Adams v. City of Oklahoma

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 7 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

JANINE A. ADAMS; CHARLES C. SAMUEL,

Plaintiffs-Appellants,

v.
No. 97-6175
THE CITY OF OKLAHOMA CITY, a municipal (D.C. No. CIV-96-399-T)
corporation; DONALD D. BOWN, City (W.D. Okla.)
Manager; DANNY TERRELL, Director, General
Services Department; TERRY PATTILLO,
Assistant Director, General Services Department,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

*
This order and judgment is not binding precedent, except under the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.
 Plaintiffs Janine A. Adams and Charles C. Samuel appeal from the district

court’s orders granting summary judgment in favor of defendants on their claims

of violation of their First Amendment rights under 42 U.S.C. § 1983, retaliation

under 42 U.S.C. § 2000e-3(a) (Title VII), breach of contract, and defamation.

Ms. Adams also appeals the grant of summary judgment on her claim of violation

of equal protection under § 1983 and her separate breach of contract claim. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse and

remand in part for further proceedings on plaintiffs’ breach of contract claim.

I. FACTS

In August 1984, Mr. Samuel came to work for the Oklahoma City General

Services Department. At the time the alleged incidents giving rise to this suit

began occurring in 1993, he was Superintendent of the Department's Building

Management Division. In February 1985, Ms. Adams began her employment with

the City as a word processor/typist in the City Manager's Office. In March 1988,

Ms. Adams laterally transfered into the Building Management Division as a Staff

Secretary, ultimately serving as Mr. Samuel's secretary.

In October or November of 1993, Ms. Adams made an internal complaint of

sexual harassment against a co-worker to her immediate supervisor, Mr. Samuel.

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Mr. Samuel brought the complaint to the attention of his supervisor, Jim Crosby,

then Director of the General Services Division, who asked Mr. Samuel to counsel

the co-worker about his behavior. Mr. Samuel did so.

In December 1993, Ms. Adams was transfered from the Building

Management Division to the Personnel Department. Although previously

classified as a Secretary III, she was transfered to a Secretary II position. The

parties dispute whether the transfer was voluntary, with Ms. Adams claiming it

was not. The transfer was described as "personnel generated" on the relevant

personnel action form.

Although she was his secretary, Mr. Samuel was not informed that Ms.

Adams was being transfered. Defendant Terry Pattillo, Assistant Director of the

General Services Division, informed Ms. Adams of the transfer, telling her that

Mr. Crosby believed the transfer was in her and the City’s best interests. Just

prior to her transfer, Ms. Adams was told there were rumors circulating that she

and Mr. Samuel were having an affair.

In January and February 1994, Mr. Samuel was denied an annual merit

increase and placed on probation by Mr. Crosby. In May 1994, on Mr. Crosby’s

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last day of employment with the City, Mr. Samuel received his merit increase,

was removed from probation, and was told the work environment in his division

had improved.

On February 7, 1994, Ms. Adams grieved her “involuntary transfer,”

alleging sex discrimination. On June 7, 1994, she filed a related complaint with

the Equal Employment Opportunity Commission (EEOC), alleging sex

discrimination and retaliation. Mr. Samuel was asked to respond to specified

investigative questions submitted to the defendant City of Oklahoma City by the

EEOC. According to Mr. Samuel, he was told by defendant Danny Terrell, now

the Director of the General Services Division and Mr. Samuel’s supervisor, to

answer “in the best interests of the City.” Mr. Samuel’s response was limited to

the sexual harassment complaint, and ultimately was not submitted to the EEOC.

Rather, the City submitted a response denying knowledge of any sexual

harassment complaint by Ms. Adams during the relevant time period established

by the EEOC.

While her internal grievance and EEOC complaint were pending, Ms.

Adams and defendant City Manager Donald D. Bown entered into an agreement

and release of claims. Under the agreement, Ms. Adams was returned to her

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Secretary III position in the Building Management Division in exchange for

withdrawing her grievance and EEOC claim. The parties further agreed that the

City would not pursue any personnel actions against Ms. Adams based on

allegations, accusations or complaints made prior to execution of the agreement.

By its terms, the agreement was confidential.

After Ms. Adams’ return to the Building Management Division in July

1994, Mr. Terrell had several meetings with Mr. Samuel to discuss “complaints”

about the job performances of both Mr. Samuel and Ms. Adams. Mr. Terrell also

directed Mr. Samuel never to have Ms. Adams in his office with the door closed.

In October 1994, Mr. Samuel found a memorandum addressed to the

personnel director on his desk. The memo had been written by Chris Spencer, an

employee Mr. Crosby had introduced into the Building Management Division

around the time of Ms. Adams’ earlier transfer. Because Mr. Samuel believed the

memorandum was defamatory, he met with Mr. Terrell to discuss possible

disciplinary action against Mr. Spencer. When questioned, Mr. Spencer claimed

the memorandum was in response to information he had received indicating Ms.

Adams and Mr. Samuel were trying to have him fired. Mr. Spencer stated he

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never sent the memorandum to anyone. Mr. Terrell refused to authorize

disciplinary action against Mr. Spencer.

Following her return to the Building Management Division, several

complaints were made about Ms. Adams’ performance, and she received

counseling on at least two occasions. She believed she was being deliberately

harassed and filed grievances. On February 2, 1995, she went to Mr. Samuel’s

office to meet with him regarding her grievances. Unaware of Mr. Terrell’s

directive to Mr. Samuel, Ms. Adams closed the door. When Mr. Pattillo and Mr.

Terrell were informed, they proceeded to Mr. Samuel’s office, asked Ms. Adams

to leave, and met with Mr. Samuel.

Between February 2 and February 8, 1994, Mr. Terrell and Mr. Pattillo

discussed the problems in Mr. Samuel’s division with Mr. Bown, including Mr.

Samuel’s violation of Mr. Terrell’s directive not to be in his office with the door

closed with Ms. Adams. It was determined that both Mr. Samuel and Ms. Adams

should be terminated. On February 9, 1995, Mr. Samuel was terminated by Mr.

Terrell “in the best interest of the City.” The following day, Mr. Terrell

terminated Ms. Adams “for the good of the service.” Both Mr. Samuel and Ms.

Adams subsequently filed grievances.

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 During her grievance process, Ms. Adams was told her termination was due

to the attempts she and Mr. Samuel were making to have Mr. Spencer fired and

because her alleged relationship with Mr. Samuel created an appearance of

favoritism. As a result of the grievance process, however, Ms. Adams was

offered reinstatement to her position, with back pay and benefits. She declined.

During his grievance process, Mr. Samuel was told he was terminated

because of insubordination and failure to correct personnel problems in the

Building Management Division. After completion of the grievance procedure,

Mr. Bown upheld Mr. Samuel’s termination.

In July 1995, Mr. Samuel and Ms. Adams filed EEOC complaints. In

March 1996, this lawsuit, raising Title VII, § 1983, and state law claims,

followed. The district court granted defendants’ motions for summary judgment

on all claims. Ms. Adams and Mr. Samuel now appeal, arguing there was

sufficient evidence to preclude the grant of summary judgment.

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo,

applying the same legal standard used by the district court pursuant
to Fed. R. Civ. P. 56(c). Summary judgment is appropriate if the

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 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
judgment as a matter of law. When applying this standard, we
examine the factual record and reasonable inferences therefrom in
the light most favorable to the party opposing summary judgment.

Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation marks and

citation omitted). “[T]he relevant inquiry is whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-

sided that one party must prevail as a matter of law.” Bingaman v. Kansas City

Power & Light Co., 1 F.3d 976, 980 (10th Cir. 1993) (quotation marks and

citation omitted).

“To avoid summary judgment, the evidence must be such that a reasonable

jury could return a verdict for the nonmoving party.” Black v. Baker Oil Tools,

Inc., 107 F.3d 1457, 1460 (10th Cir. 1997) (citation and quotation omitted). The

substantive law of the case determines which facts are material. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Unsupported conclusory

allegations do not create an issue of fact. See Elsken v. Network Multi-Family

Sec. Corp., 49 F.3d 1470, 1476 (10th Cir. 1995).

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III. RETALIATION UNDER TITLE VII

A. MS. ADAMS

Ms. Adams argues that summary judgment was improper on her Title VII

claim against the City in which she alleged she was terminated in retaliation for

making an internal claim of sexual discrimination and for filing a complaint with

the EEOC. The district court decided Ms. Adams was terminated for a

nondiscriminatory reason.

To prove retaliation,

[a] plaintiff must first establish a prima facie case of retaliation. If a
prima facie case is established, then the burden of production shifts
to the defendant to produce a legitimate, nondiscriminatory reason
for the adverse action. If evidence of a legitimate reason is
produced, the plaintiff may still prevail if she demonstrates the
articulated reason was a mere pretext for discrimination. The overall
burden of persuasion remains on the plaintiff.

Sorensen v. City of Aurora, 984 F.2d 349, 353 (10th Cir. 1993).

According to Ms. Adams, she produced sufficient evidence to show

retaliation. She points to evidence she was transfered from her Secretary III

position to a Secretary II position a month or two after she complained of sexual

harassment; Mr. Pattillo solicited information from other employees concerning

her relationship with Mr. Samuel; the City agreed to restore her Secretary III

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position only after she filed an EEOC complaint; Mr. Terrell complained about

her to Mr. Samuel after her return transfer; Mr. Terrell failed to give any reasons

when she was terminated; and she did not receive progressive discipline or a

pretermination hearing.

This evidence, considered along with the record as a whole, does not

establish that Ms. Adams was terminated in retaliation for her internal complaint

of employment discrimination or her EEOC complaint. Ms. Adams failed to

demonstrate that the nondiscriminatory reason for her termination, attempting to

have Mr. Spencer fired, was a mere pretext for retaliation. Thus, the district court

correctly granted summary judgment on Ms. Adams’ Title VII claims.

B. MR. SAMUEL

Mr. Samuel argues the district court erred in granting summary judgment on

his Title VII claim, alleging his termination was in retaliation for his truthful

response to Ms. Adams’ EEOC complaint. 1 The district court concluded Mr.

1
Defendants argue that Mr. Samuel’s response was not protected activity.
Title VII provides that an employer shall not discriminate against an employee
who participates “in any manner” in an EEOC investigation. 42 U.S.C.
§ 2000e-3(a). Because Mr. Samuel prepared his response in the pending EEOC
investigation pursuant to his employer’s request, we assume for purposes of this
appeal that it was protected activity. Cf. Morris v. Boston Edison Co.,
942 F. Supp. 65, 69-71 (D. Mass. 1996) (conduct in internal company

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Samuel failed to prove a prima facie case of retaliation because he did not present

evidence to support his claim that his termination was related to the preparation

of the EEOC response or in any way connected to Ms. Adams’ EEOC complaint.

To establish a prima facie case of retaliation under Title VII, a plaintiff

must demonstrate “(1) protected opposition to Title VII discrimination or

participation in a Title VII proceeding; (2) adverse action by the employer

subsequent to or contemporaneous with such employee activity; and (3) a causal

connection between such activity and the employer’s adverse action.” Berry v.

Stevinson Chevrolet, 74 F.3d 980, 985 (10th Cir. 1996). “The causal connection

may be demonstrated by evidence of circumstances that justify an inference of

retaliatory motive, such as protected conduct closely followed by adverse action.”

Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir.), cert.

denied, 459 U.S. 1071 (1982).

Mr. Samuel claims there is sufficient evidence to establish a prima facie

case of retaliation, and points to the following occurrences. After Ms. Adams

complained to him of sexual harassment, he notified Mr. Crosby. Soon after he

investigation not protected activity under § 2000e-3(a) because conduct was not
taken in regard to investigation under statute).

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was notified, Mr. Crosby placed Mr. Samuel on probation, albeit for reasons

unrelated to her complaint. According to Mr. Samuel, he was directed to respond

to the EEOC investigation in a manner representing the best interests of the City.

The City failed to include his statement regarding Ms. Adams’ sexual harassment

complaint in its response to the EEOC. Mr. Samuel maintains that after he

prepared his response to the EEOC complaint and Ms. Adams was transfered back

to his division until the time of his termination, he received continual complaints

from Mr. Terrell. Mr. Terrell also prohibited Mr. Samuel from taking any

disciplinary action against Mr. Spencer arising from the defamatory

memorandum. Additionally, Mr. Samuel did not receive progressive discipline or

a pretermination hearing.

Upon review of the record, we agree with the district court's finding that

there is no evidence of a causal connection between any protected activity and

Mr. Samuel's subsequent termination. The evidence presented does not justify an

inference of retaliatory motive. Nothing indicates the EEOC response was a basis

for complaints against Mr. Samuel or a reason for his termination. Mr. Samuel

was discharged for meeting behind a closed door with Ms. Adams after having

been directed not to do so and because he did not operate his division in an

acceptable manner. Mr. Samuel failed to present a prima facie case of retaliation.

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Accordingly, we affirm the district court’s grant of summary judgment on this

issue.

IV. 42 U.S.C. § 1983 CLAIMS

A. FIRST AMENDMENT

Ms. Adams alleges her right to complain of sexual harassment is protected

by the First Amendment. Mr. Samuel argues his bringing Ms. Adams’ internal

complaint to the attention of Mr. Crosby and his participation in the EEOC’s

investigation were activities protected by the First Amendment. 2

As to the individual defendants, the district court concluded Ms. Adams

had not engaged in protected speech on a matter of public concern. The district

court determined Mr. Samuel had submitted no evidence his termination had

anything to do with his participation in the preparation of the EEOC response.

The district court granted summary judgment in favor of the City because Mr.

2
Defendants argue that plaintiffs’ First Amendment claims are not
independent of their Title VII claims, and, therefore, Title VII should provide the
exclusive remedy. We disagree. Because plaintiffs have alleged an independent
constitutional basis for their § 1983 claims apart from Title VII, Title VII does
not provide the exclusive remedy. See Drake v. City of Fort Collins, 927 F.2d
1156, 1162 (10th Cir. 1991).

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Samuel and Ms. Adams failed to offer any evidence of a municipal policy or

custom upon which a claim against the City could be based.

“It is well-established that a government employer ‘cannot condition public

employment on a basis that infringes the employee’s constitutionally protected

interest in freedom of expression.’” Lytle v. City of Haysville, 138 F.3d 857, 863

(10th Cir. 1998) (quoting Connick v. Myers, 461 U.S. 138, 142 (1983)). There is

a four-part test to determine whether an employer has infringed a public

employee’s free speech interest. See id. The threshold consideration is whether

the speech in question is a matter of public concern, such that it is of interest to

the community for social, political, or other reasons. See id. (citing Connick, 461

U.S. at 145-49). A matter of interest only to the public employee is not

constitutionally protected. See id. Whether speech addresses a matter of public

concern is “determined by the content, form, and context of a given statement, as

revealed by the whole record.” Connick, 461 U.S. at 147-48.

If the speech does address a matter of public concern, the next step is to

weigh the interests of the employee in expression and the employer in regulating

speech. See Lytle, 138 F.3d at 863. If the speech is protected because the

employee’s interests outweigh the employer’s, “the employee must show that the

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speech was a substantial or motivating factor for the challenged governmental

action.” Id. If the employee meets this burden, the employer must show that it

would have taken the same action regardless of the protected speech. See id.

We conclude, based on the record as a whole, Ms. Adams was speaking on

matters of purely personal concern. Her speech related to her personal

grievances, not to a broader public purpose. See David v. City & County of

Denver, 101 F.3d 1344, 1355 (10th Cir. 1996), cert. denied, 118 S. Ct. 157

(1997). Although Ms. Adams contends sexual harassment is annoying,

embarrassing and demeaning to women in general and to any women in the office

who overheard it or were subjected to it, and that every woman should be able to

stop such behavior without fear of punishment, these allegations are merely

theoretical. See Woodward v. City of Worland, 977 F.2d 1392, 1403-04 (10th Cir.

1992) (speech was personal even though general references were made that other

women may have been subjected to sexual harassment), cert. denied, 509 U.S.

923 (1993). The speech at issue concerned allegations of sexual harassment

affecting only Ms. Adams. At no time did she argue harassment interfered with

the performance of governmental responsibilities. See David, 101 F.3d at 1356.

We agree with the district court’s legal conclusion that Ms. Adams’ speech did

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not involve matters of public concern. See Rankin v. McPherson, 483 U.S. 378,

386 n.9 (1987) (whether speech is protected is question of law).

Mr. Samuel contends he responded to the EEOC investigation honestly

because he owed it to Ms. Adams and other females to do so. Because he had

nothing to gain personally from responding honestly, especially since he was

asked to respond in the best interests of the City, he contends his speech was a

matter of public concern.

Whether Mr. Samuel’s speech is a matter of public concern is a somewhat

closer question. His internal response noting only a single episode of sexual

harassment may be enough to establish speech rising to the level of public

concern. Cf. Starrett v. Wadley, 876 F.2d 808, 817 (10th Cir. 1989) (speech

disclosing any evidence of impropriety by city official involves matter of public

concern). Assuming the speech is constitutionally protected, we conclude, as did

the district court, Mr. Samuel failed to present any evidence indicating he was

terminated in retaliation for his response to the EEOC investigation. See Wulf v.

City of Wichita, 883 F.2d 842, 856-57 (10th Cir. 1989) (“Upon a finding that the

speech in question is constitutionally protected, the plaintiff must prove that the

speech was a substantial or motivating factor in the challenged employment

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decision.”). There is no evidence any individual defendant commented to Mr.

Samuel regarding his EEOC response, or that his response was inconsistent with

the City’s position that no discrimination or retaliation had taken place during the

relevant time period. Nothing in Mr. Samuel’s response would have assisted Ms.

Adams in proving her discrimination claim. There is no evidence of any

connection between Mr. Samuel's EEOC response and his termination. Based on

the record, we conclude Mr. Samuel was terminated for nonretaliatory reasons.

Mr. Samuel and Ms. Adams failed to prove a First Amendment violation.

Therefore, the district court correctly granted summary judgment in favor of the

individual defendants. We need not address their qualified immunity defense.

See Lytle, 138 F.3d at 863.

Mr. Samuel and Ms. Adams argue the City is liable under § 1983 because

each of the individual defendants was a policy maker. A municipality may be

held liable for § 1983 claims only if its custom or policy results in a violation of

federal law. See David, 101 F.3d at 1357 (citing Monell v. New York City Dep’t

of Social Servs., 436 U.S. 658, 694 (1978)). Because plaintiffs’ § 1983

allegations against the City are the same as those against the individual

defendants, our conclusion that there was no First Amendment violation also

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establishes the City’s entitlement to summary judgment on this issue. See id. at

1358; see also United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994)

(permitting affirmance of district court’s decision on any ground for which there

is sufficient record to permit conclusions of law).

B. EQUAL PROTECTION

Although it is not clear from the briefs on appeal, Ms. Adams appears to be

arguing her equal protection rights were violated when she was singled out for

transfer and later terminated in retaliation for complaining about the transfer.

The district court concluded Ms. Adams presented no evidence of a causal

connection between her termination and any prior complaints of sexual

harassment or discrimination. We agree. Thus, there was no deliberate

deprivation of her equal protection rights. See Woodward, 972 F.2d at 1399.

Because there was no equal protection violation, the district court correctly

granted summary judgment for the individual defendants and for the City.

V. STATE LAW CLAIMS

Ms. Adams and Mr. Samuel raised various Oklahoma state law claims

against the City. “When exercising jurisdiction over pendent state claims, we

must apply the substantive law of the forum state and reach the same decision we

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believe that state’s highest court would, just as we would if our jurisdiction rested

on diversity of citizenship.” Lytle, 138 F.3d at 868.

A. BREACH OF CONTRACT

Ms. Adams and Mr. Samuel both argue the City breached their respective

employment contracts by failing to follow applicable policies and procedures

requiring progressive discipline and a “pre-determination” hearing before

dismissal from employment. Ms. Adams and Mr. Samuel state they were denied

an opportunity to defend themselves prior to termination and were not told the

actual reasons for their dismissal when terminated. Mr. Samuel also argues there

were various irregularities in his post-termination grievance proceedings. The

district court concluded any pretermination procedural defects were remedied by

the full post-termination proceedings.

Because the Oklahoma City Charter permits the city manager to dismiss

employees for the good of the City, Ms. Adams and Mr. Samuel do not claim a

property interest in their employment. See Driggins v. City of Okla. City, 954

F.2d 1511, 1514 (10th Cir.), cert. denied, 506 U.S. 843 (1992). Oklahoma courts,

however, will enforce grievance procedures set forth in a personnel manual when

the procedural protections establish entitlement to the procedures themselves. See

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Carnes v. Parker, 922 F.2d 1506, 1511 (10th Cir. 1991); see also Breshears v.

Moore, 792 P.2d 91, 92 (Okla. Ct. App. 1990) (holding policies and procedures

create duty on employer to do certain things before discharge even though

employer has right to discharge any employee at any time for any reason).

The City’s policies and procedures provide that the employee must be

informed of the reasons for dismissal and provided an opportunity to rebut any

charges prior to dismissal. Even dismissal for cardinal infractions precluding

rehiring, such as gross insubordination, normally requires a pre-determination

hearing to allow the employee to respond to the charges. The relevant department

policies and procedures set forth a normal progression of disciplinary actions

consisting of two informal actions followed by three formal actions, a written

reprimand, suspension without pay, and finally dismissal. This policy further

recognizes, however, that for serious violations, dismissal may be warranted as a

first step.

The City denies that these policies and procedures require progressive

discipline or pretermination hearings. As a matter of law, we conclude Ms.

Adams and Mr. Samuel were not entitled to progressive discipline. The policies

of the City apparently permit a subjective determination of what behavior is

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serious enough to warrant dismissal as a first step. However, we further conclude

the City’s policies do establish entitlement to a pre-determination hearing prior to

dismissal.

The City acknowledges Ms. Adams and Mr. Samuel were terminated

without “any real advance notice.” The City claims it provided minimal

compliance with its policies and procedures, noting Ms. Adams and Mr. Samuel

were told their terminations were for the good of the City and were given an

opportunity to rebut that charge when they met individually with Mr. Terrell. The

City admits, however, that this pretermination process was not elaborate. Cf. III

Appellants’ App. at 1002 (Mr. Bown testified that he did not recall Ms. Adams or

Mr. Samuel having pre-determination hearings). Ms. Adams and Mr. Samuel

dispute the adequacy of these pretermination procedures. See, e.g., id. at 917-18

(Ms. Adams testified that she had an opportunity to discuss reasons for her

termination, but only after her termination).

Because there is a genuine issue of material fact as to whether Ms. Adams

and Mr. Samuel received adequate pre-determination hearings, we conclude the

district court erred in granting summary judgment on this issue. Accordingly, the

action is remanded for further proceedings on this breach of contract claim. See

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Kester v. City of Stilwell, 933 P.2d 952, 953-54 (Okla. Ct. App. 1997). Also, the

action is remanded for the district court to consider whether there were

irregularities in Mr. Samuel’s post-termination grievance proceedings.

B. BREACH OF AGREEMENT AND RELEASE OF CLAIMS

Ms. Adams contends the City breached the agreement and release of claims

it entered into with her to resolve her EEOC charge. The agreement provided, in

pertinent part, that all written policies and procedures of the City would apply to

Ms. Adams, the City would not pursue any personnel action against her based on

allegations made prior to the date of the agreement, and the agreement would

remain confidential. According to Ms. Adams, the confidentiality of the

agreement was breached by the City, much of the retaliation she experienced after

her return to the Building Management Division stemmed from complaints raised

at the time of her transfer, and she was terminated based on complaints made

prior to the agreement.

We find no evidence to support this breach of contract claim. The primary

reason for her termination was her conduct toward Mr. Spencer, which occurred

after the settlement agreement. See II Appellants’ App. at 587-88. Ms. Adams’

assertion of breach of confidentiality is conclusory and unsupported; she merely

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states that a vendor told her another city employee was talking about the

agreement. The district court correctly granted summary judgment on this breach

of contract claim.

C. DEFAMATION

Ms. Adams and Mr. Samuel allege the memorandum written by Mr. Spencer

defamed them. The district court determined the City could not be liable because

there was no evidence the allegedly defamatory memorandum was ever published

and because Mr. Spencer was acting outside the scope of his employment when he

wrote the memorandum.

We also fail to find any evidence of publication. See Young v. First State

Bank, 628 P.2d 707, 713 (Okla. 1981) (plaintiff has burden of proving

publication, which is essential element of defamation). Moreover, even if the

memorandum was published internally, such internal publication is not actionable

under Oklahoma defamation law. Cf. Starr v. Pearle Vision, Inc., 54 F.3d 1548,

1553 (10th Cir. 1995) (“intracompany communications do not constitute

actionable publication under Oklahoma defamation law”). Because there was no

evidence of publication, there is no need to discuss whether Mr. Spencer was

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acting within the scope of his employment. We conclude the district court

correctly granted summary judgment on the defamation claim.

The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED in part and REVERSED and REMANDED in part for

further proceedings on plaintiffs’ breach of contract claim. 3

Entered for the Court

WADE BRORBY
United States Circuit Judge

3
On remand, the district court will need to conduct the appropriate analysis to
determine if it should retain jurisdiction over this pendent state claim in light of
the disposition of the federal causes of action. See Anglemyer v. Hamilton County
Hosp., 58 F.3d 533, 541 (10th Cir. 1995); Thatcher Enters. v. Cache County
Corp., 902 F.2d 1472, 1478 (10th Cir. 1990).

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