Robert Roybal v. Toppenish School District, et al

Filing

FILED OPINION (MICHAEL DALY HAWKINS, M. MARGARET MCKEOWN and BARBARA JACOBS ROTHSTEIN) REVERSED IN PART, DISMISSED IN PART. Each party to bear its own costs on appeal. Judge: MDH Authoring, FILED AND ENTERED JUDGMENT. [10587041]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERT ROYBAL,
Plaintiff-Appellee,
v.

No. 15-35541
D.C. No.
1:14-cv-03092-SMJ

TOPPENISH SCHOOL DISTRICT;
JOHN CERNA, Superintendent,
Defendants-Appellants.

OPINION

Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Argued and Submitted August 28, 2017
Seattle, Washington
Filed September 20, 2017
Before: Michael Daly Hawkins and M. Margaret
McKeown, Circuit Judges, and Barbara Jacobs Rothstein,*
District Judge.
Opinion by Judge Hawkins

*

The Honorable Barbara Jacobs Rothstein, United States District
Judge for the Western District of Washington, sitting by designation.

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ROYBAL V. TOPPENISH SCH. DIST.
SUMMARY**

Civil Rights
On interlocutory appeal in a 42 U.S.C. § 1983 action, the
panel reversed the district court’s order denying qualified
immunity to defendants on plaintiff’s due process claim, and
dismissed, for lack of jurisdiction, the district court’s order
denying qualified immunity to defendants on plaintiff’s First
Amendment claim.
Plaintiff, a former school principal, alleged that the
Toppenish School District reduced his salary without due
process and retaliated against him for speaking to an attorney
about his performance evaluation.
The panel held plaintiff had a protected property interest
under Washington State law in the salary he received as a
principal. The panel held, however, that the School District
was not required under federal law to provide plaintiff with
a predeprivation probable cause hearing pursuant to
Washington Revised Code § 28.405.300. The panel noted
that federal due process does not necessarily entitle a plaintiff
to the same procedures provided by state law. In this case,
the state-created protections reached beyond those guaranteed
by federal law. The panel held that pursuant to Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532 (1985), plaintiff
received all the process due to him when he twice received
notice that the District was reassigning him and was provided
with opportunities to be heard in his own defense.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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The panel held that it lacked jurisdiction over the district
court’s order denying qualified immunity as to the First
Amendment claim because the district court had found
genuine issues of material fact existed regarding the claim.
The panel held, therefore, that the issue of whether the School
District violated plaintiff’s First Amendment rights was
categorically unreviewable on interlocutory appeal.
Moreover, the panel determined that the First Amendment
retaliation claim was not “inextricably intertwined” with the
due process claim such that the panel could exercise pendent
jurisdiction to review it.

COUNSEL
Jerry J. Moberg (argued) and James E. Baker, Jerry Moberg
& Associates P.S., Ephrata, Washington, for DefendantsAppellants.
Kevan Tino Montoya (argued) and Tyler M. Hinkley,
Montoya Hinckley PLLC, Yakima, Washington, for PlaintiffAppellee.

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ROYBAL V. TOPPENISH SCH. DIST.
OPINION

HAWKINS, Circuit Judge:
In this interlocutory appeal, the Toppenish School District
(“the District”) and its Superintendent, John Cerna (“Cerna”)
(collectively, “Toppenish”), appeal the denial of qualified
immunity and adverse summary judgment grant in Robert
Roybal’s (“Roybal”) 42 U.S.C. § 1983 action. Roybal, a
former principal in the District, claims the District reduced
his salary without due process and retaliated against him for
speaking to an attorney about his performance evaluation.
The district court denied Cerna qualified immunity,
determining Toppenish violated due process and that genuine
issues of material fact existed whether Toppenish retaliated
against Roybal for his speech. We conclude the district court
erred in holding Toppenish violated due process by failing to
comply with procedures required under state law. We further
conclude we lack jurisdiction at this stage to review the denial
of qualified immunity as to Roybal’s First Amendment
retaliation claim.
FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
A. Factual Background
The District employed Roybal as a principal beginning in
the 2005–06 school year. Roybal held that position, at two
district schools, through the 2011–12 school year. Prior to
the 2012–13 school year, Cerna reassigned Roybal to work as
an assistant principal at a different school. The District raised
Roybal’s salary that year from $90,296.75 to $92,021.39.

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In August 2013, Roybal received his performance review
for the 2012–13 school year. He scored poorly. Believing
the evaluation was inaccurate and did not comply with state
law, Roybal requested District administrators correct it. After
they failed to do so, Roybal retained attorney Kevan Montoya
(“Montoya”). Montoya subsequently sent the District a letter
stating he was reviewing Roybal’s evaluation. The letter
angered Cerna.
The District thereafter served Roybal with a Notice of
Reassignment. The May 2, 2014 notice stated that, pursuant
to Washington Revised Code § 28A.405.230, the District was
reassigning Roybal for the 2014–15 school year to work as a
teacher, at a base salary of $56,599. The notice also stated
that if he had questions to contact the District Human
Resources Director.
On May 15, 2014, the District served Roybal with a
second notice, reiterating its decision to reassign Roybal and
to pay him $56,599. The notice stated the District was
reassigning Roybal because he had “[n]ot successfully
demonstrated the qualities and skills necessary for an
administrative position in the District.” The notice then listed
reasons for the reassignment, including insubordination, poor
communication and judgment, and failure to comply with
laws concerning student discipline. In addition, citing section
28A.405.230, the notice explained the District Board of
Directors would hold an executive session to allow Roybal
“to meet informally with the board and request
reconsideration for [h]is reassignment.”
The notice
concluded by informing Roybal that if he had questions, he
could contact the District Human Resources Director.

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On May 22, 2014, Roybal, represented by Montoya,
attended the board session. Montoya presented a written
submission to the board, explaining why the District had
erred in reassigning Roybal. The board upheld the District’s
decision in a June 2, 2014 letter.
B. Procedural History
Roybal sued Toppenish in Washington state court,
bringing two claims under 42 U.S.C. § 1983: (1) that
Toppenish reduced his salary without due process and
(2) retaliated against him for speaking to an attorney, as well
as various state law claims. Toppenish removed the case to
federal court where the parties jointly moved for summary
judgment. Toppenish argued they did not violate due process
or retaliate against Roybal. Cerna argued he was entitled to
qualified immunity in his individual capacity. In his crossmotion, Roybal argued he was entitled to judgment as a
matter of law on his due process claim.
The district court denied Toppenish’s motion, concluding
they violated due process as a matter of law, that genuine
issues of material fact existed whether they violated Roybal’s
First Amendment rights, and that Cerna was not entitled to
qualified immunity. The district court granted summary
judgment to Roybal on his due process claim.
Toppenish then pursued this interlocutory appeal as to the
qualified immunity denial and on the merits of the
constitutional claims.

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JURISDICTION AND STANDARD OF REVIEW
We must first determine whether we have jurisdiction to
entertain this interlocutory appeal. Our interlocutory
appellate jurisdiction under 28 U.S.C. § 1291 to review the
denial of qualified immunity is limited to questions of law.
Lee v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004). The
Supreme Court has made clear that our jurisdiction does not
extend to those appeals which involve whether the pretrial
record set forth a “genuine” issue of fact for trial. Johnson v.
Jones, 515 U.S. 304, 319–20 (1995).
In this case, the district court concluded, as a matter of
law, that Toppenish violated Roybal’s clearly established due
process rights. We therefore have jurisdiction to review the
denial of qualified immunity, as well as the summary
judgment grant to Roybal, as to the due process claim. See
Mueller v. Auker, 576 F.3d 979, 989 (9th Cir. 2009)
(“[Granting summary judgment] as a matter of law on the
merits of a constitutional claim, and against a defendant
asserting qualified immunity, is the equivalent of a denial of
such an assertion.”). We review a district court’s denial of
summary judgment on qualified immunity grounds and the
grant of summary judgment de novo. Id. at 991.
We do not have jurisdiction, however, to review the
denial of qualified immunity as to Roybal’s First Amendment
retaliation claim. On appeal, Toppenish argues that the
district court erred in determining genuine issues of fact
existed whether Toppenish violated Roybal’s First
Amendment rights. But that determination “is categorically
unreviewable on interlocutory appeal.” Eng v. Cooley,
552 F.3d 1062, 1067 (9th Cir. 2009). Moreover, the First
Amendment retaliation claim is not “inextricably

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intertwined” with the due process claim such that we may
exercise pendent jurisdiction to review it. See Cunningham
v. Gates, 229 F.3d 1271, 1284 (9th Cir. 2000). We therefore
limit our review to the procedural due process claim.
ANALYSIS
“A procedural due process claim has two distinct
elements: (1) a deprivation of a constitutionally protected
liberty or property interest, and (2) a denial of adequate
procedural protections.” Brewster v. Bd. of Educ., 149 F.3d
971, 982 (9th Cir. 1998).
A. Property Interest
Property interests are not created by the Constitution,
instead “they are created and their dimensions are defined by
existing rules or understandings that stem from an
independent source such as state law.” Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 577 (1972). A property
interest arises only where there is a legitimate claim of
entitlement, not merely an abstract need or desire for the
particular benefit. Id.
Roybal correctly asserts Washington Revised Code
§ 28A.405.230 created a constitutionally protected property
interest in the salary he received as a principal.1 It did so by
1

In relevant parts, section 28A.405.230 reads:
Any certificated employee of a school district employed
as . . . [a] principal . . . shall be subject to transfer, at the
expiration of the term of his or her employment
contract, to any subordinate certificated position within
the school district. “Subordinate certificated position”

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treating the reduction of a principal’s salary as an adverse
change in contract status, and by requiring any adverse
change in contract status be supported by probable cause. See
Sanchez v. City of Santa Ana, 915 F.2d 424, 429 (9th Cir.
1990).
Section 28A.405.230 governs when a district may transfer
school administrators to other positions in the district.2
Relevant here, it prohibits a district from transferring
principals with three or more years of consecutive service to
lower paying positions. A district can still transfer
principals—“to match the skills of the individual
administrator with the District’s needs”—but the transfers are
permissible only if the principals’ respective salaries are not
reduced. Sneed v. Barna, 912 P.2d 1035, 1038 (Wash. Ct.
App. 1996).
Section 28A.405.230 itself does not explain how a district
might divest principals of this protection. But Washington
authority describes section 28A.405.230’s protection as
“tenure,” allowing principals to be removed from their
positions only when the decision to do so is supported by

. . . shall mean any . . . position for which the annual
compensation is less than the position currently held by
the administrator. . . . PROVIDED, That in the case of
principals such transfer shall be made at the expiration
of the contract year and only during the first three
consecutive school years of employment as a principal
....
2

Principals first employed after June 10, 2010, are subject to a
different transfer statute, Washington Revised Code § 28A.405.245. That
statute does not apply here because the District first employed Roybal as
a principal in 2005.

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probable cause. Odegaard v. Everett Sch. Dist. No. 2,
797 P.2d 1152, 1155 (Wash. 1990); see also Bellevue Pub.
Sch. Dist. No. 405 v. Benson, 707 P.2d 137, 141 (Wash. Ct.
App. 1985) (stating that a demotion from principal to teacher,
accompanied by a salary reduction, required a predeprivation
probable cause hearing). Such a restriction, limiting the
grounds on which salary may be reduced, creates a reasonable
expectation that principals will continue to receive their
salary, and therefore, a protected property right. See Brady
v. Gebbie, 859 F.2d 1543, 1548 (9th Cir. 1988).
Because Roybal served seven years as a principal in the
District, he had a protected property interest in the salary he
attained as a principal, pursuant to section 28A.405.230.
Toppenish deprived him of this interest when they reduced
his salary for the 2014–15 school year.
Toppenish contends Roybal did not have a protected
property interest. They argue section 28A.405.230 only
protects principals, and Roybal was an assistant principal
when the District transferred him and reduced his salary in
2014. This is beside the point. Roybal’s protected property
interest vested after he served three years as a principal in the
District. The District could not divest him of his interest
simply because, as of 2014, Roybal’s job title and
responsibilities had changed. Once conferred, the District
could not deprive Roybal of his property interest without due
process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
541 (1985) (“While the legislature may elect not to confer a
property interest in public employment, it may not
constitutionally authorize the deprivation of such an interest,
once conferred, without appropriate procedural safeguards.”
(quoting Arnett v. Kennedy, 416 U.S. 134, 167 (1974))). We

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turn next to whether the District provided Roybal all the
process he was due.
B. Process Due
“[O]nce a court determines that a protected property
interest has been taken, ‘the question remains what process is
due.’” Brewster, 149 F.3d at 983 (quoting Morrissey v.
Brewer, 408 U.S. 471, 481 (1972)). In its order, the district
court determined Roybal did not receive due process because
Toppenish violated state law. Specifically, the district court
concluded that Toppenish did not comply with Washington
Revised Code § 28A.405.300, which entitles an employee to
a predeprivation probable cause hearing.
Toppenish’s failure to comply with section 28A.405.300
does not resolve the issue currently before us: whether
Toppenish violated federal due process, a question of federal,
not state, law. Loudermill, 470 U.S. at 541. Federal due
process does not necessarily entitle a plaintiff to the same
procedures provided by state law. Rather, under federal law,
what process is due is determined by context, to be analyzed
in accordance with the three-part balancing test described in
Mathews v. Eldridge, 424 U.S. 319 (1976). Orloff v. Cleland,
708 F.2d 372, 378–79 (9th Cir. 1983).
We recognize that a violation of state law causing the
deprivation of a federally protected right may form the basis
of a § 1983 action. But this rule does not apply where, as
here, the state-created protections reach beyond that
guaranteed by federal law. Lovell v. Poway Unified Sch.
Dist., 90 F.3d 367, 370 (9th Cir. 1996).

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Under Washington law, employees are entitled to notice
and a trial-like predeprivation hearing to determine whether
the adverse employment action is supported by probable
cause. Wash. Rev. Code. § 28A.405.310. As part of the
hearing, the parties may conduct discovery and call witnesses.
Id. To satisfy federal due process minimums, by contrast,
employees need only receive notice and an opportunity for a
hearing before being deprived of their property interest.
Loudermill, 470 U.S. at 546. To that end, employees are
entitled to “oral or written notice of the charges . . . , an
explanation of the employer’s evidence, and an opportunity
[for employees] to present [their] side of the story.” Id.
Washington law, therefore, provides greater protection than
federal law and the district court erred in resting its analysis
on a violation of state law.
In any event, it is clear from the record Roybal received
all the process due to him before the board made a final
decision with respect to his position and salary. Brewster,
149 F.3d at 985–86 (specifying that predeprivation hearing
must occur before employees are “finally” deprived of their
property interest). That final decision to reassign Roybal and
reduce his salary came in the board’s June 2, 2014 letter. See
section 28A.405.230 (stating “[t]he board shall notify the
administrator in writing of its final decision within ten days
following its meeting with the administrator”).
Before June 2, 2014, Roybal twice received notice, on
May 2 and May 15, that the District was reassigning him for
the 2014–15 school year. The May 15, 2014 notice explained
the charges against Roybal—that he was not adequately
performing in his administrative role—and identified the
grounds for his reassignment.

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Roybal also had opportunities to be heard in his own
defense. Both notices solicited Roybal’s input when they
directed him to contact the District Human Resources
Director with any questions. More significantly, Roybal,
represented by counsel, attended the school board session on
May 22 where he presented the board with a written
submission addressing why the District had erred in
reassigning him. That hearing satisfied Loudermill.
CONCLUSION
We hold Toppenish did not violate Roybal’s due process
under federal law. Accordingly, we reverse the summary
judgment grant to Roybal and direct the district court to enter
judgment on behalf of Toppenish. Additionally, because we
conclude we lack jurisdiction to review Roybal’s First
Amendment retaliation claim, that claim should proceed to
trial in district court.
REVERSED IN PART, DISMISSED IN PART. Each
party to bear its own costs on appeal.