                                                                              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         This order and judgment is not binding precedent, except under the doctrines of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-
