Cypert v. Indep. Sch. Dist. No. I-050 of Osage Cnty.

• Citation: 273 Ed. Law Rep. 596,661 F.3d 477
• Decision Date: 19 October 2011
• Docket Number: No. 10–5122.,10–5122.
• Parties: Louanne CYPERT, Plaintiff–Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. I–050 OF OSAGE COUNTY, a/k/a Prue Public Schools; Ron Meadows; Gerald Jackson; Valerie Traster; Sylvia Hendrix, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

273 Ed. Law Rep. 596
661 F.3d 477

Louanne CYPERT, Plaintiff–Appellant,
v.
INDEPENDENT SCHOOL DISTRICT NO. I–050 OF OSAGE COUNTY, a/k/a Prue Public Schools; Ron Meadows; Gerald Jackson; Valerie Traster; Sylvia Hendrix, Defendants–Appellees.

No. 10–5122.

United States Court of Appeals, Tenth Circuit.

Oct. 19, 2011.

[661 F.3d 478]

Submitted on the briefs: ^*

Blake Sonne, Sonne Law Firm, Norman, OK, for the Appellant.

Kent B. Rainey, Matthew J. Ballard, Rosenstein, Fist & Ringold, Tulsa, OK, for the Appellees.Before BRISCOE, Chief Judge, EBEL, and O'BRIEN, Circuit Judges.ORDER

The Appellees have requested that we publish our order and judgment filed in this case on August 15, 2011. Upon consideration, the motion is granted.

[661 F.3d 479]

The attached opinion is substituted for the order and judgment previously filed on August 15, 2011.

O'BRIEN, Circuit Judge.

Bringing suit under 42 U.S.C. § 1983 and anti-discrimination statutes, Louanne Cypert alleged defendants' failure to renew her employment contracts with the Prue, Oklahoma, public school district (the District) violated her First and Fourteenth Amendment rights and was due to gender and age discrimination. She appeals from a summary judgment rejecting her claims, in which the district court determined (1) her non-renewal hearing satisfied her due-process rights, (2) she failed to show her speech was a motivating factor for the decision not to renew her full-time contract, and (3) she failed to show defendants' reason for not renewing her part-time contract resulted from discrimination. We affirm.¹

Background

Defendants are the District and four individuals who were members of the Prue Board of Education (the Board). The District is small, with a total of approximately 310 students. Cypert was the high school secretary with a full-time support-employee contract, which included employment security provisions. She also had an extra-duty contract for a part-time job as concession director. She does not claim the extra-duty contract contained any employment security provisions.

In February 2008, defendant Ron Meadows was elected to the Board with a campaign calling for change, including the dismissals of some staff. According to testimony of Melvina Prather, the Interim Superintendent from April to June, 2008, when she met with Meadows on several occasions, he spoke about firing certain employees, including Cypert, because he did not think they could do their jobs. Another Board member, defendant Gerald Jackson, was present with Meadows on one of those occasions.² Jackson also said he wanted those employees fired. Prather refused to dismiss the employees. In the summer of 2008, the Board renewed Cypert's full-time contract for 2008–2009, but declined to renew the extra-duty contract, instead awarding it to two teachers.

In the fall of 2008, the Board became concerned about the District's finances. It initiated a financial investigation and, in November, terminated the treasurer's employment.³ In December, it hired Douglas Jones to be the new assistant treasurer. At the January 2009 Board meeting, Jones advised the Board it was in a financial crisis. By May, he calculated the District would have $161,000 to carry into 2009–2010, more than he had earlier predicted, but still less than the recommended minimum of $250,000. He was “cautiously optimistic,” but continued to believe the District “was still in financial difficulties.”

[661 F.3d 480]

Aplee. Supp.App. at 204. He expected state aid money to decrease, and he “was advising all the schools that [he was] work [ing] with to hold all expenses to the absolute minimum going into [the next school] year.” Id. at 205.

The Board decided to notify eleven support employees that their contracts may not be renewed for the 2009–2010 school year due to the District's finances. Cypert was the only employee who requested and went through a pre-non-renewal due-process hearing, which took place on June 8, 2009. Jones did not attend. The new Superintendent, Phyllis Tarrant, testified to the District “making some recovery but, not enough that we would have an adequate fund to carry over for the 2009–2010 school year.” Id. at 139. No decisions had been made regarding cost reductions, but she planned to present various alternatives, which might include dividing the duties of the high school secretary among other personnel. Under cross-examination, Tarrant admitted they did not yet know how much the District would receive from the state for the next year, and without that information the Board could not make any decisions about how to structure the school system and which support staff to re-employ. Cypert testified to having performed her job without problems for years; she called no other witnesses.

After an executive-session discussion, which Tarrant also attended, the Board found the District was facing a financial crisis and needed to cut expenses for 2009–2010. A sufficient response to the problem, it concluded, required reductions in personnel, and reorganization of the District's schools might reduce the number of office staff needed. It voted not to renew Cypert's contract as a cost saving measure. A few weeks later, the District ended the school year with a carryover of $330,000. During the summer of 2009, the Board decided to renew the contracts of every support employee who had been notified of possible non-renewal in May 2009. It also kept the position of high school secretary but did not offer to employ Cypert to fill it. It hired another person instead.

Cypert claimed the non-renewal hearing did not satisfy her right to due process. She also alleged the failure to renew her contract was in retaliation for her exercise of free speech rights because, in the fall of 2008, she had signed a state-court petition calling for a grand jury investigation into the activities of Board members. She also alleged the non-renewal of her extra-duty contract violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2, and the Age Discrimination in Employment Act, 29 U.S.C. § 623. Cypert appeals from the summary judgment.⁴

Analysis

“We review de novo a grant of summary judgment, applying the same standard that governs the district court.” Lauck v. Campbell Cnty., 627 F.3d 805, 809 (10th Cir.2010). We view “the evidence in the light most favorable to the appellant.” Meiners v. Univ. of Kan., 359 F.3d 1222, 1229 (10th Cir.2004). Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

I. Due Process

No defendant contends Cypert did not have a protected property interest in her employment or was not entitled to due process in connection with the non-renewal

[661 F.3d 481]

of her contract. Cypert, on the other hand, does not now contend her employment could not be terminated for legitimate fiscal reasons. Instead, she alleges four procedural due-process violations: (1) a biased tribunal; (2) Tarrant attended the executive session; (3) she was not allowed to confront or cross-examine Jones, even though his financial calculations were the asserted basis for not continuing her employment; and (4) the hearing was a sham because there was no financial crisis.⁵

A. Impartial Tribunal

Cypert argues the four individual defendants were biased, thus depriving her of an impartial tribunal. As the district court noted, however, defendant Meadows was not a member of the Board on June 8, 2009, and he took no part in the Board's decision not to renew Cypert's contract. Because he was not a decisionmaker, his impartiality is irrelevant to Cypert's hearing. Therefore, we focus on defendants Jackson, Traster, and Hendrix.

“Impartiality of the tribunal is an essential element of due process.” Riggins v. Goodman, 572 F.3d 1101, 1112 (10th Cir.2009). Impartiality may be affected by a “personal or financial stake” in the outcome or “personal animosity.” Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482, 491–92, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976). But because “a person claiming bias on the part of an administrative tribunal must overcome a presumption of honesty and integrity in those serving as adjudicators,” a “substantial showing of personal bias is required to disqualify a hearing officer or tribunal.” Riggins, 572 F.3d at 1112 (quotation omitted); see also Hicks v. City of Watonga, 942 F.2d 737, 746–47 (10th Cir.1991) (“[T]here must be some substantial countervailing reason to conclude that a decisionmaker is actually biased with respect to factual issues being adjudicated.” (emphasis added) (quotation omitted)).

In assessing the bias issue the district court concluded the only probative evidence of the Board's bias was Prather's testimony. Prather recalled speaking to Jackson on one occasion in spring 2008 about firing Cypert along with other employees. Cypert asserts the court ignored the deposition testimony of Prather's successor, Randy Cottrell, and a fifth Board member not named as a defendant, Donald Horton. But Cottrell's testimony is irrelevant because it did not involve Cypert. And Horton's testimony does not help her. Horton recalled Board members discussing Cypert in executive sessions, but their discussion focused only on her job performance. Horton did, however, offer an opinion, to wit: Meadows and Jackson had formed a plan to dismiss...