Allan F. Archer, Jr. v. Gilbert Sanchez

933 F.2d 1526
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 1, 1991
Docket88-2773
StatusPublished
Cited by16 cases

This text of 933 F.2d 1526 (Allan F. Archer, Jr. v. Gilbert Sanchez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allan F. Archer, Jr. v. Gilbert Sanchez, 933 F.2d 1526 (10th Cir. 1991).

Opinions

JOHN P. MOORE, Circuit Judge.

Allan F. Archer, Jr., the former Director of Development and Alumni Affairs at New Mexico Highlands University, instituted suit alleging he was terminated without notice and a hearing in violation of his civil rights. This interlocutory appeal of the district court’s denial of summary judgment on qualified immunity grounds again seeks to derail the action. We decline to do so and affirm.

Mr. Archer was hired by New Mexico Highlands University (the University) under a written contract, “[i]n accordance with the Statutes of the State of New Mexico and the Bylaws and Regulations of the University Board of Regents,” for a term of one year from July 1, 1986, to June 30, 1987. The contract designated his appointment as Director of the University Foundation and Alumni Affairs. On January 8, 1987, Mr. Archer received a letter from Gilbert Sanchez, president of the University and with whom he had negotiated his contract, stating he was terminated, effective January 23, 1987. When Mr. Archer later met with Mr. Sanchez, he was shown a copy of the Secretarial, Clerical and Physical Plant Personnel Policy & Procedures Manual (the Manual) for the University and told that a specific provision, stating that he served “at the pleasure of the President of the University,” supported the firing.1

Mr. Archer filed suit under 42 U.S.C. § 1983, alleging Mr. Sanchez and the Board of Regents deprived him of due process by terminating his employment contract without cause. Additional state claims for damages for breach of contract and the intentional infliction of emotional distress were appended. However, only the § 1983 claim against Mr. Sanchez in his individual capacity survived the winnowing of prelimi[1528]*1528nary motions.2

In support of his motion for partial reconsideration of summary judgment on the basis of qualified immunity, Mr. Sanchez argued that the Manual gave him an objectively reasonable basis to believe Mr. Archer did not have a protected property interest in his employment. In a supplemental affidavit, Mr. Sanchez averred he personally showed Mr. Archer the section of the Manual when they met, and he believed Section I.B.8 supported his decision. Mr. Sanchez stated that the phrase, “Regulations of the University Board of Regents,” appearing in Mr. Archer’s contract, referenced the Manual. A copy of the Manual was attached to the motion.

Responding, Mr. Archer contended his contract was for a definite term which, by its own terms and under New Mexico law, could only be terminated for cause. Therefore, because he had a protected property interest in his employment, Mr. Archer could not be fired without notice of the basis of his termination and an opportunity for a hearing. By supplemental affidavit, Mr. Archer stated he had never been told about or previously shown the Manual until Mr. Sanchez met with him. Mr. Archer stated that he had read the Regents’ Policy Manual and the Faculty Handbook, which did not authorize the president’s conduct, and received the Manual only after the University librarian offered it to him as the only other document he could find on University employment practices.3

Mr. Archer submitted two additional affidavits. In one, John Aragon, who had served as president of the University for ten years before Mr. Sanchez was appointed to the position, stated that while the contractual rights of faculty were delineated and other personnel “had refuge under the personnel handbook ... [i]n those cases, and I don’t recall any specific one, where the employee merely served from contract to contract for a specific term, he was afforded the right to a reason and a hearing if a termination was made during the contractual period.” Mr. Aragon stated that the Manual language, “serve at the pleasure of the President,” did not support “the right to terminate such employees without notice or a right to a hearing, if the employee had a contract for a specific term.” In the second affidavit, Leo Moya, Director of Personnel at the University when Mr. Sanchez was appointed president, stated that Mr. Sanchez had asked him about the proper procedure to follow to terminate certain employees with written employment contracts for a specific term like that of Mr. Archer. Mr. Moya averred he told Mr. Sanchez that the “personnel manuel [sic] did not provide a procedure to follow for persons with a contract for a term, except such procedures as might be contained in the contract.” He further stated he advised Mr. Sanchez in order to terminate an individual with such a contract before the end of the term, notice of intent to terminate and the reason for termination had to be provided.4

Mr. Archer also submitted the “Foreword” to the Regents’ Policy Manual [Exhibit D] which provides, in part:

The Manual will serve as a source of information for all concerned with the basic policies and procedures followed by the Board of Regents in exercising its authority and discharging its responsibilities for the purpose of fulfilling the mission of the University. [1529]*1529This Regents’ Policy Manual, as adopted and as amended from time to time, is the basic document governing the University community. Authority not expressly, or by necessary implication, delegated by the Manual is reserved to the Regents.

In its order denying the motion for partial reconsideration, the district court laid out the analysis established by Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); and Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Recognizing that under Roth plaintiff must first establish he has a property interest in his employment, the district court looked to state law to characterize this particular entitlement, Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), and concluded that New Mexico law requires good cause to terminate an employment contract for a definite term unless the contract includes an alternative method. See Melnick v. State Farm Mut. Auto. Ins. Co., 106 N.M. 726, 749 P.2d 1105, cert. denied, 488 U.S. 822, 109 S.Ct. 67, 102 L.Ed.2d 44 (1988); Bottijliso v. Hutchison Fruit Co., 96 N.M. 789, 635 P.2d 992 (Ct.App.), cert. denied, 97 N.M. 483, 641 P.2d 514 (1981). The district court was unable to conclude the provision in the Manual represented such an implied alteration. In fact, the court noted the only evidence in support of that conclusion was the printed statement on the cover of the Manual5 and Mr. Sanchez’s affidavit stating he believed the Manual is a regulation of the Board of Regents. Moreover, the court found the language in Section I.B.8,6

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Allan F. Archer, Jr. v. Gilbert Sanchez
933 F.2d 1526 (Tenth Circuit, 1991)

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Bluebook (online)
933 F.2d 1526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allan-f-archer-jr-v-gilbert-sanchez-ca10-1991.