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

                           FOR THE TENTH CIRCUIT                      December 5, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
NORMAN W. ROOKER,

             Plaintiff–Appellant,

v.                                                        No. 12-1046
                                                 (D.C. No. 1:11-CV-01057-LTB)
OURAY COUNTY, a county of the State                         (D. Colo.)
of Colorado, acting through THE
BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY
OF OURAY; A.D. YEOWELL, M.D., in
his official and individual capacity;
CONNIE HUNT, in her official capacity;
SHERRY PECK, in her official capacity,

             Defendants–Appellees.


                            ORDER AND JUDGMENT*


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.




      *
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Norman W. Rooker appeals from the district court’s order granting

Defendants-Appellees’ motions to dismiss his wrongful-termination suit. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                             I

      Ouray County, Colorado, employed Rooker as an emergency medical

technician (“EMT”) for Ouray County Emergency Medical Services (“OCEMS”). In

April 2010, Rooker initiated a quality audit of medical services that were provided

during the transportation of an infant to a hospital. After learning of the audit, Dr.

A.D. Yeowell, the medical director for OCEMS and Rooker’s supervisor, informed

Rooker that he could no longer work under Yeowell’s supervision, removed him

from the work schedule, and forced him to accelerate his previously scheduled

retirement date.

      In response, Rooker sued Ouray County (“County”), Yeowell, County

Administrator Connie Hunt, and County Human Resources Director Sherry Peck.

Relying on the County’s personnel manual and the Colorado Board of Medical

Examiners’ rules, Rooker complained that he was not afforded a hearing and could

not be terminated without cause. He advanced a federal due process claim and

various state law claims, including breach of contract and breach of the implied

covenant of good faith and fair dealing.1


      1
       Rooker also alleged that Yeowell, Hunt, and Peck conspired to violate his
due-process rights. He has since abandoned that claim.

                                            -2-
      The district court dismissed Rooker’s complaint, concluding that his due

process claim failed because he insufficiently alleged a property or liberty interest in

continued employment with the County. With no federal claims remaining, the

district court declined to exercise supplemental jurisdiction over the state law claims.

Rooker timely appealed.

                                           II

      We review de novo a district court’s dismissal for failure to state a claim under

Fed. R. Civ. P. 12(b)(6), accepting as true all well-pled factual allegations in the

complaint and viewing them in the light most favorable to the plaintiff. Smith v.

United States, 561 F.3d 1090, 1098 (10th Cir. 2009).

      To assess whether an individual was denied procedural due process, we

“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.” Riggins v. Goodman, 572 F.3d

1101, 1108 (10th Cir. 2009) (quotation omitted). Constructive discharge from

employment is actionable under a due process theory when “an employee possesses a

protectable property or liberty interest in his employment.” Hesse v. Town of

Jackson, Wyo., 541 F.3d 1240, 1245 (10th Cir. 2008) (quotation omitted).

                                            A

      Rooker first contends that he had a protectable property interest in his

employment with OCEMS. In order for a property interest in employment to be


                                           -3-
protectable, there must be “a legitimate expectation in continued employment.” Id.

(quotation omitted). “For example, an employee may possess a property interest in

public employment if she has tenure, a contract for a fixed term, an implied promise

of continued employment, or if state law allows dismissal only for cause or its

equivalent.” Darr v. Town of Telluride, Colo., 495 F.3d 1243, 1251 (10th Cir. 2007).

At-will employees lack a property interest in continued employment. Bishop v.

Wood, 426 U.S. 341, 345 n.8 (1976).

      Rooker argues that he possesses a property interest in his employment by

virtue of the County’s personnel manual, which he claims constitutes an employment

contract.2 But the manual specifically disclaims that its provisions create any

contractual relationship:

      Nothing herein is intended nor shall it be construed or deemed to create
      any contract between the County and any of its officers or employees,
      nor is it intended nor shall it be construed to create any property rights
      in employment or an expectation of continued employment, or in the
      continuation of any benefits of any County employee or officer.

And the very next section of the manual, entitled “At Will Employment,” recites the

County’s policy “that all employees who are not elected to their office by the voters,

nor have a written, individual employment contract with the County are employed at

the will of the County for an indefinite period.” Id.

      2
         Although the personnel manual is a document outside the pleadings, the
manual may be considered without converting the motions to dismiss into motions
for summary judgment given that it is referenced throughout the complaint, it is
central to Rooker’s due process claim, and there is no dispute as to its authenticity.
See Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).

                                           -4-
      Rooker attempts to avoid at-will status by contending that the manual’s

provisions regarding disciplinary actions require a finding of cause before

terminating an employee. He relies on provisions that permit disciplinary action “on

account of misconduct or unsatisfactory performance by the employee,” and that

mandate “an opportunity to be heard” first before the County Administrator and then

before the Board of County Commissioners “[i]n all disciplinary actions involving

termination of employment.”

      Rooker’s reliance on these provisions as creating an employment contract is

misplaced for two reasons. First, the Supreme Court has held that “‘[p]roperty’

cannot be defined by the procedures provided for its deprivation.” Cleveland Bd. Of

Educ. v. Loudermill, 470 U.S. 532, 541 (1985). Second, “[t]ermination procedures

set forth in an employee manual or handbook do not create an implied contract where

a clear disclaimer of any contractual rights appears.” Jaynes v. Centura Health Corp,

148 P.3d 241, 248 (Colo. App. 2006). The County’s manual clearly disclaims any

intent to create a contract of employment with its employees. Although such

disclaimers may be ineffective “if the manual contains mandatory termination

procedures or requires ‘just cause’ for termination,” Evenson v. Colo. Farm Bur.

Mut. Ins. Co., 879 P.2d 402, 409 (Colo. App. 1993) (quotation omitted), the County’s

manual does not. Specifically, the manual makes disciplinary action discretionary by

stating that such action “may be initiated on account of misconduct or unsatisfactory

performance.” (emphasis added). Further, as Rooker concedes, he “was never


                                          -5-
accused of misconduct or unsatisfactory performance.” Thus, the County’s discretion

to institute disciplinary action followed by mandatory hearings was never triggered.

      Rooker also contends that he has a property interest in continued employment

by virtue of a Colorado Board of Medical Examiners’ rule that requires an emergency

services medical director to notify the Colorado Department of Public Health and

Environment of “his or her termination of the supervision of a department-certified

EMT for reasons that may constitute good cause for disciplinary sanctions pursuant

to the State [emergency-medical-service] Rules.” 3 Colo. Code Regs. 713-6, Rule

500, § 3.2(g) (2009) (current version at 6 Colo. Code Regs. 1015-3, ch. 2, § 4.2.10

(2012).

      “A law creates a property interest in continued employment when it places

restrictions on the grounds under which an employee may be discharged.” Ellis v.

City of Lakewood, 789 P.2d 449, 452 (Colo. App. 1989) (citing Arnett v. Kennedy,

416 U.S. 134 (1974)). However, the regulation cited by Rooker does not restrict the

grounds on which he can be discharged; it merely requires notice to the Department

of Public Health and Environment if Yeowell stops supervising him under

circumstances that might warrant disciplinary action by the Department. Rooker has

not alleged any such circumstances.

      Finally, Rooker claims that he is a third-party beneficiary of a contract

between the County and Yeowell, and he thus had a reasonable expectation of

continued certification and supervision by Yeowell. But Rooker does not indicate


                                          -6-
how his purported third-party beneficiary status restricts the County’s ability to

terminate his employment. And to the extent he equates the loss of Yeowell’s

supervision to a loss of his EMT certification, he does not explain why he cannot

work under the supervision of a different employer.

                                           B

      Rooker next contends that he had a protectable liberty interest in his

employment with OCEMS. A liberty interest in employment concerns an employee’s

“good name and reputation as it relate[s] to his employment.” Darr, 495 F.3d at

1255. Therefore, an actionable claim arises if a government employer publishes false

statements that “impugn the employee’s good name, reputation, honor, or integrity”

either “in the course of terminating the employee” or under circumstances that would

“foreclose other employment opportunities.” Id.

      Rooker concedes that he has not alleged defamation or stigma. Nor has he

alleged any circumstances that might prevent him from obtaining work as a

paramedic through a different employer. Instead, he seeks to proceed under a theory

in which his mere termination constitutes a liberty-interest deprivation. Such a

theory was rejected long ago by the Supreme Court. See Bd. of Regents of State

Colls. v. Roth, 408 U.S. 564, 573-74 (1972).

                                           C

      We review for an abuse of discretion the district court’s refusal to exercise

jurisdiction over Rooker’s state law claims. Nielander v. Bd. of Cnty. Comm’rs,


                                          -7-
582 F.3d 1155, 1172 (10th Cir. 2009). Under 28 U.S.C. § 1367(c)(3), a district court

may decline to exercise supplemental jurisdiction if “the district court has dismissed

all claims over which it has original jurisdiction.” And “[w]hen all federal claims

have been dismissed, the court . . . usually should[] decline to exercise jurisdiction

over any remaining state claims.” Smith v. City of Enid ex rel. Enid City Comm’n,

149 F.3d 1151, 1156 (10th Cir. 1998). Rooker concedes that if his federal due

process claim is dismissed, then the district court properly exercised its discretion in

refusing to exercise supplemental jurisdiction.

                                           III

      The judgment of the district court is AFFIRMED.

                                                  Entered for the Court


                                                  Carlos F. Lucero
                                                  Circuit Judge




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