Bjorklund v. Miller

FILED
United States Court of Appeals
Tenth Circuit

March 7, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT

RICK BJORKLUND,

Plaintiff-Appellee,

v. No. 11-5037
(D.C. No. 4:08-CV-00424-TCK-PJC)
RANDI MILLER, individually and in (N.D. Okla.)
her official capacity as former
Chairperson and current Member of
the Tulsa County Public Facilities
Authority,

Defendant-Appellant,

JOHN SMALIGO, Chairman of the
Tulsa County Public Facilities
Authority; JAMES C. ORBISON,
Vice-Chairman of the Tulsa County
Public Facilities Authority; FRED
PERRY, Secretary of the Tulsa County
Public Facilities Authority,

Defendants.

ORDER AND JUDGMENT *

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.

Rick Bjorklund brought this civil rights suit pursuant to 42 U.S.C. § 1983

against four public officials associated with his former employer, the Tulsa

County Public Facilities Authority (“TCPFA”). In his complaint, he charged that

the officials had terminated his employment and deprived him of a liberty interest

in his reputation and good name without affording him due process of law. The

defendants moved for summary judgment. The district court granted their motion

as to all claims except two: a deprivation-of-property-interest claim against

defendant Randi Miller in her individual and official capacities, and a

deprivation-of-liberty-interest claim against Ms. Miller in her individual capacity.

Ms. Miller appeals the district court’s denial of qualified immunity on the

individual-capacity claims. We affirm.

BACKGROUND

1. The Employment Agreement

The TCPFA is a public trust organized under Oklahoma law. It manages

activities on the Tulsa County Fairgrounds and other property in Tulsa County,

Oklahoma. The TCPFA is governed by its Board of Trustees. During the time

period relevant to this action, the Board included Ms. Miller and the other three

defendants named in Mr. Bjorklund’s complaint.

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 On January 1, 2007, the TCPFA employed Mr. Bjorklund as its President

and Chief Executive Officer. The TCPFA and Mr. Bjorklund executed a written

Employment Agreement (“Agreement”) that provided him with a five-year term

of employment. Aplt. App., Vol. IV at 829. 1 The Agreement required

Mr. Bjorklund to perform the usual duties associated with his position and also

other duties as assigned by the TCPFA. Id. at 828. He agreed to act faithfully

and industriously and to perform these duties to the TCPFA’s reasonable

satisfaction.

The Agreement listed six circumstances under which the TCPFA had “the

right to terminate this Agreement at any time, without notice.” Id. at 833. One of

these circumstances would occur “[i]f [Mr. Bjorklund should] violate any of the

provisions of this Agreement or if [Mr. Bjorklund should], by misconduct or

negligent inattention to the rendering and performance of his responsibilities

hereunder, injure the business or goodwill of [the TCPFA] or hinder the

accomplishment of [the TCPFA’s] objectives.” Id.

1
Although the Agreement provided Mr. Bjorklund with employment for five
years, it also provided that after the third year, the Agreement would be
automatically renewed for additional periods of one year, “provided neither party
submits a written notice of termination to the other party not less than sixty (60)
days prior to the end of the then current calendar year.” Aplt. App., Vol. IV at
829. This provision is not directly at issue in this appeal.

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 2. The “Big Splash” Account

As part of his duties, Mr. Bjorklund managed the account of the TCPFA’s

tenant, Expo Water Park, Inc., also known as Big Splash Water Park (“Big

Splash”). Big Splash’s lease required it to make annual rent payments to the

TCPFA no later than October 15 of each year. On October 15, 2006, shortly

before the commencement of Mr. Bjorklund’s employment, Big Splash failed to

make its annual rent payment.

One of Mr. Bjorklund’s duties as President and CEO of the TCPFA was to

distribute to its trustees monthly statements detailing the TCPFA’s financial

status. These statements included a section entitled “Summary Aging of

Accounts Receivable,” which listed by name accounts payable to the TCPFA that

were more than sixty days overdue. Preston Jackson, the TCPFA’s controller,

prepared these monthly financial statements. Mr. Jackson reported directly to

Mr. Bjorklund.

After the Big Splash account became more than sixty days overdue, the

account began appearing in the “Summary Aging of Accounts Receivable.”

Mr. Bjorklund asserts that in January 2007, he had a telephone conversation with

Big Splash’s then-owner concerning the unpaid rent. During the conversation, the

owner promised to pay half of its overdue rent immediately and to provide a

check post-dated to June 2007 for the remainder of the rent. The owner provided

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the two checks as promised. Mr. Bjorklund did not notify the Board of this

arrangement.

Mr. Bjorklund alleges that in June 2007 he had another conversation with

Big Splash’s owner. During this conversation, the owner informed Mr. Bjorklund

that the post-dated check would not clear and asked Mr. Bjorklund not to deposit

it. Acting on Mr. Bjorklund’s instructions, Mr. Jackson retrieved the check from

the bank where it had been sent for deposit.

Mr. Bjorklund consulted with Ms. Miller, who was then Chairman of the

TCPFA’s Board, about the Big Splash rent issue. According to Mr. Bjorklund,

Ms. Miller told him, “[W]ell, we need to just keep it off the radar.” Id., Vol. II at

239. Mr. Bjorklund understood her to mean that he should not let the unpaid rent

become “a spectacle,” and that he should not “let it be public.” Id. at 239-40.

Mr. Bjorklund passed on to Mr. Jackson Ms. Miller’s admonition to keep

the Big Splash account “off the radar.” In response to this instruction,

Mr. Jackson removed the account from the “Summary Aging of Accounts

Receivable” section of the monthly financial statements, and placed it in a

different category. In this new category, the debt to Big Splash was not

specifically identified by name. See id., Vol. I at 103.

3. The “Big Splash” Investigation

In August 2007, a local television station filed an Open Records Act

request with the TCPFA seeking information on all payments from Big Splash to

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the TCPFA between 2000 and the date of the request. Even though he was still

holding the post-dated rent check from Big Splash, Mr. Jackson erroneously

reported in response to this request that Big Splash had made its full rent payment

due in October 2006. On October 15, 2007, Big Splash again failed to make its

annual rent payment.

During the first half of 2008, the TCPFA’s Board and its legal counsel,

Thomas Hilborne, received information suggesting that Big Splash was suffering

financial difficulties. Board members also became aware that Big Splash had

failed a safety inspection by state inspectors. At the end of June 2008,

Mr. Bjorklund contacted Mr. Hilborne to discuss with him issues surrounding the

Big Splash account.

On June 27, 2008, acting on instructions from Mr. Hilborne, Mr. Bjorklund

spoke with John Smaligo, who was by then the Board’s Chairman. He informed

Mr. Smaligo of the uncashed check from Big Splash, its subsequent failure to pay

rent for 2007, and the fact that this delinquency had been placed “off the radar.”

Later that day, Mr. Bjorklund, Mr. Jackson, Mr. Hilborne and Mr. Smaligo met

and discussed the Big Splash account, including the removal of the account from

the “Summary Aging of Accounts Receivable” section of the monthly financial

statements and Mr. Jackson’s inaccurate response to the Open Records Act

request concerning Big Splash’s rent payments.

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 On the following day, a newspaper article appeared in the Tulsa World

entitled “Big Splash late on 2007 rent.” Aplt. App., Vol. VI at 1459. The article

reported on the delay in Big Splash’s payment of its 2006 rent as well as its

delinquency for 2007. It noted that Big Splash owed the TCPFA $130,657. The

article quoted both Mr. Smaligo and Mr. Bjorklund concerning the problems with

the Big Splash payments. Mr. Bjorklund stated that the 2006 check had finally

been cashed, “but he had no ready explanation for why it had taken so long.” Id.

He denied that the TCPFA had held the check as a favor to Big Splash. Id. at

1460.

4. The TCPFA Meeting

The TCPFA Board was scheduled to meet a few days later, on July 1, 2008.

On June 30, Mr. Hilborne instructed Mr. Bjorklund’s assistant to add an item to

the meeting agenda. The new item indicated that the Board would “[v]ote to

convene executive session to discuss the employment, hiring, appointment,

promotion, demotion[,] disciplining or resignation of chief executive officer

and/or comptroller pursuant to Title 25, Oklahoma Statutes 2001, Section

307(B)(1).” Id., Vol. IV at 1061. The morning of the 30th, Mr. Bjorklund’s

assistant provided him with a copy of the revised agenda.

During the Board meeting the next day, the Trustees convoked a private

executive session to discuss the employment of Mr. Bjorklund and Mr. Jackson.

Mr. Bjorklund was called into the session and questioned about the issues with

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Big Splash. He expressed remorse for his actions, and apologized to the Board.

When asked repeatedly who had instructed him to hold the Big Splash rent check

and to remove Big Splash from the “Summary Aging of Accounts Receivable”

section of the monthly report, he allegedly turned to Ms. Miller and stated,

“Randi, it was you and you know it. You told me to get it off the radar.” Id.

at 938. Ms. Miller responded by denying this allegation.

Following the executive session, Ms. Miller moved to terminate

Mr. Bjorklund’s employment. The Board voted unanimously to terminate his

employment for directing that the Big Splash check not be deposited, causing

false financial information to be reported to the Board, effectively extending the

terms of the contract with Big Splash by failing to collect the overdue rent, and

causing the false reporting in response to the Open Records Act request regarding

Big Splash’s 2006 rent payment.

5. The Tulsa World Articles

On July 10, 2008, just over a week after Mr. Bjorklund’s termination, the

Tulsa World published an article entitled “Ex-Expo Square exec says

commissioner ordered him to ease off Big Splash.” Id., Vol. III at 765. In the

article, Mr. Bjorklund was quoted as stating Ms. Miller told him to “[e]ase up on

[Big Splash] and get it off the radar.” Id. When asked about this, the article

stated, Ms. Miller “denied she ever told [Mr.] Bjorklund to cover up anything.”

Id. She called the accusation “a blatant lie.” Id.

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 A second article appeared the following day, entitled “Bjorklund says the

commissioner wanted Big Splash ‘off the radar’ but she says that’s a lie.”

Id. at 767. This article repeated Mr. Bjorklund’s statement that Ms. Miller had

told him to keep Big Splash’s financial troubles “off the radar,” and again

published Ms. Miller’s response that this was “a blatant lie.” Id. The

disagreement between Mr. Bjorklund and Ms. Miller was also discussed in a third

and a fourth article. See id. at 769-70; Vol. V at 1241-42. Mr. Bjorklund asserts

that as the result of this “negative media attention” he has been unable to find

employment and has been informed that he is “no longer marketable.” Aplt.

Opening Br. at 7-8.

ANALYSIS

1. Jurisdictional Issue

“Qualified immunity protects governmental officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Weise v.

Casper, 593 F.3d 1163, 1166 (10th Cir. 2010) (internal quotation marks omitted).

In order to avoid subjecting officials to “the travails of extended litigation,” an

official denied qualified immunity need not wait until final judgment in the action

but is permitted instead to seek interlocutory review of legal determinations

underlying the denial. Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.

2009). In the course of exercising such interlocutory review, “[a]lthough we lack

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jurisdiction to review the district court’s rulings on the sufficiency of the

evidence, we nevertheless may determine whether a given set of facts violates a

clearly established constitutional right.” Id. (citation omitted). “Insofar as we

have jurisdiction to review the denial of a qualified-immunity motion for

summary judgment, our review is de novo.” Deutsch v. Jordan, 618 F.3d 1093,

1099 (10th Cir. 2010).

Mr. Bjorklund contends that this court lacks jurisdiction over this

interlocutory appeal because Ms. Miller merely takes issue with the district

court’s determinations concerning the sufficiency of the evidence. We disagree.

Our review reveals that, taking the facts in the light most favorable to

Mr. Bjorklund, Ms. Miller’s alleged conduct did violate his clearly-established

constitutional rights. Accordingly, we have jurisdiction over this appeal, but we

must also affirm the denial of qualified immunity at the summary judgment stage.

2. Property Interest Claim

Mr. Bjorklund asserts that Ms. Miller deprived him of his property interest

in his job without due process of law by recommending that he be terminated and

by voting to terminate his employment when she was personally biased against

him. “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.” Riggins,

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572 F.3d at 1108 (internal quotation marks omitted). We begin with the first

factor. “A property interest includes a legitimate claim of entitlement to some

benefit created and defined by existing rules or understandings that stem from an

independent source such as state law.” Crown Point I, LLC v. Intermountain

Rural Elec. Ass’n, 319 F.3d 1211, 1216 (10th Cir. 2003).

A. Existence of Protected Interest

During the first three years of the Agreement at issue here, the TCPFA

could terminate Mr. Bjorklund’s employment only for cause, based on the

existence of one or more of six enumerated circumstances. Such provisions have

been held to create a property interest under Oklahoma law. See, e.g., Hennigh v.

City of Shawnee, 155 F.3d 1249, 1255 (10th Cir. 1998) (holding plaintiff had

property interest under Oklahoma law in his rank as police lieutenant, where

collective bargaining agreement contracted pursuant to state legislation provided

for his demotion only for cause).

Ms. Miller asserts, however, that the Agreement did not grant

Mr. Bjorklund a property interest in continued employment because the provision

that listed the six permitted reasons for termination of Mr. Bjorklund’s

employment also stated the TCPFA could terminate the Agreement “without

notice” if one of these circumstances existed. See Aplt. App., Vol. IV at 833.

The district court rejected this argument, noting that defendants had failed to cite

any authority holding that the mere insertion of the phrase “without notice” in an

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employment contract otherwise permitting termination only for cause eliminates

the employee’s property right in his employment. See id., Vol. VI at 1437. We

agree that Ms. Miller’s position is untenable. We also note that her interpretation

of the Agreement puts the cart before the horse.

In order to invoke the “without notice” provision, the TCPFA was first

required to determine that one of the six enumerated circumstances justifying

termination of Mr. Bjorklund’s employment was present. See id., Vol. IV at 833.

Nothing in the Agreement suggests that the TCPFA reserved the right to make

this substantive determination entirely within its own discretion. Nor did the

Agreement empower the TCPFA to decide this issue in bad faith, arbitrarily, or

without good cause. Rather, the TCPFA was plainly required to make this

substantive determination in good faith. See Ahlschlager v. Lawton Sch. Dist.,

242 P.3d 509, 515 n.3 (Okla. 2010) (“[E]very contract in Oklahoma contains an

implied duty of good faith and fair dealing.” (quotation omitted)). This gave

Mr. Bjorklund an expectation of continued employment unless the TCPFA in

good faith made a substantive determination that cause existed for his dismissal.

In effect, the TCPFA could only terminate the Agreement and

Mr. Bjorklund’s employment “without notice” after the determination had been

made that one of the relevant circumstances existed. This discernable substantive

limitation on the exercise of the TCPFA’s discretion created a property interest in

favor of Mr. Bjorklund in his continued employment. See, e.g., Fed. Lands Legal

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Consortium ex rel. Robart Estate v. United States, 195 F.3d 1190, 1197 (10th Cir.

1999) (stating courts focus on discretion to deny benefit in assessing whether

property interest exists); see also Roth v. King, 449 F.3d 1272, 1285 (D.C. Cir.

2006) (“[P]rotected liberty interests are created when a state places substantive

limitations on official discretion” (citation omitted)). He could only be deprived

of this property interest after appropriate notice and an opportunity to be heard

concerning the existence of circumstances justifying the termination.

In fact, the TCPFA’s own course of conduct (notifying Mr. Bjorklund that

his continued employment had been called into question, and permitting him to

defend his behavior at the Board meeting) suggests it understood that

Mr. Bjorklund was entitled to notice and a hearing under the Agreement prior to

its determination of the existence of necessary predicate facts permitting his

termination “without notice.” We therefore reject Ms. Miller’s argument that the

“without notice” provision stripped Mr. Bjorklund of a property interest and the

right to due process.

B. Entitlement to Unbiased Decision-Maker

We turn to the second due process factor, whether Mr. Bjorklund was

afforded an appropriate quantum of process. 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). “For government employees,

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such a 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.” Riggins, 572 F.3d

at 1108 (internal quotation marks and brackets omitted).

Due Process in this context also requires an impartial tribunal. See id. at

1112 (“Impartiality of the tribunal is an essential element of due process.”). The

presence of a single biased decision-maker taints the tribunal and therefore may

result in a violation of due process, even if the other members of the panel do not

independently share in her bias. See Hicks v. City of Watonga, 942 F.2d 737, 748

(10th Cir. 1991). The district court determined that, while the other elements of

due process were satisfied, genuine issues of material fact remained concerning

whether Ms. Miller was an unbiased decision-maker.

Relying on dicta in Riggins, Ms. Miller contends that as a matter of law

an employee has no due process right to an unbiased pre-termination

decision-maker. 2 Were we to adopt the broad conclusion that Ms. Miller draws

2
In Riggins, the plaintiff undertook a three-step grievance process prior to
the termination of his employment. He later argued in federal court that the
officials who made the final, pre-termination decision to fire him violated his
right to a fair tribunal because they were biased against him. This court
determined that the plaintiff had failed to make a substantial showing of personal
bias, because “a combination of adjudicatory and investigatory functions
[generally does not represent] a denial of due process.” Riggins, 572 F.3d at
1112. This court went on to remark, in a parenthetical citation to a Second
Circuit case, “that a neutral adjudicator is not a necessary component of due
(continued...)

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from the Riggins dicta, we would be required to overrule over thirty years of

Tenth Circuit precedent holding that employees with a property interest do have a

right to an unbiased pre-termination decision-maker. See, e.g., Cypert v. Indep.

Sch. Dist. No. I-050, 661 F.3d 477, 481 (10th Cir. 2011); McClure v. Indep. Sch.

Dist. No. 16, 228 F.3d 1205, 1214-16 (10th Cir. 2000); Langley v. Adams Cnty.,

987 F.2d 1473, 1480 (10th Cir. 1993) (“[E]ven if plaintiff did receive a

reasonable opportunity for a pre-termination hearing, that hearing by itself would

not appear to have satisfied the county’s due process obligation [because] the

person terminating plaintiff . . . was not an unbiased decision-maker.”); Patrick v.

Miller, 953 F.2d 1240, 1245-46 (10th Cir. 1992); Miller v. City of Mission,

705 F.2d 368, 372 (10th Cir. 1983); Staton v. Mayes, 552 F.2d 908, 914 (10th Cir.

1977) (“The firm public statements before the [pre-termination] hearing by

[a decision-maker] for the removal of [the plaintiff], and the discussions by [other

decision-makers] as admitted, reveal a tribunal not meeting the demands of due

process for a hearing with fairness and the appearance of fairness.”).

2
(...continued)
process at a pretermination hearing, so long as the plaintiff is afforded a hearing
before a neutral adjudicator after termination.” Id. at 1115 (citing Locurto v.
Safir, 264 F.3d 154, 173-74 (2d Cir. 2001)). This remark was dicta for two
reasons: first, in Riggins, the plaintiff’s claim failed in any event because he did
not make a sufficient showing of bias; and second, the only hearings in question
in Riggins were the three pre-termination hearings the plaintiff received.

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 As one panel of this court cannot overrule another, see United States v.

Brown, 400 F.3d 1242, 1256 (10th Cir. 2005), we must apply prior Tenth Circuit

law and hold that an employee with a protected property interest in his

employment is entitled to an unbiased decision-maker at his pretermination

hearing. We note also that Riggins dicta likely has no application here in any

event, because it deals with the situation where the pre-termination bias is

corrected when the employee “is afforded a hearing before a neutral adjudicator

after termination.” Riggins, 572 F.3d at 1115 (citation omitted). 3 There is no

indication that Mr. Bjorklund was offered such an impartial, post-termination

hearing.

The next issue Ms. Miller raises is whether, taking the facts Mr. Bjorklund

has alleged, he has demonstrated that she deprived him of his right to an unbiased

decision-maker. In this context, “a substantial showing of personal bias is

required to disqualify a hearing officer or tribunal.” Riggins, 572 F.3d at 1112

(internal quotation marks omitted). The district court concluded that genuine

issues remained concerning whether Mr. Bjorklund had made such a substantial

showing, for three reasons: (1) Mr. Bjorklund personally attacked Ms. Miller

during the executive session; (2) she had a personal stake and conflict of interest

3
Moreover, Ms. Miller is not entitled to assert that the law was not clearly
established based on the dicta in Riggins, because that case was decided after the
events in question and many other, prior cases held to the contrary.

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in seeing Mr. Bjorklund blamed for hiding the unpaid account; and (3) she was

biased on the factual issue of whether she had authorized Mr. Bjorklund’s actions.

Ms. Miller challenges these conclusions. She contends that

Mr. Bjorklund’s statements at the hearing were not “personal attacks” on her

sufficient to overcome the presumption of her honesty and integrity as a

decision-maker and that the dispute over her alleged instruction to him to keep the

Big Splash account “off the radar” did not demonstrate a sufficient bias or

conflict of interest on her part to call her impartiality into question. Having

considered these arguments, we conclude that the district court reached the

correct result in denying qualified immunity.

It was clearly established, at all times pertinent to this case, that a personal

stake in the outcome of proceedings can create a conflict of interest sufficient to

deprive an employee of an unbiased decision-maker. See Tonkovich v. Kan. Bd.

of Regents, 159 F.3d 504, 520 (10th Cir. 1998). Cf. also Gibson v. Berryhill,

411 U.S. 564, 579 (1973) (“[T]hose with substantial pecuniary interest in legal

proceedings should not adjudicate these disputes”). One recognized form of

personal stake is an attempt to seek self-vindication, a possibility long recognized

in the vindictive prosecution context. Cf., e.g., United States v. Pittman, 642 F.3d

583, 586 (7th Cir. 2011) (“Vindictive prosecution may . . . exist when it can be

shown that the government’s actions were motivated by the prosecutor’s . . .

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desire to seek self-vindication for prior errors that he may have committed in a

case.” (quotation omitted)).

Here, a reasonable jury could conclude that Ms. Miller faced a direct

accusation from Mr. Bjorklund that she had instructed him to hide the Big Splash

debt, and that she had therefore played a significant role in a potential scandal

that had become public by being bruited in the local press. See Aplt. App.,

Vol. VI at 1459-60. Terminating Mr. Bjorklund’s employment could serve to pin

the blame on him and deflect any blame from Ms. Miller. A reasonable jury

could therefore conclude that Ms. Miller had a personal stake in the outcome of

Mr. Bjorklund’s employment termination proceeding, and that for this reason she

should have declined to participate in the proceeding. In particular, by moving

that his employment be terminated and by voting for his termination she may have

actively denied him his due process right to an impartial decision-maker.

3. Liberty Interest Claim

Mr. Bjorklund’s complaint also included a claim that, in the course of

terminating his employment, Ms. Miller deprived him of a liberty interest in his

good name without due process. He charged that by accusing him of lying in an

interview she gave to the Tulsa World, Ms. Miller made unfounded charges of

dishonesty or immorality that seriously damaged his standing in the community

and foreclosed his freedom to take advantage of future employment opportunities.

An employee has a “liberty interest in his good name and reputation as it

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affects his protected property interest in continued employment.” Workman v.

Jordan, 32 F.3d 475, 480 (10th Cir. 1994). A plaintiff who asserts a

“stigma-plus” claim charging infringement of this liberty interest must show both

(1) government defamation and (2) an alteration of his legal status. Guttman v.

Khalsa, ___ F.3d ___, Nos. 10-2167, 10-2172, 2012 WL 76055, at *20 (10th Cir.

Jan. 11, 2012). As we formulated the test in Workman, in addition to meeting

§ 1983’s “state action” requirement, the employee must show that (1) the

statements impugned his good name, reputation, honor, or integrity; (2) the

statements were false; (3) the statements occurred in the course of terminating the

employee or will foreclose other employment opportunities; and (4) the

statements were published. 32 F.3d at 481. We later clarified that the third

element of this test is conjunctive, and that in order to satisfy it, the employee

must show both that the defamatory statement occurred in the course of

employment termination and that it will foreclose other employment

opportunities. See Guttman, 2012 WL 76055, at *21.

A. Lack of Request for a “Name-Clearing” Hearing

In Ms. Miller’s main line of attack, she contends that Mr. Bjorklund’s

alleged failure to request a name-clearing hearing is fatal to his claim. The

district court disagreed, opining that “[u]nder Tenth Circuit law, a request for a

name clearing hearing is not a jurisdictional prerequisite to suit.” Aplt. App.,

Vol. VI at 1450. It relied on Eames v. City of Logan, 762 F.2d 83 (10th Cir.

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1985). In that case, a district court dismissed the plaintiff’s complaint under

Fed. R. Civ. P. 12(b)(6), reasoning that his failure to allege that he had requested

a name-clearing hearing prior to filing his complaint meant that he had failed to

state a claim for denial of a liberty interest. On appeal, we reversed, holding that

the employee’s “failure to earlier request a name-clearing hearing does not defeat

his claim. He may still be entitled to a hearing if he can prove at trial that his

liberty interest was indeed violated.” Id. at 86.

Ms. Miller opposes reliance on Eames here, for several reasons. First, she

contends that Eames should be distinguished from this case because

Eames involved a dismissal at the pleading stage, whereas Mr. Bjorklund was

afforded additional time during summary judgment proceedings in which he could

have requested a name-clearing hearing. Under our holding in Eames, however,

this consideration is a distinction without a difference. We noted in that case that

the employee might still be entitled to a hearing even if he could prove at trial

that his liberty interest had been violated. Id.

Ms. Miller also argues that Eames is a “30-year-old decision,” Aplt.

Opening Br. at 38, and that decisions in other circuits since Eames have held that

failure to request a name-clearing hearing prior to filing suit waives an

employee’s liberty interest claim. Because Eames has never been overruled,

however, we must follow it notwithstanding its age or contrary authority in other

circuits. See Brown, 400 F.3d at 1256.

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 Finally, Ms. Miller suggests that the better rule is one applied in the related

context of deprivation of a protected property interest, citing Sandoval v. City of

Boulder, 388 F.3d 1312 (10th Cir. 2004). In Sandoval, we held that where an

employee failed to request a hearing to contest a decision not to promote her to an

executive director position, she waived her procedural due process claim by

failing to request the hearing to which she claimed she was entitled. Id. at 1329.

Sandoval was decided in the context of a procedural due process claim and did

not purport to overrule Eames. We therefore agree with the district court that

Eames, not Sandoval, governs here.

B. Statements Made in Course of Termination

Ms. Miller next contends that Mr. Bjorklund failed to show that her

statements to the Tulsa World were made in the course of the termination of his

employment. As the district court noted, in determining whether this element was

met we “must examine both the nature and the timing of [the] allegedly

defamatory statement.” Aplt. App., Vol. VI at 1452 (quoting Renaud v.

Wyo. Dep’t of Family Servs., 203 F.3d 723, 727 (10th Cir. 2000)).

“[P]ublication of defamatory statements need not be strictly

contemporaneous with a termination to occur in the course of the termination of

employment.” Renaud, 203 F.3d at 727. A “roughly contemporaneous

statement[]” made “incident to the termination” that concerns the “manner or

reasons for [the employee’s] termination” may qualify as one made “in the course

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of termination of employment.” Id. (internal quotation marks omitted).

Ms. Miller contends that, irrespective of timing, the statements here fail the

“nature of the statement” test because they had “nothing to do with the reasons

for [Mr. Bjorklund’s] termination.” Id. She argues that Mr. Bjorklund was not

terminated for lying and her accusation that he had lied was therefore irrelevant to

the reason for his termination.

The district court disagreed with this position, however, reasoning that

whether Ms. Miller told Mr. Bjorklund to keep the Big Splash delinquency “off

the radar” was an issue injected into the termination process during the

termination hearing. The district court opined that given the facts alleged by

Mr. Bjorklund “a jury could conclude that [Ms.] Miller’s statements involved the

reasons for [Mr. Bjorklund’s] termination and were made incident thereto.” Aplt.

App., Vol. VI at 1452. Although the district court phrased its decision in terms of

what a jury could conclude, the question of whether Ms. Miller’s statement was

made in the “course of termination of employment,” given Mr. Bjorklund’s

version of the facts, involves an abstract legal issue that we may review in this

interlocutory appeal. Cf. Deutsch, 618 F.3d at 1099 (characterizing question of

whether plaintiff’s testimony was “on a matter of public concern” as an abstract

legal issue reviewable on qualified immunity appeal).

We agree with the district court that the facts alleged by Mr. Bjorklund

satisfy the third element of the Workman test, as explicated in Renaud, which was

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clearly-established law in this circuit at the time of the events in question. The

statements that Ms. Miller made to the newspaper essentially involved

Mr. Bjorklund’s defense against or attempt to mitigate the charges against him

that were asserted during the pre-termination hearing. We also note that

Ms. Miller denied Mr. Bjorklund’s assertions at the hearing rather than simply

dismissing them as irrelevant. We therefore reject Ms. Miller’s contention that

she was entitled to qualified immunity on the basis that her statements were not

made during the course of terminating Mr. Bjorklund’s employment.

C. Statement Made “Under Color of State Law”

Ms. Miller also argues that her statements were not made “under the color

of state law” as required for a liberty interest, “stigma-plus” claim. Aplt.

Opening Br. at 42. “Like the state-action requirement of the Fourteenth

Amendment, the under-color-of-state-law element of § 1983 excludes from its

reach merely private conduct, no matter how discriminatory or wrongful.” Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks

omitted).

Ms. Miller contends that, although the article identified her as a county

commissioner and a member of the TCPFA Board, her statements to the Tulsa

World involved a purely private act in response to an interview initiated by the

newspaper rather than an action taken by Ms. Miller under the color of her

official position. The district court rejected this argument, noting several factors

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that tended to show Ms. Miller was acting under color of state law when she made

the challenged statements:

In the 7/10/08 Article, in which [Ms.] Miller first stated that
[Mr. Bjorklund] had told the newspaper a “blatant lie,” [Ms.] Miller
was identified as a “County Commissioner,” a current member of
“the board,” and the “fair board chairwoman in 2007.” All of
[Ms.] Miller’s comments are directly related to her official role and
duties as a TCPFA Trustee. But for [Ms.] Miller’s position of county
authority, she would have had no occasion to be interviewed or to
make the allegedly stigmatizing comments about [Mr. Bjorklund].
The public battle in this case was between [Mr. Bjorklund] as a
former public employee and [Ms.] Miller as a public official, rather
than some type of personal, private disagreement that was divorced
from [Ms.] Miller’s official duties. Therefore, [Mr. Bjorklund]’s
evidence could show a real nexus between [Ms.] Miller’s statements
and her badge of governmental authority[.]

Aplt. App., Vol. VI at 1454.

We agree with the district court that Mr. Bjorklund made a sufficient

showing that Ms. Miller’s comments were made under color of state law. We

therefore reject Ms. Miller’s argument on this point.

D. Clearly-Established Law

Finally, Ms. Miller argues that it was not clearly established at the time she

made her statements to the Tulsa World that a statement impugning an employee’s

honesty or integrity for reasons other than the specific reasons given for his

termination could violate the employee’s constitutional rights. Specifically, she

asserts that Mr. Bjorklund was not fired for lying and so her subsequent comment

that he lied does not involve a situation in which she took action to terminate his

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employment “based upon a public statement of unfounded charges of dishonesty

or immorality.” Darr v. Town of Telluride, 495 F.3d 1243, 1255 (10th Cir. 2007)

(emphasis added) (quotation omitted).

This argument reads the necessary elements of Mr. Bjorklund’s liberty

interest claim too narrowly. The phrase “based upon” does not import a concept

of strict causation between the statement and the termination. Rather, it was

well-established at the time of the events in question in this case that a liberty

interest claim requires only that the accusations of dishonesty be made “in the

course of terminating the employee.” Workman, 32 F.3d at 481. We have already

stated that under Mr. Bjorklund’s version of the facts, Ms. Miller’s comments

were sufficiently related to the reason he was fired to satisfy this standard. And

we have already supplied clearly-established law to support this understanding.

CONCLUSION

We AFFIRM the district court’s order denying summary judgment to

Ms. Miller on the basis of qualified immunity.

Entered for the Court

John C. Porfilio
Senior Circuit Judge

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