Huntsinger v. Board of Directors of E-470 Public Highway Authority , 35 F. App'x 749 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 6 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
EVA B. HUNTSINGER,
Plaintiff - Appellant, No. 01-1218
v. (D. Colorado)
BOARD OF DIRECTORS OF (D.C. No. 99-S-260)
THE E-470 PUBLIC HIGHWAY
AUTHORITY,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before HENRY , ANDERSON , and MURPHY , Circuit Judges.
Eva B. Huntsinger brought this action under 42 U.S.C. § 1983 against the
Board of Directors of the E-470 Public Highway Authority (“Authority”), alleging
that she was terminated from her employment in violation of her First Amendment
right to speak on a matter of public concern, and that the Authority interfered
with her opportunities for future employment in violation of her Fourteenth
*
This order and judgment is not binding precedent, except under the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.
Amendment substantive due process rights. She also alleged state law causes of
action for breach of express contract and breach of implied contract. The district
court dismissed Ms. Huntsinger’s federal claims pursuant to Fed. R. Civ. P.
12(b)(6), reasoning that Ms. Huntsinger’s complaint did not state claims upon
which relief could be granted. The court then declined to retain supplemental
jurisdiction over Ms. Huntsinger’s state law claims and dismissed them without
prejudice.
On appeal, Ms. Huntsinger reasserts the arguments she presented to the
district court, and also contends that the district court applied the wrong standard
for dismissal under Fed. R. Civ. P. 12(b)(6). In addition, she argues that the
district court abused its discretion by dismissing her state claims. As indicated by
the discussion below, we largely agree with the reasoning of the district court and
affirm.
BACKGROUND
A. Facts
As required by our review of a dismissal pursuant to Fed. R. Civ. P.
12(b)(6), the following facts are taken directly from the allegations contained in
Ms. Huntsinger’s complaint. Ms. Huntsinger is a professionally licensed civil
engineer who worked at the Authority as a Special Projects Engineer from
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February 5, 1996, until her termination on October 8, 1998. The Authority is a
“body corporate and political subdivision of the state of Colorado established in
1987,” and is “responsible for the financing, construction and operation of a toll
highway designated as E-470, located on the eastern perimeter of the Denver
metropolitan area (‘Project’).” Compl. at ¶ 5. Prior to her termination from the
Authority, Ms. Huntsinger’s responsibilities included “work preparatory to the
submission of proposals by consultants . . . , review of [the] same proposals,
response to inquiries regarding development of the [P]roject, and selection of
future consultants for Segment IV of the [Project].” Appellant’s Opening Br.
(“Appellant’s Br.”) at 3 (citing Compl. at ¶ 13). Ms. Huntsinger earned
approximately $90,000 per year, including benefits, and received “nothing but
stellar employment evaluations” prior to her termination. Compl. at ¶ 8.
In the summer and fall of 1998, the Authority received a number of
proposals from bid teams seeking to secure the construction contract for Segment
IV. One such proposal included a consultant by the name of CH2M Hill (“Hill”).
Ms. Huntsinger’s husband worked for Hill for nearly twenty-five years, serving as
its Executive Vice President at the time of his resignation in February 1998. In
connection with his resignation, Mr. Huntsinger received a $296,000 promissory
note (“Note”) from Hill, a large portion of which remained unsatisfied but was
not yet due at the time the Authority received Hill’s proposal.
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Ms. Huntsinger asserts that when she became aware of the Hill proposal on
September 1, 1998, “she became concerned that the Note from Hill to Mr.
Huntsinger potentially created a conflicting interest between the Authority and
Hill.” Id. at ¶ 14. In response, Ms. Huntsinger took it upon herself to “see
whether action could be taken with regard to the Note to remove the potential
conflict.” Id. at ¶ 15. In this regard, Ms. Huntsinger embarked on a series of
communications with various persons associated with both Hill and the Authority:
1. On September 1, 1998, Ms. Huntsinger had two phone
conversations with Mr. Dirk Stauthamer, “Vice President of Human
Resources at Hill, and the person responsible for preparing a
separation agreement between Mr. Huntsinger and Hill.” Id.According to Ms. Huntsinger, the purpose of these conversations was
to “see whether action could be taken with regard to the Note to
remove the potential conflict.” Id.
2. After Ms. Huntsinger spoke with Mr. Stauthamer, she
attempted to contact Mr. Stephen D. Hogan, the Authority’s
Executive Director. When he could not be reached, she called Mr. T.
Edward Icenogle, the Authority’s outside counsel. 1
Ms. Huntsinger
asserts that she “informed [Mr. Icenogle] of her call to Mr.
Stauthamer” and that he told her “that calling Mr. Stauthamer was
the correct approach.” Id. at ¶ 16.
3. On September 8, 1998, Ms. Huntsinger finally spoke with
Mr. Hogan, in person, and informed him “of the potential conflicting
interest.” Id. at ¶ 17. During this meeting, she “presented Mr.
Hogan with a draft letter she had written, for Mr. Hogan’s signature,
to the chief financial officer of Hill, pursuant to which Mr. Hogan
would ask Hill to retire the Note to avoid any potential conflict of
Ms. Huntsinger asserts that this call occurred “approximately fifteen
1
minutes after her first conversation with Mr. Stauthamer.” Compl. at ¶ 16.
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interest.” Id. at ¶ 17. Ms. Huntsinger contends that she “modeled
this draft letter after a similar letter that Mr. Hogan had signed on
behalf of another Authority employee under similar circumstances,”
and that “Mr. Hogan told [her] that he had no problem with her
approach, but that he first wanted to fax the draft to Mr. Icenogle for
his review.” Id. According to Ms. Huntsinger, “[t]he draft was
faxed to Mr. Icenogle,” but “Mr. Hogan never signed or sent [it] to
Hill.” Id.
4. Later on September 8, after her meeting with Mr. Hogan,
Ms. Huntsinger received a facsimile letter from Mr. Wyatt McCallie,
Hill’s general counsel. According to Ms. Huntsinger, Mr. McCallie’s
letter “erroneously stated that Ms. Huntsinger told Mr. Stauthamer
that ‘the conflict could result in [Hill] being removed from the
selection process.’” Id. at ¶ 19. The letter further suggested that Mr.
Huntsinger go ahead and “submit a written request for prepayment of
the Note to Hill’s Board of Directors prior to the next board
meeting.” Id. at ¶ 19. In response to this facsimile letter, Ms.
Huntsinger “left two voice mail messages for Mr. McCallie
describing the errors in his . . . correspondence” and provided him
with a letter of her own, dated September 9, 1998, “describing . . .
that her ‘sole intent . . . [was] to avoid any perceived conflict of
interest relative to [Hill] and her ’ and to look ‘for suggestions by
which we and [Hill] can resolve the issue at hand.’” Id. at ¶ 20(emphasis added).
5. After receiving Mr. McCallie’s facsimile on September 8,
Ms. Huntsinger immediately sent a letter to Mr. Hogan “to reiterate
the potential conflict . . . [and] that she would continue to recuse
herself from the selection process for any work related to Hill.” Id.
at ¶ 21.
6. Finally, Ms. Huntsinger spoke to Mr. Icenogle on October
6, 1998, to inquire whether “he had any discussions regarding the
Note.” Id. at ¶ 24. According to Ms. Huntsinger, Mr. Icenogle
responded that “he had had ‘informal’ communications with Mr.
McCallie,” and that she would “get her marching orders from Matt
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McDole.” 2 Id. at ¶ 24. Ms. Huntsinger contends that she
immediately contacted Mr. McDole, who said “he knew nothing
about it.” Id.On October 8, 1998, two days after the last of these communications,
Ms. Huntsinger received a notice of termination in her office mailbox. In an
October 14, 1998, letter from Mr. Icenogle, “the Authority purported to fully
explicate the basis for [Ms. Huntsinger’s] termination,” stating that she had
“violated four sections of the Authority’s personnel policies.” 3
Id. at ¶ 25. One
such policy stated as follows:
Conflict of Interest : No Employee shall engage in any activity or
enterprise which conflicts with the duties as an Authority Employee
or with the duties, functions, and responsibilities of the Division in
which employed (sic) . . . . Any potential or perceived conflict of
interest must be reported, in advance, to the Executive Director .
Id. at ¶ 12 (citing Authority Personnel Policies, § 5.12) (second emphasis added).
On October 23, 1998, the Authority sent a letter to all consultants
submitting proposals on Segment IV explaining the situation regarding Ms.
Huntsinger’s contacts with Hill. This letter states as follows:
Mr. McDole was the Authority’s chief engineer, and was apparently Ms.
2
Huntsinger’s immediate supervisor. Compl. at ¶ 23.
A pre-termination hearing was held in front of Mr. McDole, who affirmed
3
Ms. Huntsinger’s termination in a one paragraph decision on November 23, 1998.
Compl. at ¶ 27. Subsequently, a post-termination hearing was held in front of the
Authority’s acting Executive Director, who affirmed Mr. McDole’s decision on
January 8, 1998. Id.
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This letter is to advise you of a situation which has occurred in
connection with the Authority’s Segment IV procurement. There has
been an unauthorized contact by an Authority employee with one
member of a team responding to the Authority’s Segment IV Request
for Qualification by stating its qualifications to propose on the
finance/design/build of Segment IV of E-470.
An employee of the Authority, who may have been considered for a
minor role in reviewing segment IV proposals, contacted one of the
Segment IV respondents and requested that, in order to resolve a
perceived conflict of interest, one of the members of the responding
team pay a debt owed, but not yet due, to the employee’s spouse.
The Authority has conducted a thorough investigation of this matter.
The Authority assures you that this employee has not been involved
in any review of Segment IV statements of qualification and will not
be involved in any future review of Segment IV proposals or in the
administration of the contract, if awarded. The Authority wishes to
further state all of its staff and consultants will be instructed that no
prosper is to be favored or disfavored by the Authority as a result of
that employee’s unauthorized contact or any consequences of that
contact.
Id. at ¶ 28 (quoting the Authority’s October 23, 1998, letter).
2. Procedure
Ms. Huntsinger filed suit against the Authority on or about February 8,
1999, claiming that the Authority had “no legal or factual basis for [its] position”
that she violated four sections of the Authority’s personnel policies, id. at ¶ 25,
and that she was terminated as a result of her efforts to “resolve the potential
conflict(s) of interest” with Hill. Id. at ¶ 31. In her first claim for relief against
the Authority, Ms. Huntsinger asserts that her “actions in attempting to resolve
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the potential conflict(s) of interest were protected by the First Amendment to the
United States Constitution,” id. , and that the Authority terminated her “in
retaliation” for her exercise of her First Amendment rights, in violation of 42
U.S.C. § 1983. Id. at ¶ 33. Ms. Huntsinger’s claim in this regard is based
entirely on the six instances of communication described above.
Ms. Huntsinger’s second claim for relief, entitled “Substantive Due
Process,” alleges that the Authority “took action to terminate [her] based on the
October 23 1998 [letter],” id. at ¶ 31, that the letter “seriously damaged [her]
standing and associations in the community and foreclosed her freedom to take
advantage of future employment opportunities,” id. at ¶ 38, and that she was
thereby “deprived . . . of her liberty interest in her employment in violation of the
Fourteenth Amendment to the United States Constitution,” also in contravention
of 42 U.S.C. § 1983. Id. at ¶ 39. Ms. Huntsinger further asserted two state law
claims alleging that the Authority breached either an express or an implied
contract of employment. Id. at ¶¶ 41-54.
In April 1999, the Authority filed its motion to dismiss Ms. Huntsinger’s
federal causes of action. Regarding Ms. Huntsinger’s First Amendment claim, the
Authority argued that “Ms. Huntsinger cannot meet the threshold requirement of
showing that her alleged speech involved a matter of public concern.” Def’s Mot.
for Partial Dismissal at 5, App. at 42. Regarding her Substantive Due Process
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claim, the Authority asserted that she had no claim for deprivation of a liberty
interest under the Fourteenth Amendment because, as a matter of law, she “can
prove no set of facts establishing that [the October letter] falsely stigmatized her,
impugning her good name, reputation, honor, or integrity, or curtailing her future
employment opportunities.” Id. at 9, App. at 46.
The Authority’s motion was referred to a magistrate judge pursuant to 28
U.S.C. § 636(b). After considering the briefs and hearing argument from the
parties, the magistrate judge issued a detailed and comprehensive report
recommending the dismissal of Ms. Huntsinger’s federal claims. Ms. Huntsinger
filed the appropriate objections to the magistrate judge’s recommendations,
advancing additional arguments as to why her First Amendment claims should not
be dismissed, and relying on her original opposition brief with respect to her
Substantive Due Process claim. Upon de novo review of the parties’ filings,
including Ms. Huntsinger’s objections, the district court adopted the
recommendations of the magistrate judge and dismissed Ms. Huntsinger’s federal
claims.
With regard to Ms. Huntsinger’s First Amendment claim the district court
concluded that “Ms. Huntsinger’s communications . . . about a potential conflict
of interest was [sic] not sufficiently helpful in evaluating the conduct of [the]
government so as to constitute speech on a matter of public concern,” and was
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“instead speech primarily addressed to a matter of personal interest.” Order at 9,
App. at 149. Regarding Ms. Huntsinger’s Substantive Due Process claim, the
district court adopted the magistrate judge’s conclusion that the “plaintiff has not
shown that the statements made in the October 23, 1998 letter are false or that, if
false, they directly attack plaintiff’s character and reputation.” Recommendation
of Magistrate Judge at 11, App. at 105; see also Order at 4, App. at 144.
DISCUSSION
I.
“We review de novo the district court’s dismissal for failure to state a claim
upon which relief can be granted.” Dill v. City of Edmond , 155 F.3d 1193, 1201
(10th Cir. 1998) (citing Pelt v. Utah , 104 F.3d 1534, 1540 (10th Cir. 1996)). In
so doing, we consider the complaint as a whole, accepting all well-pleaded factual
allegations as true, and construing those allegations, and all reasonable inferences
therefrom, in the light most favorable to Ms. Huntsinger as the non-moving party.
Id. ; Dry v. United States , 235 F.3d 1249, 1252 (10th Cir. 2000); David v. City &
County of Denver , 101 F.3d 1344, 1352 (10th Cir. 1996). Dismissal is
“inappropriate unless [Ms. Huntsinger] can prove no set of facts in support of
[her] claims that would entitle [her] to relief.” Dill , 155 F.3d at 1201. In
conducting our analysis, however, we need not accept as true any conclusory
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allegations contained in the complaint, Southern Disposal, Inc. v. Texas Waste
Mgmt. , 161 F.3d 1259, 1262 (10th Cir. 1998), and a party may not overcome
pleading deficiencies by advancing arguments on appeal that extend beyond the
actual allegations contained in the complaint. Bauchman v. West High School ,
132 F.3d 542, 550 (10th Cir. 1997). Applying these standards of review, we
address each of Ms. Huntsinger’s Section 1983 claims in turn.
A. First Amendment
In order to state a cognizable claim for wrongful termination in violation of
the employee’s First Amendment right to speak on a matter of public concern, the
complaint must contain allegations of fact that, if proved, would establish certain
required elements. First, the complaint must allege facts sufficient to demonstrate
that Ms. Huntsinger’s alleged speech was actually protected, as a matter of law,
by the First Amendment. The threshold question in this protection analysis is
whether Ms. Huntsinger’s alleged speech can be “‘fairly characterized as
constituting speech on a matter of public concern.’” Koch v. City of Hutchinson ,
847 F.2d 1436, 1440 (10th Cir. 1988) (quoting Rankin v. McPherson , 483 U.S.
378, 384 (1987) (further quotations omitted)). Second, the complaint must allege
facts sufficient to prove that Ms. Huntsinger’s protected speech “was a
‘substantial factor’ or a ‘motivating factor’ in the [Authority’s] adverse
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employment decision.” Ballard v. Moskogee Reg. Med. Ctr. , 238 F.3d 1250,
1252 (10th Cir. 2001) (quoting Mount Healthy City Sch. Dist. Bd. of Ed. v.
Doyle , 429 U.S. 274, 287 (1977)).
“Matters of public concern are those of interest to the community, whether
for social, political or other reasons.” Dill , 155 F.3d at 1201. For instance,
“[w]hile speech pertaining to internal personnel disputes and working conditions
ordinarily will not involve public concern . . . , ‘speech that seeks to expose
improper operations of the government or questions the integrity of governmental
officials clearly concerns vital public interests.’” Finn v. New Mexico , 249 F.3d
1241, 1247 (10th Cir. 2001) (quoting Conaway v. Smith , 853 F.2d 789, 797 (10th
Cir. 1988) (emphasis added) (further citations omitted)). The essential question,
therefore, is “‘whether the public or the community is likely to be truly concerned
with or interested in the particular expression, or whether it is more properly
viewed as essentially a private matter between employer and employee.”’
Edwards v. City of Goldsboro , 178 F.3d 231, 247 (4th Cir. 1999) (quoting Berger
v. Battaglia , 779 F.2d 992, 999 (4th Cir.1985) (internal quotation marks
omitted)). In performing this inquiry, we must consider “the content, form and
context of a given statement.” Connick v. Myers , 461 U.S. 138, 147-48 (1983).
The district court concluded for two reasons that Ms. Huntsinger’s
complaint did not state a cognizable claim that her alleged speech qualified as
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speech on a matter of public concern that was protected by the First Amendment.
First, the district court concluded that, taken as a whole, the complaint
demonstrates that Ms. Huntsinger’s speech was motivated by primarily personal
interests. Second, the district court concluded, in substance, that the complaint
contained no allegations of corruption or ineptitude on the part of the Authority
that would warrant protection of the speech in question. Upon de novo review,
we agree with the district court and add the following reasoning: 4
Beginning with Ms. Huntsinger’s first call to Hill on September 1, it is
clear that her stated purpose was personal. The complaint shows that instead of
following the requirements of the Authority’s personnel policies and simply
informing Authority executives about her perceived conflict of interest with Hill,
so that they could investigate and handle it according to Authority protocol, she
took it upon herself to call Hill. In that call, she suggested that a conflict might
exist with respect to how Hill’s bid might be treated by the Authority (without
sufficiently alleging how her position within the Authority or her job duties would
4
In so doing, we reject Ms. Huntsinger’s contention that the district court
“misapplied the standard of review,” failing to give her the benefit of all
reasonable inferences. Appellant’s Br. at 10-11. The district court specifically
stated that Ms. Huntsinger’s speech failed to qualify for First Amendment
protection, “even assuming all the well-pleaded allegations of Ms. Huntsinger’s
complaint are true, and giving her the benefit of all reasonable inferences that
may be drawn from such allegations.” Order at 10, App. at 150. Regardless of
whether Ms. Huntsinger agrees or disagrees with the district court’s ultimate
conclusions, the court clearly applied the appropriate standards.
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actually create such a conflict), and proposed, at that time, only one way to
resolve the “conflict,” i.e, early retirement of the Note. The complaint does not
allege that Ms. Huntsinger, at any time during this initial conversation with Hill,
ever proposed another method of resolving the perceived conflict, such as
disclosure and/or her own removal from the bid process. Furthermore, Ms.
Huntsinger’s call to Hill was not to the person at Hill actually responsible for the
bid on Segment IV, but was instead to the Vice President of Human Resources,
the same person who drafted her husband’s separation agreement, which included
the Note.
Even after she finally informed her supervisors at the Authority of the
situation, she did not seek their guidance on whether a conflict actually existed,
explore alternative solutions or request instructions on how to proceed in the
event there was an actual conflict, or even consider whether the matter should be
left to higher level Authority executives to investigate and resolve the conflict as
they saw fit. Rather, she informed them of what she had already done, and urged
them to resolve what she saw as a conflict only through early retirement of the
Note. She also continued to have personal, direct and unauthorized contact with
Hill representatives. As indicated above, the factual recitations in the complaint,
taken as a whole, demonstrate that Ms. Huntsinger was not focused on resolving a
potential conflict for the benefit of the public good and the good of the Agency,
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but was intent on resolving her conflict solely in a way which served her personal
interests.
In response, Ms. Huntsinger contends that the issue is one of motive, and
that questions regarding her motive cannot be resolved on a motion to dismiss.
She argues that “[e]stablishing motive nearly always requires extensive factual
and credibility determinations not appropriate for disposition absent the
presentation of evidence.” Appellant’s Br. at 11. But, that is not the decisive
issue in this case. The question of whether or not speech touches upon a matter
of public concern is a question of law, Dill , 155 F.3d at 1202, and the motive
aspects of this inquiry can be resolved without evidence, on a motion to dismiss,
where, as here, plaintiff can prove no facts to establish that her motive for
speaking was other than personal. See Witt v. Roadway Exp. , 136 F.3d 1424,
1431 (10th Cir. 1998) (dismissal under Rule 12(b)(6) appropriate where “it
appears that the plaintiff can prove no set of facts in support of the claims that
would entitle the plaintiff to relief”) (internal quotations omitted).
Ms. Huntsinger also contends that her speech was not motivated solely by
personal interest, but that she spoke with a “‘broader public purpose.’”
Appellant’s Br. at 17 (quoting Gardetto v. Mason , 100 F.3d 803, 812 (10th Cir.
1996)). Relying on Jandro v. Foster , 53 F. Supp. 2d 1088 (D. Colo. 1999) and
Finn , 249 F.3d 1241, Ms. Huntsinger argues that her speech was motivated at
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least partially by a desire to “speak on an issue of public concern, equivalent to
the legitimate concerns of other members of the public, regarding the operations
of the government.” Appellant’s Br. at 16. We are not persuaded. As already
discussed, we conclude that Ms. Huntsinger’s complaint, taken as a whole,
demonstrates that her speech related solely to her personal interests. Her case is
not at all like Jandro and Finn , where it was determined that the plaintiffs had a
mixed motive, speaking on personal matters as well as matters which qualified
under the law as matters of public interest deserving of First Amendment
protection. 5
It is significant that Ms. Huntsinger’s complaint is entirely devoid of any
allegations of corruption or malfeasance on the part of the Authority that would
entitle her speech to protection under the First Amendment. 6
Although the
5
See Finn, 249 F. 3d at 1248 (noting that although “many portions of
plaintiff’s speech dealt with matters of purely personal interest,” they also
“sought to expose the allegedly illegal nature of the Department’s reorganization,
the lack of integrity and qualifications of the Department’s management,
ineptitude of the Department’s management, loss of Department funds due to
management’s poor decision-making, and the impact of [a manager’s] alleged
affair with a subordinate on his decision to promote that subordinate”); Jandro, 83
F. Supp. 2d at 1096 (“The allegations of plaintiff’s complaint create an inference
that plaintiff was motivated, at least in part, by a desire to vindicate his wife’s
personal interests; however, an inference can be drawn that plaintiff was also
motivated by a concern similar to that shared by other citizens. . . .”).
In response to questions at oral argument, counsel for Ms. Huntsinger
6
suggested for the first time that Ms. Huntsinger’s speech was intended to uncover
general corruption within the Authority, insinuating, perhaps, that the Authority
(continued...)
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purpose of her third communication was to inform Mr. Hogan of the perceived
conflict and to propose action for its resolution, the purpose of the fifth
communication was to inform Mr. Hogan that she would refrain from working on
Segment IV proposals until after the perceived conflict was resolved, and the
purpose of her sixth communication was to follow up with the Authority’s outside
counsel regarding whether there had been any further communications with Hill
or any further action taken on the Note. She never once alleged in any of her
communications that the Authority ever urged her to drop the issue, refused to
address the matter, attempted to cover-up or avoid the perceived conflict, acted to
improperly benefit from her perceived conflict with Hill, had a history of corrupt
practices relating to this kind of alleged conflict, or otherwise acted with
malfeasance or ineptitude in violation of the public trust or Authority policies.
Cf. Gardetto v. Mason , 100 F.3d at 812-15 (holding that speech motivated
primarily by the speaker’s personal interest “in maintaining her staff,” or
involving matters related to “internal budgetary decision[s]” did not qualify for
first amendment protection, but that speech involving the “electoral process,” the
6
(...continued)
engaged in a general practice of mishandling conflicts of interest. However, her
complaint contains no allegations to support such a theory. See, e.g., Dean Witter
Reynolds, Inc. v. Howsam, 261 F.3d 956, 960 (10th Cir. 2001) (“[I]t is generally
unacceptable for a court to [look beyond the four corners of the complaint] when
deciding a Rule 12(b)(6) motion to dismiss”).
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“integrity, qualifications, and misrepresentations of a highly visible public
official,” the general “expenditures of public funds,” or the “overall management
of the public institution” was protected); Withiam v. Baptist Health Care of Okla. ,
98 F.3d 581, 583 (10th Cir. 1996) (holding that speech that “offered nothing at all
to inform the public about the management of the [public] hospital” and that did
not expose “government ineptitude, waste or corruption” did not qualify for First
Amendment protection).
Indeed, the factual allegations contained in Ms. Huntsinger’s complaint
show that the Authority did not have a pattern of mishandling or ignoring
potential conflicts. Ms. Huntsinger alleges that the letter she drafted for Mr.
Hogan’s signature on September 8 was modeled after a letter he sent in a similar
situation, suggesting that he had taken affirmative action in the past to address
potential conflicts where they actually arose and where such action was deemed
an appropriate remedy. Likewise, she alleges that the Authority sent the October
23 letter to all Segment IV bid teams explaining the employee’s unauthorized
contact with a bidder and assuring the bid participants that the situation would not
inappropriately influence the decision-making process, demonstrating that the
Authority was ready, willing and able to address conflicts if and when they arose.
Having read the complaint as a whole, it is apparent that Ms. Huntsinger’s
complaint is not with the Authority’s handling of conflicts in general, but with the
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way the Authority handled her personal situation, because they did not resolve it
in the particular manner she desired. We infer from the allegations in the
complaint that it was not until this lawsuit, which naturally occurred only after
she had been terminated, that Ms. Huntsinger ever spoke out publicly about any
supposed problems within the Authority, or ever criticized or questioned the way
in which the Authority was handling potential conflicts. 7
In defense of the omissions in her complaint, Ms. Huntsinger asserts on
appeal that although there was no actual corruption or misapplication of funds in
this particular case, she was acting “early in the process to avoid the perception
that a breach of public trust had been committed.” Appellant’s Br. at 22. She
essentially argues that the law should be extended to protect not only speech
relating to active government misconduct, but also to speech made as a supposed
preemptive strike against possible misconduct. She cites no controlling authority
for this proposition, however, and we reject it as presented here.
7
On appeal, Ms. Huntsinger notes that “one need not speak publically in
order to receive First Amendment protection,” suggesting that we may not
consider the private nature of her speech to preclude First Amendment protection.
Appellant’s Br. at 15. We disagree. Although private speech may, in an
appropriate circumstance, qualify as protected speech, see Conaway, 853 F.2d at
797, we may nonetheless consider the private versus public nature of the alleged
speech as a non-dispostive factor in concluding that the plaintiff was not speaking
on a matter of public concern and that her speech is therefore not entitled to
protection under the First Amendment.
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In sum, Ms. Huntsinger’s complaint does not allege speech on a matter of
public concern because her alleged speech did not “sufficiently inform the issue
as to be helpful to the public in evaluating the conduct of government,” Wilson v.
City of Littleton , 732 F.2d 765, 768 (10th Cir. 1984), and provided nothing to the
“free and unhindered debate on matters of public importance,” Pickering v. Board
of Ed. , 391 U.S. 563, 573 (1968). Accordingly, on de novo review of the
complaint we conclude, as did the district court, that Ms. Huntsinger’s allegations
do not make out a First Amendment claim upon which relief can be granted.
B. Substantive Due Process
In order to state a cognizable claim that the Authority violated Ms.
Huntsinger’s liberty interest, the complaint must contain allegations of fact that,
if proved, would establish that “‘[the Authority] took action to terminate [Ms.
Huntsinger] based upon a public statement of unfounded charges of dishonesty or
immorality that might seriously damage [Ms. Huntsinger’s] standing or
associations in the community and foreclose [her] freedom to take advantage of
future employment opportunities.’” Garcia v. City of Albuquerque , 232 F.3d 760,
771 (10th Cir. 2000) (quoting Palmer v. City of Monticello, 31 F.3d 1499, 1503 (10th
Cir. 1994) (internal quotations omitted)) (emphasis added) . Specifically, the
complaint must contain allegations sufficient to prove that “‘(i) the defendant
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made a statement impugning [the employee’s] good name, reputation, honor or
integrity[,] (2) the statement was false[,] (3) the defendant made the statement in
the course of the termination proceedings or the statement foreclosed future
employment opportunities[,] and (4) the statement was published.’” Id. at 772
(quoting Tonkovich v. Kansas Bd. of Regents , 159 F.3d 504, 526 (10th Cir.
1998)).
In dismissing Ms. Huntsinger’s Substantive Due Process claim, the district
court adopted the conclusions of the magistrate judge, finding that Ms.
Huntsinger’s complaint did not allege sufficient facts as to the first two required
elements, i.e., that the statements made in the October 23 letter “are false or that,
if false, they directly attack plaintiff’s character and reputation.”
Recommendation of Magistrate Judge at 11, App. at 105; Order at 4, App. at 144.
With regard to the truth or falsity of the October 23 letter, the court concluded as
follows:
[T]he court finds that plaintiff has not demonstrated that the
statements in the letter are false. The letter simply recites the facts
that the Authority did not authorize the contact plaintiff had with
Hill, that an employee requested that the team member pay the debt
owed to the employee’s spouse and that the employee had not been
involved in the review of Segment IV statements of qualification.
See Comp. ¶ 28. Plaintiff does not allege that these events did not
occur. Indeed, plaintiff further avers in her complaint that she
drafted a letter for the use of the Authority’s executive director to
Hill’s chief financial officer, in which plaintiff requested that the
note be retired to avoid any potential conflict of interest.
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Recommendations of Magistrate Judge at 10, App. at 104. With regard to
whether the October 23 letter tainted Ms. Huntsinger’s good name and/or
reputation, the court made the following findings:
Plaintiff also fails to set forth facts alleging that the letter impugned
her good name, reputation or integrity. The letter does not identify
plaintiff and does not accuse her of anything other than an
unauthorized contact. Plaintiff affirmatively pleads that she
contacted Hill and others with respect to the promissory note.
Plaintiff has not alleged facts to demonstrate that the letter has
harmed her reputation in the community.
Id. at 10-11, App. at 104-05. Upon de novo review of the complaint we agree
with these conclusions of the district court. We further point out that (i) Ms.
Huntsinger avers in her complaint that she indeed contacted Hill prior to
receiving authorization from her supervisors at the Authority, (ii) nothing in the
complaint or the letter itself alleges that Ms. Huntsinger engaged in any act of
dishonesty or immorality, (iii) Ms. Huntsinger’s complaint does not allege that
Ms. Huntsinger actually sought and was denied employment with any of the
companies to whom the letter was sent. Accordingly, we conclude, as did the
district court, that the allegations in Ms. Huntsinger’s complaint, taken as a
whole, do not make out a Substantive Due Process claim upon which relief can be
granted.
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II.
As indicated above, after the district court dismissed Ms. Huntsinger’s
federal claims, it declined to retain supplemental jurisdiction over her state law
claims, dismissing them without prejudice. Such a dismissal is within the
discretion of the district court under 28 U.S.C. § 1367(c)(3). See also Bauchman
v. West High Sch. , 132 F.3d 542, 549 (10th Cir. 1997) (citing Carnegie-Mellon
Univ. v. Cohill , 484 U.S. 343, 350 (1988)); Key Fin. Planning Corp. v. ITT Life
Ins. Corp. , 828 F.2d 635, 644 (10th Cir. 1987).
On appeal, Ms. Huntsinger asserts that the district court abused its
discretion because “discovery had essentially been completed on the breach of
contract . . . claims.” Appellant’s Br. at 27. She argues that “the court essentially
forces the parties to duplicate substantial effort in the state court,” and that this is
a “very inefficient and wasteful method of resolving disputes.” Id. at 27-28.
Although “the nature and extent of pretrial proceedings, judicial economy,
convenience, and fairness” may be relevant in deciding whether or not to exercise
supplemental jurisdiction, Thatcher Enter. v. Cache County. Corp. , 902 F.2d
1472, 1478 (10th Cir. 1990), nothing prevents the parties in this case from
agreeing to utilize any discovery already obtained in any future state court
proceeding. See Harrison v. Landmark Comm. Pub. of Tenn., Inc ., 892 F. Supp.
199, 201 (E.D. Tenn. 1995). Furthermore, this is not a case where the parties had
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completed all necessary pre-trial proceedings, or actually tried their case to a jury.
See Tonkovich v. Kansas Bd. of Regents, 254 F.3d 941, 945 (10th Cir. 2001)
(finding no abuse of discretion “given the relative lack of pretrial proceedings”).
Cf. Jones v. Intermt. Pwr. Proj. , 794 F.2d 546, 549 (10th Cir. 1986), overruled on
other grounds by Yellow Freight Sys., Inc. v. Donnelly , 494 U.S. 820, 822
(1990)) (holding that once trial has been held, “this court will order dismissal of a
pendent claim . . . only when the federal cause of action was so insubstantial and
devoid of merit that there was no federal jurisdiction to hear it”). On these facts,
we cannot conclude that the district court abused its discretion by dismissing the
state law claims without prejudice.
CONCLUSION
For the reasons set forth above, the judgment of dismissal is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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