Toby J. Sutton v. Patricia Bailey

United States Court of Appeals

For the Eighth Circuit

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No. 12-1276

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Toby J. Sutton

lllllllllllllllllllll Plaintiff - Appellee

v.

Patricia Bailey, Individually & in Official Capacity as Vice-Chancellor of

Academic & Student Affairs; Kellie Thomas, Individually & in Official Capacity

as Director of Instruction

lllllllllllllllllllll Defendants - Appellants

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Appeal from United States District Court

for the Eastern District of Arkansas - Jonesboro

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Submitted: October 3, 2012

Filed: December 3, 2012

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Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

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LOKEN, Circuit Judge.

Toby J. Sutton commenced this lawsuit after he was terminated as a Funeral

Science Director at Arkansas State University -- Mountain Home. He asserted

procedural due process claims under 42 U.S.C. § 1983 against Vice-Chancellor

Patricia Bailey and Director-of-Instruction Kellie Thomas in their official and

individual capacities, alleging they provided constitutionally inadequate pre-

termination process and seeking damages and injunctive relief. Bailey and Thomas

(collectively “Appellants”) appeal the district court’s denial of qualified immunity on

these individual-capacity damage claims.1 Reviewing the denial of qualified

immunity de novo and the record in the light most favorable to Sutton, we conclude

that reasonable school officials would not have known that Appellants’ conduct

violated Sutton’s clearly established due-process rights and therefore reverse. See

Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir. 2007) (standard of review).

I.

In May 2010, Sutton entered into a nine-month contract with the University to

serve as a Funeral Science Director for the 2010-11 academic year. The contract

provided that Sutton could be terminated at any time “for adequate cause.” On

November 2, 2010, Sutton received an email from Bailey’s assistant asking him to

attend a meeting the following day but not disclosing the subject of the meeting. The

next day, Sutton met with Appellants and a Human Resources Department

representative. Bailey presented Sutton with a statement that had been posted on his

Facebook page in June 2010: “Toby Sutton hopes this teaching gig works out. Guess

I shouldn’t have cheated through mortuary school and faked people out. Crap!”

After reading the statement aloud, Bailey told Sutton he was fired. Sutton

asked if it mattered that the statement was a joke. Bailey said, “No.” Sutton then

asked if it mattered that he had posted the statement before he began teaching. Bailey

replied, “Not really.” Bailey then handed Sutton an Employee Counseling Statement,

1

Sutton also asserted state-law breach of contract and whistleblower claims

against the University and Appellants. The district court dismissed those claims. The

court also denied Appellants summary judgment on the official-capacity § 1983

claims for injunctive relief. These issues are not raised in this interlocutory appeal.

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which she had already signed. The one-page form stated that Sutton was being

dismissed for a June 2010 Incident of “Academic Fraud and unprofessional conduct.”

Next to a heading titled “Supervisor Statement,” the form stated: “Mr. Sutton posted

material on Facebook indicating he had ‘cheated’ his way through mortuary school.

There are multiple other class related issues.” Bailey told Sutton he had “the

opportunity to make a statement” before signing the form. Sutton declined and

signed the form without further comment. Sutton’s employment benefits did not end

until after that meeting.

The University has adopted a six-step Faculty Grievance Procedure, which

provides that, upon receiving a grievance, the Faculty Grievance Committee must

“1) study the written complaint, 2) take testimonies from concerned parties,

3) examine relevant files and/or documents, and 4) either recommend that the

grievance be dismissed or recommend a remedy.” A party dissatisfied with the

Committee’s decision may appeal to the Chancellor of the University. Sutton knew

this grievance procedure existed, but chose not to use it, opting instead to file this

lawsuit.2

II.

When state law grants a public employee a property right in continued

employment, as in this case, “he may not be discharged from his job without due

process.” Riggins v. Bd. of Regents of the Univ. of Neb., 790 F.2d 707, 710 (8th Cir.

2

Sutton’s Complaint alleged that, shortly after commencing employment, he

became concerned that prior lapses in compliance could cause the Funeral Science

program to lose its accreditation with the American Board of Funeral Science

Education. He was terminated the day after being told that records he sought from

Appellants could not be found. These allegations were the basis of his state-law

whistleblower claims.

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1986).3 The Supreme Court held in Cleveland Board of Education v. Loudermill, 470

U.S. 532, 545-46 (1985), that the Due Process Clause requires a pre-termination

hearing in some form, but if a post-termination hearing is also available, the pre-

termination proceedings “need not be elaborate. . . . 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.” The

primary purpose of this type of pre-termination hearing is not to “definitively resolve

the propriety of the discharge,” but to serve as “an initial check against mistaken

decisions . . . .” Id. at 545. Following Loudermill, we have consistently held that,

where post-termination proceedings are available, “informal meetings with

supervisors” may be sufficient pre-termination hearings. Schleck v. Ramsey Cnty.,

939 F.2d 638, 641 (8th Cir. 1991), quoting Riggins, 790 F.2d at 711; accord Krentz

v. Robertson Fire Prot. Dist., 228 F.3d 897, 902-03 (8th Cir. 2000).

Appellants are entitled to qualified immunity unless their conduct violated

“clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For these

purposes, a right is “clearly established” if the “contours of the right [are] 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). Qualified immunity

“depends upon the objective reasonableness of [the alleged misconduct] as measured

by reference to clearly established law.” Schleck, 939 F.2d at 641(quotations

omitted). We have jurisdiction to consider interlocutory appeals of the denial of

qualified immunity “when they resolve a dispute concerning an abstract issue of law

relating to qualified immunity -- typically, the issue whether the federal right

3

Under Arkansas law, a public employee who may only be terminated for cause

has a property interest protected by the Due Process Clause. See Griffin v. Erickson,

642 S.W.2d 308, 310 (Ark. 1982).

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allegedly infringed was ‘clearly established.’” Behrens v. Pelletier, 516 U.S. 299, 313

(1996) (citations and quotations omitted).

Sutton claims that Appellants violated his right to procedural due process by

failing to provide an adequate pre-termination hearing. The qualified immunity

question, then, is “whether the ‘contours’ of the pretermination procedural due

process rights announced in [Loudermill], and applied in lower court cases

interpreting that decision, were ‘sufficiently clear’ that a reasonable official would

understand that terminating [Sutton] without a more elaborate hearing than that which

he received violated those procedural rights.” Powell v. Mikulecky, 891 F.2d 1454,

1457 (10th Cir. 1989). The district court concluded that it “cannot conclude as a

matter of law that Sutton was provided with sufficient pre-termination process”

because the University’s post-termination grievance procedure may not be

“constitutionally adequate.” Appellants are therefore not entitled to qualified

immunity, the court concluded, because “supervising faculty members at a state

university should be familiar with the due process requirements stated in” our post-

Loudermill decisions. We disagree with this cryptic qualified immunity analysis.

Sutton’s informal November 2010 meeting with Appellants included the

essential elements of the minimal pre-termination hearing required by Loudermill and

our later cases. Appellants provided Sutton oral notice of the charge and the

employer’s evidence against him when Bailey read his June 2010 Facebook statement

aloud. Sutton admitted to posting the statement, obviating the need for Appellants

to provide further evidence that he was guilty of the alleged misconduct. Sutton was

afforded an opportunity to present his side of the story and informed Appellants that

the statement was a joke and that he posted it before he began teaching. When given

the Employee Counseling Statement, he declined to comment further.

On appeal, Sutton argues he received inadequate notice of the charges because

he was not told the meeting would concern his termination. We have rejected the

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contention that there “must be a delay between the ‘notice’ and the ‘opportunity to

respond’ accorded to a public employee.” Coleman v. Reed, 147 F.3d 751, 754 (8th

Cir. 1998). The informal meeting in this case was similar to the meeting conducted

in Powell, 891 F.2d at 1459-60, cited approvingly in Coleman and in Schleck. Sutton

asserts that it was unreasonable for Appellants “to actually believe that Sutton cheated

his way through mortuary school.” But that is an attack on the merits of the decision

to terminate, not on the adequacy of the pre-termination procedure.

Sutton further argues that Appellants failed to explain at the meeting, and give

him an opportunity to respond, to the “other class related issues” referred to on the

Employee Counseling Statement. But the Statement clearly stated the “Incident” in

question occurred in June 2010, before Sutton began teaching, a clear reference to the

Facebook posting. Sutton was given the Statement before the meeting ended and

declined to make a further statement before he signed the form. We have repeatedly

observed that an employer need not disclose “all the details of the charges against the

employee.” Larson v. City of Fergus Falls, 229 F.3d 692, 697 (8th Cir. 2000), citing

Schleck, 939 F.2d at 642. Therefore, reasonable officials would not have understood

that they must explain subsidiary employment issues that were vaguely alluded to

before terminating Sutton, when he chose not to pursue those issues.

Sutton also complains that the pre-termination meeting was not “meaningful”

because the decision to terminate him was made before the meeting took place. “Due

process . . . does not require predecision hearings. It only requires an opportunity to

be heard prior to the termination of benefits.” Jackson v. St. Joseph State Hosp., 840

F.2d 1387, 1391 (8th Cir.) (emphasis added), cert. denied, 488 U.S. 892 (1988).

Here, the pre-termination meeting was timely, and it served as the initial check

against mistaken decisions that Loudermill requires. Even if Appellants decided to

terminate Sutton before the meeting occurred, they might well have reconsidered had

he persuasively denied responsibility for the Facebook posting.

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Sutton further suggests he was denied pre-termination due process because

Appellants were biased decisionmakers due to his discovery of deficiencies in the

Funeral Science program. An impartial decisionmaker is not required at the pre-

termination stage so long as the employee has access to post-termination proceedings

before an impartial adjudicator. See Locurto v. Safir, 264 F.3d 154, 174 (2d Cir.

2001) (collecting cases); Duchesne v. Williams, 849 F.2d 1004, 1008 (6th Cir. 1988)

(en banc) (post-termination proceedings “serve to ferret out bias, pretext, deception

and corruption by the employer in discharging the employee”). Appellants’

participation in the pre-termination meeting did not violate Sutton’s clearly

established due-process rights, as he had the opportunity to contest the termination,

and level his charges of bias and pretext, by invoking the University’s internal post-

termination grievance procedures.

Finally, Sutton contends that he received inadequate pre-termination process

because the University’s post-termination grievance procedures were constitutionally

inadequate. Sutton waived the right to complain about the adequacy of the post-

termination procedures by not invoking those procedures. See, e.g., Krentz, 228 F.3d

at 904; Riggins, 790 F.2d at 711-12; Demming v. Hous. & Redev. Auth., 66 F.3d 950,

953-54 (8th Cir. 1995). It is true that “failure to exhaust postdeprivation remedies

does not affect [an employee’s] entitlement to predeprivation process.” Christiansen

v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 936 (8th Cir. 2012), quoting Keating

v. Neb. Pub. Power Dist., 562 F.3d 923, 929 (8th Cir. 2009). It is also true that “the

existence of post-termination procedures is relevant to the necessary scope of

pretermination procedures.” Loudermill, 470 U.S. at 547 n.12.

But the issue here is qualified immunity from Sutton’s claims of inadequate

pre-termination process. Appellants were aware of the University’s grievance

procedures, but they were not responsible for their adequacy. Appellants provided

Sutton the essential elements of the pre-termination hearing Loudermill and our cases

applying Loudermill required. It was reasonable for them to assume that Sutton, if

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he wished to contest the termination, would file a grievance and that the grievance

procedures would comport with the minimum post-termination procedures that the

Due Process Clause mandates. “Qualified immunity gives government officials

breathing room to make reasonable but mistaken judgments, and protects all but the

plainly incompetent or those who knowingly violate the law.” Messerschmidt v.

Millender, 132 S. Ct. 1235, 1244-45 (2012) (internal quotations omitted). Whether

the University’s post-termination process was so inadequate that due process required

more than an informal pre-termination hearing is an uncertain issue that turns on “a

balancing of the competing interests at stake” in a particular case. Loudermill, 470

U.S. at 542. Because the constitutional adequacy of post-termination procedures

therefore cannot be assessed in a vacuum, the possible inadequacy of the post-

termination procedures Sutton failed to invoke cannot, as a matter of law, be a proper

basis for denying qualified immunity from individual-capacity damage claims based

entirely on the alleged inadequacy of the pre-termination process the decision-makers

provided.

For the forgoing reasons, we conclude that Patricia Bailey and Kellie Thomas

are entitled to the defense of qualified immunity from all § 1983 individual-capacity

damage claims asserted in Toby Sutton’s Complaint. The district court’s order dated

January 13, 2012, is reversed in part, and the case is remanded for further proceedings

not inconsistent with this opinion.

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