The Lawletter Vol 40 No 12
In a recent case involving the Kansas University and City of Lawrence ticket-fixing scandal, wherein traffic tickets were allegedly dismissed in exchange for tickets to university athletic events, a city employee, an African-American, who had been terminated as a result of the investigation into the scandal, brought claims for race discrimination and the violation of his due process liberty interests. Monroe v. City of Lawrence, Kan., Case No. 13-2086-EFM, 2015 WL 5006081 (D. Kan. signed Aug. 20, 2015). The court engaged in the usual burden-shifting analysis on the race discrimination claim, concluding that although the employee had clearly shown that he had been treated differently from a similarly situated white employee, he had failed to raise a disputed question of fact on the issue of motive, because he had not shown that the City's reasons were pretextual.
The court then went on to the interesting due process question raised by the employee's claim, that the "termination report" filed by the City violated his liberty interest by foreclosing employment opportunities in his field. The court concluded that the viability of the claim rested on whether the report constituted "publication." First the court noted that the City was required by statute to submit the report to the Kansas Commission of Peace Officers' Standards and Training. It then noted that although the statute purports to provide absolute immunity for reporting, the City had abandoned that argument in light of Supreme Court precedent stating that state law cannot immunize conduct that is wrongful under federal law. The question therefore came down to whether the report constituted publication, as required to make out a claim, or merely intragovernmental dissemination, which falls short of publication.
The employee argued that the report constituted publication because it was available to prospective employers, but the court found the legal character of the report to be unsettled. It explained that the Tenth Circuit had not yet considered whether public dissemination, that is, publication, occurs when a mandatory report to another governmental agency is made and that the authority in the circuit on intragovernmental dissemination was underdeveloped. It further noted that the district court itself had reached conflicting conclusions on the issue of obligatory termination reports.
In the end, the court failed to address the conflict, because, even assuming publication, the employee could not support his liberty interest claim. He had clearly received an adequate name-clearing hearing, and nothing more was required by due process.