McClure v. Independent School District No. 16

F I L E D
United States Court of Appeals
Tenth Circuit

OCT 6 2000
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

BETTY McCLURE,

Plaintiff-Appellee/Cross-Appellant,

v.

INDEPENDENT SCHOOL DISTRICT NO.
16, MAYES COUNTY, OKLAHOMA, also
known as Salina Public School District,
Nos. 99-5029
Defendant-Appellant/Cross-Appellee,
99-5031
MARION STINSON and DENNIS
WESTON,

Defendants-Cross-Appellees.

LARRY MILLS, JOE BROWN, and BILLY
RICE,

Defendants.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 97-CV-825-B)

Mark S. Rains (Jerry A. Richardson with him on the briefs) of Rosenstein, Fist &
Ringold, Tulsa, Oklahoma, for Defendant-Appellant /Cross-Appellee and
Defendants-Cross-Appellees.

Phyllis L. Walta of Walta & Walta, Enid, Oklahoma, for Plaintiff-Appellee/Cross-
Appellant.

Before SEYMOUR, Chief Judge, ALARCÓN, * and BALDOCK, Circuit Judges.

SEYMOUR, Chief Judge.

Betty McClure brought this action under 42 U.S.C. § 1983 against

Independent School District No. 16 (the District), also known as the Salina Public

Schools, and the five members of the Salina Board of Education (the Board).

Mrs. McClure alleged that the termination of her employment as an elementary

school principal with the District deprived her of her constitutional right to

procedural due process. The district court granted summary judgment for Mrs.

McClure in part but held that the individual board members were entitled to

qualified immunity. Both sides appeal. We affirm in part, reverse in part, and

remand for further proceedings.

I

A review of the record reveals the following facts, many of which are

*
The Honorable Arthur L. Alarcón, Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.

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undisputed. Mrs. McClure has a college degree in elementary education and a

Master’s degree in special education, as well as post-Master’s degrees in

psychometry 1 and school administration. After working for twenty years in other

school districts, she worked for six years as an elementary school principal in the

Salina school system. During her sixth year, the 1995-96 school year, she was

evaluated by the then-superintendent of schools, Tom Merritt, and given an

“excellent” rating. Her contract was renewed for the 1996-97 school year in

February 1996 by a unanimous vote of the Board.

Her troubles apparently began as a result of her activities on behalf of the

District to obtain additional monies for the school system under the Impact Aid

Act. 2 Due to the efforts of Mrs. McClure and another individual, the District

received well over one million dollars in Impact Aid funds. Superintendent

Merritt, who had authorized the applications for additional funds, asked the Board

to reward Mrs. McClure and the other individual for their efforts with payments

of one percent each of the monies received. The Board unanimously approved the

1
A psychometrist performs educational diagnostics used in special
education programs to evaluate a child’s special needs and to develop a plan of
improvements.
2
The Impact Aid Act provides funds to school districts that are financially
burdened by federal ownership of property within the district that reduces the
district’s tax base and/or increases the student population. See generally
Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166,
1167-68 (Fed. Cir. 1995).

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payments in July 1995. During the course of the 1995-96 school year, Mrs.

McClure received approximately $10,000 to $12,000 from the funds received by

the District that school year.

The Board subsequently began to question the payments because the

amounts were higher than anticipated. 3 They voted to disprove any payments for

monies received in the 1996-97 school year. Superintendent Merritt resigned in

May 1996. The Board held an executive session regarding the Impact Aid

applications in June of that year and then tabled any action to investigate the

matter further.

A new superintendent, Vol Woods, was hired to replace Mr. Merritt in early

July 1996. On July 29, Mr. Woods gave Mrs. McClure written notice that cause

might exist for her dismissal and suspended her with pay. On August 7, the

Board directed Mr. Woods to give Mrs. McClure written notice of the reasons for

her possible dismissal and to notify her of her right to request a hearing. On

August 9, Mr. Woods sent the notification outlining the following reasons for

Mrs. McClure’s possible dismissal:

3
The record contains handwritten notes kept by the administrative secretary
for the District, Carmen Sanders, that chronicle the events leading up to this
lawsuit. These notes state that “people” resented the payments. See Aplt. App.,
vol. I at 261. The notes and other record evidence indicate that the conduct of
many of the participants in the underlying events was of the sort one would
expect from the students attending the schools rather than the adults administering
them.

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 1. School employees have smelled liquor on your breath during
school hours.

2. You have violated the School District’s no smoking policy by smoking
on school grounds during regular school hours.

3. You have allowed and accompanied teachers off of the school grounds
during regular school hours, when those teachers should have been
attending to duties during their planning periods, for you and the teachers
to smoke.

4. You have often left school grounds without permission.

5. The majority of teachers at the elementary school have lost confidence in
your administrative leadership.

6. You are frequently gone from the school and are unavailable for
assistance to your teachers in your building.

7. You manage employees in your building by intimidation and fear.

8. You have used vulgar language to your employees in front of other
employees.

9. You have personally brought liquor onto the school premises.

10. You belittle and humiliate subordinate employees.

11. You have improperly reviewed personnel files of School District
employees.

12. The Board of Education lacks confidence in your abilities as an
administrator.

Aplt. App., vol. I at 133-34. 4

4
The district court observed that allegations 1, 2, 5, 6, 10 and 12 were
supported by the testimony of live witnesses at Ms. McClure’s due process
hearing or by other evidence, and that Ms. McClure had admitted to allegation

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 Mrs. McClure requested a due process hearing, which was held on August

29, 1996. She was present and represented by counsel, who objected to the

participation of all five Board members due to bias and particularly to the

participation of Marion Stinson and Dennis Weston on the ground that they had

previously expressed a bias against Mrs. McClure. The attorney for the District,

Doug Mann, while stating his view that the Board had the right to serve as fact

finder, responded that members who were biased or who could not decide solely

on the evidence should disqualify themselves. No one did.

Mr. Mann sought to introduce affidavits from thirteen District employees

making various accusations against Mrs. McClure. Mrs. McClure’s attorney then

moved to have the affidavits barred on the ground that their admission denied her

the right to cross-examination. Mr. Mann responded that the affiants had refused

to appear in person and, because the Board had no subpoena power, he could not

force them to provide live testimony. Approximately half of the affiants were in

fact present at the hearing but did not testify. The affidavits in general made

broad, conclusory allegations stating that the affiants had smelled liquor on Mrs.

McClure’s breath at school on unspecified occasions, that she smoked cigarettes

9. As Mrs. McClure points out on appeal, however, the Board did not find
allegation 9 established by credible evidence. This allegation apparently was
based on an incident years prior to the hearing in which Mrs. McClure brought a
margarita to school locked in the trunk of her car and gave it directly to another
teacher after school hours, who placed it in her car trunk.

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in her office after 3:00 p.m. on school days and occasionally left school grounds

with other teachers to smoke elsewhere, that she used vulgar language in front of

school staff, and that her management style was one of fear and intimidation.

The Board presented three live witnesses, Cathy Bennett, Janet Morgan,

and Judy Buster. Ms. Bennett was a teacher who was supervised by Mrs.

McClure and whom Mrs. McClure had put on a plan of improvement in March

1996. She testified on direct examination that she had smelled liquor on Mrs.

McClure’s breath, that she had seen Mrs. McClure smoking during the school day

in her office several times, and that Mrs. McClure was difficult to contact about

school problems. On cross-examination Ms. Bennett became upset, left the stand,

and refused to answer any more questions. Janet Morgan also gave live

testimony. She is Cathy Bennett’s daughter and admitted that she was angry with

Mrs. McClure for putting her mother on a plan of improvement. The third live

witness, Judy Buster, was an elementary teacher who testified that she smelled

liquor on Mrs. McClure’s breath back in 1994-95, had seen her smoking in her

office, and had heard her use vulgar language. She also stated that Mrs. McClure

was intimidating and often away from the building. Mrs. McClure presented

testimony from several witnesses, all of whom were cross-examined.

The Board went into executive session and returned to vote unanimously to

dismiss Mrs. McClure immediately. She subsequently applied for employment in

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public school systems within an eighty mile radius of Salina, sending out fifty to

seventy resumes. After these attempts were unsuccessful, Mrs. McClure took

early retirement and filed this lawsuit.

The district court granted summary judgment for Mrs. McClure on her

claim that the due process hearing was rendered constitutionally inadequate by her

inability to confront and cross-examine the witnesses against her, and awarded her

both nominal and actual damages. The court also determined that Mrs. McClure

had presented a fact issue on her allegation that she was denied the right to an

impartial tribunal because two of the five Board members at her hearing were

biased against her, but then held this claim mooted by the holding in her favor on

the confrontation issue. Finally, the court held that the individual Board members

were entitled to qualified immunity and that Mrs. McClure had presented no

evidence to support an award of punitive damages against them in any event.

The District argues on appeal that the district court erred in holding as a

matter of law that a due process deprivation occurred when the District presented

affidavits at Mrs. McClure’s termination hearing from affiants whom Mrs.

McClure was not allowed to cross examine. The District also asserts that the

court erred in awarding Mrs. McClure more than nominal damages on her due

process claim despite evidence that she would have been terminated even if no

due process violation had occurred. Mrs. McClure cross-appeals, contending that

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the court erred in granting the two individual Board members qualified immunity

on her claim of bias and that she presented sufficient evidence to support an

award of punitive damages against them. In addition, Mrs. McClure objects to the

damages awarded, asserting that the court erred in giving her only nominal

damages for her mental pain and suffering and in calculating her compensatory

damages.

II

We review de novo the district court’s grant of a motion for summary

judgment, see Ben Ezra, Weinstein & Co., Inc. v. America Online, Inc., 206 F.3d

980, 984 (10th Cir. 2000), and its determination that an issue is moot, see

Anderson v. United States Dep’t of Health and Human Servs., 3 F.3d 1383, 1384

(10th Cir. 1993). We address each argument of the parties in turn.

A. Use of Affidavits

Defendants do not challenge on appeal the district court’s determination

that Mrs. McClure had a property interest in her job. They contend instead that

the use of affidavits did not deprive her of due process. We disagree.

The District presented live testimony from three witnesses and offered into

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evidence thirteen affidavits from witnesses who had refused to provide live

testimony and be subject to cross-examination. Although the hearing at issue was

a pretermination hearing, it was the only one provided to Mrs. McClure.

Consequently, our due process inquiry is governed by the requirements applied to

post-termination hearings. The District does not argue to the contrary.

This court has indicated in dicta that “[a] ‘full post-termination hearing’ is

understood to include the right to representation by an attorney and the right to

cross-examine adverse witnesses.” Workman v. Jordan, 32 F.3d 475, 480 (10th

Cir. 1994) (quoting Melton v. City of Oklahoma City, 928 F.2d 920, 939 (10th

Cir. 1991) (en banc) (Logan, J., dissenting)); see also Langley v. Adams County,

987 F.2d 1473, 1480 (10th Cir. 1993) (same). We have stated elsewhere that

“[w]hile not necessary in every case, procedural due process often requires

confrontation and cross-examination of those whose word deprives a person of his

livelihood.” West v. Grand County, 967 F.2d 362, 369 (10th Cir. 1992) (quoting

Walker v. United States, 744 F.2d 67, 70 (10th Cir. 1984)). 5 West observes that

“whether the Due Process Clause requires that the terminated employee be offered

5
The District contends that cases discussing the deprivation of one’s
livelihood are distinguishable because Mrs. McClure was only deprived of one
specific job. We disagree. Our cases use the term “livelihood” in the context of
employment termination identical in all relevant respects to that at issue here.
See, e.g., West v. Grand County, 967 F.2d 362, 369 (10th Cir. 1992); Melton v.
City of Okla. City, 879 F.2d 706, 721 (10th Cir. 1989); McGhee v. Draper, 564
F.2d 902, 911-12 (10th Cir. 1977).

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the right to cross-examine or confront witnesses depends upon the significance

and nature of the factual disputes at issue.” Id. See also Prebble v. Brodrick, 535

F.2d 605, 616 (10th Cir. 1976) (where information from persons not present at

hearing concerns an important issue in dispute, due process objection may well be

valid).

We have also held that charges depriving a plaintiff of her livelihood by

attacking her morality and fitness as a teacher are sufficiently serious to require

cross-examination. See McGhee v. Draper, 564 F.2d 902, 911 (10th Cir. 1977).

There we concluded that because the termination decision was based on

accusations that “might stain a reputation and threaten a livelihood,”

“confrontation and cross-examination were essentials of due process which should

not have been denied.” Id. at 911-12. In this case, as in McGhee, the termination

decision was based on charges that would stain the reputation of an elementary

school principal and threaten her livelihood. As the district court pointed out, “I

think we’ve got some morality questions here where we’re talking about either

drinking on the job or coming to school in an inebriated condition . . . which I

understand the plaintiff categorically denies.” Aplt. App., vol. II at 425. We

agree with the district court that these accusations, which the Board ostensibly

considered sufficiently serious to warrant dismissal, were likewise sufficiently

serious to warrant cross-examination.

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 Although the District argues that the district court’s conclusion is contrary

to controlling decisions of this court, the cases on which the District relies are

factually distinguishable. In West, for example, we recognized “the importance of

cross-examination in due process analysis” and cited cases in which termination

proceedings were held inadequate because the opportunity to confront and cross-

examine was denied, although we acknowledged that those rights were not

“universally applicable to all hearings.” West, 967 F.2d at 369. We did not

address whether the plaintiff should have been offered the right to cross-examine,

however, because the plaintiff had waived her right to complain when she did not

seek the attendance of the missing witness at the hearing and was not restricted

from doing so. See id. In Meder v. City of Okla. City, 869 F.2d 553, 555 (10th

Cir. 1989), abrogated on other grounds by American Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40 (1999), we concluded that the lack of cross-examination did

not result in a denial of due process because the plaintiff had admitted facts that

made cross-examination unnecessary. Finally, while we concluded in Rosewitz v.

Latting, 689 F.2d 175 (10th Cir. 1982), abrogated on other grounds by American

Mfrs., 526 U.S. 40, that denial of the right to cross-examination in the grievance

procedure at issue did not deprive the plaintiff of procedural due process, we did

not address the nature of the accusations against the plaintiff, or give them any

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weight in balancing the interests involved. 6 These cases are therefore of little

relevance to the facts before us now.

The District also asserts the district court erred by applying what the

District describes as a “bright line” rule under which any use of an affidavit in an

administrative due process hearing is a per se denial of procedural due process.

This characterization fails to take the relevant record into account. The court

commented upon its holding at a proceeding shortly thereafter, reviewing the

uncontroverted evidence and reiterating its conclusion that “where issues of

morality and/or professional ethics were involved as here in the allegations, . . .

procedural due process under the Fourteenth Amendment compelled the right of

cross-examination.” Aplt. App., vol. II at 454. The court thus made clear that its

ruling was based on the particular facts before it rather than on application of a

bright line rule. In any event, the uncontroverted evidence of the seriousness of

the charges and the risk of error, particularly under the circumstances existing at

the hearing itself, support the court’s conclusion that due process required cross-

examination here.

6
Unlike the present case, the defendant in Rosewitz provided its employees
with a five-step grievance procedure that offered several opportunities to present
a defense, to have a hearing before a grievance review board, and internal review
of the board’s decision through a personal interview. See Rosewitz, 689 F.2d at
176 & n.1. We pointed out that as a result, the risk of an erroneous deprivation
was not great. See id. at 177.

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 B. Procedural Due Process Damages

The district court held a bench trial on the issue of damages for the due

process violation and awarded Mrs. McClure lost wages and benefits for the

1996-97 school year. In so doing, the court stated that while admissible evidence

independent of the thirteen affidavits supported Mrs. McClure’s termination, it

was “speculative whether or not Plaintiff would have been terminated had that

cross-examination been permitted.” Aplt. App., vol. I at 399. The court denied

the District’s request to put on evidence through school board members that the

board would have reached the same decision even without the thirteen affidavits.

The court stated its belief that because Mrs. McClure had been denied the

opportunity to develop her defense through cross-examination, there was no way

of knowing what the outcome would have been and the evidence was therefore

irrelevant. We review the district court’s legal conclusions de novo and its

findings of fact for clear error. See Naimie v. Cytozyme Lab., Inc., 174 F.3d

1104, 1109 (10th Cir. 1999).

On appeal the District argues the court erred in awarding compensatory

relief absent a showing by Mrs. McClure that her damages were caused by the due

process violation, citing Carey v. Piphus, 435 U.S. 247 (1978). The District also

asserts the court erred in refusing to admit the testimony from board members that

they would have decided to terminate Mrs. McClure in any event. Finally the

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District contends that because there was evidence tending to show it would have

terminated Mrs. McClure following a proper hearing, the matter should be

remanded for an award of nominal damages only.

Our consideration of these arguments is guided by Carey and its progeny.

In Carey, the Supreme Court held that when a procedural due process violation

occurs and adverse action results, damages for injuries caused by the adverse

action may not be recovered if the defendant can prove the action would have

been taken even absent the violation. See id. at 260 (“in such a case, the failure

to accord procedural due process could not properly be viewed as the cause of the

[adverse action]”). The Court cited Mt. Healthy City Sch. Dist. v. Doyle, 429

U.S. 274, 285-87 (1977), and Village of Arlington Heights v. Metropolitan Hous.

Dev. Corp., 429 U.S. 252, 270-71 & n.21 (1977), in support of this proposition.

Mt. Healthy and Village of Arlington Heights make clear that once a plaintiff

establishes a constitutional violation, the burden shifts to the defendant to show

by a preponderance of the evidence that it would have reached the same result

absent the violation. See Mt. Healthy, 429 U.S. at 285-87 (once plaintiff shows

infringement of constitutional right, defendant must “show[] by a preponderance

of the evidence that it would have reached the same decision . . . even in the

absence of the [constitutional violation]”); Village of Arlington Heights, 429 U.S.

at 271 n.21 (proof of constitutional violation shifts to defendant the “burden of

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establishing that the same decision would have resulted even had [the

constitutional violation not occurred]”). Accordingly, the District is incorrect in

arguing that Mrs. McClure bears the burden of proving that her damages resulted

from the District’s unconstitutional conduct. To the contrary, to avoid liability

for the damages resulting from its denial of Mrs. McClure’s constitutional right to

due process, the District must establish, by a preponderance of the evidence, that

it would have reached the same termination decision in any event. Unless the

defendant carries that burden, the plaintiff is entitled to recover damages for the

injury caused by the defendant’s adverse action. See Carey, 435 U.S. at 259

(“Procedural due process rules are meant to protect persons not from the

deprivation, but from the mistaken or unjustified deprivation of life, liberty, or

property.”); see also, e.g., Dill v. City of Edmond, 155 F.3d 1193, 1209 (10th Cir.

1998) (plaintiff entitled to compensatory damages for adverse action when

defendant failed to establish adverse action would have occurred even if due

process had been provided).

We agree with the District, however, that the district court erred in refusing

to consider the District’s evidence that the school board would have made the

same decision even in the absence of the constitutional violation. Because the

Supreme Court has held it is the defendant’s burden to make this showing in order

to avoid liability for compensatory damages, the District is entitled to present

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evidence relevant to satisfying that burden. In Carey the plaintiffs adopted the

same position taken by the district court here and argued that injury should be

presumed because it could never be known what result the constitutionally correct

proceeding would have produced. See Carey, 435 U.S. at 261 n.16. The Court

rejected this argument and we must do so as well. We remand the issue of

damages for the denial of Mrs. McClure’s procedural due process rights in order

to provide the District the opportunity to establish by a preponderance of the

evidence that it would have reached the same decision had the constitutional

violation not occurred.

In her cross-appeal, Mrs. McClure contends the district court erred in

failing to award her damages for emotional distress. The court’s refusal to do so

was based on its finding that these damages were caused by her termination rather

than by the deprivation of her right to confront and cross-examine the witnesses

against her at the termination hearing. In a proper case, however, a plaintiff may

recover such damages by “producing evidence that mental and emotional distress

actually was caused by the denial of procedural due process itself.” Id. at 263.

Upon review of the record, we agree with the district court that Mrs. McClure has

not shown her mental damages were caused by the due process deprivation rather

than her termination.

Mrs. McClure may nonetheless be entitled to emotional distress damages if,

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on remand, the District fails to show by a preponderance of the evidence that it

would have terminated her employment even absent the violation of her

confrontational rights. See Dill, 155 F.3d at 1209. In that event, as discussed

above, Mrs. McClure will be entitled to all the compensatory damages flowing

from her termination because her termination will have directly resulted from the

denial of due process.

Mrs. McClure also argues that the district court erred in limiting her

compensatory damages to the 1996-97 school year on the ground that she had

failed to mitigate her damages. “Unquestionably, wrongfully discharged

claimants have an obligation to use reasonable efforts to mitigate their damages.”

EEOC v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980). “A claimant is

required to make only reasonable exertions to mitigate damages, [however,] and is

not held to the highest standards of diligence. It does not compel him to be

successful in mitigation. It requires only an honest good faith effort.” Id.

(citations omitted).

The employer bears the burden of showing that the employee did not

exercise reasonable efforts to mitigate damages. See id. To satisfy its burden,

“the [employer] must establish (1) that the damage suffered by plaintiff could

have been avoided, i.e. that there were suitable positions available which plaintiff

could have discovered and for which he was qualified; and (2) that plaintiff failed

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to use reasonable care and diligence in seeking such a position.” Id. Our review

of the record convinces us that the district court erred under the above standards

in finding that Mrs. McClure had not mitigated her damages.

Mrs. McClure presented undisputed evidence that she sent out fifty to

seventy applications seeking employment with every school district in a sixty to

ninety mile radius. 7 She was never called for an interview and received no

feedback. The only response she did receive was a verbal one from an

administrator who said he could not take a chance on her with the kind of cloud

she had hanging over her head. Although the district court faulted Mrs. McClure

for failing to specifically seek a teaching position in special education when

special education teachers were in high demand, her resume clearly indicated her

qualifications in that area. Moreover, Superintendent Woods testified on behalf

of the District that he did not want to rehire Mrs. McClure and equivocated when

asked whether he would hire a special education teacher subject to the accusations

he had made against her. In sum, the District has not established that positions

were available to Mrs. McClure in her circumstances, nor has the District shown

that she did not use reasonable diligence in her efforts to find work. Accordingly,

we hold the district court erred in determining that she failed to mitigate her

7
Her husband was employed as a school superintendent in a neighboring
district and she therefore sought a position within driving range.

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damages.

C. Biased Tribunal

The district court held that Mrs. McClure had created a fact issue as to

whether two members of the school board, Mr. Stinson and Mr. Weston, were

impermissibly biased against her, thus denying her the procedural due process

right to an impartial tribunal. The District does not challenge this ruling on

appeal. The district court further held this claim was mooted by the grant of

summary judgment for Mrs. McClure on her allegation that she was denied her

right to confront and cross-examine the witnesses against her.

In light of our treatment of the confrontation issue, we conclude the biased-

tribunal claim is no longer moot. We held in Part II B above that, while the court

properly granted summary judgment for Mrs. McClure on her confrontation claim,

the court erred with respect to that claim in denying the District an opportunity to

establish it would have reached the same result absent the deprivation of Mrs.

McClure’s confrontational rights. If the District is successful on remand in

bearing this burden and avoiding liability for compensatory damages on this

claim, Mrs. McClure may persuade the fact finder that she was denied her right to

an unbiased tribunal and is therefore entitled to compensatory damages on the

latter claim. We therefore remand for further proceedings on both claims.

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 D. Qualified Immunity

We turn to the district court’s grant of qualified immunity to the individual

defendants. “‘[G]overnment officials performing discretionary functions,

generally are shielded from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Hicks v. City of Watonga, 942 F.2d 737,

749 (10th Cir. 1991) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

The district court summarily granted Board members Stinson and Weston

qualified immunity on Mrs. McClure’s claim that their participation in the

termination decision deprived her of the right to an impartial tribunal. In support

of that claim, Mrs. McClure presented evidence that those defendants had

expressed their determination to remove her from her position prior to the

termination hearing. The record contains an affidavit by Tom Merritt, the District

Superintendent who resigned in May 1996, stating that Board member Stinson

told Mr. Merritt in the spring of 1996 that he wanted Mrs. McClure gone and that

he had enough proof to “fire her on the spot.” Aplt. App., vol. I at 243. The

affidavit also states that Board member Weston said in the spring of 1996 in Mr.

Merritt’s presence that he wanted Mrs. McClure gone and would pay a large

amount of money to “get rid of her.” Id. at 244. Mrs. McClure argues on appeal

that the court erred in granting summary judgment on the qualified immunity

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issue. We agree.

It is clear that at the time the hearing took place in 1996, procedural due

process required an impartial tribunal:

The Due Process Clause entitles a person to an impartial and
disinterested tribunal . . . . This requirement of neutrality in
adjudicative proceedings safeguards the two central concerns of
procedural due process, the prevention of unjustified or mistaken
deprivations and the promotion of participation and dialogue by
affected individuals in the decisionmaking process. The neutrality
requirement helps to guarantee that life, liberty, or property will not
be taken on the basis of an erroneous or distorted conception of the
facts or the law. At the same time, it preserves both the appearance
and reality of fairness, generating the feeling, so important to a
popular government, that justice has been done, by ensuring that no
person will be deprived of his interests in the absence of a
proceeding in which he may present his case with assurance that the
arbiter is not predisposed to find against him.

Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (citations and internal

quotations omitted).

It was equally clearly established in 1996 that statements such as those

allegedly made by the individual defendants here are evidence of a biased

tribunal. In Staton v. Mayes, 552 F.2d 908 (10th Cir. 1977), we held that

“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. We

further addressed the elements of an unbiased tribunal in Hicks and reiterated our

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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. 942 F.2d at 746-48.

Although the District concedes on appeal that Ms. McClure raised a fact

issue on the biased tribunal claim, the District and the individual defendants argue

that qualified immunity was properly granted because the statements upon which

that claim is based are not sufficient to show the bias required to state a claim for

relief. Defendants’ argument is both inconsistent with their concession and

legally incorrect. As we pointed out in Staton, statements like those alleged here

are not mere opinions on policy issues related to the dispute, nor are they simply

reiterations of charges made during an investigatory stage. See Staton, 552 F.2d

at 914. Rather, they reveal decisionmakers who publicly stated their intent to

terminate Mrs. McClure’s employment prior to the hearing at which the matter of

her termination was to be decided. “[A] due process principle is bent too far

when such persons are then called on to sit as fact finders and to make a decision

affecting the property interests and liberty interests of one’s reputation and

standing in his profession.” Id. at 915. Accordingly, we conclude that the

statements attributed to Board members Stinson and Weston raise a genuine issue

of material fact as to whether they were biased when they sat on the tribunal

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which voted to terminate Mrs. McClure’s employment. 8 As noted above, “[t]he

law is clearly established that a person who is biased in fact may not sit on a

quasi-judicial tribunal.” Hicks, 942 F.2d at 751. We therefore reverse the grant

of summary judgment on the claim of qualified immunity. 9

III

In sum, we affirm the district court’s ruling that Mrs. McClure was

deprived of her constitutional right to confront and cross-examine the witnesses

against her by the use of affidavits at her termination hearing. We remand for

further proceedings on this claim to allow the District the opportunity to establish

8
We note that the presence of even one biased member on a tribunal is
sufficient to deprive a plaintiff of procedural due process. “Litigants are entitled
to an impartial tribunal whether it consists of one man or twenty and there is no
way which we know of whereby the influence of one upon the others can be
quantitatively measured.” Hicks, 942 F.2d at 748 (quoting Cinderella Career &
Finishing Sch., Inc. v. F.T.C., 425 F.2d 583, 592 (D.C. Cir. 1970)).
9
Alternatively, the district court summarily held that even if the claims
against Board members Stinson and Weston were to go to a fact finder, the record
contained no evidence that they acted with malice in voting to terminate Mrs.
McClure and she therefore could not obtain punitive damages from them. In view
of the summary treatment of the issue by the district court below, the parties’
failure on appeal to address the evidence with respect to punitive damages, and
our conclusion that the matter must be remanded for further proceedings on Mrs.
McClure’s claims against both the District and the individual defendants, any
ruling on the matter at this stage of the litigation would be premature. We
therefore leave the issue of punitive damages open for further proceedings on
remand.

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by a preponderance of the evidence that it would have terminated Mrs. McClure

after a constitutionally proper hearing. If the District is successful, Mrs. McClure

will not be entitled to damages flowing from the termination itself. If the District

does not satisfy its burden, it will be liable for compensatory damages resulting

from its decision to terminate Mrs. McClure, including those resulting from her

emotional distress. We reverse the district court’s ruling that Mrs. McClure failed

to mitigate her damages.

We conclude that the issue of a biased tribunal is no longer moot and we

remand for further proceedings on this claim as well. We also hold that Mrs.

McClure raised a genuine issue of material fact on her claim that she was denied

her due process right to an impartial tribunal by the participation of Board

members Stinson and Weston in the decision to terminate her employment. We

therefore reverse the grant of qualified immunity to the individual defendants on

this claim.

AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings.

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