F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 6 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GERALD ARNOLD WIEDEMANN;
DANIEL R. CHURCHILL; ROBERT
D. LANE; JAMES RAY HANKINS,
Plaintiffs-Appellants,
v. No. 02-6344
(D.C. No. 00-CV-2139-A)
THE CITY OF OKLAHOMA CITY, (W.D. Okla.)
a political subdivision of the State of
Oklahoma,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before MURPHY and PORFILIO , Circuit Judges, and BRORBY , Senior Circuit
Judge.
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
*
This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiffs appeal from the district court’s grant of summary judgment to
defendant in this civil rights suit brought under 42 U.S.C. § 1983 alleging
retaliatory and constructive discharge in violation of plaintiffs’ First Amendment
rights. We affirm.
The parties are familiar with the facts and we need not repeat them in detail
here. Plaintiffs were all discharged (Mr. Hankins alleges that he was
constructively discharged) from their jobs as electrical inspectors for the
defendant City of Oklahoma City. Plaintiffs contended that they were discharged
in retaliation for speaking out on a matter of public concern, specifically, health
and safety matters related to their duties as electrical inspectors. Defendant
asserted that plaintiffs were discharged for falsifying time reports and misusing
work time. Messrs. Wiedemann, Churchill, and Lane grieved their discharges
under their union’s collective bargaining agreement and were ordered reinstated
by the arbitrator. Mr. Wiedemann also grieved other matters with success in a
separate arbitration proceeding. Mr. Hankins did not file a grievance, but joined
in this suit. The district court granted summary judgment to defendant on the
basis that plaintiffs failed to present evidence that they were discharged pursuant
to a custom, policy, or practice and, therefore, defendant, as a municipality, could
-2-
not be held liable under § 1983. See Monell v. Dep’t of Soc. Servs. of City of
New York , 436 U.S. 658, 694 (1978).
Plaintiffs argue on appeal that the district court erred: (1) in refusing to
give preclusive effect to the arbitrators’ findings that defendant failed to advance
legitimate, non-discriminatory reasons for discharging plaintiffs; and (2) in
holding that plaintiffs failed to show that defendant had established a custom,
policy, or practice that led to their discharge.
“We review a grant of summary judgment de novo, applying the same
standard as the district court under Fed. R. Civ. P. 56(c).” Scarberry v.
ExxonMobil Oil Corp. , 328 F.3d 1255, 1256 (10th Cir. 2003). Summary
judgment is warranted “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.” Rule 56(c).
Plaintiffs’ first argument is without merit. The Supreme Court has held
“that ‘in a § 1983 action, a federal court should not afford res judicata or
collateral-estoppel effect to an award in an arbitration proceeding brought
pursuant to the terms of a collective-bargaining agreement.’” Ryan v. City of
Shawnee , 13 F.3d 345, 347 (10th Cir. 1993) (quoting McDonald v. City of West
Branch , 466 U.S. 284, 292 (1984)). Since McDonald , the Court no longer views
-3-
“arbitration [as] inferior to the judicial process for resolving statutory claims.”
Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20, 34 n.5 (1991).
Cf. McDonald , 466 U.S. at 291 (holding that “arbitration is an inadequate
substitute for judicial proceedings). The Court has reiterated, however, that the
conclusion that arbitration under a collective-bargaining agreement does not
preclude a subsequent statutory claim is supported by the “difference between
contractual rights under a collective-bargaining agreement and individual
statutory rights, the potential disparity in interests between a union and an
employee, and the limited authority and power of labor arbitrators.” Gilmer ,
500 U.S. at 34; see also McDonald , 466 U.S. at 290-91.
The Court has also decided since McDonald that a collective bargaining
agreement may preclude a legal action, but only if the waiver of the employee’s
statutory rights is “clear and unmistakable.” Wright v. Universal Maritime Serv.
Corp. , 525 U.S. 70, 80 (1998). Defendant presented evidence that the collective
bargaining agreement covering plaintiffs contains no such explicit waiver.
Aplee. Br. at 7 (citing Aplt. App. at 46, 48). Plaintiffs have offered no evidence
in opposition and therefore have not shown that the district court should have
given preclusive effect to the arbitrators’ findings in their favor in light of the
Supreme Court’s rulings in McDonald , Gilmer , and Wright .
-4-
Plaintiffs’ second issue is without merit for the reasons already thoroughly
discussed by the district court in its September 20, 2002 order.
The judgment of the district court is AFFIRMED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
-5-