Montgomery v. City of Ardmore

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

-2-
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

-3-
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.

-4-
 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

-5-
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

-6-
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.

-7-
 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

-8-
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

-9-
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

-10-
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

-11-
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.

-12-
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

-13-
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

-14-
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

-15-
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

-16-
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...)

-17-
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).

-18-
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.

-19-
 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

-20-
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.

-21-
 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

-22-
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.

-23-
 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,

-24-
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.

-25-
 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.

-26-
 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

-27-
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

-28-
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

-29-
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

-30-
 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.

-31-
§ 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

-32-
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:

-33-
 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)

-34-
(“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.

-35-