For the Eastern District of Pennsylvania


Kraig Graham,



City of Philadelphia,



Civil Action No. 02-7794


2003 U.S. Dist. Lexis 12146


July 9, 2003, Decided 

July 9, 2003, Filed




Berle M. Schiller, J.




   The pertinent facts for purposes of ruling on Plaintiff’s motion for summary judgment are undisputed. While employed for a probationary period by the Police Department as a police officer in December 2001, Mr. Graham was arrested and charged with statutory sexual assault and corrupting the morals of a minor. On the same date as his arrest or shortly thereafter, and without affording Plaintiff a hearing, the Philadelphia Police Department terminated Plaintiff’s employment. After his termination, Plaintiff requested a name-clearing hearing, but that request was denied. In June 2002, Mr. Graham was acquitted of the criminal charges against him.


   On October 9, 2002, Plaintiff commenced the instant action against Sylvester Johnson, Commissioner of the Philadelphia Police Department, and John Cerrone, Captain of the 12th District of the Philadelphia Police Department. Defendants moved to dismiss, arguing that as a probationary employee Plaintiff did not have a protectible property interest in his employment, and, therefore, was not entitled to a name-clearing hearing as a matter of law. After I denied Defendants’ motion in a Memorandum and Order dated March 5, 2003, Plaintiff amended his complaint, adding the City as a Defendant and voluntarily dismissing the individual Defendants. Thereafter, the parties conducted discovery.





   Summary judgment is appropriate when the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In reviewing the record, “a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.” Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). The moving party bears the burden of showing that the record reveals no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See FED. R. CIV. P. 56(c); Anderson, 477 U.S. at 247. Once the moving party has met its burden, the non-moving party must go beyond the pleadings to set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e) ; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). “There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson, 477 U.S. at 249. “Such affirmative evidence -- regardless of whether it is direct or circumstantial -- must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.” Williams v. Borough of W. Chester, 891 F.2d 458, 460-61 (3d Cir. 1989).





   A more detailed analysis of the law applicable to name-clearing hearings is included in my Memorandum and Order of March 5, 2003, and, for present purposes, I will confine the discussion to those issues raised in Plaintiff’s motion for summary judgment and Defendant’s opposition. [Prior ruling at 249 F.Supp.2d 563, 2003 U.S. Dist. Lexis 3443]


   In moving for summary judgment, Plaintiff points out that it is undisputed that: (1) the City terminated his employment amidst charges of illegal and immoral conduct; (2) the City made public statements about his arrest and firing; (3) Plaintiff’s reputation has been seriously damaged and employment opportunities have been foreclosed; and (4) Plaintiff contends that the charges against him are false.


   In order to make out a claim for a name-clearing hearing under Third Circuit caselaw, Plaintiff must show a stigma to his reputation plus some concomitant infringement of a protected right or interest. See Ersek v. Township of Springfield, 102 F.3d 79, 83 n.5 (3d Cir. 1996). In the Memorandum and Order denying the motion to dismiss, I found that the “plus” element is satisfied in this case, and, there being no dispute that Plaintiff has suffered a stigma to his reputation, Mr. Graham has thus made both showings. Additionally, the Third Circuit has emphasized that in order for a name-clearing hearing to serve a useful purpose there must be a factual dispute that “has some significant bearing on the employee’s reputation.” Ersek, 102 F.3d at 84 (citing Codd v. Velger, 429 U.S. 624, 627, 51 L. Ed. 2d 92, 97 S. Ct. 882 (1977)). This requirement is also met; Plaintiff vigorously argues that he did not commit the crimes with which he was charged. Moreover, under the more detailed standards developed in other circuits, the facts at issue in the instant case establish Plaintiff’s entitlement to a name-clearing hearing. See Hammer v. City of Osage Beach, 318 F.3d 832, 839-40 (8th Cir. 2002) (“To establish the deprivation of a liberty interest, a public employee must make a three-part showing: (1) that the public employer’s reasons for the discharge stigmatized the employee, seriously damaging his or her reputation or by foreclosing other employment opportunities; (2) that the employer made the reasons for the discharge public; and (3) that [the] employee denied the charges that led to the discharge.”); Ludwig v. Bd. of Trs. of Ferris State Univ., 123 F.3d 404, 410 (6th Cir. 1997) (setting forth five factors that must be shown in order to establish entitlement to name-clearing hearing).


   Defendant contends that Plaintiff is not entitled to summary judgment because he has not shown that he was defamed by the City. Specifically, Defendant argues that Plaintiff is not entitled to a name-clearing hearing unless he proves that the City has committed an act or acts of defamation under Pennsylvania law. In this regard, the City correctly notes that courts have referred to claims for name-clearing hearings as claims for relief as a result of “defamation by a state official.” See, e.g., Guarino v. Larsen, 11 F.3d 1151, 1156 (3d Cir. 1993) . Such statements apparently arise from dicta in the Supreme Court’s opinion in Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). However, and more importantly, the City has not cited -- nor has the Court’s research revealed -- precedent that expressly incorporates the elements of a state law defamation claim as requirements for establishing the right to a name-clearing hearing, rendering the City’s argument untenable. Cf., e.g., Puchalski v. Sch. Dist. of Springfield, 161 F. Supp. 2d 395, 405-10 (E.D. Pa. 2001) (analyzing name-clearing hearings and state law defamation claims independently). n1


   Lastly, the City argues that Mr. Graham has already been afforded a name-clearing hearing in the form of a criminal trial that resulted in his acquittal. This argument is without merit. As the Supreme Court has stated, “an acquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt.” United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361, 79 L. Ed. 2d 361, 104 S. Ct. 1099 (1984). That is, the purposes of a criminal trial and a name-clearing hearing are distinct, and the former cannot fairly be taken to obviate the need for the latter.





   Accordingly, I conclude that Plaintiff is entitled to a name-clearing hearing and grant Plaintiff’s motion for summary judgment. An appropriate Order  follows.





   AND NOW, this 9th day of July, 2003, upon consideration of Plaintiff Kraig Graham’s Motion for Summary Judgment and Defendant City of Philadelphia’s response thereto, and for the foregoing reasons, it is hereby Ordered that:


1. Plaintiff’s Motion for Summary Judgment (Document No. 17) is granted.


2. By July 18, 2003, the parties shall advise the Court whether they have reached an agreement with respect to the procedures to be employed during the name-clearing hearing.


3. Plaintiff shall have until July 21, 2003 to file any motion for attorney’s fees.


4. Plaintiff’s Motion for Leave to File a Reply Brief (Document No. 19) is denied as moot.


5. Plaintiff’s Motion In Limine (Document No. 20) is denied as moot.


   By the Court:


   Berle M. Schiller, J.




1. The City’s argument in favor of adopting the Pennsylvania law of defamation may relate to a factual contention -- never fully explained -- that the Philadelphia District Attorney’s office, and not the Philadelphia Police Department, made stigmatizing comments about Plaintiff. Exhibit 2 to Plaintiff’s Motion for Summary Judgment casts doubt on any such contention. Furthermore, Defendant does not dispute that Plaintiff’s arrest and termination, and the charges that gave rise to his arrest and termination, were publicly reported. Whether these reports are attributed to the police department or the prosecutor’s office, Plaintiff’s motion should be granted; the conduct of either is attributable to Defendant. See Carter v. City of Philadelphia, 181 F.3d 339, 349-50 (3d Cir. 1999).