
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1113                                   RUSSELL COTNOIR,                                Plaintiff - Appellee,                                          v.                             UNIVERSITY OF MAINE SYSTEMS                             AND GEORGE CONNICK, ET AL.,                               Defendants - Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                _____________________               Paul  W.  Chaiken, with  whom Brett  D.  Baber and  Rudman &               _________________             ________________      ________          Winchell were on brief for appellants.          ________               Joseph M. Jabar, with whom John P. Jabar and Daviau, Jabar &               _______________            _____________     _______________          Batten were on brief for appellee.          ______                                 ____________________                                  September 13, 1994                                 ____________________                    TORRUELLA, Circuit Judge.   Plaintiff-appellee  Russell                               _____________          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                                  _____________________                    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-                                                                     ______          Rodr guez  v. Betancourt-Lebr n, 14 F.3d  87, 89 (1st Cir. 1994).          _________     _________________          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                                        - 2 -          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                                        - 3 -                      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                                        - 4 -          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                                         ________                    A.  Jurisdiction                    A.  Jurisdiction                                        - 5 -                    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.                         _______________                           _____          Collins, 898  F.2d 284,  285 (1st  Cir.  1990)) (other  citations          _______          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,                                      ______    _____________          22 (1st Cir. 1989), cert. denied, 493 U.S. 1078 (1990) (citations                              ____________          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,          ______    _____                                     ____________          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,                                        - 6 -                      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                                                                ______          F.2d at  752 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 255                               ________    _____________          (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                                                            ___ ______          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,                                           _____    ________          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                                        ____________________          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                                 ___  _______    ____          (1st Cir. 1988).                                        - 7 -          known."   Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Hoffman                    ______    __________                            _______          v. Reali,  973 F.2d 980, 985 (1st Cir. 1992); Amsden, 904 F.2d at             _____                                      ______          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          _______________                           _______    ______          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          ___ ______                       _______     _______________          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                                                                        ___          generally  Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972);          _________  ________________    ____          Amsden, 904  F.2d at 752.  Cotnoir was a tenured professor at the          ______          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,                                     ___ _____    __________                                        - 8 -          601 (1972);  Collins, 894  F.2d at 478;  Newman, 884  F.2d at  19                       _______                     ______          (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                                ___  ______                     ______          F.2d  at 23.   Procedural  due process  is  a "guarantee  of fair          procedure."   Amsden, 904 F.2d at 753 (quoting Zinermon v. Burch,                        ______                           ________    _____          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.          ______                             _________     _____          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                      ___ _____________________________     __________          U.S. 532, 542 (1985); Collins, 894 F.2d at  480; Newman, 884 F.2d                                _______                    ______          at 23l;  Brasslett v. Cota,  761 F.2d 827,  836 (1st Cir.  1985).                   _________    ____          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                                              __________          (citations omitted); Brasslett, 761 F.2d at 836.                               _________                    E.  The Process Afforded Cotnoir                    E.  The Process Afforded Cotnoir                                        - 9 -                    The dictates of Loudermill squarely control the present                                    __________          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,                                        ____________________          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                                  __          except by the fact finder in the trial court.                                        - 10 -          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                                                            __________          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                                                                        ___          any  proposed action the officials intend to take, based on those          charges.  See Loudermill, 470 U.S. 543-46.                     ___ __________                      [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                              ___                      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).          __          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).                    __                                        - 11 -                    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                                                                      _____          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                                        - 12 -          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                                         _____________ _______          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                               __  ______    ______          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                                  _________          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                         __________          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                                        - 13 -          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 -                                                                   ________          Mel ndez  v.  Aponte-Roque, 829  F.2d  255, 263  (1st  Cir. 1987)          ________      ____________          (citing  Schultz v. Baumgart, 738 F.2d 231, 237 (7th Cir. 1984)),                   _______    ________                                        - 14 -          cert.  denied,  486  U.S.  1044  (1988).    Thus,  even  where  a          _____________          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,                               ___ __________                    _________          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                              ________________          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.                    ________                                        - 15 -
