Earles v. Cleveland

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 28, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
ANDREA EARLES,
Plaintiff - Appellant,
v. No. 19-6157
(D.C. No. 5:17-CV-01186-D)
ROD CLEVELAND, individually acting as (W.D. Okla.)
an elected member of the Board of County
Commissioners for Cleveland County;
DARY STACY, individually acting as an
elected member of the Board of County
Commissioners for Cleveland County;
STEPHAN KORANDA, individually
acting as the Executive Director of the
Cleveland County Fair Board; HARLEN
FIPPS, individually acting as an elected
member of the Cleveland County Fair
Board; JIMMY YOUNG, individually
acting as an elected member of the
Cleveland County Fair Board,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES and MORITZ, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Andrea Earles alleges she suffered sex discrimination during her employment
with the Cleveland County (Oklahoma) Fair Board, and that she was wrongfully
terminated from that job. Over the course of two lawsuits, she has asserted numerous
theories of relief under both federal and Oklahoma law. In the second lawsuit, the
district court dismissed with prejudice all of her federal claims and some of her
state-law claims, and declined to exercise supplemental jurisdiction over her
remaining state-law claims, per 28 U.S.C. § 1367(c).
Earles now appeals the dismissal of certain federal claims. We have
jurisdiction under 28 U.S.C. § 1291,1 and we AFFIRM.
I. BACKGROUND
A. First Lawsuit
Earles filed her first suit in Oklahoma state court in early 2016. She named as
defendants the Board of County Commissioners for Cleveland County (“County”),
the Cleveland County Fair Board (“Fair Board”), and an individual named Stephan
Koranda.
Earles alleged that the Fair Board (a political subdivision of the County) hired
Earles as a full-time administrative assistant in 2010. Earles had no problems with
her Fair Board job until late 2013, when she applied for the executive director
1
See Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1209 n.1
(10th Cir. 2000) (“Federal appeals courts have consistently held . . . that they have
jurisdiction to review a district court order dismissing federal claims on the merits
where the district court subsequently exercised its discretion under [28 U.S.C.]
§ 1367 to remand supplemental state law claims to state court.”).
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position. She was “summarily rejected for the position as she was a younger female
and presumably less qualified than any male applicant such as Stephen [sic] Koranda,
who had been predetermined for the position by [County] Commissioner [Darry]
Stacy, his friend.” Aplee. Supp. App. at 11.
As executive director, Koranda treated male employees as friends but verbally
and emotionally abused younger female employees, including Earles. Koranda also
used Earles as a scapegoat for his own mistakes, such as when a Fair Board meeting
was cancelled because he forgot to timely post the meeting agenda.
Koranda and others further harassed Earles because she would call out
Koranda when he impermissibly used Fair Board property and funds for personal
reasons. Similarly, Earles suffered harassment when she refused Koranda’s requests
to falsify portions of Fair Board meeting minutes, and when she complained that
“open meetings violations occurred with the hiring of Koranda as Commissioner
Stacy informed and demanded that the Fair Board hire Koranda as he was Stacy’s
friend.” Id. at 16.
Matters came to a head in May 2014, when Earles was fired at the direction of
“Koranda and[/]or [County] Commissioners Stacy and[/]or [Rod] Cleveland as well
as Fair Board members Harlen Fipps and Jimmy Young.” Id. at 13. The Fair Board
(other than Fipps and Young) was not aware that Earles would be terminated, and no
Fair Board meeting to discuss Earles’s termination took place beforehand.
After the termination, some Fair Board members investigated. Id. at 14.
Eventually, “Koranda was asked to resign . . . due to the concerns about the
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procedures and manner [by which Earles had been] terminated and the hostility
created [during] his short employment.” Id. But Commissioner Cleveland has since
“discussed [Earles’s] personnel file and employment with members of the public and
Fair Board members and intentionally maligned [Earles].” Id. at 15.
Based on these accusations, Earles alleged gender discrimination in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and
denial of “both procedural and substantive due process prior to being deprived of her
employment and liberty interests in her good name and employment history.” Id.
at 17. She also asserted several state-law claims.
Defendants removed the action to the United States District Court for the
Western District of Oklahoma and then moved to dismiss. They argued, among other
things, that Title VII does not permit Earles to sue Koranda because it applies only to
employers, not individual employees.
Earles responded with two filings. First, she filed a motion to amend her
complaint, asserting that she could “resolve most disputed pleading issues by
amending her complaint and . . . properly nam[ing] the real parties in interest.” Id.
at 61. Second, she filed a response to the motion to dismiss, contesting some of the
defendants’ arguments but mostly declaring those arguments moot in light of her
motion to amend. The district court granted the motion to amend and consequently
denied the motion to dismiss as moot.
In her amended complaint, Earles dropped the County and Fair Board as
defendants, but added County Commissioners Cleveland and Stacy and Fair Board
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members Fipps and Young. Koranda remained a defendant.2 Factually, Earles
restated nearly verbatim her original allegations and claims for relief, and then added
some state-law claims.
Defendants Koranda, Cleveland, and Stacy moved to dismiss the amended
complaint, asserting various arguments, including that Title VII does not permit suits
against non-employer individuals. Earles filed a response, but soon after filed a
stipulation of voluntary dismissal without prejudice under Federal Rule of Civil
Procedure 41(a)(1)(A)(ii). She provided no explanation for the dismissal.
B. Second (Current) Lawsuit
1. Original Complaint & Motion to Dismiss
The same day Earles dismissed her first lawsuit, she filed a second lawsuit in
Oklahoma state court against the same defendants named in the amended complaint
she had just dismissed. Her factual allegations were mostly taken verbatim from that
complaint as well. She added, however, that she “was . . . denied [the right] to freely
associate with Fair Board [members] or other public or private persons as to the
alleged basis for her termination.” Aplt. App., Vol. I at 28–29. She similarly alleged
that she “was discriminated against because of her . . . desire to free[ly] associate
with the Fair Board members and[/]or other public or private persons regarding Fair
Board business.” Id. at 29. And, in support of her procedural and substantive due
process allegations, she added that she had been “deprived of her employment
2
The defendants named in this amended complaint are the same that Earles
eventually sued in her second lawsuit, which is the lawsuit on appeal before us.
5
opportunities and benefits of her long[-]standing agreement with the Fair [Board].”
Id. But, by way of claims for relief, Earles repeated the claims from her previous
lawsuit, mostly verbatim.
Defendants removed this second lawsuit to federal court and jointly moved to
dismiss. As in their previous motions, they argued that Title VII cannot apply to
individuals. Defendants further argued that Earles had not plausibly pleaded any of
her claims.
Earles said nothing in her response brief about the argument that Title VII does
not apply to individuals. Regarding plausible pleading, however, Earles focused on
her procedural due process claim, asserting for the first time “a limited property right
to the procedures provided by the [Oklahoma] Open Meetings Act.” Id. She
explained that “the statutory procedures of the Open Meetings Act create an
enforceable implied contract which was breached when the Open Meetings Act was
violated.” Id. at 148. She also added that defendants “jointly participated in
stigmatizing [her] good name and reputation either in the media and[/]or before the
Fair Board members and members of the attending public.” Id. Earles nonetheless
concluded with a request for leave to amend.
The district court granted defendants’ motion with prejudice as to certain
state-law claims, but granted the remainder of the motion without prejudice to
amendment.
2. Amended Complaint & Renewed Motion to Dismiss
Earles’s amended complaint—which is her current complaint—presents most
6
of the same material included in her previous three complaints, and asserts causes of
action for:
 deprivation of procedural and substantive due process, in violation of
the “First, Fifth, and Fourteenth Amendments,” id. at 232, because
defendants did not follow the Oklahoma Open Meetings Act, acted with
deliberate indifference toward gender discrimination and retaliation for
whistleblowing, and placed false accounts of wrongdoing in her
personnel file;3 and
 sexual discrimination and sex-based hostile work environment in
violation of Title VII.
Earles also asserts various state-law claims.
Defendants again moved to dismiss. They argued, among other things, that:
(i) non-employer individuals cannot be liable under Title VII; (ii) the First
Amendment right to freedom of association does not extend to associating with
co-workers during work hours for work-related reasons; (iii) the Fifth Amendment
applies only to the federal government; (iv) Earles did not have a property interest in
her Fair Board job, so procedural and substantive due process do not apply; and
(v) Earles failed to plausibly plead her Title VII and state-law theories of relief.
Concerning her First Amendment claim, Earles responded that her “reference
to [a] First Amendment violation is addressed as part of tort actions and is not alleged
3
Presumably her allegation that defendants denied her the right to associate
with the Fair Board falls under the First Amendment portion of this claim.
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as a standalone 1983 action.” Id. at 288. She then directed the reader to a section of
her brief discussing a state-law claim for intentional infliction of emotional distress,
where she argued that “Oklahoma has a clear public policy to protect those
employees who choose to exercise their First Amendment rights.” Id. at 304
(emphasis removed). She did not explain the connection between this argument and
her claim for intentional infliction of emotional distress.
As for due process, Earles asserted for the first time that “the county’s
personnel policy manual” supported her claim of a property interest in her job. Id.
at 291. She also repeated her previous description of her property interest: “a limited
property right to the procedures provided by the Open Meetings Act.” Id. at 293. In
terms of a liberty interest, she asserted an interest in her “good name and reputation.”
Id.
Turning to her Title VII claim, Earles argued that she had plausibly pleaded a
constitutional violation, namely, gender discrimination in violation of the Fourteenth
Amendment. She did not explain whether she now meant to plead an Equal
Protection claim only, or an either-or gender discrimination claim (Equal Protection
or Title VII or both). She also did not respond to defendants’ argument that Title VII
applies to employers, not individuals.
3. District Court’s Dismissal Order
The district court granted defendants’ motion to dismiss. See Earles v.
Cleveland, 418 F. Supp. 3d 879 (W.D. Okla. 2019). It rejected as untimely Earles’s
apparent attempt to assert a First Amendment retaliation claim by way of her
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intentional infliction of emotional distress claim. Id. at 892–93 & n.4. The court
also held that the emotional distress claim did not meet the high bar established by
Oklahoma law for such a claim. Id. at 897–98. As for her original First Amendment
theory—denial of the right to associate with the Fair Board—the district court held
that Earles had no such First Amendment right under the circumstances. Id. at 893.
The district court dismissed Earles’s Fifth Amendment due process claim
because the Fifth Amendment applies only to the federal government. Id. at 894. As
for her Fourteenth Amendment due process theories, the district court found Earles
had not plausibly pleaded a property interest in her job. Id. at 894–95. The court
specifically rejected as untimely Earles’s attempt to invoke the County policy manual
as a basis for that property interest. Id. at 894 n.5. And the court found that Earles
had not pleaded any real stigma arising from the defendants’ alleged publicizing of
the reasons they terminated her, so she also failed to state a deprivation of a liberty
interest in her reputation. Id. at 897.
Regarding Title VII, the district court agreed with defendants that the statute
does not apply to non-employer individuals, id. at 892, and that Earles had otherwise
failed to plausibly plead a claim, id. at 898–900. As for Earles’s new argument that
her Title VII claim was instead (or also) an Equal Protection claim, the district court
deemed the argument untimely and refused to consider it. Id. at 900 n.8.
Turning to Earles’s remaining state-law claims, the district court declined to
exercise supplemental jurisdiction over them per 28 U.S.C. § 1367(c)(3), and
remanded them to state court. Id. at 900–01. Finally, the district court announced it
9
was dismissing Earles’s federal claims and her emotional distress claim with
prejudice because this was Earles’s “fourth attempt to bring her claims. Although
liberality in amendment is important to assure a party a fair opportunity to present
her claims, equal attention should be given to the idea that there must be an end to a
litigation.” Id. at 901 & n.11.
II. ANALYSIS
Earles appeals the district court’s dismissal of her due process theories. She
also argues that the district court should have given her an opportunity to amend to
state a First Amendment retaliation claim.4 We review de novo the district court’s
determinations that Earles failed to state a claim, Janke v. Price, 43 F.3d 1390, 1391
(10th Cir. 1994), and we review for abuse of discretion the district court’s decision to
dismiss with prejudice, rather than with leave to amend, United States ex rel. Stone v.
Rockwell Int’l Corp., 282 F.3d 787, 809 (10th Cir. 2002).
A. Procedural Due Process
“To determine whether a plaintiff was denied procedural due process, we
engage in a two-step inquiry: (1) Did the individual possess a protected interest to
which due process protection was applicable? (2) Was the individual afforded an
appropriate level of process?” Hennigh v. City of Shawnee, 155 F.3d 1249, 1253
4
Earles’s opening brief contains an unelaborated assertion that the district
court erred in holding Title VII does not apply to non-employer individuals. See
Aplt. Opening Br. at 12. She also inserts two instances of the phrase “equal
protection,” without elaboration. Id. at 12, 14. “Arguments inadequately briefed in
the opening brief,” such as these ones, “are waived.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 679 (10th Cir. 1998).
10
(10th Cir. 1998). Earles alleges a property interest in her Fair Board job and a liberty
interest in her good name and reputation.
1. Property Interest
“The standard for the existence of a property right in [public] employment is
whether the plaintiff has a legitimate expectation of continued employment.” Id.
This usually requires tenure, an employment contract for a definite term, a clearly
implied promise of continued employment, or a statute, regulation, or state-
law-endorsed collective bargaining agreement that requires cause (or similar
concepts) for termination. See Bd. of Regents of State Colleges v. Roth, 408 U.S.
564, 576–77 (1972); Greene v. Barrett, 174 F.3d 1136, 1140 (10th Cir. 1999). Earles
asserts that Oklahoma’s Open Meetings Act, Okla. Stat. tit. 25, §§ 301–14, creates a
legitimate expectation of continued employment. The district court disagreed, and so
do we.
In Trant v. Oklahoma, we rejected a claim that the Open Meetings Act creates
an implied contract with public employees, enforceable through a state-law breach of
contract action. 754 F.3d 1158, 1174 (10th Cir. 2014). We reasoned that the Open
Meetings Act “does not guarantee an employee any procedural rights by virtue of his
employment. [It] was enacted for the public’s benefit and not to provide a private
right of action in employment matters.” Id. Although one might sue directly under
the Act for whatever relief the Act makes available, one “cannot seek reinstatement
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or damages on a breach of implied contract theory.” Id. at 1175.5
Although Trant arose in the breach-of-contract context, its reasoning applies
equally to the procedural due process context. The Open Meetings Act is meant “to
encourage and facilitate an informed citizenry’s understanding of the governmental
processes and governmental problems.” Okla. Stat. tit. 25, § 302. It contains no hint
that it was meant to provide public employees with an expectation of continued
employment. It therefore does not show that Earles had a property interest in her Fair
Board job. The district court did not err in dismissing this aspect of Earles’s
procedural due process claim.
2. Liberty Interest
Although defendants’ actions did not deprive Earles of a constitutionally
protected property interest, the “liberty” component of the Due Process Clause may
still provide relief. More specifically, “[a] public employee has a liberty interest in
his good name and reputation as they relate to his continued employment.”
McDonald v. Wise, 769 F.3d 1202, 1212 (10th Cir. 2014).
To state a claim for deprivation of one’s liberty interest in good name and
reputation, the plaintiff must plausibly allege the following:
1. a state actor made a statement that impugned the plaintiff’s good name,
5
Earles’s original and amended complaints in her previous lawsuit, and her
original complaint in this lawsuit, contained a state-law declaratory judgment claim
alleging an Open Meetings Act violation. The district court dismissed that claim
from Earles’s original complaint in this lawsuit. Earles has not appealed that
dismissal.
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reputation, honor, or integrity;
2. the statement was false;
3. the statement was made during the course of termination and forecloses
other employment opportunities; and
4. the statement was “published” (disclosed to the public).
Id. The remedy for a deprivation of the liberty interest in good name and reputation
is “an adequate name-clearing hearing.” Id. at 1213.
The district court concluded that Earles had not plausibly pleaded the first
element of her claim because the allegedly false statements were not sufficiently
stigmatizing. See Earles, 418 F. Supp. 3d at 897 (“The statements alleged in the First
Amended Complaint do not implicate concerns of constitutional stature.” (internal
quotation marks omitted)). The district court also concluded that Earles “ha[d] not
sufficiently pled facts to show . . . the alleged statements have precluded her from
other employment opportunities”—in other words, that she had failed to plausibly
plead the third element of her claim. Id. We agree with the first conclusion and
therefore need not reach the second.
To satisfy the first element of a reputational liberty interest claim, the
allegedly false statement must be stigmatizing, not merely disparaging. “[N]ot every
dismissal assumes a constitutional magnitude. The concern is only with the type of
stigma that seriously damages an individual’s ability to take advantage of other
employment opportunities.” Weathers v. W. Yuma Cty. Sch. Dist. R-J-1, 530 F.2d
1335, 1339 (10th Cir. 1976) (internal quotation marks omitted); see also Graham v.
13
City of Okla. City, 859 F.2d 142, 145 n.2 (10th Cir. 1988) (“For an employee to make
a successful liberty deprivation claim, he must show that his dismissal resulted in the
publication of information which was false and stigmatizing.”); Asbill v. Hous. Auth.
of Choctaw Nation, 726 F.2d 1499, 1503 (10th Cir. 1984) (“[C]ircumstances which
make an employee somewhat less attractive to employers would hardly establish the
kind of foreclosure of opportunities amounting to a deprivation of liberty.” (internal
quotation marks omitted)).
Here, Earles’s only clear assertion of an allegedly false, published statement is
that
Defendant Cleveland by agreement with Defendant Stacy
openly discussed Plaintiff’s personnel file and employment
with Koranda as well as other members of the public and
other Fair Board members including Defendants Fipps and
Young. Defendants Stacy and Cleveland intentionally
maligned without good cause Plaintiff[’s] reputation and
good name by intentionally leading the public to believe
that she was being disciplined for good cause . . . .
Aplt. App., Vol. II at 223. Earles does not describe the contents of her personnel file
or the details of her employment with Koranda that permitted Stacy and Cleveland to
represent that she had been disciplined for good cause. She may mean to refer,
however, to Koranda’s accusations that Earles was “doing personal activities on her
computer and . . . [had] anger problems,” id. at 214, and his “derogatory statements
about her such as she was incompetent and worthless[,] . . . was not working hard and
[was] trying to disrupt his activities,” id. at 216.
Assuming Stacy and Cleveland publicized statements such as these, they do
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not create the sort of stigma required for a liberty interest deprivation. See Sullivan
v. Stark, 808 F.2d 737, 739 (10th Cir. 1987) (“The [plaintiff’s termination] letter . . .
consisted of a variety of complaints against [him], each of which asserted that he was
negligent or derelict in performing the duties of [his government job]. These
complaints do not implicate concerns of constitutional stature.”); Stritzl v. U.S.
Postal Serv., 602 F.2d 249, 252 (10th Cir. 1979) (“the characterization of Stritzl by
[his former employer] as one possessed of ‘poor work habits and low productivity’
. . . [does not] amount to a type of ‘stigma’ [sufficient for a liberty interest
deprivation]”); compare Palmer v. City of Monticello, 31 F.3d 1499, 1503 (10th Cir.
1994) (“We are satisfied that an accusation that a police officer falsified a speeding
ticket qualifies as a stigmatizing charge which amply supports that element of a
liberty interest violation.”); McGhee v. Draper, 564 F.2d 902, 910 (10th Cir. 1977)
(district court should not have directed verdict against plaintiff on liberty interest
claim where plaintiff, a school teacher, had been accused of “[distributing] allegedly
pornographic materials,” “improper changing of grades,” “misconduct with male
students,” and “drunkenness”).
Earles fails at the outset to raise a liberty interest worthy of procedural due
process protection. The district court correctly dismissed this claim.
B. Substantive Due Process
In some circumstances, a public employee’s termination can be “so arbitrary or
capricious as to violate the concept of ‘substantive’ due process embodied in the
Fourteenth Amendment.” Brenna v. S. Colo. State Coll., 589 F.2d 475, 476
15
(10th Cir. 1978). Such a termination must be “conscience shocking” to qualify as a
substantive due process violation. Koessel v. Sublette Cty. Sheriff’s Dep’t, 717 F.3d
736, 750 (10th Cir. 2013).
The district court’s opinion includes a heading for substantive due process but
the ensuing analysis actually addresses procedural due process (as it relates to
Earles’s reputational liberty interest claim). See Earles, 418 F. Supp. 3d at 895–97.
The district court therefore made no ruling about Earles’s substantive due process
claim.
“Where an issue has not been ruled on by the court below, we generally favor
remand for the district court to examine the issue,” Tabor v. Hilti, Inc., 703 F.3d
1206, 1227 (10th Cir. 2013), unless the “proper resolution is beyond any doubt,”
Singleton v. Wulff, 428 U.S. 106, 121 (1976). Here, the proper resolution is beyond
any doubt.
“In order to present a claim of denial of ‘substantive’ due process by a
discharge for arbitrary or capricious reasons, a liberty or property interest must be
present to which the protection of due process can attach.” Brenna, 589 F.2d at 476.
Because the district court correctly concluded that Earles failed to plausibly plead a
deprivation of a property interest in her employment or a liberty interest in her
reputation, the outcome of Earles’s substantive due process claim is inevitable: it
likewise fails. Accordingly, we affirm notwithstanding the district court’s lack of
analysis on this point.
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C. Further Leave to Amend
Earles argues that the district court should have granted her leave to amend so
she could plead a First Amendment retaliation claim—in what would effectively be a
fourth amended complaint (the fifth overall).
“The court should freely give leave [to amend] when justice so requires.” Fed.
R. Civ. P. 15(a)(2). Thus, the district court’s discretion to deny leave in this context
is confined to circumstances “such as undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Particularly relevant here,
Courts will properly deny a motion to amend when it
appears that the plaintiff is using Rule 15 to make the
complaint a moving target, to salvage a lost case by
untimely suggestion of new theories of recovery, to present
theories seriatim in an effort to avoid dismissal, or to
knowingly delay raising an issue until the eve of trial.
Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006) (internal quotation
marks, brackets, and citations omitted).
Save for raising a new theory on the eve of trial, this case embodies the
foregoing quotation. Throughout the proceedings below, Earles continually modified
her theories—often through briefing alone, rather than by amending the complaint.
Earles has continued this approach on appeal. As previously noted, Earles
represented to the district court that her First Amendment claim was really part of her
17
intentional infliction of emotional distress claim. Now, in her opening brief, she
argues that she can satisfy the elements of a standalone First Amendment retaliation
claim. And, in her reply brief, she asserts for the first time a new “class of one”
Equal Protection theory.
In short, the district court did not abuse its discretion in concluding that a fifth
chance to state viable claims was unwarranted. It appropriately denied Earles the
opportunity to plead a First Amendment retaliation claim.
III. CONCLUSION
For the reasons stated, we AFFIRM.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
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