                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                          APR 30 1997
                     UNITED STATES COURT OF APPEALS

                            FOR THE TENTH CIRCUIT                    PATRICK FISHER
                                                                              Clerk


    J.R. WES PERRIN,

               Plaintiff-Appellant,

         v.                                             No. 96-1268
                                                    (D.C. No. 93-M-2541)
    VIRGINIA EGGER, as Town Manager                       (D. Colo.)
    of the Town of Telluride; TOWN OF
    TELLURIDE,

               Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, and BRISCOE, 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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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.
      This case arises from the district court’s grant of summary judgment in

favor of defendant 1 on plaintiff’s claims of breach of contract and violation of

due process resulting from deprivation of his liberty interest. The district court

held that the case would go forward on plaintiff’s claim for denial of a

termination hearing as a denial of procedural due process. Pursuant to Fed. R.

Civ. P. 54(b), the district court ordered that final judgment be entered on all

claims other than the procedural deprivation, so that plaintiff could pursue his

appeal with regard to his claims of constructive discharge, breach of contract, and

stigmatization and deprivation of liberty interest.

      Plaintiff was employed as a deputy marshall for the Town of Telluride,

Colorado when, on February 11, 1993, a local newspaper published an editorial

accusing plaintiff of misuse of his badge by harassing citizens. On the same day

the editorial ran in the paper, plaintiff was called to a meeting of the town

manager, the chief marshall, and plaintiff’s supervisor, where they discussed

allegations of inappropriate behavior. During the meeting, the town manager told

plaintiff that he had the option of resigning immediately or being terminated after

a hearing on the following day. If plaintiff chose to resign immediately, the offer

included severance pay, a promise that his unemployment benefits application



1
      Upon plaintiff’s motion, the district court dismissed plaintiff’s claims as to
defendant Virginia Egger.

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would go uncontested, and a promise that his personnel file would contain no

evidence of the current complaints as inducement for his immediate resignation.

Plaintiff submitted a one-sentence letter of resignation that same day. A few days

later, the newspaper published a story about plaintiff’s resignation, reporting that

the town manager refused to comment. An accompanying editorial questioned the

town manager’s actions by suggesting that she had precipitously forced plaintiff’s

resignation in response to rumors. No town official accepted the editorial’s

invitation to explain.

      Plaintiff brought this action, alleging breach of contract, violation of his

due process rights, stigmatization, and deprivation of his liberty interest. Upon

defendants’ motion for summary judgment, 2 the district court dismissed plaintiff’s

claims of breach of contract, stigmatization, and deprivation of his liberty

interest. Contrary to the defendants’ position, the district court found that

plaintiff’s resignation was not voluntary and that he was entitled to a non-public

hearing as provided in the town’s employment manual. Plaintiff’s claim for

denial of a termination hearing as a denial of due process survived the summary

judgment, and the district court held that the case would go forward on that claim.


2
       The record on appeal does not include the summary judgment motion,
response, briefs in support, or attachments. Failure to include these pleadings in
the record on a challenge to a district court’s grant or denial of summary
judgment makes it very difficult for this court to properly consider issues on
appeal (particularly allegations of failure to raise an issue in the district court).

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

apply the same standard as the district court. See Thomas v. Wichita Coca-Cola

Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992).

      [W]hen a movant claims that there is no genuine issue for trial
      because a material fact is undisputed, the nonmovant must do more
      than refer to allegations of counsel contained in a brief to withstand
      summary judgment. Rather, sufficient evidence (pertinent to the
      material issue) must be identified by reference to an affidavit, a
      deposition transcript or a specific exhibit incorporated therein.


Id.

      On appeal, defendant does not dispute the district court’s finding that,

pursuant to the framework set forth in Parker v. Board of Regents, 981 F.2d 1159,

1162 (10th Cir. 1992), plaintiff’s resignation was not voluntary. The Town of

Telluride’s employment manual provides as follows:

      Dismissal: Dismissal shall take place upon the formal written order
      of the supervisor with the approval of the Town Manager. The
      written order shall detail the nature and severity of the conduct or
      infraction, and any other factors relating to the dismissal. A written
      notice of intent to dismiss, or a brief statement of grounds, and
      notice of an opportunity for the employee to first be heard, shall be
      served on the employee at least two (2) working days prior to the
      effective date of dismissal. The hearing shall be conducted by the
      Town Manager and shall be closed to the public. The employee shall
      be afforded fundamental procedural due process rights, including the
      right to present evidence and to call and cross-examine witnesses.
      The Town Manager shall issue a written decision on the proposed
      dismissal prior to its effective date.




                                         -4-
Appellant’s App. at 70-71. The district court correctly found, and defendant does

not dispute, that plaintiff was deprived of this procedural due process provided by

the manual because his resignation was involuntary. The case will proceed in the

district court on the issue of damages related to that deprivation.

      In Colorado, an employee who is hired for an indefinite period is an “at

will employee” whose employment may be terminated without cause at any time.

See Orback v. Hewlett-Packard Co., 97 F.3d 429, 432 (10th Cir. 1996), petition

for cert. filed, 65 U.S.L.W. 3694 (U.S. Feb. 4, 1997) (No. 96-1565). This

presumption can be rebutted, however, under ordinary contract principles by

showing a contract arising from an employee handbook that alters the at-will

nature of the relationship, or under the theory of promissory estoppel. 3 See

Adams County Sch. Dist. No. 50 v. Dickey, 791 P.2d 688, 693 (Colo. 1990). As

the district court found, the town’s employment manual does not require any sort

of cause for termination. Further, the manual had a specific disclaimer which

notified employees that “[t]hese policies and procedures are not intended to serve

as an employment contract between the Town and any Town employee.”



3
      Because the district court dismissed plaintiff’s claim for breach of contract,
we can assume that plaintiff raised that theory in the summary judgment
proceedings. It is not apparent, however, that plaintiff presented the theory of
promissory estoppel before the district court. He does not mention such a theory
on appeal and, since we do not have the benefit of the summary judgment
pleadings and attachments, we will assume that plaintiff made no such argument.

                                          -5-
Appellant’s App. at 67. Where, as here, an employee manual does not require just

cause for termination or that the employer apply progressive discipline

procedures, 4 and the manual contains a clear disclaimer, the employee manual

neither constitutes a contract nor makes a promise altering the at-will nature of

the employment. See Ferrera v. A.C. Nielsen, 799 P.2d 458, 461 (Colo. App.

1990). Further, nothing in the record indicates that plaintiff presented evidence

that the progressive discipline procedures set forth in the manual were treated as

mandatory in practice. See Mariani v. Rocky Mountain Hosp. & Medical Serv.,

902 P.2d 429, 435 (Colo. App. 1994) (relying on Evenson v. Colorado Farm

Bureau Mut. Ins. Co., 879 P.2d 402, 409 (Colo. App. 1993)).

             A terminated Colorado public employee may state a claim for
      relief for deprivation of property without due process of law if rules
      or mutually explicit understandings, which the public employer was
      authorized to enact or make the basis of a binding agreement, create
      a sufficient expectancy of continued employment to give the
      employee a legitimate claim of entitlement.


Adams County Sch. Dist. No. 50, 791 P.2d at 695. Because nothing in the

employee manual created a contract or promise under Colorado law, neither can

plaintiff show that Colorado law supplies a basis for his claim that he had a




4
      The manual states that adverse actions may include a written reprimand,
probation, suspension, and dismissal. Appellant’s App. at 70.

                                        -6-
legitimate claim of an entitlement in the form of continued employment, so as to

create a property interest. See id. at 694-96.

      Finally, plaintiff argues that defendant deprived him of his liberty interest

because it impeded or foreclosed the opportunity to obtain public law enforcement

employment. He maintains that forcing his resignation on the same day as

publication of the editorial containing accusations of harassment, and the refusal

of official statement after the follow-up article and editorial evidences

defendant’s adoption of the stigmatizing statements. With regard to liberty

interest, this court has held that

      [w]hen a public employer takes action to terminate an employee
      based upon a public statement of unfounded charges of dishonesty or
      immorality that might seriously damage the employee’s standing or
      associations in the community and foreclose the employee’s freedom
      to take advantage of future employment opportunities, a claim for
      relief is created.

Melton v. City of Oklahoma City, 928 F.2d 920, 927 (10th Cir. 1991). We stated

in that case that “a distinction must be drawn between the mere reporting of a

claim made by someone and the adoption of that claim as a basis for punitive

action against a public employee.” Id. at 930. Further, “the mere reporting of the

defamatory accusations of a third party will not make governmental agencies or

governmental officials liable for the deprivation of a protected liberty interest.”

Id. “That conclusion does not hold, however, if the governmental entity overtly



                                          -7-
or impliedly adopts those defamatory accusations as the basis for punitive action

against an employee.”

      In McGhee v. Draper, 564 F.2d 902 (10th Cir. 1977), we applied that

adoption theory in holding that a factual question remained as to whether a school

board had effectively created and disseminated an allegedly false impression

about the plaintiff, thus violating her liberty interest. In that case, the plaintiff

was a teacher whose contract was not renewed following a series of school board

meetings at which alleged improprieties were discussed. Although the board

never explicitly adopted any of the allegations or listed them as cause for

nonrenewal of the plaintiff’s contract, it produced and publicly disseminated

hundreds of copies of the board minutes containing the allegations and

discussions. That situation is distinguishable from this case, where plaintiff has

presented no evidence whatsoever that defendant created or disseminated

allegedly false accusations. See Melton, 928 F.2d at 931 (distinguishing McGhee

because, in McGhee, there was no question that the employer disseminated the

defamatory accusations, evidencing the board’s adoption of the accusations).

Plaintiff points only to the timing of his forced resignation and defendant’s

refusal to comment on the situation. It is simply too big a stretch to attribute to

defendants the editorial comments published in a local newspaper, which were




                                           -8-
based on the allegations of harassment by unidentified sources, in light of the

complete dearth of evidence as to implied adoption.

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED.



                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




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