Melton v. City of Oklahoma City

OPINION ON REHEARING EN BANC JOHN P. MOORE, Circuit Judge. Plaintiff Raymon J. Melton brought this action under 42 U.S.C. §§ 1983 and 1985. Among the causes he asserted was a claim that he was deprived of a liberty interest by the defendants without due process when he was discharged from his job as a police officer in Oklahoma City, Oklahoma. Following a plaintiffs verdict, the defendants appealed, and a portion of the judgment was reversed. Melton v. City of Oklahoma City, 879 F.2d 706 (10th Cir. 1989). We granted rehearing en banc to resolve certain issues relating to plaintiffs liberty interest claim. Melton v. City of Oklahoma City, 888 F.2d 724 (10th Cir.1989). Although we denominated four issues for argument, we believe disposition of the first moots the remainder. We now conclude the trial court committed plain error in the submission of the liberty interest claim to the jury, and we reverse. The remaining issues decided by the panel stand as determined. I. Prior to his termination, Mr. Melton was a lieutenant in the Oklahoma City Police Department. During his tenure, he became a friend of William C. Page, a former state court judge who was indicted by a federal grand jury on felony charges. In preparation for the trial of Mr. Page, the federal prosecutor interviewed Mr. Melton. For reasons of his own, Mr. Melton surreptitiously recorded his conversation with the prosecutor and later gave the recording to counsel for Mr. Page. The recording was used by Mr. Page's attorney as the basis for a motion to dismiss the indictment on the ground that Mr. Melton had provided the prosecutor with information to which the defense was entitled under Brady v. State of Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). The motion was denied, and Mr. Page was subsequently convicted. Following the trial, Agent Ed Enwright, the agent in charge of the Oklahoma City office of the Federal Bureau of Investigation, advised defendant Lloyd A. Gramling, Chief of Police, of a complaint against Mr. Melton. Mr. Enwright accused Mr. Melton of improperly disclosing the details of his conversation with the federal prosecutor and of perjuring himself in an affidavit and during trial. In response, Chief Gramling ordered a police department investigation of the accusations. On August 1, 1983, defendant Lt. Carl Smith, the head of the Internal Affairs Bureau, commenced the investigation by interviewing Mr. Enwright, who directed Lt. Smith to Agent Ron West. Lt. Smith spoke to Agent West from whom Lt. Smith obtained details of Mr. Melton’s tape recorded conversation. Mr. Enwright also told Lt. Smith he did not know the details of the alleged perjury, but Lt. Smith could obtain the facts from a third agent, Mr. Fitzpatrick. After his interviews of Agents Enwright and West, but before contacting Agent Fitzpatrick, Lt. Smith prepared and delivered to Mr. Melton a document dated August 17, 1983. According to Lt. Smith, the only purpose of the document was to “inform Lt. Melton what he had been accused of by the F.B.I. and that I was conducting, on the instructions of the Chief’s office, an investigation of him on those allegations.” (R. Vol. XII, 676).1 Referring to those — 923 — allegations, Lt. Smith wrote Mr. Melton was “accused of violating the Police Code of Ethics2 ... [and] making perjured statements both in a sworn affidavit ... and during testimony ... during the trial.” When he interviewed Agent Fitzpatrick, Lt. Smith discovered there was no substance to Agent West’s claim Mr. Melton had perjured himself. Agent West had told Lt. Smith that Mr. Melton had testified during the Page trial he had turned over to the FBI certain evidence in the Page case that was not pursued by the FBI. Agent West also told Lt. Smith following a search subsequent to Mr. Melton’s testimony, no formal record of Mr. Melton’s evidence was found by the FBI. Agent West said, therefore, unless Mr. Melton had given the information to Agent Fitzpatrick, Mr. Melton’s testimony was untrue. When Lt. Smith interviewed Agent Fitzpatrick, he stated Mr. Melton made several attempts to provide him with information, and if Mr. Melton said he furnished him with the evidence “then he probably did.” (Ex. 61, Report dated September 6, 1983, at 2). Lt. Smith then filed his report of the investigation (Ex. 61) with Chief Gramling on September 6, 1983. The report made no recommendations, reached no conclusions, but described the substance of the interviews of various witnesses. On September 8, 1983, Mr. Melton was notified that five days later a hearing would be convened by a police department disciplinary review board (the Board) to consider the Internal Affairs investigation. On that same day, two stories which are the genesis of the plaintiff’s liberty interest claim, appeared in Oklahoma City newspapers. Prior to the appearance of the stories, a reporter from The Daily Oklahoma called defendant Lt. David McBride, the police department’s public information officer, seeking confirmation of the pending investigation. (R.V. XII, 604-06). Lt. McBride testified the reporter: read me a story that he had about information that he had received by [sic] sources that he did not reveal, that the police department was investigating R.J. Melton. And he articulated several things that he, through his sources, had learned, that Melton was — well, I think that answers your question____ I didn’t take notes of his interview. Okay. He was calling to tell me here’s what I’ve got. What’s the police department’s position on this. The information he had, that Melton allegedly perjured himself at a — during a trial, the trial of Judge William Page. He said that he had information that the police department was investigating Melton for tape recording an interview with the federal prosecutor. And what I tried to do was .minimize that as much as possible, tell them that— confirm those things that there was investigation in progress, that to my knowledge there were no immediate charges of a criminal nature being considered. We corrected some information. Some of the information that [the reporter] had was far more damaging, in my mind, than the story that actually ran. It was incredible. I was quite alarmed that some of the information he had was inaccurate and was very damaging to ... Mr. Melton____ (R.V. XII, 603-06). This conversation and a “follow-up” (R.V. XII, 607) ultimately led to the publication of two stories. It is undisputed that both stories reported the Internal Affairs investigation of Mr. Melton and the hearing that was set for that day. In addition to statements taken from Lt. McBride, the Daily Oklahoman quoted “other knowledgeable sources” who stated Mr. Melton “is being investigated, — 924 — among other things, for purportedly committing perjury during Page’s trial.” Nothing within the Daily Oklahoman article attributes to Lt. McBride any disclosure of the FBI perjury accusation. Indeed, the bulk of information contained in the story, including that accusation, was attributed to “sources,” “informed sources,” or “other knowledgeable sources.” The article in the Oklahoma City Times attributed statements to Michael Gassaway, “one of Page’s attorneys,” and Lt. McBride. That article stated: McBride said the department’s internal affairs division also investigated allegations Melton perjured himself when he testified in Page’s behalf during Page’s trial. The internal affairs findings will go before a disciplinary review board at 9 a.m. Tuesday. The board will decide whether Melton’s actions violated departmental policies or ethical cannons, McBride said. He said the board will recommend to Chief Lloyd Gramling what action, if any, he should take against Melton. McBride said the internal affairs investigation did not establish whether Melton perjured himself. “It’s not the responsibility of internal affairs to draw conclusions,” McBride said. “It’s their responsibility to report the facts as they find them to be from the investigation.” “The investigative report would only reflect, ‘Here’s what the facts were: here’s what Lt. Melton said.’ ” McBride said he does not know what specific parts of Melton’s testimony are alleged to be perjurious.3 To report the internal affairs review’s findings on the alleged perjury would be to try and convict Melton in the press before the review board has reached a conclusion, he said.4 Both stories contain accurate representations of Lt. McBride’s responses to the questions of the reporters. When the Board was convened, the chairperson, defendant Chief Emmett, told the members that the charge of perjury “was out, that we would not consider that under any circumstances. There will be no discussion of that whatsoever.” (R.V. VII, 10).5 At the outset of the hearing, Mr. Melton was told by Chief Emmett the Board would not consider the perjury accusation. (R.V. X, 145). According to plaintiff, “This was the first that I really knew that I was being boarded just for the police Code of Ethics.” Id. Following the hearing, the Board, with one member dissenting, concluded Mr. Melton had violated the Code of Ethics by recording and disclosing to Mr. Page’s counsel the contents of Mr. Melton’s conversation with the federal prosecutor. Two members of the Board consequently recommended Mr. Melton be demoted, but the remainder recommended discharge. Chief Gramling carried out the recommendation of the majority. In response to media inquiry, Lt. McBride subsequently confirmed in a published statement that Mr. Melton had been discharged for violating the police Code of Ethics. No media account carried information about the resolution of the FBI’s per — 925 — jury accusation, but on cross-examination, Lt. McBride was asked: Q: And you never made it a matter of public record that he was — that the charges were unfounded, sustained, not sustained, he was cleared, whatever the language of those policies are. You never made that a matter of public record, did you, sir? A: Yes, I did. Q: You did? A: Yes, sir. Q: And who did you tell? A: To several radio stations also, [sic] Q: Who? A: Who? Q: Tell us. A: I don’t recall everybody. Q: Just tell us one. A: Just one? I’m sure that whoever covered that story. And I know KEBC covered it. I don’t know who all else covered that story, but there were questions asked about the perjury allegation. And my response was those charges were found not to be, not to have happened, that it was a misunderstanding. I recall specifically talking to several members of the press about that. (R.V. XII, 621). This testimony was not controverted. II. The issue now before us stems from Mr. Melton’s argument that the publication of the two stories quoting Lt. McBride and others which revealed the accusations of perjury made by the FBI resulted in the denial of a liberty interest because Mr. Melton was not provided a hearing to clear himself of that accusation.6 The particular issue we granted rehearing to address is whether the district court committed plain error by instructing the jury that a liberty interest may be violated by charges which “would stigmatize the employee’s reputation or foreclose future employment opportunities.” Order Granting Rehearing, 888 F.2d at 724. We now believe that question cannot be answered without first determining whether the two articles upon which the claim is based are stigmatizing.7 To place our consideration of the issue in proper perspective, however, we must review the nature of the liberty interest now claimed by Mr. Melton. The seminal issue we shall resolve in this review is whether a plaintiff asserting such a claim must prove both stigmatization and loss of prospective employment opportunity. Relying on language from Miller v. City of Mission, Kan., 705 F.2d 368 (10th Cir.1983),8 the district court instructed the jury — 926 — that for plaintiff to prevail on his liberty-interest claim he must prove that his termination was accompanied by public dissemination of the “charges” against him, and that “the reasons for his dismissal would stigmatize his good name, reputation, hon- or and integrity, or foreclose further employment opportunities.”9 (emphasis added). We now question this instruction on two grounds. First, was it proper to allow the jury to consider the issues of stigmatization and deprivation of employment opportunities in the disjunctive; and, second, did the trial court err by allowing the jury to consider whether the statements relied upon by plaintiff were stigmatizing without an independent review of that issue by the court?10 The solution to our questions is contained in a line of cases beginning with Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In that case, reviewing the constitutional guarantees of liberty and property in the context of public employment, the Supreme Court elaborated upon the elements of “stigmatization” in charges leading to dismissal, id. at 573, 92 S.Ct. at 2707, and foreclosure of the employee’s “freedom to take advantage of other employment opportunities.” Id. Holding the Regents (State) had not taken action against Mr. Roth that would implicate his liberty interest, the Court stated: The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For “[wjhere a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential”. (citations omitted). In such a case, due process would accord an opportunity to refute the charge____ Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities. Had it done so, this, again, would be a different case. For “[t]o be deprived not only of present government employment but of future opportunity for it certainly is no small injury____” Id. at 573-74, 92 S.Ct. at 2707 (citations omitted). In succeeding cases, the Court brought Roth into sharper focus. First, in Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976), the court stated Roth did not hold that defamation of a public employee alone is enough to violate a protected liberty interest. Additionally, the Court explained, to be actionable, the defamation must occur in the course of the termination of employment. Id. Second, the stigmatizing statement must be disclosed publicly. Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976). Third, the stigmatizing statement must be false. Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977). Indeed, “there must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee’s reputation.” Id. at 627, 97 S.Ct. at 884. Putting these cases together, we can construct the parameters of a liberty interest case involving the discharge of a — 927 — When a public employer public employee, takes action to terminate an employee based upon a public statement of unfounded charges of dishonesty or immorality that might seriously damage the employee’s standing or associations in the community and foreclose the employee’s freedom to take advantage of future employment opportunities, a claim for relief is created. That construction of the claim leads us to the conclusion the trial court erred in instructing the jury on the nature of the liberty interest asserted in this case.11 Because the court disjoined the aspects of stigmatization and foreclosure of opportunity, the jury was permitted to find for the plaintiff on grounds that he was foreclosed from future employment opportunities without also finding he had been stigmatized. As a result, the plaintiff was permitted to recover a substantial verdict without carrying the entire burden of proof placed upon him. We believe the instruction constituted plain error because the dichotomy created in the instruction between stigmatization and future employment opportunity is patently wrong. Moreover, when the improper instruction is coupled with the absence of stigmatization, which we shall discuss in part III, the consequences of the error are simply unjust and prejudicial. The factors of the incorrect instruction and the results produced, working together, create plain error. Zimmerman v. First Fed. Sav. & Loan Ass’n, 848 F.2d 1047, 1054 (10th Cir.1988). III. A. We now turn to the question whether the statements made by Lt. McBride to the Oklahoma City Times were stigmatizing. We undertake this determination in accordance with the directives set out in Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). Bose involved a claim of commercial disparagement in which the question of whether the defendant made a false statement with actual malice was an issue on appeal. In its review, the Court initially recognized the conflict of two established principles. The first is that the finding of malice is subject to the clearly erroneous test of Fed.R. Civ.P. 52(a). The second, as the Court noted in New York Times Co. v. Sullivan, 376 U.S. 254, 284-86, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686 (1964), is that in cases raising First Amendment issues, an appellate court has an obligation to make an independent review of the record to insure against “forbidden” intrusion on free expression. Bose, 466 U.S. at 499, 508, 104 S.Ct. at 1958, 1963. While embracing the notion that deference is to be accorded to a trial court’s finding of fact, the Court nonetheless stated, when findings are intertwined with legal principles, the appellate court’s duty to correct errors in law is not inhibited by Rule 52(a). Indeed, the Court explained: A finding of fact in some cases is inseparable from the principles through which it was deduced. At some point, the reasoning by which a fact is “found” crosses the line between application of those ordinary principles of logic and common experience which are ordinarily entrusted to the finder of fact into the realm of a legal rule upon which the reviewing court must exercise its own independent judgment. Where the line is drawn varies according to the nature of the substantive law at issue. Regarding certain largely factual questions in some areas of the law, the stakes — in terms of impact on future cases and future conduct — are too great to entrust them finally to the judgment of the trier of fact. Id. at 501, n. 17, 104 S.Ct. at 1960, n. 17. We believe the question of stigmatization before us must fall into this realm — 928 — because it implicates many of the Court’s concerns over the fact-finding process of the First Amendment. As in New York Times v. Sullivan and Bose, the finding of stigmatization intersects First Amendment principles and defamation law. Whether Lt. McBride’s report of the FBI accusations stigmatized Mr. Melton evokes the same conflict between the common law of defamation and First Amendment principles as the trial court’s finding of actual malice and free speech in Bose. 466 U.S. at 502-03, 104 S.Ct. at 1960. We therefore follow the mandate of Bose and make an independent review of the record on the dispositive constitutional issue. Milkovich v. Lorain Journal Co., — U.S. —, 110 S.Ct. 2695, 2705, 111 L.Ed.2d 1 (1990). The basis for Mr. Melton’s claim is the assertion Lt. McBride publicized reports that Mr. Melton perjured himself. Were the facts that simple, the case would have a different focus, but the simplification, in this instance, leads to a distortion which unjustly controls the outcome. To permit the distortion to stand, therefore, is wrong. There are many controlling factors overlooked in the plaintiff’s claim. First, Lt. McBride was not alone responsible for the publication. The evidence is undisputed that the first reporter who contacted him already knew about the FBI’s accusations. Unfortunately, the source of that information was not disclosed, but we do know the original disclosure of the accusation did not come from Lt. McBride.12 Second, the published stories themselves attribute disclosure of the defamatory reports to persons other than Lt. McBride. More importantly, the disclosure of the perjury accusation contained in The Daily Oklahoman story came in quotes from the spectral informants, not from Lt. McBride. Third, all the statements made by Lt. McBride were true. Mr. Melton was accused by the FBI of having committed perjury, and the Oklahoma City Police Department was investigating that accusation. Fairly read in context, there is nothing contained in either publication which suggests Lt. McBride or any other defendant either accepted the accusation as true or embraced it as his own. Fourth, the plaintiff was never charged with perjury by the Chief of Police, and the punitive action taken against Mr. Melton had nothing to do with the FBI’s accusation. Indeed, even before the punitive action against him went beyond the initial investigative stage, the defendants had decided the accusation was without substance. In fact, the issue of the perjury accusation would not have arisen at all during the disciplinary process without the disclosures made by those “other sources” to the press. Moreover, Mr. Melton was never, and could never have been, called upon to defend himself against the FBI’s accusation because that accusation was not an issue. Indeed, Mr. Melton admitted he knew at the hearing he was only charged with violation of the Code of Ethics. Of the circumstances obscured in plaintiff’s claim, two are most critical. First, the statements attributed to Lt. McBride and published in the Oklahoma City press are deprived of any stigmatization by Codd because nothing Lt. McBride reported was false. Moreover, even though Lt. McBride reported the unfounded accusations of the FBI, there is no evidence that he did so maliciously, recklessly, or with any harmful intent. Neither is there any evidence that he adopted those accusations as his own or as those of the Oklahoma City Police Department. Second, the defen — 929 — dants did not “charge” Mr. Melton with having perjured himself.13 B. Codd does not establish a hardbound rule that truth is a complete defense to every liberty interest claim of the nature asserted by Mr. Melton. Yet, we believe, in instances such as this case, where there is no evidence of duplicity behind truthful reports, Codd exonerates the person making the report.14 To determine whether a report is truthful, however, the court must view a publication in its entirety. We reach this conclusion from the direction taken by the Supreme Court in cases involving the conflict between the right of free speech and charges of defamation. In Milkovich, 110 S.Ct. 2695, the Court’s own review of those cases led the Court to strongly imply that whether a publication is defaming is not to be determined from a single sentence, but rather from the content of a complete statement. In Milkovich, the plaintiff brought a state court action for defamation contending an article authored by the defendant contained a false accusation that plaintiff had committed an act of perjury. Analyzing the publication, the Court stated: The dispositive question in the present case then becomes whether or not a reasonable factfinder could conclude that the statements in the [publication] imply an assertion that petitioner Milkovich perjured himself in a judicial proceeding. We think this question must be answered in the affirmative. As the Ohio Supreme Court itself observed, “the clear impact in some nine sentences and a caption is that [Milkovich] ‘lied at the hearing after ... having given his solemn oath to tell the truth.’ ” (citation omitted). This is not the sort of loose, figurative or hyperbolic language which would negate the impression that the writer was seriously maintaining petitioner committed the crime of perjury. Nor does the general tenor of the article negate this impression. Id. at 2707. We believe this analysis requires us to view the sentence in the Oklahoma City Times in which Lt. McBride reported the FBI accusation in the context of the entire article. When we do this, we perceive that Lt. McBride neither accepted the FBI accusation as true, nor did he, himself, accuse Mr. Melton of perjury. Nor can it be presumed a reasonable reader would believe from the content of the article that either Lt. McBride or the other defendants had accused Mr. Melton of perjury. Furthermore, because the only disclosures contained in the article in The Daily Oklahoman which refer to the perjury accusations are attributed to “other knowledgeable sources” and not Lt. McBride, a fair reading of that article in no way impli — 930 — cates any of the defendants with the so-called stigmatizing statements.15 C. Indeed, the genesis of the liberty interest claim is action taken by a public employer against a public employee. In Owen v. City of Independence, Mo., 445 U.S. 622, 634 n. 13, 100 S.Ct. 1398, 1407 n. 13, 63 L.Ed.2d 673 (1980), the Court, commenting upon Roth, stated: We believe a distinction must be drawn between the mere reporting of a claim made by someone and the adoption of that claim as a basis for punitive action against a public employee. We also believe the Supreme Court’s use of the word “charge” in those cases from which the liberty interest claim has evolved is neither inadvertent nor insignificant. [W]e explained that the dismissal of a government employee accompanied by a “charge against him that might seriously damage his standing and associations in his community” would qualify as something “the government is doing to him,” so as to trigger the due process right to a hearing at which the employee could refute the charges and publicly clear his name. This explanation makes clear that a “charge” is simply another way of referring to “something the government is doing [to the public employee].” The reverse of this construct is that if the government does nothing to the employee, the employee has no grounds for a liberty interest claim. For that reason, the Court concluded stigmatization without a punitive action against a public employee will not violate a protected liberty interest. Paul v. Davis, 424 U.S. at 710, 96 S.Ct. at 1164. Thus, we conclude that to qualify as a “charge” within the context of Roth, a stigmatizing statement must be the basis of punitive action taken by a public entity against one of its employees. Of equal importance is the fact that Mr. Melton was not “charged” by the defendants with conduct which implicated his morality, honesty, or integrity. Plaintiff contends that the mere reporting of the FBI accusation constituted an actionable “charge,” but we do not agree. Because the defendants in this case took no action against Mr. Melton that was even impliedly the product of the false accusation of perjury, there was no “charge” of perjury made by the defendants. Neither was there an issue involved in the disciplinary process that would have permitted Mr. Melton a vehicle to clear his name of that accusation. Without such an issue, Codd implies the liberty interest name-clearing hearing is not required. There, the Court stated: [I]f the hearing mandated by the Due Process Clause is to serve any useful purpose, there must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee’s reputation. 429 U.S. at 627, 97 S.Ct. at 884. In this case, there was no factual dispute between Mr. Melton and the defendants over the question of perjury. Indeed, the evidence is quite clear the defendants concluded at an early stage of the proceeding that the accusation arose from a “misunderstanding.” It is a simple fact that the FBI accusation was neither considered relevant by the defendants in their decision to discipline Mr. Melton, nor a reason for his dismissal. As we noted in Miller, “[w]hen the termination [of a public employee] is accompanied by public dissemination of the reasons for dismissal, and those reasons would stigmatize” the employee, the concept of liberty is implicated. 705 F.2d at 373. Without either a factual dispute over the accusations or an adoption of those accusations as “the reasons for dismissal,” a name-clear — 931 — ing hearing would have been without significance. We must, therefore, conclude that the mere reporting of the defamatory accusations of a third party will not make governmental agencies or governmental officials liable for the deprivation of a protected liberty interest. That conclusion does not hold, however, if the governmental entity overtly or impliedly adopts those defamatory accusations as the basis for punitive action against an employee. We made this conclusion plain in McGhee v. Draper, 564 F.2d 902 (10th Cir.1977). In that case, a teacher was not retained by the school board. Prior to the board’s decision, however, the teacher had been made the subject of public accusations of allegedly immoral conduct. Those accusations were aired at a public hearing of the board and were the subject of comments by a board member. Unfortunately, those accusations were unfounded. Following the hearing, without explanation, the board decided not to renew the teacher’s contract. There being no evidence that the board eschewed the unfounded accusations, it is clearly in-ferable that a significant reason for its decision was the board’s adoption of the accusation the teacher was guilty of immoral conduct.16 We therefore held the evidence supported a claim for deprivation of a protected liberty interest. In this case, however, the evidence is completely contrary to the inference that the unfounded accusations played any part in Mr. Melton’s discipline. Additionally, in McGhee, there is no dispute that the employer disseminated the defamatory accusations. We said, “The Superintendent said about 200 copies of the minutes [containing the accusations] were duplicated and that ‘we put them out to the public.’ ” McGhee, 564 F.2d at 910. Despite the notions of the — 932 — dissent, McGhee is so factually distinguishable from this case that it is inapposite. In structuring the parameters of constitutional guarantees, we must be mindful that our zeal for the protection of individual right does not lead us to absurd conclusions. To hold here that the defendants were required to provide Mr. Melton with a hearing to clear his name from accusations neither made nor adopted by these defendants, or as seemingly suggested by the dissent, a name-clearing news conference, would be just such an absurdity. That portion of the judgment of the district court entered in favor of plaintiff on his liberty interest claim is VACATED. The case is REMANDED with instruction to enter judgment for the defendants on that claim. Footnotes [1] There is some confusion whether this letter constituted the “charge" which impelled the subsequent departmental disciplinary proceedings. Lt. Smith's testimony negates that notion. [2] That portion of Section 1.01 of the Oklahoma City Police Department’s Operations Manual applicable to the accusation states: "Whatever I see or hear of a confidential nature or that is confided to me in my official capacity will be kept ever secret unless revelation is necessary to the performance of my duty." [3] When cross-examined about this quote and why he did not tell the reporter that there was no longer an investigation into the accusation of perjury, Lt. McBride stated: "Well, that’s in response to a question posed to me about what part was alleged to have been perjury and I did not know and still don't know." (R.V. XII, 617). [4] About this statement Lt. McBride testified: "That was a quote taken out of an overall statement, that was not fair, that should not be reported. And I tried to discourage them from saying anything about that allegation.” (R.V. XII, 619). [5] A member of the Board, Major Maxwell, stated in response to a question whether the Board had a prehearing discussion of the accusation of perjury: "It seems that we did, ... that we discussed that allegation would not be considered, because there was, you know, it just apparently appeared to be a misunderstanding rather than anything else." [6] This is not precisely the issue raised by Mr. Melton in the district court. The liberty interest claim advanced by the plaintiff in his complaint did not distinguish between the accusation of the ethics code violation and the accusation of perjury. Indeed, the second amended complaint merely averred: In discharging Plaintiff, Defendant Lloyd Gramling did not provide Plaintiff with a hearing which would meet procedural due process requirements. Furthermore, the basis for said discharge stigmatized Plaintiff and harmed his reputation in the community and amongst his fellow officers. (R. Vol. 1, Tab 29, 9). Moreover, the plaintiffs ultimate theory pleaded was that the defendants deprived him of rights secured by the Constitution by: “discharging Plaintiff based upon false and stigmatizing charges, thereby depriving Plaintiff of liberty without due process in violation of the Fourteenth Amendment to the Constitution of the United States; ...” Id. at 10. While plaintiff now recognizes that the essence of his claim has to be the denial of a name-clearing hearing, that was not the claim he presented to the district court. Since that distinction has not been pursued to this point in the case, we shall overlook it. [7] The dissent characterizes this as a new issue neither briefed nor argued. We, nonetheless, believe the question subsumed within and essential to the issues noted for en banc review. [8] In that case, we stated: " ‘The concept of liberty recognizes two particular interests of a public employee: 1) the protection of his good name, reputation, hon- or and integrity, and 2) his freedom to take advantage of other employment opportuni-tites.’” (citations omitted). The manner in which a public employee is terminated may deprive him of either or both of these liberty interests. When the termination is accompanied by public dissemination of the reasons for dismissal, and those reasons would stigmatize the employee’s reputation or foreclose future employment opportunities, due process requires that the employee be provided a hearing at which he may test the validity of the proffered grounds for dismissal. — 926 — Miller, 705 F.2d at 373 (citations omitted) (emphasis added). [9] Defendants now argue the court should not have given any instruction on the liberty interest claim, but they failed to object to the giving of the questioned instruction. Indeed, defense counsel did little to aid the trial court in this case. [10] Because it is undisputed that the FBI’s accusation that Mr. Melton perjured himself was not "the reason[ ] for his dismissal,” there is an additional question whether this instruction conformed to the evidence. We shall not address that question because it is neither raised in nor a part of the questions for rehearing. [11] The employee does not have to prove actual denial of a job opportunity. It is sufficient that a plaintiff prove termination based upon a publicized false charge of sufficient opprobrium that would make the plaintiff an unlikely candidate for employment by a future employer. See, e.g., Green v. St. Louis Housing Auth., 911 F.2d 65, 69 (8th Cir.1990) (Stigma sufficient if it involves dishonesty, serious felony, manifest racism, serious mental illness, or the like. Such "characteristics imply an inherent or at least a persistent personal condition, which both the general public and a potential future employer are likely to want to avoid.”) [12] The significance of this fact is underscored by Codd. There, in describing the name-clearing hearing mandated by Roth, the Court stated: "Only if the employer creates and disseminates a false and defamatory impression about the employee in connection with his termination is such a hearing required.” 429 U.S. at 628, 97 S.Ct. at 884 (citations omitted) (emphasis added). It is impossible, in this case, to say the employer created the false and defamatory impression when the original disclosure came from unidentified sources. ■ If there is a “bottom line,” as suggested by the dissent, it is Codd’s use of the conjunctive requiring the employer to "create and disseminate! ]” the false impression. The dissent is willing to overlook that pregnant conjunctive. [13] The dissent contends it is significant that the police department failed to follow its own operating manual and make a formal determination of the FBI accusation. In the context of this case, that technical default really has no significance. It is undisputed that the department in fact made a determination that the accusation was groundless, and that determination was made before the hearing was held. It cannot be contended under these circumstances that the false accusation had any bearing on the disciplinary process. More importantly, as we have already noted, Codd’s requirement of a factual dispute between the employer and employee (see p. 926, supra) cannot be satisfied when both parties are in agreement that the false accusation is indeed false. [14] We have also held that falsity is an element of a public employee’s liberty interest claim. Rich v. Secretary of the Army, 735 F.2d 1220, 1227 (10th Cir.1984) (quoting Asbill v. Housing Auth. of Choctaw Nation, 726 F.2d 1499, 1501 (10th Cir.1984)); see also Derstein v. State of Kan., 915 F.2d 1410, 1414 (10th Cir.1990). Looking for parallels in state common law, we find that the literal truth of a report is a bar to a defamation action. Bahr v. Ettinger, 88 Or.App. 419, 745 P.2d 807, 808 (1987); Rosales v. City of Eloy, 122 Ariz. 134, 593 P.2d 688, 690 (Ariz.App.1979). Some courts, however, have recognized that a literally true statement, when considered in context, can lead to false impressions which create liability for defamation. The distinction between those reports which are actionable and those which are not is what the reporter intends and what the average reader perceives from the report. See Lyons v. Rhode Island Publishing Employees Council 94, 516 A.2d 1339, 1343-45 (R.I.1986). Thus, one who reports a fact with the intent that it be understood as defaming may be guilty of stigmatization that would support a liberty interest claim. See Martin v. Wilson Pub. Co., 497 A.2d 322 (R.I.1985). That, however, is not the evidence in this case. [15] The dissent appears to be willing to assume the public in Oklahoma City notwithstanding would have believed to the contrary. This assumption seems based upon the testimony of one police officer that the “law enforcement community” believed Mr. Melton was discharged for perjury. There is nothing in the evidence, however, to suggest any public perception of that result. [16] The dissent minimizes our distinction of this case from McGhee, brushing aside our analysis as "Tweedledee and Tweedledum." However, the factual distinctions cannot be so easily ignored. Those distinctions are found in these factual recitations from McGhee: In November, 1973, [plaintiff] was called to a board meeting where several persons made some accusations against her. One man called her a “sexpot” and said she taught sex in the classroom; his wife made similar comments and said she was unfit to teach students; another couple said she was immoral, her conduct was not fit and that she was unfit to teach students; another man called her a liar. McGhee, 564 F.2d at 906. On April 3 Superintendent Draper asked plaintiff to come to a board meeting that night. When she arrived students were being interviewed by the board, ... Plaintiff went in last. Mr. Draper asked her if the book, “The Angel Inside Went Sour,” was hers. [The book allegedly contained pornographic material.] She said it was not, that she had not seen it, and had not put it in the classroom. Mr. Draper replied that they had affidavits stating that David Hendren checked it out of her classroom. On April 5 the board met again without any notice or request that plaintiff appear. The minutes of that meeting state that a resolution was passed unanimously that plaintiffs contract be discontinued as of June 30, 1974, ... Thus, the letter and minutes from the board made no specific charges or findings against plaintiff. However, the minutes of the meeting on April 2 noted the appearance of a large group of protesting patrons, student statements about the book, ... the discussions on April 3 by Superintendent Draper with four students about the book matter, ... Id. at 907. ■ At the May 6 hearing, plaintiff’s attorney inquired whether the book was the reason for plaintiffs discharge. Mr. Draper replied they would have 75 people the next night if the board "rescinded itself” and that they had to work with public opinion. Plaintiff’s counsel asked defendant Billups [a board member] if he knew anything about plaintiff’s moral character, and Billups replied he knew enough to make him “sick.” There was a statement by Superintendent Draper that he recommended that the board reverse itself "because of the book,” and that he was convinced that one book had been sold by plaintiff, which a teacher should not be selling. There were some responses by board members suggesting moral improprieties, but there was no charge or finding identified as the basis of the board’s actions. Id. at 908 (footnotes omitted). It is true that the board's letters and resolutions stated no charges or findings. Nevertheless, the board’s minutes focused attention on the allegedly pornographic materials ... and affidavits held by the board charged misconduct with male students and drunkenness, all of which plaintiff denied. Id. at 910.