Hulen v. Yates

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 4 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

MYRON HULEN, individually,

Plaintiff - Appellee,

v.

ALBERT YATES, President; DANIEL
D. COSTELLO, Dean of the College No. 01-1530
of Business, and other co-conspirators
whose identities are presently
unknown,

Defendants - Appellants.

and

LOREN CRABTREE, Provost,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 98-B-2170)

Jay S. Jester, Miller & Jester, L.L.C., Denver, Colorado, for Plaintiff - Appellee.

Cathy Havener Greer (Pamela Skelton and L. Michael Brooks, Jr., with her on the
briefs), Wells, Anderson & Race, L.L.C., Denver, Colorado, for Defendants -
Appellants.

Before KELLY, McKAY, and HARTZ, Circuit Judges.
PER CURIAM.

Defendants-Appellants, two state university officials, appeal from the

district court’s denial of qualified immunity. We have jurisdiction over this

interlocutory appeal under the qualification of the final judgment rule of 28

U.S.C. § 1291 announced in Mitchell v. Forsyth, 472 U.S. 511 (1985), and we

affirm in part and reverse in part.

Background

The following facts are drawn from the complaint and summary judgment

materials. Plaintiff-Appellee Myron Hulen is a tenured faculty member at

Colorado State University (“CSU”). He was appointed as an assistant professor

in the Department of Accounting and Taxation (now the Accounting Department)

in 1989. His field is taxation. Beginning in 1995, Dr. Hulen cooperated with

other members of the Accounting Department in seeking to revoke the tenure of a

colleague (Dr. William Mister) on grounds of plagiarism and copyright violations,

emotional abuse of students, abuse and harassment of staff, misuse of state funds,

receipt of kickbacks from a publisher in return for adopting textbooks, and other

charges. Administrators at CSU allegedly threatened Dr. Hulen and other

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Accounting Department faculty members pursuing the charges against Dr. Mister.

The alleged threats were delivered by then-Accounting Department Chair Michael

Moore, who advised that his message was from the CSU Administration. Several

adverse actions were threatened unless the charges against Dr. Mister were

dropped, including termination of the Masters of Accounting (M.S.) degree

program, assignment of the professors to teach courses outside their areas of

expertise, transfer of the professors to other departments, and eventual

termination of the professors due to overstaffing if the graduate program were

eliminated.

Ultimately, a special university committee recommended that Dr. Mister’s

tenure be retained, but it did so without considering evidence beyond the initial

charges and without interviewing those Accounting Department professors

substantiating the charges. Unable to achieve harmony in the Accounting

Department, and “determined not to live Professor Mister’s nightmare,” Dr.

Moore resigned as chair and later left CSU. Aplt. App. 564. In July 1996, Dr.

Costello became the Dean of the College of Business, and, after learning of the

more than six years of divisiveness and dysfunction within the Accounting and

Taxation Department, he proposed transferring three of four tax faculty out of the

Department and changing the name to the Accounting Department. In the summer

of 1997, Dr. Hulen was transferred involuntarily from the Accounting Department

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into the Management Department, 1 Aplt. App. 262, in which he is not, he claims,

qualified to teach any courses and thereby resulting in a diminished ability to

attract research funds, publish scholarship, receive salary increases, teach summer

tax classes, and obtain reimbursement for professional dues and journal

subscriptions. Aplt. App. 471-72. As we discuss in depth later, Dr. Hulen aired

his professional concerns about being removed from the Accounting Department

to Dean Costello several times before he was transferred. Aplt. App. 242, 243,

244-46. Dr. Hulen contends that he was notified in May 1998 that could only

teach two classes, both in tax, in the Accounting Department in any given year.

Aplt. App. 471. He further contends that adjunct staff and temporary faculty have

been hired to teach the courses he normally teaches. Aplt. Br. tab E at 8, ¶ 24.

In response to the transfer, Dr. Hulen filed two grievances. At CSU, a

“Class A” grievance involves the assertion of impairment of a constitutional right

that requires due process. Aplt. App. 195. The burden of proof with a Class A

grievance is on the CSU administrator initiating the challenged decision. Id. A

“Class B” grievance involves a term or condition of employment not covered by

the Class A category, and the burden of proof is on the grievant. Id. In his first

grievance, Dr. Hulen claimed that he should have been provided a pre-deprivation

1
Three of the other Accounting Department members who sought the
revocation of Dr. Mister’s tenure were transferred to three different departments
within the College of Business.

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hearing before being transferred to the Management Department. Aplt. App. 472,

¶ 23. The grievance committee concluded that the grievance was a Class B

grievance and Dr. Hulen was not entitled to a pre-deprivation hearing. Aplt. App.

95, 533. Dr. Hulen’s second grievance claimed that his involuntary transfer

deprived him of a property interest and was in retaliation for constitutionally

protected free speech. Aplt. App. 472, ¶ 24. The grievance committee ruled that

the grievance was a Class B grievance, acknowledged that there was an inference

of punitive motivation, but decided that Dean Costello “had reason to act

independently of possible retaliatory motives.” Aplt. App. 543-44. Apparently

rejecting the First Amendment claim, the committee determined that the transfer

was not in accordance with the CSU Faculty Manual (“Faculty Manual”) which

requires mutual agreement for such a transfer. In determining that Dean

Costello’s action “was unfair, unreasonable and discriminatory,” the committee

noted that “it removes Dr. Hulen from fundamental faculty rights enjoyed by

faculty who remain in the Department of Accounting.” Aplt. App. 544.

The grievance committee’s decision was reviewed by Provost Loren

Crabtree, who decided that, while the grievance was properly classified as Class

B, the decision of the grievance committee was unreasonable. Aplt. App. 95-103.

CSU President Albert Yates accepted the decision of the provost upon appeal by

Dr. Hulen. Aplt. App. 559-61. Dr. Hulen then appealed to the State Board of

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Agriculture (the governing body of CSU) which upheld Dr. Yates’ decision.

Dr. Hulen filed suit under 42 U.S.C. § 1983 in 1998 against the State Board

of Agriculture, CSU, President Yates, Provost Crabtree, and Dean Costello

alleging that his transfer to the Management Department was in retaliation for his

“whistle blowing” and public allegations against Dr. Mister and that the transfer

deprived him of a property interest (an appointment in the Accounting

Department) without due process. He sought damages and injunctive relief. On

March 14, 2000, the district court dismissed Dr. Hulen’s suit against CSU and the

State Board of Agriculture on both Eleventh Amendment immunity and § 1983

interpretive grounds, holding that neither the University nor the Board are

“person[s]” under § 1983.

Dr. Hulen’s First and Fourteenth Amendment claims against the three

remaining defendants (President Yates, Provost Crabtree, and Dean Costello) in

both their official and individual capacities were the subject of a subsequent order

by the district court on October 12, 2001. That order is the subject of this appeal.

As to Dr. Hulen’s First Amendment claims, the court ruled that (1) the claims

against President Yates and Dean Costello in their official capacities may proceed

to trial but that no monetary damages may be awarded based upon Ex Parte

Young, 209 U.S. 123 (1908), (2) the claim against President Yates in his

individual capacity may proceed to trial but that no monetary damages may be

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awarded based upon quasi-judicial immunity, and (3) the claim against

Dean Costello in his individual capacity may proceed to trial, rejecting Dean

Costello’s assertion of qualified immunity. The court also (4) dismissed both the

official capacity and individual capacity claims against Provost Crabtree for lack

of personal participation. As to the Fourteenth Amendment claims against the

individual Defendants in their official capacities, the court granted summary

judgment for Dr. Hulen against all three individual Defendants but ruled that no

monetary damages may be awarded, again based upon Ex Parte Young. Finally,

the court also granted summary judgment for Dr. Hulen against all three

individual Defendants in their individual capacities on the Fourteenth Amendment

claims. The court rejected Dean Costello’s assertion of qualified immunity, but

the court ruled that no monetary damages may be sought against President Yates

or Provost Crabtree based on quasi-judicial immunity.

On appeal, President Yates and Dean Costello argue the following

regarding qualified immunity on Dr. Hulen’s claim of First Amendment

retaliatory transfer for speech on a matter of public concern: (1) there was no

constitutional violation because (a) the alleged speech was not on a matter of

public concern, (b) their interests as administrators outweigh any marginally

protected speech of Dr. Hulen, (2) the law was not clearly established in the

necessary, particularized sense. They also argue that (3) Dr. Hulen cannot show

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any personal participation by these Defendants in the alleged retaliatory transfer

because of his motivation.

On the issue of qualified immunity for a Fourteenth Amendment

deprivation of a property interest, they argue that (1) there was no constitutional

violation because (a) Dr. Hulen does not process a valid property interest in a

departmental assignment, (b) Dr. Hulen received all process which is due, (2)

Dean Costello was entitled to qualified immunity because the law was not clearly

established. Even assuming that Dr. Hulen had established a claim of

constitutional proportions against Dean Costello, they argue that the district court

erred in determining that there is no issue of fact concerning Dean Costello and

this claim.

Discussion

A. Jurisdiction over Interlocutory Appeal of Denial of Qualified Immunity

Defendants Yates and Costello seek review of the district court’s denial of

their motions for summary judgment on grounds of qualified immunity. Despite

the “final judgment rule” of 28 U.S.C. § 1291, the federal courts of appeal have

jurisdiction, under certain conditions, to hear an interlocutory appeal of a denial

of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (“[A]

district court’s denial of a claim of qualified immunity, to the extent that it turns

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on an issue of law, is an appealable ‘final decision’ within the meaning of 28

U.S.C. § 1291 notwithstanding the absence of a final judgment.”); Bass v.

Richards, 308 F.3d 1081, 1086 (10th Cir. 2002) (“[D]enial of a summary

judgment motion . . . is subject to appeal . . . when the defendants are public

officials asserting a qualified immunity defense and the appealed issue is whether

a given set of facts establishes that defendants violated clearly established law.”)

(citation omitted). An important restriction on the jurisdiction of the appellate

courts over interlocutory appeals of denials of qualified immunity is that review is

limited to matters of law and may not turn on questions of evidentiary sufficiency.

See Johnson v. Jones, 515 U.S. 304, 313-18 (1995). Although qualified immunity

is separate from the merits of the action under the collateral order doctrine, “a

reviewing court must consider the plaintiff’s factual allegations in resolving the

immunity issue.” Johnson v. Fankell, 520 U.S. 911, 917 n.5 (1997).

The Mitchell rule governing appellate jurisdiction over interlocutory

appeals of denials of qualified immunity is complicated in this case by (1) the

district court’s entry of summary judgment in favor of the Plaintiff, Dr. Hulen, on

his due process claims, and (2) the particular grounds raised by these Defendants

in support of qualified immunity at the district court. As a result of the first

circumstance, Dr. Hulen has filed a motion to dismiss those aspects of the appeal

for lack of jurisdiction on the grounds that the qualified immunity issue is moot.

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According to Dr. Hulen, the individual Defendants will not stand trial on the due

process claim regardless of the outcome of this appeal, and an aspect of the

underlying justification for the Mitchell rule is avoiding litigation. See Mitchell,

472 U.S. at 525-27. Thus, the argument is that the present appeal should be

dismissed insofar as it calls for review of qualified immunity on the due process

claim.

We are not persuaded. The entry of summary judgment in favor of Dr.

Hulen on the due process claim does not preclude this court from examining the

district court’s rulings denying qualified immunity. After all, a reversal would

result in the two individual Defendants obtaining relief (immunity from suit) on

the damages claims without further proceedings. We limit this appeal, then, to

the denials of qualified immunity to President Yates and Dean Costello on Dr.

Hulen’s Fourteenth Amendment claims against them in their individual capacities,

and the denial of qualified immunity to Dean Costello on Dr. Hulen’s First

Amendment claims against Dean Costello in his individual capacity. 2 President

Yates sought qualified immunity only on the factual grounds that he did not

personally participate in any First Amendment deprivation, Aplt. App. 606-07,

Whether due to a fault in the pleadings or in the court’s analysis of
2

qualified immunity, the district court’s order also denies qualified immunity to
Costello in his official capacity. Aplt. Br. tab A at 29. Qualified immunity, of
course, only insulates defendants sued under § 1983 in their individual capacities.

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and the district court denied qualified immunity to him on this basis, Aplt. Br. tab

A at 23-24; absent very unusual circumstances we do not consider qualified

immunity arguments on appeal that an individual defendant neither presented to,

nor on which he obtained a ruling from, the district court. Garrett v. Stratman,

254 F.3d 946, 956 (10th Cir. 2001).

We recognize that the district court granted President Yates quasi-judicial

immunity for claims against him in his individual capacity, but such immunity

insulates him only from monetary damages and not from the burden of litigation

on the due process claim, as would a grant of qualified immunity. See Mitchell,

472 U.S. at 526-27. Adjudicating only the appeal from the denials of qualified

immunity on the grounds relied upon by the district court simplifies our task in

this appeal and allows for a later appeal of other issues if necessary.

B. Qualified Immunity

Government officials who perform discretionary government functions are

entitled to qualified immunity from civil damages, provided their conduct does

not violate clearly established rights of which a reasonable government official

would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We review

the denial of a summary judgment motion raising a qualified immunity defense de

novo. See Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). When a

defendant raises the defense of qualified immunity, a plaintiff must establish that

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the defendant’s conduct violated a federal constitutional or statutory right and that

the right was clearly established at the time of the conduct. Saucier v. Katz, 533

U.S. 194, 201 (2001); Siegert v. Gilley, 500 U.S. 226, 232 (1991).

1. First Amendment Claim

Mr. Hulen’s First Amendment claim rests on the assertion that state actors

may not “condition public employment on a basis that infringes the employee’s

constitutionally protected interest in freedom of expression,” Connick v. Myers,

461 U.S. 138, 142 (1983), and “cannot retaliate against an employee for

exercising his constitutionally protected right of free speech.” Dill v. City of

Edmond, 155 F.3d 1193, 1201 (10th Cir. 1998). In evaluating this type of claim,

it is essential to identify the speech which resulted in the alleged retaliation.

Here, we read Dr. Hulen’s complaint as encompassing his speech in support of

administrative revocation of tenure of Dr. Mister and his speech refusing to

withdraw his support for such an investigation despite the university’s opposition.

Aplt. Br. tab E at 8, ¶¶ 29, 30.

A four-part test for evaluating a constitutional claim for First Amendment

retaliation derives from Connick, 461 U.S. at 147, Mt. Healthy City Sch. Dist.

Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977), and Pickering v. Bd. of Educ.,

391 U.S. 563 (1968) . The first step is to determine whether the speech is

protected, i.e., on a matter of public concern. If so, the second step is to balance

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the employee’s interest in commenting on matters of public concern against the

government employer’s interest in promoting efficient government services. If

that balance is struck in favor of the employee’s interest, the third step requires

the employee to demonstrate that his speech was a substantial or motivating

factor in the adverse employment action. If the employee so demonstrates, the

fourth step considers whether the government employer has proven that it would

have taken the same adverse employment action, even in the absence of the

protected speech. See Dill, 155 F.3d at 1201-1202 (stating four-part test). “The

first two steps are legal questions which the court resolves to determine whether

the speech is constitutionally protected. The second two steps concern causation

and involve questions of fact.” Id. at 1202 (citation omitted).

“Speech which discloses any evidence of corruption, impropriety, or other

malfeasance on the part of [state] officials, in terms of content, clearly concerns

matters of public import.” Conaway v. Smith, 853 F.2d 789, 796 (10 th Cir.

1988). In deciding whether an employee’s speech touches on a matter of public

concern, or constitutes a personal grievance, courts look at the “content, form and

context of a given statement, as revealed by the whole record.” Connick, 461

U.S. at 147-48. They also consider the motive of the speaker–was the speech

“calculated to redress personal grievances or [did it have] a broader public

purpose[?]”). Gardetto v. Mason, 100 F.3d 803, 812 (10th Cir. 1996). Here, Dr.

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Hulen attempted to bring his concerns about Dr. Mister to the CSU

Administration, and stated in response to threats that if the charges were

withdrawn, he would personally refile them. Aplt. App. 467-469, ¶¶ 6, 10. He

wrote memos to the provost about the lack of investigation that generated the

recommendation that Dr. Mister’s tenure not be revoked and requested an

investigation of the alleged threats made against the Accounting Department

professors. Aplt. App. at 509-511; 525-28 (“Yet the very cornerstone of our

profession of accounting involves ethical behavior and integrity. We cannot

successfully teach ethics if it is not practiced at CSU.”). The speech in this case

fairly relates to charges at a pubic university that plainly would be of interest to

the public, e.g., plagiarism and copyright violations, emotional abuse of students,

abuse and harassment of staff, misuse of state funds, receipt of kickbacks from a

publisher in return for adopting textbooks, and a claimed inadequate investigation

of the allegations and alleged retaliation against those who made the allegations.

See Maples v. Martin, 858 F.2d 1546, 1553 (11th Cir. 1988) (“[T]eachers whose

speech directly affects the public’s perception of the quality of education in a

given academic system find their speech protected [under the First

Amendment].”).

Dean Costello contends that Dr. Hulen merely sought to establish internal

harmony in the Accounting and Taxation Department by his speech, not bring to

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light governmental wrongdoing. Aplt. Br. at 23 (citing Aplt. App. at 335-36).

Of course, speech relating to an internal department dispute will normally be

classified as a personal grievance outside of public concern. Connick, 461 U.S.

at 147; Finn v. New Mexico, 249 F.3d 1241, 1247 (10th Cir. 2001) (speech

pertaining to internal personnel disputes and working conditions is not speech on

a matter of public concern). Dr. Hulen testified on deposition that while he knew

that filing tenure revocation charges against Dr. Mister would be divisive in the

short run, in the long run it would lead to greater harmony in the Department

because most of the problems were attributable to that issue. Aplt. App. at 335-

36. The fact that Dr. Hulen might receive an incidental benefit of what he

perceived as improved working conditions does not transform his speech into

purely personal grievances. Moreover, speech which touches on matters of

public concern does not lose protection merely because some personal concerns

are included. Connick, 461 U.S. at 149 (“Because one of the questions in Myers’

survey touched upon a matter of public concern and contributed to her discharge,

we must determine whether Connick was justified in discharging Myers.”); Finn,

249 F.3d at 1248. We conclude that Dr. Hulen’s speech relates to matters of

public concern.

As to the second step, we balance Dr. Hulen’s right to speak out about this

matter with whether exercise of that right “impairs discipline by superiors or

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harmony among co-workers, has a detrimental impact on close working

relationships for which personal loyalty and confidence are necessary, or impedes

the performance of the speaker’s duties or interferes with the regular operation of

the enterprise.” Rankin v. McPherson, 483 U.S. 378, 388 (1987). In this

context, we also acknowledge the “freedom of a university to make its own

judgments as to education,” Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265,

312 (1978) (Powell, J., concurring), including who may teach what subjects,

Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring

in result). See also Miles v. Denver Pub. Schs., 944 F.2d 773, 778-79 (10th Cir.

1991).

Defendants consistently have argued that this case is controlled by the

four-part analysis discussed above. Aplt. Br. at 22 (citing Lybrook v. Members

of Farmington Mun. Schs. Bd. of Educ., 232 F.3d 1334, 1338-39 (10th Cir.

2000)). For the balance to be struck in favor of the governmental employer, there

must be some evidence of actual disruption. Finn, 249 F.3d at 1249. Although a

governmental employer may sometimes rely upon predictions of disruption

supported by evidence, that does not apply here because the challenged action

came several months after the protected speech. See Kent v. Martin, 252 F.3d

1141, 1145-46 (10th Cir. 2001) (“That legal standard is inapplicable when an

employer has allowed an employee to continue to work after the protected

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expression.”).

Here, we are reminded that Dean Costello was not associated with CSU

until July 1996, well after some of the speech in this case and that the allegations

against Dr. Mister had been resolved previously, at least from the perspective of

some. Dean Costello urges that CSU’s interest in carrying out its public business

outweighs Dr. Hulen’s marginally protected speech. Aplt. Br. at 24.

We reject the characterization that Dr. Hulen’s speech is marginally

protected. The allegations, if substantiated, raise serious issues about the

Accounting Department, College of Business and CSU, not only with respect to

their relationships with students, but also among faculty, staff, and the taxpaying

public. The allegations address a matter of public concern, not mere public

interest, because they involve charges of wrongdoing and malfeasance. Without

question, CSU has an interest in efficient operation of its Accounting

Department, and the control of factions that make governance of that department

difficult. At the same time, conflict is not unknown in the university setting

given the inherent autonomy of tenured professors and the academic freedom

they enjoy. See Sweezy, 354 U.S. at 250 (plurality opinion); id. at 262

(Frankfurter, J., concurring in result); American Ass’n of Univ. Professors, 1940

Statement of Principles on Academic Freedom and Tenure with 1970 Interpretive

Comments, available at http://www.aaup.org/statements/Redbook/1940stat.htm

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(last updated June 2002) . Regardless, at this point in the proceedings, the

evidence is far too general to link the actual disruption of the Accounting

Department to Dr. Hulen’s protected speech. See Finn, 249 F.3d at 1241.

Dean Costello also argues that “every expression of the reason for [Dean]

Costello’s transfer of [Dr.] Hulen in August 1997 involved an attempt to resolve

once and for all six years of divisiveness and dysfunction within the

Department.” Aplt. Br. at 23 (emphasis in original). We recognize that Dean

Costello testified that there were a variety of reasons (other than the content of

Dr. Hulen’s protected speech) for the transfer: (1) getting the Accounting

Department back on track after 8-9 years of divisiveness between the Accounting

faculty and the Tax and Law faculty, (2) getting the Department to focus on the

upcoming 150-hour requirement for accounting professionals, and (3) increasing

the productivity of the non-tenured faculty, and (4) and finding a suitable fit

between Dr. Hulen’s non-accounting and interdisciplinary Ph.D and the

Management Department. Aplt. App. at 106-07, 319, 320, 322. But these

justifications go more to causation, and the evidentiary sufficiency concerning

causation is not before us in this qualified immunity appeal.

Dean Costello next argues that the district court’s conclusion that “it has

been clearly established in this Circuit since 1988 that reports of dishonesty,

malfeasance, impropriety, and misconduct by public officials touch on matters of

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public concern and are, therefore, protected by the First Amendment,” Aplt. Br.

tab A at 28-29, is not sufficiently specific for qualified immunity purposes. Aplt.

Br. at 25. To defeat a claim of qualified immunity, “[t]he contours of the right

must be sufficiently clear that a reasonable official would understand that what he

is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). It

is well-established that retaliation in the form of an involuntary transfer for

protected speech is prohibited. Rutan v. Republican Party of Ill., 497 U.S. 62, 75

(1990) (“We therefore determine that promotions, transfers, and recalls after

layoffs based on political affiliation or support are an impermissible infringement

on the First Amendment rights of public employees.”); Schuler v. City of

Boulder, 189 F.3d 1304, 1310 (10th Cir. 1999) (involuntary transfer even with

same title and responsibilities was actionable); Dill, 155 F.3d 1204-05 (transfer

from detective position to patrol officer); Morfin v. Albuquerque Pub. Schs., 906

F.2d 1434, 1437 (10th Cir. 1990) (transfer to another school).

Finally, we do not resolve Defendants’ claims that Dr. Hulen cannot show

any personal participation by these Defendants in the alleged retaliatory transfer

because of his motivation. This is an issue of evidentiary sufficiency, over which

we lack jurisdiction in a qualified immunity interlocutory appeal. Aplt. Br. tab

A, at 23-24, 28 (discussing evidence of personal participation requiring a trial);

Johnson, 515 U.S. at 317.

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 2. Fourteenth Amendment Claim

Turning to Dr. Hulen’s Fourteenth Amendment claim, Dr. Hulen alleges

that he was deprived of a recognized property interest (an appointment in the

Accounting Department) without due process. Property interests “are created and

their dimensions are defined by existing rules or understandings that stem from an

independent source such as state law.” Bd. of Regents of State Colleges v. Roth,

408 U.S. 564, 577 (1972). Thus, constitutionally protected property interests are

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

understandings developed by state officials. See Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 538 (1985); Perry v. Sindermann, 408 U.S. 593, 601-03

(1972); Roth, 408 U.S. at 577-78; Anglemeyer v. Hamilton County Hosp., 58 F.3d

533, 536 (10th Cir. 1995).

The general rule is that “no protected property interest is implicated when

an employer reassigns or transfers an employee absent a specific statutory

provision or contract term to the contrary.” Anglemeyer, 58 F.3d at 539. The

general rule has been applied in cases involving the involuntary transfer of

tenured university professors from one department to another where no statute or

contract supported the claim of a protected property interest. See Huang v. Bd. of

Governors of the Univ. of N.C., 902 F.2d 1134, 1142 (4th Cir. 1990) (“[T]he

transfer of tenured professors from one department to another, without loss of

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rank or pay, does not implicate any property interest protected by the Due Process

Clause.”); Maples, 858 F.2d at 1551 (involuntary transfer of tenured professors

“is the sort of administrative decision that is left completely to the

administration’s discretion”); see also Kelleher v. Flawn, 761 F.2d 1079, 1087

(5th Cir. 1985) (graduate student had no property interest in specific teaching

duties prior to reassignment). As this case illustrates, the general rule is not

absolute if an employee can point to a specific contractual provision and

surrounding circumstances establishing a property interest.

a. Property Interest

The district court determined that Dr. Hulen possessed a property interest in

his position as a tenured professor of the Accounting Department based upon

contract, confirmed by CSU’s customs and practices. Aplt. Br., tab A at 9. Dr.

Hulen first was offered an appointment as an assistant professor by the

Department of Accounting and Taxation and was so appointed. Aplt. App. 32-33.

He was awarded tenure and promoted to associate professor of the same

department. Aplt. App. 35. With that predicate, the provision suggesting a

property interest in this case is found in the Faculty Manual, which all parties

concede has contractual force. Aplt. Br., tab A at 9. The first pertinent provision

is:

The conditions and expectations of every appointment shall be
confirmed in writing. Any subsequent modifications of the

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 appointment shall also be confirmed in writing after the faculty
member and the administrator have mutually determined the new
conditions. The faculty member shall receive a copy of these
documents.

Aplt. App. 169 (§ E.6.a). Carrying forward the notion that mutual consent will

accompany most appointment modifications is the following provision related to

tenure:

Acquisition of tenure carries certain privileges; nevertheless, by
mutual agreement between a faculty member and the appropriate
administrative officers, the salary and/or employment status of a
faculty member may be altered. Any change in salary or employment
status of a faculty member which does not rest upon mutual
agreement with the administration shall be susceptible to test by
appropriate due process procedures as outlined in Section K.

Aplt. App. 175 (§ E.9.6.b). While it is true that procedural protections alone do

not create a property interest, see Kingsford v. Salt Lake City Sch. Dist., 247 F.3d

1123, 1129 (10th Cir. 2001); Asbill v. Hous. Auth., 726 F.2d 1499, 1502 (10th

Cir. 1984) ( “[P]rocedural protections alone do not create a protected property

right in future employment; such a right attaches only when there are substantive

restrictions on the employer’s discretion.”), the provisions of the Faculty Manual

go beyond mere procedural protections. The Faculty Manual provides for

property interests in tenured appointments to the CSU faculty and also changes in

“employment status.” Changes to such appointments are given protection by

requiring either mutual consent or due process given the provisions limiting the

discretion of the Administration.

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 In Hennigh v. City of Shawnee, 155 F.3d 1249, 1254 (10th Cir. 1998), we

concluded that “the same analysis applied to determine the existence of a property

right in employment is utilized to determine whether there is a property right in a

particular employment status.” Here, the substantive restriction on an

administrative transfer of tenured faculty is found in the Faculty Manual which

provides that a grievant is entitled to relief if the administrative action

complained of is “unfair, unreasonable, arbitrary, capricious or discriminatory.”

See § K.5.6.a (“The Hearing Committee shall not substitute its judgment on the

substantive merits of the decision which is the basis for the Grievance but will

review the decision of the Responsible Administrator solely to determine whether

the action is unfair, unreasonable, arbitrary, capricious or discriminatory.”); see

also § K.3; K.5.1.c. Even though that same language is used as a standard of

review in other parts of the Faculty Manual (see § K.5.8.1 & § K.5.8.2.b), it

confers substantive rights, i.e., administrators cannot take action that is unfair,

unreasonable, arbitrary, capricious, or discriminatory. A similar standard is used

in connection with the discipline of tenured faculty in § E.9.7. Indeed, this

standard was applied by the Grievance Hearing Committee in finding for Dr.

Hulen. Aplt. App. 85. We also note that administrators’ actions are “susceptible

to test by appropriate due process procedures,” § E.9.6.b, suggesting that those

actions may pass or fail such a test based upon the standard employed. If an

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administrator can demonstrate adequate cause, then the action will not be deemed

“unfair, unreasonable, arbitrary, capricious, or discriminatory.”

Defendants argue that several provisions of the Faculty Manual, by not

specifically addressing college or departmental assignment, imply that college or

departmental assignment is not part of an appointment to which the above

provisions apply. They argue that such assignment is not one of the five types of

basic appointment in the manual: (1) regular full-time, (2) regular part-time, (3)

special, (4) transitional, and (5) temporary. Aplt. App. 164-66. This is not

surprising given that the basic appointment concerns such matters as whether an

appointee is eligible to acquire tenure, whether the appointment has a specified

ending date, and retirement program enrollment. That departmental affiliation

can be an incident of the basic appointment is confirmed by the fact that

individual academic departments select academic staff and the “joint

appointment” provisions which provide that a faculty member “with an

interdepartmental appointment shall be considered a member of the department

contracting for the greater percentage of the time.” Aplt. App. 167 (§ E.5.1)

(emphasis supplied), at 152 (§ C.2.4.2), 163 (§ E.3.2) (selection of academic

faculty).

Defendants also rely upon the definition of tenure in the Faculty Manual to

suggest that professors are not appointed to a specific department:

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 Tenure is the practice of permanent or continuous appointments for
academic faculty in higher education, during which their service at a
particular institution may be terminated only for (i) adequate cause
demonstrated in a hearing before an appropriately selected faculty
committee, (ii) under the extraordinary circumstances of a bona fide
financial exigency, involving retrenchment or discontinuance of an
academic program or a department of instruction, or (iii)
discontinuance of a degree granting program or a department of
instruction not mandated by financial exigency.

Aplt. App. 171 (§ E.9.1). They point out that tenure refers to “service at a

particular institution,” and argue that the use of the disjunctive “or” means that a

tenured professor could be assigned to one department, but teach in another, yet

still lose tenure if the assigned department was eliminated. Aplt. Br. at 12-13.

That may be, but the language (as well as the joint appointment provisions)

plainly contemplates program or departmental assignment. The tenure definition

makes it clear that the tenure right is not absolute–it may not survive the demise

of a program or department due to financial exigency. If anything, the tenure

definition has a focus on a program or department, strongly implying that tenured

professors are assigned to programs or departments as part of their employment

status.

We have relied upon the following common understanding of tenure:

The term “tenure” bears common reference to the teaching
employment status generally granted after a probationary period
which serves to protect a teacher from dismissal except for serious
misconduct or incompetence. Drans v. Providence College, [119 R.I.
845] 383 A.2d 1033, 1039 (R.I. 1978) (and authorities therein cited)
(footnote omitted). The primary function served by the grant of

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 tenure is the preservation of academic freedom effected through the
provision of job security. Scholars are thereby encouraged to
vigorously pursue and disseminate research without fear of reprisal
or rebuke from those who support conventional wisdom. Id. See
also Annot. 66 A.L.R.3d 1018, et seq.

Crozier v. Howard, 11 F.3d 967, 970 (10th Cir. 1993) (quoting McAloon v.

Bryant College of Bus. Admin., 520 F. Supp. 103, 105-06 (D.N.H. 1981)). This

is entirely consistent with the above definition by CSU. The laudable aim of

tenure is furthered by CSU’s provisions requiring mutual consent or due process

before a professor is switched out of the academic department reflecting his or

her academic discipline.

Defendants also argue that “employment status” as used in § E.9.6.b does

not encompass departmental assignment because status only refers to whether the

employee is tenure, tenure track, possessing contract rights of renewal, or at will.

Aplt. Br. at 13-14 (citing K.2.2.b). We are not persuaded that the provision relied

upon, which sets out who may grieve and provides for pre-deprivation due

process before a constitutional right is taken away, was ever meant to be a

definitional section.

Defendants suggest that even if the transfer affected Dr. Hulen’s salary or

employment status, university administrators could alter this either by mutual

agreement or unilaterally given their inherent powers. We disagree. By way of

background, in August 1997 when Dean Costello involuntarily transferred Dr.

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Hulen, the State Agricultural Board had delegated part of its personnel powers to

the President of CSU. See Colo. Rev. Stat. § 23-5-117 (1987); Aplt. App. 230-36.

Included in that delegation was:

H. The power, concurrently with and in addition to existing inherent
power, to impose disciplinary sanctions upon Personnel for violations
of established University policies, including, but not limited to, the
power to suspend, demote and reassign.

Aplt. App. 233. This delegation could not be subdelegated. Aplt. App. 234.

Dean Costello testified in the grievance proceeding that he never claimed this was

a disciplinary matter. Aplt. App. 572. This delegation reinforces our conclusion

that Dr. Hulen had a property interest in his assignment in the Accounting

Department because the delegation plainly limits the President’s discretion to

reassign. See Hennigh, 155 F.3d at 1254.

Moreover, President Yates testified on deposition that during his almost

eleven-year tenure at CSU, he was unaware that any other tenured professor had

ever been transferred involuntarily to another department. Aplt. App. 114; accord

id. at 483 (“During my 27 years on the Faculty, five years as the [University

Mediation Officer], I am unaware of any previous instance where a faculty

member has been transferred to another department, without their mutual consent

as required by the Faculty Manual.”) (Switzer aff.); id. at 787 (Q. “I want to

know if there have been other transfers of other faculty from one department to

another in some history of this College, or is this the first this has happened?” A.

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(Dean Costello) “[N]ot that I’m aware of.”).

We conclude that Dr. Hulen had a property interest in his departmental

assignment based upon the terms and conditions of his appointment, the Faculty

Manual, particularly sections E.6.a and E.9.6.b. It is confirmed by the State

Board of Agriculture’s delegation of certain personnel powers to the CSU

president and the unanimous custom and practice of the university.

b. Adequacy of Process Afforded

Defendants argue that Dr. Hulen received all the process he was due, even

if he had a property interest in his departmental assignment. After a careful

review of the record, we agree. Dr. Hulen received as much process as would

have been due had he been fired, and the transfer of an employee certainly

requires no more procedural safeguards than a termination. To understand our

conclusion, it is important to look closely at the process involved.

i. Process Involved

By December 1996 Dr. Hulen had learned that he was likely to be

transferred out of the Accounting and Taxation Department and into the

Management Department as part of an effort to remedy ongoing dysfunction

within the Accounting and Taxation Department. Desiring to stay in the

Accounting and Taxation Department, he began expressing his concerns over the

move in an effort to forestall the transfer.

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 On December 18, 1996, Dr. Hulen protested his potential transfer in a

memorandum he gave to Dean Costello. In the document Dr. Hulen made clear

that he “really [did] not want to be in the Management Department,” and gave

specific reasons why such a transfer would be harmful to him and to the

university. Aplt. App. at 242. He asserted that CSU would be harmed because

the transfer might negatively influence students taking the CPA exam. He also

argued that the administration needed “to keep faculty who teach tax together”

because there was a “need for joint decision making and close coordination of

many aspects of the tax program,” and “splitting tax faculty [would] fragment

student focus further and probably [would] lead to reduced student numbers over

time.” Aplt. App. at 242. As for the effect on him personally, Dr. Hulen

contended that the transfer would be harmful in that (1) the Management

Department chair was a “close friend and business partner” of Professor Mister,

the former Accounting and Taxation Department chair against whom Dr. Hulen

had filed charges; (2) the Chair “ha[d] been known to express anger/outrage a

number of times that charges were filed against Mister”; (3) the Management

Department had factional problems; and (4) Dr. Hulen had “no desire to change

fields,” and the departmental “change would involve a lengthy start-up and would

negate a long investment of time in research and publishing [that Dr. Hulen had

made] in the tax field.” Aplt. App. at 242.

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 Dr. Hulen wrote Dean Costello again on February 10, 1997, requesting that

he be allowed to stay in the Accounting and Taxation Department. This letter

gave three pages of detailed reasons why the transfer should not be effectuated.

Among other things, Dr. Hulen argued that (1) most of the problems in the

Accounting and Taxation Department no longer existed; (2) he did not personally

create any of the problems that had existed in the Accounting and Taxation

Department; (3) he is an accountant, with public accounting experience, who

teaches only tax classes, and he therefore belongs in the Accounting and Taxation

Department; (4) being transferred outside the Accounting and Taxation

Department would make it “virtually impossible” for him to obtain a job teaching

tax or accounting at another institution; (5) being housed in the Management

Department would “virtually . . . eliminate any possibility of obtaining outside

grants for tax or accounting research”; (6) his professional credibility would be

harmed by a transfer to the Management Department; and (7) transferring him to

the Management Department would create the impression that he had done

something wrong. Aplt. App. at 244-46.

Also on February 10, 1997, four members of the Accounting and Taxation

Department, including Dr. Hulen, sent Dean Costello a letter opposing the

departmental reassignments and giving reasons why tranquility could be achieved

within the Accounting and Taxation Department without the transfers. The letter

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admitted that disruption had existed in the past but asserted that the department

could now function efficiently. The faculty members urged Dean Costello to

undertake an investigation prior to effectuating the departmental transfers. They

contended that such an investigation would reveal that the majority of the faculty

members do work together and could function under the new department chair,

that the faculty members whose transfer was proposed were those most

responsible for mentoring younger faculty members, and that departmental

transfers would jeopardize the department’s ability to achieve new “outreach”

requirements. Aplt. App. at 243.

In addition to this written correspondence, Dean Costello and Dr. Hulen

met twice—once in February and once in April—to discuss the impending

transfer.

Finally, on June 10, 1997, Dr. Hulen’s lawyer sent CSU President Yates a

letter, with a copy to Dean Costello. The letter notes that “Dean Costello has

announced that four of the five faculty members threatened by Dr. Moore,

including Dr. Hulen, were being transferred out of the Accounting and Taxation

Department . . . .” It then goes on to state that transferring Dr. Hulen to the

Management Department would “result in significant professional damages,”

including (1) decreasing Dr. Hulen’s ability to obtain tax and accounting research

grants, (2) making it more difficult for him to publish papers, (3) causing

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professional stigmatization, and (4) jeopardizing Dr. Hulen’s ability to find

another job in a tax or accounting department should he ever wish to relocate to

another school.

Dr. Hulen’s nearly eight months of effort to avoid the transfer proved

unsuccessful. On August 5, 1997, he received an official notice letter from Dean

Costello, advising him that he would be transferred to the Management

Department for the upcoming academic year. The letter stated that he was being

transferred as part of an attempt to achieve harmony within the Accounting and

Taxation Department.

Despite the official notice, Dr. Hulen was still able to contest his transfer

through CSU’s grievance process. This process affords extensive procedural

protections, including the rights to be represented by counsel, to have an

opportunity to be heard, to present all relevant evidence, to confront and cross-

examine witnesses, and to have one’s case decided by impartial decisionmakers.

The grievance process also allows grievants to appeal adverse hearing committee

decisions to additional impartial decisionmakers—first to the university provost,

then to the university president, and finally to the State Board of Agriculture.

Dr. Hulen twice availed himself of the grievance process, though he waited

more than two months—well into the new academic year—before lodging his first

complaint. On October 10, 1997, Dr. Hulen filed a grievance claiming that he

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was improperly denied due process prior to his transfer. On November 3, 1997,

the Grievance Hearing Committee concluded that Dr. Hulen was not entitled to a

formal pre-deprivation hearing. Dr. Hulen did not appeal that decision.

In the meantime, on October 20, 1997, Dr. Hulen filed a second grievance,

which included an allegation that he was deprived of a property interest in his

appointment to the Accounting and Taxation Department without due process of

law. On April 3, 1998, the Grievance Hearing Committee conducted a full

evidentiary hearing on the second grievance. (The record does not indicate why

there was a delay of nearly six months between when Dr. Hulen filed his

complaint and his April hearing.) Five days later, the committee issued its

decision. Although the committee agreed that Dean Costello had the authority to

transfer faculty out of the department and that the Dean had legitimate reasons to

do so independent of any motive to retaliate against Dr. Hulen, it concluded that

Dean Costello had failed to comply with the mutual-agreement provisions in the

Faculty Manual. Accordingly, the committee ruled that Dr. Hulen should be

allowed to return to the Accounting and Taxation Department. The decision was

appealed to CSU’s Provost who, in a May 8, 1998, written decision, reversed the

Grievance Hearing Committee and found in favor of Dean Costello on all counts.

On June 18, 1998, the President of the University affirmed the Provost’s decision,

as did the State Board of Agriculture (on a date unspecified in the record).

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 Aside from the formality of his being assigned to a new department, it is

unclear whether Dr. Hulen suffered any adverse consequences between the date of

the official notice of his transfer and the date of his evidentiary hearing. In an

affidavit Dr. Hulen complains that the departmental reassignment negatively

impacted his compensation and his reputation, changed the courses he could

teach, and required him to incur additional expenses.

It appears, however, that most, if not all, of these consequences did not

occur until after his formal hearing. The August 1997 letter informed him that

there would be “few changes, if any,” in teaching assignments for the upcoming

year. Not until May 1998 (nine months after the notice of transfer and a month

after the hearing) was he told that he could teach only two tax classes in the

Accounting and Taxation Department in any given year. Similarly, although he

claims that he was no longer allowed to teach summer tax or accounting classes,

the earliest he could have been deprived of this opportunity was the summer of

1998––nearly a year after he was reassigned to the Management Department.

(Moreover, it appears that Dr. Hulen taught the same course during the summer of

1998 that he taught during the summer of 1997—class “BA430.” Dr. Hulen aired

at least his professional concerns about being removed from the Accounting

Department to Dean Costello before he was transferred. Aplt. App. at 279-81.

The timing of other adverse consequences alleged in Dr. Hulen’s affidavit

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is more difficult to ascertain. Those consequences are all financial. Dr. Hulen

claims he would have been eligible for an equity adjustment in his salary and for

grants available only to accounting department members. He also says that after

his transfer he was no longer reimbursed for professional journals, tax association

dues, and other professional expenses. His affidavit, however, makes no mention

of when these harms occurred. If Dr. Hulen suffered any of these harms before

his grievance committee hearing, he has failed to present evidence of that fact.

Nor does he explain why he could not have obtained full reimbursement after a

post-transfer hearing (had he been successful in his grievance).

ii. Qualified Immunity

To defeat Dean Costello’s claim that he is entitled to qualified immunity on

Dr. Hulen’s procedural due process claim, Dr. Hulen must show that the

procedure afforded him failed to meet constitutional norms that were clearly

established in 1997. If anything was clear in 1997 (and it remains so today), it is

that the process received by Dr. Hulen was at least as much as the Constitution

guarantees. Throughout this litigation there have been repeated references to, and

apparent reliance on, the Faculty Manual’s procedural rules. But in deciding

whether a state has violated a person’s constitutional right to procedural due

process, we should pay no attention to whether the state has complied with

procedures mandated by state law. To be sure, state law determines whether a

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person has a property right. But once the property right is established, it is purely

a matter of federal constitutional law whether the procedure afforded was

adequate. As the Supreme Court said in Loudermill, 470 U.S. at 541: “[O]nce it

is determined that the Due Process Clause applies, the question remains what

process is due. The answer to that question is not to be found in the [state]

statute.” (internal citation and quotation marks omitted).

This circuit confronted the issue in Hennigh, 155 F.3d at 1256, where a

police officer brought a claim that he was denied procedural due process when he

was demoted in rank. He relied in part on the procedures guaranteed by his

collective bargaining agreement (CBA). The court wrote:

Plaintiff maintains that his procedural due process rights were
violated when he was disciplined by Defendants because the
discipline was not imposed in accordance with the CBA's
requirement that such action could only be taken if it was based on
notarized complaints. However, the Constitution does not require
that each individual receive the procedural guarantees provided for
by the instrument which bestows a property interest.

Id. (emphasis added); see Levitt v. Univ. of Texas, 759 F.2d 1224, 1229 (5th Cir.

1985) (“Even if the University failed to follow its own rules, it nevertheless gave

[the professor] all the process to which he was entitled under the Constitution.”).

There is no basis for departing from this precedent.

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 iii. Pre-Transfer Process

Dr. Hulen argues that he “did not receive any due process before he was

transferred.” Aplee. Br. at 21. Such is not the case. As described above, the

transfer was not a surprise to Dr. Hulen. The record shows that he knew of the

prospect as early as December 1996, eight months before the official letter. In

December 1996 and February 1997 he thoroughly explained his position to the

dean in writing; and he joined three other faculty members in an additional

February 1997 letter. He met with Dean Costello to discuss the matter in

February and April 1997. And his lawyer sent a letter to President Yates (with a

copy to Dean Costello) in June 1997. The correspondence establishes that there

was comprehensive communication between Dr. Hulen and Dean Costello

regarding the dean’s intentions and Dr. Hulen’s reasons for opposing the move.

We reject the suggestion that Dr. Hulen was entitled to a formal

hearing—an evidentiary hearing—before being laterally transferred. It would be

remarkable if such a hearing were constitutionally required, since the Constitution

does not even require such a hearing before an employee is fired.

The leading Supreme Court opinion on the matter is Loudermill. In that

case the Court held that constitutional due process required the school board to

provide a hearing before terminating tenured school employees; but it fell far

short of mandating a formal evidentiary hearing. The Court wrote:

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 The essential requirements of due process . . . are notice and an
opportunity to respond. The opportunity to present reasons, either in
person or in writing, why proposed action should not be taken is a
fundamental due process requirement. . . . The tenured public
employee is entitled to oral or written notice of the charges against
him, an explanation of the employer's evidence, and an opportunity to
present his side of the story. See Arnett v. Kennedy, 416 U.S. 134,
170-71 (1974) (opinion of Powell, J.) . . . .

470 U.S. at 546. The reference to Justice Powell’s concurrence in Arnett is

particularly informative, because Justice Powell in that opinion approved a pre-

termination procedure that was limited to “30 days’ advance written notice of the

reasons for his proposed discharge and the materials on which the notice is

based[; . . .] the right to respond to the charges both orally and in writing,

including the submission of affidavits[; and] . . . an opportunity to appear

personally before the official having the authority to make or recommend the final

decision.” Arnett, 416 U.S. at 170 (Powell, J., concurring). Justice Powell

specifically noted that no formal evidentiary hearing would be conducted prior to

termination. Id.

Applying Loudermill to claims of denial of pre-termination procedural

rights, this circuit has required only the core of notice and an opportunity to be

heard. West v. Grand County, 967 F.2d 362, 368 (10th Cir. 1992), observed that

“the standards the Supreme Court delineated in Loudermill for pretermination

hearings are not very stringent . . . .” In West the plaintiff lost her job because of

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an alleged reduction in force by the new county attorney. She had a two-hour

discussion with the county attorney during which he informed her that her job was

in jeopardy and she asked about her rights under the county personnel rules. She

later consulted with county commissioners on the matter. Her claim that she was

denied pre-termination due process was rejected. The court relied on two prior

Tenth Circuit decisions. It described one as holding that “pretermination

warnings and an opportunity for a face-to-face meeting with supervisors” satisfied

due process requirements. Id. at 367 (citing Seibert v. Univ. of Okla. Health Sci.

Ctr., 867 F.2d 591, 596-99 (10th Cir. 1989), abrogated on other grounds, Federal

Lands Legal Consortium v. United States, 195 F.3d 1190, 1195 (10th Cir. 1999)).

It described the other as holding that “[a] brief face-to-face meeting with a

supervisor provides sufficient notice and opportunity to respond . . . .” Id. at 368

(citing Powell v. Mikulecky, 891 F.2d 1454, 1459 (10th Cir. 1989)).

Thus, Dr. Hulen actually received more pre-deprivation process than what

these cases held to be constitutionally sufficient in the job-termination context.

He was able to meet with the decisionmaker twice, lodged repeated written

complaints, and engaged the services of an attorney in an attempt to avoid the

transfer. Given the benchmarks established by Loudermill and the Tenth Circuit

cases that followed, it is apparent that Dr. Hulen received all the pre-transfer

process he was due.

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 iv. Post-transfer process

Our discussion of the adequacy of the post-transfer process can be brief.

CSU provides an extensive grievance process. Dr. Hulen (1) had a hearing, (2)

was assisted by counsel, (3) cross-examined opposition witnesses, (4) called his

own witnesses, (5) presented his side of the story, (6) had his case decided by

impartial decisionmakers, and (7) had three levels of appellate review, each

performed by an impartial decisionmaker. Aplt. App. at 201-03.

Dr. Hulen’s only complaint regarding this process is that he improperly bore

the burden of proof. He argues that this was improper because his grievance

should have been categorized as “Class A” (rather than “Class B”) under the

Faculty Manual, thereby placing the burden on the CSU administration. Although

accepted by the district court, this argument has no merit. As stated above, the

Faculty Manual’s allocation of the burden is irrelevant to the constitutional

question. See Loudermill, 470 U.S. at 541.

As for the constitutional question, “[o]utside the criminal law area, where

special concerns attend, the locus of the burden of persuasion is normally not an

issue of federal constitutional moment.” Lavine v. Milne, 424 U.S. 577, 585

(1976). Dr. Hulen relies, however, on a statement in this court’s decision in

Benavidez v. City of Albuquerque, 101 F.3d 620 (10th Cir. 1996). Although

rejecting the procedural due process claim by the terminated employee in that case,

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the opinion left open the possibility that it may be improper to place the burden of

proof on the employee when the employee has been offered “little or no

opportunity . . . to present his side of the case” in the pre-termination process. 101

F.3d at 626. But that is not the situation here. Dr. Hulen had full notice of the

proposed transfer and repeated opportunities to respond. He likely knew as much

about the university’s position on the matter as if he had been given a full-scale

evidentiary hearing before his transfer. Thus, Benavidez undermines, rather than

supports, Dr. Hulen’s position.

Having determined that the Defendants’ conduct did not violate Dr. Hulen’s

right to due process, we need not address the argument that any such right was not

clearly established at the time of the conduct.

We AFFIRM the denial of qualified immunity on the First Amendment

claim, REVERSE the grant of summary judgment in favor of Dr. Hulen on his

procedural due process claim, and GRANT qualified immunity to Dean Costello on

the procedural due process claim.

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