Harjo v. Varnum Public School

                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         NOV 27 1998
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    STEPHEN P. HARJO,

                Plaintiff-Appellant,

    v.                                                  No. 98-7023
                                                  (D.C. No. 97-CV-385-B)
    VARNUM PUBLIC SCHOOLS, a                            (E.D. Okla.)
    political subdivision of the State of
    Oklahoma; J.P. “DOC” DUVALL;
    EARL HINES; JIRL MCGINNIS;
    HELEN MCCOWN, all individually
    and in their official capacities; JOHN
    COPE, individually and in his official
    capacity as Superintendent of the
    Varnum Public Schools,

                Defendants-Appellees.




                              ORDER AND JUDGMENT       *




Before BALDOCK, EBEL, and MURPHY , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Plaintiff Stephen P. Harjo appeals the district court’s order granting

summary judgment in favor of defendants. Because plaintiff has not shown a

genuine issue of material fact regarding his claims and defendants were entitled to

judgment as a matter of law, we affirm.

      Plaintiff was hired by the Varnum Public Schools as a teacher and coach

for the 1996-97 school year. After a hearing on April 7, 1997, before Varnum’s

Board of Education, plaintiff was terminated based on the following incidents:

(1) a poorly-handled conflict with a parent during a parent-teacher conference;

(2) violation of student and parental rights to confidentiality by discussing the

conflict with another student; (3) gross misconduct in telling students he was

doing the homework of two female students and informing a male student that he

would not do the male student’s homework because his “tits weren’t as big as

hers;” (4) questioning a student about his report of the homework incident and

disagreeing with the student’s recollection, which may have intimidated the

student; and (5) criticizing a teacher for her role in bringing the homework

incident to the Superintendent’s attention. Appellant’s App. III, doc. 24 at 692.


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      Plaintiff brought this action against the school district, four board members

in their official and individual capacities, and the school superintendent in his

official and individual capacity. Alleging he was entitled to an opportunity to

correct any deficiencies under a plan of improvement before termination,

plaintiff’s complaint contained claims pursuant to 42 U.S.C. § 1983 for

deprivation of his property and liberty interests without due process of law, and

pendent state claims for breach of contract and violation of the state constitution’s

due process clause. The district court granted summary judgment in favor of all

defendants, finding no violations of federal constitutional law. Declining to

exercise supplemental jurisdiction, the court dismissed plaintiff’s state law

claims. This appeal followed.

      Summary judgment is appropriate “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 a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We review a

grant of summary judgment de novo, applying the same standard as the district

court. See Wolf v. Prudential Ins. Co. of Am.   , 50 F.3d 793, 796 (10th Cir. 1995).

      Plaintiff argues that he was entitled to an opportunity to improve his

performance before termination pursuant to Oklahoma’s Teacher Due Process Act

of 1990, Okla. Stat. tit. 70, §§ 6-101.20 to 6-101.30, and that the failure to


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provide him with such an opportunity deprived him of his property and liberty

without due process of law. We decide plaintiff’s claims by assessing first

whether his property and liberty interests were protected by the Fourteenth

Amendment, and if so, whether he was afforded “an appropriate level of process.”

Watson v. University of Utah Med. Ctr.       , 75 F.3d 569, 577 (10th Cir. 1996).


                          Deprivation of Property Interest

       Whether plaintiff had a property interest in his employment is a matter of

state law. See Board of Regents v. Roth , 408 U.S. 564, 577 (1972). Here, it is

undisputed that plaintiff had such an interest.     See Okla. Stat. tit. 70, 6-101.22(B)

(providing probationary employees may be dismissed for cause). Although the

existence of a property interest is determined by state law, federal constitutional

law determines what process is due before an employee may be deprived of that

interest. See Cleveland Bd. of Educ. v. Loudermill       , 470 U.S. 532, 541 (1985);

Ambus v. Granite Bd. of Educ.      , 975 F.2d 1555, 1568 (10th Cir. 1992),   modified

on other grounds on reh’g , 995 F.2d 992 (10th Cir. 1993).

       Federal constitutional law requires only notice and a fair and impartial

adversarial hearing before an employee may be permanently deprived of his

property interest in employment.      See Loudermill , 470 U.S. at 546-48 (setting out

pretermination and post-termination due process requirements);        Calhoun v.

Gaines , 982 F.2d 1470, 1476 (10th Cir. 1992) (noting need for full-blown

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adversarial hearing either before or after termination);   Ambus , 975 F.2d at 1568

(noting due process includes right to fair, impartial hearing). The procedures

provided in § 6-101.24 are not constitutionally required, and Oklahoma’s alleged

failure to comply with the statute did not implicate federal due process concerns.

See Loudermill , 470 U.S. at 539-41 (expressly rejecting argument that scope of

due process is determined by state procedures for termination of employment);

Tonkovich v. Kansas Bd. of Regents       , Nos. 96-3402 through 96-3408, 1998 WL

743693, at *16 (10th Cir. Oct. 26, 1998) (holding University’s failure to follow

its guidelines in overseeing grievance did not in and of itself implicate

constitutional due process concerns);     Mangels v. Pena , 789 F.2d 836, 838 (10th

Cir. 1986) (“A failure to comply with state or local procedural requirements does

not necessarily constitute a denial of due process; the alleged violation must

result in a procedure which itself falls short of standards derived from the Due

Process Clause.”).   1



       Plaintiff argues that the failure to give him an opportunity to improve his

performance somehow rendered the termination hearing inherently unfair, not


1
       Although not necessary to our decision, we also agree with the district
court’s analysis that § 6-101.24 did not require that plaintiff be placed on an
improvement plan before he could be terminated, based on the language in section
(D) of that statute. Cf. House v. Independent Sch. Dist. I-29 , 939 P.2d 1127,
1131 (Okla. 1997) (holding teacher not entitled to compliance with § 6-101.24
based on section (D)’s limitation of improvement plan procedures to enumerated
grounds for dismissal).

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impartial, and biased. As we explained, due process did not require compliance

with the statute. Upon reviewing the particular circumstances of plaintiff’s case,

we conclude his allegations are insufficient to raise a factual issue regarding an

unfair hearing.   See id. (noting due process is violated only when the risk of

unfairness is “intolerably high” under the circumstances of a particular case, and

holding complaint insufficient to overcome presumption of honesty and integrity

of decisionmakers). Plaintiff’s arguments go to the merits of the Board’s

decision, not the procedures used in affording him a hearing.


                           Deprivation of Liberty Interest

       To show a deprivation of a liberty interest, plaintiff must show the

(1) publication (2) of false statements (3) impugning the good name or reputation

of the employee (4) which occurred in the course of terminating the employee or

which foreclosed other employment opportunities.        See Watson , 75 F.3d at 579.

“No name-clearing hearing is required when the employee does not dispute the

substantial truth of the charges against him.”     Hicks v. City of Watonga , 942 F.2d

737, 746 (10th Cir. 1991).

       Here, plaintiff did not dispute the substantial truth of the conduct charged,

only the inferences to be drawn from such conduct.       See Appellant’s App. II, doc.

20 at 329-35. As plaintiff did not raise a factual question regarding the falsity of

the conduct charged, he did not demonstrate a liberty deprivation entitling him to

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due process. Further, because we have held that plaintiff received all of the

process to which he was due, including a full-blown hearing at which he had the

opportunity to clear his name, his claim that he was deprived of a liberty interest

without due process must fail.     See Tonkovich , 1998 WL 743693, at *22.

       Finally, because plaintiff did not raise a genuine dispute regarding the

deprivation of a constitutional right, defendants were properly afforded qualified

immunity for their acts taken in their individual capacities.    See Siegert v. Gilley ,

500 U.S. 226, 232 (1991) (holding assertion of the violation of a constitutional

right is a prerequisite to overcoming a claim of qualified immunity).

       The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.



                                                         Entered for the Court



                                                         Bobby R. Baldock
                                                         Circuit Judge




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