F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 12 1999 TENTH CIRCUIT PATRICK FISHER Clerk
BRADY LOVINGIER,
Plaintiff - Appellee, v.
CITY OF BLACK HAWK, COLORADO, a Colorado territorial Charter Municipality,
Defendant, No. 98-1133 and (D.C. No. 97-B-242) (District of Colorado) LYNNETTE HAILEY, City Manager of the City of Black Hawk, Colorado, and in her individual capacity; BRIAN LESHER, Fire Chief, City of Black Hawk, Colorado, and in his individual capacity; ERVIN L. MEACHAM, Assistant Fire Chief, City of Black Hawk, Colorado, and in his individual capacity,
Defendants - Appellants.
ORDER AND JUDGMENT *
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Before EBEL, MAGILL ** and LUCERO, Circuit Judges.
Appellee Brady Lovingier, a former firefighter with the City of Black Hawk
Fire Department, brought this civil rights action under 42 U.S.C. § 1983, claiming
that his termination violated his due process rights. Asserting a qualified
immunity defense, appellants filed a motion to dismiss pursuant to Fed. R. Civ. P.
(12)(b)(6). The district court denied the motion. We exercise jurisdiction under
28 U.S.C. § 1291 and the collateral order doctrine, see, e.g. , Behrens v. Pelletier ,
516 U.S. 299, 311 (1996), and affirm in part and reverse in part.
I
Beginning in January of 1994, the City of Black Hawk employed appellee
Lovingier as a firefighter. On April 17, 1996, the Fire Chief, Brian Lesher, acting
on the recommendation of the Assistant Fire Chief, Ervin Meacham, terminated
Lovingier’s employment. Meacham recommended Lovingier’s termination in
March 1996; on April 17, Lesher terminated Lovingier by handing him a notice of
dismissal, “effective immediately.” Appellant’s App. at 31. Although disputed
by appellants, Lovingier asserts that Fire Chief Lesher gave him no opportunity to
respond to the charges in the notice.
The Honorable Frank J. Magill, Senior Circuit Judge, United States Court of **
Appeals for the Eighth Circuit, sitting by designation.
-2- Lovingier appealed his termination to the City Manager, Lynette Hailey.
He moved for her recusal on grounds of partiality, but she declined to recuse
herself. After a postponement of the hearing, Hailey conducted post-termination
proceedings at which Lovingier was represented by counsel and had the
opportunity to call and cross-examine witnesses. In her findings, Hailey
concluded that Lesher “did not give Lovingier an opportunity to respond to the
allegations contained in the summary and did not give Brady Lovingier reasonable
time to prepare a response to the allegations,” in violation of the city’s policies.
Appellant’s App. at 55 (City of Black Hawk, Findings and Decision, July 1, 1996,
at 2). While Hailey ultimately sustained Lovingiers’ termination, to remedy the
injury resulting from the city’s failure to give Lovingier a proper termination
hearing, she ordered the city to pay him his regular salary from April 17, 1996,
the date of termination, to May 30, 1996, the date the post-termination hearing
was originally scheduled.
Asserting a violation of his Fourteenth Amendment right to due process,
Lovingier thereupon filed suit against the city and defendants-appellants Hailey,
Lesher and Meacham. The defendants filed a motion to dismiss, inter alia, the
due process claims, which the district court granted as to defendant City of Black
-3- Hawk and denied as to defendants Hailey, Lesher, and Meacham. 1 Appellants
now appeal the denial of their motion to dismiss Lovingier’s due process claims
on qualified immunity grounds.
II
We have jurisdiction to review interlocutory appeals of the denial of
qualified immunity “to the extent they resolve abstract issues of law.” Claton v.
Cooper , 129 F.3d 1147, 1152 (10th Cir. 1997); see also Behrens , 516 U.S. at 311.
Because this appeal challenges the denial of a motion to dismiss, we face only the
abstract issue of whether, taking plaintiff’s allegations as true, those allegations
defeat a claim of qualified immunity. See Tonkovich v. Kansas Bd. of Regents ,
159 F.3d 504, 517 (10th Cir. 1998). “We review de novo the denial of a motion
based on qualified immunity.” Id. at 516 (citing Walter v. Morton , 33 F.3d 1240,
1242 (10th Cir. 1994); Eastwood v. Dep’t of Corrections , 846 F.2d 627, 629 (10th
Cir. 1988)). 2
1 The parties do not appeal the district court’s resolution of defendants’ motions for dismissal or summary judgment on any of Lovingier’s other claims. 2 We agree with defendants that documents appended by Lovingier as exhibits to his complaint—most pertinently the notice of dismissal, a transcript of the tape recording of the termination conversation between Lesher and Lovingier, and Hailey’s July 1, 1996, Findings and Decision—are properly considered as parts of the complaint. Because the documents were submitted by plaintiff as exhibits to the complaint, they are properly considered as elements thereof. See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”); cf. Brown v. Zavaras, 63 F.2d 967, 969-70 (10th Cir. 1995) (holding that documents submitted by defendants as attachments to a motion to dismiss cannot be considered in evaluating a
-4- Applying this standard, we determine whether Lovingier’s complaint
alleged sufficient facts to withstand appellants’ motion to dismiss on the ground
that they enjoyed qualified immunity from Lovingier’s due process claim. We
have held that “[w]hen a defendant pleads qualified immunity, the plaintiff has
the heavy burden of establishing: (1) that the defendant’s actions violated a
federal constitutional or statutory right; and (2) that the right violated was clearly
established at the time of the defendant’s actions.” Greene v. Barret , 174 F.3d
1136, 1142 (10th Cir. 1999) (citation omitted). This is a sequential inquiry,
requiring that we determine first whether the plaintiff has alleged a deprivation of
a constitutional or statutory right, and only if we find such a deprivation alleged
do we turn to the question of whether the right at issue was clearly established.
See, e.g. , County of Sacramento v. Lewis , 523 U.S. 833, 118 S.Ct. 1708, 1714
n.5 (1998).
With regard to whether appellants violated Loviniger’s federal
constitutional or statutory rights, Lovingier insists the defendants violated his
Fourteenth Amendment right to due process because they terminated him without
an adequate opportunity to be heard. The Fourteenth Amendment provides that
motion to dismiss under Fed. R. Civ. P. 12(b)(6) and can only be considered if the motion is converted to a summary judgment proceeding pursuant to Fed. R. Civ. P. 12 and 56).
-5- there shall be no deprivation of “life, liberty, or property without due process of
law.” U.S. Const. amend. XIV.
It is undisputed that Lovingier suffered a deprivation of a property interest
as a result of his termination because he “possessed a legitimate claim of
entitlement to his continued employment as a firefighter with the City of Back
Hawk sufficient to invoke due process,” Appellants’ Br. at 18; see West v. Grand
County , 967 F.2d 362, 366 (10th Cir. 1992) (holding that a public employee has a
property right protected by the Fourteenth Amendment when that “person’s
employment can be terminated only for specified reasons”). The relevant
question for our review, therefore, is whether Lovingier was deprived his
legitimate entitlement to municipal employment without due process of law.
III
“Due process requires that plaintiff have had an opportunity to be heard at a
meaningful time and in a meaningful manner before termination. . . . ‘This
requirement includes three elements: 1) an impartial tribunal; 2) notice of charges
given a reasonable time before the hearing; and 3) a pretermination hearing,
except in emergency situations.’” Langley v. Adams County , 987 F.2d 1473,
1480 (10th Cir. 1993) (quoting Patrick v. Miller , 953 F.2d 1240, 1244 (10th Cir.
-6- 1992)). 3 Lovingier asserts that he was denied entirely a pretermination hearing,
and denied an impartial tribunal at his post-termination hearing.
A. Pretermination Hearing
The Supreme Court has held that the Due Process Clause requires “‘some
kind of a hearing’ prior to the discharge of an employee who has a
constitutionally protected property interest in his employment.” Cleveland Bd. of
Educ. v. Loudermill , 470 U.S. 532, 542 (1985) (quoting Board of Regents v.
Roth , 408 U.S. 564, 569-70 (1972)). “The pretermination ‘hearing,’ though
necessary, need not be elaborate.” Loudermill , 470 U.S. at 545. At a minimum, it
must provide the employee notice and an opportunity to respond. See id. at 546.
Lovingier argues that the pretermination process he received did not satisfy this
minimum, and the deficiency cannot be cured by the post-termination procedures
afforded him.
3 A plaintiff carries a heavy burden of proof arguing that he was not heard by an impartial tribunal at a pre-termination hearing. The mere showing that a supervisor or individual authorized to dismiss the employee actually conducted the pre-termination hearing is insufficient to establish bias. See West, 967 F.2d at 368 (finding that a meeting with the supervisor, who ultimately terminated the employee, provided “sufficient notice and opportunity to respond to satisfy the pretermination due process requirements”); Seibert v. Oklahoma, 867 F.2d 591, 598-99 (10th Cir. 1989) (finding that meetings with a foreman concerning plaintiff’s insubordination which led to foreman firing plaintiff were sufficient to satisfy constitutional requirements); but see Langley, 987 F.2d at 1480 (holding that “the person terminating plaintiff . . . was not an unbiased decisionmaker”). Rather, “a substantial showing of personal bias is required to disqualify a hearing officer or tribunal in order to obtain a ruling that a hearing is unfair.” Corstvet v. Boger, 757 F.2d 223, 229 (10th Cir. 1985).
-7- 1. Defendant Lesher
Lovingier claims that “when Defendant Fire Chief Lesher met with Plaintiff
on April 17, 1996 (date of termination), he merely handed Plaintiff the written
Notice of Dismissal without allowing Plaintiff the opportunity to respond to the
allegations or to exchange information with the Fire Chief.” (Appellant’s App. at
6.) This states a violation of the requirement clearly established by Loudermill ,
470 U.S. at 542. Even the City Manager’s decision found that Lesher did not give
Lovingier an opportunity to respond to the allegations contained in the summary
and reasonable time to prepare a response to the allegations. Thus Lovingier
states a claim that Lesher’s pretermination actions constituted inadequate
procedure even under the relatively lenient standards for a pretermination hearing.
See Loudermill , 470 U.S. at 545-46 . A brief, face-to-face meeting with a
supervisor can satisfy the pretermination due process requirements of Loudermill ,
provided that it affords some notice of and opportunity to contest the grounds for
termination. See Powell v. Mikulecky , 891 F.2d 1454, 1458 (10th Cir. 1989); see
also West , 967 F.2d at 368 (citing Powell , 891 F.2d at 1459); Seibert v. Univ. of
Oklahoma Health Sciences Ctr. , 867 F.2d 591, 598 (10th Cir. 1989).
Defendants argue that prior notice of the disciplinary infractions on which
Lovingier’s termination was based afforded him adequate pretermination process.
We disagree. Lovinger was terminated at the very moment he was given notice of
-8- the charges against him. The transcript of his termination reveals that Lesher
terminated him “effective immediately.” (Appellants’ App. at 49.) Thus, this
case is clearly unlike those cases in which an employee is given the duration of a
meeting, or even several days, to respond to charges before she is terminated.
See, e.g. , West , 967 F.2d at 368; Derstein v. State of Kansas , 915 F.2d 1410, 1413
(10th Cir. 1990) (finding adequate pretermination process where employee was
given notice of charges and “not terminated at the meeting but given ten days to
respond”). Lovingier merely had ten days to appeal following termination, not an
opportunity to respond prior to termination. Furthermore, unlike in Powell , 891
F.2d at 1459, Lovingier did not concede the grounds for termination, thereby
effectively waiving any opportunity to respond. Lovingier expressed some
confusion over the reasons for Lesher’s actions, but that does not rise to the level
of an admission of charges or waiver of opportunity to respond, in large part
because it occurred after he had been informed that he had already been
terminated. See id.
In Aronson v. Gressly , 961 F.2d 907, 909-10 (10th Cir. 1992), we
concluded that prior letters informing a public employee of charges of
absenteeism afforded her sufficient pretermination process. In Aronson , however,
it was undisputed that the letters in question explicitly informed the employee of
the “disciplinary measures, including termination” that might be taken against her.
-9- Id. at 910. Even taking into account the notice of termination attached to and
thereby incorporated in Lovingier’s complaint, Lovingier presents allegations that
he was not informed of the disciplinary measures, including termination, that
might be taken against him. The notice lists numerous alleged infractions, but
makes no showing that discipline for those infractions was accompanied by notice
equivalent to that before us in Aronson , 961 F.2d at 910. Furthermore, the
complaint does not indicate that anyone informed Lovingier prior to his
termination of the final two March 27, 1996 infractions discussed in the Notice of
Dismissal. The transcript of his termination conversation reveals Lovingier’s
considerable confusion as to which particular charges led to the disciplinary
action being taken against him. Cf. West , 967 F.2d at 368 (holding that prior
knowledge of intent to eliminate plaintiff’s job, combined with “several
pretermination opportunities to discuss her potential termination” and a two-hour
meeting with a supervisor to discuss the plaintiff’s potential termination and
rights under county policy, combined to provide her with constitutionally
adequate pretermination process). Lovingier’s complaint, read together with the
attached notice of dismissal, supports an inference that the final two infractions
were the proximate cause of his dismissal. Yet Lovingier contends he received no
notice of, or opportunity to dispute, those particular infractions prior to the
moment his termination became effective. We can only conclude that, under the
-10- standards for reviewing a motion to dismiss based on qualified immunity,
Lovingier’s complaint alleges that Lesher denied him the clearly established right
to “an opportunity to be heard at a meaningful time and in a meaningful manner
before termination.” Langley , 987 F.2d at 1480. The fact that our cases establish
that advance warnings and/or brief discussions at the pretermination meeting
itself may satisfy the pretermination hearing requirement of Loudermill does not
render any less clearly established the proposition that outright denial of any
opportunity to respond violates clearly established law.
Appellants also dispute whether, in light of Hailey’s award of backpay at
the post-termination hearing for the stated purpose of remedying the inadequacy
of the pretermination hearing, Lovingier suffered a deprivation of a property right
at all. In Workman v. Jordan , 32 F.3d 475, 479 (10th Cir. 1994), we found no
deprivation of a property right stemming from an allegedly inadequate
pretermination hearing where a public employee’s “procedurally adequate post[-
]termination hearing actually resulted in [the employee’s] reinstatement, together
with back pay for the constitutionally protected property interest in employment.”
The holdings of Workman , 32 F.3d 475, and Archuleta v. Colorado
Department of Institutions , 936 F.2d 483 (10th Cir. 1991), do not support
appellants’ argument. In those cases, we refused to review the adequacy of
challenged procedures on the grounds that the plaintiffs had suffered no
-11- deprivation of a property interest. See Workman , 32 F.3d at 479; Archuleta , 936
F.2d at 489-90. That finding of no deprivation, however, was founded on post-
termination proceedings that restored to the plaintiffs all their property rights.
See Workman , 32 F.3d at 479; Archuleta , 936 F.2d at 490. Here, although the
post-termination proceedings compensated Lovingier for the period between
termination and hearing, he was not reinstated. Considering the fact that he has
been deprived of his property interest in continuing employment we cannot say he
has suffered no deprivation of a property interest so as to foreclose review of the
adequacy of process he received. Cf. Dailey v. Vought Aircraft Co. , 141 F.3d
224, 231 (5th Cir. 1998) (noting that the Fifth Circuit has recognized that
“Loudermill clearly established that post-termination proceedings can satisfy due
process requirements only when coupled with adequate pretermination process in
public employment termination cases”).
While the award of back pay at the post-termination hearing, coupled with
the procedural adequacy of that hearing, see infra Section III.B, moot any claim
for back pay, reinstatement, or damages resulting from the ultimate termination
itself, they do not moot Loviniger’s claim entirely. As in Workman , Lovingier’s
complaint asserts a claim for “emotional damages.” (Appellant’s App. at 23.) In
Workman , we held that similar claims for “incidental losses” were mooted
because they did not “give rise to an independent protected property interest.” 32
-12- F.3d at 480 n.4 ( noting that “[o]ur authority to award these damages to a
successful § 1983 plaintiff is of no matter.”) Because Lovingier, unlike
Workman, has suffered a deprivation of a property interest that has not been
entirely eliminated by subsequent corrective action, and because appellants do not
challenge the district court’s authority to award incidental damages should
Lovingier’s defective pretermination hearing claim succeed, that claim is not
entirely moot.
2. Defendants Meacham and Hailey
42 U.S.C. § 1983 specifically requires an element of causation. See
Tonkovich , 159 F.3d at 518 (“a defendant may not be held liable under § 1983
unless he or she subjected a citizen to the deprivation, or caused a citizen to be
subjected to the deprivation”). Defendants Meacham and Hailey claim that
Lovingier alleges insufficient involvement on their part in his pretermination
proceedings to establish they caused him to be subjected to a deprivation of a
protected right.
Lovingier’s complaint alleges no involvement by defendant Hailey in the
decisions to terminate him and to provide him with inadequate pretermination
procedures. A general allegation that Hailey “was closely involved with the fire
administration in ongoing city wide matters,” Appellant’s App. at 13, is
insufficient to “articulate the clearly established constitutional right and the
-13- defendant’s conduct which violated the right with specificity.” Romero v. Fay , 45
F.3d 1472, 1475 (10th Cir. 1995). We have held that a defendant may be liable
for a due process violation under § 1983 when that defendant affirms a
procedurally inadequate termination decision and that defendant is in a
“position[] to ensure plaintiff received due process.” Langley , 987 F.2d at 1481
(citing Melton v. City of Oklahoma City , 879 F.2d 706, 731 (10th Cir. 1989),
overruled in part on reh’g en banc , 928 F.2d 920 (1991)). That situation,
however, differs from the facts alleged in this case. Lovingier raises no specific
and concrete allegations that Hailey was involved in, or responsible for, the
nature of Lovingier’s pretermination hearing or lack thereof. Langley and Melton
cannot be read to stand for the proposition that a defendant can be liable for a
deprivation of due process at a stage of the proceedings in which she had no
direct involvement when she, in her responsible capacity, recognized and
attempted to remedy the deprivation at a subsequent proceeding.
With respect to defendant Meacham, Lovingier alleges that Meacham
recommended his dismissal to defendant Lesher. The complaint makes no
particularized allegation that Meacham participated in the decision to terminate
Lovingier without a hearing. Therefore, while Lovingier’s complaint reasonably
supports an inference that Meacham played a causal role in the decision to initiate
Lovingier’s termination, it alleges no facts that would support an inference that
-14- Meacham played a causal role in the distinct decision to execute that termination
without a hearing. Absent such particularized allegations, the complaint fails to
state a claim against Meacham for the alleged denial of pretermination process.
See Langley , 987 F.2d at 1479 (holding that generalized assertions that
defendants violated rights, absent allegations of “specific actions by each
defendant that violated [plaintiff’s] rights,” fail to support denial of qualified
immunity). Although Lovingier alleges additional actions by Meacham with
regard to the post-termination hearing, those actions are not relevant to his
involvement or lack thereof in the initial denial of pretermination process.
Recommending an employee’s discharge, without more, does not render a
defendant responsible for his superior’s decision to execute that discharge without
a proper hearing.
B. Post-termination Hearing
“When the pretermination process offers little or no opportunity for the
employee to present his side of the case, the procedures in the post-termination
hearing become much more important.” Benavidez v. Albuquerque , 101 F.3d
620, 626 (10th Cir. 1996). Lovingier’s allegations of constitutionally inadequate
post-termination process arise out of the contention that defendants failed to
provide him with an impartial tribunal. Impartiality of the tribunal is an essential
element of due process. See Withrow v. Larkin , 421 U.S. 35, 46-47 (1975). We
-15- have held, however, that “a substantial showing of personal bias is required to
disqualify a hearing officer or tribunal in order to obtain a ruling that a hearing is
unfair.” Corstvet v. Boger , 757 F.2d 223, 229 (10th Cir. 1985). A complaint that
contains only “conclusory allegations of bias, without alleging factual support” is
insufficient to make this showing. Tonkovich , 159 F.3d at 520. The person who
terminates a public employee does not constitute an unbiased decisionmaker for
due process purposes. See Langley , 987 F.2d at 1480.
In confronting a similar claim—that university hearing committee members
were not impartial decisionmakers because of their employment by the university
which took adverse action against the plaintiff—we held that “while the Due
Process Clause certainly requires a hearing before an impartial tribunal, [the
plaintiff] has pointed to no law, clearly established or otherwise, that procedural
due process includes a right to professional hearing officers or hearing officers
not employed by the governmental body or agency taking the adverse action.”
Tonkovich , 159 F.3d at 519-20. Therefore, the allegation that defendant Hailey,
in her capacity as City Manager, “was closely involved professionally with the
Fire Chief,” Appellant’s App. at 11, was insufficient to make the “substantial
showing” necessary to disqualify a hearing officer for personal bias. Corstvet ,
757 F.2d at 229.
-16- Lovingier also alleges that ex parte discussions between Meacham and
Hailey created an issue of “Defendant Hailey’s potential bias.” (Appellant’s App.
at 12.) At the post-termination hearing, Hailey volunteered that she had
“previously engaged in ex parte discussions with the Assistant Fire Chief
concerning the underlying basis for Plaintiff’s discharge and the procedures
utilized.” (Appellant’s App. at 12.) At the hearing, Assistant Fire Chief
Meacham testified, to the contrary, that he had not previously spoken to Hailey
about the case.
An ex parte communication, in itself, does not automatically establish that
an adjudicator “abandoned the impartial judicial role.” J.B. v. Washington
County , 127 F.3d 919, 926 (10th Cir. 1997). Mere speculation that an ex parte
communication may have influenced a decision is insufficient to invalidate that
decision. See West , 967 F.2d at 370. In light of Hailey’s disclosure of the ex
parte communication, we conclude that Lovingier has not pleaded sufficient
specific facts to overcome the presumption of “honesty and integrity on the part
of a tribunal,” Mangels v. Pena , 789 F.2d 836, 838 (10th Cir. 1986), and to
support an inference of bias or abandonment of impartiality on the part of Hailey. 4
4 Lovingier’s assertion that the process was tainted by his alleged inability to call Hailey as a witness for purposes of impeaching Meacham’s denial of ex parte contact is puzzling. Since he concedes that Hailey herself disclosed this communication, she was obviously fully aware of its impeaching value, and we see no due process violation in the alleged difficulty of calling her as a witness.
-17- Because Lovingier has not pleaded sufficient facts to sustain a claim of
partiality, and because Lovingier does not otherwise contest the adequacy of the
post-termination proceedings, we conclude that he has alleged no constitutional
violation with respect to those proceedings. Qualified immunity should therefore
be granted to all defendants as to the post-termination hearings.
IV
The decision of the district court is AFFIRMED as to defendant Lesher
with respect to the pretermination hearing and REVERSED as to defendants
Meacham and Hailey on all claims and as to defendant Lesher with respect to the
post-termination hearing.
ENTERED FOR THE COURT
Carlos F. Lucero Circuit Judge
-18-