                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        August 29, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
KATHERINE TILLEY,

             Plaintiff-Appellant

v.                                                         No. 11-3384
                                               (D.C. No. 2:10-CV-02206-CM-GLR)
DIRK MAIER, FRED CHOLICK,                                   (D. Kan.)
DUANE NELLIS, and KIRK H.
SCHULZ, in their individual capacities,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before GORSUCH, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES,
Circuit Judge.




      Katherine Tilley appeals from the district court’s dismissal of her 42 U.S.C.

§ 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we AFFIRM.




*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                          I.

      Ms. Tilley made the following allegations in her second amended complaint.

She began working as an assistant professor in the Department of Grain Science &

Industry at Kansas State University (KSU) in 1996, and she was awarded tenure as an

associate professor in 2002. In 2004, she notified the head of her department that she

had developed a pulmonary condition resulting from her exposure to flour dust while

working at KSU. Over the next four years, she worked with representatives and

agents of defendants developing several plans to accommodate her condition.

      During the 2008-2009 academic year, Ms. Tilley worked from home,

conducting academic research and co-authoring an academic article. On December 5,

2008, defendant Dirk Maier sent Ms. Tilley a letter stating that her sick and vacation

leave would be applied to her absences. On January 21, 2009, Ms. Tilley’s physician

sent defendant Maier a letter regarding Ms. Tilley’s medical condition. On

February 29, defendant Maier sent a letter to Ms. Tilley’s physician requesting

clarification concerning Ms. Tilley’s medical condition. On March 30, defendant

Maier sent Ms. Tilley a letter advising her that she had exhausted her sick and

vacation leave and was now on unpaid status.

      On April 1, Ms. Tilley’s attorney sent a letter to the KSU attorney’s office

demanding that the university replenish Ms. Tilley’s sick and vacation leave. On

April 17, Ms. Tilley received a letter from defendants Maier and Fred Cholick, which

stated: “[i]t appears you have abandoned your position and have discontinued


                                         -2-
communications with your employer.” Aplt. App. at 69 (internal quotation marks

omitted). On April 20, defendant Maier sent Ms. Tilley a letter informing her that

her resignation had been processed.

      On September 23, Ms. Tilley sought to appeal her termination pursuant to

KSU’s policies regarding termination of tenured faculty members. On October 1, she

was informed by counsel for KSU that she was not eligible for any grievance

procedure for terminated professors because she had resigned.

      Based on these factual allegations, Ms. Tilley brought a claim for breach of

contract as well as constitutional claims for violations of substantive and procedural

due process. Defendants filed a motion to dismiss. The district court granted the

motion. The court noted that Ms. Tilley had conceded that she could not maintain a

breach-of-contract claim against defendants. On the remaining claims, the court

concluded that defendants were entitled to qualified immunity. Ms. Tilley appeals.

                                          II.

      Ms. Tilley’s sole contention on appeal is that the district court erred in

granting defendants’ motion to dismiss one of her procedural due process claims.1

We review de novo the district court’s decision to grant a motion to dismiss based on

qualified immunity. See Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011).


1
       Ms. Tilley brought two distinct due process claims—one for deprivation of a
property interest and one for deprivation of a liberty interest. She does not challenge
the district court’s dismissal of her liberty-interest claim. Further, she does not
challenge the district court’s dismissal of her substantive due process claim.


                                         -3-
In reviewing a motion to dismiss, “all well-pleaded factual allegations in the . . .

complaint are accepted as true and viewed in the light most favorable to the

nonmoving party.” Id. (internal quotation marks omitted). A court may “consider

documents referred to in the complaint if the documents are central to the plaintiff’s

claim and the parties do not dispute the documents’ authenticity.” Smith v. United

States, 561 F.3d 1090, 1098 (10th Cir. 2009). “[F]actual allegations that

contradict . . . a properly considered document are not well-pleaded facts that the

court must accept as true.” GFF Corp. v. Associated Wholesale Grocers, 130 F.3d

1381, 1385 (10th Cir. 1997).

      Defendants asserted in their motion to dismiss that they were entitled to

qualified immunity on Ms. Tilley’s procedural due process property-interest claim.2

To defeat the assertion of qualified immunity, a plaintiff must demonstrate that

(1) the facts alleged “make out a violation of a constitutional right”; and (2) “the

right at issue was ‘clearly established’ at the time of the . . . alleged misconduct.”

Pearson v. Callahan, 555 U.S. 223, 232 (2009).

       A procedural due process claim requires (1) “a protected property interest,”

and (2) deprivation of that interest without “an appropriate level of process.”

Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir. 2006). The district
2
       Our review is somewhat hampered by Ms. Tilley’s failure to comply with this
court’s rules and attach the relevant documents from the district court record. See
10th Cir. R. 10.3(D)(2), 30.1(A)(1). Although her appendix includes a copy of the
defendants’ two-page motion to dismiss, it does not include a copy of the
memorandum in support of the motion or her response in opposition to the motion.


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court assumed that Ms. Tilley had a cognizable property interest, but the court

concluded that “she ha[d] not alleged facts indicating that she was deprived of that

property interest without an appropriate level of process.” Aplt. App. at 86. We

agree.

         Ms. Tilley alleged that defendants Maier and Cholick classified her

employment as “abandoned” without any notice to her; defendants Nellis and Schulz

upheld that decision, thereby depriving her of a property interest without due process;

and all of the defendants violated her due process rights by denying her an

opportunity for a hearing.

         Due process requires notice and an opportunity to be heard. See Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). We consider defendants’ conduct

based on the allegations in the complaint and the letters referenced in Ms. Tilley’s

complaint. 3 We may consider these letters because they were referenced in the

complaint, are central to Ms. Tilley’s claims, and their authenticity has not been

disputed. See Smith, 561 F.3d at 1098. These properly considered letters contradict

Ms. Tilley’s assertion that she did not receive “any” notice that defendants were

going to consider her position “abandoned” and that she did not receive an



3
       These letters were attached to defendants’ memorandum in support of the
motion to dismiss. As noted, Ms. Tilley’s appendix is deficient and did not contain
this memorandum or the attached exhibits, but we may consider any document that is
part of the district court record even when it has not been provided in the appendix.
See Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906, 907-08 (10th Cir. 2009).


                                           -5-
opportunity to be heard. We therefore conclude that those allegations are not entitled

to an assumption of truth. See GFF Corp., 130 F.3d at 1385.

      On December 5, 2008, defendant Maier notified Ms. Tilley that the department

considered her to be absent from her work site without approval and was going to

apply her sick and annual leave towards her absences. On February 23, 2009,

defendant Maier requested clarification from Ms. Tilley’s physician about

Ms. Tilley’s health condition and whether she could perform her essential job

functions. On March 30, defendant Maier notified Ms. Tilley that she had exhausted

all of her leave. He also gave her the opportunity to respond by requesting that she

“[p]lease contact [him] at her earliest convenience to schedule a meeting . . .

regarding [her] intentions concerning [her] return to work.” R., Doc. 54-1 at Ex. C.

      On April 17, defendants Maier and Cholick sent Ms. Tilley a letter noting that

her physician had indicated that Ms. Tilley had withdrawn permission to

communicate with the university regarding her medical condition. The letter also

indicated that Ms. Tilley had “not responded to . . . recent phone and email messages

or [the] March 30 letter.” Id. at Ex. D. The letter concludes: “At this point in time,

it appears you have abandoned your position and have discontinued communications

with the University as your employer. Therefore, we are treating your actions as a

resignation and will prepare the paperwork accordingly.” Id. On April 20,

defendants sent Ms. Tilley a letter notifying her that her resignation had been

processed.


                                          -6-
        Ms. Tilley does not allege in her complaint that she ever directly called,

emailed, or contacted defendants during this time period. The sole communication

from Ms. Tilley during this time did not come from her directly and was not sent to

any of the named defendants—it is an April 1 letter from her attorney to Richard

Seaton in the KSU attorney’s office demanding that her sick and vacation leave

balances be replenished and threatening legal action if KSU did not comply.

Ms. Tilley does not allege in her complaint that she took any steps to communicate

with the university after she received the April 17 letter and before her resignation

was processed on April 20.

        Under these circumstances, Ms. Tilley has not alleged sufficient facts to show

that she did not receive adequate notice and an opportunity to be heard. The

December 2008, January 2009, and March 2009 letters put her on notice that the

university did not consider her to be actively working (even though she considered

herself to be working), that she had exhausted all of her leave, and that they needed

further clarification from her physician regarding her medical condition and whether

she could perform the essential functions of her job. The March letter gave her an

opportunity to be heard on these matters, specifically requesting that she contact

defendant Maier to set up a meeting to discuss her intentions regarding her return to

work.

        When she did not respond to any of these communications directly, she was

given explicit notice in the April 17 letter that her position was being deemed


                                           -7-
abandoned. She did not take the opportunity to rebut this assertion before her

resignation was processed on April 20. Ms. Tilley argues in her opening brief “[a]t

which point in time, between these two dates, could [she] have had ample time to

reply?” Aplt. Br. at 12. But Ms. Tilley did not allege in her complaint that she did

not have ample time to respond to the April 17 letter and therefore it cannot form the

basis for any alleged due process violation. And, in any event, due process does not

require a “delay between the notice and the opportunity to respond accorded to the

public employee.” Powell v. Mikulecky, 891 F.2d 1454, 1459 (10th Cir. 1989)

(internal quotation marks omitted).4

      Even if we were to consider defendants’ conduct to be constitutionally

deficient, they did not violate clearly established law. “When a clearly established

right depends on the application of a general principle of law to a particular set of

facts, its contours must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Cordova v. Aragon, 569 F.3d

1183, 1192 (10th Cir. 2009) (internal quotation marks omitted). In her opening brief,

Ms. Tilley argues that defendants violated clearly established law because they
4
       In Powell, a supervisor confronted an employee face-to-face about alleged
misconduct. The employee admitted to the conduct and the supervisor informed him
that he was going to be terminated. The employee alleged that he did not receive
notice and an opportunity to be heard. We concluded that the employee received oral
notice of the charge when he was confronted by his supervisor in the face-to-face
meeting and that the employee had the opportunity at that time to rebut the charge
against him. We noted that it was the employee who ended the conversation once he
had been informed he was going to be terminated. We therefore concluded that the
employee had chosen not to exercise his opportunity to be heard.


                                          -8-
“should have known that it was unlawful and contrary to [the] KSU University

Handbook, Appendix C, Academic Freedom and Tenure, not to provide notice and

opportunity to respond prior to terminating the employment of a tenured professor

and depriving her of her property interest without due process.” Aplt. Br. at 14.

       First, any alleged violations of the university’s policies cannot support a claim

that defendants violated clearly established law. See de Llano v. Berglund, 282 F.3d

1031, 1035 (8th Cir. 2002) (holding that “federal law, not state law or [university]

policy, determines what constitutes adequate procedural due process.”). Second, we

cannot agree that a reasonable official given the circumstances in this case would

think that his conduct violated Ms. Tilley’s due process rights. As the district court

explained in its dismissal order, “[Ms. Tilley] failed to identify any case law . . .

establishing what process is due before a government employer deems an employee

to have abandoned her position” and she also failed “to identify any case law

indicating that the process provided to her by defendants including the form of the

letters . . . was deficient.” Aplt. App. at 86.

       Accordingly, we AFFIRM the district court’s decision to grant defendants’

motion to dismiss on the basis of qualified immunity.


                                                  Entered for the Court


                                                  Wade Brorby
                                                  Senior Circuit Judge



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