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In Matter of Lentlie v. Egan (61 N.Y.2d 874), this Court found insufficient proof of the dissemination element from "the mere fact that one officer within the agency in which petitioner was employed was familiar with some of the reasons for petitioner's demotion" (61 N.Y.2d, at 876).
Summary of this case from Matter of Swinton v. SafirOpinion
Argued January 6, 1984
Decided February 28, 1984
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, ROBERT C. WILLIAMS, J.
Jeffrey J. Sherrin for appellant.
Robert Abrams, Attorney-General ( William J. Kogan and Peter H. Schiff of counsel), for respondents.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
The affirmed finding of fact that respondents acted in good faith in terminating petitioner's probationary employment on the basis of unsatisfactory performance is beyond our review. ( Morgan Servs. v Lavan Corp., 59 N.Y.2d 796.)
With regard to petitioner's claim for a name-clearing hearing, "[o]nly if the [public] employer creates and disseminates a false and defamatory impression about the employee in connection with his termination is such a hearing required." ( Codd v Velger, 429 U.S. 624, 628 [emphasis added]; see, also, Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 56 N.Y.2d 656.) While the law of defamation requires but one communication to a single person ( Ostrowe v Lee, 256 N.Y. 36, 38), a discharged employee's entitlement to a due process hearing to clear his or her name accrues only when there has been a "public disclosure" by the employer of stigmatizing reasons for the discharge ( Bishop v Wood, 426 U.S. 341, 348; see, also, Matter of Petix v Connelie, 47 N.Y.2d 457), thereby foreclosing the employee's freedom to take advantage of other employment opportunities ( Board of Regents v Roth, 408 U.S. 564, 573). Here, the mere fact that one officer within the agency in which petitioner was employed was familiar with some of the reasons for petitioner's demotion, does not establish that such information was publicly disseminated by respondents (cf. Matter of Petix v Connelie, supra, at p 460), and, consequently, no hearing was required.
We have considered petitioner's other claims and find them to be without merit.
Judges JASEN, JONES, WACHTLER and KAYE concur; Judge MEYER dissents and votes to reverse in an opinion in which Chief Judge COOKE concurs; Judge SIMONS taking no part.
Order affirmed, with costs, in a memorandum.
Respectfully, I dissent.
The Trial Judge noted that the agency's records included charges implying stubbornness, insubordination and obstinance entitling petitioner to a name-clearing hearing. Insubordination carries sufficient stigma to require such a hearing ( Matter of Civil Serv. Employees Assn. v Wallach, 48 A.D.2d 923). The Appellate Division held, however, that the charge had not been "publicly disclosed" and on that basis the majority now affirms.
"He uses poor judgment and his organization needs immediate improvement. He doesn't adhere to set procedures. He wants to do things his way since he feels the rules and regulations are senseless, because of this he can not be depended upon to do the simplest of tasks."
So also does physical abusiveness ( Matter of Jackson v Wallach, 48 A.D.2d 925) and here petitioner's record also includes the notation that: "He has to learn to be more courtious [ sic] in dealing with the public and especially with his co-workers. He has, on a couple of occasions, threatened 2 of his co-workers with bodily harm, in front of others."
The petition, however, notes that in future job applications to State employers the record will be automatically available and that as to non-State employers petitioner will be faced with the dilemma that if he refuses to permit the record to be released he will not be hired and if he agrees that it be released he will not be hired because of the stigmatizing charges. Respondent does not deny that petitioner's record will be made available to possible employers to whom petitioner may apply in the future.
To hold that such future dissemination is an insufficient basis for a hearing is, in my view, inconsistent with our decision in Matter of Petix v Connelie ( 47 N.Y.2d 457) and with the practically unanimous authority of Federal and out-of-State cases and is not required by the Supreme Court's decision in Codd v Velger ( 429 U.S. 624).
In Petix we recognized that "an entry in a personnel record may in some circumstances so stigmatize an individual as to require a hearing even though not immediately disseminated" ( 47 N.Y.2d, at pp 460-461). Codd v Velger ( supra) decided no more than that "even were we to accept in its entirety the determination by the Court of Appeals that the creation and disclosure of the file report [that Velger had attempted suicide] amounted to stigmatization," Velger was entitled to no hearing because he failed to deny the accuracy of the report (429 US, at pp 628-629). Thus, it cannot be said that the Supreme Court's use of the phrase "creates and disseminates a false and defamatory impression" rules out future dissemination. Particularly is this so when viewed in relation to the Court of Appeals decision in Codd, which noted that the report placed Velger "`between the devil and the deep blue sea'; he loses whatever his choice. Who would employ an applicant who refused to give authorization? Who would employ one who gives authorization but whose file suggests that he made an `attempt' at suicide?" ( Velger v Cawley, 525 F.2d 334, 336).
The present petitioner has specifically denied the charges made against him.
In my view, the correct rule is that stated by the Supreme Judicial Court of Massachusetts in Stetson v Board of Selectmen ( 369 Mass. 755, 762), which held the employee entitled to a hearing "if those charges have been or are likely to be disseminated either to members of the public or to prospective employers." Similar decisions are to be found in Smith v Pima County Law Enforcement Council ( 113 Ariz. 154, 158 [employee entitled to a hearing on charges which "will undoubtedly have considerable negative influence upon any agency to which he might apply for a law enforcement position in the future"]) and in a number of Federal cases ( Ledford v Delancey, 612 F.2d 883, 886 ["plaintiff 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"]; Mazaleski v Treusdell, 562 F.2d 701, 712 ["where the government * * * makes certain information available to prospective employers"]; Clark v Mann, 562 F.2d 1104, 1116 ["where derogatory reasons for nonrenewal are incorporated into a record made available to a prospective employer or are publicly announced"]; Churchwell v United States, 545 F.2d 59, 62 ["`announced publicly or are incorporated into a record made available to prospective employers'"]; Cato v Collins, 539 F.2d 656, 660 [same]; Buhr v Buffalo Public School Dist. No. 38, 509 F.2d 1196, 1199 [same]; see McGhee v Draper, 564 F.2d 902, 910, n 6 ["the danger of future disclosure damaging to employment possibilities * * * must be considered"]; Doe v United States Civ. Serv. Comm., 483 F. Supp. 539, 571 ["`courts should relax the rigid publication requirement when the content of the allegedly false finding and the manner in which it is preserved creates a great potential for damaging disclosure'"]; Doe v Anker, 451 F. Supp. 241, 252, n 18, remanded without opn sub nom. Doe v Sandner, 614 F.2d 1286, cert den 446 U.S. 986 [same]; contra Green v Board of School Comrs., 716 F.2d 1191, 1193 [employee not entitled to relief where he can control the kind and amount of information released]).
Both logic and the great weight of authority dictate that petitioner be accorded the hearing he seeks in view of the nature of the charges, the agency's policy with respect to disclosure and petitioner's specific denial. I would, therefore, reverse and remand for a hearing.