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

                                TENTH CIRCUIT                       April 23, 2015

                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
    MITCHELL FOX-RIVERA,


               Plaintiff-Appellant,


    v.                                                  No. 14-1303
                                                       (D. Colorado)
                                               (D.C. No. 1:14-CV-00737-RBJ)

    COLORADO DEPARTMENT OF
    PUBLIC HEALTH &
    ENVIRONMENT, LABORATORY
    SERVICES DIVISION; DAVID
    BUTCHER; CYNTHIA SILVA
    GURBACH,
               Defendants-Appellees.



                           ORDER AND JUDGMENT *



Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.



         This appeal arises from a dismissal for failure to state a valid claim.

The plaintiff, Mr. Mitchell Fox-Rivera, worked at a government laboratory.

*
      The Court has determined that oral argument would not materially
aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th
Cir. R. 34.1(G). Thus, we have decided the appeal based on the briefs. Our
order and judgment does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel.
After mistakes were made, laboratory supervisors allegedly blamed Mr.

Fox-Rivera and fired him. If the firing impugned Mr. Fox-Rivera’s

reputation, his right to due process would be implicated. See McDonald v.

Wise, 769 F.3d 1202, 1212 (10th Cir. 2014). In this case, we must decide:

Did the State impugn Mr. Fox-Rivera’s reputation when firing him for

failure to carry out his job duties? We conclude that the State did not

impugn Mr. Fox-Rivera’s reputation and affirm the dismissal.

I.    The Mistakes, the Firing, and the Suit

      Mr. Fox-Rivera’s laboratory was responsible for testing blood

samples from individuals suspected of drunk driving. Authorities learned

of mistakes in the testing process and fired Mr. Fox-Rivera. The press

covered these testing errors and quoted authorities who had pinned the

blame on Mr. Fox-Rivera. These press reports led Mr. Fox-Rivera to sue

under 42 U.S.C. § 1983, claiming a deprivation of due process. The district

court dismissed the suit, and Mr. Fox-Rivera appealed. On appeal, Mr.

Fox-Rivera argues that the allegations were sufficient to state a claim for a

liberty interest in his reputation.

II.   Claim Against the Laboratory

      The laboratory itself was one of the defendants. The district court

held that the laboratory was an arm of the state, entitled to dismissal based

on Eleventh Amendment immunity. Mr. Fox-Rivera has not challenged this

part of the ruling.

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III.   Claim Against the Two Individual Defendants

       Mr. Fox-Rivera also sued two individuals: Mr. David Butcher and

Ms. Cynthia Gurbach. The claims against these two individuals were based

on a denial of due process.

       To survive a motion to dismiss, Mr. Fox-Rivera had to allege

deprivation of a property interest or a liberty interest. Hill v. Ibarra, 954

F.2d 1516, 1524 (10th Cir. 1992). The district court dismissed the claims,

holding that the individual defendants did not deprive Mr. Fox-Rivera of

either right. He does not dispute the absence of a property interest, arguing

instead that the defendants deprived him of a protected liberty interest. We

disagree.

       We review the dismissal de novo, focusing on whether Mr. Fox-

Rivera’s complaint states a plausible claim for relief. McDonald v. Wise,

769 F.3d 1202, 1210 (10th Cir. 2014). To determine the plausibility of the

claim, we assume the truth of all well-pleaded allegations in the complaint.

Albers v. Bd. of Cnty. Comm’rs of Jefferson Cnty., Colo., 771 F.3d 697,

700 (10th Cir. 2014).

       Applying this standard, we may assume that Mr. Fox-Rivera had a

protected “liberty interest in his good name and reputation as they related

to his continued employment.” McDonald, 769 F.3d at 1212. With this

assumption, however, Mr. Fox-Rivera would still need to plead facts

indicating infringement of this liberty interest. To satisfy this pleading

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burden, he had to allege a statement impugning his good name, reputation,

honor, or integrity. Id.

      The district court determined that Mr. Fox-Rivera had failed to

satisfy this burden. In challenging this determination, Mr. Fox-Rivera

points to five of the defendants’ alleged statements:

      1.    “[A]n investigation had been conducted that found that Mr.
            Fox-Rivera was [sic] wasn’t putting enough blood into the
            device used to determine blood-alcohol content.”

      2.    “Mr. Fox-Rivera had failed to follow test protocols, opening
            the door for attorneys to challenge drunk-driving cases.”

      3.    “Mr. Fox-Rivera was the cause of and responsible for the
            flawed . . . blood-alcohol testing of drunk driver blood
            specimens.”

      4.    The department “had reanalyzed 1,300 of the 1,700 samples
            that it was retesting as a result of errors by Mr. Fox-River
            [sic], and identified 11 samples with ‘significant’ errors, all in
            the favor of defendants accused of drunk-driving.”

      5.    Ms. Gurbach stated in an email that Mr. Fox-Rivera had been
            terminated for “unsatisfactory performance.”

Appellant’s Opening Br. at 4 (citing Appellant’s App. at 6-7).

      These statements do not address Mr. Fox-Rivera’s good name,

reputation, honor, or integrity. At most, the State employees accused Mr.

Fox-Rivera of negligence, failure to follow protocols, unsatisfactory work,

or dereliction in performing his duties. These kinds of accusations would

not implicate a protected liberty interest. See Se. Kan. Cmty. Action

Program, Inc. v. Sec’y of Agric., 967 F.2d 1452, 1458 (10th Cir. 1992)


                                       4
(“[C]harges involving negligence and neglect of duties . . . are insufficient

to establish a liberty interest deprivation.”); Hicks v. City of Watonga, 942

F.2d 737, 746 (10th Cir. 1991) (stating that charges “of poor work habits

or failure to follow instructions . . . do not violate a liberty interest”);

Sullivan v. Stark, 808 F.2d 737, 739 (10th Cir. 1987) (“[C]omplaints

against [plaintiff] . . . which asserted that he was negligent or derelict in

performing [his] duties . . . do not implicate concerns of a constitutional

stature.”); Sipes v. United States, 744 F.2d 1418, 1422 (10th Cir. 1984)

(stating that the remarks referring to the plaintiff’s lack of reliability did

“not call into question [his] good name, reputation, honor, and integrity”).

Thus, the district court correctly concluded that Mr. Fox-Rivera had failed

to allege facts reflecting a deprivation of a liberty interest.

      Mr. Fox-Rivera questions one sentence in the district court’s opinion:

“[I]n order to infringe on an employee’s liberty interest, stigmatizing

statements must include ‘unfounded charges of dishonesty or immorality

that might seriously damage the employee’s standing or associations in the

community.’” Appellant’s App. at 119 (quoting Melton v. City of Okla.

City, 928 F.2d 920, 927 (10th Cir. 1991) (en banc)).

      According to Mr. Fox-Rivera, this statement was erroneous because a

statement may be stigmatizing even if it does not reflect unfounded

charges of dishonesty or immorality. But we need not decide whether the

district court’s statement went too far.

                                        5
      As noted above, we engage in de novo review. See p. 3, above.

Engaging in this review, we can affirm on any ground supported by the

record. Phelan v. Laramie Cnty. Cmty. Coll. Bd. of Trs., 235 F.3d 1243,

1246 (10th Cir. 2000).

      In Melton v. City of Oklahoma City, we stated that a pleading was

sufficient when the plaintiff alleged termination of employment based on

unfounded charges of dishonesty or immorality. 928 F.2d 920, 926-27

(10th Cir. 1991) (en banc). Citing Melton, we have stated that for a

constitutional claim based on an employee’s reputation, “the charges must

implicate ‘dishonesty or immorality.’” Hicks v. City of Watonga, 942 F.2d

737, 746 (10th Cir. 1991); see also Palmer v. City of Monticello, 31 F.3d

1499, 1503 (10th Cir. 1994) (“To support a claim for deprivation of a

liberty interest, the plaintiff must show that a public employer took ‘action

to terminate an employee based upon a public statement of unfounded

charges of dishonesty or immorality . . . .’”).

      Mr. Fox-Rivera argues that we softened this requirement in

McDonald v. Wise, where we held that a complaint sufficed when an

employee was fired for “serious misconduct” involving a complaint of

sexual harassment. 769 F.3d 1202, 1208, 1212 (10th Cir. 2014). In doing

so, we did not say whether we viewed the complaint as one involving

dishonesty or immorality.



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      As a result, Mr. Fox-Rivera argues that he could adequately plead a

liberty interest even if the defendants had not impugned his honesty or

immorality. For the sake of argument, we can assume that Mr. Fox-Rivera

is correct. But this is not the problem with Mr. Fox-Rivera’s complaint:

The problem is that we have repeatedly held that statements involving

unsatisfactory performance are not sufficiently stigmatizing for a protected

liberty interest. See pp. 4-5, above (citing cases). Thus, even if we were to

embrace Mr. Fox-Rivera’s reading of McDonald, the complaint would not

have sufficed. He still would have lacked a protected liberty interest.

IV.   Conclusion

      We affirm the dismissal.


                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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