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

                           FOR THE TENTH CIRCUIT                       October 31, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
DIANNA JOHNSON,

             Plaintiff - Appellant,

v.                                                        No. 12-4198
                                                  (D.C. No. 2:10-CV-01130-TS)
CITY OF MURRAY, a political                                 (D. Utah)
subdivision of the State of Utah; PETER
A. FONDACO, in his official and
individual capacity,

             Defendants - Appellees.


                            ORDER AND JUDGMENT*


Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.


      Dianna Johnson appeals the district court’s grant of summary judgment to the

City of Murray, Utah, and the City’s Police Chief Peter A. Fondaco, on claims

related to the termination of her employment with the City. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
   I.        BACKGROUND

          Johnson began working at the City’s animal shelter as an animal control

officer in 1998. The shelter operated under the direction of the City’s police

department, headed by Fondaco. In 2000, Cory Bowman was hired as the animal

control supervisor, managing Johnson and two others that comprised the shelter’s

staff. Throughout his eight-year tenure as supervisor, the employees periodically

complained to human resources about Bowman behaving boorishly, specifically

alleging employee intimidation and animal cruelty. Although the City was generally

responsive, the problems apparently did not abate.

          After an incident in 2008 about which Johnson filed a complaint, Fondaco

ordered an investigation into Bowman. The investigator learned of additional

allegations of verbal abuse of employees and the mistreatment of animals. As a

result of these allegations, Bowman was demoted and stripped of his supervisory

duties.

          But Johnson still had contact with Bowman every day, which caused her

distress. In February 2009, the City granted Johnson FMLA leave because

Bowman’s presence was causing her panic attacks and she could not “keep coping

with being around [him].” Aplt. App. at 235 (internal quotation marks omitted).

While on leave, Johnson requested that she be given a different shift so she would not

have contact with Bowman. The City granted this request by changing her shift to

begin later in the day, at noon. Johnson also requested an order requiring no contact


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between her and Bowman as an Americans with Disabilities Act (“ADA”)

accommodation, but Fondaco informed Johnson that he could not guarantee zero

contact because animal control consisted of only four people. After returning,

despite the new hours and infrequent contact, Johnson alleges that Bowman glared at

her when they did have contact, and turned papers over on her desk while she was out

of the office to intimidate her. She again requested and was granted FMLA leave.

      Shortly after returning from leave, Johnson filed a complaint with the Equal

Employment Opportunity Commission (“EEOC”) alleging sex and race

discrimination. Johnson met with Fondaco a few weeks later and alleges that he

informed her about a solicitation the City received from another county to take over

animal control. She alleges that Fondaco then told her that if she kept “digging

holes,” he “will replace the department,” apparently referring to her EEOC

complaint. Aplt. Br. at 25 (internal quotation marks omitted).

      Johnson again went on FMLA leave after obtaining a medical report stating

she suffered from depression, post-traumatic stress disorder, severe anxiety, panic

attacks causing insomnia, nightmares, and chest pain, among other problems. While

on leave, she informed the City that she would only return to work if she were

guaranteed no contact with Bowman. The City responded by offering her a night

shift that did not coincide with Bowman’s hours at all but she declined, instead

asking that Bowman be moved to the night shift. The department did not ask

Bowman to change shifts because it decided that such action would amount to a


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punitive measure against him, which the department concluded was unwarranted in

the absence of evidence that Bowman had continued acting improperly. Johnson

begrudgingly accepted the night shift and returned to work. She then filed a second

EEOC complaint alleging her move to the night shift was retaliation for seeking

accommodation for a disability in violation of the ADA.

      In February 2009, the Salt Lake Tribune published an article about Bowman’s

mistreatment of animals based on information Johnson provided to the reporter. The

public expressed outrage and Fondaco’s office fielded many complaints from

concerned citizens. A week after the article’s publication, Bowman resigned.

      Shortly thereafter, the City began looking at outsourcing animal control to a

third party. The City formed a review committee and hired an independent financial

consultant to review whether the bids it received made economic sense. By all

accounts, Fondaco was active in the formation of the review committee and the

evaluation of bids. At the same time, through her attorney, Johnson demanded

changes to her workload because the shelter was now down to only two employees.

She claimed she was having problems with being overworked and stressed. The

department ultimately granted her request by assigning police officers to do certain

animal control activities and easing some of Johnson’s duties.

      Meanwhile, after collecting the information it sought, the review committee

decided to recommend that the City outsource its animal control to a neighboring

city. The City’s mayor and Fondaco then submitted a memorandum to the City


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recommending approval of the outsourcing decision in order to save the City money

as well as renew the public’s faith in animal control. The City Council held a hearing

on the matter, at which Johnson and Fondaco both testified. The City Council

ultimately voted to approve the agreement to outsource animal control. The City’s

animal control department was thus eliminated and Johnson’s employment was

terminated as a consequence.

      Johnson brought suit in federal court against the Defendants alleging eleven

different claims, four of which are relevant to this appeal: (1) a First Amendment

violation brought under 42 U.S.C. § 1983; (2) an ADA discrimination and retaliation

claim; (3) a Utah Whistleblower Act violation; and (4) breach of contract. Following

discovery, the Defendants moved for summary judgment on all of Johnson’s claims,

which the district court granted.

      In its order, the district court found that Johnson’s First Amendment rights

were not infringed because the City’s interest in promoting efficient public services

outweighed Johnson’s First Amendment interests. The court also determined that,

alternatively, the evidence showed that the City would have outsourced the

department even in the absence of her disclosures to the press. With respect to the

ADA claim, the court found that Johnson failed to demonstrate she was disabled

under the meaning of the ADA because she was not substantially limited in

performing a broad range of jobs. As to the Utah whistleblower claim, the court

found that Johnson was unable to establish a causal relationship between her


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communication to the newspaper about the city’s alleged violations and the city’s

outsourcing decision. Finally, the court concluded that Johnson’s contract claim was

barred because she signed a clear disclaimer that no contractual relationship existed

between her and the City. Johnson now appeals.

   II.      DISCUSSION

         We review the district court’s grant of summary judgment de novo.

Tademy v. Union Pac. Corp., 614 F.3d 1132, 1138 (10th Cir. 2008). Summary

judgment is appropriate only 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(a).

We view the record in the light most favorable to the nonmoving party.

Morris v. City of Colo. Springs, 666 F.3d 654, 660 (10th Cir. 2012).

         A. First Amendment

         Johnson first alleges that the City retaliated against her by outsourcing its

animal control after she exercised her First Amendment right to speak freely on

matters of public concern when she spoke to the newspaper. “[T]he First

Amendment protects a public employee’s right, in certain circumstances, to speak as

a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410,

417 (2006). But public employees’ interest in commenting on matters of public

concern must be balanced with the employer’s interest “in promoting the efficiency

of the public services it performs through its employees.” Pickering v. Bd. of Educ.,

391 U.S. 563, 568 (1968).


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      To achieve this balance, a public employee’s First Amendment claim is subject

to a five factor test derived from the Supreme Court’s decisions in Garcetti and

Pickering. The Garcetti/Pickering test inquires as to whether (1) the speech was

made pursuant to the employee’s official duties; (2) the speech related to matters of

public concern; (3) the government’s interest in promoting efficiency outweighs the

employee’s interest in free speech; (4) the protected speech was a motivating factor

in the adverse employment decision; and (5) the employer would have reached the

same decision absent the protected speech. See Morris, 666 F.3d at 661.

      Johnson argues that the district court erred in its third-factor decision that her

speech caused substantial disruption to the City’s internal operations and was

therefore outweighed by the City’s interest in the efficiency of its public services.

Johnson contends that contrary to the district court’s findings, Bowman’s resignation

did not cause a disruption. Aplt. Br. at 47. But not only is this contention

unsupported by the record, it is directly undermined by her own allegations that after

Bowman’s departure, the shelter was severely understaffed—so much so that the City

had to divert resources by using police officers to respond to animal control issues.

And her statement that evidence showing the City devoted resources to respond to the

public outcry “does not show that it disrupted the shelter’s operations,” id., ignores

that it demonstrates a disruption to the department’s operations.

      And it is also clear on the record that the City would have reached the same

decisions even absent the subject communications. In contrast to the evidence


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provided by the City, Johnson has not provided any record evidence that her speech

failed to cause substantial disruptions to the City’s operations or otherwise lead to an

adverse employment action.1

       B. ADA

       Johnson next claims that the City failed to accommodate her known

disabilities in violation of the ADA. A plaintiff making an ADA discrimination

claim must establish that (1) she was disabled within the meaning of the ADA; (2)

she was qualified to perform the essential functions of the job; and (3) she suffered

an adverse employment action. Koessel v. Sublette Cnty. Sheriff’s Dep’t, 717 F.3d

736, 742 (10th Cir. 2013) (internal quotation marks omitted). To qualify as disabled,

the plaintiff must show that a physical or mental impairment “substantially limit[s]

major life activities.” Id.

       Johnson argues that the district court erred in finding that she was not limited

in any major life activities. But she identifies no major life activity that was

substantially impeded by her mental impairment beyond “thinking.” Aplt. Br. at 51.

Instead, she asserts that her impairment “cannot be realistically determined not to be

disabling” simply by virtue of the impairment itself, a circular and conclusory

rationale that is wholly unconnected to any record evidence. Id. Johnson has not
1
        Johnson did not argue a subordinate liability theory below or in her opening
brief, see Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), and therefore it is
waived on appeal. See FDIC v. Noel, 177 F.3d 911, 915-16 (10th Cir. 1999)
(applying waiver rule where defendant failed to raise issue both in the district court
and in his opening brief on appeal).


                                          -8-
provided evidence that she had a disability within the meaning of the ADA and is

therefore unable to establish a prima facie case for ADA discrimination.

      C. Utah Whistleblower Protection

      Johnson argues that the City unlawfully retaliated against her for

communicating suspected violations related to the animal shelter’s operations. The

Utah Protection of Public Employees Act prohibits employers from taking adverse

action against an employee who in good faith communicates a suspected violation of

law, rule, or regulation. UTAH CODE ANN. § 67-21-3(1)(a)(ii) (West 2013).

      Johnson contends that the district court erred when it found that she did not

establish a causal relationship between her communication to the newspaper about

suspected violations and the City’s decision to outsource animal control. She argues

the following evidence all support a causal connection: (1) the timing of the

acceptance of bids to outsource animal control; (2) an email the mayor’s chief of staff

sent to the City Council shortly after the article’s publication stating that Johnson

was a “disgruntled employee” whose account to the newspaper was “strictly hers and

is not accurate,” Aplt. Br. at 27 (internal quotation marks omitted); and (3) the “lack

of consistent and persuasive reasons” for outsourcing animal control, id. at 54.

      Even assuming bias on the part of Fondaco and the mayor’s office, the

problem for Johnson is that the decision to outsource animal control was ultimately

made by the City Council. And there is no evidence, or even an allegation, that

members of the City Council were biased against Johnson. Although Fondaco may


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have played a role in the recommendation for outsourcing, there is no evidence that

the City Council was unduly influenced by him. Nor is there sufficient evidence that

the City Council was otherwise motivated to outsource animal control because of

Johnson’s communication. While the decision may have been partially motivated by

public relations concerns caused by the article, the evidence suggests it was as much

an economic decision as anything else. Thus Johnson has not adequately established

that the decision to outsource animal control was made to retaliate against her for her

communication to the newspaper.

      D. Breach of Contract

      Lastly, Johnson asserts that the City was in breach of contract for allegedly

allowing her to be abused by a co-worker, moving her to the night shift, failing to

accommodate her disabilities, and outsourcing her job without providing her a job in

a different department. Although Johnson did not have an employment contract with

the City, it is true that “circumstances may exist where the government voluntarily

undertakes an additional duty beyond its normal obligation to the employee” creating

an implied contract. Cabaness v. Thomas, 232 P.3d 486, 502 (Utah 2010) (internal

quotation marks omitted). Such a contract may arise from policies in an employment

manual, as Johnson alleges here. See id. But “a clear and conspicuous disclaimer”

prevents manuals from being considered an implied contract. Id. (internal quotation

marks omitted).




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      Johnson argues that the district court improperly relied upon the disclaimer

contained in her employment manual because the manual she received allegedly did

not include the disclaimer. Moreover, she contends that the City’s job

announcements contained only a limited disclaimer which stated that no contract

existed between the City and its employees relative only to permanent employment,

salaries, and benefits. As Johnson identifies, the Utah Supreme Court has held that a

limited disclaimer disclaims the employer of liability only with respect to the items

listed in it. See id., 232 P.3d at 502-04. However, this utterly ignores that Johnson

signed a broad disclaimer on her application which stated that the application and

any other City documents were not employment contracts. The disclaimer also

declared that any statements to the contrary in City documents should not be relied

upon. Her contention that the employment handbook created a series of contractual

obligations is therefore meritless.

      The judgment of the district court is affirmed. The Defendants’ motion to

strike is denied as moot. Volume III of the Appendix shall remain under seal.


                                                  Entered for the Court


                                                  Timothy M. Tymkovich
                                                  Circuit Judge




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