January 1997

UNIVERSITY OFFICIAL'S POST-TERMINATION STATEMENTS CAN SUPPORT DUE PROCESS CLAIM OF FIRED ATHLETIC COACH

The Ninth Circuit Court of Appeals recently ruled that a public employer's post-termination statements can support the due process claim of a terminated employee, as long as the statements are so closely related to the discharge from employment that the discharge itself may become stigmatizing in the public eye. (Campanelli v. Bockrath (November 22, 1996) 96 Daily Journal D.A.R. 14033.)

In 1993, plaintiff, Louis Campanelli, was fired from his job as head coach of the men's basketball team at the University of California. University officials initially declined to state the reasons for the coach's termination, but later the Athletic Director told the press that he had recommended the termination after overhearing the coach's postgame speech to his players following a loss. According to the Athletic Director, the speech was "profane and abusive" and the criticism of the players was of a "personal nature." The University Vice Chancellor also told reporters that the coach put so much pressure on the players that a few became physically ill, and that he was tearing them down psychologically.

Campanelli filed a civil rights action against University officials rooted in the Fourteenth Amendment principle that a state may not deprive a person of his liberty interest "to engage in any of the common occupations of life" without due process of law. Campanelli claimed he was entitled to a hearing to clear his name at or near the time of his termination. He further claimed that such a hearing could have mitigated the effect of the defendants' statements, which he complained made it impossible for him to secure a new job as a basketball coach.

The United States Supreme Court has held that a public employer can be held liable for a procedural due process violation for terminating an employee if, in the course of the termination, the employer (1) makes a charge that might seriously damage the terminated employee's standing in the community or (2) imposes a stigma on the employee that forecloses his freedom to take advantage of other employment opportunities. (Board of Regents v. Roth (1972) 408 U. S. 654.) The Supreme Court said that the requisite stigma could result from a charge of "dishonesty" or "immorality."

In Campanelli's case, the Ninth Circuit held that the facts alleged in the complaint gave plaintiff at least a fair chance of proving that the defendants placed a stigma on him by charging him with immoral conduct by abusing the young men entrusted to his care and supervision.

The court also ruled that Campanelli had satisfied the requirement that the stigmatizing statements be made "in the course of the termination." When defamatory statements are so closely related to discharge from employment that the discharge itself may become stigmatizing in the public eye, the requirement is met. Here, the statements were made within one week of Campanelli's termination, which the court found could be within a sufficient temporal nexus between the employer's statements and the termination to have been made "in the course of the termination."

Finally, under Roth, the plaintiff must allege that the defendants' statements were substantially false. Here, the court held that whether defendants' alleged characterization of events is substantially false is an issue of fact that should be decided at trial on the basis of the evidence.

This decision should serve as a reminder that public employers must exercise extreme caution when making any statements before, during, or soon after an employee's termination. Public employers should refrain from making any public comments regarding the terminated employee's "dishonesty" or "immorality." Such comments could be held to deprive the person of their liberty interest "to engage in any of the common occupations of life" without due process of law, requiring that the employee receive a name-clearing hearing.

If you have any questions concerning this decision, please contact one of our offices.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Generously provided by: Lozano Smith Smith Woliver & Behrens

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