Harvey v. Baker ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 27, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
STEVEN H AR VEY ; AR LEN
N O RBY; D A V ID G RIFFITH ,
Plaintiffs-C ounter-Claim
Defendants-Appellants,
v. No. 06-2278
(D.C. No. CIV-04-401-W DS-RH S)
M ICHAEL BAKER, (D . N.M .)
Defendant-Appellee,
CITY OF RIO RANCHO, a political
subdivision,
Defendant-
Counterclaimant-
Appellee.
OR D ER AND JUDGM ENT *
Before HA RTZ, EBEL, and T YM KOVICH, 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)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Plaintiffs Steven Harvey, Arlen Norby, and David Griffith appeal from the
district court’s grant of summary judgment in favor of defendants M ichael Baker
and the City of Rio Rancho (“City”). W e have jurisdiction pursuant to 28 U.S.C.
§ 1291 and AFFIRM .
I.
Plaintiffs are police-officer employees of the City’s D epartment of Public
Safety (“DPS”), as well as members and former officers of the Department of
Public Safety Association (“Union”). Defendant Baker was formerly the Director
of DPS. Plaintiffs brought claims under 42 U.S.C. § 1983, alleging that
defendants retaliated against them for exercising their First Amendment rights of
free speech and association with the Union. After the close of discovery,
defendants moved for summary judgment. The district court granted defendants’
motions and denied plaintiffs’ motion for reconsideration. On appeal, plaintiffs
contend that the district court erred in concluding that they did not engage in any
“speech,” in ignoring their associational claims, and in resolving material
disputed issues of fact.
W e review de novo a district court’s grant of summary judgment, using the
same legal standard applied by the district court. Deschenie v. Bd. of Educ. of
Cent. Consol. Sch. Dist. No. 22, 473 F.3d 1271, 1276 (10th Cir. 2007). Under
Fed. R. Civ. P. 56(c), summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
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affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law .” W e view all
evidence and draw all reasonable inferences in favor of the nonmoving parties.
Deschenie, 473 F.3d at 1276. “In cases involving the First Amendment, an
appellate court has an obligation to make an independent examination of the
whole record in order to make sure that the judgment does not constitute a
forbidden intrusion on the field of free expression.” Id. (quotation omitted).
This court applies a four-part test to determine whether a public employer
retaliated against a public employee in violation of his First Amendment rights.
First, this court must determine whether the employee’s speech
involves a matter of public concern. Second, if this threshold
requirement is satisfied, this court then balances the employee’s
interest in commenting upon matters of public concern against the
interest of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees. Third, if the
employee’s interest outweighs that of the government, the employee
then must show that the speech was a substantial factor or a
motivating factor in the detrimental employment decision. Fourth, if
the employee shows the protected speech was a substantial factor, the
burden shifts to the employer to show it would have taken the same
action against the employee even in the absence of the protected
speech.
Id. (quotations and citations omitted). After the district court granted summary
judgment in this case, this court clarified the application of this test when the
plaintiff alleges retaliation by a public employer based on the employee’s
association with his union. See Shrum v. City of Coweta, 449 F.3d 1132, 1139
(10th Cir. 2006). W e held that a court should not require a showing of “public
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concern” or engage in judicial balancing of the employer’s interest against the
employee’s interest when the employee alleges retaliation for participation in a
union with which his employer has signed a collective bargaining agreement.
See id.II.
W e will address each plaintiff’s contentions in turn, as the facts pertaining
to their individual claims of retaliation differ. But we first consider one common
contention of all three plaintiffs: that they engaged in constitutionally-protected
speech by “repeatedly [bringing] their concerns regarding anti-union retaliation to
the attention of Rio Rancho City Councilman [M ichael] W illiams.” Aplt. Br. at
2-3. All three plaintiffs rely solely on a brief excerpt from M r. W illiams’
deposition testimony to support their allegations of having engaged in protected
speech. He stated that during the two-year period of 2000 and 2001, Union board
members including, but not limited to, M r. Harvey, M r. Norby, and M r. Griffith,
raised issues with him, which he described as follows: “Anti–basically, it was
anti-union activity by the chief, transfers. I remember there was one issue about
promotions.” Aplt. App. at 161-62. M r. W illiams also indicated that by “the
chief” he was referring to Chief Baker. Id. at 162. Plaintiffs acknowledge that
M r. W illiams’ testimony provides no details regarding what each Union board
member actually reported. See Aplt. Br. at 7-8 (“no specific w ords are
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identified”). But they assert that the evidence is “undisputed” on this issue. See
id. at 11-12. Plaintiffs misconstrue their burden on summary judgment.
“Plaintiffs seeking to overcome a motion for summary judgment may not
rest on mere allegations in their complaint but must set forth specific facts
showing that there is a genuine issue for trial.” Trevizo v. Adams, 455 F.3d 1155,
1159 (10th Cir. 2006) (quotations omitted). The question for this court on
summary judgment is “not whether there is literally no evidence, but whether
there is any upon which a jury could properly proceed to find a verdict for the
party producing it, upon whom the onus of proof is imposed.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251 (1986) (quotation omitted). Evidence
relied upon in opposition to summary judgment “may be insufficient to create a
triable fact if it is nonspecific or otherwise non-responsive, vague, conclusory, or
self-serving.” Piercy v. M aketa, 480 F.3d 1192, 1197-98 (10th Cir. 2007).
In Trevizo, we affirmed summary judgment against ten plaintiffs who failed
to put forth deposition testimony or affidavits regarding the details of what had
happened to them in support of their § 1983 claim for violation of their civil
rights. 455 F.3d at 1160. W e held that the evidence they did produce–which
consisted of “vague, generalized statements from others”–was insufficient to
carry their burden on summary judgment. Id. W e noted that the record was
particularly deficient in light of the time that they had to prepare their case and
the granting of summary judgment on the eve of trial. Id. Similarly, in M itchell
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v. City of Moore, 218 F.3d 1190 (10th Cir. 2000), we affirmed summary judgment
against the plaintiff on his § 1983 First Amendment retaliation claim where he
“[failed] to specifically mention even one instance of speech [he engaged in]” and
asserted only that “[p]laintiff engaged in union activity.” Id. at 1199 (quotation
omitted).
W e reach the same conclusion in this case with respect to the plaintiffs’
allegations of their reports of anti-union activity by Chief Baker, supported only
by vague, non-specific testimony of M r. W illiams. That testimony is insufficient
on its own to create a genuine issue of material fact with respect to any of the
individual plaintiff’s claims that he engaged in protected speech. Notably,
although defendants’ summary judgment motions were filed after the close of
discovery and within months of the scheduled trial, there is no evidence in the
record from any of the three plaintiffs themselves–either in the form of deposition
testimony or by affidavit–as to what he reported to M r. W illiams and when he
made such report.
Therefore, we hold that plaintiffs have failed to support this claim of
protected speech with sufficient evidence to demonstrate a genuine issue of
material fact. See Trevizo, 455 F.3d at 1160; see also Ford v. West, 222 F.3d 767,
777 (10th Cir. 2000) (affirming summary judgment in Title VII case alleging
hostile work environment where plaintiff’s claim was “vague and conclusory,
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without reference to specific dates or circumstances”); Adler v. Wal-M art Stores,
Inc., 144 F.3d 664, 674 (10th Cir. 1998) (same).
III.
M r. Norby
M r. Norby relies on an additional contention of protected speech and
conduct in support of his claim of retaliation: his participation in a
Union-sponsored initiative petition drive. During the period of M arch through
M ay, 2001, the Union campaigned for a City charter amendment that would
increase pay for police officers and set minimum staffing levels within DPS. A t
that time, M r. Norby was president of the Union. He also presented evidence that
he made public statements about the petition drive, which were quoted in the
media. See Aplt. App. at 41. He testified in his deposition that City officials,
including Chief Baker, opposed the Union’s campaign. Id. at 49. He described
the petition drive as a “negotiations ploy,” indicating,
W e never intended it to go to a vote. All we ever intended it for was
to get the city to actually negotiate w ith us seriously about money. It
was a ploy from day one, and they were very resentful about the way
we were handling it.
Aplee. Supp. App. at 79. The Union’s petition drive was ultimately unsuccessful.
M r. Norby claims that he was denied a promotion in retaliation for his
participation in the petition drive. Three months after the drive ended, in A ugust
2001, the City issued a job posting for the position of Lieutenant in DPS. It is
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undisputed that DPS had only five available Lieutenant positions during the time
period relevant to M r. Norby’s claim. M r. Norby and M r. Griffith both tested for
the position. In September, Chief Baker posted the eligibility list for promotions
to Lieutenant. M r. G riffith ranked fourth on the list and M r. N orby ranked sixth.
Neither M r. Norby nor M r. Griffith contends–nor did they present any
evidence–that the testing/assessment process which determined the rankings for
Lieutenant promotions was unfair or retaliatory, or constituted an adverse
employment action with respect to them. The first four officers on the list were
promoted to Lieutenant within the next few months–including M r. Griffith, who
was promoted in December 2001.
A Lieutenant position next became available in DPS in January 2002. A t
that time the fifth officer on the eligibility list was on active military duty, so the
City held the position open for him until he returned to his employment with DPS.
M r. Norby contended that, in the other officer’s absence, he should have been
moved to the top of the eligibility list and promoted. Chief Baker testified that he
believed the City was required by federal law to hold the position open for the
officer on military duty. 1 W hen asked why he decided not to promote M r. Norby
at that time, he said, “It was based on [federal law] that I decided to promote [the
fifth officer on the eligibility list], or I should say I knew I needed to have a
1
See the Uniformed Services Employment and Reemployment Rights Act of
1994, 38 U.S.C. §§ 4301-4334.
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vacancy or I needed to have a position for [him]. So it was based on that [federal
law].” Id. at 71. Chief Baker informed M r. N orby of the basis for his decision.
M r. Norby was ultimately the next officer promoted to Lieutenant when another
opening for that position became available in April 2003.
M r. Norby first argues that the district court erred in concluding that he
failed to demonstrate protected speech on a matter of public concern in
connection with his participation in the petition drive. He asserts that, because he
alleged retaliation based on his protected right of association with the Union,
under Shrum he did not need to show speech on a matter of public concern. See
449 F.3d at 1139. W e need not reach this issue because M r. Norby has presented
insufficient evidence to raise a triable fact issue as to the third and fourth prongs
of the four-part test for First Amendment retaliation.
The third prong requires a plaintiff to demonstrate an adverse employment
action. M aestas v. Segura, 416 F.3d 1182, 1188 n.5 (10th Cir. 2005). 2 Assuming
for purposes of this appeal that defendants’ failure to promote M r. Norby in
January 2002 was an adverse employment action, the third prong also required
him to show that his protected speech or conduct “was a substantial motivating
2
The district court held that M r. Norby failed to establish an adverse
employment action because he did not show that he was legally entitled to the
promotion. Even if that conclusion is wrong, we can affirm on any ground if the
record is sufficient to permit conclusions of law, even grounds not relied upon by
the district court. Bell v. Bd. of County C omm’rs of Jefferson County, 451 F.3d
1097, 1102 n.5 (10th Cir. 2006).
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factor in the employer’s decision to adversely alter [his] conditions of
employment.” Id. at 1188. He must present sufficient evidence linking the
failure to promote to his prior protected speech and activity. See id.There is no evidence establishing that causal link here–either directly or by
reasonable inference. The evidence demonstrates that the failure to promote
occurred at least seven months after M r. Norby’s participation in the Union’s
petition drive. Thus, there is no inference of causation based on a “close
temporal proximity between the speech and challenged action.” Id. at 1189.
M oreover, although M r. Norby presented evidence that defendants opposed
the petition drive, see id., he failed to demonstrate a pattern of retaliatory conduct
beginning soon after his protected speech or conduct, from which a jury could
infer that his participation in the drive w as a motivating factor in the adverse
employment action, see Marx v. Schnuck M arkets, Inc., 76 F.3d 324, 329
(10th Cir. 1996). In fact, the evidence demonstrates that both M r. Norby and
M r. Griffith were subsequently placed fairly on the eligibility list for promotion
to Lieutenant, and that M r. Griffith was quickly promoted to that position. W here
M r. Griffith was not denied a promotion, despite his participation in the same
protected speech or conduct as M r. Norby, the evidence fails to support an
inference of causation. See Burns v. Bd. of County C omm’rs of Jackson County,
330 F.3d 1275, 1287 (10th Cir. 2003) (no inference of causation on claim of
retaliation for protected speech where other employee also spoke out publicly
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against department policies, but was not terminated); M itchell, 218 F.3d at 1200(no inference of causation on claim of retaliation for union activity where
employees hired to replace plaintiff were past union presidents).
M ost importantly, M r. Norby does not question Chief Baker’s explanation
for failing to promote him as insincere or pretextual. See Montgomery v. City of
Ardmore, 365 F.3d 926, 939 (10th Cir. 2004) (affirming summary judgment on
First Amendment retaliation claim where plaintiff offered no evidence that
reasons given for employment decision were pretextual); Deschenie, 473 F.3d at
1278 (same). Instead, he testified that he thought defendants’ legal interpretation
was w rong: “I believe the law says [the officer on military duty] is entitled to
that promotion upon his return to the department. It says nothing about holding
the position open w hile he’s gone.” Aplee. Supp. App. at 80-81. And he also
admitted that the City could have promoted the other officer in absentia–which
would have led to the same outcome as holding the position open. W e are left,
then, only with M r. Norby’s speculation that he w as not promoted in January
2002 in retaliation for his participation in the petition drive the previous year.
“Speculation or hunches admidst rumor and innuendo will not suffice.” M aestas,
416 F.3d at 1189.
Nor has M r. Norby presented any evidence to rebut the defendants’
evidence that they would have made the same decision not to promote M r. Norby
in January 2002 in the absence of his protected speech and conduct. See Orr v.
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City of Albuquerque, 417 F.3d 1144, 1154-55 (10th Cir. 2005) (affirming
summary judgment on First Amendment retaliation claim where evidence was
insufficient to demonstrate genuine issue of material fact on fourth prong). In the
district court, in response to Chief Baker’s explanation why he did not promote
M r. Norby, he asserted only that “Defendant Baker went so far as to violate the
collective bargaining agreement [“CBA”] in order to keep from promoting
Norby.” A plt. App. at 23. But he did not cite to any evidence to support this
contention, even failing to submit the CBA itself. On appeal, M r. Norby contends
that “[d]efendants have never disputed that their failure to promote [him] violated
the [CBA].” Aplt. Br. at 10. Once again, he misconstrues his burden in opposing
summary judgment.
In short, M r. Norby has failed to demonstrate any material fact in dispute
regarding his claim of retaliation for exercising his First Amendment rights.
M r. Griffith
M r. Griffith spearheaded the petition drive along with M r. Norby, although
unlike M r. Norby, the record is devoid of evidence of any statements he made in
connection with that activity. Once again, we will assume that M r. Griffith
sufficiently demonstrated protected activity based on his participation in the
petition drive. He likewise claims that he was retaliated against because of that
activity, contending that he w as denied a promotion to Captain in April 2003. H e
does not claim that the selection process between himself and the other candidate
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was tainted by retaliation. He asserts instead that Chief Baker eliminated the
educational requirement for the Captain position, so that he would not be the sole
candidate eligible to apply. Thus, M r. Griffith claims that Chief Baker altered a
long-standing requirement for promotion to Captain in order to deny him that
promotion, in retaliation for his union activities.
The evidence indicates that, but for the elimination of the educational
requirement, the other candidate promoted to Captain instead of M r. Griffith
would not have been eligible to apply for that position. Chief Baker testified that
he changed that requirement for two reasons: (1) in order to carry through certain
reduced qualifications, which had been negotiated with the Union, to the positions
of Captain and Deputy Chief, consistent with the progression of qualifications for
the lower level positions covered by the CBA; and (2) in order to address the
situation of police officers dropping out of the competitive promotional process
because of the backlog of officers who wanted to attend the police management
schools, but had not yet been able to do so. M r. Griffith did not present any
evidence disputing Chief Baker’s stated reasons for deleting the educational
requirements. In fact, he testified that there were waiting lists for the limited
classes. See Aplee. Supp. App. at 90.
In the district court M r. Griffith contended that the Captain requirements
were changed in 2003, between the time that the position became available and
when it was formally posted–thus implying that Chief Baker made the changes
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realizing that M r. Griffith would otherwise be the only eligible candidate. But as
the district court noted, the record does not support that contention because the
undisputed evidence showed that the changes were made no later than
November 6, 2001, per updated DPS Standards and Procedures issued on that
date. See id. at 231.
M r. Griffith argues on appeal that the evidence nonetheless supports an
inference that Chief Baker’s decision was retaliatory. He notes that
“[s]ignificantly, Baker altered the requirements months after Griffith had
participated in the petition drive.” Aplt. Br. at 15-16. Although the evidence of
the timing of Chief Baker’s deletion of the education requirement for promotion
to Captain does place that change closer to M r. Griffith’s alleged protected
activity, there is still no close, temporal proximity to support an inference of
causation. See Maestas, 416 F.3d at 1189. M oreover, M r. Griffith was promoted
to Lieutenant without incident within a month of the communication of the new
Captain requirements, despite his participation in the petition drive, negating any
inference of a pattern of retaliatory conduct.
In sum, we agree with the district court that “there is not a scintilla of
evidence suggesting that the educational requirements w ere changed [in 2001] in
anticipation of G riffith’s testing for Captain in 2003.” A plt. App. at 177. There
is simply no reasonable inference that could be made to support a jury finding
that M r. Griffith’s union activity was a substantial motivating factor in that
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decision. See Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1321 (10th Cir.
1999) (“Courts are not required to evaluate every conceivable inference which
can be drawn from evidentiary matter, but only reasonable ones.”) (quotation and
alteration omitted), overruled on other grounds by Nat’l R.R. Passenger Corp. v.
M organ, 536 U.S. 101 (2002).
M r. H arvey
The facts alleged by M r. Harvey in support of his claim differ from the
circumstances of the other two plaintiffs’ claims because he did not participate in
the petition drive in 2001.
M r. Harvey had been president and vice president of the Union in the late
1990s. During that time period he also began working as the Coordinator for the
New M exico Gang Task Force (“Task Force”). The Task Force was funded by
federal grant money and the City acted as the fiscal agent for the grant. For
several years M r. Harvey was assigned primarily to DPS functions, and in
addition he worked part time as the Task Force Coordinator, for which he
received a stipend. In 2001 he began working full time as the Task Force
Coordinator. A year later, the City transferred fiscal agent responsibility to the
New M exico Department of Public Safety. The Task Force asked that M r. Harvey
continue as the Coordinator, indicating it would reimburse the City for his salary,
stipend, and benefits.
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The City then offered M r. Harvey an agreement for conditions of continued
employment as a term employee (“Agreement”). The Agreement provided that he
would work under the supervision of the Task Force executive board, but would
continue to comply with City work rules and operating procedures. It allowed
him to be reinstated as a regular employee of the City under certain
circumstances, including the availability of a vacant position in DPS. Chief
Baker decided that the A greement would not address the effect of M r. Harvey’s
term employment on his seniority rights under the CBA. But the Agreement
provided that he would not be a member of the Union bargaining unit and would
not be eligible for any pay raises authorized by the city council. 3 He signed the
Agreement in August 2002.
During the term of the Agreement, M r. Harvey became Union president
again in January 2003. Consequently, Chief Baker informed M r. Harvey that he
thought he was in breach of the provision precluding him from being a member of
the Union bargaining unit. Chief Baker raised this issue with the city
administrator, the city attorney and the city council, but no action was taken to
terminate the Agreement. Chief Baker nonetheless testified that he did not intend
3
W hile the Agreement was being drafted, Chief Baker indicated in an email
that, as a contract employee, M r. Harvey would not be a Union member and
w ould therefore not be eligible for pay raises that Union members received. H e
also later testified that he did not know why the Agreement precluded M r. Harvey
from being in the Union bargaining unit, but that he believed the City’s personnel
policies stipulated that term employees could not be in the bargaining unit.
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to renew the Agreement, which was scheduled to expire by its own terms on June
30, 2003, based in part on his belief that M r. Harvey was in breach. But the
record does not reflect when Chief Baker made this decision or when he
communicated it to M r. Harvey.
M r. Harvey claims that he engaged in protected speech in February 2003,
for w hich defendants retaliated against him. Sometime during the previous month
he had received a copy of a letter accusing Chief Baker of wrongdoing. The letter
was signed by Todd Sutterman and had been originally sent to the City’s mayor
almost a year earlier in M arch 2002 (“Sutterman Letter”). In his role as Union
president, M r. Harvey sent an email to the mayor asking if there had been an
investigation into the allegations. W hen he did not receive a response, he
forw arded the Sutterman Letter to the City Council members and local media in
February 2003. M r. Harvey asserts that it is undisputed that Chief Baker was
angry with him over his distribution of the Sutterman Letter.
In April 2003, M r. Harvey sent Chief Baker a memo, electing to be
reinstated in his regular position as a detective in DPS. He testified that he made
this decision because Chief Baker advised him that DPS w ould be at full staff
within two weeks and the A greement only provided for his reinstatement if there
was a vacant position. Rather than requiring him to transition back to a detective
position immediately, Chief Baker allow ed him to continue in his role as Task
Force Coordinator through June 30. In M ay, M r. Harvey sought permission to
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continue his Task Force coordinator role as secondary employment. Chief Baker
approved that request, with the condition per department policy that he could not
use DPS equipment. M r. Harvey disagreed with that condition, but his request to
arbitrate was denied by the C ity. He then filed an application for a preliminary
injunction in state court challenging the condition, which that court ultimately
dismissed.
For purposes of this appeal, we assume without deciding that M r. Harvey
engaged in protected speech by circulating the Sutterman Letter. O n appeal,
M r. Harvey claims that he suffered two adverse employment actions:
First, Baker forced Harvey into an employment contract (forgoing a
city pay raise and seniority rights) in order to maintain his [Task
Force] position. Then, a year later, Baker told Harvey that he would
not renew the [Agreement] (because Harvey was the union
president). Baker subsequently forced Harvey to choose between
continuing as a DPS employee or an employee of the [Task Force].
These are adverse employment actions and should have precluded
summary judgment.
Aplt. Br. at 14. The first alleged adverse employment action–“forcing”
M r. Harvey to enter into the Agreement in 2002–occurred seven months before he
circulated the Sutterman Letter, and therefore could not have been in retaliation
for his exercise of First Amendment rights.
Nor has he presented evidence to support his second allegation of an
adverse employment action. 4 There is evidence that M r. Baker questioned
4
W e note that M r. Harvey did not make this second argument regarding an
(continued...)
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whether the Agreement permitted M r. Harvey to be Union president, but
defendants did not terminate the Agreement and he served out his term as Union
president. Although Chief Baker testified that he did not intend to renew the
Agreement, the record does not reflect when he made that decision or when he
communicated it to M r. H arvey.
M r. Harvey argues on appeal that “adverse employment action” is liberally
construed in the context of a First Amendment retaliation claim. But there must
be some action by the employer that is adverse to the employee. See Baca v.
Sklar, 398 F.3d 1210, 1220 (10th Cir. 2005) (“An employee alleging retaliation
must show that his employer took some adverse employment action against
him.”). We agree with the district court that regardless of Chief Baker’s
intentions with respect to renewal of the Agreement, that issue became moot when
M r. Harvey elected to return to regular employment within DPS. Addressing his
decision to transfer back to his detective position within DPS, he testified:
I only did so after meeting with M ike Baker and being advised that
there was no longer going to be any open staffing positions. I think
w hen w e met, he said actually that we would be full staff within two
4
(...continued)
adverse employment action in the district court. See Aplt. App. at 19 (arguing
that his demotion from lieutenant to detective, inability to retest for lieutenant,
and relinquishment of seniority rights and bargaining unit membership, were
adverse employment actions). Ordinarily, we would conclude that he has waived
his right to raise this issue on appeal. See W alker v. M ather (In re Walker),
959 F.2d 894, 896 (10th Cir. 1992) (declining to consider issue not raised in
district court). But because the district court addressed the issue and he is
responding to the district court’s decision, we address the merits of the argument.
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weeks, and that’s basically what urged this prompting is that, in
keeping with the wording in the contract, that I could only go back if
there was, in fact, an open position.
Aplee. Supp. App. at 320. Notably, M r. Harvey did not testify that his decision
hinged on Chief Baker’s intentions regarding renewal of the Agreement. As the
district court concluded, the evidence showed that he made that decision in order
to avoid the risk of losing his position with DPS.
The evidence, moreover, does not support M r. Harvey’s contention that his
decision to invoke his right under the Agreement to seek reinstatement was an
adverse employment action imposed upon him by defendants. See Exum v. U.S.
O lym pic C om m ., 389 F.3d 1130, 1135-36 (10th Cir. 2004) (rejecting plaintiff’s
attempt to recast his voluntary decision to resign as constructive discharge
amounting to adverse employment action). Finally, the evidence also does not
support his contention that he was “forced” to choose between employment with
the City and continuing to work for the Task Force, because the City approved his
application for secondary employment as the Task Force Coordinator.
Accordingly, M r. Harvey has failed to demonstrate a material fact in
dispute regarding whether he suffered an adverse employment action in retaliation
for exercising his First Amendment rights.
IV.
Because no material facts are in dispute regarding the plaintiffs’ claims of
retaliation for exercise of their First Amendment rights, the judgment of the
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district court and the district court’s denial of plaintiffs’ motion for
reconsideration are A FFIR ME D.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
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