                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         OCT 23 2003
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    BRIAN KELLY,

               Plaintiff-Appellee-
               Cross-Appellant,

    v.                                           Nos. 02-6331 and 02-6339
                                                (D.C. No. CIV-01-1267-HE)
    INDEPENDENT SCHOOL DISTRICT                        (W.D. Okla.)
    NO. 12 OF OKLAHOMA COUNTY,
    OKLAHOMA,

               Defendant-Appellant,


         and

    VICKI SIMPSON, individually and in
    her official capacity,

               Defendant-
               Cross-Appellee.


                           ORDER AND JUDGMENT           *




Before EBEL , PORFILIO , and McCONNELL , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases

are therefore ordered submitted without oral argument.

       In this 42 U.S.C. § 1983 action, defendant-appellant Independent School

District No. 12 of Oklahoma County, Oklahoma (School District) appeals the

district court’s entry of summary judgment in favor of plaintiff-appellee Brian

Kelly on his procedural due process claim. Kelly cross-appeals the district

court’s entry of summary judgment in favor of defendant Vicki Simpson on his

procedural due process claim on the basis of qualified immunity. Our jurisdiction

arises under 28 U.S.C. § 1291. We affirm the order entered by the district court

on August 7, 2002 and the amended judgment entered by the district court on

August 15, 2003 in all respects.   See Aplt. App. at 192-99; R., No. 55 at 1-3.


                                           I.

       Kelly was employed by the School District as a high school teacher for the

2000-01 school year. Simpson was the principal at the high school where Kelly

taught. In addition to entering into an employment contract pertaining to his

teaching position, Kelly and the School District entered into a separate contract

entitled “Certified Extra Duty Assignment Contract” (Contract).     See Aplt. App.

at 75. Under the terms of the Contract, Kelly was assigned the extra duties of

                                          -2-
head football coach and assistant wrestling coach for the 2000-01 school year, and

he was to be paid a total of $9,778 for performing the coaching duties.      Id. The

Contract further provided that the School District “reserves the right to terminate

this extra duty assignment and the compensation for such assignment: a. Without

notice at any time for cause; or b. On 30 calendar days written notice to Employee

without cause.”   Id.

       On October 30, 2000, a referee ejected Kelly from a junior varsity football

game for alleged misconduct. Because of his alleged misconduct during the

game, the School District terminated Kelly’s coaching assignments “for cause,”

and without any prior notice, on October 31, 2000.     1
                                                           Despite the termination, the

School District paid Kelly all of the compensation it had agreed to pay him under

the Contract for the football coaching assignment. The School District also paid

Kelly a pro rata portion of the compensation it had agreed to pay him for the

wrestling coaching assignment.




1
       The parties have interchangeably referred to both October 31 and
November 1, 2000 as Kelly’s termination date. In their appellate briefs, both
sides assert that October 31, 2000 was Kelly’s termination date, and we will
assume that Kelly was terminated on that date. Further, while there is evidence in
the record indicating that the School District initially only suspended Kelly from
his coaching assignments, with his actual termination not occurring until
November 29, 2000, the parties have in effect stipulated that the termination
occurred on October 31, 2000. We will accept the parties’ stipulation since the
date of termination is not material to the issues raised by these appeals.

                                            -3-
      In July 2001, Kelly filed a petition in state court against the School District

and Simpson under 42 U.S.C. § 1983, alleging that they terminated him from his

coaching assignments without notice or a hearing, and that his termination was in

violation of his right to procedural due process under the Fourteenth Amendment.

Kelly also alleged that the School District breached the terms of the Contract by

terminating him without proper cause.   2
                                            The School District and Simpson

removed Kelly’s state-court case to the United States District Court for the

Western District of Oklahoma. After both sides filed motions for summary

judgment, the district court: (1) entered a judgment in the amount of $10,000 in

favor of Kelly and against the School District on Kelly’s procedural due process

claim; 3 (2) entered a judgment for a reasonable attorney’s fee in the amount of

$25,000 in favor of Kelly and against the School District based on the parties’

stipulation that Kelly was the prevailing party on the procedural due process

claim for purposes of 42 U.S.C. § 1988; (3) entered a judgment in favor of

Simpson on Kelly’s procedural due process claim on the basis of qualified

immunity; and (4) denied the School District’s motion for summary judgment

2
       In his state-court petition, Kelly also asserted First Amendment and tortious
interference claims. In response to defendants’ motion for summary judgment,
Kelly confessed judgment in favor of defendants on the First Amendment and
tortious interference claims, and they are not at issue in these appeals.
3
      Although defendants have denied liability with respect to Kelly’s
procedural due process claim, they have stipulated that Kelly incurred damages in
the amount of $10,000 for purposes of his procedural due process claim.

                                            -4-
with respect to Kelly’s breach of contract claim. The court subsequently

dismissed the breach of contract claim without prejudice based on an agreement

of the parties.


                                            II.

       “We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.”       Simms v. Okla.

ex rel. Dep’t of Mental Health & Substance Abuse Servs.         , 165 F.3d 1321, 1326

(10th Cir. 1999). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, 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). “When applying this standard, we view the evidence and

draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.”     Simms , 165 F.3d at 1326.

       It is undisputed that the School District relied exclusively on the “[w]ithout

notice at any time for cause” provision in the Contract when it terminated Kelly’s

coaching assignments. It is also undisputed that the School District did not

provide Kelly with a post-termination hearing.     4
                                                       As a result, the dispositive issue


4
       Kelly does not dispute that he received a constitutionally adequate
                                                                      (continued...)

                                            -5-
in these appeals is a legal one, and it is whether the Contract granted Kelly

a property interest in his coaching assignments that is protected by the Due

Process Clause of the Fourteenth Amendment such that Kelly was entitled to

a post-termination hearing.   See Calhoun v. Gaines , 982 F.2d 1470, 1473,

1476-77 (10th Cir. 1992) (holding that “[a] public employee faced with

termination is entitled to procedural due process if he or she can demonstrate that

such termination implicates a property interest protected by the Due Process

Clause,” and that “in cases where the pretermination [hearing] is less elaborate, a

full-blown, adversarial post-termination hearing, held at a meaningful time, is

necessary to determine the ultimate propriety of the discharge”).

      In Calhoun , this court recognized that

      a public employee may acquire a constitutionally protected property
      right in continued employment. Such a property right derives from
      that employee’s legitimate claim of entitlement to continued
      employment, which arises from independent sources such as state
      laws, rules or understandings that secure benefits to employees. This
      Court has previously noted that such independent sources may
      include: a state or federal statute; a municipal charter or ordinance;
      an express or implied contract; a written contract with tenure
      provisions; or a contract “implied” from policies and practices of a
      particular institution.

Id. at 1473-74 (citations omitted). We have also recognized, however,



4
 (...continued)
pretermination hearing. See Aplt. App. at 24, 159. Consequently, the adequacy
of the pretermination hearing is not at issue in these appeals.

                                         -6-
         that procedural protections alone do not create a claim of entitlement
         to continued public employment. Rather, a legitimate claim of
         entitlement to continued public employment arises only when there
         are substantive restrictions on the ability of the employer to terminate
         the employee.

Kingsford v. Salt Lake City Sch. Dist.      , 247 F.3d 1123, 1129-1130 (10th Cir.

2001).

         The district court began its analysis of the property interest issue by

distinguishing the cases the School District was relying on to support its “claim

that, because [Kelly’s] coaching duties were considered an ‘extra-duty

assignment,’ he had no legitimate claim of entitlement to those duties under

Oklahoma law.” Aplt. App. at 194. The district court distinguished the cases on

the ground that they involved teachers who were seeking to renew expired

coaching assignments based on property interests that were allegedly created by

state statutes.   Id. at 194-95 (discussing and distinguishing   Maupin v. Indep. Sch.

Dist. No. 26 of Ottawa County , 632 P.2d 396 (Okla. 1981),       Lancaster v. Indep.

Sch. Dist. No. 5 , 149 F.3d 1228 (10th Cir. 1998), and      Mindemann v. Indep. Sch.

Dist. No. 6 of Caddo County , 771 P.2d 996 (Okla. 1989)). By contrast, Kelly is

claiming a property interest in his coaching assignments based on an express

contract that: (1) was still in effect at the time of his termination; and

(2) specifically restricted the ability of the School District to terminate his

coaching assignments.      Id. at 195-96.


                                              -7-
       After distinguishing the cases relied on by the School District, the district

court concluded that Kelly “had, under the facts of this case, a legitimate property

interest in continued employment during the balance of the contract term.”           Id. at

194. The court based its conclusion on the fact that the “[C]ontract restricted the

[School] District’s ability to terminate [Kelly’s] coaching duties during its term

unless the termination was for cause or upon thirty days notice.”      Id. at 196.

Thus, according to the district court, Kelly “was entitled to . . . a post-termination

hearing to determine whether the cause alleged for his firing was supported by

sufficient evidence,” and the School District’s “failure to grant [Kelly] a post-

termination hearing denied [Kelly] his constitutional right to procedural due

process.” Id.

       We agree with the district court that     Maupin , Lancaster , and Mindemann

are distinguishable and do not dictate the result in this case. We also agree that,

under the specific circumstances of this case, Kelly had a property interest in his

coaching assignments and was therefore entitled to a post-termination hearing.

As support for this holding, we adopt the reasoning of the Ninth Circuit in      FDIC

v. Henderson , 940 F.2d 465 (9th Cir. 1991).

       In Henderson , a bank employee was terminated for cause without a hearing

pursuant to an employment contract that provided for termination at will, subject

to a ninety-day notice requirement, or, alternatively, termination for cause, with


                                               -8-
no notice requirement.    Id. at 470, n.8. The bank subsequently brought an action

against the employee for money due and to recover on several loans.           Id. at 470.

In response to the bank’s action, the employee asserted a counterclaim under 42

U.S.C. § 1983 against a state banking official who was involved in his

termination, claiming, among other things, that he was deprived of a property

interest in his continued employment without due process of law as a result of the

official’s actions.   Id. at 467, 470, 474. Although the Ninth Circuit affirmed the

entry of summary judgment in favor of the state official on the ground that he was

entitled to qualified immunity, it concluded that the employee had been deprived

of a property interest without due process.         Id. at 475-77. As the court explained:

              [Defendant] argues that, because [plaintiff’s] contract
       contained an at-will provision, it gave rise to no protected property
       interest. We think this interpretation of [plaintiff’s] contract is too
       simplistic. It is true that the contract contains an at-will provision,
       but that provision required that [plaintiff] be given ninety days notice
       if he was to be terminated pursuant to it. In a very real sense, then,
       this was a conditional at-will provision, one that could only be
       exercised if accompanied by the requisite notice.

              That is not to say, however, that [plaintiff’s] contract was a
       for-cause employment contract. Instead, [plaintiff] had a hybrid
       contract that combined a for-cause provision with a conditional
       at-will provision. As such, it only gave rise to a “legitimate claim of
       entitlement” to ninety days of continued employment. Each day
       during his tenure with [the Bank], the Bank had the option of giving
       [plaintiff] notice, and ninety days after receiving such notice,
       [plaintiff] had no legally cognizable property interest in continued
       employment. Put another way, [plaintiff] could only be terminated
       within that ninety-day period for cause; after that period, his contract
       gave rise to no protected property interest.

                                              -9-
Id. at 476.

      Likewise, we conclude in this case that, based on the termination provisions

in the Contract, Kelly had a legitimate claim of entitlement to thirty days of

continued employment with respect to his coaching assignments, and that, unless

and until the School District gave the required thirty days prior notice and the

thirty-day period expired, the coaching assignments could be terminated only for

cause. Consequently, we agree with the district court that the School District

violated Kelly’s right to procedural due process by failing to grant him a post-

termination hearing. Accordingly, we affirm the district court’s entry of summary

judgment in favor of Kelly and against the School District on the procedural due

process claim.

      Finally, even though we have concluded that Kelly’s right to procedural due

process was violated, Simpson is nonetheless entitled to qualified immunity if she

can establish that her conduct in denying Kelly a post-termination hearing did not

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

person would have known.”     Smith v. Cochran , 339 F.3d 1205, 1211 (10th Cir.

2003) (quotation omitted). On this issue, we agree with the district court that,

“based on the state of the law as discussed” in the district court’s order, “it would

[not have been] clear to a reasonable [Oklahoma] school official, such as

defendant Simpson, that her conduct in terminating [Kelly’s] extra-duty coaching


                                         -10-
assignment[s] without a hearing was unlawful.” Aplt. App. at 197. Thus, we

agree with the district court that Simpson is entitled to qualified immunity on

Kelly’s procedural due process claim, and we affirm the entry of summary

judgment in favor of Simpson.

      The order entered by the district court on August 7, 2002 and the amended

judgment entered by the district court on August 15, 2003 are AFFIRMED.


                                                    Entered for the Court


                                                    John C. Porfilio
                                                    Circuit Judge




                                        -11-
