stigmatized by defendant. Summary judgment may be granted on that basis.
2. Was Plaintiff Foreclosed from Employment?
Plaintiff maintains that he is entitled to have a jury decide if stigmatizing statements made by Metro-North foreclosed him from other employment opportunities. This is true, of course, only if plaintiff has come forward with evidence sufficient to raise an issue of fact on this question. Plaintiff has not carried this burden.
As an initial observation, I note that plaintiff's showing must be that "a governmentally imposed stigma restricted his ability to seek and obtain employment." Quinn, 613 F.2d at 446. Therefore, to recover on his due process claim, plaintiff must demonstrate not only that he has had difficulty finding employment but also that such difficulty was due to the stigma allegedly placed upon him by Metro-North. See Conaway v. Smith, 853 F.2d 789, 795 (10th Cir. 1988); Nauta v. City of Poughkeepsie, N.Y., 610 F. Supp. 980, 985 n.24 (S.D.N.Y. 1985).
The undisputed evidence shows that since his termination, plaintiff has made only minimal efforts to find employment. During the first two years following his termination, plaintiff made no inquiries of prospective employers because he was preoccupied with defending himself against the criminal charges against him. Even if he had made such inquiries, plaintiff concedes that the indictment made him virtually unemployable as a police officer during its pendency.
Following his acquittal, defendant contacted the Ulster County civil service commission to explore the prospect of employment as a police chief in one of the several police departments in the County. He was told that he was not eligible for any of these positions because he lacked the requisite civil service status. The civil service requirements were applicable state wide, plaintiff was told. He therefore concluded that he would be unable to secure employment in any municipal police department and made no further efforts in that regard.
In 1991 or 1992, plaintiff alleges, he contacted Joseph O'Neill, an acquaintance at ConRail in Philadelphia, to ask about possible employment there. O'Neill told plaintiff that although he would probably hire plaintiff if a vacancy existed, there were no vacancies at ConRail, so he could not offer plaintiff a job. In his deposition, plaintiff, citing unnamed sources, voiced his suspicion that there was in fact an opening at ConRail and that someone else had been hired. Despite being given an opportunity to supplement the record, however, plaintiff was unable to name anyone who had told him of an opening at ConRail. The record thus contains no evidence cognizable under Rule 56, that is, no evidence beyond plaintiff's vague assertion not on personal knowledge, that the situation at ConRail was anything other than what was described by O'Neill. Such assertions are not sufficient to defeat summary judgment.
The attempts described above constitute the sum of plaintiff's pre-litigation efforts to secure employment after his termination by Metro-North.
Plaintiff maintains that he did not look further because Stangl, having been promoted to President of the Metropolitan Transit Authority, controlled all of the jobs connected to commuter railroad systems in the New York City area and his lack of civil service status barred him from all jobs with municipal police departments. Apparently, plaintiff felt himself limited to those two fields and never explored the possibility of employment in the private sector.
The record demonstrates that plaintiff has failed to carry his burden of establishing a genuine issue of material fact as to whether he has been foreclosed from employment opportunities by a stigma imposed by defendant. The undisputed evidence indicates that plaintiff has been unable to secure a job with a municipal police department not because of any stigma but because he lacks civil service status.
Similarly, the only cognizable evidence in the record reflects that ConRail's refusal to hire plaintiff was due to its lack of job openings rather than any negative opinion of plaintiff. Plaintiff argues that he was foreclosed from employment with all other commuter railroads, but he did not seek such employment and thus cannot possibly show that he was kept therefrom by any stigma. The same problem results from plaintiff's failure to seek security/police related employment in the private sector; because he did not seek such employment, he cannot show that it was denied him because of any action of defendant. Plaintiff maintains that he was not qualified for any job other than municipal or railroad police chief, but even were that true, it would not help him establish that he was foreclosed from employment by an alleged stigma. Quite the opposite, it would show that his difficulty in securing employment resulted not from any stigma but from the fact that there were no jobs available to him in his chosen field.
Overall, the evidence does not present a genuine issue of material fact as to whether plaintiff was foreclosed from employment by any stigma imposed by defendant. Plaintiff, therefore, fails to establish a constitutionally cognizable deprivation, and summary judgment may be granted on this ground.
B. Did Plaintiff Receive the Process that was Due?
As noted above, to state a due process claim, a plaintiff must not only show that he has suffered a deprivation of a constitutionally protected interest but also that the deprivation was effected without the process that was due. The question of whether an individual received the process that was due must be answered by balancing several factors. A court "must weigh the strength of the individual's interest, the risk of erroneous deprivation, the probable value, if any, of requested additional procedures and the state's interest in providing (or not providing) those procedures." Baden, 799 F.2d at 831 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976)). In cases such as this, where a government employee asserts that he has been stigmatized in the course of a decision to terminate his employment, the Supreme Court has held that the process due is that which provides the terminated employee with a meaningful opportunity to clear his name. Codd v. Velger, 429 U.S. 624, 627, 51 L. Ed. 2d 92, 97 S. Ct. 882 (1977). See also Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1046 (11th Cir. 1989).
Plaintiff here contends that he was deprived of due process by defendant's refusal to grant him a formal, pre-termination hearing on the issue of when he had informed Nelson of the videotape. This contention is unavailing for a number of reasons. First of all, at most, plaintiff was entitled to a post- termination hearing. As the Eleventh Circuit has stated, "Because [a hearing] is provided simply to cleanse the reputation of the claimant, the hearing need not take place prior to his termination or to the publication of related information adverse to his interests." Campbell v. Pierce County, Georgia, 741 F.2d 1342, 1345 (1984), cert. denied, 470 U.S. 1052, 84 L. Ed. 2d 818, 105 S. Ct. 1754 (1985). See also Baden, 799 F.2d at 830 ("In order to succeed on his liberty interest claim, Baden must also prove that Koch improperly refused to grant him a post-removal opportunity to refute the false charges that led to his removal") (emphasis added).
Secondly, a formal hearing, either pre-termination or post-termination, would not have afforded plaintiff any means beyond those already available to him to defend his reputation. This is so for two reasons. First, as plaintiff concedes, because media interest in his story was so intense, he had, and took advantage of, ready and pervasive access to the public to refute the allegations against him. Indeed, as the plethora of newspaper articles contained in the record demonstrates, plaintiff was not shy about publishing his version of events, and the media was more than willing to report it. In that respect, this case is strikingly similar to Baden, where the Court of Appeals observed that "with his high degree of access to the news media, Baden did not need a formal hearing as a forum in which to repeat his side of the story." 799 F.2d at 832. Also as in Baden, it was not only plaintiff who was telling plaintiff's story but defendant as well. Baden, 799 F.2d at 832. In media reports of plaintiff's firing, defendant confirmed that the Collective Bargaining Agreement imposed a thirty-day rule on disciplinary action. This further illustrates the de minimis utility of a name-clearing hearing. Id.
The second reason a hearing would have been of no value to plaintiff is that had any hearing been held, plaintiff would have had to admit that he had released "Bubba on Patrol" to the news media to pursue a personal vendetta and that he had willfully concealed this fact from Metro-North officials and the public. Thus, assuming a hearing would have cleared plaintiff of any inference that he condoned the activities shown in "Bubba on Patrol," it would simultaneously have revealed him to be a vindictive liar--hardly an improvement over the no-hearing situation.
Because I find that plaintiff had ample ability to refute the charges against him and that the additional procedures he seeks would have afforded him at best a theoretical to no advantage over the procedures he received, I conclude that plaintiff was granted all the process that was constitutionally required. Summary judgment may also be granted on this ground.
Defendant's motion for summary judgment is granted.
Dated: New York, New York
June 30, 1994
LORETTA A. PRESKA, U.S.D.J.