An F-5 general discharge is insufficient evidence of disparagement of character to require a name clearing hearing as part of termination of employment due process.
An F-5 general discharge is insufficient evidence of disparagement of character to require a name clearing hearing as part of termination of employment due process.
Special contributing author Laura Mueller, City Attorney for Dripping Springs
City of Fort Worth v. Joel Fitzgerald, Sr., No. 05-22-00327-CV (Tex. App.—Fort Worth, Feb. 8, 2023)(mem. op.).
In this appeal from a trial court’s denial of the city’s plea to the jurisdiction related to a plaintiff’s allegations of unconstitutional deprivation of liberty and property interests in his employment due to lack of a name clearing hearing, the Fifth Court of Appeals reversed the trial court’s denial of the city’s plea to the jurisdiction and dismissed the case for lack of jurisdiction.
The plaintiff, the Fort Worth police chief, sued the city after the city terminated his employment and announced his termination, including its reasons for termination, to the press. In addition, the city submitted his termination F-5 as a general discharge rather than an honorable discharge. He sued the city for violations related to deprivation of his property and liberty interest in his employment when the city did not offer him a name clearing hearing after: (1) announcing his termination reasons to the press; and (2) giving him a general discharge rather than an honorable discharged. The city filed a plea to the jurisdiction based on a lack of waiver of immunity since his allegations did not rise to the level of disparagement of character required for constitutional violations. The trial court denied the city’s plea to the jurisdiction and the city appealed.
“A public employer may unconstitutionally deprive its employee of a liberty interest if it discharges him under stigmatizing circumstances without giving the employee an opportunity to clear his name.” Caleb v. Carranza, 518 S.W.3d 537, 545 (Tex. App.—Houston [1st Dist] 2017, no pet.); Tex. Const. art. 1, § 19. Stigmatizing only occurs if the termination publicity causes a “badge of infamy” for instance if the termination publicity indicates dishonesty or criminal activity. If the stigmatization occurs then a name clearing hearing would obviate the cause of action. An F-5 general discharge is not stigmatizing. See Upshaw v. Erath County, Texas, 2019 WL 2341378, at *5 (N.D. Tex. June 3, 2019) (mem. op. & order). In addition, the city did not publicize that this dismissal was based on criminal activity or dishonesty but instead for poor performance which is not stigmatizing. The Court of Appeals granted the city’s plea to the jurisdiction and dismissed the plaintiff’s case because there was no evidence of stigmatization that would require a name clearing ceremony.
If you would like to read this opinion click here. Panel consists of Former Chief Justice Rose, and Justices Carlyle and Garcia. Opinion by Former Chief Justice Jeff Rose.
