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It is often considerably harder to pursue a wrongful termination action against the employer which is a public entity / government agency than a private company due to a number of privileges and immunities that may reduce or even complete insulate a government employer from liability. However, at the same time, public employees also enjoy certain protections and have a number of important rights that their peers in the private sector don't. One such great protection is afforded by the U.S. Constitution.
Under the 5th Amendment Due Process Clause, a state may not deprive a person from life, liberty or property without due process. Although the above rule sounds somewhat abstract and even esoteric, it has a very specific and practical application in the context of employment law, that has been developed during the past few decades, that can allow a public employee to bring a claim whether other claims would fail as a matter of law. A person has a liberty interest in employment protected by the Due Process Caluse if the dismissal effectively precludes future work in the individul's chosen professiona. Merrit v. Mackey, 827 F.2d 1368, 1373 (9th Cir. 1987). More simply put, if the circumstances of termination are such that they preclude a public employee from obtaining future employment in his area of work / licensure, and he was not afforded at least some kind of pre-termination hearing and an opportunity to challenge it, that employe might have a legitimate due process claim as he was deprived of the liberty to pursue work in his profession. An individual has a liberty interest in employment protected by the Due Process Clause if the dismissal is for reasons that might seriously damage his standing in the community Bollow v. Federal Reserve Bank, 650 F.2d 1093, 1100 (9th Cir. 1981), or if the dimissal effectively precludes future work in the individual's chosen profession. Greene v. McElroy 360 U.S. 44 (1959). As stated, to establish a violation of such a liberty interest, Plaintiff must show that his dismissal destroyed his freedom to take advantage of other employment opportunities and that because of the dismissal, it is virtually impossible for him to find new employment in a chosen filed. Engquist v Or. Dep't of Agric., 478 F.3d 985, 998 (9th Cir. 2007). This means that "poor performance" or "insubordination" or "tardiness" or other trivial issues will not give rise to this constitution claim unless the discharge renders the public employee / holder of a professional license unemployeable. On the other hand, the more extreme accusations against a public employee such as "unfit for duty" or "violent" or "dishonest and unethical" that lead to discharge are likely to be a constitution violatin of pre-termination hearing was not provided.
How does an employee prove that he is virtually unemployable. In Braswell v. Shoreline Fire Department (2010), it was sufficient for a plaintiff to get his supervisor to admit under oath that he does not think any other fire department would hire the plaintiff given the allegations that lead to his termiantion, in order to prevent the dismissal of his constitution claim and allow the jury to hear the case.
The due process claim is particularly helpful where the defamation claim which can be effective against private employer fails as a matter of law due to the absolute privilege against defamation claim that many public offices enjoy. Immunity doess not apply where the conduct exceeds the scope of the manager's authority and when a manager violates plaintiff's clearly established constitutional rights. When the law is clearly established, the qualified immunity defense fails since a reasonably competent public official should know the law governing his conduct.