                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          AUG 14 2000
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    GERALD MESSINA,

                Plaintiff-Appellant,

    v.                                                   No. 99-1380
                                                     (D.C. No. 97-D-2085)
    CITY OF FEDERAL HEIGHTS,                               (D. Colo.)
    a municipal corporation, and
    ROGER TINKLENBERG, in his
    official capacity as City Administrator
    of the City of Federal Heights,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before HENRY and BRISCOE, Circuit Judges, and ALLEY, Senior District
Judge. **



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the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.
**
       The Honorable Wayne E. Alley, Senior District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case has

therefore been ordered submitted without oral argument.

      Plaintiff Gerald Messina appeals an adverse decision of the district court

following a nonjury trial of claims under 42 U.S.C. § 1983 and state law arising

from plaintiff’s discipline as an employee of defendant City of Federal Heights,

Colorado. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

                                 Standard of Review

      Plaintiff urges three propositions: (1) he was denied due process as a

matter of law because the decision maker’s status as an at-will municipal

employee furnished the decision maker a pecuniary interest in the outcome;

(2) the district court applied an incorrect legal standard, requiring direct proof of

actual bias by the decision maker; and (3) the district court improperly engaged in

de novo review of evidence underlying the disciplinary decision.

      Each of plaintiff’s appellate contentions alleges legal error in the district

court’s decision. We review questions of law de novo. State of Utah v. Babbitt,

53 F.3d 1145, 1148 (10th Cir. 1995). As plaintiff does not dispute any factual

finding, we utilize the district court’s statement of facts below.

                         Factual and Procedural Background

      Messina brought suit to challenge disciplinary action taken against him in

June 1997 while he was a sergeant in the City’s police department. Based on


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supported allegations of sexual harassment and unprofessional conduct, Messina

was demoted two levels in rank and suspended 21 days without pay. The decision

was made by City Administrator Roger Tinklenberg following a hearing at which

he presided. Before the hearing, Tinklenberg had participated in the investigation

of pending charges against Messina. Also, on a prior occasion, Tinklenberg had

caused the modification of a counseling statement issued against plaintiff on other

claims of harassment by a former police officer. On that occasion, Tinklenberg

intervened in Messina’s favor to eliminate some of the more pointed portions of

the statement.

      The City is a municipal corporation with approximately 70 employees,

including 30 members of the police department. Tinklenberg was duly appointed

as city administrator and was acting in his official capacity with regard to

disciplinary matters. Messina held a full-time position in classified service

beginning in 1981 and continuing through the time of trial.

      In his pleading, plaintiff asserted due process claims under 42 U.S.C.

§ 1983 and a supplemental claim under a Colorado law that authorizes judicial

review of certain administrative decisions, Colo. R. Civ. P. 106. It is undisputed

that plaintiff had a property interest in his employment guaranteed by the Due

Process Clause of the Fourteenth Amendment. There also is no question that his

discipline was accompanied by requisite procedural protections, namely, adequate


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information about the charges, notice of the hearing, legal representation, and an

opportunity to call and cross-examine witnesses. At trial, the sole claim

presented was that plaintiff was denied procedural due process because he was

not provided an unbiased, impartial decision maker in the disciplinary proceeding.

      The district court conducted a two-day trial during which testimony and

other evidence were received. The trial judge orally announced a decision in

defendants’ favor at the conclusion of trial. Written findings and conclusions

were subsequently issued pursuant to Fed. R. Civ. P. 52, and a judgment was

entered pursuant to Fed. R. Civ. P. 58. This appeal timely followed.

                                     Discussion

A.    Per Se Disqualification of City Administrator

      Messina contends that Tinklenberg’s status as an at-will municipal

employee who served at the pleasure of the city council resulted in a potential

personal economic interest in deciding the disciplinary case adversely to Messina.

This argument purportedly rests on evidence that Tinklenberg felt pressure to

avoid embarrassment to the City associated with sexual harassment claims. This

pressure, plaintiff argues, created a conflict of interest that prevented Tinklenberg

as a matter of law from serving as an unbiased decision maker with respect to

plaintiff’s discipline.




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      Messina cites no legal authority for the proposition that a decision maker’s

status as an at-will employee of a municipality creates a pecuniary interest, even

indirectly, in the outcome of a disciplinary proceeding against another employee.

We have previously stated that procedural due process does not include a right to

“hearing officers not employed by the governmental body or agency taking the

adverse action.” Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 519 (10th

Cir. 1998). Instead, plaintiff’s conflict-of-interest argument hinges on a

contention that Tinklenberg’s superiors, the city council, had expressed interest in

plaintiff’s case or in harsh treatment of employees accused of sexual harassment.

Plaintiff provides only one citation to the appellate record in support of his

argument that the city council had previously communicated to Tinklenberg any

particular view of sexual harassment claims. (Aplt. Br. at 11-12.)

      We have reviewed the cited testimony of Tinklenberg given during the trial

of this case, as well as the remainder of his statements on the subject, and find

plaintiff’s reference to be incomplete and misleading. The cited testimony

consists only of examination of Tinklenberg by plaintiff’s counsel concerning

prior statements made during his deposition. Plaintiff’s counsel sought to obtain

an admission from Tinklenberg that at the time of his hiring, the city council was

concerned about publicity that had been generated by a lawsuit brought by a

female former police officer who raised allegations of sexual harassment. When


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allowed to explain, Tinklenberg testified that the adverse publicity referred to in

his deposition actually was generated by an incident where the police and fire

chiefs were accused of drinking on the job. The deposition transcript mistakenly

interchanged the names of the sexual harassment complainant and the news

reporter who covered the drinking incident. (Aplt. App., vol. 3, Tr. at 58-59.)

      Moreover, Messina argues facts contrary to the district court’s findings,

which are unchallenged on appeal. The district court expressly found:

             Plaintiff has argued that there was a predetermined desire by
      the City Council of Federal Heights to avoid any further episodes or
      incidents involving sexual harassment, and that Mr. Tinklenberg
      knew or should have known that his job was in jeopardy unless he
      singled out and focused discipline on Mr. Messina. Those
      allegations are unfounded based on the evidence. . . . There was no
      credible evidence on this record to suggest that Mr. Tinklenberg was
      predisposed to treat Officer Messina in a special way because of the
      handling of the [prior sexual harassment] incident or because of any
      message [Tinklenberg] had received from City Council in connection
      with his hiring. . . .

(Aplt. App., vol. 1 at 121.) We have reviewed the appellate record for trial

evidence regarding these findings, despite plaintiff’s failure to expressly

challenge them, and deem them unassailable under the clearly erroneous standard.

See Fed. R. Civ. P. 52(a).

      In short, Messina lacks a factual basis for his argument that the city council

exerted pressure on Tinklenberg to deal harshly with employees accused of sexual

harassment or with plaintiff in particular. Therefore, we reject the contention that


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Tinklenberg’s employment status created a bias or economic interest that

prevented him from serving as a neutral decision maker.

B.    The Proper Rule of Decision

      Messina asserts that the district court held him to an improper standard of

proof and erroneously required him to demonstrate actual, subjective bias on

Tinklenberg’s part. Plaintiff argues that the proper question was whether he

demonstrated a substantial likelihood that, viewed objectively, a person in

Tinklenberg’s position could not serve as a neutral adjudicator.

      The correct standard, as announced in our prior cases, is stated in the

district court’s decision:

             7.     The legal test which this Court must apply in rendering
      its decision are [sic] set forth in Mangels v. Pena, 789 F.2d 836 (10th
      Cir. 1986) and Hicks v. City of Watonga, 942 F.2d 737 (10th Cir.
      1991). . . .


             8.     . . . [T]he court in Mangels v. Pena, supra, noted:

             “An impartial tribunal is an essential element of a due
             process hearing . . . . A tribunal is not impartial if it is
             biased with respect to the factual issues to be decided at
             the hearing.” . . . However, “[t]he mere exposure to
             evidence presented in nonadversary investigative
             procedures is insufficient in itself to impugn the
             fairness” of a later adversary hearing. . . . Due process
             is violated only when “the risk of unfairness is
             intolerably high” under the circumstances of a particular
             case. Because honesty and integrity are presumed on the
             part of a tribunal, . . . there must be some substantial
             countervailing reason to conclude that a decisionmaker

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             is actually biased with respect to factual issues being
             adjudicated . . . .

      Id. at 838 (citations omitted).

             9.     The Tenth Circuit, in Hicks v. City of Watonga, supra,
      further provides that: “Fairness of course requires an absence of
      actual bias in the trial of cases. . . . The Supreme Court has held that
      a person claiming bias on the part of an administrative tribunal must
      overcome a presumption of honesty and integrity in those serving as
      adjudicators.” Id. at 746 (citations omitted). Again, citing Withrow
      v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 1464 (1975) the Tenth
      Circuit noted: “Due process is violated only when ‘the risk of
      unfairness is intolerably high’ under the circumstances of a particular
      case.”

(Aplt. App., vol. 1 at 119-20.)

      We conclude that the district court fairly applied this standard in analyzing

Messina’s claim of bias. Contrary to plaintiff’s position, the trial court did not

reject his claim due to a lack of evidence of subjective bias by Tinklenberg. The

court instead examined evidence of various circumstances alleged by plaintiff to

create an intolerable risk of unfairness. In addition to the one discussed above

(pressure from the city council), the district court considered prior dealings

between Tinklenberg and plaintiff, Tinklenberg’s involvement in the initiation

and investigation of the disciplinary complaint, and the manner in which

Tinklenberg conducted the disciplinary hearing.

      After careful review of the lower court’s decision, we find unsupported

Messina’s contention that the court “erred in looking beyond the objective


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circumstances to Tinklenberg’s subjective state of mind.” (Aplt. Br. at 19.) We

conclude that the district court applied the correct legal standard and that the

evidence fully supports the judge’s conclusion that plaintiff failed to prove an

unacceptably high risk of unfairness on Tinklenberg’s part.

C.    Improper Review of the Substantive Decision

      Messina argues that “the district court improperly engaged in a de novo

review” of the evidence in support of the city administrator’s decision and relied

on this review to conclude that, because the decision reached was substantively

appropriate, the decision maker was not biased. (Aplt. Br. at 20.) We reject this

characterization of the district court’s survey of evidence supporting the

discipline imposed. The district court neither undertook an independent

evaluation of the disciplinary charges against plaintiff nor, as plaintiff contends,

rejected his procedural due process claim on grounds of “no harm, no foul.”

(Reply Br. at 10.) Instead, the trial judge’s inquiry into the substantive basis of

plaintiff’s discipline addressed arguments urged by Messina at trial as evidence of

Tinklenberg’s bias. Because plaintiff thus invited a substantive inquiry into his

discipline, it was not improper under the circumstances.

       First, the district court addressed an attack by Messina on the quality of

the hearing conducted by Tinklenberg, including the nature of the evidence

presented. A review of the appellate record reveals that plaintiff’s complaints


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about Tinklenberg’s service as the hearing officer and decision maker included

that Tinklenberg had participated in the investigation, that the City did not present

testimony of witnesses at the hearing, and that Tinklenberg instead relied on a

written record of the investigation that included summaries of witness interviews

he had conducted. (Aplt. App., vol. 1 at 16-17, 19, 20, 46-47, 62.) A fair reading

of the district court’s decision is that these complaints were rejected as evidence

of bias, in part, because plaintiff’s hearing testimony alone provided sufficient

evidence to sustain Tinklenberg’s decision. The judge found that plaintiff had not

raised a sufficient inference of bias in connection with the hearing primarily

because “the majority of the adverse findings that were made by Mr. Tinklenberg,

as they relate to the conduct of Officer Messina, were based solely on what

[Messina] said he did.” (Aplt. App., vol. 3, Tr. at 352.) Similarly, after

discussing plaintiff’s testimony at the disciplinary hearing, the judge concluded:

      [T]hrough . . . the plaintiff’s own words in the disciplinary
      proceeding, he provided ample evidence upon which the finder of
      fact could have reached any number of conclusions including
      termination. Again, the Court is not commenting on whether or not
      the ultimate result was fair or unfair, but what the Court will make a
      finding is based on the transcript of the hearing, that there was no
      demonstration of actual bias on the part of Mr. Tinklenberg such that
      it would render his result unconstitutional.

(Aplt. App., vol. 3, Tr. at 354.) Thus, one purpose of the trial court’s substantive

inquiry was to address plaintiff’s contention that Tinklenberg’s decision was

based on insufficient or incompetent evidence. In the context of evaluating the

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manner in which the hearing was conducted, we find no legal error in this

analysis.

      Second, the appellate record reveals a complaint by Messina at trial that the

decision reached was flawed because the punishment imposed was arbitrary and

excessive. (Aplt. App., vol. 1 at 19, 20, 44-45, 63; vol. 3, Tr. at 84, 173-75.) To

the extent that the district court considered plaintiff’s trial testimony, it was to

emphasize the seriousness of the misconduct to which Messina had confessed:

      Messina further admitted that it wasn’t a proper thing for him to have
      allowed [a female subordinate] to expose her breasts to him between
      200 and 300 times in the workplace without doing something about
      it. And in response to questions as to why he didn’t report her
      conduct to a supervisor or take some direct action against her, he said
      one of the main reasons he didn’t do that was that he was having an
      intimate sexual relationship with her.

(Aplt. App., vol. 3, Tr. at 353-54.) That Messina would allow his personal sexual

relationship with a subordinate employee to interfere with proper workplace

behavior or discipline simply provided further evidence that plaintiff had shown

himself ill-suited to a supervisory position and that demotion was an appropriate

employment action.

       In sum, under the circumstances presented, the district court examined

relevant facts and evidence in its search for proof of bias by Tinklenberg and

reached a reasoned decision that plaintiff had not carried his burden to overcome




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the presumption of honesty and integrity. On the appellate record presented, we

find no reversible error.

                                    Conclusion

      Therefore, the judgment of the United States District Court for the District

of Colorado is AFFIRMED.

                                                   ENTERED FOR THE COURT


                                                   WAYNE E. ALLEY
                                                   Senior District Judge




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