USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1113
RUSSELL COTNOIR,
Plaintiff - Appellee,
v.
UNIVERSITY OF MAINE SYSTEMS
AND GEORGE CONNICK, ET AL.,
Defendants - Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Paul W. Chaiken, with whom Brett D. Baber and Rudman &
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Winchell were on brief for appellants.
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Joseph M. Jabar, with whom John P. Jabar and Daviau, Jabar &
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Batten were on brief for appellee.
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September 13, 1994
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TORRUELLA, Circuit Judge. Plaintiff-appellee Russell
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Cotnoir, a tenured professor at the University of Maine, Augusta
("UMA"), was accused of academic and administrative improprieties
and was subsequently fired. Cotnoir then filed suit against the
UMA and three university employees, Chancellor Robert Woodbury,
President George Connick, and Provost Richard Randall ("the
individual defendants"), pursuant to 42 U.S.C. 1983, alleging,
among other things, that the individual defendants denied Cotnoir
procedural due process in connection with their decision to
terminate his employment. The individual defendants moved for
summary judgment, requesting that they be granted qualified
immunity. The district court denied their motion and this
interlocutory appeal followed. We find that at this juncture,
the individual defendants are not entitled to qualified immunity
with respect to Cotnoir's procedural due process claim, and
therefore, we affirm.
I. STATEMENT OF THE CASE
I. STATEMENT OF THE CASE
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A. Facts
A. Facts
When a defendant moves for summary judgment based on
the doctrine of qualified immunity, the court must review the
facts in the light most favorable to the plaintiff. Febus-
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Rodr guez v. Betancourt-Lebr n, 14 F.3d 87, 89 (1st Cir. 1994).
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The facts appearing from the summary judgment materials are as
follows.
Cotnoir was a tenured professor at the UMA, and was
also the Chairperson of the Business and Governmental Science
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Division ("BAGS"). On October 29, 1991, another professor at the
UMA, Ronald Norton, sent a letter to the dean of students
indicating that a BAGS student had received 56 credits without
having attended classes. Norton's letter further indicated that
this particular student was registered as a Maine resident,
although he was living in Louisiana.
In response to the letter, Richard Randall, the Provost
at the UMA, conducted an investigation. As part of this
investigation, Randall interviewed Cotnoir, several of his
colleagues, and other individuals with knowledge regarding the
incident. On December 13, 1991, Randall completed his report,
and gave it to George Connick, the President of the UMA. This
report contained a summary of Randall's findings regarding this
academic matter and included an explicit recommendation that
Cotnoir be dismissed.
On December 16, 1991, Connick sent a letter to Cotnoir,
which stated:
Provost Richard Randall has completed his
report to me on the investigation of the
academic issues raised by Professor
Ronald Norton in his letter of October
29, 1991.
I wish to offer you the opportunity to
meet with me so that you might further
clarify your role in this series of
events, prior to my determining what
action to take. It is important that you
understand that disciplinary action may
result from my investigation of your
participation in this serious academic
matter.
If you would like to meet with me, please
call Lisa Grundstrom-Whitney, Assistant
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to the President, immediately, so that an
appointment can be arranged before the
endof theday, Wednesday,December 18,1991.
On December 17, 1991, Connick met with Cotnoir. During
this meeting, Connick explained to Cotnoir that Randall had
prepared a report of the investigation. Connick did not show
Cotnoir the report, and Cotnoir apparently did not ask to see the
report. Cotnoir did not make a statement, and Connick then
proceeded to ask Cotnoir twelve questions about the BAGS student,
which Cotnoir answered.
On December 27, 1991, Connick sent Cotnoir a letter
informing him that his employment was terminated effective
December 31, 1991. Cotnoir then filed a grievance regarding the
termination. Connick appointed Sherri Stevens, Executive
Director of Administrative Services, to be his designee, and
impartially review the matter. Although Stevens never held a
hearing, she met with Cotnoir and his faculty representative
three times. On June 5, 1992, Stevens submitted a report to
Connick concluding that the UMA had met its burden of proof that
there was sufficient cause to terminate Cotnoir, and that the
termination decision should not be reversed. Connick accepted
her report. At this time, Stevens was also representing the UMA
in opposing Cotnoir's request for unemployment benefits before
Maine's Department of Labor, on the basis of Cotnoir's alleged
misconduct.
On June 17, 1992, Cotnoir filed a grievance with
Chancellor Woodbury. Woodbury appointed Samuel D'Amico, the
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Associate Vice Chancellor, to review Cotnoir's grievance. On
July 13, 1992, D'Amico notified Cotnoir that his review was
limited to a determination of whether proper procedures had been
followed. D'Amico ultimately concluded that Cotnoir's
termination was conducted in accordance with the grievance
procedures set forth in the UMA's handbook for non-represented
employees. D'Amico notified Cotnoir that he had a right to
appeal to the University of Maine System Board of Trustees.
Cotnoir then waived his right to appeal to the Board of
Trustees, and the UMA agreed to this waiver.
B. Proceedings Below
B. Proceedings Below
Following his termination, Cotnoir filed this action,
alleging claims under 42 U.S.C. 1983, as well as pendent state
claims. The claim which underlies this appeal is that Woodbury,
Connick, and Randall, violated Cotnoir's right to procedural due
process in conjunction with their decision to terminate his
employment. The individual defendants moved for summary
judgment. In this motion, they claimed, in part, that they were
entitled to qualified immunity with respect to Cotnoir's
procedural due process claim. Magistrate Judge Beaulieu issued a
recommended decision denying the individual defendants' summary
judgment motion on the issue of qualified immunity. The district
court (Brody, J.), then adopted the Magistrate Judge's
recommended decision. This interlocutory appeal followed.
II. ANALYSIS
II. ANALYSIS
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A. Jurisdiction
A. Jurisdiction
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At the outset, we will discuss the scope of this
appeal. "[A] district court's denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an
appealable 'final decision' within the meaning of 28 U.S.C.
1291. . . ." Febus-Rodr guez, 14 F.3d at 90 (quoting Fonte v.
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Collins, 898 F.2d 284, 285 (1st Cir. 1990)) (other citations
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omitted). On appeal, Cotnoir suggests that in addition to
affirming the district court's denial of qualified immunity
below, we should also decree that he is entitled to judgment as a
matter of law on his 1983 procedural due process claim.
Cotnoir contends that he is entitled to such a judgment because
the record is clear regarding the events which occurred with
respect to his termination. We decline Cotnoir's invitation, and
adhere to our "well-established practice of limiting our
interlocutory review to the issue of qualified immunity," even
when the merits of the case are "inexorably intertwined" with the
qualified immunity issue. Newman v. Massachusetts, 884 F.2d 19,
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22 (1st Cir. 1989), cert. denied, 493 U.S. 1078 (1990) (citations
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omitted).
B. The Summary Judgment Standard
B. The Summary Judgment Standard
"Where a qualified immunity defense is advanced by
pretrial motion, 'normal summary judgment standards' control."
Amsden v. Moran, 904 F.2d 748, 752 (1st Cir. 1990), cert. denied,
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498 U.S. 1041 (1991) (citations omitted). A motion for summary
judgment must be granted if:
[T]he pleadings, depositions, answers to
interrogatories, and admissions on file,
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together with the affidavits, if any,
show that there is no genuine issue as to
any material fact and that the moving
party is entitled to a judgment as a
matter of law.
Fed. R. Civ. P. 56(c). In this context, we will examine the
record and "draw all reasonable inferences therefrom in the light
most hospitable to the party opposing the motion." Amsden, 904
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F.2d at 752 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 255
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(1986)) (other citation omitted). Because the individual
defendants' summary judgment motion rested on the legal question
of whether they are entitled to qualified immunity on the basis
of facts which must, by definition, be undisputed, appellate
review of the district court's order is plenary. See Amsden, 904
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F.2d at 752. We will therefore delve into the record to
determine whether a genuine issue of material fact exists with
respect to the individual defendants' claim that they are
entitled to qualified immunity. Unwin v. Campbell, 863 F.2d 124,
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132 (1st Cir. 1988).1
C. Qualified Immunity
C. Qualified Immunity
Qualified immunity shields government officials
performing discretionary functions from civil damages "insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
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1 The three individual defendants did not attempt to identify
who was responsible for each action; rather, they focused on
their collective liability. At this juncture, we will not
attempt to distinguish among the individual defendants in order
to determine to what extent each may or may not have contributed
to the alleged harm. See Domegan v. Fair, 859 F.2d 1059, 1065
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(1st Cir. 1988).
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known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Hoffman
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v. Reali, 973 F.2d 980, 985 (1st Cir. 1992); Amsden, 904 F.2d at
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751. On a motion for summary judgment, "the
relevant question is whether a reasonable
official could have believed his actions
were lawful in light of clearly
established law and the information the
official possessed at the time of his
allegedly unlawful conduct."
Febus-Rodr guez, 14 F.3d at 91 (quoting McBride v. Taylor, 924
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F.2d 386, 389 (1st Cir. 1991)) (other citations omitted). Thus,
the central issue with respect to qualified immunity is not
whether a defendant actually violated a plaintiff's rights.
Rather, the inquiry focuses on the objective reasonableness of a
defendant's actions, in light of whether the plaintiff's rights
were clearly established, and whether the contours of that right
were sufficiently clear such that a reasonable official would
have understood that the actions he took violated that right.
See Amsden, 904 F.2d at 752-53; Collins v. Marina-Mart nez, 894
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F.2d 474, 476 (1st Cir. 1990).
D. Procedural Due Process
D. Procedural Due Process
The Fourteenth Amendment to the United States
Constitution provides that no state shall deprive any person of
life, liberty or property without due process of law. See
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generally Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972);
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Amsden, 904 F.2d at 752. Cotnoir was a tenured professor at the
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UMA. It has long been "clearly established" that a tenured
professor enjoys a property right sufficient to invoke procedural
due process protections. See Perry v. Sindermann, 408 U.S. 593,
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601 (1972); Collins, 894 F.2d at 478; Newman, 884 F.2d at 19
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(citations omitted).
We must therefore determine what process was due
Cotnoir, and whether the individual defendants reasonably should
have understood that their actions violated Cotnoir's procedural
due process rights. See Amsden, 904 F.2d at 752; Newman, 884
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F.2d at 23. Procedural due process is a "guarantee of fair
procedure." Amsden, 904 F.2d at 753 (quoting Zinermon v. Burch,
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494 U.S. 113, 125 (1990)).
The basic purport of the constitutional
requirement is that, before a significant
deprivation of liberty or property takes
place at the state's hands, the affected
individual must be forewarned and
afforded an opportunity to be heard "at a
meaningful time and in a meaningful
manner."
Amsden, 904 F.2d at 753 (quoting Armstrong v. Manzo, 380 U.S.
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545, 552 (1965)). Procedural due process guarantees an affected
individual the right to some form of hearing, with notice and an
opportunity to be heard, before he is divested of his protected
interest. See Cleveland Board of Education v. Loudermill, 470
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U.S. 532, 542 (1985); Collins, 894 F.2d at 480; Newman, 884 F.2d
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at 23l; Brasslett v. Cota, 761 F.2d 827, 836 (1st Cir. 1985).
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While a hearing need not be elaborate, a "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." Loudermill, 470 U.S. at 546
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(citations omitted); Brasslett, 761 F.2d at 836.
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E. The Process Afforded Cotnoir
E. The Process Afforded Cotnoir
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The dictates of Loudermill squarely control the present
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case, and compel us to find that based on the facts appearing in
the record, the individual defendants reasonably could not have
believed that their actions satisfied the minimum procedural due
process requirements.2 Cotnoir argues that the individual
defendants are attempting to recast their investigation of the
charges of academic and administrative impropriety which were
alleged against him, into a hearing with respect to these
charges, and their decision to fire him. Cotnoir argues that, in
fact, he was never afforded a hearing where he had a fair
opportunity to present his side of the story. Based on the facts
now appearing in the record, we agree and find that the
individual defendants' after-the-fact recharacterization of their
actions fails. At this juncture, the individual defendants are
not entitled to judgment, because it appears from the record that
they denied Cotnoir: 1) adequate notice of the UMA's proposed
decision to terminate his employment based on alleged academic
and administrative improprieties, and 2) an explanation of the
UMA's evidence against him.
1. Failure to Provide Notice of Proposed Action
1. Failure to Provide Notice of Proposed Action
The individual defendants contend that they were only
obligated to provide Cotnoir with notice regarding the charges of
academic and administrative improprieties alleged against him,
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2 Our references to the record facts are not intended to
determine any factual issue, but merely reflect the facts that
are either undisputed or cannot be resolved against Cotnoir
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except by the fact finder in the trial court.
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and that they had no further obligation to notify Cotnoir that
they were considering terminating his employment. They claim
that because the record shows that they notified Cotnoir of the
charges against him, they did not violate Cotnoir's procedural
due process rights, and they are entitled to qualified immunity.
We disagree. When the Supreme Court decided Loudermill, it
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clearly contemplated that when an individual is faced with the
potential loss of a protected interest, officials must provide
the individual with notice of the charges alleged against him and
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any proposed action the officials intend to take, based on those
charges. See Loudermill, 470 U.S. 543-46.
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[The pretermination hearing] should be an
initial check against mistaken decisions
- essentially, a determination of whether
there are reasonable grounds to believe
that the charges against the employee are
true and support the proposed
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action. . . .
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.
Id. at 545-46 (emphasis added) (internal citations omitted).
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Providing notice of both the charges against an employee, and the
proposed action based on those charges is necessary, because
"[e]ven where the facts are clear, the appropriateness or
necessity of the discharge may not be; in such cases, the only
meaningful opportunity to invoke the discretion of the
decisionmaker is likely to be before the termination takes
effect." Id. at 543 (citations omitted).
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Based on the facts now appearing in the record, it
appears that the individual defendants failed to provide Cotnoir
with any notice that they were considering terminating his
employment, prior to making the decision to do so. The record
indicates that Cotnoir initially met with Randall with respect to
Randall's investigation into the academic incident, and Cotnoir
generally explained what actions he had taken relative to this
incident, and why he had taken those actions. After completing
his investigation, Randall prepared a report, and submitted it to
Connick. In that report, Randall set forth his findings based on
his investigation, and recommended that Cotnoir be fired.
Connick then invited Cotnoir to meet with him so that Cotnoir
could "clarify [his] role in this series of events," and Connick
alerted Cotnoir that unspecified "disciplinary action" could
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result. Cotnoir met with Connick, at which time Connick asked
Cotnoir to explain his role, and Connick asked him a series of
questions. Connick did not show Cotnoir the report, or otherwise
alert Cotnoir to the fact that he was considering terminating his
employment. Thus, despite the fact that Connick knew that
Randall had recommended termination, and that this action was
clearly being contemplated, the individual defendants never
provided Cotnoir with any notice of this proposed action. The
decision of whether or not to terminate Cotnoir's employment was
the very decision which would deprive Cotnoir of his property
interest, and the individual defendants reasonably should have
known that they were required to provide Cotnoir with notice of
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their proposed action and an opportunity to contest their
contemplated action, so that Cotnoir's participation in the
process could be meaningful. See generally Collins, 894 F.2d at
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481 (finding that where professor had no reason to believe his
tenure was being questioned, and notice of hearing was abrupt and
uninformative, officials did not afford professor a real chance
to present his side of the story and this violated his procedural
due process rights); cf. Newman v. Burgin, 930 F.2d 955, 960 (1st
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Cir. 1991) (finding that tenured professor was not deprived of
procedural due process when school officials provided professor
with notice of proposed action, and a trial-type hearing before a
neutral decisionmaker); Brasslett, 761 F.2d at 836 (finding that
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former town fire chief was not deprived of procedural due process
when he was notified of the possibility of discharge because of
alleged improprieties committed while fire chief, and was
afforded ample opportunity to defend his actions and rebut any
erroneous allegations).
2. Failure to Provide an Explanation of Employer's
2. Failure to Provide an Explanation of Employer's
Evidence
Evidence
When a public employee's tenured status is threatened,
he is entitled to an explanation of the substance of the
employer's evidence against him so that he can present his side
of the story. Loudermill, 470 U.S. at 546. Based on the present
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record, it appears that the individual defendants failed to
provide Cotnoir with an explanation of their evidence against him
regarding the academic incident in question. During the course
of his investigation, Randall met with Cotnoir, as well as a
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number of Cotnoir's colleagues and people who were otherwise
involved, to determine precisely what had occurred. Randall
summarized his investigation in the report which he submitted to
Connick. Connick, however, never showed the report to Cotnoir;
nor did anyone else. No one ever informed Cotnoir of the
substance of Randall's interviews with his colleagues. Nor did
anyone otherwise tell Cotnoir what in essence the evidence
against him was. Therefore, Cotnoir had no way to know what the
extent of the evidence was, what his alleged role in the whole
scheme was, and the seriousness with which the UMA viewed the
incident. Cotnoir therefore did not have an opportunity to
respond to, or defend himself against the evidence presented. A
reasonable official should have known that this failure to
explain the evidence against an individual violated one of the
basic procedural due process requirements.
F. The Post-Termination Proceedings
F. The Post-Termination Proceedings
The individual defendants argue that Cotnoir's
procedural due process rights were not violated because post-
deprivation procedures were available to ensure that Cotnoir's
termination was appropriate, and that he, in fact, received the
benefit of these procedural protections. We disagree.
Where an employee is fired in violation of his due
process rights, the availability of post-termination grievance
procedures will not ordinarily cure the violation. Kercad -
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Mel ndez v. Aponte-Roque, 829 F.2d 255, 263 (1st Cir. 1987)
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(citing Schultz v. Baumgart, 738 F.2d 231, 237 (7th Cir. 1984)),
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cert. denied, 486 U.S. 1044 (1988). Thus, even where a
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discharged employee receives a post-termination hearing to review
adverse personnel action, the pretermination hearing still needs
to be extensive enough to guard against mistaken decisions, and
accordingly, the employee is entitled to notice, an explanation
of the employer's evidence, and an opportunity to present his
side of the story. See Loudermill, 470 U.S. at 546; Brasslett,
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761 F.2d at 836. If an employee is fired without these pre-
termination protections, normally the constitutional deprivation
is then complete. Kercad -Mel ndez, 829 F.2d at 263. Thus, the
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post-termination grievance procedures which the individual
defendants provided to Cotnoir could not compensate for a lack of
pre-termination process afforded Cotnoir.
We do not believe on the facts now appearing in the
record, that it was reasonable for the individual defendants to
have believed that their actions satisfied the minimum due
process requirements. For the foregoing reasons, we affirm the
decision of the district court.
Affirmed.
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