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

### OCT 6 2000 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BETTY McCLURE, Plaintiff-Appellee/Cross-Appellant,

v. INDEPENDENT SCHOOL DISTRICT NO. 16, MAYES COUNTY, OKLAHOMA, also known as Salina Public School District, Defendant-Appellant/Cross-Appellee, MARION STINSON and DENNIS WESTON, Defendants-Cross-Appellees. LARRY MILLS, JOE BROWN, and BILLY RICE, Defendants. Nos. 99-5029 99-5031

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 97-CV-825-B)

Mark S. Rains (Jerry A. Richardson with him on the briefs) of Rosenstein, Fist & Ringold, Tulsa, Oklahoma, for Defendant-Appellant / Cross-Appellee and Defendants-Cross-Appellees. Phyllis L. Walta of Walta & Walta, Enid, Oklahoma, for Plaintiff-Appellee/Cross-* The Honorable Arthur L. Alarcón, Circuit Judge, Un ited States Court of

Appeals for the Ninth Circuit, sitting by designati on. -2- Appellant.

Before SEYMOUR , Chief Judge, ALARCÓN , * and BALDOCK , Circuit Judges.

SEYMOUR , Chief Judge.

Betty McClure brought this action under 42 U.S.C. § 1983 against Independent School District No. 16 (the District), also known as the Salina Public Schools, and the five members of the Salina Board o f Education (the Board). Mrs. McClure alleged that the termination of her employment as an elementary school principal with the District deprived her of her constitutional right to procedural due process. The district court granted summary judgment for Mrs. McClure in part but held that the individual board members were entitled to qualified immunity. Both sides appeal. We affirm in part, reverse in part, and remand for further proceedings.

I

A review of the record reveals the following facts, many of which are1 A psychometrist performs educational diagnostics u sed in special

education programs to evaluate a child’s special ne eds and to develop a plan of improvements.

2 The Impact Aid Act provides funds to school distri cts that are financially burdened by federal ownership of property within th e district that reduces the district’s tax base and/or increases the student po pulation. See generally Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States , 48 F.3d 1166, 1167-68 (Fed. Cir. 1995). -3- undisputed. Mrs. McClure has a college degree in e lementary education and a Master’s degree in special education, as well as po st-Master’s degrees in psychometry 1 and school administration. After working for twenty years in other school districts, she worked for six years as an el ementary school principal in the Salina school system. During her sixth year, the 1 995-96 school year, she was evaluated by the then-superintendent of schools, To m Merritt, and given an “excellent” rating. Her contract was renewed for t he 1996-97 school year in February 1996 by a unanimous vote of the Board. Her troubles apparently began as a result of her ac tivities on behalf of the District to obtain additional monies for the school system under the Impact Aid
Act. 2 Due to the efforts of Mrs. McClure and another in dividual, the District received well over one million dollars in Impact Ai d funds. Superintendent Merritt, who had authorized the applications for ad ditional funds, asked the Board to reward Mrs. McClure and the other individual fortheir efforts with payments of one percent each of the monies received. The Bo ard unanimously approved the3 The record contains handwritten notes kept by the administrative secretary

for the District, Carmen Sanders, that chronicle th e events leading up to this lawsuit. These notes state that “people” resented the payments. See Aplt. App., vol. I at 261. The notes and other record evidence indicate that the conduct of many of the participants in the underlying events w as of the sort one would expect from the students attending the schools rath er than the adults administering them. -4- payments in July 1995. During the course of the 19 95-96 school year, Mrs. McClure received approximately $10,000 to $12,000 f rom the funds received by the District that school year. The Board subsequently began to question the payments because the amounts were higher than anticipated. 3 They voted to disprove any payments for monies received in the 1996-97 school year. Superi ntendent Merritt resigned in May 1996. The Board held an executive session rega rding the Impact Aid applications in June of that year and then tabled a ny action to investigate the matter further. A new superintendent, Vol Woods, was hired to repla ce Mr. Merritt in early July 1996. On July 29, Mr. Woods gave Mrs. McClure written notice that cause might exist for her dismissal and suspended her with pay. On August 7, the Board directed Mr. Woods to give Mrs. McClure writt en notice of the reasons for her possible dismissal and to notify her of her rig ht to request a hearing. On August 9, Mr. Woods sent the notification outlining the following reasons for Mrs. McClure’s possible dismissal:4 The district court observed that allegations 1, 2, 5, 6, 10 and 12 were

supported by the testimony of live witnesses at Ms. McClure’s due process hearing or by other evidence, and that Ms. McClure had admitted to allegation -5- 1. School employees have smelled liquor on your bre ath during school hours. 2. You have violated the School District’s no smoki ng policy by smoking on school grounds during regular school hours. 3. You have allowed and accompanied teachers off of the school grounds during regular school hours, when those teachers sh ould have been attending to duties during their planning periods, for you and the teachers to smoke. 4. You have often left school grounds without permi ssion. 5. The majority of teachers at the elementary schoo l have lost confidence in your administrative leadership. 6. You are frequently gone from the school and are unavailable for assistance to your teachers in your building. 7. You manage employees in your building by intimid ation and fear. 8. You have used vulgar language to your employees in front of other employees. 9. You have personally brought liquor onto the scho ol premises. 10. You belittle and humiliate subordinate employee s. 11. You have improperly reviewed personnel files of School District employees. 12. The Board of Education lacks confidence in yourabilities as an administrator. Aplt. App., vol. I at 133-34. 49. As Mrs. McClure points out on appeal, however, the Board did not find

allegation 9 established by credible evidence. Thi s allegation apparently was based on an incident years prior to the hearing in which Mrs. McClure brought a margarita to school locked in the trunk of her car and gave it directly to another teacher after school hours, who placed it in her ca r trunk. -6- Mrs. McClure requested a due process hearing, whichwas held on August 29, 1996. She was present and represented by couns el, who objected to the participation of all five Board members due to bias and particularly to the participation of Marion Stinson and Dennis Weston o n the ground that they had previously expressed a bias against Mrs. McClure. The attorney for the District, Doug Mann, while stating his view that the Board ha d the right to serve as fact finder, responded that members who were biased or w ho could not decide solely on the evidence should disqualify themselves. No o ne did. Mr. Mann sought to introduce affidavits from thirte en District employees making various accusations against Mrs. McClure. M rs. McClure’s attorney then moved to have the affidavits barred on the ground t hat their admission denied her the right to cross-examination. Mr. Mann respondedthat the affiants had refused to appear in person and, because the Board had no s ubpoena power, he could not force them to provide live testimony. Approximatel y half of the affiants were in fact present at the hearing but did not testify. T he affidavits in general made broad, conclusory allegations stating that the affi ants had smelled liquor on Mrs. McClure’s breath at school on unspecified occasions , that she smoked cigarettes-7-

in her office after 3:00 p.m. on school days and oc casionally left school grounds with other teachers to smoke elsewhere, that she us ed vulgar language in front of school staff, and that her management style was one of fear and intimidation. The Board presented three live witnesses, Cathy Ben nett, Janet Morgan, and Judy Buster. Ms. Bennett was a teacher who was supervised by Mrs. McClure and whom Mrs. McClure had put on a plan of improvement in March 1996. She testified on direct examination that she had smelled liquor on Mrs. McClure’s breath, that she had seen Mrs. McClure sm oking during the school day in her office several times, and that Mrs. McClure was difficult to contact about school problems. On cross-examination Ms. Bennett became upset, left the stand, and refused to answer any more questions. Janet Mo rgan also gave live testimony. She is Cathy Bennett’s daughter and adm itted that she was angry with Mrs. McClure for putting her mother on a plan of improvement. The third live witness, Judy Buster, was an elementary teacher who testified that she smelled liquor on Mrs. McClure’s breath back in 1994-95, ha d seen her smoking in her office, and had heard her use vulgar language. She also stated that Mrs. McClure was intimidating and often away from the building. Mrs. McClure presented testimony from several witnesses, all of whom were cross-examined. The Board went into executive session and returned to vote unanimously to dismiss Mrs. McClure immediately. She subsequentlyapplied for employment in-8-

public school systems within an eighty mile radius of Salina, sending out fifty to seventy resumes. After these attempts were unsucce ssful, Mrs. McClure took early retirement and filed this lawsuit. The district court granted summary judgment for Mrs . McClure on her claim that the due process hearing was rendered con stitutionally inadequate by her inability to confront and cross-examine the witness es against her, and awarded her both nominal and actual damages. The court also de termined that Mrs. McClure had presented a fact issue on her allegation that s he was denied the right to an impartial tribunal because two of the five Board me mbers at her hearing were biased against her, but then held this claim mooted by the holding in her favor on the confrontation issue. Finally, the court held t hat the individual Board members were entitled to qualified immunity and that Mrs. M cClure had presented no evidence to support an award of punitive damages ag ainst them in any event. The District argues on appeal that the district cou rt erred in holding as a matter of law that a due process deprivation occurr ed when the District presented affidavits at Mrs. McClure’s termination hearing fr om affiants whom Mrs. McClure was not allowed to cross examine. The District also asserts that the court erred in awarding Mrs. McClure more than nomi nal damages on her due process claim despite evidence that she would have been terminated even if no due process violation had occurred. Mrs. McClure c ross-appeals, contending that-9-

the court erred in granting the two individual Boar d members qualified immunity on her claim of bias and that she presented suffici ent evidence to support an award of punitive damages against them. In additio n, Mrs. McClure objects to the damages awarded, asserting that the court erred in giving her only nominal damages for her mental pain and suffering and in ca lculating her compensatory damages.

II

We review de novo the district court’s grant of a m otion for summary judgment, see Ben Ezra, Weinstein & Co., Inc. v. America Online, Inc. , 206 F.3d 980, 984 (10th Cir. 2000), and its determination th at an issue is moot, see Anderson v. United States Dep’t of Health and Human Servs. , 3 F.3d 1383, 1384 (10th Cir. 1993). We address each argument of the parties in turn.

A. Use of Affidavits Defendants do not challenge on appeal the district court’s determination that Mrs. McClure had a property interest in her jo b. They contend instead that the use of affidavits did not deprive her of due pr ocess. We disagree. The District presented live testimony from three wi tnesses and offered into5 The District contends that cases discussing the de privation of one’s

livelihood are distinguishable because Mrs. McClure was only deprived of one specific job. We disagree. Our cases use the term “livelihood” in the context of employment termination identical in all relevant re spects to that at issue here. See, e.g., West v. Grand County , 967 F.2d 362, 369 (10th Cir. 1992); Melton v. City of Okla. City , 879 F.2d 706, 721 (10th Cir. 1989); McGhee v. Draper , 564 F.2d 902, 911-12 (10th Cir. 1977). -10- evidence thirteen affidavits from witnesses who hadrefused to provide live testimony and be subject to cross-examination. Although the hearing at issue was a pretermination hearing, it was the only one provi ded to Mrs. McClure. Consequently, our due process inquiry is governed b y the requirements applied to post-termination hearings. The District does not argue to the contrary. This court has indicated in dicta that “[a] ‘full p ost-termination hearing’ is understood to include the right to representation b y an attorney and the right to cross-examine adverse witnesses.” Workman v. Jordan , 32 F.3d 475, 480 (10th Cir. 1994) (quoting Melton v. City of Oklahoma City , 928 F.2d 920, 939 (10th Cir. 1991) (en banc) (Logan, J., dissenting)); see also Langley v. Adams County , 987 F.2d 1473, 1480 (10th Cir. 1993) (same). We have stated elsewhere that “[w]hile not necessary in every case, procedural du e process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood.” West v. Grand County , 967 F.2d 362, 369 (10th Cir. 1992) (quoting Walker v. United States , 744 F.2d 67, 70 (10th Cir. 1984)). 5 Westobserves that “whether the Due Process Clause requires that the t erminated employee be offered-11-

the right to cross-examine or confront witnesses de pends upon the significance and nature of the factual disputes at issue.” Id. See also Prebble v. Brodrick, 535 F.2d 605, 616 (10th Cir. 1976) (where information f rom persons not present at hearing concerns an important issue in dispute, due process objection may well be valid). We have also held that charges depriving a plaintif f of her livelihood by attacking her morality and fitness as a teacher are sufficiently serious to require cross-examination. See McGhee v. Draper , 564 F.2d 902, 911 (10th Cir. 1977). There we concluded that because the termination dec ision was based on accusations that “might stain a reputation and thre aten a livelihood,” “confrontation and cross-examination were essential s of due process which should not have been denied.” Id. at 911-12. In this case, as in McGhee , the termination decision was based on charges that would stain the reputation of an elementary school principal and threaten her livelihood. As t he district court pointed out, “I think we’ve got some morality questions here where we’re talking about either drinking on the job or coming to school in an inebr iated condition . . . which I understand the plaintiff categorically denies.” Ap lt. App., vol. II at 425. We agree with the district court that these accusation s, which the Board ostensibly considered sufficiently serious to warrant dismissa l, were likewise sufficiently serious to warrant cross-examination.-12-

Although the District argues that the district court’s conclusion is contrary to controlling decisions of this court, the cases o n which the District relies are factually distinguishable. In West , for example, we recognized “the importance of cross-examination in due process analysis” and cite d cases in which termination proceedings were held inadequate because the opportunity to confront and crossexamine was denied, although we acknowledged that t hose rights were not “universally applicable to all hearings.” West , 967 F.2d at 369. We did not address whether the plaintiff should have been offe red the right to cross-examine, however, because the plaintiff had waived her rightto complain when she did not seek the attendance of the missing witness at the h earing and was not restricted from doing so. See id. In Meder v. City of Okla. City , 869 F.2d 553, 555 (10th Cir. 1989), abrogated on other grounds by American Mfrs. Mut. I ns. Co. v. Sullivan , 526 U.S. 40 (1999), we concluded that the lack of cross-examination did not result in a denial of due process because the p laintiff had admitted facts that made cross-examination unnecessary. Finally, while we concluded in Rosewitz v. Latting , 689 F.2d 175 (10th Cir. 1982), abrogated on other grounds by American Mfrs. , 526 U.S. 40, that denial of the right to cross-ex amination in the grievance procedure at issue did not deprive the plaintiff of procedural due process, we did not address the nature of the accusations against t he plaintiff, or give them any6 Unlike the present case, the defendant in Rosewitz provided its employees

with a five-step grievance procedure that offered s everal opportunities to present a defense, to have a hearing before a grievance rev iew board, and internal review of the board’s decision through a personal intervie w. See Rosewitz , 689 F.2d at 176 & n.1. We pointed out that as a result, the ri sk of an erroneous deprivation was not great. See id. at 177. -13- weight in balancing the interests involved. 6 These cases are therefore of little relevance to the facts before us now. The District also asserts the district court erred by applying what the District describes as a “bright line” rule under wh ich any use of an affidavit in an administrative due process hearing is a per se deni al of procedural due process. This characterization fails to take the relevant re cord into account. The court commented upon its holding at a proceeding shortly thereafter, reviewing the uncontroverted evidence and reiterating its conclus ion that “where issues of morality and/or professional ethics were involved a s here in the allegations, . . . procedural due process under the Fourteenth Amendme nt compelled the right of cross-examination.” Aplt. App., vol. II at 454. T he court thus made clear that its ruling was based on the particular facts before it rather than on application of a bright line rule. In any event, the uncontroverted evidence of the seriousness of the charges and the risk of error, particularly und er the circumstances existing at the hearing itself, support the court’s conclusion that due process required crossexamination here.-14- B. Procedural Due Process Damages The district court held a bench trial on the issue of damages for the due process violation and awarded Mrs. McClure lost wag es and benefits for the 1996-97 school year. In so doing, the court statedthat while admissible evidence independent of the thirteen affidavits supported Mr s. McClure’s termination, it was “speculative whether or not Plaintiff would hav e been terminated had that cross-examination been permitted.” Aplt. App., vol . I at 399. The court denied the District’s request to put on evidence through s chool board members that the board would have reached the same decision even wit hout the thirteen affidavits. The court stated its belief that because Mrs. McClu re had been denied the opportunity to develop her defense through cross-ex amination, there was no way of knowing what the outcome would have been and the evidence was therefore irrelevant. We review the district court’s legal c onclusions de novo and its findings of fact for clear error. See Naimie v. Cytozyme Lab., Inc. , 174 F.3d 1104, 1109 (10th Cir. 1999). On appeal the District argues the court erred in aw arding compensatory relief absent a showing by Mrs. McClure that her damages were caused by the due process violation, citing Carey v. Piphus , 435 U.S. 247 (1978). The District also asserts the court erred in refusing to admit the te stimony from board members that they would have decided to terminate Mrs. McClure i n any event. Finally the-15-

District contends that because there was evidence t ending to show it would have terminated Mrs. McClure following a proper hearing, the matter should be remanded for an award of nominal damages only. Our consideration of these arguments is guided by Carey and its progeny.
In Carey , the Supreme Court held that when a procedural due process violation occurs and adverse action results, damages for inju ries caused by the adverse action may not be recovered if the defendant can pr ove the action would have been taken even absent the violation. See id. at 260 (“in such a case, the failure to accord procedural due process could not properlybe viewed as the cause of the [adverse action]”). The Court cited Mt. Healthy City Sch. Dist. v. Doyle , 429 U.S. 274, 285-87 (1977), and Village of Arlington Heights v. Metropolitan Hous. Dev. Corp. , 429 U.S. 252, 270-71 & n.21 (1977), in support of this proposition. Mt. Healthyand Village of Arlington Heights make clear that once a plaintiff establishes a constitutional violation, the burden shifts to the defendant to show by a preponderance of the evidence that it would have reached the same result absent the violation. See Mt. Healthy , 429 U.S. at 285-87 (once plaintiff shows infringement of constitutional right, defendant mus t “show[] by a preponderance of the evidence that it would have reached the same decision . . . even in the absence of the [constitutional violation]”); Village of Arlington Heights , 429 U.S. at 271 n.21 (proof of constitutional violation shif ts to defendant the “burden of-16-

establishing that the same decision would have resu lted even had [the constitutional violation not occurred]”). Accordin gly, the District is incorrect in arguing that Mrs. McClure bears the burden of provi ng that her damages resulted from the District’s unconstitutional conduct. To t he contrary, to avoid liability for the damages resulting from its denial of Mrs. M cClure’s constitutional right to due process, the District must establish, by a pre ponderance of the evidence, that it would have reached the same termination decision in any event. Unless the defendant carries that burden, the plaintiff is ent itled to recover damages for the injury caused by the defendant’s adverse action. See Carey, 435 U.S. at 259 (“Procedural due process rules are meant to protectpersons not from the deprivation, but from the mistaken or unjustified d eprivation of life, liberty, or property.”); see also, e.g., Dill v. City of Edmond, 155 F.3d 1193, 1209 (10th Cir. 1998) (plaintiff entitled to compensatory damages f or adverse action when defendant failed to establish adverse action would have occurred even if due process had been provided). We agree with the District, however, that the distr ict court erred in refusing to consider the District’s evidence that the school board would have made the same decision even in the absence of the constituti onal violation. Because the Supreme Court has held it is the defendant’s burdento make this showing in order to avoid liability for compensatory damages, the Di strict is entitled to present-17-

evidence relevant to satisfying that burden. In Careythe plaintiffs adopted the same position taken by the district court here and argued that injury should be presumed because it could never be known what resul t the constitutionally correct proceeding would have produced. See Carey , 435 U.S. at 261 n.16. The Court rejected this argument and we must do so as well. We remand the issue of damages for the denial of Mrs. McClure’s procedural due process rights in order to provide the District the opportunity to establis h by a preponderance of the evidence that it would have reached the same decisi on had the constitutional violation not occurred. In her cross-appeal, Mrs. McClure contends the district court erred in failing to award her damages for emotional distress . The court’s refusal to do so was based on its finding that these damages were caused by her termination rather than by the deprivation of her right to confront an d cross-examine the witnesses against her at the termination hearing. In a prope r case, however, a plaintiff may recover such damages by “producing evidence that me ntal and emotional distress actually was caused by the denial of procedural due process itself.” Id . at 263. Upon review of the record, we agree with the distri ct court that Mrs. McClure has not shown her mental damages were caused by the due process deprivation rather than her termination. Mrs. McClure may nonetheless be entitled to emotion al distress damages if,-18-

on remand, the District fails to show by a preponde rance of the evidence that it would have terminated her employment even absent th e violation of her confrontational rights. See Dill , 155 F.3d at 1209. In that event, as discussed above, Mrs. McClure will be entitled to all the compensatory damages flowing from her termination because her termination will h ave directly resulted from the denial of due process. Mrs. McClure also argues that the district court erred in limiting her compensatory damages to the 1996-97 school year on the ground that she had failed to mitigate her damages. “Unquestionably, w rongfully discharged claimants have an obligation to use reasonable effo rts to mitigate their damages.”
EEOC v. Sandia Corp. , 639 F.2d 600, 627 (10th Cir. 1980). “A claimant is required to make only reasonable exertions to mitig ate damages, [however,] and is not held to the highest standards of diligence. Itdoes not compel him to be successful in mitigation. It requires only an hone st good faith effort.” Id. (citations omitted). The employer bears the burden of showing that the e mployee did not exercise reasonable efforts to mitigate damages. See id. To satisfy its burden, “the [employer] must establish (1) that the damage suffered by plaintiff could have been avoided, i.e. that there were suitable po sitions available which plaintiff could have discovered and for which he was qualifie d; and (2) that plaintiff failed7 Her husband was employed as a school superintendentin a neighboring

district and she therefore sought a position withindriving range. -19- to use reasonable care and diligence in seeking suc h a position.” Id. Our review of the record convinces us that the district court erred under the above standards in finding that Mrs. McClure had not mitigated her damages. Mrs. McClure presented undisputed evidence that she sent out fifty to seventy applications seeking employment with every school district in a sixty to ninety mile radius. 7She was never called for an interview and receive d no feedback. The only response she did receive was a verbal one from an administrator who said he could not take a chance o n her with the kind of cloud she had hanging over her head. Although the distri ct court faulted Mrs. McClure for failing to specifically seek a teaching positio n in special education when special education teachers were in high demand, herresume clearly indicated her qualifications in that area. Moreover, Superintend ent Woods testified on behalf of the District that he did not want to rehire Mrs. McClure and equivocated when asked whether he would hire a special education tea cher subject to the accusations he had made against her. In sum, the District has not established that positions were available to Mrs. McClure in her circumstances , nor has the District shown that she did not use reasonable diligence in her ef forts to find work. Accordingly, we hold the district court erred in determining that she failed to mitigate her-20-

damages.

C. Biased Tribunal The district court held that Mrs. McClure had creat ed a fact issue as to whether two members of the school board, Mr. Stinso n and Mr. Weston, were impermissibly biased against her, thus denying her the procedural due process right to an impartial tribunal. The District does not challenge this ruling on appeal. The district court further held this claim was mooted by the grant of summary judgment for Mrs. McClure on her allegationthat she was denied her right to confront and cross-examine the witnesses a gainst her. In light of our treatment of the confrontation issu e, we conclude the biasedtribunal claim is no longer moot. We held in Part II B above that, while the court properly granted summary judgment for Mrs. McClure on her confrontation claim, the court erred with respect to that claim in denyi ng the District an opportunity to establish it would have reached the same result abs ent the deprivation of Mrs. McClure’s confrontational rights. If the District is successful on remand in bearing this burden and avoiding liability for comp ensatory damages on this claim, Mrs. McClure may persuade the fact finder th at she was denied her right to an unbiased tribunal and is therefore entitled to c ompensatory damages on the latter claim. We therefore remand for further proc eedings on both claims.-21- D. Qualified Immunity We turn to the district court’s grant of qualified immunity to the individual defendants. “‘[G]overnment officials performing di scretionary functions, generally are shielded from liability for civil dam ages insofar as their conduct does not violate clearly established statutory or c onstitutional rights of which a reasonable person would have known.’” Hicks v. City of Watonga , 942 F.2d 737, 749 (10th Cir. 1991) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The district court summarily granted Board members Stinson and Weston qualified immunity on Mrs. McClure’s claim that the ir participation in the termination decision deprived her of the right to a n impartial tribunal. In support of that claim, Mrs. McClure presented evidence thatthose defendants had expressed their determination to remove her from he r position prior to the termination hearing. The record contains an affidavit by Tom Merritt, the District Superintendent who resigned in May 1996, stating th at Board member Stinson told Mr. Merritt in the spring of 1996 that he want ed Mrs. McClure gone and that he had enough proof to “fire her on the spot.” Apl t. App., vol. I at 243. The affidavit also states that Board member Weston said in the spring of 1996 in Mr. Merritt’s presence that he wanted Mrs. McClure gone and would pay a large amount of money to “get rid of her.” Id. at 244. Mrs. McClure argues on appeal that the court erred in granting summary judgment o n the qualified immunity-22-

issue. We agree. It is clear that at the time the hearing took place in 1996, procedural due process required an impartial tribunal:

The Due Process Clause entitles a person to an impartial and disinterested tribunal . . . . This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustifi ed or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process. The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. At the same time, it preserves b oth the appearance and reality of fairness, generating the feeling, so important to a popular government, that justice has been done, by ensuring that no person will be deprived of his interests in the abs ence of a proceeding in which he may present his case with as surance that the arbiter is not predisposed to find against him. Marshall v. Jerrico, Inc. , 446 U.S. 238, 242 (1980) (citations and internal quotations omitted). It was equally clearly established in 1996 that statements such as those allegedly made by the individual defendants here ar e evidence of a biased tribunal. In Staton v. Mayes , 552 F.2d 908 (10th Cir. 1977), we held that “statements on the merits by those who must make fa ctual determinations on contested fact issues of alleged incompetence and w illful neglect of duty, where the fact finding is critical . . . left no room fora determination that there was a decision by a fair tribunal, with the appearance of fairness.” Id. at 914-15. We further addressed the elements of an unbiased tribu nal in Hicks and reiterated our-23-

holding that public statements by a decisionmaker p rior to a termination hearing that demonstrate actual bias with respect to the fa ctual matters to be adjudicated, raise a genuine issue of fact on a claim that a pla intiff was deprived of the right to an impartial tribunal. 942 F.2d at 746-48. Although the District concedes on appeal that Ms. M cClure raised a fact issue on the biased tribunal claim, the District an d the individual defendants argue that qualified immunity was properly granted becaus e the statements upon which that claim is based are not sufficient to show the bias required to state a claim for relief. Defendants’ argument is both inconsistent with their concession and legally incorrect. As we pointed out in Staton , statements like those alleged here are not mere opinions on policy issues related to t he dispute, nor are they simply reiterations of charges made during an investigatory stage. See Staton , 552 F.2d at 914. Rather, they reveal decisionmakers who pub licly stated their intent to terminate Mrs. McClure’s employment prior to the he aring at which the matter of her termination was to be decided. “[A] due proces s principle is bent too far when such persons are then called on to sit as factfinders and to make a decision affecting the property interests and liberty intere sts of one’s reputation and standing in his profession.” Id . at 915. Accordingly, we conclude that the statements attributed to Board members Stinson and Weston raise a genuine issue of material fact as to whether they were biased whe n they sat on the tribunal8 We note that the presence of even one biased membe r on a tribunal is

sufficient to deprive a plaintiff of procedural due process. “Litigants are entitled to an impartial tribunal whether it consists of one man or twenty and there is no way which we know of whereby the influence of one upon the others can be quantitatively measured.” Hicks , 942 F.2d at 748 (quoting Cinderella Career & Finishing Sch., Inc. v. F.T.C. , 425 F.2d 583, 592 (D.C. Cir. 1970)).

9 Alternatively, the district court summarily held t hat even if the claims against Board members Stinson and Weston were to go to a fact finder, the record contained no evidence that they acted with malice i n voting to terminate Mrs. McClure and she therefore could not obtain punitive damages from them. In view of the summary treatment of the issue by the distri ct court below, the parties’ failure on appeal to address the evidence with resp ect to punitive damages, and our conclusion that the matter must be remanded forfurther proceedings on Mrs. McClure’s claims against both the District and the individual defendants, any ruling on the matter at this stage of the litigatio n would be premature. We therefore leave the issue of punitive damages open for further proceedings on remand. -24- which voted to terminate Mrs. McClure’s employment. 8 As noted above, “[t]he law is clearly established that a person who is bia sed in fact may not sit on a quasi-judicial tribunal.” Hicks , 942 F.2d at 751. We therefore reverse the grant of summary judgment on the claim of qualified immun ity. 9

III

In sum, we affirm the district court’s ruling that Mrs. McClure was deprived of her constitutional right to confront an d cross-examine the witnesses against her by the use of affidavits at her termination hearing. We remand for further proceedings on this claim to allow the Dist rict the opportunity to establish-25-

by a preponderance of the evidence that it would have terminated Mrs. McClure after a constitutionally proper hearing. If the Di strict is successful, Mrs. McClure will not be entitled to damages flowing from the te rmination itself. If the District does not satisfy its burden, it will be liable for compensatory damages resulting from its decision to terminate Mrs. McClure, includ ing those resulting from her emotional distress. We reverse the district court’ s ruling that Mrs. McClure failed to mitigate her damages. We conclude that the issue of a biased tribunal is no longer moot and we remand for further proceedings on this claim as wel l. We also hold that Mrs. McClure raised a genuine issue of material fact on her claim that she was denied her due process right to an impartial tribunal by t he participation of Board members Stinson and Weston in the decision to termi nate her employment. We therefore reverse the grant of qualified immunity t o the individual defendants on this claim.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.