« Walgreens: "store assignments based on race" | Main | Undocumented workers get prevailing wage »
Personnel files, reputation, and the constitution
March 16, 2007 by Ross Runkel at LawMemo
"Stigma plus" without publication is what it is called. The result: a public employer violates the due process clause by putting damaging information into a personnel file without giving the employee a name-clearing hearing.
Sciolino sued his public employer (a city), claiming a deprivation of his 14th Amendment liberty interests without due process. The trial court dismissed the case. The 4th Circuit vacated and remanded.
Sciolino v. Newport News (4th Cir 03/12/2007)
Sciolino alleged that he was deprived of his liberty interests in his reputation and ability to obtain future employment, when the employer placed damaging information in his personnel file without a name clearing hearing. The 4th Circuit concluded that Sciolino did not allege the likelihood that prospective employers or members of the public would see the damaging information, and that the trial court thus did not abuse its discretion in dismissing the complaint. The court also concluded, however, that the trial court abused its discretion when it denied Sciolino’s motion to amend his complaint to include such an allegation.
To state this type of liberty interest claim (often called a “stigma plus” claim), a plaintiff must allege that the charges against him (1) placed a stigma on his reputation; (2) were made public by the employer; (3) were made in conjunction with his termination or demotion; and (4) were false.
The issue in this case involved the second (“dissemination”) element. Sciolino argued that the mere possibility of publication is enough to satisfy this element. Not surprisingly, the employer argued that actual publication was required.
The trial court opted for a “likelihood of publication” approach. There is a split among the circuits on this issue - resulting in several different approaches. The court concluded that an employee sufficiently states the second element when he alleges that prospective employers are likely to see the stigmatizing allegations. The court noted that if actual dissemination were required, “the information would have already been communicated to a potential employer, the employee’s job opportunities foreclosed, and his reputation damaged before any possibility for a name-clearing hearing.”
My view: Seems like a candidate for US Supreme court review. An important and recurring question under the constitution, plus a solid split among the circuit courts.
EEOC | NLRB | Supreme Court | Employment Law Blog | Arbitration Blog | Employment Law 101
