Pollock v. Baxter Manor Nursing Home

• Decision Date: 13 September 1983
• Docket Number: No. 82-1584,82-1584
• Citation: 706 F.2d 236
• Parties: Loraine POLLOCK, Appellant, v. BAXTER MANOR NURSING HOME, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 236

706 F.2d 236

Loraine POLLOCK, Appellant, v. BAXTER MANOR NURSING HOME, Appellee.

No. 82-1584.

United States Court of Appeals, Eighth Circuit.

Submitted Jan. 14, 1983.

Decided April 27, 1983.

Rehearing and Rehearing En Banc Denied Sept. 13, 1983.

John L. Burnett, Lavey & Harmon, Little Rock, Ark., for appellant.

G. Ross Smith, P.A., Little Rock, Ark., for appellee.

Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

PER CURIAM.

Loraine Pollock instituted this action against Baxter Manor Nursing Home alleging that the nursing home deprived her of procedural due process of law by discharging her from employment under stigmatizing conditions without according her prior notice or a hearing. The nursing home denied that any constitutionally protected "liberty" interest was implicated in Pollock's termination and also alleged, in the alternative, that if a "liberty" interest was involved, Pollock was afforded the protections guaranteed by the fourteenth amendment.

The district court, the Honorable H. Franklin Waters, found that Pollock was not entitled to judgment and accordingly dismissed her complaint.

We have carefully studied the record, including the district court's opinion, the briefs and the arguments of the parties to this action. We find no merit to appellant's arguments and accordingly affirm solely on the basis of Judge Waters' third conclusion of law, which stated:

3. Before a "liberty" interest is implicated, in employee-discharge cases however, there must be publication of the reasons for termination, the publication must occur at the hands of the governmental employer, the charges must be defamatory, and the charges must be false. Buhr v. Buffalo Public School Dist., 509 F.2d 1196 (8th Cir.1974); Cato v. Collins, 539 F.2d 656 (8th Cir.1976); Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977); Seal v. Pryor, 670 F.2d 96 (8th Cir.1982).

Pollock v. Baxter Manor Nursing Home, 536 F.Supp. 673, 680 (W.D.Ark.1982). We agree that under the facts of this case, Pollock could not prevail because a liberty interest does not arise unless an employer disseminates a false and defamatory statement. The district court specifically found that the nursing home's statements to Pollock's prospective employer were true and we do not believe that such a finding was error. Thus, Pollock suffered no infringement of any liberty interest by the nursing home. The judgment of the district court is affirmed.

McMILLIAN, Circuit Judge, dissenting.

I respectfully dissent.

The facts of this case are relatively simple. Pollock once worked for a county-owned nursing home. She was fired by the home for allegedly clocking her daughter's time card in and out when her daughter had not reported for work that day. Pollock received an exit interview when she was fired. Subsequently Pollock and her counsel met with the home's counsel to discuss a possible out-of-court settlement of Pollock's claim that she was falsely accused and should be reinstated. The home's counsel refused to recommend to the home's Board of Governors that she be reinstated. The Board affirmed her dismissal. About a year later Pollock applied for a position at a privately-owned nursing home.

In the process of applying for the new position, she signed an authorization for her former employers to release information about her prior job performance. The privately-owned nursing home presented the authorization form to the county-owned nursing home. The county-owned nursing home then provided the information that Pollock had been "terminated for clocking her daughters in and out on time clock when they weren't working." Pollock then sued the county-owned home for depriving her of liberty without due process of law. The district court found Pollock had indeed clocked her daughter's time card fraudulently. The court concluded that because the allegations against Pollock were true, she was not deprived of her liberty interest in her reputation. This appeal ensued.

The majority's opinion holds that before a discharged public employee is entitled to a hearing to refute stigmatizing information published in conjunction with her discharge, she must first successfully refute the stigmatizing information. I cannot agree.

I. The Role of Due Process

The fundamental purpose of procedural due process is to ensure fairness in the manner in which government exercises its power. See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 161, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). First, by requiring the government to give an individual an opportunity to be heard before being deprived of life, liberty, or property, due process promotes the form or appearance of justice. Its salutory effect is to establish the ideal that society is ruled by law and not by the caprice of the men and women in power. It also reinforces respect for the inherent dignity and worth of the individual. Secondly, due process protects against error based upon in accurate or incomplete information by requiring the government to comport with regularized procedures that are subject to judicial review. See Saphire, Specifying Due Process Values: Toward a More Responsive Approach to Procedural Protection, 127 U.Pa.L.Rev. 111, 119-21 (1978). In short, procedural due process is meant to keep the government objective and honest in its dealings with individuals.

Requiring a discharged public employee to prove that the stigmatizing informaiton is false before a right to a hearing is established will provide a great disincentive for the government to conduct any termination hearings. The practical difficulties a public employee encounters in haling the government into court and bearing the burden of proving the falsity of the government's charges may be overwhelming. If a governmental entity, or its agents, are to be liable only when the discharged public employee surmounts these barriers, the governmental entity is likely to take the position: "Well, if you think I am wrong, sue me and prove it." Thus, instead of holding a hearing whenever the government stigmatizes an employee in the course of terminating his or her employment, the government would only have to conduct a hearing when the injured employee takes the substantial initiative of suing the government. This would be an anathema to the whole ideal of fair play embodied in the due process clauses. The absence of fair pre-termination hearings when important liberty interests are at stake also destroys the appearance of justice and increases the risk of error. As the Tenth Circuit recently noted in holding that a stigmatized public employee need not prove falsity to establish a right to a due process hearing: "Just as we provide criminal trials to the guilty as well as to the innocent, we provide opportunities to rebut serious charges to those who will fail as well as to those who will prevail." McGhee v. Draper, 639 F.2d 639, 643 (10th Cir.1981).

II. Falsity and Caselaw

The district court's decision below relied principally upon the Supreme Court's holding in, and several lower courts' interpretation of, Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977) (per curiam). I believe that the district court and the majority have misread the holding of Codd. I read Codd as holding that a publicly stigmatized employee who has been dismissed need only allege falsity or deny the substantial truth of the historical facts underlying the stigmatizing information in order to establish a right to a hearing.

To understand the Codd decision, one must first understand that there is a marked difference between proving consequential damages caused by that deprivation. In Carey v. Phiphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 1053-57, 55 L.Ed.2d 252 (1978), the Supreme Court held that damages for deprivations of constitutional rights cannot be inferred. All damages, except nominal damages, must be proved separately from the fact that the deprivation has occurred. But, by the same token, Carey also stands for the proposition that a plaintiff may recover nominal damages for the constitutional deprivation in and of itself. In the context of a public employee discharge case, Carey requires a discharged public employee who is seeking reinstatement or backpay to prove that she would not have been discharged if she had been given a due process hearing. Ordinarily, this would require proving that the stigmatizing information is false. Yet, as Pollock points out in her brief, her failure of proof on the matter of consequential damages has nothing to do with establishing that her right to due process has been breached. The deprivation, and the nature of the damages that flow from the deprivation, must be considered as separate and distinct elements of a procedural due process cause of action. See Bishop v. Tice, 622 F.2d 349, 357-58 & n. 17 (8th Cir.1980).

In Codd, the plaintiff was a policeman for the Penn-Central Railroad who at one time had been a police officer trainee for the City of New York. Penn-Central dismissed the plaintiff when the City of New York released information to Penn-Central concerning an incident in which the plaintiff "had put a revolver to his head in an apparent suicide attempt." 429 U.S. at 626, 97 S.Ct. at 883. ¹ The plaintiff never denied the truth of this information. After he was fired, the plaintiff sued New York City solely for backpay and damages rather than for a hearing. Id. at 625 & n. 1, 97 S.Ct. at 883 & N. 1. In assessing the merits of the plaintiff's claim for backpay and other consequential damages caused by the alleged denial of due process, the Supreme Court said:

Assuming all of the other elements necessary to make out a claim of stigmatization under [Board of Regents v.] Roth [408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ] and Bishop [v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) ], the remedy mandated...