Hedge v. County of Tippecanoe

• Decision Date: 17 November 1989
• Docket Number: No. 88-2630,88-2630
• Citation: 890 F.2d 4
• Parties: 52 Empl. Prac. Dec. P 39,493, 4 Indiv.Empl.Rts.Cas. 1687 Theresa J. HEDGE, Plaintiff-Appellant, v. COUNTY OF TIPPECANOE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 4

890 F.2d 4

52 Empl. Prac. Dec. P 39,493,

4 Indiv.Empl.Rts.Cas. 1687

Theresa J. HEDGE, Plaintiff-Appellant, v. COUNTY OF TIPPECANOE, et al., Defendants-Appellees.

No. 88-2630.

United States Court of Appeals, Seventh Circuit.

Argued April 18, 1989.

Decided Nov. 17, 1989.

Edward Chosnek, Pearlman & Chosnek, Lafayette, Ind., for plaintiff-appellant.

James A. Gothard, Lawrence B. O'Connell, Gothard, Poelstra & O'Connell, Lafayette, Ind., William W. Kurnik, Kurnik, Cipolla, Stephenson, Barasha & O'Dell, Arlington Heights, Ill., for defendants-appellees.

Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

Theresa Hedge appeals from an entry of summary judgment in favor of the defendants, County of Tippecanoe, former Tippecanoe County Sheriff, Edgar B. Harger and Kevin Gibson, in an action for damages Hedge brought under 42 U.S.C. Sec. 1983. Hedge alleged that questions defendants asked of her during a pre-employment polygraph examination violated her right to privacy under the United States Constitution. We affirm in part, reverse in part, and remand in part.

I

In February 1986, while employed as a jail officer for the Tippecanoe County Police Department, Theresa Hedge applied for the position of police officer. As part of the hiring procedure for new police officers, Tippecanoe County's former Sheriff, Edgar Harger and other departmental officials established a requirement that applicants submit to a polygraph examination. The County was interested in probing the areas of truthfulness, theft, drugs and homosexuality.

Hedge underwent a pre-employment polygraph examination on March 11, 1986, ¹ administered by Kevin Gibson, an employee of the Lafayette, Indiana Police Department. ² As part of a preliminary examination given before the polygraph was used, Hedge was asked a variety of questions including whether she had smoked marijuana, whether she had been a crime victim, whether she had been arrested for or convicted of a crime and whether she drank alcohol. During this portion of the examination Gibson also asked Hedge whether she ever had a homosexual experience, engaged in abnormal sex or carried on an affair with a married man. Gibson then asked Hedge for the names of the men with whom she had been sexually involved. Hedge stated that she did not want to identify them. Gibson replied that he would not and could not use the information concerning the identity of Hedge's sexual partners against Hedge or those with whom she had been intimate. A period of silence followed after which Hedge divulged the names of the men with whom she had been involved.

Immediately after the polygraph examination, Hedge complained to Captains Chase and Worthington concerning the sexually oriented questions Gibson had posed. Later that same day she complained about these questions to Sergeant Cordell. Cordell told her that he had a feeling that this might happen as a result of rumors that Hedge was having an affair with Captain Chase and had been smoking marijuana.

Gibson prepared a report on the polygraph examination on March 11, 1986, shortly after he had administered the examination. The report noted that Hedge had smoked marijuana on two occasions. The report also stated that Hedge admitted having had relationships with at least three married men. In addition the report observed that Hedge "exhibited significant reactions indicative of deception" to questions involving telling the truth during the interview, thefts not related to work, abnormal sexual practices and attempts to withhold information from the examiner. The report concluded that "it is the opinion of the examiner that the subject did not tell the complete truth during the examination."

In a letter dated March 19, 1986, Sheriff Harger, while notifying Hedge that she would not be offered the police officer position, failed to set forth a specific reason for denying her employment. ³ In response, Hedge instituted legal action alleging that her rights under the First and Fourteenth Amendment to the United States Constitution were violated as a result of the polygraph examiner's questions relating to her sexual habits, associations and identity of her sexual partners. Following an unsuccessful motion to dismiss, Defendant Gibson's counsel moved for summary judgment on the basis of qualified immunity, asserting that the constitutional rights Hedge alleged were not clearly established at the time of Hedge's March 11, 1986, polygraph examination. Hearing on Gibson's motion was held on June 28, 1988, following which the district court instructed the parties to file memoranda on the issue of qualified immunity on or before July 18, 1988. On this date Hedge filed her memorandum opposing summary judgment, and the defendants County of Tippecanoe and Edgar B. Harger moved for summary judgment on the basis of qualifiied immunity for the first time. Slightly more than a week later, on July 26, 1988, the district court granted summary judgment to all three defendants on the basis of qualified immunity.

II

Initially we turn to the district court's determination that defendants Kevin Gibson and Edgar Harger were entitled to summary judgment in their individual capacities on the basis of qualified immunity. We have recently observed that:

"Under the doctrine of qualified immunity, public officials performing discretionary functions are protected against suits for damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). This standard requires that the 'contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.' Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Thus, while the very act in question need not have been held unlawful the unlawfulness of the official's conduct must have been apparent in light of preexisting law. Id."

Doe v. Bobbitt, 881 F.2d 510, 511 (7th Cir.1989). "[A] qualified immunity analysis entails a purely objective inquiry to determine whether, at the time of the alleged illegal act, the right asserted by the plaintiff was clearly established in the particular factual context presented." Polenz v. Parrott, 883 F.2d 551 (7th Cir.1989). This "objective analysis is less fact bound than a subjective analysis, making summary judgment a practical and effective means of terminating unnecessary litigation. The necessity of protecting government officials from the cost of trial and burdens of discovery, whenever possible, supports the increased use of summary judgment." Rakovich v. Wade, 850 F.2d 1180, 1205 (7th Cir.1988) (en banc).

"Once the defendant's actions are defined or characterized according to the specific facts of the case this characterization is compared to the body of law existing at the time of the alleged violation to determine if constitutional, statutory, or case law show that the now specifically defined actions violated the clearly established law."

Rakovich, 850 F.2d at 1209. Thus, the issue in this case is whether the constitutional right to be free from sexually related questions in pre-employment interviews Hedge asserts was clearly established at the time of her March 11, 1986, polygraph examination.

A survey of the precedent at that time reveals an absence of decisive Supreme Court or Seventh Circuit case law.

"The presence of a controlling precedent is not, however, a sine qua non of a finding that a particular right has been clearly established within the meaning of Harlow. In the absence of a controlling precedent we look to all relevant case law in an effort to determine whether at the time of the alleged acts a sufficient consensus had been reached indicating that the official's conduct was unlawful. To state the proposition in another way, we seek to determine whether there was such a clear trend in the case law that we can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time. This approach makes eminent sense for it precludes an individual from escaping liability for unlawful conduct due to the fortuity that a court in a particular jurisdiction had not yet had the opportunity to address the issue."

Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir.1989) (citation omitted).

In March 1986 the Supreme Court had recognized a "confidentiality" strand of the constitutional right to privacy protecting "the individual interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). But, the extent to which that interest protected candidates for employment in law enforcement capacities from questions regarding sexual matters was less settled. We know of only one Circuit that has dealt with this question, the Ninth Circuit, and it has determined that questions of this nature violated the individual's right to privacy. Thorne v. City of El Segundo, 726 F.2d 459, 468-72 (9th Cir.1983). That case involved a candidate for a police officer position who had been questioned in a polygraph examination...