The Honorable Richard G. Kopf, United States District Judge for the District 1 of Nebraska, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2331

___________ Jo-Anne E. Coleman, * * Appellee, * * v. * Appeal from the United States District * Court for the District of Minnesota. Katrina Reed, sued as Katrina R. Reed, * as an individual and in her official * capacity; Betty J. Webb, as an individual * and in her official capacity; Daniel * Loewenson, as an individual and in his * official capacity, * * Appellants. *

___________ Submitted: March 12, 1998 Filed: June 26, 1998

___________ Before BEAM, and HEANEY, Circuit Judges, and KOPF , District Judge. 1

___________ BEAM, Circuit Judge.
Three government officials who were sued in their individual capacities under 42 U.S.C. § 1983, appeal the district court's denial of thei r claim of qualified immunity.-2-

Because we fi nd that the suit fails to allege that the officials violated a clearl y established constitutional right, we reverse.

I. BACKGROUND
Because this appeal is before us on a motion for summary judgment, we view the facts in the light most favorable to the non-moving party. See Kraft v. Ingersoll-Rand Co. , 136 F.3d 584, 586 (8th Cir. 199 8). In December of 1992, Jo-Anne Coleman was hiredby the Minneapolis Public School District as principal of Lincoln Elementary School (Lincoln). After she had worked there for about fi ve months, the school district received an anonymous telephone call alleging that Coleman had a prior felony record and h ad served time in prison. School officials investigated and discovered tha t Col emanhad been convicted of several counts of Medicaid fraud and had serve d eighteen months in prison. School officials also examined Coleman's employmen t application which asked, "Have you ever been convic ted of a misdemeanor or felony?" Coleman wrote "N/A."

On Ju ne 7, 1993, Daniel Loewenson, the school district's human resource s dir ector, telephoned Coleman and asked her to attend a meeting the next day with Katrina Reed, one of the school district's associate superintendents. Lo ewenson did not tell Coleman the purpose of the meeting, but did tell her that she could bring a union representative. Coleman attended the meeting accompanied by an attorney. Ree d confronted Coleman with the conviction and Coleman's failure to reveal it on th e application. Coleman acknowledged both. Reed then offered Colem an the opportunity to res ign. Coleman refused and requested a formal hearing. Reed responded tha t Coleman was not entitled to any additional hearing, and infor med her that if she did not resi gn, she would be terminated at that evening's meeting of the Minneapolis Publi c School Board of Education (Board).Coleman also alleged breach of contract and intentional infliction of emotional 2 distress. Those claims are not before us on appeal. -3- That evening, Reed presented evidence of Coleman's conviction and emplo yment applica tion to the Board at an executive session, which was closed to the public

. Following the executive session, the Board held its regular public meeting. Both Coleman and her attorney atten ded this meeting, but, although several members of the public voiced support for Coleman, neither Co leman nor her counsel sought to address the Board. The Bo ard voted to discharge Coleman effective July 12, 1993. Coleman appealed her discharge to the Minnesota Court of Appeals. The court denied th e petition, and the Minnesota Supreme Court summarily denied her petition for further review.
After Coleman's discharge, the Lincoln Elementary Sch ool community was in an uproar. A flier circulated speculatin g about the "true reason" for Coleman's discharge. In resp onse to this confusion, the school district distributed a statement to all Lincoln elementary students informing th em that, "Jo Coleman was convicted of a felony prior to being employed by the district and served time at the Shakopee Women' s Reformatory." In a letter accomp anying the statement, Betty Webb, another associate superintendent for the district, explained that the statement was "issued by th e Minneapolis Public Schools with the knowledge and approva l of the Human Resources Department and my office."

Coleman sued Webb, Reed and Loewenson (collectively, "the administrators") in both their official and individual capacities under 42 U.S.C. § 1 983. She alleged that the administrators deprived her of property a nd liberty interests without due process of law. The a dministrators moved for summary judgment based on qualified immunity. 2 The district court denied the motion and the administrators appeal.As an initial matter, the administrators argue that theyare not proper defendants 3 in the property interest claim because the Board, not they, actually term inated Coleman. Loew enson and Reed also argue that they were not involved in the liberty interes t claim. Our holding makes it unnecessary to reach these arguments. -4- II. DISCUSSION
The administrators assert that they are entitled to qualified immunity as a matter of law. In assessing that claim, we first consider whether Coleman has alleged th e violati on of a constitutional right. See County of Sacramento v. Lewis , 118 S. Ct

. 1708, 1714 n.5 (1998) ; Siegert v. Gilley , 500 U.S. 226, 232 (1991). Coleman asserts that the administrators failed to pro vide her with procedural due process, claiming that her disc harge deprived her of a property interest in continued employment with th e school district and that dissemination of the statement approved by Webb deprived her of a liberty interest in her good name and reputation. 3

A. Property Interest Claim
Coleman argues that her employment contrac t entitled her to be discharged only for cause. The administrators respond that Coleman was a probationary employee , terminable at will. This is a question of state law which we will leave to the Minnesota state courts. See Board of Regents v. Roth , 408 U.S. 564, 577 (1972). We wil l assume that Colem an had a property interest in her job. However, even assuming the depriv ation of a protected interest, we find that Coleman has not alleged a constitutional violation because she was provided adequate pre-termination process.

In C leveland Board of Education v. Loudermill , the Supreme Court held that a "hearing" wa s necessary prior to the termination of a tenured public employee. 47 0 U.S. 53 2, 545 (1985). This hearing is intended to serve as "an initial check agains t mistaken decisions—essentially, a determination of whether there are reasonabl e grounds to believe that the charges against the employee are true and support theWe note that Coleman's case di ffers from Winegar v. Des Moines Independent 4 Community School Distr

ict , because unlike Winegar, Coleman had the opportunity to address the admini strators who made the termination recommendation, and the Board members who made the discharge decision. 20 F.3d 895, 901 (8th Cir. 1994). -5- proposed action." Id. at 545-46. Rather than prescribe a se t format for pre-termination hea rings, the Court emphasized that "[t]he essential requirements of due process . . .
are notice and an opportunity to respond," and that "[t]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of th e employer's evidence, and an opportunity to present his side of the story." Id. at 546.
The pre-termination procedure afforded Coleman by the administrators satisfied the requirements established in Loud ermill

. See Powell v. Mikulecky , 891 F.2d 1454, 14 59 (10th Cir. 1989) (finding that confrontation in which employee was asked an d
answer ed two questions was sufficient pre-termination hearing under Loudermill )

. Coleman received oral notice of the charge against her when Reed confronted her faceto-face in the June 8 meeting. See, e.g. , Riggins v. Board of Regents , 790 F.2d 707, 711 (8th Cir. 1986) (holding that employ ee did not have to be notified of charges prior to meeti ng). She was represented by an attorney at that meeting. Coleman had a n opportunity to rebut the charge, but chose instead to admit to it. Contrary t o Coleman's assertion, Loudermill does not impl y that there must be a delay between the "noti ce" and the "opportunity to respond" accorded to a public employee. See, e.g. , Demming v. Housing and Redevelopment Auth. , 66 F.3d 950, 953 (8th Cir. 1995 ) (rejectin g plaintiff's claim that she was "ambushed" by charges and needed time t o pre pare an adequate response). Finally, Coleman has not identified "any information she wo uld have used in rebuttal had she had more notice." Riggins , 790 F.2d at 711.

In addition to her meeting with Reed, Coleman had a second opportunity t o respond to the charge against her. The evening session of the Board occurred afte r Coleman became aware of the ch arge. However, Coleman did not utilize this second 4We do find it odd, however, that Coleman has maintained that her crimina l 5 record was public knowledge and was generally known within the community o f educators, while simultane ously claiming that publication of this information impaired her employment opportunities in education.
-6- opportunity to "present [her] side of the story." Loudermill , 470 U.S. at 546. Although she had counsel present to speak for her, and even after the Board heard from several memb ers of the public regarding her proposed termination, Coleman remained silent. The admin istrators cannot be faulted for Coleman's failure to take advantage of thi s additional opportunity to be heard. See Riggins , 790 F.2d at 711.
Accordingly, Coleman has not alleged a violation of her constitutional right to procedural due process and the administrators are entit led to summary judgment on her property interest claim.

B. Liberty Interest Claim
Coleman asserts that the administrators deprived her of a liberty interest without due proces s. A liberty interest may be implicated when a governmental employe r makes stat ements that may seriously damage the employee's good name. Roth , 40 8 U.S. at 573. A deprivation of constitutiona l magnitude may occur if such an employee is not granted the opportunity to clear hi s or her name. Id. Therefore, in order to state
a claim under section 1983 for denial of due process based on the loss of a protected li berty interest, Coleman must establish three things. First, she must show that th e
reason for h er discharge stigmatized her. See Shands v. City of Kennett , 993 F.2 d 1337, 1347 (8th Cir. 1993). Second, she must show that the administrators made those
reas ons public. See Merritt v. Reed , 120 F.3d 124, 126 (8th Cir. 1997). The district court found that Coleman had met these two elements of her liberty interest claim, and we are inclined to agree. Finally, Coleman must establish that she denied the charges 5-7-

for which sh e was terminated. See Codd v. Velger , 429 U.S. 624, 627 (1977) (pe r curiam). Coleman has not satisfied this third requirement.
The district court, citing Pollock v. Baxter Manor Nursing Home , held that the truth of these charges was irrelevant to Coleman's liberty interest claim. 716 F.2d 545, 546-47 (8th Cir. 1983) (per curiam) . In Pollock , the majority held that an employee is not required to prove that the stigmatizing charges are false in order to be entitled to a name-clearing hearing. Id. Howe ver, this court has always required a plaintiff to at least de ny the substantial truth of the charges. See Hogue v. Clinton , 791 F.2d 1318, 1322 n.4 (8th Cir. 1986); Seal v. Pryor , 670 F.2d 96, 99 (8th Cir. 1982). In Pollock , the disch arged employee also contested the accuracy of the allegations. Pollock v

. Baxter Manor Nursing Home , 706 F.2d 236, 237 (McMillian, dissenting), rev'd o n reh'g , 716 F.2d 545 (8th Cir. 1983). There is no purpose in holding a name-clearing heari ng if the charges are uncontroverted. In Codd , the Court explained that a n employee's f

ailure to assert that an allegation "was substantially false . . . is fatal t o [his] claim under the Due Process Clause that he should have been given a hearing." 429 U.S. at 627.

In t his case, Coleman has never denied that she has a felony record, that sh e
se rvedtime in prison, and that she failed to apprise the school district of these facts

. These are the only cha

rges published in the statement approved by Webb. Therefore, Coleman was not entitled to a name-clearing hearing.

Even if Coleman were entitled to a name-clearing hearing, procedural du e proces s was satisfied because she received not one, but two. The due proces s requirements pronounced in Loudermill apply equally to liberty and property interests. See Schleck v. R amsey County , 939 F.2d 638, 642-43 n.5 (8th Cir. 1991). Coleman had a chance to explain the allegations in her meeting with Reed and before the Board. This is more than the administrators were constitutionally required to provide.The Shakopee School District was, of course, fully aware of Coleman’ s 6 conviction since it hired Coleman while she w as in prison. When Coleman applied for the principal position at Lincoln, she listed Shakopee Public Schools as a reference

. Specifically, she listed Joane Block as her Sha kopee reference. ( See Appellant’s App. at 31.) The record is silent as to whether Minneapolis school officials ever contacted Ms. Block or anyon e in the Shakopee school system. Thus, we do not know whether -8- Coleman has failed to allege the deprivation of a constitutional right. Th e administrators are therefore ent itled to summary judgment on her liberty interest claim.

III. CONCLUSION

For the foregoing reasons, the decision of the district court is reversed. Th e administrators are entitled to summary judgment on the claims discussed above. The case is remanded for proceedings consistent with this opinion.
HEANEY, Circuit Judge, dissenting.

I.
I respectfully dissent. V iewing the facts in the light most favorable to Coleman, I believe that the district court correctl y denied the administrators’ motion for summary judgment. While I do not quarrel with the brief statement of facts set forth by th e majority, I believe it is necessary to supplement them to underscore the administrators’ bad faith.

It is, of course, undisputed that Ms. Coleman was convicted of Medicaid fraud in 1985. Nonetheless, six months int o serving her eighteen-month prison sentence, she received approval from the Minnesota Board of Teaching to resume her career as a teacher. While serving her sentence, Coleman obtained emp loyment with the Shakopee School District and worked in that district for five years. Nothing in this record 6Minn eapolis school officials, including the administrators, knew about Coleman’ s

previo us incarceration. If they had contacted Shakopee officials as part of their “due diligence” before hiring Coleman, it is hard to imagine that this subject did not come up. -9- indi cates that her service with the Shakopee School District was anything other tha n satisfactory.
In 1990, Coleman applied for and w as hired by the Minneapolis School District as an assistant

principal intern. The record is silent as to whether Coleman was asked at that time if she had a prior felony conv iction. She served the full year as an assistant principal intern. Again, there is nothing in this record to indicate that her service was anything other than satisfactory. The following year, Col eman was hired as an assistant
se condary principal with the Osseo Public Schools. Again, there is nothing in th e record to indicate that her service was anything other than satisfactory.

In1992, Coleman returned to the Minneapolis School District as a principal at Lincoln Elementary School. Notably, Coleman was Lincoln’s fifth principal in just four months. W hen the Minneapolis School Board hired Coleman, there was significan t opposition to her hiring. Several people sent letters urging that Coleman be remove d
as qu ickly as possible. One letter stated: “GET THAT GOD DAMN BLAC K WIDDOW [sic] OUT OF THERE AS QUICKLY AS POSSILBE!” [sic] (Appellee’s App. at 17.)
After serving as Lincoln’s principal for several months, on June 7, 1993, C oleman
was contacted by Daniel Loewenson, the district’s human resources director

. Loewe nson asked Coleman to attend a meeting the next day with Associat e Sup erintendent

Katrina Reed and refused to disclose the purpose of the meeting

. Lo ewenson did say, however, that Coleman could bring a union representative

. Coleman brought her attorney. At the meeting, Reed told Coleman that someoneThe record indicates that whenever the school board and/or schoo l 7 administration contempla

ted disciplinary action, such actions were preceded by seven day advance written notice. The notice stated the nature of the allegations an d provid ed an opportunity for a response. For example, on May 7, 1993, Associat e Superintendent

Betty Webb sent Coleman a notice of deficiency indicating tha t Coleman had not handled herself properly when disciplining a student. Coleman was provided the above-mentioned procedural safeguard s as they relate to the May 7, 1993 deficiency notice. -10- “anonymously” informed the school district that Coleman had a prior felony conviction. Reed sta ted that she researched Coleman’s criminal record and confirmed th e conviction.
Coleman did not dispute the criminal convictio n or the fact that she wrote “N/A” on her employment application. Rather than respond to the trial by ambush, Coleman’s attorney requested a hearing on the matter. Reed allegedly responded that Colema n

“ had n o right to any type of hearing .” Reed informed Coleman that absent a 7 resignation, Coleman would be terminated that evening at the Board meeting.

That evening, the Board met privately and voted to suspend Coleman for thirty days with pay and terminate her employment on July 12, 1993. After the privat e meeting en ded, the Board then held a public meeting and announced that Colema n
wo uld be terminated. It is important to note that the Board’s agenda was printed o n June 3, 1993, five days before the meeting actual ly took place, and specifically referred to Coleman’s “release.” At the public meeting, the Board did not specify the basis for Colem an’s termination and neither Coleman nor her attorney addressed the Board

. Eventually, the Board publicized its “true” reasons for terminating Coleman an d circulated an unsigned notice to over 600 Lincoln elementary f amilies and staff. It read:
STATEMENT RELATIVE TO JO COLEMAN,

PRINCIPAL,The majority c ites Demming v. Housing & Redevelopment Authority , 66 F.3d 8 950, 953 (8th Cir. 1995), in support of its conclusion that Coleman was no t “ambushed.” De mming is inapposite. In Demming , similar to Riggins , the employee -11- LINCOLN ELEMENTARY SCHOOL

JUNE 9, 1993
Minne apolis Public Schools received and confirmed informatio n that Lincoln Elem

entary Principal, Jo Coleman was convicted of a felony prior to being employed by the district and served time at the Shakope e Women ’s Reformatory related to this conviction. The District was no t made aware of the conviction by Mr s. Coleman at the time Mrs. Coleman was employed. The District has sus pended Mrs. Coleman with pay while these and other matters are being further reviewed and addressed.
(Appellee’s App. at 31.) Because of confusion as to t he source of the notice, the Board circulateda second notice, printed on Board letterhead. The second notice explained that t he human resources office erroneously disbursed the first notice without firs t cop ying the notice onto official letterhead. Thereafter, Coleman brought suit. Th e di strict court denied the administrators’ motion for summary judgment on Coleman’ s constitutional law claims.

II.
The majority concludes that the admini strators provided Coleman with sufficient preterminat ionprocess. I disagree. The majority cites Riggins v. Board of Regents , 790 F.2d 707, 711 (8th Cir. 1986), for the proposition that an employer need not notify
an employee prior to a pretermination hearing. Riggins is easily distinguishable. I n Riggins , there was no doubt that the employee was aware of the allegations to b e discussed at her pretermination hearing. See id. at 709. In this c ase, however, Coleman hadno idea what the June 8 meeting would involve. Not only was Colema n “ambushed,” but the pretermination administrators failed to follow their well-

8was well aware of the hearing subject matter. For example, Demmin g “knew the board

was in the process of reviewing her performance” before her pretermination hearing. Demming , 6 6 F.3d at 953. Unlike the employees in Demming and Riggins , th e majority is unable to show that Coleman was even remotely aw are of the reason for the June 8 “pretermination hearing.” -12- established polici es for disciplining and/or terminating employees. The record reveals that whenever disciplinaryaction was contemplated, seven-day advance written notice
was re quired. While the required notice was supposed to reflect the nature of th e allegations and provide an opportunity for one to respond, the administrators did no t comply with these requirements.

The rec ord reveals an even starker display of bad faith in that the Board ha d already decided to te rminate Coleman prior to the June 8, 1993 meeting. The Board’s agenda was printed on June 3, 1993, and it specifically referred to Coleman’s “release.” Moreover, the administrators’ bad faith is bolstered by Reed’s alleged comment tha t Coleman “had n o right to any type of hearing.” “Even where the facts are clear, th e appropria teness or necessity of the discharge may not be; in such cases, the onl y meaningf ulopportunity to invoke the discretion of the decision-maker is likely to b e before the termination takes place.” Cleveland Board of Education v. Loudermill , 470 U.S. 532, 543 (1985) (citations omitted).

In m y view, a reasonable jury could conclude that Coleman was not provide d proper pretermination notic e, nor was she allowed to “present [her] side of the story.” Id. at 543. The majori ty states, however, that “[i]n addition to her meeting with Reed, Coleman had a secon d opportunity to respond to the charge against her. . . . However, Coleman did not utilize this second opportunity to ‘present [her] side of the story.’ ” Ante at 5-6, (quoting Loudermill , 470 U.S. at 546). Reed allegedly told Coleman that if Coleman did not i mmediately resign, she would be terminated at the Board meeting. Loudermill contemplates “proposed action” against an employee before termination.-13-

470 U. S. at 546. While Coleman may not be entitled to the hearing of her choice, the Constit utiondemands that she be given meaningful notice and an opportunity t o respond. Consequently, because a reasonable jury could conclude that th e admin istrators had decided to terminate Coleman before providing a prope r preterminat

ion hearing, the district court properly denied the administrators’ summary judgment motion. III.

I also be lieve that there is a fact issue as to whether the appellants deprive d Co lemanof a liberty interest without due process. Coleman argues that th e administrators distributed two notices concerning her conviction, prison term, an d employment

termination, to over 600 Lincoln elementary families and staff, withou t providing her prior notice or a meaningful opportunity to respond.
In my view, there is noquestion that the administrators made “charge[s] against [Coleman] that might seriously damage [her] standing and associations in [her ] community.” Board of Regents v. Roth , 408 U.S. 564, 5 73 (1972). “Where a person’s g o od name, reputation, honor, or integrity is at stake because of what the government is doi ng to [her], notice and an opportunity to be heard are essential.” Wisconsin v

. Constantineau , 400 U.S. 433, 437 (1971). The majority concedes that th e reasons given for Coleman’s discharge stigmatized her and that the admi nistrators made those reasons publi c. The majority concludes, however, that Coleman had an affirmative obligation to deny the charges.

The pr oblem with the majority’s reasoning is that Coleman did not have a n opportunity to deny the charges. The administrators released two notices abou t Coleman’s past after

they provided Coleman with her so-called pretermination hearing. Witho ut informing Coleman, the administrators released the first stigmatizing notic e about Coleman on June 9, 1993, the day after Coleman w as informed that she would be terminated. On June 10, 1993, the appellants released the second stigmatizing-14-

notice. The fact that the administrators released the damning notices after they ha d already decided to terminate Coleman is no great surprise since the administrator s apparently did not believe that Coleman was entitled to any type of process in the first place. Although their actions come as no great surprise, they are still unconstitutional and I would affirm the district court.

IV.
Finally, the majority determined that it need not decide whether the admin istrators were entitled to qualified immunity because Coleman’s suit failed to allege that they had violated a clearly established constitutional right. Having already concluded that th e ad ministrators violated Coleman’s constitutional rights, I now turn to whether th e officials are entitled to qualified immunity.
Generally , qualified immunity is available for “government officials performing discretionary functions . . . insofar as their conduct does not violate clearly established statuto ry or constitutional rights of which a reasonable person would have known. ” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982) (citations omitted). In determinin g whether the administrators’ conduct entitles them to such immunity, we look to whether it was objectively reasonable. Schl eck v. Ramsey County , 939 F.2d 638, 641 (8th Cir. 1991) (citation omitted). In this regard, I agree with the district court when it stated:

The e vidence in this case suggests that the individual defendants wer e quite familiar with the Loudermill notice and hearing requirements; the y had actually participated in such proceedings d uring the . . . period of time tha t plaintiff was employed with the District. In fact, just one month earlier in May, 1993, the individual defe ndants had provided plaintiff with the se same protections during disciplinary proceedings against her. Any assertion by the individual defendants that they did not know plaintiff was entitledto such protections upon termination are simply incredulous i n light of their prior actions.-15-

Coleman v. Reed , No . 3-95-603, Mem. & Order, slip op. at 18-19 (D. Minn. Mar. 26, 1997). Applying the standard of objective reasonableness t o the administrators’ actions in this case clearly compels the conclusion that they do not enjoy qualified immunity.

V.
For the reasons stated above, I believe that there are fact issues warranting a trial and the administrators are not entitled to q ualified immunity. Therefore, I would affirm the district court and allow Coleman to proceed with a trial on the merits.
A true copy.

Attest.
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.