                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
            ___________

            No. 02-2492
            ___________

James D. Gibson,                       *
                                       *
             Appellant,                *
                                       *
      v.                               *
                                       *
Caruthersville School District No. 8;  *
Gearl Adams, President; Mike Hazel; *
James Moore, Treasurer; Jean Dodd;     *    Appeals from the United States
P. G. Maners; Joe Parkinson; Rogers    *    District Court for the
Vanausdall; Olin Parks, Superintendent *    Eastern District of Missouri.
of Caruthersville Schools; Lewis       *
Bradley Coleman, Principal             *
Caruthersville High School; Todd       *
Porter, Assistant Principal            *
Caruthersville High School,            *
                                       *
             Appellees.                *
             ___________

            No. 02-2493
            ___________

James D. Gibson,                        *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Caruthersville School District No. 8;   *
Gearl Adams, President; Mike Hazel;     *
James Moore, Treasurer; Jean Dodd;       *
P. G. Maners; Joe Parkinson; Rogers      *
Vanausdall; Olin Parks, Superintendent   *
of Caruthersville Schools; Lewis         *
Bradley Coleman, Principal               *
Caruthersville High School; Todd         *
Porter, Assistant Principal              *
Caruthersville High School,              *
                                         *
           Appellants.                   *
           ___________

           No. 03-1572
           ___________

James D. Gibson,                       *
                                       *
             Appellee,                 *
                                       *
      v.                               *
                                       *
Caruthersville School District No. 8;  *
Gearl Adams, President; Mike Hazel; *
James Moore, Treasurer; Jean Dodd;     *
P. G. Maners; Joe Parkinson; Rogers    *
Vanausdall; Olin Parks, Superintendent *
of Caruthersville Schools; Lewis       *
Bradley Coleman, Principal             *
Caruthersville High School; Todd       *
Porter, Assistant Principal            *
Caruthersville High School,            *
                                       *
             Appellants.               *




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                                    ___________

                              Submitted: April 15, 2003

                                   Filed: July 18, 2003
                                    ___________

Before WOLLMAN, FAGG, and RILEY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

        Following a bench trial on James Gibson’s 42 U.S.C. § 1983 due process claim
against Caruthersville School District No. 8 (the District), several District officials,
and school board members, the district court awarded Gibson one dollar in nominal
damages and ordered the District to complete the termination hearing it had begun “so
that Gibson may attempt to clear his name.” In No. 02-2492, Gibson appeals the
district court’s finding that he was not entitled to a hearing as to his non-renewal and
its failure to award compensatory or punitive damages. In No. 02-2493, the District
cross-appeals, contending that the district court erred by concluding that Gibson was
entitled to complete the termination hearing on his 1999-2000 teaching contract. In
No. 03-1572, the District appeals the award of attorney’s fees to Gibson.

      Having consolidated the appeals for purposes of decision, we now affirm in
No. 02-2492 and reverse in No. 02-2493, concluding that the District satisfied the
requirements of the Due Process Clause with respect to Gibson’s termination and
non-renewal. Because Gibson is no longer a prevailing party and thus not entitled to
attorney’s fees and costs, we reverse in No. 03-1572.




                                          -3-
                                           I.

       Gibson was hired by the District as a probationary teacher and coach for the
1997-1998 school year. The District employed Gibson pursuant to a one-year
contract that was renewed for the 1998-1999 and the 1999-2000 school years. In
November 1999, the District sought to terminate Gibson’s contract after he allegedly
assaulted a student. In a letter dated November 22, 1999, the District suspended
Gibson with pay, alleging that Gibson had “grabbed a student by the throat, pushed
him into the wall, and threatened to strike him with [his] fist[, and] . . . displayed
threatening, intimidating, erratic and/or potentially violent behavior toward and in the
presence of District Personnel, manifested by yelling, raised or clenched hands,
cursing, rage and other threatening and aggressive gestures.” The letter advised
Gibson that he was entitled to a hearing, an attorney, to testify on his own behalf, to
present witnesses and documents, to cross-examine witnesses, and to seek judicial
review of an adverse decision. The letter further stated that Superintendent Olin
Parks would recommend to the board that Gibson be terminated. A second letter
dated November 30, 1999, alleged two additional grounds supporting Gibson’s
termination: insubordinate behavior in failing to respond to repeated requests for
grade sheets, and material misrepresentations on his job application regarding his
previous employment.

      Pursuant to school board policy, Gibson requested a public hearing, which
began on January 18, 2000. The District presented and Gibson cross-examined eight
witnesses. Because of the late hour, the hearing was adjourned until February 3,
2000. On February 2, Gibson asked that the hearing be continued until February 24
because of a death in his family. Before the hearing was resumed, Gibson rejected
the District’s offer to pay him through the end of the school year, contingent upon his
signing a release and agreeing to terminate the hearing. The offer letter stated that
Gibson’s teaching contract would not be renewed for the 2000-2001 school year and,
because a probationary teacher has no right to such a renewal, the offer likely

                                          -4-
exceeded what he could receive in a lawsuit. During January and February, the
allegations against Gibson were publicized in newspapers and in pamphlets. In
addition, news spread through word-of-mouth after several student and staff
interviews were conducted. More than 100 people attended each hearing.

       Gibson and his attorney met with the District’s attorney immediately prior to
the start of the February 24, 2000, continued hearing and were told by him that he
was going to recommend that the school board close the hearing during the testimony
of two students due to perceived intimidation by other students, members of the
community, and Gibson. After objecting to this proposal, Gibson and his attorney
met with the two students and their parents and were told that the students were not
intimidated and that they were comfortable testifying in the open hearing. Gibson’s
attorney related this information to the District’s attorney, who nevertheless
maintained his stance that the hearing be closed during the students’ testimony,
offering instead to “proceed with the hearing over [Gibson’s] objection, close it for
the receipt of testimony from those two witnesses and then have the rest of the
hearing open, or we can adjourn the hearing . . . while you . . . seek a writ of
prohibition from our local judge requiring us to have the hearing open for receipt of
all the testimony.” Gibson’s attorney then objected to the proposed closure on the
record, informing the school board what the student witnesses had told him. Upon
learning that the board intended to close the meeting, Gibson’s attorney told the board
that he wished to continue the hearing so that he could seek a writ of prohibition in
the Circuit Court of Pemiscot County, Missouri, compelling the board to keep open
the hearing.

       Gibson filed such a petition on March 10. On March 9, however, the school
board had met and voted not to renew Gibson’s teaching contract for the following
school year, offering as reasons Gibson’s failure to follow district procedures in
purchasing equipment and making travel arrangements. Despite these stated reasons,
the district court found that the true reason that the board did not renew Gibson’s

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contract was because it considered him to be insubordinate, volatile, erratic, and
potentially abusive to the students. At the end of the school year, the District
declared Gibson’s termination hearing moot, as his contract had expired and he had
been paid in full for the entire school year. Gibson dismissed his petition for writ of
prohibition on July 12, 2000.

                                          II.

       In an appeal from a judgment entered following a bench trial, we review the
district court’s factual findings for clear error and its conclusions of law de novo.
Speer v. City of Wynne, 276 F.3d 980, 984-85 (8th Cir. 2002). Gibson contends that
the District violated his Fourteenth Amendment right to due process by denying him
a hearing concerning his non-renewal and by failing to complete the termination
hearing that began on January 18, 2000. We address the two claims together.

       “A government employee is entitled to . . . due process only when he has been
deprived of a constitutionally protected property or liberty interest.” Winegar v. Des
Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899 (8th Cir. 1994). Any claim of a
property interest in employment must be grounded in state law. Id. Under Missouri
law, “a probationary teacher has a property interest in employment only for the
remainder of the school year for which he or she has a contract.” Smith v. King City
Sch. Dist., 990 S.W.2d 643, 646 (Mo. Ct. App. 1998). Missouri law provides “no
right to renewal . . . and no property interest in renewal arises.” Id. Although the
District’s initiation of termination proceedings during the 1999-2000 school year
implicated a property interest in that year’s employment contract, Gibson was never
terminated and, in fact, was paid everything that he was due under his 1999-2000
contract. Consequently, neither the District’s failure to complete the termination
hearing nor its failure to hold a non-renewal hearing implicated a property interest of
which Gibson could not be deprived without due process.


                                         -6-
       The Due Process Clause protects against deprivations of liberty interests as
well as property interests. When a governmental employer makes statements in
connection with an employee’s termination or non-renewal that seriously damage the
employee’s good name, the employee may be entitled to a due process hearing at
which he is given an opportunity to rebut the allegations and clear his name. Shands
v. City of Kennett, 993 F.2d 1337, 1347 (8th Cir. 1993) (citing Board of Regents of
State Colleges v. Roth, 408 U.S. 564, 573-74 (1972)).

     To establish his entitlement to a “name-clearing hearing,” the aggrieved
employee must show that:

      1) the public employer’s reasons for the discharge stigmatized the
      employee by seriously damaging his standing and association in the
      community or by foreclosing employment opportunities that may
      otherwise have been available; 2) the public employer made the reason
      or reasons public; and 3) the employee denied the charges that led to the
      employee’s firing.

Speer, 276 F.3d at 984. The requisite stigma has been found when the allegations
involve “dishonesty, immorality, criminality, racism, or the like.” Waddell v. Forney,
108 F.3d 889, 895 (8th Cir. 1997).

      The district court found that the school board terminated Gibson because it
considered him to be “insubordinate, volatile, erratic, and potentially abusive to the
students.” In light of the evidence of Gibson’s subsequent difficulty in finding
employment, we agree that the allegations, which included charges that he had
assaulted and threatened students, were sufficiently stigmatizing to implicate
Gibson’s liberty interests. See Winegar, 20 F.3d at 899 (finding “allegations of
unjustified child abuse . . . sufficiently stigmatizing to a teacher’s reputation, honor,
and good name in the community to implicate liberty interests”). Despite the
undisputed evidence that Gibson, not the District, wanted the hearings held in public,

                                          -7-
the attendance of between 100 and 250 people at the hearings indicates the already
widespread knowledge of and interest in the allegations against Gibson. We
concluded in Winegar that the publication requirement is satisfied when the
allegations are spread as a result of the school district’s investigation. Winegar, 20
F.3d at 899 n.3. By presenting eight of its witnesses at the public hearing on January
18th, 2000, the District further publicized the allegations against Gibson. Gibson has
denied all allegations, save the charge that he made false statements on his job
application regarding his employment history. Because Gibson’s non-renewal was
based upon the same stigmatizing allegations for which the termination hearing was
initiated, his due process right to an opportunity to clear his name arose from both the
non-renewal and the incomplete termination hearing.

       On February 24, 2000, Gibson received the opportunity to clear his name to
which he was entitled under the Fourteenth Amendment. Gibson’s contention that
he was given an all-or-nothing choice between closing the remainder of the hearing
to the public or going to court to force the school board to hold the entire hearing
open to the public is belied by the record. The stipulation of facts entered into by the
parties states that “[the District’s attorney] requested the school board to close the
hearing for receiving testimony of two students.” This stipulation parallels the
testimony of the District’s attorney. Although it would be a very different case had
the District presented the bulk of its evidence in a public hearing and then closed that
portion of the hearing during which Gibson presented his rebuttal, that is not the
situation before us. Gibson was given the opportunity to rebut the allegations in an
open meeting, closed only during the time the testimony of the two student witnesses
was to be received. The Due Process Clause requires no more. See Coleman v. Reed,
147 F.3d 751, 755 (8th Cir. 1998). Although it is a matter of dispute whether the
students were in fact intimidated to the point of altering their testimony, we have
accorded school officials substantial discretion in matters regarding the safe operation
of schools. See Golden v. Anders, 324 F.3d 650, 654 (8th Cir. 2003).



                                          -8-
       Gibson was free to argue in state court that his ability to clear his name
depended upon hearing the testimony of the two students in public. He petitioned the
appropriate court to do just that. Notably, neither the District nor Gibson suggested
the possibility of proceeding with the other witnesses without waiting for a state court
ruling regarding the two student witnesses. Until the school year ended, Gibson had
a property interest in his employment contract. When the end of the school year
arrived, mooting his property interest, Gibson had not yet presented his argument to
the state court. After discussing the apparent mootness of his petition with the
District, Gibson voluntarily dismissed the petition for writ of prohibition on July 12,
2000. We conclude that because Gibson was given an opportunity to clear his name,
an opportunity that he failed to pursue or to preserve when he continued the
termination hearing and then did not pursue to conclusion his state court petition, he
is entitled to no further relief.

       That portion of the judgment which denies a hearing on Gibson’s non-renewal
and denies his claim for compensatory and punitive damages is affirmed. That
portion of the judgment which awards nominal damages and a name-clearing hearing
is reversed, as is the order awarding attorney’s fees, expenses, and costs.

RILEY, Circuit Judge, concurring in part and dissenting in part.

      I concur with the majority in affirming the district court’s denial of a non-
renewal hearing and its denial of compensatory and punitive damages. However,
because I would affirm the entire judgment, including the award of nominal damages,
equitable relief, and attorney fees, I respectfully dissent.

      The majority concludes the District provided Gibson with ample opportunity
to clear his name but Gibson squandered the opportunity by continuing the
termination hearing and by failing to pursue a conclusion to his state court petition.



                                          -9-
I believe the majority draws its conclusion without factual support and without
finding clear error below.

       The majority rejects what can be reasonably inferred from the facts: the
District had no intention of giving Gibson the opportunity to tell his side of the story,
and used available procedural means to effectuate its goal. Following the opening
hearing round, the District tried to obtain a settlement and a release from Gibson.
When that attempt failed, the District closed a critical portion of the public hearing.
When Gibson resisted and filed a petition for writ of prohibition to keep the hearing
open, the school board voted against renewing Gibson’s teaching contract, knowing
Missouri law does not require non-renewal hearings for probationary teachers. Once
the school year ended, the District advised Gibson’s attorney that the termination
issue was moot and completion of the hearing was unnecessary.

       The court below made no finding that Gibson failed to prosecute his petition
for writ of prohibition. The district court found Gibson’s attorney dismissed the
petition only after the District conveyed its unequivocal intention not to reconvene
the hearing, and upon discovery that only a court with equitable powers could compel
completion of the hearing. Under these circumstances, pursuing a ruling on the
petition would have been futile. A writ would have prohibited the District from
closing a future hearing. A writ would not have compelled the District to reconvene
and complete the hearing.

      The Supreme Court has declared “the right to procedural due process is
‘absolute’ in the sense that it does not depend upon the merits of a claimant’s
substantive assertions, and because of the importance to organized society that
procedural due process be observed [and] . . . the denial of procedural due process [is]
actionable for nominal damages without proof of actual injury.” Carey v. Piphus, 435
U.S. 247, 266 (1978) (citations omitted). Our court has construed the holding in
Carey to “entitle a plaintiff to nominal damages for a failure to hold a due process

                                          -10-
hearing prior to termination even if the charges were true.” Hogue v. Clinton, 791
F.2d 1318, 1322 (8th Cir. 1986). Denial of procedural due process also entitles a
plaintiff to attorney fees. Id. at 1323. By depriving Gibson of the opportunity to
openly challenge and refute the charges leveled against him, the District violated
Gibson’s right to procedural due process, thereby entitling Gibson to recover nominal
damages and attorney fees, even if the stigmatizing charges were true and Gibson
proved no actual injury. See Pollock v. Baxter Manor Nursing Home, 716 F.2d 545,
546-47 (8th Cir. 1983).

       The district court also granted Gibson a name-clearing hearing. The Supreme
Court recognizes a delayed Roth hearing as a remedy for a denial of due process
based on the loss of a protected liberty interest. Codd v. Velger, 429 U.S. 624, 625
n.1 (1977) (per curiam) (“Respondent’s amended complaint did not seek a delayed
Roth hearing to be conducted by his former employer at which he would have the
opportunity to refute the charge in question.”) (citing Bd. of Regents v. Roth, 408
U.S. 564, 573 (1972)). In his original pro se complaint, Gibson specifically asked for
a “Due Process Hearing.” A claimant’s right to a name-clearing hearing “does not
depend on a demonstration of certain success.” Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 544 (1985); see also Carey, 435 U.S. at 266 (ultimate
outcome of hearing is irrelevant); Pollock, 716 F.2d at 546-47. While I doubt the
District’s procedural due process violation can be cured at this late stage, the district
court did not abuse its discretion in granting equitable relief.

       “A [party] who has been denied an opportunity to be heard in his defense has
lost something indispensable.” Snyder v. Massachusetts, 291 U.S. 97, 116 (1934).
Due process demands more than an uncompleted, one-sided hearing. Due process
requires “the opportunity to be heard ‘at a meaningful time and in a meaningful
manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v.
Manzo, 380 U.S. 545, 552 (1965)). The District deprived Gibson of the opportunity



                                          -11-
to respond to and refute the charges leveled against him, and otherwise clear his
name. Gibson is entitled to a fair and completed hearing.

      Because the right to procedural due process is absolute and actionable without
proof of actual injury, I would affirm the district court in its entirety.

      A true copy.

            Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                       -12-
