Garcia v. Shanks ( 2000 )

  •                                                                           F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                           UNITED STATES COURT OF APPEALS
                                                                               JUL 27 2000
                                  FOR THE TENTH CIRCUIT
                                                                           PATRICK FISHER
        ANGEL D. GARCIA,
        v.                                                   No. 99-2293
                                                      (D.C. No. CIV-98-1149-PJK
        JOHN SHANKS, GARY MIER,                               (D. N.M.)
        in their official and individual
                                  ORDER AND JUDGMENT          *
    Before BALDOCK , McKAY , and BRISCOE , Circuit Judges.
             After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination
    of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
          This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
          In this 42 U.S.C. § 1983 action, plaintiff Angel D. Garcia appeals the
    district court’s grant of summary judgment on qualified immunity grounds to
    defendants, who served in supervisory and administrative capacities in the
    New Mexico Corrections Department, where Garcia was formerly employed as
    a corrections officer. We affirm.
          Garcia, a Hispanic male, worked for the Corrections Department at the
    New Mexico Penitentiary as a Correction Officer IV. A prerequisite for
    a correctional officer is that the individual shall “not have been convicted of
    a felony or any infamous crime in the courts of [New Mexico] or any other state
    or in the federal courts.” N.M. Stat. Ann. § 33-1-11(D) (Michie 1998 Repl.
    Pamp.). On February 16, 1996, Garcia had a domestic dispute with his wife
    which resulted in his arrest. After consultation with his attorney, he pled guilty
    to false imprisonment and two counts of aggravated assault against a household
    member with a deadly weapon–each count a fourth-degree felony. He intended
    to avoid an adjudication of guilt with the entry of a conditional discharge order,
    followed by a successful completion of probation.      See N.M. Stat. Ann.
    § 31-20-13 (Michie 1994 Repl. Pamp.).     1
                                                  Based on advice from defendants John
          Section 31-20-13 provides:
    Shanks (the penitentiary warden), Gary Mier (an associate warden and Garcia’s
    immediate supervisor), and Mike Carrillo (the personnel director for the
    department of corrections), Garcia believed that this procedure would allow him
    to keep his job.
             On May 20, Garcia entered his guilty plea, allegedly in reliance on
    defendants’ assurances. He continued to hold his position with the department.
    One month later, however, television and newspaper stories were published about
    the incident. The next day spray-painted prison graffiti calling Garcia a “women
    beater” was discovered.     See Appellant’s App. at 155, 159, 164. Garcia’s
    supervisors transferred him to an administrative post, based on the inmates’
    adverse reaction.
             At his sentencing hearing, held July 26, Garcia received the anticipated
    conditional discharge, with two years of supervised probation. Later, defendant
                A. When a person who has not been previously convicted of a
              felony offense is found guilty of a crime for which a deferred or
              suspended sentence is authorized, the court may, without entering an
              adjudication of guilt, enter a conditional discharge order and place
              the person on probation on terms and conditions authorized by
              Sections 31-20-5 and 31-20-6 NMSA 1978. A conditional discharge
              order may only be made available once with respect to any person.
              B. If the person violates any of the conditions of probation, the
             court may enter an adjudication of guilt and proceed as otherwise
             provided by law.
    Virgil Garcia (the Equal Employment Opportunity officer for the department)
    informed plaintiff Garcia that other employees resented the fact that he had not
    been fired. On August 28, 1996, Shanks placed Garcia on administrative leave
    and sent him a Notice of Contemplated Action apprising Garcia of a proposed
           As the factual basis for that action, the notice recounted the domestic
    dispute, the guilty plea, the media attention, and inmates’ reaction.      See id.
    at 156-57. Shanks conceded that, in April, he had advised Garcia that
    a conditional discharge would have no effect on his employment, but stated that
    Garcia’s description of the underlying incident “minimized the level of threatened
    violence that was disclosed by the police reports.”      Id. at 158. Shanks also noted
    that he “did not foresee . . . the publicity that followed in June and the resulting
    negative impact on the public, the inmates and [Garcia’s] fellow employees.”         Id.
    Citing violations of the department’s Code of Ethics,      2
                                                                   Shanks found misconduct
           The Code of Ethics provides, in pertinent part:
           1.     Personal conduct:
                  a.     Employees of the Corrections Department
                         shall conduct themselves in a manner which
                         reflects the highest professional ethics as an
                         employee of the State. . . . Under no
                         circumstances shall employees . . . act in
                         such a way as to adversely affect the
    that was “so serious in relation to [Garcia’s] job responsibilities that [his] ability
    to function effectively as a correctional officer has been destroyed and [his]
    misconduct has adversely affected the Department’s interests.”         Id. at 159.
    A pretermination hearing was held September 13; Garcia’s employment was
    terminated on September 16.
             Garcia appealed to the New Mexico State Personnel Board, alleging that
    the stated reason for his discharge was pretextual. At a hearing before the board,
    Garcia put on testimony designed to demonstrate that at least four other
    corrections officers had committed similar acts but were not dismissed.       3
                           Department or adversely affect the
                           employee’s ability to perform his/her duties.
                           Applicable personnel shall refrain from any
                           conduct which adversely affects the
                           interests of the Department.
                    c.     It is a violation of the Code of Ethics to
                           engage in any conduct which violates the
                           civil or criminal law which adversely
                           affects the interests of the Department of
                           the person’s ability to perform his/her duty
                           to the department.
             The testimony concerning these four other officers showed:
             (1) A corrections officer who described himself as part Spanish and part
             German received a year’s probation with a deferred sentence on a charge of
             aggravated battery (a felony) arising from a domestic dispute and, in a
    Eventually Garcia received unemployment compensation benefits but was not
    reinstated. See id. at 19.
             Garcia filed this suit alleging that, in discharging him, defendants had
    violated his rights to procedural due process, substantive due process, and equal
    protection. The district court determined that defendants were entitled to
    qualified immunity and entered summary judgment.
             “We review the grant of summary judgment      de novo , applying the same
    standard as did the district court.”    Chambers v. Colorado Dep’t of Corrections    ,
    205 F.3d 1237
    , 1241 (10th Cir. 2000) (citations omitted); Fed. R. Civ. P. 56(c).
    Decisions involving a qualified immunity defense, however, are subject to a
    somewhat different analysis from other summary judgment rulings.         See Lighton
              second incident, charged with domestic violence;
             (2) An Anglo associate warden pled guilty and received a conditional
             discharge for committing battery on a subordinate;
             (3) An Anglo left a gun in a government vehicle which an inmate found
             and reported; and
             (4) A Hispanic associate warden incorrectly paroled an inmate.
          Only the incident involving the fourth officer received significant
    media attention. Although all of these individuals were disciplined, none
    were discharged.
    v. University of Utah , 
    209 F.3d 1213
    , 1221 (10th Cir. 2000). “Qualified
    immunity is designed to shield public officials from liability and ensure that
    erroneous suits do not even go to trial.”    Albright v. Rodriguez , 
    51 F.3d 1531
    1534 (10th Cir. 1995) (quotation omitted). When defendants base a motion for
    summary judgment on the defense of qualified immunity, the plaintiff must show
    that the defendants’ actions violated a specific statutory or constitutional right,
    and that “the constitutional or statutory rights the defendant allegedly violated
    were clearly established at the time of the conduct at issue.”   Id. ; see also Scott v.
    Hern , No. 98-1320, 
    2000 WL 726442
    , *7 (10th Cir. June 6, 2000). With this
    standard in mind, we review each aspect of Garcia’s § 1983 case.
                                     Procedural Due Process
           As a public employee with a property interest in continued employment,
    Garcia was “entitled to oral or written notice of the charges against him, an
    explanation of the employer’s evidence, and an opportunity to present his side of
    the story” before termination,    Cleveland Bd. of Educ. v. Loudermill   , 
    470 U.S. 532
    , 546 (1985), and a “full-blown, adversarial” hearing after the termination,
    Calhoun v. Gaines , 
    982 F.2d 1470
    , 1476 (10th Cir. 1992). Garcia has pointed
    to no procedural defects in either his pretermination hearing or his
    post-termination appeal to the Personnel Board. Accordingly, he has not
    demonstrated a violation of his procedural due process rights.
                                    Substantive Due Process
           Garcia next contends his substantive due process rights were violated.
    “Assuming a protected property interest [in this instance], ‘substantive’ due
    process requires only that termination of that interest not be arbitrary, capricious,
    or without a rational basis.”   Curtis v. Oklahoma City Pub. Schs. Bd. of Educ.    ,
    147 F.3d 1200
    , 1215 (10th Cir. 1998) (quotation and brackets omitted).      4
           Even Garcia admits that, at the very least, media accounts of his criminal
    conduct caused “embarrassment” to the department of corrections. Appellant’s
    Br. at 13. Garcia’s actions, and the aftermath of his actions, can be characterized
    as conduct which adversely affected the department and Garcia’s ability to
    perform his duties, in violation of the department’s code of ethics. Thus, it
    cannot be said that the decision to discharge him was arbitrary, capricious, or
    without a rational basis. Garcia’s substantive due process rights were not affected
    by the termination of his employment.
                                       Equal Protection
           Garcia’s final claim is based on an equal protection theory. “The Equal
    Protection Clause is essentially a direction that all persons similarly situated
           To implicate substantive due process, he must demonstrate the presence
    of a liberty or property interest to which the protections of due process attach.
    See Curtis , 147 F.3d at 1215. At present, the question of whether a public
    employee’s property interest in continued employment is subject to substantive
    due process protections is unsettled.  See id. at n.17.
    should be treated alike. . . . In order to assert a viable equal protection claim,
    plaintiffs must first make a threshold showing that they were treated differently
    from others who were similarly situated to them.”       Campbell v. Buckley , 
    203 F.3d 738
    , 747 (10th Cir. 2000) (footnotes, quotations, and ellipses omitted),    petition
    for cert. filed , (U.S. June 15, 2000) (No. 99-2015). Moreover, “purposeful
    discrimination is an essential element of an equal protection violation.”    Lewis v.
    City of Fort Collins , 
    903 F.2d 752
    , 755 n.1 (10th Cir. 1990). “‘Discriminatory
    purpose’” implies that a decisionmaker “selected or reaffirmed a particular
    course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse
    effects upon an identifiable group.”    Personnel Adm’r v. Feeney , 
    442 U.S. 256
    279 (1979).
           Here, Garcia has not made the requisite showing. First, he has identified
    no individual of a different ethnic or racial group who was similarly situated but
    treated differently. The record lacks any evidence of another correctional officer,
    under the supervision of these defendants, who was the subject of extensive
    unfavorable publicity for his role in a criminal incident and remained employed in
    spite of the adverse effect on his ability to relate to inmates, fellow employees,
    and the public. Second, Garcia has not provided any evidence tending to show
    discriminatory purpose on the part of defendants. The evidence supplied by
    Garcia concerning defendants’ advice on the work-related effect of a conditional
    discharge or statement about the dissatisfaction of other employees has no bearing
    on an equal protection analysis.
          In sum, Garcia has failed to demonstrate that defendants’ actions violated
    any clearly established law or constitutional right. The district court correctly
    granted the defendants summary judgment on qualified immunity grounds. The
    decision of the district court is, therefore, AFFIRMED.
                                                        Entered for the Court
                                                        Mary Beck Briscoe
                                                        Circuit Judge