                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 10, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT




    MATTHEW SKOGEN,

                Plaintiff-Appellant,

    v.                                                   No. 10-3088
                                               (D.C. No. 2:08-CV-02657-DJW)
    CITY OF OVERLAND PARK,                                (D. Kan.)
    KANSAS,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and KELLY, Circuit Judges.



         Plaintiff Matthew Skogen was employed as a police officer with the City of

Overland Park for nineteen years. He was terminated by the Chief of Police as a

result of his conduct during an incident that occurred while he was off duty.

Skogen appealed his termination to the Civil Service Commission, which upheld



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
his termination following an evidentiary hearing. Skogen filed suit pursuant to

42 U.S.C. § 1983 claiming that he did not receive adequate post-termination due

process because the rules governing the Commission’s review of his termination

did not permit it to conduct a full de novo review. The district court entered

judgment for the City on cross motions for summary judgment, and Skogen now

appeals.

      We review the grant or denial of summary judgment de novo, applying the

same standard as the district court under Fed. R. Civ. P. 56. See Christian

Heritage Acad. v. Okla. Secondary Sch. Activities Ass’n, 483 F.3d 1025, 1030

(10th Cir. 2007). Under that standard, summary judgment is proper if there is no

genuine dispute as to any material fact and “the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(c). 1 When applying this standard, “we view

the evidence and draw reasonable inferences therefrom in the light most favorable

to the nonmoving party.” Skrzypczak v. Roman Catholic Diocese of Tulsa,

611 F.3d 1238, 1243 (10th Cir. 2010) (internal quotation marks omitted). The

standard does not alter when the parties file cross motions for summary judgment.

Each motion is treated separately and “the denial of one does not require the grant

of another.” Christian Heritage Acad., 483 F.3d at 1030 (internal quotation

1

      By amendment effective December 1, 2010, the summary judgment
standard previously enumerated in subsection (c) was moved to subsection (a),
without significant change. See Fed. R. Civ. P. 56 advisory committee note
(2010 Amendments).

                                         -2-
marks omitted). But “[w]here the facts are not in dispute and the parties only

disagree about whether the actions were constitutional, summary disposition is

appropriate.” Id.

      The district court determined, and the City does not dispute on appeal, that

Skogen could be terminated only for cause and he therefore had a property

interest in his continued employment with the police department. The only issue

on appeal is whether Skogen received all the process he was due.

      “The fundamental requirement of due process is the opportunity to be heard

at a meaningful time and in a meaningful manner.” Mathews v. Eldridge,

424 U.S. 319, 333 (1976) (internal quotation marks omitted). “Due process . . . is

a flexible concept that varies with the particular situation.” Zinermon v. Burch,

494 U.S. 113, 127 (1990).

      [I]dentification of the specific dictates of due process generally
      requires consideration of three distinct factors: First, the private
      interest that will be affected by the official action; second, the risk of
      an erroneous deprivation of such interest through the procedures
      used, and the probable value, if any, of additional or substitute
      procedural safeguards; and finally, the Government’s interest,
      including the function involved and the fiscal and administrative
      burdens that the additional or substitute procedural requirement
      would entail.

Mathews, 424 U.S. at 335.




                                          -3-
      Skogen complains that although he received adequate pre-termination

process, 2 he was deprived of post-termination due process in his appeal to the

Civil Service Commission. In particular, he challenges one of the rules that

governed the Commission’s review of the Chief’s decision to terminate him,

which provided that the Commission could sustain or alter, though not increase,

the disciplinary action, but it could not reverse or reduce the disciplinary action




2
        Before he can be terminated, a “tenured public employee is entitled to oral
or written notice of the charges against him, an explanation of the employers’
evidence, and an opportunity to present his side of the story.” Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 546 (1985). Skogen received substantial
pre-termination process.
        The police Department’s Internal Affairs detectives conducted an extensive
factual investigation during which it interviewed numerous witnesses, both
civilian and police, who were involved in the incident even tangentially, and they
interviewed Skogen twice. After preparing their investigative report, the
detectives met with the City’s attorney, Skogen’s immediate supervisor, his
Division Commander, and deputy chief Lt. Col. Cauley to review and discuss the
report. Based on their review, the supervisors determined that Skogen should be
terminated. They submitted their recommendation to the Chief, who then met
with Cauley and the other two deputy chiefs. After discussing the matter with
them, the Chief gave Cauley permission to proceed. Cauley then sent a four-page
letter to Skogen informing him that the Division Commander had recommended
his termination, enumerating the police department Standards of Conduct Skogen
had violated, explaining how he had violated each one, and informing him that a
meeting with the Chief had been scheduled at which he could present all his oral
and written explanations or defenses. During his meeting with the Chief, Skogen
told the Chief his side of the story and also gave the Chief a letter expressing his
remorse and relating his mitigating evidence. Following the meeting, the Chief
met again with the Internal Affairs detectives and reviewed the evidence again.
He decided to uphold the termination decision and wrote Skogen a letter to that
effect. Following his termination, Skogen appealed the Chief’s decision to the
Civil Service Commission.

                                         -4-
unless it found that “the action or decision was arbitrary or capricious or

undertaken without reasonable cause.” Aplt. App. at 63.

      The district court carefully weighed each of the Mathews factors to

determine whether Skogen was deprived of due process. It concluded that the

first factor weighed in favor of Skogen because he had a substantial interest in

retaining his employment, a conclusion that neither party disputes. The court

concluded that the second factor weighed in favor of the City. First, the

Commission conducted a full evidentiary hearing and found, on a de novo factual

review, that Skogen violated police department Standards of Conduct, which the

Commission concluded were sufficient to uphold the Chief’s decision. Second,

“the magnitude of the pre-termination process [Skogen] received minimized any

risk of the Civil Service Commission erroneously depriving [Skogen] of his

employment through its use of the deferential standard.” Id. at 105.

      Although Skogen argues on appeal that he was not complaining about the

pre-termination process he received and that it is irrelevant to his post-termination

due process claim, the district court properly considered both the pre-termination

and post-termination process Skogen received in determining whether he was

given all the process he was due. “[W]e must evaluate the constitutionality of

post-termination process in light of the pre-termination procedures it follows.”

Benavidez v. City of Albuquerque, 101 F.3d 620, 626 (10th Cir. 1996).




                                         -5-
      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. . . . In contrast, when the
      employee has had a meaningful opportunity to explain his position
      and challenge his dismissal in pre-termination proceedings, the
      importance of the procedures in the post-termination hearing is not as
      great. In this type of post-termination hearing, simply giving the
      employee “some opportunity” to present his side of the case “will
      provide a meaningful hedge against erroneous action.”

Id. (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 n.8 (1985)).

      The district court noted that “[h]ad the Police Department’s pre-termination

procedures been cursory, [Skogen] would have a stronger argument that the

Commission’s deferential standard of review increased the risk of . . . an

improper determination,” but Skogen had received “extensive” pre-termination

procedures, which minimized the risk that he was deprived of his employment

erroneously. Aplt. App. at 105-06. Finally, the district court concluded that it

was unlikely that a less deferential standard of review would have resulted in a

different ruling by the Commission, so the probable value of using a different

standard of review was minimal.

      Turning to the third Mathews factor, the district court determined that the

City had “a significant interest in preserving the integrity of its police department


                                          -6-
and maintaining public trust in its police department,” which would be furthered

by “insuring that its police officers comply with the Police Department’s Code of

Ethics.” Id. at 106. “This governmental interest is as significant, if not more

significant, than [Skogen’s] interest in his continued employment,” id., and

weighed in the City’s favor. On the other hand, the court concluded that the

additional burden to the City of altering the Commission’s standard of review

“would be minimal, in terms of both time and money,” id., which weighed in

Skogen’s favor.

      After balancing all the Mathews factors together, the district court

concluded that the scale ultimately tipped in the City’s favor, largely due to two

facts. First, Skogen was given extensive pre-termination process; and second,

“the Civil Service Commission made its own, independent factual findings which

were consistent with the police Department’s determination that [Skogen] had

engaged in misconduct that violated important Police Department Standards of

Conduct.” Id. at 107. The court concluded that “the Commission acted not as a

mere ‘rubber stamp’ of the Police Department’s actions but as a fair and impartial

tribunal,” and it was “highly unlikely” that the challenged standard of review

“resulted in an erroneous decision.” Id.

      Both parties take issue with some aspect of the district court’s application

of the Mathews balancing test. Skogen contends that the district court erred in

concluding that the Commission’s standard of review created little risk of an

                                           -7-
erroneous deprivation and that the probable value of using a different standard of

review was minimal. The City contends that the district court erred in concluding

that altering the standard of review would impose only a minimal burden on the

City. 3

          Based on our de novo review of the parties’ briefs, the record on appeal,

and the applicable law, we conclude that the district court struck the balance

correctly. The City provided Skogen all the process he was due when it

terminated his employment.

          The judgment of the district court is affirmed.


                                                       Entered for the Court



                                                       Paul J. Kelly, Jr.
                                                       Circuit Judge




3
      The City did not file a cross-appeal; it argues error as to this aspect of the
court’s decision only as additional support for its position that the district court
was correct in concluding that the ultimate balance of the factors weighed in the
City’s favor.

                                            -8-
