                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       October 5, 2006
                             FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                         Clerk of Court

    TH EO D ORE M O N TG O ME RY ,

              Plaintiff-Appellant,
                                                           No. 05-7133
     v.                                              (D.C. No. 99-CV -374-P)
                                                           (E.D. Okla.)
    THE CITY O F ARD M OR E,

              Defendant-Appellee.



                              OR D ER AND JUDGM ENT *


Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.




          Plaintiff Theodore M ontgomery appeals from an order of the district court

granting defendant The City of A rdmore’s (the City) motion for sum mary

judgment on his claim for denial of pre-termination due process in connection

with the loss of his job as police officer. We have jurisdiction pursuant to

28 U.S.C. §1291 and 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
                                    Background

      The facts surrounding the termination of M r. M ontgomery’s employment

as a police officer for the City are set forth in detail in M ontgomery v. City of

Ardmore, 365 F.3d 926, 930-33 (10th Cir. 2004). W e restate them here briefly.

      In the spring of 1997, M r. M ontgomery claims that he found himself at

odds with his co-workers concerning a criminal investigation of the City’s police

chief. On June 26, 1997, the same day he learned that the district attorney was

accusing him of interfering with the investigation, he began suffering from

intense headaches and blurred vision. After being sent home by the interim police

chief as a result of his ailments, he sought treatment for stress and high blood

pressure.

      A few days later, the district attorney’s statements concerning

M r. M ontgomery’s alleged interference with the criminal investigation were

published in the local newspaper. Shortly thereafter, the Fraternal Order of Police

(FOP) published a response urging him to cooperate in the investigation. On July

1, 1997, still suffering from his ailments, he began an extended medical leave.

      In August 1997, M r. M ontgomery learned that he would not be paid while

absent from work because the City disputed his eligibility for long term disability

benefits. Thereafter, he received short term disability benefits through the police

pension system. Okla. Stat. Ann., tit. 11, § 50-116.1 (1994).




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      It was not until M ay 1998, that M r. M ontgomery first approached the police

department about returning to work, at w hich time the interim police chief told

him that he could not come back to work until he had a doctor’s release. On

August 24, 1998, he telephoned the former interim chief (now the deputy chief)

and asked about returning to work in September 1998, when he anticipated

receiving the necessary release. The deputy chief told him that the City would

not allow him to return to work and that he should call the new police chief.

During a call with the chief, he was told that his job had been eliminated and

“[he] w as not going to be able to return to work.” Aplt. A pp. at 91.

      On September 28, 1998, the C ity formally terminated M r. M ontgomery’s

employment (effective August 15, 1998), pursuant to Section 116.9 of its

Employee Handbook, which provides that “[a]n employee shall be removed from

[long term disability] leave, forfeit all privileges that go with such leave and have

employment terminated if . . . [t]he employee has been on [long term disability]

leave for more than 365 days.” Id. at 234.

               The District Court and Tenth Circuit Proceedings

      In M arch 1999, M r. M ontgomery filed a suit against the City, the FOP, and

the district attorney, alleging violations of his constitutional rights under

42 U.S.C. § 1983, conspiracy to violate his constitutional rights, and state law tort

claims for negligence, breach of contract, intentional infliction of emotional




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distress, and defamation. The district court granted defendants’ motions for

summary judgment, and he appealed to this court.

      In M ontgomery, 365 F.3d at 944, we affirmed summary judgment except as

to M r. M ontgomery’s pre-termination due process claim against the City, holding

that the August 24, 1998, telephone conversations with police officials did not

constitute a pre-termination hearing. As to possible damages on remand, we

explained that

      [g]enerally, damages for procedural due process violations may
      include damages arising out of the termination of employment if
      there is a causal connection between the termination and the failure
      to provide a hearing. However, if [the C ity] can establish that [M r.
      M ontgomery] would have been terminated even if a proper hearing
      had been given, [he] cannot receive damages stemming from the
      termination in an action for a procedural due process violation.

Id. at 937 (citations and quotation marks omitted). Noting that the record

suggested that the City would have terminated M r. M ontgomery even if it had

provided him with a pre-termination hearing, we nonetheless remanded the case

to the district court for further proceedings. Id.

      In ruling on the C ity’s motion for summary judgment, the district court

found that: (1) M r. M ontgomery began an extended medical leave on July 1,

1997; (2) as of August 14, 1998, (the day before his termination became

effective) he had not received a medical release to return to work; and (3) he had

been on medical leave for more than 365 days when his employment was

terminated. As to whether a pre-termination hearing would have changed the

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outcome, the district held that the “grounds for [his] termination were clearly set

forth” in the Employee Handbook, and that “[the City’s] termination of [his

employment] was justified and inevitable.” Id. at 318-19. The court granted the

City’s motion for summary judgment, and this appeal followed. 1

                                      Analysis

      W e review the district court’s grant of summary judgment de novo, viewing

the evidence and drawing the reasonable inferences therefrom in the light most

favorable to the nonmoving party. Stover v. M artinez, 382 F.3d 1064, 1070

(10th Cir. 2004). Summary judgment is proper if there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law. Id.

      M r. M ontgomery advances two arguments on appeal. First, he claims that

the City can terminate his employment only for just cause pursuant to the

Collective Bargaining Agreement (CBA) betw een the City and the FOP.

A lternatively, he argues that if the Employee Handbook controls, it only allows

the City to terminate his employment if he is on long term disability leave.

      The City, on the other hand, argues that the district court correctly found

that the Employee Handbook controls, and that it requires the termination of any

employee whose medical leave extends beyond 365 days. Thus, the City claims




1
       Although the district court denied compensatory damages, it awarded
M r. M ontgomery $1 in nominal damages for the procedural due process violation.

                                         -5-
that it met its burden of proving that M r. M ontgomery’s employment would have

been terminated even if he had been given a proper pre-termination hearing.

      W e acknowledge that certain conditions of M r. M ontgomery’s employment

are governed by the CBA. This is not the end of the inquiry, however. Section

4.1 of CBA provides that it is

      the prerogative of the City to operate and manage its affairs in all
      respects and in accordance with its responsibilities, and power or
      authority which the City has not officially abridged, delegated,
      granted or modified by [the CBA] are retained by the City, and
      remain exclusively, without limitation, within the rights of the City.

Aplt. App. at 249. Admittedly, Section 4.3(a) provides that the City has the right

to “hire, demote, suspend or discharge for just cause,” Id., but that is not the only

right retained by the City. Instead, Section 4.3(h) provides that the City has the

right to “establish, modify and enforce personnel policies and procedures adopted

by the City.” Id. And although Section 4.6 provides that the CBA shall

supercede the City’s personnel policies that conflict with its terms, there are no

conflicts here. In fact, as to sick leave (the only section of the CBA that arguably

applies), Section 12.1 states that “sick leave shall be accrued and used pursuant to

the terms of the [City’s] Personnel Rules.” Id. at 260. 2

      As to w hether the City’s personnel policy was properly enforced against

M r. M ontgomery, we agree with the district court’s result, but for a different



2
       The CBA’s section on sick leave does contain rules concerning donated
leave, which are irrelevant in this case.

                                          -6-
reason. W hile it is true that the City opposed his request for long term disability,

this does not mean that he was not deemed to be on long term disability leave at

the time his employment was terminated. Section 115.1 of the Employee

Handbook provides that

      [f]or the purposes of these rules, temporary disability shall be
      defined as any non-job related injury, illness, or other medically
      related situation which prevents an employee from working for a
      period of at least 2 weeks but not more than 180 calendar days. Any
      period of disability in excess of 180 days will be considered long
      term disability.

Id. at 233 (emphasis added). In turn, as noted, Section 116.9 provides that “[a]n

employee shall be removed from [long term disability] leave, forfeit all privileges

that go with such leave and have employment terminated if any of the following

occurs: [t]he employee has been on [long term disability] leave for more than 365

days.” Id. at 234 (emphasis added). Therefore, the City was required to

terminate his employment and no pre-termination hearing would have changed the

outcome.

      The judgment of the district court is AFFIRM ED.


                                                     Entered for the Court


                                                     Stephen H. Anderson
                                                     Circuit Judge




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