FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 23, 2008
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
LARRY PARKER,
Plaintiff-Appellant,
v. No. 06-5218
(D.C. No. 05-CV-0550-CVE-FHM)
TOWN OF CHELSEA; KENNY (N.D. Okla.)
WEAST; CHARLES BARNES;
HOWARD DRAKE; REBECCA
MURATET,
Defendants-Appellees.
ORDER
Before KELLY, McKAY, and ANDERSON, Circuit Judges.
This matter is before the court on appellant’s petition for panel rehearing.
After considering the petition and the response, the petition for rehearing is
DENIED. The court has modified the order and judgment on its own motion,
however, for purposes of clarifying the scope of the remand. The modified order
and judgment is attached.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS February 5, 2008
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT
Clerk of Court
LARRY PARKER,
Plaintiff-Appellant,
v. No. 06-5218
(D.C. No. 05-CV-0550-CVE)
TOWN OF CHELSEA; KENNY (N.D. Okla.)
WEAST; CHARLES BARNES;
HOWARD DRAKE; REBECCA
MURATET,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and ANDERSON, Circuit Judges.
Larry Parker appeals from the district court’s orders granting summary
judgment in favor of defendants. Mr. Parker’s complaint arises out of the
termination of his employment as chief of police for the defendant Town of
Chelsea. He asserted claims for due process violations, government infringement
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
on his liberty interest, breach of contract, and intentional and/or negligent
infliction of emotional distress. In its initial order, the district court granted
summary judgment on the liberty interest and emotional distress claims, but
denied summary judgment on the due process and contract claims. In an amended
order, it granted summary judgment on those two remaining claims. Mr. Parker’s
opening appellate brief challenges the district court’s rulings on his breach of
contract and liberty interest claims. Because he does not raise a challenge to the
district court’s rulings on the due process and emotional distress claims, any such
challenge to those claims is waived. See, e.g., State Farm Fire & Cas. Co. v.
Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994). We exercise jurisdiction pursuant
to 28 U.S.C. § 1291. We reverse and remand on the breach of contract claim, and
we affirm on the liberty interest claim.
Standard of Review
We review de novo the district court’s grant of summary judgment,
applying the same standard as the district court. Simms v. Okla. ex rel. Dep’t of
Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).
Summary judgment is appropriate when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Id. In
considering a motion for summary judgment, the evidence must be viewed in the
light most favorable to the party opposing the motion. Id.
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Breach of Contract Claim
Mr. Parker began his employment with the defendant Town of Chelsea
(“Town”) as a law enforcement officer in 1995. He was appointed to the position
of police chief in 2001, and he was terminated from that position on March 14,
2005. After he was terminated, he submitted a written grievance to Earl Knipe, a
member of the Board of Trustees of the Town, but he did not receive any response
to his grievance. In his amended complaint, Mr. Parker brought a breach of
contract claim asserting that an implied contract existed between him and the
Town based on the Employee Handbook “which provides the Plaintiff with a
protected property interest and certain employment safeguards.” Aplt. App.,
Vol. I at 217. Mr. Parker was therefore asserting that he had an implied
contractual right to two different things: (1) a protected property interest; and
(2) certain employment safeguards.
The district court properly concluded that Mr. Parker was an at-will
employee who, according to Oklahoma law, could be terminated “solely for the
good of the service,” Okla. Stat. tit. 11, § 12-114, and therefore could not have a
protected property interest in continued employment. As a result, the district
court concluded that the Employee Handbook could not have created an implied
contract altering the at-will nature of plaintiff’s employment. Mr. Parker is not
challenging this conclusion by the district court. But Mr. Parker’s argument on
appeal is that even if he was an at-will employee, an implied contract could have
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existed regarding the grievance procedure to be followed during termination,
which is the second part of his breach of contract claim. The district court did not
separately address this issue in its order granting summary judgment in favor of
the Town. Mr. Parker argues on appeal that the district court erred in granting
summary judgment on his breach of contract claim because:
The grievance provisions did not limit the [the Town’s] right to
terminate the at-will employment of [Mr. Parker]. Instead, the
procedural safeguards set forth in the grievance procedures merely
reflect that the Board of Trustees wanted to follow certain procedures
regarding termination. These procedural safeguards were valid and
enforceable.
Aplt. Br. at 9.
Mr. Parker is correct that even an at-will employee may have an implied
contractual right to certain employment procedures. See, e.g., Kester v. Stilwell,
933 P.2d 952, 953-954 (Okla. Ct. App. 1997); Johnson v. Nasca, 802 P.2d 1294,
1295-1297 (Okla. Ct. App. 1990); Breshears v. Moore, 792 P.2d 91, 92-94
(Okla. Ct. App. 1990). The question then is whether a genuine issue of material
fact exists regarding Mr. Parker’s assertion that he did have an implied
contractual right to the grievance procedure in the Employee Handbook, and that
the Town breached its contractual duty by failing to follow that procedure. “An
inquiry into whether an implied contract exists is normally factual.” Dupree v.
United Parcel Serv., Inc., 956 F.2d 219, 222 (10th Cir. 1992); see also Russell v.
Bd. of County Comm’rs, 952 P.2d 492, 502 (Okla. 1998).
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In its motion for summary judgment, the Town made two arguments
regarding the breach of contract claim: (1) that the Town never adopted the
Employee Handbook; and (2) that the Handbook contained disclaimers stating
that it does not create an express or implied right of contract of employment and
that individuals are employed on an at-will basis. In response, Mr. Parker
provided evidence that the Town did adopt the Employee Handbook, including
minutes from a Board of Trustees meeting in 2004 where the Board approved the
adoption of the revised Employee Handbook. See Aplt. App., Vol. II at 389.
Mr. Parker also presented evidence that the Employee Handbook included
a grievance procedure provision, that the Trustees believed that the grievance
procedure should be followed, and that the grievance procedure was not followed
in his case. The Employee Handbook grievance procedure states as follows:
If an employee feels he has been treated unfairly or if he has a
complaint, he should discuss it with the supervisor/Trustee. The
supervisor/Trustee shall attempt to resolve the problem promptly and
fairly, and give his/her decision to the employee within ten working
days.
If the employee is dissatisfied with the supervisor’s decision, the
employee may choose to submit the grievance in writing to the
assigned Trustee. The Trustee shall give a decision to the supervisor
and the employee within ten working days.
If the employee is dissatisfied with the Trustee’s decision, the
employee may choose to submit the grievance in writing to the
Board.
Id. at 343.
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Mr. Parker then provided excerpts from the deposition testimony of
members of the Town’s Board of Trustees: Earl Knipe, Mark Ramsey, and
Rebecca Muratet. Mr. Knipe agreed with the statement that it is “intended for the
employees to rely on [the Employee Handbook] and believe and understand that
the[] policies and practices that are in the employee manual will, in fact, be
followed with each of [the employees].” Id. at 401. He further agreed that the
Town “has always done its best to comply with th[e] practices and policies that
are in the employee manual” and “that when a person in any position comes to
work for the Town of Chelsea, . . . that person can rightfully assume and believe
that the employee manual and practices and policies are going to be followed with
regard to him.” Id. at 402. He admitted, however, that the policies and practices
in the Employee Handbook were not followed with regard to Mr. Parker. Id.; see
also id. at 399-400 (acknowledging that, according to the Employee Handbook, a
response is supposed to be made to a written grievance, but that no response was
made to Mr. Parker’s grievance). Consistent with Mr. Knipe’s testimony,
Mr. Ramsey testified that the grievance procedure in the Employee Handbook
requires a written response. Id. at 418. Likewise, Ms. Muratet testified that
Mr. Knipe was obligated to respond to Mr. Parker’s written grievance. Id. at 425.
The Town did not file a reply to its motion for summary judgment. As a
result, it offered no rebuttal to Mr. Parker’s argument regarding the grievance
procedure. Now, for the first time on appeal, it is attempting to argue that it is
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entitled to summary judgment because Mr. Parker did not properly exercise his
grievance rights. As Mr. Parker correctly points out in his appellate reply brief,
this argument was not presented to the district court. The Town did not make this
assertion in its answer to the complaint or in its motion for summary judgment.
In general, this court will not consider an argument that was not presented to the
district court, and the Town has not articulated a reason to depart from this rule.
See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992).
Mr. Parker’s evidence demonstrates the existence of a grievance procedure
in the Employee Handbook, which from its plain language appears mandatory:
“The supervisor/Trustee shall attempt to resolve the problem promptly and fairly,
and give his/her decision to the employee within ten working days.” Aplt. App.,
Vol. II at 343 (emphasis added). Moreover, despite the disclaimers identified in
the Employee Handbook by the Town, Mr. Parker provided evidence that
members of the Board of Trustees believed that the Town was required to follow
the grievance procedure in the Handbook, that the Town did its best to comply
with the provisions in the Handbook, and that employees could rely on the
provisions in the Handbook and expect that they would be followed by the Town.
Oklahoma courts have held that inconsistences between the language in a
handbook and the employer’s conduct and representations may create a factual
issue precluding summary judgment. In Johnson, the court held that:
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While an employer may disclaim the creation of contractual rights,
such a disclaimer must be clear. Here, the handbook, when viewed
in conjunction with a pattern of practice indicating the adoption and
consistent use of these procedures, may lead reasonable minds to
differing conclusions about the existence of implied contractual
rights to use of the procedures.
802 P.2d at 1297; see also Russell, 952 P.2d at 503 (holding that plaintiffs’
“evidentiary materials raise a material fact question whether the effectiveness of
the Board’s written disclaimer is negated by inconsistent employer conduct.”).
Finally, Mr. Parker provided evidence that the grievance procedure was not
followed in his case.
Because Mr. Parker has raised a genuine issue of material fact as to
whether an implied contractual right existed to the use of the grievance procedure,
and whether the Town is liable for its failure to follow that grievance procedure,
we must reverse and remand to the district court for further proceedings on this
issue.
Liberty Interest Claim
Mr. Parker brought a claim against defendants, arguing that his wrongful
termination infringed on his liberty interests without due process of law in
violation of the Fifth Amendment. In the employment context, liberty interests
involve: “1) the protection of [the employee’s] good name, reputation, honor, and
integrity, and 2) [the employee’s] freedom to take advantage of other employment
opportunities.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). In order
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to support a claim for violation of his liberty interests, Mr. Parker must show that
the defendants made statements that: (1) impugned his “good name, reputation,
honor, or integrity;” (2) were false; (3) occurred in the course of his termination;
and (4) were published. Workman v. Jordan, 32 F.3d 475, 481 (10th Cir. 1994).
Mr. Parker’s evidence in support of his liberty interest claim consisted of
the conclusory statement from his affidavit that: “In the course of my
termination, the Defendants publicized the false charges that I was guilty of
misappropriating funds,” Aplt. App., Vol. II at 409, and the conclusory statement
from the affidavit of one other individual that: “I believe the accusations against
Chief Parker were published or reported by the Defendant Board of Trustee
members,” id. at 437. Conclusory statements are insufficient to overcome
defendants’ motion for summary judgment. See Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 675 (10th Cir. 1998). Because Mr. Parker failed to present
sufficient evidence demonstrating that defendants made false statements about
him and that such false statements were published, the district court properly
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granted summary judgment in favor of defendants on Mr. Parker’s liberty interest
claim.
The judgment of the district court is AFFIRMED in part and REVERSED
and REMANDED in part. 1
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
1
For his third issue on appeal, Mr. Parker asserts that the district court erred
in granting qualified immunity to the defendants on his contract claim. This is a
mischaracterization of the district court’s order. The district court granted
qualified immunity to the individual defendants on Mr. Parker’s federal due
process claim, not on his state law breach of contract claim. See Aplt. App.,
Vol. II at 511-12. The individual defendants were not named in the breach of
contract claim and, even if they had been named, qualified immunity is not
available as a defense to a state law breach of contract claim. Mr. Parker’s
misguided argument on this issue provides no basis to disturb any part of the
district court’s order.
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