Kirkland v. St. Vrain Valley School District No. Re-1J

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
September 26, 2006
UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

K EN N ETH K IR KLA N D ,

Plaintiff - Counterclaim-
Defendant - Appellee -
Cross-Appellant,
v.

ST. V RAIN V A LLEY SC HO O L
DISTRICT NO. RE-1J, a Colorado
Public School District,

Defendant - Counter-
Nos. 05-1020, 05-1040
Claimant - Cross-
Appellee,

and

RICK SAM SON, TAM M Y
PILK INGTO N, SANDI SEA RLES,
K A TH Y H A LL, M IK E
RADEM ACHER, LARRY SILVER,
B REN D A EV ER ETT, R AN D Y ZILA,

Defendants - Counter-Claimants
- Appellants - Cross-Appellees.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 03-M K -1145 (M JW ))

Patrick B. M ooney (Erica L. W hite, with him on the briefs), Semple, M iller,
M ooney & Farrington, P.C., Denver, Colorado, for Defendants -
Counter-Claimants - A ppellants - Cross-A ppellees.
Roger T. Castle, Roger T. Castle, P.C., Denver, Colorado, for Plaintiff -
Counterclaim-Defendant - Appellee - Cross-Appellant.

Before O’BRIEN, EBEL, and TYM KOVICH, Circuit Judges.

EBEL, Circuit Judge.

These interlocutory cross-appeals stem from a financial crisis occurring in

the St. Vrain Valley School District No. RE-1J (“the District”) in 2002. Due to

several accounting errors made by personnel in the District’s finance department,

the District had unknowingly been operating for several years with a sizable and

increasing deficit. W hen the District discovered this growing deficit, in the fall

of 2002, it did not have enough money to meet its next payroll and could only

continue operating after receiving substantial assistance from the State of

Colorado.

Plaintiff-Appellant Kenneth Kirkland was the assistant superintendent of

auxiliary services overseeing the District’s finance department during this time

period. In this litigation, he asserts that, in the wake of the District’s discovering

this deficit, the D istrict, as w ell as its superintendent and individual School Board

members (the “individual Defendants”), deprived Kirkland of property and liberty

interests without due process when the District refused to abide by a resignation

agreement Kirkland made with the District’s superintendent, deciding instead to

2
suspend Kirkland without pay and eventually to terminate him.

In appeal No. 05-1020, the individual Defendants appeal the district court’s

decision denying them qualified immunity from Kirkland’s claims. Because

Kirkland failed to allege any constitutional violation, we conclude the individual

Defendants are entitled to qualified immunity. W e, therefore, REVERSE the

district court’s decision denying these Defendants immunity.

In appeal No. 05-1040, Kirkland appeals a discovery ruling. W e decline to

address the merits of this appeal, however, because we lack jurisdiction to do so.

W e, therefore, DISM ISS the cross-appeal.

I. B ACKGR OU N D

In 1999, the District hired Kirkland to be the assistant superintendent in

charge of the District’s auxiliary services. In that position, Kirkland supervised

ten District departments, including the financial services department. Kirkland

was employed pursuant to a series of one-year contracts, the last of which ran

from July 1, 2002, through June 30, 2003.

In November 2002, Kirkland informed Superintendent Randy Zila that one

of Kirkland’s employees in the finance department had made several accounting

errors that had resulted in an unexpected and dramatic shortfall in the District’s

budget. Due to these accounting errors, the District had been operating under the

mistaken belief that it had a slight budget surplus; in fact, the District had

between a $9 and $13 million deficit, and would not be able to meet its next

3
payroll. The District could only continue operating if it received “substantial

loans from the State of Colorado and [implemented] significant spending cuts.”

After this budget shortfall came to light, Superintendent Randy Zila and

Assistant Superintendent Tom Garcia met with Kirkland, on November 13, 2002,

and informed Kirkland that the School Board (“the Board”) had lost confidence in

his ability to provide the Board with accurate budget information. They requested

that Kirkland resign. By the end of this meeting, Kirkland had agreed to resign in

return for the District’s continuing to pay him his salary and benefits through the

remainder of his one-year employment contract. Garcia “accepted” Kirkland’s

handwritten resignation. 1 Several days later, however, at the November 16 school

board meeting, the Board rejected Kirkland’s resignation and the resignation

agreement. The Board instead placed Kirkland on unpaid administrative leave.

Thereafter, in N ovember 2002, Board member Rick Samson publicly

commented that Kirkland had lied to the Board and had falsified documents. A

local newspaper published those remarks.

In April 2003, Kirkland and the District reached a termination agreement.

That written agreement, dated April 15, 2003, provided that Kirkland would “not

request a hearing by the Board of Education regarding the termination,” and in

1
Kirkland’s handwritten resignation stated “[e]ffective today, I hereby
resign my position as A ssistant Superintendent.” U nderneath, in another’s
handwriting (apparently Garcia’s), is written “Accepted.” Underneath that is the
notation “Pay through the contract June 30, 03 Insurance through July 31, 03,”
followed by Garcia’s signature and the date.

4
return, the Board would terminate K irkland’s employment without public

comment. The Board did so on April 23, 2003.

Kirkland filed suit against the D istrict, seven individual Board members,

and the District’s superintendent. 2 In that action, Kirkland asserted claims under

42 U.S.C. § 1983 3 alleging that 1) the District and the individual Defendants

deprived him of property without due process by a) failing to abide by the

November resignation agreement, b) suspending him without pay, and

c) terminating him; and 2) the District and the individual Defendants deprived

Kirkland of a liberty interest in his future employability without due process,

based upon Board member Samson’s public comments accusing Kirkland of

dishonesty. 4 The individual Defendants moved for summary judgment, asserting

2
Although he did not specifically state so in his complaint, we assume that
Kirkland is suing the individual Defendants in their individual, rather than their
official, capacities. See M oore v. City of W ynnewood, 57 F.3d 924, 929 n.4
(10th Cir. 1995) (noting qualified immunity is only available in suits against
public officials in their individual, rather than their official, capacity); see also
Beedle v. W ilson, 422 F.3d 1059, 1069 (10th Cir. 2005).
3
Section 1983 provides, in pertinent part, that

[e]very person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . ., subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding for
redress . . . .
4
Kirkland also alleged that the District breached its employment contract
(continued...)

5
they were entitled to qualified immunity. The district court, however, denied

these individual Defendants immunity.

II. APPEAL NO . 05-1020

In case No. 05-1020, the individual Defendants appeal the district court’s

decision denying them qualified immunity. Because a government official’s

qualified immunity provides, not simply a defense to liability, but a right not to

stand trial in the first place, a district court’s decision denying a government

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

immediately appealable final collateral order. See M itchell v. Forsyth, 472 U.S.

511, 524-27, 530 (1985). Thus, this court “ha[s] jurisdiction to review purely

legal questions that arise from the denial of qualified immunity.” Perez v.

Ellington, 421 F.3d 1128, 1131 (10th Cir. 2005). In doing so, we “review de

novo a district court’s denial of a summary judgment motion raising qualified

immunity questions.” Id. In conducting this review, this court considers the

evidence in the light most favorable to the non-moving party who, in this case, is

Kirkland. See M imics, Inc. v. Vill. of A ngel Fire, 394 F.3d 836, 841 (10th Cir.

2005).

4
(...continued)
with Kirkland by suspending him without pay, and breached the November
resignation agreement by failing to abide by that agreement. The District, in turn,
asserted two counterclaims alleging Kirkland had breached his employment and
termination agreements w ith the District. The district court, however, declined to
exercise supplemental jurisdiction over these four state-law claims, see 28 U.S.C.
§ 1367(c), and instead dismissed them without prejudice.

6
 Because of the underlying purposes of qualified immunity, we review
summary judgment orders deciding qualified immunity decisions
differently from other summary judgment decisions. After a defendant
asserts a qualified immunity defense, the burden shifts to the plaintiff,
and the plaintiff must first establish that the defendant’s actions
violated a constitutional or statutory right. If a favorable view of the
facts alleged show[s] the violation of a constitutional right, the next,
sequential step is to ask whether the right was clearly established at the
time of the defendant’s unlaw ful conduct. When the plaintiff fails to
satisfy either part of this two-part inquiry, the court must grant the
defendant qualified immunity.

Smith v. Cochran, 339 F.3d 1205, 1211 (10th Cir. 2003) (citations, quotations

omitted). 5

Although at times it may be tempting for a court to address the second issue

first, the Supreme Court directs that a court consider these questions in order.

See Saucier v. Katz, 533 U.S. 194, 201 (2001).

A court required to rule upon the qualified immunity issue must
consider, then, this threshold question: Taken in the light most
favorable to the party asserting the injury, do the facts alleged show the
[government official]’s conduct violated a constitutional right? This
must be the initial inquiry. In the course of determining whether a
constitutional right was violated on the premises alleged, a court might
find it necessary to set forth principles which w ill become the basis for
a holding that a right is clearly established. This is the process for the
law’s elaboration from case to case, and it is one reason for our

5
If “the plaintiff successfully establishes the violation of a clearly
established right, the burden shifts to the defendant, who must prove that there are
no genuine issues of material fact and that he or she is entitled to judgment as a
matter of law .” Cochran, 339 F.3d at 1211 (quotation, alteration omitted). W hile
this final element of the summary judgment analysis “must be conducted by the
district court” when it rules on a summary judgment motion, this part of the
analysis is not relevant to the court of appeals when, as here, we are reviewing an
interlocutory appeal of the district court’s decision denying qualified immunity.
Id. at 1211 n.3.

7
 insisting upon turning to the existence or nonexistence of a
constitutional right as the first inquiry. The law might be deprived of
this explanation were a court simply to skip ahead to the question
whether the law clearly established that the [government official]’s
conduct was unlawful in the circumstances of the case.

Id. (citation omitted).

In this case, all of Kirkland’s § 1983 claims allege that the Defendants, in

some way or another, deprived him of procedural due process.

The Fourteenth Amendment protects citizens from the deprivation of
life, liberty, or property, w ithout due process of law. Procedural due
process ensures that a state will not deprive a person of life, liberty or
property unless fair procedures are used in making that decision. To
determine w hether a plaintiff was denied procedural due process, we
engage in a two-step inquiry: (1) Did the individual possess a protected
interest to which due process protection was applicable? (2) W as the
individual afforded an appropriate level of process?

Brown v. N.M . State Pers. Office, 399 F.3d 1248, 1254 (10th Cir. 2005)

(citations, quotations, alteration omitted).

Before a person is deprived of a protected interest, he must be afforded
opportunity for some kind of a hearing, except for extraordinary
situations where some valid government interest is at stake that justifies
postponing the hearing until after the event. . . . [I]t is fundamental that
except in emergency situations . . . due process requires that when a
State seeks to terminate a protected interest, it must afford notice and
opportunity for hearing appropriate to the nature of the case before the
termination becomes effective.

Bd. of Regents of State Colls. v. Roth, 408 U .S. 564, 570 n.7 (1972) (citations,

quotations, alterations omitted). “The formality and procedural requisites for the

hearing can vary, depending upon the importance of the interests involved and the

nature of the subsequent proceedings.” Id. at 570 n.8 (quotation omitted).

8
 A. W hether the individual Defendants are entitled to qualified
immunity on K irkland’s claim that Defendants deprived him of a
property interest w ithout due process w hen the D istrict failed to
abide by the November resignation agreement.

On November 13, 2002, Superintendent Randy Zila and Assistant

Superintendent Tom Garcia met with Kirkland, informed him that the Board had

lost confidence in Kirkland’s ability to provide the Board with accurate budget

information, and requested Kirkland’s resignation. Kirkland agreed to resign in

exchange for the District’s continuing to pay him his salary and benefits through

the duration of his one-year employment contract, w hich ended June 30, 2003.

The Board, however, rejected Kirkland’s resignation and the resignation

agreement. Kirkland alleges that by rejecting this resignation agreement, the

individual Defendants deprived him of a property interest in that agreement

without due process. W e conclude that Kirkland did not have a protected

property interest in the resignation agreement.

“Property interests are not created by the Constitution, but rather by

independent sources such as state law.” Brown, 399 F.3d at 1254 (citing

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985)); see also Roth,

408 U.S. at 577. “Thus, constitutionally protected property interests are created

and defined by statute, ordinance, contract, implied contract and rules and

understandings developed by state officials.” Hulen v. Yates, 322 F.3d 1229,

1240 (10th Cir. 2003) (per curiam) (citing, e.g., Roth and Loudermill).

9
 Kirkland asserts he had a property interest in the resignation agreement

because it was an enforceable contract under Colorado law . But pursuant to

District policy, the Board first had to approve any expenditure over $50,000. And

paying Kirkland the remainder of his salary and benefits through June 30, 2003,

would have required such an expenditure. Therefore, the resignation agreement

did not bind the D istrict unless and until the Board approved it. And the B oard

never approved it. Because the resignation agreement thus never became an

enforceable contract, Kirkland never gained a property interest in that agreement

such that it would be subject to due process protections.

Kirkland protests that, when he met with Superintendent Zila and Assistant

Superintendent Garcia, Kirkland believed these two administrators had the

authority to enter into a resignation agreement with Kirkland that would be

enforceable against the District. But that argument is unavailing.

Under Colorado law, a government entity’s power to enter into contractual

obligations is circumscribed by statute and ordinances. See Colo. Springs Fire

Fighters Ass’n v. City of Colo. Springs, 784 P.2d 766, 773-74 (Colo. 1989); see

also Shaw v. Sargent Sch. Dist. No. RE-33-J ex rel. Bd. of Educ., 21 P.3d 446,

449-50 (C olo. Ct. App. 2001) (applying this principle to a public school district).

These restrictions are incorporated into any contract the government entity makes.

See Keeling v. City of G rand Junction, 689 P.2d 679, 680 (Colo. Ct. App. 1984);

see also Colo. Inv. Servs., Inc. v. City of W estminster, 636 P.2d 1316, 1318

10
(Colo. Ct. App. 1981). Anyone that contracts with a government entity is charged

with constructively knowing those restrictions and, therefore, cannot claim any

justifiable reliance on representations made beyond the municipality’s contractual

authority. Colo. Springs Fire Fighters Ass’n, 784 P.2d at 774 (holding that

“[p]ersons dealing with the City are on constructive notice of the scope of

authority possessed by the municipal officials with whom they are dealing”;

further holding that “[t]his constructive notice includes the knowledge that the

city council acted pursuant to the authority granted by the city charter and subject

to the limitations provided therein”); Keeling, 689 P.2d at 680 (holding that

“[o]ne who contracts w ith a municipality is charged with knowledge of its

limitations and restrictions in making contracts”); Colo. Inv. Servs., Inc., 636

P.2d at 1318 (same).

Superintendent Zila and Assistant Superintendent Garcia could not, as a

matter of law, bind the Board to the resignation agreement because the

resignation agreement required the District to expend more than $50,000 and the

Board’s written policies expressly required the Board to approve any such

expenditure. 6 See Seeley v. Bd. of County Comm’rs, 791 P.2d 696, 700 (Colo.

6
Kirkland briefly argues that, because the Board had already approved the
expenditure of funds for his salary and benefits when the Board earlier approved
his one-year employment contract in June 2002, the Board was not required again
to approve the expenditure of these same funds through the later resignation
agreement. However, the resignation agreement was a very different agreement
than the earlier employment agreement.
(continued...)

11
1990) (holding government employee cannot enforce terms of contract that his

government supervisor was not authorized to create); Cherry Creek Aviation, Inc.

v. City of Steamboat Springs, 958 P.2d 515, 519 (Colo. Ct. App. 1998)

(“Contracts executed by municipal corporations are void when there is a failure to

comply with the mandatory provisions of the applicable statutes or charters.”).

And, regardless of Kirkland’s subjective belief that Zila and Garcia had authority

to bind the Board to the resignation agreement, Colorado law deems K irkland to

know the limitations on the District’s authority to contract. See Colo. Springs

Fire Fighters Ass’n, 784 P.2d at 774; Keeling, 689 P.2d at 680.

For these reasons, Kirkland did not have a property interest in the

November 13 resignation agreement. Therefore, he cannot allege a constitutional

deprivation of property without due process. The individual Defendants are

entitled to qualified immunity on this claim.

B. W hether the individual Defendants are entitled to qualified

6
(...continued)
The evidence supports the District’s assertion that District policy required
the Board to approve the resignation agreement by the very fact that Zila
presented the agreement to the Board seeking its approval. Further, there is no
suggestion that the District did not require Board approval in other, similar cases.
Kirkland himself testified in his deposition that “[e]very time there was a
resignation, the board reported on it and acted on it,” but that “in all the time that
I worked at St. Vrain Valley School District, I never once saw any time when the
board did not support the terms of the resignation that Tom Garcia negotiated. It
never occurred to me that wouldn’t be the case with mine.” This testimony, then,
further confirms the District’s assertion that its policy did require the Board to
approve the resignation agreement with Kirkland. See W idder v. Durango Sch.
Dist. No. 9-R, 85 P.3d 518, 528 n.13 (Colo. 2004).

12
 immunity on K irkland’s claim that the Defendants deprived him
of a property interest w ithout due process w hen the Board
suspended him w ithout pay.

Kirkland alleges that the individual Defendants deprived him of procedural

due process when, on November 16, 2002, they suspended him without pay.

Defendants concede that Kirkland possessed a property interest in his one-year

employment contract, running from July 1, 2002 through June 30, 2003. For

purposes of this appeal, we assume, without deciding, that a government

employee’s suspension without pay amounts to a deprivation triggering some

degree of due process protections. Similarly, in Gilbert v. Homar, the Supreme

Court assumed, without deciding, that a government entity’s suspension, without

pay, of a public employee, who has a protected property interest in his continued

employment, amounts to a property deprivation sufficient to implicate due

process protections. See 520 U.S. 924, 929 (1997) (noting “we have not had

occasion to decide whether the protections of the Due Process Clause extend to

discipline of tenured public employees short of termination”).

The question presented, then, is what process Kirkland was due. See

Brown, 399 F.3d at 1255. W hile “state law determines w hether a person has a

property right,” “it is purely a matter of federal constitutional law whether the

procedure afforded was adequate.” Hulen, 322 F.3d at 1247. Kirkland asserts

that the District should have afforded him both pre- and post-suspension due

process.

13
 1. W hether K irkland w as entitled to procedural due process
before the District suspended him w ithout pay.

“[T]he root requirement of the Due Process Clause [is] that an individual be

given an opportunity for a hearing before he is deprived of any significant

property interest.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542

(1985) (quotation omitted). Nonetheless, “[t]here are . . . some situations in

which a postdeprivation hearing will satisfy due process requirements.” Id. at

542 n.7. “It is by now well established that due process, unlike some legal rules,

is not a technical conception with a fixed content unrelated to time, place and

circumstances.” Gilbert, 520 U.S. at 930 (quotation omitted). Rather, it “is

flexible and calls for such procedural protections as the particular situation

demands.” Id. (quotation omitted).

In addressing what process is due, the Court in G ilbert applied a three-part

balancing test:

To determine what process is constitutionally due, we have generally
balanced three distinct factors:

“First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the G overnment’s
interest.”

Gilbert, 520 U.S. at 931-32 (quoting M athews v. Eldridge, 424 U.S. 319, 335

(1976)).

a. K irkland’s private interest

14
 In Gilbert, the Court considered a state university’s decision to suspend one

of its police officers without pay, following the officer’s arrest on felony drug

charges. See id. at 926-27. In considering the employee’s interest in that case,

the Court recognized an employee’s interest in continuing to be paid. See id. at

932 (recognizing “the severity of depriving someone of the means of his

livelihood”). Nevertheless, the Court further indicated that

in determining what process is due, account must be taken of the length
and finality of the deprivation. [D istinguishing] the employee in
Loudermill, who faced termination, [from the employee in Gilbert, who]
faced only a temporary suspension without pay[, the Court noted that]
[s]o long as the suspended employee receives a sufficiently prompt
postsuspension hearing, the lost income is relatively insubstantial
(compared with termination), and fringe benefits such as health and life
insurance are often not affected at all.

Id.

In this case, Kirkland had the right to pursue a post-suspension grievance

immediately following his suspension. And this grievance procedure provided for

expedited review . 7 So, although Kirkland has a private interest that will be

7
District policy specifically provided that an “administrative employee”
such as Kirkland could file a grievance, defined as “a complaint based upon a
wrong believed by an administrative employee to have been suffered by him
through an act or condition which is contrary to established Board policy or
Board and/or administrative practice governing or affecting employees,” unless
the challenged action falls within one of four listed exceptions. Kirkland does not
assert that the Board’s suspending him without pay falls into any of those four
exceptions.

Pursuant to this policy, the “grievant or his representative” must present the
grievance in writing to his immediate superior, with copies to the superintendent
(continued...)

15
affected by a suspension, that effect is attenuated by the relatively prompt

post-suspension hearing that is provided.

b. Risk of erroneous deprivation of property interest

Next, Gilbert directs that we consider the risk of an erroneous deprivation

when the District suspended Kirkland without prior notice and an opportunity to

respond, as well as the likely value of any additional post-suspension procedures

available to him. See Gilbert, 520 U.S. at 933; see also M ustafa v. Clark County

Sch. Dist., 157 F.3d 1169, 1177 (9th Cir. 1998) (noting that, what the Supreme

Court in Gilbert emphasized as “important is that the employer’s decision to

suspend the employee not be ‘baseless or unwarranted’”) (quoting Gilbert, 520

U.S. at 934). In Gilbert, because the university police officer had been suspended

7
(...continued)
and the president of the St. Vrain V alley Association of School Administrators
(“SVVASA ”), “not later than 15 calendar days following its occurrence or the
time when [the grievant] should have known about it.” “The number of days
allotted at each step of the grievance procedure is to be considered as a maximum
time limit. Every attempt should be made to resolve grievances as quickly as
possible.” W here, as here, the “grievance result[s] from action taken by the
superintendent or the Board,” the grievant “m ay request a hearing of his
grievance by the superintendent.” “The grievant and the superintendent will meet
in an attempt to resolve the grievance not later than five contract days following
the date on which the hearing was requested,” and “[t]he superintendent will
communicate his decision in writing to the grievant,” as well as the SVVASA
President, “not later than 10 contract days following the hearing.” Finally, within
“five contract days” after the superintendent’s decision, the grievant can request a
hearing before the Board. The Board will meet with the grievant, “not later than
10 contract days following the date on which the hearing was requested,” in an
attempt to resolve the grievance. And “[t]he Board will comm unicate its decision
in writing to the grievant,” with a copy to the SVVASA president, “not later than
15 contract days following the hearing.”

16
without pay only after being charged with a criminal felony offense, there had

been an independent criminal investigation resulting in a determination that

charges were warranted. See 520 U.S. at 926-28, 933-34. There was no such

independent prosecutorial determination in this case. Nevertheless, before

suspending Kirkland, the D istrict did have two employees who worked for a

nearby school district, Sandi Rotella 8 and Donald Smith, review the D istrict’s

budget problems. Rotella and Smith reported to the School Board that Kirkland’s

finance department had made significant and easily discoverable accounting

errors that resulted in the unforeseen budget shortfall. Rotella and Smith gave

this report to the Board prior to the Board’s decision to place Kirkland on unpaid

administrative leave. Rotella’s and Smith’s investigation reduced the likelihood

that the District was erroneously suspending Kirkland without pay; that is, it

reduced the likelihood that the District’s decision to suspend Kirkland without

pay was “baseless and unwarranted,” M ustafa, 157 F.3d at 1177. Furthermore, as

previously mentioned, Kirkland had available to him a post-suspension grievance

procedure through which he could fairly promptly challenge the suspension if it

was predicated on factual inaccuracies.

c. District’s interest

8
Kirkland challenges the District’s characterization of Rotella as an
independent party because she had previously worked with Zila and analyzed the
District’s budget situation at Zila’s request. There is nothing in the record,
however, to suggest that her review was anything other than independent.

17
 Finally, we consider the District’s interest. See Gilbert, 520 U.S. at

931-32. There are times w here a government entity “must act quickly, or where it

would be impractical to provide predeprivation process.” Id. at 930. For

example, a government employer “has a significant interest in immediately

suspending, when felony charges are filed against them, employees who occupy

positions of great public trust and high public visibility.” Id. at 932. Kirkland

occupies such a position. Cf. M ustafa, 157 F.3d at 1177 (recognizing that “a

public school teacher . . . occupies a position of great public trust and high public

visibility”) (quotation omitted). Kirkland was the administrator in charge of the

District’s finance department. Errors made in that department had resulted in an

unexpected multi-million dollar deficit that was, among other things, going to

prevent the District from meeting its next payroll. The District, then, certainly

had a significant interest and an immediate need in having someone besides

Kirkland analyze the situation and provide the Board with accurate information

on the financial condition of the District. The District’s interest w eighs heavily

in favor of its immediately suspending Kirkland without pay. 9

9
Kirkland nevertheless asserts that the District could have easily paid him
during the suspension. But the Supreme Court, in Gilbert, rejected a similar
argument:

Respondent contends that [the Government employer’s] interest in
maintaining public confidence could have been accommodated by
suspending him with pay until he had a hearing. W e think, however,
that the governm ent does not have to give an employee charged with a
(continued...)

18
 d. Conclusion

After weighing these factors, we conclude Kirkland was not

constitutionally entitled to notice and an opportunity to respond before the

District suspended him without pay. In particular, the District’s strong interest in

suspending Kirkland, under circumstances requiring quick action to address the

budget shortfall, outweigh Kirkland’s temporary loss of pay. This is particularly

true in light of the post-suspension grievance procedure that Kirkland could have

promptly invoked upon his suspension without pay. In light of our conclusion

that Kirkland was not entitled to pre-suspension due process, he has failed to

allege a constitutional violation resulting from the District suspending him

without pay before providing notice and an opportunity for K irkland to respond.

Therefore, the individual Defendants are entitled to qualified immunity on this

claim as w ell. 10

9
(...continued)
felony a paid leave at taxpayer expense. If his services to the
government are no longer useful once the felony charge has been filed,
the Constitution does not require the government to bear the added
expense of hiring a replacement while still paying him.

520 U.S. at 932. The same reasoning applies in this case.
10
Even if Kirkland were entitled to a pre-suspension hearing, we would
nevertheless then have to conclude that such a right was not clearly established at
the time the District suspended Kirkland with pay. The Supreme Court, in
Gilbert, only assumed, but did not decide, that suspending a tenured public
employee w ithout pay was a sufficient deprivation to implicate due process
protections. See 520 U.S. at 929. So that proposition was not clearly established
(continued...)

19
 2. W hether K irkland w as entitled to procedural due process
after the District suspended him w ithout pay.

Kirkland next alleges that Defendants failed to provide him with adequate

post-suspension due process. See generally Gilbert, 520 U.S. at 935 (noting that

whether the government employee “was provided an adequately prompt

post-suspension hearing” is a separate question from whether he was entitled to

pre-suspension due process); O’Connor v. Pierson, 426 F.3d 187, 197 (2d Cir.

2005) (noting that, “[w]hile the ultimate conclusion about procedural

adequacy . . . turns on the full set of pre- and post-deprivation procedures

available, courts often analyze pre- and post-deprivation procedures separately”).

Although Kirkland could have immediately filed a grievance challenging his

suspension, he chose not to do so. In light of that, he cannot now allege that the

individual Defendants deprived him of post-suspension due process. 11 See

10
(...continued)
by Gilbert. Cf. Strouss v. M ich. Dep’t of Corrs., 250 F.3d 336, 345 (6th Cir.
2001) (relying on Court’s assertion in Gilbert that it was not deciding whether
suspension without pay implicated property interest protected by due process to
conclude that such a right was not clearly established prior to Gilbert). And
Kirkland fails to assert any Tenth Circuit case law that clearly established that a
suspension without pay is a sufficient deprivation of a property interest in tenured
employment to trigger due process protections.
11
Kirkland argues that a letter he sent to Zila on November 20, 2002, was in
effect a grievance. There is nothing in the record, however, to support Kirkland’s
characterization of that letter as a grievance. The Board decided to suspend
Kirkland without pay on November 16, 2002. Assistant Superintendent Tom
Garcia verbally notified Kirkland of the suspension on that day. Superintendent
Zila then sent Kirkland a letter, dated November 18, 2002, in w hich Zila
(continued...)

20
Sandoval v. City of Boulder, 388 F.3d 1312, 1328-29 (10th Cir. 2004)

(recognizing government employee can waive right to procedural due process);

see also Luellen v. City of E. Chicago, 350 F.3d 604, 616 (7th Cir. 2003) (holding

that “because [the employee’s] deprivation was relatively small and the C ity’s

interest relatively strong, and because [the employee] was provided with the

opportunity for additional procedures to vindicate his rights but did not avail

himself of those opportunities, we believe that the requirements of due process

were satisfied.”); cf. M ontgomery v. City of Ardmore, 365 F.3d 926, 938 (10th

Cir. 2004) (concluding City provided adequate post-termination procedures

through collective bargaining agreement’s grievance procedures, but employee

chose not to pursue those). See generally Boddie v. Connecticut, 401 U.S. 371,

378-79 (1971) (recognizing hearing required by due process is subject to waiver).

11
(...continued)
reiterated that the Board had suspended Kirkland without pay. Additionally, Zila
informed Kirkland that Zila intended to recommend that the Board fire Kirkland.
Zila further informed Kirkland that he could request “a more detailed statement of
[Zila’s] reasons for” recommending that the Board fire Kirkland. It was in
response to this letter that Kirkland sent his own letter dated November 20, 2002,
requesting the more detailed statement of reasons why Zila w ould seek Kirkland’s
termination. Kirkland did not specifically indicate that this letter was a
grievance. Nor is there any indication in the record that Kirkland sent a copy of
this letter to the president of the St. Vrain Valley Association of School
Administrators, as the grievance policy required. M oreover, although the
grievance procedure provided for expedited review , Kirkland never sought to
assert those time constraints. For these reasons, we reject as a matter of law
Kirkland’s characterization of this letter as a grievance. Kirkland has not asserted
any evidence that would create a genuinely disputed factual issue as to whether
Kirkland’s letter could be considered a grievance filed pursuant to the D istrict’s
available grievance procedure.

21
 C. W hether the individual Defendants are entitled to qualified
immunity from K irkland’s claim alleging D efendants deprived
him of procedural due process before term inating him.

Kirkland alleges that Defendants deprived him of a property interest in his

one-year term of employment by firing him, without first providing him with

adequate notice and an opportunity to be heard. Defendants concede that

Kirkland has a property interest created by his one-year employment contract with

the District. Nevertheless, when Kirkland entered into the termination agreement

with the District, in April 2003, he waived any right to a pre-termination hearing.

See Sandoval, 388 F.3d at 1328-29; see also M ontgomery, 365 F.3d at 938. That

written agreement, dated April 15, 2003, specifically provided that Kirkland

would “not request a hearing by the Board of Education regarding the

termination,” and in return, the Board would terminate Kirkland’s employment

without public comment. And Kirkland testified in his deposition accordingly:

“Did you understand by signing this document, you would not have a hearing

before the Board of Education? [K irkland:] Yes, I did.” The termination

agreement anticipated that Kirkland would initiate litigation against the District,

and the District agreed that in that litigation, it would not assert as a defense that

Kirkland had failed to exhaust his administrative remedies. According to the

terms of the termination agreement, the Board terminated Kirkland’s employment,

without any public comment, during a Board meeting on April 23, 2003. Because

Kirkland, by this agreement, waived any right to a pre-termination hearing, he has

22
failed to allege a claim for the deprivation of due process. The individual

Defendants, therefore, were entitled to qualified immunity on this claim as w ell.

D. W hether the individual Defendants are entitled to qualified
immunity from K irkland’s claim that D efendants deprived him
of a liberty interest in his reputation w ithout due process.

Kirkland alleges that Defendants deprived him of a liberty interest in his

future employability when Board member Samson made public comments

indicating that Kirkland had lied to the Board and falsified documents. In

addition, Kirkland alleges that Defendants deprived him of this liberty interest

without due process when he asked for, but never received, a “name-clearing”

hearing. But, again, Kirkland waived his right to any hearing through his

termination agreement with the District. Further, Kirkland acknowledges that he

never requested a hearing to clear his name separate from his request for a

pre-termination hearing. In light of that, Kirkland’s decision to waive a hearing

before the Board, in the April termination agreement, was sufficient to waive any

right Kirkland might have had to a name-clearing hearing separate from a

pre-termination hearing. Because K irkland thus waived his right to due process,

he has failed to allege a constitutional violation. The individual Defendants are

entitled to qualified immunity on this claim.

E. Conclusion

Kirkland’s claims alleging the Defendants deprived him of property and

23
liberty interests without due process fail to allege a constitutional violation. For

that reason, the district court erred in denying the individual Defendants qualified

immunity on these claims.

III. APPEAL NO . 05-1040

In this cross-appeal, No. 05-1040, Kirkland challenges a discovery ruling.

The magistrate judge limited each side to twenty-five interrogatories and requests

for production of documents. The parties, however, disagreed on, among other

things, how these twenty-five should be counted. 12 Kirkland, therefore, filed a

motion to compel discovery, which the magistrate judge denied. Kirkland could

have filed objections with the district court challenging the m agistrate judge’s

ruling. See Fed. R. Civ. P. 72(a). Instead, Kirkland and four of the individual

Defendants purportedly agreed to settle Kirkland’s claims asserted against them. 13

In light of that settlement, Kirkland decided not to file any objections to the

magistrate judge’s discovery ruling. After the time for Kirkland to file any such

objections had expired, however, the four Defendants backed out of the settlement

12
Kirkland contended that he could propound twenty-five requests to each
defendant; Defendants asserted, on the other hand, that Kirkland could propound
only a sum total of twenty-five requests to all D efendants.
13
According to Kirkland, he offered to dismiss without prejudice his claims
against individual Defendants Pilkington, Rademacher, Silver and Everett, if
these four Defendants agreed to testify on Kirkland’s behalf at trial and make “a
good faith effort to search for all documents requested in all of Plaintiff’s
Requests for Production of Documents and also serve and sign formal written
responses to those requests.”

24
agreement. 14 Kirkland then filed a motion to enforce the parties’ settlement

agreement. The magistrate judge recommended denying that motion, and the

district court adopted that recommendation. Kirkland now challenges that

decision in his interlocutory cross-appeal.

Because we have already concluded that all of the individual Defendants

are entitled to qualified immunity on all of Kirkland’s claims, and because this

discovery dispute involves four of those individual Defendants, this appeal is

moot. See Varrone v. Bilotti, 123 F.3d 75, 82 (2d Cir. 1997); Foster v. City of

Lake Jackson, 28 F.3d 425, 428 n. 5 (5th Cir. 1994); see also M cCardle v.

Haddad, 131 F.3d 43, 47 (2d Cir. 1997) (recognizing that, if defendant was

entitled to qualified immunity, that would moot plaintiff’s contentions asserted on

appeal). W e, therefore, lack jurisdiction to consider it. See generally Arizonans

for Official English v. Arizona, 520 U.S. 43, 67-74 (1997) (recognizing that if

there is no longer a live case or controversy, appellate court lacks jurisdiction to

14
Kirkland asserts that these Defendants informed him that they “could not
in good faith respond to any of the discovery requests and that the Defendants had
therefore decided to consider the settlement agreement cancelled.” The individual
Defendants, however, contend that Kirkland later included an additional term in
the settlement agreement that provided that they would “waive all of their
substantive objections and privilege assertions when they answered [K irkland]’s
discovery requests.” These Defendants, however, were concerned that a number
of Kirkland’s discovery requests requested “information protected by the
attorney-client privilege (a privilege which belongs to the school district, not the
individual defendants) and many of [Kirkland]’s other requests are overly broad
and fail to reasonably identify the information sought.” It was at this point that
they decided not to settle Kirkland’s claims against them.

25
consider the appeal); see also 13A Charles Alan W right et al., Federal Practice &

Procedure § 3533.10 (2d ed. 1984) (recognizing “that an appellate court should

not be required to resolve a moot dispute”).

Even if there was no mootness problem, this court would still lack

jurisdiction to consider the merits of this interlocutory cross-appeal.

Courts of appeals normally have jurisdiction only over final decisions
of the district courts. 28 U.S.C. § 1291. There are exceptions to [this]
final judgment rule. A judgment that is not the complete and final
judgment in a case is immediately appealable if it falls in that small
class which finally determine claims of right separable from, and
collateral to, rights asserted in the action, too important to be denied
review and too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated.

Timpanogos Tribe v. Conway, 286 F.3d 1195, 1199 (10th Cir. 2002) (citing

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)) (quotation,

alteration omitted). This court, then, has “jurisdiction over an extremely narrow

class of claims raised interlocutorily. The collateral order doctrine sets a high bar

for any interlocutory appeal, allowing appeal from only those decisions that are

conclusive, resolve important questions separate from the merits, and are

effectively unreviewable on appeal from final judgment.” Id. at 1200.

As previously explained, this court has jurisdiction to consider the

individual Defendants’ interlocutory appeal from the denial of qualified

immunity. See Perez, 421 F.3d at 1131; see also Denver Justice and Peace

Comm., Inc. v. City of Golden, 405 F.3d 923, 927 (10th Cir. 2005), cert, denied,

26
126 S. Ct. 1164 (2006). In light of that, we also have “discretion to exercise

pendent appellate jurisdiction over nonappealable issues . . . in the same case.”

Roska ex rel. Roska v. Sneddon, 437 F.3d 964, 970 (10th Cir. 2006).

It is appropriate to exercise pendent appellate jurisdiction where the
otherwise nonappealable decision is inextricably intertwined w ith the
appealable decision, or w here review of the nonappealable decision is
necessary to ensure meaningful review of the appealable one. A
nonappealable decision is inextricably intertwined with an appealable
one if resolution of the appealable decision necessarily resolves the
nonappealable issue as well. The exercise of pendent jurisdiction,
however, is generally disfavored.

Id. (citations, quotations omitted). Furthermore, “the Cohen [collateral order]

doctrine applies to pendent claims as w ell. Pendent claims are thus appealable

‘if, and only if, they too fall within Cohen’s collateral-order exception to the

final-judgment rule.’” Timpanogos Tribe, 286 F.3d at 1200 (quoting Sw int v.

Chambers County Comm’n, 514 U.S. 35, 49 (1995)).

“This circuit has repeatedly held that discovery orders are not appealable

under the Cohen doctrine.” Boughton v. Cotter Corp., 10 F.3d 746, 749 (10th Cir.

1993) (citing cases). There is no reason to depart from that established rule in

this case. See id. at 749-50 (recognizing there may be rare exceptions). The

district court’s decision denying Kirkland’s motion to enforce the settlement

agreement can be adequately reviewed on appeal from the final judgment entered

in this case. See id.

M oreover, this cross-appeal does not raise any issue that is inextricably

27
intertwined with the qualified immunity question we addressed as part of the

individual Defendants’ appeal. Kirkland specifically asserts that the documents

he sought to discover through the settlement agreement were relevant to the

individual Defendants’ appeal of the denial of qualified immunity because the

discovered materials would establish “the individual Defendants’ prior

understanding and knowledge that Kirkland was entitled to the due process that

they failed and refused to provide him.” But, as analyzed above, our qualified

immunity analysis did not turn on that issue. W e do not believe, therefore, that

the discovery ruling was inextricably intertwined with qualified immunity.

For all of these reasons, therefore, we DISM ISS the cross-appeal.

IV . C ON CLU SIO N

In appeal No. 05-1020, we REVERSE the district court’s decision denying

the individual Defendants qualified immunity and REM AND for further

proceedings consistent with this opinion. We DISM ISS the cross-appeal,

No. 05-1040, because we lack appellate jurisdiction to consider it.

28