                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         August 4, 2005

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 PAMELA BEUS,

          Plaintiff-Appellant,

 v.

 UINTA COUNTY BOARD OF COUNTY                                 No. 04-8013
 COMMISSIONERS; MICHAEL GREER, Uinta                    (D.C. No. 03-CV-118-B)
 County Attorney, in his individual and official               (D. Wyo.)
 capacity; LYNN FOX, Uinta County Clerk, in her
 individual and official capacity; TONI LARSON,
 Uinta County Attorney’s Office Employee, in her
 individual and official capacity; SANDY
 ADELMANN, Uinta County Attorney’s Office
 Employee, in her individual and official capacity,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR and HARTZ, Circuit Judges, and BRACK, ** District 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       This order and judgment is not binding precedent, except under the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.

       Honorable Robert C. Brack, United States District Judge for the District
      **

of New Mexico, sitting by designation.
      Pamela Beus sued her former employer, the Board of Commissioners for

Uinta County, Wyoming, and county employees and officials Michael Greer, Lynn

Fox, Toni Larson, and Sandy Adelmann, alleging a number of contract, tort, and

constitutional claims based on her termination from employment with Uinta

County. The district court granted summary judgment to defendants on all claims.

Ms. Beus appeals and we affirm.

      We review a grant of summary judgment de novo and apply the same legal

standard employed by the district court. 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 “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” F ED . R. C IV . P. 56(c). In applying this

standard, “we view the evidence and draw reasonable inferences therefrom in the

light most favorable to the nonmoving party.” Simms, 165 F.3d at 1326. If there

are no genuine issues of material fact, we assess whether the district court

correctly applied the substantive law. Id.

      Ms. Beus contends she had an employment contract with Uinta County

requiring that she be treated fairly and honestly, evaluated on her performance,

and be terminated only “for cause.” Ms. Beus worked in various departments of


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the County from March 1997 to January 2003, during which time she was subject

to a Personnel Policy Manual. In the summer of 2002, County Attorney Tom

Barnes approached Ms. Beus about working for him and she agreed to a transfer

to the County Attorney’s office. She knew the Personnel Manual included a

provision explaining she would be on probationary status upon her transfer, and

that this provision stated her employment would be “at-will.” At the time of the

transfer, Mr. Barnes had lost a primary race for the position and Ms. Beus knew

he would not remain County Attorney. The new County Attorney, Michael Greer,

terminated Ms. Beus when he took office on January 7, 2003. The central dispute

concerns whether Ms. Beus was an at-will employee at the time.

      Under Wyoming law, employment is presumed to be at-will unless an

express or implied contract states otherwise. 1 A policy manual can be construed

as an employment contract. Wilder v. Cody Country Chamber of Commerce, 868

P.2d 211, 217 (Wyo. 1994). If the language of a written contract is unambiguous,

the plain language of the contract determines the parties’ intent. Busch Dev., Inc.

v. City of Cheyenne, 645 P.2d 65, 71 (Wyo. 1982).


      1
        The general duties and powers of the county attorney of Uinta County
include employment of staff who serve at the attorney’s pleasure. See W YO .
S TAT . A NN . § 9-1-804(c) (“[E]ach district attorney may employ administrative and
clerical personnel necessary for the proper and efficient operation of his office.
Such personnel shall serve at the pleasure of the district attorney.”); id. § 18-3-
302(b) (applying duties and responsibilities applicable to district attorneys to
county attorneys in judicial districts without district attorneys).

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      The Personnel Manual here stated in relevant part:

      Section H. New Hire, Rehire, Nepotism

      3. Probationary Period. New Hires and Transferees: All employees will be
      considered probationary for a period of one-hundred and eighty (180)
      consecutive calendar days (6 months) after initial employment, rehiring or
      transfer from another department . . . . All probationary employees are at
      will employees and may be terminated at any time without cause. During
      the new hire probationary period, the employee’s performance will be
      reviewed at periodic intervals by their supervisor. Unsatisfactory
      performance may result in termination without cause.

      Vacation . . . is earned during the probationary period but cannot be taken
      until the employee has completed his probationary period.

      Probationary period. Status changes within a Department: A new
      probationary period will commence when an employee changes status from
      part time to full time or when promoted from one position to another.
      During this probationary period, the employee’s performance will be
      reviewed at periodic intervals by their supervisor. Unsatisfactory
      performance may result in loss of status change and the return to the prior
      position.

Aplt. App. at 248-49 (emphasis added). Ms. Beus contends she was not an at-will

employee under this provision because she was a regular full-time employee who

received benefits such as vacation days. The district court concluded that under

the Personnel Manual, it was possible for Ms. Beus to be both a regular full-time

employee and a probationary employee. She could take vacation days she had

previously accrued, for instance, but simply could not take vacation days earned

during her probationary period. Ms. Beus also asserts Section H(3) required that

she be evaluated according to her performance, and that she should have, at least,


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been permitted to return to her previous position. The district court disagreed

with her reading of this provision, concluding instead that the performance

evaluations and the possibility of a return to a prior position did not apply to her

because she was not a new hire and her transfer was between departments, not

within a department. Ms. Beus has presented no arguments that convince us a

contrary reading of these express terms of her employment contract is appropriate.

Consequently, her breach of contract claim fails.

      Ms. Beus also asserts the County and its agents extended certain promises

that she relied upon to her detriment. She maintains the Personnel Manual

provided she could only be terminated for cause and that outgoing County

Attorney Barnes assured her she would be evaluated based on her job

performance and, at a minimum, would be returned to her previous position. In

accepting the new position, she says she believed she would only be discharged

for cause and that she certainly would not have transferred to the new position

without the representation of continued employment.

      In Wyoming, the existence of “a conspicuous disclaimer that indicates at-

will employment defeats a promissory estoppel claim.” Trabing v. Kinko’s Inc.,

57 P.3d 1248, 1255 (Wyo. 2002). Such a disclaimer renders it unreasonable for

an employee to rely on any later agreement that purports to create a different

employment relationship. Id. The district court determined that Mr. Barnes’


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statements to Ms. Beus were not the type that could be reasonably relied upon.

First, at the time the statements were made, Ms. Beus and Mr. Barnes knew he

would not be in office in January 2003. Second, Mr. Barnes incorrectly

represented to her that he could obligate Mr. Greer to employ her or that she

could revert to her former position. Most importantly, Ms. Beus actually knew

she would become a probationary employee upon her transfer, and she

acknowledged she had read the Personnel Manual, which included the at-will

employment disclaimer in Section H(3). It was, therefore, unreasonable for her to

rely on Mr. Barnes’ statements. Given these circumstances, the district court

correctly determined that Ms. Beus’ claim failed under Wyoming law.

      Ms. Beus also appeals the dismissal of several state tort claims: 1) tortious

breach of the covenant of good faith and fair dealing; 2) tortious interference with

contractual relations; 3) tortious interference with prospective economic

advantage; and 4) defamation. As the basis of these claims, she contends Uinta

County and its agents owed her a duty based on a special relationship of trust.

She also claims that a former supervisor, Lynn Fox, and two co-workers in the

County Attorney’s office, Toni Larson and Sandy Adelmann, made false

statements to incoming County Attorney Greer to induce him to terminate her

employment. These three individuals allegedly told Mr. Greer she lacked legal

experience, was untrustworthy, and was engaged in an illicit sexual relationship


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with Mr. Barnes. We need not address the merits of these issues because we

conclude the Wyoming Governmental Claims Act (WGCA), W YO . S TAT . A NN . §§

1-39-101, et seq., renders defendants immune from tort claims.

      The WGCA grants immunity against tort claims to the State, all local

entities, and their officials and employees acting within the scope of their duties,

unless that immunity has been expressly waived. See W YO . S TAT . A NN . § 1-39-

104; Hoff v. City of Casper-Natrona County Health Dept., 33 P.3d 99, 105 (Wyo.

2001); Harbel v. Wintermute, 883 P.2d 359, 363 (Wyo. 1994). In countering the

immunity argument, Ms. Beus contends that none of defendants were acting

within the scope of their duties. See Jung-Leonczynska v. Steup, 782 P.2d 578,

582 (Wyo. 1989) (scope of duties is “normally a question for the trier of fact and

becomes one of law when only one reasonable inference can be drawn from the

evidence”).

      Pursuant to the WGCA, public employees act within the scope of their

duties if a governmental entity requests, requires, or authorizes them to perform

the duties, regardless of the time and place of performance. Id. § 1-39-103(a)(v);

Duncan v. Town of Jackson, 903 P.2d 548, 554 (Wyo. 1995). Ms. Beus claims

defendants’ actions in passing along false and malicious statements fell outside

the scope of their duties. Defendants counter that their statements were made in

the context of a prospective employer investigating and evaluating an employee


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by talking to her fellow employees. Mr. Greer, Ms. Fox, Ms. Larson, and Ms.

Adelmann were indeed discussing matters related to Mr. Greer’s staffing needs in

the County Attorney’s office. Although Ms. Beus may feel that the conversations

evidenced malice towards her, discussion of staffing concerns and personnel

evaluations are routine aspects of employment and squarely fall within the scope

of duties. See, e.g., Brockman v. Wyo. Dep’t of Family Servs., 342 F.3d 1159,

1169 (10th Cir. 2003) (defendant’s filing negative employment evaluations of

plaintiff were “routine actions of employee management and thus fall comfortably

within the scope of their duties”).

      Moreover, under Wyoming law “[a]n employer who discloses information

about a former employee’s job performance to a prospective employer . . . is

presumed to be acting in good faith.” W YO . S TAT . A NN . § 27-1-113. This is a

conditional privilege derived from the common law, and a plaintiff can defeat it

by presenting evidence of actual malice. See R ODNEY A. S MOLLA , 2 L AW OF

D EFAMATION § 8.53 (2005), § 8.53; Casteel v. News-Record, Inc., 875 P.2d 21,

23, 25 (Wyo. 1994) (“A conditional privilege is a qualified privilege and typically

protects the speaker or publisher unless actual malice and knowledge of falsity of

the statements is shown.”) (also citing New York Times v. Sullivan, 376 U.S. 254

(1964)); § 27-1-113 (presumption of good faith rebutted by a showing that

information disclosed was “knowingly false or deliberately misleading or was


                                         -8-
rendered with malicious purpose”). The privilege applies to a co-worker

evaluating an employee for a superior. See S MOLLA , § 8153. Even assuming that

Ms. Beus was defamed, she made only unsubstantiated and conclusory allegations

that the statements in question were made with knowledge of falsity and actual

malice. See Aplt. app. at 118 (Plaintiff’s Memorandum in Opposition to

Defendant’s Motion for Summary Judgment) (“The Defendants, Fox, Adelmann

and Larson, should have known that their statements concerning the Plaintiff were

false, made without reasonable grounds for their belief in their truth and without

reasonable investigation of the truth or falsity of these statements. The

Defendants published these statements maliciously with the knowledge of their

falsity or with reckless disregard for the truth with the intent of harming the

reputation of the Plaintiff and causing her employment to be terminated.”)

(emphasis added). As a result, she failed to defeat defendants’ privilege.

      Finally, Ms. Beus makes a 42 U.S.C. § 1983 claim that defendants deprived

her of property and liberty interests without due process. First, echoing her

breach of contract claim, she asserts she was not an at-will employee but instead

possessed a property interest in her employment and was entitled to procedural

and substantive due process before being deprived of her position. An employee

possesses a property interest in public employment only if she has tenure, a

contract for a fixed term, or if state law allows dismissal only for “cause” or its


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equivalent. See Bd. of Regents v. Roth, 408 U.S. 564, 576-77 (1972); see also

Bishop v. Wood, 426 U.S. 341, 345-46 & n.8 (1976); Greene v. Barrett, 174 F.3d

1136, 1140-41 (10th Cir. 1999). As an at-will employee, Ms. Beus did not have a

reasonable expectation of continued employment and thus no property interest in

her position that would entitle her to either procedural or substantive due process.

Moreover, a substantive due process claim requires assessing whether a

governmental action is arbitrary, without a rational basis, or shocks the

conscience. Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 528 (10th Cir.

1998); Butler v. Rio Rancho Publ. Schs. Bd. of Educ., 341 F.3d 1197, 1200-01

(10th Cir. 2003). As the district court concluded: “Defendant Greer’s action of

terminating an employee upon his first day in elected office to fill a position with

someone else of his choosing does not shock the [conscience] of this Court and is

not considered outrageous or arbitrary.” Aplt. App. at 45. We agree.

      Ms. Beus also claims her liberty interest was violated because she was

terminated and her reputation was damaged by the false representations of Ms.

Fox, Ms. Larson, and Ms. Adelmann. A public employee can assert a violation of

a liberty interest arising out of a discharge if she shows her dismissal resulted in

the publication of information that was false and stigmatizing. Asbill v. Hous.

Auth. of Choctaw Nat., 726 F.2d 1499, 1503 (10th Cir. 1984). But she must also

establish she was foreclosed from taking advantage of future employment


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opportunities as a result of the false publication. See Melton v. City of Okla. City,

928 F.2d 920, 927 & n.11 (10th Cir. 1991). As the district court determined, Ms.

Beus did not experience a tangible loss of employment opportunities, because she

was employed within three months. Moreover, Mr. Greer told her she could apply

to the County Attorney’s office if a position opened up in the future, and Ms. Fox

provided her with a positive letter of reference. Ms. Beus simply failed to

substantiate a violation of her liberty interest. 2

       We AFFIRM.

                                          ENTERED FOR THE COURT


                                          Stephanie K. Seymour
                                          Circuit Judge




       2
        Ms. Beus also appeals the denial of a motion to compel discovery related
to certain defendants and an adopted child. She contends this testimony is
relevant to the circumstances of her termination. A magistrate judge ruled that
the information sought was irrelevant to any cause of action, citing F ED . R. C IV .
P. 26, among other reasons. The district court affirmed. We review denial of a
motion to compel for abuse of discretion. See Motley v. Marathon Oil Co., 71
F.3d 1547, 1550 (10th Cir. 1995). Like the district court, we do not find Ms.
Beus’ alleged need for the information she seeks to be relevant to any cause of
action she advances.

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