Hulen v. Yates
| Decision Date | 04 March 2003 |
| Docket Number | No. 01-1530.,01-1530. |
| Citation | 322 F.3d 1229 |
| Parties | Myron HULEN, Individually, Plaintiff-Appellee, v. Albert YATES, President; Daniel D. Costello, Dean of the College of Business, and other co-conspirators whose identities are presently unknown, Defendants-Appellants. and Loren Crabtree, Provost, Defendant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jay S. Jester, Miller & Jester, L.L.C., Denver, CO, for Plaintiff-Appellee.
Cathy Havener Greer (Pamela Skelton and L. Michael Brooks, Jr., with her on the briefs), Wells, Anderson & Race, L.L.C., Denver, CO, for Defendants-Appellants.
Before KELLY, McKAY, and HARTZ, Circuit Judges.
Defendants-Appellants, two state university officials, appeal from the district court's denial of qualified immunity. We have jurisdiction over this interlocutory appeal under the qualification of the final judgment rule of 28 U.S.C. § 1291 announced in Mitchell v. Forsyth, 472 U.S 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and we affirm in part and reverse in part.
The following facts are drawn from the complaint and summary judgment materials. Plaintiff-Appellee Myron Hulen is a tenured faculty member at Colorado State University ("CSU"). He was appointed as an assistant professor in the Department of Accounting and Taxation (now the Accounting Department) in 1989. His field is taxation. Beginning in 1995, Dr. Hulen cooperated with other members of the Accounting Department in seeking to revoke the tenure of a colleague (Dr. William Mister) on grounds of plagiarism and copyright violations, emotional abuse of students, abuse and harassment of staff, misuse of state funds, receipt of kickbacks from a publisher in return for adopting textbooks, and other charges. Administrators at CSU allegedly threatened Dr. Hulen and other Accounting Department faculty members pursuing the charges against Dr. Mister. The alleged threats were delivered by then-Accounting Department Chair Michael Moore, who advised that his message was from the CSU Administration. Several adverse actions were threatened unless the charges against Dr. Mister were dropped, including termination of the Masters of Accounting (M.S.) degree program, assignment of the professors to teach courses outside their areas of expertise, transfer of the professors to other departments, and eventual termination of the professors due to overstaffing if the graduate program were eliminated.
Ultimately, a special university committee recommended that Dr. Mister's tenure be retained, but it did so without considering evidence beyond the initial charges and without interviewing those Accounting Department professors substantiating the charges. Unable to achieve harmony in the Accounting Department, and "determined not to live Professor Mister's nightmare," Dr. Moore resigned as chair and later left CSU. Aplt.App. 564. In July 1996, Dr. Costello became the Dean of the College of Business, and, after learning of the more than six years of divisiveness and dysfunction within the Accounting and Taxation Department, he proposed transferring three of four tax faculty out of the Department and changing the name to the Accounting Department. In the summer of 1997, Dr. Hulen was transferred involuntarily from the Accounting Department into the Management Department,1 Aplt.App. 262, in which he is not, he claims, qualified to teach any courses and thereby resulting in a diminished ability to attract research funds, publish scholarship, receive salary increases, teach summer tax classes, and obtain reimbursement for professional dues and journal subscriptions. Aplt.App. 471-72. As we discuss in depth later, Dr. Hulen aired his professional concerns about being removed from the Accounting Department to Dean Costello several times before he was transferred. Aplt.App. 242, 243, 244-46. Dr. Hulen contends that he was notified in May 1998 that he could only teach two classes, both in tax, in the Accounting Department in any given year. Aplt.App. 471. He further contends that adjunct staff and temporary faculty have been hired to teach the courses he normally teaches. Aplt. Br. tab E at 8, ¶ 24.
In response to the transfer, Dr. Hulen filed two grievances. At CSU, a "Class A" grievance involves the assertion of impairment of a constitutional right that requires due process. Aplt.App. 195. The burden of proof with a Class A grievance is on the CSU administrator initiating the challenged decision. Id. A "Class B" grievance involves a term or condition of employment not covered by the Class A category, and the burden of proof is on the grievant. Id. In his first grievance, Dr. Hulen claimed that he should have been provided a pre-deprivation hearing before being transferred to the Management Department. Aplt.App. 472, ¶ 23. The grievance committee concluded that the grievance was a Class B grievance and Dr. Hulen was not entitled to a pre-deprivation hearing. Aplt.App. 95, 533. Dr. Hulen's second grievance claimed that his involuntary transfer deprived him of a property interest and was in retaliation for constitutionally protected free speech. Aplt.App. 472, ¶ 24. The grievance committee ruled that the grievance was a Class B grievance, acknowledged that there was an inference of punitive motivation, but decided that Dean Costello "had reason to act independently of possible retaliatory motives." Aplt.App. 543-44. Apparently rejecting the First Amendment claim, the committee determined that the transfer was not in accordance with the CSU Faculty Manual ("Faculty Manual") which requires mutual agreement for such a transfer. In determining that Dean Costello's action "was unfair, unreasonable and discriminatory," the committee noted that "it removes Dr. Hulen from fundamental faculty rights enjoyed by faculty who remain in the Department of Accounting." Aplt.App. 544.
The grievance committee's decision was reviewed by Provost Loren Crabtree, who decided that, while the grievance was properly classified as Class B, the decision of the grievance committee was unreasonable. Aplt.App. 95-103. CSU President Albert Yates accepted the decision of the provost upon appeal by Dr. Hulen. Aplt. App. 559-61. Dr. Hulen then appealed to the State Board of Agriculture (the governing body of CSU) which upheld Dr. Yates' decision.
Dr. Hulen filed suit under 42 U.S.C. § 1983 in 1998 against the State Board of Agriculture, CSU, President Yates, Provost Crabtree, and Dean Costello alleging that his transfer to the Management Department was in retaliation for his "whistle blowing" and public allegations against Dr. Mister and that the transfer deprived him of a property interest (an appointment in the Accounting Department) without due process. He sought damages and injunctive relief. On March 14, 2000, the district court dismissed Dr. Hulen's suit against CSU and the State Board of Agriculture on both Eleventh Amendment immunity and § 1983 interpretive grounds, holding that neither the University nor the Board are "person[s]" under § 1983.
Dr. Hulen's First and Fourteenth Amendment claims against the three remaining defendants (President Yates, Provost Crabtree, and Dean Costello) in both their official and individual capacities were the subject of a subsequent order by the district court on October 12, 2001. That order is the subject of this appeal. As to Dr. Hulen's First Amendment claims, the court ruled that (1) the claims against President Yates and Dean Costello in their official capacities may proceed to trial but that no monetary damages may be awarded based upon Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), (2) the claim against President Yates in his individual capacity may proceed to trial but that no monetary damages may be awarded based upon quasi-judicial immunity, and (3) the claim against Dean Costello in his individual capacity may proceed to trial, rejecting Dean Costello's assertion of qualified immunity. The court also (4) dismissed both the official capacity and individual capacity claims against Provost Crabtree for lack of personal participation. As to the Fourteenth Amendment claims against the individual Defendants in their official capacities, the court granted summary judgment for Dr. Hulen against all three individual Defendants but ruled that no monetary damages may be awarded, again based upon Ex Parte Young. Finally, the court also granted summary judgment for Dr. Hulen against all three individual Defendants in their individual capacities on the Fourteenth Amendment claims. The court rejected Dean Costello's assertion of qualified immunity, but the court ruled that no monetary damages may be sought against President Yates or Provost Crabtree based on quasi-judicial immunity.
On appeal, President Yates and Dean Costello argue the following regarding qualified immunity on Dr. Hulen's claim of First Amendment retaliatory transfer for speech on a matter of public concern: (1) there was no constitutional violation because (a) the alleged speech was not on a matter of public concern, (b) their interests as administrators outweigh any marginally protected speech of Dr. Hulen, (2) the law was not clearly established in the necessary, particularized sense. They also argue that (3) Dr. Hulen cannot show any personal participation by these Defendants in the alleged retaliatory transfer because of his motivation.
On the issue of qualified immunity for a Fourteenth Amendment deprivation of a property interest, they argue that (1) there was no constitutional violation because (a) Dr. Hulen does not possess a valid property interest in a departmental assignment, (b) Dr. Hulen received all process which is due, (2) Dean Costello was entitled to qualified immunity because the law was not clearly established. Even assuming that Dr. Hulen had established a claim of constitutional proportions against Dean Costello, they argue that the district court erred in...
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