                                                                   FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                              May 14, 2013
                                    PUBLISH               Elisabeth A. Shumaker
                                                              Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 KEVIN L. KOESSEL,

             Plaintiff-Appellant,
       v.                                            No. 11-8099
 SUBLETTE COUNTY SHERIFF’S
 DEPARTMENT; BOARD OF
 COUNTY COMMISSIONERS
 SUBLETTE COUNTY WYOMING;
 WAYNE M. BARDIN; WILLIAM W.
 CRAMER; JOHN P. LINN; JOEL E.
 BOUSMAN, in the individual and
 official capacities,

             Defendants-Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF WYOMING
                   (D.C. NO. 11-CV-00058-NDF)


Stephen H. Kline (Melinda S. McCorkle with him on the reply brief) Kline Law
Office, P.C., Cheyenne, Wyoming, for Appellant.

Richard Rideout, Law Offices of Richard Rideout, PC (with Gregory A. Phillips,
Wyoming Attorney General, John D. Rossetti, Deputy Attorney General, and
Thomas W. Rumpke, Senior Assistant Attorney General on the brief for Appellee
Wayne M. Bardin in his individual capacity), Cheyenne, Wyoming, for Appellees.


Before TYMKOVICH, EBEL, and O’BRIEN, Circuit Judges.


TYMKOVICH, Circuit Judge.
      Kevin Koessel was terminated from his position as a deputy sheriff in

Sublette County, Wyoming, due to concerns about the lingering effects of a stroke

he suffered. In response, Koessel brought a suit in district court against the

Sheriff and the County alleging they violated the Americans with Disabilities Act

(ADA), breached his employment contract, and violated his substantive and

procedural due process rights.

      The district court granted the Defendants’ motion for summary judgment,

finding there were no genuine issues of material fact for a jury.

      We agree with the district court that the Defendants’ are entitled to

summary judgment on all of Koessel’s claims. Accordingly, exercising

jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court’s judgment.

                                 I. Background

      Koessel joined the Sublette County Sheriff’s Office as a patrol officer in

April 2002. In December 2007, while still a patrol officer, Koessel suffered a

stroke. He was placed on administrative leave while he recovered. As part of his

treatment, he dropped his smoking habit and began physical therapy. In April

2008, Koessel returned to the Sheriff’s Office part time, in a temporary office job

in which he conducted vehicle registration checks and approved field reports.

After several months of these duties, in August 2008, Koessel’s doctor cleared

him for full-time work, 40-hours per week, but restricted him from working


                                         -2-
overtime. Returning full-time, Koessel continued the desk assignment, although

he was authorized to make routine traffic stops while on his daily commute.

      During this time, some officers in the Sheriff’s Office reported concerns

about Koessel’s behavior and performance to the Sheriff, Wayne Bardin. For

example, in one report, a captain overheard a situation where Koessel became

flustered while making a traffic stop because he could not remember a word. The

captain suggested to Sheriff Bardin that Koessel not be allowed to initiate traffic

stops, but only perform backup duties—a suggestion that Bardin followed. Other

officers reported Koessel would lose his temper while on the job. On at least one

occasion, Koessel left work early because of blood pressure problems.

      These concerns led Sheriff Bardin to place Koessel on administrative leave

in April 2009 and order him to undergo an independent medical examination,

which was conducted by Dr. Gerald Moress, a neurologist. Sheriff Bardin sent

Dr. Moress a letter explaining his concerns about Koessel, in particular Koessel’s

lapses of memory and blood pressure problems. After conducting an evaluation

of Koessel, Dr. Moress made the following finding: “Strictly from a neurological

standpoint he would be able to work, but there are potential problems to cognitive

functioning that may have resulted from the stroke and should be investigated.”

App. 125. Dr. Moress recommended Koessel be examined by a

neuropsychologist.




                                         -3-
      Koessel saw a psychologist, Dr. Michael Enright, who performed a

psychological fitness for duty evaluation. Though Koessel’s scores on a standard

psychological test were unchanged from when he first took the test several years

earlier (before the stroke), Dr. Enright found that Koessel’s symptoms of “mild to

moderate fatigue, episodes of lightheadedness and episodes of emotional

disinhibition (weeping)” could interfere with the performance of some of his

patrol officer duties. Id. at 130–31. Dr. Enright recommended Koessel be placed

in a low-stress position, one in which he did not have regular contact with the

public.

      On May 20, 2009, Koessel returned to work from administrative leave—

this time as an assistant to the Emergency Management Coordinator, who was

housed in the Sheriff’s Office. This was not intended to be a permanent position,

but a temporary one. On June 17, 2009, Sheriff Bardin informed Koessel that the

County Board of Commissioners had not approved additional funds for the

position, and again placed Koessel on administrative leave.

      On August 12, 2009, Koessel received a letter from Bardin, terminating his

employment. It stated in part:

      Sublette County Sheriff’s Office is in receipt of the report from Dr.
      Michael Enright, dated April 24, 2009, stating, in part, that you are
      not physically fit to perform the duties of a Sublette County Deputy
      Sheriff. After careful consideration the Sheriff’s department has
      determined that there are no available positions in the Sheriff’s
      Department for which you are medically cleared to perform. For


                                         -4-
      safety purposes and to prevent injury to you or to the public at large,
      this office has no alternative but to discharge you from duty.

App. 133. The letter also informed Koessel that he had five days to file a written

request for a hearing to dispute his termination. Koessel never filed a request,

and he was terminated.

      Over a year later, Koessel sued the Sheriff’s Office, Sheriff Bardin, the

Sublette County Board of Commissioners, and the County Commissioners

(“Defendants”). He alleged violations of the ADA, breach of contract, and

violations of 42 U.S.C. § 1983 involving rights under the Fifth and Fourteenth

Amendments (procedural and substantive due process).

      After discovery, the Defendants filed a motion for summary judgment. On

the ADA claim, the district court noted that a prima facie case required Koessel to

show (1) he was disabled within the meaning of the ADA, (2) he was able to

perform the essential functions of his job with or without reasonable

accommodation, and (3) he suffered discrimination by an employer because of his

disability. The district court found that Koessel’s claim faltered on the second

element, whether he could perform his job with or without reasonable

accommodation. The court concluded Koessel could not make a prima facie case

of an ADA violation because he put forward no evidence contradicting Dr.

Enright’s report—which evidence was necessary to establish that Koessel was

qualified to perform his job. The court also granted summary judgment on the


                                         -5-
breach of contract and due process claims, holding that the Defendants followed

appropriate procedures in terminating Koessel and made their decision in good

faith.

                                    II. Analysis

         Koessel argues the district court erred in granting the Defendants’ motion

for summary judgement, claiming fact disputes existed on all of his claims.

         We review the district court’s order granting summary judgment de novo.

Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165

F.3d 1321, 1326 (10th Cir. 1999). “Summary judgment is appropriate when there

is no genuine issue of material fact and the movant is entitled to judgment as a

matter of law.” McCarty v. Gilchrist, 646 F.3d 1281, 1284–85 (10th Cir. 2011).

“There is no genuine issue of material fact unless the evidence, construed in the

light most favorable to the non-moving party, is such that a reasonable jury could

return a verdict for the non-moving party.” Bones v. Honeywell Int’l, Inc., 366

F.3d 869, 875 (10th Cir. 2004).

         A. ADA Claim

         Koessel first contends the district court erred in dismissing his ADA claim,

maintaining the Defendants fired him on the basis of a perceived disability when

he was in fact not disabled.

         The ADA protects individuals with physical disabilities or mental

impairments that substantially limit major life activities, as well as individuals

                                          -6-
who are merely perceived to have such impairments. 42 U.S.C. § 12102(1)(C).

To establish a prima facie case of discrimination under the ADA, Koessel must

show (1) he is disabled (or perceived as disabled) as defined by the ADA, (2) he

is qualified to perform the essential functions of his job with or without

reasonable accommodation, and (3) he suffered discrimination as a result of his

disability. Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1086 (10th Cir.

2008).

         A person is perceived as disabled when an employer regards the employee

as suffering from a physical or mental impairment that substantially limits his or

her ability to work. Id. An individual may qualify as disabled under the

“regarded as” provision of the ADA in two ways:

         (1) a covered entity mistakenly believes that a person has a physical
         impairment that substantially limits one or more major life activities, or (2)
         a covered entity mistakenly believes that an actual, nonlimiting impairment
         substantially limits one or more major life activities. Sutton v. United Air
         Lines, Inc., 527 U.S. 471, 489, 119 S. Ct. 2139, 144 L. Ed. 2d (1999); see
         also 29 C.F.R. § 1630.2(l) (defining “regarded as having such an
         impairment”). In either event, our focus is on an employer’s subjective
         state of mind: did the employer mistakenly believe that the plaintiff was
         substantially limited in performing a major life activity? Sutton, 527 U.S.
         at 489, 119 S. Ct. 2139.

Id. (internal quotation marks omitted).

         If Koessel cannot show that there is a genuine issue of triable fact as to any

of the elements of the prima facie case, then the Defendants are entitled to

summary judgment. We agree with the district court that Koessel failed to


                                            -7-
demonstrate he could still perform the essential functions of the job with or

without reasonable accommodation, and thus cannot meet the second element.

We therefore need not address the first or third elements of his ADA claim.

        1. Essential Functions

        The district court based its summary judgment decision on Koessel’s

purported failure to establish that he is qualified to perform the essential

functions of the job with or without reasonable accommodation. According to the

district court, Koessel failed to present any evidence contradicting Dr. Enright’s

assessment that Koessel should not be placed in a position where he could be

exposed to extreme stress—a restriction that disqualified him from patrol duty.

        Our cases place the burden on the plaintiff to show his qualification for a

job, Hennagir v. Utah Dep’t of Corr., 587 F.3d 1255, 1262 (10th Cir. 2009),

which is a mixed question of law and fact, McKenzie v. Dovala, 242 F.3d 967,

975–76 (10th Cir. 2001). A job function is “essential” if it is fundamental to a

position and all employees in the position must perform it. Hennagir, 587 F.3d at

1262.

        According to the Defendants, Koessel’s impairments interfered with at least

three essential job functions: (1) preserving the peace at public gatherings,

neighborhood disputes and family quarrels; (2) conferring with prosecutors and

testifying in court; and (3) apprehending suspects. In support of their argument,

they point to the report prepared by Dr. Enright, which recommended Koessel be

                                          -8-
placed in a low-stress position that did not require frequent contact with the

public. In his report, Dr. Enright referred to the job description for a Sublette

County deputy and found that Koessel’s symptoms could interfere with the

required job functions.

      Koessel does not dispute that these are essential job functions, but

maintains that he was able to perform them. In support of this argument, he

points to several pieces of evidence: (1) his personal physician cleared him to

return to work full time in August 2008; (2) he performed 35 traffic stops without

incident after returning to work and before he was placed on administrative leave;

(3) he drove a patrol vehicle 40 miles each way on his commute without incident

between his return to work and his termination; (4) the neurologist, Dr. Moress,

found no physical reason Koessel could not perform his job; and (5) the

psychologist, Dr. Enright, said Koessel’s performance on standard psychological

tests was unchanged from his performance before his stroke.

      But even accepting this evidence in the light most favorable to Koessel, it

only shows he was physically fit for his job, not that he could cope with high-

stress situations. Koessel introduced no evidence disputing Dr. Enright’s findings

that he suffered lingering psychological deficits that would interfere with his

ability to perform his job. Indeed, concerns about lingering cognitive problems

were the reason that Dr. Moress, the neurologist, referred Koessel to a

psychologist. Thus, the fact that Dr. Moress did not find anything physically

                                          -9-
wrong with Koessel does not contradict Dr. Enright’s conclusion. A

psychologist’s report reaching the opposite conclusion to that of Dr. Enright

might have created a sufficiently debatable question to send to a jury. But

Koessel produced nothing to contradict Dr. Enright’s report. And that report

advised the County that Koessel be placed in a position that does “not require him

to confront members of the public in the usual day-to-day activities of a patrol

officer or direct supervisory positions as Sergeant.” App. 131.

      Koessel unsuccessfully tries to undermine the reliability of Dr. Enright’s

assessment. Koessel argues Dr. Enright’s conclusion was based solely on a letter

from Sheriff Bardin containing unsupported allegations. But Koessel admitted

during his deposition that he reported his symptoms to Dr. Enright. Koessel also

claims his scores on a standard psychological test did not change from the first

time he took the test (which was prior to his stroke), proof he contends that he

could still perform the essential functions of the job. Yet Koessel does not

explain or introduce evidence showing that the problems Dr. Enright focused

on—fatigue, lightheadedness, emotional disinhibition—would have been revealed

by the psychological test. Thus, there is no support for his argument that the test

results conflict with Dr. Enright’s conclusion.

      That Koessel’s examination results were not wholly negative does not mean

a jury question remains. Koessel relies on McKenzie, 242 F.3d at 975–76, where

we reversed a district court’s grant of summary judgment in part because the

                                        -10-
plaintiff’s employer had not ordered her to undergo a psychological examination.

There, we found that in the absence of an individualized assessment, there was a

question of fact regarding whether she could perform the essential functions of

her job. Id. at 975. But here, Sheriff Bardin ordered Koessel to undergo not one

but two individualized assessments. And the examinations came as a result of

observations by fellow officers concerning on-the-job dizziness, memory lapses,

and frustration. The medical examinations indicated Koessel could physically

perform his duties, but both doctors also concluded he suffered (or could suffer)

lingering cognitive and psychological problems. Dr. Enright, in particular,

concluded that these problems could interfere with several essential job functions

of a patrol officer and recommended Koessel not be placed in high-stress

situations or allowed significant public interaction.

      Finally, even though Koessel performed several essential duties after his

stroke without incident, this does not undermine the district court’s decision.

Employers may set standards for exceptional situations if the need to perform in

an emergency is a realistic component of a job. Wilkerson v. Shinseki, 606 F.3d

1256, 1264–65 (10th Cir. 2010). Sheriff’s deputies frequently are required to

perform their duties in emergencies and other tense, stressful situations. Yet

Koessel introduced no evidence that he encountered any such situations after his

stroke. Thus, his successful performance of his duties in routine traffic stops




                                         -11-
does not undermine Dr. Enright’s conclusion that he could have trouble

performing in high-stress situations.

      In short, Koessel has not provided any evidence casting Dr. Enright’s

assessment into doubt. Accordingly, the district court did not err by concluding

Koessel failed to make a prima facie case that he could perform the essential

functions of his job.

      2. Reasonable Accommodation

      While we agree with the district court that Koessel did not establish he

could perform the essential functions of a patrol officer, we must still consider

whether the County made an effort to reasonably accommodate him. Wilkerson,

606 F.3d at 1265 (“[B]efore an individual can be deemed not ‘otherwise

qualified’ the employer must make an effort to accommodate the employee’s

disability.”). The ADA requires at least two forms of accommodation, as relevant

here: (1) a modification of the particular job performed by the employee, or (2)

reassignment to another job that can be performed with or without the first type of

accommodation. Gonzagowski v. Widnall, 115 F.3d 744, 747 (10th Cir. 1997).

Moreover, as a precondition to suit, employees have the burden to request

accommodation unless the employer has “foreclosed the interactive process

through its policies or explicit actions . . . .” Davoll v. Webb, 194 F.3d 1116,

1133 (10th Cir. 1999); see also EEOC v. C.R. England, Inc., 644 F.3d 1028, 1049

(10th Cir. 2011) (“[B]efore an employer’s duty to provide reasonable

                                         -12-
accommodations—or even to participate in the ‘interactive process’—is triggered

under the ADA, the employee must make an adequate request, thereby putting the

employer on notice.”).

      Koessel did not request the first type of accommodation. He argues this is

because he could perform his duties without a modification. This does not excuse

his failure to request accommodation. It is not the employer’s responsibility to

anticipate the employee’s needs and affirmatively offer accommodation if the

employer is otherwise open to such requests. See id. And Koessel does not argue

the County foreclosed the interactive process by its policies or explicit actions.

      Koessel claims he did request reassignment after learning that he would not

be returning to his position as a patrol officer. Employers have a duty to reassign,

but only when it is reasonable under the circumstances. Smith v. Midland Brake,

Inc., 180 F.3d 1154, 1171 (10th Cir. 1999) (en banc). Typically, this means

employers are only required to reassign employees to existing vacant positions.

Id. at 1174–75. A position is vacant when a similarly situated, non-disabled

employee would be able to apply for it. Duvall v. Georgia-Pacific Consumer

Prods., L.P., 607 F.3d 1255, 1263 (10th Cir. 2010). And while employers need

not promote an employee when they reassign him, they are required to consider

only lateral transfers or, if none are available, demotions. Midland Brake, 180

F.3d at 1176–77. Koessel bears the burden of identifying a specific vacant




                                         -13-
position to which he could have reasonably been reassigned. Duvall, 607 F.3d at

1263.

        Koessel has identified no such position. He claims the County assigned

him to an emergency management position and then cut funding for it. But the

record reflects that this was only a temporary position, and the County lacked the

funds to make it permanent. Koessel provides no evidence that this position was

anything more than a temporary one subject to available funding. Cf. Hendricks-

Robinson v. Excel Corp., 154 F.3d 685, 697 (7th Cir. 1998) (employer has no duty

under ADA to convert temporary jobs “available to disabled employees who are

recuperating from temporary restrictions” into permanent jobs for permanently

restricted employees). Nor does he identify any other positions to which he could

have been reassigned.

        In sum, Koessel has failed to create a genuine issue of material fact on the

second element of a prima facie ADA case: he has not shown that he could

perform the essential elements of the job with or without reasonable

accommodation. Accordingly, the district court did not err in granting summary

judgment on the ADA claim.

        B. Breach of Contract

        Koessel also appeals the district court’s grant of summary judgment on the

breach of contract claim. Although Koessel had no written employment contract

with the Sheriff’s Office, Wyoming law provides that a sheriff’s deputy “shall not

                                          -14-
be discharged from employment, reduced in rank or suspended without pay except

for cause and after notice and opportunity for a hearing.” Wyo. Stat. Ann. § 18-

3-611(b) (2009). The district court found that this statute created an implied

contract, but that the County complied with the terms of the contract (which were

provided by statute) by having cause for Koessel’s termination and providing him

with notice and an opportunity for a hearing.

      The County disputes the district court’s conclusion that Wyoming law

created an implied contract; rather, the County contends that it removed Koessel

from at-will employment, but nevertheless gave him the right to notice and a

hearing. With or without an implied contract, § 18-3-611 governs the process of

termination: Koessel could be terminated only for cause and had a right to notice

and a hearing prior to termination.

      1. Cause for Termination

      The Wyoming Supreme Court has defined “cause” under § 18-3-611 as “a

cause or justification which bears a reasonable relationship to the deputy sheriff’s

ability and fitness to perform and discharge the duties of his or her position.”

Lucero v. Mathews, 901 P.2d 1115, 1123 (Wyo. 1995). Showing an employee

was terminated without cause is essentially the same as showing the employer

terminated him in bad faith. Sheaffer v. State ex rel. Univ. of Wyo., 202 P.3d

1030, 1043 (Wyo. 2009). The court looks to whether the employer gave “fair and




                                         -15-
honest reasons . . . that are not trivial, arbitrary or capricious, unrelated to

business needs or goals, or pretextual.” Id. (citation omitted).

      Koessel introduces no evidence the County or the Sheriff acted in bad faith.

Indeed, the evidence shows that Sheriff Bardin was concerned about Koessel’s

performance from at least the time the captain spoke with him; and this concern

underlay Bardin’s decision to send Koessel to the neurologist and psychologist.

Koessel repeats the argument he made on his ADA claim—that the results of his

examinations said he was physically fit to return to work and he did his job

without complaint for a year after his stroke. He claims the “real” reason he was

terminated was the County’s fear of liability arising from his operation of a

county vehicle.

      Even if this is true, it does not show the County or the Sheriff acted in bad

faith. Koessel does not explain why fear over his inability to operate a vehicle

was an arbitrary or illegitimate reason for terminating him. In context, the

County’s liability concerns are entirely consistent with the Sheriff’s concerns

about Koessel’s fitness for duty as a patrol officer—the County could incur

liability if Koessel’s known symptoms resulted in injury to himself or others. Nor

does Koessel show the County’s rationale was pretextual. The evidence shows

that the County, after a series of complaints from fellow officers, investigated

whether Koessel was, in fact, impaired. The results of that investigation—reports

from the two specialists who examined Koessel—supported the County’s stated

                                           -16-
reasons for his termination. Koessel has thus failed to demonstrate the County

lacked cause to terminate him.

      2. Adequate Notice

      Koessel argues the notice he received was inadequate because it did not

specify exactly how he was unfit for duty or from what disability he suffered,

depriving him of a meaningful opportunity to challenge his termination. The

County argues the Sheriff’s letter included a sufficient description of the grounds

for termination.

      Under § 18-3-611, a sheriff’s deputy must a be given notice and an

opportunity to be heard. The notice should be “specific” and give the deputy a

“real and meaningful opportunity to respond to every charge or allegation that is

being brought against him and which will be used as a cause for his termination.”

Lucero, 901 P.2d at 1121 (emphasis in original). The Wyoming Supreme Court

has equated the type of notice and hearing required under § 18-3-611 to be the

same type required by due process. See id. at 1120 (noting that the

“pretermination hearing opportunity, which necessarily includes notice and a

hearing, is not only a by-product of § 18-3-611, but is also a function of

constitutional law”).

      Sheriff Bardin’s letter informed Koessel of his pending termination and

stated the following: (1) Dr. Enright had concluded Koessel was not physically fit




                                         -17-
to perform the duties of his job; 1 (2) there were no positions in the Sheriff’s

Office Koessel could perform; and (3) Koessel was being terminated for safety

purposes and to prevent injury both to himself and to members of the public.

      This notice was adequate. The basis for Koessel’s dismissal was the

lingering effects of his stroke. The letter informed Koessel that the evidence

against him consisted of Dr. Enright’s report—which, Koessel stated at his

deposition, he had received, reviewed, and discussed with Sheriff Bardin. This

report explained Koessel’s symptoms and how they could interfere with his

duties. Had Koessel desired to dispute the termination decision, the letter

provided him with all he needed to know: He had to challenge Dr. Enright’s

report.

      Koessel objects to the notice on the grounds that it did not particularly

inform him the County was concerned about his ability to safely operate a

vehicle. That is not required. Wyoming law requires Koessel to be informed of

every charge or allegation that will be grounds for termination. There is only one

allegation here: that he was physically or mentally unfit for the job, and thus he

      1
         Sheriff Bardin writes in his letter to Koessel that he is in “receipt of the
report from Dr. Michael Enright . . . stating, in part, that you are not physically fit
to perform the duties of a Sublette County Deputy Sheriff.” App. 133. Though
Dr. Enright raised concerns about Koessel’s mental and emotional well-being,
Sheriff Bardin, by referring to Enright’s report, appears in his letter to be using
the term “physical” holistically to mean that Koessel’s symptoms interfere with
his overall ability to perform his duties. Thus, Bardin’s use of the term
“physical” does not conflict with the determinations by Koessel’s physician and
the neurologist that Koessel was physically able to do his job.

                                         -18-
was being terminated for safety purposes. The County need not have informed

Koessel of every duty that could be impaired due to his disability, and Koessel

cites no authority for such a proposition. Koessel knew enough to mount a

challenge to the grounds of his termination if he had chosen to do so.

      3. Right to a Hearing

      Sheriff Bardin’s letter also informed Koessel of his right to a hearing. It

repeated twice that he had to request one within five working days, and stated in

bold, underlined type that the request had to be in writing. A copy of the Sheriff

Department’s rules for disciplinary hearings, which explained the hearing process

in further detail, was also attached to the letter. Koessel never requested such a

hearing. In the absence of a request, the letter satisfied the County’s statutory

obligation to provide Koessel with a hearing.

      Koessel argues he did not need to request a hearing because the Sheriff’s

Office breached its implied contract with him, and thus he had no obligation to

comply with the terms of the contract. While we need not decide if there was an

implied contract here, even if there were, the Sheriff’s conduct here would not

constitute a breach, let alone a material breach, excusing Koessel’s obligation to

request a hearing if he wished to challenge his termination. Because, as we have

already concluded, the Sheriff’s Office had cause to terminate Koessel, it would

not have breached any implied agreement by beginning the termination process.




                                         -19-
      Koessel’s breach of contract claim fails because he cannot show he was

terminated without cause, received inadequate notice, or was not afforded an

opportunity for a hearing.

      C. Procedural Due Process

      Koessel next argues the district court erred in granting summary judgment

on his procedural due process claim under 42 U.S.C. § 1983.

      Koessel argues the process afforded him was constitutionally inadequate, 2

largely for the same reasons he asserts on his breach of contract claim. We assess

procedural due process claims in two steps. Riggins v. Goodman, 572 F.3d 1101,

1108 (10th Cir. 2009). First, we ask whether the plaintiff had a constitutionally

protected interest. Id. Then, we ask whether the process afforded was adequate

to protect that interest. Id.

      The parties do not dispute that Koessel had a protected property interest in

continued public employment under Wyo. Stat. § 18-3-611. They dispute whether

the process he received was adequate. The requirements of due process are

      2
          Koessel contends, in his complaint and in the summary of the argument
section of his opening brief, that his § 1983 claims are based on violations of the
Due Process Clauses of the Fifth and Fourteenth Amendments. He apparently
misconstrues the scope of the Fifth Amendment. The Due Process Clause of the
Fifth Amendment applies only to action by the federal government while the Due
Process Clause of the Fourteen Amendment applies to actions by state
governments. Here, Koessel alleges conduct only done by state authorities, and
thus there can be no Fifth Amendment claim. Moreover, because § 1983 imposes
liability only for actions taken under state law, even if there were a federal actor
involved there would be no Fifth Amendment claim under § 1983. See Smith v.
Kitchen, 156 F.3d 1025, 1028 (10th Cir. 1997).

                                        -20-
essentially the same as those of § 18-3-611: (1) oral or written notice of the

charges, (2) an explanation of the evidence, and (3) an opportunity to respond.

Montgomery v. City of Ardmore, 365 F.3d 926, 936 (10th Cir. 2004).

      The only different argument that surfaces in Koessel’s due process

claim—and not previously addressed in the breach of contract claim—is the

nature of the hearing offered to him. Koessel argues that the Sheriff’s Office did

not give him a pretermination hearing as required by Cleveland Board of

Education v. Loudermill, 470 U.S. 532 (1985). He contends that he had already

been terminated when he received the letter, thereby depriving him of adequate

notice and converting the hearing offered in the letter into a constitutionally

deficient post-termination hearing.

      Yet it is clear the letter did not effect Koessel’s termination. Our decision

in Riggins forecloses Koessel’s argument. There, we dismissed a similar

argument because the letter the plaintiff received referred to his “proposed

termination,” stated the termination would be effective later, and informed the

plaintiff he had a right to a hearing prior to a final decision. 572 F.3d at

1109–10. Similarly here, Sheriff Bardin’s letter referred to Koessel’s “impending

discharge,” indicated that immediate termination would occur only if Koessel

failed to request a hearing, and informed Koessel that he could contest the

decision. App. 133. The letter’s clear implication was that Koessel had not yet




                                         -21-
been terminated. Consequently, the letter provided sufficient notice of his right

to a hearing.

       Koessel’s skewed take on the letter is compounded by his misreading of

Loudermill, which, he insists, requires an informal pretermination hearing,

followed by a formal post-termination hearing. Koessel maintains that he was

offered the wrong pretermination hearing, a formal one. But Loudermill does not

stand for the proposition that a state cannot offer a formal hearing prior to

termination. Loudermill establishes a floor for pretermination hearings—notice

and an opportunity to respond—rather than a ceiling. See 470 U.S. at 546. Here,

the pretermination hearing contemplated in Sheriff Bardin’s letter, following the

established rules of the Sheriff’s Office, was well above that floor: it provides a

deputy with the opportunity to hear the evidence against him and to respond to it,

all within the framework of an adversarial proceeding.

      Finally, Koessel further misinterprets Loudermill by insisting the hearing

offered by the Sheriff’s Office cannot have been a pretermination hearing,

because then Wyoming law would offer no post-termination hearing. This is not

the case. Wyoming law provides for judicial review of agency decisions. See

Wyo. Stat. Ann. § 16-3-114(a) (“[A]ny person aggrieved or adversely affected in

fact by a final decision of an agency in a contested case . . . is entitled to judicial

review in the district court for the county in which the administrative action or

inaction was taken.”). To the extent the state provides more elaborate procedures

                                          -22-
prior to termination than are required under Loudermill, it need not duplicate

them after termination. See Benavidez v. City of Albuquerque, 101 F.3d 620, 626

(10th Cir. 1996) (“[W]e evaluate the constitutionality of post-termination process

in light of the pre-termination procedures it follows.”); Calhoun v. Gaines, 982

F.2d 1470, 1476 (10th Cir. 1992) (noting a “full-blown adversarial post-

termination hearing” is required “unless such was included as part of the

pretermination proceeding”); Powell v. Mikulecky, 891 F.2d 1454, 1458 (10th Cir.

1989) (“The idea of conducting two identical hearings runs counter to traditional

principles of adjudication.”).

      Here, the fact that an impartial state court could have reviewed Sheriff

Bardin’s termination decision—itself the product of an adversarial proceeding—to

see whether it was supported by “substantial evidence,” Wyo. Stat. Ann. § 16-3-

144(c)(i)(E), assures us that Wyoming law offers some sort of post-termination

process. Cf. McDaniels v. Flick, 59 F.3d 446, 461 (3d Cir. 1995) (finding

sufficient due process guarantees for college professor when college’s termination

decision could be appealed to state court). Whether, in light of the pretermination

process, this post-termination process is constitutionally sufficient is a question

we need not reach, as Koessel waived that issue by failing to request his hearing

with the Sheriff’s Office. See Sandoval v. City of Boulder, 388 F.3d 1312, 1329

(10th Cir. 2004) (citation omitted) (noting that due process claim for termination

was waived by failing to request hearing); see also Lee v. Regents of Univ. of

                                         -23-
Cal., 221 F. App’x. 711, 714 (10th Cir. 2007) (plaintiff “waived any challenge to

the fairness of [his employer’s] post-termination hearing procedures because he

never requested a post-termination hearing”).

      Accordingly, the district court did not err in dismissing the procedural due

process claim.

      D. Substantive Due Process

      Koessel’s final claim is that his termination violated substantive due

process.

      A Fourteenth Amendment substantive due process claim arises when a

plaintiff alleges the government deprived him of a fundamental right. Williams v.

Berney, 519 F.3d 1216, 1220 (10th Cir. 2008). Substantive due process protects

fundamental liberty interests and protects against the exercise of government

authority that “shocks the conscience.” Seegmiller v. LaVerkin City, 528 F.3d

762, 767 (10th Cir. 2008). While we have not determined whether public

employment is a fundamental liberty interest protected by substantive due

process, Potts v. Davis County, 551 F.3d 1188, 1193 n.1 (10th Cir. 2009), even if

it is, Koessel has not asserted a fundamental liberty interest argument. He argues

only that the Defendants’ conduct shocks the conscience.

      To show the Defendants’ conduct is conscience shocking, Koessel must

prove a government actor abused his or her authority or “employ[ed] it as an

instrument of oppression” in a manner that shocks the conscience. Williams, 519

                                        -24-
F.3d at 1220. The Supreme Court has stated there is “no calibrated yard stick”

for assessing whether conduct is conscience shocking, but that it depends on the

circumstances of each case. County of Sacramento v. Lewis, 523 U.S. 833, 847,

850 (1998). Substantive due process prohibits “only the most egregious official

conduct.” Seegmiller, 528 F.3d at 767. Even most intentionally inflicted injuries

caused by misuse of government authority will not meet this standard. Ward v.

Anderson, 494 F.3d 929, 937–38 (10th Cir. 2007); see also Muskrat v. Deer Creek

Pub. Sch., No.11-6194, 2013 WL 1730882, at * 20 (10th Cir. April 23, 2013)

(teacher conduct did not meet standard of “brutal and inhumane abuse of official

power” to make out substantive due process claim).

      Whether an action was an abuse of authority depends on several “non-

exhaustive factors,” such as: (1) the harm results from misconduct by a

government official; (2) the official has some authority over the victim; (3) the

official abuses that authority; (4) the misconduct exceeds run-of-the-mill

negligent conduct, and is intentional or reckless; and (5) the injury suffered is so

egregious or outrageous that it shocks the conscience. Williams, 519 F.3d at 1224

(discussing excessive force claim).

      Koessel claims his allegations meet this standard because (1) he was

terminated in violation of the ADA, (2) he was terminated without ever having

been the subject of a complaint or any discipline, (3) he did not violate any

Sheriff’s Department fitness policy, (4) he was not told the real reason for his

                                        -25-
termination, (5) no doctor found him incapable of driving, and (6) he regularly

drove his county vehicle without incident.

      Even if all of this were true—and some of it is contradicted by the record—

it does not demonstrate an abuse of government authority, let alone one sufficient

to shock the judicial conscience. Again, Koessel has not demonstrated that the

Sheriff’s Office’s reliance on Dr. Enright’s report was pretextual. And its

reliance, even if incorrect, provided the department with rational reasons for its

decision. Thus, there was no misconduct by County officials, the decision was at

worst negligent, and the employment injury suffered—loss of a job—was not so

egregious as to shock the judicial conscience.

      As a final note, our decision in Curtis v. Oklahoma City Public Schools

Board of Education, 147 F.3d 1200 (10th Cir. 1998), is instructive. In that case,

the school board dismissed an employee after a hearing even though the hearing

board received no evidence, did not discuss the specific grounds for the

employee’s termination, and did not state the reasons for its decision. Id. at 1215.

We found that, given the plaintiff’s failure to present evidence in his defense and

his failure to dispute the statements in his employer’s termination notice, the

superintendent’s summary recommendation to the school board provided ample

reason for his termination—and thus the employer did not abuse its authority, let

alone engage in conscience shocking conduct. Id. at 1215–16. Similarly here,




                                         -26-
Koessel did not even request a hearing, let alone dispute the allegations in his

termination notice or present any evidence in his own defense.

      In short, we see no basis for concluding that the County’s conduct in

terminating Koessel rose to the level of a substantive due process violation.

                                III. Conclusion

      For the foregoing reasons, the district court’s judgment is AFFIRMED.




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