Trant v. Medicolegal Investigations

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 15, 2011
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
COLLIE M. TRANT,
Plaintiff-Appellant,
v. No. 10-6247
(D.C. No. 5:10-CV-00555-C)
STATE OF OKLAHOMA; BOARD (W.D. Okla.)
OF MEDICOLEGAL
INVESTIGATIONS; OFFICE OF THE
CHIEF MEDICAL EXAMINER;
DEWAYNE ANDREWS, in his
individual and official capacities;
DOUGLAS STEWART, in his
individual and official capacities;
ROCKY MCELVANY, in his
individual and official capacities; C.
MICHAEL OGLE, in his individual
and official capacities; CHARLES
CURTIS, in his individual and official
capacities; KARLIS SLOKA, in his
individual and official capacities;
CHRIS FERGUSON, in his individual
and official capacities; SHANDA
MCKENNY, in her individual and
official capacities; CHEROKEE
BALLARD, in her individual and
official capacities; SANDRA
BALZER, in her individual and
official capacities; TOM JORDAN, in
his individual and official capacities,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before O’BRIEN, ANDERSON, and HOLMES, Circuit Judges.
After his termination as Chief Medical Examiner for the State of Oklahoma
(CME), plaintiff Collie M. Trant filed suit in state court against various entities
and officers, claiming that his termination violated state and federal law. Citing
the presence of federal claims brought against individual officers under 42 U.S.C.
§ 1983, defendants removed the action to federal court, see 28 U.S.C. § 1441, and
then moved to dismiss those claims based on qualified immunity. The district
court granted the motion and, declining to exercise supplemental jurisdiction
under 28 U.S.C. 1367, remanded the remaining claims to state court. Mr. Trant
appeals both aspects of the court’s decision. For the reasons set forth below, we
affirm in part, reverse in part, and remand for further proceedings.
I. FACTUAL BACKGROUND
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
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The facts summarized here are taken, as they must be when qualified
immunity is raised in connection with a motion to dismiss, from the four corners
of the (amended) complaint. Archuleta v. Wagner, 523 F.3d 1278, 1281
(10th Cir. 2008). The Oklahoma Board of Medicolegal Investigations (Board),
which controls and supervises the Office of the Chief Medical Examiner (OCME),
appointed Dr. Trant as CME in May 2009. At that time, OCME was being
investigated for sexual harassment and improper employee-overtime claims.
Dr. Trant alleges he soon discovered that the person investigating the sexual
harassment, Jill Kinney, was actually encouraging employees to advance
unfounded harassment allegations and to make the suspect overtime claims. He
directed OCME’s executive administrator, defendant Cherokee Ballard, to relate
the information to appropriate law enforcement officials. Later, Ms. Ballard
allegedly told him she had been advised by defendant Sandra Balzer, the assistant
Attorney General (AG) who served as legal advisor to OCME and the Board, that
OCME should not put anything in writing about the potential misconduct.
In July 2009, the grand jury investigating OCME indicted former employee
Kevin Rowland for sexual harassment and battery, triggering exchanges in the
media between Mr. Rowland’s attorney and the AG’s office about the substance
and propriety of the prosecution. In addition to the indictment, the grand jury
issued an interim report generally critical of the OCME. Within days, reporters
were questioning Dr. Trant about OCME’s negative image. Dr. Trant stated that
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he planned to counteract the image by publicly addressing various misstatements
by the grand jury, politicians, and anyone else critical of OCME in recent years.
Shortly thereafter, he met AG representatives, advising them that the grand jury’s
interim report contained gross errors. Dr. Trant claims he was told that the AG’s
office would “finish” OCME if he did not keep his mouth shut.
Mr. Rowland was acquitted in November 2009. In early December, an
OCME employee gave Dr. Trant emails allegedly implicating Ms. Kinney in
attempts to control the earlier grand jury testimony of OCME personnel and to
solicit overtime claims against OCME on behalf of a private organization or law
firm. The emails also purportedly showed that the persons accusing Mr. Rowland
of sexual harassment had themselves participated in even worse misconduct. The
employee who gave the emails to Dr. Trant complained that he had been subject
to harassment by Ms. Kinney and the people who had made allegations against
Mr. Rowland. Dr. Trant discussed the emails with Ms. Ballard, indicating it
would take time to review the emails in detail but the information was going to
make the AG look very bad with respect to the indictment of Mr. Rowland.
Around this time, Dr. Trant hired defendant Tom Jordan, previously the
representative of the Oklahoma State Bureau of Investigation on the Board, to be
OCME’s Chief Administrative Officer, on the Board’s recommendation. Upon
learning that Mr. Jordan had met with subordinate employees without informing
him, Dr. Trant instructed Mr. Jordan in future to advise him regarding the purpose
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and nature of any such meetings. Mr. Jordan continued meeting with employees,
particularly some of those implicated in the emails discussed above, without
informing Dr. Trant. Near the end of January 2010, Mr. Jordan told Dr. Trant
that, based on his meetings with the employees, he felt Dr. Trant was allowing the
agency to self destruct. But Mr. Jordan refused to discuss these meetings with
Dr. Trant, insisting he would not be a snitch. The two, however, agreed to meet
the next day.
But that day, January 28, 2010, Dr. Trant was summoned to a meeting with
several members of the Board by its chairman, defendant Dewayne Andrews.
Dr. Trant alleges this meeting was in violation of the state’s Open Meeting Act
(OMA). When Dr. Trant arrived, he learned that Mr. Jordan was also present.
Mr. Jordan complained about Dr. Trant based on what he had heard from OCME
employees, but admitted he refused to identify them. Dr. Trant described their
conversation of the day before, noting he had instructed Mr. Jordan to identify the
employees he had met with and the purpose of the meetings. At some point,
according to Dr. Trant, Mr. Jordan accused him of lying and lacking integrity.
Board Chairman Andrews indicated that he felt the truth lay somewhere in the
middle and adjourned the meeting.
The next day, Dr. Trant emailed Board Chairman Andrews, expressing
concerns about the meeting. The email stated that he had exercised his proper
statutory authority as OCME over Mr. Jordan. More significantly, it noted that he
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had documentation indicating the sexual harassment claims relating to the failed
prosecution of Mr. Rowland were faked by employees against whom he probably
had sufficient evidence to bring criminal charges, and that the AG and grand jury
had bungled the investigation by failing to look into Ms. Kinney and the
employees making the accusations. He also stated that the AG had ignored his
concerns regarding Ms. Kinney’s investigation and had even threatened to “finish
off” OCME after he complained of gross errors in the grand jury interim report
about the agency. Board Chairman Andrews forwarded the email to other Board
members for consideration at an emergency meeting on February 1, 2010–another
meeting that Dr. Trant contends violated the state OMA.
At the meeting the Board went into executive session to discuss Dr. Trant’s
employment as CME. Dr. Trant was given twenty minutes to present information
relevant to the matters raised in his email. He also threatened to hire a lawyer to
report the wrongdoing associated with the grand jury investigation. Dr. Trant was
thereafter excluded from the session, but he alleges on information and belief that
Mr. Jordan repeated that he was inept, a liar, and lacked integrity and then joined
Ms. Ballard in causing a groundless claim of sexual harassment to be presented to
the Board. When the Board returned to open session, it voted to place Dr. Trant
on administrative leave, taking his keys and pass card, thereby barring him from
OCME facilities and cutting off access to his sources of information. Dr. Trant
alleges that this action, taken on the advice of Assistant AG Balzer, exceeded the
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Board’s supervisory authority over a CME, which he contends the Board could
only hire or fire and oversee through regulations.
The next day, the news media reported Dr. Trant’s suspension, noting his
discovery of evidence that led him to believe the sexual harassment allegations
made against Mr. Rowland were false. This prompted the Board to call another
meeting, schedule for February 5. In the meantime, the media reported that Scott
Adams, the attorney who had represented Mr. Rowland, was now representing
Dr. Trant, and quoted him as saying that Dr. Trant had complained to the AG
about the problems with the investigation of Mr. Rowland. On February 4, a local
newspaper reported that attorneys for Dr. Trant had said they plan to contact the
FBI about irregularities discovered regarding the grand jury investigation,
referring to hundreds of emails showing the grand jury was compromised. The
next day, the media reported that Dr. Trant had been suspended because he had
reported problems with the grand jury. That same day, February 5, the Board met
and, again allegedly on the advice of Ms. Balzer, went into executive session and
then voted to terminate Dr. Trant’s employment. Dr. Trant contends this meeting
violated the state OMA as well.
The following day, the media quoted Mr. Jordan as saying that he did not
think Dr. Trant was competent to run the OCME, that he was not sure Dr. Trant
was mentally stable, and that Dr. Trant had fabricated or embellished much of
what he had said to the Board and the media. Dr. Trant claims these statements
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were false and stigmatizing, particularly as to his professional standing. He also
complains in the same vein about statements made to the media by Mr. Jordan and
Ms. Ballard a month later, which allegedly suggested OCME property had been
lost through mismanagement during the tenure of his administration.
II. DISTRICT COURT PROCEEDINGS
Dr. Trant proceeded on an omnibus complaint asserting sixteen state and
federal claims for relief against various defendants in different capacities. After
removal, defendants moved to dismiss on various grounds, including qualified
immunity as to the federal claims asserted against the individual defendants in
their personal capacities. The latter claims alleged that the individual defendants
(1) retaliated against Dr. Trant for engaging in protected speech, in violation of
the First Amendment; (2) deprived Dr. Trant of a property interest in his
employment as CME without providing adequate procedural protections, in
violation of the Due Process Clause; and (3) deprived Dr. Trant of a liberty
interest in his reputation by publishing stigmatizing statements in conjunction
with his termination without providing him adequate procedures to clear his
name, also in violation of the Due Process Clause. The district court limited its
merits disposition to the dismissal of these federal claims, remanding the state
claims for disposition in the Oklahoma courts.
As to the First Amendment claim, the district court concluded that all of the
statements alleged by Dr. Trant to have prompted defendants’ retaliatory actions
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pertained to his official duties as CME. A public employee’s speech pursuant to
his official duties is not constitutionally protected from evaluation and discipline
by his government employer. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
Accordingly, the district court held that Dr. Trant had not alleged a violation of
First Amendment guarantees and, a fortiori, had not alleged a violation of clearly
established First Amendment law.
As to the first due process claim, the district court rejected Dr. Trant’s
contention that state law, particularly the state OMA, created a property interest
in his position as CME. Rather, as CME, Dr. Trant was a mere at-will employee
serving at the pleasure of the Board. Concluding that Dr. Trant lacked a property
interest sufficient to trigger constitutional protection, the district court held that
he had not alleged a due process violation in this respect. See, e.g., Darr v. Town
of Telluride, 495 F.3d 1243, 1251-53 (10th Cir. 2007) (rejecting fired deputy
marshal’s due process claim for lack of property interest in at-will employment).
As to the second due process claim, the district court noted that some of the
allegedly stigmatizing statements were not published in the sense required to
trigger protection, see Sipes v. United States, 744 F.2d 1418, 1421-22 (10th Cir.
1984) (holding no liberty interest implicated where reasons for termination were
merely raised to and affirmed by administrative review board), and that those that
were had not been adequately tied to either the basis for his termination as CME
or the direct loss of other economic opportunities, see Evers v. Regent of Univ. of
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Colo., 509 F.3d 1304, 1310 (10th Cir. 2007) (noting liberty-interest claim may
fail for these reasons). Accordingly, the district court held that Dr. Trant had not
alleged a due process violation based on a liberty interest. It further held that the
published statements were not, in any event, of a type that a reasonable official
would have known implicated due process proscriptions, entitling defendants to
qualified immunity even if a constitutional claim had been made out. See
generally Gomes v. Wood, 451 F.3d 1122, 1135-36 (10th Cir. 2006).
Finally, the district court acknowledged that, having dismissed the federal
claims, it had the discretionary authority to either retain and decide the state law
claims or remand them to state court. Citing the governing statutory provisions
and relevant case law, the district court elected to remand the state claims.
III. APPELLATE REVIEW
“The correct standard for reviewing a motion to dismiss in a qualified
immunity case is the same as for dismissals generally.” Archuleta, 523 F.3d at
1281. Exercising de novo review, “we accept as true all well-pleaded facts, as
distinguished from conclusory allegations, and view the facts in the light most
favorable to the nonmoving party” to determine whether the complaint sets forth
plausible grounds to believe the claims asserted will find evidentiary support. Id.
at 1282-83 (quotation and alteration omitted). But we conduct this review in light
of the unique nature of qualified immunity, which imposes a “heavy two-part
burden” on a plaintiff: “First, the plaintiff must demonstrate that the defendant’s
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actions violated a constitutional or statutory right. Second, the plaintiff must
show that the constitutional or statutory rights the defendant allegedly violated
were clearly established at the time of the conduct at issue.” Id. at 1283(quotation omitted).
A. First Amendment Claim
“[W]hen public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment purposes,
and the Constitution does not insulate their communications from employer
discipline.” Garcetti, 547 F.3d at 421. The Supreme Court has not set out “a
comprehensive framework for defining the scope of an employee’s duties” in this
context. Id. at 424. But it has explained that “[t]he proper inquiry is a practical
one,” id., and “the listing of a given task in an employee’s job description is
neither necessary nor sufficient to demonstrate that [it] is within the scope of the
employees’ professional duties,” id. at 425. This court “take[s] a broad view” of
what speech falls within official duties, asking generally if “it involves the type
of activities that the employee was paid to do” Chavez-Rodriguez v. City of Santa
Fe, 596 F.3d 708, 713 (10th Cir. 2010) (quotation omitted). Speech may pertain
to official duties “even though it addresses an unusual aspect of the employee’s
job that is not part of his everyday functions,” id. at 714 (quotation omitted), and
“even if it deals with activities the employee is not expressly required to
perform,” Thomas v. City of Blanchard, 548 F.3d 1317, 1324 (10th Cir. 2008).
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Whether speech relates to official duties is a legal inquiry for the court, not a
factual question for the jury. Chavez-Rodriguez, 596 F.3d at 713.
Dr. Trant cites four communications that he contends involved protected
speech outside of his official duties. The first is his email of January 29, 2010, to
Board Chairman Dewayne Andrews relating his concern that OCME employees
had given false or misleading accounts of sexual harassment by former co-worker
Kevin Rowland, supporting his eventual indictment by the grand jury. We agree
with the district court that informing the Board about such conduct by OCME
personnel–as to both the accused former employee and the employees accusing
him–was within the scope of Dr. Trant’s official duties as CME. Speech about
workplace matters communicated through proper chain of command is typically
deemed within the scope of official duties. See Rohrbourgh v. Univ. of Colo.
Hosp. Auth., 596 F.3d 741, 747 (10th Cir. 2010); cf. Reinhardt v. Albuquerque
Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1135-36 (10th Cir. 2010) (noting report of
wrongdoing may fall outside official duties if employee’s job “did not relate to
reporting wrongdoing” and “the employee went outside the chain of command
when reporting the wrongdoing”). There could hardly be a clearer example of
chain-of-command communication: the employees were Dr. Trant’s subordinates
and the Board his supervisor. See Okla. Stat. Ann. tit. 63, § 933 (“The [OCME] is
. . . operated under the control and supervision of the Board. The [OCME] shall
be directed by the [CME], [who] may employ such other staff members as the
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Board may specify.”); id. § 935 (“The [CME] shall be directly responsible to the
Board . . . for the administration of the [OCME].”).
Next, Dr. Trant notes that some of his comments to the Board included
criticism of the grand jury investigation, and argues that this aspect of his speech
removed it from the scope of his official duties. This argument artificially
separates matters that are intrinsically linked. The AG was investigating OCME
employees’ accusations of sexual harassment by a fellow OCME employee, and
the substance of Dr. Trant’s objection regarding the investigation was that the
accusing employees–his subordinates–had led the AG astray, resulting in the
unjustified indictment of the accused OCME employee. That this objection also
blamed the AG for being misled does not alter the fact that it related to incidents
at OCME and accounts of those incidents given by OCME employees in the
course of the ensuing investigation. Dr. Trant’s discussion of such matters with
the Board was within the scope of his official duties as director of OCME.
The other two communications cited by Dr. Trant, which the district court
unfortunately did not address with specificity, raise very different considerations.
Both involve statements he made about retaining counsel and reporting to outside
authorities, such as the FBI, the wrongdoing he had discovered tainting the grand
jury investigation. He made the first statement to the Board during the meeting
that ended in his suspension, and the second (through counsel) to the media after
the suspension and just before his termination. This court has repeatedly held
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that reporting or threatening to report wrongdoing to outside authorities is not
within the scope of official duties where the employee is not tasked to do so by
his employer nor required to do so by independent legal obligation imposed as a
function of his official position. See Thomas, 548 F.3d at 1324-26 (holding
building inspector’s threat to report illegal permit to state bureau of investigation
was protected speech outside official duties); Casey v. West Las Vegas Indep.
Sch. Dist., 473 F.3d 1323, 1331-32 (10th Cir. 2007) (holding director of local
Head Start program acted pursuant to official duties when, consistent with
disclosure obligations attending her authority over the federally funded program,
she informed regional Head Start office of school district’s noncompliance with
regulations governing program funds, but acted outside her official duties when
reporting to state AG about school board’s noncompliance with state law). There
is nothing in the complaint to suggest that the CME’s duties included reporting, to
authorities such as the FBI, his suspicions of possible criminal wrongdoing and
professional malfeasance in connection with the AG’s investigation and resultant
grand jury indictment of Mr. Rowland. Nor is there any indication of an
independent legal obligation in this regard imposed on him specifically as a
function of his position as CME. Under the cited case law, decided years before
the events in this case, we must hold that the speech at issue triggered First
Amendment protection and that defendants should have known it did.
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Defendants have argued that, in the event we conclude any of Dr. Trant’s
speech fell outside his official duties, we should continue the First Amendment
analysis beyond this first step at which the district court resolved the claim. They
suggest we could affirm its dismissal later in the governing inquiry, specifically
the third step, at which the court determines “whether the employee’s interest in
commenting on the issue outweighs the interest of the state as employer.” 1
Chavez-Rodriguez, 596 F.3d at 713 (quotation omitted). We decline to do so, for
good practical and prudential reasons. This step in the inquiry is not a simple
matter. While it is framed as a “balancing test,” it actually places a substantial
threshold burden on the employer before balancing is even considered:
[T]his Court has held that First Amendment rights are protected
unless the employer shows that some restriction is necessary to
prevent the disruption of official functions or to insure effective
performance by the employee. In other words, unless the
government employer can show that the termination was based on
legitimate reasons grounded in the efficient conduct of political
business, there is no need to proceed to balancing, and the First
Amendment interest of the plaintiff prevails.
1
The full “Garcetti/Pickering test” for resolving First Amendment claims of
public employees consists of five steps: (1) whether the speech at issue was made
pursuant to official duties; (2) whether the speech was on a matter of public
concern; (3) whether the employer’s interests in regulating the speech outweighs
the employee’s free speech interests; (4) whether the speech was a motivating
factor in a detrimental employment action; and (5) whether the employer would
have taken the same action if the speech had not occurred. Dixon v. Kirkpatrick,
553 F.3d 1294, 1301-02 (10th Cir. 2009).
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Dixon v. Kirkpatrick, 553 F.3d 1294, 1304 (10th Cir. 2009) (quotations and
citations omitted); see also Brammer-Hoelter v. Twin Peaks Charter Acad.,
492 F.3d 1192, 1207 (10th Cir. 2007) (stressing that “the employer bears the
burden of justifying its regulation of the employer’s speech”). As indicated by
the repeated references in the quoted passage to the need for a “showing” of the
employer’s interest, this is a true burden of demonstration, not a mere matter of
hypothetical articulation: “We have cautioned that the employer cannot rely on
purely speculative allegations that certain statements caused or will cause
disruption.” Dixon, 552 F.3d at 304 (quotation omitted). The Dixon decision,
with its lengthy discussion of this threshold matter, see id. at 1304-08, is a telling
illustration of the potentially detailed considerations involved.
And that, of course, is only the prelude to the actual balancing required,
where the court “ha[s] to weigh [the employee’s] interest in making that speech,
and the interest of her audience in hearing it, against the interests of her
government employer.” Id. at 1308. We have repeatedly noted that “‘there is no
easy formula for ‘weighing’ an employee’s First Amendment speech against an
employer’s interest in an efficient and disciplined work environment.’” Id.
(quoting Brammer-Hoelter, 492 F.3d at) (further quotation omitted).
There are certainly instances in which this court has disagreed with a
district court’s initial determination that a government employee’s speech was
unprotected but gone on to determine whether the disposition in favor of the
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employer might still be affirmed at the balancing step of the inquiry. But, in light
of the considerations noted above, it should not be surprising that such cases have
involved the appeal from summary judgment–where an adequate factual record
had been developed to actually “show,” rather than merely speculate about, the
employer’s interest and to weigh it in an informed manner against the First
Amendment interests involved. See, e.g., Thomas, 548 F.3d at 1327-28; Casey,
473 F.3d at 1333-34. Here, not only do we lack a summary judgment record on
which to rely for consideration of the government employer’s interest and its
comparative importance vis a vis the First Amendment interests alleged in the
complaint, we do not even have a responsive pleading from defendants. Under
the circumstances, remanding for further proceedings before the district court is
in our view the most appropriate course. 2
B. Due Process Claim Based on Alleged Property Interest
“In the employment context, a property interest [for due process purposes]
is a legitimate expectation in continued employment.” Hesse v. Town of Jackson,
541 F.3d 1240, 1245 (10th Cir. 2008) (quotation omitted). “We determine
whether such a property interest exists by looking at state law.” Id. “State law
2
We likewise express no view as to Ms. Balzer’s fall-back argument that she
should not be held liable in connection with any of the Board’s actions because
she was not a member, despite her role as its legal advisor. We leave that point,
with its potentially complicated legal and factual aspects, for the district court to
address in the first instance as well.
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sources for property interests can include statutes, municipal charters or
ordinances, and express or implied contracts.” Schulz v. City of Longmont,
465 F.3d 433, 444 (10th Cir. 2006) (quotation omitted). A property interest may
be created based on “tenure, a contract for a fixed term, an implied promise of
continued employment, or if state law allows dismissal only for cause or its
equivalent.” Darr, 495 F.3d at 1251. But state law providing for mere at-will
employment will not give rise to a property interest. Id. at 1252.
Oklahoma law divides public employees into two categories–“classified”
and “unclassified”–differentiated specifically with regard to their at-will status:
[A] classified employee[] is not an employee-at-will. Under the
Oklahoma Personnel Act, public employees are designated as being
in either “classified” or “unclassified” service. Employees in
classified service are under the jurisdiction of the Oklahoma Merit
System of Personnel Administration, and are protected by detailed
rules and procedures concerning all aspects of the employment
relationship, including the right to appeal from . . . suspensions, and
involuntary discharge without just cause. These employment rights
are not afforded to employees in the unclassified service.
Unclassified employees serve at the pleasure of their employers and
may be discharged at any time, “with or without cause.” They are
considered at-will employees.
McCrady v. Okla. Dep’t of Pub. Safety, 122 P.3d 473, 475 (Okla. 2005) (citations
omitted). 3 In terms directly relevant to the due process inquiry, an unclassified
3
There is Tenth Circuit case law broadly stating that, absent specific
contractual arrangements to the contrary, “public employees are employed at
will.” Bunger v. Univ. of Okla. Bd. of Regents, 95 F.3d 987, 990 (10th Cir. 1996).
Such statements must be qualified in light of the authoritative construction of
(continued...)
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position “shall not convey any right or expectation of continued employment.”
Okla. Stat. Ann. tit. 74, § 840-5.1A(A). Positions designated as unclassified
include “heads of agencies.” Id. § 840-5.5(A), (A)(2). As an office of the State
of Oklahoma, the OCME is an “agency,” id. § 840-1.3(1), and the CME heads the
OCME, see Okla. Stat. Ann. tit. 63, §§ 933 and 935. The CME is clearly an
unclassified at-will position–a point corroborated by express statutory recognition
that the CME “serve[s] at the pleasure of the Board.” Id. § 934.
The straightforward conclusion from the foregoing is that Dr. Trant was a
mere at-will employee with no property interest in his position as CME sufficient
to trigger due process protections. 4 He attempts to avoid this conclusion by
3
(...continued)
state law by the Oklahoma Supreme Court.
4
In one variant of his argument, Dr. Trant insists that even if he could be
terminated without due process, the Board lacked authority to suspend him for the
few days before he was fired and this alleged lack of authority translates into a
distinct property right violated by the Board without due process. There are any
number of deficiencies with this argument. As a general matter, the notion that
an employee may be summarily fired yet has a right to due process before being
suspended defies common sense, and Dr. Trant cites no constitutional authority
recognizing such a facially incoherent application of due process guarantees. In
any event, the underlying premise for this position–that the CME’s “serv[ice] at
the pleasure of the Board” does not afford the Board the authority to suspend a
CME–is specious. No case has been brought to our attention suggesting that the
discretionary authority implied by such unqualified language does not include the
power to suspend service as well as terminate it. Instead, Dr. Trant takes an
entirely different tack, seizing on a reference in § 933 to “rules as the Board may
prescribe” to argue that the Board may take such actions as suspending the CME
only after establishing parameters for the action through rule-making. But the
reference relates specifically to the Board’s prescription of rules governing the
(continued...)
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arguing that the procedural requirements of the state Open Meeting Act (OMA),
Okla. Stat. Ann. tit 25, §§ 301-314, gave him a protected interest sufficient to
support a due process claim to remedy the Board’s alleged non-compliance with
the OMA in connection with his suspension and termination. The district court
rejected this argument on the basis that the OMA was intended solely for the
public’s benefit and not to provide enforceable rights for state employees
adversely affected by decisions taken in violation of the OMA. While we believe
Dr. Trant’s reliance on the OMA is misplaced, we do not adopt the district court’s
reasoning in this respect, as Oklahoma case law indicates that public employees
may indeed challenge decisions affecting their employment for lack of
compliance with OMA procedures. See Oldham v. Drummond Bd. of Educ.,
542 P.2d 1309, 1310-11 (Okla. 1975) (affirming judgment declaring teacher’s
termination invalid due to school board’s noncompliance with OMA); see also
Graybill v. Okla. State Bd. of Educ., 585 P.2d 1358, 1359-60 (Okla. 1978)
(considering teacher’s OMA challenge to non-renewal of contract but rejecting it
on the merits because school board had complied with OMA).
The flaw in Dr. Trant’s position is, rather, that the OMA imposed only
procedural, not substantive, constraints on the Board. Nothing in the OMA limits
the grounds on which the Board could act, such as a requirement for “just cause”
4
(...continued)
CME’s delegation of his authority to deputies and nothing else.
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or the like. Thus, he “attempts to construct a property interest out of procedural
timber, an undertaking which the Supreme Court warned against in Cleveland
Board of Education v. Loudermill, 470 U.S. 532, [541] . . . (1985).” Bunger v.
Univ. of Okla. Bd of Regents, 95 F.3d 987, 990-91 (10th Cir. 1996) (“‘Property’
cannot be defined by the procedures provided for its deprivation” (quotation
omitted)); see Ripley v. Wyo. Med. Ctr., Inc., 559 F.3d 1119, 1125 (10th Cir.
2009) (“‘an entitlement to nothing but procedure’ cannot serve as the basis for a
property right protected by the Due Process Clause” (quoting Town of Castle
Rock v. Gonzales, 545 U.S. 748, 764 (2005)). Under well established principles,
Dr. Trant’s property-interest claim must fail.
C. Due Process Claim Based on Alleged Liberty Interest
Dr. Trant has limited his appellate argument on this issue to the statement
Mr. Jordan made to the press the day after Dr. Trant’s termination. The media
allegedly quoted Mr. Jordan saying: “I don’t think the man’s competent to run
the agency. I’m not sure he’s mentally stable. And he has fabricated . . . or
embellished many of the statements he has made both . . . in executive sessions of
the board meetings and to the media.” App. Vol. I at 26. Dr. Trant further
alleged that, although Mr. Jordan was not a Board member, no “representative of
the Board disputed the accusations made publicly by [him].” Id. at 24.
A liberty interest claim against a government employer based on damaging
defamatory statements has four elements:
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First, . . . the statements must impugn the good name, reputation,
honor, or integrity of the employee. Second, the statements must be
false. Third, the statements must occur in the course of terminating
that employee or must foreclose other employment opportunities. [5]
And fourth, the statements must be published.
Evers, 509 F.3d at 1308 (quotation omitted). “These elements are not disjunctive,
all must be satisfied to demonstrate deprivation of the liberty interest.” Id.(quotation omitted).
The district court held that Dr. Trant’s claim failed on the third element
because (1) “Defendant Jordan’s statement . . . was made after [Dr. Trant] was
terminated and was not the basis for his termination, so [Dr. Trant] must show a
tangible harm foreclosing future opportunities,” and (2) Dr. Trant’s conclusory
allegations “that he ‘suffered economic loss’ and that ‘numerous potential clients
. . . failed . . . to hire [him]’ . . . are insufficient to satisfy the level of tangible
harm required for a liberty interest due process claim.” App. Vol. I at 78-79.
Dr. Trant challenges only the first conclusion, arguing that to be actionable the
stigmatizing statements need not be made simultaneously with the employee’s
termination nor relate directly to the reasons for termination, so long as they are
intertwined with the termination. He is correct on the first point, as “[r]oughly
5
There is some uncertainty in our case law as to whether the two aspects of
the third element should be considered conjunctive rather than disjunctive. See
Darr, 495 F.3d at 1255 & n.4 (discussing conjunctive formulation suggested by
Renaud v Wyo. Dep’t of Family Servs., 203 F.3d 723 728 n.1 (10th Cir. 2000)).
We do not pursue the point, as the district court gave Dr. Trant the benefit of the
disjunctive test and the difference is not material to our disposition.
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contemporaneous” statements can suffice. Renaud v Wyo. Dep’t of Family Servs.,
203 F.3d 723, 727 (10th Cir. 2000). The second point is less clear-cut, however.
We held in Renaud that even defamation contemporaneous with termination will
not support a liberty interest claim if it “ha[s] nothing to do with the reasons for
termination.” Id. And we enforced that rule fairly strictly in holding that an
employee fired for violating a substance abuse policy could not base a claim on
false statements “that he had checked out of rehabilitation and was dangerous.”
Id. at 726. We need not undertake here the task of specifying in exacting fashion
how closely a stigmatizing statement must relate to the reasons for termination, as
additional considerations undercut Dr. Trant’s claim.
We take a “common-sense approach [to the liberty-interest inquiry,]
examining the nature of the alleged defamation, as well as its timing, to determine
whether it occurred in the course of the termination.” Id. at 727. Here, the Board
did not publicly disclose the reasons for Dr. Trant’s termination. And Dr. Trant’s
allegations do not show that Mr. Jordan–who was not a Board member but merely
a subordinate OCME employee–was authorized to speak for the Board or that the
Board subsequently adopted his derogatory comments. Moreover, the comments
themselves do not suggest that Mr. Jordan was speaking on behalf of the Board or
even independently revealing its confidential reasons for terminating Dr. Trant.
On the contrary, Mr. Jordan’s repeated self-attributions (“I don’t think the man’s
competent to run the agency. I’m not sure he’s mentally stable.”) indicate that he
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was merely stating his own criticisms of his erstwhile boss at the OCME. While
such personal statements might perhaps support a state tort claim against
Mr. Jordan, they are not in our view properly deemed statements made in the
course of Dr. Trant’s termination by the Board so as to implicate a liberty interest
sufficient to support a due process claim.
IV. CONCLUSION
In sum, we affirm the dismissal of Dr. Trant’s due process claims, but hold
that the district court erred in dismissing his First Amendment claim insofar as it
rests on alleged retaliation for his threat to go to outside authorities with evidence
of wrongdoing in connection with the grand jury investigation of Mr. Rowland, as
such action would not fall within his official duties as CME. Because the latter
holding reinstates one of the federal claims underwriting removal of the action to
federal court, the district court’s decision to remand the case to state court has
lost its legal premise and must be reversed as well.
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The judgment of the district court is AFFIRMED IN PART, REVERSED
IN PART, and the cause is REMANDED for further proceedings consistent with
this order and judgment.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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