F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 9, 2005
TENTH CIRCUIT
Clerk of Court
MICHAEL THOMAS NARD,
Plaintiff-Appellant,
v. No. 04-6277
CITY OF OKLAHOMA CITY, (D.C. No. 04-CV-66-L)
(W.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE, HARTZ , Circuit Judges, and HERRERA , District Judge. **
After examining the briefs and appellate record, we have determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case
therefore is ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. We generally disfavor the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the terms
and conditions of Tenth Circuit Rule 36.3.
The Honorable Judith C. Herrera, United States District Judge for the District of
**
New Mexico, sitting by designation.
The facts in this case are undisputed. 1 On or about July 5, 2000,
Defendant-Appellee City of Oklahoma City (“Oklahoma City”) and the Fraternal
Order of Police Lodge 123 (“FOP”) entered into a labor agreement governing the
conditions of employment for represented officers of the Oklahoma City Police
Department (“OCPD”). Appellee’s App. at 26-27, 45. The July 5, 2000,
collective bargaining agreement, as well as subsequent collective bargaining
agreements, covered Plaintiff-Appellant Michael Thomas Nard (“Plaintiff”), a
police officer employed by the OCPD. Id. at 26-27, 28.
On November 8, 2000, the Oklahoma County District Attorney’s Office
filed an information charging Plaintiff with twenty counts of obtaining money by
false pretenses. Id. at 27, 83-95. The information alleged that Plaintiff falsely
represented on payroll records the number of hours he actually worked. 2 Id. at 27,
83-90. That same day, Defendant Oklahoma City suspended Plaintiff without
pay. Id. at 27.
On November 14, 2000, Plaintiff’s labor union, the FOP, filed a grievance
with Police Chief M.T. Berry regarding Plaintiff’s suspension without pay. Id.
Under the terms of the July 5, 2000, collective bargaining agreement, the FOP
1
Plaintiff concedes the accuracy of the undisputed facts set forth by
Defendant Oklahoma City in support of its motion for summary judgment.
Appellee’s App. at 206.
2
On October 19, 2001, the district attorney’s office dismissed the
information filed against Plaintiff. Appellee’s App. at 29.
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submitted the grievance to binding arbitration. See id. at 27, 53. On September
24, 2001, an arbitrator upheld the grievance and ordered Defendant Oklahoma
City to reinstate Plaintiff to his position with back pay. Id. at 27-28, 123.
On October 11, 2001, Deputy Police Chief David Shupe notified Plaintiff in
writing that the OCPD was charging Plaintiff with violating police department
policies and rules. Id. at 28-29, 166. The notice contained allegations that on
four occasions Plaintiff violated ten department policies and rules and informed
Plaintiff that he had a right to a pre-determination hearing before the Department
Review Board on October 25, 2001. Id. at 28-29, 166-69. The notice also
indicated that the Department Review Board would issue findings of fact
concerning the alleged violations and submit a recommendation to Chief Berry,
who would make a final decision regarding the charges. Id. at 29, 168.
On October 11, 2001, FOP President Marty Stupka notified Deputy Chief
Shupe that Plaintiff had decided to appear before the Department Review Board
for a hearing. Id. at 29. Although the record is unclear, it appears that the
October 25, 2001, hearing was continued to November 21, 2001. On November
6, 2001, Deputy Chief Shupe sent Plaintiff a revised notice detailing twenty-two
instances of alleged violations of the same ten department policies and rules. Id.
at 29, 172-77.
The Department Review Board Procedural Guidelines attached to the
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November 6, 2001, notice specified that:
The employee will be allowed to be present during the
presentation of the department’s evidence and be
allowed to ask questions of the witness and/or to
respond to any evidence presented.
The employee will be allowed to present witnesses,
documentation and other relevant evidence in his own
behalf.
* * *
The employee may appeal any action taken through
either the Oklahoma City Personnel Policy Grievance
Procedure, Article 1300, or the FOP Collective
Bargaining Agreement, Article VIII.
Id. at 178.
FOP President Stupka represented Plaintiff at the hearing before the
Department Review Board on November 21, 2001. Id. at 29. The Department
Review Board gave Plaintiff the opportunity to examine the OCPD’s witnesses
and call his own witnesses. Id. at 29, 179. At the conclusion of the hearing, the
Department Review Board voted to sustain eleven of the twenty-two allegations
that Plaintiff had submitted false time cards. Id. at 29, 183-84. The Board further
determined that Plaintiff’s conduct violated nine police department policies and
rules. See id. at 29, 184. The Board recommended that Chief Berry give Plaintiff
a Class III reprimand and demote him from Lieutenant to Sergeant. Id. at 29,
185.
On January 7, 2002, Chief Berry concurred with the Department Review
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Board’s recommendation, and, on January 8, 2002, advised Plaintiff of his
decision. Id. at 29, 187. The FOP did not contest the demotion through the
collective bargaining agreement grievance procedure. Id. at 29. Rather, on
January 6, 2004, Plaintiff filed this action in state court.
Defendant Oklahoma City removed the case to the Western District of
Oklahoma on January 22, 2004, and filed a motion to dismiss, or, in the
alternative, motion for summary judgment. The district court granted the motion,
and Plaintiff appealed. At issue on appeal is the question whether the November
21, 2001, hearing that resulted in Plaintiff’s demotion and reduction in pay was
sufficient to meet the procedural due process standards of the Fourteenth
Amendment. 3 We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
3
Plaintiff also raises the questions whether Defendant Oklahoma City’s
“informal pattern and practice establish that the behavior for which Plaintiff was
sanctioned by the city had been legitimated, accepted, tolerated and/or permitted,”
Opening Br. at 2; Reply Br. at 5, and whether Defendant Oklahoma City
selectively disciplined Plaintiff for behavior it ignored in other similarly situated
employees, id. at 4. Although Plaintiff stated in his summary judgment
opposition that Defendant Oklahoma City treated Plaintiff differently from
similarly situated employees, Appellee’s App. at 205, 206, 207, he did not alert
the district court that these allegations were intended for consideration as distinct
claims for relief, rather than as supporting argument for the claims he had
articulated, see id. at 209-12. Accordingly, we do not consider these claims on
appeal. See S. Hospitality, Inc. v. Zurich Am. Ins. Co., 393 F.3d 1137, 1142 (10th
Cir. 2004) (appellate court reviews claims fairly raised and decided, but does not
consider on appeal any theory not raised in district court); Wilburn v. Mid-South
Health Dev., Inc., 343 F.3d 1274, 1280 (10th Cir. 2003) (appellate court will not
address issues not presented to district court); Ambus v. Granite Bd. of Educ., 975
F.2d 1555, 1558 n.1 (10th Cir. 1992) (appellate court will not consider issues that
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Our standard of review is well established. We review de novo a district
court’s decision on a motion to dismiss for failure to state a claim or a motion for
summary judgment, applying the same legal standards used by the district court.
Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995); Swoboda v.
Dubach, 992 F.2d 286, 289 (10th Cir. 1993). A court may dismiss a cause of
action under Rule 12(b)(6) for failure to state a claim only if it appears beyond a
doubt that a plaintiff can prove no set of facts in support of the claim that would
entitle him or her to relief. Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811
(1993) (citation omitted) . Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.
are raised on appeal but not adequately addressed). Plaintiff, in his appellate
briefing, also failed to provide any argument or legal authority with respect to
these allegations. We therefore do not review the claims for this reason as well.
See Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 800 n.10 (10th Cir. 2001)
(holding appellate court need not consider argument where party has failed to
support it “with any authority, legal or otherwise”) (citations omitted). We also
note that in the course of his appellate briefing, Plaintiff abandoned his claims
related to his November 8, 2000, suspension as well as his substantive due
process, Unfair Labor Practices, and state tort claims. See Reply Br. at 3
(acknowledging that the claims related to the November 8, 2000, suspension are
time barred); id. at 4-5 (“conced[ing] that the facts which underline his due
process claims as to loss of liberty and property do not rise to the level of [a]
‘substantive due process’ violation” and indicating that a substantive due process
claim is not before the court on appeal); Opening Br. at 3 (declining to appeal the
dismissal of the Unfair Labor Practices and state tort claims).
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P. 56(c).
Plaintiff claims that Defendant Oklahoma City deprived him of his property
and liberty without due process of law in violation of the Fourteenth Amendment
and that he therefore is entitled to relief under 42 U.S.C. § 1983. Section 1983
provides civil redress for deprivation of constitutional rights by persons acting
under color of state law. 42 U.S.C. § 1983. S ection 1983 creates no substantive
rights, but rather only a remedy against those who, acting under color of law,
violate rights secured by federal statutory or constitutional law. E.g., Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979); Reynolds v. Sch. Dist. No. 1, 69 F.3d
1523, 1536 (10th Cir. 1995).
The Due Process Clause of the Fourteenth Amendment provides that no
state may “deprive any person of life, liberty, or property without due process of
law.” U.S. Const. amend. XIV, § 1. “To assess whether an individual was denied
procedural due process, district 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) (citations and internal quotation marks omitted); Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 541 (1985).
In order to establish a procedural due process claim, Plaintiff first must
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demonstrate that he possessed a property or liberty interest. Id.; Farthing v. City
of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). The Fourteenth Amendment
does not create property or liberty interests. Rather, Plaintiff’s right, if any, must
arise out of an independent source, such as state law. Bd. of Regents v. Roth, 408
U.S. 564, 577 (1972).
The parties do not dispute that Plaintiff has a property interest in his rank
and that the OCPD could not demote him without cause. Answer Br. at 16; see
Hennigh v. City of Shawnee, 155 F.3d 1249, 1254 (10th Cir. 1998). Defendant
Oklahoma City also does not dispute that a deprivation occurred when the OCPD
demoted Plaintiff. The remaining question, then, is whether Defendant Oklahoma
City provided Plaintiff with an appropriate level of process under the Fourteenth
Amendment before it deprived him of his property interest in his rank. See
Loudermill, 470 U.S. at 541.
In Cleveland Board of Education v. Loudermill, the Supreme Court held
that “[a]n essential principle of due process is that a deprivation of life, liberty, or
property ‘be preceded by notice and opportunity for hearing appropriate to the
nature of the case.’” Id. at 542 (quoting Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 313 (1950)). In the context of public employment, this
“principle requires ‘some kind of a hearing’ prior to the discharge of an employee
who has a constitutionally protected property interest in his [or her] employment.”
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Id. (quoting Roth, 408 U.S. at 569-70; Perry v. Sindermann, 408 U.S. 593, 599
(1972)). A full evidentiary hearing is not required prior to a determination. Id. at
545. Rather, “[t]he tenured public employee is entitled to oral or written notice of
the charges against him, an explanation of the employer’s evidence, and an
opportunity to present his side of the story.” Id. at 546 (citations omitted). “The
fundamental requirement of due process is the opportunity to be heard ‘at a
meaningful time and in an meaningful manner.’” Mathews v. Eldridge, 424 U.S.
319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965))
(additional citations omitted). This requirement includes three elements: (1) an
impartial tribunal; (2) notice of the charges within a reasonable time before the
hearing; and (3) absent emergency circumstances, a pre-determination hearing.
Miller v. City of Mission, 705 F.2d 368, 372 (10th Cir. 1983). While not
necessary in every case, “procedural due process often requires confrontation and
cross-examination of those whose word deprives a person of his [or her]
livelihood.” Willner v. Comm. on Character, 373 U.S. 96, 103 (1963).
The pre-determination due process requirements set forth in Loudermill rest
partially on the availability of a full post-determination hearing under applicable
state law. Loudermill, 470 U.S. at 546; Langley v. Adams County, Colo., 987
F.2d 1473, 1480 (10th Cir. 1993) (“Under Loudermill, the adequacy of
pre-termination procedures must be examined in light of available
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post-termination procedures.”); Calhoun v. Gaines, 982 F.2d 1470, 1476 (10th
Cir. 1992) (holding that “Loudermill established that some form of pretermination
hearing, plus a full-blown adversarial post-termination hearing,” are required
when a property interest in continued employment is at stake). “A ‘full
post-termination hearing’ is understood to include the right to representation by
an attorney and the right to cross-examine adverse witnesses.” Workman v.
Jordan, 32 F.3d 475, 480 (10th Cir. 1994) (citations omitted). We have held that
the grievance procedure provided by a collective bargaining agreement can satisfy
a plaintiff’s entitlement to post-deprivation due process. Hennigh, 155 F.3d at
1256 (noting that the Second, Third, Seventh, and Ninth Circuits have held the
same) (citations omitted); Montgomery v. City of Ardmore, 365 F.3d 926, 938
(10th Cir. 2004).
Here, the district court held, and we agree, that Plaintiff could not, as a
matter of law, establish a procedural due process violation. 4 The undisputed facts
demonstrate that Defendant Oklahoma City provided Plaintiff with all of the
procedure he was due under the Fourteenth Amendment prior to demoting him.
4
In dismissing Plaintiff’s procedural due process claim based upon the
deprivation of his property interest in his rank, the district court did not specify
whether it was dismissing for failure to state of claim under Rule 12(b)(6) or for
failure to demonstrate that no genuine facts are in dispute and that Defendant is
not entitled to judgment in its favor as a matter of law under Rule 56(c). Because
the district court considered facts outside of the complaint, however, it is clear
that the district court dismissed the claim under Rule 56(c) and not Rule 12(b)(6).
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Specifically, it is undisputed that the OCPD provided Plaintiff with a written
notice and a revised written notice detailing the charges against him and
informing him of his right to a hearing. The OCPD provided Plaintiff with the
initial notice five weeks, and the revised notice two weeks, prior to the November
21, 2001, hearing. Both notices set forth the conduct with which the OCPD was
charging Plaintiff and the policies and rules the conduct allegedly violated. The
OCPD provided Plaintiff with a pre-determination hearing, at which Plaintiff had
an opportunity to respond to the charges and evidence against him, ask questions
of the OCPD’s witnesses, call his own witnesses, and present his own evidence.
There is no evidence in the record that the Department Review Board was partial.
The OCPD also informed Plaintiff of his right to appeal any action taken against
him through either the Oklahoma City personnel policy grievance procedure or
the FOP collective bargaining agreement. Based upon these undisputed facts, the
district court properly concluded that, as a matter of law, the process the OCPD
gave to Plaintiff satisfied the due process requirements of the Fourteenth
Amendment.
Plaintiff’s argument to the contrary does not have merit. Plaintiff claims
that “the opportunity . . . to avail himself [of] other potential post-harm remedies .
. . fails to remedy the harm suffered by Plaintiff of the lack of . . . meaningful
consideration [for] his property and liberty interest[s] . . . when [the deprivation]
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occurred.” Opening Br. at 13-14. Plaintiff, however, does not explain how the
OCPD failed to provide him with “meaningful consideration” prior to its decision
to demote him. To the contrary, the undisputed facts demonstrate that the OCPD
provided Plaintiff with adequate notice and an opportunity to be heard at a pre-
determination hearing.
Plaintiff’s procedural due process claim based upon the deprivation of his
liberty interest in his good name and reputation likewise must fail. “In order to
recover under § 1983 for infringement upon a liberty interest, [a] plaintiff must
first show that the complained of conduct stigmatized or otherwise damaged [his
or] her reputation.” McGhee v. Draper, 639 F.2d 639, 642-43 (10th Cir. 1981)
(citing Paul v. Davis, 424 U.S. 693, 697-713 (1976)). A plaintiff’s alleged
reputational damage must be entangled with some other “tangible interests such as
employment.” Paul, 424 U.S. at 701. To establish a liberty interest, a plaintiff
also must satisfy a four-part test: “First, to be actionable, the statements must
impugn the good name, reputation, honor, or integrity of the employee. Second,
the statements must be false. Third, the statements must occur in the course of
terminating the employee or must foreclose other employment opportunities. And
fourth, the statements must be published.” Workman, 32 F.3d at 481 (internal
citations omitted). Once a plaintiff meets these requirements, thereby establishing
the existence of a liberty interest, the due process protections of the Fourteenth
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Amendment are triggered and the plaintiff must show that he or she was not
afforded an adequate name-clearing hearing. Wisconsin v. Constantineau, 400
U.S. 433, 437 (1971); Jensen v. Redevelopment Agency, 998 F.2d 1550, 1558
(10th Cir. 1993).
The district court properly noted that Plaintiff’s procedural due process
claim based upon the deprivation of a liberty interest is subject to dismissal under
Rule 12(b)(6) because Plaintiff cannot establish that he possessed a liberty
interest. In his complaint, Plaintiff fails to allege, as he must, that the charges
against him were false or published. Plaintiff therefore can prove no set of facts
in support of his liberty interest claim that would entitle him to relief, and the
district court properly granted Defendant Oklahoma City’s motion to dismiss on
this ground.
The district court also properly dismissed Plaintiff’s liberty interest claim
under Rule 56(c), because, as a matter of law, the OCPD provided Plaintiff with
all of the process he was due under the Fourteenth Amendment. The district court
held, and we agree, that the OCPD provided Plaintiff with an adequate name-
clearing hearing when he appeared before the Department Review Board on
November 21, 2001.
Having carefully reviewed the briefs, the record, and the applicable law, we
AFFIRM the judgment of the United States District Court for the Western District
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of Oklahoma. 5
Entered for the Court
Judith C. Herrera
District Judge
5
We note that Defendant Oklahoma City filed its Objection to Statements
in Plaintiff/Appellant’s Reply. Defendant’s objections, however, do not contain
any requests for relief that would require a decision on our part. We also note
that Defendant Oklahoma City seeks sanctions against Plaintiff and his counsel on
the ground that Plaintiff’s appeal is frivolous. Rule 38 of the Federal Rules of
Appellate Procedure requires Defendant Oklahoma City to file a separate motion
for sanctions. Fed. R. App. P. 38; Smith v. Kitchen, 156 F.3d 1025, 1030 (10th
Cir. 1997). Defendant, however, requested sanctions in one sentence of its
answer brief on appeal. Answer Br. at 24. We therefore decline to consider
Defendant’s request.
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