Cockrell v. BOARD OF REGENTS OF NMSU

• Decision Date: 07 May 1999
• Docket Number: No. 19,417.,19,417.
• Citation: 127 N.M. 478,983 P.2d 427
• Parties: Fletcher COCKRELL, Plaintiff-Appellee, v. The BOARD OF REGENTS OF NEW MEXICO STATE UNIVERSITY and Jim Paul, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

983 P.2d 427

127 N.M. 478

Fletcher COCKRELL, Plaintiff-Appellee, v. The BOARD OF REGENTS OF NEW MEXICO STATE UNIVERSITY and Jim Paul, Defendants-Appellants.

No. 19,417.

Court of Appeals of New Mexico.

May 7, 1999.

Matthew P. Holt, Holt & Babington, P.C., Las Cruces, for Appellee.

Thomas A. Sandenaw, Jr., Leonard J. Piazza, Law Office of T.A. Sandenaw, Las Cruces, Clifford K. Atkinson, Atkinson & Thal, P.C., Albuquerque, Kenneth L. Harrigan, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, for Appellants.

OPINION

BOSSON, Judge.

{1} In this qualified immunity case, Plaintiff, Fletcher Cockrell, sued New Mexico State University (NMSU) and its Athletic Director, Jim Paul, alleging, among other claims, a breach of implied contract and a deprivation of a property interest without due process of law that arose when Paul summarily terminated Cockrell's employment as assistant basketball coach at NMSU. Paul appeals a district court order denying his motion for summary judgment on the ground of qualified immunity with respect to the due process claim. We determine that Cockrell's alleged property interest in continued employment under NMSU's Personnel and Benefits Policy Manual (the Manual) was not clearly established at the time of his discharge, and therefore, Paul was entitled to summary judgment based on qualified immunity. In light of this decision, we need not decide any other issue appealed to us. We reverse and remand for entry of summary judgment in favor of Paul on Cockrell's due process claim and for further proceedings on Cockrell's remaining claims.

APPELLATE JURISDICTION

{2} After the district court denied his motion for summary judgment on qualified immunity, Paul filed a petition for writ of error and stay of proceedings in this Court which we granted and assigned the case to the general calendar. See Carrillo v. Rostro, 114 N.M. 607, 614-19, 845 P.2d 130, 137-42 (1992) (explaining the use of a writ of error as the proper procedure for reviewing collateral orders such as orders denying qualified immunity); see also Knippel v. Northern Communications, Inc., 97 N.M. 401, 402, 640 P.2d 507, 508 (Ct.App.1982) (noting that motions to dismiss are treated as motions for summary judgment when matters outside the pleadings are considered). Because the district court denied Paul qualified immunity as a matter of law, the order is immediately reviewable. See Carrillo 114 N.M. at 614, 845 P.2d at 137; see also Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (holding that a district court order denying a motion for summary judgment on the ground of qualified immunity was immediately appealable under federal law when the issue was whether certain given facts showed a violation of clearly established law); cf. Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (holding that an order denying a motion for summary judgment on qualified immunity was not subject to immediate appellate review under federal law when the motion was denied because of the existence of genuine issues of material fact).

BACKGROUND

{3} Cockrell was employed by NMSU as an assistant basketball coach for approximately 16 months, starting in June 1996 until he was terminated in October 1997. Cockrell did not have an express, written contract of employment but instead claims certain rights as an employee under the Manual. The key dispute under the Manual is whether Cockrell was still a probationary employee at the time of his termination. Probationary employees have no expectancy of continued employment and may be terminated without cause and without procedural protections such as notice and a hearing. Non-probationary employees, on the other hand, do have such an expectancy in that they can only be discharged for good cause and by way of due process grievance procedures. There is no dispute that if Cockrell was still a probationary employee at the time of his termination, then his discharge satisfied the Manual. However, if by then, he was more than a mere probationary employee, then it is equally settled that he did not receive the protections owed him under the Manual. More importantly, for purposes of this appeal, as a non-probationary employee Cockrell would have an expectancy of continued employment which cannot be eliminated arbitrarily without due process of law. See generally Lovato v. City of Albuquerque, 106 N.M. 287, 289, 742 P.2d 499, 501 (1987) (recognizing, under federal law, a constitutionally protected property interest in the right to continued employment).

{4} The contents of the Manual are not in dispute; only their interpretation is in doubt. We will discuss those differences in more detail later in this opinion. The underlying facts are also fairly well settled. Cockrell was initially hired in June 1996 under non-competitive, emergency procedures. A year later, as required by the Manual, NMSU advertised Cockrell's position, Cockrell re-applied, and he was rehired in the same position. Although his actual job seems to have remained the same, his employment status officially changed June 1, 1997, after his rehire, when he was no longer an emergency employee. Cockrell argues that his first year as an emergency hire constituted his probationary period. Upon rehire in June 1997, Cockrell maintains he was a non-probationary employee and could only be discharged for cause. On the other hand, Paul takes the position that Cockrell did not become a probationary employee until after he was rehired in June 1997 as a non-emergency, full-time, regular employee. As such, Cockrell would not have evolved into a regular, non-probationary employee until he had completed working one year from his June 1997 reemployment. This difference in interpreting the Manual frames the critical dispute between the parties.

{5} In response to Cockrell's civil complaint for damages against him individually under 42 U.S.C. § 1983, Paul filed a motion to dismiss the due process claim on the ground of qualified immunity. Attached to the memorandum in support of this motion was an affidavit of the Director of Personnel, which in turn attached as exhibits portions of the Manual and various memos, completed personnel forms, and portions of Cockrell's file, all relating to his employment with NMSU.

{6} Cockrell responded to the motion to dismiss by filing a memorandum in opposition with affidavits. Cockrell's affidavit attached as exhibits the staffing authorization form for the position of assistant basketball coach dated June 5, 1996, the personnel transaction form showing a hire date of June 28, 1996, and various other personnel forms regarding insurance and other employee benefits as well as portions of the personnel manual. Cockrell also attached the affidavits of Al Gonzales, Thomas Vincent, and Dorothy Peters, each of whom had substantial experience in personnel matters. These affidavits each expressed the opinion that it was objectively unreasonable to conclude that Cockrell was a mere probationary employee in October 1997, essentially because, in their opinion, the first year of emergency status constituted the one-year probationary period.

{7} Paul then filed a motion to strike the affidavits of Gonzales, Vincent, and Peters, and to strike portions of Cockrell's affidavit. The district court denied the motion to strike the affidavits as moot because it determined Paul "is not entitled to the defense of qualified immunity as a question of law, and [the court] did not rely on these Affidavits in making its decision." Paul has obtained this writ of error to appeal that decision.

DISCUSSION

The Qualified Immunity Defense and Summary Judgment

{8} Government officials performing discretionary functions are entitled to qualified immunity from suit under § 1983 as long as "their conduct [did] not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); accord Romero v. Sanchez, 119 N.M. 690, 692, 895 P.2d 212, 214 (1995); Kennedy v. Dexter Consol. Schs., 1998-NMCA-051, ¶ 32, 124 N.M. 764, 955 P.2d 693, cert. granted (S.Ct. Apr. 2, 1998) (No. 24,988); Yount v. Millington, 117 N.M. 95, 98, 869 P.2d 283, 286 (Ct.App.1993). The immunity obtains unless it can be shown as a matter of clearly established law that an objectively reasonable official would have known that rights were being violated. Thus, qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Put another way, qualified immunity is "the usual rule," such that "only in exceptional cases" will governmental actors have no immunity from § 1983 claims brought against them for money damages in their individual capacities. Lassiter v. Alabama A & M Univ. Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.1994). The New Mexico Supreme Court has noted that qualified immunity "is an accommodation by the courts to the `conflicting concerns' of government officials seeking freedom from personal monetary liability and harassing litigation and injured persons seeking redress for the abuse of official power." Oldfield v. Benavidez, 116 N.M. 785, 789, 867 P.2d 1167, 1171 (1994) (citation omitted).

{9} Once qualified immunity is properly raised in a motion for summary judgment, the court conducts a two-part test.

First, a court must look at the undisputed facts and those facts adduced by the party opposing summary judgment to see if there is any evidentiary support for finding a possible violation of law. Second, if the law may have been violated, a court must ask if that law was clearly established at the time of the alleged violation.

Romero, 119 N.M. at 692, 895 P.2d at 214. "On a summary judgment motion the issue is an `essentially legal question whether the...