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

### SEP 18 1997 

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

TENTH CIRCUIT

RAMON MUNGUIA, Plaintiff-Appellant, v. UNIFIED SCHOOL DISTRICT NO. 328, ELLSWORTH COUNTY, KANSAS; JERRY HUFF, individually; CHUCK CRAWFORD, individually; MIKE PESCHKA, individually; SUE LEDNICKY, individually; RON MAJOR, individually; HOWARD BEHNKE, individually; VIVIAN BLANCHAT, individually, and as board members, Defendants-Appellees. No. 96-3240

Appeal from the United States District Court

for the District of Kansas (D.C. No. 95-1026-MLB)
Michael S. Holland, Russell, Kansas, for Plaintiff- Appellee. E. Craig Kennedy (James T. Mamalis with him on the briefs) of Johnson & Kennedy, Wichita, Kansas, for Defendants-Appellees.

Before BRORBY, HOLLOWAY and EBEL , Circuit Judges.

BRORBY , Circuit Judge.-2-

Plaintiff-appellant Ramon Munguia appeals a distric t court order granting summary judgment in favor of Unified School Distric t #328 ("the Lorraine District") and the individually named defendants-ap pellees. The district court concluded Mr. Munguia did not have a protected prop erty interest in continued employment with the Lorraine District and therefore the Lorraine District's failure to renew his employment contract and denial of his request for a hearing under Kan. Stat. Ann. § 72-5438(b) (1992) did not deprive him of his right to procedural due process. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 (1994) and affirm.

BACKGROUND The following material facts are undisputed. Mr. M unguia taught high school Spanish in three separate Kansas school districts between 1983 and 1994. He had written contracts with Unified School Distri ct #327 ("the Ellsworth District") for the school years 1983-84 through 199 0-91. For the school years 1991-92 and 1992-93, Mr. Munguia had a written contract with Unified School District #401 ("the Chase District"). During the 1 993-94 school year, he executed a one-year, written contract to teach part-time in the Lorraine District, at a salary of $16,777. The 1993-94 contract was the only written contract Mr. Munguia ever executed with the Lorraine District. He had t aught in the Lorraine District-3-

from 1985 through the 1992-93 school year, however, pursuant to a series of inter-district agreements executed by the Ellsworthand Lorraine Districts and the Chase and Lorraine Districts.

Inter-district agreements to purchase the services of teachers from other districts are a common practice in rural Kansas sin ce small districts often do not need, or cannot afford full-time teachers in specia lty areas such as foreign language and special education. Accordingly, by wr itten agreement, the Lorraine District purchased a portion of Mr. Munguia's time as a teacher from the Ellsworth District for the school years 1985-86 thr ough 1990-91. Each school year the Districts executed a new agreement wherebythe Lorraine District agreed to pay the Ellsworth District for a specified share of Mr. Munguia's base salary and social security. Mr. Munguia was not a party t o these inter-district agreements, and at no time did he have a written e mployment contract with, or receive a salary check from the Lorraine District. The Ellsworth District provided Mr. Munguia's salary and benefit package in accordance with that District's policy. It was also the Ellsworth District that co ntributed to the Kansas Public Employees Retirement System on Mr. Munguia's behalf

.-4-

The Chase District and Lorraine District executed s imilar inter-district agreements for the 1991-92 and 1992-93 school years . Mr. Munguia was not a party to these agreements, under which the Lorraine District purchased a portion (six-tenths) of Mr. Munguia's time as a Spanish tea cher from the Chase District. The Chase/Lorraine agreements explicitly recognized Mr. Munguia was an employee of the Chase District. In his deposition, Mr. Munguia testified he elected to sign a contract with the Chase District rather than the Lorraine District because the Chase District had better health insurance than that available through the Lorraine District. He received his salary and benefits from the Chase District in accordance with that District's policy, and it w as the Chase District that contributed to the Kansas Employees Retirement Syst em for Mr. Munguia.

In March 1993, Mr. Munguia notified the Chase Distr ict he was resigning. On July 1, 1993, he began to draw Kansas Employees Retirement System benefits derived from his employment with the Ellsworth and Chase Districts. Mr. Munguia testified during his deposition he knew he would receive retirement benefits if he "didn't go back to Chase," as Kansas law placed certain restrictions on the distribution of benefits upon re-employment after retirement. More specifically, under Kan. Stat. Ann. § 74-4914(5) (1 992), Mr. Munguia could not receive any retirement benefits for any month in wh ich he was re-employed after-5-

retirement, for a salary greater than or equal to $ 10,200, by a school district which had employed him anytime during the final two years of service.

On August 2, 1993, Mr. Munguia executed his first w ritten contract with the Lorraine District; pursuant to that contract he was to teach half-days during the 1993-94 school year at a salary of $16,777. Atthe time he signed that contract, he was also required to complete the fede ral I-9 and W4 forms required of all new employees. In April 1994, the Lorraine District notified Mr. Munguia that it did not intend to renew his contract for th e 1994-95 school year. Upon receipt of the nonrenewal notice, Mr. Munguia reque sted a hearing under Kan. Stat. Ann. § 72-5438(b). The Lorraine District den ied Mr. Munguia's request on the grounds he did not meet the tenure requirements of Kan. Stat. Ann. § 72-5445 (1992).

Mr. Munguia brought this action seeking reinstateme nt, compensatory and punitive damages, and attorney fees, based on alleg ations the defendants denied his request for a hearing in violation of his const itutional right to due process and equal protection under the Fifth and Fourteenth Ame ndments to the United States Constitution. The defendants moved for summary jud gment on the ground that, under Kansas law, Mr. Munguia was not a tenured emp loyee and therefore had no-6-

property interest in continued employment by the Lo rraine District. The district court agreed and granted defendants' motion for sum mary judgment. Mr. Munguia's sole claim on appeal is the district court erred in finding he was not a tenured employee of the Lorraine District and there fore not entitled to a pretermination hearing pursuant to Kan. Stat. Ann. § 7 2-5438(b).

DISCUSSION We review a district court's order granting summaryjudgment de novo, applying the same legal standard as the district co urt. Goldsmith v. Learjet, Inc. , 90 F.3d 1490, 1493 (10th Cir. 1996). Summary judgm ent under Fed. R. Civ. P. 56(c) is proper only if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates there is no genuine i ssue as to any material fact and the moving party is entitled to judgment as a m atter of law. Gullickson v. Southwest Airlines Pilots' Ass'n , 87 F.3d 1176, 1183 (10th Cir. 1996). A "material" fact is one "that might affect the outco me of the suit under the governing law;" a "genuine" issue exists where "the evidence is such that a reasonable jury could return a verdict for the nonm oving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).-7-

Mr. Munguia brought this case pursuant to 42 U.S.C. §§ 1983, 1985 (1994), thus invoking federal question jurisdiction under 2 8 U.S.C. § 1331. However, to determine whether Mr. Munguia has been deprived of his right to procedural due process in contravention of the Fourteenth Amendment, we must first ask whether he possessed a protected interest such that procedu ral due process protections were applicable. This threshold inquiry is determi ned by state law. Bishop v. Wood, 426 U.S. 341, 344 (1976); Farthing v. City of Shawnee , 39 F.3d 1131, 1135 (10th Cir. 1994). We review the district court’s application and interpretation of state law de novo. Farthing , 39 F.3d at 1135.

This case centers on application of the Kansas Teac her Due Process Act, Kan. Stat. Ann. §§ 72-5436 to -5446 (1992 & Supp. 1 996). Under that Act a school district may elect not to renew a tenured te acher's contract only for good cause and after providing the teacher with timely n otice and an opportunity for a hearing. Kan. Stat. Ann. §§ 72-5437, 5439; see Gillett v. U.S.D. No. 276 , 605 P.2d 105, 110 (Kan. 1980). A nontenured teacher, o n the other hand, is entitled only to timely notice of nonrenewal. So long as a district provides a nontenured teacher with timely notice, it may dismiss the teac her with or without good cause and without a hearing. Kan. Stat. Ann. § 72-5445(a ).-8-

Tenured teachers entitled to procedural safeguards prior to termination are: (1) Teachers who have completed not less than three consecutive years of employment, and have been offered a fourth contract, in the school district, area vocational-technical school o r community college by which any such teacher is currently empl oyed; and (2) teachers who have completed not less than two conse cutive years of employment, and been offered a third contract, in t he school district ... by which any such teacher is currently employed if at any time prior to the current employment the teacher has completed the years of employment requirement of provision (1) in any s chool district, area vocational-technical school or community colle ge in this state. Id

. Mr. Munguia asserts neither a written contract of e mployment nor full-time employment is necessary to satisfy the tenure provi sions of Kan. Stat. Ann. § 72- 5445(a). He contends it was enough that the Lorrai ne District represented him as certificated personnel and evaluated his teaching p erformances and skills for eight consecutive years, from 1986 through the 1993-94 sc hool year. In the alternative, Mr. Munguia asserts he had an implied contract of e mployment with the Lorraine District during that same eight-year period. We ad dress these arguments, mindful of our obligation to discern and apply Kansas law i n the same manner as would the Kansas' courts.

We begin by acknowledging that under Kansas law, sc hool districts exist only as creatures of the legislature to operate as political subdivisions of the-9-

State. Wichita Pub. Sch. Employees Union v. Smith , 397 P.2d 357, 359 (Kan. 1964). Accordingly, school districts have only suc h power and authority to contract for employment as the state legislature expressly grants or which is conferred by necessary implication. Id .; Gragg v. Unified Sch. Dist. No. 287 , 627 P.2d 335, 338-39 (Kan. App. 1981). As shown above, the Kansas legislature has determined a teacher becomes tenured only upon the satisfaction of three unambiguous statutory conditions: (1) "employment" , (2) in "the school district", (3) for a given number of "consecutive" years. Ka n. Stat. Ann. § 72-5445. The Kansas legislature further determined the position of teacher in the Kansas public school system would be created by contract, the ter ms of which are binding on both the teacher and the board of education of cont racting school district. See Kan. Stat. Ann. § 72-5412. These provisions delimi ting a school district's authority to employ and grant tenure to teachers ar e plain and unambiguous. Moreover, all persons contracting with a school dis trict are deemed to have knowledge of the limitations ( i.e. , that any contract created in contravention of the teacher contracting statutes is ultra vires and void). Gragg , 627 P.2d at 338-
39.

While we agree with Mr. Munguia the statutes pertai ning to teacher contracts and tenure do not expressly require a wri tten contract and have been-10-

interpreted to apply to part-time as well as full-t ime teachers, nowhere do those statutes indicate the Kansas legislature contemplat ed anything other than an express employment relationship between school district and teacher -- a relationship defined by identifiable terms and cond itions that are legally binding on both parties. See Kan. Stat. Ann. §§ 72-5410 through 72-5455 (1992 & Supp. 1996). Thus, consistent with the Kansas district c ourt, we do not read the statutes as permitting a school district to create an employ ment relationship simply by virtue of its evaluation of a teacher's performance

. Burk v. Unified Sch. Dist. No.
329 , 646 F. Supp. 1557, 1564-65 (D. Kan. 1986). Nor d o we believe a school district has authority to "employ" a teacher for te nure purposes simply by representing a teacher as "certificated district pe rsonnel." As Mr. Munguia does not otherwise assert that performance evaluations and personnel classifications are necessary extensions of a school district's lim ited contracting authority, we hold any attempt to contract with a teacher by thes e means alone would be ultra vires and void. Mr. Munguia's argument he became t enured by virtue of an implied contract with the Lorraine District is ther efore without merit.

We turn, then, to the question of whether Mr. Mungu ia has presented any evidence to demonstrate he had an express or defini te "employment" relationship with the Lorraine School District. Mr. Munguia doe s not dispute he executed-11-

express, written contracts with the Ellsworth and C hase Districts for the school years 1983 through 1993. He also does not dispute he had no such contract with the Lorraine District until the 1993-94 school year . The parties further agree that from 1983 through 1993, the Ellsworth and Chase Dis tricts paid Mr. Munguia's salary and contributed to the Kansas Public Employe es Retirement System on his behalf. Mr. Munguia himself stated he chose to sig n a contract with the Chase District rather than the Lorraine District because the Chase District had better health insurance benefits. Moreover, Mr. Munguia w as aware he could not have received retirement benefits during the 1993-94 sch ool year if he returned to the Chase district or any district which had employed h im anytime during the prior two years. Viewing this uncontroverted evidence inMr. Munguia's favor, as we must, we find no support for his claim he was "empl oyed" by the Lorraine District prior to the 1993-94 school year, as that term is u sed in Kan. Stat. Ann. § 72-
5445.

Finally, we note the plain language of both the con tinuing contract provisions and the due process provisions speak ent irely in terms of "the" contracting school district, thus indicating the st ate legislature contemplated a teacher would be "employed" by a single school district at any given time. See id. at §§ 72-5412, 72-5445. That the term "employment" contemplates the existence1 The statutes do, however, permit school districts to enter into

supplemental contracts with their employees to prov ide such extra-curricular services as coaching. Kans. Stat. Ann. § 72-5412a (1992).

2To the contrary, based on language in the inter-d istrict agreements, Mr. Munguia avers he was "jointly and simultaneously employed" by two districts at one time.

-12- of a single, primary contract 1 with a single school district is further supportedby the statutory provision which prohibits a teacher f rom entering into a contract with any board of education for any period of time covered in a contract with another school district, unless a board of educatio n has released that teacher from his original contract or has legally discharged a t eacher from his teaching position. Id . at § 72-5412. Mr. Munguia has proffered no evide nce to suggest the three school districts are anything but separat e legal entities with independent contracting authority, and no evidence he had been discharged or released from his express written contract with the Chase Distric t prior to his notice of resignation in March 1993. 2 Accordingly, by statute, Mr. Munguia was without authority to contract for employment with the Lorra ine District prior to the 1993- 94 school year.

For all these reasons, we conclude Mr. Munguia did not possess a protected property interest in continued employment with the Lorraine District. We-13-

therefore AFFIRM the district court's order granting the defendants ' summary judgment motion.

Entered for the Court

WADE BRORBY United States Circuit Judge