Blank v. Swan

• Decision Date: 25 March 1980
• Docket Number: No. 78 C 849.,78 C 849.
• Citation: 487 F. Supp. 452
• Parties: Philomena BLANK, Plaintiffs, v. Donald G. SWAN; Barry Sherman; Daniel W. Burke; Arthur Fournier; Ronald Lundin; and York Township, Defendants.
• Court: U.S. District Court — Northern District of Illinois

487 F. Supp. 452

Philomena BLANK, Plaintiffs, v. Donald G. SWAN; Barry Sherman; Daniel W. Burke; Arthur Fournier; Ronald Lundin; and York Township, Defendants.

No. 78 C 849.

United States District Court, N. D. Illinois, E. D.

March 25, 1980.

George F. Galland, Jr., Davis, Miner & Barnhill, Chicago, Ill., for plaintiffs.

Larry M. Karlin, George W. McGurn, Michael McGurn, Harry G. Fins, Chicago, Ill., Barry E. Garley, Villa Park, Ill., for defendants.

MEMORANDUM OPINION

FLAUM, District Judge:

This matter comes before the court upon defendants' Motion for Summary Judgment. For the reasons set forth below, the Motion is denied.

Plaintiff, Philomena Blank (Blank) was hired by defendant Donald G. Swan (Swan) as an employee of defendant York Township (York) on March 15, 1970.¹ In 1973 Swan made her chief welfare caseworker and office manager. Swan, who remained her supervisor, gave Malci Agnic (Agnic) a job in their office in March 1976. On April 21, 1976, Swan sent Blank a letter which reads as follows:

Dear Mrs. Blank,

I am attaching a photostatic copy of a felony, which is known as intimidation. Effective Friday, April 22, 1977, I am suspending you as an employee of York Township.

Your case will be reviewed if you will secure competent professional help.

Upon a review of a medical report concerning your physical and emotional well being a final decision will be made concerning your employment.

Yours very truly York Township Don Swan Supervisor, York Township.

There is evidence that Swan publicized the charges that Blank was emotionally or mentally disturbed and that she had tried to blackmail him both before and after he sent Blank this letter.

Blank informally requested a hearing before the York Township Board of Trustees, but received none. She never requested a hearing before Swan. Since her suspension² became effective, Blank has received no further salary from York, no payments have been made on her behalf to the municipal retirement fund, and she has neither received nor been eligible for any benefits associated with employment with York.

After looking for a job for over a year, Blank obtained a clerical job with the Veterans Administration in Hines, Illinois. She held this position from September, 1978, until later in the year, when she moved to New York with her husband.

In Count I of her two-count Complaint, Blank alleges that defendants' actions during the course of this episode violated her rights under the Fourteenth Amendment to the Constitution of the United States. In Count II she seeks recovery from Swan for libel and slander under Illinois law.

The Fourteenth Amendment guarantees that no State shall "deprive any person of life, liberty, or property, without due process of law". Blank contends that defendants have unconstitutionally deprived her of a liberty interest by defaming her in connection with the change in her employment status.³

In Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Supreme Court announced that a constitutionally protected liberty interest of a teacher whose employment contract was not renewed by the State might be implicated if said non-renewal was based on a charge against him that "might seriously damage his standing and associations in his community," 408 U.S. at 573, 92 S.Ct. at 2707, or if "the State, in declining to reemploy him, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities." Id. Thus, the court acknowledged that

"the concept of liberty recognizes two particular interests of a public employee:

1) the protection of his good name, reputation, honor and integrity, and 2) his freedom to take advantage of other employment opportunities." Lipp v. Board of Education of City of Chicago, 470 F.2d 802, 805 (7th Cir. 1972).

Paige v. Harris, 584 F.2d 178 (7th Cir. 1978).

The scope of the protected liberty interests identified in Roth was subsequently narrowed by the Supreme Court in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). See Webster v. Redmond, 599 F.2d 793, 797 (7th Cir. 1979), cert. denied, ___ U.S. ___, 100 S.Ct. 712, 62 L.Ed.2d 674 (1980); Paige v. Harris, 584 F.2d 178 (7th Cir. 1978). The Seventh Circuit Court of Appeals recently considered the import of Davis in Larry v. Lawler, 605 F.2d 954 (7th Cir. 1978), wherein it noted that

Davis held that a liberty interest is not implicated when the only injury suffered as the result of government action is a stigma or damage to reputation.

While we have in a number of prior cases pointed out the frequently drastic effect of the "stigma" which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either "liberty" or "property" by itself sufficient to invoke the procedural protection of the Due Process Clause. 424 U.S. at 701, 96 S.Ct. at 1160. (Emphasis added).

605 F.2d at 958.

As this court observed in Danno v. Peterson, 421 F.Supp. 950 (N.D.Ill.1976), this Circuit has interpreted Davis as formulating, in the employment context, a "stigma plus" analysis. Thus, in Colaizzi v. Walker, 542 F.2d 969 (7th Cir. 1976), cert. denied, 430 U.S. 960, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977), the court held that a liberty interest would be implicated where the State inflicted a stigma in conjunction with a failure to rehire or a discharge. And in Larry, the plaintiff was found to have a liberty interest at stake in a situation where a stigma was placed on him in connection with the rejection of his application for government employment, the effect of which was to totally debar him from all federal employment for up to three years.⁴

However, this court ruled in Danno that not every State-ordered alteration in an employee's employment status constitutes a sufficient "plus" to mandate the conclusion that that action, when accompanied by the State-inflicted stigmatization or defamation of the effected employee, implicates a liberty interest of the employee. More specifically, Danno holds that a school board's defamation of the plaintiff in conjunction with its determination to relieve him of his duties as principal and reassign him to a regular teaching position did not implicate the plaintiff's liberty interests.

Defendants here argue that Blank, who complains that she was summarily suspended on account of and defamed by defendants' false charge that she was mentally ill and attempting to blackmail Swan,⁵ suffered no deprivation of a liberty interest because suspension is not the type of "plus" that will satisfy the test of Davis. They seize upon the statement in that case that

it was not thought sufficient in Roth to establish a claim under § 1983 and the Fourteenth Amendment that there simply be a defamation by a state official; the defamation had to occur in the course of the termination of employment,

424 U.S. at 711, 96 S.Ct. at 1165, as a manifestation of the Court's belief that a Roth-type liberty interest will only be recognized where there is an allegation of defamation plus termination or non-renewal of employment.

The holding of the Court of Appeals in Larry refutes this argument with regard to the second prong of the concept of liberty identified in Roth and the reasoning underlying that decision applies equally in the context of the other aspect of liberty discussed in Roth. The significant language in Davis is that quoted in Larry and reproduced above. The passage relied on by defendants was a reference to the facts of the Roth case. Roth was suing the Board of Regents because they failed to renew his teaching contract. In the portion of the Roth opinion that was being interpreted by the Davis Court when it made the statement upon which defendants rely, the Roth Court merely observed that Roth might have stated a cause of action for deprivation of liberty if he had alleged that the non-renewal of his contract was accompanied by the directing of a defamatory accusation against him.

However, the court's rejection of the extreme position urged by defendants does not resolve the question of whether an indefinite suspension without pay is the type of "plus" that will suffice to allow a finding that a liberty interest exists. It is to that question that the court will now direct its attention.⁶

Defendants have cited no cases holding that this type of change is employment status in an insufficient "plus", and this court has found none. To the contrary, the court's researches have revealed that every court to decide this issue since Davis has found that suspension without pay does satisfy the "plus" requirement of the "stigma plus" test. See Victor v. Brickley, 476 F.Supp. 888 (E.D.Mich.1979); Doe v. Anker, 451 F.Supp. 241 (S.D.N.Y.1978); Allison v. City of Live Oak, 450 F.Supp. 200 (M.D.Fla. 1978); Bagby v. Beal, 439 F.Supp. 1257 (M.D.Pa.1977); Faulkner v. North Carolina Department of Corrections, 428 F.Supp. 100 (W.D.N.Car.1977).⁷ These decisions are supported by the reasoning found in numerous other opinions. See e. g., Ventetuolo v. Burke, 470 F.Supp. 887, 896-897 n.7 (D.R.I. 1978); Virgin Islands v. Anderson, 434 F.Supp. 1204 (D.V.I.1977); De Bono v. Vizas, 427 F.Supp. 905 (D.Col.1977). Finally, they are consistent with this court's holding in Danno. That decision was premised on the court's finding that because the plaintiff was still employed by the school system, he "did not have to seek further employment and the alleged stigma was minimized by his continued employment." 421 F.Supp. at 954. Blank, on the other hand, was indefinitely suspended without pay. Thus, she did not have the luxury of merely "wishing to seek other employment opportunities". Id. (emphasis added).⁸ Therefore, the court concludes that Blank's suspension was a sufficient "plus" to allow the court to find that her liberty...