Brown v. New Mexico State Personnel Office, No. 04-2099.

• Decision Date: 01 March 2005
• Docket Number: No. 04-2099.
• Parties: Candilyn COPELIN-BROWN, Plaintiff-Appellee, v. NEW MEXICO STATE PERSONNEL OFFICE, a New Mexico State Agency, Defendant, and Sherry Smith; Gip Brown; Sandra K. Perez, individually and as supervisors of the New Mexico State Personnel Office, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

399 F.3d 1248

Candilyn COPELIN-BROWN, Plaintiff-Appellee, v. NEW MEXICO STATE PERSONNEL OFFICE, a New Mexico State Agency, Defendant, and Sherry Smith; Gip Brown; Sandra K. Perez, individually and as supervisors of the New Mexico State Personnel Office, Defendants-Appellants.

No. 04-2099.

United States Court of Appeals, Tenth Circuit.

March 1, 2005.

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George T. Geran (and Michele Masiowski, Serra, Garrity & Masiowski, L.L.C., with him on the brief), Santa Fe, New Mexico, for Plaintiff-Appellee.

Kevin M. Brown (and Daniel J. Macke, with him the briefs), Brown & German, Albuquerque, New Mexico, for Defendants-Appellants.

Before KELLY, ANDERSON, and O'BRIEN, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendants-Appellants New Mexico State Personnel Office ("SPO"), Sherry Smith, Gip Brown, and Sandra Perez, supervisors and directors of the SPO, appeal from the denial of qualified immunity after a grant of summary judgment in favor of Plaintiff-Appellee Candilyn Copelin-Brown on her claims for violations of the Due Process and Equal Protection Clauses of the United States Constitution and breach of contract. They claim that Ms. Copelin-Brown does not have standing to challenge the regulation in question, that the district court erroneously found violations of the Due Process and Equal Protection Clauses, that the individual defendants are entitled to qualified immunity, and that the district court erroneously found a breach of contract. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm as to qualified immunity. We lack jurisdiction as to the breach of contract claim.

Background

Ms. Copelin-Brown was employed in the New Mexico SPO for four years. Aplee. Br. at 4. When she was initially hired, Ms. Copelin-Brown worked as a receptionist. Aplee. Br. at 4. She was later reassigned to a different position that required a great deal more computer work. Aplee. Br. at 4. This type of work exacerbated her problems with migraine headaches. Aplee. Br. at 4. Health problems related to these migraines caused Ms. Copelin-Brown to have numerous absences from work. Aplt. Br. at 5; Aplee. Br. at 4. Over time, Ms. Copelin-Brown's condition worsened, and she became unable to perform the tasks her position required. Aplt. Br. at 5. Ms. Copelin-Brown applied for numerous other positions in the SPO, including her former receptionist position, but Defendants Perez and Brown determined that Ms. Copelin-Brown could not perform any computer work and did not transfer her to another position within the SPO. Aplee. Br. at 4.

On June 1, 2001, Ms. Copelin-Brown was informed that she would be fired from her job on June 15, 2001, if she could not perform, pursuant to a New Mexico state regulation. N.M. Admin. Code tit. 1, § 7.10.13. Aplt. Br. at 5; Aplee. Br. at 6. This regulation applied only to employees who are physically or mentally unable to perform their jobs. Aplt. Br. at 6; Aplee. Br. at 6. The regulation, unlike the regulation concerning termination for non-disabled employees, N.M. Admin. Code tit. 1, § 7.11.10, did not provide the terminated employee with a right of appeal. Aplee. Br. at 6. The regulation did require that the employer make reasonable efforts to find other suitable vacant positions and document all efforts to accommodate the employee's medical restrictions. N.M. Admin. Code tit. 1, § 7.10.13(B).

Ms. Copelin-Brown filed suit alleging breach of contract, breach of an implied covenant of good faith, a § 1983 claim alleging violations of equal protection and due process, and a § 1985 claim of civil conspiracy. Aplt. Br. at 3. Upon cross-motions for summary judgment, the district court granted Ms. Copelin-Brown's motion with regard to the § 1983 claim against the individual defendants and the breach of contract claim, finding an implied employment contract sufficient to waive governmental immunity. App. at 327-28. The district court granted Defendants' motion for summary judgment with regard to the § 1985 claim and the § 1983 claim asserted against the government and officers in their official capacity. Id.

Discussion

"We review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court." Benavidez v. City of Albuquerque, 101 F.3d 620, 623 (10th Cir.1996). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, we view the evidence in the light most favorable to the non-movant. Kingsford v. Salt Lake City Sch. Dist., 247 F.3d 1123, 1128 (10th Cir.2001).

A. Standing

It is well established that to litigate a justiciable controversy, the plaintiff must have standing to maintain suit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Morgan v. McCotter, 365 F.3d 882, 887 (10th Cir.2004). "There are three requirements of Article III standing. First, the plaintiff must suffer an injury in fact. An injury in fact is an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, i.e., not conjectural or hypothetical." Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1280 (10th Cir.2002) (internal citations and quotations omitted). A plaintiff must also demonstrate that (2) the harm complained of is fairly traceable to the defendant's conduct and (3) that a favorable ruling from the court would redress plaintiff's injury. Id.

Defendants first challenge the district court's grant of summary judgment by arguing that Ms. Copelin-Brown lacks standing, citing Morgan. In short, they argue that Ms. Copelin-Brown has suffered no injury in fact since she receives total disability benefits, and further due process hearings would not have alleviated any harm. Aplt. Br. at 28-29.

Whether a denial of due process constitutes an injury in fact requires the court to determine whether, "assuming the truth and validity of all of a plaintiff's factual allegations and legal theories, the due process protections would have alleviated any harm." Morgan, 365 F.3d at 889. In Morgan, the court found that the plaintiff lacked standing because he failed to show "any intention, desire, or plan to continue his employment in a career service position with the State of Utah." Id. at 888. In the instant case, unlike Morgan, Ms. Copelin-Brown applied for numerous positions in the SPO, including her former receptionist position, Aplee. Br. at 4, thus exhibiting a desire, intention, or plan to continue employment with the State of New Mexico. Thus, she has suffered an injury in fact from the loss of her eligibility and consideration for such positions.

Regarding Defendants' argument that Ms. Copelin-Brown suffered no injury in fact because she concedes that she was severely disabled and thus could not have prevailed if a hearing were provided, Article III standing does not require that Ms. Copelin-Brown would obtain concrete relief from the desired process. Lujan, 504 U.S. at 573 n. 7, 112 S.Ct. 2130; Rector v. City & County of Denver, 348 F.3d 935, 943 (10th Cir.2003) ("Parties may suffer injury in fact from defective procedures even if, at the end of the day, they would not have prevailed on the merits."). Of course, "the Constitution does not protect procedure for procedure's sake." Rector, 348 F.3d at 943. Rather, "there must be some factual dispute between an employer and a discharged employee" that has some significance. Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977). In other words, if Ms. Copelin-Brown "does not challenge the substantial truth of the material in question, no hearing would afford a promise of achieving that result." Id. at 627-28, 97 S.Ct. 882.

In this case, although Ms. Copelin-Brown does not claim that she was not permanently disabled, she does argue that the SPO failed to comply with state regulations by failing to properly document attempts to accommodate her medical restrictions or make reasonable efforts to find other suitable positions. N.M. Admin Code tit. 1, §§ 7.10.13(B)(1) & (2). Thus, at the time of her termination, there was a significant dispute between Ms. Copelin-Brown and Defendants that could have been resolved in a post-termination hearing.

Ms. Copelin-Brown has also satisfied the second requirement of traceability by clearly demonstrating that the named defendants were responsible for this alleged deprivation, a fact that is not disputed. Finally, the state argues that because Ms. Copelin-Brown receives total disability benefits, a favorable ruling from the court would fail to redress her injury. However, even if Ms. Copelin-Brown's dismissal was justified on the merits, her right to procedural due process entitles her to at least nominal damages. See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Thus, court-awarded compensation would properly redress Ms. Copelin-Brown's injury.

B. Fourteenth Amendment Violations

1. Due Process

The Fourteenth Amendment protects citizens from the deprivation of "life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. "[P]rocedural due process ensures that a state will not deprive a person of life, liberty or property unless fair procedures are used in making that decision." Archuleta v. Colo. Dep't of Insts., Div. of Youth Servs., 936 F.2d 483, 490 (10th Cir.1991). "To determine whether a plaintiff was denied procedural due process, we engage in a two-step inquiry: (1) Did the individual possess a protected interest to which due process protection was applicable? (2) Was the individual afforded an appropriate level of process?" Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir.1998).

Property interests are not created by ...