                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 13 1999
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 ARTHUR F. HERRERA,

          Plaintiff-Appellant,

               v.                                      No. 98-2243
                                                  (D.C. No. CIV-97-756)
 CITY OF ALBUQUERQUE;                                   (D. N.M.)
 LAWRENCE RAEL, Chief
 Administrative Officer; MARTIN
 CHAVEZ, Mayor,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before ANDERSON, BRISCOE, Circuit Judges, and KIMBALL, District
Judge. 1


      Plaintiff Arthur Herrera appeals the district court’s grant of summary

judgment to defendant City of Albuquerque in this 42 U.S.C. § 1983 action.

Herrera alleges he did not receive adequate due process in the termination of his


      *
        This order and judgment is not binding precedent, except under the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.
      1
        Honorable Dale A. Kimball, District Judge, of the United States District
Court for the District of Utah, sitting by designation.
employment. He does not appeal the grant of summary judgment to defendants

Lawrence Rael and Martin Chavez. We affirm.

      In 1996, while Herrera was an employee of the City, coworkers reported

that he smelled of alcohol, slurred his speech, and appeared unsteady on his feet

while at work. Herrera refused to take a drug and/or alcohol test without

speaking to an attorney, but declined an offer to call his attorney or to be driven

to his attorney’s office. The City deemed Herrera to have refused the test. At a

pretermination hearing, the City advised Herrera of the specific charges against

him (i.e., suspicion of reporting to work and performing work while under the

influence of alcohol, and refusing to undergo substance abuse testing) and gave

Herrera an opportunity to respond to the charges. The City did not name the

coworkers who made the allegations. Herrera denied the charges. The hearing

officer recommended termination of his employment.

      Local 624 of the American Federation of State, County, and Municipal

Employees, AFL-CIO (the Union) and the City had previously entered into a

collective bargaining agreement establishing a grievance procedure for union

members. Herrera was a member of the Union and, at his request, the Union filed

a grievance with the City alleging his termination was without just cause. The

City upheld the termination and the Union did not pursue arbitration. Herrera

filed the present § 1983 action against the City and two city employees. The


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district court granted summary judgment to defendants, finding no due process

violation.

      We review the district court’s grant of summary judgment de novo.         Kidd v.

Taos Ski Valley, Inc. , 88 F.3d 848, 851 (10th Cir. 1996). Summary judgment is

proper when “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). We view the evidence and

all reasonable inferences derived therefrom in the light most favorable to the

nonmoving party.    Kidd , 88 F.3d at 851.

      Herrera contends the pretermination hearing violated his procedural due

process rights because (1) the City refused to name the witnesses who observed

Herrera in an apparently alcohol-induced state, and (2) the hearing officer was

allegedly biased and predisposed to recommend Herrera’s discharge. As a

tenured employee, Herrera was entitled to a pretermination hearing.       See

Cleveland Bd. of Educ. v. Loudermill    , 470 U.S. 532, 542 (1985). Because he

received a pretermination hearing, the issue is whether that hearing satisfied

procedural due process requirements. The purpose of the pretermination hearing

is to serve as “a determination of whether there are reasonable grounds to believe

that the charges against the employee are true and support the proposed action.”


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Id. at 545-46. The due process clause does not require an elaborate or formal

pretermination hearing, only that the employee be given notice of the charges and

an opportunity to respond.     Id. ; see also Gilbert v. Homar , 520 U.S. 924, 929

(1997) (affirming that pretermination process need only include “notice of the

charges, an explanation of the employer’s evidence, and an opportunity for the

employee to tell his side of the story”) (citing    Loudermill , 470 U.S. at 546).

        Herrera received an adequate pretermination hearing. He was present at the

hearing, was represented by counsel, received notice of the charges against him,

and was given an opportunity to respond to the charges. The City was not

required to give Herrera the names of the coworkers who made the allegations

against him. See Derstein v. Kansas , 915 F.2d 1410, 1413 (10th Cir. 1990)

(stating fact that employee may not have known about internal investigation in

advance and did not receive more facts or copy of transcript at pretermination

hearing was not significant when employee had been apprised of charges against

him).

        Herrera also claims the hearing officer at the pretermination hearing was

biased. Herrera has failed to provide support for this allegation. Further, due

process does not require an impartial hearing officer at the pretermination

hearing, particularly when Herrera had an adequate post-termination remedy

available. See McKinney v. Pate , 20 F.3d 1550, 1562 (11th Cir. 1994).


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       Herrera also contends procedural due process required that he receive a

post-termination hearing. Herrera did not request a post-termination hearing.

The Union collectively bargained to establish an arbitration procedure to resolve

all workplace grievances. Grievance procedures created by collective bargaining

agreements satisfy an employee’s entitlement to post-termination due process.

See Hennigh v. City of Shawnee , 155 F.3d 1249, 1256 (10th Cir. 1998). Herrera

is free to bring a duty of fair representation claim against the Union if the Union

refused his request to pursue his grievance against the City.       See id. at 1256 &

n.2. The City, however, is not responsible for the denial of a post-termination

hearing because such a hearing was not requested.

       Herrera next contends his substantive due process rights were violated. To

implicate substantive due process, Herrera must demonstrate the presence of a

liberty or property interest to which the protections of due process attach.      See

Curtis v. Oklahoma City Pub. Sch. Bd. of Educ.        , 147 F.3d 1200, 1215 (10th Cir.

1998). At present, the question of whether a tenured employee’s property interest

in continued employment is subject to substantive due process protections is

unsettled. See id. at n.17. Even if we assume Herrera had such rights in this

instance, substantive due process requires only that the termination of the interest

not be arbitrary, capricious, or without a rational basis.      Id. at 1215. The City

terminated Herrera for refusing a drug test and for appearing to be under the


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influence of alcohol while working. The City’s termination of Herrera was not

arbitrary, capricious, or without a rational basis. Herrera’s substantive due

process rights were not violated.

       Finally, Herrera asserts a breach of employment contract claim against the

City. Many of his arguments were not raised with the district court and we will

not consider them for the first time on appeal.     See Walker v. Mather , 959 F.2d

894, 896 (10th Cir. 1992). In his summary judgment response filed in district

court, Herrera asserted that his employment contract included the City’s Merit

System Ordinance which contained provisions for a post-termination hearing.

The Ordinance expressly stated its grievance procedures were not applicable to an

employee whose union collectively bargained to establish an arbitration procedure

for grievances. The City followed the procedure created by the collective

bargaining agreement and did not breach its employment contract with Herrera.

       AFFIRMED.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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