Olivieri v. Rodriguez

• Citation: 122 F.3d 406
• Decision Date: 15 August 1997
• Docket Number: No. 96-4069,96-4069
• Parties: 72 Empl. Prac. Dec. P 45,143, 38 Fed.R.Serv.3d 744, 13 IER Cases 186 Felix A. OLIVIERI, Plaintiff-Appellant, v. Matt L. RODRIGUEZ, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 406

122 F.3d 406

72 Empl. Prac. Dec. P 45,143, 38 Fed.R.Serv.3d 744,

13 IER Cases 186

Felix A. OLIVIERI, Plaintiff-Appellant, v. Matt L. RODRIGUEZ, Defendant-Appellee.

No. 96-4069.

United States Court of Appeals, Seventh Circuit.

Argued July 8, 1997.

Decided Aug. 15, 1997.

Kenneth N. Flaxman (argued), Chicago, IL, for Plaintiff-Appellant.

Lawrence Rosenthal, Benna R. Solomon, Susan S. Sher, Meera Werth (argued), Office of Corporation Counsel, Appeals Division, Chicago, IL, for Defendant-Appellee.

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

POSNER, Chief Judge.

A probationary Chicago police officer fired on grounds of having sexually harassed female probationers at the police training academy sued the police superintendent under 42 U.S.C. § 1983. The basis of the suit was the ex-officer's claim that firing him on such a ground has prevented him from obtaining other employment as a police officer and by doing this has curtailed his liberty of employment without due process because, being merely a probationer, he was not granted a hearing before (or for that matter after) he was fired. The district court granted summary judgment for the superintendent.

A line of cases that reaches back to Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951), establishes that although defamation by a public officer is not a constitutional tort, because the interest that it invades, the interest in reputation, is not deemed liberty or property within the meaning of the due process clauses of the Constitution, Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976); Dishnow v. School District, 77 F.3d 194, 199 (7th Cir.1996), when the character and circumstances of the defamation are such as to have "foreclose[d] his freedom to take advantage of other employment opportunities" he can bring a suit based on the deprivation of his liberty of employment or occupation. Paul v. Davis, supra, 424 U.S. at 710, 96 S.Ct. at 1164 quoting Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); see also, e.g., Bigby v. City of Chicago, 766 F.2d 1053, 1057 (7th Cir.1985); Colaizzi v. Walker, 812 F.2d 304, 307 (7th Cir.1987); Johnson v. Martin, 943 F.2d 15, 16 (7th Cir.1991). The classic case of this type, illustrated by McGrath itself, is a government blacklist, which when circulated or otherwise publicized to prospective employers effectively excludes the blacklisted individual from his occupation, much as if the government had yanked the license of an individual in an occupation that requires licensure. See Board of Regents v. Roth, supra, 408 U.S. at 573-74, 92 S.Ct. at 2707-08; Colaizzi v. Walker, supra, 812 F.2d at 307. The distinction between mere defamation and an infringement of liberty of occupation is merely one of degree, especially when the defamation relates to a person's fitness for a particular type of employment, but it is a distinction to which the courts are committed.

This case is unusual because there is no evidence that the defendant disclosed to anyone the grounds of the plaintiff's discharge. The plaintiff argues that this makes no difference to his employability because no police department will hire him without asking him why he was fired by the Chicago Police Department. If he answers truthfully, he will reveal the ground of the termination as effectively as (actually more effectively than) if the Department had taken out a full-page ad in every newspaper in the nation announcing the termination of Felix A. Olivieri for sexually harassing female probationary officers at the Chicago police training academy. This type of argument has persuaded three circuits that dissemination by the defendant in a case such as this is not required after all. Donato v. Plainview-Old Bethpage Central School District, 96 F.3d 623, 631-32 (2d Cir.1996); Brandt v. Board of Cooperative Educational Services, 820 F.2d 41, 45 (2d Cir.1987); Ledford v. Delancey, 612 F.2d 883, 886-87 (4th Cir.1980); Buxton v. City of Plant City, 871 F.2d 1037, 1045 (11th Cir.1989). Our court, however, insists on dissemination, e.g., Johnson v. Martin, supra, 943 F.2d at 16-17 (explicitly rejecting Brandt); Ratliff v. City of Milwaukee, 795 F.2d 612, 627 (7th Cir.1986), as do the First and Third Circuits. See Ortega-Rosario v. Alvarado-Ortiz, 917 F.2d 71, 74-75 (1st Cir.1990); Copeland v. Philadelphia Police Dep't, 840 F.2d 1139, 1148 (3d Cir.1988). The Fifth and Eighth have hedged, Hogue v. Clinton, 791 F.2d 1318, 1322-23 n. 7 (8th Cir.1986); Burris v. Willis Independent School District, Inc., 713 F.2d 1087, 1092 (5th Cir.1983), and the others haven't addressed the issue.

We are not disposed to depart from our position in this intercircuit conflict, and not only because stare decisis has its claims. The contrary position resembles the largely discredited doctrine of "compelled republication" or (more vividly) "self-defamation," which allows the victim of a defamation to satisfy the requirement of publication by publishing it himself, for example to prospective employers as in the present case. Rice v. Nova Biomedical Corp., 38 F.3d 909, 911-12 (7th Cir.1994); Dishnow v. School District, supra, 77 F.3d at 199; Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1553-54 (10th Cir.1995). The doctrine is inconsistent with the fundamental principle of mitigation of damages. It is no doubt highly likely that the ground of Olivieri's discharge would become known to prospective employers, but it is not certain. A prospective employer might not ask him--might ask only the Chicago Police Department, which for all we know might refuse to disclose the grounds of Olivieri's discharge; many former employers refuse to answer such inquiries, because of fear of being sued for defamation. The principle of self-defamation, applied in a case such as this, would encourage Olivieri to apply for a job to every police force in the nation, in order to magnify his damages; and to blurt out to each of them the ground of his discharge in the most lurid terms, to the same end. Most states, as noted in the decisions cited above, reject self-defamation as a basis for a tort claim, and it would be odd for federal constitutional law to embrace this questionable doctrine.

A further consideration in favor of the majority position is brought to light by asking what the Chicago Police Department should have done when it decided to discharge Olivieri. His answer is that it should have granted him a hearing. This comes close to arguing that there is no such thing as probationary public employment--that no public employee can be fired without a hearing because if he is, and the ground of the discharge impugns his fitness for employment in a similar job, as it very often will, his employer will have violated his constitutional rights, no matter how secretive the employer...