F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 28 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
THEODORE MONTGOMERY,
Plaintiff-Appellant,
v. No. 01-7154
THE CITY OF ARDMORE; GARY L.
HENRY, officially and in his
individual capacity; FRATERNAL
ORDER OF POLICE LODGE #108,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. NO. 99-CV-374-P)
David J. Batton, Norman, Oklahoma, for Appellant.
Stephen Brent Bahner, Fischl, Culp, McMillin, Chaffin, Bahner & Long, LLP,
Ardmore, Oklahoma, for Appellee City of Ardmore; Stefan K. Doughty, Ass’t
Attorney General, Oklahoma City, Oklahoma, for Appellee Gary Henry; and
James Patrick Hunt, James R. Moore & Assocs., P.C., Oklahoma City, Oklahoma,
for Appellee Fraternal Order of Police.
Before HENRY, HOLLOWAY, and ANDERSON, Circuit Judges.
HENRY, Circuit Judge.
Theodore Montgomery appears to have let his claims get away from him.
He raises some eleven propositions, as nearly as we can tell, covering violations
of procedural due process and various state tort claims. The defendants,
unhelpfully unfamiliar with final order law, seek to challenge the preservation of
Mr. Montgomery’s appeal. One of them, the Fraternal Order of Police (FOP)
seeks attorneys fees. With the exception of one of Mr. Montgomery’s claims, we
affirm. As to the pretermination due process claim, we conclude that the City of
Ardmore is not entitled to summary judgment, and we therefore vacate that
judgment and remand for further proceedings consistent with this opinion.
I. BACKGROUND
A. Factual Background
1. No confidence in the Chief
Mr. Montgomery was a fourteen-year veteran police officer for the City of
Ardmore and a member of the FOP. At an April 1997 meeting, the FOP called for
a vote of no confidence against the Chief of Police. The request was based on an
allegation that the Chief had covered up an officer’s consumption of alcoholic
beverages that was a contributing factor in a fatal traffic accident. Mr.
Montgomery did not join the majority of the FOP in endorsing the no confidence
vote and refused to sign a letter of no confidence. Rather than participate in the
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vote, Mr. Montgomery got up and left the meeting. Prior to this incident, Mr.
Montgomery alleges he had no problems at work.
On April 28, 1997, an investigator for the district attorney requested to
interview Mr. Montgomery concerning the incident involving the allegedly
intoxicated officer. On April 29, 1997, counsel for Mr. Montgomery agreed to
cooperate, but asked for information regarding the nature of Mr. Montgomery’s
participation. The district attorney’s investigator declined to respond to this
request.
On May 11, 1997, a local newspaper published a letter written by Mr.
Montgomery and other officers in support of the Chief of Police. Mr.
Montgomery alleges that upon the letter’s publication, the atmosphere in the
office worsened, and the authoring officers, including Mr. Montgomery, were
ostracized. Subsequently, the Chief of Police was terminated, and John Beene
was named as interim chief.
On June 23, 1997, when Mr. Montgomery returned from vacation, he was
informed by Interim Chief Beene that he had a new supervisor in the investigative
division and that some of his duties would be changing. His hours were no longer
flexible and he was required to report at 8 a.m. Mr. Montgomery was also
informed that a failure to comply with this condition might lead to the termination
of his employment. According to Mr. Montgomery, before the no-confidence
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vote, the investigative division had allowed its officers to work flexible hours.
He also alleges, with supporting testimony from another officer, that he was the
only officer subject to this new condition. Mr. Montgomery further alleges that,
on June 24, his office was ransacked, and his personal belongings and
photographs were destroyed. Mr. Montgomery maintains that he reported the
incident to Interim Chief Beene, but that no action was taken. Mr. Montgomery
also presents an affidavit from another similarly situated officer, whose
complaints about damage to personal property went unanswered.
Mr. Montgomery also alleges that as a result of his refusal to participate in
the no-confidence vote, he was involved in arguments and confrontations with
other officers. Perhaps most seriously, in his deposition, he testified that during
one call involving several likely gang members, he asked for back-up assistance
from his colleagues and received none.
Mr. Montgomery also faults the FOP and its President, Milton Anthony, for
the failure of his colleagues’ support and for the contentious environment in the
department. Another officer wrote to the FOP seeking an investigation of Mr.
Anthony, based upon the unfair treatment Mr. Montgomery received. Because of
this bias, Mr. Montgomery contends, the FOP would not have helped him, even
had Mr. Montgomery chosen to utilize the grievance procedure.
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2. Leave taken for stress and high blood pressure
On June 26, 1997, Mr. Montgomery began suffering from intense
headaches and blurred vision. Around this time, Mr. Montgomery discovered that
District Attorney Gary Henry had accused him of interfering with the criminal
investigation of the former Chief of Police. Interim Chief Beene sent Mr.
Montgomery home, and Mr. Montgomery sought treatment for stress and high
blood pressure. Mr. Montgomery alleges that the City knew of his condition and
that he sought medical treatment.
On the following day, District Attorney Henry’s statements regarding Mr.
Montgomery’s alleged interference were published in the local newspaper. Two
days later, the FOP published a response, urging Mr. Montgomery to cooperate
with the investigation.
Mr. Montgomery continued to exhibit stress-related symptoms, and he left
for extended medical leave on July 1, 1997. He was placed on medication and
visited a counselor regularly. Mr. Montgomery had not been on similar
medication during the two and a half years before his leave. On July 6, 1997, the
City reclaimed its vehicle from him.
On August 8, 1997, Mr. Montgomery was informed that he would no longer
be paid and that his medical insurance would be terminated. Because the City had
objected to Mr. Montgomery’s eligibility for receipt of long-term disability
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designation of benefits, Mr. Montgomery took short-term disability leave through
the police pension system. Aplt’s App. vol. II, at 377 (Pre-trial order), id. at 744-
46.
In May 1998, Mr. Montgomery contends, he met with the acting Chief, who
told him that he would be welcomed back to work once he received a doctor’s
release. On June 23, 1998, Mr. Montgomery filed a notice of tort claim with the
City. During the leave, he also filed a workers compensation case and requested
compensation due to high blood pressure. The claim was denied, and on July 22,
1998, Mr. Montgomery appealed the decision.
Throughout the course of the summer of 1998, Mr. Montgomery asserts he
was unable to obtain a release from his doctors and counselors to return to work.
He anticipated receiving a doctor’s note allowing him to return to work in
September 1998.
On August 24, 1998, Mr. Montgomery telephoned then-Deputy Chief Beene
and asked about returning to work in September. According to Mr. Montgomery,
Deputy Chief Beene replied that the City would not let Mr. Montgomery return.
He advised Mr. Montgomery to speak to the new Chief of Police, Tony Garrett,
concerning his return to work.
On the same day, Mr. Montgomery testified, he contacted Chief Garrett,
who told him that his rank “had been done away with,” but that Mr. Montgomery
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had not been terminated. Aple’s Supp. App. at 157; Aplt’s App. vol. II, at 377
(pre-trial order). Mr. Montgomery claims that he became first aware of his
termination on February 15, 2000, when he received a copy of a personnel action
form.
According to the City, on August 15, 1998, Mr. “Montgomery was
terminated from his employment pursuant to Section 1116.9 of the Employee
Handbook of the City of Ardmore.” Aplt’s App. vol. II, at 435. Section 1116.9
of the handbook provides that after receipt of long term disability benefits for 365
days, an employee is terminated. The Personnel Action Form documenting this
action was dated September 28, 1998, with an effective date of August 15, 1998.
At all times relevant, the City and the FOP operated under a collective
bargaining agreement (CBA), which established a grievance procedure for FOP
members. However, Mr. Montgomery did not file a grievance under the CBA.
He also did not seek representation from the FOP. He did leave a telephone
message for FOP President Milton Anthony. According to Mr. Montgomery, “Mr.
Anthony never tried to return [his] call.” Aplt’s App. vol. II, at 746. Mr.
Montgomery never communicated directly with Mr. Anthony and made no further
efforts to contact the FOP, although he did try to enlist the help of other union
members.
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B. Procedural Background
1. District court proceedings
On March 22, 1999, Mr. Montgomery filed this action, alleging violations
of his constitutional rights under 42 U.S.C. § 1983, conspiracy to violate his
constitutional rights, and state law tort claims for negligence, breach of contract,
intentional infliction of emotional distress, and defamation. His complaint was
dismissed for Mr. Montgomery’s failure to appear at a scheduling conference. He
refiled a complaint on July 23, 1999.
Mr. Montgomery attempted to file an Amended Complaint on November
30, 1999. The district court denied the request when the court discovered that
Mr. Montgomery filed a different Amended Complaint than the one that
accompanied the request to amend. The court determined that “this act
constituted bad faith.” Aplt’s App. vol. II, at 420 n.1 (Dist. Ct. Order, dated Oct.
22, 2001).
On February 28, 2001, the district court granted the FOP’s motion for
summary judgment and Mr. Henry’s motion to dismiss. The court also granted
the City’s first motion for summary judgment, dismissing Mr. Montgomery’s §
1983 due process and state law tort claims. Because the City failed to address all
of Mr. Montgomery’s claims in its motion for summary judgment, the court set a
deadline for filing a second motion. On October 22, 2001, the district court
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granted the City’s second motion for summary judgment, disposing of Mr.
Montgomery’s First Amendment and retaliation claims.
2. Issues on appeal
Mr. Montgomery now appeals these orders, raising the same claims as he
did before the district court and challenging the imposition of sanctions for his
attempt to file an amended complaint. In response, the defendants attack the
adequacy of Mr. Montgomery’s notice of appeal, because it only refers to the
October 22, 2001 Order and Judgment. Defendant FOP also seeks to overturn the
district court’s decision not to assess attorney fees as a sanction against Mr.
Montgomery. For the reasons set forth below, with the exception of Mr.
Montgomery’s procedural due process claim involving the denial of an adequate
pretermination hearing, we reject all of the parties’ arguments and affirm the
decision of the district court. As to the pretermination procedural due process
claim, we vacate the district court’s grant of summary judgment to the City of
Ardmore and remand for further proceedings consistent with this opinion.
II. DISCUSSION
We begin by considering the adequacy of the notice of appeal. We then
turn to Mr. Montgomery’s contentions that the district court incorrectly dismissed
his claims against the defendants and his challenge to the district court’s sanction
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regarding Mr. Montgomery’s amended complaint. Finally, we address the FOP’s
belated attempt to launch a cross appeal.
A. Notice of Appeal
On November 20, 2001, Mr. Montgomery’s counsel filed a notice of appeal
that stated that Mr. Montgomery “appeals to the United States Court of Appeals
for the Tenth Circuit from the Order entered into in this action on the 22nd day of
October, 2001, granting Defendant, City of Ardmore’s Second Motion for
Summary Judgment.” Aplt’s App. vol. II, at 782. The attached certificate of
mailing indicates that each of the defendants’ attorneys received a copy of the
notice of appeal.
Mr. Montgomery’s counsel did not specifically refer to the February 28,
2001 Order in the notice of appeal. However, as counsel should know, “a notice
of appeal which names the final judgment is sufficient to support review of all
earlier orders that merge in the final judgment.” McBride v. CITGO Petroleum
Corp., 281 F.3d 1099, 1104 (10th Cir. 2002) (collecting cases); see 16A Charles
A. Wright et al., Federal Practice & Procedure § 3949.4 at 72 (3d ed. 1999 &
Supp. 2001) (citing cases). Accordingly, “a failure of the notice of appeal to
specifically refer to a preliminary or interlocutory order does not prevent the
review of that order on appeal. Having appealed from the judgment, the appellant
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is free to attack any nonfinal order or ruling leading up to it.” McBride, 281 F.3d
at 1104 (quoting 20 Moore’s Federal Practice ¶ 303.21[3][c][iii] (3d ed. 2001)).
Because the February 28, 2001 order dismissed only certain of Mr.
Montgomery’s claims, “and thus adjudicated fewer than all the claims and
liabilities of all the parties, it was not a final appealable order and would have
required certification under F ED . R. C IV . P. 54( B ) to be immediately appealable.”
McBride, 281 F.3d at 1104. However, “[a]s an earlier interlocutory order, the
order of dismissal merged into the final judgment. The notice of appeal from the
[October 23, 2001] order and judgment was, therefore, sufficient to support
review of the [February 28, 2001] order [and judgment].” Id. Accordingly, we
proceed to the merits of Mr. Montgomery’s appeal.
B. Mr. Montgomery’s Claims
Mr. Montgomery contends that the district court erred when it granted
summary judgment to each defendant, and when it granted Mr. Henry’s motion to
dismiss. He argues that the City (1) deprived him of procedural due process when
it constructively discharged him without notice when he was on disability leave;
(2) retaliated against him for the exercise of his First Amendment right to free
speech; (3) abridged his First Amendment right to freedom of association; (4)
engaged in civil conspiracy to deprive him of a protected right; and (5) acted
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negligently by failing to train its officers and failed to provide a safe work
environment. 1
He next contends that the FOP conspired with the City to make his
workplace unbearable and to constructively terminate Mr. Montgomery from his
position. He suggests that the FOP engaged in arbitrary and discriminatory
conduct against him. He also alleges that the FOP’s conduct amounted to
intentional infliction of emotional distress.
As to Mr. Henry, Mr. Montgomery argues that he made defamatory
statements to the press, and that Mr. Henry was not immune from suit. Mr.
Montgomery also challenges the district court’s dismissal of his state tort claims.
Lastly, Mr. Montgomery challenges certain of the district court’s discovery
rulings, including its ruling denying his motion to file an amended complaint.
1. Standard of Review
We review a grant of summary judgment de novo, applying the same legal
standard used by the district court pursuant to Fed. R. Civ. P. 56(c). On summary
judgment, issues concerning all other elements of the claim become immaterial if
the plaintiff does not come forward with sufficient evidence on any essential
1
Mr. Montgomery also dedicates a section of his brief to his ADA claims
and to various defamation and third party interference claims. Because these
claims were raised in Mr. Montgomery’s amended complaint, which we hold was
properly rejected by the district court, we do not address them here.
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element of the cause of action. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998).
We also engage in de novo review of the district court’s grant of a F ED . R.
C IV . P. 12(b)(6) motion to dismiss, and apply the same standard as the district
court. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th
Cir. 1999). We accept as true “all well-pleaded factual allegations,” viewing them
“in the light most favorable to the nonmoving party.” Id. Such a motion “should
not be granted unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.” Id. (internal
quotation marks omitted).
2. Claims Against the City
a. Pretermination Procedural Due Process
Mr. Montgomery alleges that he possessed a constitutionally-protected
property interest in his employment and that he received an inadequate level of
due process before the City discharged him. The district court rejected this claim,
reasoning that Mr. Montgomery “received [constitutionally adequate] pre-
termination due process through his conversations with [Deputy Chief] Beene and
[Chief] Garrett wherein [he] was informed of his effective termination.” Aplt’s
App. vol. II, at 422. Although it concedes that Mr. Montgomery had a protected
property interest in his employment, the City urges us to adopt the district court’s
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position that he received adequate pretermination process. In addition to Mr.
Montgomery’s conversations with Deputy Chief Beene and Chief Garrett on
August 24, 1998, the City relies upon Mr. Montgomery’s failure to seek a post-
termination hearing pursuant to the grievance procedures set forth in the CBA.
In order to prevail on a § 1983 claim, a plaintiff must establish that the
defendants acted under color of state law and that the defendants’ actions
deprived the plaintiff of some federal right. See Sutton, 173 F.3d at 1237. “To
assess whether an individual was denied procedural due process, courts must
engage in a two-step inquiry: (1) did the individual possess a protected interest
such that the due process protections were applicable; and, if so, then (2) was the
individual afforded an appropriate level of process.” Watson v. Univ. of Utah
Med. Ctr., 75 F.3d 569, 577 (10th Cir. 1996) (internal quotation marks omitted).
Here, there is no dispute that the City acted under color of state law and
that Mr. Montgomery possessed a protected property interest in his employment.
Mr. Montgomery’s pretermination procedural due process claim thus turns on the
appropriate level of process to which he was entitled.
As a general rule, the Due Process Clause requires “some kind of a hearing
prior to the discharge of an employee who has a constitutionally protected
property interest in his employment.” Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 542 (1985) (internal quotation marks omitted). The purpose of the
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pretermination hearing is to serve as “a determination of whether there are
reasonable grounds to believe that the charges against the employee are true and
support the proposed action.” Id. at 545-46. Thus, “[t]he pretermination
‘hearing,’ though necessary, need not be elaborate.” Id. at 545.
In particular, a pretermination hearing requires: (1) “oral or written notice
[to the employee] of the charges against him; (2) “an explanation of the
employer’s evidence and [3] an opportunity [for the employee] to present his side
of the story.” Id. at 546; see also Langley v. Adams County, 987 F.2d 1473, 1480
(10th Cir. 1993) (“Due process requires that plaintiff have had an opportunity to
be heard at a meaningful time and in a meaningful manner before termination. . . .
‘This requirement includes three elements: 1) an impartial tribunal; 2) notice of
charges given a reasonable time before the hearing; and 3) a pretermination
hearing, except in emergency situations.’”) (quoting Patrick v. Miller, 953 F.2d
1240, 1244 (10th Cir. 1992)).
In the instant case, the record here does not establish that Mr.
Montgomery’s August 24, 1998 telephone conversations with Deputy Chief Beene
and Chief Garrett provided him with an adequate pretermination hearing under
Loudermill. Viewed in the light most favorable to Mr. Montgomery, the evidence
before us indicates that Mr. Montgomery had already been terminated when he
talked to Deputy Chief Beene and Chief Garrett on that day. In particular, when
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asked by Mr. Montgomery about the status of his job, Deputy Chief Beene told
him that “they’re not going to let you come back.” Aple’s Supp. App. at 157.
Chief Garrett stated that Mr. Montgomery’s rank “had been done away with” and
that he “was not going to be able to return to work.” Id. at
158.
The written notice of Mr. Montgomery’s termination provides further
support for this view. As we have noted, the written notice is dated September
28, 1998, but describes the effective date of termination as August 15, 1998.
Moreover, in its summary judgment brief, the City itself contends that “on August
15, 1998 [Mr]. Montgomery was terminated from his employment.” Aplt’s App.
vol. II, at 435 (emphasis added).
In rejecting Mr. Montgomery’s pretermination due process claim, the
district court appears not to have fully considered the timing of the required
hearing. The court stated that Mr. Montgomery “received pre-termination due
process through his conversations with [Deputy Chief] Beene and [Chief Garrett]
wherein [Mr. Montgomery] was informed of his effective termination.” Id. at 422
(emphasis added). The court then cited Loudermill for the proposition that “[a]
terminated employee with a protected interest must receive notice of an adverse
employment action taken against him.” Id. However, Loudermill requires the
employer to provide–before the termination–notice of the charges, a summary of
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the employer’s evidence, and an opportunity to respond. See Hulen v. Yates, 322
F.3d 1229, 1247 (10th Cir. 2003) (stating that, in Loudermill, “the Court held that
constitutional due process required the school board to provide a hearing before
terminating a tenured school employee) (emphasis added); Powell v. Mikulecky,
891 F.2d 1454, 1458 (10th Cir. 1989) (“[T]he Loudermill Court held that a
‘hearing’ was necessary prior to termination of a public employee.”) (emphasis
added).
Moreover, there is no indication in the record that the conversations with
Deputy Chief Beene and Chief Garrett satisfied the other requirements of
pretermination hearings. Apparently Mr. Montgomery did not receive either a
summary of the City’s reasons for terminating his employment or an opportunity
to respond to the City’s charges.
Finally, even though, under the CBA there were post-termination grievance
proceedings available to Mr. Montgomery, we are not convinced by the City’s
argument that “‘[Mr. Montgomery’s] decision to forego [post-termination
remedies] does not require that the federal court provide an alternative remedy.’”
City’s Response Br. at 14 (quoting Tansy v. Mondragon, No. 94-2152, 1995 WL
216926, at **4 (10th Cir. Apr. 12, 1995) (unpublished disposition)). 2 Post-
2
We remind counsel for the City that under our rules, citation to
unpublished order and judgments is “disfavored.” 10th Cir. R. 36.3. In its brief,
the City neither noted that the order and judgment was unpublished, nor attached
(continued...)
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termination remedies, no matter how elaborate, do not relieve the employer of
providing the minimal pre-termination procedural protections noted in Loudermill.
See West v. Grand County, 967 F.2d 362, 368 (10th Cir. 1992) (“A brief
face-to-face meeting with a supervisor provides sufficient notice and opportunity
to respond to satisfy the pretermination due process requirements of
Loudermill.”); Seibert v. State of Okla., ex rel. Univ. of Okla. Health Scis. Ctr.,
867 F.2d 591, 596 (10th Cir. 1989) (noting that the plaintiff did not waive his
right to a pre-termination hearing by failing to pursue post-termination remedies).
We therefore conclude that the City is not entitled to summary judgment on
Mr. Montgomery’s pretermination due process claim and that the claim must be
remanded to the district court for further proceedings. Because a remand is
required, we note briefly the type of damages generally available for a violation
of procedural due process.
Generally, damages for procedural due process violations may include
damages arising out of the termination of employment “if there is a causal
connection between the termination and the failure to provide a hearing.” Alston
v. King, 231 F.3d 383, 386 (7th Cir. 2000) (explaining Carey v. Piphus 435 U.S.
247 (1978)). However, if the employer can establish that “the employee would
have been terminated even if a proper hearing had been given, the terminated
2
(...continued)
a copy of the order and judgment, both in violation of 10 TH C IR . R. 36.3(C).
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employee cannot receive damages stemming from the termination in an action for
a procedural due process violation.” Id.; see McClure v. Indep. Sch. Dist. No. 16,
228 F.3d 1205, 1213 (10th Cir. 2000) (“The [defendant] must establish, by a
preponderance of the evidence, that it would have reached the same termination
decision in any event. Unless the defendant carries that burden, the plaintiff is
entitled to recover damages for the injury caused by the defendant’s adverse
action.”); Dill v. City of Edmond, 155 F.3d 1193, 1209 (10th Cir. 1998) (plaintiff
entitled to compensatory damages for adverse action when defendant failed to
establish adverse action would have occurred even if due process had been
provided)). However, even if an employer satisfies this burden, “the employee
may still obtain damages for emotional distress attributable to the deficiencies in
procedure if the employee can convince the trier of fact that the distress is
attributable to the denial of procedural due process itself rather than to the
justified termination.” Alston, 231 F.3d at 386.
From this record, it appears that there is evidence that the City would have
terminated Mr. Montgomery’s employment even if it had provided him with the
required pretermination hearing. However, we leave the resolution of that and
other questions related to Mr. Montgomery’s pretermination due process claim to
the district court.
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b. Post-deprivation Process
We must also examine the adequacy of the post-deprivation process that
Mr. Montgomery received. See Benavidez v. Albuquerque, 101 F.3d 620, 627
(10th Cir. 1996) (“Because it is followed by post-termination proceedings, the
pretermination hearing is not meant to resolve definitively the propriety of the
discharge, but only to determine whether there are reasonable grounds to believe
the charges are true and the action is correct.”). “When the pretermination
process offers little or no opportunity for the employee to present his side of the
case, the procedures in the post-termination hearing become much more
important.” Id. at 626.
Turning to the adequacy of the post-termination procedures then, we
recognize that pursuant to Benavidez, “it may be improper to place the burden of
proof on the employee when the employee has been offered ‘little or no
opportunity . . . to present his side of the case’” in the pre-termination process.
Hulen v. Yates, 322 F.3d 1229, 1249 (10th Cir. 2003) (quoting Benavidez, 101
F.3d at 626). Such is the case here. The burden rests with the City to establish
the adequacy of the post-termination procedures.
We hold that the City’s post-termination procedures were adequate. The
CBA provided Mr. Montgomery with the opportunity to challenge his termination
in a more detailed fashion. We have held that a CBA’s grievance procedure can
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provide a plaintiff with “an adequate post-deprivation remedy for Defendants’
violation of the CBA.” Hennigh v. City of Shawnee, 155 F.3d 1249, 1256 (10th
Cir. 1998). Here, there is no doubt that Mr. Montgomery forewent any
opportunity for a post-termination proceeding under the collective bargaining
agreement. Therefore, we conclude that Mr. Montgomery was provided with
adequate post-termination procedures.
c. Retaliation and Harassment as a Result of the Exercise
of Freedom of Speech
Mr. Montgomery appears to challenge the district court’s grant of summary
judgment to the City on his claims regarding “retaliation, hostile work
environment, and First Amendment violations.” Aplt’s Br. at 40. Other than
generic references to a Second Circuit case, counsel provides no caselaw
supporting these arguments.
Mr. Montgomery identifies his protected speech as (1) co-authoring the
May 11, 1997 letter to the editor of Ardmore’s local newspaper voicing support of
Chief Snelson; (2) being a member of the FOP; and (3) abstaining from the vote
of no-confidence. The letter encouraged readers to look at the “many changes and
improvements” Chief Snelson had accomplished during his tenure. Aplt’s App.
vol. II, at 531. The letter encouraged the public to “allow[] [the chief] . . . to tell
his side of the story [so that] we will have a complete picture upon which to make
an informed decision.” Id.
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To evaluate Mr. Montgomery’s claim, we employ the four-part balancing
test for determining whether a public employer’s actions impermissibly infringe
on free speech rights of employees as set out in Pickering v. Bd. of Education,
391 U.S. 563 (1968). We balance the public employee’s interest in commenting
upon matters of public concern against the government’s interest in “promoting
the efficiency of the public services it performs through its employees.” Id. at
568.
First, the court must decide whether the speech at issue touches on a
matter of public concern. If it does, the court must balance the interest
of the employee in making the statement against the employer’s interest
in promoting the efficiency of the public services it performs through
its employees. Third, if the preceding prerequisites are met, the speech
is protected, and plaintiff must show h[is] expression was a motivating
factor in the detrimental employment decision. Finally, if the plaintiff
sustains this burden, the employer can still prevail if it shows by a
preponderance of the evidence that it would have made the same
decision regardless of the protected speech.
Schalk v. Gallemore, 906 F.2d 491, 494-95 (10th Cir. 1990) (internal quotation
marks and citations omitted).
Thus, “[s]peech that pertains to a public agency’s discharging its
governmental responsibilities ordinarily will be regarded as speech on a matter of
public concern.” David v. City and County of Denver, 101 F.3d 1344, 1355 (10th
Cir. 1996) (internal quotation marks omitted); see Connick v. Myers, 461 U.S.
138, 146 (1983) (holding that speech on a matter of public concern is that which
may be “fairly considered as relating to any matter of political, social, or other
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concern to the community”); Wilson v. City of Littleton, 732 F.2d 765, 768 (10th
Cir. 1984) (holding “the speech must ‘sufficiently inform the issue as to be
helpful to the public in evaluating the conduct of [the] government”’). In
contrast, “speech relating to internal personnel disputes and working conditions
ordinarily will not be viewed as addressing matters of public concern.” Id.
Here, by its voicing support of Chief Snelson during a time of public
scrutiny and a criminal investigation, the letter to the editor addresses a matter of
public concern. However, we agree with the district court that “the record is
devoid of . . . a connection,” Aplt’s App. vol. II, at 773, between the publication
of the letter and termination of Mr. Montgomery’s employment or any other
adverse employment action. In particular, we note that Mr. Montgomery’s
employment was terminated more than a year after the letter was published, and
Mr. Montgomery has offered no evidence that the reasons stated for the
termination–the expiration of his long-term disability benefits–was pretextual.
Similarly, we agree with the district court that Mr. Montgomery has
presented no evidence that the City took action against him because of his
membership in the FOP. Finally, Mr. Montgomery cannot show that the City took
an adverse employment action against him because of not voting in the no-
confidence vote.
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Accordingly, we agree with the district court that the City is entitled to
summary judgment on this First Amendment retaliation claim.
d. Freedom of Association Claim
Mr. Montgomery’s next claim presumably concerns the City’s acts
regarding his association with the FOP. Mr. Montgomery presents no evidence
that his ability to engage in FOP activity was curtailed, and we agree with the
district court that we are “unable to find that [Mr. Montgomery’s] right of
association was restricted through the City’s actions.” Aplt’s App. vol. II, at 775.
e. Civil Conspiracy Claim
Mr. Montgomery also raises a civil conspiracy claim against the City and
the FOP. He claims that together they decided to “publicly discredit, harass,
annoy, cause harm, deny benefits[,] and terminate his employment.” Aplt’s Br. at
5. We agree with the district court that Mr. Montgomery has failed to state a
claim for civil conspiracy under § 1983 because he did not “allege specific facts
showing an agreement and concerted action amongst the defendants.” Tonkovich
v. Kansas Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998). Furthermore, he
“d[id] not identify any of the alleged participants in the alleged conspiracy or the
manner in which the conspiracy operated.” Aplt’s App. vol. II, at 777. Mr.
Montgomery merely alleged many unlawful acts by various defendants and stated,
without any specific facts evincing an agreement among the various defendants,
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that they conspired against him. The district court appropriately granted summary
judgment on the civil conspiracy claim.
f. Negligence Claim
The law in Oklahoma requires that an employer provide a reasonably safe
place in which to work. McMillin v. Barton-Robison Convoy Co., 78 P.2d 789,
790 (Okla. 1938). To state a cause of action in negligence against an employer an
employee must allege: (1) a duty by the employer to protect the employee from
the danger; (2) a failure by the employer to perform that duty; and (3) an injury
which is proximately caused by that failure. Sears, Roebuck & Co. v. Skeen, 248
P.2d 582, 585 (Okla. 1952). Here, Mr. Montgomery alleges that the City was
negligent in its hiring, retention, training, and control of the officers it employs.
The district court rejected this claim by noting that the only physical harm
was the ransacking of the office. This may well have caused disruption, and
created an upsetting atmosphere. However, we agree that Mr. Montgomery has
presented no evidence that “the City was negligent in the manner in which its
employees acted toward [him], in the investigation, discipline, hiring, retention or
promotion of supervisory personnel and in its actions toward [him].” Aplt’s App.
vol. II, at 424.
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3. Claims Against the FOP
Mr. Montgomery appears to have raised a breach of the duty of
representation claim against the FOP, asserting that the Union (1) failed to ensure
that Mr. Montgomery received due process, (2) failed to ensure his safety, (3)
failed to uphold the CBA’s covenant of good faith and fair dealing through its
failure to take any corrective action in the aftermath of the continued violation of
Mr. Montgomery’s constitutional rights; and, (4) through the above actions
intentionally caused severe emotional distress through its failure to uphold its
duties under the CBA.
The district court rejected Mr. Montgomery’s claims finding that (a) the
claims allege the breach of the duty of fair representation and are time-barred; (b)
the FOP is not a state actor acting under the color of law; and (c) Mr.
Montgomery’s state law claims fail for the same reasons they failed against the
City.
a. Breach of the Duty of Fair Representation
We agree with the district court that the bulk of Mr. Montgomery’s claims
allege the breach of the duty of fair representation. “Where a plaintiff’s
allegations fall within the scope of the duty of fair representation, federal labor
law governs and ordinarily preempts any state-law claims based on those
allegations.” Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149, 1158 (10th
Cir. 2000). Accordingly, these claims are preempted by federal labor law.
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In support of his argument that his claims are not preempted by § 301 of the
Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a), Mr. Montgomery
relies on Marshall v. TRW, Inc., 900 F.2d 1517 (10th Cir. 1990). In Marshall, we
held that plaintiff’s state tort claim for retaliatory discharge for filing a workers
compensation claim was not preempted by the LMRA, although the employer
argued that the plaintiff was terminated pursuant to a “just cause” clause under
the collective bargaining agreement. The plaintiff responded that the employer’s
reliance on the “just cause” provision was pretextual. We held that a court could
determine whether the plaintiff was terminated in retaliation for a workers
compensation filing without interpreting the “just cause” provision. Id. at 1521.
Because the plaintiff’s claim turned on whether the employer’s motivation for
terminating the plaintiff was the rule violation or retaliation for engaging in
protected activity, we concluded that the claim was not preempted by the LMRA,
Mr. Montgomery suggests that because he does not reference the CBA and
because no interpretation of the CBA is needed, that the CBA is not at issue. He
maintains that he has challenged the FOP’s conduct and motivation, but not the
CBA. We disagree with Mr. Montgomery’s narrow characterization of his claims.
Unlike the claims of the plaintiff in Marshall, Mr. Montgomery’s claims require
us to consider the provisions of the CBA, particularly its covenant of good faith
and fair dealing. In order to assess any arbitrary or discriminatory treatment by
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the FOP, we must consider the terms of the CBA. Mr. Montgomery’s claims are
thus governed by the LMRA.
Under the LMRA, “a union breaches its duty [of fair representation,] when
its conduct is arbitrary, discriminatory, or in bad faith.” Int’l Bhd. of Elec.
Workers v. Foust, 442 U.S. 42, 47 (1979) (internal quotation marks omitted). Mr.
Montgomery cannot advance such a claim without demonstrating that he filed his
claim within six months of the alleged breach, see Hagerman v. United Transp.
Union, 281 F.3d 1189, 1197 (10th Cir. 2002) (“A six-month statute of limitations
applies to duty of fair representation claims.”), and that he sought the FOP’s aid.
See Volkman v. United Trans. Union, 73 F.3d 1047, 1054 (10th Cir. 1996).
As to the timeliness of Mr. Montgomery’s action as noted above, Chief
Garrett informed Mr. Montgomery that his position had been “done away with”
during the August 24, 1998 telephone call. However, the Personnel Action Form
documenting this action was dated September 28, 1998, with an effective date of
August 15, 1998. Aple’s Supp. App. at 157. Mr. Montgomery filed suit on
March 22, 1999. Viewing the facts and inferences in the light most favorable to
Mr. Montgomery, the September 28, 1998 date suggests that Mr. Montgomery’s
suit was timely.
Nevertheless, there is another obstacle to Mr. Montgomery’s fair
representation claim. “An employee can bring suit under § 301 of the LMRA
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only if he or she has exhausted the contractual remedies provided in the collective
bargaining agreements.” Aguinaga v. United Food & Comm’l Workers Int’l
Union, 993 F.2d 1463, 1471 (10th Cir. 1993). Although Mr. Montgomery
contends that he left one telephone message for the FOP’s President, he has
presented no colorable evidence that he exhausted the CBA’s grievance
procedures.
Although there is an exception to the exhaustion requirement when an
employee proves “that the union breached its duty of fair representation in its
response to an employer’s contract breach,” id., Mr. Montgomery has presented
no evidence in support of this proposition. His conclusory assertions that the
FOP was colluding with the City to deny him his constitutionally protected rights
are not sufficient to establish the exception to the exhaustion requirement.
Thus, the district court properly granted summary judgment on these
claims.
b. The FOP is not a State Actor in this Case
To the extent Mr. Montgomery attempts to advance his claims under §
1983, he must demonstrate that the FOP is acting “under color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988). Labor unions such as the FOP are
generally not state actors, but Mr. Montgomery argues that the FOP conspired
with the City to take an adverse employment action against him. A private actor
acts under color of state law when the private actor “is a willful participant in
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joint activity with the State or its agents.” Adickes v. S.H. Kress & Co., 398 U.S.
144, 152 (1970).
We agree with the FOP that Mr. Montgomery’s conclusory allegations are
insufficient to state a § 1983 claim. There is no evidence that the FOP acted in
concert with the City. As established above, there is no evidence the City
committed an unconstitutional act, nor are there any specific factual allegations
suggesting that FOP conspired with the City. Cf. Hughes v. Patrolmen’s
Benevolent Ass’n of the City of N.Y., Inc., 850 F.2d 876, 880-81 (2d Cir. 1988)
(holding that complaint alleged sufficient facts to support conclusion that
private-actor PBA had acted under color of state law, where complaint alleged,
inter alia, that PBA had hired private investigators and placed plaintiff under
surveillance with knowledge and consent of a state-actor, the New York City
Police Department). Indeed, we note, as did the district court, that Mr.
Montgomery’s conclusory allegations of conspiracy ring especially hollow in light
of the adversarial relationship between the City and the FOP.
c. Intentional Infliction of Emotional Distress
Mr. Montgomery suggests that the FOP’s actions amounted to intentional
infliction of emotional distress. “Under Oklahoma law, a claim for intentional
infliction of emotional distress requires a showing of conduct
so outrageous in character, and so extreme in degree, as to
be beyond all possible bounds of decency, and to be
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regarded as atrocious and utterly intolerable in a civilized
community. Generally, the case is one in which the
recitation of the facts to an average member of the
community would arouse his resentment against the actor,
and lead him to exclaim, “Outrageous!”
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1218 (10th Cir. 2003) (quoting Frank
v. Mayberry, 985 P.2d 773, 776 (Okla. 1999) (quoting Restatement (Second) of
Torts § 46, cmt. d)). We agree with the district court that “[n]o circumstance
alleged by Plaintiff in this action remotely approaches the extreme conduct
required to prevail on an intentional infliction claim.” Rec. vol. II, at 424.
4. Claims Against District Attorney Henry
The district court dismissed all of Mr. Montgomery’s federal and state law
claims against Gary Henry in his official and individual capacity. On appeal, Mr.
Montgomery appears to only challenge the dismissal of the state law defamation
claim.
Mr. Montgomery’s state law claim appears to stem from Mr. Henry’s
statements to the press that Mr. Montgomery was “withholding information in a
criminal investigation” and that his “refusal to interview could be viewed as an
attempt to obstruct this investigation.” Aplt’s App. vol. II, at 532-533. Under
Oklahoma law, public officials such as Mr. Henry are immune from tort liability
for actions taken within the scope of their employment. Mitchell v. City of
Moore, Oklahoma, 218 F.3d 1190, 1201 (10th Cir. 2000) (citing Okla. Stat. Ann.
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§ 153). Here, the acts complained of were a part of the district attorney’s
investigation and an intrinsic part of his prosecutorial function. We hold that
Mr. Henry’s statements to the press were within the scope of his employment and
that Mr. Henry is thus immune from the state law tort claims. Accordingly, the
district court properly dismissed the state law claims against Mr. Henry.
5. Imposition of Sanctions Against Mr. Montgomery
Mr. Montgomery next challenges the district court’s imposition of sanctions
for his counsel’s allegedly inadvertent attempt to file an amended complaint that
differed from the one attached to the motion for leave to file it.
“We review for abuse of discretion all aspects of a trial court’s imposition
of sanctions for rules violations.” Butler v. Biocore Med. Techs., Inc., 348 F.3d
1163, 1169 (10th Cir. 2003). Rule 11 applies to the presentation of “pleading[s],
written motion[s], or other paper[s]” to the court. Fed. R. Civ. P. 11(b). Mr.
Montgomery’s counsel suggests that his unintentional filing of a draft amended
complaint was a “‘mistake[]’” that could have happened “in any office.” Aplt’s
Br. at 59.
Apparently, the district court, in an order dated Feb. 27, 2001, found that
Mr. Montgomery’s and/or his counsel “was deliberately misleading the Court and
Defendants as to the intended amendment. . . . Plaintiff’s bad faith in the manner
in which he sought the amendment precludes permitting the Amended Complaint
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to stand.” Aple Henry’s Br. at 27 (quoting Order, dated Feb. 27, 2001). The
district court received for filing an amended complaint that differed materially
from the one originally attached to the motion to amend. The district court did
not abuse its discretion when it struck the amended complaint and made a finding
of bad faith.
In addition, we note with particular disapproval that the parties failed to
attach the district court’s February 27, 2001 order to the briefs submitted in this
court. See 10 TH C IR . R. 28.2(A) (requiring appellant’s brief to include, among
other things, “copies of all pertinent written findings, conclusions, opinions, or
orders of a district judge” even though they are also included in the appendix);
see also 10th Cir. R. 28.2(B) (requiring appellee’s brief to include “all the rulings
required by (A),” in the event that appellant’s brief fails to include them). Even
more distressing is the appellant’s counsel’s apparent failure to include the order
in the appendix in violation of 10th Cir. R. 10.3(C), or, at the very least, to cite
the record so that we might review the order.
C. The FOP’s Belated Claim
The FOP claims the district court abused its discretion when it refused to
award attorneys’ fees as a sanction against Mr. Montgomery for filing
unnecessary litigation. The FOP makes this argument under Fed. R. App. P.
4(a)(3), and acknowledges that it has not filed a cross-appeal in this case.
Fed. R. App. P. 4(a)(3) provides:
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Rule 4. Appeal as of Right--When Taken
(3) Multiple Appeals. If one party timely files a notice of appeal, any
other party may file a notice of appeal within 14 days after the date
when the first notice was filed, or within the time otherwise prescribed
by this Rule 4(a), whichever period ends later.
Because the FOP alleges it was not notified it would have to file an answer in this
case until September 30, 2003, it somehow claims that Fed. R. App. P. 4 did not
affect its status until then. See FOP’s Br. at 15 n.1.
We have noted above that the certificate of service attached to the Notice
of Appeal included all of the defendants. In addition, on March 22, 2002, the
FOP filed a response to Mr. Montgomery’s motion to add parties on appeal. We
declared the motion to add parties moot and ordered the parties to file response
briefs on September 30, 2003. The FOP was clearly on notice of the appeal.
Because the FOP failed to file a cross-appeal, we do not consider its
request for this Court to decide whether Mr. Montgomery should have been
awarded attorneys’ fees. It is well-recognized that an appellee who has failed to
file a cross-appeal cannot “attack the decree with a view either to enlarging his
own rights thereunder or of lessening the rights of his adversary.” Burgo v. Gen.
Dynamics Corp., 122 F.3d 140, 145 (2d Cir. 1997) (quoting Morley Constr. Co. v.
Maryland Cas. Co., 300 U.S. 185, 191 (1937) (Cardozo, J.)); see Int’l Ore &
Fertilizer Corp. v. SGS Control Servs., Inc., 38 F.3d 1279, 1286 (2d Cir. 1994)
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(“Although an appellee who has not cross-appealed may urge alternative grounds
for affirmance [of the judgment], it may not seek to enlarge its rights under the
judgment by enlarging the amount of damages or scope of equitable relief.”).
III. CONCLUSION
For the reasons stated above, we VACATE the district court’s grant of
summary judgment on Mr. Montgomery’s pretermination due process claim and
REMAND for further proceedings consistent with this opinion.
As to the remaining claims, we AFFIRM the district court’s grant of
summary judgment to the City and to the FOP; we AFFIRM the grant of Mr.
Henry’s motion to dismiss; we AFFIRM the district court’s sanction of Mr.
Montgomery, and we DISMISS the FOP’s appeal of the denial of its motion for
sanctions.
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