unflattering or defamatory but carry a serious stigma such as dishonesty, immorality, or thoroughly unprofessional conduct." Dziewior v. Marengo, 715 F.Supp. 1416, 1424 (N.D. Ill. 1989). The February 5 letter contains an allegation relating to Ms. Wright's purchasing practices and says "two of the purported signatures contained on the purchase order . . . are not the signatures of those individuals, nor anyone authorized by them to sign on their behalf." (cplt. ex. A). This allegation, suggesting that plaintiff forged signatures to authorize purchases, is clearly one of dishonesty. Thus, we reject defendants' assertion that the February 5 letter articulated reasons that "are not the type of charges which attack plaintiff's reputation or good name." (Defts' Memo. in Support of Motion to Dismiss, p.9). We have no difficulty accepting that a public charge of forgery could foreclose employment opportunities for Wright.
The question remains, however, whether plaintiff has sufficiently alleged that the stigmatizing material was made public, so as to implicate a liberty interest in future employment. Plaintiff claims that the February 8 scene and the February 5 letter are inseparable, and should be viewed together to satisfy the publication requirement. Plaintiff is primarily relying on the charges in the February 5 letter to show defamation and stigma, and on the February 8 scene to show publication. The effects on plaintiff's liberty interest of the February 8 scene and the February 5 letter will be analyzed separately.
Wright alleges that many people were present at the February 8 scene where she was allegedly called a "bitch" by Thomas, and that this scene satisfies the publication requirement. Even assuming that it was sufficiently "public", however, there is no allegation that anything false and defamatory was said by Thomas.
Without allegations of falsity there can be no defamation, and thus there can be no liberty deprivation. Codd, 429 U.S. at 627, 97 S. Ct. at 884. Further, while perhaps humiliating and offensive, there are no allegations that the February 8 scene involved such stigma as dishonesty, immorality or thoroughly unprofessional conduct. Nothing that was alleged to have happened, including being called a "bitch" in front of others, can be viewed as attributing this type of stigma to plaintiff.
Thus, the February 8 scene fails to support a claim for deprivation of a liberty interest in future employment or otherwise.
Next, we look to the circumstances surrounding the delivery and potential dissemination of the February 5 letter. We note that "'the State remains free to terminate or decline to rehire a nontenured employee for no reason at all or for stigmatizing, even false reasons privately stated.'" Ratliff, 795 F.2d at 627 n.4, quoting Dennis v. S & S Consolidated Rural High School District, 577 F.2d 338, 343 (5th Cir. 1978). To state a claim, then, plaintiff must allege that the February 5 letter was made public. Bishop v. Wood, 426 U.S. at 348, 96 S. Ct. at 2079; Shlay v. Montgomery, 802 F.2d 918, 924 (7th Cir. 1986). Publicity does not have to be widespread for defamatory material to deprive an individual of a protected liberty interest. An allegation that the stigmatizing information has been placed in a file to which other employers could have access might withstand a motion to dismiss. See D'Acquisto, 640 F.Supp. at 611 ("Plaintiffs allege that the reasons for a suspension go into their departmental personnel files and indeed remain there for five years regardless of the outcome of their hearings. They further allege that other law enforcement agencies have access to these files."); see also Doe v. United States Dept. of Justice, 243 App. D.C. 354, 753 F.2d 1092, 1113, n.24 (D.C. Cir. 1985) ("The 'public disclosure' requirement would also be satisfied if the Department placed Doe's termination memorandum in her personnel file and made that file available, even on a limited basis, to prospective employers or government officials."); But see Clark v. Maurer, 824 F.2d 565, 567 (7th Cir. 1987); see also Ceko v. Martin, 753 F.Supp. 1418, 1427 (N.D. Ill. 1990) (police department did not create a barrier to future employment by placing the allegedly stigmatizing information in personnel file; motion to dismiss granted).
Thus, in order to state a claim plaintiff must allege, at a minimum, that the false charges in the February 5 letter were somehow made public by the defendants. The closest plaintiff comes to such an allegation is by suggesting that the "public" nature of the February 8 scene serves to make public the allegedly defamatory letter. However, absent an allegation that the charges in the letter were somehow communicated at the February 8 scene, the February 8 scene cannot be the basis for an allegation that the false charges were communicated.
Plaintiff's failure to allege that the false charges in the letter were made available by the defendants, or have the potential to become available
to anyone other than plaintiff herself, is fatal to her claim that the letter has deprived her of a protected liberty interest. See Loudermill, 470 U.S. at 547 n.13, 105 S. Ct. at 1496 n.13; see also Rodez v. Maywood, 641 F.Supp. 331, 335 (N.D. Ill. 1986).
With a sufficient allegation of publication there may have been a question of fact on the likelihood of impact on employment opportunities. Without it plaintiff has failed to state a claim for deprivation of a liberty interest.
III. Process Due to Plaintiff
Under the circumstances, since we have decided that plaintiff has failed to state a claim for deprivation of either property or liberty interests, there is no process due the plaintiff. However, since defendants maintain, in any event, that plaintiff has received due process, we will address the process due, assuming plaintiff had stated a claim for deprivation of her liberty interests.
The extent that notice and hearing are required under due process varies according to the private interest to be protected and the nature of the government function involved. Zaky, 793 F.2d at 840. If the state threatens an individual's property or liberty interest, the due process remedy is the right to an opportunity to try to prevent the deprivation by a fair hearing to clear her name. D'Acquisto at 608; Kukla v. Antioch, 647 F.Supp. 799, 812 (N.D. Ill. 1986); Doe, 753 F.2d at 1113.
A name-clearing hearing "is an opportunity which must be granted at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965). In Hostrop v. Board of Junior College Dist., 471 F.2d 488 (7th Cir. 1972), cert. denied, 411 U.S. 967, 93 S. Ct. 2150, 36 L. Ed. 2d 688 (1973), the court found that "the resolution of these interests requires that plaintiff be given a notice of the charges against him, notice of the evidence upon which the charges will be based, a hearing before a tribunal possessing apparent impartiality, and a chance to present witnesses and confront adverse evidence at the hearing." Hostrop, 471 F.2d at 495.
Defendants point out that plaintiff has already received two "hearings" and, therefore, that she has received the process she is due. Plaintiff, on the other hand, claims that the hearings were constitutionally inadequate because the hearings consisted of nothing more than the plaintiff narrating her denial of the charges, because no evidence (other than the charges themselves) was presented against her by CCC, and because no determination was made by the decisionmaker of whether the charges in the February 5 letter were true or false.
A name-clearing hearing is:
an opportunity to counter the stigmatizing remarks made by his [or her] potential employer. It is of primary importance to remember that a name-clearing hearing is not a hearing to argue the merits of the defendants' decision not to hire the plaintiff, but to allow the plaintiff an opportunity to refute the stigmatizing charges in an atmosphere comparable to the circumstances surrounding the dissemination of the original stigmatizing charges.
Dziewior, 715 F.Supp. at 1424 (citation omitted); Roth, 408 U.S. at 573 n.12, 92 S. Ct. at 2707 n.12.
Dziewior suggests that a general, narrative statement refuting the stigmatizing allegations is sufficient to satisfy the due process name-clearing requirements. Dziewior, 715 F.Supp. at 1425. Nevertheless, the hearing must be meaningful, providing at least an initial check against a mistaken decision to terminate or suspend an employee. D'Acquisto, 750 F.Supp. 342, 348 (N.D. Ill. 1990) ("D'Acquisto II").
Plaintiff alleges that the hearing was a sham, in which no decision was reached. We read plaintiff's complaint, with reasonable inferences, as denying that she received a meaningful or fair hearing.
Deciding the meaningfulness, the fairness, or the impartiality of the hearings, among other things, would be inappropriate on a motion to dismiss were plaintiff to have otherwise stated a claim, which she has failed to do.
For the above reasons, we grant defendants' motion to dismiss.