Massey v. Board of Trustees of the Ogden Area Community Action Committee

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 13 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
H.C. MASSEY,
Plaintiff-Appellant,
and
MARY DEAN; WOODROW
FLOWERS; JAMES H. GILLESPIE;
ELIZA HILL; DOROTHY LEE;
JIMMY LONG; LILLIAN MEDINA;
BETTY SAWYER; DUNNESE
SCOTT,
Plaintiffs,
v. No. 00-4037
BOARD OF TRUSTEES OF THE (D.C. No. 97-CV-124)
OGDEN AREA COMMUNITY (D. Utah)
ACTION COMMITTEE, a non-profit
corporation,
Defendant-Appellee.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before BRISCOE, PORFILIO, Circuit Judges, and MARTEN , District Judge **
.
Plaintiff H.C. Massey (Massey) appeals the district court’s order of
summary judgment in favor of defendant the Board of Trustees of the Ogden
Area Community Action Committee, Inc. (Board). We exercise jurisdiction
pursuant to 28 U.S.C. § 1291, and affirm.
Massey was executive director of Ogden Area Community Action
Committee, Inc. (OACAA), a nonprofit corporation established “to stimulate a
better focusing of all available federal, state and local resources to aid low
income individuals” in Ogden, Utah, and the surrounding area. Aplt. Br. at 4-5.
The Board claimed it terminated Massey’s employment for “just cause.” Id. at
94. Massey sued the Board and several of the Board members who voted to
uphold his termination, alleging he was wrongfully terminated without due
process in violation of 42 U.S.C. § 1983. All defendants moved for summary
judgment, arguing they could not be found in violation of § 1983 because they
were not state actors. The district court agreed and granted summary judgment in
favor of the defendants. Massey appeals this decision only as to the Board.
We review the district court’s grant of summary judgment de novo,
applying the same legal standard as the district court. See Kendrick v. Penske
The Honorable J. Thomas Marten, United States District Judge, District
**
of Kansas, sitting by designation.
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Transp. Servs., Inc. , 220 F.3d 1220, 1225 (10th Cir. 2000). “Summary judgment
is appropriate ‘if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.’” Id. (citing Fed. R. Civ. P. 56(c)). “When
applying this standard, we review the evidence and draw reasonable inferences
therefrom in the light most favorable to the nonmoving party.” Id.Section 1983 “creates a cause of action against individuals who violate
federal law while acting ‘under color of state law.’” David v. City & County of
Denver , 101 F.3d 1344, 1353 (10th Cir. 1996); see also 42 U.S.C. § 1983.
“[T]he only proper defendants in a Section 1983 claim are those who represent
[the state] in some capacity, whether they act in accordance with their authority
or misuse it.” Gallagher v. “Neil Young Freedom Concert” , 49 F.3d 1442, 1447
(10th Cir. 1995) (internal quotation omitted).
Massey alleges the Board was a state actor engaged in state action. His
theory is that Utah state officials influenced the Board to terminate him. More
specifically, he contends that Anne Kagie, Director of the Community Services
Office of the Utah State Department of Community and Economic Development,
orchestrated his termination.
Whether an action was taken “under color of state law” or whether it was a
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“state action” are two separate areas of inquiry. See Pino v. Higgs , 75 F.3d 1461,
1464 (10th Cir. 1996). However, since “state action necessarily constitutes
action under color of state law,” id. , the Board can be held liable if it was a state
actor engaged in state action. “Application of the state action doctrine has been
characterized as one of the more slippery and troublesome areas of civil rights
litigation.” Gallagher , 49 F.3d at 1447. The Supreme Court has taken a
“flexible” approach, see id. , applying four different tests, referred to as the nexus
test, the symbiotic relationship test, the joint action test, and the public functions
test, see Anaya v. Crossroads Managed-Care Sys., Inc. , 195 F.3d 584, 595 (10th
Cir. 1999). Each test requires very fact-specific inquiries. See Gallagher , 49
F.3d at 1448. It appears that Massey is invoking two of these tests.
Massey implicates the nexus test by arguing that a state “can be held
responsible for a private decision only when it . . . has provided such significant
encouragement, either overt or covert, that the decision at issue must be deemed
to be that of the State.” Aplt. Br. at 30-31 (citing Blum v. Yaretsky , 457 U.S.
991 (1982)). Under the nexus test, courts consider whether “‘there is a
sufficiently close nexus’ between the government and the challenged conduct
such that the conduct ‘may be fairly treated as that of the State itself.’”
Gallagher , 49 F.3d at 1447 (quoting Jackson v. Metro. Edison Co. , 419 U.S. 345,
351 (1974)).
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Massey also relies upon the symbiotic relationship test – “the cumulative
effect of all of these links amounted to a symbiotic relationship that presented a
question of fact as to the existence of state action.” Aplt. Br. at 33-34. Under
the symbiotic relationship test, courts inquire whether the state “‘has so far
insinuated itself into a position of interdependence’ with a private party that ‘it
must be recognized as a joint participant in the challenged activity.’” Gallagher ,
49 F.3d at 1451 (quoting Moose Lodge No. 107 v. Irvis , 407 U.S. 163, 175
(1972)).
A review of all the evidence indicates that Massey cannot meet either test.
There is no link between Massey’s termination and the state. Rather, what
prompted Board action were negative reports from many sources about Massey’s
management of OACAA. All major sources of funding identified problems with
OACAA’s compliance with rules. A U.S. Department of Health and Human
Services (HHS) audit of OACAA’s Head Start program uncovered substantial
noncompliance with financial and administrative procedures. For example, HHS
found OACAA was “unable to produce accurate and complete disclosure of
financial data of the agency,” and could not “accurately account for expenditures
by grant year and funding period.” Aplt. App. at 19. The audit found the
deficiencies so grave that continuance in the Head Start program required that
OACAA take various actions no later than June 19, 1997, including:
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OACAA must reconstitute the Board of Directors to assure that, at a
minimum, a quorum of Board members are seated.
OACAA must act to discharge the present Executive Director from
his current position in order to restore public trust and confidence in
its program. This objective cannot be met if OACAA allows the
Executive Director to remain in his current position.
Aplt. App. at 19.
Massey seeks to establish state action by asserting Kagie was responsible
for the audit. Specifically, Massey alleged “the state had called the federal
government in Denver and asked the federal government to do certain things to
remove [him],” and he believed Kagie made that call. Aplt. App. at 218. Massey
stated a staff member told him someone named Bob at the federal government
had called the staff member to say he had been called by a person from the state
who wanted Massey fired, and that the person from the state was Kagie. Massey
submits no admissible evidence in support of this assertion.
Other funding sources also identified problems with Massey’s
management. Although the actual audit report identifying the problems is not in
the record, a letter from the Utah Department of Community and Economic
Development, Division of Community Development, identified contract
violations by OACAA that justified contract termination and termination of
OACAA’s participation in the Federal Community Services Block Grant program
and, thus, elimination of funding. See id. at 12-13. Massey claims the fact that
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Kagie signed this letter is “evidence” that she put OACAA’s funding in jeopardy.
Massey does not contest the allegation that OACAA violated its contract. Rather,
he tries to blame the problem on the messenger. This allegation is unsupported.
Further, an independent investigator hired to evaluate various employee
grievances filed against Massey found serious flaws in his management skills and
possible illegalities in procedures. See id. at 166-205. Massey alleges Kagie was
“involved” with the grievances, providing the requisite state action. However, he
expressly states that he is not alleging Kagie “concocted the complaints against
him” or that she influenced the investigation of the grievances. See Aplt. Br. at
32. Rather, he contends “Kagie was working behind the scenes to create a fertile
environment” for his termination. Id. This is not evidence of state action.
The district court’s grant of summary judgment in favor of the Board is
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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