31, 2006, [the Provost] held a press conference to publicize the Meyer/Bloemer Report. As the district court explained, the report found “rampant and flagrant plagiarism in theses” and “singled out three faculty members, including [the Plaintiff], for ignoring their ethical responsibilities and contributing to an atmosphere of negligence toward issues of academic misconduct.” Gunasekera v. Irwin, 517 F. Supp. 2d 999, 1002 (S.D. Ohio 2007). In response to this report, the University suspended [the Plaintiff’s] Graduate Faculty status for three years and prohibited him from advising graduate students.” Plaintiff filed suit a few months later alleging deprivations of his property interests in his employment and liberty interests in his reputation without due process.

Constitutional Liberty Interests and Name Clearing Hearings.

The Supreme Court has previously explained that the fourteenth amendment to the constitution protects the property and liberty interests of citizens:

While this Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fourteenth Amendment], . . . [w]ithout doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.
Meyer v. Nebraska, 262 U.S. 390, 399.

In a 1972 case where the one-year employment contract of a non-tenured state college instructor was not renewed without any reason being given, the Supreme Court held that the instructor’s liberty interest in his reputation was not implicated. “The State, in declining to rehire the [instructor], did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For “[w]here 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.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573-74 (1972) (citing Wisconsin v. Constantineau, 400 U.S. 433, 437). “The State, for example, did not invoke any regulations to bar the [instructor] from all other public employment in state universities. Had it done so, this, again, would be a different case. For "[t]o be deprived not only of present government employment but of future opportunity for it certainly is no small injury.” Indeed, “[i]n such a case, due process would accord an opportunity to refute the charge before University officials.” Roth, supra. “The purpose of such notice and hearing is to provide the person an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other reasons.” Id. at n. 12.

In Gunasekera, the Defendants conceded that the Plaintiff possessed a liberty interest. “Given this concession, [the Court did] not need to apply [its] five-factor test used to decide whether someone is entitled to a name clearing hearing due to a deprivation of his or her liberty interest” Nonetheless, the Court indicated that it would likely have done so because “[t]he accusations regarding plagiarism were connected to his suspension (and as discussed above, [the Plaintiff’s] suspension deprived him of benefits and pay); the University alleged more than simple incompetence; the allegations were public; [the Plaintiff] claims that the statements were false; and the University called a press conference to publicize its charges.” Notably, there is no indication in the Court’s opinion that the Plaintiff had ever been interviewed as part of the investigation process or that his denials or version of events was included in the publicized reports. Thus, there seems to have been no public airing or publicization of his version of events or denials when the allegations against him were publicized.

The Court found that the parties’ dispute “boils down to what process is due and whether such a hearing must be public.” Procedurally, the Court was compelled to accept the Plaintiff’s allegations as true at this stage of the litigation. This is important because there was “some dispute as to whether the hearing offered by the University was public or not. . . The University asserted, and the district court agreed, that the proposed hearing was public because [the Plaintiff] would have been allowed to bring anyone, including members of the press, to his hearing. Gunasekera, 517 F. Supp. 2d at 1014 & n.9. [The Plaintiff] counters that the hearing offered was not public because the University specifically denied his request for a hearing publicized in the same way the Meyer/Bloemer report had been. Id. However, this dispute is contained in documents outside the pleadings which we cannot properly consider on a Rule 12(b)(6) motion. Taking the allegations in the complaint in the light most favorable to [the Plaintiff] , [the Court] assume[d] that he was not offered a public opportunity to clear his name.”

In the past, the Court had held that “a name-clearing hearing need only provide an opportunity to clear one’s name and need not comply with formal procedures to be valid.” Chilingirian v. Boris, 882 F.2d 200, 206 (6th Cir. 1989).” Nonetheless, the Court had not addressed “whether a name-clearing hearing must include a public opportunity clear one’s name.” For instance, “a university disciplinary hearing need not be public.” Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 635 (6th Cir. 2005). However, “a disciplinary hearing is very different from a name-clearing hearing. A name-clearing hearing is not a venue for an employer to determine the proper punishment, but rather an opportunity for an individual to confront a public stigma that has already been imposed by an employer.”

Entitlement to a name clearing hearing depends on “(1) the nature of the private interest affected—that is, the seriousness of the charge and potential sanctions, (2) the danger of error and the benefit of additional or alternate procedures, and (3) the public or governmental burden were additional procedures mandated. Flaim, 418 F.3d at 635 (describing test instituted by Supreme Court in Mathews).” In considering the first prong of this test, the Court found it to be “clear that where, as here, the employer has inflicted a public stigma on an employee, the only way that an employee can clear his name of the public stigma is through publicity. The injury of which [the Plaintiff] complains is the fact that he was publicly associated with and perhaps partially blamed for a plagiarism scandal. As to the second prong of Mathews, publicity adds a significant benefit to the hearing, and without publicity the hearing cannot perform its name-clearing function. A name-clearing hearing with no public component would not address this harm because it would not alert members of the public who read the first report that [the Plaintiff] challenged the allegations. Similarly, if [the Plaintiff’s] name was cleared at an unpublicized hearing, members of the public who had seen only the stories accusing him would not know that this stigma was undeserved. . . . Following this conclusion [in a similar case], the Second Circuit held that: ‘Requiring the [employer] to address such risk by offering plaintiff the opportunity to publicly refute the charges made against him or publicising his refutations itself, does not place an undue burden upon the government’s interest in terminating [employees] who either are not performing to expected standards or are behaving in an unacceptable fashion.’ Id. [The Court] agreed with the Second Circuit that requiring that name-clearing hearings involve some form of publicity would not necessarily put an undue burden on the government.” (emphasis added).

“In order to determine what the name-clearing hearing should entail and what its limits might be in each case, courts should again turn to the Mathews balancing test. . . By applying this test to the facts of the case before it, a court can tailor a name-clearing hearing which allows the employee to challenge directly any public stigma while also accounting for any legitimate concerns of the employer. . . . Requiring that a name clearing hearing include a public component may be the only way to make such a hearing effective. If a name-clearing hearing has no public component, it may not be able to serve its function of curing the public stigma that necessitated the hearing. With respect to the third prong, government interests will shape the nature of the publicity required. For example, privacy concerns within the university setting might dictate the form of the publicity. Cf. Flaim, 418 F.3d at 637 n.2 (noting that the publicity attending a “full-dress judicial hearing” “might be detrimental to the college’s educational atmosphere”). Though [the Court had] few facts before [it] on this Rule 12(b)(6) motion, . . . it is possible that concerns for the privacy of students [under FERPA, etc.] implicated in plagiarism would impact the precise nature of the publicity required.”

The Court held that the university would be ”required to offer [the Plaintiff] a name-clearing hearing that is adequately publicized to address the stigma the university inflicted on him. The exact nature of that publicity depends on a fact-intensive review of the circumstances attending his case,” which was left “to the district court . . . regarding the exact parameters of the name-clearing hearing.” Considering that the defendants had prematurely presented some evidence that a public hearing had already been offered to the Plaintiff, it remains to be seen whether the district court will find the prior offer to be sufficient on summary judgment or at trial. Because this was a new issue for the Court and the right to a public hearing was not established law in this Circuit, it found that the defendants were entitled to qualified immunity on this allegation.

Property Interest in Advising Graduate Students.

The Plaintiff also alleged that he had been denied property interests without due process of law in that his graduate student advising status had been suspended for three years without a pre or post deprivation hearing.

The Supreme Court has previously explained in Roth that “the Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests -- property interests -- may take many forms.” Among other things, these property interests extend to “a person receiving welfare benefits under statutory and administrative standards defining eligibility for them, ” to “a public college professor dismissed from an office held under tenure provisions, to “college professors and staff members dismissed during the terms of their contracts,” and “to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment.” Roth, supra. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.”

In Gunasekera, the Sixth Circuit noted that “[t]o prevail on the claim that he was unconstitutionally deprived of his property when his Graduate Faculty status was suspended, [the Plaintiff] must “‘establish three elements; (1) that [he] ha[s] a life, liberty, or property interest protected by the Due Process Clause of the Fourteenth Amendment . . . , (2) that [he] w[as] deprived of this protected interest within the meaning of the Due Process Clause, and (3) that the state did not afford [him] adequate procedural rights prior to depriving [him] of [his] protected interest.’” The Defendants denied that the Plaintiff had any property interest in his graduate student advising status because they retained the discretion to suspend him under the circumstances and he suffered no decrease in his salary or benefits.

Plaintiff “alleges that Graduate Faculty status is ‘a right intrinsic’ that a professor maintains so long as he or she satisfies the four criteria the University requires of its Graduate Faculty. Id. He argues that because these criteria limit the University’s discretion to name Graduate Faculty and because ‘[i]n actual practice . . . professors retain their appointment so long as they satisfy those criteria,” he has a property interest in his Graduate Faculty status.’” The Plaintiff’s “argument does not turn on the language of the [university] regulations, but rather on his ability to show that a common practice and understanding had developed which gave him a legitimate claim to Graduate Faculty status so long as he met the stated [four] conditions. At oral argument, the University admitted that there is no precedent regarding when Graduate Faculty status is retained, because it has never been revoked or suspended [before Plaintiff’s status was revoked]. Viewing the allegations in the complaint in the light most favorable to” the Plaintiff, the Court found that “he has alleged that University custom gives him a property interest in his Graduate Faculty status.”

Moreover, because Plaintiff lost some income “(including “a summer salary research stipend that complements annual salary” for Graduate Faculty) and benefits (such as a reduced teaching load), his suspension “alter[ed] his employment enough to make Graduate Faculty status a property interest.” See also “Newman v. Commonwealth, 884 F.2d 19, 25 n.6 (1st Cir. 1989) (“In this case, plaintiff was barred from voting on degrees and from serving on important university committees or as chair of her department. A letter of censure for an act of ‘objective plagiarism’ and ‘seriously negligent scholarship’ was placed in her permanent file, an action that undoubtedly affects her ability to secure other employment in the future. We think it obvious that this severe sanction substantially damaged plaintiff’s property interest in her position.” (emphasis added)).”

Having shown that he suffered a property loss when his graduate student advising status was suspended, the Plaintiff was then required to show that he was deprived of his property interest without due process (i.e., a pre- or post- termination hearing). In this case, the Plaintiff alleged that “he was not given notice or an opportunity to be heard regarding “his satisfaction of the criteria for appointment to Graduate Faculty status” before or after his suspension. Moreover, “[a]t oral argument, [Defendants’] lawyer conceded that [the Plaintiff] had not been offered either a pre- or a post-deprivation hearing.” The Sixth Circuit has already “held that prior to termination of a public employee who has a property interest in his employment, the due process clause requires that the employee be given ‘oral or written notice of the charges against him or her, an explanation of the employer’s evidence, and an opportunity to present his or her side of the story to the employer.’” . . . Because [the Plaintiff] asserts that he was never given any opportunity to be heard either before or after he was deprived of his property interest in his Graduate Faculty status, the district court’s dismissal of [the Plaintiff’s] property-interest claim must be reversed.”

Insomniacs can read the full court decision at http://www.ca6.usc.ourtsgov/opinions.pdf/09a0005p-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.