Simmons v. Uintah Health Care Special Service District

FILED
United States Court of Appeals
Tenth Circuit
February 9, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ROSSA LEE SIMMONS,
Plaintiff-Appellant,
v. No. 08-4196
(D. Utah)
UINTAH HEALTH CARE (D.C. No. 2:02-CV-00214-TS)
SPECIAL SERVICE DISTRICT,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, and BRISCOE and LUCERO, Circuit Judges.
Rossa Lee Simmons filed this 42 U.S.C. § 1983 action alleging a violation
of her procedural and substantive due process rights in the February 2001
termination of her employment with the Uintah County Care Center, a nursing
home in Vernal, Utah. The Care Center is operated by the Health Care Special
Service District (the District), a political subdivision of Uintah County. The
*
This order and judgment is not binding precedent except under the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.
District maintained that Ms. Simmons’s discharge constituted a reduction in force
(RIF).
After a remand following a prior appeal, see Simmons v. Uintah Health
Care Special Serv. Dist., 506 F.3d 1281 (10th Cir. 2007), the district court
granted the District’s motion for judgment on the pleadings. As to Ms.
Simmons’s procedural due process claim, the court concluded that she lacked a
property interest in her employment. As to Ms. Simmons’s substantive due
process claim, the court adopted a prior finding (following a bench trial) that the
District’s Board had not acted arbitrarily and capriciously.
In this appeal, Ms. Simmons argues that (1) the district court erred in ruling
that she lacked a property interest in her employment; and (2) the district court
should be allowed to reconsider its factual finding that she would have been fired
even if the District had followed its RIF policy.
We are not persuaded. Ms. Simmons has failed to establish that she had a
“legitimate expectation in continued employment.” Hesse v. Town of Jackson,
Wyo., 541 F.3d 1240, 1245 (10th Cir. 2008) (citation omitted). We therefore
affirm the district court’s grant of the District’s motion for judgment on the
pleadings.
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I. BACKGROUND
A. The termination of Ms. Simmons’s employment
Ms. Simmons began working for Uintah County in 1985, when she was
hired as an office manager at the Care Center. One year later, she was promoted
to Administrator, overseeing its operations and reporting to one of the Uintah
County Commissioners.
The events leading up to Ms. Simmons’s termination began in December
2000, when Uintah County created the District as a political subdivision “with the
aim of cutting operation costs which were paid by county taxes.” Aplt’s App. at
382 (Dist. Ct. Findings of Fact and Conclusions of Law, filed July 12, 2006). In
turn, the District created the Administrative Control Board “to make decisions
regarding the management and operations of the Care Center.” Id. The
Administrative Control Board decided that it could further reduce costs by
allowing a private entity to manage the Care Center, and it selected Traditions
Heath Care, Inc., to do so.
Traditions personnel suggested that the Care Center could reduce its costs
by terminating Ms. Simmons’s employment and having a Traditions employee
perform her duties. Some members of the Administrative Control Board
discussed the possibility of terminating Ms. Simmons for cause. However, the
Board eventually decided that it would treat Ms. Simmons’s discharge as a RIF.
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At that time, the County’s RIF policy sought “to establish a uniform
process for reducing the county’s work force due to lack of funds, workload
changes, organizational changes, or other conditions.” Aplt’s App. at 375. It
provided that “[a] reduction in force shall be the last option taken for cost
savings[,]” and it required department heads to develop “a work force adjustment
plan” when a RIF was required. Id. The policy required these plans to include
“[a] specification of the category of work to be eliminated considering
interchangeability of skills, size of organization, number of positions to be
reduced, and similar factors.” Id. The policy set forth the order in which
employees should be discharged, beginning with temporary employees and
proceeding to probationary employees, “[t]ime-limited employees with career
service status[,]” and, finally, “[c]areer service employees in the order of their
retention score.” Id. The policy stated, “The Personnel Director shall give an
employee separated due to a reduction in force a minimum of two weeks
notification of separation and an opportunity for administrative review.” Id. at
376.
The District terminated Ms. Simmons’s employment on February 14, 2001,
without affording her advance notice or an opportunity for a hearing. “The
County Personnel Director notified Ms. Simmons of her termination and was sent
a letter stating that she had been RIFed pursuant to ‘Section 250.1 and 250.2 of
Uintah County Policies and Procedures.’” Id. at 383. The termination letter
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informed Ms. Simmons that she would be placed on the “‘reappointment roster’
for one year and would be eligible for rehire within that period for any position
for which she was qualified.” Id. After her termination, Traditions hired an
employee to perform the administrative functions for which she had been
responsible.
B. Ms. Simmons’s § 1983 action
In March 2002, Ms. Simmons filed this action against the District and
Uintah County. She alleged: (1) a 42 U.S.C. § 1983 claim for the violation of her
procedural due process rights in the termination of her employment; (2) a § 1983
claim for the violation of her substantive due process rights; and (3) a gender
discrimination claim pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to 2000e-17.
On February 8, 2005, the district court issued an Order & Opinion granting
partial summary judgment to Ms. Simmons. In particular, the court concluded
that it was not disputed that the District had failed to follow its own RIF policy.
It explained that “[t]he District’s failure in this case is not that it decided to RIF
Simmons instead of firing her for cause, but rather that it did not properly RIF
Simmons according to its own RIF policy.” Id. at 37.
In the same Order & Opinion, the district court denied the motions for
summary judgment filed by the District and the County. The court also made the
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following statements regarding the existence of a property interest in Ms.
Simmons’s job:
The District does not dispute that Simmons has a protected
property interest in her employment. Nor does the District
dispute that its RIF policy provides Simmons with a
protected property right.
Id. at 34.
Prior to trial, Ms. Simmons voluntarily dismissed the County as a defendant
and dropped her Title VII claim altogether. Thus, her only remaining claims alleged
§ 1983 substantive and procedural due process violations against the District.
C. Findings of Fact and Conclusions of Law following the May 2006
bench trial.
After a bench trial, the district court issued findings of fact and conclusions
of law. It ruled as follows:
1. The District could not be held liable for the alleged due process
violation because it had a proper RIF policy. The alleged due process violation
was committed by the Board, which was not a defendant.
2. “[Ms.] Simmons could have obtained the appropriate level of due
process by following the Grievance Policy to seek administrative review of the
Board’s decision. She failed to do so. Thus, to the extent there was any lack of
due process, it was not due to acts or omissions on the part of the District.” Id. at
389.
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3. The decision to terminate Ms. Simmons did not shock the conscience,
and thus she could not prevail on her substantive due process claim.
4. “The evidence presented at trial established that Ms. Simmons’
employment would have been terminated even if the members of the Board
followed the RIF policy. Thus, as a matter of law, Ms. Simmons is not entitled to
recover damages.” Id. at 390.
D. The Tenth Circuit’s reversal of the district court’s opinion
In a prior appeal, see Simmons, 506 F.3d at 1284-86, this court reversed the
district court’s judgment for the defendant District on two grounds.
First, we held that the district court had erred in holding that the District
itself could not be liable on a § 1983 due process claim because it was the
Administrative Control Board that had violated the District’s RIF policy in
discharging Ms. Simmons. We explained that the district court had ignored the
principle that a governmental entity may be held liable for the final decisions of
its policymakers. See id. at 1284-85 (discussing Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 691-95 (1978) and Pembaur v. City of Cincinnati, 475 U.S. 469,
478-80 (1986)). Here, “The Administrative Control Board is the final and
authoritative policymaking voice of Uintah County, Utah’s Health Care Special
Services District.” 506 F.3d at 1283.
Second, we concluded that the district court erred in ruling that Ms.
Simmons was foreclosed from recovering on her § 1983 due process claim
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because she failed to comply with the District’s grievance procedures. “[T]he
exhaustion of administrative remedies is not required of plaintiffs asserting
employment termination claims under Section 1983.” Id. at 1286 (citing Patsy v.
Bd. of Regents of State of Fla., 457 U.S. 496, 516 (1982)).
Finally, we held that the district court’s factual finding that Ms. Simmons
would have been fired even if its Board had followed the RIF policy did not bar
her due process claim: “The fact that Ms. Simmons would have been fired even if
the Board followed its RIF policies bears, at most, on the extent of her damages,
not on the District’s liability for failing to afford the process due her in the course
of her termination. Even when one does not prove any compensable damages
from a due process violation, under Section 1983 a cause of action and nominal
damages remain available.” Id.After pronouncing these holdings, in a concluding paragraph, we noted:
“Of course, finding none of the arguments proffered by the District for judgment
on its behalf persuasive does not mean that Ms. Simmons is herself entitled to
judgment. She must still show, among other things, that she had a protected
property interest in her continued employment, and that she was deprived of that
interest without the appropriate level of process, as well as the scope (if any) of
her damages. No doubt a number of defenses remain to be considered on these
and other scores. Because it is not our place to decide such matters in the first
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instance, we remand for further proceedings not inconsistent with this opinion.”
Id. at 1287.
E. The district court’s grant of the District’s motion for judgment
on the pleadings
Following remand, the case was reassigned to another district judge, who
granted the District’s motion for judgment on the pleadings. The court first
concluded that the issue of whether Ms. Simmons had a property interest in her
employment had not yet been resolved—despite the statements in its prior order
that “[t]he District does not dispute that Simmons has a protected property
interest in her employment” and that “the District [does not] dispute that its RIF
policy provides Simmons with a protected property right.” Aplt’s App. at 34.
The court explained that “[the prior order] did not determine the issue of a
protected property interest. Instead, it merely noted what elements the Defendant
contested for the Motion [i.e., the District’s initial motion for summary
judgment]. Defendant did not concede that issue, the Court did not rule on that
issue, and Defendant properly contested that issue at trial.” Id. at 476 (Mem.
Dec. & Order, filed Sept. 29, 2008).
The court also addressed the fact that the District’s Board did not follow its
RIF policy or the requirements of a state statute—Utah Code Ann. § 17-33-
5(3)(b)(xv)–before discharging Ms. Simmons. It noted that Utah case law
interpreting this statute requires counties to consider only “the relative ability,
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seniority, and merit of each employee” in making layoff decisions. Id.(discussing Thurston v. Box Elder County, 835 P.2d 165, 169 (Utah 1992)). Here,
the district court said, even though there was no evidence that the District’s Board
considered these factors, “it would be difficult for them to do so in light of
Plaintiff being the sole administrator employed at the nursing home at the time of
dismissal. To consider her relative ability, seniority, and merit makes little sense
when she is the only employee to consider.” Id. at 476-77.
The district court then invoked Tenth Circuit precedent holding that “‘an
entitlement to nothing but procedure . . . cannot be the basis for a property
interest.’” Id. at 477 (quoting Darr v. Town of Telluride, Colo., 495 F.3d 1243,
1251 (10th Cir. 2007) (quoting Robbins v. Bureau of Land Mgmt., 438 F.3d 1074,
1085 (10th Cir. 2006))). Thus, the fact that the District’s RIF policy required
certain steps to be taken before termination was not sufficient to create the
constitutionally protected property interest necessary to support a § 1983 due
process claim.
As to Ms. Simmons’s substantive due process claim, the court noted that, in
its findings of fact and conclusions of law following the May 2006 bench trial, it
had held that the District’s Board had not acted arbitrarily and capriciously and
that the District was thus entitled to judgment on that claim. The court explained
that “because the Tenth Circuit failed to overturn the factual findings that the
Board did not act arbitrarily and capriciously, and that the Board’s decision had a
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rational basis and did not shock the conscience, those findings are still applicable
to the case.” Id. at 478. Accordingly, based on those findings, Ms. Simmons had
not shown a violation of substantive due process, and the District was entitled to
judgment on the pleadings.
II. DISCUSSION
As the district court observed, in order to establish that she was discharged
in violation of her procedural due process rights under the Fourteenth
Amendment, Ms. Simmons was required to prove that she had a property interest
in her employment. See Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir.
2007). In this appeal, Ms. Simmons challenges (1) the district court’s ruling that
she lacked such a property interest. She maintains that the district court (a) erred
in refusing to apply the law of the case on this issue; (b) used the wrong legal
standard; and (c) failed to consider relevant evidence. She also maintains that (2)
the district court should be allowed to reconsider its factual finding that she
would have been fired even if the District had followed its RIF policy. 1
Ms. Simmons’s arguments raise legal issues, and we therefore review the
district court’s decision de novo. See Nieto v. Kapoor, 268 F.3d 1208, 1217 (10th
Cir. 2001) (noting that a motion for judgment in a bench trial is governed by Rule
52(c) of the Federal Rules of Civil Procedure and that “[w]e review the district
1
In this appeal, Ms. Simmons does not challenge the district court’s entry
of judgment in favor of the District on her substantive due process claim.
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court’s . . . legal conclusions de novo”). We agree with the district court that Ms.
Simmons lacked a property interest in her employment and that the District was
entitled to judgment in its favor on her § 1983 procedural due process claim. In
light of that conclusion, we do not consider Ms. Simmons’s argument regarding
reconsideration of the district court’s factual findings.
A. The district court did not violate the law-of-the-case doctrine.
Ms. Simmons first argues that the district court erred in not treating as the
law of the case the prior statements (by the judge who was first assigned to the
case) that the District was not contesting the proposition that she had a property
interest in her job.
In support of this contention, she relies primarily upon the following
statement by the first judge in the midst of the closing arguments during the
bench trial.
[Ms. Simmons’s counsel]: Now, in this case we do have
a termination, but it was pursuant to a reduction in force.
The defendant has argued all along that the discipline
policy did not apply. It has only been in the last few days
that they have argued that it applied. The reduction in
force policy is what most obviously applies to this case,
and it certainly limits or constrains the right of the county
and the district to impose a reduction in force.
The Court: But my understanding, from our previous
discussion and my previous order, is that the law of the
case here was all based on a finding and a recognition,
which I don’t think was contested by the defendant, that
she had a protectable property right in the RIF program if
she were RIF’d, period.
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[Ms. Simmons’s counsel]: I believe that is what the court
held.
The Court: That was the whole essence of my prior order,
and it is the law of the case. I don’t know why we are
even discussing that again.
[Ms. Simmons’s counsel]: Well, I agree.
Aplt’s App. at 332 (emphasis added).
“The law of the case is a judicial doctrine designed to promote decisional
finality. Once a court decides an issue, the doctrine comes into play to prevent
the re-litigation of that issue in subsequent proceedings in the same case.”
Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1536 n.4 (10th
Cir. 1995), abrogated on other grounds by Alaska v. Native Village of Venetie
Tribal Gov’t, 522 U.S. 520 (1998). “The doctrine applies to issues previously
decided, either explicitly or by necessary implication.” Guidry v. Sheet Metal
Workers Int’l Ass’n, 10 F.3d 700, 705 (10th Cir. 1993) (citation omitted).
Here, we are not persuaded that the first-assigned district judge
actually decided the property-interest issue. As we have noted, in the February 8,
2005 order that addressed the parties’ initial motions for summary judgment, the
district court did state that “[t]he District does not dispute that Simmons has a
protected property interest in her employment.” Aplt’s App. at 34. However, the
judge never made a formal ruling that addressed the existence of a property
interest. Morever, throughout the proceedings, the District had contested the
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property-interest issue. In particular, in its answer, it disputed Ms. Simmons’s
contention that she had such an interest. See id. at 3, 11 (denying Ms. Simmons’s
allegations that the District’s policies created a property interest in her
employment). In its trial brief, the District again contended that Ms. Simmons
lacked a property interest. See Aple’s Supp. App. at 56 (arguing that “[Ms.
Simmons] did not have a protected property interest”). And, during the bench
trial, at the conclusion of closing arguments, the District’s counsel responded as
follows when asked if he had anything to add:
The only thing I would have to add is when the Court
brings up [the question of whether] they could have fired
her at will, and the answer to that is yes, and that
implicates the authority we have cited in our motion and
that disposes of the case in our mind.
Aplt’s App. at 372.
Additionally, even though the first-assigned district court judge stated that
the District did not dispute the property interest issue, our prior opinion in this
case expressly concluded that Ms. Simmons still had the burden of establishing
that she had a property interest. See Simmons, 506 F.3d at 1287 (stating that
“[Ms. Simmons] must still show, among other things, that she had a protected
property interest in her continued employment”).
Accordingly, the district court did not err in declining to treat the
comments during the closing argument of the bench trial as the law of the case.
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B. The district court applied the correct legal standard in determining
that Ms. Simmons lacked a property interest in her employment.
Next, Ms. Simmons argues that the district court applied the incorrect
standard in determining that she lacked a property interest in her employment.
Ms. Simmons points to the district court’s statement that “[a]n employee has a
property interest in employment if she has “‘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.’” Aplt’s App. at 475 (quoting Darr, 495 F.3d at
1251). According to Ms. Simmons, that standard is too narrow. She points to
another statement in Darr: “For example, an employee may possess a property
interest in public employment if she has 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.” Aplt’s Br. at 20 (quoting Darr, 495 F.3d at 1250)
(emphasis added). Thus, in her view, “Darr recognizes that the named categories
are only examples of protected property interests.” Id. at 20.
Ms. Simmons then invokes a series of Utah state cases which, in her view,
“recognize[] protected property interests in employment other than ‘just cause’
limitations.” Id. at 20-21 (discussing Cook v. Zions First Nat’l Bank, 919 P.2d 56(Utah 1996); Sanderson v. First Sec. Leasing Co., 844 P.2d 303 (Utah 1992);
Thurston, 835 P.2d 165; Lowe v. Sorenson Research Co., 779 P.2d 668 (Utah
1989); and Arnold v. B.J. Titan Servs. Co., 783 P.2d 541 (Utah 1989)). She
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therefore maintains that, even though she cannot establish that she was terminable
only for cause, she still had a property interest in her position with the District.
Ms. Simmons further explains that her property interest is based upon the
following elements of the RIF policy:
(1) failure to determine that a RIF was the “last option”
available to achieve the desired cost savings, as required
by Section 1 of the RIF Policy; (2) failure to specify the
category of work to be eliminated, considering the
interchangeability of skills and other factors, as required
by Section 1.A. of the RIF Policy; (3) failure to facilitate
the placement of career service employees through normal
attrition, transfer or reassignment, as required by Section
1.C. of the RIF Policy; (4) failure to afford Simmons two
weeks advance notice of her termination, as required by
Section 5 of the RIF policy; and (5) failure to perform
steps (1)-(4) above prior to the RIF, as required by Section
1 of the RIF Policy.
Aplt’s Br. at 19 n.6.
In Board of Regents v. Roth, 408 U.S. 564, 577 (1972), the Supreme Court
explained that to have a property interest in a particular benefit, one must
establish more than “an abstract need or desire” or “a unilateral expectation” that
he or she will receive it. Id. Instead, property interests involve “legitimate
claim[s] of entitlement.” Id. Although protected property interests “extend well
beyond actual ownership of real estate, chattels, or money,” they arise not from
the federal constitution but from independent sources, such as state law. Id. at
572. Statutes, ordinances, contracts, implied contracts, as well as rules and
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policies developed by government officials may all create such interests.
Calhoun v. Gaines, 982 F.2d 1470, 1473-74 (10th Cir. 1992).
Applying Roth, this circuit has concluded, in the employment context, that
a property interest is “a legitimate expectation in continued employment.” Hesse,
541 F.3d at 1245; see also Kingsford v. Salt Lake City Sch. Dist., 247 F.3d 1123,
1131 (10th Cir. 2001) (stating that “[a] public employee . . . must have a
legitimate claim of entitlement to continued public employment for a property
interest to arise”) (internal quotation marks omitted). Under the applicable Utah
law, unless there is an employment contract with a definite term of duration,
employment is presumed to be at-will. See Brehany v. Nordstrom, Inc., 812 P.2d
49, 52-53 (Utah 1991). This presumption, however, “can be overcome by an
affirmative showing by the plaintiff that the parties . . . impliedly . . . agreed to
terminate the relationship for cause alone.” Berube v. Fashion Ctr., Ltd., 771
P.2d 1033, 1044 (Utah 1989).
Here, Ms. Simmons has failed to identify any statute, policy, or promise
establishing that her employment was terminable only for cause or that otherwise
established “a legitimate expectation in continued employment.” Hesse, 541 F.3d
at 1245. As we have noted, she does invoke the District’s RIF policy. That
policy states that “[a] reduction in force shall be the last option taken for cost
savings[,]” and it directs the district to follow certain procedures (e.g., by stating
that the personnel director “shall give an employee separated due to a reduction in
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force a minimum of two weeks written notification of separation and an
opportunity for administrative review”). See Aplt’s App. at 375-76. However,
the RIF policy does not limit the District’s discretion to terminate Ms. Simmons’s
employment at any time for any reason. In other words, nothing in the policy
indicates that employees like Ms. Simmons may only be discharged pursuant to a
RIF or suggests that discharge is not permissible if the employer’s contention that
a particular discharge constitutes a RIF is false.
We agree with the district court that the District appears to have violated its
RIF policy. In particular, there is no indication that the District afforded Ms.
Simmons “two weeks written notice of separation and an opportunity for
administrative review.” Id. at 376. However, it is well established that
procedural protections in state statutes, regulations, and policies—like those in
the District’s RIF policy–are insufficient to create property interests protected by
the Fourteenth Amendment. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 541 (1985) (“‘Property’ cannot be defined by the procedures provided for its
deprivation any more than can life or liberty.”); Ripley v. Wyo. Med. Ctr., Inc.,
559 F.3d 1119, 1124-25 (10th Cir.) (concluding that a state statute regarding
factors to be considered in admission to medical staffs of public hospitals created
“a procedural right without a mandated outcome . . . [that] [was] not protected
under the Due Process Clause”), cert. denied, 130 S. Ct. 287 (2009); Teigen, 511
F.3d at 1081 (stating that “[p]laintiffs’ claimed entitlement to be considered for
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promotion in accordance with the state system of merit is no more than a claim of
entitlement to a fair process” and that “[e]ven assuming state law grants every
state employee the right to be fairly considered for promotion, this right is not
itself a substantive right [protected by the Fourteenth Amendment], but rather a
vehicle for arriving at the ultimate promotion decision”); Jacobs, Visconsi &
Jacobs, Co. v. City of Lawrence, Kan., 927 F.2d 1111, 1117 (10th Cir. 1991)
(“The Supreme Court has recognized that the mere existence of an entitlement to
a hearing under state law, without further substantive limitation, does not give
rise to an independent substantive liberty interest protected by the [F]ourteenth
[A]mendment.”).
The Utah state court decisions cited by Ms. Simmons are not to the
contrary. Those cases do suggest that some at-will employees may have contract-
based rights under state law. See, e.g., Thurston, 835 P.2d at 169-70 (holding in a
breach of contract action that a state statute established that “[e]mployees have a
right to rely on the layoff and termination procedures advanced by their
employers” and that “[t]o the extent that [the government employer] considered
factors in addition to seniority, ability, and merit, the County’s termination [of the
plaintiff’s] employment was in violation of the [County Personnel Management
Act]”); Lowe, 779 P.2d at 670 (holding that an at-will employee stated a cause of
action for breach of contract based on an employer’s failure to follow the
provisions of a policy manual that required the employer to provide warnings
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before terminating employees). However, the Utah state court cases do not apply
the standard for determining the existence of a property interest under the
Fourteenth Amendment. Although Ms. Simmons’s allegations could conceivably
support a state law cause of action based on the District’s failure to follow its RIF
policy, she has not asserted such a cause of action here.
Accordingly, we conclude that the district court applied the correct legal
standard—a legitimate claim of entitlement to continued employment—in
concluding that Ms. Simmons lacked a property interest protected by the
Fourteenth Amendment.
C. Ms. Simmons’s testimony about the effect of the RIF policy is not
controlling.
As a final challenge to the district court’s conclusion that she lacked a
property interest in her job, Ms. Simmons argues that the district court’s decision
is not supported by the evidence. She cites her own testimony that she was
familiar with the District’s RIF policy, that it applied to her, and that her
termination violated the RIF policy. In her brief, she argues that “[t]here was no
evidence to the contrary presented at [t]rial.” Aplt’s Br. at 22.
We discern no grounds for reversal in this cursory argument. The
significance of the policy—i.e., whether it created a property interest—is a legal
question that cannot be resolved by Ms. Simmons’s testimony. Ripley, 559 F.3d
at 1123-26 (treating the issue of whether an employee had a protected property
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interest as a legal question). For the reasons stated above, the RIF policy did not
create a property interest protected by the Fourteenth Amendment, and Ms.
Simmons’s testimony does not affect that conclusion. 2
III. CONCLUSION
Because Ms. Simmons lacked a property interest in her continued
employment, we AFFIRM the district court’s order granting judgment in favor of
the District.
Entered for the Court,
Robert H. Henry
Chief Judge
2
In light of our holding that Ms. Simmons lacked a property interest in her
continued employment, we do not consider her second argument in this
appeal—that the district court should reconsider its factual finding that she would
have been discharged even if the District had followed its RIF policy. As the
prior panel explained, the district court’s finding—that Ms. Simmons would have
been discharged in any event–goes to the question of damages rather than
liability. Because Ms. Simmons lacked a property interest, the damages question
is not relevant here.
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