Lodico v. United States

• Decision Date: 03 December 1982
• Docket Number: Civ. No. 77-72265.
• Citation: 571 F. Supp. 21
• Parties: Norma Jean LODICO, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

571 F. Supp. 21

Norma Jean LODICO, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Civ. No. 77-72265.

United States District Court, E.D. Michigan, S.D.

December 3, 1982.

Ronald Reosti, Detroit, Mich., for plaintiff.

Karl Overman, Asst. U.S. Atty., Detroit, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

PHILIP PRATT, District Judge.

Plaintiff has brought this action against the United States, the Veterans Hospital of Allen Park, Michigan, the Veterans Administration, the Department of Interior, R. Eugene Konik, Claire Tedesco, Mansell G. Piper, Signe Larson, and Robert Smoak. She claims that she was denied employment by the Allen Park Veterans Hospital because of her political beliefs and activities. The five individual defendants earlier moved for summary judgment, claiming that they were immune from suit because they were merely performing their official duties and were doing so in good faith. This Court denied their motion in a Memorandum Opinion and Order on April 2, 1982. These defendants have now filed another motion for summary judgment, claiming that Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), has significantly changed the law of qualified immunity and requires that this Court reconsider its earlier order.¹ The Court agrees. For the following reasons, summary judgment is hereby granted in favor of defendants Tedesco, Piper, Larson, and Smoak. As to defendant Konik, however, summary judgment is hereby denied.

Many of the facts involved in this action are not disputed. Plaintiff was a reference librarian for the Department of the Interior from January, 1973 until January, 1976. In July, 1976 she applied for a position as Chief of the Library Service at the Allen Park Veterans Hospital. Her application was submitted to Konik, who was Assistant to the Chief of Staff at the hospital.

Larson was plaintiff's former supervisor at the Department of the Interior. Because plaintiff had listed Larson as a reference on her application, Konik contacted Larson seeking a recommendation. Larson stated that plaintiff's performance had been satisfactory, but gave Konik neither a positive nor a negative recommendation. She referred Konik to three other persons who she believed would have additional employment records in regard to plaintiff.

Smoak was one of these three persons. He was Chief of the Division of Records and Protective Service at the Department of the Interior. Konik contacted Smoak to learn more about plaintiff's employment history. Smoak informed Konik that plaintiff's records had been transferred to the Civil Service Commission when she left her job at the Department of the Interior. Smoak recommended that Konik call the Civil Service Commission to obtain these records.

Konik then contacted Tedesco, who was the Librarian at the Veterans Administration Central Office. He asked her to review plaintiff's Civil Service file, and she agreed to arrange for such a review. Tedesco then tried to obtain plaintiff's Civil Service file. She was told, however, that this was a confidential file and could be reviewed only by someone in the office of the Chief Medical Director, Department of Medicine and Surgery. She was further told that such a review would be arranged.

Piper was Executive Assistant to the Chief Medical Director at the Department of Medicine and Surgery, and he was the person who reviewed plaintiff's Civil Service file. After reviewing the file, he called Tedesco and asked her to instruct Konik that he should continue to accept applications until he was confident that he had selected the best qualified applicant available.

Tedesco conveyed this message to Konik. On August 17, 1976, Konik informed plaintiff that the search committee at the Allen Park Veterans Hospital, of which he was a member, had denied plaintiff's application for employment and had hired another applicant for the position.

Plaintiff then filed this action. She claims that the Civil Service file reviewed by Piper contains information relating to her lawful political activities and associations. She further claims that each of the individual defendants knew of these political activities, and that she was denied employment because of them. She seeks an injunction requiring that the defendant agencies remove all references to her lawful political activities from her personnel files, and requiring that the Allen Park Veterans Hospital offer her the same or a similar position. She also seeks to recover actual and punitive damages from all defendants, including these five individuals.

At issue on this motion for summary judgment is the individual defendants' claim that they possess a qualified immunity which prevents plaintiff from maintaining suit against them. It is well established that federal government officials are entitled to some form or degree of immunity from suits for damages. Legislators, judges, and certain Executive Branch officials are absolutely immune from suit. Butz v. Economou, 438 U.S. 478, 508-512, 98 S.Ct. 2894, 2911-2914, 57 L.Ed.2d 895 (1978). Other officials, like defendants, are entitled to a qualified immunity from suit. Before Harlow, supra, it had been held that such a government official could be held liable for damages only if he "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the (plaintiff), or if he took the action with malicious intention to cause a deprivation of constitutional rights or other injury ..." Harlow, 102 S.Ct. at 2737, quoting Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975) (original emphasis). Accordingly, this Court earlier denied defendants' motion for summary judgment. It found that there was a factual dispute as to whether defendants had acted in good faith, and that summary judgment was therefore inappropriate.

After Harlow, however, it no longer matters whether defendants acted in good faith. In Harlow, the Court held that presidential aides are entitled only to a qualified immunity. It then expanded somewhat the scope of the qualified immunity. The Court noted that there had previously been a subjective element to the defense of qualified immunity. It found that the litigation of an official's subjective good faith was often incompatible with its admonition in Butz, supra, that insubstantial claims against government officials should not proceed to trial. The Court concluded that:

bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

102 S.Ct. at 2738.

Accordingly, these individual defendants are now immune from liability unless their actions violated "clearly established" constitutional rights. The Court must therefore first determine what plaintiff's "clearly established" constitutional rights were at the time these events occurred.²

The leading case in this regard is Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Sindermann was a teacher in a state college system. After he had become president of a state college teachers association and disagreed publicly with the policies of the college's Board of Regents, the Board voted not to renew his teaching contract. Sindermann then brought suit against the Board, claiming that the Board's decision was based on his public criticism of their policies.

The Board contended that because Sindermann had no contractual right to re-employment, he could not challenge his dismissal. The Court rejected this argument, stating:

Even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which (it) could not command directly." Speiser v. Randall, 357 U.S. 513, 526 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. Such interference with constitutional rights is impermissible.

408 U.S. at 597, 92 S.Ct. at 2697.

Accordingly, it was "clearly established" in 1976 that plaintiff had a constitutional right not to be denied a job because of her prior conduct which was protected by the First Amendment.³ However, it was unclear in 1976 exactly what sort of adverse governmental action would be deemed to deny a person a "valuable governmental benefit". Indeed, the very definition of a "valuable governmental benefit" remains unclear today. It is clear that the denial of a job is the denial of a valuable governmental benefit. It is clear today that even lesser deprivations have been held to deny a person a valuable governmental benefit. In Acanfora v. Board of Education, 491 F.2d 498 (4th Cir.1974), cert. denied, 419 U.S. 836, 95 S.Ct. 64, 42 L.Ed.2d 63 (1974), for example, the Court held that a school board could not transfer a person from a teaching position to an administrative position because of his exercise of his First Amendment rights. Similarly, in Bernasconi v. Tempe Elementary School District, 548 F.2d 857 (9th Cir.1977), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 82 (1977), the Court held that a teacher could not be transferred from one school to another because she had criticized the school district's...