Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BENNETT, Chief Judge. TABLE OF CONTENTS I. INTRODUCTION. IQ CO A. Procedural Background. IQ CO B. Factual Background. CD CO II. LEGAL ANALYSIS. 05 CO T-t t — d A. Standards For Summary Judgment. 05 CO T — I r — I B. Constitutional Claims.1140 1. Mercer’s equal protection claim.1140 a. Elements of the claim.1140 b. Were Mercer and Peters “similarly situated”?.1141 i. The defendants’ difference based on “rank”.1142 ii. The plaintiff’s “accusation of the same conduct” test.1142 Hi The proper test .1143 iv. ’’Probationary” versus “permanent” status.1144 v. The difference in legal status here.1146 2. Mercer’s due process claim.1147 a. Waiver of the “procedural” due process claim.1148 b. Sufficiency of the “stigma” to sustain a “procedural” due process claim.1149 i. Nature of the stigma or obloquy.1150 ii. Comments on professional competence.1151 Hi. ’’Stigma” from Chief Byrne’s comments.1152 c. The “substantive” due process claim .1153 S. Qualified immunity and municipal liability.1154 C. The Sex Discrimination Claims .1155 1. The Reeves decision and the burden-shifting analysis.1156 2. Application of the burden-shifting analysis.1158 a. Mercer’s prima facie case.1158 b. The defendants’ legitimate, non-discriminatory reason.1160 c. Proof of “pretext” and “intentional discrimination”.1161 i. The third-stage analysis under Reeves. .1162 ii. The role of evidence of disparate treatment.1163 Hi. Mercer’s third-stage showing.1164 D. Slander.. 1166 1. The “twin torts” of libel and slander.1167 2. Qualified privilege .1167 a. Communication to the general public.1168 b. ’’Actual malice” and qualified privilege.1169 S. Slander and slander “per se”.1170 Ip. Falsity. 1172 E. Wrongful Discharge.1173 1. Analytical framework.1173 2. Determining public policy.1175 a. Public policy protection for a private, consensual relationship.1175 b. Public policy protection for contact with Commissioner Evans .1176 S. Jeopardy to public policy.1177 F Summary.1180 III. CONCLUSION.1180 Undaunted by denial of their previous motion to dismiss the plaintiffs federal civil rights claims arising from the plaintiffs discharge from her position as a probationary police officer, see generally Mercer v. City of Cedar Rapids, 79 F.Supp.2d 1055 (N.D.Iowa 1999), the defendants, a city and it’s former police chief, have now moved for summary judgment on all of the plaintiffs claims. Those claims include federal equal protection, due process, and sex discrimination claims, as well as state-law claims of gender discrimination, slander, and wrongful discharge, which were recently consolidated into this action. The probationary officer’s claims are premised upon her assertions that the police chief discharged her for having a consensual, extra-marital relationship with a police captain, then made allegedly defamatory comments to a newspaper about her qualifications to be a police officer. Although the court found no “insuperable bar” on the face of the pleadings to the probationary officer’s federal civil rights claims, the court must now consider whether summary judgment in the defendants’ favor is appropriate on any of the plaintiffs claims, state or federal, upon a more complete record. I. INTRODUCTION A. Procedural Background Plaintiff Teresa A. Mercer filed her original complaint in this action on December 2, 1998, following her termination on March 18, 1998, from her position as a probationary police officer with the Police Department of the City of Cedar Rapids, Iowa. Mercer named as defendants the City of Cedar Rapids (the City), and William J. Byrne (Chief Byrne), who was the Chief of Police for the City at the time Mercer was terminated. The defendants moved to dismiss the original complaint, but Senior Judge McManus determined that the motion to dismiss was mooted when Mercer filed a First Amended Complaint, which articulated somewhat more clearly Mercer’s claims of sexual discrimination, in violation of Title VII, 42 U.S.C. § 2000e-2, and claims of denial of constitutional rights to equal protection and due process, pursuant to 42 U.S.C. § 1988. The defendants renewed their motion to dismiss as to Mercer’s First Amended Complaint on April 12, 1999, but this court denied the renewed motion on the merits on December 6,1999. Thereafter, on January 27, 2000, Mercer sought leave to amend her complaint to consolidate in a single action her federal claims and three state-law claims previously asserted in a parallel action in state court. Such leave was granted, and Mercer’s Second Amended Complaint was filed, on February 1, 2000. In her Second Amended Complaint, Mercer once again alleges that Chief Byrne made the decision to terminate her, and in so doing, was acting as an agent with the full authorization of the City. See Second Amended Complaint, ¶ 6. Mercer’s Complaint now alleges the following five claims arising from Mercer’s termination or the circumstances surrounding it: Count I, pursuant to 42 U.S.C. § 1983, alleges a violation of Mercer’s civil rights in the form of denial of her federal constitutional rights to equal protection and due process; Count II alleges “a violation” of Title VII, presumably sex discrimination; Count III alleges slander based on statements Chief Byrne purportedly made to a reporter for a local newspaper at the time of Mercer’s termination; Count IV alleges wrongful discharge in violation of Iowa public policy; and Count V alleges Mercer’s termination was “on account of Plaintiffs gender” in violation of the Iowa Civil Rights Act (ICRA), IOWA CODE CH. 216. On April 14, 2000, the defendants moved for summary judgment on all of Mercer’s claims on various grounds. Mercer resisted the defendants’ motion on May 9, 2000, and subsequently filed an amendment and addendum to her Statement of Additional Facts in resistance to the defendants’ motion for summary judgment on May 30, 2000. The defendants filed a reply to the amended statement of facts on June 5, 2000. No party has requested oral arguments on the motion for summary judgment; therefore, the court finds that the motion for summary judgment is now fully submitted on the record and written arguments. The court will consider the defendants’ grounds for summary judgment se-riatim below. However, the court will first provide a brief statement of the factual background for Mercer’s claims. B. Factual Background The court will discuss here only the nucleus of undisputed facts and such of the disputed facts as are necessary to provide a factual background for the legal analysis of the defendants’ motion for summary judgment, rather than attempting to provide an exhaustive dissertation of the undisputed and disputed facts in this case. In its legal analysis, the court will address in greater detail, where necessary, Mercer’s assertions of genuine issues of material fact that may preclude summary judgment in the defendants’ favor. Unfortunately, the parties agree on very few facts. They agree that Mercer was hired as a probationary police officer by the City on March 17, 1997, and that her probationary period was for one year. They also agree that Mercer was terminated on March 13, 1998, before the end of her probationary period. Although the parties agree that defendant Byrne was the Chief of Police for the City during Mercer’s employment as a Cedar Rapids Police Officer, they disagree on the definition of his duties and the extent of his policy- and decision-making authority regarding personnel matters. The parties also agree that Mercer’s husband, now ex-husband, Shawn Mercer, was a Reserve Officer with the Cedar Rapids Police Department. The parties agree that on at least two occasions, Chief Byrne received information suggesting that Mercer was or might be involved in a relationship with Captain Peters, the head of the Special Response Team of the Cedar Rapids Police Department, although both Captain Peters and Mercer were married to other people. Captain Peters taught at the Cedar Rapids Police Academy and Mercer had been one of his students when she was a Recruit Officer. Several of Mercer’s Field Training Officers were members of the Special Response Team commanded by Captain Peters. The occasions on which a possible relationship between Mercer and Peters came to Chief Byrne’s attention apparently occurred two or three weeks apart in September or October of 1997. On both occasions, Chief Byrne received information that Mercer and Peters had been together at a local tavern. Mercer asserts that three of her Police Academy classmates were also with her at the tavern on the first occasion and that her presence in the same tavern with Captain Peters on both occasions was a coincidence, not a result of prearrangement between the two. She also asserts that it was not uncommon for Captain Peters to be at a drinking establishment with probationary officers and that Chief Byrne had never previously questioned him about such incidents. However, the parties agree that on the first of the occasions that came to Chief Byrne’s attention, Chief Byrne questioned both Mercer and Peters separately about the incident. The parties disagree about the nature of Chief Byrne’s concerns and the content of the conversations. The defendants contend that, in the course of her .conversation with Chief Byrne, Mercer acknowledged that Chief Byrne had reason to be concerned about Mercer’s behavior in being seen with Captain Peters, but Mercer asserts that she understood that Chief Byrne was concerned about drinking, not about her being at a tavern at the same time as Captain Peters. A second conversation between Byrne and Mercer occurred after Mercer and Peters were again seen together at the same tavern. At that time, the parties agree that Mercer informed Chief Byrne that she and her husband were having marital problems. Although the defendants contend that Chief Byrne never expressed an unfavorable view of any relationship between Mercer and Peters, Mercer contends that he did so on more than one occasion each to Mercer and Peters. In November of 1997, someone slashed a tire on Captain Peters’s car while it was in the parking lot of the Cedar Rapids Police Department. Captain Peters reported the incident, but did not identify a suspect, although he apparently suspected Shawn Mercer of causing the damage. Mercer contends that she did not think Shawn was responsible for slashing the car tire until he was involved in two other violent incidents. However, the defendants contend that Mercer gave inconsistent statements to Internal Affairs officers about when she suspected Shawn of slashing the tire and whether she had ever told Shawn she thought he was a suspect or thought that Internal Affairs officers considered him a suspect. Although the parties’ statements of the facts are less than clear on these matters, police reports to which the parties refer indicate that Mercer reported to the Marion Police Department two other violent incidents involving Shawn Mercer at the trailer in Marion, Iowa, where the couple and their daughter, and later just Teresa Mercer and her daughter, were living. On December 7, 1997, Mercer reported to Marion Police an incident of alleged “criminal mischief’ by Shawn Mercer, which involved vandalism to the couple’s trailer. Then, on January 8, 1998, Mercer reported that on January 7,1998, at about 1:00 a.m., Shawn Mercer had broken into the trailer, even though he was no longer living there and no longer had a key. The report indicated that Shawn was intoxicated and that a physical confrontation between Shawn and Mercer occurred. The parties agree that Mercer physically removed her husband from the trailer. Mercer contends that Shawn entered her trailer with the purpose of taking the couple’s young child away from her. The parties agree that, during this incident, Captain Peters was also at the trailer, although it is unclear whether Shawn knew that at the time, and it does not appear that Captain Peters took any part in the physical confrontation between Mercer and her husband. Mercer contends that she was afraid that Shawn was armed with his service weapon when she discovered him in the trailer. Mercer and Peters both had their service weapons at the trailer, although they state that they did not have those weapons on their persons at any time during Shawn’s intrusion. Shawn had apparently been drinking heavily prior to the intrusion and Mercer and Peters state that they had also consumed alcoholic beverages that night. The parties agree that the situation at the trader on January 7, 1998, was “volatile” and that Mercer recognized the danger at the time. Mercer contends that she delayed reporting this incident to the Marion police, because she was afraid it would prompt an investigation by the Internal Affairs Unit of the Cedar Rapids Police Department. At some point, the parties agree that Internal Affairs officers did indeed begin an investigation of these incidents, but the parties disagree strenuously about the impetus for and timing of that investigation. The defendants contend that the Internal Affairs investigation began after Internal Affairs officers were contacted by the Marion Police Department about the “criminal mischief’ incident at the Mercers’ trailer, because Marion police recognized that the incident involved a police officer and reserve officer of the Cedar Rapids Police Department. Mercer contends that Internal Affairs officers first contacted the Marion Police Department for information about the incidents, before Mercer had even reported the “intrusion” incident, and that the Internal Affairs investigation of these incidents was a pretext for an investigation of the relationship between Mercer and Peters. The parties agree that the Internal Affairs investigator questioned Mercer and Peters about their relationship, but the parties disagree about the reason for the investigator’s questions on this subject. Mercer contends that those questions were the real purpose of the Internal Affairs investigation, but the defendants contend that the purpose was to determine whether Mercer had been coerced into an unwanted relationship by a superior officer. Mercer told the Internal Affairs investigator that she was romantically involved with Peters, although Peters apparently denied that the nature of their relationship was romantic. Mercer was ordered to keep matters discussed during the Internal Affairs investigation confidential and not to discuss them with anyone but legal counsel. However, she and Peters had a meeting with Nancy Evans, the Commissioner of Public Safety, on or about January 8, 1998. Evans was an elected official and one of Chief Byrne’s superiors. At the meeting with Evans, Peters complained about Chief Byrne’s conduct, although Mercer contends that she only stated that she had never felt sexually harassed until she was questioned by Internal Affairs officers about her relationship with Peters. The defendants contend that supervising officers reported that the relationship between Mercer and Peters was causing disruption and morale problems on their shifts, but Mercer denies that any disruption of the Cedar Rapids Police Department occurred as a result of any relationship between the two. Nevertheless, following the January 7, 1998, altercation at the trailer, Chief Byrne asked both Shawn and Teresa Mercer to appear before the Functional Management Team, which is comprised of Assistant Chiefs of the Cedar Rapids Police Department, who assist the Chief in gathering facts and evaluating personnel matters. Mercer contends that she was the first department employee ever subjected to review by the Functional Management Team and that, prior to the “criminal mischief’ and “intrusion” incidents, her performance evaluations had been good. Following the meeting of the Functional Management Team, all three of the Assistant Chiefs recommended that Shawn Mercer be dismissed from the reserve unit, and two recommended that Teresa Mercer also be discharged from her probationary employment, while the third Assistant Chief was undecided. Based on the recommendation of the Functional Management Team, Chief Byrne decided to give Teresa Mercer an administrative hearing. Chief Byrne gave Mercer written notice that such a hearing was scheduled for March 10,1998, and that she could appear with counsel to present information. Mercer appeared for the hearing with counsel and presented information on her behalf. However, on March 13, 1998, Chief Byrne notified Mercer by letter that she was “released from probation effective immediately.” Defendants’ Attachments To Statement Of Undisputed Material Facts, Exhibit E. The letter also stated, “It is my determination that you do not meet the standards required of a police officer on the Cedar Rapids Police Department.” Id. Shawn Mercer was also removed as a Reserve Police Officer on March 12, 1998, after an Internal Review Board Meeting on February 23, 1998. Captain Peters was not discharged, although he was reassigned to different duties. On March 14, 1998, an article with the headline “Officer loses job; had relationship with co-worker” appeared in The Cedar Rapids Gazette concerning Teresa Mercer’s discharge. The article stated, in pertinent part, as follows: Veteran Cedar Rapids police Capt. Phil Peters got a lateral reassignment in January from the command job he loved. On Friday, the probationary female officer with whom he had an off-duty relationship that attracted the police chiefs concern lost her job. Police Chief Bud Byrne last night downplayed officer Teresa Mercer’s dismissal, saying it is not uncommon for a member of the probationary class to lose the job in the year before a permanent assignment begins. The probationary year, which for Mercer was to have ended in a few days, gives the department and the officer a chance to see if police work is right for the officer, Byrne said. “And so it’s not an unusual thing to find people who just don’t meet up,” Byrne said. Byrne has not publicly detailed what he objected to about the relationship between Peters and Mercer other than to say any off-duty relationship that “adversely affects the workplace has to be addressed.” Defendants’ Attachments To Statement Of Undisputed Material Facts, Deposition Exhibit 1. By letter from her counsel, Mercer informed Chief Byrne that she believed that certain of the statements attributed to him in the newspaper article were untrue and defamatory and she demanded a retraction of those statements. Plaintiffs Reply to Statement Of Undisputed Material Facts And Statement Of Additional Facts, Exhibit 3, p. 1. However, Mercer has not received any response to that letter. Following her discharge from the Cedar Rapids Police Department, Mercer was unable to find employment as a police officer with any other law enforcement agency until some time in May of 2000. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed. R. Civ. P. 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Summary Judgment Rule 56. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(b) & (c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). As to whether a factual dispute is “material,” the Supreme Court has explained, “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir.1995); Hartnagel, 953 F.2d at 394. If a party fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is “entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 113 F.3d 1484, 1492 (8th Cir.1997). In reviewing the record, the court must view all the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts. See Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348; Quick, 90 F.3d at 1377 (same). With these standards in mind, the court turns to consideration of the defendants’ motion for summary judgment on Mercer’s federal and state-law claims. B. Constitutional Claims Mercer’s constitutional claims, pursuant to 42 U.S.C. § 1983, in Count I of her Second Amended Complaint, are alleged as follows: 7. Defendants’ termination of Plaintiff was based in part on consideration of Plaintiffs gender in that others who had committed the same acts as alleged to be the basis for Plaintiffs termination were not terminated or similarly disciplined. 8. Defendants were acting under col- or of State law when they terminated Plaintiff, which act constituted the deprivation of Plaintiffs civil rights actionable under 42 U.S.C. § 1983, in the following particulars: a) Plaintiffs termination resulted from her involvement in a relationship with another officer when both Plaintiff and that other officer were married. Plaintiff was subjected to a trumped up internal affairs investigation involving repeated inquiries into matters of a personal nature, and was fired as a consequence of her participation in the relationship, while the other party to the relationship was not terminated. Plaintiff was thereby denied equal protection under the law in that she was discriminated against on the basis of her gender. b) At the time of Plaintiffs termination, Defendant Byrne made statements to the media which stigmatized Plaintiff as a person incapable of performing the duties of a police officer. Plaintiff was offered no opportunity in a public hearing to rebut those stigmatizing statements, and was thus deprived of a constitutionally protected occupational liberty interest without due process of law. Second Amended Complaint, Counts I and II, at ¶¶ 7-8. Thus, Mercer expressly asserts both an equal protection claim and a due process claim arising from her termination in a single count alleging violations of her civil rights. Moreover, according to the allegations of the Second Amended Complaint, the two claims are asserted on the basis of distinct factual circumstances, although both are related to Mercer’s termination: Mercer’s equal protection claim is based on her allegedly disparate treatment from a similarly situated male, Captain Peters, who was not discharged for his involvement in their relationship, whereas she was, see id. at ¶ 8(a), while Mercer’s due process claim is based on allegedly stigmatizing statements by Chief Byrne at the time of her discharge. See id. at ¶ 8(b). The defendants contend that they are entitled to summary judgment on both of Mercer’s constitutional claims. The court will consider separately the defendants’ grounds for summary judgment on these two claims. 1. Mercer’s equal protection claim a. Elements of the claim In its ruling On the defendants’ motion to dismiss, this court explained, To prove an equal protection claim, a public employee must show (1) that he or she was singled out and treated differently from persons similarly situated, and (2) that the plaintiff was singled out on the basis of a prohibited characteristic, such as gender. See Ellebracht v. Police Bd. of Metro. Police Dep’t of St. Louis, 137 F.3d 563, 566 (8th Cir.1998). Therefore, this court concludes that a public employee sufficiently alleges discriminatory discharge in violation of equal protection rights where the employee alleges that he or she was singled out for termination on the basis of gender, while employees of the opposite gender guilty of the same conduct upon which termination was purportedly based were not terminated. Cf. Backlund v. Hessen, 104 F.3d 1081, 1032 (8th Cir.1997) (allegations that a fire department discriminated against the plaintiff in violation of the equal protection clause, because he was not related to any present or past fire department employees, was sufficient to state a claim). Mercer, 79 F.Supp.2d at 1062-63. This court has elsewhere explained that, “[a]bsent a threshold showing that [the plaintiff] is similarly situated to those who allegedly received favorable treatment, the plaintiff does not have a viable equal protection claim.” Mummelthie v. City of Mason City, Iowa, 873 F.Supp. 1293, 1333 (N.D.Iowa 1995) (citing Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir.1994), cert. denied, 513 U.S. 1185, 115 S.Ct. 1177, 130 L.Ed.2d 1130 (1995)), aff'd, 78 F.3d 589 (8th Cir.1996) (table op.); accord Arnold v. City of Columbia, Mo., 197 F.3d 1217, 1220 (8th Cir.1999) (“To prove their equal protection claim [based on disparate pay], appellant [police officers] were required, as a threshold matter, to demonstrate that they were treated differently from others similarly situated to them.”) (emphasis in the original); Roark v. City of Hazen, Ark., 189 F.3d 758, 761 (8th Cir.1999) (a city police chiefs equal protection claim failed, because he presented no evidence showing that he was treated in a manner different from that accorded other similarly situated individuals). “[Dissimilar treatment of dissimilarly situated persons does not violate equal protection.” Id.; accord Arnold, 197 F.3d at 1221 (“ ‘Treatment of dissimilarly situated persons in a dissimilar manner by the government does not violate the Equal Protection Clause.’ ”) (quoting Keevan v. Smith, 100 F.3d 644, 648 (8th Cir.1996)). Although this court concluded that Mercer adequately pleaded the elements of her equal protection claim, in denying the defendants’ motion to dismiss this claim, the critical issue on the defendants’ motion for summary judgment is whether there is a genuine issue of material fact in the record as a whole on the threshold question of whether Mercer was actually subjected to different treatment, on the basis of her gender, than any “similarly situated” male. See Fed. R. Civ. P. 56(c); see also Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 (if a party fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is “entitled to judgment as a matter of law”); In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 113 F.3d at 1492 (same). b. Were Mercer and Peters “similarly situated”? The defendants contend that Mercer was not treated differently on the basis of gender than any other person to whom she was similarly situated. The defendants contend that the difference in rank between Captain Peters and Probationary Officer Mercer means that they were not similarly situated and that it was on the basis of their difference in rank, not gender, that the two officers involved in the relationship were treated differently, if indeed their relationship was the impetus for Mercer’s discharge, which the defendants deny. The defendants point out that Mercer and her husband were similarly situated, as both were engaged in the altercation at the trailer, which the defendants contend was the real reason for disciplinary action, and both were terminated. Mercer contends that her equal protection claim must survive the defendants’ motion for summary judgment, because she is similarly situated to Captain Peters, their differences in rank notwithstanding, because she and Captain Peters were both accused of the same conduct, which she alleges was their extra-marital relationship, but they were disciplined in different ways. Mercer also contends that the defendants’ argument for dissimilarity based on rank fails with the defendants’ concession that Mercer and her husband, a Probationary Officer and a Reserve Officer, respectively, were both terminated for the same purported misconduct, despite the difference in their ranks. i. The defendants’ difference based on “rank.” The defendants contend that Post v. Harper, 980 F.2d 491 (8th Cir.1992), is “[o]f particular significance” to their argument that the difference in “rank” between Mercer and Peters demonstrates that they were not “similarly situated.” Defendants’ Brief In Support Of Motion For Summary Judgment at 5. In Post, the court found that a county employee was not similarly situated to elected public officials, and therefore his equal protection claim, which was founded on his disparate treatment from such officials, failed. See Post, 980 F.2d at 495. However, this court does not read Post to stand for so broad a proposition as a rule that police officers of different rank are not “similarly situated,” at least not in circumstances where neither officer was an elected official. Nevertheless, the Post decision is instructive, because it does explain that “the essence of equal protection analysis [is that] similarly situated people must receive similar treatment under the law,” and where the persons identified for comparison are “not similarly situated, either in fact or in contemplation of law,” the plaintiffs disparate treatment claim cannot be sustained. Id. (concluding that, “[a]s a county employee, Post is not similarly situated, either in fact or in contemplation of law, to elected public officials or to municipal employees”). Although the plaintiff in Post argued “that the differences in the legal protection afforded to county employees, as distinguished from those afforded to county officials or municipal employees, are not rationally related to legitimate governmental interest,” the court found “[h]is arguments are unpersuasive and do not warrant extended discussion.” Id. Thus, Post indicates that differences in the degree of legal protection afforded the persons identified as similarly situated are not only relevant to the “similarly situated” analysis, but may be outcome determinative, unless such differences are not rationally related to a legitimate governmental interest. ii. The plaintiff’s “accusation of the same conduct” test. Mercer contends, however, that “[ejmployees are similarly situated when they are involved in or accused of the same or similar conduct and are disciplined in different ways,” citing Williams v. Ford Motor Co., 14 F.3d 1305, 1309 (8th Cir.1994), and Wallin v. Minnesota Dep’t of Corrections, 153 F.3d 681, 687 (8th Cir.1998), cert. denied, 526 U.S. 1004, 119 S.Ct. 1141, 143 L.Ed.2d 209 (1999). Mercer apparently asserts that this “accusation of the same conduct” test is the sole test of whether employees are “similarly situated.” The court does not agree. Neither of the cases Mercer cites supports the exclusivity of the “accusation of the same conduct” test. The court acknowledges that Wallin, an ADA case, does indeed state the general proposition on which Mercer relies. See Wallin, 153 F.3d at 687 (“Employees are similarly situated when they ‘are involved in or accused of the same or similar conduct and are disciplined in different ways.’ ”) (quoting Williams, 14 F.3d at 1309). However, in Wallin, the court held that the plaintiff was not similarly situated to the other employees he cited for comparison, “because their misconduct was not as egregious as Wallin’s.” Id. Thus, the Wallin decision can be read as relying on only one prong of the test as stated in Post, that the other employees were not similarly situated “in fact,” which obviated the need to reach the question of whether the employees were similarly situated “in contemplation of law,” the other prong of the test as stated in Post. See Post, 980 F.2d at 495. Similarly, in Williams, a Title VII race discrimination case on which both Mercer and the Wallin decision rely, the court acknowledged that “ ‘for purposes of establishing a pñma facie case [the court] consider[s] whether the employees are involved in or accused of the same or similar conduct and disciplined in different ways.’ ” See Williams, 14 F.3d at 1309 (emphasis added) (quoting Boner v. Board of Comm’rs, 674 F.2d 693, 697 (8th Cir.1982)). However, when the court found that the pñma facie case had been rebutted by the employer’s articulation of a legitimate, non-discriminatory reason for its decision to treat the plaintiff differently from other employees disciplined for the same rule infraction, the court found that the plaintiff and the other employees were not “ ‘similarly situated in all relevant respects.’ ” See id. (quoting Smith v. Monsanto Chem. Co., 770 F.2d 719, 723 (8th Cir.1985), cert. denied, 475 U.S. 1050, 106 S.Ct. 1273, 89 L.Ed.2d 581 (1986), in turn quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). Instead, the court recited a laundry list of factual differences between the plaintiff and the employees with whom he compared himself to demonstrate that the plaintiff and the other employees were not “similarly situated in all relevant respects.” Id. at 1309-10. Thus, the question of whether the employees were “similarly situated” in Williams was also ultimately settled on the basis of relevant factual differences — apart from whether the employees were accused of the same conduct — without recourse to the “in contemplation of law” prong of the analysis articulated in Post. This court does not read either Wallin or Williams, or any of the other decisions reciting that “employees are similarly situated when they are involved in or accused of the same or similar conduct and are disciplined in different ways,” to stand for the proposition that the exclusive test of whether persons are similarly situated is whether they have been accused of the same conduct, but treated differently. See, e.g., Ward v. Procter & Gamble Paper Prods. Co., 111 F.3d 558, 560 (8th Cir.1997) (noting, in a Title VII race discrimination case, that “[e]mployees are similarly situated when they are involved in or accused of the same offense and are disciplined in different ways”) (emphasis in the original; citations and internal quotation marks omitted); Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir.1994) (stating, in a Title VII race discrimination case, that “[e]mployees are similarly situated when they are involved in or accused of the same offense and are disciplined in different ways”) (citations and internal quotation marks omitted). Although this factual test may be dispositive of the question of whether the plaintiff has stated a pñma facie case of disparate treatment, at least in the absence of evidence that the employees are not similarly situated “in contemplation of law,” see Williams, 14 F.3d at 1309 (employing this factual test of whether employees were “similarly situated” to determine whether the plaintiff had established a pñma facie case of disparate treatment), or even dispositive of the plaintiffs disparate treatment claim when factual differences in the plaintiffs conduct as compared to other employees demonstrate that the employees are not “similarly situated,” see Wallin, 153 F.3d at 687; Ward, 111 F.3d at 560 (finding that the plaintiff and another employee “were not similarly situated because their offenses were quite different”); Harvey, 38 F.3d at 972 (finding the situation of other employees accused of various types of misconduct was factually dissimilar from the misconduct of the plaintiff, a security supervisor, in ignoring a life-threatening situation), these effects do not make “accusation of the same conduct” the only test for determining whether identified employees are “similarly situated” to the plaintiff. iii. The proper test. Rather, as Williams specifically states, the proper formulation of the test of whether identified employees are “similarly situated” is whether the employees are “similarly situated in all relevant respects.” See Williams, 14 F.3d at 1309 (emphasis added). Other decisions of the Eighth Circuit Court of Appeals also make clear that the employees identified for comparison must be "similarly situated in all relevant respects," not simply in terms of whether they were accused of the same conduct. See Lynn v. Deaconess Med. Center-West Campus, 160 F.3d 484, 487 (8th Cir.1998) (the plaintiff asserting disparate treatment "has the burden of proving that he and the disparately treated [co-employees] were 'similarly situated in all relevant respects' ") (quoting Harvey, 38 F.3d at 972); Ward, 111 F.3d at 560; Harvey, 38 F.3d at 972. Indeed, in Lynn, a panel of the Eighth Circuit Court of Appeals specifically rejected the contention that the exclusive test of whether employees are similarly situated is whether they are accused of "the same or similar conduct," noting that other facts may also provide the relevant respects in which the parties are "similarly situated." See Lynn, 160 F.3d at 488 (rejecting the contention that "employees are similarly situated only when they engage in the same offense") (emphasis in the original). The court found that the exclusivity of the "accusation of the same conduct" test could not be drawn from Ward, 111 F.3d 558, upon which the defendant and the district court had relied, because in Ward, the court had first stated the test in terms of whether the plaintiff could prove that she and the other employees were "`similarly situated in all relevant respects.'" Lynn, 160 F.3d at 488 n. 5 (quoting Ward, 111 F.3d at 560). Moreover, the court in Lynn found that the Ward decision explained that courts must look beyond labels attached to misconduct to determine whether there are levels of misconduct within the same "label." Id. (citing Ward, 111 F.3d at 561). The court in Lynn concluded that "accusation of the same conduct" was not even the proper formulation of the question of factual similarity; rather, the proper question was whether the employees engaged in conduct "of 'comparable seriousness.'" Id. at 488 (quoting Ricks v. Riverwood Int'l Corp., 38 F.3d 1016, 1019 (8th Cir.1994), and also citing McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1261 (10th Cir.1988)). The court explained, To require that employees always have to engage in the exact same offense as a prerequisite for finding them similarly situated would result in a scenario where evidence of favorable treatment of an employee who has committed a different but more serious, perhaps even criminal offense, could never be relevant to prove discrimination. Common sense as well as our case law dictate that we reject such an approach. Lynn, 160 F.3d at 488. The court concluded that another employee's "sleeping on the job was at least comparable to, if not more serious than, the misconduct alleged against [the plaintiff]," and therefore, "[u]nder the circumstances, we find that [the two employees] were similarly situated." Id. Thus, the Eighth Circuit Court of Appeals expressly recognized in Lynn that whether employees are "similarly situated in all relevant respects" extends beyond the factual identity or similarity of the conduct of which they are accused. As this court explained above, the Post decision recognizes further that conduct is not the only "relevant respect" for comparison of employees, because "relevant respects" necessarily include consideration of whether employees are "similarly situated" both "in fact" and "in contemplation of law." See Post, 980 F.2d at 495. iv. "Probationary" versus `~permanent" status. Recognizing that the employees under comparison must be "similarly situated in all relevant respects," including "in contemplation of law," the court turns to the question of whether probationary employees are so different "in contemplation of law" from permanent employees that they are not, as a matter of law, "similarly situated." The court acknowledges that the defendants' arguments for summary judgment on Mercer's equal protection claim only mart-fully raise the difference in legal status between Mercer, as a probationary employee, and Peters, as a permanent employee, because the defendants instead referred primarily to the difference in rank between Mercer and Peters. Nevertheless, the defendants have frequently pointed out that Mercer was only a probationary officer, while Peters was a permanent employee, with fifteen years of experience, occupying a supervisory position, and holding a civil service rank of police captain. Furthermore, in their argument for Chief Byrne’s qualified immunity, the defendants specifically assert, Teresa Mercer and Captain Peters were not similarly situated, factually or legally [,] within the Police Department. In this regard, see generally Iowa Code Section 408(3)[sic] requiring a twelve month probationary period for newly hired police officers and consequent lack of civil service or other employment protection. Defendants’ Brief In Support Of Motion For Summary Judgment at 10 (emphasis added). These assertions, the court concludes, are sufficient to put at issue whether Mercer and Peters were “similarly situated” “in contemplation of law” on the basis of her probationary employment status versus his permanent employment status. Decisions of the Eighth Circuit Court of Appeals are instructive on the question of whether probationary and permanent employees are “similarly situated.” For example, in Ghane v. West, 148 F.3d 979 (8th Cir.1998), a case involving race and national origin discrimination claims pursuant to Title VII, the court held that the plaintiffs probationary status meant that he was not similarly situated, as a matter of law, to permanent employees with whom he compared himself: In support of his pretext argument on appeal, Ghane argues that other non-Iranian employees were also late in completing work assignments and sometimes required substantial revisions of their written work. Brief for Appellant at 15. In response, hoioever, appellee argues, that those employees were not similarly situated to Ghane in that they were not probationary employees their work deficiencies did not rise to the level of Ghane’s. Brief for Appellee at 16 (citing Appellant’s Appendix at 59 (affidavit of Richard T. Medary)). Having carefully reviewed the record, we conclude that Ghane’s disparate treatment argument is insufficient as a matter of laio to. support a reasonable inference that appellee’s proffered reasons are pretexts for intentional discrimination based on race or national origin because Ghane has not demonstrated that those individuals to whom he compares himself are similarly situated in all relevant respects. See, e.g., Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir.1994) (instances of disparate treatment can support claim of pretext, but the plaintiff has the burden to show that he or she is similarly situated in all relevant respects to the individuals who were treated more favorably). Ghane, 148 F.3d at 982 (emphasis added). Similarly, in Herr v. Airborne Freight Corp., 130 F.3d 359 (8th Cir.1997), a Title VII sex discrimination case, the court observed, Herr cannot meet her burden of proving that she was similarly situated to these male employees in all relevant respects. See Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir.1994). Herr’s poor performance occurred when she was a probationary driver, unprotected by the collective bargaining agreement and its discipline process that governed permanent drivers. Moreover, there is no reason for Airborne to issue discipline letters to casual drivers because its recourse for a casual driver’s poor performance is not to give that driver more work. Thus, Herr was not similarly situated to male permanent drivers regarding disciplinary procedures. Herr, 130 F.3d at 362 (emphasis added); see also Kramer v. Logan County Sch. Dist. No. R-1, 157 F.3d 620, 628 (8th Cir.1998) (Hansen, J., dissenting) (“Needless to say, tenured teachers are not similarly situated to probationary teachers,” citing NEB. REY. STAT. §§ 79-828(4) & 79-829 (1996)). Decisions of other courts are in agreement. See, e.g., Holbrook v. Reno, 196 F.3d 255, 262 (D.C.Cir.1999) (“We cannot see how Holbrook, a probationary trainee [with the FBI], could possibly be similarly situated to a fifteen-year veteran with supervisory responsibilities,” noting that in McKenna, infra, the court had held that a probationary employee was not similarly situated to a permanent employee, when agency regulations mandated termination of probationary employees with performance problems, even if such problems would not have been good cause to terminate a permanent employee); McKenna v. Weinberger, 729 F.2d 783, 789 (D.C.Cir.1984) (a female probationary employee was not similarly situated to male permanent employees); Walker v. Runyon, 979 F.Supp. 1363, 1368 (D.Kan.1997) (a black probationary employee was not similarly situated to a white employee who was never on probation during plaintiffs tenure); Williams v. Cuomo, 961 F.Supp. 1241, 1245 (N.D.Ill.1997) (where a black male was the only probationary employee, there were no similarly situated employees), aff'd, 151 F.3d 1035 (7th Cir.1998), cert. denied, 525 U.S. 1160, 119 S.Ct. 1070, 143 L.Ed.2d 74 (1999). v. The difference in legal status here. The pertinent statutory provision regarding Mercer’s and Peters’s employment status is IOWA CODE § 400.8(3), which, at the time of Mercer’s employment, stated the following: 3. All appointments to such [civil service] positions [with cities with the requisite population, as stated in § 4,00.6] shall be conditional upon a probation period of not to exceed six months, and in the case of police patrol officers, police dispatchers, and fire fighters a probation period not to exceed twelve months. However, in cities with a population over one hundred seventy-five thousand, appointments to the position of fire fighter shall be conditional upon a probation period of not to exceed twenty-four months. During the probation period, the appointee may be removed or discharged from such position by the appointing person or body without the right of appeal to the commission. A person removed or discharged during a probationary period shall, at the time of discharge, be given a notice in writing stating the reason or reasons for the dismissal. A copy of such notice shall be promptly filed with the commission. Continuance in the position after the expiration of such probationary period shall constitute a permanent appointment. Iowa Code § 400.8(3) (1999) (emphasis added). By establishing Mercer’s initial employment status as probationary, and permitting her discharge during the probationary period “without the right to appeal to the commission,” and distinguishing that status from permanent employment enjoyed by Captain Peters, this provision establishes a relevant legal distinction between Mercer’s and Captain Peters’s employment statuses, and thus establishes that they are not “similarly situated ... in contemplation of law.” See Post, 980 F.2d at 495 (the persons identified for comparison must be “similarly situated” both “in fact” and “in contemplation of law”). A conclusion that the differences in the legal protection under Iowa’s civil service statute afforded permanent employees, as distinguished from probationary employees, particularly in law enforcement positions, are “rationally related to legitimate governmental interest,” as in Post, “do[es] not warrant extended discussion.” Id. Thus, Mercer, a probationary employee, was not, as a matter of law, similarly situated to Captain Peters, a permanent officer. See Ghane, 148 F.3d at 982; Herr, 130 F.3d at 362; accord Holbrook, 196 F.3d at 262 (“We cannot see how Holbrook, a probationary trainee [with the FBI], could possibly be similarly situated to a fifteen-year veteran with supervisory responsibilities”). They were not similarly situated “in all relevant respects,” see Lynn, 160 F.3d at 487; Ghane, 148 F.3d at 982; Herr, 130 F.3d at 362; Ward, 111 F.3d at 560; Harvey, 38 F.3d at 972; Williams, 14 F.3d at 1309, that is, they were not similarly situated “in contemplation of law.” Post, 980 F.2d at 495. In these circumstances, the defendants are entitled to summary judgment on Mercer’s equal protection claim as a matter of law, because Mercer cannot establish a threshold element of that claim. See Fed. R. Civ. P. 56(c) (summary judgment may be granted where the record “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”); see also Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 (if a party fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is “entitled to judgment as a matter of law”); In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 113 F.3d at 1492 (same). 2. Mercer’s due process claim The court turns next to the defendants’ motion for summary judgment on the second of Mercer’s constitutional claims, her due process claim. In their motion for summary judgment, the defendants contend that the record demonstrates that there was no impingement upon Mercer’s protected liberty interest in her employment — an essential prerequisite to her due process claim — because no sufficient “stigma” was attached to her by Chief Byrne’s comments on her ability to “meet up” with the standards for a police officer. The defendants also contend that Mercer waived any right to a post-termination “name-clearing” hearing, because, although Chief Byrne advised Mercer that she could request a public hearing in the letter informing her of her termination, Mercer has never requested such a hearing. The defendants contend further that such a hearing, rather than money damages or reinstatement, is the only remedy available for the due process violation alleged. Mercer contends that Chief Byrne’s comments did have a sufficiently stigmatizing effect, as she had been foreclosed (at the time her brief was filed) from obtaining any employment as a police officer after her dismissal. Mercer also contends, for the first time, that she is asserting a “substantive due process” claim, as well as a “procedural due process” claim. She contends that “stigma” is irrelevant to a “substantive due process” claim, as such a claim instead turns on the arbitrariness and capriciousness of the state actor’s conduct. She contends that dismissal of the female participant in an affair, but not the male participant, is sufficiently arbitrary and capricious to sustain her claim. In their reply to Mercer’s amendment of her statement of facts, which withdrew the paragraph asserting that Mercer had been unable to find employment as a law enforcement officer as a result of Chief Byrne’s comments upon her dismissal, the defendants contend that Mercer’s entire due process claim “collapses.” They contend that this is so, because Mercer has not been foreclosed from further employment, even assuming “foreclosure of employment” is the proper standard for determining the constitutional dimensions of “stigma” on Mercer’s due process claim. The court’s analysis of these arguments begins with the question of whether Mercer has waived her “procedural” due process claim. Only if the court finds that Mercer has not waived the claim will it be necessary for the court to consider whether genuine issues of material fact on the essential element of “stigma” preclude summary judgment in the defendants’ favor. Because there is no assertion that Mercer has “waived” her “substantive” due process claim, the court will also give separate consideration to that claim. a. Waiver of the “procedural” due process claim The defendants contend that Mercer has waived any right to a post-termination “name-clearing” hearing, and hence has waived her “procedural” due process claim, because she has never requested a name-clearing hearing, even though Chief Byrne advised her that she could request a public hearing in the letter informing her of her termination. This contention fails upon examination of the record in light of the applicable law. As explained in this court’s ruling on the defendants’ motion to dismiss, under the applicable law, a public employee’s liberty interest, the basis for a due process claim, is impinged “when, in connection with the employee’s discharge, a government official makes [public] accusations that seriously damage the employee’s standing in the community or foreclose other employment opportunities.’” Mercer, 79 F.Supp.2d at 1063 (quoting Johnson, 113 F.3d at 843); see also id. (citing Johnson, 113 F.3d at 844, and Bell v. Sellevold, 713 F.2d 1396, 1401 (8th Cir.1983), cert. denied, 464 U.S. 1070, 104 S.Ct. 978, 79 L.Ed.2d 215 (1984), for the requirement that the stigmatizing comments must be made to the public). “ ‘A public employee is [therefore] entitled to notice and a name-clearing hearing when fired under circumstances imposing a stigma on her professional reputation.’ ” Id. (quoting Graning, 172 F.3d at 616). Thus, the stigmatizing comments on which Mercer’s due process claim depend are the public comments attributed to Chief Byrne in The CedaR Rapids Gazette concerning Mercer’s discharge. See generally Coleman v. Reed, 147 F.3d 751, 755 (8th Cir.1998) (defining the elements of a public employee’s due process claim based on loss of a protected liberty interest as follows: “First, she must show that the reason for her discharge stigmatized her[;][s]econd, she must show that the [defendants] made those reasons public[;][and][f]inally, [the plaintiff] must establish that she denied the charges for which she was terminated.”) (internal citations omitted); see also id. (limiting the comments relevant to the due process claim to “the only charges published in the statement approved by [the defendant]”); Waddell v. Forney, 108 F.3d 889, 896 (8th Cir.1997) (statements allegedly made during a private meeting could not be the basis for a due process claim). Turning from the applicable law to the pertinent facts, it is true that, in the March 13, 1998, letter notifying Mercer of her termination, Chief Byrne offered Mercer the opportunity to request a hearing in a public forum concerning her discharge. See Defendants’ Attachments To Statement Of Undisputed Material Facts, Exhibit E (“If you desire an opportunity to present information, evidence, or arguments at a public forum subsequent to your probationary release from employment, please contact my office and I will arrange such an opportunity.”). It is also true that the termination letter stated grounds for termination that are similar to those Chief Byrne allegedly made public. See id. (“It is my determination that you do not meet the standards required of a police officer on the Cedar Rapids Police Department.”), and compare Defendants’ Attachments To Statement Of Undisputed Material Facts, Deposition Exhibit 1 (newspaper article dated March 14, 1998, quoting Chief Byrne as stating that Mercer did not “meet up” with the standards for police officers). However, the offer of a name-clearing hearing stated in the termination letter was made in reference to comments in a private communication, that is, in the termination letter to Mercer, before any public comments on which a due process claim could be founded were made. See Coleman, 147 F.3d at 755 (limiting the comments relevant to the due process claim to “the only charges published in the statement approved by [the defendant]”); Waddell, 108 F.3d at 896 (statements allegedly made during a private meeting could not be the basis for a due process claim). The public comments that are allegedly sufficiently stigmatizing to sustain Mercer’s due process claim were not made until March 14, 1998. See Defendants’ Attachments To Statement Of Undisputed Material Facts, Deposition Exhibit 1 (newspaper article dated March 14, 1998). The record does not show that any name-clearing hearing was offered after or in regard to these public comments. Thus, the record discloses no offer of a name-clearing hearing in relation to the comments giving rise to Mercer’s “procedural” due process claim, so that Mercer could not have “waived” such a claim by failing to take advantage of the offered hearing. The record does, however, indicate that on March 17,1998, Mercer asserted to Chief Byrne that his public comments were defamatory and that she demanded a retraction and redress, but she has never received any response from Chief Byrne. See Plaintiff’s Reply to Statement Of Undisputed Material Facts And Statement Of Additional Facts, Exhibit 3 (letter from Mercer’s counsel to Chief Byrne), p. 1 (asserting the public comments were untrue and defamatory and demanding a retraction) & p. 3 (demanding that Chief Byrne “restore [Mercer] to the dignity and honor which she held before the publication of your comments.... ”). Although the letter did not contain an express demand for “a name-clearing hearing,” it did contain a demand for restoration of Mercer’s “dignity.” Id. at p. 3. From these facts, the court concludes that Mercer adequately invoked the right to a name-clearing hearing. Moreover, the law places the onus upon the public employer to provide a name-clearing hearing when circumstances require; it does not appear to require the plaintiff to demand such a hearing. See Mercer, 79 F.Supp.2d at 1063. Thus, the record does not demonstrate that Mercer has waived her “procedural” due process claim as a matter of law. The record instead demonstrates, beyond dispute, that Mercer affirmatively asserted a demand for redress of the “procedural” due process violation prior to filing suit, but received no response. In these circumstances, the defendants are not entitled to summary judgment on Mercer’s “procedural” due process claim on the basis of their argument that Mercer has “waived” her “procedural” due process claim, because no such “waiver” has occurred as a matter of law. See Fed. R. Civ. P. 56(c) (summary judgment may be granted only where the record “show[s] that there is no genuine issue as to any material