1 Local Rule 47.5 provides: “The publication of opinions that have

no precedential value and merely decide particular cases on the

basis of well-settled principles of law imposes needless expense on

the public and burdens on the legal profession.” Pursuant to that

Rule, the Court has determined that this opinion should not be

published. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-60073

Summary Calendar

HERMAN SHOWS,

Plaintiff-Appellant,

VERSUS

WAYNE COUNTY SCHOOL DISTRICT, ET AL.,

Defendants-Appellees

Appeal from the United States District Court

For the Southern District of Mississippi

(4:93cv30LN)

November 8, 1995 Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM: 1

Plaintiff/Appellant, Herman Shows, claims his due process

rights were violated when his fifth grade teaching position was

terminated after a hearing he requested but did not attend. The

district court dismissed Shows’s claims by summary judgment finding2 Although the parents’ other allegations against Shows charged

sexual misconduct, the incident with the jump rope appears to have

been disciplinary in purpose, and there is no suggestion of any sexual quality in it.

3 A glossary of terms will be helpful. The terms “suspend” and

“dismiss” mean continued employment but no classroom duties pending

final determination after hearing . “Termination” means actual

severance of the employment relationship.

2 that the procedures employed by the Defendants afforded Shows

adequate due process and that it lacked jurisdiction over Shows’s

accompanying s tate law defamation and conspiracy claims. Shows

appeals the due process ruling. We affirm.

Facts

On Wednesday, March 31, 1993, a group of parents presented

letters to the Wayne County School District (WCSD) superintendent

accusing Shows of sexual misconduct with their daught ers, fifthgrade students in Shows’s class, and tying one student to her desk

with a jump rope. 2 Later that day, Shows’s principal informed

Shows of the charges, read him the parents’ statements and allowed

Shows to deny or explain the charges. Shows and the principal then

met with the superintendent where the allegations were again

discussed and Shows was given another opportunity to deny or

e xplain the charges. Shows did not deny that he touched the

students, and he affirmed that he tied one of the students to her

d esk. Shows was suspended 3 with pay which was confirmed by a

l etter that also stated that Shows had a right to a h earing,

representation by counsel at the hearing and presentation and

cross-examination of witness.

The following Monday, April 5, 1993, the school board convened3

for its regular meeting where the charges were discussed in

executive session outside the presence of the public and Shows.

Either at or before the meeting, each board member was provided

with copies of the parents’ original statements and other

statements taken in the course of the investigation of the charges.

The superintendent verbally presented generalized, hearsay-based

information regarding prior allegations of sexual misconduct with

students. Upon adjourning the executive session, the board voted

to dismiss Shows pending a hearing.

Shows requested a hearing which was scheduled for April 22,

1993 before an independent hearing officer, but neither Shows nor

his attorney attended. As explained by his attorney in

correspondence dated April 16, 19 93, Shows believed that the

defendants had violated Shows’s rights under Mississippi law, there

was no need for a post termination hearing, and Shows would avail

himself of another forum. Shows filed suit in federal court

against WCSD, the superintendent and all five school board members

for defamation, conspiracy and violation of his due process rights.

Standard of Review

Summary judgment is appropriate if the record discloses “that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed.

R. Civ. P. 56(c). Once the moving party has demonstrated that no

genuine issue of fact exists, the nonmovant must come forward with

specific facts showing there is a genuine issue for trial. L ittle

v. Liq uid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994). In4

reviewing the summary j udgment, we apply the same standard of

review as did the district court. W altman v. Int’l Paper Co.

, 875

F.2d 468, 474 (5th Cir. 1989); Moore v. Mississippi Valley State

Univ.

, 871 F.2d 545, 548 (5th Cir. 1989). Mr. Shows has failed to

satisfy his burden.

Due Process

A school board is required to provide notice and hearing

before dismissing a public schoolteacher when the teacher has

tenure or a reasonable expectation of reemployment. M egill v.

Board of Regents of the State of Fla.

, 541 F. 2d 1073 (5th Cir.

1976); Ferguson v. Thomas

, 430 F.2d 852 (5th Ci r. 1970). The

Missi ssippi legislature requires that public school employees be

provided with “notice of the reasons for not offering an employee

a renewal of his contract” and an “opportunity for the employee to

present matters in extenuation or exculpation.” Miss. Code Ann.

§37-9-101 (1972). This protection against arbitrary dismissal

creates an expectation of continued employment and a prot ectable

property interest. M cDonald v. Mims

, 577 F.2d 951 (5th Cir. 1978).

Shows’s employment, therefore, is a protectable property interest.

Shows was off ered a hearing under section 37-9-59 of the

Mississippi Code also which sets out the procedures for discharging

employees for cause. Under this section, the school board makes

the final decisio n after the hearing. Shows chose to forego the

hearing because he believed that the board predetermi ned the

outcome at its earlier meeting. Generally, a person waives his

right to complain of due process violations when he fails to take5

advantage of administra t ive procedures made available to him.

Rathjen v. Litchfield

, 878 F.2d 836 ( 5 th Cir. 1989). One

exception to the general rule is bias or predetermination of the

issues by the decision maker. McCarthy v. Madigan , 503 U.S. 140,

(1992). Shows argues that he falls within the predetermination

aspect of the exception.

Administrative hearing bodies are presumed to discharge their

duties with honesty and integrity. W ithrow v. Larkin

, 421 U.S. 35,

(1975). To overcome the presumption and prove predetermination,

the complaining party must prove that the decisionmaker has an

irrevocably c losed mind prior to the hearing. F ederal Trade

Commission v. Cement Institute , 333 U.S. 683,(1948). Exposure to

non-adversary investigative procedures or familiarity with the

facts is insufficient to impugn the fairness of the board members

at a subsequent adversary hearing. W ithrow v. Larkin

, 421 U.S. at

53-55; Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ.

Ass’n. , 426 U.S. 482, (1976).

Shows relies on Cantrell v. Vickers

, 495 F. Supp. 195 (N.D.

Miss. 1980). In C antrell

, the removal of a third grade teacher was

considered du ring executive sessions at several meetings of the

Board of Trustees. After the meetings, the board provided the

teacher with a specific plan for improvement, noncompliance with

which would result in immediate termination. The court found that

the board “decided [the teacher’s] future as a school teacher” at

the time of the final meeting, before the teacher was granted a

hearing. Id. at 200. Since the Board had predetermined the outcome6

of a subsequent hearing, the court held that the teacher had not

waived her right to assert he r due process claims. I d. Such is

not the case here.

Shows offers, as evidence of predetermination, his subjective

belief that he was fired and a newspaper article reporting he was

fired as opposed to suspended pending hearing. Shows also points

to testimony by board members although all five board members voted

for dismissal pending hearing. Phillip Cooley stated that based on

information received at the meeting, he determined that Shows had

done something wrong but that Shows was given a hearing to clear

himself. Maria Giles testified that she made a personal

determination at the meeting but that a final decision would not be

made until after the hearing. Leah Parson testified that she did

not know whet her Shows had actually committed the acts, believed

the students thou ght he had committed the acts but knew a final

decision would not be rendered until after a hearing. The

testimony before us of Ulmer Pryor and Donnis Shirley does not

address whether either had predetermined the matter.

Shows’s evide nce does not suggest that the board had an

irrevocably closed mind. In contrast to C antrell

, the board did

not reach a decision nor administer a remedy. The evidence

submitted by Shows does not rebut the presumption of honesty and

integrity and does not demonstrate an issue for trial.

AFFIRMED.