Ney v. City of Hoisington ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
February 6, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
DEBRA K. NEY,
Plaintiff-Appellant,
No. 07-3086
v. (D.C. No. 05-CV-4059-JAR)
(D. Kan.)
CITY OF HOISINGTON, KANSAS;
HOISINGTON POLICE
DEPARTMENT; KENTON DOZE;
ALLEN DINKEL,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and ANDERSON, Circuit Judges.
Ms. Debra Ney appeals from a district court order that granted the
Defendants-Appellees’ motion for summary judgment in her employment-
termination case. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
B ACKGROUND
Ms. Ney worked as a clerk for the City of Hoisington’s Police Department
and Municipal Court. In 1998, she reported to authorities that the chief of police
had child pornography on his computer. The City eventually terminated the chief
and made Mr. Kenton Doze acting chief.
Ms. Ney claims that Mr. Doze retaliated against her for reporting the police
chief by reprimanding her and making her working conditions “extremely
hostile.” Aplt. App. at 126. In April 1999, Ms. Ney’s doctors “took [her] off of
work for seven months” because she “had an emotional breakdown.” Id. The
City wrote Ms. Ney a letter, suggesting that she complete the paperwork
necessary to qualify the leave under the Family and Medical Leave Act (FMLA),
29 U.S.C. § 2601-2654. She forwarded the letter to her attorney, who then told
the City that the FMLA did not apply to her leave:
For your information, the [FMLA] does not apply in this case. The
FMLA would require the City of Hoisington to allow Ms. Ney to take
up to 12 weeks of unpaid leave if she didn’t have any earned sick
leave and needed or wanted time off for one of the reasons allowed
by the federal law. The FMLA has absolutely nothing to do with
Ms. Ney’s situation and the employee has to request the time off
through the Act, which Ms. Ney did not do and didn’t need to do.
Ms. Ney is taking sick leave through her accumulated sick leave she
earned as a job benefit from 16 years of service to the City of
Hoisington. Ms. Ney chose to use her paid sick leave and accrued
vacation and not take time off pursuant to the FMLA; therefore, the
Act does not apply.
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Aplt. App. at 199 (brackets and ellipsis omitted). 1
When Ms. Ney returned to work at the end of 1999, the keys to her building
had been changed, her file cabinet was gone, she was assigned “to work in a
closet,” and she was given an extraordinary amount of work. Id. at 127. Further,
Mr. Doze and the new city manager, Mr. Allen Dinkel, regularly “yelled to [her],
accused [her] of things and berated [her] for hours.” Id. Mr. Doze also changed
her work schedule, requiring her to work Fridays and certain evenings.
In March 2003, Ms. Ney told Mr. Doze and Mr. Dinkel that her doctor had
advised her not to attend meetings with them unless her husband or doctor were
present. The advice from Ms. Ney’s doctor was intended for her “legal
protection” and “emotional support.” Id. at 51-52. Mr. Dinkel agreed, but on the
condition that the support person not speak during the meeting. During a meeting
in March, Ms. Ney’s husband was present. He refused, however, to abide by
Mr. Dinkel’s condition, interjecting himself into the conversation.
On May 8, 2003, Ms. Ney refused to attend a meeting with Mr. Dinkel
because she could not contact her husband or doctor. Mr. Dinkel terminated her
1
Contrary to the views expressed in the letter, FMLA leave is not dependent
upon the absence of earned leave. Specifically, “when an employee’s leave
qualifies both under the FMLA and under the employer’s paid leave policy[,] the
employer may either permit the employee to use his FMLA leave and paid sick
leave sequentially, or the employer may require that the employee use his FMLA
leave entitlement and his paid sick leave concurrently.” Strickland v. Water
Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1205 (11th Cir. 2001);
accord Slentz v. City of Republic, 448 F.3d 1008, 1010 (8th Cir. 2006).
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on May 12, 2003, when she again refused to attend a meeting. The city council
upheld the termination.
Ms. Ney sued the City, the Police Department, Mr. Doze, and Mr. Dinkel
(collectively, the City). She alleged that her termination violated the FMLA’s
anti-retaliatory provision, the federal constitution’s equal-protection and
due-process clauses, and state whistleblowing law. She also alleged that she was
defamed by a city employee’s statement that she was “crazy.” Id. at 33. The
district court granted the defendants summary judgment on the federal claims and
declined to exercise supplemental jurisdiction on the state claims. Ms. Ney
appeals. 2
D ISCUSSION
I. Standards of Review
“We review the district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court.” Darr v. Town of
Telluride, 495 F.3d 1243, 1250 (10th Cir. 2007). Summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the 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.” Fed. R. Civ. P. 56(c). In determining whether a
2
Ms. Ney does not challenge the district court’s declination of supplemental
jurisdiction.
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genuine issue of material fact exists, we draw all reasonable inferences in favor of
the party opposing summary judgment. Curtis v. Okla. City Pub. Schs. Bd. of
Educ., 147 F.3d 1200, 1214 (10th Cir. 1998). 3
II. FMLA Retaliation
Ms. Ney claims that she was fired in retaliation for taking seven months of
FMLA leave. The FMLA grants “an eligible employee . . . a total of 12
workweeks of leave during any 12-month period” if the employee is unable to
perform the functions of her position due to a serious health condition. 29 U.S.C.
§ 2612(a)(1)(D). The FMLA also prohibits employers from retaliating against
employees who exercise their rights under the statute. See 29 U.S.C.
§ 2615(a)(2).
FMLA-retaliation claims are subject to the burden-shifting analysis
developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Metzler
v. Fed. Home Loan Bank, 464 F.3d 1164, 1170 (10th Cir. 2006).
Under this analysis, the plaintiff bears the initial burden of
establishing a prima facie case of retaliation. If the plaintiff does so,
3
In her reply brief, Ms. Ney appears to challenge the district court’s decision
to disregard her summary-judgment affidavit statements that were not based on
personal knowledge or supported by other portions of the summary-judgment
record. “But we do not consider arguments raised for the first time on appeal in a
reply brief.” Hutton Contracting Co. v. City of Coffeyville, 487 F.3d 772, 788
(10th Cir. 2007). In any event, we note that the district court properly concluded
that summary-judgment affidavits must be based on personal knowledge and that
statements of mere belief must be disregarded. Argo v. Blue Cross & Blue Shield
of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006). We proceed on this
well-settled premise.
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then the defendant must offer a legitimate, non-retaliatory reason for
the employment action. The plaintiff then bears the ultimate burden
of demonstrating that the defendant’s proffered reason is pretextual.
Id. (citations omitted).
A. Prima Facie Case
To state a prima facie case of retaliation, Ms. Ney must show that (1) she
engaged in protected activity; (2) a reasonable employee would have found the
City’s action materially adverse; and (3) there is a causal connection between her
protected activity and the City’s adverse action. Id. at 1171. The district court
concluded that Ms. Ney’s prima facie case failed on the first element because she,
through her lawyer, rejected taking the time off as FMLA leave. On appeal,
Ms. Ney argues that the rejection is irrelevant, because the mere fact that she took
sick leave meant that she engaged in a protected activity. We disagree. The mere
use of sick leave does not implicate the FMLA; rather, the FMLA comes into play
when there is a serious health condition that prevents the employee from
performing her work. See 29 U.S.C. § 2612(a)(1)(D). Consequently, the
employee must provide “notice sufficient to make the employer aware that the
employee needs FMLA-qualifying leave.” 29 C.F.R. § 825.302(c); see also id.§ 825.303(b). This notice triggers the employer’s right to require a doctor’s
certification confirming that the employee truly has a serious health condition.
See 29 U.S.C. § 2613(a); 29 C.F.R. § 825.305(a). Leave taken by an employee
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who fails to provide requested certification “is not FMLA leave.” 29 C.F.R.
§ 825.312(b).
Here, Ms. Ney’s attorney told the City in no uncertain terms that Ms. Ney
did not want FMLA coverage for her leave. She was thus able to take leave
without being subjected to the City’s right to insist on a doctor certifying the
seriousness of her health condition. We are unaware of any authority that permits
an employee to bypass the FMLA’s notice and certification provisions.
Accordingly, we conclude that Ms. Ney did not engage in a protected activity
when she took sick leave and insisted that the FMLA not apply. 4
Even if Ms. Ney’s leave was protected under the FMLA, her prima facie
case would still fail because there is no evidence of a causal connection between
her leave in 1999 and her termination in May 2003. This temporal span is far too
long to suggest any connection between the two events. See Meiners v. Univ. of
Kan., 359 F.3d 1222, 1231 (10th Cir. 2004) (noting that a three-month period
between protected activity and adverse action is insufficient, standing alone, to
show causation). Apparently aware of the lack of independent causal evidence,
she attempts to shorten the temporal span between protected activity and adverse
4
Ms. Ney claims that she rejected FMLA coverage only because the City
was threatening to withhold pay if she took the time off. While this claim might
be actionable as an attempt to interfere with the exercise of Ms. Ney’s FMLA
rights, see 29 U.S.C. § 2615(a)(1), she did not assert an interference claim in the
pretrial order and thereby waived any such claim. Cortez v. Wal-Mart Stores,
Inc., 460 F.3d 1268, 1276-77 (10th Cir. 2005).
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action. She contends that the City’s adverse action is the harassment she
allegedly endured upon returning from leave in 1999. She also contends that the
protected activity is leave she took in January 2003. But neither the harassment
nor the 2003 leave were mentioned in the pretrial order. See Aplt. App. at 27-28,
30-33, 35-36. Claims omitted from the pretrial order are waived. Cortez,
460 F.3d at 1276-77.
B. Pretext
If we proceed even further to assume that Ms. Ney has made out a prima
facie case of retaliation, there is no triable issue of fact as to pretext, the final
step of the burden-shifting analysis. An employee “can show pretext by revealing
such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of credence.”
Mickelson v. New York Life Ins. Co., 460 F.3d 1304, 1315 (10th Cir. 2006)
(quotation omitted). “A pretext argument requires the court to examine the facts
as they appear to the person making the decision, to determine whether the
employer honestly believed those reasons and acted in good faith upon those
beliefs.” Berry v. T-Mobile USA, Inc., 490 F.3d 1211, 1220 (10th Cir. 2007)
(quotation omitted). Although we “must resolve all doubts in [the employee’s]
favor, mere conjecture that the employer’s explanation is pretext is insufficient to
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defeat summary judgment.” Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1225
(10th Cir. 2007) (quotation and alteration omitted).
The City asserts that Ms. Ney was fired for insubordination in refusing to
meet with Mr. Dinkel. Ms. Ney argues that the City’s proffered reason is
pretextual because Mr. Dinkel had agreed to allow her to have a support person
present during meetings, and there was no support person available for a meeting
on May 8 or May 12. It is undisputed, however, that there was a support person
available on May 9, and Ms. Ney made no attempt to meet with Mr. Dinkel that
day. Further, Mr. Dinkel could have reasonably concluded that Ms. Ney no
longer had any right to insist on a support person’s attendance, given that in the
only meeting in which Ms. Ney brought a support person, that person refused to
abide by the condition under which he was allowed to be present. We conclude
that no rational factfinder could discredit the City’s proffered reason for
terminating Ms. Ney.
Summary judgment was properly entered on Ms. Ney’s FMLA-retaliation
claim.
III. Equal Protection
The Fourteenth Amendment’s Equal Protection Clause provides that “[n]o
state shall . . . deny to any person within its jurisdiction the equal protection of
the laws.” U.S. Const. amend. XIV, § 1. “The Equal Protection Clause prohibits
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state and local governments from treating similarly situated persons differently.”
Rector v. City & County of Denver, 348 F.3d 935, 949 (10th Cir. 2003).
Ms. Ney argues that she was treated differently than male employees, who
committed worse infractions than she did but without suffering any adverse
consequences. Specifically, she asserts that a police officer “was having sex in
the back seat of [a] patrol car” and that “[m]ale employees could freely curse all
they wanted to.” Aplt. Br. at 44-45. 5 Ms. Ney’s equal-protection claim fails for
two reasons.
First, Ms. Ney is not similarly situated to the police officer who allegedly
had sex in his patrol car. No adverse action was taken against the officer because
he denied the incident and Mr. Doze could not, after an investigation, confirm
that it even occurred. Ms. Ney’s refusal to meet with her superiors, on the other
hand, was apparent. She is also not similarly situated to the cursing employees,
as her refusal to meet with her superiors constitutes far greater misconduct.
Second, the McDonnell Douglas burden-shifting framework applies to
equal-protection claims in the employment context. See Burns v. Bd. of County
Comm’rs, 330 F.3d 1275, 1283 (10th Cir. 2003). As we concluded above
5
Ms. Ney also asserts that a second police officer “violated citizen’s civil
rights on a regular bases [sic], slashed the tires of a police car and committed
serious violations of the law.” Aplt. Br. at 45. But that officer was, like
Ms. Ney, terminated for his misconduct.
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regarding Ms. Ney’s FMLA-retaliation claim, there is no triable issue of pretext
surrounding her termination.
Summary judgment was properly entered against Ms. Ney on her
equal-protection claim.
IV. Procedural Due Process
Ms. Ney argues that her procedural-due-process rights were violated
because she was not given a pre-termination hearing and “not allowed to present
witnesses or evidence” when the city council reviewed her termination. Aplt. Br.
at 48. “In determining whether an individual has been deprived of [the
Fourteenth Amendment] right to 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.” Farthing v. City of Shawnee, 39 F.3d
1131, 1135 (10th Cir. 1994). We conclude that Ms. Ney’s claim fails at step one.
“[U]nder Kansas law, public employment is presumptively at-will” and
does not qualify for procedural-due-process protections. Id. at 1136. Ms. Ney
asserts, however, that she had a property interest in her City employment because
a former city manager once said that she was a “permanent employee” and
because she was not required to sign an at-will agreement that other employees
signed. Aplt. App. at 98-99. While a protected-property interest can arise from
an implied or written agreement that the employee will not be terminated except
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for cause, see Farthing, 39 F.3d at 1135, no such agreement is present here.
Ms. Ney references no written agreement. And to establish an implied agreement,
she must show “[a] mutual intent to form a contract.” Panis v. Mission Hills
Bank, N.A., 60 F.3d 1486, 1492 (10th Cir. 1995). The former city manager’s
statement that Ms. Ney was a “permanent employee” means only that she had
“a steady job of some permanence, as distinguished from a temporary job or
temporary employment.” Johnson v. Nat’l Beef Packing Co., 551 P.2d 779, 782
(Kan. 1976); see also Wiggins v. Housing Auth. of Kan. City, 916 P.2d 718, 721
(Kan. Ct. App. 1996). The fact that Ms. Ney was not required to sign an at-will
agreement when other employees were, does not by itself show the City’s intent
to transform her at-will employment into employment terminable only for cause.
Much more is necessary to show an implied agreement. See Panis, 60 F.3d
at 1492-93 (listing various factors relevant to “implied in fact” agreements,
including “written or oral negotiations, the conduct of the parties from the
commencement of the employment relationship, the usages of the business, the
situation and objective of the parties giving rise to the relationship, the nature of
the employment, and any other circumstances surrounding the employment
relationship which would tend to explain or make clear the intention of the parties
at the time said employment commenced”). Even if the City’s failure to have her
sign an at-will agreement led her to believe that her employment was something
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more than at-will, “[a] unilateral expectation on the part of the employee does not
create an implied-in-fact contract for continued employment.” Id. at 1492.
Summary judgement was properly entered on Ms. Ney’s procedural-due-
process claim.
V. Substantive Due Process
“A public employee with a property interest in continued employment has a
substantive-due-process right not to be terminated for arbitrary or capricious
reasons.” Darr, 495 F.3d at 1257. Because Ms. Ney had no property interest in
her employment with the City, her claim fails. We also conclude that even if she
had a protected interest, no reasonable jury could find that her termination for
refusing to meet with her superiors was “arbitrary, irrational, or shocking to the
contemporary conscience.” Id. “The Due Process Clause of the Fourteenth
Amendment is not a guarantee against incorrect or ill-advised personnel
decisions.” Curtis, 147 F.3d at 1215 (quotation and citation omitted).
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Accordingly, the district court did not err in granting summary judgment
against Ms. Ney on her substantive-due-process claim.
C ONCLUSION
The judgment of the district court is AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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