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ZUREK v. HASTEN.

United States District Court, Northern District of Illinois, E.D


December 15, 1982

KENNETH ZUREK, PLAINTIFF,
v.
MICHAEL HASTEN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Kenneth Zurek ("Zurek") has filed this action against officials and employees of the Illinois Commerce Commission ("ICC"),*fn1 charging an array of torts and civil rights violations in connection with Zurek's discharge as an ICC accountant. Defendants have moved to dismiss all five counts of Zurek's current amended complaint filed July 22, 1982 (the "Complaint"). This opinion deals only with Counts II, III and IV:*fn2

    1. Count II, brought under 42 U.S.C. § 1983
  ("Section 1983"), charges that defendants'
  stigmatization of Zurek in connection with his
  discharge infringed Zurek's constitutionally
  protected liberty interests by foreclosing him from
  other employment opportunities.

    2. Count III is a pendent state law defamation
  claim.

    3. Count IV asserts the pendent tort claim of
  retaliatory discharge.

For the reasons stated in this memorandum opinion and order, defendants' motion is denied as to each of those counts.

Count II

Count II asserts Zurek was deprived of his constitutionally protected "liberty" because a derogatory letter placed in Zurek's personnel file*fn3 allegedly foreclosed, as the Court put it in Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972), "his freedom to take advantage of other employment opportunities." Specifically, Count 11 ¶¶ 11-12 allege the letter and the circumstances of his termination bar Zurek from Internal Revenue Service ("IRS") employment, and Count II ¶ 16 asserts Zurek's actual inability to obtain other professional employment since his termination.

Though Opinion I found comparable allegations sufficient to state a Section 1983 claim, defendants nevertheless advance several reasons for dismissing Count II:*fn4

    1. Zurek did not adequately allege the
  stigmatizing information was publicized.

    2. Zurek did not allege defendants' actions
  actually precluded him from securing employment.

    3. Zurek failed to request, and thus was never
  denied, a "name clearing" hearing.

    4. Zurek failed to attach a copy of Dimmick's
  letter as an exhibit to the Complaint.

None of those arguments warrants departure from Opinion I's ruling.

As to the public disclosure issue, the Complaint does seem to look in two directions. Count II ¶ 6 refers to the offending letter as having been put "in general circulation," but there is no specific allegation of delivery (either of the document or its contents) to any prospective employer. In much the same way, it is unclear whether Zurek's inability to obtain IRS employment is the product of actual unsuccessful applications consequent on the stigmatizing disclosure, or rather simply a prediction of that possibility (see Count II ¶ 12, which reads like the latter, and Count II ¶ 14, which states clearly premature claims of expected effects on Zurek's career as a lawyer).

What saves Zurek is the necessary drawing of inferences most favorable to him (appropriate on a motion to dismiss). So taken, Count II suggests defendants actually divulged the stigmatizing information to the IRS and are also willing to disclose it to any other prospective government employer. As Larry v. Lawler, 605 F.2d 954, 958 (7th Cir. 1978) makes clear, such potential government-wide disclosure would satisfy any requirement of public dissemination.*fn5

Those same allegations, coupled with the same favorable inferences, meet the pleading requirement of "tangible" loss, Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1161, 47 L.Ed.2d 405 (1976), that must accompany the stigma: foreclosure of (as distinct from mere interference with) employment opportunities. Zurek's claimed inability to obtain any government employment would be a deprivation of constitutionally protected liberty interests under Larry, 605 F.2d at 958.*fn6

Nor does Zurek's failure specifically to request a "name clearing" hearing jeopardize his liberty deprivation claim. As soon as they were aware of this action (it was filed one day before Zurek's actual termination), defendants were aware of his desire for an opportunity to rebut the charges underlying his discharge. Despite that knowledge, defendants have never offered Zurek such an opportunity. Absent some showing that a particular form of request is necessary, defendants' inaction must be viewed as tantamount to a refusal to afford a "name clearing" hearing. And as defendants concede, denial of such a hearing infringes the Due Process Clause (assuming a protected liberty interest has been impaired). See Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 884, 51 L.Ed.2d 92 (1977) (per curiam).

Finally, Zurek's failure to annex Dimmick's allegedly stigmatizing letter to the Complaint is not fatal. Federal (unlike Illinois state) pleading does not impose such a requirement. Indeed, if Zurek's allegations as to the nature of the letter are accurate, it would be most unfair to force its public disclosure by making it part of the pleadings (an absolutely privileged vehicle for possible defamation and stigmatization).*fn7

Count II thus survives defendants' renewed attack. Their motion for its dismissal is denied.

Counts III and IV

Counts III and IV are pendent state tort claims, respectively asserting defamation and retaliatory discharge. At the threshold defendants assail both counts on sovereign immunity grounds, contending this action is effectively directed against the State of Illinois itself in violation of Ill.Rev.Stat. ch. 127, § 801. That position is obviously unsound, for (1) defendants' claimed wrongful acts allegedly exceeded their authority and (2) the relief sought by Zurek (individual damages against defendants) would not "control the operations of the State or subject it to liability." See Hoffman v. Yack, 57 Ill. App.3d 744, 748, 15 Ill.Dec. 140, 144, 373 N.E.2d 486, 490 (5th Dist. 1978).*fn8 This opinion turns, then, to claimed defects in the individual Counts.

1. Count III

As to Zurek's defamation-based claim defendants assert:

    1. Any defamatory statements are absolutely
  privileged under McLaughlin v. Tilendis,
  115 Ill. App.2d 148, 153, 253 N.E.2d 85, 86-88 (1st
  Dist. 1969), absent any allegation they were made
  to private individuals.

    2. Zurek failed to plead "actual malice," a
  vital element of any defamation claim against a
  public official. New York Times Co. v. Sullivan,
  376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11
  L.Ed.2d 686 (1964).

Neither contention has merit.

First, McLaughlin itself recognizes, 115 Ill.App.2d at 152, 253 N.E.2d at 87 (quoting Cook v. East Shore Newspapers, Inc., 327 Ill. App. 559, 577-78, 64 N.E.2d 751, 759-60 (4th Dist. 1945)) the absolute privilege extends only to a narrow category of communications, including those "made in the discharge of a duty under express authority of law, or to heads of the executive departments of the State, and matters involving military affairs." True enough, Dimmick's letter and other derogatory statements by defendants in deciding whether to terminate Zurek may have been expressly authorized by state law. But any dissemination of such defamatory information to outsiders (including IRS officials) is not similarly sanctioned (or more accurately, defendants have not identified any state law so doing). See Yack, 57 Ill.App.3d at 748-49, 15 Ill.Dec. at 144, 373 N.E.2d at 490 (defendant's false accusation not privileged because not in furtherance or within the scope of his duties as supervisor).

Defendants' second argument is equally fallacious, because its premise — that Zurek is a "public official" for First Amendment purposes — is mistaken. Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), the most recent Supreme Court exposition of that nebulous term, put the question in two ways:

    1. whether the government employee has, or
  appears to the public to have, "substantial
  responsibility for or control over the conduct of
  governmental affairs" (id. at 85, 86 S.Ct. at 676);
  and

    2. whether the employee's "position in
  government has such apparent importance that the
  public has an independent interest in the
  qualifications and performance of the person who
  holds it, beyond the general public interest in
  the qualifications and performance of all
  government employees" (id. at 86, 86 S.Ct. at 676).

Zurek simply does not fall within either contour of the public official profile.*fn9

Perhaps defendants could establish (as they urge) Zurek was a significant evidentiary source as an expert witness in some ICC rate proceedings. But lacking either prosecutorial or adjudicatory responsibility, Zurek did not have "substantial responsibility for or control over" the conduct or resolution of those cases. By the same token, Zurek plainly did not have "apparent importance" arousing public interest greater than that regarding the typical government employee.

Our Court of Appeals' liberal construction of the "public official" doctrine in Meiners v. Moriarity, 563 F.2d 343, 351-52 (7th Cir. 1977) is clearly distinguishable. Moriarity bestowed "public official" status on federal narcotics agents because their "decisions to search and to arrest directly and personally affect individual freedoms," 563 F.2d at 352 (emphasis added). At most Zurek's involvement in the rate proceedings had only an indirect economic impact on the general public (even assuming his testimony influenced the disposition of these cases).

Accordingly Count III withstands defendants' Fed.R.Civ.P. 12(b)(6) challenge. It too must be answered.

2. Count IV

Defendants urge a retaliatory discharge claim can be brought only against an employer (here the ICC) and not against the individuals responsible (the individual defendants). However none of the handful of Illinois cases involving the retaliatory discharge tort has foreclosed this possibility. In fact, in the one reported lawsuit brought against both the employer and the "retaliating" supervisor, Rozier v. St. Mary's Hospital, 88 Ill. App.3d 994, 44 Ill.Dec. 144, 411 N.E.2d 50 (5th Dist. 1980), the Appellate Court, though dismissing the case on a variety of grounds, passed up the opportunity to confine this tort to employers.

Moreover, it would distort normal tort doctrine, once a cause of action is recognized, to impose liability on a wrongdoer's principal but not on the wrongdoer himself. And at least two other policy reasons support the normal concept of individual responsibility here:

    1. Deterrence — always a goal of intentional
  tort liability — would be better served if both
  the active wrongdoer and the employer were assessed
  with joint and several responsibility.

    2. Even more important here, if and to the
  extent sovereign immunity would insulate
  government employers from liability, any government
  employee who has been terminated on grounds
  offensive to public policy would have no remedy for
  that wrong unless the responsible co-employees
  could be sued.

Count IV also withstands dismissal.

Conclusion

Defendants' motion to dismiss is denied as to each of Counts II, III and IV. They are ordered to answer those Counts on or before December 30, 1982.


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