Lawson v. Sheriff of Tippecanoe County, Ind.

• Decision Date: 23 January 1984
• Docket Number: No. 82-1838,82-1838
• Citation: 725 F.2d 1136
• Parties: 115 L.R.R.M. (BNA) 2663, 1 Indiv.Empl.Rts.Cas. 1753 Mary Lou LAWSON, Plaintiff-Appellant, v. SHERIFF OF TIPPECANOE COUNTY, INDIANA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1136

725 F.2d 1136

115 L.R.R.M. (BNA) 2663, 1 Indiv.Empl.Rts.Cas. 1753

Mary Lou LAWSON, Plaintiff-Appellant, v. SHERIFF OF TIPPECANOE COUNTY, INDIANA, et al., Defendants-Appellees.

No. 82-1838.

United States Court of Appeals Seventh Circuit.

Submitted Dec. 1, 1983.

Decided Jan. 23, 1984.

John M. Burgett, Lafayette, Ind., Richard L. Russell, Bayliff, Harrican, Cord, Maugans & Russell, Kokomo, Ind., for plaintiff-appellant.

Paul D. Ewan, Schultz, Ewan & Burns, Joseph T. Bumbleburg, Ball, Eggleston, Bumbleburg & McBride, Lafayette, Ind., for defendants-appellees.

Before CUMMINGS, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff brought this civil rights suit under 42 U.S.C. Sec. 1983 against a sheriff in Indiana, and others, alleging that she had been deprived of liberty and property, without due process of law, because the sheriff fired her from her job as a police radio dispatcher. Her husband had just been arrested for alleged participation in an interstate automobile theft ring, and in firing her the sheriff made statements that were printed in the local newspapers to the effect that she had been fired because her job gave her access to the computer that contained automobile registration information, and she might have tampered with the computer. The district judge dismissed her complaint on the basis of an affidavit, accompanying the defendants' motion for summary judgment, which stated that a few days after having been fired she was offered and declined alternative employment by the county, 537 F.Supp. 918.

Mrs. Lawson was an employee at will, and thus lacked a "property" interest (within the meaning of the due process clause of the Fourteenth Amendment) of which the sheriff could have deprived her when he fired her. Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972). And while she may have been defamed by the statements that the sheriff made in explanation of why he had fired her, the interest that is invaded by defamation, like the interest in employment at will, is not "property" or "liberty" within the meaning of the due process clause. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Elbert v. Board of Educ., 630 F.2d 509, 512-14 (7th Cir.1980). These holdings are based not on the dictionary meanings of the words in the due process clause but on a practical desire to prevent section 1983, the federal civil rights tort remedy, from swallowing up the entire common law of public officers' torts.

But the courts have found a deprivation of liberty when the employee was fired for a publicly announced reason that impugned his moral character. See, e.g., Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977) (per curiam); Hadley v. County of DuPage, 715 F.2d 1238, 1245-47 (7th Cir.1983); Colaizzi v. Walker, 542 F.2d 969, 973 (7th Cir.1976). The concept of liberty in Fourteenth Amendment jurisprudence has long included the liberty to follow a trade, profession, or other calling. This liberty must not be confused with the right to a job; states have no constitutional duty to be employers of last resort; but if a state excludes a person from a trade or calling, it is depriving him of liberty, which it may not do without due process of law. See, e.g., Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915); Schware v. Board of Bar Examiners, 353 U.S. 232, 238, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957); Lipp v. Board of Educ., 470 F.2d 802, 805 (7th Cir.1972). And when a state fires an employee for stated reasons likely to make him all but unemployable in the future, by marking him as one who lost his job because of dishonesty or other job-related moral turpitude, the consequences are so nearly those of formally excluding him from his occupation that the law treats the state's action the same way, and insists that due process be provided.

But this also implies, and the cases make clear, that there is no deprivation of liberty if the employee is not fired. See Paul v. Davis, supra, 424 U.S. at 710, 96 S.Ct. at 1165; Moore v. Otero, 557 F.2d 435, 438 (5th Cir.1977). He cannot in such a case complain of exclusion from his occupation. This was the ground on which the district court dismissed Mrs. Lawson's complaint. She was fired; but if ...