                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  September 18, 2008
                            FOR THE TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

    DONALD D. JOHNSON,

                Plaintiff-Appellant,
                                                          No. 08-8006
    v.                                          (D.C. No. 1:07-CV-00039-CAB)
                                                           (D. Wyo.)
    CITY OF CASPER,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.



         Donald D. Johnson appeals from the district court’s order granting

summary judgment in favor of the City of Casper on his federal claim under

42 U.S.C. § 1983 and his state-law claims for breach of contract and declaratory

judgment. We have jurisdiction under 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                    Background

      Mr. Johnson was hired by the City of Casper as an equipment mechanic on

July 1, 1981. Over the course of Mr. Johnson’s employment, the City

periodically updated its policies and issued new employment manuals. In 1999,

the City again proposed a new employment manual. In response to the Wyoming

Supreme Court’s decision in Brodie v. General Chemical Corporation, 934 P.2d

1263 (Wyo. 1997), the City offered its employees consideration in exchange for

agreeing to be bound by the terms of the new employment manual. The City

informed its employees that those who chose not to sign the acknowledgment

form would not receive a salary increase or one-time payment of $300 and would

remain subject to the current personnel manual dated February 1996. Mr.

Johnson chose not to sign the acknowledgment form.

      In the summer of 2000, the City authorized a one-percent cost of living

adjustment (COLA). Mr. Johnson did not receive this COLA and contacted

human resources to find out why. In a letter dated August 3, 2000, the City

explained that the new employment manual allowed the City to change the terms

and conditions of employment, including the salary and benefits. Because

Mr. Johnson had elected to remain subject to the old manual, his benefits, salary,

and other terms of employment would be frozen under the terms of the older

manual. Since that time, Mr. Johnson received yearly letters explaining that he




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would not be receiving COLAs, bonuses, or other benefit changes until he agreed

to be bound by the new set of policies.

      Although Mr. Johnson acknowledged in his deposition testimony that he

believed his rights were being violated as early as August 2000, he did not file the

underlying complaint until February 2007. Mr. Johnson’s complaint alleged the

City’s actions violated 42 U.S.C. § 1983 by depriving him of a protected property

interest without proper due process. Mr. Johnson alleged also that the City

breached its employment contract when he did not receive employment benefits,

in the form of COLAs and bonuses. Lastly, Mr. Johnson sought a declaration of

the rights of the parties, in his favor, as to his “claim for future COLA[s], wage

increases, vacation pay issues, contributions to retirement and interest thereon,

attorney’s fees and any other items appropriate for resolution by Declaratory

Judgment.” Aplt. App., Vol. 1 at 13.

      Mr. Johnson and the City both moved for summary judgment. The district

court granted the City’s motion and denied Mr. Johnson’s motion. On the § 1983

claim, the district court concluded that Mr. Johnson’s action was barred by the

applicable statute of limitations because he knew that his rights had been violated

as of August 3, 2000, but he failed to file his complaint on or before August 3,

2004. On the breach of contract claim, the district court concluded: (1) the oral

statement by the hiring supervisor that Mr. Johnson “‘would get COLAs’ [was] a

mere vague promise, and [was] too indefinite to rise to the level of an enforceable

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contract;” and (2) the statement in the employment manual that “‘City Council

may periodically authorize across-the-board salary adjustments in response to

inflation’” did not give rise to a contractual right to COLAs “because the

statement . . . was discretionary and couched in permissive, non-mandatory

terms.” Aplt. App., Vol. 3 at 485-86. On the declaratory judgment claim, the

district court reiterated that “[Mr. Johnson] has no claim to benefits pursuant to

oral statements made to him at the time of his hiring, or pursuant to any language

in the employee handbooks.” Id. at 487. The court did note, however, that

Mr. Johnson could “bring his salary, retirement, and other benefits to the level of

other City employees by signing the acknowledgment form provided by the City.”

Id. at 487.

                                     Discussion

      We review de novo the district court’s summary-judgment ruling. Simms v.

Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321,

1326 (10th Cir. 1999). Summary judgment is proper if there is no genuine issue

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

Id.

      Mr. Johnson argues (1) his § 1983 claim is not barred by the statute of

limitations because each time the City withheld a benefit it constituted a discrete

act of discrimination; (2) the City breached his employment contract because each

time the City adopted a salary adjustment, it had a duty to distribute that benefit

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across-the-board to all qualified City employees, and it failed to give him those

benefits; and (3) because he had an enforceable contract, he was entitled to a

declaration of rights in his favor.

      Based on our review of the briefs, the record, and the applicable legal

authority, we conclude that the district court correctly decided this case.

Accordingly, we AFFIRM the district court’s decision for substantially the same

reasons stated in its thorough and well-reasoned order dated December 18, 2007.

      Judge Hartz concurs in the result.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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