Unpublished Disposition, 865 F.2d 264 (9th Cir. 1988)

MEMORANDUM^* 

Overview:

Ms. Kotaka appeals from the District Court's denial of her motion for partial summary judgment and its grant of the Superintendent of the Department of Education's (DOE's) motion for summary judgment on the question whether Ms. Kotaka had a constitutionally protected property interest in continued employment. It is unnecessary to address the question whether Ms. Kotaka had a constitutionally protected interest, however, because this panel has reviewed the record de novo and determined that even if Ms. Kotaka did have such an interest, the procedures accorded to her were constitutionally adequate. Standard of Review:

This court reviews the granting of summary judgment de novo. See, e.g., Fernhoff v. Tahoe Regional Planning Agency, 803 F.2d 979, 982 n. 2 (9th Cir. 1986).

Discussion:

Ms. Kotaka claims that the settlement agreement created a constitutionally protected property interest in continued employment. We do not address this issue, however, because we find that even if the settlement agreement created in Ms. Kotaka a reasonable expectation of continued employment, the decision to discontinue her employment was made with due process. Ms. Kotaka chose not to argue in her brief to this court that the process accorded to her in connection with her termination was inadequate. The issue is before us on appeal, however, and we have reviewed it de novo.

Ms. Kotaka argued before the district court that she had been denied due process because, inter alia, the DOE did not follow its own procedures when it denied Ms. Kotaka arbitration. Failure by the school to comply with its own procedural requirement is not, in and of itself, a violation of the due process clause. See, e.g., Atencio v. Board of Educ., 658 F.2d 774, 779 (10th Cir. 1981) (holding that "the mere fact that a discharge may not be in accordance with state law does not necessarily mean that there has a been a federal constitutional violation"); Bates v. Sponberg, 547 F.2d 325, 329-30 (6th Cir. 1976) (" [I]t is only when the agency's disregard of its rules results in a procedure which in itself impinges upon due process rights that a federal court should intervene in the decisional processes of state institutions."). Thus, even if the collective bargaining agreement entitled Ms. Kotaka to arbitration, the only question here is whether the procedure actually provided met federal constitutional standards. See Bates, 547 F.2d at 329-30.

The procedure accorded to Ms. Kotaka in connection with her termination met the requirements of due process. Ms. Kotaka received notice of her nonrenewal of employment and an opportunity to be heard. Ms. Kotaka spoke with the principal after receiving each negative evaluation (Form 750). She also met with the principal upon receiving notice of her unsatisfactory evaluation for the 1980-81 year (Form 751). Finally, she had a "Step 3" posttermination hearing before the Superintendent's Designated Representative. At the hearing she was represented by a union agent who solicited testimony from witnesses, submitted related exhibits of evidence, and made arguments on Ms. Kotaka's behalf. This hearing met the requirements of due process. See, e.g., Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773, 780 (9th Cir. 1982) (finding a posttermination hearing constitutionally adequate where the teacher had counsel present, was permitted to cross-examine witnesses, and had the opportunity to rebut the evidence that had been used in the initial decision, even though the posttermination hearing was conducted by the same school board that had made the initial termination decision); Stewart v. Bailey, 556 F.2d 281, 285 (5th Cir. 1977) (listing the factors required for due process: notice of the causes for termination; notice of the names and nature of the testimony of adverse witnesses; a hearing affording an opportunity to make a meaningful defense; and a hearing tribunal that possesses some academic expertise and is apparently impartial toward the charges).

Ms. Kotaka alleged before the district court that the Superintendent's representative was not a neutral arbiter because the Superintendent had made the initial decision not to renew her teaching appointment. The fact of an adjudicator's involvement in the initial termination decision does not alone invalidate the proceeding. See Vanelli, 667 F.2d at 779 n. 10 (rejecting the appellant's contention that the school board members' participation in the initial termination decision, without more, rendered them impermissibly biased at the subsequent hearing); Busche v. Burkee, 649 F.2d 509, 517 (7th Cir.), cert. denied, 454 U.S. 897 (1981). There is a presumption that the adjudicator is honest and impartial. See Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482, 497 (1976); Vanelli, 667 F.2d at 779 n. 10. Ms. Kotaka failed to present to the district court any evidence indicating that Mr. Nohara was partial or biased.

Conclusion:

For the reasons stated above, we affirm the district court's order denying the plaintiff's motion for partial summary judgment and granting the defendant's motion for summary judgment. Without deciding whether the plaintiff had a property interest protected by the due process clause of the fourteenth amendment, we find that the process she received met constitutional standards even if such an interest existed.