Codd v. Velger
Opinion of the Court
Respondent Velger’s action shifted its focus, in a way not uncommon to lawsuits, from the time of the filing of his complaint in the United States District Court for the Southern District of New York to the decision by the Court of Appeals for the Second Circuit which we review here. His original complaint alleged that he had been wrongly dismissed without a hearing or a statement of reasons from his position as a patrolman with the New York City Police Department, and under 42 U. S. C. § 1983, sought reinstatement and damages for the resulting injury to his reputation and future employment prospects. After proceedings in
The case came on for a bench trial before Judge Werker, who, in the words of his opinion on the merits, found “against plaintiff on all issues.” He determined that the only issue which survived Judge Gurfein’s ruling on the earlier motions was whether petitioners, in discharging respondent had “imposed a stigma on Mr. Yelger that foreclosed his freedom to take advantage of other employment opportunities.” After discussing the evidence bearing upon this issue, Judge Werker concluded that “[i]t is clear from the foregoing facts that plaintiff has not proved that he has been stigmatized by defendants.”
Among the specific findings of fact made by the District Court was that an officer of the Penn-Central Railroad
Respondent successfully appealed this decision to the Court of Appeals for the Second Circuit. That court held that the finding of no stigma was clearly erroneous. It reasoned that the information about the apparent suicide attempt was of a kind which would necessarily impair employment prospects for one seeking work as a police officer. It also decided that the mere act of making available personnel files with the employee’s consent was enough to place responsibility for the stigma on the employer, since former employees had no practical alternative but to consent to the release of such information if they wished to be seriously considered for other employment. Velger v. Cawley, 525 F. 2d 334 (1975).
We granted certiorari, sub nom. Cawley v. Velger, 427 U. S. 904 (1976), and the parties have urged us to consider whether the report in question was of a stigmatizing nature, and whether the circumstances of its apparent dissemination were such as to fall within the language of Board of Regents v. Roth, 408 U. S. 564, 573 (1972) and Bishop v. Wood, 426 U. S. 341 (1976). We find it unnecessary to reach these issues, however, because of respondent’s failure to allege or prove one essential element of his case.
Where the liberty interest involved is that of conditional freedom following parole, we have said that the hearing required by the Due Process Clause in order to revoke parole must address two separate considerations. The first is whether the parolee in fact committed the violation with which he is charged, and the second is whether if he did commit the act his parole should, under all the circumstances, therefore be revoked. Morrissey v. Brewer, 408 U. S. 471, 479-480 (1972); Gagnon v. Scarpelli, 411 U. S. 778, 784 (1973). The fact that there was no dispute with respect to the commission of the act would not necessarily obviate the need for a hearing on the issue of whether the commission of the act warranted the revocation of parole.
But the hearing required where a nontenured employee has been stigmatized in the course of a decision to terminate his employment is solely “to provide the person an opportunity to clear his name.” If he does not challenge the substantial truth
Our decision here rests upon no overly technical application of the rules of pleading. Even conceding that the respondent’s termination occurred solely because of the report of an apparent suicide attempt, a proposition which is certainly not crystal clear on this record, respondent has at no stage of this litigation affirmatively stated that the “attempt” did not take place as reported. The furthest he has gone is a suggestion by his counsel that “[i]t might have been all a mistake, [i]t could also have been a little horseplay.” This is not enough to raise an issue about the substantial accuracy of the report. Respondent has therefore made out no claim under the Fourteenth Amendment that he was harmed by the denial of a hearing, even were we to accept in its entirety
The judgment of the Court of Appeals is reversed with instructions to reinstate the judgment of the District Court.
So ordered.
Respondent’s amended complaint did not seek a delayed Both hearing to be conducted by his former employer at which he would have the opportunity to refute the charge in question. Board of Regents v. Roth, 408 U. S. 564, 573 (1972). The relief he sought was premised on the assumption that the failure to accord such a hearing when it should have been accorded entitled him to obtain reinstatement and damages resulting from the denial of such hearing. We therefore have no occasion to consider the allocation of the burden of pleading and proof of the necessary issues as between the federal forum and the administrative hearing where such relief is sought.
The Court of Appeals did not pass on this "property interest” question. Respondent has not urged it as an alternative basis for affirming the judgment of that court, and indeed has all but conceded in his brief that the District Court’s interpretation of the relevant New York cases is correct in this respect. Brief for Respondent 14. The opinion of the District Court on this point reflects a proper understanding of Roth, supra, and of Perry v. Sindermann, 408 U. S. 598 (1972), and we see no reason to disturb its application of those cases to particular facets of the New York law of entitlement to public job tenure. Id., at 602 n. 7.
Dissenting Opinion
dissenting.
I dissent from today’s holding substantially for the reasons expressed by my Brother Stevens in Part I of his dissent, despite my belief that the Court’s ruling is likely to be of little practical importance.
Respondent alleged that he suffered deprivation of his liberty when petitioners terminated his employment and retained stigmatizing information in his employment file, information later disseminated to a prospective employer. Under Board of Regents v. Roth, 408 U. S. 564, 573 (1972), respondent therefore was entitled to a timely pretermination hearing. The Court today reaffirms Roth, but holds that respondent’s retrospective claim for damages and equitable relief under 42 U. S. C. § 1983 must be denied because “at no stage of this litigation,”
Twice before this Term we have reasserted the principle that once a plaintiff establishes that another has interfered with his constitutional rights, the burden shifts to the wrongdoer to demonstrate that any such interference was strictly harmless. Arlington Heights v. Metropolitan Housing Dev. Corp., ante, at 270-271, n. 21; Mt. Healthy City Board of Ed. v. Doyle, ante, at 287. In this case respondent met his initial burden, for he adequately alleged that he has suffered injury to his reputation and job prospects in conjunction with a discharge from public employment, and that petitioners failed to comply with Roth’s resulting requirement of a due process hearing. I agree that the District Court remains open to a determination that petitioners’ denial of respondent’s due process rights produced little
I also agree with Part III of Mr. Justice Stevens’ dissenting opinion, and I would therefore remand this case to the Court of Appeals for further proceedings.
The Court fortunately makes clear that it is not calling for an
Respondent has never argued that the disseminated information, while truthful, was not properly informative of his role as policeman or employee. As Mr. Justice Blackmun notes, ante, at 629, the Court’s opinion, therefore, does not address — and does not foreclose — the question of whether the Constitution imposes separate constraints upon the collection and dissemination of stigmatizing information that bears only an attenuated relationship to one’s job performance or qualifications.
A determination of truthful material would preclude an award of damages for false stigmatization of plaintiff’s reputation. Nonetheless, because of petitioners’ failure to satisfy Roth’s requirement of a pretermi
Dissenting Opinion
dissenting.
Although sharing generally the views expressed in the Court’s opinion, I agree with Part III of Mr. Justice Stevens’ dissenting opinion, and I would for that reason remand this case to the Court of Appeals for further proceedings.
Dissenting Opinion
dissenting.
There are three aspects of the Court’s disposition of this case with which I disagree. First, I am not persuaded that a person who claims to have been “stigmatized” by the State without being afforded due process need allege that the charge against him was false in order to state a cause of action under 42 U. S. C. § 1983. Second, in my opinion the Court should not assume that this respondent was stigmatized, because the District Court’s contrary finding was not
I
The Court holds that respondent’s failure to allege falsity negates his right to damages for the State’s failure to give him a hearing. This holding does not appear to rest on the view that a discharged employee has no right to a hearing unless the charge against him is false.
This hearing must include consideration of whether the charge, if true, warrants discharge. The discharge itself is part of the deprivation of liberty against which the employee is entitled to defend. Release of unfavorable information can damage an employee’s reputation and employment prospects, but far greater injury is caused by an official determination, based on such information, that the employee is unfit for public employment. Indeed the Court has held that an injury to reputation had not resulted in a deprivation of liberty because it was not associated with the termination of
“That a conclusion satisfies one’s private conscience does not attest its reliability. The validity and moral authority of a conclusion largely depend on the mode by which it was reached. Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done.” Anti-Fascist Committee v. McGrath, 341 U. S. 123, 171-172 (concurring opinion).
As the last sentence in this quotation demonstrates, if state action has consequences sufficiently grievous to constitute a deprivation of constitutionally protected liberty, it is essential that fair procedures be followed for reasons that have nothing to do with the merits of the individual case. Today’s holding is only a minor impairment of this principle. But the principle is one that admits of no compromise.
II
Although the plaintiff does not have the burden of proving that he was discharged for a false reason, if he claims that the discharge deprived him of liberty, he does have the burden of proving that he was stigmatized. The District Court found that respondent did not meet that burden in this case. Under the proper standard of appellate review,
The District Court found that unfavorable information from respondent’s police record reached a prospective employer in only one instance. In that instance, a private employer was allowed to see the file with respondent’s permission. The private employer then discharged respondent, who was on probationary status. The District Court expressly found that no' information was released to any government agency to which respondent had applied. App. 113a-114a.
The Court of Appeals also relied on the nature of the information itself as demonstrating that future release to employers would bar respondent from obtaining employment. Velger v. Cawley, 525 F. 2d 334, 336 (CA2 1975). Notwithstanding the broad discovery authorized by the Federal Rules of Civil Procedure, respondent failed to prove precisely what adverse information was in his personnel file. The revolver incident occurred sometime before respondent’s 21st birthday, when he was still a trainee; as his counsel points out, it might well have been “a little horseplay”; and his subsequent conduct as a police officer was presumably good. There was no finding that the revolver incident was the official reason for discharge.
In the performance of our appellate function “[i]t is not enough that we might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent. . . . We are not given those choices, because our mandate is not to set aside findings of fact ‘unless clearly erroneous.’ ” United States v. Real Estate Boards, 339 U. S. 485, 495-496.
I conclude that the Court of Appeals was incorrect in setting aside the District Court’s findings of fact. Since those findings do not establish the existence of a stigma, the Court of Appeals erred in holding on this basis that a hearing was required.
Ill
It is possible, however, that a hearing was required because the discharge deprived respondent of a property interest. The District Court rejected the claim that he had an entitlement to his job as a matter of state law, but the Court of Appeals found it unnecessary to reach this issue. I believe there is enough merit to the property claim to justify a remand to the Court of Appeals with directions to consider it.
In Bishop v. Wood, the plaintiff’s job was “terminable at the will of either party irrespective of the quality of performance by the other party.” 426 U. S., at 345 n. 9, and accompanying text. There was no right to state judicial review. In this case, however, the state law may afford the employee some protection against arbitrary discharge. According to the state case cited by Judge Gurfein, App. 37a, the Police Commissioner may terminate only “unsatisfactory employee[s],”
The Court indicates, ante, at 625 n. 1, that its holding is premised on the form of relief sought. If falsity were a precondition to the existence of a constitutional violation, the form of relief would be irrelevant. For to grant any relief, the federal court would first have to determine that a violation had occurred, which would in turn require a finding of falsity. I recognize that there is authority for the view that falsity is an element of the violation. See Sims v. Fox, 505 F. 2d 857, 863-864 (CA5 1974) (en banc), cert. denied, 421 U. S. 1011. Cf. Paul v. Davis, 424 U. S. 693, 709-710 (describing Board of Regents v. Roth, 408 U. S. 564, as involving government “defamation”).
“When we deny even the most degraded person the rudiments of a fair trial, we endanger the liberties of everyone. We set a pattern of conduct that is dangerously expansive and is adaptable to the needs of any majority bent on suppressing opposition or dissension.
“It is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law.” Anti-Fascist Committee v. McGrath, 341 U. S. 123, 179 (Douglas, J., concurring).
As I read Part II of Roth, supra, at 572-575, which discusses the kind of “liberty” that is protected by the Due Process Clause of the Fourteenth Amendment, there are two quite different interests which may be implicated when a nontenured employee is discharged. First, the Court, 408 U. S., at 573, considers the individual’s interest in “ ‘good name, reputation, honor, or integrity.’ ” It is with respect to this reputational interest that the Court indicates, id., at 573 n. 12, that a name-clearing hearing is constitutionally required. That footnote does not tell us whether that hearing must precede the injury to reputation, and surely does not imply that such a hearing is the only remedy available to an employee whose constitutional right to due process has been violated.
Second, in the ensuing paragraphs, the Roth opinion considers the individual interest in avoiding “a stigma or other disability” that forecloses employment opportunities. With respect to this interest, the Court rather clearly indicates, id., at 574, that no such stigma may be imposed without a “full prior hearing.”
Similarly, since disclosure of the charges is also part of the deprivation of liberty, Bishop v. Wood, 426 U. S. 341, 348, the hearing could properly include the issue whether the charges should remain confidential, or whether the written record should at least be modified to reflect a less one-sided description of the events.
The Court states, ante, at 627:
"Where the liberty interest involved is that of conditional freedom following parole, we have said that the hearing required by the Due Process Clause in order to revoke parole must address two separate considerations. The first is whether the parolee in fact committed the violation with which he is charged, and the second is whether if he did commit the act his parole should, under all the circumstances, therefore be revoked. Morrissey v. Brewer, 408 U. S. 471, 479-480 (1972); Gagnon v. Scarpelli, 411 U. S. 778, 784 (1973). The fact that there was no dispute with respect to the commission of the act would not necessarily obviate the need for a hearing on the issue of whether the commission of the act warranted the revocation of parole.”
This reasoning is equally applicable to a decision to revoke a person’s employment for a stigmatizing reason. The fact that there is no dispute with respect to the commission of the act involved does not necessarily obviate the need for a hearing on the issue of whether employment should be terminated.
The Court states, ibid., that “the hearing required where a nontenured employee has been stigmatized in the course of a decision to terminate his
The Court’s contrary approach would produce perverse results when the relief sought by the plaintiff includes an administrative hearing. To establish his right to such relief, the plaintiff would have to plead — and presumably prove — that the charges against him are false. But once it is established that the charges are false, there is no longer any reason to hold an administrative hearing on that subject.
This problem is squarely presented by this case because respondent did request such a hearing. At trial, respondent’s counsel made the following statement:
“And therefore, he should be reinstated and he should be given a full hearing, an adversary hearing.” App. 93a.
Under modem trial practice, no more formal request was necessary. The amended complaint had requested a declaratory judgment that “the action of defendants in terminating plaintiff’s employment without charges and without a hearing [was] in violation of the Constitution . . . ,” and had sought “such additional alternative relief as may seem to this Court to be just, proper and equitable.” Id., at 55a-56a. And, of course, Fed. Rule Civ. Proc. 54 (c) provides that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”
See Judge Tone’s thoughtful discussion of this problem in Hostrop v. Board of Junior College Dist. 515, 523 F. 2d 569, 578-580 (CA7 1975).
The general principle governing review of a District Court’s findings of fact is clear:
“In applying the clearly erroneous standard to the findings of a dis*637 trict court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. The authority of an appellate court, when reviewing the findings of a judge as well as those of a jury, is circumscribed by the deference it must give to decisions of the trier of the fact, who is usually in a superior position to appraise and weigh the evidence. The question for the appellate court under Rule 52 (a) is not whether- it would have made the findings the trial court did, but whether ‘on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948).” Zenith Corp. v. Hazeltine, 395 U. S. 100, 123.
The Court of Appeals found “every indication” that respondent would have obtained a job except for the contents of his file. Velger v. Cawley, 525 F. 2d 334, 335 (CA2 1975). Apart from the one instance of disclosure found by the District Court, this conclusion seems to have been based on an incident in which respondent was told he would be hired if his character investigation was satisfactory, and on the fact that he had passed numerous civil service examinations and received several job interviews but no jobs. The incident referred to by the Court of Appeals proves nothing about the effect of the contents of the file, since respondent testified that he refused to give that employer permission to inspect the file. App. 81a. The fact that respondent was unsuccessful in obtaining a job, despite numerous attempts, good examination scores, and several interviews, does not prove that he was stigmatized by information in his file since the District Court found that those employers had not had access to the file. Entirely apart from the file, there may have been
Roth recognizes two types of stigma. See n. 3, supra. First, the State’s action “might seriously damage [the employee’s] standing and associations in his community.” 408 U. S., at 573. The release of information to a single employer at the employee’s request can hardly be considered an injury to the employee’s community standing. Second, the State’s action might have the effect of “foréelos [ing] his freedom to take advantage of other employment opportunities.” Ibid. It is not enough, however, to make him “somewhat less attractive to some other employers,” for that “would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of ‘liberty.’ ” Id., at 574 n. 13. The fact that one employer considered the information a bar to employment does not necessarily mean that most other employers would have the same reaction. In short, on the basis of the entire record the District Court could find that this single incident of disclosure and its aftermath do not establish a sufficiently grievous harm to reputation to constitute a deprivation of liberty.
The District Court did find that a private employer who inspected the file had “gleaned” from the file that this was the reason for the discharge.
In Arnett v. Kennedy, 416 U. S. 134, the employee could be discharged only for “ 'such cause as will promote the efficiency of [the] serv
In In re Going v. Kennedy, the Appellate Division noted that the appointing officer had been delegated the authority to terminate “unsatisfactory employee [s],” and compared the probation period to an additional employment test designed to determine whether an employee is “able to meet all requirements or expectations in filling the position.” 5 App. Div. 2d, at 178, 170 N. Y. S. 2d, at 239. The New York Court of Appeals, citing Going with approval, applied the “arbitrary and capricious” standard in Tálamo to determine whether there was a “rational basis” for the police commissioner’s decision to discharge a probationary police officer. 38 N. Y. 2d, at 639, 345 N. E. 2d, at 547. See also In re Farrell v. New York City Police Dept., 44 App. Div. 2d 782, 355 N. Y. S. 2d 99 (1974), aff’d, 37 N. Y. 2d 843, 340 N. E. 2d 469 (1975).
Cf. Perry v. Sindermann, 408 U. S. 593, 601:
“A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.”
Even if respondent’s entitlement is a sufficient property interest to trigger due process, he is not necessarily entitled to an elaborate adversary hearing. “Once it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U. S. 471, 481: But at least respondent would be entitled to notice of the charge against him and an opportunity to respond, if only in writing.
Respondent did not abandon that claim in this Court. The portion of his brief cited by the majority, ante, at 628 n. 2, concerns the issue whether state law itself requires a hearing, see Brief for Respondent 14; this is an entirely different issue than whether state law creates a sufficient entitlement to trigger a federal right to a hearing. To preserve his right to a remand, the party prevailing below need not argue the merits of claims the lower court failed to reach. See generally Dandridge v. Williams, 397 U. S. 471, 475-476, n. 6.
Concurring Opinion
concurring.
I join the Court’s per curiam opinion, but I emphasize that in this case there is no suggestion that the information in the file, if true, was not information of a kind that appropriately might be disclosed to prospective employers. We therefore are not presented with a question as to the limits, if any, on the disclosure of prejudicial, but irrelevant, accurate information.
Reference
- Full Case Name
- CODD, POLICE COMMISSIONER, CITY OF NEW YORK, Et Al. v. VELGER
- Cited By
- 901 cases
- Status
- Published