Sciolino v. City of Newport News, Va.

• Decision Date: 12 March 2007
• Docket Number: No. 05-2229.,05-2229.
• Citation: 480 F.3d 642
• Parties: Christopher A. SCIOLINO, Plaintiff-Appellant, v. CITY OF NEWPORT NEWS, VIRGINIA; Dennis A. Mook, Individually and as Chief of Police for the City of Newport News, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

480 F.3d 642

Christopher A. SCIOLINO, Plaintiff-Appellant, v. CITY OF NEWPORT NEWS, VIRGINIA; Dennis A. Mook, Individually and as Chief of Police for the City of Newport News, Defendants-Appellees.

No. 05-2229.

United States Court of Appeals, Fourth Circuit.

Argued November 28, 2006.

Decided March 12, 2007.

Thomas Allan Dyar, Law Office of Reid H. Ervin, P.C., Norfolk, Virginia, for Appellant. R. Johan Conrod, Jr., Kaufman & Canoles, P.C., Norfolk, Virginia; Allen Link Jackson, Chief Deputy City Attorney, City Attorney's Office for the City of Newport News, Newport News, Virginia, for Appellees.

Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.

Vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge GREGORY joined. Judge WILKINSON wrote a dissenting opinion.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge.

A former probationary city police officer brings this action pursuant to 42 U.S.C § 1983 (2000). He asserts that when discharging him, the city placed in his personnel file false information damaging to his good name without granting him a name-clearing hearing, and so deprived him of liberty rights without due process of law. Because the former employee did not allege facts asserting a likelihood that prospective employers or members of the public would see the damaging information, the district court did not abuse its discretion in dismissing the employee's complaint. However, when the district court denied the employee's motion to amend his complaint in order to meet this standard, the court did abuse its discretion. Accordingly, we vacate the judgment and remand for further proceedings consistent with this opinion.

I.

In May 2002, the Newport News Police Department hired Christopher Sciolino as a police officer. Sciolino began an eighteen-month probationary period during which he was not entitled to any departmental grievance rights. On June 26, 2003, the Acting Chief of Police Carl Burt placed Sciolino on administrative duty, asserting that Sciolino had advanced the odometer of his police cruiser approximately 10,000 miles, ostensibly to get a new car sooner. Sciolino denied these charges. On September 26, 2003, Chief of Police Dennis Mook, acting on behalf of the department, terminated Sciolino's employment by letter, accusing him of deliberately destroying city property by advancing the odometer. Sciolino alleges that the department placed the letter in his personnel file.

On June 2, 2004, Sciolino brought this action against the City of Newport News and Chief Mook (in both his individual and official capacity). The City and Chief Mook (hereafter collectively "the City") moved to dismiss Sciolino's first amended complaint for failure to state a claim. The district court granted the motion, holding that in order to give rise to a due process claim, a plaintiff must allege facts asserting that damaging and false charges in his personnel file were likely to be disseminated to prospective employers or members of the public.

After dismissal, Sciolino moved to file a second amended complaint, assertedly to satisfy this standard. The district court denied Sciolino's motion to amend. Sciolino appeals both the order dismissing the case, and the order denying his motion to file an amended complaint.

II.

Sciolino contends that by placing false charges in his personnel file, which "may be available" to prospective employers, the City deprived him of Fourteenth Amendment liberty interests — in his reputation and his ability to obtain future employment — without granting him a name-clearing hearing. Like the district court, we believe that in order to state a claim under the Due Process Clause, a plaintiff must allege a likelihood that prospective employers will inspect his personnel file. Accordingly, the district court did not abuse its discretion in dismissing Sciolino's first amended complaint.

A.

Although Sciolino, as a probationary employee, has no protected "property" interest in his employment with the City, a public employer cannot deprive a probationary employee of his "freedom to take advantage of other employment opportunities." Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). For this reason, a Fourteenth Amendment "liberty interest is implicated by public announcement of reasons for an employee's discharge." Johnson v. Morris, 903 F.2d 996, 999 (4th Cir. 1990).

Sciolino's claim thus arises from the combination of two distinct rights protected by the Fourteenth Amendment: (1) the liberty "`to engage in any of the common occupations of life,'" Roth, 408 U.S. at 572, 92 S.Ct. 2701 (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)); and (2) the right to due process "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him," Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); see also Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (explaining that an individual's liberty interest in his reputation is only sufficient "to invoke the procedural protection of the Due Process Clause" if combined with "some more tangible interest[ ] such as employment").¹

To state this type of liberty interest claim under the Due Process Clause, a plaintiff must allege that the charges against him: (1) placed a stigma on his reputation; (2) were made public by the employer; (3) were made in conjunction with his termination or demotion; and (4) were false. See Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 n. 5 (4th Cir.1988).

At this stage, the only element seriously at issue² is the second, the requirement that the charges have been "made public" — or that there has been a "public disclosure." See Bishop v. Wood 426 U.S. 341, 348, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Sciolino alleges in his first amended complaint that his file "may be available" to prospective employers. Quoting our decision in Ledford v. Delancey, 612 F.2d 883, 886-87 (4th Cir.1980), he argues that a plaintiff satisfies the dissemination element if he alleges that his personnel file "`may be the subject of inspection by prospective employers.'" Brief of Appellant at 9 (emphasis added by Appellant). In contrast, the City contends that a plaintiff must allege a specific incident of "actual publication" of the personnel file to state a claim. Brief of Appellees at 19. The district court selected an intermediate standard, holding that to state a claim the plaintiff must allege a "likelihood of dissemination" of the false charges to prospective employers.³

B.

Although they emphasize different portions of Bishop and Ledford, each side contends that these cases dictate the standard it espouses. Actually, neither case does so.

In Bishop, the Supreme Court considered the case of a discharged city police officer who sued his former employer contending that false charges accompanying his discharge "deprived him of an interest in liberty protected by" the Due Process Clause, even though his employer had not "public[ly] disclose[d] the reasons for the discharge." 426 U.S. at 343, 348, 96 S.Ct. 2074. The Court held that the employer's explanation could not "properly form the basis for a claim that petitioner's interest in his good name, reputation, honor, or integrity was thereby impaired" because, since the explanation had not been made public, even if false it would have had "no different impact on his reputation than if [it] had been true." Id. at 348-49, 96 S.Ct. 2074 (internal quotation marks omitted). Bishop thus holds that a purely private communication of the reasons for an employee's termination cannot form the basis for a due process claim, because there is no possibility of the allegation affecting the individual's Fourteenth Amendment liberty interests.

We then took up the question, in Ledford, of whether "false information contained in [a discharged probationary employee's] personnel file has impaired his ability to procure other employment." 612 F.2d at 885. The district court had granted the public employer summary judgment, reasoning that "[t]he mere fact that an employer may communicate with prospective employers as to the asserted reasons for nonretention does not . . . rise to the level of an infringement of liberty." Quoted in Brief of Appellant at 16, Ledford, 612 F.2d 883 (4th Cir.1980), 1977 WL 203837. We reversed, holding that a public employee "does have a protected right with respect to the contents of his personnel file when that file may be the subject of inspection by prospective employers." Ledford, 612 F.2d at 886. We explained that this standard had been satisfied because "one may fairly infer that the plaintiff has alleged that certain false information has been circulated and will continue to be circulated to prospective employers." Id. at 886-87. We did not hold that a plaintiff must allege actual dissemination of the information to a particular prospective employer, only that in the case before us "one may fairly infer" that the plaintiff had alleged actual dissemination.⁴ And we immediately reiterated that a "[p]laintiff has a right that his personnel file contain no substantially false information . . . when that information is available to prospective employers." Id. at 887 (emphasis added).

Not only do neither Bishop nor Ledford resolve the question before us, but also the cases from our sister circuits articulate varying standards as to the meaning of public disclosure. Some courts hold that a personnel file containing the stigmatizing statement must actually have been disseminated to a potential employer. See Johnson v. Martin, 943 F.2d 15, 16-17 (7th Cir.1991); cf. Burton v. Town of Littleton, 426 F.3d 9, 15 n. 5 (1st Cir.2005) (noting that to prove dissemination a "plaintiff must marshal sufficient evidence to support a conclusion that any of the prospective employers...