                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                January 12, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                             FOR THE TENTH CIRCUIT




    JOSEPH GOSLINE,

               Plaintiff-Appellant,

    v.                                                  No. 09-2087
                                           (D.C. No. 1:07-CV-01274-MCA-RLP)
    WILLIAM C. SISNEROS, in his                          (D. N.M.)
    individual capacity; JOHN T. DUFF,
    in his individual capacity;

               Defendants-Appellees,

    NEW MEXICO FINANCE
    AUTHORITY; ROBERT CASWELL
    INVESTIGATIONS,

               Defendants.


                             ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Plaintiff Joseph Gosline appeals from the grant of summary judgment

entered in favor of defendants on his claims brought under 42 U.S.C. § 1983,

based on the involuntary termination of his employment with defendant New

Mexico Finance Authority (“NMFA”). We exercise jurisdiction under 28 U.S.C.

§ 1291 and affirm.

                                    Background

      We provide a brief recitation of the facts relevant to the issues raised on

appeal. Mr. Gosline was employed as the Chief Financial Officer (“CFO”) for

NMFA, a quasi-governmental instrumentality established by New Mexico statute

to manage and invest funds related to state and municipal bonds. Defendant

Sisneros was NMFA’s Chief Executive Officer during the relevant period.

Defendant Duff was the Chief Operating Officer.

      In the summer of 2007, it was discovered that a computer virus had

infected NMFA’s computer system, so the information technology (“IT”)

supervisor began monitoring computer usage. Eventually the IT supervisor hired

defendant Robert Caswell Investigations (“RCI”) to investigate possible computer

misuse. Mr. Gosline’s computer revealed the presence of email with

inappropriate sexual content. On November 2, 2007, Mr. Gosline was

interviewed by an RCI representative about his use of his work computer.

Mr. Gosline also took a polygraph examination concerning financial

improprieties, which he “passed.” Notwithstanding the successful polygraph,

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Mr. Gosline was immediately placed on administrative leave based on information

that he had misused his work computer.

      Two days earlier, on October 31, 2007, Mr. Gosline had cooperated in an

investigation conducted by the Environmental Protection Agency (“EPA”) into an

anonymous complaint that a senior NMFA official (not Mr. Gosline) had

misappropriated agency funds. Shortly after the interview, the EPA decided that

no further investigation was warranted.

      A pretermination hearing was held on December 6, 2007. On December 11,

2007, Mr. Gosline’s employment was terminated for violating the computer-use

policy by using his work computer to visit dating sites and to solicit sexual

liaisons. Mr. Sisneros determined that progressive discipline was not appropriate

due to Mr. Gosline’s position of authority and the nature of his actions.

Mr. Gosline disputed that the computer-use policy was ever implemented.

      Mr. Gosline sued his former employer, NMFA, and supervisors Sisneros

and Duff, as well as RCI, the investigating agency. He brought numerous claims

under both federal and state law. On March 30, 2009, the district court issued

three thorough and comprehensive orders granting summary judgment to

defendants on the federal claims. The court also dismissed the state-law claims

without prejudice, declining to exercise jurisdiction over them.




                                          -3-
      Mr. Gosline appeals the district court’s ruling that he did not have a

constitutionally-protected property interest in his employment and that defendants

Sisneros and Duff were entitled to qualified immunity on that claim. He further

argues that the district court improperly applied the summary-judgment standard

because the court did not construe all inferences in his favor and did not

recognize that there existed material disputed facts. Specifically, he maintains

that the court should have inferred that the two-day interval between his EPA

investigative interview and his placement on administrative leave demonstrates

that defendants Sisneros and Duff had an improper motive for terminating him.

Mr. Gosline has abandoned on appeal all other claims, including all claims

against defendants NMFA and RCI.

                                Standards of Review

      “We review de novo the district court’s summary judgment decision,

applying the same standard as the district court.” Berry & Murphy, P.C. v.

Carolina Cas. Ins. Co., 586 F.3d 803, 808 (10th Cir. 2009) (quotation omitted).

Summary judgment is appropriate “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). “When reviewing a grant of summary judgment on appeal,

we construe all factual inferences in favor of the party against whom summary




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judgment was entered.” Barrett v. United States, 561 F.3d 1140, 1145 (10th Cir.),

cert. denied, 130 S. Ct. 396 (2009).

                                       Analysis

      The pivotal issue is whether Mr. Gosline had a constitutionally protected

property interest in his continued employment. “[D]ischarge from employment is

actionable under § 1983 if an employee possesses a protectable property or liberty

interest in his employment. In the employment context, a property interest is a

legitimate expectation in continued employment. We determine whether such a

property interest exists by looking at state law.” Hesse v. Town of Jackson,

541 F.3d 1240, 1245 (10th Cir. 2008) (citations and quotations omitted).

Therefore, we apply the law of New Mexico to determine whether Mr. Gosline

had a property interest in his continued employment.

      Under New Mexico law, “[e]mployment without a definite term is

presumed to be at will.” Trujillo v. N. Rio Arriba Elec. Coop, Inc., 41 P.3d 333,

341 (N.M. 2001). At-will employment “can be terminated by either party at any

time for any reason or no reason, without liability.” Hartbarger v. Frank Paxton

Co., 857 P.2d 776, 779 (N.M. 1993). Mr. Gosline relies on an exception to this

general rule: “where the facts disclose the existence of an implied employment

contract provision that limits the employer’s authority to discharge.” Trujillo,

41 P.3d at 341 (quotation omitted). Factors that may “support[] an implied

contract [include] an employee handbook, . . oral representations, . . the conduct

                                         -5-
of the parties, or . . . a combination of representations and conduct.” Hartbarger,

857 P.2d at 780.

      The NMFA personnel manual states that employment is at-will. Section 1.2

of the manual reads as follows:

      Employment with NMFA is “at-will” employment. . . . Nothing in
      this policy confers on an employee any property rights to their [sic]
      position . . . . While the Authority generally adheres to progressive
      discipline, it is not bound or obligated to do so. Again, in the sole
      discretion of the Authority, the employee may be terminated at any
      time, with or without notice or cause. As an at will employee, the
      employee is not guaranteed, in any manner, that he or she will be
      employed for any set period of time.

Aplt. App. at 316-17.

      Mr. Gosline contends that the district court ignored Section 8.11 of the

personnel manual. Section 8.11 provides, in relevant part:

      [T]he Authority will generally use a system of progressive discipline,
      except that the nature and severity of the discipline will be
      determined on an individual basis according to the particular
      circumstances. Depending upon the seriousness of the issue being
      addressed, any and all of the steps outlined below may be bypassed
      during the disciplinary process. . . .

      ....

      . . . The Executive Director will decide whether there are reasonable
      grounds to support discharging the employee and will communicate
      his/her decision to the employee in writing usually within three days
      of the pre-termination meeting.

Id. at 320-22 (emphasis added). Relying solely on the reference to “reasonable

grounds” in the final quoted sentence, Mr. Gosline argues that his employer was


                                         -6-
required to have “reasonable grounds” to terminate him, thus creating an implied

contract of employment. But Mr. Gosline disregards the preceding quoted

sentence that explicitly permits the NMFA to bypass any or all of the described

disciplinary procedures at the discretion of the NMFA.

      New Mexico law requires “that the totality of the parties’ relationship,

circumstances, and objectives will be considered to overcome the presumption

that the employment contract was terminable at will.” Newberry v. Allied Stores,

Inc., 773 P.2d 1231, 1234 (N.M. 1989). Section 8.11’s reference to “reasonable

grounds” in a discharge decision does not create an implied employment contract

in the face of the manual’s explicit statements that employment is at-will and the

disciplinary process can be bypassed entirely at the employer’s discretion.

Similarly, the manual’s clear language stating that employment is at-will, even

though a pretermination hearing could be provided at the NMFA’s discretion, does

not give rise to an inference that granting an employee such a hearing changed the

at-will nature of the employment. Mr. Gosline has not “shown that the employer

has demonstrated an intent to restrict its power to discharge.” Hartbarger,

857 P.2d at 782. Accordingly, the district court correctly determined that

Mr. Gosline did not have a protected property interest in his employment.

      Mr. Gosline also contends that there is an ambiguity in the personnel

manual when reading Sections 1.2 and 8.11 together. As our discussion above

demonstrates, the manual clearly states that employment is at-will and the

                                         -7-
employer has discretion to terminate an employee without “reasonable grounds.”

Therefore, the district court correctly held as a matter of law that the personnel

manual was not ambiguous on the issue of at-will employment. See Mark V, Inc.

v. Mellekas, 845 P.2d 1232, 1235 (N.M. 1993) (“The question whether an

agreement contains an ambiguity is a matter of law to be decided by the trial

court.”).

      We turn to Mr. Gosline’s argument that defendants Sisneros and Duff were

not entitled to qualified immunity on his property-right claim. The doctrine of

qualified immunity provides a defendant immunity from suit “unless the official’s

conduct violated a clearly established constitutional right.” Pearson v. Callahan,

__ U.S. __, 129 S. Ct. 808, 816 (2009). Because Mr. Gosline “failed to make a

showing that [he] had a protected property interest in continued employment, [he]

failed to meet [his] burden to show defendants violated a clearly established

right.” Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 578 (10th Cir. 1996).

Consequently, defendants Sisneros and Duff are entitled to qualified immunity on

that claim.

      Next, we consider Mr. Gosline’s claim that his First Amendment

free-speech rights were abridged because he was fired in retaliation for speaking

to the EPA investigator. He claims that the evidence that he was suspended two

days after meeting with the EPA investigator shows that he was fired for improper

reasons. The scant record evidence pertaining to the investigation indicates

                                          -8-
(1) that it was not related to Mr. Gosline’s employment or suspension, (2) that his

cooperation with the EPA did not implicate his supervisors or anyone else at

NMFA, and (3) that nothing he told the EPA investigator could have been

interpreted as engendering hostility. We have held in the

employment-discrimination context that “[c]lose temporal proximity between the

employee’s complaint and the adverse employment action is a factor in

determining whether the employer’s proffered reason is a pretext for retaliation,

[but] close temporal proximity . . . is not sufficient by itself to raise an issue of

fact.” Pastran v. K-Mart Corp., 210 F.3d 1201, 1206 (10th Cir. 2000).

Accordingly, we conclude that the two-day interval between the October 31 EPA

interview and the November 2 RCI interview resulting in Mr. Gosline’s

suspension, does not by itself demonstrate an improper motive.

      Moreover, Mr. Gosline does not challenge on appeal the district court’s

determination that his First Amendment claim failed because, during the EPA

interview, he was speaking pursuant to his official duties as CFO. Therefore, the

court concluded, pursuant to Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), that

his speech did not enjoy First Amendment protection. By electing not to

challenge the district court’s application of Garcetti, Mr. Gosline has waived any

objection to the court’s holding that his statements to the EPA are not actionable.

See Utah ex rel. Div. of Forestry, Fire & State Lands v. United States, 528 F.3d

712, 724 (10th Cir. 2008) (holding appellants’ failure to challenge district court’s

                                           -9-
independent ground for decision “waived any objection to the district court’s

ruling on this ground”).

      Finally, we address Mr. Gosline’s claim that the district court did not apply

the correct standards on summary judgment. He argues that the court failed to

draw all inferences in his favor and failed to recognize that material facts were in

dispute on the following points: (1) whether his employer had reasonable grounds

to terminate him under Section 8.11 of the personnel manual; (2) whether the

NMFA had implemented or enforced a computer-use policy; (3) whether his

suspension occurring two days after his EPA interview gave rise to an inference

that he was fired for improper reasons; (4) whether the NMFA’s decision to hold a

pretermination hearing gave rise to an inference that his employment was not

at-will; and (5) “[i]f the purpose of the polygraph examination was to uncover

financial improprieties, the fact that Gosline passed the polygraph and the NMFA

still placed him on administrative leave should have led the Court to infer that the

mere fact that Gosline was implicated in the EPA investigation was the true

reason for placement on leave and eventual termination,” Aplt. Br. at 17 (record

citation and quotation omitted).

      As discussed above, the district court correctly decided the issue of at-will

employment as a matter of law based on the undisputed facts. Because

Mr. Gosline’s employment was at-will, he could have been terminated for any

reason or no reason, so whether he violated any computer-use policy is irrelevant.

                                         -10-
Similarly, our conclusion that Mr. Gosline waived his challenge to his free-speech

claim forecloses his arguments concerning his EPA interview.

                                    Conclusion

      The judgment of the district court is AFFIRMED.


                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




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