                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 6, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                            FOR THE TENTH CIRCUIT


    DEBRA K. NEY,

                Plaintiff-Appellant,
                                                         No. 07-3086
    v.                                            (D.C. No. 05-CV-4059-JAR)
                                                           (D. Kan.)
    CITY OF HOISINGTON, KANSAS;
    HOISINGTON POLICE
    DEPARTMENT; KENTON DOZE;
    ALLEN DINKEL,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and ANDERSON, Circuit Judges.



         Ms. Debra Ney appeals from a district court order that granted the

Defendants-Appellees’ motion for summary judgment in her employment-

termination case. We have jurisdiction under 28 U.S.C. § 1291, and 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                  B ACKGROUND

      Ms. Ney worked as a clerk for the City of Hoisington’s Police Department

and Municipal Court. In 1998, she reported to authorities that the chief of police

had child pornography on his computer. The City eventually terminated the chief

and made Mr. Kenton Doze acting chief.

      Ms. Ney claims that Mr. Doze retaliated against her for reporting the police

chief by reprimanding her and making her working conditions “extremely

hostile.” Aplt. App. at 126. In April 1999, Ms. Ney’s doctors “took [her] off of

work for seven months” because she “had an emotional breakdown.” Id. The

City wrote Ms. Ney a letter, suggesting that she complete the paperwork

necessary to qualify the leave under the Family and Medical Leave Act (FMLA),

29 U.S.C. § 2601-2654. She forwarded the letter to her attorney, who then told

the City that the FMLA did not apply to her leave:

      For your information, the [FMLA] does not apply in this case. The
      FMLA would require the City of Hoisington to allow Ms. Ney to take
      up to 12 weeks of unpaid leave if she didn’t have any earned sick
      leave and needed or wanted time off for one of the reasons allowed
      by the federal law. The FMLA has absolutely nothing to do with
      Ms. Ney’s situation and the employee has to request the time off
      through the Act, which Ms. Ney did not do and didn’t need to do.
      Ms. Ney is taking sick leave through her accumulated sick leave she
      earned as a job benefit from 16 years of service to the City of
      Hoisington. Ms. Ney chose to use her paid sick leave and accrued
      vacation and not take time off pursuant to the FMLA; therefore, the
      Act does not apply.




                                        -2-
Aplt. App. at 199 (brackets and ellipsis omitted). 1

      When Ms. Ney returned to work at the end of 1999, the keys to her building

had been changed, her file cabinet was gone, she was assigned “to work in a

closet,” and she was given an extraordinary amount of work. Id. at 127. Further,

Mr. Doze and the new city manager, Mr. Allen Dinkel, regularly “yelled to [her],

accused [her] of things and berated [her] for hours.” Id. Mr. Doze also changed

her work schedule, requiring her to work Fridays and certain evenings.

      In March 2003, Ms. Ney told Mr. Doze and Mr. Dinkel that her doctor had

advised her not to attend meetings with them unless her husband or doctor were

present. The advice from Ms. Ney’s doctor was intended for her “legal

protection” and “emotional support.” Id. at 51-52. Mr. Dinkel agreed, but on the

condition that the support person not speak during the meeting. During a meeting

in March, Ms. Ney’s husband was present. He refused, however, to abide by

Mr. Dinkel’s condition, interjecting himself into the conversation.

      On May 8, 2003, Ms. Ney refused to attend a meeting with Mr. Dinkel

because she could not contact her husband or doctor. Mr. Dinkel terminated her


1
       Contrary to the views expressed in the letter, FMLA leave is not dependent
upon the absence of earned leave. Specifically, “when an employee’s leave
qualifies both under the FMLA and under the employer’s paid leave policy[,] the
employer may either permit the employee to use his FMLA leave and paid sick
leave sequentially, or the employer may require that the employee use his FMLA
leave entitlement and his paid sick leave concurrently.” Strickland v. Water
Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1205 (11th Cir. 2001);
accord Slentz v. City of Republic, 448 F.3d 1008, 1010 (8th Cir. 2006).

                                          -3-
on May 12, 2003, when she again refused to attend a meeting. The city council

upheld the termination.

       Ms. Ney sued the City, the Police Department, Mr. Doze, and Mr. Dinkel

(collectively, the City). She alleged that her termination violated the FMLA’s

anti-retaliatory provision, the federal constitution’s equal-protection and

due-process clauses, and state whistleblowing law. She also alleged that she was

defamed by a city employee’s statement that she was “crazy.” Id. at 33. The

district court granted the defendants summary judgment on the federal claims and

declined to exercise supplemental jurisdiction on the state claims. Ms. Ney

appeals. 2

                                    D ISCUSSION

                              I. Standards of Review

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

applying the same legal standard used by the district court.” Darr v. Town of

Telluride, 495 F.3d 1243, 1250 (10th Cir. 2007). 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.” Fed. R. Civ. P. 56(c). In determining whether a


2
       Ms. Ney does not challenge the district court’s declination of supplemental
jurisdiction.

                                         -4-
genuine issue of material fact exists, we draw all reasonable inferences in favor of

the party opposing summary judgment. Curtis v. Okla. City Pub. Schs. Bd. of

Educ., 147 F.3d 1200, 1214 (10th Cir. 1998). 3

                               II. FMLA Retaliation

      Ms. Ney claims that she was fired in retaliation for taking seven months of

FMLA leave. The FMLA grants “an eligible employee . . . a total of 12

workweeks of leave during any 12-month period” if the employee is unable to

perform the functions of her position due to a serious health condition. 29 U.S.C.

§ 2612(a)(1)(D). The FMLA also prohibits employers from retaliating against

employees who exercise their rights under the statute. See 29 U.S.C.

§ 2615(a)(2).

      FMLA-retaliation claims are subject to the burden-shifting analysis

developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Metzler

v. Fed. Home Loan Bank, 464 F.3d 1164, 1170 (10th Cir. 2006).

      Under this analysis, the plaintiff bears the initial burden of
      establishing a prima facie case of retaliation. If the plaintiff does so,

3
       In her reply brief, Ms. Ney appears to challenge the district court’s decision
to disregard her summary-judgment affidavit statements that were not based on
personal knowledge or supported by other portions of the summary-judgment
record. “But we do not consider arguments raised for the first time on appeal in a
reply brief.” Hutton Contracting Co. v. City of Coffeyville, 487 F.3d 772, 788
(10th Cir. 2007). In any event, we note that the district court properly concluded
that summary-judgment affidavits must be based on personal knowledge and that
statements of mere belief must be disregarded. Argo v. Blue Cross & Blue Shield
of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006). We proceed on this
well-settled premise.

                                         -5-
      then the defendant must offer a legitimate, non-retaliatory reason for
      the employment action. The plaintiff then bears the ultimate burden
      of demonstrating that the defendant’s proffered reason is pretextual.

Id. (citations omitted).

                                A. Prima Facie Case

      To state a prima facie case of retaliation, Ms. Ney must show that (1) she

engaged in protected activity; (2) a reasonable employee would have found the

City’s action materially adverse; and (3) there is a causal connection between her

protected activity and the City’s adverse action. Id. at 1171. The district court

concluded that Ms. Ney’s prima facie case failed on the first element because she,

through her lawyer, rejected taking the time off as FMLA leave. On appeal,

Ms. Ney argues that the rejection is irrelevant, because the mere fact that she took

sick leave meant that she engaged in a protected activity. We disagree. The mere

use of sick leave does not implicate the FMLA; rather, the FMLA comes into play

when there is a serious health condition that prevents the employee from

performing her work. See 29 U.S.C. § 2612(a)(1)(D). Consequently, the

employee must provide “notice sufficient to make the employer aware that the

employee needs FMLA-qualifying leave.” 29 C.F.R. § 825.302(c); see also id.

§ 825.303(b). This notice triggers the employer’s right to require a doctor’s

certification confirming that the employee truly has a serious health condition.

See 29 U.S.C. § 2613(a); 29 C.F.R. § 825.305(a). Leave taken by an employee




                                         -6-
who fails to provide requested certification “is not FMLA leave.” 29 C.F.R.

§ 825.312(b).

      Here, Ms. Ney’s attorney told the City in no uncertain terms that Ms. Ney

did not want FMLA coverage for her leave. She was thus able to take leave

without being subjected to the City’s right to insist on a doctor certifying the

seriousness of her health condition. We are unaware of any authority that permits

an employee to bypass the FMLA’s notice and certification provisions.

Accordingly, we conclude that Ms. Ney did not engage in a protected activity

when she took sick leave and insisted that the FMLA not apply. 4

      Even if Ms. Ney’s leave was protected under the FMLA, her prima facie

case would still fail because there is no evidence of a causal connection between

her leave in 1999 and her termination in May 2003. This temporal span is far too

long to suggest any connection between the two events. See Meiners v. Univ. of

Kan., 359 F.3d 1222, 1231 (10th Cir. 2004) (noting that a three-month period

between protected activity and adverse action is insufficient, standing alone, to

show causation). Apparently aware of the lack of independent causal evidence,

she attempts to shorten the temporal span between protected activity and adverse


4
       Ms. Ney claims that she rejected FMLA coverage only because the City
was threatening to withhold pay if she took the time off. While this claim might
be actionable as an attempt to interfere with the exercise of Ms. Ney’s FMLA
rights, see 29 U.S.C. § 2615(a)(1), she did not assert an interference claim in the
pretrial order and thereby waived any such claim. Cortez v. Wal-Mart Stores,
Inc., 460 F.3d 1268, 1276-77 (10th Cir. 2005).

                                          -7-
action. She contends that the City’s adverse action is the harassment she

allegedly endured upon returning from leave in 1999. She also contends that the

protected activity is leave she took in January 2003. But neither the harassment

nor the 2003 leave were mentioned in the pretrial order. See Aplt. App. at 27-28,

30-33, 35-36. Claims omitted from the pretrial order are waived. Cortez,

460 F.3d at 1276-77.

                                       B. Pretext

       If we proceed even further to assume that Ms. Ney has made out a prima

facie case of retaliation, there is no triable issue of fact as to pretext, the final

step of the burden-shifting analysis. An employee “can show pretext by revealing

such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of credence.”

Mickelson v. New York Life Ins. Co., 460 F.3d 1304, 1315 (10th Cir. 2006)

(quotation omitted). “A pretext argument requires the court to examine the facts

as they appear to the person making the decision, to determine whether the

employer honestly believed those reasons and acted in good faith upon those

beliefs.” Berry v. T-Mobile USA, Inc., 490 F.3d 1211, 1220 (10th Cir. 2007)

(quotation omitted). Although we “must resolve all doubts in [the employee’s]

favor, mere conjecture that the employer’s explanation is pretext is insufficient to




                                            -8-
defeat summary judgment.” Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1225

(10th Cir. 2007) (quotation and alteration omitted).

         The City asserts that Ms. Ney was fired for insubordination in refusing to

meet with Mr. Dinkel. Ms. Ney argues that the City’s proffered reason is

pretextual because Mr. Dinkel had agreed to allow her to have a support person

present during meetings, and there was no support person available for a meeting

on May 8 or May 12. It is undisputed, however, that there was a support person

available on May 9, and Ms. Ney made no attempt to meet with Mr. Dinkel that

day. Further, Mr. Dinkel could have reasonably concluded that Ms. Ney no

longer had any right to insist on a support person’s attendance, given that in the

only meeting in which Ms. Ney brought a support person, that person refused to

abide by the condition under which he was allowed to be present. We conclude

that no rational factfinder could discredit the City’s proffered reason for

terminating Ms. Ney.

         Summary judgment was properly entered on Ms. Ney’s FMLA-retaliation

claim.

                                 III. Equal Protection

         The Fourteenth Amendment’s Equal Protection Clause provides that “[n]o

state shall . . . deny to any person within its jurisdiction the equal protection of

the laws.” U.S. Const. amend. XIV, § 1. “The Equal Protection Clause prohibits




                                           -9-
state and local governments from treating similarly situated persons differently.”

Rector v. City & County of Denver, 348 F.3d 935, 949 (10th Cir. 2003).

      Ms. Ney argues that she was treated differently than male employees, who

committed worse infractions than she did but without suffering any adverse

consequences. Specifically, she asserts that a police officer “was having sex in

the back seat of [a] patrol car” and that “[m]ale employees could freely curse all

they wanted to.” Aplt. Br. at 44-45. 5 Ms. Ney’s equal-protection claim fails for

two reasons.

      First, Ms. Ney is not similarly situated to the police officer who allegedly

had sex in his patrol car. No adverse action was taken against the officer because

he denied the incident and Mr. Doze could not, after an investigation, confirm

that it even occurred. Ms. Ney’s refusal to meet with her superiors, on the other

hand, was apparent. She is also not similarly situated to the cursing employees,

as her refusal to meet with her superiors constitutes far greater misconduct.

      Second, the McDonnell Douglas burden-shifting framework applies to

equal-protection claims in the employment context. See Burns v. Bd. of County

Comm’rs, 330 F.3d 1275, 1283 (10th Cir. 2003). As we concluded above




5
       Ms. Ney also asserts that a second police officer “violated citizen’s civil
rights on a regular bases [sic], slashed the tires of a police car and committed
serious violations of the law.” Aplt. Br. at 45. But that officer was, like
Ms. Ney, terminated for his misconduct.

                                         -10-
regarding Ms. Ney’s FMLA-retaliation claim, there is no triable issue of pretext

surrounding her termination.

      Summary judgment was properly entered against Ms. Ney on her

equal-protection claim.

                            IV. Procedural Due Process

      Ms. Ney argues that her procedural-due-process rights were violated

because she was not given a pre-termination hearing and “not allowed to present

witnesses or evidence” when the city council reviewed her termination. Aplt. Br.

at 48. “In determining whether an individual has been deprived of [the

Fourteenth Amendment] right to procedural due process, courts must engage in a

two-step inquiry: (1) did the individual possess a protected interest such that the

due process protections were applicable; and if so, then (2) was the individual

afforded an appropriate level of process.” Farthing v. City of Shawnee, 39 F.3d

1131, 1135 (10th Cir. 1994). We conclude that Ms. Ney’s claim fails at step one.

      “[U]nder Kansas law, public employment is presumptively at-will” and

does not qualify for procedural-due-process protections. Id. at 1136. Ms. Ney

asserts, however, that she had a property interest in her City employment because

a former city manager once said that she was a “permanent employee” and

because she was not required to sign an at-will agreement that other employees

signed. Aplt. App. at 98-99. While a protected-property interest can arise from

an implied or written agreement that the employee will not be terminated except

                                         -11-
for cause, see Farthing, 39 F.3d at 1135, no such agreement is present here.

Ms. Ney references no written agreement. And to establish an implied agreement,

she must show “[a] mutual intent to form a contract.” Panis v. Mission Hills

Bank, N.A., 60 F.3d 1486, 1492 (10th Cir. 1995). The former city manager’s

statement that Ms. Ney was a “permanent employee” means only that she had

“a steady job of some permanence, as distinguished from a temporary job or

temporary employment.” Johnson v. Nat’l Beef Packing Co., 551 P.2d 779, 782

(Kan. 1976); see also Wiggins v. Housing Auth. of Kan. City, 916 P.2d 718, 721

(Kan. Ct. App. 1996). The fact that Ms. Ney was not required to sign an at-will

agreement when other employees were, does not by itself show the City’s intent

to transform her at-will employment into employment terminable only for cause.

Much more is necessary to show an implied agreement. See Panis, 60 F.3d

at 1492-93 (listing various factors relevant to “implied in fact” agreements,

including “written or oral negotiations, the conduct of the parties from the

commencement of the employment relationship, the usages of the business, the

situation and objective of the parties giving rise to the relationship, the nature of

the employment, and any other circumstances surrounding the employment

relationship which would tend to explain or make clear the intention of the parties

at the time said employment commenced”). Even if the City’s failure to have her

sign an at-will agreement led her to believe that her employment was something




                                          -12-
more than at-will, “[a] unilateral expectation on the part of the employee does not

create an implied-in-fact contract for continued employment.” Id. at 1492.

      Summary judgement was properly entered on Ms. Ney’s procedural-due-

process claim.

                            V. Substantive Due Process

      “A public employee with a property interest in continued employment has a

substantive-due-process right not to be terminated for arbitrary or capricious

reasons.” Darr, 495 F.3d at 1257. Because Ms. Ney had no property interest in

her employment with the City, her claim fails. We also conclude that even if she

had a protected interest, no reasonable jury could find that her termination for

refusing to meet with her superiors was “arbitrary, irrational, or shocking to the

contemporary conscience.” Id. “The Due Process Clause of the Fourteenth

Amendment is not a guarantee against incorrect or ill-advised personnel

decisions.” Curtis, 147 F.3d at 1215 (quotation and citation omitted).




                                         -13-
      Accordingly, the district court did not err in granting summary judgment

against Ms. Ney on her substantive-due-process claim.

                                  C ONCLUSION

      The judgment of the district court is AFFIRMED.

                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge




                                       -14-
