                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             OCT 6 2003
                             FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk


    GERALD ARNOLD WIEDEMANN;
    DANIEL R. CHURCHILL; ROBERT
    D. LANE; JAMES RAY HANKINS,

                 Plaintiffs-Appellants,

    v.                                                   No. 02-6344
                                                   (D.C. No. 00-CV-2139-A)
    THE CITY OF OKLAHOMA CITY,                           (W.D. Okla.)
    a political subdivision of the State of
    Oklahoma,

                 Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before MURPHY and PORFILIO , Circuit Judges, and              BRORBY , Senior Circuit
Judge.



         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




*
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Plaintiffs appeal from the district court’s grant of summary judgment to

defendant in this civil rights suit brought under 42 U.S.C. § 1983 alleging

retaliatory and constructive discharge in violation of plaintiffs’ First Amendment

rights. We affirm.

      The parties are familiar with the facts and we need not repeat them in detail

here. Plaintiffs were all discharged (Mr. Hankins alleges that he was

constructively discharged) from their jobs as electrical inspectors for the

defendant City of Oklahoma City. Plaintiffs contended that they were discharged

in retaliation for speaking out on a matter of public concern, specifically, health

and safety matters related to their duties as electrical inspectors. Defendant

asserted that plaintiffs were discharged for falsifying time reports and misusing

work time. Messrs. Wiedemann, Churchill, and Lane grieved their discharges

under their union’s collective bargaining agreement and were ordered reinstated

by the arbitrator. Mr. Wiedemann also grieved other matters with success in a

separate arbitration proceeding. Mr. Hankins did not file a grievance, but joined

in this suit. The district court granted summary judgment to defendant on the

basis that plaintiffs failed to present evidence that they were discharged pursuant

to a custom, policy, or practice and, therefore, defendant, as a municipality, could


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not be held liable under § 1983.     See Monell v. Dep’t of Soc. Servs. of City of

New York , 436 U.S. 658, 694 (1978).

       Plaintiffs argue on appeal that the district court erred: (1) in refusing to

give preclusive effect to the arbitrators’ findings that defendant failed to advance

legitimate, non-discriminatory reasons for discharging plaintiffs; and (2) in

holding that plaintiffs failed to show that defendant had established a custom,

policy, or practice that led to their discharge.

       “We review a grant of summary judgment de novo, applying the same

standard as the district court under Fed. R. Civ. P. 56(c).”       Scarberry v.

ExxonMobil Oil Corp. , 328 F.3d 1255, 1256 (10th Cir. 2003). Summary

judgment is warranted “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.” Rule 56(c).

       Plaintiffs’ first argument is without merit. The Supreme Court has held

“that ‘in a § 1983 action, a federal court should not afford res judicata or

collateral-estoppel effect to an award in an arbitration proceeding brought

pursuant to the terms of a collective-bargaining agreement.’”         Ryan v. City of

Shawnee , 13 F.3d 345, 347 (10th Cir. 1993) (quoting           McDonald v. City of West

Branch , 466 U.S. 284, 292 (1984)). Since       McDonald , the Court no longer views


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“arbitration [as] inferior to the judicial process for resolving statutory claims.”

Gilmer v. Interstate/Johnson Lane Corp.     , 500 U.S. 20, 34 n.5 (1991).

Cf. McDonald , 466 U.S. at 291 (holding that “arbitration is an inadequate

substitute for judicial proceedings). The Court has reiterated, however, that the

conclusion that arbitration under a collective-bargaining agreement does not

preclude a subsequent statutory claim is supported by the “difference between

contractual rights under a collective-bargaining agreement and individual

statutory rights, the potential disparity in interests between a union and an

employee, and the limited authority and power of labor arbitrators.”        Gilmer ,

500 U.S. at 34; see also McDonald , 466 U.S. at 290-91.

       The Court has also decided since     McDonald that a collective bargaining

agreement may preclude a legal action, but only if the waiver of the employee’s

statutory rights is “clear and unmistakable.”     Wright v. Universal Maritime Serv.

Corp. , 525 U.S. 70, 80 (1998). Defendant presented evidence that the collective

bargaining agreement covering plaintiffs contains no such explicit waiver.

Aplee. Br. at 7 (citing Aplt. App. at 46, 48). Plaintiffs have offered no evidence

in opposition and therefore have not shown that the district court should have

given preclusive effect to the arbitrators’ findings in their favor in light of the

Supreme Court’s rulings in    McDonald , Gilmer , and Wright .




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      Plaintiffs’ second issue is without merit for the reasons already thoroughly

discussed by the district court in its September 20, 2002 order.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Wade Brorby
                                                    Senior Circuit Judge




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