Opinion
Cause No. IP 99-535-C H/G
October 17, 2001
ENTRY ON DEFENDANTS' SUMMARY JUDGMENT MOTION
Plaintiff Daniel Morgan was fired from his job as a Shelby County juvenile probation officer by the judges of the Shelby County courts — defendants Judge Jack Tandy, Judge Charles O'Connor, and Judge Russell Sanders. A juvenile probationer whom Morgan had supervised had accused him of making a sexual advance. The judges decided to terminate Morgan's employment in part because defendant Timothy Kaiser, an Indiana State Police polygraph examiner, reported that Morgan had failed a polygraph conducted during an investigation of the probationer's allegations. The day Morgan was fired, he spoke with a long-time friend, John Hartnett, about his termination. Hartnett also knew Judges O'Connor and Tandy and called Judge O'Connor to talk about the situation. Judge Tandy later spoke to Hartnett and told him the reasons for Morgan's termination.
In this action, Morgan has asserted several claims under federal and state law arising from his termination. In an earlier decision, the court dismissed Morgan's Fifth Amendment claim and his due process claim based on an asserted property interest in his job. See Morgan v. Tandy, 2000 WL 682659, at *7 (S.D.Ind. Feb. 28, 2000). The court denied defendants' motion to dismiss Morgan's claim for deprivation of a liberty interest in his employment and career without due process of law based on Judge Tandy's disclosure to Hartnett of the reasons for Morgan's termination. Id. at *18.
Defendants have moved for summary judgment on Morgan's liberty interest due process claim, which he asserts under 42 U.S.C. § 1983, and on Morgan's state law claims for negligent administration of a polygraph, defamation per se, tortious outrage/intentional infliction of emotional distress, and invasion of privacy/public disclosure of private facts. In response, Morgan has dropped his invasion of privacy claim under Indiana law but opposes summary judgment on all other claims.
As explained in detail below, the court grants defendants' summary judgment motion on Morgan's Section 1983 claim for deprivation of liberty without due process of law. Morgan has failed to raise a fact question on whether Judge Tandy's statements to Hartnett caused Morgan to suffer a tangible loss of other employment opportunities. Such proof is required by controlling Seventh Circuit authority, and there simply is no evidence that Morgan has experienced any such tangible harm. Morgan also has not identified any stigmatizing information that Judge Tandy disclosed to Hartnett that Hartnett had not already learned from Morgan himself. Because the court is dismissing before trial the only federal claim remaining in the lawsuit, the court also dismisses all the remaining state law claims in Morgan's complaint without prejudice.
Morgan's Second Amended Complaint refers to alleged deprivations of his rights under the "constitutions and laws" of both the United States and the State of Indiana. See Second Amended Cplt. ¶¶ 1, 2, 7-8, 76, VIII (b) (Prayer for Relief). Morgan did not plead a state constitutional claim as a separate count. See id., passim ¶ 4 (alleging supplemental jurisdiction over specifically identified state law claims without reference to any state constitutional claim). To the extent the Second Amended Complaint might be construed to state a claim under the Indiana Constitution — an issue this court need not decide — any such claim will also be dismissed without prejudice. Defendants did not address Morgan's allegations under state constitutional law in their summary judgment motion.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998).On a motion for summary judgment, the moving parties must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the parties believe demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving parties have met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Service, Inc., 169 F.3d 494, 497 (7th Cir. 1999). The proper inquiry is whether, on the paper record before the court, a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000).
Undisputed Facts
For purposes of the defendants' summary judgment motion, the following facts are either undisputed or reflect the record in the light reasonably most favorable to Morgan, the non-moving party.
Plaintiff Daniel Morgan began working as a Shelby County juvenile probation officer on or about January 1, 1992. Tandy Decl. ¶ 3. Shelby County Circuit and Superior Court Judges Tandy, O'Connor, and Sanders had supervisory responsibility over the Shelby County probation officers. Id.
In early 1997, Indiana State Police Detectives Mark Mercer and Gary Wilkinson informed Judge Tandy that a male juvenile probationer ("J.P.") had complained that Morgan made a sexual advance towards him. Id., ¶ 7. Detective Mercer told Judge Tandy that the State Police had determined that even if J.P.'s allegations were true, their investigation was ending because it appeared that no crime had been committed. Id., ¶ 8. The State Police reached this conclusion after arranging for J.P. to call Morgan to make sexual advances towards Morgan during a monitored telephone call. See Tandy Dep. at 49-50. During the call, Morgan told J.P. that his propositions were inappropriate. See Ver. Cplt. ¶ 22; Second Amended Cplt. ¶ 21.
Because J.P. is a juvenile, his name is being kept confidential pursuant to Ind. Code §§ 31-39-1-1 and 31-39-2-8.
Judge Tandy told Mercer that ending the investigation at that point without a more definite conclusion as to the truth of J.P.'s allegations was unsatisfactory in terms of deciding whether Morgan's employment should continue. Tandy Decl. ¶ 9. Regardless of whether a crime had been committed, Judge Tandy believed that Morgan could no longer work as a juvenile probation officer if J.P.'s allegations were true. Id. Judge Tandy discussed this concern with Mercer who said he would talk to his supervisors to see what could be done. Id.
A few days later, Mercer told Judge Tandy that if the judge requested an internal investigation in writing, the State Police would continue looking into J.P.'s complaint. Id., ¶ 10. Judge Tandy had informed Judges O'Connor and Sanders of the situation. They all agreed that the State Police should be asked to continue the investigation, which they did. Id.
Mercer met with Morgan on March 25, 1997 and told him that the judges wanted him to take a polygraph test. Ver. Cplt. ¶ 32; Second Amended Cplt. ¶ 31. Morgan told Mercer that he wanted to talk to an attorney before agreeing to the test. Id. On April 6, 1997, Morgan sent Mercer a letter declining, on advice of counsel, to submit voluntarily to the polygraph. Ver. Cplt. ¶ 34; Second Amended Cplt. ¶ 33.
At some point, Mercer told Judge Tandy that he believed J.P.'s allegations were true; that J.P. had passed a polygraph; and that Morgan had lied to Mercer. Tandy Decl. ¶ 12. Mercer also told Judge Tandy that Morgan adamantly denied the allegations. Id. Judge Tandy understood that the subject of Morgan's lie was his denial that he had had contact with J.P. on a particular date. See id. Mercer knew the denial was untrue because, on the date in question, J.P. had made the monitored telephone call to Morgan as part of the initial State Police investigation.
The judges met with Morgan in April 1997 to "strongly suggest" that he take the polygraph. See Tandy Dep. at 90 ("I think we made it clear to Mr. Morgan at this point that his job was on the line."); Tandy Decl. ¶ 14. Morgan told the judges he did not want to take the polygraph, but he reluctantly did so on May 19, 1997. Tandy Decl. ¶ 15. Timothy Kaiser, a polygraph operator and State Police Sergeant, conducted the polygraph examination. Kaiser Decl. ¶¶ 1 13.
Sometime later, the State Police informed the Shelby County judges that Morgan had failed the polygraph. On June 13, 1997, Kaiser met with Judges Tandy and O'Connor to discuss the test procedures and results. Tandy Decl. ¶ 16. Kaiser described Morgan's performance as a "slam dunk," see id., though that description is unreliable.
Although the dispute is not material to the disposition of Morgan's liberty interest claim, there is a genuine factual issue about Morgan's performance on the polygraph examination that Kaiser administered. Kaiser orally described it as a "slam dunk" to the judges, but his written report stated less conclusively only that Morgan "cannot be cleared as being completely truthful in this matter." Kaiser Decl., Ex. B. At the relevant time, Kaiser was still in training as a polygraph operator, and his examinations were subject to review by a supervisor. The supervisor described the results of Morgan's polygraph as "inconclusive." In addition, Morgan has come forward with evidence indicating that Kaiser administered the polygraph poorly and that his interpretation was not reliable. After filing this lawsuit, Morgan passed a polygraph examination during which he denied J.P.'s allegations. That polygraph was administered by an examiner retained by Morgan.
Judges Tandy and O'Connor informed Judge Sanders about what they had learned from Kaiser. Sanders Decl. ¶¶ 12-13. The judges then unanimously decided to terminate Morgan's employment. Tandy Decl. ¶ 18. The judges informed Morgan of their decision in a meeting on the afternoon of June 13, 1997. Id., ¶ 19. After the meeting with Morgan, Judge Tandy called the chief probation officer to inform her of the termination decision and to instruct her to forward any inquiries about the termination to the judges. Id., ¶ 20. The judges decided that they would have no public comment on the termination. Id.
Later on June 13, 1997, Morgan talked with John Hartnett about what had happened. Hartnett has been the director of the Shelbyville Boys' Club for several years. Hartnett Decl. ¶ 1. He is a friend of Morgan as well as Judge Tandy and Judge O'Connor. Id., ¶¶ 4, 9. Morgan became a youth leader at the Boys' Club and has worked there as an adult. Id., ¶ 5. Hartnett assisted Morgan when he applied for college and strongly urged Judge Tandy to hire Morgan as a probation officer. Id., ¶ 6. Hartnett has served as Judge Tandy's campaign chairman, and he is an "old family friend" of Judge O'Connor. Id., ¶¶ 4, 9.
Morgan told Hartnett that his employment had been terminated because of "a complaint of abuse by one of his probationers." Hartnett Decl. ¶ 8. Morgan also informed Hartnett that the judges had required him to take a polygraph test and that the judges told him that he failed the test. Id. Morgan explained to Hartnett why he did not believe his termination was appropriate. Id.
Hartnett was shocked to hear that Morgan had been fired. Id., ¶ 9. He telephoned Judge O'Connor on June 13, 1997 and told the judge what Morgan had told him about the termination. Id. Because Hartnett believed he had been instrumental in helping Morgan obtain the job, Hartnett told Judge O'Connor that he wanted some answers about why Morgan was fired. Id. Judge O'Connor listened to Hartnett and then told him that Judge Tandy would call him. Id. There is no evidence that Judge O'Connor provided any information to Hartnett about the reasons for or circumstances of Morgan's termination.
Judge Tandy called Hartnett at home on Sunday, June 15, 1997. Judge Tandy told Hartnett that he felt he owed him the call as a friend and that he felt morally compelled to talk to him about Morgan's termination. Tandy Dep. at 127. Hartnett told Judge Tandy what Morgan had told him on June 13th, including that there had been an investigation of an allegation of abuse made by a juvenile; that Morgan had been required to take a polygraph examination; and that Morgan had been told that he had failed the polygraph examination. Hartnett Decl. ¶ 10. Judge Tandy confirmed these facts during the conversation. Judge Tandy discussed the situation in general, explaining why the judges discharged Morgan. Judge Tandy told Hartnett "an allegation had been made, the nature of the allegation, the investigation, Dan's deception with us." Tandy Dep. at 127. Judge Tandy also stated that the allegation of "sexual misconduct" had been investigated and "we felt that it was most likely true." Id. at 128. Judge Tandy did not provide details about the investigation or disclose the name of the juvenile in question. Hartnett Decl. ¶ 10. Hartnett expressed the view that the termination and its reasons should not be publicized but that he intended to talk with Morgan himself about the conversation. Id. Judge Tandy also told Hartnett that the matter would not be made public. Id.
According to Judge Tandy, Hartnett "knew many of these things. It was clear that he, from Dan or from some source, knew this information. It wasn't me sharing new information to him." Tandy Dep. at 128. Hartnett believes that he probably gave Judge Tandy some additional (but unspecified) information about the matter that he had received from Morgan. Hartnett Decl. ¶ 10.
Judge Tandy did not discuss with Hartnett whether Morgan should continue working at the Boys' Club, although he was thinking about that question. Tandy Dep. at 35. Judge Tandy "conveyed" to Hartnett that he "felt that the evidence suggested" "at that point" that Morgan had a problem being sexually attracted to young boys. Id. Based on the information Judge Tandy gave Hartnett, it would have been reasonable for Hartnett to reach the same conclusion. Judge Tandy and Hartnett had a civil conversation, but it was clear to Judge Tandy that Hartnett believed Morgan and felt that J.P.'s allegations were false. Tandy Decl. ¶ 23.
Contrary to assertions in Morgan's brief, Judge Tandy did not testify that he discussed the following with Hartnett: (1) J.P.'s statement to the police; (2) J.P.'s polygraph examination; (3) J.P.'s mother's statement to the police; or (4) Morgan's failure to address J.P.'s sexual solicitation by telephone with the judges. See Pl. Br. at 11, citing Tandy Dep. at 36. Judge Tandy referred to these items in response to a short line of questions about what evidence, other than the polygraph, supported J.P.'s allegations. Tandy Dep. at 36. (In relevant part, Judge Tandy's deposition testimony about his conversation with Hartnett ended at the bottom of page 35 and resumed at page 40.) In addition, neither Hartnett nor Judge Tandy testified that Judge Tandy ever used the phrase "sexual predator" in reference to Morgan, as Morgan's counsel has suggested. See Pl. Surreply at 11.
The only person who has used that explosive phrase in the record of this litigation is Morgan's counsel. See Tandy Dep. at 26 (Testimony by Judge Tandy: "Well, sexual predator is your word, that's not my word."). Morgan also has attempted to supplement the record of what Judge Tandy said to Hartnett by reference to Morgan's Verified Complaint. See Pl. Surreply at 11, quoting Ver. Cplt. ¶ 60 ("Judge Tandy imputed that Mr. Morgan had in fact engaged in criminal conduct and/or sexual misconduct with a juvenile . . . ."). A verified complaint may be treated as an affidavit to the extent it complies with the requirements of Fed.R.Civ.P. 56(e), including requirements of personal knowledge. See Ford v. Wilson, 90 F.3d 245, 246 (7th Cir. 1996). Morgan verified only the factual representations in the complaint "as to all matters which I possess personal knowledge." Morgan's Verified Complaint is not admissible evidence of what Judge Tandy said to Hartnett in a conversation for which Morgan was not present. Morgan has no personal knowledge of the contents of that conversation.
Hartnett has not disclosed to any person other than Morgan (and the attorneys involved in this lawsuit) any comments Judge Tandy made during their conversation. Hartnett Decl. ¶ 11. Hartnett has not made any negative comments about Morgan's termination to any person. Id., ¶ 12. Other than to Morgan, Hartnett has not disclosed any reasons for Morgan's termination that might have been expressed to him by Judge Tandy. Id. Hartnett has agreed to serve as a positive reference for Morgan regarding any employment or other opportunity. Id., ¶ 13. No one has contacted Hartnett for a reference. Id., ¶ 14. Other facts are noted below as necessary, keeping in mind the standard for facts on a motion for summary judgment.
Discussion
Morgan's Section 1983 claim against Judge Tandy fails as a matter of law because Morgan has not come forward with evidence that tends to show that Judge Tandy's statements about his discharge to John Hartnett have caused him any tangible loss of other employment opportunities. The court declines to retain supplemental jurisdiction over Morgan's remaining contested state law claims.
I. Morgan's Federal Claim
A. Due Process and the Deprivation of Liberty Interest in Employment
Due process of law entitles a government employee to notice and an opportunity to be heard before the government takes action calling into question the employee's "good name, reputation, honor, or integrity." Board of Regents v. Roth, 408 U.S. 564, 573 (1972), quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971). The employee is deemed to have a liberty interest, for purposes of the Due Process Clause, in his right to pursue the profession or calling of his choice.
To enforce this liberty interest in an action under Section 1983, a discharged public employee must show: (1) he or she was stigmatized by the employer's actions; (2) the stigmatizing information was publicly disclosed; and (3) the employee suffered a tangible loss of other employment opportunities as a result of the public disclosure. E.g., Townsend v. Vallas, 256 F.3d 661, 669-70 (7th Cir. 2001); Head v. Chicago Sch. Reform Bd. of Trustees, 225 F.3d 794, 801 (7th Cir. 2000); Strasburger v. Board of Educ., Hardin County Community Unit Sch. Dist. No. 1, 143 F.3d 351, 356 (7th Cir. 1998).
The due process right at issue here is important, but it is also narrow. The defendants' decision to fire Morgan did not trigger any Fourteenth Amendment right to any type of hearing. As far as the Fourteenth Amendment's Due Process Clause is concerned, the defendants were free to fire Morgan for good cause, bad cause, or no cause. They could do so on the basis of evidence that was rock solid, flimsy, or non-existent. In other words, as long as the defendant judges did not publicly explain their actions, the Fourteenth Amendment does not affect their power as Morgan's employers to use their own judgment in making the decision to fire or retain Morgan when confronted with J.P.'s accusations. Bishop v. Wood, 426 U.S. 341, 348, 349-50 (1976) ("We must accept the harsh fact that numerous individual mistakes are inevitable in the day-to-day administration of our affairs. The United States Constitution cannot feasibly be construed to require federal judicial review for every such error."). The Fourteenth Amendment applies here only as a limit, prior to a hearing, on any public disclosures about the reasons for and circumstances of Morgan's firing.
In addition, under the controlling law, the defendants' motion for summary judgment does not depend at all on what might seem from a more practical standpoint to be the pivotal question: whether J.P.'s accusations against Morgan are true or false. Morgan's claim fails for lack of evidence that the public disclosure (to Hartnett) of the reasons for his firing caused him any harm, as distinct from harm resulting from the firing itself.
B. Claims Against Judges O'Connor and Sanders
As a preliminary matter, Judges O'Connor and Sanders are entitled to summary judgment on the liberty interest claim against them because there is no evidence that either had any personal responsibility for the alleged deprivation. Individual liability under Section 1983 must be based on personal responsibility for the constitutional violation. See, e.g., Chavez v. Illinois State Police, 251 F.3d 612, 651-52 (7th Cir. 2001) (defendant "will be deemed to have sufficient personal responsibility if he directed the conduct causing the constitutional violation, or if it occurred with his knowledge or consent"); Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995).
The only public disclosure of the reasons for Morgan's firing occurred in Judge Tandy's telephone conversation with John Hartnett on June 15, 1997. There is no evidence that Judge Sanders had any involvement with that conversation. Judge O'Connor, in turn, had received a call from Hartnett to talk about Morgan's firing, but there is no evidence in this record that Judge O'Connor said anything to Hartnett about the reasons for Morgan's firing. Judge O'Connor listened to Hartnett and told him that Judge Tandy would call him. On this record, there also is no evidence that Judge O'Connor knew what Judge Tandy planned to tell Hartnett, let alone that he encouraged Judge Tandy or had the opportunity to prevent Judge Tandy from telling Hartnett about the reasons. A finder of fact might speculate about such matters, but that speculation is not an adequate substitute for evidence on the point.
Morgan argues that Judges O'Connor and Sanders should be held responsible here because they received the results of the investigation and participated in the decision to fire him. The problem with the argument is the narrow focus of the Fourteenth Amendment right at issue here. As far as the Fourteenth Amendment is concerned, the defendants were free to ask for an investigation of Morgan, and they were free to fire him for good reasons or bad reasons. The only federal claim that survived the motion to dismiss was Morgan's claim that public disclosure of the reasons for his firing deprived him of liberty without due process of law. The issue thus is whether Judges O'Connor and Sanders were personally responsible for that alleged constitutional violation. There is no evidence of such personal responsibility. They are entitled to summary judgment on the federal liberty interest claim.
In addition, none of the judges can be liable under Section 1983 for an alleged deprivation of Morgan's due process liberty interest based on the judges' decision to ask the State Police to reopen the investigation into J.P.'s allegations. Even if this type of conduct could be actionably "stigmatizing," there is no evidence that the investigation was made public in any way, apart from Judge Tandy's conversation with Hartnett, for which the evidence leaves Judge Tandy alone responsible.
C. The Claim Against Judge Tandy
Morgan's claim against Judge Tandy is the heart of the matter. For summary judgment purposes, Morgan has come forward with evidence sufficient to establish the first two elements of his claim against Judge Tandy. During the telephone call on June 15th, Judge Tandy responded to Hartnett's inquiry about the reasons for Morgan's termination. During this conversation, Judge Tandy stated or confirmed that a juvenile probationer made allegations of a sexual nature against Morgan and that the investigation had convinced Judge Tandy and the other judges that the allegations more than likely were true. Judge Tandy also referred to the results of Morgan's polygraph examination.
The substance of Judge Tandy's communication to Hartnett was sufficiently stigmatizing to establish the first element of Morgan's liberty interest claim. The charge of sexual misconduct with a juvenile probationer assigned to Morgan for supervision is obviously highly stigmatizing and damaging to Morgan's good name, reputation, honor, and integrity. See, e.g., Winegar v. Des Moines Independent Community School Dist., 20 F.3d 895, 899 (8th Cir. 1994) (accusation that teacher physically abused student was sufficiently stigmatizing to implicate liberty interest); Brandt v. Board of Co-operative Educational Services, 820 F.2d 41, 42 (2d Cir. 1987) (same for accusations that a teacher sexually abused autistic children). Cf. Wroblewski v. City of Washburn, 965 F.2d 452, 456 (7th Cir. 1992) (charges of incompetence or poor management skills do not implicate liberty interest), quoting Munson v. Friske, 754 F.2d 683, 693 (7th Cir. 1985).
In support of their motion for summary judgment, defendants have renewed their earlier argument that anything Judge Tandy said was literally true. They contend the statements were literally true because all were phrased either in terms of Judge Tandy's beliefs or opinions or what had been reported to him, or in terms of Kaiser's opinion that Morgan had "failed" the polygraph test.
This theory of "literal truth" is not supported by the law. Defendants propose drawing a constitutional distinction between a public statement that "I fired plaintiff because he did X" (truth or falsity in dispute) and "I fired plaintiff because I have heard that plaintiff did X" (literally true because the speaker did hear as much). As discussed in detail in the court's February 28, 2000 entry, such a distinction would render public employees' liberty interests utterly hollow. See Morgan v. Tandy, 2000 WL 682659, at *10-18. That lengthy analysis need not be repeated here. Defendants have not offered any new reason to reconsider that analysis; they have not even tried to come to terms with that analysis. The "literal truth" defense does not support summary judgment in this case on the claim against Judge Tandy.
On the second element of the liberty interest claim, defendants also argue that Judge Tandy did not make any public disclosure of the stigmatizing information. Defendants contend that he told only Hartnett, who he expected would keep the information "in confidence" based on their longstanding friendship. This argument also fails. Hartnett was not part of the court system or the probation department and its chain of command. As a matter of law, he was a member of the public who was under no legal obligation to keep the explosive information confidential. See McMath v. City of Gary, 976 F.2d 1026, 1033 (7th Cir. 1992) (reversing jury verdict for plaintiff because evidence failed to link defendants to public statements; "Absent proof that the defendants disseminated the stigmatizing information beyond the appropriate chain of command within the City of Gary, [plaintiff] McMath cannot succeed."); accord, Johnson v. Martin, 943 F.2d 15, 17 (7th Cir. 1991) (affirming summary judgment for defendants based on lack of public disclosure where stigmatizing information was kept in plaintiff's personnel file and not disclosed outside the "chain of command"); Ratliff v. City of Milwaukee, 795 F.2d 612, 627 (7th Cir. 1986) (affirming factual finding of no publication where stigmatizing information not disclosed outside police department).
Hartnett has testified in his affidavit that he treated as "highly confidential" the information he received from Judge Tandy. Hartnett Decl. ¶ 11. Also, he and Judge Tandy had previously discussed "in confidence" other young men in the community. Id., ¶ 4. The liberty interest cases make no constitutional distinction, however, between disclosures to trusted friends and disclosures to other members of the public. The public employer who makes a stigmatizing disclosure to someone who has no legal obligation to keep the information private makes a disclosure that is, for these purposes, public.
Because Hartnett kept the confidence, however, Morgan's liberty interest ultimately claim fails as a matter of law because there is no record evidence to support the third element of his claim. There is no evidence that Morgan experienced any tangible loss of other employment opportunities as a result of Judge Tandy's conversation with Hartnett.
Morgan contends that the fact that he lost his job at the probation office is sufficient to carry his burden on this element, citing Paul v. Davis, 424 U.S. 693 (1976) (holding that injury to reputation alone does not support a deprivation of liberty interest claim). The Supreme Court wrote in Paul v. Davis that the loss of employment is a necessary element of a public employee's liberty interest claim, but it did not hold that the loss of current employment was sufficient to sustain such a claim. The case did not squarely address this issue because it was not before the court — the plaintiff worked for a private employer and was not fired. Significantly, however, the language from Paul v. Davis on which Morgan relies demonstrates the Supreme Court's focus on the loss of future or other employment opportunities: "To be deprived not only of present government employment but of future opportunity for it certainly is no small injury when government employment so dominates the field of opportunity." 424 U.S. at 704, quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 184-85 (1951) (Jackson, J., concurring); see also Paul v. Davis, 424 U.S. at 705 (liberty interest implicated "where government action has operated to bestow a badge of disloyalty or infamy, with an attendant foreclosure from other employment opportunity"), quoting Cafeteria Workers v. McElroy, 367 U.S. 886 (1961).
Subsequent Seventh Circuit cases teach that the third element of a due process liberty interest in employment claim requires that the plaintiff demonstrate the loss of other or future employment opportunities. The Seventh Circuit recently addressed this issue in Townsend v. Vallas:
In Colaizzi, we went on to explain that, because the interest protected in such cases was occupational liberty rather than liberty of reputation, mere defamation coupled with a firing is not sufficient to state such a claim. See Colaizzi v. Walker, 812 F.2d 304, 307 (7th Cir. 1987). As a result, regardless of whether an employee charges that, in the course of firing him, an employer defamed him by either (1) damaging his good name, reputation, honor or integrity or (2) by imposing a stigma or other disability upon him that foreclosed other employment opportunities, the employee must show that, because the charges have been made, it is unlikely that anyone will hire him for a comparable job in the future.256 F.3d 661, 670 n. 9 (7th Cir. 2001). The Townsend court noted that the Supreme Court indicated in Board of Regents v. Roth that "a cognizable constitutional claim required proof that an employer's actions significantly foreclosed an employee's future employment prospects to a degree amounting to a deprivation of liberty." Id. at 670, quoting Roth, 408 U.S. at 574 n. 13 ("Mere proof, for example, that [the plaintiff's] record of non-retention in one job, taken alone, might make him somewhat less attractive to some employers would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of liberty.") (internal quotation marks omitted); see also Zaky v. United States Veterans Admin., 793 F.2d 832, 840 (7th Cir. 1986) (district court erred by assuming that a wide variety of opportunities had been foreclosed).
In Townsend, the Seventh Circuit affirmed summary judgment for a government employer on the plaintiffs' Section 1983 claims for deprivation of a due process liberty interest in employment. One plaintiff was a part-time lifeguard and swimming coach at a Chicago public school where a student had drowned in the swimming pool. See 256 F.3d at 664 (discussing facts giving rise to plaintiff Riley's claim). The plaintiff was told not to report back to the school following the student's death. Following an investigation, a school board representative told a reporter that she would recommend that the school board not continue to employ the plaintiff because of his "failure to perform his duties." Id. at 666.
The Seventh Circuit affirmed summary judgment because the plaintiff had not demonstrated a tangible loss of other employment opportunities as a result of the allegedly stigmatizing statement. Id. at 670. The plaintiff had produced no evidence that he sought new employment after the school board's statement and had been turned down because of the statement. The plaintiff also had continued to be employed by the City of Chicago (separate from the school board) as a swimming instructor. The court did not accept the plaintiff's factually-unsupported assertion that the school board's statement made him "virtually unemployable in his chosen profession." The court also did not construe the district-wide ban on employing the plaintiff as sufficient to demonstrate a violation of plaintiff's liberty interest. Id. at 671, quoting the district court's decision ("the Chicago school system is one of many school systems in the metropolitan area and state").
The Seventh Circuit specifically rejected the plaintiff's argument that an employee should not be required to show that the defamation in question caused the tangible loss of other employment opportunities. The court explained: "the requirement that the employee show he suffered a tangible loss of other employment opportunities is consistent with the principle that a liberty interest claim must not be unduly speculative." Id. at 670, citing, among other cases, Fittshur v. Village of Menomonee Falls, 31 F.3d 1401, 1409-10 (7th Cir. 1994) (as a matter of law, plaintiff could not establish that alleged stigmatizing statement foreclosed future employment opportunities where there was no evidence statement was made; the fact that plaintiff applied for 89 jobs without receiving an offer of employment did not support an inference that defamatory statements were made that cost him job opportunities); Vukadinovich v. Board of School Trustees of the Michigan City Area Schools, 978 F.2d 403, 413 n. 7 (7th Cir. 1992) (even if post-hearing reference to plaintiff's "immorality" implicated liberty interest, plaintiff's claim would fail because plaintiff had no evidence that his prospects for future employment were diminished); Ohse v. Hughes, 816 F.2d 1144, 1150 (7th Cir. 1987) (affirming dismissal of liberty interest claim where plaintiff found employment after his termination and presented "no significant evidence" that his discharge seriously damaged his reputation in the community), vacated on other grounds, 485 U.S. 902 (1988); Munson v. Friske, 754 F.2d 683, 694 (7th Cir. 1985) (affirming summary judgment for government employer where plaintiff subsequently was reemployed in a different location and where there was no evidence that plaintiff's claimed inability to obtain a job was the result of any stigma or disability imposed on him by the defendants).
Like the plaintiff in Townsend, Morgan has failed to produce any specific evidence of other employment opportunities lost because of Judge Tandy's statements to Hartnett. The absence of such evidence is not surprising because it is undisputed that Hartnett kept the information to himself. He did not share it with any prospective employers of Morgan or with anyone who might have communicated the information directly or indirectly to such prospective employers.
On this issue, the record contains only Morgan's conclusory allegation that he is "virtually unemployable in his chosen profession in his home town of Shelby County." Ver. Cplt. ¶ 93; Second Amended Cplt. ¶ 75. Even treating the verified complaint as an affidavit, this is the same type of unsupported assertion that the Seventh Circuit rejected in Townsend. See 256 F.3d at 670. On this record, Morgan's liberty interest claim fails as a matter of law because there is no evidence from which a jury reasonably could conclude that Morgan has lost other tangible employment opportunities because of Judge Tandy's statements.
Morgan argues that he should not be required to prove a tangible loss of other employment opportunities because the stigmatizing statement at issue would constitute defamation per se under state defamation law. Pl. Br. at 13. The cases cited by Morgan simply do not support this proposition. In fact, in Siegert v. Gilley, 500 U.S. 226, 234 (1991), the Supreme Court expressly refused to extend defamation law presumptions about damages to a constitutional liberty interest claim.
On this point, Morgan also cites Fittshur, 31 F.3d 1401, and McMath, 976 F.2d 1026. Neither decision supports his argument that proof of defamation per se under state law excuses any need for additional proof of loss of other employment opportunities as part of a constitutional liberty interest claim.
Notwithstanding this authority requiring more proof than Morgan has offered, there is room to argue that this line of authority might be limited by the combination of (a) the explosive charges against Morgan and (b) a career as a probation officer that is essentially limited to government work. Where the effect of the firing and its reasons on Morgan's career seems highly probable from a practical standpoint, one might argue that he should be excused from providing additional proof of the effects. This case demonstrates, however, why such a limit would not be advisable. Although Judge Tandy's disclosure to Hartnett qualifies as a "public" disclosure to satisfy the second element of Morgan's liberty interest claim, there simply is no evidence that Judge Tandy's disclosure caused any harm to Morgan's future career. The court assumes that the decision to fire Morgan has had a powerful effect on his career. As explained above, however, that decision itself is not the subject of the narrow liberty interest claim.
Even if Morgan could show that he has lost other employment opportunities, he would still need to come forward with evidence that such loss occurred "as a result of the public disclosure." Townsend, 256 F.3d at 670 (citing cases). There is no evidence that any tangible loss of employment opportunities could have been caused by Judge Tandy's conversation with Hartnett. Apart from the fact that Hartnett did not disclose the stigmatizing information to anyone else,
on this record, it is undisputed that Hartnett already knew from Morgan himself what Judge Tandy told him about Morgan's termination.
In a footnote in his surreply, Morgan asserts that Judge Tandy disclosed something new by referring to "Dan's deception with us." Morgan argues Judge Tandy's reference to "deception" should be interpreted to mean that the judge has admitted that he told Hartnett that Morgan lied about having contact with J.P. on a particular date — a fact that Morgan argues he did not disclose to Hartnett during their conversation on June 13, 1997. This argument cannot save Morgan's claim. Morgan has not offered any actual evidence in support of his assertion that he did not tell Hartnett that he denied having contact with J.P. on a particular day. As summary judgment motions go, this case is unusual because Morgan has not submitted his own affidavit and has not, up to this point, been deposed.
Morgan asserts he has been "precluded" from testifying in a deposition because of assertions that the state police are conducting an "ongoing criminal investigation." Pl. Surreply at 2 n. 2. Because of the ongoing investigation, the court has not compelled Morgan to appear for a deposition, but he has certainly been free to appear voluntarily. See generally Harris v. Chicago, ___ F.3d ___, 2001 WL 1117815, *2 (7th Cir. Sept. 21, 2001) (reversing denial of new trial where defendant testified at trial and won verdict, but had invoked Fifth Amendment privilege to avoid deposition during discovery because of pending criminal investigation, and trial court had excluded evidence of prior refusals to testify).
A liberty interest plaintiff is required to identify specifically the alleged stigmatizing statements at issue. See Wroblewski, 965 F.2d at 456 n. 2 (citation omitted) ("To be constitutionally cognizable, however, an official's defamation must consist of specific stigmatizing statements that are made public."). There is no evidence that Judge Tandy told Hartnett about the details of the investigation. In the absence of any other evidence, Judge Tandy's statement that he told Hartnett about "Dan's deception with us" cannot reasonably be construed to refer to any particular incident.
Even if Judge Tandy had told Hartnett that Morgan had lied about having contact with J.P. on a particular day, that additional disclosure could not support a finding that Morgan suffered any eventual harm resulting from Judge Tandy's conversation with Hartnett. It is undisputed that Hartnett already knew from Morgan that the judges had told Morgan that he failed a polygraph. See Hartnett Decl. ¶ 10; see also Kaiser Dep. at 83 (Kaiser told judges that polygraph examination results indicated that Morgan was "deceptive").
Thus, no jury reasonably could conclude that any harm attributable to Hartnett's knowledge of the circumstances surrounding Morgan's termination was a result of Judge Tandy's conversation with Hartnett. Cf. Mitchell v. Glover, 996 F.2d 164, 168 (7th Cir. 1993) (as a matter of law, defendants did not publish stigmatizing facts about plaintiff where college president responded to an inflammatory and apparently untrue statement made by union leader about plaintiff's termination at a meeting: "If [the plaintiff] seeks to place the responsibility for the disclosure of the information at the staff meeting, he should look to [the union leader] and not [the college president]."); McMath, 976 F.2d at 1033, 1035-36 (reversing jury verdict on liberty interest claim where no evidence linked defendants to publication; the plaintiff himself had discussed some aspects of his termination with several members of the public).
Accordingly, plaintiff Morgan has failed to raise a genuine issue of material fact as to the third element of his liberty interest claim against Judge Tandy — proof that the public disclosure of stigmatizing information caused him to suffer any tangible loss of other employment opportunities. Judge Tandy is entitled to summary judgment on the merits of the liberty interest claim.
D. Qualified Immunity
The defendant judges also argue that they are entitled to qualified immunity as a matter of law on Morgan's Section 1983 claim. As the court discussed in the entry of February 28, 2000, government officials performing discretionary functions generally are shielded from individual liability for civil damages unless their conduct violates "clearly established" statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether a constitutional right was "clearly established" at the time of the alleged violation, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993), quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987).
The court denied defendants' motion to dismiss Morgan's liberty interest due process claim on qualified immunity grounds:
"It is and was in 1997 clearly established law that when a public employee is fired with an accompanying charge of sexual misconduct on the job, with a juvenile no less, the charge is sufficiently stigmatizing to trigger liberty interest protections . . . ."Morgan v. Tandy, 2000 WL 682659, at *19, citing McMath, 976 F.2d at 1031. Nothing in the summary judgment record changes this conclusion. There is no recognized exception for disclosures to members of the public who the employer expects will keep the information "in confidence." Morgan's Section 1983 claim fails as a matter of law because of circumstances beyond Judge Tandy's control concerning the effects of the public disclosure, not because Morgan failed to demonstrate that his due process liberty interest was implicated by Judge Tandy's statements to Hartnett.
II. Morgan's State Law Claims
This court has had supplemental jurisdiction over Morgan's state law claims pursuant to 28 U.S.C. § 1367. Because the court is granting summary judgment on Morgan's Section 1983 claim, the only federal claim remaining in the lawsuit, the court now relinquishes jurisdiction over the contested state law claims and dismisses them without prejudice. See, e.g., Van Harken v. Chicago, 103 F.3d 1346, 1354 (7th Cir. 1997) ("The general rule is that when as here the federal claim drops out before trial (here way before trial), the federal district court should relinquish jurisdiction over the supplemental claim."). There is no reason not to apply this general rule in this case.
Conclusion
Defendants are entitled to summary judgment on Morgan's Section 1983 claim for deprivation of his due process liberty interest in employment. Morgan has not come forward with evidence that Judges O'Connor or Sanders were personally responsible for public disclosure of stigmatizing information about Morgan's firing. Morgan also has not come forward with evidence that he has lost any tangible employment opportunities as a result of Judge Tandy's conversation with John Hartnett. Judgment for the defendants will be entered on Count I of Morgan's Second Amended Complaint and on the claim under state law for invasion of privacy. The remaining claims in Morgan's complaint are dismissed without prejudice. Final judgment shall issue accordingly.
So ordered.