UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-60073
Summary Calendar
HERMAN SHOWS,
Plaintiff-Appellant,
VERSUS
WAYNE COUNTY SCHOOL DISTRICT, ET AL.,
Defendants-Appellees
Appeal from the United States District Court
For the Southern District of Mississippi
(4:93cv30LN)
November 8, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Plaintiff/Appellant, Herman Shows, claims his due process
rights were violated when his fifth grade teaching position was
terminated after a hearing he requested but did not attend. The
district court dismissed Shows’s claims by summary judgment finding
1
Local Rule 47.5 provides: “The publication of opinions that have
no precedential value and merely decide particular cases on the
basis of well-settled principles of law imposes needless expense on
the public and burdens on the legal profession.” Pursuant to that
Rule, the Court has determined that this opinion should not be
published.
that the procedures employed by the Defendants afforded Shows
adequate due process and that it lacked jurisdiction over Shows’s
accompanying state law defamation and conspiracy claims. Shows
appeals the due process ruling. We affirm.
Facts
On Wednesday, March 31, 1993, a group of parents presented
letters to the Wayne County School District (WCSD) superintendent
accusing Shows of sexual misconduct with their daughters, fifth-
grade students in Shows’s class, and tying one student to her desk
with a jump rope.2 Later that day, Shows’s principal informed
Shows of the charges, read him the parents’ statements and allowed
Shows to deny or explain the charges. Shows and the principal then
met with the superintendent where the allegations were again
discussed and Shows was given another opportunity to deny or
explain the charges. Shows did not deny that he touched the
students, and he affirmed that he tied one of the students to her
desk. Shows was suspended3 with pay which was confirmed by a
letter that also stated that Shows had a right to a hearing,
representation by counsel at the hearing and presentation and
cross-examination of witness.
The following Monday, April 5, 1993, the school board convened
2
Although the parents’ other allegations against Shows charged
sexual misconduct, the incident with the jump rope appears to have
been disciplinary in purpose, and there is no suggestion of any
sexual quality in it.
3
A glossary of terms will be helpful. The terms “suspend” and
“dismiss” mean continued employment but no classroom duties pending
final determination after hearing. “Termination” means actual
severance of the employment relationship.
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for its regular meeting where the charges were discussed in
executive session outside the presence of the public and Shows.
Either at or before the meeting, each board member was provided
with copies of the parents’ original statements and other
statements taken in the course of the investigation of the charges.
The superintendent verbally presented generalized, hearsay-based
information regarding prior allegations of sexual misconduct with
students. Upon adjourning the executive session, the board voted
to dismiss Shows pending a hearing.
Shows requested a hearing which was scheduled for April 22,
1993 before an independent hearing officer, but neither Shows nor
his attorney attended. As explained by his attorney in
correspondence dated April 16, 1993, Shows believed that the
defendants had violated Shows’s rights under Mississippi law, there
was no need for a post termination hearing, and Shows would avail
himself of another forum. Shows filed suit in federal court
against WCSD, the superintendent and all five school board members
for defamation, conspiracy and violation of his due process rights.
Standard of Review
Summary judgment is appropriate if the record discloses “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). Once the moving party has demonstrated that no
genuine issue of fact exists, the nonmovant must come forward with
specific facts showing there is a genuine issue for trial. Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). In
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reviewing the summary judgment, we apply the same standard of
review as did the district court. Waltman v. Int’l Paper Co., 875
F.2d 468, 474 (5th Cir. 1989); Moore v. Mississippi Valley State
Univ., 871 F.2d 545, 548 (5th Cir. 1989). Mr. Shows has failed to
satisfy his burden.
Due Process
A school board is required to provide notice and hearing
before dismissing a public schoolteacher when the teacher has
tenure or a reasonable expectation of reemployment. Megill v.
Board of Regents of the State of Fla., 541 F.2d 1073 (5th Cir.
1976); Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970). The
Mississippi legislature requires that public school employees be
provided with “notice of the reasons for not offering an employee
a renewal of his contract” and an “opportunity for the employee to
present matters in extenuation or exculpation.” Miss. Code Ann.
§37-9-101 (1972). This protection against arbitrary dismissal
creates an expectation of continued employment and a protectable
property interest. McDonald v. Mims, 577 F.2d 951 (5th Cir. 1978).
Shows’s employment, therefore, is a protectable property interest.
Shows was offered a hearing under section 37-9-59 of the
Mississippi Code also which sets out the procedures for discharging
employees for cause. Under this section, the school board makes
the final decision after the hearing. Shows chose to forego the
hearing because he believed that the board predetermined the
outcome at its earlier meeting. Generally, a person waives his
right to complain of due process violations when he fails to take
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advantage of administrative procedures made available to him.
Rathjen v. Litchfield, 878 F.2d 836 (5th Cir. 1989). One
exception to the general rule is bias or predetermination of the
issues by the decision maker. McCarthy v. Madigan, 503 U.S. 140,
(1992). Shows argues that he falls within the predetermination
aspect of the exception.
Administrative hearing bodies are presumed to discharge their
duties with honesty and integrity. Withrow v. Larkin, 421 U.S. 35,
(1975). To overcome the presumption and prove predetermination,
the complaining party must prove that the decisionmaker has an
irrevocably closed mind prior to the hearing. Federal Trade
Commission v. Cement Institute, 333 U.S. 683,(1948). Exposure to
non-adversary investigative procedures or familiarity with the
facts is insufficient to impugn the fairness of the board members
at a subsequent adversary hearing. Withrow v. Larkin, 421 U.S. at
53-55; Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ.
Ass’n., 426 U.S. 482, (1976).
Shows relies on Cantrell v. Vickers, 495 F. Supp. 195 (N.D.
Miss. 1980). In Cantrell, the removal of a third grade teacher was
considered during executive sessions at several meetings of the
Board of Trustees. After the meetings, the board provided the
teacher with a specific plan for improvement, noncompliance with
which would result in immediate termination. The court found that
the board “decided [the teacher’s] future as a school teacher” at
the time of the final meeting, before the teacher was granted a
hearing. Id. at 200. Since the Board had predetermined the outcome
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of a subsequent hearing, the court held that the teacher had not
waived her right to assert her due process claims. Id. Such is
not the case here.
Shows offers, as evidence of predetermination, his subjective
belief that he was fired and a newspaper article reporting he was
fired as opposed to suspended pending hearing. Shows also points
to testimony by board members although all five board members voted
for dismissal pending hearing. Phillip Cooley stated that based on
information received at the meeting, he determined that Shows had
done something wrong but that Shows was given a hearing to clear
himself. Maria Giles testified that she made a personal
determination at the meeting but that a final decision would not be
made until after the hearing. Leah Parson testified that she did
not know whether Shows had actually committed the acts, believed
the students thought he had committed the acts but knew a final
decision would not be rendered until after a hearing. The
testimony before us of Ulmer Pryor and Donnis Shirley does not
address whether either had predetermined the matter.
Shows’s evidence does not suggest that the board had an
irrevocably closed mind. In contrast to Cantrell, the board did
not reach a decision nor administer a remedy. The evidence
submitted by Shows does not rebut the presumption of honesty and
integrity and does not demonstrate an issue for trial.
AFFIRMED.
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