FILED
United States Court of Appeals
Tenth Circuit
July 10, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JERRY V. RIGGINS,
Plaintiff-Appellee,
v. No. 08-1034
BRUCE GOODMAN, JULIE BOYD,
and WILLIAM A. SIMMONS,
Defendants-Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 06-cv-2261-WYD-MJW)
John R. Mann (Kevin P. Perez with him on the briefs) Kennedy Childs & Fogg,
P.C., Denver, Colorado for Defendants-Appellants.
Joseph A. Salazar, The Salazar Consultant Group, LLC, Thornton, Colorado for
Plaintiff-Appellee.
Before HARTZ, TYMKOVICH, and HOLMES, Circuit Judges.
TYMKOVICH, Circuit Judge.
This case arises out of Jerry Riggins’s termination from employment as a
police sergeant in Louisville, Colorado. Riggins asserted federal civil rights
claims against the City and several of its employees pursuant to 42 U.S.C. § 1983,
contending he was discharged without adequate procedural safeguards after he
suffered from a psychiatric episode that caused him to take administrative leave
for eight months. Riggins also brought a disability rights claim that is pending
below and not the subject of this appeal.
The municipal defendants filed a motion for summary judgment on the due
process claim, asserting qualified immunity. The district court denied the motion,
and the defendants appealed. We conclude that the City’s three-step appeals
process provided adequate pretermination due process for Riggins to challenge
the City officials’ decision, and that the decision was not otherwise the result of a
biased process.
Accordingly, we REVERSE.
I. Background
Riggins was employed as a police officer with the Louisville, Colorado
Police Department. In May 2004, he experienced a psychiatric episode in which
he complained that someone was after him, his hotel room was bugged, and there
was a computer chip implanted in his head. His wife reported the incident, and he
was taken to a hospital and placed on mental health hold. As a result, Riggins
was placed on administrative leave and relieved of his duties with the police
department.
In September 2004, the City received from Riggins’s psychiatrist a report
that Riggins appeared to be able to return to work, but that he would recommend
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a separate fitness for duty exam. In a later report, the doctor also indicated that
he anticipated Riggins taking medications for at least another six months. He
stated that if a patient discontinued his medications prematurely, he might risk a
recurrence of his previous delusional symptoms.
The City referred Riggins to a psychologist for a fitness for duty
determination. In November 2004, the psychologist examined Riggins and opined
that he was psychologically fit to return to duty as a police officer. The
psychologist cautioned, though, that “the public safety factors associated with
[Riggins’s] position require that his return be done in a carefully planned program
with close supervision in order to monitor and assess his abilities to function
safely and effectively as an officer.” Aplt. App. at 162. Additionally, the City
sought the opinion of a psychiatrist who advised caution in the resumption of
duties for employees taking antipsychotic or antidepressant medications. That
doctor submitted a report on January 6, 2005 questioning whether Riggins was
ready to return to duty as a law enforcement officer.
After reviewing the various reports, Police Chief Bruce Goodman
determined that Riggins was unable to resume his duties, and began proceedings
to terminate Riggins. The City’s policies provided that a department director
“may impose dismissal upon the prior approval of the Human Resources Officer
and City Administrator.” Aplt. App. at 96. Accordingly, Goodman sent a memo
on January 11, 2005 to the Human Resources Director and City Manager
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explaining his reasons for recommending Riggins’s termination. His memo
concluded: that there were “several observations by [the examining doctors] that
cause[d him] to believe that we do not know if Jerry no longer presents a threat to
himself or others,” Aplt. App. at 154; that the compulsory continued use of
medications to prevent delusional symptoms indicates that Riggins’s delusions
remain possible if not probable; that “uncertainty is a very serious concern
because we and his doctors will not know if he discontinues taking the
medications”; and that despite Riggins having been a trustworthy and loyal
employee for years, the unresolved public safety issues do not permit him to
continue work as a police officer. Id. On January 20, 2005, the City Manager,
William Simmons, and acting Human Resources Director, Julie Boyd, provided
the requisite approval.
On January 26, 2005, Goodman sent Riggins a letter stating “[t]his letter is
to advise you of the City’s decision to terminate your position . . . effective . . .
February 7, 2005.” Aplt. App. at 86. “Your administrative leave without pay
continues until the final outcome of any hearings you may request.” Id. The
letter also explained the administrative process available to contest the decision,
including the opportunity for a hearing and the right to object to the “proposed
termination” before a “final decision” would be made:
As explained in Section Seven of your Employee Handbook, a
department head may impose dismissal upon the approval of the Human
Resources Officer and the City Manager. On January 11, 2005, I
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recommended that action, and on January 20, 2005, the City Manager
and Human Resources Officer approved your dismissal. However, prior
to a final decision regarding your employment, you may request a
hearing with me, and you have the right to appeal my decision. If you
want to request a hearing, please submit that request to me in writing
within five working days of the date you receive this letter. . . . At the
hearing you will have the opportunity to explain or rebut the information
presented, and to otherwise respond to the reasons for the proposed
termination.
Aplt. App. at 86 (emphasis added). The letter further explained that
following the hearing before Goodman—if one was requested—Goodman
would make his “final decision”; that decision then would be subject to an
appeal of right through the City’s human resources department:
Following the hearing, I will make my final decision. You may appeal
my decision to the City’s Human Resources Officer through the appeal
procedure outlined in Section Seven of your Handbook.
Id.
Goodman’s letter outlined five reasons for Riggins’s termination: (1) the
lack of an unconditional, unqualified medical fitness for duty release; (2) the
adverse and unknown effect of the prescribed medications on Riggins’s ability to
perform as a police officer; (3) the City’s rejection of a therapist’s opinion that
Riggins was fit for duty based on that therapist’s lack of expertise to make such a
judgment; (4) the police department’s inability to create and administer the
“carefully planned program” recommended by the psychologist; and (5) “[n]one of
the doctors know what caused the delusional episode or what may cause it to
reoccur.” Id. at 87–88. The letter continued, “[f]rom a public safety standpoint,
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we can not endorse your being a police officer with the Department.” Id. at 88.
Goodman concluded: “this is the toughest personnel decision I have ever made.”
Id.
Goodman’s letter triggered the City’s three-step appeal process. Step one
allows an employee to present his appeal to the department director (Goodman). If
the grievance is not settled in step one, an employee has five working days,
pursuant to step two, to forward the written grievance to the Human Resources
Officer (Boyd), who will then meet with him. Finally, step three involves an
appeal to the City Administrator (Simmons). The decision of the City
Administrator is final and binding on the parties.
Step One. After receiving the letter, Riggins took advantage of the three-
step appeals process by requesting an initial meeting with Goodman. Given this,
his effective termination date was postponed pending the resolution of that
process. The meeting with Goodman took place on February 8, 2005. At that
meeting, Riggins, represented by counsel, offered evidence and an explanation in
response to Goodman’s January 26 letter. Among other things, Riggins claimed
that he was ready to go back to work; he was not a threat to anyone; he had made
great improvements; the “past is the past”; he had done everything he was asked to
do; and with one exception, the doctors he had seen had cleared him for return to
work. Riggins’s attorney argued that the City would have less physiological
testing data on a new recruit than on Riggins. He suggested flexibility in
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Riggins’s assignments, and phasing Riggins back into the organization. Riggins’s
counsel also contended that the City accommodates officers with diabetes, for
example, and it should accommodate Riggins too.
After the meeting, Goodman decided his original recommendation should
stand because Riggins provided insufficient information to mitigate the basis for
termination.
Step Two. Riggins then pursued step two of the process by appealing
Goodman’s decision to the acting Human Resources Manager. Boyd conducted a
hearing on April 22, 2005, again with Riggins represented by counsel. Riggins’s
counsel contended Riggins’s regimen of medications had been successful, and
Riggins was now able to perform his job. He also argued the City perceived a
disability that was not present. Boyd inquired into whether Riggins had any
indication of problems prior to the psychiatric episode, and Riggins informed her
that he was not sure, and that he had been having trouble sleeping before the
incident. Riggins indicated he was ready to return to work, and his counsel
analogized Riggins’s situation to that of an officer with diabetes whose chemical
imbalance was resolved by medication.
After the hearing, Boyd recommended upholding Goodman’s decision,
based on her “concern for public safety.” Aplt. App. at 118. She concluded “the
stakes are too high and the risk too great for a tragedy to occur if Mr. Riggins is
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working as a police sergeant in Louisville and suffers a recurrence of [a]
delusional episode.” Id.
Step Three. Finally, Riggins appealed to the City Manager under step three,
who conducted a hearing on May 17, 2005. Riggins was again represented by
counsel at this hearing. Riggins and his counsel argued that Riggins was ready to
resume work; that with continued therapy and medication, he was symptom free;
and that his attending physician and therapist said he can return to work.
The City Manager upheld Riggins’s termination, stating “the City must base
its decisions first and foremost on consideration of the public safety and welfare.”
Id. at 123. He notified Riggins of his decision in a letter dated May 24, 2005. The
City Manager’s decision was the last stage of the process, and under City policy
was considered final and binding. Riggins’s proposed termination, which had
been postponed while the hearings took place, therefore became effective on May
24, 2005.
Riggins filed civil rights and disability claims against the City officials,
including a § 1983 claim against Goodman, Boyd, and Simmons. He contends the
defendants violated his due process rights because he was not afforded adequate
pretermination due process and because of bias. The City officials requested
summary judgment on qualified immunity grounds, but the district court denied
that request. The City officials then brought this interlocutory appeal.
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II. Discussion
Riggins makes two arguments on appeal. First, he claims that the City
officials failed to afford him adequate due process prior to discharging him.
Second, he contends the City’s decisionmakers were biased against him and had
made up their minds before he had a chance to present his side of the story.
The City officials counter that they provided Riggins with a meaningful
right to contest and appeal the proposed termination decision before termination
became effective, and that the process afforded Riggins was fair and unbiased.
They therefore claim Riggins can assert no due process violation and they are
entitled to qualified immunity.
Qualified immunity entitles the defendant to avoid the travails of extended
litigation, allowing interlocutory review of any “legal questions that arise from the
denial of qualified immunity.’” York v. City of Las Cruces, 523 F.3d 1205, 1209
(10th Cir. 2008) (citing Perez v. Ellington, 421 F.3d 1128, 1131 (10th Cir. 2005)).
Although we lack jurisdiction to review the district court’s rulings on the
sufficiency of the evidence, Wilkins v. DeReyes, 528 F.3d 790, 797 (10th Cir.
2008), cert. denied, 129 S. Ct. 1526 (2009), we nevertheless may determine
whether a given set of facts violates a clearly established constitutional right.
Hesse v. Town of Jackson, Wyoming, 541 F.3d 1240, 1244 (10th Cir. 2008).
Under the qualified immunity doctrine, “government officials performing
discretionary functions, generally are shielded from liability for civil damages
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insofar as their conduct does not violate clearly established [federal] statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). 1 When a defendant asserts qualified
immunity at summary judgment, the burden shifts to the plaintiff, who must clear
two hurdles in order to defeat the defendant’s motion. The plaintiff must
demonstrate on the facts alleged both that the defendant violated his constitutional
or statutory rights, and that the right was clearly established at the time of the
alleged unlawful activity. Pearson v. Callahan, 129 S. Ct. 808, 815–16, 818
(2009).
In this interlocutory appeal posture, we are limited to addressing legal
questions. York, 523 F.3d at 1209. The question before us turns on an issue of
law. For purposes of the appeal, we accept the facts as the plaintiff alleges them;
however, the Supreme Court has held that qualified immunity is proper when the
record plainly demonstrates no constitutional right has been violated, or that the
allegations do not offend clearly established law. See Scott v. Harris, 550 U.S.
372 (2007).
The Supreme Court recently discarded a review process that required us to
mechanically examine these questions sequentially, first considering whether a
right had been violated, and then second—if we concluded a right had been
1
We agree the defendants were acting in a discretionary capacity here.
See Harlow, 457 U.S. at 816–18 (1982).
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violated—whether that right was clearly established at the time of the alleged
violation. Pearson, 129 S. Ct. at 816–22. Pearson retired this “rigid order of
battle” approach, instead affording appellate courts discretion to decide “which of
the two prongs of the qualified immunity analysis should be addressed first in light
of the circumstances in the particular case at hand.” Id.; see also Christensen v.
Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir. 2009).
Riggins points to two constitutional violations, both based on the Due
Process Clause: (1) denial of adequate due process before termination, and (2)
denial of an unbiased tribunal. We address each in turn.
A. Due Process Before Termination
To “assess whether an individual was denied procedural due process, courts
must engage in a two-step inquiry: (1) did the individual possess a protected
interest such that the due process protections were applicable; and, if so, then (2)
was the individual afforded an appropriate level of process.” Montgomery v. City
of Ardmore, 365 F.3d 926, 935 (10th Cir. 2004) (internal quotation marks and
citation omitted). The City officials do not contest that Riggins enjoyed a
protected property interest in his employment. The only question is the level of
process to which he was entitled to protect that property interest.
“An essential principle of due process is that a deprivation of life, liberty or
property ‘be preceded by notice and opportunity for hearing appropriate to the
nature of the case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
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(1985) (citation omitted). The Supreme Court has described “the root
requirement” of the Due Process Clause as being “that an individual be given an
opportunity for a hearing before he is deprived of any significant property
interest.” Id. (citing Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in
original)). “This principle requires ‘some kind of a hearing’ prior to the discharge
of an employee who has a constitutionally protected property interest in his
employment.” Id. (citation omitted).
For government employees, such a hearing requires: (1) “oral or written
notice [to the employee] of the charges against him”; (2) “an explanation of the
employer’s evidence”; and (3) “an opportunity [for the employee] to present his
side of the story.” Montgomery, 365 F.3d at 936 (citing Loudermill, 470 U.S. at
546); see also Langley v. Adams County, 987 F.2d 1473, 1480 (10th Cir. 1993).
“A full evidentiary hearing is not required prior to an adverse employment action.”
West v. Grand County, 967 F.2d 362, 367 (10th Cir. 1992). Instead, the
“individual entitled to due process protection needs only to be given notice and an
opportunity to respond.” Id.
We have upheld as sufficient to meet these requirements informal
proceedings, such as pretermination warnings and an opportunity for a face-to-face
meeting with supervisors, see Seibert v. University of Oklahoma Health Sciences
Center, 867 F.2d 591, 598 (10th Cir. 1989), and even a limited conversation
between an employee and his supervisor immediately prior to the employee’s
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termination, see Powell v. Mikulecky, 891 F.2d 1454, 1459 (10th Cir. 1989). The
objective of the process is “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.” West, 967 F.3d at 367 (citation omitted)). 2
The City officials argue that under these cases, Riggins was entitled to
notice of the proposed termination, an explanation of the evidence against him,
and an opportunity to respond—all of which he received. See Tonkovich v. Kansas
Bd. of Regents, 159 F.3d 504, 521 (10th Cir. 1998). In response, Riggins contends
the January 26, 2005 letter discharged him. He thus argues the hearings afforded
to him took place after he was terminated and could not cure the lack of adequate
pretermination process. But that is not the case. Riggins’s allegations do not
establish, on this record, that the City discharged him prior to the City Manager’s
hearing in May 2005.
As an initial matter, the process afforded to Riggins more than adequately
satisfied due process requirements. Based on the City’s policy, Riggins was
2
Riggins is not contesting the availability or adequacy of the City’s post-
termination procedures. Benavidez v. City of Albuquerque, 101 F.3d 620, 626
(10th Cir.1996) (“When the pre-termination process offers little or no opportunity
for the employee to present his side of the case, the procedures in the
post-termination hearing become much more important.”). Instead, Riggins
argues that he was not afforded any pretermination process—that the only process
he received was after his termination.
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provided the opportunity for a three-step review process, pursuant to which he was
given written notice of the charges against him, an explanation of the evidence,
and several opportunities to present his side of the story. 3 Our cases do not require
a more elaborate process than that. 4
For example, in Powell, we concluded that the pretermination process
“accorded with the requirements established in Loudermill” when an employee
was terminated during a meeting after he was asked and admitted to having had
unauthorized communications. 891 F.2d at 1459. Although Powell was not
informed that he was under investigation prior to the meeting, we found that he
received oral notice of the charges when he was confronted at the meeting, he
admitted to the allegations, and he was not entitled to any pre-notification notice
or to a delay between the notice and opportunity to respond. Id. Similarly, in
3
The district court found a genuine issue of material fact as to whether the
defendants complied with all of the City’s procedures. Because the termination
comported with constitutionally minimal due process, though, any allegation that
the defendants failed to precisely follow City procedures is immaterial. See Ward
v. Anderson, 494 F.3d 929, 935 (10th Cir. 2007); Hulen v. Yates, 322 F.3d 1229,
1247 (10th Cir. 2003); Hicks v. City of Watonga, 942 F.2d 737, 746 n.4 (10th Cir.
1991) (“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.” (citation omitted)).
4
In effect, it was as if Riggins was told, “I have made a recommendation
that you will be discharged effective February 6 unless you can give us a good
reason not to terminate you. Here is how you can present your reasons why the
proposed termination should not occur, and we will postpone the effective date of
your termination while you provide these reasons.”
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West, we concluded the meetings and consultations in that case satisfied
constitutional mandates when the totality of the circumstances indicated West
knew in advance of her termination that the county attorney proposed to eliminate
her job, and she had several pretermination opportunities to discuss her potential
termination with the new county attorney and other county officials. 967 F.2d at
367–38 (emphasizing that “[p]laintiff was not fired out of the blue. Plaintiff was
not fired for reasons that he did not know. Plaintiff was not fired without being
given the ‘opportunity to present his side of the story.’” (citing Seibert, 867 F.2d
at 599)).
The record amply confirms the City officials extended Riggins these
procedural rights. Goodman’s January 26, 2005 letter notified Riggins that he had
made an initial decision to terminate him, and informed him of the reasons for his
termination and the basis for it. The letter also instructed him on his rights to
appeal and identified the City’s policies that allowed him to contest the
“proposed” termination prior to his termination becoming effective. The letter
stated that only after an appeal—if requested—would a “final decision” be made.
Aplt. App. at 86. Riggins took advantage of these procedures, submitting
testimony and documents through counsel. These procedures stemmed from the
City’s employee manual that plainly sets forth the process and advises that
discharge will not occur until the culmination of the appeals.
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While Riggins contends the letter constituted discharge, he ignores the plain
language of the letter and the City policies which it references, asking us to
construe them in a way that means the opposite of what they say. The record is
replete with language demonstrating the proposed termination was not final:
“proposed termination”; “effective . . . February 7”; “prior to a final decision
regarding your employment, you may request a hearing with me, and you may
appeal my decision”; “following the hearing, I will make my final decision”; “you
will have the opportunity to explain or rebut”; “the decision of the City
Administrator at Step 3 will be final and binding on the parties”; “[p]rior to any
final decision regarding dismissal, you will be given the opportunity to request a
hearing before your department director.” Aplt. App. at 86, 96, 241.
In the face of this language, Riggins points to nothing that would support a
contrary interpretation. On the other hand, the parties’ conduct after Goodman’s
letter confirms that both sides interpreted the letter to mean that Riggins could
contest Goodman’s initial decision before the proposed termination would become
effective. Riggins met with Goodman and marshaled arguments and evidence
responding to the reasons set forth by Goodman as the basis for discharge. During
the appeal process, the City maintained him on administrative leave.5 And nothing
in the record suggests that he was removed from the City’s employee rolls or that
5
Riggins does not claim that his administrative leave without pay triggers
constitutional scrutiny. His argument is based on the loss of his job.
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the City took steps to discontinue his benefits or change his employment status
until the conclusion of step three of the process. Due process requires nothing
more.
It is true Goodman recommended to City officials that Riggins be
terminated prior to sending the January 26, 2005 letter. But nothing requires a
municipal employer to hold a hearing prior to the initial decision to terminate a
position; rather, a hearing is required before employees are actually deprived of
their jobs. That is, a hearing is required before the employee is “deprived of any
significant property interest.” See Loudermill, 470 U.S. at 542. In other words,
due process is required not before the initial decision or recommendation to
terminate is made, but instead before the termination actually occurs. See Jackson
v. St. Joseph State Hosp., 840 F.2d 1387, 1391 (8th Cir. 1988) (“Due process . . .
does not require predecision hearings. It only requires an opportunity to be heard
prior to the termination of benefits.”). 6
6
Riggins points to several decisions in support of a contrary conclusion.
We are not persuaded these cases apply here. In Montgomery v. City of Ardmore,
365 F.3d at 932, 935–36, for example, we found a due process violation when an
employee on medical leave contacted his supervisor to inquire about returning to
work, and he was informed that his employment had already been terminated,
effective at an earlier date. In contrast, Riggins was provided with notice of his
immediate supervisor’s initial decision to terminate him and the reasons
supporting that decision long before his termination became effective, and he was
given an opportunity to present his side of the story and to appeal the decision
before his proposed termination went into effect.
Similarly, in Seibert v. University of Oklahoma Health Sciences Center,
(continued...)
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To hold otherwise would ignore the reality that supervisors make
termination decisions for myriad reasons. A policy like the one here that allows
for supervisors to make an initial recommendation to terminate based on certain
charges, and to have a superior approve of that initial recommendation, provides
more, not fewer, protections for public employees. However one characterizes
them, the City’s policies build in substantial protections for employees prior to the
loss of jobs or benefits.
Finally, even assuming some lack of certainty existed as to the meaning of
the January 26 letter and whether there was a constitutional violation concerning
pretermination due process, qualified immunity would still be appropriate.
Riggins cannot show that clearly established law rendered the process
implemented by the City officials here unconstitutional. The notification of a
decision to terminate at a future date along with the reasons for termination,
6
(...continued)
867 F.2d at 596–99, we found that although the employer’s policy suggested a
termination was not effective for several days, the employee lost his pay and
benefits immediately upon notice, he was told “[a]s of now, you are terminated,”
and the employment policy defined the effective date of termination as the date of
notice, so long as the employee did not succeed in the grievance process. Given
that, we concluded the University’s policies demonstrated, as a practical matter,
that termination occurred as soon as the employee was given “notice of
termination.” Id.
This case is also distinct from Lovingier v. City of Black Hawk, No. 98-
1133, 1999 WL 1029125 (10th Cir. Nov. 12, 1999), relied on by Riggins. There,
the court found Lovingier had stated “a violation of the requirement clearly
established by Loudermill” when his termination became effective “at the very
moment he was given notice of the charges against him.” Id. at *3.
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followed by a three-step process designed to give several layers of review, does
not offend clearly established law. See Gann v. Cline, 519 F.3d 1090, 1092 (10th
Cir. 2008) (explaining that qualified immunity shields officials from damages
actions unless their conduct was unreasonable in light of clearly established law).
A right is clearly established when, at the time of the alleged violation, “the
contours of the right [were] sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Id. A plaintiff can
demonstrate that a constitutional right is clearly established by references to cases
from the Supreme Court, the Tenth Circuit, or the weight of authority from other
circuits. Id. To determine whether the law was clearly established, we look to the
relevant precedents at the time of the challenged actions and the obviousness of
the violation in light of them; “we do not force public officials to guess—on pain
of personal liability for damages—how the law will have developed by the time
their actions are scrutinized in federal court.” Milligan-Hitt v. Bd. of Trs. of
Sheridan County, 523 F.3d 1219, 1233 (10th Cir. 2008). Moreover, “the plaintiff
‘must demonstrate a substantial correspondence between the conduct in question
and prior law allegedly establishing that the defendant’s actions were clearly
prohibited.’” See Medina v. City of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)
(citation omitted). Although “the plaintiff need not show that the specific action
at issue has previously been held unlawful, the alleged unlawfulness must be
‘apparent’ in light of preexisting law.” Id. (citation omitted).
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Applying these principles, no clearly established law would clearly advise
the defendants that their conduct or implementation of the City’s process here
violated Riggins’s due process rights. A reasonable city official would not
conclude that these policies and the process afforded Riggins as set forth in
Goodman’s letter denied him the right to challenge the charges against him.
In conclusion, because the City officials afforded Riggins adequate
procedural protections prior to the deprivation of his property interest in
employment, he cannot assert a cognizable violation of a constitutional right or
that the City officials violated clearly established law. The City defendants are
therefore entitled to qualified immunity.
B. Impartial Process
Riggins also contends the defendants violated his constitutional right to a
fair tribunal because the City’s decisionmakers were biased. He contends the
City’s investigatory and adjudicative functions were combined in the same
personnel; he emphasizes that the same individuals approved the initial decision to
terminate him and then presided over the hearings contesting the decision. He
argues they had already made up their minds that he should be terminated prior to
presiding over the hearings. 7
7
The defendants argue that Riggins waived the issue of bias by not
objecting at the time of the hearing before the City Manager. Because we
conclude Riggins has shown no partiality, we need not reach this argument.
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Impartiality of the tribunal is an essential element of due process. See
Withrow v. Larkin, 421 U.S. 35, 46–47 (1975). We have held, though, that “a
substantial showing of personal bias is required to disqualify a hearing officer or
tribunal . . . .” Corstvet v. Boger, 757 F.2d 223, 229 (10th Cir. 1985). Indeed, a
person claiming bias on the part of an administrative tribunal “must overcome a
presumption of honesty and integrity in those serving as adjudicators.” Withrow,
421 U.S. at 47. “Due process is violated only when ‘the risk of unfairness is
intolerably high’ . . . there must be some substantial countervailing reason to
conclude that a decisionmaker is actually biased with respect to factual issues
being adjudicated.” Hicks v. City of Watonga, 942 F.2d 737, 746–47 (10th Cir.
1991); see also Gwinn v. Awmiller, 354 F.3d 1211, 1220 (10th Cir. 2004).
The role of city employees in the process with some knowledge of the
matter does not ordinarily create concern. “Mere familiarity with the facts of a
case gained by an agency in the performance of its statutory role does not . . .
disqualify a decisionmaker” and demonstrate actual bias. Hortonville Joint School
District No. 1 v. Hortonville Education Ass’n, 426 U.S. 482, 493 (1976); Mangels
v. Pena, 789 F.2d 836, 838 (10th Cir. 1986). Moreover, an administrative tribunal
member is not disqualified because that member has “ruled strongly against a
party” in a prior hearing or because he or she may have participated in the
initiation of the proceedings. Hicks, 942 F.2d at 750–51.
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In many small public agencies human resource personnel wear multiple hats.
Thus, the “contention that the combination of investigative and adjudicative
functions necessarily creates an unconstitutional risk of bias in administrative
adjudication has a . . . difficult burden of persuasion to carry.” Withrow, 421 U.S.
at 47. The fact “that [an agency] had entertained . . . views as the result of its
prior ex parte investigations did not necessarily mean that the minds of its
members were irrevocably closed on the subject . . . .” Id. at 48, 56–58 (citation
omitted). Thus, our case law generally rejects the idea that a combination of
adjudicatory and investigatory functions is a denial of due process. Id. at 51,
56–58; see also Hicks, 942 F.2d at 748. Otherwise,
almost anytime an employee in a small bureaucracy—where everyone
knows everyone else—clashes with his superiors, the body elected to
make disciplinary decisions will be constitutionally disqualified from
doing so. This contravenes the Supreme Court’s clear desire to leave such
decisions in the hands of the bodies duly elected to make them.
Hicks, 942 F.2d at 748 (citations omitted). We also will not indulge a
presumption against a public employer merely because of his ultimate personnel
decision. See id.
Personal bias may be shown by prior statements going to the merits or
animus that establish the decisionmaker cannot be fair. In McClure v. Independent
School District Number 16, 228 F.3d 1205, 1215–16 (10th Cir. 2000), for example,
bias was established where decisionmakers “publicly stated their intent to
terminate [ ] McClure’s employment prior to the hearing at which the matter of her
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termination was to be decided.” And in Staton v. Mayes, 552 F.2d 908, 914 (10th
Cir. 1977), bias was shown when three of five school board members made
statements prior to the hearing that the superintendent should be fired. We
emphasized the “firm public statements before the hearing” by a defendant who
publicized his pledge to seek a new administration and to change the
superintendent, and who advertized that two other defendants had publicly said
that no progress could be made without a new superintendent. Id. In those
circumstances, “statements on the merits by those who must make factual
determinations on contested fact issues of alleged incompetence and willful
neglect of duty, where the fact finding is critical . . . left no room for a
determination that there was a decision by a fair tribunal, with the appearance of
fairness.” Id. at 914–15.
Neither situation applies here. Riggins’s evidence includes only his and his
attorney’s affidavits, with their statements of belief that the defendants were
biased. 8 Riggins also refers to Goodman’s initial decision to terminate Riggins,
his request for approval to terminate Riggins, the Human Resources Director’s and
8
Riggins stated “I do not believe that Individual Defendants acted without
bias or were impartial in deciding my termination appeal as they made the
decision to terminate my employment prior to January 26, 2005.” Aplt. App. at
168. His counsel stated: “I believe that the . . . memorandum and the January 24,
2005 e-mail from Defendant Boyd demonstrates that . . . Defendants made their
decision to terminate [Riggins] prior to the January 26, 2005 termination letter . .
. .” Id. at 172 (emphasis in original).
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City Manager’s approval of Goodman’s recommendation, and an email the Human
Resources Manager sent to Goodman with a draft letter attached.
We see none of these allegations alone or together as creating an inference
of bias to overcome qualified immunity.
First, Riggins’s and his attorney’s affidavits contain only conclusory
allegations of bias. A complaint that contains “conclusory allegations of bias,
without alleging factual support,” however, is insufficient to establish a due
process violation. Tonkovich, 159 F.3d at 520.
Beyond conclusory allegations, Riggins’s claim relies on the fact that the
same individuals made or approved the initial recommendation to terminate him
and then presided over the hearings. But under our cases, that alone is insufficient
to establish a constitutional violation. As we have explained, it is typical,
especially in smaller jurisdictions, to combine investigatory and adjudicatory
processes in one body. “[I]nvolvement of tribunal members in earlier proceedings
in the same case does not overcome the presumption of honesty and integrity.”
Hicks, 942 F.2d at 748; see also Withrow, 421 U.S. at 46–52. And “‘exposure to
evidence presented in nonadversary investigative procedures is insufficient in
itself to impugn the fairness’ of a later adversary hearing.” Mangels, 789 F.2d at
838 (citation omitted). Nor does procedural due process require access to
professional hearing officers or hearing officers not employed by the governmental
body or agency taking the adverse action. Tonkovich, 159 F.3d at 519–20.
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Our cases, moreover, do not require a process where reviewing personnel
are completely divorced from or blinded to the underlying nature of the reasons for
dismissal. In both Staton, 552 F.2d at 914, and McClure, 228 F.3d at 1216, the
decisionmaker made statements going to the merits of the matter or which
demonstrated animus before the due process hearing. Riggins’s allegations here,
however, do not demonstrate any personal animus or bias with respect to the
factual matters to be determined in the appeals process. Cf. McClure, 228 F.3d. at
1216 (“[I]n Hicks [we] reiterated our holding that public statements by a
decisionmaker prior to a termination hearing that demonstrate actual bias with
respect to the factual matters to be adjudicated, raise a genuine issue of fact on a
claim that a plaintiff was deprived of the right to an impartial tribunal.” (citing
Hicks, 942 F.2d at 746–48)).
In contrast, neither the Police Chief, the Human Resources Manager, nor the
City Manager made statements demonstrating bias prior to the initial investigation
or during the three-step process. Rather, the record shows to the contrary.
Goodman followed City personnel policies by undertaking an extensive
evaluation of Riggins’s continued employment as a police officer, formulating a
preliminary recommendation to terminate Riggins, and seeking the appropriate
approvals necessary to implement his recommendation. Goodman then notified
Riggins that he had initially decided to terminate him, but also that Riggins had an
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opportunity to convince him otherwise at a meeting before any decision would
become final and before the proposed termination would go into effect.
To the extent Riggins complains that Goodman as Police Chief made the
initial termination recommendation and then presided over Riggins’s first pre-
termination hearing, we see no constitutional problem. Riggins’s allegations do
not establish that Goodman was actually biased. The mere showing that a
supervisor initially recommended a dismissal and then met with the employee
prior to that employee’s termination is ordinarily insufficient to establish a
constitutional violation. See West, 967 F.2d at 368 (finding that a meeting with
the supervisor, who ultimately terminated the employee, provided “sufficient
notice and opportunity to respond to satisfy the pretermination due process
requirements”); see also Seibert, 867 F.2d at 598–99 (finding that meetings with a
foreman concerning plaintiff’s insubordination which led to foreman firing
plaintiff were sufficient to satisfy constitutional requirements). Moreover,
Goodman’s role was only to conduct an initial pretermination hearing; Simmons
and Boyd presided over hearings after the hearing conducted by Goodman. See 2
Isidore Silver, Public Employee Discharge & Discipline § 17.06 (3d ed. 2001)
(“The supervisor officiating at the [initial pretermination] meeting need not be
impartial. Indeed, it is often assumed that the supervisor who best knows the
charges (and who perhaps has even brought them) is the most appropriate initial
decision-maker.”); see, e.g., Locurto v. Safir, 264 F.3d 154, 173–74 (2d Cir. 2001)
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(collecting cases and concluding that a neutral adjudicator is not a necessary
component of due process at a pretermination hearing, so long as the plaintiff is
afforded a hearing before a neutral adjudicator after termination).
And although City policy required the Human Resources Manager and City
Manager to initially approve the process going forward, these officials held
subsequent proceedings where Riggins contested Goodman’s recommendation.
Those hearings allowed Riggins to challenge the recommendation and the basis for
it, including the opportunity to present evidence and his own testimony. These
City officials are entitled to a presumption of integrity, Withrow, 421 U.S. at 47,
and Riggins does not overcome that. As explained above, exposure to evidence or
involvement in nonadversary investigative procedures is insufficient in itself to
impugn the fairness’ of a later adversary hearing. Mangels, 789 F.2d at 838; see
also Hortonville, 426 U.S. at 493; Withrow, 421 U.S. at 46–52, 56–58; Hicks, 942
F.2d at 748. At no time during these proceedings did Riggins or his counsel ever
complain that the City personnel were not impartial. Rather, the record shows
these officials had no “personal or financial stake in the decision that might create
a conflict of interest, and there is nothing in the record to support charges of
personal animosity.” Hortonville, 426 U.S. at 492.
Under the circumstances, no clearly established law would advise
reasonable decisionmakers that the appeals process and their role in it, as alleged
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here, transgressed clearly established constitutional rights. See Gann, 519 F.3d at
1092; Milligan-Hitt, 523 F.3d at 1233.
In conclusion, Riggins’s allegations do not establish a constitutional
violation or that under clearly established law the City’s appeals process and
decisionmakers were biased. The defendants are therefore entitled to qualified
immunity.
III. Conclusion
Because we conclude that the defendants are entitled to summary judgment
on qualified immunity grounds, we REVERSE.
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Riggins v. Goodman
Court: Court of Appeals for the Tenth Circuit
Date filed: 2009-07-10
Citations: 572 F.3d 1101
Copy CitationsCombined Opinion