Phillips v. State

• Decision Date: 16 January 2007
• Docket Number: No. A06-627.,A06-627.
• Citation: 725 N.W.2d 778
• Parties: Gregory PHILLIPS, Appellant, v. STATE of Minnesota, et al., Respondents.
• Court: Minnesota Court of Appeals

725 N.W.2d 778

Gregory PHILLIPS, Appellant, v. STATE of Minnesota, et al., Respondents.

No. A06-627.

Court of Appeals of Minnesota.

January 16, 2007.

COPYRIGHT MATERIAL OMITTED

Judith K. Schermer, Judith K. Schermer PLLC, Minneapolis, MN, for appellant.

Lori Swanson, Attorney General, Gary R. Cunningham, Assistant Attorney General, St. Paul, MN, for respondents.

Considered and decided by KLAPHAKE, Presiding Judge; ROSS, Judge; and HUSPENI, Judge.^*

OPINION

ROSS, Judge.

Gregory Phillips, an instructor at a community college, challenges the college's decision not to rehire him following an investigation that substantiated a complaint that he sexually harassed a student. On appeal from summary judgment, Phillips argues that the district court erred by determining that Phillips did not have a protected property interest and the college did not infringe his liberty interest to violate his due process rights, and by not sanctioning the college for spoliation of evidence. Because Phillips had only a unilateral, subjective expectation of future employment at the college and the college did not publicize its reasons for not rehiring Phillips, we affirm the district court's conclusion that Phillips did not have a protected property interest and the college did not violate his liberty interest under the Due Process Clause. Because the spoliation claim is mooted by our due process analysis, we decline to address the issue.

FACTS

Minneapolis Community and Technical College hired Gregory Phillips in January 2001 as a temporary, part-time English instructor. The state's collective-bargaining agreement, which governed Phillips's employment relationship with the college, provided that Phillips's employment was on a fixed-term basis and his employment concluded at the end of the appointed term. Each semester the college provided Phillips with a letter appointing him as an instructor for the following semester. His most recent appointment ended on December 19, 2003.

In early December 2003, the college received a written complaint from a student alleging that Phillips had sexually harassed her for several weeks. The student, who worked at the campus bookstore, claimed that Phillips continuously asked her out despite her repeated refusals, repeatedly visited or passed by the bookstore, stared at her while she was working, and repeatedly attempted to speak with her during her breaks, which she often spent outside. The college's director of legal affairs informed Phillips that a student had filed a sexual-harassment complaint against him and instructed him to stay away from the bookstore. The director, however, did not adhere to the college's policy and procedures for investigating sexual-harassment complaints. Specifically, she did not give Phillips written notice of the complaint or a copy of the college's policies and procedures for addressing harassment complaints, and she did not advise Phillips that he could provide a written response to the allegations.

As part of her investigation, the director interviewed the student, three witnesses, and Phillips. When she interviewed Phillips, she did not give him a written Tennessen notice as required by Minnesota Statutes section 13.04, subdivision 2. During the interviews, the director took notes, which she discarded after incorporating them into her formal report. Based on her investigation, the director concluded that Phillips violated the college's sexual-harassment policy, and she submitted her findings to the college's vice president of student and academic affairs. In a letter dated December 18, 2003, the vice president informed Phillips of the college's decision not to rehire him. Although Phillips had ordered course books and selected the courses he planned to teach the following semester, the college had not given him a letter of appointment for the Spring 2004 semester.

In January 2004, Phillips and his attorney each sent letters to the college's president. The letters contested the sexual-harassment allegations and challenged the college's decision not to rehire Phillips, asserting that the college failed to follow its required procedures while investigating the sexual-harassment complaint. In response, the president provided Phillips with written notice of the complaint, a written notice that Phillips could respond to the allegations, a written Tennessen warning, and a one-page summary of the investigation. Phillips did not respond further, and in March 2004 the president affirmed the decision not to rehire Phillips, finding that sufficient evidence demonstrated that he had harassed the student.

In September 2004, Phillips filed a civil complaint in district court against the state, the college, the state college and university system and its board of trustees, and the college's president and vice president of student and academic affairs. The complaint alleged that the college racially discriminated against him and violated his due process rights. Phillips later claimed spoliation of evidence by the college based on the investigator's decision to discard her notes. The district court granted the defendants' motion for summary judgment. Phillips appeals, arguing that the district court erred by finding that he did not have a protected property or liberty interest that entitled him to due process. He further challenges the district court's conclusion that his spoliation claim lacked a legal and factual basis.

ISSUES

I. Does a state employee working under a fixed-term contract have a property interest entitling the employee to due process when the employee is not rehired at the end of the appointed term?

II. When a government employer decides not to rehire an employee after an internal investigation substantiates a sexual-harassment complaint against the employee, but does not publish the reasons for the separation from employment, does the employee have a protected liberty interest entitling him to due process?

III. Does a party engage in spoliation of evidence when an investigator discards notes she produced in the course of the investigation after she incorporates them into her final report?

ANALYSIS

Phillips challenges the district court's summary-judgment determination that he had neither a constitutionally protected property nor liberty interest. On appeal from summary judgment, we review whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn.2002). The material facts in this case are undisputed. We therefore review de novo the district court's legal conclusions. Id. Summary judgment is appropriate when a plaintiff cannot prove an essential element of his claim. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).

The United States Constitution forbids a state to "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. To establish the existence of a procedural due process violation, a plaintiff must first show that he had a liberty or property interest and that state action deprived him of that protected interest. See Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976) (holding that procedural due process constrains only government decisions depriving individuals of interests protected under Due Process Clauses of federal constitution). Without a protected interest, the government has no constitutional obligation to provide due process. Singleton v. Cecil, 155 F.3d 983 987 (8th Cir.1998). A university's failure to follow its procedural rules and regulations does not, by itself, give rise to a protected property or liberty interest. Batra v. Bd. of Regents, 79 F.3d 717, 720 (8th Cir.1996).

I

We first consider Phillips's asserted property interest in continued employment after December 2003. To have a property interest, a government employee must have a legitimate claim of entitlement to continued employment; a unilateral expectancy is insufficient. Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Property interests are protected by, but not created by, the Constitution. Id. A property interest stems from an independent source, such as a statute or contract "that secure[s] certain benefits and that support[s] claims of entitlement to those benefits." Id.; see also Washington v. Indep. Sch. Dist. No. 625, 590 N.W.2d 655, 659 (Minn. App.1999) (noting that subjective expectation of continued employment is not protected by procedural due process). In many settings, a public employee has a constitutionally protected property interest in continued employment. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985) (holding that security guard hired by board of education had property interest in continued employment when state statute provided that civil servants could be terminated only for cause). An untenured teacher at a public school, however, has no constitutional right to due process after his contractual term of employment expires and the school decides not to rehire him. See Roth, 408 U.S. at 569, 92 S.Ct. at 2705 (holding that untenured professor at state university had no right to procedural due process on university's decision not to rehire him after his term expired); Geddes v. Northwest Mo. State Univ., 49 F.3d 426, 429 (8th Cir.1995) ("Absent unusual circumstances, a teacher in a position without tenure or a formal contract does not have a legitimate entitlement to continued employment.").

Because Phillips does not point to any statute that gives rise to a property interest, any property interest in employment must arise from the terms of his appointment. We agree with the district court that the terms of Phillips's employment did not provide him a protected property interest entitling him to due process. Phillips's employment at the college was part-time and...