## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 1 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CANDILYN COPELIN-BROWN, Plaintiff - Appellee,

v. NEW MEXICO STATE PERSONNEL OFFICE, a New Mexico State Agency, Defendant, and SHERRY SMITH; GIP BROWN; SANDRA K. PEREZ, individually and as supervisors of the New Mexico State Personnel Office, Defendants - Appellants. No. 04-2099

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. No. CIV-02-1638-LH/JHG)
George T. Geran (and Michele Masiowski, Serra, Garr ity & Masiowski, L.L.C., with him on the brief), Santa Fe, New Mexico, for P laintiff - Appellee. Kevin M. Brown (and Daniel J. Macke, with him the b riefs), Brown & German, Albuquerque, New Mexico, for Defendants - Appellant s.

Before KELLY , ANDERSON , and O’BRIEN , Circuit Judges.- 2 -

KELLY , Circuit Judge.

Defendants-Appellants New Mexico State Personnel Of fice (“SPO”), Sherry Smith, Gip Brown, and Sandra Perez, supervis ors and directors of the SPO, appeal from the denial of qualified immunity a fter a grant of summary judgment in favor of Plaintiff-Appellee Candilyn Co pelin-Brown on her claims for violations of the Due Process and Equal Protect ion Clauses of the United States Constitution and breach of contract. They c laim that Ms. Copelin-Brown does not have standing to challenge the regulation in question, that the district court erroneously found violations of the Due Proce ss and Equal Protection Clauses, that the individual defendants are entitle d to qualified immunity, and that the district court erroneously found a breach of co ntract. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm as to qualified i mmunity. We lack jurisdiction as to the breach of contract claim.

Background Ms. Copelin-Brown was employed in the New Mexico SP O for four years. Aplee. Br. at 4. When she was initially hired, Ms. Copelin-Brown worked as a receptionist. Aplee. Br. at 4. She was later reas signed to a different position that required a great deal more computer work. Aplee. B r. at 4. This type of work- 3 -

exacerbated her problems with migraine headaches. Aplee. Br. at 4. Health problems related to these migraines caused Ms. Cope lin-Brown to have numerous absences from work. Aplt. Br. at 5; Aplee. Br. at 4. Over time, Ms. CopelinBrown’s condition worsened, and she became unable t o perform the tasks her position required. Aplt. Br. at 5. Ms. Copelin-Br own applied for numerous other positions in the SPO, including her former receptio nist position, but Defendants Perez and Brown determined that Ms. Copelin-Brown c ould not perform any computer work and did not transfer her to another p osition within the SPO. Aplee. Br. at 4. On June 1, 2001, Ms. Copelin-Brown was informed that she would be fired from her job on June 15, 2001, if she could not per form, pursuant to a New Mexico state regulation. N.M. Admin. Code tit. 1, § 7.10.13. Aplt. Br. at 5; Aplee. Br. at 6. This regulation applied only to e mployees who are physically or mentally unable to perform their jobs. Aplt. Br. at 6; Aplee. Br. at 6. The regulation, unlike the regulation concerning termin ation for non-disabled employees, N.M. Admin. Code tit. 1, § 7.11.10, did not provide the terminated employee with a right of appeal. Aplee. Br. at 6. The regulation did require that the employer make reasonable efforts to find other suitable vacant positions and document all efforts to accommodate the employee’s medical restrictions. N.M. Admin. Code tit. 1, § 7.10.13(B).- 4 -

Ms. Copelin-Brown filed suit alleging breach of contract, breach of an implied covenant of good faith, a § 1983 claim alle ging violations of equal protection and due process, and a § 1985 claim of c ivil conspiracy. Aplt. Br. at 3. Upon cross-motions for summary judgment, the distri ct court granted Ms. Copelin-Brown’s motion with regard to the § 1983 cl aim against the individual defendants and the breach of contract claim, findin g an implied employment contract sufficient to waive governmental immunity. App. at 327-28. The district court granted Defendants’ motion for summary judgme nt with regard to the § 1985 claim and the § 1983 claim asserted against th e government and officers in their official capacity. Id.

Discussion “We review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court.” B enavidez v. City of Albuquerque , 101 F.3d 620, 623 (10th Cir. 1996). Summary judg ment is appropriate if there is no genuine issue of materia l fact and the moving party is entitled to judgment as a matter of law. Celotex C orp. v. Catrett , 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, we view the evidence in the l ight most favorable to the nonmovant. Kingsford v. Salt Lake City Sch. Dist. , 247 F.3d 1123, 1128 (10th Cir.- 5 -

2001). A. Standing It is well established that to litigate a justiciab le controversy, the plaintiff must have standing to maintain suit. Lujan v. Defe nders of Wildlife , 504 U.S. 555, 560 (1992); Morgan v. McCotter , 365 F.3d 882, 887 (10th Cir. 2004). “There are three requirements of Article III standi ng. First, the plaintiff must suffer an injury in fact. An injury in fact is an invasion of a legally protected interest that is (a) concrete and particularized an d (b) actual or imminent, i.e., not conjectural or hypothetical.” Essence, Inc. v. City of Fed. Heights , 285 F.3d 1272, 1280 (10th Cir. 2002) (internal citations andquotations omitted). A plaintiff must also demonstrate that (2) the harm c omplained of is fairly traceable to the defendant’s conduct and (3) that a favorable ruling from the court would redress plaintiff’s injury. Id. Defendants first challenge the district court’s grant of summary judgment by arguing that Ms. Copelin-Brown lacks standing, c iting Morgan . In short, they argue that Ms. Copelin-Brown has suffered no injuryin fact since she receives total disability benefits, and further due process hearings would not have alleviated any harm. Aplt. Br. at 28-29. Whether a denial of due process constitutes an inju ry in fact requires the court to determine whether, “assuming the truth andvalidity of all of a plaintiff’s- 6 -

factual allegations and legal theories, the due pro cess protections would have alleviated any harm.” Morgan , 365 F.3d at 889. In Morgan , the court found that the plaintiff lacked standing because he failed to show “any intention, desire, or plan to continue his employment in a career service position with the State of Utah.” Id. at 888. In the instant case, unlike Morgan , Ms. Copelin-Brown applied for numerous positions in the SPO, includin g her former receptionist position, Aplee. Br. at 4, thus exhibiting a desire , intention, or plan to continue employment with the State of New Mexico. Thus, she has suffered an injury in fact from the loss of her eligibility and consideration for such positions. Regarding Defendants’ argument that Ms. Copelin-Bro wn suffered no injury in fact because she concedes that she was se verely disabled and thus could not have prevailed if a hearing were provided, Arti cle III standing does not require that Ms. Copelin-Brown would obtain concret e relief from the desired process. Lujan , 504 U.S. at 573 n.7; Rector v. City & County of D enver , 348 F.3d 935, 943 (10th Cir. 2003) (“Parties may sufferinjury in fact from defective procedures even if, at the end of the day, they wou ld not have prevailed on the merits.”). Of course, “the Constitution does not p rotect procedure for procedure’s sake.” Rector , 348 F.3d at 943. Rather, “there must be some fac tual dispute between an employer and a discharged employee” thathas some significance. Codd v. Velger , 429 U.S. 624, 627 (1977). In other words, if Ms. Copelin-Brown- 7 -

“does not challenge the substantial truth of the material in question, no hearing would afford a promise of achieving that result.” Id. at 627-28. In this case, although Ms. Copelin-Brown does not c laim that she was not permanently disabled, she does argue that the SPO f ailed to comply with state regulations by failing to properly document attempt s to accommodate her medical restrictions or make reasonable efforts to find oth er suitable positions. N.M. Admin. Code tit. 1, §§ 7.10.13(B)(1) & (2). Thus, at the time of her termination, there was a significant dispute between Ms. Copelin -Brown and Defendants that could have been resolved in a post-termination hear ing. Ms. Copelin-Brown has also satisfied the second req uirement of traceability by clearly demonstrating that the named defendants were responsible for this alleged deprivation, a fact that is not disputed. Finally, the state argues that because Ms. Copelin-Brown receives total disabilitybenefits, a favorable ruling from the court would fail to redress her injury. H owever, even if Ms. CopelinBrown’s dismissal was justified on the merits, her right to procedural due process entitles her to at least nominal damages. See Carey v. Piphus , 435 U.S. 247, 266 (1978). Thus, court-awarded compensation would pro perly redress Ms. CopelinBrown’s injury. B. Fourteenth Amendment Violations
1. Due Process- 8 -

The Fourteenth Amendment protects citizens from the deprivation of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “[P]rocedural due process ensures that a state will not deprive a person of life, liberty or property unless fair procedures are usedin making that decision.” Archuleta v. Colo. Dep’t of Insts., Div. of Youth S ervs. , 936 F.2d 483, 490 (10th Cir. 1991). “To determine whether a plaintiff was denied procedural due process, we engage in a two-step inquiry: (1) Did the indivi dual possess a protected interest to which due process protection was applic able? (2) Was the individual afforded an appropriate level of process?” Hennighv. City of Shawnee , 155 F.3d 1249, 1253 (10th Cir. 1998). Property interests are not created by the Constitut ion, but rather by independent sources such as state law. Cleveland B d. of Educ. v. Loudermill , 470 U.S. 532, 538 (1985). “[W]hen a person’s employment can be terminated only for specified reasons, his or her expectation of contin ued employment is sufficient to invoke the protections of the Fourteenth Amendment. ” West v. Grand County , 967 F.2d 362, 366 (10th Cir. 1992). New Mexico lawclearly states that employees that have completed a probationary period of one year may only be terminated for just cause. N.M. Stat. Ann. § 10-9- 18(F); Barreras v. State of N.M. Corrs. Dept. , 62 P.3d 770, 775 (N.M. Ct. App. 2002); N.M. Admin . Code tit. 1, § 7.11.10 (only non-disabled employees).- 9 -

Nevertheless, Defendants first argue that because the regulation in question states that a permanently disabled employee can be terminated without a hearing or opportunity to appeal, Ms. Copelin-Brown has no protected property interest. Aplt. Br. at 12-14. Defendants also argue that the re is no legitimate expectation of continued employment when the essential function s of one’s job cannot be performed. Aplt. Reply. Br. at 8-9. We disagree. The challenged regulation provides that certain determinations must be made b efore the employee may be terminated because of permanent disability, such as whether the disability is permanent, whether accommodations have been made, a nd whether the state had considered the employee for other positions. These restrictions on the government’s ability to terminate are sufficient to create a property interest in Ms. Copelin-Brown. Hennigh , 155 F.3d at 1253-54. Moreover, to accept the government’s contrary argument would be to allow th e government, at any time, to unilaterally declare an employee disabled and te rminate that employee without a hearing, thus avoiding due process protections. Once a protected property interest is established, the question then becomes what level of process is appropriate. In general, a post-termination hearing is required. Loudermill , 470 U.S. at 546-47 (stating that the “Due Process Clause requires provision of a hearing ‘at a meaningful ti me’” after termination). Even when the employer articulates a permissible reason for discharge, “[w]ithout- 10 -

adequate due process protection, an employee . . . can never discover whether the reasons for her discharge are true – or are false a nd a mere subterfuge.” Goudeau v. Indep. Sch. Dist. No. 37 of Okla. City, Okla. , 823 F.2d 1429, 1431 (10th Cir. 1987). In this case, Ms. Copelin-Brown challenges only the efficacy of the posttermination process. To evaluate the constitutiona lity of post-termination process, we must view it in light of the pre-termin ation procedures it follows. Where, as here, the pre-termination process offers minimal opportunity for the employee to present her side of the case, the proce dures in the post-termination hearing become much more important. Benavidez , 101 F.3d at 626. “Such a post-termination hearing represents the only meanin gful opportunity the employee has to challenge the employer’s action . . . . ” I d. In the instant case, Ms. Copelin-Brown, under N.M. Admin. Code tit. 1, § 7.1 0.11, was afforded no posttermination hearing or opportunity to appeal the SP O’s decision to terminate her. Accordingly, the district court was correct in find ing that the lack of procedural due process violated Ms. Copelin-Brown’s constituti onal rights.

2. Equal Protection The Fourteenth Amendment also prohibits a state fro m denying “any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Both parties agree that disabled persons are a non-suspect class and rational- 11 -

basis scrutiny applies. City of Cleburne v. Clebur ne Living Ctr. , 473 U.S. 432, 442-46 (1985); Davoll v. Webb , 194 F.3d 1116, 1145 (10th Cir. 1999). Under the rational basis test, the court upholds the policy “ if there is ‘any reasonably conceivable state of facts that could provide a rat ional basis for the classification.’” Spragens v. Shalala , 36 F.3d 947, 951 n.3 (10th Cir. 1994) (quoting FCC v. Beach Communications, Inc. , 508 U.S. 307, 313 (1993)). As Defendants point out, the administrative ease of not requiring a hearing can be “a reason sufficient to withstand rationality review.” Cf. Davoll , 194 F.3d at 1146. However, Defendants’ answer, response to Plaintiff’s motion for summary judgment, and appellate briefs fail to pres ent any facts showing that the regulation in question eased administrative burdens . Further, the Court has stated that within rational basis scrutiny, “[t]he State m ay not rely on a classification whose relationship to an asserted goal is so attenu ated as to render the distinction arbitrary or irrational.” City of Cleborne , 473 U.S. at 446. In the instant case, because Defendants have only alluded to the adminis trative burdens associated with providing disabled persons post-termination he arings or appeals, we find the distinction between disabled and non-disabled perso ns arbitrary and irrational. Alternatively, Defendants argue that because termin ated disabled employees are not provided a hearing, they are dism issed without prejudice. Thus, Defendants argue they are not stigmatized by being labeled as “disabled.”- 12 -

However, regardless of the label attached, the empl oyee will nevertheless have to describe the cause of her termination when seeking future employment. If the employee does not seek future employment, the effec t of any stigma would be minimal. Thus, the purported goal of preventing st igma is irrational. In conclusion, because the relationship between the di stinction based on disability and the government’s interest are so attenuated and because refusing administrative hearings and appeals to avoid stigmais irrational, the regulation cannot pass muster under the rational basis standar d. C. Qualified Immunity We review de novo a district court’s ruling on qual ified immunity. Farmer v. Perrill , 288 F.3d 1254, 1259 (10th Cir. 2002). To determi ne whether a plaintiff can overcome the qualified immunity defense, “firstwe determine whether the plaintiff has asserted a violation of a constitutio nal or statutory right, and then we decide whether that right was clearly established s uch that a reasonable person in the defendant’s position would have known that [his ] conduct violated that right.”
Garramone v. Romo , 94 F.3d 1446, 1449 (10th Cir. 1996) (citation omi tted). As previously discussed, Ms. Copelin-Brown has adeq uately demonstrated a violation of her constitutional rights. Thus, we turn directly to the question of whether those constitutional rights were “‘sufficie ntly clear that a reasonable official would understand that what he is doing vio lates’” them. Hannula v. City- 13 -

of Lakewood , 907 F.2d 129, 131 (10th Cir. 1990) (quoting Ander son v. Creighton , 483 U.S. 635, 640 (1987)). In doing so, we must focus only on the state of the law at the time of the defendant’s act ions. Id. In this case, Ms. Copelin-Brown has clearly demonstrated that federal law, Roth , 408 U.S. at 576-77, and, in general, New Mexico l aw, N.M. Stat. Ann. § 10-9-18(A), require that when a state employee is t erminated, that employee has a right to a hearing to challenge the termination. M oreover, the termination of a permanent state employee requires the opportunity f or a post-termination hearing and appeal. Loudermill , 470 U.S. at 546-47. The government’s argument th at the presence of the regulation in question on the books absolves any liability is without merit since “the presence of a statute is notrelevant to the question of whether the law is ‘clearly established.’” Roska v . Peterson , 328 F.3d 1230, 1252-53 (10th Cir. 2003) (emphasis in original). Defendants also argue that qualified immunity is ap propriate because “all but the plainly incompetent or those who knowingly violate the law” are entitled to immunity from suit. Malley v. Briggs , 475 U.S. 335, 341 (1986). At the same time, the Court has stated that “[i]f the law was c learly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow v. Fit zgerald , 457 U.S. 800, 818- 19 (1982). In this case, the law has been establis hed for thirty years; the Due- 14 -

Process Clause requires the state to provide an opp ortunity for a hearing whenever a permanent state employee is terminated. Roth , 408 U.S. at 577. Moreover, New Mexico law provides permanent, non-di sabled employees a right to appeal their termination. N.M. Stat. Ann. § 10- 9-18(A). While the Defendants’ argue that they should not be held liable because they were only enforcing state law, this is only on e factor in our analysis. Roska , 328 F.3d at 1253. Defendants in this case were notmere minions obeying commands, but rather were directors and supervisors of the New Mexico SPO. Aplt. Reply. Br. at 1-2. Thus, they have expertise in the hiring and firing of state employees, including relevant state and federal law . Accordingly, we find that the law in question was clearly established and a r easonable director or supervisor of the state SPO would have known that his or her a ctivity violated Ms. CopelinBrown’s constitutional rights. D. Contract Claim Defendants also challenge the district court’s grant of summary judgment with regard to Ms. Copelin-Brown’s suit for breach of contract. Aplt. Br. at 19. However, in resolving cross-motions for summary jud gment, the district court did not rule on Ms. Copelin-Brown’s second claim, alleg ing breach of an implied covenant of good faith and fair dealing asserted ag ainst the SPO. Nevertheless, a decision not concluding proceedings in the districtcourt can, under certain- 15 -

limited circumstances, present an interlocutory app eal which may be heard by an appellate court. Johnson v. Jones , 515 U.S. 304, 315-16 (1995). In the instant case, Defendants’ argue that we may hear their appeal because the breach of contract claim is inextricabl y intertwined with the due process issue. This argument must fail for two rea sons. First, the breach of contract claim is not necessarily related in any way to a violation of due process. Rather, the district court seemed to find that Defe ndants breached an implied employment contract by not properly performing the procedures required by the statute in question. Second, although we have juri sdiction to consider the appeal of the denial of qualified immunity, Armijo v. Wago n Mound Pub. Sch. , 159 F.3d 1253, 1258 (10th Cir. 1998), only issues inextricab ly intertwined with the qualified immunity holding, such as the § 1983 due process and equal protection claims, are subject to interlocutory appeals. Stew art v. Oklahoma , 292 F.3d 1257, 1260 (10th Cir. 2002); Moore v. City of Wynnewood , 57 F.3d 924, 929-30 (10th Cir. 1995). We fail to see such a relationship between the breach of contract claim and the district court’s qualified immunity f inding. Thus, we lack jurisdiction to hear Defendants’ appeal of the cont ract claim.
AFFIRMED.