Rosenstein v. City of Dallas, Tex., No. 87-1888

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation876 F.2d 392
PartiesHoward M. ROSENSTEIN, Plaintiff-Appellee, v. The CITY OF DALLAS, TEXAS, Defendant-Appellant.
Docket NumberNo. 87-1888
Decision Date28 June 1989

Sam A. Lindsay, Chandra V. Fripp, Asst. County Attys., Dallas, Tex., for defendant-appellant.

Bruce A. Pauley, Lyon & Lyon, Rowlett, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, REAVLEY and JOLLY, Circuit Judges.

REAVLEY, Circuit Judge:

This appeal challenges a judgment against the City of Dallas for violation of the plaintiff's due process rights under federal civil rights law and against Donald Milliken and the city for slander under state law. We vacate the judgment, upholding the recovery on the civil rights claim, and remand for modification of damages.

In March 1984, Amy Bradley, a Dallas police officer, received several harassing and obscene telephone calls. Bradley named the plaintiff, Howard M. Rosenstein, a fellow police officer, as the person who made the calls. An Internal Affairs Department investigation concluded that Rosenstein had made the calls, and Rosenstein was terminated from his position as a Dallas police officer. Rosenstein had been employed by the City of Dallas for less than one year and was a probationary employee at the time of his termination. Shortly thereafter, police Captain Milliken made public the charges against Rosenstein in statements to the press concerning the discharge. Rosenstein sought to challenge the decision of the police department but was denied further consideration or hearing on the ground that no appeals procedure was available to one in his status as a probationary employee.

Rosenstein denied that he made the telephone calls and brought this action in the Northern District of Texas seeking damages for violation of his constitutional rights pursuant to 42 U.S.C. Sec. 1983 and for violations of state law. Rosenstein's Sec. 1983 claim was based principally upon the city's denial of a name-clearing hearing to him. His state law claims for slander were based on the statements of Captain Milliken. After trial of the plaintiff's consolidated claims against the City of Dallas and Captain Milliken, the court entered judgment on the jury verdict in favor of Rosenstein.

The Denial of a "Name-Clearing" Hearing

It is now beyond any doubt that discharge from public employment under circumstances that put the employee's reputation, honor or integrity at stake gives rise to a liberty interest under the Fourteenth Amendment to a procedural opportunity to clear one's name. See Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976); Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971); Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 218, 97 L.Ed. 216 (1952). We have held that public officials do not act improperly in publicly disclosing charges against discharged employees, but they must thereafter afford procedural due process to the person charged. In re Selcraig, 705 F.2d 789, 798 (5th Cir.1983). Moreover, the process due such an individual is merely a hearing providing a public forum or opportunity to clear one's name, not actual review of the decision to discharge the employee. Roth, 408 U.S. at 573 n. 12, 92 S.Ct. at 2707 n. 12. If a government employer discharges an individual under circumstances that will do special harm to the individual's reputation and fails to give that individual an opportunity to clear his name, however, the individual may recover monetary damages under Sec. 1983 for the deprivation of his liberty under the Fourteenth Amendment. Owen v. City of Independence, 445 U.S. 622, 633 n. 13, 100 S.Ct. 1398, 1406 n. 13, 63 L.Ed.2d 673 (1980). To succeed on this Sec. 1983 claim for the denial of a name-clearing hearing, the employee must prove the following: that he was discharged, 1 that defamatory charges 2 were made against him in connection with the discharge, 3 that the charges were false, 4 that no meaningful public hearing was conducted pre-discharge, 5 that the charges were made public, 6 that he requested a hearing in which to clear his name, 7 and that the request was denied. 8

The city argues that the plaintiff did not request a hearing. It is undisputed, however, that Rosenstein requested access to the police department's established appeal procedure to contest the charges. On May 10, 1985, Rosenstein wrote to the Dallas City Manager that "I was fired from the Dallas Police Department for something that I did not do," and he "request[ed] an appeal from this decision." In this case where the only issue was Rosenstein's guilt or innocence of the particular charge that stigmatized him, his request to participate in established grievance, appeals, or other review procedures to contest defamatory charges was sufficient to state a request for a name-clearing hearing. A discharged employee need not use the term "name-clearing hearing." Cf. Owen, 445 U.S. at 626-29, 100 S.Ct. at 1403-04 (noting that fired police chief demanded only an appeal and was refused on the grounds that the city charter provided for no appellate procedure).

The governmental employer need not grant the discharged employee access to its established appeals procedures, but may provide an alternative procedure, or even an ad hoc hearing, solely for the purpose of allowing the employee to clear his name. An employer electing to implement a special procedure, however, must notify the discharged employee that it will give him access to the special name-clearing procedure if he chooses to take advantage of it; the state must "make known to the stigmatized employee that he may have an opportunity to clear his name upon request." In re Selcraig, 705 F.2d 789, 796 (5th Cir.1983). An employer's denial of an employee's request to appeal the employer's discharge decision, which rested on guilt of the stigmatizing charge, is a denial of a name-clearing hearing unless the employer specifically notifies the employee of the availability of an alternative procedure, which will provide the employee with a public forum to clear his name before the governing body that discharged him.

Not only did the City of Dallas fail to notify Rosenstein that he might take advantage of some alternative or ad hoc hearing procedure, city officers made it perfectly clear that he would not be allowed any procedural avenue whatsoever to clear his name. In the letter formally discharging Officer Rosenstein and informing him of the charges, Police Chief Billy Prince stated: "Because you are a probationary employee of the Dallas Police Department, my decision in this matter is final." The City's response to Rosenstein's letter to the City Manager requesting an appeal concluded the matter by stating: "[I]n accordance with the Police Code of Conduct the decision of the Chief of Police is final. You were a probationary employee and therefore ineligible for further appeal rights." We need not reach the question of whether the jury instructions adequately stated all the elements of a claim for the denial of a name-clearing hearing because as a matter of law the record establishes Rosenstein's claim.

Municipal Liability

The City of Dallas complains of the district court's refusal to instruct the jury to the effect that the city's liability for the civil rights violation depended upon Rosenstein proving that the city council had delegated policy-making authority to the officer who denied him a name-clearing hearing. That instruction was unnecessary in the state of this record. The Chief of Police testified that he set all of the policies for the police department, and the city attorney neither questioned the Chief upon that statement nor raised an issue to the contrary. The city is liable for the action of the official responsible for establishing policy with respect to the matter. Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 1300-01, 89 L.Ed.2d 452 (1986). The hearing was denied although both the Chief of Police and the City Manager were aware of Rosenstein's desire for a hearing. There was no need to prove a city policy, although it was significant in this respect that the Assistant City Manager who had supervisory responsibility for the police department testified that he did not know what was meant by "name-clearing hearing."

The Slander Cause of Action

Rosenstein also sued under state slander law for damages caused by the publication of the defamatory charges. Under Texas law municipalities are granted broad immunity from liability when performing governmental functions. Gates v. City of Dallas, 704 S.W.2d 737, 738-39 (Tex.1986). A Texas court of appeals has recently held that defamation of a police officer by city officials in the course of discharging that police officer is protected under the city's governmental immunity and, as an exercise of a governmental function, is not actionable against either the city or the officials under state slander law. City of Dallas v. Moreau, 718 S.W.2d 776, 779-80 (Tex.App.--Corpus Christi 1986, writ ref'd n.r.e.). This decision controls Rosenstein's state law claims, which must be dismissed.


The district court awarded damages to the plaintiff for lost earnings, mental anguish and suffering, harm to the plaintiff's reputation and career, and punitive damages against Captain Milliken. The Supreme Court has held that when only a liberty interest is infringed, the plaintiff is entitled to only nominal damages or to any actual damages, such as emotional distress, that can be proved to result from the infringement of the liberty interest. Carey v. Piphus, 435 U.S. 247, 260-63, 98 S.Ct. 1042, 1050-52, 55 L.Ed.2d 252 (1978). Rosenstein...

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