Former Va. Police Officer Denied Hearing to Refute Charges

April 10, 2007 ( - The 4th Circuit U.S. Court of Appeals ruled that a probationary police officer fired for allegedly destroying city property is not entitled to a hearing to refute the charges in his personnel file because there was no likelihood any prospective employers or the public would ever see the file.

Circuit Judge Diana Gribbon Motz wrote in the opinion the former officer failed to prove there was a likelihood prospective employers would see the charges in the file.

Christopher Sciolino was fired for tampering with the odometer in his police car, bumping up the mileage by 10,000 miles so he could get a new car sooner. The police chief fired him by letter and put the letter in Sciolino’s personnel file, at which point Sciolino filed a suit claiming that false allegations had been inserted into his file and ruined his good name.

Sciolino contends that by placing false charges in his personnel file, which “may be available” to prospective employers, the city deprived him of Fourteenth Amendment liberty interests – in his reputation and his ability to obtain future employment – without granting him a name-clearing hearing.

The appellate court upheld the trial court’s opinion that the speculative nature of Sciolino’s claim that the letter “may be available” to prospective employers was not enough to prompt such a name-clearing hearing. According to the opinion, Sciolino could not prove that the charges against him stigmatized his reputation, were made public by the police department, were made in conjunction with his termination and were false.

The court said that a plaintiff must allege and prove likelihood that prospective employers or the public will inspect his or her personnel file, in which case an employee is entitled to a hearing where he or she can challenge the charges.

In order to meet the “likelihood” standard, a plaintiff has to prove that the former employer has a practice of releasing personnel files to those employers that ask for them, or that the former employee intends to apply for a job at an employer to whom the former employer releases personnel files.

The ruling in  Sciolino v. City of Newport News, 4th Circuit., No. 05-2229 (March 12, 2007) is  here .