Blackford v. Employment Board ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 4 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
PAUL E. BLACKFORD,
Plaintiff-Appellant,
No. 96-3378
v.
(D.C. No. 95-CV-2550)
(D. Kan.)
EMPLOYMENT SECURITY BOARD
OF REVIEW,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Appellant Paul E. Blackford filed this action pursuant to 42 U.S.C. § 1983against Appellee Kansas Employment Security Board of Review ("the Board").
The United States District Court for the District of Kansas granted summary
judgment in favor of the Board. Mr. Blackford appeals the district court's order,
and we affirm.
Mr. Blackford was a security officer for Jefferson National Bank,
Charlottesville, Virginia, until he was terminated on June 7, 1991. Thereafter,
Mr. Blackford moved to Overland Park, Kansas, and filed for unemployment
benefits. His initial request was granted. However, Jefferson National Bank
appealed the grant of unemployment benefits, and a teleconference hearing was
held by a referee of the Kansas Secretary of Human Resources. The referee
determined Mr. Blackford had been terminated for misconduct connected with his
work. Consequently, the referee concluded Mr. Blackford could not collect
unemployment benefits until he was reemployed "and has had earnings from
insured work of at least three times the individual's determined weekly benefit
amount." See Kan. Stat. Ann. § 44-706(b) (1993). Although the teleconference
hearing was recorded, there were problems with the recording and only one-third
of the conference was transcribed.
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The referee's decision was affirmed by the Board, the District Court of
Shawnee County, Kansas, and the Court of Appeals of the State of Kansas. The
Supreme Court of the state of Kansas denied Mr. Blackford's petition for review.
In December 1995, Mr. Blackford filed his complaint against the Board
with the United States District Court for the District of Kansas. The district court
entered summary judgment in favor of the Board in September 1996. Mr.
Blackford then initiated this appeal, pro se.
We review the grant or denial of a motion for summary judgment de novo,
applying the same legal standard used by the district court pursuant to Fed. R.
Civ. P. 56(c). Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir.
1995). Under Rule 56(c), summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show 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. P.
56(c). An issue of material fact is genuine where a reasonable jury could return a
verdict for the party opposing summary judgment. Wolf, 50 F.3d at 796 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In applying the
summary judgment standard, we examine the factual record and reasonable
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inferences therefrom in the light most favorable to the nonmovant. Wolf, 50 F.3d
at 796.
Although Mr. Blackford's appellate brief is not perfectly clear, he appears
to argue the Board violated his due process rights under the Fourteenth
Amendment. Specifically, Mr. Blackford alleges the following violations: (1) the
telephonic hearing was not completely recorded; (2) he was not advised the
hearing was not completely recorded until the Kansas Court of Appeals issued its
decision; and (3) neither the Board nor any other court helped Mr. Blackford
obtain certain travel vouchers and receipts of expenses and charges from
Jefferson National Bank. Mr. Blackford claims the travel vouchers and receipts
would have allowed him to prevail in his lawsuit for unemployment benefits.
We believe the district court properly determined Mr. Blackford could not
establish a violation of his due process rights. In granting summary judgment in
favor of the Board, the district court stated:
To determine if a constitutional violation occurred under § 1983, "it
is necessary to ask what process the State provided, and whether it
was constitutionally adequate." Zinermon v. Burch, 494 U.S. 113,
126 (1990) .... Plaintiff's claims have made their way through the
agency procedure according to K.S.A. § 44-709, and through every
level of the state court system. Both the District Court of Shawnee
County, Kansas, and the Court of Appeals of the State of Kansas
found substantial competent evidence in the record to hold that
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Plaintiff was terminated for misconduct associated with his job.
Therefore, Plaintiff's claim for deprivation of due process fails
because the process he received was all that he was due.
Blackford v. Kansas Employment Sec. Bd. of Review, 938 F. Supp. 739, 741 (D.
Kan. 1996) (citations omitted). We agree. Although the telephonic hearing was
only partially recorded, we do not believe this error resulted in an impairment of
Mr. Blackford's due process rights. Nor do we believe the Board's failure to help
Mr. Blackford obtain the travel vouchers and receipts violated Mr. Blackford's
due process rights. The Board was under no duty to obtain Mr. Blackford's
evidence for him. Thus, we conclude Mr. Blackford received adequate process in
the Kansas court system. 1
Mr. Blackford also argues the district court erred by failing to address
whether he is entitled to unemployment benefits pursuant to Kan. Stat. Ann. § 44-
706(b). According to Mr. Blackford, he was employed in 1991 in Lakewood,
California by Edward's Insurance Adjusting and Investigations. Because he
earned more than $660.00 in insured and bonded work, Mr. Blackford contends he
is now eligible for unemployment benefits. Unfortunately for Mr. Blackford, the
issue of whether he is now entitled to unemployment benefits under Kan. Stat.
1
To the extent Mr. Blackford argues his due process rights were violated
by the accrual of interest on the initial award of benefits that was divested from
Mr. Blackford, we find no merit to this contention.
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Ann. § 706(b) does not fall within the federal courts' diversity jurisdiction or
federal question jurisdiction. See 28 U.S.C. §§ 1331, 1332 (1994). Hence, the
district court did not err by failing to address this issue. If Mr. Blackford truly
believes he is entitled to unemployment benefits, he should pursue such benefits
in the Kansas court system, not federal court.
Based on the foregoing reasons, we affirm the district court's entry of
summary judgment in favor of the Board.
Entered for the Court
WADE BRORBY
United States Circuit Judge
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