punitive damages are available against a municipality under §
1981, simply concluded, without citing any legislative history,
that the same preservation of municipal immunities found by the
Fact Concerts court in the deliberations of the 42d Congress with
regard to § 1983 could not be imputed to the legislators enacting
§ 1981. The court's reasoning was that § 1981, and the Thirteenth
Amendment on which it is based, were broadly intended to
eradicate all badges of slavery, both public (state and
municipal) and private. However, we agree with the First Circuit
in Heritage Homes that this argument is untenable in light of
Monell's elimination of municipal immunity under § 1983. The
Monell-Fact Concerts result — that a municipality is not liable
for punitive damages under § 1983 even though it can be sued
under § 1983 — disposes of the Boyd court's argument that a
municipality must be liable for punitive damages under § 1981
because it can be sued under § 1981.
Accordingly, we grant the motion to dismiss the claim for
punitive damages against the City and its officials sued in their
official capacities under § 1981.
6. Constitutional Defamation
Defendants argue that plaintiff has not stated a constitutional
defamation claim because the alleged defamation did not take
place in conjunction with his termination.
It is well established that defamation alone is not actionable
under § 1983 even though carried out under color of state law.
Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405
(1976). However, stigma to reputation, when found in conjunction
with discharge or failure to rehire, raises a constitutional
liberty interest which may not be abridged without notice and a
hearing sufficient to give the aggrieved party a chance to clear
his name. Colaizzi v. Walker, 542 F.2d 969, 973 (7th Cir. 1976),
cert. denied, 430 U.S. 960, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977);
see also Smith v. Board of Education of Urbana School District
No. 116 of Champaign County, Illinois, 708 F.2d 258 (7th Cir.
The issue in this case is whether the alleged defamation
occurred close enough in time to be linked, for purposes of the
Fourteenth Amendment, to plaintiff's termination. In his
complaint, plaintiff acknowledges that the defamatory remarks
were made "after" the termination, see ¶ 26, but he doesn't say
how long after. It is apparent, though, that the alleged
defamation related to the reasons for plaintiff's termination.
We have not found a case which decides whether a claim for
"stigma-plus" test has stated that the termination and the
defamation must be simultaneous. In Paul v. Davis, supra, the
Supreme Court stated that "the defamation had to occur in the
course of the termination of employment." 424 U.S. at 710, 96
S.Ct. at 1165, emphasis supplied. The Seventh Circuit has used
phrases such as "in conjunction with," Colaizzi v. Walker, supra,
at 973; "accompanied by," id.; "in the process of," Margoles v.
Tormey, 643 F.2d 1292, 1298 (7th Cir.), cert. denied,
452 U.S. 939, 101 S.Ct. 3082, 69 L.Ed.2d 954 (1981); "in the course of,"
Elbert v. Board of Education of Lanark Community Unit School
District # 305, Carroll County, Illinois, 630 F.2d 509, 512 (7th
Cir. 1980), cert. denied, 450 U.S. 1031, 101 S.Ct. 1741, 68
L.Ed.2d 226 (1981); and "in connection with," Austin v. Board of
Education of Georgetown Community Unit School District No. 3 of
Vermilion County, Illinois, 562 F.2d 446, 449 (7th Cir. 1977).
Therefore, we decline to lay down an absolute rule that a § 1983
stigma-plus claim cannot be stated where the alleged defamation
occurred subsequent to the termination.
The purpose of providing a hearing to a terminated employee who
has been defamed is so that the employee's future job
possibilities and standing in the community will not be damaged.
Although public employers may fire at-will employees without
giving a reason, they may not, without affording due process,
accompany that firing with the release of information which would
make it virtually impossible for the employee to find new
employment in similar positions or which would seriously
stigmatize the employee in the eyes of his community. Smith v.
Board of Education, supra. Given this purpose, we do not believe
that a public employer may be excused from affording due process
to an employee whose reputation the employer damages simply
because the employer waits for a period of time after terminating
the employee to make defamatory remarks. The damage to the
individual is the same whether the defamatory information is
released simultaneously with the firing or some period of time
afterwards. Where, as here, the defamatory remarks relate to the
termination, we believe that the "in the course of," "in
conjunction with," "accompanied by," "in the process of," "in the
course of," and "in connection with" tests can be met even though
some period of time passes between the termination and the
publication of the defamatory remarks. Although plaintiff's
complaint does not specify how much time elapsed here, there is
no indication that the time span was unreasonably long. On a
motion to dismiss a pro se complaint, we will not require that
the time span be pled. If it develops that the time between the
termination and the defamation was so long as to attenuate any
link between the two, we can dispose of that issue on a motion
for summary judgment. For now, though, we are unwilling to hold
that a claim cannot be stated unless the termination and the
defamation were simultaneous where, as here, the later defamation
clearly relates back to the termination.
For the reasons stated, we deny the motion to dismiss the age
discrimination claim; we reserve judgment pending further
briefing on the motion to dismiss the individual defendants; we
grant the motion to dismiss any prayer for compensatory and
punitive damages under Title VII and the Rehabilitation Act of
1973; we grant the motion to dismiss the complaint to the extent
it seeks to enjoin federal officials from disbursing revenue
sharing money to the City; we grant the motion to dismiss to the
extent the complaint seeks punitive damages under 42 U.S.C. § 1981
and 1983 against the City and its officers acting in their
official capacities; and we deny the motion to dismiss the
complaint to the extent it alleges deprivation without due
process of a constitutional liberty interest.
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