                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               FEB 3 2004
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 TRAVIS L. SUTHERLAND,

          Plaintiff-Appellant,
 v.

 TOOELE CITY CORPORATION; RON
 KIRBY, individually and as Chief of
 Police; C. H. BROWN; SUE CASIAS;
 LAWRENCE SILCOX; SHANNON
                                                            No. 02-4199
 WALTERS; KYLE PITTS, individually
                                                     (D.C. No. 2:00 CV-128-ST)
 and as members of the Employee Appeals
                                                               (Utah)
 Board; CHARLIE ROBERTS,
 individually and as Mayor; C. H.
 BROWN; LAWRENCE SILCOX;
 COLLEEN JOHNSON; MICHAEL
 JOHNSON; EARL COLE, individually
 and as members of the Tooele City
 Council,

          Defendants-Appellees.


                                 ORDER AND JUDGMENT*


Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and O’BRIEN,
Circuit Judge.




      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       In a 15-page complaint to which were attached 12 “exhibits” totaling 32 pages,

Travis L. Sutherland (“plaintiff”) filed suit against the Tooele (Utah) City Corporation

(“Tooele” or “City”) and 12 of its officials, the latter in their individual capacity as well

as in their official capacity.1 The basis for the action was plaintiff”s claim that he was

discharged by Tooele on July 1, 1999, from his employment as a permanent police officer

for Tooele, where he had served for some five years, and that in terminating his

employment with Tooele, the defendants violated plaintiff’s due process rights under the

Fourteenth Amendment of the United States Constitution. The first cause of action was

based on the First and Fourteenth Amendments of the United States Constitution and 42

U.S.C. § 1983.

       In a second and last cause of action, the plaintiff incorporated therein by reference

all of the allegations set forth in his first cause of action and went on to further allege that

on November 17, 1999, the Tooele City Council voted to uphold the termination of his

employment and that immediately thereafter the defendants notified the press and others

that plaintiff was discharged for reasons that “adversely impinged his good name and

reputation in the community.” As a result, the plaintiff alleged that he was “deprived of

his good name and reputation in the community and deprived of his liberty interest in



       Ron Kirby was sued individually and as Chief of Police; the five members of the
       1

Employees Appeal Board were sued individually and as members of the Board; Charlie
Roberts was sued individually and as the Mayor of Tooele; and the five members of the
Tooele City Council were sued individually and as members of the Council.

                                              -2-
violation of law,” for which he sought damages and reinstatement.

       The defendants through their attorney filed a motion to dismiss on the grounds that

“the individual defendants are protected by qualified immunity and that the plaintiff has

failed to state a claim upon which relief may be granted.” The district court denied the

defendants’ motion to dismiss and granted plaintiff’s motion to amend his complaint.

        An amended complaint was thereafter filed. The amended complaint paralleled

the original complaint, and contained the same two causes of action. The defendants in

due time filed an answer thereto. After discovery, the defendants filed a motion for

summary judgment. The plaintiff later filed a cross-motion for summary judgment. After

hearing, the district court granted defendants’ motion for summary judgment and denied

plaintiff’s cross-motion for summary judgment in a 30-page memorandum opinion and

order. Plaintiff appeals.

       The following is a not-so-brief chronology of the background facts which will

place the present controversy in focus:

                                  PRE-TERMINATION

        Plaintiff was hired by Tooele as a permanent full time police office on June 28,

1994. Under his contract with Tooele, plaintiff’s employment could not be terminated

without cause. Beginning in April 1995, and continuing until his termination on July 1,

1999, plaintiff had some 12 complaints filed against him by either citizens of Tooele or

by fellow officers on the Tooele Police Department. As a result of these several


                                           -3-
complaints, plaintiff received a verbal reprimand for offensive behavior and rudeness

occurring on April 5, 1995, and for using foul language on September 15, 1995. On

March 12, 1996, plaintiff received a written reprimand for “disposing” of beer which had

been confiscated during an arrest, the beer being found in plaintiff’s refrigerator instead

of in an evidence locker. In October, 1996, a complaint was made against plaintiff that he

had improperly questioned a female juvenile at a Tooele school. On April 4, 1997, he

received another reprimand for offensive demeanor and rudeness. On October 20, 1997,

plaintiff received a verbal reprimand for accidentally discharging a firearm in a house

during the course of a burglary investigation. On November 4, 1997, an internal

complaint was filed against the plaintiff for excessive use of force when he punched a

suspect in the face and for failing to submit a report thereof. In November 1997, plaintiff

received a written reprimand and was suspended without pay for two days when he failed

to properly dispose of a marijuana cigarette and again failed to file a report. In January,

1998, plaintiff received another written reprimand for using excessive force when he

allegedly placed pliers on the fingers of several 15-year old boys and told them that he

would squeeze the pliers harder if they didn’t tell the truth. In August, 1998, plaintiff

received a written reprimand for speeding in a police car. In November, 1998, plaintiff

allegedly filed a false report concerning verbal abuse and mishandling of evidence, which

were not “sustained.” In addition thereto and after certain “corrective measures” had

been ordered, plaintiff’s personnel file showed four employment evaluations noting his


                                            -4-
performance as being “below average,” and that he was denied a “merit raise” in January,

1998.

        On May 19, 1999, when plaintiff was five months into a six-month “corrective

action plan,” another complaint was filed against plaintiff by one Lavetta Sandoval, a

resident of Tooele. The complaint was that plaintiff had engaged in offensive and

improper behavior toward Sandoval’s 15-year old daughter. This complaint prompted the

Chief of the Tooele Police Department (“Chief Kirby”) to begin an internal affairs

investigation into Sandoval’s charges. Interviews of Sandoval, her daughter, and one of

the daughter’s friends, were videotaped and later transcribed. Plaintiff was interviewed

by Chief Kirby on two occasions concerning this, and other matters, which interviews

were videotaped and later transcribed. In the first of these two interviews, on May 15,

1999, Chief Kirby informed plaintiff of Sandoval’s complaint that plaintiff had an

improper discussion concerning sex with her daughter and that he had taken the daughter,

and her friend, to an adult novelty store to have the daughter’s navel pierced and that he

had provided them with some prescription medication. Plaintiff had been previously

cautioned that, if he lied during the internal affairs investigation, he would be fired.

        During the first of the two interviews, plaintiff admitted that he had engaged in

conversation of a sexual nature with Mrs. Sandoval when her daughter was present and

acknowledged that he had taken the daughter and her young friend to a novelty store so

that she could get her navel pierced for her sixteenth birthday. In the same interview,


                                             -5-
plaintiff told Chief Kirby that he did not talk to the Sandoval girl about oral sex during

the drive to the novelty store. Plaintiff also stated he gave the girl some medicine, but

was not sure “what type of prescription it was, matter of fact it was Ibuprofen 800’s.”

       The second interview occurred on June 12, 1999. In that interview he admitted to

engaging in sexual conversation with the young girls he had taken to the novelty store

where the daughter had her navel pierced, although the conversation occurred, according

to the plaintiff, in a manner in which he told the girls they should not engage in oral sex.

As for the medication conversation in the first interview, plaintiff in the second interview

said that the medication was not prescription, but over-the-counter Ibuprofen.

       On June 16, 1999, plaintiff was notified in two letters that Chief Kirby was

charging him with (1) a historical pattern of employee misconduct and poor performance;

(2) a violation of the Law Enforcement Code of Ethics; and (3) lying to a supervisor

during an internal affairs investigation. These letters advised him of the specific

allegations being considered against him as well as the underlying evidence supporting

the charges. These same letters informed the plaintiff that he was being placed on paid

suspension pending possible disciplinary action, and that a pre-termination decision

hearing would be held on June 30, 1999. He was also told that he was entitled to provide

Chief Kirby with a written response to the charges and was entitled to review the internal

affairs file relating to the allegations made against him. Plaintiff acknowledged receipt of

these letters and admits to being allowed to go to Chief Kirby’s office to review the


                                            -6-
internal affairs files. To all of this, plaintiff’s response to the numerous allegations was

merely, “I deny all charges listed against me.”

       On June 30, 1999, plaintiff was given a so-called pre-decision “Loudermill”

hearing. At that hearing, the charges were explained to the plaintiff and he said he

understood them. When asked if he wished to respond to those charges, he repeatedly

stated he had “no comment.”2

       Following the “Loudermill” hearing, a further hearing was set for July 1, 1999.

Plaintiff did not attend that hearing. Accordingly, Chief Kirby sent plaintiff a letter, dated

July 1, 1999, again informing him of the charges made against him and that his

employment with Tooele as a city policeman was terminated. Plaintiff was reminded of

his appeal rights in the same letter.




       2
        As concerns the amount of due process constitutionally required in a pre-
termination hearing, in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546
(1985), the Supreme Court spoke as follows:
      The essential requirements of due process, and all that respondents seek or
      the Court of Appeals required, are notice and an opportunity to respond.
      The opportunity to present reasons, either in person or in writing, why
      proposed action should not be taken is a fundamental due process
      requirement. The tenured public employee is entitled to oral or written
      notice of the charges against him, an explanation of the employer’s
      evidence, and an opportunity to present his side of the story. To require
      more than this prior to termination would intrude to an unwarranted extent
      on the government’s interest in quickly removing an unsatisfactory
      employee. (Citations omitted.)

                                             -7-
                                   POST-TERMINATION

           Plaintiff initiated the appeals process by completing the appeal form given him by

Chief Kirby and submitting it to the Tooele City Police Department.

       As permitted by the appeals procedure, plaintiff first appealed to the Tooele City

mayor and was given a hearing before Tooele City Mayor, Charlie Roberts. At that

hearing, plaintiff was represented by an attorney, one Steven Cook, who represents him in

this appeal.3 After hearing, the mayor upheld plaintiff’s termination from the Tooele

Police Department.

       Plaintiff thereafter, through counsel, appealed the mayor’s determination to the

Tooele City Employees Grievance Appeal Board. A hearing was set for September 14,

1999. On August 20, 1999, the Tooele City Attorney, Roger Baker, sent a letter to the

members of the Appeal Board, suggesting proper procedures to be followed at the appeals

hearing. A copy of that letter was sent to plaintiff’s attorney. In the body of that letter,

Baker advised plaintiff’s attorney of plaintiff’s right to present evidence at the hearing

and invited him to make procedural suggestions regarding the upcoming hearing.

       On August 26, 1999, plaintiff’s attorney objected to this letter on the grounds that

Baker had engaged in ex parte communication with the Appeals Board members, and by

a letter dated August 25, 1999, plaintiff’s attorney requested from Baker the issuance of



       Counsel spoke at great length during the hearing on his client’s behalf. At the
       3

conclusion of counsel’s statements, the Mayor asked plaintiff if he wanted to add
anything, to which plaintiff responded, “No, Steven has got it.”

                                              -8-
ten subpoenas to compel the attendance of witnesses at the hearing. Baker responded to

that request, by letter, on August 27, 1999, stating that plaintiff was entitled to call any

witness he wanted to, but that the City could not issue subpoenas on behalf of the

plaintiff. The City apparently did not have the power to issue subpoenas in an

administrative proceeding of this nature.

       About one week before the hearing, Baker delivered an unredacted copy of the

evidence binder that he was to present at the hearing, both to plaintiff’s attorney and the

members of the Board.

       The hearing before the Appeals Board took place on September 14, 1999, Cook

appearing as plaintiff’s attorney, with the City calling the Mayor and Chief Kirby as

witnesses. Both were cross-examined by Cook. At the close of the City’s case, the

plaintiff called no witnesses nor did he, himself, testify. Plaintiff’s attorney had

previously objected to one Sue Casias serving as a member of the Board because she was,

at the time, working as a secretary in the City Attorney’s office. She had been elected by

the Tooele City Employment body, to serve as a board member. At the conclusion of the

hearing, the Board voted unanimously to uphold plaintiff’s termination as a police officer

for the City.

       On October 22, 1999, the Chairman of the Tooele City Council sent a letter to

plaintiff’s attorney, informing him of plaintiff’s right to appeal the decision of the Appeal

Board to the Tooele City Council and inviting plaintiff to participate in such a hearing. In


                                             -9-
this letter, the Chairman stated that it could not issue subpoenas on plaintiff’s behalf, but

that plaintiff could present any witnesses he wished. Plaintiff did not respond to the

Council’s letter nor did he appear at the City Council meeting. In that setting, the Council

upheld plaintiff’s termination.

       At the outset of our discussion, it should be noted that we are not here reviewing

the merits of plaintiff’s discharge from the Tooele Police Department. Our basic concern

is whether the state and local rules and regulations governing discharge of a permanent

employee of the Tooele Police Department provided the plaintiff with his Fourteenth

Amendment rights to “due process.” In this regard, in Pitts v. Board of Educ., 869 F.2d

555, 557 (10th Cir. 1989), we spoke as follows:

              He [Pitts] also spends a great deal of time arguing that the
              grounds for termination which the board listed are
              unsupportable and stigmatizing. Pitts misunderstands the
              nature of his federal claim, which is an assertion that he was
              denied due process. Federal courts do not sit to second guess
              state decisions on the merits of a discharge decision, but only
              to ensure that employees are provided due process when the
              decision is made.

       Stated somewhat differently, this is not an action for breach of contract. We are

not here concerned with whether plaintiff’s termination procedures complied with local

law. Rather, it is an action brought in federal court seeking redress against state officials

acting under the color of state law who, in so doing, allegedly deprived the plaintiff of

rights guaranteed by the United States Constitution and laws passed pursuant thereto.

Specifically, 42 U.S.C. § 1983 reads as follows:

                                            - 10 -
                      Every person who, under color of any statute,
              ordinance, regulation, custom, or usage, of any State or
              Territory or the District of Columbia, subjects, or causes to be
              subjected, any citizen of the United States or other person
              within the jurisdiction thereof to the deprivation of any rights,
              privileges, or immunities secured by the Constitution and
              laws, shall be liable to the party injured in an action at law,
              suit in equity, or other proper proceeding for redress, except
              that in any action brought against a judicial officer for an act
              or omission taken in such officer’s judicial capacity,
              injunctive relief shall not be granted unless a declaratory
              decree was violated or declaratory relief was unavailable. For
              the purposes of this section, any Act of Congress applicable
              exclusively to the District of Columbia shall be considered to
              be a statute of the District of Columbia.

       In its memorandum and order granting defendants’ motion for summary judgment

and denying plaintiff’s motion for summary judgment, the district court first held that the

individual defendants were entitled to qualified immunity. In so doing, the district court

cited Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) for the proposition that “[q]ualified

immunity generally shields from liability for civil damages ‘government officials

performing discretionary functions . . . . insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known’.” The district court then went on to hold, that based on the record before it, the

plaintiff had been afforded procedural due process in both his pre-termination and post-

termination hearings, and that the defendants, acting in their official capacity, were not

liable to the plaintiff under 42 U.S.C. § 1983.

       On appeal, plaintiff first challenges the district court’s holding that the individual


                                            - 11 -
defendants were entitled to qualified immunity. Further, as we understand it, the plaintiff

does not challenge the district court’s determination that plaintiff was afforded pre-

termination “due process.” However, in this regard, plaintiff does challenge, on a number

of different grounds, the district court’s finding that plaintiff’s post-termination hearings

satisfied the “due process” requirement of the Fourteenth Amendment.4

        We are in accord with the district court’s holding that the individual defendants

were entitled to qualified immunity for the reasons given by the district court in its

memorandum opinion and order. Also, we agree with the district court’s finding that the

post-termination hearings afforded plaintiff “due process,” and that the defendants, acting

in their official capacities, were not liable to the plaintiff under 42 U.S.C. § 1983. Indeed,

it would seem to us that plaintiff actually received an abundance of “due process,” from

start to finish.

        As stated, we are here concerned with plaintiff’s “due process” rights under the

Fourteenth Amendment, and we are not here concerned, for example, with an accused’s

rights in a criminal prosecution as set forth in the Sixth Amendment. The instant case

involves administrative hearings, and is not a criminal trial. So, the particular issue in the



        Counsel asserts that the state and local rules and regulations regarding termination
        4

of a permanent employee violated his right of due process because he was denied his right
to confront and cross-examine members of the Sandoval family and he was not afforded
his right to subpoena witnesses on his own behalf. Also, counsel sought, unsuccessfully,
to challenge the partiality of one member of the five person Appeals Board and
complained about the adequacy of the findings on the part of the Chief of Police, the
Mayor, the Appeals Board and the City Council.

                                            - 12 -
present case is whether the plaintiff’s due process rights in the post-termination

proceedings, not the pre-termination proceedings, met the “due process” test of the

Fourteenth Amendment. In other words, as we understand it, the parties agree that, as a

permanent employee of the Tooele Police Department, plaintiff could not be terminated

without first being afforded procedural “due process.” Under state law, plaintiff clearly

had a property right in his continued employment as a policeman for the City. (Plaintiff’s

claim in his complaint that the defendants violated his “liberty interest,” as well as his

property interest, was not pursued in the district court and is not an issue in this appeal.)

The dispute here is the “level” of due process that the Fourteenth Amendment affords

him.

       Plaintiff argues that under Calhoun v. Gaines, 982 F.2d 1470, 1476-7, (10th Cir.

1992), he was entitled to a “full blown adversarial post-termination hearing.” It is true

that in Calhoun we used that language. However, in Calhoun we first determined that

Calhoun, the plaintiff therein, had not received “due process” in the pre-termination

hearings and it was in that context that we said that the plaintiff was then entitled to a

“full blown” hearing in his post-termination proceedings. In the instant case the district

court held that plaintiff had received “due process” in his pre-termination proceedings, a

holding with which we are in complete accord, and which is not raised on appeal.

In this regard, in Benavidez v. City of Albuquerque, 101 F.3d 620-627 (10th Cir. 1996),

we spoke as follows:


                                             - 13 -
              When the pre-termination process offers little or no
              opportunity for the employee to present his side of the case,
              the procedures in the post-termination hearing become much
              more important. Such a post-termination hearing represents
              the only meaningful opportunity the employee has to
              challenge the employer’s action, and requiring a dismissed
              employee to prove in this context that he was terminated
              without just cause may increase the risk of an erroneous
              deprivation. It is often difficult to prove a negative, and
              where the pre-termination process has been minimal, the
              employee’s fate may depend entirely upon the post-
              termination hearing. Cf. Lavine, 424 U.S. at 585, 96 S.Ct. at
              1016 (recognizing that “[w]here the burden of proof lies on a
              given issue is, of course, rarely without consequence and
              frequently may be dispositive”); Speiser v. Randall, 357 U.S.
              513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958)
              (acknowledging that “where the burden of proof lies may be
              decisive of the outcome”).

       So, the question presented on this particular matter is whether plaintiff was given

“due process” in his post-termination hearing, wherein the district court held, inter alia,

under the described circumstances, that plaintiff did have notice of the hearing, and of his

right to respond, and, in fact, was given a chance to tell his side of the story (which he

did, through counsel, at the hearing before the Mayor). We agree with the district court’s

assessment of the matter.

       We think plaintiff’s reliance on McClure v. Independent Sch. Bd. No. 16, 228 F.3d

1205 (10th Cir. 2000) is misplaced. In that case we did state that a termination of

employment hearing includes the right to be represented by an attorney and the “right to

cross-examine adverse witnesses.” Id. at 1211. In that same opinion we also said that

“[w]hile not necessary in every case, procedural due process often requires confrontation

                                            - 14 -
and cross-examination of those whose word deprives them of a livelihood.” Id. We deem

the facts in the instant case, though similar in some respects, to be markedly different, in

other respects, from those in McClure.5 In this general connection, in Rosewitz v. Latting,

689 F.2d 175 (10th Cir. 1982) (abrogated on other grounds by American Mfrs. Mut. Ins.

Co. v. Sullivan, 526 U.S. 40 (1999)), we said that “[e]ssentially, procedural due process

requires notice and an opportunity to be heard in a meaningful time and manner” and that

“[d]ue process is flexible and calls for such procedural protections as the particular

situation demands.” See also West v. Grand County, 967 F.2d 362, 369 (10th Cir.

1992)(“Confrontation and cross-examination . . . are not rights individually applicable to

all hearings.”) (citing Wolff v. McDonnell, 418 U.S. 539, 567 (1974)).




       5
        In McClure, the court stated, “Unlike the present case, the defendant in
Rosewitz provided its employees with a five-step grievance procedure that offered several
opportunities to present a defense . . . . We pointed out that, as a result, the risk of
erroneous deprivation was not great.” McClure, 228 F.3d at 1212, n. 6. Similarly, in this
case plaintiff was offered several opportunities to present a defense.


                                            - 15 -
       The judgment is affirmed.6



                                          ENTERED FOR THE COURT,



                                          Robert H. McWilliams
                                          Senior Circuit Judge




       6
         Counsel for the defendants also argues in this court that plaintiff’s failure to
attend the hearing before the City Council waives his right to appeal the City Council’s
decision to uphold his termination, citing Pitts, supra. The district court in its order did
not consider “waiver,” as such, based on plaintiff’s failure to pursue to conclusion his
right to appeal to the City Council and in view of our disposition of this appeal on other
grounds, we decline to consider “waiver” as another ground for affirming the district
court’s resolution of this controversy. In this general connection, in Pitts we specifically
rejected any suggestion that Pitts “must exhaust his claim before he has a federal cause of
action,” as did the district court in the present case.

                                           - 16 -
