Atencio v. Board of Ed. of Penasco Independent School Dist. No. 4

• Decision Date: 08 September 1981
• Docket Number: No. 4,No. 78-1851,D,4,78-1851
• Citation: 658 F.2d 774
• Parties: Victor B. ATENCIO, Plaintiff-Appellee, v. BOARD OF EDUCATION OF PENASCO INDEPENDENT SCHOOL DISTRICT NO. 4; Candido Mascarenas, George Maestas, Pat Martinez, Wilfred Gallegos, Juan Martinez and Marcel Torres, individually and as members of the Board of Education of Penasco Independent School Districtefendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 774

658 F.2d 774

Victor B. ATENCIO, Plaintiff-Appellee, v. BOARD OF EDUCATION OF PENASCO INDEPENDENT SCHOOL DISTRICT NO. 4; Candido Mascarenas, George Maestas, Pat Martinez Wilfred Gallegos, Juan Martinez and Marcel Torres individually and as members of the Board of Education of Penasco Independent School District No. 4, Defendants-Appellants.

No. 78-1851.

United States Court of Appeals Tenth Circuit.

Argued Nov. 29, 1979.

Decided Sept. 8, 1981.

C. Emery Cuddy, Jr., Santa Fe, N. M. (Sumner S. Koch of White, Koch, Kelly & McCarthy, Santa Fe, N. M., was on the brief), for defendants-appellants.

Steven L. Tucker of Jones, Gallegos, Snead & Wertheim, P. A., Santa Fe, N. M., for plaintiff-appellee.

Jeff Bingaman, Atty. Gen. of N. M., and John F. Kennedy, Asst. Atty. Gen. of N. M., Santa Fe, N. M., on the brief, for the New Mexico State Board of Education, amicus curiae.

Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff Victor B. Atencio brought this action under 42 U.S.C. § 1983 against the Board of Education of Penasco Independent School District No. 4 ("the Local Board") and its members. Atencio alleged that his discharge from his position as superintendent of the school district violated his constitutional right to procedural due process. After a non-jury trial the district court entered judgment for plaintiff for $27,965.65 as damages under his employment contract, minus any amounts he might earn from July 24, 1978, the date of judgment, to June 30, 1979, the date on which Atencio's employment contract with the Local Board was to terminate. Plaintiff was also awarded $5,000 in attorneys' fees.

Defendants appeal. Among other things they argue that New Mexico law afforded Atencio due process within the meaning of the Fourteenth Amendment and that he therefore failed to allege or establish any claim for relief under § 1983. We must agree and accordingly reverse and remand for dismissal for failure to establish the federal claim.

I

Atencio, who had previously worked in the Penasco schools as a teacher and coach, was employed by the Local Board as superintendent on November 1, 1975. At the time of his discharge he was working under a two-year contract which ran from July 1, 1977, to June 30, 1979. The contract provided that he could be discharged during its term only for cause. (Pl. Ex. 2). At a meeting on November 23, 1977, the Local Board voted to suspend Atencio from his duties as superintendent with pay. On March 3, 1978, he was served with a notice of discharge, setting a hearing date and specifying 12 causes for discharge. ¹

Pursuant to N.M.Stat.Ann. § 77-8-16 (1953 Comp.) ² an informal hearing was held before the Local Board on March 9, 1978. At the hearing Gilbert Duran, the acting superintendent, testified in support of Atencio's discharge. Duran was the sole witness. Atencio was represented by counsel who cross-examined Duran. Atencio had the right to present evidence but he did not do so. The Local Board voted to discharge Atencio and issued a written decision. (Pl.Ex. 8). The discharge was effective March 11, after which Atencio received no further compensation.

Atencio then filed a notice of appeal to the New Mexico State Board of Education ("the State Board") pursuant to N.M.Stat.Ann. § 77-8-17. ³ A hearing examiner was appointed by the State Board and a hearing

was scheduled. However, this action was then filed in the district court and it appears that as a result no hearing was ever held by the State Board. ⁴

II

Atencio does not contend that the hearing afforded him by the Local Board or the further hearing and appeals procedures available under New Mexico law are constitutionally inadequate. ⁵ The basis for his claim is that his discharge was premised on his allegedly unsatisfactory work performance and that he was denied the conference procedures required in such cases by N.M.Stat.Ann. § 77-8-18, as implemented by the State Board's Regulation No. 77-1. The regulation provides that prior to the issuance of notice of discharge to an employee for unsatisfactory work performance, an employee is entitled to two conferences with his immediate supervisor and an opportunity to correct his unsatisfactory work performance. ⁶ This state law requirement, Atencio alleges, created a property interest, and his discharge in the absence of the requisite conference procedures constituted a violation of his federal constitutional rights.

Defendants, on the other hand, assert that Atencio has not stated or established a federal cause of action. Although they concede that Atencio had a property interest in retention of his job during the term of his contract, they argue that the issues of compliance with state-mandated procedures and existence of grounds for discharge were decided by the Local Board. Given the fairness of the proceedings before the Local Board and the available statutory review procedures, the fact that the Local Board's conclusions might have been erroneous either as a matter of fact or as a matter of state law does not give rise to a federal claim. Defendants say there was evidence The district court agreed with Atencio that the statute and regulation prescribing the conference procedures created in plaintiff a property right within the meaning of the Fourteenth Amendment in not being discharged without compliance with them. The court held that each of the charges brought against Atencio alleged unsatisfactory work performance and that there was no basis for a finding that he was incapable of performing his job or that he had wilfully refused to obey a valid rule, regulation or policy. It was further determined that the conference procedures were not complied with. ⁸ The court concluded that failure to comply with the state statute and regulation deprived Atencio of his due process rights under the Fourteenth Amendment and awarded damages for lost pay and attorneys' fees.

before the Local Board from which it properly concluded that Atencio was guilty of unsatisfactory work performance, insubordination or incompetency; and that discharge for the latter two causes does not require conference procedures under Regulation No. 77-1. See also New Mexico Board of Education Findings of Fact, Conclusions of Law and Decision in Marquez v. Board of Education, I R. 155-57. Moreover, defendants contend that in any event Atencio was provided with two conferences. ⁷

III

Atencio relies in large part on this court's unpublished decision in Quintana v. Archuleta, Nos. 72-1358 and 72-1359 (10th Cir., Feb. 6, 1973). Quintana was an untenured New Mexico school principal whose contract was not renewed. We held that the then-current State Board regulations required that three conferences be held with untenured personnel prior to service of notice of termination for unsatisfactory work performance. ⁹ Without any prior conferences the local school board notified Quintana that he would not be reemployed as a principal. As our Quintana opinion stated, p. 3: "The Board gave (Quintana) no reason for his termination as principal and denied his request for a hearing."

We upheld the district court's finding that the regulation had conferred an expectation of reemployment, absent compliance with the prescribed conference procedures. The court stated that these procedures were not followed in Quintana's termination and "(a)ccordingly plaintiff was denied procedural due process and is entitled to reinstatement." Id. at 6.

We feel that Atencio's case is distinguishable. Quintana was terminated as principal without any hearing or any other procedural safeguards and was given no reason for his termination as principal. Atencio, on the other hand, was given a hearing by the Local Board and is entitled to a further de novo hearing before the State Board and an appeal to the New Mexico Court of Appeals. Atencio, unlike Quintana, is thus given a state forum in which to argue both his substantive and procedural claims under state law. It is quite possible that Atencio's claim that his rights under N.M.Stat.Ann. § 77-8-18 and Regulation 77-1 were violated is meritorious. ¹⁰ However, we feel the mere fact that a discharge may not be in accordance with state law does not necessarily mean that there has been a federal constitutional violation where hearings are available such as New Mexico affords Atencio.

Bates v. Sponberg, 547 F.2d 325 (6th Cir.), involved a dismissal of a tenured professor. The plaintiff alleged that the Board of Regents failed to observe procedural safeguards required by its own regulations. The court held that this was not a constitutional violation, stating:

It is not every disregard of its regulations by a public agency that gives rise to a cause of action for violation of constitutional rights. Rather, it is only when the agency's disregard of its rules results in a procedure which in itself impinges upon due process rights that a federal court should intervene in the decisional processes of state institutions. (Emphasis added).

Id. at 329-30. The court distinguished cases such as Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012, which held that agencies must abide by their own procedures, as based on principles of administrative law rather than the Due Process Clause. Id. at 330, n.7.

We agree with the Sixth Circuit that a breach of state procedural requirements is not, in and of itself, a violation of the Due Process Clause. ¹¹ "(A)n action under the civil rights statutes is not a plenary review of a challenged state administrative procedure." Whitsel v. Southeast Local School District, 484 F.2d 1222, 1227 (6th Cir.). The proper mechanism for such full-scale administrative review of the Local Board's decision in this case is that provided by New Mexico law.

Thus there is no federal constitutional right to the conference procedures. The questions whether the allegations contained in the notice of discharge involve unsatisfactory...