Cotnoir v. University of Maine Systems

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1113

RUSSELL COTNOIR,

Plaintiff - Appellee,

v.

UNIVERSITY OF MAINE SYSTEMS
AND GEORGE CONNICK, ET AL.,

Defendants - Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

Before

Torruella, Circuit Judge,

Campbell, Senior Circuit Judge,

and Boudin, Circuit Judge.

Paul W. Chaiken, with whom Brett D. Baber and Rudman &

Winchell were on brief for appellants.

Joseph M. Jabar, with whom John P. Jabar and Daviau, Jabar &

Batten were on brief for appellee.

September 13, 1994

TORRUELLA, Circuit Judge. Plaintiff-appellee Russell

Cotnoir, a tenured professor at the University of Maine, Augusta

("UMA"), was accused of academic and administrative improprieties

and was subsequently fired. Cotnoir then filed suit against the

UMA and three university employees, Chancellor Robert Woodbury,

President George Connick, and Provost Richard Randall ("the

individual defendants"), pursuant to 42 U.S.C. 1983, alleging,

among other things, that the individual defendants denied Cotnoir

procedural due process in connection with their decision to

terminate his employment. The individual defendants moved for

summary judgment, requesting that they be granted qualified

immunity. The district court denied their motion and this

interlocutory appeal followed. We find that at this juncture,

the individual defendants are not entitled to qualified immunity

with respect to Cotnoir's procedural due process claim, and

therefore, we affirm.

I. STATEMENT OF THE CASE

A. Facts

When a defendant moves for summary judgment based on

the doctrine of qualified immunity, the court must review the

facts in the light most favorable to the plaintiff. Febus-

Rodr guez v. Betancourt-Lebr n, 14 F.3d 87, 89 (1st Cir. 1994).

The facts appearing from the summary judgment materials are as

follows.

Cotnoir was a tenured professor at the UMA, and was

also the Chairperson of the Business and Governmental Science

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Division ("BAGS"). On October 29, 1991, another professor at the

UMA, Ronald Norton, sent a letter to the dean of students

indicating that a BAGS student had received 56 credits without

having attended classes. Norton's letter further indicated that

this particular student was registered as a Maine resident,

although he was living in Louisiana.

In response to the letter, Richard Randall, the Provost

at the UMA, conducted an investigation. As part of this

investigation, Randall interviewed Cotnoir, several of his

colleagues, and other individuals with knowledge regarding the

incident. On December 13, 1991, Randall completed his report,

and gave it to George Connick, the President of the UMA. This

report contained a summary of Randall's findings regarding this

academic matter and included an explicit recommendation that

Cotnoir be dismissed.

On December 16, 1991, Connick sent a letter to Cotnoir,

which stated:

Provost Richard Randall has completed his
report to me on the investigation of the
academic issues raised by Professor
Ronald Norton in his letter of October
29, 1991.

I wish to offer you the opportunity to
meet with me so that you might further
clarify your role in this series of
events, prior to my determining what
action to take. It is important that you
understand that disciplinary action may
result from my investigation of your
participation in this serious academic
matter.

If you would like to meet with me, please
call Lisa Grundstrom-Whitney, Assistant

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to the President, immediately, so that an
appointment can be arranged before the
endof theday, Wednesday,December 18,1991.

On December 17, 1991, Connick met with Cotnoir. During

this meeting, Connick explained to Cotnoir that Randall had

prepared a report of the investigation. Connick did not show

Cotnoir the report, and Cotnoir apparently did not ask to see the

report. Cotnoir did not make a statement, and Connick then

proceeded to ask Cotnoir twelve questions about the BAGS student,

which Cotnoir answered.

On December 27, 1991, Connick sent Cotnoir a letter

informing him that his employment was terminated effective

December 31, 1991. Cotnoir then filed a grievance regarding the

termination. Connick appointed Sherri Stevens, Executive

Director of Administrative Services, to be his designee, and

impartially review the matter. Although Stevens never held a

hearing, she met with Cotnoir and his faculty representative

three times. On June 5, 1992, Stevens submitted a report to

Connick concluding that the UMA had met its burden of proof that

there was sufficient cause to terminate Cotnoir, and that the

termination decision should not be reversed. Connick accepted

her report. At this time, Stevens was also representing the UMA

in opposing Cotnoir's request for unemployment benefits before

Maine's Department of Labor, on the basis of Cotnoir's alleged

misconduct.

On June 17, 1992, Cotnoir filed a grievance with

Chancellor Woodbury. Woodbury appointed Samuel D'Amico, the

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Associate Vice Chancellor, to review Cotnoir's grievance. On

July 13, 1992, D'Amico notified Cotnoir that his review was

limited to a determination of whether proper procedures had been

followed. D'Amico ultimately concluded that Cotnoir's

termination was conducted in accordance with the grievance

procedures set forth in the UMA's handbook for non-represented

employees. D'Amico notified Cotnoir that he had a right to

appeal to the University of Maine System Board of Trustees.

Cotnoir then waived his right to appeal to the Board of

Trustees, and the UMA agreed to this waiver.

B. Proceedings Below

Following his termination, Cotnoir filed this action,

alleging claims under 42 U.S.C. 1983, as well as pendent state

claims. The claim which underlies this appeal is that Woodbury,

Connick, and Randall, violated Cotnoir's right to procedural due

process in conjunction with their decision to terminate his

employment. The individual defendants moved for summary

judgment. In this motion, they claimed, in part, that they were

entitled to qualified immunity with respect to Cotnoir's

procedural due process claim. Magistrate Judge Beaulieu issued a

recommended decision denying the individual defendants' summary

judgment motion on the issue of qualified immunity. The district

court (Brody, J.), then adopted the Magistrate Judge's

recommended decision. This interlocutory appeal followed.

II. ANALYSIS

A. Jurisdiction

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At the outset, we will discuss the scope of this

appeal. "[A] district court's denial of a claim of qualified

immunity, to the extent that it turns on an issue of law, is an

appealable 'final decision' within the meaning of 28 U.S.C.

1291. . . ." Febus-Rodr guez, 14 F.3d at 90 (quoting Fonte v.

Collins, 898 F.2d 284, 285 (1st Cir. 1990)) (other citations

omitted). On appeal, Cotnoir suggests that in addition to

affirming the district court's denial of qualified immunity

below, we should also decree that he is entitled to judgment as a

matter of law on his 1983 procedural due process claim.

Cotnoir contends that he is entitled to such a judgment because

the record is clear regarding the events which occurred with

respect to his termination. We decline Cotnoir's invitation, and

adhere to our "well-established practice of limiting our

interlocutory review to the issue of qualified immunity," even

when the merits of the case are "inexorably intertwined" with the

qualified immunity issue. Newman v. Massachusetts, 884 F.2d 19,

22 (1st Cir. 1989), cert. denied, 493 U.S. 1078 (1990) (citations

omitted).

B. The Summary Judgment Standard

"Where a qualified immunity defense is advanced by

pretrial motion, 'normal summary judgment standards' control."

Amsden v. Moran, 904 F.2d 748, 752 (1st Cir. 1990), cert. denied,

498 U.S. 1041 (1991) (citations omitted). A motion for summary

judgment must be granted if:

[T]he pleadings, depositions, answers to
interrogatories, and admissions on file,

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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). In this context, we will examine the

record and "draw all reasonable inferences therefrom in the light

most hospitable to the party opposing the motion." Amsden, 904

F.2d at 752 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 255

(1986)) (other citation omitted). Because the individual

defendants' summary judgment motion rested on the legal question

of whether they are entitled to qualified immunity on the basis

of facts which must, by definition, be undisputed, appellate

review of the district court's order is plenary. See Amsden, 904

F.2d at 752. We will therefore delve into the record to

determine whether a genuine issue of material fact exists with

respect to the individual defendants' claim that they are

entitled to qualified immunity. Unwin v. Campbell, 863 F.2d 124,

132 (1st Cir. 1988).1

C. Qualified Immunity

Qualified immunity shields government officials

performing discretionary functions from civil damages "insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

1 The three individual defendants did not attempt to identify
who was responsible for each action; rather, they focused on
their collective liability. At this juncture, we will not
attempt to distinguish among the individual defendants in order
to determine to what extent each may or may not have contributed
to the alleged harm. See Domegan v. Fair, 859 F.2d 1059, 1065

(1st Cir. 1988).

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known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Hoffman

v. Reali, 973 F.2d 980, 985 (1st Cir. 1992); Amsden, 904 F.2d at

751. On a motion for summary judgment, "the
relevant question is whether a reasonable
official could have believed his actions
were lawful in light of clearly
established law and the information the
official possessed at the time of his
allegedly unlawful conduct."

Febus-Rodr guez, 14 F.3d at 91 (quoting McBride v. Taylor, 924

F.2d 386, 389 (1st Cir. 1991)) (other citations omitted). Thus,

the central issue with respect to qualified immunity is not

whether a defendant actually violated a plaintiff's rights.

Rather, the inquiry focuses on the objective reasonableness of a

defendant's actions, in light of whether the plaintiff's rights

were clearly established, and whether the contours of that right

were sufficiently clear such that a reasonable official would

have understood that the actions he took violated that right.

See Amsden, 904 F.2d at 752-53; Collins v. Marina-Mart nez, 894

F.2d 474, 476 (1st Cir. 1990).

D. Procedural Due Process

The Fourteenth Amendment to the United States

Constitution provides that no state shall deprive any person of

life, liberty or property without due process of law. See

generally Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972);

Amsden, 904 F.2d at 752. Cotnoir was a tenured professor at the

UMA. It has long been "clearly established" that a tenured

professor enjoys a property right sufficient to invoke procedural

due process protections. See Perry v. Sindermann, 408 U.S. 593,

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601 (1972); Collins, 894 F.2d at 478; Newman, 884 F.2d at 19

(citations omitted).

We must therefore determine what process was due

Cotnoir, and whether the individual defendants reasonably should

have understood that their actions violated Cotnoir's procedural

due process rights. See Amsden, 904 F.2d at 752; Newman, 884

F.2d at 23. Procedural due process is a "guarantee of fair

procedure." Amsden, 904 F.2d at 753 (quoting Zinermon v. Burch,

494 U.S. 113, 125 (1990)).

The basic purport of the constitutional
requirement is that, before a significant
deprivation of liberty or property takes
place at the state's hands, the affected
individual must be forewarned and
afforded an opportunity to be heard "at a
meaningful time and in a meaningful
manner."

Amsden, 904 F.2d at 753 (quoting Armstrong v. Manzo, 380 U.S.

545, 552 (1965)). Procedural due process guarantees an affected

individual the right to some form of hearing, with notice and an

opportunity to be heard, before he is divested of his protected

interest. See Cleveland Board of Education v. Loudermill, 470

U.S. 532, 542 (1985); Collins, 894 F.2d at 480; Newman, 884 F.2d

at 23l; Brasslett v. Cota, 761 F.2d 827, 836 (1st Cir. 1985).

While a hearing need not be elaborate, a "tenured public employee

is entitled to oral or written notice of the charges against him,

an explanation of the employer's evidence, and an opportunity to

present his side of the story." Loudermill, 470 U.S. at 546

(citations omitted); Brasslett, 761 F.2d at 836.

E. The Process Afforded Cotnoir

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The dictates of Loudermill squarely control the present

case, and compel us to find that based on the facts appearing in

the record, the individual defendants reasonably could not have

believed that their actions satisfied the minimum procedural due

process requirements.2 Cotnoir argues that the individual

defendants are attempting to recast their investigation of the

charges of academic and administrative impropriety which were

alleged against him, into a hearing with respect to these

charges, and their decision to fire him. Cotnoir argues that, in

fact, he was never afforded a hearing where he had a fair

opportunity to present his side of the story. Based on the facts

now appearing in the record, we agree and find that the

individual defendants' after-the-fact recharacterization of their

actions fails. At this juncture, the individual defendants are

not entitled to judgment, because it appears from the record that

they denied Cotnoir: 1) adequate notice of the UMA's proposed

decision to terminate his employment based on alleged academic

and administrative improprieties, and 2) an explanation of the

UMA's evidence against him.

1. Failure to Provide Notice of Proposed Action

The individual defendants contend that they were only

obligated to provide Cotnoir with notice regarding the charges of

academic and administrative improprieties alleged against him,

2 Our references to the record facts are not intended to
determine any factual issue, but merely reflect the facts that
are either undisputed or cannot be resolved against Cotnoir

except by the fact finder in the trial court.

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and that they had no further obligation to notify Cotnoir that

they were considering terminating his employment. They claim

that because the record shows that they notified Cotnoir of the

charges against him, they did not violate Cotnoir's procedural

due process rights, and they are entitled to qualified immunity.

We disagree. When the Supreme Court decided Loudermill, it

clearly contemplated that when an individual is faced with the

potential loss of a protected interest, officials must provide

the individual with notice of the charges alleged against him and

any proposed action the officials intend to take, based on those

charges. See Loudermill, 470 U.S. 543-46.

[The pretermination hearing] should be an
initial check against mistaken decisions
- essentially, a determination of whether
there are reasonable grounds to believe
that the charges against the employee are
true and support the proposed

action. . . .

The essential requirements of due process
. . . are notice and an opportunity to
respond. The opportunity to present
reasons, either in person or in writing,
why proposed action should not be taken
is a fundamental due process requirement.

Id. at 545-46 (emphasis added) (internal citations omitted).

Providing notice of both the charges against an employee, and the

proposed action based on those charges is necessary, because

"[e]ven where the facts are clear, the appropriateness or

necessity of the discharge may not be; in such cases, the only

meaningful opportunity to invoke the discretion of the

decisionmaker is likely to be before the termination takes

effect." Id. at 543 (citations omitted).

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Based on the facts now appearing in the record, it

appears that the individual defendants failed to provide Cotnoir

with any notice that they were considering terminating his

employment, prior to making the decision to do so. The record

indicates that Cotnoir initially met with Randall with respect to

Randall's investigation into the academic incident, and Cotnoir

generally explained what actions he had taken relative to this

incident, and why he had taken those actions. After completing

his investigation, Randall prepared a report, and submitted it to

Connick. In that report, Randall set forth his findings based on

his investigation, and recommended that Cotnoir be fired.

Connick then invited Cotnoir to meet with him so that Cotnoir

could "clarify [his] role in this series of events," and Connick

alerted Cotnoir that unspecified "disciplinary action" could

result. Cotnoir met with Connick, at which time Connick asked

Cotnoir to explain his role, and Connick asked him a series of

questions. Connick did not show Cotnoir the report, or otherwise

alert Cotnoir to the fact that he was considering terminating his

employment. Thus, despite the fact that Connick knew that

Randall had recommended termination, and that this action was

clearly being contemplated, the individual defendants never

provided Cotnoir with any notice of this proposed action. The

decision of whether or not to terminate Cotnoir's employment was

the very decision which would deprive Cotnoir of his property

interest, and the individual defendants reasonably should have

known that they were required to provide Cotnoir with notice of

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their proposed action and an opportunity to contest their

contemplated action, so that Cotnoir's participation in the

process could be meaningful. See generally Collins, 894 F.2d at

481 (finding that where professor had no reason to believe his

tenure was being questioned, and notice of hearing was abrupt and

uninformative, officials did not afford professor a real chance

to present his side of the story and this violated his procedural

due process rights); cf. Newman v. Burgin, 930 F.2d 955, 960 (1st

Cir. 1991) (finding that tenured professor was not deprived of

procedural due process when school officials provided professor

with notice of proposed action, and a trial-type hearing before a

neutral decisionmaker); Brasslett, 761 F.2d at 836 (finding that

former town fire chief was not deprived of procedural due process

when he was notified of the possibility of discharge because of

alleged improprieties committed while fire chief, and was

afforded ample opportunity to defend his actions and rebut any

erroneous allegations).

2. Failure to Provide an Explanation of Employer's
Evidence

When a public employee's tenured status is threatened,

he is entitled to an explanation of the substance of the

employer's evidence against him so that he can present his side

of the story. Loudermill, 470 U.S. at 546. Based on the present

record, it appears that the individual defendants failed to

provide Cotnoir with an explanation of their evidence against him

regarding the academic incident in question. During the course

of his investigation, Randall met with Cotnoir, as well as a

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number of Cotnoir's colleagues and people who were otherwise

involved, to determine precisely what had occurred. Randall

summarized his investigation in the report which he submitted to

Connick. Connick, however, never showed the report to Cotnoir;

nor did anyone else. No one ever informed Cotnoir of the

substance of Randall's interviews with his colleagues. Nor did

anyone otherwise tell Cotnoir what in essence the evidence

against him was. Therefore, Cotnoir had no way to know what the

extent of the evidence was, what his alleged role in the whole

scheme was, and the seriousness with which the UMA viewed the

incident. Cotnoir therefore did not have an opportunity to

respond to, or defend himself against the evidence presented. A

reasonable official should have known that this failure to

explain the evidence against an individual violated one of the

basic procedural due process requirements.

F. The Post-Termination Proceedings

The individual defendants argue that Cotnoir's

procedural due process rights were not violated because post-

deprivation procedures were available to ensure that Cotnoir's

termination was appropriate, and that he, in fact, received the

benefit of these procedural protections. We disagree.

Where an employee is fired in violation of his due

process rights, the availability of post-termination grievance

procedures will not ordinarily cure the violation. Kercad -

Mel ndez v. Aponte-Roque, 829 F.2d 255, 263 (1st Cir. 1987)

(citing Schultz v. Baumgart, 738 F.2d 231, 237 (7th Cir. 1984)),

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cert. denied, 486 U.S. 1044 (1988). Thus, even where a

discharged employee receives a post-termination hearing to review

adverse personnel action, the pretermination hearing still needs

to be extensive enough to guard against mistaken decisions, and

accordingly, the employee is entitled to notice, an explanation

of the employer's evidence, and an opportunity to present his

side of the story. See Loudermill, 470 U.S. at 546; Brasslett,

761 F.2d at 836. If an employee is fired without these pre-

termination protections, normally the constitutional deprivation

is then complete. Kercad -Mel ndez, 829 F.2d at 263. Thus, the

post-termination grievance procedures which the individual

defendants provided to Cotnoir could not compensate for a lack of

pre-termination process afforded Cotnoir.

We do not believe on the facts now appearing in the

record, that it was reasonable for the individual defendants to

have believed that their actions satisfied the minimum due

process requirements. For the foregoing reasons, we affirm the

decision of the district court.

Affirmed.

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