Jay Gunasekera v. Dennis Irwin

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0005p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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JAY S. GUNASEKERA,

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Plaintiff-Appellant,

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No. 07-4303

v.

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Defendants-Appellees. -

DENNIS IRWIN and KATHY KRENDL,

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 06-00732—Algenon L. Marbley, District Judge.

Argued: September 19, 2008

Decided and Filed: January 8, 2009

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Before: MOORE and COOK, Circuit Judges; HOOD, District Judge.

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COUNSEL

ARGUED: John S. Marshall, MARSHALL & MORROW LLC, Columbus, Ohio, for

Appellant. Andrew J. Mollica, MOLLICA, GALL, SLOAN & SILLERY CO., L.P.A.,

Athens, Ohio, for Appellees. ON BRIEF: John S. Marshall, MARSHALL &

MORROW LLC, Columbus, Ohio, Louis A. Jacobs, Desert Hot Springs, California, for

Appellant. Andrew J. Mollica, MOLLICA, GALL, SLOAN & SILLERY CO., L.P.A.,

Athens, Ohio, for Appellees.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. Jay S. Gunasekera (“Gunasekera”)

appeals the District Court’s grant of dismissal under Federal Rule of Civil Procedure

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The Honorable Joseph M. Hood, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

1

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12(b)(6) to Dennis Irwin and Kathy Krendl (“Irwin” and “Krendl”), of his 42 U.S.C.

§ 1983 claims that Irwin and Krendl deprived him of his property and liberty in violation

of the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. XIV, § 1,

cl. 3. On appeal, Gunasekera argues that this dismissal should be reversed because:

(1) the name-clearing hearing he was offered was not public and was therefore

inadequate; (2) he has a property interest in his Graduate Faculty status and was denied

notice and an opportunity to be heard when that status was suspended; and (3) any

determination of whether his constitutional rights were clearly established to defeat the

defendants’ qualified immunity defense must wait until a factual record has been

developed.

We hold that Gunasekera has made an adequate allegation that he was not offered

a sufficient name-clearing hearing to protect his liberty interest and that he was deprived

of his property interest in his Graduate Faculty status without the required notice and

opportunity to be heard to withstand dismissal pursuant to Rule 12(b)(6). Accordingly,

we REVERSE the district court’s judgment granting the dismissal of Gunasekera’s

property-based claims. We REVERSE the district court’s judgment that Gunasekera

was not entitled to a public name-clearing hearing and REMAND for further

proceedings consistent with this opinion. We AFFIRM the district court’s judgment

granting the dismissal of Gunasekera’s liberty-based claims seeking civil damages

because we conclude that Irwin and Krendl have qualified immunity with respect to

these liberty-based damages claims.

I. BACKGROUND

In 2004, Gunasekera was the Moss Professor of Mechanical Engineering at the

Russ College of Engineering and Technology of Ohio University (“Russ College”) and

had been Chair of the Department of Mechanical Engineering for fifteen years. He had

worked at Ohio University (“the University”) for more than two decades and had

Graduate Faculty status at Russ College which enabled him to supervise graduate

students’ thesis work. That year, a student alleged widespread plagiarism in mechanical-

engineering graduate-student theses. Two internal investigations uncovered plagiarism

No. 07-4303 Gunasekera v. Irwin et al. Page 3

in collateral areas rather than in the analysis or conclusions. Following these probes,

Krendl, the Provost of Ohio University, instructed Irwin, the Dean of Russ College, to

take further action. In response, Irwin asked an administrator and a retired faculty

member to investigate the alleged plagiarism. These men prepared a report known as

the Meyer/Bloemer Report and submitted it to Irwin and Krendl on May 30, 2006.

On May 31, 2006, Krendl held a press conference to publicize the

Meyer/Bloemer Report. As the district court explained, the report found “rampant and

flagrant plagiarism in theses” and “singled out three faculty members, including Dr.

Gunasekera, for ignoring their ethical responsibilities and contributing to an atmosphere

of negligence toward issues of academic misconduct.” Gunasekera v. Irwin, 517 F.

Supp. 2d 999, 1002 (S.D. Ohio 2007). In response to this report, the University

suspended Gunasekera’s Graduate Faculty status for three years and prohibited him from

advising graduate students.

On August 28, 2006, Gunasekera filed this lawsuit in the United States District

Court for the Southern District of Ohio. Suing under 42 U.S.C. § 1983, Gunasekera

sought “compensatory and punitive damages, declaratory, equitable, and injunctive

relief, and attorneys’ fees and costs” from Irwin and Krendl for depriving him of his

“property and/or liberty interests in violation of the Due Process Clause of the

Fourteenth Amendment.” Joint Appendix (“J.A.”) at 1 (Compl. ¶ 1). Gunasekera made

two claims: (1) that Irwin violated his due-process rights when Irwin deprived him of

his property interest in his Graduate Faculty status by suspending him without “notice

and a meaningful opportunity to be heard,” id.; and (2) that Irwin and Krendl deprived

him of his liberty in violation of his due-process rights when “they publicized

accusations about his role in plagiarism by his graduate student advisees” without

providing him with a “meaningful opportunity to clear his name.” J.A. at 2 (Compl. ¶ 1).

On October 23, 2006, Irwin and Krendl filed a motion to dismiss pursuant to

Rule 12(b)(6). This motion presented four possible bases for dismissal: (1) Gunasekera

had waived his federal cause of action by filing a defamation suit in state court; (2) Irwin

and Krendl have absolute official immunity and qualified immunity in their individual

No. 07-4303 Gunasekera v. Irwin et al. Page 4

capacities; (3) Gunasekera does not have a protected property interest; and

(4) Gunasekera’s liberty interest claim fails because he was “offered but rejected a name-

clearing hearing.” Mot. to Dismiss at 3.

On September 26, 2007, the district court granted Irwin and Krendl’s motion to

dismiss. The district court made four findings. The first two, which have not been

raised on this appeal, are: (1) “sovereign immunity bars all but [Gunasekera’s] claim for

prospective equitable relief against [Irwin and Krendl] in their official capacities and

[Gunasekera’s] § 1983 claims for money damages against Defendants in the[ir]

individual capacities, excluding back pay and fringe benefits,”; and (2) Gunasekera “did

not waive his § 1983 claims against [Irwin and Krendl] by filing a defamation [suit]

against the state in the Court of Claims” because the claims did not arise from the same

act or omission. Gunasekera, 517 F. Supp. 2d at 1005-06.

The district court’s third holding concerned qualified immunity. The district

court determined that because Gunasekera did not have a property interest in his

Graduate Faculty status, there had been no constitutional violation, and Irwin and Krendl

were entitled to dismissal based on qualified immunity. The district court next held that

“[e]ven assuming, arguendo, that [Gunasekera] has been deprived of a liberty interest,

due process does not entitle him to a hearing beyond what [Irwin and Krendl] already

offered.” Id. at 1013. After finding that Irwin and Krendl had provided sufficient

process, the district court determined that there was no constitutional violation and

granted them dismissal based on qualified immunity. Having concluded that Gunasekera

had no property interest in Graduate Faculty status and that he had been offered

sufficient process in connection with any liberty interest, the district court also dismissed

Gunasekera’s remaining claims for equitable relief.

On appeal Gunasekera raises three issues: (1) the offered name-clearing hearing

was insufficient to satisfy due process because it was not public; (2) he has a property

interest in his Graduate Faculty status and was deprived of that interest without due

process; (3) the district court erred in determining whether a constitutional violation was

No. 07-4303 Gunasekera v. Irwin et al. Page 5

clearly established for purposes of qualified immunity before a factual record had been

developed.

In their response, Irwin and Krendl argue that Gunasekera was not entitled to, but

was offered in any event, a public name-clearing hearing. They assert that the district

court was correct in finding that Gunasekera had no property interest in his Graduate

Faculty status. Finally, they state that because Gunasekera cannot establish a

constitutional violation, they are entitled to qualified immunity.

II. ANALYSIS

A. Standard of Review

We review de novo a district court’s grant of a motion to dismiss.1 Winget v. JP

Morgan Chase Bank, N.A., 537 F.3d 565, 572 (6th Cir. 2008). In Bell Atlantic Corp. v.

Twombly, 550 U.S. —, 127 S. Ct. 1955, 1964-65 (2007), the Supreme Court stated that

in order to survive a Rule 12(b)(6) motion, the nonmoving party must provide “more

than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do . . . . Factual allegations must be enough to raise a right to relief above

the speculative level.” Weeks later, the Supreme Court cited Twombly in support of the

well-established principle that “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a

short and plain statement of the claim showing that the pleader is entitled to relief.’

Specific facts are not necessary; the statement need only ‘give the defendant fair notice

1

Irwin and Krendl appended outside materials to their motion to dismiss and asked that it be

converted into a motion for summary judgment. See Fed. R. Civ. P. 12(d), 56. In his response,

Gunasekera discussed the standards for summary judgment and for a motion to dismiss. He attached

materials to his response. He also included a footnote stating that if the district court converted Irwin and

Krendl’s motion to dismiss into a Rule 56 motion for summary judgment, he would demand discovery

under Federal Rule of Civil Procedure 56(f). The district court opinion does not mention this issue and

appears to apply the Rule 12(b)(6) standard without explicitly rejecting the outside materials.

In the context of Rule 12(c)’s identical conversion language, we have held that once outside

materials have been presented, the district court need not “further consider or rely upon these outside

matters before the obligation to convert is triggered; the plain language of Rule 12(c) does not require these

additional steps; it only requires the presentation of matters outside the pleadings and the district court’s

failure to exclude such matters.” Max Arnold & Sons, LLC v. W.L. Hailey & Co., 452 F.3d 494, 503 (6th

Cir. 2006). In this case, however, we cannot convert Irwin and Krendl’s Rule 12(b)(6) motion into a

motion for summary judgment because Gunasekera was not afforded the opportunity to obtain discovery

under Rule 56(f) as he requested. See J.A. at 26 (Resp. to Mot. to Dismiss at 4 n.1). Additionally, neither

party appeals this issue, so the Rule 12(b)(6) standard outlined above is applicable in this case.

Because this case is before us on a Rule 12(b)(6) motion, we will not consider or discuss any of

the outside materials attached by either party.

No. 07-4303 Gunasekera v. Irwin et al. Page 6

of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 550

U.S. —, 127 S. Ct. 2197, 2200 (2007) (quoting Twombly, 127 S. Ct. at 1964). “We read

the Twombly and Erickson decisions in conjunction with one another when reviewing

a district court’s decision to grant a motion to dismiss for failure to state a claim.”

Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295-96 (6th Cir. 2008). Courts

in and out of the Sixth Circuit have identified uncertainty regarding the scope of

Twombly and have indicated that its holding is likely limited to expensive, complicated

litigation like that considered in Twombly. Id. at 296 n.1 (citing cases raising this

uncertainty in the Sixth and Second Circuits); U.S. ex rel. SNAPP, Inc. v. Ford Motor

Co., 532 F.3d 496, 503 n.6 (6th Cir. 2008) (“Twombly itself suggests that its holding may

be limited to cases likely to produce “sprawling, costly, and hugely time-consuming”

litigation.” (quoting Twombly, 127 S. Ct. at 1973 n.6)).

When we review a district court’s decision to grant a Rule 12(b)(6) motion, “[w]e

accept all the Plaintiffs’ factual allegations as true and construe the complaint in the light

most favorable to the Plaintiffs.” Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d

710, 716 (6th Cir. 2005); see also Erickson, 127 S. Ct. at 2200 (“[W]hen ruling on a

defendant’s motion to dismiss, a judge must accept as true all of the factual allegations

contained in the complaint.”). Accordingly, here we assume that the facts are as

Gunasekera alleged in his complaint.

B. Due-Process Property Claim

To prevail on the claim that he was unconstitutionally deprived of his property

when his Graduate Faculty status was suspended, Gunasekera must “‘establish three

elements; (1) that [he] ha[s] a life, liberty, or property interest protected by the Due

Process Clause of the Fourteenth Amendment . . . , (2) that [he] w[as] deprived of this

protected interest within the meaning of the Due Process Clause, and (3) that the state

did not afford [him] adequate procedural rights prior to depriving [him] of [his] protected

interest.’” Med Corp. v. City of Lima, 296 F.3d 404, 409 (6th Cir. 2002) (quoting Hahn

v. Star Bank, 190 F. 3d 708, 716 (6th Cir. 1999), cert. denied, 529 U.S. 1020 (2000)).

No. 07-4303 Gunasekera v. Irwin et al. Page 7

Gunasekera has alleged that he has a property interest in his Graduate Faculty

status protected by the Due Process Clause. On appeal, Gunasekera argues that his

“property interest arises from a combination of Kentucky Department of Corrections v.

Thompson, 490 U.S. 454, 463 (1989), where rules established ‘specific substantive

predicates to limit discretion,’ with Perry v. Sindermann, 408 U.S. 593, 601 (1972),

where ‘mutually explicit understandings’ created a property interest.” Gunasekera Br.

at 28. He alleges that Graduate Faculty status is “a right intrinsic” that a professor

maintains so long as he or she satisfies the four criteria the University requires of its

Graduate Faculty.2 Id. He argues that because these criteria limit the University’s

discretion to name Graduate Faculty and because “[i]n actual practice . . . professors

retain their appointment so long as they satisfy those criteria,” he has a property interest

in his Graduate Faculty status. Id.

Gunasekera suggests that, per University custom, professors enjoy Graduate

Faculty status so long as they meet the four criteria. J.A. at 9-10, 13 (Compl. ¶¶ 43-46,

68). In the context of university employment, the Supreme Court has held that “rules

and understandings, promulgated and fostered by state officials” can form the foundation

of a protected property interest. Perry, 408 U.S. at 602-03. Similarly, we have held that

an employer’s custom and practice can form the basis for a protected property interest.

Christian v. Belcher, 888 F.2d 410, 417 (6th Cir. 1989). The district court rejected

Gunasekera’s custom-based argument on the grounds that Perry involved university

guidelines that explicitly restrained discretion, unlike the criteria for Graduate Faculty

status. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) (“[A] benefit is

not a protected entitlement if government officials may grant or deny it in their

2

As presented in Gunasekera’s complaint, these criteria are:

a. Ph.D. in an appropriate engineering field or related area;

b. Group I faculty status at Ohio University;

c. having taught at least one year of advanced undergraduate or graduate-level courses

within the five years immediately preceding nomination for appointment; and

d. having demonstrated currency in the nominee’s field of specialization through

publication of at least five technical/professional journal or refereed conference

papers, textbooks, or monographs within the five years immediately preceding

nomination for appointment; or having served as Principle [sic] or Co-Principle

[sic] investigator on externally funded activities.

J.A. at 9 (Compl. ¶ 43). The district court stated, and Irwin and Krendl did not dispute, that Gunasekera

“currently meets the criteria, as he did at the time of his suspension.” Id.

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discretion.”); see also Richardson v. Twp. of Brady, 218 F.3d 508, 517 (6th Cir. 2000)

(“[Plaintiff] can have no legitimate claim of entitlement to a discretionary decision.”).

However, as in Perry, Gunasekera’s argument does not turn on the language of the

regulations, but rather on his ability to show that a common practice and understanding

had developed which gave him a legitimate claim to Graduate Faculty status so long as

he met the stated conditions. At oral argument, the University admitted that there is no

precedent regarding when Graduate Faculty status is retained, because it has never been

revoked or suspended. Viewing the allegations in the complaint in the light most

favorable to Gunasekera, we believe that he has alleged that University custom gives

him a property interest in his Graduate Faculty status. See Bell Atl. Corp. v. Twombly,

127 S. Ct. at 1968-69; Christian, 888 F.2d at 417 (holding that “custom and practice”

could give an employee a protected property interest where there were allegations that

the employer had never terminated an employee in violation of this custom).

In dismissing Gunasekera’s property-interest claim, the district court asserted that

any losses Gunasekera suffered were incidental to his suspension and that his suspension

did not alter his employment enough to make Graduate Faculty status a property interest.

The district court cited Jackson v. City of Columbus, 194 F.3d 737 (6th Cir. 1999), a case

in which this court held that there was no deprivation of property when a city suspended

its police chief with pay while it investigated allegations of misconduct. However,

Jackson held that the police chief had not been deprived of a property interest because

he “was neither terminated nor lost any pay or benefits.” Id. at 749 (emphasis added).

Gunasekera’s complaint alleges that he lost both pay (including “a summer salary

research stipend that complements annual salary” for Graduate Faculty) and benefits

(such as a reduced teaching load). J.A. at 10 (Compl. ¶¶ 49-50); see Ridpath v. Bd. of

Governors Marshall Univ., 447 F.3d 292, 310 (4th Cir. 2006) (finding an unwanted job

transfer to be “a significant demotion to a position outside [plaintiff’s] chosen field . . .

tantamount to an outright discharge”); Newman v. Commonwealth, 884 F.2d 19, 25 n.6

(1st Cir. 1989) (“In this case, plaintiff was barred from voting on degrees and from

serving on important university committees or as chair of her department. A letter of

censure for an act of ‘objective plagiarism’ and ‘seriously negligent scholarship’ was

No. 07-4303 Gunasekera v. Irwin et al. Page 9

placed in her permanent file, an action that undoubtedly affects her ability to secure

other employment in the future. We think it obvious that this severe sanction

substantially damaged plaintiff’s property interest in her position.” (emphasis added)).

Viewing the allegations in the complaint the light most favorable to Gunasekera, we

believe that his extensive documentation of the ways in which this suspension affects his

career suffices to allege that his suspension is a deprivation of property. J.A. at 10-12

(Compl. ¶¶ 47-66).

To survive this motion to dismiss, Gunasekera must also allege that Irwin and

Krendl deprived him of his property interest without due process. Gunasekera asserts

that he was not given notice or an opportunity to be heard regarding “his satisfaction of

the criteria for appointment to Graduate Faculty status” before or after his suspension.

J.A. at 8-9 (Compl. ¶¶ 38-39); see Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 635 (6th

Cir. 2005) (“Notice and an opportunity to be heard remain the most basic requirements

of due process.” (emphasis added)). At oral argument, Irwin and Krendl’s lawyer

conceded that Gunasekera had not been offered either a pre- or a post-deprivation

hearing. “[W]e have held that prior to termination of a public employee who has a

property interest in his employment, the due process clause requires that the employee

be given ‘oral or written notice of the charges against him or her, an explanation of the

employer’s evidence, and an opportunity to present his or her side of the story to the

employer.’” Farhat v. Jopke, 370 F.3d 580, 595 (6th Cir. 2004) (quoting Bruckner v.

City of Highland Park, 901 F.2d 491, 494 (6th Cir.), cert. denied, 498 U.S. 848 (1990)).

Because Gunasekera asserts that he was never given any opportunity to be heard either

before or after he was deprived of his property interest in his Graduate Faculty status,

the district court’s dismissal of Gunasekera’s property-interest claim must be reversed.

C. Due-Process Liberty Claim

Gunasekera also appeals the dismissal of his claim that Irwin and Krendl

deprived him of his liberty without due process of law. In order to prevail at the Rule

12(b)(6) stage, Gunasekera must allege that he had a protected liberty interest and that

he was deprived of this interest without due process of law. The first part of this test is

No. 07-4303 Gunasekera v. Irwin et al. Page 10

not at issue, as on appeal Irwin and Krendl concede that Gunasekera “possesses a

protected liberty interest.” Irwin & Krendl Br. at 4. Given this concession, we do not

need to apply our five-factor test used to decide whether someone is entitled to a name-

clearing hearing due to a deprivation of his or her liberty interest.3 See Quinn v. Shirey,

293 F.3d 315, 320 (6th Cir.) (describing five factor test), cert. denied, 537 U.S. 1019

(2002). The fact that Gunasekera requested a name-clearing hearing as required by this

circuit is not contested. Id. at 322. The dispute boils down to what process is due and

whether such a hearing must be public.4

We have held that “a name-clearing hearing need only provide an opportunity

to clear one’s name and need not comply with formal procedures to be valid.”

Chilingirian v. Boris, 882 F.2d 200, 206 (6th Cir. 1989); see also Feterle v. Chowdhury,

148 F. App’x 524, 531-32 (6th Cir. 2005) (unpublished opinion). However, we have yet

to address whether a name-clearing hearing must include a public opportunity clear

one’s name.5

To decide whether due process demands a public name-clearing opportunity, we

apply the standard set by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319

(1976). This three-part balancing test requires us to consider the following elements:

3

Even if Irwin and Krendl had contested the district court’s assumption that Gunasekera has a

liberty interest, Gunasekera has sufficiently alleged a protected liberty interest. The accusations regarding

plagiarism were connected to his suspension (and as discussed above, Gunasekera’s suspension deprived

him of benefits and pay); the University alleged more than simple incompetence; the allegations were

public; Gunasekera claims that the statements were false; and the University called a press conference to

publicize its charges. See Quinn v. Shirey, 293 F.3d 315, 320 (6th Cir. 2002).

4

There is some dispute as to whether the hearing offered by the University was public or not. The

University asserted, and the district court agreed, that the proposed hearing was public because Gunasekera

would have been allowed to bring anyone, including members of the press, to his hearing. Gunasekera,

517 F. Supp. 2d at 1014 & n.9. Gunasekera counters that the hearing offered was not public because the

University specifically denied his request for a hearing publicized in the same way the Meyer/Bloemer

report had been. Id. However, this dispute is contained in documents outside the pleadings which we

cannot properly consider on a Rule 12(b)(6) motion. Taking the allegations in the complaint in the light

most favorable to Gunasekera, we assume that he was not offered a public opportunity to clear his name.

5

In Flaim, we held that a university disciplinary hearing need not be public. 418 F.3d at 635.

Although both Flaim and this case involve universities, a disciplinary hearing is very different from a

name-clearing hearing. A name-clearing hearing is not a venue for an employer to determine the proper

punishment, but rather an opportunity for an individual to confront a public stigma that has already been

imposed by an employer. However, as we discuss below, the concerns cited in Flaim may shape the nature

of the publicity required in connection with a name-clearing hearing.

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“(1) the nature of the private interest affected—that is, the seriousness of the charge and

potential sanctions, (2) the danger of error and the benefit of additional or alternate

procedures, and (3) the public or governmental burden were additional procedures

mandated.” Flaim, 418 F.3d at 635 (describing test instituted by Supreme Court in

Mathews). Considering the first prong of this test, we believe that it is clear that where,

as here, the employer has inflicted a public stigma on an employee, the only way that an

employee can clear his name of the public stigma is through publicity. The injury of

which Gunasekera complains is the fact that he was publicly associated with and perhaps

partially blamed for a plagiarism scandal. As to the second prong of Mathews, publicity

adds a significant benefit to the hearing, and without publicity the hearing cannot

perform its name-clearing function. A name-clearing hearing with no public component

would not address this harm because it would not alert members of the public who read

the first report that Gunasekera challenged the allegations. Similarly, if Gunasekera’s

name was cleared at an unpublicized hearing, members of the public who had seen only

the stories accusing him would not know that this stigma was undeserved. The Second

Circuit has held that an unpublicized, internal name-clearing hearing was insufficient

because of the “substantial risk that the stigma against plaintiff would remain after such

hearing.” Patterson v. City of Utica, 370 F.3d 322, 337 (2nd Cir. 2004). Following this

conclusion, the Second Circuit held that: “Requiring the [employer] to address such risk

by offering plaintiff the opportunity to publicly refute the charges made against him or

publicising his refutations itself, does not place an undue burden upon the government’s

interest in terminating [employees] who either are not performing to expected standards

or are behaving in an unacceptable fashion.” Id. We agree with the Second Circuit that

requiring that name-clearing hearings involve some form of publicity would not

necessarily put an undue burden on the government.

In order to determine what the name-clearing hearing should entail and what its

limits might be in each case, courts should again turn to the Mathews balancing test

described above. By applying this test to the facts of the case before it, a court can tailor

a name-clearing hearing which allows the employee to challenge directly any public

stigma while also accounting for any legitimate concerns of the employer. In this case,

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Gunasekera has a strong interest in his academic reputation. Requiring that a name-

clearing hearing include a public component may be the only way to make such a

hearing effective. If a name-clearing hearing has no public component, it may not be

able to serve its function of curing the public stigma that necessitated the hearing. With

respect to the third prong, government interests will shape the nature of the publicity

required. For example, privacy concerns within the university setting might dictate the

form of the publicity. Cf. Flaim, 418 F.3d at 637 n.2 (noting that the publicity attending

a “full-dress judicial hearing” “might be detrimental to the college’s educational

atmosphere”). Though we have few facts before us on this Rule 12(b)(6) motion, we

observe that it is possible that concerns for the privacy of students implicated in

plagiarism would impact the precise nature of the publicity required.

We hold that Gunasekera has sufficiently alleged that he was deprived of a

protected liberty interest without due process of law to withstand this Rule 12(b)(6)

motion. In order to satisfy due process, the university is required to offer Gunasekera

a name-clearing hearing that is adequately publicized to address the stigma the university

inflicted on him. The exact nature of that publicity depends on a fact-intensive review

of the circumstances attending his case, and we leave to the district court the initial

determination regarding the exact parameters of the name-clearing hearing due to

Gunasekera.

D. Qualified Immunity

Qualified immunity is an affirmative defense that will protect a state official sued

in his individual capacity from damages liability when two questions have been

answered: (1) “Taken in the light most favorable to the party asserting the injury, do the

facts alleged show the officer’s conduct violated a constitutional right?”; and (2) if the

answer to the first question is yes, we must decide whether the violated right was

“clearly established.” Saucier v. Katz, 533 U.S. 194, 200-01 (2001).

Taking the allegations contained in the complaint in the light most favorable to

Gunasekera, we conclude that Irwin and Krendl would not be shielded by qualified

immunity. Gunasekera, a long-time faculty member, alleges that he had his important

No. 07-4303 Gunasekera v. Irwin et al. Page 13

Graduate Faculty status revoked, an action that Gunasekera asserts the University had

not taken before, without any pre- or post-termination notice and opportunity to be

heard. J.A. at 8-10 (Compl. ¶¶ 38-39, 46). The revocation of this status deprived him

of pay and benefits, also without notice and opportunity to be heard. These basic due-

process requirements are clearly established, and Irwin and Krendl reasonably should

have known that Gunasekera was due at least some process in connection with his

suspension. See, e.g., Flaim, 418 F.3d at 635 (“Notice and an opportunity to be heard

remain the most basic requirements of due process.”). Because Gunasekera received no

process, Irwin and Krendl are not protected by qualified immunity at this phase of the

proceedings.

Taking the allegations in the complaint in the light most favorable to Gunasekera,

we conclude that qualified immunity does shield Irwin and Krendl from damages based

on Gunasekera’s liberty-interest claim. Our holding that a name-clearing hearing may

require publicity in some circumstances was not clearly established law at the time that

Irwin and Krendl acted. However, because qualified immunity does not bar injunctive

relief, Gunasekera may proceed with respect to his request for a public name-clearing

hearing as indicated above.

III. CONCLUSION

For the reasons discussed above, because Gunasekera has sufficiently alleged a

property interest in his Graduate Faculty status which was deprived without due process

of law, we REVERSE the district court’s judgment granting the dismissal of

Gunasekera’s property-based claims. We REVERSE the district court’s judgment that

Gunasekera was not entitled to a public name-clearing hearing and REMAND for

further proceedings consistent with this opinion. We AFFIRM the district court’s

judgment granting the dismissal of Gunasekera’s liberty-based claims seeking civil

damages because we conclude that Irwin and Krendl have qualified immunity with

respect to these liberty-based damages claims.